Moorby v J & D Stephens Pty Ltd & Ors

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Moorby v J & D Stephens Pty Ltd & Ors [2024] NSWPIC 36
APPLICANT:	Kevin John Moorby
FIRST RESPONDENT:	Damien Flannery
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
THIRD RESPONDENT:	J & D Stephens Pty Ltd
MEMBER:	John Turner
DATE OF DECISION:	30 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury to the lumbar spine, neck, both shoulders, both elbows, both wrists, both knees and both ankles as the result of the nature and conditions of the applicants employment as a shearer and/or shedhand; dispute as to who was the last employer for the purposes of section 16(1)(b); claim for permanent impairment compensation pursuant to section 66, weekly compensation pursuant to sections 36 and 37 and medical and treatment expenses pursuant to section 60; Taylor v J & D Stephens Pty Ltd, Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond & Pegrin Pty Ltd, Perry v Tanine Pty Ltd t/as Ermington Hotel, Federal Broom Co Pty Ltd v Semlitch, Cant v Catholic Schools Office, AV v AW, Ariton Mitic v Rail Corporation of NSW considered and applied; Held – award for the third respondent; that the applicant sustained injury on 14 December 2017 (deemed) to his lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists in the course of his employment as a shearer with the applicant’s employment as a shearer being the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of a disease(s) of the applicant’s lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists; pursuant to section 16(1)(b) the first respondent, being the employer who last employed the applicant as a shearer, to be liable for any compensation payable; the applicant had no current work capacity from 15 December 2017 to 1 April 2018, from 19 May 2018 to 20 August 2018, and from 17 April 2019 to 2 December 2019; the applicant had pre-injury average weekly earnings for the 12 months to 14 December 2017 of $890.
DETERMINATIONS MADE:	The Commission determines: 1. Award for the third respondent. 2. That the applicant sustained injury on 14 December 2017 (deemed) to his lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists in the course of his employment as a shearer with the applicant’s employment as a shearer being the main contributing factor to the aggravation, acceleration, exacerbation and/or deterioration of a disease(s) of the applicant’s lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists. 3. Pursuant to s 16(1)(b) of the Workers Compensation Act 1987 (the 1987 Act) I find that the first respondent, being the employer who last employed the applicant as a shearer, to be liable for any compensation payable. 4. That the applicant had no current work capacity: (a) from 15 December 2017 to 1 April 2018; (b) from 19 May 2018 to 20 August 2018, and (c) from 17 April 2019 to 2 December 2019. 5. That the applicant had pre-injury average weekly earnings (PIAWE) for the 12 months to 14 December 2017 of $890. The Commission orders: 6. The second respondent is to pay the applicant: a. $845.50 per week from 15 December 2017 to 15 March 2018 pursuant to s 36 of the 1987 Act; b. $712 per week from 16 March 2018 to 1 April 2018 pursuant to s 37 of the 1987 Act; c. $722.40 per week from 19 May 2018 to 20 August 2018 pursuant to s 37 of the 1987 Act; d. $735.20 per week from 17 April 2019 to 30 September 2019 pursuant to s 37 of the 1987 Act, and e. $740 per week from 1 October 2019 to 2 December 2019 pursuant to s 37 of the 1987 Act. 2. The second respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act for injury sustained to the applicant’s lumbar spine, neck, both knees, both ankles, both shoulders, both elbows and both wrists. 3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 14 December 2017 – deemed. b. Body systems / parts: i. lumbar spine; ii. cervical spine; iii. right lower extremity (knee and ankle); iv. left lower extremity (knee and ankle); v. left upper extremity (shoulder, elbow and wrist), and vi. right upper extremity (shoulder, elbow and wrist). c. Method of Assessment: whole person impairment. 4. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute (ARD) and attached documents; b. second respondent’s Reply and attached documents except for pages 14 to 24 inclusive of the attached documents; c. third respondent’s Reply and attached documents, and d. this Certificate of Determination and statement of reasons. 5. The parties have liberty to apply within five days of the date of this Certificate of Determination in respect to the referral of both the right knee and the left knee to the Medical Assessor for impairment assessment as well as to the calculation of the PIAWE. 6. That the second respondent, Workers Compensation Nominal Insurer, is liable to make the payments as if it were the insurer of the first respondent at all relevant times.

STATEMENT OF REASONS

BACKGROUND

Kevin Moorby, the applicant, has brought proceedings in the Personal Injury Commissions (the Commission) in which he alleges that he has sustained disease injuries to his back, neck, both knees, both ankles, both shoulders, both elbows and both wrists whilst employed by:
(a) Damien Flannery, the first respondent, performing shearing and shed work which involved repetitive bending and lifting of heavy weights up until October 2017. The applicant alleges alternate deemed dates of injury of 1 October 2017 and 7 December 2017.
(b) J & D Stephens Pty Limited, the third respondent, performing work as a shedhand/wool roller which involved repetitive bending and lifting of heavy weights up until 18 May 2018 or 16 April 2019. The applicant alleges alternate deemed dates of injury of 18 May 2018 and 16 April 2019.

