Oyston v Gunlake Concrete NSW Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Oyston v Gunlake Concrete NSW Pty Ltd [2023] NSWPIC 461
APPLICANT:	Anthony Oyston
RESPONDENT:	Gunlake Concrete Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	11 September 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for permanent impairment compensation pursuant to section 66 as a result of injury to the right upper extremity (shoulder); the applicant relied on a frank incident of injury to the right shoulder, and the ‘nature and conditions’ of his employment with the respondent employer over the period from the commencement of that employment as a cement truck driver until the date of the frank incident; the applicant also sought to amend the Application to resolve a dispute (ARD) at the hearing to include an earlier frank incident causing less serious injury to the right shoulder; the respondent conceded the later frank incident was the main contributing factor causing aggravation, acceleration, exacerbation or deterioration of a long standing degenerative condition in the right shoulder, but opposed the applicant relying on the nature and conditions of his employment, and also the applicant’s request to amend the ARD to rely on the earlier, less serious, injury to the right shoulder; Held – finding that the injury conceded by the respondent was the main contributing factor causing aggravation, acceleration, exacerbation or deterioration of a long standing degenerative condition in the right shoulder, but that the applicant failed to discharge the onus on him to show that the nature and conditions of his employment should be included with the frank injury as the main contributing factor to injury; the applicant’s request to amend the ARD to refer to the earlier, less serious, date of injury to the right shoulder rejected; the matter was referred to a Medical Assessor for assessment of whole person impairment in accordance with the above findings.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury on 6 November 2018 to his right upper extremity (shoulder) arising out of or in the course of his employment with the respondent. 2. The injury sustained by the applicant was the aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative condition in the right shoulder to which the applicant’s employment with the respondent was the main contributing factor. 3. The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury on 6 November 2018 to the right upper extremity (shoulder), and scarring. 4. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) this Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

