Azer v Cumberland City Council
[2022] NSWPIC 53
•8 February 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Azer v Cumberland City Council [2022] NSWPIC 53 |
| APPLICANT: | Viola Azer |
| RESPONDENT: | Cumberland City Council |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 8 February 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation resulting from injury sustained to the right shoulder and consequential injury to the left shoulder, right elbow and injury in the nature of right carpal tunnel; alleged consequential injury to the left shoulder and right elbow placed in issue; level of permanent impairment resulting from injury in issue; Held – the applicant has sustained consequential injury to the left shoulder; award for the respondent in respect of the allegation of consequential injury to the right elbow; claim for permanent impairment compensation resulting from injury to the right shoulder and consequential injury to the left shoulder and injury in the nature of right carpal tunnel is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment. |
| DETERMINATIONS MADE: | 1. The applicant sustained consequential injury to her left shoulder resulting from the injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with the respondent. 2. Award for the respondent relevant to injury the applicant allegedly sustained to her right elbow resulting from the injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with the respondent. |
| ORDERS MADE: | 3. The applicant’s claim against the respondent for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury sustained to her right shoulder on 4 February 2016 in the course of her employment with the respondent, consequential injury to her left shoulder and consequential injury in the nature of right carpal tunnel, as agreed or determined by the Commission, is remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment. 4. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute and attached documents, and (b) Reply and attached documents. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Viola Azer (Ms Azer), was employed by the respondent, Cumberland City Council (Council). She worked as a ranger between July 2003 and March 2018, with her duties including the inspecting of construction sites and issuing fines for illegally parked vehicles, illegal dumping, overgrown vegetation and matters involving companion animals.
In these proceedings Ms Azer claims she sustained injury to her right shoulder on 4 February 2016 in the course of her employment with Council. She also alleges she has sustained consequential injury to her left shoulder and right elbow and injury in the nature of right carpal tunnel. Ms Azer claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 27% whole person impairment resulting from the injury she sustained to her right shoulder on 4 February 2016 and the alleged consequential injuries to her left shoulder, right elbow and injury in the nature of right carpal tunnel.
Ms Azer’s claim for permanent impairment compensation was declined, and a number of dispute notices have been issued to Ms Azer. Relevant to Ms Azer’s claim for permanent impairment compensation, notice dated 11 May 2021[1] was issued to Ms Azer in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998.
[1] Application to Resolve a Dispute (ARD) at page 28.
The injury Ms Azer sustained to her right shoulder on 4 February 2016 in the course of her employment with Council is not disputed and neither is her consequential injury in the nature of right carpal tunnel. The consequential injuries Ms Azer alleges she has sustained to her left shoulder and her right elbow are disputed.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Ms Azer has sustained consequential injury to her left shoulder resulting from the injury she sustained to her right shoulder on 4 February 2016;
(b) whether Ms Azer has sustained consequential injury to her right elbow resulting from the injury she sustained to her right shoulder on 4 February 2016, and
(c) the level of permanent impairment Ms Azer has sustained resulting from injury she sustained on 4 February 2016.
PROCEDURE BEFORE THE COMMISSION
Ms Azer’s claim for compensation came before me for teleconference on 19 October 2021. Ms Bathgate, solicitor, appeared for Ms Azer and Mr Franco, solicitor, appeared for Council. While Ms Azer was unable to be contacted and was not present during the teleconference, both Ms Bathgate and Mr Franco were content to proceed with the teleconference in her absence. At teleconference Mr Franco conceded Ms Azer’s alleged consequential injury in the nature of right carpal tunnel was not disputed.
With Ms Azer’s claim unresolved at teleconference, her claim came before me for conciliation/arbitration hearing on 11 November 2021. Mr Hickey of counsel appeared for Ms Azer, instructed by Ms Bathgate. Mr Saul of counsel appeared for Council, instructed by Mr Franco. Mr Payne, StateCover, was present. Ms Azer was present.
