Stojanovski v Coles Supermarkets Australia Pty Ltd
[2021] NSWPIC 315
•31 August 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Stojanovski v Coles Supermarkets Australia Pty Ltd [2021] NSWPIC 315 |
| APPLICANT: | Suzana Stojanovski |
| RESPONDENT: | Coles Supermarkets Australia Pty Ltd |
| Member: | Michael Wright |
| DATE OF DECISION: | 31 August 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Permanent impairment claim for accepted right shoulder injury and disputed consequential left shoulder condition; Moon v Conmah and Kooragang v Bates considered; Held - found left shoulder condition was consequential to right shoulder injury. |
| determinations made: | 1. The Commission finds that the applicant suffered a left shoulder condition consequential to the injury to her right shoulder on 1 August 2015. 2. The Commission notes that injury to the right upper limb and cervical spine on 1 August 2015 are not in dispute. 3. The Commission notes that the parties agree that there is evidence of Complex Regional Pain Syndrome. 4. Liberty to the parties to apply in respect of a referral to a Medical Assessor having regard to the final paragraph of the attached reasons. |
STATEMENT OF REASONS
BACKGROUND
This is an application by Ms Suzana Stojanovski (the applicant) for a claim for permanent impairment compensation arising from injury on 1 August 2015 in the course of her employment with Coles Supermarkets Australia Pty Ltd (the respondent) in respect of the applicant’s right upper extremity, cervical spine, left upper extremity and Complex Regional Pain Syndrome. At a telephone conference in this matter it was indicated by the applicant that the claim for the left shoulder condition was a claim for a consequential condition and was indicated by the respondent that this was the only matter in dispute.
A section 78 notice dated 29 December 2017 disputed liability for the cervical spine injury sustained on 1 August 2015.
A letter of claim by the applicant’s solicitors dated 19 October 2020 stated that the applicant sustained injuries to her cervical spine, right upper extremity, left upper extremity and complex regional pain syndrome as a result of the repetitive nature and conditions of her employment from about 2001 until 15 November 2019.
A letter of offer by the respondent to the applicant’s lawyers dated 11 February 2021 offered to settle the applicant’s claim in respect of impairment for the right shoulder and the cervical spine, together with an award for the respondent in relation to the alleged injury to the left shoulder.
A section 78 notice dated 18 June 2021 disputed liability for the left shoulder injury.
PROCEDURE BEFORE THE COMMISSION
At the conciliation and arbitration hearing of this matter on 15 July 2021, the applicant was represented by Mr Moffat of counsel and the respondent by Mr Baker of counsel.
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.
It was indicated that the only issue in dispute was injury to, or consequential condition of, the left shoulder.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents (ARD);
(b) Reply and attached documents, and
(c) Application to admit late documents dated 12 July 2021 and attached documents.
Oral Evidence
There was no application to give oral evidence and there was no application to cross-examine the applicant.
Applicant’s statement
11.The applicant provided a statement dated 3 August 2020.
12.The applicant gave details of the initial injury to her right elbow which was reported on
1 August 2015. She also gave details of her right shoulder symptoms and treatment which followed. She also gave details of neck symptoms following the initial right elbow symptoms.13.The applicant relevantly stated that in early 2016 she started to notice problems in her left arm which were similar to her right arm. She stated that she realised that she was doing virtually everything with her left arm to compensate with restrictions in the right. She said that she told Dr Jasim, her GP, about this.
14.The applicant also said that after surgery in August 2016 she worked four days a week for about 16 hours per week and at that time she worked on the self-serve checkout. She said that she would replace the bags with her left hand when they were available. The applicant also described working with her left hand wiping down the EFTPOS machine and scanners and picking up and loading baskets and doing ticketing at the front of the store.
15.The applicant also said that she has found that she relies on her left arm a lot more at home in doing things such as hanging out the clothes, ironing and sweeping with her left hand. She stated that she does a lot of her cooking with the left hand and does a little bit of gardening using her left hand. The applicant stated that she finds it very difficult with the laundry and she has been using her left arm a lot and “that is probably the reason why it is starting to hurt more”.
16.It is necessary to refer to the medical evidence in some detail, in light of the submissions.
Associate Professor Haber
17.A/Prof Haber, orthopaedic surgeon, provided a number of treatment reports to the insurer including reports dated 3 March 2016, 5 May 2016, 29 August 2016, 27 September 2016,
8 November 2016, 7 February 2017 and 16 May 2017.
18.A/Prof Haber noted in his initial treatment report to the insurer dated 3 March 2016 that the applicant had been referred for assessment of severe right shoulder girdle pain. He recorded a seven month history of pain across the shoulder girdle and down her right arm. He noted that the diffuse shoulder girdle pain was also associated with altered sensation to the right hand. He recorded that an MRI confirmed a small full thickness rotator cuff tear.
19.A/Prof Haber made a provisional diagnosis of right shoulder rotator cuff tear and possible neck origin of shoulder girdle pain. He recommended a rotator cuff repair due to the presence of a full thickness tear and persistent symptoms but the situation with her cervical spine needed to be assessed prior to further management of her shoulder problem.
20.In his report to the insurer dated 5 May 2016, approval was requested for the recommended surgery, among other matters A/Prof Haber noted that for the first six weeks after surgery the applicant would remain in a sling most of the time, which may be removed for very conservative range of motion exercises.
21.In his operation report to the insurer dated 29 August 2016, A/Prof Haber detailed the right shoulder arthroscopic rotator cuff repair on 24 August 2016. The treatment noted was subacromial debridement/bursectomy.
22.In a progress treatment report to the insurer dated 27 September 2016, A/Prof Haber noted no evidence of a re-tear.
23.In a progress treatment report to the insurer dated 8 November 2016, A/Prof Haber noted that the applicant appeared to be making an uneventful recovery. He noted the ongoing management and considered that full recovery from surgery may take 12 months.
24.In a treatment report to the insurer dated 7 February 2017, A/Prof Haber noted that it had been six months since the rotator cuff repair on the applicant continued to have significant pain and stiffness in the shoulder. He stated that he recommended a consultation with an occupational physician, Dr Ian Tague, due to the ongoing pain and stiffness and related rehabilitation issues.
