Ahmadi v State of New South Wales (Royal Hospital for Women- South East Sydney Local Health District)
[2021] NSWPIC 85
•19 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ahmadi v State of New South Wales (Royal Hospital for Women- South East Sydney Local Health District) [2021] NSWPIC 85 |
| APPLICANT: | Aziza Ahmadi |
| RESPONDENT: | State of New South Wales (Royal Hospital for Women – South East Sydney Local Health District) |
| MEMBER: | Mr Cameron Burge |
| DATE OF DECISION: | 19 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Permanent impairment compensation; lumbar injury accepted, alleged consequential conditions to left hip and right shoulder disputed; causation; applicant bears onus of proving common-sense causal nexus between original injury and alleged consequential condition; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 followed; the test for the presence of a consequential condition is less stringent than that necessary to prove the existence of an injury as that term is defined in s4 of the 1987 Act; an important element in establishing a consequential condition is the presence of symptomology in an affected body part which can be linked back to the original injury; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 discussed and followed; Held- the applicant made no complaint of symptoms in her left hip to any doctor, treating or medicolegal; the evidence does not establish the presence of a condition in the left hip, let alone one linked to the accepted injury; the medical evidence does not establish a causal link between the applicant developing adhesive capsulitis in her right shoulder and the original lumbar injury and subsequent surgery; applicant’s lumbar spine injury referred for medical assessment; award for the respondent on the claims for subsequent conditions to the left hip and right shoulder. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury to her lumbar spine in the course of her employment with the respondent on 1 September 2016. 2. The applicant suffered an injury to her lumbar spine in the course of her employment with the respondent on 10 December 2018. 3. Award for the respondent on the claim for consequential conditions to the left lower extremity (hip) and right upper extremity (shoulder). 4. The matter is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 1 September 2016 and 10 December 2018 Body Systems referred: Lumbar Spine; scarring (TEMSKI) Method of assessment: Whole person impairment. 5. The documents to be referred to the Assessor to assist with their determination are to include the following: (a) This Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute (the Application) and attached documents, and (c) Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Aziza Ahmadi (the applicant) suffered injuries to her lumbar spine on 1 September 2016 and 10 December 2018. Those injuries are not disputed and will be the subject of a referral for a medical assessment. The applicant also alleges that as a result of the injury on 10 December 2018, she suffered a consequential condition to her left hip and to her right shoulder, and also brings a claim for permanent impairment compensation in respect of those body parts.
The consequential conditions are disputed by the State of New South Wales (Royal Hospital for Women - South East Sydney Local Health District) (the respondent), which alleges neither the left hip nor right shoulder conditions relate to the accepted lumbar spine injuries, and should therefore not be the subject of referral for medical assessment.
ISSUES FOR DETERMINATION
The parties agree the only issues in dispute are whether the applicant suffered consequential conditions to her left hip and/or right shoulder as a result of the accepted lumbar spine injury on 10 December 2018.
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded to an arbitration hearing before me on 6 April 2021. On that occasion, Mr P Stockley of counsel instructed by Mr A Bonura solicitor appeared for the applicant and Mr D Saul of counsel instructed by Mr R Orr solicitor appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents; and
(b) Reply and attached documents.
Oral evidence
No oral evidence was called at the hearing.
FINDINGS AND REASONS
Consequential conditions generally
It is important at the outset to establish the relevant test for determining the presence of a consequential condition. As Mr Saul appropriately conceded, the test for establishing the presence of such a condition is not as stringent as that for determining whether an injury has been suffered, as that term is defined in section 4 of the Workers Compensation Act 1987 (the 1987 Act). The concession by Mr Saul is in keeping with decisions such as Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), in which Deputy President Roche noted it is not necessary for a worker alleging the presence of a consequential condition to establish that they have significant pathological change in the affected body part, only that there is symptomology which can be linked back to the original injury by virtue of an unbroken chain of causation.
In Moon v Conmah Pty Ltd [2009] NSWWCCPD 134, Roche DP confirmed what is the now accepted nature of a consequential condition when he found:
“All [the applicant] has to establish is that the symptoms and restrictions in [the affected body part] have resulted from the…injury.”
In determining whether a consequential condition has been caused by an injury, it is necessary to adopt a common-sense approach to the question of causation, as that test was framed by his Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). In that oft-cited judgment, his Honour said (at [462E]):
"Since that time, it has been well recognised in this jurisdiction that an injury can set in chain a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the [Commission] to award compensation under the Act.
The result of the cases is that each case where causation is an issue in a Workers Compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact…What is required is a common-sense evaluation of the causal chain. As the early case has demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions."
Consequential condition to the left hip
It is uncontroversial that the applicant bears the onus or proving any alleged consequential condition was caused by the accepted injury. For following reasons, I do not accept the applicant has discharged that onus of proof.
The main evidence in relation to the alleged left hip consequential condition arises from the applicant’s Independent Medical Examiner (IME) Dr Guirgis who, in his report finds the left hip condition to have been caused as follows:
"As to the further involvement of the left hip, in my opinion this would represent a secondary injury fitting under the umbrella of 'spine-hip syndrome'. This consequential involvement of the hip was caused by the radiculopathic hip abductor weakness and the altered kinematics and movement coordination of the deranged axial lumbar spine and the free mobile hip joint. There is a balance in the movement complex comprising the lumbar spine, the pelvis and the femur at the hip joint which eventually becomes overwhelmed because of the abnormally reduced range of movement of the injured lumbar spine and as a long term affect the adaptation to the imbalance fails leading to secondary impingement pathology in the hip joint as what happened in this case. [sic]”
The only other support for the presence of a left hip consequential condition comes from a report of Dr Shetty to the applicant's general practitioner dated 23 October 2019. In that report, Dr Shetty says:
"Aziza has features of persistent mechanical low back pain which are both facetogenic and discogenic in presentation. There is a degree of sciatic nerve irritation noted with some of her leg pain having a neuropathic flavour quite consistent with her biomechanical change in posture leading to muscle tightness in the hip rotators and abductors."
