Isaac v Bedlinen & More Pty Ltd (In Liquidation)
[2023] NSWPIC 607
•10 November 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Isaac v Bedlinen & More Pty Ltd (In Liquidation) [2023] NSWPIC 607 |
| APPLICANT: | Zardi Isaac |
| FIRST RESPONDENT: | Bedlinen and More Pty Ltd |
| SECOND RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 10 November 2023 |
| DATE OF AMENDMENT: | 26 March 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant sought a finding that she had suffered a consequential injury to her left shoulder after an injury to her right shoulder from a frank injury and the nature and conditions of her work; she sought referral to a Medical Assessor in relation to the left and right upper extremity (shoulder); Held – a consequential injury was found. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant suffered an injury to her right shoulder as a result of lifting in the course of her employment including the repetitive lifting of a roller door. 2. The applicant suffered a frank injury to her right shoulder on 6 May 2020 when lifting a roller door at the first respondent’s premises. 3. The applicant has suffered consequential injury to her left shoulder as a result of reliance on her left shoulder following the injury to her right shoulder. The Commission Orders: 4. There will be an award for the applicant for an injury sustained to her right shoulder as a result of the nature and conditions of her employment and a frank injury sustained on 5. There will be an award for the applicant for an injury sustained to her left shoulder as a consequence of reliance on her left shoulder following the injury to her right shoulder, including payment of medical expenses pursuant to s 60 of the Workers Compensation Act 1987. 6. The applicant’s lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: (a) Date of injury: 6 May 2020 (deemed); (b) Body system: right upper extremity (shoulder) and left upper extremity (shoulder); (c) Method of assessment: whole person impairment, and (d) Documents to be referred: Application to Resolve a Dispute and attachments, Reply and attachments and the history only contained in the report of Dr Waller dated 18 September 2023. |
STATEMENT OF REASONS
BACKGROUND
Mrs Isaac (the applicant) was employed by the first respondent as a retail store manager on a full-time basis from 2008. She alleges that was injured by the nature and conditions of her employment and she also sustained an injury to her right shoulder on 6 May 2020. She alleges that she afterwards compensated for her right shoulder by using her left shoulder and consequently developed an injury to her left shoulder.
MATTERS IN DISPUTE
The following issues were in dispute:
(a) a preliminary issue as to whether the first respondent could rely on the reports of two Independent Medical Assessors (IMEs), Dr Waller and Dr Powell;
(b) the causation of the applicant’s injury to her right shoulder;
(c) whether the applicant’s left shoulder was injured by overuse, as a consequence of the injury to her right shoulder, and
(d) referral to a Medical Assessor for assessment of whole person impairment arising from injury to the applicant’s left and/or right shoulder.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
There was no oral 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;
(b) Reply to Application to Resolve a Dispute (Reply) and attached documents, and
(c) the history only contained in the report of Dr Waller dated 18 September 2023 and supplied to the Commission by correspondence dated 7 November 2023.
The applicant’s submissions
The applicant provided a statement.[1] She outlined her duties as:
(a) ensuring customers were provided with good service;
(b) stocking and restocking merchandise;
(c) undertaking inventory and orders;
(d) monitoring sales, and
(e) performing general duties incidental to working as a retail store manager.[2]
[1] ARD page 1.
[2] ARD page 1 paragraph 9.
The applicant performed the following work in the course of her duties:
“The nature of my duties as a Retail Store Manager involved maintaining constant tension in my bilateral shoulders by unpacking and carrying heavy products to put on display. I would be required to unload boxes of linen and blankets weighing approximately 30kg each from the delivery trucks. My shoulders always felt strained and tired after unloading and carrying the boxes into the store.”[3]
[3] ARD page 2 paragraph 11.
In relation to the roller door the applicant gave the following evidence:
“12. In or around December 2019, the security roller door at the front of our store broke and I was required to manually raise the door with great difficulty. I reported the issue to the owner of the store but the door was never repaired. As a result, I was raising a heavy door twice a day everyday as I was responsible for the opening and closing of the store. I frequently asked a male worker from the neighbouring store to help me as it was so heavy, and he would comment that this should not be my job to complete as it was so strenuous. However, I was often forced to lift the door by myself if there was no one nearby to help me. This movement significantly strained during this period her evidence is that she began to rely solely on her left arm to handle and carry objects although her left shoulder would feel tired at the end of the day the pain in her right shoulder remained comparatively worse and she focused on treating this injury my right shoulder but I continued to it as I had no other choice.
