Patterson v Secretary, Department of Planning, Industry and Environment
[2022] NSWPIC 426
•1 August 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Patterson v Secretary, Department of Planning, Industry and Environment & others [2022] NSWPIC 426 |
| APPLICANT: | Suzanne Patterson |
| FIRST RESPONDENT: | Department of Planning, Industry and Environment (formerly known as the Department of Primary Industries) |
| SECOND RESPONDENT: | Department of Customer Services (formerly known as Department of Finance Services and Innovation) |
| MEMBER: | Christopher Wood |
| DATE OF DECISION: | 1 August 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Matter remitted back by Presidential Unit for determination following successful appeal by applicant; need to apply sections 15 and 16 of the Workers Compensation Act 1987 (1987 Act) to facts in relation to agreed injury; whether applicant’s condition a mere continuance of an accepted injury in 2009 or whether nature and conditions thereafter were to be applied to determine notional date of injury and date of whole person impairment for purposes of section 66 of the 1987 Act benefits; consideration of Makita v Sprowles; Alto Ford Pty Limited v Antaw; Stone v Stannard Bros Launch Services Pty Limited, Patterson v Secretary, Department of Planning, Industry and Environment; Held — award for applicant and first respondent; the nature and conditions of the applicant’s employment contributed to the development of her condition after 2009 such that applying sections 15 and 16 of the 1987 Act deemed date of injury was 6 August 2018 meaning the second respondent is liable to make payments of compensation referrable to pre-injury weekly earnings at that time and lump benefits in respect of agreed whole person impairment pursuant to section 66 of the 1987 Act. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for applicant on the question of whether the nature and conditions of her employment after 2009 played a role in the development of her injury. 2. The notional date of the applicant’s injury is 6 August 2018 and the date for determination of the applicant’s entitlements for whole person impairment agreed at 29% is 10 August 2020 with the second respondent to pay compensation due to the applicant in accordance with the Application to Resolve a Dispute. 3. Award for the first respondent. |
STATEMENT OF REASONS
BACKGROUND
The application by Ms Suzanne Patterson (Ms Patterson) against the Department of Planning, Industry and Environment (formerly known as the Department of Primary Industries) (the first respondent) and the Department of Customer Services (formerly known as Department of Finance Services and Innovation) (the second respondent) (collectively, the respondents) has been remitted by the Presidential Unit for re-determination following a successful appeal on her behalf.
Ms Patterson has worked for state government departments since the 1980s taking breaks to raise her family and travel. She was initially employed by the Central Mapping Authority and has worked as a cartographer with various agencies including the first respondent, having joined it in 1999. She was later employed by the second respondent.
Ms Patterson made a claim for compensation for neck and shoulder injuries as a result of the nature and conditions of her employment in around April 2009 for which she received some payments including medical expenses. Thereafter she continued her employment with the first respondent which changed its operational title over the years as the administrative functions allocated to it apparently changed, including to that of the named second respondent. It is this continued employment which is central to the issue which is to be determined.
Ms Patterson and the first respondent contend that the nature and conditions of her employment after April 2009 have had an impact upon her such that she should be compensated at (higher) pre-injury average weekly earnings applicable to the deemed dates of injury and claim pleaded in the Application to Resolve a Dispute (ARD) and payable by the second respondent. The second respondent says that Ms Patterson’s entitlements to both weekly compensation and lump sum benefits under s 66 of the Workers Compensation Act1987 (the Act) ought to be assessed as at April 2009.
ISSUES FOR DETERMINATION
The correct identification of the respondents who employed Mrs Patterson caused some delay to the listing of the ARD. Having finally resolved the question of the correct respondents to the claim during the preliminary conciliation phase, the parties are agreed that the only matter that falls for determination is whether the nature and conditions of Ms Patterson’s employment after 2009 played a role in causing her undisputed present incapacity and whole person impairment.
Simply put, if Ms Patterson with the support of the first respondent makes good her case then she is to receive weekly payments of compensation applicable to a deemed date of injury of 6 August 2018 and lump sum benefits for whole person impairment agreed at 29% applicable as at 10 August 2020 when her claim (for such benefits) was made by reason of the operation of ss 15 and 16 of the Act.
I understand the parties are agreed that if I make findings in favour of the Ms Patterson that the applicable pre-average weekly earnings will be a matter of agreement between them.
PROCEDURE BEFORE THE COMMISSION (the Commission)
The ARD has had a long history with Ms Patterson successfully appealing an original 2021 decision finding that she was to be assessed by reference to an April 2009 injury rather than as having a disease of gradual onset as contemplated by the Act as far as benefits are payable in accordance with ss 15 and 16 and outlined in paragraph 6 above.
The parties attended a telephone conference on 26 April 2022 at which time the correct respondent government departments to the claim were identified as set out in the Certificate of Determination. The second respondent so named and subsequently served was not separately represented at that time. I note there is a commonality of insurer and that information barriers were in place at that insurer.
