Temple v Woolworths Group Limited - [2022] NSWPICPD 16

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Temple v Woolworths Group Limited [2022] NSWPICPD 16
APPELLANT:	Rebeccah Temple
FIRST RESPONDENT:	Woolworths Group Limited
SECOND RESPONDENT:	Allstaff Australia Pty Ltd
FIRST RESPONDENT’S INSURER:	Employers Mutual Limited as agent for Woolworths Limited Workers Compensation Self Insurance Scheme
SECOND RESPONDENT’S INSURER:	AAI Limited t/as GIO
FILE NUMBER:	A1-W862/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	9 May 2022
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 11 August 2021 is revoked. 2. The matter is remitted to a different Member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – distinction between injuries pursuant to ss 4(a) and 4(b) of the Workers Compensation Act 1987 (the 1987 Act) – application of s 16 of the 1987 Act – Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr R Brown, counsel
Turner Freeman Lawyers
First Respondent:
Mr Andrew Parker, counsel
Turks Legal
Second Respondent:
Ms L Goodman, counsel
Gair Legal
DECISION UNDER APPEAL
MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	11 August 2021

INTRODUCTION AND BACKGROUND

Ms Rebeccah Temple (the appellant) was employed by Allstaff Pty Ltd (the second respondent), which was a company providing labour for hire to Woolworths Group Limited (the first respondent). The appellant was employed as a store person, performing picking and packing duties. On 9 November 2017, the appellant injured her back when she was hit by a reversing forklift vehicle. The second respondent accepted liability for the injury, paid the appellant weekly compensation for a period and paid her treatment expenses. The appellant returned to her pre-injury duties by 27 March 2018.
On 3 June 2019, the appellant commenced to work full-time (36 hours over a four-day period) with the first respondent, performing essentially the same work and in the same location as she had done while in the employ of the second respondent. The appellant asserted that the work she was performing with the first respondent caused her to experience back pain. She alleged that she ceased work early on 18 July 2020 because of back pain, which was a day prior to the commencement of her annual leave. On 21 July 2020, the appellant felt an immediate onset of increased back pain at home when she lifted a basket of dry laundry. Following that event, she sought treatment from Nepean Hospital and her general practitioner. She was referred for radiological investigations and for specialist review. She did not return to work.
The appellant lodged a claim for compensation with the second respondent, who denied liability. She then commenced proceedings in the Commission against both the first and second respondents. She alleged a frank injury on 9 November 2017 when employed by the second respondent. She further alleged an injury in the form of a disease or an aggravation of a disease in accordance with s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) as a result of the “nature and conditions” of the work performed in the employ of the first respondent.
The matter proceeded to arbitration. The Member determined that the appellant suffered from an aggravation of a disease condition in her lumbar spine and that liability for the appellant’s incapacity and treatment expenses flowing from the back condition rested entirely with the first respondent. The appellant appeals that decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) 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.”
All of the parties are content for the appeal to be determined ‘on the papers.’
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.

THE EVIDENCE

The appellant’s statement evidence

The appellant provided a statement dated 8 December 2020.[1] She described a background of her schooling and work experience, advising that she had left school in Year 10, when she was about 15 years old. She said that she worked in a Woolworths supermarket for about one year, before obtaining work as a picker/packer in a pharmaceutical company. She said that thereafter she worked in different jobs during her 20’s and 30’s. She described working as a funeral assistant for about 8 years before commencing work with the second respondent as a store person, picker and packer.
[1] Application to Resolve a Dispute (ARD), pp 1–3.
The appellant described the injury on 9 November 2017, in which a pallet truck reversed into her while the driver was avoiding a fire, causing her injuries to her left shoulder, right thumb, right knee, right hip, and her lower back. The appellant said that she persevered at work for two days, but the pain did not abate, and, on the advice of the second respondent’s in house physiotherapist, she consulted a doctor. The appellant consulted Dr Anshu Parmar, general practitioner, at the Richmond Marketplace Medical Centre. She said that she underwent investigations for her right thumb and left shoulder injuries, but she could not remember if she had been referred to a medical specialist. The appellant recalled that, after about two or three months, she was cleared to return to her pre-injury duties, and continued to work for the second respondent, until she accepted a full-time position with the first respondent, which entitled her to sick and annual leave.
The appellant described the work with the first respondent. She said that the work was intense, repetitive and physical, involving packing pallets all day and moving material such as cases of coca-cola, water, flour, and other groceries, from one pallet to another. She added that, even though some products were not as heavy, the work was still repetitive, and she was required to work for the whole day, except for a short break and a half hour for lunch. She said she was required to meet set targets and key performance indicators. The appellant provided details of the work required through the working day. She said she worked four days per week, but reduced her days to three days in March 2020 so that she could assist her mother.
The appellant stated, that during 2019 and 2020, her back would become sore after a long day’s work but she did not report it because there had been no specific incident and she was concerned about losing her job. The appellant said that her right knee became sore and gave way a few times while she was working, which caused her to consult the on-site physiotherapist who recommended two weeks of suitable duties. She said that she then returned to full duties and continued to work. She added that at about that time, the first respondent was reducing staff which caused her concern about her employment, so she kept on working as best she could, but was experiencing pain in her back and right hip.
The appellant advised that she had arranged to take annual leave from 19 July 2020, but on 18 July 2020, which was her last shift, she had to leave work after one and a half hours because of pain in her back, which, she said, felt as though something was about to snap or break. The appellant said that she did not report the back pain because she was going on leave and had hoped that it would improve with rest. She advised, however, that on 21 July 2020, she bent to pick up a washing basket which would have weighed less than 2 kilograms, when she felt extreme pain in her lower back.
The appellant stated that she attended Nepean Hospital about one week later because of continuing significant pain. She said the hospital advised her to attend a general practitioner and she consulted Dr Mehjabin, who referred her to Dr Charles New, spinal surgeon. The appellant indicated that Dr Mehjabin was reluctant to handle a workers compensation injury, so she consulted the “Workers Doctors” at Parramatta, who provided her with certificates of capacity, certifying her as unfit for work.
The appellant complained of continuing back pain radiating down her right leg and into her foot, which felt numb, as well as stabbing right buttock pain. She added that she has right knee pain almost daily, difficulty driving because of the heavy medications she is taking, difficulty sleeping for more than 2–3 hours and an inability to sit for long periods. She said she cannot work and could not see herself recovering and returning to work without the help of the workers compensation insurer.
The appellant provided a supplementary statement dated 25 June 2021 following receipt of reports from Dr Thomas Silva dated 26 May 2021 and 17 June 2021. She clarified the period within which she was off work following the injury on 9 November 2017.[2] She annexed Certificates of Capacity indicating that she was unfit for work until 24 November 2017, and thereafter fit for some work with restrictions until 15 March 2018, when she was certified fit for a trial of pre-injury duties. The appellant explained that, while she was fit for some work, the second respondent’s policy was that she would not be allowed to return to work until she was given a full pre-injury clearance. She said that she returned to work on or about 26 February 2018. She confirmed that payslips and other correspondence, which were also annexed to her statement, confirmed that she was not working between the injury in November 2017 and 28 February 2018.
[2] Appellant’s Application to Admit Late Documents (AALD), pp 1–2.
The appellant described her back pain after her return to work as “not perfect”[3] and added that it was never as good as it had been prior to the injury on 9 November 2017. She referred to Dr Silva’s observation that during the examination she had undressed and dressed without difficulty. She said that she strongly disagreed because she had to sit to dress and undress and had difficulty bending to put on or take off her lower garments.

The medical evidence

[3] Appellant’s AALD, p 2, [6].