25.In a treatment report dated 16 May 2017, A/Prof Haber reviewed a right shoulder ultrasound and noted that there was no evidence of a re-tear of the supraspinatus tendon.
26.There was no reference in the above treating reports by A/Prof Haber to the applicant’s left shoulder, nor to her cervical spine, other than the initial report noted above.
27.In my view, the reports of A/Prof Haber were focused upon assessment of the applicant’s right shoulder for which she was referred, surgical treatment and postsurgical recovery.
28.Also in my view, a significant feature of A/Prof Haber’s treatment reports above was the history recorded of the severity of the applicant’s right shoulder pain. A/Prof Haber also noted in February 2017 that the applicant remained with continuing significant pain and stiffness in her right shoulder. His subsequent reports did not refer to the status of the pain and stiffness in the right shoulder, whether resolved or not.
Dr Al Khawaja
29.Dr Al Khawaja, neurosurgeon, provided a treating report to Dr Jasim dated 4 April 2016.
30.Dr Al Khawaja noted that the applicant presented with right arm pain and swelling and right shoulder pain. He recorded that since last year, she started having severe right shoulder pain going to the arm with swelling of the arm, neck pain and pins and needles in the right arm. Symptoms were recorded as being around the C6 and C7 distributions and she was reviewed by A/Prof Haber for her shoulder.
31.Dr Al Khawaja thought that the shoulder was giving the applicant most of her problems and offered her blocks to the nerve at right C7 distribution. Dr Al Khawaja recorded that the applicant preferred to wait until the shoulder problem was resolved.
32.Dr Al Khawaja made no mention of the left shoulder.
Dr Day
33.Dr Day, neurosurgeon, provided treating reports dated 27 March 2017 and 14 August 2017.
34.In a treating report to Dr Jasim dated 27 March 2017, Dr Day recorded that the applicant presented for evaluation of focal neck pain in the right paracervical region about the mid cervical spine. He noted that she was recovering from a supraspinatus tendon repair in the right shoulder.
35.Dr Day also noted that the applicant had developed a frozen shoulder on the right and was working hard trying to regain her right shoulder mobility. He also noted that the neck pain is focally tender to palpation. He noted that the cervical MRI scan showed very minimal degenerative change in the cervical spine. He was of the opinion that the pain the applicant was experiencing was more muscular in nature.
36.Dr Day was also of the opinion that the discomfort radiating into the applicant’s right arm was related to recovering from the shoulder surgery and the relative immobility of that arm with the frozen shoulder. He stated that there is no evidence of cervical radicular pain in the right arm. Dr Day requested authorisation for a bone scan with SPECT to evaluate the right cervical spine to account for the neck pain, which if positive would most likely respond to a steroid injection.
37.In his treating report to Dr Jasim dated 14 August 2017, Dr Day recorded ongoing suprascapular pain on the right and pain over the extensor tendon insertion into the lateral epicondyle of the applicant’s right elbow. He noted that she did not have evidence on that occasion of radicular pain.
38.Dr Day noted that the right C6 peri-radicular injection, performed on 20 June 2017, was of no benefit. Dr Day believed that the applicant should continue with her physio-based treatment of her right upper extremity focusing on the shoulder and the extensor tendinopathy on the right. He stated that there was no indication of cervical spine surgery and returned the applicant to the care of Dr Jasim.
39.There was no mention in the above reports of the applicant’s left shoulder.
Associate Professor Jaeger
40.A/Prof Jaeger, neurosurgeon and spinal surgeon, provided a treating report dated 15 December 2017.
41.In his treating report dated 15 December 2017 to Dr Jasim, A/Prof Jaeger recorded a history of the development of right shoulder and arm symptoms in 2015/2016 and the applicant eventually had a rotator cuff repair by A/Prof Haber in August 2016.
42.A/Prof Jaeger noted that the applicant said that her right upper limb symptoms did not improve after the surgery and in contrast had deteriorated. He noted that the applicant had undertaken extensive conservative management with short-term benefit. A/Prof Jaeger noted that physiotherapy and hydrotherapy with Nick Kontopoulos had helped but the applicant continued to be troubled by pain and had only return to work part-time. He noted that the applicant’s description of sharp pain in the right paraspinal, lower cervical/upper thoracic and over the right shoulder with paraesthesia down the arm, was most likely in the C7 dermatomal distribution.
43.A/Prof Jaeger recorded that the applicant’s pain was constant and activity generally aggravated her symptoms and rest helped. He noted that on provocative testing of the shoulder the applicant had very mild pain and his impression on that occasion was there was not a great deal of the shoulder problem involved in pain generation. He noted tenderness over the lateral epicondyle with the degree of lateral epicondylitis but this was not the main troublemaker.
44.A/Prof Jaeger was of the view that it was necessary to work out if the unusual loop of the vertebral artery affected her C7 nerve root and contributed to her symptoms. He noted that given the normal EMG, the applicant needed to proceed with a CT angiogram of the right vertebral artery and a referral was given in this regard. He also recommended a diagnostic right C7 CT guided peri-radicular injection.
45.A/Prof Jaeger stated that should all this be inconclusive then it would be necessary to keep a thoracic outlet syndrome in mind even though the clinical presentation was not typical, for which there would then be a referral to a vascular surgeon for further assessment.
46.There was no mention of the left shoulder in the report of A/Prof Jaeger.
47.In correspondence to A/Prof Jaeger dated 29 December 2017 in response to a request for approval for CT guided right C7 peri-radicular injection treatment, the workers compensation insurer declined further treatment based upon the opinion of Dr Davies, neurosurgeon.
Dr Jasim
48.Dr Jasim is the applicant’s treating GP. Dr Jasim provided his clinical records. These records also included consultations with Mr Nick Kontopoulos, physiotherapist, and Ms Lubica Vracar, psychologist.
49.The first consultation with Dr Jasim recorded in these clinical notes was on 8 December 2015 in which it was recorded “R elbow injury whilst constantly picking up/facing up products… in Wollongong Coles”. The first consultation with Mr Nick Kontopoulos was recorded on 16 December 2015 in respect of “R elbow pain” and noted “Assess… neck… shoulder… wrist…”.
