Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Rieck v State of New South Wales (Illawarra Shoalhaven Local Health District) [2024] NSWPIC 52
APPLICANT:	Michelle Rieck
RESPONDENT:	State of New South Wales (Illawarra Shoalhaven Local Health District)
MEMBER:	Cameron Burge
DATE OF DECISION:	9 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation for injury and consequential conditions to left upper extremity; nature of the claimed injury; whether in the nature of a disease process or a series of micro traumata; respondent denies liability on grounds injury is in the nature of a disease process, and that there was a subsequent employer whose employment to the nature of which an aggravation of the disease was due or which was a substantial contributing factor to an aggravation to the disease injury; Held – on balance, the injury is a disease of gradual process; the evidence discloses the applicant’s subsequent employment was a substantial contributing factor to an aggravation of the disease injury, and accordingly compensation is not payable by the respondent in these proceedings; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her left upper extremity (elbow) and consequential left shoulder, wrist and hand conditions due to the nature and conditions of her employment with the respondent. 2. The injury referred to [1] above in is in the nature of a disease process and has a deemed date of injury of 28 November 2016. 3. Following her injury, the applicant was last employed by Ramsey Healthcare Australia Pty Ltd in employment to the nature of which the disease injury or any aggravation, acceleration, exacerbation or deterioration of the disease injury was due. 4. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

There is no issue the applicant, Michelle Rieck suffered an injury to her left elbow in the course of her employment with the respondent, State of New South Wales (Illawarra/Shoalhaven Local Health District). The applicant also alleges that as a result of that injury, she suffered consequential conditions to her left shoulder, hand and wrist. The left shoulder consequential condition is accepted, however, the alleged consequential conditions to the hand and wrist are disputed. The applicant seeks permanent impairment compensation in relation to the injury and alleged consequential condition.
The respondent declines liability for the applicant’s injury on the grounds it is a disease of gradual process and that after ceasing her employment as a cleaner with the respondent, the applicant later obtained employment as a casual cleaner at Ramsey Healthcare Australia Pty Ltd, working at Figtree Private Hospital. The respondent alleges this subsequent employment was to the nature of which the disease was due, and as such it is not liable to pay compensation for the injury.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the applicant’s injury is in the nature of a disease process or a series of micro traumata brought about by the nature and conditions of her employment;
(b)    if the injury is not in the nature of a disease process, whether the applicant sustained consequential conditions to her hand and wrist in addition to the accepted consequential condition to her left shoulder, and
(c)    if the injury is in the nature of a disease process, whether the respondent was the last employer whose employment was to the nature of which the disease, or an aggravation of the disease, was due.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 30 November 2023. At the hearing, the applicant was represented by Mr Boulton of counsel instructed by Ms Potter. The respondent was represented by Mr Young of counsel instructed by Ms McDonald.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application);
(b)    Reply and attached documentation;
(c)    Application to Admit Late Documents (AALD) and attached documents lodged by the respondent on 15 November 2023, and
(d)    AALD and attached documents lodged by the applicant on 23 November 2023.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

The nature of the injury suffered by the applicant

In her statement, the applicant noted she commenced employment with the respondent in or about 2013 as a cleaner. She set out the nature of her duties at [14] of her statement and noted she generally worked from 6:30am to 2:30pm either three or four days per week.
In relation to the onset of her symptoms, the applicant stated:
“16. In or about 2014, I began to experience pain, weakness and impaired dexterity in my left elbow, wrist and hand whilst at work performing my usual cleaning duties. Activities that were particularly aggravating included dusting, wiping, sweeping, mopping, lifting and carrying.
17.    I attempted to self-manage my symptoms with analgesics and massage without success.
18.    In or around 2016, my symptoms worsened significantly, becoming more frequent and prolonged.
19.    On 28 November 2016, I was mopping as part of my working duties when I experienced sudden lateral left elbow pain. This pain was like what I had been experiencing in the prior two years, although it was more severe.
