McMinimee v State of New South Wales (South Western Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McMinimee v State of New South Wales (South Western Sydney Local Health District) [2022] NSWPIC 154
APPLICANT:	Valerie McMinimee
RESPONDENT:	State of New South Wales (South Western Sydney Local Health District)
MEMBER:	Catherine McDonald
DATE OF DECISION:	12 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Aggregation of impairment arising from separate events; Ozcan v Macarthur Disability Services Ltd, Secretary, New South Wales Department of Education v Johnson; whether the worker suffered a consequential condition as a result of the first injury; Kumar v Royal Comfort Bedding Pty Ltd; Held– the worker suffered two injuries, aggregation not possible; liberty to apply with respect to referral to Medical Assessor.
DETERMINATIONS MADE:	1. I find that the applicant suffered an injury to her right arm and neck on 7 March 2011 and an injury to her left arm on 10 August 2011. 2. I find that the applicant did not suffer a consequential condition on 10 August 2011. 3. I grant liberty to the parties to apply by email within seven days as to the form of any referral to a Medical Assessor.

STATEMENT OF REASONS

BACKGROUND

Valerie McMinimee has been employed by the State of New South Wales (the State) to work in the South Western Sydney Local Health District since 1991, initially as an enrolled nurse and later in an administrative role. Her case is that on 7 March 2011 she suffered an injury to her right shoulder and elbow. While on suitable duties in August 2011, she pulled a compactus and suffered a consequential condition in her left shoulder arm and neck. In 2019, while favouring her right elbow and left shoulder, she suffered a consequential condition in her right shoulder and arm. She seeks permanent impairment compensation in respect of her right upper extremity, left upper extremity, cervical spine and scarring.
The State does not dispute that Ms McMinimee suffered injuries in the course of her employment which were compensable, nor does it dispute that each of the injurious events occurred. It disputes that the impairments suffered as a result of each injury or condition can be aggregated to recover permanent impairment compensation.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The claim was listed for telephone conference on 23 November 2021. Ms McMinimee amended her Application to Resolve a Dispute (ARD) to plead the date of injury as 7 March 2011.
The State’s Reply included a long list of issues in the box labelled “Any other issues” which were said to be for clarity. Because Ms McMinimee did not rely on the nature and conditions of her employment, paragraphs 1 to 5 were struck out, as was paragraph 22.
At the conciliation conference and arbitration hearing on 20 January 2022 Mr Moffet of counsel appeared for Ms McMinimee and Mr Robison of counsel appeared for the State.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
After long negotiations, it became clear that the matter would not resolve and that there was insufficient time for both counsel to address. An order for written submissions was made and submissions were filed in accordance with those orders.

EVIDENCE

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply, and
(c)    the State’s Applications to Admit Late Documents dated 24 February 2022.
The ARD contains numerous pages. Mr Robison conceded in his submissions that the summary in Mr Moffet’s submissions helpfully summarised much of the clinical evidence regarding the nature of that pathology. I have therefore based the following summary of the evidence on the matters referred to in Mr Moffet’s submissions, supplemented where relevant.
The claim made in the ARD is in respect of Ms McMinimee’s right and left upper extremities as a whole and her cervical spine. There is no claim in respect of the injury to Ms McMinimee’s right wrist and hand. Though the original injury included Ms McMinimee’s right elbow, Dr Dixon, qualified for Ms McMinimee, did not make any assessment of whole person impairment (WPI) in respect of it.
Ms McMinimee was paid permanent impairment compensation in respect of a pre-existing back injury. Despite references to that injury in the medical evidence, she does not seek further permanent impairment compensation for her back.

