Kingston v Kingston Landformers Pty Limited
[2021] NSWPIC 359
•20 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kingston v Kingston Landformers Pty Limited [2021] NSWPIC 359 |
| APPLICANT: | Joshua Peter Kingston |
| RESPONDENT: | Kingston Landformers Pty Limited |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 20 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for permanent impairment compensation as a result of accepted injury to left shoulder and consequential condition of right dominant shoulder; poor outcome of left shoulder surgery; respondent disputed consequential condition of right shoulder; consideration of Kumar v Royal Comfort Bedding and Kooragang Cement Pty Ltd v Bates; Held - the applicant sustained a consequential condition of his right shoulder as a result of accepted injury to his left shoulder; matter remitted to President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to left upper extremity (left shoulder), right upper extremity (right shoulder) and TEMSKI scarring. |
| DETERMINATIONS MADE: | 1. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the left upper extremity (left shoulder) and right upper extremity (right shoulder) and TEMSKI scarring on 13 May 2019. 2. That the Medical Assessor is to be provided with the following: (a) the Application to Resolve a Dispute and attachments, and (b) the Reply and attachments. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Joshua Peter Kingston (Mr Kingston) sustained an injury to his left shoulder in the course of his employment as an earthmover with the respondent, Kingston Landformers Pty Ltd (Landformers) on 13 May 2019. Mr Kingston fell off a tractor, grabbing the handrail with his left hand attempting to arrest his fall. He claims to have sustained a consequential condition of his right shoulder, as a result of favouring his injured shoulder.
Mr Kingston completed a State Insurance Regulatory Authority (SIRA) Permanent Impairment Claim Form on 23 February 2021. He claimed pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) to have 13% whole person impairment (WPI) as a result of injury to his right and left shoulders on 13 May 2019.
On 29 April 2019, the respondent’s workers’ compensation insurer, Insurance and Care NSW (iCare) (EML) issued the applicant with two notices pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The first notice disputed that the applicant’s claimed consequential condition resulted from his accepted injury on 13 May 2019. It disputed liability for weekly benefits as a result of injury to the applicant’s right shoulder. It also disputed liability for permanent impairment compensation for his claimed consequential right shoulder condition.
The second notice disputed liability for permanent impairment compensation, on the grounds that the applicant’s accepted physical injury had not resulted in more than 10% permanent impairment, as required by section 66(1) of the 1987 Act. It again maintained that he was not entitled to permanent impairment compensation as a result of his right shoulder condition.
The applicant filed an Application to Resolve a Dispute (the Application) on 25 May 2021. He claimed the sum of $31,000, pursuant to section 66 of the 1987 Act, in respect of 13% WPI as a result of injury to his right upper extremity, left upper extremity and TEMSKI scarring.
The respondent filed its Reply on 16 June 2021.
ISSUES FOR DETERMINATION
The parties agreed at the conciliation/arbitration hearing that the following issue remains in dispute:
(a) Whether the applicant has sustained a consequential condition of his right shoulder as a result of injury to his left shoulder.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for conciliation/arbitration hearing by telephone on 1 September 2021.
Mr Young of counsel appeared for the applicant, instructed by Ms Stojanovic. Mr Allen Parker of counsel appeared for the respondent, instructed by Ms Hickie. The applicant was present. Mr Monaghan and Ms Patterson attended from EML.The parties agreed that, should I determine that the applicant has not sustained a consequential condition of his right shoulder, the medical dispute is not to be referred to a Medical Assessor, as the assessment of permanent impairment and scarring as a result of injury to his left shoulder is not greater than 10%, as required by section 66(1) of the 1987 Act.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The Application and attached documents; and
(b) Reply and attached documents.
Oral Evidence
There was no application by either party to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Evidence of the applicant, Joshua Peter Kingston
The applicant’s statement is dated 6 November 2020.
On 13 May 2019, Mr Kingston fell from a tractor machine while working for Landformers. As he fell, he reached out to grab the handrail with his left hand, attempting to stop himself from falling all the way down. As he grabbed the handrail, his left shoulder dislocated, he let go, and fell to the ground on his right side. The fall was approximately five feet. He experienced immediate severe pain in his left shoulder.
