Dodd v Coles Supermarkets Australia Pty Ltd
[2024] NSWPIC 585
•18 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Dodd v Coles Supermarkets Australia Pty Ltd [2024] NSWPIC 585 |
| APPLICANT: | Gail Louise Dodd |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| MEMBER: | Parnel McAdam |
| DATE OF DECISION: | 18 October 2024 |
CATCHWORDS: | WORKERS COMPENSATION - Accepted left shoulder and wrist injuries; whether applicant suffered a left elbow injury or consequential condition; whether applicant suffered a consequential condition in cervical spine and right shoulder; lack of causation explanation in applicant’s medicolegal report; sufficient medical evidence contained in clinical material supported by applicant’s statement to make a finding of consequential condition in right shoulder, insufficient material to support left elbow or cervical spine; Held – award for the respondent for left elbow and cervical spine; applicant suffered consequential condition in right shoulder; matter referred for assessment of whole person impairment. |
| DETERMINATIONS MADE: | The Commission determines: 1. Award for the respondent for injury to the left elbow. 2. Award for the respondent for consequential condition in the left elbow and cervical spine. 3. The applicant suffered a consequential condition in the right shoulder as a result of injury to the left shoulder and left wrist suffered on 1 September 2017. 4. The matter is remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: Date of injury: 1 September 2017. Body systems/parts: left upper extremity (shoulder and wrist), and right upper extremity (shoulder). Method of assessment: whole person impairment. 5. The documents to be referred to the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents; (c) an Application to Admit Late Documents dated 7 August 2024, filed by the respondent, and (d) an Application to Admit Late Documents dated 12 September 2024, filed by the respondent. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Ms Dodd was employed by the respondent (Coles) as a casual employee in the deli area. The work was repetitive, involving constant use of hands and arms. She suffered a personal injury when she was attempting to fold a plastic crate. She felt a jarring sensation down the left arm. That injury is not disputed.
Ms Dodd brings a claim for lump sum compensation for the injury suffered as well as a number of consequential conditions. There is no dispute that the left shoulder and wrist will go to a Medical Assessor for assessment. In dispute are the consequential conditions, namely to the cervical spine, left elbow, and right shoulder.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffered an injury to her left elbow on 1 September 2017, and
(b) whether the applicant suffers from consequential conditions in her left elbow, cervical spine, and right shoulder.
PROCEDURE BEFORE THE PERSONAL INJURY 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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents;
(b) Reply and attached documents;
(c) an Application to Admit Late Documents dated 7 August 2024, filed by the respondent, and
(d) an Application to Admit Late Documents dated 12 September 2024, also filed by the respondent.
I do not intend to set out in detail the evidence the parties rely upon. I will discuss some of that critical evidence, in brief, below as well as in my findings and reasons.
Report of Dr Bodel
The applicant’s claim is based on the report of Dr Bodel dated 31 August 2022.
I would note, at the outset, that Dr Bodel’s opinion, particularly in relation to causation of the consequential injuries, is brief at best. His summary of injuries includes reference only to the left shoulder and left wrist and hand. No reference to the left elbow, cervical spine, or right shoulder is made. The current complaints section refers to pain in the neck, “left shoulder worse than the right” as well as the left elbow and wrist.
Dr Bodel’s diagnosis concerns the left wrist and left shoulder only. He goes on to assess the cervical spine, left shoulder, elbow and wrist, and right shoulder in his assessment of impairment.
There is no further report from Dr Bodel.
Reports of Dr Kleinman
The respondent relies on the opinion of Dr Kleinman, who provides two reports. The first is dated 13 October 2020 (that is, before the claim for lump sum compensation was made). This report focuses mainly on the left shoulder, although notes that there was a certification of being fit to return to pre-injury duties as a result of her right shoulder condition.
In the report dated 7 June 2024, Dr Kleinman sets out Ms Dodd’s medical history prior to the work injury claimed and the consequential conditions that arose as a result of that injury. He provides:
“She has a previous history of right shoulder problems for which she came to surgery to her right shoulder in 2014 to repair the rotator cuff of her right shoulder. Following her return to work, she sustained a further injury to her right shoulder in August 2016.”
In relation to present complaints it is recorded:
“She gets recurrent pain in her right shoulder and elbow which she attributes to not being able to use her left arm properly. She is right handed.”
Dr Kleinman found a significant degree of non-organic pain behaviours and embellishment of symptoms. He notes that the history provided is consistent with the clinical notes, that given to Dr Kennedy, and Dr Myers. When asked specifically about the consequential conditions claimed, he opines:
“The right shoulder injury occurred as a result of two specific incidents at work and is not consequential to the injury to her left shoulder.