Dr Anshu Parmar, general practitioner

The appellant attended the Richmond Market Place Medical Centre from 17 March 2017, principally consulting Dr Anshu Parmar. The notes recorded that the appellant attended that practice until 11 July 2018.[4] The first relevant entry was dated 13 November 2017, in which Dr Parmar noted a history of the appellant being hit by a reversing pallet truck, injuring her right knee, right lower back and left shoulder.[5] On the following day, the appellant again complained of low back pain. Dr Parmar noted that there was back pain without radiation, issued a certificate of capacity and referred the appellant to “In2 Motion” for physiotherapy treatment.
[4] First respondent’s AALD, pp 1–45.
[5] First respondent’s AALD, p 19.
The appellant consulted Dr Parmar on 17 November 2017, 21 December 2017, and 4 January 2018, and it was noted that the appellant’s back condition was improving. On 29 January 2018, Dr Parmar recorded that the appellant’s back pain was “better”, there was no radiation, and there was full range of movement in the right knee and right thumb. Reference was made to the left shoulder “ROM” being much better, but “… does not feel her L shoulder is strong enough for her pre-injury duties.”[6] Dr Parmar noted that the second respondent had not offered “light duties.”
[6] First respondent’s AALD, p 38.
The appellant consulted Dr Parmar in respect of the 2017 injury on three more occasions. On 23 February 2018, Dr Parmar noted that the appellant was happy to try a return to pre-injury duties, and on 15 March 2018, she noted that the appellant had returned to pre-injury duties and had no difficulties.

The Workcover Certificates of Capacity issued by Dr Parmar

Dr Parmar issued Certificates of Capacity from 13 November 2017 to 29 January 2018[7] and on 15 March 2018[8] in respect of the injury on 9 November 2017. The injuries were described as lower back pain, right knee pain, left shoulder injury and later a right thumb injury. The initial certificate certified the appellant as having no capacity for work. The certificates dated 24 November 2017 through to 4 January 2018 indicated that the appellant was fit for some work with reduced hours. Dr Parmar then certified the appellant as fit for full hours with restrictions on lifting, carrying, pushing and pulling, until 15 March 2018, when she certified the appellant as fit for pre-injury duties.
[7] First Respondent’s AALD, pp 121–153.
[8] Second Respondent’s Reply to Application to Resolve a Dispute (reply), pp 26–28.

The In2 Motion records

The clinical records of the In2 Motion physiotherapy centre were in evidence.[9]
[9] First Respondent’s AALD, pp 85–101.
On 20 November 2017, Ms Lauren Grace, physiotherapist, reported to Dr Parmar, noting the appellant was seeking treatment in respect of her lower back, left shoulder, right knee, and also her right thumb. Ms Grace advised of a proposed treatment plan, which involved treatment to the lumbar spine, and assessment of the left shoulder and right thumb.[10]
[10] First respondent’s AALD, p 85.
On 12 February 2018, Mr Scott Cone, physiotherapist from the same practice, advised Dr Parmar that the appellant was improving in her ability to lift, and the intended goal was for the appellant to return to full duties the following week.[11] Mr Cone again reported to Dr Parmar on 19 February 2018, advising that the appellant had no difficulty completing a work simulation exercise program and recommended that the appellant return to work the following week.[12]
[11] First respondent’s AALD, p 86.
[12] First respondent’s AALD, p 87.

Active Occupational Health Services

Ms Sophie Birkbeck, occupational therapist from Active Occupational Health Services, performed a rehabilitation and workplace assessment on 24 November 2017 at the request of the second respondent.[13] Ms Birkbeck recorded that the appellant complained of pain in the left shoulder, right thumb and constant pain in the right lower back. Ms Birkbeck noted that:
(a)    the appellant was undertaking a physical rehabilitation program with her physiotherapist;
(b)    the appellant was unable to return to work at that stage because of her limited capacity and because suitable duties were not available with the second respondent;
(c)    the appellant required a six-week work trial to assist with upgrading her capacity, and
(d)    the appellant’s treating doctor had anticipated a twelve-week recovery period.
[13] Report dated 28 November 2017, first respondent’s AALD pp 27–34.

Ms Veronica Lun, rehabilitation consultant

Ms Veronica Lun, rehabilitation consultant with the Workers Health Centre, completed a “Return to Work Upgrading Program” on 21 December 2017.[14] She recorded the appellant’s injuries as back pain, left shoulder pain, right knee and right thumb. Ms Lun noted that the appellant had been certified fit for work at that stage for five hours per day, four days per week, but that there were no suitable duties available. She proposed that the appellant could return to full hours and duties on 22 February 2018.
[14] Second respondent’s AALD, pp 274–277.
Ms Lun completed a “Return to Work Closure Report” dated 3 May 2018.[15] She advised that the appellant had returned to a work trial of pre-injury duties on 26 February 2018 without encountering any difficulties, and a final certificate of capacity for pre-injury duties was issued on 15 March 2018. She indicated that the appellant was to be assessed as to whether she could sustain that work level until 25 May 2018.
[15] Second respondent’s reply, pp 14–15.

Dr Ishrat Mehjabin, general practitioner

The appellant consulted Dr Ishrat Mehjabin, general practitioner from the Glenwest Medical Centre from 25 February 2020 until 13 May 2021.[16] The appellant first complained of back pain on 29 July 2020, when Dr Mehjabin recorded the history of “moderate to [severe] lower back pain 2 days ago”, that the appellant had lifted a heavy basket full of clothes and she had attended the emergency department of the hospital, who referred her for an MRI scan. Dr Mehjabin prescribed endone and norgesic for pain.[17]
[16] First respondent’s AALD, pp 49–55.
[17] First respondent’s AALD, p 52.
The appellant again consulted Dr Mehjabin on 4 August 2020. Dr Mehjabin discussed the results of the MRI scan, referred the appellant to Dr Charles New, neurosurgeon and issued a medical certificate for 4 August 2020 and 5 August 2020. On 6 August 2020, Dr Mehjabin advised the appellant to claim workers compensation but indicated that he did not handle those claims.
Dr Mehjabin reviewed the appellant again on 3 September 2020, noting that an EMG study showed active and chronic denervation changes in the L4/5 lumbar distribution with an active L4/5 radiculopathy. Dr Mehjabin further noted that the appellant was to undergo a cortisone injection, and that the appellant was consulting Dr Eric Lim in respect of her workers compensation claim. Dr Mehjabin reviewed the appellant again in respect of chronic back pain on 3 May 2021 and 4 May 2021.

The Workers Doctors medical clinic

The appellant attended several treatment providers at the Workers Doctors medical clinic, including Dr Eric Lim, Dr Sebastian Calvache-Rubio, Dr Morgan Mo and Dr Ben Dickson. Certificates of capacity were issued for the period from 10 August 2020 to 28 September 2020,[18] and from 21 September 2020 to 23 June 2021.[19] All of the certificates certified the appellant as having no capacity for work. The injuries recorded included the back, right hip and right knee and on 14 October 2020, Dr Mo added a diagnosis of adjustment disorder.[20]
[18] ARD, pp 145–147; 96–98; 53–55.
[19] Second respondent’s AALD, pp 160–192.
[20] Second respondent’s AALD, pp 163–165.

Dr Eric Lim, general practitioner

The appellant first consulted Dr Eric Lim, general practitioner at the Workers Doctors medical clinic on 10 August 2020.[21] Dr Lim recorded that the appellant suffered an injury at work on 18 July 2020, which involved her back, hip and right knee, and was as a result of heavy lifting and bending. He noted that the right knee symptoms initially appeared during her shift on 16 June 2020, following which she developed back pain. He noted that she applied for leave from 18 July 2020 as she was reluctant to claim workers compensation. Dr Lim reported that the appellant experienced worsening pain when lifting a washing basket on 21 July 2020 and on 28 July 2020 attended Nepean Hospital due to severe back pain.
[21] ARD, pp 34–36.
Dr Lim referred to prior right knee and low back injuries at work in 2017, which had recovered. He noted that the appellant worked as a picker and packer, had a past work history as a funeral assistant and as a receptionist. He diagnosed lumbar spine radiculopathy, L4/S1 degenerative changes, an L5/S1 disc protrusion and annular tear with nerve root compression, as well as right knee and right hip pain and an adjustment disorder.

