Foldi v Dyson Appliances Pty Ltd - [2021] NSWPIC 6

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Foldi v Dyson Appliances Pty Ltd [2021] NSWPIC 6
APPLICANT:	Jeanette Foldi
RESPONDENT:	Dyson Appliances Pty Ltd
MEMBER:	John Wynyard
DATE OF DECISION:	5 March 2021
CATCHWORDS:	WORKERS COMPENSATION- claim for surgery to right shoulder from 2 injurious events; both events trivial; no allegation that first event connected with employment; workers condition deteriorated on return to work; no expert evidence as to substantial or main contributing factor; Held- award for the respondent.
DETERMINATIONS MADE:	1. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Jeanette Foldi, the applicant, brings an action for weekly compensation and a declaration that the proposed surgery to her right shoulder is reasonably necessary. The respondent is Dyson Appliances Pty Ltd. On 30 November 2020 a consent amendment was made to the applicant’s pleading by adding “and/or September 2019” after the date of injury of 31 May 2019 in the ARD form describing the “Injury Details.”
Dispute notices were issued on 12 November 2019 and 17 June 2020 and the Application to Resolve a Dispute (ARD) and Reply were duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a)    Did Mrs Foldi’s employment materially contribute to her right shoulder condition;
(b)    If so, was her employment a substantial contributing factor, or the main contributing factor;
(c)    If so, quantum regarding the claim for weekly payments, and

(d) Whether the declaration sought pursuant to s 60(5) should be made.

PROCEDURE BEFORE THE COMMISSION

The matter was heard over two days, on 22 January 2021 and 9 February 2021 via video link. Mr Paul Stockley of counsel appeared for the applicant instructed by Mr Paul Ohm of Messrs Carroll & O’Dea Lawyers. The respondent was represented by Mr Greg Guest from Messrs Sparke Helmore Lawyers. Also on the call on 22 January 2021 was Caitlyn Malone from Icare and on 9 February 2021 Rana Issa from Icare. 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 Commission and taken into account in making this determination:

(a) ARD and attached documents;
(b) Application to Admit Late Documents (ALD) containing clinical notes;

(c) Reply and attached documents;

(d) ALD containing reports of Dr Rimmer;

(e) ALD containing statement of Ms Rosewall, and

(f) Amended Wages Schedule lodged during the hearing on 9 February 2021.

Oral Evidence

No application was made in relation to oral evidence.

FINDINGS AND REASONS

Mrs Foldi made two statements dated 1 October 2019 and 2 October 2020.
Mrs Foldi was born in 1954 and in her first statement related that she commenced employment with the respondent in August 2016 in Customer Service, working at Taren Point. She said her manager was Ms Georgia Rosewall, who was also her Team Leader. Mrs Foldi worked from 9:30am to 5:30pm Monday to Friday, with some overtime on weekends. She described her duties as requiring her to “sit in her office at a workstation with two monitors and answer phones, take enquiries/calls, troubleshoot, sell/sales, register machines and repairs enquiries involving all Dyson products”[1].
[1] ARD page 18
She said that on 31 May 2019 she had been at work all day and straight after work she attended Paria Takeway Restaurant at Kogarah. The dinner was in honour of a fellow employee Team Leader who was going on maternity leave. She said although there was supposed to be 10 or 11 staff there, because it was a cold night only five or six attended.
Mrs Foldi finished work at 5:30pm and then drove to Kogarah and arrived at the restaurant at about 5:50pm. They had an enjoyable night and when Mrs Foldi was about to leave, she picked up her light woollen jacket and as she did so, she said:[2]
“18. I felt excruciating pain go through my right shoulder and upper arm.
19. The pain was so excruciating I couldn’t even put my jacket on or move my arm”.
[2] ARD page 19
She advised her colleagues that she was in so much pain but she did not know why, and she could not lift her arm. She said she had never felt such intense pain in her right arm or shoulder.
She attended her GP, Dr Natalie Berios on 2 June 2019.

