Scott v Qube Ports Pty Ltd
[2022] NSWPIC 352
•1 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Scott v QUBE Ports Pty Ltd [2022] NSWPIC 352 |
| APPLICANT: | Adam Scott |
| RESPONDENT: | QUBE Ports Pty Limited |
| MEMBER: | Gaius Whiffin |
| DATE OF DECISION: | 1 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claims for personal injuries to neck and back and disease injuries to neck and back; claims for weekly compensation and treatment expenses pursuant to section 60 of the Workers Compensation Act 1987 (1987 Act); consideration of applicant’s statements, medical reports and other treatment records, claim correspondence, wage material, and factual material; consideration of whether the applicant sustained a personal injury pursuant to sections 4(a) and 9A of the 1987 Act; Castro v State Transit Authority (NSW), Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear, Galluzzo v Commonwealth Bank of Australia, Zickar v MGH Plastic Industries Pty Ltd, Dayton v Coles Supermarkets Pty Ltd considered; consideration of whether the applicant sustained a ‘disease injury’ pursuant to section 4(b)(ii) of the 1987 Act; Federal Broom Co Pty Ltd v Semlitch and Cant v Catholic Schools Office considered; consideration of ‘current work capacity’ under clause 9 of schedule 3 of the 1987 Act and ‘suitable employment’ under section 32A of the 1987 Act; Wollongong Nursing Home Pty Limited v Dewar and ACW v ACX considered; |
| DETERMINATIONS MADE: | 1. The applicant sustained a personal injury to his cervical and lumbar spines arising out of or in the course of his employment with the respondent on 17 April 2020, pursuant to s 4(a) of the Workers Compensation Act 1987 (the Act). The applicant's employment with the respondent was a substantial contributing factor to the personal injury pursuant to s 9A of the Act. 2. As a result of the nature and conditions of the applicant's employment with the respondent, he has sustained a 'disease injury' pursuant to s 4(b)(ii) of the Act, being the aggravation, acceleration, exacerbation or deterioration of his cervical and lumbar spine degenerative disease in the course of his employment. His employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. 3. The applicant has been incapacitated for work as a result of the personal injury and the ‘disease injury’ since 18 March 2021. 4. Since 18 March 2021, the applicant has had no current work capacity. 5. The applicant’s pre-injury average weekly earnings (PIAWE) is $1,335.64. 6. The applicant is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the Act paid by the respondent. |
| ORDERS MADE | 7. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the Act from 18 March 2021 to date and on a continuing basis, at the rate of $1,068.51 (as adjusted applying relevant indexing) per week. 8. Liberty to apply will be granted to the parties to approach the Commission regarding the calculation of the applicant’s PIAWE. 9. There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the Act. |
STATEMENT OF REASONS
BACKGROUND
Adam Scott (the applicant) is 30 years old and commenced employment as a permanent part-time stevedore with QUBE Ports Pty Limited (the respondent) on or around 18 December 2017. Apart from performing some minor work for his brother, he has not worked for the respondent or any other organisation since 23 April 2020. His employment with the respondent was terminated by it on 6 October 2021.
The applicant alleges that he sustained injuries to his neck and back on 17 April 2020, whilst he was unlashing a car from a vehicle carrier ship. He also alleges that the general nature and conditions of his employment with the respondent either caused the injuries to his neck and back, or aggravated pre-existing degenerative diseases to his neck and back.
On 24 February 2021, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to his neck and back injuries allegedly sustained on 17 April 2020. The applicant has as a result not received any weekly compensation or payment of his medical expenses, since 18 March 2021. The respondent (through its solicitors) also issued a notice on 30 March 2022 denying liability for the applicant’s claim that the general nature and conditions of his employment with it either caused the injuries to his neck and back, or aggravated pre-existing degenerative diseases to his neck and back.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (the Commission), the applicant claims weekly compensation from 18 March 2021 to date and on a continuing basis pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act). That application was amended during a Commission teleconference on 14 February 2022 to include a claim for a “general order” for the respondent to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to section 60 of the 1987 Act.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Whether the applicant sustained injury arising out of or in the course of his employment pursuant to s 4 (a) of the 1987 Act.
(b) Whether the applicant sustained a ‘disease injury’ pursuant to s 4 (b) of the 1987 Act.
(c) If the answer to (a) is in the affirmative, whether the applicant's employment with the respondent was a substantial contributing factor to the injury pursuant to s 9A of the 1987 Act.
(d) If the answers to (a) and (c) are in the affirmative, or if the answer to (b) is in the affirmative, whether (and if so, to what extent) the applicant has been incapacitated for work as a result of injury, since 18 March 2021.
(e) If the applicant has been incapacitated for work as a result of injury since 18 March 2021, what is the correct calculation of his pre-injury average weekly earnings (PIAWE).
(f) If the answers to (a) and (c) are in the affirmative, or if the answer to (b) is in the affirmative, whether the applicant is entitled to reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act since 24 February 2021.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
An extensive conciliation conference was held in the dispute on 5 April 2022. On that occasion, Mr Tanner of counsel appeared for the applicant instructed by Mr Trainor, and Mr Hanrahan of counsel appeared for the respondent instructed by Ms Blake.
Following the conciliation conference, there was insufficient time left from the allocated time in order for the parties to make oral submissions on 5 April 2022. Indeed, the parties were still hopeful of being able to resolve the dispute by negotiation.
Written submissions were therefore ordered and have been provided.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the ARD and attached documents;
(b) the respondent’s Reply (Reply) and attached documents;
(c) the applicant’s Application to Admit Late Documents lodged 28 March 2022 (applicant’s AALD) and attached documents, and
(d) the respondent’s Application to Admit Late Documents lodged 30 March 2022 (respondent’s AALD) and attached documents.
Oral evidence
There was no oral evidence called at the arbitration hearing.
Applicant’s evidence
The applicant provided a statement signed on 19 November 2021 (page 3 of the ARD).
He mentions being informed that he was sent to have an X-ray on his neck and thoracic spine when he was around 10 years of age, but that he cannot remember what precipitated that referral. He also mentions experiencing low back pain when he was 16 years of age following surf boat training. He was sent for an X-ray and had some physiotherapy treatment, and made a complete recovery. He returned to participating in his normal sporting activities, including surf boat rowing and playing soccer.
He left school in 2009 after completing Year 12, and subsequently completed an apprenticeship in painting and decorating, although he never worked in that trade. Instead, he eventually found employment on the waterfront in around December 2016. His work prior to then had involved pizza delivery, supermarket shelf stacking, bar attendant work, and courtesy bus driving.
He initially worked on the waterfront for Ceva and then Pivotal Labour Hire before commencing his employment with the respondent on or around 18 December 2017. He worked for the respondent as a permanent part-time stevedore, averaging 25 hours per week, and being paid an hourly rate of $52. He received a medical clearance from his general practitioner prior to commencing with Ceva and he received a medical clearance from a doctor whom he was sent to by the respondent prior to commencing his employment with it.
He describes his work for the respondent as involving the loading and unloading of cars from vehicle carrier ships, 90% of the time. He was however also involved in the loading and unloading of other non-containerised cargo (such as steel cargo and bulk cargo), which involved “a fair amount of lifting and bending”. It also involved cleaning up spillages of bulk cargo and cleaning the hopper used to transfer bulk cargo. Heavy equipment was used to perform these cleaning activities.
