Moslemi v State of New South Wales (Northern Sydney Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Moslemi v State of New South Wales (Northern Sydney Local Health District) & Ors [2023] NSWPIC 181
APPLICANT:	Mina Moslemi
FIRST RESPONDENT:	State of New South Wales (Western Sydney Local Health District)
SECOND RESPONDENT:	Nepean Private Hospital (Healthscope Operations Pty Ltd)
THIRD RESPONDENT:	State of New South Wales (Northern Sydney Local Health District)
senior Member:	Kerry Haddock
DATE OF DECISION:	24 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation in respect of injury to the cervical spine, right upper extremity and left upper extremity; accepted injury to right shoulder in employ of first respondent; disputed claim for injury to cervical spine and consequential condition of left shoulder; claim for disease injury to cervical spine, right upper extremity and left upper extremity; second and third respondents disputed that notice of injury and claim for compensation had been made in time; injury; substantial contributing factor; main contributing factor; last relevant employment; consideration of Taylor v J & D Stephens Pty Ltd, AV v AW; Westpac Banking Corporation v Hungerford, SAS Trustee Corporation v O’Keefe, Gow v Patrick Stevedores No 2 Pty Limited and Shoalhaven City Council v Schutz; Held –the matter is remitted to the President of the Personal Injury Commission for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment.
determinations made:	1. 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: 1 November 2013 (b) Body systems/parts: (i) Cervical spine (ii) Right upper extremity (right shoulder) (iii) Left upper extremity (left shoulder) (c) Method of assessment – whole person impairment. 2. 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: 13 May 2022 (deemed) (b) Body systems/parts: (i) Cervical spine (ii) Right upper extremity (right shoulder) (iii) Left upper extremity (left shoulder) (c) Method of assessment – whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: (a) Application to Resolve a Dispute and attached documents; (b) First respondent’s Reply and attached documents; (c) Third respondent’s Reply and attached documents, and (d) Application to Admit Late Documents dated 15 December 2022 and attached documents (Reply) filed by the second respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mina Moslemi (Ms Moslemi) was employed by each of the respondents as a midwife.
Ms Moslemi sustained an injury to her right shoulder in the employ of the first respondent, State of New South Wales (Western Sydney Local Health District) (Auburn Hospital – Auburn). She also claims to have sustained an injury to her neck and to have developed a consequential condition of her left shoulder.
The applicant also claims to have aggravated the condition of her right shoulder, neck, and left shoulder in the employ of the second respondent, Nepean Private Hospital (Healthscope Operations Pty Ltd) (Nepean), and the third respondent, State of New South Wales (Northern Sydney Local Health District) (Royal North Shore Hospital – RNS).
On 30 December 2020, the third respondent’s insurer, QBE Insurance (Australia) Ltd (QBE), issued the applicant with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
QBE recorded the date of injury as 18 January 2016. The injury stated to be to the cervical spine and upper extremities.
QBE disputed that the applicant had sustained injury; that employment was a substantial contributing factor to injury; that employment was the main contributing factor to injury; that she had given notice of injury or made a claim within the prescribed time; and that she was entitled to weekly benefits, medical expenses, or permanent impairment compensation.
On 4 March 2021, the second respondent’s insurer, GIO, wrote to the applicant about her injury on 1 April 2016. It advised it had applied a reasonable excuse to delay weekly payments but could “immediately help” her with treatment expenses of up to $3,000.
The injury was described as “manual triage required – physical injury”. The reasons for not commencing payment of weekly benefits included that the information GIO had received indicated the injury was not work related, and the information relied on was “Insert detail”; and GIO had received information that indicated the injury was not notified within two months. Once again, the information relied on was “insert detail”.
On 21 September 2021, GIO issued the applicant with a notice pursuant to s 78 of the 1998 Act.
GIO disputed the applicant’s claim for injury on 1 April 2016 to her right shoulder joint, neck, and left shoulder joint.
GIO disputed that the applicant had sustained injury; that employment was a substantial contributing factor to injury; that employment was the main contributing factor to her “disease injury”, pursuant to ss 4(b)(i) and 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act); that she had given notice of the injury or made a claim within the prescribed time; and that she was entitled to payment of either weekly benefits or medical expenses.
By letters dated 13 May 2022, the applicant made on each respondent a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act.
The date of injury was claimed to be “13 May 2022 (deemed – date s 66 claim made). In the alternative, we allege a deemed date of employment [sic] being the relevant period of employment leading up to her first day off work in 2013 while employed with Auburn Hospital, which was 1 November 2013.”
The applicant claimed, in the alternative, the sum of $83,130 in respect of 29% whole person impairment (WPI) as a result of injury to her cervical spine and upper extremities, relying on the report of Associate Professor Michael Ryan, dated 3 April 2019; or $79,890 in respect of 28% WPI as a result of injury to her cervical spine and upper extremities, relying on the report of Dr J. Brian Stephenson dated 19 August 2019.
On 31 May 2022, QBE issued the applicant with a notice pursuant to s 78 of the 1998 Act.
QBE recorded the date of injury as 18 January 2016. It disputed that the applicant had sustained injury to her right shoulder, left shoulder, or cervical spine; that employment was a substantial contributing factor to injury; that employment was the main contributing factor to the contraction of injury; that the third respondent was the employer that last employed her in employment to the nature of which the disease injury was due; that the third respondent was the employer that last employed her in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury; that she was entitled to compensation because she failed to give notice and make a claim for compensation within the time prescribed; and that she was entitled to weekly benefits, medical expenses, or permanent impairment benefits.
On 22 July 2022, GIO issued the applicant with a notice pursuant to s 78 of the 1998 Act.
GIO recorded the date of injury as 1 April 2016 (or 13 May 2022 or 1 November 2013). It disputed that the applicant had sustained injury to her cervical spine or left and right upper extremities (shoulders); that employment was a substantial contributing factor to injury; that employment was the main contributing factor to the contraction, aggravation, acceleration, exacerbation or deterioration of the disease injury; that the second respondent was the employer that last employed her in employment that was a substantial contributing factor to the aggravation, exacerbation, acceleration or deterioration of the disease injury; that she was entitled to compensation because she failed to give notice and make a claim within the time prescribed; that her claimed consequential condition resulted from her injury in May 2017; that she was entitled to permanent impairment compensation for her injury in May 2017; and that the relevant deemed date of injury was 13 May 2022.
On 1 November 2022, Employers Mutual Limited (EML), the first respondent’s insurer, issued the applicant with a notice pursuant to s 78 of the 1998 Act.
EML recorded the date of injury as 29 October 2013 (or 13 May 2022 or 1 November 2019 as claimed in the letter of claim dated 13 May 2022). It disputed that the applicant had sustained injury to her left shoulder and cervical spine on 29 October 2013, or as the result of the nature and conditions of her employment; that her employment was a substantial contributing factor to injury to her left shoulder and cervical spine on 29 October 2013 or as a result of the nature and conditions of her employment; that the first respondent was the employer that last employed her in employment to the nature of which the disease injury was due; that the first respondent was the last employer that employed her in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease injury; and that the accepted injury to her right shoulder had resulted in more than 10% permanent impairment.
The applicant lodged an Application to Resolve a Dispute (the Application) on 22 November 2022. I believe it is necessary that I set out the claim as pleaded in the Application.
The applicant claimed that the date of injury was from 1 January 2007 to 9 April 2021.
The applicant claimed that, in the three-month period leading up to on or about 1 November 2013, she was required in the course of her duties to participate in a number of sequential births. She was required to assist new mothers with breastfeeding, which involved holding babies to the mother’s breast for extended periods, which required her to maintain fixed, awkward postures. She gradually developed neck and right shoulder pain that deteriorated over a period of time to the point where she could no longer work and needed to have time off. Her first date of incapacity with Auburn was 1 November 2013.
The applicant claimed that the posture she was required to adopt saw her develop problems with her neck and right shoulder which manifested itself [sic] in centralised discomfort and pain in and about the neck and shoulder region, which she reported to her employer at the time.
Following from the injury to her neck and right shoulder, the applicant experienced continuing issues associated with both regions of her body but was able to return to her normal work. She was forced to adjust the way in which she performed the work, placing increased reliance on her left arm in performing the heavier work of a midwife, and over a period of time began to develop problems associated with her left shoulder.
The applicant continued employment with Auburn to mid-2015, and thereafter obtained full-time work as a midwife at RNS, where she worked to December 2016, and then as a midwife at Nepean from April 2016 to May 2017.
The applicant claimed that the work she performed since leaving Auburn was the full range of duties required of a midwife. The work she was required to perform involved lifting, carrying of awkward and heavy items, and the maintenance of awkward postures for prolonged periods.
The applicant claimed that she never recovered from the issues she developed while employed at Auburn and noticed that the work she was doing as a midwife with subsequent employers aggravated that earlier condition.
The applicant claimed the sum of $80,000 pursuant to s 66 of the 1987 Act, with respect to 29% WPI as a result of injury to her cervical spine; right upper extremity; and left upper extremity on 1 January 2007.
The third respondent lodged its Reply on 13 December 2022.
The first respondent lodged its Reply on 14 December 2022.
The second respondent lodged its Reply as an attachment to an Application to Admit Late Documents dated 15 December 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
First respondent:
(a)    whether the applicant has sustained injury (other than the conceded injury to her right shoulder);
(b)    whether employment was a substantial contributing factor to injury;
(c)    whether the applicant has sustained a consequential condition of her left shoulder, and
(d)    whether it was the last relevant employer.

34. Second respondent:

(a)     whether the applicant has sustained injury;
(b)     whether employment was the main contributing factor to injury;
(c)     whether the applicant gave notice of injury and made a claim for compensation within the prescribed time limits;
(d)    whether it was the last relevant employer, and
(e)    the applicant’s WPI.

