Marija Markovski v Hobson Bay Financial Services Pty Ltd (WorkCover)
[2016] VMC 8
•26 April 2016
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKCOVER DIVISION F12064107
BETWEEN:
MARIJA MARKOVSKI Plaintiff
-and-
HOBSON BAY FINANCIAL SERVICES PTY LTD Defendant
MAGISTRATE: Ginnane
DATE OF DECISION: 26 April 2016
WHERE HEARD: Melbourne
MEDIUM NEUTRAL CITATION: [2016] VMC008
APPEARANCES COUNSEL SOLICITORS
For the Plaintiff Mr N Dunstan Slater & Gordon
For the Defendant Mr N Chamings Wisewould Mahony
Catchwords: - two rejected claims- diagnosed right carpal tunnel – development of right shoulder condition – whether employment repetitive - reliance on specific incident of lifting – whether lifting amounted to a an recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease of shoulder – applications dismissed
REASONS FOR DECISION
HIS HONOUR:
Introduction
1. I am asked to decide if the plaintiff’s claimed injuries to her right hand/wrist or the right shoulder arose out of or in the cause of her employment. Essentially the resolution is one of causation and of sufficiency of proof. Causation in the applicable sense is a matter of fact. In regard to causation Deane J said in March v Stramare:[1]
[1] (1991) 171 CLR 506 at 524
“The question of whether conduct is a cause of injury remains to be determined by a value judgement including ordinary notions of language and common sense.”
2. The plaintiff was employed by the defendant as a bank teller. She alleges that throughout the course of her employment with the defendant and in particular between approximately April 2011 and September 2013, and also specifically in about August 2013, she sustained injury, the particulars of which contained in the pleading are[2]:
[2] Sub-paragraph 3 of the Plaintiff’s Statement of Claim
·Right carpal tunnel syndrome
·Referred right arm pain
·Pain, restriction of movement, weakness and loss of grip strength of the right-hand
·Under surface fraying of the right anterior supraspinatus tendon was split tear extending into mid-fibres
·Right sub scapular tendinosis with subdeltoid bursal thickening
·Cervical spine pain
·Adjustment disorder with depressed mood
·Headaches
·Impairment of sleep
3. The plaintiff alleges that her injuries occurred in the course of her employment with the defendant because of repetitive and extended periods of handling cash money including lifting, carrying and handling bags of coins. In addition she relies on a specific injury or trauma occasioned when bending to lift a bag of coins in August 2013.
The various claims
4. The plaintiff lodged a claim for compensation for weekly payments and medical and like expenses pursuant to s 103 of the Act on 3 November 2013 (“the first claim”)[3]. The first claim was made for a “right hand, arm and shoulder condition with bad headaches due to pain”. The plaintiff claimed to have so suffered from the same for a number of years and arising by reason of the daily tasks required of her employment, namely “counting money, notes &coin, picking up coin bags & handling & doing my daily job, as a cso[4]. Also the coin machine @branch bending to get bags of coin”. The plaintiff pointed to and relied on an Incident Report she completed on 12 April 2011[5] and that she says, and I accept, she sent to a superior.
[3] Ex P3
[4] CSO ( “Customer Service Operator”)
[5] Ex P1
5. The Incident Report dated 12 April 2011 detailed her injury as “RIGHT HAND, ARM, SHOULDER AND HEAD” and as to cause the attribution was expressed to be “HANDLING BULK COIN POOR DESIGN OF SAFE, BENDING STRETCHING AND ON KNEES TO GET TO BOTTOM OF SAFE”.
6. On 5 December 2013 the defendant’s authorised agent rejected the first claim on the basis that the plaintiff had not sustained an injury arising out of or in the course of her employment[6]. The defendant pointed to the following matters referred to by the authorised agent in support of the decision to reject the plaintiff’s first claim:
[6] Ex P8
·Clinical notes from the Altona Super Clinic[7] from 23 August 2013 which included a CT scan of the plaintiff’s cervical spine dated 27 August 2013 which although noting degenerative change, found no nerve compression or disc pathology and no significant abnormality.
[7] The place from which the plaintiff’s general practitioner Dr Hester Freeman conducted her practice
·Dr Freeman who on 29 August 2013 noted that the plaintiff had been undertaking reduced lifting at work and that her symptoms were better.
·Dr Freeman who on 1 November 2013 noted that the plaintiff’s symptoms had improved whilst on an overseas holiday.
·Dr Freeman who noted on 15 November 2013 that despite not lifting coins as part of her work duties, the plaintiff was still having pains and headache[8]s.
[8] The manner of duties the plaintiff performed after September 2013 avoided the use of the affected areas in the ongoing manner utilised prior to then.
7.The plaintiff ceased work with the defendant in December 2013[9].
[9] In the course of the hearing there was some issue and questions asked of the plaintiff as regards any disgruntlement at work and or the handling of her claim. I do not regard such issues as having any probative work to do in the resolution of the issues in conflict
8. On 27 May 2014 the plaintiff lodged a “further claim” for compensation pursuant to s 103 of the Act[10]. The further claim attributed the plaintiff’s injury to “repetitive lifting of coin bags multiple times per day” and that the injury occurred whilst performing “Teller One duties” and that she was working in the “customer/public access area” of the bank when injured. She fixed the date of injury as “approx. Sept 2013” and also recorded having reported the matter to her employer at about this time. The plaintiff in response to the question of the existence of any other condition or injuries wrote, “minor aches and pains which have stemmed from my carpal tunnel being to my ® hand/wrist”.
[10] Ex P4
9. On 23 June 2014 the defendant rejected the further claim also on the basis that the plaintiff had not sustained an injury arising out of or in the course of her employment[11]. In addition to the material to hand and relied on by defendant as the basis for the rejection of the first claim, the defendant’s authorised agent identified the following further information comprising:
[11] Ex P5
·a report of the plaintiff’s treating practitioner, Dr Freeman dated 7 January 2014
·a right shoulder and trapezius ultrasound, radiology imaging Solutions dated 12 February 2014
·a nerve conduction study report Dr David Freilich dated 14 February 2014
·an MRI, Capital Radiology, 4 March 2014
·a medical report of Dr Hester Freeman dated 21 March 2014
·a supplementary reports of Mr Clive Jones dated 25 March 2014 and 5 April 2014
10. On 12 March 2015 the plaintiff lodged a claim for Impairment Benefits pursuant to s 98 C of the Act for injuries sustained in the course of her employment the particulars of which are “RIGHT SHOULDER INJURY” (“the s 98C claim”)[12].
[12] Ex P6
11. On 30 March 2015 the defendant’s authorised agent rejected the s98C claim on the basis that it was not satisfied the plaintiff sustained a work related injury to the right shoulder[13].
[13] Ex P7
12. The plaintiff claims that she is incapacitated for employment from the period December 2013 to date and that her incapacity is continuing and her incapacity for employment results from or was materially contributed to by the injuries. Furthermore, at the date of hearing the plaintiff claims to be incapacitated for employment with no current work capacity and which is likely to continue indefinitely.
13. On the first day of hearing the plaintiff amended the Statement of Claim to add the specific lifting incident of injury of August 2013. As will be seen from the reasons that follow, the probable occurrence of an injury occurring in August 2013 became of signal importance in the plaintiff’s conduct of the proceeding.
