Risteski v Bunnings Group Ltd
[2021] NSWPIC 261
•27 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Risteski v Bunnings Group Ltd [2021] NSWPIC 261 |
| APPLICANT: | Steve Risteski |
| RESPONDENT: | Bunnings Group Ltd |
| MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 27 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Claim for permanent impairment compensation as a result of accepted injury to right shoulder and consequential condition of left shoulder; change of duties after two surgical procedures to right shoulder; respondent disputed consequential condition and that injury to the left shoulder was due to the nature and conditions of employment; applicant did not rely on nature and conditions of employment, but on consequential condition only; Kumar v Royal Comfort Bedding; and Kooragang Cement Pty Ltd v Bates considered; Held- the applicant sustained a consequential condition of his left shoulder as a result of accepted injury to his right shoulder; matter remitted to President for referral to Medical Assessor for assessment of permanent impairment as a result of injury to right upper extremity (right shoulder) and left upper extremity (left shoulder). |
| DETERMINATIONS MADE: | 1. That the matter is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment as a result of injury to the right upper extremity (right shoulder) and left upper extremity (left shoulder) on 17 August 2016. 2. That the Medical Assessor is to be provided with the following: (a) the Application to Resolve a Dispute and attachments; (b) the Reply and attachments, and (c) a copy of the email from the applicant’s solicitors to the respondent’s solicitors dated 25 May 2021. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Steve Risteski (Mr Risteski) is employed by the respondent, Bunnings Group Ltd (Bunnings), currently as a team member in the building department at its Narellan store.
Mr Risteski sustained an accepted injury to his right shoulder on 17 August 2016. He claims to have sustained a consequential condition of his left shoulder as a result of the injury to his right shoulder.
On 4 January 2017, the respondent completed a Notification of Injury/Illness (the Notification) to its workers’ compensation insurer, GIO.
The Notification stated that on 17 August 2016, the applicant sustained an injury described as “R shoulder olecranon bursitis & R acromioclavicular joint pain”. The injury occurred when the “TM” (team member) was lifting “hot water” [services] from the floor to the Wave machine platform. It was noted that the product stated it was a two-person lift, and the item’s gross weight was 25 kg. The injury had been reported on 4 January 2017.
By letter dated 21 December 2020, the applicant’s solicitors made on his behalf a claim for permanent impairment compensation, pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act). The applicant claimed the sum of $22,770 in respect of 11% whole person impairment (WPI) as a result of injury to his right shoulder on 17 August 2016 “and due to the nature and conditions of his employment requiring heavy lifting, left shoulder injury being due to the nature and conditions of employment and also consequential to right shoulder injury”.
On 1 April 2021, GIO issued the applicant with a notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It disputed that Mr Risteski was entitled to permanent impairment compensation for injury on 17 August 2016.
The notice disputed that the applicant’s injury was “covered by workers’ compensation as required by section 4” of the 1987 Act; that his claimed consequential condition resulted from his accepted injury “as required by section 66(1)” of the 1987 Act; and that he was entitled to permanent impairment compensation because his accepted physical injury had not resulted in more than 10% permanent impairment, as required by section 66(1) of the 1987 Act. The notice also disputed that the applicant’s right shoulder injury or his left shoulder injury arose from the nature and conditions of work, so the claim was declined under sections 4 and 9A of the 1987 Act.
The applicant lodged an Application to Resolve a Dispute (the Application) on 20 April 2021. He claimed to have sustained right shoulder injury on 17 August 2016 “from repetitive manual lifting of hot water systems then a few days later of flat pack kitchen cabinets in the alternative/in addition injury due to the nature and conditions of employment requiring repetitive heavy lifting”; and left shoulder injury “due to the nature and conditions of employment requiring repetitive heavy lifting and in the alternative/in addition injury consequential to right shoulder injury”.
The applicant claimed the sum of $22,770 in respect of 11% WPI as a result of injury to the left upper extremity and right upper extremity on 17 August 2016.
The respondent lodged its Reply on 12 May 2021.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant suffers a consequential condition of his left shoulder as a result of the accepted injury to his right shoulder, and
(b) as submitted by the respondent, it accepts that the applicant sustained injury to his right shoulder as a result of the injury on 17 August 2016, but not as a result of the nature and conditions of his employment.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for telephone conference on 19 May 2021. After some discussion regarding the pleadings with respect to injury, the applicant was directed that on or before 26 May 2021, he was to provide the respondent with particulars of the proposed amendments to the Application. The respondent was granted liberty to request a further telephone conference by 2 June 2021, should that be required as a result.
On 25 May 2021, the applicant’s solicitors advised the respondent’s solicitors by email that the applicant proposed to amend the Application as follows:
“Date of Injury: 17/8/2016
Injury Description/Cause of Injury: Right shoulder injury from repetitive manual lifting.
Left shoulder injury consequential to right shoulder injury.”The matter was listed for conciliation/arbitration hearing by telephone on 12 July 2021. Mr Stockley of counsel, instructed by Ms Bowrey, appeared for the applicant, who was present. Ms Goodman of counsel appeared for the respondent, instructed by Mr Orr. Mr Lassig of GIO was also present.
The Application was amended without objection in accordance with the amendments notified to the respondent on 25 May 2021. The respondent referred to the section 78 notice, confirming that a claim with respect to injury to the right shoulder as a result of the nature and conditions of employment was disputed.
