Dent v Coles Group Supply Chain Pty Ltd
[2024] NSWPIC 68
•20 February 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Dent v Coles Group Supply Chain Pty Ltd [2024] NSWPIC 68 |
| APPLICANT: | Dean Jonathan Dent |
| RESPONDENT: | Coles Group Supply Chain Pty Limited |
| MEMBER: | Paul Sweeney |
| DATE OF DECISION: | 20 February 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; claim by worker for permanent impairment compensation pursuant to section 66 alleging injury to both shoulders; employer accepts liability in respect of left shoulder but disputes that worker suffered injury or a consequential medical condition of the right shoulder; Coote v Kelly and Kooragang Cement Pty Limited v Bates considered; relevance of absence of contemporaneous complaint when injury occurred many years before claim; finding that worker had not established either injury to or a consequential medical condition the right shoulder; Held –quantum of impairment of right shoulder referred to a Medical Assessor. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant has not established that he suffered injury to his right shoulder or a consequential medical condition of his right shoulder as a result of employment injury. 2. Remit the matter to the President for referral to a Medical Assessor to certify the degree of whole person impairment as a result of injury to the applicant’s left upper extremity (shoulder) which is deemed to have occurred on 5 May 2023 (date of claim) as a result of his employment with the respondent on and before 22 March 2005. 3. Medical Assessor to have access to the Application to Resolve a Dispute, the Reply, the Application to Admit Late Documents dated 22 January 2024 and the documents attached to each. |
STATEMENT OF REASONS
BACKGROUND
Dean Jonathan Dent (the applicant) was diagnosed with severe glenohumeral joint arthritis of the right shoulder in 2018. He underwent a right total shoulder replacement at Gosford Hospital on 29 January 2020. He has made an incomplete recovery from that surgery.
Between 11 November 1999 and 22 March 2005, the applicant was employed by Coles Group Supply Chain Pty Limited (the respondent) as an order selector. This was undoubtedly arduous physical work.
During his employment, the applicant suffered injuries to his left shoulder for which he claimed compensation. He also alleges that he suffered an injury to his right shoulder in the course of his employment which caused or materially aggravated osteoarthritis in his right shoulder and the need for surgery in 2020. Alternatively, he alleges that the medical condition of his right shoulder resulted from the employment injuries to his left shoulder. He alleges there was over use of his right arm as a result of restriction in left arm movement caused by his employment injuries.
The respondent accepts that the applicant suffered injury to the left shoulder during the course of his employment. It disputes, however, that it is liable to pay compensation in respect of the injury/medical condition of the right shoulder.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
When the matter came on for a conciliation conference and arbitration hearing on 1 February 2024, Mr Tanner, of counsel appeared for the applicant and Mr Baker, of counsel appeared for the respondent. I was informed by counsel that the parties were unable to reach a settlement of the issue of whether the applicant suffered injury or a consequential medical condition of his right shoulder as a result of employment injury. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the matter but were unable to fashion a mutually acceptable agreement.
By these proceedings, the applicant claims permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injuries to his right and left shoulders in the course of his employment and/or a consequential medical condition of his right shoulder.
EVIDENCE
The evidence before the Personal Injury Commission (Commission) is as follows:
(a) the Application to Resolve a Dispute (the Application) and the documents attached;
(b) the Reply and the documents attached, and
(c) an Application to Admit Late Documents dated 22 January 2024.
There was no objection to the tender of any of the documents referred to above at the arbitration hearing. There was no application to adduce further oral or written evidence.
SUBMISSIONS
The submissions of the parties are recorded and I do not propose to reiterate each of the arguments put by counsel in these short reasons. I will attempt to address those arguments in resolving the dispute. However, given the nature of the submissions it is important to record aspects of counsel’s argument.
Midway through his submissions, Mr Tanner argued that the dispute notice issued by the respondent did not explicitly deny that the applicant’s right shoulder condition resulted from the accepted injuries in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Accordingly, the respondent was precluded from denying that the medical condition of the left shoulder resulted from employment injury. If this argument is accepted it would be unnecessary to further consider the parties submissions on the issue of a consequential medical condition of the right shoulder.
