Carbery v Westpac Banking Corporation
[2021] NSWPIC 97
•27 April 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Carbery v Westpac Banking Corporation [2021] NSWPIC 97 |
| APPLICANT: | Dong (Donna) Carbery |
| RESPONDENT: | Westpac Banking Corporation |
| MEMBER: | Ms Rachel Homan |
| DATE OF DECISION: | 27 April 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for lump sum compensation pursuant to section 66 of the 1987 Act in respect of disputed injury to the right shoulder, cervical spine and bilateral feet due to nature and conditions of employment; injury to each body part notified and the subject of compensation claims at different times; whether discrete injuries; whether applicant barred from recovering compensation by section 261 of the 1998 Act; Held- applicant sustained injury to all body parts due to nature and conditions of employment; deemed date of injury is date of claim for lump sum compensation pursuant to section 16(1)(a)(ii) of the 1987 Act; section 261(3) applied; matter remitted to President for referral to Medical Assessor. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to her right shoulder, both feet and cervical spine in the nature of an aggravation of a disease due to the nature and conditions of the applicant’s employment with the respondent between 13 July 2015 and 26 June 2016. 2. Employment with the respondent was the main contributing factor to the aggravation for the purposes of s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act). 3. The injury is deemed pursuant to s 16(1)(a)(ii) of the 1987 Act to have occurred on 2 April 2019 when the claim for lump sum compensation pursuant to s 66 of the 1987 Act was made. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: Nature and conditions of employment between 13 July 2015 and 26 June 2016 (2 April 2019 deemed) Body parts: Right upper extremity (shoulder) Cervical spine Method: Whole Person Impairment. 5. The materials to be referred to the Medical Assessor are to include: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents other than the report of Dr Richard Powell dated 11 May 2016 from the heading “Diagnosis” at p 3 of the report onwards; c. documents attached to an Application to Admit Late Documents lodged by the applicant on 5 January 2021, and d. documents attached to an Application to Admit Late Documents lodged by the respondent on 12 January 2021. |
STATEMENT OF REASONS
BACKGROUND
Ms Dong (Donna) Carbery (the applicant) was employed as a Customer Service Officer by Westpac Banking Corporation (the respondent). The applicant claims to have sustained an injury to her right shoulder, cervical spine and plantar fasciitis in both feet as a result of the nature and conditions of her employment.
On 2 April 2019, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the alleged injury in reliance upon an assessment of 22% whole person impairment (WPI) by Dr James Bodel.
Liability to pay compensation for an injury to the applicant’s right shoulder had previously been accepted by the respondent’s insurer. Subsequent claims in respect of the neck and feet had been declined.
The respondent’s insurer declined liability to pay the lump sum compensation claimed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 19 June 2019.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 4 November 2020. The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.The applicant seeks lump sum compensation in accordance with Dr Bodel’s assessment.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant has sustained injury to her right shoulder, cervical spine and feet as a result of the nature and conditions of her employment as alleged;
(b) whether there has been a failure to comply with the claim provision in s 261 of the 1998 Act;
(c) whether there are multiple discrete injuries and, if so, whether they are capable of being assessed together, and
(d) the degree of permanent impairment.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 21 January 2021. The applicant was represented by Mr Stephen Hickey of counsel, instructed by Ms Meg Ross. The respondent was represented by Mr Fraser Doak of counsel, instructed by Mr Conor Tomkins. On that occasion, due to technical difficulties with the Audio Link, the arbitration hearing was unable to be completed.
The proceedings were adjourned to 17 February 2021. On that occasion, the applicant was able to make oral submissions. The respondent was, however, unable to complete its submissions within the time available. Directions were made for the lodgement of written submissions from the respondent and written submissions in reply from the applicant. The parties were informed of my intention to determine the matter at the conclusion of the timetable allowed.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and taken into account in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents other than the report of Dr Richard Powell dated 11 May 2016 from the heading “Diagnosis” at p 3 of the report onwards;
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 5 January 2021;
(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 12 January 2021, and
(e) written submissions lodged by the respondent on 8 March 2021.
Neither party applied to adduce oral evidence or cross examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in a written statement made by her on 17 January 2019.
The applicant stated that she commenced employment with the respondent in 2000 as a Customer Service Officer. The applicant was transferred into various roles in various locations before moving to the North Sydney branch in May 2015.
The North Sydney branch was extremely busy and short staffed at the time. The branch started a policy of using only one cash drawer from 1 June 2015. Due to difficulties balancing the cash drawer, the branch manager decided the applicant would be the only person to deal with the cash drawer. The applicant would work through her lunch break for cash transactions. As a result, the applicant was allowed to leave as soon as she had completed the cash balance. The branch normally closed at 4.00pm.
The branch in North Sydney serviced lots of small businesses, such as cafés and shops, which would bring in heavy coins to change. The applicant had to work quickly and performed a lot of transactions. The counter was very narrow and her arms were always high in order to serve customers through the window. The whole day, the applicant’s arm did not get any rest.
The applicant noticed her right shoulder was becoming sore. The applicant eventually told her regional manager about her shoulder problem and was escorted to the company nominated doctor, Dr Sim, by her branch manager.
Against Dr Sim’s advice, the applicant continued to work on the counter. In October 2015, the applicant’s work hours reduced to six hours per day due to the shoulder injury.
In November 2015, the applicant moved to the Crows Nest branch, however this branch became more busy following the closure of the North Sydney and Chatswood branches for renovations. The applicant was directed to go on the counter again despite her treating doctor’s restrictions. The applicant’s hours were reduced to four hours per day.
The applicant was asked to work between 10.00 and 10.30 am until 3.30 pm without any break. This meant the applicant was covering lunch, which was the busiest time at the Crows Nest branch. The applicant underwent an MRI which revealed that the applicant’s shoulder was getting worse.
The applicant was then moved to permanent concierge duties, which involved greeting customers and taking enquiries. The applicant found that her feet would get sore after standing all day. The applicant consulted her general practitioner and was told she had plantar fasciitis.
On 8 December 2015, the applicant fell over whilst trying to sit on a high chair. The chair had been extended to its maximum height to suit the height of the concierge workstation. The applicant had been unable to steady herself in attempting to sit on the chair because of her shoulder injury. As a result of the fall, the applicant’s head hit the wall behind her, breaking her hair clips.
Following the fall, the applicant’s chair was replaced with a visitors’ chair which was quite low and not ergonomically suitable for the concierge workstation. The chair was given to the applicant after she reported her plantar fasciitis and was one normally used by customers waiting to be served. The concierge desk was designed to be a standing desk and the desktop was very high. This made work very uncomfortable and inconvenient. As the applicant did not want to injure her feet, she sat in an awkward position for about four months.
The applicant’s physiotherapist noted the applicant’s condition was getting worse and asked her to take pictures of her workstation. There was nowhere for the applicant to rest her shoulder, wrist or arms and her head was constantly tilted back to look up at the screen whilst typing. The applicant’s doctor requested that an ergonomic assessment of the workstation be performed. The ergonomic assessment showed that the applicant was sitting in the wrong position for too long and the concierge workstation was not designed for work with a visitors’ chair. It was recommended that the applicant have a foot rest, wrist support and telephone headset.
Instead of these adjustments being made, the applicant was told that there was no position for her and she did not have to come to work from that day onwards.
After two weeks at home, the applicant was returned to the North Sydney branch to make sales calls. During this time, the applicant received numerous calls from her case managers every day and had to attend a large number of medical appointments. The applicant became panicked and afraid to go to work. The applicant’s leg would shake and she felt she couldn’t breathe. The applicant was very emotional and was diagnosed by her doctor with an adjustment disorder.
