Pitty v Woolstar Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Pitty v Woolstar Pty Ltd [2022] NSWPIC 395
APPLICANT:	Sean Pitty
RESPONDENT:	Woolstar Pty Ltd
MEMBER:	Karen Garner
DATE OF DECISION:	20 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits compensation for permanent impairment compensation; applicant had accepted bilateral foot injury and injury to neck and right shoulder; whether the applicant has no capacity to work and had no capacity to work since 7 April 2021; Held – applicant sustained bilateral foot injury with a date of injury of 28 December 2017, including recurrent injury on 8 October 2020, and neck and right shoulder injury with a date of injury of 20 November 2018; the applicant’s employment was the main contributing factor to his injury; the applicant has no capacity to work since 7 April 2021; the respondent pay the applicant $811.20 per week from 7 April 2021 to date and continuing pursuant to section 37(1) of the Workers Compensation Act 1987.
DETERMINATIONS MADE:	1. The applicant sustained bilateral foot injury with a date of injury of 28 December 2017, including recurrent injury on 8 October 2020, and neck and right shoulder injury with a date of injury of 20 November 2018. 2. The applicant’s employment was the main contributing factor to his injury. 3. The applicant has no capacity to work since 7 April 2021.
ORDERS MADE:	4. The respondent to pay the applicant weekly compensation in the amount of $811.20 per week from 7 April 2021 to date, and continuing pursuant to s 37(1) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mr Sean Pitty (the applicant) is 41 years old. He commenced employment with Woolstar Pty Ltd (the respondent) as a full-time store-person and picker on 27 February 2017.
On 28 December 2017, the applicant notified the respondent of bilateral foot injury. On 22 February 2018, the applicant lodged a claim in respect of bilateral foot pain. After conservative treatment of bilateral foot pain, on 29 March 2018, the applicant was certified fit for pre-injury duties.
On or about 8 January 2019, the applicant lodged a claim for right shoulder and neck injury. On 15 January 2019, the insurer accepted the applicant’s claim in respect of right shoulder and neck injury. After treatment of the right shoulder and neck injury, the applicant was certified fit for pre-injury duties and the claim was subsequently closed on 16 March 2020.
On or about 3 July 2020, the applicant lodged a claim for aggravation of neck injury.
On 13 August 2020, the applicant reported a recurrence of his bilateral foot pain symptoms. On 12 October 2020, the applicant lodged a claim for bilateral foot injury with a date of injury being 28 September 2020.
By notice dated 28 January 2021 issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), the insurer denied liability for weekly benefits compensation pursuant to s 33 of the Workers Compensation Act 1987 (the 1987 Act) and for medical or related treatment pursuant to ss 59 and 60 of the 1987 Act in relation to bilateral foot pain - plantar fasciitis. The insurer stated that the applicant’s employment with the respondent was not the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of any disease injury or condition as required by
s 4(b)(ii) of the 1987 Act. Further, the insurer stated that the applicant does not present with symptoms or a medical condition that renders him with any total or partial incapacity as a result of a workplace injury as required by s 33 of the 1987 Act. The insurer stated that medical or related treatment was not reasonably necessary and does not arise as a result of a workplace injury as required by s 60 of the 1987 Act.
By notice dated 28 April 2021 issued pursuant to s 78 of the 1998 Act, the insurer denied liability for weekly benefits compensation pursuant to s 33 of the 1987 Act and for medical or related treatment pursuant to ss 59 and 60 of the 1987 Act in relation to the applicant’s cervical spine. The insurer stated that the applicant did not present with symptoms or a medical condition that renders him with any total or partial incapacity as a result of a workplace injury as required by s 33 of the 1987 Act. The insurer stated that medical or related treatment was not reasonably necessary and does not arise as a result of a workplace injury as required by s 60 of the 1987 Act.
By letter of 15 July 2021 (apparently incorrectly dated 15 July 2020), the applicant claimed weekly benefits compensation pursuant to ss 33 and 36 of the 1987 Act and medical or related treatment pursuant to ss 59 and 60 of the 1987 Act in respect of cervical spine injury and bilateral foot injury arising from the nature and conditions of work on 28 December 2017, January 2019 and 13 August 2020 ongoing. The applicant relied on a medical certificate of Dr Moghaddam dated 7 April 2021.
By notice dated 27 July 2021 issued pursuant to s 78 of the 1998 Act, the insurer denied liability for weekly benefits compensation pursuant to s 33 of the 1987 Act and for medical or related treatment pursuant to ss 59 and 60 of the 1987 Act in relation to the applicant’s feet and cervical spine. It stated that there was no evidence of feet injury and that there was no evidence of neck injury due to the nature and conditions of the applicant’s employment. The insurer stated that the neck and feet injuries were not causally related.
It appears from the evidence that the applicant was paid some weekly benefits compensation in respect of both injuries before the insurer declined liability.
The applicant commenced proceedings in the Personal Injury Commission (the Commission) by an Application to Resolve a Dispute (ARD) dated 14 September 2021.
Those proceedings were discontinued on 29 November 2021.
The present proceedings were commenced by an ARD lodged in the Commission on 31 January 2022. The ARD (as amended by direction made on 11 April 2022) claims weekly benefits compensation pursuant to s 33 and 36 of the 1987 Act in the amount of $811.20 (being 80% of pre-injury average weekly earnings of $1,014) for the period from 7 April 2021, and continuing, in respect of:
(a) bilateral foot injury with a date of injury of 28 December 2017, including recurrent injury on 8 October 2020, and
(b) neck and right shoulder injury with a date of injury of 20 November 2018.

PROCEDURE BEFORE THE COMMISSION

On 11 April 2022, the parties appeared at a conciliation arbitration conference and hearing by telephone. The applicant was represented by Ms Eraine Grotte, instructed by Mr John Peisley of John Peisley and Associates Lawyers. The respondent was represented by Ms Sarah Warren, instructed by Mr Robert Passas of BBW Lawyers.
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.

ISSUES FOR DETERMINATION

The respondent accepts the claimed injuries, being bilateral foot injury with a date of injury of 28 December 2017, including recurrent injury on 8 October 2020, and neck and right shoulder injury with a date of injury of 20 November 2018.
The parties agree that the applicant’s weekly pre-injury average weekly earnings is $1,014.
The parties agree that the issue that remains in dispute is whether the applicant has ongoing total or partial incapacity to work as a result of:
(a) bilateral foot injury with a date of injury of 28 December 2017, including recurrent injury on 8 October 2020, and
(b) neck and right shoulder injury with a date of injury of 20 November 2018.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attachments;
(b)    Reply to ARD and attachments;
(c)    applicant’s Application to Admit Late Documents (AALD) and attachments lodged on 7 April 2022, and
(d)    list of payments and wage schedules filed in accordance with the direction made on 21 June 2022.

