Scott v Australian Unity Home Care Services Pty Ltd
[2021] NSWPIC 329
•2 September 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Scott v Australian Unity Home Care Services Pty Ltd [2021] NSWPIC 329 |
| APPLICANT: | Gina Scott |
| RESPONDENT: | Australian Unity Home Care Services Pty Ltd |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 2 September 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments of compensation for partial incapacity for a closed period of 15 weeks for injury to cervical spine and right shoulder; respondent concedes injury to right shoulder but disputes injury to cervical spine; claim for injury to cervical spine based upon section 4 (b)(ii) of the Workers Compensation Act 1987 (1987 Act); reference to AV v AW; Held – worker’s employment was main contributing factor to aggravation of degenerative disease in the cervical spine; order for weekly payments of compensation pursuant to section 37 of 1987 Act. |
| DETERMINATIONS MADE: | 1. The applicant sustained an injury to her cervical spine in the course of her employment with the respondent by way of a disease injury as provided for by section 4 (b)(ii) of the Workers Compensation Act 1987 (the 1987 Act), with a deemed date of injury of 2 April 2020. 2. The applicant had a partial incapacity for work from 20 January 2021 to 2 May 2021 as a result of an injury to her right shoulder and cervical spine sustained in the course of her employment with the respondent. |
| ORDERS MADE: | 1. The respondent is to pay the applicant weekly payments of compensation at the rate of $187.48 per week from 20 January 2021 to 2 May 2021 pursuant to section 37(3) of the 1987 Act. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Gina Scott, claims that she sustained an injury to her right shoulder and cervical spine while employed as a home care worker for the respondent, Australian Unity Home Care Services Pty Ltd, as a result of undertaking cleaning work, with a deemed date of injury of 2 April 2020.
The respondent concedes that the applicant sustained an injury her right shoulder, but disputes that the applicant sustained an injury to her cervical spine.
Weekly payments of compensation were made to the applicant until 19 January 2021. A dispute notice was issued on 5 January 2021 wherein it was determined that any ongoing incapacity claimed by the applicant was due to a pre-existing and non-compensable neck condition and no longer attributable to her right shoulder injury.
The applicant began to receive weekly payments of compensation on 3 May 2021 for a separate and distinct psychological injury which she sustained in the course of her employment with the respondent.
The dispute before the Commission therefore became a claim for weekly payments of compensation for a closed period between 20 January 2021 and 2 May 2021.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) whether the applicant sustained an injury to her cervical spine in the course of her employment with the respondent (section 4 of the 1987 Act), and
(b) whether the applicant was partially incapacitated for work as a result of an injury sustained to the right shoulder and cervical spine between 20 January 2021 and 2 May 2021 (sections 33 and 37 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 27 August 2021. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Carney appeared for the applicant, instructed by Mr Counter. Mr Combe appeared for the respondent, instructed by Ms Bentley.
The hearing was conducted by telephone in accordance with protocols set by the Commission as a result of the coronavirus pandemic.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 23 August 2021; and
(d) Application to Admit Late Documents filed by the respondent on 23 August 2021.
Oral evidence
There was no application to adduce oral evidence or to cross examine the applicant.
The applicant’s evidence
The applicant has provided statements dated 11 May 2021 and 9 August 2021.
The applicant states that she commenced employment as a domestic cleaner/home care worker with the respondent in February 2017. She states that most of the work allocated to her was cleaning work rather than personal care tasks, and that she would often work with her arms above head height, such as cleaning windows, inside showers, ceiling fans, and kitchen cupboards. She also states that her job involved repetitive bending. The applicant states that she was contracted to work 40 hours per fortnight, but would sometimes do 60 hours per fortnight.
The applicant states that she began to experience stiffness and pain in her right shoulder and the base of her neck in December 2019. She states that she had some time off work in Christmas 2019 but continued to experience those symptoms and attended Dr Ismail on 1 April 2020. She states that she had a lump on the right side of her neck when she saw Dr Ismail on 1 April 2020.
The applicant states that she had no capacity for work until 20 April 2020, but then returned to six hours of work each day for five days per week. She states that she still did cleaning work but did not do any overhead work.
The applicant states that on 20 August 2020 her capacity for work was downgraded to three hours per day for three days per week. She states that light duties were withdrawn by the respondent on 3 March 2021 and that she has been unable to return to any form of employment since then.
The medical evidence
The clinical records from the applicant’s general practitioner, Dr Ismail, are in evidence.
