Wall v Woolstar Pty Limited
[2022] NSWPIC 622
•8 November 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Wall v Woolstar Pty Limited [2022] NSWPIC 622 |
| APPLICANT: | Tracey Wall |
| RESPONDENT: | Woolstar Pty Limited |
| Member: | Paul Sweeney |
| DATE OF DECISION: | 8 November 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim by worker for permanent impairment compensation; issues as to date of injury and whether injuries could be assessed together either because they resulted from the “same injury” or were caused by the “same incident”; section 322 of the Workplace Injury Management and Workers Compensation Act 1998; Ozcan v Macarthur Disability Services Ltd and Warwar v Speedy Couriers considered; Held – claim remitted for medical assessment. |
| determinations made: | 1. Amend the Application to Resolve a Dispute herein by deleting reference to injury to the cervical spine whenever it appears. 2. Find that the applicant suffered injury to her low back on 2 December 2010 which was aggravated by the nature of her work between that date and July 2014 and that she suffered injury to her right shoulder by reason of the nature of her employment between 3. Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment, if any, as a result of the following injuries: (a) An injury to the lumbar spine on 2 December 2010 and the nature of applicant’s work for the respondent between 2 December 2010 and July 2014. (b) Could the MA also certify WPI of lumbar spine, if any, resulting solely from the nature of the applicants work after the injury of 2 December 2010 and up to her cessation of work in July 2014. (c) An injury to the right shoulder caused by the nature of the applicant’s work between 2 December 2010 and July 2014. 4. Medical Assessor to have access to the Application to Resolve a Dispute, the Reply and the documents attached to each and a copy of these reasons. 5. Liberty to the parties to apply for the purpose of addressing the question of whether the applicant’s lumbar spine and right shoulder can be assessed together in accordance with |
STATEMENT OF REASONS
BACKGROUND
Tracey Wall (the applicant) was employed as a picker/packer/store person by Woolstar Pty Limited (the respondent) between 2007 and January 2015. During the course of her employment, she reported injuries to her right ankle/foot, low back, and right shoulder. From January 2011, the applicant experienced back pain and, subsequently, pain in her right leg for which she came to a discectomy under Dr Ferch, a neurosurgeon, in December 2013.
The applicant continued to be troubled by back pain following surgery. She was unable to return to full-time work and has not worked since January 2015.
PROCEDURE BEFORE THE COMMISSION
By these proceedings, the applicant claims permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act). By her Application to Resolve a Dispute (the Application) the applicant claimed permanent impairment compensation in respect of her lumbar spine, cervical spine, and right upper extremity (shoulder). She alleged that each of these injuries were caused by an incident on 2 December 2010 when her foot was trapped by a pallet which was being moved by a forklift.
The respondent denied that the applicant sustained an injury to her neck in the course of her employment. While it accepted that the applicant sustained an injury to her foot in 2010, it did not accept that the injuries to the applicant’s back and right shoulder resulted from the same incident.
When the matter came on for conciliation and arbitration on 24 August 2022, Ms Grotte, of counsel, represented the applicant and Ms Warren, of counsel, represented the respondent. The conciliation conference was conducted audio-visually.
I was informed by counsel that the parties were unable to resolve the issues in dispute. 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 more than sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
During the conciliation conference the applicant discontinued the claim for permanent impairment as a result of an alleged injury to the cervical spine. She also sought leave to amend the allegation of injury in the Application so as to read:
“(a) Injury to the lumbar spine and right foot on 2 December 2010 when the applicant was crushed between two pallets and a consequential condition in the right shoulder as a result of having to adopt awkward postures due to the injury to the lumbar spine while having to carry out repetitive heavy lifting while repetitively reaching forward; or
(b) In the alternative, injury to the lumbar spine on 2 December 2010 and consequential condition in the lumbar spine as a result of an antalgic gait caused by the injury to the right foot/ankle and a consequential condition in the right shoulder as a result of having to adopt awkward postures due to the injury to the lumbar spine while having to carry out heavy repetitive lifting while repetitively reaching forward; or
(c) Injury to the lumbar spine on 2 December 2010 and injury to the right upper extremity (right shoulder) caused by the nature and conditions of employment from 2 December 2010 to in or about July 2014.”
The respondent did not object to the amendment to the pleadings. However, following the amendment, counsel requested that they have the opportunity to provide written submissions in respect of the issues in dispute. Those submissions have now been received by the Commission.
