Danilidis v Atlantic Lubricants Pty Ltd
[2021] NSWPIC 228
•6 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Danilidis v Atlantic Lubricants Pty Ltd [2021] NSWPIC 228 |
| APPLICANT: | Daniel Danilidis |
| RESPONDENT: | Atlantic Lubricants Pty Ltd |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 6 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for permanent impairment compensation payable under section 66 of the 1987 Act for injury to right shoulder, low back, right wrist, left shoulder and scarring, with date of injury of 1 August 2017; alleged right wrist injury and consequential left shoulder injury placed in issue; Held – The applicant sustained consequential injury to his left shoulder; award for respondent relevant to injury the applicant allegedly sustained to his right wrist; the applicant’s claim for permanent impairment compensation resulting from injury the applicant sustained to his right shoulder, left shoulder, low back and scarring, with date of injury of 1 August 2017, is remitted to the President for referral to a Medical Assessor for the purposes of assessment of whole person impairment. |
| DETERMINATIONS MADE: | The Commission notes: 1. Liability is not disputed for injury the applicant sustained to his right shoulder arising out of or in the course of his employment with the respondent, with date of injury of 1 August 2017. Liability is not disputed for consequential injury the applicant sustained to his low back. The Commission determines: 2. The applicant sustained consequential injury to his left shoulder. 3. Award for respondent relevant to injury the applicant allegedly sustained to his right wrist on 1 August 2017. |
| ORDERS MADE: | 4. The applicant’s claim against the respondent for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury sustained to his right shoulder, left shoulder, low back and scarring, as agreed or determined by the Commission, with date of injury of 1 August 2017, is remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment. 5. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute and attached documents; (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 8 June 2021 and attached documents. |
STATEMENT OF REASONS
BACKGROUND
Daniel Danilidis (the applicant) was employed by Atlantis Lubricants Pty Ltd (the respondent) as a sales representative. He sustained injury on 1 August 2017 while participating in a soccer game, being an event organised by the respondent. The applicant is right hand dominant.
The applicant made a claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) resulting from alleged injury sustained to his right shoulder, right wrist, left shoulder, low back and scarring. The applicant’s claim for permanent impairment compensation is disputed by the respondent, with notices dated 18 June 2019[1] and 22 September 2020[2] relevantly issued to the applicant in accordance with
s 78 of the Workplace Injury Management and Workers Compensation Act 1998. While the respondent accepts liability for injury the applicant sustained to his right shoulder and low back, the respondent disputes alleged injury to his right wrist and alleged consequential injury to his left shoulder.[1] ARD at page 20.
[2] Reply at page 1.
The respondent made an offer to the applicant to resolve his claim for permanent impairment compensation, being an offer of 18% whole person impairment resulting from injury to his right shoulder, low back and scarring with reference to opinion provided by Dr Powell in his capacity as Independent Medical Examiner (discussed below). This offer of resolution was rejected by the applicant.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) alleged injury to the right wrist,
(b) alleged consequential injury to the left shoulder, and
(c) level of permanent impairment resulting from injury sustained on 1 August 2017.
PROCEDURE BEFORE THE COMMISSION
The applicant’s claim for permanent impairment compensation came before me for teleconference on 31 May 2021. Mr Naddaf, solicitor appeared for the applicant. Mr Diakiw, solicitor appeared for the respondent. The applicant was present. The applicant’s claim was unable to be resolved on this occasion and was listed for conciliation/arbitration hearing in the Commission.
The applicant’s claim came before me for conciliation/arbitration hearing on 16 June 2021. Mr Carney of counsel appeared for the applicant, instructed by Mr Naddaf. Mr Grimes of counsel appeared for the respondent, instructed by Mr Diakiw. A representative from the insurer, Mr Glavinceski, was present. The applicant was present.
I am satisfied 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 considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 8 June 2021 lodged by the applicant (AALD) and attached documents.
Oral Evidence
Neither party sought leave to adduce oral evidence or cross-examine any witnesses.