The Workers Compensation Nominal Insurer, the second respondent, has been joined to the proceeding due to the first respondent being uninsured for workers compensation.
The applicant claims:
(a) Weekly compensation for the periods 15 December 2017 to 1 April 2018, 19 May 2018 to 20 August 2018 and from 17 April 2019 to date and continuing pursuant to ss 36, 37 and 38 of the Workers Compensation Act 1987 (1987 Act);
(b) compensation pursuant to s 66 of the 1987 Act for impairment of his lumbar spine, cervical spine, right lower extremity (knee and ankle), left lower extremity (ankle), left upper extremity (shoulder, elbow and wrist) and right upper extremity (shoulder, elbow and wrist). and
(c) medical and treatment expenses pursuant to s 60 of the 1987 Act.
The second and third respondents have each filed and served a Form 2A – Reply to Application to Resolve a Dispute (Reply) with evidence in support. The first respondent has not filed and served a Reply and has not appeared or taken any part in these proceedings.
Notices issued on behalf of the second and third respondents pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) disputed liability on a variety of grounds. At the time of the arbitration hearing Mr Grimes of counsel, who appeared for the second and third respondents, advised that in respect to liability the only issue which remained in dispute was the identity of the relevant last employer for the purposes of ss 15(1)(b) and/or 16(1)(b) of the 1987 Act. Mr Grimes advised that all other previously notified disputes in respect to liability were abandoned, and it was also conceded that the applicant had sustained the injuries alleged to all relevant body systems and that at all relevant times the applicant was totally incapacitated for employment. Mr Grimes conceded that once it had been determined which employer was the last for the purposes of ss 15(1)(b) and/or 16(1)(b) of the 1987 Act the applicant could be referred to a Medical Assessor (MA) appointed by the Commission for assessment of impairment pursuant to s 66 of the 1987 Act in respect to all body systems claimed and that a general order for medical and treatment expenses pursuant to s 60 of the 1987 Act would also follow the decision as to liability.
No agreement has been reached by the parties as to the applicant’s pre-injury average weekly earnings (PIAWE).
It is the applicant’s evidence that he left school in second form at 13½ years of age in 1966.[1] After leaving school he worked as a shedhand for approximately one year before getting a job in the leaners pen. He commenced full time shearing in November 1967 following which he worked as a shearer.[2]
[1] ARD p 6.
[2] ARD p 6.
In or about 2002 the applicant sustained injury to his left knee whilst employed by Rodney Evans[3] when a sheep bumped the outside of his left knee as he was bringing a sheep from the catching pen out to the race. The applicant subsequently had left knee arthroscopic surgery at the hand of Dr Coyle. It is the applicant’s evidence that he was off work for a couple of months following the accident.[4]
[3] ARD pp 2-3.
[4] ARD p 5.
On 12 June 2007 the applicant sustained injury to his right knee whilst employed by Walter Merriman & Son Pty Limited.[5] Whilst shearing a sheep, the sheep doubled back between his legs. The applicant tried to push the sheep back out with his right knee when he felt excruciating pain in his right knee.[6] In August 2007 a right knee arthroscopy was performed. It is the applicant’s evidence that his right knee was “good” for about a week after the arthroscopy and thereafter the pain, discomfort and swelling returned. It was subsequently recommended by Dr McNicol that he have a total right knee replacement procedure. Dr McNicol performed a total right knee replacement on 27 November 2007.[7]
[5] ARD pp 2-3.
[6] ARD p 17.
[7] ARD pp 18-19.
It is the applicant’s evidence that on 27 January 2010 a settlement was reached pursuant to which he was paid $3,750 for 3% whole person impairment (WPI) of the left lower extremity for the injury sustained to his left knee on 7 March 2002 whilst employed by Rodney Evans.[8] A claims and settlement search confirms that the applicant received $3,750 pursuant to s 66 of the 1987 Act for an injury sustained on 7 March 2002.[9]
[8] ARD p 34.
[9] Second respondent’s Reply p 47.
On 1 March 2011 a Certificate of Determination – Consent Orders were issued in the then Workers Compensation Commission matter 10478/2010 in which the applicant brought proceedings against Walter Merriman & Son Pty Limited. Under the consent orders the applicant was compensated for 10% WPI of the right lower extremity for injury sustained on 12 June 2007 and 10% WPI for injury sustained to the right lower extremity on the deemed date of 22 May 2009. There was an award for the respondent in respect to a claim by the applicant for injury to the lumbar spine.[10]
[10] ARD p 108.
It is the applicant's evidence that in September 2016 he was about to push a sheep down a chute when it got its back right leg caught in a hole in his pants. The sheep started to struggle and threw itself backwards knocking out the applicant’s right leg which caused the applicant to fall landing on his bottom.[11] The applicant immediately experienced pain in his lower back. Whilst he had previously experienced lower back pain, he had always been able to get back to work shearing.[12]
[11] ARD p 50.
[12] ARD p 51.
It is the applicant’s evidence that he worked performing shearing for the first respondent from July 2017 up until October 2017.[13] It is the applicant’s evidence that this was the last time that he worked as a shearer. It is the applicant’s evidence that he then worked doing some wool classing, wool rolling and shedhand work up until about 13 December 2017. However, the applicant’s evidence is at times contradictory stating that he continued to shear up until ceasing work on 13 December 2017 just prior to undergoing back surgery. It does appear that the applicant did shear up to 13 December 2017 as it is the applicant’s evidence that from October to November 2017 the number of sheep that he could shear dropped significantly due to severe back pain.[14]
[13] ARD p 54.
[14] ARD p 71.
On 14 December 2017 the applicant had lumbar spine surgery being a double laminectomy at the L3/4 and L4/5 levels.[15] The applicant’s evidence inconsistent as to when he returned to work with the applicant variously stating that he was off work from 14 December 2017 until February 2018 when he returned to work doing a couple of days of wool classing for the first respondent,[16] that he was off work until 16 March 2018 when he returned to work as a shedhand for the third respondent,[17] that he was off work up until April 2018[18] when he commenced work with the third respondent in April 2018 where he worked as a shedhand mainly performing wool rolling and a little bit of roustabout work.[19]
[15] ARD pp 38 and 55.
[16] ARD p 55.
[17] ARD p 73.
[18] ARD p 56.
[19] ARD p 57.
It is the applicant’s evidence that after he finished performing shedhand work with the third respondent on 18 May 2018 prior to undergoing left knee replacement surgery.[20] A Ramsay Health Care Discharge Summary records that the left knee replacement surgery was performed on 29 May 2018.
[20] ARD pp 35 and 67.
The applicant remained in hospital following the left knee replacement surgery until about 4 June 2018.[21] He was off work until about 20 August 2018 when he returned to work for the third respondent until up until on or about 16 April 2019 performing wool rolling and shedhand work. During this period of time, he also assisted a young shearer and taught him how to shear sheep. It is the applicant’s evidence that he would have shorn about 10 sheep between August 2018 and April 2019 for which he was not paid. He also did four days of shedhand work for Kyle’s Local Shearing Services between August 2018 and early 2019. It is the applicant’s evidence that he last worked as a shedhand on 16 April 2019 whilst employed by the third respondent and that he has been totally incapacitated for any type of work from 17 April 2019.[22]
[21] ARD p 67.
[22] ARD pp 70 and 73.

