Geary v UPS Pty Ltd [2021] NSWPIC 111 (10 May 2021)

Last Updated: 20 May 2021

STATEMENT OF REASONS

BACKGROUND

1. On 10 September 2019, Peter Geary (the applicant) commenced proceedings against UPS Pty Ltd (the respondent) in the Workers Compensation Commission of NSW (the 2019 proceedings) claiming lump sum compensation reflecting a 37% whole person impairment (WPI), on the basis of injuries to his right and left shoulders and his neck, as well as s 60 expenses, under the Workers Compensation Act 1987 (the 1987 Act). The injury allegations in the 2019 proceedings read:

“... Type of Injury: Personal... Date of injury: 1/02/2018 ... Injury description... physical injuries to ... right shoulder .... As a result of overcompensation... consequential injuries to...left shoulder and neck...” (emphasis added).

2. On 29 November 2019, a Certificate of Determination was issued with the consent of the parties, with respect to the 2019 proceedings (the 2019 COD), determining the following:

“(1) The Applicant discontinues the claim pursuant to s66 ...

1. Amend ‘Injury Details – 1/12/2018’ [sic - read as ‘1/02/2018’] by adding after the words ‘right shoulder’ the words ‘cervical spine’...

(3) Award in favour of the respondent in respect of the allegation of injury and/or consequential injury to the cervical spine...

(4) The Respondent ...pay ... medical and related expenses ... incidental to the surgery to the left shoulder ...”

3. On 28 September 2020, the applicant’s solicitor wrote to the respondent attaching a report from Dr Peter Endrey-Walder, dated 17 September 2020, and making a claim under s 66 of the 1987 Act for a 46% WPI based on injuries to both of the applicant’s shoulders and his cervical spine. This letter also requested the respondent to “revoke your denial in relation to our client’s cervical spine injury”.

4. On 5 January 2021, the respondent wrote to the applicant making an offer of 13% WPI with respect to the applicant’s right shoulder only – noting a date of injury of 1 February 2018 (“the incident” or “the incident date”). This was on the basis of a forensic report from
   
   Dr Bosanqet, orthopaedic surgeon, dated 12 November 2020.

5. On 6 January 2021, the applicant’s solicitor wrote to the respondent asking to be provided with all documents sent to Dr Bosanqet and information all as to why a WPI assessment was only provided on the right shoulder and not the left shoulder or cervical spine.

6. On 14 January 2021, the applicant caused an Application to Resolve a Dispute (the ARD) to be registered. The ARD claimed lump sum compensation from the respondent under s 66 of the 1987 act in respect of 46% WPI. The ARD alleged:

“... Type of Injury: Disease... deemed date... 1/02/2018... Injury description... as a result of the nature and conditions of his employment combined with an incident at work on 1 February 2018, the applicant sustained physical injuries to his right shoulder. As a result of overuse and over-compensation... sustained consequential injuries to his left shoulder and neck... also...scarring as a result of the surgery...” (emphasis added).



Matters not previously notified

7. On 4 February 2021, the respondent lodged a Reply to the ARD. In relation to the form question “Matters in Dispute”, the respondent noted that it sought leave to dispute the claim for permanent impairment of the cervical spine on grounds of estoppel and/or res judicata based on the 2019 COD. The respondent also noted its acceptance of the alleged primary injury to the applicant’s right shoulder on the incident date, and consequential injury to his left shoulder, but disputed “this is a nature and conditions claim ... the injury to the right shoulder was a frank injury on 01/02/2018”. The respondent consented to the applicant’s case being referred for assessment of the applicant’s right upper extremity (shoulder) resulting from the incident and for consequential left upper extremity (shoulder) condition.

8. Later on 4 February 2021, the applicant’s solicitor wrote to the respondent’s solicitor noting the terms of the reply and submitted that:

“the prior proceedings... were based on a “personal” injury with a pleaded date 1/2/2018 ... current proceedings are based on a “disease” injury with nature and conditions ... pleaded in conjunction with the 1/2/2018 date ... disagree ... there are grounds ... to dispute our claim for permanent impairment of the cervical spine on the grounds of estoppel ...or Res Judicata ...(Dr Endrey-Walder’s report) ...makes clear the relationship between nature and conditions of ...employment and his injuries ... client assessed by Dr John Bosanqet and ... issued a letter dated 5 January 2020 offering 13% WPI for the right shoulder only ... not made clear why the left shoulder nor the neck were not included in the assessment ... s78 ... notice was not issued in relation to the left shoulder nor the neck, nor was ...notice issued disputing nature and conditions ... have also requested ... entire brief ... sent to Dr... Bosanqet ... ...”.

9. On 9 February 2021, a proposed amended ARD (AARD) was lodged to relevantly allege “Disease” type injuries and injurious events, deemed to have happened on 1 February 2018; namely, “physical injuries” to the applicant’s

(a) Right shoulder as a result of the nature and conditions of employment from 2013 to 12 December 2018 (the period) “combined with an incident at work on 1 February 2018”.

(b) Left shoulder as a result of the nature and conditions of employment during the period, alternatively, consequential “injuries to his left shoulder” as a result of overuse and overcompensation of the left shoulder due to the right shoulder injuries and surgery.

(c) Neck as a result of the nature and conditions of his employment during the period.



ISSUES FOR DETERMINATION

10. The parties agree that the following issues remain in dispute:

(a) Whether the applicant should have leave to rely upon the AARD (The First Issue).

(b) Whether the respondent should have leave to dispute previously unnotified matters pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act - The Second Issue).

(c) Whether the applicant is estopped, by the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun), from making a claim on the basis of a disease injury for his cervical spine and left shoulder (the Third Issue).

(d) Whether the applicant is estopped by res judicata principles from making a claim on the basis of a disease injury to his cervical spine (The Fourth Issue).

(e) Whether the applicant has sustained a disease injury to his neck and/or left shoulder and/or right shoulder (The Fifth Issue).



PROCEDURE BEFORE THE COMMISSION

11. The parties attended a conciliation and arbitration on 24 February 2021. Mr J Beran of counsel, instructed by Mr I Kovic of Walker Legal, appeared for the applicant. The applicant was also in attendance. Mr D Adhikary of counsel, instructed by Mr J Vrettos solicitor, appeared for the respondent. The conciliation phase was unusually lengthy having regard to the involvement of various potentially complicated factual and legal issues. As such, both parties accepted that the appropriate course was to set a timetable for written submissions.

12. I am satisfied the parties understand the nature of the application and legal implications of any assertion made in the information supplied. I have used my best endeavours to bring the parties to a settlement and am satisfied they have exhausted their attempts to achieve that.

EVIDENCE

13. The following documents were in evidence before the Commission:

(a) ARD and AARD and attached documents;

(b) Application to Admit Late Documents by the applicant;

(c) Reply and attached documents;

(d) Application to Admit Late Documents by respondent.

Applicant’s Statement dated 13 January 2021

14. The applicant began working for the respondent, who conducted a pharmaceutical business, in 2013. He worked in the warehouse and the nature and conditions of his employment were:

“ very heavy and arduous... very repetitive and physically demanding... a lot of picking and packing... lifting and handling boxes of up to 30 kg and stacking them on pallets...work in the freezer... some forklift duties... boxes... to lift were large, awkward to manoeuvre and heavy... always short of staff so... always having to work harder...”