Dr Lim reviewed the appellant’s difficulties and considered that the appellant was unable to work. In subsequent consultations, he noted that the appellant suffered from continuing back pain with radiculopathy, right hip and right knee pain and numbness in her right shin and foot.

Dr Sebastian Calvache-Rubio, general practitioner

The appellant attended Dr Sebastian Calvache-Rubio, general practitioner, on 17 August 2020. Dr Calvache-Rubio took a history of injury consistent with that recorded by Dr Lim.[22] The appellant attended Dr Calvache-Rubio again on 24 August 2020.[23] He considered that the appellant was in severe pain and did not have the capacity to engage in suitable duties.
[22] ARD, p 38.
[23] ARD, pp 39–40.
The appellant further consulted Dr Calvache-Rubio on 7 September 2020,[24] 21 September 2020,[25] 9 December 2020[26] and 3 March 2021.[27] Dr Calvache-Rubio noted a deterioration in the appellant’s condition over that period.
[24] Second respondent’s AALD, p 136.
[25] Second respondent’s AALD, p 138.
[26] Second respondent’s AALD, p 142.
[27] Second respondent’s AALD, pp 144–145.

Dr Morgan Mo

Dr Mo saw the appellant on 14 October 2020 and recorded worsening back pain with the presence of radiculopathy. He also diagnosed an adjustment disorder.[28]
[28] Second respondent’s AALD, p 139.

Dr Ben Dickson

The appellant consulted Dr Dickson on 17 March 2021 and 14 April 2021. Dr Dickson diagnosed an anxiety disorder.[29]
[29] Second respondent’s AALD, pp 145–147.

Dr Charles New, orthopaedic and spinal surgeon

The appellant was referred to Dr Charles New by Dr Mehjabin. Dr New examined the appellant and reported to Dr Mehjabin on 11 August 2020.[30] He reported that the appellant had experienced debilitating pain in her back and right buttock over the previous two weeks. He said she described the pain as a burning sensation, which was not associated with pins and needles or radiculopathy, and was not relieved by physiotherapy or minor analgesics. He took the history that the pain developed while performing her normal duties, but that she lifted a washing basket at home which caused worsening of the symptoms. He noted the history of the 2017 injury, and that in that incident the appellant suffered injury to low back, left shoulder, right thumb and left knee, following which she was off work for 14 weeks. Dr New described the 2017 injury as quite “substantial” and said that the appellant stated that her pain never really resolved since that event. Dr New was of the view that the latest incident could constitute an exacerbation of her earlier injuries.
[30] ARD, p 11.
Dr New wrote a further report dated 23 September 2020, which appears to be directed to the appellant’s legal representatives.[31] Dr New referred to and enclosed the results of radiological investigations and nerve conduction studies, which he said confirmed the presence of an active right L4/5 radiculopathy. Dr New reported a history of injuries consistent with the history recorded in his previous reports, and noted that, following the incident in 2017, the appellant was able to return to normal duties. He further noted that the appellant continued to suffer from intermittent symptoms with no radicular pain after that incident.
[31] ARD, pp 13–16.
Dr New further recorded that the appellant’s current complaints consisted of low back pain, which was worse than the radicular pain, and a recurrence of right knee pain. He confirmed that radiculopathy was present, as identified in the EMG studies.
Dr New diagnosed chronic low back pain with right sided L4/5 radiculopathy. He opined that the condition would cause a reduced capacity to work, the appellant had been unable to work since the “latest injury on the back of her history from 2017”,[32] and would require vocational assessment. Dr New concluded:
“It is my opinion that the incapacity she has is a result of the injury at work in 2017 which has been exacerbated by her incident at home, and that the original injury to her spine was substantial in contributing to her current presentation.”[33]
[32] ARD, p 15.
[33] ARD, p 15.

Dr Peter Giblin, orthopaedic surgeon

Dr Peter Giblin examined the appellant at the request of her legal representatives. He provided a report dated 19 October 2020.[34]
[34] ARD, pp 24–28.
Dr Giblin took a history of the injury on 9 November 2017 when the appellant was hit by a reversing forklift, following which she felt soreness in the shoulders and right knee. He noted that the appellant’s symptoms did not settle, so she consulted her general practitioner, was off work for about ten weeks and then returned to full-time unrestricted duties. Dr Giblin took a further history of the appellant moving boxes at work on 16 June 2020, following which she experienced soreness in the right knee, and several incidents of the right knee collapsing. He said the appellant gave a history of the onset of low back and right hip pain about a week later, and by 18 June 2020, the appellant felt as though her low back was about to snap if she bent over. He said this caused the appellant to cease work about an hour and a half after she started her shift.
Dr Giblin said that three days later, the appellant bent over to pick up a small washing basket at her home and experienced acute stabbing pain in her low back. He said that the appellant complained of persisting pain despite medication and so she attended Nepean Hospital on 28 July 2020. He noted that the appellant remained off work ever since and was receiving ongoing treatment. Dr Giblin recorded the appellant’s complaints, which were of persisting right sided low back and right leg symptoms in the form of intermittent pain in the right thigh and constant numbness in the right foot and calf.
Dr Giblin noted that the appellant’s disabilities included an inability to walk for more than 400 metres, stand for more than 15 minutes, sit for more than 20 minutes and an inability to sleep for more than three hours at a time. He listed her past work experience, which included jobs in retail and factory work, as a funeral assistant and a receptionist, before commencing warehouse work in 2015.
Dr Giblin reviewed the radiological investigations, noting that the MRI scan undertaken on 31 July 2020 showed multi-level spondylitic changes, especially at the L5/S1 level, but no clear evidence of neural compression. He noted, however, that the nerve conduction studies performed on 2 September 2020 were consistent with an active right L4/5 radiculopathy. He diagnosed a soft tissue injury to the appellant’s lower back, which was an aggravation occurring in the course of her work, and to which the appellant’s employment was the only main contributing factor to the aggravation of the pre-existing age-related degenerative changes.
Dr Giblin formed the view that the appellant was permanently unfit for unrestricted repetitive bending, lifting and twisting or other physically demanding work. He considered that the appellant was fit for full-time sedentary work, avoiding those restrictions and preceded by vocational rehabilitation if necessary. He opined that the appellant’s injuries would deteriorate and would be “subject to material aggravation from innocuous physical events.”[35]
[35] ARD, p 27.

