Singh v ADFA Jamison Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Singh v ADFA Jamison Pty Ltd [2023] NSWPIC 102
APPLICANT:	Dropati Singh
RESPONDENT:	ADFA Jamison Pty Ltd
Member:	Cameron Burge
DATE OF DECISION:	13 March 2023
CATCHWORDS:	WORKERS COMPENSATION - Claim for permanent impairment compensation; injuries to left upper extremity and scarring not in issue; applicant claims consequential condition to cervical spine; respondent alleges neck symptoms caused by degenerative changes or pain syndrome; Held – on a common-sense evaluation of the lay and expert evidence, the applicant’s cervical spine condition was as a result of the accepted left upper extremity injury; matter remitted to the President of the Personal Injury Commission for referral to Medical Assessor to determine permanent impairment arising from the injuries and consequential conditions to the left upper extremity (elbow and shoulder) and cervical spine, together with scarring (TEMSKI).
determinations made:	1. On 9 October 2003, the applicant suffered an injury in the course of her employment with the respondent to her left upper extremity (elbow) and a consequential condition to her left upper extremity (shoulder), together with attendant scarring. 2. As a result of the injury referred to in [1] above, the applicant also sustained a consequential condition to her cervical spine. 3. The matter is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following: Body systems referred: left upper extremity (shoulder and elbow), scarring (TEMSKI) and cervical spine. Date of injury: 9 October 2003. Method of assessment: whole person impairment. 4. The documents to be referred to the Medical Assessor to assist with their determination are to include the following: (a) Application to Resolve a Dispute and attachments; (b) Reply and attachments; (c) Respondent’s Application to Admit Late Documents dated 16 January 2023 and attachments, and (d) Applicant’s Application to Admit Late Documents dated 17 January 2023 and attachments.

STATEMENT OF REASONS

BACKGROUND

On 9 October 2003, Ms Dropati Singh (the applicant) suffered a fall in the course of her employment as a cleaner with ADFA Jamison Pty Ltd (the respondent). There is no issue the fall caused injury to the applicant’s left upper extremity (shoulder and elbow), together with attendant scarring. These injuries will be the subject of a referral to a Medical Assessor.
The applicant alleges she also suffered a consequential condition to her cervical spine as a result of her injury. She alleges that as a result of having to wear her left arm in a sling for a protracted period following surgery, she began experiencing worsening and ongoing symptoms in her neck.
On 11 November 2005, Consent Orders were filed in the then Workers Compensation Commission providing for the provision of permanent impairment compensation to the applicant in respect of an 8% whole person impairment. There is no issue the applicant is entitled to a further assessment of her permanent impairment arising from the injury.
By s 78 notice dated 5 May 2020, the respondent disputed the alleged consequential condition to the cervical spine, alleging the applicant’s neck symptoms relate purely to pre-existing degenerative changes.

ISSUE FOR DETERMINATION

The only issue in dispute is whether the applicant suffered a consequential condition to her cervical spine.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The parties attended a hearing on 17 January 2023. Mr Schipp of counsel appeared for the applicant instructed by Ms Wen. Mr McEnaney of counsel appeared for the respondent instructed by Ms Nguyen.
At the telephone hearing, the applicant made clear that, notwithstanding the formal pleading, the alleged impairment to the cervical spine related to a consequential condition, not a frank injury. It was on this basis that the matter proceeded at hearing.
At the hearing, the respondent objected to the admission into evidence of the further report of the applicant’s independent medical examiner (IME) Dr Lee dated 13 January 2023, which forms part of the documents attached to the applicant’s Application to Admit Late Documents (AALD). After hearing submissions from both counsels, I allowed the report into evidence and it will, along with the other documents lodged in this matter, be taken into consideration in the making of this decision.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (the Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachments;
(b)    Reply and attachments;
(c)    respondent’s AALD and attachments dated 16 January 2023, and
(d)    applicant’s AALD dated 17 January 2023 and attachments.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the applicant suffered a consequential condition to her cervical spine