15. On 1 February 2018, the applicant was “at work performing my usual duties...in ... refrigerated section...loading pallets with 25 kg boxes manually... while... doing this work... developed severe pain in the right shoulder... The pain was excruciating and felt as if an elastic band snapped...”. He was regularly required to handle these boxes in the way that he did on 1 February 2018, and estimates he would stack and handle about 160 such boxes every shift. He felt “... the incident ... was the straw that broke the camel’s back, with the everyday work... prior to this being the major contributor to the ...right shoulder (problems)”.

16. The applicant reported the injury to his supervisor and was given ice to put on his right shoulder. Later that day he saw his local general practitioner, Dr Sakthivel, at the Merrylands family practice (the GP practice). On 2 February 2018 he underwent an MRI and x-ray of his right shoulder. He was then referred to Dr James Duckworth, orthopaedic surgeon who arranged for an injection into his right shoulder on 7 March 2017. This did not provide any relief for him. He was then referred to another orthopaedic surgeon, Dr Jonathan Herald.

17. The applicant started “trying to avoid using my right shoulder” due to the significant pain in that shoulder “ever since the incident...”. He said he started using his left shoulder more and more with everything such as showering, picking things up and carrying things. He also began to develop significant pain in his neck. He was then referred to a neurosurgeon,
    
    Dr Simon McKechnie who he first consulted on 28 February 2019.

18. An MRI was performed on the applicant’s left shoulder on 11 March 2019 and he was referred to Professor George Murrell, orthopaedic surgeon who eventually recommended a left reverse total shoulder replacement surgery (LSR) which occurred on 23 February 2020. This treatment was initially disputed, and lead to the 2019 proceedings and 2019 COD when the respondent agreed to pay for it.

19. The applicant also relies on a supplementary statement of 9 February 2021 where he states that he “would like to emphasise that the nature and conditions... impacted both on my shoulders and also my neck”. The applicant also added that he felt his neck condition became much more severe after the left shoulder surgery. He then states that “I had pain in the neck and headaches almost immediately following the incident...with the pain worsening over time... became much more severe ...following the left shoulder surgery...”

Dr Jonathon Herald, Orthopaedic Surgeon

20. The applicant was referred by the GP practice to Dr Herald for advice and treatment.
    
    Dr Herald reports on 27 March 2018 that the applicant gave him history of “doing some heavy lifting about two months ago on 01 February 2018... felt right shoulder pain... radiating down his biceps region...”. On 4 April 2018 he noted the applicant was continuing to have shoulder pain. At this time he noted that an MRI scan showed “chronic rotator cuff tearing and there may be an acute component to it but there has already been muscle atrophy and wasting”. On 5 September 2018 he noted the applicant had continuing pain and that a cortisone injection had not given much benefit. The RSR was then performed on 13 December 2018. The operation report noted the indication for the RSR was “right shoulder rotator cuff tear”.

21. Dr Herald reviewed the applicant post surgery on 20 December 2018, 24 January 2019 and 7 March 2019 when he thought the applicant was progressing reasonably well. On 30 January 2020, Dr Herald saw the applicant again who told the doctor that shortly after the 1 February 2018 right shoulder injury “he started getting overuse pain from his left shoulder...”. Otherwise, Dr Herald reported that the applicant’s right shoulder was doing well in terms of pain relief. Dr Herald’s assessment was right shoulder “AC joint arthritis... left shoulder cuff tear arthropathy”. On 13 February 2020, Dr Herald prepared a report on the LSR carried out that day.

22. On 18 June 2020, Dr Herald reported that the applicant was still getting some burning type pain in his biceps and anterior shoulder region. On examination, Dr Herald also noted “stiffness and pain in ...cervical spine ...he does not feel ...his cervical spine is related to ...shoulder pain... uncertain if the pain is coming from his neck as he has had ... cortisone injection to a pinched nerve ... or if ...still recovering from his shoulder ...”

Dr Simon McKechnie, neurosurgeon

23. The applicant was referred by the GP practice to Dr McKechnie for treatment. The first consultation was on 28 February 2019 when Dr McKechnie took a history of the “work-related injury lifting a heavy box on 1 February 2018... developed sudden sharp severe pain radiating from the right side of the neck across the shoulder and upper arm... diagnosed with a severe full thickness tear to the rotator cuff...”. Dr McKechnie noted the applicant’s complaints of headache, neck pain as well as right and left shoulder pain. He also noted a report of an MRI of the applicant’s cervical spine demonstrating mild left C4/5 foraminal stenosis with likely C5 nerve root impingement.

24. When Dr McKechnie reviewed the applicant on 25 March 2019, he had access to the films of the MRI scans of the applicant’s left shoulder and cervical spine. He expressed the view that the applicant’s symptoms were “likely to be due to a combination of left shoulder pathology and left C5 radiculopathy”. He referred the applicant for a diagnostic and therapeutic CT guided left C5 cortisone injection and recommended the applicant then return to Dr Herald.

25. Dr McKechnie again reviewed the applicant on 6 May 2019 and noted the applicant estimated a 40% improvement in the pain radiating across his left shoulder following the cortisone injection. He also thought this “confirmed... his symptoms are a combination of his full thickness supraspinatus tear and the left C4/5 cervical disc protrusion...”

Professor George Murrell, orthopaedic surgeon

26. Prof Murrell saw the applicant on 15 April 2019, referred by the GP practice for treatment. He noted that the applicant “presents with a left shoulder problem... happened on 01/02/2018... no initiating event”. He also noted that the applicant “has had long-standing pain in the left shoulder related to his work... got worse since the surgery on the right”. Prof Murrell discussed the applicant’s options in relation to treatment and recommended the LSR option.

27. Prof Murrell wrote to the respondent’s insurer (on 29 April 2019) and the applicant’s solicitor (on 18 September 2018). In summary, he opined that the applicant “presented with a left shoulder problem... happened on 1 February 2018... had a right total shoulder in December 2018... had long-standing pain in the left shoulder related to work... worse since the surgery on his right ”. Prof Murrell expressed the view that the applicant’s work was a substantial contributing factor “to the cuff tear arthropathy of his left shoulder...”

Dr Medhat Guirgis orthopaedic surgeon report on 26 June 2019

28. Dr Guirgis took a history from the applicant of the incident; involving stacking boxes on a pallet, when he “felt snapping pain in his right shoulder”. He also took a history that on a busy day at work, the applicant would similarly handle about 160 such boxes; and that the “situation in his right shoulder worsened steadily, eventuating in (the RSR)”. He also noted the applicant was trying to sleep on his back, and “... if he slept on the left side he would ...wake up in pain in his left shoulder” and that “... since his injury he developed consequential over -compensation effects” on the left shoulder; and that Prof Murrell had recommended the LSR.

29. Dr Guirgis went on to note that since the incident, the pain in the applicant’s right shoulder extended to involve the top of his right shoulder blade and adjoining area of his neck, and that this right sided neck pain and stiffness continue to slowly worsen – particularly highlighted when his right arm was in a sling for a long time post operatively.

