Nestler v Australian Unity Home Care Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nestler v Australian Unity Home Care Services Pty Ltd [2021] NSWPIC 271
APPLICANT:	Tyrie Nestler
RESPONDENT:	Australian Unity Home Care Services Pty Ltd
MEMBER:	Rachel Homan
DATE OF DECISION:	3 August 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for weekly compensation, section 60 expenses and lump sum compensation pursuant to section 66 of the 1987 Act in respect of an accepted left shoulder injury and disputed consequential left knee condition; applicant returned to work in pre-injury duties following shoulder injury; work duties physically demanding; whether modification of the manner in which those duties were performed to protect injured shoulder resulted in left knee condition; whether claim for lump compensation properly made in the absence of a statement from the assessor that the knee condition had reached maximum medical improvement; Held- applicant sustained a consequential left knee condition; award for weekly compensation and section 60 expenses; Commission declined to make an order with respect to the section 66 claim as not validly made.
DETERMINATIONS MADE:	1. The applicant sustained a consequential condition at the left knee as a result of the injury to her left shoulder on 1 May 2019. 2. The applicant had no current capacity for work as a result of the injury on 1 May 2019 from 20 August 2020 to date and continuing. 3. The applicant has not made a valid claim for lump sum compensation in accordance with ss 281(2) and 282 of the Workplace Injury Management and Workers Compensation Act 1998.
ORDERS MADE:	1. The respondent to pay the applicant weekly compensation pursuant to s 36 (1) of the Workers Compensation Act 1987 at the rate of $359.75 per week for the balance of the first entitlement period. 2. After the first entitlement period, the respondent to pay the applicant weekly compensation pursuant to s 37(1)(a) of the Workers Compensation Act 1987 at the rate of $302.95 per week until 31 March 2021. 3. From 1 April 2021, the respondent to pay the applicant weekly compensation pursuant to s 37(1)(a) of the Workers Compensation Act 1987 to date and continuing in accordance with the applicant’s entitlements under the Act at the rate of $311.67 per week. 4. The parties have liberty to apply in respect of the above calculations. 5. The respondent to pay the applicant’s reasonably necessary s 60 expenses upon production of accounts, receipts and/or Medicare notice of charge. 6. The Commission declines to make any order with respect to the claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Ms Tyrie Nestler (the applicant) was employed as an in-home care worker by Australian Unity Home Care Services Pty Ltd (the respondent). On 1 May 2019, the applicant injured her left shoulder when she slipped on some water in a laundry at a client’s home.
Liability for the applicant’s left shoulder injury was accepted by the respondent’s insurer, Employers Mutual NSW Limited (the insurer), and after a period of five weeks off work, the applicant returned to her pre-injury duties in June 2019.
The applicant claims that following her return to work she modified her work practices to accommodate her left shoulder injury and, by doing so, sustained a consequential condition at her left knee. The applicant ceased employment on 19 August 2020 due to her left knee and shoulder symptoms.
On 16 October 2020, the respondent’s insurer disputed liability to pay weekly benefits and
s 60 expenses on the basis that the left knee condition did not result from the injury on 1 May 2019.
The applicant subsequently made a claim for a new injury with a deemed date of 20 August 2020. Australian Unity General Insurance Limited (the self insurer), was the insurer on risk for any injury of that date. On 8 December 2020, the self insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for an injury to the left shoulder and left knee. Any incapacity or need for treatment was said to result from the 1 May 2019 injury rather than any injury on 20 August 2020.
On 17 February 2021, a claim for lump sum compensation, weekly payments and s 60 expenses in respect of the 1 May 2019 injury was forwarded on behalf of the applicant.
On 6 May 2021, the insurer wrote to the applicant disputing that permanent impairment was capable of assessment. It was noted that the applicant’s permanent impairment assessor,
Dr James Bodel, had indicated that maximum medical improvement had not yet been reached.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Commission on 10 May 2021.
The applicant seeks lump sum compensation in reliance on the assessment by Dr Bodel, weekly compensation from 20 August 2020 to date and continuing and incurred s 60 expenses. The ARD identified both the injury on 1 May 2019 to the left shoulder with a consequential left knee condition as well as a disease injury with a deemed date of 20 August 2020.

PROCEDURE BEFORE THE COMMISSION

At the initial teleconference in these proceedings, directions were made amending the ARD to omit the claim in respect of a disease injury deemed to have occurred on 20 August 2020.
The parties appeared for conciliation conference and arbitration hearing on 26 July 2021. The applicant was represented by Mr William Carney of counsel instructed by Mr James Counter. The respondent was represented by Mr Phillip Perry of counsel, instructed by
Mr Doyle Miles. A representative from the insurer was also present.
Mr Perry noted that the claim for injury on 20 August 2020 had been discontinued. Mr Perry confirmed that his instructions did not come from the self insurer and that any submissions he made would not relate to the discontinued injury.
During the conciliation phase, the parties reached agreement that the applicant’s starting pre-injury average weekly earnings (PIAWE) figure for the 1 May 2019 injury was $372.51. That figure was subject to periodic indexation.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a)    whether the applicant sustained a consequential condition at her left knee as a result of the injury to her left shoulder on 1 May 2019;
(b)    the extent and quantification of any incapacity resulting from the injury on 1 May 2019 during the period of weekly compensation claimed;
(c)    the entitlement to s 60 expenses; and
(d) the entitlement to lump sum compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 9 July 2021; and