Dr Berios

The clinical notes from Dr Berios were lodged. They showed that Mrs Foldi attended on 2 June 2019 complaining of pain in her right arm since the Friday before when she was unable to put her jacket on. The doctor noted that Mrs Foldi worked on 1 June 2019, recording that the pain was initially better in the morning but then worsened over the course of the work day.[3]
[3] ALD page 17
Dr Berios caused an ultrasound to be taken on 3 June 2019. The conclusion of the radiographer was:[4]
“Moderate to large subacromial bursal effusion. In the absence of recent intervention, this is consistent with bursitis.
No discrete rotator cuff tendon tear is seen though dynamic assessment was limited due to restricted range of motion.”
[4] ARD page 3
She underwent physiotherapy and Dr Vallabhjee recorded that when Mrs Foldi returned to work early in the week of 14 June 2019, she was in pain. An entry dated 24 June 2019 showed that a steroid injection had been administered.[5]
[5] Dr Berios’ clinical notes are in the ALD lodged by the applicant
On 27 June 2019 Dr Berios recorded:[6]
“has had physio and cs injection last Monday did have some improvement of pain initially then at work
3pm yesterday felt sudden increase in pain when went to move mouse felt severe pain in right shoulder”.
[6] ALD page 14
On 18 July 2019 the entry included:[7]
“sent home from work yesterday pain felt over lateral neck and in shoulder…
work has made changes re-her workstation/mousepad.”
[7] ALD page 14
On 1 August 2019 Dr Berios recorded that Mrs Foldi was able to feel the crepitus in her shoulder joint and at that stage she had had the past two weeks off work.
By 12 August 2019 Dr Vallabhjee recorded that Mrs Foldi’s shoulder felt much better and that she was on Panadeine Forte. She was back at work at that time. Included in the entry was:[8]
“at times does not have pain in shoulder but at other times has mod – severe pain aching again today, not at the same level it was originally.
considering change in her job so she has breaks off her keyboard.”
[8] ALD page 13
The entry of 29 August 2019 recorded:[9]
“has had physio visits work to help set up her work station”.
[9] ALD page 11
On 8 September 2019 Dr Berios recorded:[10]
“crying in pain overnight
small movements cause severe pain
after 2 hours at her work station her pain is exacerbated….
has had physio at set up her desk properly and had 5min breaks put into her timetable.”
[10] ALD page 11
On 11 September 2019 Dr Berios recorded that there had been no change in Mrs Foldi’s pain:
“pain is felt over the anteriolateral aspect of the right shoulder as well as radiating to the lateral right neck and to proximal right arm….
Assessed pain today – no change in pain…”
Dr Berios requested an MRI on that date. She noted that Mrs Foldi was on two weeks holiday at that time.
On 19 September 2019 Dr Berios recorded that Mrs Foldi was suffering from ongoing right shoulder pain which was affecting her sleep. Dr Berios wrote to the insurer, advising that the diagnosis was of right shoulder bursitis with a large subacromial bursal effusion. Dr Berios said:[11]
“The mechanism of injury was repetitive movements related to computer and mouse work in Jeanette’s job that resulted in the inflammatory condition bursitis. Jeanette was having pain prior to putting on her jacket on the night stated. Putting on her jacket exacerbated the bursitis pain.
… She has tried to have periods of rest, however within 1-2 hours of return to her usual work her pain is severe and intolerable and she has had to leave work for the day when this occurs. Jeanette is currently on leave at the time of writing this report.”
[11] ARD page 16
The entry in Dr Berios’s notes for 19 September 2019 recorded complaints of ongoing pain in the right shoulder which was causing sleep disturbance.
On 26 September 2019 the entry stated:
“WC issued today
Continues to be in pain
PS Heard from work and they have asked her to return next week.”
The next entry was from Dr Quader on 14 October 2019 which noted that Mrs Foldi was due for an operation with Dr Trantalis on 23 November 2019 for rotator cuff repair.
On 3 November 2019 Dr Berios wrote to the insurer[12]. Dr Berios reported a history consistent with the incident at the restaurant.
[12] ARD page 29
She noted that the ultrasound of 3 June 2019 showed a moderate to large subacromial bursal effusion, consistent with bursitis. She also noted that there was no discrete rotator cuff tear seen. She said:
“Bursitis was the working diagnosis. Bursitis around the shoulder can be due to over use injury or a single trauma. I cannot say whether it was solely putting on her jacket or whether repetitive keyboard and mouse related movements in Jeanette’s job also contributed to the bursitis.”
Dr Berios also noted that an MRI of the right shoulder had been performed on 30 September 2019 which suggested that the cause of Mrs Foldi’s incapacity now included a rotator cuff injury.

