Perlidis v Brambles Security Services Ltd
[2023] NSWPIC 467
•13 September 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Perlidis v Brambles Security Services Ltd [2023] NSWPIC 467 |
| APPLICANT: | Arthur Perlidis |
| RESPONDENT: | Brambles Security Services Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 13 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant claims permanent impairment compensation payable under section 66 for injury sustained in the course of his employment with the respondent; the applicant claims permanent impairment compensation resulting from injury sustained on |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent in respect of the applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 for permanent impairment resulting from injury consequent on the nature and conditions of his employment with the respondent, with deemed date of injury of 5 February 1996. 2. Award for the respondent in respect of the applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 for permanent impairment resulting from injury to his neck with date of injury of 3 August 1992. 3. The applicant’s claim for further permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 is to be remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 3 August 1992. b. Body systems/parts: back, left leg at or above the knee, and right leg at or above the knee. c. Method of assessment: Table of Disabilities. 4. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents; b. Replies and attached documents; c. Application to Admit Late Documents dated 16 May 2023 lodged on behalf of the applicant; d. Application to Admit Late Documents dated 20 June 2023 lodged on behalf of the respondent, and e. Application to Admit Late Documents dated 28 June 2023 lodged on behalf of the respondent. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Arthur Perlidis (Mr Perlidis) was previously employed by the respondent, Brambles Security Services (Brambles), working as a security guard. Mr Perlidis commenced working with Brambles in or about 1982. Mr Perlidis’ employment with Brambles was terminated in 1996. Mr Perlidis is currently 64 years of age.
In these proceedings Mr Perlidis essentially relevantly alleges injury sustained in the course of his employment with Brambles in the following terms:
“Date of injury: 7/06/1990
…
The applicant sustained injury to his back whilst travelling in a Brambles truck.
Nature and conditions of employment, aggravating back, neck and shoulders.
…
Date of injury: 3/08/1992
…
The applicant sustained injury to his back when pulling a heavy steel box from his vehicle.
Nature and conditions of employment, aggravating back, injury to neck and shoulders whilst carrying out coinage work and lifting heavy bags of coins.
Aggravation, acceleration and or disease of gradual process.”
In these proceedings Mr Perlidis claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (the 1987 Act), with a date of injury of
3 August 1992, in the following terms:(a) 45% permanent impairment of the back;
(b) 10% permanent impairment of the neck;
(c) 10% loss of the right arm at or above the elbow;
(d) 10% loss of left arm at or above the elbow;
(e) 15% loss of right leg at or above the knee, and
(f) 15% loss of the left leg at or above the knee.
However, it is understood that the deemed date of alleged injury to Mr Perlidis’ neck, back and both shoulders resulting from the nature and conditions of Mr Perlidis’ employment with Brambles is 5 February 1996.
Mr Perlidis’ claim for permanent impairment compensation is disputed. In essence, Brambles disputes Mr Perlidis sustained injury as a result of the nature and conditions of his employment with Brambles, with a deemed date of injury of 5 February 1996, Brambles disputes Mr Perlidis sustained injury to his neck, with a date of injury of 3 August 1992, and Brambles disputes
Mr Perlidis has entitlement to any further compensation payable for permanent impairment of his back, loss of use of his left leg at or above the knee and/or loss of use of his right leg at or above the knee, with a date of injury of 3 August 1992 as alleged.The following is relevant to Mr Perlidis claim:
(a) Consent Orders of Armitage J dated 15 June 1995 provide:
i.$15,252 for 20% permanent impairment of the back, and
ii.$4,766.25 for 5% left leg at or above the knee.
(b) Determination of Bagnall J dated 5 December 2003 provides:
i.$6,000 for further 10% permanent impairment of the back, and
ii.$1,850 for further 2.5% loss of left leg at or above the knee.
(c) Consent Orders of Arbitrator Nolan dated 30 October 2012 provide:
i.award for respondent (Brambles) in respect of allegation of injury to the neck;
ii.respondent (Brambles) does not dispute the Applicant sustained injury to his back and right and left legs on 3 August 1992 in the course of his employment with the respondent;
iii.$1,875 for 2.5% loss of use of the right leg at or above the knee, and
iv.$2,000 for further 5% permanent impairment of the back.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Mr Perlidis sustained injury to his neck, right arm and left arm as a result of the nature and conditions of his employment with Brambles, with a deemed date of injury of 5 February 1996 (Mr Perlidis did not press the allegation of injury to back);
(b) the effect of the Consent Order dated 30 October 2012 in which an award was entered for Brambles in relation to the injury Mr Perlidis sustained to his neck;
(c) percentage permanent impairment sustained by Mr Perlidis resulting from injury consequent on the nature and conditions of his employment with Brambles, with a deemed date of injury of 5 August 1996 (if any), and
(d) further percentage permanent impairment of the back and/or loss of left leg at or above the knee and/or loss of right leg at or above the knee, with date of injury of 3 August 1992.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
While these proceedings initially came before Member Haddock for preliminary conference on 22 May 2023, Mr Perlidis’ claim was unable to resolve on that occasion. These proceedings then came before me for conciliation/arbitration hearing on 27 June 2023 with Mr Carney of counsel appearing on behalf of Mr Perlidis and Ms Belandra of counsel appearing on behalf of Brambles.
