Dizon v HPM Industries Pty Limited
[2010] NSWWCCPD 23
•18 February 2010
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | ||||||
| STATUS: Reconsideration: This decision is a reconsideration of the decision in Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15 | ||||||
| CITATION: | Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 23 | |||||
| APPELLANT: | Josephine Dizon | |||||
| RESPONDENT: | HPM Industries Pty Limited | |||||
| APPLICANT FOR RECONSIDERATION: | HPM Industries Pty Limited | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | |||||
| FILE NUMBER: | A1-4386/09 | |||||
| ARBITRATOR: | Mr P Moloney | |||||
| DATE OF ARBITRATOR’S DECISION: | 25 September 2009 | |||||
| DATE OF APPEAL DECISION: | 18 February 2010 | |||||
| DATE OF RECONSIDERATION DECISION: | 10 March 2010 | |||||
| SUBJECT MATTER OF DECISION: | Reconsideration; section 350(3) Workplace Injury Management and Workers Compensation Act 1998 | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Gerard Malouf & Partners | ||||
| Respondent: | Sparke Helmore | |||||
| ORDERS MADE ON APPEAL: | Having reconsidered the matter of Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15 under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998, the findings and orders made in that matter are confirmed and the respondent’s application for reconsideration is dismissed. | |||||
| No order as to costs. | ||||||
INTRODUCTION
The respondent employer (‘HPM’) seeks a reconsideration of a decision (‘the appeal decision’) delivered by Acting Deputy President Snell on 18 February 2010 (Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15). The ground of the reconsideration is that, in conducting his review, the Acting Deputy President took into account a report from Dr Pillemer dated 28 May 2008 that the Arbitrator had excluded from evidence at the arbitration.
BACKGROUND
Acting Deputy President Snell set out a succinct summary of the background to the appeal and I will not repeat that summary.
Ms Dizon claimed weekly compensation in the sum of $581.17 per week from 10 November 2008 to date and continuing, hospital and medical expenses, and lump sum compensation in respect of 18 per cent whole person impairment and compensation for pain and suffering as a result of injury to her neck and arms due to performing repetitive duties with HPM from 1996 to August 2006.
The Arbitrator accepted evidence from Drs Oakeshott and Menogue and found that any incapacity suffered by Ms Dizon had not resulted from the nature and conditions of her employment and that she had recovered from the effects of any work injury.
On appeal, Acting Deputy President Snell revoked the Arbitrator’s decision and made an award in Ms Dizon’s favour in the sum of $116.24 per week from 10 November 2008 to date and continuing under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).
By letter dated 26 February 2010, HPM seeks a reconsideration of the Acting Deputy President’s decision.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, I am satisfied that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER RECONSIDERATION
The Acting Deputy President made the following orders:
“The decision of the Arbitrator dated 25 September 2009 is revoked, and the following decision is made in its place:
(i)Award for the Appellant Worker in a sum of $116.24 per week from 10 November 2008 to date and continuing pursuant to section 40 of the 1987 Act.
(ii)The Respondent Employer is to pay the Appellant Worker’s medical and related expenses pursuant to section 60 of the 1987 Act in respect of her neck and upper limbs.
(iii)The matter is to be remitted to the Registrar for referral to an approved medical specialist, for assessment of whole person impairment resulting from the injury suffered by the Appellant Worker, due to the nature and conditions of her employment from 1996 to August 2006 (deemed date of injury August 2006), in respect of her cervical spine, right upper limb, and left upper limb.
(iv)The approved medical specialist is to have access to the Application to Resolve a Dispute, the Reply, and the Applications to Admit Late Documents lodged 22 July 2009, 18 August 2009 and 27 August 2009, including the material attached to those documents.
(v)The Respondent Employer is to pay the Appellant Worker’s costs.
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.”
SUBMISSIONS
HPM makes only two points in its submissions, namely that the Acting Deputy President discussed “in some detail” the contents of Dr Pillemer’s report and that, “at least in part” he based his decision on that report when the Arbitrator had excluded it from evidence.
