Milovanovic v The Ubeeco Group Pty Ltd
[2021] NSWPIC 134
•21 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Milovanovic v The Ubeeco Group Pty Ltd [2021] NSWPIC 134 |
| APPLICANT: | Vladan Milovanovic |
| RESPONDENT: | The Ubeeco Group Pty Ltd |
| MEMBER: | Ms Rachel Homan |
| DATE OF DECISION: | 21 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for lump sum compensation under section 66 in respect of accepted injury to right shoulder, disputed cervical spine injury and disputed consequential left shoulder condition; delay in notifying cervical spine injury; credibility of applicant’s evidence having regard to failure to disclose previous right shoulder symptoms; whether applicant’s evidence as to nature and conditions of employment accurate; defects in medicolegal evidence; Held- Commission satisfied having regard to evidence as a whole that cervical injury and consequential left shoulder condition sustained; matter remitted to President for referral to a Medical Assessor to assess degree of permanent impairment. |
| DIRECTIONS MADE: | 1. The Application to Resolve a Dispute is amended as follows: (a) to discontinue the claim for weekly compensation, and (b) to describe the injury as an injury to the right shoulder and cervical spine as a result of the nature and conditions of employment and a consequential condition affecting the left shoulder. |
| DETERMINATIONS MADE | 1. The applicant sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent pursuant to s 4(b)(ii) of the Workers Compensation Act 1987. 2. The applicant sustained a consequential condition affecting his left shoulder as a result of the injury to his right shoulder. |
| ORDERS MADE | 1. The matter is remitted to the President to be referred to a Medical Assessor for assessment as follows: Date of injury: 22 November 2018 (deemed) Body parts: Right Upper Extremity (shoulder) Method: Whole Person Impairment. 2. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments; the Reply and all attachments other than the report of Dr Lloyd Hughes dated 31 December 2020 from the heading “Opinion” on page 3 of the report onwards; and the documents attached to the Application to Admit Late Documents lodged by the respondent on 3 May 2021. |
STATEMENT OF REASONS
BACKGROUND
Mr Vladan Milovanovic (the applicant) was employed as a labourer by The Ubeeco Group Pty Ltd (the respondent). The applicant claims that as a result of the nature and conditions of his employment with the respondent from 5 September 2018 to 22 November 2018, he sustained an injury to his right shoulder and cervical spine. The applicant further alleges that he sustained a consequential condition affecting his left shoulder as a result of the injury to his right shoulder.
The injury to the applicant’s right shoulder is not in dispute and the parties informed me that the applicant remained in receipt of payments of weekly compensation in respect of the right shoulder injury.
On 5 November 2020, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for 15% whole person impairment (WPI) of his right upper extremity (shoulder), left upper extremity (shoulder) and cervical spine in accordance with an assessment by orthopaedic surgeon, Dr Drew Dixon.
Liability for the left shoulder condition was disputed in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 9 November 2020. In a further dispute notice issued on 21 January 2021, the respondent disputed liability for the cervical spine injury and the left shoulder condition. Liability to pay lump sum compensation was disputed in a notice dated 16 February 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 12 February 2021. The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.
The applicant seeks lump sum compensation in accordance with the assessment of Dr Dixon.
PROCEDURE BEFORE THE COMMISSION
The parties appeared for conciliation conference and arbitration hearing on 10 May 2021 by telephone. The applicant was represented by Mr John Dodd of counsel, instructed by Mr Anthony Macri. The respondent was represented by Mr Lachlan Robison of counsel, instructed by Ms Jenny Nichols. A representative from the insurer was also present.
During the conciliation conference, the applicant withdrew a claim for ongoing weekly compensation which had been included in the ARD. The ARD was also amended to clarify that the applicant claimed an injury to the right shoulder and cervical spine as a result of the nature and conditions of his employment with the respondent and a consequential condition affecting the left shoulder.
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.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent;
(b) whether the applicant sustained a consequential condition affecting his left shoulder as a result of the injury to his right shoulder, and
(c) the degree of permanent impairment resulting from the injury.
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 other than the report of Dr Lloyd Hughes dated 31 December 2020 from the heading “Opinion” on p 3 of that report onwards[1], and
(c) documents attached to an Application to Admit Late Documents lodged by the respondent on 3 May 2021.
[1] Excluded pursuant to cl 44 of the Workers Compensation Regulation 2016.
Neither party applied to adduce oral evidence or cross-examine any witness.
Applicant’s evidence
The applicant’s evidence is set out in a written statement made by him on 22 September 2020.
The applicant disclosed prior injuries to his right ankle and right cheekbone in 1992. The applicant also disclosed prior work injuries to his lumbar spine in November 2003 and November 2010.
The applicant commenced employment with the respondent on 5 September 2018 as a labourer working approximately 38 hours per week. The applicant described his duties as follows:
“I was required to undertake physical work constructing timber pallets. This involved me working at various workstations depending on the timber pallets being constructed. The role required me to engage in repetitive manual handling of lengths of timber, either pine or hardwood timber. The timber was moved from one area to another and fed into machinery to construct timber pallets. I used various nail guns which weighed somewhere between 4kg to 6kg. I also frequently had to use a handheld hammer to hit nails that stuck out of the timber pallets. In addition to using a nail gun, I was also required to feed timber lengths into the machinery and to feed timber lengths into the grooving machine. I was also required to construct small timber pallets by hand using a nail gun. Once I constructed the timber pallets, I would then need to stack them on top of each other.
As a result of that employment, I was required to engage in frequent pushing, pulling, lifting, grabbing and twisting.”
The applicant said he began to experience pain in his right shoulder, neck, right arm and hand in November 2018. On 26 November 2018, the applicant consulted his general practitioner, Dr Danish Khan, who recommended that the applicant take Panadol Osteo and use Voltaren gel. The applicant was referred to physiotherapy and for an MRI of the right shoulder.
The applicant said he had been treated by Dr Khan, a neurologist, Dr Hassan, a neurosurgeon, Dr Renata Bazina, a sports medicine physician and an orthopaedic surgeon, Dr Greg Burrow. The applicant had also been undertaking physiotherapy at PhysioFit.
The applicant also noted that he had been sent to see another neurosurgeon, Dr Nadanachandran and sports medicine physician, Dr Seamus Dalton.
Under the care of Dr Burrow, the applicant underwent two cortisone injections in his right shoulder but they provided him with no relief. The applicant said he had also described pain in his left shoulder to Dr Burrow due to overusing that shoulder and favouring the right shoulder.
The applicant said he continued to experience pain in his right shoulder, neck, right elbow, right wrist and left shoulder. The applicant felt constantly tired and lethargic and was stressed and anxious.
Mr Giannakos
The respondent relies on a written statement prepared on 15 April 2021 by Mr Angelo Giannakos, an employee of the respondent.
Mr Giannakos stated that the applicant was engaged as a casual employee and had worked an average 38 hours per week. Mr Giannakos described the applicant’s work duties as follows:
“Mr Milovanovic worked in a production department where he was required to manufacture timber products such as pallets, boxes, crates.
The work required him to use hand tools such as hammers and nail guns.
The work also required to work using various machinery where he would be required to load timber into it.