Mrs Foldi statement

In her statement of 1 October 2019 Mrs Foldi at paragraph 51 said:
“I can confirm the dinner that I attended for [a work colleague] was not paid for by Dyson. We all paid for our own dinner. It was not an official work function and not organised by management.”
Mrs Foldi said that she was trying her best to get back to work but nonetheless was forced by her condition to have time off, which she documented as follows:[13]
“I had time off work between the following dates and have provided medical
certificates. I had time off between the 18/072019 to 02/08/2019.
03/08/2019 to 11/08/2019, 18/7/2019 to 02/8/2019. 14/06/2019 to
21/06/2019. 13/6/2019 to 14/06/2019. 06/06/2019 to 07/06/2019.
03/06/2019 to 05106/2019.”
[13] ARD page 21 [44]
She stated that her workstation was assessed by an expert, and that a rehabilitation expert had suggested that she use her left hand with the mouse.
She then said from paragraph 57:[14]
[14] ARD page 23
“57. I have been thinking about how my injury could possibly have occurred, and how I could possibly have hurt my right shoulder.
58.    At my workstation at work I have a normal sized desk, and, on the desk, there are two monitors and a keyboard.
59.    My filing cabinet is always to the right of me, but another filing cabinet had been put to my left that belonged to Chris, another employee.
60.    I only had a small space to be able to put my chair.
61.    With my chair it had arms on it, and for some reason the arms would just tum in, so I was forever pushing the right arm away so that I could us (sic) my mouse. I was constantly pushing the arm of the chair away to the right with my right elbow and forearm and my right arm in general.
62.    Also I have to lean over to get files in my filing cabinet to my right. Then having another cabinet to my left restricted my space and l complained about it, then they got rid of it. It had been there for about one month.
63.    I still had my chair and the same problems with the arms of the chair.
64.    Ness then gave me a mouse pad which had gel in it and was supposed to make it easier. Then the physiotherapist at work told me not to use it.
65.    In my opinion that constant restriction for about four weeks and the chair with the arms moving contributed to my right arm shoulder injury.”

Compliance Occupational Health and Safety Ergonomic review

The respondent organised an ergonomic review on 15 August 2019 by the above company to address Mrs Foldi’s situation.[15] It made recommendations regarding her workstation set up, noting that Mrs Foldi had an existing bursitis in her right shoulder but had been provided a clearance to return to work on normal duties.
[15] ARD page 7

Mrs Foldi statement 2 October 2020

In her second statement Mrs Foldi referred to her earlier statement, and added that she also had to work answering customer enquiries. This work sometimes involved a hands-on demonstration of various items in a demonstration room including vacuum cleaners, air filters and other system that were part of the Dyson product range. She would do that while wearing headphones to demonstrate how the products worked.
She said:[16]
“12. I was at work on one of my Return to Work days when I lifted my arm at work and my supervisor heard a crack which resulted in immediate and severe pain. I have been unable to return to work because of the pain.”
[16] ARD page 81

Ms Rosewall

The respondent lodged a report from the witness, Ms Georgia Rosewall dated 28 January 2021.
Ms Rosewall said:[17]
“…Yes, I recall that her shoulder made a crack noise, and this occurred at one of the desks in our office. I do also recall that Jeanette said that she had heard a similar sound before but nothing as bad as what it was that day…”
[17] ALD page 5
It was this incident that was the subject of the amendment that I referred to above under “background,” which added the further date of injury of September 2019.

