Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District)
[2024] NSWPIC 685
•10 December 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Bulghadaryan v State of New South Wales (South Eastern Sydney Local Health District) [2024] NSWPIC 685 |
| APPLICANT: | Anna Bulghadaryan |
| RESPONDENT: | State of New South Wales (South Eastern Sydney Local Health District) |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 10 December 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Applicant worked as a records officer for Sydney Eye Hospital; role not purely clerical, involved moving large amounts of physical files; accepted cervical spine injury; dispute concerning shoulders and lumbar spine; significant support for lumbar spine injury; no treating evidence for shoulders; Held – applicant suffered injury to her lumbar spine; award for respondent for both shoulders; matter remitted for referral of assessment of permanent impairment. |
| DETERMINATIONS MADE: | The Commission determines: 1. I am satisfied that Ms Bulghadaryan suffered an injury to the lumbar spine arising out of or in the course of her employment with the respondent, to which employment was the main contributing factor. 2. Award for the respondent for injury to both shoulders. 3. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 7 February 2024 (deemed). b. Body systems/parts: i. cervical spine, and ii. lumbar spine. c. Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor are: a. the Application and attached documents; b. the Reply and attached documents, and c. an Application to Admit Late Documents dated 22 November 2024 and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Ms Bulghadaryan (the applicant) was employed at the Sydney Eye Hospital as a medical records officer. Her employer is technically the State of New South Wales (the respondent) due to statutory arrangements, but her duties were performed at the Eye Hospital in central Sydney.
When she commenced work at the eye hospital, her duties were not particularly physical. However, her job title somewhat belies the nature of her duties as they developed over time. It is apparent that (unusually, in this day and age) Sydney Eye Hospital had a somewhat antiquated filing system, involving physical (as opposed to electronic) record keeping. As such Ms Bulghadaryan was required to move records around in boxes. These files were also stored over two floors, requiring Ms Bulghadaryan to carry boxes up and down stairs.
From about 2018, Ms Bulghadaryan’s workload increased, from around 250 files per day, to 400-500 files per day. This further increased in 2021, when a number of staff left. Ms Bulghadaryan took a holiday in 2022, and when she returned there was a significant backlog in filings.
Ms Bulghadaryan became incapacitated and provided notification of an injury to her “neck and trunk” on 8 September 2022. The present claim Ms Bulghadaryan brings is for lump sum compensation of 22% whole person impairment.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether the applicant has suffered an injury to her lumbar spine and both shoulders arising out of or in the course of her employment with the respondent.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
The matter proceeded to a conciliation/arbitration hearing on 28 November 2024. In spite of significant attempts by the parties and myself, they were unable to reach an agreed resolution of the dispute. The applicant was represented by Mr Robison of counsel, instructed by Carroll & O’Dea Lawyers, whilst the respondent was represented by Ms Balendra of counsel instructed by Hicksons.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents;
(b) Reply and attached documents, and
(c) an Application to Admit Late Documents dated 22 October 2024, lodged by the respondent.
I have considered all of the material contained in the above documents, with particular consideration of the material referred to by the parties during submissions. I will briefly refer to some of that relevant material here, and discuss it in more detail below.
The applicant’s statement
Ms Bulghadaryan provides a statement dated 6 June 2024, setting out the background to her injury including the increase in duties occasioned by staff reductions. There is brief mention made of shoulder pain developing in 2020 due to the requirement to stack large numbers of files.
Reports of Dr Bodel
The applicant’s claim is based on an assessment of Dr Bodel. In his report dated 2 February 2024, he summarises the injuries as “gradual onset of neck and shoulder girdle pain. Right shoulder worse than left” and “lower back pain”. He explains how the injury occurred: “The nature of the work and the intensity of the heavy lifting and repetitive use of the arms at times overhead is outlined in the History section above”. He goes on to assessment in the body parts claimed.
In his updated report dated 2 September 2024, Dr Bodel provides the following in respect of the shoulders:
“Your client has rotator cuff pathology in both shoulders and the nature and condition of the work has caused aggravation, acceleration, exacerbation, deterioration to rotator cuff disease probably in the form of tendonitis bursitis in the circumstance. Underlying pathology aggravated by work is causing pain, stiffness and loss of function as I have indicated.”
Dr Bodel goes on to reject a connection between the cervical spine and shoulder pathology alone.
