Boulton v WGC Crane Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Boulton v WGC Crane Group Pty Ltd [2023] NSWPIC 420
APPLICANT:	Shane Boulton
RESPONDENT:	WGC Crane Group Pty Ltd
Member:	Lea Drake
DATE OF DECISION:	18 August 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for finding of injury to the applicant’s right upper extremity (shoulder) arising from a direct injury on 10 August 2018 or as a consequence of an injury to the left upper extremity (shoulder) and neck on 10 August 2018; Held – the applicant sustained a direct injury to his neck, left shoulder and right shoulder in an accident on 10 August 2018 whilst in the employ of the respondent; the applicant sustained further injury to his right shoulder as a consequence of his consequential reliance on his right arm following initial injury.
determinations made:	The Commission determines: 1. The applicant sustained a direct injury to his neck, left shoulder and right shoulder in an accident on 10 August 2018 whilst in the employ of the respondent. 2. The applicant sustained further injury to his right shoulder as a consequence of his consequential reliance on his right arm following the initial injury to his left shoulder on 10 August 2018. The Commission orders: 1. The respondent is to reimburse the applicant for all reasonable past medical expenses incurred by the applicant and meet all ongoing reasonable medical expenses for treatment of his right shoulder.

STATEMENT OF REASONS

BACKGROUND

The applicant was injured in an accident on 10 August 2018 whilst he was working at a windfarm near Crookwell, NSW. He was driving a semi-trailer up a compacted road. He was asked to reverse the truck up to an area where crane parts could be loaded onto the truck. As he reversed the truck the trailer and cabin rolled over to the passenger's side and came to a stop. He undid his seatbelt and fell into the void. The applicant kicked out the windscreen and escaped the vehicle.
The respondent’s documents record a left shoulder injury, a small laceration to the left ear, bruising to the right leg and an aggravation of right C5/6 discovertebral arthritis.[1]
[1] ARD page 23.
The respondent has met liability for workers compensation payments in relation to the left shoulder injury suffered by the applicant. It denies liability for any direct injury to the right shoulder or any consequential injury to the right shoulder.
The applicant has paid for surgery to his right shoulder arising from what he alleges is a direct, or in the alternative, a consequential injury arising from the accident on
10 August 2018.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
(a) did the applicant sustain a frank injury to his right upper extremity (shoulder) in the accident on 10 August 2018 or, in the alternative, and
(b) did the applicant sustain a consequential injury to his right upper extremity (shoulder) arising from the accident on 10 August 2018.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The applicant was represented by Mr John Wilson of counsel, instructed by Johnston Legal Solicitors.
The respondent was represented by Ms Lyn Goodman of counsel, instructed by Rankin Nathan Solicitors.

EVIDENCE

There was no oral evidence.
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute and attachments;
(b)    Reply to Application to Resolve a Dispute and attachments;
(c)    Applications to Admit Late Documents and attachments, and
(d)    further report of Dr Ridhaigh dated 26 June 2023 served at the conciliation/arbitration on 11 July 2023 and tendered by consent.

RELEVANT LEGISLATIVE PROVISIONS

This is a claim pursuant to s 4 of the Workers Compensation Act 1987. It is a claim for a frank injury or, in the alternative, a consequential injury following a frank injury. There is no allegation of a disease.

