Paris v Woolstar Pty Ltd
[2022] NSWPIC 83
•28 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Paris v Woolstar Pty Ltd [2022] NSWPIC 83 |
| APPLICANT: | Derek Brett Paris |
| RESPONDENT: | Woolstar Pty Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 28 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation; injury to certain body parts accepted, others disputed; causation; whether applicant suffered injury to cervical spine, left shoulder and/ or a consequential condition to his right knee; Kooragang Cement Pty Ltd v Bates followed; Castro v State Transit Authority discussed; Held- a common-sense evaluation of the evidence establishes the applicant suffered injury to his cervical spine; there is contemporaneous complaint and investigation of that body system; the evidence establishes the applicant suffered a consequential condition to his right knee; Kumar v Royal Comfort Bedding Pty Ltd and Moon v Conmah Pty Ltd discussed; the evidence does not establish on the balance of probabilities that the applicant suffered an injury to his left shoulder; matter referred for assessment of permanent impairment of the applicant’s left knee, lumbar spine, right shoulder, cervical spine, right knee and for assessment of scarring; award for the respondent on the claim for injury/ consequential condition to the left shoulder. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to his left lower extremity (knee), lumbar spine, right upper extremity (shoulder) and cervical spine in the course of his employment with the respondent on 7 February 2013 and thereafter owing to the nature and conditions of his employment with the respondent on 28 October 2020. 2. As a result of the injuries referred to in paragraph 1 above, the applicant suffered a consequential condition to his right lower extremity (knee). 3. Award for the respondent on the claim for injury/ consequential condition to the left upper extremity (shoulder). 4. The matter is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: (a) date of injury: 7 February 2013 and nature and conditions of employment to 28 October 2020; (b) body systems referred: left lower extremity (knee), lumbar spine, right upper extremity (shoulder), cervical spine, right lower extremity (knee), scarring (TEMSKI), and (c) method of assessment: whole person impairment. 5. The documents to be referred to the Medical Assessor to assist with the determination are to include the following: (a) this Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attached documents; (c) Reply and attached documents, and (d) applicant’s Application to Admit Late Documents dated 20 January 2022 and attached documents. 6. By agreement of the parties at the conciliation/arbitration hearing on 31 January 2022, the permanent impairment from each of the claimed impairments may be aggregated by the Medical Assessor. |
STATEMENT OF REASONS
BACKGROUND
The applicant commenced employment with the respondent in or about August 1994, and in the course of that employment worked at Woolworths warehouse distribution centres.
The applicant’s uncontested statement evidence is that he was required to repetitively bend and lift stock, including heavy boxes and was often required to lift and carry such weights in awkward and confined spaces with his arms outstretched. The applicant’s employment consisted of a bonus system, where he was required to perform not less than 180 lifts per hour. He stated he would park an electric stand on a pallet truck adjacent to a shelving system then lift and carry stock from that shelving system onto the pallet.
The applicant alleges that on 7 February 2013, he stumbled over a pallet and twisted his left knee while trying to stabilise himself. In his statement, he refers to a number of other incidents which took place in the course of his employment, including an injury to the right side of his neck and left shoulder in April 2014, for which he was absent from work until 5 August 2014, an injury on 4 November 2014 to his left knee which caused an aggravation of the 7 February 2013 injury and a fall at home on 28 October 2020 when he was recovering from the last surgery to his left knee.
Additionally, the applicant alleges that the nature and conditions of his employment have caused injuries to multiple body parts.
The respondent concedes that the applicant’s left knee, lumbar spine and right shoulder will be the subject of a referral to a Medical Assessor. The respondent disputes that the applicant suffered any injury to the cervical spine, left shoulder and a consequential condition to the right knee.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered injury to his cervical spine;
(b) whether the applicant suffered a consequential condition to his right knee as a result of the accepted injury to his left knee, and
(c) whether the applicant suffered injury to his left shoulder.