FINDINGS AND REASONS
Review of evidence
A brief summary of evidence follows.
Statement of the applicant
From time to time in his signed statement dated 30 October 2020[3] the applicant made reference to his previous statement that is not before the Commission.
[3] ARD at page 1.
The applicant confirmed that on 1 August 2017 he was participating in a soccer game “for my work team” when he fell to the ground. He explained “[T]o break my fall, I hyperextended my right arm, thus sustaining injury to my right shoulder and right wrist”.
The applicant said he initially assumed he had sustained a minor sprain to his right wrist “and given the severe symptoms I was experiencing in my right shoulder, all of my treatment focussed on this body part”. The applicant went on to say that “over the years” he suffered constant stiffness and intermittent right wrist pain, being symptoms that he did not have prior to the incident occurring on 1 August 2017.
The applicant also said that due to symptoms he experienced in his right arm, he became heavily reliant on his left arm, which relevantly resulted in consequential injury to his left shoulder. The applicant explained too that following surgical treatment to his right shoulder in March 2018, his right arm was in a sling for 10 weeks.
The applicant relevantly said that from December 2018 onwards he continued to suffer constant bilateral shoulder pain and right wrist pain, which he managed with physiotherapy and analgesic medication.
Workers injury claim form
In his injury claim form dated 21 August 2017[4] the applicant indicated that the body part he injured in the incident occurring on 1 August 2017 was his right shoulder. The applicant did not indicate he had injured his right wrist in the incident referred.
Employer injury claim form
[4] ARD at page 8.
In the employer injury claim form dated 25 August 2017[5] the respondent noted the applicant fell on his “right arm/shoulder” in the incident occurring on 1 August 2017. Like the applicant, the respondent indicated that the body part the applicant injured in the incident referred was his right shoulder. The respondent did not indicate the applicant injured his right wrist in the incident referred.
Treating medical evidence
Rooty Hill Medical and Dental Centre
[5] ARD at page 13.
Dr Shojai is the applicant’s treating general practitioner. Dr Shojai practises out of Rooty Hill Medical and Dental Centre. In his clinical records relevant to the applicant, Dr Shojai noted that the applicant presented on 2 August 2017 with a history of right shoulder dislocation while playing soccer the previous night, with his shoulder being “replaced” at Mt Druitt Hospital. Dr Shojai made no mention of injury to the right wrist in the incident referred.
Over time Dr Shojai issued a number of certificates of capacity relevant to injury sustained by the applicant in the incident occurring on 1 August 2017, with none of certificates before the Commission making reference to injury to the right wrist or consequential injury to the left shoulder.
In an entry dated 4 May 2018 Dr Shojai recorded that the applicant presented with a request for a “work cover mc” and noted:
“Dr Warren Kue [sic] advised off work until see him in 6 months
work push him to work, only answer the phon [sic] on left hand
pain much better”.
While in an entry dated 28 August 2018 Dr Shojai recorded that the applicant had undergone left L5/S1 microdiscectomy on 24 August 2018 and had presented requesting a “workcover MC” and went on to record “due to right shoulder injury and compensated get lower back pain”. There is no mention anywhere in Dr Shojai’s clinical records that the applicant had complained to him of symptoms in either his left shoulder or right wrist (save for mention on 23 March 2016 that the applicant had sustained a previous right wrist fracture with closed reduction and note “since then reduced extension and feels nerve pain on moving”). Of note however is that in a medical certificate dated 5 October 2018[6] Dr Shojai wrote:
“This is to certify that Mr Daniel Danilidis is (sic) required a major reconstructive shoulder surgery on his right shoulder due to work related injury. This limited his mobility and [sic] relied quite heavily on his left upper extremity on a regular basis during work. Due to the nature of his work and the physical requirements of the body, he reported of pain in his lower back to which he suffered a large disc herniation at the L5/S1 level requiring surgery at Westmead Hospital in August 2018. His lower back pain may have been caused by mobility restrictions due to the altered biomechanics of his right shoulder and the constant reconditioning and twisting of his torso to allow his left arm to reach down”.
