Jenner v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 225
•24 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Jenner v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 225 |
PARTIES: | Jenner, Rhonda v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/137 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 24 December 2014 |
HEARING DATES: | 22 July 2013 and 17 March 2014 |
MEMBER: | Industrial Commissioner Black |
ORDERS : | 1. The appeal is dismissed; 2. The regulator's decision of 28 March 2013 is confirmed; 3. The matter of costs is reserved. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s32, s550 |
| APPEARANCES: | Mr J. Dwyer, Counsel instructed by Sciacca's Lawyers for the Appellant |
Decision
Introduction
Rhonda Jenner ("the appellant") appeals a decision of the Review Unit of the Workers' Compensation Regulator ("the regulator") to reject her application for workers' compensation.
The appellant originally lodged her application for compensation with WOW Care ("the insurer") on 9 October 2012. On her claim form she referred to the injury as a painful left shoulder, caused over a period of time in her capacity as a supervisor and check-out operator for Woolworths Limited. She said that she first experienced symptoms about four months prior to the date of lodgment of the claim. The appellant obtained a medical certificate from Dr Gray on 8 October 2012 which recorded the injury as being an "overuse syndrome of left shoulder ".
The insurer rejected the appellant's application for workers' compensation on 27 November 2012. On 28 February 2013, the appellant asked the regulator to review the insurer's decision. On 28 March 2013, the regulator confirmed the insurer's decision that the claim was one for rejection. The appellant now appeals this decision to the Commission pursuant to s. 550 of the Worker's Compensation and Rehabilitation Act 2003 ("the Act").
Issue for Determination
The issue for determination in this appeal is whether the worker suffered an injury arising out of, or in the course of, her employment if her employment is a significant contributing factor. Section 32 of the Act relevantly provides as follows:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
Nature of the Appeal
The appeal to the Commission is by way of a hearing de novo. To succeed with her appeal, the appellant must establish on the balance of probabilities that she did sustain an injury to her left shoulder and that her duties as a supervisor and check-out operator over a period of time were a significant contributing factor to the injury.
Jurisdictional Documents
The regulator tendered the following jurisdictional documents [Exhibit 1]:
· WOW Care Queensland Application for Compensation dated 9 October 2012
· WOW Care Queensland Reasons for Decision dated 27 November 2012;
· Q-COMP (the regulator) Application for Claim Review dated 27 February 2013; and
· Q-COMP Review Unit (the regulator) Decision dated 28 March 2013
Evidence
During the course of the proceedings, evidence was provided by four witnesses. The witnesses for the appellant were as follows:
·Rhonda Jenner
·Dr Glenn Davies
·Dr Allen Gray
The witnesses for the Regulator were as follows:
·Dr Anthony Keays
The Appellant's Work
At the time of lodgment of her workers' compensation claim the appellant had been employed by Woolworths for approximately 19 years. She commenced employment with the company at its Margate store in February 1994. On the information provided, she subsequently worked at the Kippa Ring store before transferring to the Currimundi store around 2004. She had worked at the Currimundi store for about eight years before experiencing left shoulder pain in April 2012.
The appellant started work with Woolworths as a casual employee and progressed to full-time employment a month later. She also worked on a part-time basis during her period of employment. This is made clear in the appellant's evidence and is also recorded on her workers' compensation claim form (Exhibit 1) where she said that at the time of her injury she was employed on a part-time basis. It appeared from the history provided to Dr Keays that the appellant had worked on a part-time basis at the Currimundi store since about 2006, that she worked on average about 25 hours a week, and that she was employed in the capacity of a service supervisor.
From what I can discern from the evidence, since 2006 the appellant had been working a nine day fortnight. She worked 20 hours one week and 29 hours the following week. While the evidence is lacking precision or clarity it appeared that in each fortnightly period the appellant would work five shifts of five hours duration as a check out operator and four shifts as a supervisor. On some shifts she worked longer hours.
