Stanford v Channon Refrigeration Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stanford v Channon Refrigeration Pty Ltd [2021] NSWPIC 281
APPLICANT:	Stephen Stanford
RESPONDENT:	Channon Refrigeration Pty Ltd
MEMBER:	9 August 2021
DATE OF DECISION:	Elizabeth Beilby
CATCHWORDS:	WORKERS COMPENSATION- Claim for consequential condition; cervical spine; Kooragang Cement Pty Ltd v Bates and Nguyen v Cosmopolitan Homes considered; Held- burden of proof not discharged; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent in respect of the claim for a consequential condition in the cervical spine.

STATEMENT OF REASONS

BACKGROUND

Mr Stephen Stanford (the applicant) has been employed as a refrigeration mechanic ever since he left school in Year 10.
In 2006 he was employed by Channon Refrigeration Pty Ltd (the respondent) as a refrigeration mechanic on a full-time basis. Essentially his job would require him to attend a client’s premise and perform repairs upon refrigeration devices which would include replacing gas cylinders and other motors.
On 18 December 2017 the applicant was directed to attend the Excelsior Hotel to repair a refrigeration device. Whilst the applicant was preparing to hose down the machine, he was walking with a hose and slipped over and landed on his left shoulder. He observed a sharp pain in his left shoulder but continued to work regardless of his pain and finished the task.
The applicant attended upon his general practitioner, Dr Hakim on that same day who referred him for an x-ray and CT scan of his left shoulder. The x-ray revealed a tear in the supraspinatus tendon as well as bursitis.
Dr Hakim, referred the applicant to see a specialist, Dr Rahme (Orthopaedic Surgeon).
Dr Rahme recommended surgery and on 5 February 2018 the applicant underwent a left shoulder subacromial decompression rotator cuff repair.
The applicant underwent physiotherapy for approximately four sessions and had his left shoulder in a sling for a period of four weeks. He then continued with his physiotherapy for a period of 12 months.
The applicant says[1] that he began observing symptoms in his cervical spine after his sling was removed in March 2018. The applicant says he reported these symptoms to his physiotherapist and to Dr Rahme. The applicant says in his statement that Dr Rahme advised him that the neck pain was understandable due to the nature of the fall.
[1] Statement dated 16 October 2020
The applicant returned to work in September 2018 on light duties.
The parties agree that there is no recorded complaint of symptomatology in the cervical spine before the report of Dr Bodel
The applicant now claims a consequential condition in his cervical spine arising from wearing a sling and guarding.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) does the applicant have a consequential condition in the cervical spine.

Matters not in dispute

There is no dispute that the applicant sustained an injury to his left shoulder.

PROCEDURE BEFORE THE 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.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply to the Application to Resolve a Dispute (Reply), and
(c)    late documents dated 17 June 2021.

Medical Evidence

I will now look at the medical evidence filed in this claim.

Dr Bodel

Dr Bodel has prepared a report dated 16 September 2019.[2] On examination, Dr Bodel observed the applicant had cervical pain and there was reduced range of flexion, extension, rotation in all directions of the neck. There was also asymmetry of neck movement on clinical testing.
[2] Application page 11
Dr Bodel commented that clinically the applicant suffered from some discomfort in the neck though Dr Bodel appreciated that the historical documentation provided made no mention of complaints relating to the cervical spine.
Dr Bodel diagnosed the applicant as having some probable minor disc pathology in the cervical spine that was causally related to the injury to the left shoulder. This was based on his observations of asymmetry of neck movement and guarding.
Dr Bodel prepared a further report also dated 16 September 2019.[3] In that report Dr Bodel was satisfied that the circumstances of the fall would characterise the injury to neck as probably a direct frank injury, although it was not the major complaint at the time of injury and the symptoms in the neck became more apparent over time because of trying to favour the right side to protect the injured left side.
[3] Application page 9. The date of this report appears to be incorrectly dated.
Dr Bodel then goes on to say that the clinical evidence of asymmetry of neck movement justified an impairment rating although this arose as a consequence of the injury to the neck and both shoulders. Therefore, Dr Bodel’s opinion is that the applicant suffered a consequential injury to the cervical spine, that is, in the fall the applicant jarred his neck as well as his left shoulder and over time while favouring the injured left shoulder he has put an undue load on the neck and the right shoulder causing consequential injury to both of those areas.
Dr Bodel has therefore opined that that there is injury due to the dramatic mechanism of the fall and also due to overuse.