By its submissions, the respondent identified the issues in dispute thus:
“There is a dispute between the parties that arises out of the clarification of the date(s) and mechanism of injury being claimed and therefore the resulting compensation being claimed.
The dispute before the Commission relates to firstly, dealing with the injury or injuries sustained by the applicant in the course of her employment on 2 December 2010 that includes whether the applicant has sustained a frank injury with consequential conditions or frank injuries to various body parts with consequential conditions to other body parts on that one date. There are also alternative claims bringing in components of nature and conditions type claims.
The respondent respectfully submits that the determination of a mechanism of injury, and which body parts were injured when and how, is relevant in order for the determination as to whether the injuries fit within ‘same injury’ or ‘same incident’ within the meaning of s 322 of the 1998 Act.
The respondent respectfully submits that the impairments to the right foot, lumbar spine and right upper extremity (right shoulder) do not arise out of the ‘same injury’ or ‘same incident’ and therefore permanent impairment arising out of the different body parts cannot be aggregated.
The respondent concedes that the applicant suffered an injury to the right foot and lumbar spine during the frank incident on 2 December 2010. That is an accepted injury for the date and mechanism of injury. The respondent disputes that the applicant has sustained a consequential condition to the right shoulder as a result of the December 2010 injury.
The respondent concedes that there was an accepted injury to the right shoulder with a date of injury of 16 January 2013.
The respondent disputes that the applicant has sustained injuries to the lumbar spine and the right shoulder in the ‘same incident’ in order to enliven the aggregation under s 322 of the 1998 Act.”
EVIDENCE
The documents before the Commission are:
(a) the Application and the documents attached, and
(b) the Reply and the documents attached.
There was no objection to the evidence referred to above and no application to adduce further written or oral evidence.
SUBMISSIONS
The submissions of the parties are in writing and I do not propose to reiterate each of the arguments of counsel in these short reasons. I will, however, refer to the main thrust of counsel’s arguments in resolving the issues in dispute.
It is first necessary to briefly review the evidence of the applicant and the evidence of the primary medico-legal witnesses on each side of the record, Dr Guirgis and Dr Burns in the applicant’s case, and Dr Robertson and Dr Burke in the respondent’s case. What follows is not intended to be a comprehensive survey of the evidence of each of those witnesses. Rather, I set out the salient parts of that evidence so that the parties can understand the way in which the Commission has resolved their dispute.
The applicant
The applicant’s evidence is contained in written statements of 22 April 2021 and
6 June 2022. By the first of these statements, the applicant recounts that she commenced work for the respondent at Woolworths Wyong Regional Centre in 2007 picking stock items from shelves and racks in a large warehouse. She was required to lift these parts on to motorised trolleys and then load them on to pallets for shipment throughout New South Wales.The applicant then describes the injury of 10 December 2010[1]. She states that she was standing in between pallets when another worker who was driving a loader “slammed the pallets together”. She continues:
“I tried to jump out of the way, but my foot became wedged between the pallets. I immediately tried to free my foot by trying to push the pallets but they were way too heavy for me to move.”
[1] It was an agreed fact that the correct date of injury was 2 December 2010.
Following the injury, the applicant was taken to hospital by her team leader. After undergoing X-rays, she was told that she had sustained soft tissue damage and was given two days off work. She says:
“Upon returning to work 2 days later I was unable to put my work boots on properly due to swelling I still had in my foot. I went to work without doing up my laces and it was still very pain [sic].”
The applicant recounts that she performed light duties for a week and then took two weeks annual leave. On her return to work she was required to lift weights weighing up to 20kg. She says:
“This is where I noticed my back started hurting pretty much straight away. I put up with it and continued picking but it got to the point I was in tears and I went to central to report it.”
The applicant saw her general practitioner, Dr Ghaly of Kanwal, and underwent an MRI scan. She returned to work on part-time restricted duties. She says that:
“During the course of 4 years I was put on numerous hours and weight limits. I was also signed off work a number of times due to my injury being aggravated with picking duties.”
The applicant says that she hurt her right shoulder in 2012 “while picking and trying to limit as much pressure on my back as possible”. She may have seen Dr Lim, another general practitioner, in respect of this injury.