The applicant said she continued to experience pain in her neck, upper back and down her right arm radiating from her shoulder. The applicant had pins and needles in her fingers, hands and arms. The applicant’s right foot was still painful although her left foot had improved somewhat. The applicant was taking a lot of medication and experiencing panic attacks which was impacting her daily life and making her drowsy, dizzy and causing her to experience constipation and diarrhoea.
Ergonomic assessments
The applicant relies on an Ergonomic Assessment Report for her workstations at the Crows Nest branch, prepared by DOS Consulting, dated 1 June 2016. The report records a history as follows:
“Donna advised that she originally injured her right shoulder in July 2015 while working as a CSO and has been following a suitable duties plan since then that involved alternating between back of house (BOH) duties, short periods on the teller and the concierge role. Following the temporary closure of a neighbouring branch Donna said her branch became a lot busier and she found her symptoms increasing. From February 2016 her hours were reduced to four hours a day and she was advised to avoid the teller counter and to alternate between BOH and the concierge role.
She explained that she started to experience pain in her feet and was diagnosed with plantar fasciitis in both feet affecting her right foot more than her left. At that time she said she was wearing very flat shoes and she now uses what she describes as an insole with arch support. She feels her standing tolerance is around 15 minutes.
Donna said she started to use a teller chair at the concierge desk so she could serve while sitting down. While working at this desk and using the phone Donna fell off the chair and has since been advised she is not to use the teller chair at this desk for her own safety.
…
Donna explained that she then started to use a visitors chair to sit on and adapted the concierge desk so she could stay sitting on the chair while serving by using the keyboard and mouse on the lower level pull out printer shelf. She advised that she is now experiencing discomfort in her upper back, neck and right shoulder.In her current role Donna explained that transactions with customers can range from
5 - 10 minutes for simple enquiries such as a balance, 35 minutes for disputes or up to 60 minutes for fraud issues. She tries to use one of the front of house (FOH) offices when it is available and said that when working from the office she is up and down from her chair regularly as she always gets up to meet, greet and walk customers to and from the branch heart.”The report found:
“At the FOH office desk Donna was observed using many postures and work practices that could aggravate her reported symptoms and increase her risk of additional musculoskeletal discomfort if not altered as described in Table 1. In addition, review of Donna's photos showing her working at the concierge desk indicates she was using very awkward postures and movements related to how she had adapted the desk set up and use of a chair to help rest her feet. Nb: It is not anticipated this desk was designed for use with a chair, rather it is a stand up only desk as it has a flush counter with no forward knee/leg space and use of a chair is contraindicated with this design.”
In a further report dated 27 June 2016, it was noted that some minor adjustments were required at the applicant’s new workstation at the North Sydney branch. It was observed:
“Donna explained that she is continuing to feel pressure on her neck and increasing symptoms between her neck and right shoulder and fees like she wants to rest her neck on something or even use a neck brace for support. She was using very stiff and guarded movements which may in fact be exacerbating her symptoms. Donna seems to be really trying to sit back and relax against her chair back but still has a slight habitual tendency to lean forward which pushes her chin forward and increases pressure on her neck and lower back.”
Claims history
The applicant completed a “Worker’s Injury Claim Form” on 19 August 2015 in which she reported a “right shoulder girdle muscle sprain”, with a date of injury of 13 July 2015, which occurred due to:
“Non stop working since 13-07-2015 without any break including lunch break due to shortage of staff. stuck in the one position. excessive use of right arm. usually l get lunch break.”
On 26 May 2016, the respondent’s insurer issued a dispute notice in respect to an injury to the applicant’s feet notified on 18 February 2016. There is no claim form relating to the feet in evidence but the injury was described in the dispute notice as follows:
“…from the commencement of working Suitable Duties for your ongoing shoulder injury claim, you reported the gradual accumulation of bilateral plantar heel pain.”
On 31 May 2016, the applicant notified an injury to her “upper back and cervical spine” in an email which stated:
“I would like to report a new injury of severe pain to my neck and upper back as my current work station is not ergonomically correct and totally does not comply with the Westpac Bank work health and safety standard, after I already have a work injury for my right shoulder.
My Doctors ‘Suitable Duties Plan’ advises ‘Combination of back of house duties, phone calls and short periods completing concierge duties’. Contrary to this advice my duties to date have comprised of a straight 4 hours of concierge duties without any break. Given that the Concierge work station does not comply with ergonomic principles suitable to my current injuries, my injury condition is not improving but getting worse and has also created new injuries with plantar fasciitis injury, neck pain and upper back pain.
The concierge workstation does not comply with ergonomic principles with the chair provided. It is unhealthy and not safe, however it has been my work station for more than 4 months. The height of the chair provided requires my head to be constantly tilted back to enable me to look up at the screen, and the keyboard has to be placed on a shelf which allows no wrist or arm support. Please note that it was lack of support provided to my wrist and arm when using a keyboard which resulted in my original injury.”
On 14 November 2016 and 30 January 2017, dispute notices were issued in respect of an upper back and neck injury claimed on 31 May 2016.
On 19 June 2019 a dispute notice was issued in which it was determined that the respondent was not liable to pay compensation in respect of:
“…the alleged plantar fasciitis, cervical spine and upper back injuries. We have determined that you have not sustained an injury, of the nature of a disease, due to the nature and conditions of your employment such that there could be a deemed date of injury. We have determined that you do not have an entitlement to permanent impairment compensation”
Treating medical evidence
Clinical records from Forum Medical Centre are in evidence but are not individually dated. An initial consultation, which appears to have occurred on 22 July 2015, was recorded as follows:
“Patient works as a bank teller at St George-Westpac in North Sydney. Pain in R shoulder for over 1 week. No h/o recent injuries. Patient had been attending to customers non-stop since 13/7/2015 without lunch break due to short staff, stuck in one position. Excessive use of right arm. Usually Patient gets lunch break.
Objective: Pain and tenderness over R shoulder girdle.”There then followed a series of consultations and case conferences in which continuing right shoulder pain of varying degrees was reported. Complaints of the applicant’s manager not complying with work restrictions and complaints about the applicant’s case officer’s handling of her case are also recorded. Following an MRI, the applicant was referred to orthopaedic surgeon, Dr Allan Young.
On 27 November 2015, Dr Young wrote to the applicant’s general practitioner, Dr Kian Yan Ya Sim, giving a history of the applicant’s right shoulder symptoms as follows:
“As you are aware Donna has reported right shoulder pain for the last five or six months. She denies any specific or traumatic event at the onset. Donna relates the commencement of her pain to overuse at work. She reports that her place at work were short staffed at the time. The pain that Donna describes is in the upper lateral, anterior and periscapular region of the shoulder. She describes constant pain including night pain. There was no paraesthesia.”
Dr Young noted that an MRI scan had been performed demonstrating tendinopathy of the rotator cuff and a small intrasubstance delamination of the supraspinatus. Based on the clinical examination, Dr Young considered the applicant’s presentation was in keeping with adhesive capsulitis or frozen shoulder. The applicant’s pain could be attributed to the tendinopathy seen on the MRI.
Dr Young performed a subacromial cortisone injection which gave partial relief. Dr Young recommended an ultrasound guided cortisone injection of the glenohumeral joint, physiotherapy and restriction of work duties to avoid overhead activities, pushing, lifting and repetitive reaching. It was noted that the applicant felt her shoulder symptoms had improved with time away from work.