[6] ARD at page 34.
Relevant to the applicant’s right shoulder, Dr Shojai noted on 7 November 2018 that the pain the applicant suffered in his right shoulder was “much better”[7] and on 19 December 2018 he wrote “unlimited job for right shoulder”.
Family Physio & Sports Injury Clinic
[7] ARD at page 233.
In a report prepared by Ann-Marie Chick dated 21 September 2018[8], Ms Chick noted the applicant had been receiving physiotherapy treatment for his right shoulder injury, with complaint of low back pain “particularly after returning to light duties for his shoulder after a period of being off work”. Ms Chick provided comment she believed the applicant’s low back pain resulted from “deconditioning and altered biomechanics of the right shoulder and upper back as a result of his right shoulder injury”.
[8] ARD at page 457.
In a report addressed to the applicant’s solicitor dated 11 May 2021[9], Ms Chick confirmed the applicant first attended for physiotherapy treatment on 24 August 2017 with complaint of constant ache in the right shoulder with occasional pain down his arm. She confirmed too that just a couple of months later, on 20 October 2017, “he reported lifting a 20kg oil drum that day but using only his left upper limb secondary to the right shoulder issues resulting in pain to the left shoulder”. Ms Chick confirmed the applicant had not received physiotherapy treatment for his left shoulder injury but in response to specific questioning on the issue of causation, she relevantly provided opinion there was a direct relationship between the applicant’s left shoulder injury and the incident occurring on 1 August 2017 and agreed with Dr Lai’s opinion in this regard.
[9] AALD at page 4.
In her reporting Ms Chick made no mention of any injury to the applicant’s right wrist.
Dr Huang
Relevant to his right shoulder injury, the applicant came under the orthopaedic specialist care of Dr Huang. Dr Huang reported on 4 September 2017[10] that the symptoms in the applicant’s right shoulder had improved following ultrasound guided subacromial space steroid injection the previous week. Dr Huang described being “happy” with the applicant’s progress. In his reporting Dr Huang made no mention of any injury to the applicant’s right wrist.
Dr Kuo
[10] ARD at page 29.
Relevant to his right shoulder injury, the applicant subsequently came under the orthopaedic specialist care of Dr Kuo. In his report dated 20 February 2018[11] Dr Kuo recorded a history of the applicant sustaining a hyper-extension type injury to his right shoulder when he tripped when playing soccer in August 2017. He described the applicant as having felt “the shoulder dislocate and self-reduce”. He described the applicant as having been plagued by ongoing pain anteriorly and laterally, worse with abduction and overhead activities. Dr Kuo recommended right shoulder arthroscopy, laberal repair and subacromial decompression.
[11] ARD at page 73.
The applicant subsequently came to arthroscopy, anterior labral reconstruction/repair and debridement of GLAD lesion and suprasinatus rotator cuff repair on 29 March 2018[12]. In his report dated 31 May 2018[13] while Dr Kuo described the applicant’s right shoulder as “slowly improving”, he conceded “his power and movement is a little less than I would have anticipated”. However, in his report dated 28 June 2018[14] Dr Kuo described the applicant as being three months post-surgery and having “turned a corner in the past few weeks”. While he noted on this occasion “[H]is range of movement pain levels have significantly improved as has his power although it is certainly not near normal”, he accepted the applicant’s lifting limit and hours at work could be increased. On review on 31 July 2018[15] while the applicant reported to Dr Kuo “further good improvements to his shoulder” and Dr Kuo noted “[H]e has regained a good range of movement and power although not quite complete as there are still some discomforts with heavier loads”, Dr Kuo accepted on this occasion the applicant’s bilateral lifting load could be increased to 5 – 10kg and he could return to full hours at work.
[12] ARD at page 30.
[13] ARD at page 76.
[14] ARD at page 66.
[15] ARD at page 72.
In his reporting Dr Kuo made no mention of any injury to the applicant’s right wrist.
