Viera v Wideform Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Viera v Wideform Pty Limited [2021] NSWPIC 250
APPLICANT:	Carlos Viera
RESPONDENT:	Wideform Pty Limited
MEMBER:	Deborah Moore
DATE OF DECISION:	16 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Applicant worked for respondent doing heavy work for almost 20 years; sustained injuries to his neck and both shoulders on several occasions for which he claimed lump sum compensation on the basis of a disease injury; with a deemed date of 3 June 2019; Respondent accepted liability for three separate injuries with three separate claim numbers in 2014, 2016 and 2017; Held- applicant sustained injuries to both upper extremities (shoulders) and the cervical spine as a result of the nature and conditions of his employment with the respondent from about 2000 to October 2019 (including events on 25 July 2014, 10 February 2016 and 22 September 2017) with the deemed date of injury being 3 June 2019; the applicant’s employment was the main contributing factor to his injuries; matter remitted to the President for referral to a Medical Assessor for assessment of whole person impairment.
DETERMINATIONS MADE:	1. The applicant sustained injuries to both upper extremities (shoulders) and the cervical spine as a result of the nature and conditions of his employment with the respondent from about 2000 to October 2019 (including events on 25 July 2014, 10 February 2016 and 22 September 2017) the deemed date of injury being 3 June 2019. 2. The applicant’s employment was the main contributing factor to his injuries. 3. The permanent impairment dispute in respect of both upper extremities (shoulders) and the cervical spine resulting from a deemed date of injury of 3 June 2019 is remitted to the President for referral to a Medical Assessor (MA) for assessment of whole person impairment. 4. The documents to be sent to the MA are the Application to Resolve a Dispute and the Reply.

STATEMENT OF REASONS

BACKGROUND

The applicant, Carlos Viera, was employed by the respondent, Wideform Pty Ltd, as a formwork carpenter from 2000 to October 2019.
His duties he said were very heavy and physically demanding, lifting and carrying timbers, girders and forms. He was also required to work with his arms above shoulder height for long periods.
He said that he regularly worked 8-10 hours per day, 6 days per week.
On or around 25 July 2014 he noticed “problems with my neck.”
On 10 February 2016 he injured his left shoulder.
On 22 September 2017 he injured his right shoulder.
He remained at work with the respondent until he was terminated in October 2019.
By an Application to Resolve a Dispute (the Application) registered in the Commission on 19 April 2021 he sought weekly benefits from 18 May 2016 to 25 April 2017, s 60 expenses, and lump sum compensation in respect of the cervical spine and both upper extremities.
The date of injury was nominated as 3 June 2019.
The claim pursuant to s66 was in respect of 7% whole person impairment (WPI) of the cervical spine, 6% WPI for the left upper extremity (shoulder) and 2% WPI for the right upper extremity (shoulder), a total of 15% WPI, resulting from the deemed date of injury of 3 June 2019.
Liability was accepted by the insurer in respect of three separate claims, as identified above, but denied with respect to the “nature and conditions” claim.
At a teleconference before me on 18 May 2021, the claims for weekly benefits and s 60 expenses were resolved, but not the claim for lump sum compensation, which was then listed for hearing on 30 June 2021.

ISSUES FOR DETERMINATION

The only issue for determination is the correct date of injury for the purposes of the claim pursuant to s 66. In other words, do the injuries and impairments claimed by the applicant result from the “nature and conditions” of employment with the respondent or the three specific events referred to above?
Resolution of that dispute requires consideration of the law as it applies to the facts of this case.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attached documents;
(b) Reply and attached documents.

