Fonti v Verdi Verdura Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Fonti v Verdi Verdura Pty Ltd [2022] NSWPIC 308
APPLICANT:	Raffaele (Ralph) Fonti
RESPONDENT:	Verdi Verdura Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	20 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; applicant suffered accepted injury to the cervical spine and left shoulder; his claim for consequential condition to the right shoulder was disputed; Held– the applicant suffered a consequential condition to his right shoulder as a result of his accepted injuries; the circumstances of this case were broadly consistent with those found in Kumar v Royal Comfort Bedding Pty Ltd and Arquero v Shannons Anti Corrosion Engineers Pty Ltd; the decision in Grantv Dateline Imports Pty Ltd was distinguishable from this matter on the facts, as the applicant had discharged the onus of proof in establishing on a common sense basis the causal connection between the accepted injuries and the alleged consequential condition caused by over use of the right shoulder; matter remitted to the President for referral of all claimed body systems for assessment of permanent impairment.
DETERMINATIONS MADE:

The applicant suffered an injury in the course of his employment to his cervical spine and left upper extremity (shoulder) along with scarring in the course of his employment with the respondent on 14 July 2017.
As a result of the injury referred to in paragraph 1 above, the applicant suffered a consequential condition to his right upper extremity (shoulder) due to overuse.
The matter is remitted to the President for referral to a Medical Assessor for determination of the whole person impairment arising from the following:
Date of injury: 14 July 2017.
Body systems referred: Cervical spine, left upper extremity (shoulder), scarring (TEMSKI) and right upper extremity (shoulder).
Method of assessment: whole person impairment.
The documents to be referred to the Medical Assessor to assist with determination are to include the following:
(a)Application to Resolve a Dispute and attachments;
(b)Reply and attachments, and
(c)respondent’s Application to Admit Late Documents dated 23 May 2022.

Dr Harbison’s report found in the respondent’s Application to Admit Late Documents and Dr Watson’s report in the Reply are only to be taken into consideration as to the history contained within them, not the findings on examination or conclusions.

STATEMENT OF REASONS

BACKGROUND

On 14 July 2017, Raffaele Fonti (the applicant) was carrying a box of carrots on his left shoulder which weighed approximately 15kg in the course of his employment. The box began to slip and the applicant caught it, experiencing immediate pain in his left shoulder and neck.
The applicant's claim for injury to his left upper extremity (shoulder), cervical spine and scarring have been accepted. He also alleges that as a result of over reliance on his right arm, he developed a consequential condition to the right shoulder. Verdi Verdura Pty Ltd (the respondent) disputes liability for the alleged consequential condition.
The applicant brings proceedings seeking payment of permanent impairment compensation in respect of both shoulders, his cervical spine and scarring consequent upon surgery. Only the alleged consequential condition to the right shoulder is an issue. The balance of the claimed injuries will be referred to a Medical Assessor for assessment, regardless of whether the applicant succeeds in establishing the presence of the alleged consequential condition.

ISSUES FOR DETERMINATION

The parties agree that the only matter in dispute is whether the applicant suffered a consequential condition to his right upper extremity (shoulder).

PROCEDURE BEFORE THE COMMISSION

The parties attended a hearing on 23 May 2022. 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.
At the hearing, Mr McEnaney of counsel instructed by Mr Taouk, solicitor appeared for the applicant. Mr Combe of counsel instructed by Ms Petrulo appeared for the respondent.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and taken into account in determining the dispute:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    respondent's Application to Admit Late Documents (AALD) dated 23 May 2022 and attached documents.
At the hearing, it was agreed that the report of Dr Harbison which forms part of the respondent's AALD and the report of Dr Watson found in the Reply would only be relied on by the respondent as to the histories taken by those doctors rather than their findings or conclusions.

Oral evidence

There is no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition to his right shoulder

