Diaz v Dimeo Cleaning (NSW) Pty Ltd
[2021] NSWPIC 138
•25 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Diaz v Dimeo Cleaning (NSW) Pty Ltd [2021] NSWPIC 138 |
| APPLICANT: | Celina Elizabeth Maturana Diaz |
| RESPONDENT: | Dimeo Cleaning (NSW) Pty Ltd |
| MEMBER: | Mr Brett Batchelor |
| DATE OF DECISION: | 25 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for condition in applicant’s left shoulder consequent upon undisputed injury to her right upper extremity (wrist and shoulder); the applicant relies on the “common sense test of causation” referred to in Kooragang Cement Pty Ltd v Bates and the comments of Roche DP in Murphy v Allity Management Services Pty Ltd; the respondent does not challenge the applicant’s credit, but relies on what was said in Department of Education and Training v Ireland as to the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine lawful entitlement to compensation; detailed examination of the treating and expert medical evidence; Held- finding that such evidence, when considered with the applicant’s evidence was sufficient to show that the undisputed injury to the right upper extremity materially contributed to the condition in the left shoulder; matter referred to a Medical Assessor for assessment of WPI as a result of injury to the right upper extremity(wrist and shoulder) and condition in the left upper extremity (shoulder) consequent upon that injury. |
| DETERMINATIONS MADE: | 1. The applicant sustained injury to the right upper extremity (wrist and shoulder) on 2 March 2018. Consequent upon that injury the applicant sustained a condition in the left upper extremity (shoulder). 2. The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of injury to the right upper extremity (wrist and shoulder) on 2 March 2018 and condition in the left upper extremity (shoulder) consequent upon injury to the right upper extremity. 3. The documents to be referred to the Medical Assessor are: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments, and (c) Application to Admit Late Documents dated 12 May 2021 and attachment. |
STATEMENT OF REASONS
BACKGROUND
Celina Elizabeth Maturana Diaz (the applicant/Ms Diaz) claims compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury to her right upper extremity (wrist and shoulder) on 2 March 2018 arising out of or on the course of her employment as a housekeeper with the respondent, and condition in the left upper extremity (shoulder) consequent upon that injury.
The respondent does not dispute that Ms Diaz suffered a work related injury to her right upper extremity on 2 March 2018. It does dispute that she suffered the consequential condition in the left shoulder.
The injury on 2 March 2018 was caused when the applicant fell as she was exchanging bath towels while doing the housekeeping at her work place. As she was putting bath towels into a dirty linen bag, she tripped on the cord of the bag and fell forward onto her fully outstretched right arm. She experienced immediate pain in the region of her right wrist and noted deformity. She also had pain in the right shoulder.
Ms Diaz was treated for fractures of the distal right radius and ulna by way of open reduction and internal fixation using a volar plate and screws at Sydney Hospital on 6 March 2018 and discharged home the following day.
The applicant was off work for two weeks before returning on light duties. Since the accident she has continued to experience pain and restricted movement in her right arm as well as worsening symptoms in her back and left arm.
The applicant was seen by Dr David Duckworth, shoulder and elbow surgeon, on 16 July 2018 in respect of a mild problem affecting her right shoulder[1]. He found that she presented with a degenerative right rotator cuff tear which had been exacerbated by the fall, and recommended physiotherapy and avoidance of overhead use of her arm.
[1] Application to Resolve a Dispute (Application) p 55.
Ms Diaz was independently medically examined by Dr J G Bodel, orthopaedic surgeon, on 25 February 2020 who produced two reports of that date[2]. He found that the applicant had suffered a rotator cuff injury to the right and left shoulders in addition to the fractured right wrist. Dr Bodel assesses the applicant as having sustained 10% whole person impairment (WPI) as a result of injury to the right upper extremity and 2% WPI in respect of the left upper extremity. When combined in accordance with the Combined Values Charts in the Guides to the Evaluation of Permanent Impairment, fifth edition, published by the American Medical Association (AMA 5), a total WPI of 12% is obtained.