It is important that the outset to establish the relevant test for determining the presence of a consequential condition. In Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Deputy President Roche dealt with the issue of whether the injured worker’s shoulder condition resulted from mobilising whilst recuperating from accepted back surgery. At [35] and following, Roche DP stated:
“35. By asking if Mr Kumar has suffered an s 4 injury to his right shoulder, the Arbitrator erred in his approach and asked the wrong question. This error affected his approach to the medical evidence and his conclusion. Mr Kumar’s claim was always, as the respondent has conceded on appeal, that the right shoulder condition, and the need for surgery, resulted from the accepted back injury. It was not necessary for him to prove that he suffered a S4 injury to his right shoulder.
36. The Commission has considered claims of this kind in several decisions (Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4; Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Australian Traineeship System v Turner [2012] NSWWCCPD 4 and has consistently applied the principles in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).”
The decision in Kooragang makes it clear that in determining questions of causation in a workers compensation context, what is required is a common sense evaluation of the causal chain, including all medical and lay evidence.
The fact an applicant does not have to establish the pathology of a consequential condition was further reinforced by the decision of Snell DP in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan). In that matter, a schoolteacher made a claim for consequential conditions to her cervical spine and shoulders following an accepted initial injury to her power of speech. The Senior Arbitrator at first instance found there was a consequential injury and the employer appealed. In the initial decision, the Senior Arbitrator noted:
“My role is not to determine whether there is in fact pathology, but whether there is a consequential condition.
I am satisfied that there is sufficient evidence to also refer the question of permanent impairment resulting from the condition in Ms Brennan’s shoulders to an approved medical specialist.”
At [100] and following in Brennan, Snell DP summarised a number of presidential decisions concerning consequential condition, including the decision in Moon v Conmah. In Moon, Roche DP at [44]-[46] described what is required to establish a consequential condition, a decision which Snell DP in Brennan agreed with. Roche DP in Moon said:
“44.   The evidence in support of this allegation is brief but clear. It is obvious that Mr Moon has experienced significant restrictions in the use of his right arm and shoulder for several years. It is not disputed that that restriction has resulted from his employment with Conmah. As a result, he has used his left arm and shoulder to compensate for his right shoulder condition. Therefore, Mr Moon is claiming compensation for a consequential loss. That is, a loss or impairment that he alleges has resulted from his previous compensable injury to his right shoulder (see Roads and Traffic Authority(NSW) v Malcolm (1996) 13 NSWCCR 272).
45.    It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in s 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he suffered an ‘injury’ to his left shoulder in the course of his employment with Conmah, they asked the wrong question.
46.    The test of causation in a claim for lump-sum compensation is the same as it is in a claim for weekly compensation, namely, whether the loss ‘resulted from’ the relevant work injury (see Sidiropoulos v Able Placements Pty Ltd [1998] NSWCC 7; Rail Services Australia v Dimovski & Another [2004] NSWCA 267.”
Deputy President Wood set out the circumstances in which an examination and diagnosis of a consequential condition is relevant and appropriate in Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3.
In that matter, the applicant alleged an overuse consequential condition to his left upper extremity. Senior Member Bamber (whose decision was affirmed on appeal) noted the applicant’s own independent medical examiner (IME) had diagnosed a central pain syndrome affecting the body part alleged to have suffered the consequential condition, and as such there was no basis on which to find the left arm symptoms were caused by overuse.