The applicant experienced ongoing pain in his left shoulder in the weeks following his injury. In these weeks he was put on light duties, as he was unable to drive heavy vehicles.
On 17 July 2019, Mr Kingston underwent left shoulder arthroscopic stabilisation with labral repair surgery, performed by Dr Oliver Khoo. He was off work until 23 September 2019.
Since the surgery, the applicant had not been able to return to driving heavy vehicles and was limited to light duties, with which he struggled. He did not enjoy them but stayed hopeful that he could eventually return to driving heavy vehicles.
On 20 March 2020, the applicant received a letter from the respondent, advising that his position had been terminated, as it was unable to provide ongoing light duties. His employment was terminated as of 22 March 2020.
Mr Kingston was referred to Dr Khoo by his general practitioner, Dr Maung Win, on 23 May 2019, when he was still experiencing pain in his left shoulder. He was referred to physiotherapist Mr John Munro on 13 June 2019 and continued to have physiotherapy every three weeks. He undertook home based exercises every day and had massage therapy weekly. He was not scheduled for any further follow ups with Dr Khoo unless his symptoms changed. He had been advised that “this is as good as my shoulder will ever be”.
The applicant consulted psychologist Dr Joshua Forbes on 8 September 2020, but he was unable to help. He began consulting counsellor Ms Donna Piromalli at the end of July 2020 and continued to see her weekly. He was using Voltaren to alleviate left shoulder pain.
The applicant had constant pain in his left shoulder. He had intermittent pain in his right shoulder from overuse. He experienced a throbbing sensation and restricted range of movement in his right shoulder. He often felt his left shoulder was unstable and going to dislocate easily. He experienced reduced range of movement, worse on the left. He experienced intermittent spasms in both shoulders.
The applicant had difficulty lifting anything above his head with his left arm/shoulder. He had significant reduced strength in that shoulder. He had difficulty lifting/carrying anything of weight with his left arm/shoulder; great difficulty pushing and pulling; and struggled with any repetitive movements of his left arm/shoulder. He struggled to sleep because of the pain, which woke him numerous times, as he had to keep changing positions. As a result, he was often tired and found it difficult to concentrate.
Mr Kingston used to enjoy playing drums, going to the gym and playing sport. He was unable to play drums, throw a ball or lift anything of weight, or to undertake any of the hobbies and social sporting activities he used to enjoy. He was saddened that he would never be able to play sports again and found it hard to accept that he can’t play sports like touch football.
The applicant’s surgeon had advised him he had sustained long term damage and weakness in his left shoulder and had increased risk of dislocation recurrence. He had difficulty undertaking light duties. He wanted to return to manual labouring duties and using machinery, but physically could not undertake the work. He was struggling to adjust and concerned about his future. He often had negative thoughts and frequently felt down and anxious. He had started a Certificate IV in Community Service and was doing his best but was concerned about starting a new career.
Medical evidence
Your Health Griffith – General Practitioners
The clinical records of the practice are in evidence. I have not referred in these reasons to every entry in the records.
On 23 May 2019, Dr Lalani Ranasinghe recorded that the applicant had had a fall of six feet from machinery on 13 May 2019. He had “hit the left arm which stuck in the pall [sic: pole?] and fell on the ground”. He had dislocated the shoulder joint. He took some time off but had pain at the shoulder. Dr Ranasinghe requested x-ray and ultrasound of the left shoulder.
Dr Ranasinghe recorded on 30 May 2019 that the applicant had had the MRI and “no pain. Feeling well”. The applicant’s bending and kneeling was restricted.
On 13 June 2019, Dr Ranasinghe recorded that the applicant continued to have pain. He was waiting to have surgery. His movement was restricted, and he sometimes had a feeling of dislocation of the shoulder, “unable to move any time”. The applicant was to be on light duties; have physiotherapy with Mr Munro; strap his shoulder while sleeping; and have a sling.
Dr Maung Win recorded on 13 July 2019 that the applicant needed a workers’ compensation certificate. His NTD (nominated treating doctor) was away. He was to have surgery with
Dr Khoo on “Wednesday”.
Dr Win recorded on 10 August 2019 that the applicant had had surgery on 17 July 2019. He looked well. His left arm was in a sling. He needed an ongoing certificate. His NTD was away.