The notes record that on 1 April 2020 the applicant attended Dr Ismail in regard to a lump on the right side of neck which had been present for six weeks. The notes include: “Not painful” and “pt feels it is growing.”
Two days later on 3 April 2020 the applicant’s attendance was recorded as: “still has right shoulder pain which appears due to tendinosis.”
The clinical records include the reports of ultrasounds of the right shoulder and thyroid on 4 May 2020. The ultrasound of the thyroid reports enlarged right and left hemi thyroid lobes.
There are some 10 attendances by the applicant upon Dr Ismail between 3 April 2020 and 27 July 2020 for treatment for the applicant’s right shoulder and with no specific mention of neck symptoms. Although on 26 May 2020 there is a note of worsening right shoulder pain and that “pain radiates to right arm and towards right scapula.”
Dr Ismail provides some handwritten answers on 22 May 2020 to questions sought on behalf of the respondent, which includes a diagnosis of bursitis in the right shoulder, but with no mention of the cervical spine.
On 20 August 2020 Dr Ismail records further worsening of right shoulder pain and: “she also has pain on neck palpitation mid line C7 level and right facet joint.” There is the record of a referral for a CT scan of the neck, with a note of: “Neck pain radiating to right shoulder.”
Dr Ismail has provided a report dated 21 January 2021. In that report Dr Ismail provides details of how he came to provide a diagnosis of an injury to the cervical spine as follows:
“…her main complaint was pain in the right shoulder where she couldn’t make proper lifting movements and she was dropping things from her hand. She had later on an US which conformed diagnosis of bursitis in right shoulder and she was referred for physiotherapy and ultrasound guided cortisone injection 29.5.20. Due to lack of improvement in right shoulder pain and movements and pain in cervical spine. It sounded that patient has referred pain from her neck. CT cervical spine was requested on the 20.8.20 which confirmed Degenerative cervical disc disease.”
Dr Ismail also provides in that report his understanding of the duties undertaken by the applicant which he considers was a substantial contributing factor to the injury to her right shoulder and neck:
“Gina had to attends several clients every week to clean houses. She was cleaning moulds off ceilings, glass doors. She used her arms lifted up for scrubbing and wiping with neck in hyperextended position. She was using vacuum cleaner to remove spider webs from walls, ceilings, windows when she had to look up for good amount of time to perform her duties. She was cleaning cupboards where she needs to reach out to the back of cupboard in outstretched position.”
The notes from Dr Ismail record that on 27 July 2020 he referred the applicant to Ms Cindy Murphy for physiotherapy treatment for the condition of the right shoulder. Ms Murphy has provided a report dated 9 September 2020 wherein she writes that she initially saw the applicant on 7 August 2020 and records that the applicant believed the onset of shoulder pain was due to repetitive work for the previous three and a half years.
Ms Murphy records that on initial examination she found full range of motion in the right shoulder, but cervical movement was stiff, and the lower cervical and upper thoracic spine were tender to palpate. Ms Murphy writes that she believed the applicant’s shoulder and arm pain was due to cervical radiculopathy.
There are also clinical records from Forerunner Physiotherapy in evidence, being where Ms Murphy practices from, and which include a sketch from that first consultation with the applicant which marks aching in the applicant’s upper arm and numbness in the right hand.
The applicant was also referred by Dr Ismail to Dr Ferch, neurosurgeon. Dr Ferch records that he saw the applicant on 12 November 2020. In a report of the same date, Dr Ferch records that the applicant felt that symptoms across her neck and down both arms were precipitated by work as a domestic cleaner with repetitive lifting and that those symptoms have been persistent since November 2019.
Dr Ferch also provides answers to questions asked by Employers Mutual in a report dated 27 November 2020. Dr Ferch is asked whether he believes the applicant’s employment is the main contributing factor to her symptoms and responds:
“Ms Scott described the onset of her symptoms as being related to repetitive lifting during the course of her work as a cleaner. Therefore, her employment with Australian Unity is the main contributing factor to her current symptoms.”
Dr Ferch also answers a question as to the specific mechanism of injury as follows:
“Ms Scott described the development of her symptoms due to repetitive lifting in association with her work as a cleaner. This activity could potentially exacerbate symptoms of cervical spondylosis or peripheral nerve compression.”
Dr Bodel, orthopaedic surgeon, has provided a report at the request of the applicant’s solicitors dated 1 March 2021. It is noted that Dr Bodel conducted a consultation by phone and without the assistance of a video link.