What is apparent from the decision in Grant is the requirement to be persuaded of the existence of the fact the applicant suffered a consequential condition. Wood DP concluded Senior Member Bamber was correct and noted the decisions in Conmah and Arquero v Shannons Anti Corrosion Engineers Pty Ltd [2019] NSWWCCPD 3 (Arquero) were able to be distinguished on the basis that an examination of the available material revealed clear evidence and medical opinion that the workers condition in those early matters was a consequence of the work-related injury.
In Arquero, the worker suffered a right knee injury in 2000, and in 2014 developed symptoms in his left knee. In that matter, there was clear evidence of altered gait and post-surgery leg length discrepancy consistent with the worker’s own evidence.
The effect of these authorities is that where the cause of an alleged consequential condition is clear on the evidence, there is no need to identify relevant pathology. As Snell DP observed in Brennan, the relevant authorities do not suggest any finding of consequential condition necessarily makes the identification of pathology necessary. It is sufficient to find, if the evidence supports it, that a condition results from an employment injury.
As Wood DP noted in Grant, “while there are matters involving a claim for compensation in respect of a condition consequent upon an injury where identification of the diagnosis is not necessary or relevant, each case turns on its own facts and the available evidence”. Where there is tension between the allegation of consequential condition based, for example, on overuse, and various medical opinions that symptoms were caused by something other than overuse, it is appropriate to enquire whether a diagnosis connected with the alleged cause of the consequential condition can be made out.
In this matter, there is competing evidence as to the cause of the applicant’s cervical spine issues. The respondent alleges the applicant’s symptoms are in fact either the result of a pain syndrome which she is suffering or alternatively a result of congenital changes to her cervical spine vertebrae.
However, the mere existence of competing evidence is not of itself enough to necessitate the making of a diagnosis in cases surrounding alleged consequential conditions. The question to be determined is whether, having regard to all the evidence, the applicant has discharged the onus of proving her cervical spine condition has arisen as a result of the prolonged wearing of a sling following shoulder surgery. For the following reasons, I believe that onus of proof has been discharged.
Mr Schipp submitted a common sense evaluation of the causal chain would lead the Commission to a finding of consequential condition in the applicant’s neck. He submitted the claim for consequential condition is put on two basis, namely:
(a) an aggravation of underlying pathology at C5/6 as found by the applicant’s IME
Dr Lee, or
(b) on respondent’s case, even if the cervical spine symptoms are caused by either a pain syndrome or degenerative changes, that pain syndrome was brought about by the accepted injuries to the left upper extremity, and any underlying pathology to the cervical spine was aggravated by the sling which the applicant wore as a result of the surgery necessitated by the accepted injuries.
The applicant’s statement evidence referred to ongoing issues with her left elbow and shoulder. She stated she had left elbow surgery at the hands of Dr Popoff in 2007. She stated her left shoulder condition did not improve over time, and it began to impact her neck in that she felt a “pulling sensation” in the left side of her neck.
There is no issue the applicant came to have left shoulder surgery in 2017 at the hands of Dr Ireland. She states she was in a sling for a long time after the operation and “a couple of months from the surgery I started to notice the pain in my neck was getting worse and I was having more issues with my neck”.
Mr Schipp noted there were references to neck symptoms in the Workers Compensation Medical Certificates attached to the applicant’s AALD as early as February 2009, throughout 2010, 2011 and in 2013. He submitted these medical certificates aligned with references to neck issues in the general practitioner (GP) clinical notes.
Dr Lam, treating pain medicine physician, provided a report dated 5 September 2014 to the applicant’s GP in which he noted pain in the applicant’s shoulder and neck associated with headaches, linked to a flare-up in cold weather. A cervical spine MRI dated 17 January 2017 revealed:
“At the C5/6 level, there is a small focal posterocentral disc protrusion, slightly eccentric to the left side. This is causing mild canal stenosis with some effacement of the thecal sac along its left and anterolateral aspect. There is potential impingement of the C6 nerve root in this area as it exits the thecal sac. There is no foraminal narrowing.