Reports of Dr Hale
The respondent relies on reports provided by Dr Hale (as well as Dr Walker). He takes a history of injury consistent with that recorded elsewhere. His first report is dated 8 December 2022. He comments on the diagnosis provided in a certificate of capacity:
“Dr Ekmejian’s diagnosis of neck strain and back injury are reasonable and consistent with the terms that I have used above. The symptoms certainly appears to be due to the repetitive nature that Anna has been required to do, particularly in an environment of an increased workload causation.”
In a report dated 30 April 2024, Dr Hale provides the following diagnosis:
“1. Soft tissue injury cervical spine.
2. Low back pain with no clear correlation to her employment.”
He rejects a connection between employment and the lumbar and shoulder conditions:
“It is reasonable to attribute the neck pain to the work-related injury in 2022 but there is no evidence of a specific shoulder pathology or lumbar condition.”
His supplementary report of 14 November 2024 largely reiterates his previous opinion and expresses disagreement with the assessment of Dr Bodel.
Reports of Dr Walker
Dr Walker is a neurologist. He also provides a number of reports for the respondent. He records the following history of injury in his report date 24 July 2023:
“There was no actual ‘injury’ on 8 August 2022 but rather that is the date Ms Bulghadaryan decided to choose. She had developed some neck pain in January but did not report it until she came back from holidays to Armenia for a month in September. Ms Bulghadaryan says that she also had lower back pain.
The first mention of any neck pain in her general practitioner records is actually 3 September 2022. No lower back pain is mentioned.”
In his report dated 18 October 2023, he opines: “There was no event that caused her presentation. She says that she developed pain whilst at work but we have no way to verify that. There was no pathology found.” He agrees with the diagnosis but suggests that “it has nothing to do with her work”.
Treating records
Ms Bulghadaryan has been treated by Dr Alan Nazha, a pain physician. Various reports appear dating from 12 January 2023. The focus of those reports is largely on the cervicothoracic pain which was said to be the worst, and always present. The lower back pain is also said to be present.
In a report dated 2 February 2023, Dr Nazha supports the connection between the pain she is experiencing in her lower back and neck with the work-related injury.
Ms Bulghadaryan also saw Prof Aggarwal, a neurologist and rehabilitation/pain medicine specialist. He also focuses on the cervical and lumbar pain Ms Bulghadaryan experiences. In a report dated 30 March 2023, he diagnoses a “chronic generalised neuropathic pain syndrome with central sensitization”. The remainder of the reports focus on the cervical and lower back pain.
Also before me are the clinical notes provided by Ms Bulghadaryan’s treating general practitioner. On 3 September 2022, the first attendance is recorded, relating to “neck pains, extending all the way down the spine”. A note on 7 September 2022 records “after working only two hours, gets neck pains, going down to shoulders, not to arms”. On 4 October 2022, the lumbar spine is included, where Dr Ekmejian records “done some job on lower back” and refers Ms Bulghadaryan for a CT of the lumbar spine.
SUBMISSIONS
The parties provided oral submissions during the hearing. Those submissions were recorded and I do not intend to repeat them here, but will briefly summarise the positions taken.
Applicant’s submissions
The applicant first noted that the cervical spine has been accepted but that the balance of the claim is disputed, and the lumbar spine only faintly so. The applicant referred to the statement noting that the work is not merely clerical work, and it got more onerous after 2021. In respect of the notification, whilst it only refers to neck strain, I would not regard it as a complete statement of the extent of injury, as it was summary and only a business record.
The applicant then went through the evidence in some detail, including the report of Dr Bodel, Dr Nazha, Prof Aggarwal, as well as briefly the clinical notes and radiology.
In respect of the reports of Dr Hale, it was submitted that although he says there is no clear pathology, he provides a diagnosis, and it would be difficult to contend that the lumbar spine is not a compensable claim. In the supplementary report there is a reference to radiating pain in her shoulder, but it is not explained why it is only radiated pain.
The applicant then referred to the reports of Dr Walker, submitting that his record of no complaint of lower back pain is inconsistent with the clinical notes. He hasn’t really engaged precisely with what the injury is in any of the body parts, but seems to support a nature and conditions claim. Further, he seems to misunderstand the nature of injury. The net of effect of the weaknesses of Dr Walker’s report is that it can’t deflect acceptance of Dr Bodel’s opinion.