50.In a consultation on 2 February 2016, Dr Jasim among other matters noted that the applicant’s boss wanted her to get fit for one hour of work only for “facing and coding and rest of 3hrs nonphysical job supervising or L arm light work only” but she was not ready for it as yet.
51.In a consultation on 1 November 2017, Dr Jasim noted the applicant “[re-aggravated] her R shoulder neck injury today while doing her duties at work… While picking up the basket with L arm/felt sharp pain tip of her R shoulder… Then she continue working but it gets worse when she could not move her R shoulder or arm at all/lost her strength”. Dr Jasim noted examination findings in respect of the right shoulder and neck, but no findings in respect of the left shoulder other than “power L arm 5/5” and “reflexes and tone ok equil R=L”.
52.In a consultation on 31 August 2018, Dr Jasim recorded:
“cervical radiculopathy C7 room compression… R arm pain compatible with C7 distribution… Has had CT guided peri-radicular injection C7 vertebral artery loop through C7 foramen/failed to make any better.”
53.In a consultation on 4 September 2018, Dr Jasim recorded “R elbow and medial epicondylitis/R shoulder high-grade partial-thickness tear, reflex sympathetic dystrophy post R shoulder surg”.
54.In a consultation on 10 October 2018, Dr Jasim recorded “she had to leave work due to severe numbness swelling R arm hand with [colour] changes and pins and needles sensation… Typical presentation of reflex sympathetic dystrophy symptoms (chronic regional pain syndrome)… She has had CT angiogram that [showed] no significant vertebral arteries pathology in Feb this year”. An urgent referral for pain clinic was recorded.
55.The first consultation with Ms Lubica Vracar, psychologist, appears to have been recorded on 31 October 2018. It was noted that testing results indicated “extremely severe anxiety, depression and stress… Reported chronic pain…”. The history of injury to the right shoulder and surgery was noted.
56.It was also noted in the same consultation that the applicant “reported [limited] range of movement with her right arm and overusing her left arm”.
57.In a consultation on 17 March 2019, Ms Lubica Vracar recorded that testing results indicated extremely severe anxiety, depression and stress. Ms Vracar noted the history of “right shoulder/arm injury” and also noted “[chronic] pain… Not able to perform tasks with her right arm”.
58.In a consultation on 27 March 2019, Ms Lubica Vracar recorded “worried about WC… Pain… Back… Arms… Legs”.
59.In a consultation on 5 April 2019, Ms Lubica Vracar recorded a history of “reported severe pain in her neck, shoulders and right arm being numb… Has to work 4 hours per day standing… Sore legs…”.
60.In a consultation on 29 May 2019, Ms Lubica Vracar recorded a history of “reported feeling tired, pain in her body especially arms, shoulders and legs…”.
61.It should be noted that intercurrent consultations with Dr Jasim and Mr Nick Kontopoulos made no reference to the left shoulder or arm.
62.In a consultation on 2 August 2019, Dr Jasim recorded a history of “L hip/SI pain” and made findings in relation to lumbosacral and sacroiliac tenderness. Dr Jasim also recorded and “Attended care plan” and referred to “multiple medical problems” including arthroscopy and right rotator cuff tear, cervical radiculopathy C7 room compression and right arm pain compatible with C7 distribution. Also noted was the CT guided peri-radicular injection C7 vertebral artery loop which “failed to make any better” and “vertigo; benign positional”. A referral to a chiropractor (Tarek) was arranged as well as two visits for “NK”, which was presumably Mr Nick Kontopoulos, physiotherapist.
63.In a consultation on 3 April 2020, Dr Jasim recorded a history of “recurrent h/o upper back and R arm burning sensation swelling and lack of strength R arm…” Dr Jasim recorded that pain management was discussed and noted that the applicant could not see Dr Bashford as “COVID-19 barrier”.
64.In the same consultation, Dr Jasim also recorded that “she has been feeling very bad pain L elbow and L shoulder… USS L shoulder and elbow requested…” He also noted “H/O few [years] injury… Getting worse lately… Restricted tender ROMs both L shoulder and L elbow”.
65.In a consultation on 16 April 2020, Dr Jasim recorded his review and actions in respect of the ultrasound of the left elbow and left shoulder. Relevantly, in respect of the left shoulder ultrasound, Dr Jasim recorded that “there is mild to moderate tendinosis of the supraspinatus tendon. There is a moderate sized partial-thickness articular surface tear of the anterior supraspinatus tendon”. In respect of actions taken, Dr Jasim recorded an imaging request for “imaging guided cortisone injections” for the left elbow and left shoulder. In respect of the left shoulder, the action was for “imaging guided cortisone [injection] L supraspinatus tendon…”.
66.In a consultation on 22 April 2020, Dr Jasim again noted a review of the ultrasound is of the left elbow and left shoulder in the same terms as was recorded on 16 April 2020.
67.At this point, I note the repetition of clinical treatment notes in identical or similar terms. This was the subject of submissions by the applicant, which will be referred to below. This is not a criticism of the treatment providers, who make notes in a busy treatment practice. Rather, it demonstrates the caution with which such notes should be considered in a forensic legal context, as distinct from the clinical context in which the notes were made.
68.In a consultation on 15 June 2020, Dr Jasim noted diagnoses of “[right] shoulder cuff tear”, “cervical radiculopathy C7 radiculopathy”, “CPRS (reflex sympathetic dystrophy)” and “adjustment disorder secondary to chronic pain”.
69.There were no further references to the left shoulder in the notes of Dr Jasim.
70.In relation to Mr Nick Kontopoulos, physiotherapist, as best I can make out, there were clinical notes of multiple attendances in December 2015, January 2016, February 2016 and March 2016; as well as October 2016, November 2016 and December 2016; and also March 2017, August 2017, May 2018, June 2018 and February 2019. There were no references to the left shoulder in the notes of Mr Nick Kontopoulos.
71.I also note there was repetition in the notes of Mr Nick Kontopoulos, which were also the subject of submissions by the applicant.
Dr Dias
72.Dr Dias, consultant occupational physician, provided a medicolegal report to the applicant’s solicitors dated 18 September 2020. Dr Dias assessed the applicant on 18 September 2020.
73.Dr Dias referred to a number of documents that he had reviewed in preparing his report, including the statement of the applicant dated 3 August 2020.