Mr Milovanovic would be required to work in various sections depending on workload and customer order needs. Work was constantly changing. Some jobs might take a few hours to complete where others a few days (depending on volume).
Mr Milovanovic would often be required to use a nail gun. This would vary in weight depending on the nature of work. A typical nail gun used weighs 2.8 kg…
Mr Milovanovic was not required to move timber long distances. Timber required for each job would be set up by forklift operator at each station.
Mr Milovanovic was only required to pick up one piece of timber at the time for the purpose of assembling timber products.
When required to feed timber into machine… these pieces of timber would weigh no more than 1 – 2 kg. At all times when manufacturing pallets, all employees would work in teams of two.
Standard pallets can weigh between 14 to 22 kg. Heavy duty hardwood pallets can weigh up to 38 kg. These are manufactured on a pallet machine and automatically stacked.”
Mr Giannakos stated that no injury or incident was reported by the applicant on 22 November 2018. The first notification of an injury was on 26 November 2018 when the applicant presented a WorkCover certificate. That certificate did not include any report of neck pain. There was no report of neck pain until a certificate of capacity dated 29 July 2019.
Evidence from the applicant’s treating practitioners
On 26 November 2018, the applicant’s general practitioner, Dr Danish Khan recorded a clinical note as follows:
“work at Ubeeco packaging solution
at Erskin Park
96709800
work as a labourer
History:
Musculo-Skeletal: 6/10 Joint pain, Joint stiffness, No deformity. No joint swelling, Restricted movement.
Affected joints: R. Shoulder and wrist
work cover Injury to lifting and moving weight at work when on 22/11/18 experienced right shoulder pain and pins and needle right arm radiating to right arm and fingers
Examination:
Musculo-Skeletal:
Not red, not swollen, not hot, tender, restricted ROM.
Reason for contact:
Right Shoulder pain
Right Neuropathic pain arm and hand / Radiculopathy”The applicant was seen by a physiotherapist at PhysioFit, Mr Brendon Ng, on 27 November 2018, who noted:
“Last thursday was constantly lifting and carrying, felt pain in the front of the shoulder with pins and needles down in the hand. Reports the pain is getting worse”.
A diagram of symptoms on the same date showed shading over the right shoulder area with crosshatches down the right arm into the right hand.
On 3 December 2018, Dr Khan recorded:
“History:
Musculo-Skeletal: Joint pain,
6 to 7/ 10 right neck and shoulder pain radiating to right upper limb to hand
neurologist f/u”.On 4 December 2018, the applicant underwent an MRI of the right shoulder at the request of Dr Khan, which was reported to show:
“Subacromial-subdeltoid bursitis. Supraspinatus tendonosis with a partial thickness articular surface tear. Subscapularis tendonosis.”
On 9 January 2019, neurologist, Dr Bassel Hassan, reported to Dr Khan that he had examined the applicant and taken a history as follows:
“The symptoms started on November 22, 2018 whilst Vladan was at work. He describes that the symptoms have been persistent since that time. He experiences pain at the both the anterior and posterior aspects of the deltoid region. There is pain at the volar aspect of the forearm and paraesthesia in the entirety of the right hand including D1-D5. He described neck stiffness. He describes that the right shoulder region pain increases with shoulder abduction. He is seeing a physiotherapist who rightly pointed out to him that right hand paraesthesia should not be a feature of shoulder tendinopathy.”
On 10 January 2019, physiotherapist Ms April Hoad noted:
“Patient reports no change in pain but reports a lot of stiffness and some pain in his neck as well now. Patient reports that he saw his neurologist today who advised him to get a neck MRI done. Currently questioning if the patient's pain is coming from the neck and radiating down his right arm/chest area. Patient reports p+n's/numbness in the fingertips of his right hand still.”
On 18 January 2019, the applicant underwent an MRI of the cervical spine at the request of Dr Hassan. The MRI was reported to show a shallow disc osteophytes complex with minor left foraminal narrowing at C3/4 and mild degenerative oedema with opposing endplates at C4/5. There was reported to be no right-sided nerve root impingement to account for neurological symptoms, no spinal canal stenosis and no myelopathy.
On 27 February 2019, neurologist Dr Hassan reviewed the applicant and gave the opinion:
“At least some of his pain relates to the abnormalities noted in the right shoulder MRI and I will leave further management of this non-neurological issue in your capable hands. The reported axial neck pain is muscular given the normal C-spine MRI.”
On 15 May 2019, orthopaedic surgeon, Dr Greggory Burrow reported to Dr Khan that he had seen the applicant for multisite shoulder, neck and arm pain. Dr Burrow took a history as follows:
“Around 22 November last year he had several weeks of increasing discomfort in the back of the neck, both trapezii, down the right arm, in the anterior aspect of the right chest also associated with intermittent pins and needles of the whole right hand. There was no specific trauma It just got worse day by day. He has been unable to work since, and he had extensive physiotherapy, used Voltaren Gel, heat packs and is now taking 6 Panadeine Forte a day.”
Following an examination, Dr Burrow gave the opinion:
“Vlad appears to have neck pain without radiculopathy, although he describes radicular type altered sensation of the hand on occasion but it is all the fingers not limited to 1 dermatome. He also seems to have a separate shoulder problem, MR scan has reported bursitis and cuff tendinosis, I have recommended, we proceed to right shoulder ultrasound guided Injection Into subacromial space and AC Joint.”
On 27 May 2019, neurosurgeon, Dr Renata Bazina, reported to Dr Khan that she had reviewed the applicant:
“He presents with a history of right shoulder injury in November 2018 and referred pain into the neck and intermittent symptoms of paraesthesia in the right upper limb. On examination he had pain with extension and flexion, slightly worse with the latter. He has early disc osteophyte complexes at C3/4 and C4/5. There was anterior disc changes but no significant disc herniation. I suspect the pain is multifactorial from referred pain from his right adhesive capsulitis and from his cervical spondylosis and myofascial pain from the trapezius muscle trigger points.”
On 30 May 2019, the applicant underwent a regional bone scan with SPECT/CT of the cervical spine at the request of Dr Bazina. The clinical indication for the scan was described as:
“Pain in the neck and both shoulders. Injury in November 2018.”
The scan was reported to show:
“Discovertebral degenerative arthritis at the C4-5 level of the cervical spine, with arthropathy in the left facet joint. Mild degenerative arthritis in the right sternoclavicular joint.”
On 12 June 2019, Dr Burrow reported that the applicant had been diligent with his exercises, physiotherapy and home exercises, had tried Naprosyn and had a bone scan after seeing his spinal surgeon. The applicant had continued with right shoulder pain particularly on flexion and use above shoulder height. The applicant also had whole arm pain and intermittent numbness.
A report from I-MED Radiology, dated 8 July 2019 indicates that the applicant had been referred for a CT guided left C4/5 transforaminal injection. After the risks of the procedure were discussed, the applicant declined to continue with the procedure.
Clinical records from the applicant’s physiotherapist dated 11 July 2019 include diagram showing shading over both the right and left shoulder areas and cervical spine.
