Nathwani v Workers' Compensation Regulator

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Nathwani v Workers' Compensation Regulator [2021] QIRC 325
PARTIES:	Nathwani, Saher (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO.:	WC/2019/175
PROCEEDING:	Appeal against decision of the Workers' Compensation Regulator
DELIVERED ON:	21 September 2021
HEARING DATES:	1 and 2 July 2020
DATES OF WRITTEN SUBMISSIONS:	Appellant's written submissions filed on 24 December 2020 and Respondent's written submissions filed on 27 January 2021
MEMBER:	Merrell DP
HEARD AT:	Brisbane
ORDERS:	*1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:* (a) the review decision of the Respondent dated 29 August 2019 is set aside; and (b) another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers'Compensation and Rehabilitation Act 2003. *2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:* (a) the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 11 October 2021; and (b) unless otherwise ordered, the decision on costs be determined on the papers.
CATCHWORDS:	WORKERS' COMPENSATION - ENTITLEMENT TO COMPENSATION - worker employed as a Customer Service Attendant in a service station - worker suffered injury to her left shoulder diagnosed as adhesive capsulitis - worker applied for an assessment of permanent impairment in relation to left shoulder injury - review decision of respondent that worker did not suffer an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 - appeal by worker against review decision - whether worker's adhesive capsulitis in her left shoulder arose out of, or in the course of, her employment - whether employment was a significant contributing factor to that injury - worker's injury arose out of, or in the course of, worker's employment and workers' employment was a significant contributing factor to injury - review decision of respondent set aside and another decision substituted, namely, that the worker suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003
LEGISLATION:	Industrial Relations (Tribunals) Rules 2011, r 41 Workers' Compensation and Rehabilitation Act 2003, s 11, s 32, s 132A, s 179 and s 558
CASES:	Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788 Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461 Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 JBS Australia Pty Ltdv Q-COMP [2013] ICQ 13 Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519 Parks v Workers' Compensation Regulator [2018] QIRC 147 Ribeiro v Workers' Compensation Regulator [2019] QIRC 203 Rowe v Q-Comp [2009] QIRC 106; (2009) 190 QGIG 93 Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001 State of Queensland (Queensland Health) v Q‑Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447 Theiss Pty Ltd v Q-Comp [2010] ICQ 27
APPEARANCES:	Mr R. Green of Counsel instructed by Mr D. Curran of Smith's Lawyers for the Appellant. Mr B. McMillan of Counsel directly instructed by Ms O. Steele of the Respondent.

Reasons for Decision
Introduction

Calstores Pty Ltd operates Caltex service stations. Ms Saher Nathwani was employed as a Customer Service Attendant ('CSA') by Calstores Pty Ltd at a Caltex service station located in Surfers Paradise ('the service station').
On 28 February 2019, Ms Nathwani lodged a Form 132A with WorkCover Queensland, being an application for assessment of an injury to her left shoulder. Section 132A(2) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act') provides that certain workers may apply to the insurer to have their injury assessed under s 179 of the Act to decide if the worker's injury has resulted in a degree of permanent impairment.
Section 132A(7)(b) of the Act provides that the insurer may reject the application only if satisfied the worker has not sustained an injury.
By decision dated 20 May 2019, WorkCover rejected Ms Nathwani's application on the basis that she had not sustained an injury within the meaning of s 32 of the Act. Ms Nathwani then sought a review of the WorkCover decision by the Workers' Compensation Regulator ('the Regulator'). By review decision dated 29 August 2019, the Regulator confirmed the decision of WorkCover ('the review decision').
Ms Nathwani appeals against the review decision. Ms Nathwani contends that her left shoulder injury is one that arose out of, or in the course of, her employment and that her employment was a significant contributing factor to her injury in accordance with s 32 of the Act.[1] This is because:
[1] Ms Nathwani's Statement of Facts and Contentions filed on 17 December 2019 ('Ms Nathwani's contentions'), page 2/3.
·in or about July 2017, she began feeling pain in her left shoulder whilst unloading cartons of drinks in the stockroom at the service station;[2]
·on 14 December 2017, she attended upon her treating medical practitioner complaining of left shoulder pain after lifting something at work and that her shoulder had been aching for a couple of months prior to that;[3]
·prior to the event in July 2017, she had no symptoms or reduction in function pertaining to her left shoulder;[4] and
·on the basis of the opinion of Dr Malcolm Wallace, Orthopaedic Surgeon:
- her employment was a significant contributing factor to her left shoulder injury of adhesive capsulitis;[5] and
- it was unlikely that her previously diagnosed diabetes was a risk of her developing adhesive capsulitis.[6]
[2] Ms Nathwani's contentions, Annexure A, para. II.
[3] Ms Nathwani's contentions, Annexure A, para. III.
[4] Ms Nathwani's contentions, Annexure A, para. IV.
[5] Ms Nathwani's contentions, page 2/3, para. 3).
[6] Ms Nathwani's contentions, page 2/3, para. 4).
The Regulator:
·concedes that Ms Nathwani suffered a personal injury to her left shoulder, namely, adhesive capsulitis;[7]
·on the basis of the opinions of Dr Peter Dodd, Orthopaedic Surgeon, and Dr Andrew Lingwood, Consultant Occupational and Environmental Physician, contends that:
- Ms Nathwani's personal injury did not arise out of, '… or in the context of' her employment; and, or in the alternative
- her employment was not a significant contributing factor to her personal injury.[8]
[7] The Workers Compensation Regulator's statement of facts and contentions filed on 25 February 2020 ('the Regulator's contentions'), Attachment 2, para. 2.
[8] The Regulator's contentions, Attachment 2, para. 3.
There is no dispute that, at the relevant time, Ms Nathwani was a 'worker' within the meaning of s 11 of the Act.
The issues for determination are:
·did the adhesive capsulitis, from which Ms Nathwani suffered in her left shoulder, arise out of, or in the course of, her employment?[9] and, if so
·was Ms Nathwani's employment a significant contributing factor to that injury?[10]
[9] Workers' Compensation and Rehabilitation Act 2003 s 32(1)
[10] Workers' Compensation and Rehabilitation Act 2003 s 32(1)(a).
In my view, Ms Nathwani's adhesive capsulitis in her left shoulder:
·arose out of, or in the course of, her employment; and
·her employment was a significant contributing factor to that injury.
My reasons follow.
Did the adhesive capsulitis from which Ms Nathwani suffered in her left shoulder, arise out of, or in the course of, her employment?
The Act and the relevant principles
An appeal of this type, pursuant to ch 13, pt 3 of the Act, is a hearing de novo.[11] The onus is on Ms Nathwani to prove, on the balance of probabilities, that she had an injury within the meaning of the Act.[12] An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[13] Although the phrase 'arising out of' does not require the direct or proximate relationship which would be necessary if the phrase used was 'caused by', there must be some causal or consequential relationship between the worker's employment and the injury.[14]
[11] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461, [27] (Martin J, President).
[12] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).
[13] Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547, 558-559 (Fullagar J).