Oral evidence

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement dated 21 April 2021.
The applicant commenced employment with the respondent as a full-time store-person/picker on 27 February 2017. The applicant’s duties included heavy repetitive tasks such as lifting and stacking boxes weighing between 13 kg to 16.6 kg and repetitive prolonged walking on hard concrete surfaces. The applicant estimated that over the course of a work day, he bent over, lifted and twisted a thousand times or more. The applicant’s duties also included prolonged standing and walking while working as a picker. The applicant was required to work quickly to achieve a performance target.
In 2017, the applicant reported to the respondent that his neck and back were sore and stiff due to heavy lifting and driving a forklift.
On 28 December 2017, the applicant notified the respondent of bilateral foot injury, which was diagnosed as plantar facitis. After conservative treatment of bilateral foot pain, the applicant was certified fit for pre-injury duties on 29 March 2018.
In January 2019, the applicant reported neck injury at work. An MRI scan showed bulges in the C5/C6 and C6/C7 discs and a pinched nerve. The applicant continued to work as required with pain relief medication.
On 13 August 2020, the applicant reported a recurrence of his bilateral foot pain symptoms due to prolonged standing and walking at work. It was diagnosed as “more heel bursitis and fat necrosis which also leads to plantar facitis”.
The insurer briefly accepted the applicant’s bilateral foot pain as a new injury but subsequently declined the applicant’s claim for medical expenses in relation to the bilateral foot pain recurrence on the basis that the applicant’s entitlement to medical expenses had expired.
The applicant received some bilateral foot electro therapy treatment from podiatrist, Dr Torin O’Grady.
On 12 October 2020, the applicant lodged a new claim for bilateral foot injury with a date of injury being 28 September 2020. The insurer reopened the applicant’s original claim in relation to bilateral foot pain as recurrence of the original injury.
As the insurer declined his claim, the applicant had to continue working after reporting the injury on 13 August 2020. However, the applicant has lost wages because he had to use at least 20 days of personal sick leave and a minimum of 120 hours of his annual leave. Further, most of the applicant’s time off work due to injury and associated depression has been unpaid. The applicant’s hourly rate is $33.32.
The applicant continues to have foot, neck and back pain and severe depression and anxiety. He cannot stand for more than 10 to 15 minutes before pain causes him to need to rest. Further, the applicant’s neck symptoms limit his neck movement. The applicant now has physical restrictions involving sitting, standing, forward reaching, stooping and lifting more than 5 kg. He requires medication to manage his pain. Due to his symptoms, the applicant cannot undertake cooking or household chores, cannot drive his car for more than 10 minutes, cannot undertake grocery shopping and no longer has a social life.
The applicant changed his treating general practitioner from Dr Green to Dr Ali Moghaddam.
A statement of the applicant dated 8 October 2020 (included in the insurer’s feet injury file), stated that on 13 August 2020, the applicant’s bilateral foot pain was aggravated to an “unbearable level” by having to stand for approximately two hours during an evacuation. The applicant stated that he had pain for approximately the six months prior to that date, going back to 28 September 2019, however he had been tolerating the pain.
The applicant was paid some weekly benefits compensation in respect of the injuries before the insurer declined liability.

Independent medical evidence

Dr Daniel Posel, orthopaedic surgeon

Dr Posel provided an independent medical opinion at the request of the insurer.
In a report dated 26 November 2020, Dr Posel stated a diagnosis of bilateral foot pain, which was likely a recurrence of plantar fasciitis, subject to a formal diagnosis upon MRI scans of both feet. Dr Posel attributed the bilateral foot pain to an initial workplace incident on
28 October 2017, with flare-ups that occurred on 20 September 2019 and by aggravation following an evacuation at work on 13 August 2020. Dr Posel stated that it related to the applicant’s conditions of employment with the respondent. Dr Posel did not believe there is a new injury. Dr Posel was not convinced that the problem is one of heel pad fat necrosis.
Dr Posel stated that there was no underlying disease. Dr Posel stated that the aggravation will cease with new custom orthotics which Dr Posel recommended. Dr Posel stated that the applicant was fit to continue in his pre-injury duties, noting that the applicant was then performing his usual duties and icing his feet for five minutes every hour, which would likely no longer be required if he had custom orthotics.
Dr Posel referred to the applicant’s neck injury. Dr Posel stated that the applicant “pulled a muscle” in his neck after he attempted to retrieve a 15 kg box which slipped from his hands, and he noted that the applicant reported not having much time off work but being on restricted duties for almost a year. Dr Posel stated that the applicant had right-sided neck/trapezius pain on a scale of 9/10 until he underwent a facet joint denervation in his neck 12 months ago, and subsequently he had intermittent pain on a scale of 2/10. Dr Posel noted that the applicant reported that he was longer able to drive a forklift as it required too much rotation of his neck.

Dr Medhat Guirgis, consultant orthopaedic surgeon

Dr Guirgis provided an independent medical opinion at the request of the applicant.
In a report dated 27 March 2021, Dr Guirgis noted that the applicant continued to experience ongoing bilateral foot pain, triggered by prolonged standing and walking, despite icing his feet and using gel support orthotics which required the applicant to purchase larger size boots. Dr Guirgis noted that prolonged standing or walking also evoked cramps in the applicant’s calves. Dr Guirgis noted that X-ray and ultrasound findings “did raise the possibility of left sided plantar fasciopathy”. Dr Guirgis diagnosed chronic foot strain presenting with symptoms and signs of a combination of “Heel Fat Pad Syndrome” and of “Plantar Fasciopathy” as a result of the nature and conditions of his employment.
In a report dated 17 August 2021, Dr Guirgis stated that the applicant continued to have bilateral foot pain triggered by prolonged standing and walking despite regular icing of his feet and use of orthotics. Dr Guirgis also stated that the applicant also had continuing neck pain and stiffness with radiation to the right and left shoulders and the top of the right and left shoulder blades. Additionally, the applicant continued to suffer from right C6/7 cervicobrachial symptoms in addition to some lower back symptoms. Dr Guirgis noted that the applicant had been doing “light” duties for almost a year without any feeling of improvement and, if anything, the applicant’s neck and back condition were slowly worsening. Dr Guirgis diagnosed ongoing symptoms, signs and disabilities in the applicant’s neck related to the nature and conditions of employment. Dr Guirgis “tentatively” assessed the applicant as having total 11% whole person impairment, which included 5% whole person impairment in respect of the cervical spine.

Treating medical evidence

Dr Stephen Green, general practitioner

On 29 January 2019, Dr Green noted that the applicant had ongoing right-sided neck pain which he developed on 20 November 2018, in the course of his work, when the applicant was picking a box of milk and the box flap broke and he had to move suddenly to catch the box.
On 24 July 2020, Dr Green reported that the applicant presented on 3 July 2020 “after aggravating his past neck injury after an episode of coughing”. Dr Green diagnosed a soft tissue injury to the applicant’s neck and right trapezius, aggravating a previous injury, and that the applicant’s employment and work duties were a substantial contributing factor in relation to further treatment requirements. He anticipated a full recovery in a matter of weeks.
On 2 November 2020, Dr Green reported that the applicant presented on 13 August 2020 with bilateral foot pain and Dr Green suspected plantar fasciitis. Dr Green stated that the applicant did have a similar condition back in 2017. Dr Green noted that the applicant had significant chronic bilateral foot pain and also had significant anxiety and depression which was related to the persistent pain in his feet.
A certificate of capacity (certificate) signed by Dr Green on 24 July 2020 noted that the applicant had a right trapezius strain and injury with a reported date of injury of
20 November 2018, however the applicant was fit for pre-injury duties.
Various certificates signed by Dr Green between October 2020 and January 2021 noted that the applicant had bilateral foot pain with a reported date of injury of 13 August 2020, and had various periods of either no capacity or capacity for some duties.

Dr Ali Shirzad Moghaddam, general practitioner

On 18 February 2021, Dr Moghaddam noted an ultrasound guided injection of the applicant’s feet with tendinopathy in the feet, worse on the left side.
On 18 February 2021, Dr Moghaddam prepared a referral to Dr John Limbers, which noted that the applicant continued to experience ongoing and chronic bilateral foot pain which impacted his life. Dr Moghaddam noted that the last ultrasound showed soft tissue necrosis and tendinopathy.
On 7 April 2021, Dr Moghaddam prepared a referral to Dr Prakash Damodaran, which noted that the applicant previously had a work related neck injury and saw a pain specialist at the time through a different general practitioner, and more recently had a relapse and worsening of his pain and his new MRI showed some changes.
Various certificates signed by Dr Moghaddam from February 2021 noted that the applicant had bilateral foot pain – fat necrosis both heels, adventitial bursitis right heel, anxiety and depression associated with chronic pain - with a reported date of injury of 13 August 2020, and had various periods of either no capacity or capacity for some duties.
A certificate signed by Dr Moghaddam dated 7 April 2021 noted that the applicant had neck pain with radiculopathy and that the applicant had a flare up of a previous neck injury at work, which had been dealt with by another doctor, and that a new MRI shows new bulging disc and tear compared to the previous scan. Dr Moghaddam certified that the applicant had no capacity for work for a period of three weeks to 28 April 2021.