Due to administrative oversight, Mr Hickey was previously unaware that these proceedings were listed for conciliation/arbitration hearing before me that afternoon and when it became apparent that Ms Azer’s claim would not resolve during the conciliation phase of the listing, an application was made for an adjournment was made on behalf of Ms Azer which was opposed by Council. Both counsel made oral submissions and a copy of the recording of counsels’ submissions is available to the parties. Following consideration of counsels’ submissions I formed the view the interests of fairness and proper administration of justice favoured a granting of the adjournment sought by the applicant and the adjournment was granted accordingly.
The adjourned conciliation/arbitration hearing came before me on 30 November 2021. Mr Hickey appeared for Ms Azer, instructed by Ms Kaur, solicitor. Mr Saul appeared for Council, instructed by Mr Franco. Mr Payne was present. Ms Azer was present.
Following my discussions with counsel 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 that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Ms Azer’s statement
Ms Azer has provided a statement dated 23 February 2020[2]. She confirmed she was employed by Council between July 2003 and March 2018 as a ranger, with her duties including the inspection of construction sites the issuing fines for illegally parked vehicles, illegal dumping, overgrown vegetation and matters involving companion animals.
[2] ARD at page 4.
Ms Azer canvassed the circumstances of injury to her right shoulder on 4 February 2016, with diagnosis by her treating orthopaedic specialist, Dr Petchell, of a tear to her right shoulder and referral for physiotherapy treatment.
Ms Azer relevantly said of her return to work following the injury she sustained to her right injury:
“I returned to work on light duties and during this time I became quite concerned with protecting my right shoulder so as not to cause myself further pain or injury. As such, I became reliant upon my left arm and used it to perform almost all tasks.
Whilst on light duties, I would be required to investigate up to 20 complaints per day, regarding abandoned vehicles. I would also investigate up to 10 complaints concerning dogs barking. This meant that I would drive up to 4 hours per day, using my left arm only to control the steering wheel.
Furthermore, I would get in and out of the car throughout the day as I moved between jobs. As such, I would frequently have to reach diagonally across my body and above my head with my left arm in order to pull my seat belt across by body and fasten it.
Each time I would investigate a complaint, I would be required to retrieve and carry heavy equipment.
I would need to bring with me folders containing paperwork for each complaint as well as additional folders containing information on the investigation. Each type of complaint, for instance overgrown vegetation, illegal dumping and animal registration, had its own set of folders and therefore if I was travelling to investigate different types of complaints I would need to carry a number of folders with me. These folders were located above my desk, requiring me to reach up above my head, multiple times per day, with my left arm to pick up these folders. I would then carry these folders with my left arm to and from my car. At the end of the day, I would lift these folders above my head to return them to the overhead storage space above my desk.
In addition to these folders, I would need to carry a portable ticket machine and printer to be used when fining illegally parked cars. This weighed approximately 1 kilogram. If I were attending to a job involving animal registration, I would carry with me a scanner for checking a dog’s microchip. This weighed about half a kilogram. I would also carry with me a notepad as well as my handbag. This equipment together with my folders could weigh up to approximately 3 kilograms, depending on the jobs I was attending. This would put great pressure on my left arm and shoulders.
When attending an illegal dumping job, I would need to use my left hand and arm to move and search through the rubbish for anything that could identify the owner of the rubbish. I would then take with my (sic) any items that could easily be disposed of to the depot skip bin. The height of this bin was higher than the height of my shoulder and so I would have to use my left arm to throw the rubbish up over my head and into the bin.
By October 2016, my right shoulder symptoms had not improved and I began to experience pain in my left shoulder. The pain was so bad that I was regularly waking up throughout the night.”
Ms Azer explained she came to surgical treatment of her right arm on 17 February 2017 and said:
“in the three months following surgery, my right arm was immobilized in a cast and I relied heavily on my left arm to perform daily activities”.
Ms Azer said despite the surgery she continued to experience symptoms in her right shoulder and when she returned to her full time work duties in or about October 2017 she was still experiencing pain in her right shoulder, left shoulder and right wrist (the latter symptoms having developed in August 2017). Ms Azer was referred to Dr Deshpande for pain management, with little relief from nerve block injections into her right shoulder and hydrotherapy during 2019. She did however receive some relief from physiotherapy treatment and manages her pain with medication.