At a review on 19 January 2016, Dr Young noted that the applicant’s symptoms were somewhat improved although she was still bothered by pain in the upper lateral aspect of the arm. Dr Young noted that the applicant was reluctant to undergo further injections. Dr Young recommended that the applicant avoid repetitive activities away from the body or at shoulder height or above.
Recurrent shoulder pain was reported to Dr Young again on 12 April 2016.
On 27 April 2016, another general practitioner, Dr Frank Zhu, responded to a series of questions from the insurer with respect to the applicant’s claim for plantar fasciitis, making a diagnosis as follows:
“Right plantar fasciitis – pain to right sole of heel. Aggravated by standing and walking.”
The applicant’s treatment was said to consist of anti-inflammatory medication (Mobic) and Dr Zhu suggested an ultrasound guided steroid injection.
With regard to the causal relationship to work, Dr Zhu responded:
“She stated she stand long time at work that make the pain worse.
…
She first saw me on 23/02/2016 with complain of pain to both feet after long hours of standing.
…
She stands on feet most of the day at work, so the main cause of the problem should be work related (unless she works only part time).
…
As she needs to stand and walk at work, the pain will be severe and will prevent the healing. If she can get a duty mainly sitting – she can do these suitable duties.”Around this time, Dr Sim recorded a consultation with the applicant as follows:
“Patient c/o persistent pain in R shoulder / right shoulder girdle. Patient presented with photographs and diagrams of her workstation which is unsuitable. Patient had been using the workstation since 8/2/2016. Patient spoke to her manager Sean and Injury Manager Jessica regarding her inappropriately-set-up workstation but was dismissed.”
On 8 June 2016, Mr Joshua Parslow, physiotherapist, reported to Dr Sim, that the applicant reported symptoms as follows:
“Donna is still complaining of pain mostly with prolonged posture and overhead movements. She now complains of some pins and needles and numbness in the tips of her fingers when she sits for a prolonged period.”
Mr Parslow recommended:
“I have encouraged Donna to stay active and vary her posture at work. I understand she has had an ergonomic assessment of her workplace, which upon looking at her workstation I encourage. Overall, I feel that Donna has made slower than expected progress with her rehabilitation. This may be attributed to the slow response to her work station, the potential for frozen shoulder, and the resistance to cortisone injection.”
Around this period, Dr Sim recorded:
“I Returned call from Injury Manager Jessica 0413673253. According to Jessica, Patient had been using a concierge desk as her workstation since 2/2016 by her own choice, despite the fact that she was advised not to do so as it would be inappropriate to do so. Patient chose to do so as she had difficulty standing due to pain caused by plantar fasciitis. Patient was supposed to stand when using concierge desk. At present, Patient was advised not to return to her current workplace as there is no suitable duties for her.”
In a further consultation with the applicant, which is set out in a letter of referral to a physiotherapist dated 10 June 2016, Dr Sim recorded:
“Patient said she had been standing at concierge desk for 4 hours since 8/2/2016. After 5 days, she started complaining of pain in her feet. She saw her GP after having the pain for another 3 days and was diagnosed with bilateral plantar fasciitis. Her LMO issue a MC limiting standing for up to 30 mins. Since then she was provided with a chair by her manager Sean, to sit at concierge desk. The concierge desk is not ergonomically designed to be used with the chair given to her. The concierge desk was designed to be used with the user standing up. Patient started c/o pain in R upper back and R side back of neck at end of April 2016. Patient told her physio about the matter a few days following onset of the complaint. Objective: Slightly tender over R side of trapezius, pain aggravated by movement of R shoulder and the neck.”
On 25 July 2016, Dr Young noted that a repeat MRI scan of the right shoulder demonstrated a progression in the intrasubstance delamination tear of the supraspinatus since the previous scan. On this occasion, Dr Young also noted an MRI scan of the cervical spine was reported to show mild foraminal narrowing at C5/6. The applicant reported intermittent paraesthesia about the upper arm and it was suggested that the applicant be referred to a neurologist.
Around this time, Dr Sim noted:
“C/O throbbing pain on R side of neck, R trapezius, associated with radiation of the pain and tingling sensation down R arm to tips of all digits and thumb, for 4 days, constant. Severity pain rated 8/10. The pain is worsened by sleeping, pulling Theraband with R hand as advised by physio, using R hand while cooking, eg stiring soup, chopping vege.
…
Very tender with increased muscle tone on R side of back of neck, R trapezius. Sensation in R palm, R forearm , R upperarm, R upper chest, R side front of neck - much stronger than the left side.”On 26 September 2016, the applicant’s psychiatrist, Dr Anita George prepared a report for the respondent’s claims consultant setting out a history of the applicant’s physical injuries. In particular, Dr George took a history of the right shoulder symptoms whilst the applicant was working at the North Sydney branch. After her doctor placed her on five weeks’ long service leave, the applicant returned to the Crows Nest branch in November 2015 where she was given different duties:
“Her work conditions were 4 hours/day for 5 days/week, not to include working at the counter and to include working with rotating tasks. December 2015 saw an increase in the work load at Donna's home branch due to other branch closures/renovations. The increased busy nature of the Crows Nest branch ended up with Donna's managers not ensuring that her restricted work conditions were adhered to. Meaning that without rotating tasks and without considering her restrictions, Donna suffered increasing and new symptoms directly attributable to the above lack of considerations, over the next four months. She was not allowed to sit and was forced to work at desks without safe ergonomic height standardisations - all giving rise to foot/leg pain, as well as subsequent back and neck pain.”
After further complaints to Dr Sim of persisting pain on the right side of her neck and right trapezius, the applicant was referred to neurologist, Dr Timothy R Steel.
Dr Steel prepared a report for Dr Sim on 9 November 2016. Dr Steel took a history of the applicant developing neck pain on 31 May 2016, noting:
“Initially symptoms occurred around the shoulder but now she reports typical right arm brachialgia with radiation down the arm into the hand into the C6 dermatome. She reports paraesthesiae in the thumb, index and middle finger of the right hand.”
Dr Steele considered an MRI of the cervical spine performed on 9 July 2016 which showed mild disc desiccation and mild foraminal stenosis at C5/6. The applicant reported that her symptoms had progressed significantly and so Dr Steel recommended an updated cervical MRI scan.
In a report dated 18 April 2017, Dr Young reported that the applicant’s right shoulder remained symptomatic. Dr Young suggested that the applicant should consider surgery in the nature of arthroscopy and likely subacromial decompression if her shoulder did not settle.
On 16 November 2017, Dr Young noted that the applicant continued to remain symptomatic in her right shoulder. The applicant’s clinical presentation was consistent with rotator cuff impingement syndrome and associated bursitis. The applicant had tried both physiotherapy and cortisone injection without improvement in her symptoms. The applicant was not, however, keen on surgical intervention.
Dr Young saw the applicant on 17 October 2018 with repeat imaging of her right shoulder and cervical spine. The MRI of the shoulder showed no significant change since the last MRI. The MRI scan of the cervical spine demonstrated a more prominent disc bulge at C5/6 with some C5/6 foraminal narrowing. Dr Young recommend that the applicant return to see Dr Steel.
Dr Steel saw the applicant on 18 February 2019, noting that he had last seen the applicant in November 2016. Dr Steel noted that the applicant had initially developed neck pain on 31 May 2016 in the course of her workplace and continued to report significant pain. The MRI scan performed on 12 September 2018 showed prominent disc bulge at C5/6 causing foraminal stenosis more marked on the right side. Dr Steel considered that the applicant’s most prominent pain was arising from her shoulder and considered that the applicant should proceed with shoulder surgery as discussed with Dr Young.
