Shah v Precision Valve Australia Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Shah v Precision Valve Australia Pty Ltd [2022] NSWPIC 450
APPLICANT:	Sanjaykuma Shah
RESPONDENT:	Precision Valve Australia Pty Ltd
Member:	Jacqueline Snell
DATE OF DECISION:	10 August 2022
CATCHWORDS:	WORKERS COMPENSATION - The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 (1987 Act) for injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) resulting from the nature and conditions of employment with the respondent; the respondent disputes the applicant sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) resulting from the nature and conditions of his employment with the respondent; the respondent disputes the deemed date of injury being the date the applicant made his claim for permanent impairment compensation and the respondent also raises defence under sections 254 and 261 of the Workplace Injury Management and Workers Compensation Act 1998; Held — the applicant sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulna nerve and right shoulder) as a result of the nature and conditions of his employment with the deemed date of injury being the date the applicant made his claim for permanent impairment compensation under section 66 of the 1987 Act; the applicant is not barred from recovery of permanent impairment compensation payable under section 66 of the 1987 Act.
determinations made:	The Commission determines: 1. The applicant sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) in the nature of an exacerbation of a disease injury as a result of the nature and conditions of his employment with the respondent. The applicant’s employment with the respondent was the main contributing factor to injury. 2. The deemed date of injury for the applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from the injuries the applicant sustained to his lumbar spine, cervical spine and right supper extremity (right ulnar nerve and right shoulder) is 20 December 2021. 3. Section 254(1) of the Workplace Injury Management and Workers Compensation Act 1998 is not a bar to the recovery of any permanent impairment compensation that may be payable to the applicant under s 66 of the Workers Compensation Act 1987. 4. Section 261(1) of the Workplace Injury Management and Workers Compensation Act 1998 is not a bar to the recovery of any permanent impairment compensation that may be payable to the applicant under s 66 of the Workers Compensation Act 1987. 5. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury sustained to his lumbar spine, cervical spine, right upper extremity (right ulnar nerve and right shoulder) and scarring in the course of his employment with the respondent, with a deemed date of injury of 20 December 2021, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents.

STATEMENT OF REASONS

Background

The applicant, Sanjaykumar Shah (Mr Shah), was employed by the respondent, Precision Valve Australia Pty Ltd (Precision Valve), working as a process worker. Mr Shah commenced employment with Precision Valve in or about 2003. Mr Shah’s employment with Precision Valve was terminated in early 2015 after a long period of absence resulting from personal injury. Mr Shah is currently 57 years of age. Mr Shah has been in receipt of a Disability Pension since in or about April 2015.
Mr Shah claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) resulting from alleged injury to his cervical spine, lumbar spine, right upper extremity (right ulnar nerve and right shoulder) and scarring. Mr Shah alleges he sustained these injuries in the course of his employment with Precision Valve as a result of the nature and conditions of his employment between in or about 2003 and
5 March 2014. Mr Shah alleges a deemed date of injury of 20 December 2021, being the date he made his claim for permanent impairment compensation.
Mr Shah’s claim for permanent impairment compensation is declined and he has been issued with a number of notices in which he has been advised that alleged injury to his cervical spine, lumbar spine and right upper extremity is disputed by Precision Valve. The notices are dated 21 June 2021[1], 7 December 2021[2] and 28 April 2022[3]. In essence, Precision Valve disputes Mr Shah sustained injury to his cervical spine, lumbar spine and right upper extremity in the course of his employment with Precision Valve as alleged. Precision Valve disputes the alleged date of injury of 20 December 2021. Precision Valve also raises defence available under s 254 and s 261 of the Workplace Injury Management and Workers Compensation Act 1998 Act (1998 Act) in that Precision Valve submits Mr Shah is barred from recovering compensation benefits payable under the 1987 Act as he failed to give notice of injury within the prescribed time frame and failed to make his claim for compensation within the prescribed time frame.
[1] Application to Resolve a Dispute (ARD) at page 42.
[2] ARD at page 50.
[3] ARD at page 58.

Issues for determination

The parties agree that the following issues remain in dispute:
(a)    whether Mr Shah sustained injury to his cervical spine in the course of his employment as a result of the nature and conditions of his employment;
(b)    whether Mr Shah sustained injury to his lumbar spine in the course of his employment as a result of the nature and conditions of his employment;
(c)    whether Mr Shah sustained injury to his right upper extremity (right shoulder and right ulnar nerve) in the course of his employment as a result of the nature and conditions of his employment;
(d)    the date of injury for the purposes of Mr Shah’s claim for permanent impairment compensation;
(e)    the level of percentage whole person impairment Mr Shah has sustained resulting from injury he sustained in the course of his employment, and
(f)    whether Mr Shah is barred from recovering compensation benefits as he failed to give notice of injury and failed to make his claim for compensation within the prescribed time frame.

Procedure before the Personal Injury Commission (the Commission)

The parties attended a teleconference on 2 June 2022. Mr Walker appeared for Mr Shah and Ms Brown appeared for Precision Valve. Mr Shah was present.
With Mr Shah’s claim unresolved at teleconference, the parties attended a conciliation conference/arbitration hearing on 4 July 2022. Mr Beran of counsel appeared for Mr Shah instructed by Mr Covic. Mr Morgan of counsel appeared for Precision Valve instructed by
Ms Brown. Ms Radley and Ms Patterson, representatives from EML were present. Mr Shah was present.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

Evidence

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD), and
(b) Reply and attached documents.

Oral evidence

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

Findings and reasons

Brief review of evidence

Statement of Mr Shah

10.Mr Shah has provided a lengthy statement dated 22 November 2021 to which are annexed a number of email exchanges between Mr Shah and Precision Valve during 2014[4].
[4] ARD at page 1.
11.Mr Shah explained that while he was initially employed with Precision Valve in 2003 on a casual basis, he became employed on a fulltime basis in or about 2004. Mr Shah explained he worked in the role of Production Process Machine Operator/Technician between about 2003 and 2008. He said in this role his general duties included:
“a.     quality inspection, measuring and recording
b.     operating machines and responding to alarms
c.     responsible for no of machines: 4
d.     general troubleshooting and maintaining machine processes
e.     product box making, labelling, stacking and moving from conveyor to pallet
f.      isolation and recording of rejected material
g.     material transportation (either via electric jack or manually via jack)
h.     continuous checking of components and products visually and under microscope for quality control (on QC worksheet)
i.       cleaning of work areas.”