REVIEW OF EVIDENCE

Applicant’s statement

In his statement dated 2 December 2020 the applicant said:
“My duties as a formwork carpenter involved very heavy and physically demanding work. I regularly worked 8-10 hours per day, 6 days per week for the Respondent.
Due to the work I developed pain in my neck and both shoulders due to the duties I performed.
The work involved lifting and carrying heavy items including timbers, girders and forms. I had to frequently work with my arms above shoulder height for long periods; the work involved using tools and carrying timbers, girders and forms above shoulder height. I had to fix timbers, girders and forms into place, frame up formwork and break it down. All of these tasks were heavy and physically demanding.
The work was repetitive and I frequently had to look upwards while working which put additional strain on my shoulders and neck.
On or around 25 July 2014 I first noticed problems with my neck. I had been lifting and passing timbers above shoulder height when I noticed pain in my neck. I had a pinched nerve, which resulted in a lack of sensation in my shoulder. I received medical treatment for this pinched nerve, including a cortisone injection. Following this treatment the pain in my neck settled down.
On 10 February 2016 I was building form work and was standing in a scissor lift supporting a three metre long aluminium girder, weighing around 20kg, that needed to be installed as part of the next level's formwork. One of my co-workers was placing an aero-prop under the girder to support it. As I held the girder away from my body with my left arm while I waited for the support to be installed, I felt a pulling sensation in my left shoulder. I stopped work and reported the injury to first aid. I rested for a while before continuing with my normal duties as best as I could.
I continued working while the pain in my left shoulder became steadily more painful. had more and more trouble lifting items above shoulder height with my left arm. I continued working for several months, to the point where the pain was unbearable and I sought further medical treatment…
On 24 August 2016 I had a left shoulder arthroscopic rotator cuff repair at Shellharbour Private Hospital under the care of Dr Haber…
Following surgery I was certified unfit to work and remained off work until 19 September 2016, when I returned to work on light duties. Dr Haber continued to review my shoulder. I had a fairly good recovery; however I continued to experience pain in my left shoulder. I remained on suitable duties, with restrictions against doing overtime, until 28 April 2017, when I was certified fit for normal hours. I was still restricted to working in the Respondent's yard rather than out on site.
While working in the yard at Unanderra I was initially on light duties. I was restricted to no lifting and mostly performed cleaning and light labouring tasks around the yard. There was no heavy lifting and no work above shoulder height. Once I was certified fit for normal hours and a larger lifting capacity, I started doing carpentry work at the yard, mostly building shutters and frames for use on construction sites. The work still did not involve much heavy lifting; I was able to do much of the work at waist height.
On 22 September 2017 I was working the yard building frames, and one of the frames became stuck in the jig machine. I lifted up the frame forcefully to try and loosen it and as I did I felt the onset of pain in my right shoulder. The lifting and stacking involved in the work of building frames also made the pain in my right shoulder more noticeable…
On 10 January 2018 I had a right arthroscopic rotator cuff repair under the care of Dr Haber..
I was off work following surgery until 22 February 2018, when I returned to work on suitable duties with restrictions of not working overtime…
I remained on light duties until late 2018, when I returned to my pre-injury duties and was allowed back on construction sites while working.
On my return to work on construction sites my duties were similar to those I was doing initially. My time was spent lifting and carrying timbers, girders and forms, fixing them in place, and framing up formwork. I did a fair amount of lifting and used tools and nailed above shoulder height. On days when I did heavier work, or had to carry heavier loads such as a full sheet of plywood, I ended up experiencing increased pain in both shoulders, particularly my left shoulder…
I experience pain and restriction of movement in both my shoulders and my neck. I have pain and stiffness in both shoulders, with my left shoulder more painful than my right. I tend to use my left shoulder more when working and for weightbearing when I am carrying heavy items, which I feel has contributed to my left shoulder being more painful than my right…
As a result of my work with the Respondent and frank injuries on 10 February 2016 and 22 September 2017 I experience pain and restriction of movement in both my shoulders and my neck. I have pain and stiffness in both shoulders, with my left shoulder more painful than my right.
I have noticed pain and stiffness in my neck, which contributes to my shoulder pain, particularly when working with my arms above my head and looking up…”

