John O'Donnell and K & S Freighters Pty Ltd
[2014] AATA 437
•3 July 2014
[2014] AATA 437
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/3679
Re
John O'Donnell
APPLICANT
And
K & S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr I Alexander, MemberDate 3 July 2014 Place Sydney The Tribunal affirms the decision under review.
.......[Sgd].................................................................
Ms N Isenberg, Senior Member
CATCHWORDS
WORKER’S COMPENSATION – entitlement to compensation for medical expenses and incapacity payments – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
CASES
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
REASONS FOR DECISION
Ms N Isenberg, Senior Member
Dr I Alexander, Member3 July 2014
The Applicant, John O’Donnell seeks review of reviewable decision dated 25 June 2012 which affirmed the determinations of:
·20 March 2012 that the Respondent had no present liability to pay compensation to the Applicant in accordance with sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (‘the SRC Act’) in respect of his "right shoulder, wrist, left leg and groin" condition sustained on 15 October 2009.
·18 April 2012 that in accordance with s 16 of the SRC Act the Respondent was not liable to pay compensation to the Applicant in respect of a C5/6 epidural steroid injection which has been requested in relation to his accepted condition of "injury to right shoulder, wrist, left leg and groin" sustained on 15 October 2009.
BACKGROUND
The Applicant is presently 53 years old and has been employed by the Respondent for some years as a Linehaul Driver which included yard hand/forklift driver duties.
On 15 October 2009 the applicant tripped on a piece of reinforced steel (‘the incident’). In the incident report of that date he recorded injuries to his “left leg, groin, right shoulder and right wrist.”
The Applicant lodged a compensation claim under SRC Act with the Respondent on 10 November 2009, claiming compensation for injuries to his left leg, left groin, right shoulder and right wrist.
By determination dated 1 December 2009 the Respondent accepted liability under s 14 of the SRC Act in respect of “injury to the right shoulder, wrist, left leg and groin.”
Section 16(1) of the SRC Act states:
(1) Where an employee suffers an injury, [the Respondent] is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as [the Respondent] determines is appropriate to that medical treatment.
Section 19 provides relevantly:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, ....
(2) Subject to this Part, [the Respondent] is liable to pay to the employee in respect of the injury, ... an amount of compensation worked out using the formula ...
ISSUES
The issues for determination are whether, as at 20 March 2012 and presently, the applicant is entitled to compensation for incapacity and for medical treatment expenses in respect of his 2009 workplace injury.
The Applicant’s Account of the Incident
In the incident report of 15 October 2009 the incident was described by the applicant as:
Crossing Breezeway going to see other forklift driver [name] walking in one direction, turned to walk the other direction and kicked a piece of rio [reinforced steel] sticking out of ground and tripped over, try to steady myself with left leg and fell over [i]njuring left leg, groin, right shoulder and right wrist.
In his workers’ compensation claim dated 10 November 2009, when asked to describe the cause of the claimed injuries, the Applicant stated:
Walking across [the] yard when I changed directions, kicked a piece of steel bar. Sticking out of ground tripped and fell over.
Tripped over steel bar protruding from ground.
Dr Maxwell recorded that, when he reviewed the Applicant on 16 May 2013 he reported that when he tripped on a steel reinforcing, he caught his left foot, fell forward, his right leg "let go" and he fell onto his right shoulder and arm and then did a somersault ending up on his back. This differed to his previous account to Dr Maxwell. He also did not report a ‘somersault’ to any of the other examiners.
In a statement provided to the Tribunal dated 15 November 2013 the applicant described the incident as follows:
My right foot struck a piece of reinforced steel one end of which was embedded in the ground and the other end pointing towards me. My right foot was momentarily caught on the steel. I started falling forward. As I did so, I put my left foot forward in an attempt to steady my fall. I put my right arm in front of me. By this time my right foot was stretched behind my body as I fell forward. Next, my right foot broke free from the reinforced steel and I was thrown forward to the ground. As I fell, I landed on my right shoulder and right ear and then landed on my back. I had a graze on my right hand and a graze on my ear. However, neither of them was bleeding profusely.
At the hearing the Applicant’s account was that he was briskly walking in the yard when his right foot got stuck. He threw his left leg out as far as he could and his body kept going forward. As his right foot was stuck, his left leg bent backwards. He was putting his right hand out when his right foot became unstuck and he somersaulted forward some five or six metres. His right arm collapsed and he came down on his right shoulder and he squashed his right ear and grazed his right wrist, or the back of his thumb. He landed on his back.
