Durrant v State of New South Wales (Hunter New England Local Health District)
[2021] NSWPIC 516
•9 December 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Durrant v State of New South Wales (Hunter New England Local Health District) [2021] NSWPIC 516 |
| APPLICANT: | Deborah Gaye Durrant |
| RESPONDENT: | State of New South Wales (Hunter New England Local Health District) |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 9 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation; both cervical spine and right shoulder injuries admitted, and the subject of referral for medical assessment; alleged left shoulder consequential condition is disputed; Held - on balance, the left shoulder condition arose as a result of the accepted right shoulder injury; it is not necessary for the applicant to demonstrate pathological change in establishing a consequential condition; Moon v Conmah Pty Ltd discussed; the preponderance of the medical evidence, including that of the surgeon who has treated the applicant over many years, supports the finding of a causal link between the applicant’s right shoulder injury in 2006, the surgery which she had for that injury in 2018 and the onset of left shoulder symptoms in 2019 after a history of overuse of the left shoulder/ compensation; the right shoulder and cervical spine injuries together with the left shoulder consequential condition are remitted to the President for referral to a Medical Assessor on terms as set out in the Certificate of Determination. |
| FINDINGS AND ORDERS MADE: | 1. The applicant suffered injury to her cervical spine and right upper extremity (shoulder) in the course of her employment with the respondent on 2 June 2006. 2. As a result of the injury referred to paragraph 1 above, the applicant suffered a consequential condition to her left upper extremity (shoulder). 3. The matter is remitted to the President for a referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Date of injury: 2 June 2006 Body systems referred: right upper extremity (shoulder), cervical spine, left upper extremity (shoulder) (consequential condition) Method of assessment: whole person impairment 4. The documents to be referred to the Medical Assessor to assist with the determination are to include the following: (a) the Certificate of Determination and Statement of Reasons; (b) Application to Resolve a Dispute and attachments; (c) Reply and attachments; (d) applicant’s Application to Admit Late Documents dated 28 October 2021 and attachments; (e) applicant’s Application to Admit Late Documents dated 10 November 2021 and attachments, and (f) respondent’s Application to Admit Late Documents dated 26 November 2021 and attachments. |
STATEMENT OF REASONS
BACKGROUND
On 2 June 2006, Ms Deborah Durrant (the applicant) was working in the course of her employment with Hunter New England Area Health Service (the respondent) as a laundry assistant. She was pulling a king-sized sheet out of a laundry bin and as she did so, she felt the sensation of pain in her right shoulder and right side of her neck.
The respondent does not dispute the applicant suffered injury to her cervical spine and right shoulder. It is agreed that those body systems will be referred to a Medical Assessor for determination of the applicant’s whole person impairment.
The applicant also alleges she suffered a consequential condition to the left shoulder. That body system is in issue and the respondent denies liability for that condition.
The applicant alleges she developed that consequential condition as a result of overuse/over reliance on her left shoulder, in particular since she underwent cervical fusion surgery in or about August 2018.
ISSUES FOR DETERMINATION
The only issue for determination is whether the applicant suffered a consequential injury to her left shoulder as a result of the accepted injury.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 6 December 2021. On that occasion, the applicant was represented by Mr S Hickey of counsel instructed by Mr M Grady, solicitor. The respondent was represented by Mr F Doak of counsel, instructed by Ms E Angwin, solicitor. Efforts were made to conciliate the dispute, however, the parties were unable to reach an agreement suitable to them.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents;
(b) Reply and attached documents;
(c) applicant’s Application to Admit Late Documents (AALD) dated 28 October 2021 and attached documents;
(d) applicant’s AALD dated 10 November 2021 and attached documents, and
(e) respondent’s AALD dated 26 November 2021.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered a consequential condition to her left shoulder
The parties agree the applicant bears the onus of proving that her left shoulder condition arose as a result of the agreed injuries. It is important at the outset to establish the relevant test for determining the presence of a consequential condition. This is particularly so in matters such as this where there is a significant timeframe between the original injury and the alleged consequential condition.
The parties agree that there is no requirement on the part of the applicant to establish the presence of an injury as that term is defined within section 4 of the Workers Compensation Act 1987 (the 1987 Act). Rather, as Deputy President Roche said in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 83 (Kumar):
“35. By asking if Mr Kumar has suffered a section 4 injury to his right shoulder, the Arbitrator erred in his approach and has asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has considered on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a section 4 injury to his right shoulder”.
11.Both parties pointed out the relevant test for causation for the presence of a consequential condition was set out by Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). As His Honour noted in that case, it has long been recognized that causation is not always direct and immediate. What is important is if the chain is unbroken and provides the relevant causative explanation of the incapacity from which the applicant allegedly suffers. If so, it will then be open to the Commission to make a finding in the applicant’s favour.
12.In Kooragang, His Honour noted that what was required in order to determine questions of causation is a common sense evaluation of the causal chain. That is, the mere passage of time between an incident and subsequent incapacity is not determinative of the entitlement compensation. In each case, the question will be whether the consequential condition “results from” the accepted injury.
13.Such a question is one of fact to be determined on the basis of the evidence, including but not limited to expert opinion. As Mr Doak noted, there have been a number of presidential decisions dealing with the nature of claims with respect to consequential conditions. The principles are set out in, amongst other decisions, Moon v ConmahPty Ltd [2009] NSWWCCPD 134 (Moon). In that decision, there was a compensable injury to the right shoulder which, as with this matter, allegedly resulted in a consequential condition to the left shoulder. Roche DP set out at [44]–[46] what is required to establish a consequential condition. The Deputy President said:
“44. It is not disputed that the restriction [to Mr Moon’s right arm and shoulder] has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45. It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah but he asked the wrong question.