Ms McMinimee’s medical evidence

Ms McMinimee suffered a number of pre-existing and intercurrent conditions, including osteopetrosis (marble bone disease). In her statement she identified an incident on 26 April 2002 when she suffered pain in her left shoulder helping a patient in bed at Fairfield Hospital. On about 24 February 2006 she suffered low back pain and left hip pain reaching for a bundle of photocopy paper. That injury was the subject of a claim for compensation. She does not however rely on the nature and conditions of her employment in this claim.
On 7 March 2011 Ms McMinimee was working in community health. She slipped and fell at an elderly patient’s house while taking out rubbish. She suffered pain in her shoulders, hands, right hip, legs and right elbow. She saw a doctor at Fairfield Hospital and underwent X-rays of her pelvis, right hip and right femur[1], right tibia and fibula, right humerus and left hand[2]
[1] ARD p 523.
[2] ARD pp 91-93.
On the following day Ms McMinimee saw her general practitioner Dr Rahimpour and told him that she had a fall at work the previous day landing on her right side[3]. She suffered pain in her left middle MCP joint, her right arm, right hip and right leg.
[3] ARD p 198.
Ms McMinimee had repeat X-rays of her right humerus on 21[4] and 31 March 2011[5]. On 1 April 2011, Dr Murphy of the General Practice Unit of Fairfield Hospital referred Ms McMinimee to Dr C Davé, noting that she had pain in her left hand and right elbow and to a lesser extent in her right shoulder and back. Dr Murphy wrote to Dr Davé again, attaching the report of the fourth X-ray of her right humerus. Dr Murphy said that, for the first time, attention had been drawn to a lucent line in the inferior aspect of the glenoid. Dr Murphy noted that Ms McMinimee had ongoing upper limb pain.
[4] ARD p 88.
[5] ARD p 87.
Ms McMinimee saw Dr Rajagopalan, a geneticist, on 16 May 2011 to discuss genetic testing results for her underlying condition of osteopetrosis. Dr Rajagopalan noted that Ms McMinimee had recently suffered a fracture of the proximal right radius and humeral condyle in a fall while going upstairs.[6]
[6] ARD p 539.
On 28 June 2011, Dr Davé reviewed recent CT scans of Ms McMinimee’s right elbow and shoulder and said that the scans were satisfactory and “[s]he can start work light duties desk based and mobile.”[7] Ms McMinimee said in her statement that she was off work for two months and then returned on selected duties which involved working in the office[8].
[7] ARD p 593.
[8] ARD p 25.
Ms McMinimee said in her statement dated 22 November 2019 that between 3 and 10 August 2011 she had an onset of pain in her low back, neck and shoulders, resulting from a long period of sitting in keyboarding, taking telephone calls and other office work. On about 10 August 2011 she pulled out a compactus to retrieve a file and suffered pain in her left shoulder. In her supplementary statement she said that she was using her left arm to protect her right arm.[9]
[9] ARD p 16.
On 23 September 2011 Ms McMinimee saw Dr Chowdhury at the General Practice Unit at Fairfield Hospital. Dr Chowdhury referred Ms McMinimee to Dr Davé and said[10]:
“She had an injury at work again about 4 weeks ago and thought she had strained her left shoulder. As the pain was persisting we organised a bone scan despite her osteopetrosis and this revealed a left neck of humerus fracture. She now has 2 WorkCover claims for these. I have organised a sling and we are trying to manage her pain. She is currently off work as driving is very difficult with both arms fractured.”
[10] ARD p 570.
On 26 September 2011, the State’s insurer approved a consultation with Dr Davé for Ms McMinimee’s left neck and shoulder injury. Dr Davé wrote to Dr Chowdhury on the same day saying that she had “reinjured” her left shoulder on 10 August 2011[11].
[11] ARD p 577.
On 1 November 2011 Mr Van Den Berg, physiotherapist, wrote to Ms McMinimee’s general practitioner, Dr Chowdhury in respect of treatment to her left shoulder, left lower cervical and interscapular areas[12].
[12] ARD p 116.
On 10 November 2011, Dr Davé wrote to Dr Chowdhury noting that an MRI did not show any fracture but he queried if she suffered bursitis. He noted that she had similar pain in the right shoulder and he recommended a subacromial injection of cortisone in the left shoulder.[13]
[13] ARD p 119.
On 16 November 2011 Mr Van Den Berg noted that Ms McMinimee had a slight improvement in pain but continued to suffer pain in her lower cervical spine, trapezius and interscapular area as well as shoulder pain.[14] His note for 30 November 2011 was to similar effect.[15]
[14] ARD p 123
[15] ARD p 124.
Dr Davé recommended surgery on 19 January 2012. He said that Ms McMinimee required arthroscopy, left shoulder acromioplasty and excision of the outer end of the clavicle.[16]
[16] ARD p 121.
On 7 February 2012 Ms McMinimee had a car accident on the way to work and saw her general practitioner on that day, who recorded that she had not suffered any injuries but felt stiffer. On 22 February 2012 Dr Chowdhury noted that Ms McMinimee was feeling better after her accident but the pain in her right elbow and left scapula were ongoing.[17]
[17] ARD pp 341-342.