He described the accident as causing all his weight to be on his left leg which was right out in front and the leg “bent backwards”. He put out his right hand out to try and “pyramid” himself. He was falling sideways. His foot was up in the air he collapsed on his right shoulder. Before his hand hit the ground he was thrown “like an elastic band, like a catapult”, and his right arm collapsed, and he landed on his shoulder. He turned his head squashed his right ear and landed on his back. He did not know how long he remained on the ground or if he was knocked out. The Applicant claimed that he had explained it in exactly that way to every doctor he had seen. He denied he had used the turn of phrase “tripped” because he was “impaled” on the piece of steel.
When asked about pain at the time he said he had a stinging pain in the palm of his hand near his thumb and a stinging pain on his ear. In half an hour he had pain to his shoulder, left knee, and right wrist.
When it was pointed out to him that Dr Wong, his general practitioner, had recorded nothing in relation to his left leg he said the main focus had been on the shoulder because he was in so much pain. Unlike his groin and shoulder, there was no investigation in relation to his left leg. He said Dr Wong told him it was just strained, but it has never “come good” as the doctor had said it would.
He said he has had pain in his wrist the whole time.
The Shoulder Condition
The Applicant regarded this condition as having the major effect upon his ability to work.
The Applicant wrote in his statement that he consulted his GP Dr Wong later that day. By the time he saw the doctor, his worst symptoms were in his left side between his hip and groin. In addition, he had symptoms in his right shoulder and right wrist. In his evidence he said he was unable to move his arm at all and he was unable to lift it at all. By the time he got to Dr Wong he was able to move it a bit but he was unable to lift it up high.
After recovering from his rotator cuff repair surgery he said he had a very sharp pain right at the top of his shoulder, but that has gone, only returning when it is aggravated. He went on to describe the muscle at the top of his back being ‘inflamed’ and stiffening such that he becomes hunched over. He also described shooting pain down his arm into his thumb on a weekly basis which started when he first had rehabilitation, but it is his shoulder pain which is much worse.
Dr Wong, the Applicant’s GP
Dr Wong gave evidence. The Tribunal also had the benefit of Dr Wong’s clinical notes.
His notes for the Applicant’s attendance on the day of the incident record that the applicant had fallen over a steel “reinforcement bar”. He had injured his left knee and shoulder but had afterwards noticed left groin pain. There were no bruises or lacerations. The main complaint was in relation to the groin injury. The doctor agreed that if the Applicant, on the day of the incident, had made a ‘big fuss’ about pain in his right shoulder then he would definitely have documented it.
He said that the Applicant’s first complaint of neuropathic pain was on 15 February 2011 and that that was when he arranged a cervical x-ray.
As to the outcome following the Applicant’s steroid injection to his neck the doctor said the Applicant had reported a “70%” improvement, and that he was now able to sleep. He thought though that, even when the Applicant was experiencing the maximum benefit of the injection he was still unable to lift his arm above his shoulder, and referred to his entries on 10 April, 10May and 12 June 2012.
Dr Wong’s evidence was that he continues to treat the Applicant for shoulder and neck pain and that his neck pain fluctuates according to his work activities, for example, driving the forklift over bumps aggravates his neck, and would do so, irrespective of whether he had a shoulder injury.
Dr Hollands, Gastrointestinal, Hepatobiliary and Laparascopic Surgeon
Dr Wong referred the Applicant to Dr Hollands for investigation of his groin complaint following the incident.
In a letter to Dr Wong dated 22 October 09 Dr Hollands wrote that the Applicant’s predominant injuries were to his left knee and left shoulder. By the time Dr Hollands saw the Applicant his pain had improved and he had been back at work.
In his report of 30 November 2010 Dr Hollands reported that while the Applicant was making good recovery from his hernia operation, he was having problems mobilising his shoulder. He was concerned about him returning to normal duties in case his efforts to protect his shoulder exacerbated any problems with his groin.
Dr Duckworth, Shoulder and Elbow Surgeon
Dr Duckworth was not called to give evidence but his clinical notes were before the Tribunal. He had also reported to the Applicant’s GP, Dr Wong.
Dr Duckworth wrote to Dr Wong on 25 February 2010 advising that the Applicant presented with acute problem affecting his right shoulder with ongoing pain particularly around the biceps tendon and rotator cuff. An ultrasound of the shoulder was inconclusive and an x-ray was normal. He recommended an MRI scan, which was conducted on 3 March 2010.
On 3 March 2010 Dr Duckworth wrote to Dr Wong that the MRI showed an acute full thickness tear of the Applicant's rotator cuff. His biceps appeared to be intact. He wrote that the applicant was reporting ongoing pain, particularly at night and pain with use. He recommended an arthroscopy of the right shoulder and a mini-open rotator cuff repair. The operation report of 18 March 2010 noted that a good repair was achieved.