Third respondent:
(a)    whether the applicant has sustained injury;
(b)    whether employment was a substantial contributing factor to injury;
(c)    whether employment was the main contributing factor to injury;
(d)    whether the applicant gave notice of injury and made a claim for compensation within the prescribed time limits;
(e)    whether it was the last relevant employer, and
(f)    WPI.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for preliminary conference before me on 11 January 2023. Mr Morgan of counsel, instructed by Mr Edward-Joy, appeared for the applicant, who was present. Mr McLean appeared for the first respondent; Ms Brown appeared for the second respondent; and Mr Galea appeared for the third respondent. Ms Read of QBE also attended.
Mr Morgan advised that the date of injury was either 1 November 2013, the date of first incapacity, or 13 May 2022, the date on which the claim for permanent impairment compensation was made. The applicant relied in the alternative on a frank injury or a “disease injury”. She claimed to have sustained injury to her neck and right shoulder, and a consequential condition of her left shoulder.
The matter was listed for hearing on 21 March 2023. Mr Morgan appeared for the applicant, instructed by Mr Edward-Joy; Mr Gaitanis of counsel, instructed by Mr McLean, appeared for the first respondent; Mr Baker of counsel, instructed by Ms Costello, appeared for the second respondent; and Mr Doak of counsel, instructed by Mr Galea, appeared for the third respondent. The applicant was present, accompanied by her daughter as support person. Ms Maiden of EML also attended.
Mr Morgan advised the date of injury alleged against the first respondent is either 1 November 2013, which is the date of first incapacity, or 19 June 2019, which is the date the claim was made. The date of injury alleged against the second and third respondents is 13 May 2022.
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.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    first respondent’s Reply and attached documents;
(c)    third respondent’s Reply and attached documents, and
(d)    Application to Admit Late documents dated 15 December 2022 and attached documents (Reply) filed by the second respondent.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

Evidence of the applicant, Mina Moslemi

The applicant’s first statement is dated 13 February 2020.
From 2007 to August 2015, she worked full time at Auburn in the post-natal ward, working roughly 38 hours per week with overtime.
From January 2016 to late 2017, she worked on a casual basis at RNS.
From April 2016 to May 2017, she worked concurrently part-time at Nepean.
She was responsible for examining, monitoring, and providing care to pregnant women; assisting women in labour; carrying out screening tests; undertaking antenatal care; and general duties incidental to nursing and post-natal care.
She was constantly required to perform activities such as making beds; physically assisting pregnant women; and carrying out all the duties of a post-natal ward nurse. As a result, she sustained injuries to her neck and both shoulders.
In or around late 2013, she experienced intense aching pains in her right shoulder and right arm. They coincided with Auburn being short-staffed over several months.
She was required to make beds; lift and manoeuvre heavy pregnant women; push patients around; provide medication; oversee discharges; provide education sessions; and reach for medical equipment on high shelves, under time pressures.
Her right shoulder pains were particularly debilitating one night after completing six deliveries. She couldn’t lift her arms above her shoulders. She consulted a general practitioner (GP) on 3 November 2013.
Over the next few years, she continued physically taxing duties. Her upper body felt increasingly sore, with straining and aching sensations focused in her right shoulder and neck. She particularly noticed them when performing duties such as holding babies to their mothers’ breasts. These sessions could go for up to an hour and be repeated several times a day.
As her right shoulder began to strain, she relied on her left shoulder more. As this was her non-dominant side, many of her manoeuvres were awkward. This resulted in injury to her left shoulder, which continued to develop as she continued working. By the end of 2016, she had severe pains in both shoulders, radiating into her arms, as well as her neck.
In April 2017, she resigned from Nepean as she was unable to work in the amount of pain she was in. Around this time, she began seeing Dr Ray Cook, neurosurgeon, at RNS.
She underwent foraminotomy on the left side at C5/6 on 14 August 2017. She observed no substantial change to her neck and shoulder pains.
Since then, she had continued to undergo pain management and general consultations. Her condition had not changed significantly, and she still frequently experienced pain in her shoulders and neck.
On 14 May 2021, the applicant made a supplementary statement, much of which repeats the contents of her first.
She was required to manoeuvre and lift heavy pregnant women. This involved pushing them in wheelchairs, transferring them to beds, and helping women who had collapsed sit up in bed. This placed extreme pressure on her arms and neck. She often had to lift women alone. She developed burning pain down her right arm, as she is right-handed.
She was required to teach first-time mothers about lactation, which required holding babies to their breasts for up to 30 minutes. The babies weighed between 3.5kg and 5.5kg, and she supported their heads as they fed. As a result, she developed severe aching pain in her right shoulder, but would not be able to stop until the baby finished feeding.
She was also required to make beds, bending her whole body, and reaching forward with both arms. She suffered intense aching pains after carrying out this duty multiple times a shift.
She needed to reach for papers on high shelves, which required stretching her arms above shoulder height. This was extremely difficult after carrying out heavy manual duties all shift. She was required to use computers that were at the wrong height, resulting in them being awkward and uncomfortable to use. She had to crane her neck when entering data.

She had to carry out screening tests and take blood samples and temperatures from mothers and babies. The “newborn screening test” involved taking blood from the baby’s heel. This was uncomfortable for the baby, and she needed to crunch her whole body down while squeezing the baby’s heel. This aggravated her neck pain severely and she experienced headaches because of neck pain and tension radiating into her head.
She had to weigh babies three to five days after they were born. This required her to carry them, sometimes with one hand, from their cots to the scale, placing additional pressure on her fatigued arms and shoulders.
She was required to work long hours. Her night shifts were 10 hours, and her day shifts were 8.5 hours. She was constantly running between patients. By the end of each shift, she felt so severely tired and weak that she struggled to lift either arm above her head.
Auburn was severely understaffed for several months in 2013. While she was not supposed to have more than four mothers at a time, she was often responsible for six at once, in addition to their babies. She was afforded little time to think about her neck pain, shoulder pain, and headaches. She relied on Panadol and anti-inflammatories to get through her shift.
She was required to carry out her duties at a fast, efficient pace, with constant time pressure. She immediately moved from one patient to the next. As a result, she was given extremely limited time to rest her right shoulder.
Since leaving Auburn, her employment history was:
(a)    September 2015 to December 2015: full time midwife at Royal Women’s Hospital.
(b)    Late 2015 – a small number of shifts as midwife at Prince of Wales Private Hospital. She did not work at these hospitals for long, as it was too far to commute.
(c)    January 2016 to December 2016 – casual midwife at RNS.
(d)    April 2016 to May 2017 – worked concurrently as a part-time midwife at Nepean.
In each of these roles, she was carrying out the full duties of a midwife, and in each she experienced exacerbation and aggravation to her symptoms. In particular, in late 2016, while working at RNS, holding up babies’ heads for feeding, she experienced incredibly severe pain in her left shoulder, as she was relying heavily on her left side, due to ongoing pain on her right. From this time onwards, she noticed a significant deterioration in the condition of her left shoulder.
While working at RNS, due to understaffing, she was sometimes required to care for up to 10 mothers and babies at a time. She was often required to carry out tasks that were not appropriate for one person.
There was an occasion when a mother fainted in the bathroom. She had to move her to her bed. She pressed the emergency buzzer, but no one came, as all staff was too busy. Despite her severe aching pain in both her arms and shoulders, she had to support the woman with her left arm.
While she felt compelled to complain or speak up about understaffing, she was anxious that she would lose her shifts if she made a fuss and did not want to risk losing her livelihood.
In April 2017, she was in such unbearable pain “and increasing the sign and symptoms of numbness and pins and needling in my left-hand fingers”, she resigned from Nepean as she could no longer carry out her duties.
On 14 October 2021, the applicant made a statement in response to the evidence of Ms Annette Nugent, Nurse Unit Manager (NUM), Midwifery Services, Nepean.
She attended Nepean once through an agency before applying for employment. The managers and staff encouraged her to apply for a full-time position. She had no restriction on her registration at the time of her employment at Nepean.
Only two staff worked in each “given” (I assume “evening”) shift, and one in the morning. The number of midwives was three, including Annette. She consistently remained in her office and never attended to any work in the post-natal or birth unit.
During some shifts, she was unable to take a meal break. In the night shifts, only one staff was assigned to work in the “building” (I assume “birthing”) unit and post-natal staff had to provide backup. In several night shifts, she was allocated as backup and technically had to cover two wards with over six to eight patients in the post-natal ward.
She never complained. Annette was always happy with her service and caregiving. She never had any failure in work, medication administration, or patient or doctor complaints.
At the end of 2016, she found out about two tumours in her uterus that caused her fatal [sic] bleeding.
On 10 November 2016, she was informed that her sister had had a car accident and was in hospital in Iran. Her prognosis was very poor. Her “Gyn” (gynaecologist) scheduled the operation for 5 December, so she asked her manager for four weeks FACS (Family and Community Services) leave to visit her sister and attend her operation after.
Annette was very difficult and “made a meeting with me in attendance of birthing unit manager”, tried to convince her to cancel visiting her sister. She told her you DON’T UNDERSTAND that she had a commitment to working for the hospital and they had short staff. (Capitalisation in original). She was “down to tears” and said she had a sick sister. If they could not give her leave, she was happy to resign. The statement referred to the attachment of texts, which were not attached.
On 16 February 2017, while she was still recovering from the operation, Annette called her and said words to the effect “back to work and that you had enough rest”. She was not well enough, and asked to start two to three weeks later, especially as she had leave without pay (LWOP), not because she had used all her leave, but because she used it partly in late 2016 visiting her sister, “considering part-time posting will get half the leave of full-time workers”.
Annette insisted she restart working. Despite her weakness, she resumed work on 24 February 2017. Since late 2016, she had had no other job. The work was much heavier in summer 2017 for [sic] high admissions in NPH (assumed to mean Nepean Public Hospital). They had some patients transferred from Nepean Public, and she was sent twice to bring them with the bed. Pushing and navigating the bed with the patient “affected more” on her physical condition, on top of caring for mothers and babies and handling the heavy workload.
From early April 2017, headaches, neck pain, left-hand needling and numbness started. At the start it was only sometimes, but eventually it got worse.
In late April, she told a specialist she was accompanying in daily rounds, Dr Pardey, that she was experiencing numbness in her left tomb [sic, assumed to mean thumb] “and if there are any things that I must concern”. He said it was not in his expertise, but it did not look good, and she had better see her GP for a referral.
In early May 2017, she visited her GP, Dr Sanjeevani Nagulendran, and he informed her she had established spondylosis and referred her to Dr Cook.
She informed her manager verbally about her neck and left arm issues after it was diagnosed by her GP. Annette kept it quiet and did not report it to the authorities or related department systems. She stated she would accept her resignation without argument. “Why did I not take any action ‘til 2018?” She intended to return to work after the neck operation and recovery. She wasn’t aware of the depth of the issue, “which navigated me to permanent disability”.
Annette was aware she was working with agencies. The first time she worked in NPH, they employed her through the NNA agency. She had no restrictions on her registration and Annette had her renewed registration card details up to date.
In around mid-November (2016), her sister had a car accident and she requested LWOP, which Annette denied until she said she would resign, when she accepted her request, “and that was only once”.
Her sister’s accident and her hysterectomy were nothing to do with HCC (assumed to mean HCCC – Health Care Complaints Commission), and it was clear based on the evidence she gave Annette, and her obstetrician, Dr (Ishwari) Casikar, was working in the same hospital.
In mid-February 2017, after 1.5 months post-operation, Annette asked her to return to work. She was not ready, as she needed at least three months rest, but after Annette insisted that they were very short-staffed, she returned to work by the start of the next week.
It was a part-time position, and she was unable to accumulate much sick leave or annual leave, but she never applied for leave or sickness. Instead, she worked more than part-time because Annette was desperate and asked her to help cover the shifts.
The only meeting she had with Annette and the birth unit manager was to discuss her leave to visit her sister, and that was 14 days before her operation, which was scheduled on 6 December 2016.
After returning to work, she did not have any leave and was never asked to provide the renewal registration as it was due at the end of May (2017). In early May, she informed Annette she had a health issue that required assessment, radiology, and potentially an operation.
Annette was officially informed in a text message and accepted her resignation with no argument or any report to the related departments, including admin, hospital manager, health and safety office or the insurance department, even though she was aware the cause of her illness was related to the nature of the work.

