Marshall v Woolworths Group Ltd
[2021] NSWPIC 473
•18 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Marshall v Woolworths Group Ltd [2021] NSWPIC 473 |
| APPLICANT: | Shannen Marshall |
| RESPONDENT: | Woolworths Group Ltd |
| MEMBER: | Cameron Burge |
| DATE OF DECISION: | 18 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Permanent impairment claim; multiple body systems claimed as result of injurious event in 2003; whether applicant suffered injuries to cervical spine and right shoulder in injurious incident; whether accepted injury to thoracic spine can be referred for medical assessment despite not being subject of any claim for permanent impairment; Held – the accepted thoracic spine injury should not be referred for assessment in circumstances where it is not the subject of any comment, let alone assessment by the applicant’s own independent medical examiner; Shankar v Ceva Logistics (Australia) Pty Ltd distinguished; the applicant made a claim for whole person impairment in reliance on the report of Dr Bodel; that report only assessed impairment with respect to the right shoulder and neck, not the thoracic spine; the accepted injury to the thoracic spine was not discussed in Dr Bodel’s report, let alone the subject of any assessment in it; indeed, Dr Bodel did not assess the thoracic spine at all; the applicant had not discharged the onus of proof in establishing injury to the neck and right shoulder, neither of which were the subject of complaint to treating practitioners until much later; mere proof that certain events occurred which predisposed the applicant to a subsequent injury will not, of itself, be sufficient to establish that such subsequent problems result from a work injury; on a common-sense evaluation of the causal chain, the applicant had not discharged her onus of proof in establishing a causal link between the injurious event in 2003 and her neck and right shoulder conditions; Kooragang Cement Pty Ltd v Bates applied; award for the respondent. |
| DETERMINATIONS MADE: | 1. Award for the respondent. |
STATEMENT OF REASONS
BACKGROUND
Ms Shannen Marshall (the applicant) brings a claim for permanent impairment compensation in relation to injuries allegedly suffered to her cervical spine, thoracic spine and right upper extremity (shoulder) in a frank incident while she was standing on a ladder and lifting boxes of wine from an elevated shelf in the course of her employment with Woolworths Group Ltd (the respondent) at its BWS store at Kellyville on 26 June 2003.
The respondent admits the applicant suffered an injury to her thoracic spine, however, it disputes the alleged injuries to both the cervical spine and right shoulder.
A further dispute arises over the proposed referral to a Medical Assessor of the applicant's thoracic spine injury. The applicant submits that body system should be referred despite no permanent impairment being identified on her own medico-legal case, whilst the respondent claims that absent such assessment, the thoracic spine injury cannot be the subject of a referral.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the accepted injury to the thoracic spine is capable of referral to a medical assessor, and
(b) whether the applicant suffered injury to her cervical spine and right shoulder.
PROCEDURE BEFORE THE COMMISSION
The parties attended a hearing on 14 October 2021. 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 had been unable to reach an agreed resolution of the dispute.
At the hearing, Mr G Barter of Counsel appeared for the applicant, instructed by
Ms R Jackson, solicitor. Mr J Beran of Counsel instructed by Mr R Passas, solicitor, appeared for the respondent.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (the Application) and attached documents, and
(b) Reply and attached documents served under Application to Admit Late Documents dated 24 September 2021.
Oral evidence
There was no oral evidence called at the hearing.
FINDINGS AND REASONS
Referral of the thoracic spine for medical assessment
In submitting the applicant’s thoracic spine injury should be referred for assessment, Mr Barter relied on the decision of Acting Deputy President Parker SC in Shankar v Ceva Logistics (Australia) Pty Ltd [2021] NSWPICPD18 (Shankar).
In that matter, the Deputy President held that an injured body system which is assessed as having zero whole person impairment by a worker’s independent medical examiner (IME) may still be referred to a Medical Assessor, as there is still a medical dispute as that term is defined in section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
In my view, the circumstances of this matter vary from those in Shanka in several material respect. Firstly, the respondent disputes the applicant suffered any injury to her cervical spine and right shoulder as a result of the incident in issue, unlike Shanka in which there were other body systems which it was agreed would be referred for assessment. Additionally, in this matter, there is no whole person impairment assessment provided of the thoracic spine, nor does that body system form part of the applicant’s claim.
