Armstrong v State of New South Wales (Murrumbidgee Local Health District)
[2021] NSWPIC 238
•9 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Armstrong v State of New South Wales (Murrumbidgee Local Health District) [2021] NSWPIC 238 |
| APPLICANT: | Karen Armstrong |
| RESPONDENT: | State of New South Wales (Murrumbidgee Local Health District) |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 9 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Applicant registered nurse; several frank shoulder and cervical spine injuries; applicant’s statements and medical histories consistent and preponderance of medical opinion supports the applicant; respondent arranged Independent Medical Expert reliant on unproduced studies and generally inconsistent on diagnosis; section 9A discussed and applied; Held- awards in favour of the applicant for weekly payments and section 60 expenses and declaration that proposed cervical spine surgery is reasonably necessary resulting from injury. |
| DETERMINATIONS MADE: | Findings 1. The applicant in the course of her employment with the respondent: - (a) on 2 March 2018 suffered frank personal injury to her left upper extremity (left shoulder) whilst lifting a bag of fluid and a consequential condition to her right shoulder; (b) on 15 September 2019 suffered frank personal injury to her right upper extremity (right shoulder) whilst assisting a patient, and (c) suffered frank cervical spine injury which results from injuries both of 2 March 2018 and 15 September 2019. 2. The applicant’s employment with the respondent was a substantial contributing factor to the applicant’s injuries as identified in 1 (a) to (c) above. 3. The applicant suffered incapacity for work which results from her injuries and consequential condition within the meaning of section 33 of the Workers Compensation Act 1987 (1987 Act). Capacity and economic loss 4. The applicant’s capacity for work has not been extensively argued. It has been accepted that the applicant’s earnings per week so exceeded the statutory maximum that the latter should apply. 5. The award in relation to weekly payments is from 16 September 2019 to date and continuing pursuant to sections 36 and 37 of the 1987 Act at the maximum statutory rate. The respondent is to receive credit for weekly payments paid during this period. Section 60 6. In terms of the proposed cervical spine surgery I declare the proposed surgery to be reasonably necessary pursuant to section 60(5) of the 1987 Act and order the respondent to pay the reasonable costs of, and incidental to, that surgery. 7. There will otherwise be a general order in favour of the applicant in respect of section 60 expenses. Generally 8. Liberty is granted to either or both parties to apply should clarification of these orders be required. |
STATEMENT OF REASONS
BACKGROUND
Karen Armstrong (the applicant) is a 53 year old lady who was employed by State of New South Wales (Murrumbidgee Local Health District) (the respondent) as a registered nurse.
The applicant seeks weekly payments of compensation from 16 September 2019 (although it appears the applicant may have subsequently received some weekly payments from the respondent) and continuing. A claim is also made for a general order in respect of section 60 expenses.
The parties have agreed that if the applicant is entitled to weekly payments, the statutory maximum weekly payment (as adjusted) applies.
At the commencement of the arbitration hearing the applicant amended her claim to the following alleged injuries:
(a) On 2 March 2018 the applicant was lifting a bag of fluid and suffered injury to her left shoulder.
(b) After 2 March 2018 the applicant suffered a consequential condition to her right shoulder due to overuse.
(c) On 15 September 2019 the applicant was assisting an elderly patient who pulled on her right arm causing an injury to the applicant’s right shoulder.
(d) As a result of the 2 March 2018 and/or 15 September 2019 injuries the applicant sustained a consequential condition to her cervical spine being either frank injury (section 4 (a) of the Workers Compensation Act 1987 (1987 Act) or aggravation (etc) of underlying disease (section 4(b)(ii) 1987 Act).
ISSUES FOR DETERMINATION
This matter involves issues concerning occurrence of injury pursuant to section 4, the involvement of section 9A and section 4(b)(ii) of the 1987 Act as well as whether or not the applicant suffered the consequential conditions alleged.
PROCEDURE AND DOCUMENTS BEFORE THE COMMISSION
The matter came for conciliation and arbitration hearing in the Commission by telephone on 15 June 2021. Mr T Hickey of counsel instructed by Ms S Sutcliffe appeared for and with
the applicant. Mr B Loukas of counsel appeared for the respondent instructed by
Mr D Khoshaba. Ms J Brown was present on behalf of the insurer.