Relevant to the alleged injury to her right elbow, Ms Azer said:
“I also experience pain in my elbow and it has become quite painful to straighten my arm. My physiotherapist has advised me that this is referred pain from my shoulder”.
Treating medical evidence
Diagnostic imaging
An MRI report relevant to Mr Azer’s left shoulder dated 29 November 2016[3] noted “(L)eft shoulder pain and tenderness. Injury” in the clinical notes and an MRI report also relevant to her left shoulder dated 10 April 2019[4] also noted “(L)eft shoulder pain” in the clinical notes.
[3] ARD at page 125.
[4] ARD at page 133.
An ultrasound report relevant to Ms Azer’s right elbow dated 6 December 2019[5] noted “(R)ight elbow pain and tender over the common extensor tendon” and demonstrated “common extensor tendinosis confirmed in the area of interest”.
Dr Guirguis
[5] ARD at pages 133 and 137.
Dr Guirguis was Ms Azer’s treating general practitioner. He practised out of the United Care Medical Centre and the centre’s clinical records relevant to Ms Azer are before the Commission[6].
[6] ARD at page 143.
On 9 March 2016 in response to a questionnaire relevant to the injury Ms Azer sustained to her right shoulder on 4 February 2016[7] Dr Guirguis provided opinion Ms Azer was fit to return to work on suitable duties, which included no lifting of her right arm and no pushing/pulling with her right arm. At that time he anticipated “the expected timeframe for recovery” was dependent on medical management by Dr Petchell.
[7] ARD at page 141.
It is evident that during consultation in 2016 Mr Azer complained to Dr Guirguis that her right shoulder injury restricted her and her movements and when she presented on 17 October 2016 Dr Guirguis wrote:
“Lt shoulder pain as she compensate for the injured Rt one
3/52 medical cert. for the Lt shoulder”.On review on 19 October 2016 Dr Guirguis again noted Ms Azer’s complaint of left shoulder pain:
“Left shoulder pain for the last 2/52 and reported it to Dr Petchell on Monday
Overcompensation for the injured Rt Shoulder during work, as she can’t use Rt shoulder for work injury
Left shoulder pain”.
Relevant to alleged injury to her right elbow, on 10 July 2018 Dr Guirguis noted that in addition to her right shoulder pain Ms Azer also had right elbow pain and referred her for ultrasound. Subsequent certificates of capacity issued by Dr Guirguis provided diagnosis which include “common extensor tendinosis Rt Elbow”. Dr Guirguis appeared to consequentially link Ms Azer’s right elbow condition to the injury Ms Azer had sustained to her right shoulder and the consequential injury in the nature of right carpal tunnel.
Dr Petchell
As noted, Ms Azer came under the orthopaedic care of Dr Petchell for the injury she sustained to her right shoulder on 4 February 2016, and the first of his serial reports is dated 17 May 2016[8]. Ms Azer came to right shoulder surgery under the care of Dr Petchell on 17 February 2017, with Ms Azer continuing to complain of post-surgery symptoms in her right shoulder, right arm and right wrist.
[8] ARD at page 83.
Consistent with Ms Azer’s complaint of left shoulder pain to Dr Guirguis on 17 October 2016, in his report which is also dated 17 October 2016[9], Dr Petchell wrote:
“I saw Viola today, her right shoulder pain persists. Viola reports that two weeks ago she noted the onset of pain in her left shoulder which is localized to the lateral shoulder and is now more severe than in the right, currently rated at 9-10/10 in intensity. Her pain is sufficiently severe to wake her at night. Viola cannot recall a previous incident to account for her pain and attributes this to overuse with her limited ability to use her right arm. She has worked variably since I saw here last with periods off work due to increased levels of pain.
…Viola displays positive impingement signs in the left shoulder and it is likely she has a laterally down sloped type 2 acromion which would be constitutional. I explained that the concept of overuse was something which was a commonly reported symptoms with little in the way of published data in the literature. There is a paper which demonstrated an increased likelihood of cuff tear adjusted for age and sex in the contralateral shoulder, which would tend to support the concept of overuse. I therefore was happy to ascribe Viola’s left shoulder symptoms to overuse”.[9] ARD at page 84.