Ms McMinimee underwent the proposed left shoulder acromioplasty on 14 May 2012. On 20 June 2012 she saw Mr Prasad, physiotherapist, who said there was evidence of a cervical spine component to her symptoms and the dysfunctional shoulder movement patterns were likely to have contributed to it.[18] Dr Chowdhury agreed on 16 July 2012 noting that Ms McMinimee has not improved much since the surgery. She underwent an MRI scan of the left shoulder and survival spine on 27 August 2012. The latter showed a heat of posterior disc bulging, most pronounced at C5/6 where there was a central and left paracentral disc protrusion causing effacement of the left anterolateral aspect of the cord.[19].
[18] ARD p 556.
[19] ARD p 98.
On 16 July 2012 Dr Chowdhury referred Ms McMinimee to Dr Lam in respect of “two separate injuries at work last year – a fracture of her right radial neck in March 2011 and bursitis of her left shoulder in August 2011”. Dr Chowdhury noted that she had had pain in her right elbow and left shoulder since.[20]
[20] ARD p 117 and the State’s Application to Admit Late Documents dated 24 February 2022.
On 16 September 2014 Dr Davé noted that Ms McMinimee had managed to get back to full hours but was finding it difficult to continue working. She was working in administrative role and her job involves a large amount of sitting and repetitive work she described a pain in her neck going down her left arm and Dr Davé considered that Ms McMinimee was not coping with her current job and needed permanently modified duties, working three days per week.[21]
[21] ARD p 517.
Ms McMinimee said in her statement that she suffered a right wrist and forearm pain on 8 June 2017 performing clerical duties. She underwent a right wrist De Quervain’s procedure on 6 November 2017 when surgery on 23 July 2018 to her right index finger.
Ms McMinimee said that she experienced right-sided back pain on 21 August 2019 operating room dividing doors as a demonstration for a work colleague. She said that as at 22 November 2019 she continued to suffer pain in her neck and in her left and right shoulders, and pain and weakness in her right elbow, among other things.
In her supplementary statement, Ms McMinimee and said that in mid 2019 she started experiencing pain soreness in her right shoulder which came on against a background of an extended period of abuse caused by a painful left shoulder and right elbow. She said that as at 17 May 2021 she was working three days a week five hours a day and had ongoing pain and restrictions. She said that she believes that the incident on 7 March 2011 was very significant and that as a consequence of that incident her job changed from nurse to administration worker.
Ms McMinimee’s solicitors qualified Dr Dixon who reported on 17 September 2020[22] after an examination undertaken by videoconference. He had a history of the injury on 7 March 2011 when Ms McMinimee injured her right and shoulder and elbow. He recorded a history of the August 2011 injury and said that Ms McMinimee was using her left arm to protect her right “and this action caused a consequential injury to her left shoulder.” He noted the subsequent surgery and the 2017 treatment to Ms McMinimee’s right wrist and index finger. He noted that she had been treated at Sydney Pain Management Centre in 2019. Dr Dixon listed his diagnoses which included:
“Post traumatic stiffness of the left shoulder consequential to her right shoulder injury due to overuse with some trapezial muscle pain;”[23]
[22] ARD p 48.
[23] ARD p 54.
With respect to causation, Dr Dixon said that “[t]he above conditions are causally related to the nature and conditions of her employ.” Later in the report he said “[t]he consequential injury to her left shoulder, being due to overuse while favouring her right shoulder, is confirmed.”[24]
[24] ARD p 56.
Dr Dixon assessed permanent impairment and aggregated the injuries to reach his assessment of WPI. He assessed 5% WPI in respect of Ms McMinimee’s cervical spine, 12% WPI in respect of her right upper extremity, only in respect of her shoulder, 6% WPI in respect of her left shoulder and 1% under the Table for the Evaluation of Minor Skin Impairments in respect of tender scarring of her left shoulder.
I note that Dr Dixon referred to resection of the distal clavicle when making his assessment of impairment arising from Ms McMinimee’s right shoulder. As I understand the case, she has not undergone surgery to her right shoulder.
Dr Dixon prepared a supplementary report on 29 July 2021 in which he identified the injuries on 7 March 2011 and in August 2011. He noted that in mid-2019 Ms McMinimee started experiencing increasing pain and soreness of the right shoulder against a background of an extended period of overuse resulting from a problematic and painful left shoulder problem and a painful and restricted right elbow. He added 3% permanent impairment to his assessment, resulting in a total assessment of 29% WPI. With respect to the left shoulder injury he said:
“The left shoulder condition, which was precipitated by the compactus incident in August 2011, occurred because she was unable to use her right upper extremity and had to pull on the heavy compactus at work using her left arm, in order to protect her right arm and while her right shoulder remains symptomatic, she was using her left arm to pull the heavy compactus, resulting in pain in the left shoulder, due to overuse.”
I was not able to locate any contemporaneous medical evidence in respect of the 2019 increase in right shoulder pain, nor was I taken to any.