Anthony Oyston (the applicant/Mr Oyston) seeks compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury arising out of or in the course of his employment by Gunlake Concrete NSW Pty Ltd (the respondent) as a concrete truck driver over the period from 2014 until 6 November 2018.
In the Application to Resolve a Dispute (ARD) commencing the proceedings Mr Oyston provides the following injury description:
“The applicant has suffered an aggravation, acceleration, exacerbation or deterioration of a disease process in his right shoulder, the main contributing factors to which are both a frank injury on 6/11/2018 and the heavy nature and conditions of his employment with the respondent from 2014 up to that date.”
The “Date of Injury” in the ARD is particularised as “6/11/2018”.
In his statement dated 20 June 2023[1] the applicant describes the “fairly heavy and …repetitive use” of his upper body and arms in the course of his employment, which involved continually using his right arm to lift his body weight up onto the step at the back of the truck to set up the concrete delivery mechanism, and also using his right arm to lift his body weight up into the cabin of the truck to drive it. He also had to manhandle a heavy chute, weighing approximately 10kg, at the rear of the truck which was used to deliver concrete to the appropriate areas of the construction site. This sometimes had to be done during the actual concrete delivery. After delivery, any remaining concrete had to be cleaned from the chute before leaving the site.
[1] ARD p 3.
The applicant suffered an earlier injury to his right shoulder on 24 April 2018 after he had cleaned a concrete chute. As he was carrying it back to the truck he tripped on uneven ground and fell, landing on his right elbow, jarring his right shoulder and back. The incident was reported to his employer, but Mr Oyston did not lodge a workers compensation claim until 12 June 2018, which was accepted by the respondent’s insurer, EML. The applicant consulted his general practitioner and had ultrasound guided injections in his right shoulder on 19 July 2018 and 30 August 2018. He was also referred to orthopaedic surgeon, Dr Fred Nouh, for a consultation on 13 August 2018. Dr Nouh recommended conservative treatment, including physiotherapy and further injections, if pain failed to resolve. Mr Oyston had no time off work following this incident, nor did he have ongoing problems with his back and right elbow.
The applicant suffered further injury to his right shoulder on 6 November 2018. As he lifted himself up onto the metal structure at the back of his truck, his foot slipped off that structure and he fell. Mr Oyston was still holding on to the grab bar at the back of the truck, and therefore his right shoulder had to hold his body weight until he could regain another foothold on the structure.
The applicant returned to see his general practitioner, Dr Pate, and was referred back to
Dr Nouh, who had previously arranged an MRI scan of the right shoulder to check on the injury of 24 April 2018. The MRI scan was carried out on 9 November 2018. Dr Nouh referred the applicant to Associate Professor Haber (Dr Haber), a specialist shoulder surgeon, who performed right total shoulder replacement surgery on 27 March 2019.
The applicant was certified unfit for work from 9 November 2018. He was off work for three months following the surgery on 27 March 2019, and by 15 October 2019 had returned to work performing his pre-injury duties. However he says that he struggled with work daily as he did not have the same level of strength in his right arm which he had before the surgery. He retired from work in early 2020.
The applicant was independently medically examined by Dr James Bodel, orthopaedic surgeon, on 19 April 2022, who produced a report dated 9 August 2022.[2] Dr Bodel said when asked about the relationship between the injury on 9 [sic, 6] November 2018 and any employment duties in which Mr Oyston was engaged during the course of his employment with the respondent said:
“There is a direct causal link between the episode on 09 November 2018 and his employment duties and that is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to the disease process in the region of the right shoulder which has lead [sic, led] to the need for the shoulder replacement.”[3]
[2] ARD p 29.
[3] ARD p 33.
When asked if the applicant was found to be suffering from a degenerative condition or disease process, the identity of any such process, and whether the accident on 6 November 2018 and/or the nature and conditions of the applicant’s employment with the respondent can be said to have been the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of that condition, Dr Bodel said:
“There is a degenerative state and the change in the region of the right shoulder is a disease process of gradual onset.
It has not specifically been caused by work but the nature and conditions of his work and the specific event on 06 November 2018 has caused the aggravation, acceleration, exacerbation and deterioration of that disease process and has lead [sic, led] to the need for the total shoulder replacement.”[4]
[4] ARD p 33.
The applicant was independently medical examined by Dr Robin Diebold, orthopaedic surgeon, on 7 November 2022 who produced a report dated 14 November 2022.[5] Dr Diebold said that the diagnosis from the injury of 6 November 2018 is of an aggravation of glenohumeral osteoarthritis of the right shoulder, and that MRI findings demonstrated chronic, advanced, long-standing findings of glenohumeral arthritis. He said that the location of pain and symptoms is consistent with an aggravation of Mr Oysten’s condition. Dr Diebold also said:
“There was a continuous chain of symptoms after the injury until his surgery. The
ongoing condition of his right shoulder is substantially due to the effects of the work
related injury on 6 November 2018.”[6]
[5] Reply p 2.
[6] Reply p 8.
The matter was listed for a preliminary conference before me on 8 August 2023 when the respondent objected to referral to a Medical Assessor for assessment of permanent impairment on the basis of the frank injury of 6 November 2018, and the nature and conditions of the applicant’s employment with the respondent over the period 2014 to
6 November 2019 causing aggravation, acceleration, exacerbation or deterioration of a disease process in the right shoulder.
The parties were directed to lodge and serve written submissions, and the matter stood over for conciliation/arbitration.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Should the ARD be amended to include reference to the frank injury to the right shoulder on 24 April 2018, in addition to the injury on 6 November 2018 and the nature and conditions of the applicant’s employment with the respondent over the period 2014 to 6 November 2018?
(b) Should referral of the matter to a Medical Assessor for assessment of permanent impairment be on the basis of injury sustained on 6 November 2018, and injury as a result of nature and conditions of the applicant’s employment with the respondent over the period 2014 to 6 November 2018?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a conciliation/arbitration hearing on 6 September 2023 conducted by video link. Mr Gaitanis of counsel appeared for the applicant briefed by Ms Branch. The applicant also attended. Mr Stiles of counsel appeared for the respondent briefed by
Ms McCoy. A representative of EML attended.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attachments;
(c)    applicant’s written submissions dated 21 August 2021, and
(d)    respondent’s written submissions dated 4 September 2023.