In Dr Petchell’s reporting there was no specific mention of the injury Ms Azer alleges she has sustained to her right elbow.
Dr Deshpande
As noted, Ms Azer came under the specialist care of Dr Deshpande who practised out of the Western Sydney Pain Clinic. In his initial report dated 11 July 2018[10], Dr Deshpande recorded the circumstances of Ms Azer’s right shoulder injury occurring on 4 February 2016 and noted her complaints which included post-surgical right shoulder pain and an increased difficulty in using her left shoulder and hand.
Jane Bradshaw
[10] ARD at page 99.
Ms Azer also came under the care of Ms Bradshaw for physiotherapy treatment at the Western Sydney Pain Clinic. In a report dated 19 October 2018[11] Ms Bradshaw also noted Ms Azer’s right shoulder pain had persisted post-surgery. She wrote:
“She underwent rotator cuff repair surgery for the right shoulder on February 17th, 2017. The pain persisted and then left shoulder pain started from overuse of the left arm, as a consequence of the right shoulder injury”.
Independent medical evidence
Dr Hitchen
[11] ARD at page 104.
Ms Azer was orthopaedically assessed by Dr Hitchen on 29 September 2016, 8 December 2016 and 19 February 2020. Dr Hitchen provided a number of reports, dated 29 September 2016[12], 8 December 2016[13], 10 January 2017[14] and 21 February 2020[15].
[12] Reply at page 19.
[13] Reply at page 23.
[14] Reply at page 26.
[15] Reply at page 27.
At the time of initial assessment following the injury Ms Azer sustained to her right shoulder on 4 February 2016, Dr Hitchen noted Ms Azer was undertaking suitable duties “to avoid any lifting or pushing and pulling with her right arm”. He reported:
“She can undertake a number of tasks, for example inspecting illegal dumping or abandoned cars or writing parking tickets. She states she is working her normal hours, except avoiding overtime”.
There is no reference in Dr Hitchen’s report following this assessment, of complaint by Ms Azer of any problem with her left shoulder or right elbow.
At the time of assessment on 8 December 2016 Dr Hitchen reported Ms Azer confirmed that while she had not been suffering any left shoulder symptoms “whatsoever” at the time of initial assessment, she explained “in mid October 2016, she awoke one morning with pain in her left shoulder” with Dr Petchell suggesting “she had been overusing her arm and compensating thereby inducing symptoms”. On this occasion Ms Azer said her left shoulder was now more painful than her right shoulder. Following review of the MRI left shoulder referred above and clinical examination Dr Hitchen provided diagnosis in terms of a frozen shoulder, which he said was “a constitutional condition that would have occurred at the same time in her life” and was “not due to favouring”. There is no reference in Dr Hitchen’s report following this assessment, of complaint by Ms Azer of any problem with her right elbow.
When Dr Hitchen more recently assessed Ms Azer on 19 February 2020 she complained of “a constant ache in the left shoulder from the neck to the shoulder up into the axilla and down the arm”. Following review of the diagnostic imaging made available to him, which included post-surgical imaging of her right shoulder, Dr Hitchen relevantly confirmed his earlier diagnosis of a left frozen shoulder, which he said was “constitutional in basis and spontaneous in onset. It has since resolved”. in response to specific questioning as to whether Ms Azer had suffered a consequential left shoulder injury as a result of the right shoulder injury she sustained on 4 February 2016, Dr Hitchen made reference to “Evidence Based Medicine” and the AMA Guides to the Evaluation of Disease and Injury Causation, Second Edition which reportedly concluded relevant to the concept of “favouring”:
“In summary, the articles reviewed do not accept favouring as a reasonable cause for development of symptoms in the contralateral shoulder. Rotator cuff lesions are seen with aging and are often asymptomatic. Typically, activity is beneficial, not detrimental. Although workplace risk factors may contribute to shoulder symptoms as outlined in this book, it appears most shoulder conditions develop at a similar rate. In most cases favouring is not a probable cause of shoulder pathology. Thus, even if symptoms in the second limb develop after symptoms are present in the first limb (a temporal relationship), there is no scientific support for the concept that having symptoms in the first limb causes an increased risk of disease in the second limb”.