Applicant’s resignation letter

On 12 May 2017, the applicant wrote to Ms Nugent as follows:
“Unfortunately due to physical damages to my spinal cord and an acquired neck arthritis, it has become difficult and painful for me to continue performing midwifery care. And so, I am writing to you to propose my recognition [sic] for the position of midwifery. I will stop work by 22nd of May 2017 as I need to take a break for at least a number of months and take a procedure due to the issue. I would like to mention that during the working at Nepean Private Hospital, I always enjoyed working with the friendly staff and appreciated team working that took place. I also appreciate the support always provided by managers and educators.”

AIMS Incident Detail Form

On 4 November 2013, the applicant reported an injury to the first respondent. The date of the injury was recorded as 29 October 2013.
The applicant described the injury as follows:
“On Tuesday night which I was working on night shift, I was caring for 6 women and 6 babies all of women where [sic] first time mom and required full assistance for attachment and breast feeding. To educate the mother I had to show them hoe [sic] to positioning and attachment. It was a consistent busy night and I spent almost of time [sic] with unsettle [sic] babies and teaching mothers how to manage the feeding. Around 0530 I felt numbness on my right hand and deep pain on my arm and right shoulder following spending a long time with the patient in room 3018. I tried pain relief and hot pack, but not much progress. I informed after hours staff manager, Sue Kelly, that she advised me to fill in the incident form and inform my manager. That time of morning I had urge to finish my writhing [sic] progress notes and medications, so had not enough time to fill in incident forms online. Although I was waiting for my manager to have a verbal report and getting some advise [sic] but I was exhausted and couldn't wait latter [sic] than 0715 hours. I had several pain relives [sic] and resting at home not even doing house working or cooking but still very painful and I am not able to lift pull or push items including babies.”
The applicant recorded contributing factors to the incident/injury as a heavy load of work in the last two weeks, and lack of “sinner” (I assume “senior”) midwives on each shift for that season.
The injury was described as a nerve or spinal cord injury; sprain/strain of joint or muscle. The parts of the body affected were the neck, shoulder, arm – general, with the right side of the body affected.
Ms Sandra de Rossi has recorded that on 4 November 2013 she spoke to the applicant, who advised she was still feeling pain and would see her doctor that day.

Injury notification form

The injury notification form was completed by Ms de Rossi. It is undated but stamped as having been received by EML on 11 November 2013.
The date of injury was recorded as 29 October 2013. The employer was notified on 5 November 2103.
The injury occurred when the applicant was assisting mothers with breast feeding. The details of the injury are “neck, shoulder and arm”, “muscle/tendon strain (non-traumatic)”.

Evidence of Annette Nugent

Ms Nugent’s statement is dated 28 September 2021.
The applicant commenced work in around April 2016. She was provided good references. She was not aware the applicant had secondary employment, or that she was subject to a disciplinary process with the HCCC.
She was aware the applicant lived with a couple of her children and had one sister overseas. She facilitated quick access to leave on a number of occasions, due to the applicant advising her sister had been in a car accident, then was advised the sister had died, and then that she had an operation. “The stories continued to change”. However, they always approved the leave.
“In retrospect”, it was apparent, after the conclusion of the HCCC investigation, that the constant need for leave was apparently to prove that the applicant was not “working” at that time, in line with the conditions put on her registration.
Throughout the applicant’s employment, she became unreliable, not turning up to work, and constantly asking for leave. She commenced telling untruths constantly and changing her stories. She took all her leave and was taking unpaid sick leave. Her leave was excessive.
She had multiple meetings with the applicant, and multiple discussions with the Director of Nursing and Midwifery, as she knew there was something going on, but the applicant would not elaborate. She was being managed regarding her ongoing unacceptable attendance.
The applicant’s attitude further became an issue around April 2017, when she asked for proof of everyone’s professional registration renewal. The applicant took further leave, so she could not discuss this with her.
After a long period of leave around March 2017 and April 2017, the applicant came back for a short period, and resigned on 12 May 2017. The email resignation was the first time she had any indication that the applicant had any issues with her back or neck.
The applicant gave one week’s notice and worked out that notice. Once she decided to go, she remembered the staff reporting to her that she started “clutching at straws”, making comments like “bending over breastfeeding hurts my back” and “I have a sore back”. She could not recall specifics of who told her.
The applicant also asked the Clinical Nurse Specialist (CNS) to complete some competencies on her last shift, because she “may need them where she was going”. She thought this was very odd. She questioned the CNS as to why she had done this for the applicant and was advised that Ms Moslemi had hassled her to complete them.
The applicant never reported an injury or incident that occurred whilst working at Nepean. At no time did she believe there was a need to report the applicant for injury management.

Evidence of Jill McEvoy-Williams

Ms McEvoy-Williams is Nepean’s Director of Nursing. Her statement is dated 6 July 2022.
The applicant was already employed when she started in her current role. She reported to Annette Nugent.
On 4 November 2016, she had a meeting with the applicant and Annette, when the applicant requested four months leave. She said her sister in Iran was sick, and she had elective surgery booked in December 2016.
They discussed the method required to formally request leave, and the applicant was advised she needed a leave requisition to be completed and submitted. It was explained that it would be difficult to grant four months leave. Four weeks leave, to go and see her sister, would be granted immediately. She was advised that further discussions regarding her leave for surgery could be discussed on her return to work.
The applicant accepted the leave to see her sister but insisted that if her surgery came up on her return, she should be granted leave to have it. She was advised she was expected to return to work after the four weeks leave, as per the roster, and she would work over Christmas, as other staff already had time off approved.
The applicant commenced leave, but on 22 November 2016 sent an email advising of her impending leave for elective surgery. She was advised that leave had not been built into the roster but took it regardless.
She denied that anyone would be told they had to return to work after having surgery. They would not allow a staff member to return to work without a medical clearance. The applicant provided a medical certificate, dated 14 February 2017, confirming her fitness to return to work after surgery.
She was unaware of the applicant having to work without taking rostered breaks. If she did not take scheduled breaks, the roster would show “NMB” (no meal break). The applicant’s shift records/roster do not note that she had not taken a break.
The applicant submitted her resignation in a letter dated 12 May 2017. It stated she was resigning due to a back injury. Prior to this, she had not been aware of any issues or pain the applicant was experiencing with her back.
The restrictions on the applicant’s registration didn’t come to light until she had left their employ. She received a request from the applicant, via Annette, on 4 August 2017, for a letter stating she had completed her clinical medication assessment on the ward. She needed this for CPD (continuing professional development) mandatory training.
She gave the applicant a letter confirming her work tenure and role and confirmed she had completed her compliance training. She said to Annette that there was “something fishy going on.” The applicant was constantly checking with her about the request for a letter. She assumed the applicant’s CPD points were being checked, as is the case when random audits are completed.
In March 2018, she received a call from the HCCC regarding a complaint about the applicant. The letter [sic] advised that, at the time of her work with Nepean, the applicant had conditions on her registration, including having to work under supervision. She had advised the HCCC that she had not been working at the time of the restrictions, which was not true.
The HCCC requested records of the shifts the applicant had worked, the contact details of the NUM she worked under, and supervision records. She checked the applicant’s registration and saw she had conditions imposed from 8 November 2016.
She did not have full details around what occurred for the restrictions to be imposed. All she knew was that it related to something that occurred at Auburn.

Evidence of Jessica Choy

Ms Choy is the employee services officer – people and culture of the third respondent. She provided information about the applicant’s employment by email dated January 2021.
The applicant commenced work with the third respondent on 19 January 2016, ceasing work on 21 December 2016.
The “separation reason” was recorded as “dissatisfied”. The form also recorded “Staff member has AHPRA restrictions not previously declared”. The applicant had worked 1,010.8 hours for the third respondent.

Medical evidence

Castle Towers Medical Centre

On 20 April 2009, the applicant presented as upset and depressed as her husband had left her and their children 20 days ago.
On 2 August 2013, the applicant had “many things happening”. She had a court case with her ex-husband. She had to stay in a motel due to road works at her house. Her son had also left her place. She was to try Lovan and was counselled.
On 6 August 2013, the applicant said there was an explosion with burning inside her bedroom on 31 July 2013. They were repairing underground. All her appliances, worth about $25,000, had gone bad. The company had asked her to bring a letter. She asked the doctor to correct the letter she was given, stating her anxiety and panic attacks were due to the explosion and not to other issues.

