Santos v WorldMark Pty Limited
[2021] NSWPIC 332
•3 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Santos v WorldMark Pty Limited [2021] NSWPIC 332 |
| APPLICANT: | Benjamin Santos |
| RESPONDENT: | WorldMark Pty Limited |
| MEMBER: | Anthony Scarcella |
| DATE OF DECISION: | 3 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Accepted injury to the right shoulder; whether the worker suffered a frank injury to his cervical spine; whether the worker suffered a consequential condition to the left shoulder as a result of the accepted right shoulder injury; value of contemporaneous evidence; delayed complaints of left shoulder symptoms; Onassis and Calogeropoulos v Vergottis, Department of Aging, Disability and Home Care v Findlay, Department of Education and Training v Ireland, Nguyen v Cosmopolitan Homes, Kooragang Cement Pty Ltd v Bates, Kirunda v State of New South Wales (No 4), Kumar v Royal Comfort Bedding Pty Ltd, Paric v John Holland (Constructions) Pty Ltd, Makita (Australia) Pty Ltd v Sprowles; Hancock v East Coast Timbers Products Pty Ltd, Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd & Anor and Munce v Thomson Cool Rooms Pty Ltd considered and applied; Held - the worker suffered injuries to the right shoulder and cervical spine arising out of or in the course of his employment with the respondent within the meaning of sections 4(a) and 9A of the Workers Compensation Act 1987; the worker suffered a consequential injury to his left shoulder as a result of the accepted injury to his right shoulder. |
| DETERMINATIONS MADE: | 1. The applicant suffered injuries to the right shoulder and cervical spine arising out of or in the course of his employment with the respondent on 28 January 2017 within the meaning of sections 4(a) and 9A of the Workers Compensation Act 1987. 2. The applicant suffered a consequential condition to his left shoulder as a result of the accepted injury to his right shoulder in the course of his employment with the respondent on 28 January 2017. |
| ORDERS MADE: | 3. The respondent is to pay the applicant’s reasonably necessary medical and related expenses as a result of injury on 28 January 2017 under section 60 of the Workers Compensation Act 1987. 4. The matter is remitted to the President for referral to a Medical Assessor for assessment under the Workplace Injury Management and Workers Compensation Act 1998 as follows: Date of injury: 28 January 2017. Body Systems: Right upper extremity (right shoulder); left upper extremity (left shoulder); the spine (cervical spine); and the skin (scarring - TEMSKI). Method of Assessment: Whole Person Impairment. 5. The following documents are to be provided to the Medical Assessor: (a) Application to Resolve a Dispute dated 12 May 2021 and attached documents; (b) Reply dated 2 June 2021 and attached documents; (c) Applicant’s Application to Admit Late Documents dated 4 June 2021 and attached documents; (d) Applicant’s Application to Admit Late Documents dated 27 July 2021 and attached documents; (e) Report by Dr Robin Diebold dated 13 August 2020, and (f) This Certificate of Determination and Statement of Reasons. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Mr Benjamin Santos, is a 58-year-old man who was employed by the respondent, WorldMark Pty Limited (WorldMark) as a workshop manager.
On 28 January 2017, at the respondent’s premises, Mr Santos alleged that, whilst using a high water pressure hose to wash cars in the wash bay, he slipped and fell heavily to the ground. He alleged that he sustained injuries to his right shoulder and neck, and a consequential condition to his left shoulder.
On 12 February 2021, Mr Santos claimed permanent impairment compensation under section 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of his cervical spine, both upper extremities and scarring.[1]
[1] Application to Resolve a Dispute at pages 54-57
On 22 April 2021, WorldMark, through its insurer, AAI Limited t/as GIO (GIO), issued a Dispute Notice pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying an entitlement to lump sum compensation under section 66 of the 1987 Act.[2] In the same Dispute Notice, GIO confirmed its acceptance of Mr Santos’ right shoulder injury and maintained the dispute in respect of the left shoulder and cervical spine as set out in its section 78 Dispute Notices dated 18 February 2020[3] and 30 June 2020[4] respectively.
[2] Reply at pages 13-16
[3] Reply at pages 1-7
[4] Reply at pages 8-12
Mr Santos lodged an Application to Resolve a Dispute (ARD) dated 12 May 2021 in the Workers Compensation Division of the Personal Injury Commission (the Commission) claiming lump sum permanent impairment compensation under section 66 of the 1987 Act as a result of the injury sustained in the course of his employment with the respondent on 28 January 2017.
ISSUES FOR DETERMINATION
The parties agreed that the following issues remained in dispute:
(a) whether Mr Santos suffered an aggravation, acceleration, exacerbation or deterioration of any disease process to his cervical spine and left shoulder deemed to have occurred on 28 January 2017 within the meaning of section 4(b)(ii) of the 1987 Act;
(b) whether Mr Santos suffered a consequential condition to his left shoulder as a result of the injury to his cervical spine and right shoulder on 28 January 2017;
(c) whether Mr Santos suffered a consequential condition to his cervical spine as a result of undergoing exercise physiology following right shoulder surgery;
(d) whether Mr Santos’ medical and related treatment expenses are reasonably necessary as a result of injury within the meaning of sections 59 and 60 of the 1987 Act, and
(e) Whether Mr Santos is entitled to lump sum compensation within the meaning of section 66 of the 1987 Act.
Matters previously notified as disputed
The issues in dispute were notified in the Dispute Notices referred to above.
Matters not previously notified
No other issues were raised.
PROCEDURE BEFORE THE COMMISSION
The parties participated in a conciliation conference/arbitration by audio visual link on 4 August 2021. Mr Stephen Hickey of counsel appeared for Mr Santos, instructed by Mr Danny Lam, solicitor and Mr Joshua Beran of counsel appeared for the respondent, instructed by Ms Jenny Nichols, solicitor.
During the conciliation phase the parties agreed that, in respect of the claimed expenses under section 60 of the 1987 Act, it would be appropriate to make a general order.
I am satisfied that the parties to the dispute understood the nature of the application and the legal implications of any assertion made in the information supplied. I used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties had sufficient opportunity to explore settlement and that they were unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD dated 12 May 2021 and attached documents;
(b) Reply dated 2 June 2021 and attached documents;
(c) Applicant’s Application to Admit Late Documents (AALD) dated 4 June 2021 and attached documents;
(d) Applicant’s AALD dated 27 July 2021 and attached documents, and
(e) report by Dr Robin Diebold dated 13 August 2021.
Oral Evidence
Neither party sought leave to adduce oral evidence from or to cross-examine any witness.
Mr Benjamin Santos’ evidence
In evidence, there is a statement by Mr Santos dated 10 December 2018.[5] I will now refer to the limited relevant parts of that statement.
[5] ARD at pages 1-20
Mr Santos stated that he sustained a whiplash injury in 2013 as a result of a motor vehicle accident during his working hours. He attended physiotherapy in relation to the whiplash injury but continued working.
Mr Santos stated that, in 2017, he was washing cars in the wash bay and tore his right rotator cuff, being the accepted right shoulder injury, which required surgical repair on 22 June 2017. Within a few days of undergoing surgery to his right shoulder, Mr Santos returned to work with his arm in a sling for three days a week.
Mr Santos made no reference to any injury or condition in his neck in 2017 in this statement.
The balance of Mr Santos’ evidentiary statement focused on his work related claim for psychological injury against WorldMark.
In evidence, there is a statement by Mr Santos dated 28 August 2020.[6] I will now refer to the relevant parts of that statement.
[6] ARD at pages 21-34
Mr Santos stated that he was left-hand dominant. He described his duties as a Workshop Manager, which included the cleaning and detailing of motor vehicles; picking up and delivering motor vehicles to customers; dealing with customers by telephone or in person.
Mr Santos stated that, on 28 January 2017, whilst using a high water pressure hose at work, he slipped and fell in the wash bay on the wet and soapy ground. He landed heavily on his right shoulder and right side on the ground. He also jarred his neck in the fall. He reported the accident to Mr Tony Noonan, WorldMark’s NSW Operations Manager.
Mr Santos stated that, on 1 February 2017, he consulted his general practitioner, Dr Dzu Dinh Nguyen, who referred him for an ultrasound of his right shoulder, an MRI scan and to Dr David Lieu, Orthopaedic Surgeon. On 22 June 2017, Dr Lieu performed surgery to his right shoulder. Following surgery, he was off work from 22 June 2017 until 23 July 2017. He underwent physiotherapy and exercise therapy. He continued to experience pain in his right shoulder and neck.
Mr Santos stated that when he returned to work, he worked full hours on Mondays, Wednesdays and Fridays whilst his right shoulder was still in a sling. During that time, his duties involved data entry using a keyboard and mouse; answering telephone calls; and supervising and managing the workshop. As his right arm was in the sling, whilst he was at work, he had to use his left arm and left shoulder to carry out his work tasks.
Mr Santos stated that he had to use his left arm for the computer, the telephone and all his equipment, which involved a lot of awkward stretching and reaching. He had to position his left shoulder in a way to allow him to perform all his tasks with his right shoulder in a sling. He was also typing and using a mouse with his left arm only. At the end of his first day back at work, his left shoulder felt sore and he continued to experience soreness in it at the end of each working day. he tried to ignore the soreness because he was focusing on the treatment and management of pain in his right shoulder.
Mr Santos stated that he could only use his left arm and left shoulder when doing things around the home. He described using his left arm and left shoulder to reach up and grab things from cupboards, vacuuming and doing the grocery shopping.
Mr Santos stated that after wearing the sling for four weeks following the right shoulder surgery, his physiotherapist advised him to only use the sling when he was in a lot of pain. He continued to use the sling from time to time, but even so, he was still avoiding the use of his right arm to do anything because if he used it, the right shoulder pain was aggravated. He stopped using the sling in about September 2017, about six weeks after the right shoulder surgery. During this time, he still felt constant pain in his right shoulder and neck.
Mr Santos stated that, despite his general practitioner issuing him with suitable duties certificates, WorldMark required him to perform heavy work from about April/May 2018. One of those duties was to buff cars using a buffering/polishing machine. The machine weighed about 2 kg to 3 kg and he held the full weight of the buffering machine with his left arm at a slight angle. He then had to use his left arm to move the buffering machine left and right to buff the car. He performed buffering duties once a day and the task took 40 minutes to 45 minutes. He noticed that his left arm became more tired as he performed the task but he was unable to swap arms when his left arm and left shoulder became tired. He was doing his best to avoid using his right shoulder at that time because it was still quite painful and he was worried about making it worse. When he finished buffering, he had to lift the machine and carry it using his left arm and left shoulder to put it away.
Mr Santos stated that another of his duties was to drive cars to and from customer locations, showrooms and holding bays. He found it very difficult and painful for him to use his right shoulder to turn the steering wheel and so, he used his left arm and left shoulder to steer cars.