In a letter dated 5 March 2019, the applicant’s solicitor wrote to the respondent’s insurer making a claim for permanent impairment compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act) in the sum of $17,000, “which represents a 13% whole person impairment”.
In making that claim, the applicant enclosed by way of service the medical report of Dr Bodel dated 15 February 2019. In that report, Dr Bodel provided the following history of injury;
“This lady suffered an injury at work on 26 June 2003. This accident occurred at 4:15 p.m. She was at that time lifting a box which was high on a shelf. She was standing on a ladder. She was reaching above head height and she took the weight of this box which contained 12 bottles of wine and she strained her neck and upper back.
She went to see her doctor. She was put off work for a period. She was given analgesic medication and went back to work. She states that she slightly improved but never completely recovered.
She left work at Woolworths about six months later. She subsequently worked in various activities including hospitality work and factory work until 2009 when she went off work to have the first of her two children.
Her neck pain has never settled and then grumbled on and steadily deteriorated overtime without accident or injury”
When assessing the applicant’s current complaints, Dr Bodel noted “this lady continues to complain of pain in the neck, at the base of the neck over the top of the right shoulder.”
Dr Bodel then carried out a physical examination of the applicant in which he noted impingement of the right shoulder and mild generalised wasting in the shoulder girdle. He noted there was tenderness in the trapezius muscles at the base of the neck on the right side with guarding in that area and the reduced range of neck flexion, extension and rotation on all directions, most restricted on rotation to the left.
Dr Bodel was then asked a series of question by the applicant’s solicitors. Those questions were, relevantly, as follows:
“(1) Did our client sustain a work-related injury during the course of her employment? If so, was it by way of an acceleration, exacerbation and/or aggravation of a pre-existing injury or another form of injury?”
Dr Bodel replied:
“This lady suffered an injury to the neck in the form of a probable disc injury at C5/6 as a consequence of the event that occurred during the course of a day’s work on 26 June 2003. She has also suffered a consequential condition involving the rotator cuff injury to the region of the right shoulder”
The applicant’s solicitors then asked which body parts have been impaired as a result of the injury, the subject of the claim, to which Dr Bodel replied “the body parts involved are the cervical spine and the right shoulder involving the rotator cuff.”
Unlike Shanka, this is not a matter where there is a 0% assessment provided of the applicant’s thoracic spine. Rather, there is no reference at all in Dr Bodel’s report to any injury to the thoracic spine or any level of impairment whatsoever. Dr Bodel’s finding of a 13% whole person impairment was on the basis of a 7% finding for the cervical spine and 6% to the right upper extremity. Dr Bodel makes no mention of the applicant’s thoracic spine in his assessment at all.
In my view, the facts of this case do not fall within those contained in the matter of Shanka. In that case, a 0% impairment to a body part was provided by relevant medicolegal experts. In this matter, the applicant’s thoracic spine is not even mentioned. Were the Commission to allow a referral for assessment of the applicant’s thoracic spine in circumstances where that body part is not even relied upon as part of her claim for whole person impairment, it follows it would be open for an injured worker to seek referral of any body system in a given set of proceedings, including those on which their own evidence is silent.
In my view, there has been no claim made in respect of the thoracic spine, even one which contains a 0% whole person impairment assessment. I accept Mr Beran’s submission that there has been no claim, as that term is defined in section 4 of the 1998 Act, in respect of the thoracic spine. That is, the applicant has made no claim for compensation with respect to that body part. The applicant has not made a claim for compensation under Workers Compensation Legislation with respect to her thoracic spine and in my view it cannot be said there is a dispute over that body part in this matter.
The respondent has not, through its section 78 notice dated 7 June 2019, denied an entitlement to lump sum compensation with respect to the thoracic spine, as no claim for lump sum compensation with respect to that body part was made on it. Although the section 78 notice accepted an injury was suffered to the thoracic spine, nothing in the applicant’s permanent impairment claim referred to that body system as being the subject of any assessment of impairment. Rather, the documents relied upon by the applicant to support her claim, namely the report of Dr Bodel dated 15 February 2019, refer only to impairments to the cervical spine and right shoulder.
