Marquez v Seventh-day Adventist Aged Care (Greater Sydney) Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Marquez v Seventh-day Adventist Aged Care (Greater Sydney) Ltd [2023] NSWPIC 191
APPLICANT:	Alice Marquez
RESPONDENT:	Seventh-day Adventist Aged Care (Greater Sydney) Ltd
Member:	John Turner
DATE OF DECISION:	28 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; injury to the right shoulder disputed; consequential condition to left shoulder disputed; claim for permanent impairment compensation; claim for weekly benefits compensation; section 4 and section 37; Hancock v East Coast Timber Products Pty Limited and State of New South Wales v Bishop discussed; Held- the applicant sustained an injury to her right shoulder arising out of or in the course of her employment with the respondent with a deemed date of injury of 11 June 2021; the applicant sustained a consequential condition of the left shoulder due to the injury to her right shoulder arising out of or in the course of her employment with the respondent; the applicant has no current capacity for gainful employment; the applicant has had no capacity for gainful employment since 10 June 2022.
determinations made:

The Commission determines:

That the applicant sustained an injury to her right shoulder arising out of or in the course of her employment with the respondent with a deemed date of injury of 11 June 2021.
That the applicant sustained a consequential condition of the left shoulder due to the injury to her right shoulder arising out of or in the course of her employment with the respondent.
That the applicant has no current capacity for gainful employment.
That the applicant has had no capacity for gainful employment since 10 June 2022.

The Commission orders:

I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a.     Date of injury: 11 June 2021 (deemed).
b.     Body systems / parts:
i.Right upper extremity (shoulder)
ii.Left upper extremity (shoulder)
c.     Method of Assessment: Whole person impairment.

The documents to be reviewed by the Medical Assessor are:
a.     Application and attached documents;
b.     Reply and attached documents, and
c.     applicant’s Application to Admit Late Documents signed 29 March 2023.
On the basis of total incapacity, I make the following awards in favour of the applicant pursuant to s 37 of the Workers Compensation Act 1987:
a.     $859.56 per week from 10 June 2022 to 30 September 2022;
b.     $888.53 per week from 1 October 2022 to 31 March 2023, and
c.     $925.31 per week from 1 April 2023 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Alice Marquez, the applicant, was employed by Seventh-day Adventist Aged Care (Greater Sydney) Ltd, the respondent, as full-time care staff commencing employment on or about 5 June 2011.
The applicant pleads that she sustained an injury to her right shoulder on 11 June 2021 (deemed) due to the nature and conditions of her employment which required her to perform repetitive physical tasks including constant lifting. The applicant also pleads that as a result of overusing her left shoulder to protect her injured right shoulder she developed a consequential injury to her left shoulder.
The applicant claims the following compensation:
(a) $834.90 per week from 10 June 2022 to date and continuing, and
(b) permanent impairment compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 24% whole person impairment (WPI) of impairment of both upper extremities.
The parties agreed that the applicant had pre-injury average weekly earnings (PIAWE) of $1,042.63.

ISSUES FOR DETERMINATION

The following issues are in dispute:
(a)    that the applicant sustained injury as alleged to her right shoulder;
(b)    that the applicant suffered a consequential condition of the left shoulder as a result of the alleged right shoulder injury;
(c)    that employment was a substantial contributing factor to any alleged injury;
(d)    that employment was the main contributing factor to any alleged injury, and
(e)    that the applicant suffered from either a total or partial incapacity for work as a result of any alleged injury.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 5 April 2023. Mr Andrew Joseph, counsel, instructed by Mr Andrew Joy, appeared for the applicant, who was present. Mr Tom Grimes, counsel, appeared for the respondent, instructed by Ms Christie Blake. The proceedings were conducted via TEAMS. 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 Personal Injury Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    applicant’s Application to Admit Late Documents signed 29 March 2023 and attached documents.
The respondent did not oppose the admission into evidence of the documents attached to the applicant’s Application to Admit Late Documents signed 29 March 2023. As those documents appeared to be potentially relevant to the issues in dispute between the parties those documents were admitted into evidence.
A brief summary of the evidence follows.

Oral evidence

Neither party sought leave to adduce oral evidence.