Dr Kam
Relevant to his consequential low back injury, the applicant came under the care of Dr Kam, neurosurgeon, and came to left L5/S1 microdiscectomy on 24 August 2018[16]. In a short report dated 4 October 2018[17] Dr Kam wrote:
“Mr Daniel Danilidis suffered a large disc herniation at the L5/S1 level requiring surgery at Westmead Hospital in August 2018. This may be related to his work-related injury. He did have an injury to his right shoulder requiring major reconstructive shoulder surgery. Following the shoulder injury, he was relying quite heavily on his left upper extremity to carry things. At [sic] a process of doing so, he was required to do a [sic] more bending and twisting of his torso to allow his left arm to reach down. This may have caused the initial disc herniation”.
[16] ARD at page 31.
[17] ARD at page 33.
The applicant subsequently came to right L5/S1 microdiscectomy and rhizolysis under the care of Dr Kam on 1 July 2019[18].
Independent medical evidence
Dr Lai
[18] ARD at page 50.
Dr Lai provided a report dated 29 January 2019[19] following his assessment of the applicant the same day. Dr Lai’s speciality is general surgery, plastic and reconstructive surgery.
Dr Lai took a history of the applicant dislocating his right shoulder in the incident occurring on 1 August 2017. At the time of assessment the applicant’s right shoulder reportedly remained problematic with pain, stiffness and difficulty experienced in carrying out his daily activities using his right upper limb.[19] ARD at page 35.
Relevant to the alleged consequential injury to his left shoulder, Dr Lai noted the applicant came to right shoulder surgery, which resulted in the applicant’s right arm being placed in a sling for 10 weeks during which time “[H]e compensated heavily with use of his left arm only”. Dr Lai further noted “[A]s a result of the sole use of his left arm, Mr Danilidis started to have pain in his left shoulder associated with stiffness” and relevantly said throughout the applicant’s “slow” recovery he continued to suffer “increasing pain and stiffness in his left shoulder”. Following clinical examination, Dr Lai provided diagnosis which included “[L]eft upper extremity (shoulder) pain and stiffness consequential to over-use from disabled right upper extremity” and assessed the applicant as having sustained 4% upper extremity impairment resulting from injury to his left shoulder (which he converted to 2% WPI).
Relevant to the alleged injury to his right wrist, Dr Lai noted the applicant had sustained a fracture to his right wrist “when he was young”. He noted the applicant’s current complaints included a stiff right wrist which the applicant contributed to landing on his right wrist in the incident occurring on 1 August 2017. Dr Lai correctly noted however there had been no investigations undertaken relevant to the applicant’s right wrist. While clinical examination of the applicant’s right wrist demonstrated reduced flexion, extension and radial deviation compared to that of his left wrist, Dr Lai provided no diagnosis of injury to the applicant’s right wrist. He did however assess the applicant as having sustained 4% upper extremity impairment resulting from injury to his right wrist (which he did not convert to %WPI).
Dr Lai provided a subsequent report dated 7 April 2020[20] following his re-assessment of the applicant by video link and phone the same day. At the time of assessment the applicant’s right shoulder reportedly continued to be problematic with pain, stiffness and difficulty experienced in carrying out his daily activities using his right upper limb.
[20] ARD at page 52.
Relevant to the alleged consequential injury to his left shoulder, Dr Lai noted the applicant’s complaint of an increasing pain and stiffness. The applicant rated his pain between 5 – 7/10 and complained he was unable to lift his son (now aged 3). While Dr Lai accepted there were limitations with clinical examination by video link, Dr Lai provided diagnosis of injury to the applicant’s left shoulder in the same terms as before, but on this occasion assessed the applicant as having sustained 10% upper extremity impairment resulting from injury to his left shoulder (which he converted to 6% WPI).