Dr Bodel
The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr James G Bodel, dated 4 June 2018.
Dr Bodel took a history of the applicant developing a gradual onset of pain in the right shoulder, feet and neck over time. This was associated with the nature and conditions of the applicant’s work in general. The applicant had worked for a lengthy period in early 2015 without appropriate lunch breaks in a branch which was understaffed. The applicant complained of a gradual onset of right shoulder girdle pain beginning in early 2015, becoming severe by 20 June 2015.
The applicant was seen by Dr Sim and sent for physiotherapy. The applicant was referred to orthopaedic surgeon, Dr Young. Injections of hydrocortisone gave some temporary benefit of two or three days only before the pain returned. The shoulder became increasingly stiff.
Within eight months of the onset of shoulder pain, the applicant began to develop increasing neck pain. In addition, the applicant developed a gradual onset of pain in the heels. The applicant had been diagnosed with plantar fasciitis which had come on because of the nature of her work, standing and walking. The applicant had been referred to Dr Steel who had discussed treatment options for the cervical spine. Since ceasing work, the applicant’s symptoms had improved a little and her pain was easy to manage.
Dr Bodel recorded that the applicant was previously quite well and was not being treated for other illnesses at the time of the onset of her symptoms.
Dr Bodel recorded the applicant’s complaints of symptoms, performed an examination and considered MRI scans of the cervical spine and right shoulder. Dr Bodel considered a range of other documentary evidence including the ergonomic workstation evaluation done on 1 June 2016 and made a diagnosis as follows:
“The diagnosis here is a rotator cuff injury to the region of the right shoulder with tendonitis, bursitis and the complication of adhesive capsulitis (a frozen shoulder).
In regards to the neck she has degenerative disc disease which has been aggravated by the nature and conditions of her work.
There is evidence of aggravation, acceleration, exacerbation and deterioration of that disease process in the cervical spine caused by the nature of her work in general.
The period of work where she had to stand for prolonged periods as a door greeter has induced plantar fasciitis in both heels.”
Dr Bodel gave the opinion that the nature and conditions of the applicant’s work was “the main contributing factor” to the aggravation, acceleration, exacerbation or deterioration in all of the injured areas. Dr Bodel said the pathology in all areas was a disease process of gradual onset rather than a frank injury:
“This includes the right shoulder with the rotator cuff pathology and associated adhesive capsulitis, the cervical spine where there is aggravation, acceleration, exacerbation and deterioration of a disease process being the degenerative disc disease at C5/6 and in the heels there is the gradual onset of pain in both heels associated with plantar fasciitis which is again a disease process of gradual onset.”
Dr Bodel made an assessment of 22% WPI.
Dr Powell
The respondent’s insurer qualified orthopaedic surgeon, Dr Richard Powell to prepare a medicolegal report which was done on 11 May 2016. Dr Powell’s report was admitted into evidence in these proceedings on the basis of the history recorded therein only, pursuant to cl 44 of the Workers Compensation Regulations 2016.
Dr Powell recorded a history of the development of right shoulder symptoms in July 2015 and the referral to Dr Young. The applicant’s hours were reduced and she was moved from the teller and placed on concierge duties, which initially required her to stand for the duration of her four-hour shift. The applicant reported the gradual accumulation of bilateral plantar heel pain and was reviewed by her local doctor, Dr Zhu. Dr Zhu diagnosed plantar fasciitis and provided her with anti-inflammatories although these were discontinued as they upset the applicant’s stomach. The applicant was consequently provided with a chair, which she was able to use when there were no customers requiring attention.
Dr Powell recorded the applicant’s symptoms as involving the following:
“Ms Carbery continues to complain of bilateral plantar heel pain. Symptoms are similar in character and location though currently more severe on the right side. The pain is
well-localised to the plantar aspect of the heel. It is worse first thing in the morning, after periods of prolonged standing and walking, and when she gets up after a period of rest. She is not aware of any significant stiffness or restriction in range of motion. She reports no instability. There is no paraesthesia or pins and needles.”Dr Powell noted that the applicant was most compliant and cooperative during the history and examination and there was no suggestion of overreaction or exaggeration.
Dr Coroneos
On 10 October 2016, neurosurgeon Dr Michael Coroneos prepared a medicolegal report for the respondent.
Dr Coroneos took a history of the applicant reporting right shoulder symptoms of pain and stiffness occurring over the previous two weeks on 22 July 2015. The applicant was subsequently transferred to concierge work in February 2016 following which she was diagnosed as experiencing plantar fasciitis of both feet particularly so on the right. The applicant began to experience right sided neck pain in April 2016 and saw her general practitioner on 31 May 2016 in relation to those symptoms. The applicant confirmed that there was no specific incident or event on 31 May 2016.
Dr Coroneos recorded his findings on examination and reviewed MRIs of the cervical spine and shoulder as well as various other medical records.
Dr Coroneos was asked for a diagnosis of the condition sustained on 31 May 2016 and responded:
“I cannot identify a significant neurosurgical or spinal condition or injury sustained on 31 May 2016 compatible with this presentation and objective indices referred to herein.”
Dr Coroneos said he could not identify a neurosurgical injury or neurosurgical diagnosis resulting from the applicant’s described work activities or employment.
Dr Coroneos recommended a referral to a neurologist to exclude peripheral neuropathic process or plexopathy causing the applicant’s symptoms but said the requirement for such investigation did not result from the work activities.
Dr Coroneos noted a report of Dr Bruce and said he was unable to find any relationship between the applicant’s cervical symptoms and her right shoulder condition.
Dr Coroneos noted that the applicant had reported multiple symptoms including anxiety, depression and agitation and recommended review by psychiatrist.
Dr Bruce
A medicolegal report was also prepared for the respondent by orthopaedic surgeon, Dr Greg Bruce on 1 August 2016.
Dr Bruce took a history of the onset of right shoulder symptoms:
“22 July 2015 is the nominated date of injury. However Mrs Carbery described this as the day the problem was reported. She said her problems started about 2½ weeks previously when the bank branch was short staffed. She was requested to work through her lunch break and then leave work about half an hour early. She did this for two weeks but found working non-stop without a rest break caused soreness in her right arm. The problem slowly progressed sufficiently for her to be in some distress by the time she reported her symptoms on 22 July 2015.
She associated the onset of symptoms with being required to work for a long period of time without a rest break at lunch time. She also associated the problem with refurbishing at the branch which resulted in much narrower than usual work counters. She said that the computer screen was re-sited to her left and she spent all of her time sitting in one position looking to the left to view the computer screen.”
Dr Bruce also recorded an onset of pain and stiffness in the applicant’s neck with symptoms radiating down her right upper limb in February, March and April 2016.
Dr Bruce performed an examination and reviewed MRI scans of the cervical spine and right shoulder before giving an opinion as follows:
“Mrs Donna Carbery has evidence of an Impingement Syndrome of her right shoulder with resulting rotator cuff tendinopathy and sub-acromial bursitis. This has been aggravated by the nature of her work duties and the aggravation is continuing. She has pre-existing cervical spondylosis with intervertebral disc degeneration. There has been some aggravation to her condition due to the associated right shoulder problem but the aggravation is temporary. Her neck symptoms and signs are primarily due to a naturally occurring condition.”
Asked whether the injury could have happened anyway about the same time if the applicant had not been employed by the respondent, Dr Bruce responded:
“It is possible that Mrs Carbery would have developed symptoms relevant to the tendinopathy of her right shoulder and the cervical spondylosis at about this time in the absence of her work duties.
