Eid v Edmen Workforce Staffing Services Pty Ltd
[2024] NSWPIC 647
•21 November 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Eid v Edmen Workforce Staffing Services Pty Ltd [2024] NSWPIC 647 |
| APPLICANT: | Chady Eid |
| RESPONDENT: | Edmen Workforce Staffing Services Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 21 November 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment for injury to right upper limb; injury or consequential condition to cervical spine; consequential condition to the left shoulder; scarring; Complex Regional Pain Syndrome (CRPS); respondent disputes injury or consequential condition to cervical spine, consequential condition to the left shoulder and CRPS; consideration of Moon v Conmah Pty Ltd on determination of consequential conditions; consideration of Elsworthy v Forgacs Engineering Pty Ltd as to whether the condition of CRPS can be the subject of referral to a Medical Assessor; Held – the worker did not sustain an injury to his cervical spine in the course of his employment with the respondent; the worker has suffered consequential conditions affecting his cervical spine and left shoulder as a result of injury to his right upper limb; the worker has signs and symptoms in the right upper limb which warrant a referral for assessment of CRPS pursuant to the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed. |
| DETERMINATIONS MADE: | The Commission determines: 1. An award for the respondent on the claim made by the applicant that he sustained an injury to his cervical spine on 9 August 2017. 2. The applicant has suffered a consequential condition affecting his cervical spine as a result of the injury he sustained to his right upper limb on 9 August 2017. 3. The applicant has suffered a consequential condition affecting his left shoulder as a result of the injury he sustained to his right upper limb on 9 August 2017. 4. The applicant has signs and symptoms in the right upper limb which warrant the referral to a Medical Assessor for the assessment of whole person impairment for the condition of Chronic Regional Pain Syndrome. The Commission orders: 5. This matter is remitted to the President for referral to a Medical Assessor as follows: Date of injury 9 August 2017 Body Parts Right upper extremity (shoulder, elbow) Cervical spine as a consequential condition Left upper extremity (shoulder) as a consequential condition Scarring (TEMSKI) Complex Regional Pain Syndrome (CRPS). 6. The following documents are to be forwarded to the Medical Assessor: (a) Application to Resolve a Dispute with attachments; (b) Reply with attachments, and (c) a copy of this decision. |
STATEMENT OF REASONS
BACKGROUND
Chady Eid, the applicant in these proceedings, makes a claim for a lump sum payment pursuant to s 66 of the Workers Compensation Act (the 1987 Act) for 56% whole person impairment (WPI) as a result of an injury he sustained in the course of his employment as a labourer with the respondent, Edmen Workforce Staffing Solutions Pty Ltd, on 9 August 2017.
The claim for 56% WPI is based on an assessment made by Dr Assem, rehabilitation specialist, in a report dated 23 February 2024, which is made up of 7% WPI for the cervical spine, 52% WPI for the right upper extremity (including impairment for Chronic Regional Pain Syndrome (CRPS)), 2% WPI for the left shoulder and 1% WPI scarring.
Mr Eid has undergone the following operations as a result of his injury:
(a) a right shoulder arthroscopy, decompression and cuff repair performed by Dr Jansen on 19 October 2017;
(b) a right ulnar nerve decompression performed by A/Prof Jaeger on 14 February 2019, and
(c) a right arthroscopic biceps tenodesis and subacromial decompression performed by A/Prof Haber on 5 April 2019.