Relevant to the alleged injury to the right wrist, using Phalen’s sign and reverse Phalen’s sign to measure flexion, extension and radial deviation, reduced flexion and extension of the applicant’s right wrist was demonstrated when compared to his left wrist. As before, Dr Lai provided no diagnosis of injury to the applicant’s right wrist but again assessed the applicant as having sustained 4% upper extremity impairment resulting from injury to his right wrist (which he did not convert to %WPI).
Dr Powell
Dr Powell provided a report dated 29 April 2019[21] following his assessment of the applicant on 16 April 2019. Dr Powell is an orthopaedic surgeon. Dr Powell took a history of the applicant sustaining injury to his right shoulder in the incident occurring on 1 August 2017 in the following terms:
“… he was playing a soccer game for his workplace when he was tackled, fell forward and extended his right arm at the shoulder into full flexion and felt pain about the shoulder region”.
[21] Reply at page 9.
At the time of assessment the applicant complained he experienced shooting pain in his right shoulder area “from time to time” particularly so if he has been driving for more than half an hour with his arm on the steering wheel or if he does repetitive movements at the shoulder. Dr Powell relevantly noted that following surgical treatment to his right shoulder, with his right arm in a sling the applicant “did general activities with his left hand and arm”. Examination of the applicant’s upper limbs at assessment included demonstrated full movement of the right wrist and examination of his left shoulder demonstrated flexion to 170 degrees with extension of 40 degrees, abduction to 160 degrees with adduction of 40 degrees, external rotation to 20 degrees and internal rotation to 70 degrees.
In response to specific questioning as to whether the applicant’s left shoulder injury had “resulted from” or was “in any way causally connected to” the incident occurring on 1 August 2017, Dr Powell answered:
“Mr Danilidis gave no indication of injury to the left shoulder. He does have a slight limitation in motion of the left shoulder and given the widespread pathology in the right shoulder identified in investigations, it is likely that he has similar pathology developing on the left, and this may well explain his limitation in motion. However, he has not had any imaging and so the assessment is purely clinical at this point”.
In response to specific questioning as to whether the applicant sustained injury to his right wrist in the incident occurring on 1 August 2017, Dr Powell answered:
“Mr Danilidis gave no indication of injury to the right wrist on 1 August 2017. There were no investigations of the right wrist in either the material he brought nor in that provided to suggest that he had difficulties in the right wrist that required medical attention. There was no limitation in motion at the right wrist, and there were no responsive symptoms to movement of the wrist identified in general examination of the upper limbs”.
Dr Powell cautioned at that time that the applicant would “be wise” to avoid activities “with his arms in an extended position or above shoulder height, reaching for objects above his head and so on, or doing any activities above his head”.
Dr Powell provided a further report dated 17 August 2020[22] following his re-assessment of the applicant on 27 July 2020. Dr Powell included reference in this report to the applicant resting his arm in a sling following his right shoulder surgery and suffering “severe pain, requiring a lot of analgesics”. Dr Powell reported that with physiotherapy and hydrotherapy treatment the applicant “regained some movement at the shoulder but continued to have difficulties with pain”. At the time of this assessment the applicant complained of constant pain in the anterior aspect of his right shoulder, which was aggravated by any movements of the shoulder. The applicant described his right shoulder as “stiff” and said he could not elevate his arm or move it away from his body without an increase in pain.
[22] Reply at page 21.
On this occasion, relevant to his left shoulder, Dr Powell noted that following his right shoulder injury and during his period of rehabilitation, the applicant had “tended to use his left upper limb for daily activities” and reported the applicant had “started to notice difficulties in the left shoulder in recent months” with complaint of pain of a similar nature to the right shoulder with movement away from his body. Examination of the applicant’s left shoulder demonstrated “tenderness globally” although less than the right shoulder, with flexion to 90 degrees with extension to 20 degrees, abduction of 90 degrees with adduction of 20 degrees, external rotation to 20 degrees and internal rotation to 60 degrees. Dr Powell reported discomfort at the extreme of all ranges “although less marked than the opposite side”. Relevant to his left shoulder, Dr Powell accepted the applicant was experiencing similar symptoms to those experienced by the applicant in his right shoulder but provided no diagnosis “there having been no imaging nor formal assessment by Mr Danilidis’ treating doctor”.