(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 20 July 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on 11 March 2020. The applicant stated that she commenced employment with the respondent in June 2018 as an in-home care worker. The applicant worked between 20 and 30 hours per fortnight. The applicant’s duties of employment were described as follows:
“(a)    Domestic Assistance: this would involve house cleaning duties such as mopping vacuuming, cleaning the bathrooms, making beds, cleaning skirting board around the house. Depending on who the client was I would also hang the washing out. Dusting.
(b)     Personal care: this would involve assisting the client with showering and helping the client with dress.
(c)     Shopping on behalf on the client whilst they would stay at home.
(d)     Driving the clients to medical appointments and assisting them from getting in and out of the vehicle.”
The applicant disclosed a previous injury to her left knee due to her involvement in track running in high school. The applicant had previously undergone an arthroscopy on her left knee.
The applicant described injury on 1 May 2019 whilst working at a client’s premises:
“I need to retrieve the cleaning material for the domestic services which required me to enter the Laundry.
When I opened the door, I could not see the water on the dark tiled floor.
When I walked in, my left leg went up in the air and I slipped backwards.
My left shoulder collided with the thin end of the door and a bunch of clothes from a laundry basket fell on top of me, as I inadvertently kick the laundry basket- trolley over with my left foot.”
The applicant reported the injury to her supervisor and filled out an incident report. The applicant did not immediately attend to treatment as she thought she had only suffered a bruise on her left shoulder.
On 3 May 2019, the applicant consulted her general practitioner, Dr Maniruzzaman, and was provided with a certificate of capacity. The applicant was referred for physiotherapy and underwent approximately five physiotherapy sessions with Fore Runner Physiotherapy.
On 24 May 2019, the applicant was referred for an ultrasound which revealed thickening at the subacromial subdeltoid bursa. The applicant was cleared to return to work in her pre-injury duties in June 2019.
The applicant was off work for a period of five weeks. Following her return to work, the applicant experienced significant difficulties using her left arm to wipe down showers and bathrooms. The applicant was often required to make beds and clean skirting boards. The applicant modified her work practices to accommodate the injury to her left shoulder by kneeling more. As a result, the applicant believed she had developed a consequential condition in her left knee. The applicant stated:
“(a)    Making Beds: Prior to my injury, I would use my shoulder to lift up the mattress so that I could pull the sheet out and tuck them in. After the subject, I would have to kneel, rest elbow on my left knee and use my left knee to support my left arm like at jack to lift up these mattresses so that I could remove the sheets.
(b)     Cleaning skirting boards: Prior to my injury, I would get on all four and crawl, whilst I would wipe the skirting board right hand. After the subject accident,. I was unable to put my body weight on my left arm, so when I was cleaning these skirting boards, so rather than getting down on all four, I elected to squat down on my knee and wipe the skirting boards, which put excessive stress on my left knee.
(c)     Drying and Dressing the Bottom half of client: Prior to the subject accident, when I was performing personal care. I would have to kneel on one leg and have my other leg propped up. I would put the client leg on top of my knee so that I could put on their shoes, pants of dry their legs. After the Subject, I could not us my left shoulder to put pressure to push the shoe or sock in a comfortable way for the client. I would have to get the patient to raise their foot in the air whilst I applied a shoe to their left foot. I would have to put most my weight on my left knee so that I could stabilise and balance myself to be able to take the weight of the patient's leg.”
The applicant said she began to notice the onset of symptoms in her left knee in or about July 2019. The applicant continued to work on normal duties and did not report the symptoms as she did not feel her supervisor would support her.
On 19 August 2020, the pain in the applicant’s knee got so bad that she could not continue to work. The applicant made a claim for compensation the next day.
On 30 August 2020, the applicant was admitted to Manning Base Hospital as her left knee had become extremely swollen and painful. The applicant could not move her knee or walk on it. The applicant was referred for an x-ray which did not reveal any damage. The applicant was provided with a prescription for Endone and discharged on crutches.
In September 2020, the applicant attended a consultation with Dr Maniruzzaman for the purposes of obtaining a referral for an MRI of her left knee. After that, the applicant did not continue to see Dr Maniruzzaman due to a personality clash and as he was unwilling to assist the applicant with her claim.
The applicant began consulting another general practitioner at the same practice, Dr Emily Kong Kam Wa. Dr Wa examined the applicant’s knee and provided her with Celebrex. The applicant subsequently put in a complaint against Dr Maniruzzaman after which Dr Wa advised she was no longer able to consult with the applicant.
The applicant then began to see Dr Osman who referred the applicant for a CT scan of her left shoulder and knee. The applicant subsequently underwent an ultrasound of the left shoulder which showed an anterior intrasubstance tear of the supraspinatus tendon and bursitis. The applicant was referred for an MRI but was not able to afford it.
The applicant described experiencing pain and restriction of movement in her left shoulder and left knee. The applicant was unable to lift her left arm above her head or move it behind her back. The applicant experienced a loss of strength in the left arm. The applicant was unable to bend her left leg and had difficulty leaning, putting weight on the left leg while walking for prolonged periods of time.

Treating medical evidence

On 9 May 2019, the applicant’s general practitioner, Dr M Maniruzzaman recorded a consultation in which the applicant described a fall at work on a slippery floor. The applicant landed on her left shoulder and now could not move it. The applicant was given a WorkCover certificate and referred for an x-ray and ultrasound of the left shoulder.
An ultrasound of the applicant’s left shoulder performed on 24 May 2019 was reported to show some slight thickening of the subacromial – subdeltoid bursa with some slight bunching at 30°.
On 28 May 2019, Dr Maniruzzaman recorded:
“Recent Xray and US of her left shoulder were fine. Pain is still there during lateral elevation of her left arm. 4/10 On exam/ Mild movement limitation in her left shoulder.”
The applicant was advised to continue with physiotherapy and avoid lateral elevation of the left arm. The applicant was given a final certificate for usual work from 3 June 2019.
Following her return to work, the applicant attended a number of consultations at the same practice with Dr Maniruzzaman or his colleague, Dr Emily Kong Kam Wa. The clinical records do not record any symptoms related to the applicant’s left shoulder.
On 20 August 2020, Dr Maniruzzaman recorded:
“Pain in left knee and left shoulder
H/O injury at work.
Was given a fitness certificate last year.
Did go back to work.
But developed left knee pain on the top of left shoulder pain.
Cant continue.
Wants another WC certificate.
Limping.
O/E
There is severe movement limitation in her left shoulder and left knee.
No local sign of inflammation.”
A WorkCover certificate issued by Dr Maniruzzaman on the same date, described an injury as “pain in left knee and shoulder H/O injury to left shoulder”. The date of injury was 1 May 2019. The applicant was certified as having no current work capacity for any employment.
An ambulance record dated 30 August 2020 described left knee pain and swelling for the past four weeks. The applicant could not recall any specific mechanism but symptoms had been increasing over time while at work. It was noted that the applicant was on workers compensation. The applicant’s left knee was observed to show obvious swelling, reduced mobility and the applicant was unable to weight bear.
Clinical records from the Manning Base Hospital noted complaints of ongoing pain at the left knee for one month. The applicant had been seen by her general practitioner who put her on NSAIDs with no effect. No scans have been done for the knee. The applicant’s old knee injury with arthroscopy 20 years ago was noted. There was noted to be no recent trauma.