12.Mr Shah said that in about 2008/2009 “there began to be major changes to his duties and workload”. He explained that at about that time he was put on a machine for a new product. He described this machine (named “Bikini”) as being a “multistationed, multi component, continuous assembly machine with integrated moulding”. Mr Shah said the machine was not running successfully and after a couple of weeks of being in his new role he told his supervisor the machine was “hard to operate” and he wanted other operators to rotate onto the machine also. Mr Shah said when this occurred, the other operators “would share the same frustrations that I would”. Mr Shah said he continued to work on the machine over the next year or so with “repetitive bending and twisting of his back, lower back especially was experience daily”.
13.Mr Shah said with the Bikini performing slightly better in 2009 “due to ongoing improvements and my role in actively learning ongoing problems” a “new track assembly TA3 & moulding machine B07 was assigned to him”. He said that in about 2010, in addition to the machines he was already working, “the Inserts Assembly Machine” was assigned to him. This meant that by 2010 Mr Shah had been working on four machines, which “involved not only operating and maintaining the machine but also packing, quality and inspection”. Mr Shah explained:
“I remember being very busy answering alarms of all these machines and lines. I would be even busier when there was a job change which required additional work to be performed. I was exhausted by the end of every shift. I remember having to take general painkillers to help with body pains due to this additional work. There was on and off body discomfort during night-time after work.”

14.Mr Shah said his workload increased again in about 2011 when he was assigned the Gasket Flattner machine, which was also a manual feeding machine. He said the feeding tubs for the machine were heavier than average and weighed approximately 15 – 20 kg. Mr Shah said he was now handling five machines and “was getting even more tired and exhausted by the end of my shifts every day”. He said:
“The nature and conditions of my every day work were very heavy and arduous. It was repetitive work with lots of repetitive bending, lifting and carrying.”

15.Mr Shah said that in or about May 2012 he experienced pain in his knees, neck and back, with his knee pain being most problematic at that time. Mr Shah consulted with his general practitioner, Dr Tun, and was referred for orthopaedic review with Dr Maniam, with referral for physiotherapy treatment.
16.While Dr Tun asked Mr Shah if he “was interested in going through the workers compensation process”, Mr Shah said:
“I did not want to go through the workers compensation process because I was scared about the employer treating me unfairly and being mean to me. I was very depressed and in constant pain and I did not want to go down that path. I wanted to try and go back to normal life and not cause any trouble for my employer. I was a long time worker there and so I had a lot of leave available to me and so I thought that would be more than enough.”

17.With significant deterioration in his back pain in or about June 2012, Mr Shah returned to
Dr Maniam, with referral for MRI diagnostic imaging and physiotherapy treatment.
18.Mr Shah said that during this time he continued to work his usual work duties, which he described as a “high workload” and in about July and August 2013 he experienced increasing pain in his right shoulder and neck. He said he “had increasing difficulty in performing my very demanding duties and my neck and shoulder pain continued to get worse”.
19.Mr Shah was referred for orthopaedic review with Dr Dave, with referral for MRI diagnostic imaging of his cervical spine and review by Dr Gray, spinal surgeon, who advised against surgical intervention. Mr Shah returned for review with Dr Dave and ultimately came to right ulnar nerve release surgery under his care on 17 September 2013.
20.Mr Shah explained:
“Being someone who is non-confrontational and scared for my job (I had a mortgage and I am the sole provider for my family), and there was no distinct incident that suddenly caused this (this was a developing issue), I did not report any of this as a work related injury to Precision Valve. I was hoping to recover through this myself and I was hoping to go back to work as soon as possible. I was very much scared of doing a workers compensation claim because I was scared of losing my job.”

21.However, Mr Shah also said:
“I tried once to lodge a claim through my union. I went there to the office with my wife. This was in around 2013. They showed me the procedure and I was so scared about lodging the claim. I was in a psychological mess because of the pain and the worries. I thought it was going to be a struggle. I did not want to have this extra stress because my pain level was so high and I didn’t want the added stress. They did not tell that there were timeframes to lodge a claim.”

22.Following recovery from his ulnar release surgery and rehabilitation, Mr Shah returned to suitable duties on 22 October 2013 before resuming his normal duties, which he described as “very busy and intense work”.
23.Mr Shah said he subsequently experienced an increase in his back pain and he returned for review with Dr Gray on 11 February 2014, with referral for MRI diagnostic imaging and subsequent cortisone injections into this lumbar spine, rest and physiotherapy treatment.
24.Mr Shah attempted to return to work on 3 March 2014 after experiencing “an incredible amount of pain during work” on 5 March 2014, he ceased work and commenced a period of sick leave and annual leave.
25.With Dr Gray recommending surgical treatment in the nature of a fusion at L5/S1, Mr Shah obtained second opinion from Dr Bentivoglio, neurosurgeon, who “did not think surgery was essential at that time”. In around April 2014 Mr Shah obtained further opinion from Dr Kam, neurosurgeon, who “suggested I go for a discogram”, which Mr Shah said had been described to him as a very painful procedure. On 6 May 2014 Mr Shah consulted with
Dr Hsu, spinal surgeon, who recommended surgical treatment in the nature of L5-S1. However, Mr Shah explained:
“I still did not want to lodge a claim because I was still scared of how I was going to be treated if I did, but also I didn’t think there was a need to if I was going to improve after the surgery and be able to return to work.”

26.Mr Shah said while he was waiting for his surgical treatment, his low back pain intensified and on or about 18 May 2014 he attended the Emergency Department at Westmead Hospital and on or about 24 May 2014 he attended the Emergency Department at Norwest Private Hospital, the latter hospital being where Dr Hsu practised. Mr Shah said on 27 May 2014 he came to L5-S1 posterior decompression and interbody fusion under the care of Dr Hsu.
27.Mr Shah said he communicated with Precision Valve throughout 2014 regarding his medical situation and once he had exhausted his sick leave, annual leave and long service leave, Precision Valve provided him with leave in lieu while he recovered from his lumbar spine surgery.
28.Mr Shah said in or about November 2014 his right shoulder and neck pain returned and “it was worse than before in 2013”. He returned for review with Dr Hsu and was referred for MRI diagnostic imaging of his cervical spine. Mr Shah said in or about December 2014 he transferred his general medical care to Dr Patel in an effort to improve communication about his medical situation, and in January 2015 he was referred for MRI diagnostic imaging of his right shoulder. Mr Shah then returned for review with Dr Dave, with physiotherapy and injection therapy providing some relief.
29.On or about 15 January 2015 Mr Shah received a letter from Precision Valve in which he was advised he “was being let go because I had been on leave for too long and unable to resume my duties” and in or about March 2015 Mr Shah’s son assisted him to lodge an unfair dismissal claim against Precision Valve “because we thought that I could save my job and at least be given the opportunity to do some other suitable duties especially after my long service at Precision Valve”. In or about April 2015 Dr Hsu assisted Mr Shah obtain the Disability Pension.
30.Relevant to Mr Shah’s claim before the Commission, Mr Shah explained:
“In around February 2021, I was speaking to a friend of mine, Mr Richard Dass. Richard told me that he can get me in touch with Mr Steve Walker at Walker Law Group who specialises in workers compensation cases … I then got in touch with Mr Steve Walker at Walker Law Group. He told me that I need to go and get a certificate of capacity. I did this. I went to go and see my GP Dr Patel who gave me a certificate of capacity. I then went back to go and see Steve Walker who lodged a claim on my behalf.
Nobody ever told me about there being timeframes for lodging a claim for workers compensation. Only once I sought legal advice for the first time from Steve Walker did he tell me that there are in fact timeframes and that I need to straight away get a certificate and he can help me lodge the claim. He then helped me lodge the claim.
At the time I first started seeking medical treatment, I was scared of losing my job and I did not want to report the injury to my boss as a work-related injury. I had an idea in my head that if I told the boss of a work-injury, he wouldn’t treat me good and would fire me. Initially, I thought it wasn’t anything serious. I did not understand the law and did not know that there were timeframes for lodging a claim for workers compensation…”

