Premier Care Pty Limited v Socratous
[2009] NSWWCCPD 155
•9 December 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Premier Care Pty Limited v Socratous [2009] NSWWCCPD 155 | ||||
| APPELLANT: | Premier Care Pty Limited | ||||
| RESPONDENT: | Alexandra Maria Socratous | ||||
| INSURER: | Cambridge Integrated Services Australia Pty Limited | ||||
| FILE NUMBER: | A1-4002/09 | ||||
| ARBITRATOR: | Ms J Scott | ||||
| DATE OF ARBITRATOR’S DECISION: | 13 August 2009 | ||||
| DATE OF APPEAL DECISION: | 9 December 2009 | ||||
| SUBJECT MATTER OF DECISION: | Injury; weight of evidence | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Hicksons Lawyers | |||
| Respondent: | Everett Paull | ||||
| ORDERS MADE ON APPEAL: | Paragraph two of the Arbitrator’s determination of 13 August 2009 is revoked and the following order made: “2.The assessment of the degree of permanent impairment of the applicant worker’s lumbar spine as a result of her injury on 2 February 2007 is referred to the Registrar for referral to an Approved Medical Specialist. All documents admitted into evidence at the arbitration are to be forwarded to the Approved Medical Specialist.” Paragraphs one, three and four of the Arbitrator’s determination of 13 August 2009 are confirmed. | ||||
| Each party is to pay its or her own costs of the appeal. | |||||
BACKGROUND
The worker, Ms Socratous, commenced work for the employer, Premier Care Pty Limited (‘Premier’), as a carer in 2004. She alleged that she injured her neck, right shoulder, and back as a result of the heavy and repetitive nature of her duties between August 2004 and 2 February 2007. In the alternative, she alleged that on 2 February 2007 she injured her neck, right shoulder, and back whilst showering a disabled patient. The precise circumstances of the events on 2 February 2007 are the subject of conflicting evidence and are considered in detail below.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 25 May 2009, Ms Socratous claimed lump sum compensation in the sum of $17,050.00 in respect of a 12 per cent whole person impairment as a result of the condition of her lumbar spine, cervical spine, and right upper extremity (right shoulder). She also claimed hospital and medical expenses.
The Commission listed the matter for conciliation and arbitration on 11 August 2009 when Ms Socratous’ solicitor discontinued any claim in respect of the left upper extremity, the cervical spine, and any claim for hospital and medical expenses (T1.25; T11.30). It was agreed that the employer disputed liability in respect of any alleged injury to the right upper extremity (right shoulder). After hearing lengthy submissions, the Arbitrator granted leave for Premier to dispute whether employment had been a substantial contributing factor to the injury to Ms Socratous’ back.
After hearing submissions from both parties, but no oral evidence, the Arbitrator delivered an ex tempore decision in which she determined:
(a)that an incident occurred while Ms Socratous turned and propped a patient in the course of showering that patient on 2 February 2007 (T31.57 – T32.1-4);
(b)employment was a substantial contributing factor to the injury (T32.29);
(c)she was not satisfied that Ms Socratous suffered any injury arising out of the nature and conditions of her employment (T34.8), and
(d)Ms Socratous injured her lumbar spine and right upper extremity (right shoulder) in the course of her employment on 2 February 2007 (T34.12).
In an appeal filed on 10 September 2009, Premier seeks leave to challenge the Arbitrator’s finding that Ms Socratous injured her right shoulder on 2 February 2007. There is no challenge to the finding that Ms Socratous injured her lumbar spine or that employment was a substantial contributing factor to that injury.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in section 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 August 2009, records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.Award for the Respondent with respect to the Applicant’s claim for lump sum compensation for the right upper extremity (shoulder) and the lumbar spine as a result of nature and conditions of employment between 23/08/2004 and 02/02/2007.