The evidence did not clearly delineate between stores in outlining the duties performed by the appellant. In some cases it was made clear that particular tasks were only performed at one store and not all stores. The appellant worked at the Margate store for about seven and a half years. At this store she worked mainly in the "variety" section but did assist on the check-outs during busy periods. She worked on average a few hours a week on the check-outs. In terms of her work in the variety section the appellant gave the following evidence at T2-4:
"All right. And when you say the variety section, what sort of products and stock did that involve?---I was in the garden section where I was having to unload the pallets as they come in on to the trolleys and then push them out on to the floor and actually fill the shelves up with the products, with the gardening, and then what wouldn't fit in the shelves I had to actually put on the top of the capping."
The appellant subsequently worked at the Kippa Ring store for about three years. Her evidence about this period of service was given at T2-16 and T2-17. She said she was a service supervisor at this store. This work involved supervising the check-outs, replenishing grocery bag stocks at check-outs, replenishing impulse bars and drink fridges, and returning stock left behind by customers to the shelves. The impulse bars were typically stocked with chocolates, sweets and magazines. Some aspects of the work performed at Kippa Ring involved above shoulder activity. This activity could be associated with moving boxes of plastic bags or cartons of soft drinks out of storage, placing items of stock on shelves, or placing soft drinks in fridges.
The appellant said that soft drinks or cartons of soft drinks would be moved out of storage in mobile cage and pushed to the fridge location. From this position the drinks were loaded into the fridges. The process would also involve reconfiguring the drinks in the fridge. She would also pick up stock that was left behind by customers at check-outs and return this stock to the shelves. Boxes of plastic bags would be moved from storage shelves, placed on a trolley, and then pushed to the check-out area where the boxes were opened and the bags distributed.
When the appellant first commenced work in the Currimundi store (T2-5 to T2-7) she was allocated to the produce section. She said that during this period her job was to break down pallets of fruit and vegetables and stack the produce on the display areas of the store. While doing this work, if check-outs were busy, she would be required to perform the work of a check-out operator. She said this usually involved about 10 hours work on the check-outs each week.
The appellant said that the heaviest items that she had to handle during her employment with Woolworths were bags of soil, cartons of soft drinks or boxes of plastic bags.
The Appellant's Left Shoulder Condition
The appellant first noticed pain in her left shoulder while at work sometime in the morning on a Sunday in April 2012. She was rostered to work a seven hour shift on this day. She said that she had arrived at work at 8.30am in preparation for a 9.00am store opening.
In terms of preparations for opening, her main concern on commencement was to put money into the check-out tills. She then took mats which were stored in a shopping trolley out of the trolley and placed them on the floor in the check-out aisles and at the entrance of the store; she also distributed check-out bags to the extent necessary and replenished the soft drink fridges and ensured that the stock in the fridges was neatly configured.
The appellant could not attribute the onset of pain in her left shoulder to any specific event. She said that while she was standing at the service desk she noticed or realized that her shoulder was sore. She was not sure what she was doing immediately prior to the onset of pain. She said that she was probably sorting out the items of stock that were left at the check-outs by customers the previous day which had been stored in a trolley. She sorted the stock into baskets and placed the baskets behind the service desk. Alternatively, she may have been engaged in cleaning duties including wiping down the check-outs or cleaning the benches and the glass around the service desk.
The appellant said that she applied some dencorub to the shoulder to try to relieve the pain or discomfort. Despite the pain or inconvenience she continued working until July or August 2012 when she informed her employer of her shoulder condition. Despite this notification she said that she continued with normal work until sometime in October 2012 when she was re-assigned to light duties. She remained on light duties until April 2013 when her employer informed her that light duties were no longer available.