It is important at the outset to establish the relevant test for determining the presence of a consequential condition. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from an accepted back injury. At [35] and following, the Deputy President stated:
“35 by asking if Mr Kumar has suffered a section 4 injury to his right shoulder, the arbitrator erred in his approach and 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 conceded 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. 36 The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis) [2011] NSWWCCP 4; Vivaldo; Conmah [sp?] Pty Ltd [2009] NSWWCCPD 134; Australian traineeship System v Turner [2012] NSWWCCPD 4 and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).”
The Deputy President then referred to the facts of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) and to the judgment of Kirby P (as he then was) at [462E]. He noted, in accordance with the decision in Kooragang that it has long been recognised causation is not always direct and immediate. The oft-cited passage from Kirby P's judgement is to the effect than what is required is a commonsense evaluation of the causal chain to see whether the causal link can be established. 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 opinion.
In Kooragang, his Honour concluded that the Court of Appeal was left with “an unbroken chain of undisputed evidence" and a combination of facts “beyond mere predisposing circumstances” and combined to make it proper to reach a conclusion that the death of the worker in that case had resulted from his original injury and all the consequences which is set in train.
In Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan), Snell DP dealt with the question of consequential injury. In that matter, a school teacher made a claim for consequential conditions to her cervical spine and shoulders following an accepted initial injury involving her power of speech. The Senior Arbitrator at first instance found there was a consequential injury and the employer appealed. The Deputy President upheld the findings of the Senior Member and referred to the decisions in Kumar and Moon as establishing that there is no requirement to necessarily prove the nature of pathology complained of when dealing with an allegation of consequential condition.
In Moon, a matter which involved a compensable injury to the right shoulder allegedly resulting in a consequential condition to the left, Roche DP at [44] – [46] describe the relevant test as follows:
“44 the evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restrictions has resulted from his employment with Kumar. 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.
“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….46 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 of 'resulted from' the relevant work injury."
Deputy President Wood set out the circumstances in which an examination and diagnosis of a consequential condition is relevant and appropriate in Grantv Dateline Imports Pty Ltd [2022] NSWPICPD 3 (Grant), a decision to which Mr Combe referred in his submissions.
In that matter, the applicant alleged an overuse consequential condition to his left upper extremity. Senior Member Bamber (whose decision was affirmed on appeal) noted the applicant's own independent medical examiner (IME) had diagnosed a central pain syndrome affecting the body part alleged in the application to have suffered a consequential condition, and as such there was no basis on which to find the left arm symptoms were caused by overuse.
What is apparent from the decision in Grant is the requirement to be persuaded of the existence of the fact the applicant suffered a condition by way of overuse. Wood DP concluded Senior Member Bamber was correct and noted the decision Kumar and also that in Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCC PD 3 (Arquero) was able to be distinguished on the basis that an examination of the available material revealed clear evidence and medical opinion that the worker's condition in those earlier matters was a consequence of the work-related injury.
In Arquero, the worker suffered a right knee injury in 2000, and in 2014 develop symptoms in his left knee. In that matter, there was clear evidence of altered gait and, post-surgery leg length discrepancy consistent with the worker's own evidence.
The effect of these authorities is that where the cause of an alleged consequential condition is clear on the evidence, there is no need to identify any relevant pathology. As Snell DP observed in Brennan, the relevant authorities do not suggest any need that a finding of consequential condition necessarily makes the identification of pathology necessary. It is sufficient to find if evidence supports it a condition that results from an employment injury.
As Wood DP noted in Grant, "while many matters involving the claim for compensation in respect of a condition consequent upon an injury identification of the diagnosis is not necessary or relevant, each case turns on its own facts and the available evidence". Where there is tension between an allegation of consequential condition based, for example, on overuse and various medical opinions that symptoms were caused by something not attributed to overuse, it is appropriate to enquire as to whether a diagnosis connected with the alleged cause of the consequential condition can be made out.
In this matter, there is competing evidence as to the cause of the applicant's right shoulder issues. The respondent alleges the applicant’s symptoms are in fact referred pain from his accepted cervical spine injury rather than a discrete consequential condition to the right shoulder.
However, the mere existence of competing evidence is not of itself enough to necessitate the making of a diagnosis in cases surrounding consequential condition. The question to be determined is whether, having regard to all the evidence, the applicant has discharged the onus of proof that his right shoulder condition has arisen as a result of overuse. For the following reasons, I believe that onus of proof has been discharged.
The applicant’s evidence in relation to his right shoulder is contained in his statement dated 11 February 2022. The applicant states:
"7. As discussed in my former statement dated 16 November 2017, I continued to work for about six to seven weeks following the accident of 14 July 2017.
8. Although my employers were aware of my injuries and provided me with some assistance, my duties pretty much remain the same. As a result, I was still responsible for lifting boxes up to 20kg,15 bags up to 50kg, pushing trolleys, carrying goods, packing orders, driving a manual van and loading deliveries.