Investigation reports

A report dated 15 January 2018 stated that an ultrasound of both feet found that the left plantar fascia was mildly thickened in comparison to the right, which suggested that there may be plantar fasciitis on the left side. Appearances did not indicate plantar fasciitis on the right side.
A report dated 24 January 2019 stated that an MRI of the cervical spine showed: at C4/5, straightening of cervical lordosis and mild foraminal narrowing; at C5/6, mild disc bulge with bilateral uncovertebral hypertrophy causing mild to moderate bilateral foraminal narrowing at with minimal impingement of exiting C6 nerve root and mild central spinal stenosis with no cord compression, and at C6/7, mild disc bulge with bilateral uncovertebral hypertrophy causing mild foraminal narrowing with no nerve compression.

A report dated 29 September 2020 stated that an X-ray of the bilateral heels found no plantar calcaneal spur, the calcaneum appeared normal and there was no lytic or sclerotic bony lesion. An ultrasound of the left heel found no evidence of left plantar fasciitis and that the area of pain corresponded to a hypoechoic area within the heel fat pad which may represent an area of fat necrosis.
A report dated 30 September 2020 stated that an ultrasound of the right foot found no plantar fasciitis however there was mild fat necrosis of the heel fat pad with adventitial bursitis corresponds to the site of pain.
A report dated 18 January 2021 stated that an X-ray and ultrasound of the feet found no bone or joint abnormality. It stated that there was no significant plantar fascia thickening, however the left side was thicker than the right at 4.9mm and slightly heterogeneous, which raised the possibility of left sided plantar fasciopathy.
A report of an MRI of the cervical spine dated 6 April 2021 noted that appearances at C5-6 is similar to the previous MRI scan from January 2019 however there has been appreciable deterioration at C6-7 with left paracentral disc protrusion and annual tear at that level.

John Ruzicka, physiotherapist

Mr Ruzicka’s report dated 29 December 2017 noted the applicant had bilateral foot pain, bruised heels and inflamed fat pads and recommended work restrictions on standing and lifting.

Alanna Smith, physiotherapist

In a report dated 10 July 2019, but which appears to have been written on 10 July 2020, Ms Smith stated that the applicant had recently attended regarding right-sided neck pain “exacerbated by coughing fits”. The applicant had no problems completing all his work duties but was concerned about preventing exacerbation of his previous neck injury. Ms Smith noted that the applicant had a full active range of motion in the cervical spine and full active right shoulder flexion range, mild bilateral scapular winging and mild forward head posture. Ms Smith noted acutely increased muscular tension in the right upper trapezius and levator scapulae muscles due to fatigue from frequent coughing fits. Ms Smith did not believe that the applicant’s symptoms were serious neurological or neck injury related to his previous neck surgery or vertebral involvement.

Peak conditioning, workplace rehabilitation service provider

A report dated 27 March 2020 in relation to the right trapezius strain and neck injury dated 20 November 2018 stated that, upon conclusion of the treatment plan, the applicant had successfully demonstrated the functional capacity to safely perform his pre-injury role as a store person with the respondent. It stated that the applicant demonstrated that he could transition manual handling skills taught within the treatment plan in a variety of different scenarios and adapt those skills to his home and work environment. Further, it stated that the applicant demonstrated that he could manage flare-ups and he understood the pacing and pain management concepts taught and could effectively self-manage his condition independently in the future.

Torin O’Grady, podiatrist

On 21 October 2020, Ms O’Grady noted that the applicant had presented that day with pain in his forefoot of both feet, with the left being worse than the right, and sharp pain in his left heel. In a letter dated 2 February 2021, Ms Brittany Sultana, podiatry practice manager, reported on behalf of the podiatrist, that the applicant’s podiatry treatment was only at the beginning. She reported that, due to the applicant being in pain with very little progress, the applicant was nowhere near the end of his treatment plan.

Insurer file – feet injury (2018-2020)

An injury claim form dated 26 February 2018 reported bilateral foot pain and plantar faciitis, mainly in the left foot, with a date of injury of 28 October 2017. A recurrence of injury form dated 14 August 2020 reported severe bilateral foot pain with an original date of injury of
28 October 2017 and a date of recurrence of 13 August 2020. The form noted that the applicant had ongoing bilateral foot pain since 28 September 2019 but the pain had recently become intolerable. A report of Dr Green dated 19 October 2020 noted chronic bilateral foot pain, adventitial bursitis of the right heel and fat rectuses of the right and left heel pads.
Certificates dated between October 2020 and January 2021 noted a diagnosis of bilateral foot pain, fat necrosis in both heels and adventitial bursitis right heel.

Insurer file – neck injury (2019-2020)

On 29 January 2019, Dr Green reported that the applicant’s pain had not responded to physiotherapy and the applicant had intermittent right upper limb paraesthesia. It also noted that the applicant had foraminal narrowing with possible C6 nerve root impingement.
On 1 February 2019, Dr Jonathon Parkinson, neurosurgeon, reported that the applicant reported predominantly right-sided neck pain from lifting a box at work. The report noted that an MRI of the cervical spine showed minor disc bulge at C5/6 without nerve root compression. On 28 February 2019, Dr Parkinson stated that a bone scan showed some facet arthropathy. Dr Parkinson recommended right-sided facet injections of C5/6 and C6/7. On 2 April 2019, Dr Parkinson stated that the applicant had not received relief from cervical facet cortisone injections and he recommended referral to a pain management specialist.
On 24 May 2019, Dr Lewis Holford interventional pain medicine specialist, reported that the applicant had significant right lower cervical paraspinal tenderness and lesser tenderness on the left. It noted that an MRI of the cervical spine showed minor disc bulges at C5/6 and C6/7 with no obvious nerve root impingement and that bone scans showed mild facet joint uptake bilaterally at C5/6 and C6/7. Dr Holford recommended diagnostic blocks to the right C5/6 and C6/7 facet joints to confirm if they were the source of the applicant’s pain and possible radiofrequency facet joint denervation. On 20 June 2019, Dr Holdford reported that diagnostic medial branch blocks to the right C5/6 and C6/7 facet joints showed a positive result with a significant reduction in the applicant’s pain for the duration of the local anaesthetic. On 26 September 2019, Dr Holdford reported that the applicant underwent radiofrequency denervation of the right C5/6 and C6/7 facet joints and that the applicant’s pain had reduced considerably and his range of motion and functional tolerances had improved. Dr Holford noted that the applicant remained on light duties at work.
On 1 October 2019, a physiotherapist reported that the applicant reported onset of intense right sided neck pain that morning whilst dressing and had neck pain and limited neck range and movement due to acute wry neck. The physiotherapist noted that the applicant should make a full recovery within 72 hours following treatment.
On 19 March 2019, Dr Gannon McWhirter reported that CT guided glucocorticoid injection at the right side C5/6 and C6/7 facet joints was performed.
On 3 October 2019, Courtney Cox, occupational therapist noted that the applicant remained incapacitated due to recent aggravation of his neck pain, but was working towards a goal of returning to pre-injury duties.
On 8 October 2019, Dr Green noted the applicant’s work duties and associated functional demands. Dr Green stated that the applicant’s correct diagnosis was cervical foraminal stenosis, cervical facet joint degradation bilaterally at C5/6 and C6/7 and that the applicant had undergone right-sided radiofrequency rhizotomy at C5/6 and C6/7 facet joints. Dr Green stated that he believed that the applicant was then capable of a return to restricted duties (which included an 8 kg lifting limit, one hour limit on repetitive lifting and picking per shift and no restriction on hours) and that a return to pre-injury duties was achievable within two months.
On 28 February 2020, Dr Holford reported that the applicant had suffered an exacerbation of his neck pain and had new onset low back pain after recently returning to full duties, for 38 hours per week. Dr Holdford noted that there had been some recurrence of the applicant’s cervical facet pain and that the expected duration of the radiofrequency denervation is between six months and two years.
On 9 March 2020, a recovery plan stated that the applicant’s pre-injury duties included order selection which involved frequently: using a lightweight headset; driving a standing pallet transporter; collecting empty pallets; driving along aisles picking up and stacking items from 10cm above floor level to a maximum height of 1.8 m, within a 10 to 20 second picking style. The applicant’s pre-injury associated functional demands included: occasional bilateral lifting up to 17 kg frequent lifting up to 10 kg constant standing; constant walking; frequent lifting and carrying of items; frequent pushing and pulling; frequent bending; occasional twisting; frequent squatting/crouching; frequent reaching, and frequent handling and grip. It noted that the applicant’s post-injury suitable duties within restrictions included frequent order selection (within restrictions); occasional administration based activities; occasional general cleaning duties, and frequent pushing stock.
On 10 July 2020 the physiotherapist reported (the report is incorrectly dated 10 July 2019) that the applicant had right-sided neck pain “exacerbated by coughing fits” and that he was “concerned about preventing exacerbation of previous neck injury” and stated that the symptoms are due to “increased muscular tension, and not serious neurological/neck injury related to his previous neck surgery or vertebral involvement...”.
On 24 July 2020, Dr Green reported that on 3 July 2020 the applicant presented “after aggravating his past neck injury after an episode of coughing”. Dr Green noted a diagnosis of soft tissue injury to the applicant’s neck and right trapezius, aggravating a previous injury, with a full recovery expected within weeks. Dr Green stated that the applicant’s employment and work duties were a substantial contributing factor in relation to the further treatment requirements.
Various certificates dated in January 2019 and January 2020 noted the applicant’s incapacity due to right trapezius strain and neck injury dated 20 January 2018.