46. The test of causation in a lump sum claim is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the work injury (see Sidiropoulos v Able Placements Pty Ltd) [1998] NSWCC 7; Rail Services AustraliavDimovski & Anor [2004] NSWCA 267).”
14.In this matter for the following reasons I am of view that the applicant has established on the balance of probability she has suffered a consequential condition to her left shoulder as a result of the accepted cervical spine and right shoulder injuries.
15.The respondent relied on the effluxion of time between the 2006 injury and the onset of left shoulder symptoms in or about 2019. It is, however, in my view, noteworthy that the applicant underwent surgery for her cervical spine injury in 2018, and it was after this surgery that her left shoulder symptoms developed.
16.Having said that, correlation is not causation, and what is required is an examination of the evidence.
17.Mr Doak relied on the absence of complaint concerning the applicant’s left shoulder in her initial statements, respectively dated 9 February 2017, 25 January 2018, and 14 September 2021. In particular, Mr Doak noted that the last of the statements was provided only a very short time before the commencement of these proceedings and it was only after the proceedings commenced that the applicant provided a further statement dated 27 October 2021 where she set out the issues with her left shoulder.
18.That submission by Mr Doak would, in my opinion, bear more weight had the applicant not being consistently complaining of left shoulder problems to her treating medical practitioners since 2019.
19.Mr Doak also submitted the last of the applicant’s statements noted that following her injury in 2006, she began to rely on her left arm and performed a number of duties exclusively with that arm. Mr Doak submitted that if this is the case, the applicant cannot rely on her reliance on the left arm post-surgery as the cause of the consequential condition.
20.I do not, for the purposes of these reasons, propose to quote at length the applicant’s statement. Suffice to say, she indicated she was unable to use her right arm and did everything with her left arm below and above shoulder height in an effort to protect her right shoulder and neck.
The difficulty with Mr Doak’s submission is, in my opinion, the treating medical evidence clearly establishes a consistent course of treatment by the applicant’s treating surgeon Dr Perko in relation to her left shoulder since November 2019. In his report dated 3 November 2021, Dr Perko noted:
“Mrs Durrant first reported left shoulder pain in a consultation on 13 November 2019. She described three or four months of symptoms with particular difficulty reaching and complained of sleep disturbance, no longer being able to lie on her left side…
I consider the features to be those of a subacromial bursitis and requested that she have an ultrasound to confirm the diagnosis and would expect that some subacromial steroid injection would offer some relief.
The ultrasound was performed on 13 January 2020 and reported slight subacromial bursitis and an ultrasound-guided injection was administered on 14 January 2020.”
22.Dr Perko then went on to note the applicant had further injections against the background of little improvement to her left shoulder. He noted he had continued to review the applicant at regular intervals and that the last review was on 13 September 2021, at which time she continued to have left shoulder pain and the combination of restricted active and passive movement.
23.Dr Perko agreed with the views of Dr Hopcroft, Independent Medical Examiner (IME) for the applicant who stated in his report dated 26 October 2021 that the applicant’s left shoulder condition was a consequential one arising from the cervical spine and right shoulder injury. Dr Perko considered the applicant’s employment had been a substantial contributing factor to the development of the left shoulder symptoms. Both counsel agreed that this was not a necessary requirement for the finding of a consequential condition, which is a lower threshold than that for an injury pursuant to section 4 of the 1987 Act.
24.Mr Doak submitted the applicant had not discharged her onus of proof and that the opinion of Dr Bentivoglio, the respondent's IME should be preferred. In his latest report dated 26 November 2021, Dr Bentivoglio carried out a file review report and noted:
“At the time I saw this lady last, she felt there was a considerable chance that the symptoms she was experiencing in her left shoulder were coming from her neck. I felt that was a reasonable assessment, particularly noting that an ultrasound done of her left shoulder in January 2020 showed that she only had a small amount of subacromial bursitis and no other rotator cuff pathology.
The treating specialist felt that her symptoms maybe in keeping with early onset of capsulitis. She has not had any investigations to verify this.
In any case, even if she did have capsulitis, I do not believe that it is possible for her to develop this from her workplace injury in 2006 when she has not worked since that time. She has been grossly restricted in what she can do with all her other pathology and it is not reasonable to suggest that any pathology present in her left shoulder relates to her employment or to her significant ongoing neck and right shoulder complaints starting from 2006.
If indeed she was going to have problems with her left shoulder, it should have occurred many years ago.”
25.It should be noted that Dr Bentivoglio makes reference to pathological change in assessing whether there is a consequential condition present. That is, strictly speaking, an unnecessary enquiry to undertake. It is the experience of the patient and the sensation of impaired function and/or pain which gives rise to a consequential condition such as that complained of in this matter, rather than the changing of pathology itself.
26.On balance, I am not inclined to prefer the opinion of Dr Bentivoglio. Reference is made in Dr Bentivoglio’s earlier reports of the applicant suffering left shoulder symptoms for the first time when she picked up her cat. I am unable to see any reference to that event in the clinical records or in any other report in that matter.
27.In my view, Dr Bentivoglio’s view stands alone and is not preferred compared with that of the treating surgeon Dr Perko, who has had the benefit of treating the applicant’s shoulder conditions over the course of many years. His views accord broadly with those of Dr Hopcroft, and as a treating surgeon, in my view Dr Perko's opinion carriies significant weight. He has had the benefit of examining the applicant on many occasions and he is uniquely placed in this matter to provide an opinion in relation to causation regarding the alleged consequential condition.
28.On balance, I accept the views of Dr Perko and Dr Hopcroft over those of Dr Bentivoglio, and accordingly there will be a finding that the applicant suffered a left shoulder consequential condition as a result of the accepted injury.
SUMMARY
For these reasons, the Commission will make the findings and orders as set out on page one of the Certificate for Determination.
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