Like before, there is no reference in Dr Hitchen’s report following this assessment, of complaint by Ms Azer of any problem with her right elbow.
Dr Stephenson
Ms Azer was orthopaedically assessed by Dr Stephenson on 28 November 2017. Dr Stephenson provided a report dated the same day[16]. While Dr Stephenson’s report appeared predominantly to canvass injury in the nature of carpal tunnel syndrome, Dr Stephenson relevantly reported Ms Azer presented with complaint that included:
“Since 2016 because of over-using the left upper extremity she developed some discomfort of the left shoulder with a subsequent diagnosis of a frozen shoulder, left shoulder, which appears now to have resolved as she has on examination a full range of motion of the left shoulder”.
A/Professor Hope
[16] ARD at page 73.
A/Professor Hope has provided a number of reports following orthopaedic assessment of Ms Azer. His reports are dated 24 April 2018[17], 25 October 2019[18] and 4 May 2020[19].
[17] ARD at page 41.
[18] ARD at page 47.
[19] ARD at page 54.
Following his initial orthopaedic assessment of Ms Azer, A/Professor Hope relevantly reported that during “right shoulder preoperative and postoperative period, the left shoulder was overused resulting in left shoulder symptoms”. While he noted Ms Azer initially experienced left shoulder symptoms in October 2016, he described her symptoms as worsening “substantially” after surgical treatment to her right shoulder.
Following clinical examination and review of the diagnostic imaging made available to him on this occasion A/Professor Hope provided diagnosis of left shoulder impingement, which he accepted was consequential to her right shoulder injury. While A/Professor Hope noted Dr Hitchen’s reports of 8 December 2016 and 10 January 2017 with particular reference to his diagnosis of frozen shoulder which he said was not work-related, A/Professor Hope said:
“However, today’s assessment indicated that the diagnosis was impingement (subacromial bursitis) as indicated by the history of injury, pain profile, mechanical symptoms profile, functional profile, examination findings and MRI scan result.
Dr Hitchen also indicates that this is an idiopathic condition and is not work-related.
This is at odds with the clear facts that the left upper limb was overused during both the preoperative phase of the right shoulder injury and the postoperative phase (where the right shoulder was immobilised completely for 3 months).
In this case, there is no option but to use the left upper limb for tasks that were normally undertaken by the right upper limb.
Therefore, the left upper limb condition is a consequential result of the right upper limb work-related injury”.
There is no reference in A/Professor Hope’s report following this assessment, of complaint by Ms Azer of any problem with her right elbow.
Following his re-assessment of Ms Azer, A/Professor Hope relevantly confirmed diagnosis of left shoulder impingement and opinion the injury Ms Azer had sustained to her left shoulder was consequential on the injury she had sustained to her right shoulder. He reasoned:
“The left shoulder condition is secondary to the consequential injury to the right shoulder on 4 February 2016. The left shoulder was previously symptom-free. The right shoulder was clearly injured at work on 4 February 2016. This defunctions the right shoulder requiring preferential overuse of the left shoulder. This occurred both due to the initial injury and also to the postoperative right shoulder immobilisation for several months where there is no option but to overuse the left shoulder”.
A/Professor Hope’s assessment of permanent impairment resulting from Ms Azer’s bilateral shoulder injury included assessment of 10% whole person impairment resulting from her left shoulder injury. There is no reference in A/Professor Hope’s report following his re-assessment of Ms Azer, of complaint of any problem with her right elbow.
In his subsequent supplementary report A/Professor Hope provided comment on Dr Hitchen’s report dated 21 February 2020. Relevant to Dr Hitchen’s quibble with the concept of “favouring” A/Professor Hope said:
“Dr Hitchen indicates that the scientific literature reveals that there is no support for the supposition that one limb injury causes an increased risk of disease in the second limb.
This contrasts the clear observation in clinical practice that immobilisation of one limb inevitably results in the overuse of the opposite limb.
Your client had a massive rotator cuff tear repaired. This requires almost complete immobilisation of the limb for a period of at least 4 weeks and usually 6-8 weeks in older people with poorer tissue. During this period the opposite limb is used for all activities of daily living which equates to double the workload. Twice the workload means twice the risk of injury which has occurred in this case.
