McLellan v Woolworths Group Limited
[2022] NSWPIC 407
•25 July 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | McLellan v Woolworths Group Limited [2022] NSWPIC 407 |
| APPLICANT: | Terance McLellan |
| RESPONDENT: | Woolworths Group Limited |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 25 July 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 (1987 Act) for injury to his cervical spine; left shoulder and right shoulder (consequential) resulting from the nature and conditions of employment with the respondent; the respondent accepts the applicant sustained injury to his cervical spine but disputes alleged injury to the right left shoulder and right shoulder (consequential); the respondent also disputes the deemed date of injury to be the date the applicant made his claim for permanent impairment compensation; Held – the applicant sustained injury to his left shoulder and right shoulder (consequential) as a result of the nature and conditions of his employment; with the deemed date of injury being the date the applicant made his claim for permanent impairment compensation under section 66 of the 1987 Act. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained injury to his left shoulder in the course of his employment with the respondent as a result of the nature and conditions of his employment with the respondent. The applicant’s employment with the respondent is the main contributing factor to that injury. 2. The applicant sustained consequential injury to his right shoulder. 3. The deemed date of injury for the applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 is 28 June 2021, being the date the applicant made his claim for permanent impairment compensation for injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) (consequential) as a result of the nature and conditions of his employment with the respondent. 4. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) (consequential) in the course of his employment with the respondent, with a deemed date of injury of 28 June 2021, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are: (a) Application to Resolve a Dispute and attached documents, (b) Reply and attached documents, and (c) Application to Admit Late Documents dated 20 June 2022 and attached documents lodged on behalf of the applicant. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Terance McLellan (Mr McLellan) initially commenced employment with the respondent, Woolworths Group Ltd, (Woolworths) on a casual basis in 2007. Mr McClellan subsequently progressed to full time employment in 2009, working as a store person. Mr McLellan’s employment with Woolworths was terminated in May 2020. Mr McLellan is right hand dominant.
Mr McLellan claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 20% whole person impairment resulting from injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) in the course of his employment with Woolworths.
The circumstances of Mr McLellan’s injury are described in the following terms:
“Throughout the course of his employment as a storeman between approximately 2007 and December 2017 the applicant was required to repetitively lift and carry heavy items weighting up to 30 kilograms, including lefts of pork or lamb, and in the course of that employment began experiencing symptoms in his left shoulder and neck from 2012 onwards.
By 2014 the applicant’s left shoulder and neck condition had deteriorated and on 17 June 2014 the applicant suffered an acute exacerbation while repetitively lifting heavy cuts of meat, when he felt the onset of a more intense pain in his left shoulder.
The nature and conditions of the applicant’s employment between 2007 and December 2017 resulted in injury to the left shoulder and cervical spine and caused the development of a consequential condition affecting the right shoulder.
The insurer has accepted a left shoulder injury and allocated a deemed date of injury of 17 June 2014 which the applicant has adopted as the deemed date of injury relative to the injury pleaded above.
In the alternative the applicant relies on the last date of causative employment or the date of the claim for lump sum compensation as the deemed date of injury for the purposes of the Act.”
Mr McLellan’s claim for permanent impairment compensation is declined and he has been issued with notices dated 16 July 2019[1] and 20 July 2021[2] in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998, which are specific to his claim. In essence, Woolworths disputes Mr McLellan has sustained injury to his left shoulder as a result of the nature and conditions of his employment with Woolworths and/or on 17 June 2014, Woolworths disputes Mr McLellan has sustained consequential injury to his right shoulder and Woolworths disputes the level of permanent impairment Mr McLellan has sustained resulting from injury sustained in the course of his employment with Woolworths.
[1] Application to Resolve (ARD) a Dispute at page 51.
[2] ARD at page 63.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Mr McLellan sustained injury to his left shoulder as a result of the nature and conditions of his employment and/or on 17 June 2014;
(b) whether Mr McLellan sustained consequential injury to his right shoulder;
(c) the level of percentage of whole person impairment Mr McLellan has sustained resulting from injury he sustained in the course of his employment, and
(d) the deemed date of injury for the purposes of Mr McLellan’s claim for permanent impairment compensation.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)
The parties attended a teleconference on 12 May 2022. Mr Morgan of counsel appeared for Mr McLellan, instructed by Ms Karam. Ms Dunn appeared for Woolworths. Mr McLellan was present.
With Mr McLellan’s claim unresolved at teleconference, the parties attended a conciliation/arbitration hearing on 17 June 2022. Mr Morgan again appeared for Mr McLellan, instructed by Ms Karam. Mr Grimes of counsel appeared for Woolworths instructed by Ms Dunn. Mr McLellan was present.
Following my discussions with counsel, I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 20 June 2022 and attached document lodged on behalf of Mr McLellan at my direction.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witness.
FINDINGS AND REASONS
Brief review of evidence
Mr McLellan’s statements
Mr McLellan has provided a number of statements. The first is dated 1 March 2019[3], the second is dated 1 July 2019[4], the third is dated 5 February 2020[5], and the fourth is dated 22 February 2022[6]
[3] ARD at page 1.