CONSIDERATION

Prior to the accident of 10 August 2018 the applicant had had no previous difficulty with either of his shoulders.
Following the accident the applicant had extensive medical treatment to his left shoulder which is outlined in his statement.[2] It included investigations including an MRI and CT guided arthrogram; cortisone injections; an arthroscopy, decompression and AC joint resection; physiotherapy and hydrotherapy; and consultations with a psychologist.
[2] ARD page 1.
Liability for treatment expenses related to the applicant’s left shoulder was declined from
7 December 2020. Thereafter the applicant has met his own treatment expenses for the left shoulder.
The applicant’s employment with the respondent was terminated in June 2021.
In September 2021 the applicant commenced casual work two to three days per week which he performed until 22 February 2022 with a garden maintenance business, All Round Tree and Garden Care, predominantly performing lawn mowing duties. The applicant ceased performing any work with this employer after experiencing too much pain in both arms and his neck. The applicant does not allege any injury arising from his employment with All Round Tree and Garden Care. This employer has provided correspondence outlining the applicant’s duties whilst in its employ.[3] It is extracted below;
[3] ARD page 10.
“To Whom it may concern,
9-5-2023
Shane Boulton was employed by All Round Tree & Garden Care from 27-9-
2021 to 29-6-2022.
Shane assigned job role was general labouring.
Duties included lawnmowing with a Stihl battery lawnmower and general
lawn maintenance.
Shane was not at any time doing any heavy lifting and was always
accompanied by another employee.
During this time with All Round Tree & Garden Care Shane did not sustain
any recordable incidents or injuries.
Our company All Round Tree & Garden Care was aware of physical
restrictions placed on Shane due to a previous injury and did always work within these limitations.”
The applicant’s evidence is that since the injury to his left shoulder he has relied more on his right shoulder to perform tasks. He is right hand dominant;[4]
[4] ARD page 6, paras 98 and 103 to 105.
“98. Since the incident on 10 August 2018 I have relied more on my right arm to do
things.
…
103. In February 2022 I had a severe flare up of symptoms in my right shoulder
and informed my GP Dr Charles of that. Dr Charles referred me for a scan on my
right shoulder.
104. Since injuring my left shoulder I had started using my right arm more for daily
activities, albeit I am right handed.
105. Increased symptoms in both arms and my neck forced me to cease
employment with All Round Tree and Garden Care at the end of February 2022. I told the boss I was in too much pain to continue.”
(my emphasis)
Liability for any injury to the right shoulder arising from the accident of 10 August 2010 or, as a consequence of the injury to his left shoulder on that date, is denied. The reasons for denial are best set out in the insurers review of its decision to decline liability;[5]
[5] ARD page 48.
“In the section 78 notice dated 24 May 2022, reference is made to a Certificate of Capacity dated 29 March 2022 issued by Dr Michael Charles in which he indicates your right shoulder problems are due to the nature and conditions of your role at Allround Tree & Garden.
EML subsequently arranged for you to be examined by Dr Mark Ridhaigh, orthopaedic surgeon, who provided a report dated 5 July 2022. Dr Ridhaigh expressed the opinion your right shoulder condition is an idiopathic degeneration in the supraspinatus tendon. On that basis, EML issued a further section 78 notice dated 19 August 2022, again disputing liability for the claimed consequential injury.
By letter dated 20 December 2022, your solicitors sought a review of the decision to decline liability for your right shoulder injury by way of section 78 notice dated 19 August 2022.
Your solicitors have served a report of Dr Bodel, orthopaedic surgeon, dated 2 December 2022.
Dr Bode! recorded a history of the work injury on 10 August 2018 and the subsequent treatment to your left shoulder and cervical spine.
You reported to Dr Bodel that, since your last examination with him on 5 November 2020, you have developed increasing pain in the region of the right shoulder which has become more troublesome than the left. You have had injections of Cortisone into both shoulders and further physiotherapy and made some progress in respect of the left shoulder but not the right. You have not had any surgery on the right at this stage but remain under the care of Professor Jaeger.
Dr Bodel reports you were unable to return to your work with the insured but found work in lawn care and cleaning on 27 September 2018. The right shoulder has steadily deteriorated whilst doing that work.
You currently complain of stiffness in both shoulders, the right worse than the left, with numbness and tingling in both hands involving all five digits of each hand.
Dr Bodel notes the report of Dr Ridhaigh dated 5 July 2022, at which time Dr Ridhaigh concluded you had a rotator cuff tear in the right shoulder and cervical spondylosis as well as the injury to the left shoulder. Dr Bodel also notes that Dr Ridhaigh he did not think that work caused the pathology in the region of the right shoulder, with which Dr Bodel agrees. Dr Bodel reports that the right shoulder was becoming symptomatic long before you commenced work with Allround Tree & Garden Care.
In Dr Bodel's opinion, you suffered a serious injury to the neck and left shoulder on 10 August 2018. There was no initial onset of right shoulder girdle pain but there is now pain and stiffness in the right shoulder, which came on gradually over a period of time. You have been using your right shoulder while trying to recover from the neck and left shoulder pathology and have subsequently had a further aggravation when you found alternative work but the increasing pain and stiffness in the right shoulder commenced before you commenced that work.
Dr Bodel believes at the very least the injury to your right shoulder is an aggravation, acceleration, exacerbation or deterioration of the rotator cuff tear caused by using your right arm to try and assist in your recovery with continuing problems of the left arm.
Dr Bodel further goes on to state the right shoulder injury is a consequence of the injury on 10 August 2018 and is therefore an aggravation, acceleration, exacerbation or deterioration of the disease process.
We have considered the opinion of Dr Bodel, however, based on the comments of Dr Charles that your shoulder problems are due to the nature and conditions of your role at Allround Tree & Garden and the opinion of Dr Ridhaigh that your right shoulder condition is unrelated to your employment with WGC Crane Group Pty Ltd, we do not consider that you have suffered a consequential injury to your right shoulder.
We therefore do not accept that the claimed consequential right shoulder condition has resulted from your accepted injury on 10 August 2018.”