It should be noted that the increase in her work duties was relatively minor. It simply consisted of continuing to work through her half hour lunchbreak. This was compensated for by her leaving work half an hour earlier. There has been no single incident or change in duties that has caused an onset of her symptoms.”
Dr Bruce prepared a further report on 12 February 2018 in which he provided an opinion on the applicant’s persisting symptoms:
“Her symptoms remain unchanged except she describes the pain as being more severe. The sequence of events appears to have been triggered off by the events of 22 July 2015, though the appearance at this time is atypical for the nature of the condition. Specifically there was no single injury but simply onset of symptoms after increased use. She now also complains that the ergonomics of her workstation are aggravating the shoulder and her neck.
Her present symptoms and signs are out of proportion and inconsistent with the nature of the increased work duties that she describes. There is no clear organic or pathological explanation for the severity of her symptoms and signs. This raises the suspicion of functional or psychological overlay. It is significant that she has been referred to a psychiatrist and his opinion may be more relevant to the present underlying problems.
There were symptoms and signs of adhesive capsulitis when seen by me in August 2016. It is possible for this condition to persist but generally not as severe as at present.
Her cervical spine symptoms and signs are related to naturally occurring degeneration of the cervical spine with intervertebral disc degeneration. Her cervical spine symptoms and signs are not related to the workers' compensation condition.”
Dr Bruce provided a further report providing a similar diagnosis and opinion on causation in respect of the right shoulder and cervical spine on 3 December 2018.
On 4 June 2019, Dr Bruce was asked to provide an opinion on the bilateral heels as well. Dr Bruce recorded:
“Today she provided a history of pain in both heels. She says that the symptoms started when she was required to stand in the reception area to greet customers and to assist them. She says that she was required to stand non-stop for six hours a day for two months and she associates this with the onset of her heel pain. She has had no specific treatment for the heels. On her own initiative, she bought shoes and used special heel cushions. She says the left heel settled but there are still symptoms in the right heel.”
With regard to diagnosis, Dr Bruce reported:
“Cervical Spine
She has naturally occurring degenerative cervical spondylosis. This is a naturally occurring degenerative condition. The fall that she describes and the ergonomics of the desk may have caused some temporary increase in symptoms but has not caused the degenerative pathology or the chronic pain.Right Shoulder
She has chronic tendinopathy of the rotator cuff of the right shoulder with partial thickness tearing of the rotator cuff. She has degeneration at acromioclavicular joint and subacromial impingement. She has chronic adhesive capsulitis. The symptoms in her right shoulder are related to the work incident that she describes. She has a naturally occurring degenerative condition that has been permanently aggravated by her work conditions.
…Heels of Both Feet
She has right-sided plantar fasciitis. She has had similar pathology in the left heel but substantially resolved. This is a naturally occurring condition and is not related to her work.”Dr Bruce was also asked to give opinions on the contribution of various events to the applicant’s conditions. Dr Bruce commented that the nature and conditions of the applicant’s employment were “a factor in her right shoulder pain. It is not a factor in her neck pain or heel pain causation.”
Commenting further on the plantar fasciitis, Dr Bruce said:
“She has naturally occurring plantar fasciitis which is a naturally occurring condition unrelated to her work duties. The work duties can cause temporary increase in symptoms but this would have only occurred over the five months that she worked as a receptionist/greeter. The continuing symptoms are because of the naturally occurring condition.”
Dr Bruce made an assessment of WPI concluding that the applicant had 10% WPI of her right shoulder as a result of work injury.
Dr Bruce prepared a final supplementary report on 11 January 2021. Dr Bruce indicated that there was no change in his opinion. Dr Bruce was asked to explain his opinion in relation to the alleged cervical spine injury in light of the applicant’s complaints regarding the ergonomic set up of her workstation:
“She stated that her shoulder symptoms started in early July 2015.
She had a considerable period of time off work and physical treatment. She did not report problems with her neck until 'February, March and April 2016'.
At the time of the assessment on 9 June 2019, she was questioned regarding the onset of her neck pain. She claimed that it was a requirement to sit at an 'unsuitable desk' and she also claimed that she had fallen off her chair on 8 December 2015.
My assessment from this history was that the 'unsuitable desk' may have caused some temporary aggravation of symptoms resulting from a pre-existing condition but the desk was not sufficiently significant to have caused the advanced pathology shown on imaging.
She did have a history of a fall from the chair on 8 December 2015, but at the first interview, she stated that the neck pain did not commence until 'February, March and April 2016'.
Neither the ‘unsuitable desk’ nor the fall would have caused the degenerative pathology or the persistent symptoms. At the most, either event would have caused a temporary increase in symptoms.
The most significant indication of a naturally occurring degenerative condition was the MRI scan dated 9 July 2016, that showed advanced degenerative cervical spondylosis with intervertebral disc degeneration, particularly at C5/6. The degenerative changes were advanced and had been present for many years. This is the substantial cause of the symptoms in her cervical spine. The incidents that she describes have not caused the pathology and have not caused prolonged symptoms. At the most, they may have caused temporary increase of symptoms but no aggravation or increase of pathology.”
Applicant’s submissions
Mr Hickey referred me to the applicant’s statement evidence and said it was clear that the applicant had no previous problems with her right shoulder, neck or feet.
The applicant described a change in her duties in May 2015 when the applicant moved to the North Sydney branch as it was short staffed. There was a policy of using one cash drawer which was manned by the applicant. The applicant described the narrow counter, being required to serve customers through a window and always using her right arm without a break. The applicant described the onset of symptoms in her right shoulder after two and half weeks.
Mr Hickey noted that Dr Sim’s sequential clinical notes were in evidence and directed my attention to the clinical note of 22 July 2015 which was also extracted in a letter of referral to a physiotherapist of the same date. The note recorded the applicant’s complaint of pain in her right shoulder for over a week in the context of her work as a bank teller in North Sydney. The applicant had been attending to customers non-stop without lunchbreaks due to staff shortages and was stuck in one position.
Mr Hickey also referred me to the clinical notes of Dr Sim recorded on or around 10 June 2016 with regard to the applicant complaining of pain in her feet after standing at a concierge desk for four hours since 8 February 2016. Mr Hickey noted that this was consistent with the applicant’s evidence regarding her duties after her shoulder symptoms were notified, including being moved to a concierge desk.
Mr Hickey noted the applicant’s evidence that following her transfer to the Crows Nest branch and being assigned concierge duties she had a fall from a high chair. The applicant was given a visitor’s chair and proceeded to sit in an awkward position for four months. The applicant’s condition got worse and she developed new upper back and cervical symptoms.
Mr Hickey referred me to the ergonomic assessment reports which noted the applicant’s awkward neck, back and shoulder postures and the unsuitability of the concierge workstation. A number of recommendations were made as to how the workstation should be adjusted.
Mr Hickey said there was detailed contemporaneous medical evidence of the onset of the applicant’s right shoulder symptoms, pain in the applicant’s feet and cervical pain consistently with the applicant’s statement evidence.
Mr Hickey described as “very useful”, the history set out in the report of the applicant’s psychiatrist, Dr Anita George, dated 26 September 2016 and noted that it was addressed to the respondent’s claims consultant. This was said to be relevant to the respondent’s defence pursuant to s 261 of the 1998 Act. Mr Hickey referred in particular to s 261(3) which provides that a person is considered to have made a claim when she makes any claim for compensation in respect of the injury.
Mr Hickey noted that the report of Dr George also identified that on 6 July 2016, the applicant was told by her area and branch managers that she did not need to come back to work and that she could look for a different job. Mr Hickey said this accounted for the deemed date of injury pursuant to ss 15 or 16 of the 1987 Act identified in the ARD.