Oral evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The parties made oral submissions on 6 September 2023, and those submissions, together with the written submissions, are summarised hereunder.

Applicant

Notwithstanding the fact that Dr Bodel says that the injury of 24 April 2018 was a minor event, and that there does not appear to be any pathology flowing as a result of that incident, the applicant submits that, for abundant caution, the ARD should be amended to refer to this injury.
The applicant refers to the heavy nature of his work described at [9] – [14] of his statement dated 23 June 2023, as described above, and noting that he sometimes worked 60 hours a week.
The applicant submits that it is plausible, indeed compelling, that he suffered an aggravation or acceleration of the disease process in his right shoulder whilst he performed that work from 2014.
The applicant submits that the allegation of an aggravation of a disease process because of the nature of the work over time is more relevant when one considers the opinion of
Dr Diebold dated 14 November 2022. Dr Diebold provides a diagnosis that the
6 November 2018 injury was an aggravation of glenohumeral osteoarthritis of the right shoulder. The applicant submits that the MRI scan demonstrated chronic, advanced, long-standing findings of glenohumeral arthritis, and that it is entirely inappropriate for the applicant to be precluded from proceeding with his allegation of an aggravation of the disease process in circumstances where the respondent’s IME specifically vindicates the force of that position.
The applicant notes that Dr Diebold refers to the allegations of the nature and conditions of his work yet rejects it as playing a part in his condition. The applicant submits that he should be permitted to plead his case as is appropriate. There can be no prejudice to the respondent when the claim alleging nature and conditions of employment was served almost 10 months before proceedings were commenced by the applicant.
The applicant submits that in light of the fact that Dr Diebold has assessed a 50% deductible for pre-existing condition such as the arthritis, it is not appropriate for the dispute to proceed to a Medical Assessor without the circumstances of the nature and conditions of the employment duties. The applicant submits that this allegation accounts for the deductible applied by Dr Diebold.
The applicant submits that not permitting him to rely on the nature and conditions of his employment as being causative of injury would prejudice him, and would present the respondent with an unfair forensic advantage, having regard to the opinion of Dr Diebold.
The applicant refers to the MRI scan dated 9 November 2018 and CT scan dated
[7] ARD pp 55 and 66.
31 January 2019,[7] showing long standing pathology in the right shoulder. He also notes no radiological investigation prior to the incident of 6 November 2018, apart from the two ultrasound guided injections in July and August 2018, following the injury of 24 April 2018. The applicant says that he was asymptomatic in the shoulder before this earlier injury, and concedes that there are no references in the clinical notes in evidence of complaint about the right shoulder before that date.
The applicant also submits that Dr Diebold, in discounting the effect of the nature and conditions of employment as being relevant to causation of injury, does not take a proper history of the heavy nature of his work, that is, the work described by him in addition to actually driving the truck.
The applicant submits that there should be an assessment by the Medical Assessor of the scarring from the shoulder surgery, as Dr Diebold assesses this scarring. This is conceded by the respondent.
The applicant concedes that the injury relied upon is pursuant to s 16 of the 1987 Act, that is, aggravation of a degenerative condition, rather than a s 15 injury, that is, causation of the degenerative condition itself.