Chatswood Medical Centre file

The Chatswood Medical Centre file comprised a medical history of the applicant which noted various consultations, symptoms, medications, investigations, treatments, certificates and return to work plans.

Wallarah Bay Medical Centre file

The Wallarah Bay Medical Centre file comprised numerous clinical notes of Dr Green and
Dr Moghaddam in relation to the applicant’s bilateral foot injuries, neck and right shoulder injuries which noted various consultations, symptoms, medications, investigations and treatments.
It also included certificates which certified that the applicant has no work capacity between March 2021 and June 2022 and variously noted neck pain with radiculopathy or feet pain or both.

Other medical certificates

A certificate dated 29 March 2018 noted the applicant’s incapacity due to a left heel injury with a date of injury of 28 October 2017. It stated that the applicant was fit for pre-injury duties on 29 March 2018.
A certificate dated 2 September 2020 noted bilateral plantar fasciitis with a date of injury of 12 August 2020. It stated that the applicant is fit for pre-injury work on 2 September 2020.
A certificate dated 10 March 2021 noted foot pain. It stated that the applicant has capacity for some type of work from 19 March 2021 to 9 April 2021 for five hours per day, five days per week, subject to limitation of standing and bending/twisting/squatting “as tolerated”.

SUBMISSIONS

Counsel made written submissions in accordance with the directions of the Commission.

Applicant’s submissions

The applicant’s solicitor, Ms Grotte, submitted that there is no dispute that the applicant suffered an injury to his bilateral feet, neck and right shoulder and that his employment is the main contributing factor.
Ms Grotte submitted that the evidence relied upon by the respondent predates the insurer’s denial of continuing liability and has, in effect, been superseded by the evidence in the clinical notes in particular, which demonstrate the continuing nature of the injuries and the concomitant disability, and, as a result of the combination of the injuries, the inability of the applicant to work on the basis that he has no current capacity.
Ms Grotte submitted that any suggestion that the coughing incident broke the chain of causation ought not to be given any credence, and ought not be accepted. Ms Grotte submitted that there is no medical expert evidence to support the contention, if there is one, that the coughing incident caused the appreciable deterioration at the C6/7 level evident on the MRI scan taken on 6 April 2021 or was of such a degree as to break the chain of causation. Ms Grotte submitted that the applicant’s case is fortified by the continuing flareups of pain in his neck prior to the coughing incident in July 2020.
Ms Grotte submitted that Dr Posel does not deal with the neck in any meaningful way, and he has not been asked to comment on capacity after liability was declined in April 2021. She submitted that Dr Posel’s report is of limited value as it deals with the situation sometime before compensation ceased, before even the applicant went off work. She submitted that the only evidence as to current capacity beyond the date on which the applicant's compensation payments ceased is from the applicant and there is no countervailing evidence.
Ms Grotte submitted that the evidence as a whole supports a finding that the applicant continues to suffer from the effects of the injuries to his feet on 28 December 2017 and to his neck and right shoulder on 20 November 2018, and the applicant has no current capacity and has had no current capacity since 7 April 2021.
Ms Grotte submitted that the following orders ought to be made:
(a) the respondent pay the applicant weekly compensation at the rate of $811.20 per week pursuant to s 37 of the 1987 Act from 7 April 2021 to date and continuing, and
(b) the respondent pay the applicant's medical and treatment expenses in respect of injuries to the neck/right shoulder and bilateral foot injuries pursuant to s 60 of the 1987 Act.

Respondent’s submissions

Ms Warren submitted that the Commission ought not to be satisfied that the applicant suffers from any incapacity to work as a result of the accepted work injuries to his bilateral feet and/or cervical spine.
Ms Warren submitted that the evidence of the treating practitioners indicated that the applicant did have capacity at various times since the accepted injuries.
Ms Warren submitted that the evidence of treating practitioners demonstrated that the applicant’s later neck pain and incapacity was a result of injury by a ‘coughing fit’ in July 2020 and was not related to the accepted work injury.
Ms Warren submitted that the opinion of Dr Posel should be preferred to the opinion of
Dr Guirgis. Ms Warren submitted that Dr Guirgis did not take a complete and correct history, did not adequately address capacity in relation to the bilateral foot condition nor the cervical spine condition and nor did he grapple with the issue of causation and the impact of the coughing incident.
Ms Warren submitted that the further certificates of capacity contained in the annexures to the application to admit late documents, are not signed by the doctor or the applicant and are not fully completed and, further, there is no letter from the general practitioner to explain this.
Ms Warren referred to numerous entries in the clinical records which for some unexplained reason have the “recorded on” as a different date from the “visit date” and noted that there is no letter from the general practitioner and/or medical centre explaining why the dates of entries are different from the consultation dates. Ms Warren submitted that this ought to raise concern in relation to clinical records when there is no explanation provided from the doctor or medical centre.
Ms Warren submitted that the evidence before the Commission does not clearly draw out the injuries that the applicant has and their specific impact on his capacity to work, including in relation to the interplay of any back injury and psychological injury which are not accepted injuries and not part of the applicant’s claim.
Ms Warren submitted that the Commission ought not to be satisfied that the applicant has no capacity for work as a result of his accepted work-related injuries to his bilateral feet and/or cervical spine and, accordingly, the Commission ought to make an award in favour of the respondent in regards to the claim for weekly compensation under s 37 of the 1987 Act.

Applicant’s submissions in reply

Ms Grotte submitted that the evidence demonstrates that the “coughing incident” is not a new injury sufficient to break the chain of causation, resulting in incapacity.
Ms Grotte relied on the decision of Malcolm CJ in State Government Insurance Commission v Oakley[1] (Oakley) and Simpson AJA in Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [26].
[1] (1990) 10 MVR 570; [1990] Aust Torts Reports 81-003.
In relation to the clinical notes, Ms Grotte submitted that it appears that on 18 February 2021, the records of Dr Green from the Warnerval GP Super Clinic were imported into the Wallarah Bay Medical Centre where Dr Moghaddam practises, and that the applicant’s earlier visits with Dr Green that predated 18 February 2021 were then recorded as entries on
18 February 2021. Ms Grotte submitted that the clinical notes are consistent with the certificates and referrals made by Dr Green and Dr Moghaddam.
Ms Grotte submitted that, as the applicant’s treating general practitioner, Dr Green is able to diagnose that the applicant is suffering from anxiety and depression as a secondary psychological condition resulting from the chronic pain of his physical injuries.
Ms Grotte submitted that the there is no cause to doubt the veracity of the certificates which deal with two injuries that have combined to make the applicant unable to work and there has been a deterioration over time that has resulted in an inability to work.
Ms Grotte submitted that Dr Guirgis reports were based on a sufficient history and that although Dr Guirgis’ reports deal in the main with the bilateral fasciitis, he also dealt in passing with the applicant’s continuing neck and right shoulder symptomatology.
Ms Grotte submitted that the Commission would be satisfied, on the balance of probabilities, that the applicant's continuing symptomatology, which has persisted and worsened over time despite his best efforts, has resulted in no current capacity.

