State of New South Wales (Western Sydney Local Health District) v Moslemi
[2024] NSWPICPD 15
•12 March 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | State of New South Wales (Western Sydney Local Health District) v Moslemi [2024] NSWPICPD 15 |
APPELLANT: | State of New South Wales (Western Sydney Local Health District) |
APPELLANT’S INSURER: | Employers Mutual Limited as agent for the NSW Self Insurance Corporation |
FIRST RESPONDENT: | Mina Moslemi |
SECOND RESPONDENT: | Nepean Private Hospital (Healthscope Operations Pty Ltd) |
SECOND RESPONDENT’S INSURER: | AAI Ltd t/as GIO |
THIRD RESPONDENT: | State of New South Wales (Northern Sydney Local Health District) |
THIRD RESPONDENT’S INSURER: | QBE – TMF |
FILE NUMBER: | A1-W7627/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 12 March 2024 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal the Senior Member’s interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is granted. 2. The Certificate of Determination dated 24 April 2023 issued by the Senior Member is revoked. 3. The matter is remitted to the Workers Compensation Division Head to issue a new Certificate of Determination consistent with the determinations and remittals identified in paragraph [134] of my reasons. |
CATCHWORDS: | WORKERS COMPENSATION – Sections 4(a) and 4(b)(ii) of the Workers Compensation Act 1987 – whether the injury was a personal injury or an aggravation of a disease – Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd [1998] NSWCC 51; Rail Services Australia v Dimovski [2004] NSWCA 267 discussed and applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr J Gaitanis, counsel | |
| Bartier Perry Lawyers | |
| First Respondent: | |
| Mr L Morgan, counsel | |
| Law Partners / Withstand Lawyers | |
| Second Respondent: | |
| Ms B Brown, solicitor | |
| Hicksons Lawyers | |
| Third Respondent: | |
| Mr F Doak, counsel | |
| HWL Ebsworth Lawyers | |
DECISION UNDER APPEAL: | Moslemi v State of New South Wales (Northern Sydney Local Health District) & Ors [2023] NSWPIC 181 |
SENIOR MEMBER: | Ms K Haddock |
DATE OF MEMBER’S DECISION: | 24 April 2023 |
INTRODUCTION AND BACKGROUND
Ms Mina Moslemi (the first respondent) was employed as a midwife on a full-time basis by the State of New South Wales (Western Sydney Local Health District) (the appellant) at Auburn Hospital from 2007 to August 2015. She then worked on a casual basis for the State of New South Wales (Northern Sydney Local Health District), the third respondent, at the Royal North Shore Hospital (RNS) from January 2016 until December 2016 and concurrently worked part-time for Healthscope Operations Pty Ltd at Nepean Private Hospital (Nepean), the second respondent, from April 2016 until May 2017.
The first respondent alleged that, as a result of the physical and busy nature of the work with the appellant in the post-natal unit in 2013, she developed pain in her right shoulder and arm. She said that over the course of the following years, her symptoms in the neck and right shoulder were aggravated and she developed left shoulder symptoms because of her difficulties with her right arm, particularly when performing certain midwifery duties.
The first respondent made claims for compensation, which were disputed. Ultimately, on 13 May 2022 the first respondent made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act1987 (the 1987 Act) against the appellant as well as Nepean and RNS in respect of 29% whole person impairment, resulting from injuries to the cervical spine and both upper extremities. The first respondent nominated a deemed date of injury of 13 May 2022, or in the alternative 1 November 2013, which was the first date upon which she was incapacitated for work with the appellant.
Liability for the claim was disputed by all three employers and the matter proceeded to arbitration before a Senior Member of the Commission. The issues for determination were clearly identified in the Senior Member’s Certificate of Determination, but can be briefly described as:
(a) whether the first respondent suffered injuries as alleged (or, in respect of the left shoulder symptoms, a consequential condition in the left shoulder);
(b) whether the first respondent’s employment was a substantial, or the main, contributing factor to the injuries;
(c) the degree of any whole person impairment, and
(d) if the injuries consisted in a disease or aggravation of a disease, which employer was the last employer for the purposes of the application of ss 15 and/or 16 of the 1987 Act.
Nepean and RNS also raised issues as to whether the first respondent had given notice of injury and made her claim for compensation within the prescribed statutory time frames. The appellant conceded that the first respondent suffered a right shoulder injury in November 2013 in its employ.
The Senior Member determined that the first respondent suffered injury to the cervical spine and right shoulder on 1 November 2013 (that being the first date of incapacity) in the course of employment with the appellant and a condition in the left shoulder as a consequence of the right shoulder injury. The Senior Member further determined that the first respondent suffered from a disease condition in her cervical spine and both shoulders, which had been aggravated by her employment with the appellant, Nepean and RNS. She found that, in accordance with s 4(b)(ii) of the 1987 Act, the first respondent’s employment with the appellant, Nepean and RNS was the main contributing factor to the aggravation of the disease condition in the first respondent’s cervical spine and both shoulders.
The Senior Member further found that Nepean was the last employer who employed the first respondent in employment that was a substantial contributing factor to the injuries and the deemed date of the aggravation of the disease condition was 13 May 2022 (the date the claim pursuant to s 66 of the 1987 Act was made). She remitted the lump sum claim to the President of the Commission for referral to a Medical Assessor for assessment of the whole person impairment of the cervical spine, right upper extremity and left upper extremity (shoulders) as a result of injury on 1 November 2013 and for assessment of those body parts resulting from injuries with a deemed date of 13 May 2022.
The appellant appeals the decision, asserting that the Senior Member erred in finding that the first respondent suffered a personal injury to the cervical spine within the meaning of s 4(a) of the 1987 Act on 1 November 2013 and by failing to find that the first respondent’s injury was wholly attributable to the aggravation of a disease process.
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.”
The parties are in agreement that the appeal can be determined on the basis of the documents and their submissions and that there is no need for an oral hearing.
I have had regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; 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.
Whether the decision appealed against is an interlocutory decision
Section 352(3A) of the 1998 Act provides that:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant asserts that the Senior Member’s decision is not interlocutory and so leave to appeal pursuant to s 352(3A) of the 1998 Act is not required. In the alternative, the appellant submits that, in the event the decision is interlocutory in nature, leave should be granted. The appellant observes that the Medical Assessor will be required to assess the cervical spine and both shoulders in respect of different dates of injury which involves consideration of any deduction from the degree of impairment for a previous injury. The appellant says that it is thus a fundamental requirement to reach finality in respect of the dispute about the injury to the cervical spine on 1 November 2013 before the medical assessment takes place.
The respondents had the opportunity to make submissions in reply to these submissions but did not do so.
There have been a number of Presidential decisions in which it was determined that findings of injury prior to a referral for assessment by a Medical Assessor are interlocutory decisions.[1] Further, in similar circumstances, in South Western Sydney Area Health Service v Edmonds,[2] McColl JA (with Tobias JA agreeing) made the following observation:
“South Western Sydney Area Health Service seeks leave to appeal pursuant to s 353 of the [1998 Act] from a decision of Deputy President Fleming of the Workers Compensation Commission of New South Wales in turn dismissing an appeal from a determination of Arbitrator Wynyard … Leave is required because the Arbitrator’s determination, and hence the Deputy President’s decision, was interlocutory.”[3]
[1] Moore v Greater Taree City Council [2009] NSWWCCPD 17; Mosawi v Baron Forge (NSW) Pty Ltd [2022] NSWPICPD 48; DGL (Aust) Pty Ltdv Martino [2023] NSWPICPD 30.
[2] [2007] NSWCA 16 (Edmonds).
[3] Edmonds, [12].
I am satisfied that the decision the subject of this appeal is an interlocutory decision, and the appellant requires leave to bring the appeal at this stage. I accept the appellant’s submission that it is desirable to grant leave to appeal as it is the more efficient and effective manner in which the dispute can be determined. Leave to appeal the decision pursuant to s 352(3A) of the 1998 Act is therefore granted.
THE EVIDENCE
The statement evidence
The appellant relied on lay statements from Nepean’s employees Ms Annette Nugent, the Nurse Unit Manager of Nepean’s Women’s Health Unit[4] and Ms McEvoy-Williams, the Director of Nursing.[5] Their evidence relates to the question of the first respondent’s credibility and the allegations that the first respondent failed to comply with the time frames for reporting her injuries and making a claim for compensation. The findings made by the Senior Member in respect of those matters are not the subject of this appeal and it is thus not necessary to summarise that evidence.