Mr Baker argued in his submissions in reply that it was evident from the s 78 Notice that the respondent denied all liability for the medical condition of the applicant’s right shoulder whether it was caused directly by an injury or indirectly by the altered mechanics of use of the shoulders as a result of injury to the left shoulder. Given the potential consequences of this submission, it is necessary to determine it at the commencement of these reasons.
Mr Tanner also submitted that I would accept the applicant’s evidence that he performed arduous physical work for the respondent and that he suffered a right shoulder injury in the course of that employment. The notes and reports of medical practitioners which suggested the contrary should be treated with caution in accordance with the reasoning in Davis v Council of the City of Wagga Wagga[1] and the other authorities that have addressed the use which may be made of medical records in personal injury cases.
[1] [2004] NSWCA 34.
Mr Baker submitted that the Commission was not obliged to accept the applicant’s evidence when it was incongruent with a substantial body of other evidence.
Mr Tanner also argued that his qualified medical practitioner Dr Endrey-Walder, a general surgeon had expressed a clear opinion on the issue of injury and had provided a logical medical hypothesis as why the applicant’s right shoulder condition resulted from injury. This theory had not been rebutted by the opinion of the respondent’s qualified orthopaedic surgeon, Dr Powell. Dr Powell’s opinion on the issue of causation was no more than a mere ipse dixit.
Mr Tanner referred to the evidence of the applicant’s treating doctors who had expressed opinions consonant with that of Dr Endrey-Walder. He referred to a number of factors that militated in favour of a causal connection between injury and the condition of the right shoulder including the undoubtedly arduous nature of the applicant’s work and the otherwise inexplicable development of gross osteoarthritis in the right shoulder of a young man.
Mr Baker submitted that the contemporaneous medical evidence contained no reference to a right shoulder injury/condition while the respondent employed the applicant. Rather, the clinical notes referred to an injury to the applicant’s right shoulder that occurred in his private life. He submitted that the evidence also established that the applicant had reasonably good use of his left shoulder at the time he ceased work with the respondent in 2005.
It will be necessary to return to these arguments when resolving the issues in dispute. It is first necessary to consider the evidence of the applicant and that of Dr Endrey-Walder and Dr Powell. What follows is not intended to be a comprehensive account of their evidence. Rather, I set out compendiously the salient points so that the parties can understand the manner in which the Commission has resolved their dispute.
Applicant’s evidence
By his written statement dated 13 November 2023 the applicant states that he reported a number of injuries to his left shoulder and upper arm during the course of his employment. He specifically refers to injuries to the upper arm on 3 May 2000 and to the shoulder on 14 December 2001, and 2 August 2004. He states that he commenced working for the respondent on 11 November 1999. The applicant says that his work in the warehouse picking and packing orders was “physically arduous and repetitive”. It involved “a lot of gathering goods with my arms elevated well above shoulder height.”
The applicant says that he sustained the injury on 14 December 2001 when placing a carton on top of a half-loaded pallet. He experienced a tearing sensation at the left shoulder and experienced “immediate pain”. The applicant came under the care of Dr Kam, a general practitioner, following that injury. He was off work for a month and returned to work on light duties.
The applicant states that ultimately he returned to work on full duties as his “left shoulder seemed fine”. However, on 2 August 2004 he was lifting crates of soft drink above shoulder height when he experienced further problems in his shoulder. He returned to see Dr Kam and underwent a series of investigations of the shoulder. He ultimately consulted Dr Jerome Goldberg, the orthopaedic surgeon, on 13 August 2004. He underwent further ultrasound-guided injections of the left shoulder in early 2005.
The applicant ceased working for Coles on 22 March 2005 as they were unable to provide light duties consonant with the condition of his left shoulder. Subsequently, his employment was formally terminated in 2007 when he accepted a redundancy.
In respect of his right shoulder, the applicant says this:
“During the same time, I was having problems with my left shoulder, my right shoulder was also becoming sore. When I would raise my arm above shoulder height it would make a grinding sound. I am fairly sure I reported the right shoulder injury or at least talked about it to my employer and to my doctors. I would say that my right shoulder troubles started because of a combination of both my work duties and also because I was required to rely on my right shoulder more than the left because the left was causing me troubles.”
The applicant records that following the cessation of his employment with the respondent he worked for Easy Build cutting timber for “less than a year”. He stated that during that employment he operated a drop saw. There was no lifting or repetitive overhead work involved.