Medical evidence

Dr Bodel saw the applicant on 5 November 2023 and provided a report dated
9 November 2020.[6] He took the following history concerning the applicant’s condition following surgery to his left shoulder.
“He was then later able to concentrate more on the neck and he was referred to see Professor Jaeger, a neurosurgeon in Wollongong, and Professor Jaeger arranged for MRI scans of the cervical spine and indicted that he had significant cervical disc pathology at the C5/6 level particularly facet joint arthritis on the right hand side as probable signs of some intermittent nerve root compression involving the C6 nerve root.”
[6] ARD page 52.
He recorded the applicant’s then current complaints which included pain in the right shoulder girdle. He noted that that pain was not as severe as the pain experienced by the applicant in the region of his left shoulder. The doctor’s recorded list of current complaints is set out below.
“CURRENT COMPLAINTS
 He has suboccipital pain and headache and on the left hand side he does have pain that
radiates up over the vertex of the scalp into the retroorbital area behind the left eye;
 He has pain and stiffness in the region of the left shoulder;
 He has right shoulder girdle pain but it is not as severe;
 He does have stiffness in the left shoulder; and
 The pain radiates into the upper part of the arm but not below the insertion of the deltoid.”
(my emphasis)
Dr Bodel provided a supplementary report dated 2 December 2022 dealing with the applicant’s alleged right shoulder injury and its possible causation. I have extracted his conclusions.
“At the time of my clinical examination, this gentleman complained of some pain in the region of the right shoulder and at the time of the physical examination there was a restricted range of shoulder
movement. It must be remembered that this gentleman was in quite a violent accident where the truck that he was driving rolled over onto the passenger side. He strained vigorously with both arms to save himself. The truck came to a stop while it was on its passenger side. He undid his seatbelt and then fell down into the void, which is the passenger’s compartment where he had a direct blow to the left shoulder but he had also injured his right shoulder in that incident. The assessment I have given therefore does include an assessment for the rateable restriction of right shoulder movement and that is the reason behind that.
In response to your specific questions I would indicate the following:
1. The diagnosis of injury to the right upper extremity that led you to include that assessment
in his overall assessment of whole person impairment.
The diagnosis of the right shoulder injury (right upper extremity) has occurred as a consequence of the recorded restriction of movement seen clinically at the time of my examination. This has arisen as a consequence of the injury in my view, although the primary injury was to the left shoulder and the neck.
2. The cause of that injury to the right upper extremity, and whether it was caused directly by
the incident that occurred at work on 10 August 2018, or alternatively was caused by the effect of the injuries to the left shoulder and neck as a consequential injury. In my view, the right shoulder injury (right upper extremity) is a direct injury caused by the events of the accident on that day.
His main focus was the neck and left shoulder initially but he did have pain and stiffness in the region of the right shoulder, as far as I understand it, right from the very beginning although the main focus was always on the left shoulder. It is possible that this is a consequential injury and that it came on gradually over time while favouring the right side to protect the more injured left side, but historically I am satisfied that it should really be regarded as a frank injury that occurred at the time of the accident.”
(my emphasis)
Dr Deshpande examined the applicant for the insurer on 4 February 2021 and provided a report dated 10 February 2021. He obtained a history from the applicant of developing headaches and neck pain, mostly on the right, following the completion of his surgical treatment by Dr Jansen, his treating orthopaedic surgeon. He provided a prognosis of likely degeneration of the applicant’s condition over time. He noted no history of injury to the right shoulder, a normal examination of the right shoulder and a lack of contemporaneous evidence of any injury to the right shoulder in the clinical notes. The respondent relied on this opinion to reject the applicant’s claim of injury to his right shoulder.[7]
