Shlimon v Steric Pty Ltd
[2025] NSWPICPD 70
•10 October 2025
| ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | ||
CITATION: | Shlimon v Steric Pty Ltd [2025] NSWPICPD 70 | |
APPELLANT: | Shlimon Youkhana Shlimon | |
RESPONDENT: | Steric Pty Ltd | |
INSURER: | icare Workers Insurance | |
FILE NUMBER: | A1-W27511/24 | |
PRESIDENTIAL MEMBER: | President Judge Phillips | |
DATE OF APPEAL DECISION: | 10 October 2025 | |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 4 June 2025, subject to the following amendment, is confirmed. 2. I amend Order 2 of the Certificate of Determination to insert the word “respiratory” immediately before the word “urinary” in that Order. | |
CATCHWORDS: | WORKERS COMPENSATION – consideration of deemed date of injury for a disease pursuant to s 15(1) of the Workers Compensation Act 1987 – s 322(2) and (3) of the Workplace Injury Management and Workers Compensation Act 1998 – Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 considered and applied | |
HEARING: | On the papers | |
REPRESENTATION: | Appellant: | |
| Mr S Hickey, counsel | ||
| M D Di Re Solicitor & Attorney | ||
| Respondent: | ||
| Ms L Goodman, counsel | ||
| Rankin Ellison Lawyers | ||
DECISION UNDER APPEAL: | Shlimon v Steric Pty Ltd [2025] NSWPIC 252 | |
MEMBER: | Mr M Strachan | |
DATE OF MEMBER’S DECISION: | 4 June 2025 | |
INTRODUCTION
The dispute in this matter takes place within a narrow confine. Namely, what is to be the correct date of injury to be applied in assessing Mr Shlimon Youkhana Shlimon’s (the appellant) entitlement to lump sum compensation under s 66 of the Workers Compensation Act 1987 (1987 Act).
The appellant commencing employment with Steric Pty Ltd (the respondent) as a process worker, packer, forklift driver and general labourer in 1993.[1] The respondent manufactured foods for various shops such as Coles and Woolworths. The appellant’s job involved lifting and bending or driving a forklift. While driving the forklift the appellant was required to twist and turn while reversing, placing stress on his lower back and neck. In about 2004 the pain in the appellant’s left elbow and back meant that he made a claim for workers compensation and he stopped working for a period of 2-4 weeks. When he returned to work it was on light duties until May 2005 when his hours returned to normal, although he was not able to return to working overtime hours.[2]
[1] Appellant’s statement dated 14 April 2023, Application to Resolve a Dispute (ARD), p 1.
[2] ARD, p 3.
The appellant brought a claim in 2006 for lump sum compensation in the former Workers Compensation Commission (WCC), the statutory predecessor of the Personal Injury Commission (Commission). The claimed injuries were to the appellant’s lumbar spine and left shoulder as a result of the nature and conditions of his employment. The matter was resolved with the same parties as in these proceedings filing an agreement under s 66A of the 1987 Act, the effect of which was to pay the amount of $12,500 to the appellant in respect of 10% whole person impairment (WPI).[3] This agreement specified the date of injury as 3 November 2004.
[3] ARD, p 382.
The appellant continued to work with the respondent after he made his 2006 claim, working normal hours and duties at his own pace but he was never able to return to overtime duties.[4] The appellant’s statement[5] describes his work and reported symptoms over the period 1 January 2002 to 23 July 2020. The appellant has not worked since Friday 12 February 2021.[6]
[4] ARD, p 3.
[5] See ARD, pp 2–11.
[6] ARD, p 12.
The appellant commenced these proceedings in October 2024, claiming lump sum compensation of 45% WPI comprising assessments of the following body systems: left upper extremity, right lower extremity, lumbar spine, respiratory, urinary and reproductive systems. The appellant pleads that these injuries came about as a result of the nature and conditions of his employment, which he has described in the statement I have referenced above, with respect to the period claimed (1 January 2002–23 July 2020).
There is no dispute in this matter about liability.
The appellant’s application was referred to Commission medical assessors, who reached a combined WPI assessment of 46% WPI specifying the date of injury as being 1 January 2002, being the date pleaded in the ARD.