[2] Application pp 15 and 21.
In a supplementary report dated 12 September 2020[3] Dr Bodel confirmed that the applicant had suffered an injury to the left shoulder which became symptomatic because she was favouring that side while protecting her right side. He also noted that when Ms Diaz returned to work, she was restricted to using her left arm only and could not use her right arm because of the injury. The rotator cuff injury to the left shoulder had arisen because of the frank injury to the right shoulder on 2 March 2018.
[3] Application p 23.
The applicant was independently medically assessed by Dr James Vote, orthopaedic surgeon, on 2 April 2020 at the request of the respondent’s insurer, Employer’s Mutual (NSW) Limited (EML). Dr Vote produced a report dated 17 April 2020[4] in which he recorded that the applicant returned to work some two weeks after the injury on a light duties basis, which involved exclusively use of her left hand, and that she performed those duties full-time until her recent retrenchment approximately two weeks prior to the examination, on the basis of the Corona outbreak.
[4] Reply p 16.
Dr Vote examined the applicant’s left shoulder which revealed to his mind a full range of movement, although Ms Diaz struggled with the extremes of abduction and forward flexion, not due to pain but rather stiffness. Dr Vote suspected that was of a long standing nature, partly to do with the applicant’s age and partly to do with her occupation. He stated that he could not find any clinical restriction in terms of the left shoulder.
Dr Vote noted Dr Bodel’s assessment of 2% WPI of the left upper extremity as a result of the injury. He said that would be the only area where he would differ from Dr Bodel on the basis of his examination on 2 April 2020 and the applicant’s history with regard to her left shoulder. He did not believe that there was any injury or impairment relating to the left shoulder.
Dr Vote assessed 9% WPI as a result of injury to the right upper extremity (wrist and shoulder).
EML issued to the applicant a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 21 May 2020[5] in which it:
(a) referred to the accident in which the applicant was involved on 2 March 2018 and her subsequent treatment;
(b) noted the assessments of Dr Bodel and Dr Vote, and
(c) declined liability for the applicant’s claim for compensation for permanent impairment pursuant to s 66 of the 1987 Act, relying on the opinion and assessment of Dr Vote, his assessment being less than the threshold of 10% WPI required by s 66(1) of the 1987 Act for an entitlement to lump sum compensation.
[5] Reply p 7.
ISSUES FOR DETERMINATION
The parties agree that the only issue in dispute is:
“Did the applicant sustain a condition in her left upper extremity consequent upon the undisputed injury to the right upper extremity on 2 March 2018?”
PROCEDURE BEFORE THE COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a conciliation/arbitration conducted via telephone conference on 12 May 2021. Mr P Perry of counsel appeared for the applicant instructed by Ms Joanne Nehme. The applicant attended on a separate line. Mr W Pardy, solicitor appeared for the respondent.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attachments;
(b) Reply and attachments, and
(c) Application to Admit Late Documents (AALD) dated 12 May 2021 with left shoulder x-ray and ultrasound dated 25 January 2021 attached.
Oral Evidence
There was no application to adduce oral evidence or to cross-examine the applicant.
SUBMISSIONS
The submissions of the parties are recorded, a transcript of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.
Applicant
The applicant relies on what Roche DP said at [57]-]58] in Murphy v Allity Management Services Pty Ltd[6] with reference to the “common sense test of causation” referred to in Kooragang Cement Pty Ltd v Bates[7]. That is, if the injury to the right upper extremity materially contributed to the condition in the left shoulder. In Kooragang, the applicant worker had to establish that the injury she suffered materially contributed to the need for the surgery she claimed in those proceedings.
[6] [2015] NSWWCCPD 49 (Murphy).
[7] (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)
The applicant emphasises the severity of the fall in which she was involved on 2 March 2018, taking her entire body weight on her right arm when she fell and resulting in a fractured wrist. She noted the right shoulder condition diagnosed by Dr Duckworth.
