Singh v David Jones Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Singh v David Jones Pty Ltd [2023] NSWPIC 319
APPLICANT:	Jayson Singh
RESPONDENT:	David Jones Pty Ltd
Member:	Philip Young
DATE OF DECISION:	5 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; accepted claim for cervical and lumbar spine injuries; dispute regarding bilateral shoulder injuries; section 66 claim only; respondent takes issue with “nature & conditions” claim; discussion of Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos; Held – on the basis of the applicant’s statement, deficiencies in the respondent’s Independent Medical Examination report and the opinion of the applicant’s treating specialist that bilateral shoulder injuries established and matter remitted to the President of the Personal Injury Commission for referral to a medical assessor accordingly; claim for total right knee replacement surgery; applicant had prior history of niggling right knee pain due to osteoarthritis then specific incident in the course of her employment; Held – applicant a reliable historian and preponderance of medical opinion supports relationship between current need for surgery and incident at work; section 60 (5) declaration accordingly in favour of the applicant.
determinations made:	The Commission having considered this matter determines as follows: 1. Up until and on 29 July 2019 the applicant in the course of his employment with the respondent suffered injury to his lumbar spine, cervical spine and bilateral upper extremities (shoulders) as well as TEMSKI scarring. 2. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from the injuries described in 1. above. 3. The President’s delegate is requested to place before the Medical Assessor a copy of the Application, a copy of the Reply, a copy of the AALD and a copy of these Reasons for Decision.

STATEMENT OF REASONS

BACKGROUND

Jayson Singh (the applicant) is a 35-year-old man who was employed by David Jones Pty Limited (the respondent) as a logistic assistant and forklift driver at the respondent’s warehouse in Silverwater. He alleges a frank injury on 29 July 2019 whilst driving a forklift (injuries to lumbar spine and cervical spine when looking up to move a racking system out of a container). He also alleges injuries to his lumbar spine, cervical spine and bilateral upper extremities (shoulders) being an aggravation (etc) pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 Act (1987 Act) “due to the nature and conditions of his employment”.
The applicant’s claim pursuant to s 66 of the 1987 Act is the cervical spine, lumbar spine, TEMSKI/ scarring, left upper extremity and right upper extremity.

ISSUES

From the respondent’s perspective it is understood that the respondent does not dispute that the applicant injured his lower back. The dispute concerns the remaining body parts.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

This matter came for conciliation and arbitration hearing via MS teams on 9 May 2023. Mr Perry of counsel instructed by Mr Dous, solicitor, appeared for and with the applicant. Mr Styles of counsel instructed by Ms Doyle, solicitor, appeared for the respondent. An insurer representative (Carlin) was present.
The matter proceeded to conciliation and I was satisfied that I used my best endeavours to achieve resolution of the matter, to no avail. That being the case, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.

DOCUMENTS BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The following documents were in evidence before the Commission:
(a)    Application to Resolve a Dispute lodged 13 March 2023 and attachments (Application);
(b)    Reply lodged 3 April 2023 and attachments (Reply), and
(c)    Application to Admit Late Documents and attachments (AALD) lodged by the applicant’s solicitors on 4 May 2023.
There was insufficient time to proceed to arbitration on the day and accordingly written submissions were directed. Those submissions were lodged on 19 May 2023 (applicant), 25 May 2023 (respondent) and 2 June 2023 (applicant in reply).

ORAL EVIDENCE

No oral evidence was given.