Applicant’s statements

The applicant has provided a statement dated 25 January 2023.
The applicant denies any pain or restriction in her shoulders prior to commencing employment with the respondent.
The applicant states that her work duties with the respondent included:
(a)    showering of the residents;
(b)    helping residents to brush their teeth;
(c)    assist with the giving of medication
(d)    helping residents to attend appointments;
(e)    putting residents into wheelchairs;
(f)    assist with the feeding of residents;
(g)    changing residents clothing;
(h)    changing bed linen, and
(i)    putting resident’s nappies on.
The applicant states that the nature of her work duties required her to repetitively engage in physically straining, manual duties, that placed excessive pressure on her right shoulder. It is the applicant’s evidence that her duties involved continuous pushing and pulling, bending, carrying and lifting movements and that she had been engaged in these types of duties for a period of approximately 10 years.
The applicant states that in or around early 2021 she started to notice progressively worsening pain and discomfort in her right shoulder. The applicant reported the symptoms to Anna Linden, a Registered Nurse (RN), on 11 April 2021 who advised the applicant to monitor her symptoms and continue working. Whilst at work on 11 June 2021 the pain in her right shoulder was such that she could not move her right arm or hand at which time she again reported the symptoms to Anna Linden.
The applicant states that in or around July 2021 she first consulted her general practitioner (GP), Dr Janet Widmer, due to continuing right shoulder pain and immobility. Dr Widmer referred the applicant for an ultrasound of her right shoulder which was performed on 13 July 2021.
The applicant states that in or around August 2021 her right shoulder pain continued to worsen and was aggravated by engaging in strenuous activities. Her right shoulder was also swollen and the pain was affecting her sleep. The applicant states that during this time she was over relying on her left shoulder to carry out daily activities and work duties and started to experience aching pain and soreness in her left shoulder. During this time she was also engaging in weekly physiotherapy treatment.
The applicant states that throughout the process of her rehabilitation for her right shoulder injury she developed a consequential left shoulder condition.
The applicant states that throughout late 2021 she continued to place significant pressure on and overuse her left shoulder to avoid using her right arm. The applicant states that she was heavily relying on her left arm and shoulder when cooking, washing dishes, getting dressed and showering. She was unable to wash more than four plates at a time as she would drop the plates due to the exacerbation of her left shoulder pain. The applicant found that her left shoulder pain was aggravated by strenuous activities and repetitive use. The applicant states that she was required to ask her husband to help remove her clothes as she was experiencing pain in both shoulders when trying to lift her arms. She was forced to move slowly and cautiously when showering. She was unable to soap under her left arm without experiencing more pain. The applicant reported these symptoms to her treating GP, Dr Rosemarie Castro, and her physiotherapist however in the consultations with Dr Castro the focus was on her right shoulder.
The applicant states that on 7 April 2022 she first consulted with Dr Danny Tang (GP). The applicant reported to Dr Tang that she had sustained a workplace injury to her right shoulder with deteriorating pain and restriction. The applicant also reported pain and restriction of her left shoulder since she had been over relying on the left arm. The applicant states that Dr Tang was of the opinion that her left shoulder pain was due to overuse.
The applicant states that she continues to suffer from debilitating pain, stiffness and swelling throughout both of her shoulders. She finds that her right shoulder pain radiates into the right side of her neck and causes pain and soreness in her neck. Her shoulder pain shoots down both arms and is associated with tingling and pins and needles sensation in the fingers of both hands. The applicant is unable to lift her arms without experiencing severe pain. It is the applicant’s evidence that she continues to rely on her left side due to unbearable right shoulder pain however she is struggling to use her left arm.
The applicant states that throughout the course of her treatment her condition has not improved and has only worsened.
The applicant believes that she is completely unfit to work her pre-injury duties due to her ongoing pain, stiffness and restriction of both shoulders. The applicant states that her pre-injury duties which involve pushing, pulling, lifting and carrying would severely aggravate her pain. The applicant states that she is unable to drive or sit in a motor vehicle for longer than 20 minutes without experiencing a flare up of her shoulder pain. The applicant believes that she would be unable to engage in administration activities, as activities such as typing and computer work would aggravate her shoulder pain. The applicant states that even using a computer mouse at home causes her pain to flare up. In addition to this the applicant states that she lacks education and experience in an administrative role.
The applicant provided a further statement dated 28 March 2023.
The applicant states that over the course of her employment with the respondent she sustained an injury to her right shoulder and that throughout the process of her rehabilitation she developed a consequential left shoulder condition.
The applicant states that she continues to suffer from pain in both shoulders which she rated at 7 out of 10 for both her shoulders and neck. She continues to experience shooting pain from her shoulders that radiates throughout her shoulders and down her arms. She still gets pins and needles in both hands. She finds it very difficult to lift her arms without experiencing severe pain and she relies on her left side due to the pain in her right shoulder.
The applicant states that her disabilities include constant pain in both shoulders which radiates into the right side of her neck, fluctuating neck pain and restricted arm movement. The shoulder pain and stiffness is aggravated by sitting and walking for extended periods, lifting heavy objects, cold weather and moving her arms. Her right shoulder pain is aggravated by driving or sitting in a motor vehicle. The applicant also complained of loss of arm strength.

