Jones v Donau Pty Ltd
[2021] NSWPIC 139
•26 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Jones v Donau Pty Ltd [2021] NSWPIC 139 |
| APPLICANT: | Gavan Jones |
| RESPONDENT: | Donau Pty Ltd |
| MEMBER: | Mr Cameron Burge |
| DATE OF DECISION: | 26 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Consequential condition; claim for permanent impairment to both shoulders; frank injury to right shoulder accepted, consequential condition to left shoulder in dispute; Held- in a civil case – particularly where the applicant’s credit is not in issue, the presence or otherwise of corroborative evidence is not determinative of a question of fact such as whether a consequential condition is present; Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 discussed; however, in this matter there was contemporaneous evidence of the applicant complaining of the consequential condition to his treating surgeon in any event; in order to establish the presence of a consequential condition, a worker does not need to satisfy the requirements for injury as set out in section 4 of the 1987 Act; Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 followed; on a common-sense evaluation of the evidence, the applicant suffered a consequential condition to his left shoulder; Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 followed; matter remitted to the President for referral to a Medical Specialist to determine the permanent impairment arising from both the frank right shoulder injury and the consequential condition of the left shoulder. |
| DETERMINATIONS MADE: | 1. Leave is granted to the applicant to amend the Application to Resolve a Dispute by claiming 11% whole person impairment to the right upper extremity and 6% whole person impairment to the left upper extremity in lieu of the impairments currently pleaded. 2. The applicant suffered an injury to his right upper extremity (shoulder) in the course of his employment with the respondent on 11 February 2014. 3. As a result of the injury referred to in paragraph 1 above, the applicant suffered a consequential condition in his left upper extremity (shoulder). 4. The matter is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following: Date of injury: 11 February 2014. Body systems referred: right upper extremity (shoulder), scarring (TEMSKI), left upper extremity (shoulder). Method of assessment: Whole person impairment. 5. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: a. This Certificate of Determination and Statement of Reasons: b. Application to Resolve a Dispute and attachments; and c. Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
On 11 February 2014, Gavan Jones (the applicant) was in the course of his employment as a leading hand/supervisor and OHS safety officer with Donau Pty Ltd (the respondent) when he attempted to catch and support some steel poles which were falling, suffering an accepted injury to his right upper extremity (shoulder).
The applicant’s injury required no fewer than three rounds of surgery, and he alleges that as a consequence of the accepted injury he overused his left shoulder, which has given rise to a consequential condition.
The respondent accepts liability for the right shoulder injury; however, it denies liability with respect to the alleged consequential condition to the left shoulder.
The applicant brings these proceedings seeking permanent impairment compensation with respect to both upper extremities. In the event he is unsuccessful in establishing a consequential condition in his left shoulder, the accepted right shoulder injury will in any event be referred to a Medical Assessor (MA) to determine the degree of whole person impairment arising from the frank injury, including any impairment arising from scarring.
ISSUES FOR DETERMINATION
The parties agree that the only issue remaining in dispute is whether the applicant has suffered a consequential condition to his left upper extremity as a result of the accepted right upper extremity injury.
PROCEDURE BEFORE THE 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.
The matter proceeded to hearing before me on 20 May 2021. On that occasion, Ms N Compton of counsel appeared for the applicant instructed by Ms N Bollins. Mr L Morgan of counsel appeared for the respondent, instructed by Ms N Tancred.
At the outset of the hearing, Ms Compton sought to amend the Application to Resolve a Dispute (the Application) and indicated there had been a typographical error in the pleading. The applicant’s claim is for an 11% whole person impairment to his right upper extremity, and a 6% whole person impairment to his left upper extremity. Leave was granted without objection to amend the Application to reflect the correct claim.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents; and
(b) Reply and attached documents.
Oral Evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Whether the applicant suffered a consequential condition to his left upper extremity
It is important at the outset to establish what constitutes a consequential condition. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. At paragraph 35 and following, Roche DP stated:
“35. By asking if Mr Kumar has suffered a s4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a s 4 injury to his right shoulder.
36. The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 (Davis); Vivaldo; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 (Turner)) and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).”
The Deputy President then referred to the facts of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang):
“Kirby P (as his Honour then was) said (at 461G) (Sheller and Powell JJA agreeing) that “[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”. After referring to earlier English authorities, his Honour added (at 462E):
‘Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.’