Opposite limb overload is frequently found after rotator cuff surgery and very often found with lower limb surgery as well.
The scientific literature may refute or support any particular position.
The scientific literature should not be a substitute for common sense”.
A/Professor Gumley
Ms Azer was assessed by A/Professor Gumley on 14 May 2020 and he provided a number of reports, dated 28 May 2020[20], 23 September 2020[21], 29 October 2020[22] and 7 September 2021[23]. A/Professor Gumley is a hand surgeon and his reports relevantly address the Ms Azer’s right elbow injury. It is evident from his last supplementary report that A/Professor Gumley had been provided with the opportunity to review Dr Machart’s opinion (discussed below).
[20] ARD at page 58.
[21] ARD at page 65.
[22] ARD at page 67.
[23] ARD at page 71.
A/Professor Gumley relevantly noted Ms Azer developed lateral right elbow pain in or about October 2019. He noted on clinical examination:
“In her right elbow region, she notes a nominal degree of discomfort over the radial tunnel but marked tenderness around the lateral epicondyle and extensor origin”.
Following clinical examination and review of the diagnostic imaging referred, A/Professor Gumley provided diagnosis of right lateral epicondylitis, which he said had not improved despite physiotherapy treatment. When asked specifically as to whether the injury Ms Azer had sustained to her right elbow was consequential on either her right shoulder injury or her injury in the nature of carpal tunnel syndrome, while A/Professor Gumley did not initially appear to provide a response, he confirmed in a subsequent supplementary report that the right lateral epicondylitis Ms Azer suffered was “causally related to her injury on 4 February 2016”. A/Professor Gumley provided assessment of 2% upper extremity permanent impairment resulting from Ms Azer’s injury in the nature of right lateral epicondylitis.
Dr Machart
Ms Azer was orthopaedically assessed by Dr Machart on 31 March 2021. His report was dated 15 April 2021[24]. Ms Azer reportedly presented at assessment with complaint that included pain and stiffness in both shoulders and pain in the right elbow “predominantly on the right side”. Dr Machart reported Ms Azer told him she had developed pain in her left shoulder around August 2016 “because she was using the left arm excessively protecting the painful right shoulder from activities such as cooking and showering”. He also reported a past history of right elbow pain, about which he noted:
“Started in 2020. No precipitant event. Had injection laterally for what presumed to be lateral epicondylitis”.
[24] ARD at page 35.
Following clinical examination and review of the medical information provided to him, relevant to the injuries Ms Azer has sustained to her left shoulder Dr Machart provided diagnosis of shoulder impingement. Relevant to this injury Dr Machart said:
“I did not find relationship to the right shoulder symptoms. None of the eminent doctors who reported overuse analysed the specific duties that may have constituted overuse. I may point out that literature does not support the concept of overuse. The best article on this is meta-analysis published by the American Orthopaedic Association on the subject of causation. While I do not accept published literature as absolute, I look at specific task that may constitute overuse. Being in a sling for a week, not at work, and exposed to less physical activities does not constitute overuse. Day-to-day activities are not overuse. Going to the gym and lifting weights may be overuse. Well-functioning shoulder should be able to do a lot more than the limited duties that she was doing postoperatively for 6 weeks while she was in a sling”.
Relevant to the injury Ms Azer sustained to her right elbow, while Dr Machart accepted there “may be an element of lateral epicondylitis” he said “I did not see relationship to the right shoulder injury”.
Milazzo Physical Therapy Pty Ltd
Ms Azer was assessed by Gaetano Milazzo on 12 February 2018 in his capacity as independent physiotherapy consultant. Mr Milazzo’s report was dated 24 February 2018[25]. Mr Milazzo relevantly reported Ms Azer had said that following injury to her right shoulder on 4 February 2016 she subsequently developed left shoulder pain “due to protecting the right arm”.
[25] Reply at page 48.
There is no reference in Mr Milazzo’s report following this assessment, of complaint by Ms Azer of any problem with her right elbow.
