Bell v Baptistcare NSW & Act

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Bell v Baptistcare NSW & ACT [2022] NSWPIC 420
APPLICANT:	Eunice Bell
RESPONDENT:	Baptistcare NSW & ACT
MEMBER:	Rachel Homan
DATE OF DECISION:	28 July 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and section 60 of the Workers Compensation Act 1987 expenses for left shoulder and cervical spine injury due to nature and conditions of employment; applicant employed as an assistant aged care nurse for 20 years; gradual onset of symptoms; main contributing factor; whether applicant’s evidence capable of discharging evidentiary onus; extent of incapacity; Held — applicant sustained injuries as alleged; no suitable employment having regard to nature of incapacity, age, education, skills and experience; awards in favour of the applicant for weekly compensation and medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant sustained injury to her left shoulder and cervical spine as a result of the nature and conditions of her employment with the respondent pursuant to s 4(b) of the Workers Compensation Act 1987. 2. The applicant has from 23 October 2020 to date and continuing, had no current work capacity as a result of her injury. The Commission orders: 1. The respondent to pay the applicant’s reasonably necessary medical and related treatment expenses in accordance with s 60 of the Workers Compensation Act 1987 upon production of accounts, receipts and/or Medicare Notice of Charge. 2. The respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the Workers Compensation Act 1987 from 23 October 2020 to date and continuing, based on the agreed pre-injury average weekly earnings rate of $1,213.21, as periodically indexed. 3. The order for weekly compensation above is subject to the operation of s 50 of the Workers Compensation Act 1987 insofar as the applicant was in receipt of sick leave during the relevant period.