74.Dr Dias recorded a history that in early 2015 the applicant started to be aware of worsening symptoms of pain, stiffness and discomfort affecting her neck, right shoulder and right elbow, more significant in the right elbow region. He recorded that initially the focus of attention was on the applicant’s right elbow as the right elbow was the most painful. He noted that she was diagnosed with right elbow lateral epicondylitis, placed on light duties and referred for physiotherapy. After a period of time off work for about one month in October 2015 for an unrelated health condition, Dr Dias noted that on return to normal duties she developed worsening pain in the right elbow as well as aggravating the pain in her neck and right shoulder.
75.Dr Dias noted the history further treatment in relation to the right elbow and MRI scans of her cervical spine and right shoulder region that were performed in early March 2016. He noted the right shoulder arthroscopic rotator cuff repair procedure on 24 August 2016 by
A/Prof Haber.
76.Dr Dias recorded that the applicant continued to experience pain, stiffness and discomfort affecting her neck, right shoulder and right elbow over the course of the previous five years. He noted that her symptoms affecting her right upper limb have evolved into a pattern consistent with complex regional pain syndrome type 1 over the course of the past three to four years. He noted the continuing symptoms of complex regional pain syndrome as well as the ongoing symptomatology consistent with chronic right elbow lateral/medial epicondylitis.
77.Dr Dias additionally noted that the applicant from around mid 2016 onwards “began to experience symptoms of pain and stiffness affecting her left shoulder” due to overcompensation for the right shoulder condition. He recorded that she has continued to experience ongoing left shoulder pain, stiffness and discomfort for the past four years “as a consequential injury to her compensable physical injuries”.
78.Dr Dias recorded that the applicant’s “compensable injuries have had a significant impact on her mental health over the course of the past five years” and that “she continues to suffer with symptoms of depression and anxiety”. He noted that the applicant sees a treating psychologist on a weekly basis but is not under the care of the treating psychiatrist and takes antidepressant medication on a nightly basis for management of her symptoms of depression and anxiety.
79.Dr Dias recorded that in respect of current symptoms there were continuing symptoms of pain, stiffness and discomfort affecting the applicant’s neck, right and left shoulders and right elbow on a daily basis. He noted that the applicant stated that she can walk for up to 20 minutes before getting worsening pain in her neck and right and left shoulder girdles. He noted a history that the applicant is able to tolerate sitting for up to one hour before having to stand and stretch her neck and right and left shoulders.
80.In relation to present activities, Dr Dias noted that the applicant reported that she was independent with respect to activities of self-care but struggles to maintain her hair due to her conditions affecting her right and left shoulders. He noted that the applicant performs light cooking duties but avoids the lifting of heavy pots and pans and is able to perform light cleaning duties but avoids performing cleaning tasks involving repetitive manual handling or pulling, pushing or tight gripping with either her right or left hand. Dr Dias also noted other restrictions on activities of daily living.
81.In relation to current treatment, Dr Dias noted that the applicant currently takes Lyrica
150 mg on a nightly basis for management of chronic neuropathic pain, and also the combination anti-inflammatory/analgesic medication Nurofen plus, two tablets for three to four times per week for management of symptomatology affecting the neck, right upper extremity and left shoulder. Dr Dias also noted that the applicant takes the antidepressant medication mirtazapine 50 mg on a nightly basis for management of her symptoms of depression. He also noted that the applicant currently followed up with her treating physiotherapist on a fortnightly basis and also sees the treating chiropractor on a fortnightly basis for management of her neck condition. He also noted that the applicant sees a treating psychologist on a weekly basis presently for management of symptoms of depression and anxiety. He noted that she was not presently under the care of the treating medical specialist with respect to her work-related injuries and continues to follow-up with her treating GP,
Dr Jasim, once every two to three weeks for management of her compensable physical injuries.
82.On examination, Dr Dias relevantly noted with respect to neurological examination of the upper limbs that global sensory findings all correlate with the diagnosis of complex regional pain syndrome affecting the right upper limb but there was no objective clinical evidence of cervical radiculopathy or objective peripheral nerve deficits in respect of the right upper limb or left upper limb.
83.On musculoskeletal examination of the upper limbs, Dr Dias relevantly noted that the applicant’s left shoulder was normal to inspection and was tender to palpation over the anterior aspect of the left glenohumeral joint. He noted that the applicant was able to perform abduction of her left shoulder to 120°, flexion to 140° and internal rotation to 60° before being limited by pain and discomfort in her left shoulder region. Dr Dias noted that the applicant otherwise had a full range of movement of her left shoulder in other planes.
84.Dr Dias was of the opinion that the applicant relevantly also developed a consequential left shoulder condition due to compensatory overuse of her right upper limb injuries over the course of the past five years. He was of the opinion that:
“at present, she suffers from a chronic left shoulder impingement syndrome secondary to likely rotator cuff pathology. This condition first manifested in around mid 2016 due to prolonged compensatory overuse.”
Dr Davies
85.Dr Davies, neurosurgeon, provided two medicolegal reports to the insurer dated 21 November 2017 and 18 December 2020. These reports were attached to the ARD. The parties agreed that submissions in relation to these reports would be restricted to matters of history and examination and not opinion.
86.In his report dated 21 November 2017, Dr Davies recorded a history of gradual onset of pain around the right elbow whilst she was working on 1 August 2015. Dr Davies noted that the applicant reported the problem and was taken to see the company doctor and was diagnosed with epicondylitis. He noted that the applicant had physiotherapy treatment but she said it made the pain worse and she noticed the onset of intermittent swelling in the right upper limb. He noted that the applicant began to see her usual GP.
87.Dr Davies also noted that the applicant reported the onset of pain around the shoulder that came on gradually following the onset of the applicant’s elbow pain. He noted neck pain developed at a later stage. Dr Davies noted the right shoulder treatment including surgery in August 2016, complicated by the development of post-operative capsulitis leading to a frozen shoulder. He also noted ongoing swelling and numbness affecting the right upper limb after the shoulder surgery and an improvement in the range of movement at the right shoulder over time following physiotherapy and hydrotherapy.
