Powell v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 30
•12 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Powell v Simon Blackwood (Workers' Compensation | ||||
| Regulator) [2014] QIRC 030 | |||||
| PARTIES: | Raymond Powell | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2012/54 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 12 February 2014 | ||||
| HEARING DATES: | 18 and19 March 2013 | ||||
| 5 April 2013 (Respondent's written submissions) 12 April 2013 (Appellant's written submissions) 19 April 2013 (Respondent's written submissions in reply) | |||||
| MEMBER: | Industrial Commissioner Knight | ||||
| ORDERS : |
|
February 2012 is confirmed; and
3. the Appellant pay the Respondent's costs of and incidental to this appeal to be agreed, or failing agreement, to be the subject of a further application to the Commission.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Whether worker suffered an "injury" - Whether injury arose out of, or in the course of, his employment - Whether worker's employment was a significant contributing factor to the right shoulder injury - Legislation s. 32(1) and (3)(b) - Worker bears onus of proof - Balance of probabilities - Conflicting medical evidence - Previously accepted neck injury - Found worker has not established on the balance of probabilities that injury arose out of, |
| or in the course of, employment or that employment | |
| was a significant contributing factor to the injury - Appeal dismissed. | |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003, s 32(1), s 32(3)(b), s 550 | |
| APPEARANCES: | Mr G. Cross, Counsel instructed by Everingham Lawyers for the Appellant. Ms J. McClymont, Counsel directly instructed by Simon Blackwood (Workers' Compensation Regulator), Respondent. |
[1] This is an appeal by Mr Raymond Powell (the "Appellant" / "Mr Powell") pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against the decision of the Workers' Compensation Regulator, formerly known as Q-COMP, which was issued on 6 February 2012. The decision of the Regulator confirmed an earlier decision of WorkCover Queensland (WorkCover) not to accept the Appellant's claim for compensation, contending he did not sustain an injury in accordance with s 32 of the Act.
[2] The key issue for determination in this appeal is whether the Appellant suffered a personal "injury" namely an injury to his right shoulder within the meaning of s 32 of the Act.
[3] Since the hearing of this matter, the Act has been amended with Q-COMP being abolished and replaced with Simon Blackwood (Workers' Compensation Regulator). Thus the Respondent will be the "Regulator".
Brief Overview and History of the Appellant's Claim for Compensation
[4] Mr Powell is claiming compensation for a right shoulder injury which he says occurred on 20 November 2010 during his employment as a Dairy Farm Manager.
[5] The Appellant initially lodged an application for a cervical spine/neck injury on 23 November 2010. WorkCover accepted the claim for pre-existing degenerative changes in the cervical spine. On 20 April 2011 Mr Powell underwent an operation for a fusion of the C4/5, 5/6 and 6/7 levels of his spine.
[6] Ten months later Mr Powell was diagnosed with some right shoulder pathology which he subsequently sought to have accepted as a work related injury arising out of the initial 20 November 2010 incident, which had occurred approximately ten months earlier.
[7] Following an investigation, WorkCover rejected the claim for a right shoulder injury which was communicated through a Statement of Reasons letter dated 12 December 2011.
[8] The Appellant subsequently lodged an Application for Claim Review dated 21 December 2011 (Exhibit 3).
[9] The Regulator provided its Reasons for Decision dated 6 February 2012 (Exhibit 4) which confirmed WorkCover's decision and indicated the Appellant did not suffer an injury to his right shoulder within the meaning of that term in s 32 of the Act. It is against the decision of the Regulator that the Appellant appeals.
Standard of Proof
[10] For the appeal to succeed the Appellant must prove on the balance of probabilities:
he suffered an injury, being an injury to his right shoulder; the injury arose out of, or in the course of, his employment as a Dairy Farm
Manager; and
the Appellant's employment was a significant contributing factor to the injury. Relevant Statutory Provisions
[11] "32 Meaning of Injury
(1) An injury is personal injury arising out of, or in the course of, employment if
the employment is a significant contributing factor to the injury.
…
(3) Injury includes the following -
...
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation -
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease
because of the aggravation;".
Nature of Hearing
[12] The appeals to the Commission are by way of a hearing de novo.