2.The degree of permanent impairment in respect of the right upper extremity (shoulder) and the lumbar spine is to be referred by the Registrar to an Approved Medical Specialist (AMS) for assessment of the lumbar spine and right upper extremity as a result of the frank injury on 02/02/2007, in accordance with the WorkCover Guides for Evaluation of Permanent Impairment. The documents to be sent to the AMS are those accepted in the proceedings, being the Application and Reply and all attached documents, as well as the late documents filed by the Respondent being the notes of Dr Theocharous (2 bundles) and the file produced by EML in relation to the prior injury to the lumbar spine.
3.That the respondent pay the Applicant’s costs as agreed or assessed.
4.That the balance of these proceedings be discontinued. That the requirement to file a notice of the discontinuance pursuant to Rule 15.7 is dispensed with.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)her analysis and interpretation of the evidence;
(b)making findings in the absence of probative evidence, and
(c)failing to properly evaluate the worker’s credit.
THE EVIDENCE
The worker’s evidence is set out in her statement of 18 June 2008. She started work for Premier as a carer in August 2004. Her duties required her to provide personal care to clients in their homes. Her duties involved, among other things, showering, dressing and making meals.
Ms Socratous states that she was “involved in a work related accident” in the course of her duties on 2 February 2007 when she was helping to shower a disabled client. She describes the incident in the following terms:
“21. Whilst supporting the client I bent over and felt a severe pain in my back.
22. I then twisted and felt pain in my neck and right shoulder.
23. I reported the back injury to my employer but did not report the neck and shoulder injury.”
Rather than her pain resolving, as she believed it would, it got worse. As a result, she attended on her local general practitioner, Dr Theocharous, on 5 February 2007. He immediately arranged for MRI scans of the cervical spine and the lumbo-sacral spine. Ms Socratous was unable to return to work and she was prescribed medication and advised to rest. Dr Theocharous certified her to be unfit for work because of a “soft tissue sprain, thoracolumar [sic] spine”. She was also referred for physiotherapy and hydrotherapy. As at June 2008, Ms Socratous continued to complain of pain in her low lumbar spine that radiated into her left leg, together with pain and stiffness in her neck and right shoulder. She had constant headaches and, on occasions, an inability to lift her right arm.
Ms Socratous completed a claim form on 5 February 2007 in which she described the incident as follows:
“Held on to chair armrest to stand up and felt pain in lower back. Had just finished assisting client have a shower.”
Under “Description of injury”, she stated:
“Soft tissue sprain thoracolumar [sic] spine”.
Dr Theocharous’ notes record that he saw Ms Socratous on 5 February 2007 in relation to her work injury. Unfortunately, the doctor’s notes are extremely difficult to decipher. Nevertheless, they appear to refer to pain in the mid thoracic/lumbar area radiating to the right hip. It is reasonably clear that there is no reference to the right shoulder or right arm.
Ms Socratous saw Dr Theocharous again on 7 and 9 February 2007. Again, the notes are difficult to decipher but there is a clear reference to tenderness in the mid thoracic area and to pain on the right side. There is a clear entry in the notes for 23 February 2007 of “pain (R) arm now”.
On referral from Dr Theocharous, Ms Socratous attended for physiotherapy with Brigita Ancans on 6 February 2007. Ms Ancans reported to Dr Theocharous on 22 February 2007 in the following terms:
“She reported her injury occurred on 02/02/07 whilst performing personal care for a client whilst at work. Alexandra reported that whilst washing a patient she felt a ‘tingling’ in her back, followed by a sensation of pain in the thoracic spine and hips. Alexandra reported her pain was aggravated by prolonged sitting < 10-15 minutes; driving < 10 minutes. Her pain was relieved with the use of pillows behind her back.”
On examination, Ms Socratous’ active range of motion of her lumbar spine was reduced with a report of pain. Muscle spasm was present on palpation of the “right lumbar and thoracic extensor spinae and right > left levator scapulae”. Treatment was directed to soft tissue massage to the lumbar and thoracic spine. Ms Socratous reported that the physiotherapy treatment assisted in relieving her thoracic spine and right-sided low back pain, though the relief was only temporary.