88.Dr Davies also noted that the applicant reported pain in the right lower into the scapular region and under the lower right scapular which developed over time and which did not settle following a lot of physiotherapy directed at that problem. He noted that the applicant reported a pulling pain in the neck and right shoulder since the shoulder surgery.
89.Dr Davies also noted that although there had been improvement in the range of movement at the right shoulder, there had been no improvement in the pain.
90.Dr Davies also noted the history of investigation and treatment in relation to the applicant’s neck.
91.Dr Davies reported that currently the applicant reported pain across the top of the right shoulder and pain in the lower into scapular region to the right of midline and beneath the scapula. There was still some pain in the right elbow, Dr Davies noted.
92.Dr Davies recorded that the applicant reported intermittent swelling and numbness in the right upper limb and she said the arm goes dead at times.
93.Dr Davies also noted that the applicant said that she gets numbness in the ulnar three fingers of the left hand when she sleeps.
94.In respect of current treatment, Dr Davies noted that the applicant took Lyrica 150 mg at night and uses something else at night for her pain but she could not recall the name.
Dr Davies also noted that the applicant takes Nurofen every day.
95.Dr Davies noted that following the surgery the applicant returned to work on suitable duties but was working at that time only in the self-serve checkout area, four hours per day on four days of the week.
96.On examination, Dr Davies noted tenderness in the right trapezius muscle and a full range of cervical spine movement. He also noted an equal circumference of the arms and forearms and tone and power in the upper limbs were normal. Dr Davies also noted that the supinator reflex was absent in both upper limbs and the applicant reported impaired sharp sensation in all the fingers of the left hand and over the right arm and forearm but not in the right hand.
97.Dr Davies also noted some tenderness in the right elbow area but a full range of movement at both elbows and no signs of complex regional pain syndrome in the right upper limb.
Dr Davies also recorded a restricted range of movement at the right shoulder. He recorded movement of both shoulders in tabulated form as follows:
98.Dr Davies made no comment in relation to the range of movement recorded with respect to the left shoulder.
99.Dr Davies also reviewed radiological investigations, including an MRI of the right shoulder and cervical spine dated 3 November 2017. He noted that “the shoulder scans fall outside my area of expertise”. He provided his comments in relation to the cervical spine scans and noted a prominent loop of the vertebral artery which might be irritating the right C7 nerve root.
100.In his report dated 18 December 2020, Dr Davies noted that he re-examined the applicant on 14 December 2020.
101.Dr Davies recorded that the applicant told him that her condition had not changed since he last saw her. He noted that she continued to be troubled by pain in the neck, right shoulder and around the right elbow. Dr Davies also noted that the applicant said that her right arm changes colour and swells intermittently and she gets pain down the dorsal aspect of the forearm at times.
102.Dr Davies recorded that the applicant had continued working suitable duties until
1 November 2019, when her employer informed her that there were no further suitable duties at that stage and she was put off work.
103.Dr Davies also recorded that the applicant told him that she became quite depressed after being put off work and has been seeing a psychologist regularly since then. Dr Davies noted that the applicant had been referred to Dr Bashford (Pain and Rehabilitation Physician) but was only able to have a telephone consultation with him in April 2020 because of Covid restrictions. He noted that the applicant had a further appointment with Dr Bashford the next day in person.
104.Dr Davies noted that the applicant was having physiotherapy treatment every two to three weeks and also chiropractic treatment and acupuncture but these treatments provided only short-term relief of her pain in the neck and over the back of her head.
105.Dr Davies also noted that the applicant has had her shoulder strapped at times by the physiotherapist and she said the shoulder pain improved when her shoulder was not so dropped.
106.Dr Davies recorded that the applicant is currently taking an ibuprofen/codeine mix three to four times daily and she takes 150 mg pregabalin at night and 15 mg mirtazapine at night, which she had been taking for some months to improve sleep.
107.Dr Davies also recorded that:
“Mrs Stojanovski reports development of pain and restricted movement around the left shoulder as a secondary consequence of her right shoulder and upper limb problems. An opinion should be obtained from an orthopaedic specialist as to whether this is a reasonable consequence of the original injury.”
108.In relation to social activities, Dr Davies noted that the applicant needs assistance to do up zippers or buttons on the back of clothing but is otherwise independent in personal care activities. He noted that the applicant found it difficult to do any mopping, vacuuming or make the bed and her family assist with those things and they also help with food preparation. Dr Davies recorded that the applicant reported improvement in her sleep since she commenced mirtazapine but it makes her feel nauseous.
109.On examination, Dr Davies noted that the applicant avoided using her right upper limb much. He noted tenderness and muscle spasm in the cervical spine and also that the right shoulder had dropped with tenderness over the right scapular region. He noted normal tone in the upper limbs and pain limited strength testing in the right upper limb which was probably normal. He also noted that upper limb reflexes were generally reduced and he could not obtain the supinator reflex in either limb.
110. He also noted tenderness at the right elbow but a full range of elbow movement.
111.Dr Davies also noted restricted movement at the shoulder joints. He provided in tabular form his findings of shoulder movement for both the right and left shoulders as follows:
Dr Kafetaris
112.Dr Kafetaris, corporate medical consultant and injury management consultant, provided an injury management consultant assessment report to the insurer dated 13 March 2019.
113.Dr Kafetaris noted a history of the development of gradual onset of pain in the applicant’s right elbow initially attributed to the nature and conditions of her work.
114.In respect of the applicant’s current status at that time, Dr Kafetaris noted that the applicant complained of constant pain in the “left” upper limb and cervical spine. I accept the respondent’s submission that this was a typographical error in the reference to the “left” should have been “right”, as all other references in that report were to the right upper limb.
115.Dr Kafetaris noted that relations with her employer were described as positive and there were no solicitors involved in her case. He also noted medication of Lyrica two tablets at night and ibuprofen to manage her symptoms. Dr Kafetaris noted that the applicant is performing lighter home duties such as cooking meals but avoids cleaning, does shopping on an occasional basis and drives an automatic vehicle.
116.On examination of the applicant’s right shoulder, Dr Kafetaris recorded “abduction 80° (normal 180°); flexion 80° (normal 180°); extension 30° (normal 50°); internal rotation 50° (normal 90°) and external rotation 50° (normal 90°)”.