[4] Nepean’s reply to Application to Resolve a Dispute (reply), pp 357–362.
[5] Nepean’s reply, pp 363–367.
The first respondent’s statements
The first respondent provided a statement dated 13 February 2020.[6] She denied any other injuries prior to those the subject of these proceedings. She described the nature of her duties as a midwife. These involved providing care and assistance to women in labour, antenatal and postnatal care, physical exertion such as making beds, reaching medical equipment on high shelves, lifting, moving and pushing women who were heavily pregnant, as well as working in awkward positions while helping new mothers to breastfeed. She added that she was required to work long hours and there were staff shortages.
[6] Application to Resolve a Dispute (ARD), pp 1–6.
The first respondent asserted that, as a result of performing those duties for the appellant in about late 2013, when the appellant was particularly short-staffed, she began to experience aching in her right shoulder and arm. She said that on one night, after having delivered six babies, her right shoulder symptoms were particularly debilitating, so she consulted her general practitioner on 3 November 2013.
The first respondent indicated that over the course of the following few years, her right shoulder and neck became increasingly strained and sore, in particular when performing sessions of up to an hour in length instructing mothers in baby feeding. She said that this required her to hold the newborn in an awkward position for a fixed period. She also said that, as a result of the right shoulder symptoms, she relied more on her left shoulder for this and other tasks. She noticed that she began to experience left shoulder symptoms, which worsened over time.
The first respondent stated that, by the end of 2016, she was in severe pain with symptoms in both shoulders, radiating into her arms and neck. She sought treatment, and a CT scan and an MRI scan were performed in March 2017. The first respondent described “unbearable” symptoms of increasing numbness and pins and needles in her left hand, which prompted her to submit her resignation from her employment with Nepean in April 2017, ceasing work in May 2017.
She said that during 2017, she was being treated by Dr Raymond Cook, neurosurgeon, who recommended surgery to her neck, which was undertaken on 14 August 2017. She indicated that she gained no real relief from the surgery. She said she underwent a pain management program and received conservative treatment, but she continued to experience pain in both shoulders and her neck. The first respondent listed her ongoing disabilities and the limitations on her activities of daily living.
The first respondent provided a further statement dated 4 May 2021,[7] in which she gave more extensive detail of what was required of her in performing her duties with the appellant. She said that, as a result of her employment she suffered injury to her neck and right shoulder and developed left shoulder pain from using the left arm because of the severe right arm symptoms. She referred to various further tasks that she performed, including having to attend to tasks alone which, she said, should have been taken care of by two people. She provided an example of an occasion when a mother had fainted, and she had to move the mother from the bathroom to her bed without assistance.
[7] ARD, pp 7–14.
The first respondent made a third statement dated 14 October 2021,[8] in response to the statement of Ms Nugent. She denied the various matters asserted by Ms Nugent.
[8] ARD, pp 15–18.
The first respondent provided an overview of the working conditions, which included staff shortages and high demands to care for more than the standard number of patients. She added that there were times when she could not take her meal break.
The first respondent indicated that in November 2016 she sought four weeks’ leave. She described the significant difficulty she experienced in trying to have that leave approved. She added that, on 16 February 2017, when she was recovering from surgery (unrelated to the work injuries the subject of this dispute), Ms Nugent insisted that she return to work. She said she returned to work on 24 February 2017 despite the fact that the recovery period for her surgery was three months, which adversely affected her health.
The first respondent stated that there were high admissions in the summer of 2017 and the work was heavier. She said that she struggled physically to perform the work and in April 2017 she began to experience worsening headaches, neck pain, and pins and needles and numbness in the left hand. She indicated that she consulted her general practitioner, Dr Sanjeevani Negulandran in early May 2017, who referred her to Dr Cook. She reported her injuries and resigned her employment.
The documentary evidence
The appellant’s AIMS incident detail form
The appellant’s AIMS incident detail form completed on 4 November 2013 referred to an incident on 29 October 2013. The first respondent said that she was working a busy night shift during which she was assisting six new mothers with breast feeding. The first respondent reported numbness in the right hand and deep pain in her right arm and shoulder. She said she had already verbally reported her injury but did not have time to fill in the incident report form. The first respondent recorded that she used pain relief and heat-packs, but her symptoms persisted. The first respondent reported that she was still experiencing pain and was going to consult her doctor that day. The form included details noting that the affected areas were the neck, shoulder and right arm and the symptoms were attributed to prolonged and repetitive movement.[9]
[9] Appellant’s reply, pp 373–374.
The appellant’s injury notification form
The appellant’s injury notification form, completed by Ms Sandra de Rossi, was undated but was stamped as being received by the appellant’s insurer on 11 November 2013. It recorded the injury details as injury to the neck, shoulder and arm occurring on 29 October 2013 and described as a muscle/tendon strain caused by “Muscular stress by handling objects other than lifting, carrying or putting down.[10]
[10] Appellant’s reply, pp 379–381.
The first respondent’s letter of resignation
The first respondent wrote to Ms Nugent on 12 May 2017 in the following terms:
“Unfortunately due to physical damages to my spinal cord and an acquired neck arthritis, it has become difficult and painful for me to continue performing midwifery care. And so, I am writing to you to propose my [resignation] for the position of midwifery. I will stop work by 22nd of May 2017 as I need to take a break for at least a number of months and take a procedure due to the issue. I would like to mention that during the working at Nepean Private Hospital, I always enjoyed working with the friendly staff and appreciated team working that took place. I also appreciate the support always provided by managers and educators.”[11]
[11] Nepean’s reply, p 47.
The relevant medical evidence
The relevant clinical notes from the Hills Medical & Dental Centre (also referred to as the Castle Towers Medical Centre)
The clinical notes from the Hills Medical & Dental Centre commencing from 1 April 2007 were in evidence.[12] Relevantly, on 4 November 2013, the first respondent attended Dr Fahima Satter, general practitioner, complaining of a very heavy workload requiring her to perform heavy lifting, and work as a midwife and lactation consultant over the previous six months. Dr Satter prescribed rest, medication and voltaren gel and referred the first respondent for an ultrasound investigation. The first respondent attended again on 8 November 2013 in relation to “chronic bursitis over her R shoulder.” “W/C” was noted by Dr Satter. The ultrasound results were reported on 9 November 2013, when the first respondent again attended. The history was recorded by Dr Bon Bon Lee of increased workload, insufficient staffing numbers and noted that the first respondent was required to hold the baby’s head for support while the mother was breast-feeding. The ultrasound results indicated right shoulder tendinopathy, bursitis and possible secondary impingement. On 11 November 2013, Dr Satter noted the first respondent’s symptoms were worse and she was unable to move her right arm. On 14 November 2013, the first respondent complained to Dr Kyorang Kim of neck pain.
[12] ARD, pp 154–169.
Dr Satter completed a questionnaire at the request of the appellant on 5 December 2013.[13] In response to the queries posed, Dr Satter provided a diagnosis of “R SubAcromion Bursitis.”
[13] Appellant’s reply, pp 392–393.
Dr Satter also completed WorkCover NSW – Certificates of capacity on 4 November 2013[14] and 12 December 2013,[15] in which she referred to the date of injury as 29 October 2013 and diagnosed a sprained right shoulder. In the certificate dated 12 December 2013 she added “? bursitis”.
[14] Appellant’s reply, pp 375–377.
[15] Appellant’s reply, pp 394–395.
The first respondent continued to consult the practice during January and February 2014 in relation to shoulder complaints. On 4 February 2014, the first respondent requested a “RTW” certificate, and a final workers compensation certificate was issued.
The first respondent continued to consult the practice in respect of non-related ailments. On 19 July 2016, the first respondent attended for review of her shoulder and elbow complaints as well as an ankle condition (not claimed in these proceedings). The notes recorded that the conditions were all work-related. The first respondent was referred for radiological investigations. On 14 February 2017, she attended complaining of neck pain and was tender over the facet joint and paravertebral muscles. On 5 March 2017, her neck pain was noted to be stable, but her left arm was weak and tingling.
The first respondent’s neck pain was regularly reviewed thereafter, with radiculopathy and advanced degenerative changes noted from 16 May 2017.