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.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) the Application and attachments;
(b) Reply and attachments, and
(c) copy of an email from the applicant’s solicitors to the respondent’s solicitors dated 25 May 2021, notifying it of proposed amendments to the Application.
Oral evidence
There was no application by either party to cross-examine any witness or call oral evidence.
FINDINGS AND REASONS
Evidence of the applicant, Steve Risteski
On 14 April 2021, Mr Risteski stated that he has been employed by Bunnings since 29 March 2011. He had undergone a right wrist fusion as a result of an injury in another job, before starting work for Bunnings, but did not recall any past problems with his shoulders.
Mr Risteski was previously a department manager at Bunnings in Mittagong. He had been a team member at Narellan, in the building department, since 2019. He has provided details of his work at Mittagong, which it is unnecessary to repeat, given that he does not rely in this matter on the nature and conditions of his employment. He had often had bumps, scratches and muscle strains. He had not always reported them but had sometimes gone to the doctor.
The applicant had been shown his general practitioner’s file, which was attached to the notice denying liability for injury to his left shoulder. He recalled lifting a piece of MDF board. 2,400 x 1,200 from the third shelf off the floor while standing on a ladder in 2012, when he hurt his left shoulder. He did not believe he hurt it fishing – it hurt when he was fishing after that incident. He did not recall a second incident, as described in the GP’s notes, and thought he was mistaken.
The applicant had some time off but could not remember particular problems with his left shoulder for about seven years after that. He definitely had problems with it after he went back to work after his right shoulder operations in 2017 and 2018.
Mr Risteski hurt his right shoulder at work in August 2016 when he had to lift about four or five hot water systems, one after the other, each one weighing 25 kg in the box. He lifted each from the floor to the table of the Wave machine, which is like a jack. The Wave machine lifts them to the racking, but he had to lift them to the table of the machine, which is about 1,200 to 1,400 mm high. He kept working but sometime after that, had to lift “a whole lot of flatpack kitchen cabinets” and his right shoulder became worse. He eventually went to his GP toward the end of 2016.
On the day of the incident with the hot water systems the office manager, “Kelly”, at Mittagong told the applicant not to see a doctor, but to take Panadol, take time off “and see how you go”. She rang the next day and said to take more time off, but not to see a doctor. He thought he saw the GP and got Panadol Forte but did not make a claim for several months “because of the attitude from work”.
The applicant went back to work and aggravated his right shoulder putting away stock. Kelly again told him not to see a doctor but not to lift anything for a while. This happened multiple times, until he “had to get it looked at” because he couldn’t bear the pain any more.
The applicant’s GP, Dr Rahman, sent him for a scan of his right shoulder, and he put in a claim, which was accepted. The pain got better for a while when he was off work but came back when he went back to work. The GP sent him to Dr Vera Kinzel, who operated on his shoulder.
The applicant’s first right shoulder operation was on 6 April 2017. He did physiotherapy and home exercises and went back to work, starting with smaller hours and not using his right arm.
By the middle of 2017, the applicant was still having a fair bit of pain in his right shoulder and trying to keep going at work. His right shoulder was sore, he had pins and needles, and it wouldn’t move properly. He tried to increase the amount he could lift and continued physiotherapy throughout 2017.
The applicant had some time off in 2018 with pneumonia. He tried to get back to his pre-injury duties and in about September 2018, moved to the Narellan store, which had more supportive management.
In December 2018, Dr Kinzel performed a second operation to take out a screw that had failed. She advised him that he should never again lift heavy objects with his right arm or lift it above shoulder height.
After the second operation, the applicant’s left shoulder started to really hurt. When he went back to work, he was given gate keeper duties. This required him to open and shut customers’ boots, hatchbacks and toolboxes to check for stolen items. That was fairly constant over an eight-hour shift. He had to lift with his left hand because of weakness and pain in his right shoulder. Typically, the boots and hatches were not hydraulic, so they were quite heavy. He was not provided with any assistance. From the start of the gate keeper duties, he started feeling pain in his left shoulder.
The applicant realised that if he did not continue with those duties, he would probably lose his job. The left shoulder pain eventually got so severe that he went to see Dr Rahman in the middle of 2020, and he sent Mr Risteski back to Dr Kinzel.
The applicant treated his left shoulder pain with Panadol and Nurofen and still did that. He sometimes took Codeine. He had a steroid injection in the left shoulder in 2020, which helped, but then wore off.
Dr Kinzel told the applicant he shouldn’t do work where he had to open and shut car boots and heavy toolboxes all day, using only his left hand. She gave him a letter to that effect to hand in at work. He didn’t hand it in because he believed he would have been sacked if he did.
The applicant’s left shoulder gave him more pain than his right. He did not have full strength or range of motion in either shoulder. He could no longer do the mowing or maintain his house, and his family did a lot of the chores he used to do. He could not go fishing, do water sports or swim, and could drive only two hours a day. He had trouble washing himself as his shoulders did not move freely and were painful. He could not lift anything with weight above shoulder height, with either arm, and was not supposed to lift more than 10 kg doublehanded.
The applicant believed that his heavy work duties over the last 10 years with Bunnings had injured both his shoulders.
Medical evidence
Hill Top Surgery – General Practitioners
The surgery’s records are in evidence. The applicant has mainly consulted Dr Rahman but has at various times consulted other doctors in the practice.