[14] Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788, 788 (President Hall).
An injury 'in the course of employment' means an injury sustained while the worker is engaged in the work which is part of the worker's employment but is also something which is incidental to his or her service.[15]
[15] Theiss Pty Ltd v Q-Comp [2010] ICQ 27, [3] (President Hall).
Exhibits 1 and 2, which were tendered by consent, included the medical records of four General Practices from which Ms Nathwani sought medical assistance, including, between 2013 and 2019, the practice of Dr Galina Chafikova of the Robina Seven Day Doctors.
Ms Nathwani gave evidence on her own behalf and also led expert evidence from Dr Stephen Thornley, Endocrinologist, and from Dr Wallace. The Regulator's case relied upon the evidence of Dr Dodd, Dr Lingwood and Mr Aaron Creagh, Safety and Well‑Being Business Partner of Calstores Pty Ltd.
Ms Nathwani's primary submission is, due to her favouring her left shoulder because of an earlier right shoulder injury, the subsequent repetitive lifting of heavy weights above shoulder height which she undertook in her performing a greater amount of stock work '… caused her to suffer the condition' (adhesive capsulitis).[16]
[16] Ms Nathwani's submissions filed on 24 December 2021 ('Ms Nathwani's submissions'), para. 83.
The Regulator's primary submission is that, based on the medical evidence, adhesive capsulitis is an idiopathic disease and Ms Nathwani's employment was merely the setting in which the natural process of the idiopathic disease emerged.[17] The Regulator also submitted that Ms Nathwani's evidence was self-serving and unreliable because there were clear inconsistencies between her oral evidence and the account she gave to the reporting doctors and as recorded in the medical notes of Dr Chafikova.[18]
[17] The Regulator's submissions filed on 27 January 2021 ('the Regulator's submissions'), paras. 79-81.
[18] The Regulator's submissions, para. 58.
Having regard to the submissions made by the parties, the approach I will take in determining this first issue will be:
·first, to make an assessment of Ms Nathwani's evidence in terms of:
- the nature and extent of the work she said she was performing; and
- the symptoms she suffered and her reporting of them; and
·secondly, to assess the medical evidence.
Ms Nathwani's general duties as a CSA at the service station
Ms Nathwani's evidence was that she commenced employment with Calstores Pty Ltd in 2008 and worked for the majority of her time at the service station.[19]
[19] T 1-9, ll 30-38.
Ms Nathwani stated that the service station Store Managers were:
·from approximately mid-2014 to January 2017, Ms Liza Martin; and
·from approximately January 2017, Ms Jenny Nielsen.[20]
[20] T 1-17, ll 11-30.
The Regulator did not dispute that the role of a CSA is one that is mostly associated with duties related to the operation of the convenience store attached to the service station and that a CSA's duties included:
·the operation of petrol dispensing, involving console operation and the steps associated with enabling motorists to obtain petrol;
·those associated with the running and operation of the convenience store attached to the service station; and
·those associated with cleaning the forecourt of the service station.[21]
[21] Ms Nathwani's submissions, para. 7 and the Regulator's submissions, para. 10.
The injury to Ms Nathwani's right shoulder
Ms Nathwani's evidence was that in March 2016 she developed symptoms in her right shoulder which she stated occurred on a busy weekend when she had to stack boxes of 1.2 litre soft drink bottles and, that at the end of the shift, she felt a 'sheer pain' in her right hand shoulder.[22] Ms Nathwani did not report that injury until the following Monday. An application for workers' compensation for that injury was made by her employer, she had a week off work and when she returned to work after that week, she performed light duties until August 2016.[23]
The injury to Ms Nathwani's left shoulder
[22] T 1-23, ll 23-43.
[23] T 2-24, l 42 to T 2-25, l 13.
Ms Nathwani's evidence-in-chief
Ms Nathwani's evidence-in-chief was that when she had symptoms in her right shoulder, it did change the way she did things at work. Ms Nathwani stated that her right shoulder was in a sling and that when her right shoulder was out of use, she got into a habit of protecting it and she was hesitant to use too much of her right hand.[24] Ms Nathwani stated this affected the way she restocked shelves, such that she would put more pressure on her left shoulder because it became automatic to protect her right shoulder.[25]
[24] T 1-25, ll 1-8.
[25] T 1-25, ll 10-14.
Ms Nathwani stated that:
·there were items that were stored below shoulder level, but that on most days there was not enough room, so stock would be kept on the floor, which included milk crates with up to 9 bottles of 2 litre milk, that would have to be picked up from the floor;[26]
·the milk would be put on trolleys to fill the outside fridges where she would lift anywhere between 10 to 55 crates on a day, which could be stacked up to 5 crates high, which required her to reach above her shoulder and that she had to hold each crate and balance it on herself to make sure she brought it down safely to place on a trolley to then take them out to fill the fridges;[27]
·to put stock in the chillers in the store, the highest she would have to reach would require her to step onto a stepping stool which was about 50 cm in height;[28]
·she had emptied up to 50 milk crates in a shift;[29] and
·at the time Ms Martin was the store manager (between 2014 and up to January 2017), she (Ms Nathwani) would spend between three to four hours in a shift in the stockroom and when Ms Nielson became the store manager after January 2017, she (Ms Nathwani) spent probably about six hours constantly attending to those duties in the stockroom performing stock duty.[30]
[26] T 1-15, ll 16-19.
[27] T 1-15, ll 21-45.
[28] T 1-16, ll 24-35.
[29] T 1-16, ll 43-46.
[30] T 1-20, ll 26-40.
Ms Nathwani further stated that:
·she developed symptoms in her left shoulder in about June or July 2017, but had niggling pain from about May onwards and started feeling it a lot more in June or July;[31]
·she would take a lot of pain killers, namely, '… Nurofen Zavance or even the Panadol Rapid or something before my shift, during the shift and after my shift;'[32]
·at first she did not seek any medical treatment for her left shoulder because she was scared to go to anybody because they were going to ask what was the cause of it and she did not want to bring her work into it, but she did tell her manager at the time, Ms Nielson, in about late July or early August 2017;[33] and
·she did not do anything about the left shoulder pain she was experiencing until December 2017 when she spoke to the Business Manager, Ms Kerry Mount, following which, on 18 December 2017, a mediation took place between Ms Nathwani, Ms Nielson and Ms Mount which seemed to be about the proportion of Ms Nathwani's duties between performing console work and stocking shelves, however, nothing changed in terms of her duties in that regard.[34]
[31] T 1-25, ll 25-30.
[32] T 1-25, ll 32-36.
[33] T 1-25, l 38 to T 2-26, l 3.
[34] T 1-26, ll 13-38.
In particular, Ms Nathwani stated her entitlement to long service leave featured in the way that she dealt with her left shoulder symptoms at work. Ms Nathwani stated that when she reported her left shoulder injury to Ms Nielson, she was notified that if she were to formally report that '… they might pursue it that way, that I won't make it to my long service leave' and, for that reason, she never went to the doctor.[35]
[35] T 1-27, ll 18-28.
