Kambas v Dnata Catering Australia

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kambas v Dnata Catering Australia [2022] NSWPIC 253
APPLICANT:	Toula Kambas
RESPONDENT:	Dnata Catering Australia
MEMBER:	Rachel Homan
DATE OF DECISION:	27 May 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to accepted right shoulder injury in 2008 and disputed consequential conditions to left shoulder and cervical spine; lack of documentary evidence of ongoing right shoulder symptoms following return to pre-injury duties; delayed reporting of symptoms in left shoulder and cervical spine; lack of explanation in applicant’s expert report; Held- awards for the respondent in respect of the disputed consequential conditions; no evidence of permanent impairment exceeding the threshold in section 66(1) of the 1987 Act for the accepted right shoulder; award for the respondent in respect of the claim for lump sum compensation.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the allegation of consequential condition affecting the left shoulder. 2. Award for the respondent in respect of the allegation of consequential condition affecting the cervical spine. 3. Award for the respondent in respect of the claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Mrs Toula Kambas (the applicant) was employed by Dnata Catering Australia (the respondent) as a caterer from 1999 until she was made redundant in 2020.
On 9 June 2008, the applicant made a claim for workers compensation in respect of an injury to her right shoulder, described in the claim form as a right shoulder strain due to “lifting boxes – additional workload / weight”. Liability for that injury was accepted on 11 July 2008.
On 4 July 2021, the applicant, through her solicitor, made a claim for lump sum compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) in respect of the injury on 9 June 2008. The applicant relied on an assessment of 15% whole person impairment (WPI) of the right upper extremity (shoulder), left upper extremity (shoulder) and cervical spine made by Dr James Bodel.
Liability to pay lump sum compensation was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) on 24 February 2022. By that notice, the respondent’s insurer disputed that the applicant had sustained consequential conditions to her cervical spine and left upper extremity. It was also disputed that the accepted right shoulder injury had resulted in more than 10% permanent impairment as required by s 66(1) of the 1987 Act, or that there was any entitlement to lump sum compensation pursuant to s 67 of the 1987 Act.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the Personal Injury Commission (the Commission) on 29 March 2022. The applicant sought lump sum compensation pursuant to ss 66 and 67 of the 1987 Act. The claim for lump sum compensation pursuant to s 67 was subsequently discontinued at the initial teleconference in the proceedings.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 25 May 2022 via Microsoft Teams. The applicant was represented by Mr John Gaitanis of counsel, instructed by Mr John Kambas. The respondent was represented by Mr Joshua Beren of counsel, instructed by Ms Nina Israil. A representative from the respondent’s insurer was present.
During the conciliation conference, consistently with the claim and dispute notice, the applicant confirmed that she relied only on consequential conditions affecting the left upper extremity and cervical spine rather than any injury to those body parts due to the nature and conditions of her employment.

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.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant sustained a consequential condition at the left upper extremity (shoulder) as a result of the injury to her right shoulder on 9 June 2008;
(b)    whether the applicant sustained a consequential condition at the cervical spine as a result of the injury to her right shoulder on 9 June 2008, and
(c)    the degree of permanent impairment resulting from the injury on 9 June 2008.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    document attached to an Application to Admit Late Documents lodged by the applicant on 6 May 2022.