The following documents were before the Commission:
(a) Application to Resolve a Dispute and annexures lodged 7 April 2021 (Application).
(b) Reply and annexures lodged 30 April 2021 (Reply).
(c) Application to Admit Late Documents dated 30 April 2021 and annexures (admitted with no objection).
(d) Amended section 78 notices relied upon by the insurer (as to which some argument arose but appeared to have been resolved by the applicant’s amendments to the Application).
The matter was the subject of a conciliation in an effort to achieve resolution. Regrettably, despite my best endeavours settlement could not be achieved and therefore the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
SUBMISSIONS
On commencement of the arbitration hearing Mr Hickey made lengthy submissions as a result of which there was insufficient time to comprehensively receive Mr Loukas’ oral submissions. In those circumstances the parties were given leave to file and serve any supplementary written submissions. Subsequently, the respondent provided written submissions on 23 June 2021 and the applicant in reply on 30 June 2021.
DISCUSSION AND REASONS
The applicant’s statements
The applicant in her statement of 2 November 2020[1] confirms that on commencement of her employment (in or around 4 February 2008) she was required to undergo medical assessment[2] and she describes her duties[3] as a registered nurse.
[1] Applicant’s statement 2 November 2021 at p 1 (Application)
[2] Ibid at [9].
[3] [10].
The applicant confirms that on attempting to lift a bag of intravenous fluid with her left arm on 2 March 2018 she suffered immediate severe pain in her left upper arm.[4]
[4] [14].
The applicant provides detail of the fact that she had experienced some symptoms in her right shoulder before 15 September 2019 but on the latter date was attending to an elderly patient at 4 am who was morbidly obese.[5] This patient wanted to sit up and the applicant was attempting to assist her when the patient suddenly pulled heavily on her right arm causing severe pain in her right shoulder.
[5] [20]-[21].
The latter incident was witnessed by a kitchen staff member and a note was placed in the patient’s records. The respondent has not sought to produce any evidence to cavil with the contention that this incident did in fact occur.
The applicant provided a further statement of 5 December 2019 and paragraphs 22 to 28 set out the nature of the applicant’s treatment which appears to be consistent with the contemporary medical records. The respondent had contended that initially it was not until a meeting on 21 October 2019 that the respondent was told about the right shoulder, but an email exists in October 2019 outlining the applicant’s right shoulder pain.[6]
[6] Application at p 582.
The applicant includes reference in her statements to pain and symptoms in her neck, shoulders, arms and wrists and in particular spasms in her right arm up to four times per day.[7] The applicant in her statements generally describes the most obvious pain across her shoulder blades and towards her neck, which the applicant says she assumed was pain coming from her shoulders.
[7] Ibid at p 6.
Injury of 2 March 2018
The respondent in relation to the 2 March 2018 injury submits that the applicant’s work was not a substantial contributing factor pursuant to section 9A of the 1987 Act. In particular, the respondent refers to sub-paragraphs 9A (2)(d) and (e) and asserts that the injury or a similar injury would have happened anyway if the applicant had not been at work and the applicant’s pre-injury state of health has not been sufficiently addressed.[8] The respondent says that 800 millilitres of fluid would weigh no more than 800 grams so that the lifting of the bag of fluid to her shoulder height “was an entirely innocuous event”.
[8] Respondent’s submissions at [5].
The respondent has submitted that there is “simply no doubt that the applicant had a severe pre-existing disease condition of her shoulders” so that this Commission would have to find that the injury would have happened anyway.
The problems with this submission are several and I will endeavour to explain them in some greater detail:
(a) There is little evidence that the applicant had a severe pre-existing disease condition of her shoulders and no evidence that such condition was symptomatic.
(b) The expression “entirely innocuous event” appears to be a suggestion that the incident was of little moment, or was a mechanism which did not have medical significance in terms of the work the applicant was required to engage in.
Dr P Miniter does not use this expression in either of his reports of 11 December 2008 or 5 February 2020, although he describes the 2 March 2018 as a “minor incident”.(c) Dr Miniter does not engage with the issue concerning whether the applicant’s left shoulder injury was nonetheless caused by the incident on 2 March 2018. The respondent’s submission appears to suggest that the mechanism of injury could be incapable of occurring through such a relatively minor incident, but there is no evidence advanced of any expert nature to support that submission. Alternatively it is suggesting that the event was so minor that the applicant’s work was not a substantial contributing factor to the event or alternatively the pathology.