Following my discussions with counsel 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.
While Mr Perlidis was not present during the conciliation phase, he was joined by MS Teams to the arbitration hearing of his claim.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Replies and attached documents;
(c) Application to Admit Late Documents dated 16 May 2023 lodged on behalf of
Mr Perlidis;(d) Application to Admit Late Documents dated 20 June 2023 lodged on behalf of Brambles, and
(e) Application to Admit Late Documents dated 28 June 2023 lodged on behalf of Brambles.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statements of Mr Perlidis
While Mr Perlidis has provided a number of statements, in submission Mr Carney referred to Mr Perlidis’ statement dated 7 August 2021. Mr Perlidis relevantly said:
“The coin bags from the Reserve Bank that each weighed between 11kg to 14kg were wrapped up in a calico bag and depending how they were wrapped there would be ties at the ends of the bag. This presented extra difficulty with their weight when carrying.
In relation to the coin bags from the Reserve Bank, as they were rolled up, when dropped on the shoulders would dig into that area of the shoulder. This placed extra strain and discomfort as well as pressure in those spots which was painful. The calico bags were dropped on top of each other (making a total of up to 4 bags). Later I also developed an injury to my cervical spine due to the nature and conditions of my work, that is due to the repetitive nature of the work carrying heavy items … This caused much discomfort to me.
…
During the course of my employment with the respondent I had a difficulty job which involved lifting heavy items. It involved use of my arms, shoulders and involved lifting 22-44kg on my shoulders, and 22-56kg with my arms carrying over large distances. When I injured myself, I reported the injuries that then occurred. I can give no explanation as to why relevant doctors did not note that I suffered an injury to my cervical spine…
The coin bags each weighing between 11kg and 14kg were wrapped in a calico bag. Depending on how they were wrapped, there would be ties at the end of the bag. This presented extra difficulty with their weight whey carrying them. There was no purpose built handles and I needed to use my hand and wrist strength in order to hold onto the bags and swing them around and load them into the truck.
I submitted WorkCover certificates. Whilst I was being paid I never gave it any second thought as to what injuries the insurance company accepted. I was concerned about my employment because management for a time was warning me that I could get the sack if I didn’t get better and returned to working in armoured vehicles. I was terminated on 3 March 1995 and following the intervention of the union about 6 weeks later was re-instated on 18 April 1995… Then I finally loss of my job on 16 February 1996.
…
When the law changed in June 2012 I received notification from the insurer that my payments would be suspended in 2017.
…
At some stage I instructed Ms Cindy Swan, Solicitor in Bathurst. She filed an ARD on 26 July 2012 which came up for telephone conference. At the teleconference I instructed her to discontinue the claim because there was insufficiency in evidence. I subsequently found out that in fact an award had been made in favour of the Respondent for my cervical spine. I never gave her those instructions. She and I clearly misunderstood what we were settling…
The work diaries were completed by me…
At work, the daily runs, as they were called, were the armoured truck run for the day…
During the course of my employment with the Respondent I worked over a long period of time for up to 70 hours per week on a regular basis doing different duties.”
Work diaries
The work diary entries of Mr Perlidis are in evidence and set out the frequency with which
Mr Perlidis worked. The diary entries demonstrate Mr Perlidis went to various financial institutions collecting and depositing the coin bags on a regular basis, with Mr Carney submitting that Mr Perlidis was clearly “doing a lot of lifting”.
Copy letter
A file copy letter dated 30 October 2012 addressed to Mr Perlidis from his former solicitors McIntosh McPhillamy & Co is in evidence. The writer relevantly wrote:
“We refer to your attendance upon Cindy Swan of our office this morning for the purposes of undergoing a teleconference between the Workers Compensation Commission in relation to your worker’s compensation claim.
The teleconference proceeded before Arbitrator Denis Nolan and resolution of your dispute was made. As discussed at the teleconference the Arbitrator expressed his concern in relation to your chances of success in making a claim for your neck given the time delay in relation to reporting your neck injury to the insurer. Accordingly the claim in relation to the neck was discontinued and we proceeded with discussions in relation to a settlement of your back and right leg …”
Treating medical evidence
Diagnostic imaging
X-ray and CT cervical spine dated 6 April 2001, reported by Dr B Raffles:
“Conclusion: there is minor degree of narrowing of the right intervertebral foramen at C2-3 and there is very slight central disc bulging at C6-7. There was no other definite abnormality.”
Dr Jones
Mr Perlidis came under the specialist care of Dr Jones and Mr Perlidis has been reviewed by Dr Jones on a number of occasions. Dr Jones is a consultant in rehabilitation medicine.
Dr Jones has provided a number of reports, the first in time being dated 1 October 1997. In this report Dr Jones noted Mr Perlidis was first seen by her on 20 April 1993 “with complaints of pain in his right and left lumbar spine which was present most of the time”.Over time there is no mention in Dr Jones’ reporting of complaint of neck, right arm and/or left arm injury until she reported on 23 June 2011 regarding examination:
“His neck movements were similarly very restricted and painful.