On 9 February 2007, Premier’s insurer, Cambridge Integrated Services Australia Pty Ltd (‘Cambridge’), prepared an injury management plan which contains the following injury description:
“Held on to chair armrest to stand up and felt pain in lower back. Had just finished assisting client have a shower.
Soft tissue sprain thoracolumbar spine”.
On 20 February 2007, Ms Socratous’ case manager with Cambridge forwarded a standard form questionnaire to Dr Theocharous. In response to the question “What is your patient’s diagnosis?” Dr Theocharous replied “cervical/L/S spine strain.” The doctor’s response is signed and dated 2 March 2007.
Dr Theocharous referred the worker for assessment of her potential to benefit from an intensive supervised aquatic reconditioning program. Ms Quispe, physiotherapist, conducted that assessment on 7 March 2007 and reported on 2 April 2007. Under “Current History”, Ms Quispe recorded:
“Mrs Socratous reported sustaining her lumbar spine injury on 02/02/07. She reportedly experienced pain in her lower back due to her work duties and as she was assisting a client to wash she bent forwards feeling ‘a pull’ from the neck to the lumbar spine region. Mrs Socratous reported she sat on an armchair whilst her client was eating breakfast, however she experienced a marked increase in her pain levels. She reported she required the assistance of a work colleague. Mrs Socratous reported she continued working, going to her next client and found it difficult getting out of the car and her back was in a flexed position. When her client saw her in this condition she was sent home. Mrs Socratous had a hot shower, warmed her back and massaged her back and neck with Dencorub and rested for the remainder of the day. Mrs Socratous reported that the following day the pain had worsened and she went to see her General Practitioner, Dr T Theocharous who recommended physiotherapy treatment and provided anti-inflammatory medication. Mrs Socratous reported her pain levels are improving, however she reported having good and bad days.”
Under “Current symptoms”, Mrs Socratous reported that she had a constant throbbing pain in the right cervical and thoracic spine region, intermittent pain with a “fuzzy feeling” in the mid thoracic spine region, a constant sharp pain in the lumbo-sacral spine region, intermittent paraesthesia with a “very heavy feeling” of the right upper limb anteriorly from the elbow to the hand and posteriorly from the mid arm to the hand, and intermittent paraesthesia in the right lower limb.
On examination, Ms Quispe observed the worker to have a reduced range of movement in her cervical spine, thoracic spine and lumbar spine. The “active range of motion of the right shoulder was within normal range” and pain free though there was a mild weakness of the right shoulder musculature. Neurological examination revealed decreased sensations in the C6 and C7 dermatomes. There was also a decreased right triceps jerk and decreased “erectors spinae endurance”.
Ms Quispe recommended that the worker participate in 12 sessions of an intensive supervised aquatic reconditioning program with the goal of improving her cervical, thoracic and lumbar spine mobility and strength, and improving her right shoulder mobility, strength and scapulohumeral rhythm and improving her scapular stabiliser and rotator cuff strength and endurance.
MRI scans of the cervical spine and the lumbo-sacral spine were performed on 4 April 2007. The radiologist reported on 5 April 2007 that the scans revealed minor disc degenerative changes at C5/6 and C6/7 and multiple disc protrusions in the thoracic spine and the lumbar spine.
Ms Ancans reported to Dr Theocharous on 10 April 2007 that Ms Socratous had been attending for physiotherapy twice per week. The treatment consisted of massage to the lumbar spine and the thoracic spine in an effort to improve soft tissue elasticity.