117.Dr Kafetaris also noted that:
“Given her chronic pain a yellow flag component is not surprising. While this is present the worker did not present with evidence of substantial abnormal illness behaviour and no major inconsistencies during the physical examination.”
118.There was no reference to the applicant’s left shoulder in the report of Dr Kafetaris.
Dr Rimmer
119.Dr Rimmer, orthopaedic surgeon, provided a medicolegal report to the respondent dated
15 July 2020. This report was relied upon by the respondent in its Reply.
120.Dr Rimmer recorded a history of injury on 1 August 2015 and noted that:
“the details of which she alleges as a result of pulling some cages at work she injured the following anatomic sites:
1.cervical spine.
2.Right shoulder.
3.Right elbow.”
121.The history following the injury by Dr Rimmer recorded as 1 August 2015 was as follows:
“She ultimately sought medical attention through her General Practitioner. She was referred to Dr Haber (Shoulder Surgeon) and underwent a right shoulder arthroscopic repair of the rotator cuff on 24 August 2016. The right upper limb was in a broad arm sling for 6 weeks post-operatively. She then had physiotherapy. When asked specifically the outcome of the surgery Ms Stojanovski stated the following: ‘I wish I hadn’t done it’. She ultimately returned to work in November 2016 in a part time capacity performing suitable duties. Her employment at Coles was terminated in October 2019 because she stated the following: ‘I wasn’t getting any better.’ She remains off work.”
122.In respect of current treatment, Dr Rimmer noted that the applicant attends self-funded physiotherapy and acupuncture one session a month and she had a cortisone injection to the right shoulder both pre-and post surgery and a cortisone injection to the right elbow. He noted that “she takes Lyrica and codeine”.
123.In relation to current symptoms, Dr Rimmer relevantly noted that the applicant described constant pain that was global in position and there is an associated decreased range of motion.
124.On examination, Dr Rimmer noted that the applicant claimed some discomfort on the right side of the neck with movement.
125.In relation to the right shoulder, Dr Rimmer noted that it was symmetrical and in position with no evidence of periscapular muscle wasting. He noted that it was non-tender to firm palpation throughout. Dr Rimmer also noted:
“She had the following active range of motion:
• Flexion: 100°
• Extension: 30°
• Abduction: 90°
• Adduction: 40°
• External rotation: 80°
• Internal rotation: 60°All of which she claims cause pain.”
126.Dr Rimmer noted that in relation to the right upper limb tone, power, sensation and reflexes were all present and symmetrical.
127.The examination findings were described by Dr Rimmer as a normal examination for the cervical spine and a normal examination for the right elbow and global restricted range of motion for the right shoulder.
128.The opinion of Dr Rimmer as to diagnosis was a normal examination with regards to the right elbow and cervical spine and “she is 3 ½ years post right rotator cuff repair”.
129.In response to a question as to whether the diagnosis was consistent with the workers subjective presentation of complaints, symptoms and injury history, Dr Rimmer responded by stating that “given the trivial nature of the mechanism of injury I do not believe it is consistent with the workers subjective presentation of complaints”.
130.There was no reference to the applicant’s left shoulder in the report of Dr Rimmer.
Other documents and medical certificates
131.The applicant completed a “Western Ontario Rotator Cuff Index” and a “Shoulder Questionnaire”, which were attached to the preoperative consent form that she signed for the rotator cuff repair/subacromial decompression dated 23 August 2016. The applicant described her shoulder as having “extreme pain” and extreme constant pain, extreme weakness and extreme stiffness. She also described the difficulty experienced in daily activities about the house or yard as being “extreme difficulty”.
132.An application to admit late documents lodged by the respondent contained 351 pages of medical certificates. This, it was submitted, was evidence that in not one of those medical certificates was there a reference to the left shoulder.
FINDINGS AND REASONS
133.In summary, the respondent submitted that, contrary to the applicant’s statement that she had left shoulder problems from early 2016 due to compensating for the restrictions in her right shoulder, there was no credible contemporaneous medical evidence of left shoulder symptoms, notwithstanding some references in the clinical records in 2018, 2019 and 2020.
134.Initially in submissions the respondent indicated that the issue it disputed was whether or not the applicant sustained an injury either directly or consequentially to her left shoulder as a result of the duties that she performed up until as pleaded on 15 November 2019. Following the applicant’s submissions that this was a claim for a consequential left shoulder condition and that the applicant need only prove that she sustained symptoms and restrictions in her left shoulder as a result of the accepted injury that she sustained at work to the right shoulder and neck, the respondent noted that the case had devolved to a consequential injury case but that the medical records demonstrated there was no contemporaneous material which would support the proposition that there were left shoulder symptoms commencing in early 2016 particularly in view of the fact that Dr Dias had relied on this history as a factual basis to come to his conclusion.
135.The respondent also questioned as to precisely what this prolonged compensatory overuse was and whether the activities on suitable duties were such as to create an overuse of the left shoulder. The respondent also noted that the applicant’s statement referred to certain household activities and also questioned the extent of those activities in relation to overuse. However, the task is to determine whether the pain and restrictions of the applicant’s left shoulder resulted from the accepted injury to her right shoulder. It is necessary to take a common sense approach to the chain of causation.
136.The respondent submitted that the history recorded in the medical records as noted above was inconsistent with the contents of the applicant’s statement. The applicant’s statement was created in August 2020, a period of more than four years after the onset of left shoulder symptoms that were said to have happened in 2016 and a period of almost two years after the consultation with Ms Lubica Vracar. In the period since 2015, the applicant has undergone extensive treatment for her right elbow and right shoulder, including cortisone injections, surgery in August 2016 to the right shoulder, extensive physiotherapy and hydrotherapy as well as pain management consultations. In respect of her neck, the applicant has also undergone a number of consultations and investigations with neurosurgeons. The applicant also gave evidence of severe pain in her right shoulder, which was recorded in the various reports noted above. This history of severe right shoulder pain was not challenged by the respondent. Dr Rimmer thought that the subjective presentation of complaints was not consistent with what he regarded as the trivial nature of the mechanism of injury to the right shoulder.
