Simamora v International Moulded Plastics Pty Ltd
[2023] NSWPIC 34
•27 January 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Simamora v International Moulded Plastics Pty Ltd [2023] NSWPIC 34 |
| APPLICANT: | Florence Simamora |
| RESPONDENT: | International Moulded Plastics Pty Limited |
| Member: | Philip Young |
| DATE OF DECISION: | 27 January 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Accepted claim for right upper extremity injury; claim for primary or consequential neck injury or condition, consequential left upper extremity condition and consequential hypertensive condition; consideration of Kooragang Cement Pty Limited v Bates, Woolworths Limited v Stafford and Westpac Banking Corporation v Hungerford; preference of applicant’s medical opinion over opinion of Dr Wallace; Held – award in favour of the applicant in respect of right upper extremity and neck injuries and consequential left upper extremity and hypertensive conditions; matter remitted to the President of the Personal Injury Commission for referral to a Medical Assessor. |
| determinations made: | 1. By reason of the nature and conditions of the applicant’s employment with the respondent between October 2013 and 22 July 2015 the applicant suffered an aggravation injury to her pre-existing right shoulder, right elbow, both wrists and hands and neck. 2. The applicant suffered a consequential condition in respect of her left upper extremity (left shoulder) due to overuse of her left upper extremity to spare her right arm and shoulder. 3. The applicant suffered a consequential condition in the nature of hypertension as a result of the combination of injury and consequential conditions described above. 4. The applicant’s permanent impairment was fully particularised on 22 September 2021 and this date is the deemed date of injury for the purposes of s 4 (b) (ii) of the Workers Compensation Act1987 (the 1987 Act). 5. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant whole person impairment, if any, which results from injury to the applicant’s right upper extremity (right shoulder, right elbow, right wrist and hands), cervical spine, left upper extremity (left shoulder) and hypertension with deemed date of injury of 6. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments and a copy of these Reasons. |
STATEMENT OF REASONS
BACKGROUND
Florence Simamora (the applicant) is a 50-year-old lady who was employed by International Moulded Plastics Pty Limited (the respondent) between October 2013 and 22 July 2015.
The applicant brings a claim pursuant to s 66 of the 1987 Act relying upon episodes of injury and consequential conditions. The applicant relies upon allegations concerning the nature and conditions of her employment between October 2013 and 22 July 2015 (the last day worked) involving repetitive use of her hands and arms allegedly aggravating pre-existing conditions in respect of her right shoulder, right elbow, both wrists and hands and her neck. In addition, she pleads a consequential condition in respect of her neck because of an examination by the respondent’s independent medical examiner, Dr Holman. Further, she claims a consequential condition in respect of her left shoulder due to overuse of her left arm in order to spare her right arm and shoulder. She also claims that she suffered hypertension as a consequence of her various injuries and the matter is pleaded as injury pursuant to s 4 (a) and s 4 (a) and/or (b) (ii) of the 1987 Act.
The applicant’s alleged “permanent impairment” was fully particularised on
22 September 2021 so in accordance with Stafford[1] and Hungerford[2] it is alleged that the relevant deemed date of injury is 22 September 2021.[1] Woolworthes Limited v Stafford [2015] NSWWCCPD 36.
[2] Westpac Banking Corporation v Hungerford [2018] NSWWCCPD.
The background facts are not seriously disputed by the respondent, nor are the issues in any serious dispute.[3]
[3] Respondent’s submissions at [1]-[2].
ISSUES
The issues appear to be agreed.[4] They are as follows:
(a) whether the applicant sustained an injury to her neck in the course of her employment?
(b) in the alternative, whether the applicant sustained a consequential condition in respect of her neck?
(c) whether the applicant suffered a consequential condition in respect of her left shoulder?
(d) whether the applicant sustained a consequential condition in the nature of hypertension?
[4] Respondent’s submission at [2].
PROCEDURE BEFORE THE COMMISSION
This matter came for conciliation and arbitration hearing on 9 November 2022 by audio-visual link. Ms S Warren of counsel instructed by Mr D Lam, solicitor, appeared for and with the applicant. Ms J McEnaney of counsel instructed by Ms D Khoshaba, solicitor, appeared for the respondent.
The parties participated in a conciliation process in an attempt to achieve resolution of the matter. Regrettably, despite the exercise of my best endeavours, the matter was not capable of resolution. I was satisfied in the circumstances that the matter could not be settled and that jurisdiction to determine the matter by arbitration process was enlivened.
