Patterson v Secretary, Department of Planning, Industry and Environment
[2021] NSWPIC 212
•25 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Patterson v Secretary, Department of Planning, Industry and Environment [2021] NSWPIC 212 |
| APPLICANT: | Suzanne Patterson |
| FIRST RESPONDENT: | Secretary, Department of Planning, Industry and Environment |
| SECOND RESPONDENT: | Secretary, Department of Customer Service |
| MEMBER: | Deborah Moore |
| DATE OF DECISION: | 25 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- The name of the respondent amended; 2 respondents; claim for weekly benefits and lump sum compensation; no dispute applicant injured on 1 April 2009, and has been paid compensation since; applicant pleaded injury should be by way of a disease with a deemed date of injury of 6 August 2018; the proper interpretation of all the evidence is that the applicant suffered an injury in the course of her employment on and prior to 1 April 2009 which was further exacerbated over the years up to August 2018; Held- award for weekly payments from August 2018 at rates applicable for injury on 1 April 2009; permanent impairment claim remitted for referral to a Medical Assessor. |
| DETERMINATIONS MADE: | 1. Amend the name of the respondent as per the headnote above. 2. Award for the respondents in respect of the allegation of a deemed date of injury of 6 August 2018. 3. Award for the applicant in respect of the claim for weekly compensation from 6 August 2018 at the rates applicable to an injury on 1 April 2009. 4. Credit to the respondents in respect of any payments made since 6 August 2018. 5. The permanent impairment dispute in respect of the cervical spine and scarring (TEMSKI) resulting from the injury on 1 April 2009 is remitted to the President for referral to a Medical Assessor (MA) for assessment of whole person impairment. 6. The documents to be sent to the MA are the Application to Resolve a Dispute and the Reply. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Suzanne Patterson, was employed by the first and second respondents as a cartographer.
She commenced part-time employment in 1993 with the first respondent until the name of her employer changed to that of the second respondent.
Her duties she said “involved hours of repetitive work with a mouse and data entry in a hunched over position” as a result of which she said she “began to develop significant problems with my right shoulder and neck.”
She eventually reported these problems on 1 April 2009.
She had a period of incapacity and incurred medical expenses as a result of her symptoms.
She made a workers compensation claim, for weekly compensation and treatment expenses, which was accepted by the respondent’s insurer and compensation was paid in response.
Her workstation was apparently modified, and she resumed work but said that she continued to experience symptoms in her neck and right arm which required her to undergo ongoing medical treatment.
In about 2014 she moved workstations and said that she developed an increase in her symptoms requiring increased treatment.
She said that in 2018 there was an increase in her duties and her symptoms began to increase accordingly.
She eventually ceased work and underwent a cervical spinal fusion at the hands of Dr Pope in September 2019.
She resumed part-time work in about January 2020, and remains employed by the second respondent. She continues to be paid weekly benefits and treatment expenses based on the date of injury of 1 April 2009.
By an Application to Resolve a Dispute (the Application) registered in the Commission on 22 March 2021 she sought weekly benefits from 6 August 2018 and lump sum compensation.
The date of injury nominated was 6 August 2018 and the injury described as:
“Due to the nature and conditions of the Applicant's work which involved intensive computer and mouse- based work she sustained injury to her neck, right shoulder and secondary psychiatric injury with a deemed date of injury on 6 August 2018 or in the alternative with a deemed date of injury on 1 April 2009.”
In a Section 78 Notice dated 9 January 2020, the insurer accepted liability with respect to the April 2009 injury, confirming that weekly payments and medical expenses continued to be made with respect to that injury. It denied liability for weekly benefits and lump sum compensation based upon an injury date of 6 August 2018.
The parties attended a conciliation/arbitration hearing on 20 May 2021. The issue regarding the correct identity of the respondent arose and could not be resolved at that time.
Accordingly, I directed the parties to file written submissions addressing that issue and also the substantive issues as pleaded.
ISSUES FOR DETERMINATION
The only issue for determination is the correct date of injury for the purposes of the claim, or as the applicant put it, “Does the incapacity arise out of the 2009 injury or subsequent injury or injuries?”
Resolution of that dispute requires consideration of the law as it applies to the facts of this case.
PROCEDURE BEFORE THE 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.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attached documents;
(b) Reply and attached documents;
(c) Respondent’s written submissions dated 3 June 2021; and
(d) Applicant’s written submissions dated 10 June 2021.
