Palmon v Woolworths Group Limited
[2022] NSWPIC 323
•23 June 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Palmon v Woolworths Group Limited [2022] NSWPIC 323 |
| APPLICANT: | Wifredo Palmon |
| RESPONDENT: | Woolworths Group Limited |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 23 June 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 resulting from injury sustained to his right shoulder in the course of his employment with the respondent and consequential injury to his left shoulder; while it is not disputed the applicant sustained injury to his right shoulder in the course of his employment with the respondent it is disputed he sustained consequential injury to his left shoulder; Held – the applicant sustained consequential injury to his left shoulder resulting from injury he sustained to his right shoulder in the course of his employment with the respondent; the applicant’s claim for permanent impairment compensation is to be remitted to the President for referral to a Medical Assessor to assess whole person impairment resulting from those injuries. |
| DETERMINATIONS MADE: | 1. The applicant sustained consequential injury to his left shoulder resulting from injury he sustained to his right shoulder on 19 February 2020 in the course of his employment with the respondent. 2. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 resulting from injury sustained to his right shoulder on 19 February 2020 in the course of his employment with the respondent and consequential injury to his left shoulder, as agreed or determined by the Commission, is remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment. 3. The following documents are to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. Application to Admit Late Documents dated 12 May 2022 and attached documents. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Wilfredo Palmon (Mr Palmon) was employed by the respondent, Woolworths Group Limited (Woolworths) as a picker and packer. Mr Palmon commenced working with Woolworths in or about 2001 and was made redundant on 7 May 2021. Mr Palmon is currently 64 years of age. Mr Palmon has not returned to any form of employment since his redundancy.
Mr Palmon made a claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) resulting from injury he sustained to his right shoulder on 19 February 2020 in the course of his employment with Woolworths and consequential injury to his left shoulder. Mr Palmon’s claim for permanent impairment compensation is declined. While it is not disputed Mr Palmon sustained injury to his right shoulder on 19 February 2020 in the course of his employment with Woolworths, the consequential injury Mr Palmon alleges he has sustained to his left shoulder is disputed. Mr Palmon was issued with a notice dated 24 January 2022 in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998[1] in which he was notified of the decision to dispute his claim for permanent impairment compensation.
[1] Application to Resolve a Dispute (ARD) at page 27.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether Mr Palmon sustained consequential injury to his left shoulder resulting from injury sustained to his right shoulder on 19 February 2020 in the course of his employment with Woolworths, and
(b) the level of whole person impairment Mr Palmon has sustained from injury sustained on 19 February 2020 in the course of his employment with Woolworths.
PROCEDURE BEFORE THE COMMISSION (the Commission)
The parties attended a teleconference on 19 May 2022. Mr Taouk, solicitor, appeared for Mr Palmon and Mr Palmon was present. Ms Dunn, solicitor, appeared for Woolworths. Mr Palmon’s claim for permanent impairment compensation did not resolve at teleconference and his claim was listed for conciliation/arbitration hearing in the Commission.
The parties attended a conciliation/arbitration hearing on 30 May 2022. Mr McEnaney of counsel appeared for Mr Palmon, instructed by Mr Taouk. Ms Warren of counsel appeared for Woolworths, instructed by Ms Saini, solicitor. Mr Palmon was present.
Following my discussions with counsel I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied the parties had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 12 May 2022 lodged on behalf of Mr Palmon (AALD) and attached documents.
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statements of Mr Palmon
Mr Palmon provided two statements. His initial statement is dated 8 October 2021[2] and his supplementary statement is dated 19 April 2022[3].
[2] ARD at page 2.
[3] ARD at page 7.
In his initial statement Mr Palmon explained that after he sustained injury to his right shoulder and right bicep on 19 February 2020 in the course of his employment, he was placed on restricted duties. While Mr Palmon said his restricted duties were not physical in nature, he explained:
“Following the subject injury, I began relying and using my left arm and shoulder to protect my right arm. As a result, I have been experiencing pain and difficulties in my left arm and shoulder.”