Witnesses
[13] Witnesses for the Appellant were:
Raymond Powell
Dr Michael Bryant (neurosurgeon)
Dr Pritpal Bansi (orthopaedic surgeon) Mr Roger Kahler (mechanical engineer) [14] Witnesses for the Respondent were:
Dr Michael Thorpe (general practitioner) Dr Richard Gibberd (orthopaedic surgeon) Dr Rupert Atkinson (neurosurgeon and pain medicine specialist) The Evidence
[15] As at 20 November 2010 the Appellant was employed as a Dairy Manager at Glenore Grove.
[16] WorkCover previously accepted a claim for a neck injury Mr Powell suffered on 20 November 2010. At the time of the injury, he was ascending some stairs leading out of a milking pit whilst holding a bucket of milk in each hand. The milk in the buckets was unable to be sold to the general public as it came from cows that had contracted mastitis.
[17] As a consequence of the neck injury which occurred on 20 November 2010 Mr Powell underwent surgery for a C4/5, C5/6 and C6/7 fusion in or around April 2011.
[18] Relying on a diagram which he said depicted the layout of the milking shed area (Exhibit 7) Mr Powell explained to the Commission that when a milking cow was infected with mastitis part of the milk line would be disconnected and re-directed to a test bucket where the milk from the infected cow would be caught.
[19] The milk in the test bucket would then be transferred manually to one of two 20 litre old detergent buckets at the front of the milking pit.
[20] Mr Powell's evidence was the milk in the (detergent) buckets would then be fed to the calves located in a holding yard above the milking pit. The Appellant confirmed the buckets would generally be taken to the calves when they were full.
[21] In order to place the buckets where the calves could access the milk the Appellant confirmed he was required to climb three or four (he was not sure) stairs and then duck underneath a loop in the milk line whilst still holding two full buckets in his hands.
[22] The Appellant's evidence was that in order to be able to place each bucket through the narrow opening at the top of the stairs above the milking pit he would swing his right elbow up to the height of his shoulder (whilst still holding a bucket in each hand) to allow him to gain some momentum which then allowed him to propel the second bucket forward as he moved his body up the stairs in a crab-like manner.
[23] Mr John Kahler, a registered professional engineer and a member of the Human Factors and Ergonomic Society of Australia indicated the progressively narrowing entry at the top of the stairs in the dairy was designed to "prevent a cow from being able to enter down into the pit but have sufficient space to put their head through the entrance."
[24] Mr Kahler's evidence, including his written report (Exhibit 5(16)) on the burden of injury was based on an interview with Mr Powell on 2 April 2012 and further subsequent discussions during which the Appellant described the manner in which he would ascended the stairs to the holding yard to drop off the discarded infected milk for the calves.
[25] In Mr Kahler's report (Exhibit 5(16)) he wrote:
"...as an operator moves up the stairs carrying the 2 * 20 litre buckets, they have to flex to bend under the trap of a milk line, they have to turn sideways to get through the narrow portion of the stairs at the top and they have to abduct or raise one arm to stop the bucket from hitting the stair tread as they move in a crab-like fashion up the stairs."
[26] Based on his discussions with the Appellant, Mr Kahler explained to the Commission how the milk line in the pit, due to its design and location, resulted in an operator being required to ascend the steps with a more side-on approach.
[27] The Appellant gave evidence about the way he would ordinarily ascend the stairs and manoeuvre his body (including his arms) when he was dropping off the milk, but under cross examination was unable to specifically recall, if on the day he had injured his neck, he had lifted his right arm in the manner he had described to the Commission.
[28] Based on Mr Powell's description, Mr Kahler's report (Exhibit 5(16)) indicated the riser height on the stairway may well have exceeded the applicable standard height with respect to AS1657 which he said could have resulted in increased body stress, particularly for an operator's arm and shoulder on the uphill side of the stairway.
[29] Mr Kahler confirmed his assumptions in relation to the riser height were largely based on his discussions with the Appellant and indicated an inspection of the dairy would be required to confirm this aspect of his report.