Dr Thomas Silva, orthopaedic surgeon

Dr Thomas Silva was requested by the second respondent to examine the appellant and provide an opinion. He provided a report dated 26 May 2021.[36] Dr Silva recorded a history of three incidents involving low back pain. He said the first incident was on 9 November 2017, when the appellant was struck by a reversing forklift, causing bruising of the right knee, pain in the left shoulder and right thumb and low back pain over the right hip. Dr Silva took the history that the appellant was off work for 14 weeks after the incident, during which time she consulted her general practitioner, Dr Parmar, and underwent physiotherapy. She then returned to work on full duties until 18 July 2020. Over that time the appellant experienced “niggling” back pain, which she had not experienced prior to the injury on 9 November 2017.
[36] First respondent’s AALD, pp 109–114.
Dr Silva took the history that on about 18 July 2020, the appellant experienced problems in her right knee, with the knee giving way or collapsing, and experienced increasing low back pain while working, without any specific incident. Dr Silva noted that the appellant took annual leave from that date and, while at home three days later, bent to lift a light laundry basket, at which time she felt worsening back pain. Dr Silva said that, at the suggestion of Dr New, the appellant underwent four lumbar spine injections, two of which provided some relief.
Dr Silva recorded that the appellant drove her manual car, except intermittently when she was experiencing more significant back pain, at which time she would drive her daughter’s automatic car. Dr Silva noted that the appellant complained of constant low back pain radiating into the right leg, could sit or stand for 20 minutes and found that walking relieved her pain. He further noted that she could dress and undress without difficulty. He performed a physical examination and recorded his findings. He referred to the findings reported in an MRI scan performed by Dr K Ho.
Dr Silva assessed the appellant’s whole person impairment as 7%. He opined that the low back injury on 9 November 2017 was the main and substantial injury. He did not apportion any of the whole person impairment to the episodes of back pain on 18 July 2020 and 21 July 2020 because they constituted aggravations of the original injury. Further, there was no deduction for previous injuries because the appellant denied back symptoms prior to 9 November 2017.
Dr Silva proceeded to respond to questions put to him by the first respondent. The questions put to him were not in evidence. He diagnosed the appellant as suffering from a lumbar strain without clinically confirmed radiculopathy. He said that it seemed apparent that the appellant experienced intermittent low back pain following the injury on 9 November 2017 and was aggravated on the two subsequent occasions. He opined that the appellant was fit for her pre-injury hours with restrictions on heavy lifting and bending. He noted that the appellant had a prior work history which included office work and work as a funeral assistant. He considered that she was fit for work as a receptionist, in an office or as a shop assistant without frequent heavy lifting or bending, and those restrictions related to the injury on 9 November 2017.
Dr Silva was asked to provide a supplementary opinion. He reported on 17 June 2021, following receipt of further information from the second respondent.[37] Dr Silva noted that the second respondent asserted that the appellant was off work for only two weeks and three days following the injury on 9 November 2017 (not fourteen weeks), following which the appellant:
(a)    returned to full duties;
(b)    was certified fit for pre-injury duties with no restrictions by Dr Parmar on 15 March 2018, and
(c)    reported to her general practitioner that, after the injury on 9 November 2017, she returned to pre-injury duties and had no ongoing symptoms.
[37] First respondent’s AALD, pp 115–117.
On the basis of that information, Dr Silva reviewed his earlier opinion. He said that:
(a)    if the appellant’s absence from work after the 2017 injury was only for two weeks and three days, following which the appellant returned to full duties, it was reasonable to conclude that the 2017 injury had resolved and resulted in 0% whole person impairment;
(b)    the claim for injury on 18 July 2020 was therefore a new injury, and
(c)    the injury from lifting the laundry basket (which Dr Silva referred to as occurring at work) appeared to be an aggravation of the injury on 18 July 2020.
Dr Silva concluded that the appellant’s whole person impairment of 7% should therefore be apportioned as 4% attributable to the injury on 18 July 2020 and the remaining 3% attributable to the incident lifting the laundry basket, which he then noted occurred at home.

THE MEMBER’S REASONS

The Member summarised the issues requiring determination, noting that:
(a) the first respondent disputed that:
(i)the appellant’s employment caused injury or aggravation of a disease;
(ii)the employment with it was the main contributing factor to a “disease” injury, and
(iii)the appellant was incapacitated for work, and
(b) the second respondent:
(i)alleged that the appellant had recovered from the effects of the injury on 9 November 2017;
(ii)disputed that the appellant suffered an incapacity for work, and
(iii)disputed that, if the appellant suffered a disease injury, it was the last employer who employed the appellant in employment to the nature of which the injury was due.
The Member noted that the parties agreed that the appellant’s pre-injury average weekly earnings with the first respondent were $975 per week and $1,030.47 per week with the second respondent. The Member reviewed the appellant’s statement evidence, together with the medical evidence provided by the appellant’s treatment providers, including her physiologist and physiotherapists. The Member reviewed the evidence provided by the rehabilitation providers and the evidence provided by Dr Giblin and Dr Silva, including the histories provided to both medico-legal specialists. She summarised the submissions provided by each of the parties.
The Member considered that the medical evidence was “largely unsatisfactory.” She concluded that:
“None of the specialists who has provided evidence appears to have obtained a correct and complete history. The applicant’s evidence, too, differs in part from the histories she has provided to the various practitioners who have treated her or who have been qualified to provide an opinion.”[38]
[38] Temple v Woolworths Group Limited [2021] NSWPIC 287 (reasons), [197].
The Member observed that the appellant’s evidence about the work performed with the first respondent was more detailed than her evidence in relation to the employment with the second respondent, which she presumed was because the appellant’s case against the second respondent relied solely upon a frank incident. The Member noted the appellant’s evidence that the work with the first respondent was heavy, repetitive and intensive, which she observed was not contradicted by other evidence. She accepted that the appellant’s description of her duties was accurate.
The Member noted the appellant’s evidence that, following the injury on 9 November 2017, the appellant was given a clearance to return to pre-injury duties, however, the appellant asserted that her back condition had never fully recovered to its pre-injury state. The Member observed that by December 2020, the appellant complained of continuing back pain, stabbing right buttock pain and pain radiating down her right leg.
The Member turned to the histories provided to the various doctors in relation to the 2017 injury and observed that:
(a)    Dr Mehjabin did not have a history of the injury in 2017;
(b)    Dr Lim recorded that the appellant recovered from the 2017 injury;
(c)    Dr Calvache-Rubio noted that the appellant had returned to her pre-injury duties without symptoms;
(d)    Dr New took the history that the back symptoms had never fully recovered after that injury, and
(e)    Dr Giblin only recorded that the appellant had returned to unrestricted duties.
The Member observed that Dr Silva took the history that the appellant experienced niggling back pain after the first injury but also recorded that the appellant suffered pain radiating into her thighs since that injury, which was not consistent with any of the other histories recorded. The Member remarked that the evidence from Dr Parmar, Ms Grace, Mr Cone and Ms Lun indicated that the appellant recovered well from the 2017 injury and the rehabilitation file was closed within 3 months of the appellant returning to work. The Member concluded that, on the basis of the evidence, the appellant did not return to work following the injury on 9 November 2017 with the second respondent and did not return until 26 February 2018. The Member observed that there was no medical or other evidence that the appellant made any complaint in respect of back pain, either to the second respondent or her treatment providers, which indicated that the appellant’s back condition was not sufficiently serious as to require medical investigation. The Member pointed out that during this time, the appellant did seek treatment and undergo investigations for other conditions.
The Member reviewed the appellant’s statement evidence that during 2019 and 2020, the appellant would experience a sore back after a day’s work with the first respondent but did not report it because she was concerned about job security and because there was no specific injury or accident. The Member referred to the respondents’ submissions that the reasons put forward by the appellant for not reporting the back symptoms were not consistent with the appellant having sought treatment and reported knee symptoms on 16 June 2020. The Member considered that the knee injury was a specific injury which must have prevented the appellant from working at that time and was different to the onset of insidious back pain which had been manageable with rest on the appellant’s days off. The Member compared the nature of the appellant’s ongoing back pain to that experienced by the appellant on 18 July 2020, when the appellant felt as though something was about to “snap or break” in her back and the onset of immediate pain when lifting the washing basket, which was described as very light, at home. The Member observed that Dr Mehjabin had recorded that the washing basket was heavy, and the incident had occurred two days prior, that is, on 27 July 2020. The Member considered that she should treat the clinical notes with caution, and she accepted that the appellant’s symptoms in her back had caused the appellant to leave work early on 18 July 2020.
The Member observed that none of the treatment providers had recorded the presence of radiculopathy in the right leg following the 2017 injury, noting that:
(a)    Dr Calvache-Rubio recorded severe back pain referred to both legs in July 2020, and by 9 December 2020 recorded bilateral referred leg pain with a shooting sensation and foot pain;
(b)    Dr Lim diagnosed lumbar radiculopathy in August 2020;
(c)    the EMG study performed by Dr Kim on 2 September 2020 showed active right radiculopathy at the L4/L5 level;
(d)    Dr New diagnosed chronic back pain with right sided radiculopathy, and
(e)    Dr Giblin recorded right sided symptoms with numbness of the back of the calf and foot.
The Member concluded that the evidence suggested a significant deterioration in the appellant’s condition between February 2018 and 2020, resulting in her attendance at the Nepean Hospital Emergency Department in July 2020. The Member pointed out that, while Dr New was of the opinion that the appellant’s incapacity resulted from the incident in 2017, and was aggravated when lifting the washing basket, he did so on the basis that the effects of the 2017 injury had not fully resolved and he did not have the history of the physical nature of the work the appellant performed with the first respondent.
The Member considered that Dr Giblin had the correct history that the appellant returned to full duties after the incident in 2017 but did not have the history that the appellant was also recovering from other injuries sustained in that incident. She noted that Dr Giblin diagnosed a soft tissue injury, which was an aggravation of degenerative changes in the lumbar spine, to which the appellant’s employment was the main contributing factor. The Member pointed out that Dr Giblin did not draw a distinction between the employment with the first and second respondents. The Member said, however, that in the context of her having accepted the appellant’s evidence about the nature of the work performed with the first respondent, Dr Giblin’s opinion was supportive of the appellant’s employment with the first respondent having aggravated the underlying degenerative condition and of the employment being the main contributing factor to the aggravation.

