Organ v Woolworths Group Ltd
[2025] NSWPIC 260
•11 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Organ v Woolworths Group Ltd [2025] NSWPIC 260 |
| APPLICANT: | Parisa Organ |
| RESPONDENT: | Woolworths Group Limited |
| MEMBER: | Diana Benk |
| DATE OF DECISION: | 11 June 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; respondent accepted applicant suffered an injury to her cervical spine and then lumbar spine in two separate incidents; applicant now seeks to claim lump sum compensation aggregating injuries to the lumbar and cervical spine; without aggregation does not meet threshold required for lump sum compensation pursuant to section 66; respondent disputed aggregation could occur as the injuries resulted from two distinct events and were two separate pathologies; Department of Juvenile Justice v Edmed followed; Held – the injuries involved separate pathology arising from separate injurious events; accordingly they could not be referred for assessment together. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an injury to her neck and right shoulder on 20 May 2022. 2. The applicant suffered an injury to her lower back on 28 May 2022. 3. Award for the respondent with respect to the claim pursuant to s 66 of the Workers Compensation Act1987. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
There is no dispute Parisa Organ (the applicant) (aka as Elena Organ and Parisa Golmohammadi) suffered injury to the neck and right shoulder on 20 May 2022 and her lower back on 28 May 2022 in the course of her employment with Woolworths (the respondent).
The respondent has accepted liability for each claim. The applicant now claims lump sum compensation on the basis of aggregated impairment assessments for the cervical and lumbar spine (neck and back).
The respondent asserts aggregation cannot occur because;
(a) injury to the cervical spine and lumbar spine arose from two separate workplace injuries;
(b) s 322 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) prevents aggregation of injuries where they did not occur in the same incident or as a result of the same injury, and
(c) the medical evidence reveals that the injuries to the neck and back arose from two distinct incidents resulting in two distinct pathologies.
The sole issue for determination is whether ‘injury’ to the neck and back and any resultant impairment can be aggregated. Conciliation was unsuccessful.
At arbitration, Mr Necovski of counsel instructed by Mr Nemme represented the applicant. Mr Saleh of counsel instructed by Mr Quillan represented the respondent. Ms Perez was the insurer representative.
The evidence before the Personal Injury Commission (Commission) consisted of the Application to Resolve a Dispute and its annexures (ARD) and the Reply and its annexures. No oral evidence was called.
Applicant’s evidence
In her statement dated 11 November 2024 the applicant confirms she worked for the respondent as a retail assistant on a part-time basis averaging about 38 hours per week. The work was nominated as repetitive, heavy and required much physical exertion in a time sensitive environment. There was frequent bending, lifting, stooping, reaching overhead and packing and carrying with items ranging between 500g to 20kg in weight. She recalls “over time” she noticed a gradual onset of mild pain in the neck, right shoulder and lower back during and after shifts. She did not lodge a claim as she did not fully understand the “cumulative impact of my work on my body or the process of making a claim”.[1]
[1] Folio 2 ARD – paragraph 15.
She did however make a claim for neck injury on 20 May 2022 which occurred after lifting a large heavy 24 pack of drinks to place it on a shelf at shoulder height stating it was similar to pain that she had whilst performing her general tasks but worse.
She also made a separate claim for a back injury which occurred on 28 May 2022. This occurred when lifting a slab of bottled water but the applicant maintains the pain was similar to other events that arose during her work but this incident “marked a significant increase in its intensity and impact”.
Her statement stresses the impacts of these injuries on her activities of daily living and reinforces that “these injuries are not the result of isolated or separate incidents but rather stem from the cumulative, repetitive, and strenuous demands of my employment”.[2]
[2] Folio 4 ARD – paragraph 34.
Carl Organ, the applicant’s husband, in his statement dated 21 February 2025 confirms the nature of employment and that he witnessed pain and complaints prior to the reported injuries on 20 May 2022 and 28 May 2022. He declares “her condition is a direct result of the repetitive nature and physical demands of her employment, not just two isolated events”. He confirms the impacts of the injury on the activities of daily living.
Medical evidence and submissions
During the course of submissions, counsel slavishly and exhaustively recited the medical evidence. The submissions are summarised below and where medical evidence was referred to, I have extracted the relevant paragraphs from the documents.