31.Attached to Mr Shah’s statement is email correspondence between him and Precision Valve during the period 10 March 2014 and 16 September 2014 that is relevant to Mr Shah’s leave applications consequent on his health issues and a possible return to suitable duties with Precision Valve. There is also email correspondence dated 1 April 2014 from Precision Valve to Mr Shah that is relevant to an approach by the Union to discuss Mr Shah’s situation.
Claim for permanent impairment compensation
32.Under cover of letter dated 20 December 2021 from his solicitors, Mr Shah made a claim for permanent impairment compensation payable under s 66 of the 1987 Act.
Factual report
33.Insight Intelligence Group prepared a factual report dated 30 April 2021[5] that is in evidence. In summary, the investigator confirmed Mr Shah worked with Precision Valve as a production technician between approximately 2004 and 2015, with Mr Shah’s employment terminated after he took extended leave for approximately one year due to physical injury, which Precision Valve denies was work-related.

[5] Reply at page 1.
34.Sossio Capasso, Production Manager and Toolroom Manager with Precision Valve, provided a statement taken on 22 April 2021 in which he confirmed he has worked with Precision Valve for 11 years and provided information regarding Mr Shah’s work duties. In essence, Mr Capasso denied allegations made by Mr Shah that he sustained injury due to the nature and conditions of his employment with Precision Valve in that Mr Capasso provided information there is minimal bending or twisting required as most work duties are done at chest height and there is no manual handling of the machines Mr Shah was required to work on. Mr Capasso indicated Mr Shah’s work duties were not as physically laborious as alleged.
35.Lillianne Leonardi, Human Resources Business Partner, provided a statement taken on 8 April 2021. However it was Ray Miles who was the Human Resources Manager with Precision Valve at the time Mr Shah worked with Precision Valve and it was Mr Miles who was involved with the management of Mr Shah during his lengthy absence from work due to physical injury and the consequent termination of his employment with Precision Valve.
Treating medical evidence

Wentworthville Medical & Dental Centre

36.Mr Shah had come under the general medical care of the doctors practising out of Wentworthville Medical & Dental Centre in early 2004 and the clinical records of the medical practice[6] are in evidence.
[6] ARD commencing at page 220.
37.As early as 17 March 2004 Dr Tun noted:
“LBP worsened yesterday
Long standing back pain, 4 years, changed to a new section last 2 weeks ago – process worker.”

At that time Mr Shah was prescribed anti-inflammatory medication and certified unfit for work.
38.Dr Tun continued to note not infrequent episodes of “recurrent LBP” and “ongoing LBP” throughout 2007, 2008 and 2009, with prescription provided for anti-inflammatory and analgesic medication, referral for diagnostic imaging, referral for physiotherapy treatment and certification for unfitness for work.
39.Dr Tun noted on 21 June 2011 that Mr Shah presented with relevant complaint of “insomnia for 2 days from back pain – fixing machine in the office last week which started symptoms” and Dr Tun provided prescription for anti-inflammatory and analgesic medication and certification for unfitness for work.
40.Dr Tun noted on 17 January 2012 that Mr Shah continued to suffer ongoing low back pain which interfered with his sleep and Dr Tun provided prescription for analgesic medication and referral for physiotherapy treatment. On review on 25 May 2012, Dr Renigeris noted “back pains – periodic, very active week, back strain causes trouble sleeping”. Dr Renigeris provided prescription for analgesic medication and certification for unfitness for work. Dr Tun noted on 14 September 2012 that Mr Shah presented with “worsening right shoulder pain and unable to sleep” Dr Tun provided prescription for analgesic medication and certification for unfitness for work.
41.Dr Tun noted on 8 February 2013 that Mr Shah presented on this occasion with complaint of “aches/pain in the body” that he thinks is “probably due to hard work”. Dr Tun provided certification for unfitness for work the day. Dr Tun noted on 22 August 2013 that Mr Shah presented with “worsening rt shoulder symptoms after doing physical works with right arm”. Dr Tun provided prescription for analgesic and anti-inflammatory medication. When Mr Shah re-presented on 27 August 2013 with complaint of right shoulder symptoms Dr Tun relevantly made reference to Mr Shah’s “home and work situations significantly changed and needs further treatment under team care arrangements. Deteriorating physical and psychological symptoms since last review under EPC program”. Dr Tun referred Mr Shah for diagnostic imaging and physiotherapy treatment. Dr Tun noted Mr Shah was unable to work on
29 August 2013 “due to worsening pain”. Dr Zhuang noted Mr Shah was unable to work on 30 August 2013 with complaint of “pain worsening in the left shoulder, was doing carrying and lifting at work, now stopped, also had pain on the left neck down to the arm”. Dr Tun also noted Mr Shah was unable to work on 30 August 2013 “due to worsening pain” and again on 2 September 2013 due to “symptoms from right shoulder, right elbow and right wrist”. On this occasion Mr Shah was referred for diagnostic imaging, review by Dr Maniam and certified unfit for work. Dr Zheng noted on 3 September 2013 that while Mr Shah’s shoulder pain “is better” he was relevantly experiencing severe pain in his cervical spine “and also down to the hand”. Dr Tun noted on 4 September 2013 that Mr Shah’s right shoulder, right elbow and right wrist remained symptomatic and he was to be reviewed by Dr Dave that day. Dr Tun noted on 13 September 2013 that Mr Shah remained symptomatic, had ceased physiotherapy treatment on the advice of Dr Dave and was to undergo MRI scanning. On
17 September 2013 Dr Tun noted Mr Shah had come to “nerve release operation” but was “still in pain”. On 21 September 2013 Dr Tun said of Mr Shah “pain settled with medications” with wounds healing well. On 30 September 2013 Dr Tun noted Mr Shah “still has weakness and some P&N of the hand and finger, neck is not much pain”. However, on 8 October 2013 Dr Tun noted Mr Shah was to consult with Dr Gray about his neck pain with complaint that while his elbow was “getting stronger, now has neck pain on the right – flexion of the neck causing P&N down at the hand”. On 14 October 2013
Dr Zhuang noted “Both the neck and arm are improving day by day, getting stronger”.
42.It is evident that throughout 2014 Mr Shah continued to consult with the doctors practising out of the medical practice, predominantly with Dr Tun, with complaint of lumbar spine pain, cervical spine and right shoulder pain. It is also evident Mr Shah continued to be certified incapacitated for work, was referred for physiotherapy treatment with Mr Shilson-josling, was referred for specialist review with Dr Maniam, Dr Gray, Dr Bentivoglio, Dr Kam and Dr Hsu, and came to surgical treatment of his lumbar spine under the care of Dr Hsu on
27 May 2014, with initial relief of his lumbar spine pain. On 1 December 2014 while Dr Tun noted Mr Shah was “reducing dose of Endone and coping fine” he noted “worsening right shoulder symptoms right handed person who did lawn mowing/trimming 1 week ago” and referred Mr Shah for diagnostic imaging and prescribed him with anti-inflammatory and analgesic medication. Mr Shah continued to consult with Dr Tan relevant to his worsening right shoulder symptoms until the end of the year, with Mr Shah’s last recorded consultation at the medical practice occurring on 23 December 2014.
Well Health Hub
43.In late 2014 Mr Shah came under the general medical care of Dr Patel who practises out of Well Health Hub and the clinical records of the medical practice are in evidence[7]. When
Mr Shah came under the care of Dr Patel on 5 December 2014 Dr Patel relevantly noted:
[7] ARD at page 348.
“h/o severe right shoulder pain – previous usg-tendon tear
cervical pain-radiating to right arm upto hand
previous decompression ulner nerve
…
lower back pain – spinal fusion
now chronic pain… ”