Mr Santos stated that he was still using his left shoulder to carry out tasks around his home. He was scared that if he used his right shoulder, he would make it worse. During this time, he was also experiencing increasing pain in his neck from the time he returned to his heavier duties at work. He described the tasks at home that required him to use his left shoulder to include walking his dog, changing light bulbs and washing his car. As the months went on, his left shoulder got worse.
Mr Santos stated that, by November 2017, he complained about the constant pain in both his shoulders to his exercise physiologist Mr Aaron King and to his general practitioner, Dr Nguyen.
A significant part of Mr Santos’ statement then focused on an unrelated alleged disciplinary incident at work resulting in him being referred by Dr Nguyen to a psychologist.
Mr Santos stated that, on 13 November 2018, the rehabilitation provider, WorkFocus, attended a case conference with Dr Nguyen and suggested to Dr Nguyen that Mr Santos try to return to normal duties at work. Dr Nguyen provided Mr Santos with a trial normal duties certificate, which he provided to his employer.
Mr Santos stated that, on 14 November 2018, when he attended work, his employment was terminated.
Mr Santos stated that he consulted Dr Lieu in respect of his left shoulder on two occasions. Dr Lieu recommended an injection into the left shoulder and physiotherapy. However, the insurer refused to pay for any further consultations and treatment proposed by Dr Lieu.
Mr Santos stated that he worked for a period of six weeks from 17 June 2019 as a fleet conversion technician with Autonexus. He left the job because of emotional difficulties and has not worked since.
Mr Santos stated that, since about May 2019, he has woken up in the middle of the night with pins and needles in both shoulders and arms. It hurts to rotate his neck left and right. He experiences pain when he reaches above shoulder height. He experiences pain in his neck. Sitting for long periods of time makes him restless and he has the need to stretch his neck. He has difficulty playing golf and fishing. He struggles to sleep because of the pain in his shoulders and his neck. He takes Tramadol to help him sleep.
In evidence, there is a statement by Mr Santos dated 29 April 2021.[7] I will now refer to the relevant parts of that statement.
[7] ARD at pages 35-37
Mr Santos stated that, on 15 March 2021, he underwent a cortisone injection into his left shoulder. He was in the process of seeking a referral from his general practitioner to undergo physiotherapy sessions under Medicare.
Mr Santos stated that, at present, he did not wish to undergo surgery to his left shoulder because of his age and his experience following his right shoulder surgery. He was concerned that surgery may make his condition worse. Once the proposed physiotherapy to his left shoulder was completed, he intended to consult Dr Lieu again to seek advice about further treatment.
Mr Santos stated that he feels constant pain in both shoulders and in his neck. When he rotates his neck, he feels pain and a pulling sensation in the back of the neck. He experiences pain when he moves his neck up and down.
Mr Santos stated that he experiences difficulties driving and parking because of the neck rotation involved. He struggles to sit for prolonged periods of time because of pain in his upper back, shoulders and neck. He occasionally feels pins and needles down both arms down to his fingertips. He struggles to carry groceries or items that weigh more than 10 kg because of an increase in bilateral shoulder and neck pain. He feels an increase in bilateral shoulder and neck pain when he attempts to mow the lawn. The vibrations make his shoulder pain worse. He experiences difficulties walking his dog because of bilateral shoulder and neck pain. He struggles to shave because of bilateral shoulder pain. He struggles with sexual intercourse because of bilateral shoulder and neck pain. He struggles to cook for the family because of bilateral shoulder and neck pain. Whilst he can do the vacuuming at home, it increases his bilateral shoulder pain. He struggles to play golf because of bilateral shoulder and neck pain. He struggles to tend to his garden because of bilateral shoulder and neck pain.
The treating medical evidence
In evidence, are the clinical records of Mr Santos produced and printed by Prestons Family Doctors on 5 September 2019 (the PFD clinical records).[8] Dr Nguyen practices at the Preston’s Family Doctors.
[8] ARD at pages 111-144
The entry in the PFD clinical records on 1 July 2013, corroborated Mr Santos’ evidence that he sustained a whiplash injury as a result of a motor vehicle accident.[9] Mr Santos consulted Dr Elaine Hoang, who recorded that the motor vehicle accident occurred on 28 June 2013, when Mr Santos’ vehicle was hit by another vehicle from behind in wet weather. On examination, Dr Hoang observed tenderness in the paracervical region. She prescribed one Voltaren 50 - 50 mg tablet three times a day and issued Mr Santos with a Certificate of Capacity. The PFD clinical records disclosed that Mr Santos’ workers compensation claim was closed by QBE on 3 September 2013.
[9] ARD at page 116
The entry in the PFD clinical records on 31 January 2017 disclosed that Mr Santos consulted Dr Nguyen in respect of a right shoulder and right neck injury.[10] Dr Nguyen took a history from Mr Santos that he slipped in the wash bay and hit his right shoulder and the right side of his head on the floor. Mr Santos complained of a painful right shoulder on lifting and along the neck down the shoulder. On examination, Dr Nguyen observed tenderness on abduction; tenderness to the right side of the neck; and restricted range of motion. Mr Santos was referred for an ultrasound of his right shoulder and a CT scan of his cervical spine.
[10] ARD at page 121
On 7 February 2017, Mr Santos underwent an ultrasound of the right shoulder and a CT scan of the cervical spine by Dr Chee Chung Hiew, Radiologist.[11] Dr Hiew concluded that the ultrasound demonstrated a full thickness partial width tear of the anterior supraspinatus tendon and subacromial subdeltoid bursitis with sonographic impingement. Dr Hiew concluded that the CT scan demonstrated only mild degenerative disc space changes in the cervical spine and facet joint degenerative arthropathy at C7/T1 bilaterally, more marked on the right. He noted that if there was ongoing clinical concern for cervical radiculopathy, he suggested proceeding with an MRI scan.
[11] ARD at pages 99-100
The entry in the PFD clinical records on 9 February 2017 disclosed that Mr Santos consulted Dr Nguyen and discussed the results of the recent ultrasound of the right shoulder and CT scan of the cervical spine.[12] Dr Nguyen referred Mr Santos to Dr Lieu and to Physio Essentials. Dr Nguyen’s referral letter to Physio Essentials requested opinion and management of the right shoulder full thickness tear and neck sprain.[13]
[12] ARD at page 122
[13] ARD at page 94
On 24 February 2017, Dr Lieu reported to Dr Nguyen that Mr Santos had consulted him in respect of his right shoulder tendon tear.[14] Dr Lieu took a history that Mr Santos sustained a heavy fall onto his right shoulder when he struck it on a car bumper and then landed on the ground. Thereafter, he had experienced constant moderate to severe pain around the postero-lateral aspect of the shoulder with some radiation to his neck. Dr Lieu referred to the recent ultrasound of the right shoulder confirming a full thickness partial tear of the supraspinatus tendon. He referred Mr Santos for an x-ray and MRI arthrogram to confirm that there was no significant pre-existing tendon injury or any other concomitant injuries around his right shoulder.
[14] ARD at pages 75-76
On 6 March 2017, Mr Santos underwent an x-ray and MRI arthrogram of his right shoulder by Dr Paul Leong, Radiologist .[15] Dr Leong concluded that the x-ray demonstrated that there was no evidence of significant degenerative change in the acromioclavicular joint. Dr Leong concluded that the MRI arthrogram demonstrated a complete tear of the supraspinatus tendon from its insertion; a partial articular surface tear within the distal supraspinatus tendon; and a partial-thickness articular surface tear of the distal infraspinatus tendon involving the entire width of the tendon.
[15] ARD at pages 95-97
On 24 March 2017, Dr Lieu reported to Dr Nguyen that he had again reviewed Mr Santos and discussed the outcome of the recent MRI arthrogram.[16] Dr Lieu opined that the most reliable treatment would be an arthroscopic rotator cuff repair, involving an overnight stay in hospital and a six to twelve month recovery period. He advised that the first six weeks post-surgery would require the right arm to be in a sling at all times and thereafter, a staged physiotherapy program would be initiated. He opined that Mr Santos would be restricted to light duties for at least six months.
[16] ARD at page 77
On 22 June 2017, Mr Santos underwent a right rotator cuff repair by Dr Lieu. Dr Lieu reported on the operation to Dr Nguyen.[17] He reported the intraoperative findings as biceps tendinopathy; supraspinatus/upper border infraspinatus tear; mild upper border subscapularis tendinopathy; and superoposterior lateral degenerative tear.
[17] ARD at pages 89-90
Mr Santos underwent post-operative consultations with Dr Lieu on 5 July 2017, 2 August 2017, 13 September 2017, 1 November 2017 and 14 February 2018.[18] On 13 September 2017, Dr Lieu reported to Dr Nguyen that Mr Santos continued to have ongoing stiffness and irritation around his right shoulder. He recommended that aggressive physiotherapy was required. He imposed a 5 kg lifting restriction. On 1 November 2017, Dr Lieu reported to Dr Nguyen that Mr Santos continued to improve slowly with only mild irritability around his right shoulder over his biceps tenodesis screw. He recommended ongoing physiotherapy. On 14 February 2018, Dr Lieu reported to Dr Nguyen that Mr Santos had improved significantly and that there was only mild irritation around the anterior portal. He opined that Mr Santos could now use his arms for normal activities but should avoid any prolonged overhead activities or lifting heavy objects with his arms outstretched. He expected Mr Santos to continue to settle over the coming six months.
[18] ARD at pages 79-83
The entry in the PFD clinical records on 1 May 2018 disclosed that Mr Santos consulted Dr Nguyen in respect of neck pain and right shoulder pain.[19] Mr Santos complained of intermittent pain behind the neck and upper neck radiating down to the right scapula associated with dizziness over the previous two weeks. On examination, Dr Nguyen observed occipital tenderness, a tender neck and a free range of motion. He arranged for Mr Santos to undergo CT scans of the brain and cervical spine and prescribed one
Mobic 15 mg capsule after evening meals. This was the first reference to neck pain in the PFD clinical records since Mr Santos’ consultation with Dr Nguyen on 24 February 2017.[19] ARD at page 133-134
On 7 May 2018, Mr Santos underwent CT scans of the brain and cervical spine by Dr Ramesh Cuganesan, Radiologist.[20] In respect of the CT scan of the brain, Dr Cuganesan concluded that there was no significant intracranial pathology identified. In respect of the CT scan of the cervical spine, Dr Cuganesan concluded that there were small posterior midline disc protrusions in the mid-cervical spine without significant associated impingement of the cervical cord or exiting nerve roots.
[20] Applicant's AALD dated 27 July 2021 at pages 1-2
The entry in the PFD clinical records on 8 May 2018 disclosed that Mr Santos consulted Dr Nguyen in respect of the results of the CT scans of the brain and cervical spine.[21] The reason for the consultation was noted as neck pain with radiculopathy. Mr Santos was referred to Physio Essentials for management and treatment.
[21] ARD at page 134
The entry in the PFD clinical records on 29 May 2018 disclosed that Mr Santos consulted Dr Nguyen complaining of ongoing neck pain and a heavy feeling in the right shoulder whilst working.[22] Dr Nguyen recorded that Mr Santos was still undergoing physiotherapy.
