Taylor v Coles Group Ltd

[2023] NSWPIC 657

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Taylor v Coles Group Ltd [2023] NSWPIC 657

APPLICANT:

Karren Taylor

RESPONDENT:

Coles Group Limited

PRINCIPAL MEMBER:

John Harris

DATE OF DECISION:

8 December 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; the applicant suffered left knee injuries on 13 June 2012, 25 September 2012 and 1 August 2017; in 2019 the parties accepted that each of the three injuries materially contributed to the need for a total knee replacement paid by the respondent; the applicant commenced proceedings for section 66 compensation based on the three work injuries; assessed by Medical Assessor at 21% impairment; the only issue was the quantum of section 66; respondent submitted that first injury determined the quantum entitlement; applicant relied on the last injury; Held – respondent’s submissions inconsistent with previous findings and agreements that three work injuries each materially contributed to the need for surgery and that 21% impairment based on the three work injuries; the principle in Ozcan v Macarthur Disability Services Ltd applied where the worker based the entitlement only on the first injury; observations of Neilson CCJ in Sidiropoulos v Able Placements Pty Ltd applied; applicant entitled to section 66 compensation based on the last injury.

DETERMINATIONS MADE:

The Commission finds and orders:

Findings

1.     The applicant has a 21% permanent impairment resulting from injuries on 13 June 2012, 25 September 2012 and 1 August 2017.

2. The applicant is entitled to the sum of $53,810 as compensation pursuant to s 66 of the Workers Compensation Act, 1987.

Order

3.     The respondent pays the applicant the sum of $53,810 for 21% permanent impairment resulting from injuries on 13 June 2012, 25 September 2012 and 1 August 2017.

STATEMENT OF REASONS

BACKGROUND

1. Ms Karren Taylor (the applicant) sustained injuries to the left knee in the course of her employment with Coles Group Limited (the respondent) on 13 June 2012, 25 September 2012 and 1 August 2017.

2. The respondent accepted the following in its written submissions dated 3 July 2023.[1]

   “The applicant sustained three frank injuries to left knee as described in her statement dated 18 March 2019 and the certificate of determination – consent orders dated 8 May 2019. The parties agreed on 8 May 2019 of each of the three injuries materially contributed to the need further total left knee replacement surgery. That surgery was ultimately carried out on 13 August 2019.” (footnotes omitted)

   [1] Respondent’s submissions, [33].

3. The finding and order founding that concession provided:[2]

   “The Respondent accepts that each of the injuries occurring on 13 June 2012, 25 September 2012 and 1 August 2017 have made a material contribution to the need for the operation proposed by Dr Leong.

   ….

   The Respondent to pay for the Applicant’s left total knee replacement as set out in Dr Leong’s report of 30 October 2017 and reasonably necessary associated expenses.”

   [2] Reply, p 1.

4. This concession was common ground before me for the duration of the matter and was never withdrawn.

5. The matter was initially listed before me on 6 September 2023. By that time the parties had each provided two sets of written submissions at the direction of another Member. As the extent of impairment was then in dispute the matter was referred to a Medical Assessor on the following terms:

   “1.     The matter is remitted to the President for referral to a Medical Assessor as follows:

   a) Dates of injury:   13 June 2012, 25 September 2012 and

   August 2017

   b) Body system:   Left lower extremity (knee)

   Right lower extremity (knee) (consequential)

   Skin (temski)

   c) Method of assessment:         Whole person impairment.

   d) Documents to be referred:     Application to Resolve Dispute and attached documents and the Reply and attached documents.

   2.     The parties have liberty to relist the matter before me after the issuing of the Medical Assessment Certificate or the determination of any Appeal.”

MEDICAL ASSESSMENT CERTIFICATE

1. The assessment of impairment was referred by the President to Medical Assessor Ho who provided a Medical Assessment Certificate dated 5 October 2023 (the medical assessment certificate).