On 25 July 2019, Dr Bazina reported to Dr Khan:
“We are at a standstill in terms of cortisone injections, Dr Burrows has recommended one and so have l but the patient has declined them on both occasions due to the risk of rare complications which are a remote possibility. Going forward he has requested a trial of alternative therapies and treatments which don't involve medications such as acupuncture.”
On 12 September 2019, neurosurgeon and spine surgeon, Dr Kathiravel Nadanachandran reported to the insurer that he had taken a history as follows:
“He reports onset of pain at work on 22/11/18 when he was employed as a labourer and general hand in a warehouse making wooden packaging boxes and pallets. He had been at that establishment for about six months and the work involved lifting and moving quite a lot of timber in a repetitive fashion, using a nail gun.
On 22/11/18 he started to experience pain in the right shoulder and the neck as well at work. The neck was feeling stiff and he started to also experience gradually over the next few days headaches radiating to the back of the head and into the front. He was seen by his general practitioner and then referred to various specialists including the shoulder surgeon, neurosurgeon and a neurologist.”
Dr Nadanachandran said the applicant denied any past history of injuries to his neck or shoulder. Dr Nadanachandran reviewed the bone scan done on 30 May 2019 and the MRI of the cervical spine as well as imaging of the right shoulder and nerve conduction studies done by Dr Hassan. Dr Nadanachandran diagnosed:
“Soft tissue injury to cervical spine with pre-existing asymptomatic degeneration at C4/5 level involving the disc and facet joints.”
Dr Nadanachandran did not consider that the shoulder or neck injury could explain the paraesthesia and numbness in the applicant’s hand but said this did not deny the condition in the shoulder and some soft tissue injury to the neck.
On 2 October 2019, Dr Burrow noted that the applicant had seen Dr Bazina who had confirmed the diagnosis of discovertebral disease and recommended a steroid injection. The applicant was reluctant to proceed with the injection. Dr Burrow reported:
“Last time I saw Vlad I confirmed a diagnosis of mixed cuff disease of the right shoulder, recommended steroid local anaesthetic injection, with continuing symptoms he had the injections over the last several weeks, the local anaesthetic made no difference to his pain.
He has ongoing anterolateral shoulder pain worse with movement. Exam today showed marked impingement with severe pain on lifting the shoulder but no evidence of capsulitis. Vlad's pain is greater than what we would normally see with his condition, but there no systemic symptoms, Normally, with persisting symptoms and disability with a positive response to steroid injection I would recommend surgery. Given Vlad atypical response to the injection I do not believe surgery would be particularly helpful in his case.”
On 18 October 2019, Dr Khan recorded a clinical note which referred to left shoulder pain. A WorkCover certificate issued by Dr Khan on the same date recorded that the applicant needed an MRI scan of the left shoulder and physio review.
On 23 October 2019, the applicant’s physiotherapist, Ms Hoad recorded that the applicant reported that his neck was constantly in pain, the left side being a little worse than the right side. The applicant also reported constant right shoulder pain:
“He reports currently his right shoulder pain is at a 7/10 pain and he reports the worst that his right shoulder gets to is a 8/10 pain. Vladan reports that his left shoulder has been starting to experience the same pain that his right shoulder is experiencing but not at the same intensity. Vladan reports he uses his left arm for everything now and he believes this is why the pain has started on this shoulder. He reports currently his left shoulder pain is at a 4/10 pain and he reports the worst that his left shoulder gets to is a 5/10 pain. Vladan is currently working 3 days per week and his hours have just increased to 4 hours per shift.”
On 24 October 2019, physiotherapist, Mrs Zhejun Liu noted:
“Patient reports the pain in his neck and right shoulder is getting worse after cortisone injection. Patient reports he is getting pain from his left shoulder as well. Patient has been struggling with bad pain every day after the injection, the pain has been effected his daily activities such as putting and taking off his clothes. Patient reports he is unable to work due to the pain in his neck and shoulder, also he is getting some very bad headache so he must take some days off from work.”
A clinical note recorded by Dr Khan on 12 November 2019 referred to:
“History:
Musculo-Skeletal: Joint pain, Neck pain.
Affected joints: L. Shoulder, R. Shoulder
7/10 pain this morning unable to go to work today due to work injury pain increased due to increased work hours”A WorkCover certificate issued by Dr Khan on 15 November 2019, referred to:
“left shoulder pain as due to overuse injury, physio review for headaches and left shoulder pain, MRI scan left shoulder requested”
On 20 November 2019, Dr Khan responded to a series of questions from the insurer with regard to video surveillance of the applicant performing an instrument in front of a gathering at the Serbian Club. Dr Khan gave his opinion that the applicant was not injuring or straining his WorkCover injury when participating and using his musical instrument. With regard to the causal relationship between the pathology and employment, Dr Khan stated:
“He developed Right Shoulder pain and Right Cervical neuropathic pain after lifting heavy objects at work on 22/11/18. As pain commenced after lifting heavy weight multiple times he developed his current symptoms which are work related. Also to understand that Vladan was performing his work duties for a long time in which he was physically moving and lifting. Using his muscles and spine by performing heavy work duties including lifting heavy weight and nail gun use. It is an accumulative injury which got worse after lifting weight on 22/11/18.”
On 2 December 2019, the applicant underwent an MRI of the left shoulder at the request of Dr Khan which was reported to show:
“Relatively minor tendinotic changes subscapularis and supraspinatus tendons. Minimal age-appropriate labral changes as described. No joint effusion or bursal effusion.”
On 15 May 2020 the applicant was reviewed by specialist in rehabilitation medicine, Dr Seamus Dalton, in relation to:
“a complex history of neck and right shoulder pain although overtime this has involved into left shoulder symptoms as well.”
Dr Dalton gave the opinion:
“He has undergone extensive investigation and as I have explained to Vladan all of the findings are consistent with his age. In the case of his left shoulder he does not have any significant pathology, which is consistent with my clinical evaluation. In the right shoulder he has a partial thickness tear but it is very difficult to know if that actually is causing his pain as a lot of his problems are more in keeping with mechanical shoulder dysfunction. Having not seen him early on it is difficult to know the sequence of events but I suspect that he sustained a soft tissue injury to his shoulder and then developed maladaptive postures and he now presents with classical scapular dumping which accounts for the secondary impingement in abduction, the cervicobrachial symptoms down his arm and also the increased load on his right trapezius and cervical accessory muscles. There are no signs of radiculopathy and a lot of these problems are attributable to his maladaptive posture and particularly the muscle co-contraction which has evolved over time.”
With regard to treatment, Dr Dalton reported:
“He asked me about his left shoulder but I have explained that there is no underlying pathology and he does not require specific treatment directed to his left shoulder as that will benefit from the exercises and postural correction that he needs to do for his neck and right shoulder. If he can correct his posture, work on restoring normal scapular position and control, then I am quite sure that his neck and neurological symptoms will improve. He needs to be much more posturally aware and should avoid any protective postures that he tends to adopt in response to his pain.”
On 22 July 2020, Dr Burrow reviewed the applicant and noted:
“Since last seen, Vladan has had symptoms in the contralateral left shoulder, anterolateral, worse with mid arc motion, that he says has been there for several years and has come on as a result of ‘overuse’. This was not a complaint when seen in October 2019 but I note Vlad had an MR scan on 2 December 2019 which reported ‘minor cuff tendinosis’. There has been no interventional treatment apparently.”