[4] ARD at page 10.
[5] ARD at page 12.
[6] ARD at page 39.
Mr McLellan described the work duties required of him during the course of his employment with Woolworths. He said the duties which he undertook between 2007 and about 2011 “were very strenuous and involved a significant amount of manual labour, particularly using my arms and shoulders”. He said with his promotion to the facilities team in about 2011 while his duties “differed slightly”, his duties “still involved a significant amount of manual labour”. He provided a description of these duties:
“I would begin my shift by unloading a pallet full of cyropacked meat. There were about 40-50 cuts of meat in a pallet and the pieces of meat individually weighed up to 35 kilograms.
Once I had unpacked all the meat from the pallet, I would use my hands and arms to unravel each individual piece from the plastic wrap that it was secured in.
To dispose of the meat, I stood over a table with a large bin to my left. I would hold the cut of meat in my left hand and use my right hand to slice it into a bin so that it could be disposed of safely.
In between unpacking and disposing of the meat, I was also required to sweep the floors and clear out the bins at my worksite. I would complete these duties on repeat for the entirety of my shift.”
Mr McLellan explained he first experienced pain and discomfort in his left shoulder in about 2012, with his symptoms intensifying “over the next few months”. When he reported his symptoms, he was placed on “an early intervention program” so as to prevent further intensifying of his symptoms, which he said was helpful. However, he said “as soon as I returned to work the pain in my left shoulder would return.” Mr McLellan explained too that while performing his work duties with his injured left shoulder he “became increasingly dependent on his right shoulder”.
Mr McLellan said:
“By late 2013, after continually reporting the pain in my shoulders, it was agreed with my employer that I should be re-located to a different area of the warehouse, where the duties were less strenuous. As a result, I began working in the TC room and as opposed to lifting heavy pieces of meat, I was working with much lighter produce, such as milk and eggs”.
However, after working in what he referred to as the “TC room” for a couple of weeks, Mr McLellan said he was required to return to his duties with the facilities team and again “noticed an increase to the pain and stiffness in both my left and right shoulders”. Of his return to his previous duties, Mr McLellan said, “I found it very difficult to perform my duties at work” and said that on 17 June 2014 while undertaking his duties he experienced a sudden onset of extreme pain in his left shoulder Mr McLellan shortly thereafter consulted with Dr Lim and was referred for diagnostic imaging, physiotherapy and was prescribed analgesic medication. In about July 2014 Mr McLellan returned to work after a three week suspension but his left shoulder remained symptomatic and he said, “I became increasingly dependent on my right shoulder performing my duties”. He came under the specialist care of Dr Perko at about this time.
Mr McLellan came to surgical treatment in the nature of a left shoulder arthroscopy and bursectomy on 5 May 2015 under the care of Dr Perko, which he said, “was somewhat helpful in resolving his pain”. However, Mr McLellan said his left shoulder remained problematic and he became even more dependent on his right shoulder. While Mr McLellan returned to work on restricted duties in July 2015 his return to work was not without complication and he ultimately ceased working altogether at the end of May 2019.
Claim for permanent impairment compensation
Mr McLellan’s claim for permanent impairment compensation payable under s 66 of the 1987 Act is made under cover of letter dated 28 June 2021 from his solicitors.
Treating medical evidence
Diagnostic imaging
An MRI report left shoulder dated 21 January 2016[7] provided comparison with an MRI left shoulder report from September 2014 with impression:
“It appears on comparison with the prior report no significant change has occurred. There is minor/mild tendinopathy in the anterior supraspinatus and mid to posterior infraspinatus tendon with a definite tear. Minimal subacromial bursitis. Mild AC joint disease.”
[7] ARD at page 126.
An MRI report left shoulder dated 1 May 2018[8] provided impression:
“no definite cause for the pain is identified. Minor AC joint degenerative change. No rotator cuff tear.”
[8] ARD at page 128.
An MRI report left shoulder dated 11 December 2018[9] provided a clinical history of “deterioration bilateral shoulder pain with restriction of movement” and conclusion “Degenerative changes acromioclavicular joint. Low grade supraspinatus tendinosis.”
[9] ARD at page 130.
An MRI report right shoulder dated 10 December 2018[10] provided a clinical history of “deterioration shoulder pain with restriction in movement” and conclusion “Subacromial bursitis. Rotator cuff intact”.
[10] ARD at page 129.
MRI report cervical spine dated 15 March 2021[11] provided a clinical history of neck pain and a conclusion of degenerative change, multilevel foraminal stenosis and potential nerve root compression at right C6 and both C7 levels.
[11] ARD at page 131.
High Street Family Doctors
Mr McLellan came under the general medical care of doctors practising out of High Street Family Doctors and the clinical records of the medical practice are in evidence[12]. Mr McLellan presented with left shoulder pain on 26 October 2012 with Dr Leung noting at that time “denied trauma, repetitive motion”. He re-presented with left shoulder pain again on 31 January 2014 with Dr Wang noting at that time “after elevating while repairing car last weekend”. When he re-presented on 13 August 2015 Dr Youssef noted “had left shoulder surgery in March, still having physiotherapy twice a week, off work currently”. On 19 March 2016 Dr Moss noted of Mr McLellan, “L shoulder consulting specialist in Randwick”
Workers Doctors
[12] ARD commencing at page 622.
