Stojcevska v DL070912 Pty Ltd (formerly known as Darrell Lea Chocolate Shops Pty Ltd) deregistered
[2023] NSWPIC 195
•1 May 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Stojcevska v DL070912 PTY LTD (formerly known as Darrell Lea Chocolate Shops Pty Ltd) - deregistered [2023] NSWPIC 195 |
| Claimant: | Rosa (Ruza) Stojcevska |
| insurer: | DL070912 Pty Ltd (formerly known as Darrell Lea Chocolate Shops Pty Ltd) |
| Member: | 1 May 2023 |
| DATE OF DECISION: | Karen Garner |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application for assessment by a Medical Assessor (MA); applicant had accepted injury to cervical spine and lumbar spine; whether the applicant sustained injury pursuant to sections 4(a) and 9A in respect of right upper extremity and left upper extremity; whether applicant sustained consequential injury in respect of right upper extremity, left upper extremity, upper digestive tract and anal disease; Held – applicant sustained injury pursuant to sections 4(a) and 9A to her right shoulder; applicant sustained consequential conditions in respect of the right shoulder, right elbow, right wrist, left wrist, gastrointestinal condition and anal disease; award for respondent in relation to left shoulder injury, left shoulder consequential condition, left elbow injury and left elbow consequential condition; matter remitted to the President of the Personal Injury Commission for referral to a MA for assessment of permanent impairment in relation to the applicant’s right upper extremity (shoulder, elbow, wrist), left upper extremity (wrist), upper digestive tract, anal disease and TEMSKI/scarring. |
| determinations made: | |
The Commission determines:
The applicant sustained an injury to her right shoulder in the course of her employment with the respondent to which the applicant’s employment was a substantial contributing factor pursuant to s 4(a) and 9A of the Workers Compensation Act 1987.
The applicant sustained a right shoulder consequential condition.
The applicant sustained a right elbow consequential condition.
The applicant sustained a right wrist consequential condition.
The applicant sustained a left wrist consequential condition.
The applicant sustained a gastrointestinal consequential condition.
The applicant sustained anal disease consequential condition.
The applicant not has discharged the onus to establish, on the balance of probabilities, that she sustained left shoulder injury in the course of her employment to which her employment was a substantial contributing factor or a left shoulder consequential condition.
The applicant not has discharged the onus to establish, on the balance of probabilities, that she sustained left elbow injury in the course of her employment to which her employment was a substantial contributing factor or a left elbow consequential condition.
The Commission orders:
Award for the respondent in respect of left shoulder injury and left shoulder consequential condition.
Award for the respondent in respect of left elbow injury and left elbow consequential condition.
The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows:
Date of injury: 31 March 2006 (deemed)
Body parts: Right upper extremity (shoulder, elbow, wrist)
Left upper extremity (wrist)
Upper digestive tract
Anal disease
TEMSKI/scarring
Method: Whole Person Impairment
The materials to be referred to the Medical Assessor are to include:
(a) Application for Assessment by a Medical Assessor and attachments;
(b) Response to Application for Assessment by a Medical Assessor and attachments, and
(c) Application to Admit Late Documents by worker dated 30 March 2023 with attachments.
STATEMENT OF REASONS
BACKGROUND
Rosa (Ruza) Stojcevska (the applicant) is 60 years old and was employed by DL070912 Pty Ltd (formerly known as Darrell Lea Chocolate Shops Pty Ltd) (the respondent) as a store worker.
The applicant alleges that she sustained injury to her cervical spine, lumbar spine, left upper extremity and right upper extremity from the nature and conditions of her employment with the respondent, with a deemed date of injury of 31 March 2006. The applicant also alleges that she also sustained consequential conditions in her left upper extremity and right upper extremity, upper digestive tract and anus.
A Medical Assessment Certificate (MAC) issued by the Workers Compensation Commission (WCC) on 17 December 2009 stated an assessment of total 12% whole person impairment (WPI), calculated on the basis of 5% WPI in respect of soft tissue injury of the cervical spine and 7% WPI in respect of soft tissue injury of the lumbar spine, both injuries being due to the nature and conditions of the applicant’s work with the respondent with a deemed date of injury of 31 March 2006.
By Certificate of Determination issued by the WCC on 29 January 2010, an award was made in favour of the applicant for $15,937.50 in respect of 12% permanent impairment of the cervical spine and lumbar spine, resulting from injury deemed to have occurred on 31 March 2006.