Exhibit 3 includes text messages between Ms Nathwani and a co-worker in about November 2017, late December 2017 and early January 2018 which included two photographs of shelves in the convenience store. Exhibit 4 includes text messages from Ms Nathwani to the same co-worker sent on 6 and 13 May 2017, and on 15 July 2017, and includes three photographs depicting the stockroom and one photograph depicting a lolly rack in the convenience store. The first photograph of the stockroom, which formed part of Exhibit 4, was reproduced in a clearer photograph which became Exhibit 7.[36]
[36] T 2-4, l 21 to T 2-5, l 8.
The effect of this evidence was that:
·Ms Nathwani was left with a lot of work to do to restack shelves and chillers by another co-worker who performed the shift immediately prior to her shifts on the days the text messages were sent and the photographs taken;[37] and
·the photograph taken on 13 May 2017, forming the first page of Exhibit 4 and constituting Exhibit 7, which depicts the stockroom, shows the mobile trolley cages in which stock was temporarily placed before it was then placed on shelves in the stockroom.[38]
[37] T 1-39, l 35 to T 1-42, l 8.
[38] T 1-42, ll 30-46.
Ms Nathwani's evidence-in-chief continued on the second day of the hearing because of the interposition of Dr Thornley on the first day.
Ms Nathwani was asked when she first noticed symptoms in her left shoulder and she stated that she started noticing the symptoms '… significantly in May' and that over the course of time after May, the symptoms got worse as time progressed.[39] Ms Nathwani was also asked what, if anything, she did about those symptoms in talking to her employer, to which she responded that in some time around July and August (2017) she approached her store manager, in line with the protocol of the company and said to her that '… the workload is immense and I'm scared that I might end up hurting my left shoulder because I'm in quite a lot of pain.'[40]
[39] T 2-5, ll 11-17.
[40] T 2-5, ll 19-25.
Ms Nathwani then stated that following the injury to her right shoulder, she changed the way in which she worked, namely, when lifting lolly boxes and anything above the level of the fridges and freezer, because of the height of the shelves in the freezer and the fridges, she used her left arm to climb up on a shelf to reach the top so as to retrieve boxes of products and lift them down.[41]
[41] T 2-5, l 27 to T 2-6, l 7.
Ms Nathwani's evidence was that the lifting she described, as set out in the paragraph immediately above, was not always required and that sort of lifting commenced from the end of 2016 and started getting worse in 2017.[42]
[42] T 2-6, ll 9-23.
The first time Ms Nathwani sought medical treatment in relation to her left shoulder was in December 2017.[43] The last time Ms Nathwani physically worked at the service station was on 26 January 2019 and she was then on long service leave until April 2019.[44]
[43] T 1-27, ll 30-31.
[44] T 1-28, ll 21-27.
Ms Nathwani's evidence in cross-examination

In cross-examination, Ms Nathwani:
·agreed that during a standard shift as a CSA, she could be variously required to do a combination of all different tasks, including cleaning duties, console duties, rubbish removal, setting up the forecourt, filling the ice cream fridges and changing signage;[45]
[45] T 2-8, ll 10-35.
·stated - when it was put to her that it was standard, as a CSA, for her to do a range of duties on every shift - that from the end of 2016 onwards, but mainly from April/May 2017, she was doing a lot more of one type of work, was not doing a lot of different tasks and that she was '… spending a lot more time doing repetitive tasks';[46]
[46] T 2-8, ll 40-45.
·agreed that it was not common that the store would receive 50 milk crates in one day;[47]
·stated that she performed two nine‑hour shifts, two eight-hour shifts and one five‑hour shift, on Saturday, Sunday, Monday, Tuesday and Wednesday;[48]
·agreed she was provided with safety equipment, including step stools and step ladders, to do the tasks she was required to do and was provided with occasional training in manual handling;[49]
·stated that it was only towards the end of her employment, '… Probably not till 2017/18' that she was aware of the employer's requirement that staff were not to lift heavy items above 1.4 m;[50] and
·agreed there were markings on the walls in the storeroom to indicate 1.4 m in height, that she understood those markings were to guide her not to lift items higher than that mark, and that she was to use either the step stool or the ladder if she needed to place items (on a shelf) higher than that mark.[51]
[47] T 2-19, ll 37-47.
[48] T 2-9, ll 1-13.
[49] T 2-11, ll 1-7.
[50] T 2-12, ll 18-23.
[51] T 2-12, ll 34-41.
In re-examination, Ms Nathwani stated that while step stools and ladders were available for use, they were not practical to be able to use because she could only use them if there was space available.[52]
[52] T 2-65, ll 21-43.
In terms of the onset of pain symptoms in her left shoulder from May 2017, Ms Nathwani stated that compared with her right shoulder pain from March 2016, there was not any particular event or injury in May 2017 in which she suffered 'sheer pain' which enabled her to be confident that the pain first emerged at that time; and that it was just a '… gradual build-up of pain'.[53]
Ms Nathwani's reporting of her left shoulder pain to medical practitioners
[53] T 2-26, ll 1-40.
Dr Chafikova
In cross-examination, Ms Nathwani agreed that:
·she had consulted Dr Chafikova on 30 November 2017, when she told Dr Chafikova she was 'stressed at work'[54] and when it was put to her that there was no record of her mentioning, during that consultation, anything about pain in her left shoulder, Ms Nathwani responded: 'Probably not. I was still debating should I or should I not.';[55]
·the first time she first consulted any doctor about pain to her left shoulder was with Dr Chafikova on 8 December 2017;[56] and
·she consulted Dr Chafikova on 14 December 2017, from which Dr Chafikova recorded that Ms Nathwani stated her left shoulder had been aching for a couple of months and thought it was from over-using it at work for a couple of months prior.'[57]
[54] Exhibit 1, page 75.
[55] T 2-31, ll 4-15.
[56] Exhibit 1, page 74 and T 2-31, ll 21-41.
[57] Exhibit 1, page 74.
In respect of the consultation on 14 December 2018, Ms Nathwani stated that she did not want to make a big deal out of it and did not want Dr Chafikova '…to go and start ringing WorkCover or anything.'[58]
[58] T 2-32, ll 4-14.
Ms Nathwani then saw Dr Chafikova regarding her left shoulder on 19 January 2018[59] and on 22 January 2018.[60] The next time Ms Nathwani saw a doctor about her left shoulder pain[61] was when she saw Dr Chafikova on 21 June 2018. The clinical consultation note records:
1.L) shoulder sore, not improving, getting more and more restricted,
rom getting more restricted, due to the pain in upper arm,
wants to have a physio therapy bulk bill,
[59] Exhibit 1, page 72.
[60] Exhibit 1, page 72.
[61] T 2-34, ll 34-36.