Counsel for the applicant submitted:
(a) the neck and back injuries do not arise from isolated events but rather are cumulative reflecting the nature and conditions of employment with the respondent. They therefore must be treated as one injury and aggregated;
(b) the last date of work was 28 May 2022 and this should be the deemed date of injury;
(c) the duties and employment responsibilities of the applicant are of critical importance and warrant close examination. It is clear from the applicant’s statement that her work was repetitive, heavy and time sensitive and required sustained physical effort. Importantly, this evidence is unchallenged by the respondent;
(d) the applicant rarely complained to her treating doctor, rather accepted that the aches and pains in her neck and back were part and parcel of her duties that would resolve largely with rest;
(e) the respondent’s own evidence has not established that the neck and back conditions arise from frank injuries, rather suggests that they are progressive conditions;
(f) Dr Bodel in his report dated 25 March 2024 clearly indicates that the injuries arise out of the nature and conditions relevantly (unedited);
“the nature of the work has caused the soft tissue injury to the neck and back. The specific events on 20 May 2022 for the neck and right arm are the triggering event for the soft tissue injury. The episode on 28 May 2022 is the triggering event for the lower part of the back with the right leg pain…
The nature of the work which required “heavy lifting and frequent bending and twisting have made worse the cervical spine and lumbar spine pathology…[3]
Clinically it appears that the lady’s injuries have occurred as a consequence of the nature and conditions of her work over the period of time at Woolworths Group Limited and the nature of work is the instigating factor in these injuries. I would in that case therefore amalgamate the two ratings to give a 12% whole person impairment overall for the injuries to the neck and back as a result of the nature and conditions of her work at Woolworths”;[4]
(g) the opinion of Dr Bodel should be preferred as he is an orthopaedic surgeon. The respondent’s qualified expert is a neurosurgeon who is not qualified to assess the cumulative effects of heavy employment;
(h) the applicant has presented a consistent history. Dr Chan, general practitioner, in her report dated 25 February 2025[5] is consistent with the opinion of Dr Bodel relevantly stated (unedited);
“the initial consultation for cervical and lumbar spine was on 7th October 2022
Both injuries were related to long period of repetitive heavy lifting at work, first reported to another medical practitioner on 20 May 2022 for her neck pain and associated right hand/ wrist symptoms, then later reported to have lower back on 28 May 2022.
Parisa was working for the online shopping department of the Woolworths Supermarket, which involved multiple repeated heavy liftings, and pain reported after prolonged working…
On the balance of probabilities, it is more likely that Parisa’s injury was related to repetitive heavy lifting than single events. In addition to no reported single incident, her symptoms was more correlated with the capacity, including the number of hours of work per day, ie. More severe pain after increasing capacity/hours of work, with some relieve after decreasing. Therefore it is more likely related to repetitive in nature than single incident”;
(i) if the respondent intends to present a different argument on causation, then it bears the onus of bringing the evidence to prove that argument: Watts v Rake[6] (Watts), and
(j) the applicant has discharged her onus. The matter should now be referred to the President for referral to a Medical Assessor for assessment of the whole person impairment dispute as claimed.
[3] Folio 39 ARD.
[4] Folio 43 ARD.
[5] Folio 82 ARD.
[6] Watts v Rake [1960] HCA 58; 108 CLR 158; [1961] ALR 333.
Counsel for the respondent submitted:
(a) the contemporaneous evidence is crucial in this matter. The nature and conditions claim is an invention created in late 2023 or early 2024;
(b) on 20 May 2022, the first frank incident occurred, that is when the applicant sustained an injury to her neck and right shoulder after lifting a 24 pack of drinks whilst completing an online order. She lodged a claim on 16 June 2022. The insurer accepted liability. The claim made on 16 June 2022 relates to the injury on 20 May 2022 and is silent in relation to any lower back symptoms, confining injury to the neck and right shoulder only;[7]
[7] Folio 16-17 ARD.
(c) the applicant underwent conservative treatment including physiotherapy by Jeanette Robertson. Cervical spine tests showed normal pain free mobility and function.[8] On 3 February 2023, the treatment for the cervical spine ceased and it was recommended that the claim be closed;[9]
[8] Folio 58 ARD.
[9] Folio 171 ARD.