FINDINGS AND REASONS

Assessment of the applicant’s capacity for work and entitlement to weekly benefits compensation requires consideration of whether he has a “current work capacity” or has “no current capacity” as defined by s 32A of the 1987 Act:
“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment.
no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment either in the worker’s pre-injury employment or in suitable employment”
“Suitable employment” is relevantly defined in s 32A of the 1987 Act:
“suitable employment, in relation to a worker, means employment in work for which the worker is currently suited:
(a)having regard to:
(i)the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and
(ii)the worker’s age, education, skills and work experience, and
(iii)any plan or document prepared as part of the return to work planning process, including injury management plan under Chapter 3 of the 1998 Act, and
(iv)any occupational rehabilitation services that are being, or have been, provided to or for the worker, and
(v)such other matters as the Workers Compensation Guidelines may specify, and
(b)regardless of:
(i)whether the work or the employment is available, and
(ii)whether the work or the employment is of a type or nature that is generally available in the employment market, and
(iii)the nature of the worker’s pre-injury employment, and
(iv)the worker’s place or residence.”

Section 36 of the 1987 Act provides:
“36 Weekly payments in first entitlement period (first 13 weeks)
(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the first entitlement period is to be at the rate of:
(a)(AWE x 95%) – D, or
(b)MAX - D,
whichever is the lesser.
(2) The weekly payment of compensation to which an injured worker who has current work capacity is entitled during the first entitlement period is to be at the rate of:
(a)(AWE x 95%) – (E + D), or
(b)MAX – (E + D),
whichever is the lesser.”
Section 37 of the 1987 Act provides:
“37 Weekly payments in second entitlement period (weeks 14-130)
(1)     The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of:
(a)(AWE x 95%) – D, or
(b)MAX - D,
whichever is the lesser.
(2)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for not less than 15 hours per week is entitled during the second entitlement period is to be at the rate of:
(a)(AWE x 95%) – (E + D), or
(b)MAX - (E + D),
whichever is the lesser.
(3)     The weekly payment of compensation to which an injured worker who has current work capacity and has returned to work for less than 15 hours per week (or who has not returned to work) is entitled during the second entitlement period is to be at the rate of:
(a)(AWE x 80%) – (E + D), or
(b)MAX - (E + D),
whichever is the lesser.”
The assessment of whether there is a current work capacity or no current work capacity must be made before proceeding to do a determination under s 36 and s 37 of the 1987 Act (Deputy President Roche in Wollongong Nursing Home Pty Ltd v Dewar[2] (Dewar), at [45]-[49], [68]). In Dewar, Deputy President Roche stated at [47]-[49]:
“47.   The new provisions require a determination of whether a worker has a ‘current work capacity’ or ‘no current work capacity’. A ‘current work capacity’ is an ‘inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment’. The suitable employment referred to is not restricted to light duties performed for the respondent employer, which may or may not be suitable employment. It is suitable employment as defined in s 32A. ‘No current work capacity’ exists when the worker is not able to return to work either in the worker’s pre-injury employment or in suitable employment.
48.    Having accepted that Drs Dewar has an ‘inability’ arising from her work injury, the Arbitrator’s task was to determine, having regard to the matters listed in the definition of suitable employment, if she was ‘able to return to work in suitable employment’. The legislation requires an assessment of whether the worker is able to return to work in either his or her pre-injury employment or in suitable employment. Suitable employment is defined as employment in work for which the worker is currently suited, having regard to certain specified matters, regardless of whether the work or employment is ‘available’ or is of a type or nature that is ‘generally available in the employment market’.
49.    The determination of whether a worker has a current work capacity or no current work capacity will depend on all the evidence...”
[2] [2014] NSWWCCPD 55. The reasoning in Dewar was applied in Broadspectrum Australia Pty Ltd v Skiadas [2016] NSWWCCPD 34.
At [66]-[68] Deputy President Roche said:
“66. If there is a current work capacity, that is relevant to calculating ‘E’ (the amount to be taken into account as the worker’s earnings after the injury, where the worker is not employed), which is then used in the equations in ss 36(2) and 37(2) and (3). If there is no current work, one looks to s 36(1) or s 37(1), depending on whether the claim is in the first or second entitlement period.
67. Thus, the words ‘the amount the worker is able to earn in suitable employment’ in s 35 are not relevant to the preliminary question of whether a worker has a current work capacity. They are, however, relevant to determining the amount to be taken into account as the worker’s earnings after the injury where he or she is not employed. In assessing that amount, the reference to ‘the amount the worker is able to earn in suitable employment’ is a reference to the amount the worker is able to earn in suitable employment, as that term is defined in s 32A.
68. ... ss 36 and 37 provide the methodology for calculating the amount of weekly compensation payable. However, that does not mean that the phrases ‘current work capacity’ and ‘no current work capacity’ have not purpose other than to determine which of the subsections in ss 36 and 37 applies. Before getting to ss 36 and 37, there must be a determination of whether the worker has a ‘current work capacity’ or ‘no current work capacity’. That is determined by reference to the definitions in s 32A.”
The dispute before the Commission relates to two separate injuries being:
(a) injury on 28 December 2017 of bilateral foot pain, including recurrent injury on 8 October 2020, arising from the nature of the applicant’s employment which involved prolonged periods of walking on hard floors, and
(b) injury on 20 November 2018 to the neck/cervical spine, incurred when the applicant tried to catch a falling box of milk at work.
The respondent acknowledges that liability for the injuries has been accepted and this dispute is not in relation to injury (being ss 4 and 9A of the 1987 Act). The dispute before the Commission is in relation to whether the applicant’s alleged incapacity to work arises as a result of his work injuries of 28 December 2017 to his bilateral feet and 20 November 2018 to his cervical spine.
The physical requirements of the applicant’s work are not disputed. The evidence of the Peak Conditioning report is that the applicant was required to do work that including repetitive lifting of items, pushing, pulling, reaching and bending frequently, in respect of items up to 17 kg in weight. The applicant was also required to stand and walk for prolonged periods on concrete floors.
Turning to the evidence in relation to the alleged injuries, Ms Warren submitted that I should treat the clinical notes of the treating practitioners with caution because on some occasions the clinical notes record an entry date of 18 February 2021 but record a different date on which the consultation occurred. The different dates are not explained in the evidence however, in her submissions in reply, Ms Grotte suggested that the likely explanation was that on 18 February 2021 the records of Dr Green were imported into the records of the Wallarah Bay Medical Centre where Dr Moghaddam practises. As Ms Grotte noted, the respondent does not specifically challenge the veracity of the clinical notes and the purpose or other basis of the respondent’s caution in relation to the clinical notes is not entirely clear. Having regard to the evidence as a whole, I consider that the most likely explanation for the entry date of 18 February 2021 in respect of those clinical notes is that they were likely imported into the records of the Wallarah Bay Medical Centre on that day. Ms Warren also submitted that some of the certificates are unsigned by the treating doctor and the applicant and are partly incomplete. I note that many of the consultations occurred remotely in accordance with COVID-19 protocols. I note that the clinical notes are largely consistent with the referrals from Dr Green and Dr Moghaddam and the certificates. Having regard to the evidence as a whole, I do not doubt the veracity of the clinical notes and the certificates.
In decisions such as Davis v Council of the City of Wagga Wagga,[3] Nominal Defendant v Clancy,[4] King v Collins[5] and Mastronardi v State of New South Wales,[6] the Court of Appeal cautioned against placing too much weight on the clinical notes of treating doctors, given their primary concern was treatment. In the Court’s view, the notes rarely, if ever, represent a complete record of the exchange between a busy doctor and the patient. This was also confirmed in Winter v NSW Police Force,[7] where Deputy President Roche stated:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34] – [36]).”
[3] [2004] NSWCA 34;4 DDCR358.
[4] [2007] NSWCA 349.
[5] [2007] NSWCA 122.
[6] [2009] NSWCA 270.
[7] [2010] NSWWCCPD 121.
There is some reference in the medical evidence to the applicant having a lower back injury. However there is no accepted injury in that regard. There is also some reference in the medical evidence to the applicant having a secondary psychological condition from the chronic persisting pain in his feet and his neck and right shoulder. I note that the ARD does not include those injuries and they are not the basis of the applicant’s claim.