[30] Mr Kahler's evidence was that the manner in which the buckets were placed into the holding yard in order to feed the calves was an unsafe process in that it:
"...overstresses the right shoulder and it overstresses the rotator cuff in particular
because that's the muscle group that's involved and the posture he had to adopt."[31] Further evidence provided by Mr Kahler suggested the weight in the buckets would have needed to be halved in order for the manoeuvre to be safe for up to 80 percent of the population.
[32] Under cross-examination, Mr Kahler agreed with the suggestion that his assessment of the overload on a person's arm was dependent upon the extent of the abduction as described by the Appellant and further, if the staircase had been shallower or not as steep as described by the Appellant, then the extent to which the arm would need to be abducted was questionable.
[33] The Appellant's evidence was he recalled hearing a "bang" sound and feeling pain in his neck as well as his right shoulder as he ascended the stairs on the day of his accepted neck injury, confirming he recalled the pain in his neck area commenced from the back of his head at the mid-point between his ears and down to the middle of his back.
[34] Mr Powell pointed to the front and top of his right shoulder, down his right arm and his shoulder confirming these were the areas where the pain was also located on the day of the neck injury. The Appellant described the pain as:
"it was just, like, aching down me shoulder, in the back of the arm and I had pins
and needles in the two left - little finger and the next one."[35] Under cross-examination Mr Powell confirmed the pain he described, including the pain in his fingers, had been constant since the injury and all the way through to the date of hearing, however he indicated medication did have an impact on the extent of his pain from time to time.
[36] The Appellant confirmed he stopped work on the day of the accepted neck injury and attended the Ipswich Hospital where the hospital staff took an x-ray and provided him with some pain killers.
[37] When the pain continued Mr Powell made an appointment to see General Practitioner, Dr Michael Thorpe, on 22 November 2010 where he was prescribed Panadeine Forte and referred to a physiotherapist who he visited on 23 November 2010.
[38] The Appellant also attended consultations with Dr Thorpe on 26 November 2010, 3 December 2010, 10 December 2010, 7 March 2011 and 11 March 2011.
[39] Dr Michael Thorpe's notes for Mr Powell's appointment of 22 November 2010 are recorded as:
"lifting at work 40kg + 2 buckets
Neck pain, with arm radiation (settled now)
Had an Xray at IGH ... no abnormality detected
Examination
restricted flexion
DTR intact
Reason for contact:
Neck pain".
[40] Under cross-examination the Appellant confirmed he also saw a physiotherapist on 23 November 2010.
[41] By consent, the records (both handwritten and a typed interpretation) of notes prepared by Ms Marina Crichton, a physiotherapist based in Gatton, were tendered (Exhibits 12, 12(a) and (b)). The records contained detailed notes in relation to the Appellant's neck injury, symptoms, any associated pain and treatment, however they contained limited references, other than "tight and active trigger points in the right levator scapulae muscle", to any shoulder pain or restriction of arm movement.
[42] The Appellant visited Dr Michael Thorpe again on 26 November 2010 for a follow- up consultation.
[43] Dr Michael Thorpe's notes for Mr Powell's appointment on this date are recorded as: "significant improving with physio, no radiation Examination: Good range of movement painfree Upper arm movement good".
[44] The Appellant disagreed with the accuracy of Dr Thorpe's notes on 26 November 2010 stating he was not pain free with respect to his right shoulder. Instead, Mr Powell stated he was experiencing pain in both his neck and shoulder (my emphasis).
[45] Whilst he was unable to recall which arm he was referring to, Dr Thorpe interpreted his notes to mean that at the time he saw Mr Powell he had formed a view the Appellant's neck pain was persisting, but that any previously reported arm pain had settled.
[46] Dr Thorpe confirmed his normal practice examination for injuries such as those reported by the Appellant included abduction and adduction exercises which tested movement of the arm as it moved to the side, front and back of the body.
[47] Dr Thorpe interpreted the notes he had retained in relation to his examination of Appellant on 26 November 2010 as:
"...significant improving - improvement in his symptoms following physiotherapy, there was still no radiation to his arm, examination suggested a good range of movement and I again, I'm guessing this is in his neck, which was pain free, and he had a reasonable range of movement in his upper arm."
[48] Under cross-examination Mr Powell accepted he would have been asked by Dr Thorpe to demonstrate the movement in his neck and shoulder on the day.