Following examination, Dr Burrow concluded:
“Vlad's neck and shoulder conditions have not markedly changed since last October but he now complains of left shoulder symptoms as well, MR scan confirming a small partial tear of the supraspinatus. He experiences marked pain and quite dramatic examination but given the previous right shoulder subacromial space injection did not improve his symptoms, I do not think surgery would be particularly helpful for him, particularly as there is mixed disease and it may well be that his arm pain is really radicular-type pain referred from his neck.”
In a further letter also dated 22 July 2020, Dr Burrow clarified,
“With regard to the left shoulder I said Vladan had had pain for several years, he confirms with me that he had left shoulder pain after the work incident which was aggravated by increasing use when resting the right arm over several months, resulting in him having an MR scan last December.”
On 24 August 2020, Dr Bazina reviewed the applicant and noted:
“He explained he had no issues with his neck until he injured his right shoulder. I explained that I felt that the pain was a musculoskeletal issue associated with biomechanics, this may well be related to the repetitive injury as a result of his work and referred pain into his trapezius muscles. He has been offered treatment for the neck injury which included interventional pain management and this unfortunately has been declined on numerous occasions. I discussed the role of medial branch blocks, those would be done in theatre, he is ambivalent about moving forward with this form of treatment as a public patient which can help musculoskeletal pain. I have nothing further to add to his management and would be quite content with him following up with Dr Burrows his primary treating specialist.”
Dr Dixon
The applicant relies on a medicolegal report prepared by orthopaedic surgeon, Dr Drew Dixon, dated 23 October 2020.
Dr Dixon took a history of the applicant’s duties for the respondent that was in similar terms to the applicant’s written statement. As a result of the work duties which involved frequent pushing, pulling, lifting, grabbing and twisting, the applicant reported that he developed pain in his right shoulder and neck pain with radiation into his right hand where he experienced intermittent paraesthesia in the little and ring fingers. While favouring the right shoulder, the applicant felt pain and stiffness in his left shoulder.
Dr Dixon noted the treatment history, performed an examination and reviewed the radiological investigations of the right shoulder, cervical spine and left shoulder before giving a diagnosis as follows:
“1. Post-traumatic stiffness of the right shoulder with subacromial bursitis, impingement on abduction with partial supraspinatus insertional tear and subscapularis tendinosis with mild impingement on abduction;
2. post-traumatic stiffness of the left shoulder with mild subscapularis and supraspinatus tendinosis without subacromial bursitis;
3. aggravation of previously asymptomatic C3/4 and C/5 spondylosis which is ongoing with intermittent radicular complaint with occasional occipital headaches and intermittent paraesthesia in the little and ring fingers.”
With respect to causation, Dr Dixon stated:
“The above conditions are causally related to the nature and conditions of his employer as a warehouse labourer.”
Dr Dixon assessed the applicant as having 6% WPI at the right shoulder, 4% WPI at the left shoulder and 5% WPI at the cervical spine giving a total from the combined values chart of 15% WPI.
Dr Powell
The respondent relies on medicolegal reports prepared by orthopaedic surgeon, Dr Richard Powell, dated 20 February 2020, 16 March 2020, 17 April 2020 and 18 May 2020.
In his first report, Dr Powell took a history of the applicant’s work duties as involving the use of timber to manufacture products such as pallets and boxes. Dr Powell noted that there was a significant physical component to the work which required the applicant to transfer timber to machines and load them as required to produce the products. The applicant became aware of a gradual onset of right shoulder symptoms over the course of the day on 22 November 2018. In addition, the applicant reported a gradual onset of neck pain and stiffness. More recently the applicant had developed symptoms in the left shoulder without specific precipitating incidents or injuries. An MRI of the left shoulder had demonstrated some rotator cuff tendinopathy. The applicant attributed his symptoms to overuse.
Dr Powell summarised the treating evidence and current symptoms. The applicant denied any prior injuries involving the neck or shoulders. Following an examination and review of the investigation reports, Dr Powell diagnosed bilateral rotator cuff tendinopathy and changes of cervical spondylosis. Dr Powell said the pathology identified in the cervical spine and bilateral shoulders was likely to be pre-existing and constitutional in nature and was consistent with the applicant’s age.
With regard to the applicant’s left shoulder symptoms, Dr Powell stated:
“There is no history of injury to the left shoulder. Mr Milovanovic’s left shoulder symptoms developed in an insidious fashion whilst he was on light duties. Investigations revealed evidence of some underlying degenerative changes in the left shoulder which would be consistent with his age. I would consider the pathology in the left shoulder represents a disease process. There is no history of any acute injury. I do not believe there is sufficient evidence to conclude that Mr Milovanovic’s employment represents the main contributing factor in either the development or aggravation of the current left shoulder condition.”
In the supplementary report of 16 March 2020, Dr Powell gave the opinion that the aggravation of the applicant’s right shoulder injury continued. Dr Powell said that playing the accordion would not normally give rise to significant injury:
“It would seem unusual for a person complaining of cervical spine and bilateral shoulder symptoms to perform on a regular basis as a musician/accordion player. Although I have no personal experience with the accordion, the playing of this instrument would appear to place some load on the cervical spine and obviously involves the repetitive use of the upper limbs albeit below shoulder height. It is perhaps unlikely to cause any significant injury although it would certainly aggravate a previous injury or underlying disease process. It is not clear from the information provided if this was a one-off performance over three nights or is part of a regular program.”
In the report of 17 April 2020, Dr Powell gave the opinion that, although the load placed on the applicant’s right shoulder in the course of his employment was less than what he had previously understood, the job did involve repetitive use of the upper limbs with frequent lifting. Dr Powell said it was possible that those duties could have resulted in the development of soft tissue injury involving the right shoulder. Dr Powell reaffirmed his previous opinion with regard to the effect of playing the piano accordion.
In his reports of 18 May 2020, Dr Powell gave an opinion with regard to the applicant’s capacity for work.
Dr Hughes
In response to the claim for lump sum compensation, the insurer qualified orthopaedic surgeon, Dr Lloyd Hughes to prepare a medicolegal report. Due to the requirements of cl 44 of the Workers Compensation Regulation 2016, and having regard to the reports also in evidence from Dr Powell, the opinions given in the report of Dr Hughes were not relied on in these proceedings.
Dr Hughes took a history of the injury as follows:
“Mr Milovanovic told me that he experienced gradual onset of pain in his right shoulder at work over a period of a few days. There was no specific incident or injury. He consulted his general practitioner, Dr Khan, who arranged for him to have physiotherapy treatment. He said he was off work for several months, and at one stage, he was referred to an Orthopaedic Surgeon, Dr Burrow. He later developed tingling and pain in his right arm and pain in his neck. Once again, there was no specific incident or injury at work, and the symptoms came on gradually. He returned to work performing light duties after he had been off work for several months. He is now working for four hours per day performing light duties. He has continued to have physiotherapy and exercises for his shoulder.”