Respondent

In opposing the amendment to the ARD proposed by the applicant to include reference to the injury dated 24 April 2018, the respondent submits that the applicant’s claim was always premised upon the frank incident of 6 November 2018 and the nature and conditions of employment referred to by Dr Bodel. There is no reference to the earlier date of injury in the letter of claim dated 4 October 2022,[8] or in the permanent impairment claim form dated
[8] ARD p 19.
[9] ARD p 16.
27 September 2022.[9] Further, Dr Bodel makes no assessment of any permanent impairment as a result of that injury. He does not give separate impairment assessments for the two frank incidents, that is, those of 24 April 2018 and 6 November 2018.
The respondent refers to the Court of Appeal decision in Skates v Hills Industries Ltd,[10] noting that while not directly relevant to the facts of the current case, the Court did emphasize the importance of identifying the correct body parts to be assessed by a Medical Assessor when a claim for permanent impairment as a result of injury is made.
[10] [2021] NSWCA 142 (Skates).
The respondent submits that there has been no assessment by Dr Diebold of any permanent impairment as a result of the earlier shoulder injury on 24 April 2018 and that to now include that injury in the referral to a Medical Assessor could have the added risk of the Medical Assessor giving a separate assessment of impairments for the two frank incidents, that is, those of 24 April 2018 and 6 November 2018.
The respondent submits that this case is quite clearly one as referred to in s 16 of the 1987 Act, and not s 15 of that Act. If the applicant wanted to rely on s 15 of the 1987 Act, that is inconsistent with the claimed period of the nature and conditions of employment ceasing on
6 November 2018 rather than when the applicant eventually ceased work in early 2020.
The respondent notes the concession by the applicant that there is no reference in the clinical notes in evidence of any complaint in respect of the left shoulder prior to the date of the first frank incident on 24 April 2018. This is confirmed by the history recorded by
[11] ARD p 63.
Dr Haber in his report dated 23 January 2019[11] that prior to the injuries of April and November 2018, the applicant was asymptomatic in the right shoulder.
The applicant also submits that the clinical records in evidence do show that the applicant appears to have developed osteoarthritis in other parts of his body, including his lumbar spine and bilateral knees, having undergone bilateral knee replacements in 2000 and 2001.
The respondent submits that the applicant does not include in his evidence any earlier complaint of difficulty in undertaking his duties for the respondent, that is, no complaint of pain, symptoms or attendances on medical practitioners.
This is also confirmed by reference to the report of Dr Nouh dated 13 August 2018,[12] which refers to the injury at work on 24 April 2018.
[12] ARD p 41.
The respondent submits that Dr Bodel’s report does not establish that the nature and conditions of employment caused the aggravation of the underlying pathology, and that the applicant’s own evidence does not adequately establish this.
The respondent submits that the evidence supports a finding that the aggravation was caused by the two accepted frank incidents, rather than a series of microtraumata and/or his regular employment duties. The clinical notes and records of the treating doctors support the respondent’s position in this regard.
The respondent submits that the frank incident of 6 November 2018 aggravated, accelerated, exacerbated or deteriorated the pre-existing disease process in the applicant’s right shoulder.
The respondent submits that the applicant should be referred to a Medical Assessor to assess permanent impairment attributable to the right upper extremity (shoulder) resulting from the injury that occurred on 6 November 2018.
The respondent concedes that in addition to referral of injury to the right upper extremity for assessment, scarring from the shoulder surgery in accordance with the table for the evaluation of minor skin impairment (TEMSKI) should also be referred to the Medical Assessor. Both Dr Bodel and Dr Diebold have assessed this.

Applicant in response

The applicant submits that there is uniformity between the findings of Dr Diebold and
Dr Bodel, noting that Dr Diebold diagnoses aggravation of a disease condition as a result of injury on 6 November 2018, and Dr Bodel makes the same finding, but attributes it to injury on 6 November 2018, and the nature and conditions of employment from 2014 to and including that date of injury.

The applicant submits that there is significant evidence of the heavy nature of his work, including that recorded by Dr Bodel, and by Dr Nouh in his report dated 13 August 2018.
The applicant submits that the matter should be remitted to the President for referral to a Medical Assessor for assessment of permanent impairment in relation to injury to the right upper extremity (shoulder) in respect of the nature and conditions of employment from 2104 to 6 November 2018, and the injury on 6 November 2018.