[62] Exhibit 1, page 69.
states didn't use the sessions,[62]
When cross-examined about that consultation, Ms Nathwani stated Dr Chafikova did ask about her work duties.[63] However, Ms Nathwani agreed that she did not complain to Dr Chafikova that she needed adjusted duties at work or some kind of medical certificate to affect her work duties. Ms Nathwani stated that this was because she did not want her work involved and that she did not want to go on to workers' compensation.[64]
[63] T 2-34, ll 40-43.
[64] T 2-34, l 44 to T 2-35, l 2.
The next time Ms Nathwani consulted Dr Chafikova about her left shoulder was on 31 October 2018.[65] In the notes of that consultation, there is no record of Ms Nathwani specifically complaining about her work duties.
[65] Exhibit 1, page 63.
On 29 January 2019, Ms Nathwani again consulted Dr Chafikova. The record of that consultation notes Ms Nathwani stating that she wanted a stress leave certificate because she had been bullied at work for three years on and off, that she could not stand it anymore, that she was depressed and wanted to see a psychologist.[66]
[66] Exhibit 1, pages 60-61.
Then on 11 February 2019, in respect of Ms Nathwani's further consultation with Dr Chafikova, the clinical record for that consultation, under the heading of 'History:' states:
solicitor asked to open WC certificate for L) shoulder injury,
pain started in Augast [sic] 2017 , developed slowly from lifting haevy [sic] stock and beens [sic] at work,
still sore all the time, elevation about 70 degrees,
[67] Exhibit 1, page 59.
rotation is restricted, had 3 cortizone [sic] injections untill [sic] now.[67]
Ms Nathwani's evidence, in cross-examination, about this consultation was equivocal. Ms Nathwani denied that the consultation came about because her solicitor suggested to her that she should go and see a doctor about her left shoulder pain, but when questioned about whether she attended her General Practitioner on the day for the purposes of getting a medical certificate in relation to a workers' compensation application, Ms Nathwani's evidence was that she did not recall why she attended her General Practitioner.[68]
[68] T 2-35, ll 33-45 and T 2-37, ll 17-31.
Exhibit 8 is a Queensland Workers' compensation medical certificate signed by Dr Chafikova on 11 February 2019. That certificate relevantly provided that:
·the injury was left shoulder pain, bursitis; and
·Ms Nathwani had stated that:
- the date of the injury was August 2017; and
- the pain started in August 2017 and developed slowly from lifting heavy stock and '… beens at work' (which I assume to mean bins at work).
Dr Lingwood, Dr Dodd and Dr Wallace
Ms Nathwani recalled seeing Dr Lingwood on 3 April 2019, Dr Dodd on 13 May 2019 and Dr Wallace on 16 May 2019 [69] and also recalled that they all asked her for information about the type of work, including the physical, manual handling work, that she was doing at the service station.[70]
[69] T 2-41, ll 21-38.
[70] T 2-41, ll 40-44.
Ms Nathwani agreed that:
·she understood that Dr Lingwood, Dr Dodd and Dr Wallace were asking her questions because they were interested to understand her work background and whether her (left shoulder) injury would have arisen in the course of her employment; and
·it was important that she told those doctors in some detail, the types of activities and work that she was required to do.[71]
[71] T 2-42, ll 1-6.
Dr Wallace
Ms Nathwani recalled seeing Dr Wallace on 16 May 2019 at the request of her solicitors.[72]
[72] T 2-41, ll 36-38.
Dr Wallace, in his first report dated 16 May 2019 (Exhibit 9) under the heading of 'HISTORY', recorded that Ms Nathwani told him that she initially injured her right shoulder in an incident on 5 March 2016 and subsequently developed injuries to her left shoulder in July 2017 over a period of time.[73]
[73] Exhibit 9, page 2.
Under the heading of 'FURTHER HISTORY' Dr Wallace recorded:
She states that because of her right shoulder pain she was using her left arm for most of the work she was required to do. She states that around July 2017 she started to experience left shoulder pain. She states this occurred over a period of time and was related to the increased workload of similar work she was required to do and working under pressure. She states that she again reported this injury, but did not enter a WorkCover Claim. She states that her complaints of pain in the left shoulder were largely ignored and she worked until she states that her left arm ceased [sic] up and she lost movement in it. At this time, she states that she re-attended her general practitioner and had a further X-ray and ultrasound of her left shoulder.[74]
[74] Exhibit 9, page 3.
Ms Nathwani accepted that if Dr Wallace put the above history in his report, then she would have given him that information.[75]
[75] T 2-46, l 23 to T 2-47, l 12.
Dr Dodd
Ms Nathwani recalled seeing Dr Dodd on 13 May 2019.[76]
[76] T 2-41, ll 33-34.
In Dr Dodd's first report dated 13 May 2019 (Exhibit 13), under the heading of 'History:', Dr Dodd recorded:
Saher Nathwani is 46 years old and is right handed and at the time of her injury was employed as a Customer Service Attendant for Caltex Service Station (Calstores Pty Ltd), where she had been for ten and a half years. On various occasions she was employed as a casual and permanent part time. At the time of the injury in July 2017, she was employed as a permanent part time working 36 hours a week.
In July 2017, while she was doing her normal duties she started to develop pain in her left shoulder. She attributed this to overuse of her left shoulder because of a previous claim she had had in 2016 for an injury to her right shoulder. She said doing her normal duties, which involved some lifting and reaching, she developed pain in the left shoulder which radiated to the mid humeral area. She kept working and did not consult her General Practitioner until December 2017.[77]
[77] Exhibit 13, page 2.
When, in cross-examination, Ms Nathwani was asked, in relation to the above‑mentioned part of Dr Dodd's report, if she recalled telling Dr Dodd she started to develop pain in her left shoulder in July 2017, that the pain arose during the course of her normal duties and that her normal duties involved 'some' lifting and reaching, Ms Nathwani did not accept that that was what she told Dr Dodd.[78] Ms Nathwani did accept that she told Dr Dodd she attributed her left shoulder injury to overuse of her left limb.[79]
[78] T 2-44, ll 3-8 and 14-19.
[79] T 2-44, ll 10-12.
Further, when asked if she contended that she explained to Dr Dodd the extent of lifting, carrying and reaching that she described in her evidence-in-chief, Ms Nathwani stated that it depended upon how much Dr Dodd asked and that every doctor asked her different questions.[80] When it was suggested to Ms Nathwani that she did not tell Dr Dodd about having to lift and unload up to 50 milk crates in a day and having to spend up to 6 hours at a time unloading stock, she stated that she would have provided that information if Dr Dodd had asked her.[81]
[80] T 2-44, ll 21-23.
[81] T 2-44, ll 25-30.
Dr Lingwood
In his report to WorkCover dated 3 April 2019 (Exhibit 15), Dr Lingwood recorded what Ms Nathwani reported to him, namely:
·in early 2017, there was a change in the way that stock was ordered in the store, meaning that during two of Ms Nathwani's shifts at work (her weekend shifts) there was a greater amount of unpacking of stock than had previously been the case;
·there were no symptoms in her left shoulder initially at that time, nor over the coming months, but in around August 2017, she started to notice a gradual build‑up of discomfort and tightness in her left shoulder;
·in response to direct questioning, Ms Nathwani denied an injury or specific traumatic incident; and
·she was continuing to perform her normal duties, which included regular packing and unpacking of stock.[82]
[82] Exhibit 15, page 2.