STATEMENT OF REASONS

BACKGROUND

Ms Eunice Bell (the applicant) was employed by Baptistcare NSW & ACT (the respondent) as an Assistant in Nursing. The applicant claims that, as a result of the nature and conditions of her employment with the respondent, she sustained injuries to a number of body parts.
On 8 February 2021, the applicant reported an injury to her left arm and shoulder and cervical spine. Liability for the injury was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 25 May 2021.
On 6 October 2021, the applicant, through her solicitors, made a claim for weekly benefits and compensation pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) for a left shoulder arthroscopy and rotator cuff repair as recommended by orthopaedic surgeon, Dr Matthew Howard.
On 18 February 2022, the applicant notified the insurer that she had sustained injuy to both shoulders, the cervical spine, both knees and left hip as well as a secondary psychological condition. The claim for weekly benefits and s 60 expenses was maintained.
Liability for injury to all body parts was disputed in a further notice issued pursuant to s 78 of the 1998 Act on 15 March 2022. The insurer also disputed the applicant’s entitlement to weekly benefits and s 60 expenses and determined that the applicant was barred from recovering compensation pursuant to ss 254 and 261 of the 1998 Act.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 27 April 2022. The applicant sought weekly benefits from 25 May 2021 to date and continuing and compensation pursuant to s 60 of the 1987 Act for incurred expenses including, the costs of and incidental to a left shoulder arthroscopy and rotator cuff repair performed by Dr Howard.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 18 July 2022, conducted by Microsoft Teams. The applicant was represented by Mr Luke Morgan, of counsel, instructed by Mr Nayven Taouk. The respondent was represented by Mr Ross Hanrahan of counsel, instructed by Mr Dennis Kim. A representative from the insurer was also present.
During the conciliation conference, leave was granted to the applicant to amend the ARD to claim weekly compensation from 23 October 2020 based on a pre-injury average weekly earnings (PIAWE) rate of $1,213.21. The PIAWE rate was agreed. The parties also agreed that no weekly benefits had been paid to date and so the claim commenced in the first entitlement period pursuant to s 36 of the 1987 Act.
The applicant withdrew her reliance on all injuries and conditions other than the left shoulder and cervical spine, for the purpose of these proceedings only.
The applicant also indicated that a general order was sought in relation to the claim for s 60 expenses.
The respondent indicated that, in the circumstances, the dispute in relation to ss 254 and 261 of the 1998 Act was not pressed.
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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her left shoulder and cervical spine due to the nature and conditions of her employment with the respondent pursuant to s 4 of the 1987 Act;
(b) the extent and quantification of incapacity resulting from injury, and
(c) the entitlement to s 60 expenses as claimed.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(d)    ARD and attached documents;
(e)    Reply and attached documents;
(f)    documents attached to an Application to Admit Late Documents lodged by the applicant on 12 July 2022;
(g)    documents attached to an Application to Admit Late Documents lodged by the respondent on 12 July 2022, and
(h)    documents attached to an Application to Admit Late Documents lodged by the applicant on 13 July 2022.
Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in four written statements, dated 27 March 2021, 11 January 2022, 21 April 2022 and 13 July 2022.
The applicant’s first statement was prepared by an investigator procured by the insurer.
The applicant stated that she was born in 1960 and arrived in Australia from Fiji in 2002. The applicant worked in two other nursing homes in Sydney prior to commencing employment with the respondent as a nursing assistant.
The applicant’s duties included caring for aged residents, making beds, washing and feeding residents, personal-care duties and moving residents. The applicant worked 54 hours per fortnight on a rotating roster.
On 20 October 2020, the applicant was working on an afternoon shift. After finishing work, the applicant went home and had a shower and started feeling pain to her left shoulder near the shoulder blade. The applicant found it difficult to move her arm and felt pain when she lifted the left arm. The applicant went to bed and woke up with worse pain. The applicant went to her local chemist who recommended the applicant go to the hospital as she was experiencing pain at her chest, left shoulder and upper arm.
The applicant was driven to Wagga Base Hospital Emergency Department where she was given painkillers and underwent blood tests and a CT scan. The hospital confirmed that the applicant had no heart problems but she was diagnosed with a compressed nerve to the left shoulder. The applicant was referred for a cortisone injection, which she underwent the next day.
The applicant’s pain remained the same so she went to see her general practitioner at Forest Hill Medical Centre. The applicant was prescribed with painkillers and anti-inflammatory medication. The applicant was also provided with some light, home exercises and stretching exercises for her left shoulder.
The applicant was referred to see a physiotherapist and eventually to specialist, Dr Matthew Howard. Dr Howard had recommended surgery but there was a 12 month waiting list. The applicant said she was unfit to return to work.
In her second statement, the applicant stated that her duties for the employer involved:
“a.     general patient care,
b.      putting patients to bed,
c.      assisting patents on and off toilets, into chairs,
d.      showering patients,
e.      lifting patients from their beds,
f.      feeding patients.”
The applicant said that despite suffering from pain and symptoms in numerous body parts over the years, she endured the difficulties and continued working. The applicant considered herself to be a hard worker and she wanted to continue earning an income. The applicant was unaware that she was able to make a workers compensation claim and receive entitlements until she spoke to a lawyer in 2021.
The applicant noted that she had complained of pain in her left shoulder in around 2014 due to the repetitive nature of her employment, and specifically lifting and twisting of her upper extremities. The pain developed gradually. The applicant underwent an ultrasound scan of her left shoulder on 8 July 2014. The applicant received a cortisone injection and local anaesthetic which provided relief.
The applicant continued to experience pain and symptoms in her shoulder on and off between 2014 and 2020. The applicant recalled complaining of her shoulder symptoms due to undertaking employment duties in about 2017. The applicant’s symptoms became severe in about 2020.
The applicant underwent an ultrasound scan of both shoulders in March 2020, which revealed a full thickness tear of the supraspinatus in the left shoulder.
The applicant saw Dr Howard again on 1 April 2021 and he again recommended surgery. As the applicant had a lot of confidence in Dr Howard’s advice she decided to undergo the procedure. The applicant was put on a public waiting list and the surgery was eventually performed on 7 November 2021 at Wagga Wagga Base Hospital.
The applicant continued to undertake physiotherapy and take pain medication.
The applicant consulted Dr Jacob Fairhall in relation to her neck symptoms. The applicant underwent an MRI on 10 February 2021. The applicant returned to see Dr Fairhall on 31 March 2021 and he supported the surgery proposed by Dr Howard for the applicant’s left shoulder. Dr Fairhall also discussed the possibility of the applicant undergoing an anterior cervical discectomy and fusion. The applicant continued to experience difficulties in her neck.
The applicant described her disabilities including, difficulty sleeping, difficulties in changing clothes and undertaking self hygiene tasks. The applicant also described difficulties undertaking her domestic duties and prolonged periods of walking.
The applicant said that following the left shoulder surgery, her condition had somewhat improved. The applicant did, however, continue to experience pain and limitations in the left shoulder. The applicant was certain that she was unable to perform her pre-injury duties and continued to feel fatigued and exhausted. The applicant’s neck symptoms continued.
In her statement, dated 21 April 2022, the applicant described her employment duties in more detail:
“I was required to perform repetitive bending, kneeling and lifting. For example, when transferring patients to and from their beds, chairs, toilets, and showers, I was required to use a mechanical lifter.
More specifically, I was required to lift and position the patient into the sling of the lifter and use the mechanical lifter to transfer them. When undertaking this, I would be required to bear the weight of the patient and as such, strain would be placed upon my knees, shoulders, hips, and neck.
Furthermore, there were times when it was especially difficult to lift and position a patient’s lower limbs into the sling. This was usually the case when a patient’s limbs were stiff or if they were overweight. During these times, I would be required to use more force and as such, more strain would be placed on my knees, shoulders, hips, and neck.
…
When showering patients, I would be required to undress and wash the patients. In order to undertake this, I would be required to perform repetitive kneeling, bending and manoeuvring of the patient’s body parts. As a result, this would placed incredible strain on my body parts to ensure that the patients were cleaned.
Dressing the patient would also be incredibly difficult when patients were stiff and/or overweight.
As a result of the above, I would often feel pain and fatigue after work.”