Ms Quispe re-assessed the worker at the conclusion of the aquatic reconditioning program on 7 May 2007 and reported to Dr Theocharous on 14 May 2007. Ms Socratous reported a temporary decrease in the level of her pain and an improvement in the flexibility of her spine and right shoulder. However, she continued to complain of a constant throbbing pain in the right side of her cervical spine extending to the upper fibres of the trapezius and the levator scapulae region, constant throbbing with intermittent sharp pain in the lumbosacral spine region extending into the buttocks bilaterally, and intermittent paraesthesia in the anterior aspect of the right arm and anterior aspect of the right hand. Ms Socratous complained that she was unable to vacuum, mop, lift the washing basket, and had difficulty hanging the washing on the clothesline.
On examination, Ms Quispe noted there was an improved range of movement of the cervical spine, but recorded the active range of motion of the right shoulder to be decreased due to reported suprascapular region pain. There was also mild to moderate weakness of the right shoulder musculature.
On 2 October 2007, Ms Bryant, physiotherapist with Peak Conditioning, assessed Ms Socratous for a fitness program. She took a history that on 2 February 2007 Ms Socratous sustained an upper, lower back and right shoulder injury “after assisting a resident transferring”.
Dr Theocharous reported to Cambridge on 11 December 2007 in the following terms:
“1. She was seen by me on the 5th of February 2007. She was complaining of pain to her low back and right buttock area as well as pain in the mid scapular area right neck and shoulder area. This happened while at work she suddenly got up from a sitting position. There was no history of any heavy lifting on that day but in the course of her duties she had to get in and out of the car many times per day as well as having to look after a lot of disabled people having to constantly bend and prop them up…
In my opinion her condition is consistent with the history given.
2. On examination there was marked tenderness and muscular spasm at the lumbo-sacral, mid thoracic and right shoulder area. There was no neurological deficit although she was complaining of paraesthesia down the right arm in the distribution of C5/C6 level.”
The doctor added that he felt the incident on 2 February 2007 contributed to Ms Socratous’ injuries.
Dr Conrad examined Ms Socratous for medico-legal purposes on 18 December 2007 and reported to her solicitors on 19 December 2007. He took a history that Ms Socratous was showering a disabled client on 2 February 2007 and whilst supporting the client she bent over and felt a severe pain in her back. In addition, as she supported the client and felt the pain in her back, she twisted and felt pain in her neck and right shoulder. On examination he found the worker to have a reduced range of movement of her right shoulder and he diagnosed her to have a right shoulder strain as a result of the incident on 2 February 2007.
Ms Socratous again attended on Dr Theocharous on 22 February 2008. The doctor’s notes have a clear reference to the right shoulder. There also appears to be a reference to exercises at home. On examination, all movements were reduced and the doctor suspected supraspinatus tendinitis.
Ms Socratous underwent a right shoulder ultrasound on 27 February 2008. The findings of the ultrasound were said to be consistent with Dr Theocharous’ clinical diagnosis of a right supraspinatus tendinitis.
On 6 March 2008, Dr Theocharous wrote the following note:
“THIS IS TO CERTIFY THAT
MRS Alexandra Socratous CLAIM NO S2A/149591 NECK AND BACK INJURY
IS UNABLE TO PARTICIPATE IN THE RECENTLY APPROVED GYM PROGRAM
DUE TO A SHOULDER INJURY. IN MY OPINION SHE WILL BENEFIT FROM A COURSE OF HYDROTHERAPY INSTEAD, FOR HER ONGOING NECK AND BACK PAIN.”
On 11 March 2008, Michelle Zuvela, an employee with Premier, prepared and signed a file note relating to a telephone conversation she had with Ms Socratous on 10 March 2008. On that day Ms Zuvela telephoned Ms Socratous to advise her that she would no longer be receiving workers compensation benefits because Dr Theocharous had issued a “standard” medical certificate stating that she was unfit for her usual occupation. Ms Socratous became quite distressed and said that she needed to be paid otherwise she could not support her family. Ms Zuvela advised that unless she received a WorkCover certificate, no benefits would be paid. Ms Socratous allegedly said that her injury was to the tendons in her shoulder and that it was work related because she had been “over-compensating for her back injury”, but later said that it was not work related and that she “did it lifting a load of washing at home.” Ms Socratous said she would contact her doctor regarding a WorkCover certificate. Within five minutes of the telephone conversation, Ms Zuvela received a non-WorkCover certificate from Dr Theocharous stating that the worker had recovered from her shoulder injury and “will be fit to resume her usual occupation”.