ISSUES FOR DETERMINATION

At the commencement of the arbitration hearing Mr Grimes, counsel for the second and third respondents, advised that as there is no evidence to maintain that the applicant was a contractor of Damien Flannery, the dispute as to the applicant not being a worker or deemed worker for the purposes of the workers compensation legislation was no longer being relied upon. It was also no longer disputed in respect to the claim for weekly benefits compensation that the applicant was totally incapacitated. Mr Grimes also advised that there is no dispute that the applicant sustained injury to the body systems alleged and it was conceded that all body systems alleged could be referred to a MA for assessment of permanent impairment and that a general order for medical and treatment expenses could be made pursuant to s 60 of the 1987 Act.
The following issues remain in dispute:
(a)    liability – in particular the identity of the of the relevant last employer for the purposes of ss 15(1)(b) and 16(1)(b) of the 1987 Act;
(b)    the amount of the PIAWE, and
(c)    the quantum of the weekly benefits compensation payable.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 27 November 2023. Mr John Dodd, counsel, instructed by Mr McCabe appeared for the applicant, who was present. Mr Tom Grimes, counsel, instructed by Mr Thorn appeared for the second and third respondents. There was no appearance by the first respondent. The proceedings were conducted in-person. 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 have 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.
At the initial conference held in this matter on 28 September 2023 it was confirmed that the ARD had been served on the first respondent. The solicitors for the second and third respondents also confirmed that they had written to the first respondent but had not received a response. I requested that the solicitors for the second and third respondents write and telephone the first respondent to advise him of the conciliation conference/arbitration hearing listing and that a decision could be made against his interests without him appearing in the proceedings.
At the conciliation conference/arbitration hearing the solicitors for the second and third respondents confirmed that they had attempted to contact the first respondent as requested. They had made contact with the first respondent’s former solicitors who advised that the first respondent would not be appearing at the conciliation conference/arbitration hearing.
I am satisfied that the first respondent is aware of the proceedings and the conciliation conference/arbitration hearing. I am also satisfied that the first respondent is aware that a decision can be made against his interests in the proceedings without his appearing and that he has made a conscious decision not to appear or take any part in the proceedings and not to appear and take part in the conciliation conference/arbitration hearing. The matter therefore proceeded without the first respondent appearing.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    second respondent’s Reply and attached documents except for pages 14 to 24 inclusive of the attached documents, and
(c)    third respondent’s Reply and attached documents.
The applicant objected to the investigation report of Lee Kelly dated 4 October 2022 and the statement of Mr Damien Flannery dated 14 September 2022 on which the investigation report was based, which appears at pages 14 to 24 of the attachments to the second respondent’s Reply, being admitted into evidence on the grounds that the statement of Mr Flannery is unsigned. The second respondent conceded that it does not rely upon the said statement or the said investigation report.

Oral evidence

Neither party sought leave to adduce oral evidence.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

FINDINGS AND REASONS

Consideration and findings

Worker/deemed worker

By way of a notice given pursuant s 78 of the 1998 Act it had been disputed that the applicant was either a worker or a deemed worker of the first respondent for the purposes of the workers compensation legislation. At the commencement of the arbitration conference Mr Grimes, counsel for the second and third respondents, withdrew the dispute as to worker and deemed worker. In doing so Mr Grimes observed that there is no evidence to support the dispute. I agree with Mr Grimes observation that there is no evidence to support the dispute. It is the applicant’s evidence that he was directly employed by the first respondent and there is no evidence to the contrary. The applicant’s tax return for the financial year ending 30 June 2018 records that the applicant was employed by the first respondent.[23] I am therefore of the view that the applicant was employed by the first respondent and was a worker for the purposes of the workers compensation legislation.
[23] ARD p 217.