Ms Noble

The respondent relies on a written statement prepared by Ms Melissa Noble, dated 7 April 2021. Ms Noble identified herself as a residential manager for the respondent. Ms Noble said she was first made aware of the applicant’s claim for a work-related injury whilst the applicant was on sick leave. The applicant had been off work for approximately three months.
Ms Noble contacted the applicant to find out what was going on sometime before Christmas 2020. The applicant said she needed to have surgery for a shoulder injury. The applicant mentioned that she did not know how she hurt her shoulder.
Ms Noble said there was no report of any incident prior to the applicant going off sick and lodging a claim. All staff were trained in reporting incidents and the procedure was reiterated in regular staff meetings.
Ms Noble said she met with the applicant on 4 February 2021 to discuss her situation with a Human Resources consultant, Emma Chalker. The applicant indicated in that meeting that she was not sure whether her shoulder injury was work-related. The applicant said there was no particular incident at work which had caused the injury.

Ms Chalker

Handwritten notes of a meeting between the applicant, her husband, Ms Noble and Emma Chalker on 4 February 2021 are attached to the Reply. The applicant was noted to have been absent for more than three months. The applicant described a compressed nerve in her cervical spine and a rotator cuff tear. The applicant was seeing Dr Howard in relation to the rotator cuff tear and Dr Fairhall in relation to her neck. The applicant thought she had pulled a muscle and attended the Emergency Department.
Ms Chalker recorded that she asked the applicant if she thought the conditions were related to the workplace. The applicant was noted to have responded, “not sure”.
Ms Chalker asked the applicant if her specialists thought she had workplace injury. The applicant was noted to have responded “not sure, not sure how it occurred”.

Clinical notes

A triage form prepared at Wagga Wagga Base Hospital on 23 October 2020 noted:
“L) sided chest pain since 0300hrs this morning Intermittent in nature
Radiating through to arm & back
Unwell last week with flu & fever Increasing & worsening tonight
Worse on inspiration.
Coughing up blood.”
Progress notes from the hospital recorded:
“Woke this morning at 4am with left sided sharp chest pain radiates through to back and left shoulder.”
A discharge summary recorded on 23 October 2020 recorded:
“Eunice came to ed with left sided scapula pain for 3 days, radiating to left arm and neck, worse with cough and inspiration.”
Clinical records from Forest Hill Medical Centre are in evidence. An entry recorded on 1 July 2014 noted left shoulder pain and hypertension. The applicant was referred for an ultrasound of the left shoulder with the possibility of a rotator cuff tear queried.
A clinical record dated 21 July 2014 noted there were calcifications in the subscapularis tendon. The applicant was referred for an ultrasound guided steroid injection of the left shoulder. On 31 July 2014, it was noted that the applicant had good results with the steroid injection.
Shoulder pain was again noted on 1 October 2014, and a further ultrasound of the left shoulder requested. The results of the ultrasound were given on 24 October 2014 and the applicant given an orthopaedic referral to Dr Matthew Howard.
On 10 April 2018, the applicant reported, bilateral shoulder pain and pain when combing her hair.
Bilateral shoulder pain and limited elevation were reported to the applicant’s general practitioner on 2 June 2020 and 6 July 2020. X-rays and ultrasounds of the shoulder were requested.
A clinical record dated 10 July 2020 noted that the results of the investigations were discussed. The applicant had bilateral rotator cuff tears and was referred to a physiotherapist and orthopaedic surgeon, Dr Matthew Howard.
On 26 October 2020, it was noted that the applicant had presented to the Emergency Department with neck pain and left radiculopathy. A CT scan was done and revealed C7 nerve root compression on the left. The applicant was referred to a neurosurgeon, Dr Michael Ow-Yang. The applicant was referred for a CT scan guided C6/7 facet joint steroid injection.
On 4 November 2020, it was noted that the applicant’s pain was slightly improving following the injection.
On 9 November 2020, the applicant was noted to be having physiotherapy twice weekly and experiencing a gradual improvement of her neck pain.
On 25 November 2020, it was noted that the applicant had seen Dr Howard and would undergo an MRI. The applicant was still in pain and her Palexia dose was increased.
Left shoulder pain was recorded in a consultation on 4 November 2020 and, on 16 December 2020,it was noted that the applicant’s neck pain symptoms were being controlled on her current medication dose.
On 1 February 2021, the applicant was seen in relation to left shoulder pain, including rotator cuff tear. The applicant was on a waiting list to see a specialist and it was noted that she may need to start Lyrica. Shoulder pain and sleep disturbance were noted on 8 February 2021.
The results of an MRI of the cervical spine (cervical radiculopathy) were to the applicant at a consultation on 15 February 2021. The applicant was referred to see a neurosurgeon.
On 6 May 2021, it was noted that the applicant was waiting for approval for a left shoulder arthroscopy.
On 7 June 2021, it was noted that the applicant had an independent assessment and her work claim was closed. The applicant was not able to afford to see a lawyer and would apply for income protection.
Ongoing shoulder and neck symptoms were recorded in consultations with the applicant’s general practitioner in July 2021.

Certificates of capacity

The applicant has provided SIRA certificates of capacity dating from 8 February 2021 onwards.
In the first certificate of capacity, the applicant’s general practitioner, Dr Ali Elmosallamy, noted that the applicant had first been seen in relation to the injury on 26 October 2020. The injury was described as a rotator cuff injury in the left shoulder, cervical spine injury and severe left arm pain. The injury was said to be related to work as follows:
“…the injury is related to lifting, moving residents during daily activity with aged-care duties.”
The applicant was certified as having no current capacity for any work until 9 April 2021. Asked to estimate the time to return to any type of employment, Dr Elmosallamy responded,
“No estimated time is clear, injury is permanent.”
The applicant has continued to be certified as having no current capacity for any work.