The Member turned to the evidence of Dr Silva. She noted that Dr Silva:
(a)    had recorded that the appellant was having problems with her right knee on 18 July 2020 but was also experiencing back pain that day;
(b)    had not recorded any details of the work the appellant was doing with the first respondent;
(c)    attributed the appellant’s whole person impairment of the lumbar spine to the incident on 9 November 2017;
(d)    was of the opinion that the appellant’s back condition was aggravated again on 18 July 2020 and 21 July 2020, and
(e)    took the incorrect further history that the appellant was only absent from work for two weeks and three days after the injury in 2017 and so concluded that there was no impairment attributable to the 2017 injury.
The Member observed that Dr Silva had not taken a history of the work the appellant was doing with the first respondent. She said that, as the letter of instructions to Dr Silva was not in evidence, it was not clear whether Dr Silva was appraised of the appellant’s change of employment. The Member added that, despite the fact that, in his first report, Dr Silva attributed all of the appellant’s whole person impairment to the injury on 9 November 2017, that did not mean that the appellant’s current incapacity flowed from that injury. The Member remarked that there may be multiple causes of an incapacity for work, but that s 16 of the 1987 Act applies if it is determined that the appellant suffered a “disease” injury. The Member further remarked that Dr Silva did not appear to have been asked to provide an opinion as to whether the “nature and conditions” of the appellant’s employment with the first respondent may have contributed to her condition or her work restrictions when assessing the appellant’s whole person impairment.
The Member said that, despite the limited assistance from the medical evidence in the case, she could draw the following conclusions:
(a)    the appellant suffered an injury to her lumbar spine on 9 November 2017, following which she had time off work, was certified fit for some duties by 25 November 2017, but remained off work until 26 February 2018;
(b)    the appellant returned to full duties with the second respondent, during which time she did not seek treatment for her back or report any injury;
(c)    the appellant commenced work with the first respondent on 3 June 2019, which involved physical and at times heavy work, and which was similar to the work the appellant undertook with the second respondent;
(d)    after performing that work during 2019 and 2020, the appellant’s back was sore but was alleviated by rest;
(e)    the appellant left work early on 18 July 2020 (the day prior to her planned leave) because of back pain;
(f)    the appellant experienced immediate lower back pain while lifting a washing basket at home, which caused her to attend Nepean Hospital and her general practitioner, and
(g)    the appellant did not work after 18 July 2020 because of back pain.
The Member referred to the MRI scan undertaken on 31 July 2020 and the degenerative changes recorded in that evidence. She further referred to the EMG study dated 2 September 2020, which she considered was consistent with active right L4/5 radiculopathy. The Member noted that all of the medical practitioners, except for Dr Silva, accepted that the appellant suffered from radiculopathy.
The Member pointed to the appellant’s case against the first respondent, which was that the appellant had suffered an injury to her lumbar spine as a result of the aggravation, acceleration, exacerbation or deterioration of a disease in accordance with s 4(b)(ii) of the 1987 Act. The Member referred to Austin v Director General of Education,[39] in which Clarke JA quoted from the judgment of Windeyer J in Federal Broom Co Pty Ltd v Semlitch[40] and observed that, in applying the “disease” provisions, the decision maker should ask:
“(a)    Was the applicant suffering from a disease?
(b)     If so, was there an aggravation, acceleration, exacerbation or deterioration of it?
(c)     If so, was her (his) employment a contributing factor?
(d)     If so, did a total or partial incapacity for work result from such aggravation, acceleration, exacerbation or deterioration?”[41]
[39] (1994) 10 NSWCCR 373 (Austin).
[40] [1964] HCA 34 (Semlitch).
[41] Austin, 378.
In responding to those questions, the Member determined that the degenerative changes shown on the MRI scan constituted a pre-existing disease, which was consistent with the opinion of Dr Giblin and Dr New and that there had been an aggravation of the disease. The Member applied the observations made by Kitto J and Windeyer J in Semlitch, as well as those of Burke CCJ in Cant v Catholic Schools Office,[42] and concluded that the proper test was whether the aggravation had had an impact on the appellant. She cited presidential authority in which Semlitch and Cant were applied, to say that it is not necessary for the disease to have been made worse.
[42] [2000] NSWCCR 37 (Cant).
The Member accepted that:
“the [appellant’s] symptoms have become objectively and demonstrably worse during the period of her employment with Woolworths. The case law is clear that she need not establish that the pathology of her condition has been aggravated by her employment. As Burke CCJ said in Cant, there is a relevant aggravation if her symptoms have increased and become more serious. I therefore determine that she has sustained aggravation of a disease in the course of her employment with Woolworths.”[43]
[43] Reasons, [243].
The Member proceeded to determine whether the appellant’s employment with the first respondent was the main contributing factor to the aggravation of the appellant’s back condition. The Member considered Snell DP’s review of the authorities on the issue in AV v AW,[44] and concluded that the issue of “main contributing factor” was not purely a medical question. She said that, in this case, Dr Giblin had opined that the appellant’s employment was the only main contributing factor to aggravation of the appellant’s pre-existing condition. The Member concluded that, in the absence of any identified competing factors, the appellant’s employment was the main contributing factor to the aggravation of the appellant’s lumbar disease in accordance with s 4(b)(ii) of the 1987 Act.
[44] [2020] NSWWCCPD 9.
The Member turned to the application of s 16(1) of the 1987 Act, which she noted provides that if an injury consists in the aggravation of a disease, it was deemed to have occurred at the time of the appellant’s incapacity, which was 21 July 2020 (the deemed date of injury). The Member added that s 16(1)(b) of the 1987 Act provides that compensation is payable by the employer that last employed the worker in employment that was a substantial contributing factor to the aggravation of the disease. Applying both s 4(b)(ii) and s 16(1)(b), the Member concluded that the appellant’s employment with the first respondent was the main contributing factor to the aggravation of the disease and that compensation was therefore payable by the first respondent.
The Member proceeded to consider the question of the appellant’s incapacity for work. She noted that the appellant asserted that she had no current work capacity, in accordance with the Certificates of Capacity provided by the various doctors at the Workers Doctors medical clinic. The Member indicated that she did not accept that the appellant had no capacity to work in circumstances where the certificates cited injuries to the right hip, right knee strain and adjustment disorder, as well as the lumbar spine. The Member pointed to the medical evidence, wherein:
(a)    Dr New was of the opinion that the appellant could perform some office work;
(b)    Dr Giblin was of the view that the appellant could work full-time in sedentary duties, probably after some vocational rehabilitation, and
(c)    Dr Silva formed the view that the appellant could work for pre-injury hours as a receptionist or in office work.
The Member said that all three doctors took into account the restrictions on the appellant’s capacity, and, in the circumstances, she preferred those opinions to the opinions of her general practitioners. The Member noted that the appellant was working 36 hours per week over four days, and then reduced her hours to 27. The Member referred to the submission made by the appellant’s representatives that the appellant reduced her working hours partly because of her back pain. The Member observed that the submission was not precisely the evidence given by the appellant. The Member said that, in any event, she did not accept that the appellant could work on selected duties on a full-time basis. She pointed to the opinion of Dr Giblin, who had said that the appellant’s injuries would likely be subjected to aggravation from innocuous events, which the Member said would likely place restrictions on the hours the appellant could work and would probably affect her ability to find and maintain employment. The Member said that she had little evidence as to the work the appellant could perform, although she had worked in office duties and for a funeral director, so that it was likely that the appellant would be able to perform clerical duties.
The Member concluded that:
“The current national minimum wage is $20.33 per hour. If the applicant were able to work for 27 hours per week, at $20.33 per hour, in some office-based or receptionist work, her capacity to earn would be $548.91 per week. The first respondent submitted that her capacity to earn was from $400 to $500 per week. Allowing for periods when she may not be fit for work due to aggravation of her condition and the likelihood that she would have periods out of the workforce as a result, I determine that she has at all material times had the capacity to earn $500 per week in some suitable employment. The award of weekly benefits will reflect that finding.”[45]
[45] Reasons, [258].