On 1 May 2012, Dr Jason Sison recorded that the applicant had been fly fishing three weeks ago. Left shoulder pain started two days later and subsided after one week. It recurred on 28 April 2012, when he was bringing something down from a shelf at work. He had taken Panadol, Nurofen and Voltaren for one week without relief. The treatment plan was for left shoulder ultrasound with “+/- steroid injection to joint”.
On 4 May 2012, Dr Clive Cawthorne recorded that the ultrasound showed synovitis in the left AC (acromioclavicular) joint, plus partial thickness tear in the anterior two thirds of the supraspinatus tendon. There was tenderness on examination, with swelling of the left AC joint, no real tenderness in the lateral shoulder, and tenderness above the scapula medially. The applicant said the pain came on when lifting a 2.4 x 1.2 MDF board. He “felt like crunch on upper shoulder with heat like a tear”. A WorkCover initial certificate was created.
Dr Cawthorne recorded on 10 May 2012 that the applicant was improving. He had full movement, was less tender at the AC joint and had slight pain at 110 degrees abduction. He was certified fit for selected duties from 11 May 2012 to 17 May 2012.
On 17 May 2012, Dr Cawthorne recorded that the applicant was OK until yesterday, with pain for the last four hours. He was tender around the AC joint and the anterior shoulder. He was again certified fit for selected duties, from 18 May 2012 to 24 May 2012.
The applicant continued to consult Dr Cawthorne, and also Dr Stephen Clarke, about his left shoulder in May 2012. On 22 June 2012, Dr Cawthorne recorded that he felt he could do all work. There was no tenderness and full movement on examination. The applicant was certified fit for pre-injury duties.
On 5 July 2012, Dr Cawthorne recorded that “all OK at work”. The applicant was issued with a final workers’ compensation certificate.
On 15 December 2016, Dr Rahman recorded that the applicant had pain in the right shoulder that happened in August at work, when he was lifting a heavy object. Dr Rahman noted “?A/C joint disruption” and “(Rotator cuff tear?)”.
On 19 December 2016, Dr Rahman recorded that x-ray showed AC joint degenerative arthritis, worse in the right side; and ultrasound showed right acromial bursitis, which was treated with cortisone injection.
The applicant’s shoulder was “not getting better” and on 4 February 2017 Dr Cawthorne recorded that he had seen Dr Kinzel two weeks ago and surgery had been recommended.
Dr Rahman recorded on 22 April 2017 that the applicant had a right shoulder operation on 7 April 2017.
On 28 April 2017, Dr Rahman recorded that the applicant’s shoulder pain was the same. He had a graduated back to work plan and was not to use his right hand.
On 9 June 2017, Dr Rahman recorded that the pain in the applicant’s right shoulder was not getting better. His range had improved a little. He was tender over the AC joint area. He was to see Dr Kinzel on 20 June 2017.
The applicant continued to consult Dr Rahman with right shoulder pain. On 27 July 2017 he reported tingling in the right shoulder after hydrotherapy. His movement and pain were not getting better. MRI showed bursitis as the likely cause of the pain.
On 11 August 2017, Dr Rahman recorded that the applicant had seen Dr Kinzel “last week”. His shoulder pain was better after taking Mobic. Dr Kinzel had advised him to lift two kg in one hand and four kg with two hands. He could work full time. His movement was also better, with some restriction on abduction, up to 90 degrees. He was advised not to lift his arm above the shoulder.
On 13 November 2017, Dr Rahman recorded that the applicant’s shoulder pain was better. He was advised “no lifting above shoulder”. He was to lift four kg in each hand for three months and then six kg. There was some restriction of movement.
Dr Rahman recorded on 11 December 2017 that the applicant had been doing work lifting light weights. He had seen Dr Kinzel and was advised to lift four kg, with no overhead lifting.
By 15 January 2018, the applicant’s shoulder was “good”. He was lifting up to four to eight kg and was to see Dr Kinzel in May. He was to increase lifting to six to 12 kg.
The applicant continued to consult Dr Rahman with shoulder pain. On 2 March 2018, although the reason for his visit was recorded as pneumonia, Dr Rahman noted that the results of both shoulders and AC joints x-ray and right shoulder ultrasound were given to him. He had been admitted to hospital with pneumonia.
On 20 April 2018, Dr Rahman recorded that the applicant could lift eight kg in each hand and wanted to trial pre-injury duties. He was to see Dr Kinzel on 10 May 2018.
Dr Rahman recorded on 18 May 2018 that Dr Kinzel was happy with the applicant’s progress and he was doing normal duties.
On 9 June 2018, Dr Rahman recorded that the applicant came to change the official certificate given to Bunnings. Dr Rahman advised that until Bunnings asked for clarification of the certificate, he could not change anything. The applicant wanted a WorkCover certificate for workplace harassment. Dr Raman advised that he would have to discuss it with his indemnity insurance before doing this.
Dr Rahman recorded on 27 June 2018 that the applicant “got dismissed” and had been feeling anxious and depressed.
On 25 September 2018, Dr Rahman recorded that the applicant had started work in Narellan and had been feeling good. His anxiety and sleeping were better. He could trial full duties.
The applicant had shoulder surgery in December 2018 and consulted Dr Rahman and Dr Chirath Wijesurendere post-surgery.
On 6 February 2019, Dr Rahman recorded that the applicant had seen Dr Kinzel and was advised to try light duties. He had nil pain and range of movement was mildly restricted in above shoulder movement and extension.