Dr Ranasinghe recorded on 23 August 2019 that the applicant had been in a sling. He had not seen the physiotherapist yet but was doing some exercise. On examination, his movement was restricted but his fingers moved well.
On 23 October 2019, Dr Win recorded that the applicant was seeing Dr Khoo tomorrow. He felt stable, “no more dislocation”.
On 6 November 2019, Dr Ranasinghe recorded that the applicant was doing exercises with a band (Theraband). He was not coping well. He had had surgery. As advised by Dr Khoo, “changing the job”, but he could not carry things.
Dr Ranasinghe recorded on 5 December 2019 that the applicant had been having some issues, thinking that he could not work. He did not like light duties. He still had some pain and restricted movement. He was not happy about (the doctor) writing light duties, but it was already written, as he could not drive heavy vehicles. As he was driving his automatic car, “I wrote it”.
On 6 February 2020, Dr Win recorded that the applicant had been seen by Dr Khoo, who would review him in mid-March. He looked well. His left shoulder (movement) was limited in all directions to 70 to 80 (degrees).
On 5 March 2020, Dr Win recorded that both shoulders had a reasonably good range of movement.
Dr Win recorded in a telephone consultation on 22 May 2020 that there were nil changes in the applicant’s left shoulder. His right shoulder was playing up as he was overusing it. He was also struggling psychologically and needed referral to a psychologist. The SIRA Certificate of Capacity (COC) issued by Dr Win recorded for the first time “secondary/overuse pain in Rt shoulder”. That diagnosis was included in the COCs thereafter.
On 23 June 2020, Dr Win recorded that the applicant had painful elevation of the right shoulder. The diagnosis was right subacromial bursitis.
Dr Win recorded on 25 June 2020 that there were nil changes in the applicant’s left shoulder. He was to see Dr Khoo in July.
Dr Win recorded on 16 July 2020 that the applicant needed a formal referral to see Dr Khoo for his right shoulder. His left shoulder had limited elevation to 80 degrees and “IR L4”. His right shoulder was over 120 (assumed to refer to elevation) and “IR L1”. On the same date, Dr Win referred the applicant to Dr Khoo for opinion and management of right shoulder pain, secondary to overuse, as his left shoulder was injured.
Dr Win recorded on 13 August 2020 that physiotherapy was helping for movement. The applicant still had pain but was “using more and more”. His left shoulder elevation was up to 130 degrees.
On 10 September 2020, Dr Win recorded that the applicant was to see Dr Khoo on 25 September. He had aggravated his left shoulder using a 2 kg dumbbell, on the advice of his physiotherapist.
On 7 October 2020, Dr Win recorded that the applicant was doing well after stopping the activities, advised by his physiotherapist, that aggravated his shoulder pain.
On 4 November 2020, Dr Win recorded that the applicant had strained his left shoulder again last week, while trying to catch a bottle of medicine. He noted left shoulder dislocation.
Dr Win recorded on 2 December 2020 ongoing issues with the applicant’s left shoulder. He had limited elevation.
On 30 December 2020, Dr Win recorded “nil changes” for the applicant’s left shoulder. He would book with Dr Khoo. There was still limited elevation of the left shoulder. The reason for contact was recorded as insomnia – anxiety-related.
Dr Win recorded on 27 January 2021 that the applicant was feeling much better with Melatonin. He was sleeping better and looked happier. There was limited abduction of his left shoulder.
On 24 February 2012, Dr Win recorded that the applicant had seen Dr Khoo and the physiotherapist. He was “doing same”.
Dr Win recorded on 24 March 2021 that the applicant’s physiotherapist had referred him to a program to align his scapula. There (would be) limited elevation in his left arm when his scapula was fixed.
Dr Win recorded on 21 April 2021 that the applicant’s left scapula was getting better. He had not seen Dr Khoo yet. He had already been seen by an IME (independent medical examiner). There was still limited elevation of his left shoulder.
Dr Oliver Khoo – Orthopaedic Surgeon
Dr Khoo reported to Dr Ranasinghe on 23 May 2019.
Dr Khoo recorded a history that the applicant was right-hand dominant. He had injured his left shoulder on 13 May 2019 when he fell from a tractor and grabbed the handrail with his left hand. He described the sensation of feeling something going out of place and then returning to place in his shoulder. Dr Khoo opined that this may represent subluxation of the joint. The applicant had been avoiding things that hurt his shoulder.