The Member also determined that the appellant was entitled to payment of her treatment expenses in accordance with s 60 of the 1987 Act.
The Certificate of Determination issued on 11 August 2021 records:
“The Commission determines:
1. That there is an award for the second respondent.
2. That there is an award for the applicant against the first respondent for weekly benefits as follows:
(a)At the rate of $426.25 per week from 21 July 2020 to 20 October 2020, pursuant to s 36 of the Workers Compensation Act 1987; and
(b)At the rate of $280 per week from 21 October 2020 to date and continuing, pursuant to section 37 of the Workers Compensation Act 1987.
3. That there is an award for the applicant against the first respondent for medical treatment, pursuant to section 60 of the Workers Compensation Act 1987.”

GROUNDS OF APPEAL

The appellant brings three grounds of appeal expressed as follows:
(a)    Ground One: error of law by failing to determine a substantial, clearly articulated argument that was material to the central issue in these proceedings, namely the claim against the second respondent;
(b)    Ground Two: error of law by failing to provide any, or any adequate reasons for entering an award in favour of the second respondent, and
(c)    Ground Three: error of fact by finding that the appellant had current work capacity of $500 per week.

LEGISLATION

Section 4 of the 1987 Act defines injury as follows:
“4      Definition of ‘injury’
In this Act:
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)    does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 16(1) of the 1987 Act relevantly 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.”

SUBMISSIONS

The appellant, unhelpfully, does not provide submissions separately addressing each ground of appeal, as required by the Commission’s Procedural Direction, PIC 7. Practitioners are reminded that a failure to comply with the procedural requirements may result in the appeal being rejected.

Grounds One and Two

The appellant’s submissions

In respect of these two grounds of appeal, the appellant submits that, at the arbitration, her submissions were that her incapacity from July 2020 arose as a result of her accepted injury which was sustained on 9 November 2017. The appellant points to those paragraphs of the Member’s reasons in which the Member:
(a)    recorded the issues to be determined;
(b)    summarised the appellant’s submissions;
(c)    referred to the legislation, and
(d)    reviewed the evidence,
before arriving at her conclusion that the work with the first respondent caused an aggravation of a disease process, which resulted in the appellant’s incapacity.
The appellant submits that the Member then proceeded to deal with the claim against the second respondent which was limited to the making of an award in favour of the second respondent. The appellant presumes that the Member believed that an award in favour of the appellant against the first respondent disposed of the matter, which is wrong.
The appellant asserts that the Member either failed to determine the claim against the second respondent or failed to give reasons for the award entered in favour of the second respondent. The appellant refers to a passage from Wang v State of New South Wales,[46] in which McCallum JA (with whom Macfarlan and Meagher JJA agreed) observed that:
“The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.”[47]
[46] [2019] NSWCA 263 (Wang).
[47] Wang, [63].
The appellant asserts that the Member failed to address the claim against the second respondent and failed to address the “clearly articulated argument that was material to the central to issue in these proceedings”,[48] and thus the Member erred.
[48] Appellant’s submissions, [21].

The first respondent’s submissions

The first respondent indicates that it has not appealed or filed a “cross appeal” in respect of the Member’s Certificate of Determination. Further, the first respondent makes no submissions in respect of Grounds One and Two as those grounds of appeal “do not affect it.”[49]
[49] First respondent’s submissions, [14].

The second respondent’s submissions

The second respondent submits that, at the arbitration, the appellant put forward a case that her incapacity for work from 20 July 2020 resulted from her injury to the lumbar spine on 9 November 2017. The second respondent refers to the Member’s summary of the appellant’s submissions. The second respondent further refers to the Member’s reasons, in which the Member noted that:
(a)    the appellant asserted that she was off work for four months following the injury on 9 November 2017;
(b)    Dr Lim recorded that the appellant had recovered from that injury;
(c)    Dr Calvache-Rubio recorded that the appellant had returned to pre-injury duties after that injury, without symptoms;
(d)    Dr Giblin took the history that the appellant was back at work on full-time, unrestricted duties in 2018, and
(e)    Dr Parmar, In2 Motion and Ms Lun were of the view that the appellant had made a good recovery after that injury.
The second respondent points to the Member’s observation that the appellant’s rehabilitation file was closed approximately three months after the appellant returned to work. The second respondent further points to the Member’s conclusion that the appellant did not return to work two weeks after the injury on 9 November 2017 but rather returned to work on 26 February 2018 because the second respondent was unable to offer the appellant suitable duties.
The second respondent submits that there was no lay or medical evidence that disclosed that the appellant made any complaints about her lumbar spine, sought treatment for her lumbar spine, or underwent radiological investigations after she returned to work in February 2018. The second respondent says that this was in the context of the appellant having sought treatment and having undergone investigations in respect of her right thumb and left shoulder.
The second respondent contends that it is clear that the Member did not accept that there was any incapacity flowing from the injury on 9 November 2017 during the period from the appellant’s return to work in February 2018 and 20 July 2020. The second respondent asserts that the Member did not fail to determine the claim against the second respondent and nor did she fail to give reasons for entering an award in favour of the second respondent.

Ground three

The appellant’s submissions

The appellant submits that the Member found, on the basis of the medical opinions, that the appellant could earn $500 per week in suitable employment, but in doing so failed to afford the appellant’s evidence any weight in circumstances where the Member had previously accepted that evidence. The appellant refers to the appellant’s evidence that she experiences pain in her back that radiates down her right leg and into her foot, she was ingesting heavy medications which affected her ability to drive and could not sit for long periods or sleep for more than two to three hours because of pain. The appellant submits that the Member’s conclusion that the appellant could work 27 hours per week was entirely inconsistent with the appellant’s evidence.
The appellant refers to the discussion of the principles relevant to determining whether a finding of fact was erroneous, as discussed by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr,[50] and as recited by Roche DP in Raulston v Toll Pty Ltd.[51] The appellant also refers to the observations made in Northern NSW Local Health Network v Heggie[52] and by me in Reln (Manufacturing) Pty Ltd v Smith.[53]
[50] (1996) 39 ALJR 505 (Whiteley Muir).
[51] [2011] NSWWCCPD 25 (Raulston).
[52] [2013] NSWCA 255 (Heggie).
[53] [2018] NSWWCCPD 51.

The appellant asserts that the Member completely overlooked the appellant’s evidence in finding that she could earn $500 per week. The appellant says that the Member incorrectly recorded the opinion of Dr New, who was of the view that the appellant could only sit for 30 minutes, had not been able to return to work since the last injury and would require a functional and vocational assessment. The appellant contends that the Member referred to the evidence of Dr New contained in an earlier report, in which he suggested that the appellant may have to return to selected office duties if available. The appellant submits that “selected” duties are very different to office duties and it was clear that no such duties were offered to the appellant.
The appellant says that she submitted to the Member that Dr Silva’s opinion could not be accepted, because he did not find that the appellant was suffering from radiculopathy, which condition was clearly demonstrated by the EMG study performed on 2 September 2020. The appellant asserts that the Member did not respond to that submission, which in itself was an error.
The appellant asserts that the Member overlooked or gave too little weight to the evidence of her radiculopathy and thus erred in finding that the appellant had a capacity to earn $500 per week in suitable work. The appellant says that, on a fair reading of the evidence, the appellant has no current capacity for work, which should be reflected in an appropriate award of weekly compensation.