[49] Dr Thorpe agreed with the proposition the pain medication he had prescribed the Appellant may well have reduced any pain the Appellant might have otherwise reported at the follow-up consultation on 26 November 2010.
[50] When presented with Ms Crichton's neck disability index, Dr Thorpe's view under cross-examination was the pain associated with the Appellant's injury as indicated in the physiotherapist's notes suggested it was on the mild end of the scale at the time of the examination.
[51] Dr Thorpe's notes for Mr Powell's next appointment on 3 December 2010 were recorded as:
"? deteriorated again
No aggravation
Reason for contact:
Neck pain with referred arm pain".
[52] Mr Powell confirmed he was subsequently referred to Dr Michael Bryant, a neurosurgeon who initially treated the Appellant with a cortisone injection and later performed a C4/5, C5/6 and C6/7 in or around late April 2011.
[53] Notwithstanding the operation, the Appellant's evidence was he still continued to experienced both neck and shoulder pain before and after the operation.
[54] A subsequent MRI report (Exhibit 8) requested by Dr Bryant in or around August 2011 confirmed mild tendinosis, a fraying or small partial tear in the subscapularis tendon and mild AC joint arthrosis.
[55] He subsequently referred the Appellant to Dr Bansi, an orthopaedic surgeon who initially treated his shoulder with a cortisone injection but later recommended shoulder surgery which did not take place after Mr Powell's claim for a shoulder injury was not accepted by WorkCover.
Expert Medical Evidence
[56] Dr Michael Bryant, a neurosurgeon, treated the Appellant for his original neck injury from December 2010 until on or around October 2011.
[57] Following a number of root nerve injections in early 2011, Dr Bryant performed a fusion operation on the C4/5, C5/6 and C6/7 levels of the Appellant's spine.
[58] In his report of 22 December 2010 (Exhibit 5(1)) around the time the Appellant injured his neck, Dr Bryant recorded:
"Raymond described a lot of pains down his right arm."
[59] Under cross-examination, Dr Bryant confirmed a fairly typical distribution of C7 pain included "pain in between the shoulder blades in the back, pain down the back of the arm in the region of the triceps, in the back of the forearm, and some tingling in the fingers." (D1, P70, L20-30).
[60] In his brief report to Dr Thorpe of 15 July 2011 (Exhibit 5(9)), which was prepared after the fusion operation on the C4/5, C5/6 and C6/7 levels of the Appellant's spine, Dr Bryant recorded Mr Powell complaining of aches and pain in his neck and over the tops of his shoulders.
[61] Later correspondence to WorkCover on 14 September 2011(Exhibit 5(11)) from Dr Bryant noted:
"ongoing arm pains which may be from direct shoulder pathology. An
orthopaedic review may be necessary."[62] Under cross-examination, Dr Bryant confirmed Mr Powell did not complain of pain down his right shoulder or right arm in his first consultation and was unable to say whether the Appellant's report of pain across the tops of both shoulders on 15 July 2011 should have been recorded in his notes as pain as just in his right shoulder.
[63] Dr Byrant's evidence was that he was not aware of any history of the Appellant experiencing neck or right shoulder problems prior to the injury of 20 November 2010. He subsequently sought the opinion of upper limb specialist orthopaedic surgeon Dr Bansi in late 2011.
Right shoulder injury
[64] In his initial comments to WorkCover dated 14 November 2011 (Exhibit 5(14)) Dr Bansi noted:
"it is more probable than not that his right shoulder injury occurred during the
incident of 20 November 2010."[65] The notes about the diagnosis of the Appellant's right shoulder condition in the same document (Exhibit 5(14)) included:
"Rotator cuff tendinosis and AC Joint, arthritis (pre-existing?)
Subscapularis tear (presumably work-related)."[66] An earlier report by Dr Bansi dated 5 October 2011 (Exhibit 5(14a)) and forwarded to Dr Bryant referred to periscapular muscle wasting which he confirmed was a sign of no or limited use of the arm.
[67] Conversely Dr Gibberd who maintained in his oral evidence that he took measurements of the Appellant during his physical examination, reported "no evidence of any muscle wasting both to observation and measurement, in fact the muscles of the right arm were slightly larger than the left."
