Colless v Woolworths Group Limited
[2022] NSWPIC 326
•24 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Colless v Woolworths Group Limited [2022] NSWPIC 326 |
| APPLICANT: | Andrew Colless |
| RESPONDENT: | Woolworths Group Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 24 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - Permanent impairment compensation; whether applicant suffered bilateral shoulder injuries in addition to accepted thoracic spine injury; Held – on balance the medical evidence discloses pathological change in the applicant’s left shoulder sufficient to satisfy the requirements of section 4 of the Workers Compensation Act 1987 (1987 Act); Castro v State Transit Authority (NSW) and Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear discussed and applied; the initial emphasis of the applicant’s treating practitioners on the thoracic spine injury does not preclude the existence of injury to other body parts; the existence of such injury is a matter to be determined after consideration of the totality of the lay and medical evidence; on balance the applicant has discharged the onus of proof in establishing a left shoulder injury; however the applicant has not discharged the onus of proof in establishing injury to the right shoulder; thoracic spine and left shoulder claims remitted to the President for referral for medical assessment; award for the respondent on the claim for injury to the right shoulder. |
| DETERMINATIONS MADE: | 1. The applicant suffered an injury in the course of his employment with the respondent to his thoracic spine and left upper extremity (shoulder) to which his employment was a substantial contributing factor. 2. Award for the respondent on the claim for injury to the right upper extremity. 3. The matter is remitted to the President for referral to a Medical Assessor for determination of the permanent impairment arising from the following: Date of injury: 15 July 2018. Body systems referred: thoracic spine and left upper extremity (shoulder). Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) this Certificate of Determination and statement of reasons; (b) Application to Resolve a Dispute and attachments, and (c) Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
On 15 July 2018, Andrew Colless (the applicant) was in the course of his employment with Woolworths Group Ltd (the respondent) when he was opening a large roller door at the back of a truck in order to unload stock. As the applicant reached above shoulder height to open the door, it jammed and as he pushed harder on it to force it open, he felt a sharp pain in his mid-back and shoulders.
The applicant reported the incident to his manager, however, he continued to work for some time and eventually left work early that day.
The applicant then consulted his general practitioner and was referred for further treatment. He brings these proceedings seeking payment of permanent impairment compensation in respect of injuries to his thoracic spine (accepted) and bilateral upper limbs (shoulders) (disputed).
By s 78 notice dated 25 January 2022, the respondent disputed liability with respect to the applicant's left and right shoulders, denying that he suffered an injury within the meaning of section 4 of the Workers Compensation Act 1987 (the 1987 Act).
On the applicant’s own case, his accepted thoracic spine injury does not meet the threshold for referral to a Medical Assessor. The applicant requires injury to both the thoracic spine and at least one of his upper limbs to be accepted in order to meet the threshold on his own case for the payment of permanent impairment compensation.
ISSUES FOR DETERMINATION
The parties agreed that the only issue remaining in dispute is whether the applicant suffered an injury to his left and/or right shoulders.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The parties attended a hearing on 26 May 2022. I am satisfied with the parties to the dispute and the nature of the application and the legal implications of any assertion made and 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.
At the hearing, Mr Carney of counsel instructed by Mr Hopper appeared for the applicant. Ms Goodman of counsel instructed by Mr Patterson appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered injury to his left and/or right shoulder
“Injury” is relevantly defined in s 4 of the 1987 Act as follows:
“In this Act: injury means
(a) personal injury arising out of or in the course of employment,…”
There is a useful review of the authorities concerning the issue of injury in Castro v State Transit Authority (NSW) [2000] NSWCC 12; (2000) 19 NSWCCR 496 (Castro). That case makes clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”. In Castro a temporary physiological change in the body’s functioning (atrial fibrillation: irregular rhythm of the heart), without pathological change, did not constitute injury.
Consistent with Castro, the decision in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear [2014] NSWWCCPD 47 (Kear) added:
“In any event, the authorities do not support the proposition that, on its own, an elevation in blood pressure is a personal injury. That is because, without more, it is not a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. It is no more than a temporary physiological change in the body’s functioning, similar to the atrial fibrillation that occurred in Castro, without any accompanying lesion or pathological change (Castro at [138]).” (at [60])
It is therefore apparent that mere complaint or symptomology is not enough to satisfy the requirements of s 4. Rather, what is required is pathological change to the body system at issue referable to the injurious event.
It is also appropriate to examine whether the applicant’s employment was a substantial contributing factor to any alleged shoulder injury, as that aspect of the matter is also in dispute. Whether employment is a substantial contributing factor to an injury is a question of fact and is a matter of impression and degree (Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153 at [29] (Dayton); McMahon v Lagana [2004] NSWCA 164 (McMahon) at [32]) to be decided after a consideration of all the evidence. See also Workcover Authority of NSW v Walsh [2004] NSWCA 186.