30. After considering the history, radiological, and clinical examinations, Dr Guirgis diagnosed “an acute injury to the rotator cuff of the right shoulder ...the site of underlying chronic overuse pathology related to the nature and conditions of his employment...”.

31. Dr Guirgis also opined that the incident caused post-traumatic mechanical derangement of the cervical spine by way of a musculo-ligamentous strain involving the C4-5 intervertebral disc which “triggered & aggravated the effects of underlying asymptomatic age - appropriate degenerative changes”. He opined that employment was and remained a substantial contributing factor to the injuries described. Dr Guirgis stated that he did not know why the applicant “did not present with significant complaints of pain before the incident...”, and that he was surprised the pain had not “been wholly elucidated until now”. He apportioned 10% responsibility for the injury to the incident and 90% responsibility to the “nature of employment” with respect to both shoulders and the neck. He also conducted WPI assessments – finding 22% WPI with respect to the right upper extremity, 9% WPI for the left upper extremity, 6% WPI for the cervical spine and 2% WPI for scarring; resulting in an overall WPI of 37%. He again attributed 90% responsibility for each of these WPI’s to the nature and conditions of employment and 10% responsibility to the incident.

Dr Peter Enderey-Walder General and Trauma Surgeon, reports on 17 September 2020

32. Dr Enderey-Walder noted the applicant’s work with the respondent since 2013 was “quite physically demanding, picking/packing in the freezer of the warehouse, handling boxes weighing up to 30 kilograms ... being stacked on pallets ... some forklift duties”. He also took a history of the incident, noting the applicant developed severe right shoulder pain while loading pallets with 25 kilogram boxes and feeling in the right shoulder which felt like an elastic band snapping. He also noted this work was very similar to what the applicant would do regularly – handling and stacking up to 160 such boxes per shift.

33. Dr Enderey-Walder then noted the history of treatment, including from Drs Herald, McKechnie and Prof Murrell, including the RSR and LSR. After also conducting a clinical examination and considering the radiological investigations, he opined that the applicant had developed degenerative changes at the rotator cuff of both of his shoulders “as a consequence of the nature and conditions of his daily work ... initially significantly more problematic on the right side ...”. He also noted the incident as an “acute episode of snapping and pain at the right shoulder” which “ ... brought attention to the quite extensive and established rotator cuff pathology ...”. He opined that the applicant’s left shoulder was aggravated by overuse of the left arm since the incident, resulting in worsening left shoulder pain by early 2019.

34. Dr Enderey-Walder noted that the first mention he could see in the clinical notes regarding the applicant’s neck pain was a complaint to Dr Balasingham in November 2018 – although the applicant had told Dr Enderey-Walder that he did have neck pain at the time of the initial right shoulder injury. He then opined that the applicant had “an almost single level cervical spine pathology at C4/5 where disc prominence and reactive osteophytic changes had impacted on the neural exit foramen especially on the left side giving rise to intermittent symptoms of likely radiculopathy ...”, and that the nature and conditions of the applicant’s work and extra strain on the neck from the shoulder-related difficulties were “significant contributing factors to his current neck pain and the documented restriction in the range of movement at the neck”.

Dr John Bosanquet Orthopaedic Surgeon reports on 24 June 2019 and 12 November 2020

35. Dr Bosanquet examined and reported on the applicant in June 2019. He noted the medical documentation provided to him was from Drs Tang, Murrell, Balasingham, McKechnie and Herald. He recorded a history of the applicant, on 1 February 2018, lifting boxes weighing up to 23 kg, and as he was lifting a box onto the upper height from a conveyor belt, about 18 inches high, he was pushing the box into place and felt a sharp pain in the right shoulder and biceps region. He also noted that the applicant then developed pain in the left shoulder “that he was using in preference to the right”. After clinical examination and considering the radiological investigations, Dr Bosanquet opined that the applicant had:

“injured his right ... shoulder in the course of his work in the warehouse ... on 01/02/2018 ... aggravated a chronic rotator cuff tear with a cuff arthropathy ... similar changes in the left side with a massive rotator cuff tear and cuff arthropathy ... also has cervical spondylosis particularly at C4/5”.

36. Dr Bosanquet opined that the diagnosis of the left shoulder was rotator cuff tear with retraction and glenohumeral osteoarthritis, and that work had not been a contributing factor to either the left shoulder or the cervical spine condition. He said the left shoulder had very similar changes to the right shoulder, and that both shoulders developed similar pathology without any specific history of injury and that there had been no work injury to the left shoulder. He also noted that the applicant’s “cervical spine is constitutional and symptoms arising from that area are due to the deterioration of those underlying degenerative changes”.

37. Dr Bosanquet examined, and reported on, the applicant again in November 2020. At this stage, he was provided with a report of Dr Enderey-Walder of 1 September 2020, and updated reports from Drs Herald, McKechnie, Balasingham and a report of Dr Lingathas dated 15 February 2020. The history he recorded was similar or essentially the same as that recorded in his June 2019 report. Then, after further clinical examination and assessment of an updated history of the applicant’s symptoms and investigations, he opined that the applicant suffered a massive right shoulder rotator cuff tear and dislocation of the long head of biceps, that those changes had been long-standing, and that they had been aggravated by the incident. He also opined that while the employment had aggravated the massive rotator cuff tear in the right shoulder, that had been appropriately managed with the RSR and that “his employment no longer remains the substantial contributing factor to his current symptoms. These are due to the pre-existing changes in his shoulder”. He also undertook a WPI assessment, restricting himself to the right shoulder/upper extremity, and he found a 22% WPI, but deducted 50% of that on account of the “pre-existing rotator cuff problems in his shoulder”, resulting in an 11% WPI. He also allowed 2% WPI with respect to scarring.

Submissions for applicant

38. There should be leave to rely on the AARD given that “the amended pleadings has already been admitted into proceedings without objection”. The applicant’s case is clear enough having regard to the evidence. There is no prejudice to the respondent if such leave was given.

39. There is no opposition to leave being granted, pursuant to s 289A of the 1998 Act, for the respondent to rely upon the dispute matters raised in the Reply.

40. A res judicata and issue estoppel is conceded with respect to any claim for permanent impairment to the cervical spine resulting from the incident or any condition as a consequence.

41. The applicant statements show that the nature and conditions of his employment were physically demanding and arduous, and had been for many years before the incident.

42. The treating medical evidence and expert reports from Drs Guirgis and Enderey -Walder clearly show the applicant sustained disease of gradual process type injuries to both shoulders and his cervical spine as a result of the nature and conditions of his employment; and that such nature and conditions were the main contributing factor to those injuries. The opinion of Dr Bosanquet should be discounted because he failed to take any history of the applicant’s employment duties each time he assessed the case. The applicant sustained injuries to both of his shoulders and his cervical spine as a result of the nature and conditions of employment.

43. There should be a referral to a Medical Assessor for assessment of impairment of the applicant’s cervical spine, left upper extremity (shoulder) right upper extremity (shoulder) and scarring resulting from the nature and conditions of employment and the frank injury to the right shoulder on 1 February 2018 and resulting left shoulder condition.