On 28 March 2008, Ms Socratous came under the care of a new general practitioner, Dr Schindler. In a report to Cambridge on 16 February 2009, Dr Schindler recorded:
“She told me that she had lifted a patient on 2 February 2007 and had developed pain in her lower back radiating to her left leg immediately. She had previously injured her back in 2002. She had been off work all that time and had been having physiotherapy, hydrotherapy and undertaken a gym program. In February 2007 she started to complain of right shoulder pain which she felt was due to her using her upper body more.”
At his most recent examination (on a date not identified) he noted that Ms Socratous had tenderness over the right shoulder and in her lower back and restriction of movement. He noted the opinion of Dr Breit (specialist qualified by Cambridge, whose evidence is referred to below) that there was no relationship between Ms Scoratous’ shoulder and overuse to compensate for her back, and added that he respected Dr Breit’s opinion. He said that Ms Socratous had recently mentioned that she felt pain in her shoulder at the time of the incident in 2007, but she had not previously volunteered that information.
On 9 April 2008, Dr Schindler issued the first WorkCover medical certificate to refer to the right shoulder.
On examination (presumably on 16 June 2008), Ms Ancans observed Ms Socratous to have a reduced range of movement of the right shoulder and mild weakness of the shoulder muscles.
On 11 August 2008, Ms Ancans recorded that the worker continued to report constant right shoulder pain and right sided headaches. Her pain was aggravated by lifting and repetitive upper limb activities.
On 25 August 2008, Ms Ancans reported to Dr Schindler in the following terms:
“Thank you for your referral of this 42 year old carer for treatment of right shoulder supraspinatus tendonitis and cervicobrachial pain. Alexandra commenced physiotherapy treatment with me on 16/06/08, reporting an acute exacerbation of right shoulder/arm pain due to over exercising the right shoulder at the gym. Alexandra reported pain had now spread to her right cervical spine, upper fibres of [the] trapezius and [the] right thoracic region. She also reported experiencing daily headaches. Alexandra has been attending Peak Conditioning for a gym programme.
At time of initial consultation, Alexandra reported constant burning and throbbing pain in the right shoulder, cervical/thoracic spine regions and pectoral region. She reported intermittent numbness in the right forearm region. Alexandra reported her symptoms were aggravated by hanging up clothes and picking up heavy objects. Alexandra reported difficulty with sleeping. Her symptoms were relieved with the use of medication, heat and stretching.”
At the request of Dr Schindler, Ms Socratous underwent a second right shoulder ultrasound on 11 November 2008. That scan revealed no abnormality.
On 11 December 2008, Dr Breit examined and reported on Ms Socratous. He took the following history:
“On 2 February 2007 she had a client in a shower and getting him up from a commode chair when he slipped. She was bending forward and grabbed him. There was pain in the low back, she went outside and sat down for a while and then when trying to get up found that her back was extremely painful. She did not finish the shift but went and saw her GP who arranged for some analgesics and then sent her for investigations followed by physiotherapy and later a gym programme.”
Dr Breit expressly noted that Ms Socratous denied having any right neck or shoulder pain at the time of the injury in February 2007. He recorded that she started to get headaches and a sensation of heaviness in the neck and right shoulder in mid 2007, noting that she could only put a few clothes on the line because of the discomfort. She attributed that situation to “using her upper body in order to protect the low back.” Ms Socratous denied having developed shoulder pain in April 2008 as a result of lifting a laundry basket. She said that she was “simply getting out of bed and using her elbows for assistance and she had sharp pain in the right shoulder.” As a result of this pain she saw Dr Schindler who arranged for an ultrasound. Dr Breit concluded that Ms Socratous’ cervicobrachial pain occurred spontaneously and was constitutionally based. The suggestion of cervicobrachial pain commencing as a result of using the upper body in order to protect the back was inconsistent.