The parties then raised a dispute about the correct date of injury which was to be utilised in the assessment of the monetary value of the lump sum compensation. Pausing here, this was an issue that should have been resolved or decided well prior to the referral to the medical assessors. The Referral Certificate[7] nominated 1 January 2002 as the date of injury and this was what was recorded in the Medical Assessment Certificate dated 5 March 2025 issued by the Commission. Neither party took issue with the date on the Referral. Neither party now submits that 1 January 2002 is the correct deemed date of injury.
[7] Dated 21 October 2024.
This question was heard by the Member on 14 May 2025. The essential finding deciding this point can be found at Order 3 of the Certificate of Determination dated 4 June 2025 which reads as follows;
“The 3 November 2004 injury materially contributed to the further injury of 22 July 2020 such that impairment resulting from the latter injury is to be assessed as resulting from the 3 November 2004 injury.”
The appellant appeals this decision.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
THE MEMBER’S REASONS
The Member uncontroversially identified the dispute he had to resolve, namely the correct date of injury to be applied in assessing the appellant’s correct entitlement under s 66 of the 1987 Act and whether there was a further “deemed” injury sustained on 22 July 2020.[8]
[8] Shlimon v Steric Pty Ltd [2025] NSWPIC 252 (reasons), [12]–[13].
The Member approached the answer to this question in the following way:
“43. The [appellant] has clearly advanced the matter on the basis that the impairments from the 2004 injury and the 2020 injury are related and can be aggregated. [This] is evident from:
(a) the submission that he was only entitled to bring a further claim for lump sum compensation because the earlier claim was brought prior to 18 July 2012 (such that s 66(1A) of the 1987 Act does not apply to the further claim), and
(b) the concession that the earlier compensation paid in 2006 would need to be deducted from any further entitlement he may now have.
44. I considered the issue in similar circumstances in the matter Gutierrez[[9]] which the respondent referred to in these proceedings at length. I adopt what I said in Gutierrez at [102]–[105] with respect to the operation of s 322(2) and s 322(3) of [the 1998 Act].
45. Section 322(2) of the 1998 Act provides that ‘Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker’.
46. Section 322(3) of the 1998 Act provides that ‘Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker’.
47. In applying s 322(2) and (3) I consider I am required to follow what was said by Macfarlan JA (with Simpson AJA and McCallum JA agreeing) in Ozcan,[[10]] where he noted that the relevant question ‘was whether the later [injury] resulted from those on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the [first injury] because all the injuries arose out of the same incident.’ MacFarlan JA further concluded in Ozcan ‘the impairments are however connected because the first incident injuries materially contributed to them’. They therefore ‘arose out of’ and ‘resulted from’ that incident.
48. The injuries to the [appellant’s] left shoulder and back continued to deteriorate following the 2004 deemed injury including with the development of the conditions to the respiratory and urinary and reproductive system. The [appellant] also developed complaints in his right shoulder as a result of the nature and conditions of his employment.
49. I am satisfied, applying the principles in Ozcan, that the earlier injury in 2004 materially contributed to the later conditions in the lumbar spine (and consequential urinary and reproductive condition) and left shoulder and that the later conditions therefore arose out of and resulted from the 2004 injury.
…
51. I do not accept the submission by the [appellant] that the manner in which s 15(1) of the 1987 Act deems an injury to have occurred at ‘the culmination’ of events overcomes the clear principle in Ozcan that where a later impairment augments the earlier impairment they are to be assessed together as resulting from the first impairment.
52. I further do not accept the [appellant’s] submission that the later onset of the right shoulder somehow changes the analysis. The claim for lump sum compensation was advanced by the [appellant] on the basis that the right shoulder should be aggregated with the other impairments and on its own the right shoulder does not reach the 11% whole person impairment threshold.”
[9] Gutierrez v State of New South Wales South Western Sydney Local Health District [2024] NSWPIC 656 (Gutierrez).
[10] Ozcan v Macarthur Disability Services Ltd [2021] NSWCA 56 (Ozcan).
The Certificate of Determination issued on 4 June 2025 records:
“The Commission determines:
1. The [appellant] sustained injury to his left shoulder and lumbar spine as a result of the nature and conditions of his employment with respondent up to 3 November 2004 with a deemed date of 3 November 2004;
2. The [appellant] sustained a further injury to his left shoulder, right shoulder, lumbar spine and a consequential condition to his urinary and reproductive system due to the nature and conditions of his employment up to 22 July 2020 with a deemed date of injury of 22 July 2020.