Previous Workers Compensation Commission proceedings
Amongst the materials attached to the Reply is a Certificate of Determination issued by Arbitrator Josephine Snell (as she was then known) dated 17 June 2013, in relation to a lumbar spine injury sustained on 4 November 2010.
The Certificate of Determination noted that the applicant had been employed as a full-time warehouse assistant since 15 December 2008 with the respondent in those proceedings. On 4 November 2010, the applicant was lifting a wooden crate with a co-worker when he felt a sharp stabbing pain in his lower back.
The injury to the lower back was not in dispute. The arbitrator was, however, required to determine whether the applicant had sustained a consequential right shoulder condition as a result of the lumbar spine injury.
The Certificate of Determination noted that the clinical records of Dr Khan recorded a complaint of pain in the right shoulder on 14 April 2011. The applicant had made a statement that his right shoulder started hurting in February 2011, particularly if raising his arm to shoulder height. An x-ray of the right shoulder dated 2 May 2011 was noted to reveal mild thickening of the subacromial bursa with evidence of bursal impingement on shoulder abduction to 60 degrees.
After reviewing the evidence and submissions, the arbitrator was not satisfied that the applicant had discharged his onus of proof to substantiate that the right shoulder condition was causally related to the lumbar spine injury.
Applicant’s submissions
Mr Dodd submitted that there was no indication in the evidence that the applicant was suffering with problems at his right shoulder immediately prior to his employment with the respondent despite previous issues recorded in 2012 and 2013.
Mr Dodd noted that the statement of Mr Giannakos seemed to suggest that the applicant’s work with the respondent was not all that heavy. Although the applicant was not required to lift pallets by himself, he did have to lift pallets with another worker. The nature and conditions of the applicant’s employment with the respondent had been accepted as sufficiently heavy as to cause an injury to the right shoulder.
Mr Dodd referred to the applicant’s statement regarding the nature and conditions of his employment. The applicant alleged that the repetitive nature of his work, use of a hand-held nail gun and frequent pulling, pushing, lifting and twisting involved in the construction of timber pallets had caused injury to his right shoulder and neck.
Mr Dodd submitted that there was contemporaneous evidence of the symptoms in the applicant’s cervical spine in the clinical records of PhysioFit. The first reference to the shoulder injury in the physiotherapist notes also included a reference to tingling down the applicant’s right arm and into his hand. Mr Dodd submitted that this was consistent with symptoms originating from the applicant’s cervical spine. By January 2019, the physiotherapist records made express reference to stiffness and some pain in the applicant’s neck. The applicant had reported that he had seen a neurologist and had been advised to obtain an MRI of the cervical spine.
Mr Dodd referred to the reports of Dr Bazina who obtained a history of a right shoulder injury and referred pain into the neck. Dr Bazina referred the applicant for a bone scan which showed pathology explaining the applicant’s pain. Dr Bazina had tried to convince the applicant to have an injection at the cervical spine although the applicant was reluctant to do so.
Mr Dodd referred to the report of neurosurgeon, Dr Nadanachandran, and noted that he also took a history of neck symptoms and diagnosed a neck injury similar to the opinion of Dr Bazina.
Mr Dodd submitted that Dr Dixon had adopted the findings of the applicant’s treating specialists in giving his own opinion that there was an injury to the applicant’s cervical spine. Mr Dodd submitted that the contemporaneous clinical records, reports of the applicant’s specialists and the opinion of Dr Dixon all supported the view that there was an injury to the cervical spine due to the nature and conditions of the applicant’s employment with the respondent. Dr Powell provided the only contrary opinion.
With regard to the left shoulder consequential condition, Mr Dodd referred again to the applicant’s evidence and the clinical records of PhysioFit. Mr Dodd noted that the applicant reported that he had started to experience the same pain at his left shoulder that he had experienced at his right shoulder but not at the same intensity. The applicant reported using his left arm for everything and believed that this was why pain had started on the left shoulder.
Mr Dodd submitted that this constituted contemporaneous evidence of the onset of left shoulder symptoms in the context of using the left arm for everything. Mr Dodd noted that the applicant had continued on light duties for the respondent for a considerable period. The contemporaneous treating evidence, unaided by the involvement of the applicant’s lawyers was completely consistent with the claim of a consequential left shoulder condition.
Mr Dodd noted that although an MRI of the applicant’s left shoulder showed degenerative changes, the evidence indicated that symptoms first appeared following the problems with the applicant’s right arm.
The applicant returned to see Dr Burrow who also reported that the applicant had symptoms in the contralateral left shoulder as a result of overuse.
Mr Dodd submitted that Dr Burrow had provided an opinion consistent with the physiotherapist notes and Dr Dixon’s subsequent expert opinion. Mr Dodd submitted that the evidence supported the proposition of a consequential left shoulder condition.
Mr Dodd noted that the applicant had been referred to a rehabilitation specialist, Dr Dalton. Dr Dalton reported that the applicant described diffuse pain about the right shoulder with similar symptoms on the left side. Mr Dodd submitted that Dr Dalton’s report obliquely supported the claimed consequential condition. Dr Dalton suggested that the applicant had adopted protective postures in response to the pain in his right shoulder which if corrected would improve the symptoms in his left shoulder and neck.
Mr Dodd submitted that the reports of Dr Powell did not assist the respondent’s case. Dr Powell took a history of there being no injury to the left shoulder but rather the development of symptoms in an insidious fashion whilst on light duties. Mr Dodd submitted that this was correct, however, Dr Powell had been led astray and was not asked to answer the correct question. The applicant did not claim to have suffered a left shoulder injury but a consequential condition at the left shoulder.
Mr Dodd submitted that the applicant’s evidence of a consequential left shoulder condition was uncontradicted.
Mr Dodd noted that the respondent’s evidence referred to surveillance of the applicant playing the piano accordion. Mr Dodd noted that Dr Powell was made aware of this activity but did not consider it relevant to the onset of the applicant’s condition.
Respondent’s submissions
Mr Robison submitted that it was appropriate to consider the lay evidence prior to examining the expert opinions.
Mr Robison referred me to the applicant’s statement and noted that the applicant had disclosed prior injuries to his back and right ankle. The applicant did not disclose any prior symptoms in the disputed body parts. Mr Robison submitted that the applicant had, however, claimed to have suffered problems with his right shoulder in proceedings before the Workers Compensation Commission in 2013. The applicant’s failure to disclose the prior injury in his statement evidence or in the histories provided to the expert doctors cast doubt over the reliability of the applicant’s evidence and the allegation of a consequential condition in the left shoulder.
Mr Robison submitted that in order for an expert to provide a compelling opinion on causation a full history ought to have been disclosed. The previous injury to the right shoulder was not disclosed to Dr Dixon prior to his opinion being given.
Mr Robison noted the applicant’s evidence with regard to his work duties. Mr Robison submitted that it was difficult to see how the applicant’s work picking up objects weighing only a few kilograms with his upper limbs had caused an injury to his neck. Mr Robison submitted that the mere fact that symptoms in the cervical spine occurred contemporaneously to the period of the applicant’s employment was not conclusive evidence of the applicant’s employment being causative of injury.
Mr Robison submitted that although the applicant did refer to his disabilities in his written statement, there was a lack of detail as to how the applicant claimed to have overused his left shoulder.