Dr Conrad re-examined Ms Socratous on 29 January 2009 and reported on 30 January 2009. On this occasion he recorded that Ms Socratous felt pain in her back, neck and right shoulder when she was showering a disabled patient on 2 February 2007.
SUBMISSIONS, DISCUSSION AND FINDINGS
Premier submits that Ms Socratous did not injure her right shoulder at work and has not established a causal link between her right shoulder condition and her employment. It refers to the numerous medical and other records in February, March and April 2007 that make no reference to any shoulder injury or shoulder symptoms.
Ms Socratous relies heavily on Dr Theocharous’ report of 11 December 2007 which records that she complained to him of right neck and shoulder pain on 5 February 2007. She also relies on the Arbitrator’s reference to Ms Ancans’ report of 22 February 2007, which referred to muscle spasm “on palpation of the right lumbar and thoracic extensor spinae and right > left levator scapulae”. It is argued that this is a reference to the back of the right shoulder and that it provides a contemporaneous complaint of a right shoulder injury. Reliance is also placed on Ms Quispe’s assessment on 7 March 2007 when it was noted that Ms Socratous had a mild weakness of the right shoulder musculature.
Ms Socratous makes the following additional points:
(a)Dr Theocharous provided a precise history in his report of 11 December 2007 about the nature of her injuries to her back and right shoulder;
(b)she received physiotherapy for her back and right shoulder;
(c)Dr Schindler in his report of 16 February 2009 recorded a history that she injured herself in a lifting incident on 2 February 2007;
(d)she provided a history to Dr Conrad that is consistent with her evidence in her statement;
(e)Dr Breit recorded a consistent history of a frank injury on 2 February 2007, and
(f)the weight of the evidence is that she injured herself whilst at work on 2 February 2007.
Ms Socratous’ submissions are unpersuasive. The strongest point in her favour is the belated history recorded by Dr Theocharous in his report of 11 December 2007 that she complained of pain in the “shoulder area” when he saw her on 5 February 2007. This history is inconsistent with the doctor’s clinical notes, but more importantly, is also inconsistent with the history recorded by Ms Ancans on 6 February 2007 and by Ms Quispe on 7 March 2007. Further, Dr Theocharous’ history is inconsistent with the worker’s own evidence in that he claims that the symptoms happened when Ms Socratous “suddenly got up from a sitting position”. He took no history of her symptoms having been caused by twisting in the course of her duties, as she now claims.
I do not accept that Ms Socratous complained to Dr Theocharous about her right shoulder on 2 February 2007. That she did not make any such complaint is confirmed by the content of his medical certificate of that date, the doctor’s clinical notes, and by the worker’s claim form, where she stated in clear terms that she suffered a sprain to her thoraco-lumbar spine. None of these documents make any reference to a shoulder injury or symptoms.
Dr Schindler’s reference to Ms Socratous complaining of right shoulder pain in February 2007 because she was “using her upper body more” is inconsistent with Dr Breit’s history that the shoulder symptoms commenced in mid 2007. Given the detailed histories recorded by two independent physiotherapists, I do not accept Ms Socratous’ claim that she felt shoulder pain at work on 2 February 2007 or during February 2007. Dr Schindler expressly noted that Ms Socratous had not “previously volunteered” that information. I have no doubt that Ms Socratous had not previously volunteered that information because she did not experience shoulder symptoms on 2 February 2007.