Dr Rahme

Dr Rahme is the treating surgeon. His notes and reports have been provided in the Application. Dr Rahme no longer provides medicolegal opinions.
It should be observed that at no time in the clinical notes and reports is there any complaint in respect of the cervical spine. There is however confirmation that the applicant did undergo surgery as described on 5 February 2018, that is the left shoulder subacromial decompression and rotator cuff repair and further that the applicant had his arm in a sling post-surgery.[4]
[4] Application page 34
Dr Rahme in a report dated 21 March 2018[5] observed the applicant had ceased the use of the sling however there is no commentary in respect of cervical spine symptomatology.
[5] Reply page 4
Dr Rahme observes that the applicant had improved sufficiently to return to driving and could return to work performing sedentary or light duties using the arm for simple clerical activities and lifting of no more than half a kilogram.
In a consultation three months after the left shoulder surgery,[6] Dr Rahme comments that the applicant was improving gradually and was better now than prior to surgery with regard to pain and function.
[6] Application page 37
In a further consultation eight months post-surgery,[7] Dr Rahme observed the applicant had a near normal range of motion and strength was improving.
[7] Application page 38
In a consultation 12 months post-surgery,[8] Dr Rahme observed that the applicant was improving with his physiotherapy and strengthening exercises and his function and range of motion had improved significantly. It was observed there was a degree of fatiguability with the left shoulder and above shoulder activities which would improve for a number of months yet.
[8] Application page 39

Physiotherapist’s Report – Brittany Hart

Ms Hart has prepared a report dated 17 March 2020.[9] Ms Hart reports that Mr Stanford injured himself on 18 December 2017 and experienced severe pain and restricted shoulder range of motion.
[9] Late documents page 1
Ms Hart understood that the left shoulder injury was diagnosed as a complete supraspinatus tendon tear with sub-deltoid bursitis and that the applicant was then operated on by
Dr Rahme.
Ms Hart reports that during the course of her treatment in their clinic on 27 February 2018 to 6 February 2019 the applicant did not receive any treatment to the cervical spine specifically. She does report that it is common in her clinical experience, for patients to experience neck pain following a rotator cuff repair due to the time spent immobilised in a sling and muscle atrophy due to immobility. She observes that in her clinic they see a high proportion of patients that report neck pain during the commencement of the strengthening phase of a rotator cuff repair rehabilitation program. This neck pain usually reduces over the course of rehabilitation as strength in the shoulder and scapula and stabilising muscles improve.
Ms Hart reports that the applicant ceased treatment on 6 February 2019 due to aggravation of an unrelated condition. At the last session the applicant was able to lift 10kg with both hands and 3kg with the left hand below shoulder level. In general, she comments that the applicant’s rehabilitation would have been considered to be behind normal expectation for 12 months post-operatively for a rotator cuff repair but the finding was directly attributed to the inconsistent nature of his treatment in the last few months due to co-existing medical conditions.

Dr Wallace

Dr Wallace has prepared a report[10] dated 25 November 2019. Dr Wallace takes a history in respect of the incident at work and in particular that he had cervical spinal pain intermittently since the fall in December 2017.
[10] Reply page 48
Dr Wallace also understands the applicant had his left arm immobilised in a sling for six weeks following the surgery performed by Dr Rahme and then continued with physiotherapy.
In respect of present complaints Dr Wallace understood the applicant’s cervical spinal symptoms had resolved. The applicant reported to Dr Wallace that had previously noted intermittent mild aching pain in the left paracervical region at C7 radiating to the superior border of the left trapezius muscle on rotating the head only.
Dr Wallace opined that there is no objective medical evidence that the applicant suffered an injury to his cervical spine as a result of the work incident on 18 December 2017.
Dr Wallace does not turn his mind to a consideration of whether the applicant has a consequential condition arising from the left shoulder injury.