The applicant and the respondent are in dispute as to the quantum of weekly compensation and the quantum of the lump sum compensation.
As the applicant correctly pointed out, there is no real dispute between the parties as to the general facts, which have been outlined above.
The Legal Framework
The relevant provisions of the Workers Compensation Act1987 (the 1987 Act) are:-
“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
(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."
15. Diseases of gradual process--employer liable, date of injury etc
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process:
(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
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.
(2) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any employment to the nature of which the disease was due shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) ...
(3) Total or partial loss of sight which is of gradual onset shall for the purposes of subsection (1) be deemed to be a disease and to be of such nature as to be contracted by gradual process.
(4) In this section, a reference to an injury includes a reference fo a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4A) In this section, a reference to employment to the nature of which a disease was due includes a reference to employment the nature of which was a contributing factor to the disease…
16. Aggravation etc of diseases--employer liable, date of injury etc
(5)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
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(6) Any employers who, during the 12 months preceding a worker's death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) ...
(7) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3…”
The Evidence discussed
In her statement dated 4 May 2020 the applicant said:
“I continued this employment (outlined above) until I had my injury on or around 1 April 2009…
As a result of that injury… some adjustments were made to my workplace…
Despite the adjustments I continued to have ongoing problems…
In 2014 I was moved from my modified workstation…doing a similar type of work…I noticed a very sharp increase in my symptoms and that my pre-existing condition which had been relatively under control…suddenly began to deteriorate rapidly again. As a result…I put in a further claim in March 2015…
I requested a transfer…which was granted…
Following the transfer I continued to have increased symptoms however I managed to maintain my duties up until around 2018 by simply getting treatment…
In 2018 there was an increase in my workload…with increase in the use of the mouse and data entry…As a result of this my symptoms further deteriorated…I then had surgery…
I have now returned to work since 6 January 2020 doing 2 hours per day, 2 days per week…
Following [my] claim lodged in 2018 liability was accepted for my injury…
The dispute in these proceedings is that the insurance company believed that my injury dates back to 2009 and have accordingly calculated my PIAWE based on my earnings in 2009.
It is my view that that is not a fair interpretation of what occurred. It is my view that I sustained further injury or at least further aggravation or acceleration of the injury as a result of the nature of my work following the original injury which caused a permanent worsening of my condition to the point when I was then unable to work…”The applicant saw Dr Pope, neurosurgeon, in October 2018. Dr Pope recorded a history obtained from the applicant that she had sustained a work injury in 2009 which had been managed non-surgically for about six years but that symptoms had deteriorated “over the last few years.”
In a report dated 25 February 2019 by Dr Nahza of the Sydney Pain Specialists group, he said:
“Long standing cervical spine pain. Is a right-handed cartographer with a previous work-related injury in 2009, accepted by workcover, has recently had to take time off work secondary to her pain.”
Dr Khan saw the applicant at the request of Dr Nahza on 29 May 2019. He said:
“Mrs Patterson is a cartographer who presents with a history of chronic neck pain since 2009. To date, her chronic neck pain has been conservatively managed with multiple treatment modalities (e.g. CT guided cortisone injections into right C5/C6 facet joint and CS/C7 facet joint, acupuncture, remedial massage, pilates, physiotherapy and yoga). In addition, multiple specialists have assessed her…”
Dr John Sheehy saw the applicant at the request of the insurer on 10 September 2020. In a report dated 13 September 2020 he said:
“She had a neck injury [in 2009].
Between 2009 and 2013 there was neck pain and headache intermittently with at times pins and needles. She was managed with physiotherapy, rest, acupuncture and medication and she continued with her work…
There was a recurrence of pain in 2015 and in June 2018 there was an increase in the neck pain with pins and needles [and] vertigo…”Dr Sheehy provided answers to the following questions:
1. “Please provide your current diagnosis for the compensable injury
She has degenerative cervical spondylosis at C5/6 and C6/7 which has been managed surgically on 5 September 2019.
2. Please advise if there are any factors outside of work that are contributing to the current diagnosis.
No. There are no factors outside the work which is contributing to the current diagnosis.
3. In the case of a disease injury, please provide your opinion as to whether Suzanne's employment continues to be the main contracting factor to the contraction of that disease, or the main contracting factor to the aggravation, acceleration, exacerbation or deterioration of a pre-existing condition? Please explain your answer
Her employment is the main contributing factor to the aggravation of the pre-existing condition. She does have cervical spondylosis established at C 5/6 and C6/7 levels.
