Nuku v Inghams Enterprises Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nuku v Inghams Enterprises Pty Ltd & Ors [2024] NSWPIC 196
APPLICANT:	Mele Nuku
RESPONDENT:	Inghams Group Ltd
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	18 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant worked in heavy and repetitive work over 18 years; allegations of injury to various body parts; medical evidence did not explain some allegations of injury; Hancock v East Coast Timber Products Pty Ltd applied; finding of injury to arms/wrists and neck pursuant to section 4(b)(ii); capacity; use of histories of occupation experience contained in medical reports; Guthrie v Spence and section 43(2) of the Personal Injury Commission Act referred to; Byrom v Inghams Enterprises Pty Ltd not applied; findings made that applicant had an ability to work in suitable employment of 38 hours per week in light manual work assessed based on the minimum wage; Held – orders made for weekly compensation.
DETERMINATIONS MADE:	The Commission determines: Findings 1. The employment is the main contributing factor to the aggravation of the disease within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) for the hands, wrists and cervical spine deemed to have occurred on 1 February 2022. 2. The applicant has not satisfied that the employment was the main contributing factor to either the contraction or the aggravation, deterioration, acceleration or exacerbation of the disease in the knees and lumbar spine pursuant to s 4(b) of the 1987 Act. Orders 3. Order in favour of the respondent in respect of the allegation of injury to the knees and the lumbar spine. 4. The respondent pays the applicant weekly compensation pursuant to s 37 of the 1987 Act as follows: (a) $219.54 per week from 2 May 2022 to 30 June 2022; (b) $179.54 per week from 1 July 2022 to 30 June 2023, and (c) $109.54 per week from 1 July 2023 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Ms Mele Nuku (the applicant) was employed by Inghams Group Ltd (the respondent) from August 2004 to February 2022.
The nature of the heavy repetitive work duties was described by the applicant in the following uncontracted manner:[1]
[1] Application, pages 1-2.
“My employment with the Respondent involved frequent and strenuous use of my body including the use of my right wrist, right shoulder, left wrist, let shoulder, neck, back, left leg, and right leg and was stressful….
Working on the turkey boning line involved the following, which were all done standing:
(a) There were four stages on the line and we changed position every half hour. We also change between boning out the white meat from the upper half of the turkey, and boning out the dark meat from the bottom half of the bird, although the duties with each were very similar.
(b) The first job was hanging the turkeys. The turkeys were already cut into two (i.e. into upper and lower halves). The halves would drop from a chute into a tub. I would then pick it up and place it on a book on an elevated conveyor line. I had to lift the turkey hearts to shoulder height. The weights vary from 12-15 kgs.
(c) The next stage was taking the skin of the birds. This was done by using a knife in my right hand. Whilst the bird was hanging on the conveyor line, I would cut the neck with a knife. Then, using both hands, I would pull skin off by pulling it downwards from the neck.
(d) The next job was boning the turkeys. Whilst holding the bird with my left hand I would cut down the breast to remove a whole fillip from one side of the bird. I would then repeat the procedure on the other side of the bird. If it was a dark meat run, the procedure was similar, except I was removing the fillets from the thigh and leg.
(e) The last job was removing the carcasses of the birds from the elevated conveyor line and putting them down shoot. This could often be difficult as the carcasses became wedged in the conveyor line due to downward pressure being applied whilst the earlier steps were carried out.
(f) All of the above jobs required forcible and repetitive movements are both arms and hands, as well as lifting to shoulder height.
(g) The chicken line was similar, but it was easier in that the birds were smaller, however, we are expected to bone many more chickens than we did on the turkey line.”
The allegation of injury was pleaded in the Application to Resolve a Dispute (the Application) as occurring from August 2004 to February 2022 with the following injury description:
“The nature and conditions of the applicant’s employment from 21 August 2004 to 24 February 2022 caused injuries to her back, neck, left and right upper extremities (shoulders, wrists and hands) and left and right lower extremities (knees).”
At the hearing the applicant only made submissions on allegations of injury to the hands/wrists, neck, low back and bilateral knees. I will determine the matter on the basis of how it was argued rather than pleaded.
Weekly compensation was claimed, pursuant to the Workers Compensation Act 1987 (the 1987 Act) from 2 May 2022 to date and continuing. The pre-injury average weekly earnings (PIAWE) were pleaded as $1,239.42.

ISSUES

The respondent disputed injury pursuant to s 4 of the 1987 Act. This dispute was based on a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 2 May 2022. The notice also denied incapacity and the extent of any incapacity pursuant to s 33 of the 1987 Act.[2]
[2] Application, p 36.
I am only required to provide a brief statement of reasons.[3]
[3] Section 294(2) of the 1998 Act.

EVIDENCE

The matter was listed for arbitration hearing on 12 March 2024 when Mr Carney of counsel appeared for the applicant and Mr Saul of counsel appeared for the respondent.
The following material was admitted into evidence without objection:[4]
(a) the Application and attachments, and
(b) the Reply and attachments.
[4] T, pp 2-3.
There was no request to call oral evidence.
On 10 April 2024 I issued the following further direction.
“1. The applicant’s occupational history is recorded by Dr Porteous (Application, p 27). The passage in that report is consistent with the applicant’s submission that the work with the respondent reflected her skills and work experience within the meaning of s 32A of the Workers Compensation Act, 1987.
2.     The parties in their submissions assumed that there was no evidence of the applicant’s occupational history. The report prepared by Dr Porteous was referred to by both counsel, although the subject passage relating to the applicant’s occupational history was not. This paragraph is now brought to the respondent’s attention.
3.     The respondent is to make any further submissions on the issue of the applicant’s skills and work experience (s 32A of the WC Act) considering the above passage.
4.     The respondent can file any submission restricted to this matter, by close of business, 15 April 2024.”