On 9 June 2010 Dr Duckworth reported to Dr Wong that the Applicant still had a lot of stiffness and wasting around the shoulder. He had recommended stretches, hydrotherapy and physiotherapy to increase the range of motion and strength.
Some five months following the rotator cuff repair, on 28 July 2010, Dr Duckworth reviewed the Applicant. He reported that he had done well in terms of repair and had no pain. There remained some ongoing stiffness related to surgery and he had developed capsulitis. There has been some improvement and he recommended ongoing stretches and hydrotherapy.
A couple of weeks later, on 9 August 2010, Dr Duckworth noted that he considered the Applicant to have permanent restrictions as a result of the injury. He considered, in respect of the Applicant’s right shoulder that he may always have difficulty with overhead use of his arm and heavy lifting as well as repetitive use of his arm out to the side. The long term prognosis was slightly guarded. He recommended continued physiotherapy and stretches, but considered the Applicant was still recovering well from the surgery and had no pain but some stiffness.
Following the seven month review Dr Duckworth wrote on 20 October 2010 that the Applicant was doing well, had good function with minimal pain, and reasonable strength. He considered that once the Applicant’s impending hernia surgery had been completed, he was happy for the applicant to return to normal duties from the point of view of his shoulder.
Dr Wong referred the Applicant back to Dr Duckworth following his attendance on 15 February 2011 with “right shoulder symptoms” (as well as hernia related symptoms), and noted he was experiencing a nerve-like pain down to his right thumb which was "getting worse". First mention of thumb
Dr Duckworth examined the Applicant on 22 February 2011 and questioned whether the Applicant's nerve-like symptoms were referred from his neck or connected with the shoulder injury.
In a report dated 4 July 2011, Dr Duckworth noted that the Applicant had undergone a rotator cuff repair which was successful in relieving a lot of pain but left him with some mild weakness and stiffness in shoulder. The Applicant still had limited range of movement in shoulder and pain overhead, due to the chronicity of his tear. He considered the Applicant’s shoulder would never be 100%, and he would have to remain on permanent restricted duties, avoiding a lot of overhead use and heavy lifting. When asked to confirm whether on balance of probabilities the Applicant's injury to the right shoulder and any ongoing incapacity were caused by the injury in the course of his employment on 15 October 2009, Dr Duckworth indicated that it was.
In his report dated 29 January 2013, Dr Duckworth referred to the Applicant's right shoulder stating he “...does have ongoing problems related to his rotator cuff tear and due to the fact that it is slightly thin. He will always have a permanent problem affecting his shoulder.” When asked to comment on the causal connection of the Applicant’s current right shoulder condition to the incident, Dr Duckworth stated that it was. When asked to comment about the Applicant's ongoing function of the right shoulder and incapacity he said “... he still has mild weakness and stiffness ... the shoulder often does not return to 100%. I believe that he will always have difficulty with overhead use of his right arm and heavy lifting.”
Dr Duckworth was not asked to provide an opinion in respect of medical treatment in respect of injuries to the right shoulder.
Dr Walker, Consultant Neurologist
Dr Walker reported on 28 March 2011 that nerve conduction studies demonstrate normal motor and sensory conduction. He was unsure as to the cause of the Applicant's symptoms, so referred him for an MRI to exclude radiculopathy. He indicated that he would have expected some sort of brachial plexus injury (from the incident) to have been present before the surgery rather than afterwards.
A cervical spine and chest x-ray dated 24 March 2011 concluded that there were degenerative changes at C6/7 with disc narrowing and endplate spurring which were less marked at C5/6. There were at least minor osteophyte encroachment on the right exit foramina at these levels. The MRI of the Applicant’s cervical spine dated 4 October 2011 noted moderate foraminal narrowing at the right C6/C7 level likely irritates the exiting right C7 nerve root. This was said to account for the Applicant's symptoms. Mild to moderate foraminal narrowing is also present at the left C7/T1 level with possible irritation of the left C8 nerve root.
Dr Giblin, Orthopaedic Surgeon
In his medico-report of 11 February 2013 Dr Giblin, noted that the Applicant was receiving no current treatment aside from GP visits monthly and taking Nurofen Plus. The Applicant’s main complaints were in relation to his right upper extremity and right side of neck; his shoulder was stiff, aching, catching pains and feeling weak. The Applicant was no longer able to partake in his hobby of prospecting, doing heavy domestic responsibilities, and he avoided cutting grass. He noted a provisional diagnosis of soft tissue [injury] to right shoulder, left neck and groins as well as soft tissue injury to cervical spine with referred symptoms to right wrist. He considered the right shoulder symptoms would persist indefinitely and be associated with permanent physical limitations. Dr Giblin said “Specifically, he is permanently unfit to use his right arm for repetitious pushing, pulling, twisting, load bearing, operating heavy vibrating machinery, or activities at or above shoulder height.”