[22] ARD at page 134
The entry in the PFD clinical records on 10 July 2018 disclosed that Mr Santos consulted Dr Nguyen complaining of ongoing neck pain and of not sleeping well.[23]
[23] ARD at page 135
The entry in the PFD clinical records on 7 August 2018 disclosed that Mr Santos consulted Dr Nguyen complaining of right shoulder pain whilst driving and ongoing right sided neck pain.[24] There was also reference to a work-related stress issue not relevant to these proceedings.
[24] ARD at page 135
The entry in the PFD clinical records on 4 September 2018 disclosed that Mr Santos consulted Dr Nguyen complaining of aching in the right shoulder.[25]
[25] ARD at page 136
The entry in the PFD clinical records on 2 October 2018 disclosed that Mr Santos consulted Dr Nguyen complaining of tightness in the right shoulder with localised pain in the right trapezius after driving for 4.5 to 5 days.[26]
[26] ARD at page 136
The entry in the PFD clinical records on 16 October 2018 disclosed that Mr Santos consulted Dr Nguyen complaining of ongoing pain in the right trapezius.[27] Dr Nguyen prescribed one Mobic 15 mg capsule daily after meals.
[27] ARD at pages 136-137
The entry in the PFD clinical records on 1 November 2018 disclosed that Mr Santos consulted Dr Hoang complaining of an exacerbation of pain in the right shoulder without any known trigger factors.[28]
[28] ARD at page 137
The entry in the PFD clinical records on 13 November 2018 disclosed that Mr Santos consulted Dr Nguyen complaining of right scapular pain and pain down both arms if he sleeps on either shoulder.[29] Dr Nguyen noted that Mr Santos may require an opinion from a neurosurgeon.
[29] ARD at pages 137-138
The entry in the PFD clinical records on 20 November 2018 disclosed that Mr Santos consulted Dr Nguyen complaining of right scapular pain and paraesthesia in both upper limbs.[30] Dr Nguyen referred Mr Santos to Dr Renata Bazina, Neurosurgeon.
[30] ARD at page 138
On 18 December 2018, Dr Bazina reported to Dr Nguyen that she had reviewed Mr Santos, who complained of right sided neck pain with radiation into the scapular region.[31] She noted that Mr Santos reported that the pain commenced in April 2018 after a period of intensive physiotherapy following right shoulder surgery. On examination, pain was reproduced with rotation to the right. There was a good range of neck movement and no history of radicular signs or pains (contrary to the clinical entries by Dr Nguyen on 13 November 2018 and 20 November 2018). Dr Bazina reviewed a CT scan and reported that she could not see a disc herniation but noted a mild disc bulge at C3/4. She arranged for an MRI scan to exclude any extra foraminal disc herniations, otherwise, her working diagnosis was one of a trapezius muscle tear. Dr Bazina recommended rest, injections, trigger point therapy, medications, anti-inflammatories and muscle relaxants.
[31] ARD at page 85
On 16 December 2018, Mr Santos underwent an MRI scan of the cervical spine by Dr Niranjan Ganeshan, Radiologist.[32] Dr Ganeshan concluded that there was a mild cervical spondylosis with low-grade disc bulges without significant cord compression and bilateral C7/T1 facet joint arthropathy.
[32] ARD at page 101
The entry in the PFD clinical records on 15 January 2019 disclosed that Mr Santos consulted Dr Nguyen complaining of right scapular pain and advising that he was waiting to consult Dr Bazina.[33]
[33] ARD at pages 139-140
On 25 January 2019, Dr Bazina reported to Dr Nguyen that she had reviewed Mr Santos and discussed the cervical spine MRI findings.[34] She opined that Mr Santos would benefit from exercise physiology and that Mr Santos could commence looking for light-duty work in the following week.
[34] ARD at page 86
The entry in the PFD clinical records on 19 February 2019 disclosed that Mr Santos consulted Dr Nguyen complaining of right shoulder tightness.[35] Dr Nguyen referred Mr Santos to Mr King for exercise physiology.
[35] ARD at page 141
On 18 March 2019, Dr Bazina reported to Dr Nguyen that she had reviewed Mr Santos. Dr Bazina clarified her request for exercise physiology as follows:
“Mr Santos has been retrenched by his employer, he suffers with musculoskeletal pain related to aggravation from a work injury in January 2017. His cervical MRI findings excluded neural impingement but did identify C7/T1 arthropathy which was consistent with the pain around his trapezius muscle and interscapular region with radiation into the posterior cervical region. Long-term treatment for this is physical therapy, medications and steroid injections if necessary.” [36]
Dr Bazina reported that, as there was no surgical pathology, Mr Santos did not need to undergo any further neurosurgical follow-up.
[36] ARD at page 87
The entry in the PFD clinical records on 26 March 2019 disclosed that Mr Santos consulted Dr Nguyen complaining of right shoulder pain on carrying out minimal household work.[37]
[37] ARD at page 141
The entry in the PFD clinical records on 9 April 2019 disclosed that Mr Santos consulted Dr Nguyen complaining of right shoulder stiffness.[38] Mr Santos was referred to Active Therapy.
[38] ARD at page 142
The entry in the PFD clinical records on 11 June 2019 disclosed that Mr Santos consulted Dr Nguyen complaining of right shoulder stiffness, heaviness and a pulling down sensation whilst sitting or driving.[39]
[39] ARD page 143
The entry in the PFD clinical records on 27 August 2019 disclosed that Mr Santos consulted Dr Nguyen complaining of left shoulder clicking.[40] On examination, Dr Nguyen observed left crepitus on all range of motion; no impingement; sharp pain in the left (incorrectly referred to as right) trapezius, possibly from overwork. The reason for the consultation was stated to be left shoulder instability. Dr Nguyen referred Mr Santos for a left shoulder ultrasound. This was the last entry of a consultation in the PFD clinical records and the first recorded complaint of left shoulder symptoms by Mr Santos therein.
[40] ARD at page 144
On 5 September 2019, Mr Santos underwent a left shoulder ultrasound by Dr Dang Lam, Radiologist.[41] Dr Lam concluded that there was a partial thickness left supraspinatus tendon tear, subscapularis tendinosis and subacromial bursitis.
[41] ARD at 102-103
On 22 October 2019, Dr Nguyen referred Mr Santos back to Dr Lieu for opinion and management of his left shoulder and left arm pain, the onset of which occurred when he returned to work in November 2018, 12 months after right shoulder surgery.[42]
[42] Reply at page 21
On 6 November 2019, Mr Santos underwent a left shoulder x-ray by Dr Hiew at the request of Dr Nguyen.[43] Dr Hiew concluded that the x-ray demonstrated normal alignment at the glenohumeral joint; minimal degenerative change at the acromioclavicular joint; minor subacromial bony spurring with narrowing of the subacromial space; and no other focal bony abnormality.
[43] Applicant’s AALD dated 27 July 2021 at pages 3-4
On 11 December 2019, Mr Santos underwent CT and MR arthrograms of the left shoulder by Dr Ganeshan at the request of Dr Lieu.[44] Dr Ganeshan concluded that the arthrograms demonstrated subacromial/subdeltoid bursal inflammation; a high-grade partial-thickness intrasubstance supraspinatus tear; bicipital tenosynovitis; and a SLAP tear with a para labral cyst and anterosuperiorly.
[44] ARD at pages 104-105
On 2 January 2020, Dr Lieu reported to Dr Nguyen on the results of the left shoulder CT and MR arthrograms. Dr Lieu opined that there was an 80% chance of the left shoulder improving without surgery. He referred Mr Santos for a subacromial corticosteroid injection and physiotherapy for a rotator cuff strengthening and retraining program. Dr Lieu suggested that, if Mr Santos failed to respond, then a subacromial decompression with or without a rotator cuff repair could be considered. He added:
“Mr Santos also has questions about whether this is attributable to work. I explained that although this is a reasonable possibility, it may not be the sole contributing cause.”[45]
[45] ARD at page 84
On 15 July 2020, Mr Santos underwent an MRI scan of his cervical spine by Dr Laughlin Dawes, Radiologist at the request of Dr Nguyen because of a painful neck with radiculopathy in both arms.[46] Dr Dawes concluded that the MRI scan demonstrated mild disc herniations at C4/C5 and C5/C6 with potential C6 nerve root impingement. He opined that clinical correlation was required.
[46] ARD at pages 106-107
On 25 August 2020, Mr Santos underwent a right shoulder ultrasound by Dr Elizabeth Lazarus, Radiologist on the referral of Dr Nguyen because of a recurrence of pain in the right shoulder and scapular.[47] Dr Lazarus concluded that the ultrasound demonstrated biceps tendinosis and subacromial bursitis with impingement.
[47] ARD at pages 108-109
On 1 September 2020, Mr Santos underwent a right shoulder x-ray by Dr Leong, Radiologist on the referral of Dr Nguyen because of ongoing right shoulder pain. [48] Dr Leong concluded that the x-ray demonstrated no significant bony abnormality; humeral head was normally positioned within the glenoid cavity; there was no subacromial bone spur or subacromial calcification; and the acromioclavicular joint appeared unremarkable.
[48] ARD at page 110
The forensic medical evidence
On 25 March 2020, Mr Santos consulted Dr Robin Diebold, Orthopaedic Surgeon at the request of GIO. The consultation was an in-person assessment. In evidence, there is a report by Dr Diebold dated 25 March 2020.[49] I will now refer to the relevant parts of that report.
[49] Reply at pages 22-27
Dr Diebold took a history that Mr Santos worked as a supervisor at a car detailing business and that his work often involved physical tasks assisting with detailing cars manually. He noted that Mr Santos was left-handed. Mr Santos had been working for WorldMark for nine years at the time of the injury in 2017. His employment was terminated on 14 November 2018. On 28 January 2017, he slipped in a wash bay whilst washing cars and landed on his right shoulder with his arms by his side. Dr Diebold then took a history of Mr Santos’ post-accident treatment that was consistent with the medical evidence. He noted that Mr Santos performed modified duties between 1 May 2018 and 13 November 2018 and was certified fit for pre-injury duties from 13 November 2018. However, he was terminated from his employment on 14 November 2018.
Dr Diebold recorded Mr Santos’ present symptoms as neck pain radiating to the tip of the right shoulder, which was worse with significant physical use of the right upper limb. The pain settled with rest but the use of the right upper limb caused easy fatigue. There was minimal aggravation of the pain with head movement and there was no radiation into the right upper limb. There was neck pain radiating to the tip of the left shoulder, which was worse with the use of the left upper limb. The pain settled with rest but the use of the left upper limb caused easy fatigue. There was minimal aggravation of the pain with head movement and there was no radiation to the left upper limb. Dr Diebold noted a driving tolerance of one hour and that Mr Santos did not use keyboards generally.
On examination of Mr Santos’ neck, Dr Diebold observed no evidence of guarding; tenderness was most localised over the facet joints in the paravertebral areas and over the trapezius muscles bilaterally; a good range of motion of the neck with flexion of chin to chest, lateral flexion 45° bilaterally and rotation 90° bilaterally; and no neurological abnormality of the upper limbs.