FINDINGS AND REASONS

Legislation

Section 4(a) and (b)(i) and (ii) of the 1987 Act relevantly provides:
“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…”
Section 16(1) of the 1987 Act relevantly provides:
“16   Aggravation etc of diseases—employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a)  the injury shall, for the purposes of this Act, be deemed to have happened—
(i)  at the time of the worker’s death or incapacity, or
(ii)  if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and…”
The respondent submits that the applicant concedes that the applicant’s injury is that defined in s 4(b)(ii), and the subject of s 16(1) of the 1987 Act.
The applicant nominates 6 November 2018 as the date of injury in the ARD, and the respondent does not take issue with this. The applicant reported the injury to the respondent and lodged a workers compensation claim on that date.[13] Mr Oyston attended on Dr Pate on 6 November 2018, underwent an MRI scan of his shoulder on 9 November 2018, and was certified unfit for work from that date. In these circumstances I infer that he was incapacitated for work from 6 November 2018.
[13] See Accident/Injury/Injury Report ARD p 10.

Injury

Both Dr Bodel and Dr Diebold find that the applicant’s injury to the right shoulder is an aggravation of the pre-existing, long standing degenerative condition in the right shoulder.
Dr Nouh first saw the applicant on 13 August 2018 with reference to the injury of
24 April 2019. He noted that despite pain in the right shoulder, Mr Oyston returned to full duties at work. Clinically, he maintained near full abduction with a painful arc. He had positive impingement but his cuff strength was normal. Ongoing conservative treatment was endorsed by Dr Nouh, with a repeat Cortisone injection. A follow up MRI was foreshadowed if the pain did not settle down in six weeks.
That MRI scan took place on 9 November 2018, three days after the injury of
6 November 2018. It revealed advanced glenohumeral joint osteoarthritis, with extensive full-thickness loss of articular cartilage, with subchondral cystic change and bone marrow oedema in the humeral head.
Dr Nouh saw the applicant again on 21 November 2018 with the MRI scan of the right shoulder. He noted that the scan showed subacromial bursitis, hypertrophic arthritis of the AC joint with a small partial thickness cuff tear. He found the main feature to be an arthritic glenohumeral joint. Ongoing conservative treatment was recommended.
On 4 January 2019 Dr Nouh referred the applicant to Dr Mark Haber to see if he was suitable for total shoulder replacement surgery, having regard to his age. Mr Oyston was experiencing worsening pain, with significant glenohumeral crepitus and restriction in abduction.
Dr Haber in his report dated 23 January 2019[14] recorded the following history:
“Date of injury: 6/11/2018
Anthony described a sudden onset of pain when ‘carrying chute slipped and fell on arm’ in April 2018. He reinjured himself when he slipped on diesel fuel in November 2018.
Prior to these injuries he was asymptomatic, able to perform all activities with no pain.
I understand he has been working on a concrete truck as a driver for the past five years.
He states he has not had previous significant shoulder injuries and had never sustained a dislocation.
He stated he did have a biceps tendon 25 years ago which did not cause any ongoing symptoms.
He now has significant pain and severe restriction of shoulder movement.”
[14] ARD p 63.
Dr Haber recommended reverse shoulder replacement due to the presence of increasingly severe pain and stiffness. He said:
“I feel the current diagnosis is consistent with the reported mechanism.
From the history obtained I do believe the patient’s employment is a substantial contributing factor to the current condition and need for surgery. It is hoped surgery will alleviate the patient's symptoms and assist in them returning to pre-injury duties.”
Dr Haber is here clearly referring to the history of the April and November incidents.
There is no reference in the clinical notes of the treating practitioners in evidence of any earlier complaints of shoulder pain or symptoms, or, as noted above, in the reports of such practitioners.
The heavy nature of the applicant’s work is as described by Mr Oyston himself, and adopted by Dr Bodel as being causative, in part, for the aggravation of the pre-existing degenerative condition in the right shoulder.
Although the incident of 24 April 2018 is a relatively minor one, and acknowledged as such by Dr Bodel (“a minor injury to the right shoulder”), the applicant nevertheless had some treatment following that injury. He did not take time off work.