Then, in 2015, the applicant worked for Bias Boating which was mainly retail work. Again, there was no repetitive heavy lifting or work above shoulder heights. The applicant then worked on a casual basis for Luxury House Boats performing maintenance work. He says that he resigned because he was unable to perform overhead work.
Finally, the applicant worked performing general maintenance for the Royal Institute for Deaf and Blind Children. He continues:
“In summary, ever since stopping work at Coles, I have never used my arms above shoulder height or done work that involved repetitive heavy lifting. Prior to gaining employment with each company, I disclosed both my left and right shoulder troubles. I had lost many jobs and been rejected from many jobs because of my left and right shoulder troubles.”
The applicant says that while initially his left shoulder was “the most trouble and badly effected” over the years his right shoulder became worse as he would rely on it for “various domestic and work tasks”.
The applicant recounts that he saw Dr David Daoud on 3 September 2018 as his shoulder was progressively worsening. He was referred for X-rays. In due course he was referred to an orthopaedic surgeon, Dr Burneikis and underwent ultrasound-guided injections. In February 2019, however, Dr Burneikis suggested that the applicant may require right shoulder replacement. Subsequently, on 9 December 2019, the applicant saw Dr Seung-Min Youn, a Fellow for Dr Bateman, who also recommended right shoulder replacement surgery. The applicant underwent this surgery on 29 January 2020. He says that he has not made a complete recovery. He says that he struggles to perform all of the activities of daily living. He has limited use of both shoulders. He has particular difficulty performing activities that involve using his arms above his head.
Dr Endrey-Walder
Dr Endrey-Walder saw the applicant at the request of his solicitor and provided reports of 1 May 2023. He recorded a history of the applicant’s left shoulder difficulties at work between 2001 and 2005. He referred specifically to the notes of the applicant’s treating doctors during this period. He expressed this opinion:
“As a direct consequence of the nature and conditions of his daily work with Coles-Myer over a period of 5 years or so, Mr Dent became symptomatic at the left shoulder, and in due course at the right shoulder, the latter likely, at least in part being a consequential injury following the multiple injuries recorded at the left shoulder.
I note that over the years, while in the employ of Coles-Myer, most of the medical attention was directed at his left shoulder where he had a number of steroid injections, physiotherapy treatment, a ‘Fit for Work’ programme mainly gym-based.”
Dr Endrey-Walder expressed the opinion that the nature of the applicant’s work was the reason for symptoms in both shoulders. On the right side there was an “element of overuse, secondary to left shoulder problems over the previous years”. He assessed the applicant as suffering 23% whole person impairment (WPI) of the right upper extremity, 11% of the left upper extremity and 2% as a result of scarring of the right shoulder.
Dr Richard Powell
Dr Powell saw the applicant at the request of the respondent on 26 July 2023 and provided a report of 29 September 2023. He recorded a similar history of injury to the left shoulder as Dr Endrey-Walder. He recorded a slightly different history of post-injury employment to that recorded in the applicant’s statement. He recorded that the applicant worked as a glazier, although he did not state the period for which the applicant performed this work.
Dr Powell recorded that the applicant informed him that his right shoulder became increasingly symptomatic over a period of several years while undertaking his post-injury employment. He recorded the referral to Dr Burneikis and Dr Youn and the surgery performed on 26 February 2020.
Dr Powell expressed the opinion that the applicant may have persistent rotator cuff tendinopathy and subacromial bursitis of the left shoulder the as a result of his employment with the respondent between 2001 and 2005. In respect of the right shoulder, he records the following:
“There is no history of any specific injury to the right shoulder occurring in the course of his employment with Coles. Mr Dent describes the gradual onset of right shoulder symptoms though as far as I can ascertain the first investigation was in 2019 where plain x-ray and MRI scan demonstrated advanced glenohumeral joint osteoarthritis with almost complete loss of joint space. This is an unusual finding in a gentleman of this age. There is unlikely to be any causal connection between soft tissue injuries of the right shoulder in 2002 and 2004 and the subsequent development of advanced osteoarthritis on the contralateral side 15 years later. It is noted that in the intervening period he undertook a number of physically demanding roles for various other employers though without any specific history of injury of which I am aware. No definitive cause for his right shoulder osteoarthritis was identified. The possibility of avascular necrosis was raised by Dr Burneikis though the investigative appearances were not considered to be typical.”