An x-ray of the left knee performed at Manning Base Hospital on 30 August 2020 was reported to show a small joint effusion but no fracture or other abnormality. The clinical history given in the report was of “ongoing pain”.
The applicant was discharged from hospital with Endone and advised to follow-up with her general practitioner for further scans and orthopaedic referral.
On 1 September 2020, Dr Wa recorded a clinical note as follows:
“Presented to MBH for severe L knee pain --> Xray L knee NAD, given analgesia and advised to f/u with GP for further scan +/- ortho referral
Currently under WC for same with Dr Maniruzzaman
Has appt for CT scan and U/S of L knee and shoulder next week”
Dr Wa recorded a more detailed clinical note on 21 September 2020:
“-Wants to change doctor to manage WC
-Injury in May 2019 --> slipped on wet surface at work and fell onto left shoulder
-Xray and ultrasound of L shoulder: NAD at the time
-Went back to work as needed money
-Worsening L shoulder pain since
-Had to readjust position as unable to use L shoulder at work
-Reports developed L knee pain as a result
-Seen Dr Maniruzzaman for same on 20/8 --> referred for CT and u/s of R knee and R shoulder -Presented to ED on 30/8 due to worsening L knee pain--> Xray NAO
-Has been unable to work since the 20/8 due to pain
-On celebrex 100mg BD and paracetamol 4hrly”
On 3 November 2020, Dr Wa recorded a consultation as follows:
“1) Workcover
Reviewed emails sent from Australian Unity
1) Please advise if Tyrie Nestler attended the rooms for any treatment/advice to her left shoulder from June 2019 to August2020
-Yes she has seen Dr Maniruzzaman on 9/5/2020, 16/5/2020, 28/5/2020, 20/08/2020, 27/8/2020 for left shoulder pain
2) Please advise if Tyrie Nestler attended the rooms for any treatment to her left knee before August 2020 and the mechanism of injury as described at the time of the first consultation
-She was seen on 20/8/2020 by Dr Maniruzzaman for first time for left knee pain
3) Please advise why you consider the injury to the left knee is related to the shoulder injury that occurred in May 2019, noting a final clearance was issued for shoulder injury in June 2019”
The applicant first consulted Dr Osman Mohamed on 19 November 2020. Dr Mohamed’s notes recorded a left shoulder injury and left knee pain. A more detailed clinical record made on 20 November 2020 stated:
“- works with Australia unity: in- home care
- injury LT shoulder 01/05/2019 at work - went back to work with injured shoulder
- injury 20/08/2020 LT knee - slipped
when she was 18 had Lt knee arthroscopy: debris??
O/E
looks well
nil distress
walks with limp”
On 23 November 2020, Dr Mohamed recorded that an ultrasound of the applicant’s left shoulder showed an anterior intrasubstance tear of the supraspinatus. A CT scan of the left knee showed a small suprapatellar effusion. The applicant was noted to walk with an antalgic gait and to have decreased range of movement at the left shoulder.
Certificates of Capacity issued by Dr Mohamed have continued to certify the applicant as having no current work capacity.

Dr Bodel

The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr James Bodel, dated 3 February 2021.
Dr Bodel took a history of the injury to the applicant’s left shoulder on 1 May 2019. The applicant went back to work but her shoulder was never normal. The applicant reported that she modified the way in which she did work by squatting down more rather than bending and lifting with her arm. The applicant began to develop a gradual onset of left knee pain doing this activity. The applicant ceased work on 20 August 2020 due to the pain in the shoulder and knee.

Dr Bodel performed an examination via video. Dr Bodel observed restricted range of shoulder movement on the left side as well as clear evidence of generalised swelling in the region of the left knee. Dr Bodel was able to hear some audible crepitus on knee movement.
Dr Bodel observed that the ultrasound of the left shoulder on 24 November 2019 showed thickening of the subacromial and subdeltoid bursa with some slight bunching at 30°. This was said to be indicative of probable impingement in the left shoulder on abduction.
A plain x-ray of the left knee dated 30 August 2020 confirmed a small joint effusion but no fracture. The discharge referral from Manning Base Hospital indicated that the applicant had reported ongoing pain in the left knee for one month and a swollen left knee on presentation.

