Ngo v Philip Leong Stores Pty Ltd
[2024] NSWPIC 710
•18 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ngo v Philip Leong Stores Pty Ltd [2024] NSWPIC 710 |
| APPLICANT: | Phi Ngo |
| RESPONDENT: | Philip Leong Stores Pty Ltd |
| MEMBER: | Karen Garner |
| DATE OF DECISION: | 18 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; accepted injury to the applicant’s back, right shoulder and right knee due to the nature and conditions of his employment, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which his employment with the respondent was the main contributing factor pursuant to section 4(b)(i); claim for permanent impairment lump sum compensation under section 66, weekly compensation pursuant to sections 33 and 38, and medical and related expenses pursuant to section 60; whether the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(i); whether the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(ii); Held – the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(i); the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to section 4(b)(ii); general order for medical and related expenses pursuant to section 60; matter referred to approved medical specialist for assessment of whole person impairment; after issue of a Medical Assessment Certificate, matter to be relisted for conference to address the issue of weekly compensation. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (1987 Act). 2. The applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act. The Commission orders: 3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 7 July 2021 (deemed) Body parts: right upper extremity (shoulder); right lower extremity (knee); lumbar spine, and cervical spine. Method: whole person impairment. 4. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Wages Schedule lodged by the worker. 5. The respondent is to pay the applicant’s medical and related expenses pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge. 6. After the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference before me to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation. |
STATEMENT OF REASONS
BACKGROUND
Phi Ngo (the applicant), currently aged 55 years, was employed as a pick packer and forklift driver by Philip Leong Stores Pty Ltd (the respondent) from October 2011 to July 2021.
By letter dated 14 July 2021, the respondent’s insurer stated that it had accepted provisional payments of weekly compensation, commencing from 7 July 2021, in relation to a claim for workers compensation by the applicant for injury being right knee aggravation, lumbar spine strain, left hip aggravation, bilateral shoulder strain and cervical spine strain.
By Certificate of Determination – Consent Orders issued on 1 June 2022, the Personal Injury Commission (Commission) determined by consent of the parties that: claims with respect to the applicant’s cervical spine and left knee were discontinued; there was an award for the respondent with respect to the left hip; the respondent pay the reasonably necessary expenses of and incidental to the right shoulder rotator cuff repair surgery proposed by
Dr Chen pursuant to s 60 of the 1987 Act; the respondent pay reasonably necessary expenses in respect of the right shoulder, right knee and lumbar spine up to $3,000 pursuant to s 60 of the 1987 Act; the respondent pay the applicant weekly compensation pursuant to ss 36 and 37 of the 1987 Act.By letter dated 30 June 2023, the respondent’s insurer advised that it approved rehabilitation services to support the applicant’s recovery.
By letter dated 17 May 2024, the rehabilitation management consultant advised that in a case conference with the applicant and his nominated treating doctor, Dr Taslima Sultana, the applicant reported ongoing pain in his right knee, lower back, left hip, cervical, and bilateral shoulders, with the left shoulder exhibiting more severe and aggravated pain. It noted that the applicant underwent a left shoulder MRI on 10 May 2024, which revealed acromioclavicular osteoarthritis, infraspinatus and subscapularis tendinopathy with a small intra substance insertional tear, as well as a posterior superior labral tear. It reported that a left shoulder injury has been added to the applicant’s certificate of capacity because
Dr Sultana expressed the opinion that the applicant’s left shoulder injury was work-related, stemming from overuse and reliance on the left shoulder following his right shoulder injury at work.By letter dated 4 June 2024, the applicant made a claim for permanent impairment compensation pursuant to s 66 of the 1987 Act in the amount of $57,210 in accordance with the medical assessment and reports of Dr Bodel dated 28 May 2024.
By notice dated 25 July 2024, issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the respondent’s insurer denied liability for worker’s compensation in respect of the applicant’s cervical spine on the grounds that it disputed that the requirements of ss 4, 9A, 4(b), 4(b)(ii), 33 and 66 of the 1987 Act were satisfied. The insurer disputed that a cervical spine injury could be aggregated with injuries to the applicant’s lower back, right shoulder and right knee pursuant to ss 322(2) and (3) of the 1998 Act.
By notice dated 18 December 2023, the insurer issued a work capacity decision pursuant to s 43(1) of the 1987 Act to the effect that: the applicant had current capacity to work eight hours per week; suitable employment had not been identified; the applicant had ability to earn $0 per week in suitable income and the applicant’s pre-injury average weekly earnings (PIAWE) was $1,950; the applicant was entitled to weekly compensation of $1,560 per week, effective from 1 January 2024, and would continue to receive such weekly compensation; and the applicant continued to be entitled to claim reasonably necessary treatment, services or assistance in accordance with ss 59A(2) and 60 of the 1987 Act.