Bilateral foot pain injury on 28 December 2017 including recurrent injury on 8 October 2020

The clinical notes from Wallarah Bay Medical Centre record numerous entries in relation to bilateral foot pain commencing from an entry on 29 December 2017, in respect of workers compensation, when the applicant was diagnosed with bilateral plantar fasciitis, provided with a certificate and referred for an ultrasound scan of his feet.
On 29 December 2017, physiotherapist Mr Ruzicka noted the applicant had bilateral foot pain, bruised heels and inflamed fatpads and recommended work restrictions on standing and lifting.
On 15 January 2018, an ultrasound of both feet found that the left plantar fascia was mildly thickened in comparison to the right, which suggested that there may be plantar fasciitis on the left side but not the right side. By 1 February 2018, it was recorded that there was a slight improvement after the applicant had been on seated duties and given a heel wedge. After the applicant returned to normal duties, by 27 February 2018 it was recorded that he was not coping with the excessive walking associated with pushing stock. In March 2018, it was recorded that, with new orthotics, the applicant’s bilateral foot pain improved and he coped with a trial of his pre-injury duties. By 29 March 2018, it was recorded that a final certificate would be issued.
The applicant’s evidence and the Recurrence of Injury Form dated 14 August 2020, is that the applicant had bilateral foot pain caused by walking and standing at work during 2020, which was aggravated to an “unbearable level” on 13 August 2020 by having to stand for approximately two hours during an evacuation.
The clinical notes from Wallarah Bay Medical Centre record that on 13 August 2020, the applicant had bilateral plantar fasciitis, which he had in 2017, but experienced only intermittent pain since then. On examination, Dr Green found a tender left heel and medial arch and a tender right arch. On 19 August 2020, it was recorded that physiotherapy and orthotics were recommended. By 3 September 2020, a diagnosis of plantar fasciitis was recorded, with a need for treatment such as physiotherapy and orthotics. From
3 September 2020, there are multiple entries of chronic feet pain and ongoing heel pain as well as foot pain. On 21 September 2020, Dr Green noted ongoing heel pain which he suspected was due to "walking on concrete".
On 29 September 2020, an X-ray of the bilateral heels found that the calcaneum appeared normal and there was no evidence of left plantar fasciitis but the area of pain corresponded to a hypoechoic area within the heel fat pad which may represent an area of fat necrosis. On 30 September 2020, an ultrasound of the right foot found no plantar fasciitis however there was mild fat necrosis of the heel fat pad with adventitial bursitis corresponding to the site of pain.
On 19 October 2020, Dr Green reported chronic bilateral foot pain, adventitial bursitis of the right heel and fat rectuses of the right and left heel pads.
On 21 October 2020, the applicant’s podiatrist, Ms O’Grady, noted that the applicant had pain in his forefoot of both feet, with the left being worse than the right, and sharp pain in his left heel, with a history of a diagnosis of plantar fasciitis, bursitis and fat necrosis. She recommended customised insoles.
On 2 November 2020, Dr Green reported to the insurer that the applicant had presented to the practice on 13 August 2020 with bilateral foot pain which he suspected was bilateral fasciitis. Dr Green noted anxiety, depression and chronic pain at a significant level which was related to the persistent pain in the applicant’s feet. On 5 November 2020, the clinical note entry confirmed that the applicant's foot pain happened at work.
The clinical notes from Wallarah Bay Medial Centre record that the applicant experienced a flare up of foot pain on 29 December 2020, and again on 8 January 2021 and again on 14 January 2021, 15 January 2021 and 20 January 2021. Those entries recorded that the applicant had to have time off work because of feet pain.
On 18 January 2021, an X-ray and ultrasound of the feet found significant plantar fascia thickening, with the left side thicker than the right and slightly heterogeneous, indicating possible left sided plantar fasciopathy.
On 20 January 2021, Dr Green recorded that the applicant's podiatrist was trying shock wave treatment. By 25 January 2021, the applicant was receiving shock wave treatment weekly. On 1 February 2021, Dr Moghaddam recorded that the applicant had ongoing foot pain and the orthotics had not helped. On 8 February 2021, Dr Moghaddam recorded there was a relapse of foot pain and that the applicant was unable to walk. On 18 February 2021, Dr Green referred the applicant to Dr Limbers, reporting that the applicant had ongoing and chronic pain in his feet related to a work injury.
On 2 February 2021, the applicant’s podiatrist confirmed that the applicant’s treatment was still at the beginning as the applicant was still in pain with very little progress.
The clinical notes from Wallarah Bay Medial Centre record that on 10 March 2021 the applicant was treated with injections into his feet. However, on 28 April 2021, the applicant continued with the same feet pain. By 18 May 2021, the applicant was experiencing "massive pain" and had been unable to work. This situation continued in June and July 2021, and Dr Moghaddam recorded that the applicant found it "hard to move around" and he "struggles with even walking". On 7 September 2021, it is recorded that the applicant experienced “disabling” pain. By 11 March 2022, Dr Moghaddam recorded that the applicant was, by then, "walking with the help of a stick" but, even with that, could not walk very far.
Certificates dated between October 2020 and January 2021 noted a diagnosis of bilateral foot pain, fat necrosis in both heels and adventitial bursitis right heel.
Various certificates stated that the applicant has no work capacity between March 2021 and June 2022 and variously noted neck pain with radiculopathy or feet pain or both.

Neck and right shoulder injuries on 20 November 2018

The clinical notes from Wallarah Bay Medical Centre record that on 20 November 2018 the applicant had a sudden onset of right shoulder and right-sided neck pain when he was handling a box of milk and the cardboard flap broke. The applicant was diagnosed as having a right trapezius strain and that injury was accepted by the insurer.
The clinical notes from Wallarah Bay Medical Centre record numerous reports of neck pain, right shoulder pain and right trapezius pain on 18 December 2018, 11 January 2019, 22 January 2019, and 4 February 2019.
On 24 January 2019, an MRI of the applicant’s cervical spine showed at C4/5, straightening of cervical lordosis and mild foraminal narrowing, and showed at C5/6, mild disc bulge with bilateral uncovertebral hypertrophy causing mild to moderate bilateral foraminal narrowing with no nerve compression and, at C6/7, mild disc bulge with bilateral uncovertebral hypertrophy causing mild foraminal narrowing with no nerve compression.
On 29 January 2019, Dr Green wrote a referral to neurosurgeon Dr Parkinson noting that the applicant had ongoing right-sided neck pain which had not responded to physiotherapy and had intermittent right-sided paraesthesia, foraminal narrowing with possible C6 nerve root impingement.
On 1 February 2019, Dr Jonathon Parkinson, neurosurgeon, noted that the applicant had predominantly right-sided neck pain from lifting a box at work and an MRI of the cervical spine showed minor disc bulge at C5/6 without nerve root compression. Dr Parkinson diagnosed an injury to the neck. He did not find radiculopathy on examination but recommended corticosteroid injections and physiotherapy.
On 12 February 2019, a bone scan report stated that there was low grade facet arthropathy at bilateral C5/6 and C6/7 levels but there was no evidence of significant cervical discovertebral disease.
On 20 February 2019, Associate Professor Jonathan Sturm reported that sensory nerve conduction studies showed that there was no electrophysical evidence of nerve entrapment.
On 28 February 2019, Dr Parker reported that nerve conduction studies and EMG did not show any significant problems, however a bone scan showed some facet arthropathy and he recommended right-sided facet injections of C5/6 and C6/7.
On 19 March 2019, the applicant underwent a CT guided glucocorticoid injection at the right side C5/6 and C6/7 facet joints.
The clinical notes from Wallarah Bay Medical Centre also record subsequent reports of severe neck and shoulder pain on 22 March 2019, 29 March 2019, 9 May 2019, and
16 May 2019. The applicant underwent radio frequency denervation in respect of his neck in May 2019. Again, on 28 May 2019, he experienced a sudden onset of right sided neck pain when driving, which appeared to trigger flare-ups.
On 2 April 2019, Dr Parkinson stated that the applicant had not received relief from cervical facet cortisone injections and he recommended referral to a pain management specialist.
The applicant was referred to Dr Lewis Holford, pain management specialist, in May 2019.
On 25 May 2019, Dr Holford noted that the applicant had significant right lower cervical paraspinal tenderness and lesser tenderness on the left. He noted that the applicant was continuing to work despite being in pain. He recommended diagnostic blocks to the right C5/6 and C6/7 facet joints to confirm if they were the source of the applicant’s pain and possible radiofrequency joint denervation.
On 21 June 2019, Dr Holford reported that the applicant underwent facet joint injections and radio frequency ablation in respect of his neck. He noted that the applicant was on light duties.
The clinical notes from Wallarah Bay Medical Centre record multiple reports of right-sided neck pain throughout 2019. On 28 June 2019 the applicant aggravated his neck by pushing a "dodgy" trolley. In September 2019, the applicant was still on light duties and his neck and shoulder pain was improving.
On 1 October 2019, a physiotherapist report noted that the applicant reported onset of intense right-sided neck pain that morning whilst dressing.
The clinical notes from Wallarah Bay Medical Centre record that on 1 October 2019, the applicant had sudden onset right neck pain and trapezius pain when he was undressing, which continued throughout October 2019.
On 3 October 2019, occupational therapist, Ms Cox noted that the applicant remained incapacitated due to recent aggravation of his neck pain but was working towards a goal of returning to pre-injury duties.