His Honour said at 463–464:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common-sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
His Honour concluded that the Court was left with “an unbroken chain of undisputed evidence”. In combination, the facts went “beyond mere predisposing circumstances”. They combined to make it “proper to reach the conclusion that the death of the worker ‘resulted from’ his original injury and all of the consequences which it set in train”. His Honour did not find that the heart attack was a s 4 injury, but confirmed the trial judge’s finding that the heart attack on 8 June 1992 resulted from the accepted back injury in 1981.”
At paragraph 55 of the decision in Kumar, the Deputy President noted:
“It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009. Dr Wallace’s opinion may well be relevant to the ultimate question of whether the shoulder surgery is reasonably necessary, but it does not determine the question of whether the right shoulder condition has resulted from the back injury.”
Likewise, the decision of Deputy President Snell in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) dealt with the question of a consequential injury. In that matter, a schoolteacher made a claim for consequential conditions to her cervical spine and shoulders following an accepted initial injury involving an injury to her power of speech. The Senior Arbitrator at first instance found there was a consequential injury and the employer appealed.
In Brennan, at first instance the Senior Arbitrator said:
“I am satisfied that Ms Brennan has complained of pain in her neck and that there is an unbroken chain of causation from the injury to that condition. The injury to her neck is therefore a consequential condition.”
She continued, saying “the issue with respect to Ms Brennan’s shoulders caused me greater difficulty. However, her complaints with respect to pain in her shoulders have been consistent.” She referred to the opinion of Dr Endrey-Walder that it was not likely that there was shoulder pathology. She continued:
“However my role is not to determine whether there is in fact pathology, but merely whether there is a consequential condition.
I am satisfied that there is sufficient evidence to also refer the question of permanent impairment resulting from the condition in Ms Brennan ’s shoulders to an Approved Medical Specialist.”
At paragraph 100 and following in Brennan, Snell DP summarised a number of Presidential decisions concerning consequential injury, including Kumar, as follows:
“100. There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of these decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) and Kumar v Royal Comfort Bedding [2012] NSWWCCPD 8 (Kumar). It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act.
101. In Moon (involving a compensable injury to the right shoulder, allegedly resulting in a consequential condition of the left shoulder) Roche DP at [44]–[46] described what is required:
‘44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272).
45.It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.
46.The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Limited [1998] NSWCC 7; (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).’
102. In Kumar, one of the qualified medical witnesses approached the issue of whether there was a consequential condition of the right shoulder, by asking whether the worker had suffered a “work related injury” to that shoulder and whether employment was a substantial contributing factor to the condition of that shoulder. Roche DP at [57] said of the evidence of that medical witness:
‘Even assuming, as the respondent has urged, that Dr Wallace rejected the totality of the claim for ‘consequential loss’ in respect of the right shoulder, his failure to address the correct issue, and his focus on whether Mr Kumar suffered a work related injury to his right shoulder, means that his report is fundamentally flawed. For these reasons, the Arbitrator should have rejected Dr Wallace’s conclusion.’”
Ms Compton submitted that the contemporaneous evidence in this matter demonstrated the applicant had complained of problems with his left shoulder which were causally connected to the accepted injury. Ms Compton referred to the following paragraphs of the applicant’s statement:
“46. On 19 August 2015, I consulted with my treating specialist, Dr Matthew McDonald that I continue to have very limited use to my right arm and a result I have been using my left arm to compensate with my activities of daily living. I experienced an aching sensation to my left shoulder.
47. On 1 October 2015, I underwent a medicolegal assessment with Dr Raymond Wallace, orthopaedic surgeon. He diagnosed me with traumatic subacromial impingement at the right shoulder and opined that my employment was the substantial contributing factor to the injury.
48. On 13 October 2015, I consulted with my treating specialist, Dr Matthew McDonald and he advised me not to overdo things with my left shoulder as I continually overuse due to the limited use of my right shoulder. I continued to experience increased pain to my left shoulder due to the extra demands put on it.”
The applicant underwent no fewer than three operations to his right shoulder, as the repairs to it failed on a number of occasions.
In his report dated 19 August 2015, Dr McDonald reported as follows:
“Gavan reports with regret that his right shoulder symptoms remain very much the same. Gavan notes that he has very limited use of the right arm and as a result, he has been using the left arm to compensate with his activities of daily living. Gavan states that he is getting an aching sensation throughout the upper aspect of the left upper arm and into the left shoulder.”