4. Please comment upon the cause of any incapacity, as identified by you and whether this continues to be related to the original workplace injury.
She continues to be affected by the symptoms of degenerative disease affecting the C56 and C67 levels. There have been multiple injuries to her neck over the years which have exacerbated these degenerative changes.”
The applicant qualified Dr Dias who wrote a report dated 13 July 2020. He said:
“At the time of the deemed date of the injury (6 August 2018) [her] job role was that of a Senior Special Services Officer…
[She] began to experience worsening symptoms of pain, stiffness and discomfort affecting her neck with radiation to her right shoulder and right arm in around April 2009…”
Dr Dias’ opinion is best summed up by the submissions.
In relation to this report, the respondent submits as follows:
“Dr Dias recorded a history that following her workers compensation claim in 2009, the applicant had undergone ‘extensive conservative non-surgical treatment measures between 2009 and 2011…’Dr Dias noted that the applicant ‘continued to experience ongoing symptoms of pain, stiffness, and discomfort affecting her cervical spine and associated headaches and radicular sensory symptomatology affecting her right upper limb.’ The doctor also noted that ‘her symptoms persisted and tended to be exacerbated by her computer- based work duties with her long-term employer.’
Dr Dias provided a diagnosis of symptomatic degenerative cervical spondylosis with associated disc degeneration at the C5/6 and C6/7 levels. The doctor noted that the applicant had undergone cervical fusion and discectomy surgery in September 2019, which had resulted in the resolution of her right arm symptoms but she had been left with ongoing neck pain.
Dr Dias was asked the leading question: ‘Is it your opinion that the deemed date of injury is 6 August 2018?’ In response, Dr Dias stated that the applicant’s ‘employment related incapacity is solely attributable to her condition of symptomatic degenerative cervical spondylosis, which in my opinion has been caused by the nature and conditions of her employment over the course of 30 years…’
Dr Dias then goes on to comment that from 2009 until August 2018, the applicant ‘suffered a disease of gradual process due to the nature and conditions of her employment namely the progression of symptomatic degenerative cervical spondylosis.’ The doctor states that ‘the 2009 injury reflects the first symptomatic expression of her work related degenerative cervical spondylosis.’”
In contrast, the applicant submits Dr Dias responded to the questions asked of him as follows:
“Do you believe that work was a substantial contributing factor to our client's injury?
Yes, given that Ms Patterson's cervical spine condition is in my opinion solely attributable to the long-term nature and conditions of her employment, in my opinion Ms Patterson's employment ... remains the main substantial contracting factor to her cervical spine condition.
If you believe that our client's injury is a disease and/or was an aggravation, acceleration, and/or exacerbation of a pre-existing condition or disease, do you believe that... employment was the main contributing factor to the injury?
In my opinion Ms Patterson cervical spine condition reflects a disease of gradual process to which her employment has been the main contracting factor. Please refer to my answer to question six in the first schedule of questions for my reasoning in this regard.”
The Submissions
The applicant makes the following submissions:
(a) The term ‘disease’ is not a defined term. The meaning will therefore have its ordinary English meaning.
(b) The possibilities are that Ms Patterson's incapacity for work has been caused by:-
(a)The 2009 injury;
(b)A further injury;
(c)A disease injury occurring in 2009;
(d)A later disease injury;
(e)An aggravation, acceleration, exacerbation or deterioration of the 2009 disease injury;
(f)The aggravation, acceleration, exacerbation or deterioration of a subsequent disease injury; or,
(g)Some combination of all or any of the above alternatives.
Once the above controversy is resolved, then sections 15 and/or 16 of the Act may be applied to give rise to the ‘deemed date of injury’.
(1)In summary the totality of the applicant's condition arises from the totality of her employment with the respondent however there was a particular period in 2018 which… was an increase in the workload which required significant increase in the use of the mouse and data entry which, in the applicant's opinion, resulted in an acceleration of her condition. To submit, as the respondent does, that the employment after 2009 played no part in causing the applicant's incapacity is unsustainable on the facts, the evidence and expert opinions…
(2)Ms Patterson's incapacity since August 2018 was not caused by her injury in 2009. As stated above the respondent's case to the contrary ought to be rejected as being against the evidence, contrary to expert opinion and contrary to common sense.