11.Neither party applied to adduce oral evidence or cross examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in written statements made by her on 22 March 2022 and 2 May 2022.
In her first statement, the applicant who is currently 63-years-old, said she worked as a caterer for the respondent for 21 years starting in 1999.
The applicant described herself as being of slight build and right hand dominant.
The applicant described her work as follows:
“My job as a caterer for 21 years involved repetitive work all day lifting heavy trays of food and lifting lots of boxes full of food /drinks etc (each box weighed 8 kilos). I would be all day on my feet each shift lifting and parting 200 boxes from one trolley to another trolley. The trolleys were high and many times I had to reach above shoulder height to remove the trays and boxes.
My work was demanding, highly repetitive and heavy in nature.”
The applicant said she sustained an injury to her right shoulder and arm on 9 June 2008 due to lifting heavy boxes and doing additional work on that day.
The applicant made a compensation claim and went off work but returned in suitable light duties.
The applicant said she received treatment and rehabilitation including, physiotherapy, analgesia and Nurofen. Despite treatment, the applicant continued to have pain in the right shoulder.
With respect to the left upper extremity, the applicant said:
“After my Injury I protected my Right shoulder and overused my Left arm/ hand/ shoulder. As a result I suffered injury to my Left arm /elbow /shoulder/wrist through overuse and doing this repetitive work up to 2020.”
The applicant said she started to have problems with her neck as a result of the problems in both shoulders.
The applicant consulted her general practitioner, Dr Thanos, in relation to her neck and left upper extremity. The applicant was told there was very little he could do for her pain. The applicant took pain medication and did home exercises but the pain continued. The applicant put up with the pain and did the best she could.
In her supplementary statement, the applicant said she could not recall exactly when her left arm problems arose because she was concentrating on her right arm problems. The applicant noted that she saw her general practitioner about her left arm in 2015. The pain would have become a problem much earlier but she simply put up with it. The applicant concentrated on her right arm, which was her main problem. The applicant just got on with her life, working, looking after her house and taking care of her grandchildren.
The applicant reiterated her previous evidence that she started having problems with her neck as a result of the problems in both shoulders. The applicant saw Dr Thanos about her neck complaints in 2018 but would have had neck symptoms much earlier. The applicant was too busy and did not have the time to complain or report them to her general practitioner. In 2018, the applicant was having physiotherapy on her neck. Over time, it became a real problem, leading the applicant to seek treatment.
The applicant described herself as a stoic person who did not complain and got on with her busy life, avoiding going to the doctor. The applicant was taking pain medication and doing home exercises for her shoulders and neck but the pain continued.

Treating medical evidence

In response to a questionnaire from the insurer dated 10 July 2008, Dr Peter Vo diagnosed the applicant’s injury as a “R shoulder strain- well advanced in recovery”. The applicant’s current return to work status was “suitable duties – full hours”. The applicant was noted to be undergoing physiotherapy. Dr Vo indicated that he expected the applicant to return to pre-injury duties, before the end of July 2008. Dr Vo related the injury to work through overuse, stating,
“The cause is somewhat vague ‘heavy workload’ (problem of the ageing worker).”
A WorkCover medical certificate issued by Dr V J Affleck for Dr Vo on 18 July 2008, certified the applicant as fit for suitable duties with lifting restrictions and limits on pushing and pulling with the right arm. The injury was diagnosed as “R shoulder strain improving” and was said to have occurred by “lifting boxes – work harder today”. The applicant’s management plan included physiotherapy.
On 1 August 2008, a WorkCover certificate noted that the applicant required an X-ray and ultrasound of the right shoulder. For the remainder of August and September 2008, the applicant was noted to be continuing with physiotherapy.
A final WorkCover certificate was issued on 13 October 2008, certifying the applicant as fit for pre-injury duties.
Clinical records from Kogarah Railway Medical Centre, included notes of a consultation with Dr Gregory Thanos on 18 May 2010 in which it was recorded:
“the right shoulder pain exacerbation
she works and lifts boxes and draws all day draws contain soft drinks and weigh a lot she has right scapular muscle spasm and needs physio therapy”
On 11 July 2012 in which the applicant was noted to complain of “right occipital and temporal headaches and pain and pain and restriction when rotating or flexing her head”.
Issues involving the left hand and wrist requiring investigation through ultrasound and treatment with cortisone injection and physiotherapy were noted in November 2015 and February 2016.
On 11 November 2015, a letter of referral to orthopaedic surgeon, A/Prof Justin Paolini was prepared. Dr Thanos recorded:
“SHE HAS LEFT SHOULDER STIFNESS WILL NEEDS TO HAVE OSTEOPATHE TREATMENT TO SHOULDER”

On 13 April 2016, Dr Thanos recorded:
“…has been experiencing more left arm and elbow pain when she over works will take some time off.”
On 10 July 2018, Dr Thanos recorded symptoms in the cervical spine:
“headache for over 1 week it started after physio on her cervical spine and musc spasm on the shoulder girdel
this started on 4th day post physio
the pain is on the vertex and feels like any movement her brain moves
uses panadol for some releaf
has no fever or neck stifness posible mmyalgia”
The applicant was prescribed Voltaren and Nurofen.
On 10 June 2020, Dr Thanos noted that the applicant had recent X-rays of her chest. It was noted that these showed some L1 wedging and cervical spine C6 nerve root compression. Dr Thanos noted:
“dr talbot reffered her to neurorsurgeon for the cervical spine the right arm and shoulder is painful when overused and taks panadol osteo”
On 17 June 2020, it was noted that the applicant was waiting for review with a neurosurgeon. Dr Thanos noted that the applicant’s neck pain was most likely C6 compression.