His work while loading and unloading cars involved the lashing and unlashing of those cars, as well as the driving of the cars. He states:
“Lashing and unlashing involves a lot of bending and twisting and working on your hands and knees underneath vehicles. Each car will have a lashing on each wheel. This is attached to the deck of the vessel by a hook in the lashing, and is tensioned up so the vehicle remains secure. The cars are parked right up nose to tail very close, and so there is not much room to get to the lashings under the front and backs of the vehicles. It is necessary to open up the buckles on the lashings in order to get slack and then remove the hook… When you are doing this task, you are on your knees and your backside is up in the air and your shoulders are down low, and your head is flexed upwards looking at the lashing points.”.
He states that it was normal for four lashers to unlash between 1,000 and 1,200 cars in an eight hour shift.
He also states that while most cars had nylon lashing straps, larger vehicles were secured by chain lashing. The chains were heavier to manoeuvre, and a lashing bar was required to unlash the chains.
He describes how on 17 April 2020, he was reaching under the front of a car, while on his hands and knees, in order to undo the lashing around a wheel of the car. He was in a confined space and was stretching forwards. His back was bent over and his neck was bent forwards, when he felt pain in his lower back. He got up and continued with his duties, but after unlashing another seven or eight cars, his back pain had increased and he had also begun to develop pain in his neck.
He reported his pain to the respondent and consulted with a Dr Jones. He was given a certificate to only perform light duties employment, which he performed until 23 April 2020.
He saw his regular general practitioner, Dr Kalla, on 21 April 2020 and was put off work from 23 April 2020. Dr Kalla arranged radiological tests, physiotherapy treatment, and medication prescription. The doctor later referred him to a neurosurgeon, Associate Professor Jaeger, and then a rheumatologist, Associate Professor Reid.
He was treated by an exercise physiologist, and Associate Professor Reid treated him with medication prescription and injections.
As early as May 2020, he was also discussing his developing depression and anxiety following his work accident with Dr Kalla. He also consulted with a psychologist to whom he was referred by the respondent. He had previously experienced depression following the break-up of his marriage in 2018.
He continues to consult with Dr Kalla, who prescribes medication. He last consulted with Associate Professor Jaeger on 14 September 2021.
He has accepted that he is unable to return to his work with the respondent or indeed any general stevedoring work. On 8 September 2021, he therefore enrolled in a TAFE course (which runs until March 2023) with a view to obtaining employment as a support worker.
He discloses in his statement that in April and May 2021, he performed some light work for his brother, which involved laying carpet tiles for about an hour and a half, mowing his brother’s lawn, and walking his brother’s dog.
There is a statement from the applicant’s mother, Linda Scott, signed on 1 December 2021 (page 16 of the ARD). She cannot recall the reason for the applicant being referred for an
X-ray in 2004 and she only has a vague recollection of him having physiotherapy treatment in 2008. She advises however that he continued playing active sport for many years after 2008 (soccer and surf boat rowing) and never complained to her of any back issues.There is a statement from the applicant’s brother, Drew Scott, signed on 7 November 2021 (page 17 of the ARD). This statement confirms the work which the applicant disclosed in his statement that he performed in April and May 2021, and it also confirms the light nature of the carpet tile laying work.
The ARD also attaches:
(a) An incident report from the respondent (page 10) in relation to the accident on 17 April 2020 – although it appears to the Commission that the report was completed by different persons, it corroborates the version of the accident provided in the applicant’s statement.
(b) A letter from the respondent to the applicant dated 6 October 2021 (page 18), terminating his employment with it – relevantly advising “based on the available medical evidence you remain unfit to perform the inherent requirements of your role”.
(c) A workplace assessment report dated 20 May 2020 (page 29) – this includes some descriptions of the physical nature of the various employment duties that the applicant was required to perform whilst employed by the respondent, and is consistent with the applicant’s descriptions of those duties contained in his statement.
(d) The applicant’s 2019 financial year PAYG payment summary (page 130) and the applicant’s 23 April 2020 payslip with the respondent (page 131) – the applicant earned $57,015 in the 2019 financial year, and he earned $58,489.19 in the 2020 financial year up to 19 April 2020.
(e) The applicant’s current TAFE enrolment summary (page 132).
There is medical evidence attached to the ARD from Dr Kalla (including certificates of capacity), Associate Professor Jaeger, Associate Professor Reid, and a qualified orthopaedic specialist (Dr Ho). There is also a report from a psychologist, as well as radiological reports, and clinical notes from Thirroul Medical Centre, all of which I have considered but will only refer to specifically if I am referred to them in the parties’ submissions.
Dr Kalla prepared a report for the applicant’s solicitors, dated 19 December 2021 (page 26 of the ARD). The doctor refers to consulting with the applicant 34 times between 21 April 2020 and 15 November 2021, and the doctor obtained a history that the applicant was injured “unlashing vehicle on ship, got in a weird position and overextended his body repeatedly in order to unlash and unload the vehicles”, and that approximately 40-50 vehicles were unloaded.
The doctor refers to the applicant’s psychological condition arising as a result of his work injuries despite some contributing factors in his personal circumstances. The doctor describes how the applicant’s pain has limited his activity levels, including running and looking after his two young children. The pain has led to insomnia and has not responded to any form of intervention. The doctor concludes:
“Mr Scott, in my opinion, be limited in what form of work you can pursue in the future. I am certain that he cannot return to do a physical job like he performed in the past, simply due to the fact that he will start to experience increasing back pain. He will be limited to ‘light duties’, perhaps an office-based environment, with minimal lifting and ergonomic seating. He has disclosed to me that his work at QUBE was his career and wanted to see it through until the end, but this is obviously now not possible. He will need re-training and a change of career.”.
There are certificates of capacity from Dr Kalla (pages 115-129 of the ARD and pages 2-7 of the applicant’s AALD). In these certificates, the applicant is certified as unfit for work between 10 February 2021 and 10 March 2021, between 17 September 2021 and 15 October 2021, and between 12 November 2021 and 5 March 2022. There is also a certificate covering the period between 15 April 2021 and 20 August 2021 when the applicant is certified fit for work with restrictions in sitting, standing, bending, twisting, and squatting, and with a 5kg limit placed upon activities involving lifting, carrying, pushing, and pulling.
Associate Professor Jaeger would not provide a report to the applicant’s solicitors, but did provide them with copies of earlier reports that he had written dated 9 June 2020 (pages 43-44 of the ARD), 21 July 2020 (pages 45-47 of the ARD), and 14 September 2021 (pages 48-49 of the ARD). He takes a history of the applicant on 17 April 2020 “in an awkward position on this day performing a twisting motion resulting in a sudden onset of neck and back pain”. He also takes a history that the applicant “has never had similar symptoms before”.
His initial findings and review of the applicant’s radiology led him to request an MRI scan and a bone scan of the lumbar spine. The bone scan showed evidence of bilateral sacroiliitis but the MRI scan was unremarkable. He then suggested that the applicant be referred to a rheumatologist. He records that by 21 July 2020, the applicant’s neck pain had improved especially with physiotherapy, but that his back pain remained unchanged.
He consults with the applicant again on 14 September 2021 and states in his report of that date:
“The back pain, from my point of view, is related to the work injury last year. Treatment from hereon should be analgesia, regular physiotherapy. Adam will probably need to look into a career change to avoid manual labour to control his back problems well. Should his pain deteriorate, I have advised him to return to see me. At this stage, I do not think that surgical intervention is advisable.”.