[68] Dr Bansi agreed with the proposition that an injury or a trauma to the shoulder can bring to light previous asymptomatic conditions and confirmed a number of the conditions listed could well have become symptomatic following an injury or trauma to the shoulder.
[69] In his report to Dr Bryant dated 28 November 2011 (Exhibit 14 (c)), Dr Bansi noted:
"...two days after the injection almost all of his pain disappeared...Given this fairly dramatic response to this injection, I think the shoulder is the major source of his pain."
[70] Dr Gibberd acknowledged he was unaware the Appellant was receiving cortisone injections from Dr Bansi at the time he had examined him, but nonetheless maintained his observations Mr Powell exhibited a lot of non-organic signs and symptoms during the examination. (T2, P36-37, L1-L60).
[71] In his report dated 15 December 2011 (Exhibit 5(21)) Dr Gibberd noted:
"...the mechanism of injury is not consistent with any shoulder problems: carrying two buckets of milk would not cause any significant pathology in the shoulder; he had no real complaints of shoulder pain for some considerable time following the incident. During this period of time, if he did suffer a minor soft tissue injury to the shoulder in the incident as described this would have well and truly healed but it is my opinion that he suffered no injury to the right shoulder area."
[72] Under cross-examination, Dr Bansi agreed with the suggestion he had formed a view that two of the conditions - rotator cuff tendinosis and AC Joint arthritis, were degenerative and not likely to have been caused by trauma.
[73] In his evidence, Dr Bansi agreed with the proposition that a subscapularis tear could have occurred if his shoulder had been forcibly externally rotated.
[74] Under cross-examination, he also agreed with the proposition the subscapularis tendon may also have been degenerate and therefore more likely to tear in response to a more minor or innocuous trauma.
[75] Dr Gibberd was of the view the reference to a "sprain or small partial under surface tear in the distal subscapularis tendon" in the MRI report was fairly minor.
[76] A later report provided by Dr Bansi to the Regulator on 8 February 2013 (Exhibit 5(18)) confirmed that on reading Dr Thorpe's contemporaneous notes his opinion was that it was more likely Mr Powell's rotator cuff tear was not caused by his work related injury (my emphasis).
[77] In the same report Dr Bansi noted:
"Specifically, the statement on the 26th of November 2010, stating that 'upper arm movement good' would tend to mitigate against an acute rotator cuff tear. Typically rotator cuff tears would cause significant pain and loss of active range of motion for at least 4 to 6 weeks until the condition stabilises."
[78] Likewise, in response to questioning around the type and location of pain that would accompany a rotator cuff injury, Dr Gibberd said:
"One would have expected pain within at least 48 hours of a reasonably
significant degree."[79] Dr Bryant agreed with the proposition that cervical spine could mimic shoulder pain and that in certain cases, neck pain could dwarf pain of a lesser consequence, such as shoulder pain.
[80] Dr Gibberd's evidence was the pain associated with a rotator cuff injury is usually located at the front of the shoulder joint or the outer side of the shoulder joint and further, that there was a clear difference between the pain associated with neck pathology and shoulder pathology in so far as moving the arm during an examination would generally create pain and discomfort where shoulder pathology existed.
[81] The lack of reported pain or restricted movement in the shoulder or upper arm region on 23 November 2010 at the time of the initial reported neck injury was inconsistent, in Dr Gibberd's view, with a shoulder injury occurring at that time.
[82] In response to questions around whether the Appellant complained of any symptoms in his right shoulder, Dr Atkinson, (who examined the Appellant in January 2011 before an application for compensation was lodged in respect of his shoulder pathology), stated:
"No, he complained of pain in his neck and the pain in the interscapular region,
that was the - the predominant thing he was complaining of…He complained of
pain in his neck, pain between the shoulder blades, he said he had no weakness. He was - he had pain and paraesthesia in his fingers, in the middle finger and the ring finger and the little finger." (T2, P55, L50-60).
[83] And later, under cross-examination:
"...he wasn't showing and he wasn't giving any complaints of shoulder trouble and when he moved his shoulders, there was a full range of movement..." (T2, P63, L1-10).