The effect of this injury to the right upper extremity totally immobilised her right arm, and she was left to use her left arm for every activity performed by her, both at work and at home. This exclusive use of the left arm is noted by Dr Vote. The applicant submits that she has acquired the condition in the left shoulder as a result of the significant amount of use of her non-dominant arm.
The applicant submits that her general practitioner, Dr Alameddin, has a helpful history in his report dated 9 February 2021[8], noting that after her injury she returned to work until March 2020 (until the Covid 19 pandemic occurred) and had significant restrictions in, and loss of use of, her right wrist and shoulder, both at work and in her domestic duties. It was Dr Alameddin who ordered the left shoulder x-ray and ultrasound dated 25 January 2021[9], the report of which records a history of progressive shoulder pain and demonstrates a degenerative condition in the left shoulder. The applicant submits that there should be a finding in accordance with Dr Alameddin’s impression expressed in his report, that is, that the left shoulder findings are related indirectly to her right upper limb work injury as she has compensated with overuse of her left shoulder since the injury.
[8] Application p 25.
[9] AALD dated 12 May 2021.
The applicant relies on the findings and conclusions of Dr Bodel in his reports. In respect of the findings of Dr Vote, the applicant submits the doctor has not addressed the question of whether the injury to the right upper extremity gave rise to a condition in the left shoulder. He finds that the applicant did not suffer an injury to the left shoulder but does note that the applicant demonstrated on examination stiffness in her left shoulder which he suspected was partly to do with her age and partly to do with her occupation. This supports that applicant’s case that the condition in the left shoulder arose as a result of the overuse of her left arm at work as she favoured the injured right upper extremity.
Respondent
The respondent submits that, notwithstanding the applicant’s submissions, at various times the applicant has demonstrated both to the treating and qualified doctors a full range of motion in her left upper extremity, and on the whole of the material, the Commission would nor be satisfied that the pain experienced in the left shoulder arose because of overuse following the undisputed injury to the right upper extremity.
The respondent notes that previous proceedings in the Workers Compensation Commission were discontinued on 16 July 2020 at a time when the applicant’s statement evidence consisted of the statement dated 3 December 2019[10], in which the only reference to the left shoulder is at [10] where she records pain and restricted movement in her right hand as well as worsening symptoms in her back and left arm.
[10] Application p 3.
The subsequent statement dated 21 October 2021[11] is dated at a time when a dispute had been raised in respect of the condition in the left shoulder, and at that stage the applicant says at [9] of that statement that as a result of the heavy reliance and use of her left arm, the pain and restriction in her upper left arm and shoulder gradually worsened.
[11] Application p 2.
The respondent submits that if the problem in the left shoulder arose as a result of favouring the right upper extremity, it should have arisen shortly after the applicant’s return to work, and there should have been a record of complaint in respect of the left shoulder to her general practitioner or rehabilitation provider. There is no such evidence of complaint at that time.
The respondent submits that an examination of the clinical notes of the general practitioner, Dr Alameddin, from shortly after the accident[12] reveals that there was no complaint of left shoulder symptoms at that time, and that the doctor first took a detailed history of the work accident and its consequences at the surgery consultation on 15 January 2021[13]. It is apparent from that detailed entry that the applicant had seen another general practitioner previously whose records are not in evidence, and also discussed with a lawyer and the previous GP the development of left shoulder and upper limb pain in the context of compensating use of the left arm. The reason for the visit is listed as workers compensation.
[12] Application pp 77-89.
[13] Application p 90.
The respondent submits that there is no evidence to support the proposition of contemporaneous complaint of left shoulder symptoms made in the period following the fall on 2 March 2018 until the applicant stopped work in March 2020.
The respondent submits that the report of Dr Alameddin dated 9 February 2021[14] assists the respondent’s case in that the doctor records under “LEFT SHOULDER PROGRESS” that the range of motion is intact and full range of motion. Similarly, Dr Vote records full range of motion of the left shoulder.
[14] Application p 25.
