Michaels v South West Care Services

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Michaels v South West Care Services [2023] NSWPIC 327
APPLICANT:	Lisa Rose Michaels
RESPONDENT:	South West Care Services
Member:	Cameron Burge
DATE OF DECISION:	7 July 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for future surgery; right shoulder injury accepted and proposed surgery reasonably necessary; left shoulder consequential condition said to be caused by overuse disputed by respondent; Held – the applicant does not need to establish the presence of pathology sufficient to establish a section 4 injury in order to establish a consequential condition; Kumar v Royal Comfort Bedding Pty Ltd and Moon v Conmah Pty Ltd discussed and followed; the evidence establishes the applicant suffered consequential condition to her left shoulder as a result of her right shoulder injury; the respondent’s Independent Medical Examination opinion that the applicant suffered a pre-existing connective tissue disorder is not borne out by the objective evidence and is rejected; the proposed left shoulder surgery is reasonably necessary as a result of the consequential condition; the respondent is to pay the costs of and incidental to the bilateral shoulder surgery proposed by the treating surgeon.
determinations made:	The Commission determines: 1. The claim for weekly compensation is discontinued. 2. The applicant suffered an injury to her right shoulder in the course of her employment with the respondent on 20 May 2021. 3. The right shoulder arthroscopic capsular release proposed by Prof Murrell is reasonably necessary as a result of the injury referred to in [2] above. 4. As a result of the injury referred to in [2] above, the applicant suffered a consequential condition to her left upper extremity (shoulder). 5. The left shoulder arthroscopic capsular release proposed by Prof Murrell is reasonably necessary as a result of the consequential condition suffered by the applicant as a result of her injury. 6. The respondent is to pay the costs of and incidental to bilateral arthroscopic capsular releases as proposed by Prof Murrell.

STATEMENT OF REASONS

BACKGROUND

On 20 May 2021, the applicant, Lisa Rose Michaels, was drying bathroom tiles with a cloth in the course of her employment with South West Care Services (the respondent) when she reached overhead to dry a wall and sustained injury to her right shoulder.
Liability for the right shoulder injury is accepted. The applicant alleges as a result of the accepted injury, she suffered a consequential condition to her left shoulder owing to overcompensation. Liability for the alleged consequential condition is disputed.
The applicant brought these proceedings seeking payment of weekly benefits together with bilateral shoulder surgery proposed by treating surgeon, Prof Murrell. At the hearing, the applicant discontinued her claim for weekly benefits and the respondent conceded the proposed surgery to the applicant’s right shoulder was reasonably necessary as a result of the injury at issue. However, the dispute in relation to the alleged consequential condition was maintained.

ISSUES FOR DETERMINATION

The only issue in dispute is whether the applicant suffered a consequential condition to her left shoulder as a result of the accepted right shoulder injury.
At the hearing, the respondent conceded that if a finding in favour of the applicant concerning the presence of the consequential condition was made, then the proposed surgery was reasonably necessary as a result of that condition.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The parties attended a hearing on 3 July 2023. The applicant was represented by Mr Trainor, instructed by Mr Mousas. The respondent was represented by Ms Balendra instructed by Mr Khoshaba.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a) Application to Resolve a Dispute (the Application), and
(b) Reply.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a left shoulder consequential condition