44.It is evident Mr Shah continued to present to Dr Patel throughout 2015, 2016, 2017, 2018, 2019, 2020, 2021 for pain management of his symptoms, which significantly troubled him, and on 25 February 2021 Dr Patel noted:
“requesting for work cover certificate regarding ongoing pain
Started neck-lower back & arm pain from work due to repetitive bending from neck & back & lifting at work
was bending up to 2000 times in one day
had complained to supervisor about pain while working but no one guided regarding work cover & treatment
was unaware of work cover benefits in past
feels that work never guided to obtain treatment under w/c even though he had communicated with work about pain
strong possibility of current problem due to work related injury
certificate was provided as per history provided.”

Dr Maniam
45.Mr Shah was initially referred to Dr Maniam for specialist care due to bilateral knee pain. A number of reports prepared by Dr Maniam[8] are in evidence. At the time of his initial consultation on 21 April 2012 Dr Maniam noted Mr Shah worked as a process worker and the prolonged standing required of him aggravated his bilateral knee pain. Dr Maniam made reference at that time to the possibility that Mr Shah’s problems “may be occupational and due to overuse”. In a report dated 21 September 2012 Dr Maniam confirmed he had reviewed Mr Shah on 30 May 2012 “for chronic lumbar spine pain”, which he recommended be managed conservatively “at this stage” following review of MRI diagnostic imaging.
[8] ARD commencing at page 100.
Dr Dave
46.Mr Shah was also initially referred to Dr Dave for specialist care due to bilateral knee pain on or about 2 August 2012. A number of reports prepared by Dr Dave[9] are in evidence.
Mr Shah was re-referred to Dr Dave due to ulnar neuritis symptoms on or about
4 September 2013, with Dr Dave describing Mr Shah as having suffered “florid nerve neuritis symptoms for the last 3.5 weeks” which he said, “may have been related to his pervious neck and shoulder problems where he needed to hold his arm still for a while”. Dr Dave said,
“Mr Shah almost certainly has ulnar nerve compression at the elbow rather than the cervical spine” and referred Mr Shah for nerve conduction testing, which was ultimately “not helpful in locating the source of his ulnar nerve entrapment”. At consultation Dr Dave described
Mr Shah as having “full movement of the cervical spine and shoulder without any pain”. However, at consultation on 11 September 2013 Dr Dave relevantly noted Mr Shah was now complaining of shoulder pain. Mr Shah ultimately came to surgical treatment in the nature of right medial humeral epicondylectom/ulna neurolysis on 17 September 2013 under the care of Dr Dave, with significant relief.
[9] ARD commencing at page 105.
47.In a postsurgical report dated 27 September 2013 Dr Dave confirmed:
“We did arrange for an MRI scan of the cervical spine and brachial plexus and this does show a large disc protrusion at the C/T1 region which may account for some of the numbness and paraesthesia.”

48.Dr Dave referred Mr Shah for specialist review by Dr Gray relevant to his cervical spine.

Dr Gray

49.Mr Shah initially came under the specialist care of Dr Gray due to his cervical spine symptoms on or about 10 October 2013. A number of reports prepared by Dr Gray[10] are in evidence. In his initial report Dr Gray provided diagnosis of cervical spondylosis and “in the absence of any significant radicular type symptoms” Dr Gray recommended conservative management.
[10] ARD commencing at page 115.
50.Mr Shah was re-referred to Dr Gray on 3 February 2014 due to “low back pain from lifting heavy objects, no shooting pain to both legs” with Dr Gray reporting on 14 February 2014 that he had arranged for nerve root blocks, with only limited relief. On review on
25 March 2014 Dr Gray described Mr Shah as receiving physiotherapy treatment and explained the options available to Mr Shah were:
“… to continue with current conservative options of activity modification, a change in his occupation and optimising of his analgesic medication.”

51.However, Dr Gray cautioned:
“If he reaches the point where, in spite of all conservative measures, the ongoing symptoms are significantly affecting his activities of daily living and quality of life then surgery can be given due consideration.”

52.The surgical treatment contemplated by Dr Gray at that time was in the nature of an L5/S1 interbody fusion and on review on 16 April 2014, with Mr Shah reporting “he has been experiencing unbearable pain at most times and has been unable to return to work” Mr Shah indicated he was keen to pursue the contemplated surgical treatment.

Dr Peter Bentivoglio

53.Mr Shah subsequently sought opinion from Dr Bentivoglio. Dr Bentivoglio is a neurosurgeon. A number of Dr Bentivoglio’s reports[11] are in evidence. In his initial report dated 1 April 2014 following his review of Mr Shah the day before, Dr Bentivoglio described Mr Shah as:
[11] ARD commencing at page 130.
“a gentleman with a 2 month history of a flare up of low back pain on the background history of intermittent back pain for the last 3 years.”

54.At the time of initial review Dr Bentivoglio recommended Mr Shah continue with conservative treatment. Dr Bentivoglio said:
“He needs to have 2 months of physiotherapy in the form of core strengthening exercises, stretching exercises, gentle mobilising exercises to his back, and hydrotherapy. He is not to work for a month. He is to avoid heavy lifting, repetitive bending and twisting.”