On examination, Dr McDonald noted that forward elevation of both shoulders was restricted to less than 90 degrees because of pain.
In 13 October 2015, the applicant again consulted Dr McDonald who reported the following:
“Again, I have counselled Gavan to try not to overdo things with his left shoulder, so as to compensate for his ongoing disability in the right shoulder. We note that because Gavan is reporting increased pain in his left shoulder because of the extra demands put upon it. [sic]”
The applicant’s Independent Medical Examiner (IME), Associate Professor Ghabrial provided a report dated 16 July 2019. In that report, Associate Professor Ghabrial recorded the following history:
“Following his last operation, he had no improvement of the right shoulder and he was not able to return to the work force.
He started developing symptoms in his left shoulder and that has been recorded, but not investigated. I believe that the left shoulder problem is related to over compensating for the right shoulder problem.
I believe that he is not keen on having any investigations as he is not keen on having any surgery for his left shoulder because of the lack of improvement in his right shoulder following surgery.”
The respondent’s IME, Dr Wallace, noted the applicant did not inform him of any left shoulder issues when he consulted with the applicant in 2015 and 2016. Ms Compton submitted, and I accept, that an absence of such complaint does not prove the applicant was asymptomatic in his left shoulder. Indeed, the evidence establishes that around the time of the applicant’s appointment with Dr Wallace in October 2015, he was making complaints to his treating specialist about symptoms arising through overcompensation with his left arm.
Ms Compton noted that Dr Wallace did not deal with the relevant test for the presence of a consequential condition, as set out in the authorities referred to above. She noted the presence of symptoms is sufficient to ground a consequential condition, provided of course there is a causal connection.
Mr Morgan submitted there was very little evidence that any over reliance on the left shoulder has occurred. He relied upon Dr Wallace’s opinion that there was nothing to support the contention of overreliance causing a condition to the left shoulder. He noted there was no treatment or radiology on the left shoulder over the course of several years, and that none of the matters set out in the applicant’s statement regarding the onset of left shoulder symptoms as supported by clinical material.
Whilst I accept the accuracy of Mr Morgan’s submission, in my view the absence of treatment is not fatal to the applicant’s claim of the presence of a consequential condition. As Deputy President Roche noted in Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56, there is no requirement for corroboration in the context of a civil case particularly where an injured worker’s credibility is not an issue (see also Chanaar v Zarour [2011] NSWCA 199 at [86]).
In any event, there is some contemporaneous corroboration of the applicant’s complaints of the onset of symptoms in his left shoulder. That corroboration arises from the reports from his treating surgeon, Dr McDonald, and also from a vocational assessment report commissioned by the respondent dated 24 May 2016. At page 27 of the Reply, that report refers under the heading “Current Symptoms” to the applicant reporting significantly decreased strength in his left upper limb.
Although there are many clinical entries since the accepted frank injury which do not refer to left shoulder symptoms, it is apparent that the applicant nonetheless made contemporaneous complaints to both his treating surgeon, Dr McDonald, and to the respondent’s vocational assessor that he was having difficulties with his left shoulder. It is not necessary for an applicant to complain of symptoms in a contentious body part every time they visit a treating practitioner. The evidence in this matter discloses the applicant was suffering from symptoms in his left shoulder before proceedings were contemplated and, in my view, those complaints are consistent with the onset of a consequential condition in the left shoulder as a result of the accepted right shoulder injury, given the treating surgeon makes specific reference to an issue of overuse of the left shoulder.
Examining the evidence on a common-sense basis, I find there is a causal connection between the accepted injury and the claimed consequential condition to the left shoulder. In so finding, I accept the opinion of Associate Professor Ghabrial, supported as it is by the reports of treating surgeon Dr McDonald, who plainly accepts the link between overuse of the left arm and the development of symptoms in it, given he recorded that he specifically counselled the applicant not to overdo things with his left shoulder to compensate for the right.
I prefer the views of Dr McDonald and Associate Professor Ghabrial to those of Dr Wallace, who does not address the appropriate test for the development of a consequential condition, and who has not had the benefit of noting the applicant’s contemporaneous complaints to his treating surgeon of the development of symptoms in the left upper extremity.
SUMMARY
For the above reasons, I find the applicant suffered a consequential condition in his left upper extremity (shoulder) as a result of the accepted injury to his right shoulder on 11 February 2014, and the Commission will accordingly make the findings and orders set out on page 1 of the Certificate of Determinations.
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