In response again to specific questioning as to whether he maintained his previous opinion that the applicant gives no indication of consequential injury to his left shoulder Dr Powell incorrectly stated the applicant has had imaging of his left shoulder (elsewhere in his report he correctly stated there had to date been no imaging of the applicant’s left shoulder) but noted the applicant reported symptoms occurring “over the last few months without specific incident” and answered:
“Given the findings of widespread degenerate musculoskeletal disease elsewhere in the musculoskeletal system, it is most likely that Mr Danilidis’ left shoulder symptoms relate to this process”.
In response again to specific questioning as to whether the applicant sustained injury to his right wrist in the incident occurring on 1 August 2017, Dr Powell answered:
“Mr Danilidis gave no history of any injury to the right wrist on 1 August 2017, and there were no investigations to suggest that he had any clinical difficulties with the right wrist at this or any other time, and no indication on his physical examination that there was any pathological difficulties with the right wrist”.
Submissions
Both counsel made oral submissions which I have considered. I am grateful to counsel for the assistance provided to me in this particular matter. A copy of the recording of counsels’ submissions is available to the parties.
Determination
Injury
Liability is not disputed for the injury the applicant has sustained to his right shoulder and low back. It is not necessary for me to determine the injuries the applicant has sustained to his right shoulder and low back.
Liability is disputed for the injury the applicant alleges he has sustained to his right wrist and for the consequential injury he has sustained to his left shoulder. The applicant essentially argues he sustained injury to his right wrist in the incident occurring on 1 August 2017 and that he has sustained consequential injury to his left shoulder due to overuse. The respondent does not accept the applicant sustained injury to his right wrist in the incident occurring on 1 August 2017 and neither does the respondent accept the applicant has sustained consequential injury to his left shoulder due to overuse.
The applicant has the onus of proving he has sustained injury to his right wrist in the incident occurring on 1 August 2017 and that he has sustained consequential injury to his left shoulder as a result of the incident occurring on 1 August 2017. This is a question of fact in this matter and consideration of his statement and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[23] McDougall J stated:
“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; (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”.
Right wrist injury
[23] [2008] NSWCA 246.
Section 4 of the 1987 Act defines injury to mean “personal injury arising out of or in the course of employment”. Roche DP considered the meaning of a personal injury in Trustees of the Society of St Vincent de Paul (NSW) v Maxwell James Kear as administrator of the estate of Anthony John Kear[24] observing:
“The authorities establish that a ‘personal injury’ is a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’ (Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45; CLR 286 at [39]). In other words, as stated in [81] it is “a sudden identifiable pathological change”.
[24] [2014] NSWWCCPD 47.
Of significance in this particular matter is there is no contemporaneous mention of the applicant having sustained injury to his right wrist in the incident occurring on 1 August 2017.
In his statement which is made some three years’ after the incident occurring on 1 August 2017 the applicant said he sustained injury to his right shoulder and his right wrist when he fell to the ground on 1 August 2017. The applicant said he assumed the injury he sustained to his right wrist was in the nature of a “minor strain” and given the severe symptoms he was suffering in his right shoulder, treatment was focused on his right shoulder. The applicant said however that “over the years” he had suffered stiffness and intermittent right wrist pain, being symptoms he had not suffered prior to the incident occurring on 1 August 2017 and that he managed his symptoms with analgesic medication.
Dr Lai reported on 29 January 2019 that the applicant’s complaints included a stiff right wrist, which the applicant contributed to landing on his right wrist in the incident occurring on 1 August 2017. Dr Lai noted no investigations had been undertaken relevant to the applicant’s right wrist complaint and he provided no diagnosis of injury to the right wrist. In his subsequent report of 7 April 2020 Dr Lai again provided no diagnosis of injury to the right wrist.