The State’s medical evidence

The State relied on a series of reports by Dr Machart. His reports dated 6 April 2006, 16 August 2006 and 7 June 2007 dealt with the injury to her back and are not relevant to the issues to be determined in these proceedings.
Dr Machart reported on 23 May 2017. He summarised the history with respect to Ms McMinimee’s back and he set out a history of the incidents in 2011 and August 2011. He noted that Ms McMinimee experienced pain in her neck at the same time that she hurt her shoulder, which was radiating into the left side of her neck. She experienced ongoing pain in the shoulder perpetuated by looking at a computer screen and this was worse in August 2014. Dr Machart said that he would have expected an uneventful recovery from the fracture of the radial head in March 2011. He suggested that the severity of diminished movement of Ms McMinimee’s left shoulder appeared to be in excess of the objective pathology and was the product predominantly of abnormal illness behaviour. He said that she suffered cervical spondylosis and that there may be a contribution from her work on the computer. It may also have been strained when she hurt her shoulder. He considered that the injuries should be assessed separately but did not explain why other than to say there was no reason to believe they were related to each other.
Dr Machart reviewed and commented on unidentified material in a report on 16 August 2019 after a further assessment. Again he said that the examination was complicated by pain behaviour. He did not observe any ongoing evidence to support Ms McMinimee’s claims. On this occasion he said that the pain after looking at a computer screen was a manifestation of existing pathology and not an aggravation or extension of existing cervical spondylosis.
A further examination was conducted on 25 September 2019, resulting in a report dated 3 October 2019 in respect of the right wrist and forearm pain suffered by Ms McMinimee.

Claim and dispute notices

The permanent impairment claim made on 25 November 2020 was based on Dr Dixon’s report dated 17 September 2020 and sought compensation for 22% WPI in respect of the right shoulder, left shoulder, cervical spine and scarring. Particulars of the claim were sought and were provided on 7 December 2020. That letter confirmed that Ms McMinimee suffered an injury on 7 March 2011 and said that the injury in August 2011 was a consequential condition. There is no reference in that letter to Ms McMinimee’s onset of further pain in 2019 nor to her right wrist and hand condition which was treated in 2017 and 2018.
In a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 20 November 2019, the State’s insurer relevantly said that the injuries suffered to Ms McMinimee’s lumbar spine, cervical spine, left shoulder and right elbow were frank injuries which were required to be assessed as separate and discrete injuries under s 322 of the 1998 Act. It relied on the decision of Cemco (Australia) Pty Ltd t/as Carrell’s Engineering & Mining v Carrell[25]. It said that the injuries were suffered on separate dates. The notice referred to Ms McMinimee’s lumbar spine and to medical evidence which is not relied on in these proceedings.
[25] [2009] NSWWCCPD 76.
A further notice was issued on 9 April 2021. It was in substantially the same terms and referred to the 2021 reports of Dr Machart.