IPAR reports

The respondent has requested rehabilitation reports from IPAR that are attached to the Reply. There are four reports the first being dated 28 March 2018[11], the second dated 30 July 2018[12], the third dated 25 September 2018[13], and the final report dated 27 September 2018[14] . The reports appear to be focused on assisting the applicant in returning to work.
[11] Reply page 3
[12] reply page 20
[13] Reply page 24
[14] reply page 36
The first report is of some significance as it is dated 28 March 2018. This is at a time that the applicant says that he experienced the onset of cervical spine symptomatology upon ceasing the use of his sling.
I have observed that the report does appear to be prepared to contain significant detail and at that time it was reported the applicant had engaged in eight physiotherapy sessions to date[15].
[15] reply page 7
The report indicates the applicant was experiencing pain in the left shoulder which radiated down to his elbow joint, through the forearm. There is no indication that the applicant complained of any symptomatology in the cervical spine in the report though the report appears to be quite descriptive of its description in pain experienced.
The further three reports prepared by IPAR contain no reference to any pain or symptomatology in the cervical spine.
Whilst the applicant provides no evidence that he complained to the author of the IPAR reports of symptomatology in the cervical spine, I observe that it is surprising given the detail contained in the reports, that there is no evidence of complaint if the applicant experienced it.

Submissions and consideration

The applicants claim is that of a consequential condition. Kirby P (as his Honour then was) in KooragangCement Pty Ltd v Bates[16] discussed this concept in relation to the chain of causation of injury and whether the condition “results from” the work injury.
[16] Kooragang Cement v Bates (1994) 35 NSWLR 456
His Honour commented:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted ... As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.”[17]
[17] Kooragang 463-464
In order for the applicant to be successful in these types of claims, they must satisfy the Member on the balance of probabilities that the symptoms complained of in the cervical spine arose from the accepted shoulder injury.
The primary submission made on behalf of the applicant was that on the basis of a common sense approach to causation, the Commission should find that the applicant sustained a consequential injury to the cervical spine. That is, there has been an onset of symptoms which relate to the initial accepted shoulder injury.
The applicant conceded through his Counsel, Mr Carney, that there is no record of any complaint in respect of cervical pain to either Dr Rahme or Dr Hakim in the clinical notes that have been produced in the Application. It was pointed out that the only evidence in respect of cervical pain is the history that was provided to Dr Bodel, Dr Wallace and referred to in the report from the physiotherapist Ms Hart.
The applicant refers to the opinion of Dr Wallace in which he takes a history of very specific cervical pain in the neck. They say that this is consistent with the applicant’s history that he has had ongoing neck pain[18] following the incident. This however was not the case pursued at Arbitration. The only case pursued was that of a consequential condition. The history provided of to Dr Wallace of intermittent pain following the fall does not assist the applicant’s case as if anything it gives support to an injury simplicitor.
[18] That is mild aching in the paracervical region at C& radiating to the superior border of the left trapezius.
The applicant relies upon his statement which provided that he has experienced symptomatology following the removal of his sling after surgery. It should be observed that the applicant provides no evidence in his statement of guarding, overuse, or protecting his injured shoulder. The only reference to pain is on removal of the sling. The only evidence in the statement regarding ongoing pain in on driving[19].
[19] Paragraph 22(e)
The applicant then relies upon the opinion of Dr Bodel in relation to causation.
Dr Bodel’s opinion appears to be that the applicant has suffered an injury simpliciter and also that there is a consequential condition. The consequential condition is said to arise because of favouring the right side to protect the injured left side[20].
[20] Application page 9
The respondent also says there is significant doubt about the assumptions that Dr Bodel relies upon to prepare his report. That is there is no evidence from the applicant about protecting his injured side.
The Court of Appeal authorities of Hawchar,[21] Makita[22] and Edmonds[23] are relevant to this submission. Those authorities establish that, although the rules of evidence do not apply in the Commission, for the evidence to be accepted, it should be logical and probative, relevant to the fact in issue, and not based on speculation or unsubstantiated assumptions. The basis of an expert’s opinion must be explained. It is a question of weight, and not admissibility of the medical expert’s opinion that does not conform with that standard.
[21] Dasreef v Hawcher [2010] NSWCA 154
[22] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
[23] South Western Sydney Area Health Service [2007] NSWCA 16
The respondent points out that Dr Bodel’s opinion that the consequential injury has occurred due to favouring of the left side does not have the evidentiary basis to be formulated and relied upon. That is, there is no evidence from the applicant himself in relation to favouring one side over the other. The only evidence is that he noticed symptoms in his neck when the sling was removed. I agree with this submission.
The opinion of Dr Bodel therefore has no substantive weight as it relies upon unsubstantiated assumptions, that is there is no evidence from the applicant about favouring or protecting his injured shoulder.
Dr Bodel’s opinion in that report as to a consequential condition is also one that is different to that proffered by Ms Hart in her report. Ms Hart’s report is one that has been prepared on the basis of being a treating physiotherapist. After considering her report it seems that all she can say is that in some circumstances people will complain of neck pain following the treatment the applicant has undergone in respect of the left shoulder after being immobilised.
The respondent also refers to some IPAR reports which were requested by the Insurer.[24] There is no reference whatsoever in relation to pain in the neck in those reports. At that time of preparing the first report the applicant was undergoing physiotherapy once a week and had had eight sessions to date. This is at a time the applicant says he observed the onset of cervical pain, yet there is no complaint recorded in the report.
[24] Reply page 5
The respondent says that in that first IPAR report, there is fairly exhaustive and considered consideration of what injuries the applicant had and his symptomatology at that stage. This is because the report has taken into account other body parts as it is considering the capacity of the applicant to return to meaningful employment. After considering the reports I agree with that submission however I am cognisant that the purpose of that report was in relation to assisting the applicant in returning to work.
I am aware of the caution [25]that needs to be applied when considering that medical records created by busy practitioners would equate to the sort of detail, as to for example how an injury happened, that would be obtained by a legal practitioner preparing a client’s case. All that can be said here, is that there is no history provided by the applicant and recorded by his treating medical providers as to complaint of and onset of cervical pain to any of his treating doctors or treatment providers. Whilst this is not fatal to the applicant’s case, it is quite surprising.
[25] Mason v Demasi