The medical records of the appellant's consultations with doctors at the Caloundra Bulk Billing Surgery are in the evidence as Exhibit 4. These records were referred to in the evidence given by Dr Gray. The records relevantly disclosed that the appellant first reported left shoulder pain in a consultation on 26 July 2012. She then attended at the surgery in respect to her shoulder condition on 16 August 2012, 21 August 2012, and 28 August 2012. At her next consultation on 8 October 2012 Dr Gray issued her with a workers' compensation certificate. The next day (9 October 2012) she lodged a workers' compensation claim form which is in the evidence as Exhibit 1. In the form the appellant attributed the cause of her injury to continual wear on her shoulder, scanning and lifting. The workers' compensation medical certificate entered a diagnosis of "overuse syndrome" of the left shoulder. The worker's stated cause of injury on the certificate was "repetitive use of shoulder after 20 years on check outs".
On 28 August 2012 Dr Gray requested an ultra sound of the appellant's left shoulder. The ultra sound showed features of bursitis which led Dr Gray to order a steroid injection. On 8 October 2012 a repeat injection was ordered. An X-ray of the left shoulder had been requested following the 16 August 2012 consultation. It was Dr Gray's opinion, based on the radiological evidence that the appellant was suffering from chronic bursitis of the left shoulder. Dr Gray said that his conclusion was consistent with the diagnosis entered by Dr Davies of "impingement syndrome".
The appellant was examined by Dr Davies, consultant orthopaedic surgeon, on 14 June 2013. In his report which is in the evidence as Exhibit 2, he diagnosed the appellant with "impingement syndrome – left shoulder, with an underlying SLAP tear and probable degenerative posterior labral tear". In arriving at his diagnosis Dr Davies reviewed an X-ray of the appellant's cervical spine and left shoulder taken on 19 November 2012 and an Ultrasound of the left shoulder taken on 30 November 2012. Dr Davies expressed the opinion that the appellant's impingement was due to "repetitive lifting and pushing". He considered that that the appellant's employment was a significant contributing factor to the development of the injury.
The appellant was assessed by Dr Keays, an orthopaedic surgeon, on 19 November 2012. In the preparation of his report Dr Keays had regard to an ultrasound of the appellant's left shoulder dated 27 August 2012, an ultrasound of her neck dated 17 October 2012, an X-ray of her cervical spine and an X-ray of her left shoulder. His report is in the evidence as Exhibit 3. Dr Keays accepted that the radiological evidence established that the appellant was suffering from bursitis in the left shoulder.
Dr Davies agreed in his evidence that the presence of bursitis was consistent with an impingement. He said that it was almost universal that someone who has an impingement will have bursitis. He said that the two main causes of bursitis were repetitive use and a traumatic event. He also said that some inflammatory conditions such as rheumatoid arthritis can lead to bursitis. Dr Davies was not asked to express an opinion on whether bursitis might be caused by degenerative factors. The matter was however canvassed in the evidence of Dr Keays.
It was the effect of Dr Keays's evidence that bursitis might typically arise in the following circumstances:
(i) Where trauma to the area of the bursar had occurred;
(ii) Where an inflammatory condition was present;
(iii) Where there has been repetitive use in the area of the joint where the bursar is located;
(iv) As a result of degenerative factors.
However Dr Keays concluded that repetitive tasks at work were not a significant contributing factor to the appellant's left shoulder condition. The essence of the conclusion reached is set out in his evidence at T2-50:
"Right. And as part of taking a history from her, would you have specifically asked such a question in respect to the - the mechanisms of tasks associated with jobs she was doing at Woolworths, whether they were below shoulder or over shoulder tasks?---Well, as I have said, they did not seem to expose her to overhead or shoulder intensive - by shoulder intensive activities, sustained or awkward postures with the arm in an elevated position over - over 60 or 70 degrees of abduction. In other words, with your hand above your head.
Right. Okay. And as part of recording a history, is it your practice to gain from the patient the most fulsome history that you can from the individual?---Well, it is relevant in relation to your client because you're always balancing. If this is a constitutional problem which occurs in this age group or whether there has been significant exposure to something that might cause a problem or which, in her particular case, she could not recall and she stated that it was working for 19 years at Woolworths which was the cause of her problem without any specific work episode or injury that she could recall."