Treating medical evidence

On 13 July 2021 Dr Frankie Wong reported on an ultrasound of the right shoulder. Dr Wong observed that the subacromial bursa was thickened with bunching. The doctor found the appearance of the ultrasound to be consistent with subacromial bursitis.
On 20 September 2021 the applicant attended on Dr Castro with right shoulder pain. Dr Castro diagnosed right subacromial bursitis.
On 5 October 2021 the applicant attended on Dr Kieran Garbutcheon-Singh with worsening right shoulder pain. The pain was radiating to the elbow.
A report from Focushealth/Physioclinic Blacktown dated 18 October 2021 records that the applicant had been seen for four sessions over the last two weeks for treatment of right shoulder bursitis. The applicant was having difficulty performing domestic duties, self-care, sleeping and driving. The applicant was assessed as having no ability to carry, hold, lift, push, pull, reach above shoulder height, use the affected body part, perform typing or keying. The applicant could drive for 10 minutes.
A report from Focushealth/Physioclinic Blacktown dated 1 November 2021 records that the applicant had been seen for 11 physiotherapy sessions over the previous six weeks for treatment of right shoulder bursitis. The applicant presented to Focushealth on 6 October 2021 reporting increased right shoulder pain starting in June 2021.
The applicant was having difficulty performing domestic duties, self-care, sleeping and driving.
The applicant had made slow progress with her rehabilitation since commencing physiotherapy. The applicant was assessed as having no ability to carry, hold, lift, push, pull, reach above shoulder height, use the affected body part. The applicant could drive for 15 minutes.
On 3 November 2021 the applicant attended on Dr Castro with right subacromial bursitis with pain and restriction of movement progressing.
On 11 November 2021 the applicant attended on Mr Steevan Slewa who recorded that the applicant presented with right shoulder pain of gradual onset which was aggravated by lifting.
On 24 November 2021 Dr Georges Hazan reported on an MRI of the right shoulder. The doctor observed significant capsular oedema consistent with capsulitis and that a distended subacromial bursa likely indicated associated bursitis.
On 24 November Dr Castro referred the applicant to the orthopaedic surgeon, Dr Manish Gupta. In the referral records that the applicant presented with right subacromial bursitis/frozen shoulder manifested with limited movement and progressing pain. Past history of right subacromial bursitis on 20 September 2021.
On 24 November 2021 the applicant attended on Dr Castro with worsening right shoulder pain and limitation of movement of the right shoulder.
A Workplace Assessment Report by Rehabilitation Services by Altius dated 3 December 2021 records that the assessment identified that the role of carer requires frequent lifting of heavy materials, full function of the upper limbs and frequent pushing / pulling of heavy materials.
The applicant reported that prior to September she was performing her normal duties before being provided with suitable duties and engaging in physiotherapy in October. The applicant was downgraded in mid-October and had not returned to work since.
On 22 December 2021 Dr Manish Gupta reported to Dr Castro that the applicant had attended on him the previous day and had presented with a six month history of right shoulder pain and progressive stiffness related to her employment. Dr Gupta observed that an MRI of the right shoulder demonstrated appearances of frozen shoulder.
On 10 January 2022 the applicant attended on Dr Akash Thakkar. The applicant’s pain had improved but the applicant was still not confident to be able to return to work.
On 16 March 2022 the applicant attended on Dr Castro who recorded that the right shoulder was still frozen.
A Recover At Work Plan No. 1 by Prudence Rehab which is undated but appears to have been produced in or about March 2022 concluded that an upgraded certificate was required before the applicant could commence work.
Prudence Rehab in an Initial Assessment & Workplace Assessment Report dated 31 March 2022 records that the applicant at the time of the assessment was certified with no capacity for work.
The report records that Prudence Rehab completed a case conference with the applicant and Dr Castro on 16 March 2022. The applicant reported no improvement in her right shoulder since she was last reviewed by Dr Castro. The applicant indicated that she was unable to perform a number of basic daily activities with her dominant right arm including washing her hair and hanging washing. The applicant also reported that her driving was limited by right shoulder pain, and she was avoiding trips outside her local area as a result.
At the time of the assessment the applicant reported experiencing right shoulder pain and stiffness.
Prudence Rehab observed that the applicant’s pre-injury duties included assisting residents with mobility, feeding, showering, toileting, grooming and dressing of residents. The collecting of dirty linen, the putting away of clean linen, the making of beds, the cleaning of rooms and the distribution of meals. It was observed that these activities entailed back and neck flexion, forward reach and repetitive bilateral fine motor and hand grip, pushing, pulling, lifting and carrying.
The report recommended that the applicant commence a graded return to work performing the following suitable duties, assist with visitor check in to the centre including checking digital COVID vaccination certificate, providing guidance/instruction to visitors on completion of self-administered RAT tests, checking test results, calling the ward to bring residents down to visitors, assisting visitor to sign into centre etc. The plan was to be discussed at a case conference with Dr Castro on 15 April 2022.
On 7 April 2022 the applicant attended for the first time on Dr Danny Tang of the Patrick Street Medical Centre Clinic for the first time. Dr Tang recorded that the applicant had pain in her left shoulder and the trapezius muscle as a result of compensatory use of the left arm and also cervical spine injury.
On 7 April 2022 Dr Tang issued a certificate of capacity for a date of injury 11 June 2021 which records a diagnosis of right rotator cuff injury, subacromial bursitis, subdeltoid bursitis, adhesive capsulitis, left rotator cuff injury, right lateral epicondylitis, left lateral epicondylitis, right medial epicondylitis left medial epicondylitis, cervical spine muscle strain, trapezius muscle strain.
On 19 April 2022 the applicant attended on Dr Tang who recorded that the right shoulder continued to cause pain and that her left shoulder was sore due to compensatory use. Her right shoulder was worse.
An Initial Physiotherapy Report by Nathan House dated 20 April 2022 records that the applicant first consulted with the physiotherapist on 24 March 2022. The report records that on initial presentation the applicant presented with bilateral elbow pain, neck pain and bilateral shoulder pain. Reduced movement of the shoulders and neck.

On 26 April 2022 Dr Tang observed that the applicant’s right shoulder was no better and that the left shoulder was getting worse due to compensatory use.
Dr Tang referred the applicant to Dr Sameer Viswanathan on 3 May 2022 for opinion and management of chronic bilateral shoulder pains.