The respondent concedes that Mr Eid sustained an injury to his right shoulder on 9 August 2017, and consents to a referral for assessment of the right shoulder, right elbow and scarring. However, the respondent disputes the claims made by Mr Eid that he sustained an injury to his cervical spine on 9 August 2017 or has a consequential condition affecting his cervical spine, that he has a consequential condition affecting his left shoulder, and that he has suffered the condition of CRPS.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his cervical spine on 9 August 2017 or whether the applicant has suffered a consequential condition affecting his cervical spine as a result of the injury on 9 August 2017;
(b) whether the applicant has suffered a consequential condition affecting his left shoulder as a result of the injury on 9 August 2017, and
(c) whether the applicant has suffered the condition of CRPS as a result of the injury on 9 August 2017 which would allow for an assessment of WPI to be undertaken by a Medical Assessor.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
This matter was listed for hearing on 13 November 2024. Mr Andrew Parker appeared for Mr Eid. Mr Gaitanis appeared for the respondent.
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.
A claim for a consequential condition affecting the back as a result of the injury on 9 August 2017 was discontinued.
The submissions of the parties at the hearing were recorded, and I do not propose to reiterate all of those submissions in these reasons. However, I will refer to the general thrust of those submissions in the course of this decision.
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 (ARD) and attached documents, and
(b) Reply and attached documents.
Oral evidence
There was no application to cross examine Mr Eid.
FINDINGS AND REASONS
Whether the applicant sustained an injury to his cervical spine on 9 August 2017
The applicant’s evidence
Mr Eid has provided statements dated 5 September 2019, 28 November 2023, and 11 March 2024.
In his statement dated 5 September 2019, Mr Eid states that on 9 August 2017 he was lifting a piece of scaffolding, which he estimates to have weighed about 10kg. He states that as he was putting this piece of scaffolding down on to a pallet, his right arm gave way and he “felt pain”. He states that he thought he had just pinched a nerve. Mr Eid states that when he woke the next morning he knew he had sustained a serious injury and saw his general practitioner, Dr Floro, at Warrawong Medical Centre. He states that he has undergone two operations on his right shoulder.
In his statement dated 28 November 2023, Mr Eid provides further details regarding the incident on 9 August 2017. He states that he felt immediate pain in his right arm and shoulder when his right arm gave way, and also recalls having pain in his neck. He states that he was definitely focusing on his right arm and shoulder.
There is an “Incident and Accident Report” form signed by Mr Eid on 14 August 2017 which only refers to pain in the shoulder. The right shoulder is ticked as a body part that has been injured, but the neck is not ticked (nor any other part of the body). A diagram of the human body only identifies the right shoulder as being injured.
The medical evidence
The clinical notes from Warrawong Medical Centre are in evidence. There is an entry made by Dr Floro on 10 August 2017 of: “strain – R shoulder lifting – Nurofen.” There are subsequent entries on 11 August, 14 August and 21 August 2017 which record a right shoulder injury. There is no reference in those entries to an injury to the neck.
The first Certificate of Capacity following the incident on 9 August 2017 which has been included in the available evidence is from Dr Floro and dated 21 August 2017, and only refers to an injury to the right shoulder.
There are referrals from Dr Floro to Dr Haber dated 14 August 2017, and to Dr Jansen dated 24 August 2017, which refer to a right shoulder problem only.
Dr Jansen initially sees Mr Eid on 30 August 2017 and records the development of pain in the right shoulder when putting a piece of scaffold onto a pallet. Dr Jansen also writes: “His neck range of motion is free without shoulder pain.” Dr Jansen diagnoses a rotator cuff tear with impingement.
Dr Jansen performs surgery on Mr Eid’s right shoulder on 19 October 2017. Dr Jansen writes two months later that Mr Eid was experiencing trapezial pain and neck pain, and intermittent numbness in the ring and little fingers. He considers that Mr Eid has possible C7 radiculopathy. Dr Jansen provides a referral for an MRI scan, although that he is not undertaken by Mr Eid until July 2018.
The report from the MRI scan dated 18 July 2018 records moderate to severe impingement of the left C8 root. A nerve conduction study undertaken on 1 August 2018 reports a suggestion of left C8 radiculopathy.