14. The plaintiff seeks declaratory relief that the decisions of 3 November 2013 and 23 June 2014 are invalid and should be set aside together with an order that the defendant pay weekly payments of compensation from September 2013 in accordance with the Act. An order is also sought for the defendant to pay the plaintiff’s reasonable medical and like expenses in respect of her injuries in accordance with s 99 of the Act. Furthermore, the plaintiff seeks a declaration of liability for permanent impairment benefits in regard to the right shoulder in furtherance of the s 98C claim.
The Defence
15. The defence to the proceeding relies on an insufficiency of proof to make good the plaintiff’s claimed injury arising from her employment. The plaintiff carries the burden of proof of the essential elements of her claim and the standard of proof is the balance of probabilities. The defendant says that the plaintiff’s incapacity for work does not result from and is not materially contributed to by an injury arising out of or in the course of her employment and furthermore that she has not suffered an injury by way of gradual process over time due to the nature of her employment.
16.The plaintiff was represented by Mr Dunstan of counsel and the defendant by Mr Chamings of counsel.
The plaintiff
17. The plaintiff was born on 11 May 1958. She had a period of employment with the ANZ bank of about 11 years from the age of 30 to the age of 41. At age 41 she obtained employment for a 4 years with a firm of accountants and when it was taken over in 2002 she ultimately came to employment with the defendant initially full-time but in 2004 she became a permanent part-time employee and worked Mondays, Tuesdays and Wednesdays between the hours of 8:45 am and 5:15 pm. She also worked every other Saturday.
18. The plaintiff participated in making a statement[14] to an investigator in relation to the administration and management of the first claim. In the course of her cross-examination the plaintiff adopted the statement dated 24 November 2013 as true and correct. From it the following facts emerge including:
[14] Ex D1
· The plaintiff was employed as a CSO. Her duties include serving customers, counting money, completing paperwork and assisting customers with their enquiries.
· One of the plaintiff’s duties was to prepare coin and notes for security collection. This required her to collect the money and put away notes and coins. She said she would perform this work once per week. Later the duty was rotated amongst other staff.
· Prior to June 2013 the counters at which she worked were high and it was necessary for her to get on her chair and pull herself into the counter. She had to do this many times each day. She said it involved pulling herself along with her chair to perform the tasks.
· She said her role included counting volumes of cash adopting a repetitive action with her right hand. She said it was the practice of counting cash manually prior to June 2013 during which time there were no counting machines in use.
· She described a daily task of manually weighing on a scale large coin volumes brought into the bank by customers and then placing them into calico bags and carrying the same to an old safe. She said the old safe was stacked vertically with four or five compartments which required her to stretch up to place or retrieve coin bags and notes. She said the notes were always located on the very top shelf. She said the coin was heavy and required physical effort for her to retrieve the same from its place in the safe.
· The plaintiff said that on 12 April 2011 she first noticed a sharp pain between her forefinger, thumb and the wrist of her right hand. She said she noticed the pain when she was counting cash. She said she completed the Incident Report[15] but continued working and that from that time onwards the pain would come and go.
[15] See Ex P1
· In June 2013 the bank branch was renovated and a number of aspects associated with her work changed including the process used for coin and note collection. The new process included the introduction of note counting machines. Manual handling of paper money was thus avoided. The position of Teller Number One was rotated between all staff. The plaintiff said that as well a direction was issued to staff that a trolley was to be used to transport the coin.
· The plaintiff described the duties as Teller Number One. This required her to empty the coin machine when calico collection bags became full. To do so she would unlock the coin machine and bob down, lift up the bags of coin and carry the same to the rear of the branch. The plaintiff said that when required to undertake this task the pain in her hand, wrist and arm extended up her arm to her right shoulder and would remain for some time before easing. She said as well that it was at about this time that she noticed her hand going numb and as well she would feel tingling every now and again.
19. In August 2013 the plaintiff visited Dr Hester Freeman her treating doctor because of the extent and severity of pain and that she initially attributed as a possible heart attack. She experienced pain and tingling down her arm, pain in her right shoulder and she couldn’t move her head.
20. The plaintiff’s viva voce evidence conformed to a considerable degree with her statement. The plaintiff said that following on from the refurbishment of the bank branch in July 2013 she was repeatedly handling bags of coins that needed to be emptied from the coin machine and then carried some 15 metres to the safe. She estimated each bag weighed between 6 to 11 kilograms. She said she did this 2 or 3 times a day and sometimes she would carry 3 calico bags and nurse their combined weight along her lower arm.
21. The plaintiff said that a couple of months after the refurbishment (that is, to say, in about August 2013) the pain she had previously experienced in her right hand and wrist was aggravated as a result of a specific incident when she bent to pick up coins and felt a sharp pulling pain in her back with pain radiating down her right arm. She said she continued to work hoping it would right itself.
22. A short time after this alleged incident and in late August 2013 the plaintiff recounted having finished showering one morning and feeling pain so severe that she thought she was having a heart attack. She attended Dr Freeman on 23 August 2013.
23. The plaintiff returned to work and the Incident Report dated 2 September 2013 was completed[16]. The Incident Report made no mention of the specific lifting incident.
[16] Ex P2
24. As a result of the plaintiff having completed the Incident Report she was allocated light duties and from about September 2013 the use of her right arm and hand in coin carrying tasks was avoided. She served customers and was not involved in lifting coin bags, and was able to work at her own pace. She said she utilised her left hand when undertaking tasks such as telephoning customers as part of her duties.
25. The plaintiff continued to consult Dr Freeman with complaints of worsening pain in her right shoulder region. The plaintiff said that in December 2013 her right shoulder pain was very severe.
26. The plaintiff’s investigation and treatment included an ultrasound of the right shoulder on 12 February 2014 and hydrodilation in July 2015 that provided temporary benefit and 2 cortisone injections that she said offered her no relief.
The plaintiff cross-examined
27. A good deal of the cross-examination of the plaintiff was directed at matters that were ultimately relied on by the defendant to challenge the occurrence of the single incident event of about August 2013. In short compass the defendant pointed to an absence of contemporaneous corroboration.
28. The plaintiff was directed to the further claim dated 22 May 2014[17] which was expressed to be for right shoulder/neck. The description she gave was of “repetitive lifting of coin bags multiple times per day” with the date of occurrence given as “approximately September 2013”. The claim did not include a reference to a single incident of injury.
[17] Ex P4
29. Mr Chamings questioned the plaintiff about the mechanics of discharging her duties. She agreed that her duties could be undertaken either seated or standing. She spoke of working at an adjustable seat with a foot ring and working at a computer screen and keyboard. She agreed there was rotation with other staff in the role of Teller Number One with responsibility for bulk coins. She estimated being rotated through that duty about once a month.
30. The plaintiff said that there were occasions that she was required to make manual entries into a passbook account as part of her duties. She said the bulk of her work involved serving customers. When it was suggested to her that her work involved minimal reaching, she replied, “not necessarily”.
31. Although in December 2013 having ceased work the plaintiff said she continued to experience right shoulder pain and when asked by Mr Chamings to characterise the pain, she described it being of the same type she experienced on the day of the alleged lifting incident in August 2013.
32. In relation to the coin bags Mr Chamings estimated the weight to be 6.5 kg for the two dollar coin bag. The plaintiff disagreed and said that in her estimation the weight of the bags was between 6 and 11 kg. She accepted that she could use a trolley to carry the coins. She said that she would need to empty the machine 3 to 4 times per day.