On 8 October 2019, Dr Green reported that the applicant’s correct diagnosis was cervical foraminal stenosis, cervical facet joint degradation bilaterally at C5/6 and C6/7 and that the applicant had undergone right-sided radiofrequency rhizotomy at C5/6 and C6/7 facet joints. Dr Green stated that he believed that the applicant was then capable of returning to restricted duties (which included an 8 kg lifting limit, one hour limit on repetitive lifting and picking per shift and no restriction on hours) and that a return to pre-injury duties was achievable within two months.
The clinical notes from Wallarah Bay Medical Centre record that on 28 January 2020, the applicant had right trapezius pain and a recurrence of right-sided neck pain and noted that the applicant would undertake a trial of pre-injury duties. However, on 6 February 2020, Dr Green recorded a “flare up of pain” with the applicant undertaking full duties.
On 28 February 2020, Dr Holford reported that the applicant had suffered an exacerbation of his neck pain and had new onset low back pain after recently returning to full-time duties for 38 hours per week. Dr Holford noted that there had been some recurrence of the applicant’s cervical facet pain and that the expected duration of the radiofrequency denervation is between six months and two years.
On 27 March 2020, Peak Conditioning reported in relation to the right trapezius strain and neck injury, that the applicant had successfully demonstrated the functional capacity to safely perform his pre-injury role as a store person with the respondent and demonstrated that he could transition manual handling skills taught within the treatment plan in a variety of different scenarios and adapt those skills to his home and work environment. Further, it stated that the applicant demonstrated that he could manage flare-ups and he understood the pacing and pain management concepts taught and could effectively self-manage his condition independently in the future.
The clinical notes from Wallarah Bay Medical Centre record that the applicant was free from neck and shoulder pain on 16 March 2020. However, complaints of flare-ups of neck pain in the absence of recent trauma or injury were noted on 7 April 2020 and again on 5 June 2020.
The clinical notes from Wallarah Bay Medical Centre record that on 3 July 2020, the applicant reported that his neck pain had been aggravated by recent “coughing”. Further, on 10 July 2020, the applicant reported that his neck pain had been aggravated by “vomiting”.
On 10 July 2020, physiotherapist, Ms Smith, reported (her report seems to be inaccurately dated 10 July 2019) that the applicant recently had right-sided neck pain “exacerbated by coughing fits” and that the applicant had no problems completing his work duties but was concerned about preventing exacerbation of his previous neck injury. Ms Smith stated the applicant had acute and chronic muscular loading and did not believe his symptoms related to his previous neck injury or vertebral involvement.
On 24 July 2020, Dr Green reported that on 3 July 2020 the applicant aggravated his past neck injury after an episode of coughing. He reported that when the applicant was last reviewed on 10 July 2020, he had ongoing neck pain and tenderness over the right trapezius and right shoulder muscle. Dr Green diagnosed soft tissue injury to the applicant’s neck and right trapezius, aggravating a previous injury, with a full recovery expected within weeks. He stated that the applicant’s employment and work duties were a substantial contributing factor in relation to the further treatment requirements.
Further, on 25 January 2021 and on 5 March 2021, Dr Moghaddam noted a relapse of neck pain in the absence of any new trauma or injury.
On 6 April 2021, an MRI of the cervical spine showed what the radiologist described as "an appreciable deterioration at C6/7 with a disc protrusion and annular tear".
Dr Moghaddam referred the applicant to Dr Damodaran on 6 April 2021 because of a relapse of his work-related neck injury and worsening of pain and a new MRI scan which showed some changes.
Various certificates stated that the applicant has no work capacity between March 2021 and June 2022 and variously noted neck pain with radiculopathy or feet pain or both.