55.Dr Bentivoglio provided opinion:
“I do believe the work Mr Shah performs is a significant contributing factor to his mechanical back pain. He needs to avoid lifting more than 15kg, and avoid repetitive bending which could be difficult with the work he performs.”

56.Mr Shah was subsequently assessed by Dr Bentivoglio at the request of Mr Shah’s solicitors. Dr Bentivoglio provided a report dated 21 June 2021[12] following his assessment of Mr Shah on 11 May 2021. Dr Bentivoglio reported Mr Shah told him:
[12] ARD at page 63.
“Because of the nature of his work and the increased workload, having to control four assembly lines and two moulding machines, he started to develop knee pain in 2012. He also had neck pain and back pain…
In June 2012, he started to develop back issues …
In August 2013, he developed neck and shoulder pain with numbness and weakness of his right arm …
In January 2014, he developed severe lower back pain …
In November 2014, he maintains his neck pain recurred …”

57.Following review of the diagnostic imaging made available to him and clinical examination, Dr Bentivoglio provided opinion:
“My working diagnosis of Mr Shah is a gentleman who has multilevel degenerative lumbar disease with neuropathic pain in his legs but no evidence of radiculopathy. He has had a previous L5/S1 fusion for severe degenerative disease. He also has multilevel degenerative cervical disease at C5/6, C6/7 and C7/T1 with foraminal compromise bilaterally. And he also has had a right ulnar neuropathy which has had surgery in the past.”

58.In response to specific questioning on causation, Dr Bentivoglio provided opinion relevant to his speciality as a neurosurgeon:
“He has multilevel degenerative disease which pre-existed his work injury but has been exacerbated by the work that he did dating back to September 2013. This resulted in him needing to have surgery to his lumbar spine and treatment for his cervical spine as well. I would agree that his work has been the main contributing factor to the aggravation of the degenerative disease both in his lumbar spine and cervical spine.”

Dr Hsu
59.Mr Shah came under the care of Dr Hsu, spinal surgeon, on 6 May 2014 and a number of his reports[13] are in evidence. Dr Hsu provided a detailed clinical note from his initial consultation with Mr Shah and recommended surgical treatment in the nature of L5-S1 and interbody fusion “as the last resort if Mr Shah feels he has exhausted non-operative treatment”. While Dr Hsu cautioned the surgical treatment “will not completely resolve all his back pain or indeed address any of his lower limb symptoms” Dr Hsu felt it may provide Mr Shah with significant symptomatic relief. Mr Shah ultimately came to the recommended surgical treatment on 27 May 2014 under the care of Dr Hsu.
[13] ARD commencing at 144.
60.On review on 24 December 2014 Dr Hsu reported Mr Shah “recently had some cervical symptoms” and on 30 January 2015 Dr Hsu said of Mr Shah “recently he has been experiencing some shoulder pain…”. Mr Shah continued to consult with Dr Hsu relevant to his back and on review on 9 September 2016, Dr Hsu reported increasing symptoms “in the back and leg” and on 2 July 2018 Dr Hsu said of Mr Shah “he has been doing well until the last six or so months when he has been experiencing some increasing back pain symptoms with radiating pain down into the lower limbs”. On review on 5 September 2018 Dr Hsu reported he had referred Mr Shah for chronic management team review. At a telehealth consultation on 27 August 2020 Dr Hsu said of Mr Shah “in the recent months he has had increasing neck pain and back pain and also upper and lower limb symptoms” and following telehealth consultation on 17 September 2020 Dr Hsu reported he had recommended review by a pain management specialist. At follow up on 8 October 2020 Dr Hsu reported “at this stage we will persist with simple non-operative treatments first and I plan to review him if his non-operative plan fails”.
Dr Kam
61.Mr Shah came under the specialist care of Dr Kam, neurosurgeon, and his report dated 19 December 2018[14] is in evidence. While at the time of reporting, Mr Shah had been referred to Dr Kam for second opinion, Dr Kam confirmed Mr Shah had previously been consulted with him “nearly 4 years ago for his back problems” for which Mr Shah had eventually come to surgical treatment in 2014 under the care of Dr Hsu, with ongoing symptoms. Dr Kam expressed opinion on this occasion he was usure as to the cause of Mr Shah’s symptoms and referred him for pain review.
[14] ARD at page
Westmead Hospital
62.Mr Shah was referred for multidisciplinary pain management with Westmead Hospital and a multidisciplinary report relevant to his program during the period 9 February 2015 and
2 March 2015[15] is in evidence. At pre-program medical assessment on 30 January 2015
Mr Shah presented with a one year history of lower back pain, which was particularly severe in February 2014 and resulted in him ceasing work. A history of right ulnar nerve surgery in 2013 was also noted. Mr Shah’s other complaints at assessment relevantly included neck pain and also right shoulder pain, reportedly present since 2013.
[15] ARD at page 175.
St George Private Hospital
63.With Mr Shah’s low back remaining significantly symptomatic despite coming to surgical treatment under the care of Dr Hsu, Mr Shah was referred for orthopaedic review with
Dr Diwan, spinal surgeon, and his reports dated 13 May 2015 and 1 June 2015[16] are in evidence. Dr Diwan relevantly noted on initial review that Mr Shah’s presenting complaints included “lumbar pain diffuse” and “some right shoulder pain”. Dr Diwan provided opinion there was “no role for further surgical intervention” in so far as Mr Shah’s low back injury was concerned and discharged him into the care of Special Spinal Rehab.
[16] ARD commencing at page 183.
Independent medical evidence
Dr Sheehy
64.Dr Sheehy assessed Mr Shah in his capacity as independent medical examiner. Dr Sheehy is a neurosurgeon. Dr Sheehy provided reports dated 6 May 2021[17] and 4 November 2021[18].
[17] Reply at page 196.
[18] Reply at page 201.
65.In his initial report Dr Sheehy said of Mr Shah:
“He told me of his work with Precision Valve Australia Pty Ltd. His employment commenced in 2003. His duties were as a machinist with that company. The conditions of employment changed in 2008 and he was required to undertake a lot of bending and twisting in the manufacturing of aerosol caps for Unilever.
He developed, while doing this activity, neck pain and right shoulder pain and started dropping things with his hand. He was referred to an orthopaedic surgeon and had an ulnar nerve release and investigations of his cervical spine revealing a problem with the T1 nerve root…
He returned to work in 2013. He was working normal duties with the development of low back pain by February 2014.”

66.Following clinical examination and review of the diagnostic imaging made available to him, in response to specific questioning Dr Sheehy provided opinion:

“He sustained aggravation of an underlying cervical spondylosis and an aggravation of a degenerative change at the lumbar spine affecting the L5/S1 segment. The aggravations occurred in the course of his employment in 2013 and 2014 respectively.”

67.In response to specific questioning on causation Dr Sheehy said:
“His employment with Precision Valve is a substantial contributor to the development of his compensable injuries affecting his cervical and lumbar spine.”