[84] Under cross-examination Dr Bansi also confirmed it was impossible, based on the MRI, to date with any accuracy when the injury to the rotator cuff occurred, subsequently agreeing the pain described by the Appellant - right side of his neck over the top of his shoulder into his arm and down into his two fingers, his ring finger and his pinky finger, with pain at the top of his chest on his right-hand side - was not consistent with rotator cuff pathology as the main cause of pain.
[85] Under cross-examination Dr Bansi agreed with the suggestion there would be no way to detect whether an aggravation of a degenerative condition had occurred where symptoms are masked by another condition.
[86] On the question as to whether the injury of 20 November 2010, on the balance of probabilities aggravated any pre-existing injuries, Dr Bansi initially said:
"It's very difficult to describe an aggravation without seeing the patient at the time of the injury, without having any injury of his shoulder function prior to the injury, and so limiting myself purely to my assessment which occurred 12 months after the injury and after further surgical intervention, it is plausible or probable that there was some aggravation to those pre-existing changes in his shoulder, the AC joint problem and the tendinosis. The injury is probable to have caused some aggravation to those - to pre-existing conditions. As to whether it aggravated a pre-existing subscapularis tear, it would be pure speculation. I'm unable to state with any certainty whether it would have aggravated a pre-existing subscapularis tear. That would require pre-existent MRI scans, pre-existent examinations of the shoulder, to ascertain whether there was a longstanding thing or not." (T1, P103, L20-30).
[87] Later, under cross-examination Dr Bansi agreed with the proposition that in the absence of contemporaneous examination or reports of symptoms localised to the shoulder injury, he could do no more than speculate as to whether or not the Appellant might have aggravated pre-existing shoulder conditions due to the event of 20 November 2010, subsequently confirming:
"It's not more probable than not because the symptom complex was not suggestive of rotating cuff aggravation. So it is plausible that he has but the symptoms don't directly support that. The symptoms I would look for would be pain localized to the shoulder, restriction in range of motion, acute changes on the MRI, they would be supportive of an aggravation and so it is possible but it's not probable.
Is that in regard to the subscapularis tear? -- That’s in regard to the tendinosis of
the supraspinatus and the AC joint, which are the two pre-existent conditions that
are definitely pre-existent." (T1, P104, L40-50).[88] In his report dated 1 December 2011 (Exhibit 20) and with respect to the relationship between the mechanism of injury and the Appellant's employment, Dr Gibberd recorded:
"Mechanism of injury would not have been consistent with any injury to the right shoulder joint region. Signs and symptoms elicited on today's examination are not consistent with any organic pathology and imaging does not confirm any significant pathology. It would be my opinion that he has not suffered any right shoulder injury as a consequence of his work."
[89] Dr Gibberd's opinion, in part, was based on the lack of complaints from the Appellant about any shoulder pain or restriction in movement following the neck injury. He was also of the view that the referred pain reported by the Appellant to Dr Bryant, which involved pain travelling down the arm to his forearm with pins and needles in his fingers at the time of the initial neck injury on 20 November 2010, should not be confused with shoulder pathology.
[90] Dr Gibberd's findings in relation to his clinical examination of the Appellant's upper limbs found:
"There was voluntary weakness of all resisted motion of the shoulder on both sides. Resisted internal and external rotation and resisted adduction caused pain in the thoracic region. Resisted abduction caused pain over the anterior aspect of the right shoulder. There was no evidence of any muscle wasting both to observation and measurement in fact the muscles of the right arm were slightly larger than the left."
[91] In response to questioning around the potential consequences of the neck surgery undertaken by the Appellant and whether or not this could have been the cause of the Appellant's shoulder pain or pathology, Dr Atkinson stated:
"No - it won't - it will not cause shoulder pathology. It may cause referred pain to
the shoulder area."
[92] Under cross-examination, Dr Atkinson conceded that given he had not performed any other investigations on the Appellant since his fusion surgery, it was not possible for him to express any opinion at all, as a matter of probability, that the Appellant was suffering from referred pain from the original surgery.