On examination, Dr Khoo noted that the applicant was protective of his shoulder, as he felt it may sublux, and he had a positive apprehension sign. He had elevation of his shoulder to 135 degrees. There was no muscle wasting and a normal scapulothoracic rhythm. Examination was limited by his protective nature.
The applicant was to have x-ray and MRI of his shoulder to assess for a labral tear and be reviewed by Dr Khoo with the results.
On 5 June 2019, Dr Khoo reported that MRI had demonstrated a recent dislocation event, with bone oedema and a Hill-Sachs lesion. The labrum was abnormal and had appearances of a tear, although it was reported as a Buford complex.
Given the ongoing instability and risk of recurrence, Dr Khoo had discussed with the applicant his options, including labral repair. He was to commence physiotherapy and
Dr Khoo would request approval for surgery.Dr Khoo performed left shoulder arthroscopic stabilisation on 17 July 2019 at St Vincent’s Private Community Hospital at Griffith. He reported on 1 August 2019 that the applicant was two weeks post-surgery. His arm was neurovascularly intact and he had been wearing a sling. Dr Khoo had discussed with him the findings of surgery, including the large Hill-Sachs deformity. The applicant was to commence physiotherapy in two weeks, at which time he would also wean from his sling.
On 24 October 2019, Dr Khoo reported that it was three months since the applicant’s surgery. He had abduction of 60 degrees; internal rotation to his buttock; and external rotation of 15 degrees. He continued to have decreased movement of his shoulder and would need to continue physiotherapy to work on movement and strengthening.
On 18 December 2019, Dr Khoo reported that the applicant was pain free. He had been continuing physiotherapy, but still had limited movement. He had 45 degrees of abduction at the glenohumeral joint, internal rotation to L5 and external rotation of 20 degrees. He had poor scapulothoracic control. He needed to continue physiotherapy and his current light duties, with no operation of machinery.
Dr Khoo reported on 19 March 2020 that the applicant was progressing well, but still had abnormal scapular movements due to his restricted movement. His shoulder at the glenohumeral had 60 degrees of abduction. 45 degrees of external rotation and internal rotation to T12. He needed to continue physiotherapy.
On 10 August 2020, Dr Khoo referred the applicant for MRI of his right shoulder. He recorded the clinical history as “right shoulder anterior and posterior pain,?biceps tendonitis, ?labral tear”.
On 24 September 2020, Dr Khoo reported to Dr Winn that the applicant had been reviewed regarding his left and right shoulders. Two weeks ago, he had had an incident at physiotherapy. His left shoulder abducted, and he was performing external rotation exercises, which caused a lot of pain. It had taken two weeks to settle, and he felt some instability at the time. Dr Khoo advised that this position put his shoulder at risk and should be avoided.
The applicant’s right shoulder MRI had demonstrated that his rotator cuff was intact, with no signs of bursitis seen that day. He had some fluid around the long head of the biceps.
Dr Khoo opined that he may be having symptoms from impingement on his biceps, so would continue to have the same periscapular strengthening for each shoulder. He had been provided with the appropriate referral.Dr Khoo reported on 29 January 2021 that the applicant had been reviewed regarding his right shoulder (it appears that this was an error, and he meant to refer to the left shoulder). The applicant had been working hard on his recovery and had made significant improvements in muscle strength. He still had scapulothoracic dysfunction. They had discussed further maximal physiotherapy and Dr Khoo had provided a referral, as well as a request for an exercise physiologist to work on a gym-based program.
Dr James Bodel – Orthopaedic Surgeon
Dr Bodel was qualified by the applicant and reported on 19 October 2020. He assessed the applicant by video conference, due to the pandemic.
Dr Bodel recorded a consistent history of the mechanism of the injury, although he has erroneously noted that it occurred on 17 July 2019, which was the date of the surgery. He nonetheless recorded that, as the applicant’s body dropped from underneath him, he suddenly had a hyperflexion and abduction injury to the left shoulder and took his whole body weight on that arm for a moment, then fell four or five feet to the ground.