Ms Nathwani's evidence in cross-examination, in general, was that she did not recall telling Dr Lingwood the first two of the above matters, but recalled telling him that she continued to perform her normal duties which included regular packing and unpacking of stock.[83]
[83] T 2-42, ll 16-37.
When it was suggested to Ms Nathwani that she did not tell Dr Lingwood she would spend three or four, or up to six hours on a single shift packing and unpacking stock or that she would have to unpack up to 50 crates of milk, she stated that Dr Lingwood did not ask her those questions and that she described her work to Dr Lingwood in a general way which was what Dr Lingwood had asked.[84]
[84] T 2-42, l 39 to T 2-43, l 6.
My assessment of Ms Nathwani's evidence
The injury to Ms Nathwani's right shoulder, her subsequent favouring of her left shoulder and the change in duties she performed from late 2016/early 2017
Ms Nathwani submitted that:
·she maintained her position in relation to the nature and extent of deliveries of milk crates;
·the photographic evidence (Exhibits 3 and 4) was consistent with what she said about the way the system of work changed over the period of time, the impact of such changes, that access to the stockroom was very difficult and that it was crowded with stock; and
·in relation to her lifting above shoulder height, she denied that it was very rare for her to lift boxes higher than her body and while accepting that there were step stools and stepladders to assist in her raising her body height, she stated they were not of assistance because, due to their number, boxes had to be stacked against the wall.[85]
[85] Ms Nathwani's submissions, paras. 23-28.
The Regulator submitted that:
·Ms Nathwani's failure to accept that she knew until the end of her employment not to stack boxes above 1.4 m high in the stockroom was contradicted by an acknowledgement that she knew the line painted on the wall was there to remind staff not to stack items higher than the line;[86] and
·the evidence contained in Exhibit 4, and Ms Nathwani's evidence generally, did not prove that Ms Nathwani did not have ready access to the step stools and ladders needed to do her work.[87]
[86] The Regulator's submissions, para. 59.
[87] The Regulator's submissions, para. 59.
However, the Regulator accepted:
·Ms Nathwani's description of her role, namely, comprising of duties associated with the management of the till and various stock duties related to the operation of the convenience store; and
·Ms Nathwani's evidence that:
- her role originally constituted a proportion between the console and stock work as being one where stock work comprised a smaller proportion of the work; and
- the stock work activities increased over time and leading up to the point where she started to experience right shoulder symptoms and then further, increasing through to the time she developed left shoulder symptoms.[88]
[88] Ms Nathwani's submissions, para. 10 and the Regulator's submissions, para. 10.
Indeed, the Regulator accepted that it was not controversial that Ms Nathwani's work as a CSA frequently involved repetitive lifting, sometimes above shoulder height, and other manual handling work.[89]
[89] The Regulator's submissions, para. 11.
Further, there is no real dispute about the circumstances and consequences of the March 2016 injury to Ms Nathwani's right shoulder.
In cross-examination, Ms Nathwani agreed that her employer:
·accepted she had injured her right shoulder at work;
·supported her in attending physiotherapy; and
·provided her with appropriate light duties so that she could continue working notwithstanding her right shoulder injury.[90]
[90] T 2-27, ll 13-19.
Ms Nathwani also accepted that while she was on light duties in 2016 with her right shoulder injury, she did not do any heavy lifting at work and that when she returned to normal duties in August 2016, she continued to experience 'slight' pain but nothing that affected her ability to work.[91]
[91] T 2-25, ll 11-42.
The Regulator did not seriously challenge Ms Nathwani's evidence that after she returned to normal duties in August 2016, she favoured her right arm or shoulder in order to avoid pain to her right shoulder.[92]
[92] T 2-25, ll 44 to T 2-26, l 2 and the Regulator's submissions, para. 12.
Ms Nathwani gave evidence about retrieving items from the stockroom or from the shop floor (when there was not enough space in the stockroom) and placing them onto shelves and into fridges in the store after 2016. This work involved:
·emptying and filling the trolley cages used to move stock in between the stockroom and the store;
·filling the fridges with stock; and
·filling the shelves.[93]
[93] T 1-14, ll 14-21.
Ms Nathwani's evidence then was:
All right. And tell us about the movements associated with putting stock into the fridge?---Well, before, we used to stock it to the level where we could reach easily and just take it out and fill it. But then – and that was – obviously, it had to be filled, so – but then it started changing, where we were much higher, stocking stuff, and - - -
When did that change?---End of – well, from mid to end of 2016 onwards.
All right. So what was the heaviest that you would lift when you were putting stock into the fridge?---Sometimes you could have a box of two-litre Coke, eight in a box, and you would be lifting that, purely for the fact there would be no room to manoeuvre a trolley. So you had no choice, so you had to empty the stock from the stock room outside to put the fresh stock in for the new promo, mainly because there was no room to manoeuvre anything in and out of - - -
All right. And after 2016, can you give an indication as to the height, at the highest level, that you had to reach in order to put stock into the fridge?---To be honest with you, I couldn’t reach because we were provided stepping stool and three-step ladder, and sometimes stock would be up to the ceiling. Like, chips boxes and things like that. And even in the fridge – cool room – the bottles would be higher than your arm’s length, and those cold fans blowing on your back while you’re trying to do that. So yes, it was different compared to prior to 2016.
All right. So just thinking about in a 30-minute[94] period after 2016, putting stock into the fridge, how many times do you think you would be reaching up above your shoulders?---I couldn’t even count. That many times. Probably about 30-plus times. Sometimes more. Depends how much stock there was.[95]
[94] This seems to be an error in the transcription.
[95] T 1-14, l 23 to T 1-15, l 2.
As referred to earlier, Ms Nathwani's evidence was that:
·because there was not enough room in the stockroom, stock would be kept on the floor, which included milk crates with up to 9 bottles of 2 litre milk, and that would have to be picked up from the floor;
·the milk would be put on trolleys to fill the outside fridges where she would lift anywhere between 10 to 55 crates in a day, which could be stacked up to 5 crates high, which required her to reach above her shoulder and that she had to hold each crate and balance it on herself to make sure she brought them down safely to place on a trolley to then take them out to fill the fridges;
·to put stock in the chillers in the store, the highest she would have to reach would require her to step onto the stepping stool which was about 50 cm in height; and
·after January 2017, she spent probably about six hours constantly attending to those duties in the stockroom performing stock duty.
Furthermore, whilst I acknowledge they are a snapshot at a particular time, the photographs of the stockroom contained in Exhibit 4 and Exhibit 7 are evidence tending to prove that there was a lot of stock that was stacked high, which is consistent with Ms Nathwani's evidence on these matters.