(d) on 28 May 2022, the applicant sustained and claimed an injury to her back also whilst bending and twisting with a slab of drinks. This was the subject of a separate and accepted claim. The claim form completed on 16 June 2022 refers to injury to the lower back and left leg on the right side. There was no mention of injury to the neck or right shoulder on that date;
(e) in a recurrence form[10] dated 10 July 2023, the recurrence was claimed to the neck only;
[10] Folio 19 ARD.
(f) Dr Edgar was qualified by the respondent. He reported on 8 August 2022[11] in relation to the lower back only and reported;
[11] Folio 23 ARD.
“pain to the centre of the lower back, more on the right side, which radiates down the back of the right leg through the thigh and calf as far as the heel and sole of the foot. The left lower limb is normal, although there is a recent ache due to her favouring the use of that limb…
Elena had an acute onset of lower back pain during the course of her shift at work on 28th May 2022. She describes bending forwards to get an item from a bottom shelf, and when she went to get up to stand, she experienced a sudden, sharp burning pain from the base of her spine and down into the right leg”;
(g) given the contemporaneous nature of this report, that is only three months after the onset of symptoms, this report should be preferred. No previous back or spine injuries were recorded and he diagnosed (unedited):
“Clinically, she has a sudden onset of low back and right leg pain, which would suggest either an L4/5 or and L5/S1 acute disc prolapse with resulting lumbar nerve (L5 or S1) compression, producing the sciatica…”[12]
[12] Folio 24 ARD.
It is possible that a degree of degenerative disc disease was present prior to May this year, but the history is that there was no low back pain in the past. She was physically active until recently. Therefore, it would appear based on the history and physical examination that the employment conditions, with repeated bending and stooping, and then standing again, has accelerated the development of lumbar degenerative changes (lumbar spondylosis) and a subsequent exacerbation caused the current clinical situation and resulting loss of work capacity”;[13]
[13] Folio 24 ARD.
(h) there is a further report by Dr Edgar dated 8 August 2022[14] relating to the cervical spine and right shoulder injury. At that time he took the following history;
[14] Folio 28 ARD.
“Elena had an acute onset of this pain during the course of her shift at work on 20th May 2022. She reports picking up a 24-pack of Woolworths water to put it into a trolley, and she experienced a sudden and sharp pain in the right shoulder region. She had never experienced pain in that joint before. She paused her work for a short period, and informed her manager of the problem. She managed to finish her shift, and continued working. Initially, a localised shoulder joint problem was suspected, and her work arranged for her to see a physiotherapist two days later. However, after two visits, her physiotherapist thought that the problem actually was coming from the cervical spine, and directed Elena to her general practitioner”;
(i) radiological reports confirmed the cervical spine as having a normal study whilst in the lumbar spine there was a conclusion of L4-5 and L5-S1 minimal disc bulge. No neural impingement.[15] This is relevant as concerns the pathology of injury;
[15] Folio 118 – 119 ARD.
(j) Dr Bodel’s report is best described as being “consistently inconsistent”. [16] The main body report refers to two frank incidents yet abruptly concludes the injuries are due to nature and conditions of employment. Relevantly (unedited);
[16] Folio 35 ARD.
“Ms Organ first suffered the injury at work on 20 May 2022. She had been at the company for about 2½ years at that stage and she worked permanent part-time about 38 hours a week. She was picking a fairly bulky load that day and she seems to recall a 24-pack of cans of drink. She had to place this on a particular shelf where that particular order was being assembled and this was at about shoulder height. She developed pain in the neck and right shoulder as she did this.
She was near the break at the end of her day and she went and reported the matter to her supervisor. She was sore in the neck and shoulder and she went home and was rostered off for the next few days.
She then has some physiotherapy organized by the employer, but that did not help.
Unfortunately eight days later on 28 May 2022, she was again lifting a large “slab of bottled water”. She felt back pain and right leg pain on that occasion and she again had physiotherapy….
This lady has been previously well and not being treated and not being treated for other illnesses.[17]
[17] Folio 37 ARD.
This lady suffered a soft tissue injury to her neck and right shoulder in an incident at work on 20 May 2022 and injury to the lower part of the back and right leg on 28 May 2022. The original injury was caused by lifting at work and she has a soft tissue injury only to the neck and the shoulder but no reported evidence of disc pathology and no clinical sign of radiculopathy.[18] (my emphasis)
[18] Folio 38 ARD.