Injury

The applicant alleges that he has sustained disease injuries to his back, neck, both knees, both ankles, both shoulders, both elbows and both wrists due to his work as a shearer and as a shedhand which included wool rolling, wool classing and roustabout work.
Section 4 of the 1987 Act relevantly defines injury as follows:
“In this Act-
Injury-
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means-
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,..”
In Taylor v J & D Stephens Pty Ltd [2018] NSWCA 287, (Taylor) the Court of Appeal considered the meaning of a disease injury in the context of a “shearer’s back”. McColl AP at [34] stated:
“It can be seen that there are three components to a ‘disease injury’ – the existence of a ‘disease’, that the disease was contracted (or aggravated etc) in the course of employment, and that the employment was the main contributing factor to the contraction (or aggravation etc) of the disease. If all three are demonstrated, the worker has suffered a ‘disease injury’ within the meaning of s 4(b), and is entitled to benefits as prescribed by Part 3 of the WC Act.”
Turning to the first issue being the existence of a “disease”. In Cabramatta Motor Body Repairers (NSW) Pty Limited v Raymond & Pegrin Pty Ltd [2006] NSWWCPD 132 (Raymond) Roche ADP stated at [27]:
“The Arbitrator found that the Respondent Worker’s condition was a disease and referred to and relied on Darling Island Stevedoring & Lighterage Co Ltd v Hussey [1959] HCA 55; (1959) 102 CLR 482, Commissioner of Railways v Bain [1965] HCA 5; (1965) 112 CLR 246 and Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 580 to justify that conclusion. From those cases he concluded that a ‘disease is a reference to a pathological condition that continues to operate according to its pathological nature and which is commonly called a disease’…. The Arbitrator also relied on the decision of Judge Burke in Perry v Tanine Pty Ltd [1998] NSWCC 14; (1998) 16 NSWCCR 253 where his Honour quoted with approval the definition of disease in Blakiston’s Gould Medical Dictionary that a disease was a failure of the adaptive mechanisms of an organism to counteract adequately the stimuli or stresses to which it is subject, resulting in a disturbance in function or structure of any part, or organ or system of the body…. Applying those tests the Arbitrator concluded that the Respondent Worker’s condition was ‘properly categorised as a disease’…. I agree with that approach and the conclusion reached….”
In Perry v Tanine Pty Ltd t/as Ermington Hotel [1998] NSWCC 14; (1998) 16 NSWCCR 253 (Perry) Burke CCJ considered whether carpal tunnel syndrome was a “personal Injury” or a “disease” stating at [57]:
“In general it seems to me that carpal tunnel syndrome is a failure of an area of the body to cope with repeated stress imposed upon it and reacts to that stress by developing swelling, pain and loss of function as a consequence. That seems to me to be classically a disease process. Where work is the source of the relevant stress it connotes to me that the worker has received injury either by the contraction or aggravation of a disease.” (Emphasis added)
Dr Drew Dixon, orthopaedic surgeon, provided a forensic report to the applicant dated 18 June 2020 in which Dr Dixon reported that in his opinion the conditions of the applicant’s neck, shoulders, elbows, back, knees, ankles and the bilateral carpal tunnel syndrome can be categorised as disease conditions, being underlying pre-morbid pathological conditions.[24]
[24] ARD p 82.
Dr Robin Diebold, orthopaedic surgeon, who provided a forensic report to the second respondent dated 28 December 2022 is of the opinion that the diagnosis in all areas is one of degenerative disease.[25]
[25] ARD p 303.
Dr David Millons, surgeon, who provided a forensic report to the third respondent dated 28 June 2021 is of the opinion that that the only realistic way to consider the applicant’s various physical problems is as a disease of gradual onset.
All three doctors who have provided forensic reports in this matter have concluded that the applicant suffers from a disease which affects the body parts/body systems to which the applicant alleges he has sustained injury.
The second and third respondents do not dispute that the applicant suffers from a disease.
I accept the medical opinions of Dr Dixon, Dr Millons and Dr Diebold as to the existence of disease(s) that afflicts all the body parts/systems to which the applicant alleges he has sustained injury.
The next issue to be considered is whether the disease was contracted, aggravated, accelerated, exacerbated or deteriorated in the course of employment.
In Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 (Semlitch) Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.
Burke CCJ, applying Semlitch in Cant v Catholic Schools Office [2000] NSWCC 37; (2000) 20 NSWCCR 88 (Cant) said at [17]:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
It is the applicant’s evidence that his work as a shearer was heavy, physical, “back breaking” work which put a lot of pressure on his body. That occasionally a sheep would fight which would put a lot of pressure on his neck, back, legs and arms as he had to control the sheep whilst in difficult positions.[26]
[26] ARD pp 6 and 14.
It is the applicant’s evidence that when working as a shearer he would start work at 7.15am when he would set up his gear.[27] He would commence shearing at 7.30am. The shearing duties would require him to walk into a catching pen, grab a sheep, throw the sheep onto its hind quarters and then drag the sheep out backwards, through the pen doors and to the shearing platform. Some sheds had steps between the pen and the shearing platform which made the job a lot harder on his back. On dragging the sheep to the shearing platform, he would then place the sheep into position which required the use of his knees to manoeuvre the sheep into the correct position. The applicant would then hold the sheep in position with his knees whilst shearing. It is the applicant’s evidence that there are a number of shearing positions all of which required him to be bent forward from the hips.[28]
[27] ARD p 6.
[28] ARD p 7.
It is the applicant’s evidence that 10% to 20% of his time he would perform crutching work. It is the applicant’s evidence that crutching work was generally heavier than shearing work as he could not use a shearing harness because he would generally crutch about 400 sheep per day which made getting in and out of the shearing harness almost impossible.[29]
[29] ARD p 16.
It is the applicant’s evidence that his duties wool classing involved the skirting and classing of the fleeces. The duties also required him to pick up the fleece from the shearing table and throw it into a bin. Once the bin was full, he would take the wool over to the press and put it in the press. It is the applicant’s evidence that this is physical work.[30]
[30] ARD p 55.
It is the applicant’s evidence that his duties as a shedhand involved assisting the wool classer in skirting the fleece and throwing the scraps into a wool bin.[31]
[31] ARD p 73.
It is the applicant’s evidence that he would skirt fleeces and would pick up the odd fleece and throw it on to the table. This required him to bend down, pick up the fleece, take it over to the table and throw it up in the air so that it landed flat on the table. After the fleece had been skirted, the pieces of bad wool, which had been skirted off the fleece, were thrown into a separate bin. Quite often the applicant would have to push the wool down so that more wool could be put into the bin. It is the applicant’s evidence that at the end of the day his back and legs would be sore.[32]
[32] ARD p 74.
In the opinion of Dr Dixon the duties of a shearer are notoriously heavy placing stress and strain on the neck, shoulders, arms, elbows, back, both knees and both ankles and led to an acceleration of symptoms and degenerative changes in the applicant’s neck, back, shoulders, elbows, knees and ankles and that the conditions of the applicant’s neck, shoulders, elbows, back, knees, ankles and the bilateral carpal tunnel syndrome can be categorised as disease conditions, being underlying pre-morbid pathological conditions as a result of the physically demanding work of being shearer.[33] Dr Dixon in reaching his opinion took a detailed description of the applicant’s duties as a shearer as well as his duties crutching.