On examination of Mr Santos’ left shoulder, Dr Diebold observed diffuse mild tenderness; full strength of the rotator cuff; no irritability; and negative Jobe’s and Hawkins tests for impingement.
Dr Diebold reviewed the findings of the MRI scan of the cervical spine dated 16 December 2018, the left shoulder ultrasound dated 5 September 2019 and the left shoulder CT arthrogram and MR arthrogram dated 11 December 2019.
Dr Diebold diagnosed Mr Santos’ injury as a soft tissue strain of trapezial muscles. In support of his diagnosis, he observed that there was no guarding and a full range of motion of the neck, as well as a normal cervical MRI scan. Such observations precluded pain as being a radiation of pain of cervical spine origin. The pain was localised to the muscular areas of the trapezial muscles bilaterally. There were no signs of irritability or abnormality in both shoulders to justify a diagnosis of impingement or pain from rotator cuff pathology. The distribution of pain was mainly in the trapezial muscles and not over the shoulder or upper arm, where the shoulder pain was felt. The findings on the left shoulder MRI scan were common physiological findings and the clinical picture was not consistent with being caused by shoulder pathology.
As to whether there was a causal relationship between Mr Santos’ left shoulder pathology and the frank injury to the right shoulder on 28 January 2017, Dr Diebold opined that, clinically, there was no significant left shoulder pathology and that the findings on the MRI scan were not uncommon physiological findings and were an incidental finding. Dr Diebold also opined that the only possible rationale by which the right shoulder injury and surgery may have caused the left shoulder pain, was through the favouring of one limb causing increased stress to the opposite limb. Dr Diebold emphasised that this has been shown not to occur. He referred to the American Medical Association Guides to the Evaluation of Disease and Injury Causation (second edition 2014) at page 758 that stated, amongst other things, that there were no credible studies that supported such a causal relationship and that the concept was not based on scientific evidence.
Dr Diebold concluded that Mr Santos’ current condition was bilateral trapezial muscle pain and that such condition was not related to his right shoulder injury or surgery. He did not believe that it could be attributed to being caused by his exercise physiology strengthening program. Therefore, he did not believe that the ongoing symptoms could be judged as related to his employment related condition (the right shoulder).
On 11 May 2020, Mr Santos consulted Dr Min Fee Lai, Hand and Plastic Reconstructive Surgeon at the request of his lawyers. The consultation took place by way of video link. In evidence, there is a report by Dr Lai dated 22 May 2020.[50] I will now refer to the relevant parts of that report.
[50] ARD at pages 62-74
Dr Lai noted that Mr Santos was left-handed. He recorded Mr Santos’s educational history and noted that since his arrival in Australia from the Philippines in 1989, he had been working as a car detailer. Mr Santos had worked with WorldMark car detailers for 10 years prior to his injury in 2017. He continued to work until his right shoulder operation in June 2017 after which, he was off work for four weeks. He then returned to restricted duties, initially part-time, before going back full-time. Following consequential injuries to his neck and left shoulder, Mr Santos commenced experiencing difficulty coping at work. He admitted to having psychological issues. In November 2018, his services were terminated. He attempted to return to work in June 2019 but was hampered by psychological issues. He had not worked since.
In respect of past medical health, Dr Lai reported that Mr Santos was involved in a motor vehicle accident on 28 June 2013 that caused some neck pain. However, following physiotherapy, he improved with no further issues until after his injury at work on 28 January 2017. Mr Santos also complained of back pain to a local doctor on 13 September 2016. After undergoing physiotherapy, he made a full recovery.
Dr Lai took a history that, on 28 January 2017, Mr Santos was at work when he slipped and fell over injuring his right shoulder and neck. He reported the incident but continued working. Two days later he consulted his local doctor, who referred him for scans on his right shoulder and a CT scan of the cervical spine. He continued to have pain in his right shoulder with stiffness and also minor pain in his neck. The symptoms of his right shoulder overshadowed that of his neck. Mr Santos was referred to Dr Lieu, who performed an arthroscopic repair of the torn right shoulder rotator cuff on 22 June 2017. Following an uneventful immediate recovery, Mr Santos was referred for physiotherapy and rehabilitation, which included intensive exercise physiology. Mr Santos stated that because of the intensive exercise physiology, he commenced experiencing neck pain again in about November 2017 which radiated into his shoulders. He was referred to Dr Bazina for further management. He underwent an MRI scan of his cervical spine that revealed mild cervical spondylosis with low-grey disc bulging and joint arthropathy. It was recommended that he continue with exercise physiology. However, he could not do so because of severe pain. He had not received any further treatment for his neck thereafter.
Dr Lai took a history that, following Mr Santos’ return to work, there was an increase in the workload on his left upper limb at work and in the home. As a result, he started to feel increasing pain in his left shoulder in about June 2018. The pain gradually increased to a point where he experienced a clicking sensation in the left shoulder and eventually reported his symptoms to his general practitioner. Following a consultation with his general practitioner, Mr Santos was referred for a left shoulder ultrasound that demonstrated a partial thickness supraspinatus tear, subscapularis tendinosis and subacromial bursitis. He was referred back to Dr Lieu, who suggested that he continue with physiotherapy and undergo a steroid injection into the left shoulder. Mr Santos did not proceed with these treatments because his claim was denied by GIO.
In respect of the right shoulder, Dr Lai reported that Mr Santos complained of constant pain at the back of the shoulder, with increases in pain on increased use. He complained of stiffness in the right shoulder and paraesthesia in the right upper limb at night.
In respect of the neck, Dr Lai reported that Mr Santos complained of pain located in the back of the neck on both sides, radiating into both shoulder blades and the shoulders. The pain was constant and increased with exercise, physiotherapy and mobilisation. He complained of stiffness in the neck with pain, especially when driving and an inability to turn his head from side to side freely.
In respect of the left shoulder, Dr Lai reported that Mr Santos complained of pain that was more intense than on the right side. He complained of stiffness in the left shoulder being worse than that in the right shoulder with paraesthesia in the whole of the left arm, usually at night.
Dr Lai reviewed the results of the medical imaging provided to him.
Dr Lai reported that his physical examination of Mr Santos was carried out by video link and that there were limitations in respect of such examination, for example, with the assessment of sensation, palpation pain, muscle power and reflexes. He reported that observations were made from anterior, posterior and side views and functional movements were demonstrated three times to limit inconsistencies. He noted that Mr Santos did not appear to be in any distress at the time of the consultation. He was able to undress and redress himself independently without assistance.
On video examination of Mr Santos’ cervical spine, Dr Lai observed that the cervical spine appeared to be midline with a normal lordotic curve; forward flexion and extension were half normal range; lateral flexion to the left and right were even, but three-quarter range; right lateral rotation was accompanied by pain and was less than the left lateral rotation; dysmetria was obviously present in those movements; there was no obvious muscle atrophy present in the upper limbs; and Mr Santos did not indicate any numbness in either upper limb.
On video examination of Mr Santos’ shoulders, Dr Lai observed arthroscopy pigmented puncture holes in the right shoulder but not hypertrophic; no obvious swelling or muscle hypertrophy in either shoulder; demonstration of the Hawkins-Kennedy tests for impingement was positive for both sides; flexion of the shoulders was 150° on the right and 160° on the left; extension of the shoulders was 20° on the right and 30° on the left; adduction of the shoulders was 20° on the right and 20° on the left; abduction of the shoulders was 130° on the right and 150° on the left; internal rotation of the shoulders was 40° on the right and 50° on the left; and external rotation of the shoulders was 80° on the right and 90° on the left.
Dr Lai diagnosed Mr Santos as having suffered a right shoulder rotator cuff tear; a left shoulder rotator cuff tear; and cervical spondylosis. He opined Mr Santos’ prognosis was guarded. He described the nature and extent of Mr Santos’ continuing disabilities as pain and stiffness in both shoulders and in the neck. Dr Lai opined that Mr Santos’ injuries and disabilities were causally related to the accident at work on 28 January 2017 and elaborated as follows:
“It is my opinion that the left and right shoulder rotator cuff tears were frank injuries. It is my opinion that his neck injury was an exacerbation and aggravation of his underlying cervical spondylosis.
It is also my opinion that his employment was the main contributing factor to his symptoms resulting from his cervical spondylosis. Please note that he never suffered neck pain prior to the injury.”[51]
[51] ARD at page 68 at [8]
In respect of the aetiology of the pathology in Mr Santos’ left shoulder, Dr Lai opined as follows:
“It is my opinion that his left shoulder injury was due to the [sic] favouring the right shoulder.
As a result of his right shoulder injury, he required surgery. Postoperatively, his right shoulder was immobilised for a period of time and was also not able to perform his workload as prior to the work injury. As a result, Mr Santos had to compensate with increased workload on to his left shoulder. For example, two-handed activities had to be carried out by his left hand. Work instruments such as a polisher for car detailing that usually is carried out by the use of both hands had to be carried out with extra strength using his left upper limb mainly. In his activities of daily living, carrying shopping bags that normally would be loaded under two hands was now being loaded on to one hand. There are many other examples of two-handed activities that Mr Santos had had to carry out using one hand or one upper limb that he had to carry out following the injury to his right shoulder.
With extra load on to his left shoulder, it would be inevitable that there would be tearing of his rotator cuff just like some rotator cuff tears that occur when extra load is being placed on to one shoulder.”[52]
[52] ARD at page 69 at [9]
Dr Lai assessed Mr Santos’ whole person impairment at 17%, which was made up of the left upper extremity at 4%; the right upper extremity at 6%; the cervical spine at 6%; and scarring at 1%. However, I note that there appears to be an error in Dr Lai’s whole person impairment table on page 72 of the ARD, in that, in that table he has attributed 6% whole person impairment to the left upper extremity and 4% whole person impairment to the right upper extremity.
On 7 August 2020, Mr Santos consulted Dr Diebold at the request of GIO’s lawyers. In evidence, there is a report by Dr Diebold dated 13 August 2020.[53] The consultation was an in-person assessment. I will now refer to the relevant parts of that report.
[53] Respondent's AALD dated 4 August 2021 at pages 1-5
Dr Diebold took an updated history from Mr Santos and reported that, since Mr Santos had last consulted him, he had experienced a gradual worsening of his neck pain, mainly in the area of his bilateral trapezius muscles and the upper back. Mr Santos recalled complaining of pain in the upper back and trapezial areas since his right shoulder surgery on 22 June 2017. He described a constant ache and throbbing in the area of the trapezius muscle and upper back, unrelated to activity but being a constant pain that disturbs his sleep and is aggravated by reading. At night, he experiences an occasional radiation of pain to both hands. He was currently being treated by an exercise physiologist on a monthly basis, in addition to performing his own exercises three times per week and taking Tramadol at night to help with sleep.