Dr Bodel says:
“This gentleman had cuff arthropathy in the region of the right shoulder and the injury at work on 6 November 2018 is the most significant and most recent aggravation, acceleration, exacerbation and deterioration of that underlying disease process.
His pathology in the region of the right shoulder begins with a rupture of the long head of the biceps under the care of Dr Bokor some years ago and then an episode about four months the episode on 6 November 2018 and the last episode has caused additional structural damage by further tearing of the degenerate rotator cuff and further aggravation, acceleration, exacerbation and deterioration of the disease process being the arthritic process in this joint.”
When asked as to the relationship between the injury on 9 [sic, 6] November 2018 and any employment duties in which the applicant was engaged during the course of his employment with the respondent, Dr Bodel says:
“There is a direct causal link between the episode on 9 [sic, 6] November 2018 and his employment duties and that is the main contributing factor by way of aggravation, acceleration, exacerbation and deterioration to the disease process in the region of the right shoulder which has led to the need for the shoulder replacement.”
When asked to identify the condition or disease process and provide his opinion as to whether the accident on 6 November 2018, and/or the nature and conditions of the applicant’s employment with the respondent can be said to have been the major contributing factor to the aggravation etc of that condition, Dr Bodel said:
“There is a degenerative state and the change in the region of the right shoulder is a disease process of gradual onset.
It has not specifically been caused by the work but the nature and conditions of his work and the specific event on 06 November 2018 has caused aggravation, acceleration, exacerbation and deterioration of that disease process and has lead [sic, led] to the need for the total shoulder replacement.”
The respondent says that the attribution by Dr Bodel of aggravation etc of the disease process is as a result of the nature and conditions of employment could almost be described as a “throwaway line” by the doctor. I would not necessarily accept that description, but note that Dr Bodel is the only medical practitioner in the current proceedings who attributes the aggravation of the applicant’s degenerative shoulder condition to the nature and conditions of employment.
Reading the medical evidence as a whole, including that of Dr Bodel, it is hard to escape the conclusion that it was the significant event of 6 November 2018 that was, as required by
s 4(b)(ii) of the 1998 Act, the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
I do not think that the applicant has discharged the onus of proof on him to show that the so called nature and conditions of his employment, considered with the injury of
6 November 2018, were the main contributing factor to the aggravation of the disease process. It was what occurred on 6 November 2016 that was the main contributing factor.
Neilson J in Mirkovic v Davids Holdings Pty Ltd made some oft repeated observations on the phrase “nature and conditions of employment” when reviewing a decision of a Commissioner of the Compensation Court of New South Wales as follows:
“Whilst he used the word ‘arguably’ it is clear that that was what the Commissioner held. The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint.’ My colleague Burke J has repeatedly referred to it as a ‘meaningless concept’. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. The ‘microtraumata’ contention was that advanced by the worker on review.”[15]
[15] [1995] NSWCC19; (1995) 11 NSWCCR 656.
In the case currently before the Commission the applicant is relying on a frank incident, which both treating and qualified specialists find as significant in causing aggravation etc of a pre-existing degenerative condition, and also seeks to include the nature and conditions of employment. The evidence of the applicant and the weight of medical opinion do not enable the finding that the main contributing factor to the aggravation acceleration exacerbation or deterioration of the pre-existing degenerative condition in the applicant’s right shoulder was the frank incident on 6 November 2018, and the nature and conditions of his employment from 2014 to 6 November 2018. The referral to a Medical Assessor should be on the basis of the injury to the right shoulder on 6 November 2018.