Applicant’s statements

The applicant described the heavy and repetitive work with the respondent from 2004 until 2022. This evidence is set out earlier. I accept the uncontradicted evidence provided by the applicant on the nature of the work duties.
The applicant stated that she started experiencing knee pain from the long-standing posturing in October 2021 and in late 2021 noticed pain, numbness and weakness in the left hand and wrist with neck pain. Pain was subsequently felt in the right-hand.
The applicant stated she had ongoing pain and restriction of movement in her neck, low back and both arms.
The applicant stated that she ceased work on 1 February 2022 because of her injuries.[5]
[5] Application, p 6, par 15.
In her second statement the applicant described two injuries in identical form occurring either on 30 January 2022 or 5 February 2022.[6]
[6] Application, p 5.

Clinical records

On 10 October 2021 the general practitioner (GP) noted bilateral knee swelling, prescribed Voltaren and referred the applicant for a right knee X-ray.[7]
[7] Application, p 76.
On 5 February 2022 the GP noted the following:[8]
[8] Application, p 74.
“1.5 weeks of numbness and weakness left hand
All the time
Works physical job de-boning chickens in factory line
Getting weak and slower with de-boning
No neck pain
Mild left elbow pain
Right dominant
…
Reduced sensation left C8 dermatome
Power 4/5 finger abduction left compared to 5/5 on right
Pallens and tinnel sign negative
Mildly left medial epricondyle”
On 11 February 2022 the visit to the GP related to “osteoarthritis of the cervical spine and both knee”.[9] On 15 and 18 February 2022 the clinical notes referred to left upper limb pain.[10]
[9] Application, p 74.
[10] Application, p 73.
The notes of the chiropractor contained within the GP records dated 18 February 2022 referred to left upper limb pain which started at work one year previously and neck pain commencing three months ago at work.[11] The chiropractor noted that the applicant attributed pain to work and “only gets neck pain at work when production line is fast and constantly looking down”.
[11] Application, p 72.
On 24 February 2022 the GP noted left arm pain in the ulnar nerve distribution.[12]
[12] Application, p 72.
On 27 February 2022 the applicant had commenced Lyrica with nil improvement. At that time there was a report of pain in the fifth digit of the right hand, described as intermittent in nature.[13]
[13] Application, p 70.
On 3 March 2022 the GP noted ongoing numbness and weakness of the left hand and reporting of numbness in the right hand in the same distribution.[14] Another GP note of that day reported bilateral tingling in both hands, neck and back commencing “few months ago” and “getting worse lately”.[15]
[14] Application, p 69.
[15] Application, p 69.
On 11 March 2022 the GP noted neck and back pain and diagnosed bilateral carpal tunnel syndrome and “repetitive strain injury” for the hands and muscular pain in the neck and back.[16]
[16] Application, p 68.
A certificate of capacity dated referred to a date of injury of 5 February 2022 noted tingling and numbness in both hands and “neck and back pain for investigation”. The injury was described by the GP in the following terms:[17]
“Patient has been performing repetitive movements whilst de-boning turkeys and breaking bones for the last 18 years. These repetitive movements have contributed to the weakness of her fingers and numbness of her fourth and fifth digit as well as her elbow (C8 radiculopathy). She is now developing similar symptoms in the right upper limb.”
[17] Application, p 96.
The various certificates certified no current work capacity[18] other than a certificate of capacity dated 27 February 2022 which specified capacity of 7 hours per day and four days per week.
[18] Application, pp 96-101; 110-212.

Treating evidence

Dr Vishal Patel, neurologist, provided a report dated 5 May 2022.[19] The doctor noted the applicant’s main concern of recurrent upper limb pain and paraesthesia in the last six months with pain in the small joints of the hands and elbows, pain in the knees and feet and the whole-body aching with difficulty sleeping at night. Swelling was noted around the hands and wrist for the last five to ten years, mainly after work.
[19] Application, p 20.
The applicant noticed development of left upper limb tingling and numbness for the last six months with similar sensation subsequently developing in the right upper limb.
There were recorded complaints of localised neck pain with radiation of both arms, tingling and numbness in both feet and localised lower back pain with intermittent spread to both lower limbs in the L5/S1 distribution.
After investigations, the doctor noted there was recurrent upper limb paraesthesia likely due to ulnar neuropathy and/or carpal tunnel syndrome, recurrent lower limb paraesthesia likely due to peripheral neuropathy and/or L5/S1 radiculopathy. The doctor excluded demyelination disorder and inflammatory joint disorder such as rheumatoid arthritis.
Dr Patel recommended further tests.