2. The Medical Assessor noted the following history of injury and treatment:[3]

   “Karren Rosea Taylor worked at Coles since 2000, her work is basically involving stocking up the dairy products and involves a lot of manual work in the freezer room as well as putting all of the food on to the shelves. She suffered 3 injuries, on 13 June 2012, she tried to pull a heavy roll cage which was stuck on the uneven floor and she ended up twisting the left knee. It was just managed conservatively but then 3 months’ later, on 15 September 2012, her left foot was caught by the plastic wrapping of the pallet and she fell and hit the left knee heavily on the concrete surface and this time she had further investigations done in terms of x-ray and MRI scan. The MRI scan showed some medial meniscus tear but certainly there was associated chondral wear or what we call arthritis. She was referred to Dr Anthony Leong and arthroscopy was done 1 month later on 29 October 2012. The operation, according to her, was not helpful and she was told by Dr Leong that she would require a knee replacement very soon, despite being young. She just put up with the pain and kept on working. She suffered a third injury on 01 August 2017, when the Cleaner cleaned the floor but left behind some water, because it was in the freezer room, it turned into something like ice and she slipped, her knee hit the steel bar sticking out from the wall and that aggravated the left knee problems. She was reviewed by Dr Anthony Leong with another MRI scan done in September 2017, based on the degree of chondral wear, she was recommended to have total knee replacement. That operation was initially declined as liability was not accepted but ultimately, it was done on 13 August 2019 with a reasonable outcome. She started to notice a problem of the right knee around mid-2020, nearly 1 year after she had the left knee replacement done and roughly the time that she returned to full duty work. She had the first x-ray done in February 2021 but the problem was not bad enough for her to consider any invasive procedures and she would rather put up with the problem, partly because the outcome of the left knee replacement was not as good as she expected.”

   [3] Medical assessment certificate, paragraph 4.

3. I adopt this summary in these Reasons.

4. The left lower extremity was assessed at 20% with a one-tenth deduction pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) resulting in an 18% impairment. The right lower extremity was assessed at 4% impairment with a 50% deduction resulting in an impairment of 2%. The surgical scar was assessed at 1%. These assessments resulted in a combined permanent impairment of 21%.

5. Towards the end of his reasons, the Medical Assessor made the following observation:

   “Based on the date of injury, with 3 separate incidents, I would like to approportion [sic] them evenly for the permanent impairment of the left knee but other than that, our conclusion is more or less quite similar and we all agree 1% for scarring due to the length and it being quite obvious upon inspection.”

SUBSEQUENT ORDERS

1. Following the issuing of the medical assessment certificate, the matter was again listed on 21 November 2023. I was then advised that the respondent maintained that the date of injury for the purposes of calculating the entitlement pursuant to s 66 of the Workers Compensation Act, 1987 (1987 Act) was 13 June 2012 and the sum payable to the applicant was $33,000.

2. The applicant maintained that the correct date was 1 August 2017, and that she was entitled to s 66 compensation in the sum of $53,810.

3. The following agreement and orders were made:

   “1.     It is agreed that the applicant has a 21% permanent impairment resulting from the three work injuries on 13 June 2012, 25 September 2012 and 1 August 2017.

   2. The only issue for determination is the amount of quantum payable under s 66 of the 1987 Act by reason of the above agreement.

   3.     The respondent has leave to file and serve any written submissions, by close of business, 28 November 2023.

   4.      The applicant can file and serve any submissions in reply, by close of business, 5 December 2023.”

4. I advised the parties that the issue of aggregation, a central feature of the respondent’s earlier written submissions, was no longer in dispute. I also informed the respondent that it had not responded to the applicant’s submissions dated 3 July 2023 at [7]-[11] which referenced authorities supporting the applicant’s position.

SUBMISSIONS

1. I do not intend to summarise significant portions of the previous submissions as they have been subsumed by the subsequent agreement recorded in the direction dated 21 November 2023.

2. The applicant’s initial submissions of the remaining issue were based on the reasons provided by Neilson CCJ (as his Honour then was) in Sidiropoulos v Able Placements Pty Ltd[4] which applied the reasoning of the Court of Appeal in Sutherland Shire Council v Baltica General Insurance Co Ltd.[5]

   [4] [1998] NSWCC 123 (Sidiropoulos) at [36].

   [5] (1996) 39 NSWLR 87(Baltica) at [98]-[99] (Priestley JA and Hunter AJA agreeing).

3. The applicant noted that Sidiropoulos was also applied in Alphenaar v Wollongong City Council,[6] a decision of Arbitrator Dalley in the former Workers Compensation Commission.

   [6] [2019] NSWCC 311 (Alphenaar) at [23]-[24].

4. The respondent’s subsequent submissions noted the prior agreements and stated:

   “2      There is no dispute that the Applicant sustained injuries on 13 June 2012, 25 September 2012 and 1 August 2017.

   3      There is also no longer a dispute regarding the impairment that has resulted from these three injuries, which as per the agreement between the parties, is 21% whole person impairment.”