[33] ARD p 82.
In the opinion of Dr Dixon, the applicant’s work as a shedhand is also a substantial contributing factor to the aggravation, acceleration and deterioration of the applicant’s pain in his back, both knees, both ankles, neck, both shoulders, both elbows and both wrists.[34] In reaching his opinion Dr Dixon noted the applicant’s statement evidence as to the applicant’s duties when wool classing and working as a roustabout.[35]
[34] ARD p 94.
[35] ARD p 94.
In Dr Dixon’s opinion roustabout/shedhand work is notoriously heavy and repetitive and can cause stresses and strains on the back, knees, ankles, neck, shoulders, elbows and wrists that can lend to the acceleration of symptoms in the applicant’s back, knees, ankles, neck, shoulders, elbows and wrists.[36]
[36] ARD p 95.
Dr Diebold observed that:
(a)    the applicant’s duties as a shearer involved constant travel, the applicant having worked on many farms for different farmers and contractors. At each shed, the applicant would shear for days to weeks at a time, depending on the size of the property.
(b)    Shearing involved the applicant bending over to grab onto a sheep, pulling it into his legs and holding it in place on its rump, whilst shearing with his trunk flexed using both hands. Significant force was required to restrain and move about the sheep whilst shearing.
(c)    The applicant’s duties as a roustabout/shed hand involved pulling out the soiled parts of the fleece, contaminated with dirt, burrs and other organic matter. Rolling the fleece and throwing it across the wool table to the wool classer. Sometimes there was a need to bend and pick up the fleece from the ground, and to collect wool and rubbish scraps from the floor by hand and place them in a bin. Sometimes he helped pen the sheep.[37]
[37] ARD p 299.
Dr Diebold observed that research conducted on the knee joint had explored knee arthritis rates in workers in different occupations. The research showed a moderate level of evidence of a mild to moderate increase in arthritis rates in people working in heavy physical occupations for many years (probably a decade or more). In the opinion of Dr Diebold, this can be extrapolated to other joints. In the shoulders, rotator cuff degeneration and impingement syndrome, is associated with occupations involving frequent forceful use of the arms above 70 degrees, which is the positioning of the arms while leaning forward and shearing.[38]
[38] ARD p 304.
Dr Diebold is of the opinion that fifty years of markedly physical and forceful work as a shearer had exerted prolonged mechanical stresses on all joints of the applicant’s body, including upper limbs, lower limbs, cervical and lumbar spines. This has acted upon a strong constitutional predilection for osteoarthritis.[39]
[39] ARD p 304.
Dr Diebold did not consider it justifiable to consider the short period that the applicant worked as a shedhand as a substantial contributing factor to the degenerative conditions of his musculoskeletal system. Not only were the duties less physical, and performed for a much shorter period of time, but were performed when he was older and following surgeries, and his exertions and force of work would undoubtedly have been far less.[40]
[40] ARD p 304.
Dr Diebold considered the duties as a shedhand to be of a different order of magnitude and physical stress than those of a shearer. He also considered that the period of time that the applicant worked as a shedhand was casual work for a relatively short period, and that the applicant would not have worked as hard as he previously did in his younger days and before his surgeries. Dr Diebold considered the applicant’s career as a shearer to be a substantial contributing factor, but not his work as a shedhand intermittently between March 2018 and his retirement in April 2019.[41]
[41] ARD p 308.
Dr Diebold considers the applicant’s shearing work to be the main contributing factor to an exacerbation of underlying constitutional degeneration. In the opinion of Dr Diebold, the acceleration of osteoarthritis in the lower limb joints and the back is ongoing and has caused a more rapid progression of the disease than would have otherwise occurred.[42]
[42] ARD p 309.
In the opinion of Dr Millons the applicant’s work as a shearer was arduous and punishing on the body, requiring repetitive bending, pulling of the sheep to be shorn and pushing the sheep away. In the opinion of Dr Millons the applicant’s work as a shearer placed strain on his shoulders, back and lower limbs.[43]
[43] Third respondent Reply p 15.
Dr Millons records a detail history in respect to the applicants back, bilateral knee, bilateral ankle, neck, bilateral shoulder, bilateral elbow, bilateral wrist and bilateral hand conditions and injuries.
In the opinion of Dr Millons it would appear that the applicant has suffered aggravation of pre-existing degenerate changes as a result of the nature and conditions of his work as a shearer for over 50 years. In the opinion of Dr Millons the last period of intermittent work as a shedhand to April 2019 does not appear to have been particularly contributory any more than the normal activities of daily living would have been.
I accept the opinions of Dr Millons, Dr Diebold and Dr Dixon that that the applicant suffered aggravation, acceleration, exacerbation and/or deterioration of a disease(s) in the course of his employment as a shearer. I do not accept the opinion of Dr Dixon that the applicant suffered aggravation, acceleration, exacerbation and/or deterioration of a disease(s) in the course of his employment as a shedhand/roustabout.
The applicant has given very detailed evidence as to the nature of his duties as a shearer, duties which he performed for some 50 years up to 13 December 2017. It is the applicant’s evidence that his duties as a shearer were very heavy and physical in nature, “back breaking”. I agree with Dr Diebold’s opinion that the applicant’s duties as a shedhand were of a different magnitude involving the skirting of fleeces, the throwing of fleeces onto a table, some sweeping and picking up of wool scraps, some penning of sheep, the emptying of bins and the taking of wool to the wool press.
Whilst there was a physical nature to his duties as a shedhand the physical nature was of a far lesser magnitude to his duties as a shearer. It is indicative of the lighter nature of the shedhand duties that the applicant performed those shedhand duties once he was no longer physically capable of working as a shearer. The shedhand duties were also performed shortly after the applicant underwent surgery on his lumbar spine being a double laminectomy performed at L3/4 and L4/5 on 14 December 2017 and again shortly after undergoing left knee replacement surgery on 29 May 2018.
Whilst the applicant did shear approximately 10 sheep between August 2018 and April 2019 whilst teaching a young shearer, I accept the submission made by Mr Grimes that the shearing of these sheep whilst teaching was not the same as the duties which the applicant performed whilst working as a shearer in that he was not repetitively shearing large numbers of sheep for days and weeks on end.
Whilst it is the applicant’s evidence that he would be sore after performing a day’s duties as a shedhand there is no evidence that the soreness was anything other than temporary in nature with the applicant already suffering from the injuries caused by his years of work as a shearer having recently undergone a left total knee replacement and surgery to his lumbar spine.
In respect to whether the applicant’s employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. I find that the applicant’s employment as a shearer is the main contributing factor.
Deputy President Snell in AV v AW [2020] NSWWCCPD 9 (AV) considered the test of main contributing factor at [77]-[78] stating:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”