Subsequently, the doctor continued:
“There is no history of any frank incident. The condition represents a degenerative disease process. The aetiology is unknown. For the reasons I have outlined above, employment with Coles would not be considered to represent the main contributing factor in either the development or aggravation of the degenerative disease process involving the right shoulder. There is no causal, temporal or consequential link between them.”
The doctor also stated:
“I am not aware of any further investigations being performed on the left shoulder. It is difficult to explain his ongoing shoulder symptoms solely on the basis of a series of two minor workplace incidents sustained over 20 years ago. However, it is conceivable that as a result of that employment he did sustain some rotator cuff pathology and his employment would be considered to represent a substantial contributing factor in the development of that condition.”
Dr Powell thought that the applicant was fit for work on suitable duties but should avoid repetitive use of his upper limbs, “particularly away from the body or above shoulder height.”
DISCUSSION AND FINDINGS
Notice
It is first necessary to consider Mr Tanner’s argument that the respondent was precluded from disputing the causal nexus between the applicant’s left shoulder injuries and his right shoulder condition.
In accordance with the case law, it is necessary for these reasons to be explicit in the dispute notice given by the employer. In this case the notice only briefly addresses the issue of the consequential condition of the right shoulder. There is also a mistaken reference to the right shoulder in the notice. Nonetheless, I have concluded that the notice did clearly dispute a consequential link between the left arm injury. The notice recorded the following:
“Dr Powell considered there is no history of any specific injury to your right shoulder occurring in the course of your employment with Coles and there is unlikely to be any causal connection between soft tissue injuries of the right shoulder in 2002 and 2004 and the subsequent development of advanced osteoarthritis on the contralateral side 15 years later. Dr Powell also considers that in the intervening period you undertook a number of physically demanding roles for various other employers though without specific history of injury.
For the reasons outlined above, Dr Powell did not consider your employment with Coles to represent the main contributing factor in either the development or aggravation of the degenerative disease involving the right shoulder and is of the view there is no causal, temporal or consequential link between them.” (My italics)
Subsequently, the notice states that:
“Dr Powell assessed 9% WPI for the left shoulder. He did not provide an assessment for the right shoulder as he did not believe there is sufficient evidence to conclude that your right shoulder condition is the result of any injury sustained in the course of your employment with Coles.” (My italics)
The notice continues:
“You are not eligible for permanent impairment lump sum compensation because your compensable left shoulder injury has not resulted in at least 11% whole person impairment as required by s 66(1) of the Workers Compensation Act 1987.”
While the reference to right shoulder injury in 2002 and 2004 in the first paragraph quoted above is obviously an error, in my opinion the notice clearly conveys that the respondent had formed the view that the applicant did not have a consequential condition of his right shoulder as a result of the left shoulder injuries. At the preliminary conference in the matter both parties proceeded on the basis that both injury and consequential medical condition of the right shoulder were issues that required resolution or determination by the Commission at an arbitration hearing. While it may not be incumbent on the applicant to specifically raise noncompliance with s 78 at the preliminary conference as an issue, the manner in which the conference was conducted is completely consistent with my view that the notice unambiguously puts in issue a consequential medical condition of the right shoulder.
Injury
It was not suggested at the that there was any contemporaneous medical evidence that indicated an injury to the applicant’s right shoulder during the course of his employment with the respondent. The clinical notes of the medical practitioners who treated the applicant during his employment record no history of injury or any complaint of difficulties with use of the right arm resulting from the left arm injury.
The only reference to the right shoulder to which I was referred is contained in the notes of Dr Kam of 12 March 2003 and 15 March 2003 when the doctor recorded the following:
“Also fell on his (R) shoulder 2 weeks ago, very painful and unable to abduct without pain.”
The applicant was unable to abduct his shoulder without pain at this examination. He was referred for an X-ray and an ultrasound. The ultrasound may have shown the supraspinatus tear, although it is not possible to draw any inferences from the notes as to the nature of the injury suffered by the applicant at that time.