The Arbitrator’s reliance on Ms Ancans’ report of 22 February 2007 was misplaced. The physiotherapist’s reference to spasm in the levator scapulae was not a reference to a shoulder injury or shoulder symptoms. As Premier has pointed out in its submissions on appeal, the levator scapula is a muscle at the side of the neck, not in the shoulder. The presence of spasm in that muscle may well indicate that Ms Socratous injured her neck, as she alleges, but it does not provide any support for the alleged right shoulder injury.
It is true that Ms Quispe noted mild weakness of the right shoulder musculature at her examination on 7 March 2007. However, the significance of that finding must be measured against the history Ms Quispe took, namely that Ms Socratous was assisting a client to wash when she bent forward and felt “a pull” from the neck to the lumbar spine region. She then sat on an armchair and experienced a marked increase in her pain. Later, she experienced difficulty in getting out of her car and her back was in a flexed position. This history provides no support whatsoever for Ms Scoratous’ allegation that she injured her right shoulder in the course of her employment on 2 February 2007.
Contrary to Ms Socratous’ submission, Dr Schindler’s history is completely inconsistent with the history recorded by Dr Theocharous in his report of 11 December 2007. Dr Theocharous expressly noted that Ms Socratous’ pain “happened while at work [when] she suddenly got up from a seating position.” He took no history of any heavy lifting, though he did record that Ms Socratous’ duties required her to look after a lot of disabled people, having to constantly bend and prop them up. This history is to be contrasted to Dr Schindler’s history that Ms Socratous developed low back pain radiating into her left leg when she lifted a patient on 2 February 2007. The two histories are inconsistent and cannot sit together. This further undermines the worker’s claim.
Ms Zuvela’s statement further weakens the claim. It is true that Ms Socratous referred to her shoulder symptoms in the course of her conversation with Ms Zuvela. However, she did not, at least on Ms Zuvela’s unchallenged evidence, assert that she injured her right shoulder in the circumstances referred to in her June 2008 statement. According to Ms Zuvela, the worker complained that her right shoulder symptoms were work related because she was “over-compensating for her back injury”. To the extent that that allegation is relied upon by Ms Socratous as an alternative ground, it is completely discredited by Dr Breit’s evidence and not addressed by any of Ms Socratous’ expert witnesses.
I place little weight on Ms Zuvela’s assertion that the worker said she injured her shoulder lifting a load of washing at home. However, I note that Dr Theocharous’ reference to the right shoulder in his note of 22 February 2008 refers to something having happened at home at about that time. In addition, Dr Breit recorded that whilst Ms Socratous denied injuring her shoulder whilst lifting a laundry basket, she stated that she was getting out of bed and using her elbows for assistance when she experienced sharp pain in her right shoulder. Whichever history is correct, it does not support the assertion that Ms Socratous injured her shoulder at work on 2 February 2007, or that her shoulder condition has resulted from her back or neck injuries.
In conclusion, Ms Socratous’ histories are inconsistent and do not support her claim that she injured her right upper extremity (right shoulder) at work on 2 February 2007 and the Arbitrator erred in finding that she did. The overwhelming weight of evidence is that Ms Socratous did not injure her right upper extremity on 2 February 2007 and that her right shoulder symptoms have not resulted from the injuries she did sustain on that day. It follows that the Arbitrator’s order referring the assessment of the degree of permanent impairment in respect of the right upper extremity (right shoulder) to the Registrar for referral to an Approved Medical Specialist must be revoked.
DECISION
Paragraph two of the Arbitrator’s determination of 13 August 2009 is revoked and the following order made:
“2.The assessment of the degree of permanent impairment of the applicant worker’s lumbar spine as a result of her injury on 2 February 2007 is referred to the Registrar for referral to an Approved Medical Specialist. All documents admitted into evidence at the arbitration are to be forwarded to the Approved Medical Specialist.”
Paragraphs one, three and four of the Arbitrator’s determination of 13 August 2009 are confirmed.
COSTS
Each party is to pay its or her own costs of the appeal.
Bill Roche
Deputy President
9 December 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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