Ms Nathwani did not give clear evidence-in-chief about the estimates of the weights she would lift when moving stock. Ms Nathwani's evidence, when cross-examined about the Caltex Job Dictionary CSA (Exhibit 18) which described the daily accepting of deliveries, was that she would shift items weighing 15 to 20 kgs occasionally and items less than 10 kgs frequently.[96] In my view, this is the best evidence of the weights Ms Nathwani would be lifting when moving stock.
[96] T 2-15, ll 27-42.
I generally accept Ms Nathwani's evidence about the duties she said she performed following her injury to her right shoulder, the change to the way that she said she performed her duties following her right shoulder injury, and the change in the nature of the duties she performed from late 2016 and early 2017, namely, the greater period of time she spent constantly attending to duties in the stockroom retrieving stock and placing stock on the store's shelves and fridges. There are three principal reasons for this:
·first, the concessions made by the Regulator that I have referred to above at paragraphs [60], [61] and [65];
·secondly, the fact that the Regulator called no evidence from any person who directly observed Ms Nathwani performing her duties that would tend to cast any doubt on Ms Nathwani's evidence about these matters; and
·thirdly, Ms Nathwani's evidence in cross-examination about these matters, summarised in paragraph [33], did not persuade me that her evidence about the change in her duties should not be accepted.
Exhibit 17 is a Caltex document, dated September 2011, that contains the Functional Task Analysis of a CSA's duties, including unpacking mobile trolley cages (called delivery cages) and restocking shelves and fridges. Exhibit 18 is a document updated in June 2020, which contains a work description for a CSA. Exhibit 19 is a Manual Handling Operating Procedure for CSAs. However, in making my determination about the work performed by Ms Nathwani, the more accurate evidence is her own evidence as opposed to documents such as these. Indeed, Ms Nathwani's evidence was that the CSAs used to '… sort of get timed to do our, as it was portrayed, chores. So we had to make sure that things get done faster.' [97]
[97] T 1-15, ll 5-7.
I find that:
·Ms Nathwani's work involved repetitive lifting, sometimes above shoulder height, and other manual handling work;
·the stock work activities increased over time and leading up to the point where she started to experience right shoulder symptoms and then further, increasing through to the time she developed left shoulder symptoms;
·after she returned to normal duties in August 2016, she favoured her left arm or shoulder in order to avoid pain to her right shoulder;
·from about late 2016, early 2017, Ms Nathwani was performing a greater amount of work involving stock, namely, retrieving stock in the stock room to place in the fridges and shelves in the convenience store and then placing the stock in the shelves and fridges in the convenience store;
·that work required her to reach above her shoulder to retrieve stock that was stacked high which required lifting of heavy crates of milk bottles or soft drinks from above shoulder height onto the ground, which involved balancing the crates to make sure she brought them down safely; and
·this would involve lifting items weighing 15 to 20 kgs occasionally and items less than 10 kgs frequently.
Ms Nathwani's reporting of symptoms of her left shoulder to medical practitioners
Ms Nathwani submitted, that in relation to the issues raised with her in cross‑examination about the date she reported the incident, the prospect of losing long service leave entitlements was a proper foundation for her concern having regard to the conversation she had with her supervisor. Ms Nathwani submitted that fear extended to the manner in which she interacted with her General Practitioner and her refraining from speaking with her General Practitioner about her symptoms.[98]
[98] Ms Nathwani's submissions, para. 17.
Ms Nathwani also submitted that while there was some difference in the manner in which she reported the timing of symptoms to her left shoulder, no adverse view should be made in relation to the factual matter as to when she stated the symptoms became such that she noticed them. In that regard, Ms Nathwani submitted that her reporting was essentially consistent, namely, that she started to notice pain in or around May 2017, that history was consistent with what she told Dr Lingwood and there is the fact that she was reluctant to involve work because of a fear of losing her job and her income security which would account for '… some differences in detail regarding the manner in which the history of symptoms was reported.'[99]
[99] Ms Nathwani's submissions, para. 20.
Ms Nathwani then submitted that:
·in respect of her reporting of her duties to Dr Lingwood, she answered the questions that were put to her by Dr Lingwood;
·in respect of her evidence denying telling Dr Dodd the symptoms started in July 2017, this was because the symptoms started in May 2017, but the intensity of her pain was in July 2017; and
·in respect of her evidence to the doctors about the tasks she performed, it was clear that the doctors '… did not appreciate the details of specifics about the tasks performed, or the circumstances in which they were performed' and her evidence remained consistent when asked about those matters.[100]
[100] Ms Nathwani's submissions, paras. 30-31.
The Regulator submitted that:
·Ms Nathwani gave evidence that her left shoulder symptoms began in May 2017, yet told each of the reporting specialists her symptoms began in July or August 2017 and she told her General Practitioner in December 2017 that she had been experiencing pain for a couple of months;[101]
[101] The Regulator's submissions, para. 58.
·it was most unlikely that each of the three reporting specialists made errors in recording such critical information as to the onset of symptoms, and the far more likely scenario is that Ms Nathwani gave each of the reporting doctors the history set out in the reports and to the extent that varies from the evidence given by her to the Commission, the account given in the medical reports should be preferred;[102]
[102] The Regulator's submissions, para. 58.
·Ms Nathwani's reporting of her left shoulder pain to her employer was in July 2017 and her evidence that she did not wish to pursue that complaint because of her impending entitlement to long service leave and her concern that she would lose her job is entirely inconsistent with the employer's approach to her previous right shoulder injury which was supportive;[103]
[103] The Regulator's submissions, para. 60.
·Ms Nathwani did not consult a doctor until December 2017 and did not seek a workers' compensation medical certificate until January 2019,[104] after she had consulted a solicitor and sought time off work due to alleged bullying;[105]
[104] The workers' compensation medical certificate was obtained in February 2019 - Exhibit 8.
[105] The Regulator's submissions, para. 61.
·Ms Nathwani's refusal to concede that she had told the reporting specialists matters of fact set out in the reports, such as the time her symptoms commenced, undermines her reliability;[106]
[106] The Regulator's submissions, para. 62.
·Ms Nathwani's evidence as to the nature of the work duties were significantly different to what she told Dr Dodd and Dr Lingwood and went considerably further than the account she gave to Dr Wallace; and that Dr Lingwood and Dr Dodd were explicit in their evidence that their opinions were based upon the history provided to them by Ms Nathwani;[107]
·Ms Nathwani's explanation, in cross-examination, that she did not tell Dr Dodd, Dr Lingwood and Dr Wallace the detail about the work she was doing, because they did not ask, does not bear scrutiny because:
- Ms Nathwani understood the importance of telling the reporting doctors about her work tasks in the context of their assessments of the cause of her left shoulder injury, such that it was most unlikely that she would simply not have told them because they did not ask; and
- after she returned to normal duties in August 2016 (following her right shoulder injury) she continued to experience slight pain in her right shoulder but nothing affected her ability to work and that after that time she was still favouring her right shoulder because she had fear of doing the same thing again, being an account entirely consistent with that recorded in the reports of Dr Dodd and Dr Lingwood and entirely inconsistent with her account in her evidence that her work involved repeated and frequent heavy lifting of boxes above shoulder height;[108]
·her contention that her adhesive capsulitis arose from her employment in May 2017 and that changes in her work duties over a period of time, including increased stock work and requirements to lift heavy boxes above shoulder height, was a significant contributing factor to that condition, where the changes in work duties commenced from mid to end of 2016 onwards, was inconsistent with the documented account she gave to the doctors she saw for treatment and assessment;[109] and
·Ms Nathwani's evidence that she told her General Practitioner, on 14 December 2017, some 12 to 18 months after the alleged changes in work duties, that her left shoulder had been aching for a couple of months, was inconsistent with her evidence that she had pain symptoms in the left shoulder from May 2017 which she connected with a change to her work duties since mid to late 2016.[110]
[107] The Regulator's submissions, para. 63.