Mr Palmon said he currently resides with a friend called Jomer, and that it is Jomer who is primarily responsible for the household chores. Mr Palmon said:
“I try my best to help him where I can however it is not much. When I try to help, I perform the duties at a significantly slower pace. If feels as though I am just getting in the way and so, Jomer usually undertakes the household duties. Also, when undertaking these tasks, I sometimes rely on my left arm in order to protect my right shoulder from aggravation. … this has caused me to experience symptoms in my left arm and shoulder.
I have installed a low washing line so that I can lightly assist with laundry duties without needing to stretch my shoulders.
I also experience difficulties when driving. I sometimes rely on my left hand to drive in order to protect my right shoulder…
…
Jomer is solely responsible for the heavier household duties. For example, Jomer solely mows the lawn, and I am not involved in those tasks at all…
…
I am right-handed and already struggle with basic tasks such as driving, grocery shopping and laundry. Despite sometimes relying on my left hand and arm, I continue to experience difficulties.”
In his relatively recent supplementary statement Mr Palmon canvassed in some detail the problems he experienced with his left shoulder prior to the incident occurring on 19 February 2020 in the course of his employment. Mr Palmon explained he had been experiencing left shoulder pain on and off since about 2010. Mr Palmon said he complained about his symptoms to Dr Sahu at Rooty Hill Medical and Dental Centre in or about August 2015 and came to ultrasound scan of his left shoulder on or about 10 August 2015. Mr Palmon said he again complained to Dr Sahu about his “minor left shoulder pain” on or about 12 October 2015 and with Dr Sahu having advised him “that the ultrasound scan revealed a tear of the supraspinatus tendon” he was referred for physiotherapy treatment. Mr Palmon said he received physiotherapy treatment from Family Physio and Sports Injury Clinic. While Mr Palmon returned to consult with Dr Sahu again on or about 4 January 2016 about his left shoulder “minor pain”, he said:
“After attending physiotherapy, the pain in my left shoulder settled. I no longer felt pain and did not suffer any difficulties or disabilities.
As such, I did not complain of pain and stopped seeking treatment.
I was asymptomatic and free from pain at the time of my workplace incident on 19 February 2020”.
Mr Palmon again explained so as to prevent aggravation of the injury he had sustained to his right shoulder, he “began to prefer and favour my left arm to undertake my activities of daily living”. He said:
“For example, I would often rely on my left arm to drive when travelling outside of my home. When I undertook tasks that required lifting such as grocery shopping, I would favour and prefer to use my left arm by carrying and holding grocery bags with my left hand.
I would also use my left arm to undertake laundry duties such as lifting clothes, hanging clothes, and getting clothes out of the washing machine.
I would also rely on my left arm when showering and cleaning.’
Mr Palmon said on or about 28 July 2021 he complained of his symptoms in his left shoulder to his physiotherapist and received physiotherapy treatment. He also said he complained to Dr Sahu of his symptoms in his left shoulder, who recommended analgesic medication and physiotherapy treatment. Despite this recommended medical management, Mr Palmon said he continued to suffer from left shoulder pain. Dr Palmon said Dr Sahu told him:
“…the cause of my left shoulder symptoms was due to overuse as a way to compensate for my right shoulder limitations and difficulties.”
Treating medical evidence
Diagnostic imaging
An ultrasound of the left shoulder report dated 10 August 2015[4] is in evidence, with findings:
“The long head of biceps tendon appeared to be intact. There was a fairly extensive full thickness tear in the supraspinatus tendon insertion extending over 1.2 x 1.1cm, some retraction, some atrophy, some thickening of the subacromial bursa, some bunching in abduction. Infraspinatus and teres minor tendons appeared to be intact, a little thickening noted around the AC joint”.
[4] ARD at page 76.
An ultrasound guided left shoulder report dated 11 January 2016[5] is in evidence. It relevantly notes:
“Under ultrasound guidance and using aseptic technique, a 25 gauge needle was inserted into the left subacromial bursa.
A mixture of 1ml Ceestone, 2ml Bupivacaine and 2ml Lignocaine was injected.
The patient tolerated the procedure well without immediate post-procedure complication”.
[5] ARD at page 72.