In respect of treatment for the right shoulder condition, Dr Giblin considered that it would require conservative treatment mainly addressed by his family doctor. The only surgical intervention which may be considered was to the Applicant’s cervical spine.
He considered the Applicant was fit for his current work environment but his injuries would be subject to aggravation and deterioration.
In his evidence Dr Giblin thought the Applicant’s pathology at C6/7 would cause very little problem – suggesting an ‘occasional twinge every 18 months or 3 years or so’. He thought that about one in 10 patients with a moderate soft tissue injury to the shoulder would have recurrent neck problems. As to the significant improvement following the steroid injection, Dr Giblin explained that as possible transient nerve root irritation. He conceded that it was possible that the resolution of his symptoms provided a pointer to the pathological basis for the Applicant’s complaints.
Dr Maxwell, Orthopaedic and Spinal Surgeon
Dr Maxwell, provided four reports dated 19/05/11, 20/01/12, 16 May 2013 and 4 September 2013.
In the report of 19 May 2011 Dr Maxwell noted that the Applicant said that despite the surgery on his right shoulder it subsequently became stiff "frozen" and he had developed a nerve-like pain radiating down his right arm. Nerve conduction studies were noted to be normal. The doctor considered the x-ray of the cervical spine dated 24 March 2011 showed excellent disc space preservation, separate ossicle at the anterior aspect of the C6 vertebral body which was of no clinical significance. On examination there was no evidence of capsulitis but the Applicant demonstrated restriction of abduction and flexion of the right shoulder which may have been secondary to disuse although there was no muscle wasting in his right arm. The pain in the Applicant’s right arm did not fit any particular dermatomal pattern nor any pattern of a single peripheral nerve, therefore it was difficult to find any specific pathology for this symptom. The doctor did not consider the Applicant should have any further treatment, and he could return to his previous duties within a month. He noted the Applicant had a restricted range of movement but was not certain whether that was voluntary or involuntary.
Dr Maxwell did not consider the Applicant had any pathology in relation to the neck at that time, and that his current symptoms related to his right shoulder and rotator cuff repair. Symptoms were not typical of radiculopathy. In his view the MRI scan of the cervical spine (as recommended by Dr Walker to exclude radiculopathy) did not relate to the compensable right shoulder rotator cuff tear. He expected the Applicant’s symptoms to continue to resolve over the next 3-4 months.
In his report dated 19 May 2011 Dr Maxwell recorded that the Applicant suffered from a restriction of abduction and flexion of the right shoulder.
In his report of 20 January 2012 Dr Maxwell noted that the Applicant was then reporting pain on right side of neck and shoulder and that he experienced pain in his right wrist and felt pins and needles radiating down posterior aspect of his arm as well as numbness in right thumb, index and middle finger. He was taking Nurofen Plus. He had developed increasing symptoms radiating to his right arm associated with neck movement, and there was some wasting of the right arm secondary to disuse, perhaps due to a chronic C6 or C7 nerve root lesion. He particularly noted that the applicant did not develop pain radiating down his arm in radicular fashion until the recovery period from his right shoulder surgery. He considered it possible that the applicant was suffering from radiculopathy to the C6 or C7 nerve root. In the absence of a significant disc protrusion it was likely, in his view, that the nerve root irritation affecting the Applicant’s right arm was due to radiculopathy which is constitutional and related to the osteophytes causing narrowing of the intervertebral foramina. His symptoms of radicular pain down the right arm were not consistent with mechanism of injury. He did not consider there to be a direct relationship between his cervical symptoms and the right shoulder injury or the surgery performed by Dr Duckworth. Further, the symptoms of his cervical spine were not considered to be related to the Applicant's employment. He considered the Applicant appeared to have suffered an aggravation of underlying constitutional condition which commenced spontaneously without further injury. He considered the applicant was still fit to drive a forklift but would have some difficulty doing overhead lifting or repetitive work moving his neck.
In his report of 16 Mary 2013 Dr Maxwell noted the Applicant was taking Nurofen Plus three times per week. The Applicant reported that when driving a forklift he was having difficulty turning his head to the right because he had pain in the right side of his neck. Initial pain was reported in the right shoulder but subsequently developed in the left groin and this was when the inguinal and umbilical hernia were discovered. The Applicant told him that following the surgery in 2010 he developed pain “like a nerve pain” radiating down his right arm. He noted that when the Applicant was sent for nerve conduction studies, they were normal. An MRI in October 2011 recorded some C7 nerve root irritation and the Applicant was referred to a Neurosurgeon whom he saw in April 2012 and recommended a peri-radicular injection around the seventh nerve root. The Applicant told Dr Maxwell that following this he felt “brand new” and it relieved the pain in the shoulder and his arm. This continued for the next 2 and a half to 3 months and the pain gradually recurred.