Upon the recommendation of Associate Professor Jaeger, the applicant consulted with Associate Professor Reid on a number of occasions between 30 September 2020 and 17 June 2021. In his initial report dated 30 September 2020 (pages 51-52 of the ARD), the doctor takes the following history:
“Adam has had mechanical back pain for the last 4 years while he has been doing his job as a stevedore but is pain–free when he is not bending and lifting at work. In April of this year he had a sudden onset of pain in his neck and lower spine which seems to get worse with use. He has not had associated neurology.”.
The doctor finds tenderness at both sacroiliac joints, and orders further radiology and blood tests to clarify if there is an inflammatory process. Following a further MRI scan, the doctor diagnoses non-radiographic axial spondyloarthropathy in his 28 October 2020 report (pages 54-55 of the ARD). He places the applicant on a course of Certolizumab, and then on a course of Secukinumab from February 2021. As however neither of these courses result in any response from the applicant, he eventually concludes in his 17 June 2021 report (page 59 of the ARD) that the applicant does not have spondyloarthropathy but degenerative lumbar spine disease that “should be treated with simple analgesia, physiotherapy, and avoiding manual tasks that exacerbate his pain.”.
The doctor had already noted (in his 21 April 2021 report – page 57 of the ARD) the applicant’s confirmed diagnosis of degenerative lumbar disease, which he assumed that the majority of his pain was from. He finally concludes in a medical certificate dated 17 June 2021 (page 60 of the ARD) that:
“This letter is to confirm that after extensive investigation I can confirm that Adam does NOT (emphasis of the doctor) have spondyloarthritis. He has degenerative lumbar spinal disease, far out of proportion to what would be expected at his age. This is almost certainly due to his work as a stevedore. I would therefore support his ongoing workers compensation claim.”.
The applicant’s solicitors arranged for him to be examined by Dr Ho (report at page 62 of the ARD). The examination took place on 7 October 2021. The doctor was provided with a history that the applicant’s job involved loading and unloading cars from ships, including undoing all the lashing straps which would have 4 for each car. The doctor was told “he has to walk [sic] with his neck bent or tilted, or with the back flexed or the knees bent to work”, and that he started to notice low back pain as well as neck pain in April 2020. The doctor was not provided with a specific account of what happened on 17 April 2020.
Dr Ho summarises the applicant’s treatment history with Associate Professor Jaeger and Associate Professor Reid, as well as the radiological evidence provided to him.
There was a CT scan of the applicant’s cervical spine which showed right side foraminal narrowing at the C3/4 level. There was an MRI scan of the applicant’s lumbar spine which showed bilateral L5 spondylolisthesis with Grade 1 anterolisthesis of L5 on S1.
The applicant complained to the doctor of low back pain and muscle pain, associated with stiffness and weakness. The applicant also complained of pain in the neck, without much stiffness. There was no radiation of the pain or neurological symptoms in either the arms of the legs.
On examination, the doctor found:
“The low back is sore in the typical area over the belt area with some muscle spasm. The back movement is not too bad. On forward flexion his fingers can still touch the lower shins. There is about 25% loss of movement in every direction. Straight leg raising is 70° and is only limited by tight hamstrings. There is no evidence of neurology.
Cervical spine movement is quite good. There is some muscle spasm but no obvious upper limb neurology.”.
The doctor diagnosed cervical spondylosis with a mild degree of muscle spasm and stiffness, as well as lumbar spondylosis. He opined that “his problem is degenerative both in the lumbar spine and in the cervical spine”, and that he did not have inflammatory arthritis.
The doctor goes on to opine that the applicant “is suffering from a disease and then an aggravation of the disease from his employment since 2017 is the major contributing factor to the present situation”. The aggravation has not ceased and is the reason for the applicant’s ongoing low back pain and mild neck pain. The doctor explains his opinion as follows:
“The cervical spine problem is not major. There is minor disc degeneration so he has much better function in the cervical spine. Certainly his tall height working in a confined space is causing some pain in the neck while the spondylolisthesis, which may be a pre-existing problem aggravated by the nature and conditions of work with the back bent and twisting into a tight space such as squeezing into the car or unlashing all the straps, can aggravate the whole situation causing the continuous problem of back pain.”
The doctor does not believe that the applicant requires surgery and recommends conservative treatment, with the applicant changing the nature of his work, so that it does not involve repeated standing and twisting movements, or heavy lifting. He believes that the applicant needs to be re-trained.
Dr Ho was later sent a copy of an X-ray report in relation to the applicant’s thoracic and lumbar spines dated 3 December 2008 (report found at page 72 of the ARD). The doctor provides opinions regarding that X-ray report in a further report dated 2 December 2021 (page 68 of the ARD). The doctor believes that the X-ray report confirms his opinion that the applicant had pre-existing problems which were aggravated by the nature and conditions of his work. The X-ray report already included a diagnosis of bilateral pars defect of L5 spondylosis with spondylolisthesis of L5 on S1. The doctor states:
“This is exactly what I meant in my original report stating that the low back pathology noticed on the MRI scan was probably pre-existing, not the acute traumatic spondylolisthesis, and this confirmed the case.
Mr Scott had this condition for a long time until the later condition of working in a confined space requiring twisting and bending of the back aggravated the back pain. Similarly, for the pain in the neck, if we look at the CT report it only mentions foraminal narrowing at C3/4 level, moderately on the right side and this sort of problem usually would not be an acute problem because if it is an acute traumatic problem it would need a reasonable injury to cause the prolapsed disc and in this particular case the CT scan cannot really confirm whether this is a prolapsed disc or just facet joint degeneration causing the mild to moderate foraminal narrowing.
Despite never complaining of neck or back pain before when under his GP’s care, I still do not believe there is a particular injury which caused this problem in the neck, it was probably just the nature and conditions of his work causing the aggravation and the situation in the lower back is very sure because the x-ray report actually confirmed my assumption with pre-existing problems.”
Dr Ho was also asked to prepare a further report dated 22 December 2021 (page 70 of the ARD). In this report, the doctor confirms his opinion that the applicant’s “employment since December 2017 has been the main contributing factor to the aggravation whether it is in the cervical spine or the lumbar spine”.
Respondent’s evidence
The respondent relies upon medical opinions proffered by Drs Reiter and Deshpande.
Dr Reiter has prepared four reports in all, but only consulted with the applicant once on 28 January 2021.
In her 28 January 2021 report (page 58 of the Reply), she takes a history that the applicant’s “work mostly involves the ships that bring in the cars from overseas, with him often getting up and down, as well as under the cars, undoing the lashes that hold the cars in place on the ship”. She takes a history of his 17 April 2020 accident occurring as he was “down on all fours and he reached under one of the vehicles with his right hand to pick up lashing”.
In the report, she records that the applicant continues to complain of cervical, thoracic and lumbar spine pain. The pain is worse in the morning and is associated with up to one and a half hours of stiffness. The pain also increases in intensity if the applicant is repetitively bent forward. The applicant was having difficulties ascending and descending stairs. He was still being treated by Associate Professor Reid. He had not worked since April 2020, and his parents assisted him with his domestic tasks. He had difficulties driving long distances, and he had not returned to playing soccer.
Examination of the applicant’s cervical spine did not reveal any issues, but examination of his lumbar spine revealed tenderness centrally from L4 down to S1 with reduced forward flexion, and a Schober’s test was significantly reduced at 3cm.