Dr Bodel agreed with the respondent’s medicolegal examiner, Dr Murray Hyde Page, that the applicant required an MRI scan of the left knee. Dr Hyde Page was uncertain how squatting and kneeling to try to protect the applicant’s left shoulder would have led to an injury to the left knee. Dr Bodel commented:
“I am satisfied however that the change in her work practices may well have caused some aggravation, acceleration, exacerbation and deterioration to an underlying disease process in the region of the left knee which is probable early arthritic change or possible tear of the medial meniscus and only an MRI scan will help to clarify that. I am satisfied that there is a casual link between her original injury to the left shoulder and the modified work practices after returning to work and the ongoing symptoms in the left knee which need further investigations and treatment.”
Asked to comment specifically on the cause of the applicant’s injury, Dr Bodel said the left shoulder injury was caused by the specific event on 1 May 2019. Further,
“I am satisfied that the "injury" to the left knee is probably an aggravation, acceleration, exacerbation and deterioration of an underlying disease process in that left knee caused by her altered gait pattern and increased kneeling and squatting that she undertook after her shoulder injury, when she returned to work.”
Dr Bodel agreed that the condition in the applicant’s left knee was a “consequential injury” resulting from the accident on 1 May 2019. Dr Bodel said:
“I am satisfied that she has probably altered her work practices following the injury to the left shoulder and that has led to the aggravation, acceleration, exacerbation and deterioration of the left knee.”
Dr Bodel expressed the opinion that the applicant had no capacity for work due to her shoulder and knee injuries. The applicant was totally unfit for work but had the potential to return to light duty work.
Asked whether the applicant’s injury or condition had reached maximum medical improvement as defined in the WorkCover Guidelines for the Evaluation of Permanent Impairment, Dr Bodel stated:
“The shoulder has probably reached a level of Maximal Medical Improvement but the knee has not as she has had no investigations or treatment in that area.”
Nonetheless, Dr Bodel made an assessment of permanent impairment. For the shoulder,
Dr Bodel assessed a 7% Whole Person Impairment (WPI). In regard to the left knee,
Dr Bodel considered that there was a rateable restriction of left knee movement seen clearly on the video link. This resulted in an 8% WPI. However, Dr Bodel stated:
“This is only a tentative assessment of the level of Whole Person Impairment in the knee as this lady has had no investigations or possible treatment and surgery is a possibility. Based on her current clinical presentation, however, she has the 8% Whole Person Impairment in this case.
This is a consequential injury and I would therefore indicate that the overall level of Whole Person Impairment is determined by combining that 8% for the left lower extremity with the 7% for the left upper extremity, which gives a 14% Whole Person Impairment overall.”
Dr Bodel, confirmed that the applicant had reached a level of maximum medical improvement for the left shoulder but
“probably not for the left knee and she does need investigations and treatment of the knee.”

Dr Hyde Page

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Murray Hyde Page, dated 11 November 2020.
Dr Hyde Page took a history of the injury to the applicant’s left shoulder on 1 May 2019. The applicant returned to her normal work in-home care and continued working despite ongoing pain and stiffness in her left shoulder. The applicant started to develop symptoms in her left knee at the end of June/early July 2020. The applicant attributed this to having to squat and kneel to make beds because she was favouring her left shoulder. The applicant also attributed the onset of left knee pain to having to do certain cleaning tasks such as cleaning tiles and skirtings where she would squat and kneel. The applicant could not recall any specific episode injuring her knee.
The applicant had ongoing pain and stiffness in her left shoulder and continued to have a stiff swollen and painful left knee. The combination of left shoulder and left knee symptoms made the applicant very restricted in her general mobility and activity.
Following an examination and review of the available investigations, Dr Hyde Page gave an opinion as follows:
“It would appear that Tyrie Nestler, who is 39 years of age, suffered an injury to her left shoulder in the course of her work on the 1 May 2019 and she had six weeks off work and some physiotherapy. It would appear that the left shoulder never settled down completely and she has developed chronic pain and stiffness in her left shoulder. She appears to have underlying subacromial bursitis and rotator cuff tendonitis. She kept working despite the ongoing left shoulder symptoms.
In her left knee, she developed symptoms in the middle of 2020 and the knee became progressively more painful, swollen and stiff.
She had to go off work on the 20 August 2020. due to the combination of her left shoulder and left knee symptoms. In her left knee, she now presents with a locked knee and clinically has an underlying large medial meniscus tear. Not surprisingly the CT scan of the left knee, as well as the xray, did not identify any underlying abnormality. She now needs an MRI scan.
A combination of her left shoulder and left knee means that she is completely unfit to return to her work in homecare.”

Dr Hyde Page said the left shoulder condition appeared to be related to the work injury on 1 May 2019. It did not appear to be a new injury. The applicant was adamant that the left shoulder never settled down when she went back to work in mid-2019 and pain and stiffness had been present ever since:
“Her left shoulder condition was injured when she had a fall on the 1 May 2019. Her present shoulder condition is a continuation of this original injury. It is partly responsible for her not being able to work since 20 August 2020. The other reason is her left knee, which I will comment on further in the report.”
With regard to the left knee, Dr Hyde Page diagnosed a locked left knee the most likely cause for which was an underlying large medial meniscus tear. The applicant had not been appropriately investigated for the left knee and now needed an MRI scan. With regard to causation, Dr Hyde Page stated:
“It is difficult to say exactly what brought on the locked left knee with swelling. muscle wasting and reduced function that has come on since the middle of 2020. She is adamant that she has not had any injury to her left knee away from work. She is adamant that the nature of her work, particularly some jobs where she has favoured her left shoulder. has predisposed her to developing the left knee condition. I am not in a position to decide either way.
All I can say is. she has developed a locked left knee in the last four or five months, where she is now quite incapacitated by her left knee condition.”
Asked whether the left knee condition had any connection to the left shoulder injury of May 2019, Dr Hyde Page responded:
“It is reasonable to say that because she was favouring her left shoulder, there was certain work activity that she relied more on squatting and kneeling so she could undertake the work. However, it is not clear that this is how she actually injured her left knee as she is not able to be specific about the onset of her left knee condition. As it appears to have come on over a period of weeks in the middle of 2020.”

Applicant’s submissions

Mr Carney identified the primary issue in dispute as whether the injury on 1 May 2019 had resulted in a consequential condition to the left knee. Referring to the applicant’s evidence as to her work duties, Mr Carney observed that the applicant’s work as an in-home care worker required her to perform duties such as cleaning, mopping, vacuuming, laundry, personal care, shopping and taking clients to medical appointments.