At C6/7 level, there is mild posterior disc bulging without significant canal stenosis. There is no foraminal narrowing.”
That finding on MRI examination is consistent with the complaints referred to by Dr Manohar, treating pain physician of left-sided neck pain and reduced range of motion in January 2017.
The applicant noted the report of Dr Noore, treating pain specialist dated 28 March 2018. Dr Noore noted a diagnosis of chronic regional pain syndrome (CRPS) had been made by Dr Yin in 2017, prompting stellate ganglion nerve blocks. Mr Schipp submitted that although Dr Powell, IME for the respondent, did not diagnose CRPS, he did accept the presence of a pain syndrome. Mr Schipp then submitted the pain syndrome plainly developed as a consequence of the accepted injury, so even if Dr Powell was accepted by the Commission, there was sufficient basis to find a consequential condition to the applicant’s cervical spine.
Mr Schipp referred to the reports of the respondent’s IME, Dr Powell, and in particular that dated 23 March 2017. In that report, Dr Powell provided the following diagnosis:
“Ms Singh is a 62-year-old left-handed dominant lady who at the time of injuring her left elbow in a workplace incident on 8 October 2003 was employed by ADFA Jamison Pty Ltd as a cleaner/room attendant. She developed features of medial epicondylitis which after a period of prolonged conservative management was treated surgically by Dr Ivan Popoff. Her recovery was complicated by the development of a complex regional pain syndrome, and the development of chronic neck and shoulder pain. Further investigation revealed the evidence of degenerative disc disease at C5/6, and a full-thickness rotator cuff tear.”
In that report, Dr Powell assessed the applicant as suffering a 7% whole person impairment to her cervical spine, which he regarded as part of the applicant’s assessable impairment as a result of the injury. On 28 April 2020, Dr Powell provided a further report. He then made the following diagnosis:
“Unfortunately, Ms Singh remains symptomatic in relation to the cervical spine, left shoulder and left elbow. Examination today was characterised by diffuse tenderness and restricted range of motion in the cervical spine, shoulder and elbow. There was evidence of abnormal illness behaviour. There were no features of a complex regional pain syndrome.”
Notwithstanding that diagnosis, when specifically asked whether the applicant suffered any injury to her left shoulder or neck on 9 October 2003, Dr Powell replied:
“It would appear that her left shoulder and then cervical spine symptoms have developed as a part of the chronic pain syndrome. There is no evidence that she sustained any direct injury to the left shoulder or cervical spine the subject incident.”
Dr Powell was then asked whether the applicant developed a consequential condition to her cervical spine and, if so, the nature of the causal relationship between it and the accepted injury. In relation to the neck, Dr Powell said:
“I do not believe there is a direct causal relationship between the workplace incident in 2003 and the subsequent development of...cervical spine symptoms....
In relation to the cervical spine, an MRI scan in January 2017 identified multilevel changes of cervical spondylosis. These are constitutional in nature. They have no relationship to the workplace incident in 2003. They represented a degenerative disease process.”
In providing that opinion, Dr Powell does not appear to have taken into consideration the applicant’s prolonged wearing of a sling following her surgery in 2017, which her evidence discloses coincided with and (she alleges) caused the worsening of symptoms in her neck.
Having made his original diagnosis in 2017 linking the pain syndrome to the relevant injury, Dr Powell had then changed his opinion to say there was no causal link between the 2003 injury and the onset of neck symptoms. He also noted the rotator cuff tear to the left shoulder was degenerative in nature, but noted the left shoulder injury was accepted, “likely as part of the diagnosis of CRPS”.
As noted, Dr Powell indicated the changes in the applicant’s cervical spine were degenerative in nature and were therefore not related to the 2003 injury.
With respect, Dr Powell has addressed the underlying pathology and not the cause of any increase in the symptoms aggravated by the applicant wearing a sling for a prolonged period following the 2017 surgery, or by the effects of the pain syndrome which he had previously related to the 2003 injury. Dr Powell has not taken into consideration the temporal connection between the wearing of the sling and the onset of the worsening cervical spine pain.

