Attempts to add an additional body part in WPI claims

Pulis v M & S Boileau Pty Ltd ATF Boileau Family Trust [2023] NSWPIC 608

The Applicant was employed by the Respondent as a Farm Hand and Excavator Operator. It had been accepted by the Respondent that the Applicant sustained an injury to the cervical spine and suffered hearing loss as a result of being struck on the right side of his head on 12 May 2020.

The Applicant went on to claim lump sum compensation pursuant to section 66 of Workers Compensation Act 1987 (‘the 1987 Act’) for hearing loss and injury to the cervical spine, as well as for injury to the right shoulder.

Issues in dispute

The issues in dispute were whether the Applicant had also sustained an injury to the right shoulder on 12 May 2020 pursuant to section 4 of the 1987 Act; whether his employment was a substantial contributing factor to any injury to his right shoulder pursuant to section 9A of the 1987 Act; and the extent of permanent impairment.

Submissions and decision

The Applicant submitted that that there was no doubt he had complained of pain and symptoms in the right shoulder. However, he conceded that in order to find in his favour on causation for the right shoulder, the Member would need to be persuaded by the opinion of the Applicant’s IME, Dr Patrick, as the other evidence in general terms agreed that these symptoms in the right shoulder were referred symptoms from the cervical spine.

The Respondent submitted that the Applicant’s IME, Dr Patrick, did not diagnose a separate right shoulder injury, he merely observed an impairment and assessed it. The Respondent further submitted that the Member would not be satisfied that an injury had been sustained to the right shoulder, having regard to the many references of the right shoulder as being referred pain from the cervical spine in the treating medical evidence, in contrast to Dr Patrick’s unclear and inconsistent opinion. The Respondent submitted that the Member would prefer the opinion of the Respondent’s IME, Dr Granot, as set out in his first report, that there was no clear mechanism to explain the Respondent’s right upper other than median and ulnar nerve compression and carpal tunnel syndrome or possible cervical radiculopathy.

Workers Compensation Division Head, Glen Capel, noted that the Applicant bears the onus of establishing that he sustained an injury, and in order to discharge that onus, the Division Head must feel an actual persuasion of the existence of that fact pursuant to Department of Education & Training v Ireland [2008] NSWWCCPD 134 at [89]. The Member was not satisfied on the evidence that the Applicant suffered an injury to the right shoulder. He found it relevant that none of the Applicant’s treating doctors diagnosed a separate injury to the right shoulder. Although there were reports of symptoms in the Applicant’s right shoulder, he noted that Counsel for the Applicant conceded that the description of those complaints was consistent with referred symptoms. He also took into consideration that the Applicant’s IME, Dr Patrick, assessed permanent impairment for the right shoulder without providing a diagnosis and did not explain how he had come to his conclusion. In his view, Dr Patrick had not provided a “fair climate” for his opinion.

He therefore made an Award in favour of the Respondent in respect of the allegation of an injury to the right shoulder on 12 May 2020. The matter was remitted to the President for referral to two Medical Assessors for assessment of whole person impairment of the cervical spine and loss of hearing.

Implications

This case provides an example of the factors to be considered when a worker brings a claim for lump sum compensation for additional body parts not accepted by the insurer prior to the lump sum claim being made.

In this case, it was important that the Applicant’s IME had not provided a diagnosis for the right shoulder. It was also of significance that the contemporaneous medical evidence did not support that the Applicant had previously reported any separate injury to the right shoulder. In such situations, an Applicant’s attempt to add an additional body part to their claim for whole person impairment should be considered carefully by the insurer and investigated by way of expert medico-legal opinion.

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