Mr McLellan also came under the general medical care of doctors practising out of Workers Doctors and the clinical records of the medical practice are in evidence[13]. Mr McLellan presented with “a recurrent L) shoulder issue of concern” on 25 June 2014 with Dr Lim noting at that time “hurt it last Tuesday 24 June 2014” and making reference to Mr McLellan working with Woolworths and “opening product”. On 30 June 2014 Dr Lim noted Mr McLellan “filled in claim form” and was “managing ok” and Alistair Choie, physiotherapist noted:
[13] ARD commencing at page 480.
“wow RDC minchinbury
L shoulder
DOI 17/06/14
Repeated lifting of meat to shoulder height and unloading crates at shoulder height
Gradually worsened
PHX
Initially occurred at work 1 yr ago reported injury
Had some physio
Pain been tolerable till now
Nil investigations to date.”
Mr McLellan continued under the care of Dr Lim and Mr Choie and on 22 October 2014 Mr Choie noted for the first time “seen perko happy with shoulder”. However, Mr McLellan was noted by Mr Choie on 5 December 2014 to have come to cortisone injection, with Mr Choie noting for the first time on 19 December 2014 “not much change post cortisone”. On 9 January 2015 Dr Lim noted of Mr McLellan “went to work Wednesday, did task, got pain … aggravated condition” and on 16 January 2015 Mr Choie noted Mr McLellan had aggravated his shoulder at work.
On 30 January 2015 Dr Lim noted Mr McLellan had consulted with Dr Perko and wrote “has concerns about warehouse” and that same day Mr Choie noted Dr Perko had recommended surgical treatment. On 20 February 2015 Mr Choie described Mr McLellan as still waiting approval for the proposed surgical treatment and for the first time noted “getting pressure from work”. On 27 March 2015 Mr Choie noted Mr McLellan was to undergo his surgical treatment on 5 May 2015. While on 8 May 2015 Dr Lim noted Mr McLellan had come to surgical treatment and was “in sling for 5 weeks”, on 29 May 2015 Erin Carmody, psychologist, said of Mr McLellan “out of sling 3 weeks early”.
Mr McLellan continued to consult with Dr Lim and Mr Choie about his left shoulder injury and on 13 July 2015 Mr Choie wrote for the first time “shoulder pain worse overall, over all shoulder ROM better, to see perko.” On 26 August 2015 Mr Choie wrote “pain more constant, ROM better” and it is evident Mr McLellan remained under the specialist care of Dr Perko “for strengthening”. On 14 September 2015 Mr Choie noted of Mr McLellan “shoulder still sore but ROM greatly improved”.
Mr McLellan still continued to consult with Dr Lim and Mr Choie about his left shoulder injury and on 6 December 2016 Mr Choie described Mr McLellan for the first time as being “in significantly more pain”. Mr McLellan continued to consult with Dr Lim and Mr Choie and on review of 12 April 2018 Dr Lim described Mr McLellan’s shoulder pain in terms of “deteriorating not settling”.
On 18 May 2018 Dr Rubio noted Mr McLellan was working restricted duties but suffered “ongoing pain” and on 5 November 2018 Dr Rubio described him as “having severe pain in shoulders, not able to do some physical daily activities or home chores”. On 5 March 2019 Dr Lee relevantly noted of Mr McLellan’s “ongoing issues”, “right shoulder pain for few months … ongoing left shoulder pain, worse than right shoulder … left shoulder pain when in the cool room for 10 mins.” On 19 March 2019, Dr Rubio made a note of bilateral shoulder pain “worse after work” and it is evident Mr McLellan continued to consult with the doctors at the medical practice in respect of his now bilateral shoulder pain, with Dr Rubio noting on 24 February 2021 that Mr McLellan was suffering bilateral shoulder “ongoing pain and discomfort”.
In a report dated 30 May 2019[14] Dr Lim provided opinion in part that Mr McLellan had sustained a left shoulder injury in the nature of “L) shoulder bursitis, post-surgical repair …
R) shoulder strain (overcompensation) bursitis (MRI)” and said:“From my understanding of the injured worker’s role as a store person, it would be reasonable to conclude that the mechanism of injury was the direct result of performing those specific tasks. The history given is consistent with employment being the main contributing factor to the injury. I do not have medical evidence to indicate an alternate mechanism of injury, but would be happy to consider such evidence if provided to me.”
[14] ARD at page 105.
Dr Perko
Following referral from Dr Lim, Mr McLellan came under the orthopaedic care of Dr Perko and a number of Dr Perko’s reports[15] are in evidence, as is his operation report dated 5 May 2015[16]. Dr Perko has not treated Mr McLellan since 26 August 2015.
[15] ARD commencing at page 112.