Dr Con Kafataris, injury management consultant
Dr Con Kafataris was asked to review the first respondent for the purpose of ascertaining her fitness for work.[16] He reported on 20 December 2013. He recorded a history of the first respondent assisting new mothers with breast feeding which required her to hold the babies to the mothers’ breasts for a prolonged period of time. Dr Kafataris diagnosed right shoulder pain, described as “fairly typical” features of subacromial or rotator cuff pathology, some impingement and a less likely possibility of an acromioclavicular joint injury.
[16] ARD, pp 70–71.
Dr Sanjeevan Nagulendran, general practitioner
Dr Sanjeevan Nagulendran compiled a report dated 22 December 2019 directed to “whom it may concern.”[17] He advised that he had been the first respondent’s general practitioner since 2013. He indicated that, in 2013, she presented with right shoulder and neck pain, which had significantly worsened by 2017. He described the symptoms as chronic neck, shoulder and arm pain on the left side, with left limb weakness and sensory loss. Dr Nagulendran opined that the pain emanating from the disc prolapse in the first respondent’s cervical spine was caused by her work as a midwife, involving lifting and other pressures of that work. He said that the pain commenced from 2013 in her employment with the appellant, with symptoms building over time. He was of the view that the injuries were a direct result of the first respondent’s employment with the appellant.
[17] ARD, pp 102–103.
Dr Raymond Cook, neurosurgeon
Dr Raymond Cook reported to Dr Nagulendran on 20 June 2017 following consultations with the first respondent.[18] He referred to the first respondent’s complaint as “left-sided brachialgic pain”, which he thought may have been consistent with cervical radiculopathy emanating from the C5 and C6 levels of the cervical spine, but certainly involving the C6 disc. He described the pain as commencing from the top of the scapula in the humeral region to the forearm and radiating into the thumb and index finger, which he said were classical symptoms of the involvement of the C6 disc. He noted that the symptoms had been present for six months and were mostly scapular pain with no symptoms on the right side. He suggested the first respondent undergo further investigations and was of the view that she required a foraminotomy on the left side in order to address the C5 and C6 radiculopathy.
[18] Appellant’s reply, pp 95–96.
Dr Cook reported again to Dr Nagulendran on 6 October 2017 following the foraminotomy.[19] He advised that there was nothing further that he could offer the first respondent and that he had referred her to a pain physician for further assessment and treatment.
[19] Appellant’s reply, pp 92–93.
Dr Mark Liew, rheumatologist
The first respondent was referred to Dr Mark Liew by Dr Nagulendran. Dr Liew reported to Dr Nagulendran on 22 January 2018.[20] He recorded a history of the first respondent experiencing right elbow pain during her employment as a midwife in 2014 and that she developed increasing pain and stiffness in the neck in 2016, together with symptoms of left cervical neuropathy. He noted that the radiological investigations disclosed degenerative changes in the cervical spine with facet joint disease and disc space as well as foraminal narrowing, particularly at the C5/6 level on the left. Dr Liew recorded the treatment provided to the first respondent and the persisting symptoms in the cervical spine, left and right shoulders, both arms and the right elbow. He provided a diagnosis of well-established degenerative disease in the cervical spine, significant left cervical neuropathy, right lateral epicondylitis and degenerative disease of the rotator cuff.
[20] ARD, pp 97–98.
Associate Professor Michael Ryan, orthopaedic and spinal surgeon
The first respondent’s legal representatives qualified A/Prof Michael Ryan to provide an opinion in respect of the first respondent’s injuries. He provided a report dated 3 April 2019.[21] He noted the first respondent’s work history in Australia as a midwife.
[21] ARD, pp 51–59.
A/Prof Ryan recorded that the first respondent attended her general practitioner on 3 November 2013 in respect of right shoulder and right arm pain in the context of performing heavy physical work with the appellant while the appellant was understaffed. He referred to the duties the first respondent was required to perform as a post-natal nurse and in particular a night shift in 2013 attending to six births which precipitated the right shoulder symptoms, as well as having to hold the babies in a fixed position when teaching the mothers to breast feed. A/Prof Ryan took the history that the first respondent began to use her non-dominant left shoulder more frequently because of the right shoulder pain and in 2016 began to feel pain in the left side of the neck, left shoulder and left arm.
A/Prof Ryan reviewed the CT scan report of the first respondent’s cervical spine undertaken on 1 March 2017, the MRI scan report of the cervical spine undertaken on 6 March 2017 and the results of the electro-physiological (nerve conduction) studies of both upper limbs. He noted that the first respondent’s general practitioner, Dr Nagulendran, had referred the first respondent to Dr Cook, who assessed her on 20 June 2017 and recorded left cervical radiculopathy and brachialgic pain probably involving the C6 level of the cervical spine and potentially the C5 level. A/Prof Ryan also noted that Dr Cook recorded the first respondent’s complaints of pain around the top of the left scapula, left humeral region of the left forearm, radiating into the left thumb and index finger. A/Prof Ryan noted Dr Cook’s findings on examination and his diagnosis of a definite left sided C6 dysesthesia.
A/Prof Ryan observed that, following the results of the nerve conduction studies, Dr Cook recommended that the first respondent to undergo a left-sided C5/6 foraminotomy, which was performed on 14 August 2017. He noted that the first respondent’s symptoms persisted post-surgery. A/Prof Ryan reviewed a further MRI scan of the cervical spine and upper limb nerve conduction studies and Dr Cook’s recommendations in respect of further treatment. He physically examined the first respondent.
A/Prof Ryan considered that the first respondent’s symptoms did not arise from a specific incident but were attributable to the physical activities she was required to perform in her employment. He opined that:
“[The first respondent’s] chief injuries have been neck pain and a reduction in the range of motion of both shoulders, more so on the left-hand side than on the right.
These have arisen as a result of her physical exertions at work, when employed as a Mid-wife at [the appellant], [RNS] and [Nepean].”[22]
[22] ARD, p 56, report, p 6, [3].
A/Prof Ryan noted that the first respondent’s neck and left arm symptoms became apparent in 2016. He concluded that the first respondent’s pain initially arose in her neck and radiated to her (dominant) right arm, then, when the first respondent began to use her left arm to protect the right arm and alleviate those symptoms, her left arm worsened.
A/Prof Ryan assessed the first respondent’s capacity for work and her whole person impairment, which he calculated as 29%.
Dr J. Brian Stephenson, orthopaedic surgeon
Dr J. Brian Stephenson was asked by the appellant to examine the first respondent and provide an opinion. He reported on 19 August 2019.[23] He noted that the first respondent had made a claim on 19 July 2019 in respect of 29% whole person impairment resulting from injuries sustained to both shoulders and her cervical spine caused by the “nature and conditions” of the first respondent’s employment between 2007 and 2017. He described the duties as involving physical demands involving delivering babies and educating new mothers on feeding their babies. He further noted that the first respondent asserted a consequential injury to the left shoulder because of increased use of the left shoulder as a result of the right shoulder injury.
[23] ARD, pp 60–69.
Dr Stephenson recorded a background summary of the first respondent’s training and her employment with the appellant, RNS and Nepean and the duties she was required to perform in that employment. He reviewed the treatment provided by Dr Cook, Dr Nagulendran and Dr Liew, noting that both Dr Liew and Dr Nagulendran referred to advanced degenerative disease in the cervical spine. Dr Stephenson recorded the findings reported in the radiological investigations. He examined the first respondent and assessed her whole person impairment as 28%, with no deduction for any pre-existing impairment.
Dr Stephenson diagnosed bilateral soft tissue injury to both shoulders (in the absence of radiological reports), together with a surgical decompression of the cervical spine. He accepted that the first respondent had suffered injuries to both shoulders and the cervical spine. He considered that the injuries were consistent with the nature of the work the first respondent performed, and that the conditions in both shoulders and the cervical spine constituted a disease of gradual process which was aggravated, accelerated or deteriorated by her working conditions. He was of the view that the first respondent’s employment was the main contributing factor to the injury. He expressed the view that the “predominant employer” was the appellant, noting that the respondent worked less hours with RNS.