Dr Howard

Orthopaedic surgeon, Dr Matthew Howard provided a report for the applicant’s solicitors on 4 November 2021.
Dr Howard said he first saw the applicant on 23 November 2020 when she was 60 years old. Dr Howard was aware that the applicant worked in aged care and was involved in direct patient care. Dr Howard stated:
“I was aware that she had issues with both shoulders but primarily the left. She explained to me that there was no specific injury that had occurred but that she had pain related to the repetitive nature of her work in October of that year and that she had attended Wagga Base Hospital on at least one occasion for review in relation to this pain.
I was aware at the time of her initial review that she also had issues with her cervical spine and certainly had potential evidence of left sided C7 compression, having had a perineural nerve root injection in this area. I investigated her further with an MRI scan of her shoulder and saw her on review in December 2020 with this scan. This showed rotator cuff tearing of the left shoulder.”

Dr Howard gave the opinion that the cuff tearing was considered degenerative but said,
“This can be exacerbated by an injury at any time or indeed repetitive work. This may be the underlying problem in Ms Bell’s case.
…
It remains somewhat moot without definite history of injury that the workplace is the main contributing factor causing Ms Bell's rotator cuff tear. It would be more reasonable to assume that the cuff tearing is degenerate but that she has had an exacerbation of an underlying problem due to the repetitive and heavy nature of the workplace activities for which she performs at the Age Care facility.”

Dr Fairhall

Neurosurgeon, Dr Jacob Fairhall prepared a report on 3 February 2021. Dr Fairhall noted that the applicant was a nurse’s aide in aged care. The applicant’s issues stemmed from September the previous year when she developed left upper limb pain. Dr Fairhall noted that the applicant was under the care of Dr Howard and surgery was being contemplated. Dr Fairhall referred the applicant for an MRI scan.

Dr Poplawski

The applicant relies on medico-legal reports prepared by orthopaedic surgeon, Dr Zbigniew Poplawski, dated 1 October 2021, 4 January 2022, 15 February 2022 and 21 March 2022.
Dr Poplawski recorded that the applicant left school at the age of 17 and subsequently worked at home for some time looking after her mother. Following her migration to Australia, the applicant had worked as an assistant nurse.
In taking a history of the applicant’s current problems, Dr Poplawski noted:
“As a nurse assistant Ms Bell has been involved in a significant amount of physical work with general patient care, putting patients to bed, assisting them on and off toilets, into chairs, showering patients, lifting patients from their beds, feeding them etc. She was involved in a considerable amount of repetitive bending, twisting, and lifting activities in the course of her usual employment and over a period of time developed problems in various areas as described below.”
Dr Poplawski noted the development of pain in the left shoulder in the course of employment in 2014. The ache settled when the applicant went home and relaxed but would recur at work and progressively became increasingly more painful. Dr Poplawski noted that the shoulder was investigated through ultrasound and the applicant was treated with anti-inflammatories and analgesic. When symptoms failed to resolve, the applicant was given an ultrasound guided injection of cortisone and local anaesthetic.
The applicant redeveloped discomfort in late 2020 at work. Dr Poplawski noted that ultrasound examinations of both shoulders and an MRI of the left shoulder were performed. The applicant had been referred to Dr Howard, who recommended surgery.
In October 2020, the applicant noted the onset of pain in her neck with work activities, radiating down the left arm associated with some intermittent paraesthesia. An MRI scan of the cervical spine was carried out in February 2021 and noted a left paracentral disc protrusion at C6/7, which was felt likely to impinge on the medial most aspect of the exiting left C7 nerve root.
Dr Poplawski performed an examination and reviewed the radiological evidence. Amongst other things, Dr Poplawski diagnosed a left rotator cuff tear with bursitis and C6/7 disc prolapse.
Asked whether, on the balance of probabilities, the applicant’s conditions were caused by the nature and conditions of her employment, Dr Poplawski responded:
“In my opinion it is more likely than not that Ms Bell developed problems in the left shoulder in the form of a rotator cuff injury as a result of the work activities that she has been carrying out over the years.
…
In my opinion it is more likely than not that her neck problem, i.e., a disc prolapse at the C6/7 level, as outlined in the body of my report, has been precipitated by her work activities.”
Asked whether, on the balance of probabilities, employment was the main contributing factor to the applicant’s injuries, Dr Poplawski responded:
“In my opinion employment has been the main contributing factor to her shoulder and neck lesions…”
Dr Poplawski further gave the opinion that the surgery recommended by Dr Howard to the left shoulder was reasonably necessary and employment had materially contributed to the need for the surgery.
In his second report, Dr Poplawski gave an opinion on the applicant’s capacity for work as follows:
“Ms Bell’s time off work to date has been reasonable and caused by cumulative injury to her neck and left shoulder and aggravation of pre-existing degenerative changes in her knees. She remains troubled with pain in her neck, left shoulder and both knees, to the point where she is no longer capable of carrying out the usual work activities required of a nurse aide.
…
Ms Bell will not be capable of returning to her work as an assistant nurse in the future, or indeed to any physically demanding occupation, as a result of the above-mentioned ongoing cumulative problems.”
Dr Poplawski reviewed the applicant again in preparation of his report of 15 February 2022. Dr Poplawski reiterated his view that the applicant sustained a cumulative injury to the left shoulder in the course of her work duties as a nurse assistant working for the respondent. The applicant required arthroscopic surgery to the left shoulder which was carried out in November 2021. In the latter half of 2020, the applicant noted the onset of pain in the neck with work activities radiating to her left shoulder and down the left upper arm. Dr Poplawski diagnosed neck pain with non-verifiable left-sided radiculopathy. Dr Poplawski provided an assessment of whole person impairment, which is not presently relevant.