[16] ARD at page 103.
In his initial report dated 28 January 2015 Dr Perko reported relevant to Mr McLellan’s left shoulder pain:
“He has had problems since last year but most severely since June 2014. He was required to open packs of meat. He held the packs which weighed from 1 – 20kg with the left hand balanced on the edge of a bin and opened the pack with the right. The left shoulder became progressively more painful, and his workload was relatively strenuous and with increasing work load the left shoulder became increasingly painful. Work was repetitive and that was his main activity. After the initial flare up in June he was off work for two weeks and then returned to work on lighter duties however his shoulder was again aggravated when cleaning guard rails when he was holding on with the left arm and repeatedly forward reaching with the right aggravated the shoulder. He has been off work since.”
Dr Perko provided two reports to Unified Healthcare Group in response to a request for same. The first is dated 8 March 2019[17] and the second is dated 10 August 2021[18]. Relevant to Mr McLellan’s left shoulder, Dr Perko provided diagnosis of subacromial impingement syndrome associated with bursitis and bursal surface rotator cuff injury, and in response to specific questioning Dr Perko provided opinion the work duties Mr McLellan described to him would be consistent with Mr McLellan having sustained injury to his left shoulder and that his employment with Woolworths was the main contributing factor to injury. Dr Perko noted too Mr McLellan denied prior problems with his left shoulder and had worked at the same job for the preceding five years.
[17] ARD at page 119.
[18] ARD at page 122.
Dr Perko confirmed Mr McLellan came to surgical treatment under his care on 5 May 2015 and while he said in his second report dated 10 August 2021 he had no record of right shoulder complaint in his notes and had not treated Mr McLellan for right shoulder complaint, he accepted in his earlier report dated 8 March 2019:
“Mr McLellan described the onset of right shoulder pain which occurred with repeated reaching activities and altered use since developing left shoulder symptoms. I consider it a reasonable explanation that the right shoulder symptoms occurred as an over reliance due to altered use and heavy activities required.”
Independent medical evidence
Dr Powell
Mr McLellan was orthopaedically assessed by Dr Powell in his capacity as independent medical examiner. Dr Powell provided a report dated 11 November 2015[19]. Dr Powell reported a history of Mr McLellan having worked with Woolworths for six or seven years on a full-time basis. He described Mr McLellan as being “a little vague on the dates”. Of Mr McLellan’s work duties, he said:
“His work involves unloading pallets of cryo-packed eat, cutting the packing around it with a knife and tipping it into bins. A lot of the meat is pork and other cuts.
It can weigh up to 35kg a piece and there are between 40 and 50 cuts on a pallet.
He needs to lift from the pallet which can be floor height to just below waist height, pick up the piece with his left hand and then hold the piece out over a bin slicing covering free with a knife using his right hand and dropping the contents into the bin. He is not sure how many of these he does a day but it is quite a few”
[19] Reply at page 1.
Dr Powell noted Mr McLellan’s left shoulder to become symptomatic in early 2013, with periodic improvement with physiotherapy and acupuncture. Dr Powell noted too that in early 2014 while Mr McLellan was “doing his work lifting cuts of meat and holding them out over a bin” Mr McLellan experienced “a sudden pain which was quite severe and more intense than those he had suffered previously over the left shoulder region.”
Dr Powell reported Mr McLellan came to surgical treatment of his left shoulder in May 2015 under the orthopaedic care of Dr Perko. Dr Powell noted Mr McLellan’s left shoulder was placed in a sling for about seven weeks after surgery and that during this time he suffered a frozen shoulder, which resolved fairly quickly under the medical management of Dr Perko.
Relevant to his left shoulder injury, Dr Powell wrote:
“Mr McLellan has left shoulder tendinopathy and early degenerative change in the acromioclavicular joint and the glenohumeral joint.
He has been rendered symptomatic through activities in his work, particularly lifting weights away from his body on a repetitive basis becoming more severe and coming to a decompressive procedure which has improved some aspects of his troubles but he continues to have aching about the shoulder and irritability.”
Dr Powell explained further:
“He has become symptomatic principally due to the mechanical aspect of his work and especially lifting his arm with the weight away from his body to perform activities and this is repetitive. This is a highly disadvantageous mechanical position for the shoulder to be in even if healthy and in a diseased shoulder it is even more likely to result in the development of symptoms.
Given that it is known that he has rotator cuff degenerative and shoulder degenerate disease on the left side, it is reasonable I think that he will start to have similar changes elsewhere in his body, perhaps in the other shoulder, perhaps in the neck and back and so on.
It is known that he has these difficulties with the left shoulder and the act of lifting the arm away from the body with weight is likely to render him symptomatic. Even if he recovers from this particular episode as the tissues will have difficulty handling the load.
Alterations in undertaking activities with the upper limbs in patients with the disease process going forward as they enter advancing age is wise and includes attempting to modify activities in both home and work to keeping the arm by the side as this places much less mechanical load upon the rotator cuff tendons and associated structures about the shoulder and reduces the risk of mechanical aggravation or advancement of the disease over time.”