He had normal power, sensation, and reflexes in his arms.”
At the time of this reporting Dr Jones had available to her the CT scan of the cervical spine dated 6 April 2001, which she said “revealed no significant abnormalities”. In response to specific questioning, Dr Jones relevantly said of Mr Perlidis:
“I have given you the history of back pain precipitated by lifting heavy coins at Brambles. This has caused back, neck and leg pain.
He also has … cervical spine pain with a radicular spread of pain into his left arm.
He had very limited cervical movement.
He has spasm in …. the cervical spine
…
He has 10% permanent impairment of the cervical spine.”
In a short report dated 29 August 2011 Dr Jones wrote:
“Mr Perlidis stated his neck pain was not new but related to his injuries in Brambles when he injured his back. He had a CT of the cervical spine in 2001 which did not reveal significant abnormalities.
I would consider that he is getting pain spreading from his back to his neck. I have recorded his neck movements as being very limited and painful.”
In her next report dated 5 December 2013 Dr Jones reported Mr Perlidis’ neck pain had continued “with pain down his left arm and paresthesia in his left hand” although an EMG performed on 26 July 2013 “did not show significant abnormality”. On examination Dr Jones reported “his neck was stiff and painful with limited rotation, particularly to the left”. At the time of reporting Dr Jones had available to her a CT scan of the cervical spine dated
27 June 2013, which she reported:“showed focal C3/4 and more broadbased C4/5 posterior disc protrusions without overt cord compression. It also showed diffuse C5/6 and predominately left C6/7 posterior disc osteophyte complex with a degree of cord compression probably present at C5/6 but compromised left lateral recess and foramen at C6/7 likely compromising the exiting left C7 nerve root.”
Dr Mutton
Mr Perlidis came under the orthopaedic care of Dr Mutton following referral from Dr Pulley. In his report dated 26 June 2013, Dr Mutton relevantly wrote:
“As you know Mr Perlidis suffers from pain in his neck…
Mr Perlidis does have some restriction of cervical spinal movement and his neck is tender to palpate posteriorly. He has a little hyper reflection in his upper limbs and he can only abduct his shoulders to 90 degrees.”
As Dr Mutton accepted “there is not enough pathology evident on the CT scan of his neck to produce neurological problems” he made arrangement for nerve conduction studies and review. There is no further reporting by Dr Mutton in evidence.
Independent medical evidence
Dr Scougall
Mr Perlidis was assessed by Dr Scougall in his capacity as independent medical examiner. Dr Scougall is an orthopaedic surgeon. Dr Scougall has provided two reports, with the first in time being dated 31 March 1995. There is no mention in Dr Scougall’s reporting of complaint of neck and/or right arm and/or left arm injury.
Dr Pollack
Mr Perlidis was assessed by Dr Pollack in his capacity as independent medical examiner.
Dr Pollack is an orthopaedic surgeon. Dr Pollack provided a number of reports, with the first in time dated 19 February 1993. There is no mention in Dr Pollack’s report of complaint of neck and/or right arm and/left arm injury.
Dr Anderson
Mr Perlidis was assessed by Dr Anderson in his capacity as independent medical examiner. Dr Anderson is an occupational physician. Dr Anderson provided a report dated
10 March 1998. There is no mention in Dr Anderson’s reporting of complaint of neck, and/or right arm and/or left arm injury. However there is this comment regarding treatment:“He did some swimming earlier on but complained that this tended to cause an ache in his upper back. I expect that his technique was probably at fault, and this could be easily corrected.”
Dr Edwards
Mr Perlidis was assessed by Dr Edwards in his capacity as independent medical examiner. Dr Edwards is a general surgeon. Dr Edwards provided a report dated 8 June 2001 and a report dated 11 July 2002. While there is no mention in Dr Edwards’ reporting of complaint of neck, and/or right arm and/or left arm injury, at the time of preparing his report Dr Edwards had available to him a CT scan of the referred cervical spine dated 6 April 2001.
Dr Sekel
Mr Perlidis was assessed by Dr Sekel in his capacity as independent medical examiner.
Dr Sekel is an occupational physician. Dr Sekel provided a report dated 8 June 2001. While Dr Sekel noted he had previously assessed Mr Perlidis on 12 June 1990, no earlier report of Dr Sekel is in evidence. At the time of assessment on 8 June 2001, Dr Sekel had available to him the cervical spine diagnostic imaging dated 6 April 2001 and following examination of Mr Perlidis’ neck, Dr Sekel reported:“He complained of an ache in the neck with forced left lateral flexion and forced dorsiflexion, but all other movements were pain-free and possible through a normal range without associated crepitus or muscular spasm. There was no tenderness of the neck.”
Dr Sekel also examined Mr Perlidis’ shoulders, and reported:
“Examination of the Shoulders
There was no visible or palpable deformity of the shoulders, and there was a full range of pain-free movement of both shoulder joints in all dimensions without associated crepitus or muscular spasm. There was no tenderness.
There was no winging of the scapulae.”