Dr Bodel records that the applicant worked very long and hard hours in domestic cleaning work and that by the end of 2019 she noticed increased fatigue and the development of pain in the region of her right shoulder, the base of her neck on her right side and the upper part of the right arm.
Dr Bodel opines that the applicant developed neck pain and right shoulder and arm pain as a consequence of the nature and conditions of her employment, and that there has developed rotator cuff pathology and aggravated degenerative change in the cervical spine due to long hours of domestic work.
Dr Bodel writes:
“I do consider employment as the main substantial contributing factor by way of aggravation, acceleration, exacerbation and deterioration of the degenerative disc disease at CS/6 in the cervical spine and the rotator cuff bursitis in the right shoulder.”
Dr Bodel also writes:
“It appears likely, on the basis of her current clinical presentation, that she does suffer a disease process of gradual onset which is the degenerative disc disease in the cervical spine principally at CS/6 and also the rotator cuff pathology associated with bursitis in the region of the right shoulder. I think it unlikely that there was a ‘frank injury’ of the cervical spine or the shoulder on 02 April 2020. There is no consequential injury. It appears that both areas became symptomatic gradually over time associated with work in general.”
Dr Casikar, neurosurgeon, has provided a report at the request of the respondent dated 15 December 2020. Dr Casikar was able to see the applicant in order to prepare this report.
Dr Casikar diagnoses the applicant as having shoulder symptoms due to the nature and conditions of her employment and constitutional degenerative disease of the cervical spine.
Dr Casikar opines that there has been no specific mechanism of injury. He considers that the main reason for her complaints is a combination of cervical spondylosis, which is a genetically detrimental medical condition, and a long history of depression.
Dr Casikar considers that the impediment to this is the significant pain focus issues of the applicant. Dr Casikar states that his clinical examination of the applicant suggests abnormal illness behaviour and there should be further investigation by a psychologist.
Dr Casikar has provided a further report dated 9 August 2021 wherein he confirms that the applicant only has degenerative disease of the cervical spine which is not related to her employment. He also writes:
“If there has been an aggravation of her pre-existing degenerative disease, the aggravation normally would have resolved in a few weeks. Her continued complaints of pain in the neck does not indicate an aggravation beyond the initial period of the alleged workplace injury. Aggravations do not last for more than 3-6 weeks unless there is verifiable clinical evidence of a nerve root involvement.”
FINDINGS AND REASONS
Whether the applicant sustained an injury to her cervical spine in the course of her employment with the respondent
Mr Carney for the applicant submits that the symptoms recorded by Dr Ismail between April and August 2020 could have been referred from the applicant’s cervical spine. He submits that the lack of any specific reference to the neck by Dr Ismail is not significant when symptoms from the neck were identified by Ms Murphy on her initial examination, and then by the opinion of Dr Ferch.
Mr Carney submits that with due respect to Dr Ismail, it is only once the applicant has seen Dr Ferch that the applicant’s pains emanating from her neck are correctly noted and diagnosed.
Mr Combe for the respondent submits that the applicant’s initial attendance upon Dr Ismail in regard to her neck was due to a thyroid problem, which was not related to her employment with the respondent. He submits that there is no reference to the applicant having any problems with her neck which were related to her employment in the notes and material from Dr Ismail for some four months. Furthermore, during that time the applicant conceded that she was not doing overhead work, which she now claims was a cause of the onset of symptoms in and from her neck.
Mr Combe also submits that both Dr Ferch and Dr Bodel have not considered that the first reference to neck symptoms being caused by work do not appear for some four months after the applicant begins to attend Dr Ismail, during which time the applicant was placed on alternate duties. He submits that there is a gap in the understanding of those experts of the development of the applicant’s symptoms in her neck and their opinions should not be accepted.
Mr Combe submits that the evidence relied upon by the applicant is not sufficient to meet the onus of proof required by the applicant to succeed in this dispute.
There is some force to the submissions made by Mr Combe based on the clinical records from Dr Ismail for the period from 1 April 2020 to 20 August 2020. However, I am also mindful of what was said by Santow JA in Nominal Defendant v Clancy [2007] NSWCA 349, (Clancy) at [54]:
“While clinical notes, as McColl JA observes, may in common experience be the raw data on which diagnosis and opinions are based, it does not follow that they will be comprehensive.”
Santow JA then said at [55]:
“I would add that clinical notes are written in the course of a busy practice where the clinician is primarily there to observe and administer treatment. They should not be construed with the minute attention one might give a formal legal document.”