It is important to recognise in s 9A that the employment must be a substantial contributing factor to the injury, not to the incapacity, need for treatment or loss. In Rootsey v Tiger Nominees Pty Ltd [2002] NSWCC 48; (2002) 23 NSWCCR 725 Neilson CCJ stated:
“employment must be a substantial contributing factor to the event causing the injury; that is, to the receipt of the injury, rather than to be a substantial contributing factor to the ongoing incapacity” (at [19]).
It is also important to note that the employment must be “a” substantial contributing factor to the injury, not “the” substantial contributing factor. The Court of Appeal held in Mercer v ANZ Banking Corporation [2000] NSWCA 138 that there may be more than one substantial contributing factor to a single injury, of which employment only need be one (at [16]). The Court also excluded the relevance of a predisposition or susceptibility to injury, Mason P saying:
“Section 9A does not require that the employment must be ‘the’ substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition (cf University of Tasmania v Cane (1994) 4 Tas R 156).” (at [27])
There is no issue the applicant suffered thoracic spine injury. That injury is accepted and is also the subject of opinion by Dr Lee, Independent Medical Examiner (IME) for the applicant.
There is no issue the applicant consulted general practitioner Dr Rubio on the day after the injury. Dr Rubio took a history, albeit short, consistent with the mechanism of injury set out by the applicant. On examination, Dr Rubio observed flattened cervical lordosis, forward head posture, bilateral protracted shoulders, increased lumbar lordosis and hitching of pelvis.
In terms of the active range of motion, Dr Rubio noted right shoulder flexion and abduction to 140˚ and left shoulder flexion and abduction to 130°, both with “pinching” in the interscapular area.
Notwithstanding these observations of issues affecting the applicant’s shoulders, Dr Rubio diagnosed only thoracic spine strain.
In September 2018, the applicant was referred to Dr Soo, orthopaedic surgeon. MRI of the thoracic spine showed anterior wedging of T7 and associated right side T5/6, T6/7 facet joint arthropathy.
Mr Carney submitted it was apparent the focus of treatment in the early stages of the applicant's post-injury development was his thoracic spine. He submitted it was not until approximately July 2020 that Dr Lim, general practitioner reported on the shoulder pain. In the report dated 29 July 2020, Dr Lim stated "[the applicant] noted left shoulder pain at the time, but it mostly settled. I have not provided treatment for his left shoulder at this stage”. Nevertheless, it is apparent that when the applicant first attended upon Dr Rubio the day after the injury at issue, there was a report of pinching in his shoulders and an identifiable restriction in left shoulder range of motion.
On 19 July 2018, the applicant consulted Mr Phan, physiotherapist, and a complaint of right shoulder and thoracic spine pain was reported. He also noted the applicant's rotation to the left was more painful than the right and that there was a restriction in flexion and abduction in the left shoulder along with pinching in the interscapular area.
Mr Carney submitted, and I accept that it was apparent at this point in time the applicant had been suffering from pinching sensation and restriction of movement in his shoulders, the left side in particular, for approximately one-week post-injury.
Mr Carney submitted that Dr Lim’s report from 29 July 2020 noted the applicant’s left shoulder symptoms “mostly settled", however, he submitted and I accept this finding on the report is consistent with the symptoms never having totally resolved.
On 30 July 2020, the applicant consulted Dr Dixon via tele consult (keeping in mind this was during the height of the pandemic). He noted he had been back at work for the past two weeks and his thoracic spine pain had been very sore and radiated to the front of his chest. Dr Dixon also ordered an MRI for the applicant's left shoulder, consistent with symptoms in that body system.
Dr Lim’s referral to Dr Soo recommended MRI for the left shoulder for what is described as “persistent symptoms". Mr Carney submitted, and I accept that the applicant’s treatment regime had primarily dealt with the thoracic spine as the wedge compression fracture in the body system was of increasing significance. Dr Lim in his report of 29 July 2020 acknowledged the left shoulder problems were persistent but did not consider they had required earlier treatment.
Dr Lee, IME also noted the history of the applicant being in pain in the mid thoracic region and left shoulder straight after the injurious event. That is consistent with the applicant's uncontested evidence. Dr Lee had the benefit of the MRI of the applicant’s left shoulder taken on 5 August 2020 which showed supraspinatus tendinitis and associated bursitis together with mild AC joint arthritis. Dr Lee diagnosed injury to the back, thoracic spine and left shoulder, including rotator cuff injury.
The respondent relies upon the reports of IME Dr Keller, who obtains the history of the applicant not having complained of shoulder issues at the time of his injury. That, with respect, is not quite so as there is a reference to scapular pinching sensations in the immediate aftermath of the incident at issue, together with a restricted range of movement in the left shoulder in particular.
The respondent’s IME, Dr Keller initial reports only deal [BG1] with diagnoses of the thoracic spine injury. I do not make that observation a criticism of Dr Keller, as it seems that he along with the applicant's treating doctors were primarily concerned with the thoracic spine complaints rather than the shoulder injury. Nevertheless, he too notes the pinching complaints by the applicant in the shoulder regions in the immediate aftermath of the incident at issue.