Mr Hickey referred to the reports of Dr Young, Dr Steel and the other treating medical evidence summarised above.
Referring to the report of Dr Bodel, Mr Hickey noted that he diagnosed injuries, coming on gradually, attributable to the nature and conditions of the applicant’s work in general to the right shoulder, neck and feet. Dr Bodel confirmed that employment was the main contributing factor in all of the injured areas. The history relied on by Dr Bodel was basically in line with the other evidence. Mr Hickey submitted that Dr Bodel’s opinion was consistent with injuries pursuant to ss 4(b)(i) and (ii) in all areas.
With regard to Dr Coroneos’ report, Mr Hickey submitted that not all of the MRI scan evidence available had been considered. Dr Coroneos tended not to deal with the allegation of an injury by way of an aggravation of an underlying disease for the purposes of s 4(b)(ii) of the 1987 Act. Dr Coroneos appeared focused on his inability to identify a specific injury on 31 May 2016.
Mr Hickey noted that both Dr Coroneos and Dr Bruce identified degenerative disease in the cervical spine. Dr Bruce considered that the degenerative disease may have been aggravated temporarily having regard to the applicant’s complaints of continuing pain, Mr Hickey submitted that the Commission would be satisfied that there was an injury pursuant to s 4(b)(ii).
Mr Hickey submitted that Dr Bruce accepted that the right shoulder was a work-related injury.
Mr Hickey noted the report from Dr Zhu dated 30 April 2016. Mr Hickey submitted that this report provided support for the applicant’s case in providing a diagnosis of plantar fasciitis. The report confirmed that the applicant first complained of pain in her heels in February 2016 and described the treatment recommended. The report established a causal connection between the symptoms and the applicant standing on her feet and walking at work.
Mr Hickey submitted that the deemed date of injury was 6 July 2016 when the applicant ceased work. The evidence established that the applicant had notified the injury to the relevant body parts and made a claim for compensation in relation to each body part prior to or within six months of that date.
With regard to the issue of whether there were separate injuries, Mr Hickey referred to the decision of Stone v Stannard Brothers Launch Service[1], and submitted that for the purposes of the claim for lump sum compensation there was a single date of injury
[1] [2004] NSWCA 277.
Respondent’s submissions
The respondent noted that it had previously accepted that the applicant suffered an injury to her right shoulder caused by a specific incident on 22 July 2015. However, the respondent disputed that the applicant sustained injury to the right shoulder, cervical spine and feet as a result of the nature and conditions of her employment as alleged in the ARD.
The respondent noted that the claim form for a right shoulder girdle muscle sprain identified a date of injury of 13 July 2015 due to non-stop working “since 13 July 2015” without a break.
The respondent noted the applicant’s evidence that following the onset of right shoulder symptoms she came under the care of the respondent’s injury management system. As part of that process, the applicant was moved back to her previous branch at Crows Nest and was allocated the job of concierge. The respondent submitted that the applicant’s evidence about the physical requirements of the concierge role she performed was confused.
The respondent noted that the applicant’s evidence suggested that she spent some of the time in the concierge role seated. The applicant, for example, described falling from a teller’s chair. Inconsistently, the applicant said her feet would get sore after standing “all day”. The evidence confirmed that the applicant was provided with seating whilst performing the concierge role. This was said to be inconsistent with the applicant’s claim that she was on her feet all day.
The respondent noted that the Ergonomic Workstation Evaluation of 1 June 2016 stated that since her shoulder injury, the applicant had been following a suitable duties plan that involved “alternating between back of house (BOH) duties, short periods as a teller and the concierge role.” That evidence was said to be directly inconsistent with the applicant’s statement evidence that she was solely performing the concierge role.
The respondent also noted that in the information provided to the ergonomic assessor, the applicant referred to experiencing pain in her feet but made no reference to being “on her feet all day.“ The applicant did not attribute the onset of pain in her feet to prolonged standing at work.
The respondent submitted that the reference in the clinical note of Dr Sim on 10 June 2016 to the applicant standing at a concierge desk for four hours a day since 8 February 2016 was inaccurate as the applicant, on her own account, fell while sitting on the chair performing the concierge role in December 2015, some two months prior to the reported onset of heel pain.
The respondent noted that there was no recorded complaint by the applicant of bilateral foot pain in Dr Sim’s clinical records, despite the history recorded by the doctor in June 2016 that her heel pain condition came on within days of 8 February 2016. The applicant had provided no evidence explaining her apparent failure to report the onset of heel pain in February 2016 to Dr Sim.
The respondent noted that Dr Zhu recorded that the applicant suffered right plantar fasciitis, not bilateral heel pain. Dr Zhu recorded that the cause reported by the applicant was “standing and walking” and not merely standing as the applicant has said in her statement. Dr Zhu did not identify the period of time the applicant reported she had been standing on her feet and walking at work. Dr Zhu’s history of the applicant “being on her feet most of the day at work” was said to be at odds with the history at the time of the ergonomic assessment the period of four hours recorded by Dr Sim.
The respondent submitted that the Commission should not accept the applicant’s evidence about the onset of her heel pain being caused by prolonged standing at work in February 2016. The inconsistencies between the applicant’s statement evidence and the other four recorded versions were significant and created significant doubt about the accuracy of the applicant’s account.
The respondent submitted that the vague history relied on by Dr Bodel was at odds with the applicant’s history given to Dr Sim to the effect that the pain in her heels came on as a result of standing on her feet for four hours each day for five days. It was also inconsistent with the history of pain limited to the right heel recorded by Dr Zhu.
The respondent said Dr Bodel provided a broad diagnosis and vague comment about causation of the asserted injury to the various body systems claimed. Dr Bodel failed to provide any proper analysis of how, and in what circumstances the aggravation of the degenerative disc disease in the cervical spine was to have occurred.
Similarly, Dr Bodel’s cursory comments about the onset and cause of the applicant’s alleged right heel injuries failed to address the basis on which the doctor concluded that the applicant’s work was the main contributing factor to the aggravation of the condition. The respondent submitted that Dr Bodel’s opinion should be rejected. It failed to meet the requirements for admissibility or weight set out in authorities such as Hancock v East Coast Timber Products Pty Limited[2] and Makita (Australia) Pty Ltd v Sprowles[3].
[2] [2011] NSWCA 11.
[3] [2001] NSWCA 305.
The respondent also observed that Dr Bodel concluded that the applicant suffered aggravation of a pre-existing degenerative disease process of the cervical spine and in both heels. However, the doctor later found that “there is no evidence of any pre-existing pathology and no abnormality or condition for which there should be any deduction for pre-existing impairment.” The respondent submitted that those inconsistencies served to further significantly undermine the weight and value that could be given to Dr Bodel‘s opinion.
The respondent noted that Dr Coroneos could not determine any neurosurgical injury or diagnosis that resulted from the applicant’s employment with the respondent. It was notable that the applicant did not identify prolonged standing or walking as a cause of heel pain or identify any specific cause of her neck pain.
The respondent referred to the series of reports by Dr Bruce and submitted that the history taken in relation to the heel pain was at significant variance with the history provided to other doctors and in the applicant’s statement. The applicant claimed that she had been “required to stand non-stop for six hours a day for two months.” That contradictory history further supported a finding that the applicant’s evidence on the issue was inherently unreliable.
The respondent submitted that based on the opinion of Dr Bruce, it was open to the Commission to find that the applicant suffered injury to the right shoulder. The question was whether that was due to a specific injury or to aggravation of a pre-existing disease condition. Although there was reference to a specific injury to the right shoulder occurring in May 2015, the respondent accepted that there was sufficient evidence to support a finding that the injury was an aggravation of a pre-existing disease condition.