Dr Rahman recorded on 25 February 2019 that the applicant had had a second operation to take the loose screw out. “There is a labrum tear”, which Dr Kinzel had not mentioned. The applicant was to see her on 28 February 2019 and would discuss this with her.
On 11 March 2019, Dr Rahman recorded that the applicant had seen Dr Kinzel and the labral tear had been done during the operation. He had been advised not to lift anything above the shoulder for the rest of his life. He was not to lift his right hand above the shoulder during physiotherapy, “but no letter has been received from Dr Kinzel.”
On 6 April 2019, Dr Rahman recorded that the applicant had been advised by Dr Kinzel to lift less than three kg above the shoulder and not to do heavy lifting.
Dr Rahman recorded on 6 June 2019 that the applicant had reached maximum improvement and Dr Kinzel had advised restricted weight lifting for the rest of his life.
The applicant consulted the practice for various other matters. Dr Rahman recorded on 16 March 2020 that he had been working OK in Narellan.
On 10 June 2020, the applicant consulted Dr Rahman about neck and ear pain. Dr Rahman recorded “also the left shoulder is painful to move”. The applicant was to see Dr Kinzel. Dr Rahman provided a referral, noting that the applicant had pain in the left shoulder, “as he is using this hand more”.
Dr Vera Kinzel – Orthopaedic Surgeon
Dr Kinzel reported to Dr Rahman first on 19 January 2017. She recorded a history that the applicant was lifting a 15-litre machine six months ago at work, when he experienced right shoulder pain. He took a week off work. Since this incident, his shoulder had “given him grief” but he tried to ignore the symptoms. The pain deteriorated further after he lifted a wardrobe in December 2016.
Dr Kinzel requested an MRI scan to establish the extent of the osteolysis and to see if there was a further underlying rotator cuff injury. She opined that the applicant would most certainly require an AC joint resection “+ - a rotator cuff repair”.
On 2 February 2017, Dr Kinzel reported that the applicant’s MRI scan showed his AC joint was severely diseased, causing impingement on the rotator cuff, as well as irritation of his biceps tendon. The biceps showed quite a large fluid collection. A further incidental finding was AVN (avascular necrosis) of his humeral head, with no loose sequestrum.
Dr Kinzel described the applicant as a challenging patient. On clinical grounds his AC joint was troubling him. He did not have any intra articular clinical signs. Dr Kinzel wished to proceed with an excision of his distal clavicle and a subacromial decompression, with possible rotator cuff reconstruction. She did, however, wish to discuss this with a colleague.
Dr Kinzel reported on 16 December 2017 that she had discussed the applicant’s case with Dr David Duckworth. He agreed it was necessary to address the AC joint and do a subacromial excision of the distal clavicle. The AVN needed to be watched and a repeat MRI was warranted in six months.
On 31 March 2017, Dr Kinzel responded to a request from GIO for information about the proposed surgery.
The diagnosis was AC joint osteolysis of the right shoulder. The applicant had injured his shoulder loading a top shelf in August 2016. It never recovered, but his symptoms improved until December, when he had to move a large wardrobe.
Dr Kinzel reported that symptomatic osteolysis is often triggered by a fall on the shoulder or heavy lifting. The applicant’s history was in keeping with his clinical presentation and employment at Bunnings was “a sole contributing factor to his current status”.
The applicant had a permanent aggravation of osteolysis of his AC joint. He was not responding to non-operative treatment and required an AC joint resection. Dr Kinzel anticipated a return to full working capacity three months post-surgery. She did not anticipate Mr Risteski would require further surgery.
Dr Kinzel performed the surgery on 6 April 2017. She continued to review the applicant and on 10 August 2017 was “delighted” that his shoulder was much improved, with a full range of motion. She thought he was ready to increase his workload and start lifting on the right with two kg restrictions for a further three months.
On 9 November 2017, Dr Kinzel reported that the applicant’s shoulder was steadily improving, and he had further improved his range of motion. He found it difficult to do heavy overhead lifting, and she asked him to abstain from this. He was lifting two kg, which could be increased to four kg, with a limitation of no overhead work. Dr Kinzel wished to see him again in six months with a repeat MRI scan.
On 10 May 2018, Dr Kinzel reported that the applicant had returned to his pre-injury hours and duties. His shoulder was “holding up”. He had occasional irritation but overall was doing well. The AVN of his humeral head had not progressed.
The applicant was again reviewed by Dr Kinzel on 22 November 2018.Overall, his shoulder was “holding up”, but he had definite irritation of his AC joint with prolonged lifting. It flared his shoulder up for 24 hours before it settled. On examination, he had an excellent range of motion but there was some crunching over the AC joint, which was tender on firm palpation.
Dr Kinzel had requested a cortisone injection, which she hoped would settle the applicant’s remaining symptoms. If this was unsuccessful, she opined that he might require a further radical resection.
On 6 December 2018, Dr Kinzel reported that the applicant’s recent ultrasound showed that a screw had migrated into his subacromial space, which would explain his symptoms when trying to anteflex or abduct his shoulder. He would require an arthroscopy to remove the loose screw.
Dr Kinzel performed the surgery on 13 December 2018. She reported on 19 December 2018 that the applicant was doing well. He had a full range of motion, and no impingement feeling or sharp pain on range. He was to restart physiotherapy and was allowed to use his shoulder as desired.
On 17 January 2019, Dr Kinzel reported that the applicant was much improved since his screw was removed. He still had a bit of inflammation pain, for which he took anti-inflammatories. He had a full range of motion. He was working closely with the physiotherapist to overcome residual pain and build up his strength.