The Applicant told him his current complaints included pain radiating from the shoulder to the right wrist and the tip of the right thumb as well as “electric shock” like sensations in his right arm. The Applicant said he sometimes experienced pain at the right side of the neck, and the pain radiating down the right arm was the major continuing problem.
Dr Maxwell noted the first indication that the Applicant had nerve pain in his right arm was on 15 February 2011 almost 1.5 years after the incident, and that prior to that all complaint of pain had been confined to the shoulder. Further, he observed that Dr Wong's notes indicated that the radicular lesion (which probably involves the C7 nerve root) did not present until 1.5 years post the initial injury. He therefore considered it was a constitutional condition and the incident would have had no effect on the underlying pathology in the cervical spine.
In his supplementary report of 4 September 2013 Dr Maxwell noted that due to the Applicant’s C7 nerve root impingement in the right arm he would have difficulty in laterally rotating his neck to the right and with the radicular pain into his arm he would have difficulty working for prolonged hours on a forklift. He considered the Applicant’s incapacity was due to the C7 nerve root lesion which he considered is probably a constitutional lesion. The only medical treatment which the Applicant required in his view was in respect of the C7 nerve root impingement and he may need anterior cervical fusion at the C6/7 level to relieve pain due to the C7 radiculopathy on the right.
Dr McMaster Neurosurgeon
In her report dated 3 April 2012 Dr McMaster found that the Applicant's symptoms were consistent with right C6/C7 radiculopathy which were attributed to changes visualised on the MRI scan. The Applicant was said to not be keen to try medication and an epidural steroid injection was performed on 4 April 2012.
Dr Stephenson Orthopaedic Surgeon
In his report dated 11 March 2013 Dr Stephenson noted that the Applicant had advised that Dr McMaster, having referred to MRI scan had recommended a cervical surgical decompression procedure. The Applicant’s present complaints included pain and restricted movement in right shoulder; pain over right upper extremity from suprascapular and right scapular region over right shoulder laterally, over right upper arm, right elbow and extending down to the radial side of the right wrist with some hypersensitivity in the right forearm, distal third radial aspect. In terms of diagnosis, he indicated that he was not of the opinion there was an aggravation of a pre-existing condition, rather, accepting that there was an acute injury to the rotator cuff right shoulder. Prognosis remained guarded. As to the restriction in range of movement, this was in keeping with the prediction of Dr Duckworth that resistance in some range of motion was likely.
He considered the cervical spine issues required further neurosurgical opinion. He accepted there is a relationship between the incident and the development of pain and restricted movement in the right shoulder with symptoms developing consistent with a cervical pathology initiating pain referred down the right upper extremity. He made a diagnosis of rotator cuff pathology right shoulder and cervical spine discal pathology at C5/6 and C6/7 with associated with disc osteophyte complexes causing both central and bilateral foraminal narrowing. He considered there to be a direct relationship between the incident and the shoulder and neck which was ongoing. He considered though that the pins and needles sensation may be a subjective sensation, which is not able to be related specifically to the injury.
With respect to the surgery he considered the cervical injection was an appropriate procedure for the work-related injury.
He considered any incapacity is likely to be directly related to the incident, especially in relation to the marked restriction in range of movement in the shoulder. He considered the Applicant not be fit for his previous full duties nor overhead work with right upper extremity. It was reasonable though that the Applicant attempt normal days and hours per week on lighter/restricted duties.
In a supplementary report dated 3 September 2013 Dr Stephenson noted the opinion of Dr Maxwell is corroborated by Dr Wong's records in that there is no reference to the Applicant complaining of neck pain throughout 2010.
When asked to elaborate on the connection between the incident and the Applicant’s current cervical spine pathology, Dr Stephenson noted that there was a history of significant neck injury at the time of the fall, although he agreed with the opinion of Dr Maxwell that the Applicant’s symptoms could well be related to degenerative changes in the cervical spine. There was some chronic foraminal stenosis in the cervical spine. He was “not of the opinion that there was an acute cervical spine injury at the time when he injured the right shoulder” and “the cause of the referred pain to the upper extremity is that of degenerative change noted on radiology”.
In the report dated 11 March 2013, Dr Stephenson said in relation to the Applicant’s right shoulder that the Applicant suffers from an acute injury to the rotator cuff right shoulder. “He is left with a restriction in range of motion, particularly in elevation capability.”