Arbitrator Harris considered the question of “main contributing factor” in Ariton Mitic v Rail Corporation of NSW (Matter No 008497/2013 8 April 2014) (Mitic) and said:
“The opening words of the amended s. 4(b)(ii) relate to the aggravation, acceleration, exacerbation or deterioration ‘in the course of employment of any disease’. In my view, those opening words therefore direct attention to the work-related component of the ‘aggravation, acceleration, exacerbation or deterioration’. The following words of clause (ii) then state ‘but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease’. The concluding words of clause (ii) requires an examination of whether the employment was the main contributing factor ‘to the aggravation, acceleration, exacerbation or deterioration of that disease’ and not to the overall pathology or the overall disease process…
In my view, the amendment to s 4(b)(ii) does not require the applicant to establish that the employment must be the main contributing factor to the overall disease process or pathology within his left knee but simply that the employment must be the main contributing factor to the injury, that is, the aggravation, acceleration, exacerbation or deterioration of such disease.”

Mr Grimes submitted on behalf of the second and third respondents that the evidence does not support that the applicant’s duties as a shedhand were/are the main contributing factor to a disease injury. That the evidence supports that the applicant’s work as a shearer was the main contributing factor to the disease injury and that therefore the first respondent should be liable for any compensation payable. Mr Dodd submitted on behalf of the applicant that it appears that the main contributing factor to the applicant’s injuries is the work as a shearer. I accept the submissions of Mr Grimes and Mr Dodd.

In respect to all the body systems to which the applicant alleges that he sustained injury Dr Dixon, Dr Diebold and Dr Millons universally agree that the applicant suffers from disease conditions.
Dr Dixon, Dr Diebold and Dr Millons also universally agree that the applicant’s duties as a shearer were repetitive and heavy in nature placing stress and strain on the applicant’s body. Whilst Dr Dixon, applying the incorrect test, is of the opinion that the applicant’s duties as a shearer was a substantial contributing factor to the applicant’s disease injury, Dr Diebold applying the correct test is of the opinion that the applicant’s duties were the main contributing factor to the disease injury.
Both Dr Diebold and Dr Millons are of the opinion that the applicant’s work as a shedhand was not the main contributing factor to the applicant’s disease injury.
Dr Diebold did not consider it justifiable to consider the short period that the applicant worked as a shedhand as a substantial contributing factor to the acceleration of the underlying degenerative process. In coming to his opinion Dr Diebold observed that the applicant’s duties as a shedhand were less physical than his duties as a shearer, were performed for a much shorter period of time, and were performed at a time when the applicant’s physical exertions would have been less, the applicant being older and following surgeries.
As Arbitrator Harris observed in Mitic all that is required is that the employment must be the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. The applicant is not required to prove his employment was/is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the overall disease process or pathology.
Dr Diebold, in particular, takes a detailed history of the applicant’s duties as a shearer and the applicant’s physical conditions and injuries received in coming to his opinion that the diagnosis in all areas is one of degenerative disease.
The opinion of Dr Diebold is well reasoned with the doctor taking a detailed history of the applicant’s duties as a shearer as well as of his physical conditions and injuries. Dr Diebold sets out in detail his reasoning as to why the applicant’s work duties as a shearer are the main contributing factor. I accept the opinion of Dr Diebold.

Liability

Section 16(1) of the 1987 Act states:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease-
(a)the injury shall, for the purposes of the Act, be deemed to have happened –
(i)at the time of the worker’s death or incapacity, or
(ii)if death or incapacity has not resulted from the injury-at the time the worker makes a claim for compensation with respect to the injury, and
(b)compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
As previously discussed, the applicant last worked as a shearer whilst employed by the first respondent on or about 13 December 2017. I therefore find in accordance with s 16(1)(b) of the 1987 Act that the first respondent being the employer who last employed the applicant as a shearer to be liable for any compensation payable.