On examination of Mr Santos’ cervical spine, Dr Diebold observed only mild tenderness and no guarding; a good range of motion with flexion of the chin to 1 cm from the chest; lateral flexion of 70° bilaterally and rotation of 80° bilaterally; the neck was not irritable with movement; and neurological examination of the upper limbs was normal.
On examination of Mr Santos’ shoulders, Dr Diebold observed that both demonstrated no irritability with full range of motion; full motor function; no tenderness; no obvious discomfort with movement of the arms or with taking his shirt on or off; and tenderness over the trapezial muscles bilaterally and diffusely through the upper back, even to light touch.
Dr Diebold’s diagnosis was one of myofascial pain of trapezius muscles and right periscapular muscles. He opined that clinical findings of a lack of guarding, irritability or limited movement in the cervical spine indicated that it was not the source of pain. The MRI findings were common low-grade findings which did not explain Mr Santos’ symptoms. The location of Mr Santos’ pain and tenderness was consistent with a muscular problem of the trapezius and periscapular muscles.
In respect of causation, Dr Diebold maintained his opinion that only the injury to Mr Santos’ right shoulder was the result of the work accident on 28 January 2017. Both shoulders now had full movement and no irritability, which was not consistent with pathology in those joints. The cervical spine was not irritable, there was no guarding, there was full movement and there were physiological MRI findings. Pain and tenderness were localised to the trapezius and periscapular muscles only and they were the source of his pain. Mr Santos has not worked since late 2018. There was no plausible rationale by which work or his work-related right shoulder injury had caused the current myofascial pain from which he suffers.
Dr Diebold reported that there were no aspects of the clinical examination that suggested that Mr Santos was voluntarily exaggerating symptoms; consciously guarding restriction of movement; displaying symptoms and examination findings inconsistent with the claimed medical condition; or demonstrating a range of movement during informal observation that was not repeated on clinical examination.
Dr Diebold opined that Mr Santos’ complaints/symptoms in respect of the cervical spine were not consequential to the accepted right shoulder injury on 28 January 2017. Dr Diebold maintained that Mr Santos did not have cervical spine pain but rather, myofascial pain of the trapezius and periscapular muscles, which were not secondary to his right shoulder injury, where his symptoms had resolved long ago. He could not identify any non-work-related factors contributing to Mr Santos’ current presentation. Dr Diebold reported that Mr Santos did have significant non-work-related symptoms that made him unfit for heavy physical duties involving the use of his upper limbs.
On 26 March 2021, Mr Santos consulted Dr Diebold at the request of GIO’s lawyers. In evidence, there is a report by Dr Diebold dated 26 March 2021.[54] The consultation was an
in-person assessment. I will now refer to the relevant parts of that report.[54] Reply at pages 28-37
Dr Diebold referred to the accompanying documentation provided to him, which included the report of Dr Lai dated 22 May 2020 and the reports of Dr Lieu that are in evidence.
Dr Diebold added to the previous histories taken that, in about April 2018, Mr Santos reported an onset of right sided neck pain radiating down to the right scapular area after a period of intensive physiotherapy. He noted that Mr Santos did not recall the event clearly but noted that it was in the report of Dr Bazina dated 18 December 2018. Mr Santos had not undergone any physiotherapy over the past 12 months and consulted Dr Nguyen every two to three weeks. Two weeks prior to the consultation with Dr Diebold, he had undergone a steroid injection of the left subacromial bursa without any benefit to the pain in his left trapezius area.
Dr Diebold reported that Mr Santos complained of pain in the neck radiating to the region of the left trapezius and scapular muscles in particular and also coming down to the tips of both shoulders. He experienced a constant sharp pain together with a feeling of dragging and of heaviness in the trapezius muscles bilaterally. Symptoms were worse with pushing a lawnmower, carrying shopping and walking, but not with activities in forward flexion. Tolerances were reported as: driving a motor vehicle: 5 minutes; lifting and carrying: 12 kg; and keyboard activity 2 minutes.
Dr Diebold reported that Mr Santos was medicating with Tramal 50 mg twice daily and was having no other treatment.
On examination of Mr Santos’ cervical spine, Dr Diebold observed no guarding or spasm; diffuse tenderness throughout the cervical spine, trapezius muscles and scapular areas, with the main tenderness over the trapezius muscles; no spasm of the trapezius muscles or periscapular muscles; a mildly limited range of motion of neck with chin flexion to 2 cm from chest; extension 45°; lateral flexion 45° bilaterally and rotation 80° bilaterally; an absence of dysmetria; and minimal pain with neck movement.
On examination of Mr Santos’ left and right shoulders, Dr Diebold observed diffuse tenderness in all areas; no wasting; full power of rotator cuff in all three components; and a negative Jobe’s and Hawkins’ test for impingement syndrome.
Dr Diebold further observed that Mr Santos demonstrated no apparent discomfort or abnormal movement of arms or head throughout the consultation. He demonstrated some signs of non-organic pain syndrome with overreaction to arm movement, fluctuant levels of discomfort with arm or head movement, diffuse superficial tenderness throughout the neck, shoulders and trapezius muscles and fluctuance of tenderness in all areas.
Dr Diebold maintained his opinion that the symptoms related to Mr Santos’ right shoulder injury on 28 January 2017 had resolved. He opined that Mr Santos’ complaints of significant cervical and myofascial trapezial pain were not related to his work injury or to his previous work duties.
Dr Diebold observed that Mr Santos had sustained a work-related injury to his right shoulder on 28 January 2017. He underwent a surgical repair of his right rotator cuff by Dr Lieu on 22 June 2017 and had a good response to surgery. In about April 2018, he first complained of pain in his right trapezius muscle area. In late 2018, he first complained of pain in his left trapezius muscle area. The trapezius is the muscle that spans the neck and shoulder.
In respect of Mr Santos’ cervical spine symptoms, Dr Diebold diagnosed myofascial pain in the trapezius and periscapular muscles. He opined that the level of symptoms in the cervical spine contrasted with the lack of significant signs of pathology such as muscle spasm, guarding or significant irritability with movement of shoulders or cervical spine. There was no plausible rationale by which his neck or trapezial symptoms were secondary to his right shoulder injury. Further, there were significant signs of non-organic pain syndrome including overreaction, diffuse superficial tenderness, fluctuance and variability of areas of tenderness and fluctuance and variability of observed range of motion in both shoulders and cervical spine. The MRI scan of the cervical spine demonstrated common low-grade physiological findings. Degenerative changes on imaging of the cervical spine are very common, occurring in about 90% of asymptomatic people. There was a lack of correlating physical signs to indicate that the physiological findings were pathological.
In respect of Mr Santos’ left shoulder symptoms, Dr Diebold opined that they were not consistent with impingement syndrome or any other pathology in the shoulder. The pain was mainly located in the trapezius muscle and scapular area. Pain was not made worse with activities in forward flexion, which occurs universally in impingement syndrome, but occurs with his arms by his side, which is inconsistent with impingement syndrome. Mr Santos’ tenderness was diffuse and almost exclusively over the trapezius muscles and not the shoulders. Jobe’s and Hawkins’ test for impingement syndrome were negative. The left shoulder imaging demonstrated common low-grade physiological findings that did not explain his symptoms. In the general population aged 50 to 69 years, the incidence of rotator cuff tears is about 22%. The lack of abnormal findings on history and examination confirmed that these findings on imaging were not symptomatic. The evidence was strongly against the concept of favouring the opposite upper limb causing significant stressful pathology in the opposing upper limb.
Dr Diebold made the following observations about Dr Lai’s opinions in respect of Mr Santos’ cervical spine symptoms:
“Dr Lai found that [sic] cervical spine injury was secondary to his work injury, noting a history of pain in the neck at the same time as that of the right shoulder, and also of the cervical pain intensifying following physiotherapy to the right shoulder. The records by his practitioners Dr Nguyen and Dr Lieu give no note of complaint of neck pain after initial injury. In the report of Dr Bazina of April 2018, she passes on a report from Mr Santos that he developed right-sided trapezial pain down to the scapular area after physiotherapy. This is a myofascial pain of the trapezius muscles and does not reflect a cervical injury. There is no plausible link by which shoulder physiotherapy would cause a prolonged myofascial condition of these areas.”[55]
[55] Reply at page 35 [8]
Dr Diebold made the following observations about Dr Lai’s opinions in respect of Mr Santos’ left shoulder symptoms:
“Dr Lai found that the right shoulder injury could cause secondary injury to the left shoulder, on the basis that ‘he clearly states that he has had to increase the workload on his left upper limb due to the disability in his right upper limb following the surgery’. The evidence on this question has been shown to be strongly against this occurring.”
The evidence Dr Diebold refers to is the reference in his earlier report to the American Medical Association Guides to the Evaluation of Disease and Injury Causation (second edition 2014) at page 758 that stated, amongst other things, that there were no credible studies that supported such a causal relationship and that the concept was not based on scientific evidence.
Dr Diebold strongly recommended against Dr Lai’s recommendation to consider surgery to Mr Santos’ left shoulder. Dr Diebold observed that his view in this regard correlated with the opinion of Dr Lieu, who found no indication for such surgery.
In respect of his diagnosis of myofascial pain of the trapezius and periscapular muscles bilaterally, Dr Diebold opined that, for the purpose of assessing whole person impairment, such diagnosis relates to the cervical spine but does not carry an impairment value. Dr Diebold assessed that Mr Santos, on his current presentation, had a 0% whole person impairment.
SUBMISSIONS
The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.
FINDINGS AND REASONS
Was there an injury to the cervical spine?
Mr Santos claimed a frank injury to the cervical spine (section 4(a) of the 1987 Act); and/or an aggravation, exacerbation, acceleration or deterioration of the disease condition in the cervical spine (section 4(b)(ii) of the 1987 Act); and/or a consequential condition to the cervical spine arising from the exercise physiology he underwent following right shoulder surgery.
Section 4(a) of the 1987 Act defines “injury” as a personal injury arising out of or in the course of employment.
The onus of establishing injury falls on Mr Santos and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Department of Education and Training v Ireland[56] (Ireland) and Nguyen v Cosmopolitan Homes[57] (Nguyen).
[56] Department of Education and Training v Ireland [2008] NSWWCCPD 134
[57] Nguyen v Cosmopolitan Homes [2008] NSWCA 246
The issue of causation must be based and determined on the facts in each case and requires a common sense evaluation of the causal chain: Kooragang Cement Pty Ltd v Bates[58] (Kooragang). As I understand it, when referring to applying “common sense”, Kirby, P in Kooragang was not suggesting that it be applied “at large” or that issues were to be determined by “common sense” alone but by a careful analysis of the evidence, including a careful analysis of the expert evidence: Kirunda v State of New South Wales (No 4)[59] (Kirunda). The legislation must be interpreted by reference to the terms of the statute and its context in a fashion that best effects its purpose.
[58] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796
[59] Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 at [136]
As Parker ADP observed in Le Twins Pty Ltd v Luo,[60] “[m]ost conditions are the result of multiple factors. The question is always whether the facts as found satisfy the statutory criterion for causation.”