Dr Bodel

The applicant relies on medico-legal reports prepared by orthopaedic surgeon, Dr James Bodel, dated 30 April 2021.
Dr Bodel noted that his independent medical examination was conducted by videoconference.
Dr Bodel took a history of injury that was consistent with the applicant’s statement evidence, recording the repetitive and heavy nature of the applicant’s work. The applicant reported that she suffered an injury to her right shoulder at work on 9 June 2008.
Dr Bodel took a subsequent history as follows:
“On 09 June 2008 she was on a morning shift ‘lifting heavy boxes and doing additional workloads on that day’ when she felt pain in the region of the right shoulder and was unable to complete her shift for the day.
As the pain became worse she reported the matter at her workplace and was seen by a doctor at IMMEX and was given analgesic medication, she was referred to have physiotherapy twice a week and was shown exercises to do at home.
She was put on light duties for up to two weeks, the shoulder improved a little but the pain did not completely resolve.
She returned to her ‘normal duties’ at work and continued the physiotherapy which helped maintain reasonable function.
She continued to function reasonably well for the next five or six years until 2015. The pain steadily worsened without additional accident or injury.
Her doctor put her on medication and was again referred to physiotherapy. On this occasion she had no time away from work although she did go on light duty activities.
By June 2020 the pain and stiffness spread to the neck and right shoulder. She had little relief with physiotherapy and medication.”
Dr Bodel noted that the applicant was put off work and offered a redundancy due to the COVID-19 pandemic.
The applicant’s current complaints included:
“Continuing pain at the base of the neck and over the top of both shoulders. The right side is worse than the left
Head down posture or use of the arms overhead can aggravate the pain.
Wakes from sleep if she rolls on either shoulder.
Unable to push, pull, lift or use the arms overhead.”
The applicant was noted to be taking Panadol Osteo and performing home-based exercises.
On examination, the applicant indicated that there was discomfort at the base of the neck on the right side over the top of the trapezius muscles. The applicant had reduced range of neck flexion, extension and rotation in all directions, most restricted on rotation to the left. The applicant had a restricted range of shoulder movement, which Dr Bodel verified by the use of a goniometer across the video screen.
Dr Bodel commented that he was not able to test for impingement or instability. There was no visible sign of restricted elbow, wrist or hand movement.
Dr Bodel had no X-rays or other tests available for review.
Dr Bodel commented on documentation provided, including:
“l note various Return to Work Plans from 2008, at the time of the original injury confirming this lady's improvement and her gradual return to the workforce. Her shoulder was never normal and over time it spread to involve the left shoulder and the neck. This is not uncommon in this type of work that she did over more than 20 years.
The WorkCover certificates confirm this lady's incapacity in 2008, her gradual improvement and return to the workforce.
An exercise sheet from IMMEX Physiotherapy is also noted. This is consistent with the appropriate treatment for the management of the shoulder injuries.”
A diagnosis was given as follows:
“This lady has rotator cuff pathology in both shoulders and a whiplash associated disorder in the cervical spine. This has arisen as a consequence of the injury on 09 June 2008. She has done this type of work for more than 20 years and has clinical evidence of rotator cuff pathology in both shoulders and the cervical spine degenerative disc disease, which has been aggravated by the nature of work in general.”
In response to questions from the applicant’s solicitor, Dr Bodel said the applicant had a “primary injury to the right shoulder” and “secondary injury” to the left arm, shoulder, hand and wrist through overuse. In addition, there was a “secondary injury to the neck arising from her problems and both shoulders.”
Dr Bodel stated,
“The left shoulder pathology and the cervical spine pathology are secondary to the original injury that occurred on 09 June 2018 involving the right shoulder.”
Dr Bodel made an assessment of 7% WPI for the cervical spine, 6% WPI for the right shoulder and 2% for the left shoulder giving a combined total of 15% WPI.