She made no complaints about her neck or left elbow on consultation today.”
The applicant’s statements
Ms Dodd provides two statements. The first is dated 27 January 2022. It provides a history of injury to the left shoulder consistent with that recorded elsewhere. An extensive treatment history is set out.
In relation to the right arm, it is recorded:
“I found preinjury duties continually aggravated both my wrist and shoulder. Eventually I noticed I was tending to avoid my left arm, because of continual pain and stiffness, and was using my right arm a lot more both for work and activities of daily living. My right arm was doing the work of both arms. Eventually I noticed increasing pain in my right shoulder (which was previously injured in an accident at work with Coles in 2014).”
The previous injury to the right shoulder is set out towards the end of the statement. It required surgery in about November 2014, and resulted in Ms Dodd returning to full pre-injury duties by about 18 months after the injury.
The applicant also suggests that the insurer (i.e. Coles as a self-insurer) made her treating doctor record the right shoulder symptoms as being related to the 2014 incident.
The further statement dated 17 July 2024 sets out similar issues to the earlier statement. The statement refers to attendance on Aaron Bayley, who “noted that my condition had prohibited me from using my left arm entirely, and instead placed significant compensation on my right arm and shoulder”. Similar comments were made with reference to Dr Brindley, who “outlined that all previous injuries within my right shoulder had been fully recovered from prior treatment”, and that pain had begun developing due to overuse of the arm and shoulder.
After arthroscopy to the left shoulder, a frozen shoulder developed, requiring the arm to be placed in a sling for around 12 weeks. This made Ms Dodd reliant on her right arm to undertake all activities. Ms Dodd’s response to the s 78 notice includes the following:
“Throughout the course of my treatment, it has been distinctly noted that I had ongoing pain within my right shoulder within my right shoulder as a result of overuse and compensation. This is confirmed by the opinion of Dr Stephen Brindley as noted in paragraph 27 of this statement, whereby he noted that I presented pain within my right shoulder as a result of my inability to use my left arm, subsequently heavily relying on my right arm. Moreover, as noted in paragraph 31 of this statement, following my left shoulder surgery, I became heavily reliant on my right arm to bear weight and to carry out my daily activities. As such I confirm that my pain and injury within my right shoulder follows as consequential to my sustained left shoulder injury sustained at work.”
Clinical notes and other records
There are various clinical records throughout the evidence, including attached to the Application and an Application to Admit Late Documents. I have considered the relevant parts of that material and will refer to it where necessary throughout my findings and reasons, below.
SUBMISSIONS
Both parties provided oral submissions during the hearing which were recorded. I do not intend to repeat the submissions in full, but are summarised here.
Applicant’s submissions
The applicant commenced submissions by acknowledging that whilst there was some evidence of a consequential injury to the cervical spine and left elbow, those points did not need to be labored. Reference was made to the second statement, that explains the pain in the left elbow is coming from the wrist. There was an earlier CT scan that predates the injury – the radiology is consistent with complaints of pain radiating into the cervical spine and reports of developing consequential pain in her neck.
More importantly, in terms of the consequential shoulder, reference was made to the reports of Dr Myers and the clinical notes of Dr Chong. Those notes show an accepted injury to the right shoulder that predates the present claim, that had resolved by November 2016. The applicant returned to work carrying out heavy duties. Because of the incapacity and impairment of her left arm, she had to carry out more activities using her right arm. As a commonsense causation principle consistent with Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, there should be a finding of consequential injury.
The applicant’s case finds some support in the opinion of Dr Kleinman. If the applicant’s evidence is accepted that she recovered from her 2014 injury, albeit with some remaining vulnerability, then it becomes symptomatic again after her return to work following the injury to her left shoulder. That is how the causal chain goes.
The respondent’s submissions
The respondent notes that the medical evidence should be reviewed on its own merits. It was also noted that there was evidence referred to in the applicant’s statements that was not in the material before me, including reference to Mr Bayley.
The respondent agrees that the applicant was carrying an impairment as at the date of injury. That injury was treated and the applicant moved on to preinjury duties in October 2015 – there was not really a recovery of injury, and in any event there was a further injury on
27 August 2016. The applicant returned to preinjury duties but there was not a resolution of duties, which supports Dr Kleinman’s conclusion. There isn’t a specific opinion from anyone that take a correct history of those two injuries, then provides a considered opinion of causation based on overuse of the right shoulder.The respondent then raised a number of issues with the report of Dr Bodel, pointing out that he did not consider any radiology of the right shoulder or neck, he provides no diagnosis in respect of the right shoulder, no explanation of what mechanism or how it occurred, nothing explaining how the consequential condition happened. He then leaps to an assessment of the neck and right shoulder.