Dr Sheehan
Mr Perlidis was assessed by Dr Sheehan in his capacity as independent medical examiner. Dr Sheehan is an orthopaedic surgeon. Dr Sheehan provided a report dated 9 August 2002. Dr Sheehan accepted that while working for Brambles between 1981 and 1996, Mr Perlidis frequently engaged in heavy lifting and repetitive bending at work. However, there is no mention in Dr Sheehan’s reporting of complaint of neck and/or right arm and/or left arm injury.
Dr Selby Brown
Mr Perlidis was assessed by Dr Selby Brown in his capacity as independent medical examiner. Dr Selby Brown is an orthopaedic surgeon. Dr Selby Brown provided a report dated 28 July 2003. Dr Selby Brown reported at that time:
“Mr Perlidis commenced work with Brambles, Beacon Hill Depot in 1981. He initially worked as a vault hand for two weeks and then transferred to car crew. In car crew his duties involved a lot of lifting and handling of bags and coins, tins of notes/loose change and bullion. He states that the weights of these items could be up to 60 kilograms and involved a lot of bending and twisting and throwing various items up to his partner inside the van. He also had to carry these items various distances depending on the availability of parking. He also regularly performed overtime before and after normal hours ‘up to 70 hours per week’.”
Dr Bosanquet
Mr Perlidis was assessed by Dr Bosanquet in his capacity as independent medical examiner. Dr Bosanquet is an orthopaedic surgeon. Dr Bosanquet has provided a number of reports, the first in time dated 14 July 2011. Dr Bosanquet reported at that time:
“Arthur Perlidis is currently neither working nor employed. He last worked in 2000 as a cleaner. Prior to that, he worked full time in 1996 with Brambles Security Company delivering coins and notes to stores in an armoured vehicle. He had worked this way for fifteen years.”
There is no mention in Dr Bosanquet’s reporting of complaint of neck and/or right arm and/or left arm injury.
Dr O’Keefe
Mr Perlidis was assessed by Dr O’Keefe in his capacity as independent medical examiner. Dr O’Keefe is an orthopaedic surgeon. Dr O’Keefe provided a report dated 3 July 2013. Dr O’Keefe reported at that time:
“He had worked for Brambles as a security guard for 15 years based in Sydney in their Beaconsfield Depot. He was a security guard initially working in armoured cars and injured his back lifting coin bags in 84, 89 and in August and December of 1992. He apparently did a mixture of duties servicing ATM machines etc. and on the above dates he was lifting a heavy bag of coins from an armoured car.”
Following clinical examination and review of diagnostic imaging which included a CT scan cervical and lumbar spine dated 7 June 2013, Dr O’Keefe provided diagnosis which included age related degenerative change to the cervical spine.
Dr Mastroianni
Mr Perlidis was assessed by Dr Mastroianni in his capacity as independent medical examiner. Dr Mastroianni is an occupational physician. Dr Mastroianni provided a number of reports which are in evidence.
In his report dated 15 June 2017, Dr Mastroianni noted the reason for referral was to assess degree of whole person impairment, which included assessment of the cervical spine.
Dr Mastroianni reported at that time:“Mr Perlidis was employed as a security guard and transported money. His work involved a lot of lifting of tins with money and bags of coins were loaded and unloaded to the truck and delivered to clients. He states there was heavy lifting involved.
As a result of the nature and conditions of his work, Mr Perlidis developed neck and back pain.”
Dr Mastroianni reported Mr Perlidis presented with complaint of neck pain and “he says the neck crunches”. On examination Dr Mastroianni reported there was generalised tenderness in the neck and neck movements were restricted in all planes and there was asymmetry.
Dr Mastroianni reported there was generalised discomfort on palpating the shoulders and “shoulder movements were restricted bilaterally with right shoulder flexion of 50 degrees and abduction of 90 degrees. In the left shoulder, flexion and abduction was 90 degrees. Shoulders restricted secondary to generalised arm pain, shoulder discomfort …”
Dr Mastroianni provided diagnosis which included “musculoligamentous strain of the cervical spine” and provided assessment 5% whole person impairment resulting from injury to his cervical spine. In a supplementary report dated 1 August 2017, on request Dr Mastroianni provided opinion that with reference to the Table of Disabilities, Mr Perlidis suffered 10% permanent impairment of the neck.In his report dated 13 November 2019, by which time Dr Mastroianni was aware of the Consent Order dated 30 October 2012, Dr Mastroianni canvasses medical reports provided by Dr Oates, Dr Sekel, Dr O’Keefe and Dr Bosanquet and wrote:
“The history of Dr Sekel, Dr O’Keefe and Dr Bosanquet are consistent with the history I obtained of developing back pain as a result of the nature and condition of his work which included the specific incident in 1992. There is no clear history or documentation supporting an injury to the neck and the certificate of determination stated that there was no longer any liability for injury to the cervical spine.”