Submissions for respondent

44. Contrary to the submissions for the applicant, there was no consent by the respondent to the applicant amending the nature of the claim proposed. The applicant requires leave to rely upon the AARD. Up to the point when the applicant lodged the AARD, these proceedings did not “pertain to a disease injury to the left shoulder and the cervical spine”. The respondent is entitled to notice of the case against. If the respondent is not allowed to meet the applicant’s claim with regard to the cervical spine and left shoulder – in the manner proposed below – the applicant then ought not be allowed to bring a claim with regards to these body parts.

45. The respondent seeks to answer the amended claim by disputing that the applicant;

(a) is estopped by an Anshun estoppel from claiming on the basis of a disease injury in relation to the cervical spine and left shoulder;

(b) is estopped by virtue of res judicata principles from making a claim on the basis of a disease injury to his cervical spine;

(c) has sustained disease injuries to his neck and/or left shoulder and/or right shoulder.

46. The respondent raised the above disputed matters relatively promptly manner in the reply. The applicant has been on notice about these dispute matters since then and before the telephone conciliation conference on 9 February 2021. The “matters sought to be placed in dispute also do not cause either party to adduce further evidence (and)... pertain to long-established legal principles which the respondent seeks to apply to the evidence as has been lodged and admitted into evidence”. There is no prejudice to the applicant. Having regard to the principles in set out in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services [2007] NSWWCCPD 227 (Mateus) leave pursuant to s 289A of the 1998 Act should be granted to the respondent to be able to agitate the proposed defences in all the circumstances.

47. Having regard to the 2019 proceedings, the applicant is estopped from making claims in relation to the left shoulder and cervical spine on the basis that he has sustained disease injuries caused by the nature and conditions of his employment. Those proceedings started with a letter of claim dated 28 June 2019 which show that the applicant sought to make a claim for lump sum compensation, and relied on Dr Guirgis’s report of 26 June 2019. This report opined that the applicant had sustained disease injuries, caused by the nature and conditions of his employment with the respondent, to his right shoulder, left shoulder and cervical spine. The doctor specifically apportioned the impact of the nature and conditions aspect on those body parts. Therefore, the applicant then had evidence which demonstrated to him that the nature and conditions of his employment had caused him a disease injury.

48. The 2019 proceedings were then commenced with the applicant making a claim for both treatment expenses in relation to the left shoulder as well as a claim for lump sum compensation. At the time of the 2019 proceedings, the report of Prof Murrell of 15 April 2019 was also available to the applicant. This referred to the applicant having “had long standing pain in his left shoulder related to his work”. A further report of Prof Murrell, on 18 September 2019 was obtained by the applicant’s solicitor, and is dated about nine days subsequent to the filing of the ARD in the 2019 proceedings. This report again refers to, inter alia, “...long standing pain in his left shoulder which he related to his work and... after his (RSR)... had to use his left shoulder more ...and his (left shoulder) problems worsened...”.

49. A notice under s 78 of the 1998 Act was issued by the respondent on 8 July 2019. This made it clear that the allegation of injury, in relation to the cervical spine and left shoulder, was denied. That denial was made after noting the opinion of Dr Guirgis which included an opinion that the applicant had sustained a disease injury. The respondent had denied the applicant had sustained a disease injury; so the dispute raised in the 2019 proceedings was not on the basis of a frank injury alone. There was a live dispute between the parties regarding injuries to the cervical spine and both shoulders. Despite this dispute, and having available the evidence which indicated he had sustained a disease injury, the applicant did not plead and litigate such injuries. The respondent relies upon the comments of McColl JA in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [81-84] (Habib). The existence of conflicting judgements is not a necessary element for an Anshun estoppel to apply.

50. Because the issue of injury to the left shoulder and cervical spine was clearly in dispute, it was unreasonable for the applicant to not plead and ventilate a disease injury claim with regard to these body parts. He was expected to have done this because of the existence of the dispute pertaining to injury. He not only had expert evidence available to him but also evidence from the treating doctors suggesting he had sustained a disease injury to the disputed body parts.

51. That the claim for the lump sum compensation was ultimately discontinued does not matter. Given the importance of establishing an allegation of injury, it was unreasonable for the applicant to have not pleaded or litigated the facts that he had sustained a disease injury to his neck and left shoulder. Injury is the “gateway to compensation and depending on the type of injury found a plethora of different conclusions follow”. Moreover, the applicant did not discontinue the dispute pertaining to injury in the 2019 proceedings. To the contrary, he amended his claim to include the allegation of injury to his cervical spine and agreed to an award for the respondent in that regard. Therefore, the dispute pertaining to the disputed injuries was always on foot and remained on foot.

52. The dispute in the present proceedings pertain to injury which is virtually the same as that which existed in the 2019 proceedings, noting the dispute raised in the 2019 s 78 notice. These allegations of Anshun estoppel are not a mere technicality. This is not a case where the allegation is made simply because the proceedings are closely related. There was no valid reason for the applicant to have not pleaded or litigated the earlier proceedings with an allegation of disease injury to his left shoulder and neck.

53. Despite injury being an issue in the 2019 proceedings, the applicant only pleaded one of the limbs of “injury” that were available to him. Clearly, the allegation of a disease injury was integral to that dispute about injury. The opinion of Dr Enderey-Walder obtained for the purposes of the present proceedings does not alter the respondent’s argument. He was acting upon a similar history reported by the applicant to the history given to Dr Guirgis, and he made findings similar to those of Dr Gurgius and Prof Murrell.

54. The respondent relies on Ada v Westmead Centre Parramatta Hospital [1985] NSWCC 3; 1 NSWCCR 101 at [103] and [106] (Ada). A consent judgement can create res judicata estoppels, although they do so “only as to matters which are necessarily decided” (Rail Services Australia v Dimovski [2004] NSWCA 267; Habib at [186]). The 2019 COD, particularly by orders 2 and 3, stop the applicant from alleging a disease injury to his cervical spine in the 2021 proceedings. These orders show the applicant amended his 2019 claim to include an allegation of injury to the cervical spine. An award in favour of the respondent in relation to that injury was then made. These orders should be construed by reference to what a reasonable person would understand by the language the parties have used in the orders, having regard to the context in which the words appear and the purpose of the transaction (Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWCCPD 4). The cervical spine issue has been decided with finality.

55. There is no distinction sought to be drawn, when construing the words “in respect of the allegation of injury... to the cervical spine” between a frank injury and a disease injury. Alternatively, if it is considered that the meaning of orders 2 and 3 are not so clear, it is objectively apparent from the report of Dr Guirgis, which can be used as extrinsic evidence to assist construction, “indicated that he had sustained a disease injury to his cervical spine”. A reasonable person would understand in these circumstances by the language used by the parties in the orders that the parties intended to include the disease injury when the award in favour of the respondent in relation to the cervical spine, in order 3, was agreed on.

56. In the alternative to the estoppel arguments, the Commission would not be satisfied that the applicant has sustained disease injuries to his cervical spine, or either shoulder. The allegations with regard to a disease injury are not consistent with contemporaneous medical evidence which, based on the applicant’s own reporting, suggests he sustained a frank injury to his right shoulder during the incident, and a consequential injury to his left shoulder.