The second injury on 28 May 2022, there is minor bulging of the disc at L4/5 and L5/S1 but again no clinical sign of radiculopathy. (my emphasis) I am satisfied that these two events have caused the injuries in both areas.[19]
[19] Folio 39 ARD.
The nature of the work has caused the soft tissue injury to the neck and the back. The specific events on 20 May 2022 for the neck and the right arm are the triggering event for the soft tissue injury. The episode on 28 May 2022 is the triggering event for the lower part of the back with the right leg pain;[20]
[20] Folio 39 ARD.
(k) despite taking a history of two separate incidents he then provides a summation which is inconsistent with the case history and indeed his own summary of events relevantly (unedited):
“The injury to the cervical spine is not a disease provisions injury. It is a soft tissue injury caused by the heavy and repetitive lifting. Employment is still a substantial contributing factor to the injury to the neck and also an injury to the lower part of the back.”
(l) the above assessment of injury is inconsistent with the pleaded injury in the ARD relevantly; (unedited)
“….the Applicant claims a lumbar spine and cervical spine injury as a disease injury contracted by gradual process, and/or, in the alternative, or in addition to the above, an injury that consistent in the aggravation acceleration, exacerbation or deterioration of a disease to her cervical spine and lumbar spine manifesting on 20 May 2022 and 28 May 2022”;[21]
[21] Folio 7 – ARD.
(m) the respondent does not dispute the injuries resulting in two frank incidents. The applicant had many opportunities throughout the entire life of the claim to report that she had symptoms prior to 20 May 2022 in regards to her cervical spine, right shoulder and lower back but did not do so. This is supported by the clinical notes of the general practitioner;
(n) in a contemporaneous report dated 7 July 2022, Dr Ragavan, rehabilitation consultant reported (unedited):
“History of presenting condition: Thanks for referring the above patient who comes with a history of 2 work injuries, the first one on 20 May and the second one on 28 May this year. Concerning the first work injury, she was working at a super market, lifting boxes of about 10 kg from the shelves and transferring into a trolley when she felt an acute pain in her right shoulder, right upper limb up to the wrist and thumb. She saw her manager and rested for about half an hour then she struggled to finish that shift….[22]
[22] Folio 49 – ARD.
The second injury goes back to 28 May. She was bending at work and suddenly felt a low back pain radiating down the right lower limb up to the toes and accompanied by elements of paraesthesia. Since then she has been having a continued type of pain, rated around 6-7/10;[23]
[23] Folio 50 – ARD.
(o) Dr Gupta, rehabilitation medicine specialist in his report dated
23 September 2022[24] reports (unedited);[24] Folio 52 ARD.
“On 20 May 2022, she reports of picking up a customer package and experiencing a sharp pain in the neck to the right shoulder. She also reported of seeing a physiotherapist in Taree on two occasions.
She had another injury on 28 May 2022 when she was again lifting heavy package when she suddenly experienced pain in the right lower limb with radiculopathy to the back of the leg. The pain started in the right lumbosacral spine with radiculopathy”;
(p) a similar history is recorded in a subsequent report dated 30 June 2023;[25]
[25] Folio 62 ARD.
(q) Dr Rob Kuru, spinal surgeon reported on 20 October 2022[26] and relevantly stated (unedited):
[26] Folio 54 ARD.
“She was repetitively carrying stock over the day at Woolworths and developed pain in the lateral side of her neck. This was on the 20th May. She had a few episodes of treatments from a physiotherapist and was told she had pinched a nerve.
Some eight days later again carrying stock she developed pain in her lower back. She has persistent neck and back pain”;
(r) A/Prof Nimeshan Geevasinga in his report dated 26 October 2023 reports relating to symptoms in the cervical spine and offers the following history (unedited):
“Unfortunately she sustained an injury on 20 May 2022 when she was lifting heavy groceries. She was working at Woolworth at the time in the online department. Since this episode, she has been troubled by occipital headaches, neck pain and arm pain. The predominant issue at this stage is ongoing headaches. I am sending this letter to her WorkCover after her verbal consent”;[27]
[27] Folio 72 ARD.