Relevant to his right shoulder injury, Dr Powell reported on examination as at the time of his assessment of Mr McLellan:
“In the right shoulder there is no tenderness to palpation and light prominence of the acromioclavicular joint and range of motion shows flexion to 160 degrees, extension to 40 degrees, and abduction to 160 degrees with adduction to 40 degrees with crepitus through to mid-range with no desynchrony. There are no complaints of symptoms associated with this. External rotation is at 60 degrees and internal rotation at 60 degrees. The rotator cuff is clinically intact. Impingement signs are negative.”
Dr Smith
Mr McLellan was also orthopaedically assessed by Dr Smith in his capacity as independent medical examiner. Dr Smith has provided reports dated 7 August 2018[20] and 4 July 2019[21]. In his initial report Dr Smith said of Mr McLellan’s history of injury:
“He continues to work with Woolworths in their warehouse at Minchinbury. He has been with the company for about 10 years.
He said he was involved in meat reclaiming. This process involves taking meat out of cryo pack containers, so the meat can be disposed of as it is no longer saleable. He said in a three-month period, he would have disposed of 50 tons of meat in this fashion. He would stand at a table with a bin on his left, he would hold the pack up and open the pack with a knife and the meat would drop into the bin.
With regard to the date of injury of 17 June 2014, he cannot recall he exact time of onset of symptoms, but for many months prior to that he was having symptoms of pain in the left shoulder, in the anterior shoulder radiating towards the medial chest on the left and he developed shoulder blade pain. He said he reported the symptoms and saw a doctor employed by the company and had physiotherapy on site. He went through a remediation program the company sponsored.
He describes one day, for no apparent reason, having pain running down his left arm into the biceps which was very severe, so attended his own general practitioner, Dr Lim, who he continues with in Parramatta. He is now working two days a week, four hours a day. He describes having headaches and shoulder pains after the long drive backwards and forwards from his home to work… he has pain running down his right arm into the hand almost every day. There is numbness in his left hand almost every day.”
[20] Reply at page 19.
[21] Reply at page 12.
Dr Smith noted Mr McLellan had come to left shoulder surgery on 4 May 2015 under the care of Dr Perko without relief and has also undergone injections into the shoulder.
In his subsequent report Dr Smith described Mr McLellan as continuing to work two days a week, four hours a day. He reported Mr McLellan said, “he does not do a great deal of work.” Dr Smith said while overall Mr McLellan was “somewhat better since when I last saw him”, Mr McLellan described his right shoulder as being “somewhat worse than the left shoulder”.
Following review of the diagnostic imaging made available to him and his clinical examination of Mr McLellan’s cervical spine and both shoulders during assessment on both occasions, Dr Smith formed the view Mr McLellan suffered symptomatic cervical degenerative disease causing referred pain to his shoulders. Relevant to the bilateral shoulder diagnostic imaging Mr McLellan had undertaken, Dr Smith wrote in his most recent report:
“There is basically very little wrong with his shoulders on radiological examination when I last saw him and that remains the case in the most recent MRIs including the MRI of the right shoulder.”
Regarding assessment of permanent impairment, while Dr Smith provided an assessment of “zero whole person impairment” he also provided opinion “it is inappropriate to do an impairment assessment on someone who has exactly the same restriction in the range of movement on both shoulders, as there is no pathology that would produce that outcome and is a manufactured physical sign”.
At the time of reporting Dr Smith noted of Mr McLellan “he has not had any investigations or treatment regarding his cervical spine”.
Dr Assem
Mr McLellan was assessed by Dr Assem in his capacity as independent medical examiner. Dr Assem is a rehabilitation specialist. Dr Assem provided reports dated 27 February 2019[22], 20 April 2020[23], 7 December 2021[24], 26 May 2021[25] and 22 February 2022[26]. In his initial report Dr Assem described a history of injury:
“Mr McLellan developed the gradual onset of left shoulder discomfort that he attributed to the nature and conditions of his employment as it involved repetitive heavy lifting and repetitive forceful upper limb activities. On 17 June 2014, there was an aggravation of symptoms after lifting heavy cuts of meat repetitively prompting him to notify his supervisor.
He consulted Dr Lim who placed him on suitable duties and arrange a course of physiotherapy treatment and acupuncture that provided temporary relief. He was referred for an MRI scan that showed bursitis and bursal surface changes to the distal supraspinatus. He consulted Dr Perko, Orthopaedic Surgeon, who noted a painful arc and catching on humeral elevation and rotation. As he failed to improve with conservative management, Dr Perko admitted him to Castlecrag Private Hospital on 4 May 2015 for a left shoulder arthroscopy, acromioplasty, bursectomy and exploration of long head of biceps. Post-operatively his arm was immobilised in a sling for six weeks before he commenced physiotherapy treatment.
His shoulder range of motion improved but there was persistent discomfort. He remained off work for seven months. His employer initially had difficulty identifying suitable duties that he would be able to perform. He was eventually relocated to Erskine Park Liquor Distribution Centre working four hours per day, two days a week with a lifting restriction of 15kg. His duties involved picking 200 empty boxes each day from one section into a bin and stacking them in a different section. As a result, he began to develop pain in his right shoulder that he attributed to compensatory over-use. Last week, he was relocated to work within the Minchinbury Distribution Centre but he has not been provided with any specific duties.”