33. The plaintiff was asked about her statements made to Dr Bloom an occupational therapist. He recorded that in 2011 the plaintiff had symptoms in her right wrist and pins and needles and numbness and she was woken at night. According to Dr Bloom the main problem however was the right neck and shoulder.
34. The plaintiff was directed to the report of Dr Freeman dated 23 August 2013 in which she recorded that for the last few weeks the plaintiff has “pain in the right arm, pins and needles in the hand and numbness in the arm pain now in back of neck and shoulder”. The plaintiff agreed with Mr Chamings that the account by Dr Freeman did not include a complaint of a specific incident.
35. In regard to Dr Freeman’s record of entry of 29 August 2013 when the plaintiff was again seen for the results of a CT scan there was no reference to a specific incident.
36.On 1 November 2013 Dr Freeman reported in relation to the plaintiff’s symptoms that they are “worse at work”.
37. The plaintiff agreed that currently her neck is of no problem. She said that physiotherapy helped her but only temporarily and that she received only temporary assistance from steroid injections into her right shoulder.
38. The plaintiff agreed that Dr Freeman had referred her to Dr Frank Lin and that he had told her that her symptoms were not unusual for a lady of her age.
39. Despite the fact of not having worked since December 2013 the plaintiff said that she continued to suffer pain. She said the right shoulder pain was the same as she experienced “the day I lifted that bag of coins”.
40. On 15 November 2013 the plaintiff told Dr Bloom, that she was upset as a result of a telephone call from the authorised insurer. The plaintiff said she told Dr Bloom that she was very angry with her employer for the way she had been treated however on 1 November 2013 she was recorded as having told Dr Freeman that work supervisor was very supportive. The plaintiff said that she ceased work in December 2013 on the recommendation of the union and physiotherapist.
41. Monica Lobo is a physiotherapist. She has recorded that the plaintiff’s account was of pain from the hand up to the shoulder which is a different account to that of the plaintiff of the pain coming from her hand.
42. Mr Chamings suggested that the plaintiff’s reliance on a single incident did not eventuate until she had seen solicitors who had recommended the plaintiff consult an orthopaedic surgeon.
43. Associate Professor Ek saw the plaintiff on 24 November 2014 took a history of her leaning over “to grab a bag which she recalls being relatively heavy and then experiencing a pain in the back of her right shoulder”. When Mr Chamings suggested to the plaintiff that 24 November 2014 is the first reference recoded to a single lifting incident she replied, “if you say so”.
The medical reports
44.The plaintiff adduced the following medical evidence:
45. Dr Bloom examined the plaintiff on 24 August 2014 and provided a written report dated 26 August 2015[18] to the solicitors for the defendant. Dr Bloom’s report makes reference to the specific incident and he notes that:
[18] Ex D2
“She said that some time, probably early in August 2013, she bent over to lift a calico bag of coin off the floor by the coin counting machine, and whilst straightening with the bag on her right hand, she experienced a pulling sensation and sharp pain in right shoulder area. She indicated the area behind the right shoulder/trapezius muscle. She also indicated that the pain was spreading into the right side of her neck. She said that initially she did not take much notice of this and continued working.
… that approximately two weeks later, after her shower one morning, she experienced very severe pain behind the right shoulder. This time the pain was radiating down into the right upper arm and included the elbow and possibly beyond.… She said, “I thought I was having a heart attack”. She saw her doctor, who referred her for a CT scan of the neck. She remained at work.
She underwent surgical treatment for right carpal tunnel syndrome in 2014. She said that this operation resolved the majority of the pins and needles and numbness affecting her fingers, but did not resolve the pain at the base of her right thumb and wrist.
… She has also undergone two injections of steroid into the right shoulder under ultrasound guidance that did not afford any significant relief of symptoms and said that she was also treated with hydrodilation that only help relieve her symptoms for a period of six hours. “
46. Dr Bloom referred to the CT of the cervical spine of 26 August 2013 and the radiology conclusion expressed in that report which was that “no significant abnormality is being demonstrated”. He also referred to the ultrasound of the right shoulder and trapezius muscle undertaken in February 2014 and the conclusion expressed in relation to the same that:
“Partial thickness tear of the subscapularis and supraspinatus. Bursitis and bursal bunching and tendon impingement. The right and left trapezius are comparable. No obvious tear or fluid collection”.
47. Dr Bloom also had regard to the nerve conduction study report of 14 February 2014 reported by Dr Freilich Neurologist, as follows:
“The findings of those are of a right carpal tunnel syndrome”.
48.Dr Bloom reported on the MRI of the cervical spine of March 2014 from Dr Fleming radiologist which concluded:
“No significant cervical pathology is seen”.
49. Dr Bloom as well reported on the MRI scan of the right shoulder of 4 December 2014 from Dr Robert radiologist which concluded in the following terms:
“1. Under surface fraying of anterior supraspinatus tendon with split tear extending into the mid fibres. No full thickness tear identified.
2. Associated subscapularis tendinosis with subdeltoid bursal thickening
3. Mild/moderate acromioclavicular joint mechanical change with cystic change at the humeral head/neck junction suggesting a degree of impingement
4. Only minor fraying of the anterior labrum. The superior labrum and posterior labrum appears intact.”
50.In summarising the plaintiff’s history and her presentation, Dr Bloom wrote:
Mrs Markovski ceased all work in or about December 2013…
…
Since cessation of all work well over 18 months ago, Mrs Markovski symptoms have significantly progressed and worsened. She now presents with total dysfunction of her right upper limb/shoulder characterised by chronic pain and inability to move her right shoulder. Extensive medical imaging has excluded cervical spine pathology as a cause of her symptoms and the medical imaging of her right shoulder has simply identified degenerative changes in the rotator cuff that are consistent with a woman of this age. In other words, the degenerative changes that have been reported by the MRI scan are the sort of changes that are very frequently seen in people of this age group, and are also seen in asymptomatic individuals. In my opinion, these changes noted on MRI scan of the right shoulder should not be confused with injury.
This woman’s presentation today is fairly typical of chronic regional pain syndrome, inasmuch as the extent of her perceived pain and disability is regarded as somewhat disproportionate and therefore cannot be explained fully in terms of physical injury or condition. I think it is quite likely that she has pathology in the right rotator cuff and that this pathology is resulting in some dysfunction-and possibly adhesive capsulitis, but I think that she is experiencing amplification of her pain as a result of adverse psychosocial factors. I also think it is likely that because of her resulting avoidance behaviour, any possible adhesive capsulitis is actually worsened rather than improved with time.”
51. As regards her employment duties Dr Bloom said it was difficult to get a clear picture of the amount of physical activity involved and in particular the extent an amount of reaching an elevation under load. He did report however on the plaintiff’s account of her duties as a CSO which was that for most of the time she served customers at a counter, either in a standing or seated posture. Dr Bloom suggested that such work would not be physically very demanding and would not involve any work above shoulder height. Dr Bloom’s assessment was not contrary to the plaintiff’s own evidence. Dr Bloom referred to other duties such as the counting of coins and notes prior to June 2013 when money counting machines were introduced after the refurbishment of the branch and he also referred to the need to lift and carry bags of coin with a weight given of between 6 and 11 kg[19]. He mentioned that the plaintiff repeatedly said she had to carry bags of coin across to the back of the bank. Dr Bloom assumed that the plaintiff would carry such bags with her elbows close to her side, and that in his view, if her arms were close to her sides then minimal stress to the shoulders would be involved. However, he acknowledged that if the manoeuvre involved carrying the weights with her arms outstretched, that might be consistent with shoulder strain. The plaintiff’s evidence did not suggest that she adopted such a lifting mechanism. Dr Bloom also mentioned that the plaintiff said that she was involved in a good deal of coin counting and she also identified how she counted notes using the fingers of a right hand their elbows flexed and low. Dr Bloom said he did not gain the impression that this activity resulted in any gripping of a sustained nature with the wrist in any awkward posture.