The Medical Evidence

There are numerous reports in the Application but most relevant to the issue in dispute are those of Dr Bowman, Dr Haber and Dr Bodel.
I do not propose to comment on all of the reports in detail, given that the respondent accepts that the applicant injured his neck and both shoulders during the course of his employment.
Dr Bowman first saw the applicant on 16 May 2016. In a report dated 13 March 2020 he said:
“Mr Vieira reported that he had Injured his left shoulder in February 2016. He had acute onset pain while lifting framework above shoulder height…The Injury Is consistent with the mechanism described. The incident as described Is a substantial contributing factor…
[On 25 May 2017]…Mr Vieira reported that he was lifting a 20kg shutter at work when it got jammed and he jerked it and got sudden pain In the right shoulder…
The Injury related to a specific event as discussed above. It is likely that there had been gradual development of rotator cuff pathology due to the nature of his work as well as this specific Injurious event. Therefore his work is a substantial contributing factor…”
In a report dated 21 February 2020 Dr Haber said:
“The patient was referred to me by Dr Flinn for assessment of left shoulder pain and was first seen by me on the 16 June 2016. The patient gave a history of developing pain following lifting a beam above shoulder height on the 10th February 2016. He described the pain as severe and was on restricted duties at work.
Carlos Vieira underwent a left shoulder ultrasound at the Southern Orthopaedics Musculoskeletal Ultrasound Clinic on the 16 June 2016…
There was evidence of a full thickness tear of the rotator cuff tendons…
Carlos Vieira underwent a left shoulder arthroscopic rotator cuff repair at Shellharbour Private Hospital on the 24/08/2016…
21 November 2017…Carlos Vieira was referred to me by Dr Bowman for assessment of right shoulder pain. He described developing pain following lifting and stacking shutters on the 27th September 2017…
Carlos Vieira underwent a right shoulder arthroscopic rotator cuff repair on the 10 January 2018…
I feel the above-mentioned diagnosis of bilateral full thickness rotator cuff tear is consistent with the reported mechanism. From the history obtained, I do believe the patient’s employment and injuries were a substantial contributing factor to his condition and the need for surgery…
In my opinion Carlos Vieira's bilateral rotator cuff tears are due to his occupational duties as a formwork carpenter and the above-mentioned injuries. From the history obtained I did believe the patient's employment was a substantial contributing factor to his condition and the need for surgery…
In my opinion [his] bilateral rotator cuff tears are due to his occupational duties as a formwork carpenter and the above-mentioned injuries…”