The respondent submits that Dr Alameddin proffers a “lukewarm” endorsement of the causal connection between the right upper extremity injury and the left shoulder condition when he says in his report that “It is quite possible that the left shoulder findings are related indirectly to her right upper limb work injury…” This opinion should be considered along with that of
Dr Vote, who notes on examination that the applicant stressed that she had no complaints in regard to her left shoulder and regards it as normal in a functional sense.The respondent refers to what was said in Department of Education and Training v Ireland[15] of the dangers of decision makers relying on findings of credit rather than evidence of facts necessary to determine a lawful entitlement in the instant case. It submits that, while not questioning the applicant’s credit, the best evidence available is that from the applicant’s general practitioner, who it is submitted, gives a “double qualification” on the causation of the left shoulder condition in his report dated 9 February 2021.
[15] [2008] NSWWCCPD 134 at [92].
The respondent submits that the support given to the applicant by Dr Bodel in his supplementary report dated 12 September 2020 refers to the aggravation of an underlying disease process in the rotator cuff, but questions if there has in fact been an aggravation of such process. The respondent notes the findings of the left shoulder x-ray and ultrasound dated 25 January 2021 which it submits are unremarkable, and three years since the fall in March 2018. In short the respondent submits that the applicant was not suffering from any significant condition when it is alleged to have arisen.
Applicant in response
The applicant notes that the respondent is not inviting the Commission to make findings adverse to her credit and submits that it was only after a dispute arose in respect of the left shoulder condition that the applicant decided to give an account of it. She gives evidence in her statement dated 3 December 2019 of worsening symptoms in her left arm since the accident, and Dr Bodel at the consultation on 25 February 2020 specifically records complaint of left shoulder girdle pain and finds on examination a restricted range of movement in both shoulders.
The applicant emphasises the significance of the fall, the immobilisation of the right arm thereafter, her return to work and the exclusive reliance on the left arm for all work and domestic duties. Absent any issue with her credit, the applicant submits that the conclusion that she suffers from a condition in her left shoulder as a result of injury to the right upper extremity is compelling.
FINDINGS AND REASONS
The thrust of the respondent’s submissions is that the applicant did not raise complaint about the condition in the left shoulder until after the she ceased work for the respondent in March 2020 due to the Covid 19 pandemic, and that it was after the previous proceedings in the Commission were discontinued in July 2020 that she first complained to Dr Alameddin about the condition and related it to the injury to the right upper extremity on 2 March 2018. The respondent notes that it was only after the discontinuance of the previous proceedings that the supplementary report of Dr Bodel dated 12 September 2020 was produced in which the doctor provides a firm opinion on the causal link between the right upper extremity injury and the condition in the left shoulder. Dr Bodel did not provide such an opinion in his earlier principal report dated 25 February 2020.
The applicant on the other hand discounts that any adverse inference should be drawn from the discontinuance of the earlier proceedings and says that this is not unusual in proceedings for compensation or personal injury when an expert’s report is perceived by a claimant’s legal advisors not to properly address a matter in issue. The applicant emphasises that there is no attack on her credit, and points to the early complaint of worsening symptoms in the left shoulder in her statement dated 3 December 2019, and the recording by Dr Bodel on his examination and report three months later, on 25 February 2020, of complaint of left shoulder girdle pain. At that time Dr Bodel also records the applicant’s history that the worsening symptoms in the back which the applicant recorded in her statement dated 3 December 2019, had largely recovered.
The current complaints noted by Dr Bodel in his report dated 25 February 2020 are:
“● She has continuing pain and stiffness and weakness of grip strength in the region of the right wrist and hand;
· She has intermittent right shoulder girdle pain and left shoulder girdle pain;
· The lower back has largely recovered.”
The applicant acknowledges that the word “intermittent” in that excerpt may or may not encompass the left shoulder as well as the right shoulder but submits that the latter is the case. In any event there is a clear recording of left shoulder pain, at a time that Ms Diaz was still engaged in employment with the respondent on light duties, with continuing pain, stiffness and weakness of grip in the right wrist and hand and intermittent right shoulder girdle pain. Dr Vote records the history that the light duties involved exclusively the use of the left hand.