I was not directed to, nor could I locate, any record made by any of the several specialists who have treated Mr Eid since the injury of 9 August 2017 of Mr Eid sustaining a frank injury to his neck on 9 August 2017. Dr Assem does not record Mr Eid experiencing any pain or symptoms in his neck immediately following the incident on 9 August 2017.
Determination
Mr Parker on behalf of Mr Eid refers to Palise v Australian and New Zealand Banking Group Limited [2018] NSWWCCPD 13 (Palise) and Proops v MSS Security Pty Limited [2024] NSWPICPD 45 (Proops) to submit that corroboration from other material is not necessary for a finding of injury to be made if a worker’s evidence is otherwise accepted as truthful.
Mr Gaitanis on behalf of the respondent submits that it is still necessary to undertake a proper interrogation of relevant evidence.
Proops involved a dispute as to whether a worker sustained a frank injury to her neck in addition to accepted injuries to the right ankle and left shoulder. Acting Deputy President Parker said at [75]:
“The Member dismissed the frank injury claim on the basis that ‘the information contained in the claim form and notification of incident’ identified areas of injury as the right ankle and the left shoulder. That was so, but the Member was required to engage with the appellant’s statement evidence and the very substantial medical support for a causal relationship between the events of 5 May 2015 and the neck injury.”
I accept that the description provided by Mr Eid of the incident on 9 August 2017 would have been capable of causing an injury to the neck, being “a sudden and ascertainable or dramatic physiological change or disturbance of the physiological state”, even if it “be as simple as a bruise or a soft tissue strain” (North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 (Felstead) at [81]).
However, the contemporaneous medical records to not provide any support for the claim made by Mr Eid that he did sustain an injury to neck on 9 August 2017. There is no reference at all to an injury to the neck or pain or symptoms in or emanating from the neck in the entries made by Dr Floro in the weeks following this incident. There is no reference to an injury to the neck in the Certificate of Capacity issued by Dr Floro on 24 August 2017, nor in his referrals to Dr Haber or Dr Jansen.
Of particular significance in my view is the record made by Dr Jansen just three weeks after the incident on 9 August 2017 of Mr Eid having free range of motion of his neck. It may be that Dr Jansen was concentrating on the condition of Mr Eid’s right shoulder, but the record from that initial consultation by an orthopaedic specialist does not reveal any possible injury to the neck.
However, it is also necessary to engage with the worker’s evidence (Proops). Mr Eid does not state where he “felt pain” in the statement he makes two years after the incident, although he does not specifically refer to his neck. He does state that he immediately experienced neck pain in a statement which he makes six years after the incident.
I consider particular weight must be given to the details set out in the “Incident and Accident Report” form which is completed and signed by Mr Eid just five days after the incident. Mr Eid only refers to an injury to the right shoulder his description of what occurred and does not mark the neck as being injured in either a diagram or a list of body parts when he is given the opportunity to do so in this form.
Mr Eid states that he was focused was on his right shoulder, but that does not explain why he did not at least identify an injury to his neck in the form which he completes just five days after the incident when his evidence some six years later is that he experienced pain in his neck immediately following the incident. I prefer to rely upon the document which was completed five days after the incident rather than the evidence provided by Mr Eid six years later.
I would add that in Proops “the very substantial medical support for a causal relationship” between the subject incident and the worker’s neck injury weighed in favour of the Acting Deputy President re-determining that dispute in favour of the worker. However, I have already observed that in this dispute there is no medical evidence which records or supports Mr Eid’s claim that he sustained a frank injury to his neck on 9 August 2017.
An additional submission made by Mr Parker is that the record made by Dr Jansen in December 2017 of neck pain and intermittent numbness in the ring and little fingers, along with the findings of pathology at the left C8 root, reveals a classic case of misdiagnosis or a comorbid condition which can support a finding of an injury to the neck on 9 August 2017.
In my view, that submission amounts to no more than speculation. Although Dr Jansen is aware of the symptoms complained of by Mr Eid which may be referable to a condition affecting the cervical spine and reviews the MRI scan in a report dated 24 July 2018, he still does not state in any of his reports that Mr Eid sustained an injury to his neck on 9 August 2017.