In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. The Deputy President stated:
“35. By asking if Mr Kumar has suffered a section 4 injury to his right shoulder, the arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a section 4 injury to his right shoulder.”
The Deputy President then referred to the facts of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang) in which Kirby P (as he then was) made it clear that in dealing with questions of causation in a workers’ compensation context, what is required is a common-sense evaluation of the causal chain. At [55] in Kumar, the Deputy President noted:
“It is not necessary for Mr Kumar to establish that he has significant pathology in his shoulder, only that the proposed surgery is reasonably necessary as a result of the injury on 19 March 2009.”
In Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon), a matter which involved a compensable injury to the right shoulder allegedly resulting in a consequential condition of the left, Roche DP again described what is required to determine a consequential condition:
“44. The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder.
45. It is therefore not necessary for Mr Moon to establish that he suffered a ‘injury’ to his left shoulder within the meaning of that term in s 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury...
46. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely has the loss ‘resulted from’ the relevant work injury.”
For the following reasons, I am satisfied that the applicant did suffer a consequential condition to her left shoulder as a result of her right shoulder injury.
The applicant’s statement evidence concerning her left shoulder is brief but clear. In her statement, she says:
“22. I continued to perform light duties at South West Care, including transport and respite care services for an average of approximately seven hours per week.
23.    My symptoms began to increase in severity, so I was referred to Prof George Murrell, orthopaedic surgeon, in July 2021. He organised a further scan and diagnosed me with frozen shoulder and recommended an arthroscopic surgery.
24.    I was hesitant to undergo the surgery and asked Dr Shahnaz to refer me to another specialist for a second opinion.
25.    I was referred to Prof John Ireland whom I saw in August 2021 and who recommended steroid injections. I underwent one of these without any benefit or alleviation of my symptoms.
26.    During this time, I began to experience severe pain and restricted movement in my left shoulder, as a result of over compensation for my right shoulder.”
The applicant relies on the opinions of treating surgeon Prof Murrell together with Independent Medical Examiner (IME) Dr Poplawski.
The respondent alleges the applicant has not made out her case and discharged the onus of proof in establishing her left shoulder condition has been brought about due to overcompensation after her right shoulder injury.
For the respondent, Ms Balendra noted there was no detailed explanation on the part of the applicant as to the tasks which she carried out, which she says gave rise to the of alleged overcompensation. She also noted the history taken by IME, Dr Poplawski was limited. For his part, Mr Trainor for the applicant submitted the combination of the applicant’s statement, together with the histories taken by IME, Dr Poplawski and the views of treating surgeon, Prof Murrell was sufficient to establish the presence of a consequential condition.
Dr Poplawski’s history concerning the alleged consequential condition is as follows:
“During this period of time, she began to use her left arm to a greater extent than normal in order to protect her right shoulder symptoms and, over a period of time, developed compensatory overload on this side with the development of discomfort/pain in the left shoulder also. Her symptoms have progressively increased in severity since”
In support of the applicant’s position, Prof Murrell provided a report dated 17 October 2022, in which he noted that following the applicant’s request for surgery to her right shoulder initially being declined, her problems had worsened, and she had developed issues in her left shoulder as well. Prof Murrell also said:
“I next reviewed her on 15 June 2022. She reported that so far, the [right shoulder] surgery had not been approved and in the meantime, she had been using her left shoulder more and more and had developed severe pain and a restricted range of motion in that shoulder.
Examination on that date confirmed a very painful left shoulder with a restricted range of motion. Ultrasound showed the rotator cuff to be intact but the shoulder was stiff.
Assessment
Bilateral frozen shoulder, left more recent and the left more severe.”
The respondent relied on the report of IME, Dr Powell. Dr Powell noted the applicant’s duties were not heavy, and therefore would not have contributed to her developing a frozen left shoulder after her right shoulder injury.
In his report dated 12 April 2022, Dr Powell noted:
“Ms Michaels was advised by Prof Murrell to be careful not to use her left arm too much but she finds that she needs to do so to do some cleaning about the house and to do things for her 10-year-old son. Over the past few months (around February 2022), she started to become aware of pain about the left shoulder and had difficulty moving it”.
Dr Powell said in relation to causation:
“The imaging changes about her shoulder is involving multiple structures of principally degenerative nature with structural failure that is more advanced than would be expected at her age and with her level of activity.
(Her cleaning job is not particularly physically heavy in nature and would not be expected to cause the degree of structural failure that she exhibits on her scans. Patients who have started to develop rotator cuff disease may often develop symptoms when undertaking activities with their shoulders once the disease process has commenced and reduces the mechanical effectiveness of the tissues to handle loads of day-to-day activity.)
I note that Ms Michaels had an embolic stroke some 10 years ago, which was found to be associated with carotid artery dissection (which would have been in her early 30s).
This raises the possibility that she has some form of fundamental connective tissue disorder (not yet identified) which could well explain her fairly advanced rotator cuff disease. It may also explain muscular injury in undertaking what would be considered a fairly normal level of activity.”
As Mr Trainor noted, Dr Powell’s opinion stands alone. There is no treating general practitioner, surgical or specialist opinion which establishes the presence of any connective tissue disorder in the applicant. Nor is it supported by any objective radiological finding. I accept Mr Trainor’s submission that Dr Powell’s opinion in this regard is nothing more than pure speculation.
Likewise, Dr Powell’s view that the applicant’s duties were light in nature stands in contrast to her own statement evidence, which is not contradicted by any lay evidence put forward by the respondent. To the extent the nature and conditions of the applicant’s duties are the subject of analysis by Dr Powell, the point is now moot, given the respondent now admits the frank injury to the right shoulder.
Moreover, there is no suggestion the applicant is anything other than a witness of truth nor is it suggested that she has attempted to embellish her symptoms. I find the applicant to be a witness of truth and have no difficulty in accepting her version of events relating to not only the accident at issue but also the nature and extent of her work-related duties.
In my view, the applicant has established a consequential condition to her left shoulder. Her statement evidence reveals that she has overused her left shoulder, as do the histories provided by her to the various doctors including the respondent’s own IME. Additionally, Dr Powell’s theories in relation to the genesis of the applicant’s shoulder symptoms do not accord with the factual matrix of this matter. There was no issue with the applicant’s right shoulder until the injury at issue. If it was the case that the applicant had suffered connective tissue disorder as a result of the preinjury stroke suffered 10 years before the injurious event, one would expect her to have suffered some symptoms before the injury. There is no suggestion she did.
Dr Powell also referred to the applicant suffering from a longstanding form of degenerative disorder in her shoulders. However, no other practitioner, treating or medicolegal, identifies such signs of degenerative condition, nor is it demonstrated in any of the radiological investigations undertaken.
The applicant underwent an X-ray and ultrasound following the injury at issue on 28 July 2021. She then underwent a diagnostic ultrasound of the right shoulder on 9 April 2022 and an MRI of her left shoulder on 13 March 2022. In none of those scans is there any mention of pre-existing osteoarthritic or degenerative changes of a longstanding nature. Simply speaking, Dr Powell’s hypothesis as to the cause of the applicant’s problems is not sustained by the objective radiological evidence. I reject it.
Notwithstanding the shortcomings in Dr Powell’s reasoning, it is the applicant’s onus of proof to discharge. On balance, I am satisfied having regard to the medical histories provided by the applicant to the various practitioners in this matter and also to her statement of evidence that the applicant suffered a consequential condition to her left shoulder as a result of the accepted injury to her right shoulder.
Although the relevant evidence on this issue is brief, it is overwhelming and, in my view, compelling. Accordingly, and given the respondent’s quite appropriate concession that the proposed left shoulder surgery is reasonably necessary in the event a finding on liability was made in the applicant’s favour, the respondent will be ordered to pay the costs of and incidental to the proposed left shoulder surgery.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on Page 1 of the Certificate of Determination.

[2023] NSWPIC 327

7 July 2023