[60] Le Twins Pty Ltd v Luo [2019] NSWWCCPD 52, [71].
In order to establish that a “personal injury” has been suffered within the meaning of section 4(a) of the 1987 Act, Mr Santos must establish, on the balance of probabilities, that there has been a definite or distinct “physiological change” or “physiological disturbance” in his cervical spine for the worse which, if not sudden, is at least, identifiable: Kennedy Cleaning Services Pty Ltd v Petkoska[61] (Kennedy) and Military Rehabilitation and Compensation Commission v May[62] (May). The word “injury” refers to both the event and the pathology arising from it: Lyons v Master Builders Association of NSW Pty Ltd[63] (Lyons). While pain may be indicative of such physiological change, it is not itself a “personal injury”.
[61] Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45
[62] Military Rehabilitation and Compensation Commission v May [2016] HCA 19
[63] Lyons v Master Builders Association of NSW Pty Ltd (2003) 25NSWCCR 496
Castro v State Transit Authority[64] (Castro) provides a useful review of the authorities and makes it clear that what is required to constitute “injury” is a “sudden or identifiable pathological change”. In Castro, a temporary physiological change in the body’s functioning (atrial fibrillation: irregular rhythm of the heart), without pathological change, did not constitute injury.
[64] Castro v State Transit Authority [2000] NSWCC 12; (2000) 19 NSWCCR 496
Zickar v MGH Plastic Industries Pty Ltd[65] (Zickar) highlighted that a worker can rely on injury simpliciter despite the existence of a disease. In Zickar, the High Court of Australia held that the presence of a disease did not preclude reliance upon that event as a personal injury. The terms “personal injury” and “disease” are not mutually exclusive categories. A sudden identifiable physiological (pathological) change to the body brought about by an internal or an external event can be a personal injury and the fact that the change is connected to an underlying disease process does not prevent the injury being a personal injury: North Coast Area Health Service v Felstead.[66]
[65] Zickar v MGH Plastic Industries Pty Ltd [1996] HCA 31; 187 CLR 310
[66] North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [77]
A distinction can be drawn between a frank incident that acts as an aggravation of a disease process (for example, a specific incident that aggravates a degenerative spinal condition) and “the insidious effects of a general environment, without particular identifiable incident, which produces the incapacity by way of cause or aggravation of a disease”. The former can properly be regarded as injury simpliciter, that is, a section 4(a) personal injury, without “resort to the ‘disease’ provisions”: Di Giovanni v Smorgon ARC Pty Ltd[67], (Di Giovanni) and the cases cited therein at 590 and Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd & Anor[68] (Mecha).
[67] Di Giovanni v Smorgon ARC Pty Ltd [1992] NSWCC 26; (1992) 8 NSWCCR 582
[68] Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd & Anor (1998) 45 NSWLR 606
As to whether Mr Santos suffered a consequential condition to his cervical spine, it is unnecessary for me to determine whether Mr Santos’ cervical spine symptoms are in themselves ‘injuries’ pursuant to section 4 of the 1987 Act: Moon v Conmah Pty Ltd (Moon),[69] Kumar v Royal Comfort Bedding Pty Ltd[70] (Kumar) and Bouchmouni v Bakos Matta t/as Western Red Services[71].
[69] Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50]
[70] Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61])
[71] Bouchmouni v Bakos Matta t/as Western Red Services [2013] NSWWCCPD 4
Further, section 9A of the 1987 Act does not apply to a condition that has resulted from an injury: Tiritabua v Bartter Enterprises Pty Ltd[72].
[72] Tiritabua v Bartter Enterprises Pty Ltd [2008] NSWWCCPD 145 at [47]
The onus of establishing a consequential condition as a result of an accepted injury falls on Mr Santos and the standard of proof is on the balance of probabilities, meaning that I must be satisfied to a degree of actual persuasion or affirmative satisfaction: Ireland and Nguyen.
I am required to conduct a common sense evaluation of the causal chain to determine whether the cervical spine symptoms complained of by Mr Santos have resulted from the accepted injury to his right shoulder on 28 January 2017: Kooragang. This requires a careful analysis of the evidence and a careful analysis of the expert evidence: Kirunda. The causal relationship must be established on the balance of probabilities from evidence in an acceptable form: Munce v Thomson Cool Rooms Pty Ltd[73] (Munce).
[73] Munce v Thomson Cool Rooms Pty Ltd [2017] NSWWCCPD 39 at [101]
In Carr v State of New South Wales (Mid North Coast Local Health District)[74] (Carr), Member Sweeney in the Commission referred to the cases of The State Government Insurance Commission v Oakley[75] (Oakley), Secretary, New South Wales Department of Education v Johnson[76] (Johnson) and Ozcam v Macarthur Disability Services Ltd[77] (Ozcam) in respect of an issue of causation where a subsequent injury was involved. In both Johnson and Ozcam, the New South Wales Court of Appeal applied the principles enunciated by Malcolm CJ in Oakley. In Johnson, a case involving judicial review of the decision of a Medical Appeal Panel, these principles were stated by Emmett AJA as follows:
“There are three possible categories where an earlier injury is followed by a later injury, as follows:
·Where the later injury results from a subsequent accident that would not have occurred had the victim not been in the physical condition caused by the earlier accident, the second injury should be treated as having a causal connection with the earlier accident.
·Where an earlier injury is exacerbated by a subsequent injury, there will be a causal connection between the original injury and the subsequent damage unless it can be shown that some part of the subsequent damage would have been occasioned even if the original injury had not occurred.
·Where a victim, who had previously suffered an injury, suffers a subsequent injury and the subsequent injury would have occurred whether or not the victim had suffered the original injury and the damage sustained by reason of the subsequent injury includes no element of aggravation of the earlier injury, there will be no causal connection between the original injury and the damage subsequently sustained.”[78]
[74] Carr v State of New South Wales (Mid North Coast Local Health District) [2021] NSWPIC 195
[75] The State Government Insurance Commission v Oakley (1990) Aust Torts Rep 81-003
[76] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321
[77] Ozcam v Macarthur Disability Services Ltd [2021] NSWCA 56
[78] Secretary, New South Wales Department of Education v Johnson [2019] NSWCA 321 at [70]
WorldMark’s principal submissions in respect of Mr Santos’ cervical spine symptoms may be summarised as follows:
(a) WorldMark submitted that, if there was a finding of injury to the cervical spine, it was open to me to find that any such injury had resolved on the evidence;
(b) Mr Santos’ case is based on the opinion of Dr Lai. Dr Lai is a hand surgeon, who has never physically examined Mr Santos in person;
(c) in his statement dated 10 December 2018, being the most contemporaneous statement to the claimed injuries, Mr Santos referred to a work-related whiplash injury in 2013 and a work-related right shoulder injury in 2017 but did not mention any injury to his neck in 2017;
(d) in his statement dated 20 August 2020, Mr Santos referred to injuring his right shoulder and jarring his neck in the work-related incident on 28 January 2017. He stated that he has continued to have pain in his right shoulder and neck. The latter is totally inconsistent with his medical clinical records. Importantly, what is not mentioned in this statement is the aggravation in April 2018 as a consequence of physiotherapy resulting in symptoms in the trapezius muscles bilaterally;
(e) the claimant’s current cervical spine symptoms arise from the trapezius muscles. The cervical spine was not injured;
(f) on 24 February 2017, Dr Lieu reported that Mr Santos had constant moderate to severe pain around the postero-lateral aspect of his right shoulder with some radiation to his neck. Importantly, it was not pain radiating from his neck to his right shoulder, which is consistent with the clinical records. In none of Dr Lieu’s reports did he refer to symptoms in Mr Santos’ neck;
(g) the entry in the PFD clinical records on 1 May 2018 recorded complaints of pain behind the neck and upper neck radiating down to the right scapula in the previous two weeks. At about this time, Mr Santos was undergoing aggressive physiotherapy. The neck symptoms complained of were caused by the aggressive physiotherapy. They were not ongoing symptoms in the neck from the 28 January 2017 accident;
(h) the medical imaging in respect of the cervical spine showed very little, if anything, by way of pathology. Any neck pain or symptoms at or around 1 May 2018 or even ongoing, arose from the aggressive physiotherapy. Mr Santos was referred to Dr Bazina in respect of his neck symptoms. On 18 December 2018, after having scrutinised the medical imaging, Dr Bazina was of the opinion that
Mr Santos’ neck symptoms were a result of a trapezius muscle tear;(i) on 18 March 2019, Dr Bazina confirmed that Mr Santos’ cervical MRI findings excluded neural impingement but did identify C7/T1 arthropathy, consistent with the pain around his trapezius muscle and interscapular region with radiation into the posterior cervical region. Such opinion was consistent with that of Dr Diebold;
(j) none of Mr Santos’ treating doctors provide any firm opinion in respect of the cause of his neck symptoms. So, what is left for consideration is the differing opinions of the forensic medical specialists, Dr Lai and Dr Diebold;
(k) Dr Lai is a hand surgeon, who consulted Mr Santos once by way of video link and who conceded that there were limitations in comparison to face-to-face consultation, especially with regard to physical examination. Mr Santos’ injuries need to be assessed by way of a physical examination. Dr Diebold examined Mr Santos in face-to-face consultations on three occasions over a period of one year;
(l) Dr Lai took a history that Mr Santos commenced having difficulty coping at work following consequential injuries to his neck and left shoulder. Later in his report he found frank injuries to those parts of the body, which was inconsistent with the history he took earlier in his report;
(m) Dr Lai took a history that Mrs Santos started to experience neck pain again radiating into his shoulders in about November 2017 because of the intensive exercise physiology he was undergoing following right shoulder surgery. Dr Lai took an incorrect history, in that, the PFD clinical records revealed that the neck pain started again in April 2018.
(n) Dr Lai opined that the neck injury was an exacerbation and aggravation of Mr Santos’ underlying cervical spondylosis. WorldMark did not accept that opinion but if it were accepted, it was submitted that it was so temporary, based on the absence of complaints in PFD clinical records, that it had completely resolved well before April 2018, when Mr Santos sustained a trapezius injury following intensive physiotherapy;
(o) Dr Lai’s evidence was inconsistent as to the issues of causation and failed to take into account the contemporaneous PFD clinical records;
(p) Dr Diebold took consistent histories. Dr Diebold was able to conduct a thorough examination to test power and function. He was able to carry out impingement tests. Dr Diebold’s in person assessment on examination must be accepted and preferred over that of Dr Lai’s audiovisual assessment. Dr Diebold’s diagnosis based on his clinical examination was one of a soft tissue strain of trapezial muscles, being the same diagnosis as that made by Dr Bazina, Mr Santos’ treating neurosurgeon. He opined that it was not related to his right shoulder injury or surgery, and
(q) The evidence did not support a finding of injury to the cervical spine or a consequential injury to the cervical spine as a result of the accepted right shoulder injury. There was a complaint of pain at the time of the injury but it was consistent with pain extending from the right shoulder to the neck. There was an injury to the trapezius as a result of the treatment by way of exercise physiology and that was not an injury to the cervical spine, as supported by Dr Diebold and Dr Bazina.