An ultrasound of the left shoulder report dated 3 May 2022[6] is in evidence, with reported conclusion:
“Full thickness tear involving the anterior and middle fibres of the supraspinatus. Background tendinosis of the supraspinatus and subscapularis, Subdeltoid bursitis with impingement.”
Rooty Hill Medical and Dental Centre
[6] AALD at page 2.
Mr Palmon has been under the general medical care of the doctors who practise out of Rooty Hill Medical and Dental Centre for many years. The clinical records of the medical centre[7] are in evidence.
[7] ARD commencing at page 78.
Mr Palmon consulted with Dr Guo on 3 August 2015, at which time Dr Guo noted “left shoulder pain for 5 years, requesting physio, no injury history” and referred Mr Palmon for ultrasound of his left shoulder. On review on 15 October 2015, Dr Sahu noted Mr Palmon had ongoing shoulder pain and noted diagnostic imaging demonstrated partial tear of supraspinatus tendon. Dr Sahu referred Mr Palmon for physiotherapy treatment. When Mr Palmon re-presented on 4 January 2016 with complaint of ongoing left shoulder pain Dr Sahu referred him for ultrasound guided cortisone injection.
While it is evident from the clinical records that Mr Palmon subsequently sustained injury to his right shoulder on 19 February 2020 which significantly troubled him (so much so that he came to surgical treatment on 25 June 2020 under the care of Dr Duckworth) there is no complaint by Mr Palmon regarding his left shoulder troubling him after he came to the ultrasound guided injection on 11 January 2016.
Toongabbie Family Practice
As noted, Mr Palmon has come under the general medical care of Dr Sahu, who now practises out of Toongabbie Family Practice. Dr Sahu provided a report dated 20 March 2022[8] in response to a request for one from Mr Palmon’s solicitors. Following review of the report of Dr Dryson dated 24 November 2021, the Ultrasound Guided Left Shoulder Injection report dated 11 January 2016, the clinical records of Rooty Hill Medical and Dental Centre and the clinical records of Family Physio and Sports Injury Clinic, in response to specific questioning Dr Sahu wrote:
“As per information gathered from patient’s notes, yes I agree Mr Palmon’s left shoulder range of movement decreased to 110 degrees in 2021, from 150 degrees in 2015 (as per assessment report provided by physiotherapist Ann-Maree Chick). Yes it is possible that Mr Palmon’s left shoulder may have been aggravated due to him favouring his left shoulder in view of pain in his Right Shoulder.
Yes as per notes (03/08/2015), Yes range of movement of left shoulder was normal as there was no restricted range of movement.
Yes Mr Palmon complained of pain at 150 degrees of abduction (refer to report from physiotherapist on 10 November 2015).”
[8] ARD at page 50.
Dr Sahu issued several Certificates of Capacity relevant to the injury Mr Palmon sustained on 19 February 2020. It is evident from these certificates Mr Palmon complained on 16 August 2021 about left shoulder pain as in several the certificates issued by Dr Sahu, he has relevantly provided comment:
“16/08/21: Pain in right shoulder is ongoing, but also his left shoulder is hurting, appears that he is compensating for right shoulder”.
Family Physio and Sports Injury Clinic
Mr Palmon came under the care of Family Physio and Sports Injury Clinic for physiotherapy treatment. Ms Chick’s report dated 10 November 2015[9] is in evidence. Ms Chick said Mr Palmon presented on 9 November 2015 for physiotherapy treatment for “left supraspinatus tear and deltoid tightness”. She described Mr Palmon as “well known to the clinic”. Ms Chick wrote:
“On initial assessment he reported about 1 month history of left deltoid region pain after lifting something. He reported having had an injection already which helped for the left shoulder joint area but not for the deltoid region pain. On examination he reported pain at 150-degree abduction. Empty can test was positive for rotator cuff deficiency. There was tightness in the deltoid region.
Treatment has consisted of manual therapy (mobilisations, soft tissue techniques), heat and commencement of a home exercise program (strengthening).”
Physio Inq
[9] ARD at page 176.