On 10 May 2022 the applicant attended on Dr Tang. Dr Tang observed that the right shoulder remained the same. The applicant was still unable to lift her right shoulder.
On 16 May 2022 Dr Andrew Csillag reported on a right shoulder Ultrasound. Dr Csillag identified mild thickening of the subacromial-subdeltoid bursa. The doctor was of the opinion that increased vascularity at the rotator interval raised the possibility of adhesive capsulitis.
On 8 June 2022 Dr Tang issued a certificate of capacity which diagnosed right rotator cuff injury, subacromial bursitis, subdeltoid bursitis, adhesive capsulitis, left rotator cuff injury, right lateral epicondylitis, left lateral epicondylitis, right medial epicondylitis, left medial epicondylitis, cervical spine muscle strain and trapezius muscle strain. Dr Tang certified the applicant as having no capacity for work from 8 June 2022 to 22 June 2022. Dr Tang had in previous certificates of capacity certified the applicant with no work capacity prior to 8 June 2022.
On 22 June 2022 Dr Tang issued a certificate of capacity which repeated the diagnosis of the certificate of capacity dated 8 June 2022 and certified the applicant with no capacity for work from 22 June 2022 to 20 July 2022.
Dr Gupta on 23 January 2023 reported that the applicant consulted with him on one occasion being on 22 December 2021. The diagnosis made was of work-related frozen shoulder syndrome.
The applicant had reported a history of six months of pain of somewhat acute onset with progressive right shoulder stiffness. The applicant attributed the pain to her work-related duties which involved a lot of repetitive activities including heavy lifting.
The doctor is of the opinion that the history, physical examination and MRI scan confirmed the diagnosis of frozen shoulder syndrome. Dr Gupta observed that the prognosis for frozen shoulder syndrome is mostly spontaneous recovery, though this may take two to three years. Accelerated recovery can be achieved with surgical treatment and aggressive rehabilitation.
Dr Gupta accepted that frozen shoulder syndrome can occur in the absence of any injury. However, in the applicant’s case the doctor felt that it is work related. The doctor’s chief reason for this opinion is that the applicant described the onset of her symptoms as intimately related to the nature of her work. In the doctor’s opinion the applicant also has no intercurrent comorbidities which pre-dispose her to a frozen shoulder syndrome. The doctor observed that overuse and traumatic frozen shoulder syndrome is a recognised condition and that was the doctor’s opinion in the applicant’s case.
Dr Gupta reported that during his consultation with the applicant no discussions were had in regard to her left shoulder. Dr Gupta observe that in the setting where one shoulder is significantly disabled due to pain and stiffness, he had observed in other cases compensatory overuse clinical pain syndrome experienced in the other shoulder. The doctor stated that he completely understood how the applicant could have developed such a condition.

Dr Gehr

Dr Gehr, orthopaedic surgeon, provided a medico-legal report for the applicant dated 6 September 2022.
Dr Gehr records that the applicant reported no problems with her upper extremities prior to the subject injury.
The applicant had not been able to work since 4 October 2021.
The applicant was able to drive a car but only for short distances.
Dr Gehr recorded a history that about a month after the problem with the right shoulder developed the applicant developed a problem with her left shoulder. The applicant reported that her left shoulder became painful and she had difficulty moving it.
On examination the applicant reported bilateral shoulder pain and significant stiffness of the right shoulder. The applicant reported no improvement in the right shoulder condition.
Dr Gehr diagnosed right frozen shoulder with pain and decreased range of motion, muscle wasting and left shoulder soft tissue injury, frozen shoulder with pain and loss of range of motion.
Dr Gehr noted that MRI imaging of the right shoulder showed bursitis which was consistent with the nature of the applicant’s work duties.
Dr Gehr is of the opinion that it would be impossible for the applicant to return to her pre-injury work duties with her bilateral shoulder problems. In the doctor’s opinion a significant improvement in the shoulder symptoms would be required before the applicant would be able to return to work duties. In Dr Gehr’s opinion, such a significant improvement is unlikely as the applicant had been significantly symptomatic for over a year.
Given the applicant’s education and work experience Dr Gehr is of the opinion that she is unskilled for any other work.
Dr Gehr, on the balance of probabilities, is of the opinion that the applicant suffered an injury to her right shoulder due to the nature and conditions of her employment. Dr Gehr is also of the opinion that the applicant suffered consequential injury to the left shoulder. The doctor observed that the medico-legal literature supports an incidence of 20% to 40% for consequential injury to the contralateral joint.
Dr Gehr is of the opinion that bursitis fits the history and clinical examination and noted that the MRI of the right shoulder dated 23 November 2021 reported bursitis.
Dr Gehr provided a supplementary medico-legal report for the applicant dated 6 February 2023. Dr Gehr observed in respect to a report of A/Prof Miniter dated 28 October 2022 that A/Prof Miniter pointed out two measurements whilst he had pointed out six measurements of range of motion of the right shoulder. Dr Gehr was of the opinion that his measurements clearly showed a reduced range of motion of the right shoulder.
On examination Dr Gehr had observed no pain behaviours and no non-physiological behaviours also no aggravation and no embellishment.
Dr Gehr confirmed that at the time of his examination on 6 September 2022 the applicant was still significantly symptomatic.
Dr Gehr agreed with the opinion of Dr Gupta that an overuse and traumatic frozen shoulder is a recognised condition and the correct diagnosis in the applicant’s case.

A/Prof Paul Miniter

A/Prof Paul Miniter, orthopaedic surgeon, provided a medico-legal report for the respondent dated 20 April 2022. A/Prof Miniter examined the applicant on 8 April 2022.
The doctor observed that the applicant had been improving very slowly. The applicant was frustrated by the process. Whilst the doctor concluded that physiotherapy had been largely ineffective he observed that the applicant’s pain had largely settled and the applicant no longer had severe nocturnal pain.
On examination the doctor observed marked stiffness of the right shoulder. The doctor found the left shoulder to be “normal”[1].
[1] Reply p 59.
A/Prof Miniter diagnosed frozen shoulder syndrome which in the doctor’s opinion “… is not a work-related phenomenon”.[2]
[2] Reply p 60.
A/Prof Miniter observed that the applicant’s pain seemed to be settling and that her range of motion seemed to be improving slowly but did not provide any details as to how the condition had improved apart from the applicant no longer having severe nocturnal pain.
The doctor concluded that bursitis was an incorrect diagnosis.
A/Prof Miniter is of the opinion that there is no diagnosis that explains a relationship between an alleged injury on 11 June 2021 and the applicant’s presentation.
A/Prof Paul Miniter provided a further medico-legal report for the respondent dated 28 October 2022. He had re-examined the applicant on 21 October 2022.
A/Prof Miniter observed that since he had last examined the applicant in April 2022 there had been a marked improvement in overall functional capacity. The doctor observed that the shoulder had almost completely settled. In the doctor’s opinion the applicant was following the classical pathway to resolution of adhesive capsulitis.
The doctor is of the opinion that “adhesive capsulitis is a non work-related matter”.[3]
[3] Reply p 64.
A/Prof Miniter found “some spurious non-physical findings…and some significant variation in range of motion in different postures”.[4] A/Prof Miniter did not elaborate on what these spurious non-physical findings were or provide his observations in respect to the significant variations in range of motion.
[4] Reply p 65.
A/Prof Miniter concluded that the applicant had an excellent range of internal rotation such that the applicant could put her hand behind her back where she could not do so before and that she also had markedly improved range of external rotation.
A/Prof Miniter observed that “[n]ow that the jerk test is negative, capsulitis has stopped and she is now fit to begin a stretching program and return to work”.[5] The doctor observed that the applicant may find it somewhat difficult because of restrictions of range but there should be no reason for the applicant not to return to work with a view to limited capacity. The doctor did not identify what restrictions should be applied to the applicant’s work duties.
[5] Reply p 65.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties.