Mr Santos’ principal submissions in respect of this issue may be summarised as follows:
(a) Mr Santos disclosed his two prior work injuries in his first evidentiary statement. The motor accident related whiplash injury on 28 June 2013 was referred to in the PFD clinical records in an entry dated 1 July 2013 and was last referred to in an entry on 9 October 2013. Mr Santos had three or four consultations about his neck during the latter mentioned period. He underwent physiotherapy and by 9 October 2013, his neck was improving;
(b) Mr Santos’ neck injury was the subject of a complaint to Dr Nguyen that was recorded in the PFD clinical records in an entry on 31 January 2017. Dr Nguyen referred him for a CT scan of the cervical spine. He later underwent an MRI scan of the cervical spine at the request of Dr Bazina. The findings in the CT scan and the MRI scan could not be called normal findings as reported by Dr Diebold. The MRI scan demonstrated some significant facet joint arthropathy at C7/T1 and disc bulging at C3/4, C4/5 and C5/6. These findings were abnormal;
(c) in her report dated 25 January 2019, Dr Bazina thought that the joint arthropathy was serious. In her report dated 18 March 2019, Dr Bazina again referred to the MRI scan findings and reported that the C7/T1 arthropathy was consistent with the pain around Mr Santos’ trapezius muscle and interscapular region with radiation into the posterior cervical region. That is, the pain was radiating from the C7/T1 into the trapezius muscle and interscapular region and into the posterior cervical region;
(d) the MRI scan report dated 15 July 2020 noted significant findings, including, mild disc herniations at C4/C5 and C5/C6; moderate foraminal narrowing at C5/C6 with potential C6 nerve root impingement. It was not a normal MRI scan as suggested by Dr Diebold. Dr Diebold dealt with the findings on the scans in a shorthand manner. Dr Diebold’s focus on myofascial pain of the trapezius muscles and right periscapular muscles was one-eyed and an ill-considered opinion in the light of the objective pathology demonstrated in the MRI scan;
(e) there are entries in the PFD clinical records in respect of Mr Santos’ neck on 31 January 2017, 7 February 2017, 9 February 2017, 11 February 2017, 1 May 2018, 8 May 2018, 29 May 2018, 10 July 2018, 7 August 2018, 23 December 2018 and 19 February 2019 and a CT scan of the cervical spine on 2 November 2018, an MRI scan of the cervical spine on 16 December 2018, an MRI scan of the cervical spine on 15 July 2020;
(f) Dr Diebold was incorrect when he stated that the findings in the MRI scan of the cervical spine on 15 July 2020 were identical to the findings in the MRI scan on 16 December 2018;
(g) after 11 February 2017, Mr Santos’ complaints of neck pain did not feature again until April/May 2018, being about the time of undergoing intensive physiotherapy to his right shoulder and also about the time when he was required to return to heavy work with WorldMark, including buffing and polishing cars with a machine mainly with his left arm. Mr Santos’ neck pain became worse;
(h) between the date of his right shoulder surgery on 22 June 2017 and 2018, the focus was on Mr Santos’ right shoulder. The neck appeared to have been a lesser consideration until April/May 2018. Mr Santos’ evidence was that the neck pain had always been there. It was symptomatic;
(i) Mr Santos attempted to return to work with Autonexus on 17 June 2019 until the third week of August 2019 but did not remain in employment because of the irritability it caused to his injuries. (This submission was contrary to Mr Santos’ own evidence, who stated that his employment did not last very long because he found it difficult to control his emotions and was experiencing angry outbursts, one of which was directed at a fellow employee);
(j) although Dr Diebold has seen the worker on numerous occasions, he is on his own in terms of his consideration of the significance of the evidence of pathology on medical imaging in the cervical spine, left shoulder and right shoulder. Whilst there are disadvantages in conducting an examination by audio visual link, Dr Lai’s examination took into account the evidence of Mr Santos, the medical imaging, the PFD clinical records and the reports of Dr Lieu and Dr Bazina. Further, because the examination was conducted audio visually, Dr Lai had Mr Santos demonstrate functional movements three times to limit any inconsistencies;
(k) Dr Lai opined that employment was the main contributing factor to Mr Santos’ symptoms resulting from his cervical spondylosis. The aggravation to the cervical spine has not ceased. The pathology is there on the medical imaging. Mr Santos’ evidence is that it has not improved and that the resultant restrictions have continued. The claimed injury in respect of the cervical spine would fall under section 4(b)(ii) of the 1987 Act. However, under the principle espoused in Mecha, the injury to the cervical spine can properly be regarded as an injury simpliciter, that is, a section 4(a) personal injury, without resort to the disease provisions in the 1987 Act, and
(l) in addition, the injury to the cervical spine can be considered a consequential injury that arose from the intensive exercise physiology Mr Santos underwent in or about April/May 2018 and is supported by Dr Bazina. It is a part of the chain of causation in the culminating impairment in respect of the cervical spine. It would be a consequence of the initial injury and this submission is supported by cases such as Carr, Oakley, Johnson and Ozcam.
In this case and in accordance with the findings made above, there was a frank incident, namely, the slip and fall on 28 January 2017, that acted as an aggravation and exacerbation of previously asymptomatic disease processes in Mr Santos’ cervical spine, which should be properly regarded as an injury simpliciter (Mecha), that is, a personal injury within the meaning of section 4(a) of the 1987 Act and I so find.
The parties made no submissions in relation to section 9A of the 1987 Act. I have considered the factors set out in section 9A(2) of the 1987 Act. I am satisfied and find that there was a causal relationship between the injury and the work Mr Santos was required to do on 27 January 2017, that is, there was a connection with his employment which was real and of substance. Accordingly, I am satisfied that Mr Santos’ employment was a substantial contributing factor to his injury within the meaning of section 9A of the 1987 Act.
I am not satisfied, for the reasons stated above, that Mr Santos suffered a consequential condition of his cervical spine following a period of intensive physiotherapy in or about April 2018.
Was there a consequential condition to the left shoulder?
WorldMark’s principal submissions in relation to Mr Santos’ left shoulder symptoms may be summarised as follows:
(a) in his evidentiary statement dated 20 August 2020, Mr Santos stated that he is left-handed, which is important because of his allegation that he has overused his left upper limb as a consequence of his accepted right shoulder injury. WorldMark submitted that because Mr Santos is left-handed, he would have been using his left upper limb in any event to carry out the tasks at work and at home referred to in his evidentiary statement dated 20 August 2020;
(b) the first reference in the PFD clinical records to left shoulder symptoms was the entry on 27 August 2019. Mr Santos’ employment with WorldMark had been terminated nine months earlier, on or about 14 November 2018. Before the latter mentioned date, Mr Santos had not been working full-time and had taken a significant amount of time off work because of his psychiatric injuries. Mr Santos had been treated by Dr Nguyen, Dr Lieu and Dr Bazina and there was no record of him complaining to any of those doctors of left shoulder symptoms until mid-2019. The factual allegations of a consequential left shoulder injury are not supported by the medical evidence;
(c) when Dr Lieu reported on 2 January 2020 that Mr Santos’ left shoulder symptoms being attributable to work was a reasonable possibility but may not be the sole contributing cause, as Mr Santos had not been working for almost 18 months. Therefore, to argue that the left shoulder symptoms were attributable to work was inconsistent with the factual evidence. The timeline does not match up;
(d) none of Mr Santos’ treating doctors provide any firm opinion in respect of the cause of his left shoulder symptoms. So, what is left for consideration is the differing opinions of the forensic medical specialists, Dr Lai and Dr Diebold;
(e) Dr Lai took a history that, in about June 2018, Mr Santos started to feel increasing pain in his left shoulder, which was not supported by the PFD clinical records. There was no reference to the left shoulder in the PFD clinical records until mid-2019, well after Mr Santos ceased employment. The history taken by Dr Lai was incorrect;
(f) Dr Lai opined that the left and right shoulder rotator cuff tears that he had diagnosed were frank injuries. There is no evidence that the left rotator cuff tear was a frank injury sustained on 28 January 2017 and such opinion ought to be rejected out of hand. The opinion was inconsistent with the opinion he expressed later in his report that the left shoulder injury was due to favouring the right shoulder;
(g) Dr Lai's opinion that it was inevitable, with the extra load on Mr Santos’ left shoulder, there would be tearing of the rotator cuff was inconsistent with the fact that he had ceased working in November 2018. The left shoulder complaints in the PFD clinical records commenced a long time after Mr Santos ceased working;
(h) Dr Lai’s evidence was inconsistent as to the issues of causation and he failed to take into account the contemporaneous PFD clinical records;
(i) Dr Diebold’s evidence ought to be preferred over that of Dr Lai for the reasons previously stated in WorldMark’s submissions. Dr Diebold opined that the left shoulder symptoms were inconsistent with impingement syndrome or any other pathology in the shoulders. He opined that Mr Santos suffered a soft tissue strain of the trapezial muscles;
(j) the evidence did not support a finding of a frank injury to the left shoulder or a consequential injury to the left shoulder as a result of the accepted right shoulder injury, and
(k) therefore, the matter should not be remitted to the President of the Commission for referral to a Medical Assessor because Mr Santos does not reach the whole person impairment threshold in respect of the accepted injury to his right shoulder alone.
Mr Santos’ principal submissions in relation to this issue may be summarised as follows:
(a) Mr Santos was experiencing constant pain in both shoulders by November 2017 and complained about this to his exercise physiologist, Mr King, and to Dr Nguyen;
(b) in about April/May 2018, being about the time when Mr Santos was required to return to heavy work with WorldMark, including buffing and polishing cars with a machine and other duties using mainly his left arm;
(c) Mr Santos had significant pathology in his right shoulder (biceps tendinopathy, supraspinatus/upper border infraspinatus tear, mild upper border subscapularis tendinopathy and a superoposterior labral degenerative tear) which resulted in Dr Lieu carrying out a right rotator cuff repair on 22 June 2017. Dr Lieu’s post-operative instructions were for Mr Santos to remain in a sling at all times pending review. In view of the significant pathology, it was understandable that Mr Santos was concerned about placing strain on his right shoulder at the risk of worsening the condition;
(d) the PFD clinical records entry on 27 August 2019 was the first reference to Mr Santos’ left shoulder symptoms;
(e) the left shoulder ultrasound on 5 September 2019 demonstrated a partial-thickness supraspinatus tendon tear, subscapularis tendinosis and subacromial bursitis. The CT and MR arthrogram of the left shoulder on 11 December 2019 concluded that Mr Santos had a subacromial/subdeltoid bursal inflammation, a high-grade partial-thickness intrasubstance supraspinatus tear, bicipital tenosynovitis and a SLAP tear with a para labral cyst anterosuperiorly. Clearly, Mr Santos had significant pathology in a number of tendons and areas of his left shoulder by 11 December 2019 and these findings tend to discount Dr Diebold’s opinion in respect of the left shoulder;
(f) the right shoulder ultrasound on 25 August 2020 demonstrated biceps tendinosis and subacromial bursitis with impingement. The findings tend to discount Dr Diebold’s opinion in respect of the right shoulder;
(g) Dr Lai opined that Mr Santos’ left shoulder injury was due to favouring his right shoulder, that is, it was a consequential injury supported by the reasoning in cases such as Kooragang and Kumar. Dr Lai’s reference in his report to the left shoulder being a frank injury must have been a reference to the pathology, in that, it was new pathology, not an aggravation of a degenerative condition;
(h) there should be a finding of an injury to the right shoulder and cervical spine within the meaning of section 4(a) of the 1987 Act; and/or a consequential condition to the cervical spine; and a consequential condition to the left shoulder as a result of the accepted injury to the right shoulder in the course of Mr Santos’ employment with the respondent on 28 January 2017, and
(i) Mr Santos sought a general order for treatment and related expenses under section 60 of the 1987 Act in respect of the right shoulder, left shoulder and cervical spine.