It is correct that the Arbitrator excluded Dr Pillemer’s report because reliance on it, together with the other reports attached to the employer’s Reply, would have breached clause 43 of the Workers Compensation Regulation 2003 (Arbitrator’s Reasons for Decision at [21(b)]).
However, apart from stating that the Acting Deputy President based his decision in part on the report and noting that he referred to it, HPM has made no submissions as to how the reference to the report has affected the outcome.
DISCUSSION AND FINDINGS
Whether, and, if so, to what extent, the Acting Deputy President relied on Dr Pillemer’s report is unclear. He set out a detailed summary of its contents. He added that he thought it “significant” that Dr Pillemer found organic signs, which the doctor regarded as indicative of some genuine pathology (appeal decision at [48]). He observed that Dr Oakeshott, whose opinion he rejected, had not commented on the presence or absence of the objective physical findings commented on by Dr Pillemer.
Though the Acting Deputy President did not accept Dr Pillemer’s view “at least as to causation” (appeal decision at [63]) it appears from the above analysis that he placed some weight on the doctor’s findings, if not on the doctor’s conclusions. This may have played some role in the Acting Deputy President’s assessment of the claim overall and for this reason, even though the Acting Deputy President does not appear to have relied on Dr Pillemer’s evidence in reaching his ultimate conclusions on injury, causation and incapacity, the matter must be reconsidered.
Ms Dizon started work with HPM as a process worker in 1995. She described the work as “extremely repetitive”. She sat at a desk with her neck flexed forward, using cutters, pliers, tweezers, a press machine, power hand screw and, on occasions, a machine to bend components or cut them. She worked from 7.30am until 3.30pm with a break of 10 minutes for morning tea and 30 minutes for lunch.
In 1998 she was testing products and had to press and hold buttons of testers while holding the cover down using her left hand and using her right hand to test. She also lifted trays of products for testing. In about 1999 she felt pain in her shoulders, arms and neck, more on the right side than the left. She reported the problem to her supervisor and was moved to another area of the factory where she did packaging and assembling. Her pain continued. She saw her general practitioner, Dr Lee, who advised her to use cream.
From December 1999 until October 2000, Ms Dizon worked full-time counting stock. This required her to lift her arms to remove stock off shelves and to return them. She also did computer work such as data entry.
From November 2000 until August 2006, Ms Dizon worked part-time counting stock and doing process work and store work. The store job required her to lift components off shelves. After 1999 her pain increased. She used Voltaren and took pain medication for the pain, which continued to increase.
On 7 June 2005, Ms Dizon saw Dr Regozo, general practitioner, who certified her fit for light duties for six hours per day five days per week because of “repetitive strain injury to right arm/right shoulder with cervicobrachial pain and lateral epicondylitis”. She completed a claim form on 10 June 2005 in which she said she had a problem around six years ago but it got worse and she had more pain.
Ms Dizon saw Dr Briggs, orthopaedic surgeon, on 11 August 2005 and he injected her right shoulder twice, though without any relief of her symptoms. She was made redundant in late 2006 because she could not return to her normal duties. She was referred to Dr Adler, a pain management consultant, who gave her nerve blocks in both shoulders but her pain continued. She also had physiotherapy, which only helped with her neck but not with her arm and shoulder.
She has continued to experience difficulty using her arms because any strenuous activity will cause pain. She is unable to do her housework and relies on her mother and her husband to do it for her. She has difficulty dressing and undressing. Her arms feel weak and she has heaviness and stiffness in her shoulders. At times her hands become inflamed and painful. She has continuing pain in her neck, upper arm, shoulder, elbow, forearm, hand and upper back. She feels anxious and depressed about her future.
Dr Regozo reported on 17 December 2008. He first saw Ms Dizon on 7 June 2005. He took a full history of Ms Dizon’s duties and symptoms. His initial impression was of repetitive strain injury to the “right shoulder, arm with cervicobrachial pain and lateral epicondylitis”, more symptomatic on the right. Later investigations noted chronic supraspinatus tendinitis with calcifications. She also developed left trapezius myalgia from overuse as the right shoulder/arm was restricted for a lengthy time. On examination, Ms Dizon had a markedly restricted range of movement of her neck and right shoulder abduction. He felt her work was a substantial contributing factor to her injury and that the condition was chronic and “recalcitrant” to treatment. He did not consider her fit for her pre-injury duties or for “any sustainable type of work” and advised minimal lifting duties, preferably clerical work.