A MAC issued by the WCC on 13 June 2017 stated an assessment of total 7% WPI, calculated on the basis of 7% WPI in respect of soft tissue injury of the cervical spine and 7% WPI in respect of mechanical lower back pain of the lumbar spine, being due to the nature and conditions of the applicant’s work with the respondent, with a deemed date of injury of 31 March 2006.
By Certificate of Determination – Consent Orders issued by the WCC on 17 May 2017: an award was made in favour of the respondent in relation to any alleged injury to the left lower extremity (hip) and alleged consequential condition to the left lower extremity (hip); the respondent agreed to pay the applicant’s expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), and the matter was remitted to the Registrar for referral to an Approved Medical Specialist (as they were then known) for assessment of WPI in respect of the applicant’s lumbar spine. The applicant discontinued any claim in respect of carpal tunnel syndrome.
By Certificate of Determination issued by the WCC on 18 July 2017: the WCC determined that the applicant suffers 7% permanent impairment in respect of the lumbar spine with a deemed date of injury of 31 March 2006 and determined that the applicant has no entitlement to further lump sum compensation resulting from such injury deemed to have occurred on 31 March 2006.
By a notice dated 12 November 2020, the respondent’s insurer (the insurer) stated that weekly compensation entitlements which had been paid to the applicant pursuant to ss 36 and 37 of the 1987 Act would cease on 17 June 2021. The insurer maintained that the applicant had no entitlement to weekly benefits after a total of 260 weeks had been paid because the greater than 20% WPI threshold for the purposes of s 39(2) of the 1987 Act had not been satisfied as Dr Panjratan had, on 8 October 2020, determined the applicant’s WPI to be 7%.
By Application for Review dated 7 June 2022, the applicant sought a review of the insurer’s decision dated 12 November 2020 to cease weekly compensation. The applicant relied on a report of Dr Medhat Guirgis dated 25 March 2022 which recorded right shoulder injury and right shoulder, right elbow and wrists consequential conditions (being a diagnosis of residual median neuropathy in the bilateral carpal tunnels, rotator cuff right shoulder syndrome and right external epicondylitis syndrome). The applicant also relied on a report of Dr Neil Berry dated 25 May 2022, which recorded gastrointestinal consequential conditions (being a diagnosis of gastritis and haemorrhoids as a result of taking multiple medications). These supported an assessment of greater than 20% WPI and an entitlement to weekly compensation benefits beyond 260 weeks.
By letter dated 21 June 2022, the insurer noted that the applicant’s weekly benefits had ceased by operation of s 39(1) of the 1987 Act (after a total of 260 weeks had been paid) and that insurer did not concede that the applicant satisfied the 21% WPI threshold for the purposes of s 39(2) of the 1987 Act.
By letter dated 26 September 2022, the insurer maintained it’s position that the applicant does not satisfy the greater than 20% WPI threshold for the purposes of s 39(2) of the 1987 Act, based on reports of Dr Sidharth Sethi dated 20 July 2022 and Dr Robert Breit dated 16 August 2022.
By notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) dated 26 September 2022, the insurer maintained its decision that the applicant was not entitled to weekly compensation benefits. The notice stated that the respondent accepted injury to the applicant’s lumbar spine and cervical spine but declined liability in respect of gastrointestinal, wrists, right shoulder and right elbow injury and consequential conditions. The respondent relied upon ss 4, 9A, 33, 59 and 60 of the 1987 Act.
By notice issued pursuant to s 78 of the 1998 Act dated 5 December 2022, the insurer again maintained it’s decision. The respondent again relied upon ss 4, 9A, 33, 59 and 60 of the 1987 Act.
On 13 February 2023, the applicant initiated proceedings in the Personal Injury Commission (the Commission) by an Application for Assessment by a Medical Assessor (Application) which sought assessment as to whether the applicant’s degree of permanent impairment is more than 20% pursuant to s 39 of the 1987 Act. The application stated that the body parts to be assessed are cervical spine, lumbar spine, left upper extremity, right upper extremity, upper digestive tract and anal disease.