13. These repetitive movements placed excessive strain and tension on my right shoulder. Over the course of approximately six months, I experienced pain in my right shoulder.
14. On or about 6 May 2020, I was lifting the roller door when I felt a sudden onset of pain in my right shoulder which concerned me. Sharp, shooting pains began to strike my right shoulder. I reported my injury to the owner of the store and went to see my local GP.”[4]
[4] ARD page 2 paragraph 12,13 and 14.
The applicant outlined her treatment. She has resisted surgical intervention, having decided that she would not have surgery until it was the last resort. She consulted Dr Kodsi, Dr Dave, Dr Kodsi, a pain specialist, and had physiotherapy to strengthen the muscles of her right shoulder. She did not experience long-term relief. During this period she stated that she began to rely on her left arm to handle and carry objects. The left shoulder was tired at the end of the day but the pain in her right shoulder was comparatively worse. She focused on treating this injury:[5]
“Throughout September 2020 to January 2021, I continued to attend physiotherapy and manage the pain in my right shoulder. However, the range of movement in my right shoulder remained restricted and I struggled to raise my right arm over shoulder height to hang my laundry or reach for the top shelf. I also became very protective of my right shoulder as I did not want to aggravate my pain or cause a further injury. As a result, I remained dependent on my left shoulder to reach for objects, put away groceries and open doors. This placed a significant strain on my left shoulder over time and I began to experience dull aches in my left shoulder after a long day of use.”[6]
[5] ARD page 4 paragraph 22.
[6] ARD page 4 paragraph 25.
The first respondent’s submissions
The first respondent identified and addressed two predominant issues, the nature and condition claim and the alleged consequential injury to the left shoulder. The first respondent’s counsel sought leave, which was granted, to amend the Reply to place in contention the notice given regarding the nature and conditions claim.
The first respondent referred the Commission to the delay of two years between the frank injury and the complaint of symptoms in the left shoulder in April 2022. The applicant did not complain to her general practitioner of symptoms in her left shoulder prior to that date. The first respondent submitted that the Commission would not be convinced that it was likely that the applicant’s present symptoms in the left shoulder are related to the injury to her right shoulder. Rather, that it has resulted from her age and the natural progression of an age-related deterioration to an underlying condition.
The first respondent submitted that if the applicant’s left shoulder symptoms arose from over-use of the right shoulder, it was more likely than not that they would have manifested earlier. Two years was an unlikely scenario.
CONSIDERATION
The preliminary issue
The first respondent sought to tender an IME report from Dr Waller dated 18 September 2023 in addition to the existing report from Dr Powell dated 2 March 2022 which was in the attachments to the Reply.[7] The report from Dr Waller had not reached the Commission’s file but was emailed to the registry. The applicant objected to the first respondent tendering both reports, relying upon the restriction in the regulations set out below. The applicant did not raise any issue as to late service but required the first respondent to elect which report it relied upon.
[7] Reply page 25.
The first respondent submitted that it was entitled to an additional IME because the applicant had not claimed nature and conditions of employment in its original claim but had relied upon a frank injury until the telephone conference when the nature and conditions claim was first raised. It was not possible at that stage to arrange a re-examination with Dr Powell. This was why Dr Waller had to be qualified.
Because there were two claims, the frank injury on 6 May 2020 and a nature and conditions claim, the first respondent’s counsel argued that first respondent was entitled to rely on two IMEs in the same specialty to answer the two separate allegations of injury.
The regulations governing the admission of IME reports are set out below:
“44 Restrictions on number of medical reports that can be admitted
(1) In any proceedings on a claim or a work injury damages threshold dispute in relation to an injured worker, only one forensic medical report may be admitted on behalf of a party to proceedings.