68.In his later report, Dr Sheehy confirmed he had reviewed his earlier report and following clinical examination on this occasion relevant to very specific questioning as to the issue of causation, Dr Sheehy responded:
“Causation is likely to require a judicial decision. He claims to have been injured in the way described in the body of the report, yet there are disputes in the client’s file concerning whether the injury could have occurred in this way and there is also the issue that there was seven years delay in the worker bringing the claim for compensation. There is no documentation held by the insurer in relation to the alleged work-related injury.
I am unable to determine causation for the reported reasons.”

Dr Herald
69.Mr Shah was assessed by Dr Herald in his capacity as independent medical examiner.
Dr Herald is an orthopaedic surgeon. Dr Herald provided a report dated 9 December 2021[19] following his assessment of Mr Shah the day before. Dr Herald recorded a detailed history of the nature and conditions of Mr Shah’s work with Precision Valve between 2003 and 2014, and noted Mr Shah was now retired.
[19] ARD at page 71.
70.Dr Herald described Mr Shah as first experiencing back pain after working on the Bikini machine, about which Mr Shah said he had notified his supervisor. Dr Herald said of
Mr Shah:
“By 2010 he was exhausted and his increased workload required him to take painkillers daily to help with his body pain … He now had five machines to manage and he was getting bilateral knee pain, neck pain and right shoulder pain.”

71.Dr Herald noted Mr Shah sought general medical treatment in May 2012, and with referral to a number of specialists over time, Mr Shah came to ulnar release surgical treatment under the care of Dr Dave and L5/S1 posterior decompression interbody fusion on 27 May 2014 under the care of Dr Hsu.
72.Following clinical examination and review of the diagnostic imaging made available to him, Dr Herald relevantly provided diagnosis of right shoulder rotator cuff tear, which he said required an up to date MRI scan and possible arthroscopic rotator cuff repair surgery.
Dr Herald accepted Mr Shah’s right shoulder injury resulted from the nature and conditions of Mr Shah’s employment with Precision Valve.

Dr John Bentivoglio

73.Mr Shah was assessed by Dr Bentivoglio in his capacity as independent medical examiner. Dr Bentivoglio is an orthopaedic surgeon. Dr Bentivoglio provided a report dated
21 March 2022[20] and it is evident from his reporting Dr Bentivoglio was provided with a significant amount of information to assist him with the preparation of his report, including
Mr Shah’s statement, Dr Herald’s reporting, Dr Sheehy’s reporting, Dr Peter Bentivoglio’s reporting, an ultrasound report of the right shoulder dated 1 December 2014, an MRI report of the right shoulder dated 19 January 2015, and an MRI report of the right shoulder dated 15 November 2019.
[20] ARD at page 91.
74.Dr Bentivoglio said Mr Shah told him he had worked for a company for 11 years as a process worker and “his work activities were generally not heavy in nature”. Relevant to the injury
Mr Shah has sustained to his right shoulder, Dr Bentivoglio reported:
“This gentleman advised me in around 2013, he started to experience symptoms in his right shoulder. He was experiencing pain present over the anterior and posterior aspect of his shoulder. He did not have any injury to his shoulder.
…
This gentleman attributes the onset of his shoulder symptoms to the fact he was doing a lot of upper limb activities at work”

75.Following clinical examination and review of an MRI scan of the right shoulder dated
7 January 2015, which Dr Bentivoglio said demonstrated mild supraspinatus tendinosis with partial thickness tearing and some features of early capsulitis, Dr Bentivoglio provided opinion that in the absence of any specific injury to his shoulder he did not consider
Mr Shah’s employment was a substantial contributing factor to his shoulder injury.

Submissions
76.Mr Morgan and Mr Beran made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance provided to me in this matter. A recording a counsels’ submissions is available to the parties and their submissions are not reproduced here.

Determination

Injury

77.While in making his claim for compensation payable under the 1987 Act Mr Shah relevantly alleges the “nature and conditions” of his employment with Precision Valve as a process worker over a period between about 2003 and 5 March 2014 resulted in injury to his lumbar spine, cervical spine and right upper extremity, it must be remembered that in the decision of Toplis v Coles Group[21] Roche DP made it clear the term “nature and conditions” is not a term used in the New South Wales workers compensation legislation and said:
[21] [2009] NSWWCCPD 70.
“the general reference to the parties and the Arbitrator to a ‘nature and conditions’ injury was unhelpful.”

78.However, it must also be remembered that Neilson J had earlier said in Mirkivoic v Davids Holdings PL[22]:
[22] (1995) 11 NSWCCR 656.
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’.
It is used in this place [the then Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, eg repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity.
Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within s 15 of the Act (where pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within s 16.”

79.While it may be there is admonishment for the use of the term ‘nature and conditions of employment’ as a means to abbreviate the circumstances of injury alleged by an injured worker, it is a fact, as acknowledged by Neilson J above and the Court of Appeal on occasion[23], that the expression is commonly used in the New South Wales workers compensation area of law.
[23] Switzerland Insurance WC (NSW) Ltd v Burley [1996] NSWCA 512; Wyong Shire Council v Paterson [2005] NSWCA 74.
80.Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease injury, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[24] with comment that the test of “main contributing factor” is one of causation that involved consideration of the evidence overall.
[24] [2020] NSWWCCPD 9.
81.Precision Valve disputes Mr Shah sustained injury to his cervical spine, lumbar spine and right upper extremity as a result of the nature and conditions of his employment with Precision Valve, and Mr Shah has the onus of proving he sustained these injuries as a result of the nature and conditions of his employment with Precision Valve and that his employment with Precision Value was the main contributing factor to these injuries. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[25] McDougall J stated:
[25] [2008] NSWCA 246 (Nguyen).
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”

82.It is instructive to note that in Malec v JC Hutton Pty Limited[26] Deane, Gaudron and McHugh JJ said at [642]-[643]:
[26] [1990] HCA 20; (1990) 169 CLR 638.
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.”

83.Relevant to this issue of causation of the injuries Mr Shah has sustained to cervical spine, lumbar spine and right upper extremity, in Kooragang v Cement Pty Ltd v Bates[27] Kirby J said:
[27] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”

84.In his statement Mr Shah canvassed the nature and conditions of his employment with Precision Valve as a production process machine operator/technician during the period between 2003 and 2008, after which he said there were major changes in his duties and workload with the introduction of the Bikini machine. Mr Shah said he was ultimately working on four machines by 2010. Mr Shah explained he was “very busy” and “was exhausted by the end of every shift”. He recalled “having to take general painkillers to help with body pains due to this additional work. There was on and off body discomfort during night-time after work”. Mr Shah said his workload again increased in or about 2011 as he was by then required to work on five machines. He said he “was getting even more tired and exhausted at the end of my shifts every day”. Mr Shah explained:
“The nature and conditions of my every day work were very heavy and arduous. It was repetitive work with lots or repetitive bending, lifting and carrying.”