The applicant’s arm was “dislocated at the shoulder” and his arm was up above his head. He managed to roll and noted that his arm was flail and did not move. He fell back down, grabbed it, and held it by his body. Within about 10 minute he felt it “relocate”.
The applicant thought his condition had settled and was a minor event, but he was struggling at work and his father (the owner of the business) encouraged him to see his GP and be referred to a specialist.
An MRI scan showed a significant Hill-Sachs lesion in the head of the humerus and that the shoulder was unstable. The applicant subsequently underwent surgery by Dr Khoo on 23 September 2019 [sic].
At this point in his report, Dr Bodel noted that the applicant had dislocated his shoulder as a teenager. He seemed to recall one or two dislocations, after which his shoulder was stable again. Before the injury, he had been doing a lot of weight training, and had been “quite impressed with his physique” as a result. His shoulder was stable and not causing him any trouble. There had been nothing in recent years.
Between the injury and the surgery, the applicant noticed there were multiple subluxations of his shoulder and it was quite unstable. The main reason for the surgery was to control the pain and reinstate stability.
Dr Bodel reported that Dr Khoo had foreshadowed there may be a need for further stabilisation if the applicant had further dislocations. That would be in the form of a Latarjet procedure, which the applicant was keen to avoid. He had had extensive post-operative physiotherapy and had made progress, but his shoulder was not normal. He had a better range of movement, but it was still very weak, and he woke if he rolled on his left side at night.
Apart from the previous minor instability in his left shoulder, Dr Bodel recorded that the applicant had been quite well and very fit and healthy. He had developed a depressive illness and gained 20 kg. He had returned to the gym to do some lower body work and had reduced his weight by 15 kg. He had never had any problems with his right shoulder but was developing some pain in the right shoulder because he was “favouring” that side. There had been a gradual onset of right shoulder pain.
Dr Bodel recorded that the applicant complained of a painful left shoulder; painful arc of movement, and the pain was anteriorly over the region of the biceps tendon and posteriorly as well; some pain over the anterior aspect of the right shoulder, which he had been told was probably due to biceps tendinitis, with no apparent evidence of instability in the right shoulder region; and a sense of instability in the left shoulder, which had not dislocated since the surgery. Dr Khoo was aware of the symptoms in the applicant’s right shoulder but had not recommended any interventional treatment.
The applicant was taking “heavy anti-inflammatory medication”, for which he needed a prescription; using Voltaren gel; taking sleeping medication; and doing home based exercises to strengthen his shoulder, using Therabands. He was up to the “black” Theraband.
Dr Bodel reported that he was able to clearly observe the applicant’s range of motion over the Telehealth link, and he verified it using a goniometer. Mr Kingston had a restricted range of movement in both shoulders, which Dr Bodel had recorded. The appearance on examination suggested there was a painful arc of movement in abduction in both shoulders, a little worse on the left, particularly from about 90 degrees to about 120 degrees of abduction on the right, and between 80 degrees and 100 degrees on the left.
Dr Bodel noted that the applicant had some generalised wasting in the region of the right shoulder girdle, when compared to the right [sic: assumed to mean the wasting was apparent on the left]. He appeared to have good development in the upper body. There was no restriction of elbow, wrist or hand movement. The applicant was able to make a strong fist in front of the camera. Dr Bodel could not test reflexes or sensation. The applicant did not complain of any sensory loss in the upper limbs.
Dr Bodel recorded that the applicant’s local doctors’ notes were consistent with the ongoing management of his injury, both physical and psychological, and he noted the COCs.
The applicant’s diagnosis was a traumatic dislocation of the left shoulder in the incident at work on 13 May 2019. He had had appropriate treatment and surgical repair, with incomplete resolution of symptoms.
Dr Bodel opined that the applicant’s left shoulder was better, but not normal. He still had a sense of instability and weakness in the shoulder. He should be encouraged to continue his exercised based program and use the Therabands to strengthen his shoulder to optimise recovery. If his shoulder should re-dislocate, he would need a much more major reconstruction, with a much less secure outcome, in the form of the Latarjet procedure.
Dr Bodel provided an assessment of permanent impairment. He found a rateable restriction of movement in both shoulders and opined that the applicant’s right shoulder was a “consequential injury in this circumstance.” He assessed 13% WPI, comprising 4% WPI with respect to the right upper extremity, 8% WPI with respect to the left upper extremity, and 1% WPI for scarring on the applicant’s left shoulder.