In his reports dated 29 April 2019 and 17 A August 2020 Dr Powell confirmed in response to specific questioning about the applicant’s alleged right wrist injury that the applicant had provided no history of injury to his right wrist in the incident occurring on 1 August 2017, that there were no investigations undertaken relevant to his right wrist, and that there was no indication on clinical examination of “any pathological difficulties with the right wrist”.
Mr Grimes of counsel cautioned against the Commission accepting the history of injury provided by the applicant in his statement given some years after the incident occurring on 1 August 2017[25]. He also cautioned against the Commission accepting the history provided by the applicant in his statement where contemporaneous evidence was lacking[26]. While
Mr Grimes accepted there is often a delay in reporting injury to a treating general practitioner that can be overcome, he correctly observed this was not the case in the circumstances of this particular matter. Mr Carney of counsel accepted that the only evidence before the Commission to support the applicant’s allegation of right wrist injury was the applicant’s statement and the independent medical report prepared by Dr Lai.[25] Watson v Foxman & Ors (1995) 49 NSWLR 315.
[26] Department of Education v Ireland [2008] NSWWCCPD 134.
It is instructive to note that in Malec v JC Hutton Pty Limited[27] Deane, Gaudron and McHugh JJ said at 642-643:
“A common law court determined on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred”.
[27] [1990] HCA 20; (1990) 169 CLR 638.
The absence of identification of injury to his right wrist in the workers injury claim form and employer injury claim form and the absence of documentary evidence from Dr Shojai,
Ms Chick, Dr Huang and Dr Kuo to support any complaint of right wrist injury sustained in the incident occurring on 1 August 2017 (either contemporaneous to the incident or at least during the period between the incident and when it was first reported by Dr Lai on 29 January 2019) is, I believe, a significant omission in the applicant’s case. Particularly so as Dr Shojai, Ms Chick, Dr Huang and Dr Kuo all provided treatment to the applicant for the injury the applicant sustained to his right shoulder in the incident occurring on 1 August 2017.Noting (a) the applicant failed to report injury to his right wrist to the respondent on or soon after the incident occurring on 1 August 2017, (b) the applicant failed to report any right wrist symptoms to his general practitioners, specialists or treating physiotherapist from who he was receiving treatment for his right shoulder, (c) the lack of any corroborative evidence of right wrist complaint during the years between the incident occurring on 1 August 2017 and the assessment by Dr Lai on 29 January 2019, (d) the lack of any diagnosis of injury to the right wrist, and (e) the length of time between incident occurring on 1 August 2017 and the making of the applicant’s statement on 30 October 2020 which provides comment about his right wrist injury, I do not accept the applicant has discharged the onus of proof required of him and I am not satisfied the applicant sustained injury to his right wrist arising out of or in the course of his employment with the respondent.
Left shoulder injury
With allegation by the applicant that the injury he has sustained to his left shoulder is in the nature of a consequential injury, in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan[28] Deputy President Snell relevantly discussed consequential injury, and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012]. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within section 4 of the 1987 Act”.
[28] [2016] NSWWCCPD23.
In the circumstances of this matter is important to recognise that the injury the applicant sustained to his right shoulder in the course of his employment with the respondent may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential injury to the left shoulder. In Kooragang Cement Pty Ltd v Bates[29], Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[29] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463].
It is evident the applicant has been significantly troubled by his right shoulder since the dislocating injury he sustained in the incident occurring on 1 August 2017. Following ultrasound guided subacromial space steroid injection under the care of Dr Huang in late September 2017, the applicant was referred by Dr Shojai for orthopaedic review by Dr Kuo. Dr Kuo reported on 20 February 2018 that the applicant had been plagued by ongoing right shoulder pain as a result of the incident occurring on 1 August 2017 and recommended right shoulder arthroscopy, laberal repair and subacromial decompression. The applicant came to arthroscopy, anterior labral reconstruction/repair and debridement of GLAD lesion and suprasinatus rotator cuff repair on 29 March 2018 after which his right arm was placed in a sling for some 10 weeks. Dr Kuo expressed some disappointment with the applicant’s progress during the early stages of his rehabilitation but described him on 28 June 2018 as having “turned a corner in the past few weeks”. On 7 November 2018 Dr Shojai noted the applicant’s right shoulder pain was “much better” and on 19 December 2018 he wrote “unlimited job for right shoulder”. However when the applicant was assessed by Dr Lai a short time later on 29 January 2019 the applicant’s right shoulder reportedly remained problematic with pain, stiffness and the applicant experienced difficulty in carrying out his daily activities using his right upper limb. Similar complaint was recorded by Dr Lai when he was provided with the opportunity to re-assess the applicant on 7 April 2020, and it is fair to say that Dr Powell also recorded similar complaint when he assessed the applicant on 16 April 2019 and 27 July 2020.