Mr Carney referred to the applicant’s evidence as to the injurious event on 1 May 2019. The injury was not a mere bump but involved the applicant slipping and falling backwards and hitting her shoulder.
The applicant had described her restrictions including, loss of strength and restriction of movement at the left shoulder as well as the restrictions in the left knee, including an inability to bend and numbness.
The applicant had attended physiotherapy and after a period of five weeks returned to work. Mr Carney noted that one of the features of the case was the lack of treatment.
The applicant returned to work on normal hours and duties but gave evidence that she had significant difficultly doing certain tasks including making beds. The applicant had to kneel and squat more and developed a consequential left knee condition. A very detailed account was given as to how the protecting of the left shoulder had resulted in the knee condition.
The knee symptoms commenced around July 2019 but the applicant continued to work on. In August 2020, the pain got so bad the applicant could not continue.
Mr Carney referred to the clinical record made by Dr Maniruzzaman on 20 August 2020. When the applicant changed doctors to Dr Wa, she gave a history of symptoms starting from May 2019. Mr Carney noted that this account was provided by the applicant to her treating doctor well before the applicant was required to account for the symptoms in a statement prepared with the assistance of her legal representative.
Mr Carney submitted that there was no indication that the knee was caused by anything other than the shielding or guarding of the left shoulder. The applicant’s normal duties were not responsible for the injury. Rather it was the way the applicant performed her duties as a result of the left shoulder injury
The pain continued in the applicant’s left shoulder as she continued her duties. The applicant gave a history to Dr Bodel that the shoulder was never normal when she returned to work. The applicant described modifying the way she worked. As a result, Dr Bodel accepted the history and accepted a consequential condition caused by altered gait and increased kneeling and squatting. Mr Carney submitted that it was not the applicant’s ordinary everyday work duties but rather the alteration in duties because of the left shoulder injury which caused the left knee condition.
Mr Carney said that Dr Hyde Page in effect agreed with Dr Bodel. Dr Hyde Page accepted an overuse of the left knee and considered that further investigation required. Dr Hyde Page also found that the applicant was totally incapacitated by both the shoulder and left knee injuries.
Mr Carney submitted that there was a consequential left knee condition. There would be no doubt that the guarding of the left shoulder injury caused the problems with the applicant’s left knee. Both conditions were contributing to the applicant’s present incapacity to work.
With regard to the issue of whether a claim for lump sum compensation had been duly made for the purposes of s 66 of the 1987 Act, Mr Carney accepted that Part 8 of the Guidelines made clear that an impairment assessor must depose that the injury has reached maximum medical improvement. Having regard to Dr Bodel’s assessment, Mr Carney submitted that he used restriction of movement as a method of determining WPI of the left knee. Dr Bodel found a rateable impairment which converted to 8% WPI impairment. Dr Bodel said that this was only a tentative assessment as there had been no investigations or treatment and surgery was a possibility. The applicant’s current impairment was, however, 8%.
Mr Carney submitted that there was no evidence that any further treatment was currently proposed for the applicant’s left knee. The surgery or further treatment foreshadowed were only possibilities. No doctor had proposed anything other than scans of the left knee. In the absence of any further treatment or proposed surgery, Dr Bodel’s assessment was a proper assessment of permanent impairment.
Mr Carney submitted that there was a proper permanent impairment assessment and given the medical dispute, the left knee could be referred to a Medical Assessor. Without any concrete proposal for surgery, Dr Bodel had provided an assessment for the purposes of the Guidelines.

Respondent’s submissions

Mr Perry submitted that the applicant had properly conceded that a claim for s 66 compensation must annexe an assessment that deposes that the injury has achieved maximum medical improvement. This requirement in the Guidelines drew upon the provisions in s 281 of the 1998 Act, which required that a claim for lump sum compensation must provide relevant particulars. The claim must be accompanied by a report by a permanent impairment assessor providing an assessment of the body systems. That assessment must include a statement as to maximum medical improvement. In the absence of such a statement, the claim for lump sum compensation did not comply with the Guidelines.

Dr Bodel gave the opinion that the applicant had probably not reached maximum medical improvement for the left knee and required further investigation. Dr Bodel did not say that he was satisfied that the applicant was not going to undertake any surgery or further treatment and was therefore now at maximum medical improvement. There was no evidence from the applicant saying she did not plan to undertake any further treatment including surgery. The claim for lump sum compensation under s 66 was clearly premature.
Turning to the left knee condition, Mr Perry submitted that the requisite causal connection was not made out. It was necessary for the applicant to establish that the left shoulder injury had materially contributed to the applicant’s left knee condition, referring to Murphy v Allity Management Services Pty Ltd[1].
[1] [2015] NSWWCCPD 49.
Mr Perry referred also to the decision in Sutherland v Baltica[2] which referred to the judgement of Deane J in March v Stramare (E & MH) Pty Ltd[3]. Mr Perry submitted that a proper analysis of the facts was required to determine how the event on 1 May 2019 could explain the current presentation of the applicant’s left knee.
[2] [1996] 12 NSWCCR.
[3] [1991] HCA 12.
The applicant was an in-home caregiver and those duties had the potential to cause strain and impairment of the knee. Squatting and kneeling were ordinary parts of the applicant’s duties as an in-home carer. Dr Hyde Page did not agree with Dr Bodel, and specifically departed on the critical question of causation, saying he could not “make a connection”.
Mr Perry noted that Dr Wa was asked by the self insurer to advise why she considered the injury to the left knee was related to the shoulder injury that occurred in May 2019, noting a final clearance had been issued for shoulder injury in June 2019. Dr Wa did not appear to have provided any response.
Mr Perry submitted that cleaning bathrooms and skirting boards and performing personal care were normal parts of the applicant’s duties. The applicant’s own evidence confirmed the manner in which the work was done and the involvement of her knee. Mr Perry submitted that it did not require a vivid imagination to accept that the pre-injury duties included the type of activities inculpated by Dr Bodel. If the shoulder injury had not occurred, there would be no issue that this kind of work played a significant role in causing an aggravation or exacerbation of the knee.
Mr Perry submitted that Dr Bodel had not explained that the applicant would not have come to this condition if it were not for the shoulder injury. Mr Perry noted that the applicant thought initially that she might just have bumped the left shoulder. No significant pathology was caused in the injurious event. There was a painful shoulder but no pathology was identified.
Dr Maniruzzaman’s clinical records showed that there was no fracture revealed on x-ray and no evidence of any other abnormality. The ultrasound was also “fine”. The applicant described pain rated at 4/10 and “mild” movement limitation. The applicant was given a certificate to return to her usual work on 3 June 2019.
Following the applicant’s return to work, Mr Perry noted that the applicant had attended multiple consultations with Dr Maniruzzaman with no further reference to shoulder symptoms. There was no evidence to suggest a material contribution from the shoulder. Rather, the evidence suggested a material contribution from the applicant’s work duties. The applicant’s pre-injury duties were the type of work that could bring on the knee condition. The applicant was required to demonstrate that there was a material contribution from the left shoulder injury. That analysis was not present in the report from Dr Bodel or the general practitioner.
Mr Perry described the proposition that somehow work became provocative of the knee condition when it was not before as “tortured” and inconsistent with common sense. There was ample kneeling and squatting in the pre-injury duties. No analysis of what was different following the shoulder injury had been provided. No explanation of the mechanics or the pressure applied to the knee that was not there before was provided by Dr Bodel. Much more detailed evidence than had been provided was required. The applicant had not discharged the relevant onus.
Although there was an accepted injury to the left shoulder, continuing pain in the left shoulder was not described in multiple consultations in the preceding 14 months. A CT scan performed on 28 October 2020 showed normal pathology in the left shoulder.
Mr Perry submitted that any further symptoms in the left shoulder may be due to the ongoing pre-injury duties. Mr Perry queried whether the applicant’s current shoulder symptoms were now due to the injurious event on 1 May 2019.
Mr Perry submitted that it was unclear whether the applicant could return to normal duties having regard to the shoulder only. Without the knee injury, Mr Perry submitted that nothing would prevent the applicant from engaging in suitable employment.
Mr Perry conceded that if the applicant was found to have a consequential left knee condition, based on Dr Hyde Page’s opinion the applicant did not have the capacity to work.
Mr Perry submitted that the applicant had not been paid weekly compensation since 20 August 2020. The applicant was paid three weeks of weekly compensation in 2019 such that 10 weeks remained in the first entitlement pursuant to s 36.