By notice dated 19 November 2024, issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision issued on 25 July 2024.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The applicant initiated these proceedings by an Application to Resolve a Dispute (ARD) filed on 28 October 2024. A Reply to the ARD (Reply) was filed on 19 November 2024.
At a conciliation/arbitration hearing, conducted by MS Teams on 17 December 2024,
Mr Craig Tanner, counsel, appeared for the applicant, instructed by Turner Freeman Lawyers. Mr Tom Grimes, counsel, appeared for the respondent, instructed by BBW Lawyers.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
At the conciliation/arbitration hearing, counsel agreed, on behalf of their respective clients that:
(a) the ARD is amended (and I so direct):
(i)to include a claim pursuant to s 60 of the 1987 Act, with effect that the applicant now seeks a general order for medical expenses;
(b) the applicant only presses injury pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act, and does not press injury pursuant to ss 4(a) and 9A of the 1987 Act, and
(c) the applicant sustained injury to his back, right shoulder and right knee due to the nature and conditions of his employment, with a deemed date of injury of
7 July 2021, in the nature of a disease, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(i) of the 1987 Act.The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(i) of the 1987 Act;
(b) whether the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act;
(c) the extent and quantification of the applicant’s entitlements to payment of:
(i)weekly compensation, pursuant to ss 33 and 38 of the 1987 Act;
(ii)medical and related expenses, pursuant to s 60 of the 1987 Act, and
(iii)permanent impairment compensation, pursuant to s 66 of the 1987 Act.
The parties agree that determination of the applicant’s entitlement to weekly compensation should be delayed until the applicant’s WPI is assessed by a Medical Assessor.
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, and
(c) Wages Schedule filed on behalf of the applicant.
Oral evidence
No application for cross-examination was made and no oral evidence was given.
Applicant’s evidence
The applicant gave evidence by way of two written statements. In summary, the applicant stated:
(a) the applicant worked for the respondent as a pick packer and forklift driver from October 2011 to July 2021, initially on a casual basis and then on a full-time basis in 2013 working approximately seven to eight hours a day with limited assistance and breaks;
(b) the applicant was required to work quickly to meet difficult and unrealistic targets. The applicant’s role was quite strenuous and labour intensive and included repetitive and continuous heavy lifting, packing, pushing and the manoeuvring of heavy stock. The applicant was required to pick approximately 130 boxes of wine and spirits per hour, each weighing up to approximately 15 to 20kg each. The applicant was required to lift heavy items which at times were placed in awkward positions such as at the back of a pallet;
(c) the applicant was also required to perform a significant amount of forklift work which required him to constantly look up to place pallets located up to 7 to 8m high. The applicant was required to position his neck in awkward positions for a prolonged time. The applicant drove a forklift in reverse looking over his right shoulder with his left arm on a spinner knob on the steering wheel which placed a great deal of strain on his neck and shoulder girdle region. Over time, the applicant developed a gradual onset of pain, discomfort and stiffness in his neck and shoulders, particularly in the right side of his neck and shoulder;
(d) because of the nature and condition of his role, from about 2013, the applicant developed a gradual onset of pain and discomfort in his lower back, left hip, right shoulder and bilateral knees, which steadily worsened over time. The applicant stated that he did not initially lodge a workers compensation claim because he was fearful of threatening his job security;
(e) in 2015, the applicant consulted general practitioner, Dr Hong Huynah in relation to the pain in his left hip and, on 25 June 2015, the applicant underwent a hip replacement under the hand of Professor Warwick Bruce and returned to normal duties about six weeks after the surgery;
(f) in 2017, the applicant sustained a right knee injury at work and returned to normal duties about four or five months after that injury;
(g) over time, the applicant’s duties became more strenuous as the site became busier. The applicant was required to work only four days per week and he was rotated between forklift driving and loading duties, undertaking two loading shifts and two forklift shifts per week. However, the applicant’s work also became increasingly strenuous as the applicant became busier;
(h) in or around 2017 or 2018, the applicant reported his neck and right shoulder injury to the site manager. The applicant underwent physiotherapy between late 2017 and 2018 provided by the respondent, which provided very little to no relief of the applicant’s symptoms;
(i) the applicant was still required to undergo the same duties without any modifications to his role, which included both picking duties and forklift work. As a result, the pain in the applicant’s lower back, neck, bilateral knees and bilateral shoulders deteriorated further. The applicant also experienced increasing lower back pain due to the nature and conditions of his picking and packing role;
(j) in May 2021, the applicant again reported his injury to a team leader, however, he was ignored, unsupported and required to continue working;
(k) although his condition continued to worsen, the applicant continued to work until July 2021 when reached the applicant reached breaking point when the applicant was in such significant pain and discomfort that he struggled to attend his duties both at work and at home. The applicant consulted Dr Eric Lim and was certified unfit to work;
(l) the applicant underwent right shoulder rotator cuff repair under the hand of
Dr Kalvin Chien on 4 October 2022;(m) the applicant frequently consulted with various general practitioners regarding pain and discomfort in various body parts including his neck and right shoulder on numerous occasions from 13 January 2023. The applicant was certified unfit to work and underwent various conservative treatments including pain and anti-inflammatory medication, and
(n) despite conservative treatment, the applicant experiences ongoing neck pain and stiffness, with a restricted range of motion and flexibility in his neck due to pain and discomfort. The applicant also continues to experience ongoing pain, stiffness, restriction and discomfort in other body parts including his right shoulder.