At the time of the telephone conference there appeared to be some prospects that, with the correct parties having been identified, there may be some prospects for resolution. That has not proved to be the case. Counsel for the respective parties, Mr Goodridge for the applicant, Mr Gaitanos for the first respondent and Ms Grotte for the second respondent, were given the opportunity to explore settlement but I was informed by Ms Grotte there can be no agreement on the evidence and her instructions were the matter must proceed. I am satisfied that the parties understand the issues. They have been advised by experienced counsel and Ms Patterson who has been privy to, what for her must seem to be a perhaps unnecessarily drawn out process, understands the issues.
ORAL EVIDENCE
There is no application to lead oral evidence.
BACKGROUND
As I have already noted the matter has had a long and from the point of view of identifying the correct respondents, perhaps unnecessarily complicated history. The facts giving rise to the claim together with the medical evidence before the Commission has been previously summarised at some length both at first instance and then again on appeal.
However, for the purposes of the decision it is helpful to set out some background to the matter to give the decision proper context.
As alluded to above, Ms Patterson has had a long history of employment with the NSW state government. She has provided a statement which details her employment with the first respondent as fulltime cartographer. She says that she started to develop neck and shoulder pains as a consequence of her repetitive work with a mouse and data entry role which she performed in a hunched over position. The ergonomics of her workplace do not appear to have been ideal. She noticed that she had problems with pain in her right shoulder and neck which accumulated over a number of months prior to her making a claim on or around 1 April 2009.
She was paid for periods of incapacity and some medical expenses. I note in submissions by both Mr Goodridge and Ms Grotte that on any view of it the compensation paid at this time was not significant, measured in days.
Thereafter Ms Patterson continued in her employment receiving conservative treatment, regular physiotherapy and anti-inflammatory and pain medication.
Pausing here, during submissions for the second respondent Ms Grotte suggested that there was no evidence to corroborate Ms Patterson’s assertions of discreet aggravating factors in her employment after returning to work in 2009. With respect to Ms Grotte this was a submission which she was no doubt bound to make however, when considering the employer was a state government entity with all the resources available to it, I would have expected that if any of the matters for which Ms Patterson contends in her statement were seriously in issue then they would (perhaps should) have been properly explored and any resulting material (statements etc) filed in reply. This was a point taken by Mr Goodridge who also drew attention to the absence of a factual dispute concerning the events after 2009 being raised at any stage. I accept Ms Patterson’s statement as an accurate account of the details of her employment following the acceptance of her 2009 injury claim. Having communicated with Ms Patterson both at the initial telephone conference and during the conciliation and arbitration phase she strikes me as a longstanding public servant who was being nothing other than truthful and willing to assist the Commission.
In any event there were several issues raised as relevant, detailing the worsening of Ms Patterson’s condition after she returned to work in 2009. In 2014 she was moved from a modified workstation which had been provided to her on her return to work. Her new workstation was not ergonomically assessed. References appear the in reports of her treating physiotherapist to the ergonomic situation being a factor raised by Ms Patterson during her consultations with him in 2015 and 2016[1].
[1] ARD page pp 53 and 55.
Ms Patterson continued to work, receiving conservative treatment from time to time, until in 2018 she said there was an increase in her workload which required significance increase in the use of a computer mouse and data entry tasks such that her symptoms were too much to continue, leading her to seek additional specialist medical assistance from Drs Raoul and Pope culminating in a spinal fusion in September 2019[2]. She has had limited work capacity since.
[2] As Mr Goodridge commented in submissions the medical records are somewhat scanty on the background to her coming to a spinal fusion in September 2019 as at that time Ms Patterson has sought to return to work albeit in a vary limited capacity.
Medical reports
I do not propose to unnecessarily review the medical evidence.
The first respondent’s legal representatives prepared a brief in reply to the ARD which draws on selected pages within the ARD and produces no medico-legal evidence of its own. The second respondent since separately represented has not sought to produce any additional medical evidence and relies upon that previously filed by the first respondent in seeking to attach Ms Patterson’s claim to the April 2009 injury.
Applicant’s evidence
I have regard to the material in the ARD.
The material upon which the applicant relies variously includes treating general practitioners’ notes and those of allied health professionals such as Mr Roberts. Beyond that there are reports from various treating doctors including the specialists Dr R Pope and Dr John Sheehy.
A medico-legal report dated 13 July 2020 has been prepared by Dr Uthum Dias at the request of Ms Patterson’s solicitors.
I note here that Dr Dias’ conclusions were subject to criticism by the first respondent’s then counsel, Mr Doak, and Ms Grotte picks up those submissions as far as they concern Makita v Sprowles[3] principles.
[3] [2001] NSWCA 305.