(2) A report referred to in subclause (1) must be from a specialist medical practitioner with qualifications relevant to the treatment of the injured worker’s injury.
(3) Where the injury has involved treatment by more than one specialist medical practitioner, with different qualifications, then an additional forensic medical report may be admitted from a medical practitioner with qualifications in that specialty.
4) In this clause—
forensic medical report, in relation to a claim or dispute—
(a) means a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute, and
(b) includes a medical report provided by a specialist medical practitioner in respect of an examination of the injured worker pursuant to section 119 of the 1998 Act, and
(c) does not include a report from a specialist medical practitioner who has not treated the worker and that has been obtained for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of another claim or dispute.
45 Supplementary reports admissible
(1) Despite clauses 44 and 46, a medical report other than the original report (a supplementary report) may be admitted if—
(a) it has the purpose of clarifying the original report, for example, where it can be shown that there has been some omission in relation to the material originally provided that could lead to an opinion in the original report being expressed on the basis of inaccurate or incomplete information and it does not go outside the parameters of the original report, but merely confirms, modifies or retracts an opinion expressed in the original report, or
(b) it has the purpose of updating the original report by confirming, modifying or retracting an opinion expressed in the original report, or
(c) it has the purpose of addressing issues omitted from the original report, or
(d) it has the purpose of addressing an opinion in the other party’s medical report.
(2) A supplementary report can be provided as an addendum to the original report and in any such case the original report together with that addendum constitute the report referred to in clauses 44 and 46.
(3) A supplementary report must have been provided by the medical practitioner who provided the original report except when the medical practitioner has ceased (permanently or temporarily) to practise in the specialty concerned, in which case the supplementary report must be provided by another medical practitioner of the same specialty.”
I am not persuaded that there is any opportunity to expand the number IME
reports able to be presented in the one specialty as suggested by counsel for the first respondent. Compliance with the regulations is mandatory. Consent is not relevant.
Dr Waller’s report does not qualify for an exception as a supplementary report.
I have therefore determined in accordance with the election of the first respondent that the report of Dr Powell will be referred to the Medical Assessor in totality but that only the history in the report of Dr Waller will be referred.
The first respondent submitted that the application had no standing in relation to the nature and conditions claim because it was not particularised in the ARD.
Counsel for the applicant submitted that the report of Dr Bodel particularising in the nature and conditions claim was attached and served with the claim and that that service was sufficient notice of the nature and conditions claim.
Counsel for the first respondent countered that a claims officer could not be expected to identify the nature and conditions claim by having the report which identified it attached and served.
The Commission is not a court of strict pleadings.[8] I am satisfied that provision of the report was sufficient service of the nature and conditions claim for the purposes of the Workers Compensation Act 1987 (the 1987 Act). The insurer had had the relevant report for some time and delayed in updating Dr Powell’s report. A claims officer is not a filing clerk, a mere cypher. He/she has obligations. Contrary to the submission of the first respondent I believe a claims officer is expected to read the material attached to a claim and identify those issues relevant to the claim and is, as a result, on notice of the matters raised in the medical reports served.
[8] Trustees of the Roman Catholic Church for the Diocese Parramatta v Barnes [2015].That is not to say that it would not have been better professional practice by the applicant’s solicitor to particularise the heads of claim rather than relying upon the provision of the attached medical report.
The substantive issue
It is important to note that the applicant suffered a full thickness tear of the supra-spinatis tendon in her right shoulder in the frank injury to the right shoulder, liability for which has been accepted. This is not a case limited to an aggravation of pre-existing age-related changes.
The applicant provided a provided an initial[9] and supplementary[10] report from Dr James Bodel, orthopaedic surgeon. Concerning the applicant’s history of injury Dr Bodel took a history of problems lifting the front security roller door for some months prior to a frank injury on 6 May 2020. He also took a history outlining the nature of her work as being quite heavy, involving unpacking product and putting it on display as well as merchandising the entire store. He noted that she had had a subsequent gradual onset of left shoulder girdle pain, not as severe as the right shoulder. He found that her injuries were caused by the nature and conditions of her work, in particular trying to open the malfunctioning roller door at her workplace over a period of months leading up to 6 May 2020 when she sustained a frank injury. He considered that it was probable that her injuries over time aggravated, accelerated, exacerbated or caused to deteriorate an underlying disease being a rotator cuff pathology.