[19] The evidence as to weight varied
52. Dr Bloom’s report addressed what he described as a gradual and spontaneous onset of symptoms affecting both the right hand/wrist and the right shoulder and that the symptoms in regard to right shoulder were first noted in April 2011. He recorded however that as at the date of his examination the plaintiff said she had experienced a sudden exacerbation of symptoms in her right shoulder in early August 2013 when lifting a bag of coins off the floor. She also gave an account of the extreme pain she felt some two weeks after that event when exiting her shower and her fear that she was having a heart attack.
53. Dr Bloom regarded the right hand/wrist condition as one that may very well have been associated with the plaintiff’s carpal tunnel syndrome. He reported that that had been dealt with surgically with a good outcome and there were presently no clinical signs of the syndrome. He noted the plaintiff continued to complain of pain affecting the base of the right thumb and right wrist. Dr Bloom was unable to identify any obvious pathology although he accepted there was some tenderness overlying the first carpometacarpal joint, which he implied may involve the possibility of degenerative osteoarthritis in the joint.
54. Dr Bloom reported that the primary and most striking aspect of the plaintiff’s presenting condition related to dysfunction of the whole of her right upper limb and mainly the right shoulder, characterised by a perception of severe pain and immobility. He wrote that the clinical picture “is one of severe dysfunction of the right shoulder and the restricted range of movement in all planes would be consistent with adhesive capsulitis. There is evidence of degenerative changes in the rotator cuff of the right shoulder consistent with her age of 58 years”. However, he said that the degeneration would not explain the extent of her perceived pain and disability. He went on to say:
“Thus in my opinion this woman presents with a chronic regional pain syndrome, implying that her perception of pain and disability is disproportionate and has been amplified as a result of adverse psychosocial factors. That is not to say that she does not have dysfunction of right shoulder - it is to say that her perception of symptoms and disability is likely to be significantly amplified, and is very difficult to explain in terms of any underlying pathology”.
55.Attached to a Dr Bloom’s report was a detailed work site visit assessment report dated 26 August 2015.
56. Mr Clive Jones is an Orthopaedic Surgeon. He has made reports dated 4 December 2013, 25 March 2014, 5 April 2014, 11 November 2014 and 6 November 2015[20]. Mr Jones examined the plaintiff on 27 November 2013 and 6 November 2014 for the purposes of his medico-legal reports that followed. He said that at the time he came to examine the plaintiff the refurbishment of the bank had occurred.
[20] Ex D3
57. Mr Jones was unable to relate the plaintiff’s neck and arm problem to her employment. In his report dated 25 March 2014 he noted that there been an identification of some shoulder pathology and as well carpal tunnel syndrome. However, he thought the plaintiff’s symptoms not typical of carpal tunnel. He conceded the possibility of some median nerve compression and shoulder tendonitis. By the date of his third report, Mr Jones had received a report from Dr Freeman and he addressed the matter of the carpal tunnel syndrome. He said he regarded carpal tunnel as a constitutional condition and one very common in females of the plaintiff’s age. He said that the plaintiff’s presentation is reasonably common in 15% of the population aged over 50. He addressed the shoulder pain and referred to the ultrasound diagnosis of a partial rotator cuff disruption something also common for a person of the plaintiff’s sex and age and “not necessarily related to…employment”. When the last report was prepared Mr Jones had the benefit of having seen the earlier MRI of the plaintiff’s shoulder taken on 4 December 2012 that described an “under surface fraying of the anterior supraspinatus tendon” and he regarded the existence of same as “relatively longstanding”. He did not think them consistent with trauma. The reports by Mr Jones did not refer to the alleged single incident event.
58. Monica Lobo physiotherapist saw the plaintiff and provided treatment. In a letter to Dr Freeman dated 7 December 2013[21] she wrote that the plaintiff “has always suffered from pain in her right hand and forearm. However recently she reports that her pain has moved up to her upper back and neck ad is causing her headaches. Her referred pain is now worse with her entire right upper limb feeling numb and heavy”. In a report from Ms Lobo to the plaintiff’s solicitors she wrote that she first saw the plaintiff in November 2013 with complaints of “pain and gross limitation of movement in her neck with radiation down to her right hand and headaches over the past week”. Other pain experienced by the plaintiff was described as “a string being pulled from her first webspace in the hand, into the forearm and to the back of her shoulder and into her neck”. Ms Lobo mentioned historical right hand pain that the plaintiff associated with repetitive manual money handling counting but that the pain had settled and the plaintiff had not sought or obtained treatment. Ms Lobo reported that in the last two years the plaintiff’s pain had moved up her forearm, arm and extended to her neck. The plaintiff complained that picking up coin bags in the coin machine had made her neck or worse. Ms Lobo referred to a nerve conduction study from February 2014 indicating signs of carpal tunnel syndrome together with the ultrasound of the plaintiff’s right shoulder in February 2014. Ms Lobo referred to the plaintiff having attended a pain specialist, having undergone surgery for the carpal tunnel and having indicated that it provided little or no relief.
[21] Ex D7
59. Ms Lobo regarded the relationship between the plaintiff’s presentation and her work has one that was highly likely given the “repetitive nature of her work that has resulted in the tears in her right shoulder and wrist injury.”
60.Ms Lobo made no reference to the specific single lifting incident.
61. Dr Dush Shan is a consultant psychiatrist who examined the plaintiff at the request of the defendant’s solicitors on 20 October 2015[22]. Relevantly the history he took when he examined the plaintiff on 20 October 2015 included:
[22] ExD4
“She also explained that the injury in 2011 was a carpal tunnel condition which did not cause her to cease work.
It was in 2013 that she developed severe pain in the right shoulder through lifting bags of coins…
One day she woke up and her shoulder was frozen. She went to see Dr Hester Freeman…”
62.The history recorded by Dr Shan does not contain a reference to a single incident.
63. Mr Frank Lin is a Plastic and Reconstructive Surgeon. He wrote to Dr Freeman on 1 April 2014[23]. He recounted a history and after traversing the descriptions of pain the plaintiff was said to have experienced he said that:
[23] Ex D6
“This is not an unusual set of symptoms from middle-aged lady and quite a significant proportion of people with first CMC joint osteoarthritis will exhibit some degree of carpal tunnel syndrome at the same time.”
64.Mr Lin’s report is silent as to the alleged single lifting incident.
65. A report of Ms Frankie Mullen (Western Health) physiotherapist dated 21 July 2015[24] provided to Dr Freeman in response to Dr Freeman’s referral of the plaintiff on 12 March 2014 for right shoulder pain does include reference to a specific lifting incident. Ms Mullen recorded an account that the plaintiff felt “a sharp pull and pain in her right upper trapezius area when she lifted a bag of coins out of a machine at work in August 2013. She kept working but noticed the pain increased over a few days to the point where within a few weeks she was restricted by pain”.