The Hills Medical & Dental Centre

On 4 November 2013, Dr Fahima Satter recorded that the applicant presented “due to W/C certificate” for the first time. For the last six months on and off her workload was very high. She needed to lift heavy weight and was working as a lactation consultant.
On 8 November 2013, Dr Satter recorded that the applicant was having chronic bursitis over her right shoulder. She could not lift her arm. “? need cortisone inj[ection] for bursitis.” A referral was also provided for physiotherapy.
On 9 November 2013, Mr/Ms Bon Bon Lee recorded the date of injury as 29 October 2013. The applicant had an increased workload with reduced staff.
The diagnosis was recorded as right shoulder “SST tendinopathy + bursitis -? secondary impingement.” [p/t?]
On 11 November 2013, Dr Satter recorded that the applicant’s condition was getting worse. She was totally unable to move her right shoulder. She was advised to have a steroid injection but was “not keen at this moment”. She was going for holiday from 16 November to 16 December, so requesting time off.
On 12 December 2013, Dr Satter recorded that the applicant was 50% well, but her upper arm activities were still restricted. “Physio & modified job” was recorded.
On 24 December 2013, Dr Kenneth Kang recorded “W/C correct mistake for pre-injury duty”.
On 9 January 2014, Mr/Ms Ashish Isaac recorded that the applicant reported that her shoulder felt about the same as at her last visit.
On 5 July 2015, Dr Nagulendran recorded that the applicant was suffering from acute stress, “bullying and harassment at work”. She was unable to stay in this environment.
On 30 July 2015, Dr Nagulendran recorded that the applicant needed a transfer out of Auburn onto post-natal ward. She had “PTSD” symptoms.
On 19 July 2016, Dr Nagulendran reviewed the applicant’s shoulder, elbow, and foot, “all work injuries”. She needed further scans.
On 26 July 2016, Dr Nagulendran reviewed the ultrasound scan. The applicant needed an injection.
On 14 December 2016, Dr Qumar Helali recorded that the applicant had had a hysterectomy on 8 December 2016.
On 14 February 2017, Dr Nagulendran recorded that the applicant had neck pain. She was tender over the facet joint and paravertebral muscles.
Dr Nagulendran reviewed the applicant’s neck pain on 5 March 2017. She was stable. She was to “get MRI as weak and tingling in left arm”, and CT guided injection if needed.
On 2 May 2017, Dr Nagulendran recorded that the applicant’s neck pain was ongoing. He explained that she had severe OA (osteoarthritis). She was to “try another injection.”
On 16 May 2017, Dr Jamileh Mirzadeh recorded that the applicant had a history of radiculopathy and cortisone injection did not work. She had advanced degenerative changes and was still in pain.
On 8 June 2017, Dr Nagulendran recorded that the applicant was no better with physiotherapy or injections. There was “lots of stress”, as she had given up her job in Penrith.
On 16 July 2017, Dr Nagulendran recorded that the neck pain was spreading to the right. The applicant was referred to a specialist. “Try facet joint injection”.
On 27 September 2017, Dr Abha Shah recorded that the applicant wanted a new referral for MRI of her spine, as the radiologist would not accept a referral from a specialist. She had ongoing C6 radiculopathic pain, left sided, six weeks post-laminectomy for OA of the cervical spine. The symptoms were persisting, not worse or better.
The applicant continued to consult Dr Nagulendran for pain and was prescribed medication.
On 16 January 2018, Dr Mark Liew, rheumatologist, recorded that the applicant had left cervical neuralgia “’16” (I assume 2016). She had surgery last year, which had not helped. He noted “? work related”.
Dr Liew recorded on 12 June 2018 that the applicant had an injection on the left side of her neck. Her neck was 20 points worse.
Dr Liew reported to Dr Nagulendran on 22 January 2018.
Dr Liew recorded a history of the onset of painful right shoulder, followed by the right elbow, during the course of employment in 2014. In 2015, the applicant developed painful swelling of the right ankle.
Dr Liew diagnosed, relevantly, well-established degenerative disease of the cervical spine with significant left cervical neuropathy. This was the dominant issue.
On 28 June 2018, Dr Nagulendran reviewed the applicant for chronic pain.
On 2 July 2018, Dr Liew reported to Dr Nagulendran.
Dr Liew recorded that the applicant’s dominant ongoing complaints were well-established degenerative disease of the cervical spine with significant left cervical neuropathy; degenerative rotator cuff disease; right lateral epicondylitis; chronic right gluteal enthesopathy of degenerative origin; and chronic periarthritis of the right ankle of degenerative origin.
On 20 September 2018, Dr Jamal Danishyar recorded that the applicant was applying for “disability”. She had a history of neck and ankle injury, and pain radiated to her arms. Progress MRI for her cervical spine and ankle were discussed.

Dr Con Kafataris – injury management consultant

Dr Kafataris reported to EML on 20 December 2013.
The applicant provided a history of the onset of right shoulder pain after holding babies to their mothers’ breasts for a prolonged period while giving lactation advice.
Dr Kafataris recorded that the applicant had had pre-booked leave, but she had improved at least 90% and was keen to return to suitable duties.
Dr Kafataris opined that the applicant had fairly typical features of subacromial or rotator cuff pathology. She had no features of a rotator cuff tear, but some evidence of impingement and possibly AC (acromio-clavicular) joint injury was less likely, but not excluded. The applicant was improving but had intermittent symptoms with certain movements.
There were no other features of other pathology that may have been missed, for example, cervical spine pathology, causing the symptoms. There were no “yellow flags”.

Our Medical Home Marsden Park

On 8 December 2017, Dr Nagulendran reported “to whom it may concern” that the applicant had severe arthritis and disc protrusion of the cervical spine, diagnosed in August 2016 by him and Dr Cook. She was awaiting neurosurgery in the public system.
The applicant also had major depression and post-traumatic stress disorder following a work injury in January 2015, as well as being electrocuted, which she felt also contributed to her depression.
On 21 August 2018, Dr Nagulendran recorded that the applicant attended for chronic pain. There was an imaging request for CT guided cervical spine injections “(degenerative disc disease. CT guided injections to settle symptoms. Pls bulk bill. Many thanks)”.
On 28 October 2018, Dr Nagulendran recorded that the applicant had a cervical disc herniation. A Centrelink certificate was issued and there was again an imaging request for CT guided cervical injections, “(facet joint worse on left”).
Dr Nagulendran continued to review the applicant for neck pain and right ankle pain.
On 12 December 2018, Dr Nagulendran recorded chronic pain, and “chased Auburn for old X-rays from 2015”. There was a specialist referral to Dr Matthew Lee.
On 19 December 2019, Dr Nagulendran recorded that the reason for the applicant’s visit was cervical discectomy.
On 22 December 2019, Dr Nagulendran provided a report “To whom it may concern”.
Dr Nagulendran reported that he had been the applicant’s GP since 2013. She had presented with right shoulder and neck pain in 2013. The symptoms had significantly worsened by March 2017.
The applicant was treated unsuccessfully with simple analgesia, CT guided injections and physiotherapy, until she was referred to neurosurgery.
The applicant’s injuries were the development of chronic neck, shoulder, and arm pain on her left-hand side, as well as left limb weakness and sensory loss.
Dr Nagulendran agreed that the neck pain arising from the disc prolapse in the applicant’s cervical spine would have been caused by her job as a midwife, due to the lifting and movement pressures of the job.
Dr Nagulendran opined that the applicant’s problems started in 2013 when she was working at Auburn, and these issues had been building up over time. Due to her duties, her cervical spine injury was a direct result of the nature and conditions of her employment at Auburn.
On 3 February 2020, Dr Nagulendran provided a further report, with further answers to questions 5 and 6.
Dr Nagulendran opined that the applicant’s right shoulder injury was caused by the nature and conditions of her employment, as the injury was caused by lifting at work. Her left arm and cervical injuries were sustained as a consequence of her right shoulder injury, due to overreliance.
On 10 October 2020, Dr Nagulendran recorded the reason for the applicant’s visit as anxiety/depression, but listed several “subjective” matters, including “neck pain – review pain -? needs another discectomy”.

Dr Raymond Cook – neurosurgeon

Dr Cook reported to Dr Nagulendran on 20 June 2017.
He had examined the applicant regarding her left-sided brachialgic pain. He thought she was describing a cervical radiculopathy. He could not work out whether it was a combination of C5 and C6, but “certainly C6 from her story would be implicated.”
The applicant’s symptoms had been present for about six months. Although she had some neck pain, she mostly complained of scapular pain and arm pain. It was only on the left, with no symptoms on the right.
On 18 July 2017, Dr Cook reported that the applicant’s nerve conduction study/EMG of the left upper limb was normal, so it was not a permanent injury of the nerves of the left arm. The MRI scan showed mild foraminal stenosis on the left at C4/5, and quite severe foraminal stenosis at C5/6 bilaterally, particularly on the left. There was mild canal stenosis at C3/4 without foraminal compromise.
Dr Cook opined that the applicant needed a foraminectomy on the left at C5/6. He did not think he needed to operate at C4/5, although she had an arthritic joint at that level. It was not really “squashing” the C5 nerve root to any great degree.
Dr Cook performed the surgery on 14 August 2017.
The discharge summary from RNS is dated 15 August 2017.
The discharge summary recorded the HPC (history of presenting complaints) as left sided pain all the time. The applicant reported having difficulty lifting her left arm at times. The symptoms started last year in October after hysterectomy. They had worsened dramatically in May this year.
On 6 October 2017, Dr Cook referred the applicant to Dr Lewis Holford, pain management specialist.
Dr Cook advised that the applicant had recently had cervical foraminotomy at C5/6 for a C6 radicular pain complaint. There were a lot of other issues, including some depression and work issues.
Dr Cook opined that the applicant had genuine pain relating to her facet joint. She had an irritable facet at C4/5, and he had operated at C5/6.
Dr Cook thought the applicant “would be a really poor candidate for more surgery”.
Dr Cook also reported to Dr Nagulendran on 6 October 2017.
The applicant had definitely improved, but she was not satisfied with her plight. She was still talking about not being able to go back to work and about some sort of long-term disability through Centrelink. She seemed quite depressed.
The applicant had few, if any, symptoms relating to a C6 nerve disturbance. Most of her pain was around her neck and shoulder region. Dr Cook thought the pain she was getting reflected probably facet pain, either from the level operated on (C5/6) or the arthritic facet joint at C4/5. He felt this would be quite troublesome for her.
The applicant’s C6 myotome was functioning normally, with pain that was NOT likely to be radicular, and the pain in the neck was as described above. (Capitalisation in original).