20.    That day, I reported my symptoms to my usual treating general practitioner (GP), Dr Nicole Hutt. I was provided with a Certificate of Capacity certifying that I was totally incapacitated for any employment. I lodged a workers’ compensation claim upon EML and liability was admitted. The date of injury is 28 November 2016.”
The applicant was absent from work for approximately three weeks before returning on light duties, avoiding the use of her dominant left arm. On 2 December 2016, she underwent an ultrasound of her left elbow which revealed a tear of the extensor tendon. Following that diagnosis, she was treated with a cortisone injection on 7 December 2016, which afforded her temporary pain relief.
The applicant remained on light duties and consulted Mr Haig, hand therapist together with Dr Jansen, who performed further cortisone injections which the applicant stated provided good pain relief of a limited duration. In or about early 2017, the applicant was transferred from Bulli Hospital to Wollongong Hospital in order that she could perform light duties in accordance with her restrictions. On 28 June 2017, the applicant underwent a further ultrasound of her left elbow which confirmed a tear of the common extensor tendon which had not healed. An MRI dated 12 July 2017 indicated tendinosis and a tear in the applicant’s left elbow.
In or about late 2017, the applicant was advised by the respondent that suitable duties could no longer be provided and she would need to return to her pre-injury duties in order to maintain her employment. The applicant’s capacity was upgraded to fit for pre-injury duties, however, she states the respondent did not provide her with any shifts and her workers compensation file was apparently closed.
In approximately September 2018, the applicant states she obtained employment as a casual cleaner at Ramsey Healthcare Australia Pt Ltd, working at Figtree Private Hospital for between 8 and 16 hours per week. At [32] of her statement, the applicant said:
“32. My duties at Figtree Private Hospital were essentially the same as the work I performed for [the respondent]. When I returned to performing these duties, I experienced an aggravation in the symptoms in my left upper arm and went to see my GP, Dr Dion Casey.
33. I did lodge a workers’ compensation claim and liability was denied by iCare. I understand they denied the claim on the basis that my injury was related to my employment with [the respondent].
34. I was referred for an ultrasound which was performed on 8 July 2019. This confirmed a tear of the common extensor tendon and a radial collateral ligament tear [which] had worsened since the previous ultrasound on 2 December 2016. The scan was on my left elbow, not my right elbow as recorded on the report.”
It should be noted at this point in time that the parties agree the reference to the ultrasound of 8 July 2019 having been undertaken to the applicant’s right elbow is erroneous, and it is common ground the scan was in fact taken of the left elbow, being the injured body system at issue.
The applicant lodged a claim for permanent impairment compensation with the respondent’s insurer on 1 September 2022. Relevantly, attached to that letter was a permanent impairment claim form which named a date of injury of 28 November 2016 and described the injury as “disease of gradual process - 28/11/2016 being the date of claim.”
In support of the applicant’s claim, she relied upon the report of Independent Medical Examiner (IME) Dr Bodel dated 25 July 2022.
In that report, Dr Bodel took a history of the applicant’s employment with the respondent, noting it was heavy cleaning work including vacuuming, dusting, cleaning toilets, cleaning sluice rooms, sweeping, mopping and taking out rubbish.
Dr Bodel also noted the applicant’s post-injury employment at Figtree Private Hospital as a casual cleaner. The doctor noted the applicant remained in the employ of Ramsey Health/ Figtree Private Hospital until approximately October 2019 when she resigned due to her injuries and disabilities. Dr Bodel noted the applicant’s employment with Figtree Private Hospital was from 7:00am until 11:00am, four to five days per week doing cleaning work. He described the applicant as having developed increasing left elbow pain after returning to that work.
Dr Bodel recorded a detailed history and analysis of relevant documentation. He accurately set out the nature and onset of the symptoms suffered by the applicant together with appropriately recording the various practitioners who have treated her since the onset of her symptoms. Dr Bodel concluded it was clear the applicant was asymptomatic prior to her injury with the respondent and has had continuous symptoms dating from the time of her original injury. He ascribed the pathology as having arisen while the applicant was employed with the respondent.