Dr Diebold

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Robin Diebold, dated 2 December 2021.
Dr Diebold noted that the applicant was seen in person with the assistance of a Greek interpreter.
Dr Diebold recorded a history as follows:
“On 9 June 2008, she noticed pain in the right shoulder, which she today described as always occurring in the posterior part of the shoulder. She was unable to complete her shift.
She saw her local practitioner, Dr John Affleck, who arranged physiotherapy, analgesia and restricted duties for two weeks. On 15 July 2008, he reported ‘she was well advanced in recovery’ and also that ‘the cause was somewhat vague but related to heavy workload’.
This episode of pain resolved but she said that ever since then she has had intermittent episodes of the recurrence of right shoulder pain with significant work activity.
One of these episodes was in 2015, at which time she saw her local doctor who arranged more physiotherapy. Her pre-injury duties continued at that time.
From about March 2020, she started to work on-call only and has only did occasional work from that time. By June 2020, work stopped due to the COVID19 pandemic and she took her redundancy.
She also reports she has had occasional radiation of pain and tingling in the right upper limb down to the fingers of the right hand.
No investigations have been recorded at any time.
From June 2020, she has also reported that she has had pain in posterior part of the left shoulder and in the region of the left trapezius muscle. She also reports radiation of the pain from both shoulders towards the neck.”
Dr Diebold recorded present symptoms of pain in both shoulders, worse with use. The applicant was taking medications including meloxicam and paracetamol and undertaking intermittent physiotherapy and home exercises.
Dr Diebold recorded that there was an overreaction to examination of the neck and shoulders and inconsistency in areas of tenderness and in the amount of range of motion and irritability of movement.
In the shoulders, there was full-strength of the rotator cuff in all three components and tests for impingement were negative. Examination of the cervical spine showed full range of motion with flexion but reduced lateral flexion and rotation.
Dr Diebold made a diagnosis as follows:
“The diagnosis is of chronic non-specific neck pain.
I was unable to find any objective signs of pathology with which to make a diagnosis in either shoulder. There was a marked disparity between the lack of objective signs present, and the marked level of symptoms. This included an absence of muscle guarding or limitation of movement. She does not have an impingement syndrome, rotator cuff syndrome or a rotator cuff tear. On questioning her three times she identified the painful areas as being in the posterior glenohumeral region and scapular region bilaterally. There was no tenderness in the subacromial area bilaterally. Jobe's and Hawkins' tests for impingement were negative on both sides. There was full strength of the rotator cuff and a full range of motion without irritability, with the exception of some very mild loss of internal rotation on the right. This latter finding would be consistent with the previous impingement syndrome which I suspect she probably suffered initially in 2008.”
Asked for an opinion as to whether the applicant sustained an injury to her cervical spine and left upper extremity as a result of the accepted workplace injury to the right shoulder, Dr Diebold responded, “No.”
Dr Diebold’s reasoning was explained as follows:
“There was no evidence of pathology in either shoulder region.
There is no evidence that chronic non-specific neck pain is related to even marked heavy duties over a prolonged period. There was no specific injury. It is therefore not work-related.
Her duties of her work involve lifting up to 8 kg repeatedly, which I would consider is not of sufficient stress to the shoulders to cause significant pathology.
Any soft tissue strain or aggravation of possible cervical degeneration would not cause mechanical damage to which chronic pain could be attributed.
The onset of her neck pain is vaguely stated and does not appear to have been noted until about June 2020. By this stage she had been working only occasionally since March 2020 and was about to take redundancy.
Chronic non-specific neck pain is a very common condition.
The evidence is against 'favouring' of one upper limb causing significant stress or pathology in the opposite upper limb.”

Dr Diebold identified no work-related impairment. Even if the conditions in the applicant’s neck and shoulders were found to be work-related, the only impairment would be 1% WPI for slight loss of internal rotation in the right shoulder.

Submissions

Oral submissions were made at arbitration hearing and recorded. Whilst not set out in detail, they have been taken into consideration in the findings and reasons below.