Applicant’s submissions in reply

Mr Carney submitted that the relevant test for causation was that in Kooragang Cement Pty Ltd v Bates[4]. A commonsense test applied and March v Stramare (E & MH) Pty Ltd[5] should not be relied on in these proceedings.
[4] (1994) 10 NSWCCR 796 at [810].
[5] [1991] HCA 12 (at [5]).
Dr Bodel did not say that normal squatting was the cause of the left knee injury. Rather it was the modified way of doing work including squatting more, which had caused the left knee pain.
Mr Carney submitted that the applicant’s description of the way in which she modified the manner in which she performed her usual duties should be read carefully. Dr Hyde Page’s opinion was at best equivocal.

FINDINGS AND REASONS

Consequential condition

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i)      a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)     the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, 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.”

It has been accepted by the respondent that the applicant sustained an “injury” to her left shoulder on 1 May 2019. What requires determination is whether the applicant has sustained a consequential left knee condition as a result of the injury.

It is not necessary for the applicant to establish that the left knee condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[6] observed at [45]-[46]:

“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”

[6] [2009] NSWWCCPD 134.

In Bouchmouni v Bakhos Matta t/as Western Red Services[7], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[7] [2013] NSWWCCPD 4.

A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[8], where Kirby P said at [461] (Sheller and Powell JJA agreeing):

“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
[8] (1994) 10 NSWCCR 796 at [810].

His Honour said at [463]-[464]:

“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

In March v Stramare (E & MH) Pty Ltd[9] Mason CJ said of causation:
“It has often been said that the legal concept of causation differs from philosophical and scientific notions of causation. That is because ‘questions of cause and consequence are not the same for law as for philosophy and science’, as Windeyer J. pointed out in The National Insurance Co. of New Zealand Ltd. v. Espagne [1961] HCA 15; (1961) 105 CLR 569, at p 591. In philosophy and science, the concept of causation has been developed in the context of explaining phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence. The law does not accept John Stuart Mill's definition of cause as the sum of the conditions which are jointly sufficient to produce it. Thus, at law, a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage: see McLean v. Bell (1932) 147 LT 262, per Lord Wright at p 264; Sherman v. Nymboida Collieries Pty. Ltd. (1963) 109 CLR 580, per Windeyer J. at pp 590- 591.”
[9] [1991] HCA 12 (at [5]).
A useful starting point in considering whether the applicant has sustained a consequential left knee condition is to consider the nature of the injury to the applicant’s left shoulder.
The respondent submitted that there was no significant pathology caused in the injurious event to the applicant’s left shoulder. Although the shoulder was painful, investigations revealed no evidence of any abnormality. Particular attention was drawn to
Dr Maniruzzaman’s comment in a clinical record of 28 May 2019 that the left shoulder was “fine”.
The report of the ultrasound performed on 24 May 2019 in evidence before me does, however, show some pathology in the form of slight thickening of the subacromial – subdeltoid bursa with some slight bunching at 30°.
Similarly, although Dr Maniruzzaman certified the applicant as fit for pre-injury duties from 3 June 2019, his records do show that the applicant was still experiencing pain during lateral elevation of her arm. The applicant’s pain was rated 4/10. The applicant also had mild movement limitation in the left shoulder. The applicant was advised to continue with physiotherapy and avoid lateral elevation of the arm.
The applicant has given a history of the left shoulder never fully recovering to both treating doctors and the two medicolegal experts. Dr Wa recorded that the applicant returned to work following the left shoulder injury as she needed money but had experienced worsening left shoulder pain since. Dr Mohamed also recorded in his clinical record on 20 November 2020 that the applicant went to back to work with an injured shoulder. Dr Bodel took a history of the applicant returning to work but the shoulder “was never normal.” Dr Hyde Page also took a history that the applicant continued to work despite ongoing pain and stiffness in the left shoulder.
Although the applicant did not seek further treatment in relation to the left shoulder from
Dr Maniruzzaman in the period that followed, I am satisfied, based on the contemporaneous clinical record of 28 May 2019 and the consistent subsequent histories, that the applicant continued to experience left shoulder symptoms and restrictions as a result of the 1 May 2019 injury notwithstanding her return to pre-injury duties.
It was suggested in the respondent’s submissions that the current symptoms in the applicant’s left shoulder, which appear to have deteriorated, may be the result of the performance of the applicant’s pre-injury duties. The respondent’s own medicolegal expert, however, has given a clear opinion that the current condition in the applicant’s left shoulder is a continuation of the original injury on 1 May 2019. Dr Hyde Page noted that the left shoulder never settled down completely and the applicant had developed chronic pain and stiffness. The applicant kept working despite the ongoing left shoulder symptoms. A similar opinion is provided by Dr Bodel.
Accepting, as I do, that the applicant’s left shoulder injury remained symptomatic, it is necessary to consider how the current symptoms and restrictions in the applicant’s left knee could have resulted from the left shoulder injury. In this regard, there is no dispute between the parties that the applicant now has a medical condition at the left knee. A precise diagnosis of that condition has not been possible as the applicant has not been able to afford further radiological investigation of the left knee. Dr Bodel and Dr Hyde Page have suggested that there is a possible tear of the medial meniscus or early arthritic change. Although the applicant has disclosed a previous injury to the left knee requiring arthroscopy, there is nothing in the evidence before me to suggest that the applicant’s left knee remained symptomatic in the 20 years that followed or at least at the time of the left shoulder injury.
The applicant has provided a detailed description of how she says that her performance of her pre-injury duties was modified to accommodate or protect the injured left shoulder. Although there can be no doubt that the applicant’s pre-injury duties were physical and capable of placing strain on the applicant’s knees, there is no evidence that the applicant’s knee had become symptomatic at any time prior to the injurious event on 1 May 2019.
The applicant has given evidence that prior to the shoulder injury she would have used her shoulder to lift up mattresses when making beds. After the injury, the applicant would kneel, and rest her elbow on her left knee and use her left knee to support her left arm like a jack in order to lift up mattresses and remove sheets.
Additionally, the applicant stated that she would crawl on all fours whilst wiping skirting boards with her right hand prior to the injury. After the injury, the applicant was unable to put any body weight on her left arm so rather than getting down on all fours she would squat on her knees to wipe the skirting boards, placing excessive stress on the left knee.
The applicant stated that she also experienced difficulties using her left shoulder to apply pressure to put shoes and socks on her patients. After the injury, the applicant would place additional weight on her left knee in order to stabilise and balance herself whilst taking the weight of the patient’s leg. The applicant’s evidence suggested that she also experienced difficulties wiping down showers and bathrooms.
That the applicant attributed her knee symptoms to an increase in squatting and kneeling following the left shoulder injury is evident from her initial reports of symptoms to her treating doctors. From 20 August 2020, the applicant’s left knee pain was associated with the left shoulder injury. The initial WorkCover certificate issued on 20 August 2020 attributed symptoms in both body parts to the injury on 1 May 2019.
That there was a gradual onset of symptoms and no specific mechanism of injury to the left knee is confirmed in the ambulance records and the records from Manning Base Hospital.
The clinical record of Dr Wa dated 21 September 2020 noted the injury and symptoms at the applicant’s left shoulder and that the applicant had to readjust her positions as she was unable to use the left shoulder at work. The applicant reported that she had developed left knee pain as a result of this. As noted by Mr Perry, however, Dr Wa did not provide an opinion as to how the left knee was related to the shoulder injury in May 2019 in responding to questions from the self insurer.
The same history of having modified the way in she worked to accommodate the left shoulder was provided to Dr Bodel and Dr Hyde Page. The applicant reported to Dr Bodel that she modified the way she worked by squatting down more rather than bending and lifting with the arm. Dr Bodel said he was satisfied that the change in the applicant’s work practices may well have caused an aggravation, acceleration or exacerbation of a disease process at the left knee. Dr Bodel was satisfied that there was a causal link between the original injury to the left shoulder, the modified work practices and the symptoms at the applicant’s left knee.
Dr Hyde Page has given an opinion that it was reasonable to say that because she was favouring her left shoulder, there were certain work activities in which the applicant relied more on squatting and kneeling. Dr Hyde Page, declined, however, to give an opinion that the left knee condition was causally related to the left shoulder. Dr Hyde Page said it was not clear how the applicant actually injured her left knee as the applicant was not able to be specific about the onset of the knee condition.
Importantly, Dr Hyde Page has not expressed any opinion that it was not plausible or possible for the applicant’s left knee condition to have been caused by the additional squatting and kneeling on which the applicant relied to undertake her work following the left shoulder injury. Dr Hyde Page has not suggested any alternative cause for the condition. He has simply declined to provide an opinion on causation.
This analysis of the evidence indicates that the applicant’s left shoulder remained symptomatic despite her return to pre-injury duties in June 2019. The left shoulder progressively became worse. The applicant has consistently reported to her treating doctors and the medicolegal experts that she modified the way in which she performed her pre-injury duties by performing additional kneeling and squatting in order to accommodate the injured left shoulder. The applicant has provided a detailed description of the particular way in which the applicant modified her work duties by placing additional strain or weight through her left knee in order to perform tasks such as making beds, cleaning skirting boards and dressing patients.
Although it is plausible that the general performance of the applicant’s pre-injury duties may have contributed to the applicant’s left knee condition, there is no medical opinion before me to indicate that this was the case. As indicated above, the applicant worked in the same role for around 11 months prior to the frank left shoulder injury. There is no indication that the applicant’s knee was symptomatic prior to the left shoulder injury. I am not satisfied that the symptoms and restrictions in the applicant’s knee would have resulted from the performance of the applicant’s pre-injury duties, had it not been for the left shoulder injury.[10]
[10] See, for example, Andersen v J & M Predl Pty Limited [2018] NSWWCCPD 40.
I accept that Dr Wa and Dr Hyde Page have not been able to provide a causal explanation for the left knee condition. I do not read their evidence as providing any support for the opinion expressed by Dr Bodel. It is possible that Dr Wa and Dr Hyde Page’s inability to explain the cause of the left knee condition was due in part to the hitherto inadequate radiological investigation of the left knee symptoms. Nonetheless, neither Dr Wa nor Dr Hyde Page nor any other doctor involved in the applicant’s care has expressed an opinion which contradicts the opinion given by Dr Bodel.
I am satisfied that Dr Bodel had a sufficiently complete and accurate history so as to provide a proper factual foundation for the expression of his opinion. Although there is some conflation between the legal test for establishing an injury pursuant to s 4(b)(ii), and that required to establish causation for a consequential condition in his report, I am satisfied that reading Dr Bodel’s report as a whole he has expressed a clear opinion that the left knee condition has resulted from the left shoulder injury.
To the extent that other aspects of the applicant’s ordinary pre-injury duties may have contributed to the left knee condition, I note that it is well established in the case law that a condition can result from multiple causes. Mr Perry has referred in this regard to the authority in Murphy v Allity Management Services Pty Ltd[11]. Having regard to Dr Bodel’s uncontradicted medicolegal opinion, which is broadly supported, in my view, by the evidence as a whole, I am satisfied that the left shoulder injury has materially contributed to the left knee condition.
[11] [2015] NSWWCCPD 49.
For the reasons given above, I am satisfied that the applicant has sustained a consequential left knee condition as a result of the injury to her left shoulder on 1 May 2019.