Applicant’s submissions

It was submitted on behalf of the applicant that one would accept that the nature of the applicant’s work duties could lead to shoulder injuries.
The applicant submitted that there is a direct temporal relationship between the work that the applicant was performing and the development of the right shoulder pain. It is not something that happened on the weekend or at some other time or place. It happened contemporaneous in both place and time with the applicant’s performance of her work duties for the respondent.
The applicant submitted that it is not an unusual occurrence for someone with an injury to one shoulder to then develop a consequential injury in the other shoulder due to over reliance. In relation to the left shoulder being first complained of to the GP in April 2022 the applicant submitted that as a consequential injury the timing is not curious and is quite normal as one would have expected the left shoulder condition to have developed over a period of time. The applicant submitted that any uncertainty as to the time of the onset of the left shoulder condition is of no consequence and does not derogate from there being a consequential left shoulder condition.
It was submitted that the applicant remains totally incapacitated due to her shoulder injuries.
It was observed that the Initial Physiotherapy Report by Nathan House dated 20 April 2022 was produced on the same date as the report of A/Prof Miniter. It was submitted that the report of Mr House offers a view consistent with what the applicant’s evidence in respect to the nature of her problems in April 2022 compared with what A/Prof Miniter described.
In the applicant’s submission the report of A/Prof Miniter dated 20 April 2022 records a very brief history and contains little about the nature of the applicant’s work and the possibility of there being a relationship between the work and the development of the right shoulder pain. In the applicant’s submission A/Prof Miniter has simply not dealt with the clear relationship between the nature of the work undertaken by the applicant and the development of the pain in the right shoulder.
It was submitted on behalf of the applicant that the opinion of A/Prof Miniter in his report dated 28 October 2022, that the applicant is fit to return to return to work in some limited capacity, is at best unhelpful as the applicant has previously stated that the respondent did not have any suitable duties for her.
The applicant submitted that on the balance of probabilities, it should be accepted that the applicant suffered an injury to her right shoulder with an injury date of 11 June 2021 due to the nature and conditions of her work, that she subsequently suffered a consequential injury to her left shoulder and that she has no capacity for work.

Respondent’s submissions

In respect to the injury to the right shoulder the respondent did not rely on any documents other than the two reports of Dr Miniter. In the opinion of Dr Miniter the applicant had a right frozen shoulder which was constitutional in nature and not work related.
The respondent observed that it is the applicant’s evidence that she developed the left shoulder condition in or about August 2021. However, there is no reference to any complaint in respect to the left shoulder in the medical records until 7 April 2022. The respondent submitted that if the applicant developed the left shoulder condition in or about August 2021 why did she not make any complaint prior to 7 April 2022 during her multiple attendances on doctors and physiotherapists and why were radiological investigations on the left shoulder not performed at the same time as those on the right shoulder.
The respondent submitted that Dr Gehr records that on 4 October 2021 the applicant stopped work and had not been able to work since. It was submitted that if it is the applicant’s case that she overused her left shoulder whilst performing work duties there is no report of any complaint in respect to the right shoulder prior to the applicant ceasing work.
It was submitted that it is the applicant’s evidence that throughout late 2021 she continued to place significant pressure on and overuse her left arm and shoulder however the physiotherapy report of 1 November 2021 makes no mention of any complaint in respect to the left shoulder.
It was noted on behalf of the respondent that A/Prof Miniter in his report of 20 April 2022 found the left shoulder to be normal.
The respondent submitted that if the applicant suffered from this left shoulder pain from as early as alleged, in the way that she has alleged and suffered and undergone numerous investigations of the right shoulder and suffered and undergone an injection to the right shoulder, undergone physiotherapy throughout 2021 why is there no mention of this left shoulder pain until April 2022. The respondent submitted that the consequential condition has not occurred as alleged.
In respect to incapacity the respondent submitted that A/Prof Miniter noted that after a five month period of being off work the applicants pain was settling and her range of motion appeared to be improving slowly. In his second report A/Prof Miniter observed that since seeing the applicant in April there had been a marked improvement in overall functional capacity, the shoulder pain had almost completely settled. On examination the doctor observed an improved range of motion and concluded that capsulitis had stopped and found that the applicant was now fit to return to work. It was submitted that on the opinion of A/Prof Miniter there had been a significant improvement in the applicant’s condition and there was some capacity to return to work at least on suitable duties.
The respondent conceded that any prior claims by the applicant are not relevant to the issues that need to be decided here.