[9] 28 September 2021 ARD page 36.
[10] 16 November 2022 ARD page 44.
Dr Powell, orthopaedic surgeon, provided a report[11] setting his findings and conclusions:
[11] Reply page 25 dated 2 March 2022.
“HISTORY OF INJURY
Ms Isaac informed me that she commenced employment with Manchester & More as a Retail Store Manager in the Mount Druitt Westfield shopping centre in 2007. She worked in a
permanent part time capacity for two years before moving into a full time role.
She sustained an injury to her right shoulder in a workplace incident on 6 May 2020. One of her jobs involved opening the shop up in the mornings five to six times a week. This required her to lift a roller shutter door at the front of the door. She indicated they had been having problems with the shutter for approximately six months prior to the incident. On the day in question, she recalled lifting the shutter and feeling a sudden onset of pain over the lateral aspect of the right shoulder extending anteriorly into the upper arm along the line of the biceps.…
CURRENT SYMPTOMS
Ms Isaac remains symptomatic in relation to the right shoulder. She reports intermittent sharp pain over the anterosuperior aspect of the shoulder which extends distally into the upper arm along the line of the biceps. It occurs on a daily basis. She prefers not to sleep on that side.
She does not complain of any stiffness or restriction in range of motion. She is aware of
subjective loss of strength in the right arm. She reports intermittent numbness involving both hands in a global fashion. In more recent times, she has also complained of the development of some left-sided anterosuperior shoulder pain without any specific precipitating accident.…
DIAGNOSIS
Ms Isaac is a 59-year-old right-hand-dominant female who sustained an injury to her right shoulder in a workplace incident on 6 May 2020 whilst in the employment of Manchester & More as a Retail Store Manager at Mount Druitt Westfield. The available evidence indicates this most likely represented a muscular injury involving the right rotator cuff. She has been managed conservatively. Her symptoms have improved though are not completely resolved.
Today’s clinical examination was characterised by some minor restriction in range of motion but no other significant abnormalities. Examination of the left shoulder was unremarkable.…
There is no history of any specific injury to the left shoulder. The left shoulder symptoms developed in an insidious fashion. There was no specific precipitating incident. The clinical examination today was unremarkable. Her symptoms developed whilst she was on light duties and performing normal physiological activities. On that basis, I do not believe this would be considered a consequential injury.
…
Based on my examination, I believe that Ms Isaac has reached a state of maximum
medical improvement.…
a whole person impairment using Table 16-3 giving a 2% WPI.”
I am satisfied that the applicant developed left shoulder symptoms over time after the injury to her right shoulder. This was not an immediate occurrence. It is arguable that, had the applicant been able to face surgical intervention, she might have had a better recovery in her right shoulder and not developed left shoulder symptomatology. However, the election of surgical intervention is a matter for the applicant. What has to be determined by the Commission is whether the continuation of her right shoulder symptomatology with unpredictable shooting pains occurring when lifting and undertaking domestic tasks using her right shoulder, caused her to rely on her left shoulder and develop pain. I am satisfied that it did.
There is a clear reference to left shoulder pain on 21 April 2022.[12] I am not persuaded to any adverse conclusion regarding the applicant’s credibility because she did not develop left shoulder pain earlier, or mention it more often. It was a gradual onset. I have concluded that the gap in time between her right shoulder injury and the onset of left shoulder pain was reasonable in the circumstances.
[12] ARD page 103.
I prefer the findings and opinion of Dr Bodel as to whole person impairment and the causative involvement of the left shoulder.
I am satisfied and find that the applicant suffered:
(a) an injury to her right shoulder as a result of the lifting in the course of her employment including the repetitive lifting of the roller door;
(b) a frank injury to her right shoulder on 6 May 2020 when lifting a roller door at the first respondent’s premises, and has suffered
(c) a consequential injury to her left shoulder as a result of reliance on her left shoulder following the injury to her right shoulder.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
NSWWCCPD 35 at [ 54].
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