In respect of incapacity for work he stated “Any incapacity in terms of full duties is likely to be directly relevant to the relevant injury at work and this is particularly so as regardes to the marked restriction in range of motion right shoulder… .” In respect of the relationship between the Applicant’s employment and the claimed condition Dr Stephenson stated “I accept there is a direct relationship between the fall and the relevant areas of interest now. That is the right shoulder, neck and left knee… .”
Right Wrist
The Applicant’s evidence was that he injured his wrist in the incident and it never improved and he was in constant pain. He said he was unable to differentiate between the pain in his wrist and the pain that radiates down his arm from his shoulder and into his wrist and thumb, but the latter is shooting pain when his shoulder is aggravated.
In his medico-report of 11 February 2013 Dr Giblin, considered that symptoms in the Applicant’s right wrist emanated from his cervical spine.
Left Leg
In his report of February 2013 Dr Giblin, noted in relation to left lower extremity, he is unfit to use left leg for heavy repetitious labouring work and should not be working at heights. Dr Giblin was not asked to provide his opinion in respect of the cause of the injury to the left leg. In respect of medical treatment for the left leg injury, Dr Giblin provides that it will require conservative treatment mainly addressed by his family doctor.
Dr Maxwell recorded in his report of 16 May 2013 that the Applicant indicated that his left knee had been sore since he had the fall. When he saw Dr Wong he felt he had sprained it and that if he does not work his knee does not hurt. He complained of some sensation of collapsing when walking long distances. On examination the pain was located behind the patella. With examination of the knee, range of motion was assessed from 5 of flexion to 145; there was no synovial hypertrophy, or effusion; there was tenderness along the medial joint line and along the medial border of the patella; McMurray's test was negative and ligaments were stable.
The Applicant told Dr Stephenson that when he fell he hyper-extended the left knee as the left lower limb had flexed forwards. Dr Stephenson, in his report of 11 March 2013 considered the Applicant suffered from a possible internal derangement left knee which needed to be addressed in due course. He accepted that there was no reference in the notes of Dr Wong to the left knee injury until March 2013 which is a long time since the date of the original injury of 15 October 2009. Nevertheless, he considered there to be a direct relationship between the incident and the left knee condition. When asked to elaborate on the connection between the Applicant's knee pain and the incident, in his supplementary report of September 2013, Dr Stephenson commented the following: “I have not seen established evidence of a significant left knee injury which is recorded or investigated immediately after the fall”. Therefore he is “not of the opinion that there was a significant knee injury at the time of the fall on 15/10/09” to expand “I did not see a direct causal connection between the Applicant's knee pain and the fall of 15/10/09”.
In relation to medical treatment, Dr Stephenson noted discomfort and stated that it would require referral to an orthopaedic specialist for further investigation as well as a referral to undergo an MRI scan.
CONSIDERATION
We found the Applicant’s account of the incident to be somewhat problematic. At first, to Dr Wong whom he consulted on the day of the incident he described only having kicked a steel bar and fallen over. In his claim he was similarly brief. His account to the various medical practitioners who examined him were vaguely consistent. However, on 16 May 2013 he described the incident to Dr Maxwell as causing him to ‘somersault’ and land on his back. This differed to his previous account to Dr Maxwell; neither did he report a ‘somersault’ to any of the other examiners. In his evidence before the Tribunal he went on to describe the effect of having caught his foot as ‘catapulting’ or ‘somersaulting’ him about 5-6 metres. Similarly, in his statement to the Tribunal dated 15 November 2013 he wrote of having grazed his ear. Up until that time the ear does not appear to have been mentioned, including in the Applicant’s statement of 15 February 2013 in which he set out his injuries. Neither was it mentioned to any doctor, including Dr Wong who saw him within hours of the incident
His description of the incident has evolved over time. Overall we found the Applicant to be a poor historian. This necessarily led us to be somewhat sceptical about the Applicant’s claim that all his work limitations are attributable to his injured shoulder, and, to a lesser extent, his wrist and left leg injury occasioned in the incident. For the reasons discussed below we came to the view that the Applicant was either exaggerating his claim or conflating his ongoing complaints with the symptomatology associated with the incident.
The Shoulder
The Applicant said it was both the pain and loss of range of movement in the shoulder that limits his work ability.
In his evidence, when referring to his ‘shoulder pain’ the Applicant referred to not only the tip of his shoulder but also the front of his shoulder, his trapezius and into the centre of his back. The applicant denied ever having any neck pain, but in his evidence he was referred to Dr Wong’s notes that record his complaints of neck pain on 15 February 2011, 3 October 2012, 15 March 2013 and 8 April 2013.