Dr Kleinman, in his reports, provides extensive detail. There were no findings on examination in the neck or left elbow. It was submitted that if the injuries were significant they would have been investigated, particularly in light of the pre-existing shoulder injuries.
The respondent submits that to the extent that there is any reference to support the applicant from the treating evidence, there is no comprehensive treating medical report that notes the pre-existing right shoulder condition, that then goes on to provide a considered opinion on causation. For those reasons I would give Dr Kleinman’s opinion more weight than the treating opinions and Dr Bodel’s opinion. Where there is reference to pathology, where there is reference to issues in the background – this is not a considered opinion.
There should be an award for the respondent in respect of the consequential conditions claimed, and any alleged injury to the left shoulder.
FINDINGS AND REASONS
There is agreement in this case that Ms Dodd suffered an injury to her left shoulder and wrist. Regardless of the outcome of this determination, those body parts will be referred to a Medical Assessor for assessment of impairment.
The medicolegal evidence in this case is not particularly supportive of the applicant’s contention. Dr Bodel assesses a series of body parts, including those in dispute in the present proceedings, without explaining how they are connected to the accepted work injury. This assessment of whole person impairment approaches a bare ipse dixit. The consideration of whether a worker has suffered an injury or a consequential condition of course depends on more than medicolegal opinion, but that evidence is foundational and generally will provide critical support for a worker’s case.
Likewise, the description of injury in the Application is similarly unclear:
“The Applicant was breaking down collapsible crates, which required her to apply force with her left hand. As she was doing so, she pushed too hard on a crate and her left arm smashed through the crate. As a result, she sustained an injury to her left shoulder, left wrist and left hand.”
No reference is made to the consequential conditions that are subject of this dispute. It is noted that the applicant withdrew any reliance on an injury to the left hand. The permanent impairment claim, as set out in the Application, does make reference to the consequential conditions, being the right upper extremity and cervical spine. There is no explanation in form as to how those injuries have arisen as a result of the accepted work injuries.
The Commission, of course, is not a court of strict pleadings and should look to substance over form. The most clear presentation of the substance of the applicant’s claim comes from her statements, which explains the mechanism whereby she alleges her right shoulder injury (in particular) arises. The statement contains reference to the development of pain in the neck, but not really an explanation of what was causing the pain.
As there are multiple issues that must be determined, including a pleading of injury to the left elbow (as opposed to a consequential condition), I will deal with each separately.
Injury to the left elbow
The applicant’s claim for lump sum compensation includes the left elbow, based on the assessment of Dr Bodel who found 4% upper extremity impairment for that part of the arm. Based on the direction issued by another Member of the Commission on 15 August 2024, and the way the case was presented during submissions, it appears this is said to be either as an injury to the left elbow that occurred on 1 September 2017, or as a consequence of the accepted injury to the shoulder and wrist on that date. This is also consistent with the dispute notice issue by the respondent, that denied liability for injury.
The applicant’s first statement describes the injury as “a jarring sensation down my left arm, from wrist to shoulder”. This inferentially includes the elbow. The applicant’s second injury states that she “subsequently developed injury within my left elbow…”. In submissions, the applicant referred to paragraph 29 of her statement, which discusses her attendance on Dr Myers. In relation to the left elbow, it was stated:
“He further outlined that I had ongoing clicking and restriction within my wrist to which I had ongoing restriction within my left wrist. Subsequently, any pressure placed on my left arm would fall on my elbow. My pain had further radiated upwards into my left elbow, whereby it would become swollen, tender and severely painful.”
This was said to be how “the left elbow is in”.
The clinical notes do not support a finding that the applicant injured her left elbow in the incident on 1 September 2017. The record of 31 January 2018, recorded by Dr Chong, describes a “complicated workcover case”. The doctor states “hurt left wrist & possibly shoulder”.
Other than the applicant’s statement, there is no explanation of the connection between the incident and her restriction in the left elbow as found by Dr Bodel. There is no contemporaneous record of any complaint in the left elbow at or around the time of the injury. Whilst the whole arm may have been “jarred” by the mechanism whereby Ms Dodd attempted to collapse the box, there is no reference to that being causative of any sudden, identifiable pathological change in her elbow.