Treating medical evidence
Dr Eric Lim, general practitioner
Dr Lim provided evidence by way of reports dated 7 July 2021, 14 July 2021 and
10 September 2021.Dr Lim reported numerous diagnoses which included cervical spine strain. Dr Lim recorded a history of injuries to the applicant’s right knee, back, left hip, shoulder and neck due to repetitive lifting, pushing, pulling and transporting of drinks over a period of 10 years of physical work, lifting approximately 120 boxes per hour nine hours a day and fork lift driving that involved repetitive flexion and extension of the neck. Dr Lim noted that the applicant worried that he would lose his job. On examination, Dr Lim noted limited range of movement and pain in the applicant’s neck. Dr Lim diagnosed neck, shoulder, right knee, back and left hip injuries due to repetitive lifting, pushing, pulling and transporting of drinks over a period of 10 years of physical work. Dr Lim expressed the opinion that the applicant’s employment was the main contributing factor to the deterioration of conditions of his neck, shoulder, right knee, back, left hip. Dr Lim stated:
“Performing heavy and repetitive duties as a store person over a period of time is a well known mechanism of injury and was the main contributing factor for Mr Ngo to have developed the different injuries reported. In addition, it is clear from his report that Mr Ngo was frequently consulting his local GP complaining with recurrent pain in different body parts during 2020 which apparently were not investigated or considered. By contrast He ended up returning to work to perform some duties which deteriorated his conditions over time.
Mr Ngo’s job involved repetitive lifting heavy materials at work. The repetitive nature of his physical work for the past 10 years was the main contributing factor for the deterioration of his conditions. ln relation to his neck, the repeated turning and twisting of a forklift driver, and the use of his arms which hang off his neck was the main contributing factor to its deterioration.
I have re-examined him today. He has persistent bilateral shoulder, neck and lower back pain and dysfunction. He walks with an altered gait, causing an aggravation to his R) knee' His symptoms have worsened since ceasing treatment.”
Dr David Kumagaya, consultant psychiatrist
Dr Kumagaya provided evidence by way of reports dated 30 September 2021,
9 November 2021 and 25 January 2022. Dr Kumagaya diagnosed adjustment disorder with depressed mood.
Dr Peter Khong, neurosurgeon and spine surgeon
In a report dated 2 September 2022, Dr Khong stated a diagnosis of lower back pain due to musculoligamentous strain and some exacerbation of pre-existing degenerative changes.
Dr Khone noted that an MRI of the lumbar spine on 21 July 2021 showed some degenerative disc disease in the lower thoracic spine. Dr Khong recorded a history that the applicant developed increasing pain in the context of working in a wine warehouse for 10 years.
Dr Sebastian Calvache Rubio, general practitioner
In a report dated 31 March 2022, Dr Calvache Rubio stated diagnoses which included neck injury due to repetitive lifting, pushing, pulling and transporting of drinks in the setting of 10 years of physical work with the respondent, which was the main contributing factor to the injuries. Dr Calvache Rubio expressly disagreed with Dr Haig’s opinion and maintained that the applicant had sustained multiple injuries as a result of the nature and conditions of his work with the respondent.
Dr Gregory Cameron, injury management consultant, occupational medicine
In a report dated 17 April 2023, Dr Cameron noted that injuries to the applicant’s lumbar spine, right shoulder and right knee had been accepted. Dr Cameron noted that on
21 July 2021, an MRI of the lumbar spine was reported to show a very mild broad-based disc bulge at T12/L1 and was otherwise an unremarkable study. On examination, Dr Cameron noted that the applicant’s cervical spine had tight musculature and restricted range of movement to the left, although power, sensation and tone were normal. Dr Cameron expressed the opinion that as the applicant was able to perform certain activities of daily living, he had capacity to perform four hours, five days a week in a sedentary role.