DOCUMENTS BEFORE THE COMMISSION
The following documents were in evidence before the Commission:
(a) Application to Resolve a Dispute lodged 12 August 2022 and attachments (Application), and
(b) Reply and attachments (Reply).
ORAL EVIDENCE
No oral evidence was given.
DISCUSSION AND REASONS
The applicant was employed by the respondent to work at Sutherland on a casual basis as a “picker packer”.[5] Her duties included assembling goods and required her to perform the following manual activities:
(a) using her hands quickly and repetitively;
(b) repetitively using a broken lever;
(c) holding her neck forward in a flexed position;
(d) using both arms to lift heavy boxes above her head;
(e) using her right arm to lift heavy boxes whilst holding on to a ladder with her left arm, and
(f) using her right arm to forcefully push screws into a machine.[6]
[5] Application at page 1.
[6] Application at pages 1–2 and [8]-[14] Applicant’s statement dated 17 August 2017 and Application at pages 8-9 at [4]-[7] Applicant’s statement dated 15 March 2022.
Performance of the above duties is not in dispute.[7]
[7] Respondent’s submissions at [1].
The parties have sensibly addressed the issues by examining causation in respect of each pathology concerning each body part in issue. The respondent’s overall submission is that there should be no findings concerning the neck, left shoulder and hypertension so that the other accepted conditions in the aggregate do not exceed the 10% threshold to establish a
s 66 claim.The applicant has submitted[8] that cases such as Bates,[9] Tiritabua[10] and Murphy[11] confirm a number of legal principles, including that the causal chain requires a common-sense evaluation, the applicant need not satisfy s 9A of the 1987 Act and it is only necessary for the applicant to establish that the work injury materially contributed to the consequential condition. The respondent in its submissions, sensibly does not cavil with those established principles.
[8] Applicant’s submissions at pages 4-5 at [15]-[17].
[9] Kooragang Cement Pty Limited v Bates (1994) 34 NSWLR 452.
[10] Tiritabua v Bartter Enterprises Pty Limited [2008] NSWCCPD 145.
[11] Murphy v Allity Management Services Pty Limited [2015] NSWWCCPD 49.
The parties have conveniently addressed their submissions by reference to the various body parts and I propose to do likewise.
Allegation of neck injury
The respondent makes the point that the applicant has not worked for the respondent since 22 July 2015 and that this is seven years and four months ago.[12] In Bates Kirby P in explaining the “common-sense principle” in the context of the test for causation said as follows:
“… by the same token, the mere proof that certain events occurred which pre-disposed the worker to consequent death or injury will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity of death, is not determinative of the entitlement to compensation”.
[12] Respondent’s submissions at [4].
The point to be made is that the mere effluxion of time does not necessarily mean that an injury has not occurred. A common-sense evaluation of the facts of each particular matter is required.
The respondent’s case on primary injury[13] points to the applicant’s failure to complain of neck pain while performing her work duties in the context of her having already received compensation in respect of bilateral carpal tunnel syndrome. The first complaint of problems with the applicant’s cervical spine occurred on 25 August 2015. It is submitted that the histories given to the various medical providers who subsequentially examined her do not contain any complaints of neck pain relating to the applicant’s work. It is submitted that the applicant has provided several explanations for her neck complaints (for example both primary injury and consequential conditions) and this must be viewed with some scepticism.[14]
[13] Respondent’s submissions at [5].
[14] See for example respondent’s submissions at [10].
The assessment of the applicant by Dr Holman at the request of the insurer occurred on
19 August 2015, 28 days after her last day of work. That examination included reference to neck pain/ stiffness and the applicant’s general practitioner, Dr Giang subsequently recorded[15] her complaint of her physical examination carried out by Dr Holman resulting in worsening right upper limb pain and neck pain and stiffness. In fact, Dr Giang included a referral for X-ray of the applicant’s cervical spine.[16][15] Application at page 194.
[16] Application at page 195.
In terms of this referral for X-ray, the applicant’s counsel makes reference to Dr Giang’s mention of “recurrent” neck pain/ stiffness. This suggests, and I accept this submission, that the neck pain had been occurring previously. Because it is expressed in the context of the right upper limb condition and not in respect of some separate incident I think it can be inferred that it is part of the package of pathology attributable to the applicant ceasing work on 22 July 2015. That suggests to my mind that primary neck injury had already occurred, before the examination by Dr Holman.
As the applicant’s submissions point out[17] there are numerous references to neck aches and pain after 25 August 2015 extending through until November 2021, as currently recorded.
[17] Submissions at pages 6-7 at [24].