[24] Ex P20
66. Mr Stan Schofield is an Orthopaedic Surgeon and examined the plaintiff at the request of the plaintiff’s solicitors on 17 March 2015[25] . He made no reference to the single lifting incident advanced by the plaintiff.
[25] Ex P16
67. Dr Steven Jensen specialises in musculoskeletal pain medicine. He wrote to Ms Lobo and Dr Freeman on 13 June 2014. He said that he examined the plaintiff on 10 June 2014. He said that her MRI was normal. He believed her pain to be neuropathic and although he would have also treated her ‘initially as a cervical radiculopathy…her MRI refutes that diagnosis’. He wrote furthermore that it was “interesting that her initial injury seemed to be to her wrist and then the pain moved approximately. Whilst radicular pain syndromes do classically concentrate distally initially, I am not sure what our working diagnosis is with Marija now. I do acknowledge that she probably does have a rotator cuff injury given she had a very good local anaesthetic response from the subacromial injection. However, I pointed out to Marija that this does not usually cause neuropathic quality pain, nor does it refer proximal to the shoulder along the trapezius muscle. It can give pain over the deltoid and really to the distal upper limb”.
68. Dr Jensen in response to a Conciliation Progress Certificate wrote a medical report and sent the same to the Accident Compensation Conciliation Service dated 30 September 2014[26]. He noted that the plaintiff was referred to him by Dr Freeman and physiotherapist Ms Lobo. He said he first saw the plaintiff on 2 June 2014. He reported the plaintiff’s history of injury in the following terms:
[26] Part Ex D5
She told me she initially completed an incident report form at work in 2011. She described the circumstances of this as being the manual counting money and developing the slow build-up of pain in the first dorsal interosseous space and thenar eminence of her right hand. This pain subsequently referred to the distal and volar forearm. She said at that stage the pain would occasionally shoot up her right arm to the shoulder would be associated with headaches. There was no tingling or altered sensation in her right upper limb at that point in time.
She reported a further incident in approximately September 2013. She said she was in charge of the coin machine at work. Her duties included having to empty this machine and this involved bending down to pick up bags of coins, close the machine and then carry the bags of coins to a secure area, which she estimated to be about 12-15 metres away. She complained this was too heavy for her but was told to just ‘give it ago’. On the day of this reported incident she picked up the bags of coins and felt pain in the right shoulder girdle. In demonstrating exactly where this pain was she pointed to the lower part of the right side of her neck and adjacent trapezius muscle. She said following the incident her whole arm was hurting with a shooting quality pain downwards maximal over the shoulder girdle. She said this pain was different to the pain she’d suffered in her thumb and forearm previously.
She said she saw her general practitioner who arranged for some nerve conduction studies and she said she was found to have neurophysiological evidence of right carpal tunnel syndrome. She was also referred to physiotherapy.
69.In addressing the plaintiff’s employment to her condition Dr Jensen wrote:
Whilst the diagnosis remains elusive, it is somewhat speculative as to whether employment has or has not been a significant contributing factor to this lady’s current medical condition. However, there does seem to have been two reported incidents that this lady informed me were documented on incident report forms at work, the most recent of which was September 2013, resulting in the onset of her neck and neuropathic arm pain and thus there does seem to be a temporal relationship between the onset of symptoms and her employment.
70. Dr Jensen also reviewed the plaintiff on 9 September 2014 following her overseas trip. He wrote to Dr Freeman on 10 September 2014 that the plaintiff appeared to cope with her prolonged trip away however found the plane travel “somewhat arduous”. After some consideration noted in his letter that he elected to have the AC-joint injected under ultrasound guidance.
71.Dr Jensen thought the plaintiff might have chronic pain syndrome.
Dr Freeman
72. Dr Freeman testified and was cross-examined. She was directed to her clinical note dated 23 August 2013 in which she recorded that the plaintiff had over the period of the last few weeks or longer been experiencing pain in her arm and numbness pain now in back, neck and shoulder repetitive action work processes. Dr Freeman agreed that the imagining undertaken of the plaintiff on 27 August 2013 was clear and agreed with the suggestion put to her by Mr Chamings that it appeared consistent with carpal tunnel syndrome. She agreed that she had not recorded a single historical incident of lifting as now recounted by the plaintiff. She said that the plaintiff’s neck condition was “not entirely consistent with carpal tunnel”. Dr Freeman said that carpal tunnel syndrome as far as a work relatedness is concerned is difficult to connect but that the plaintiff presented with her symptoms after[27] work. Dr Freeman regarded this temporal connection as important in her attributing the onset and development of the same to the repetitive nature of the plaintiff’s work as a CSO. However, Dr Freeman subsequently conceded that the plaintiff’s work as a CSO is “probably not causative of carpal tunnel syndrome”.
[27] My underlining
73. Dr Freeman agreed with Mr Chamings that she had anticipated a resolution of the plaintiff’s condition and of her returning to work.
74. The plaintiff mentioned her shoulder on first examination by Dr Freeman with the point of origin of pain as the neck. Dr Freeman said that it was most likely in November or December 2013 that the first connection was made to the shoulder injury which prompted investigation with an ultrasound performed in February 2014 of the right shoulder.
75.Dr Freeman maintained that she did not believe the plaintiff is fit for work because of pain in arm or shoulder.
76. In re-examination Dr Freeman said that she believed from the plaintiff’s history that she had no shoulder pain since the change in her work activities and that in her opinion her condition is work-related. She said that if as a matter of fact the plaintiff suffered the specific incident then it would increase the probabilities of her condition being work-related.
77. Dr Freeman was taken to her clinical notes and a number of entries. She was directed to an entry for 23 August 2013 in which she recorded the plaintiff having indicated that for the last few weeks or longer she was getting pain arm numbness pain now in back neck and shoulder repetitive action work processes.
78. It was suggested to Dr Freeman that the plaintiff’s symptoms were in a woman of her age suggestive of carpal tunnel. Dr Freeman did not agree as regards the arm and said she had considered the likelihood of an impingement however imaging on the 27 August 2013 showed no indication of the same and, accordingly, she agreed with Mr Chamings that the plaintiff’s presentation appeared consistent with carpal tunnel syndrome.
79.Dr Freeman acknowledged that she had not taken any account of a single incident.
80. A number of other attendances by the plaintiff on Dr Freeman were identified namely on 1 November 2013 and 15 November 2013 in which the plaintiff expressed some upset at having been contacted in relation to her work cover claim. On 17 December 2013 an entry identified the plaintiff having seen her physiotherapist and having spoken with someone from her union.
81. Dr Freeman said she anticipated a resolution from the plaintiff’s perspective and her returning to work. She referred the plaintiff to Dr Jensen. She said she thought the plaintiff might have laboured from a chronic pain syndrome of some sort.
82. In regard to carpal tunnel Dr Freeman accepted that work relatedness of the condition is difficult to connect but she placed emphasis on the fact of the plaintiff’s presentation with symptoms following work activity. However, and ultimately, she adopted the position that the plaintiff’s work was “probably not” causative of carpal tunnel.
83. Dr Freeman was re-examined. She said the pain traversing from neck to the arm was not consistent with carpal tunnel.
84. She said as well that the lifting of coins on the day alleged could amount to an aggravation of her pre-existing injury.