5. The respondent submitted that the decision of Sidiropoulos is distinguishable. It then proceeded to make submissions inconsistent with the agreement recorded in the direction and confirmed in the above paragraph.

6. The respondent submitted that the two injuries discussed in Sidiropoulos had a cumulative effect whereas in the present matter the first injury resulted in the applicant developing post traumatic arthritis which necessitated the need for the total knee replacement. It referred to the opinion of Dr Leong which, as early as 3 September 2012 noted that the applicant required a total knee replacement.

7. The respondent noted that the Medical Assessor purported to apportion the impairment equally amongst the three injuries. It submitted that the apportionment was provided without any reasoning and that part of the medical assessment was not a matter for the Medical Assessor.

8. The respondent submitted:

   “… that in keeping with the principles in Sidiropoulos, the Applicant’s impairment results from the injury sustained on 13 June 2012 which initially triggered the symptoms that required an eventual knee replacement surgery. The Applicant’s current impairment of 21% involves impairment directly after 13 June 2012 and impairment following the total knee replacement.”

9. The respondent submitted that the matter fell within the first or second limb of State Government Insurance Commission (Western Australia) v Oakley[7] and that any impairment “results from the injury sustained on 13 June 2012”.

   [7] (1990) 10 MVR 570 (Oakley).

10. The applicant’s submissions in reply referred to the consent finding made on 8 May 2019 and the further agreement made on 21 November 2023. The applicant relevantly submitted:

    “Whether the MAC was binding or merely persuasive on the issue of contribution, it nonetheless suggested in relation to the lump sum claim what the parties had expressly agreed in relation to the claim for surgery. Namely, all 3 injuries contributed.

    ….

    The available inference would be that their impact [from the three injuries] was ‘cumulative’ in the sense referred to in Sidiropoulos.”

REASONS

1. I accept that the question of “aggregation” is a matter for a Member and not a Medical Assessor: Ozcan v Macarthur Disability Services Ltd.[8] This is because the issue of aggregation is not within any of the matters specified in s 326 of the 1998 Act where the medical assessment certificate is presumed to be correct.

   [8] [2021] NSWCA 56 (Ozcan) at [3].

2. Whilst the issue of aggregation formed a key aspect of the parties’ initial submissions, that issue was no longer pressed by the respondent.

3. The respondent’s ultimate submissions ignore the finding and order made on 8 May 2019, are inconsistent with the authorities relied upon by the applicant and otherwise misinterpret the principles discussed in Oakley and Ozcan. The submissions also ignore the recent agreement recorded on 21 November 2023 that:

   “It is agreed that the applicant has a 21% permanent impairment resulting from the three work injuries on 13 June 2012, 25 September 2012 and 1 August 2017.”

4. In Sidiropoulos the worker sustained two frank injuries on 8 August 1995 and 28 December 1995. Neilson CCJ held that the injuries have a “cumulative effect” which caused one impairment of the back and left leg. Reference was made by his Honour to the Court of Appeal decision of Baltica which provided that that the common law test of causation applied to ss 25, 33, 66 and 67 of the 1987 Act and that “as a matter of law the incapacity results from the last injury causative of incapacity or loss”.[9]

   [9] Sidiropoulos at 128.

5. As the applicant noted, Sidiropoulos was applied in Alphenaar, a decision of the former Workers Compensation Commission. Arbitrator Daley then stated:[10]

   “For the reasons set out by Neilson J in Sidiropoulos v Able Placements Pty Ltd (Sidiropoulos) I accept the submission of the applicant that section 322 of the 1998 Act and section 22(1) of the 1987 Act create a single impairment and the applicant is entitled to be compensated pursuant to section 66 at the date when the final injury to the affected body part occurs.”

   [10] Alphenaar at [23].

6. The respondent relied on the decision of Ozcan as supporting its position.

7. In Ozcan the worker suffered compensable injuries in three separate work incidents on 14 November 2011, 3 May 2012 and 26 September 2012. The Medical Assessor held that impairments were as follows:

   -      right shoulder – 3% from injury on 14 November 2011;

   -      thoracic spine – 5% from injuries on 14 November 2011, 3 May 2012 and 26 September 2012;

   -      lumbar spine – 7% from injuries on 14 November 2011, 3 May 2012 and 26 September 2012, and

   -      cervical spine – 0%.

8. The worker sought compensation pursuant to s 66 of the 1987 Act based on the impairment resulting from the first injury.

9. The Court of Appeal affirmed that s 65(2) of the 1987 Act adopted common law principles of causation as set out in Oakley.[11]

   [11] Ozcan at [14].