In my view, there is no dispute to be referred to a Medical Assessor, as there has been no claim made with respect to the applicant’s thoracic spine.
For these reasons, the application for referral of the applicant’s thoracic spine to a Medical Assessor will be rejected.
Whether the applicant suffered injury to her cervical spine and/or right shoulder
The applicant has the onus of proving that she suffered an injury to the claimed body parts. There is no question that by 2015, radiological investigation by way of MRI of the cervical spine disclosed disc pathology. A CT scan of the neck taken on 6 March 2015 also demonstrated right paramedian and foraminal broad-based bulging/small protrusion of the C5/6 disc encroaching into the right lateral recess.
The difficulty for the applicant, however, is in establishing the causal link between the incident in 2003 and the findings on radiology in 2015, some 12 years later.
An examination of the contemporaneous medical records reveal that the applicant made no complaint of neck or right shoulder symptoms at the time of the injury. The incident report refers only to the thoracic spine injury, as thus the original claim form.
On the question of causation of injury to claimed body parts, the application bears the onus of proof. She must establish, on a common sense basis, that the alleged injuries were caused by the incident at issue. Such a process needs to be considered having regard to both the lay and medical evidence in any given matter, as his Honour, Kirby P (as he then was) noted in Kooragang Cement Pty Ltd v Bates (1994) 35NSWLR 452 (Kooragang).
Mr Barter submitted that there was no evidence of any incident other than the injury at issue which might have caused the pathological change in the applicant’s neck and shoulder. However, an examination of the clinical records reveals the applicant’s shoulder complaints arose after an excessive amount of lifting and carrying of weights in the workplace in December 2004. That is consistent with the separate claim form which the applicant lodged in relation to her right shoulder in respect of an alleged injury which took place on 9 January 2004 [Application (A)11]. In that document, the applicant noted that she had pain in her upper back (right shoulder) on the Christmas Holidays and when she “noticed this pain in the same area as my pre-injury, I went back to the doctor 9.1.04.”
That description of injury contrasts with that of the injury in issue, which the applicant registered as soreness and stiffness in her middle back. The employer’s claim for compensation in relation to the injury in issue referred to pain in the middle of her upper back in June 2003, with no reference to either the applicant’s neck or to her right shoulder.
It must be remembered that the applicant is claiming injury to this body parts by way of frank injury, not as a consequential condition.
Indeed, the applicant’s right shoulder was the subject of a separate claim for compensation referring to a date of injury of 9 January 2004 when she was lifting a box in the course of her employment. In that claim form, she referred to a previous injury to her upper back (shoulder) and was presumably referring to the injury at issue in June 2003. However, the claim for for the injury at issue referred to the middle of the applicant’s back, rather than her shoulder.
Additionally, the applicant’s own statement [A1] referred to the injury in issue as follows:
“6. On 26 June 2003, I was standing on a ladder and reaching overhead using both my arms to lift a box containing 12 bottles of wine from the serving unit. I had raised and extended both my arms above head height to lift the box. As I was lifting the box, I felt immediate pain in my upper back and chest and I had difficulty breathing. I reported this incident to the front desk and left work shortly after.
7. Immediately after the incident, I attended an appointment with my treating general practitioner, Dr Paul Sarian. I advised I was experiencing pain in the right side of my upper back after lifting a box from a high shelf at work.”
An examination of the medical records from Quakers Hill Medical Centre (Dr Sarian) records the following in relation to the applicant’s visit on 26 June 2003:
“Back pain around mid-thoracic region.
History:
At around 2:15 pm today, while putting down a box of wine from a high shelf at work, she felt pain at the above region.
Examination:
Musculo-skeletal
Back: Tender at T3 – T7 region. Flexion 50 degrees.
Extension 40°.
Right rotation 15°.
Left leg rotation 25°Actions
Letter written - re thoracic pain to WorkCover.”
A visit to the same practice on 7 July 2003, a history was noted of the applicant having developed right mid back pain after lifting at work with “signs of sprain of R scapular rotators”.
By 9 July 2003, the applicant was issued with a final Workers Compensation certificate and was fit for work. All of her back movements and power were normal, and a final certificate was written for a return to work on 10 July 2003.
The applicant then again consulted Dr Sarian on 6 January 2004. That entry relevantly read as follows:
“Continued back pain, worse at right medical scapular region.