Dr Kinzel reported on 28 February 2019 that the applicant’s shoulder overall was “holding up”, but he had problems with overhead activities. He found it difficult to load and described a click and some fatigue pain. He had a fully preserved range of motion, but pressing and overhead activities caused some discomfort. His rotator cuff was otherwise good.
Dr Kinzel opined that the applicant would probably never be a candidate to return to heavy overhead lifting. She supported increasing his lifting capacities over the next few months, but he should abstain from heavy overhead lifting. She recommended that he stay at less than three kg when overhead lifting. As he also had AVN affecting parts of his humeral head, he also should not do any heavy lifting. He had undergone biceps tenodesis to address the superior labral tear. Labral tears still existed on the MRI scan, which was normal.
On 12 September 2019, Dr Kinzel reported that the applicant had undergone further MRI scan. It again showed the AVN area, but no change in size. Mr Risteski’s symptoms were unchanged. He had made workplace adjustment, with light lifting, but was not participating in any overhead loading. Dr Kinzel wished to see him in a year’s time with a repeat x-ray, “to keep an eye on his AVN”.
On 13 August 2020, Dr Kinzel reported that the applicant’s right shoulder was troubling him more. He had noticed clicking and pain, especially on end range movement. This had triggered pain in his left shoulder, where he was experiencing over-compensatory pain.
On examination, the applicant had a fully preserved range of motion, but there was crepitus and pain on end range anteflexion. His rotator cuff strength remained good. His left shoulder had a good range of motion but showed an irritable rotator cuff.
Dr Kinzel had requested MRI scans of both shoulders and x-rays to ensure the AVN of the applicant’s right shoulder had not further progressed. She was also assessing his left shoulder to establish if he had developed cuff tendinopathy.
On 17 September 2020, Dr Kinzel reported, following the applicant’s MRI scans of both shoulders. The old AVN area in his right shoulder remained stable. His humeral head was maintaining its shape and not collapsing. His rotator cuff tendons appeared healthy. The applicant had a very small area of AVN in his left shoulder, without any separation. He had tendinitis of his left shoulder.
Dr Kinzel had requested subacromial injection of the applicant’s left shoulder. He was to continue with strengthening exercises for his right shoulder.
On 15 October 2020, Dr Kinzel reported that the applicant’s last cortisone injection gave him some relief. She recorded a history that his shoulder gave him no trouble on weekends, but when he had to lift and open gates, which he did at Bunnings, he did get symptoms. He was also developing an over-compensatory injury to his left shoulder, as he was not allowed to work with his right.
Dr Kinzel suggested that the applicant’s duties be reviewed. He should be moved to a section where he could perform lighter duties and was not required to manoeuvre heavy gates, as he had an underlying AVN that would cause him further trouble in the future. She wished to review him in three months.
Dr Raymond Wallace – Orthopaedic Surgeon
Dr Wallace was qualified by the respondent and reported first on 29 March 2017.
Dr Wallace recorded a consistent history of the injury to the applicant’s right shoulder on 17 August 2016. He reported the incident but continued to work at light duties and did not seek medical review or undergo treatment. On 14 December 2016, he noted aggravation of his right shoulder pain while lifting a flat pack wardrobe. It was then that he sought treatment.
Dr Wallace referred to the applicant’s subsequent treatment and investigations. He noted that Dr Kinzel had recommended surgery, for which the applicant was awaiting approval.
The applicant was working full-time on light duties, with a lifting restriction of 10 kg and no overhead lifting with his right arm. He was right hand dominant.
Dr Wallace diagnosed aggravation of pre-existing degenerative osteoarthritis of the AC joint of the right shoulder; and aggravation of pre-existing degenerative osteoarthritis of the gleno-humeral joint of the right shoulder. The applicant’s employment was a substantial contributing factor to his right shoulder condition.
Dr Wallace agreed that the applicant would benefit from the surgery proposed by Dr Kinzel. He had a good prognosis for recovery of function at the right shoulder to pre-injury level after successful surgery. He would be unfit for work for two weeks, after which he could return to part-time to full-time light duties over the following 10 weeks. During that time, he would be unfit for activities requiring repetitive lifting above 5 kg with his right arm, overhead use of his right arm, working in confined spaces, at heights or on ladders. He would be fit for a trial of pre-injury duties 12 weeks post-surgery.
Dr Wallace again reported on 4 February 2021. He noted that the applicant underwent arthroscopic debridement at the right shoulder with excision of the distal clavicle and biceps tenodesis on 6 April 2017.
The applicant had noted aggravation of right shoulder pain in December 2018, without a history of further injury. He underwent arthroscopic debridement and removal of a screw. He had a further four-week course of physiotherapy, but no further treatment for his right shoulder condition.
Dr Wallace recorded that the applicant noted the onset of left shoulder pain in February 2020, while working as a gate keeper. He had to inspect vehicles for stolen goods and was repetitively lifting up boots.
The applicant was reviewed by Dr Rahman and referred to Dr Kinzel. MRI of his left shoulder showed evidence of mild rotator cuff tendinosis with an antero-inferior labral tear. He underwent a cortico-steroid injection in his left shoulder in October 2020, with some relief of pain in the following fortnight. He had had no further treatment of his left shoulder.