Northern Private Pain Centre

Dr Holford reported to Dr Cook on 19 December 2017.
Dr Holford recorded a history that the applicant developed left sided cervical and left upper limb radicular pain 15 months ago, on a background of her work at North Shore Private and RNS. She underwent a left C5/6 foraminotomy and decompression.
There had been improvement in the applicant’s left upper limb pain, but she continued to have symptoms and had become increasingly aware of axial cervical pain, left side predominant. A recent C5/6 nerve root injection did not alter her symptoms. She underwent a right C3/4 facet joint injection for right sided neck pain and headaches on 11 December, with significant ongoing relief.

A/Prof Michael D. Ryan – orthopaedic and spinal surgeon

A/Prof Ryan was qualified by the applicant and reported on 3 April 2019.
A/Prof Ryan recorded a history that the applicant first presented to her GP on 3 November 2013 complaining of right shoulder and right arm pain. She related this to heavy physical work when Auburn was understaffed.
Because of pain in her right shoulder, the applicant resorted to using her left shoulder more during physical activities. By late 2016, she had pain on the left side of her neck, left shoulder, and left arm. She was referred for CT scan and MRI scan of her cervical spine in March 2017.
A/Prof Ryan noted the history of the applicant’s treatment, including the surgery performed by Dr Cook. Her symptoms had persisted.
A/Prof Ryan reported that the applicant’s chief injuries had been neck pain and reduction in range of motion of both shoulders, more on the left. They had arisen as a result of her physical exertions at work, when employed at Auburn, RNS, and Nepean.
The applicant’s right shoulder injury “on the balance of the evidence” was due to the nature and conditions of work. A/Prof Ryan concluded that the pain arose in her neck and radiated initially to her right arm. When she changed to using her left arm to protect/reduce symptoms in her right arm, her left arm worsened.
A/Prof Ryan relied on the applicant’s history to determine that her employment was a substantial contributing factor to her physical injury and incapacity.
A/Prof Ryan assessed the applicant’s WPI as 17% as a result of injury to her cervical spine; 7% as a result of injury to her right shoulder; and 8% as a result of injury to her left shoulder, a total of 29% WPI.

Dr J. Brian Stephenson – orthopaedic surgeon

Dr Stephenson was qualified by the first respondent and reported first on 19 August 2019.
Dr Stephenson noted that the date of injury for the applicant’s right shoulder was given as due to the nature and conditions of her employment from 2007 to 2017. She alleged a consequential left shoulder injury, and there was “some suggestion” she was alleging her cervical/neck injury was also consequential in nature, that is, arising from the shoulders.
The applicant provided a history that she was at Auburn from 2007 to 2015, with pain in the right shoulder developing in 2014. She was on nightshifts and very busy. There was a lot of heavy work. Mothers needed assistance and education with breastfeeding. She finally stopped work when she was at Nepean in May 2017. When her right shoulder became painful, she had to use her left arm and shoulder, with consequential discomfort.
Because the applicant had neck pain and brachialgia, Dr Cook reported on 18 July 2017 that she needed a foraminotomy on the left at C5/6.
Dr Stephenson diagnosed bilateral soft tissue injury to the applicant’s shoulders. The cervical spine diagnosis was of surgical decompression.
Dr Stephenson opined that the injuries to the applicant’s shoulders and neck/cervical spine were consistent with the nature and conditions of her work. Both could be regarded as a disease of gradual process, which had been aggravated, accelerated or deteriorated “as to” her working conditions, in view of the radiological findings and the symptoms, which came on due to the nature and conditions of her employment. Her employment was the main contributing factor. There was no other explanation.
Dr Stephenson suggested that the “predominant employer” was Auburn (in response to a question about the last hospital to employ the applicant in employment to the nature of which the disease was due), due to the length of time the applicant was employed. At North Shore Private Hospital, she was doing some more casual work on-call.
Dr Stephenson opined that the applicant’s alleged bilateral shoulder injuries were not symptoms emanating from the neck. They were not due to the neck injury. He had noted the absent radiculopathy in the upper extremities.
Dr Stephenson agreed that, from the history provided to A/Prof Ryan, it was equally logical that the applicant’s pain arose in her neck, radiated initially to her right dominant arm, and changed to the left arm to protect the dominant arm. However, he was unable to explain [sic] the measurable restriction range in both shoulders to the cervical spine condition. There had been a cervical decompression on the left, with no evidence of persisting radiculopathy.
Dr Stephenson assessed the applicant with 17% WPI as a result of injury to the cervical spine; and 7% WPI as a result of injury to each shoulder, a combined assessment of 28% WPI.
Dr Stephenson again reported on 12 September 2022.
Dr Stephenson referred to the AIMS Incident Detail Form and the applicant’s investigations.
He reported there was evidence on CT scan of cervical spondylosis aggravated by the work-related injury, with significant neural foraminal narrowing and exiting nerve root indentations at levels including C4/5, C5/6, and C6/7. Dr Cook undertook left C5/6 decompression of the C6 nerve root.
The diagnoses were work-related cervical spondylosis, gaining DRE Category III, with cervical discopathy and radiculopathy, and painful rotator cuff disease of both the left and right shoulders.
As regards causation, Dr Stephenson opined that radiculopathy was instituted at the cervical spine by the heavy nature of the work and the history given by the applicant. The date of injury was on or about 4 November 2013, also confirmed by A/Prof Ryan.
The diagnosis of pathology in the applicant’s neck was properly described as a disease process, to which her employment was the main contributing factor. Her employment was the main contributing factor to the disease being aggravated, accelerated, exacerbated or made to deteriorate.
As regards causation of the left shoulder injury, the date of injury was on or about 4 November 2013. The diagnosis of pathology was properly described as a disease process, to which the applicant’s employment was the main contributing factor. Her employment was the main contributing factor to the disease being aggravated, accelerated, exacerbated or made to deteriorate.
As regards causation of the right shoulder injury, the diagnosis was not the consequence of a frank injury. The diagnosis of pathology was properly described as a disease process, to which the applicant’s employment was the main contributing factor. Her employment was the main contributing factor to the disease being aggravated, accelerated, exacerbated or made to deteriorate.

Dr Stephen Rimmer – orthopaedic surgeon

Dr Rimmer was qualified by the second respondent. His first report is dated 24 March 2021.
Dr Rimmer recorded a history that the applicant worked at Auburn between 2007 and August 2015, and alleged that she injured her right shoulder; and as a result of the nature and conditions of her work, she also injured her cervical spine and left shoulder.
The applicant described a busy night in October 2013, when “my right hand went off”. She reported it and sought medical attention. She was off work for a few weeks and returned to pre-injury duties. In August 2015, she resigned as “there was too much work”.
The applicant worked for RNS from January 2016 to October 2016, and for Nepean from April 2016. She “claim[ed]” that she had to resign in May 2017, as she could not tolerate the pain.
Dr Rimmer noted the surgery performed by Dr Cook. The applicant “claim[ed]” this was of little benefit. She was subsequently referred to a pain management clinic.

Dr Rimmer diagnosed abnormal illness behaviour but noted he needed to see the applicant’s investigations. He regarded it as highly unlikely that, if the injuries could be regarded as a disease, her employment with Nepean was the main contributing factor to the disease but reiterated that he needed to see the investigations.
Dr Rimmer was asked if the injuries could be regarded as a disease, and if he considered that the nature and conditions of employment was the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of the disease. He responded, “not applicable”.
If Dr Rimmer did not consider the applicant’s injuries could be regarded as a disease, he was asked if the nature and conditions of her employment with Nepean were a substantial contributing factor to the injury. He again responded, “not applicable”.
Dr Rimmer provided a supplementary report dated 30 August 2021. He had been provided with radiological investigations and the statement of Ms McEvoy-Williams.
The diagnoses were abnormal illness behaviour and four years post left C5/6 foraminotomy.
Dr Rimmer opined that the CT scan of the applicant’s cervical spine clearly showed she had significant multilevel degenerative osteoarthritis, which was consistent with a disease of gradual onset.
Dr Rimmer did not believe the applicant had a genuine injury, that is, he did not consider the nature and conditions of her employment at Nepean were the main contributing factor to her disease. He opined that the CT scan of her cervical spine was consistent with constitutional degenerative change.
Dr Rimmer was asked, if he considered the injuries could be regarded as a disease, he then considered that the nature and conditions of the applicant’s employment were the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of the disease. He responded, “See my previous answer”.
Dr Rimmer was next asked if he did not consider the injuries could be regarded as a disease, did he then consider that the nature and conditions of the applicant’s employment with Nepean were a substantial contributing factor to the injury? He referred to his previously expressed opinion that the applicant did not have a genuine injury, that is he did not consider the nature and conditions of her employment at Nepean were the main contributing factor to her disease.
Dr Rimmer did not believe the applicant had any WPI of her cervical spine or left and/or right upper extremities. She clearly demonstrated abnormal illness behaviour.

SUBMISSIONS

The submissions have been recorded and a transcript is available. I will therefore only summarise the submissions.