In a report dated 11 October 2023, Dr Cameron stated that he found the applicant to be a genuine man. On examination, Dr Cameron noted that the applicant’s cervical spine had tight musculature and restricted range of movement to the left, although power, sensation and tone were normal. Dr Cameron expressed the opinion that as the applicant was able to perform certain activities of daily living, he had capacity to perform four hours, five days a week in a sedentary role.
Clinical records
The evidence includes a surgery discharge issued by Strathfield Private Hospital on
4 October 2022 and various clinical notes of treating doctors.
Certificates of capacity
The evidence includes various certificates of capacity which refer to injury to various injuries including cervical spine strain.
Other evidence
Other evidence includes:
(a) Vocational Assessment Reports dated 14 August 2023,16 February 2024,
8 August 2024 and 12 August 2024;(b) list of payments, and
(c) Wages Schedule filed by the applicant.
Independent medical evidence
Dr James Bodel, orthopaedic surgeon, qualified by the applicant
In a report dated 28 May 2024, Dr Bodel recorded a history that: the applicant began to develop neck and shoulder girdle pain on the right-hand side from doing forklift driving work, including high reach forklift because he had to look up quite frequently; the applicant continued to work and steadily deteriorated with increasing neck and right shoulder pain, right knee pain and lower back pain as well as some left knee and hip pain.; the symptoms came on gradually as a result of the nature and conditions of his work in general; and the symptoms subsequently deteriorated. Dr Bodel stated that the applicant formally reported the injuries in May 2021 and his last day of work was 6 July 2021.
On examination, Dr Bodel noted that: the applicant complained of tenderness in the trapezius muscles at the base of the neck on the right-hand side; had a reduced range of neck flexion, extension and rotation in all directions, with clear restricted rotation to the left; had restricted range of shoulder movement on the right-hand side; had impingement in the right shoulder but not the left.
Dr Bodel diagnosed: a soft tissue injury to the neck; a rotator cuff tear in the region of the right shoulder; a torn medial meniscus and an injury to the lower part of the back which was a musculoligamentous injury; and aggravation, acceleration, exacerbation and deterioration to degenerative change in the region of the right knee. Dr Bodel expressed the opinion that the applicant’s employment was a substantial contributing factor to those injuries. Dr Bodel stated that the applicant was totally and permanently incapacitated for work for which he has appropriate levels of education, physical fitness, training and experience.
In a further report dated 28 May 2024, Dr Bodel stated that he assessed total 21% WPI, calculated on the basis of 8% WPI for the right upper extremity, 7% for the cervical spine, 5% for the lumbar spine and 4% for the right lower extremity.
In a supplementary report dated 11 September 2024, Dr Bodel noted the applicant provided a history that he developed increasing neck and right shoulder girdle pain associated with the nature and conditions of his work in general, and also increasing lower back pain over time. Dr Bodel confirmed the diagnosis of soft tissue injury to those areas. Dr Bodel expressed the opinion that the nature and conditions of the applicant’s work over a period of years was the main contributing factor to the injury to his cervical spine condition by way of aggravation, acceleration, exacerbation and deterioration of the disease process of an underlying degenerative disc condition, which had not resolved. Dr Bodel expressed the opinion that the applicant’s complaints were genuine and he identified a rateable impairment associated with injury to those areas. Dr Bodel agreed with Dr Haig’s identification of pathology being “degenerative disc disease”. Dr Bodel expressly disagreed with Dr Haig’s opinion that the nature and conditions of the applicant’s employment had not caused aggravation, acceleration, exacerbation and deterioration to the underlying, genetically determined degenerative process. Dr Haig stated that:
“It must be remembered that when driving a forklift, the forklift is usually driven in reverse, particularly when it is lifting a pallet load of something in front of it. He therefore has to turn around quite acutely over his right shoulder to drive in reverse using a spinner knob on the steering wheel. I agree with Dr Haig’s diagnosis, but I disagree with this interpretation of the word “injury” in this circumstance.”
Dr Bodel expressed the opinion that the applicant was totally and permanently incapacitated for work for which he has appropriate levels of education, physical fitness, training and experience. Dr Bodel expressly disagreed with Dr Haig’s opinion in relation to assessment of WPI and confirmed his assessment of WPI. Dr Bodel stated that the applicant’s prognosis remained guarded because of the underlying pathology which had been aggravated, accelerated, exacerbated and deteriorated by the applicant’s work.