The applicant states that while on light duties she performed data entry stocktaking which involved walking the factory floor counting stock or receiving goods. She ceased work in mid-2013 and underwent decompression surgery at L5/S1, which was performed by Dr Ferch, in December 2013.
In mid-January 2014, the applicant returned to work performing data entry or “counting” duties. While she returned to the picking work again in July 2014, she “could not handle it and was signed off work with a zero capacity to pick”. The applicant says that she was terminated from her employment on 17 January 2014 as she was certified unfit for work and it was unlikely she would “return to the duties I was employed to do”.
By her supplementary statement dated 6 June 2022, the applicant elaborates on the circumstances in which she developed low back pain. She says that following the injury of 2 December 2010, she returned to work even though she was in pain in her right ankle. She was unable to place weight on the right foot. She states she was not “properly balanced when undertaking the ‘light duties’”.
In these circumstances she suffered an increase in pain in her back after wrapping plastic around pallets. She states that:
“The pain had developed from the problems I had experienced after suffering the foot injury in 2010.”
Then on 18 January 2011, the applicant sustained a further injury to her back when she was struck by a BT machine. She states that she experienced discomfort in the same area of the back as previously.
When the applicant returned to picking duties, she states that she was “continually experiencing pain in the back”. On 22 November 2011, when picking boxes of motor oil, she felt a sharp pain in her lower back in the same area that she previously experienced it. She reported the injury and was placed on light duties.
The applicant recounts that the light duties could require her to lift weighty items some of which weighed 20 kg. She continues:
“Due to my back injury, I was favouring my right arm when lifting these items. I noticed that I was experiencing more pain and restriction with my right shoulder due to all of the repetitive lifting.”
The applicant reported the injury to her right shoulder in January 2013.
Dr Medhat Guirgis
Dr Guirgis, an orthopaedic surgeon, initially saw the applicant on 14 November 2018 and provided a report of that date to her solicitors. He recorded a history of the incident of
2 December 2010 consistent with the applicant’s evidence. He recorded that after her return from Christmas holidays “and starting her normal duties of picking” she experienced the gradual onset of back pain which steadily worsened and developed into right sciatica.Dr Guirgis expressed the opinion that the applicant suffered an L5-S1 intervertebral disc lesion in the injury of 2 December 2020. He thought that she had continuing signs of a right L5 and S1 radiculopathy. He thought that she was only fit for sedentary work where she would be allowed to “alter her posture at will”. He assessed 16% whole person impairment (WPI) as a result of the condition of the applicant’s low back. He assessed her as DRE lumbar category III and added 2% for the effects of her injury on her activities of daily living and 1% for scarring.
Dr Guirgis saw the applicant again on 26 July 2021. On this occasion, he recorded a history of the applicant performing work that was “demanding on her right shoulder” between
June 2007 and 17 January 2015. This report contains a detailed description of the nature and speed of such work. He recorded the following:“In order to reach the ‘pick rate’ established by the employer, a worker would have had to manually lift and lower up to 20 tons of cartons per 8-hour shift. Much of this was done without feet being level on the ground due to the need to put one foot on the pallet to reach the far side. Additionally, this forced many lifts to be performed with her back bent (not straight), and the head looking down (not towards the horizon).”
Dr Guirgis expressed the opinion that this work would have been injurious to the applicant’s low back. He also states that:
“It was clear that her duties exposed her right shoulder to excessive loading, while taking awkward postures including repetitive reaching and over-reaching activities.”
On examination, Dr Guirgis found restriction of movement in the applicant’s right shoulder and cervical spine. He assessed 10% WPI of the right upper extremity (shoulder) and 5% of the cervical spine.
By a further report, which is dated 26 July 2021, but refers to a letter from the applicant’s solicitors dated 15 February 2022, Dr Guirgis considers the incident report related to the onset of the applicant’s right shoulder pain on 14 February 2013 and reports from Dr Perko and Dr Lim dated 8 August 2013 and 26 September 2013 respectively. He states:
“With these documentations in mind, it is reasonable to consider that on the balance of probabilities Tracey has sustained a problem in her neck and right shoulder as being “consequential injury” (reported on 14 February 2013), to the lumbar spine injury on 10 December 2010, in her trials to nurse and brace her painful lower back compensating through over hyper-using her upper body including her neck and shoulders. Taking this in my consideration as her lumbar spine injury, and her consequential right shoulder & cervical spine injury to be caused through the same injury, one would modify her impairment assessment to be as follows”.