A cervical CT scan on 29 August 2005 failed to reveal any disc protrusion or stenosis. An ultrasound on Ms Dizon’s right shoulder on 5 September 2005 revealed “calcific tendinosis”. An MRI scan of the right shoulder on 10 March 2006 demonstrated a “hypointense signal in the mid-distal supraspinatus tendon at the tuberosity in keeping with the previously demonstrated calcification, and with calcific tendinosis”. There was also some minor bursal surface fraying, suggestive of adjacent tendinosis. A left shoulder ultrasound on 28 June 2006 revealed a little bunching of the bursa in abduction and thickening around the AC joint.
Dr Medhat Guirgis, consultant orthopaedic surgeon, examined Ms Dizon for medico-legal purposes on 19 December 2007. He took a consistent history of Ms Dizon’s repetitive duties and that she developed symptoms in her neck, arms and shoulder within one year of starting in the testing area in 1998. Her symptoms increased, even while doing alternative duties between November 2000 and August 2006, and she took panadol to keep going because she did not want to apply for workers’ compensation. Ultimately, she was told that unless she resumed her full normal duties she would be sacked. Shortly after, her department closed and she was made redundant.
On examination, movements of the cervical spine were restricted to 25 per cent of normal and normal cervical lordosis was lost. Right shoulder movements were reduced but left shoulder movements were normal though with tenderness over the supraspinatus insertion into the top of the greater tuberosity of the humerus. There was tenderness and mildly painful crepitation over elbows. Dr Guirgis diagnosed a chronic musculo-ligamentous sprain of the cervical spine (which triggered and aggravated the effects of pre-existing osteospondylosis), chronic supraspinatus tendonitis/subacromial bursitis greater in the right shoulder, chronic external epicondylitis greater in the right elbow, and median neuropathy in the right carpal tunnel. He concluded that Ms Dizon’s “cumulative stress disorder” resulted from the dynamic and static overloading involved in her work. He thought the worker was unfit for activities that applied stress to the neck and arms, particularly repetitive, dynamic or sustained loading.
Dr Oakeshott examined Ms Dizon on 28 August 2008 and reported on the same day. He took a history that she had been referred to Dr Biggs, orthopaedic surgeon, and Dr Adler, pain management consultant. Dr Biggs injected her right shoulder on two occasions with no benefit. Dr Adler gave the worker injections into the back of both shoulders (suprascapular nerve blocks) without any benefit. Dr Oakeshott noted that Dr Biggs thought Ms Dizon had rotator cuff tendonitis and subacromial impingement of the right shoulder.
Dr Oakeshott thought that Ms Dizon presented as an intense and pain focused person who appeared to be reading from a “prepared script” when she related her history. He thought her symptoms were non-anatomical in distribution. He observed significant “pain behaviours (symptom magnification)” at the examination and significant discrepancies in the range of movement of both shoulders during clinical examination compared to when she was not being examined. He concluded that he could not identify any objective clinical evidence of any “significant” injury or pathology that could be attributed to Ms Dizon’s work at HPM. He accepted that she had some impingement syndrome in both shoulders, which could have caused the calcific tendonitis in the right shoulder, but that was constitutional. He could not confirm the diagnosis of calcific tendonitis (or any other condition) on objective clinical examination. Her symptoms arose from factors (not identified) other than her work with HPM.
HPM also relied on an Earning Capacity Assessment report prepared by Dr Menogue, general practitioner, and Kieran Fraser, psychologist, dated 31 July 2009. Dr Menogue accepted that there was a “straightforward temporal relationship between” Ms Dizon’s neck, right shoulder and arm symptoms and her work duties ultimately reported on 7 June 2005. Examination revealed significant inconsistency with the severe restriction in shoulder movements during form assessment not seen while Ms Dizon sat casually in the consulting room. Dr Menogue found the examination to be “unconvincing” and that Ms Dizon was “uneconomic with the truth in all aspects of the history”. Though Dr Menogue concluded that there was little functional impairment due to an organic basis, he felt that Ms Dizon should avoid working with her arms out in front of her or overhead. It was likely that any repeated work requiring her arms to be out in front or overhead would result in further neck and right shoulder pain. She was fit for work for eight hours per day five days per week with a lifting restriction of five kilograms and avoiding work with her arms in front or overhead.