Respondent’s leave records

The respondent lodged Mrs Foldi’s sick leave record.[18] Mrs Foldi remains employed by the respondent as no termination date appeared in that document which also noted that she commenced on 1 May 2017. The data on the leave records was somewhat confusing and difficult to decipher.
[18] Reply page 2

Dr Bodel

Mrs Foldi relied on the opinion of Dr James Bodel, Orthopaedic Surgeon as medico-legal support for her claim. Dr Bodel reported on 4 March 2020[19]. He took a consistent history of the event at the restaurant.
[19] ARD page 37
He noted that Mrs Foldi was then off work for a few days and then went back to her normal role, but that she continued to aggravate the pain from time to time.
Dr Bodel referred to the problems with the workstation that Mrs Foldi mentioned. Dr Bodel noted that there were two filing cabinets which severely restricted her movement and that she also had an old chair that was malfunctioning. He took a history that an occupational health and safety assessment was done, a new chair provided, and one of the filing cabinets removed.
Dr Bodel took a history of the incident in September 2019. He noted that Mrs Foldi had not worked since, and indeed had been referred to Dr John Trantalis, Orthopaedic Surgeon, who had recommended surgery.
Dr Bodel thought that Mrs Foldi had significant rotator cuff pathology.
In looking at relevant documentation Dr Bodel said:[20]
“I have seen an ergonomic review of this lady's workstation, and that is consistent with the history that she gives. There is a signed statement that also confirms the mechanism of the injury and the nature of the work that she had done which had led to the gradual onset of the shoulder girdle pain which was made worse by the episode on 31 May 2019 at the end of the day's work. This statement goes into great detail as to the mechanism of injury and treatment protocols.”
[20] ARD page 40
Dr Bodel noted that Icare had denied the claim on the basis that it was not work related.
Dr Bodel found that Mrs Foldi suffered an injury to her right shoulder on 31 May 2019 as described, which she re-injured at work in September 2019. He found that the nature of her condition was rotator cuff pathology in the right shoulder with pain and stiffness. He said:[21]
“There is a direct causal link between the injuries that she describes and her ongoing complaints.”
[21] ARD page 41

Dr Stephen Rimmer

The respondent relied upon Dr Stephen Rimmer’s advice in reports of 9 July 2020, 27 November 2020 and 7 December 2020.
In his report of 9 July 2020[22] Dr Rimmer took a history consistent with the event on 31 May 2019. He noted the treatment Mrs Foldi had undergone subsequently, and that Dr Trantilis had recommended surgery. He noted that Mrs Foldi had been having “intermittent days off work” since that injury. At the time that he saw her, Mrs Foldi had returned to work approximately five weeks earlier and was on restricted hours and duties; four hours a day, four days a week, instead of her normal 40 hours plus overtime.
[22] Reply page 4
The diagnosis given by Dr Rimmer was a right shoulder subacromial bursitis in conjunction with the aggravation with partial thickness tear of the subscapularis tendon. As to causation he said[23]:
“My clinical reasoning is the trivial nature of the mechanism of injury, ie. picking up a lightweight jacket did not cause a partial thickness tear of the subscapularis however an aggravation.”
[23] Reply page 6
He said the symptoms Mrs Foldi was suffering had no relationship to the nature of her work, as she had been at a social dinner when she injured her shoulder.
Dr Rimmer’s second report was dated 27 November 2020. At page 2 he was asked to confirm what caused the rotator cuff tear, and he said:
“I am able to confirm the etiology of the tear as degenerative changes consistent with the worker’s age (64 at the time of the injury).”
In his third report of 17 December 2020, lodged in the same ALD at page 3, Dr Rimmer was asked:[24]
“1. Did the worker provide this history to you during your original examination?”
[24] ALD lodged by the respondent page 3
Dr Rimmer answered:
“No, she did not. She was adamant at the end of an evening out with her work colleagues she went to pick up her jacket which caused the immediate onset of sharp pain in her right shoulder.
In my assessment under the heading Past History she denied a previous history of injury to the right shoulder, that is, she was asymptomatic prior to this.”
Dr Rimmer was asked whether, assuming the history was accepted, it was an incident that represented a new injury or was likely to reflect a pre-existing injury of the shoulder?
Dr Rimmer replied:
“Not applicable. I do not accept the history.”
He was then asked:
“Based on the history would you consider that employment has been a substantial contributing factor to this further injury? If not, why not.”
Dr Rimmer said:
“No, it has not, because Ms Foldi was adamant prior to the night of 31 May 2019 she had always been asymptomatic in her right shoulder and therefore employment has no relationship to the symptoms in her right shoulder.”