The applicant complained of daily mild intermittent aching pain at the AC joint of his left shoulder. The pain was worse on internal rotation or lifting overhead, and relieved by rest. He noted no paraesthesia or numbness of either arm but complained of weakness of his left arm. He noted no stiffness at the left shoulder and no current pain at the right shoulder joint but complained of weakness of the right arm and difficulty lifting heavy objects. He noted reduced range of movement in abduction.
Dr Wallace recorded that the applicant was continuing full time duties as a gate keeper, with restrictions including no overhead lifting and no lifting over 10 kg. He conducted an examination and reviewed the applicant’s investigations. His diagnosis remained unchanged.
Dr Wallace opined that the applicant’s right shoulder condition was due to his work injury, with a proportion being due to pre-existing degenerative osteoarthritis; and his employment with Bunnings was a substantial contributing factor to his condition.
As regards the applicant’s left shoulder, Dr Wallace opined that there was no objective medical evidence that he suffered any work-related injury. The nature and conditions of employment as a gate keeper in 2020 were not consistent with being the cause of any significant left shoulder pathology. His left shoulder symptoms were due to age-related degenerative rotator cuff tendinopathy at the joint and degenerative labral tear. He would have noted the onset of left shoulder symptoms at about the same time or at the same stage of his life had he not been at work or employed by Bunnings. His employment with Bunnings was not a substantial contributing factor to any current left shoulder condition.
Dr Wallace opined that there was no objective medical evidence that an injury to one upper limb may cause an injury in the opposite limb by way of “overuse”. He referred to the American Medical Association Guides to Evaluation of Disease and Injury Causation (AMA Guides), where the authors conclude “The concept that favouring one upper limb can result in injury or illness in the other is not based on scientific evidence. Instead, it is an unsupportable myth.”
Dr Wallace assessed 6% WPI as a result of injury to the applicant’s right upper extremity (shoulder) and TEMSKI scarring.
Dr Gregg Burrow – Orthopaedic Surgeon
Dr Burrow was qualified by the applicant and reported on 24 November 2020.
Dr Burrow recorded a history that on 17 August 2016, the applicant was lifting five 60 litre
(60 kg) hot water systems when he had marked first time right shoulder pain. He was also manipulating flat pack cabinets weighing 40 kg. Dr Burrow then noted the history of treatment at the hands of Drs Rahman and Kinzel.
The applicant had returned to work after the second surgery as a gate keeper. Dr Burrow noted he had had recurrent right shoulder [assumed to mean pain/symptoms] but also complained to Dr Kinzel in October 2020 of increasing left shoulder problems, with pain associated with overhead use and heavy lifting at work as a gate keeper. Dr Kinzel had reported that the applicant’s left shoulder condition was due to an “over compensatory injury”.
Dr Burrow did not have the x-rays and scans that were performed in 2020. He noted that the applicant had a left shoulder steroid injection in October that improved his pain for several weeks. On returning to gate keeper duties, heavy lifting and overhead use, he had recurrent left shoulder pain. He had had no further treatment.
The applicant complained of anterolateral right shoulder pain, worse with use above shoulder height, describing the pain as “stiffness”. He noticed clicking within the shoulder or AC joint. It was painful lying on his side at night. His left shoulder was similarly painful, worse with overhead use, but there was no crepitus. He denied neurovascular symptoms.
Dr Burrow noted that the applicant suffered a traumatic injury to his right shoulder in August 2016. He underwent surgery, which was complicated by failure of the biceps tenodesis screw, requiring secondary surgery in December 2018. No further surgery was planned. Dr Burrow opined that the AVN may deteriorate with time if it is not fully healed, secondary glenohumeral arthritis will supervene and the applicant may need shoulder replacement. If this was to occur, it is due to the constitutional [AVN] and not due to the work condition, per se. (Emphasis in original).
Dr Burrow further noted that, since his right shoulder surgery, Mr Risteski was in a new job where he had to lift car boots and manipulate heavy toolboxes. He had noted increasing pain in the left shoulder. He had apparently had a steroid injection and imaging that was not available. The exact diagnosis was unknown to Dr Burrow but could well be simple impingement.
Dr Burrow opined that the applicant’s left shoulder had become symptomatic due to the nature and conditions of employment over a prolonged period, but also the recent heavy lifting activities required when protecting his right shoulder.
When asked whether the applicant had developed an injury to his left shoulder as a consequence of overuse because of his incapacity and injury to his right shoulder, Dr Burrow responded
“Yes, partly but also due to the nature and conditions of employment where he has used the left shoulder to manipulate heavy weights in cars and lift car boots. I suspect there may be also some wear and tear from a lifetime of heavy lifting, particularly more than 9 ½ years of work at Bunnings.”
Dr Burrow had some concerns that the applicant’s original symptoms could possibly have come from the AVN, but noted Dr Kinzel’s findings, and that she is an experienced orthopaedic and shoulder surgeon. The applicant’s left shoulder had not been specifically diagnosed to date and required clarification and ongoing management from Dr Kinzel.
Dr Burrow assessed 11% WPI as a result of injury to the applicant’s right upper extremity (shoulder) and left upper extremity (shoulder)
SUBMISSIONS
The parties’ submissions have been recorded and I will therefore summarise them only briefly.