Compensation

The applicant claims weekly compensation, permanent impairment compensation and medical and treatment expenses.
The applicant claims weekly compensation:
(a) from 15 December 2017 to 15 March 2018 pursuant to s 36 of the 1987 Act;
(b) from 16 March 2018 to 1 April 2018 pursuant to s 37 of the 1987 Act;
(c) from 19 May 2018 to 20 August 2018 pursuant to s 36 of the 1987 Act;
(d) from 17 April 2019 to 17 July 2019 pursuant to s 36 of the 1987 Act;
(e) from 18 July 2019 to 13 October 2021 pursuant to s 37 of the 1987 Act, and
(f) from 14 October 2021 to date and continuing pursuant to s 38 of the 1987 Act.
The second and third respondent concede that the applicant was totally incapacitated for work during the periods claimed.
It is the applicant evidence that he ceased work on 14 April 2017. The applicant’s evidence is inconsistent as to when he returned to work stating that he was off work until February 2018 when he returned to work doing a couple of days of wool classing for the first respondent,[44] that he was off work until 16 March 2018 when he returned to work as a shedhand for the third respondent,[45] that he was off work up until April 2018[46] when he commenced work with the third respondent in April 2018 where he worked as a shedhand mainly performing wool rolling and a little bit of roustabout work.[47]
[44] ARD p 55.
[45] ARD p 73.
[46] ARD p 56.
[47] ARD p 57.
There were no submissions from the second and third respondent disputing the periods for which weekly benefits compensation is claimed. A review of the applicant’s bank statements did not provide any evidence of the applicant being in paid employment prior to 1 April 2018. In making this comment I acknowledge that the bank statements are limited in their utility as the account is a joint account and the source of deposits is not always clearly ascertainable. Doing the best I can with the evidence which is available, I accept that the applicant was off work and totally incapacitated for employment from 15 December 2017 to 1 April 2018 having undergone lumbar spine surgery in the form of a two level laminectomy on 14 December 2017.
Whilst there are no certificates of capacity for the period 15 December 2017 to 1 April 2018, I note that the applicant has worked performing manual labour as a shearer and shedhand all his working life having left school in second form at high school. The applicant would therefore appear to have limited transferrable skills for alternate sedentary employment. Also the nature of the back surgery which the applicant underwent was significant. Dr John Fuller, neurosurgeon, who performed the lumbar spine surgery reviewed the applicant on 25 January 2018 reporting to Dr David Harrison on 29 January 2018 that the applicant’s lower back was still “a little uncomfortable” although improving with time.[48] During the period Dr Tiffany Marum referred the applicant to Dr Andrew Leicester, orthopaedic surgeon, on 24 March 2018 for severe left knee pain.[49] On 19 April 2018 Dr Leicester reported to Dr Marum in respect to the applicant’s left knee that the pain was severe and that the applicant could only walk about 100 metres.[50] The applicant would have a left total knee replacement performed on 29 May 2018. The applicant’s capacity for paid employment was therefore not only impacted on by the lumbar spine injury and the surgery performed to the lumbar spine but also the significant restrictions placed on the applicant by the left knee injury.
[48] ARD p 169.
[49] ARD p 140.
[50] ARD p 170.
The applicant claims weekly compensation for the period 19 May 2018 to 20 August 2018. The applicant’s bank statements did not provide any evidence of the applicant being employed during the period in question. Once again there are no certificates of capacity for the period in question. On 29 May 2018 the applicant underwent total left knee replacement surgery. On 12 June 2018 the applicant attended on Dr Harrison for his left knee who noted that the applicant needed Panadeine Forte for pain.[51] On 9 July 2018 Dr Vera Kinzel, orthopaedic surgeon, reported to Dr Marum that the applicant was doing well following the left knee replacement surgery but had some mild pain.[52] On 13 August 2018 Dr Leicester reported to Dr Marum that the applicant was doing well following the knee replacement and that there would be some soreness and swelling for three to six months and that full recovery would take 12 months.[53] Given the nature of the surgery performed, the continuing left knee symptoms at the time he was reviewed by Dr Leicester on or about 13 August 2018, the applicant’s pain and inability to walk more than 100 metres prior to the surgery being performed, the physical nature of the work duties which the applicant had performed for the entirety of his working life and his apparent lack of transferable skills I am of the view and find that the applicant was totally incapacitated for work from 19 May 2018 to 20 August 2018.
[51] ARD p 151.
[52] ARD p 178.
[53] ARD p 171.
The applicant also claims weekly compensation from 17 April 2019 and continuing. Dr Dixon in his report dated 18 June 2020 reported that in his opinion the applicant is unfit due to his injuries to work as a shedhand or shearer and that he was unlikely to obtain any further remunerative occupation in the foreseeable future.[54] Dr Diebold in his report dated 28 December 2022 reported that in his opinion the applicant is totally incapacitated for work due to diffuse degenerative conditions throughout his musculoskeletal system and considered the applicant to be unfit for any duties to which he is suited by education, training and experience.[55]
[54] ARD pp 87-88.
[55] ARD p 310.
Dr Millons in his report dated 28 June 2021 records that the applicant at the time of examination had some continual ongoing aching in his lower back which radiated into the buttocks but not into either lower limb. He was woken by pain at night. He could sit for perhaps half an hour, then has to change his position. Standing in one spot for a short period of time was aggravating. He got some relief from lying down which he tended to do most days. Bending was aggravating, particularly leaning at a sink to wash or wash up. The applicant avoided lifting. Jarring, coughing and sneezing all aggravated his back pain. He needed some help to get his shoes and socks on in the morning. His wife attended to his toenails. He did a little mowing but, generally, one of his daughters did that. He would only drive locally.[56] In the opinion of Dr Millons the applicant is unfit for work in any capacity.[57]
[56] Third respondent Reply pp 16-17.
[57] Third respondent Reply p 27.
The medical opinion of Dr Millons, Dr Dixon and Dr Diebold support that the applicant has been totally incapacitated for work due to his injuries since 17 April 2019. I accept the opinions of Dr Millons, Dr Dixon and Dr Diebold and find that due to his work injuries the applicant has been totally incapacitated for work since 17 April 2019.
The parties have not agreed the PIAWE. Mr Grimes submitted on behalf of the second and third respondent that the applicant has a PIAWE of $797.09 on the basis that a review of the applicant’s bank records for the 12 months to 14 December 2017 revealed total wage income of $41,474.25. My own review of the applicant’s bank statements elicited a similar result. However, as it is the applicant’s evidence that he worked for wages I assume that the monies deposited into the bank account are the applicant’s wage income after income tax has been deducted. The applicant’s tax returns for the financial years ending 30 June 2017 and 30 June 2018 also confirm that income tax was deducted. Applying the applicable income tax rates it would appear that the applicant had a gross weekly wage income of approximately $890 gross per week in the 12 months prior to 14 December 2017. I therefore adopt the amount of $890 as the PIAWE.
Applying s 36 of the 1987 Act the applicant is entitled to weekly compensation at 95% of $890 (PIAWE) for the first 13 weeks from 15 December 2017. Applying s 37 of the 1987 Act the applicant is entitled to 80% of $890 (PIAWE) from 16 March 2018 to 1 April 2018.
I therefore award the applicant pursuant to s 36 of the 1987 Act $845.50 per week from 15 December 2017 to 15 March 2018 and from 16 March 2018 to 1 April 2018 pursuant to s 37 of the 1987 Act $712 per week.