Mr Robison referred to the witness statement of Mr Giannakos. Mr Giannakos gave evidence that the applicant’s work was constantly changing, suggesting that it was not as repetitive as the applicant’s evidence suggested. Mr Giannakos indicated that the timber and nail guns used by the applicant weighed less than the applicant’s evidence suggested. Although there was not a significant factual dispute between the parties, in respect of the minor differences between the applicant’s evidence and that of Mr Giannakos, Mr Robison submitted that Mr Giannakos’ evidence would be preferred having regard to the credibility issues arising from the applicant’s failure to disclose his prior right shoulder issues.
Mr Robison noted that the history recorded by Dr Dixon suggested the applicant’s duties were heavier than was suggested by Mr Giannakos. The applicant was performing light duties consistent with his medical restrictions at the time his left shoulder symptoms began. In this circumstance, Mr Robison submitted that it was unlikely that the applicant would have overused his left shoulder. Mr Robison submitted that Dr Dixon’s opinion on causation was not helpful and in fact suggested an injury due to the nature and conditions of employment to all body parts, including the left shoulder, in contrast to the applicant’s claim.
Mr Robison submitted that Dr Dixon’s assessment of WPI was problematic in that it referred to dysmetria which had not previously been noted in the context of his examination. The disconnect between Dr Dixon’s WPI assessment and his examination would give rise to doubt about the reliability of Dr Dixon’s report generally.
Mr Robison submitted that the MRI scans of the right shoulder did not reveal significant injury to the shoulder. Mr Robison submitted that this was relevant in considering the consequential left shoulder condition. Similarly, the scans of the cervical spine revealed minimal pathology and excluded impingement of the nerve root. Mr Robison submitted that in this context it was unlikely that the symptoms noted in the applicant’s right arm and hand by PhysioFit were due to pathology in the cervical spine. Dr Burrow also found no evidence of radiculopathy.
Mr Robison noted that the evidence indicated that the applicant was reluctant to proceed with injections to his cervical spine. Mr Robison submitted that it was reasonable to infer that the applicant’s reluctance to proceed with injections was due in part to the lack of severity of his symptoms.
Mr Robison submitted that the applicant’s use of a piano accordion also suggested that the applicant’s right shoulder injury was relatively minor. Given the applicant’s ability to play a relatively heavy instrument and place a strap over his upper body, Mr Robison submitted that the Commission would have doubt that the right shoulder injury was sufficiently severe as to give rise to a consequential left shoulder condition.
Mr Robison referred to the reports of Dr Powell. It was noted that the history of activities at work recorded by Dr Powell did not explain the alleged injury to the applicant’s cervical spine. Although Dr Powell conceded that there was pathology at the cervical spine, the respondent questioned what had caused it to become symptomatic. The evidence of the alleged mechanism of the neck injury was unpersuasive.
Mr Robison acknowledged that the opinion given by Dr Hughes was not relied upon although the history recorded by him was relevant. Dr Hughes recorded the onset of symptoms and noted that the applicant had returned to work on light duties.
Although the applicant had been referred for physiotherapy for both his neck and both shoulders, Mr Robison submitted that the Commission would not draw an opinion on causation from that circumstance. Similarly, the applicant’s own account of his symptoms in response to a questionnaire was not evidence of causation.
Mr Robison submitted that the applicant had not discharged his onus with regard to the cervical spine injury or the consequential left shoulder condition. The Commission would only be satisfied that the respondent had liability for the right shoulder injury. The applicant’s assessment of permanent impairment resulting from that injury alone was below the s 66 threshold and so no referral to a Medical Assessor should be made.
Applicant’s submissions in reply
Mr Dodd submitted that the applicant did not claim to have injured his left shoulder whilst performing light duties. Rather his case was that it became symptomatic due to overuse.
Mr Dodd submitted that the applicant was reluctant to undergo injections to the cervical spine because he had undergone injections to the shoulder without any real relief. This was confirmed by Dr Burrow’s reports. Mr Dodd submitted that it would be wrong to infer that the applicant was reluctant to undergo the injections because his symptoms were not particularly troubling.
Mr Dodd noted the respondent’s submission that the applicant had failed to disclose a previous right shoulder “injury”. There was, however, no previous right shoulder injury. The applicant’s shoulder started hurting in 2011 but in the absence of injury. There was no basis for impugning the applicant’s credibility.
Mr Dodd submitted that Mr Giannakos’ statement was an attempt to exculpate the respondent. No injury or incident was reported because there was no frank injury. Neck pain was first recorded from January 2019 but the delay was explained by the clinical notes. Mr Giannakos made reference to other work but no evidence of it was attached.
Mr Dodd submitted that the respondent’s submissions did not address all the evidence. The submissions had picked out certain documents but failed to give a correct picture. Mr Dodd said the respondent’s submissions should be rejected.
FINDINGS AND REASONS
Relevant law
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer. The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
It has been accepted by the respondent that the applicant sustained an “injury” as a result of the nature and conditions of his employment with the respondent to his right shoulder. What requires determination is whether the applicant has also sustained an injury to his cervical spine as a result of the nature and conditions of his employment with the respondent and whether he has sustained a consequential condition at his left shoulder.
It is not necessary for the applicant to establish that the left shoulder condition is an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[2] observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 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. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[2] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services[3], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[3] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[4], where Kirby P said at [461] (Sheller and Powell JJA agreeing):
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[4] (1994) 10 NSWCCR 796 at [810].
His Honour said at [463]-[464]:
“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 cause 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. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
It is the applicant who bears the onus of establishing, on the balance of probabilities, that the injury to the cervical spine and consequential left shoulder condition alleged have been sustained[5].
[5] See, for example, Nguyen v Cosmopolitan Homes [2008] NSWCA 246.
Cervical injury
The applicant first complained of a work injury due to lifting and moving weights in a consultation with his general practitioner, Dr Khan, on 26 November 2018. Although the clinical records do not indicate specific complaints were made with regard to the cervical spine on that occasion, the applicant is recorded to have reported pins and needles into the right arm radiating to the right arm and fingers. Dr Khan recorded that the applicant’s reason for contact included “right neuropathic pain arm and hand/radiculopathy”.
Similar symptoms of pins and needles down to the right hand and attribution of those symptoms to constant lifting and carrying at work were recorded by the applicant’s physiotherapist on 27 November 2018.
Less than a week later, on 3 December 2018, Dr Khan recorded that the applicant complained of right neck and shoulder pain. Dr Khan considered it appropriate at that stage to refer the applicant to a neurologist.
The applicant was seen by neurologist, Dr Hassan, on 9 January 2019. On that occasion, the applicant is reported to have described neck stiffness and paraesthesia which the applicant said had been persistent since it commenced at work on 22 November 2018. Dr Hassan referred the applicant for an MRI investigation of the cervical spine which was done on 18 January 2019. After reviewing the MRI, Dr Hassan concluded that the applicant was experiencing muscular neck pain.
In the meantime, the applicant continued to report pins and needles and numbness as well as neck pain and stiffness to his physiotherapist.