The first respondent’s submissions

The first respondent contends that the Member did not err in determining that the appellant had a capacity for suitable employment. The first respondent describes the appellant’s complaints of error as:
(a) the Member ought to have preferred the appellant’s statement evidence over the medical evidence, and
(b) the Member ought to have rejected the evidence of Dr New and Dr Silva in relation to the appellant’s capacity for work and physical restrictions.
The first respondent contends that the appellant has not challenged the Member’s findings in relation to Dr Giblin’s report. The first respondent refers to Dr Giblin’s opinion that the appellant would be fit for full-time work in a sedentary role, avoiding the listed restrictions, but that the appellant may need some vocational rehabilitation. The first respondent submits that the Member accepted the opinion of Dr Giblin, except in respect of his opinion that the appellant could work on a full-time basis. The respondent adds that the appellant has not challenged the Member’s findings in relation to her rejection of the WorkCover Certificates of Capacity, which were the only medical opinions that supported the notion that the appellant was “totally incapacitated.” The first respondent says that the appellant predominantly relied upon those certificates to support her submission that she had no current work capacity.
The first respondent submits that, in accordance with Raulston and Heggie, an appeal pursuant to s 352 of the 1998 Act is limited to the identification of error and it is insufficient to show that a different result was open to the Member. The first respondent asserts that it is implicit that the appellant submits that Dr Giblin’s opinion, summarised at [48] above, which was mainly accepted by the Member, was inconsistent with the appellant’s own evidence and the restrictions identified in her appeal submissions. The first respondent submits that pain radiating into the leg, restrictions on driving and sitting, as well as difficulties sleeping, do not necessarily indicate that a person cannot perform sedentary work.
The first respondent contends that the appellant’s failure to challenge the findings in relation to Dr Giblin’s opinion and the Member’s rejection of the Certificates of Capacity results in there being no medical evidence to support a finding that the appellant has no current capacity for work. The first respondent submits that, in any event, the Member carefully dealt with the medical and the lay evidence. The first respondent points to the Member’s observation that there was “little evidence as to the type of work”[54] which the appellant could perform, and that there was evidence that the appellant had experience with office work and had worked for a funeral director. The first respondent submits that those observations are consistent with the opinion of Dr Giblin.
[54] Reasons, [257].
The first respondent refers to the appellant’s submission challenging the Member’s observations in relation to the evidence of Dr New and Dr Silva. The first respondent describes that evidence as “just pieces of evidence synthesised in the overall picture.”[55] The first respondent points to the Member’s conclusions in respect of the opinions of Dr Giblin, Dr New and Dr Silva that:
“All three orthopaedic specialists, therefore, found that she has some capacity for work, and all three referred to her restrictions.”[56]
[55] First respondent’s submissions, [25].
[56] Reasons, [254].
The first respondent submits that those conclusions were not only open to the Member, but cannot be disturbed on appeal, particularly in the light of an absence of challenge to the Member’s findings in relation to the Certificates of Capacity. The first respondent contends that the Member did the best she could do with the limited evidence available to her and the extensive evidence that the appellant had a capacity for suitable employment was overwhelming.
The first respondent asserts that the appellant’s statement evidence did not challenge the restrictions nominated by Dr New, Dr Giblin or Dr Silva, except to say that she could not work without assistance from the workers compensation insurer and did not envisage that her symptoms would resolve or that she would return to work in the near future. The first respondent submits that the appellant did not explain what she meant by “work”, but if it was a reference to her pre-injury employment, that is not the applicable test. The first respondent says that, on the other hand, if the appellant intended to refer to employment within the meaning of s 32A of the 1987 Act, the appellant bore the onus of establishing the suitability of employment. The first respondent contends that “[t]he evidence was slight, unconvincing and simply a conclusion of a lay person.”[57]
[57] First respondent’s submissions, [31].
The first respondent concludes that the Member carefully weighed the evidence before arriving at her conclusion, placing weight on the orthopaedic specialist, which was an exercise entirely open to her.

Second respondent’s submissions

The second respondent indicates that the Member entered an award in the second respondent’s favour, found the first respondent liable and entered an award for weekly payments against the first respondent. The second respondent says, therefore, that it does not make any further submissions in relation to the appellant’s capacity for work, other than to rely on the first respondent’s submissions in respect of this ground of appeal.

THE RELIEF SOUGHT

The appellant seeks an award of weekly payments against the second respondent at the rate of $1,030.47, or, in the event that Ground Two of the appeal is unsuccessful, an award at the rate of $530.47. Further, the appellant seeks an award against the second respondent in respect of her claim for s 60 expenses.
The first respondent seeks to have Ground Three of the appeal dismissed. The first respondent adds that, if the appeal in respect of Grounds One and Two is upheld, the matter should be remitted for re-determination, but only on the basis of that issue.
The third respondent does not express any relief sought.

CONSIDERATION

The appellant does not seek to disturb the Member’s reasoned conclusion that the injury (the aggravation of the disease) in fact occurred as a consequence of the nature of the appellant’s duties and no appeal against the Member’s determination has been raised by either respondent.