Dr Stephen Rimmer, orthopaedic surgeon
Dr Stephen Rimmer was qualified by Nepean to provide an opinion in respect of the first respondent’s allegations of injury. He provided a report dated 24 March 2021[24] and a supplementary report dated 30 August 2021 following receipt of various radiological investigations.[25] He diagnosed an abnormal illness behaviour and thought a diagnosis of a disease of gradual onset was “highly unlikely”. He commented that the question of whether the employment was the main contributing factor to a disease or a substantial contributing factor to the injury was “not applicable.” He did not consider that the nature of the work performed by the first respondent at Nepean was the main contributing factor to the disease and observed that the disease was consistent with constitutional degenerative change.
[24] Nepean’s reply, pp 368–373.
[25] Nepean’s reply, pp 13–15.
THE LEGISLATION
Section 4 of the 1987 Act provides:
“4 Definition of ‘injury’
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) … .”
Section 16 of the 1987 Act provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(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 that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.
(2) Any employers who, during the 12 months preceding a worker’s death or incapacity or the date of the claim (as the case requires), employed the worker in any such employment shall be liable to make to the employer by whom compensation is payable such contributions as, in default of agreement, may be determined by the Commission.
(2A) …
(3) In this section, a reference to an injury includes a reference to a permanent impairment for which compensation is payable under Division 4 of Part 3.
(4) ...”.
THE SENIOR MEMBER’S REASONS
The Senior Member identified the issues requiring determination. She noted that the first respondent advised that the date of injury was either 1 November 2013 (the first date of the first respondent’s incapacity) or 19 June 2019 as against the appellant (the date the first claim was made against that entity) or 13 May 2022, which was the date the claim for permanent impairment was made against the appellant, RNS and Nepean. She further noted that the first respondent asserted a frank injury or, in the alternative a “disease” injury involving her neck, right shoulder and a consequential condition in the left shoulder.
The Senior Member conducted a detailed review of the evidence and summarised the submissions of the parties. She noted that the appellant conceded that the first respondent had suffered an injury to her right shoulder, pleaded as 1 November 2013 (the first date of incapacity), however, the date of injury was recorded in the evidence as 29 October 2013. She further noted that the appellant disputed injury to the right arm (as opposed to the right shoulder) and cervical spine.
The Senior Member determined that she was satisfied that the first respondent also injured her neck and right arm on 1 November 2013. She referred to the AIMS incident detail form and the injury notification form, which she noted were contemporaneous documents describing injury to the neck, shoulder, and right arm. She further referred to Dr Nagulendran’s report in which he advised that the first respondent presented with neck and right shoulder pain in 2013.
The Senior Member turned to the first respondent’s statement evidence in which the first respondent complained of a gradual onset of neck and right shoulder pain leading up to 1 November 2013, and that the appellant had been short staffed over the previous months. The Senior Member noted that the first respondent’s evidence about staffing levels and her evidence that she experienced pain in her right shoulder and right arm was uncontradicted by other evidence, and was supported by the details in the AIMS incident detail form.
The Senior Member referred to the clinical entries in the Hills Medical & Dental Centre on 4 November 2013, when the first respondent complained of her workload over the last six months, and the entry on 11 November 2013, when it was noted that the first respondent was unable to move her right shoulder.
The Senior Member accepted the first respondent’s assertion that she relied more heavily on her left arm because of the right shoulder symptoms. She reasoned that the first respondent continued to work as a midwife, and the nature of her duties with all three employers would require use of both arms. She noted that that evidence was uncontradicted. The Senior Member added that A/Prof Ryan supported the notion that the left shoulder condition was a condition consequent upon the right arm injury and that Dr Stephenson “did not discount [that] possibility.”[26] She noted that Dr Stephenson was of the view that the left shoulder symptoms resulted from the nature and conditions of the first respondent’s employment.
[26] Moslemi v State of New South Wales (Northern Sydney Local Health District) & Ors [2023] NSWPIC 181 (reasons), [336].
The Senior Member concluded that she was satisfied that the first respondent sustained a consequential condition in her left shoulder, as well as injuries to her neck and right shoulder in the employ of the appellant. She determined the deemed date of injury to be 1 November 2013, which was the first respondent’s first date of incapacity.
The Senior Member observed:
“If the [first respondent] has sustained a ‘disease injury’, then liability falls on the employer that last employed her in employment to the nature of which the disease, or the aggravation, acceleration, exacerbation or deterioration of the disease is due. For convenience, I will use the term ‘aggravation’ in these reasons.”[27]
[27] Reasons, [337].
The Senior Member referred to the Court of Appeal authority in Taylor v J & D Stephens Pty Ltd,[28] in which Simpson AJA observed that a “disease injury” requires the existence of a “disease”, that the disease was contracted or aggravated (etc) in the course of employment and the employment was the main contributing factor to the contraction or aggravation (etc) of the disease.
[28] [2018] NSWCA 267 (Taylor), [33].
The Senior Member noted that Nepean submitted that there was no contemporaneous evidence to support the notion that the work performed by the first respondent with Nepean or RNS increased her symptoms, and that some evidence of a deterioration or aggravation of degenerative changes would be expected. The Senior Member reasoned that in Taylor, it was made clear that the absence of contemporaneous complaint was not determinative of whether there was an injury. She referred to McColl AP’s observations in Taylor that although there were no contemporaneous complaints of injuries or symptoms in the period in which the worker was employed, it was sufficient to establish a disease injury where there was uncontroverted medical opinion that the type of work led to an acceleration (or aggravation etc) of a degenerative condition and the worker gave evidence of the nature of the heavy or arduous work.[29]
[29] Taylor, [3]–[5].
The Senior Member observed that, in the present case, there was evidence from both A/Prof Ryan and Dr Stephenson that supported the proposition that the first respondent’s duties with all three employers aggravated her disease condition. The Senior Member pointed out that there was no evidence that contradicted the first respondent’s description of the duties she performed.
The Senior Member pointed out that A/Prof Ryan was of the view that the first respondent’s injuries resulted from the physical nature of the employment with all three employers and that Dr Stephenson opined that the injuries were consistent with the nature of the first respondent’s work and could be regarded as an aggravation of a disease of gradual process. She noted that Dr Stephenson was of the view that the employment was the main contributing factor to the aggravation and that he had pointed out that there was no other explanation.
The Senior Member rejected the opinion of Dr Rimmer. Her failure to accept Dr Rimmer’s opinion is not challenged on the appeal so that it is not necessary to discuss the Senior Member’s finding in respect of that evidence.
The Senior Member referred to and quoted from the decision of AV v AW,[30] in which Snell DP considered s 4(b)(ii) of the 1987 Act and the various authorities in respect of a determination as to whether the employment was a main contributing factor to an aggravation of the injury.
[30] [2020] NSWWCCPD 9.
The Senior Member concluded that, on the basis of the evidence about the nature of the employment with all three employers, together with the evidence of A/Prof Ryan and Dr Stephenson, she was satisfied that the first respondent’s employment with the appellant, Nepean and RNS was the main contributing factor to the aggravation of a disease in the first respondent’s cervical spine and the left and right shoulders. The Senior Member referred to Dr Stephenson having nominated the appellant as the “predominant employer” but reasoned that the deemed date of injury is provided for in s 16 of the 1987 Act and dictates that the deemed date of injury is the date of death or incapacity, or if death or incapacity has not resulted from the injury, it is the date the claim is made.
The Senior Member concluded that the last employer who employed the first respondent in employment that was a substantial contributing factor to the aggravation of the disease was Nepean. She said that the deemed date of injury in respect of the aggravation of the disease was 13 May 2022, which was the date the lump sum claim was made.
The Senior Member proceeded to determine the issue of whether the first respondent had complied with the time requirements within which she was required to give notice of the injury and make her claim. She concluded those issues in favour of the first respondent. Those findings are not challenged in this appeal.
The Senior Member concluded that:
“(a) The [first respondent] did not fail to give notice of injury or make a claim on either [Nepean or RNS], as required by ss 254 and 261 of the 1998 Act.
(b) The [first respondent] sustained injury to her right shoulder, cervical spine and consequential condition of her left shoulder on 1 November 2013, arising out of or in the course of her employment with the [appellant].
(c) The [first respondent] sustained injury to her right shoulder, cervical spine and left shoulder, deemed to have happened on 13 May 2022, consisting in the aggravation, acceleration, exacerbation, or deterioration of a disease, arising out of or in the course of her employment with [Nepean].