A number of matters were in contention in the medical evidence. These matters are discussed in the following paragraphs.
Inconsistent History
The reports of Dr Davies and Dr Keays, and the oral testimony of all three doctors, suggests that there were inconsistencies in the work-related history of appellant which was taken into account in arriving at their particular conclusion.
The key differences are significant. In regard to Dr Gray, Exhibit 5 suggests that he was under the impression that across the period of her employment with Woolworths the appellant was engaged exclusively in one of two activities – either check-out work or shelf stacking. However in the history provided to Dr Davies and recorded in his report, the appellant attributes the pain in her left shoulder to "doing repetitive cleaning, lifting and working at a Service Desk. She also worked intermittently on the check-out." In the report of Dr Keays the appellant provided a history that “she has worked as a service cashier at Woolworths at Currimunidi for the last 10 years” and that for the last six years she had averaged approximately 25 hours per week in her job as a service supervisor. The report also stated that the appellant attributed her pain to "repetitive scanning and lifting in her 19 years of employment with Woolworths".
Exhibit 5 comprised a medical certificate issued by Dr Gray on 24 April 2013 which referred to information given to him by the appellant during a consultation on that day. The certificate is expressed more in the form of a letter of support than by way of a clinical diagnosis. In summarised form, the certificate stated that during the appellant's period of employment with Woolworths she spent 10 years on check out duties and 10 years on shelf stacking duties. It then stated that the appellant worked on check-outs for five days a week and scanned 10,000 items each week. Further, when required to stack shelves the appellant worked for eight hours a day and for five days a week resulting in the appellant handling 16,000 items a week. The certificate indicated that shelf stacking often involved above the head lifting. The certificate concluded with the following:
"you do the maths and tell me wot (sic) causes bursitis and these figures are conservative. The human shoulder was not designed for this type of activity that equates to 13,000,000 repetitive unnatural movements over her working life. It (sic) not rocket science".
This description of duties is different to that provided by the appellant when giving her evidence in the proceedings. While acknowledging that her GP prepared the information in the form of a medical certificate, it is a concern that she endorsed the data as being representative of her work with Woolworths. Included in this observation is the consideration that for the immediately preceding six years of employment, the appellant worked only 25 hours a week and that her duties did not include any repetitive over the shoulder activities or shoulder intensive activities
Spontaneous Development of Shoulder Pain.
It was not in dispute that the appellant suffered a spontaneous onset of shoulder pain while at work. She did not give evidence to the effect that she had experienced shoulder pain or discomfort prior to the particular Sunday in April 2012. The medical evidence was inconclusive however in assessing what implications, if any, the spontaneous development of shoulder pain had for the determination of the appeal. Dr Gray's view on the subject was given at T3-11:
"Is it – in your clinical experience, will a bursitis develop spontaneously?‑‑‑No. There's usually some aggravating factor that brings it on. Something's got to inflame the bursa. They usually don't happen spontaneously.
And – beg your pardon – in [indistinct] in terms of something's got to inflame the bursa, in terms of repetitive work, is that something that would typically inflame the bursa?‑‑‑Yeah. That can, or it can aggravate it. Yeah."
Dr Davies did not necessarily accept that that the condition of impingement could occur spontaneously. He said that the common presentation involved "a small degree of background ache and discomfort and then all of a sudden they wake up and it's a lot worse than what they can recall." (T2-40).
Dr Keays said in his evidence at T2-55 that the condition can occur over a period of time and "sometimes you are not aware of when it started." He also agreed that the condition could go unnoticed before suddenly emerging as symptomatic.
In the context of this evidence I decline to conclude that the spontaneous development of shoulder pain is a determinative factor in the proceedings.