3. The 3 November 2004 injury materially contributed to the further injury of 22 July 2020 such that impairment resulting from the latter injury is to be assessed as resulting from the 3 November 2004 injury.
4. The monetary compensation payable to the [appellant] pursuant to s 66 of the Workers Compensation Act 1987 is to be calculated with reference to the 3 November 2004 injury.
5. Pursuant to s 329(1A) of the Workplace Injury Management and Workers Compensation Act 1998 the claim for permanent impairment compensation is remitted to the President for referral back to Medical Assessors Carter and Obele for reconsideration with respect to:
(a) correction of the date of injury such that it is injury on 3 November 2004 (incorporating injury on 22 July 2020 (deemed), and
(b) correction of any error with respect to the left and right upper extremity in the lead Medical Assessment Certificate of Dr Carter which inverts the findings of Medical Assessor Obele with respect to the left and right upper extremity.”
GROUNDS OF APPEAL
The appellant relies on the following three grounds of appeal:
(a) Ground One – The Member erred at law at reasons [47] and [49] when misdirecting himself in applying Ozcan which dealt with the question of causation and aggregation of injuries sustained in three discreet events of injury (s 4(a) injuries) when the principles in Ozcan were not applicable to the found ‘nature and conditions’ injuries by way of disease with separate deemed dates of injury determined as 3 November 2004 and 22 July 2020 and in so erring determined incorrectly 3 November 2004 as the date for assessment of the impairments.
(b) Ground Two – The Member erred at reasons [51] when misdirecting himself in applying Ozcan to s 4(b) disease injuries found to have occurred on deemed dates of injury 3 November 2004 and finally on 22 July 2020 as a result of the nature and conditions of employment to the effect that where the later impairment augments the earlier impairment both such impairments are to be assessed together as resulting from the first injury/impairment.
(c) Ground Three – The Member erred in failing to include a determination at [1] and [2] of the Certificate of Determination and at reasons [54] the consequential injury to the ‘respiratory system’ despite having found such respiratory system injury at reasons [40].
LEGISLATION
Section 15(1) of the 1987 Act provides:
“(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Sections 322(2) and (3) of the 1998 Act provide:
“(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.
(3) Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”
DISCUSSION
As to Ground One
The appellant submits that having ‘found’ two deemed dates of injury, 3 November 2004 and 22 July 2020, due to the nature and conditions of the appellant’s employment up to 22 July 2020 (and two consequential conditions in addition), there was no need for the Member to apply the principles arising from Ozcan relating to either causation or aggregation. There is no need to consider Ozcan, the appellant submits, as the deeming provisions in the 1987 Act provide the mechanism for determining such dates, relying upon ss 15 and 16 of the 1987 Act.[11] The appellant also points to ss 68B(2) and (3) of the 1987 Act (incorrectly referenced as s 68) to support a submission that the assessment for a disease injury is at its point of culmination. The appellant concludes by arguing:
“I submit that the very logic of applying s 4(b)(i) or s 4(b)(ii) disease provisions which necessarily invoke application of the provisions in s 15 and 16 of the 1987 Act demands that the impairments/injuries suffered as at any found deemed dates of injury be assessed for any impairments found or determined upon such deemed date(s). In the Appellant's case there was a worsening over time of the original injuries for which the Appellant was compensated in 2006 for the lumbar spine and left upper extremity. In addition, the right upper extremity suffered injury and impairment along with the lumbar spine and left upper extremity up to the second found deemed date of injury 22 July 2020. The consequential injuries result from the Appellant's injuries which are seen as having culminated on the final deemed date of injury (22 July 2020). Applying s 68(2)(a) and s 68(3)(a) there is requirement to deduct from the otherwise whole of the assessment of impairment assessed at 22 July 2020 the previously paid lump sum compensation for the deemed date if injury/impairment on 3 November 2004.”[12]
[11] Appellant’s submissions 1 July 2025, [11]–[13].
[12] Appellant’s submissions 1 July 2025, [16].
In response, the respondent says that it is the appellant’s uncontested evidence that he suffered incapacity from 3 November 2004 onwards. He was injured as at that date and from then on, the appellant says that he could not work overtime, with the appellant’s evidence being that prior to injury, he regularly worked on average 15 overtime hours per week.[13]
[13] ARD, p 2.