[108] The Regulator's submissions, para. 63.
[109] The Regulator's submissions, para. 64.
[110] The Regulator's submissions, para. 65.
It is true that Ms Nathwani has varied in nominating, when giving a history to medical practitioners, the months in 2017 when she says her left shoulder symptoms started. However, in my view, these inconsistencies are not so egregious that it should cause me to find that her evidence was self-serving and unreliable.
I have come to this conclusion because:
·Ms Nathwani's evidence was that she had a niggling pain in her left shoulder from about May 2017 onwards and she started feeling a lot more pain from July 2017;
·there is no dispute that Ms Nathwani reported to Ms Nielsen that she was having left shoulder pain in around July 2017;
·Ms Nathwani informed Dr Chafikova:
- on 8 December 2017, that her left shoulder had been sore for a few months; and
- on 14 December 2017, that her shoulder had been aching for a couple of months;
·Ms Nathwani informed Dr Wallace, Dr Dodd and Dr Thornley[111] that she began to experience pain in her left shoulder in July 2017; and
·Ms Nathwani informed Dr Lingwood that in or around August 2017 she started to notice a gradual build-up of discomfort and tightness in her left shoulder.
[111] Exhibit 5, second page, second paragraph.
Having regard to what Ms Nathwani informed Dr Chafikova, while it could be said that a few months or a couple of months before December 2017, is not June or July 2017, the other reporting to medical practitioners of when she said her left shoulder symptoms became noticeable or painful (namely June or July 2017 or around August 2017) was generally consistent.
True, in cross-examination, when it was suggested to Ms Nathwani whether it was possible that she told Dr Wallace that she first experienced pain in her left shoulder in July 2017, Ms Nathwani answered 'No' because the pain in her left shoulder did not start in July and that she would not say that.[112] Similarly, when Ms Nathwani was cross‑examined about the content of Dr Chafikova's clinical record dated 11 February 2019 and Dr Chafikova's workers' compensation medical certificate of the same date, that Ms Nathwani told Dr Chafikova her left shoulder pain started in August 2017, Ms Nathwani denied that she told Dr Chafikova that the pain in her left shoulder started in August 2017.[113] In the same vein, Ms Nathwani did not accept that she told Dr Dodd she started to develop pain in her left shoulder in July 2017, that the pain arose during the course of her normal duties and that her normal duties involved 'some' lifting and reaching.[114]
[112] T 2-46, ll 8-20.
[113] T 2-39, ll 24-47.
[114] T 2-44, ll 3-19.
While it is difficult to reconcile these denials with the relevant parts of the doctors' reports, my assessment is that what is recorded by those medical practitioners is generally consistent with Ms Nathwani's own evidence-in-chief and what Ms Nathwani told other medical practitioners about when she started experiencing noticeable left shoulder symptoms.
For these reasons, I do not find that Ms Nathwani's evidence about what she told the medical practitioners when she started experiencing pain symptoms in her left shoulder is so inconsistent that I should not accept her as a witness of credit for those matters.
Other issues concerning Ms Nathwani's credit
In terms of the gaps between Ms Nathwani's consulting with her General Practitioner about her left shoulder pain in 2017 and 2019, Ms Nathwani submitted that given that she was under a treatment plan arising out of discussions pertaining to the condition, the nature of her attendance '… was more consistent with a period of non-attendance rather than re-attendance' and that her failure in some of those consultations to mention work was consistent with her concerns about her losing her long service leave entitlements and the prospect of her employer reducing her hours. Ms Nathwani further submitted that it was evident she was taking every effort to manage her symptoms.[115]
[115] Ms Nathwani's submissions, para. 19.
Having regard to Exhibit 1, on 8 December 2017, Ms Nathwani first reported to Dr Chafikova that her shoulder had been sore for a few months. When Ms Nathwani then saw Dr Chafikova again on 14 December 2017, she linked that pain to her work and an ultrasound was requested. Ms Nathwani's left shoulder pain was then managed by Dr Chafikova by consultations on 19 January 2018,[116] 22 January 2018 (in respect of which physiotherapy was prescribed and risks and benefits of attending the physiotherapy sessions were explained to her,[117] but which she never attended),[118] 21 June 2018 (in respect of which an X‑ray for her left shoulder was requested),[119] 6 July 2018 (where the results of the X-ray were discussed and where the management of her condition was discussed),[120] 31 October 2018 (in respect of which acupuncture was prescribed and administered)[121] and 11 February 2019 when a workers' compensation medical certificate was issued and where, in the record of that consultation, it was noted that Ms Nathwani had had 3 cortisone injections until that time.[122] It seems to me that this evidence supports Ms Nathwani's contention that she was taking steps to manage her symptoms.
[116] Exhibit 1, page 72.
[117] Exhibit 1, pages 71-72.
[118] Exhibit 1, page 69.
[119] Exhibit 1, page 69.
[120] Exhibit 1, pages 68-69.
[121] Exhibit 1, pages 63-64.
[122] Exhibit 1, page 59.

There is no dispute that Ms Nathwani reported her left shoulder pain to her employer in July 2017.[123] Ms Nathwani's evidence was that when she reported her left shoulder symptoms to Ms Nielsen (in late July, early August 2017),[124] she was 'notified' (by Ms Nielsen it seems on the evidence)[125] that if she was to formally report her symptoms, she might not make it to her long service leave[126] and that was the reason why she did not seek any medical treatment for her left shoulder until December 2017.[127] Ms Nathwani stated in cross-examination that she told Ms Nielsen that she thought the pain in her left shoulder was due to her work.[128] Ms Nielsen was not called to give evidence to dispute Ms Nathwani's evidence.
[123] The Regulator's submissions, para. 60.
[124] T 1-25, l 44 to T 1-26, l 3.
[125] T 1-27, ll 22.
[126] T 1-27, ll 22-24.
[127] T 1-27, ll 26-31.
[128] T 2-27, ll 35-36.
While, as submitted by the Regulator, such a position being taken by Ms Nathwani's employer was inconsistent with the way her employer treated her in relation to her March 2016 right shoulder injury, given Ms Nathwani's undisputed evidence that the store manager (Ms Nielsen) made such a statement in about July 2017, then Ms Nathwani's reluctance to formally link, to her doctor, her left shoulder pain to her work until 14 December 2017 is at least understandable.