Mr Perlidis presented at assessment with “crunching and pain in the neck. He complains of pain in both shoulders…” Following examination Dr Mastroianni noted “neck movements were very restricted with tilt one third normal, rotation half normal, extension quarter normal and flexion three quarter normal… examination of the shoulders revealed tenderness…” While Dr Mastroianni provided diagnosis that included “cervical disc disease and spondylosis, bilateral shoulder tendonitis” he provided opinion Mr Perlidis did not sustain injury to his neck and shoulders as a result of the nature and conditions of his employment. He explained:
“My reasons for this is outlined in the body of the report when I made reference to the reports of Dr Sekel, Dr O’Keefe and Dr Bosanquet.
Those reports particularly the report of Dr Sekel is much closer to the date of injury where the history would have been clearer in that the worker’s recollection would have been far better than it is now and there is nothing in those medical reports which support any injury except for the back. The other conditions in my opinion are constitutional and the fact that he has such widespread symptomology is indicative of a constitutional degenerative disease affecting multiple joints (poly arthritis).”
While Dr Mastroianni provided opinion Mr Perlidis suffered 15% permanent impairment of the neck,10% loss of efficient use of the right arm at or above the elbow and 10% efficient use of the left arm at or above the elbow with reference to the Table of Disabilities, Dr Mastroianni confirmed that he did not consider such impairment to be work related.
In his supplementary report dated 3 February 2020 Dr Mastroianni confirmed he did not consider Mr Perlidis suffered injury and/or permanent impairment to his neck and shoulders as a result of the nature and conditions of his employment with Brambles between 1992 and 1996.
In his report dated 27 November 2020 Dr Mastroianni reported Mr Perlidis presented with “neck pain most of the time. The neck crunches and it clicks. He also complains of neck stiffness. He states his shoulders are sore most of the time”. Following examination
Dr Mastroianni reported:“neck movements were restricted with minimal flexion, neck extension in the order of a third normal and rotation tilt half the normal range…. There is generalised tenderness/discomfort in the cervical spine… both shoulders were tender and restricted… passive range of movements were resisted bilaterally.”
Dr Mastroianni provided diagnosis that included cervical spondylosis, tendonitis of the shoulder and degenerative disease of the AC joints. While Dr Mastroianni again provide opinion Mr Perlidis suffered 15% permanent impairment of the neck, 10% loss of efficient use of the right arm at or above the elbow and 10% loss of efficient use of the left arm at or above the elbow, he confirmed that he did not consider such impairment to be work related.
Dr Oates
In more recent times Mr Perlidis was also assessed by Dr Oates in his capacity as independent medical examiner. Dr Oates is an occupational physician. Dr Oates has provided a number of reports. While Dr Oates’ reports dated 19 August 2019, 8 June 2022 and 23 June 2022 are in evidence, his reports dated 15 September 2018 and 30 November 2018, to which Dr Oates referred in his subsequent reporting, are not in evidence.
In his report dated 19 August 2019, Dr Oates relevantly reported that in 1984 Mr Perlidis had experienced “neck and thoracic and low back pain from lifting bags of cash. He attended a chiropractor. He was given exercises. His pain gradually improved, although he was never 100%.” Dr Oates also reported that Mr Perlidis neck pain “flared up” in November or December 1992 when “he was bent over inside the stationary truck moving coin bags and turning around”. Dr Oates reported “he has noticed increasing shoulder pains with clicking and tenderness at the apex, particularly on the left side.” Dr Oates reported “his neck crunched and became very painful.” Dr Oates described Mr Perlidis as receiving treatment for his “neck and back” under the care of Dr Jones. Following clinical examination, which included examination of his cervical spine and both shoulders, and review of the diagnostic available to him, while Dr Oates relevantly provided opinion “for chronic pain with aggravation of degenerative disease, without neurological deficit, having conservative care,
I assess 5% permanent impairment…I assess 15% loss of use of the right arm as a whole… I assess 18% loss of use of the left arm as a whole” he provided no comment as to causation.In his report dated 8 June 2022 Dr Oates provided comment that he had reviewed multiple reports of Dr Jones and noted that it was not until 23 June 2011 that Dr Jones provided “the first mention of any neck pain”, which she said in her report 29 August 2011 was spreading from the upper back. Following examination, which included examination of the cervical spine and both shoulders, and review of the further diagnostic imaging made available to him on this occasion, while Dr Oates relevantly confirmed there was asymmetric loss of active range of motion of the cervical spine with restriction of active movement of the shoulders, he provided no diagnosis relevant to the cervical spine or the shoulders and in response to specific questioning on causation said:
“Based on the history given to me and the evidence in the file, I consider his employment is a substantial contributing factor to his injuries to the low back and thoracic spine, with referred symptoms in the lower extremity bilaterally, with injuries to the knees in the form of likely medial meniscal tears and patellofemoral joint irritation.”
While Dr Oates did not offer opinion as to permanent impairment sustained by Mr Perlidis resulting from any injury to his cervical spine and both shoulders in his substantive report dated 8 June 2022 in a separate report dated the same day, Dr Oates wrote:
“If the neck/cervical spine is to be considered in proceedings, noting that it has not been the subject of pervious awards, for the guidance of the parties … under the Table of Maims, I assess 10% impairment of the neck, 10% permanent loss of efficient use of the right arm at or above the elbow to include the elbow, and 10% permanent loss of efficient use of the left arm at or above the elbow to include the elbow.”