In his latest report dated 30 December 2021, Dr Keller was specifically asked whether the applicant had sustained any left shoulder injury due to the incident on 15 July 2018. He replied:
“At the time of my first assessment of Mr Colless reported his middle back pain. He reported no shoulder pain and had no investigations or treatment to his shoulder. The examination findings were of a full range of motion in both upper limbs including the shoulders with no evidence for shoulder joint injury.
Today's examination, there is no pain or restriction of movement in the left shoulder. There is no evidence for work-related left shoulder injury."
Dr Keller also noted there was no report of injury or pain, restriction of motion or treatment to the right shoulder and there was no evidence for any right shoulder injury.
The difficulty with Dr Keller’s observations and diagnosis regarding the left shoulder is that the applicant did in fact complain about it in the [BG2] immediate aftermath of the injury, and indeed there were findings of a restricted range of motion at that time. Dr Keller does not address the findings contained within the MRI from 2020 to the left shoulder and it is apparent in my opinion that this MRI in fact shows a pathological change in the left shoulder post-injury.
Notwithstanding the MRI was taken some two years after the original injury, I accept Mr Carney’s submission that in fact the applicant's treating medical experts were concerned primarily with the thoracic spine wedge fracture rather than the problems with his shoulder, and there is nothing to contradict the applicant's evidence that he has had ongoing shoulder symptoms since the injury at issue.
On balance, I am of the opinion the MRI taken in 2020 demonstrates pathological change consistent with the complaints of left shoulder injury made by the applicant since the injurious event in July 2018. In so finding, I accept the opinions of Drs Lim, Singh and Lee over those of Dr Keller. Dr Keller does not consider the MRI, nor explore whether there is any causal link between the pathology shown in it and the injurious event.
In my view, the findings of the MRI are consistent with the complaints made by the applicant concerning his left shoulder and I therefore find he has satisfied the requirements of showing demonstrable pathological change to that body system and the injury is, therefore found in the left shoulder pursuant to s 4 of the 1987 Act.
For the respondent, Ms Goodman submitted there was no mention in the claim form of the applicant's shoulders. Ms Goodman submitted Dr Rubio’s reference notes from his consultation with the applicant on 16 July 2018 did not reveal any shoulder problem.
With respect, I disagree with that submission because Dr Rubio noted at that consultation a right and left shoulder area pinching sensation and noted a reduced range of motion on the left side compared to the right.
Ms Goodman submitted the finding of a pinching sensation in the shoulder area was consistent more with the nature and conditions type claim rather than the pleaded case of frank injury, however, the basis for that submission is unclear and I do not accept it.
Ms Goodman submitted that the treating medical material in this matter dealt almost exclusively with the middle to upper back, and accordingly there was an insufficient basis to establish any shoulder condition. She noted those diagnoses continued up until the middle of 2020 when Dr Lim then recommended an MRI of the left shoulder for “persistent symptoms".
With respect to the respondent, in my view that course of treatment is consistent with the focus of the applicant's treating experts being on the wedge fracture of his thoracic spine rather than problems caused by a shoulder injury. That emphasis, however, does not exclude the presence of a shoulder injury. The focus by treating practitioners on one injury does not mean another body part was not also injured. The existence of such an alleged injury is a matter to be determined on a common-sense basis after careful consideration of all the lay and medical evidence in any given case.
In a clinical note dated 16 July 2018, physiotherapist Hing Ting Chan noted symptoms in the cervical spine, right shoulder, lumbar spine, and knee. He also found bilateral protracted shoulders and a reduced range of motion in the left shoulder compared with the right, with both shoulders suffering pinching in the interscapular area. That is to say, contrary to the respondent's submissions, there was a reference to shoulder issues in the immediate aftermath of the accident at issue.
Ms Goodman submitted there is no evidence to support a rotator cuff strain having taken place in the applicant's left shoulder in 2018, as the only radiology was the MRI taken in 2020 which shows bursitis rather than a cuff strain. I disagree with that submission, noting the applicant states he suffered ongoing shoulder problems from the time of the injury, however, the focus was on his thoracic spine problems.
Moreover, as Mr Carney noted in reply, Dr Lee’s diagnosis concerning rotator cuff problems in the left shoulder was made on the basis of his clinical examination of that body system at the time of his examination of the applicant. I accept Mr Carney’s submission that the scan on 5 August 2020 shows a pathological abnormality in the applicant's left shoulder.
In my opinion, that pathology is consistent with the persistent complaint of left shoulder pain made post-injury and I am therefore satisfied on a common-sense basis that the cause of that pathological change in the applicant's left shoulder was the injury at issue, which was a substantial contributing factor to left shoulder injury in a previously asymptomatic body part.
With respect to the right shoulder, the evidence is simply of some complaint made by the applicant in the immediate aftermath of the injury of the incident at issue, however, those symptoms seem to have passed relatively quickly and there is no radiological or treating medical evidence to support any finding of pathological change to satisfy the requirements of s 4 of the 1987 Act and the authorities which flow from it. For these reasons, there will be an award in favour of the respondent with respect to the claim for injury to the right shoulder.
SUMMARY
For the above reasons, the Commission will make findings and orders as set out on page 1 of the Certificate of Determination.
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