Dr Doig

The respondent relies on medico-legal reports prepared by consultant orthopaedic surgeon, Dr Graeme Doig, dated 20 May 2021 and 20 June 2022.
Dr Doig took a history of the applicant’s work for the respondent. The applicant believed she injured her non-dominant left shoulder and cervical spine whilst performing her normal duties. The applicant developed pain whilst in the shower at home after a day of work.
Dr Doig noted that the applicant denied any previous problems or injuries to her neck and shoulders. Dr Doig noted, however, that there was medical imaging of both shoulders in July 2020 confirming full thickness tears and degenerative changes. Dr Doig noted the results of more recent MRIs and that the applicant had undergone an epidural steroid injection in the neck which was unhelpful, as was physiotherapy.
The applicant complained of pain in her left shoulder over the trapezius muscle extending to the neck. This was interfering with her sleeping patterns. The applicant reported problems lifting with the left arm and, in particular, performing gardening.
Dr Doig’s examination demonstrated tenderness around the trapezius muscle on the left side of the neck and around the shoulder and upper arm. The applicant had restricted active range of motion at the left shoulder and evidence of positive impingement.
Dr Doig observed:
“Ms Bell was only complaining of left shoulder and trapezius muscle pain at the time of my assessment. The condition of rotator-cuff tearing was preexisting. Medical imaging had been performed in July 2020. It would be impossible to state with any accuracy when the tearing of the tendons occurred. It has been well documented that as the female population ages the number of asymptomatic rotator-cuff tears increases.
…
Based on the documentation supplied, there is no evidence that the rotator cuff at the left shoulder was torn at work.”
With regard to the relationship between the applicant’s condition and employment, Dr Doig stated:
“There is no evidence that employment was the main or substantial contributing factor to the rotator-cuff tear at the left shoulder. The condition was pre-existing and there was a delay in presenting an issue with her employer. This should be clarified with the treating practitioners over the years.”
With regard to the applicant’s capacity for work, Dr Doig stated:
“Ms Bell will currently have a less than 5 kgs lifting, pushing and pulling restriction at or below waist height with the non-dominant left arm. She has difficulty using her left arm overhead. With these restrictions in place, I believe she would struggle to return to her pre-injury position as a Personal Care Worker in Aged Care, although this should be clarified with the employer.
…
Ms Bell is fit for modified duties in a permanent capacity with the previously listed restrictions in place.”
Dr Doig agreed that the proposed shoulder arthroscopy and rotator cuff repair was reasonably necessary for the applicant’s condition but said this did not appear to be work-related.
In his supplementary report, Dr Doig noted that since his previous assessment, the applicant had undergone a rotator cuff repair on 10 November 2021. The applicant was on a waiting list for neck surgery which was scheduled for two weeks’ time.
Asked whether the applicant’s condition was contracted, aggravated, accelerated or exacerbated and deteriorated as a result of employment, Dr Doig responded:
“As a result of the incident of 22 October 2020, Ms Bell suffered a soft-tissue injury to the left shoulder and trapezius muscle on the left side of the neck. There was no acute injury of note, she simply developed worsening pain during her shift which deteriorated overnight. The rotator-cuff tear may have been pre-existing, similar to the neck pathology. It has been well documented that as the female population ages, the number of asymptomatic rotator-cuff tears increases on medical imaging.”
With regard to restrictions on the applicant’s work capacity, Dr Doig stated:
“Ms Bell will have a less than 5kg lifting, pushing and pulling restriction at or below waist height with the non-dominant left arm. She should not be using her arm overhead and certainly not lifting overhead. She should avoid repetitive bending and twisting through the neck and will require breaks from prolonged sitting. She does not drive a motor-vehicle. These restrictions most likely will be permanent.”