Applicant

The applicant referred to the description of her injury in the Application. She submitted that she developed gradual pain in and about the neck and right shoulder that deteriorated over a period of time.
The applicant submitted that she had continuing problems. She continued to perform heavy work, for relatively short periods with RNS and Nepean, noting that she worked for Auburn for more than 10 years.
The applicant submitted that over a period of time, she developed problems with the left side caused by the fact that she had symptoms affecting her dominant right arm and neck. Her case is supported by A/Prof Ryan and in an oblique way by Dr Stephenson. The only contrary medical voice is that of Dr Rimmer, which she submitted is entirely unhelpful.
Dealing with the onset of complaints, the applicant submitted that the scheme agent at the time issued a notice identifying acceptance of liability relative to a frank episode of injury. An analysis of the material reveals that it wasn’t a frank incident of injury in the true sense of the word. She referred to the AIMS incident detail form.
The applicant submitted that it arose from the AIMS incident detail form that she had pain in the hand, it was not isolated to the shoulder, and deep pain in the arm itself, associated with the work she described in her statement and the Application.
The applicant submitted that we have a global description of pain going down the right arm, reference to injury or complaints in relation to the neck, nerve issues, and issues associated with supporting weight in the arm itself, as opposed to restriction of movement in the shoulder.
The applicant submitted that that would more than comfortably satisfy me that there was reporting of an injury to the neck and shoulder at the time, despite the concession of the insurer relative to the right shoulder only. She referred to the injury notification form.
The applicant referred to her GPs’ records in November 2013. She submitted that clearly the injury was more extensive than a right arm injury. She referred to her evidence about her reliance on her left arm, resulting in problems with her left shoulder, and the contemporaneous evidence about understaffing.
The applicant referred to Ms Nugent’s evidence. She submitted it dealt with matters that are essentially non-contributory. I have her evidence of the nature of her work and the consistent reporting of it to the medical practitioners and her employer.
The applicant submitted that no evidence was advanced of any import to suggest that the work she did was anything other than as she described, and absent any attack, I should accept her history, which provided a solid basis for the opinions expressed by A/Prof Ryan and Dr Stephenson.
The applicant submitted that in his first report Dr Rimmer obtained a brief history relative to matters going to causation, and the attribution of liability or acceptance or otherwise of the injury, and then refused to answer any of the questions put to him. He was not prepared to opine until he saw the investigations, but despite not having them, was more than happy to accept there was abnormal illness behaviour. The applicant submitted that coloured his credibility.
The applicant submitted that Dr Rimmer was provided with the scans but did not explain why he did not believe she had a genuine injury, when there was radiological evidence showing the pathology and surgery had been undertaken. His opinion that she demonstrated abnormal illness behaviour was not borne out by the evidence. She submitted the “huge amount of treating material” was consistent with the evidence of the independent medical examiners and her statements.
The applicant submitted that the histories recorded in the clinical notes needed to be approached with caution, citing Davis v Council of the City of Wagga Wagga.[1]
[1] [2004] NSWCA 34.
The applicant based her case on A/Prof Ryan’s opinion. If I were persuaded that Dr Stephenson was the preferable course, then liability would shift to the second respondent.
In reply to the respondents, the applicant submitted that the second respondent spent considerable time trying to impugn her credit, without ever dealing with or addressing the principal issue I need to consider. That is, was the work she was doing with the respondent employment to the nature of which the disease is due? The only person who gave evidence in relation to that was the applicant, and the only doctors who recorded competent histories were A/Prof Ryan and Dr Stephenson.
The applicant submitted I have to accept that the work she did with both the second and third respondents was employment to the nature of which the disease was due. There is a congenital issue but “you take your workers as you find them”.
The applicant submitted that if the second respondent wanted to argue there was another medical explanation for the neck complaint, as a consequence of the hysterectomy, it needed to bring medical evidence to support that proposition.
As regards the second respondent’s submission that an inference can be drawn from a GP urging his staff not to run through workers compensation, but through Medicare, the applicant submitted that a ready explanation is that the doctor gets paid in the next couple of minutes, rather than in 18 months.
The applicant referred to Dr Rimmer’s acceptance that there had been an aggravation, but not by work, and submitted he did not point us in the “vague direction” of something that might have caused it.
As to the issues of notice and claim, the applicant submitted that I am being asked to bring to bear my experience of how the disease provisions in the 1987 Act operate. It is not a straightforward question, and one could not expect her to “trundle into” Nepean and say her employment was employment to the nature of which the disease she was suffering was due.
The applicant submitted that the date of injury is the date the claim was made, which is May 2022. Both the second and third respondents had been on notice of a claim relative to a disease injury both pre- and post- that date of claim.
The applicant submitted that the evidence of Ms Nugent and Ms McEvoy-Williams has no relevance from a legal point of view, with reference to the medical evidence, as to whether or not she suffered an injury.
The applicant referred to the detail provided in the AIMS incident report form and the injury report form. She submitted they are the first respondent’s documents and it had called no evidence to suggest they are other than accurate.

First respondent

The first respondent accepted that the applicant suffered a right shoulder injury with it, the date of which was 21 October 2013. There had been some resiling from the accepted right shoulder injury and it was suggested it was a nature and conditions type injury, but there is no doubt that something occurred to the applicant’s right shoulder in or about October 2013.
The first respondent submitted that, in accordance with Dr Stephenson’s evidence, the consequential condition of the applicant’s left shoulder was less clear. In terms of the right shoulder and cervical spine, it was a disease of gradual process that had been aggravated by the nature and conditions of employment, the disease provisions apply, and liability is fixed on the last employer.
The first respondent referred to the applicant’s evidence and submitted this is a classic case of disease injury. When the treating material is considered, 2017 “was a very big year for the applicant and her pathology”, which can’t be ignored.
The first respondent submitted that Dr Stephenson’s suggestion that the applicant’s predominant employment was with it is not the test. If I find this is a disease of gradual process that has been aggravated, I ignore that, because he applied a qualitative test, as opposed to the test under the legislation.
The first respondent submitted that there was no injurious event that caused any left shoulder or cervical spine injury, and it resisted the argument that there was a consequential condition to the neck and left shoulder. Some caution must be exercised as to the weight to be given to the AIMS incident form. There is a reference to neck pain, but that is all that is said. The injury notification form referred to the neck but included codes and we don’t know what they mean.
The first respondent did not suggest there were no neck complaints, but submitted I need to exercise caution in reliance on that as substantiating there was a neck injury. It submitted there was only one complaint of neck pain on 14 November 2013, and no further mention of the right shoulder or neck problem until 19 July 2016. There was then no further mention of neck pain until 14 February 2017.
The first respondent referred to the applicant’s evidence that she was “constantly” required to physically exert herself, submitting that was not limited to Auburn. Her evidence of consequential condition is not really supported in any great detail in the medical evidence.
The first respondent submitted that the applicant was performing the tasks of which she gave evidence with the second and third respondents. If I find injury, that is a disease-type injury and liability is fixed with the last employer, because the tasks performed were very similar. The applicant squarely said that while performing her duties with the second and third respondents, she experienced exacerbation and aggravation of her symptoms.
The first respondent submitted that A/Prof Ryan seemed to suggest there was a consequential condition of the applicant’s left shoulder, but ultimately said the neck pain and reduction of range of motion of the shoulder, more on the left, arose as the result of her physical exertions at work.
The first respondent submitted that if I accept the treating evidence and the applicant’s statements, I would accept that it’s a disease of gradual onset, aggravated by the nature and conditions of employment, and liability is fixed on the last employer. Dr Stephenson classified it as a disease process.
If I did not accept the argument that the hysterectomy caused the neck pain, then I would have to conclude, in line with Dr Cook’s report of 20 June 2017, that the symptoms in the neck arose about six months earlier, in about December 2016 or January 2017. If I don’t find the hysterectomy is relevant, liability is fixed to the second respondent.

Third respondent

The third respondent submitted there is no evidence of a frank injury to any of the claimed body parts while the applicant was working for it. The real question is whether her employment aggravated, accelerated, exacerbated or deteriorated a disease process. The applicant’s period of employment was from 19 January 2016 to 21 December 2016.
The third respondent submitted that the applicant’s evidence was not specific as to her precise duties with it. It does not give me a platform in which I would be comfortable finding there was aggravation of the disease while working for RNS. It submitted Dr Stephenson took the view that the contribution of employment with RNS was much less than with Auburn.
The third respondent submitted there is an absence of any complaint about injury or aggravation during the period of employment with RNS, referring to the GPs’ records.
The third respondent submitted that at its highest, there was a very general assertion by the applicant, which is not supported by any complaint, time off, or inability to work, and there was no contemporaneous medical complaint or record.
The third respondent submitted I would not be comfortable finding there was any aggravation during the applicant’s employment with it.
The third respondent submitted I would not find the history recorded by A/Prof Ryan of pain by the end of 2016 in the left side of the neck, left shoulder, and left arm was accurate. There is no sound foundation to apply his opinion to aggravation.
The third respondent submitted that Dr Stephenson did not address the real issue of whether employment with it and the second respondent caused aggravation or whether employment generally was the main contributing factor to the disease.
The third respondent summarised there was insufficient evidence to make a finding that there was aggravation of an underlying disease process or condition in its employ. The evidence just isn’t there.
The third respondent submitted that, if I found aggravation in its employ, then s 16 of the 1987 Act applied, and the second respondent was the last employer.
As regards the issues of notice and claim, the third respondent referred to the reply to its request for particulars. The applicant’s solicitors advised that she did not recall when or to whom she reported pain to her right shoulder, but she reported it to her supervisor at the time. The third respondent submitted there was next to no information provided, a significant period elapsed until the claim was made, and I would not get to the point of considering “prejudice”.
The third respondent referred to Warwick Hobart trading as Terry White Chemists v Pietrzak[2] and Shoalhaven City Council v Schutz[3] as authority for the proposition that “injury” in s 254 of the 1998 Act is an injurious event.
[2] [2006] NSWWCCPD 315.
[3] [2012] NSWWCCPD 14 (Shutz).