Mr Baker argued that this injury was of significance. It was an injury to the right shoulder which occurred outside the course of the applicant’s employment. It was not addressed in the applicant’s evidence and no medical practitioner had taken a history of it in more recent times. Whilst there is some ambiguity in the doctor’s notes, the applicant did not suggest that this injury occurred at work. It was not pleaded in the Application, addressed in the applicant’s evidence, and no such submission was made at the arbitration hearing.
The next reference to right shoulder pain that I can find in the medical history is contained in the note of Dr Tadros on 20 April 2018. The following appears:
“R shoulder chronic pain for 2 years.
Used to lift heavy objects
Restricted ROM mainly IR
Palpitation: tenderness over bicipital grove (sic)
Mouvment: (sic) painful limitation of RM mainly IR
Empty CAN test – ve impingement
- ve drop arm test”
The doctor referred the applicant for an ultrasound.
The applicant was referred to Dr Burneikis, the orthopaedic surgeon, by Dr Daoud on 6 February 2019. Dr Burneikis recorded the following history in respect of the right shouder:
“He has had stiffness in the shoulder for over ten years but in the last 12 months has had severe pain. He has no history of single trauma or injury. He attributes the shoulder problem to the time he was working at Coles doing picking and warehouse work. He worked there for 6 years and after 4 years noticed the shoulder pain and stiffness to the point he was unable to lift the arm above the shoulder height. He left Coles to try other work including glazier, maintenance man at a school and other jobs. He has global shoulder pain at rest and with movement. He has pain that wakes him from sleep. He is not able to swim or surf which were his main previous hobbies.”
The doctor concluded that the applicant had advanced osteoarthritis of the shoulder. He stated that:
“At this age it is a little unclear as to the aetiology given it is unusual for someone with a history of no previous surgery or injury to have arthritis at this age. There is the possibility of a vascular necrosis given he has a history of alcoholism although he is sober now but x-ray does not look absolutely typical of this in terms of humeral head collapse or deformity.”
When the applicant came into the public hospital system, he was seen by Dr Youn, an orthopaedic surgeon, who recorded the following history:
“This patient is a 42-year old right hand dominant who has been having right shoulder trouble over the last 12 years. He remembers a clear incident/accident 12 years ago at work when he was lifting heavy objects and he could not move his shoulder at the time. He went through workers compensation at this time to have this sorted. However, over the years, the shoulder pain has worsened and now the x-ray showing severe arthritis of the glenohumeral joint, which could be related to his previous trauma as he is quite young. Dr Burneikis saw this patient and now he has been allocated to my list.”
The applicant saw a number of medical practitioners and allied health professionals during his employment with Coles. Unfortunately, the report of Dr Goldberg, the shoulder specialist to whom he was referred is not in evidence, or alternatively, neither party referred me to it.
On 27 April 2025, a physiotherapist, Mr Peres, reported to Dr Kam and others that the applicant had “done quite well throughout his work conditioning program”. He noted that the respondent had deemed him “unsuitable to return” due to “the repetitive nature of his history.” He said this:
“As above, he indicates that tiling might be an option and he seems keen about this avenue and it could be built upon. I believe he could be certified for lifts ‘as tolerated’ given the excellent progress that he has made throughout his program. As an initial precaution his overhead should be kept probably to 10kg. I have asked him to visit his doctor again, prior to his schedule review on the 5th June 2005, should an opportunity arise and if the only impediment was his current certificate which has him limited to 10kg.”
Subsequently, on 22 September 2005, the applicant saw Dr Paul Limbers, an orthopaedic surgeon at the request of the respondent. Dr Limbers noted that he had first examined the applicant in August 2004. He noted that:
“When I initially examined him the only real abnormality was some prominence at the outer acromioclavicular joint with tenderness.”
Dr Limbers recorded that the applicant presented with left shoulder symptoms. He recorded the following:
“On examination there was without any question on physical examination full movements in the left shoulder with slight prominence again of the left acromioclavicular joint.”
He expressed the opinion that he was unable to determine any positive diagnosis apart from the “slight problem of the acromioclavicular joint”. He expressed the opinion that there was no relationship between his incapacity and any injury that he suffered in his employment. He stated that there was “no possibility of any permanent impairment”. He thought that he was fit for normal duties.