137.In my view, the contemporaneous medical records are broadly consistent with the applicant’s statement as to the onset of left shoulder symptoms. The applicant stated that it was in early 2016 that she started to notice problems in her left arm “which are similar to my right”. She continued in her statement that she realised that she was doing virtually everything with her left arm to compensate with the restrictions in the right. She said that following the surgery in August 2016 she worked four days per week for about 16 hours per week until there were no more suitable duties for her in November 2019. She stated that she used her left hand and arm for work activities and she also used her left arm for home activities such as doing the laundry. Although there was some ambiguity in comparing her left arm to her right arm, in my view this history of starting to notice the symptoms in the left arm in early 2016 with overuse was consistent with increased left shoulder symptoms in 2018 and 2019, as recorded by
Ms Lubica Vracar, and the seeking of treatment by Dr Jasim in April 2020, in the context of the recorded severe right shoulder pain in 2016 and continuing after the surgery in August 2016 and the ensuing treatment for the right shoulder and investigations of her neck.138.The respondent submitted that the history recorded by the psychologist, Ms Lubica Vracar, on 31 October 2018 should not be accepted as a history of left shoulder symptoms. It was submitted that the history was recorded in the context of florid psychological symptoms which were deteriorating into depression over time.
139.I do not accept this submission. In my view, the notes of Ms Lubica Vracar are evidence of the facts recorded in those notes[1]. In particular, those notes indicate the following history recorded by Ms Lubica Vracar:
[1] Paper Coaters Pty Ltd v Jessop [2009] NSWCA 1; R v Welsh (1996) 90 A Crim R 364
(a) as at 31 October 2018 the applicant was working four hours per day for four days per week and reported limited range of movement with her right arm and overusing her left arm;
(b) as at 17 March 2019 the applicant was working on suitable duties, felt chronic pain in relation to her right shoulder/arm injury, and was not able to perform tasks with her right arm;
(c) as at 27 March 2019 the applicant had pain in her back, arms and legs and was working four hours per day, four days per week;
(d) as at 5 April 2019 the applicant reported severe pain in her neck, shoulders and right arm being numb and had to work four hours per day while standing and had sore legs;
(e) as at 2 May 2019 the applicant reported ongoing pain and inability to use her arm and was working four hours per day for four days per week;
(f) as at 29 May 2019 the applicant reported that she was still working four hours per day, for four days per week and was feeling tired and had pain in her body especially her arms, shoulders and legs;
(g) as at 4 October 2019 the applicant reported chronic pain in her arm and shoulders and reported that strength in her arm just disappears, and
(h) as at 18 October 2019, the applicant reported being very upset and emotional and that her employment was terminated in a meeting on 11 October 2019.
140.In my view, there is no psychological or psychiatric evidence that would suggest that the notes of Ms Lubica Vracar should not be accepted in this regard. Indeed, the onset of significant distress and depressive symptoms appears to have occurred after the termination of the applicant’s employment, as noted by Ms Lubica Vracar and also as noted by
Dr Davies.141.The respondent submitted that before, during and after the above period of notes of
Ms Lubica Vracar, there were no references at all to the left shoulder in the treatment notes of Dr Jasim, Mr Kontopolous and Mr Tarek, nor in the reports of the treating specialists referred to above. It was submitted that the absence of reference to the left shoulder and treatment of the left shoulder by the other treatment providers suggested that the applicant had no left shoulder symptoms until probably the time that she was examined by Dr Dias in September 2020. Reliance in this regard was placed upon the absence of a reference to the left shoulder in the report of Dr Rimmer and also a lack of follow-up treatment by Dr Jasim following the left shoulder ultrasound referral in April 2020.
142.I do not accept these submissions by the respondent. In the context of specific clinical notes by Ms Lubica Vracar as noted above, in my view the absence of any reference to the left shoulder in the notes or reports of other treatment providers was not evidence of an absence of symptoms in the left shoulder.
143.Particular attention was given by the respondent to the clinical notes of Mr Nick Kontopoulos, physiotherapist, Dr Jasim and also the chiropractor Mr Tarik. In respect of the notes of
Mr Nick Kontopoulos, the applicant submitted that the clinical observations and treatment recorded were repeated in identical or very similar terms. The respondent submitted that, while repetitively similar, they were evidence of a lack of treatment and symptoms in respect of the left shoulder. I accept the applicant’s submissions in this regard. These notes did appear to me to have the suggestion of computer-generated repetition. Similarly, the notes of Dr Jasim indicated some degree of repetition in relation to the right shoulder and elbow although not to the same degree as Mr Kontopoulos. I do not place weight on the clinical notes of the chiropractor, as the referral to him was in the context of symptoms in the neck and the back.
144.As noted above the purported inconsistency between the applicant’s account of the onset of left shoulder symptoms and the medical histories in the clinical notes should be treated with caution[2], particularly in the context of the specific clinical notes of Ms Lubica Vracar. In particular, the notes do not disclose the circumstances and questions asked in each consultation and the manner in which the history was obtained. In my view, the notes recorded by Ms Lubica Vracar outweigh the absence of reference to the left shoulder in the notes of the other treatment providers. Additionally, in the context of the notes of
Ms Lubica Vracar, the absence of a description, such as in the notes of Dr Jasim, or an unexplained and repeated and in my view cryptic reference to “(L side ok)”, such as in the notes of Mr Nick Kontopoulos, does not establish a lack of symptoms in the left shoulder. Similar considerations apply to the 351 pages of medical certificates.[2] Mason v Demasi [2009] NSWCA 227 at [2]
145.The report of Dr Rimmer can be dealt with briefly. It was notable for its brevity, particularly in relation to the mechanism of injury and the description of history following injury and treatment. Dr Rimmer recorded range of motion findings only in relation to the right shoulder. In the context of the clinical notes of Ms Lubica Vrakar, and also the notes of Dr Jasim in respect of the ultrasound referral for the left shoulder in April 2020, both of which took place prior to the examination by Dr Rimmer in July 2020, I do not place weight on Dr Rimmer’s report as being supportive of the proposition that the clinical history is inconsistent with symptoms arising in the applicant’s left shoulder prior to her consultation with Dr Rimmer. Also supportive of this conclusion are the findings of restriction in the range of movement of the left shoulder in the reports of Dr Dias and Dr Davies of 18 December 2020.