Ms Nathwani was cross-examined about the mediation that occurred in December 2017 that she described in her evidence-in-chief.[129] Ms Nathwani stated:
·the mediation occurred between her, Ms Mount and Ms Nielson;[130]
·the mediation was about:
- her workload and about how she was being treated at work; and
- her interpersonal relationship with her manager, with her specific concern that she was not being spoken to at all and about the way the managers were treating her at the time.[131]
[129] T 1-26, ll 26-38.
[130] T 2-48, ll 13-21.
[131] T 2-48, ll 23-34.
Ms Nathwani stated that there was no communication in the company, she was constantly begging for attention, she could not financially afford to lose her job and she was doing everything so she did not end up losing her job.[132] Again, that evidence is consistent with her reluctance to formally link, to her doctor, her left shoulder pain to her work.
[132] T 2-49, ll 31-41.
As submitted by the Regulator, while Ms Nathwani did not seek a workers' compensation medical certificate until February 2019, which was, as a matter of fact, after she had consulted a solicitor and sought time off work due to alleged bullying, the timing of those facts do not persuade me that she should not be believed about when her left shoulder pain started. This is because:
·there is no dispute that Ms Nathwani reported her left shoulder pain to Ms Nielsen in around July 2017,[133] which was after the time she started performing a greater amount of stock work and performing a greater frequency of reaching above shoulder height to lift down stock;
·her reasons for not wanting to pursue a workers' compensation claim through her employer were due to the concerns about her job security following what her store manager said to her about her long service leave; and
·Ms Nathwani saw her General Practitioner about her left shoulder pain on 8 December 2017, and linked that shoulder pain to her work at the consultation on 14 December 2017, which was then managed by her General Practitioner, though not on a regular basis, throughout 2018 and into early 2019.
[133] The Regulator's submissions, para. 60.
I may have formed a different view about Ms Nathwani's credit if, in the absence of the facts referred to in the paragraph immediately above, the first time she raised any issue about her left shoulder pain being work-related immediately followed her consulting a solicitor about alleged bullying. However, that is not what occurred.
The Regulator also submitted that Ms Nathwani's failure to accept that she knew, during her employment, not to stack boxes above 1.4 m high in the storeroom was contradicted by her acknowledgement that she knew the line painted on the walls were to remind staff not to stack higher than the line.[134] Ms Nathwani's evidence, in cross‑examination, was that she was not aware of the requirement to not lift above 1.4 m until well after her right shoulder injury and towards the end of her employment in 2017/2018.[135]
[134] T 2-12, ll 37-38.
[135] T 2-12, ll 1-23.
While that was a fair submission to make on the evidence given by Ms Nathwani about that topic, it does not, having regard to the reasons why I find Ms Nathwani to be a witness of credit as set out above, cause me to disregard the evidence she gave about the frequency of her lifting heavy boxes of stock above shoulder height.
The expert evidence
Dr Coleclough

Assuming that principle, as submitted by Ms Nathwani, to be sound, on the evidence, the only other issue could be Ms Nathwani's Type 2 diabetes.
For the same reasons I have given in paragraphs [121] to [138], I find that Ms Nathwani's employment as a CSA at the service station was a significant contributing factor to the adhesive capsulitis injury she suffered to her left shoulder.
Did Ms Nathwani suffer an injury within the meaning of s 32(3)(b)(iii) of the Act?
Ms Nathwani submitted that:
·if it was accepted that diabetes existed in the background of the development of the condition of adhesive capsulitis, it was '… important to consider both s. 32(3) and s.32(4)' of the Act; and
·the Act provides that a condition can fall within the terms of an injury if it can be regarded as a medical condition that became a personal injury because of an aggravation.[209]
[209] Ms Nathwani's submissions, para. 76.
Although, given my findings above, it is not necessary to consider this submission, I will, for the sake of completeness, determine this aspect of Ms Nathwani's appeal.
At the time of Ms Nathwani's injury to her left shoulder, s 32(3)(b)(iii) of the Act provided that an injury included an aggravation (if the aggravation arose out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation) of a medical condition, other than a psychiatric or psychological disorder, if the condition became a personal injury or disease because of the aggravation.
Section 32(4) of the Act provided that for s 32(3)(b), to remove any doubt, it was declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
Ms Nathwani's statement of facts and contentions merely contended that her left shoulder injury '… is one that arose in the course of her employment and her employment was a significant contributing factor in accordance with' s 32 of the Act. Ms Nathwani did not contend, in the alternative, that she suffered an injury within the meaning of s 32(3)(b)(iii) of the Act.
Despite this, the Regulator submitted that the first issue for determination was whether Ms Nathwani's condition '… or some aggravation of the condition' arose out of, or in the course of, her employment. On this basis, I will consider whether Ms Nathwani suffered an injury within the meaning of s 32(3)(b)(iii) of the Act.
Ms Nathwani submitted that:
·the Act provides that a condition can fall within the terms of an injury if it can be regarded as a medical condition that became a personal injury because of an aggravation and that the facts and history provided by her are consistent with such a finding;[210] and
·it was clear that there was a condition of diabetes subsuming any other physiological issues, however, the history of the development of her diabetes was entirely consistent with findings to the effect that her diabetes became an injury through the aggravation of the shoulder condition as a result of changes to work processes.[211]
[210] Ms Nathwani's submissions, para. 76.
[211] Ms Nathwani's submissions, para. 76.
As best as I can make out, it seems that Ms Nathwani is submitting that:
·her diabetes became an injury within the meaning of s 32(3)(b)(iii) of the Act through the aggravation of her adhesive capsulitis as a result of the changes to the work processes; and
·the aggravation arose out of, or in the course of, her employment and her employment was a significant contributing factor to the aggravation.
I cannot accept this submission. There was no medical evidence that tends to support the contention that Ms Nathwani's diabetes became a personal injury because of the aggravation of her adhesive capsulitis as a result of the changes to the work processes.
Conclusion
The issues for determination in this matter were:
·did the adhesive capsulitis injury to Ms Nathwani's left shoulder arise out of, or in the course of, her employment? and, if so
·was Ms Nathwani's employment a significant contributing factor to that injury?
For the reasons I have given, the adhesive capsulitis Ms Nathwani suffered in her left shoulder arose out of, or in the course of, her employment and her employment was a significant contributing factor to that injury.
The review decision of the Regulator should be set aside and a decision that Ms Nathwani has an injury within the meaning of the Act substituted in its place.
I will hear the parties as to costs.
Orders
I make the following orders:
1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:
(a)the review decision of the Respondent dated 29 August 2019 is set aside; and
(b)another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers'Compensation and Rehabilitation Act 2003.
2. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:

(a)the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 11 October 2021; and
(b)unless otherwise ordered, the decision on costs be determined on the papers.

[2021] QIRC 325

21 September 2021