Consideration and Findings
[93] In this appeal the Commission is required to consider the question of whether the pain and discomfort associated with a right shoulder injury, (whether that be an aggravation or discrete injury) that the Appellant says he was suffering when he made his application for compensation is causally related to a workplace incident which occurred on 20 November 2010; and further, was the 20 November 2010 incident a significant contributing factor to Mr Powell's right shoulder injury.
[94] There is no contest in this matter that a prior workers' compensation claim for an aggravation of pre-existing degenerative changes in the cervical spine was accepted by WorkCover on or around 23 November 2010 after the Appellant suffered an injury to his neck and mid thoracic region as he was carrying two buckets of milk up some stairs in a dairy.
[95] The Appellant has submitted that resolution of the appeal turns on whether the Appellant's evidence is accepted in so far as he is claiming he suffered pain to his shoulder region subsequent to the workplace incident of 20 November 2010 and further, as pain is subjective whether the appellant's evidence is plausible and consistent with the history provided to the doctors.
[96] In addition to proposing there is substantial conflict and inconsistency amongst the specialist medical evidence provided by specialist doctors, the Appellant has submitted the mechanism of injury at the time of the workplace incident placed substantial pressure on Mr Powell's shoulder and further, that he has provided a consistent and credible version of pain to his right shoulder in an environment where he has had no prior right shoulder injuries or symptoms.
[97] In contrast the Respondent disagrees, stating that the medical evidence is not in conflict nor inconsistent and further, has submitted the Appellant's evidence cannot be viewed as entirely reliable or accurate, with early medical evidence substantiating the Appellant did not have any immediate and continuous arm or shoulder pain or restriction of movement and is also unable to satisfy the onus of proof upon him to demonstrate it is more probable than not that he sustained an aggravation to his right shoulder.
Mechanism of injury - 20 November 2010 workplace incident and right shoulder injury
[98] The Respondent has questioned whether the Appellant's evidence can be viewed as entirely reliable on the basis he had difficulty recalling several important aspects associated with his work and the incident of 20 November 2010 and further, that Mr Powell's evidence about his immediate and continuous shoulder and arm pain conflicts with the contemporaneous notes of practitioners who were treating him at the time.
[100] In relation to the 20 November 2010 workplace incident involving the Appellant, Mr Kahler prepared a report (Exhibit 5(16) indicating an increased riser height "would predictably result in increased body stressing, particularly for that arm and shoulder on the uphill side of the stairway where the upper arm has to be abducted to lift the 20 litre carton. This would have the effect of increasing the loading on the cervical spine and the right shoulder."
[102] However, Mr Kahler made it quite clear in both his report and his oral evidence that an inspection of the dairy was not undertaken prior to or after the preparation of the report. Further, the starting point for his assumptions and the dimensions in relation to many aspects of the report including the stair access and components of the receiving bucket were based on details and sketches of the dairy provided by Mr Powell.
[103] References to dimensions and assumptions throughout the report are pre-empted with the words "about" 500-600mm wide or "approximately" 182cm, or "could potentially...".
[104] When considered in conjunction with Mr Powell's evidence in relation to the number of stairs leading up to the area where he dropped off the milk buckets (he was unsure) and the Appellant's lack of clarity around the manner and extent to which he had lifted his right arm on the day of the 20 November 2010 workplace incident it is very difficult to form a clear view as to the mechanism of injury and the extent to which the 20 November 2010 incident contributed to Mr Powell's right shoulder pathology.
[105] The Appellant submits the evidence is overwhelming that Mr Powell was honest and did not embellish, providing a consistent version of pain to the right shoulder since the workplace incident.
[106] In some respects, the Appellant's submissions are correct in so far as Dr Bryant, Dr Thorpe and Dr Atkinson all consistently agreed with a similar proposition that Mr Powell appeared to be very keen to get back to work and was not a malinger or a fraud. Further, the reporting of pain by the Appellant to various treating doctors and/or health practitioners over time was reasonably consistent in so far as his neck and intermittent arm radiation.
[107] There is limited evidence however to support the contention the Appellant was experiencing direct shoulder pain or symptoms leading to a restriction in upper arm or shoulder movement, arising out of the 20 November 2010 workplace incident.