(s) these reports are in distinct contrast to the report of Dr Yin Chan dated
25 February 2025[28] (summarised in paragraph 13 (h) of these reasons);[28] Folio 82-83 ARD.
(t) the reports of Dr Bodel and Dr Chan are standalone and belated opinions. It supports the artificial construct of circumstances best labelled as an invention and is inconsistent with the clinical and contemporaneous reports of the various specialists and should hold little value. It is noted that the applicant had seen
Dr Chan previously in May 2021[29] but the first consultation regarding any workers compensation matter did not take place until 7 October 2022[30] where it was recorded (unedited):[29] Folio 233 ARD.
[30] Folio 232 ARD.
“Visit type: Surgery Consultation Patient came in with Chloe (rehab consult)
WC
DOI 20 May 22
working for long period of time, no specific trauma head down, heavy lifting
oin 28 May 22 - lower back pain started
occupation - online department in Woolies”;
(u) the report of Justine Clarke, Clinical psychologist dated 21 October 2024[31] took the following history (unedited);
“Parisa sustained two work-related injuries in May 2022 while working. The first injury occurred on 20th May 2022, resulting in neck pain that radiated to her shoulder. Less than a week later, on 28th May 2022, she sustained a second injury to her lower back while lifting.”;
(v) the applicant’s statement is unreliable as it was prepared more than two years after the injury and is inconsistent with the claims that she made at the time and the treatment sought and provided. This is especially so because she said:
“Over time, I noticed a gradual onset of mild pain in my neck, right shoulder, and lower back during and after shifts. I experienced intermittent episodes of pain while performing my duties, often feeling a combination of stiffness and discomfort that seemed to worsen overtime.”[32]
I did not initially report this or lodge a claim, as I did not fully understand the cumulative impact of my work on my body or the process of making a claim. The pain developed gradually and was not tied to any immediate or single event, which made it difficult for me to link it directly to my work at the time”;[33]
(w) Dr Edgar does assess a 12% WPI in his most recent report dated
19 October 2024[34] and whilst he has ultimately combined assessments relating to the cervical and lumbar spine, the history clearly demonstrates two separate injurious events, and(x) the opinion of Dr Edgar should be preferred. He assessed the application only three months after her injury in 2022. His opinion is consistent with all of the treatment specialists who contemporaneously reported in this matter. Dr Bodel’s report should not carry any weight.
[31] Folio 235-237 ARD.
[32] Paragraph 15 – Folio 2.
[33] Paragraph 16- Folio 2.
In reply, the applicant submitted;
(a) the respondent’s summation of the contemporaneous evidence is irrelevant as the issue is a factual one and requires analysis of what tasks were performed, how frequently were they done and what environmental factors were involved? Once these questions have been answered only then can the medical causation argument be explored;
(b) the evidence of the treating practitioner’s should be given limited weight as none have analysed the nature and conditions of employment and have failed to take a complete history of the tasks and their frequency. None made due enquiry about the nature of the work rather only acted on what the applicant reported at the time of the presentation, and
(c) the respondent submits that the claim is an invention but has stopped short of nominating the inventor. The applicant is a witness of credit. The claims process is unfamiliar to her. She has done her best to describe her symptoms relying on her medical practitioners and employer. The respondent’s allegation of invention is without foundation.
APPLICATION OF THE LAW, FINDINGS AND REASONS
Section 4 of the 1987 Act defines “injury” as follows:
(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….
The applicant argues that the claims should be aggregated. This can only be done if s 322 of the 1998 Act is satisfied. This section states relevantly;
“(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.
(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”
In dealing with a number of incidents and whether one pathology arises, (that is one injury arose), Deputy President Roche in Department of Juvenile Justice v Edmed [2008] NSWCCPD 6 (Edmed) stated at paragraph 27:
“27. The difficulty arises when a worker suffers one pathology (‘injury’) as a result of several independent ‘incidents’ or injurious events. This situation is partly addressed in section 322(2), which provides that ‘impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.’ (emphasis added) The reference to ‘the same injury’ in section 322(2) cannot be a reference to ‘the same incident’ because that situation is dealt with in section 322(3). The expression ‘the same injury’ is not defined but it follows that if ‘injury’ in section 322(3) means ‘pathology’ (as it must), then, for the section to be logically consistent, it must mean the same in section 322(2). If ‘injury’ in section 322(2) means ‘pathology’ then, for section 322(2) to be consistent with section 322(3), impairments resulting from ‘the same injury’ (the same pathology) are to be ‘assessed’ together regardless of whether they arise from the same ‘incident’ or separate incident.”