Submissions
Mr Hickey and Mr Saul made oral submissions, which I have considered. I am grateful to Mr Hickey and Mr Saul for the assistance provided to me in this particular matter. A recording of counsels’ submissions is available to the parties.
Determination
Liability is not disputed for the injury Ms Azer sustained to her right shoulder on 4 February 2016 in the course of her employment with Council and neither is liability disputed for the consequential injury she sustained in the nature of right carpal tunnel. However, liability is disputed for the consequential injury Ms Azer alleges she has sustained to her left shoulder and her right elbow.
Ms Azer has the onus of proving she sustained consequential injury to her left shoulder and/or her right elbow as result of the injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with Council. This is a question of fact in this matter and consideration of Ms Azer’s evidence and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[26] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712”.
[26] [2008] NSWCA 246.
With allegation by Ms Azer that the injury she has sustained to her left shoulder and right elbow are in the nature of a consequential injury, in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan[27] Deputy President Snell relevantly discussed consequential injury, and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012]. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within section 4 of the 1987 Act”.
[27] [2016] NSWWCCPD23.
In the circumstances of this matter it is important to recognise the injury Ms Azer sustained to his right shoulder in the course of her employment with Council may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential injury to the left shoulder and/or right elbow. In Kooragang Cement Pty Ltd v Bates[28], Kirby J said:
“The result of the cases is that each case where causation is in 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. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[28] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Consequential injury to left shoulder
It is evident Ms Azer has been significantly troubled by her right shoulder since she sustained injury on 4 February 2016 in the course of her employment with Council. Ms Azer sustained what has been described by A/Professor Hope as a “massive” rotator tear which ultimately came to surgical repair under the care of Dr Petchell on 17 February 2017, with Ms Azer continuing to complain of post-surgical symptoms in her right shoulder, right arm and right wrist.
Ms Azer said that on her return to suitable duties following the injury she sustained to her right shoulder she became reliant on her left arm and by October 2016, with no improvement in her right shoulder symptoms, she began to experience symptoms in her left shoulder. She described in detail the duties required of her on her return to suitable duties. Dr Guirguis’ clinical records accord with Ms Azer’s complaint of left shoulder symptoms in the context of ongoing right shoulder symptoms, as does the reporting of Dr Petchell on 17 October 2016, Dr Deshpande on 11 July 2018 and Ms Bradshaw on 19 October 2018. While Dr Deshpande provided no opinion as to reason why Ms Azer began to experience symptoms in her left shoulder, Dr Guirguis, Dr Petchell and Ms Bradshaw accepted connection between Ms Azer’s ongoing right shoulder symptoms and the onset of her left shoulder symptoms.
Over time, Ms Azer has been orthopaedically assessed by a number of independent medical examiners and while both Dr Hitchen and Dr Stephenson accepted diagnosis of injury in the nature of a left frozen shoulder, A/Professor Hope and Dr Machart provided diagnosis of left shoulder impingement. All four independent medical examiners noted an onset of left shoulder symptoms in the context of ongoing right shoulder symptoms (including post operatively). While Dr Stephenson provided no comment as to the cause of the symptoms Ms Azer experienced in her left shoulder and Dr Hitchen and Dr Machart failed to accept connection between Ms Azer’s ongoing right shoulder symptoms and the onset of her left shoulder symptoms, A/Professor accepted such connection.
I am of the view Ms Azer has provided a credible history of the onset of her left shoulder symptoms in or about October 2016 in the context of ongoing right shoulder symptoms following injury sustained on 4 February 2016. Dr Azer’s treating general practitioner, Dr Guirguis, and her treating orthopaedic surgeon Dr Petchell, both of who have been closely involved in Ms Azer’s treatment following the injury she sustained to her right shoulder on 4 February 2016, have expressed opinion the injury Ms Azer sustained to her left shoulder is due to overcompensation of her right shoulder injury and her subsequent surgical treatment under the care of Dr Petchell. Ms Azer also enjoys the support of the independent medical examiner A/Professor Hope. While Dr Hitchen and Dr Machart do not share A/Professor Hope’s opinion as the cause of Ms Azer’s left shoulder injury, I am entitled to rely upon common sense in evaluating questions of causation[29] and I prefer the opinion of A/Professor Hope, particularly so in circumstances where his opinion is the same as that offered by both Ms Azer’s treating doctors, Dr Petchell and Dr Guirguis.