The doctor opines that the applicant’s presentation was consistent with non-radiographic axial spondylitis which bore no relationship with his employment or the 17 April 2020 accident. The condition had not been aggravated by that accident. She states:
“Given the extensive degenerative changes present on imaging of both his cervical and lumbar spine, in particular his pre-existing condition of L5 spondylolysis, which would have predisposed him to his lumbar spine degenerative disease, it is possible that when he reached under the car, he may have exacerbated this underlying, pre-existing degenerative disease affect his cervical and lumbar spine. However, this exacerbation has long since passed and the incident has not contributed in anyway to his underlying pathology. What he described was very minor incident that would place very little strain on his cervical and lumbar spine, with him being down on all fours when he reached under the car to pick up the lashing.”
The doctor believes that the applicant was fit for a return to work four hours per day, three days per week, as long as he was able to sit and stand as required.
In a further report dated 21 June 2021 (page 64 of the Reply), Dr Reiter reviews the records of Associate Professor Reid. She agrees that the applicant has the diagnosis of degenerative lumbar spine disease, but opines that “it has NOT (her emphasis) been confirmed to be due to his work”. She is surprised at some of the treatment provided to the applicant by Associate Professor Reid without there being a confirmed diagnosis of spondyloarthropathy. She repeats her opinion as quoted at paragraph 56 above.
In a further report dated 10 August 2021 (page 67 of the Reply), Dr Reiter also repeats her opinion as quoted at paragraph 56 above following reviewing a copy of an X-ray report in relation to the applicant’s thoracic and lumbar spines dated 3 December 2008 (report found at page 72 of the ARD). The narrowing of his L5/S1 disc shown in that report indicated evidence of disc degeneration which would only progress over time.
In a final report dated 2 March 2022 (page 6 of the respondent’s AALD), Dr Reiter was asked by the respondent’s solicitors to review documentation provided to her by them, and then answer four questions. She confirms that “it is possible but not probable” that the applicant’s 17 April 2020 accident may have aggravated his cervical and lumbar spine disease. She confirms that any such exacerbation would have long since passed as the accident was a “very minor incident”.
She also confirms that the nature and conditions of his employment with the respondent had not aggravated his pre-existing degenerative cervical and lumbar spine disease. She notes in this regard that the applicant only worked 25 hours per week for the respondent. She states:
“In addition, he would only do lashing and unlashing 30-90 minutes at a time, at most once a day, which did require him to ‘frequently bend’, but I would consider this to be no more than the bending that would be required in one’s day-to-day life. In his other duties including PCC driver, Gear Store and General Duties, he was only required to occasionally bend. Therefore, I would consider that this was an exacerbation, such that he experienced his pain due to his own constitutional, underlying, pre-existing degenerative lumbar and cervical spine disease whilst at work but it did not contribute to his underlying pathology”.
and:
“Mr Scott physical condition is not related to his employment. It is simply that he experienced pain affecting his lower back when doing the activities involved in functioning as a Stevedore”.
Dr Reiter considers that the applicant is able to work with a lifting/carrying capacity up to 10kg, with a pushing/pulling capacity less than 10kg, with a maximum sitting capacity of 30 minutes, and with only occasionally bending/twisting. She also considers that he would benefit from seeing a pain specialist for lower lumbar facet injections of cortisone and anaesthetic, and potentially later for a radiofrequency ablation of the nerves that supply the facet joints.
Dr Deshpande’s report dated 13 August 2020 is found at page 54 of the Reply.
The doctor takes a history that the applicant’s work with the respondent was “very heavy at times”. The 17 April 2020 accident occurred when he was bending down to reach under a car, when he felt pain in his lower back and neck.
The applicant complained to the doctor of a “constant low backache”, although “his neck symptoms are better”. The doctor performed a “normal” neck examination, but found the lumbar spine to be tender including the sacroiliac joints. Under “spinal motion”, he records:
“flexion he can reach his fingertips to the ankles. Extension 30 degrees. Side to side flexion and rotation 2/3”.
The doctor opines that the applicant is fit for suitable full-time duties, with a 10kg lifting restriction. He does not believe any further treatment would assist. He believes that sufficient time had elapsed since the 27 April 2020 injury for it to resolve. He diagnoses the injury as a lower back musculoligamentous strain.
The respondent also relies upon the following evidence:
(a) A 3 December 2008 X-ray report of the applicant’s lumbar and thoracic spines – page 8 of the Reply.
(b) A 15 October 2008 referral for the applicant to have physiotherapy treatment – page 1 of the respondent’s AALD.
(c) A 12 May 2020 report from Dr Kalla clearing the applicant as fit for partial duties and opining that his injury would take four to eight weeks to settle - page 2 of the respondent’s AALD.
(d) Certificates of capacity from Dr Kalla dated 6 May 2020, 21 May 2020, 22 May 2020 – pages 39-53 of the Reply.
(e) Physiotherapy and rehabilitation reports - pages 9-38 of the Reply and pages 3-5 of the respondent’s AALD.
I have considered this evidence but will only refer to it specifically if I am referred to it in the parties’ submissions.
Applicant’s submissions
The applicant’s submissions have been reduced to writing. I will not go through them in detail.
The crux of the submissions is:
“The applicant claims compensation in respect of injuries received in the course of his employment to his neck and back. Those injuries were caused by the nature and conditions of his employment as a stevedore, involving constant, repetitive and strenuous physical activities on a daily basis. The applicant’s activities on 17 April 2021 [sic] were typical of those performed regularly and resulted in the acute onset of symptoms.”
It is submitted that the applicant describes the physical nature of his general employment duties with the respondent in his statement. It is also submitted that the workplace assessment report dated 20 May 2020 is entirely consistent with the applicant’s description. Specifically, the report refers to duties requiring frequent bending, working in tight spaces, adopting awkward postures, occasional twisting, and occasional lifting.
It is submitted that the respondent has failed to challenge the description of the physical nature of the applicant’s general employment duties, and there is therefore no evidence contradicting the understanding that the applicant’s duties involved very physical work.
The applicant asks the Commission to accept the medical opinions provided by Dr Ho as those opinions are based upon “a proper understanding of the physical stresses to which the applicant was subjected in performing his duties as a stevedore”. Dr Ho diagnoses that the applicant suffers from a degenerative disease both in his lumbar spine and in his cervical spine, and opines that the disease was aggravated by his employment since 2017. The doctor opines that the aggravation has not ceased and that the employment has been the main contributing factor to the aggravation, both in relation to the lumbar spine and the cervical spine.
The applicant’s submissions point out that there is no evidence of any other source of aggravation other than the applicant’s employment duties.
The applicant also asks the Commission to accept the evidence of Associate Professor Jaeger, Associate Professor Reid, and Dr Kalla. The doctors all find a causative relationship between his employment duties and his lumbar spinal disease. Importantly, both Associate Professor Jaeger and Associate Professor Reid refer to the need for the applicant to avoid manual tasks as they are likely to exacerbate his pain from his degenerative lumbar spine disease. The applicant contends that it was such activities and manual tasks during the course of his employment with the respondent that led to the aggravation of his disease in the first place.
The applicant submits that the evidence of the spinal symptoms of his in 2008 adds further weight to the contention that he had a pre-existing spinal disease. Both he and his mother however confirm that he remained very active in his youth. Any spinal symptoms prior to April 2020 were understandable considering the nature of his disease, but they were entirely different from the “drastically incapacitating symptoms” since April 2020.