(d) The [first respondent] sustained injury to her right shoulder, cervical spine and left shoulder, deemed to have happened on 13 May 2022, consisting in the aggravation, acceleration, exacerbation or deterioration of a disease, arising out of or in the course of her employment with [RNS].
(e) [Nepean] was the employer who last employed the [first respondent] in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease.”[31]
[31] Reasons, [364].
The Certificate of Determination issued on 24 April 2023 records:
“The Commission determines:
1. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a)Date of injury: 1 November 2013
(b)Body systems/parts:
(i)Cervical spine
(ii)Right upper extremity (right shoulder)
(iii)Left upper extremity (left shoulder)
(c)Method of assessment – whole person impairment.
2. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a)Date of injury: 13 May 2022 (deemed)
(b)Body systems/parts:
(i)Cervical spine
(ii)Right upper extremity (right shoulder)
(iii)Left upper extremity (left shoulder)
(c)Method of assessment – whole person impairment.
3. The documents to be reviewed by the Medical Assessor are:
(a)Application to Resolve a Dispute and attached documents;
(b)[Appellant’s] Reply and attached documents;
(c)[RNS’s] Reply and attached documents, and
(d)Application to Admit Late Documents dated 15 December 2022 and attached documents (Reply) filed by [Nepean].”
GROUNDS OF APPEAL
The appellant informs that the appeal is limited to allegations of error on the part of the Senior Member in respect of her finding that the first respondent suffered injury to her cervical spine on 1 November 2013. The appellant brings the following three grounds of appeal:
(a) Ground One: The Senior Member erred in finding that the first respondent sustained a personal injury to her cervical spine on 1 November 2013, arising out of or in the course of her employment with the appellant being an error of mixed fact and law.
(b) Ground Two: The Senior Member made an error of fact and law in that she overlooked and failed to consider and give appropriate weight to the evidence supporting that any cervical spine injury was consistent only with a disease of gradual process which had been aggravated by the working conditions.
(c) Ground Three: The Senior Member made an error of law in that she failed to provide adequate reasons for her decision that the first respondent sustained a personal injury to the cervical spine on 1 November 2013.
SUBMISSIONS
Nepean was required to file any opposition to the appeal by 26 June 2023. No Notice of Opposition was received by the Commission by that date. In response to an email sent by the Commission on 27 June 2023, on 28 June 2023 Nepean advised that:
“We are instructed to advise the Commission [Nepean] supports the decision of Senior Member Haddock. [Nepean] also supports the submissions filed in opposition by the [first respondent] and [RNS] arguing the appeal should be dismissed.”
The following summary is therefore limited to the submissions made by the appellant, the first respondent and RNS.
As to Ground One
The appellant’s submissions
The appellant asserts that it was not open to the Senior Member to find that the first respondent suffered a personal injury to the cervical spine on 1 November 2013. The appellant points to the Senior Member’s reliance in her statement of reasons on the details in the AIMS incident detail form (reasons at [96], [97] and [99]), the injury notification form (reasons from [101] to [103]) and the first respondent’s statement evidence (reasons from [49] to [52]).
The appellant submits that there is no mention of neck pain in the general practitioner’s clinical notes “up to the first consultation … on 3 November 2013”.[32] The appellant refers to the Senior Member’s reasons at [52] in which the Senior Member observed that over the following few years, the first respondent continued to perform physically demanding duties and experienced symptoms that were focussed on the right shoulder and neck. The appellant stresses that the performance of those duties was “over the next few years.”[33]
[32] Appellant’s submissions, [34].
[33] Appellant’s submissions, [34].
The appellant points to the first respondent’s evidence that she relied more heavily on her left arm to accommodate the right arm symptoms and developed left shoulder symptoms.
The appellant contends that all of the evidence relied upon by the Senior Member was inadequate to form a basis for the conclusion that the first respondent suffered a personal injury to her cervical spine on 1 November 2013. The appellant submits that in the context of numerous references to the right shoulder injury,
“Other than the bare references to ‘neck’ in the AIMS Incident Detail Form and the Injury notification form, there are no other contemporaneous references to cervical spine pain or injury in 2013.”[34]
[34] Appellant’s submissions, [38].
The appellant asserts that it was only after the first respondent left the employ of the appellant and worked elsewhere as a midwife that complaints in relation to the cervical spine, which led to the surgery, were reported. The appellant acknowledges that a note may have been recorded of a complaint of neck pain when the first respondent was employed by the appellant but asserts that such a notation is insufficient to support that an identifiable pathological change occurred as a result of a personal injury. The appellant contends that it is entirely conceivable that the neck pain was caused by tension or referred pain from the right shoulder injury.
The appellant says that, although the AIMS incident detail form made reference to injury to the neck, right shoulder and arm, the account given by the first respondent in that document in her own words significantly makes no mention of the neck. The appellant adds that, while the injury notification form records injury to the neck, shoulder and arm, the document was not completed by the first respondent, it is unclear as to the source of the information recorded in the document, and the document is not signed by or on behalf of the appellant. The appellant says that it submitted to the Senior Member that that evidence should be treated with caution, as it simply refers to neck pain, without explanation. The appellant also refers to the injury notification form in which there was a reference to the neck but says that certain codes were endorsed on the form, and it is unknown what those codes meant.
The appellant submits that the notations in the forms are inconsistent with the first respondent’s own account recorded in the AIMS incident detail form and with the initial medical certificate.
The appellant asserts that the only mention of symptoms in the neck in the clinical notes at the relevant time was on 14 November 2013, which did not refer to any injury, and says that the Senior Member did not mention that entry at all. The appellant submits, therefore, that the Senior Member’s summary of the evidence does not support the existence of neck symptoms at the time of the first respondent’s incapacity. The appellant adds that the Senior Member failed to address the questionnaire completed by Dr Satter dated 5 December 2013, which simply described the first respondent’s injury as right subacromial bursitis caused by continuous lifting. The appellant asserts that:
“The Senior Member has not demonstrated that there is an identifiable injury to the neck in or about October/November 2013 and appears solely reliant upon a complaint of pain in the neck at about that time.”[35]
[35] Appellant’s submissions, [46].
The appellant says that, in her statement evidence (which was noted by the Senior Member), the first respondent described the nature of her employment duties which led to injuries to her neck and both shoulders. The appellant submits that “this must be taken as a reference to the entirety of her employment at the three hospitals.”[36] The appellant also refers to the first respondent’s statement evidence wherein she said that she experienced intense symptoms in her right shoulder and right arm in 2013 and from 2015 performed physically taxing work with aching in her right shoulder and neck. The appellant further refers to the first respondent’s evidence in which the first respondent stated:
“The intensity of my physical duties was compounded by the fact that [the appellant] was severely understaffed over a period of several months in 2013. … As I had so much work and due to the chaotic nature of the birth unit, I was afforded little time to think about my neck pain, bilateral shoulder pain and headaches and I relied upon taking Panadol and anti-inflammatories to get through my shift.”[37]
[36] Appellant’s submissions, [48].
[37] First respondent’s supplementary statement dated 4 May 2021, ARD, p 9, [17].
The appellant asserts that the Senior Member’s summary of that evidence constituted a fundamental misreading of the evidence. The appellant contends that there is no evidence that the first respondent’s incapacity on 1 November 2013 was attributable to anything other than the right shoulder condition.
The appellant submits that neither A/Prof Ryan nor Dr Stephenson support the occurrence of a frank injury to the neck in 2013, except in that Dr Stephenson opined that the first respondent developed cervical radiculopathy as a consequence of her duties, with a date of injury on or about 4 November 2013, which he said was confirmed by A/Prof Ryan. The appellant describes Dr Stephenson’s view as a “bare assertion” that was not otherwise expressed by Dr Stephenson in his overall evidence and says that A/Prof Ryan’s opinion did not provide any support for that notion.
The appellant asserts that the Senior Member has not attempted to reconcile these inconsistencies in the evidence and has erroneously concluded that the first respondent discharged the onus in proving that the first respondent suffered a personal injury involving her neck on 1 November 2013. The appellant cites authorities as to what is required in order to establish a personal injury.[38] The appellant submits that in the present case, the first respondent’s complaints were essentially of right arm and shoulder pains evident in 2013 to 2014 and says that the Senior Member was cognisant of this. The appellant describes the first respondent’s neck pain as having “ramped up” in 2016 and 2017, when she was in the employ of the second and third respondents and refers to its submission made at arbitration that 2017 “was a very big year for the [first respondent] and her pathology.”