On 22 November 2005, the applicant saw Dr Muratore, a sports physician, at the request of the respondent. The applicant reported experiencing recurrent discomfort at the left shoulder, especially with activities above shoulder height. Dr Muratore stated that examination of the applicant’s right shoulder was normal. There was a full range of movement of his left shoulder, although the applicant had a “prominent acromioclavicular joint”. The doctor expressed the opinion that the applicant had some early osteoarthritis in the acromioclavicular joint. He stated that this was constitutional and that the effects of any aggravation had now ceased. He accepted that the applicant had suffered some tendonitis and a subdeltoid bursitis as a result of his work but this had “improved with appropriate treatment”. The doctor said this:
“Theoretically he is now fit for his pre-injury duties.
Because of the pre-existing degenerative changes at the acromioclavicular joint, theoretically he is at risk of sustaining frequent aggravations if he were to work lifting significant weights at or above shoulder height. Therefore, it would be prudent to suggest that he continue working in any form of employment for which he is qualified by way of experience and qualifications as long as this entails no repeat lifting above shoulder height.
I believe he has fully recovered from his previous injury.
He does not require any further medical treatment but should be encouraged to continue with a home exercise program.”
Support for the applicant suffering an injury to his right shoulder in the course of his employment with the respondent comes from Dr Youn and Dr Endrey-Walder. Dr Youn noted a “clear incident/accident” 12 years ago when the applicant “was lifting heavy objects and he could not move his shoulder at the time”. The doctor records that the applicant’s osteoarthritis “could be related to his previous trauma as he is quite young.”
But the evidence does not establish any frank injury to the right shoulder in the course of the applicant’s employment such as that recorded by Dr Youn. It is not referred in any of the contemporaneous medical histories or the applicant’s statement. Indeed, no such frank incident is pleaded or relied upon in his case. Accordingly, the opinion of Dr Youn as to the possible connection of the applicant’s right shoulder injury to his employment is unpersuasive.
Dr Endrey-Walder attributes the applicant’s right shoulder symptoms to the nature of his work. That opinion is difficult to accept given the lack of recorded complaint in the contemporaneous medical record. There is nothing in the material produced from Dr Kam which would suggest any complaint of right shoulder pain related to a work injury during a period of approximately a decade after the applicant first complained of left shoulder symptoms. Importantly, neither Dr Limber nor Dr Muratore, who examined the applicant in 2005, recorded any history of right shoulder pain. Dr Muratore specifically examined the applicant’s right shoulder during his examination and found it to be normal.
For the applicant to prove injury it is, of course, necessary to establish either some physiological change or, alternatively a material aggravation, exacerbation etc of a pre-existing disease in the shoulder. When there is no medical treatment relatively contemporaneous with the alleged cause injury can be difficult to prove. In this case, there is the added difficulty that the applicant did complain of pain his right shoulder which necessitated medical treatment and a referral for x-rays and an ultrasound. That incident, however, did not occur in the course of the applicant’s employment.
In the absence of any contemporaneous material during or following the applicant’s employment with the respondent, I conclude that the applicant has not established injury to his right shoulder in the course of his employment. In my opinion the evidence of Dr Muratore and Dr Powell, which I accept, militate against such a finding.
CONSEQUENTIAL MEDICAL CONDITION
There is no doubt that the applicant has a serious medical condition of his right shoulder. At issue is whether the osteoarthritis in the shoulder resulted from the proven injuries to the applicant’s left shoulder in the course of his employment with the respondent in accordance with the principles set out in Kooragang Cement Pty Limited v Bates.[2] In that case Kirby P, with whom Sheller and Powell JJA agreed, said this:
“Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. Similarly, 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 common sense 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. In each case, the question whether the incapacity or death ‘results from” the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including where applicable expert opinions.”
[2] (1994) 35 NSWR 452 (Kooragang Cement).
Kirby P continued thus:
“But in each case the judge deciding the matter will do well to return, as McHugh JA advised to the statutory formula and ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
As the claim before the Commission is solely for permanent impairment, the jurisdiction of a member is to determine liability issues including, in this case, whether the applicant’s left shoulder injuries caused or materially aggravated the osteoarthritis in his right shoulder. Whether the injury or aggravation is transient or permanent, or whether a deduction is required to be made by reason of any prior or supervening event is solely within the prerogative of a medical assessor.[3]
[3] Jaffarie v Quality Castings Pty Limited [2014] NSWWCCPD (10 March 2015).