Respondents’ evidence
Both respondents’ counsel drew on material within the ARD although understandably the first respondent’s focus has necessarily shifted to essentially be in line with the arguments presented for Ms Patterson, with Ms Grotte taking up the argument for the 2009 injury being the relevant determinant of compensation entitlements.
SUBMISSIONS
Applicant’s submissions
Mr Goodridge gave short oral submissions to supplement those written submissions made in support of Ms Patterson’s appeal.
Unsurprisingly he drew heavily on the decision of the Deputy President to the effect that the original member, in the face of the parties having proceeded on the understanding Ms Patterson suffered from a disease condition, ought to have considered the application of s 15 and 16 to the facts.
Mr Goodridge, apart from his written submissions on appeal, drew from what he respectfully described as the ‘purple passages’ of the Deputy President’s decision and in particular at [68], [71] and [73]. Mr Goodridge noted that the Deputy President also identified the relevant authorities for the proper application of ss 15 and 16 to an aggravation, acceleration and exacerbation of a disease type injury come from the Court of Appeal including the decision in Alto Ford Pty Limited v Antaw[4].
[4] [1999] NSWCA 324 (Antaw).
At [68] of her decision the Deputy President noted that:
“In any event having determined the question of injury pursuant to section 4 the member failed to take the necessary further step of ascertaining the deemed date of injury for the purposes of a claim for incapacity and permanent impairment entitlements in accordance with section 15 and/or 16 and applying the relevant authorities dealing with those sections.”
Mr Goodridge drew attention to [71] of the Deputy President’s decision which is two extracts from the decision of Shellar JA in Stone v Stannard Bros Launch Services Pty Limited[5]. Stone considered the earlier reasoning in Antaw and those cases are authority for the proposition that it is the date of incapacity which determines albeit fictionally when an injury happened, i.e. a deemed date of injury[6].
[5] [2004] NSWCA 277 (Stone).
[6] Antaw [18].
Mr Goodridge drew attention to [73] where the Deputy President noted the original member had fallen into error by failing to consider application of ss 15 and 16 to the facts before her having identified the issue of needing to determine the role of the April 2009 injury against subsequent injury or injuries.
Mr Goodridge referred in short compass to Ms Patterson’s medical history and treatment following 2009. This included among other things, physiotherapy, acupuncture, CT and a guided cortisone injection in 2016. Ms Patterson’s symptoms worsened in 2018 involving neck pain, left arm pain, pins and needles down the left arm, and vertigo; ultimately Ms Patterson went off work.
Mr Goodridge says that Ms Patterson displaying common sense around her situation went off work in 2018 as a consequence of the whole of her employment with the respondent (or ultimately the respondents). He says it would be entirely artificial and against all of the medical evidence for the second respondent to submit that it was only the work up until 2009 which effected Ms Patterson’s condition and the work she did thereafter played no role in her going off work on 6 August 2018. That could be the only basis upon which ss 15 and 16 had no work to do in determining the date of injury.
First respondent’s submissions
Mr Gaitanos was understandably brief in his submissions for the first respondent. He adopted the timeline prepared by Ms Patterson’s solicitors which formed part of the ARD. Mr Gaitanos drew attention to Ms Patterson’s symptoms being chronic in 2014 and the difficulties shewas having in obtaining a suitable ergonomic environment in which to work. Mr Gaitanos like Mr Goodridge referred to Dr Dias’ opinion. The doctor recorded that Ms Patterson had ongoing symptoms of pain and stiffness in the cervical spine over an extended period which tended to be exacerbated by the computer work which she was doing, leading to a diagnosis of cervical spondylosis with associated degeneration at the C5/6 and C6/7 levels. Mr Gaitanos submitted that Dr Dias provides support for the proposition that employment was the main contributing factor to the development of the condition which was also supported by the position of Dr Sheehy[7] ie: that employment was the major contributing factor to her condition of cervical spondylosis. Agreeing with Mr Goodridge he drew attention to [68] of the Deputy President’s decision to which he said I should have significant regard. I again note at this point that the decision by the Deputy President reflected her having taken into account the leading Court of Appeal authorities and which were referenced by Mr Goodridge in his submissions.
[7] Pages 84 and 85 of the ARD.
Second respondent’s submissions
Ms Grotte stepped through Ms Patterson’s history as recorded in her statement and compared and contrasted that with the clinical notes of her general treating practitioners in particular[8]. Ms Groote suggested that in reality, after returning to work in 2009, Ms Patterson simply underwent more of the same. She saw her general practitioner and other allied health professionals such as physiotherapists but significantly, there was no mention of the matters of which she otherwise complains in her statement such as the poor ergonomic configuration of her workplace or later in 2018 the upsurge in work.
[8] Pages 200 to 215 of the ARD.