In terms of the report of Dr Wallace, his opinion in May 2020 was the applicant had no pain in her cervical spine at that time. This might well be so given that the complaints to the general practitioner do not include any reference to neck pain between 9 August 2019 and 19 September 2020.[18] But the absence of neck pain on the day of Dr Wallace’s examination[19] does not negative the existence of an ongoing problem with the applicant’s neck. This is because of the reference to recurrent right neck pain in the general practitioners notes of 19 September 2020. Dr Wallace’s opinion that any overuse injury at the cervical spine would have resolved within six months of ceasing employment is, in my view, inconsistent with the applicant’s reports of cervical spine symptoms throughout 2020 and 2021.
[18] Application at pages 231-236.
[19] See Reply at page 56.
Dr Giblin in his report of March 2017 accepts that the applicant has some pre-existing degenerative changes in her cervical spine but also says that these changes were materially aggravated, permanently, by her work. Dr Lai in reports of 21 February 2020[20] and 20 August 2021[21] attributes movements of the joints of the applicant’s left and right upper limbs and neck to repetitive and vibratory work duties which have “caused wear and tear in these joints leading to early degeneration in these joints”.[22] Dr Lai differs from
Dr Wallace in that Dr Lai gives specific and accurate consideration to the precise nature of the applicant’s work duties and the loads involved. In my view for this reason and because of the failure of Dr Wallace to consider the full history of complaints of neck pain, Dr Lai’s opinion is to be preferred concerning frank injury to the applicant’s cervical spine.[20] Application at page 78.
[21] Application at page 96.
[22] Application at page 85.
The alleged left shoulder consequential condition
There is no doubt that the applicant suffered a severe right shoulder injury. This is confirmed by the applicant’s general practitioner by consultation note of 23 July 2015. It is recorded that the applicant should not use her right hand, at all. This continues to be documented in the sense of the applicant using her left hand to compensate for her injured right shoulder, as detailed on the many occasions set out in the applicant’s submissions.[23] Dr Lai on 16 August 2021 reported that the applicant was experiencing increasing pain and stiffness in her left shoulder “as a result of favouring her right upper extremity”.[24]
[23] Applicant’s submissions at [38]-[44].
[24] Application at page 98.
Dr Wallace in his 2021 report has an incorrect history. He thought the applicant began to experience left shoulder pain in November 2021 without suffering any injury. He approaches the matter from the viewpoint that the applicant sustained no work-related injury to her left shoulder. However, as the applicant correctly submits, this opinion is predicated not only upon an incorrect history but also because Dr Wallace does not address causation in accordance with the correct test. The correct test is, as I have set out above, the common-sense test required for a consequential condition of the left shoulder. That test does not require the establishment of substantial contributing factor or main contributing factor, just the “results from” tests set out by the authorities I have mentioned. For these reasons, this Commission accepts the opinion of Dr Lai in relation to consequential condition of the applicant’s left shoulder.
Alleged hypertension
Both Dr Herman in his report[25] and Associate Professor Haber in his two reports accept the causal connection between the applicant’s various injuries and her hypertension. The respondent’s submissions[26] appear to accept that if the physical injuries to the neck and left shoulder are causally connected with the allegations of primary injury, the medical evidence of both experts accept a causal connection with the hypertension condition.
[25] Application at page 114.
[26] Respondent’s submissions at [32]-[36].
Because I have held that the neck and left shoulder are causally connected, it follows that the hypertensive condition results from these physical injuries.
FINDINGS AND ORDERS
By reason of the nature and conditions of the applicant’s employment with the respondent between October 2013 and 22 July 2015 the applicant suffered an aggravation injury to her pre-existing right shoulder, right elbow, both wrists and hands and neck.
The applicant suffered a consequential condition in respect of her left upper extremity (left shoulder) due to overuse of her left upper extremity to spare her right arm and shoulder.
The applicant suffered a consequential condition in the nature of hypertension as a result of the combination of injury and consequential conditions described above.
The applicant’s permanent impairment was fully particularised on 22 September 2021 and this date is the deemed date of injury for the purposes of s 4 (b) (ii) of the 1987 Act.
The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant whole person impairment, if any, which results from injury to the applicant’s right upper extremity (right shoulder, right elbow, right wrist and hands), cervical spine, left upper extremity (left shoulder) and hypertension with deemed date of injury of
22 September 2021.The President’s delegate is requested to place before the Medical Assessor a copy of the Application and attachments, a copy of the Reply and attachments and a copy of these Reasons.
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