[108] Under cross-examination Dr Thorpe stated his normal examination for injuries such as that reported by the Appellant on 20 November 2010 would have included abduction and adduction exercises which tested movement of the arm as it moved to the side, front and back of the body.
[109] Mr Powell also accepted he would have been asked by Dr Thorpe to demonstrate the movement in his neck and shoulder on the day.
[110] Whilst there were reported instances of "arm radiation" in Dr Thorpe's notes on both
22 November 2010 and later "neck pain with referred arm pain" on 3 December 2010 and 25 January 2010, there were no specific contemporaneous notes referring to pain and/or restriction of movement associated with Mr Powell's right shoulder.
[110] Likewise, there was no reference to pain or restriction of movement of the right shoulder or arm in the notes of the physiotherapist the Appellant visited on 23 November 2010.
[112] The Appellant described his pain as:
"it was just, like, aching down me shoulder, in the back of the arm and I had pins
and needles in the two left - little finger and the next one."[113] According to Dr Bryant, a fairly typical distribution of C7 pain - which was pain associated with the Appellant's neck injury rather than a shoulder injury is "pain in between the shoulder blades in the back, pain down the back of the arm in the region of the triceps, in the back of the forearm, and some tingling in the fingers." (D1, P70, L20-30).
[114] Dr Bryant also confirmed he did not make any observation of restriction of movement in the Appellant's right arm at the time of his initial examination with Mr Powell.
[115] Likewise, Dr Atkinson was very clear the Appellant had complained of pain in his neck and pain between the shoulder blades but that at the time of Mr Powell's examination in January 2011 had made no complaints of shoulder trouble and when he moved his shoulders, there was a full range of movement.
[116] Whilst Dr Bansi, in his initial report of 14 November 2011 (Exhibit 5(14) formed a view it was more probable than not Mr Powell's right shoulder incident occurred during the workplace incident of 20 November 2010, he later changed his opinion in relation to Mr Powell's rotator cuff injury being caused by the 20 November 2010 workplace incident after being provided with Dr Thorpe's notes.
[117] Dr Bansi subsequently said he was unable to state with any certainty whether the 20 November 2010 incident would have aggravated a pre-existing subscapularis tear and agreed with the proposition that he could do no more than speculate as to whether or not the Appellant might have aggravated pre-existing shoulder conditions.
[118] Dr Gibberd opined the referred pain reported by the Appellant to Dr Bryant, which involved pain travelling down the arm to his forearm with pins and needles in his fingers at the time of the initial neck injury on 20 November 2010, should not be confused with a shoulder injury.
[119] Further, the lack of reported pain or restricted movement in the shoulder or upper arm region was inconsistent, in Dr Gibberd's view, with a shoulder injury occurring at that time.
[120] I have preferred the evidence given by Dr Gibberd to the effect the Appellant's right shoulder condition is not work related.
[121] A summary of the various matters I have taken into account are set out below:
the lack of firmness in the Appellant's evidence; the absence of any reference to shoulder pain or restriction in movement to the
upper arm in Dr Thorpe's notes; the absence of any reference to shoulder pain or restriction of movement to the
upper arm region in the notes of the physiotherapist; the absence of any reports of any shoulder pain or restriction in upper arm
movement arising out of the Appellant's consultation with Dr Atkinson; and
Dr Bansi's inability to state with any certainty as to whether the pre-existing
shoulder condition might have been aggravated as a result of the 20 November
2010 work incident.
[122] It is accepted the Appellant had underlying right shoulder pathology. Dr Bansi accepted the proposition this may have reflected underlying degenerative conditions of the right shoulder.
[123] In all the circumstances of this case, there is not enough evidence before the Commission upon which I could find, on the balance of probabilities that the Appellant's right shoulder injury which he says occurred as a result of the workplace incident on 20 November 2010 arose out of or in the course of his employment, and that his employment is a significant contributing factor, and further, that the Regulator has erred in confirming the decision of the insurer to reject the Appellant's application for compensation in accordance with s 32 of the Act.
Orders
[124] Accordingly, I make the following orders:
i) the appeal is dismissed;
ii) the decision of the Regulator dated 6 February 2012 is confirmed; and
iii) the Appellant pay the Respondent's costs of and incidental to this appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
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