[38] Thiansawang (formerly Klugt) v The Salvation Army (NSW) Property Trust ATF The Social Work [2017] NSWWCCPD 12; Department of Education and Training v Ireland [2008] NSWWCCPD 134.
The appellant observes that it is well-established that an expert’s opinion will have limited probative value if it is based upon an inaccurate history. The appellant submits that the opinion of A/Prof Ryan and to a lesser extent Dr Stephenson must be questioned if there are no, or only “meagre” contemporaneous reports of neck symptoms in 2013 which would demonstrate that there was a causal connection with the employment. The appellant asserts that the objective evidence is that the first respondent was suffering from neck symptoms after she ceased work with the appellant and the evidence in this case does not give rise to an actual persuasion that an injury occurred. The appellant proffers a submission that the recorded neck complaint could be attributable to discomfort, pain or spasms caused by tension. The appellant contends that there needs to be more detailed contemporaneous evidence supporting the causal link before there could be any actual persuasion in respect of the occurrence of injury.
The appellant refers to the history recorded by Dr Cook that the symptoms had been present for six months. The appellant describes that evidence as important and asserts that the Senior Member failed to explain why she preferred the evidence of Dr Nagulendran over that of Dr Cook.
The first respondent’s submissions
The first respondent submits that she clearly reported the injury when she completed the AIMS incident form dated 4 November 2013 in which she identified an injury to her neck and symptoms in the right hand, arm and shoulder. The first respondent adds that the injury notification form was also completed by Ms De Rossi in which reference was also made to an injury to the “neck, shoulder and arm” when the first respondent was assisting new mothers with breastfeeding, with a date of injury recorded as 29 October 2013. The first respondent submits that, while the dates are inconsistent, there is clear evidence of injury to the neck at that time. The first respondent asserts that the fact that the appellant made a systemic recording of the first respondent’s complaints indicates that in that context the lack of extensive reporting of her complaints to medical practitioners and the absence of a record of such complaints is an insignificant factor.
The first respondent maintains that caution is required when placing reliance on treating medical records and cites Davis v Council of the City of Wagga Wagga[39] and Mason v Demasi[40] as authority for that proposition. She submits that, in any event, the Senior Member took into account the evidence from Dr Nagulendran in his report dated 22 December 2019 that the first respondent presented with right shoulder and neck pain in 2013.
[39] [2004] NSWCA 34 (Davis).
[40] [2009] NSWCA 227.
The first respondent asserts that the Senior Member dealt with the appellant’s submissions about the weight to be afforded to the medical evidence. The first respondent says that the appellant’s complaint that the Senior Member accepted that the neck was injured is not sufficient to support a proper ground of appeal.
RNS’s submissions
RNS refers to the AIMS incident detail form and the injury notification form, the first respondent’s statement evidence, the medical records and medical reports, which all record symptoms of neck pain at the time of injury attributable to the duties the first respondent was undertaking for the appellant. RNS asserts that the appellant “seeks to play down the significance” of those “specific and contemporaneous complaints”.[41] RNS submits that with the benefit of that evidence, it is not necessary to look at the clinical notes to seek corroboration (or the absence of corroboration) from the clinical notes recorded from the treating doctors.
[41] RNS’s submissions, [12].
RNS adds that the appellant’s argument that the record of neck pain recorded on 14 November 2013 does not make any reference to an injury at work, therefore the entry should be afforded little weight, is unsustainable because it is a contemporaneous record of neck symptoms supported by the AIMS incident detail form and the injury notification form. RNS maintains that, when read together, those records provide ample support for the conclusion that the first respondent suffered injury to her neck in early November 2013, as the Senior Member concluded.
RNS submits that the appellant’s reference to other causes for the first respondent’s neck symptoms is unsupported by the medical evidence and amounts to speculation.
RNS refers to the appellant’s challenge to the first respondent’s statement evidence. RNS points to the evidence provided in the first respondent’s statements, which made reference to the onerous work she performed in 2013 due to staff shortages and to symptoms in her neck. RNS submits that, although the references to neck pain do not specifically allude to injury on 1 November 2013, when read together with the AIMS incident detail form, the injury notification form, Dr Nagulendran’s report and the contemporaneous clinical record dated 14 November 2013, it was clearly open to the Senior Member to conclude that the first respondent injured her neck on 1 November 2023.
RNS contends that the appellant’s assertion that there is no support in the medical evidence for Dr Stephenson’s view that radiculopathy commenced in the cervical spine because of the heavy work the first respondent performed, with a date of injury of on or about 4 November 2013, is an erroneous assertion. RNS once again points to the evidence in the AIMS incident detail form, the injury notification form, Dr Nagulendran’s report and the clinical notes. RNS submits that A/Prof Ryan’s opinion that the first respondent’s neck and shoulder symptoms arose from the physical work performed for all three employers was not inconsistent with an opinion that the first respondent suffered a frank (personal) injury on or about 4 November 2013. RNS adds that the concept of a “date of injury” in workers compensation matters can have different meanings so that caution should be adopted when giving consideration to the question of causation of the injury.
RNS submits that, in order to establish error on the part of the Senior Member, it is not sufficient to simply show that there was evidence which could have provided a basis for the Senior Member to reach a contrary conclusion. RNS refers to Barwick CJ’s observations in Whiteley Muir & Zwanenberg Ltd v Kerr[42] that, in order to disturb a primary decision maker’s finding, it must be established that other probabilities so outweigh the conclusion reached by the primary decision-maker that it shows that the decision-maker’s conclusion was wrong. RNS submits that, in the light of the evidence discussed, the appellant has failed to demonstrate that the Senior Member’s finding of injury on or about 1 November 2013 was erroneous. RNS adds that, while the appellant points to some evidence that may be contrary to the Senior Member’s conclusion, that evidence does not amount to evidence that was so preponderant that the Senior Member’s conclusion must be wrong.
[42] (1966) 39 ALJR 505.
RNS submits that this ground of appeal should be dismissed.
As to Ground Two
The appellant’s submissions
The appellant says that the most plausible conclusion as to the first respondent’s neck symptoms is that of an aggravation of a disease of gradual onset, which was a finding arrived at by the Senior Member in respect of all three employers. The appellant asserts that, on a correct assessment of the evidence, the Senior Member should have found that the neck injury consisted in an aggravation of a disease rather than a personal injury pursuant to s 4(a) of the 1987 Act. The appellant refers to the observations made by Roche DP in Raulston v Toll Pty Ltd[43] and submits that the Senior Member erred in overlooking the preponderance of evidence, in particular the clinical records, which indicate that the cervical spine injury was an aggravation of a disease and not a personal injury pursuant to s 4(a) of the 1987 Act.
[43] [2011] NSWWCCPD 25.
The first respondent’s submissions
The first respondent repeats her submission that the appellant is merely reiterating its submission put to the Senior Member at arbitration. She submits that the Senior Member dealt with the submissions as to the weight to be afforded to the relevant evidence, which included the contemporaneous evidence as to what complaint of injury was made by the first respondent at the time of the injury. The first respondent asserts that the appellant’s complaint is not a “legitimate” ground of appeal.
RNS’s submissions
RNS asserts that it is difficult to distinguish any difference between the appellant’s submissions in support of Ground One and this ground of appeal.
RNS submits that the substance of Ground Two of the appeal is that the Senior Member overlooked the preponderance of the evidence in favour of the injury constituting an aggravation of a disease rather than a personal injury. RNS relies on its submissions made in respect of Ground One and submits that there is persuasive evidence emanating from the AIMS incident detail form, the injury notification form, the clinical note recording neck pain in early November 2013 and the evidence from Dr Nagulendran.
RNS quotes from Basten JA’s observations in Onesteel Reinforcing Pty Ltd v Sutton[44] that findings of primary fact are generally not open to review and if there was material capable of supporting a member’s inference drawn there was no error in point of law.
[44] [2012] NSWCA 282, [87].
As to Ground Three
The appellant submits that the Senior Member failed to give adequate reasons for concluding that the first respondent suffered a personal injury in her employment with the appellant. I have determined below that the Senior Member was correct in finding that the first respondent suffered injury to her cervical spine in or about 1 November 2013 but was wrong in concluding that it was a personal injury rather than a disease injury. I have further determined below that it was therefore unnecessary to consider this ground of appeal. In those circumstances it is also not necessary to record a summary of the submissions made by the parties in respect of Ground Three.