Dr Graeme Doig – General Orthopaedics and Trauma Surgeon
Dr Doig was qualified by the respondent and reported on 17 April 2021.
Dr Doig recorded a history of the injury on 13 May 2019, when the applicant was re-fuelling an articulated tractor. He was holding onto a handrail when his foot went into a gap in one of the steps. This caused him to lose his balance, resulting in a traction mechanism through the left shoulder. He felt the humeral head dislocate. Over the following half hour, with muscle relaxation, the humeral head relocated.
The applicant’s MRI revealed a Hill-Sachs deformity and bone oedema, consistent with an acute dislocation. He underwent arthroscopic stabilisation on 12 [sic] July 2019, but despite rehabilitation, suffered on-going pain and restricted movement.
Dr Doig noted that the applicant continued to experience discomfort, worse with activity, and restricted movement at the shoulder. It could interfere with his sleeping patterns. He avoided lifting with the left arm. He had been unable to return to training at the gym.
On examination, Dr Doig recorded that the applicant was muscular and fit. He remained tender anteriorly at the shoulder. It is unclear to which shoulder Dr Doig was referring, as this observation appeared in the paragraph in which he discussed the applicant’s right shoulder but is assumed to refer to the injured left shoulder, bearing in mind the observations he then made about the right.
Dr Doig recorded that the applicant displayed full, active range of motion arcs at the right shoulder and was completely uncomplaining with respect to that shoulder. He informed
Dr Doig that the movement was normal. At the left shoulder, the applicant exhibited restricted active range of motion arcs. There was no neurological deficit of the upper limb.Dr Doig had been informed that EML had accepted liability for the applicant’s left shoulder only. He diagnosed an acute instability episode at the non-dominant left shoulder/gleno-humeral joint, requiring arthroscopic stabilisation, with a poor outcome. The applicant’s symptoms correlated with the injury and poor result from surgery.
The following question was asked of Dr Doig, and reproduced in his report: “Mr Kingston has an accepted left shoulder injury and is now claiming in addition to his right shoulder, please confirm if this injury is substantially due to the workplace on 13 May 2019? Please explain”.
Dr Doig responded that, at the time of his assessment, Mr Kingston was uncomplaining with respect to his dominant right shoulder. He demonstrated normal, active range of motion arcs.
With respect to the applicant’s “compensable symptoms”, as they were referred to by EML, Dr Doig opined that Mr Kingston continued to suffer from pain and restricted movement at the non-dominant left shoulder, with problems sleeping and difficulty using his arm overhead. There were no inconsistencies in his presentation.
Dr Doig opined that the applicant should be able to lift up to 20 kg at or below waist height with both arms. He would have problems lifting any weight overhead with the left arm, and repetitively using that arm overhead. He would require breaks from long-distance driving and would certainly find it easier with automatic transmission.
Dr Doig assessed the applicant with 7% WPI as a result of injury to his left upper extremity (shoulder). He assessed no additional impairment for the minor scars, which were taken into consideration in the effects of surgery. He was asked to include an assessment of the applicant’s right shoulder, if he believed that the claimed injury to that shoulder related to his workplace injury. He responded that Mr Kingston was uncomplaining with respect to his right shoulder.
Dr Doig commented on Dr Bodel’s assessment. He opined that accurate impairment assessments cannot be done by video-link. Range of motion at the shoulder varies from day to day and between examiners and is often affected by the amount of pain the examinee is experiencing at that time. The applicant displayed full, active range of motion at the right shoulder and was uncomplaining with respect to that shoulder. Dr Doig reiterated his opinion as to the scarring.
SUBMISSIONS
The parties’ submissions have been recorded. I will therefore provide only a summary of the submissions.
Applicant
The applicant submitted that there is no dispute with respect to a significant injury to his left shoulder. He referred to the operative report and Dr Khoo’s evidence. This is the starting point. His left shoulder has not significantly improved. He is right-handed.
The applicant referred to his own evidence of the symptoms in his right shoulder. This is corroborated by Dr Win’s evidence. Dr Win referred him to Dr Khoo with respect to right shoulder pain secondary to overuse. He referred to the findings on ultrasound and MRI. He expected that the respondent would point to that and say “there’s not much going on”, but he submitted that goes to impairment, not to whether there is a condition present.