In a further report dated 13 March 2020, he said:
“The Injury related to a specific event as discussed above. It is likely that there had been gradual development of rotator cuff pathology due to the nature of his work as well as this specific Injurious event. Therefore his work is a substantial contributing factor.”
In his final report dated 8 March 2021, he said:
“I have reviewed Carlos's assessment by Dr. Bode! dated the 26.3.2019. He states ‘... there is a direct causal link between the two episodes of injury and the nature and conditions...’
He further states ‘ ....[his condition] is a disease-process of gradual onset with underlying rotator cuff pathology which has been aggravated, accelerated, exacerbated· and deteriorated ...’
I agree with the above statements from Dr. Bodel.
There is plentiful medical evidence that repetitive lifting Is a major risk factor for the development of rotator cuff tears. It is highly probable that Carlos's many years of working as a framework carpenter has placed increased demands on his shoulders.
As their might have been degenerative changes in his shoulder prior to the Injuries, these were completely asymptomatic, hence the patient's Injuries were a substantial contributing factor to his condition and need for surgery.”
Dr Bodel saw the applicant at the request of his solicitor. In his initial report dated 26 March 2019 he said
“This gentleman has worked full time in formwork carpentry since 2000 as I have said. This is quite physical work…
He first suffered an injury to his left shoulder at work on 10 February 2016…
While doing that normal duty work he had a further injury and that was to the right shoulder…
He states that since returning to work his original left shoulder has deteriorated a little…
The history of this gentleman's injuries to both shoulders is contained in the report above. He has also injured his neck and in reality the injuries have occurred as a consequence of the nature and conditions of his work doing heavy formwork carpentry work since the year 2000…
There is a direct causal link between the two episodes of injury and the nature and conditions of his work and his ongoing pathology in the neck and both shoulders…
In part this gentleman's clinical condition is a disease process of gradual onset with underlying rotator cuff pathology which has been aggravated, accelerated, exacerbated and deteriorated by the nature of work and the specific events that occurred at work…
The final level of Whole Person Impairment is determined by combining the 7% for the cervical spine, 6% and 2% for both upper extremities using the Combined Values Chart on Page 604 of AMA 5 and the overall level of Whole Person Impairment is a 15% Whole Person Impairment in this case…”
In a further report dated 9 December 2019 he said:
“To explain my view in regard to assessment, I would indicate the following.
This gentleman was 60 years of age when I examined him. He has degenerative disc disease in the cervical spine and rotator cuff pathology in the region of both shoulders. Clinically these are constitutional variants which are peculiar to this gentleman. They are largely based on his genetic profile and all of us by the age of 60 will have some of these degenerative processes as part of the aging process. Whether they are symptomatic or ‘injured’ is another matter, but the pathology is a generalised form of the aging process which is a naturally occurring process.
This gentleman then has worked in a very heavy industry as a formwork carpenter. At the time of my examination, he indicated to me that he had been doing this type of work at least since the year 2000 when he was just turning 40. He had also worked in heavy industry prior to that.
The natural history of this type of work which is very intense in areas of the body such as the neck and both shoulders is that the nature of work in general will cause aggravation, acceleration, exacerbation and deterioration to the underlying disease process of the degenerative disc disease in the cervical spine and the rotator cuff pathology in both shoulders
The specific recorded events have caused some additional structural damage but in my view they do not present the totality of his ‘injury’ in accordance with the WorkCover definitions and that it is more appropriate to assess this gentleman globally because of the underlying disease process which has been aggravated, exacerbated, accelerated and deteriorated by the nature of his work in general. I would hold the view that it is quite appropriate in this circumstance to assess the overall level of Whole Person Impairment in association with all of the areas of injury as a result of the nature conditions of work in general and an appropriate date of injury for this ‘injury’ would be the last day of his work as a deemed date of injury.
I hope that this further clarifies the medical view of the pathology and the associated injury in this circumstance. This underlying disease process is not caused by work as such (Section 15) but is the aggravation, acceleration, exacerbation and deterioration of a disease process which is not specifically work related and that work is the main substantial contributing factor to that aggravation, acceleration, exacerbation and deterioration in this circumstance (Section 16).”
In a further report dated 4 May 2020 Dr Bodel said:
“At the outset I should indicate that Mr Vieira was clearly asked about any past history of injury…He made no mention of the previous neck injury in 2014, to which the insurer refers.
It is very difficult therefore for me to indicate whether there is any causal link between his current complaints in the neck, which are clearly seen clinically, and that earlier injury. 1 am however satisfied that the injuries to the shoulders and the mechanism of those injuries has probably caused further aggravation, acceleration, exacerbation and deterioration of a disease process in the cervical spine, being the degenerative disc disease that probably existed in that region, although again no x-rays or scans of the neck were provided to confirm that…
I may need to re-examine him clinically or at the very least have the opportunity to view his MRI scans or CT scans or whatever exists in regard to the neck in the previous injury, to be able to be absolutely certain.”
In a supplementary report dated 21 June 2020 he said:
“I have read the enclosed copy of the report of the MRI scan of the cervical spine which is dated 26 September 2014. This clearly shows evidence of disc pathology throughout the cervical spine but principally at CS/6 where there is moderate to marked bilateral exit foraminal narrowing due to disc/osteophyte formation. Moderate central canal narrowing with some flattening of the cord anteroposteriorly. No myelomalacia. At the C6/7 level there is also a small disc protrusion with an annular tear and minor exit foraminal narrowing. This type of pathology does lead to neck pain and referred pain into the arms with the possibility of nerve root compression at the CS/6 level, based on the appearances mentioned there. I note that on 26 September 2014 he also had a block injection in the neck. The exact level of the injection is not identified in the report but I assume that the injection was done at the CS/6 level, which was the main area of identified pathology. This underlying pathology which is now confirmed in a set of films nearly six years ago, does confirm that at the very least the injury to that region is an aggravation, acceleration, exacerbation and deterioration of an underlying disease process, being the degenerative disc disease reported in that film. 1 note also that you have indicated that he had minimal treatment at that time but did have a ‘cortisone injection’, following which the pain in his neck settled down. That is understandable and not an unexpected outcome following that approach to treatment.”