85.Mr Shah relevantly said that in or about May 2012 he experienced pain in his back and neck, and in or about July/August 2013 he also began to experience pain in his right shoulder.
Mr Shah ultimately ceased work on 5 March 2014 consequent on him experiencing “an incredible amount of pain during work” on that particular day.
86.Mr Shah’s former general medical practitioner, Dr Tun, recorded low back complaint by
Mr Shah as early as 17 March 2004 in the context of a change in Mr Shah’s work duties two weeks’ earlier. At that time Dr Tun noted Mr Shah to be a process worker. Mr Shah continued to complain of low back pain to Dr Tun and on 21 June 2011 Dr Tun noted
Mr Shah complained of back pain in the context of fixing a machine at work. Mr Shah continued to complain of low back pain and on 14 September 2012 Mr Shah also made complaint of “worsening right shoulder pain”. Mr Shah continued to complain of low back pain and right shoulder pain and on 30 August 2013 Dr Tun recorded Mr Shah also now complained of neck pain. Mr Shah continued to complain of low back pain, cervical spine pain and right shoulder pain throughout the remainder of his time under the care of Dr Tun until he transferred his general medical care to Dr Patel in late 2020, with Dr Patel relevantly having recorded on 25 February 2021 “started neck-lower back & arm pain from work due to repetitive bending from neck & back & lifting at work”.
87.Dr Dave, to whom Mr Shah was initially referred in 2012 relevant to his bilateral knee pain, noted on 11 September 2013 Mr Shah was complaining of right shoulder pain and in a report dated 17 September 2013 Dr Dave noted MRI diagnostic imaging demonstrated a large disc protrusion at the C/T1 region.
88.Dr Gray, to whom Mr Shah was initially referred in 2013 relevant to his cervical spine pain and to whom Mr Shah was re-referred in 2014 relevant to his lumbar spine pain, discussed “options” available to Mr Shah, which included “a change in his occupation”.
89.Dr Peter Bentivoglio, to whom Mr Shah was referred in 2014 relevant to his lumbar spine pain, provided opinion that the nature and conditions of Mr Shah’s employment with Precision Valve was a contributing factor to his lumbar spine pain. Dr Peter Bentivoglio provided opinion:
“He needs to avoid lifting more than 15kg, and avoid repetitive bending which could be difficult with the work he performs.”

In response to specific questioning following his assessment of Mr Shah on 11 May 2021,
Dr Peter Bentivoglio said of Mr Shah:
“He has multilevel degenerative disease which pre-existed his work injury but has been exacerbated by the work that he did dating back to September 2013. This resulted in him needing to have surgery to his lumbar spine and treatment for his cervical spine as well. I would agree that his work has been the main contributing factor to the aggravation of the degenerative disease both in his lumbar spine and cervical spine.”

90.Dr Hsu, to whom Mr Shah was referred in May 2014 relevant to his lumbar spine pain, noted complaint by Mr Shah on 24 December 2014 of cervical spine pain and complaint by Mr Shah on 30 January 2015 of shoulder pain.
91.At the pre-program medical assessment for the multidisciplinary pain management program with Westmead Hospital on 30 January 2015 Mr Shah’s complaints included lumbar spine pain that was particularly severe in 2014 and cervical spine pain and right shoulder pain since 2013.
92.Dr Diwan, to whom Mr Shah was referred in May 2015 relevant to his lumbar spine pain, noted complaint of lumbar spine pain and right shoulder pain.
93.While Dr Sheehy, who assessed Mr Shah relevant to his lumbar spine and cervical spine injury initially provided opinion Mr Shah’s employment was a substantial contributing factor in the development of those injuries, Dr Sheehy subsequently provided opinion he was unable to provide opinion on causation following review of paper work which indicated
Mr Shah’s injury could not have occurred in the manner alleged and there had been significant delay in Mr Shah making his claim for compensation relevant to those injuries.
94.While Mr Capasso provided evidence Mr Shah’s work duties were not as physically laborious as alleged by Mr Shah, I am of the view Mr Shah has provided a credible history of the nature and conditions of his employment with Precision Valve and has provided a consistent history of his work duties over time to his treating general practitioners and specialists and to the independent medical examiners. While Dr John Bentivoglio reported Mr Shah had told him “his work activities were generally not heavy in nature” there is no suggestion by
Dr Bentivoglio the nature and conditions of Mr Shah’s employment were not busy, intense, arduous, repetitive, and involved a great deal of bending, lifting and carrying, as alleged by Mr Shah.
95.I am also of the view Mr Shah has provided a consistent history of the onset of his lumbar spine, cervical spine and right upper extremity symptoms as a result of the nature and conditions of his employment with Precision Valve. I am mindful Mr Shah has the valuable support of his general medical practitioners who have provided clinical record of complaint by Mr Shah of pain in his lumbar spine, cervical spine and right upper extremity in the context of his work duties and having considered the evidence as a whole and careful consideration of counsel’s submissions, I accept Mr Shah sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder), as alleged.
96.In so far as the injuries Mr Shah has sustained to his lumbar spine and cervical spine are concerned, Mr Shah has the valuable support of his treating specialist, Dr Peter Bentivoglio, who provided opinion the nature and conditions of Mr Shah’s employment with Precision Valve has exacerbated the pre-existing degenerative disease injury Mr Shah suffers in his lumbar spine and his cervical spine, with Mr Shah’s employment with Precision Valve being the main contributing factor to injury. I prefer the opinion of Dr Peter Bentivoglio over that of Dr Sheehy, who in essence has provided opinion he is unable to provide opinion as to the cause of Mr Shah’s lumbar spine and cervical spine injury in the context of a dispute about the actual nature and conditions of his employment and the delay in Mr Shah making his claim for compensation resulting those injuries.
97.In so far as injury Mr Shah has sustained to his right upper extremity (right ulnar nerve) is concerned, Dr Peter Bentivoglio accepted the surgical treatment that Mr Shah came to under the care of Dr Dave was “probably because of the wasting and weakness of his right hand”, Mr Shah’s treating surgeon Dr Dave noted in his post-surgical report that a demonstrated large disc protrusion at the C/T1 region “may account for some of the numbness and paraesthesia” and Dr Sheehy accepted there was evidence of a T1 motor deficit in Mr Shah’s right hand. In such circumstances I accept Mr Shah sustained injury to his right upper extremity (right ulnar nerve) as a result of the nature and conditions of his employment with Precision Valve.
98.In so far as injury to his right upper extremity (right shoulder) is concerned, Mr Shah has the valuable support of Dr Herald who provided opinion the injury Mr Shah sustained to his right upper extremity (right shoulder) resulted from the nature and conditions of his employment with Precision Valve. I prefer the opinion of Dr Herald over that of Dr John Bentivoglio, which appears to be premised on belief Mr Shah had not sustained specific injury to his right shoulder, whereas an MRI scan right shoulder report dated 7 January 2015 recorded mild supraspinatus tendinosis with partial thickness tear and features of early capsulitis and Dr Herald provided diagnosis of injury in the nature of right shoulder rotator cuff tear.