9. During this time, I would more so rely on and overuse my right upper extremity to carry out these duties. For example, I would carry most of the load using my right shoulder rather than my left shoulder. I would also load deliveries and push trolleys using predominantly my right shoulder and right arm. This was because I was limited and restricted by the pain and symptoms I suffered in my neck and left shoulder.
10 I am also right-handed and so, it was natural for me to use my right shoulder especially when my left shoulder had been injured and restricted.
11. Following my accident and continuing even after my last date at work at Verdi Vendura Pty Ltd on 26 August 2017, I would also avoid using my left shoulder and neck when undertaking activities of daily living.
12. This was because I also wanted to protect my neck and left shoulder injuries from further aggravation and to provide my neck and left shoulder the best chance of recovering. As a result, I was also relying on and using my right shoulder to undertake tasks such as showering, eating, driving and grocery shopping. I would also sleep in my right side to protect my left shoulder.
13. As a result of the above, I gradually began to develop pain and symptoms in my right upper extremities and more specifically, my right shoulder.
14. As a result, I began to experience and suffer pain and symptoms in my right shoulder in addition to my left shoulder and neck. I consulted with my GP, Dr Mamdouh Matar and complained of my right shoulder pain on 16 April 2018."
The medical evidence also discloses complaints by the applicant to his general practitioner in relation to his right upper limb. On 6 April 2018 he complained of numbness in his right arm against a background of previously only having it into his left shoulder.
Mr McEnaney noted these complaints in the right shoulder arose some nine months or so post injury and submitted by consistent with months of overuse as set out in the applicant's relevant statement.
Dr McKechnie, treating neurosurgeon provided the report to the respondent insurer dated 21 February 2018. By that time, the applicant's injury to his neck and left shoulder had advanced to the point where surgery was recommended and the applicant was “experiencing severe neck pain radiating across the left shoulder”. Mr McKechnie submitted that finding on examination is consistent with the applicant’s evidence that his left shoulder was essentially useless by this time, requiring increased use of his right shoulder and arm.
The applicant’s cervical spine injury lead to C4/5 – C5/6 partial laminectomy, posterior microdiscectomy and spinal rhizolysis by Dr McKechnie on 14 March 2018. A review on 17 May 2018 recorded the applicant complaining of residual neck pain, numbness in his hands and trouble holding objects, more so on the left-hand side.
On 14 August 2020, the applicant attended Inner West Pain Centre and was as assessed by Dr Patterson. On examination, Dr Patterson noted the applicant was walking with his right shoulder held down and with minimal movement. He noted “pain radiated through the trapezius muscles to the shoulders, there was bilateral tenderness more marked over the supraspinatus tendon bilaterally".
Mr McEnaney noted this matter differed from the circumstances in cases such as Grant, in that the alleged consequential condition had been clearly complained of contemporaneously and treatment sought for it rather than its existence first being raised by an IME.
Dr Patrick, IME provided a report dated 26 August 2021. In that report, Dr Patrick recorded the applicant complaining of “some range of consequential mild or limited range of active motion at the right shoulder, from overuse”. On examination, Dr Patrick found the following:
"There is diminished range of active motion at the left shoulder more so than right. At the left shoulder measured with goniometer Raffaele Fonti has 110 degrees of active flexion, 40 degrees of extension, 90 degrees of abduction, 20 degrees of adduction, 60 degrees of external rotation and 50 degrees of internal rotation. At the contralateral right shoulder Mr Fonti has 170 degrees of flexion, 40 degrees of extension, 160 degrees of abduction, 40 degrees of adduction, 70 degrees of external rotation and 80 degrees of internal rotation – all consistent to repeated goniometer measurement. There is no definite evidence for problems at the elbows."
Dr Patrick then provided the following opinion:
“The history Mr Raffaele Fonti’s workplace accident of 14 July 2017 is as recorded in detail above, as are the details now the findings on clinical examination. The further history and the detail of his treatment as provided to date are as described, including the two level cervical spine surgery as well as the late declinature for the necessary left carpal tunnel release surgery…
He also has significantly diminished range of active motion at his left shoulder, consistent to repeat goniometer measurement, and there has been some consequential limitation to right shoulder as a result of favouring (sparing) the injured left shoulder."
In my view, Dr Patrick's findings are consistent with an overuse consequential condition as described by the applicant’s uncontested statement evidence which details the nature and extent of his overuse of his right shoulder and arm consequent upon the accepted injury to his left shoulder.
Dr Machart, IME for the respondent addressed the question of consequential condition in his report dated 5 February 2022. When specifically asked about consequential condition, Dr Machart’s said:
"Attributability is aggravation of the cervical spine. There was no injury to other areas of the body. There is no medically confirmed consequential injury to the right shoulder. If that was the claim, then it does not have medical basis. There is no injury to the right shoulder. He is much less active since the injury. He does not work in physically demanding industry, and does not do housework. Medical literature is not in support of consequential shoulder injury. Unless there was something that dictates otherwise, then I did not see a reason to make such a conclusion."
In my opinion, that “demonstrates a problematic approach to the question of consequential condition”. Dr Machart seems to be suggesting that absent an injury to the right shoulder, there can be no consequential condition to it. Moreover the fact the applicant is less mobile now than previously does not address the applicant's own uncontested evidence that his left arm was essentially useless to him and as a result he overused his right arm and shoulder. The applicant should not be criticised if Dr Machart failed to take that history from him.