As such, I am not persuaded by Dr Powell’s opinion and prefer the views of Dr Lee, namely that the prolonged wearing of the sling as a result of surgery to the accepted left shoulder injury caused the onset of a condition in the applicant’s cervical spine.
Mr McEnaney submitted a fall suffered by the applicant in 2010 constituted an intervening, non-work-related act. He noted that fall was referred to in the report of Dr Lam dated
21 June 2011, where Dr Lam said:
“Mrs Singh states in November 2010 while at a shopping centre, she slipped and fell, resulting in tearing a muscle in her back and hip region and flaring up her left shoulder pain. She recalls she was on crutches for two months and the pain in the shoulder region has not settled. At the present time, she is on Panadol and Tramal.
Mrs Singh states she has separated from her husband and is trying to improve her quality of life. She complained of pain in her shoulder radiating down her arm, at times cold and swollen. Flare-up results in restricted range of movement. Mrs Singh states she is trying to utilise a biopsychosocial model to manage her pain but this has been difficult due to the cold weather.”
The difficulty with Mr McEnaney’s submission is the left shoulder injury is accepted by the respondent. In any event, there is nothing in Dr Lam’s report which suggests the applicant suffered any onset of neck symptoms in the immediate aftermath of the 2010 fall.
Dr Lam informed the respondent of the 2010 fall by his request for the left stellate ganglion injection in June 2011. The respondent nonetheless paid for those injections, accepting (as it still does) the treatment related to the shoulder injury at issue, not to any intervening fall.
The GP clinical records after the 2010 fall reveal the applicant complained of increased right leg pain. There was no suggestion in those notes of any cervical spine symptoms worsening in the aftermath of the 2010 fall. Indeed, there is nothing in those records which relates any neck symptoms to that 2010 incident.
The first entry after the 2010 fall referring to neck pain in the GP records is an entry on 7 November 2011, over 12 months later. Whilst acknowledging the mere effluxion of time is not proof of a lack of causal connection, in my opinion if the 2010 fall had caused the onset of the applicant’s neck symptoms, one would have expected mention of it in the various clinical materials.
Moreover, as Mr Schipp noted, there were references to neck symptoms as early as February 2009, and in 2010 before the October fall. Those entries are in my view significant pieces of evidence in refuting the respondent’s claim of the 2010 fall acting as an intervening event to break the causal chain between the accepted 2003 injury and the onset of any condition in the applicant’s neck.
Additionally, even had the 2010 fall resulted in the worsening of cervical spine symptoms, in my view, such worsening could still be said to have been caused by the 2003 injury, in that although the 2010 fall was a subsequent accident which would have occurred had the applicant been in normal health, the damage she sustained as a result of it to her left shoulder in particular, was greater because of an aggravation to the earlier injury. As such, the additional damage resulting from that aggravated injury, including consequential pain in the applicant’s neck, would be treated as having been caused by the 2003 injury: see State Government Insurance Commission v Oakley (1990) 10 MVR 570 (Oakley).
On balance, given there was evidence of neck pain before the 2010 fall, I am not satisfied the October 2010 fall was the cause of the onset of the applicant’s neck pain, or that it relevantly worsened it. Rather, there were some neck symptoms suffered by the applicant from approximately 2009, but the preponderance of the medical evidence clearly supports a finding those symptoms worsened from 2017 when the applicant was required to wear a sling for her accepted left shoulder injury.
Taking a common sense appraisal of the causal chain, I am satisfied on the balance of probabilities the applicant suffered a consequential condition to her cervical spine as a result of wearing a sling to treat her work-related shoulder injury. There is nothing which contradicts the applicant’s evidence that she was in a sling for a prolonged period of time after the left shoulder surgery in 2017, and that after being so treated for “a couple of months”, she began to notice the pain in her neck getting worse. In my view, that complaint of increasing symptoms in the neck is consistent with the wearing of the sling post-surgery causing the consequential condition to the applicant’s neck.
Alternatively, if as Dr Powell has opined, the applicant’s neck symptoms were linked to the onset of a pain syndrome, the evidence overwhelmingly supports a finding that the pain syndrome was caused by the accepted work injury in 2003, which would also ground a finding of consequential condition.

SUMMARY

For the above reasons, I find the applicant suffered a consequential condition to her cervical spine as a result of the injury suffered in the course of her employment with the respondent on 9 October 2003, and the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2023] NSWPIC 102

13 March 2023