At the hearing, the respondent conceded that the applicant had suffered a lumbar spine injury as a result of both the nature and conditions of employment and as a consequential condition to his original injury. Accordingly, that body system will be referred to a Medical Assessor to determine the degree of the applicant’s whole person impairment to the lumbar spine.
Mr Grimes for the respondent also conceded that if any of the disputed body parts become part of a referral, then the permanent impairment to each of the assessed body systems may be aggregated, as the nature and conditions responsible for the alleged neck, left shoulder and right knee conditions are identical.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing before me on 31 January 2022. 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.
At the hearing, Mr A Johnson of counsel instructed by Ms A Navarro appeared for the applicant, and Mr T Grimes instructed by Mr D Wilkins appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents (AALD) and attachments dated 20 January 2022.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Injury, consequential condition and causation
The applicant carries the onus of proving his alleged injuries and consequential conditions are work-related. In determining the cause of an injury, the Commission must apply a common-sense test of causation. In the workers compensation context, the appropriate test for causation was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) where his Honour said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent death or injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.” (at 810; emphasis added)
“Injury” is defined in s 4 of the Workers Compensation Act 1987 (the 1987 Act) as follows:
“In this Act: injury means
(a) personal injury arising out of or in the course of employment,
(b) includes a “disease injury”, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
There is a useful review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (Castro). That case makes clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”. In Castro a temporary physiological change in the body’s functioning (atrial fibrillation: irregular rhythm of the heart), without pathological change, did not constitute injury.
In other words, where a worker alleges they have suffered injury to a body system, it is incumbent upon them to prove not only an injurious event, but also an identifiable pathological change to the relevant body system.
That is not the case in relation to consequential conditions. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. At paragraph 35 and following, Roche DP stated:
“35. By asking if Mr Kumar has suffered a s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.
36. The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 (Davis); Vivaldo; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 (Turner)) and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).”
In Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon), which concerned an alleged consequential condition of the left shoulder Roche DP at [44]–[46] described what is required:
“44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
Consequential condition to the right knee
The respondent denies the applicant suffered a consequential condition to his right knee.
On balance, I accept that the applicant did suffer a consequential condition to his right knee.
I note there is contemporaneous medical evidence which supports such a finding, namely that the applicant was treated by his physiotherapist, and on 22 February 2013, the applicant reported to his physiotherapist that his right knee was now sore.The uncontested evidence of the applicant is that he returned to work with his left knee in a brace after his injury, which in turn caused him to favour his right knee while stepping on and off pallets and stepping on and off the pallet machine many times per day.
The uncontested evidence of the applicant is that the work of that nature was repetitive and that his right knee pain increased. On 26 October 2017, the applicant was examined at Sydney Sports and Exercise at the request of the respondent, because he had been favouring his right side due to the abnormal gait caused by the left knee injury.
The respondent relies upon the report of Dr Rimmer in support of a contention that there was no injury to the right knee. It is apparent from an examination of Dr Rimmer’s reports that he did not have the request for examination of the right knee by the respondent at his disposal. Additionally, the applicant was treated by Dr Neil, Dr Hartnell and Dr Kalanie. In his report dated 11 January 2021, Dr Kalanie stated:
“Derek is now suffering from highly symptomatic medial compartment OA of his right knee which is directly related to use of overloading/overusing this knee to protect and carry his injured left knee.”
Additionally, it is noteworthy that the respondent’s insurer has paid for various treatments to the applicant’s right knee including physiotherapy treatment on 22 February 2013, and thereafter an MRI on 26 October 2017 in answer to complaints of overuse of the right knee.
The respondent was also aware of consultations with the applicant’s general practitioner,
Dr Touma, in which the applicant reported right knee pain in the presence of a rehabilitation consultant of the respondent, was also aware of treatment by pain specialist, Dr Wallace, and provided payment for a single CINGAL injection to the right knee by Dr Kalanie in early 2021. That treatment was specifically approved and paid for by the insurer.I note that none of that information or the approvals appear to have been passed on to Dr Rimmer, and in my view, that renders his opinion concerning the right knee injury unreliable.