[29] Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720.
I accept Ms Azer has discharged the onus of proof required of her and I am satisfied Ms Azer has sustained consequential injury to her left shoulder.
Consequential injury to right elbow
Of significance is the lack of any complaint by Ms Azer about her right elbow until 10 July 2018 when she consulted with Dr Guirguis. Although Ms Azer said her physiotherapist had told her that the pain she experienced in her elbow was “referred pain from her shoulder” there was no mention in Ms Bradshaw’s reporting of complaint by Ms Azer about a problem with her right elbow. Neither was there mention in Dr Petchell’s reporting or Dr Deshpande’s reporting of complaint by Ms Azer about a problem with her right elbow, despite Ms Azer being under their care after the she complained to Dr Guirguis about her right elbow pain.
Similarly, Dr Hitchen recorded no complaint by Ms Azer about a problem with her right elbow when he assessed Ms Azer on 19 February 2020 and A/Professor Hope recorded no complaint by Ms Azer about a problem with her right elbow when he assessed Ms Azer on 25 October 2019 and 4 May 2020. While A/Professor Gumley noted at assessment on 14 May 2020 Ms Azer suffered “a nominal degree of discomfort” in her right elbow and provided diagnosis of right lateral epicondylitis, he reported development of symptoms in or about October 2019, which does not accord with Dr Guirguis’ clinical notes and referral for ultrasound on 10 July 2018. While Dr Machart accepted at assessment on 31 March 2021 “there may be an element of lateral epicondylitis”, he reported development of symptoms in 2020, which also does not accord with Dr Guirguis' clinical notes and referral for ultrasound on 10 July 2018. Dr Machart said he did not see a connection between Ms Azer’s right elbow injury and her right shoulder injury and while following review of Dr Machart’s opinion A/Professor Gumley provided opinion Ms Azer’s right elbow injury was “causally related to her injury on 4 February 2016” it does not appear to me that A/Professor Gumley provided the required proper and cogent reasons for the opinion he formed[30].
[30] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
Noting the lack of complaint by Ms Azer about her right elbow symptoms for over two years after she sustained injury to her right shoulder on 4 February 2016, the inconsistent history of the onset of symptoms in her right elbow provided to both A/Professor Gumley and Dr Machart, and the lack of reasoning provided by A/Professor Gumley to support the opinion he has provided relevant to the cause of Ms Azer’s right elbow injury, I do not accept Ms Azer has discharged the onus of proof required of her and I am not satisfied she has sustained consequential injury to her right elbow as a result of the injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with Council.
Permanent impairment
Liability is not disputed for the injury Ms Azer sustained to her right shoulder on 4 February 2016 in the course of her employment with Council and neither is liability disputed for consequential injury in the nature of right carpal tunnel.
While I have determined Ms Azer has not sustained consequential injury to her right elbow resulting from the injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with Council, I have determined she has sustained consequential injury to her left shoulder resulting from the injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with Council. It is appropriate Ms Azer’s claim against Council for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with Council, consequential injury to her left shoulder and consequential injury in the nature of right carpal tunnel be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
I consider it appropriate that the following documents be forwarded to the Medical Assessor:
(a)ARD and attached documents, and
(b)Reply and attached documents.
SUMMARY
It is not disputed Ms Azer sustained injury to her right shoulder on 4 February 2016 in the course of her employment with Council and neither is it disputed she has consequential injury in the nature of right carpal tunnel in the course of her employment with Council. I accept Ms Azer has sustained consequential injury to her left shoulder resulting from the injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with Council. I do not accept Ms Azer has sustained consequential injury to her right elbow resulting from the injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with Council.
Ms Azer’s claim against Council for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury she sustained to her right shoulder on 4 February 2016 in the course of her employment with Council, consequential injury to her left shoulder and consequential injury in the nature of right carpal tunnel is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
The following documents are to be forwarded to the Medical Assessor:
(a) ARD and attached documents, and
(b) Reply and attached documents.
0
7
0