On 27 February 2023, the insurer lodged in the Commission a Response to Application for Assessment by a Medical Assessor (Response). The Response stated that the respondent relies upon its determination dated 12 November 2020 and correspondence dated 26 September 2022 in relation to s 39 of the 1987 Act. It noted that liability has been accepted with respect to injuries to the cervical spine and lumbar spine. It stated that liability was declined for injuries to the right elbow, right shoulder, wrists and gastrointestinal conditions under cover of notices dated 26 September 2022 and 5 December 2022.
PROCEDURE BEFORE THE COMMISSION
At a hearing on 6 April 2022, the applicant was represented by Ms Lyn Goodman, counsel, instructed by Ms Miki Milicevic of Milicevic Solicitors, with the applicant. The respondent was represented by Mr Howard Halligan, counsel, instructed by Ms Katie Casey of Hicksons Lawyers, with Mr Simon Bowden of the insurer, GIO.
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.
ISSUES FOR DETERMINATION
The respondent accepts injury to the applicant’s cervical spine and lumbar spine in the course of employment with a deemed date of injury of 31 March 2006.
The following issues remain in dispute:
(a) whether the applicant sustained:
(i)injury arising out of or in the course of employment and her employment was a substantial contributing factor to the injury (ss 4(a) and 9A of the 1987 Act), in respect of her:
A.right upper extremity (shoulder, elbow and wrist); and
B.left upper extremity (shoulder, elbow and wrist), and/or
(ii)consequential condition in respect of:
A.right upper extremity (shoulder, elbow and wrist); and
B.left upper extremity (shoulder, elbow and wrist);
C.upper digestive tract;
D.anal disease, and
(b) if relevant, the degree of permanent impairment resulting from such injury or consequential condition.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application with attached documents;
(b) Response with attached documents, and
(c) Application to Admit Late Documents (AALD) by worker dated 30 March 2023 (which was admitted into evidence by consent).
Oral evidence
No party applied to adduce oral evidence or cross-examined any witness.
Applicant’s statement
The applicant gave evidence by way of two written statements.[1]
[1] ARD, page 1; AALD of worker dated 30 March 2023, page 1.
The applicant stated that during her employment with the respondent, between two to five times each day, she was required to transport stock from the stock room to the shopping centre, which was up two levels and on the other side of the building. This required the applicant to load boxes of stock onto large trolleys, push and pull the trolleys and use a lift to transport the trolleys and stock. When the lift was often not working, the applicant was required to manually transport the stock up four flights of stairs. The applicant complained to her manager about the lift not working and the system for transporting stock but was told to “Do the best you can”.
The applicant stated that she started having back pain when she transported stock and the pain became more significant over time.
The applicant stated that on 29 November 2005, she was transporting three boxes of stock in a hurry. Because the main lift was not working, the applicant carried and lifted the boxes onto a loading dock platform to use another lift but that lift was not available. The applicant then carried the boxes up stairs when she felt pain and a “crack” in her lower back. By the time the applicant reached the top of the stairs, she had a lot of back pain. She reported the pain to her manager but was instructed to “Finish the Christmas stock and then you can go home”. The applicant continued working in pain until 5.00pm, by which time her pain was even more significant.
The applicant attended her treating practitioner, Dr Oreb who referred her for imaging. The applicant was certified unfit to work for some months before being certified to work for selected duties.
The applicant stated that she worked with the Roads and Maritime Services as a school crossing guard for 12.5 hours each week between about June 2010 and August 2014. She was required to take pain medication to cope with pain during her shifts.
The applicant stated that her pain has deteriorated over the years. At times, she is bedridden due to pain. She has constant pain in her neck which radiates to both her shoulder blades and shoulders. The applicant continues to experience pain in her shoulders and arms. She has a burning sensation, pain, numbness and a sensation of pins and needles in her right and left shoulders. The applicant’s considerable pain has caused significant functional limitations and she requires considerable assistance including with personal care, meal preparation, maintaining her home and driving.
The applicant has been required to consume significant amounts of medication to treat her pain, which has caused ongoing epigastric pain, severe reflux, severe constipation and haemorrhoids. In July 2021, the applicant underwent gastroscopy and colonoscopy, performed by Dr Alexander Simring, gastroenterologist.
The applicant currently consumes medication being Micardis, Crestor, Brintellix, Mobic, Normison, Palexia, Panadol Osteo, Panadol and Nurofen.