Investigations

An X-ray and ultrasound of the left hand and wrist dated 24 February 2022 showed moderate degenerative changes in the PIP joint of the middle finger, mild degenerative changes in the PIP joint of the index finger and mild degenerative changes in the 1^st carpometacarpal joint.[20]
[20] Application, p 83.
The MRI scan of the cervical spine dated 11 March 2022 noted a clinical history of left upper limb C8 radiculopathy and weakness of left fingers. The scan was described as unremarkable and the left C8 nerve demonstrated a normal appearance with no neural compromise.[21]

Qualified opinions

[21] Application, p 81.

Dr Kinzel

Dr Vera Kinzel, was qualified by the applicant and provided a report dated
7 September 2022. The doctor noted that the applicant was a vague historian who described right and left wrist pain since January 2022 in the context of work as a boner with the respondent. The applicant described no treatment other than physiotherapy.
The doctor noted the applicant was born in 1966, immigrated to Australia in 1983 and is married with four children aged between 37 and 25 years of age.
Physical examination noted generalised weakness of grip strength with a normal neurological examination. The doctor opined that the applicant had paraesthesia affecting the right arm in the ulnar nerve distribution since January 2022.
Dr Kinzel opined that paraesthesia affecting the right upper arm which does not allow her to do any heavy lifting and cannot work as a turkey meat process worker. The doctor expressed uncertainty as to an exact diagnosis and believed the generalised weakness and overall decline was due to an underlying rheumatological or neurological disorder. The doctor stated that it was “very difficult to determine which of her symptoms are related to a work injury or which have a more significant underlying medical condition”.[22]
[22] Application, p 16.
The doctor opined that the applicant was able to perform light duties in the form of light office work or light manual work but should not participate in any strenuous heavy lifting.
The doctor noted that the applicant was under investigated and required the opinion of a neurologist.

Dr Andrew Porteous

Dr Andrew Porteous, occupational physician, was qualified by the applicant and provided a report dated 18 July 2023.[23]
[23] Application, p 22.
Dr Porteous described the applicant’s history as “started working at Inghams in 2004 after coming from Tonga and raising her children”.[24]
[24] Application, p 23.
The doctor noted that the applicant worked on the boning lines involving quite forceful activity with the development of left hand and wrist pain in 2021 which started following constant prolonged repetitive forceful movements and the subsequent development of pain in the right hand and right wrist. The doctor also recorded that the work involved “constant standing and looking down, she developed neck pain and lumbar back pain and pain particularly in both knees”.[25]
[25] Application, p 23.
Dr Porteous noted consultations with the GP in October 2021 relating to complaints of pain in both knees, prescribed Voltaren and X-rays which showed loss of medial joint space with osteophyte formation.
The doctor referred to the clinical note of the chiropractor on 18 February 2022 contained within the GP clinical notes which noted wrist pain one year at work and neck pain started three months ago with the report “only gets neck pain at work in the production line is fast and constantly looking down. Also gets back pain”.[26]
[26] Application, p 25.
Dr Porteous noted the applicant reported chronic pain in the cervical spine, both shoulders, both elbows and both wrists with reported numbness in the hands more prominent on the left, chronic lumbar pain with referred pain down the hips and also bilateral knee pain.
Dr Porteous opined that the applicant had degenerative changes in the left-hand, cervical spine, lumbar spine and the knees as a result of ageing related changes. He opined that there had been an aggravation or exacerbation of pre-existing degenerative changes in the left-hand carpometacarpal joint, cervical and lumbar spine and the knees because of the nature and conditions of the work.
The effect on capacity was described by Dr Porteous as:[27]
“[M]s Nuku is restricted from constant or repetitive thumb, finger and wrist activity. She is restricted from moderate or heavy lifting, pushing, pulling or carrying. She is restricted from constant or sustained looking down or repetitive neck movement and constant or sustained bending even to a slight degree. She is restricted from kneeling and crouching and from constant or sustained walking and standing.
Because of the aggravation of all of these joints and that her work involves activity she is now restricted from, she is incapacitated from her normal pre-injury duties and at this point, that is likely to be the case for the medium term as the insurer has declined her claim and she has had very little treatment for management of her significant conditions.”
[27] Application, p 29.
Dr Porteous opined that the applicant was “unfit for all work” and stated that “all of the previous employment that she has worked in involves activity she is now permanently restricted from, and she is incapacitated from it”.[28]
[28] Application, p 29.
Dr Porteous described the cause of the applicant’s injuries from the following work activities:
“In my opinion, her incapacity is as a result of injuries mainly and substantially caused by her work, nature and conditions and particularly the repetitive and at times constantly repetitive bilateral hand activity which is at times forceful along with the constant, sustained prolonged periods of looking down and slightly bending over as well as the intermittent lifting, pushing, pulling or carrying.”

Dr Kim Edwards

Dr Kim Edwards, surgeon, was qualified by the respondent and provided a report dated
[29] Reply, p 7.
20 April 2022.[29]
The doctor noted that the claimant was born in 1966 and had worked with the respondent since 2004 as a boner in the turkey area. Pain in the left wrist commenced some four months ago and the date of injury was “given” as 5 February 2022.
Complaints of pain were described as the ulnar three fingers of the left hand and the ulnar two fingers of the right hand and neck and back pain. The doctor recorded the work description as being no incidents or injury, “her job was heavy, and she had to lift on occasions 40-50 kg weights”.[30] The doctor described the applicant as a poor historian.
[30] Reply, p 9.
The doctor noted there was no description of incident or injury, the applicant did not wish to go back to her work which required her to work very fast on the line lifting heavy weights.
Dr Edwards noted complaints of diminished sensation of the ulnar two fingers of each hand and ulnar side of both right and left palms. Provocative tests for carpal tunnel syndrome were negative.
Dr Edwards opined that the applicant was fit for pre-injury duties and her pre-injury hours of employment but that she did not want to go back to work so he believed it was unlikely she would.
Dr Edwards opined that he could not diagnose the cause of the applicant’s complaints and in the absence of diagnosed condition, opined the prognosis was good. The doctor opined that the employment was not a substantial contributing factor to any physical injury or the main contributing factor to any disease.