Dr Ron Haig, orthopaedic surgeon, qualified by the respondent
In a report dated 31 August 2021, Dr Haig referred to a letter from the respondent to the applicant dated 12 July 2021 which referred to “right knee aggravation, lumbar spine strain, left hip aggravation, bilateral shoulder strain, cervical spine strain which you state occurred on 12 May 2021”. However, Dr Haig did not appear to assess nor provide an opinion in relation to the applicant’s cervical spine. In relation to the applicant’s right shoulder Dr Haig stated that “In terms of his right shoulder, there has been no particular incident. He referred to his work operating a forklift and checking, scanning stock which was repetitive in nature. He stated this ‘caused neck and right shoulder pain’”. Otherwise, Dr Haig did not record any detail regarding the nature and conditions of the applicant’s employment. Noting that the consultation was by way of telehealth and he was unable to conduct and examination and did not have any imaging, Dr Haig stated that he was unable to offer any diagnosis in relation to the applicant’s right knee, low back and right shoulder. In relation to those body parts,
Dr Haig stated that, in his opinion, there had been no injuries, merely onset of complaints, and he had no reason to believe that the applicant had any significant conditions. Further,
Dr Haig stated that he had no reason to believe that the applicant’s employment was a substantial contributing factor to the applicant’s complaints in relation to his right knee, low back and right shoulder.In a report dated 9 September 2021, Dr Haig diagnosed: age-related degenerative change of the lumbar spine, being a very mild broad based disc bulge at T12/L1, which he considered was not an injury; age-related degenerative change of the right knee, being high grade chonropathy of the central PFJ with the presents of associated small joint effusion; and a small juxta insertional full thickness tear anterior one-third distal supraspinatus of the applicant’s right shoulder. Dr Haig expressed the opinion that the pathology was not a result of the applicant’s employment because there was no report of any particular injurious incident. Further, Dr Haig stated that he had no reason to believe that the applicant’s work had aggravated any underlying condition. Dr Haig stated that rotator cuff repair surgery may be indicated if the applicant’s symptoms were sufficiently severe, but he did not believe that such surgery was necessitated by the applicant’s employment.
In a report dated 8 July 2024, Dr Haig stated that he had no diagnosis for the applicant’s right knee, right shoulder and neck on the basis that there were no findings on examination and he had no radiology reports. Dr Haig stated that the applicant’s neck complaints appeared to be minimal. Dr Haig stated that there was no reported mechanism of injury and he had no reason to believe that the applicant’s work as a forklift operator or pick/packer would cause any neck pathology in the absence of any particular injury. Dr Haig stated that he believed that any discomfort that the applicant may have from turning his head in the course of his employment would have settled with the discontinuation of his work some years ago. Dr Haig expressed the opinion that the applicant had current work capacity and was capable of undertaking his pre-injury employment. Dr Haig did not believe that any current incapacity was a result of any alleged injury. Dr Haig assessed 0% WPI in respect of the right shoulder and 0% WPI in respect of the right knee. Dr Haig noted that in the cervical spine there was asymmetry of lateral flexion and rotation, which carried a 5% WPI, but Dr Haig did not believe that the applicant’s cervical spine condition, “whatever that may be”, was work-related. Dr Haig expressly disagreed with Dr Bodel’s opinions, and reiterated that he did not believe that the applicant’s work driving a forklift would cause any pathology or lasting symptoms which continued after the applicant had ceased the work.
SUBMISSIONS
Counsel’s submissions were recorded and have been considered in full. Both counsel referred to various evidence. Both counsel accepted that there is no evidence before the Commission of investigation or imaging of the applicant’s cervical spine.
On behalf of the applicant, Mr Tanner submitted that: various injuries are not in dispute; the applicant’s credibility and evidence is not contested and it should be accepted; Dr Bodel’s opinion should be preferred and accepted because it was based on an accurate history of the nature and conditions of the applicant’s employment and the physical demands of the applicant’s work; Dr Cameron also recorded symptoms, tight musculature and restricted movement to the left affecting the applicant’s neck and referred the applicant for physiotherapy of his neck; little weight should be given to the report of Dr Haig, except to the extent that he acknowledged the applicant had neck complaints and noted a restricted range of movement of the cervical spine, which was a concession on neck pathology; the applicant does not allege any frank injury; the applicant presses injury pursuant to ss 4(b)(i) and 4(b)(ii) of the 1987 Act.
On behalf of the respondent, Mr Grimes submitted that the Commission should find for the respondent because: there is no contemporaneous evidence of reports of neck pain prior to 2019; there was no investigation nor imaging of the applicant’s cervical spine; on examination Dr Haig found normal power and reflexes of the applicant’s cervical spine; the evidence that a fork-lift is usually driven in reverse cannot be correct and it would be driven both forwards and backwards; Dr Haig’s opinion should be preferred and accepted.
On behalf of the applicant, Mr Tanner submitted in reply that: the Commission can and should make a finding of injury to the applicant’s neck notwithstanding there is no evidence of investigations and imaging of the neck; Dr Bodel gave a diagnosis of soft tissue injury of the neck and Dr Lim gave a diagnosis of cervical spine strain; it is immaterial that there is no explanation for continuing symptoms of those diagnoses, and they are continuing symptoms with no explanation; the applicant’s credibility is not contested and his evidence that he drove the fork-lift in reverse whilst looking over his shoulder should be accepted in the absence of any evidence to the contrary; the applicant presses a finding of soft tissue injury to the cervical spine.