Treating medical evidence
Dr Zelko Oreb, treating practitioner
In a report dated 18 October 2008, Dr Oreb noted that the applicant had presented to the medical centre on 29 November 2005 complaining of neck pain, lumbar spine pain, bilateral shoulder pain and headaches after unloading a trolley of boxes at work. It also noted that, in February 2006, the applicant consulted with Dr Brennan and was reporting diffuse spinal pain, interscapular pain and headaches, pain across both shoulders and pain radiating down her left leg. It noted that the applicant was treated with analgesia (Digesic and Mersyndol Forte) and non-steroidal anti-inflammatory drugs (NSAIDs) (Voltaren and Mobic).
In a report dated 4 March 2015, Dr Oreb noted that, over the past six years, the applicant continued to complain of headaches, neck pain, lower back pain and bilateral carpel tunnel symptoms. He noted that her treatment included NSAIDs (Voltaren, Mobic), Panadeine Forte, Panadol Osteo, Lyrical, Lexapro, Seroquel and Normison.
In a report dated 23 October 2016, Dr Oreb noted that the applicant experienced ongoing pain and symptoms which included neck pain and stiffness radiating into the right and left shoulders, weak wrist and grip with ongoing mild tingling and numbness despite carpel tunnel decompression surgeries. Dr Oreb also noted “recently worsened” right shoulder pain (for which the applicant was referred to Dr Petchell for review) and that an ultrasound of the right shoulder showed supraspinatus tendinosis, partial thickness tear of supraspinatus tendon and subacromial bursitis. It noted the applicant’s treatment with medication including analgesia (Mersyndol Forte) and NSAID (Voltaren).
Dr Medhat Guirgis, consultant orthopaedic surgeon
Dr Guirgis treated the applicant upon referral from Dr Oreb. Dr Guirgis provided a number of reports between November 2008 and March 2022.[2]
[2] Application, pages 24-65.
In a report dated 25 March 2022, Dr Guirgis recorded the applicant’s history which included: development of signs of right and left carpal tunnel syndrome in late 2005 for which the applicant underwent surgical release of the median nerve in the carpal tunnels in July 2008; ongoing painful stiffness of her wrists and weakness of her grip strength in both hands and mild tingling and numbness in her hands and fingers; ongoing neck and lower back pain and stiffness with radiation from the neck to the top of the shoulder blades and from the lower back down the legs in an L5 distribution; disabling cervicogenic occipital headache attacks in association with neck muscle tension; and further, over the last few years the altered way in using her arms in her daily living activities had resulted in right elbow pain, right forearm fatigue and pain, tightness and loss of strength in her right shoulder.
On examination, Dr Guirgis noted that the applicant presented with symptoms of chronic pain. In relation to the applicant’s right shoulder, he noted that: the normal rounded contour of the right shoulder was preserved; the range of movement of the right shoulder was somewhat limited in comparison to the left shoulder; and there was tenderness over the right upper trapezius extending to the right supraspinous fossa and medial scapular border. In relation to the right elbow, he noted that: there was tenderness over the soft tissue attachments to the external epicondyle of the right humerus with normal range of movements; provocation tests were positive. In relation to the wrist joints and hands, he noted that: there was scarring from carpal tunnel release surgery; there was still demonstrable sensory blunting in the median nerve territory in the right and left hand; and there was Grade V minimum in the median nerve innervated thenar muscles in both hands. He also noted ongoing symptoms in relation to the applicant’s cervical and lumbar spine.
Dr Guirgis diagnosed:[3]
(a) chronic cumulative micro-traumatic mechanical derangement of the cervical and lumbar spines with initial intervertebral disc involvement which had also triggered and aggravated the effects of underlying asymptomatic age-appropriate degenerative changes;
(b) residual median neuropathy in the right and left carpal tunnels, which he considered to be consequential effects of a “double crush syndrome and augmentation of the stimuli generated at the injured cervical spine level”, being the “subclinical involvement of the nerve roots proximally in the neck, on the subclinical neuropathic status of the decompressed median nerves distally in the carpal tunnels since 2008”;
(c) consequential rotator cuff syndrome in the applicant’s right shoulder, partly cervicogenic and partly due to the altered mechanics of her upper limb;
(d) consequential right external epicondylitis syndrome due to the altered mechanics of the applicant’s upper limb;
(e) consequential soft tissue jarring of the applicant’s left hip triggering and aggravating early but subtle age-appropriate changes, and
(f) symptoms of chronic pain, anxiety, depression and failure to cope.