In his final report dated 29 March 2021 Dr Bodel said:
“Thank you for your letter of 22 February 2021. I note that you have asked specifically for clarification in regard to this gentleman's level of assessable impairment. I have determined that ‘injury’ is the aggravation, acceleration, exacerbation and deterioration of a disease process of gradual onset and l confirm that the nature and conditions of work is the main substantial contributing factor by way of aggravation, acceleration, exacerbation and deterioration of that disease process and that has been caused by work.”
The applicant was seen by Dr Deshpande at the request of the insurer on 10 July 2019. In a report dated 16 July 2019 Dr Deshpande said:
“He recalls several injuries to both his shoulders on different occasions.
On 25/7/2014 he felt pain in the right shoulder and neck while lifting some timber. Physiotherapy was given when the neck and arm symptoms did not improve. He was referred to Dr Jaegar, a neurosurgeon who diagnosed C5/6 disc narrowing and C6 nerve root compression on MRI examination.
Conservative treatment was given and he eventually returned to normal work.
On 10/2/2016 he suffered a left shoulder injury and underwent left shoulder surgery by Dr Haber. After some time with physiotherapy he improved and returned to pre- injury duties.
In August 2017, Mr Viera stated he hurt his left shoulder lifting a girder.
On 22/9/2017 he suffered an injury to his right shoulder while lifting a shutter beam over the head.
After investigations he was referred to Dr Haber, a shoulder surgeon. Dr Haber performed surgery on his right shoulder on 10/1/2018.
He was declared fit to return to work on 19/9/2018.”
Dr Deshpande diagnosed “Bilateral shoulder supraspinatus tears. Cervical disc degeneration at C5/6 with C6 compression which resolved after conservative treatment.”
He was then asked:
“Please outline your current diagnosis as a result of incident on: [not stated]
He suffered three separate work- related accidents. From these injuries he recovered and returned to pre- injury duties. He is presently working full time on normal duties…”
Dr Deshpande then assessed WPI, adding:
“The first accident in 2014 caused a neck injury…, he falls in cervical category II. This gives him a 5% WPI…
The impairment applies to both shoulders hurt on different dates…”
In a further report dated 29 January 2021 Dr Deshpande was asked a number of questions and these with his responses are as follows:
“Please provide us with your updated opinion as to causation: i.e. whether the claimant's alleged permanent impairment of his right shoulder, left shoulder and neck more likely relates to:
(a) The 3 separate frank injuries as detailed above.
(b) The alleged nature and conditions / aggravation of a disease claim.
Mr Vieira has worked as a carpenter most of his working life. His work involved constant use of his upper limbs and overhead activities. He suffered a number of injuries during the course of his employment. The reported incidents were on 25/7/2014,10/2/2016 and 22/9/2017.
I have read the reports from Dr Haber and Dr Bodel.
I agree with Dr Bode! that Mr Vieira suffered aggravation of the disease process of cervical disc degeneration and degeneration of the rotator cuff disease in both shoulders as a result of his employment and the injuries reported as above.
In my opinion cervical disc degeneration and rotator cuff disease are constitutional age related conditions which are often aggravated by work injuries.
He suffered three separate injuries as reported and these would have caused the aggravation. In my opinion the three separate incidents are more likely to have caused the impairment.”