Impartiality of Expert Medical Evidence
Dr Gray questioned the objectivity of the conclusions reached by both Dr Keays and Dr Davies on the basis that Dr Keays report had been commissioned by the self-insurer and Dr Davies report had been commissioned by the appellant's solicitors. Given his support for the appellant his main attack was on the evidence of Dr Keays which he criticised on the following grounds:
(i) That Dr Keays was biased given that the assessment was not commissioned independently in that it was commissioned by the self- insurer;
(ii) That Dr Keays's conclusion was based in part on a view that the pain being experienced by the appellant was caused by a neck injury;
(iii) That Dr Keays did not have access to the radiological evidence that Dr Gray relied on including X-rays and ultrasounds which showed a lesion in the appellant's shoulder;
It is difficult to accept Dr Gray's criticism. Not only would he, as a general practitioner, be expected to defer to the opinion of a specialist, but it also appeared that he made his criticisms without reading the report of Dr Keays, and to the extent that it is relevant, nor the report of Dr Davies. It is clear from a reading of Dr Keays report that Dr Gray's conclusions about the report were ill-informed. Dr Keays's opinion does include reference to neck pain but this is in response to the history provided by the appellant of neck pain resulting from physiotherapy sessions and from her suitable duties program where the appellant was prevented from using her left arm. Dr Keays also considers in his report an ultrasound of the appellant's neck taken on 17 October 2012 and which was commissioned by Dr Gray. Finally, the operative part of Dr Keays's report is set out on pages 5 to 7 where he answers specific questions. I do not find any support for Dr Gray's assertions in the expression of the answers provided.
Cause of the Bursitis
A matter in contention in the proceedings was whether the appellant's bursitis had occurred naturally through degeneration. The matter was not specifically addressed in either the evidence of Dr Gray or Dr Davies but it was canvassed with Dr Keays. In this regard Dr Keays gave the following evidence at T2-52:
"At that age group, degeneration occurs normally, so with the degenerative process, the tendon gets swollen and gets inflamed and can cause a type of impingement. So the causes of impingement are two in nature. They are either extrinsic in which there's pressure on the tendon or the bursar from a hook of acromion or a spike of bone from the AC joint or it's intrinsic in which the tendon gets swollen by the normal degenerative process that occurs with the passage of age.
Well, do I understand you to be saying that a bursitis may develop entirely
spontaneously, as a result of a degenerative process?---That's what I'm saying, that bursitis is a reflection of underlying degenerative disease."
Impingement Test
A conflict arose in the two specialist reports in respect to the results of an impingement test which both surgeons applied in their examination of the appellant. Dr Davies reported that the appellant had "quite a positive impingement test" while Dr Keays found that the impingement test of the left shoulder was negative. A discussion emerged about whether the different test results could be explained by the fact that the appellant had received two cortisone injections prior to her examination by Dr Keays on 19 November 2012. The medical notes of Dr Gray's practice (Exhibit 5) suggest that the appellant had a second cortisone injection to her left shoulder on either 8 October 2012 or 19 October 2012. In his oral testimony Dr Davies said that the cortisone injection may explain why the appellant had a negative impingement test when she attended on Dr Keays. Dr Keays also accepted that a cortisone injection given on 19 October 2012 could have had the effect of reducing inflammation and could produce a negative impingement test about a month after the injection.
Despite the acceptance of both Dr Davies and Dr Keays about the possible beneficial effect of a cortisone injection, such a beneficial effect was not evident from a reading of either of their reports. In his report Dr Davies said that the two cortisone injections gave the appellant "minimal short term relief". Dr Keays's report states at page 2 that the appellant had a "hydrocortisone injection to the left shoulder on 07.09.12 with no benefit". The report also says that the appellant had a further hydrocortisone injection to the left shoulder on 19 October 2012 "with no benefit".
The negative test was obviously significant and while both doctors accepted that a beneficial effect of cortisone injections could explain a negative test, both reports disclosed that the appellant reported that the cortisone injections did not beneficially affect her. Despite the negative test however the fact that the appellant is suffering from bursitis is not in dispute.