Dr Anthony Smith

Dr Anthony Smith, orthopaedic surgeon, was qualified by the respondent and provided a report dated 19 September 2023.[31] The doctor noted the applicant’s age and that she came to Australia from Tonga in 1984, worked for the respondent as a boner which required the applicant to hold a knife in the right-hand and to physically break the thigh bones in the turkey with the left-hand. The job was described as “very repetitive and very physical”, changed workstations every 20 minutes and had performed that job since 2004.
[31] Reply, p 17.

The doctor noted, like other doctors, that the applicant was extremely vague and very difficult to extract a history. He gathered that it was the breaking of the bones of the turkey hindquarters with the left hand that “initiated all of the problems”.
The applicant described pain in neck, both shoulders, both hands, arms, low back and both legs with numbness in the left hand in the thumb and fingers and subsequent development of similar symptoms in the right-hand.
The examination noted normal cervical lordosis, neck movements and half the expected range, limited by pain, no sensory loss in either upper limb, global power loss and all movements of the upper limb, more marked on the left than the right.
Dr Smith opined that the applicant had multiple degenerative diseases although the neck was in far better condition than the average man or woman in her age group. Exhibited weakness was described as unphysiological.
The doctor opined that the applicant had bilaterally moderate severe knee joint osteoarthritis and there was nothing objectively wrong with her apart from the arthritic knees. There was no organic illness that can produce the pattern of weakness exhibited in both upper limbs and the neck. The doctor noted that Pacific Islanders have a high incidence of knee joint osteoarthritis.
In response to the question of whether the employment was the main contributing factor to the cause of or aggravation of the disease, Dr Smith stated:[32]
“It is basically not possible for one particular work activity to produce all the symptoms that she complains of. All the symptoms that she does complain of can be felt from time to time with people in her age group, because of degenerative disease in the lowest parts of the body, that occurs with increasing frequency and severity with the passage of the years.”

SUBMISSIONS

[32] Reply, p21.

Applicant’s oral submissions

The applicant referred to her statements that she worked for 18 years in the boning room, doing full time work and overtime. This work was heavy and repetitive.
The knee pain was alleged to have developed from standing at work and the back pain was from posture.
The applicant referred to the opinion of Dr Kinzel which did not provide a diagnosis.
Dr Patel is the only treating specialist and recommended further investigations. The doctor did not provide a diagnosis. The assistance provided by the doctor was that he recorded the applicant’s complaints of pain.
The applicant referred to the various histories in the clinical notes of the GP and the chiropractor.
The applicant referred to the opinion of Dr Porteous which was the principal opinion on causation. The applicant conceded that that there was no direct opinion on the cause of back and bilateral knee condition and relied on the history that the pain was associated with prolonged standing.
The applicant referred to the various certificates which certified no current work capacity and the opinion of Dr Porteous who reached a similar opinion. It was submitted that all the certificates were the same, only referred to the hands/wrists and that the neck and back were under investigation.
The applicant noted that she was 57 years of age, came to Australia in 1983 and had worked for the respondent since 2004. It was submitted that I would draw the inference that the applicant had only ever engaged in manual work and had no qualifications.
In reply, the applicant noted that there was complaint of localised neck pain to Dr Patel.
The applicant otherwise submitted that Dr Kinzel suggested lighter manual work which would result in less pay than the remuneration with the respondent.

Respondent’s oral submissions

The respondent noted that there was no opinion explaining the cause of the knees and back in circumstances where there were other explanations for these conditions. The explanation that the applicant relied on “standing” in circumstances where this occurs at any time and does not support a finding that the employment was the main contributing factor.
The respondent submitted that there was “nothing remarkable in the scans”.
The respondent noted that a certificate dated 27 February 2022[33] certified the applicant fit for some work 7 hours per day, 4 days per week described as “suitable for light duties, including packing meat into trays”.
[33] Application, p 123.
The respondent submitted that the certificates were of no value being devoid of reasoning. It was noted that Dr Kinzel opined that the applicant was fit for suitable duties such as light manual work or office work.
The respondent referred to the applicant’s history to Dr Edwards that “she does not want to go back to work”.[34] It referred to the opinions of Dr Edwards and Dr Smith that the applicant had full capacity.
[34] Reply, p 13.
The respondent submitted that the claim for neck injury fell into the same category as the back and knees in that there was no proper opinion and that on 5 February 2022 there was a recording of neck pain. It noted that both Dr Kinzel and Dr Patel did not record complaints of neck pain.
The respondent submitted that there were other non-work factors in respect of the neck and the applicant had not discharged its onus.
The respondent conceded that it could not point to any non-work factors in terms of any aggravation of the wrists and the hands.
The respondent submitted that in light of the absence of evidence of s 32A factors, the claim by the applicant for weekly compensation must fail.