SUBMISSIONS

After summarising the evidence, Mr Moffet said that a common sense approach was to be taken in the evaluation of causation, citing Doyle v Manly Pacific International Hotel[26], Kumar v Royal Comfort Bedding Pty Ltd[27] and Palmer v Secretary, Department of Education.[28] He said that the close causal relationship between the incidents on 7 March 2011 and 10 August 2011 puts the injuries in the same chain of causation. He said that Dr Dixon embraced the causal relationship and that Dr Machart might have too if asked.
[26] [1998] NSWCC 44 at [71]-[77].
[27] [2021] NSWWCCPD 8.
[28] [2021] NSWPIC 73.
In an addendum, Mr Moffet noted that an argument similar to that raised in the s 78 notice was addressed in Ozcan v Macarthur Disability Services Ltd[29] (Ozcan) by Macfarlane JA at [13] to [25].
[29] [2021] NSWCA 56.
Mr Robison said that the State conceded that Ms McMinimee suffered injuries which are prima facie compensable but said that Mr Moffet’s submissions did not demonstrate a persuasive case theory on the aggravation of pathology. He said that the injuries were to multiple body parts and those body parts were not injured in a single accident, in the course of the same nature and conditions of work nor as a consequence of another injury.

Mr Robison said that the injury to Ms McMinimee’s left arm and neck opening the compactus did not result from the right shoulder injury because the injury would have been identical even without an injury to the right arm. Any need to protect the right arm is not “adequately picked up” by the doctors who have provided reports. Mr Robison said that Dr Dixon’s statement that the conditions were causally related to the nature and conditions of Ms McMinimee’s employment was a bare ipse dixit. Dr Dixon’s supplementary report notes that Ms McMinimee suffered overuse but said nothing about the nature of the overuse.
With respect to the evidence from treating practitioners, Mr Robison said that there was little assistance with respect to causation. Dr Chowdhury described the injuries as separate in a report dated 16 July 2012. Dr Davé focused on treatment rather than causation.
Mr Robison said that Dr Machart provided a coherent analysis which showed the absence of a link. He described the injuries as minor which weighed heavily against the case for a consequential condition. Mr Robison said that Dr Machart “explained” the intermittent nature of the clerical work between 2011 and 2014.
Mr Robison said that Department of Juvenile Justice v Edmed[30] (Edmed) stands for the proposition that if the same body part is injured more than once with identical pathology, the whole of the pathology is to be aggregated even if caused by different events.[31] Different pathology can be aggregated if it occurred in the same event.
[30] [2008] NSWWCCPD 6.
[31] At [27].
In Ozcan, the Court of Appeal said that pathology can be aggregated if the subsequent event was a result of the first event and Mr Robison said that the case tuned on its own facts. Mr Robison said that it was necessary to consider the three circumstances described by the Court of Appeal in Secretary, New South Wales Department of Education v Johnson[32] (Johnson) to determine whether a subsequent injury has the necessary nexus to the original injury to say that results from the earlier injury:
“a.     Where the subsequent injury would not have occurred had the worker not been in the physical condition caused by the earlier injury;
b.     Where the subsequent injury would have occurred in any event, but the damage sustained was greater because of the original injury;
c.     Where the subsequent injury would have occurred had the worker been in a normal state of health and the injury does not aggravate the original injury.”
[32] [2019] NSWCA 321.
Mr Robison noted that a degree of common sense must apply, referring to Kooragang Cement Pty Ltd v Bates[33].
[33] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796
In reply, Mr Moffet said that Ms McMinimee did not allege that she had impairments arising from the same pathology so that she was not seeking an aggregation under s 322(2) as discussed in Edmed. She sought an evaluation of permanent impairment under s 322(3) as discussed in Ozcan. If the consequential condition results from the injury on 7 March 2011 then the injury and condition are to be referred to a Medical Assessor. The question is one of fact, citing Ozcan at [26].
Mr Moffet said:
“In addition, her version of moving the compactus with one arm to protect her injured arm is completely credible. Common knowledge would say that a compactus is supposed to carry substantial weight in its rolling shelves and it is common and expected for its shelves to be moved by a person using both arms.
The point has particular application to someone, such as the applicant, who is diminutive in size (147 cm and 50 kilograms (ARD p51)). There is no evidence of material weight loss prior to the recording of her weight by Dr Dixon.”