The applicant submits that the respondent has no competing case theory but acknowledges that she bears the onus. In conclusion, it was submitted that there’s an accepted injury to the cervical spine, a partial acceptance in the lumbar spine which is vague and inconsistent on the medicolegal case, and I would accept Dr Bodel’s opinion, making an award in favour of the applicant.
Respondent’s submissions
The respondent, like the applicant, commenced by referring to the applicant’s statement. The respondent submitted that some of what is provided in the statement should be treated with caution. The applicant describes first getting lumbar spine symptoms, and then neck symptoms, which is in contrast with the clinical records where the applicant first complains in relation to her neck, and then a month later in relation to her back, after she left work.
The respondent referred to the report of Dr Hale, submitting that part of his reasoning process is the radiology before me, none of which supports the pathology in the applicant’s back or shoulders.
Whilst the applicant has complained about her lumbar spine, those complaints are post ceasing work – none of the evidence is reflective of her statement that she has had pain in her spine since 2017. Further, there is no pathological evidence that there is anything wrong with the lumbar spine.
In relation to the shoulders, there is only one doctor who says that there has been an injury to the shoulders. The respondent referred to the reports from treating doctors, which only refer to lumbar and cervical neck pain. Dr Walker treats the applicant’s presentation with caution, noting that symptoms have evolved, even though she isn’t at work. This is also reflected in Dr Hale’s opinion.
Dr Bodel is the only doctor who says there is rotator cuff pathology in the shoulders. This is not reflected in any other report or investigation conducted by any of the treating doctors. There is simply no basis for finding that the applicant has rotator cuff pathology in both shoulders, particularly given the complete lack of complaint to any treating doctor. There is a sufficient basis to attribute the applicant’s claimed shoulder injury to work. The only thing that is in the medical records arises from the neck. The certificates of capacity also only relate to the lumbar spine and neck.
Applicant in response
Regarding the chronology of onset of cervical and lumbar symptoms, it was submitted it is fairly clear that they are relatively contemporaneous.
In respect of Dr Bodel being the only doctor who supports the claim for the shoulders, he is the only expert that has given a persuasive opinion to the Commission. The other experts’ failure to take a proper history, with the result that I would prefer Dr Bodel’s opinion.
In respect of the certificates of capacity, one most look at the context in which they are prepared.
FINDINGS AND REASONS
The parties approached this dispute by providing submissions addressing both shoulders together, separate to the lumbar spine. This is consistent with the evidence provided by the parties and how I propose to deal with the issues in dispute. The cervical spine has been accepted as an injury by the respondent, and there are aspects of this decision that will require reference to that injury.
The lumbar spine
I agree with the applicant’s general submission that the lumbar spine is only faintly disputed by the respondent. It is disputed nonetheless and it is an issue that requires determination.
Dr Hale, in his report dated 8 December 2022, initially appears to accept injury to the lumbar spine (or at least the presence of symptoms attributable to an overuse injury):
“Anna does describe persistent symptoms affecting her cervical spine and subsequently the lumbar spine which can be attributed and described as an overuse injury, particularly associated with the use of a mechanical hole puncher as well as pulling and refiling medical records.”
By 30 April 2024, Dr Hale’s diagnosis is “Low back pain with no clear correlation to her employment”. He says there is “no evidence of a… lumbar condition” and “no clear indication of… lumbar pathology”.
Dr Walker provides a more thorough rejection of the connection and claim made by the applicant. One of the issues that I take at the outset with Dr Walker’s opinion is that he has approached the issue incorrectly. This is evident from his opening paragraph concerning the history of injury where he states:
“There was no actual ‘injury’ on 8 August 2022 but rather that is the date Ms Bulghadaryan decided to choose. She had developed some neck pain in January but did not report it until she came back from holidays to Armenia for a month in September. Ms Bulghadaryan says that she also had lower back pain.”
Many of his answers to specific questions state “there was no particular injury” or the like. This is further evident in his report dated 18 October 2023:
“I do not agree with Dr Nahza. I do not understand why he would think that there was some ‘injury’ whilst in a clerical job that caused pain in her neck, arms, back and right leg.”
He goes on to answer a question about substantial contributing factor:
“Her employment has not been a substantial contributing factor. There was no injury. There were no abnormalities of examination or imaging that represented any injury. The symptoms may have developed outside of the workplace and we have no way of verifying that.”