Having undertaken a review of the contemporaneous medical records, and also a consideration of all of Mr Eid’s own evidence which pertains to the incident on 9 August 2017, I cannot be satisfied that Mr Eid did sustain an injury to his cervical spine on that day.
Whether the applicant has a consequential condition affecting his cervical spine as a result of the injury on 9 August 2017
The applicant’s evidence
Mr Eid has provided details of the activities which he now undertakes only with his left hand and arm as a result of his injury in his statement dated 28 November 2023, but provides little detail in regard to how the injury has affected his neck. He states that he had to “contour my neck” when mostly using his left arm when he did return to work as a labourer with the respondent, although that work ceased in February 2019. He states that his right arm just dangles off his body.
Mr Eid also states:
“Due to the overcompensation and overreliance, I begun to have symptoms in my left shoulder, arm (elbow), hand, neck and back.”
The medical evidence
There are two expert opinions which support the claim made by Mr Eid that he has a consequential condition affecting his cervical spine as a result of the injury on 9 August 2017.
Dr Jansen in his report dated 8 December 2023 opines that Mr Eid’s neck problems have likely occurred as a consequence of overuse due to right shoulder dysfunction.
Dr Assem finds on examination that Mr Eid has marked drooping of his right shoulder and tenderness over the spinous process of the cervical vertebra. He refers to the MRI scan of the cervical spine taken on 18 July 2018 and considers that Mr Eid has sensory changes in the C8 nerve root distribution. Dr Assem opines:
“The neck pain and suspected C8 radiculopathy are potentially attributable to the alternate posture and compensatory mechanisms adopted to alleviate pain and dysfunction in the injured shoulder.”
There are references to the development of neck pain in reports provided by other doctors who have treated Mr Eid.
A/Prof Jaeger writes in a report dated 27 August 2018 that Mr Eid has non-radicular right sided neck pain, which appears to be related to ongoing shoulder problems. A/Prof Jaeger confirms this in his next report dated 25 September 2018 when he writes that he has explained to Mr Eid that “his neck issues are in relation to his intrinsic shoulder problem.” However, A/Prof Jaeger does not provide any explanation as to how these “neck issues” are related to the right shoulder injury.
A/P Haber writes in a report dated 13 November 2018 that Mr Eid “has noted neck pain referred to the shoulder and pins and needles in his ring and finger”, but his reports otherwise focus on treatment of the right shoulder, which ultimately leads Mr Eid to a second operation on the right shoulder which is performed by A/P Haber on 5 April 2019.
It is apparent that Mr Eid changed his treatment to a different general practitioner, being Dr Jasim, in April 2019. Dr Jasim begins to record the complaints of neck pain in April 2021 and refers Mr Eid for an MRI scan of his cervical spine. However, his notes do not reveal any apparent reason for this neck pain.
Dr Davidson, specialist in rehabilitation medicine, has provided a report dated 1 November 2022. Dr Davidson does not specifically refer to neck pain, but he does observe that Mr Eid’s right shoulder is significantly lower than his left shoulder, and his neck “is held well forward.”
Dr Powell, orthopaedic surgeon, has provided reports at the request of the respondent dated 16 December 2018, 12 May 2022, and 9 May 2024. However, it is only in the last report that Dr Powell addresses the complaints of neck pain made by Mr Eid.
Dr Powell records from Mr Eid that there was no specific injury involving the cervical spine, and that Mr Eid’s symptoms developed in an insidious fashion in 2018. Dr Powell finds on his examination of Mr Eid in May 2024 that Mr Eid has some tenderness to palpation between C4 and T2. He also observes generalised wasting of the right shoulder girdle which was positioned inferiorly in comparison to the contralateral side, although he also considers there to be a significant psychosomatic component to Mr Eid’s condition.