FINDINGS AND REASONS

Consideration and findings

Right shoulder injury

Whilst there may be some differences of opinion as to the condition(s) affecting the applicant’s right shoulder, there appears to be no dispute on the medical evidence that the applicant has developed a right shoulder condition(s).
Dr Wong on 13 July 2021 reported that a right shoulder ultrasound was consistent with subacromial bursitis. On 20 September 2021 Dr Castro diagnosed right subacromial bursitis. Dr Hazan on 24 November 2021 reported that a right shoulder MRI scan was consistent with capsulitis and likely indicated associated bursitis. Dr Csillag reported on a right shoulder ultrasound performed on 16 May 2022 and was of the opinion that the appearance of the scan raised the possibility of adhesive capsulitis. The treating orthopaedic surgeon, Dr Gupta, diagnosed frozen shoulder syndrome. Dr Gehr diagnosed a frozen shoulder and noted that MRI imaging showed bursitis. Whilst A/Prof Miniter did not agree with the diagnosis of bursitis he did diagnose adhesive capsulitis (frozen shoulder).
The next issue to be considered is whether the applicant’s right shoulder condition is an injury “arising out of or in the course of employment”.[6]
[6] Section 4 of the 1987 Act.
It was submitted on behalf of the respondent that the opinion of A/Prof Miniter that bursitis is an incorrect diagnosis and that the frozen shoulder phenomenon is a constitutional condition and not work related should be accepted. I do not accept this submission.
It is the applicant’s evidence that her work duties with the respondent were physical in nature involving repetitive pushing and pulling actions, and repetitive carrying and lifting movements. It is the applicant’s evidence that her work duties with the respondent included assisting residents to shower, the pushing and pulling of medication trolleys, helping residents with mobility, assisting residents into wheelchairs, assisting with the feeding of residents, assisting residents to change their clothes, putting residents into nappies and the changing of bed linen.
The applicant’s evidence in respect to the nature of her pre-injury work duties is confirmed by the Workplace Assessment Report produced by Altius dated 3 December 2021 which records that the applicant’s role required frequent lifting of heavy materials, full function of the upper limbs, frequent pushing / pulling of heavy materials.
The applicant’s evidence is also confirmed by the Initial Assessment & Workplace Assessment Report by Prudence Rehab dated 31 March 2022 which records that the applicant’s pre-injury duties included assisting residents with mobility, feeding, showering, toileting, grooming and dressing of residents. The collecting of dirty linen, the putting away of clean linen, the making of beds, the cleaning of rooms and the distribution of meals. Prudence Rehab observed that these activities entailed back and neck flexion, forward reach and repetitive bilateral fine motor and hand grip, pushing, pulling, lifting and carrying.
The evidence supports, and I accept that the applicant’s pre-injury work duties were physical in nature requiring the repetitive use of the right upper extremity and right shoulder to perform lifting which at times was heavy, pushing, pulling and carrying. The applicant had performed these duties for about 10 years at the time of the onset of the right shoulder symptoms.
It is the applicant’s uncontested evidence that in or around early 2021 she noticed progressively worsening pain and discomfort in her right shoulder. It is the uncontested evidence of the applicant that on 11 April 2021 whilst at work performing her usual duties, she reported the symptoms to Anna Linden (RN).
It is the applicant’s uncontested evidence that on 11 June 2021 she was carrying out her usual work duties for the respondent and that the throbbing and aching pain in her right shoulder was worsening however she continued to work. The pain got to the point where she was unable to move her right arm and hand at which time, she again reported her symptoms to Anna Linden. Anna Linden advised the applicant to work in the Dementia department for a week on lighter duties. However, the applicant did not find these lighter duties less painful.
I accept the applicant’s evidence that she noticed progressively worsening right shoulder pain and discomfort in or around early 2021 and that she suffered increased symptoms whilst performing her work duties for the respondent.
The orthopaedic surgeon, Dr Gupta, who examined the applicant on 22 December 2021 at the request of, Dr Castro, diagnosed a right frozen shoulder syndrome.
Dr Gupta noted that the applicant’s work duties involved a lot of repetitive activities including heavy lifting.
Dr Gupta accepted that frozen shoulder syndrome can occur in the absence of any injury. However, in the applicant’s case the doctor felt that it is work related. The doctor’s chief reason for this opinion is that the applicant described the onset of her symptoms as intimately related to the nature of her work. In the doctor’s opinion the applicant also has no intercurrent comorbidities which pre-dispose her to a frozen shoulder syndrome. The doctor observed that overuse and traumatic frozen shoulder syndrome is a recognised condition and that was the doctor’s opinion in the applicant’s case.

Dr Gehr, on the balance of probabilities, is also of the opinion that the applicant suffered an injury to her right shoulder due to the nature and conditions of her work duties with the respondent.
A/Prof Paul Miniter records no description of the applicant’s work duties with the respondent and in respect to the onset and development of the right shoulder symptoms simply records that here was a “...surreptitious onset of discomfort at the right shoulder…”[7] which began in the middle of 2021.
[7] Reply p 59.
A/Prof Miniter makes a diagnosis of frozen shoulder and concludes that the applicant’s frozen shoulder syndrome “is not a work-related phenomenon”[8]. The doctor gives no reasons for his opinion. The doctor does not provide any analysis in respect to the relationship between the onset and development of the right shoulder symptoms and the applicant’s work duties, including any increase in symptoms whilst performing work duties. He does not provide an opinion as to whether a frozen shoulder syndrome can develop or be aggravated by particular work activities and if so why that has not occurred. An expert is required to identify the facts and reasoning process which they assert justifies their opinion.[9] A/Prof Miniter has not identified the facts and reasoning process that justifies his opinion.
[8] Reply p 60.
[9] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43.
For the above reasons I prefer the opinions of Dr Gupta and Dr Gehr to that of A/Prof Miniter.
I find that the applicant sustained an injury to her right shoulder arising out of or in the course of her employment with the respondent.