57. The Commission ought not place any weight on the medical opinions that the applicant has suffered a disease injury. These opinions are inconsistent with the history noted in the evidence of the medical opinions from Drs Sakthival, Herald and McKechnie (noted at pars 88-90 of the respondent’s submissions).

Submissions for applicant in reply

58. The respondent has not made a submission to support an estoppel of any kind with respect to the claim for impairment resulting from the claimed disease injury to the right shoulder. It is thus assumed that any argument in this regard is abandoned; and subject to the applicant being successful in his argument that the right shoulder injury arose from the nature and conditions of employment (presumably on the basis of a disease), this body part can be referred to the medical assessor in respect of both the frank and disease injury – and combined with that caused by the accepted consequential condition to the left shoulder.

59. The applicant disagrees with the respondent’s characterisation of the s 78 notice dated 8 July 2019. Sections 4 and 9A of the 1987 act were never placed in issue. This notice stated that further clarification was sought from Dr Bosanquet before liability would be determined. In any event, there was no need to plead or litigate a disease injury when the need for surgery arose from the pleaded consequential condition, and the lump sum claim was discontinued. “It is of every consequence the lump sum claim was discontinued and that is the very reason why Anshun estoppel does not apply in the circumstances”.

60. Applying Anshun estoppel to “mechanisms of injuries and body parts, the liability for which was only required to be determined in respect of a claim that was discontinued and hence not so determined” is not logical and does not align with the practice of the Commission. The applicant refers to the decision in Israel v Catering Industries (NSW) Pty Ltd [2017] NSWWCCPD 53 at [114] - [127]. After the lump sum claim had been discontinued in the 2019 proceedings, the only dispute required to be determined was the need for surgery to the left shoulder, the cause of which was a consequential condition, not the nature and conditions of the applicant’s employment. Without there being a consequential condition, the applicant would not have required surgery and as such there was no other basis to ground the relief claimed. On this basis it was not unreasonable for the application not to plead the disease condition to the left upper extremity or cervical spine.

61. The respondent’s submission (that the dispute over the cervical spine in the 2019 proceedings was continuing as the application was amended to include the cervical spine in the description of injury) is disingenuous and does not reflect the nature of settlement negotiations in the Commission. A “worker is entitled to pursue his rights independently”. In determining whether an Anshun estoppel arises, the assessment should be made after the lump sum claim was discontinued, then determine what was necessarily required to be pleaded and determined. The need for surgery was materially contributed to by the consequential left shoulder condition, not the disease injury. The respondent has not referred to any evidence to support its claim that the “alternative case” was plainly available to support the need for surgery in the 2019 proceedings (Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25 at [130] (Booth).

62. As to res judicata, the 2019 COD must be read in the light of the pleadings in that case – claiming in respect of a personal (frank) injury. Orders 2 and 3 the 2019 COD clearly relate to the incident. To imply that they relate to a cause of injury that has not been pleaded belies a common sense reading of the document. The question to be decided in the present proceedings is not the same as that determined in the previous proceedings due to the different mechanism of injury pleaded.

Further clarification of submissions for respondent

63. Following the submission for the applicant in reply (par 58 above), noting his assumption that the respondent had abandoned any argument for estoppel of any kind regarding the disease injury to the right shoulder, and in circumstances where there was conflicting or potentially conflicting submissions for the respondent in this respect, I called for clarification about this from the respondent. The respondent then confirmed that it did not seek to allege that the applicant was estopped from making a claim on the basis of a disease injury to his right shoulder, but maintained the applicant was estopped from making a claim on the basis of disease injuries to the left shoulder and the cervical spine.

FINDINGS AND REASONS



The First Issue – whether the applicant can rely on the AARD

64. Ultimately, while the respondent did not consent to the applicant having leave to rely on the AARD, there was no opposition to such leave being given (assuming the respondent was able to agitate its identified defences), nor did the respondent submit that it would be prejudiced if such leave were given. I grant leave for the applicant to rely upon the AARD.

The Second Issue – can the respondent agitate previously unnotified dispute matters?

65. A dispute cannot be referred for determination unless it concerns matters previously notified as disputed – subject to s 289A (4) of the 1988 Act. I find, pursuant to that provision, that this dispute, and which relates to previously un-notified matters, may be heard and dealt with by this Commission. I am of the opinion that it is in the interests of justice to do so, after having considered the submissions for each party and the principles in Mateus. The applicant has not opposed this course, or sought to identify any prejudice he would suffer.

The Third Issue – is the applicant’s claim estopped by Anshun estoppel principles?

66. The respondent carries the onus to show the relevant or necessary estoppel. In Booth, President Judge Phillips (the President) stated (at [130]) that:

“... the objective of Anshun estoppel is the public policy that there are no conflicting judgements on the same set of facts. Applying the relevant principles, it must be determined whether the claim or defence was so closely related to the earlier subject matter that it would reasonably have been expected to have been raised.”

67. The President also quoted (at [129]) this statement by McColl JA in Habib:

“A strict approach is necessary in an Anshun estoppel case to the enquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient ; a technical approach is not helpful, the doctrine being concerned with substance and not form ...”

68. In Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 (Miller No 5) (at [179]), the President quoted this description of an Anshun estoppel by McColl JA in Habib:

“The principle commonly referred to as Anshun estoppel ... involves an extended doctrine of res judicata ... operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’ ... will be an estoppel if it appears that ‘ the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’ ... The test is one of reasonableness. ...” (President’s emphasis).

69. The President went on, in Miller No 5 (at [181]), to note this passage from Anshun:

“... the likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in the second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction ...” (emphasis added)

70. The President also noted, in Miller No 5 (at [184]) this warning from McColl JA in Habib:

“... shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’ ...” (President’s emphasis)

71. I have also taken into account the President’s comments in Miller No 5 about the need to consider the principles now found in s 43 of the Personal Injury Commission Act 2021(the PIC Act): proceedings are to be conducted with as little formality and technicality as the proper consideration of the matter permits, and the Commission is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal form; and the relevance, for the purposes of consideration of Anshun estoppel principles, of the reconsideration powers of the Commission found in s43 of the PIC Act and the terms of s 56 of the PIC Act, relating to the binding nature and finality of decisions by the Commission (at [186-187]). The President noted, inter alia, the following in this respect:

“...this reflects an important aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice ... this not only includes the finality of litigation and the prohibition on conflicting judgments, but also the burden upon both a defendant and the court and tribunal system in having to determine disputes arising from a common substratum of facts twice in the same cause ...”