Professor Ek
85. Professor Ek is the Clinical Associate Professor at Monash University. He is an Orthopaedic Specialist in hands and upper limbs and conducts a practice in Windsor. He prepared two reports dated 24 November 2014[28] and 8 December 2014[29]. He testified.
[28] Ex P13
[29] Ex P14
86. Professor Ek said the plaintiff’s symptoms met the classical diagnosis for carpal tunnel syndrome. He regarded her shoulder sensitivity to be consistent with her age. Professor Ek agreed with Dr Jensen’s assessment that the plaintiff suffers a pain syndrome.
87. Professor Ek however was not willing to accept that that the plaintiff’s changes apparent on MRI could not be attributable to a single trauma such as the alleged lifting incident of August 2013.
88. Professor Ek when asked to explain why the plaintiff’s pain had not resolved or diminished following ceasing work in December 2013, he said that in some instances this will occur whereas in others it will not.
89. Professor Ek placed no significance in terms of causation to the plaintiff’s account of pain associated with the shower incident in which she thought she might have been experiencing a heart attack.
90. In re-examination Professor Ek said that the plaintiff’s presentation was consistent with background degenerative changes and underlying symptoms which could then become symptomatic.
Kelly Paten
91. The defendant adduced evidence from Kelly Paten. She is a CSO employed by the defendant had the Altona branch of the Bendigo Bank. She has been employed for a period of approximately 13 years and worked with the defendant in its various iterations and knew well the plaintiff sating that the two of them had worked together during the course of a given working week. She said she was familiar with the plaintiff’s work. She said that in about September 2013 she recalled the plaintiff mentioning a sore arm, shoulder and wrist.
92.Ms Paten said she had no recollection of the plaintiff making any complaints about lifting bags of coins.
93. Ms Paten said that up until December 2013 the work of a CSO was performed at counters. The work was effectively customer focused.
94. She was asked about the operation of the coin machine and the duties of Teller Number One. She said staff were rotated into that position but she also said the rotation was quite irregular. She estimated the weight of bags of coins at between 4 and 6 kg. She said the distance required to convey the coins to the safe as about 20 metres. She said the frequency of taking bags of coins to the safe was in the order of 3 or 4 times per day. Ms Paten characterised the plaintiff as honest and genuine.
The course of employment
95.Has the plaintiff established on the balance of probabilities that:
(i) the asserted injury to her right shoulder arose out of or in the course of her employment with the defendant and that her employment with the defendant was a significant contributing factor;
(ii) that the claimed injury to the plaintiff’s right hand/wrist including right carpal tunnel syndrome arose out of or in the course of her employment with the defendant and that her employment was a significant contributing factor.
96. Although plaintiff’s counsel focussed his submissions on the claimed injury to the right shoulder he did not concede that the right carpal tunnel syndrome was not work related. Of course the plaintiff’s Incident Report of 12 April 2011[30] described injury as, “right hand, arm, shoulder and head”. As to the cause of the injury the report is expressed as, “handling of bulk coin poor design of safe, bending stretching and on knees to get to bottom of safe”.
[30] Ex P1
Carpal tunnel
97. I do not accept the plaintiff’s argument that her right carpal tunnel syndrome was work related. The weight of the medical evidence I have referred to is against such a finding.
The right shoulder pain
When did the onset of pain commence - the specific incident
98. The plaintiff testified that she experienced the onset of pain and symptoms in her right shoulder in about August 2013. She said that in early August 2013 she was emptying a coin machine and bent over and felt a sharp pulling on her shoulder. She said she had never had shoulder pain before and this was pain of a different type to the pain she had experienced to that point in time even though right shoulder pain featured in the 2011 Incident Report. The plaintiff said from that point onwards she has suffered ongoing pain and symptoms in her right shoulder. The Incident Report of 2 September 2013[31] in respect of the time of the incident or injury answered as “ongoing over years”. As to the description of the injury the former is expressed as “over the time of performing my job as CSO, pain in my right hand, fingers and thumb. This pain came and went over time, it then didn’t go away the pain is now in my hand, arm shoulder my right thumb, fingers, hand, arm, shoulder and back (giving me horrible headaches and unable to move my head sometimes)”. In response to the type of injury report states, “soreness/pain in right hand, thumb, finger, arm, shoulder, back. The pain has increasingly worse over the years were it now doesn’t go away, it only gets worse with time. I’ve also noticed it started with my thumb and fingers on my right hand being sore and painful, then my right hand, then arm, shoulder and back. I actually thought I might be having a heart attack a couple of weeks”. As to cause, it is expressed to have been “repetition of the job that I do on a daily basis. I also believe the design of counters and so distance between me and the customer constantly reaching over and turning to the cash”.
99. The plaintiff also points to the first presentation with Dr Freeman on 23 August 2013 and her record which includes a reference to “pain now in back of neck and shoulder”.
100. The plaintiff also relies upon and points to Dr Freeman’s ongoing treatment of the plaintiff and referral for investigations of the right shoulder in the latter part of 2013 and the early months of 2014. The plaintiff also relies upon Dr Freeman’s Workcover certificates of capacity from 17 December 2013 to 18 April 2014 in which the description of injury or disease is expressed as “right arm and shoulder pain-unfit for any duties”. The plaintiff also submits that the pain and symptoms expressed by the plaintiff to her right shoulder is consistent with pathology in the ultrasound of 12 February 2014 as is the plaintiff’s referral by Dr Freeman to the Western Hospital for right shoulder pain in March 2014, the provision of cortisone injections into the right shoulder and Dr Freeman’s referral of the plaintiff to Associate Professor Ek in November 2014. The plaintiff also relies upon the results of MRI of the right shoulder dated 4 December 2014 and Associate Prof Ek’s advice in December 2014 that the plaintiff requires surgery on her right shoulder involving a right shoulder arthroscopic sub acromial decompression, AC joint excision and biceps tenotomy.
101. The plaintiff also points to an absence of evidence that she suffered from any intrinsic pain in her right shoulder prior to the incident at work relied upon as having occurred in August 2013. Furthermore, the plaintiff submitted that her account of the pain from her right hand/wrist going up her right arm and into her right shoulder from April 2011 is consistent with such dearth of intrinsic pain prior to then.
102.Mr Dunstan pointed as well to:
·the evidence of Kelly Paten who said the plaintiff told her in about August 2013 that she had a sore shoulder from work;
·the plaintiff’s report to Dr Freeman on 23 August 2013 and whose notes include, “pain now in back of neck and shoulder;”
·the Incident Report dated 12 April 2011 records pain emanating from the right hand together with a description of injury to the right hand, arm, shoulder and head due to handling of bulk coin et cetera; and
·the plaintiff’s first claim form dated 3 November 2013 described injuries to the right hand, arm, shoulder and bad headaches. The plaintiff’s evidence included that she was having this problem for a few years, “my hand was sore but the pain came and went”. She also said that “the pain got worse and did not go away”.