146.In relation to the consultation with Dr Jasim on 3 April 2020, in which restricted and tender movements in both the left shoulder and left elbow noted and a referral was arranged for an ultrasound of the left shoulder, and the ultrasound review consultation on 16 April 2020,
I note the repetition of the ultrasound review left shoulder entry on 22 April 2020 and 20 May 2020. As the applicant submitted, this appears to me to be computer-generated repetition. The respondent submitted that there was no follow-up by Dr Jasim by way of treatment of the left shoulder and accordingly there was no evidence of left shoulder symptoms other than the initial entry. I do not accept this submission. The initial entry on 3 April 2020 was evidence of left shoulder symptoms. The subsequent clinical notes were not informative in this regard, although the fact that there were three follow-up consultations in respect of the left shoulder is in my view not inconsistent history of left shoulder symptoms at that time.147.The respondent submitted that Dr Davies in his report of 21 May 2017 recorded the range of motion findings, that were reproduced in the table above, and that these findings indicated that the right side was considerably more restricted than the left arm and that the applicant had made no complaint about any issues with the left arm which would be considered to be normal at that point in time. The applicant submitted that these findings in the report of
Dr Davies of 21 May 2017 in respect of limited extension, abduction and external and internal rotation on both the right side and the left side is an indication that the left shoulder was for some reason not normal. I do not accept the submission by the respondent in this regard. In my view, Dr Davies in his report of 21 May 2017 made a comment as to the restriction of the right shoulder only, but he did not go so far as to say that the left shoulder findings were normal. I refrain, however, from accepting the applicant’s submission that the findings recorded by Dr Davies in respect of the left shoulder were not normal. In my view, this is a matter for expert medical opinion and I decline to accept these submissions. However, the examination findings by Dr Davies are not inconsistent with the proposition that the applicant had symptoms and restrictions in her left shoulder at that time.148.In my view, the report of Dr Dias is therefore soundly based on a reasonably accurate history in respect of the applicant’s left shoulder symptoms, restrictions and overuse. He noted that the applicant began to experience symptoms of pain and stiffness affecting her left shoulder from around mid 2016 onwards due to overcompensation for the right shoulder condition. In my view, this is based on sound evidence arising from the applicant’s statement and the evidence recorded by Ms Lubica Vracar and Dr Jasim in April 2020. The findings of restricted range of movement of the left shoulder in the report of Dr Davies in December 2020 are also not inconsistent with those found by Dr Dias.
149.In my view, the facts in relation to the applicant’s left shoulder are set out by Dr Dias in his report in a manner which is sufficiently like the evidence that I have accepted from the clinical notes of Ms Lubica Vrakar and Dr Jasim[3]. In my view, the opinion of Dr Dias provides a satisfactory basis upon which findings can be made[4].
[3] Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509–510; [1985] HCA 58; 59 ALJR 844 at 846
[4] Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43
150.I prefer and accept the opinion of Dr Dias that the applicant developed a consequential left shoulder condition due to compensatory overuse for her right upper limb injury over the course of the previous five years.
151.It is necessary for the applicant to establish that the symptoms and restrictions in her left shoulder have resulted from her right shoulder injury.[5] This requires a common sense evaluation of the causal chain and is a question of fact for determination on the basis of evidence including expert evidence[6], within the statutory context of the Workers Compensation Act 1987 (the 1987 Act). The decision in Moon was made in the context of a permanent impairment claim, but the reasoning applied also to a weekly compensation claim with the same causal test, that is the loss “results from” the relevant work injury[7].
[5] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) at 45
[6] Moon at 47, discussing Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452 (Kooragang) at 463-4
[7] Moon At 46
152.The common sense approach to causation[8] should have regard to the statutory context[9]. The context in which a common sense approach to causation is placed is within section 66(1) of the 1987 Act, that is whether the consequential left shoulder condition resulted from the right shoulder injury of 1 August 2015[10].
[8] Kooragang
[9] Comcare v Martin [2016] HCA 43
[10] Moon at [46]
153.The causal chain in this case was that the applicant increased the use of her left shoulder in activities at work, and also at home and generally, as a result of the right shoulder injury in the context of severe right shoulder pain. In early 2016 she started to notice left shoulder pain as well but continued with treatment and investigations in relation to her right shoulder and neck, including right shoulder surgery in August 2016 and consideration of chronic pain and complex regional pain in respect of the right upper limb. In October 2018 the applicant complained to Ms Lubica Vracar of limited right arm movement and overusing the left arm and by April 2019 was complaining of pain in a number of areas of the body including both shoulders and by October 2019 she was complaining of chronic pain in her arms and shoulders. By April 2020 the applicant consulted Dr Jasim with respect to her left shoulder symptoms and was referred for a left shoulder ultrasound which was the subject of three follow-up consultations. The opinion of Dr Dias supports the conclusion that the applicant’s left shoulder condition resulted from her accepted right shoulder injury.
154.I find that the applicant started to notice symptoms in her left shoulder in early 2016 at a time when she had been experiencing severe pain in her right shoulder. She described the pain in her right shoulder prior to surgery as extreme. I find that from early 2016 and thereafter until the time of assessment by Dr Dias in September 2020, a period including the applicant’s work activities with the respondent until termination on 19 November 2019, the applicant compensated for the severe pain in her right shoulder by overusing her left arm and shoulder. I find that the symptoms and restrictions in the applicant’s left shoulder resulted from her right shoulder injury. I find that the applicant sustained a left shoulder condition consequential to the accepted right shoulder injury on 1 August 2015.
155.Injury to the right upper extremity and cervical spine are not in dispute.
156.In relation to the CRPS, the parties seek medical assessment to ascertain firstly whether there is CRPS and, if so, an assessment of permanent impairment. Unfortunately, this issue was not raised at the telephone conference. In my view, a referral for the assessment of the degree of permanent impairment in relation to CRPS may be included in the referral for the assessment of permanent impairment without reference to a question as to whether or not there is CRPS. The Medical Assessor would then assess the degree of permanent impairment of the applicant in respect of CRPS as a result of injury on 1 August 2015. That degree of permanent impairment in respect of CRPS may be assessed at 0% or some other percentage by the Medical Assessor. The issue of section 322A may otherwise be relevant in these circumstances.
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