REASONS

The applicant bears the onus of proof on the balance of probabilities.[35]
[35] Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSWCA 246 per McDougall J at [44]-[55], McColl and Bell JJA (as their Honours then were) agreeing; Chen v State of New South Wales (No 2) [2016] NSWCA 292 per Leeming JA at [33]-[34]; McColl JA agreeing at [1].

Principles on accepting expert evidence

The question of acceptability of expert evidence is not one of admissibility but of weight: Hancock v East Coast Timber Products Pty Ltd.[36]
[36] [2011] NSWCA 11 (Hancock) at [82]-[83] per Beazley JA, Giles and Tobias JJA agreeing.
It is instructive to repeat what was discussed by Beazley JA (as her Honour then was) in Hancock. Her Honour stated:
“82 Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83 In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162
at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.”
The fair climate principles were discussed by the High Court in Paric v John Holland (Constructions) Pty Ltd[37] and recently discussed by the Court of Appeal in Booth v Fourmeninapub Pty Ltd[38] when Leeming JA stated:[39]
“Although a footnote cited the High Court’s decision in Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 for the reference to ‘fair climate’, in fact that language, deriving from Culver v Sekulich 344 P 2d 146 (1959), a decision of the Supreme Court of Wyoming, was endorsed by this Court’s ex tempore judgment in Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510. The language concerns the degree of accuracy and specificity required when an expert is asked for an opinion on hypothetical facts. In Culver, two men died in a plane crash, and the passenger’s widow sued the pilot’s estate in negligence. Necessarily much of the expert evidence was hypothetical, and in an appeal based on error (rather than rehearing) it was urged that it was wrongly admitted. The passage endorsed by this Court in Paric was at 154:
‘From our analysis of the record, it appears to us that there was some evidence to support every hypothetical question to which objection was made. Such evidence was not always complete, was sometimes hazy as to time, distance, and other vital points but in general furnished a fair climate for the consideration of the views of the expert witnesses.’”
[37] [1985] HCA 58.
[38] [2020] NSWCA 57 at [14].
[39] Bell P and White JA agreeing.
I am entitled to use “commonsense” in evaluating the opinions contained in medical reports. The concept of the use of “commonsense” inferences was discussed in Tudor Capital Australia Pty Ltd v Christensen[40] McColl JA (as her Honour then was) stated:[41]
“The Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material. In cases where the experts differ, the lay tribunal must apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted, an exercise which cannot be carried out without knowing the essential integers of the expert opinion.”
[40] [2017] NSWCA 260 (Christensen).
[41] At [364]-[368], Mcfarlan JA agreeing at [425].

Back and knees

These body parts are addressed together due to the paucity of medical evidence supporting the applicant’s allegation of injury.
The applicant did not specify whether the allegation of injury was under s 4(b)(i) or s 4(b)(ii) of the 1987 Act.
The issue of causation in s 4(b)(i) was discussed by Gleeson JA in Secretary, Department of Education v Dawkings[42] when his Honour stated:[43]
“The requirement in s 4(b)(i) of the 1987 Act that applies to ‘disease’ injuries was introduced by the Workers Compensation Legislation Amendment Act 2012 (NSW). A finding that the employment is ‘the main contributing factor to the injury’ involves a more stringent connection with the employment than the requirement that the employment concerned be ‘a substantial contributing factor’, that applied to ‘disease’ injuries prior to the 2012 amendments to the 1987 Act. However, like the requirement in s 9A of the 1987 Act, the requirement in s 4(b)(i) is an evaluative matter involving questions of impression and degree, and it is also a finding of fact.”
[42] [2024] NSWCA 4 (Mitchelmore & Kirk JJA agreeing).
[43] Dawkings at [44].
The resolution of this dispute applying the test in s 4(b)(i) is therefore an “evaluative matter”.
The application of the principles relevant to a determination of s 4(b)(ii) were discussed by Snell DP in AV v AW.[44] The Deputy President identified the following issues under s 4(b)(ii) when he stated:
“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.”
[44] AV v AW at [78].
The applicant submitted that her case on causation was based on Dr Porteous. She relied on standing for extensive periods of times or posture.
I am satisfied based on the applicant’s evidence and the histories that her duties in her employment involved standing for lengthy periods. It is also accepted that the duties would involve bending forward to perform repetitive duties on the production line.
Dr Porteous did not explain how standing or bending forward (posture) either caused or aggravated the degenerative changes in the lumbar spine and the extensive degeneration in the knees. Consistent with the principles discussed in Hancock, this opinion is of little if any weight.
There is otherwise contrary opinion provided by Dr Smith and Dr Edwards that the underlying conditions were solely degenerative.
Given the absence of explanation by Dr Porteous, I am not satisfied that the applicant has discharged the onus of proof that the employment was the main contributing factor to the contraction of, or the aggravation of the disease.