Extent and quantification of incapacity

There is no dispute between the parties that if the applicant’s left knee condition is consequential to the left shoulder injury that the applicant has, and has had since 20 August 2020, no current capacity for work as a result of the injury on 1 May 2019. This is an opinion given by both Dr Bodel and Dr Hyde Page and the doctors who have issued Certificates of Capacity since that date.
The applicant’s starting PIAWE figure for the 1 May 2019 injury has been agreed at $372.51. That figure is subject to periodic indexation pursuant to s 82A of the 1987 Act on 1 April and 1 October of each calendar year. There is no evidence of any non pecuniary benefits being provided to the applicant for the purpose of calculating the entitlement to weekly payments. It has also been agreed that there are 10 weeks remaining in the first entitlement period pursuant to s 36 of the 1987 Act.
I am satisfied, as a result, that there should be an order that the respondent is to pay the applicant weekly compensation pursuant to s 36 (1) of the 1987 Act as it applies in this case at the rate of $359.75 per week (being 95% of the PIAWE as indexed) for the balance of the first entitlement period.
After the first entitlement period, there will be an order to the respondent to pay the applicant weekly compensation pursuant to s 37(1)(a) at the rate of $302.95 per week (being 80% of the PIAWE as indexed) until 31 March 2021.
From 1 April 2021, when the PIAWE is indexed again, the respondent is to pay weekly compensation pursuant to s 37(1)(a) to date and continuing in accordance with the applicant’s entitlements under the 1987 Act at the rate of $311.67 per week.

The parties will have liberty to apply in respect of these calculations.

Entitlement to s 60 expenses

The applicant has claimed incurred s 60 expenses in the amount of $500.08 for treatment provided by Manning Base Hospital. No dispute has been raised as to the entitlement to those expenses separate to the issue of whether there is a consequential left knee condition.
Having regard to the findings above, I am satisfied that there should be an order that the respondent is to pay the applicant’s reasonably necessary expenses, including the amount claimed in these proceedings, in accordance with s 60 of the 1987 Act, upon production of accounts, receipts and/or valid Medicare notice of charge.

Entitlement to lump sum compensation

There is a dispute between the parties as to whether a claim for lump sum compensation pursuant to s 66 of the 1987 Act has been properly made upon the respondent.
Section 281 of the 1998 Act requires an employer to determine a claim for lump sum compensation within one month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by a medical assessor; or within two months after the claimant has provided to the insurer all relevant particulars about the claim, whichever is the later.

Section 282 of the 1998 Act defines the “relevant particulars about a claim” as including matters as required by the Workers Compensation Guidelines. The Guidelines for Claiming Workers Compensation in effect from 1 August 2016 onwards, provide in respect of a claim for lump sum compensation for permanent impairment, that for the purposes of s 282 of the 1998 Act, the claim must include:
“… a report from a permanent impairment assessor listed on the SIRA website, as trained in the assessment of the part or body system being assessed. The report must include:
·a statement that the condition has reached maximum medical improvement”
The applicant has relied upon an assessment of permanent impairment by Dr Bodel. Although Dr Bodel has stated that the applicant’s left shoulder injury has received maximum medical improvement, his report indicates that the left knee condition had probably not reached maximum medical improvement.
Although Dr Bodel has proceeded to assess the degree of permanent impairment resulting from the injury on 1 May 2019, he has not anywhere in his assessment provided the statement required by the Guidelines that the left knee condition has reached maximum medical improvement.
The applicant has submitted that it should be inferred that the condition has reached maximum medical improvement in the absence of any current proposal for surgery or further treatment. There is, however, no indication in the applicant’s evidence that she does not intend to seek further treatment of her left knee condition. Rather, the medical evidence suggests that the condition has not been fully investigated or treated further due to lack of funding. I am not satisfied that the inference suggested by the applicant is appropriate.
Although the factual circumstances were different to those in the present case, the requirement to make a claim in accordance with s 282 of the 1998 Act and the Guidelines was noted in Abou-Haidar v Consolidated Wire Pty Ltd[12], where Roche DP commented at [55]:
“A worker must make a claim under s 282 and support that claim with a whole person impairment assessment in the proper form from a WorkCover trained assessor. If the assessment is the same as in a previous award or order of the Commission, there will be no basis for referral to an AMS. If the assessment is higher than in a previous award or order, then, assuming that there are no liability issues in dispute, the Registrar will refer the matter to an AMS for further assessment.”
[12] [2010] NSWWCCPD 128.
In all the circumstances, I am not satisfied that the applicant made a claim for lump sum compensation in respect of the left knee in accordance with s 282 of the 1998 Act. The assessment of permanent impairment in the left shoulder did not exceed the 10% threshold required by s 66(1) and was not, therefore, a valid claim capable of payment[13].
[13] See Woolworths v Stafford [2015] NSWWCCPD 36 at [66].
The claim was not required to be determined in accordance with s 281(2) of the 1998 Act. For the purposes of s 289 of the 1998 Act, the insurer has not disputed liability for the claim or failed to determine the claim as and when required by the 1998 Act. As a consequence, no dispute regarding the claim can be referred for determination by the Commission.
I therefore decline to make any orders with respect to the claim for lump sum compensation pursuant to s 66 of the 1987 Act.

[2021] NSWPIC 271

3 August 2021