In my opinion, the treating and medico-legal evidence is overwhelming in this matter and supports a finding that the applicant suffered consequential condition to his right knee as a result of the nature and conditions of his employment causing overuse and over reliance on his right leg following the left knee injury on 7 February 2013.
As has been noted, the respondent appropriately conceded that if the right knee dispute was found in the applicant’s favour, then that any impairment arising from that body system could be aggregated with the other body systems which are ultimately referred for assessment.
Alleged injury to the cervical spine
I note the injury to the right shoulder is admitted and will be referred for medical assessment.
The applicant completed a claim form for neck and shoulder injuries in April 2014. The alleged injury was based upon repetitive picking and packing of stock while operating the pallet loader. Dr Chin, the applicant’s then general practitioner, provided medical certificates, including one on 20 April 2014 which noted “some neck and shoulder pain reported on – not resolved”.
The applicant underwent an MRI on 15 May 2014, which disclosed the biceps tendon sheath fusion to the right shoulder, and a potential irritation of the exiting right C5 nerve root.
Mr Johnson submitted, and I accept, that the findings on the MRI examination are sufficient to ground a finding of pathological change to the cervical spine, sufficient to in turn ground a finding of cervical spine injury pursuant to section 4 of the 1987 Act.
The applicant, in my view, has demonstrated the presence of consistent complaint surrounding his cervical spine injury. The radiological evidence supports that finding. For his part, Dr Rimmer provides a report in which he indicates the applicant did not suffer a cervical spine injury. He reported on 7 July 2021 that the cervical spine produced a normal examination. It is apparent from the documentation reviewed by Dr Rimmer and listed in his report at page 11 of the Reply that he did not have the benefit of the MRI of the applicant’s cervical spine. At page 16 of the Reply, Dr Rimmer says the applicant has not sustained an injury to his cervical spine, however, in fairness to Dr Rimmer he was not presented with the relevant radiological evidence to make a finding with respect to that body system. Nevertheless, the absence of that material being before Dr Rimmer in my opinion renders his opinion unfavourable.
Medical entries on 14 April 2014 reveal an alleged injury to the applicant’s neck on the right side and to his right shoulder, with further aggravations on 12 May 2014 at which time he was certified unfit for pre-injury duties until 5 August 2014.
The contemporaneous radiological evidence and claims documentation on balance indicates the applicant did suffer an injury to his cervical spine at the same time as that suffered to his right shoulder.
On balance, I am satisfied that the treating and medico-legal evidence discloses injury to the cervical spine.
The cervical spine MRI dated 15 May 2014 reported pathological changes at C4/5 and C3/4. The report on those findings by the treating radiologist was:
“Multi-level for the most part mild spondylitic change. At C4/5, there is a broad right-eccentric osteochondral bar. Clear distortion of the anterior cord surface without cord signal abnormality but a moderate degree of right foraminal narrowing with potential irritation of the exiting right C5 nerve root.”
That evidence is, in my view, combined with the statement evidence of the applicant as to the onset of his cervical spine symptoms, sufficient for a finding of injury caused by the nature and conditions of his employment.
Accordingly, the cervical spine injury will be referred to a Medical Assessor.
Alleged left shoulder injury
In my view, the applicant has not discharged the onus of proof in establishing an injury with respect to the left shoulder. There is no contemporaneous medical or claims documentation which supports an injury to that body system. Indeed, the only evidence which gives rise to an allegation of left shoulder injury is the report of Dr Bodel, who provides some work-related impairment for that body system.
In my view, that report alone is insufficient ground to finding of injury in the course of the applicant’s employment to the left shoulder. Examining all of the material on a common sense basis, there is insufficient evidence of a contemporary nature sufficient to give rise to a finding of injury or consequential condition to that body system.
Accordingly, there will be an award for the respondent on the claim for left shoulder injury and/or consequential condition.
SUMMARY
For the above reasons, the Commission will make the findings and orders as set out on page 1 and 2 of the Certificate of Determination.
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