In his statement dated 30 October 2020, the applicant explained that due to his symptomatic right shoulder he became heavily reliant on his left arm. Of note is that as early as 20 October 2017 Ms Chick noted the applicant had experienced pain in his left shoulder after lifting an oil drum “using only his left upper limb secondary to the right shoulder issues”, on 4 May 2018 Dr Shojai noted the applicant could only answer the telephone at work using his left hand, on 4 October 2018 Dr Kam acknowledged the applicant was relying “quite heavily on his left upper extremity to carry things”, and on 5 October 2018 Dr Shojai noted the applicant’s mobility was limited and he “relied quite heavily on his left upper extremity on a regular basis during work”.
Dr Lai provided opinion the applicant suffers left shoulder pain and stiffness consequential to his right shoulder injury and has assessed the applicant with 6% whole person impairment resulting from this injury, and in response to specific questioning about any left shoulder injury while Dr Powell accepted the applicant was experiencing similar symptoms in his left shoulder to those he was experiencing in his right shoulder, he ultimately provided no diagnosis in the absence of diagnostic investigation.
While Mr Grimes cautioned against the Commission accepting the history of consequential injury to the applicant’s left shoulder in circumstances where contemporaneous evidence is lacking (particularly so where the applicant and his treaters are aware of the concept of consequential injury, the applicant having sustained consequential injury to his low back), I am of the view the applicant has provided a credible history regarding the onset of his left shoulder symptoms due to overcompensation following his right shoulder surgery. The applicant enjoys the support of Dr Lai. Furthermore Dr Shojai, Dr Kam and Ms Chick all acknowledge that following right shoulder surgery the applicant was tending to use his left upper extremity rather than right upper extremity during activity. While the applicant may not be supported by Dr Powell, in circumstances where Dr Powell accepted the applicant’s left shoulder was symptomatic but failed to provide a diagnosis in the absence of diagnostic imaging or “formal assessment” by the applicant’s treating doctors, I prefer the opinion of
Dr Lai to that of Dr Powell.I accept the applicant has discharged the onus of proof required of him and I am satisfied the applicant has sustained consequential injury to his left shoulder.
Permanent impairment
Liability is not disputed for the injury the applicant has sustained to his right shoulder and low back arising out of or during the course of his employment with the respondent.
While I have determined the applicant has not sustained injury to his right wrist arising out of or in the course of his employment with the respondent, I have determined the applicant has sustained consequential injury to his left shoulder. It is appropriate the applicant’s claim against the respondent for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injuries he sustained to his right shoulder, left shoulder, low back, scarring, as agreed or determined by me, with date of injury of 1 August 2017 be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
I consider it appropriate the following documents be forwarded to the Medical Assessor:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) AALD and attached documents.
SUMMARY
It is not disputed the applicant sustained injury to his right shoulder and low back arising out of or during the course of his employment with the respondent and I accept the applicant has sustained consequential injury to his left shoulder. I do not accept the applicant sustained injury to his right wrist arising out of or during the course of his employment with the respondent.
The applicant’s claim for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury he sustained to his right shoulder, left shoulder, low back and scarring, as agreed or determined by me, with date of injury of 1 August 2017, is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
The following documents are to be forwarded to the Medical Assessor:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) AALD and attached documents.
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