At paragraph 38 he continued;
“… To be entitled to compensation for pain and suffering the worker must establish that he or she has sustained ‘an injury’ (that is, one injury in either one incident or one pathology in two or more incidents) that has ‘resulted in’ a degree of permanent impairment of 10 per cent or more.”[35]
At paragraph 39 he concluded;
“… Impairments that result from ‘the same injury’ (pathology) are to be assessed together even if they have resulted from different incidents, but the pathology (injury) resulting from each incident must be identical (section 322(2)).”[36]
Some difficulty arises in the determination of this matter as the medical evidence referred to “nature and conditions of employment” and “frank injury”. These terms do not appear in the legislation and the term “nature and conditions of employment” in particular has been subjected to criticism at appellate level.[37] The expressions are commonly taken to refer to, or be synonymous with, a “disease” injury and a “personal” injury respectively, although this is not correct and can be misleading. In reality, the “nature and conditions of employment” means the receipt of a series of micro-traumata due to the employment duties undertaken over time (which mechanism can produce a “personal injury”) while a “frank injury” is a specific traumatic incident (which can consist in the aggravation of a disease).[38] In order to avoid the potential errors that can arise from the use of these two expressions, particularly in the context of this case, I will return to the definitions of “injury” set out in s 4 of the 1987 Act.
[37] NSW Police Force v Gurnhill [2014] NSWWCCPD 12.
[38] Strasberger Enterprises Pty Ltd t/as Quix Food Stores v Serna [2008] NSWCA 354, in particular at [20] and [22].
It is well established that a “personal injury” within the meaning of s 4(a) of the 1987 Act is made out where, there is some definite or distinct “physiological change” or “physiological disturbance” for the worse which, if not sudden, is at least “identifiable”.[39] (May).
[39] Military Rehabilitation and Compensation Commission v May [2016].
A “disease”, however and for the purposes of s 4(b) of the 1987 Act, has been described as “any abnormal physical or mental condition that is not purely transient”[40] and it is now well established that a relevant aggravation injury (which for present purposes shall include exacerbation or deterioration) need not have any effect on the underlying pre-existing disease itself and that it will be sufficient if the symptoms of the disease have been increased in the course of employment and the employment has been the main contributing factor to that increase in symptoms.[41] Moreover, employment need only be the main contributing factor to the aggravation and need not contribute to the causation or progression of the underlying disease itself.[42]
[40] per Windeyer J Commissioner for Railways v Bain [1968] HCA 5.
[41] see, for example, Federal Broom Co Pty Ltd v Semlitch [1964] HCA34 and Rural Press Ltd v Hancock [2009] NSWWCCPD 160.
[42] see, for example, Murray v Shillingsworth [2006] NSWLR 451 and State Transit Authority of NSW v El-Achi [2015] NSWWCCPD 71.
Further, “an incident (an injurious event) is only a mechanism for suffering an injury and is not itself a section 4 injury” and that “the relevant ‘injury’ in section 4 is the pathology (my emphasis) that has arisen out of or in the course of employment”.[43] This is not to say that the mechanism of injury will not be relevant to issues concerning liability, but what must be assessed is the consequence of injury specifically in terms of pathology. Thus, the first and critical matter to be determined is the nature of the physical or pathological “injury” for which compensation is being sought and the consideration of whether such injury was “received” in compensable circumstances is directed to that “pathology”.
[43] Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79.
Before embarking on discernment, I feel obliged to record that the qualified evidence of the applicant leaves much to be desired. I agree with the respondent that the report of Dr Bodel is “consistently inconsistent”. Dr Bodel takes a history of the two separate injuries, the first being to the neck and right shoulder and its effects and then the next injury eight days later impacting the back and right leg only. Then for reasons that are unclear, he proceeds to aggregate impairments of the neck and back as he maintains that injury was due to the nature and conditions of his employment, a position which I find to be inconsistent with the documented history of injury and its management prior to his assessment, which took place almost two years after the events in the workplace.