It was submitted on behalf of the Applicant that his shoulder condition encompasses the upper arm, shoulder joints, scapular, and surrounding tissue as identified by Doctors Giblin and Stephenson. Dr Wong, too, said he did not distinguish between the shoulder and the neck.
Dr Maxwell, on the other hand, confined ‘the shoulder’ to the topmost posterior tip. The Applicant, in submissions, conceded that this was the site of the rotator cuff tear which occurred during the incident.
We considered the history of the treatment of the Applicant’s shoulder complaint to inform our view of the progress of his condition and whether the effects of the incident have ceased.
The evidence was that the Applicant attended Dr Wong very soon after the incident. The main complaint at that time, from Dr Wong’s notes, was his groin injury. On the second visit following the incident, the Applicant complained of continuing pain in the right shoulder, which was tender but with a good range of movement. When the pain in the shoulder increased, Dr Wong ordered an ultrasound which showed a small mild partial tear of the supraspinatus.
When the Applicant’s shoulder did not resolve the Applicant was referred to Dr Duckworth who repaired the rotator cuff on 18 March 2010. The Applicant’s evidence was that after the surgery his only complaint was of a sharp pain “right at the top of [his] shoulder that has gone but comes back when it’s aggravated”. At the 6-week review the Applicant was improving but there was still pain. At 11 weeks his elevation and rotation was improved. On 28 July 2010, at the 5-month review, he was reported to have no pain. This is in direct contrast to the Applicant’s evidence that he has never been pain-free since the incident. On 20 October 2010, at the 7-month review Dr Duckworth considered the Applicant had good function with minimal pain (although in the same report he was also described as having no pain.). The Applicant’s range of movement had improved further and he was fit to return to normal duties (but was unable to do so because of the impending hernia operation.) Dr Wong noted on 29 November 2010 that the shoulder was still frozen but there was no complaint of pain recorded in his notes. Again this contrasts with the Applicant’s evidence of constant pain.
It was not until 20 January 2011, some 10 months after the repair, that the Applicant again complained of pain to Dr Wong. His shoulder pain was said to have been aggravated by looking up. On 15 February 2011 Dr Wong noted poor range of movement which was aggravated by exercise. The Applicant complained, for the first time, of nerve pain down to his right thumb. Dr Wong examined the Applicant’s neck and observed “slight stiffness but right wrist - ++ trigger point but nil weakness or muscle wasting”. This suggested to us a possible link in the doctor’s view between the wrist and the neck. To eliminate entrapment the Applicant was referred for an x-ray of his cervical spine and nerve conduction studies and referred the Applicant to a neurologist, Dr Walker. When reviewed again by Dr Duckworth on 22 February 2011 the doctor deferred to Dr Walker in relation to the nerve pain but wrote, somewhat cryptically, “there is a definite link between his neck and shoulder pain and nerve pain”. Dr Walker, wrote in his report to Dr Wong dated 28 March 2011 that he took a history that after the repair the Applicant’s arm was in a sling for 6 weeks after which he noticed pain radiating down his right arm to the level of his wrist. Dr Wong’s evidence was that Dr Walker suggested the neck as the possible cause of the Applicant’s pain in his arm, which was his most disabling symptom.
By April 2011 the Applicant had started to complain of pins and needles down his arm. In October 2011 Dr Wong urgently referred the Applicant to Dr McMaster, neurologist for treatment, noting that the Applicant was unable to lift his arm above his shoulder. He had neck stiffness and poor range of movement. MRI imaging had shown disc lesions at multiple levels in his cervical spine. Dr McMaster recommended a steroid injection. In her notes Dr McMaster wrote “neck pain -> R arm, thumb”. This also was in direct contrast to the Applicant’s evidence that he had never had anything wrong with his neck.
In fact the Applicant had a cortisone injection in his neck on 4 April 2012. As a result, he said, for 10 weeks, all the pain in his shoulder, the pain in his wrist and the shooting pain down his arm into his thumb, and the pins and needles virtually went away completely, except if he over-extended his shoulder. In his notes of the consultation of 10 April 2012 – only 4 days later - Dr Wong noted “++ great response to steroid injection [sic] 6/4/12 [sic]– now can sleep at least 70%”. In his evidence he suggested this meant the Applicant’s improvement was only 70%, but we do not accept this interpretation, especially in view of the Applicant’s evidence of almost complete recovery. It was not until 28 June 2012 that Dr Wong recorded that the effect of the steroid injection was wearing off. On 2 August 2012, the doctor recorded that the Applicant’s shoulder had been “good until yesterday” when he had experienced another workplace incident. On 6 August 2012 his right shoulder range of movement was about 80% of normal range and he was able to raise his arms above shoulder level. In October 2012 Dr Wong considered arranging another steroid injection, which suggests to us that both the doctor and the Applicant considered such a course to be beneficial having regard to the outcome of the previous injection.