The respondent submits:
“6. As Griffiths AJA (Kirk JA and Stern JA agreeing) stated in Haddad v The GEO Group Australia Pty Ltd[[14]]
‘As explained in Thoroughgood, the correct position is that where a disease injury causes an incapacity (in the sense of a reduction in earning capacity) and at the same time gives rise to an entitlement to compensation under the 1987 Act (whether for permanent impairment or treatment expenses or otherwise), s 15(1)(a)(ii) operates to deem the date of injury relevant to any such claim to be the time when the worker suffered incapacity. This does not turn on the framing of the claim by the claimant but rather on the entitlement to claim, as illustrated most clearly in Thoroughgood …”
7. Contrary to submissions made by the Respondent, Member Strachan found that the Appellant had suffered a further injury with a deemed date of 22 July 2020.[[15]]
8. Member Strachan then went on to consider whether the impairments from the 2004 injury and the 2020 injury could be aggregated.[[16]]
9. Member Strachan properly considered the application of section 322(2) of the 1998 Act which provides that in assessing the degree of permanent impairment, impairments that result from the same injury are to be assessed together and section 322(3) which provides that impairments that result from more than one injury arising out of the same incident are to be assessed together. Member Strachan considered[[17]] that he was required to follow what was said by Macfarlan JA (with Simpson AJA and McCallum JA agreeing) in Ozcan where his Honour noted that the relevant question ‘was whether the later [injury] resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the [first injury] because all the injuries arose out of the same incident.’
10. Member Strachan further noted that Macfarlan JA further concluded in Ozcan that ‘the impairments are however connected because the first incident injuries materially contributed to them. They therefore ‘arose out of’ and ‘resulted from’ that incident.’
11. Member Strachan found, applying the principles in Ozcan, that the earlier injury in 2004 materially contributed to the further injury of 22 July 2022 and that the later conditions therefore arose out of and resulted from the 2004 injury[[18]].”[19]
[14] [2024] NSWCA 135 (Haddad), referring to Inghams Enterprises Pty Ltd v Thoroughgood [2014] NSWCA 166.
[15] Citing reasons, [42].
[16] Citing reasons, [43].
[17] Citing reasons, [47].
[18] Citing reasons, [49] and [55].
[19] Respondent’s submissions 5 August 2025, [6]–[11].
The respondent also says that the appellant made no submission to the Member that Ozcan did not apply to causation or aggregation, due to the operation of ss 15 and 16 of the 1987 Act.
The respondent concludes with the following:
“Member Strachan found that the injury in 2004 materially contributed to the later injury on 22 July 2020 in accordance with the principles enunciated in Ozcan and that therefore it was the 2004 date of injury that applied to the assessment of permanent impairment.”[20]
[20] Respondent’s submissions 5 August 2025, [17].
Consideration
I have read the transcript of the appellant’s submissions before the Member.[21] Nowhere was it put to the Member that the principles arising from Ozcan had no application to the facts of this case. To the contrary, counsel for the appellant referred the Member to Ozcan, amongst a number of authorities dealing with causation and aggregation, at T7, T11 and T13.[22]
[21] Transcript of proceedings 14 May 2025 (T).
[22] In the transcript, Ozcan is incorrectly spelt as “Auscan”.
Counsel for the respondent also submitted to the Member on the effect of Ozcan to this matter. In summary, in reliance upon Ozcan, counsel for the respondent submitted that the relevant date was the first date of incapacity,[23] which on the respondent’s case is 3 November 2004. Whilst I accept that the appellant’s case to the Member did not embrace the respondent’s position on Ozcan, the appellant did not say that Ozcan had no application.
[23] T 21.24–33.
By definition, the Member cannot be in error for not dealing with an argument that was not put.[24]
[24] Brambles Industries Limited v Bell [2010] NSWCA 162 (Bell), [30].
However I do accept that the argument about s 4(b)(i) and the deemed date determined by reference to s 15(1) of the 1987 Act was an argument that was put to the Member.[25] The Member dealt with this submission and his preferred view of the application of Ozcan to the circumstances of this matter in the passages I have extracted above. So, whilst the precise argument now put on appeal was not advanced to the Member, I will nevertheless decide this ground on its merits.
[25] T 10.10–12.