Applicant’s submissions

The applicant referred to her statement evidence and noted that she had been employed with the respondent in an unskilled capacity for approximately 20 years.
The applicant’s initial statement was prepared following an interview with an investigator prior to having obtained legal advice. The applicant described experiencing pain in her left arm near her shoulder. At hospital, the applicant was diagnosed with a compressed nerve and sent for injection. The applicant’s general practitioner subsequently took over the applicant’s treatment and referred her to physiotherapy and provided her with a WorkCover certificate. Eventually, the applicant was referred to Dr Howard.
The applicant noted the statement evidence from Ms Noble indicating that the applicant had been off work on sick leave for a period of time. The applicant noted that there was no repudiation from the respondent of the applicant’s evidence as to the nature of her work as an assistant in nursing. The applicant submitted that the Commission would accept that the applicant’s duties involved the kind of work described in her statement evidence.
The applicant’s duties involved a significant amount of physical work, such as repetitive bending, twisting and lifting.
The applicant described an onset of neck symptoms and also identified her current disabilities.
The applicant submitted that the respondent’s independent medical examiner, Dr Doig had conceded that the nature of the applicant’s work had affected the applicant’s shoulder and neck.
The applicant referred to the clinical records of her general practitioner. It was submitted that the applicant was stoic and had minimal contact with her doctor despite her age.
The applicant noted the references to shoulder symptoms in June 2020 and July 2020. It was noted that, on 26 October 2020, the applicant had presented to the Emergency Department with neck pain and left radiculopathy. The applicant was referred to a neurosurgeon.
In November 2020, a CT guided cervical steroid injection had slightly improved the applicant’s pain but she could not work. The applicant was noted to be attending physiotherapy twice weekly. References to neck and shoulder pain were recorded again in December 2020 and February 2021. In June 2021, it was noted that the applicant had undergone an independent assessment and her claim for workers compensation had been closed. The applicant was not able to afford to see a lawyer.
Although the applicant was an unsophisticated individual working in basic employment, she was able to identify an onset of pain over time to her left shoulder and neck in association with her heavy work. A clear clinical history and consistent statement evidence had been provided by the applicant.
The applicant noted that employer records from Emma Chalker recorded a consistent history.
The applicant said her case was, in effect, supported by Dr Doig. Dr Doig’s first report was short and prepared prior to the applicant having sought legal advice. That report recorded that the applicant was injured while performing her normal duties and developed pain after a day at work. The applicant denied any previous problems with her neck and shoulder.
The applicant submitted that Dr Doig did not engage with her claim and simply assumed the shoulder pathology to be pre-existing.
In his second report, Dr Doig again failed to deal with the day-to-day wear and tear caused by the type of work which the applicant performed. Nonetheless, the doctor conceded that a soft tissue injury to the shoulder and trapezius muscles had been sustained. Dr Doig appeared to concede that the onset of symptoms was due to work, noting the absence of acute injury.
The pathological consequences of the work the applicant was performing was addressed in the reports of Dr Howard. Dr Howard recorded that there was no specific injury but the applicant had pain related to the repetitive nature of her work in October 2020. Dr Howard confirmed the causal relationship between the applicant’s condition and work. Dr Howard said it would be reasonable to assume that the cuff tearing was degenerative but the applicant had an exacerbation of that problem due to the repetitive and heavy nature of her workplace activities.
The applicant submitted that the Commission would accept inferentially that incapacity resulting from the condition diagnosed by Dr Howard also resulted from the applicant’s employment with the respondent
Unlike, Dr Doig, Dr Poplawski undertook an analysis of the work the applicant was performing and provided a concluded view. Dr Poplawski identified incapacity resulting from the injury.
The applicant submitted that a consistent history had been given by her to her employer, the investigator and all of the doctors involved in her case. The unchanging nature of the applicant’s evidence would be heartening to the Commission. The applicant referred to the consistent history and reporting by Dr Fairhall and the applicant’s general practitioner, Dr Elmasalamy. The applicant’s general practitioner identified that the applicant was incapacitated for work due to her left shoulder and cervical spine injuries. The medical certificates continued to certify the applicant as being totally incapacitated.
Having regard to the consistent histories, despite the absence of legal assistance, in various documents over time, the supporting opinions from the treating doctors, the grudging acceptance of Dr Doig and the wholehearted endorsement with analysis by Dr Poplawski, the applicant submitted that the Commission would have little difficulty finding in her favour.