72. It is necessary to analyse this Anshun issue by delineating between the alleged cervical spine injury and the “consequential injuries” to the applicant’s left shoulder. The reference to “consequential injuries” to the left shoulder comes from the AARD, as well as at various points in the submissions for the applicant. However, counsel for the applicant has also referred to a consequential condition to the left shoulder. The pleadings and submissions for the applicant also refer to the cervical spine and neck interchangeably. However, the submission for the applicant (par 4) notes the AARD essentially describes the relevant injury in that respect to the cervical spine, and the content of the whole of the submissions show that the cervical spine and the neck are referred to interchangeably. I also note the AARD alleges the nature and conditions of the applicant’s employment produced a disease type injury to his left shoulder. Similarly, the submissions for the applicant appear to conflate and/or treat interchangeably, concepts of a disease injury within the meaning of s 4(b)(ii) of the 1987 Act and the concept of nature and conditions of employment. In substance though, it is clear enough that the applicant is relying on a disease type injury, deemed to have happened on 1 February 2018, with the injurious event(s), as far as the cervical spine is concerned, being the nature and conditions of the applicant’s employment during the period.

73. As far as the left shoulder is concerned, the injurious events relied upon are both the nature and conditions of employment during the period, or alternatively, consequential “injury” as a result of overuse and overcompensation due to the right shoulder injury.

74. The applicant has submitted that the respondent has not referred to any “particular evidence” to support its claim that the alternative case was plainly available, pointing to Booth (at [130]) as analogous. In Miller No. 5, the President dealt with an appeal from a decision where it had been alleged before an arbitrator that a condition (anoxia and or cardiac arrest) was an injury pursuant to s 4 (a) – where a different arbitrator had earlier decided the case on the basis of a pleading under s 4(b)(ii) of the 1987 Act. At [202], the President noted this:

“...reference has been made to my decision in Booth in as much as it deals with an Anshun estoppel question. In that case, I held that there was no Anshun estoppel as there was no evidence at the time of the filing of Ms Booth’s original proceedings which would have put her or her advisors upon notice of a psychiatric condition which had not yet materialised. That is to be contrasted with the situation here where the knowledge of what transpired on 15 April 2011 was in fact well known to the parties and their representatives. I think the facts in Booth can therefore be distinguished accordingly from those in this matter.”

75. For similar reasons, I believe the facts in the present case can be distinguished from those in Booth. I accept the submissions for the respondent that a disease injury was integral to the dispute between the parties about injury. In fact, the forensic report for the applicant in the 2019 proceedings, from Dr Gurgius, clearly, and in detail, described how that disease injury came about and the importance of it. He referred to the incident triggering and aggravating the effects of underlying asymptomatic age-appropriate degenerative changes. He found it surprising that the applicant had not presented with significant complaints of pain before the incident. Strikingly (from the point of view of whether it was unreasonable of the applicant to have not raised or relied upon a disease-type issue in the 2019 proceedings), Dr Gurguis apportioned 90% responsibility to the “nature of employment” with respect to both shoulders and the neck, with 10% responsibility being allocated to the incident.

76. Dr Guirgis’ report was not the only evidence suggesting a disease type injury being relied upon in the 2019 proceeding. Dr Herald noted on 4 April 2018 that an MRI scan showed “chronic rotator cuff tearing and there may be an acute component to it but there has already been muscle atrophy and wasting”. Dr Bosanqet also referred to degenerative pathology in the applicant’s left shoulder and cervical spine – to the point where he clearly stated that the applicant’s “cervical spine is constitutional and symptoms arising from that area are due to the deterioration of those underlying degenerative changes”. He also stated each shoulder had developed similar pathology without any specific history of a work injury to the left. Clearly enough, this raised a dispute at least in relation to the alleged cervical spine injury.

77. I acknowledge the submission for the applicant - that both ss 4 and 9A of the 1987 Act were never placed in issue and the s 78 notice stated “... further clarification was sought from Dr Bosanqet before liability would be determined”. However, while that notice did state “EML have sent questions to Dr Bosanqet with a copy of Dr Gurguis’ report regarding the left shoulder and cervical spine ... liability for your left shoulder and cervical spine injuries will be reviewed on receipt of the supplementary report”, it otherwise clearly raised the dispute with respect to those matters and on the basis of what Dr Bosanqet had written in his 2019 report. Thereafter, there is no evidence of any change to the respondent’s position. To the contrary, the 2019 proceedings commenced about two months later, and the 2019 COD issued on 29 November 2019. At least in relation to the cervical spine, it is clear enough that there was an ongoing issue. The award for the respondent in respect of the allegation of injury and/or consequential injury to the cervical spine must allow for at least a likely inference of that.

78. I also agree with the submission for the respondent that Dr Enderey-Walder’s report was based on a similar history to that given to Dr Gurguis; and that Dr Enderey-Walder has made a finding similar to the findings of Dr Gurguis and Dr Murrell. This, again, should be looked at in the context of the evaluation of whether the respondent can prove it was unreasonable for the applicant to not rely upon a disease type injury in the 2019 proceedings. The applicant does not submit that there is any significant difference between the reports of or histories given to Drs Gurguis and Enderey-Walder; and he has relied upon the opinion of
    
    Dr Gurguis in support of his submissions on the Injury (the Fifth issue).

79. Given this evidence, I believe reliance on a disease type injury in the 2019 proceedings was very much a “point which properly belonged to the subject of (the 2019 proceedings), and which the...(applicant) ...exercising reasonable diligence, might have brought forward at the time...” (cf Anshun at [598]; Habib at [81]). I also believe this is a “claim or issue ... so connected with the subject matter of the (2019 proceedings) as to have made it unreasonable in the context of that ... proceeding for the claim not to have been made or the issue not to have been raised in that proceeding” (Tomlinson v Ramsey Food Proceeding Pty Ltd [2015] HCA 28; (2015) 256CLR507; (2015) 323ALR1 at [22] – Tomlinson).

80. Contrary to the submission for the applicant, the applicant has referred to evidence to support the “alternative case”. I recognise the applicant put that point (par 14 of his submissions) in a different way: that there was no particular evidence to support a case for “the need for surgery”. This leads into the essence of the case for the applicant on this Third issue. He submits there was no need to plead a disease injury to the left shoulder or cervical spine in the 2019 proceedings “in order to have the medical dispute determined”, and that an Anshun estoppel “would be inconsistent with the ability of a worker to pursue his ... rights independently”. He also submits that after the lump sum claim had been discontinued, the only dispute was the need for surgery to the left shoulder, the cause of which was the consequential condition, not the nature and conditions.

81. I do not accept these submissions, nor do I accept the proposition that “it is of every consequence that the lump sum claim was discontinued and that is the very reason why Anshun estoppel does not apply in these circumstances”. With respect, this submission urges an overly technical approach to the analysis of this Third issue. In determining whether an Anshun estoppel has been established, “a technical approach is not helpful, the doctrine being concerned with substance and not form” and the inquiry is “into realities and not mere technicalities” and the Commission can look at “any material that shows what issues were raised and decided” (Habib at [84]). In Ling v Commonwealth [1996] FCA1646; 68FCR180 at 184 (Ling - referred to in Israel at [123]), Wilcox J stated:

“...in considering reasonableness ... consideration must be given to all aspects of the case. They include the extent of the overlap between the facts underlying each claim; the greater the overlap, the easier it is to argue that it was unreasonable not to raise the matter in the first case. They also include any difficulties that existed, or might reasonably have been perceived, in raising the matter earlier ... in assessing the reasonableness of Mr Ling’s failure to raise his claim ... in the earlier action, it is necessary to look at the whole of the circumstances that he then confronted. His claim involved facts that overlapped the Commonwealth’s case to some extent, but were substantially extraneous to that case.”