In his evidence Dr Wong said that the Applicant’s pain fluctuated but that the pain at rest is tolerable. This is in contrast to the Applicant’s evidence of constant pain. The Applicant’s evidence, somewhat confusingly referred to a very sharp pain right at the top of his shoulder that recurs when aggravated.
The Applicant was unable to differentiate between whether it was his neck or shoulder that “gets aggravated and causes the shooting pains and pins and needles down his arm”. He gave conflicting evidence about the location, the frequency and duration of his pain. His expanding account of the incident demonstrated that, with the passage of time, he is an unreliable historian.
Having regard to the very significant improvement in his neck, shoulder, arm and wrist condition occasioned by the cortisone injection to his neck we consider that the evidence supports a finding that the Applicant’s underlying problem is associated with his neck, rather than residual issues of the injury to his shoulder. We note too that Dr Wong had taken a history that the pain in the arm was his most disabling symptom, certainly in the lead up to the cortisone injection. This too is contrasted with the Applicant’s evidence at the hearing.
The Applicant particularly relied on Dr Giblin’s evidence. Dr Giblin considered the Applicant to be permanently unfit to use his right arm for pushing, twisting, load bearing, operating heavy vibrating machinery, or activities at or above shoulder height. That suggested to us that the majority of the limitations identified by Dr Giblin were consistent with the neuropathic problems associated with the Applicant’s neck condition. While no treatment for the right shoulder condition was foreshadowed Dr Giblin noted surgery may be considered for the Applicant’s cervical spine, although in his view it was unnecessary. That suggested to us that, notwithstanding his evidence that it would cause only the occasional twinge, even Dr Giblin regarded the Applicant’s neck as an ongoing condition that may require intervention. The doctor at first sought to explain the significant improvement following the steroid injection as a response to possible transient nerve root irritation. We considered it significant that he was prepared to concede that the resolution of symptoms may provide a pointer to the pathological basis for the Applicant’s complaints. That he thought that about one in 10 patients with a moderate soft tissue injury to the shoulder would have recurrent neck problems does not explain, in our view, the Applicant’s degenerative cervical problems. In any event, we prefer the view of Dr McMaster, the Applicant’s treating neurosurgeon, who made a direct link between the Applicant’s neck condition and his referred pain into his thumb.
Where the sequence of events reveals more than one injury or other alleged causes of incapacity, a common sense assessment of the causal chain is required in order to determine whether the initial injury is an effective or operative cause of the incapacity such that compensation is pay: Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at [6].
We are satisfied that any residual incapacity for work that may be attributed to the 2009 incident, were by 20 March 2012, if it existed at all, was very minor. It was when the Applicant was cleared for a full return to his pre-injury duties in February 2011 that he immediately complained of pain in his neck and the referred pain into his thumb discussed above. Prior to that time he had been working up to 8 hours a day for 3 days a week. His work during that time had included labouring.
Wrist
Apart from the pain in the Applicant’s neck or shoulder that extends to the wrist, his wrist was injured in the incident. In his evidence though the Applicant did not claim that his wrist condition interfered with his work ability. In his medico-report of 11 February 13 Dr Giblin, considered that symptoms in the Applicant’s right wrist emanated from his cervical spine.
Left Leg
As to the Applicant’s leg we observe that while the applicant complained to Dr Wong of knee pain on the day of the incident, the first complaint about the left knee injury was not until March 2013, some three and a half years after the incident. We do not accept that there was evidence of any incapacity to the Applicant’s knee or leg beyond his initial complaint.
CONCLUSION
We find that as at 20 March 2012, and to date, the Applicant did not suffer an incapacity for work as a result of his injuries arising out of the incident. We are therefore satisfied that the Respondent is not liable to pay compensation to the Applicant for incapacity to work from 20 March 2012. Further, we find, as at 20 March 2012, and to date, the Applicant does not reasonably require medical treatment in relation to his injuries arising out of the incident.
DECISION
The decision under review is affirmed.
I certify that the preceding 92 (ninety -two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member, Dr I Alexander, Member. ....[Sgd]....................................................................
Associate
Dated 3 July 2014
Dates of hearing 22-23, 29 April 2914 Counsel for the Applicant Ms M Fraser Solicitors for the Applicant Maurice Blackburn Lawyers Counsel for the Respondent Mr M Snell Solicitors for the Respondent Clarke Legal
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