THE RELIEF SOUGHT
The appellant submits that the Senior Member’s determination in [364(b)] of her reasons in respect of the cervical spine should be set aside and an award in the appellant’s favour should be entered in respect of the allegation that the first respondent suffered a personal injury to her cervical spine. The appellant further seeks an order that the Senior Member’s determination in [1(b)(i)] of the Certificate of Determination be deleted.
The first respondent submits that the appeal ought to be dismissed.
RNS submits that the appeal should be dismissed and the Senior Member’s finding and order in respect of the injury to the cervical spine in November 2013 should be confirmed.
CONSIDERATION
It is noted that Nepean, who was the first respondent’s last employer and thus liable to pay the first respondent’s compensation entitlements pursuant to either s 15 or 16 of the 1987 Act in the event that the first respondent’s injuries consisted in a disease of gradual process or an aggravation of such a disease, did not formally oppose the appeal. On the day after the date for submissions had closed, Nepean indicated that it relied upon the submissions made by the first respondent and the third respondent in respect of there being no error in the Senior Member’s determination and said that the appeal be should be dismissed. Despite having the opportunity to do so, Nepean did not indicate what it considered should occur if the appeal was either wholly or partly successful.
Ground One: The Senior Member erred in finding that the first respondent sustained a personal injury to her cervical spine on 1 November 2013, arising out of or in the course of her employment with the appellant, and
Ground Two: The Senior Member made an error of fact and law in that she overlooked and failed to consider and give appropriate weight to the evidence supporting that any cervical spine injury was consistent only with a disease of gradual process which had been aggravated by the working conditions.
The first ground of appeal asserts error on the part of the Senior Member in finding that the first respondent sustained a personal injury to her cervical spine on 1 November 2013. In the context of the appellant’s submissions to the Senior Member and those made on appeal, it is apparent that the appellant’s complaint is that:
(a) firstly, the Senior Member was in error in finding that the first respondent suffered any injury to her cervical spine at all in the course of her employment with the appellant and
(b) secondly, that if there was an injury to the cervical spine, the Senior Member erred in determining that it was a personal injury within the meaning of s 4(a) of the 1987 Act.
The second limb of the ground of appeal is in effect the same complaint as that put forward in Ground Two of the appeal. That is, that the Senior Member should not have found that the injury was a personal injury within s 4(a) of the 1987 Act but, if an injury did occur, the Senior Member should have found that it was an aggravation of a disease process within the meaning of s 4(b)(ii) of the 1987 Act.
It is appropriate to firstly deal with the first limb of Ground One of the appeal.
The appellant asserts that:
(a) there was no mention of neck pain in the general practitioner’s clinical notes at the time of the injury to the right arm, despite the first respondent having numerous opportunities to make such a complaint;
(b) the only contemporaneous references to the neck (or cervical spine) were the notations in the AIMS incident detail form and the injury notification form;
(c) that evidence, in the absence of evidence identifying that a pathological change occurred, was not sufficient to support a finding of injury, and
(d) the neck pain (if any) could have emanated from other causes, such as tension or referred pain.
There is no proper basis for the appellant’s assertion that there was no contemporaneous evidence that supported a finding that the first respondent suffered an injury to her cervical spine on or about 1 November 2013. There is no reason to disregard or reject the evidence contained in the AIMS incident detail form or for that matter the injury notification form, regardless of who had completed the forms. Those documents were the appellant’s records produced by the appellant in the proceedings. They clearly establish that the appellant was informed that the first respondent experienced symptoms in her cervical spine as well as right shoulder symptoms at the time of reporting her injury sustained by performing the duties required of her in her employment with the appellant.
The appellant appears to be of the view that the entry in the general practitioner’s clinical notes referring to “neck pain” on 14 November 2013 without reference to the injurious event was not sufficient to establish that the first respondent suffered injury as alleged. In some circumstances, that may be true. However, in this case, it was not the sole reference to neck symptoms at or around that time. It was a complaint to a medical practitioner of the relevant symptoms some 10 days after she reported her injury which, together with the evidence from the appellant’s forms, was supportive of the allegation of injury to the cervical spine.
That was not the only evidence supportive of the cervical spine injury in 2013. In her supplementary statement dated 4 May 2021, the first respondent said:
“The intensity of my physical duties was compounded by the fact that [the appellant] was severely understaffed over a period of several months in 2013. During this period, the numbers of nurses in the ward decreased significantly from having four nurses in the morning, three in the afternoon and two in the morning, to only having two nurses on at all times. While I was not supposed to have more than four mothers at a time, I would often have six mothers I was responsible for at once, in addition to their newborn babies. As I had so much work and due to the chaotic nature of the birth unit, I was afforded little time to think about my neck pain, bilateral shoulder pain and headaches and I relied upon taking Panadol and anti-inflammatories to get through my shift.”[45]
[45] First respondent’s supplementary statement dated 4 May 2021, ARD, pp 9–10.
In his report dated 22 December 2019, Dr Nagulendran advised that he had been the first respondent’s general practitioner since 2013, that the first respondent complained in 2013 of right shoulder and neck pain and that the cervical spine pain was attributable to the work she performed as a midwife from 2013.
The medical specialists’ reports were silent in respect of the recorded 2013 history of injury but that does not amount to evidence that the injury to the neck did not occur. There was no preponderance of medical evidence relied upon by the appellant that would support a finding contrary to the conclusion reached by the Senior Member that the cervical spine was injured in 2013. The above factual and medical evidence in favour of the first respondent suffering a cervical injury in or about 1 November 2013 is sufficient to form a basis for the Senior Member’s conclusion. The Senior Member did not err in that regard.
In respect of both the second limb of Ground One and Ground Two of the appeal, the appellant asserts that the Senior Member erred in finding that the injury to the cervical spine was a personal injury pursuant to s 4(a) of the 1987 Act and ought to have determined that the cervical injury was an aggravation of a disease of gradual process (s 4(b)(ii) of the 1987 Act).
In questions of liability, the distinction between a s 4(a) injury and an injury under either s 4(b)(i) or s 4(b)(ii) is very relevant and is the subject of extensive caselaw. In order to satisfy s 16 of the 1987 Act, it must be established that the first respondent’s injury “consists in” the aggravation of a disease. In Rail Services Australia v Dimovski,[46] Hodgson JA observed that:
“Section 16 applies only if the injury ‘consists in’ the aggravation etc of a disease. If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s 16(1)(a) to have happened at some time other than when it in fact happened.
…
In the present case, compensation is payable by Rail Services for incapacity resulting from two injuries, namely a nature and conditions injury and a frank injury on 28 May 1998. The former could possibly be considered an injury under paragraph (b)(ii) and falling within s 16(1); but the latter could not.”[47]
[46] [2004] NSWCA 267 (Dimovski).
[47] Dimovski, [68], [70].
In Dimovski, the Court of Appeal was required to determine which of two earlier authorities from that Court was correct. The competing decisions were Colliar v Bulley[48] and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd.[49] It is not necessary to consider the facts in Colliar, or the conclusions, as the bench in Dimovski concluded it was not the correct rationale. In Mecha, the Court considered the nature of an injury in circumstances where the evidence suggested there had been an aggravation of degenerative changes. In that case the worker was injured in a fall on 11 February 1992 (a ‘frank injury’). The nature of the injury was the aggravation of pre-existing degenerative changes in his back, that is, an aggravation of a disease. The worker suffered a further injury to his back with a second employer as a result of the nature and conditions of his employment with that employer, which further aggravated his degenerative condition. The trial judge apportioned liability between both employers under s 22 of the 1987 Act.
[48] [2000] NSWCA 1 (Colliar).
[49] [1998] NSWCC 51; 17 NSWCCR 309 (Mecha).