In relation to the report provided by Dr Deshpande, the applicant submits that the doctor took a history of the heavy nature of his work, and then found him to suffer from a work injury on the background of an underlying condition. However, the doctor’s opinions then become contradictory as on one hand they suggest that the work injury has resolved, and on the other hand they note that the applicant continues to complain of constant low back ache and they recommend significant restrictions to his employment activities.
The applicant then refers to the opinions of Dr Reiter and submits that they should not be accepted as:
(a) When she examined the applicant on 28 January 2021, she proceeded on the basis of a single episode of injury on 17 April 2020 – she failed to appreciate the applicant’s contention that his condition was due to repetitive and strenuous physical activities throughout the period of his employment with the respondent – when she was later advised by the respondent’s solicitors of this contention, she provided an ipse dixit opinion that the nature and conditions of his employment did not aggravate his underlying cervical and lumbar spine disease, without appreciating the daily and onerous stresses that he was exposed to in his employment over a period of greater than three years.
(b) She acknowledged that it was possible that the applicant exacerbated his pre—existing cervical and lumbar spine disease on 17 April 2020, and she acknowledged his ongoing neck and back symptoms (which she suggested were worthy of attention from a pain specialist) since that date - she then however failed to explain her opinion that any exacerbation had resolved and that his current presentation was due to his underlying cervical and lumbar spine disease, especially in circumstances where that disease had not caused him symptoms for around 10 years prior to 17 April 2020, but had caused him unrelenting symptoms since 17 April 2020.
(c) Associate Professor Reid (who consulted with the applicant on numerous occasions as a treating rheumatologist) does not support her diagnosis of non-radiographic axial spondylitis.
In relation to his capacity for work, the applicant submits that he currently has no such capacity. This is certified to by Dr Kalla.
The respondent has conceded that he was unfit to perform the inherent requirements of his employment with it when it terminated his employment with it. Dr Ho opined that he needed re-training.
Dr Reiter’s opinion that he was capable of working 12 hours per week should be rejected especially as the respondent has provided no evidence regarding any “real job” that would be available to him.
The applicant seeks an ongoing award pursuant to s 37 of the 1987 Act from 18 March 2021 on the basis that he has no capacity for any work. He also seeks a “general order” for expenses pursuant to s 60 of the 1987 Act.
Respondent’s submissions
The respondent’s submissions have also been reduced to writing. I will not go through them in detail.
The respondent draws the Commission’s attention to the opinions of Drs Deshpande and Reiter, as well as the applicant’s certificate of capacity covering the period between 15 April 2021 and 20 August 2021 when he was certified fit for work with restrictions (see paragraph 34 above). It also refers to conflict between the applicant and his father, the applicant’s separation from his wife, and the applicant’s psychological factors (without being more specific as to the relevance of these issues).
The respondent criticises Dr Ho’s opinions as not been founded on any “real cogent or persuasive scientific basis”. The doctor speaks in general terms without further explanation. He adopts the applicant’s complaints of ongoing spinal stiffness and is then able to argue in reverse that the aggravating effects of any work injury sustained by the applicant have not ceased.
The respondent submits that there is no satisfactory answer to the question as to why the applicant’s pain has persisted for so long, although it concedes that “if the worker’s complaints are accepted the effects of his injury are ongoing”.
In relation to the applicant’s capacity for work, the respondent submits that the following should be taken into account:
(a) The applicant bears the onus of demonstrating the extent of his incapacity - he has offered little evidence of his attempts to find work other than measures offered by the respondent.
(b) The applicant has transferable skills and has performed a variety of casual work in the past.
(c) The applicant has a trade (painting and decorating).
(d) The applicant has a substantial functional capacity having recently enrolled at TAFE - and successfully completed courses there.
(e) The evidence from Prudence Rehab assesses the applicant as having an ability to operate plant and/or machinery, as well as assisting in storeroom or warehouse duties.
The respondent submits a PIAWE amount of $1,279.57. However, the respondent has provided no evidence to substantiate how this amount is calculated. It submits that there is June 2020 correspondence in this regard which should have been lodged by it with the Commission, and it seeks leave to now lodge this correspondence with the Commission. I do not intend to grant that leave. The applicant would be significantly prejudiced if I granted that leave at this stage of the proceedings. There are no adequate reasons to explain why the correspondence was not lodged with the Commission earlier, and its lodgement now would not in my opinion be in accordance with the objects of the Commission under ss 3 and 42 of the Personal Injury Commission Act 2020. In this regard, I have considered Procedural Direction PIC3, as well as rule 67 of the Personal Injury Commission Rules 2021.
Applicant’s submissions in reply
These submissions have also been reduced to writing. I will not go through them in detail.
The applicant notes that the respondent did not in its submissions challenge the physically demanding nature of the tasks which he had to routinely perform in the course of his employment with it.
The applicant then defends the criticism of Dr Ho’s opinions in the respondent’s submissions, arguing that Dr Ho took a proper history from the applicant and had a proper understanding of the physically demanding nature of his employment with the respondent. The applicant continues:
“It will be noted that the respondent provides no argument as to the respects in which Dr Ho has erred in his understanding of the applicant’s work tasks, or in reaching his conclusions as to how those work tasks aggravated the condition of the applicant’s spine. It will also be noted that the respondent does not refer to any alternative medical opinion as providing a basis which establishes that Dr Ho has misdirected himself.”
The applicant maintains that the respondent has provided no evidence to place in issue the veracity of his complaints of persisting pain since 17 April 2020. In those circumstances, the respondent’s concession (referred to at paragraph 85 above) is notable.
In relation to his capacity for work, the applicant submits that despite the factors referred to by the respondent (see paragraph 86 above), he is still in significant pain which would clearly affect any return to work. Despite the factors raised by the respondent, it has still not addressed the issue as to the extent of the applicant’s incapacity, or provided evidence of any “real job” available to him.
The applicant submits a PIAWE amount of $1,392.60 - calculated in relation to the 42-week period between 1 July 2019 and 19 April 2020 (as evidenced by his payslip dated 23 April 2020 – page 131 of the ARD).
FINDINGS AND REASONS
Injury
“Injury” is defined in section 4 of the 1987 Act as follows:
“In this Act: injury means:
(a) personal injury arising out of or in the course of employment,
(b) includes a ‘disease injury’, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
I have come to the conclusion that the applicant sustained a personal injury pursuant to s 4(a) on 17 April 2020. I have also come to the conclusion that during the course of his employment with the respondent and other waterfront employers since around December 2016, he has aggravated and/or exacerbated a disease pursuant to s 4(b)(ii). Even though other employers may have been involved in this aggravation and/or exacerbation, pursuant to s 16 of the 1987 Act, the respondent is liable to compensate the applicant as the last employer to employ him in employment that was a substantial contributing factor to the aggravation and/or exacerbation. The injury pursuant to s 4(b)(ii) will be deemed to have occurred on 17 April 2020.
There is a review of the authorities concerning the issue of personal injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (Castro). That case makes it clear that what is needed is a “sudden or identifiable pathological change”. In Castro, a temporary physiological change in the body’s functioning (atrial fibrillation), without pathological change, did not constitute a personal injury.
Consistent with Castro, in the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47, Deputy President Roche stated:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro at [138]).” (At [60].)