[3] Application, pages 27-28.
Dr Guirgis opined that the applicant’s employment was a substantial contributing factor to all the injuries and those injuries were a substantial contributing factor to the applicant’s symptoms, signs, incapacities and disabilities.
Dr Guirgis assessed total 32% WPI, calculated on the basis of 5% WPI in respect of the cervical spine, 12% WPI in respect of the lumbar spine, 8% WPI in respect of the left upper extremity, 11% WPI in respect of the right upper extremity and 2% WPI in respect of the left lower extremity.
Dr Jeffrey Petchell, orthopaedic surgeon
In a report dated 6 February 2017,[4] Dr Petchell stated that the applicant presented with a year long history of right shoulder pain which seems to be worsening. He stated that pain is localised to the posterior and lateral shoulder, varying in intensity. He noted that the applicant used Panadol and Panadeine Forte for pain relief and that a corticosteroid injection had provided only partial temporary relief of symptoms.
[4] Response, page 15.
On examination, Dr Petchell noted that the applicant had right sided neck pain with Spurling’s test. There was no wasting about the shoulder. There was focal tenderness over the supraspinatus insertion. There was no tenderness over the AC joint or bicipital groove. Flexion and abjection were to 170 degrees, external rotation to 70 degrees with the arm by the side and 90 degrees in abduction, internal rotation was to 60 degrees with the thumb reaching T9. He noted that there was some weakness of supraspinatus function on the right with a positive Hawkin’s impingement sign. Speed’s test was negative. Elbow motion was from 0-140 degrees with full pronation and supination. There was 20 degrees of cubitus valgus. There was no obvious crepitus.
He noted that ultrasound of the right shoulder showed a partial articular supraspinatus tear with accompanying subacromial bursitis. There was some effusion at the AC joint. There was sonographic evidence of impingement.
He noted that the applicant would be treated with a repeat guided subacromial corticosteroid injection and physiotherapy.
Associate Professor Dennis Cordato, neurologist
On 23 May 2014, Dr Cordato reported that a lower limb nerve conduction study was within normal limits. In a report dated 24 February 2017, Dr Cordato noted the applicant was required to intermittently use a lot of analgesia for chronic pain including “chronic neck and shoulder problems” with constant neck pain radiating to the occipital scalp. In a report dated 5 July 2021, Dr Cordato noted cervical spine pathology, which he opined was the generator of the applicant’s headaches.
Efrem Bungaric, physiotherapist
Mr Bungaric provided reports dated 21 July 2016 and 26 August 2016.[5] He noted that the applicant complained of chronic cervical and lumbar pain and cervicogenic headaches and functional disability. He noted that the applicant had right shoulder pain which persisted despite cortisone injection.
[5] Application, pages 88 and 89.
Investigations
Reports of various radiological investigations were included in the evidence which showed cervical spine and lumbar spine pathology.[6]
[6] Application, pages 81, 82, 85, 86, Response, pages 49, 54.
A colonoscopy, reported by Dr Daskalopoulos on 10 June 2014,[7] showed normal colon except for melanosis coli.
[7] Response, page 50.
An ultrasound right shoulder, reported by Dr Ansari on 14 April 2016,[8] showed supraspinatus tendinosis and an intermediate grade partial thickness tear of the anterior fibres of the supraspinatus tendon involving the articular surface and subacromial bursitis.
[8] Response, page 51.
An upper endoscopy and colonoscopy, reported by Dr Borody on 17 July 2017,[9] showed normal bowel and normal oesophagus with oesophago-gastric junction slightly irregular but no extensive erosions were seen.
[9] Response, page 52.
A gastroscopy and colonoscopy reported by Dr Simring on 23 July 2021,[10] showed normal bowel apart from small haemorrhoids and several small-mouthed diverticula, normal oesophagus, normal duodenum and mild flat erosive gastritis involving the upper and lower stomach. Dr Simring stated that constipation and haemorrhoids were worsened by opiates, which should be minimised.
[10] Application, pages 90, 91. Response, page 56.
Histopathology and microbiology, reported by Dr Parastoo Irandoost to Dr Simring on 23 July 2021,[11] showed mild chronic gastritis but not significant abnormality of the small bowel.
[11] Application, pages 92-93.