Dr Powell concludes that Mr Eid has clear evidence of well-established, pre-existing multilevel degenerative pathology in the cervical spine, which is evident from investigations performed immediately after the work injury. He opines that Mr Eid’s employment cannot be the main contributing factor in either the development or permanent aggravation of that pre-existing degenerative pathology in the cervical spine.
Determination
The determination of whether a condition suffered by a worker is as a consequence of a work injury was considered by DP Roche in Moon vConmah Pty Limited [2009] NSWWCCPD 134 (Moon). In that matter the worker claimed whole person impairment from symptoms experienced in the left shoulder as a consequence of an accepted injury to the right shoulder. DP Roche said at [45]-[46]:
“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 they asked the wrong question.
The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).”
Deputy President Roche then proceeded to state that the expression “results from” should be applied using the principles set out by Kirby P in Kooragang Cement v Bates (1994) 35 NSWLR 452 (Kooragang). President Kirby said in Kooragang at [462]:
“It has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Kirby P then said at [463]-[464]:
“…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… Is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”
I have already noted that there are two expert opinions which support the claim made by Mr Eid that he has a consequential condition affecting his cervical spine as a result of the injury on 9 August 2017.
I find I cannot rely upon the opinion of Dr Jansen, notwithstanding that he treated Mr Eid for almost a year from soon after the work injury, because Dr Jansen does not explain how overuse of the neck can cause the complaints of neck pain which are made by Mr Eid. Dr Jansen does not set out what activities which have been undertaken by Mr Eid can cause overuse of the neck as a result of the injury to the right shoulder. Furthermore, his opinion must be discounted because the report which contains that opinion is made five and a half years after he last saw Mr Eid.
Mr Eid is therefore left to rely upon the opinion of Dr Assem, who provides a different opinion as to the cause of Mr Eid’s neck pain, namely that the pain is potentially attributable to alternate posture and compensatory mechanisms adopted to alleviate pain and dysfunction in the injured shoulder.
There is other evidence to support this opinion from Dr Assem. Mr Eid states that his right arm just dangles off his body. Dr Davidson makes the observation in November 2022 that Mr Eid’s right shoulder is significantly lower than his left shoulder, and his neck “is held will forward.” Dr Powell observes in May 2024 that Mr Eid’s right shoulder was positioned inferiorly in comparison to the contralateral side. Dr Assem records drooping of the right shoulder.
In my view, Dr Assem provides a rational and acceptable explanation for the neck pain which Mr Eid has experienced when Dr Assem’s opinion is added to the various observations of Mr Eid’s altered posture which I have referred to.
There is also no alternate opinion which challenges the conclusion reached by Dr Assem. Dr Powell does not engage in the question of whether Mr Eid’s altered posture, which I accept results from a serious injury to the right upper limb, is the cause of at least some of the neck pain complained of by Mr Eid.
Dr Powell opines that Mr Eid has well-established, pre-existing multilevel degenerative pathology in the cervical spine, but Dr Powell does not consider whether Mr Eid’s altered posture might aggravate that degenerative pathology, despite Dr Powell’s own observations that Mr Eid’s right shoulder was positioned inferiorly in comparison to the contralateral side.
I therefore accept that Mr Eid has suffered a consequential condition affecting his cervical spine as a result of the injury to his right upper limb on 9 August 2017.
Whether the applicant has a consequential condition affecting his left shoulder as a result of the injury on 9 August 2017
The applicant’s evidence
Mr Eid states that the pain in his right shoulder has worsened over time and become unbearable. He states that he has no strength in the right shoulder at all and that his right arm just dangles off his body.
Mr Eid states that he now uses his left arm and hand for everything, including toileting, driving, and any activities around his house. He states that he uses his left hand when he has to reach upwards, such as to hang something. He states that any heavy lifting, such as shopping, is done with his left hand. He states that he cleans and mows the lawn with his left hand.