SUBMISSIONS

Mr Guest

Mr Guest submitted that there was no evidence that connected the onset of Mrs Foldi’s right shoulder condition at the restaurant on 31 May 2019 with the nature and conditions of her employment.
Mrs Foldi was 64 years old at the time, and the most plausible explanation was that given by Dr Rimmer, that there was an underlying constitutional condition which revealed itself when Mrs Foldi simply picked up her light weight jacket.
It could not be said therefore that Mrs Foldi’s employment was a contributing factor at all, let alone a substantial one, it was submitted.
Mr Guest referred to the report of Dr Berios of 19 September 2019 and submitted that I would not accept her opinion as to causation, as, although Dr Berios maintained that
Mrs Foldi’s right shoulder had been symptomatic prior to the injury of 31 May 2019, there was no entry in the clinical notes that would confirm that assertion, moreover it had not been made by Mrs Foldi, herself.
Mr Guest referred to the ultrasound of 3 June 2019. He argued that although Dr Berios said in her report of 3 November 2019 that no rotator cuff tear was apparent, her comment was not necessarily accurate when one looked at what was actually said . The radiographer had said that although no discrete rotator cuff tendon tear had been seen, dynamic assessment was limited because of Mrs Foldi’s restricted range of motion. This was significant, Mr Guest claimed, because the rotator cuff tear found on a later MRI scan might have been present on the 3 June 2019 ultrasound, and accordingly as I understood Mr Guest, have been part of the damage sustained on 31 May 2019.

With regard to the September 2019 injury, Mr Guest repeated that it was a further revelation of the underlying pathology. He argued that, as its cause had been another trivial incident, it had at the very least not been a substantial contributing factor pursuant to s 9A of the 1987 Act, and the fact that it occurred at the workplace was incidental.
Mr Guest submitted that the regular entries in the clinical notes about Mrs Foldi’s constant right shoulder complaints further supported his case. They were so constant and consistent, he argued, that they were proof of the continuing aggravation of the injury on 31 May 2019. He submitted that “this was not the history of a worker who has recovered from the incident in May.”
Mr Guest noted that the September 2019 incident had not been mentioned in Mrs Foldi’s first statement, which had been dated 1 October 2019. It followed, he said, that Mrs Foldi’s shoulder was so constantly symptomatic that she then did not bother to report it. It was a further illustration of the continuity of symptoms that had been caused by the non-work related event of 31 May 2019.
With regard to the report of Dr Bodel, Mr Guest submitted that the history taken was consistent with the proposition that Mrs Foldi had never recovered from the initial injury. He referred to Dr Bodel’s observation regarding documentation, that there had been a gradual onset of the shoulder girdle pain prior to 31 May 2019. Mr Guest repeated that there was no evidentiary support for the proposition that Mrs Foldi had been symptomatic prior to that date.
Mr Guest referred to Mrs Foldi’s thoughts in her second statement about how her shoulder condition originated, but submitted that those thoughts amounted to no more than speculation, as there was no allegation that she became symptomatic prior to 31 May 2019.