82. By contrast, it is my opinion that there is great overlap between the facts underlying the 2019 proceedings and the 2021 proceedings. As identified above, the same, or essentially the same, facts appear in both sets of proceedings. Obviously, the report of Dr Enderey-Walder and the 12 November 2020 report of Dr Bosanqet were not in the possession of the applicant. However, there is no essential difference between the reports of Dr Gurguis and Dr Enderey-Walder. Also, Dr Bosanqet’s 12 November 2020 report, relevantly, contained essentially the same fact and opinion as his 2019 report. Also, the clinical notes of the GP practice, reports from Dr Herald, various medical certificates and radiological imaging reports were part of the 2019 proceedings and attached to the application in those proceedings.

83. That is not to say that the material or facts presented in the 2019 proceedings are otherwise identical to those in the 2021 proceedings. For example, the reports of Prof Murrell do not appear in the material attached to the 2019 application. On the other hand, the respondent submitted that his report of 15 April 2019 was available to the applicant (respondent’s submission par 53). But whether or not it was so available does not affect my opinion in this respect - which remains that the extent of the overlap between the facts in both sets of proceedings are more than great. They are essentially the same. The applicant does not point to any significant differences; except that the 2021 proceedings are based on a disease injury rather than a personal or “frank” injury relied on in the 2019 proceedings.

84. In Ling, Wilcox J also referred to the relevance of any difficulties that existed, or might reasonably have been perceived, in raising the matter earlier. Apart from stating that this was unnecessary given the discontinuance of the lump sum claim (2019 COD clause 1), there is no explanation from the applicant about any such difficulties existing or being perceived. That is not to reverse the onus carried by the respondent; nor is it, on its own, determinative of the overall unreasonableness question. But it is one factor, albeit minor, pointing towards it being unreasonable not to rely upon the disease injury in the 2019 proceedings.

85. Orders made by consent may create an estoppel and may be considered for the purposes of determining whether subsequent proceedings would lead to conflicting judgments. However, they do so “only as to those matters which are necessarily decided”. The consent orders and all evidence should be closely examined so as to “ascertain whether any or what adjudication of matters in dispute was expressed, or necessarily involved in the actual decision assented to ...” (Habib at [186]). I have conducted such examination, not only by reference to the facts and/or evidence that was available in the 2019 proceedings, but also by careful inspection of the text of the 2019 COD. After such examination, I find it is clear that the parties necessarily intended or decided that an injury to the cervical spine was alleged by the applicant (and, by inference, disputed by the respondent), and for there to be an award for the respondent with respect to the alleged injury and/or consequential injury to the cervical spine. I appreciate that this at least may be said to be so with respect to a personal, rather than a disease injury.

86. I also accept the applicant’s submission that the law does not require “every single dispute in the PIC ... to be litigated despite it not being required to be determined ... for the claimed benefit”. The summary of the authorities by Deputy President Wood in Israel (at [119]) illustrates that is not necessarily so. But, contrary to the applicant’s submission, I do not think the respondent (at par 64) has formulated its submission in that way: its submission focuses on the particular facts in the present case, stating that the fact that the claim for lump sum compensation was ultimately discontinued “does not matter” given the importance of “establishing ...an injury ... in the context of the ... legislation ... it was unreasonable for the applicant to have not pleaded or litigated the facts that he sustained a disease injury to his neck and left shoulder ...”. This submission is unsurprising, because an injury, whether by way of disease or personal injury, is the underpinning foundation for the entitlement to benefits under the 1987 Act. For example, in Thompson v George Weston Foods [1990] NSWCC 18; 6 NSWCCR 370, McGrath CJ stated:

“...issue estoppel can arise as a consequence of an adjudication on a particular issue, which would prevent a party bringing, or defending, a claim in relation to a different benefit. I do not consider that there is any rule which would prevent a worker bringing an action claiming one type of benefit, and leaving another type of benefit for later, or other, adjudication. In doing this, he may in some cases risk being penalised in costs, or risk failing on an issue which would debar the other claim. If he lost on the issue of injury he could not succeed in gaining compensation for a consequential benefit, whether it was included in the original application, or not” (emphasis added).

87. Against this background, and in the context of evaluating whether it was unreasonable for the applicant not to rely upon a disease injury in the 2019 proceedings, I do not think it matters that the there was a discontinuance of the lump sum claim in clause 1 of the 2019 COD. Clauses 2 and 3 of that COD make it clear there was an award in favour of the respondent in respect of the allegation of injury and/or consequential injury to the cervical spine. That consent determination makes it clear enough that the applicant “could not succeed in gaining compensation for a consequential benefit”, including a lump sum benefit notwithstanding that aspect of the proceeding being discontinued.

88. A very important factor in analysing the Third issue relates to the aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. If the applicant were to be allowed to reframe the case in relation to the alleged injury or consequential injury to the cervical spine now, such would produce, or at least “contribute to the existence of” conflicting or contradictory judgments “though they may not be pronounced on the same cause of action as long as they appear to declare rights which are inconsistent in respect of the same transaction” (Habib at [83]; Anshun at [603-604]).

89. For all those reasons, I find that the respondent has proved that the applicant is estopped in the 2021 proceedings from relying upon a disease type injury, including on the basis of the nature and conditions of his employment, as the cause of such alleged disease injury.

90. The exercise of the evaluative element as to whether it was unreasonable for the applicant not to rely upon a disease injury, including the nature and conditions of employment being an injurious event, in the 2019 proceedings is essentially a discretionary one. With respect to the applicant’s alleged left shoulder injury or (accepted) condition, I believe it was open to him to include this disease pleading in the 2019 proceedings. However, I do not believe it was unreasonable (in the sense described in Tomlinson), or something he “could reasonably have been expected to do in the earlier proceedings” (Habib) for him not to have done so.

91. The first reason for this is that I believe the public policy considerations referred to above, relating to the potential for conflicting or contradictory determinations, does not arise, at least not clearly. I also note that the respondent does not seek to allege that the applicant is estopped from making a claim on the basis of a disease injury to the right shoulder, yet maintains he is estopped from making a claim on the basis of disease injuries to the left shoulder. It is unclear why the respondent concedes the ability of the applicant to rely upon a disease injury for the right shoulder but not for the left, particularly given the concession about the consequential condition of the left shoulder as a result of the right shoulder injury.

92. For those reasons, I find that the applicant is not estopped by virtue of the Anshun estoppel principles from making a claim on the basis of disease injury in relation to his left shoulder.