Mr Eid states that he is afraid of using his right arm due to the fear of a further increase in pain in that arm.
The medical evidence
The same two experts who support the claim made by Mr Eid that he has a consequential condition affecting his cervical spine also support the claim of a consequential condition affecting the left shoulder.
Dr Jansen in his report dated 8 December 2023 opines that Mr Eid’s subsequent left shoulder problems have likely occurred as a consequence of overuse due to right shoulder dysfunction.
Dr Assem records that Mr Eid is able to do light household chores by relying on the compensatory use of his left hand. He records that Mr Eid drives an automatic vehicle and relies on the use of his left hand. Dr Assem finds both of Mr Eid’s shoulders to be markedly restricted.
Dr Assem opines: “The compensatory overreliance on his left arm, due to limitations and pain in his right shoulder, has led to overuse symptoms in his left shoulder.”
I have already noted that it is apparent that Mr Eid changed his treatment from a general practitioner to Dr Jasim in April 2019. Dr Jasim begins to record the complaints of left shoulder pain in April 2021 and his notes attribute these complaints to overuse of the left arm by Mr Eid.
Dr Powell in his report dated 12 May 2022 records that Mr Eid indicated that he developed left shoulder symptoms around 2021 without any specific precipitating incident, but which has been attributed to increased use of the left arm while rehabilitating from the operations to his right upper limb.
Dr Powell opines:
“Mr Eid has reported the insidious onset of symptoms involving the left shoulder. These developed whilst he was not working. There was no relationship either direct or consequential between the development of his left shoulder symptoms and the accepted workplace incident occurring in August 2017. There can be no contribution from employment as he was not working at the time he developed his shoulder symptoms. They in fact developed several years after the cessation of his employment. Although they have been attributed to increased use of the left upper arm, it is noted that the only activities he was performing during that time were those required for his activities of daily living which would be well within the physiological capabilities of a normal shoulder.
It would not be anticipated that performing these duties should result in the development of structural pathology in a normal shoulder. Thus, although he may have symptoms, these cannot be attributed either directly or consequentially to his employment.”
Dr Powell does not provide any further opinion in his report dated 9 May 2024 on the cause of Mr Eid’s left shoulder complaints, but Dr Powell does diagnose left shoulder rotator cuff tendinopathy and subacromial bursitis characterised by some mild tenderness and restricted range of motion.
Determination
I accept that Mr Eid has sustained a serious injury to his right upper limb, in particular his right shoulder. He has undergone three operations to the right upper limb. There are reports from several specialists, including Dr Crowle, occupational physician, and Dr Bashford, specialist in pain medicine, that record the chronic pain and restriction of movement in the right shoulder complained of by Mr Eid. Mr Eid has been assessed as having 20% WPI by Dr Powell, which includes peripheral nerve damage to the right upper limb.
It is therefore understandable and I accept that Mr Eid has had to rely very much on the use of his left hand and arm to undertake various activities which he describes in his statement dated 28 November 2023, and which have been briefly summarised in this decision, due to the serious injury he has sustained to his right upper limb.
It is quite probable as “a common sense proposition” (Arquero v Shannons Anti Corrosion Engineers P/L [2019] NSWWCCPD 3 (Arquero) at [157]) that the heavy reliance on the left arm due to the injury to the right arm will cause restrictions and symptoms in the left arm, including the left shoulder.
However, I find that just as I could not rely upon the opinion of Dr Jansen in regard to the claim of a consequential condition affecting the cervical spine, I cannot rely upon his opinion on this particular issue. This is because Dr Jansen’s opinion that it is likely that Mr Eid’s subsequent left shoulder problems have occurred as a consequence of overuse due to right shoulder dysfunction is not supported by any findings or records of problems in the left shoulder in the reports which Dr Jansen wrote during the year that he treated Mr Eid.