Dr Bodel provided the following answers to specific questions:
“The patient states she has a history of gradual onset of arm pain involving the whole of the left arm, mainly in the elbow initially and that later spread to the hand and to the left shoulder. This occurred as a result of the nature and conditions of her work as a cleaner at the Bulli Hospital. During her period of employment there she was part-time, casual and then fulltime.”
Dr Bodel was then asked whether the applicant’s injury involved the aggravation of a disease or fresh pathology at her subsequent employment with Ramsey Health. Dr Bodel replied:
“There may have been a temporary aggravation of the disease process at her place of employment at Figtree Hospital, however, the underlying pathology instigated at the Bulli Hospital persists to this day. It is likely now that she has ceased this type of work, that the aggravation at the Figtree Hospital was temporary and her current symptoms relate to her original injury.”
It is apparent from Dr Bodel’s report that he regarded the applicant’s injury as in the nature of a disease process. That conclusion by the applicant’s own IME is important, as there is no issue the applicant carried out similar work with a subsequent employer after leaving the respondent’s employee. In the event there is a finding the applicant’s injury is in the nature of a disease of gradual process, the respondent submits (and the applicant does not as a proposition oppose) that s 16 of the Workers Compensation Act (the 1987 Act) would be enlivened. That section relevantly provides:
“(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease…
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
For the applicant, Mr Boulton submitted the medical evidence discloses the injury at issue is a torn tendon and cannot be said to be in the nature of a disease process. Rather, he submitted the disease was as a result of a series of micro traumata.
This matter is somewhat unusual, in that the respondent relies (or at least in part) on the applicant’s IME in support of its contention the injury is by way of the disease process, and the applicant relies on the views of the respondent’s IME, Dr Cadden, who stated in his report dated 7 December 2022, when asked whether the applicant’s injuries are in the nature of a disease of gradual process “No, they are not”. Dr Cadden was asked to explain his reasoning for that conclusion, however, in answering that specific question did not do so.
The applicant also relied upon the reports of A/Prof Ireland, including a report dated
11 April 2023. Those reports were obtained by the insurer for Ramsey Health. A/Prof Ireland took the following history:
“This lady began to experience pain in her left elbow in 2016. At that time, she was working as a cleaner and her work involved repetitive use of the dominant left arm. She was mopping at the time when she experienced sudden pain in the left elbow. She left work early on that day and saw her GP, Dr Casey, who arranged for an ultrasound of the elbow. She was certified unfit for work, rested and took analgesics. She returned to work on restricted hours duties. She continued with physiotherapy. On 7 December 2016, she had a steroid injection in the lateral epicondyle without benefit.”
A/Prof Ireland then noted the applicant had a period away from work before returning to full-time pre-injury duties in June 2017 and within two weeks noted increased pain which she thought was due to mopping. The applicant remained off work until 2019 when she obtained employment with Ramsey Healthcare at Figtree Private Hospital. A/Prof Ireland recorded:
“She states that her symptoms never completely settled and upon returning to work, she experienced further pain in her elbow. She went back to see Dr Jansen in September 2019 complaining of persistent symptoms and he recommended an MRI. When he reviewed her on 25 September 2019, he noted strong signs of lateral epicondylitis. He placed her on the waiting list at Shellharbour Hospital and she underwent surgery in the lateral epicondyle region in November 2020.”
When asked specific questions concerning the aetiology of the applicant’s injury,
A/Prof Ireland replied:
“a.     In your opinion, has the worker suffered an injury arising out of or in the course of her employment with [Ramsey Health]?
As noted above, this lady initially sustained an injury while working for Illawarra Health. She eventually ceased working due to ongoing symptoms. She returned with some mild persistent symptoms which aggravated while working for Ramsey Healthcare. It is my opinion the worker has suffered an injury arising out of, or in the course of, her employment.
b.     If so, was the worker’s employment a substantial contributing factor to the injury?