At the outset, I remark that the appellant takes no issue with what I consider to be unchallenged factual findings that the Member made that the later injuries resulted from the 2004 injury.[26] I also note that the evidence of the appellant was that after the 2004 injury, he paced his work but was never again able to work overtime. As set out above, the appellant’s evidence was to the effect that before the 2004 injury, he worked on average 15 overtime hours each week. The appellant also gave extensive evidence about the progression of his injuries from 2004 to 2020,[27] none of which was in dispute.
[26] Reasons, [53]–[55].
[27] ARD, pp 2–11.
In my respectful opinion, the appellant’s argument that Ozcan is of no application does not deal with, in terms, exactly what Macfarlan JA said in that decision. In Ozcan, the worker had suffered injuries to her lumbar spine, thoracic spine and right shoulder on 14 November 2011. The worker suffered further injuries to her lumbar and thoracic spine on 3 May and 26 September 2012 in the same employment. On appeal in the former Workers Compensation Commission, the Deputy President held that the right shoulder injury could not be aggregated with the losses which arose due to the second and third injuries, as the right shoulder injury did not contribute materially to them. Macfarlan JA said that this approach was incorrect, saying the following at [16]:
“The Deputy President reached a different conclusion because she found that the right shoulder injury ‘did not materially contribute to the impairments of the lumbar or thoracic spine and was not the same injury (pathology), … This was not however, with respect, the issue that needed to be addressed. The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident, that is, that of 14 November 2011.”
The factual circumstances in this case are, in my view, stronger than those in Ozcan. In this case there is accepted injury in 2004, which is followed by unbroken incapacity thereafter.[28] The injury asserted, and this was not in dispute, was injury by disease, which Haddad addressed at [80]. The correct deemed date for the injury is when the worker suffered incapacity, in this case 2004. There is no challenge on the evidence that the appellant suffered incapacity from 2004 and that the progression of the disease resulted from the 2004 injury.
[28] See Haddad at [80].
Ozcan, in terms of the facts in this case, was relevant and applicable Court of Appeal authority which bound the Member. The Member was obliged to apply it.
The Member was correct to find 3 November 2004 as the relevant deemed date of injury.
Error has not been established, Ground One is dismissed.
As to Ground Two
This ground is essentially a repetition of that which was argued by the appellant in Ground One. Whilst attention in Ground One is directed to the asserted errors at reasons [47] and [49], Ground Two impugns reasons [51]. The appellant asserts:
“There was error in applying the causation and aggregation principles set in Ozcan when the Appellant's case invoked the application of the disease principles set in s 4(b) and sections 15 and 16 and s 68B of the 1987 Act.
In applying Ozcan principles the Member misdirected himself into finding that as the original injury found (3 November 2004) materially contributed to the injuries/impairments which culminated at 22 July 2020 the original injury was causative of the later injuries in part and thus the injuries later in time are assessed as caused by the earlier injury. That then erroneously led to the determination at reasons [56] that the monetary compensation is to be calculated by reference to the earlier injury on 3 November 2004.”[29]
[29] Appellant’s submissions 1 July 2025, [17].
In reply, the respondent relies upon its submissions in response to Ground One, specifically paragraphs [14] to [17] which I have read but do not repeat.
Consideration
Ground Two is not expressed in terms different to Ground One and for the same reasons that I have dismissed Ground One, Ground Two must also fail.
Ground Two is dismissed.
As to Ground Three
The appellant says that the Member, having found an injury of a consequential nature to the appellant’s respiratory system at reasons [40], failed to specify this system in his orders. The respondent agrees that this appears to be an oversight in Order 2 of the Certificate of Determination.
Consideration
It is apparent that the Member did not include the undisputed as found injury[30] to the appellant’s respiratory system in his orders. This was in error.
[30] At reasons, [40].
Ground Three is established. I will make orders amending Order 2 of the Certificate of Determination dated 4 June 2025 to include the respiratory system.
DECISION
The essential aspects of this appeal which are constituted by Grounds One and Two have failed. I will correct the error in Order 2 of the Certificate of Determination dated 4 June 2025 to insert the body system of “respiratory” before the word “urinary” in that Order. Otherwise, the Certificate of Determination is confirmed.
The Certificate of Determination dated 4 June 2025, subject to the following amendment, is confirmed.
I amend Order 2 of the Certificate of Determination to insert the word “respiratory” immediately before the word “urinary” in that Order.
Judge Phillips
PRESIDENT
10 October 2025
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