Applicant
The applicant referred to his evidence of the circumstances in which he developed pain in his left shoulder, and what is involved in his gate keeper duties. He had described it to Dr Rahman and Dr Kinzel. Dr Kinzel described it as “overcompensating pain”, and he submitted that is his case. Dr Burrow also recorded a history of increasing problems with his left shoulder, associated with overhead use and heavy lifting. He thought the diagnosis was unknown, but the applicant referred in this regard to Dr Kinzel’s evidence.
The applicant submitted he is not running a “nature and conditions” case, but one of recent heavy lifting with protection of his right shoulder. His case is supported by Dr Burrow. The contradictor is Dr Wallace, whose first report pre-dates the onset of symptoms. His second report notes the onset of symptoms while the applicant was working as a gate keeper.
The applicant referred to Dr Wallace’s opinion that employment was not a substantial contributing factor to the injury. He submitted that would be the appropriate test if there was an allegation of an injury per se. However, what is being considered is the connection between his left shoulder condition and his accepted injury.
The applicant submitted that I have a largely uncontroversial history of the onset of left shoulder symptoms, associated with the work he did after the surgery, reliance on his left arm, and Dr Kinzel inculpating his right shoulder, supported by Dr Burrow. Dr Wallace’s opinion is that this is an unsupported myth. There is no reference to who wrote the quote on which he relied, or when it was written.
The applicant submitted that part of the problem with Dr Wallace’s evidence is the misunderstanding of the claim being made. He submitted that I would not accept what Dr Wallace says, but even if I do, it is not clear what he means by “objective medical evidence” of injury to his left shoulder.
The applicant’s primary submission was that Dr Wallace’s failure to engage with the real issue marginalises its relevance. He says “overuse” injuries such as this do not exist, but the applicant compared Dr Kinzel’s evidence. She expressed her opinion before it was ever an issue for the insurer or the Commission. He submitted I would prefer her opinion and that of Dr Burrow.
The applicant finally submitted that the Commission has some latitude in informing itself about matters before it. He invited me to investigate what the AMA Guides said if I were the least bit troubled. He submitted I would find it is not a work of authority in determining the question before me.
In reply to the respondent, the applicant submitted that his case is one of gradual development of left shoulder symptoms as a result of his right shoulder injury and gate keeper duties. It is therefore not surprising that there are no clinical records at the outset.
There is no challenge to the evidence that after the 2018 surgery, the applicant was relying on his left arm for energetic activities and duties. He does not rely on nature and conditions, but on the inevitable consequence of the change in his duties, relying exclusively on his left arm and shoulder. Drs Kinzel and Burrow have no real issue with this.
The applicant submitted that the evidence is sufficient to persuade me that he has a condition that is related to his accepted injury.
Respondent
The respondent submitted that the document referred to by Dr Wallace is not the one used for the evaluation of WPI in the Commission.
The respondent referred to the applicant’s evidence. It submitted he has not explained why, when his second operation was in 2018, he had not complained of problems with his left shoulder until he started the gate keeper duties.
The respondent submitted that Dr Burrow has referred to the nature and conditions of employment also having caused the applicant’s problems. It referred to the Notification. The frank injury on 17 August 2016 is the injury accepted by the insurer. It has disputed liability for the nature and conditions of employment.
The respondent referred to Dr Burrow’s evidence. It submitted his opinion is quite clear that the nature and conditions of employment have caused the applicant’s left shoulder symptoms, but there was also a consequential aspect. He did not appear to be aware of the applicant’s previous left shoulder problems in 2012, when he had a partial tear. The respondent referred to the clinical records of Hill Top Surgery. He was still complaining of his left shoulder on 8 June 2012. This was not insignificant and does not appear to have been disclosed to Dr Burrow, Dr Kinzel or Dr Wallace.
The respondent submitted that the medical certificate issued after the applicant’s second surgery did not include anything about his left shoulder. It seems that his complaints about his left shoulder only started in 2020. He had a number of other conditions for which he saw doctors regularly in 2018 but did not complain of problems with his left shoulder.
The respondent submitted I would not accept the applicant’s evidence that he did not report left shoulder problems or complain of them to Dr Rahman because he was concerned about his job.
The respondent referred to Dr Kinzel’s evidence in January 2019 that the applicant was much improved. On 13 August 2020, she first got complaints about the left shoulder. His left shoulder had a good range of motion, but he had an irritable rotator cuff. She did not get a history that, since the change of duties, he had been doing fairly heavy work with his left shoulder. It is assumed he became symptomatic in about August 2020, while doing those duties. Dr Kinzel didn’t refer to the nature and conditions as causative, as she did not get a history of that work. She also didn’t get a history of the injury in 2012. The respondent submitted that I would not give all that much weight to her opinion.
The respondent submitted that only Dr Wallace’s second report deals with the matter I am to decide. He obtained a history of the work as a gatekeeper and found no objective evidence of any work-related injury. This is not the opinion of Dr Burrow, who found that the applicant’s work caused injury, and there is a consequential condition.
The respondent submitted that the clinical notes do not support the proposition that the applicant had problems with his left shoulder as a result of not being able to use his right arm properly. His first attendance was late, and not consistent with his statement that after the surgery he developed left shoulder problems. It is supported to some extent by Dr Kinzel, but she did not have a history of his heavy work, at least since January 2020.
The respondent finally submitted that Dr Wallace did not implicate the nature and conditions of the applicant’s employment, but Dr Burrow did. It submitted that I would not be satisfied on the balance of probabilities that the applicant has made out the case that his left shoulder condition is consequential on the injury to his right shoulder. There is no explanation as to why he developed problems in 2020, having had surgery in 2018, other than the nature and conditions of his employment, which he said was heavy work. There should therefore be an award for the respondent in respect of injury to the right shoulder.