(3)The worker's evidence in the medical opinion all describe a degenerative disease which led to the incapacity since 6 August 2018. The worsening of the condition and thus the incapacity in particular arises out of the failure to provide an ergonomic workplace and the increased workload in 2018. These facts cannot simply be disregarded in the manner suggested by the respondent.
(4)The facts in this case do not cause any difficulty in the literal application of sections 15 and 16 of the 1987 Act. The Act is to be given its literal interpretation as confirmed in the authority such as GIO Workers Compensation (NSW) Ltd v GIO General Ltd (1995) 12 NSWCCR 187 per Sheller JA (at 195F-G) (Priestley and Clarke JJA agreeing); P & 0 Berkeley Challenge Pty Ltd v Alfonzo [2000] NSWCA 214; 49 NSWLR 481; Alto Ford Pty Ltd v Antaw [1999] NSWCA 234; 18 NSWCCR 246 where Sheller JA said at (15]:
"Section 15(4) [which is in the same terms ass 16(3)] provides that ins 15 a reference to an injury includes a reference to a loss or impairment for which compensation is payable under Div 4 of Pt 3 [of the 1987 Act]. Loss of vision is such a loss; sees 66 and the Table to Div 4 of Pt 3 therein referred to. The combined effect of subs (3) and (4) means that the condition for the application of subs (1) of s 15 is met. The respondent suffered an injury within the meaning of s 15, namely, loss of vision which was a disease which was of such a nature as to be contracted by a gradual process. Accordingly, the iniury is, for the purposes of the Act, if incapacity has resulted, and since the respondent is alive, deemed to have happened at the time of incapacity: s 15(1)(a)(i). Her Honour found that this incapacity occurred, other than for the purpose of s 66, in 1992 and for the purpose of s 66 in 1996." (emphasis added).
His Honour observed (at (18]) that s15(l)(a) speaks of incapacity that has resulted from "the injury", that is, "the injury referred to in the condition which makes the subsection applicable". His Honour added:
"Thus, if the injury is loss of vision measured by Dr Higgins in September 1991, and the incapacity is that described by Dr Higgins in March 1992 when he said that the respondent found himself unable to work on motor vehicles, then that is the incapacity which determined fictionally when the injury happened. That must have been after 30 June 1987."
The respondent submits as follows:
(a) In the statement of reasons given in the dispute notice, the respondent relied on the opinion of Dr Pope, neurosurgeon and the opinion of Dr Khan occupational physician to support its position that the basis for any entitlement that applicant has to weekly compensation and lump sum permanent impairment compensation is due to the effects of the 2009 injury and not due to injury the cause or aggravation of a disease condition within the meaning of section 4(b) of the 1987 Act.
(b) The applicant saw Dr Pope, neurosurgeon, in October 2018. Dr Pope recorded a history obtained from the applicant that she had sustained a work injury in 2009 which had been managed non-surgically for about 6 years but that symptoms had deteriorated “over the last few years.” The history Dr Pope recorded as having been provided by the applicant does not support the applicant’s assertion that her increased neck and right arm symptoms were due to changes in the amount of work in 2018. Dr Pope diagnosed a “repetitive strain type work injury” with the pathology identified as degenerate inflammatory arthropathy and bulging discs with foraminal stenosis. Dr Pope did not attribute the cause of the applicant’s symptoms and pathology identified at the time of his examination to be caused by aggravation, exacerbation etc within the meaning of section 4(b)(ii) of the 1987 Act.
(c) Dr Khan, orthopaedic surgeon examined the applicant in May 2019. In a report dated 29 May 2019 (Reply 2), Dr Khan recorded a history that the applicant had suffered “a history of chronic neck pain since 2009.” Dr Khan did not record any history provided by the applicant to support a finding that the applicant’s symptoms or pathology had been aggravated, exacerbated etc to satisfy the requirements for a finding of injury under section 4(b) of the 1987 Act.
(d) Dr Dias’ opinion appears to rest on the basis that the employment caused the degenerative cervical spondylosis without offering any properly reasoned basis for that opinion. However, the doctor then changes his opinion in answer to the further question about the cause of the applicant’s condition stating that the degenerative cervical spondylosis was “caused and aggravated” by the nature of the applicant’s work.”