Furthermore, I have also already stated that the opinion which Dr Jansen provides on the consequential conditions claimed by Mr Eid must be discounted because those opinions are provided in a report that is five and a half years after Dr Jansen last saw Mr Eid.
However, the opinion from Dr Assem that the compensatory overreliance on the left arm, due to limitations and pain in his right shoulder, has led to overuse symptoms in his left shoulder is consistent with the evidence from Mr Eid and details recorded by Dr Jasim from mid-2021, and provides a logical reason for the left shoulder symptoms complained of by Mr Eid, and I accept that opinion. This is similar to the path of reasoning adopted by DP Wood when she accepted the expert opinion on causation of a consequential condition in Arquero at [143]:
“…the evidence was consistent with the historical medical evidence and Mr Arquero’s statement evidence. It was not inherently incredible, and provided a logical basis on which the necessary causal connection could be established.”
I prefer the opinion of Dr Assem over that of Dr Powell. Dr Powell makes the assumption that Mr Eid’s activities of daily living “would be well within the physiological capabilities of a normal shoulder”, but he makes that assumption and subsequent opinion without appearing to record or understand the daily activities which Mr Eid describes in his statement dated 28 November 2023.
Furthermore, it is not necessary for there to be “structural pathology” for there to be symptoms or restrictions in another part of the body as a consequence of the work injury. In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan), DP Snell referred to Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar) and Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni) and said at [169]:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified. In Kumar the relevant finding was based on the existence of symptoms.”
Dr Powell does identify symptoms in the left shoulder for his report dated 9 May 2024 when he finds mild tenderness and restricted range of motion in the left shoulder. Those findings on examination are consistent with the findings made by Dr Assem and records made in the clinical notes of Dr Jasim.
I find that I prefer the opinion of Dr Assem over that of Dr Powell due to the failure by Dr Powell to properly consider the extent of the daily activities undertaken by Mr Eid with the use of his left arm when Dr Powell also finds that Mr Eid does have symptoms in the left shoulder.
There will be a finding that Mr Eid has suffered a condition affecting his left shoulder as a consequence of the injury to his right upper limb.
Whether the applicant has suffered the condition of CRPS as a result of the injury on 9 August 2017 which would allow for an assessment of WPI to be undertaken by a Medical Assessor
The medical evidence
Dr Jasim refers to “R shoulder arm reflex sympathetic dystrophy” in a referral to Prof Bokor on 13 July 2020.
Prof Bokor writes that he thinks Mr Eid is “developing an element of chronic regional pain” when he reports back to Dr Jasim on 24 August 2020.
Dr Crowle refers to a phone conversation she had with A/Prof Haber on 3 April 2020 in a report dated 8 April 2020 and writes: “We both noted features of allodynia and ulna nerve irritation without full features of CRPS… at the time of our respective reviews.”
Dr Assem opines:
“He satisfies the diagnostic criteria for CRPS. He has evidence of hyperalgesia and allodynia. There was a temperature asymmetry and asymmetrical colour changes. There was oedema of his fingers and increase perspiration. He has evidence of decreased active range of motion of his shoulder and elbow. There was no other diagnosis that better explains the signs and symptoms.”
Dr Powell in his report dated 9 May 2024 writes that Mr Eid’s recovery has been complicated by the development of a chronic pain syndrome predominantly involving the right upper limb, but Mr Eid’s presentation for the purposes of that report did not satisfy the criteria for CRPS “as outlined by Workcover”. Dr Powell considers there is a significant psychosomatic component to Mr Eid’s condition.
Dr Gorman, consultant physician and pain specialist, has provided a report dated 23 May 2024 at the request of the respondent. Dr Gorman diagnoses Mr Eid as having adhesive capsulitis of the right shoulder and right ulnar neuropathy with sensory change.