The applicant has the onus to prove her case on the balance of probabilities. In the present circumstances, she has failed to do so. Accordingly, I am not satisfied that Ms Dodd suffered an injury to her left elbow in the incident on 1 September 2017.
Consequential condition in the left elbow
The alternative construction presented in the applicant’s statement is that she “subsequently developed injury within my left elbow”. This can only be constructed to be as a consequential condition arising out of the accepted injuries to the left shoulder and wrist. The applicant sets out what she was told by Dr Myers at paragraph 29 of her second statement:
“As such, on 12 August 2020, I underwent an arthroscopy on left wrist observed by Dr Andrew Myers for management of TFCC injury. Following this surgery, I received minimal relief of pain and symptoms. I reconsulted with Dr Myers whereby he outlined that my pain levels had not decreased, still present discomfort on the ulnar side of wrist. He noted that if my pain does not settle down, I will require a shortened osteotomy, within the future. He further outlined that I had ongoing clicking and restriction within my wrist to which I had ongoing restriction within my left wrist. Subsequently, any pressure placed on my left arm would fall on my elbow. My pain had further radiated upwards into my left elbow, whereby it would become swollen, tender and severely painful.”
It is not clear if this is repeated in any report. I have been unable to find such an explanation. The applicant’s submissions, which focussed largely on the right shoulder, did not refer to such a report. The report of 22 October 2022 does refer to clicking and the possibility of a shortening osteotomy, but does not refer to the pressure being placed on the elbow which would cause it to become swollen and tender. It may be that this was communicated to Ms Dodd but not recorded. I am unable to tell. But I am unable to accept the assertion made by Ms Dodd in her statement, absent some supporting medical evidence. That assertion goes beyond any commonsense chain and involves a medical question, which would be supported by the factual assertions made. Absent an answer to that medical question in the evidence provided, I find that I am unable to be satisfied, on the balance of probabilities, that Ms Dodd suffered a consequential condition in her left elbow as a result of the accepted injuries to her left shoulder and wrist.
Consequential condition in the cervical spine
As with the above consequential condition in the left elbow, there is a paucity of evidence to connect the accepted injuries with any condition that has developed in the cervical spine.
Dr Bodel assessed Ms Dodd’s cervical spine as suffering from DRE category II impairment for 5% whole person impairment. As with the other assessments he made, there is no explanation as to causation of the cervical spine condition.
The applicant noted there is a CT scan that predated the date of injury, submitting that the radiology found in that scan is consistent with the developing reports of consequential pain in her neck. There is a report of a CT scan dated 31 July 2017 which shows a broad based posterior bulging of the disc at C7-T1, with no other abnormalities seen.
Ms Dodd’s statement refers to attendances on a physiotherapist, Dr Bayley, who “further noted active pain within my shoulder had subsequently developed pain within my upper back and into my neck”. She also goes on to describe consulting with Dr Larkin, and complaining of radiating pain within my upper back and neck, and that “Dr Larkin had noted that my ongoing pain in my left shoulder had led to radial pain and injury within my neck and upper back”.
The problem with accepting these parts of the applicant’s statements are they are not verified in any report of Dr Larkin. The clinical notes of Dr Larkin are attached to the Application to Admit Late Documents, but the applicant did not take me to any specific record during submissions. I have been unable to find any relevant references, particularly any that explain that the accepted injury has caused a consequential condition in the neck. Dr Bayley’s records are not in evidence and there is likewise no report from him.
I am unable to accept, on the balance of probabilities, that Ms Dodd has suffered a consequential condition in her neck. There is no explanation as to how that might have occurred and an absence of reliable medical evidence in support of that conclusion, outside of the report of Dr Bodel, who assesses the neck without explanation as to causation.
Accordingly, I will make an award for the respondent for any consequential condition in the neck.
Consequential condition in the right shoulder
The only remaining issue is the applicant’s right shoulder. Again, this was assessed by Dr Bodel without real explanation as to why. I accept that this affects the prospects of the applicant being successful in her claim. She bears the onus of proof to show that she has suffered a consequential condition. It is not fatal, however, and I must consider the evidence as a whole before reaching a conclusion on the claim before me.
The right shoulder condition is more complicated medically than the other body parts that I have dealt with above. There are previous injuries that were accepted to have occurred. Dr Kleinman’s opinion, on which the respondent relies, is that the right shoulder injury occurred as a result of two specific incidents at work and not consequential on the left shoulder injury. Those incidents occurred, according to Dr Kleinman in 2014 and 2016.