Cervical spine

The applicant’s case on causation was based on posture, in particular, flexing her neck forward whilst performing duties. That history is recorded in medical reports and in the history recorded by Dr Porteous.
I accept that there are references in the clinical notes of “no neck pain” such as the record of the GP on 5 February 2022. However, there are also references in the clinical notes at that time of upper limb symptoms in the C8 dermatome.
The MRI scan of the cervical spine dated 11 March 2022 was essentially normal and the left C8 nerve root was described as showing a normal appearance with no neural compromise. An X-ray of the cervical spine dated 2 July 2022 showed degenerative changes at C5/6 and C6/7.[45]
[45] Application, p 15.
In these circumstances it is doubtful that any upper limb symptoms were in the C8 dermatome as the scan evidence does not support any pathology at C7/8.
Dr Smith described the scan as showing the neck “in far better condition than the average man and woman in her age group”. I accept that opinion as it is consistent with the radiologist opinion of the MRI scan.
Dr Porteous opined that the nature and conditions aggravated the degenerative changes in the cervical spine.
Logically, I accept that it is plausible that forward flexion of the cervical spine over an extended period can cause neck symptoms. The applicant provided that history to the chiropractor.
I accept that the applicant probably suffered cervical spine symptoms during the course of her employment from the forward flexing of the neck. In accordance with Dr Porteous’ opinion, that activity would have aggravated degenerative changes.
I am persuaded on balance that the applicant suffered neck symptoms caused by her posture at work. Given the description of work, I am satisfied that the prolonged forward flexion over many years probably caused some aggravation to the cervical spine. Given the nature and extent of the work without any other identifiable contributing aggravating cause, I am satisfied that the employment was the main contributing factor to the aggravation of degeneration in the cervical spine.
However, and this is more relevant to the issue of capacity, I do not accept that the cervical spine symptoms were incapacitating. I accept the respondent’s submissions that there were absences of complaints of cervical spine symptoms including histories of no neck pain reflecting the generally modest nature of those complaints and the pathology.

Hands/wrists

As I noted previously, the applicant provided detailed uncontradicted evidence of the heavy and repetitive use of her upper limbs.
I am satisfied that the applicant has symptoms in the wrists and hands as she alleges.
Dr Edwards noted symptoms in the ulnar distribution of both hands.[46]
[46] Reply, p 20.
Dr Porteous referred to symptoms in the ulnar distribution of both hands[47] and degenerative changes in the left carpometacarpal joint. The doctor otherwise recommended nerve conduction studies to confirm his diagnosis.
[47] Application, p 27.
Dr Patel diagnosed paraesthesia likely due to ulnar neuropathies in the upper limbs.[48] Dr Kinzel also noted paraesthesia in the ulnar nerve distribution.[49]
[48] Application, p 21.
[49] Application, p 15.
Dr Smith described a global loss of movement in the upper limbs which he described as “unphysiological”.
Apart from Dr Smith, there is a consensus of medical opinion that the applicant has bilateral symptoms in the ulnar distribution. Dr Porteous also described symptoms due to osteoarthritis in some of the joints.
The respondent referred to the clinical notes which initially only referred to left arm symptoms. However, the right arm symptoms are referenced within a short period in the clinical notes and the histories recorded by doctors. Other histories refer to long standing bilateral upper limb complaints.
I accept that the applicant has established that the employment has established injury within the meaning of s 4(b) in respect of the symptoms in the ulnar distribution and symptoms from the degenerative changes in the hands and wrist. That conclusion is based on the opinion of Dr Porteous who has considered the direct stress to the upper limbs imposed by the extensive heavy and repetitive work.
Dr Edwards’ history of the applicant’s duties is brief and did not reflect the heavy and repetitive nature of these duties. The doctor described the duties as lifting “on occasions 40-50 kgs” and clearly does not consider the extent of the employment duties.
Dr Smith considered the applicant’s condition of the upper limbs as nonorganic, and this formed his opinion on causation. For the reasons discussed above, I consider
Dr Smith’s opinion on diagnosis inconsistent with the balance of the medical evidence.
[50] See par 65 herein.
Dr Smith otherwise does not address whether the work conditions were causative of the upper limb symptoms. His explanation that the work conditions did not cause all of the applicant’s complaints does not address whether the work condition caused some of them.[50]
The issue of the nature of the heavy and repetitive work duties was raised with the respondent’s counsel. Mr Saul candidly accepted that there were no other contributing factors to the allegations of injury to the wrists and hands, unlike the allegation of injury to the other body parts.
In my view Dr Porteous explained opinion of injury to the wrists and hands is consistent with the underlying evidence such as the nature of the work duties, the onset of symptoms and diagnosis. I accept that opinion on this issue.
Based on my findings of the applicant’s condition, the heavy and repetitive duties and the respondent’s concession, I am satisfied that the employment was the main contributing factor to the aggravation of the underlying condition within the meaning of s 4(b)(ii) of the 1987 Act.

Date of injury

It was unclear why there was an issue in respect of the deemed date of injury. There was a tentative suggestion that there may be different dates of injury for different body parts although this was not clarified in submissions. The evidence was that the applicant had consistent work duties, swapping tasks every thirty minutes.
Mr Carney submitted that the last day of employment was 31 January 2022.
Mr Saul referred to a history taken by Dr Edwards which referred to a deemed date of 5 February 2022. Dr Edwards did not explain how that day arose although I note the applicant has also alleged injury due to the nature and conditions until 5 February 2022.
Considering the applicant’s direct evidence of the last day of work, uncontradicted by evidence from the respondent, the last day of heavy and repetitive work was 31 January
2022. The first date of incapacity is therefore 1 February 2022 which is the deemed date of injury pursuant to s 16 of the 1987 Act.