In more recent times Mr Palmon has come under the care of Physio Inq for treatment. His initial consultation was on 17 May 2021. The clinical records of the physiotherapy practice as at 10 March 2022[10] are in evidence. At consultation on 28 July 2021 Mr Palmon’s treating physiotherapist, Peter Varun George, relevantly reported:
“concerned about L shoulder pain – wakes up with it d/t sleeping on the shoulder; wondering if he has damage to L shoulder.
+ pain into L shoulder sleeping on it more often.”
[10] ARD commencing at page 177.
At consultations on 6 August 2021 and 11 August 2021 Mr George reported notes included “nil issues with L shoulder” and there is no further mention of Mr Palmon’s left shoulder after 11 August 2021.
Dr Duckworth
Mr Palmon came under the orthopaedic care of Dr Duckworth. The clinical records of Dr Duckworth as at 18 August 2021[11] are in evidence. It is apparent Mr Palmon was under the care of Dr Duckworth between 26 March 2020 and 8 June 2021. Mr Palmon came to “arthroscopy of right shoulder, exploration of biceps, biceps tenodesis and repair of subscapularis” on 25 June 2020 under Dr Duckworth’s care. Dr Duckworth reported at the time he discharged Mr Palmon for his care:
“… I have recommended ongoing physiotherapy and time.
I only need to see him again in the future if he has any problems”.
[11] ARD commencing at page 51.
There is no reported complaint of left shoulder symptoms made by Mr Palmon during his consultations with Dr Duckworth, as Mr Palmon’s left shoulder does not appear to have become symptomatic until after was discharged from Dr Duckworth’s care.
Independent medical evidence
Dr Dryson
Mr Palmon was initially assessed by Dr Dryson on 25 August 2021, with assessment conducted by Telehealth. Dr Dryson provided a report dated 8 September 2021[12]. Dr Dryson provided a consistent history of Mr Palmon sustaining injury to his right shoulder on 19 February 2020 in the course of his employment. Dr Dryson provided a consistent history of treatment under the care of Dr Sahu and Dr Duckworth. Dr Dryson reported of Mr Palmon’s symptoms:
“Mr Palmon is reporting decreased range of movement in the right shoulder and discomfort on using the shoulder. He has reduced strength in the right arm and can drop objects that he is holding in his right hand.
His left shoulder is generally okay but occasionally he can experience pain in the shoulder, secondary he believes to overuse of that shoulder while protecting the right shoulder.”
[12] ARD at page 31.
Dr Dryson noted at that time Mr Palmon was living alone. He described Mr Palmon as able to attend to his household chores “but takes it slowly”. He said of Mr Palmon:
“He is able to drive but can only manage 5-10 minutes at a time. He is able to do his groceries and can carry the grocery bags but on the right limits it to no more than about 5 kg. He is able to do his laundry and can hang out the washing slowly. He has installed a low washing line, so that he does not need to stretch at the shoulders. A friend is doing his lawns”.
Dr Dryson provided opinion Mr Palmon suffered “significant impairment of the right shoulder”. He said Mr Palmon was “clearly unable to undertake any work activities above light physical demand” and cautioned even sedentary-type activities are likely to be limited by the pain Mr Palmon suffered in his right shoulder.
Mr Palmon was re-assessed by Dr Dryson on 17 November 2021, with assessment again conducted by Telehealth. Dr Dryson provided a report dated 24 November 2021[13]. Dr Dryson noted “the main purpose of this re-assessment is for me to take into account Mr Palmon’s left shoulder consequential injury”. Dr Dryson reported Mr Palmon told him:
“…he began to experience problems with his left shoulder, a few months after the right shoulder injury. Left shoulder pain extended up into the neck. He states that no scans or X-rays have been taken in respect of the left shoulder”.
[13] ARD at page 37.
Dr Dryson reported of Mr Palmon’s symptoms:
“… he continues to have pain, weakness and reduced range of movement in both shoulders”
Dr Dryson provided diagnoses of injury, which included “painful restricted range of movement in the left shoulder – consequential injury” and in response to specific questioning he said:
“It is clear that Mr Palmon is experiencing pain in the left shoulder and, on examination, there is loss of range of movement in the left shoulder. No imaging studies of the left shoulder have been carried out and the precise pathology causing impairment is not known, but it is clear that there is an impairment.