FINDINGS AND REASONS
The law
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.”
As noted by Deputy President Wood in State of New South Wales (Sydney Local Health District) v Edwards,[1] referring to Rail Services Australia v Dimovski (Dimovski):[2]
“... Dimovski is long standing authority for the principle that a personal injury pursuant to s 4(a) of the 1987 Act is distinct from a disease injury pursuant to s 4(b) of the 1987 Act. Dimovski is relevant to this case on that basis, but it does not assist in regard to a determination of whether the employment was the main contributing factor to the disease injury. Dimovski was determined well prior to the amendment to s 4(b) requiring the employment to be the main contributing factor to the injury, so there was no discussion as to the effect that a separate personal injury might have on a consideration of the main contributing factor to a disease injury...”
[1] [2024] NSWPICPD 83 at [138].
[2] [2004] NSWC 267.
In AV v AW,[3] Snell DP considered the expression, “main contributing factor” in s 4(b)(ii) and observed:
“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.”
[3] [2020] NSWWCCPD 9.
The expression, “aggravation, acceleration, exacerbation or deterioration” of a disease for the purposes of s 4(b)(ii) of the 1987 Act was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch[4] (Semlitch):
“The words have somewhat differing meanings: one may be more apt than another to describe the circumstances of a particular case: but their several meanings are not exclusive of one another. The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient. To say that a man's sickness is worse or has deteriorated means in ordinary parlance, oddly enough, the same thing as saying that his health has deteriorated.”[5]
[4] [1964] HCA 34; 110 CLR 626.
[5] Semlitch, at [640].
Justice Kitto in the same case found:
“Moffitt J. was right, I think, in saying: ‘There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism’. Accordingly if salt be applied to an open wound, making the would no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.”[6]
[6] Semlitch, at [635].
In Cook v Midpart Pty Ltd trading as McDonalds Forster & Anor,[7] the New South Wales Court of Appeal set out a useful analysis of the application of s 4(b)(ii) of the 1987 Act (albeit prior to more recent amendments to the 1987 Act) generally and also specifically in the context of the natural progression of an underlying degenerative condition.
[7] [2008] NSWCA 151 at [38] to [54].
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[8] (Kooragang).
[8] (1994) 35 NSWLR 452; 10 NSWCCR 796.
Although the High Court in Comcare v Martin[9] raised some concerns about the common-sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common-sense approach still has place in the application of the legislation to the present case.
[9] [2016] HCA 43, at [42].
Principles regarding the discharge of the onus of proof were considered by President Keating in Department of Education & Training v Ireland[10] (Ireland). In order for the applicant to discharge the onus that he sustained the alleged injury, I “must feel an actual persuasion of the existence of that fact”.
[10] [2008] NSWWCCPD 134, [89], applying Nguyen v Cosmopolitan Homes [2008] NSWCA 246, per McDougall (McColl and Bell JJA agreeing) at [44]-[48].
Credibility of the applicant’s evidence
The applicant’s credibility has not been challenged and no application was made for leave to cross-examine.
There is no witness evidence which directly addresses and challenges the applicant’s evidence in relation to his work duties and generally.
Dr Cameron, injury management consultant, found the applicant to be genuine.
The applicant’s evidence regarding the history of his work and injury and the nature and conditions of his employment is generally consistent with the treating medical evidence.
The applicant has explained that he did not make a claim for workers compensation earlier because he was fearful that he would be dismissed from his employment.
Having regard to the evidence as a whole and for the reasons set out above, I do not consider that there is any compelling reason for me to not accept the credibility of the applicant’s evidence.
Indeed, I do feel a sense of persuasion and I accept the applicant’s evidence as a truthful and honest account of the relevant factual events, particularly in relation to the nature of the applicant’s work duties and his subjective experience of his physical condition.
The nature and conditions of the applicant’s employment
For the reasons set out above, I accept the applicant’s evidence as to the nature and conditions of his employment with the respondent.
In particular, I accept that during the course of the applicant’s employment with the respondent, the applicant performed strenuous physical labour which included repetitive lifting, pushing, pulling and transporting of drinks. Further, I accept that the applicant also drove forklifts, which involved frequently turning his head as he drove the forklift in reverse.
Disease
The respondent accepts that the applicant sustained injury to his back, right shoulder and right knee due to the nature and conditions of his employment, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(i) of the 1987 Act.
The applicant’s evidence is that his work duties also caused him to experience a gradual onset of pain and discomfort in his neck, which slowly deteriorated over time to the point that he was no longer able to work. For the reasons set out above, I accept the applicant’s evidence as to his subjective experience in that regard.