The applicant submitted that there is no evidence from the respondent that disputes that the condition of his right shoulder results from the injury to his left shoulder. He relied on the decision in Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 (Kooragang).
The applicant referred to Dr Khoo’s evidence that he had aggravated his left shoulder at physiotherapy. His left shoulder remained susceptible to aggravation and this also highlighted how and why he overused his right shoulder to avoid such aggravation. There was aggravation from innocuous events. The applicant submitted that I would accept that, when such events can cause aggravation, he would overuse his right arm to compensate.
The applicant referred to Dr Bodel’s evidence. He recorded the gradual onset of right shoulder pain. While he did not say there was overuse, he has recorded that Dr Khoo was aware of the symptoms in the applicant’s right shoulder.
The applicant submitted that Dr Doig’s report is important for what it doesn’t say. The important point is that he does not dispute that the applicant has a secondary right shoulder condition. He doesn’t expressly say this or allude to it. What is implicit is that there is a right shoulder condition, but Dr Doig did not rate it. That is a matter for the Medical Assessor.
Dr Doig’s criticism of Dr Bodel’s evidence did not focus on whether there is a secondary condition of the applicant’s right shoulder, just on whether it could be assessed. It did not go to the heart of the proceedings.
The applicant finally submitted that the evidence is all one way. Dr Doig has not addressed what EML says is in dispute.
In reply to the respondent, the applicant submitted that the evidence of overuse is not only what he says. He is right-handed, but innocuous aggravating events highlight why he has used his right shoulder more. The COCs are broadly consistent with his evidence. There is a fair climate for acceptance of the medical evidence, relying on Paric v John Holland Constructions Pty Ltd [1985] HCA 58.
Respondent
The respondent submitted that it is important that the applicant is right-handed. It is commonsense that he would use his right hand more than his left. The history is that after the injury and the surgery on his left shoulder, the applicant was on light duties until he ceased work with the respondent. He then engaged in study and clerical type activities. There is no evidence of what the overuse of his right shoulder is, or the activities for which he previously used his non-dominant hand.
The respondent submitted that the applicant has failed to meet the burden of proof. Dr Khoo was not asked if his condition was caused by overuse. No one asked if it was caused by overuse or other factors or actions.
The respondent submitted that Dr Bodel did perform an examination, but not in person.
Dr Doig did not criticise this but pointed out the difficulties. Dr Bodel reported that the applicant had pain in his right shoulder because he was favouring it but did not explain how. If it is the dominant arm, you use it more anyway. Dr Bodel has not explained what activities the applicant was doing, which is important in discharging the onus.
The respondent referred to Dr Doig’s history and findings on examination. He explained the difference between his assessment and that of Dr Bodel, again without being critical of him. Dr Doig found a full, active range of motion. Dr Bodel could not test reflexes or sensation, which appears to concede that his method of assessment was not the best one.
The respondent finally submitted that there is good reason to accept the evidence of Dr Doig. It comes down to him versus Dr Bodel. He performed a “live examination”, and allegation of overuse is not borne out by the evidence of overuse.
SUMMARY
The applicant claims to have sustained a consequential condition of his right shoulder as a result of an accepted injury to his left shoulder. He is right-handed.
Mr Kingston does not need to establish that he has sustained injury to his right shoulder arising out of or in the course of his employment, pursuant to section 4 of the 1987 Act, or that employment was a substantial contributing factor to the condition, pursuant to section 9A of the Act. In accordance with the decision of Deputy President Roche in Kumar v RoyalComfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), and the cases discussed there, he need only establish on the balance of probabilities that the condition of his right shoulder resulted from the accepted injury to his left shoulder.
Roche DP applied the principles of Kooragang in Kumar, and they have consistently been applied in the Commission.
In Kooragang, Kirby P, as he then was, said at [461G]:
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate.”
After referring to 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 went on to say that where causation is in issue, each case must be determined on its own facts; and at [463]-[464] “what is required is a commonsense evaluation of the causal chain”.