I would agree with the submission made by Mr Carney that there are details of symptoms recorded in the medical material from 3 April 2020 to 20 August 2020 which indicate that it is likely that the applicant sustained an injury her cervical spine as well as to her right shoulder.
The notes made by Dr Ismail on 3 April 2020, 6 April 2020 and 7 May 2020 only record right shoulder pain or symptoms. On 22 May 2020 Dr Ismail confirms in some handwritten answers to questions sought on behalf of the respondent that he has made a diagnosis of bursitis in the right shoulder.
However, four days later on 26 May 2020, Dr Ismail records that the applicant has pain in all directions from her right shoulder, including pain radiating down the right arm and towards the right scapula. This entry provides a strong indication of symptoms which were not isolated to the right shoulder and were quite likely referred from the cervical spine.
Dr Ismail also writes in his report dated 21 January 2021 that in coming to his diagnosis of an injury to the cervical spine, the applicant’s main complaint was pain in the right shoulder, but then includes the applicant not being able to make proper lifting movements and dropping things from her hand. Those limitations recorded by Dr Ismail, especially of dropping things from the hand, indicate the possible implication of injury to the cervical spine.
Dr Ismail’s notes record that on 19 June 2020 he discussed physiotherapy treatment with the applicant and a referral was provided to her, but the notes also indicate that there was a delay in the applicant seeing a physiotherapist. The applicant ultimately attended upon Ms Murphy on 7 August 2020, and although the applicant presented for treatment of her right shoulder, Ms Murphy identified symptoms referable to injury to the cervical spine.
Of particular significance from the material from that first consultation on 7 August 2020 is the sketch which marks aching in the applicant’s upper arm (rather than the right shoulder) and numbness in the right hand. There is nothing to indicate from the material provided by Ms Murphy that those complaints of aching in the upper arm and numbness in the right hand had only recently been experienced by the applicant.
I should emphasise that I am not making a finding that the applicant did sustain an injury to her cervical spine based upon the entry made by Dr Ismail on 26 May 2020, the observations of the applicant made by Dr Ismail in his report dated 21 January 2021, or the records made by Ms Murphy on her initial consultation with the applicant on 7 August 2020. However, all of that evidence does indicate that the applicant was experiencing problems not only with her right shoulder but also her neck.
In my view, the chronology of events and treatment set out by Dr Ismail in his report dated 21 January 2021 sets out a gradual understanding by Dr Ismail that the applicant had symptoms emanating from her neck in addition to her right shoulder, and which could be regarded as being related to her cleaning work with the respondent. Dr Ismail writes in that report that the applicant’s main complaint was her right shoulder, but he recorded symptoms referable to neck dysfunction. The applicant is referred some time later for physiotherapy, and after further consultations with the applicant, Dr Ismail concludes: “It sounded that patient has referred pain from her neck.”
The applicant then attends Dr Ferch in November 2020, who accepts that the applicant has had symptoms in her neck and down her arms since November 2019, and opines from the history and details provided to him that that applicant’s employment is the main contributing factor to her symptoms.
Mr Combe submits that there is no corroborative medical evidence of neck symptoms from late 2019, and there is no medical treatment sought at all by the applicant for any work-related condition until 3 April 2020. I do not consider that to be an impediment to the applicant’s claim. The applicant states that she continued to experience symptoms into the early part of 2020 after she had returned from some holidays and eventually sought treatment from Dr Ismail on 3 April 2020. That seems to be a logical and reasonable course of behaviour on the part of the applicant.
The onus of proof which is borne by the applicant in a dispute such as this was summarised by McDougall J (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55]:
“The position may be summarised as follows:
1.A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
2.Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
3.Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and
4.A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
While there is no specific reference to neck symptoms caused or related to the applicant’s employment in the four months from 3 April 2020 to 20 August 2020 in the clinical notes provided by Dr Ismail, I have an actual sense of persuasion from the medical records which I have referred to during that same period, the description provided by Dr Ismail of how he came to diagnose an injury to the applicant’s cervical spine, and from the applicant’s evidence, that the applicant was experiencing symptoms emanating from her cervical spine from late 2019 and up until August 2020.
However, the onus of proof required of the applicant in this dispute extends to her being able to establish that the cervical symptoms she has experienced have been sustained in the course of her employment with the respondent.
The applicant’s case is based upon meeting the definition of ‘disease injury’ as provided for by section 4(b)(ii) of the 1987 Act:
“In this Act:
Injury:
………….