Deputy President Roche also stated in Galluzzo v Commonwealth Bank of Australia [2014] NSWWCCPD 82:
“A ‘personal injury’ is ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Kennedy Cleaning Services Pty Ltd v Petkoska[2000] HCA 45; 200 CLR 286 per Gleeson CJ and Kirby J at [39]). The Commission has consistently applied this statement (North Coast Area Health Service v Felstead[2011] NSWWCCPD 51 from [79] (Felstead)). Moreover, as was explained in Felstead (at [81]), to constitute a personal injury, such a physiological change or disturbance change ‘may be as simple as a bruise or a soft tissue strain’”.. (At [30].)
The complaints of the applicant as to what occurred on 17 April 2020 (which I accept) in relation to experiencing sudden pain whilst he was in a confined space and stretching forwards with his back bent over and his neck bent forwards support that what then occurred was a physiological change or disturbance to his neck and back.
The respondent’s incident report as to what occurred on 17 April 2020 is consistent with the applicant’s version. That the applicant then sustained a physiological change or disturbance is confirmed by his need to consult with a general practitioner (Dr Jones) on that date. While the certificate of capacity from Dr Jones dated 17 April 2020 only refers to “low back injury”, I am also satisfied that there is contemporaneous medical evidence that he sustained a personal injury to his neck on 17 April 2020 in the forms of:
(a) The clinical notes from his regular general practitioner (Dr Kalla) whom he first consulted with on 21 April 2020.
(b) The workplace assessment report from Prudence Rehab dated 20 May 2020.
(c) The report dated 9 June 2020 from his first treating specialist, Associate Professor Jaeger.
Although it seems to be a common view amongst the medical practitioners who have examined the applicant that prior to 17 April 2020, he suffered from a pre-existing degenerative cervical and lumbar spine disease, this does not prevent me from finding that he sustained a personal injury on that date in accordance with s 4(a) of the 1987 Act. See Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31, where Toohey, McHugh and Gummow JJ stated:
“But the present case is not one of an autogenous disease. Or, to put it more accurately, it is not an autogenous disease upon which the appellant relies. It may be accepted that the aneurism was an autogenous disease but the appellant's claim to personal injury within par (a) is based on the rupture which occurred. From Dr Stening's evidence, it is clear that the rupture of the aneurism was not inevitable and further that the rupture may have been minor, allowing the appellant, after treatment, to return to his previous occupation. If there was no rupture there would be no event answering the description of personal injury and the appellant would be driven to rely upon par (b) of the definition. But there was such an event and the presence of a disease does not preclude reliance upon that event as personal injury.”
In the applicant’s case there was an “event” which occurred on 17 April 2020 and that led to physiological changes to his neck and back.
In relation to the personal injury to the applicant’s neck and back that I have found occurred on 17 April 2020, s 9A of the 1987 Act needs to be considered. It relevantly provides:
“No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.”
Sub-section (2) of s 9A provides examples of matters to be taken into account in determining whether employment was a substantial contributing factor. The list, which is not exhaustive, has six examples:
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29]) to be decided after a consideration of all the evidence.
Having accepted the applicant’s evidence as to the events which occurred on 17 April 2020, and having considered the contemporaneous medical evidence, as well as having considered the matters raised in s 9A(2), I conclude that his employment was a substantial contributing factor to the personal injury that then occurred. Although he suffered from a pre-existing degenerative cervical and lumbar spine disease, the time and place of the injury as well as the work that he was then performing allow me to arrive at this conclusion. Only Dr Reiter (whose opinion, as discussed later, I do not accept) expresses an opinion that the applicant’s pain symptoms since 17 April 2020 have been due to his pre-existing disease, but even she concedes the “possibility” rather than “probability” of an exacerbation of that disease on 17 April 2020.
Having found that the applicant sustained a personal injury on 17 April 2020, I also find on the medical evidence that the general nature of the work that he performed for the respondent has led to him sustaining an injury in accordance with s 4(b)(ii) of the 1987 Act. In this regard, I rely specifically upon the evidence from Associate Professor Reid and Dr Ho, and I place little weight upon the evidence from Dr Reiter.
I also accept the evidence given in the applicant’s statement as to the physical nature of his work. I specifically refer to the evidence outlined at paragraphs 16-19 above in this regard. The respondent has led no evidence contradicting this evidence from the applicant, and makes no submissions regarding it being inaccurate. I accept that the work involved a considerable amount of bending and twisting, and getting into awkward confined positions. It was normal for the applicant to have to unlash as many as 300 cars in eight hours. To unlash a car the applicant would have to be on his knees, with his back bent and his neck flexed upwards.
Dr Ho accepts that the applicant has a degenerative condition affecting his cervical and lumbar spines. The doctor appreciates the degree of bending, twisting, and working in confined spaces, that was involved with the work that the applicant performed for the respondent. The doctor accepts that this work aggravated the applicant’s degenerative condition in both his cervical and lumbar spines, and he opines that the applicant's employment since December 2017 has been the main contributing factor to that aggravation in relation to both his cervical and lumbar spines. A review of the applicant’s X-ray report dated 3 December 2008 confirmed his opinions.
I do not agree with the respondent's submission (see paragraph 84 above) that Dr Ho has not provided a proper explanation for his opinions. After reviewing his opinions in detail (see paragraphs 41-50 above), I am persuaded that he has properly reviewed all the information provided to him by the applicant and the applicant’s treating medical practitioners, arrived at diagnoses of degenerative lumbar spine and cervical spine diseases, and then explained the method by which the work duties performed by the applicant for the respondent aggravated both the cervical and lumbar spine diseases.
The opinion of Dr Ho is consistent with the opinion of Associate Professor Reid. I find Associate Professor Reid’s opinions to be particularly helpful, as the applicant consulted with him regularly over close to nine months. He ordered tests and radiology and placed the applicant on courses of injections. Following all this treatment, he changes his diagnosis from non-radiographic axial spondyloarthropathy and diagnoses only degenerative lumbar spine disease. His opinion is that the lumbar spine disease is out of proportion to what would normally be expected in a man of the applicant's age, and is therefore "almost certainly" due to the applicant’s work on the waterfront. He has in my opinion been able to consider the applicant’s condition in detail and over an extended period of time.
The applicant’s other treating specialist, Associate Professor Jaeger, is less specific than Associate Professor Reid, but in his 14 September 2021 report, he does relate the applicant’s back pain to his “work injury last year”.
I accept the applicant’s submissions regarding not being able to accept the opinions of Dr Reiter. In this regard, it is clear to me that the nature of the applicant’s work with the respondent has not been correctly recorded (see paragraphs 53 and 61 above) by the doctor. To opine that the bending required by the applicant in his work was no more than the bending that would be required in one's day-to-day life (in circumstances where I have accepted the applicant's evidence that he would regularly be required to unlash as many as 300 vehicles in an eight hour shift) is a bald assertion that is simply not sustainable.
Dr Reiter only examined the applicant on one occasion (at a time when Associate Professor Reid had made a preliminary diagnosis of non-radiographic axial spondyloarthropathy but was still investigating). She therefore makes the same initial diagnosis, but after that diagnosis has been ruled out by Associate Professor Reid, she still (unlike him) refuses to acknowledge a causal relationship between the applicant’s employment duties and the aggravation of his cervical and lumbar spine diseases. She only acknowledges the “possibility” of a brief exacerbated in this regard on 17 April 2020.
In my opinion, she fails to explain why the applicant’s pain and other symptoms from his degenerative disease were non-existent for many years prior to 17 April 2020, but have been consistent and unrelenting since 17 April 2020. This is in circumstances where she accepts the ongoing nature of the symptoms, even suggesting that the applicant consult with a pain specialist.