In considering the evidence, I will start with that of the applicant. He has not given specific evidence of the activities that he claims to perform with his right arm as a result of the injury to his left shoulder. However, I have obtained some assistance from his evidence of the difficulties he has in using his left arm. I accept that those restrictions would limit the use of his left arm and increase his reliance on his right arm, notwithstanding that he is right-handed. He has given evidence of intermittent right shoulder pain, a throbbing sensation and restricted movement. I accept that evidence.
Mr Kingston has not had a good outcome from his left shoulder surgery. That is apparent from his own evidence, Dr Bodel’s history that Dr Khoo had discussed with him the possibility of further surgery, and Dr Doig’s opinion that his left shoulder symptoms correlated with the injury and a poor result from the surgery.
The applicant sustained aggravation of his left shoulder in such seemingly innocuous circumstances as using a 2 kg dumb bell and trying to catch a bottle of medicine. It is not surprising that he would try to protect his injured shoulder as much as he could.
The clinical records of Your Health Griffith provide support for the applicant’s claim.
Dr Win recorded on 22 May 2020 that there were no changes in the applicant’s left shoulder. His right shoulder was “playing up” because he was overusing it. Dr Win recorded secondary or overuse pain in the COCs he issued to the applicant. It must be assumed that he accepted this was the case. He referred the applicant to Dr Khoo on 16 July 2020 with the same description of his right shoulder pain as secondary to overuse.
Dr Khoo arranged for MRI of the applicant’s right shoulder, which showed only some fluid around the long head of the biceps. The applicant had been provided with a referral for treatment of the right shoulder. While Dr Khoo clearly accepted that Mr Kingston had right shoulder pathology and symptoms, and required treatment, I am not assisted by an opinion on causation from him.
Dr Bodel referred to the applicant’s local doctors’ notes and he specifically noted the COCs. If he had disagreed with the GPs’ diagnosis of overuse of the right shoulder, I would expect him to have said so. He recorded that the applicant felt a sense of instability and weakness in his left shoulder. I accept that that would also lead the applicant to protect it where he could. Dr Bodel opined that the applicant had a “consequential injury [sic]” of his right shoulder “in this circumstance”.
Dr Doig recorded that the applicant avoided lifting with his left arm. He opined that
Mr Kingston should be able to lift up to 20 kg at or below waist height with both arms. He would have problems lifting any weight overhead with his left arm, and with repetitively using it over his head. These are significant restrictions, even where the applicant is right-handed.Dr Doig was asked if the injury to the applicant’s right shoulder was “substantially due to the workplace on 13 May 2019”. That is not, of course, the question to be answered. The applicant must establish that the condition of his right shoulder resulted from the injury to his left shoulder.
In any event, Dr Doig has not specifically answered the question asked of him. He responded that Mr Kingston did not complain about his right shoulder and demonstrated normal, active range of motion.
Dr Doig was asked to include an assessment of the applicant’s right shoulder if he believed the claimed injury to that shoulder related to his workplace injury. He did not assess the applicant’s right shoulder, again responding that Mr Kingston was uncomplaining about that shoulder.
It may probably be assumed then that Dr Doig did not believe the claimed “injury” to the applicant’s right shoulder was related to the workplace injury, but his report lacks clarity. It may simply be the case that he did not assess the applicant’s right shoulder because
Mr Kingston did not complain about it, and he a found normal range of motion. Whether the applicant has any permanent impairment as a result of a consequential condition of his right shoulder, should he establish such a condition, is for a Medical Assessor to determine.
The applicant, of course, bears the onus. The respondent submitted that he had not met that burden. It made submissions about the differences between Dr Doig’s findings on examination and those of Dr Bodel.
The respondent submitted that the dispute came down to Dr Doig versus Dr Bodel. That may be the case if only the assessment of WPI is being considered. In determining whether the applicant has met his onus of establishing a consequential condition, I also need to consider his evidence and the other medical evidence. I have found Dr Doig’s evidence unpersuasive, for the reasons above.
Having considered the evidence of the applicant, his general practitioners, Dr Khoo, Dr Bodel and Dr Doig, and applying the “commonsense” evaluation referred to in Kooragang, I have determined that the applicant has sustained a consequential condition of his right shoulder as a result of the injury to his left shoulder on 13 May 2019.
The medical dispute will therefore be remitted to the President for referral to a Medical Assessor.
The orders are set out in the Certificate of Determination.
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