That is consistent with the treating medical evidence. Dr Lim found that the applicant had persistent neck pain and dysfunction and diagnosed cervical spine strain, caused by the nature and conditions of the applicant’s employment. Dr Calvache Rubio made a similar diagnosis. Dr Cameron, injury management consultant, also found that the applicant’s cervical spine had tight musculature and limited range of movement.
On examination, Dr Bodel found tenderness in the trapezius muscles at the base of the neck on the right side, a reduced range of neck flexion, extension and rotation in all directions and particularly the left, restricted shoulder movement on the right side and impingement of the right shoulder. Dr Bodel diagnosed a soft tissue injury to the neck, and that the nature and conditions of the applicant’s employment over a period of years was the main contributing factor to that injury.
In contrast, Dr Haig noted a restricted range of movement of the applicant’s cervical spine but did not give any diagnosis of a neck condition on the basis that there were no findings on examination, no radiology reports and he considered that the applicant’s neck complaints were minimal. Dr Haig did not accept that the applicant had a neck condition caused by the nature and conditions of his employment, stating that any discomfort that the applicant may have experience from turning his neck whilst performing his work would have settled with the discontinuation of the work some years ago.
Dr Bodel, the treating general practitioners and Dr Cameron found evidence of neck pathology on examination. I consider that Dr Haig’s observation that the applicant had a restricted range of movement of the cervical spine is also consistent with some neck pathology.
Dr Bodel’s diagnosis of soft tissue injury of the neck is consistent with Dr Lim’s diagnosis of cervical spine strain.
There is no contemporaneous evidence of reports of neck pain prior to 2019. However, the applicant has explained that he developed neck symptoms gradually over a period of time and that the symptoms continued to deteriorate to the point where the applicant was unable to work. The applicant also explained that he did not make a claim for workers compensation earlier because he was fearful of being dismissed from employment. I accept the applicant’s evidence in that regard. I consider that it is understandable in those circumstances that the applicant did not report neck pain prior to that time. On that basis, I consider that the lack of contemporaneous reports of neck pain prior to 2019 is not necessarily inconsistent with a finding of soft tissue injury to the neck caused by the nature and conditions of the applicant’s employment.
There is no evidence before the Commission of investigation or imaging of the applicant’s cervical spine. Having regard to the evidence as a whole, I do not regard that as necessarily fatal to a finding that the applicant sustained a soft tissue injury to the neck. In the context of the circumstances as a whole, I consider that may be consistent with the diagnosis of soft tissue injury to the neck.
I accept that there is no evidence which provides a comprehensive explanation of why the applicant’s neck symptoms have persisted after he ceased to perform the work. However, Dr Bodel did express the opinion that the soft tissue injury caused aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative condition of the spine and contributed to the applicant’s ongoing symptoms. As I noted above, the applicant’s credibility is not contested and a number of doctors accepted that the applicant was genuine. Having regard to the evidence as a whole, I do not consider that the unexplained continuation of symptoms of soft tissue injury to the cervical spine warrants a finding that no such injury was sustained.
To the extent that it is necessary to reconcile the history of the applicant’s work duties described by the respective independent medical experts, I prefer and accept the history recorded by Dr Bodel, because I consider it to be more consistent with the applicant’s evidence and based on an accurate history of the nature and conditions of the applicant’s employment and the physical demands of the applicant’s work.
In any event, as a matter of common sense, I consider that it is conceivable, indeed likely, and I accept, that the applicant’s work would have caused an abnormal load on the applicant’s neck and was a mechanism for injury to the applicant’s neck.
Having carefully considered the evidence as a whole and for the reasons given above, I prefer and accept the opinion of Dr Bodel.
Further, I do feel a sense of persuasion and I am satisfied on the balance of probabilities, that the applicant sustained injury to his cervical spine due to the nature and conditions of his employment, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(i) of the 1987 Act.
Aggravation, acceleration, exacerbation or deterioration of disease
There is no imaging of the applicant’s cervical spine and accordingly no imaging which shows pathology of a pre-existing degenerative condition of the applicant’s spine.
However in July 2021, Dr Peter Khong diagnosed musculoligamentous strain and some exacerbation of pre-existing degenerative changes in the applicant’s lumbar spine, noting that an MRI of the lumbar spine showed degenerative disc disease in the lower thoracic spine.
Further, Dr Haig acknowledged that the applicant had age-related degenerative disc disease.
That is consistent with the existence of a pre-existing degenerative condition of the spine.
Dr Lim diagnosed aggravation and deterioration of the applicant’s neck condition caused by the cervical spine strain.