(d) Dr Miniter’s approach is simply an expression of his belief that the applicant was suffering from a constitutional condition. He does not address the question as to whether or not the applicant’s condition was probably caused by the incident. To make a conclusion that the incident would have occurred at about the same time anyway is to speculate in the absence of any material evidence, which would clearly lead this Commission into error.
(e) The respondent’s evidence does not rule out the involvement of the applicant’s work as a substantial contributing factor, but rather points to the underlying constitutional condition. The ultimate test is whether the activity in which the applicant was engaged was a substantial contributing factor to the injury.[9] In Clifton[10] Roche DP considered the case of an applicant who went walking from the staffroom to his office, suffered a coughing fit, causing him to blackout and fall to the concrete floor and injure his right hip. Ultimately it was accepted that the coughing fit itself was not related to the employment and could have occurred anyway. But the Deputy President held:
“The first factor (the fit and blackout) was clearly unrelated to his employment. The second and third factors were, on the evidence of Dr Fox, directly relevant and causing the injury. Whilst the concrete floor could not be said to be something that was peculiar to Mr Clifton’s workplace, it was a feature of his workplace with which he came into contact whilst doing something that was incidental to his work duties, that being: walking to his desk”.
[9] Mercer v ANZ Banking Group Ltd [2000] NSWCA 138.
[10] Department of Corrective Services v Clifton [2006] NSWWCCPD 310.
It is clear that in the present matter the applicant on 2 March 2018 suffered immediate onset of pain in her left shoulder whilst lifting the bag of intravenous fluid. The employment event was “real and of substance” to the applicant’s injury[11]. At the time of her injury she was performing a specific work task which she was employed to perform, and which was an inherent requirement of her employment. There does not appear to be any dispute that this was the mechanism of the applicant’s left shoulder injury and there are no medical or factual matters which weaken the causal connection such as pre-existing symptoms or a different factual scenario, to name a few. To the extent that there was a pathological predisposition to this injury, the respondent must take the applicant as it finds her. In terms of the section 9A indicia, the 2 March 2018 injury occurred:
(a) at work,
(b) during the applicant’s performance of her work,
(c) at a time during the applicant’s work,
(d) in the absence of any evidence that a similar injury would have happened anyway had the applicant not been at work,
(e) in the absence of any evidence of prior left shoulder injury or symptoms, and
(f) in the absence of any evidence of any other lifestyle issues away from employment which had given rise to her left shoulder condition.
[11] Badawi v Nexon Asia Pacific Pty Limited [2009] NSWCA 324 at [82]-[83]
The medical material: left shoulder and consequential right shoulder condition
The applicant underwent a left shoulder ultrasound on 11 April 2018 which noted an acute tear of her left shoulder together with tendinitis.[12] On 21 April 2018 the applicant underwent a left shoulder MRI scan which demonstrated a partial tear of her supraspinatus tendon[13] after which she underwent physiotherapy.[14]
[12] Application at p 90.
[13] Ibid at p. 92.
[14] p 93.
The applicant first saw Dr M Howard on 24 September 2018.[15] Dr Howard noted the MRI scan and an injection the applicant had in April 2018 and sought approval for a further injection.
[15] p 158.
In July 2019 the applicant’s general practitioner, Professor Wang, noted worsening left shoulder pain over the previous two weeks[16]. On 17 July 2019 the applicant underwent a cortisone injection to her left shoulder.[17] The applicant in a statement[18] confirms that she first mentioned her right shoulder symptoms to Dr S Siddiqui on 9 August 2019 and that she had been advised by Professor Wang a few months earlier to avoid lifting with her left arm and this is in my view generally consistent with the applicant’s consultations and histories.
[16] p 105.
[17] p 147.
[18] p 9 at [19].
It is clear that by 9 August 2019 when the applicant had a case conference with her rehabilitation adviser, she was complaining of right shoulder symptoms.[19] By 5 September 2019 Dr Howard was noting issues concerning right shoulder stiffness and pain and this is then about 10 days before the applicant’s alleged right shoulder injury on 15 September 2019.
[19] p 107.