Dr Guirgis then made an assessment of WPI resulting from the applicant’s lumbar spine, cervical spine and right shoulder of 30%.
Dr Mark Burns
Dr Mark Burns, an occupational physician, provided a report to the applicant’s solicitors dated 29 May 2021. He diagnosed the applicant with lumbar spondylosis and radiculopathy. He found some tenderness in both shoulders and a mild restriction of the right shoulder but no other signs of shoulder pathology. He expressed the opinion that the lifting of weights of between several and 17 kg over the years materially contributed to the injury to her lumbar spine.
In respect of the injury of 2010, he noted that the applicant reported that when she returned to work she had a slight limp favouring the left leg. He continued:
“It was soon after this that she developed pain and discomfort in her back. It is well-known that an antalgic gait caused by pain in one leg or the other can cause injuries in the lumbar spine.”
He thought that it may be possible for the applicant to perform sedentary work. He thought she should be referred to a pain management specialist.
Dr Robinson
Dr Robinson, an orthopaedic surgeon, saw the applicant at the request of the respondent’s solicitors on 23 November 2020 and provided a report of 6 December 2020. He recorded a consistent history of the injury of December 2010. He diagnosed the applicant as suffering from a soft tissue injury to her right foot and a “secondary spinal condition requiring laminectomy”. He continued:
“The back pain developed in January 2011 which she stated was the result of standing for 60 minutes and lifting heavy objects. This would thus appear to be a separate incident but may indeed have been related to the incident in December 2010 because of the extra stress she had in twisting etc when the injury between the pallets occurred.”
In answer to a question posed by the respondent’s solicitor whether the applicant’s back pain resulted from altered gait following her right ankle injury or a subsequent injury on
30 November 2011 or both, he stated:“I believe that it was the result perhaps of both but also more the lifting as it would be difficult to not have these symptoms relating to an injury almost 12 months prior to the development of her back pain, that is, not to have the symptoms prior to lifting at work in November 2011.”
Dr Robinson saw the applicant again on 20 April 2022. On examination, he found a reasonably equivalent range of movement in her shoulders. He said that there was no evidence of any impingement on clinical examination and no evidence of any internal labral pathology. He also found satisfactory movement of the neck. In respect of the connection between the applicant’s right shoulder symptoms and the injury to her lumbar spine, he said this:
“Her right shoulder condition could not be consequential to the lumbar spine injury as there is no significant natural history of such developing with back pain. It is interesting that in her earlier statement of 22 April 2021 she states that her shoulder became painful when she was undertaking an MRI examination.”
While he thought that the applicant would return to work, he could not suggest “any suitable duties that she could undertake as she would need retraining”. He assessed 10% WPI which:
“relates to the workplace onset of symptoms which has been accepted and was not related to a specific injury as such.”
At the conclusion of his report he referred to the report of Dr Guirgis of 26 July 2021. He said that he did not agree with Dr Guirgis’ characterisation of the applicant’s cervical spine and right shoulder conditions as “consequential” resulting from her low back injury.
Dr Nicholas Burke
Dr Burke, an occupational physician, saw the applicant on 6 October 2021 at the request of the respondent’s solicitors. He diagnosed the applicant’s condition as follows:
“Ms Wall would appear to have suffered a soft tissue injury of the right foot in the incident in question. It is possible that she suffered a soft tissue injury of the lumbar spine. However, based on the symptoms presented today there does appear to have been a quite significant delay between the report of any symptoms in the lower back, and hence I would recommend that the contemporaneous notes of Dr Ghaly and her initial treating physiotherapy be scanned to clarify when and where her back symptoms developed.”
He expressed the opinion that the applicant had the capacity to return to work 30 hours a week in work that did not involve significant physical activity. He concluded by expressing “some doubt as to whether the original injury resulted in any significant back injury” although he also observed that the applicant had a CT scan of the lumbar spine “around a few months after the original injury”.
DISCUSSION AND FINDINGS
As the present claim is solely for permanent impairment compensation, it is only necessary for the Commission to determine the issue of injury: see Jaffarie v. Quality Castings Pty Ltd[2] (Jaffarie). Questions relating to whether the applicant’s impairment is to be reduced for prior or supervening injuries and the quantum of the impairment are solely within the prerogative of a Medical Assessor. The determination concerns the injuries pleaded in the Application. It is convenient to deal with the issues of injury in accordance with the amended allegations formulated by the applicant at the conciliation conference and set out above.