(e) The applicant bears the onus of establishing that the deemed date of injury is 6 August 2018. The applicant principally relies on the opinion of Dr Dias as evidence to support that finding. The respondent submits that the opinion of
Dr Dias does not provide a proper evidentiary support for that finding.(f) Dr Dias does not provide a proper basis for his opinion that the nature of the applicant’s work with the respondent “caused” or “aggravated” degenerative cervical spondylosis.
(g) The Evidence Act 1995 does not apply to proceedings in the Commission, however it is a useful reference, providing a guide to the determination of the weight to be given to certain evidence…
The respondent then cites a number of authorities relating to issues including the weight of evidence and the requirements for expert evidence to be admissible to proceedings in a non-evidence based jurisdiction such as the Workers Compensation Commission.
I do not intend to repeat all those submissions and the authorities to which the respondent refers.
The respondent makes further submissions as follows:
(a) The Workers Compensation Rules 2006, r 15.2 provides:
Principles of procedure.
When informing itself on any matter, the Commission is to bear in mind the following principles:
(i)evidence should be logical and probative,
(ii)evidence should be relevant to the facts in issue and the issues in dispute,
(iii)evidence based on speculation or unsubstantiated assumptions is unacceptable,
(iv)unqualified opinions are unacceptable.
(v)The Workers Compensation Commission Rules 2006, r 15.2 superseded, but replicated in identical form, the Workers Compensation Commission Rules 2003, r 70.
(b) The respondent submits that Dr Dias has not satisfied the requirements for acceptance and weight to be given to his opinion that the nature of the applicant’s work between 2009 and 2018 “caused and aggravated” the degenerative cervical spondylosis. In relation to the doctor’s conclusion that the nature of the work caused the condition, Dr Dias fails to identify (in a meaningful way that satisfies the requirements of the applicable case law discussed above) how the work between 2009 and 2018 caused the degenerative condition when he expressly acknowledges that the reported injury in 2009 was the first “symptomatic expression” diagnosed condition.
(c) In relation to the further aspect of Dr Dias’ opinion that the nature of the work between 2009 and 2018 caused an aggravation etc of the underlying degenerative cervical spondylosis, Dr Dias has not provided a properly reasoned analysis for that opinion and his statement to that effect is, to use the words of Lord President Cooper in Davie v The Lord Provost; Magistratesand Councillors of the City of Edinburgh 1953 SC 34, a “bare ipse dixit.”
(d) Dr Dias opinion is also open to challenge on the basis that evidence does not provide fair climate for the underlying factual assumptions on which his opinion is based: Paric v John Holland Constructions Pty Limited [1985] HCA 58. Without making clear the basis of his opinion, it seems that Dr Dias relied on that after 2011 the applicant’s symptoms “tended to be exacerbated by her computer based work duties…”That history is not supported by the history and opinion in the reports of the applicant’s treating neurosurgeon, Dr Pope, and the report of Dr Khan. Dr Pope recorded a history of a work injury in 2009, which the doctor described as a repetitive strain injury. The doctor did not refer to any ongoing exacerbations in the condition due to work causes between 2009 and 2018. Similarly, Dr Khan in May 2019 recorded a history of “chronic neck pain since 2009.” He did not record any history of changes in the applicant’s symptoms or work duties between 2009 and 2018 that would support a finding sufficient to satisfy section 4(b)(ii).
(e) Support of the respondent’s position can be found in other places in the evidence relied on by the applicant. Dr Sheehy recorded a history that the applicant experienced intermittent neck pain and headache between 2009 and 2013 and suffered a “recurrence of pain in 2015 and June 2018” with an increase in symptoms. However, Dr Sheehy did not identify any specific aggravating factors related to work during that period. Dr Sheehy’s conclusion that “employment is the main contributing factor to the aggravation of a pre-existing condition” does not support a finding that the aggravation occurred after the onset of symptoms in 2009.
(f) The applicant also relies on the clinical records of her GP. The clinical records do not support a finding that the applicant’s work duties between 2009 and August 2018 aggravated her degenerative cervical spondylosis such as to satisfy the requirements of section 4(b)(ii). The entries relating to neck and right arm pain in 2014 and 2015 do not record any complaint by the applicant of increased symptoms due to changes in or increased work activities. The presence of those recorded symptoms is equally consistent with the respondent’s case that they are caused by the effects of the accepted 2009 injury.
FINDINGS AND REASONS
My overall impression of the applicant’s case is that it has been carefully constructed to support the ‘disease’ finding the applicant seeks to establish.