The applicant also continued to report neck symptoms to Dr Khan, who referred him to orthopaedic surgeon Dr Burrow. Although Dr Burrow’s treatment focused predominantly on the right shoulder symptoms, he took a history of increasing discomfort around November 2018 in the back of the neck and intermittent pins and needles, without specific trauma. Dr Burrow gave the opinion that the applicant had neck pain without radiculopathy notwithstanding the radicular type altered sensation described to the right hand.
The applicant was then referred to another neurosurgeon Dr Bazina. Dr Bazina reviewed the MRI scan and, following examination, formed the opinion that the applicant’s pain was likely to be multifactorial from referred pain from the right shoulder as well as cervical spondylosis and myofascial pain from the trapezius muscle trigger points. Dr Bazina referred the applicant for SPECT/CT investigation of the cervical spine, which revealed degenerative arthritis at C4/5. Following this, Dr Bazina referred the applicant for a CT guided C4/5 transforaminal injection. After the risks of the procedure were discussed with the applicant, he declined to continue with the procedure.
Opinions with regard to the applicant’s cervical spine symptoms were also given by neurosurgeon and spine surgeon Dr Nadanachandran, who took a consistent history of the onset of symptoms. After reviewing the MRI and bone scan as well as nerve conduction studies, Dr Nadanachandran diagnosed a soft tissue injury to the cervical spine with pre-existing asymptomatic degeneration at C4/5 level involving the disc and facet joints.
Although there appears to have been some delay in the applicant notifying the respondent of an injury to his cervical spine, and although the respondent has questioned the credibility of the applicant’s evidence generally, having regard to a failure to disclose previously reported symptoms in his right shoulder, the treating medical evidence thus demonstrates that the applicant reported symptoms, which were relatively quickly investigated and attributed to his cervical spine from around the same time the right shoulder symptoms were reported. The onset of symptoms has consistently been attributed by the applicant in the histories provided to his treating practitioners to his work duties with the respondent. Diagnoses of a condition in the applicant’s neck which would explain, at least some of, the applicant’s symptoms have been made by each of the specialists who has reviewed the applicant in respect his symptoms. There is nothing to which I have been referred in the treating medical evidence to suggest that the applicant complained of neck symptoms prior to the applicant’s employment with the respondent.
The respondent submits that the temporal coincidence of the onset of symptoms and the applicant’s employment with the respondent is insufficient to establish a causal connection with employment. Whilst I accept that proposition as correct, the circumstances in which the symptoms were first reported, and the applicant’s consistently reported view as to cause of his symptoms, are relevant considerations to be weighed in my determination as to whether the applicant has discharged his onus of proof.
The respondent has also submitted that it is difficult to see how the applicant’s work duties could have caused an injury to his cervical spine.
In this regard, I accept that there are some factual differences between the applicant’s evidence and that of Mr Giannakos as to the applicant’s duties, particularly as to the average weight of the nail guns and timber used. Mr Giannakos has indicated that the applicant had the assistance of a co-worker and other machinery in the performance of his tasks. Their evidence is, however, consistent in indicating that the applicant’s duties involved the manufacture of timber pallets, boxes and crates. Some of these were made of heavier hardwoods. In performing his duties, the applicant used hand tools such as hammers and nail guns of varying weights. It is not in dispute that this work involved frequent pushing, pulling, lifting, grabbing and twisting, although the duties varied according to each order.
As noted by the applicant, it is not in dispute that the nature and conditions of the applicant’s employment were causative of an injury to the applicant’s right shoulder.
None of the treating practitioners has suggested that the condition in the applicant’s cervical spine or his symptoms were inconsistent with the mechanism of injury reported to them. It may be inferred from the WorkCover certificates issued by Dr Khan that he considered that a causal relationship with employment was established. Dr Khan later gave the explicit opinion that the applicant’s cervical pain was work-related in his response to the respondent’s insurer dated 20 November 2019. Dr Khan noted that the pain commenced in the context of work and that the applicant had been performing duties which involved physically moving and lifting heavy weights using his muscles and spine.
Dr Bazina, in her most recent report, also gave the opinion that the neck condition “may well be” related to the repetitive injury as a result of the applicant’s work.
I accept that a broadly accurate description of the applicant’s duties has been reported to the applicant’s doctors and the medicolegal experts notwithstanding the differences to which I have referred above. Certainly, the respondent’s clarification of the applicant’s duties did not cause Dr Powell to alter his opinion in relation to the right shoulder injury.
The expert qualified by the applicant, Dr Dixon has provided an opinion that the nature and conditions of the applicant’s employment caused an aggravation of previously asymptomatic C3/4 and C4/5 spondylosis.
Dr Dixon has not provided any greater explanation for his opinion. In particular, he has not explained which particular duties would have impacted upon the cervical spine or explained the particular mechanism by which this would have occurred. Dr Dixon has not specifically addressed whether employment with the respondent was “the main contributing factor” to the aggravation found by him. The reliability of Dr Dixon’s opinion has also been called into question by the respondent having regard to an apparent inconsistency between his examination and WPI assessment.
Were Dr Dixon’s report the only evidence of injury it would fall short of demonstrating injury pursuant to s 4(b)(ii) of the 1987 Act on the balance of probabilities. It is, however, necessary to consider Dr Dixon’s evidence in the context of the evidence as a whole.
The respondent relies on the expert opinion of Dr Powell. Like Dr Dixon, Dr Bazina and Dr Nadanachandran, Dr Powell diagnosed changes of cervical spondylosis. Consistently with Dr Dixon and the treating doctors, Dr Powell considered the pathology in the cervical spine was likely to be pre-existing and constitutional in nature. Dr Powell found the pathology to be consistent with the applicant’s age. Dr Powell noted that the applicant had associated the onset of symptoms with his work duties.
No further opinion with regard to the cause of the applicant’s cervical symptoms is provided by Dr Powell. In particular, Dr Powell has not addressed whether the applicant’s duties may have aggravated the pre-existing constitutional pathology by causing it to become symptomatic. Dr Powell did not engage further with the applicant’s duties, the circumstances in which symptoms were first noted and reported, or the applicant’s perception that his work duties had caused his symptoms. In short, nothing in Dr Powell’s reports causes me to doubt the correctness of Dr Dixon’s opinion.
Viewing the evidence as a whole, I find that the applicant had pre-existing degenerative changes at his cervical spine which had, prior to employment with the respondent, been asymptomatic. I accept that the applicant first experienced symptoms which were later attributed by his doctors to cervical pathology, around the same time as his right shoulder injury, and in the context of lifting and moving weights at work. I accept that, having been provided with a sufficiently complete and accurate factual history with regard to the cervical spine, Dr Dixon has given the opinion that an aggravation of the previously asymptomatic C3/4 and C4/5 spondylosis had been caused by the applicant’s work duties. That opinion is consistent with the opinion expressed by Dr Khan and the diagnoses made by Dr Bazina and Dr Nadanachandran. Whilst slightly different diagnoses had been made along the way by Dr Hassan, prior to the bone scan, and a specialist in rehabilitation medicine, Dr Dalton, both were satisfied that there was a symptomatic cervical condition. There is nothing in the evidence to suggest any other cause for the onset of cervical symptoms.