Respondent’s submissions

The respondent submitted that while the applicant had a long history of work for the respondent, the nature of her duties had only been described in general terms.
The applicant underwent ultrasound in relation to shoulder complaints in 2014. Risk factors including the applicant’s weight had been noted by the applicant’s treating doctors.
The respondent submitted that it was clear from the evidence, including the hospital records, that the applicant finished a day of work and first noticed chest pain whilst in the shower. The main concern, causing the applicant to present to hospital, was her heart. The applicant was noted to be taking hypertensive medications.
The respondent submitted that pre-existing pathology in the applicant’s neck and shoulder were revealed at hospital following investigations in relation to the applicant’s chest pain. The applicant did not present at hospital due to neck and shoulder symptoms.
The respondent submitted that there was a lack of specific correlation between the body parts claimed and the applicant’s specific occupational activities. At no stage was it made apparent what the nexus between the applicant’s tasks and her neck and shoulder conditions was.
The applicant’s evidence failed to address whether her activities at home and outside of work might impact on her neck and shoulder. The respondent noted that there was reference to the applicant performing lawnmowing which was unexplained.
The respondent noted that the applicant described her work as placing “incredible” strain on her body parts. The respondent described this as a Freudian slip and suggested that the applicant’s evidence was incredible and could not be believed.
The respondent submitted that it could not be assumed that the applicant’s work would impact on her body in the manner alleged. All of the other factors must be considered in determining “the main contributing factor”.
The applicant denied undertaking any physical activities outside of work. The respondent submitted that this evidence would not assist the Commission as it was not believable that the applicant was not doing any physical activities whilst at home. No insight as to what was actually happening in the rest of the applicant’s life had been provided to assist the Commission in making its decision.
The omissions in the applicant’s statement evidence were exemplified by the failure to refer to neck surgery performed on 4 July 2022 in the applicant’s most recent statement of 13 July 2022.
The evidence from the applicant’s employer suggested that the applicant was well-trained at manual handling. The employer was careful to ensure proper work practices were followed.
The respondent submitted that although it conceded that the applicant was not barred from the recovering compensation sought in these proceedings pursuant to ss 254 and 261 of the 1998 Act, the dispute as to injury for the purposes of s 4 of the 1987 Act was maintained. The applicant had pre-existing pathology that was well advanced. The applicant’s medical evidence did not explain why the onset of symptoms in October 2020 was not simply a transient matter that had now passed. The treating medical evidence suggested gradual improvements in the applicant’s neck pain.
The respondent submitted that the applicant bore a significant onus to satisfy the Commission that her employment was the main contributing factor to her injury. In order to discharge her onus, the applicant needed to provide far more detail.
Dr Poplawski’s opinions were superficial in the same way as the applicant’s evidence. Dr Poplawski’s opinion was provided after only a video examination, whereas Dr Doig saw the applicant in person.
Considering the evidence overall, the Commission would not be persuaded by the applicant’s case that her employment was the main contributing to her injury.
In any event, the respondent submitted that the applicant retained some residual work capacity. For example, the applicant was limited to lifting 5kg. It was possible for the applicant to do suitable work within her restrictions.

Applicant’s submissions in reply

The applicant submitted that the diagnosis of her condition had been consistently identified. The applicant brought the best factual case she could. No countervailing factual evidence had been provided by the respondent. The applicant urged an acceptance of her evidence.