Second respondent

The second respondent submitted that its difficulty was that a number of proceedings had been brought, and it appears that the first time it was made aware was in 2021. It was “intriguing” that both Dr Stephenson and A/Prof Ryan provided reports in 2019, but at no point before April 2021 was there any reference to Nepean.
The second respondent submitted that A/Prof Ryan did not actually say employment with Nepean or RNS was the main contributing factor to any actual condition or aggravation of the applicant’s condition. Rather, he seemed to rely on the notion that the condition related basically to employment at Auburn.
The second respondent submitted that Dr Stephenson’s view was that Auburn was the predominant employer. He made no comment about Nepean contributing to the injury, apart from noting that the applicant was employed part-time with it between April 2016 and May 2017. He felt that Auburn was predominant in terms of the nature and conditions of employment.
The second respondent submitted that it was untrue, as asserted by the applicant in a pre-employment questionnaire at Nepean, that she did not suffer any hand or shoulder complaints, or any condition with her neck, as she had made a claim and been compensated in Auburn’s employ. No difficulties or issues with work, or complaints about the respective body parts, were raised with Ms Nugent.
The second respondent submitted that for the first time in her resignation letter the applicant referred to issues about her back and neck, but there was no reference to work having played a role with these issues.
The second respondent referred to the HCCC complaint and the restriction placed on the applicant. It submitted those matters come into play in deciding whether the word of the applicant or that of the two witnesses who gave statements should be accepted. This plays into both ss 254 and 261 of the 1998 Act, remembering that employment finished in May 2017. The applicant failed to comply with both ss 254 and 261.
The second respondent submitted that proceedings were brought in 2019, 2020 and ultimately 2021, when it first became aware of it. At no point was it put on notice of any claim, or of this claim, and there was certainly no notice of injury. As the applicant had made a claim against Auburn, she was fully aware of the requirements of doing so.
The second respondent didn’t accept that the applicant had sustained an injury simpliciter, and certainly there was no evidence as far as it could see of any aggravation to a degenerate condition.
The second respondent referred to the applicant’s statements. She put the date of severe pains in her shoulders, radiating to her arms and neck, at the end of 2016, and 2017 became a sudden period of activity in relation to radiological examination. She deposed that she decided in April 2017 to tender her resignation but did not stop work until May. She referred in her first statement to “following my injury”, which the second respondent submitted could be surmised as reference to the injury in 2013, from the balance of the statement.
The second respondent submitted that, whatever proceedings were brought in 2019 with A/Prof Ryan’s, and then Dr Stephenson’s, reports, there was some rethinking as to how the case was to be approached, and the applicant needed to supplement her previous statement. Her statement in May 2021 was all about Auburn and RNS.
The second respondent submitted that it was not until it was joined, and a factual investigation was conducted, that a supplementary statement was put on to try to counter the matters deposed to by the NUM.
The applicant asserted there was no restriction on her registration at the time of her employment with Nepean, and the second respondent conceded that was probably correct, because there was a complaint against her, but the restriction didn’t come into force until November 2016. The applicant was on notice of it because she attended a hearing in about August 2016.
The second respondent referred to the applicant’s evidence that she never complained about the work she was doing, problems doing it, or any impairment or incapacity. She had given evidence about being called back to work after her hysterectomy and “throws in for good measure” that the work was much heavier in 2017, which came in for the first time, and was not recorded anywhere other than in this statement.

The second respondent submitted that the applicant had not dealt with the reason for her neck pain being recorded by RNS as being related to her hysterectomy.
The second respondent referred to the GPs’ notes, which recorded that the applicant’s life had not been easy. She was involved in a very bad car accident, there were significant family problems, and she had treatment for depression and anxiety. There was a court case with her ex-husband, and an electrical fire in her house on 31 July 2013.
The applicant wanted her GP to write a letter saying that her panic attacks were due to the explosion and not all her other issues. The second respondent submitted that she appeared to be prepared to request medical certification that suited her argument at the time.
The second respondent referred to the applicant’s claim in 2013 and return to work on or about 4 February 2014. There was then “a bit of a hiatus”. The applicant had issues with her right ankle and a claim about bullying and harassment. The second respondent submitted that on each occasion she had a problem in respect of her employment and being injured, she reported to the same doctor, who provided her with treatment, certificates, support, and appropriate testing.
The second respondent submitted the applicant’s GP was engaged in ongoing review of the old injury she had at Auburn. Nowhere do the records say it was aggravated at work, made worse, or anything like it.
The second respondent referred to the entry in the GP’s request for investigations and facet joint injections. The second respondent submitted that the entry “Please bulk bill” was very telling; and this was a request for treatment that was unrelated to any claim or entitlement the applicant might have. It was being requested by the same doctor who provided support for her in respect of her earlier claims.
The second respondent submitted that the applicant’s referral for either physiotherapy or chiropractic treatment for her neck in 2017 was not in respect of any work injury and was being provided under a care plan.
The second respondent submitted that Dr Cook recorded that the applicant’s symptoms had been present for about six months, which dovetailed precisely with the date of the hysterectomy. There was once again no refence to anything to do with work. The second respondent referred to the discharge summary. There were other entries that brought the date of onset to about October 2016. The prescription of significant painkilling medication post-dated the surgical procedure.
The second respondent referred to Dr Nagulendran’s report dated 22 December 2019. It submitted that he did not suggest, notwithstanding that he had treated the applicant from 2013, that either it or the third respondent had any role to play in her symptoms.
The second respondent submitted that the applicant was prone to developing symptoms in various parts of her anatomy, sometimes for the simple reason of degeneration becoming apparent, other times as a result of specific episodes, as in 2013, and as on 8 December 2016 when she had a hysterectomy.
The second respondent submitted there was no evidence contemporaneously to support the notion that the work the applicant performed either with it or the third respondent even symptomatically, and certainly not pathologically, increased her symptoms.
The second respondent submitted that the notion that work can bring about a deterioration or aggravation of a degenerate condition is well-known in the Commission, but equally some evidence that would support that is expected. The applicant’s own GP asserted as late as 2019 that the condition related only to the first respondent, which is consistent with the GPs’ notes.
The second respondent submitted that it was telling that the investigations and treatment of the applicant’s neck in 2016 were provided under Medicare, as she was astute, knew her rights, and brought various claims against Auburn. There was not a scintilla of evidence to suggest the work she did (with it and the third respondent), albeit it was of a similar nature, was giving her any symptomatic issues, other than after the event.
The second respondent submitted that Dr Rimmer had it right. The degenerate condition had been aggravated, but not by work. Something had “set [the applicant] off” and the only contemporaneous record of what caused the aggravation is that made by RNS as being a result of hysterectomy surgery.
The second respondent referred to the outcome of the HCCC complaint.[4] It submitted the Commission [sic] determined that the applicant had misled it and made statements that were untrue. it referred also to the evidence of Ms Nugent and Ms McEvoy-Williams. It submitted there was no record of complaint, issues, requests for any treatment or particular favours, or inability to work, and the applicant worked overtime when it was available, to the end effectively.
[4] Health Care Complaints Commission v Moslemi [2020] NSWCATOD 2.
The second respondent finally submitted that I could not be satisfied that the applicant could demonstrate any contemporaneous symptomatic increase that would go near convincing me there was a relevant aggravation, acceleration or deterioration of any disease condition she might suffer.

SUMMARY

Section 4 of the 1987 Act provides:
“4 Definition of ‘injury’
‘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, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942 , or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 15 of the 1987 Act provides:

“15 Diseases of gradual process--employer liable, date of injury etc

(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process--
(a) the injury shall, for the purposes of this 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 to the nature of which the disease was due.

(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case--
C = T x A/B
‘C’ is the contribution to be calculated for the particular employer concerned.
‘T’ is the amount of compensation to which the employer is required to contribute.
‘A’ is the total period of employment of the worker with the employer during the 12 month period concerned, in employment to the nature of which the injury was due.
‘B’ is the total period of employment of the worker with all employers during the 12 month period concerned, in employment to the nature of which the injury was due.

(3)     Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.
(4)     In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease.
(5)     This section does not apply to an injury to which section 17 applies.”

Section 16 of the 1987 Act provides:

“16 Aggravation etc of diseases--employer liable, date of injury etc

(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease--
(a) the injury shall, for the purposes of this 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.

(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) The Commission is to determine the contributions that a particular employer is liable to make on the basis of the following formula, or on such other basis as the Commission considers just and equitable in the special circumstances of the case--

‘C’ is the contribution to be calculated for the particular employer concerned.
‘T’ is the amount of compensation to which the employer is required to contribute.
‘A’ is the total period of employment of the worker with the employer during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.
‘B’ is the total period of employment of the worker with all employers during the 12 month period concerned, in employment that has been a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration concerned.

(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4) This section does not apply to an injury to which section 17 applies.”

Section 254 of the 1998 Act provides:
“254 Notice of injury must be given to employer
(1)     Neither compensation nor work injury damages are recoverable by an injured worker unless notice of the injury is given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
(2)     The failure to give notice of injury as required by this section (or any defect or inaccuracy in a notice of injury) is not a bar to the recovery of compensation or work injury damages if in proceedings to recover the compensation or damages it is found that there are special circumstances as provided by this section.
(3)     Each of the following constitutes special circumstances--
(a) the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings by the failure to give notice of injury or by the defect or inaccuracy in the notice,
(b) the failure to give notice of injury, or the defect or inaccuracy in the notice, was occasioned by ignorance, mistake, absence from the State or other reasonable cause,
(c) the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened,
(d) the injury has been reported by the employer to the Nominal Insurer in accordance with this Act,
(e) the employer has contravened section 231,
(f) the injury has been treated in a first aid room at the place of work,
(g) if the employer is the owner of a mine--the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011 .
(4)     In addition, if the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop, each of the following constitutes special circumstances--
(a) the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section,
(b) the injury has been reported by or on behalf of the employer to an inspector of mines or an inspector under the Work Health and Safety Act 2011 ,
(c) the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop.”
Section 261 of the 1998 Act provides:

“261 Time within which claim for compensation must be made

(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question.
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either--
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.

(5)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if the insurer concerned determines to accept the claim outside that period. An insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority.
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.
(7)     If death results from an injury and a person who is entitled to claim compensation in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of this section to a claim by that person, taken to be the date that the person became so aware.
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
(9)     When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of this section as the making of a claim for compensation in respect of the injury.”