The applicant in submissions, placed a heavy emphasis on Dr Chan’s report. I found this report to be of little probative value as Dr Chan confirms she did not treat the applicant at the time of the injuries in May 2022, first undertaking her assessment on 7 October 2022. She did confirm however that the applicant was her patient and review of the clinical notes reveal no complaint of neck and back symptoms until October 2022, despite multiple prior attendances admittedly in 2021.
Having made these observations and findings in relation to the medical evidence, it is appropriate to recall that the applicant carries the onus of establishing her case on the balance of probabilities, meaning that I must feel a sense of actual persuasion or affirmative satisfaction that her case has been made out. I am not, however, required to be satisfied to a degree of medical or scientific certainty.
Date of injury to the cervical spine
The applicant maintains that the date of injury for the cervical spine should be 28 May 2022 and not 20 May 2022 as the nature and conditions of her employment would deem the injury to have occurred on that date by applying the provisions of s 16 of the 1987 Act.
I find that the medical evidence prevents such a finding. This is because the contemporaneous medical reports of Dr Ragavan, Dr Gupta, Dr Kuru, A/Prof Geevasinga, Jeanette Robinson, (physiotherapist) and the history taken by Justine Clark (psychologist) clearly report that the injury to the neck was a stand-alone frank incident taking place on
20 May 2022. The medical records are silent of any complaint either prior to or subsequent to that date relating to the cervical spine, until the involvement of Dr Bodel whose opinion I have found to be consistently inconsistent. Dr Bodel does not adequately explain his conclusion that the neck and back symptoms arise from the nature and conditions of employment, particularly when his report quite correctly articulated the different mechanisms of injury on 20 May 2022 and 28 May 2022 to the cervical and lumbar spine respectively. I prefer the contemporaneous reports of these treating specialists who have taken into account the presence of neck symptoms and dealt with them from a diagnostic point of view.An assessment of the pathology is relevant here. The neck injury has been consistently described by the treating specialists as an acute injury soft tissue in nature, confirmed on radiology to be the case. However, the back injury has been diagnosed as an acute disc prolapse or bulge also identified on radiology. It is clear that there are two very different pathologies.
I have considered the statement of Karl Organ, the applicant’s husband. He has observed the applicant’s complaints of aches and pains after a shift but does not pronounce that he is medically qualified or that he has any connection to the respondent, in which he would have a knowledge of the day-to-day physical requirements. For these reasons, I find his statement has limited probative value.
I acknowledge the submissions of the applicant that the contemporaneous evidence is not the be all and end all in this matter but disagree. I find that the contemporaneous evidence is consistent with the two separate claims made. It refers to two separate incidents and treatment for two separate pathologies.
I also acknowledge the applicant’s statement in that she understands the nature of her injuries to now be cumulative in process and that she had failed to appreciate this earlier. Whilst this may be her current understanding, this does not reconcile with the contemporaneous evidence summarised above. I am mindful of the case law dealing with matters where there is a conflict between the contemporaneous evidence and current recall of events. I am not persuaded the applicant’s present recollection (two year post injury) is preferable and carries greater weight than the contemporaneous documents.[44] I would not go as far as to say that the applicant is an inventor of this claim as suggested by the respondent, however I acknowledge the passage of time and fallibility of memory which I find accounts for inconsistencies between current recollection and actual events. [45]
[44] Onassis v Vergottis [1968] 2 Lloyds Rep 403 at 431.
[45] Watson v Foxman (1995) 49 NSWLR 315 at 319.
Given the above, I do not accept that the applicant’s injuries to the neck and back resulted from the same incident or from the same pathology. The relevant incidents of injury to the neck and back were each caused by a particular and specific activity at different times. An incident or series of incident is distinct from the overall employment. These incidents cannot and did not happen simultaneously. Applying Edmed, it is not possible to aggregate assessments that do not result from the same incident and which do not result from the same pathology. On the balance of probabilities, I find that the applicant has not satisfied the test which would enable aggregation of her impairments, as set out in Edmed. It follows from the findings above, that because of the threshold in s 66(1) of the 1987 Act, the applicant is not entitled to recover lump sum compensation in respect of the injuries to the neck on 20 May 2022 and the injury to her back on 28 May 2022.
SUMMARY
For the reasons above, I make the findings and orders set out on page 1 of the Certificate of Determination.
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