[31] Ex P2
103. Mr Dunstan submitted that there was a corroboration in a number of pieces of evidence of the plaintiff’s account that she hurt her right shoulder at work lifting a bag of coins in about early August 2013. He suggested that the corroboration was evident in the report of Dr Jensen dated 30 September 2014[32]. Dr Jensen’s report refers to the specific incident but reports that it occurred in September 2013 and not August 2013. Dr Jensen reported that he was “somewhat perplexed by her clinical presentation”. He said that “Clinically I did not think she had carpal tunnel syndrome as her symptoms were not typical of this” but that her “mild neurophysiological changes and median nerve conduction of the wrist can be seen within asymptomatic individuals, especially middle-aged females”. He reported that he was “perplexed as to why she may have initially developed pain over the radial aspect of her wrist back in 2011”. Dr Jensen’s opinion concluded that he felt the plaintiff “was suffering from regional neuropathic pain syndrome without, to this point in time, any identifiable specific pathology”. He expressed a tentative opinion regarding the work connectivity to the plaintiff’s diagnosis. He said, “It is somewhat speculative as to whether employment has or has not been a significant contributing factor to this lady’s current medical condition. However, there does seem to have been two reported incidents that this lady informed me were documented on incident report forms at work, the most recent of which was September 2013, resulting in the onset of her neck and neuropathic arm pain and thus there does seem to be a temporal relationship between the onset of symptoms and her employment”. In relation to that narrative even if I was to accept the factual occurrence nonetheless Dr Jensen remained sceptical of employment amounting to a significant contributing factor.
[32] Ex D5
104. Professor Ek’s report dated 24 November 2014[33] noted that the plaintiff “is a 56 year old bank teller for Bendigo Bank, who presents today for evaluation of her right shoulder which she injured while at work on September 2013. This occurred when she leaned over to grab a bag which she recalls being relatively heavy and then experiencing pain in the back of her right shoulder”. That narrative is of course contestable on the facts.
[33] Ex P13
105. The report of Frankie Mullen dated 21 July 2015[34] recording that the plaintiff “felt a sharp pull and pain in her right upper trapezius area when she lifted a bag of coins out of the machine at work in August 2013.” This report and reference to the incident and its presumed work relatedness is temporal not clinical.
[34] Ex P20
106. The report of Dr Bloom, dated 26 August 2015[35] in which he reported, that the plaintiff “said that her main problem relates to the right side of her neck and her right shoulder. She said that some time, probably early in August 2013, she bent over to lift a calico bag of coins off the floor by the coin counting machine, and while straightening with the bag on her right hand, she experienced a pulling sensation and sharp pain in her right shoulder area. She indicated the area behind the right shoulder/trapezius muscle. She also indicated that the pain was spreading into the right side of her neck. She said that initially she did not take much notice of this and continued working”.
[35] Ex D2
107. In contrast to the specific reference to the single incident in these reports, there is an absence of a report of that incident or like incident to other doctors seen by the plaintiff including, notably and importantly, her treating local doctor. The plaintiff saw Dr Freeman on 23 August 2013 and made no mention of the specific incident but rather the reported note refers to a period of “last few weeks, probably longer, has been getting pain in her right arm and paraesthesia in her hand, sometimes numbness in arm, worse at night, pay now in back of neck and shoulder.”
108. To Monica Lobo her physiotherapist on 25 November 2013 the plaintiff referred to pain “as a string being pulled from her first webspace in the hand, into her forearm and to the back of her shoulder and into her neck”. Although the plaintiff saw Dr Freeman subsequent to 23 August 2013 and up to the time she ceased work with the defendant there is no single incident reported by Dr Freeman.
109. In the report by Mr Frank Lin dated 1 April 2014 there is no mention of the specific incident and neither is it referred to by Mr Schofield.
110. Mr Clive Jones took a history on 27 November 13, 2013 that does not contain a reference to the single incident event.
111. In an effort to overcome the perceived difficulty in plaintiff’s claim of the single event narrative, Mr Dunstan contended that the plaintiff had for a time misconstrued the condition of right carpal tunnel syndrome and the subsequent surgery she had for it, and the right shoulder injury she suffered as a result of the coin bag lifting incident. The likelihood of a capacity to misconstrue or conflate two conditions is a possible explanation but not one I am prepared to make but instead on the balance of probabilities I am not satisfied it occurred.
112. Ms Kelly Paten of course it is to be recalled said in cross examination that at about September 2013 she recalled the plaintiff having mentioned a sore arm, shoulder and wrist but that was all.
113. The plaintiff’s written statement dated 25 November 2013[36] does not contain any reference to a particular episode involving lifting a bag of coins. Rather the account provided by the plaintiff relevant to the pertinent period of time was expressed thus:
“I visited my doctor in early September 2013 because of the pain and I thought I was having a heart attack I had pain and tingling down my arm, I had pain in my right shoulder and I couldn’t move my head. The doctor referred me for a CT Scan and gave me a certificate of capacity with restrictions for two weeks.”
[36] Ex D1
114. The plaintiff’s reference to characterising the pain she experienced as akin to a heart attack, is itself consistent with her account of the pain she felt after she had finished showering. Certainly much else of the contemporaneous documentation belies the account of the single lifting incident, irrespective whether it is said to have occurred in August or September 2013.
115. I do not think it is sufficient in an effort to overcome the inconsistency contained in the plaintiff’s description of how the injury came about to ignore the lack of contemporaneous reporting of the incident involving the lifting of bags of coin and contend that it is sufficient that the plaintiff reported pain and symptoms on the right shoulder as consistent with her reported pain in the shoulder with pain emanating from the right hand by virtue of right carpal tunnel.
116. The alleged incident involving the bag of coins and said to have occurred in August 2013 may be seen as not inconsistent with Dr Freeman’s ongoing treatment and referrals of the plaintiff for investigation for the right shoulder in the latter part of 2013 or in the early months of 2014 but an absence of inconsistence in treatment and further investigation is not positive probative evidence of the occurrence of the single lifting incident.
117. Mr Dunstan intimated that the defendant’s submission at its heart called for the plaintiff’s credibility to be questioned because calling into question her account of the lifting incident in August 2013 struck at her credit and that the veracity of her evidence should be considered in light of what else is known of the plaintiff which is, that by all accounts, she was a dedicated employee. I do not doubt the plaintiff’s work ethic which was volunteered as well by her co-worker who testified. However, that is not to say that it must follow that all evidence will necessarily be accepted at face value. The fact that I have not been satisfied that the incident occurred is to conclude that on a matter of contestable fact I have weighed the plaintiff’s account against the absence of other evidence which I would have reasonably expected to be present had the incident occurred as and when alleged by the plaintiff. The everyday incidence of her work and the association of her work when struck with pain after showering may well account for her evidence. Be that as it may, I am not satisfied the plaintiff suffered a work related injury as a result of lifting a bag of coins in or about August 2013.
118. With respect I do not regard the factors relied on and referred to by counsel as consistent with a specific lifting incident on the preponderance of medical evidence and neither am I satisfied that such an incident occurred. I am not satisfied that the plaintiff has established on the balance of probabilities that the plaintiff’s condition arose out or in the course of her employment. The first claim form completed in early November 2013 and therefore relatively soon after the alleged single incident of August 2013 makes no reference to it. The defendant submitted that there was an abundance of opportunity for the plaintiff to have provided a description of the incident upon which such significance was now placed. Furthermore the plaintiff’s shoulder is not mentioned as a separate or distinct condition in any of the material adverted to. Also in the plaintiff’s further claim dated 22 May 2014 the injury is “right shoulder injury” and this is due to “repetitive lifting of coin bags multiple times per day”.