FINDINGS AND REASONS

Section 4 of the Workers Compensation Act 1987 (the 1987 Act) defines “injury” as follows:
“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…”
In order to be satisfied that an injury has occurred, there must be evidence of a sudden or identifiable pathological change: Castro v State Transit Authority (NSW) [2000] NSWCC 12; or as stated by Neilson CCJ in Lyons v MasterBuilders Association of NSW Pty Ltd (2003) 25 NSWCCR 422, [429] “the word ‘injury’ refers to both the event and the pathology arising from it”.
The issue of causation must be determined based on the facts in each case. The accepted view regarding causation is set out in Kooragang Cement Pty Ltd v Bates 10 NSWCCR 796 where Kirby J stated:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts… What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
The applicant relies on s 4(b)(ii) of the 1987 Act, namely an aggravation, acceleration, exacerbation or deterioration of the underlying pathology in his neck and both shoulders arising out of or in the course of his employment with the respondent.
What constitutes an aggravation of a disease process was discussed by Windeyer J in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626 (Semlitch): “The question that each poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient”.
Prior to the 2012 amendments, s 4(b)(ii) of the 1987 Act provided that the employment had to be a contributing factor to the aggravation of a disease, and that being the case, in accordance with s 9A of the 1987 Act, it had to be a substantial contributing factor to the aggravation as opposed to the disease itself.
This was confirmed by Burke CCJ in Harpur v State Rail Authority (NSW) [2000] NSWCC 3; and in Cant v Catholic Schools Office [2000] NSWCC 37 where he stated: “… the employment is required to substantially contribute to the aggravation and not the pre-existing condition other than by way of such aggravation. The frame of reference is the contribution to the aggravation not to the overall disease.”
In other words, the employment needs to be the main contributing factor to the aggravation of the disease rather than the main contributing factor to the disease itself.
There is no real dispute that the applicant’s duties were heavy and demanding. He was also required to frequently look upwards and work with his arms elevated. He worked between 8 and 10 hours per day, often 6 days per week. He worked for the respondent for almost 20 years.
I accept his statement in this regard. It is consistent with the description he gave to the various doctors referred to above.
As noted earlier, the respondent accepted that the applicant injured himself in the manner he described.
He also said that he considered that his condition was “as a result of my work with the respondent” and the specific events noted above.
In my view, there is ample evidence to conclude that the applicant suffers from a disease within the meaning of s 4(b)(ii) of the 1987 Act for reasons that follow.
Drs Bodel, Haber and Bowman all support that conclusion, as evidenced by their reports summarised above.
Dr Bowman noted in 2016 that “It is likely that there had been gradual development of rotator cuff pathology due to the nature of his work as well as this specific Injurious event.”
Dr Haber observed reduced tendon quality at operation in January 2018.
Dr Bodel reviewed the MRI of the cervical spine taken on 26 September 2014 and noted:
“This underlying pathology…does confirm that at the very least the injury to that region is an aggravation, acceleration, exacerbation and deterioration of an underlying disease process, being the degenerative disc disease reported in that film.”
In other words, as Counsel for the applicant put it, the underlying pathology was damaged on a daily basis, and the specific incidents are very much a part of the nature of the work which put strain on the neck and shoulders.
As Dr Bodel explained in his initial report:
“This gentleman is back at his pre-injury employment.
He is now 60 years of age and he is struggling a little because of the left shoulder pain.
In the longer term it would be prudent for him to be put onto modified duties if at all possible as unrestricted heavy formwork carpentry work is likely to cause further problems with these shoulders. The nature of the work often involves a lot of heavy lifting particularly overhead and these shoulders which have now been surgical [sic] repaired, in a 60-year-old, are going to struggle to maintain function in the short to medium term. This gentleman did return to lighter duty work after each surgical repair and then eventually to normal duties before injuring the shoulder on the right hand side. He is now back at normal duties but is struggling because of increasing left shoulder symptoms. This is inevitable in my view because of the type of pathology present in this circumstance in a man who is now 60 years of age.”
Dr Bodel clearly explained his diagnosis when he said:
“He has degenerative disc disease in the cervical spine and rotator cuff pathology in the region of both shoulders. Clinically these are constitutional variants which are peculiar to this gentleman. They are largely based on his genetic profile and all of us by the age of 60 will have some of these degenerative processes as part of the aging process. Whether they are symptomatic or ’injured’ is another matter, but the pathology is a generalised form of the aging process which is a naturally occurring process…
The specific recorded events have caused some additional structural damage but in my view they do not present the totality of his ‘injury’ in accordance with the WorkCover definitions and that it is more appropriate to assess this gentleman globally because of the underlying disease process which has been aggravated, exacerbated, accelerated and deteriorated by the nature of his work in general.”
In my view, based on Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at [509]-[510], Dr Bodel “had a fair climate upon which he based his decision”. He obtained a comprehensive history of the applicant’s duties, found restrictions of movement on clinical examination and had the opportunity to view the radiological material.
Dr Bodel’s opinion is supported by the treating doctors and I accept their opinions for the reasons given above.
I acknowledge that on the face of it, it is understandable that the insurer concluded that the applicant had sustained three separate injuries, each with their own claim number, as Dr Deshpande opined.
The difficulty I have with Dr Deshpande’s opinion in his more recent report is that he does not adequately explain his conclusion that “the three separate incidents are more likely to have caused the impairment.” He has not, in my view properly identify the facts and reasoning process which he asserts justifies his opinion .
Other features of his report also cause me some concern.
There is no doubt that Dr Deshpande’s attention was drawn to the specific incidents because of the manner in which certain questions were put to him.
In addition, he does not appear to entirely discount the contribution made by the applicant’s work duties when he said: “In my opinion cervical disc degeneration and rotator cuff disease are constitutional age related conditions which are often aggravated by work injuries.” (My emphasis).
In short, he does not seem to entirely disagree with the opinions of the other doctors referred to above.
Counsel for the respondent submitted that it was the three frank injuries that caused the need for surgery and hence the impairment. He conceded that those injuries may well have aggravated underlying degenerative changes but said that it was the frank injuries that produced the physical effects, namely symptoms, that then required treatment.
I certainly accept his submission that pain as a symptom is not necessarily evidence of an injury within the meaning of s 4 of the 1987 Act.
However, that section contemplates injuries either frank or by way of an aggravation of an underlying disease condition.
In this particular case, I am satisfied that the applicant’s injuries were sustained as a result of the heavy nature of his duties over almost 20 years including the three events accepted by the insurer.
Similar circumstances were considered by Deputy President Roche in Department of Ageing, Disability and Home Care v Findlay [2011] NSWWCCPD 65. In that case, there were two separate deemed dates of injury which were held to be capable of aggregation for the purposes of s 66 since they arose out of the same injury, namely heavy work over a period of time.
As he said:
“55. While the injury to Ms Findlay’s cervical spine may well be the same as the injury to her lumbar spine, I prefer to base my decision on the fact that the injuries (whether or not they resulted in the same pathology) have resulted from the same injurious incident, namely, the heavy repetitive duties Ms Findlay performed with the Department since 1997.
56.The Commission determines whether a worker has received ‘an injury’ by applying s 4, not s 15 or s 16…essentially the injuries are those provided for in section 4…

58. Ms Findlay… developed a slow deterioration of problems in her back and neck in performing her work tasks over time, that the aggravation injury to her cervical spine and lumbar spine has resulted from the ‘same inciden’ under s 322(3) of the 1998 Act, and any impairments resulting from that incident should be assessed together.”

SUMMARY

For these reasons, I find that the applicant sustained injuries to both upper extremities (shoulders) and the cervical spine as a result of the nature and conditions of his employment with the respondent from about 2000 to October 2019 (including events on 25 July 2014, 10 February 2016 and 22 September 2017) the deemed date of injury being 3 June 2019.
The applicant’s employment was the main contributing factor to his injuries.

[2021] NSWPIC 250

16 July 2021