The nature of this lady’s work, which is repetitive and heavy, is certainly the substantial contributing factor to the injury.
c.      If you consider the worker has suffered a disease injury, was the worker’s employment with the insured the main contributing factor to the disease, or to any aggravation, acceleration, exacerbation or deterioration thereof?
This lady’s condition is due to repetitive microtrauma resulting in tears of the common extensor tendons as had been noted in the previous scans carried out in 2017.”
When asked whether there were any deductions for pre-existing conditions, keeping in mind A/Prof Ireland was retained by Ramsey Health to provide an opinion not the respondent in these proceedings, A/Prof Ireland replied:
“This worker has had no pre-existing injury nor any condition apart from the heavy and repetitive nature of work that would necessarily have contributed to her current impairment.”
Mr Boulton for the applicant submitted the micro traumata referred to by A/Prof Ireland is not an injury in the nature of a disease.
Dr O’Neill consultant neurologist provided a report to the applicant’s then GP, Dr Hutt dated 16 March 2017. In that report, he took the following history:
“For some weeks prior to 28 November 2016, Ms Rieck said she was experiencing pain from the region of the medial aspect of the left elbow with involvement of the left forearm. She worked as a cleaner and on or about 28 November 2016, she reported that she could not work with this pain which was restricting movement at her left elbow.”
As Mr Boulton noted, the applicant’s treating surgeon Dr Jansen does not provide medicolegal reports. However, on 11 July 2017 Dr Jansen provided a report to Dr Hutt. In that report, Dr Jansen took a consistent history of the onset of the applicant’s pain and other symptoms. He diagnosed her with medial epicondylitis and described the mechanism of the injury as “through repetitive cleaning activities at Bulli District Hospital”. He described the applicant as clinically having an atypical presentation of what seems to be a golfer’s elbow.
Dr Keller, occupational physician provided a report to the respondent’s insurer dated 18 August 2017. Dr Keller described the proposition of the applicant’s employment with the respondent as being a main contributing factor to her then symptoms as a reasonable one. Dr Keller stated that constant gripping such as often happens with cleaning duties is a common trigger for epicondylitis and is therefore the main contributing factor to the applicant’s injury.
The applicant placed reliance on the presence of a tendon tear as supportive of the proposition there was no injury in the nature of a disease process present. However, there is nothing in the medical evidence which rules out an injury in the nature of a disease process causing such a tendon tear. Her own statement refers to the pain which overcame her on
28 November 2016 was a more serious iteration of the same pain she had been experiencing in the week and months leading up to that day. Additionally, there is no question the applicant also suffered from epicondylitis in her elbow.
As already noted, the applicant’s own IME Dr Bodel was of the view her injury is in the nature of a disease process. That much is made clear by Dr Bodel’s comment in his report dated 23 June 2020 to the applicant’s solicitors in which he was asked whether, if the applicant was suffering from a degenerative condition, whether her employment with the respondent was the main contributing factor to either causing or aggravating that condition. The doctor was of the view that that employment was the main contributing factor to the aggravation of a disease process, namely lateral epicondylar discomfort in the region of the left elbow.
Dr Bodel was also cognisant of the presence of a tear, and did not rule out an injury in the nature of a disease process having caused that tear.
Additionally, in his report dated 25 July 2022, Dr Bodel referred to;
“a history of gradual onset of arm pain involving the hole of the left arm, mainly in the elbow initially and that later spread to the hand onto the left shoulder. This occurred as a result of the nature and conditions of her work as a cleaner at the Bulli Hospital.”

When addressing the effect of any subsequent employment on the applicant’s injury, Dr Bodel indicated that there may have been a temporary aggravation;
“of the disease process at her place of employment at Figtree Hospital. However, the underlying pathology instigated that the Bulli Hospital persists to this day. It is likely now that she has ceased this type of work, that the aggravation at the Figtree Hospital was temporary and her current symptoms relate to her original injury.”