Mr Stockley

Mr Stockley referred to the opinion by Dr Berios that she was unable to determine whether Mrs Foldi’s bursitis could be caused by overuse or by a single trauma. Mr Stockley agreed with Mr Guest’s submission that the action of putting on a light weight jacket was relatively innocuous, but submitted that the overuse hypothesis was more significant because of that fact.
Mr Stockley submitted that there was no definitive evidence that the subscapular tear detected on the MRI scan was either present, or of the same magnitude prior to the September 2019 injury, as the MRI scan post- dated the occurrence of that injury.
Mr Stockley said that Mr Guest had been at great pains to describe the jacket incident as being innocuous, but Mr Stockley submitted it was a matter of common sense that such an innocuous act could not of itself have caused such a grave injury. Dr Berios’s hypothesis that the repetitive use of the keyboard contributed to the injury accordingly deserved some consideration.
Mr Stockley relied on the opinion of Dr Bodel. The description of the nature and conditions of Mrs Foldi’s employment in her statement supplied the necessary evidentiary confirmation for his assumptions, and Dr Bodel took a history of the two injurious events, Mr Stockley said.
Dr Bodel was satisfied that there was a direct causal link between the injuries and Mrs Foldi’s ongoing complaints, which made her unfit for her pre-injury occupation. He supported the surgery recommended by Dr Trantalis. Thus, Mr Stockley argued, Dr Bodel’s opinion that there was a direct causal link was supported by the opinion of Dr Berios that the 31 May 2019 event and the nature and conditions of employment were causative.
The opinion from Dr Rimmer did not assist the respondent’s case, Mr Stockley contended.
Dr Rimmer confined himself to an opinion as to whether the actual picking up of the light weight jacket created any liability in the respondent, concluding that it did not. Dr Rimmer did not engage with Dr Berios’s hypothesis that the nature and conditions of Mrs Foldi’s employment were relevant to the development of bursitis and that the two injurious events had contributed to her incapacity and need for surgery.
Mr Stockley again acknowledged the careful attention Mr Guest had paid to the entries in
Dr Berios’s notes and submitted that they underscored the opinion of Dr Berios, which was based on her complete and detailed knowledge of Mrs Foldi’s condition as her GP. In the final analysis, Mr Stockley said, this was a contest between the opinion of the qualified and treating medical practitioners against that of the qualified practitioner retained by the respondent, who did not have a complete set of assumed facts and history.
Mr Stockley disagreed with Mr Guest’s submission that the case concerned only a personal injury as described in s 4a(i) of the 1987 Act and that accordingly his client had failed to establish that employment was a contributing factor pursuant to s 9A. Mr Guest appeared to have conceded in his submissions, Mr Stockley argued, that whatever the cause of the applicant’s condition was, it included the aggravation of an underlying condition. Accordingly, Mr Stockley conceded, s 4b(ii) applied and I would have to be satisfied that employment had been the main contributing factor.

Mr Guest in reply

Mr Guest again referred to the opinion of Dr Berios when she could not say whether the repetitive keyboard use contributed to Mrs Foldi’s bursitis, or whether it was solely the act of putting on her jacket. Dr Berios’s opinion accordingly fell a long way short of supporting the applicant.
Mr Guest repeated his submissions as to why Mrs Foldi’s condition after the event of September 2019 was not work-related.