Dr Duckworth said that when he saw the applicant on 16 July 2016 she presented with a degenerative right rotator cuff tear which had been exacerbated by the fall and recommended that that she avoid overhead use of the arm. Dr Bodel in his report incorrectly refers to Dr Duckworth recommending to the applicant the avoidance of overhead use of both arms. Nevertheless, it is clear that the applicant was not able to use her right arm on her return to work two weeks after the fall and continued to experience restricted use of that limb, in both work and domestic duties.
In my view that applicant’s evidence in her later statement that as a result of heavy reliance (on) and use of her left arm, the pain and restriction in her left upper arm and shoulder gradually worsened, should be accepted. I do not draw any adverse inference from the fact that she did not report the connection between the injury to the right upper limb and symptoms in the left shoulder to her general practitioner, Dr Alameddin, until December 2020 and January 2021. Nor in accordance with the applicant’s submission referred to in [38] above do I draw any adverse inference from the discontinuance of the earlier proceedings in July 2020 and the obtaining of a further report from Dr Bodel. Dr Bodel in his earlier report dated 25 February 2020 said that Ms Diaz suffered a rotator cuff injury in both shoulders, which was not the case put forward by her in respect of the left shoulder. It was not unreasonable for the applicant’s legal advisers to seek a further report from him clarifying the manner in which the left shoulder condition was claimed to have arisen.
The history recorded by Dr Alameddin on 15 January 2021 referred to at [29] above is consistent with the worsening symptoms in the applicant’s left arm of which she complained in her first statement dated 3 December 2019 whilst engaged in light duties at work. Ms Diaz reported to Dr Alameddin that one month into her light duties she noted left upper limb pain, particularly after prolonged use at work, which continued currently as a discomfort. An examination of Dr Alameddin’s clinical notes in evidence reveals that a history in very similar terms to that recorded in a telephone consultation on 15 January 2021 was recorded by the doctor one month earlier on 16 December 2020, apparently in person[16]. It appears from that entry that after the injury in 2018, the applicant returned to light duties only for a few months then transitioned to normal duties for four hours a day which she continued until March 2020. She retired from her employment in September 2020. In that clinical note Ms Diaz also describes the significant effect that her injury had on her domestic activities.
[16] Application pp 91-92.
I do not accept that Dr Alameddin has given qualified support only to the applicant’s case as submitted in [32] above. Dr Alameddin raises the possibility of a connection between the left shoulder findings and the right upper limb injury at work. That opinion appears to be based on the history he received from the applicant in December 2020 and January 2021.
This history is also consistent with the history given by the applicant to Dr Vote and recorded in his report dated 17 April 2020, about four weeks after Ms Diaz was stood down from work. Although Dr Vote recorded no current complaints in regard to the left shoulder, he did find that Ms Diaz struggled with the extremes of abduction and forward flexion in the left shoulder which he suspected was of a long-standing nature partly to do with her age, and more significantly, her occupation.
In my view the applicant has discharged the onus on her to show that she has suffered a condition in the left shoulder consequent upon the undisputed injury to the wrist and shoulder in the right upper extremity on 2 March 2018. There is no adverse finding in respect of the applicant’s credit, and I accept her evidence that on her return to work two weeks after the injury on 2 March 2018 she had to use her left hand exclusively, initially on light duties, then on normal duties four hours a day. These continued until cessation of work in March 2020. The applicant continued to experience significant problems in carrying out her domestic duties. The injury to the right upper extremity has materially contributed to the condition in the left shoulder.
SUMMARY
The applicant sustained injury to the right upper extremity (wrist and shoulder) on 2 March 2018. Consequent upon that injury the applicant sustained a condition in the left upper extremity (shoulder).
The matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment as a result of injury to the right upper extremity (wrist and shoulder) on 2 March 2018 and condition in the left upper extremity (shoulder) consequent upon injury to the right upper extremity.
The documents to be referred to the Medical Assessor are:
(a) the Application and attachments;
(b) Reply and attachments, and
(c) AALD dated 12 May 2021 and attachment.
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