From 19 May 2018 to 20 August 2018 pursuant to s 37 of the 1987 Act the applicant is entitled to $722.40 per week being 80% of $903 (PIAWE as indexed and rounded pursuant to ss 82A and 82D of the 1987 Act). I therefore award the applicant pursuant to s 37 of the 1987 Act $722.40 per week from 19 May 2018 to 20 August 2018.

The applicant also claims weekly benefits compensation from 17 April 2019 ongoing.
Section 52 of the 1987 Act states
“(1)    In this section—
retiring age, in relation to a person, means the age at which the person would, subject to satisfying any other qualifying requirements, be eligible to receive an age pension under the Social Security Act 1991 of the Commonwealth.
(2)     If a person—
(a)receives an injury before reaching the retiring age—a weekly payment of compensation is not to be made in respect of any resulting period of incapacity for work occurring after the first anniversary of the date on which that person reaches the retiring age, or
(b)receives an injury on or after reaching the retiring age—a weekly payment of compensation shall not be made in respect of any resulting period of incapacity for work occurring more than 12 months after the first occasion of incapacity for work resulting from the injury.
(3)     This section has effect notwithstanding anything to the contrary in this Division.
(4)     This section does not apply to injuries received before 30 June 1985.”
The applicant at the time of sustaining the injury on 14 December 2017 was 64 years of age and had not reached his retiring age of 65 years and 6 months for the purposes of s 52 of the 1987 Act. The applicant reached his retiring age on 2 December 2018 and is therefore not entitled to weekly compensation after 2 December 2019.
From 17 April 2019 to 30 September 2019 pursuant to s 37 of the 1987 Act the applicant is entitled to $735.20 per week being 80% of $919 (PIAWE as indexed and rounded pursuant to ss 82A and 82D of the 1987 Act). From 1 October 2019 to 2 December 2019 pursuant to s 37 of the 1987 Act the applicant is entitled to $740 per week being 80% of $925 (PIAWE as indexed and rounded pursuant to ss 82A and 82D of the 1987 Act). I therefore award the applicant pursuant to s 37 of the 1987 Act $735.20 per week from 17 April 2019 to 30 September 2019 and $740 per week from 1 October 2019 to 2 December 2019.
In respect to the claim for impairment compensation pursuant to s 66 of the 1987 Act the relevant date of injury is 14 December 2017. The applicant having last worked as a shearer on 13 December 2017 with 14 December 2017 being the first date of incapacity.
Counsel for the second and third respondents conceded that once the issue of liability had been determined all body systems claimed could be referred to a Medical Assessor for assessment of impairment. As I have previously found that the applicant sustained injury to all the relevant body systems, I will remit the applicant to the President for referral to a Medical Assessor.
The applicant claims permanent impairment compensation pursuant to s 66 of the 1987 Act for impairment of the lumbar spine, cervical spine, right lower extremity (knee and ankle), left lower extremity (ankle), left upper extremity (shoulder, elbow and wrist) and right upper extremity (shoulder, elbow and wrist). The applicant’s claim was based on an assessment of impairment provided by Dr Dixon. Unfortunately, Dr Dixon has become confused when providing the assessment of the left knee, incorrectly deducting 20% WPI on the basis of a previous payment of permanent impairment compensation to find that there had been no additional loss. That previous payment in fact related to the right knee. As there is no dispute in respect to injury to either knee I will refer both knees to the MA for impairment assessment however I will grant the parties liberty to apply in respect to the referral of the knees.
As I have found that the applicant sustained injury to his back, neck, both knees, both ankles, both shoulders, both elbows and both wrists there will also be a general order for the payment of the applicant’s medical and treatment expenses pursuant to s 60 of the 1987 Act.

[2024] NSWPIC 36

30 January 2024