DISCUSSION

The argument as to whether the nature and conditions of Mrs Foldi’s employment prior to the event of 31 May 2019 contributed to her condition I did not find to be helpful. Mrs Foldi herself did not make any comments about any prior symptoms, and neither did any appear in the clinical notes. I note that Dr Berios gave her unsolicited opinion In a report to the insurer, on 19 September 2019. I note also that she resiled from it in her next letter to the insurer dated 3 November 2019, when she, with admirable frankness, declared that she was unable to say whether the event of 31 May 2019 was the sole cause of her injury, or whether the nature and conditions of her employment had contributed.
Similarly, there is no support for any contention that Dr Bodel had taken such a history. He noted there was no relevant past medical history, whilst taking a history that was entirely consistent with the content of Mrs Foldi’s statements. His comment regarding the presence of shoulder symptoms prior to 31 May 2019 was in reference to documentation before him, and related specifically to “a signed statement,” which he did not identify, but from which he was quoting without any indication that he adopted its opinion.
It is of course possible that the nature of the work Mrs Foldi was doing prior to 31 May 2019 did contribute to her injury on that date, on the assumption that although she was asymptomatic, the advanced nature of her constitutional condition was nonetheless being aggravated by her duties. However I am not persuaded of that fact on the evidence before me. There was no discussion of that hypothesis by Dr Bodel, and Dr Rimmer dismissed it out of hand.
The history which Dr Rimmer discussed in his third report appeared to be related to the same question; whether Mrs Foldi’s employment contributed to her right shoulder injury on 31 May 2019. Accordingly, Dr Rimmer did not consider whether the nature and conditions of
Mrs Foldi’s employment between her return to work on light duties and her final injury in September 2019, were contributory.
Both counsel relied on the content of the clinical notes from the practice of Dr Berios.
Mr Guest submitted that it was no more than evidence of the continuing symptomatology caused by the injury of 31 May 2019, whilst Mr Stockley submitted that it provided the evidence that the nature and conditions of Mrs Foldi’s work aggravated that condition.
As I indicated, the leave records were difficult to interpret, with different columns indicating different and contradictory dates. It would be unsafe to attempt to interpret them in the absence of any explanatory material. Mrs Foldi supplied a number of dates which she said her medical certificates confirmed, but again those dates were repetitive and out of order, as can be seen. As to the medical certificates themselves, they showed the following:
3.6.2019 – 7.6.2019        no work capacity[25]
11.9.2019 – 31.12.19      no work capacity[26]
17.11.19 – 15.12.19        partial capacity 4hours per day, 4 days per week.[27]
16.12.19 – 11.3.20          no work capacity[28]
27.2.20 – 27.3.20            partial capacity, 4hours x 4 days[29]
[25] Applicant ALD from (computer) page 92
[26] Ibid, pages 103,107,110,117,112
[27] Ibid, page 120
[28] Ibid pages 123,131,133,136
[29] Ibid page 141
[30] ARD page 67
1.6.20 – 2.6.20                no work capacity[30]
Doing the best I can from the entries in the clinical notes, Mrs Foldi returned to work around 11 June 2019, having undergone five physiotherapy sessions. On 27 June 2019 she felt a sudden increase in pain when moving the mouse for her computer but she worked on until 17 July 2019, when the entry of 18 July 2019 said that she had been sent home from work the day before. From the evidence of the medical certificates, it would seem that Mrs Foldi returned to work without any time off. The report from Compliance occupational Health and Safety indicated that Mrs Foldi was certified fit for normal duties when their expert reported on 15 August 2019 and, in the absence of any contrary evidence, I accept that she had been on that certification since her return to work on 11 June 2019.
The amendment to the pleadings simply indicated that the further date of injury was “September 2019.” No attempt was made to clarify that date further, and the above analysis of the medical certificates was not made by either counsel. I note that there is no certification for the two weeks off work that was mentioned by Dr Berios on 1 August 2019, and it may be that Mrs Foldi was then taking annual leave. The entry of 12 August 2019 confirmed that the level of symptomatology within the right shoulder was variable. Dr Vallabhjee noted that sometimes the pain was absent but that at other times it was moderate to severe and on that visit Mrs Foldi reported that she was experiencing severe pain, but not at the same level as it had been originally.
As noted, the respondent then brought in the ergonomic experts and, it would seem,