Above the Shoulder or Overhead Activities
A matter for consideration in the medical evidence was whether engagement in repetitive over the shoulder activities were a necessary pre-condition to the development of bursitis or an impingement condition. Dr Davies's evidence was to the effect that overhead work was more likely to cause the condition but that it was not a necessary pre-condition and that it was common for the condition to arise in circumstances where overhead activity was not a factor.
In his evidence at T3-10, Dr Gray mentioned the impact of above shoulder activity on the development of bursitis:
"‑ ‑ ‑ and in terms of those types of duties – by that, I mean the restocking of the shelves and the pulling of the trolley and so forth, are they the types of duties, or are they the type – would they be the types of duties that might contribute to the development of the bursitis in the left shoulder?‑‑‑Well, you know, anything lifting her arm above a 90-degree angle from her body, I think, is going to aggravate the bursitis. If she’s got to stack shelves which are above the level of her shoulder, I – I would think would – would aggravate her bursitis, yeah."
It was Dr Keays's evidence that the critical factor was that of repetitive use in an awkward or sustained position. His evidence at T2-53 is reproduced hereunder:
"Would you agree, doctor, that a person - I'm not talking about Ms Jenner, I'm talking about in your clinical experience - that a person can develop bursitis as a result of overuse of the particular joint or limb?---Yes, but I'm being specific in saying that if they are exposed to awkward and sustained postures, but working in a supervisory capacity or below shoulder activities doesn't fit into that group. All right?---So there are certain occupations that are at risk because of shoulder intensive activities and these include farm workers, forestry workers, fishermen and people whose arm is elevated and they are at risk and it is documented that they do have a high incidence of rotator cuff pathology.
Would you agree there is a level of risk associated with the work performed by
check-out operators, in that they - - -?---Well, I'm unconvinced because it is below shoulder activity. It is not in a sustained or awkward position and her check-out activities were, she said 10 per cent of the time and she was doing supervisory work. She had exposure to overhead activities in the '90s when shifting pools and chemicals in Sandgate, but at that stage, didn't complain of any pain or seek treatment for shoulder pain. So the only time there was any exposure to overhead activities was when she worked at Sandgate, but there were no symptoms or no need for medical treatment which is why I made that conclusion."
Dr Keays's further evidence on the subject was recorded at T2-50:
"… I questioned her specifically for so called shoulder intensive activities, which means working in sustained and awkward postures with overhead positions and I did not obtain a history that she had done that. She said that possibly in the '90s, when she was working at Sandgate, she did some overhead lifting, but after that, she didn't have exposure to so called shoulder intensive activities."
Reasoning
The failure of the appellant to attribute the injury to any specific work event and the inconsistency in the history provided to the relevant medical practitioners has not assisted the appellant's cause. The task of reconciling the medical evidence has been complicated by the differences in the history relied on in each instance.
It seems to me to be reasonably clear that once Dr Keays's report was relied on by both the self-insurer and the regulator to reject the appellant's claim for compensation, the appellant's history has been differently expressed. While I do not conclude that the appellant has set out to re-write history, there has been a tendency to draw attention to particular work activities and to apportion a different emphasis. Given that the history given to Dr Keays was recorded on 19 November 2012 and significantly before the history given to Dr Davies (14 June 2013), and given that Dr Keays's opinion was given prior to the decision of the insurer on the appellant's claim, in the event of any significant difference, I prefer to attach the greater weight to the history provided to Dr Keays.
I am not inclined to attach significant weight to the evidence of Dr Gray. He was clearly advocating in support of the appellant, his criticism of the clinical reasoning of Dr Keays was flawed, and his understanding of the nature of the work performed by the appellant was less than optimum, and wrong in some respects.