10. Relevantly Macfarlan JA stated:[12]

    “This was not however, with respect, the issue that needed to be addressed. The relevant question was whether the later spinal injuries resulted from those suffered on the first date. If they did, s 322(3) of the 1998 Act required them to be assessed with the impairment arising out of the right shoulder injury because the injuries all arose out of the same incident, that is, that of 14 November 2011.”

    [12] Ozcan at [16], McCallum JA and Simpson AJA agreeing.

11. As is clear from the reasons quoted above, the finding in Ozcan turned upon the application of s 322(3) of the 1998 Act and was based upon a case that the worker sought an assessment of permanent impairment due to the first injury.

12. In Ozcan the Court noted that s 322(2) of the 1998 Act, as interpreted in Department of Juvenile Justice v Edmed[13] does not limit the operation of s 65(2) of the 1987 Act and s 322(3) of the 1998 Act.

    [13] [2008] NSWWCCPD 6.

13. The applicant emphasised that she was not solely relying on the first injury as was noted in a number of cases (such as Ozcan) which were referenced by the respondent in its submissions. It was submitted that she was “relying on three injuries and causation had been agreed”.[14]

    [14] Applicant’s written submissions in reply, [5].

14. I accept the applicant’s submission that the parties have agreed that Ms Taylor suffered three work injuries and they each materially contributed to the need for surgery. The relevance is that it is the surgery, in this case the total knee replacement, which is the basis for the impairment of the left lower extremity.[15] The right lower extremity impairment is otherwise accepted as being consequential to the accepted left leg injuries and the scarring is consequential to the surgical procedure.

    [15] See American Medical Association Guides to the Evaluation of Permanent impairment , fifth edition (AMA5), Table 17-33 and Table 17-35 as amended by NSW workers compensation guilders for the evaluation of permanent impairment, p 21.

15. The parties’ agreement is consistent with the wording s 323(2) of the 1998 Act that “impairments that result from the same injury are to be assessed together”.

16. The respondent otherwise referred to Dr Leong’s opinion that the first injury was the cause of the surgery. This opinion was not shared by other doctors.

17. Dr Bodel opined that the left knee pathology was caused by each of the three injuries.[16]

    [16] Application, p 39.

18. In a further report qualifying his previous opinion, Dr Wallace, qualified by the respondent, opined that the three work incidents caused an aggravation of pre-existing degenerative changes leading to the total knee replacement.[17]

    [17] Reply, pp 22-23.

19. The Medical Assessor opined, admittedly without any reasoning, that the three work injuries each contributed to the overall impairment.

20. The worker in Ozcan chose to rely on the first date of injury for the purposes of aggregating the impairment from subsequent injuries that resulted from the first injury in accordance with the second Oakley category.

21. The respondent’s reliance on Ozcan ignores that it has accepted that the three work injuries each and separately materially contributed to the need for the surgery and further that the aggregated impairment caused by the three injuries was 21%.

22. To the extent that the respondent now suggests that only the first injury was causative of the need for surgery and the resulting impairment, that submission is inconsistent with the consent finding made on 8 May 2019 and the order made on 21 November 2023.

23. I consider that the May 2019 finding and order created an issue estoppel on the causal relationship between the three work injuries and the need for surgery and is otherwise consistent with the respondent’s earlier concession in this case.

24. To the extent that I am wrong, and that I am required to make a finding of fact, I am satisfied that the three work injuries each materially contributed to the need for surgery and the resulting impairment. This conclusion is based on the respondent’s admission in the 2019 finding and the medical opinions of Dr Bodel, Dr Wallace and the Medical Assessor, that the three work injuries were causative of the need for surgery and the resulting impairment.

25. To the extent that Dr Leong has expressed a view that only the first work injury has caused the need for surgery, that opinion has not considered the effects of the subsequent work injuries and has not considered that it is sufficient at law that the injury need only “materially contribute” to the need for surgery and the resulting impairment.

26. I accept that, consistent with the principles in Ozcan, the overall impairment probably results from the first work injury. However, that was not how the applicant ran her case.

27. The applicant proceeded on the basis that the impairment results from all three work injuries.  That conclusion is consistent with the previous findings and orders made in this matter. It is otherwise consistent with the preponderance of the medical evidence.

1. Consistent with the principles discussed in Sidiropoulos, the impairment results from the last work injury. Accordingly, the claimant is entitled to s 66 compensation in the sum of $53,810.

CONCLUSION

1. The findings and order is set out in the Certificate of Determination.