Bridging the Gap to Establish a Consequential Condition

McMinimee v State of New South Wales (South Western Sydney Local Health District) [2023] NSWPICPD 18 – President Judge Phillips – 14/04/2023

The Applicant sustained an injury to her right shoulder and elbow on 7 March 2011 when she slipped and fell on stairs while attending a patient’s home. She was off work for about two months and then resumed light duties which involved office work.

While she was performing office duties on 10 August 2011, the Applicant sustained an injury to her left shoulder and neck after she pulled out a compactor in order to retrieve a file. Liability for the injuries was accepted however it was disputed that the impairments from each injury could be aggregated.

The Applicant commenced proceedings in the Personal Injury Commission claiming section 66 lump sum compensation with respect to her right upper extremity, left upper extremity, cervical spine, and scarring. The Respondent did not dispute any injury alleged by the Applicant and the only issue was whether the injuries could be aggregated.

Section 322 of the Workplace Injury Management and Workers Compensation Act 1998 provides:

322 Assessment of impairment

(1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.

(2) Impairments that result from the same injury are to be assessed together to assess the degree of permanent impairment of the injured worker.

(3) 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.

…”

Issues for Determination

The only issue for determination was whether the injuries to the right upper extremity, left upper extremity, cervical spine, and scarring could be aggregated pursuant to section 322 of the 1998 Act.

Decision

At first instance, the matter was heard before Member McDonald who found that while the Applicant injured her left arm on 10 August 2011 as alleged, the evidence did not support that it was a consequential condition. The Member did not accept the Applicant’s contention that her left shoulder injury occurred as a result of being unable to use her right shoulder as opined by the Plaintiff’s qualified expert, Dr Drew Dixon. A Certificate of Determination was issued shortly after on 12 April 2022 and the Applicant appealed the decision.

Appeal

On Appeal, President Judge Phillips rejected the Applicant’s 11 grounds and dismissed the Appeal. He stated it was apparent that, when reading the decision as a whole, the Appellant did not persuade the Member of the existence on the probabilities of the relevant fact(s) to establish the claim. This is not a finding against the evidence or one that was based on no or insufficient evidence as alleged. President Judge Phillips stated at [126]:

“It is not disputed that the appellant was working in a different role in August 2011 due to her earlier injury. It is not disputed that she suffered an injury to her left arm in August 2011. What needed to be proven in terms of this dispute was that the latter injury was consequential to, or resulted from, the earlier injury. More evidence was required to bridge the gap between the change in roles and injury suffered in August 2011 to the earlier incident.”

President Judge Phillips considered that the Appellant failed at first instance because her evidence was insufficient to discharge the burden of proof which at all times resided with her. This was the essence of the Member’s decision and on appeal, the President was of the view that these findings were not disturbed and the decision must stand.

Implications

This decision highlights that the burden of proof of establishing their claim rests squarely upon the Applicant. It is necessary for an Applicant to provide sufficient evidence to demonstrate that a consequential condition was sustained as a result of an accepted primary injury. In this case, the evidence was lacking / insufficient and the Applicant was unable to aggregate the impairments from each injury pursuant to section 322 of the 1998 Act.

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