The Fourth Issue – whether the applicant is estopped by virtue of res judicata principles from making a claim on the basis of a disease injury to his cervical spine

93. In Miller, the President addressed the argument as to res judicata in this way (at [153-154]):

“...the respondents say that the cause of action under s4 (a), with respect to personal injury, is separate and independent of a disease claim brought under s4(b) (i) of the 1987 Act. This supports the respondent’s submission that the cause of action pursued in the 2019 proceedings did not merge into the 2016 proceedings judgment. The appellant however contends that the separate applications in Miller No. 1 and Miller & Anor No. 4 are so close as to effectively be the same proceedings ... (and) ... both claims related to lump sum compensation ... whilst this submission is superficially attractive, I do not accept it for the purposes of res judicata. A claimant with respect to a death claim ... has, depending upon the facts of the case, the choice as to whether to advance the claim on the basis of an injury (s4(a)) or as a disease claim (s4(b)(i)). Being separate and distinct causes of action, as I found in Booth, ‘ the fundamental elements of res judicata are absent as the very right or cause of action claimed in proceedings before [the second arbitrator] was not passed into judgment in the proceedings before [the first arbitrator]. As a consequence, I do not find that the proceedings ... are estopped by the principles of res judicata”.

94. Relevant to this Fourth Issue, I believe the above findings by the President in Miller are reasonably analogous to those in the present case. Accordingly, I find that the claim on the basis of an injury within the meaning of s 4(a) of the 1987 Act in the 2019 proceedings was a separate and distinct cause of action, and the present claim, in the 2021 proceedings, is a separate and distinct cause of action based upon a disease injury. Therefore, while it may be a moot point, having regard to my findings on the Third Issue, I do find that the applicant would not have been estopped from agitating the claim with respect to the cervical spine based upon a disease-type injury.

95. The respondent’s pleadings and submissions did not raise any issue estoppel argument.

The Fifth Issue - whether the applicant has sustained a disease injury to his cervical spine and/or left shoulder and/or right shoulder

96. Having regard to my finding that the applicant is estopped from proceeding with an argument or claim that he has sustained a disease injury to his cervical spine, I think it is neither necessary or appropriate for me to deal with that aspect of this issue. As to the right shoulder, I am actually persuaded the evidence favours, on the balance of probabilities, that the applicant’s right shoulder was injured in the manner alleged in the AARD – i.e. as a result of the nature and conditions of his employment during the period, with the deemed date of injury as 1 February 2018; as well as the incident on 1 February 2018. I am also actually persuaded that it is more likely than not that the applicant’s left shoulder sustained a disease type injury during the period, as well as there being a consequential condition involving the left shoulder as a result of the overuse and over-compensation of that shoulder due to the right shoulder injuries and surgery.

97. I have come to these conclusions and findings after taking into account all of the evidence. I have earlier set out the applicant’s statement of 13 January 2021 in some detail with respect to the work he was required to do between 2013 and 1 February 2018. He described heavy and arduous and repetitively physically demanding work involving regular lifting and handling of boxes of up to 30 kg and stacking them on pallets. There is no evidence from the respondent to suggest the applicant’s evidence in this respect is incorrect.

98. I also regard the evidence of Dr Guirgis on this Fifth Issue as persuasive. He found that the incident resulted in an acute injury to the rotator cuff of the right shoulder – and that this site had underlying chronic overuse pathology related to the nature and conditions of the applicant’s employment since 2013. He said this included excessive loading of his shoulders and neck which gradually and progressively reduced the tissue failure tolerance. This opinion makes sense and has symmetry with the unchallenged evidence of the applicant about the scope and content of the nature and conditions of his employment.

99. My persuasion of the above matters on this issue is comforted further by the opinion of
    
    Dr Enderey-Walder. Again, he has come to similar findings as Dr Guirgis. Dr Bosanqet has provided an opinion which does not, at least clearly, contradict the opinions of Drs Guirgis and Enderey-Walder, in relation to the right shoulder. For example, he opined that on 1 February 2018, the applicant aggravated a chronic rotator cuff tear with a cuff arthropathy. In any event, Dr Bosanqet does not sufficiently engage with, or conduct any or any adequate analysis of, the nature and conditions of the applicant’s employment, at least to an extent that would allow me to be dissuaded by the opinions of Drs Guirgis and Enderey-Walder. In other words, while Dr Bosanquet does find that there is degenerative pathology in the applicant’s left shoulder, his dismissal of the relevant work relationship – on the basis of noting that there was “no work injury to the left shoulder” is unpersuasive. Because he did not consider the question of whether there had been an aggravation of that pathology by the nature and conditions of that employment during the period.

100. Dr Bosanqet does find that the condition of the applicant’s left shoulder is not related to work and that both shoulders developed similar pathology without there being any specific history of injury or work injury to the left shoulder. I do not find that opinion as persuasive as the opinions from Drs Guirgis and Enderey-Walder in relation to the left shoulder injury being caused by the nature and conditions of the applicant’s employment – and also representing a consequential condition as a result of overuse and overcompensation as a result of the right shoulder injury.

101. As to the disease injuries to the right shoulder and left shoulder, I note that Dr Guirgis refers to the employment being “a substantial contributing factor” to such injuries. However, I do not believe his formulation of those words was an intended attempt to precisely identify whether the contribution was “a substantial” or “the main” contributing factor. There was no question guiding him in this respect, at least not which he referred to. I am satisfied however that the overall terms of his report allow me to make a finding that the nature and conditions of the applicant’s employment during the period was the main contributing factor to the aggravation of a degenerative disease in the applicant’s left and right shoulders. This is clear enough at least from his apportionment of 90% contribution to these injuries from the nature and conditions of the applicant’s employment.

102. Similarly, Dr Enderey-Walder does not appear to have specific questions to guide his answers. However, immediately underneath the heading “Opinion”, he opined that “as a consequence of the nature and conditions of his daily work at UPS ... developed degenerative changes at the rotator cuff of both of his shoulders since February 2018 ... acute episode of snapping and pain at the right shoulder which had brought attention to the quite extensive and established rotator cuff pathology ...” While this may hint he believes that the nature and conditions of the employment caused, rather than simply aggravated, the degenerative changes, there is insufficient clarity or reasoning in order to be satisfied of that. But this report does comfort me further in the finding that the employment was the main contributing factor to an aggravation of underlying degenerative changes at the rotator cuff of both shoulders.

103. For the above reasons, I find that the applicant has suffered a disease injury as a result of the nature and conditions of his employment during the period

104. There is no issue between the parties about the applicant suffering a personal injury given within the meaning of s4(a) of the 1987 Act as a result of or during the incident, nor that the applicant suffers a consequential condition of his left shoulder as a result of the injury to his right shoulder.

SUMMARY

105. The applicant has leave to rely upon the AARD dated 9 February 2021.

106. The respondent is granted leave to dispute previously unnotified matters pursuant to s 289A of the 1998 Act – by being able to rely upon the “matters in dispute” raised in the Reply.

107. The applicant is estopped, by Anshun estoppel principles, from making a claim in the 2021 proceedings of a disease injury in relation to his cervical spine – including on the basis of the nature and conditions of his employment with the respondent during the period.

108. I find the applicant is not estopped, by Anshun estoppel principles, from making a claim in the 2021 proceedings on the basis of a disease injury in relation to his right and left shoulders – including by reference to the nature and conditions of his employment during the period.

109. I note that there is no issue about, and the parties agree that, the applicant has sustained a personal injury within the meaning of s4(a) of the 1987 Act, on 1 February 2018, in relation to his right shoulder – and that he has also sustained a consequential condition of his left shoulder as a result of that injury to his right shoulder.