[7] ARD 24 and 25.
The insurer also relied on the notes of Dr Charles, the applicant’s treating general practitioner.[8] Dr Michael Charles issued you a certificate of capacity on 29 March 2022, certifying you with no current capacity for work. EML note the below information was reported:
“aggravation due to the nature and conditions of current employment. It was reasonable to try new employment, but the nature and conditions of the work caused an aggravation”
“there was no specific incident or task, symptoms gradually aggravated by the nature of the new work tasks”
“pain in the neck, headaches, left shoulder pain, gradually
developing right shoulder pain over several months, likely due to overcompensating for the injured left side”
[8] ARD page 32.
Dr Ridhaigh examined the applicant for the insurer on 5 July 2022. The applicant gave the following history:[9]
“He tells me that with regard to the left shoulder he saw Dr Jansen approximately six to eight months after surgery and was told the left shoulder would be as good as it would get.
He has noticed deterioration in the left shoulder.
He tells me in the course of his employment he has been using his right shoulder more for doing cleaning jobs, and he is at the stage now where he cannot lift the arm, he cannot turn the wheel of a car, he has trouble sleeping on the right-hand side at night, and trouble using the arm at or above shoulder level.
He takes Palexia for pain during the day and Endone at night.
He cannot reach to the top shelf or reach up to hang out washing. He is weak in the arm.
He cannot mash potato.”
(my emphasis)
[9] ARD page 125.
Dr Ridhaigh provided the following opinion in his report dated 5 July 2023:[10]
[10] ARD page 126.
“1. Do you consider the worker's employment with All Round Tree & Garden Care to be the main contributing factor to the current right shoulder symptoms? Please provide your rationale.
No, I do not consider Mr Boulton's employment with All Round Tree & Garden Care to be the main
contributing factor to the current right shoulder symptoms.
He has an undisplaced tear of the rotator cuff. There is no history of injury or accident with All
Round Tree& Garden Care and I asked him on several occasions if there had been an accident at
work; he denied this, he just said they were the conditions of employment, and the fact that he was
using his arm more because the left arm hurt. He is naturally right-hand dominant.
2. Are Mr Shane Boulton's injuries and/or symptoms entirely related to the incident on 10 August 2018. If not, how much of his current presentation do you attribute to:
a) A pre-existing condition
b) Previous injury
c) Subsequent events in his life/lifestyle activities/new employment
There is no evidence of a pre-existing condition in the right shoulder from his history. There is no evidence of events in his life/lifestyle or employment that would cause a rotator cuff tear. Hence, in the presence of a non-displaced tear of the shoulder without history of a pre-existing condition or previous injury or significant events in his lifestyle, my opinion is that this is an idiopathic degeneration in the supraspinatus tendon.”
Applicant’s counsel submitted that Dr Ridhaigh did not answer question 2 put by the respondent’s insurer. In the absence of any history of a direct injury with either the respondent or the applicant’s garden maintenance employer he determined that the condition is idiopathic, of unknown aetiology. He denied the proposition relied upon by the respondent in its submissions that the applicant’s condition was caused by his employment as a gardener. I accept his conclusion in this regard.
However, I am not persuaded by Dr Ridhaigh’s conclusion that the applicant’s condition in his right shoulder is idiopathic.
The applicant’s left shoulder condition had deteriorated. His evidence is that he was relying on his right arm to take on more tasks as his left deteriorated. His history to the doctors is one of increased symptomatology over time, not a new condition.