The respondent in its submissions[20] acknowledges that the 15 September 2019 event is “more overtly recognisable” but in terms of the right shoulder allegation that is “consequential” submits that if there a consequential right shoulder aggravation, work was not the main contributing factor in accordance with section 4(b)(2). The difficulty with this submission, as the applicant observes, is that the requirements of sections 4 and 9A of the 1987 Act do not apply in respect to consequential conditions. Indeed, the proper test
is simply as a matter of common-sense: whether the right shoulder condition was caused and/or materially contributed to by the left shoulder condition as set out in Bates.[21][20] Respondent’s submissions at [13].
[21] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
There are a series of consultation records, reports and notations of right shoulder pain and complaints up to the applicant’s injury on 15 September 2019 and beyond it. For example, there is mention of a heavy workload experienced by the applicant in the week prior to 9 September 2019 which caused increased pain in the applicant’s shoulders as well as notes of Dr Howard on 5 September 2019 and the clinical notes of 9 August 2019.
Dr Sheehy in his report of September 2020 puts the matter as follows[22]: -
“GENERAL HISTORY This is provided in the body of the report.
CLINICAL HISTORY There have been injuries affecting both arms. The significant finding is a compression of the C6 nerve root on MR scan. There is no previous history prior to 2018.
EXAMINATION FINDINGS The significant findings on examination were limited shoulder movement more of the right shoulder than the left without other focal neurological deficit affecting the arms. She suffers from bilateral compression of the neural exit foramina, of the C6 nerves and has developed a bilateral capsulitis of the shoulders more on the right.CAUSATION 1. The relationship between any such injury and any work incidents recited in the history, employment duties or employment practices in which our client was engaged in her employment with Murrumbidgee Local Health District. Symptoms affecting the left arm commenced after lifting a large volume of fluid in preparation to feeding a patient on 2 March 2018. The symptoms affecting the right arm commenced in course of her work, however, it was only after a specific event in September 2019 when she was lifting a very heavy patient, the patient grabbed her arm with a severe pain radiating into the arm, forearm and affecting the thumb. She has been away from work since October 2019. She has, as a consequence of this, developed a capsulitis of both shoulders, the right more than the left”[22] Reply pp 230-231.
The opinion of Dr Sheehy, supported as it is by Dr Howard, supports that the applicant’s bilateral capsulitis of her shoulders firstly occurred due to both frank injuries (2 March 2018 and 15 September 2019). The genesis of these limited shoulder movements was bilateral compression of the neural exit foramina of C6 nerves, commencing after the first injury (2 March 2018) and then occurring in relation to the applicant’s right shoulder by 9 August 2019 in circumstances where the applicant was over-using her right arm. That is a view which this Commission finds factually credible.
It follows that the applicant has established that as a result of her injury on 2 March 2018 the applicant suffered a consequential condition to her right shoulder.
The injury of 15 September 2019
In his oral submissions Mr Loukas suggested that the respondent did not deny an incident happened on 15 September 2019 but does deny that the incident had the lasting effect which it had. The respondent suggested that the report of Dr Gehr[23] was a bare ipse dixit in that although it is concluded that both injuries relate to the applicant’s employment, there is no reasoning explained to support this assertion. Similarly, the respondent submitted that Dr Sheehy noted the applicant’s right arm pain commenced in the course of her work but there is no explanation concerning what particularly about the incident caused any ongoing injury.
[23] Application at p 72.
Dr Gehr in his report[24] notes a history that the applicant had no symptoms prior to the first incident. He also, however, notes the applicant’s complaints in relation to her symptoms occurring at work. Dr Sheehy also notes the MRI scans and in particular confirms the absence of any history in relation to the cervical spine. Dr Sheehy concluded that the applicant’s pathology had become dramatic following the incidents so that she was completely unfit for work.
[24] ibid p 76.
The frozen shoulder allegation
Dr Miniter has provided reports of 11 December 2019 and 5 February 2020. He concludes that the applicant has suffered “frozen shoulder syndrome” which he says studies have concluded is not associated with workplace events. Dr Miniter does not, however, provide detail of these studies, nor explain how this conclusion is arrived at. It is not clear from Dr Miniter’s reports whether such studies involved application of the scientific standard of proof rather than the balance of probabilities test. Additionally, Dr Miniter does not deal with the detailed history and refers to “minor” injury to the applicant’s right arm when her right arm was pulled on 15 September 2019.[25]
[25] Reply at p 220.