Taking into account the above evidence, it is clear that Ms Dizon exaggerated her symptoms to Dr Oakeshott and Dr Menogue. However, that does not mean that the worker suffered no injury or has no symptoms. Ms Dizon reported her symptoms to her supervisor in 2005 and remained at work with increasing symptoms until the employer retrenched her in 2006. Such conduct is not consistent with a worker seeking to manufacture a claim or present with symptoms that are not genuine. The insurer accepted the claim and paid voluntary compensation until November 2008. Radiological investigations confirmed the presence of “calcific tendinosis” and her symptoms were sufficiently severe that she received several injections, though they did not relieve her complaints.
The balance of the medical evidence confirms the presence of a genuine organic problem related to her employment. No other cause is suggested. The exception is Dr Oakeshott who, in my view, failed to give any or any appropriate weight to the objective changes demonstrated in the radiological investigations or to the nature of Ms Dizon’s duties. That he found Ms Dizon’s range of movement to be “suboptimal” does not exclude the existence of symptoms, especially in circumstances where the radiological evidence is positive, as it is in the present case. There was no basis for Dr Oakeshott’s conclusion that Ms Dizon’s “calcific tendonitis” was a constitutional condition. I accept Ms Dizon’s evidence that her symptoms commenced at work and that they deteriorated as she continued at work performing repetitive duties until she was retrenched.
Having conducted a detailed reconsideration of the medical issues, without regard to Dr Pillemer’s evidence, I prefer and accept the evidence of Drs Guirgis and Regozo, in part corroborated by Dr Menogue, on the issues of injury and causation.
On the issue of whether Ms Dizon’s ongoing symptoms resulted from the injury, the Acting Deputy President stated that he did not accept Dr Pillemer’s opinion on causation. Therefore, Dr Pillemer’s evidence was of no consequence on this issue. HPM has advanced no basis on which this part of the Acting Deputy President’s determination should be reconsidered. Were it necessary for me to do so, I would have no hesitation in reaching the same conclusion as that reached by the Acting Deputy President, namely that the preponderance of the medical evidence (Drs Regozo, Guirgis and Menogue) favours the conclusion that Ms Dizon’s ongoing complaints resulted from the work injury and have become chronic (appeal decision at [65]).
The Acting Deputy President noted that the assessment of incapacity required “some care”, given the level of exaggeration Ms Dizon demonstrated when examined by Drs Pillemer, Oakeshott and Menogue. Though he recorded that Dr Pillemer considered the worker “unfit for any employment”, that was because of her “underlying condition” and a “significant functional component” (appeal decision at [80]). The Acting Deputy President correctly observed that Ms Dizon had not relied on the functional component. After referring to other evidence, he preferred Dr Menogue’s evidence and found Ms Dizon to be partially incapacitated. He clearly placed no weight on Dr Pillemer’s evidence on this issue.
In assessing Ms Dizon’s entitlement to weekly compensation, the Acting Deputy President made no reference to Dr Pillemer’s evidence but relied heavily on the worker’s evidence and the respondent’s Earning Capacity Assessment report. His assessment was unaffected by Dr Pillemer’s evidence and there is no basis on reconsideration for it to be varied.
CONCLUSION
Having reconsidered this matter it is clear that, whilst the Acting Deputy President referred to Dr Pillemer’s report, he did not rely on it in reaching his ultimate conclusions. Without recourse to Dr Pillemer’s report, I have reached the same conclusion as that reached by the Acting Deputy President.
DECISION
Having reconsidered the matter of Dizon v HPM Industries Pty Limited [2010] NSWWCCPD 15 under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998, the findings and orders made in that matter are confirmed and the respondent’s application for reconsideration is dismissed.
COSTS
No order as to costs.
Bill Roche
Deputy President
10 March 2010
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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