119. I am not satisfied on the balance of probabilities that the plaintiff suffered the onset of pain and symptoms while at work when picking up a bag of coins in about August 2013 or September 2013. Therefore I am not satisfied as a matter of fact that the plaintiff has established the necessary causation to enable me to find in her favour to the extent that injury is dependent upon that event and relied on by her as an aggravation or the like.
Repetitive work?
120. Has the plaintiff established that the repetitive nature of her work constituted a significant contributing factor to the existence of her undoubted right shoulder pathology? The difficulty for the plaintiff here is that once the incident of lifting a bag of coins in about August 2013 is discarded, much of the medical opinion that occasions work relatedness to her pathology disappears. For example Dr Bloom predicates the plaintiff’s account of symptoms as having commenced when lifted a bag of coins off the floor in early August 2013 in and experienced “a sudden exacerbation of symptoms in her right shoulder”. It is correct that elsewhere in his report Dr Bloom acknowledged that with pre-existing degenerative changes, the underlying condition can become symptomatic in the course of the plaintiff’s normal life and whilst at work with any forms of activity. However, he goes on to say in his report that that his comments ought not to be taken to be that he accepts that the plaintiff’s work activities have caused the current condition despite a temporal association. That temporal association of courses relates to the lifting of the bag of coins which, on balance, I have not found the plaintiff has not established.
121. I am not persuaded that the plaintiff’s duties were repetitive. There was a laxity in description of what that entails in the evidence. The occurrence of an event more than once in a single transaction may aptly be described being repeated but this need not mean the task is a repetitive task. Tasks were repeated in the sense that some were performed on a daily basis but they were not performed repeatedly in one transaction in order to complete or execute the function.
122. The actions needed in undertaking the function coin collection and movement to the safe were repeated but they were not repetitive.
The application of legal principle – “arising out of”
123. The requirement that the plaintiff establish that her “injury” “arise out” of her employment will be satisfied if her employment is shown to have been a cause of the injury. It is not necessary that she establish that the employment was either the sole or the dominant cause of her condition. Because of the nature of the “extended” definition of injury relied on by the plaintiff, she must be able to establish that her employment was a significant contributing factor to it.
Significant contributing factor
124. The words “contributing factor” recognises that an injury may be caused by more than one factor. The inclusion of “significant” means that where there is more than one factor involved and one of them is the worker's employment then its importance needs to be assessed in order to determine if it is a significant contributing factor or not. There may be also more than one factor which is significant and of course one factor may be more significant than another but this does not diminish the question whether employment is a significant contributing factor to the causation of injury. It may be of lesser significance than another but nonetheless satisfy the description of “significant”. There are many statements that have been made in decided cases, the sum total of which are, I venture to suggest, consistent with the generality of comments I have just expressed.
125. In Meddis v. Victorian WorkCover Authority (County Court, judgment 24 April 1996) Judge Rendit said this:
“I consider a broad meaning can only be given to the words 'significant contributing factor' as the facts of each case must be looked at in the light of its own circumstances and an assessment made factually whether the employment was a significant contributing factor to the happening of the injury. In this regard, I consider it means more than de minimis but less than a major or a dominant factor. Indeed, one can have several significant contributing factors which are unrelated but which play their part in the occurrence of the injury. I consider that it is basically a question of fact”.
126. In Allman v. Major Finance and Engineering Pty Ltd[37] Judge Strong described “significant’ as meaning “of considerable amount or effect”.
[37] (County Court, judgment 14 March 1997)
127. Ashley JA has spoken about the area of overlap between the statements of Judge Rendit and Judge Strong and he has said that there is an apparent point of disagreement in that the minimum requirement of the Meddis formulation is that the contribution of employment to injury be “more than de minimis”, whereas the “single requirement of the Allman formulation is that such contribution be ‘of considerable amount or effect’’. Ashley J considered the Allman formulation more accurately reflects what he called, the “sense of the legislation”. As his Honour pointed out, the adjective which parliament chose to insert was “significant” not “material”, nor the phrase “to a recognisable degree” all of which he pointed out, owe their development to different legislative arrangements. Further his Honour said it is an adjective which implies a contribution of greater dimension than that conjured up by such of these other formulations. His Honour stated that that it is important to keep at the forefront of consideration that what will amount to “considerable” in any particular case will, of course, be a matter for determination on the facts and that at a practical, as distinct from conceptual level, the distinction between an employment contribution exceeding de minimis and an employment contribution of considerable amount or effect may be more apparent than real.
The section 5 (1B) factors
128. In deciding whether injury within sub‑paragraph (b) or (c) of the Act has been caused to a worker, the nature of employment is a matter that must be considered: (s.5 (1B) (b) and (c) of the Act). I have already detailed the nature of the plaintiff’s employment undertaken with the defendant. In my view of the evidence the sum result is best reflected in the detailed analysis of Dr Bloom. His evidence and my assessment of the plaintiff’s own evidence and when cross-examined leads me to conclude that the nature of the employment can be discarded as a significant contributing factor or, put another way, to the extent it was a factor, it was not a significant factor.
129. In considering whether employment is a significant contributing factor to injury, paragraphs (e), (f) and (g) of s.5 (1B) direct attention to aspects of the worker or his lifestyle which, where relevant, have contributed to a particular injury. In giving effect to this part of the Act it would be wrong of me to approach the matter on a construction that the paragraphs in question are only relevant where circumstances fitting them were present; in which case those facts would be put in the balance against the worker. The law directs me to be aware that the absence of facts falling within any of those sub-paragraphs may tell in favour of there having been significant employment contribution to injury in a particular case. There was no evidence addressing the plaintiff’s lifestyle. Otherwise the evidence on such relevant factors goes to the duration of the plaintiff’s employment with the defendant which was of some length and I have taken regard of that when I assessed the evidence of the particular tasks associated with her employment with the defendant. However, I as I have already found, I am not satisfied that the work duties amounted to repetitive work or that work amounted to a significant contributing factor. Indeed the plaintiff’s case acknowledged the reality of the position as regards the matter of repetitiveness. I have of course kept in mind the question of probable development of the injury occurring if the employment had not taken place. However, the case here is one in which the plaintiff developed a spontaneous carpal tunnel syndrome and its work relatedness is not made out on the preponderance of the medical evidence and that such of her condition as developed is explicable as a regional pain syndrome. The degenerative changes identified on MRI are according to Dr Bloom, “the sort of changes that are very frequently seen in people of this age group, and are seen in asymptomatic individuals”.
130. I add should if it be thought as not being already evident that I am not satisfied by the evidence that the plaintiff’s carpal tunnel progressed to a recognisable degree and such as there could be regarded an aggravation by reason of her employment with the defendant to which her employment or her employment in or about August 2013 was a significant contributing factor.
131. Furthermore and also for the sake of completeness I am not satisfied that there is a sufficient connection disclosed in the medical evidence to conclude on the balance of probabilities that the work performed in the discharge of the plaintiff’s employment with the defendant meets the description of a recurrence, aggravation, acceleration, exacerbation or deterioration of any pre‑existing injury or disease. In other words, I do not accept the plaintiff’s submission that the plaintiff suffered an aggravation or an exacerbation or a deterioration of a previously asymptomatic degenerative disease in her right shoulder of which the work performed by the plaintiff in or about August 2013 has been a significant contributory factor.
132.The plaintiff’s claim for relief is dismissed. I will hear the parties on the matter of the form of final orders.
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