The respondent submitted that it was uncontroversial from the applicant’s evidence that she suffered incapacity as a result of the shoulder injury, as her hours of work were reduced and her duties changed. Accordingly, the respondent submitted that the relevant date of injury for the injury to the right shoulder (whether by way of frank injury or aggravation) should be determined to be 22 July 2015.
The respondent also accepted that the report of Dr Bruce, dated 4 June 2019 provided some support for a finding that the ergonomics of the applicant’s workstation caused a temporary aggravation of pre-existing cervical spondylosis. That evidence was sufficient to ground a finding of injury, albeit only a temporary one.
The respondent submitted that the relevant date of injury under s 16 of the 1987 Act for the cervical injury was the date of the claim for compensation. That date differed from the date of injury for the right shoulder determined by the application of s 16 as noted above.
The respondent submitted that the Commission could not be satisfied of the veracity and accuracy of the applicant’s evidence that the onset of bilateral heel pain was caused by work or that the employment was the main contributing factor to any aggravation of a pre-existing condition, as required by s 4(b)(ii) of the 1987 Act. The Commission should not be prepared to give the opinion of Dr Bodel any weight on the issue of the cause of the applicant’s bilateral heel pain and should enter an Award for the respondent on that aspect of the applicant’s claim.
The respondent conceded that based on its earlier submissions about the applicable dates of injury, s 261 would not prevent the applicant from recovering compensation.
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.”
It is the applicant who bears the onus of establishing on the balance of probabilities that she has sustained an injury for the purposes of s 4. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[4] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[4] [2008] NSWCA 246.
There is little controversy, even on the respondent’s expert evidence and submissions, that the applicant has sustained an injury to both her right shoulder and cervical spine.
Although the applicant’s right shoulder injury was initially accepted by the respondent’s insurer on the basis that it involved a frank incident on 13 July 2015, the evidence before me consistently indicates that the onset of right shoulder symptoms was gradual, occurring over a period of time following the applicant’s transfer to the North Sydney branch and being directed to handle the single cash drawer.
The injury has been accepted by the medical experts on both sides as involving an aggravation of an underlying degenerative condition in the shoulder. Dr Bruce found the applicant had a naturally occurring degenerative condition that had been permanently aggravated by her work conditions. Dr Bodel also found that the nature and conditions of the applicant’s work was the main contributing factor to the aggravation of disease pathology in the applicant’s right shoulder.
The only basis on which the insurer appears to have considered that the injury involved a frank incident was the claim form completed by the applicant which identified a single date of injury.
Having regard to the evidence as a whole, I am satisfied that the applicant sustained an injury of gradual onset in the nature of an aggravation of degenerative disease in the applicant’s right shoulder to which the nature and conditions of the applicant’s employment were the main contributing factor for the purposes of s 4(b)(ii) of the 1987 Act.
There is suggestion in the evidence that the insurer may have initially also understood that the applicant had claimed her cervical spine symptoms were the result of a frank incident. So much is suggested by the report of Dr Coroneos who said he was unable to identify “a significant neurosurgical or spinal condition or injury sustained on 31 May 2016.”
The date of 31 May 2016 is in fact the date on which the applicant notified an injury to her cervical spine. It was clear from the applicant’s email of that date, however, that she was complaining of an injury caused over time due to the ergonomics of her concierge workstation. The applicant complained that the height of the chair provided required the applicant’s head to be constantly tilted back to look up at the screen and the keyboard had to be placed on a shelf which allowed no wrist or arm support. There is evidence that this ergonomic set up also continued to aggravate the applicant’s right shoulder condition.
A consistent history of a gradual onset of neck symptoms in this manner has been provided to the applicant’s treating doctors as well as the other medicolegal experts. It is also consistent with the ergonomic assessment of the applicant’s workstation.
Although an injury to the applicant’s cervical spine was disputed by the respondent’s insurer, the opinions given by Dr Bruce are in fact consistent with an injury in the nature of an aggravation of underlying degenerative disc disease as found by Dr Bodel. Where the experts differ is on the ongoing effects of that aggravation. Dr Bruce has provided a clear and consistent opinion that he considered the effects would have been temporary. Dr Bodel on the other hand found evidence of permanent impairment resulting from the injury.
The question of the ongoing effect of injury to the applicant’s cervical spine is not one which I am required to determine in the context of this case. It is sufficient for present purposes that I am satisfied that the applicant did sustain an injury to her cervical spine in the nature of an aggravation of pre-existing degenerative disc disease to which the nature and conditions of her employment with the respondent was the main contributing factor for the purposes of s 4(b)(ii) of the 1987 Act. The degree of permanent impairment resulting from the aggravation, if any, would be a matter for a Medical Assessor to determine.
There is a more significant dispute with respect to the alleged injury to the applicant’s feet. I am comfortably satisfied that the applicant experienced symptoms of plantar fasciitis during the period of her employment with the respondent. A diagnosis of that condition was made by Dr Zhu in his report to the respondent and was described by Dr Sim and Dr Powell. Dr Bruce and Dr Bodel both made a diagnosis of plantar fasciitis in both feet, notwithstanding Dr Zhu’s specific reference to the right foot. The evidence does indicate that the applicant’s symptoms were worse in her right foot, which may account for Dr Zhu’s focus on that side. Where the doctors differ is on the question of the impact of the applicant’s work duties on the condition.
Dr Bodel’s opinion is somewhat opaque. On the one hand, Dr Bodel expressed the view that the period of work when the applicant had to stand for prolonged periods as a door greeter had “induced” plantar fasciitis in both heels. This would appear to be an opinion consistent with an injury under s 4(b)(i) of the 1987 Act. Later in the same report, however, Dr Bodel said the nature and conditions of the applicant’s work was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration in all of the injured areas. This suggests an injury for the purposes of s 4(b)(ii) of the 1987 Act. Dr Bodel’s opinion has also been criticised by the respondent for a lack of detailed explanation of the causal connection between the applicant’s symptoms and her work duties.
Dr Bruce did not accept that the pathology in the applicant’s feet would have been caused by work. Dr Bruce said plantar fasciitis was a naturally occurring condition. Dr Bruce did, however, allow for the possibility of a temporary aggravation of that pathology whilst the applicant was performing the work of a greeter:
“The work duties can cause temporary increase in symptoms but this would have only occurred over the five months that she worked as a receptionist/greeter. The continuing symptoms are because of the naturally occurring condition.”
There does, therefore, appear to be some consistency between Dr Bodel and Dr Bruce with respect to there being an “aggravation” of the applicant’s plantar fasciitis caused by work.
Dr Zhu has also given an opinion that the applicant’s plantar fasciitis was aggravated by standing and walking. With respect to causation, Dr Zhu said:
“She stands on feet most of the day at work, so the main cause of the problem should be work related (unless she works only part time).”
Dr Zhu’s clinical records are not in evidence and there are no reports from him other than his handwritten responses to questions from the insurer. Those responses are, however, broadly consistent with a history recorded by Dr Sim in a referral letter dated 10 June 2016:
“Patient said she had been standing at concierge desk for 4 hours since 8/2/2016. After 5 days, she started complaining of pain in her feet. She saw her GP after having the pain for another 3 days and was diagnosed with bilateral plantar fasciitis. Her LMO issue a MC limiting standing for up to 30 mins.”
A similar history was recorded by the applicant’s psychiatrist, Dr George in her report to the respondent’s insurer dated 26 September 2016.