FINDINGS AND REASONS

Section 322 of the 1998 Act provides:
“322   Assessment of impairment
(1)     The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2)     Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3)     Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.
…”
Ms Ozcan suffered injuries to her lumbar spine, thoracic spine and right shoulder in 2011. In later incidents on two dates in 2012 she injured her thoracic and lumbar spine. An Approved Medical Specialist assessed permanent impairment and aggregated the total assessed impairment arising from the spinal injuries but did not include the impairment arising from the shoulder injury. A Presidential Member of the Workers Compensation Commission held that impairment arising from the shoulder injury could not be aggregated with that arising from the spinal injuries because it was suffered in a different injurious event, did not materially contribute to subsequent spinal injuries and was “not the same injury (pathology)”.
Macfarlane JA, with whom the other members of the Court agreed, said:
“First, Ms Ozcan submitted that the Deputy President was correct to add the WPI percentages referable to the thoracic and lumbar spine injuries suffered in the second and third incidents to those suffered in the first incident because those subsequent injuries were materially contributed to by the spinal injuries suffered in the first incident. As the Deputy President held (at [129]-[130]), this causal connection placed the injuries in the second category described in State Government Insurance Commission v Oakley (1990) 10 MVR 570 at 573. That second category was identified in Oakley as one ‘where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, [with the result that] the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence’ (at 573). This approach is simply an application of s 65(1) of the 1987 Act that describes the degree of permanent impairment for which compensation is payable as that which ‘results’ from the injury in question and s 65(2) which requires injuries ‘arising out of the same incident … to be treated as one injury …’.
Secondly Ms Ozcan argued that, in these circumstances, it was clear that both the right shoulder injury and the thoracic and lumbar spinal injuries ‘resulted from’ and ‘arose out of’ the first incident: the first spinal injuries and the shoulder injury admittedly did so and the effect of the first step in Ms Ozcan’s argument (…) was that the spinal injuries suffered in the second and third incidents also did so. In consequence, they should all have been ‘treated as one injury’ and ‘assessed together’, as directed by s 65(2) of the 1987 Act and s 322(3) of the 1998 Act, leading to a 15% WPI finding.
The Deputy President reached a different conclusion because she found that the right shoulder injury ‘did not materially contribute to the impairments of the lumbar or thoracic spine and was not the same injury (pathology)” (…). This was not however, with respect, the issue that needed to be addressed. The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident, that is, that of 14 November 2011.”
His Honour said that it was not necessary to consider the correctness of Edmed because it did not have any limiting effect on s 322(3).
In Johnson, Emmet AJA set out the three categories identified in Oakley[34]:
“In support of the second proposed ground the appellant invoked, and placed heavy reliance on, the decision of Malcolm CJ in State Government Insurance Commission v Oakley (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003. In that case, the Chief Justice identified three categories where the issue of causation involves consideration of the effect or impact of a subsequent injury on the determination of the cause of an earlier injury (or, perhaps more accurately, the assessment of damages consequential upon an earlier injury). The observations were made in the context of proceedings at common law in which negligence is alleged, but are equally applicable to the assessment of the degree of permanent impairment resulting from injury under no-fault legislation such as the WC Act. His Honour identified the three categories as:
‘(1)where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant’s negligence, the added damage should be treated as caused by that negligence;
(2)where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant’s negligence; and
(3)where the further injury results from a subsequent accident which would have occurred had the plaintiff been in normal health and the damage sustained include no element of aggravation of the earlier injury, the subsequent accident and further injury should be regarded as causally independent of the first.’ ”
[34] At [126].