[22] ARD at page 67.
[23] ARD at page 74.
[24] ARD at page 81.
[25] ARD at page 88.
[26] ARD at page 96.
At the time of initial assessment, Mr McLellan complained of pain in both shoulders, worse on the left. Following clinical examination and in response to specific questioning Dr Assem said:
(a) Mr McLellan developed left shoulder pain due to the nature and conditions of his employment as it involved repetitive forceful upper limb activities as described by Mr McLellan. While there was improvement in his shoulder range of motion following surgical treatment under the care of Dr Perko, Mr McLellan “continued to have persistent discomfort”.
(b) Mr McLellan began to develop similar symptoms in his right shoulder after returning to work on suitable duties and repetitively lifting empty cardboard boxes up to 200 times each day. The pain and stiffness Mr McLellan suffers in his right shoulder interferes with his usual activities and Mr McLellan attributed his right shoulder symptoms to “compensatory over-use”.
(c) While Dr Smith has provided opinion in his initial report that Mr McLellan’s left shoulder condition was secondary to a cervical spine injury, Mr McLellan had not reported any neck complaint to him and clinical examination had demonstrated “a normal pain-free range of cervical movement”.
When Mr McLellan was re-assessed by Dr Assem just over a year later on 20 April 2020 Dr Assem relevantly noted Mr McLellan’s right shoulder symptoms had deteriorated despite the fact Mr McLellan reported he had not returned to work since he was previously assessed by Dr Assem.
When Mr McLellan was re-assessed by Dr Assem in or about early December 2020 Mr McLellan reported his right shoulder symptoms had worsened and he was experiencing difficulties reaching or undertaking any activities above chest level. In response to specific questioning on this occasion Dr Assem relevantly said.
“Mr McLellan sustained an injury to his left shoulder due to the nature and conditions of his employment. He required arthroscopic surgery on 5 May 2015. After that, he developed symptoms in his right shoulder due to compensatory overuse …”
When Mr McLellan was most recently re-assessed by Dr Assem on 26 May 2021, Dr Assem again said in response to specific questioning Mr McLellan developed left shoulder pain due to the nature and conditions of his employment and had begun to develop similar symptoms in his right shoulder after returning to work on suitable duties and repetitively lifting empty cardboard boxes up to 200 times a day. Specific to causation of Mr McLellan’s right shoulder injury, Dr Assem provided opinion:
“According to the information provided and assuming that it is accurate and correct, he developed right shoulder discomfort repetitive activities with his uninjured right shoulder while his left arm was immobilized in a sling.”
In his supplementary report dated 22 February 2022 Dr Assem confirmed his previously expressed diagnosis Mr McLellan had sustained injury to his left shoulder due to the nature and conditions of his employment with his right shoulder becoming symptomatic due to compensatory overuse.
Submissions
Mr Grimes and Mr Morgan made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance provided to me in this matter. A recording of counsels’ submissions is available to the parties and are not reproduced here.
Determination
Injury
While in making his claim for compensation payable under the 1987 Act Mr McLellan relevantly alleged the “nature and conditions” of his employment with Woolworths as a storeman over a period between 2007 and 2017 resulted in injury to his left shoulder, it must be remembered that in the decision of Toplis v Coles Group[27] Deputy President Roche made it clear the term “nature and conditions” is not a term used in the New South Wales workers compensation legislation and said:
“the general reference to the parties and the Arbitrator to a ‘nature and conditions’ injury was unhelpful.”
[27] [2009] NSWWCCPD 70.
However, it must also be remembered that Neilson J had earlier said in Mirkivoic v Davids Holdings PL[28]:
“The phrase ‘nature and conditions of employment’ is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as ‘quaint’. My colleague Burke J has frequently referred to it as a ‘meaningless concept’.
It is used in this place [the then Compensation Court of NSW] as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, eg repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity.
Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within s 15 of the Act (where pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within s 16.”
[28] (1995) 11 NSWCCR 656.
While it may be there is admonishment for the use of the term ‘nature and conditions of employment’ as a means to abbreviate the circumstances of injury alleged by an injured worker, it is a fact, as acknowledged by Neilson J above and the Court of Appeal on occasion[29], that the expression is commonly used in the New South Wales workers compensation area of law.
[29] Switzerland Insurance WC (NSW) Ltd v Burley [1996] NSWCA 512; Wyong Shire Council v Paterson [2005] NSWCA 74.
Section 4 of the 1987 Act defines injury as a personal injury arising out of or in the course of employment, relevantly including injury in the nature of a disease injury, which includes a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contraction of the disease. The law in relation to “main contributing factor” was considered by Deputy President Snell in AV v AW[30] with comment that the test of “main contributing factor” is one of causation that involved consideration of the evidence overall.
[30] [2020] NSWWCCPD 9.