Grounds One and Two

The appellant’s first ground of appeal asserts error on the part of the Member in that the Member failed to make a determination in respect of whether the appellant’s incapacity in 2020 arose from the injury on 9 November 2017, the subsequent “disease” injury, or both. The substance of the appellant’s submissions is that when the Member determined that the nature of the work with the first respondent aggravated the appellant’s disease condition in her lumbar spine, the Member went no further in terms of the issues raised that remained for determination.
The appellant also asserts in Ground Two of the appeal that the Member failed to give reasons in respect of her decision to enter an award in favour of the second respondent.
At the arbitration, the appellant submitted that the accepted incident on 9 November 2017 materially contributed to the appellant’s incapacity, and thus, it was open on the evidence for the Member to find that both injuries contributed to the appellant’s incapacity.[58] The first respondent identified that the issue for determination was whether the appellant suffered an injury in the form of an aggravation of a disease as a consequence of the nature of the appellant’s work duties, and if so, where liability lay for her incapacity.[59] The second respondent’s case was that the appellant had fully recovered from the injury on 9 November 2017, there was no incapacity flowing from that injury, and in any event the “disease” provisions provided that the last employer, in this case the first respondent, was liable for the payments of compensation.[60]
[58] Transcript of Proceedings (T), Temple v Woolworths Group Limited [2021] NSWPIC 287, T 20.1–6.
[59] T 3.10–13.
[60] T 3.28–32.
The appellant’s submissions, omitting her submissions referable to the various medical opinions, were as follows:
“The combination of the original index incident on 9 November ’17 and the nature and conditions of her work with Woolworths caused the applicant’s condition to become so symptomatic by 21 July 2020 that she was incapacitated and as a result is entitled to claim weekly benefits under section 33 of the Workers Compensation Act.
… [I]t’s important to remember that section 33 requires for a finding incapacity that entitles the applicant to ... weekly compensation. You have to be satisfied that the injury resulted in incapacity and that ... the incapacity resulted from the injury and applying cases such as State of New South Wales v Rattenbury [citation omitted], you simply have to be satisfied that there was a causal connection and, of course, Rattenbury applied Kooragang v Bates.
That means, Member, that you have to be satisfied that there was a material contribution to the incapacity and we say that that’s quite relevant when you look at the medical evidence as it relates to the events of 9 November 2017 and, of course, there is the temporal connection between the duties of the applicant with Woolworths were immediately prior to the incapacity and the event.”[61]
“Now, Member, the two cases are not mutually exclusive and consistent with Rattenbury there are – there can be multiple causes of incapacity and it is open to you to find both that the events of 9 November ’17 and also the nature and conditions of the applicant’s employment are both material – have both made material contributions to this incapacity.”[62]
“So, Member, there are effectively two schools of thought between the medical experts. There’s Dr New and Dr Silva who focus on the forklift incident in 2017 and Dr Giblin and Dr Lim who focus on the events of July 2020 and the nature and conditions of the applicant’s employment. There are no competing opinions to those and they’re not, as I said, Member, mutually exclusive. It is readily available to you to find that the nature and conditions of the applicant’s employment aggravated the original injury to the lower back on 9 November ’17 and if you do find that then you’re entitled to make an award for the applicant against both the first and second respondents.”[63]
[61] T 9.34–T 10.30.
[62] T 18.3–18.9.
[63] T 19.29–20.6.
Neither respondent made submissions directly in response to those submissions.
The pleadings, and the Member’s reasons, clearly identified that the case against the second respondent was that the appellant had suffered a “frank” injury on 9 November 2017, that is, a personal injury within the meaning of s 4(a) of the 1987 Act, rather than a “disease injury” as defined by s 4(b) of the 1987 Act. The parties did not address on the application of s 16 of the 1987 Act in those circumstances, in the event that the appellant succeeded in establishing an injury pursuant to s 4(b)(ii) of the 1987 Act with a deemed date of 21 July 2020 as against the first respondent.
It is difficult to understand how the decision in State of New South Wales v Rattenbury,[64]
[64] [2015] NSWWCCPD 46 (Rattenbury).
referred to by the appellant, is applicable in the circumstances of this case, other than that in Rattenbury, Roche DP adopted the ratio expressed in higher authority that all that is required is that the incapacity has resulted from the relevant injury and that there can be multiple causes of an incapacity.
More relevantly, in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd,[65] the worker was injured in a fall on 11 February 1992 in the course of his employment. The fall aggravated and made symptomatic pre-existing degenerative change in the worker’s back. He suffered a further injury to his back between 13 November 1995 and 29 April 1996, due to the “nature and conditions” of his employment with a later employer. The primary judge made an award of weekly compensation from 29 April 1996, and apportioned liability between the employers in accordance with the apportionment provisions in s 22 of the 1987 Act. The first employer appealed.
[65] (1998) 45 NSWLR 606 (Mecha).
The appeal was dismissed. The majority held that, although the injury on 11 February 1992 could fall within either paragraph (a) or (b)(ii) of the definition in s 4, 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 independent of its aggravating effects on a previous existing disease, but as being confined to what are entirely injuries by way of an aggravation.
In a later appeal from a decision of the Compensation Court, Colliar v Bulley,[66] the Court of Appeal, differently constituted, came to the opposite conclusion.
[66] [2000] NSWCA 1 (Colliar).
The Court of Appeal dealt with the tension between Mecha and Colliar in Rail Services Australia v Dimovski & Anor,[67] and considered the application of s 16 of the 1987 Act in circumstances where the worker had suffered a personal injury within the meaning of s 4(a) of the 1987 Act and an aggravation which fell within the meaning of s 4(b)(ii) of the 1987 Act. In Dimovski, the worker alleged that he sustained two injuries to his left leg while employed by the appellant, one as a result of the nature and conditions of his work between 1 July 1996 and 15 August 1998, and the other a frank injury on 28 May 1998. The appellant sought a contribution from the second respondent to the compensation payable to the worker in accordance with the apportionment provisions in s 22 of the 1987 Act. The primary judge had found that s 16 of the 1987 Act applied so that the whole award was to be met by the appellant.
[67] [2004] NSWCA 267 (Dimovski).
Handley JA made the following observations:
“Section 16 applies where the injury consists in the aggravation etc of a disease, and sub-section (1)(b) provides that in such a case compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor. The section is based on para (b) of the definition of injury in s 4 which includes in sub-para (b)(ii) the aggravation etc of a disease where the employment was a contributing factor.”[68]
And:
“The Judge’s findings in this case [para 21] establish that the worker suffered a frank injury to his left knee on 28 May 1998 which caused the pathology found by Dr Habib on 10 August that was confirmed by the MRI in January 1999. She found that this injury aggravated the effect of the earlier injury sustained while he was employed by the second respondent. As such the injury fell within para (a) of the definition in s 4. … If Colliar v Bulley is authority for the proposition that an injury of this nature is within s 16 I would decline to follow it for the reasons given by Neilson CCJ in Lyons. In my judgment the frank injury to the left knee was not within s 16.”[69]
[68] Dimovski, [17].
[69] Dimovski, [29].
Hodgson JA made the following further observations:
“In my opinion, the decision in Mecha is to be preferred. 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. Accordingly, the application of s 22 was not excluded by s 16. The primary judge should have considered whether the incapacity of the worker giving rise to the entitlement to weekly compensation resulted partly from injury occurring in the course of the worker’s employment by SRA, as well as from injuries occurring in the course of his employment with Rail Services.”[70]
[70] Dimovski, [68]–[70].
In this case, the Member determined that the appellant suffered an aggravation of a disease in the course of her employment with the first respondent and that the appellant’s employment with the first respondent was the main contributing factor to that aggravation. She then reasoned as follows:
“Pursuant to section 16(1) of the 1987 Act, as the applicant’s injury consists in the aggravation of a disease, it is deemed to have happened at the time of her incapacity. I accept that the applicant has an incapacity for work. The deemed date of injury is therefore 21 July 2020.
Section 16(1)(b) of the 1987 Act provides that compensation is payable by the employer that last employed the worker in employment that was a substantial contributing factor to the aggravation of the disease. Section 4(b)(ii) has been amended to require that employment is the main contributing factor to the aggravation. The applicant’s employment with Woolworths was the main contributing factor to the aggravation. Compensation is therefore payable by Woolworths.
I am satisfied that the applicant has an incapacity for work as a result of injury on 21 July 2020, when she was employed by the first respondent.
There will be an award for the second respondent; and the award for weekly benefits and medical expenses will be made against the first respondent, Woolworths.”[71]
[71] Reasons, [249]–[252].
It is apparent from the above reasons that the Member proceeded on the basis that s 16 of the 1987 Act applied to both the injury deemed to have occurred on 21 July 2020 and the frank injury that occurred on 9 November 2017. In accordance with Mecha and Dimovski, s 16 did not apply to the injury on 9 November 2017, and thus the Member erred in failing to deal with the appellant’s submission that she suffered two injuries which both materially contributed to her incapacity. In so far as the Member entered an award in favour of the second respondent, it can be inferred that the reasoning provided by the Member was that s 16 applied to the injury on 9 November 2017. That reasoning was wrong. It must be said that the Member was not assisted by the parties’ failure to make submissions as to the proper application of s 16 and in relation to the well-established authorities discussed above.

As a consequence of that error, the Member failed to address the case raised by the appellant that the frank injury materially contributed to the appellant’s incapacity, and, by applying s 16, did not proceed to determine whether the appellant had recovered from the effects of the injury on 9 November 2017, a notion that was resisted by the appellant and argued against by the first respondent.
It follows that Ground One (failure to determine an argument which was central to the issues) and Ground Two (failure to give reasons for making an award in favour of the second respondent) of the appeal succeed. The issue requires re-determination.

Ground Three

The errors identified in Grounds One and Two require the matter to be re-determined. The re-determination will require a consideration of the causation of any incapacity suffered by the appellant, which necessarily involves a review of the medical evidence about that incapacity. It may also require a consideration of the appellant’s entitlement to compensation, given that the amount of the pre-injury average weekly earnings with the first respondent is different to that of the second respondent.
The errors identified in Grounds One and Two have therefore impacted the Member’s determinations in respect of the claim for weekly payments and it is therefore appropriate for the whole Certificate of Determination to be revoked and the matter to be remitted for re-determination of all issues.

CONCLUSION

Further submissions are required in order to address some of the issues raised in this appeal. The Member’s Certificate of Determination requires revocation and the matter to be remitted to a different member for re-determination of all issues.

DECISION

The Member’s Certificate of Determination dated 11 August 2021 is revoked. The matter is remitted to a different Member for re-determination.

Elizabeth Wood
DEPUTY PRESIDENT

9 May 2022