Consequential left shoulder condition

The applicant first sought medical attention in respect to her right shoulder condition in or about July 2021 when she attended on her GP, Dr Widmer. The first mention in the medical records before the Personal Injury Commission of complaints in respect to the left shoulder is on 24 March 2022 when the applicant attended for the first time on the physiotherapist, Nathan House of Mobile Rehab + Physio. The applicant presented to Mr House with neck and bilateral shoulder and elbow pain. Mr House observed the applicant at that time to have a reduced range of motion in both shoulders.
On 7 April 2022 the applicant attended on Dr Tang for the first time. Dr Tang recorded that the applicant had left shoulder pain as a result of compensatory use. On 12 April 2022 Dr Tang recorded a diagnosis of bursitis of the left shoulder.
A/Prof Miniter who examined the applicant on 8 April 2022 (the day after the applicant attended on Dr Tang) found the left shoulder to be “normal”.[10] The doctor does not record whether the applicant made any complaints in respect to the left shoulder and records no details of the examination conducted of the left shoulder.
[10] Reply p 59.
A/Prof Miniter re-examined the applicant on 21 October 2022 providing a report dated 28 October 2022. That report contains no mention of the left shoulder.
Dr Gehr examined the applicant on 6 September 2022. Dr Gehr obtained a history from the applicant that about one month after she developed the problem with her right shoulder, she developed a problem with her left shoulder. The doctor examined the left shoulder and diagnosed a frozen left shoulder with pain and loss of motion.
A/Prof Miniter takes no history from the applicant in respect to any complaints which she had in respect to her left shoulder and whilst A/Prof Miniter declares the left shoulder to be “normal” he provides no details as to the examination performed of the left shoulder and the findings of that examination. This is inconsistent both with clinical record of Dr Tang of 7 April 2022 and the applicant’s attendance on Mr House on 24 March 2022. On the day prior to the examination with A/Prof Miniter the applicant had attended on Dr Tang at which time the applicant had complained of left shoulder symptoms. Also, on 24 March 2022 the applicant had attended on her physiotherapist, Mr House, complaining of left shoulder pain at which time, on examination, a reduced range of motion of the left shoulder was observed.
For the above reasons I prefer the opinion of Dr Gehr to that of A/Prof Miniter that the applicant has developed a left shoulder condition.
The next issue to be considered is whether the applicant’s left shoulder condition results from the right shoulder injury. This is a question of fact.[11]
[11] State of New South Wales v Bishop [2014] NSWCA 354.
The respondent submits that if the applicant suffered from left shoulder pain from as early as alleged, why is there no mention of it in the medical records until April 2022 and it should not be accepted that a consequential left shoulder condition has occurred as alleged.
There is some uncertainty in the evidence as to when the left shoulder symptoms developed.
On 6 September 2022 Dr Gehr obtained a history from the applicant that about one month after she developed the problem with her right shoulder, she developed a problem with her left shoulder.
It is the applicant’s evidence that in or around early 2021 she developed progressively worsening pain and discomfort in her right shoulder and that she first reported the right shoulder condition to her employer on 11 April 2021 which would on the history taken by Dr Gehr place the development of the left shoulder symptoms in or prior to May 2021.
Following her attendance on Dr Gehr the applicant completed a statement on 25 January 2023. In that statement the applicant states that in or around August 2021 her right shoulder condition continued to worsen and during this time she was over relying on her left arm and shoulder to carry out daily activities and work duties and started to experience aching pain and soreness in her left shoulder. It is also the applicant’s evidence that at this time she was engaging in weekly physiotherapy and that throughout the rehabilitation process for her right shoulder she developed the left shoulder condition.
The applicant first sought treatment for her right shoulder condition in or around July 2021 when she attended on Dr Widmer. Dr Widmer referred her for a right shoulder ultrasound. The clinical records of Dr Widmer are not in evidence. The applicant does not record in her statements being referred for physiotherapy until Dr Castro referred her in or around October 2021. The first available record of the applicant attending physiotherapy is of the applicant commencing physiotherapy treatment in early October 2021 with Focushealth/Physioclinic Blacktown. Therefore, if the applicant was receiving physiotherapy at the time of the onset of the left shoulder symptoms, that would place the onset in or after October 2021.
It is also the applicant’s evidence that she reported the left shoulder symptoms to Dr Castro and her physiotherapist however Dr Castro was focused on her right shoulder condition. The clinical notes of Dr Castro do not record any mention of any complaint in respect to the left shoulder.
Whilst there may be some uncertainty as to when the left shoulder symptoms developed and when they were initially reported, the evidence does support that the applicant would have been relying more heavily on her left arm as a result of the injury to her right shoulder. I accept the applicant’s submission that the consequential condition of the left shoulder would have developed overtime. I also accept the applicant’s submission that little turns on the timing of the development of any consequential condition if the consequential condition is caused by an accepted work injury.
It is the applicant’s evidence that throughout late 2021 she continued to rely on her left arm and shoulder as a result of the right shoulder injury.
Focushealth/Physioclinic Blacktown recorded on 18 October 2021 and 1 November 2021 that the applicant was having difficulty performing domestic duties and selfcare activities. The applicant was assessed due to her right shoulder condition as having no ability to carry, hold, lift, push, pull, reach above shoulder height or even use her right shoulder.
Dr Gehr is of the opinion that the applicant suffered consequential injury to the left shoulder. Dr Gupta reported that he had observed that where one shoulder is significantly disabled due to pain and stiffness a compensatory overuse condition can develop in the other shoulder. Dr Gupta understood how this could have happened in the applicant’s case.
There is no evidence of any pre-existing left shoulder condition and I accept the applicant’s evidence that following the onset of the right shoulder condition she relied more heavily on her left arm and shoulder. I accept the opinion of Dr Gehr that the applicant has suffered a consequential condition of the left shoulder due to the right shoulder injury.
I find that the applicant sustained a consequential condition of the left shoulder due to the injury to her right shoulder arising out of or in the course of her employment with the respondent.