Dr Machart then goes on to say, contrary to use of established authority in this jurisdiction, that there is essentially no medical basis for a consequential condition due to overuse he says:
“Consequential injury to the opposite limb is disproportionate in medicolegal claims, and not commonly seen in standard orthopaedic practice. Careful analysis is important rather than blanket acceptance."
Having made that claim, Dr Machart himself provides “careful analysis" of the applicant’s stated overuse. Rather, he simply takes a broad brush approach that such overuse conditions are not often seen. In my opinion, the failure of Dr Machart to enquire fulsomely into the applicant’s nature and extent of overuse is a significant omission, as he has not taken into account the nature and extent of the applicant’s left arm issues and the consequent overuse of his right arm. Indeed, Dr Machart does not even find the presence in the left shoulder injury despite the respondent accepting liability for it.
The respondent also relied on the reports of Dr Harbison and Dr Watson only as to the histories taken by them. Neither doctor made mention of the applicant's right shoulder, however, it is apparent from their reports that these doctors were concerned with the applicant’s cervical spine and his left shoulder. Absent a statement from either doctor to the effect that they enquired of the applicant's right shoulder only to have him deny any problems with it, I do not find the lack of mentioning of the right shoulder to be a significant factor in this case.
Mr Combe submitted the medical evidence established the issue in the applicant’s right shoulder was in fact referred pain from his cervical spine injury, and relied on the opinion of Dr Patterson, pain surgeon containing his report as a general practitioner dated 14 August 2020. Mr Combe submitted that finding was supported by Dr Watson, IME who found the right shoulder pain to be referrable to foraminal nerve compression.
Mr Combe noted the history of the applicant complaining of pain in both hands, referrable to the cervical spine injury. Whether or not that is specifically the case is, with respect not determinative of whether the applicant also suffered a consequential condition to his right shoulder. It may well be the case that the applicant’s numbness and certain issues in his right hand relate to his cervical spine injury, however, that is a separate question to whether he developed a consequential condition due to overuse of his right shoulder.
On balance, I am of the view there is a sufficient evidentiary basis to find consequential condition by way of overuse by the applicant to his right shoulder. The absence of complaints of issues in the right shoulder in the immediate aftermath of the initial injury is not, contrary the respondent's view, something which should be held against the applicant. Rather, the absence of immediate complaint after the initial injury in my view supports the applicant's point of the onset of right shoulder issues after a lengthy period of overuse in an attempt to favour the left shoulder and protect it.
In my view, the applicant’s evidence establishes the nature of overuse for a lengthy period of time. He sets out with some significant detail the nature and extent of the tasks which he carried out and with which he overused his right shoulder.
On examining the totality of the evidence and on a common-sense basis, I find the applicant has established a causal link between the original injury to his left upper extremity and cervical spine and the alleged consequential condition to his right shoulder via overuse.
The applicant’s statement evidence is uncontested and broadly accords with the findings of both treating practitioners and his IME Dr Patrick, whose opinion I prefer to that of
Dr Machart. Dr Patrick and the applicant's treaters found not only paranesthesia in the applicant's right hand and fingers but also restricted range of motion in the shoulder itself.
The timeframe from the original injury to the complaints of pain and discomfort in the applicant's right shoulder is, in my opinion, on a commonsense basis consistent with a consequential condition developing in the right shoulder as a result of overuse by the applicant.
Given the applicant’s evidence in my view satisfies the onus of proof by virtue of the opinion of Dr Patrick and the contemporaneous recording of clinical notes and the applicant’s statement, I am satisfied on the balance of probabilities that there is no requirement in this matter to determine the nature of the pathology of the alleged consequential condition and to that extent the matter is capable of being differentiated from the decision in Grant.

SUMMARY

For the above reasons, the Commission will make the findings and orders as set out on page one of the Certificate Determination.

[2022] NSWPIC 308

20 June 2022