I agree that it is likely that Mr Palmon has sustained a consequential injury, through using the left shoulder preferentially, because of the injury to the right shoulder. But for the subject accident and the right shoulder injury, Mr Palmon would not have suffered a left shoulder condition.”
In a supplementary report dated 11 March 2022[14] Dr Dryson confirmed his opinion remained unchanged following review of the reports prepared by Dr Gothelf referred below. Dr Dryson reiterated that while noting a history of left shoulder impairment going back to August 2015 and an ultrasound scan demonstrating a partial tear of supraspinatus, Mr Palmon had not complained of left shoulder pain since January 2016 until he “experienced left shoulder pain again, attributed by him as due to overuse because of the limitations of his right shoulder”. Dr Dryson conceded that without radiological investigation it was not possible to be precise but said “it is likely that he has developed rotator cuff tendinosis as a consequence of overuse.”
[14] ARD at page 42.
Asked to provide comment on the reports of Dr Gothelf, Dr Dryson said:
“I have read these reports. The main issue is contained in his report of 14 January 2022, where he opines that the left shoulder condition was not caused by the workplace injury on 19 February 2020 (see Page 8). I note that Dr Gothelf states that Mr Palmon’s left shoulder pain started ‘three months ago' ie three months before his assessment on 6 January 2022. By contrast, Mr Palmon told me that the left shoulder symptoms had commenced ‘a few months after the right shoulder injury’, ie in about mid-2020. In fact, the length of time is not particularly important, since an overuse injury may take time to develop. Dr Gothelf further states that Mr Palmon was made redundant in May 2021 and had not worked since then, and stated the left shoulder symptoms started after he was made redundant (although the dating of the onset of left shoulder symptoms is under dispute, as I already noted). Even so, for a consequential injury to be identified, it is not necessary that the overuse take place at work, it could equally be overuse due to activities of daily living. I do not, therefore, agree with Dr Gothelf’s reasons for discounting the left shoulder symptoms as a consequential injury.
Dr Gothelf
Mr Palmon was initially assessed by Dr Gothelf on 20 May 2020. Dr Gothelf provided a report dated 26 May 2020[15]. Dr Gothelf reported a consistent history of injury occurring on 19 February 2020 and subsequent treatment. Dr Gothelf examined both shoulders during assessment but only provided comment relevant to Mr Palmon’s injured right shoulder. While Dr Gothelf recorded no left shoulder complaint by Mr Palmon on this occasion, Dr Gothelf was sufficiently concerned about Mr Palmon’s injured right shoulder that he recommended Mr Palmon return for review with Dr Duckworth to consider surgical treatment. He said “Mr Palmon has persistent right shoulder pain and dysfunction despite non-operative treatments” and said of the anticipated surgical treatment:
“Surgery would likely involve an overnight stay in hospital, six weeks in a sling and a six month rehabilitation program. Return to light duties work with no use of the right arm can commence at two weeks. Driving a car can commence at six weeks. Return to full duties without restrictions would be no earlier than six months”.
[15] Reply at page 14.
Mr Palmon was re-assessed by Dr Gothelf on 1 January 2022. Dr Gothelf provided a report dated 14 January 2022[16]. On this occasion Dr Gothelf noted that after Mr Palmon sustained injury to his right shoulder on 19 February 2020 he had been placed on suitable duties, which included “no lifting with the right arm”. Dr Gothelf noted Mr Palmon had come to surgical treatment and returned to suitable duties two weeks after surgery. Dr Gothelf noted Mr Palmon was subsequently made redundant on 7 May 2021 and had not secured further employment.
[16] Reply at page 1.
Although Dr Gothelf recorded Mr Palmon told him “he never had a problem with the right shoulder or left shoulder prior to the subject injury on 19 February 2020”, he noted the medical notes of Rooty Hill Medical and Dental Centre included complaint, investigation and treatment of both Mr Palmon’s right shoulder and left shoulder. When “asked about the left shoulder” since the incident occurring on 19 February 2020, Dr Gothelf reported Mr Palmon said:
“…his neck and left shoulder started to become painful about three months ago. He had no injury that occurred. He takes Panadol for the pain. He mentioned the pain to the doctor and no investigations were done”.