[2] [2014] NSWWCCPD 79 (10 March 2015).
Injury to the lumbar spine and right foot on 2 December 2010
By its written submissions, the respondent accepted that the applicant suffered injury to her right foot and lumbar spine “during the frank incident on 2 December 2010”. That concession is consistent with the weight of the medical evidence in the matter including the opinions of Dr Guirgis, Dr Ferch, and Dr Papantoniou, both of whom have treated the applicant, and probably Dr Robinson, although there is a degree of ambivalence in his opinion on this issue.
Medical conditions of the lumbar spine as a consequence of the right foot/ankle injury and medical condition of the right shoulder as a result of awkward posture while carrying out heavy ad repetitive work
As the respondent has conceded that the applicant suffered injury to her back in the incident of 2 December 2010, it is unnecessary to consider whether it was also caused by antalgic gait consequential on the 2010 injury. While there is a good deal of evidence to support this proposition, including the opinion of Dr Burns, if the applicant suffered an L5/S1 disc injury in the incident of 2 December 2010, the pain that she was having in her low back following the incident was more probably than not a manifestation of her injury. In the circumstances it is doubtful that antalgic gait materially contributed to the disc lesion in her lumbar spine.
The more contentious issue is the relationship, if any, between the applicant’s back injury and the medical condition of her right shoulder. It is quite clear that the applicant thought there was some association at the time. The report of injury in respect of the right shoulder injury contains the following:
“Tracey reported that her shoulder was sore following having a claim for her back injury – Tracey advised that she believes that this is over-compensating her upper body to protect her lower back injury – there is no specific incident and a gradual onset of pan (sic – pain) when performing her duties – Tracey advised that she also picks mainly from one side of aisles and she may need to look at this.”
Following the injury to her right shoulder, the applicant was treated by a general practitioner, Dr Lim, who referred her to Dr Perko the orthopaedic surgeon. Dr Perko thought that the applicant had bursitis and intra-tendinous pathology. When he saw her on
26 September 2013, she had a good range of movement of the shoulder and “a less obvious pain arc”.There is little doubt that the applicant experienced symptoms in her right shoulder as a consequence of the arduous physical work in which she was engaged at the time. While the respondent argued that it was restricted to a single date of injury, it is more probable that it related to the arduous nature of the applicant’s work, which is vividly described in the medical evidence, over a longer period of time.
The only medical support for a causal connection between the condition of the applicant’s right shoulder and her back injury is that found in the report of Dr Guirgis of 26 July 2021. He reached that conclusion after considering the applicant’s report of injury form and the medical reports of Dr Perko. He concluded on the basis of that material that by reason of the applicant’s attempts to:
“nurse and brace her painful lower back compensation through – overusing her upper body including her shoulders.”
Dr Guirgis, of course, expressed the opinion that the symptoms he elicited in the applicant’s cervical spine were produced by the same causal mechanism.
While Ms Grotte submitted that this was compelling evidence of a causal relationship,
Ms Warren submitted that Dr Guirgis had not recorded a history of over-compensating with her right arm as a result of a lower back injury when he initially took a history. The respondent relied on the opinion of Dr Robinson, who, of course, thought that it was not the natural history for a back injury to lead to symptoms in the upper limbs.I find it difficult to understand the mechanism by which impaired or painful movement of the applicant’s lumbar spine caused injury to her right shoulder. There is no lucid explanation in the medical evidence of the mechanism by which this occurs. In the second of his reports
Dr Guirgis was able to explain the onset of symptoms in the applicant’s right shoulder solely by reference to the arduous and repetitious work that she was required to perform for the respondent. That is an entirely logical and understandable conclusion.As it is likely that the applicant would have experienced right shoulder pain by reason of the nature of her work, the theory that protecting her back somehow also contributed to the condition in a material way requires explanation. In the circumstances of this case, the concept of overcompensation as a causal factor is not meaningful in the absence of further explication. While the opinion of Dr Robinson is quite terse, and may contain an inaccurate history, I prefer it to the opinion of Dr Guirgis on this issue. Accordingly, I find that the applicant has not established that she suffered a consequential condition of her right shoulder as a result of the injury to her back in 2010.