Woolworths disputes Mr McClellan sustained injury to left shoulder as a result of the nature and conditions of his employment with Woolworths, and Mr McLellan has the onus of proving he sustained injury to his left shoulder as a result of the nature and conditions of his employment with Woolworths and that his employment with Woolworths was the main contributing factor to such injury. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[31] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[31] [2008] NSWCA 246 (Nguyen).
Relevant to this issue of causation of the injury Mr McLellan has sustained to left shoulder in Kooragang v Cement Pty Ltd v Bates[32] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[32] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Mr McLellan said he commenced working with Woolworths in 2007 and his employment was terminated in 2020. Mr McLellan said he worked with Woolworths as a store person and it is not contested the duties Mr McLellan undertook in this role were strenuous and repetitive in nature.
It is evident Mr McLellan has sustained injury to his left shoulder. Mr McLellan’s first complaint of left shoulder pain is recorded by Dr Leung on 26 October 2012 with Mr McLellan ultimately coming to surgical treatment in the nature of left shoulder arthroscopy, acromioplasty, bursectomy and exploration of long head of biceps under the care of Dr Perko on 5 May 2015, the cost of which was met by Woolworths. Although it is apparent that following this surgical treatment Mr McLellan remained in a sling for a relatively short period of time it is also apparent that despite this surgical treatment Mr McLellan’s left shoulder remained significantly problematic with him continuing to repeatedly complain to both his general practitioners and his treating physiotherapist about left shoulder pain for which he received treatment
One of Mr McLellan’s treating general practitioners at Workers Doctors, Dr Lim, has in essence provided opinion the nature and conditions of Mr McLellan’s employment with Woolworths was the main contributing factor to the injury he has sustained to his left shoulder. Mr McLellan’s treating orthopaedic surgeon, Dr Perko, under whose care Mr McLellan came to surgical treatment in the nature of left shoulder arthroscopy, acromioplasty, bursectomy and exploration of long head of biceps has also provided opinion the nature and conditions of Mr McLellan’s employment with Woolworths was the main contributing factor to the injury he sustained to his left shoulder. Dr Powell, who had the opportunity to orthopaedically assess Mr McLellan in his capacity as independent medical examiner provided similar opinion as early as 11 November 2015. Dr Assem, who had the opportunity to assess Mr McLellan in his capacity as independent medical examiner on four separate occasions between 2019 and 2021, provided similar opinion following each assessment. Although Dr Smith, who had the opportunity to orthopaedically assess Mr McLellan in his capacity as independent medical examiner in 2018 and again in 2019 in essence provided opinion McLellan’s bilateral shoulder pain was referred pain from his symptomatic cervical degenerative disease injury, Dr Smith’s opinion is at odds with that of Dr Lim, Dr Perko and Dr Powell, and I do not accept it, particularly so as Dr Perko is Mr McLellan’s treating orthopaedic surgeon under whose care he came to arthroscopic surgical treatment of his left shoulder and at the time of providing his opinion, Dr Smith had no diagnostic imaging of Mr McLellan’s cervical spine available to him to assist with his diagnosis.
I am of the view Mr McLellan has provided a credible history regarding the onset of his left shoulder symptoms in or about 2012 due to the nature and conditions of his employment with Woolworths between 2007 and 17 June 2014, being the date when he suffered an acute exacerbation of his left shoulder symptoms.
Having considered the evidence as a whole and careful consideration of counsel’s submissions, and noting Mr McLellan’s left shoulder was apparently asymptomatic until complaint in or about 2012, I accept Mr McLellan has sustained injury to his left shoulder in the nature of a disease injury contracted in the course of his employment with Woolworths and that his employment with Woolworths was the main contributing factor to that injury.
I have determined Mr McLellan sustained injury to his left shoulder in the course of his employment with Woolworths, and with allegation by Mr McLellan that the injury he has sustained to his right shoulder is in the nature of a consequential injury, I am mindful of Deputy President Snell’s discussion in Trustees of the Roman Catholic Church of the Dioceses of Paramatta v Brennan[33]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon V Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012] NSWWCCP 8. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act”.
[33] [2016] NSWWCCPD23.
Mr McLellan said that after he initially experienced pain in his left shoulder in or about 2012 and returned to work following “an early intervention program”, he became increasing dependent on his right shoulder while undertaking his work duties. He said too that while his surgical treatment under the care of Dr Perko “was somewhat helpful in resolving his pain”, his left shoulder remained significantly problematic and he became even more dependent on his right shoulder.