Dr Gothelf reported Mr Palmon rated his left shoulder pain “eight out of ten. The pain is constant and worse with movement of the shoulder” and relevant to physical examination of his left shoulder, Dr Gothelf reported:
“The left shoulder has restricted passive motion with guarding on all movements and an inability to move the shoulder overhead. There was free external rotation without blockage with the arm at the side. Rotator cuff strength testing was normal. The shoulder was limited in movements across the body”.
Dr Gothelf said the condition Mr Palmon suffered in his left shoulder was not consequential on his right shoulder injury. He provided diagnosis and opinion which included:
“Right shoulder acute biceps subluxation and subscapularis split tear. The MRI right shoulder 27 March 2020 revealed intrasubstance tear of the subscapularis tendon with subluxation of the long head of biceps tendon. Wilfred underwent surgery 25 June 2020 by Dr Duckworth, Orthopaedic Surgeon, for a right shoulder arthroscopy, biceps tenodesis and subscapularis repair. Wilfred underwent further cortisone injections after surgery. Wilfred reported persistent pain and restriction of movement of the right shoulder. The physical examination revealed a restriction of active motion.
…
Left shoulder impingement syndrome … The following reasons support the conclusion that the left shoulder condition was not caused by the subject injury 19 February 2020:
·There was evidence of a pre-existing left shoulder condition. Medical notes from January 2016 indicated left shoulder pain. Wilfred underwent physiotherapy and a cortisone injection was discussed.
…
·There was no history of incident that caused left shoulder pain.
·Mr Palmon indicated that the left shoulder pain started three months ago over 1.5 years from the subject injury. It is unlikely that the left shoulder condition had any causal relationship with the subject injury.
·Mr Palmon stated that since the subject injury he worked light duties. Mr Palmon was made redundant since May 2021 and has not worked since then. The left shoulder symptoms therefore started after Mr Palmon was made redundant. The argument that the left shoulder was under increased stress due to the right shoulder condition is not supported by this work history, where the left shoulder would have likely experienced less of a workload rather than an increased workload.”
Submissions
Ms Warren and Mr McEnaney made oral submissions, which I have carefully considered. I am grateful to counsel for the assistance provided to me in this matter. A recording of counsels’ submissions is available to the parties.
Determination
Consequential injury to the left shoulder
Liability is not disputed for the injury Mr Palmon sustained to his right shoulder on 19 February 2020 in the course of his employment with Woolworths. However, liability is disputed for the consequential injury Mr Palmon alleges he sustained to his left shoulder.
Mr Palmon has the onus of proving he sustained consequential injury to left shoulder as a result of the injury he sustained to his right shoulder on 19 February 2020 in the course of his employment. This is a question of fact and consideration of the factual evidence and medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Limited[17] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[17] [2008] NSWCA 246 (Nguyen).
With allegation by Mr Palmon that the injury he has sustained to his left shoulder is a consequential injury, in Trustees of the Roman Catholic Church for the Dioceses of Paramatta v Brennan[18] Deputy President Snell relevantly discussed consequential injury and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in several decisions, for example Moon V Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012] NSWWCCP 8. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within the meaning of s 4 of the 1987 Act”.
[18] [2016] NSWWCCPD23.
In the circumstances of this matter, it is important to recognise the injury Mr Palmon sustained to his right shoulder in the course of his employment s may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential injury to his left shoulder. Relevant to this issue of causation of the consequential injury Mr Palmon alleges he sustained to his left shoulder, in Kooragang v Cement Pty Ltd v Bates[19] Kirby J said:
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate case by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.”