Dr Gorman writes that his assessment differs markedly from Dr Assem because Mr Eid did not have the signs and symptoms of CRPS. Dr Gorman writes that he did not find any temperature asymmetry, asymmetrical colour change, any oedema of the fingers or any increased perspiration, although he acknowledges that adhesive capsulitis can cause some hyperalgesia at the shoulder region. Dr Gorman concludes that the “better diagnosis” is adhesive capsulitis.
Determination
Chapter 17 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed (the Guidelines) sets out strict criteria for the assessment of WPI for CRPS. The opinions regarding CRPS which have been provided by Dr Powell and Dr Gorman do not reach the criteria set out in Chapter 17 of the Guidelines.
However, I agree with the submission made by Mr Parker that the assessment of WPI for CRPS is to be made by a Medical Assessor, so long as there is sufficient evidence to allow for such an assessment to be made. It is for the Medical Assessor to assess whether a worker satisfies all of the symptoms and signs set out in the Diagnostic Criteria for CRPS in Chapter 17.
That was the approach taken by Arbitrator Egan in Elsworthy v Forgacs Engineering Pty Ltd [2017] NSWWCC 64 (Elsworthy), where it was said at [164]:
“Although these Guidelines do not apply to the task of the Commission in determining ‘liability’ for the purposes of s 293 and s321 of the 1998 Act, the directives of the AMS in cl 17.5 and Table 17-1 confirm the vague nature of the condition, but impose a very particular process for the diagnosis in the first place, and then, for assessment of impairment. Such specific requirements, such as those applicable to a diagnosis of CRPS1, are not imposed by the Guidelines on most other conditions of the subject of assessment. Mostly, the AMS’s clinical judgement is called upon.”
Arbitrator Egan then said at [166]:
“Accordingly, while it is clear from Bindah, Bishop, and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79, that the Commission must determine the liability before a matter may be referred to an AMS impairment, if the condition referred for assessment is CRPS, once it is so referred the AMS is bound to diagnose the existence of the condition by application of the prescriptive definition in cl 17.5 and Table 17-1. This is it so regardless of any determination of the Commission. Additionally, that diagnosis by the AMS must be made on the day of assessment applying Chapter 17, and the AMS is not concerned with, or at least not bound by, whether it may have been diagnosable in the past.”
In my view, the material which I have referred to from Dr Jasim, Prof Bokor and Dr Crowle, along with the findings on examination made by Dr Assem, provide sufficient evidence of CRPS to warrant an assessment by a Medical Assessor.
That conclusion is not altered by either the opinion of Dr Powell or Dr Gorman. Dr Powell opines that Mr Eid’s presentation in May 2024 did not satisfy the criteria for CRPS “as outlined by Workcover”, but he is prepared acknowledge that there have been references to the development of a chronic pain syndrome in the right upper limb in the past. Arbitrator Egan in Elsworthy emphasises that it is the diagnosis on the day of assessment which is critical as to whether there will be a finding of WPI for CRPS.
It is also within the expertise of the Medical Assessor to determine if there is, in the opinion of Dr Powell, a significant psychosomatic component to Mr Eid’s condition.
Dr Gorman opines that a better diagnosis of the condition afflicting Mr Eid’s right upper limb is adhesive capsulitis, and it might be that a Medical Assessor will agree with that diagnosis. The application of Table 17 does require that other possible diagnoses are excluded before the diagnosis of CRPS is established.
However, given that Dr Gorman does find some hyperalgesia at the right shoulder region, and there is other medical evidence of CRPS from doctors who have treated Mr Eid, the approach taken in Elsworthy allows for there to be a referral of Mr Eid for the assessment of WPI by a Medical Assessor for CRPS.
Conclusion
In accordance with the reasons given in this decision, there will be an order for the referral of this matter for assessment of WPI of the right upper extremity (shoulder, elbow), left upper extremity (shoulder) as a consequential condition, cervical spine as a consequential condition, scarring (TEMSKI) and Complex Regional Pain Syndrome (CRPS).
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