Dr Miniter does not mention the applicant’s cervical spine symptoms and then refers to case reports of bilateral shoulder problems due to diabetes. Again, however, no studies are produced. Whilst Dr Miniter asserts that rotator cuff tears are very common in persons of this age, no explanation for this conclusion is provided, nor any details of a reasoning process.
In his report of 11 December 2019 Dr Miniter was “not certain” of the connection between the applicant’s bilateral shoulder problems and the work events.[26] In his second report of 5 February 2020 he reports that the applicant has an autoimmune condition which has “likely caused” the problem. On the face of it, these two conclusions are irreconcilable.
[26] Ibid.
For the reasons just mentioned, I am not inclined to accept Dr Miniter’s opinion.
Report of Dr Fairhill and the cervical spine
The applicant’s general practitioner referred the applicant to Dr Fairhill who reported on 3 February 2021.[27] On 2 June 2020 the applicant’s general practitioner had noted ongoing right shoulder and neck pain and referred the applicant to a cervical spine MRI scan.[28] The MRI of 10 June 2020 demonstrated pathology at C5/6 sufficient for Dr Howard to report bilateral C6 compression sufficient for the neck to be investigated because of its potential responsibility for some of the symptoms and sufficient also to delay shoulder surgery.[29]
[27] Application at p 102.
[28] Ibid at p 120.
[29] pp 99-100.
Dr Fairhill reported that the applicant had a complex history. After outlining the two incidents he reviewed the MRI scan and noted a C5/6 disc protrusion and moderate stenosis.[30] Importantly, Dr Fairhill noted that it was quite common that co-existing shoulder injuries can “mask” cervical injuries and he concluded that C5/6 disc fusion was an appropriate course of treatment. By use of the term “mask” I interpret Dr Fairhill saying that the actual diagnosis can be misinterpreted, as occurred in this matter.
[30] p 102.
The request for approval for surgery is under hand of Dr Reddy.[31] The suggestion of cervical fusion comes not only from this treating surgeon but is confirmed by Dr Fairhill. Dr Miniter is the only medical practitioner who contradicts both causation and surgical treatment. He is also the only doctor who diagnoses a connection with diabetes and frozen shoulder syndrome being not caused by work, but he does so in a fashion devoid of reasoning and by reference to studies which are not referenced.
[31] p 22.
In the circumstances, I am satisfied that the applicant’s account of onset of symptoms and her consistent reports of pain and disability, coupled with the majority of the medical opinion, supports the applicant’s case concerning frank left and right shoulder and cervical spine injuries. Applying the criteria in Diab[32] it is clear from the majority of the medical opinion that the applicant should undergo the proposed surgery.
[32] Diab v NRMA Limited [2014] NSWWCCPD 72.
Findings
The applicant in the course of her employment with the respondent:
(a) on 2 March 2018 suffered frank personal injury to her left upper extremity (left shoulder) whilst lifting a bag of fluid and a consequential condition to her right shoulder.
(b) on 15 September 2019 suffered frank personal injury to her right upper extremity (right shoulder) whilst assisting a patient.
(c) suffered frank cervical spine injury which results from injuries both of 2 March 2018 and 15 September 2019.
The applicant’s employment with the respondent was a substantial contributing factor to the applicant’s injuries as identified in 39 (a) to (c) above.
The applicant suffered incapacity for work which results from her injuries and consequential condition within the meaning of section 33 of the 1987 Act.
Capacity and economic loss
The applicant’s capacity for work has not been extensively argued. It has been accepted that the applicant’s earnings per week so exceeded the statutory maximum that the latter should apply.
The award in relation to weekly payments is from 16 September 2019 to date and continuing pursuant to sections 36 and 37 of the 1987 Act at the maximum statutory rate. The respondent is to receive credit for weekly payments paid during this period.
Section 60
In terms of the proposed cervical spine surgery I declare the proposed surgery to be reasonably necessary pursuant to section 60(5) of the 1987 Act and order the respondent to pay the reasonable costs of, and incidental to, that surgery.
There will otherwise be a general order in favour of the applicant in respect of section 60 expenses.
Generally
Liberty is granted to either or both parties to apply should clarification of these orders be required.
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