This focus on a lack of specific “injury” has misled the doctor in the conclusion he reached. Ms Bulghadaryan has never alleged that there was a specific injurious event, being an injury in accordance with s 4(a) of the 1987 Act. It has always been alleged as a gradual onset condition, being a disease or aggravation of disease type case. There is no specific incident to report as the duties of her employment, over a period of time, cause her injury (as she claims).
I would also note that Dr Walker has dismissed the applicant on the basis of what he describes as a “clerical job”. It is accepted that in general terms that the role Ms Bulghadaryan occupied was clerical in nature. However, describing it in the almost dismissive terms, as Dr Walker has done, belies the actual nature of the work, which is undisputed. Ms Bulghadaryan’s statement explains this best, and it involved moving large amounts of physical files in boxes. This is not typical “clerical” work or the type of work all the doctors would be familiar with in record keeping for a modern hospital. This is physical work, in an antiquated system, that over time got heavier and heavier due to departures and resourcing issues.
As such I cannot accept Dr Walker’s opinion. He has not properly considered the actual duties performed by Ms Bulghadaryan and his conclusion is based on an incorrect history. Further, he has misunderstood the nature of injury as defined in the 1987 Act, as opposed to the generally understood definition of injury being a specific incident or blow.
In terms of medico-legal opinions, that leaves Drs Bodel and Hale. I have already noted that Dr Hale’s rejection of the injury as claimed is not particularly forceful. He supports her claim at least symptomatically, if not on the basis of a strong causal chain. He suggests there is no clear lumbar condition or pathology, but that is not explained and is inconsistent with the history he takes from Ms Bulghadaryan of low back pain.
Dr Bodel meanwhile takes a full history of the nature of Ms Bulghadaryan’s duties and the work she performed. He notes that “As a result of this, they are left therefore handling very large files”. He records the increase in filings in conjunction with the loss of staff.
Dr Bodel specifically deals with the opinion of Dr Hale and why he disagrees with it. He explains:
“This history of this lady’s injury is quite specific. She has had a very heavy work load which increased dramatically over a period of years. I believe that is causative to the pathology of the neck, back and shoulders by way of aggravation, acceleration, exacerbation, and deterioration to underlying disease processes. I acknowledge that the investigations show minimal changes and not much more than one would expect for a person of this age but I am still satisfied that the nature of the work based on the history that I have been given as to the work and the difficulty associated with it particularly after an almost doubling of the workload and one third of the workforce was not replaced.”
I am satisfied that Dr Bodel has taken a full history of duties performed and reached an appropriate conclusion considering the history and material before him. I give more weight to his opinion that those proffered by the respondent for that reason.
I accept the respondent’s submission that I should treat Ms Bulghadaryan’s statement with caution. I have done so and agree that there is a degree of inconsistent in how she initially reports the onset of pain in her back with that recorded in the clinical notes. I do not think that undermines Ms Bulghadaryan’s case so significantly as to make it unacceptable. It may be that she experienced some minor pains in 2017 or so that were manageable.
I would note that Ms Bulghadaryan’s claim in the lumbar spine is not limited to the medicolegal opinion provided by Dr Bodel. She finds support in her treating specialists. Dr Nazha takes a history of injury including the onset of lumbar spine pain. His impression on 12 January 2023 is “Her lumbar back pain may be discogenic, however, we should be ruling out any significant contributors and it will be worthwhile for her to have a SPECT-CT bone scan”.
Dr Nazha, responding to questions raised by the respondent’s insurer, states:
“At no time have I stated that I do not feel that her pain is not related to her work-related injury. She has been thoroughly assessed by other clinicians involved in her care and her presentation is consistent with that of a work-related injury”.
Dr Aggarwal does not as specifically deal with the causal question as provided by Dr Nazha, but treats Ms Bulghadaryan throughout the period of treatment as though the injuries are work related. The history he records in his report dated 30 March 2023 is consistent with that recorded elsewhere, being gradual onset of pain. He provides:
“She feels that the work that she was involved in in the Medical Records department, which involved bundling the files, putting files away and taking files from the shelf up to 300-400 times aper day resulted in her symptoms.”
True, this is a record of what Ms Bulghadaryan “feels” but Dr Aggarwal does not reject or disagree with this opinion.
The clinical notes of Ms Bulghadaryan’s treating GP also support her claim. Dr Ekmejian first records complaints in the cervical spine and then approximately a month later, the lumbar spine. On 13 October 2022 it is recorded “insurer must include back pains as part of work-related injury”.