Mrs Foldi’s physiotherapist, to assist in setting up her workstation. Despite this the next entry of 8 September 2019 reported that Mrs Foldi had been crying in pain overnight and that after two hours at her work station her pain was exacerbated. On 11 September 2019 no change was reported. 11 September 2019 is the date from which her medical certificates showed that Mrs Foldi had no work capacity, through to 17 November 2019. It can be seen that some of the dates overlapped regarding certification, and indeed two of them were addressed to Centrelink. I note that Mrs Foldi was certified fit for four hours, four days per week from 27 February 2020 and that her wages schedule reflects that income.
No submissions were made regarding the claim for weekly payments but I note that the wages schedule, which was lodged as a separate document, alleges that the applicant had no work capacity from 1 October 2019 to 29 February 2020. Thereafter she received varying amounts of income whilst I assume she was doing light duties and indeed continues to receive the same up to the last date of the schedule, 10 January 2021.
Taking the above into account I think it likely that the second injurious event occurred on or about 11 September 2019, which date is broadly consistent with the entries in the clinical notes, the medical certificates and the wages schedule.
Counsel referred to the obligation on a worker to prove not only that employment contributed to his/her injury, but to establish also that the employment was either a substantial contributing character, if the injury were a personal injury, or the main contributing character, if the injury were either caused or aggravated by a disease process. There is no useful purpose to be served by rehearsing the provisions of s 4 of the 1987 Act, from which these distinctions arise, as the applicant has failed to establish anything more than that her employment was a contributing factor to her injury after 31 May 2019.
In so finding, I take into account Mrs Foldi’s thoughts as to the cause of her present condition which I have reproduced above. I assume it relates to the work she was doing after 31 May 2019, as she referred to her physiotherapist giving her advice as to the use of a particular mouse. I think her opinion might very well be correct, but regrettably there is no expert evidence which says that the nature of employment was either a substantial contributing factor, or the main contributing factor.
Similarly, I accept the opinion of the radiologist on 30 September 2019 that Mrs Foldi suffers from changes of subacromial bursitis, subscapularis tendon tear, long head of biceps tendinopathy, and supraspinatus tendinopathy. I note Mr Guest’s submission that the rotator cuff tear may have been present at the time of the ultrasound of 3 June 2019, but equally it may not. The definitive evidence, as Mr Stockley called it, is that the MRI scan of the 30 September 2019 demonstrated a rotator cuff tear that had not been hitherto found. Again, however, there was no expert opinion upon which I could find that this pathological development had occurred because of the nature of Mrs Foldi’s duties to the extent that those duties were the main contributing factor, or a substantial contributing factor to her injury.
I was not assisted by the opinion of Dr Bodel, who did not explain what the direct causal link was between the injuries described and the ongoing complaints. Indeed, the relevant question was whether there was a direct causal link between the type of duties Mrs Foldi was doing after 31 May 2019 and her injury on or about 11 September 2019, which Dr Bodel described as a “re-injury”. In as much as Mr Stockley relied on the comment by Dr Bodel about the unidentified statement suggesting that the injury had been by way of a gradual onset, worsened by the event of 31 May 2019, such a conclusion is not available on the facts I have explained above.
Although an Arbitrator is entitled to rely on a common sense evaluation of the sequence of events, that does not entitle me to infer that Mrs Foldi’s employment was indeed a substantial contributing factor, or the main contributing factor. There was some force in
Mr Guest’s submissions that the two injurious events were no more than the revelation of an underlying previously quiescent pathology. Each event was trivial, and not in itself related to any employment activity. There is no suggestion, even by Mrs Foldi, that the incident of 31 May 2019 had any relation to work at all. The incident on or about 11 September 2019 again was trivial in that Mrs Foldi simply moved her arm on the divider when she was talking to
Ms Rosewall. Whilst there may have been some contribution from Mrs Foldi’s work activities to the second injurious event, the nature of her duties were not onerous, and had been the subject of workplace visits by both the ergonomic experts and Mrs Foldi’s physiotherapist.
For these reasons, there is an award in favour of the respondent.

John Wynyard

MEMBER

5 March 2021