Capacity

The definition of no current work capacity and current work capacity are defined in Schedule 3, cl 9 of the 1987 Act and provide:
“An injured worker has no current work capacity if the worker has a present inability arising from an injury such as the worker is not able to return to work either in the workers pre-injury employment or in suitable employment. “
“An injured work has current work capacity if the worker has a present inability arising from the injury such that the worker is able to return to the workers pre-injury employment or able to return to suitable employment, but the weekly amount that the worker has the capacity to earn in such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before that injury.”
Suitable employment is defined in s 32A of the 1987 Act as:
" ‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited--
(a) having regard to--
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii) the worker's age, education, skills and work experience, and
(iii) any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and
(iv) any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v) such other matters as the Workers Compensation Guidelines may specify, and
(b) regardless of--
(i) whether the work or the employment is available, and
(ii) whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii) the nature of the worker's pre-injury employment, and
(iv) the worker's place of residence.”
The preparation of the evidence in support of this issue was unsatisfactory. However, I am required to determine the case based on the material and the limited submissions.
The applicant is 57 years of age and has resided in Australia since 1983.[51] She has worked with the respondent as a boner/process worker since August 2004.[52] The applicant was born in Tonga and is married with four children aged between 25 and 37 years.[53]
[52] Application, p 1.
[53] Application, p 14.
Dr Porteous occupational history was:[54]
“Ms Nuku said she came to Australia where she was married with children. She said at one point, she did a bit of administration work, collecting forms for something for a few months.
Then, she started an exemption 2004, undertaken constant, forceful, repetitive work through until ceasing in every 2022 or thereabouts.”
[54] Application, p 27.
At the hearing Mr Carney asked me to draw the inference that the applicant was only skilled for manual work. That submission was made because there was inadequate direct evidence of the applicant’s skills and experience.
Following the hearing I drew the parties’ attention to the occupational history contained in the report provided by Dr Porteous.
The respondent submitted that the applicant carried the onus of proof, and the relevant evidence was not contained within her statement. It submitted that the absence of this evidence cannot “be overcome by extremely limited reference referred to in the report of Dr Porteous”, citing Byrom v Inghams Enterprises Pty Ltd.[55] In Byrom, Grady DP stated:
“It is clear that the absence of evidence from the Appellant concerning work conditions was of fundamental significance when the Arbitrator came to assess the weight, if any, to be attached to the expert medical evidence concerning the question of “causation”. The reports of those witnesses had been admitted into evidence including that material recorded by the Doctors as to work conditions. Having regard to the legislative framework governing the functions of the Commission it was a matter for the Arbitrator to determine what, if any, weight should be attached to that evidence. It is my view that the Arbitrator’s approach to the evaluation of the evidence before him was guided by, and in conformity with, relevant principles of the general law. The history as recorded by the Appellant’s medical witnesses concerning work conditions were separate and distinct from the record made by those witnesses of the Appellant’s bodily symptoms at relevant times. The absence of evidence from the Appellant as to those work conditions may properly be perceived by the Arbitrator as a failure by the Appellant to completely establish the factual basis upon which those witnesses’ medical opinions are based. (See Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642 per the Court).”
[55] [2008] NSWWCCPD 67 (Byrom) at [81] and following.
The above passage is inconsistent with the observations of the Court of Appeal in Guthrie v Spence.[56] Campbell JA then noted:
“Section 60 Evidence Act 1995 has the effect that a history taken by a doctor and recorded in a medical report is evidence of the facts so recorded: R v Welsh (1996) 90 A Crim R 364; Eastman v The Queen (1997) 76 FCR 9 at 78-9 per von Doussa, O’Loughlin and Cooper JJ; Quick v StolandPty Ltd [1998] FCA 1200; (1998) 87 FCR 371 at 377-8 per Branson J, 382 per Finkelstein J (with both of whom Emmett J agreed on this point); Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 at 603-4 [39] per Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ; Moran v Amoret Installations Pty Ltd [2000] NSWCA 106 at [7] per Heydon JA (with whom Meagher JA agreed – though para [7] might record only a concession by counsel with no dissent from the judge), [23] per Giles JA (who actually decided the effect of section 60 on medical histories); Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25; (2001) 21 NSWCCR 389 at [70] per Heydon JA (with whom Priestley and Sheller JJA agreed). As several judges have remarked in the cases just cited, this effect of section 60 makes it important that a limitation under section 136 Evidence Act on the use to which such hearsay material can be put be sought if the facts recorded in the histories are controversial. However, no such limitation was sought, or imposed, in the present case on the histories in any of the medical reports tendered.”
[56] [2009] NSWCA 369 (Guthrie).
There was no objection to the admission of the report prepared by Dr Porteous at the hearing. The relevant report was referred to by both counsel, although, as noted in the direction, the applicant did not refer to the relevant passage concerning the occupational history.
The applicant had been working full time in repetitive and heavy employment for the respondent for 18 years. The applicant’s age was known. The history recorded by
Dr Porteous is consistent with the inference that the applicant asked me to make at the hearing.