(b) includes a disease injury, which means:
………….
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.”
The application of section 4(b)(ii) of the 1987 Act was well summarised by DP Snell in AV v AW [2020] NSWWCCPD 9 (AV v AW) at [76-78]:
“76. Where the relevant aggravation involves both employment and non-employment factors, the evaluative process involves a consideration of the causative role of both. An evaluation that involved only employment factors would leave the provision with no work to do. This would be inconsistent with the context of the provision. It would also be inconsistent with the plain meaning of the words. There is a general presumption against surplusage in statutes.
77. It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.
78. The following may be taken from the above:
·(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
·(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
·(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”
Considerable weight should be given to the opinion provided by Dr Ferch in his capacity as the applicant’s treating specialist. I acknowledge that it would seem that Dr Ferch has only seen the applicant on the one occasion and perhaps the usual weight afforded to the opinion of a treating specialist who has seen a patient over several consultations and perhaps several years should not be extended to the opinion provided by Dr Ferch.
Nonetheless, Dr Ferch bears responsibility for the treatment of the condition affecting the applicant’s cervical spine, which is based not only on the diagnosis of that condition but also on the cause or causes of that condition. Dr Ferch has considered the cause or causes of the symptoms complained of by the applicant in and from her cervical spine, and after due consideration has opined that the applicant’s employment has been the main contributing factor to her current symptoms.
Mr Combe submits that Dr Ferch is not aware of the full history of complaints and treatment of the applicant’s neck prior to his consultation in November 2020, which compromises the opinion which he provides. However, I have already provided my reasons as to why I am satisfied that the applicant was experiencing symptoms emanating from her neck from late 2019.
Dr Bodel supports a finding that the applicant’s employment has been the main contributing factor to the aggravation, acceleration, exacerbation and deterioration of the degenerative disc disease in the applicant’s cervical spine. The same criticism made by Mr Combe of Dr Bodel failing to be aware of the full history of complaints and treatment of the applicant’s neck is countered by my acceptance that the applicant was experiencing symptoms emanating from her neck from late 2019.
Although Dr Ferch provides a brief summary of the work that the applicant had undertaken with the respondent in forming an opinion on the cause of the applicant’s symptoms, it is apparent that Dr Bodel has undertaken a consideration and understanding of the causal factors in the aggravation of the disease affecting the applicant’s cervical spine. This is despite Dr Bodel only able to speak by telephone to the applicant.
Dr Bodel records details of the work undertaken by the applicant and the onset of her symptoms, and also refers to the report of Dr Ismail dated 21 January 2021 and writes: “This is consistent with the history of injury as described.” I agree with a submission made by Mr Carney that Dr Ismail provides a good description of the mechanism of injury in that report dated 21 January 2021, which in turn is relied upon by Dr Bodel when forming his opinion on the cause of the applicant’s injury.
I prefer the opinion on the cause of the applicant’s neck symptoms provided by Dr Ferch in his role as the applicant’s treating specialist, and which is expanded upon by Dr Bodel. I consider that when the reports from Dr Ferch and Dr Bodel are read together, there has been a sufficient consideration of competing causal factors, which is required by the test set in AV v AW, for me to be satisfied that the applicant’s employment has been the main contributing factor to the aggravation of a degenerative disease affecting her cervical spine.
I prefer the opinions of Dr Ferch and Dr Bodel on the issue of causation of injury to the cervical spine compared to the opinion provided by Dr Casikar.
There is little information recited by Dr Casikar in his first report dated 15 December 2020 of the actual duties that were undertaken by the applicant, and Dr Casikar does not consider whether the work undertaken by the applicant with the respondent could have aggravated the degenerative disease in her cervical spine. Dr Casikar merely states that there was no specific mechanism of injury.
Moreover, Dr Casikar does not explain how the same work that the applicant had been doing with the respondent caused symptoms in the shoulders but did not cause symptoms in the neck.
That first report from Dr Casikar pre-dates the report provided by Dr Ismail dated 21 January 2021, which I have already observed provides a very helpful summary of the work activities which the applicant did undertake while employed with the respondent. However, there is no acknowledgement or understanding by Dr Casikar in his second report of what those work activities might be and whether such activities could have caused a material aggravation of the degenerative condition of the applicant’s cervical spine.