I do not think that the fact that the first recorded complaint was made shortly after the applicant ceased work defeats her claim. It is reasonably contemporaneous and is dealt with by the medical and medicolegal evidence. The cervical symptoms were clearly more significant and that time and based on the reports before me, have continued to trouble Ms Bulghadaryan more than those in her lumbar spine.
For the above reasons, I am satisfied that Ms Bulghadaryan suffered an injury to her lumbar spine in the course of her employment with the respondent, to which employment was the main contributing factor. The lumbar spine will be referred for an assessment of whole person impairment.
Left and right shoulders
The applicant’s case for the shoulders has been presented as if both were injured in the same way through the same mechanism and I will accordingly deal with them together.
The applicant’s case for injury in the shoulders is significantly less convincing than in the lumbar spine. She has the onus to prove her case, and although the standard of proof is on the balance of probabilities, it is still her onus to prove.
The applicant’s statement touches on her shoulder problems sparsely. She states:
“I was required to regularly bend and reach above shoulder height for files in the compactus. Due to my lower back pain, I changed my job from mainly pulling out files to stacking files. In 2020, I also began to experience neck and shoulder pain as I was stacking 50-60 files per day. I complained to my manager at the time, but this did not resolve the problems.”
The applicant first attended on her general practitioner on 3 September 2022. That record does not refer to problems in the shoulders. On 7 September 2022 Ms Bulghadaryan again attends her general practitioner. The clinical note of that date records:
“…very heavy duties
after working only two hours, gets neck pains, going down to shoulders, not to arms
better on weekends when she is not working”
That is the only reference to the shoulders that appears in the clinical notes. It is unclear whether it is pain coming down from the neck or pain in the shoulders arising from pathology in that body part.
Dr Bodel is the only medico-legal assessor who supports a finding of injury in the shoulders. He takes a history of injury of “gradual onset of neck and shoulder girdle pain, arm pain and back pain… the nature of the work and the intensity of the heavy lifting and repetitive use of the arms at times overhead is outlined in the history section above”. In his supplementary report dated 2 September 2024 Dr Bodel records:
“Your client has rotator cuff pathology in both shoulders and the nature and condition of the work has caused aggravation, acceleration, exacerbation, deterioration to rotator cuff disease probably in the form of tendonitis bursitis in the circumstance. Underlying pathology aggravated by work is causing pain, stiffness and loss of function as I have indicated.”
He also opines that the bilateral pain has not resulted from the cervical spine pathology alone.
None of the treating specialists refer particularly to any problems in the shoulders. Dr Nazha, at the highest, provides that “Intermittently, she states there is pain that radiates down interscapularly” (the scapula being the shoulder blade). That would support a conclusion that the pain is radiating from the neck, rather than being distinct pathology in the shoulder.
I have discussed the medico-legal opinions in relation to the lumbar spine, above. As I said, I do not find Dr Walker’s opinions particularly persuasive. He has focussed on injury as being a specific event rather than the gradual process type of injury Ms Bulghadaryan claims. I preferred the opinion of Dr Bodel in relation to the lumbar spine, as it found support in the treating evidence.
Dr Hale’s opinion in respect of the shoulders is similar to his opinion in the lumbar spine; that is a lack of shoulder pathology. In respect of the shoulders, this is much more persuasive. There are no specific investigations undertaken in respect of the shoulders. There is no particular pathology identified in any of the treating material, other than some referred pain. Dr Bodel describes rotator cuff pathology but does not say what that pathology is.
He opines that there has been a deterioration of “rotator cuff disease probably in the form of tendonitis bursitis” but that is an inconclusive “probably” diagnosis and is made without reference to any treatment, investigations or firm diagnosis in the shoulders.
In the absence of any treating material supporting a finding, and where Dr Bodel has reached his conclusion in a bare way without real explanation as to his diagnosis, I am not satisfied that Ms Bulghadaryan has suffered an injury to either shoulder, on the balance of probabilities.
SUMMARY
I am satisfied that Ms Bulghadaryan suffered an injury to the lumbar spine arising out of or in the course of her employment with the respondent, to which employment was the main contributing factor.
I am not satisfied that Ms Bulghadaryan suffered an injury to either shoulder.
The matter will be referred to a Medical Assessor for assessment on the basis of my findings above, including the agreed injury to the cervical spine.
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