SUMMARY
The applicant claims to have developed a consequential condition of his left shoulder, as a result of an accepted injury to his right shoulder.
Mr Risteski does not need to establish that he has sustained injury to his left shoulder arising out of or in the course of his employment, pursuant to section 4 of the 1987 Act, or that employment was a substantial contributing factor to the condition, pursuant to section 9A of the Act. In accordance with the decision of Deputy President Roche in Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8, and the cases discussed in that decision, he need only establish on the balance of probabilities that the condition of his left shoulder resulted from the accepted injury to his right shoulder.
The principles of Kooragang Cement Pty Ltd v Bates (1994) 10 NSWCCR 796 (Kooragang) have been consistently applied in the Commission. Kirby P, as he then was, said at [461G]:
“[f]rom the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate”.
After referring to earlier English authorities, his Honour added at [462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
His Honour went on to say that where causation is in issue, each case must be determined on its own facts; and at [463]-[464] “what is required is a commonsense evaluation of the causal chain”.
Having considered the evidence of the applicant and the medical evidence, I am satisfied that the applicant has sustained a consequential condition of his left shoulder as a result of the injury to his right shoulder on 17 August 2016.
The applicant’s evidence, which I accept, is that after the second operation on his right shoulder, his left shoulder started to really hurt. Dr Kinzel had advised him not to lift heavy objects with his right arm or lift it above shoulder height. This is confirmed by Dr Kinzel in her report dated 28 February 2019. She said he should abstain from heavy overhead lifting and should not do any heavy lifting at all. He had to use his left arm to perform his gate keeper duties, which involved lifting car boots, hatchbacks and toolboxes.
The fact that the applicant felt pain in his left shoulder when he commenced gate keeper duties does not mean that the nature and conditions of his employment were responsible for the condition of his left shoulder. He was using his left arm because his right shoulder condition, following two operations, was such that he could not use his right arm for any activity that involved lifting more than a light weight, or activity above shoulder height.
As the applicant submitted, the fact that the clinical records do not refer to his left shoulder at the outset is not surprising, given the nature of the claim he is making. Dr Rahman recorded on 10 June 2020 that the applicant’s left shoulder was painful. He was sufficiently concerned to refer the applicant back to Dr Kinzel, noting that the pain was because he was using his left hand more.
Dr Kinzel had been treating the applicant since 2017 and performed both operations on his right shoulder. She is in my view best placed to provide an opinion as to causation of his left shoulder condition. She reported to Dr Rahman on 13 August 2020 that the applicant’s right shoulder had been troubling him more. This had “triggered” pain in his left shoulder, where he had over-compensatory pain.
Dr Kinzel’s opinion was provided well before any claim was made with respect to the applicant’s left shoulder, in a report addressed to his GP, and not in a medico-legal context. She confirmed that opinion in her report dated 15 October 2020, when she referred to an over-compensatory injury to the applicant’s left shoulder, as he was not allowed to work with his right.
Dr Burrow has in part attributed the applicant’s left shoulder condition to the nature and conditions of his employment, but also to the overuse of his left arm because of his incapacity and injury to his right shoulder. When he referred to the nature and conditions of employment, he noted that the applicant was using his left shoulder to manipulate heavy weights and lift car boots. I accept that the reason the applicant was using his left shoulder was because of injury to his right shoulder and the limitations imposed by that injury.
I do not accept the respondent’s submission that it is significant that neither Dr Kinzel, Dr Burrow nor Dr Wallace was aware that the applicant had an injury to his left shoulder in May 2012. The clinical records show that he had a partial thickness tear in the supraspinatus tendon. He was issued with a final certificate on 5 July 2012, some two months after the injury. There is no record of further consultations for left shoulder issues until June 2020, some eight years later, and after the injury to his right shoulder and the surgery.
The respondent relies on the evidence of Dr Wallace. He opined that the applicant did not sustain a work-related injury to his left shoulder; and the nature and conditions of his employment were not consistent with being the cause of significant pathology. That is not the case on which the applicant relies. However, Dr Wallace also did not accept that an injury to one arm may cause an injury to the other arm, due to overuse.
Dr Wallace referred to AMA Guides. These are not those on which assessment of permanent impairment in the Commission are based, which are the American Medical Association’s Guides to the Evaluation of Permanent Impairment, 5th Edition (AMA 5).
I do not know who authored the AMA Guides to which Dr Wallace referred, or the context in which it was concluded that it was “unsupportable myth” that favouring an injured arm could result in injury to the other arm. There is no evidence before me to assist in this regard. I do not believe it is necessary or desirable for me to conduct my own research into the AMA Guides.
I prefer the evidence of Dr Kinzel, for the reasons given above, and Dr Burrow, who fairly considered whether the injury could have resulted from the nature and conditions of employment and/or overuse of the left arm due to favouring the injured right arm. Both he and Dr Kinzel are orthopaedic surgeons who obviously do not agree with the AMA Guides relied on by Dr Wallace.
Applying the “common sense” evaluation referred to in Kooragang, I have determined that the applicant has sustained a consequential condition of his left shoulder as a result of the injury to his right shoulder on 17 August 2016.
The medical dispute will therefore be remitted to the President for referral to an Approved Medical Assessor.
The orders are as set out in the Certificate of Determination.
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