The other qualified specialist relied upon by the respondent, Dr Deshpande, does not provide an opinion regarding whether the general nature of the applicant’s employment with the respondent aggravated his pre-existing degenerative cervical and lumbar spine diseases, although the doctor does acknowledge that the applicant’s work was ”very heavy at times”.
The High Court considered the issue of aggravation and exacerbation of disease processes in Federal Broom Co Pty Ltd v Semlitch (1963) 110 CLR 626 (Semlitch). Kitto J said:
“There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.
Burke CCJ then applied Semlitch in the matter of Cant v Catholic Schools Office [2000] NSWCC 37, and said:
“The thrust of these comments is that irrespective of whether the pathology has been accelerated there is a relevant aggravation or exacerbation of the disease if the symptoms and restrictions emanating from it have increased and become more serious to the injured worker.”
Accepting the evidence of the applicant, Dr Ho, and Associate Professor Reid, I find that the applicant’s pre-existing degenerative cervical and lumbar spine disease was aggravated by his employment with the respondent. His experience of the disease was intensified by an increase in symptoms, and the disease has become more serious to him.
The employment however must be the main contributing factor to the aggravation of the disease in order for that aggravation to be held to be an injury within s 4(b)(ii) of the 1987 Act. I have no difficulty making such a finding.
I accept the submission of the applicant that there is no evidence of any other source of aggravation of his pre-existing degenerative cervical and lumbar spine disease, other than his employment duties. There are no other identified contributing factors to the aggravation.
In addition, Dr Ho (see paragraph 50) specifically opines that the applicant's employment since December 2017 has been the main contributing factor to the aggravation, and Associate Professor Reid (see paragraph 40) specifically opines that the applicant's degenerative lumbar spine disease is out of proportion to his age expectation, and that this is "almost certainly due" to his employment.
Incapacity
The respondent concedes that if I accept the applicant's complaints, "the effects of his injury are ongoing". I do accept his complaints of pain and restriction. He has been consistent in his explanation of these complaints to the doctors who have examined him, and aside from Dr Deshpande, the doctors have accepted the complaints as being genuine and reasonable. It is even Dr Reiter's opinion that he should be referred to a pain specialist for potential extensive treatment, and that he is only fit for work with significant restrictions.
I do not accept Dr Deshpande’s opinion as it is now almost two years old, and therefore does not take into account the ongoing symptoms experienced by the applicant in that period. It is also inconsistent with the medical evidence of the other doctors who have examined the applicant since.
Since 17 April 2020, the effects of the injuries sustained by the applicant (both the personal injury pursuant to s 4(a) of the 1987 Act and the disease injury pursuant to s 4(b)(ii) of the 1987 Act) have persisted. His neck symptoms are however much less severe than his back symptoms, and according to Dr Ho are “not major”.
It is not clear as to the responsibility of each injury for the applicant’s current symptoms. Dr Ho and Associate Professor Reid refer to the symptoms as being due to the disease injury, whereas Associate Professor Jaeger only refers to the “work injury” on 17 April 2020.
I believe it is fair to conclude that both injuries still play some part (albeit potentially only a small part in relation to the personal injury, having regard to the opinions of Dr Ho and Associate Professor Reid) in the current level of the applicant’s incapacity.
I have already rejected Dr Reiter’s opinion that the applicant “possibly’ exacerbated his degenerative disease temporarily on 17 April 2020, but “probably” did not exacerbate it. Her opinion that any exacerbation has ceased not only conflicts with the opinions of Dr Ho and Associate Professor Reid, but it seriously conflicts with the position that I have accepted regarding the applicant’s lack of neck and back symptoms for many years prior to 17 April 2020, compared with his consistent and persistent symptoms in this regard since.
In those circumstances, I attribute the applicant’s significant ongoing neck and back symptoms to his work injuries.
These symptoms have caused him, and continue to cause him an incapacity for work. He is entitled to weekly compensation in relation to this incapacity pursuant to s 37 of the 1987 Act.
Section 37 provides as follows:
“(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 80% of the worker's pre-injury average weekly earnings.
(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 lesser of the following rates--
(a) 95% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
(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 lesser of the following rates--
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.”
It is therefore important to determine whether the applicant has current work capacity.
Clause 9(1) of Schedule 3 to the 1987 Act provides:
“An injured worker has ‘current work capacity’ if the worker has a present inability arising from the injury such that the worker is able to return to the worker's pre-injury employment, or is able to return to work in suitable employment, but the weekly amount that the worker has the capacity to earn in any such employment is less than the weekly amount that the worker had the capacity to earn in that employment immediately before the injury.”
Section 32A of the 1987 Act provides the definition of suitable employment as follows:
“‘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 an 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 of residence.”
Dr Ho does not believe that the applicant is totally unfit for any work. However (see paragraph 48 above), he needs to change the nature of his work so that it does not involve repeated standing and twisting movements, or heavy lifting. The doctor concludes:
“He has to look for suitable duties work and probably re training in other areas will be necessary.”
Associate Professor Reid does not specifically opine regarding the applicant’s work capacity. He does however advise (see paragraph 39 above) that the applicant should avoid “manual tasks that exacerbate his pain”.
Associate Professor Jaeger agrees with Dr Ho (see paragraph 37 above) that the applicant needs to look into a career change in order to avoid manual labour.
Dr Kalla (see paragraph 33 above) also agrees that the applicant needs re-training and a change of career – it is not possible for him to return to work with the respondent and he is limited to “light duties” in an office-based environment with minimal lifting and ergonomic seating.
In her initial report (see paragraph 57 above), Dr Reiter believed that the applicant would be fit to return to work four hours per day, three days per week, as long as he was able to sit and stand as required. Without examining him again however, she changed her opinion in a later report (see paragraph 66 above) and now believes that he is fit for suitable full-time duties with a 10kg lifting restriction.
The combined effect of this evidence is clear. The applicant is unfit to return to his pre—injury employment with the respondent.
It is also in my opinion highly relevant to note that the respondent itself does not consider the applicant to be fit for his pre-injury employment. I find that to be the clear effect of its termination letter to the applicant dated 6 October 2021. In my opinion, the respondent is in the best position to understand what the requirements of the pre-injury employment are, and faced with medical evidence (not specifically disclosed by the letter however), it formed the conclusion that the applicant was “unable to perform the duties for which you are employed and your absence is no longer considered temporary”.
Consideration now has to be given as to whether the applicant is fit for suitable employment within the definition prescribed in s 32A of the 1987 Act.
The applicant relies upon the authority of Wollongong Nursing Home Pty Limited v Dewar [2014] NSWWCCPD 55 (Dewar), and submits that there is no evidence before the Commission of a “real job” that he “would be currently fit and qualified for, and be expected to secure and retain”.
In Dewar, Deputy President Roche discussed section 32A:
“58. However, while the new definition of suitable employment has eliminated the geographical labour market from consideration, it has not eliminated the fact that ‘suitable employment’ must be determined by reference to what the worker is physically (and psychologically) capable of doing, having regard to the worker’s ‘inability arising from an injury’. Suitable employment means ‘employment in work for which the worker is currently suited’ (emphasis added).
59. The word ‘employment’ is not defined in the legislation. Its common meaning is ‘the state of being employed’. However, ‘worker’ is defined. It means, subject to specified exclusions, ‘a person who has entered into or works under a contract of service or a training contract with an employer’ (s 4 of the 1998 Act). In context, the phrase ‘employment in work’, in the definition of suitable employment, ‘in relation to a worker’, must refer to real work in the labour market. That is, it must refer to a real job in employment for which the worker is suited.