The first injury is addressed by the applicant in her first statement. She explains that she had surgery for that injury under the care of Dr Kennedy in November 2014, which was covered by Coles. She had about six weeks off and the injury resolved about 18 months after. This aspect of the applicant’s statement is supported by a claim closure notification letter, issued by Coles, dated 12 November 2015. It refers to the return to pre-injury duties for a date of injury of 21 June 2014. The claim was closed on 26 November 2015.
There are clinical records attached to the Application that concern this previous injury. Consistent with the closure letter is a clinical note dated 1 October 2015, which records “full ROM, no tenderness on palpitation” and “Gail is doing her pre-injury duties”.
The respondent submits that there was not really a recovery of injury, but that is contradicted by the evidence referred to above.
Also attached to the Reply is a certificate of capacity relating to a right shoulder strain that occurred on 27 August 2016. This is explained in a clinical note on 6 September 2016, whereby Ms Dodd was using a deli slicer at work, she needed to apply more pressure to ensure meat cut properly “then felt a pain to her shoulder”. On 21 November 2016, it is recorded “currently at work, practically doing most of her roles except limiting use of her right arm wherever possible”.
The applicant was certified fit for pre-injury duties on 14 June 2017. This predates the injury to the left shoulder by a number of months.
More importantly, it predates the onset of symptoms in the right shoulder that followed the left shoulder injury by a number of years. The first such record of complaint is found in a record of 11 February 2019, recorded by Dr Rizk. It provides:
“worsening right shoulder pain on back ground of complex past history of work-related bilateral shoulder injuries.
Past history noted.
Left frozen shoulder post rotator cuff repair and complex regional pain syndrome. Was overcompensating using the right shoulder and have to overreach in the Deli to get to the food and use her shoulder above chest to put it on the scales.”
On 5 April 2019, Dr Larkin records “R shoulder—burning”. On 26 July 2019, he records “Both shoulders have been aggravated by the demands of the new position” – the new position being a trial of work at the checkout.
The record of Dr Rizk is consistent with the opinion of Dr Myers. In a report dated 29 January 2019, he records:
“Unfortunately also for Gail because she has such profound ongoing left upper limb dysfunction she is now starting to see significant symptoms occurring on the right side because she was overusing to compensate. I told her to mention this to the shoulder Specialist when she seems him next month.”
The applicant’s statement refers to Dr Brindley explaining that the previous injuries within the right shoulder had fully recovered. I do not have any reports from Dr Brindley before me, nor any clinical notes. I drew this to the applicant’s attention during the hearing, who referred to some clinical notes of Dr Brindley in the produced material. Those records were not lodged in any Application to Admit Late Documents and were accordingly not placed before me. I cannot draw conclusions based on material that is not before me.
Ms Dodd goes on to explain that she became reliant on her right arm to weight bear following her left shoulder surgery. She was placed in a sling for around 12 weeks, requiring her to become severely reliant on her right shoulder and arm to undertake all activities.
Dr Kleinman’s opinion, on which the respondent relies, is that the “right shoulder injury occurred as a result of two specific incidents at work”. The problem with this opinion is that there is contradicting evidence that those two specific incidents had resolved prior to the left shoulder injury. I have referred to that evidence above and am satisfied that this is the case.
Having accepted that that is the case, I find that I am unable to accept the opinion of Dr Kleinman in relation to the right shoulder. There remains the medicolegal opinion of Dr Bodel. That opinion has no explanation as to causation. I have explained the difficulties with Dr Bodel’s opinion above.
However, the lack of clarity in Dr Bodel’s report is explained in the other medical evidence, and the applicant’s statement, which I have discussed above. I am satisfied that there is sufficient evidence to explain the consequential condition as claimed. The applicant had an accepted left shoulder injury, and was required to use her right shoulder more as a result, both at work and at home. This led to the development of pain in her shoulder, causing a consequential condition, that has been assessed by Dr Bodel for the purposes of whole person impairment. I am satisfied that this has occurred on the balance of probabilities.
Accordingly, the right shoulder will be referred for assessment of impairment, along with the left shoulder and left wrist.
SUMMARY
I am satisfied that the applicant suffered a consequential condition in her right shoulder.
I am not satisfied that the applicant suffered an injury or consequential condition in her left elbow, or a consequential condition in her cervical spine.
The applicant will be referred for an assessment of impairment of the left upper extremity (shoulder and wrist) and right upper extremity (shoulder) as a result of injury on 1 September 2017.
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