She has been getting the pain on and off for 1 month.
Movements of the spine okay. Power reduced by 25%.
To see Maniam for opinion. ? for x-ray of the spinal column.
? Scoliosis ? other spinal pathology.
Pain related to frequent and excessive lifting at work.
Actions:
Letter written – re back ache to Workers Comp.”
There was then a visit to Dr Sarian on 12 January 2004 which relevantly recorded the following:
“Worker Comp.
Continued right scapular/shoulder girdle pain from excessive weight lifting at work.
Power and movements reduced by about 15%.
For selected duties and physio.
Actions:
Letter written to WorkCover NSW.Letter written – re referral to listed doctors to Ms Elizabeth Hudson.”
There was then a visit to the same practice on 29 January 2004 which recorded back pain and an entry “pain in the neck got worse recently.” On examination, there was a full range of motion in the applicant’s neck and pain was recorded in the neck muscles and upper shoulder muscles on right lateral flexion.
That entry was the first mention of any issue with the applicant’s neck, and it comes after the incident in January 2004 recorded as continued problems with repetitive lifting and carrying at work.
There is also no evidence of any pathological change to the applicant’s neck at the time these complains were first recorded. The first incident of issues of neck pathology arose in 2015 when the applicant visited the Astley Medical Centre on 26 February 2015. At that time, she saw Dr Lau who recorded the following relevant entries: “Chronic right shoulder pain, last 18 months since last pregnancy. No trauma/injury associated with neck pain and intermittent tingling right upper limb, not had any previous imaging done.” The doctor recorded mild tenderness to the right side of the applicant’s neck with a normal range of movement on a tender medial upper scapular.
A report to Dr Lau from the applicant’s physiotherapist, Ms Quispe dated 15 May 2015 noted the following:
“Shannon Marshall attended her initial physiotherapy consultation on 04/05/2015. Shannon presented for treatment for her constant ’nagging, annoying‘ pain in the right side of her neck that extended to the right upper back and down to the right upper limb of the hands. Shannon reported also intermittent paraesthesia in the right arm.
Shannon reported her symptoms commenced about three weeks ago. Reportedly, Shannon woke up fine, however, as the day went by, she developed acute pain in the neck.”
Understandably, given the severity of these symptoms, the applicant underwent radiological examination which revealed the disc pathology in her cervical spine.
However, there is nothing in the medical records between approximately 2004 and 2015 which suggests any causal link between the incident in June 2003 and the onset of the applicant’s neck pathology in 2015.
In my view, it is not sufficient to simply say that there was no other incident which might explain the onset of the cervical spine and right shoulder symptoms. As Kirby P noted in Kooragang, the mere proof that certain events occurred which predisposed the worker to a subsequent injury will not, of itself, be sufficient to establish that such incapacity results from a work injury.
As has been noted, the applicant bares the onus of proving a causal link between the incident in question and her cervical and right upper extremity problems.
In my view, she has not done so. The applicant relies on the report of Dr Bodel in support of her claim for permanent impairment. That report takes a history of the applicant “straining her neck” and upper back. There was no mention of the right upper extremity. Dr Bodel took a history of the neck pain never having settled and instead they were deteriorating overtime without additional accident or injury.
With respect to Dr Bodel, that is not an accurate history of the applicant’s condition. As noted, there was no mention of any issue with the applicant’s neck for several months following the incident at issue, and indeed those symptoms were first reported after the January 2004 work related problems which gave rise to the applicant making and completing a separate claim.
Given that Dr Bodel did not have an accurate history from the applicant, including the evidence which referred to the onset of neck pain in or about 2015, I do not prefer his opinion. The background of the applicant undergoing radiological investigation in 2015 is a history of neck pain over several months, not some 12 years. Likewise, the applicant’s complaints initially concerned her thoracic spine, not her right shoulder. The right shoulder complaints were made following the problems at work in 2004.
This being the case, I cannot be satisfied on the balance of probabilities that the preponderance of the medical and lay evidence demonstrates that the applicant suffered injuries to her cervical spine and right upper extremity (shoulder) in the course of her employment with the respondent in the incident at issue on 26 June 2003.
For these reasons, there will be an award for the respondent in relation to this matter.
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