Mr McLellan’s first complaint of right shoulder pain is recorded by Dr Rubio on 5 November 2018, being a time when Mr McLellan was working suitable duties with Woolworths and being a time some six months after Dr Lim had described Mr McLellan’s left shoulder condition as “deteriorating not settling”. Dr Lim, who practises out of the same medical practice as Dr Rubio has provided opinion the injury Mr McLellan has sustained to his right shoulder is in the nature of consequential injury. While Dr Perko accepted Mr McLellan made no complaint to him about right shoulder symptoms prior to him being discharged from his care on 26 August 2015 (some four months after surgical treatment to his left shoulder), he provided opinion it was “a reasonable explanation that the right shoulder injury occurred as an over reliance due to altered use and heavy activities required.” Dr Assem accepted that following surgical treatment to his left shoulder Mr McLellan developed left shoulder symptoms in his right shoulder due to “compensatory overuse”. Although Dr Smith in essence provided opinion Mr McLellan’s bilateral shoulder pain was referred pain from his symptomatic cervical degenerative disease injury, as I have previously noted, Dr Smith’s opinion is at odds with that of Dr Lim, Dr Perko and Dr Powell, and I do not accept it for reasons discussed above.
I am of the view Mr McLellan has provided a credible history regarding the onset of his right shoulder symptoms after he became more reliant on his right shoulder when his left shoulder became and remained significantly symptomatic, despite surgical treatment. Having considered the evidence as a whole and careful consideration of counsel’s submissions I accept Mr McLellan has sustained consequential injury to his right shoulder.
Deemed date of injury
Liability is accepted for the injury Mr McLellan sustained to his cervical spine in the course of his employment with Woolworths with injury being in the nature of an aggravation of a disease injury. I have determined Mr McLellan sustained injury to his left shoulder in the nature of a disease injury contracted in the course of his employment with Woolworths and that his employment with Woolworths was the main contributing factor to that injury. I have also determined Mr McLellan sustained consequential injury to his right shoulder.
I am now required to determine the deemed date of injury for the purposes of Mr McLellan’s claim for permanent impairment compensation. Sections 15 and 16 of the 1987 Act are primarily concerned with the setting of the date of injury in the nature of a disease injury, such as that suffered by Mr McLellan. Sections 15 and 16 of the 1987 Act identify the date of injury as (a) date or death or incapacity; or (b) if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury.
The authorities establish there may be more than one deemed date of injury[34] and relevant to Mr McLellan’s claim for permanent impairment compensation which is currently before the Commission I am mindful of former President Keating’s decision in Westpac Banking Corporation v Hungerford[35] which I am bound to follow. As Mr McLellan has made no claim for weekly compensation resulting from injury sustained to his cervical spine, left shoulder and right shoulder (consequential) resulting from the nature and conditions of his employment with Woolworths between 2007 and December 2017 and there is no claim for weekly compensation before me to determine, I am of the view sections 15 and 16 of the 1987 Act fix the deemed date of injury for Mr McLellan’s current claim for permanent impairment compensation at 28 June 2021, being the date of his claim for permanent impairment compensation resulting from injury sustained to his cervical spine, left shoulder and right shoulder (consequential) as a result of the nature and conditions of his employment with Woolworths.
Permanent impairment
[34] Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd and Anor (1998) 45NSW LR 606; Alto Ford Pty Ltd v Antaw (1999) 18 NSWCCR 246; P&O Berkeley Challenge Pty Ltd v Alfonzo (2000) 49NSW LR 481; Stone v Standard Bros Launch Services Pty Limited (2004) NSW CA 277;
[35] [2018] NSWWCCPD 50.
Liability is accepted for the injury Mr McLellan sustained to his cervical spine in the course of his employment with Woolworths. I have determined Mr McLellan sustained injury to his left shoulder in the course of his employment with Woolworths, with his employment being the main contributing factor to his injury. I have determined Mr McLellan sustained consequential injury to his right shoulder. I have also determined thedeemed date of injury for Mr McLellan’s claim for permanent impairment compensation resulting from these injuries is 28 June 2021, being the date Mr McLellan made his claim for premanent impairment compensation for injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) (consequential) as a result of the nature and conditions of his employment with Woolworths.
It is appropriate Mr McLellan’s claim for permanent impairment compensation resulting from injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) (consequential) in the course of his employment with Woolworths, with a deemed date of injury of 28 June 2021, be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 20 June 2022 and attached documents lodged on behalf of Mr McLellan.
SUMMARY
Liability is accepted for the injury Mr McLellan sustained to his cervical spine in the course of his employment with Woolworths. I have determined Mr McLellan sustained injury to his left shoulder in the course of his employment with Woolworths, with his employment being the main contributing factor to his injury. I have determined Mr McLellan sustained consequential injury to his right shoulder.
75. I have determined the deemed date of injury for Mr McLellan’s claim for permanent impairment compensation resulting from these injuries is 28 June 2021, being the date he made Mr McClellan made his claim for permanent impairment compensation resulting from injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) (consequential) as a result of the nature and conditions of his employment with Woolworths.
.
Mr McLellan’s claim for permanent impairment compensation resulting from injury sustained to his cervical spine, left upper extremity (left shoulder) and right upper extremity (right shoulder) in the course of his employment with Woolworths, with a deemed date of injury of 28 June 2021, is to be remitted to the President for referral to a Medical Assessor for assessment of whole person impairment resulting from those injuries. The documents to be forwarded to the Medical Assessor together with this Certificate of Determination – Statement of Reasons are:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 20 June 2022 and attached documents lodged on behalf of Mr McLellan.
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