Dr Bodel expressed the opinion that the nature and conditions of the applicant’s work over a period of years was the main contributing factor to the injury to his cervical spine condition by way of aggravation, acceleration, exacerbation and deterioration of the disease process of an underlying degenerative disc condition, which had not resolved.
The medical evidence in this regard is not clear cut.
However, having carefully considered the evidence as a whole and for the reasons given above, I prefer and accept the opinion of Dr Bodel. I consider that it provides a well-reasoned, logical and likely explanation of the applicant’s pathology and possibly his ongoing symptoms.
Accordingly, I do feel a sense of persuasion and I am satisfied on the balance of probabilities, that the applicant sustained injury to his cervical spine due to the nature and conditions of his employment, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which his employment with the respondent was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
Compensation for permanent impairment
Section 66(1) of the 1987 Act states:
“66 Entitlement to compensation for permanent impairment
(1)A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker’s employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act.
Note—
No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less.”
There is a dispute in relation to assessment of WPI. Given my findings above, it is appropriate to refer the matter to the President for referral to a Medical Assessor for determination of WPI.
Compensation for medical and related expenses
The applicant seeks a general order for medical expenses pursuant to s 60 of the 1987 Act.
Sub-section 60(1) of the 1987 Act relevantly provides:
“60 Compensation for cost of medical or hospital treatment and rehabilitation etc
(1)If, as a result of an injury received by a worker, it is reasonably necessary that:
(a)any medical or related treatment (other than domestic assistance) be given, or
(b)any hospital treatment be given, or
(c)any ambulance service be provided, or
(d)any workplace rehabilitation service be provided,
the worker’s employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2).
...”
In Diab v NRMA Ltd,[11] Roche DP, referring to the decision in Rose v Health Commission (NSW),[12] set out the test for determining if medical treatment is reasonably necessary as a result of a work injury.[13]
[11] [2014] NSWWCCPD 72.
[12] [1986] NSWCC2; (1986) 2 NSWCCR 32.
[13] [2014] NSWWCCPD 72, at [76].
Considering the evidence as a whole, my findings above and having regard to the matters set out in Diab v NRMA Ltd,[14] I am satisfied that medical and related treatment is reasonably necessary as a result of the injury sustained by the applicant.
[14] [2014] NSWWCCPD 72.
On that basis, I am satisfied that it is appropriate to make a general order that the respondent pays the applicant compensation pursuant to s 60 of the 1987 Act.
Weekly compensation
Section 33 of the 1987 Act states:
“33 Weekly compensation during total or partial incapacity for work
If total or partial incapacity for work results from an injury, the compensation payable by the employer under this Act to the injured worker shall include a weekly payment during the incapacity.
Note—
Chapter 3 of the 1998 Act (Workplace injury management) provides that, if a worker fails unreasonably to comply with a requirement of that Chapter after being requested to do so by an insurer, the worker has no entitlement to weekly payments of compensation for the period that the failure continues.”
Section 38 of the 1987 Act states:
“37 Weekly payments during second entitlement period (weeks 14–130)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker’s pre-injury average weekly earnings.
(2) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the lesser of the following rates—
(a) 95% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b) the maximum weekly compensation amount, less the worker’s current weekly earnings.
(3) The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the lesser of the following rates—
(a)80% of the worker’s pre-injury average weekly earnings, less the worker’s current weekly earnings,
(b)the maximum weekly compensation amount, less the worker’s current weekly earnings.”
Having regard to the statements of Deputy President Roche in Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 at [266]-[269],[15] I consider that it is appropriate, and the parties agree, that determination of the applicant’s entitlement to weekly compensation should be delayed until the applicant’s WPI is assessed by a Medical Assessor.
[15] I note that the decision was overturned on appeal but not on this procedural point.
Accordingly, I will direct that the matter is to be relisted for a further conference to address the issue of the applicant’s entitlement to weekly compensation after the issue of a Medical Assessment Certificate.
SUMMARY
On that basis, I determine that:
(a) the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(i) of the 1987 Act, and
(b) the applicant sustained injury to his cervical spine due to the nature and conditions of his employment with the respondent, with a deemed date of injury of 7 July 2021, in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, to which the employment was the main contributing factor pursuant to s 4(b)(ii) of the 1987 Act.
95.On that basis, it is appropriate to make the following orders:
(a) The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: 7 July 2021 (deemed).
Body parts: right upper extremity (shoulder);
right lower extremity (knee);
lumbar spine, and cervical spine.
Method: Whole person impairment.
(b) The materials to be referred to the Medical Assessor are to include:
(i)ARD and attached documents;
(ii)Reply and attached documents, and
(iii)Wages Schedule lodged by the worker.
(c) The respondent is to pay the applicant’s medical and related expenses pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge.
(d) After the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference before me to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation.
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