WorldMark’s submissions in reply may be summarised as follows:
(a) in respect of the left shoulder, one does not know what Dr Lai’s opinion is. Such uncertainty undermines Dr Lai’s opinion, and
(b) the opinion of Dr Diebold should be preferred.
I now turn to the application of the relevant legislation and the legal principles referred to above to the evidence in this matter.
In respect of Mr Santos’ allegation that he overused his left upper limb as a consequence of his accepted right shoulder injury, WorldMark submitted that, as Mr Santos is left-hand dominant, he would have been using his left upper limb in any event to carry out the tasks at work and at home referred to in his evidentiary statement dated 20 August 2020. I give little weight to this submission. Being left-hand dominant in the overused or overloaded upper limb does not, of itself, mean that it cannot be overused or overloaded. There are many two handed tasks at work and at home to which Mr Santos has referred in his evidence. The causal relationship must be established on the balance of probabilities from evidence in an acceptable form: Munce. Mr Santos has provided such evidence.
On 22 June 2017, Mr Santos underwent a right rotator cuff repair by Dr Lieu. I accept the unchallenged evidence of Mr Santos that, following surgery, he did not return to work until about 23 July 2017. To his credit, when Mr Santos returned to work, his right arm was still in a sling and he worked full hours, three days a week performing the duties he referred to in his evidentiary statement dated 28 August 2020, including, computer data entry using a keyboard and a mouse; answering telephone calls; supervising and managing the workshop. I accept Mr Santos’ evidence that at the end of his first day back at work, his left shoulder felt sore and that he continued to experience soreness in it at the end of each working day, which he tried to ignore because he was focusing on the management of the pain in his right shoulder. I also accept Mr Santos’ evidence that he could only use his left arm when carrying out tasks around the home during this period.
I accept Mr Santos’ unchallenged evidence that, from about April/May 2018, he was required to perform heavier work by WorldMark, including buffing cars using a buffering/polishing machine, which he described in detail in his evidentiary statement dated 28 August 2020 and the other duties described in that statement. I accept that Mr Santos avoided placing a strain on his right upper limb because of the ongoing pain he was experiencing in the right shoulder and the fear of making it worse. I accept that as Mr Santos continued to favour his right upper limb, the symptoms in his left shoulder increased to a point where he noticed a clicking sensation in it and consulted Dr Nguyen on 27 August 2019.
Mr Santos stated that he complained about the constant pain in both his shoulders to his exercise physiologist Mr King and to Dr Nguyen by about November 2017. There were no reports from Mr King in evidence. There was no reference to left shoulder symptoms in the PFD clinical records until the entry on 27 August 2019 wherein Dr Nguyen recorded a complaint of left shoulder clicking and on examination observed crepitus on all ranges of motion without impingement, together with sharp pain in the left trapezius (incorrectly referred to as right), possibly from overwork. Dr Lieu first referred to Mr Santos complaining of left shoulder symptoms in his report dated 2 January 2020 when Dr Nguyen referred him back for treatment and management of the left shoulder. Dr Bazina’s reports made no reference to Mr Santos complaining of left shoulder symptoms.
I have again exercised the caution referred to by Roche DP in Winter in circumstances where the concern of Mr Santos’ treating medical practitioners was with the treatment or impact of an obvious frank injury. Initially, the concern for Dr Nguyen was the significant symptoms in Mr Santos’ right shoulder. In respect of Dr Lieu, his concern was initially focused on the treatment of Mr Santos’ right shoulder symptoms. In respect of Dr Bazina, her concern was focused on the treatment of Mr Santos’ cervical spine symptoms.
While independent corroboration of complaints of pain will often be helpful and relevant in assessing the probative value of the evidence overall, such evidence is not a requirement that must be satisfied before a decision maker can feel actual persuasion about the existence of a fact in issue, particularly in the light of Mr Santos’ accepted evidence referred to above.
The CT and MR arthrograms of the left shoulder on 11 December 2019 demonstrated subacromial/subdeltoid bursal inflammation; a high-grade partial-thickness intrasubstance supraspinatus tear; bicipital tenosynovitis; and a SLAP tear with a para labral cyst anterosuperiorly. On 2 January 2020, in response to Mr Santos’ query whether his left shoulder symptoms were attributable to work, Dr Lieu explained that although it was a reasonable possibility, it may not have been the sole contributing cause.
Dr Diebold opined that, clinically, there was no significant left shoulder pathology and that the findings on the MRI scan were common low-grade physiological findings in Mr Santos’ age group and were an incidental finding. Despite the findings on the medical imaging, he maintained his diagnosis of a soft tissue strain of the trapezial muscles. Dr Diebold also opined that the only possible rationale by which the right shoulder injury and surgery may have caused the left shoulder pain, was through the favouring of one limb causing increased stress to the opposite limb. Dr Diebold emphasised that this has been shown not to occur. He referred to the American Medical Association Guides to the Evaluation of Disease and Injury Causation (second edition 2014) at page 758 that stated, amongst other things, that there were no credible studies that supported such a causal relationship and that the concept was not based on scientific evidence. Dr Diebold conceded above that the only possible rationale was through the favouring of one limb causing increased stress to the opposite limb but rejected the causal relationship because it was not based on medical science. He did not adequately explain the reasoning behind the proposition and I found the very short extracts from the quoted literature unconvincing. He was dismissive of the possibility of a consequential condition. Whilst it is accepted that a doctor does not need to provide elaborate or detailed explanations for his conclusion, more than a mere “ipse dixit” (an assertion without proof) is required. I find that Dr Diebold has made an assertion without proof in this case.
In some cases, medical science cannot determine the existence of a causal relationship. Spigelman, CJ explained in Seltsam Pty Ltd v McGuiness[93] that, in some cases, medical science cannot determine the existence of a causal relationship. Such a state of affairs is not necessarily determinative of the existence or non-existence of a causal relationship for the purposes of attributing legal responsibility. The commonsense approach to causation at common law, which applies in workers’ compensation cases, is quite different from a scientist’s approach to causation. Dr Diebold’s proposition, on the meagre explanation provided, did not say that medical science stated there was no possible connection. Therefore, a decisionmaker, after examining the evidence, may decide that it is probable.[94]
[93] Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262 at [93]
[94] JB Metropolitan Distributors Pty Ltd v Kitanoski [2016] NSWWCCPD 17; BC201601437at [94]
I found Dr Diebold’s opinion that there was no significant left shoulder pathology, including that which appeared on medical imaging unconvincing. Mr Santos had significant pathology in a number of tendons and areas of his left shoulder by 11 December 2019, being the date of the CT and MR arthrogram. I also found Dr Diebold’s opinion in respect of Mr Santos’ left shoulder condition unconvincing.
Dr Lai concluded that Mr Santos’ left shoulder condition was due to the favouring of the right shoulder, which had undergone surgery. Dr Lai noted that Mr Santos’ right shoulder was immobilised for a period of time post operatively. Dr Lai accepted that Mr Santos had to compensate with increased workload on his left shoulder. Two-handed activities had to be carried out with his left hand. He referred to the car polisher used by Mr Santos and the car detailing at work. He referred to two-handed activities of daily living. Dr Lai opined that, with the extra load on his left shoulder, it was inevitable that there would be a tearing of Mr Santos’ rotator cuff when extra load was being placed on that shoulder. I formed the view that Dr Lai had a thorough understanding of the activities undertaken by Mr Santos post operatively to date.
WorldMark was critical of what it considered inconsistencies in Dr Lai’s report. It submitted that one could not understand what Dr Lai’s opinion was in respect of the left shoulder because he referred to it as a frank injury and as a consequential condition. I reject that criticism. When Dr Lai referred to the left shoulder rotator cuff tear as being a frank injury, he was responding to a question as to whether there was a degenerative or disease condition that was caused or aggravated by the nature and conditions of Mr Santos’ work. It is clear to me that Dr Lai was excluding a disease condition and opining that the aetiology of the pathology in the left shoulder was caused by the favouring of the right shoulder.
WorldMark was critical of Dr Lai's opinion that it was inevitable, with the extra load on Mr Santos’ left shoulder, there would be tearing of the rotator cuff, because it was inconsistent with the fact that he had ceased working in November 2018, some nine months prior to first reporting the clicking sensation in his left shoulder to Dr Nguyen. I reject this criticism on the basis that Dr Lai provided a detailed summary of the activities Mr Santos had been involved in both at home and at work post operatively to date. Further, I have accepted Mr Santos’ evidence of experiencing soreness at the end of his first day back at work on 23 July 2017 whilst working with his right arm in a sling and increasing symptoms thereafter once his right arm came out of a sling to when he commenced carrying out heavier work at WorldMark in April/May 2018 and thereafter to date.
I prefer the opinion and conclusion of Dr Lai in respect of Mr Santos’ left shoulder condition over that of Dr Diebold for the reasons referred to above.
Having regard to the evidence, applying a common sense test and for the reasons referred to above, I am satisfied that Mr Santos has discharged the onus of proving on the balance of probabilities that there is a sufficient causal chain connecting the condition of his left shoulder to the accepted injury to the right shoulder on 27 January 2017 and I find accordingly.
The claimed expenses under section 60 of the 1987 Act
On the evidence and having received an award in his favour, Mr Santos is entitled to recover the cost of reasonably necessary medical, hospital and related expenses in respect of the injuries to his right shoulder, cervical spine and left shoulder under section 60 of the 1987 Act and I make a general order in this regard.
The claim for permanent impairment under section 66 of the 1987 Act
Mr Santos submitted that, subject to my findings, the matter should be remitted to the President of the Commission for referral to a Medical Assessor to certify the degree of whole person impairment as a result of injury on 28 January 2017.
I will remit the matter to the President for referral to Medical Assessor to assess the degree of permanent impairment of Mr Santos’ right upper extremity (right shoulder), spine (cervical spine), left upper extremity (left shoulder) and the skin (scarring - TEMSKI) as a result of injury on 28 January 2017.
CONCLUSION
My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.
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