The respondent has submitted that the Commission would not be satisfied that the applicant had discharged her onus with the regard to the alleged plantar fasciitis injury, in part, due to inconsistencies in the evidence with regard to the applicant’s duties in the concierge role at the Crows Nest branch. The respondent submitted that the evidence suggests that the applicant spent part of her time in the concierge role seated. In particular, the respondent noted the evidence of a fall from a tellers chair and the ergonomic workstation evaluation of 1 June 2016, which indicated that the applicant had been following a suitable duties plan that involved alternating between back of house duties and the concierge role.
There is some difficulty in establishing a precise chronology on the evidence in this case. The applicant’s evidence and the history recorded by Dr George does, however, indicate that following a period of approximately five weeks of long service leave in late 2015, the applicant was transferred to the Crows Nest branch in November 2015. There was an increase in the applicant’s workload around December 2015 due to other branch closures. The applicant’s evidence and the history recorded by Dr George indicate that the applicant’s work restrictions were not adhered to as a result. In particular, the applicant was not rotating tasks. On 8 December 2015, the applicant fell from a high chair. Sometime after this, the applicant began to use a visitors’ chair after she reported her plantar fasciitis. Although the chair was not suitable and made work uncomfortable and inconvenient, the applicant sat in the awkward position as she did not want to injure her feet.
I accept that there is no contemporaneous account of the onset of heels symptoms in the clinical records of Dr Sim but this may be explained by the applicant’s evidence that she consulted Dr Zhu in relation to the condition.
The respondent has also noted discrepancies in the accounts of whether the applicant was on her feet most of the day, for four hours per day or for six hours per day. Discrepancies were also noted in the histories with regard to whether the applicant was simply standing or standing and walking These inconsistencies in the reported histories do not, however, satisfy me that the applicant’s evidence is unreliable.
I am satisfied on the evidence that between December 2015 and the reporting of feet symptoms to Dr Zhu in early February 2016 the applicant was not consistently using a seat or rotating into the back of house duties. I am prepared to accept that the duration for which the applicant was standing at the concierge desk may have fluctuated according to the applicant’s work restrictions and the number of customers she was required to greet. The lack of precision and consistency in the accounts of the duration for which the applicant was standing on her feet, do not outweigh the consistent reporting of an increase in heel pain following the commencement of concierge duties. There is no dispute that the applicant was required to stand whilst greeting customers in the performance of that role.
Having weighed the evidence, I am satisfied that the applicant was required to stand for significant periods for around two months prior to February 2016. I am satisfied that the applicant was diagnosed with plantar fasciitis in both feet. I am also satisfied, given the consistency of opinion between Dr Bodel, Dr Bruce and Dr Zhu that the applicant’s duties in the concierge role were the main contributing factor to an aggravation of her plantar fasciitis for the purposes of s 4(b)(ii). I am not prepared to accept on the evidence of Dr Bodel that the duties induced or caused the condition itself.
Noting the difference of opinion between Dr Bodel and Dr Bruce on the ongoing effect of the aggravation, it will be a matter for a Medical Assessor to determine the degree of permanent impairment resulting from the aggravation, if any.
For the reasons given above, I am satisfied that the applicant has sustained injury to her right shoulder, cervical spine and both feet as a result of the nature and conditions of the applicant’s employment with the respondent pursuant to s 4(b)(ii) of the 1987 Act.
There is a question which remains as to whether the injury to each body part is a discrete injury which must be assessed separately. The parties’ submissions on this question focused predominantly on the relevant deemed dates pursuant to ss 15 or 16 of the 1987 Act. It is, however, appropriate to consider first the mechanism of injury.
The initial claim form and the clinical notes of Dr Sim indicate that it was the applicant’s duties at the teller counter at the North Sydney branch from 13 July 2015 onwards which caused the onset of symptoms in her right shoulder. The applicant first reported the symptoms on 22 July 2015. I accept that those symptoms continued and in fact worsened following the applicant’s transfer into the concierge role in November 2015. I have accepted above that the applicant’s duties in the concierge role also caused an aggravation of the disease processes in the applicant’s cervical spine and both feet.
That the concierge duties were continuing to aggravate the applicant’s right shoulder is evident from the treating medical evidence including a repeat MRI scan which Dr Young said demonstrated a progression in the intrasubstance delamination tear of the supraspinatus since the previous scan.
It appears that the applicant was moved out of the concierge role and into a back of house role making sales calls at the North Sydney branch on or around 27 June 2016, according to the ergonomic assessment of her new workstation at that branch of the same date. The applicant’s evidence suggests that she was able to perform this work well without further aggravating her shoulder, neck or feet.
On the basis of this evidence, I am satisfied that it was the cumulative effect[5] of the applicant’s employment activities between 13 July 2015 and 27 June 2016 which was the cause of the injuries to the applicant’s right shoulder, cervical spine and feet. There is a single injury.
[5] See Wyong Shire Council v Paterson [2005] NSWCA 74 at [38].
Compensation was claimed in respect of each body part at different times. For the purposes of those claims, different deemed dates pursuant to s 16 of the 1987 Act may have applied by reference to the date of first incapacity or the date of claim.
In the present proceedings, however, there is only a claim for lump sum compensation under s 66 of the 1987 Act. According to the dispute notice dated 19 June 2019, the claim for lump sum compensation was made on 2 April 2019. Consistently with Mr Hickey’s submissions and applying Stone v Stannard BrothersLaunch Service[6] and Alto Ford Pty Ltd v Antaw[7]; the deemed date of injury under s 16(1)(a)(ii) of the 1987 Act for present purposes is 2 April 2019, being the date of the claim for lump sum compensation.
[6] [2004] NSWCA 277.
[7] [1999] NSWCA 234.
For the purposes of s 261 of the 1998 Act, I accept Mr Hickey’s submissions with respect to s 261(3), which provides:
“(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.”
The applicant made claims for compensation in respect of the injury on 19 August 2015, 18 February 2016 and 31 May 2016. I am satisfied that s 261 does not bar the applicant from recovering compensation.
What remains to be determined is the degree of permanent impairment resulting from the injury. The assessments of permanent impairment by Dr Bodel and Dr Bruce vary significantly. In the circumstances, I am satisfied that it is appropriate to remit the matter to the President for referral to a Medical Assessor to make an assessment of WPI.
SUMMARY
The applicant sustained an injury to her right shoulder, both feet and cervical spine in the nature of an aggravation of a disease due to the nature and conditions of the applicant’s employment with the respondent between 13 July 2015 and 26 June 2016.
Employment with the respondent was the main contributing factor to the aggravation for the purposes of s 4(b)(ii) of the 1987 Act.
The injury is deemed pursuant to s 16(1)(a)(ii) of the 1987 Act to have occurred on 2 April 2019 when the claim for lump sum compensation pursuant to s 66 of the 1987 Act was made.
The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury: Nature and conditions of employment between 13 July 2015 and 26 June 2016 (2 April 2019 deemed)
Body parts: Right upper extremity (shoulder)
Cervical spine
Left lower extremity (foot)
Right lower extremity (foot)Method: Whole Person Impairment.
The materials to be referred to the Medical Assessor are to include:
(a) ARD and attached documents;
(b) Reply and attached documents other than the report of Dr Richard Powell dated 11 May 2016 from the heading “Diagnosis” at p 3 of the report onwards;
(c) documents attached to an Application to Admit Late Documents lodged by the applicant on 5 January 2021; and
(d) documents attached to an Application to Admit Late Documents lodged by the respondent on 12 January 2021.
Rachel Homan
MEMBER
27 April 2021
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