In a supplementary report dated 23 June 2022, which appears to be in response to specific questioning on causation, Dr Oates wrote:
“In the case of Mr Arthur Perlidis, I am able to say that based on the history I was given of the nature and conditions of his employment from 1984 until 1996, that his employment would have been capable of causing injury to the cervical spine and both upper extremities, because he described duties where he carried tins and bags of coins, and would throw the bags up onto his shoulder to carry them, predominantly the left side so he could keep his right hand free to gain ready access to his pistol if required. Following transfer to this work, which occurred in approximately 1983, he developed neck pain in 1984, along with complaints of low back pain and thoracic pain, for which he attended a chiropractor.
So from the point of view of using experienced judgment as to whether the alleged factor, in this case nature and conditions of employment, in the existing environment did cause injury and therefore permanent impairment, my answer is yes.
This assumes that Mr Perlidis is a witness of credit, and I have no reason to doubt that he is such.
His history given to me when I assessed him previously was consistent with the history given to me at my more recent review in June 2022, and also consistent with the history given to Dr Mastroianni, who has reviewed him several times over the years.
I must admit that I have some uneasiness in this case about definitely assigning causation to cervical spine and upper extremity injuries, based on the complete absence of any contemporaneous medical evidence supportive of such an injury having occurred and being treated during the tenure of his employment or in the near term following his departure from that work. There is no confirmatory treatment record from the chiropractor he attended in 1984, which is understandable considering the length of time that has elapsed, but also no reference to neck and/or shoulder/arm pain from multiple reports for Dr Jones, his treating rehabilitation physician who attended him from 1992, when the first mention of neck pain in a report was not until 2011. I note the first record of investigations of the cervical spine was not until 2001, or five years after he had ceased employment with Chubb.
…
In summary, I can say that the nature and conditions of his employment would have been capable of causing injury to the cervical spine and upper extremities as they were described to me, however in the absence of any corroborative contemporaneous evidence, I cannot be absolutely definitive in stating that his employment was a substantial contributing factor to injuries to the cervical spine and upper extremities. If any contemporaneous medical evidence corroborating injuries to these parts can be located, this would allow me to be much more strongly supportive of a definitive causal link between employment and these additional injuries claimed.”
Medical Assessment Certificate
In previous proceedings in the Workers Compensation Commission (Matter No. 8396/12)
Mr Perlidis was assessed by Dr Assem in his capacity as Approved Medical Specialist for the purpose of providing opinion as to “whether the purchase of special shoes by the Applicant at the Respondent’s expense, namely ASICS Gel Kensei” from Athletes Foot or similar is reasonably necessary medical and related treatment under s 60 of the Workers Compensation Act 1987?”.In the Medical Assessment Certificate dated 30 January 2013 Dr Assam relevantly reported:
“Mr Perlidis informed that he commenced working in around 1982 as a security guard. His duties involved lifting heavy bags of coins. He estimates each bag of coin would weigh 14kg. He would often carry four bags at a time or a total of 56kgs. There were sometimes trolleys available. Sometimes he was required to negotiate stairs and escalators. He estimates that he was carrying 10 tons of coin each day.”
Dr Assam later recorded Mr Perlidis “current symptoms” to include:
“Mr Perlidis complains of a constant neck discomfort that he rates as 5-7/10 on a visual analogue scale. The pain spreads to his upper back and left arm.”
Dr Assam noted Mr Perlidis had not returned to work since around 2000.
Submissions
Mr Carney and Ms Belandra made oral submissions, which I have carefully considered. As a recording of counsels’ submissions is available to the parties on request, I have not reproduced them here.
Determination
Did Mr Perlidis sustain injury to his neck, and/or right arm and/or left arm resulting from nature and conditions of employment with Brambles with deemed date of 5 February 1996?
While Mr Perlidis relevantly alleges the “nature and conditions” of his employment with Brambles resulted in injury to his neck, right arm and left arm, it must be remembered that in the decision of Toplis v Coles Group[1] Deputy President Roche made it clear the term “nature and conditions” is not a term used in the New South Wales workers compensation legislation and said:
“the general reference to the parties and the Arbitrator to a ‘nature and conditions’ injury was unhelpful.”
[1] [2009] NSWWCCPD 70.
However, it must also be remembered that Neilson J had earlier said in Mirkivoic v Davids Holdings PL:[2]
“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 frequently referred to it as a ‘meaningless concept’.
It is used in this place [the then Compensation Court of NSW] 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, eg. 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 s 15 of the Act (where pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within s 16.”
[2] (1995) 11 NSWCCR 656.
While it may be there is admonishment for the use of the term ‘nature and conditions of employment’ as a means to abbreviate the circumstances of injury alleged by an injured worker, it is a fact, as acknowledged by Neilson J above and the Court of Appeal on occasion,[3] that the expression is commonly used in the New South Wales workers compensation area of law.
[3] Switzerland Insurance WC (NSW) Ltd v Burley [1996] NSWCA 512; Wyong Shire Council v Paterson [2005] NSWCA 74.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury, which means a disease that is contracted by a worker in the course of employment and also the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease injury, with employment being a contributing factor to injury. As the date of Mr Perlidis’ alleged injury to his neck, right arm and left arm resulting from the nature and conditions of employment with Brambles is deemed to be 5 February 1996, s 9A of the 1987 Act has no application.