The applicant submitted that there was no substantive medical opinion that the applicant was capable of performing work. The applicant had undergone two major surgeries and all of the medical certifications suggested she had no current work capacity.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
There is no medical dispute in the present case that the applicant has medical conditions at her left shoulder and cervical spine. The primary dispute between the parties, relates to the causal relationship between those conditions and the applicant’s employment. The applicant relies on an injury for the purposes of s 4(b) in the nature of either a contraction of a disease or an aggravation, acceleration, exacerbation or deterioration of a disease. In both cases, the applicant is required to establish that employment was “the main contributing factor” to the injury.
In AV v AW[1]at [65]-[78] Snell DP considered a number of authorities on s 4(b) and said:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor. The following may be taken from the above:
(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
[1] [2020] NSWWCCPD 9.
The applicant has provided statement evidence in which she has given an account of her employment duties for the respondent. The applicant’s evidence as to the nature of her employment duties is not contradicted by any evidence produced by the respondent. The applicant described performing a number of physically demanding duties involving use of her upper limbs including, assisting patients on and off toilets and into chairs, putting them to bed and lifting them from bed, and showering and dressing patients. In her statement of 21 April 2022, the applicant described the particular impact of such duties on the relevant parts of her body. The applicant said she would often feel pain and fatigue after work.
The clinical notes in evidence record that the applicant reported symptoms at her shoulders and particularly the left shoulder from about 2014 onwards. The applicant’s shoulder symptoms were investigated through ultrasound and treated with injections. Although the clinical notes give no indication of whether the applicant shoulder symptoms were at that stage related to her employment, the history provided by the applicant to Dr Poplawski suggests that the symptoms developed in the course of employment. The applicant’s symptoms would settle at home and recur at work and progressively became more painful.
The clinical notes do not suggest any alternative causative event or injury to explain the applicant’s symptoms.
There is some suggestion in the evidence from Dr Howard and Dr Doig that the rotator cuff tears identified at the applicant’s shoulders were degenerative in nature. The applicant is now 62 years old and Dr Doig indicated that it is well documented that as the female population ages, the number of asymptomatic rotator cuff tears increases. Dr Howard appears to have taken a similar view but agreed that the applicant’s employment duties with the respondent caused an exacerbation of degenerative changes due to the repetitive and heavy nature of those work activities.
The opinions expressed by Dr Doig in his reports, dated 20 May 2021 and 20 June 2022, are, on their face, somewhat contradictory. In his first report, Dr Doig said there was no evidence that employment was the main contributing factor to the rotator cuff tear at the applicant’s left shoulder. Dr Doig did not, however, at that point consider the possibility of an exacerbation or aggravation of the degenerative pathology at the applicant’s left shoulder due to the applicant’s employment.
Dr Doig appears to have formed a different view of the causal relationship to work by the time of his second report. Asked whether the applicant’s condition had been contracted, aggravated or exacerbated as a result of employment, Dr Doig in this report agreed that the applicant suffered a soft tissue injury to the left shoulder and trapezius muscle on the left side of the neck. Dr Doig noted the development of worsening pain during a shift which deteriorated overnight. Dr Doig did, however, reiterate his view that the rotator cuff tear may have been pre-existing, similar to the neck pathology. In this regard, Dr Doig can ultimately be seen to have provided an opinion that is broadly consistent with Dr Howard’s opinion in relation to the shoulder.
Dr Poplawski found that employment was the main contributing factor to the applicant’s shoulder and neck conditions. Dr Poplawski’s opinions, however, suggested injury to both body parts for the purposes of s 4(b)(i) rather than s 4(b)(ii). Dr Poplawski gave his opinion after taking a detailed history of the onset of symptoms and analysis of the nature of the applicant’s employment tasks. Dr Poplawski’s view was expressed after examination and review of the relevant radiological investigations.
Although Dr Poplawski and Dr Doig differ in relation to their diagnosis of the work-related injury at the cervical spine, both appear to accept that work was the main contributing factor to the applicant’s experience of symptoms at the cervical spine. They have both also given an opinion indicating that the work injury had given rise to incapacity for work.
The respondent’s submissions suggest that there may not be a fair climate for the acceptance of the medical opinions on causation due to a failure by the applicant to provide more specific evidence as to the correlation between her symptoms and her occupational activities. The applicant’s evidence was also criticised for a failure to address what her activities outside of work were in order for an assessment to be made as to the main contributing factor to the applicant’s conditions. The respondent submitted that it lacked credibility that the applicant undertook no physical activities outside of work. The evidence suggested that the applicant had been well trained in manual handling and great care was taken to ensure that workers followed proper practices in the performance of their duties in the respondent’s workplace.
In considering the respondent’s submissions, it is relevant to note the applicant’s age. There is no suggestion in any of the evidence that the applicant is involved in any particular repetitive or heavy activities outside of work other than the performance of ordinary domestic duties including gardening and lawnmowing as required. There can be no doubt that the applicant’s duties in her employment were physically demanding and involved repetitive and heavy work. The applicant has described in her most recent statement, the impact of those duties on the relevant body parts.
Both Dr Doig and Dr Poplawski appear to have had a satisfactory understanding of the nature of the applicant’s work. Both experts have given opinions consistent with employment being the main contributing factor to either the contraction or an aggravation or exacerbation of a degenerative disease at both body parts.
It is noted that the applicant’s general practitioner, Dr Elmosallamy has, in his certificates of capacity, also expressed the view that the conditions of the applicant’s left shoulder and cervical spine were causally related to lifting, moving residents and the applicant’s daily activities as an aged care nurse.
I accept that both work and non-work related causal factors need to be taken into account, and an assessment of the lay and medical evidence is required, in order to determine the one main contributing factor. I also accept that it is the applicant who bears the onus of establishing the requisite causal relationship on the balance of probabilities.
After carefully considering all of the evidence and submissions before me, I am satisfied that the applicant has discharged her onus and established injury for the purposes of s 4(b) at both her left shoulder and cervical spine.
In light of my determination above, I am satisfied that it is appropriate to make a general order for the respondent to pay the applicant’s reasonably necessary s 60 expenses upon production of accounts, receipts and/or Medicare notice of charge.
There does, however, remain a dispute between the parties as to the extent of any incapacity for work due to the injury. The respondent’s submission that the applicant retains some residual capacity for work derives from the opinion given by Dr Doig that the applicant has a less than 5kg lifting, pushing and pulling restriction at or below waist height with her non-dominant left arm. The applicant should not be using her arm overhead and lifting overhead. The applicant should avoid repetitive bending and twisting through the neck and will require breaks from prolonged sitting. Dr Doig has indicated that these restrictions will most likely be permanent.
The applicant relies on the opinion of Dr Poplawski that she is no longer capable of carrying out her pre-injury duties. Dr Poplawski further indicated that the applicant would not be capable of returning to any physically demanding occupation as a result of her ongoing problems.
Dr Doig and Dr Poplawski therefore appear to have provided largely consistent opinions on incapacity.
The applicant does, however, have certificates of capacity issued by her general practitioner that certify her as having no current work capacity on a permanent basis.
In considering whether there is any residual capacity for work, it is necessary to consider whether there is “suitable employment” in work for which the applicant is currently suited having regard to the nature of her incapacity, her age, education, skills and work experience.
The applicant is now 62 years old and has limited education. The applicant performed domestic duties at home prior to her migration to Australia. Since arriving in Australia, the applicant has only ever worked as a nursing assistant in aged care. I am not satisfied that there is any employment for which the applicant is currently suited having regard to her restrictions and the matters identified above.
I am satisfied, as a result, that the applicant has, at all material times, had no current work capacity as a result of the injuries to her left shoulder and cervical spine.
The parties are in agreement that the applicant’s PIAWE rate is $1,213.21.
It follows from the above that there will be an order for the respondent to pay the applicant weekly compensation pursuant to ss 36(1) and 37(1) of the 1987 Act from 23 October 2020 to date and continuing based on the agreed PIAWE rate as periodically indexed.
The order for weekly compensation will be subject to the operation of s 50 of the 1987 Act insofar as the applicant was in receipt of sick leave during the relevant period.

[2022] NSWPIC 420

28 July 2022