[19] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
Mr Palmon said that after he sustained injury on 19 February 2020 he was placed on restricted duties. He said that while his restricted duties were not physical in nature, he began favouring his left arm and shoulder and as a result his left arm and shoulder became symptomatic. Mr Palmon accepted he had experienced pain in his left shoulder since about 2010, with complaint to Dr Sahu of “minor” left shoulder pain in 2015 and early 2016. He accepted too that Dr Sahu referred him for diagnostic imaging (which revealed a tear in the supraspinatus tendon), physiotherapy treatment and ultrasound guided injection, but explained that following this medical management he sought no further treatment as his symptoms had resolved. Mr Palmon provided examples of his favouring of his left arm with reference to driving, grocery shopping, laundering, showering, and cleaning, but also said that the friend with who he now resides is “primarily responsible for the household chores”. Mr Palmon said he mentioned his left shoulder symptoms to his treating physiotherapist in late July 2021 and he said he also made complaint of his left shoulder symptoms to Dr Sahu who recommended analgesic medication and physiotherapy treatment.
Mr George’s clinical records demonstrate Mr Palmon made complaint of left shoulder pain to him on 28 July 2021, and while it is not evident from Dr Sahu’s clinical records that Mr Palmon made complaint to him about his left shoulder symptoms, such complaint on 16 August 2021 (and subsequently) is reflected in the Certificates of Capacity Dr Sahu issued. In response to specific questioning too about Mr Palmon’s left shoulder, Dr Sahu accepted there had been a decrease in range of movement in the shoulder in 2021 when compared to range in movement in 2015 and said “it was possible” Mr Palmon’s left shoulder may have been aggravated due to him favouring his left shoulder as a result of his right shoulder injury.
Following assessment on 25 August 2021 Dr Dryson noted Mr Palmon’s right shoulder remained significantly problematic and noted too Mr Palmon occasionally experienced pain in his left shoulder, which he reported Mr Palmon thought was a result of him favouring his left arm.
Following a review of the evidence as a whole and careful consideration of submissions made by both counsels, I am of the view Mr Palmon has provided a consistent history of injury occurring on 19 February 2020 in the course of his employment and sequelae. With Dr Dryson having noted Mr Palmon’s complaint of left shoulder pain at initial assessment (which was principally for the purpose of assessment of his right shoulder injury), Mr Palmon was sensibly re-assessed by Dr Dryson on 17 November 2021. Dr Dryson noted on that occasion Mr Palmon’s left shoulder remained symptomatic and provided opinion Mr Palmon had sustained consequential injury to his left shoulder as a result of favouring due to his right shoulder injury. Dr Dryson remained of this view following reasoned consideration of opinion provided by Dr Gothelf who did not accept Mr Palmon had sustained consequential injury to his left shoulder, principally because of the delay in the onset of the left shoulder symptoms and the fact Mr Palmon had ceased work at the time his left shoulder became symptomatic.
I prefer the opinion offered by Dr Dryson to that of Dr Gothelf because Dr Dryson has been provided with the opportunity to review and provide comment on this contrary opinion provided by Dr Gothelf and Dr Dryson’s opinion is supported by Mr Palmon’s long-term treating general practitioner, Dr Sahu.
I am satisfied Mr Palmon has discharged the onus of proof required of him and I am satisfied Mr Palmon has sustained consequential injury to his left shoulder as a result of the injury he sustained to his right shoulder on 19 February 2020 in the course of his employment with Woolworths.
Permanent impairment
Liability is not disputed for the injury Mr Palmon sustained to his right shoulder on 19 February 2020 in the course of his employment with Woolworths and I have determined he has sustained consequential injury to his left shoulder resulting from that injury.
It is appropriate Mr Palmon’s claim for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury he sustained to his right shoulder on 19 February 2020 in the course of his employment with Woolworths and consequential injury to his left shoulder be remitted to the President for referral to a Medial Assessor for assessment of whole person impairment.
I consider it appropriate the following documents be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) AALD and attached documents.
SUMMARY
It is not disputed Mr Palmon sustained injury to his right shoulder on 19 February 2020 in the course of his employment with Woolworths and I have determined he has sustained consequential injury to his left shoulder resulting from that injury.
It is appropriate Mr Palmon’s claim for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury he sustained to his right shoulder on 19 February 2020 in the course of his employment with Woolworths and consequential injury to his left shoulder be remitted to the President for referral to a Medial Assessor for assessment of whole person impairment.
The following documents are to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons:
(a) ARD and attached documents;
(b) Reply and attached documents, and
(c) AALD and attached documents.
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