DISCUSSION AND REASONS

The date of the applicant’s frank injury is 29 July 2019. The applicant refers to Dr Gehr’s report of 3 March 2022 who had before him a report dated 18 November 2019 from Dr Lim which confirmed that the applicant complained of neck, shoulder and back injuries “due to repetitive heavy lifting, carrying, bending and twisting at work”. As well as diagnosing cervical spine and lumbar spine radiculopathy, Dr Lim diagnosed bilateral shoulder strain.
Dr Gehr also referred to the report of the applicant’s treating spinal surgeon Dr Khong of 31 January 2020. The history given to Dr Khong was heavy work for two to three years and then the “forklift incident” about six months prior. In a report of 4 August 2022 Dr Lim attributes the injuries to the applicant’s work and confirms that the applicant’s employment was the main contributing factor to these injuries.
The applicant commenced work with the respondent in April 2017.[1] A first aid report form completed by the respondent’s nurse on 29 July 2019[2] supports injury to the neck and lower back. Right shoulder pain had been identified by the applicant’s physiotherapist Mr Yang, on 24 September 2019.[3]
[1] Applicant’s submissions at [14].
[2] AALD at page 10.
[3] Application at page 318.
There is no evidence that the applicant suffered any pain in these areas before commencing work with the respondent in April 2017. He resigned his employment on 26 August 2019[4] and he saw Dr Grant on 8 August 2019 and was referred to physiotherapy.
[4] Application at page 2 at [10].
In terms of credibility, the applicant correctly points to examinations of the applicant by Dr Powell on 20 March 2020, 22 September 2020 and 5 May 2022 which confirm that the applicant did not exaggerate or overreact and was “a most compliant and cooperative client”.[5]
[5] Applicant’s submissions at [23].
This Commission accepts, in relation to the applicant’s lumbar and cervical spines, the opinion of Dr Khong not only because he was the treating spinal surgeon but also because he saw the applicant 15 times and operated on the applicant on 28 January 2021. Dr Khong’s opinion on causation is supported by Dr Lim and Dr Gehr.
At examination by Dr Khong on 28 February 2020 pain was recorded radiating into the applicant’s left shoulder with “sharp pain left periscapular”.[6]
[6] Application at page 83.
The applicant was seen by Dr Soo on 24 February 2020. At that time, he was complaining of tenderness to the trapezius and posterior musculature of the right shoulder. Dr Soo recommended physiotherapy and conservative measures and his treatment seems to be concerned with the right shoulder which the applicant says exhibited “more significant symptoms”.
The insurer relied upon Dr Powell’s report to say[7] that Dr Powell:
“…considered that there was insufficient evidence to establish a causal link between the lumbar spine injury and your claimed neck and bilateral shoulder conditions”.
The applicant correctly points to the fact that he has never suggested that his neck and shoulder conditions are consequential upon his lumbar spine injury.[8]
[7] Application at page 15.
[8] Applicant’s submissions at [40].
Dr Powell in his first report[9] does not list the reports of the applicant except that this Commission notes that there is mention of Dr Khong’s conclusion and Dr Gehr’s whole person impairment assessment on page seven of that same report.[10]
[9] Consultation 22 September 2020 at Reply at page 7.
[10] Reply at page 13.
Dr Powell next saw the applicant on 20 April 2020 and again it is noted that apart from a reference to “… the documents provided”[11] and three radiological reports[12] there is no reference to the reasoning of Dr Khong or Dr Gehr.
[11] Reply at page 17.
[12] Reply at page 21-22.
It is, in my opinion, correct to say that Dr Powell’s lack of reference to the reasoning of Dr Khong or Dr Gehr makes his reports somewhat incomplete.
The first point made by the respondent is that a “claim for compensation in respect of the nature and conditions of employment has not been made”.[13] I would firstly say that as has been held at Presidential level, the legislation does not mention “nature and conditions of employment” as being a necessary ingredient for a claim, or indeed at all.[14]
[13] Respondent’s submission at [1].
[14] Sisters of St Joseph Aged Care Services (NSW) vSotiropoulos [2014] NSWWCCPD 23 (per Roche DP).
In Sotiropoulos a number of important points were made which are relevant to the respondent’s argument in this matter. First, the Commission is not bound by strict pleadings[15] but among other obligations must have regard to “the substantial merits of the case without regard to technicalities or legal forms”.[16] Second, consideration must be given to the history of the matter and opportunity for the respondent to have achieved procedural fairness.[17] The pleadings in this matter make it clear that the applicant is relying upon the nature of his work and the conditions under which he worked during his time with the respondent. Third, the respondent does not appear to have sought any further particulars of the cause of the injury[18] and at the teleconference no issue was raised regarding the pleadings or particulars.[19]
[15] Far West Area Health Services v Radford [2003] NSWWCCPD 10.
[16] Sisters of St Joseph Aged Care Services (NSW) vSotiropoulos [2014] NSWWCCPD 23 at [51].
[17] Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos [2014] NSWWCCPD 23 at [52].
[18] Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos [2014] NSWWCCPD 23 at [53].
[19] Sisters of St Joseph Aged Care Services (NSW) v Sotiropoulos [2014] NSWWCCPD 23 at [55].
The respondent claims that the claim form submitted by the applicant mentions only the frank incident of 29 July 2019 and in that document, as well as in the first aid report form of same date, reference is only made to the applicant’s neck and back.[20] I have already discussed above the references to the applicant’s shoulders and although there may have been some delay in reporting those injuries or recording those injuries, that is not necessarily fatal to the applicant’s case.
[20] Respondent’s submissions at pages 4-5.
The respondent also points to a clinical note of Dr Grant, general practitioner, of 8 August 2019 in which the applicant complained that on 29 July 2019 he suffered neck and lower back pain.
At paragraphs 8 to 19 of the respondent’s submissions the respondent goes into detail as to why the “nature and conditions” (for want of a better expression) allegation should be struck out or dismissed. The respondent’s submissions go on to quite correctly concede injury to the applicant’s lumbar spine and cervical spine as having occurred in a frank incident on 29 July 2019 but says that the evidence does not establish any injury to the shoulders as a result of the incident on 29 July 2019. The respondent points out that Dr Khong in a report of 5 August 2022[21] refers to his review of the applicant on 28 February 2020 when he gave a history of left side neck pain radiating to the left shoulder (not a discrete injury).[22] The same may be said of Dr Khong’s further report 20 May 2022.[23] The respondent makes the point that whilst Dr Gehr diagnoses right shoulder and left shoulder pathology in his report of 3 March 2022[24], his earlier report of 28 July 2020[25] makes reference only to the applicant’s neck and back.
[21] Application at page 63.
[22] Respondent’s submissions at [25].
[23] Application at page 70.
[24] Application at page 104.
[25] Application at pages 124-125.
There is in my view sufficient reference to the applicant’s left and right shoulder pathology together with the applicant’s statement dated 28 February 2023[26] and the opinion of Dr Gehr to support the view that on the balance of probabilities the applicant suffered injury to his cervical spine, lumbar spine and both shoulders by reason of his exposure to work up until and on 29 July 2019.

[26] See paragraphs 6, 7, 9, 11, 15 and 18.

FINDINGS

Up until and on 29 July 2019 the applicant in the course of his employment with the respondent suffered injury to his lumbar spine, cervical spine and bilateral upper extremities (shoulders) as well as TEMSKI scarring.
The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the applicant’s whole person impairment, if any, which results from the injuries descripted in one above.
The President’s delegate is requested to place before the Medical Assessor a copy of the Application, a copy of the Reply, a copy of the AALD and a copy of these Reasons for Decision.

[2023] NSWPIC 319

5 July 2023