Dr Casikar is prepared to concede in his second report that the applicant may have had an aggravation of her pre-existing degenerative disease in the cervical spine, but that such aggravation would have resolved within a few weeks. However, the clinical records from Dr Ismail and Forerunner Physiotherapy, and the Certificates of Capacity issued by Dr Ismail, indicate that the applicant has had persisting symptoms in her neck throughout the latter part of 2020.
I am not satisfied that Dr Casikar has undertaken a considered evaluation of all the relevant causal factors to determine whether the applicant’s employment has been the main contributing factor to the aggravation of the degenerative disease in the cervical spine when he has not considered the effect of the applicant’s work and he merely states that there was no specific mechanism of injury.
Having undertaken an evaluative process as required by the decision of AV v AW, I am satisfied from the records made by Dr Ismail and Ms Murphy, and the opinions provided by Dr Ferch and Dr Bodel, that the applicant’s employment while undertaking cleaning duties with the respondent was the main contributing factor to the aggravation of the degenerative disease in her cervical spine.
I should add that Dr Ferch was seemingly unaware of the applicant’s thyroid condition, and Dr Bodel was not fully appraised of the applicant’s thyroid condition, does not change the findings I have made from a review of the evidence.
The note made by Dr Ismail when he first saw the applicant for this problem was the lump on the neck was: “Not painful.” The applicant then proceeded to undergo an ultrasound and review by Dr Ismail for this condition. Mr Carney concedes that the ultrasound which the applicant underwent on her neck on 4 May 2020 was for her thyroid condition and not for symptoms related to any work injury.
I have referred to various pieces of evidence between April 2020 and August 2020 which support a finding that is to be found in the opinions of Dr Ferch and Dr Bodel on the issue of injury, which from my review of the evidence are quite distinct from the complaints recorded by Dr Ismail in regard to the applicant’s thyroid condition.
The claim for weekly payments of compensation
The termination of weekly payments of compensation that were being made to the applicant in January 2021 was based upon a determination by icare that any ongoing incapacity claimed by the applicant was due to a pre-existing and non-compensable neck condition and no longer attributable to her right shoulder injury.
However, I have accepted that the applicant has sustained an injury to her cervical spine in the course of her employment with the respondent.
The respondent also concedes that the applicant sustained an injury to her right shoulder, although a further dispute notice was issued on 21 May 2021 wherein it was determined that the right shoulder had resolved and there was now no incapacity which resulted from the applicant’s work injury. That further dispute notice was issued subsequent to the period of weekly payments of compensation claimed by the applicant in this dispute.
Dr Casikar writes in his report dated 9 August 2021 that the applicant had developed a shoulder injury due to her employment but then writes: “I concluded that the injury had resolved because the movements of her shoulder were complete and appeared to be pain free.” However, I could not locate that conclusion in Dr Casikar’s initial report dated 15 December 2020.
Having accepted that the applicant has sustained an injury to her cervical spine and there being no satisfactory evidence which challenges the applicant also having ongoing symptoms in her right shoulder, I consider the best evidence regarding the applicant’s capacity for work during the 15 weeks of compensation claimed in this dispute is to be found in the Certificate of Capacity issued by Dr Ismail on 18 March 2021, which is in the middle of the period which is in dispute.
As the applicant’s general practitioner who has seen the applicant on a regular basis from the onset of her treatment, Dr Ismail is in a good position to determine the restrictions to be placed upon the applicant’s capacity for work due to the injury to her right shoulder and neck. Dr Ismail has certified the applicant fit for three hours of work per day for three days per week with restrictions on lifting and pushing and pulling.
Although Dr Bodel did not see the applicant for the purposes of his report dated 1 March 2021, he reviewed relevant material and did not disagree with the restrictions recommended by Dr Ismail.
The Wages Schedule filed by the applicant states that the applicant’s ability to earn in suitable employment is $291.48 per week. The respondent has not challenged this, and that figure would seem to be consistent with the restricted hours of work certified by Dr Ismail.
The parties agree that the applicant’s pre-injury average weekly earnings (PIAWE) are $598.70 per week. Although the applicant states that she worked between 20 January 2021 and 3 March 2021, there is no evidence that she worked for at least 15 hours per week. Therefore, her entitlement to weekly payments for compensation for the entire period claimed is to be determined pursuant to section 37(3) of the 1987 Act.
Eight per cent of PIAWE amounts to $478.96 per week. The difference between $478.96 and $291.48 amounts to $187.48. There will therefore be an award made in favour of the applicant pursuant to section 37(3) of the 1987 Act of $187.48 per week from 20 January 2021 to 2 May 2021.
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