60. Therefore, the determination of whether a worker is ‘able to return to work in suitable employment’ is not a totally theoretical or academic exercise and Mason P’s reference to the ‘eye of the needle’ test may still be relevant in many cases. To use his Honour’s example, a labourer who is rendered a quadriplegic may well be able to perform tasks using only his voice. However, whether, under the new provisions, he or she would be found to have no current work capacity will depend on a realistic assessment of the matters listed at (a) and (b) of the definition of suitable employment. Depending on the evidence, it is difficult to see that work tasks that are totally artificial, because they have been made up in order to comply with an employer’s obligations to provide suitable work under s 49 of the 1998 Act, and do not exist in any labour market in Australia, will be suitable employment.”
and:
“63. Thus, the task requires the identification of whether there are any ‘real jobs’ (Giankos v SPC Ardmona Operations Ltd[2011] VSCA 121 at [102]) which, having regard to the matters in sub-s (a) of the definition, the worker is able to do, regardless of whether those jobs are ‘available’ (to the worker) or are ‘of a type or nature that is generally available in the employment market’.”
I have come to the conclusion that there are currently no “real jobs” that the applicant is able to do. He has taken the advice of his medical practitioners, and is re-training in order to find suitable employment. He expects to complete his TAFE course in this regard by March 2023, whereupon he will be hopefully able to perform the duties of a support worker. These duties would appear to me to be compatible with the type of work now recommended for him by Dr Ho and his other treating doctors.
In considering the matters prescribed in s 32A, the only evidence provided in relation to return to work planning or the provision of occupational rehabilitation services is the evidence from Prudence Rehab. That organisation was attempting to arrange for the applicant to perform suitable duties (once he was fit to do so) with the respondent. There is an email from it (page 5 of the respondent’s AALD) where it recommends to the respondent that it review the applicant’s capacity for work in order to determine whether any suitable duties can be offered to him. The recommendation was made as the applicant is said to have advised that he would be able to perform the duties of a hopper operator, bus driver, or gear store assistant. Leaving aside the probability that such duties would not comply with the type of work now recommended for the applicant by Dr Ho and his other treating doctors, the respondent has now terminated the applicant’s employment with it, and no “real job” therefore exists with it any more.
In relation to the applicant’s age, education, skills, and work experience, there is evidence that prior to commencing his employment on the waterfront, the applicant completed an apprenticeship in painting and decorating, and then worked casually as a delivery driver, shelf stacker, bar attendant, and courtesy bus driver.
In my opinion, the applicant is not fit to work in any of these pre-waterfront employments. None of them involve an office-based environment as suggested by Dr Kalla, and they would all involve either repeated standing, heavy lifting, or repeated twisting movements (all advised against by Dr Ho). Even delivery drivers and courtesy bus drivers are required to repeatedly bend and twist as they are constantly getting into and getting out of cars or buses.
Neither party relies on any evidence from a vocational expert. In those circumstances, it is for me to use common knowledge or experience to determine whether any of the applicant’s pre-waterfront employments would involve duties that Dr Ho has advised the applicant to avoid. As Deputy President Snell recently observed in ACW v ACX [2020] NSWPICPD 19 applying Tubemakers of Australia Ltd v Fernandez [1976] 50 ALJR 720:
“109. A fact finder is entitled to make commonsense findings, provided these are ‘within the realm of common knowledge or experience’”.
The respondent’s submission as to the work that the applicant would now be capable of (see paragraph 86 above) fails to take into account Dr Ho’s opinion (which I have accepted) as to the work that the applicant needs to avoid. I however do accept the submission regarding the capacity that the applicant has shown to undertake his TAFE course. There is though currently no “real job” that he is able to do in this regard until he has completed the course.
Finally it is relevant to note that Dr Kalla has issued certificates of capacity certifying the applicant as having no current work capacity since 17 September 2021. Prior to that date he had issued a certificate of capacity certifying the applicant as fit for work with considerable restrictions. I find the restrictions mentioned in this certificate to be consistent with the restrictions imposed upon the applicant’s capacity for employment by Dr Ho, Associate Professor Reid, and Associate Professor Jaeger.
In summary, while it does not appear to me that the applicant is totally unfit for any work, taking into account the factors prescribed in s 32A of the 1987 Act, and also taking into account the medical and other evidence relied upon by the parties, I find that the applicant has discharged his onus of proving that he does not have current work capacity. He is entitled to an ongoing award of compensation pursuant to s 37(1) of the 1987 Act.
PIAWE
The parties have not agreed as to the correct calculation of the applicant’s PIAWE. However, neither party has provided me with sufficient documentation in order to be able to precisely calculate his earnings in the 52 weeks prior to 17 April 2020, as is required pursuant to cl 2(2) of Schedule 3 to the 1987 Act.
I intend to grant liberty to the parties to apply in this regard.
I otherwise find the applicant’s PIAWE to be $1,335.64.
I have calculated this amount by adding the year-to-date amount ($58,489.13) referred to in the applicant’s 23 April 2020 payslip as covering the 42 week period between 1 July 2019 and 19 April 2020, to 10 weeks of his average weekly earnings ($1,096.44) in the 2019 financial year (as evidenced by his PAYG payment summary for that financial year):
57015 (2019 financial year) / 52 = 1096.44
1096.44 x 10 = 10964.40
10964.40 + 58489.13 = 69453.53 / 52 = 1335.64
Section 60 expenses
Having accepted the evidence of Dr Ho, Associate Professor Reid, and Associate Professor Jaeger, I accept that the applicant still requires treatment for his work injuries. Dr Ho recommends "conservative" treatment, Associate Professor Reid recommends analgesia and physiotherapy, and Associate Professor Jaeger recommends analgesia and physiotherapy also.
In relation to the applicant’s past medical expenses, he has not provided any relevant documentation to the Commission. In his submissions, he requests that the Commission make a “general order” pursuant to s 60 of the 1987 Act.
Without evidence as to the applicant’s past medical expenses, and without evidence that he has made any claim for future medical expenses, I agree with the applicant that the appropriate order to make is that the respondent pay reasonably necessary medical expenses.
SUMMARY
I find that the applicant sustained a personal injury to his cervical and lumbar spines arising out of or in the course of his employment with the respondent on 17 April 2020, pursuant to s 4(a) of the 1987 Act. I find that the applicant's employment with the respondent was a substantial contributing factor to the personal injury pursuant to s 9A of the 1987 Act.
I find that as a result of the nature and conditions of the applicant's employment with the respondent, he has sustained a 'disease injury' pursuant to s 4(b)(ii) of the 1987 Act, being the aggravation, acceleration, exacerbation or deterioration of his cervical and lumbar spine degenerative disease in the course of his employment. I find that his employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
I find that the applicant has been incapacitated for work as a result of the personal injury and the ‘disease injury’ since 18 March 2021.
I find that since 18 March 2021, the applicant has had no current work capacity.
I find the applicant’s PIAWE to be $1,335.64.
I find that the applicant is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent.
There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act from 18 March 2021 to date and on a continuing basis, at the rate of $1,068.51 (as adjusted applying relevant indexing) per week.
Liberty to apply will be granted to the parties to approach the Commission regarding the calculation of the applicant’s PIAWE.
There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to section 60 of the 1987 Act.
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