Whether the applicant suffered injury to her lumbar spine and right upper extremity (shoulder) as a result of the nature of the employment between 2 December 2010 to July 2014
It is evident from my reasoning above that the applicant suffered injury to her right shoulder in the period leading up to the report of injury on 16 January 2013. While Dr Guirgis cannot always be relied upon in determining causation issues, the evidence of the nature of the work which the applicant was performing at that time is compelling. Moreover his opinion as to the cause of the injury is not directly contradicted by other medical evidence.
As I indicated above, when Dr Perko saw the applicant on 26 September 2013 she had significantly improved movement of the right shoulder. Subsequently, both Drs Burns and Robinson have recorded reasonably free movement of the shoulders on their respective examinations. Only Dr Guirgis has found an impairment of the right shoulder in recent times.
It is not entirely clear from the evidence whether the applicant’s work after 16 January 2013 contributed to the pathology in her shoulders. It is apparent that she either performed selected duties or was absent from work for periods up to the time when she was finally stood down, presumably, in July 2014.
In considering the back condition, Dr Burns said this:
“Repetitive activities involving the back especially with flexion rotation work have been well documented as causing disc injuries or degenerative change in the lumbar spine over time. The injuries have been listed as causing micro trauma, which gradually leads to disc injury and eventually disc prolapse of disc protrusion with or without radicular symptoms.”
There is little doubt that Dr Burns thought that the nature of the applicant’s work materially contributed to the injury to her lumbar spine. Once again, the evidence in respect of the nature of the applicant’s work is compelling. His opinion is not directly contradicted by
Dr Robinson. Accordingly, I find that the nature and conditions of the applicant’s work were a cause of both her disc lesion at L5/S1 and the more tractable condition of her right shoulder. In respect of her back, I find that the applicant’s work after 2010 caused an exacerbation or aggravation of the L5/S1 disc injury of 2 December 2010.The respondent suggested that the back injury should be attributed to several specific incidents when the applicant complained of increased backpain. But, in my opinion, these “incidents” are best explained as cumulative minor traumata over a long period rather than injury simpliciter.
Referral for medical assessment
There is no doubt that the injuries to the applicant’s back on 2 December 2010 and by reason of the nature of her employment after that date must be assessed together. That is because the latter injury resulted from the injury of 2 December 2010 in the sense of the second category described in State Government Insurance Commission v Oakley[3]: see also Ozcan v Macarthur Disability Services Ltd[4].
[3] (1990) 10 MVR 570 (Oakley).
[4] [2021] NSWCA 56 (12 April 2021).
The situation is different in respect of the injury to the right shoulder as I have found that it is not causally related to the back injury. There is, however, binding authority that injuries to different body parts caused by the nature and conditions of a worker’s employment may be assessed together in accordance with s 322 (3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act)[5]. That subsection is as follows:
“Impairments that result from more than one injury arising out of the same incident are to be assessed together to assess the degree of permanent impairment of the injured worker.”
[5] Department of Ageing, Disability and Home Care v Findlay [2011] NSWWCCPD 65 (11 November 2011).
It is therefore arguable that the injury to the back caused by the nature of her employment and the injury to the applicant’s right shoulder which was also caused by the nature of employment should be assessed together. However, Ms Warren argued that before such a finding could be made, it was necessary to carefully examine the employment activities which caused each injury. She referred to the decision of Principal Member Bamber in Ghilagabar v Kmart Australia Pty Ltd[6], where the following appears at [97]:
“It is not enough to argue the respective injuries all arose out of the work duties over many years. The requirement of the ‘same incident’ needs to have been properly addressed in the evidence.”
[6] [2022] NSW PIC 25.
I accept this argument. It is difficult to conclude, for example, that a worker who suffered injury to his arms by reason of repetitive work and industrial deafness by reason of loud noise could establish that these injuries resulted from the same incident, although they occurred at the same time and on the same premises.
However, in this case there is a close association between the activity which caused the aggravation of the applicants L5/S1 disc lesion and the activity which caused her right shoulder injury. That is so even though the applicant was performing selected duties when she experience shoulder pain. Both were caused by the repetitive lifting of weighty items from the storage areas to a motorised trolley, and, subsequently, transferring these items to pallets. Thus, there is evidence to support a finding that the two injuries arose out of the same incident.