The applicant’s medical case is largely dependent on the opinion of Dr Endrey-Walder, his qualified general surgeon. To reiterate, the doctor states:
“On the right side there would also be an element of overuse, secondary to the left shoulder problems over the previous years.”
Neither Dr Burneikis nor Dr Youn, the treating orthopaedic surgeons comment on the likelihood of a connection between the applicant's left arm injury and the development of osteoarthritis in the applicant’s right arm. Dr Burneikis, of course, raised the possibility that the osteoarthritis of the right shoulder may relate to a vascular necrosis, although the radiological evidence was not necessarily consistent with this hypothesis. Dr Powell does not accept that there is a connection between the applicant’s left shoulder injuries and the subsequent development of osteoarthritis in his right shoulder.
It is evident that there is an inconsistency in the histories recorded by the treating specialists. Dr Youn records a “clear history” of a specific accident/injury. Dr Burneikis recorded that after 4 years of working at Coles the applicant was “unable to lift his right arm above shoulder height because of shoulder pain and stiffness”. Both these medical histories, however, are quite different to the contemporaneous medical evidence. When Dr Muratore examined the applicant 22 November 2005, several months after he ceased work for the respondent on, he recorded a normal range of movement of the right arm on examination and did not record any complaint in his history of right arm pain. He recorded that the applicant was able to pursue his recreational activity of surfing.
Subsequently, on 12 April 2006, Dr Mitchell examined the applicant and recorded the following:
“Right arm: the shoulder, elbow, wrist and hand were normal.
Left arm: the shoulder demonstrated normal profile for muscle bulk, no muscle wasting was seen. Abduction of the arm laterally was possible to the normal 180 degrees, forward flexion of the arm was possible to the normal 180 degrees. Adduction extension and rotation in each direction were normal.”
Once again, the doctor did not record any complaint of right arm pain.
While these opinions are not entirely consistent with Dr Kam’s notes, it is evident that by 3 May 2006, Dr Kam recorded that on examination of the applicant’s left shoulder there was “no local tenderness, good range of movement”. On 21 August 2008, Dr Kam recorded that the applicant was generally well. He was working in a boating shop. There had been “no further injury.” After that appointment the applicant saw Dr Kam intermittently until 16 September 2011. Throughout this period there is no further reference to difficulties with the applicant’s left shoulder. Importantly, there is no reference to any right shoulder problem.
While one must view the medical evidence referred to above with some caution, it is equally true that the memory of witnesses when recounting events which occurred a long time ago is often flawed.[4] When the applicant saw Dr Burneikis and Dr Youn, he was recounting events that occurred 13 years previously. To provide an accurate history so long after the event is an exacting task.
[4] Coote v Kelly; Northam v Kelly [2016] NSWSC 1447 and the authorities referred to therein.
In the absence of any recorded complaint, and in the context of two normal medical examinations of the applicant’s right shoulder by specialist medical practitioners, I find it difficult to accept his dramatic history of being unable to raise his right arm above shoulder level while he was employed by the respondent. The only reference to right shoulder pain in the above record is a history recorded by Dr Kam of a fall which is not pleaded or relied upon in these proceedings and which occurred outside the course of the applicant’s employment.
Mr Tanner criticised the opinion of Dr Powell on causation of right shoulder pain as a mere ipse dixit. But Dr Endery-Walder’s opinion is vague and unsatisfactory. To state that there would be “an element of overuse” hardly addresses the question of whether the medical condition of osteoarthritis results from injury. Dr Endery-Walder’s opinion is based on a history that is incongruent with the contemporaneous medical evince in the period of his employment and for several years thereafter. I reiterate that none of the applicant’s treating doctors directly address the issue of the relationship between the applicant’s left shoulder injuries and the osteoarthritis in his right shoulder.
For the reasons given above, I have concluded that the applicant has not established on the balance of probabilities that he suffered an injury in the course employment to the right shoulder or that the relevant medical condition of his right shoulder results from the accepted employment injury to the left shoulder. The application alleges that the latter injury was a disease injury and this was not disputed at the arbitration hearing, although nothing really turns on the precise characterisation of the injury. Accordingly, as there is a dispute as to the degree of impairment of the applicant’s left upper extremity, I propose to remit that matter to the President to enable certification of the degree of permanent impairment to be made by a Medical Assessor.
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