FINDINGS AND REASONS

Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act.
It has previously been accepted that the applicant sustained an injury to her right shoulder on 9 June 2008. What requires determination in these proceedings is whether the applicant has sustained a consequential left shoulder condition and cervical spine condition as a result of that right shoulder injury.
It is not necessary for the applicant to establish that left shoulder and cervical spine conditions are themselves an ‘injury’ pursuant to s 4 of the 1987 Act. During the conciliation conference in these proceedings, the respondent alleged that the applicant had not made a claim for “injury” to the disputed body parts by reason of the nature and conditions of her employment in general, nor had any such claim been disputed. The applicant confirmed that in these proceedings she relied only on consequential conditions resulting from the 2008 right shoulder injury.
The distinction between “injury” and a consequential condition has been considered in a number of cases. Deputy President Roche in Moon v Conmah[1] observed at [45]-[46]:
“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.”
[1] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[2], Deputy President Roche commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[2] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required to determine whether conditions in the left shoulder and cervical spine resulted from the right shoulder injury. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[3], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
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.”
[3] (1994) 10 NSWCCR 796 at [810].
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 commonsense 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.”
It is the applicant who bears the onus of establishing on the balance of probabilities that she has sustained the consequential conditions alleged. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[4] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[4] [2008] NSWCA 246.
A useful starting point is to consider the nature of the right shoulder injury on 9 June 2008. The contemporaneous medical evidence described that injury as a “strain” due to heavy work on that day. It is apparent from the WorkCover certificates, physiotherapy records and Return to Work plans in evidence that the applicant was treated with physiotherapy and analgesics. Although in August 2008 it was contemplated that the applicant should undergo an ultrasound and X-ray of the right shoulder, there is no evidence before me to indicate that those investigations were in fact performed. The contemporaneous evidence indicates that the applicant made a good recovery and, after performing suitable duties for a period of time, was able to resume pre-injury duties in October 2008.
Although the applicant has said in her statement evidence that she continued to have pain in her right shoulder and Dr Bodel recorded that the shoulder was never normal, it is unclear whether symptoms continued unabated from the time of the injury in 2008.
The history recorded by Dr Diebold was of “intermittent episodes” of recurring pain with significant activity. Similarly, Dr Bodel recorded that the applicant was able to function reasonably well until 2015 when the pain steadily worsened without additional accident or injury.
These histories are broadly consistent with the clinical records available to the Commission. Those records show an “exacerbation” of right shoulder pain in May 2010 associated with the applicant’s work. Although that note recorded that the applicant needed physiotherapy, it is unclear whether physiotherapy continued or resumed.
There is no other record of symptoms or treatment of the right shoulder until June 2020, when Dr Thanos noted that the applicant’s right arm and shoulder were painful when overused.
The applicant has explained the lack of medical evidence documenting her right shoulder symptoms, by reference to her stoic personality, lack of free time and being busy with work and personal responsibilities over the years. The applicant said she got on with life and put up with her symptoms.
It is relevant, however, to note the comments of Keating J in Department of Education and Training v Ireland[5]:
“… the Arbitrator wrongly directed himself that the matter could be decided based on the credit of Ms Ireland alone. The task before the Arbitrator was to weigh the evidence of Ms Ireland together with other objective evidence, or the absence of it. The Arbitrator erred in failing to give due weight to Ms Ireland’s failure to make any report of injury to her back on the day of the accident. The absence of any documentary evidence from Dr Epps or Dr Baker to support any complaints of back pain, either contemporaneous to the accident or at least at intervals during the period between the accident and when it was first reported to Dr Wallace, is a significant omission in Ms Ireland’s case.”
[5] [2008] NSWWCCPD 134.
There is no contemporaneous documentary evidence to support the applicant’s contention that she continued to protect her right shoulder after the return to pre-injury duties in October 2008.
Mr Gaitanis submitted that as a matter of commonsense it was plausible and logical that the applicant would have protected her injured right shoulder, thereby leading to the conditions in the applicant’s left shoulder and cervical spine. That submission would, however, hold more weight were there contemporaneous evidence of a continuation of symptoms and restrictions in the right shoulder.
Rather, the contemporaneous evidence is of a “strain” which recovered well with conservative treatment, allowing the applicant to return to her full pre-injury duties within four months.
Other than an episode in 2010 associated with heavy work, and a history of other intermittent episodes, but not contemporaneously recorded, the documentary evidence does not satisfy me that there was a continuous or unbroken experience of symptoms or restrictions in the right shoulder from 9 June 2008 onwards.
Mr Beren referred to the comments of Keating J in Munce v Thomson Cool Rooms Pty Ltd[6] at [101]:
“The submission that by reason of the serious nature of the injury to the left shoulder, ‘overloading’ of the right shoulder was ‘obvious and compelling’ is rejected. For the reasons already given, far from being compelling the evidence in relation to overloading was, as the Arbitrator correctly observed, almost non-existent. It does not necessarily follow that because of a serious injury to the left limb that there must be a resulting overuse of the right limb. The causal relationship must be established on the balance of probabilities from evidence in an acceptable form. It was the lack of such evidence which caused the Arbitrator to conclude that he could not be satisfied on the balance of probabilities of a causal connection between the right shoulder condition and the accepted injury.”
[6] [2017] NSWWCCPD 39.
I do accept that the applicant experienced symptoms in her left arm and shoulder and cervical spine during the period of her employment with the respondent. The clinical notes recorded complaints of pain on rotating or flexing her head in July 2012. In late 2015, there was reference to left wrist and thumb and left scapula muscle symptoms for which the applicant was receiving physiotherapy and wearing a splint. In April 2016, there was reference to left arm and elbow pain when the applicant overworked. Cervical symptoms and muscle spasms on the shoulder girdle were described in July 2018 in the context of recent physiotherapy.
None of the clinical records of those symptoms suggest a relationship to the right shoulder injury in 2008. There is, however, reference to symptoms associated with repetitively lifting babies, work movements and overwork.
I accept the applicant’s submission that clinical records must be approached with caution, noting that they are not prepared in contemplation of legal proceedings. There is, however, in these proceedings, a notable lack of treating evidence apart from the clinical records. There are no reports from the applicant’s general practitioner or physiotherapist, radiological investigations or specialist reports. Whilst the absence of such treating evidence is not, of itself, fatal to the applicant’s case, it does render the applicant’s task of discharging the onus of proof more difficult.
The applicant’s medical case hinges predominantly on the report of Dr Bodel. Dr Bodel asserts that the applicant has sustained consequential conditions or “secondary injuries” to the left shoulder and cervical spine without providing a proper explanation of the causal relationship to the 2008 right shoulder injury. Dr Bodel simply described pain and stiffness “spreading to” the neck and left shoulder, and the condition in the neck “arising from” the problems in both shoulders.
In Makita (Australia) Pty Ltd v Sprowles[7], Heydon JA stated, at [85]:
"... if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of 'specialised knowledge'; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be 'wholly or substantially based on the witness's expert knowledge'; so far as the opinion is based on facts 'observed' by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on 'assumed' or 'accepted' facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R [1999] HCA 2; (1999) 197 CLR 414 at 428 [41], on 'a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise'."
[7] [2001] NSWCA 305.
Whilst the rules of evidence do not apply in Commission proceedings, those comments are relevant when considering the weight to be given to expert evidence[8].
[8] See Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11.
In the present case, Dr Bodel’s process of reasoning remains obscure other than his repeated reference to the nature of the applicant’s work and her performance of such work over more than 20 years. Despite labelling the conditions in the applicant’s neck and left shoulder as “secondary”, Dr Bodel’s reasoning suggests that he in fact considered the nature and conditions of the applicant’s employment as causative of the symptoms in the neck and left shoulder. Having regard to the nature of the diagnosis in 2008, the return to pre-injury duties, the lack of ongoing treatment or recorded complaints of symptoms, and the significant passage of time between that injury and the reports of symptoms in the left shoulder and cervical spine, it was necessary, in my view, for Dr Bodel to provide a more detailed explanation of the causal relationship.
The reliability of Dr Bodel’s conclusion is also cast into doubt by his diagnoses of the conditions in the shoulders and cervical spine. Without a face-to-face examination of the applicant and an inability to test for impingement or instability, and in the absence of any radiological investigations or reports from treating doctors, Dr Bodel diagnosed rotator cuff pathology in the shoulders and a whiplash associated disorder in the cervical spine. Dr Diebold, who did have the benefit of physical examination, found no objective signs of pathology in the rotator cuffs. Dr Diebold described the applicant’s neck pain as described as chronic and non-specific. There is no suggestion on the lay evidence that the applicant’s right shoulder injury in 2008 resulted in any form of whiplash to the cervical spine.
Dr Diebold’s reasoning is also of limited assistance in determining the issues in these proceedings. Dr Diebold, like Dr Bodel, appears to have directed his attention to the question of whether there was an “injury” to the cervical spine or left shoulder due to the performance of the applicant’s duties over a prolonged period. Whilst Dr Diebold did address whether favouring of one upper limb could cause symptoms in the contralateral limb, his reasoning focused on whether such favouring could cause “significant stress or pathology” in the opposite limb. In this regard, Dr Diebold appears to apply a more onerous test than that which is required to establish a consequential condition.
Ultimately, it is, however, the applicant’s onus to establish on the balance of probabilities that the symptoms in her left shoulder and cervical spine resulted from the particular injury to her right shoulder 9 June 2008. For all of the reasons given above, I am not satisfied that the applicant has discharged her onus in relation to either body part.
There will be an award for the respondent in relation to the allegation of consequential conditions to the left shoulder and cervical spine.
The applicant has not provided evidence of a degree of permanent impairment in the right shoulder alone that exceeds the threshold required by s 66(1) of the 1987 Act. There will be an award for the respondent in respect of the claim for lump sum compensation pursuant to s 66 of 1987 Act.

[2022] NSWPIC 253

27 May 2022