If it was not for the decision of Roche DP in Warwar v Speedy Courier Australia) Pty Ltd[7] (Warwar), I would make a finding that the two injuries should be assessed together. In that case the worker suffered a back injury in a work accident on 22 February 2007. Subsequently, in 2008, he was involved in a compensable motor vehicle accident in which he suffered a minor aggravation of his back injury and a more significant injury to neck.
Roche DP held that the 2007 and 2008 back injuries should be assessed together as they were the “same injury” as that phrase is used in s 322(2) of the 1998 Act.[7] [2010] NSWWCCPD 92 (25 August 2010).
Roche DP also held the worker could not also have the back and neck assessed together pursuant to s 323 (3) on the basis that they arose out of the same incident namely the 2008 vehicle accident. He said this at [58]-[60]:
“58. As far as they relate to the neck injury, I do not accept the above submissions.
59. Mr Warwar injured his lower back on 22 February 2007. Though he again injured his lower back in the motor vehicle accident in 2008, the undisputed evidence is that he suffered only a one per cent impairment as a result of that further injury. Based on the complaint of symptoms and the radiological investigations, the low back injury (pathology) in the motor vehicle accident (aggravation of an L4/5 disc protrusion caused in the first incident) was the same as the low back injury caused by the 2007 incident. It is therefore appropriate to aggregate the one per cent impairment from the second back injury with the five per cent impairment from the first back injury. However, that does not reach the 10 per cent threshold in section 67.
60. Mr Warwar’s main injury in the motor vehicle accident was to his neck. There is no basis for treating the neck injury from the car accident as the “same injury” as the low back injury received in the lifting incident in 2007. The neck injury was a separate and distinct injury to a different part of the body involving separate and distinct pathology compared to the 2007 back injury. A neck injury is plainly not “the same” injury as a low back injury and the impairment from the neck injury in the motor vehicle accident cannot be added to the impairment from the back injury in the 2007 incident for the purpose of satisfying the section 67 threshold.”
The facts of the case are similar in many respects to the present. The applicant suffered a significant injury to her back in 2010. Subsequently, as a result of the nature of work she suffered a modest aggravation of her back injury and an injury to the right shoulder. I am bound by the ratio of the decision which has been followed on many occasions. Unfortunately, the ratio is not entirely straightforward.
In my Direction, I referred the parties to Warwar in the hope that they might address the issues raised by the decision. In the absence of submissions, I am reluctant to determine the issue. It may now be necessary to determine the issue in the context of the recent appellate cases on causation.
Warwar is, of course, also authority contrary to the argument put by the applicant at the arbitration hearing that an injury sustained in the course of performing selected duties work consequent upon an injury inexorably results from that earlier injury. That argument was not pursued in the applicant’s submissions.
As the matter has a long history, I propose to remit to the President for referral to a Medical Assessor to assess the following dictrete injuries:
(a) Whole person impairment of the lumbar spine as a result of injury on
2 December 2010 and the nature and conditions of the applicant’s employment from that date until July 2014.(b) Whole person impairment of the right shoulder as a result of the nature and conditions of the applicant’s employment between 2 December 2010 and July 2014.
If, on receipt of the MAC, there remains a dispute as to whether the back and right shoulder injuries were caused by the “same incident” in accordance with s 323 (3) that can be addressed by the parties after considering the relevant passages from Warwar.
There are two aspects of the case that I should briefly address. First, in keeping with the pleadings and the submissions of the parties, I have referred to the injuries to the applicant’s back and right shoulder as being caused by the nature and conditions of the applicant’s employment. It is a probable that both the aggravation of the applicants L5/S1 disc and the injury to her right shoulder caused by the nature of work are disease injuries. It was not suggested, and I doubt, that anything turns on the characterisation of the injuries in the circumstances of the case.
Secondly, Ms Grotte submitted that I should refer the injury to the applicant’s right ankle in 2010 to the Medical Assessor in accordance with the reasoning in Shankar v Ceva Logistics (Australia) Pty Ltd[8]. I decline in to make such a referral. There is no evidence that a claim for permanent impairment compensation for the right ankle has been made in accordance with the legislative scheme. Further, there is no medical dispute, as that term is defined in s 319 of the 1998 Act, to refer for assessment. It is the unanimous opinion of the doctors who have assessed the applicant on both sides of the record that she does not have permanent impairment of the right lower extremity.
[8] [2021] NSWPICPD 18 (16 June 2021).
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