On appeal it was held that while the injury on 11 February 1992 could have satisfied either definition of ‘injury’ in s 4 (either a “frank injury” or “injury in the nature of an aggravation of a disease”) the words “injury consists in the aggravation ... of a disease” in s 16(1) should be construed as not referring to something which is an injury independently of its aggravating effects on a previously existing disease, but as being confined to what are entirely injuries by aggravation. In other words, the “frank injury” and the “nature and conditions” injury were separate injuries each giving rise to compensation entitlements. In Mecha, Powell JA discussed the legislative history of s 4 of the 1987 Act and the High Court decision in Zickar v MGH Plastic Industries Pty Ltd[50] and relevantly said that:
“The effect of the decision of the majority [in Zickar] is, thus, first, that, if there can be identified an incident which involves—either by being itself the change, or by bringing about the change—a physical change in the worker, then—even though that change may be no more than the culmination of a progressive disease, and not the product of some external force—that damage is to be regarded as an ‘injury’ within the meaning of par (a) of the definition of ‘injury’ in s 4 of the Act
...
In the present case, the medical evidence which was before the trial Judge was sufficient to demonstrate that, even before the fall which he sustained on 11 February 1992, the worker’s lumbo-sacral spine had begun to degenerate ... This notwithstanding, the evidence of the worker, which was accepted by the trial Judge, was that, prior to the fall, his back condition was asymptomatic.
The worker’s evidence, which was supported by that of his general practitioner, was that, following his fall, he began to suffer pain in his back and neck, which pain grew worse and led to his ceasing work for a period ...
There thus having been an identifiable incident, which incident appears to have caused, at least, ligamentous injury to the lumbar spine segment, the sequelae of which involved pain, which was, for a time disabling, and which, in any event, has continued over the years, the decision of the majority in [Zickar] would seem to dictate that, even if it be the fact that the result of the incident was merely that the worker’s pre-existing back condition was rendered symptomatic, he was nonetheless to be regarded as having sustained an injury within the meaning of par (a) of the definition of ‘injury’.”[51]
[50] [1996] HCA 31; 187 CLR 310 (Zickar).
[51] Mecha, [39]–[42].
The above rationale was unanimously agreed to be correct by Handley JA, Hodgson JA and Young CJ in Eq in Dimovski.
In the present appeal, the appellant asserts that the injury sustained by the first respondent in 2013 was an injury within the meaning of s 4(b)(ii) of the 1987 Act and not a frank incident. In her reasons, the Senior Member correctly summarised the first respondent’s case as:
“The [first respondent] claimed that, in the three-month period leading up to on or about 1 November 2013, she was required in the course of her duties to participate in a number of sequential births. She was required to assist new mothers with breastfeeding, which involved holding babies to the mother’s breast for extended periods, which required her to maintain fixed, awkward postures. She gradually developed neck and right shoulder pain that deteriorated over a period of time to the point where she could no longer work and needed to have time off. Her first date of incapacity with [the appellant] was 1 November 2013.”[52]
[52] Reasons, [23].
The Senior Member further noted that the first respondent considered that her heavy workload over the previous two weeks and the lack of senior midwives were contributing factors to her injury. She also noted that the first respondent submitted that the episode of injury in 2013 was not “a frank incident of injury in the true sense of the word”[53] and that the appellant argued that the 2013 injury to the right shoulder was more akin to a “nature and conditions” injury.[54]
[53] Reasons, [250].
[54] Reasons, [270].
The Senior Member concluded that she was satisfied that the first respondent sustained injury to her neck and right arm and a consequential condition in her left shoulder on 1 November 2013 (the first day of incapacity). She did not make reference to Dimovski or identify whether the injury fell within s 4(a) or s 4(b) of the 1987 Act. She then proceeded to consider the allegation of injury made against all three employers and determined that the first respondent suffered an injury that consisted in the aggravation, acceleration, exacerbation, or deterioration of a disease with a deemed date of 13 May 2022.
It is implicit in the Senior Member’s first conclusion that the first respondent suffered an injury on 1 November 2013 that there was a specific date of injury, rather than a deemed date of injury. It can also be inferred from the referral for a separate assessment by the Medical Assessor, that she considered that the onset of symptoms in 2013 fell within the definition of injury in s 4(a) of the 1987 Act.
The difficulty with the Senior Member’s conclusion was that there was not a specific incident that triggered the cervical symptoms in 2013. Rather, the uncontested evidence was that her symptoms resulted from a heavy workload, short staffing, participating in a number of births and working in a prolonged and fixed position while assisting new mothers with breastfeeding, all of which involved the first respondent working as a midwife. The first respondent continued to work with the appellant as a midwife and then with the subsequent employers in the same role. She gave evidence of the duties she performed over the years. The nature of the duties did not change and led to further aggravation of what was accepted to be a disease process in the cervical spine. As discussed in Dimovski, some injuries may satisfy the definition of an aggravation injury pursuant to s 4(b)(ii) but remain personal injuries within the meaning of s 4(a). The injury to the cervical spine in this case does not constitute a personal injury within the meaning of s 4(a) of the 1987 Act. The aggravation of the first respondent’s cervical disease over the period leading up to 2013 falls squarely within s 4(b)(ii) of the 1987 Act and the date of injury is deemed to be the date the claim pursuant to s 66 of the 1987 Act was made, that is, 11 May 2022. That conclusion is consistent with the opinion of A/Prof Ryan that the injury was not caused by a specific incident but resulted from the physical nature of the first respondent’s employment with all three employers. It is also consistent with the opinion of Dr Stephenson that the injury constituted a disease of gradual process which was aggravated, accelerated or deteriorated by the first respondent’s employment between 2007 and 2017. Other than the opinion of Dr Rimmer, which was not accepted and not pressed on appeal, there is no expert medical opinion to counter that of A/Prof Ryan and Dr Stephenson.
Applying s 16 of the 1987 Act, the last employer who employed the first respondent in employment that was a substantial contributing factor to the aggravation of the disease (Nepean) is liable for the compensation payable pursuant to s 66 of the 1987 Act. It follows that the referral to the Medical Assessor for a separate assessment of the cervical spine in respect of a separate injury on 1 November 2013 was erroneous.
The appellant has succeeded in establishing error as asserted in the second limb of Ground One of the appeal and as asserted in Ground Two. It is not necessary in these circumstances to consider Ground Three of the appeal.
I note that the appellant from the outset conceded that the right shoulder was injured in a “frank” injury in 2013 and does not raise any allegation of error in respect of the Senior Member’s findings in relation to the right shoulder or consequential condition in the left arm. An appeal from a decision of a member of the Commission pursuant to s 352 of the 1998 Act is limited to the identification and correction of error and is not a review or re-hearing.[55] Having determined that the only error identified by the appellant in respect of the cervical spine is made out, it is not within the scope of the appeal to review the Senior Member’s determinations pertaining to the right and left upper extremities (shoulders).
[55] Section 352(5) of the 1998 Act.
An additional matter
The Senior Member’s Certificate of Determination (reproduced at [74] above) does not record her determinations made at [364] of her reasons in respect of the first respondent’s compliance with ss 254 and 261 of the 1998 Act, the Senior Member’s determinations as to injury and her finding that Nepean was the last employer who employed the first respondent. The Certificate of Determination does not comply with s 294(1) of the 1998 Act. It is therefore necessary to revoke the Senior Member’s Certificate of Determination dated 24 April 2023 and to have issued a new Certificate of Determination that includes:
(a) the Senior Member’s unchallenged determinations at [364] (a), (c), (d) and (e) of her reasons;
(b) a finding that the first respondent (the applicant below) sustained injury to her right shoulder and a consequential condition in her left shoulder on 1 November 2013, arising out of or in the course of her employment with the appellant (the first respondent below);
(c) in accordance with my reasons above, an award in favour of the appellant in respect of the alleged personal injury to the first respondent’s cervical spine on 1 November 2013 within the meaning of s 4 of the 1987 Act;
(d) a finding that the first respondent sustained injury to her right shoulder, cervical spine and left shoulder, deemed to have happened on 13 May 2022, consisting in the aggravation, acceleration, exacerbation, or deterioration of a disease, arising out of or in the course of her employment with the appellant.
(e) a remittal to the President for referral for assessment by a Medical Assessor of the first respondent’s:
(i)right upper extremity and left upper extremity with a date of injury of 1 November 2013, and
(ii)right upper extremity, left upper extremity and cervical spine with a deemed date of injury of 13 May 2022.
DECISION
The Senior Member’s Certificate of Determination dated 24 April 2023 is revoked.
The matter is remitted to the Workers Compensation Division Head to issue a new Certificate of Determination consistent with the determinations and remittals identified in paragraph [134] of my reasons.
Elizabeth Wood
DEPUTY PRESIDENT
12 March 2024
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