Amendment of the ARD

The applicant also seeks to amend the ARD to include the earlier date of injury to the right shoulder, 6 April 2018, and have the matter referred to the Medical Assessor to include consideration of this injury. The respondent opposes this. The applicant makes this application notwithstanding marginal if any medical support for the proposition that this earlier injury could be included as being the main contributing factor to the aggravation of the disease process.
The medical evidence does not support such a position. Dr Bodel finds that it was a minor injury. The applicant did have some conservative treatment following the injury, including two ultrasound guided cortisone injections, which did not give great relief of pain. He did not take any time off work. The MRI scan taken three days after the injury of 6 November 2018 showed significant pathology. Those factors alone would militate against amending the ARD to include the earlier date of injury.
The respondent also relies on what the Court of Appeal said in Skates in opposing amendment to the ARD.
In Skates there was an error in the terms of referral of the applicant worker’s claim for permanent impairment compensation to an Approved Medical Specialist (AMS) in respect of an injury to the left wrist, left ring finger and scarring, which was not picked up or corrected by the parties. The body parts referred were the left upper extremity (joint ring finger) and scarring. The AMS went beyond the terms of the referral and assessed the whole of the worker’s left arm, rather than what was referred. On appeal a Medical Appeal Panel, notwithstanding a concession by the employer’s insurer that the left wrist should have been included in the referral, found that the AMS was in error and assessed the left upper extremity (joint ring finger) and scarring only.
When Mr Skates sought judicial review of that decision in the Supreme Court of New South Wales, the primary judge upheld the application on the limited basis that the Medical Appeal Panel should have given effect to the insurer’s concession as to inclusion of the wrist but otherwise upheld the decision of the Appeal Panel that the AMS was bound by the terms of the referral and that he had exceeded the referral by assessing impairment in parts of the upper limb other than the wrist and the ring finger.
On appeal to the Court of Appeal, Basten JA and Leeming JA held (McCallum JA dissenting) that the primary judge was correct in finding that the Appeal Panel (subject to the identified concession) was correct in concluding that the AMS’s assessment contained demonstrable error in failing to be limited to the terms of the applicant’s referral of a dispute.
The majority stressed the care which must be exercised if referral of matters for assessment in the context of a statutory regime. Leeming JA put the matter thus at [50], after having summarised the process by which parties to a medical dispute bring the matter before (in that case) the Workers Compensation Commission, and an AMS:
“The foregoing substantially corresponds with the first explanation given by Basten JA for confirming the correctness of the result reached by the Appeal Panel and the primary judge, with a heavier emphasis upon the purpose of the statutory regime being to resolve a medical dispute and that a dispute is identified by the disputants’ competing claims.”
The decision in Skates is not directly on point of what is in issue in the current proceedings, but his Honour’s comments are apposite. In the current matter the applicant presented his case from the outset relying on the medical opinion of Dr Bodel who describes the earlier injury on 24 April 2018 as minor.
The first notice that was given to the respondent of the amendment proposed to the ARD to include the earlier date of injury was at the arbitration hearing and in written submissions. The respondent points out that Dr Bodel has not provided a separate assessment of whole person impairment as a result of the earlier injury on 24 April 2018, and while that in itself would not prevent amendment of the ARD if it was otherwise appropriate, it is a factor that can be considered. The incident itself is quite clearly not the main contributing factor to the aggravation of the degenerative condition, but it appears that the applicant seeks the amendment to include the incident as part of the ‘nature and conditions’ of his employment.
I have found that the applicant is not entitled to rely on that part of his claim.
The respondent also raises the possibility that if the earlier date of injury is included, the Medical Assessor may give a separate assessment of whole person impairment as a result of that injury. That may be avoided by direction, but to amend the ARD in the way sought by the applicant could potentially make that assessment more difficult for no good reason.
For the foregoing reasons the applicant’s application to amend the ARD to include reference to the date of injury of 24 April 2018 is refused.

SUMMARY

The applicant sustained injury on 6 November 2018 to his right upper extremity (shoulder) arising out of or in the course of his employment with the respondent.
The injury sustained by the applicant was the aggravation, acceleration, exacerbation or deterioration of a pre-existing degenerative condition in the right shoulder to which the applicant’s employment with the respondent was the main contributing factor.
The matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury on 6 November 2018 to the right upper extremity (shoulder), and scarring.
The documents to be referred to the Medical Assessor are:
(a)    ARD and attachments;
(b)    Reply and attachments, and
(c)    this Certificate of Determination and Statement of Reasons.

[2023] NSWPIC 461

11 September 2023