I have considered the insured’s reliance on the opinion of Dr Charles, general practitioner.
Dr Charles discusses a number of possible causative factors which may have contributed to the applicant’s right shoulder condition.[11] He canvasses the possibilities, including the explanation relied on by the applicant, overuse of the right shoulder arising from the injury to the left shoulder;
“There are a number of factors which may have contributed to Mr Boulton’s right shoulder condition.
Rotator cuff tear can be a disease of gradual process and is common in the general population, though more so and often at a younger age in people who perform manual work. It is possible he may have developed a problem around this time of his life irrespective of any occupational injury. The nature and conditions of his work with WGC Crane Group may have accelerated a gradual process prior to symptom onset, but symptoms were not reported during this time employed by them. The right shoulder symptoms could have been accelerated by a compensatory process of excessive reliance on the right arm to perform tasks, due to the ongoing neck and left shoulder pain caused by his compensable injury.
The nature and conditions of gardening and cleaning work could have accelerated an underlying gradual process, or caused a more specific incident of injury (though
Mr Boulton did not report one).
In my opinion it is not possible to accurately apportion the contribution of each of these potential factors to the causation of Mr Boulton’s right shoulder problem.”
(my emphasis)
[11] Reply page 82.
I have taken into account the description of duties provided by the garden maintenance company and the evidence of the applicant regarding these duties. I am satisfied and find that the discomfort the applicant experienced following this employment arose out of his pre-existing vulnerability and was not a new injury in that employment. It would have been easy for the applicant to claim a further injury to his right in shoulder in this employment. I consider it to his credit that he does not attempt to do so.
The respondent submits that there is insufficient complaint by the applicant to his treating doctors of any symptoms in his right shoulder. The applicant provided a history to Dr Bodel and in his statement he refers to an increase in symptomatology in the right shoulder, not a sudden occurrence of pain, although there was a significant flareup in February 2022. It is a history of accelerating rather than new symptomatology in the right shoulder. I am not persuaded by the respondent’s submission.
Ms Goodman made much of the fact that the applicant is right-handed and therefore he would have been performing work with that hand and arm in any event. She submits that there would have been no need to undertake further duties with his right arm because of his right hand dominance.
I do not consider this to be a logical argument. Certainly, anyone is better off having an injury to their less dominant hand because their dominant hand can undertake more duties. That does not mean that an injured person would not offload some tasks onto their less painful dominant arm if the opportunity arose because of pain and discomfort in the injured arm.
Dr Bodel concludes that the applicant’s right shoulder was directly injured by the accident on 10 August 2018. I agree. The accident was significant. The applicant hung by his seatbelt which was across his right shoulder to his left hip. He struggled with both arms to free himself. He then fell onto his left shoulder into the void. His right leg was also injured although it is not clear from the clinical notes what treatment was provided for this. This was not a little knock. It was a significant event.
The injury to the applicant’s right shoulder was less significant than the injury to his left shoulder and the applicant did not give it any priority. It is easy to understand why the applicant would give priority to the serious injuries he suffered to his left shoulder and neck when he fell and put off focusing on the lesser injury. I find his explanation of gradually increasing pain credible and Dr Bodel’s reasoning persuasive.
Although I have concluded that the applicant’s right shoulder was directly injured in the accident of 10 August 2018, I am also persuaded that the applicant’s right shoulder was thereafter further injured by his increased reliance on the use of his right arm as a consequence of the injury to his left shoulder.
Dr Jansen is the applicant’s treating orthopaedic surgeon. On 9 August 2022 Dr Jansen reported to Dr Charles, the applicant’s treating general practitioner. He provided the following opinion in relation to the causation of the applicant’s right shoulder symptoms:
“Shane had returned to light manual work, after being stood down from his previous employment as a crane driver. This work involved office cleaning and light lawn
maintenance. Because of Shane's left shoulder problems, and his neck problems, he has had overuse of his right shoulder. He has been getting 5 months of an increasing anterior this this shoulder pain, which radiates over his deltoid. He is having trouble sleeping at night. He is also having problems with his activities of daily living. He is taking some intermittent Endone. He has had 1 cortisone injection, with relief for 2 days.”[12]

SUMMARY
[12] ARD page 129.

For the reasons set out above the Commission will make findings and orders as set out on
page 1 of the Certificate of Determination.

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Citations

Boulton v WGC Crane Group Pty Ltd [2023] NSWPIC 420

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[2023] NSWPIC 420

18 August 2023