Mr Perlidis has the onus of proving he sustained injury to his neck, right arm and left arm as a result of the nature and conditions of his employment with Brambles, with a deemed date of injury of 5 February 1996 and it is important to recall that in Nguyen v Cosmopolitan Homes (NSW) Limited[4] the court said:
“A number of cases, of high authority, insist for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact.”
[4] [2008] NSWCA 246.
It is also important to recall that relevant to the issue of causation in Kooragang Cement Pty Ltd v Bates[5] the court 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 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 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.”
[5] (1994) 35 NSWLR 452.
While I accept Mr Carney’s submission that the evidence demonstrates that Mr Perlidis’ work duties with Brambles involved “doing a lot of lifting” I echo the considered opinion provided by Dr Oates who accepted that while the nature and conditions of Mr Perlidis’ employment with Brambles “would have been capable of causing injury to the cervical spine and upper extremities” as described to him, he expressed “some uneasiness” with “definitely assigning causation” in circumstances where there was a complete absence of contemporaneous medical evidence supportive of injury occurring and of Mr Perlidis being treated during the period of Mr Perlidis’ employment with Brambles or close in time following Mr Perlidis ceasing employment with Brambles. The absence of documented contemporaneous complaint of injury to his neck and/or right arm and/or left arm by Mr Perlidis to his treating practitioners and the absence of contemporaneous documented complaint of injury to his neck and/or right arm and/or left arm to the independent medical examiners who assessed him during the period of Mr Perlidis’ employment with Brambles and close in time following Mr Perlidis ceasing employment with Brambles is I believe an extremley serious omission in Mr Perlidis’ case.
Following a review of the evidence as a whole and careful consideration of counsel’s submissions, I accept opinion provided by Dr Oates and I do not accept Mr Perlidis has discharged the burden of proof required of him. I do not feel an actual persuasion that
Mr Perlidis sustained injury to his neck, and/or his right arm and/or his left arm consequent on the nature and conditions of his employment with Brambles and I do not accept Mr Perlidis sustained injury to his neck, and/or his right arm and/or his left arm consequent on the nature and conditions of his employment with Brambles with a deemed date of injury of
5 February 1996.
What is the effect of the Consent Order dated 30 October 2012 in which an award was entered for Brambles in relation to the injury Mr Perlidis sustained to his neck (if any)?
While the principles of issue estoppel can apply to consent orders such as those entered into by Mr Perlidis and Brambles on 30 October 2012 in Workers Compensation Commission Matter No 8396/2012 (see Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine[6]) it important to recognise that consent orders only create estoppel between the parties in relation to matters that are necessarily decided (see Habib v Radio 2UE Sydney Pty Ltd[7]).
[6] [2016] NSWCA 213.
[7] [2009] NSWCA 231.
In Matter No 8396/2012 (R AALD 2) Mr Perlidis’ claim included permanent impairment compensation payable under s 66 of the 1987 Act for 10% permanent impairment of the neck with date of injury of 3 August 1992. Mr Perlidis’ claim had been disputed with notice dated
9 September 2011 issued to Mr Perlidis in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) and it is clear from the notice that Brambles did not consider Mr Perlidis had sustained injury to his neck on
3 August 1992. When Matter No 8396/2012 became before the Workers Compensation Commission on 30 October 2012 resolution of those proceedings included an award being entered for Brambles in respect of Mr Perlidis’ allegation of injury to his neck.In these proceedings Mr Perlidis’ claim again includes permanent impairment compensation payable under s 66 of the 1987 Act for 10% permanent impairment of the neck with date of injury of 3 August 1992. Mr Perlidis’ claim has been disputed with a number of notices issued to Mr Perlidis in accordance with s 78 of the 1998 Act and it is clear from the notices dated
9 January 2020, 7 February 2020, 16 December 2020 and 25 January 2023 that Mr Perlidis had been repeatedly advised that an award had been entered for Brambles in respect of his allegation of injury to his neck in Matter No 8396/2012.In Seaib v Hayes Personnel Services (Australia) Pty Ltd,[8] ADP Snell (as he then was) helpfully reviewed the authorities and summarised the principles relevant to the consequence of consent awards and in Bouchmouni v Bakhos Matta t/as Western Red Services[9] DP Roche made a number of pertinent observations:
(a) Consent orders create res judicata estoppels, but only to the extent of what was “necessarily decided”;
(b) to determine what was “necessarily decided” the Commission will closely examine the pleadings and particulars, the s 74 notice, and the legislation, because that material forms part of the mutually known facts and assists in objectively determining the “genesis” and “aim” of the orders;
(c) consent orders should be construed by reference to what a reasonable person would understand by the language the parties have used in the orders, having regard to the context in which the words appear and the purpose and object of the transaction;
(d) where the words in the consent orders are ambiguous, or susceptible of more than one meaning, extrinsic evidence is admissible to show the facts which the negotiating parties had in their minds, but such evidence is not admissible to contradict the language of the orders when it has a plain meaning and is not ambiguous or susceptible of more than one meaning;
(e) prior negotiations that tend to establish objective background facts which were known to both parties and the subject matter of the consent orders will be admissible;
(f) evidence of prior negotiations that are reflective of the parties actual (subjective) intentions is not receivable, and
(g) the interpretation of consent orders is not governed by the parties’ subjective beliefs or understandings or their rights and liabilities. It is an objective test of what a reasonable person would understand by the language in which the parties have expressed their agreement.