I prefer the evidence of Dr Keays over the evidence of Dr Davies. Dr Keays's report was more comprehensive, covered more factors, and had the advantage of a more complete and accurate history from the appellant. Dr Davies's report was limited to a brief citation of the history provided by the appellant, a physical examination, and a conclusion that was to the effect that the appellant's employment was a significant contributing factor to the injury. While Dr Davies's report was completed after Dr Keays's report it did not address the issue of degeneration and some of the other factors that were dealt with in Dr Keays's report and which were relevant to the decision to be made in these proceedings. Dr Davies report was less forensic in character. It was narrowly framed and generally proceeded on the basis that the appellant's work at Woolworths was the cause of her injury. On the evidence there was not a lot of rigour in the report when it came to exploring alternative causes for the appellant's left shoulder condition.
The evidence does not support a finding that the appellant was engaged in repetitive activity in respect to all of her normal tasks. An understanding of what is meant by the term "repetitive" in the current context is relevant. Logically the frequency with which tasks are undertaken is the immediate consideration. The clinical context in which the term is used is also relevant to comprehending its meaning. In this regard the evidence of Dr Keays is relevant where he refers to the significance of above shoulder activity, to shoulder intensive activity, and to the presence of awkward and sustained postures.
The only activity that involved repetitive activity in my view was the check-out function. In this regard I accept the evidence of Dr Keays that the check-out activity does not involved a "sustained or awkward" position and nor does it involve any above shoulder activity. It is primarily a below shoulder activity. Further it is not a task that involves shoulder intensive activity. It is also relevant that the repetitive use of the left arm is diminished by a rotation through left and right handed oriented registers. There was no particular evidence about the subject but I note that during her period of suitable duties when the appellant was precluded from using her left arm, she undertook check out duties for about 10 hours a week. Presumably during this period the appellant was scanning and handling items at the check-out using her right hand. Hence across the course of her employment with Woolworths an inference may be open that she alternated between left hand and right handed registers. Finally the appellant's predominant work on the check-outs was during five, five hour shifts across a 14 day period. To the extent that the work was continuous, it is limited by this factor.
In my view the evidence does not support a conclusion that the appellant was engaged in repetitive stacking of shelves. She was never engaged in the function in any continuous capacity and her involvement was limited and intermittent. Further above the shoulder activity in shelf stacking was limited to the upper levels of the shelves. I accept that if the appellant was employed by Woolworths as a shelf stacker and if this were her principal function, it would be correct to say that she was engaged in a repetitive task. But her involvement in the activity was intermittent – on my reading of the evidence something that she may have done about two or three times a day when she was on the service desk and for relatively short periods. Similarly the appellant was not repetitively engaged in handling boxes of plastic bags nor in handling cartons of soft drinks. Finally her work in lifting bags of soil appeared to be limited to her time at the Margate store some considerable time prior to her reporting symptoms.
Nor was there evidence of significant or repetitive heavy lifting. The appellant's claim that she lifted heavy items such as cartons of soft drink or boxes of plastic bags on a daily basis is not consistent with her evidence that she performed five out of nine shifts on check-outs. As I understood her evidence her involvement in other activities arose from her role as a check-out supervisor – an activity which occupied her for only four shifts a fortnight. Further, even when she was undertaking supervisory duties, and acknowledging that the evidence was lacking precision, I did not get the sense that the incidence of the heavy work on any one shift was high, perhaps two or three times a shift.
Conclusion
In all the circumstances of this case I am not prepared to enter a balance of probabilities finding that the appellant's employment with Woolworths was a significant contributing factor to her shoulder condition. The evidence does not establish the necessary association between the employment and the injury. While I accept that, in circumstances where the appellant first noticed the onset of shoulder pain while at work, employment may have provided the setting or the background for the injury, my evaluation of the nature of the work performed by the appellant, in conjunction with the preferred evidence of Dr Keays, leads me to conclude that the appellant has not satisfied the test of causation set out in section 32(1) of the Act.
The appeal is dismissed and I order accordingly.
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