Date of injury for the purposes of Mr Shah’s claim for permanent impairment compensation made under s 66 of the 1987 Act

99.I have determined Mr Shah sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) in the nature of a disease injury that was exacerbated in the course of his employment with Precision Valve and that Mr Shah’s employment with Precision Valve was the main contributing factor to injury.

I am required to determine the deemed date of injury for the purposes of Mr Shah’s claim for permanent impairment compensation. Section 16 of the 1987 Act is primarily concerned with the setting of the date of injury in the nature of an exacerbation of a disease injury. Section 16 of the 1987 Act identifies the date of injury as (a) date or death or incapacity; or (b) if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury.

The authorities establish there may be more than one deemed date of injury[28] and relevant to Mr Shah’s claim for permanent impairment compensation I am mindful of former
President Keating’s decision in Westpac Banking Corporation v Hungerford[29] which I am bound to follow. As Mr Shah has made no claim for weekly compensation resulting from injury sustained to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) resulting from the nature and conditions of his employment with Precision Valve between about 2003 and 5 March 2014 and there is no claim for weekly compensation before me to determine, I am of the view s 16 of the 1987 Act fixes the deemed date of injury for Mr Shah’s claim for permanent impairment compensation at
20 December 2021, being the date of his claim for permanent impairment compensation resulting from injury sustained to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) as a result of the nature and conditions of his employment with Precision Valve.

Notice of injury prescribed by s 254 of the 1998 Act and time for making a claim prescribed by s 261 of the 1998 Act

[28] Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd and Anor (1998) 45NSW LR 606; Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246; P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 49NSW LR 481; Stone v Standard Bros Launch Services Pty Limited (2004) NSW CA 277;

[29] [2018] NSWWCCPD 50.

Section 254 of the 1998 Act requires that notice of injury must be given to an employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury.
The ancillary requirement that a worker provide notice to an employer before the worker has voluntarily left the employment in which the worker was at the time of the injury is pertinent to Mr Shah’s claim in that it is evident Mr Shah did not voluntarily leave his employment with Precision Valve. Mr Shah said that in or about March 2015, being after he received his letter of termination dated 15 January 2015, his son assisted him in lodging an unfair dismissal claim against Precision Valve “because we thought that I could save my job and at least be given the opportunity to some other suitable duties especially after my long service at Precision Valve”.Having considered this evidence relevant to the termination of Mr Shah’s employment with Precision Valve and careful consideration of counsel’s submissions, I am of the view s 254(1) of the 1987 Act is not a bar to the recovery of any permanent impairment compensation that may be payable to Mr Shah under s 66 of the 1998 Act.
Section 261 of the 1998 Act requires that a claim for compensation must be made within six months after the date the injury or accident happened. However, this bar is lifted if the failure to make a claim “was occasioned by ignorance, mistake, absence from the State or other reasonable cause”[30] and a claim was made within three years after the date that the injury or accident happened.
[30] Section 261(4) of the 1998 Act.
While there is no doubt Mr Shah’s claim for compensation was made outside the specified six-month period, his claim for compensation is not outside the referred three year period as I have determined a deemed date of injury of 20 December 2021, being the date Mr Shah actually made his claim for permanent impairment compensation.
Mr Shah bears the burden of proving that the failure to make his claim within the prescribed period was occasioned by “ignorance, mistake, … or other reasonable cause” as the absence from the State exception is not relevant for the purposes of Mr Shah’s claim.
I am mindful it was relevantly stated by Burke J in Gregson v L and Mr Dimasi Pty Ltd[31]:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim …”
[31] 20 NSWCCR 520.
While it is evident from his statement that Mr Shah may well have been aware of his rights under the workers compensation legislation in that he said Dr Tun asked him if he “was interested in going through the workers compensation process” as early as 2012 and he attempted to lodge a claim for compensation in or about 2013 with the assistance of his union, it is evident Mr Shah was unaware of the obligations imposed by the workers compensation legislation relevant to the prescribed timeframe for lodgement of his claim.
Mr Shah said of the union “they did not tell me that there were timeframes to lodge a claim”. Mr Shah said it was not until he sought legal advice specific to workers compensation claims in or about February 2021 that he was made aware of the fact there were timeframes dictating when a claim for compensation should be made.
Having considered the evidence as a whole and careful consideration of counsel’s submissions I am satisfied Mr Shah has discharged the onus of proof required of him. I accept it was not until Mr Shah obtained legal advice specific to workers compensation claims in or about February 2021 that he was aware of the legislative obligation to make his claim for workers compensation against Precision Valve within six months after the date of injury and I find s 261(1) of the 1998 Act is not a bar to the recovery of any permanent impairment compensation that may be payable to Mr Shah under s 66 of the 1987 Act.

Permanent impairment

I have determined Mr Shah sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) in the nature of an exacerbation of a disease injury as a result of the nature and conditions of his employment with Precision Valve. I have determined Mr Shah’s employment with Precision Valve was the main contributing factor to injury. I have also determined the deemed date of injury for Mr Shah’s claim for permanent impairment compensation resulting from these injuries is
20 December 2021.
It is appropriate Mr Shah’s claim for permanent impairment compensation resulting from injury sustained to his lumbar spine, cervical spine, right upper extremity (right ulnar nerve and right shoulder) and scarring as a result of the nature and conditions of his employment with Precision Valve, with a deemed date of injury of 20 December 2021, be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are:
(a) ARD and attached documents, and
(b) Reply and attached documents.

SUMMARY

I have determined Mr Shah sustained injury to his lumbar spine, cervical spine and right upper extremity (right ulnar nerve and right shoulder) in the nature of an exacerbation of a disease injury as a result of the nature and conditions of his employment with Precision Valve. I have determined Mr Shah’s employment with Precision Valve was the main contributing factor to injury. I have also determined the deemed date of injury for Mr Shah’s claim for permanent impairment compensation resulting from these injuries is
20 December 2021.
I have determined s 254(1) of the 1998 Act is not a bar to the recovery of any permanent impairment compensation that may be payable to Mr Shah under s 66 of the 1987 Act and I have also determined s 261(1) of the 1998 Act is not a bar to the recovery of any permanent impairment compensation that may be payable to Mr Shah under s 66 of the 1987 Act.
Mr Shah’s claim for permanent impairment compensation resulting from injury sustained to his lumbar spine, cervical spine, right upper extremity (right ulnar nerve and right shoulder) and scarring as a result of the nature and conditions of his employment with Precision Valve, with a deemed date of injury of 20 December 2021, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are:
(a) ARD and attached documents, and
(b) Reply and attached documents.

[2022] NSWPIC 450

10 August 2022