For all of these reasons, I feel a sense of actual persuasion that the applicant sustained an injury in the course of employment of the nature described by Dr Dixon as a result of the nature and conditions of his employment with the respondent. I am satisfied that employment with the respondent was the main contributing factor to the aggravation of the previously asymptomatic C3/4 and C4/5 spondylosis. I am satisfied, therefore, that the applicant has sustained an injury to his cervical spine which satisfies the requirements of s 4(b)(ii) of the 1987 Act.
Consequential left shoulder condition
The applicant claims that he has experienced increasing symptoms of pain and stiffness at his left shoulder as a result of using his left arm for “everything” in order to protect his injured right shoulder. This attribution of symptoms has consistently been reported by the applicant.
Symptoms in the left shoulder first appear to have been reported to Dr Khan in October 2019. The applicant was referred for MRI and physiotherapist review. On 23 October 2019, the applicant’s physiotherapist recorded that the applicant reported that his left shoulder had started to experience pain which he believed had started because he was using his left arm “for everything now”.
In a certificate dated 15 November 2019, Dr Khan gave the opinion that the applicant’s left shoulder pain was due to “overuse injury”.
An MRI of the left shoulder performed in December 2019 revealed minor tendinotic changes to the subscapularis and supraspinatus tendons. Although Dr Dalton did not consider this required specific treatment he did consider that the shoulder would benefit from the exercises and postural correction he considered necessary for the neck and right shoulder.
Similarly, Dr Burrow, whilst noting the pathology in the left shoulder shown on the MRI and signs on examination, did not recommend further treatment. The history provided to Dr Burrow was consistent with the other evidence of “overuse” following the right shoulder injury.
Consistently with the treating evidence, Dr Dixon took a history of the applicant developing pain and stiffness in the left shoulder while favouring the right shoulder. Dr Dixon diagnosed post-traumatic stiffness of the left shoulder with mild subscapularis and supraspinatus tendinosis without subacromial bursitis. Dr Dixon, in the context of the history provided to him, said this was causally related to the nature and conditions of the applicant’s employment.
The treating medical evidence and the applicant’s expert opinion are therefore consistent with the development of pain and restrictions in the left shoulder consequential to or resulting from the right shoulder injury.
The only medical opinion relied on by the respondent in disputing the condition to the left shoulder is that given by Dr Powell. Dr Powell appears, however, to have erroneously turned his mind to the question of whether there was an “injury” to the left shoulder for the purposes of s 4. This is evident from the reference to the absence of an “acute injury” and the lack of evidence to conclude that employment represented “the main contributing factor to the development or aggravation” of the condition in the left shoulder.
The authorities referred to above, make clear that the applicant is not required to establish that the condition in his left shoulder meets the definition of injury in s 4. All that is required is for the applicant to establish that symptoms and restrictions in his left shoulder have resulted from his right shoulder injury.
The injury to the applicant’s right shoulder is not in dispute. The respondent has, however submitted that the credibility of the applicant’s evidence and his allegation of a consequential condition in the left shoulder should be called into question by the applicant’s failure to disclose previous symptoms in his right shoulder.
It is apparent from the Certificate of Determination and accompanying Statement of Reasons issued by the Workers Compensation Commission in the 2013 proceedings that the applicant had complained of symptoms of pain and restriction in his right shoulder in 2011. An x-ray dated 2 May 2011 was noted to reveal mild thickening of the subacromial bursa with evidence of bursal impingement.
The applicant has submitted that no adverse inference would be drawn from this omission in considering the allegation of a consequential left shoulder condition given that there was no prior “injury” to the right shoulder and no evidence that the right shoulder was symptomatic in the period immediately prior to the applicant’s employment with the respondent. There is no medical evidence before me to suggest any ongoing symptoms, investigation or treatment of the right shoulder after 2013 until November 2018.
The prior history of right shoulder symptoms ought to have been disclosed to Dr Dixon and is relevant to the assessment of WPI. I am not, however, satisfied, in all the circumstances, that the omission is sufficient to tarnish the credibility of the applicant’s evidence generally.
The treating medical evidence reveals an onset of right shoulder and arm pain in the context of employment in November 2018. Investigations of the right shoulder after that date revealed subacromial-subdeltoid bursitis, supraspinatus tendonosis with a partial thickness articular surface tear and subscapularis tendonosis.
The pain in the applicant’s right shoulder was described in the treating evidence as persisting and at times worsening, despite extensive physiotherapy, use of Voltaren gel, heat packs and Panadeine Forte. The applicant underwent injections to the right shoulder under the care of Dr Burrow in late 2019 but the local anaesthetic made no difference to the applicant’s pain.
Dr Burrow reported that the applicant had ongoing shoulder pain which was worse with movement. The evidence from the applicant’s physiotherapists also indicates that the applicant complained of pain affecting his daily activities such as putting on and taking off his clothes. Despite initially persisting with light duties, the applicant was eventually unable to work.
Notwithstanding the surveillance evidence of the applicant playing a piano accordion, I am satisfied that the contemporaneous treating evidence is consistent with the applicant suffering significant symptoms in his right shoulder which were sufficient to cause him to favour or protect that shoulder.
The respondent has submitted that the fact of the applicant’s return to work and performance of light duties in accordance with his medical certificates, suggested that it was unlikely that the applicant would have overused his left shoulder. It is not, however, the applicant’s case that the overuse occurred solely in the context of the applicant’s ongoing work. Although the applicant’s statement provides little insight as to the manner in which the applicant “overused” his left shoulder , the treating evidence suggests that the applicant’s ability to perform activities of daily living with his right arm were impacted by the injury.
Dr Dixon’s opinion with regard to the consequential left shoulder condition is affected by the same deficiencies noted above in respect of his opinion on the cervical spine injury. Although indicating that the left shoulder condition was causally related to the nature and conditions of his employment, Dr Dixon has not explained the mechanism. In particular, Dr Dixon falls short of expressing a clear opinion that the left shoulder condition is consequential to the right shoulder injury. Dr Dixon’s report must, however, be read as a whole and it is relevant that he took a history of the left shoulder symptoms commencing whilst favouring the right shoulder. Dr Dixon’s report must also be considered in the context of the other evidence, all of which, is consistent with there being a consequential left shoulder condition.
Having carefully considered the evidence as a whole, I am satisfied that the applicant has experienced symptoms and restrictions in his left shoulder as a result of the injury to his right shoulder. I am satisfied that the applicant sustained a consequential condition affecting his left shoulder.
Referral to a Medical Assessor
Having made the findings above, I am satisfied that it is appropriate to remit this matter to the President for referral to a Medical Assessor to assess the degree of permanent impairment resulting from the accepted right shoulder injury, the cervical spine injury and the consequential left shoulder condition.
In reaching this view, I am cognisant of the fact that the respondent has not sought to rely on the opinions of Dr Hughes with regard to the degree of permanent impairment in these proceedings due to the requirements of cl 44 of the Regulation. I am, however, satisfied that there is a notified medical dispute as to the degree of permanent impairment set out in the most recent s 78 notice. The submissions made at arbitration hearing have also identified potential deficiencies in the assessment made by Dr Dixon.
The materials to be referred to the Medical Assessor will include all of those materials admitted into evidence in these proceedings.
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