Application

The State does not dispute that Ms McMinimee injured her right arm in March 2011 or her left shoulder in August 2011. It says that they are separate injuries.
As I understand Mr Moffet’s submissions, Ms McMinimee relies on the first category in Oakley to causally link the August 2011 injury with that in March. Ms McMinimee was on selected duties and working in an office rather than as a nurse. That change in her employment had come about because of the March 2011 injury and Dr Davé had certified her fit for light duties which were desk based and mobile.
The cause of the left shoulder injury is not described in any of the contemporaneous medical evidence. Ms McMinimee said that she opened the compactus with her left arm because she was protecting the right. There is little evidence about what happened on that day. None of the medical evidence refers to the need to protect her right arm though it is reasonable in the context of the treatment she was undergoing and the fact her duties had changed that that might be the case.
However, as Mr Robison pointed out, Ms McMinimee may well have suffered a left shoulder injury on 3 August 2011 when opening the compactus, irrespective of the condition of her right arm.
In the absence of a description of the compactus or the method of opening it, I am not able to accept Mr Moffet’s submission that I can draw the conclusion that it was heavy or had to be moved with both hands. It may well have been heavy and it may be a safe work practice to use both hands or it might have rolled easily. Ms McMinimee did not give evidence as to how she would have opened it under normal circumstances. The ability of the Commission’s to “inform itself on any matter as the Commission thinks appropriate and the proper consideration of the matter … permits” in s 43(2) of the Personal Injury Commission Act 2020 does not allow me to fill in obvious gaps in the evidence.
The only evidence about what happened on that day is found in Ms McMinimee’s supplementary statement and Dr Dixon’s report. Ms McMinimee did not describe the compactus or the task in any detail and the reference in Dr Dixon’s report is almost identical to the statement. Later in his report, Dr Dixon made two separate references to overuse.
In his second report, Dr Dixon again referred to the incident with the compactus. He described it as heavy, though there is no reference to it being heavy in Ms McMinimee’s statements. He said that she was unable to use her right arm and that her right shoulder remained symptomatic and he again referred to overuse.
Ms McMinimee’s own evidence is in the form of a conclusion. She did not describe the compactus in any way nor the way in which she used her left arm. She did not describe her height and weight or any difficulty in moving the compactus. The reference to her weight on which Mr Moffet relied came from Dr Dixon’s report.
The brevity of that evidence does not permit me to determine whether the event on 10 August was a consequence of the right arm injury or a separate injury.
In Kumar v Royal Comfort Bedding Pty Ltd[35] Roche DP considered whether a worker had suffered a consequential condition for the purpose of determining if the need for surgery was had resulted from the original injury. He said:
“While Mr Kumar’s evidence is less than ideal and the general preparation of his case by his solicitors has been sloppy, his evidence of experiencing a lot of pain in his right shoulder having to lift himself after his back surgery is unchallenged and not implausible. His symptoms were sufficient for him to seek medical treatment. Dr Di Mascio and Dr Ireland were satisfied that an aggravation had occurred in the manner alleged by Mr Kumar. In these circumstances, and given that Dr Wallace did not address the proper question, the compelling conclusion is that Mr Kumar’s right shoulder symptoms in June 2010 resulted from his accepted back injury.”[36]
[35] [2012] NSWWCCPD 8.
[36] At [59].
Evidence of that nature was not provided here. It was important that detailed evidence about the events of 3 August be available when the State conceded that Ms McMinimee had suffered an injury on that day.
Dr Dixon’s statement as to a condition caused by overuse is a “bare ipse dixit”. Even so, that is not the case that Ms McMinimee brings. There is no evidentiary basis for the opinion in Dr Dixon’s second report and he did not see Ms McMinimee before preparing it so that it is not possible to conclude that he obtained that history from her.
The requirements for expert evidence were set out in (among other cases) South Western Sydney Area Health Service v Edmonds[37] [2007] NSWCA 16 McColl JA said:
“In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that ‘[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it’. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:
‘… the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.’
This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that ‘[t]here is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission and decisions whether to allow cross-examination or to limit it are discretionary’ (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be ‘logical and probative’ and ‘unqualified opinions are unacceptable’.
In my view Dr Rivett’s statement that ‘in general all the problems are work-related’ which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.”
[37] [2007] NSWCA 16 at [130]-[132].
Dr Dixon’s evidence is similarly not probative.
There is therefore no medical evidence which considers and supports Ms McMinimee’s case about the causation of her left shoulder condition. There is no basis to find that the condition would not have occurred but for the right arm injury in March 2011.
As the evidence stands, I am unable to determine that the incident on 3 August 2011 was in fact a consequential condition. I do not agree that the impairments can be aggregated for the assessment of permanent impairment.
Counsel did not provide submissions about whether and how the consequences of the 2019 condition should be aggregated with that arising in March 2011.
Counsel also did not address as to the orders which should be made if I did not find that aggregation was possible. If not for my observations about Dr Dixon’s assessment at [34] and [35] above, it may have been appropriate to the matter to the President to refer Ms McMinimee’s right arm and neck conditions for assessment by a Medical Assessor. I direct the parties to consider Dr Dixon’s report and the form of any referral which can and should be made. I grant liberty to apply by email in that regard within the next seven days.
I find that Ms McMinimee suffered an injury to her right arm and neck on 7 March 2011 and an injury to her left arm on 10 August 2011.
I find that the applicant did not suffer a consequential condition on 10 August 2011.
I grant liberty to the parties to apply by email within seven days as to the form of any referral to a Medical Assessor.

[2022] NSWPIC 154

12 April 2022