Ms Grotte suggested that if these matters were of some significance the Commission would expect to see them recorded by treating doctors and other health practitioner for workers compensation purposes. In other words a doctor taking a history from Ms Patterson from time to time would have made enquiry and solicited the information which is otherwise set out in Ms Patterson’s statement.
Ms Grotte as I have referred earlier was critical of Dr Dias’ report and drew on the submissions made by Mr Doak, counsel for the respondent at first instance. He had argued in submissions on appeal that Dr Dias’ opinion ought be discounted on the basis that it merely answered questions posed by Ms Patterson’s solicitors and did not set out a proper basis for the doctor’s (expert) opinion; applying Makita v Sprowles principles it ought be disregarded. Ms Grotte says that in reality all the evidence shows is “an ongoing history of problems continuing unabated” since 2009. Ms Grotte referred to Dr Pope’s report[9]. She noted Dr Pope’s reference to MRI scans drawing attention to there being no significant difference between what the scans show over time. I might note here there does not appear to have been a question posed to any other practitioner about what the significance of the lack of change in the MRI scan meant, if anything.
[9] ARD 37.
Ms Grotte drew attention to the reoccurrence of injury form completed by Ms Patterson[10]. In answer to the question “how did the reoccurrence of injury occur?” Ms Patterson replied “ongoing since 2008/2009”. She says this statement is evidence that it was an ongoing complaint; that the injury occurred then and thereafter it was a manifestation of the deterioration set in train at that time (as a result of that original injury). Essentially Ms Patterson’s condition was getting worse over time naturally such that Ms Grotte contends “it [Ms Patterson’s injury] just never got better”.
[10] Page 10 of the ARD.
Attention was drawn to the report of Dr Loffler[11] where he records intermittent paraesthesia over seven years. This dates back to the original reports of pins and needles in 2009. This, the second respondent says, is further evidence that nothing had changed for Ms Patterson over time.
[11] Page 54 of the ARD.
REASONS
Ms Grotte did her best with the material available to her. Leaving aside whether Dr Dias as a medico-legal practitioner has made an unjustified leap of faith or even allowing for Dr Sheehy’s report then being to some extent the lone voice in support of Ms Patterson, I struggle with the proposition that the Commission should have complete disregard to some nine years of employment involving use of a mouse and keyboard in what was not disputed to be a less than ideal ergonomic workspace (after a change in work station) and an increase in workload in 2018. There was undoubtedly a deterioration in Ms Patterson’s condition and she can point to the reasons for that. As Mr Goodridge suggested it would be a very artificial world indeed if the entire work history after 2009 were to be disregarded.
Her treating physiotherapist does corroborate some aspects of the history she provides. There was a progressive deterioration in her condition and as a simple matter of common sense given that she had got herself back to work, that cannot be disregarded. The respondent(s) have been the beneficiary of long and seemingly loyal service.
The proposition that the treating doctors and other health professionals failed to record the factors to which Ms Patterson points in 2014 and 2018 is easily addressed by having regard to the likelihood they were focussed on treating their patient rather than the minutiae of ensuring details which might be of some forensic interest to a workers compensation insurer or advocate at a point in the future were faithfully recorded.
Of some importance too is surgery was not indicated in 2009 and indeed had Ms Patterson stopped working at that time it is reasonable to conclude that one of the possible outcomes was she may never have come to surgery or developedthe symptoms which she has had and/or now suffers. To suggest her condition was just a natural progressionstrains a proper analysis of all the material.
That Ms Patterson has suffered an injury for the purposes of s 4 is not in issue. It has been accepted that Ms Patterson’s injury identified in April 2009 arose out of the nature and conditions of her employment.
Those nature and conditions of her employment continued until 2018. I am satisfied that there were in addition exacerbating factors. As pointed out by both Mr Goodridge and Mr Gaitanos there were events after 2009 that are relevant which have been referred to above.
In these circumstances, applying sub-s 15(1) Ms Patterson has a disease which was contracted by a gradual process over many years of employment both before and after 2009 with there having been some discrete periods of material aggravation including a lack of appropriate ergonomic design of her workstation and an upswing in work activities in 2018 which played a causal role. Therefore the deemed date of injury will be her first period of incapacity in 2018 specifically from 6 August 2018.
By virtue of sub-s 15(1)(b) the compensation is payable by the second respondent being the employer who last employed Ms Patterson (at that time) in employment to which the nature of the disease is due.
Applying the relevant authorities, the date on which Ms Patterson’s claim for whole person impairment benefits pursuant to s 6 is payable is the making of her claim, being 10 August 2021.
As I have already recorded the parties have said subject to this decision they will agree the relevant pre-injury weekly earnings figure to inform Ms Patterson’s entitlements from 6 August 2018 and her whole person impairment is agreed at 29%; benefits shall therefore be payable in accordance with the ARD as amended.
0
3
0