I otherwise note that the Commission is not bound by the rules of evidence but “may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits”.[57] Whilst the rules of evidence do not apply, the respondent relied on a passage in Byrom that was inconsistent which the Evidence Act 1995. I otherwise do not accept that the cited passage creates a general principle as the respondent appears to submit.
[57] Section 43(2) of the Personal Injury Commission Act 2020.
In these circumstances I accept the history of Dr Porteous concerning the applicant’s skills and experience as it is consistent with the brief references elsewhere such as the applicant’s age and lengthy work history with the respondent.
The respondent otherwise submitted that the history recorded by Dr Porteous is reflective of her skills as she performed some administrative work. It was submitted that this goes “beyond the work” undertaken with the respondent.
The history recorded by Dr Porteous is that prior to the work with the respondent, the applicant “did a bit of administration work, collecting forms for something for a few months”.
I do not accept that short term work collecting forms for a few months undertaken prior to the respondent’s employment created any skillset that assisted the applicant in her capacity to undertake administrative work at her present age.
Mr Carney submitted that the ability to engage in light manual work meant that the pay rate for the applicant’s capacity would be lower. I accept that submission as the inability to perform heavier work, given the applicant’s lack of skills, means that her marketability is less. I was not assisted by a submission with any more precision.
The difficulty is how to determine the applicant’s capacity for suitable employment. The former Commission has been held to be specialist tribunal entitled to draw on its knowledge of labour market and wages.[58] Accepting the applicant’s submission that the pay rate is lower than the rate paid by the respondent, I apply the rate based on the minimum wage. This is because, as being only skilled for manual work, the applicant’s ability to engage in that type of work is limited.
[58] Goktas v Goodyear Australia Pty Ltd [2007] NSWWCCPD 1.
Based on the findings of injury, I do not accept the applicant’s submission that she cannot perform less than full hours. The certificates of capacity do not provide any reasoning.
The applicant otherwise relied on Dr Porteous who does not provide an explained opinion on that issue. His opinion is dependent on all injuries being causative of a lack of capacity. The severity of the bilateral knee condition, and to a lesser extent the back, would result in a degree of incapacity.
I have not accepted the allegations of injury to the back and knees. The opinion of Dr Porteous that the applicant is unfit for any work is based on a consideration that the applicant’s overall condition including the significant degeneration in the knees.[59] Accordingly, I do not accept Dr Porteous’ opinion of the applicant’s capacity as it is inconsistent with these findings.
[59] See at Application, p 29.
The contrary case that the applicant can work full hours is based on opinions provided by Dr Kinzel, Dr Edwards and Dr Smith.
Both Dr Edwards and Dr Smith do not accept that the applicant suffered any injury. Accordingly, their opinion on capacity is based on an absence of injury and inconsistent with these findings. Theses opinions are rejected.
Dr Kinzel opined that the applicant was fit for light manual work. That opinion accords with the findings of injury. There is no reason why the applicant cannot perform normal working hours based on the injuries that have been found to have been caused by the employment with the respondent. I accept Dr Kinzel’s opinion that the applicant is fit for light manual work.
I am not satisfied, on the balance of probabilities, that the injuries resulted in her inability to work less than 38 hours per week.
The applicant asserted that the PIAWE was $1,239.42. The respondent did not contradict that figure. The applicant’s evidence was that this figure included some overtime.
The claim for weekly compensation is from 2 May 2022 and pleaded pursuant to s 37 of the 1987 Act. In these circumstances I have assessed the entitlement pursuant to that section.
I am satisfied that the applicant is not fit for her pre-injury duties. I accept the applicant has ongoing pain in her wrists and hands caused by the heavy and repetitive nature of her work duties over an extensive period. In these circumstances I do not accept that the applicant is fit to continue the work as a boner with the need to use her hands and wrist in physical work on a repetitive basis.
I do not accept that the neck injury is incapacitating. The symptoms and the pathology in the cervical spine are minor. At times, there was no complaints of neck symptoms.
I accept the opinion of Dr Kinzel that the applicant is fit for lighter manual work. The applicant however does not have the skills and experience to perform administrative work and I reject the respondent’s submission to the contrary.
I agree with the respondent’s submissions that the certificates are unexplained.
I have judicial knowledge of wage rates. The applicant is unskilled, and her only work experience is with the respondent where she is now unfit to perform heavy repetitive work. I agree with the applicant that the capacity for remuneration is lower by reason of the various matters in s 32A referenced earlier. Accordingly, I apply the minimum wage which, at relevant times, was $772 in July 2021, $812 in July 2022 and $882 per week in July 2023.
The applicant did not seek any indexation of the PIAWE pursuant to s 82A of the 1987 Act.
Accordingly, the calculations for the entitlement to weekly compensation are:
(a)$1,239.42 x 80% less $772 totals $219.54 per week from 2 May 2022 to
30 June 2022;
(b)$1,239.42 x 80% less $812 totals $179.54 per week from 1 July 2022 to
30 June 2023, and
(c)$1,239.42 x 80% less $882 totals $109.54 per week from 1 July 2023 to date and continuing.
There was no claim for s 60 expenses. I do not make any orders pursuant to s 60 but it is self-evident from the findings and orders that the applicant would be entitled to reasonably necessary s 60 expenses for the injury to the wrists, hands and cervical spine.

FINDINGS AND ORDERS

The findings and orders are set out in the Certificate of Determination.

[2024] NSWPIC 196

18 April 2024