The argument that the effects of an aggravation are temporary and have passed is one which is commonly seen in the Commission, however, it is usually a proposition advanced by medical experts retained by respondents. Nevertheless, absent an explanation which clearly sets out why the mere cessation of work would lead to the effects of any aggravation having ceased, such a contention can best be categorised as a bare ipse dixit statement.
In order for such a proposition to be accepted, it is necessary for there to be some explanation of the basis upon which the opinion has been made. This is particularly the case where, on balance, the preponderance of the medical evidence demonstrates the applicant’s symptoms were aggravated when she commenced employment with Ramsey Health and that aggravation and worsening of symptoms has in fact persisted. The applicant’s own statement makes as much clear. I have no difficulty in accepting the applicant as a witness of truth, noting there is no attack on her credit. Indeed, the applicant’s symptoms after and including her work at Figtree Private Hospital were sufficiently serious that she required surgery as recommended by Dr Jansen which she underwent on 14 October 2020.
Objective support for the proposition that the applicant’s injury was worsened by her employment with Ramsey Health after the onset of the original injury is found in the ultrasound of her left elbow (wrongly identified as her right elbow) undertaken on 8 July 2019. The report of that investigation clearly states that in comparison with previous examination, the tear in the applicant’s extensor and radial collateral ligament had worsened. As Mr Young noted, that is a pathological change which objectively supports a subsequent aggravation of a long lasting and permanent nature in the subsequent employment with Ramsey Health, rather than one of a temporary nature.
As noted by the respondent’s IME Dr Cadden in his report dated 20 December 2022:
“On the balance probabilities, with symptoms being described being present prior to the employment with Figtree Private, further aggravation would have been caused by her work activity. Her symptoms have remained present after stopping employment, but an exact time of the onset of the shoulder limitation or worsening during or after employment at Figtree Private was not given. There was no provided documentation of symptoms with her GP or Dr Jansen to also determine onset, severity or decline in the motion. It would be implied that aggravation can have occurred during her time of employment with Figtree, and based on that assumption, a 50% apportion can be applied to the impairment of the left shoulder for work with Figtree Private Hospital.”
That report was provided by Dr Cadden at the request of the respondent’s solicitors after his initial report dated 7 December 2022 indicated the applicant had been experiencing symptoms to her left shoulder and arm prior to her employment with Ramsey Health, and the ongoing symptoms could therefore be related to her original employment. It was only after Dr Cadden reviewed additional documentation that he changed his view, noting there was an increase in the applicant’s symptoms during her work with Ramsey Health.
I do not accept that Dr Cadden changing his opinion in circumstances where additional documentation provides context for the additional onset of the applicant’s complaints to be worthy of criticism. Rather, his change of view is, in my view, appropriate in the circumstances.
On balance, I am satisfied that the preponderance of the medical evidence supports a finding that the applicant’s injury is in the nature of a disease of gradual onset. I am also satisfied that her subsequent employment at Figtree Private Hospital whose employment was a substantial contributing factor to the aggravation of her condition.
Ramsey Health is not a party to these proceedings. Having found the applicant’s employment with that entity was causative of an aggravation to an injury in the nature of a disease process, it follows that the respondent was not the last employer who employed the applicant in employment to the nature of which the disease is due.
This being so, despite the applicant plainly suffering issues with her left upper extremity as a result of a work-related injury, there is no alternative other than to make an award in favour of the respondent.
Given that my findings in relation to the question of liability for payment of compensation in relation to the injury suffered by the applicant, it is not necessary to determine in these proceedings whether the consequential conditions to the hand and wrist which are in dispute were in fact cause as a consequence of that injury. It follows that if there is no compensation payable for the primary injury suffered, there can be no compensation payable for any conditions consequent upon that injury.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page one of the Certificate of Determination.

[2024] NSWPIC 52

9 February 2024