I say that because, to begin with, the applicant’s statement seems somewhat contrived to fit the narrative that the applicant wishes to maintain.
For example, she said that “As a result of that injury [the 2009 injury]… some adjustments were made to my workplace [but] despite the adjustments I continued to have ongoing problems.” In other words, she had ongoing symptoms from 2009.
She also said:
“It is my view that that is not a fair interpretation of what occurred. It is my view that I sustained further injury or at least further aggravation or acceleration of the injury as a result of the nature of my work following the original injury which caused a permanent worsening of my condition.”
That is not the sort of comment I would expect from a lay person and again reflects the ‘disease’ narrative the applicant now claims.
I make these observations not in any critical sense of either the applicant or her legal advisors but rather in the context of the weight I give to all of the evidence before me.
I find the opinions of treating specialists particularly persuasive and in this case, the opinions of Drs Pope, Nahza and Khan, all of whom recorded a history of a “work injury” in 2009 with ongoing symptoms which fluctuated in severity.
Dr Dias’ report clearly identifies the particular questions he was asked to address.
To describe the question: “Is it your opinion that the deemed date of injury is 6 August 2018?” as “leading” is an understatement.
Moreover, the opinion of Dr Dias in my view is both misleading and inconsistent. He recorded a history that following her workers compensation claim in 2009, the applicant “continued to experience ongoing symptoms of pain, stiffness, and discomfort” affecting her cervical spine and right arm. The doctor also noted that “her symptoms persisted and tended to be exacerbated by her computer- based work duties with her long-term employer.”
Dr Dias provided a diagnosis of symptomatic degenerative cervical spondylosis with associated disc degeneration at the C5/6 and C6/7 levels.
In response to the “leading” question referred to above, Dr Dias stated that the applicant’s “employment related incapacity is solely attributable to her condition of symptomatic degenerative cervical spondylosis, which in my opinion has been caused by the nature and conditions of her employment over the course of 30 years…”
Dr Dias then says that from 2009 until August 2018, the applicant “suffered a disease of gradual process due to the nature and conditions of her employment namely the progression of symptomatic degenerative cervical spondylosis.”
As the respondent correctly points out:
“Dr Dias has not satisfied the requirements for acceptance and weight to be given to his opinion that the nature of the applicant’s work between 2009 and 2018 “caused and aggravated” the degenerative cervical spondylosis. In relation to the doctor’s conclusion that the nature of the work caused the condition, Dr Dias fails to identify…how the work between 2009 and 2018 caused the degenerative condition when he expressly acknowledges that the reported injury in 2009 was the first ‘symptomatic expression” diagnosed condition.’”
I also agree with the respondent’s submission that there is no other evidence in support of the proposition that the applicant’s symptoms “tended to be exacerbated by her computer- based work duties…”
None of the applicant’s treating specialists or general practitioners and other related treatment providers have recorded any such history.
The applicant’s submission that there are at least seven ‘options’ which may be considered in determining the nature of the injury is neither helpful nor evidence-based.
In my view, the only support for a finding of a ‘disease’ type injury with a deemed date of 2018 is the opinion of Dr Dias which I regard as flawed for the reasons stated above.
Dr Sheehy’s report must also be read in context. Although he said: “She continues to be affected by the symptoms of degenerative disease affecting the C56 and C67 levels. There have been multiple injuries to her neck over the years which have exacerbated these degenerative changes” he doesn’t identify those ‘injuries’, and there is no other evidence that any such ‘injuries’ occurred. His conclusion that “employment is the main contributing factor to the aggravation of a pre-existing condition” does not support a finding that the aggravation occurred after the onset of symptoms in 2009.
The applicant is at pains to point out that it was the increased work-load and use of the mouse in 2018 that resulted in an ‘injury’ but no such history was given to any treating doctors.
Overall, I am persuaded by the respondent’s submissions, for the reasons stated, that the applicant has failed to establish that she suffered an injury within the meaning of section 4(b)(i) or section 4(b)(ii) of the 1987 Act due to the nature of her employment between April 2009 and August 2018.
The proper interpretation of all the evidence in my view is that the applicant suffered an injury in the course of her employment on and prior to 1 April 2009 which was further exacerbated over the years up to August 2018.
Accordingly, there will be an award for the respondent in respect of the allegation of a deemed date of injury of 6 August 2018.
The applicant is entitled to weekly compensation from 6 August 2018 at the rate applicable to the injury on 1 April 2009.
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