The first respondent conceded that the applicant sustained an injury to her right shoulder on a date that has been pleaded as 1 November 2013 (the date of first incapacity as a result of that injury), but the date of which was recorded as 29 October 2013.
The first respondent disputed that the applicant also injured her neck, and for that matter, her right arm, on 1 November 2013.
I am satisfied that the applicant also sustained injury to her neck and right arm on 1 November 2013. Both the AIMS incident detail form and the injury notification form, which are contemporaneous documents, describe injury to her neck, shoulder, and arm.
The first respondent submitted that we do not know the meaning of the codes referred to in the injury notification, but we do know the meaning of the word “neck”, and both the applicant and Ms de Rossi recorded injury to Ms Moslemi’s neck. Dr Nagulendran has reported that the applicant presented with neck and right shoulder pain in 2013.
The Application claimed that there was a gradual onset of neck and right shoulder pain leading up to 1 November 2013. The applicant has also given uncontradicted evidence that Auburn was short-staffed over the several months that she experienced pain in her right shoulder and right arm.
The applicant’s evidence is supported by the AIMS incident detail form, in which she described contributing factors to the injury as a heavy workload over the last two weeks, and what I have assumed was a reference to a lack of senior midwives on shift. In any event, the applicant was obviously referring to a staff shortage.
Dr Satter recorded on 4 November 2013 that the applicant’s workload for the last six months was very high, providing further support for Ms Moslemi’s evidence about a shortage of staff.
Dr Satter recorded on 11 November 2013 that the applicant was totally unable to move her right shoulder. She was not keen on a steroid injection and was about to have one month’s holiday.
One month later, Dr Satter recorded that the applicant was 50% well (from a position where she could not move her right shoulder, and not having worked for a month), but her activities were still restricted. A “modified job” was recommended.
The applicant continued to work as a midwife. I accept her evidence that she relied more on her left shoulder as a result of the injury to her right shoulder. By 9 January 2014, Mr/Ms Asish Isaac recorded that the applicant said her (right) shoulder felt about the same as at her last visit. The applicant has, again, given uncontradicted evidence about the nature of her duties for all three respondents, and I accept that they would require use of both arms.
The applicant’s claim to have sustained a consequential condition of her left shoulder is supported by A/Prof Ryan, and Dr Stephenson did not discount this possibility. He, however, opined that the condition of her left shoulder was due to the nature and conditions of her employment. I am satisfied that the applicant has sustained a consequential condition of her left shoulder, in addition to injuries to her neck and right shoulder, in the first respondent’s employ. The deemed date of injury is 1 November 2013, the date of first incapacity.
If the applicant has sustained a “disease injury”, then liability falls on the employer that last employed her in employment to the nature of which the disease, or the aggravation, acceleration, exacerbation or deterioration of the disease is due. For convenience, I will use the term “aggravation” in these reasons.
In Taylor v J & D Stephens Pty Ltd[5], the Court of Appeal said:
“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.” (at [33]).
[5] [2018] NSWCA 267 (Taylor).

The second respondent submitted that there was no contemporaneous evidence to support the notion that the work the applicant performed either with it or the third respondent increased her symptoms, and some evidence that would support deterioration or aggravation of a degenerative condition would be expected.
In Taylor, the Court of Appeal said that the absence of contemporaneous complaint was not determinative of whether the appellant worker had suffered injury.
McColl AP agreed with the reasons of Simpson AJA, and added, at [3]-[5]:
“There was no controversy before the Arbitrator that there were no contemporaneous references in the treating medical evidence of injuries or symptoms experienced in the body parts the appellant alleged in his nature and conditions/disease injury claim in the period the appellant worked for the respondent.
However, Dr Dixon’s uncontroverted evidence was that:
‘…The stresses and strains on the right upper extremity, left upper extremity, neck, back, left and right lower extremity due to the repetitive nature of his work as a shearer has led to acceleration of his right upper extremity, left upper extremity, neck, back, right lower extremity and left lower extremity [sic, injuries].
These injuries and the degenerative conditions are occupational diseases for shearers.’
This evidence was supported by the appellant’s statement of 12 October 2015 in which he described in detail the ‘heavy, arduous and dangerous work of a shearer’…”
In this case, there is evidence to support the proposition that the duties the applicant performed with all three respondents aggravated her disease condition. There is her evidence and that of A/Prof Ryan and Dr Stephenson..
The second respondent sought to impugn the applicant’s credit, but there was no evidence that refuted her account of the duties she performed as a midwife. I accept the applicant’s submission that the attack on her credit did not address the principal issue to be considered.
A/Prof Ryan opined that the applicant’s injuries arose as a result of her physical exertions at work, when employed as a midwife at Auburn, RNS, and Nepean. Her symptoms and condition related to the physical activities of her work.
Dr Stephenson opined that the injuries to the applicant’s shoulders and cervical spine were consistent with the nature and conditions of her work. All three injuries could be regarded as a disease of gradual process, which had been aggravated by her working conditions. Not only did he opine that employment was the main contributing factor to her injury, but he said there was no other explanation.
I have not found Dr Rimmer’s reports of assistance. When he first examined the applicant, he reported, not unreasonably, that he needed to see her investigations. However, without knowing what they showed, he diagnosed abnormal illness behaviour.
Dr Rimmer also initially opined that it was highly unlikely that the applicant’s injuries could be regarded as a disease, and highly unlikely her employment with Nepean could be regarded as the main contributing factor to it, without having recorded a history of the nature of her duties (although it may be accepted that he had some appreciation of what a midwife does), and without explaining his reasoning.
When he was provided with the investigations, Dr Rimmer diagnosed abnormal illness behaviour and four years post left C5/6 foraminotomy.
Dr Rimmer reported that the CT scan of the applicant’s cervical spine showed significant multilevel degenerative osteoarthritis. He did not believe the applicant had a “genuine injury”, that is he did not believe the nature and conditions of her work at Nepean were the main contributing factor to her disease. He accepted that the applicant had a disease, at least of her cervical spine.
In response to the question as to whether the applicant’s employment at Nepean was the main contributing factor to any aggravation of the disease, Dr Rimmer referred to his previous answer. He has not answered the question. The applicant’s employment may not have been the main contributing factor to the contraction of a disease, but it may still have been the main contributing factor to the aggravation of the disease.
Despite the applicant having undergone cervical surgery, Dr Rimmer assessed her as having no WPI. While he may have meant that she had no WPI as a result of an injury, he has not explained why he came to that conclusion. I do not accept his evidence.
Deputy President Snell discussed the application of s 4(b)(ii) in AV v AW[6] . After discussing the authorities, he said at [78]:
“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.”
[6] [2020] NSWWCCPD 9.
Having considered the evidence of the applicant about the nature of her employment with all three respondents, and the evidence of A/Prof Ryan and Dr Stephenson, which I prefer to that of Dr Rimmer, I am satisfied that the applicant’s employment with all three respondents was the main contributing factor to the aggravation of a disease of her cervical spine and left and right shoulders.
I do not accept that, because the onset of symptoms in the applicant’s neck was recorded as coming on after her hysterectomy, they were somehow related to that surgery. There is no medical evidence to support that proposition. While the applicant obviously bears the onus, the medical evidence before me would not allow that conclusion to be drawn.
While Dr Stephenson opined that the “predominant employer” was Auburn, s 16 of the 1987 Act provides for a deemed date of injury. It is deemed to have occurred either at the date of death or incapacity, or if death or incapacity has not resulted from the injury, the date the claim is made.
The last employer who employed the applicant in employment that was a substantial contributing factor to the aggravation of a disease was the second respondent.
The claim for WPI against the second and third respondents was made on 13 May 2022. The applicant makes no claim that death or incapacity resulted from the injury.
In Westpac Banking Corporation v Hungerford[7] , his Honour President Judge Keating referred to the decision of the Court of Appeal in SAS Trustee Corporation v O’Keefe[8]
[7] [2018] NSWWCCPD 50.
[8] [2011] NSWCA 326 (O’Keefe).
In O’Keefe, Handley AJA said at [101]:
“The cases establish that if the claim is for lump sum compensation any earlier claim for weekly compensation is irrelevant. Any injury by permanent impairment (s 16(3)) is deemed to have happened when the lump sum claim is made.”
In Gow v Patrick Stevedores No 2 Pty Limited[9], Geraghty J referred to a submission by counsel for the applicant that, in respect of a disease, there is no possibility of a delay, because the injury is deemed to have occurred when the claim is made. Counsel submitted that, in Gow, that was the deemed date of injury because there was no question of incapacity or death.
[9] [2002] NSWCC 60 (Gow).
Geraghty J said at [18]:
“This appears on first blush, to be a wonderfully mad submission. However, I think it is probably correct…when it comes to disease, it seems that because of the deeming provisions, no notice need be given, that a worker can leave work…be away for ten years, make a claim and find that he does not need to give the respondent notice.”
The third respondent referred me to Schutz, in which the arbitrator held that, in respect of the applicant’s claim for “nature and conditions” of employment, s 261 of the 1998 Act had no application, because the claim was made on the same date as the injury was deemed to have happened. She relied on the decisions in Gow and State Forests of New South Wales v Whittaker[10]. No criticism of this approach was made on appeal.
[10] [2007] NSWWCCPD 149.
As the deemed date of injury arising out or in the course of employment with the second and third respondents is 13 May 2022, I do not believe the issues of “notice” and “claim” arise. The applicant effectively gave notice of the injury and made the claim on the date of the injury. She complied with ss 254 and 261 of the 1998 Act.
I have determined as follows:
(a)    The applicant did not fail to give notice of injury or make a claim on either the second or third respondents, as required by ss 254 and 261 of the 1998 Act.
(b)    The applicant sustained injury to her right shoulder, cervical spine and consequential condition of her left shoulder on 1 November 2013, arising out of or in the course of her employment with the first respondent.
(c)    The applicant sustained injury to her right shoulder, cervical spine and left shoulder, deemed to have happened on 13 May 2022, consisting in the aggravation, acceleration, exacerbation, or deterioration of a disease, arising out of or in the course of her employment with the second respondent.
(d)    The applicant sustained injury to her right shoulder, cervical spine and left shoulder, deemed to have happened on 13 May 2022, consisting in the aggravation, acceleration, exacerbation or deterioration of a disease, arising out of or in the course of her employment with the third respondent.
(e)    The second respondent was the employer who last employed the applicant in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease.
The orders are set out in the Certificate of Determination.

[2023] NSWPIC 181

24 April 2023