Weekly benefits compensation/incapacity

The applicant seeks weekly benefits compensation payments from 10 June 2022 to date and continuing pursuant to s 37 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
The PIAWE has been agreed at $1,042.63.
The applicant ceased work duties with the respondent in or around October 2021 and has not returned to work.
It is the applicant’s evidence that she currently suffers from debilitating pain, stiffness and swelling of both shoulders. That the right shoulder pain radiates into the right side of her neck and causes neck pain, that her shoulder pain shoots down both arms and is associated with pins and needles sensation in her fingers and hands. That she is not able to lift her arms without experiencing severe pain. That her shoulder pain and stiffness is aggravated by sitting and walking for extended periods, lifting heavy objects, by moving her arms, cold weather and by driving or sitting in a motor vehicle.
It is the applicant’s evidence that she believes that she is completely unfit for her pre-injury work duties due to her ongoing pain, stiffness and restriction of both shoulders. It is also her evidence that it is her belief that she is unfit to engage in administrative type duties as even typing and computer work would aggravate her shoulder pain.
The respondent submits that the opinion of A/Prof Miniter that the applicant is fit to return to work should be accepted.
A/Prof Miniter initially examined the applicant on 8 April 2022 providing a report dated 20 April 2022. That report provides no opinion as to the applicant’s work capacity.
On 21 October 2022 A/Prof Miniter re-examined the applicant. The doctor observed that the applicant’s right shoulder had almost completely settled, that the applicant had an excellent range of internal rotation such that she could put her hand behind her back where she could not do so before and that she also had markedly improved range of external rotation. A/Prof Miniter was of the opinion that the right shoulder capsulitis had stopped and that the applicant is fit to begin a stretching program and return to work. The doctor observed that the applicant may find it somewhat difficult because of restrictions of range but was of the opinion that there should be no reason for the applicant not to return to work with a view to limited capacity. The doctor did not identify what restrictions should be applied to the applicant’s work duties.
Dr Gehr who examined the applicant on 6 September 2022 (approximately six weeks before A/Prof Miniter) records that the applicant reported right and left shoulder pain. The applicant reported no improvement in her right shoulder. Loss of range of motion was observed in both shoulders.
Dr Gehr is of the opinion that it would be impossible for the applicant to return to her pre-injury work duties with her bilateral shoulder problems. In the doctor’s opinion a significant improvement in the shoulder symptoms would be required before the applicant would be able to return to work duties. Given the applicant’s education and work experience Dr Gehr is of the opinion that she is unskilled for any other work.
I prefer the opinion of Dr Gehr. Dr Gehr records a history of complaints which is both consistent with the evidence of the applicant and the complaints made to her treating doctor’s and physiotherapists over time, including the lack of improvement in her condition. A/Prof Miniter also only assess the applicant’s capacity for work duties based on an assessment of the right shoulder condition and does not record or take into consideration the applicant’s complaints in respect to her left shoulder. Furthermore, whilst A/Prof Miniter is of the opinion that the applicant does have the ability to return to some form of suitable duties he does not identify what restrictions should be applied. The respondent bears the burden of proving the extent of any residual earning capacity and on the basis of A/Prof Miniter’s opinion it is not possible to determine what duties the applicant is allegedly fit to perform.
On the basis of the applicant’s evidence as to her current symptoms and disabilities and the opinion of Dr Gehr I find that the applicant has no current capacity for gainful employment. I also find that the applicant has had no capacity for gainful employment since 10 June 2022.
Pursuant to s 37(1) of the 1987 Act the weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's PIAWE. The PIAWE has been agreed at $1,042.63.
Eighty percent of $1,042.63 = $834.10. Indexing the PIAWE in accordance with s 82A of the 1987 Act the following PIAWE rates apply:
(a)    $1,074.45 from 10 June 2022 to 30 September 2022;
(b)    $1,110.66 from 1 October 2022 to 31 March 2023, and
(c)    $1,156.64 from 1 April 2023.
On the basis of total incapacity, I make the following awards in favour of the applicant pursuant to s 37 of the 1987 Act:
(a)    $859.56 per week from 10 June 2022 to 30 September 2022;
(b)    $888.53 per week from 1 October 2022 to 31 March 2023, and
(c)    $925.31 per week from 1 April 2023 to date and continuing.

SUMMARY

I find that:
(a)    I find that the applicant sustained an injury to her right shoulder arising out of or in the course of her employment with the respondent with a deemed date of injury of 11 June 2021.
(b)    I find that the applicant sustained a consequential condition of the left shoulder due to the injury to her right shoulder arising out of or in the course of her employment with the respondent.
(c)    I find that the applicant has no current capacity for gainful employment.
(d)    I find that the applicant has had no capacity for gainful employment since 10 June 2022.
(e) I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment as follows:
(i)Date of injury: 11 June 2021 (deemed).
(ii)Body systems / parts:
(1)Right upper extremity (shoulder)
(2)Left upper extremity (shoulder)
(iii)Method of Assessment: whole person impairment.
The documents to be reviewed by the Medical Assessor are:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    applicant’s Application to Admit Late Documents signed 29 March 2023.
On the basis of total incapacity, I make the following awards in favour of the applicant pursuant to s 37 of the 1987 Act:
(a)    $859.56 per week from 10 June 2022 to 30 September 2022;
(b)    $888.53 per week from 1 October 2022 to 31 March 2023, and
(c)    $925.31 per week from 1 April 2023 to date and continuing.

[2023] NSWPIC 191

28 April 2023