Mr Stockley submitted that the report of Dr Shetty was broadly consistent with the findings of Dr Guirgis.
The difficulty for the applicant in relation to the alleged left hip condition is that she makes no complaint of it herself. Indeed, her statement dated 22 July 2020 makes no complaint at all in relation to her left hip.
There is no question that the evidentiary bar required to satisfy a finding of consequential condition is lower than that necessary to find an injury, as that term is defined in section 4 of the 1987 Act. However, the totality of the lay and the medical evidence in this matter does not support a finding of consequential condition to the left hip, as it is the experience of symptomology in an affected body part which gives rise to a finding of such a condition, notwithstanding that such symptomology is usually supported by medical evidence of some description.
In this matter, the applicant makes no complaint of left hip problems to any treating or IME examiner. Rather, Dr Guirgis volunteers the presence of a hip condition and to a small extent that contention it is supported in a short paragraph in the report of Dr Shetty. However, when the applicant presented in September 2019 to Assoc Prof Miniter, IME for the respondent, there was no complaint at all of left hip problems. That remained the case when Assoc Prof Miniter again examined the applicant following her lumbar spine surgery, which examination he reported upon in his report dated 25 September 2020. Dr Miniter does, however, in his more recent report refer to the left hip in the context of it being raised by Dr Guirgis and dismisses the latter's opinion as not being sound in medical science. Moreover, the range of hip movement found by Assoc Prof Miniter was entirely normal upon the examination.
On balance, I am not satisfied that the preponderance of medical evidence supports a finding of consequential condition in the left hip. The applicant herself makes no complaint in relation to that body system, which in my view is a strong indication that there is no readily identifiable onset of a worsening of symptoms in that region. For these reasons, there will be an award for the respondent in relation to the claim for the consequential condition to the left hip.
Consequential condition to the right shoulder
The applicant’s case in relation to the right shoulder relies upon an alleged unbroken causal connection between the original injury and her lumbar surgery in 2018. She alleges that through having to sleep exclusively on her right side after that surgery, she developed a consequential condition by way of adhesive capsulitis in her right shoulder.
For the following reasons, I reject the applicant's contention.
There seems to be no dispute between the medical experts that the applicant suffered what is commonly known as a "frozen shoulder".
In his report, Dr Guirgis, IME for the applicant, attributed that frozen shoulder to the applicant having to sleep on her right side. At page 13 of the Application, Dr Guirgis said:
"Since the incident she could not sleep on the left side and had to sleep on her right side. As a result, she developed a frozen right shoulder which was confirmed on the MRI studies performed in September 2019"
That is the extent of Dr Guirgis’ opinion with respect to causation. As Mr Saul pointed out, that statement by Dr Guirgis does not satisfy the requirements of expert opinion being provided in a fair climate, and offends the principle set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. It is, as Mr Saul said a bare ipse dixit statement.
For his part, Mr Stockley submitted that Assoc Prof Miniter’s attribution of the applicant's frozen shoulder to her underlying diabetic condition is also an ipse dixit statement. Whilst that may be the case, it is important to keep in mind the applicant bears the onus of proof as to causation of a consequential condition, not the respondent. As Mr Saul noted, the applicant was treated in respect of her right shoulder condition by Dr Harper, shoulder and elbow surgeon. In his report to the applicant's treating general practitioner dated 12 September 2019, Dr Harper recorded the following history:
"Thank you for asking me to see Aziza a 60 years old right-hand dominant lady who presented with a four-month history of right shoulder pain and stiffness. She fell from a chair at work three years ago and experienced some right shoulder discomfort. She had lumbar spine surgery and remained on WorkCover."
There seems to be no issue that the history taken by Dr Harper in relation to the previous fall is incorrect. Rather, the applicant suffered a previous fall in which she hurt her left shoulder. There is no suggestion by either party that the applicant suffered any right shoulder injury before the alleged consequential frozen shoulder.
Later in the same report, after summing up the treatment which had been given to the applicant and noting the findings of an MRI, Dr Harper said "Aziza had right shoulder adhesive capsulitis [frozen shoulder] on a background of diabetes and thyroid disease." Mr Saul submitted Dr Harper's inclusion of those underlying conditions as the background to the applicant’s shoulder injury is consistent with him being of the view that they were the cause of the condition, rather than it being a consequence of the work-related lumbar injury.
Moreover, Mr Saul noted Dr Harper made no reference to the applicant's shoulder issues being caused by her having to sleep only on her right side after the lumbar surgery. Although the applicant's general practitioner provided a report in which he gave some indication that the sleeping patterns of the applicant were causative of the development of the frozen shoulder, that opinion was in fact a recitation of the applicant's own attribution of her symptoms. It did not, in my view, amount to a finding of the right frozen shoulder being a consequence of the original lumbar spine injury.
In my view, there is insufficient medical evidence to support a finding of an unbroken causal chain between the applicant's original lumbar spine injury and the development of her frozen right shoulder condition. Correlation is not causation, and there is no sufficient medical basis provided by any expert, medicolegal or treating, to in my view satisfy on the balance of probabilities the existence of a causal nexus between the original injury and subsequent surgery with the onset of the right frozen shoulder.
Accordingly, there will be an award for the respondent on the claim for consequential condition to the right shoulder.
SUMMARY
For the above reasons, the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
Cameron Burge
MEMBER
19 April 2021
0
4
0