Medico-legal opinions

Dr Posel, in his report dated 26 November 2020, stated a diagnosis of bilateral foot pain, which was likely a recurrence of plantar fasciitis, subject to a formal diagnosis upon MRI scans of both feet. Dr Posel was not convinced that the problem was one of heel pad fat necrosis. Dr Posel stated there was no underlying disease. Dr Posel attributed the condition to the applicant’s conditions of employment with the respondent, specifically an initial workplace incident on 28 October 2017, with flare-ups that occurred on 20 September 2019 and by aggravation following evacuation at work on 13 August 2020. Dr Posel stated that aggravation will cease with new custom orthotics.
Although the focus of Dr Posel’s report dated was the bilateral foot injury, he also referred to the applicant’s neck injury. Dr Posel stated that the applicant “pulled a muscle” in his neck after he attempted to retrieve a 15 kg box which slipped from his hands, and he noted that the applicant reported not having much time off work but being on restricted duties for almost a year. Dr Posel stated that the applicant had right-sided neck/trapezius pain on a scale of 9/10 until he underwent a facet joint denervation in his neck 12 months ago, and subsequently he had intermittent pain on a scale of 2/10. Dr Posel noted that the applicant reported that he was no longer driving a forklift as it required too much rotation of his neck. However, Dr Posel did not deal with the applicant’s neck injury in any significant way.
It is apparent from the treating evidence and the evidence of Dr Guirgis that the applicant has had significant further bilateral foot and neck injury symptoms since Dr Posel’s report dated 26 November 2020. Dr Posel did not provide an updated opinion and has not considered or dealt with more recent evidence of the applicant’s ongoing bilateral foot and neck injury symptoms and the applicant’s capacity in that context.
Dr Guirgis noted in his report dated 27 March 2021 that, contrary to Dr Posel’s opinion, the applicant continued to have ongoing bilateral foot pain triggered by prolonged standing and walking despite using gel support orthotics (and having purchased new boots to accommodate them) and regularly icing his feet. Prolonged standing or walking also triggered calf pain. Dr Guirgis noted that recent X-ray and ultrasound of the feet found no significant plantar fascia thickening however the left side was thicker and slightly heterogeneous in comparison to the right side, which raised the possibility of left-sided plantar fasciopathy. Dr Guirgis diagnosed chronic foot strain presenting with symptoms of a combination of heel fat pad syndrome and of plantar fasciopathy as a result of the nature and conditions of the applicant’s employment, particularly prolonged walking on hard surfaces.
Dr Guirgis, in his report dated 17 August 2021, noted that the applicant had ongoing feet pain triggered by prolonged standing and walking despite use of orthotics and regular icing of his feet. Prolonged standing or walking also triggered calf pain. Dr Guirgis also noted that the applicant had continuing neck pain and stiffness and continuing right C6/7 cervicobrachial symptoms in addition to some lower back symptoms. Dr Guirgis noted that the applicant had been doing “light” duties for almost a year with a lifting limit of 5 kg, without any improvement and his neck and back condition were slowly worsening, causing feelings of frustration, anxiety and depression with suicidal thoughts. On examination, Dr Guirgis noted normal alignment of the cervical spine, pain felt over the C5 to C7 spines and over the right to left supraspinous fossa, with restricted right-side and left-side motion. Dr Guirgis diagnosed ongoing symptoms, signs and disabilities in the applicant’s neck related to the nature and conditions of employment. Dr Guirgis stated that the applicant’s work activities caused chronic cumulative microtraumatic musculo-ligamentous sprain/strain with invertebral disc and facet joint involvement which triggered the symptoms of, aggravated and accelerated evolving age-appropriate changes, converting the normally symptomatic degenerative cascade of changes into the painful traumatic cascade. Dr Guirgis “tentatively” assessed 11% total whole person impairment, which included 5% whole person impairment in respect of the cervical spine.
Ms Warren submitted that Dr Guirgis relied on an incorrect history and did not fully consider the effects of the coughing incident in July 2020 in relation to the applicant’s neck injury. It is clear from Dr Guirgis’ report dated 27 March 2021, that Dr Guirgis took a history from the applicant and considered the insurer’s notice pursuant to s 78 of the 1987 Act, the Wallarah Bay Medical Centre notes including Dr Green’s investigation request, Dr Posel’s report dated 19 November 2020 and a podiatrist report dated 2 February 2021. In his report dated 17 August 2021, Dr Guirgis stated that he reviewed “documentation and new scans” that were provided. I note that Dr Guirgis did not specifically refer to the coughing incident in
July 2020 when he set out the applicant’s history. It is unclear to what extent he considered that incident and what his opinion was specifically in relation to that incident. However, Dr Guirgis did provide a detailed explanation of the likely injury processes to a symptomatic disabling clinical status following the accepted neck and right shoulder injury on 20 November 2018.
In Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 Simpson AJA observed at [26] (referring to decision of Malcolm CJ in Oakley), that:
“(a)    Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
(b)     Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
(c)    Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”
I note that those comments were made in the context of proceedings at common law in which negligence is alleged, however I accept that they apply equally to the assessment of the degree of permanent impairment from injury in workers compensation proceedings, and equally to the question of whether the applicant's incapacity results from the workrelated injuries.
In relation to the applicant’s neck injury, there is no medical evidence which specifically supports the contention that the coughing incident caused the appreciable deterioration at the C6/7 level being a disc protrusion with an annular tear evident on the MRI scan on
6 April 2021, or was of such a degree as to break the chain of causation. To the contrary, the evidence of Dr Guirgis was that the applicant’s work caused the traumatic cascade leading to the current presentation. In any event, having regard to the evidence as a whole, I cannot accept that the coughing incident in July 2020 itself caused such pathology without the workplace injury occurring.
Whilst it is clear from the evidence that the applicant’s neck symptoms were evident after an episode of coughing, as I noted earlier, as a whole the evidence indicates that the applicant’s symptoms fluctuated with flare-ups of symptoms from time to time and the applicant’s symptoms were also evident after lifting and “vomiting”.
For these reasons, I do not accept the respondent’s submission that the applicant’s cervical spine symptoms subsequent to him being certified fit for pre-injury duties in March 2020 were due to a “coughing fit” and were unrelated to the applicant’s employment. I do not accept that the coughing incident is a new injury sufficient to break the chain of causation, resulting in incapacity.
I note that there is some evidence that, at various times, the applicant’s symptoms responded positively to treatment or were somewhat improved, such as the reports of Dr Holford dated 26 September 2019 and 28 February 2020. Further, there is some evidence that, at various times, the applicant demonstrated functional capacity to return to pre-injury duties, such as the Peak Conditioning report of 27 March 2020, and certificates dated in March 2020, July 2020 and September 2020, which indicate that the applicant was fit for pre-injury duties at various times. Further, other certificates indicate that the applicant had limited or restricted capacity at various times.
However, there is also substantial evidence, particularly the clinical notes and the evidence of Dr Guirgis, that subsequent to the report of Dr Posel dated 26 November 2020, the applicant had subsequent flare-ups of neck pain and that he continued to experience bilateral foot pain and disability despite various treatments, the use of gel supports and regularly icing his feel. I accept the evidence of the treating practitioner that by July 2021, the applicant was struggling to walk, and that by March 2022, he was using a stick to assist him to walk. Further, I accept that the applicant continued to experience right-sided neck pain and disability and now has pathology of an annular tear and a disc prolapse causing ongoing symptoms.
When all the evidence is analysed and considered as a whole, what presents is a picture of a person whose work injuries have caused him significant injuries to his feet and neck (and right shoulder/trapezius), who has undergone numerous treatments and who has genuinely repeatedly tried his best to return to his pre-injury duties, including even purchasing his own work boots to accommodate the gel inserts. I accept that the applicant’s symptoms have fluctuated at times. Although there have been some times when it appeared that the applicant had functional capacity to return to his pre-injury duties or limited or restricted duties, ultimately however, the applicant’s attempts to do so have been unsuccessful because the applicant’s feet and neck symptoms have been ongoing and debilitating and have cumulatively resulted in the applicant no longer having any capacity to work.
For the reasons stated above, having regard to the evidence as a whole, I am satisfied that the applicant continues to suffer from the effects of the accepted work injuries to his feet and cervical spine. Further, I am satisfied that the applicant has no work capacity and has had no work capacity for the period from 7 April 2021.

Quantification of the applicant’s entitlement to weekly compensation

The applicant’s claim and the ARD refer to s 36 of the 1987 Act. However, the submissions of both the applicant and the respondent refer to calculation of compensation pursuant to
s 37 of the 1987 Act.
Lists of payments filed by the respondent show that:
(a) for the date of injury of 28 December 2017 (Claim No: WW18NS0574), 4 weeks of weekly benefits were paid, amounting to $2,439.29, and
(b) for the date of injury of 20 November 2018 (Claim No: WW19NS0098), 16 weeks of weekly benefits were paid, amounting to $9,655.15.
It is clear that the relevant entitlement period now is the second entitlement period pursuant to s 37 of the 1987 Act.
The parties agreed that the applicant’s pre-injury average weekly earnings was $1,014.
In accordance with s 37(1) of the 1987 Act, the applicant’s entitlement to weekly compensation during the entitlement period from 7 April 2021 to date and continuing is:
$1,014 x 80% = $811.20
Therefore, the applicant will be entitled to an award in accordance with the above calculations.

Medical expenses

I note that, in her submissions, Ms Grotte sought an order pursuant to s 60 of the 1987 Act for payment of the applicant’s medical and treatment expenses relevant to the accepted injuries. However, the ARD only referred to a claim for weekly benefits compensation. It did not include a claim for medical and treatment expenses and no application was made to amend the ARD in that regard. Further, there is no specific evidence of medical and treatment expenses claimed.
However, as the applicant has succeeded in his claim, it would be appropriate for the insurer to accept liability in respect of reasonably necessary medical, hospital and related expenses, but as there is no claim before me, I am unable to make any order. Hopefully common sense will prevail.

FINDINGS

Accordingly, I find that:
(a)    the applicant sustained bilateral foot injury with a date of injury of
28 December 2017, including recurrent injury on 8 October 2020, and neck and right shoulder injury with a date of injury of 20 November 2018;
(b)    the applicant’s employment was the main contributing factor to his injury, and
(c)    the applicant had no capacity to work since 7 April 2021.

ORDERS

Accordingly, it is appropriate that I order as follows:
(a) the respondent to pay the applicant weekly compensation in the amount of $811.20 per week from 7 April 2021 to date, and continuing pursuant to s 37(1) of the 1987 Act.

[2022] NSWPIC 395

20 July 2022