[8] [2008] NSWECCPD 36.
[9] [2013] NSWWCCPD 4.
It is evident that in Matter No. 8396/2012 Mr Perlidis sought to litigate a claim for permanent impairment compensation resulting from alleged injury to his neck with date of injury of
3 August 1992, being the same claim Mr Perlidis seeks to litigate in these proceedings, and there is clearly no ambiguity in the consent orders entered into by Mr Perlidis and Brambles in Matter No. 8396/2012 in that Order 1 clearly stated:“Award for the Respondent in respect of the Applicant’s claims of injury to the cervical spine (neck).”
While Mr Perlidis said he provided instructions to his then solicitor Ms Swan to discontinue his claim for compensation payable under s 66 of the 1987 Act for permanent impairment compensation resulting from alleged injury to his neck with date of injury of 3 August 1992 when Matter 8396/2012 came before Arbitrator Nolan for teleconference on 30 October 2012 “because there was insufficiency of evidence” and in her correspondence dated
30 October 2012 Ms Swan confirmed this is what she understood to have occurred, it remains a fact that the Consent Orders issued the same day included an undisturbed award entered in favour of Brambles in respect of Mr Perlidis claim of injury to his neck.I have considered this issue very carefully. Having regard to the evidence as a whole, the authorities (including those referred) and counsels submissions, I am of view in circumstances where an undisturbed award has been entered in favour of Brambles in respect of Mr Perlidis’ claim of injury to his neck in Matter No. 8396/2012, which included Mr Perlidis’ claim for permanent impairment compensation resulting from injury to the neck with date of injury of 3 August 2012, Mr Perlidis may not now re-litigate a claim for permanent impairment compensation resulting from injury to his neck with date of injury of 3 August 2012.
Permanent impairment
I am not satisfied on the balance of probability that Mr Perlidis sustained injury to his neck, and/or right arm and/or left arm as a result of the nature and conditions of his employment with Brambles with deemed date of injury of 5 February 1996. There is to be an award entered in favour of Brambles in respect of Mr Perlidis claim for permanent impairment compensation resulting from injury consequent on the nature and conditions of his employment with Brambles, with deemed date of injury of 5 February 1996.
I am of the view Mr Perlidis cannot now seek to re-litigate alleged injury to his neck, with date of injury of 3 August 1992, in circumstances there is an undisturbed consent award entered on 30 October 2012 in favour of Brambles in respect of Mr Perlidis’ allegation of injury to his neck. There is to be an award entered in favour of Brambles with respect of Mr Perlidis’ claim for permanent compensation resulting from injury to his neck with date of injury of
3 August 1992.
However, It is appropriate that Mr Perlidis’ claim for further permanent impairment compensation payable under s 66 of the 1987 Act for permanent impairment of his back, loss of use of his left leg at or above the knee and loss of use of his right leg at or above the knee, with date of injury of 3 August 1992, be remitted to the President for referral to a Medical Assessor for assessment under the Table of Disabilities.
SUMMARY
I am not satisfied Mr Perlidis sustained injury to his neck, and/or right arm and/or left arm as a result of the nature and conditions of his employment with Brambles with deemed date of injury of 5 February 1996. There is to be an award entered in favour of Brambles in respect of Mr Perlidis’ claim for permanent impairment compensation resulting from injury consequent on the nature and conditions of his employment with Brambles, with deemed date of injury of 5 February 1996.
I am of the view Mr Perlidis cannot now seek to re-litigate alleged injury to his neck, with date of injury of 3 August 1992, in circumstances there is an undisturbed consent award entered on 30 October 2012 in favour of Brambles in respect of Mr Perlidis’ allegation of injury to his neck. There is to be an award entered in favour of Brambles with respect of Mr Perlidis’ claim for permanent compensation resulting from injury to his neck with date of injury of
3 August 1992.It is appropriate that Mr Perlidis’ claim for further permanent impairment compensation payable under s 66 of the 1987 Act for permanent impairment of his back, loss of use of his left leg at or above the knee and loss of use of his right leg at or above the knee, with date of injury of 3 August 1992, be remitted to the President for referral to a Medical Assessor for assessment under the Table of Disabilities.
The documents to be reviewed by the Medical Assessor are:
(a) Application to Resolve a Dispute and attached documents;
(b) Replies and attached documents;
(c) Application to Admit Late Documents dated 16 May 2023 lodged on behalf of
Mr Perlidis;(d) Application to Admit Late Documents dated 20 June 2023 lodged on behalf of Brambles, and
(e) Application to Admit Late Documents dated 28 June 2023 lodged on behalf of Brambles.
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