Conclusion

In conclusion it appears to me that the major support offered for the applicant’s case is from Dr Bodel. The difficulty with Dr Bodel is that his report is predicated on unsupported assumptions as previously outlined. I therefore can only give his report little weight and find it unpersuasive. It does not refer to the applicant’s onset of pain being after the sling was taken off. Further it relies upon assumptions of favouring or protecting the applicants injured shoulder, evidence that is not provided from the applicant.
Then there is the report of Ms Hart which has been prepared on the basis of her observations of patients that attend her clinic, however there is no historical support that the applicant did indeed experience neck pain as described. The report does not provide me with any particular assistance as to the applicant’s circumstances in particular.

The applicant’s probably strongest argument is that there is a correlation between onset of symptoms with the removal of the sling. As a scientific proposition the applicant needs the evidence to support such a finding and then needs to discharge the proof in relation to it. If
Dr Bodel had provided support for this as a causal mechanism, then the outcome may have been different in this dispute.
Dr Wallace’s opinion also has a different history and that is that the applicant says that he has had cervical pain intermittently since his fall. This is supportive of, if anything, an injury simpliciter as opposed to a consequential condition. This is inconsistent with the applicant’s statement and case put before me.
I am reminded of what Deputy President Roche said in Moon v Conmah[26], that is it was unnecessary to establish that the disputed condition was an ‘injury’ within the meaning of
[26] Moon v Conmah Pty Ltd (2009) NSWWCPD 132
[27] Nguyen v Cosmopolitan Homes [2008] NSWCA 246
s 4 of the 1987 Act. Rather what was required is a “common sense evaluation of the causal chain” (Kooragong). A Member must be actually persuaded as to the occurrence or existence of a face before it can be found, referred to and the need for a fact-finder to be actually persuaded of the occurrence or existence of a fact before it can be found [27].
After considering all these arguments, it seems to my mind there is insufficient basis for me to find that there is a consequential condition to the cervical spine. That is, I am not persuaded that the applicant has a consequential condition in the cervical spine as alleged.
For reasons outlined in this decision I am not persuaded to the requisite standard that the applicant suffered a consequential condition in the cervical spine as claimed.

SUMMARY

The applicant has not discharged the burden of proof in relation to a finding that there he has suffered a consequential condition in the cervical spine.
There should therefore be an Award for the respondent in respect of the claim for a consequential condition in the cervical spine.

[2021] NSWPIC 281

9 August 2021