A gastroscopy and colonoscopy, reported by Dr Simring on 31 August 2021,[12] showed mild erosive gastritis, mild patchy chronic gastric inflammation, several diverticula in the sigmoid colon, melanosis coli and small internal haemorrhoids. Dr Simring stated that dyspeptic symptoms were likely related to NSAID-induced gastritis. He recommended that the applicant minimise the use of NSAIDs if possible. He stated that constipation was likely related to opiates, which should also be minimised. He stated that the applicant should also reduce the use of stimulant laxatives.
[12] Application, page 94.
An ultrasound right shoulder, reported by Dr Helen Scott on 10 June 2022,[13] showed supraspinatus tendinopathy and intrasubstance tear and subacromial bursitis and impingement.
Independent medical evidence
[13] Response, page 58.
Dr Neil Berry, specialist general surgeon
Dr Berry provided independent medical evidence at the request of the applicant.
In a report dated 23 May 2022,[14] Dr Berry recorded a reported history which included: discomfort in the applicant’s shoulders over a period of time in addition to back pain when she worked for the respondent; continuing bilateral carpel tunnel syndrome after she ceased work with the respondent and was working as a school crossing guard; epigastric pain; reflux and constipation. Further, Dr Berry noted that the applicant underwent cardiac bypass surgery in December 2021 and complications which necessitated further cardiac surgery later in 2022.
[14] Application, page 15.
Dr Berry noted that the applicant reported ongoing severe chest pain and sternal pain, aggravated by most arm movements. The applicant also reported ongoing back pain, neck pain and pain going down her right arm, reflux, constipation and occasional bleeding from the bowel when severely constipated.
Dr Berry noted that the applicant was then taking medication being Palexia, Normison, Telmisartan, Rosuvastatin, Endone and Mobic.
On examination, Dr Berry noted the applicant could only lift the arms to 90 degrees and other movements of the shoulders caused severe chest pain and were not carried out. The applicant had scars on both wrists from carpal tunnel surgery. Examination of the abdomen revealed tender epigastrium and small haemorrhoids.
Dr Berry diagnosed a gastrointestinal condition, being gastritis and Grade I haemorrhoids, which he opined was provided by the applicant’s medication intake, particularly Endone, Palexia and Mobic which were required for her work injuries with the respondent. On that basis, Dr Berry opined that the applicant’s employment was a substantially contributing factor to the applicant’s gastrointestinal condition. Dr Berry noted that the applicant gave a history of bilateral shoulder pain but he was unable to complete an examination and form an opinion as to causation because she still had an un-united sternum from recent cardiac surgery.
In a further report dated 23 May 2022, Dr Berry stated an assessment of total 3% WPI, calculated on the basis of 2% WPI in respect of the upper digestive tract and 1% in respect of anal disease.
Dr Vijay Panjratan, orthopaedic surgeon
Dr Panjratan provided an independent medical opinion at the request of the insurer.
In a report dated 22 June 2016,[15] Dr Panjratan noted a history of injury involving low back pain. He noted that the problem developed due to lifting boxes and taking them up and down stairs. He noted that the problem was building for a while prior to injury on 29 November 2005 when the applicant had to manually carry boxes.
[15] Response, page 6.
Dr Panjratan noted that the applicant reported constant ongoing pain which included left leg pain for the last three to four years and headaches. The applicant also reported carpal tunnel symptoms, which she attributed to her employment with the respondent. Dr Panjratan stated that he noted that the insurer had not accepted carpal tunnel symptoms “and I advised her to stick to the problems that have been accepted”.[16]
[16] Response, page 8.
On examination, Dr Panjratan noted that the applicant had pain all around the cervical spine going towards the shoulders. Bending the neck towards the left caused pain on the right. Bending on the right also caused pain on the right side in the right shoulder.
Dr Panjratan found that there was no abnormality of the applicant’s neck or back although he noted that there was a lot of action and reaction in her presentation. He stated that the neck and back condition was consistent at the time of injury but should not have persisted at the time of examination. He found that there was no aggravation to a pre-existing condition. He stated that employment was a substantial contributing factor. Dr Panjratan stated that he could not assess WPI because on the day of examination the applicant’s cervical spine and lumbar spine were normal and she did not qualify for any impairment.[17]
[17] Response, page 13.
In a report dated 21 October 2020,[18] Dr Panjratan noted that the applicant’s current medication included Panadol, Panadeine, Mobic, Normison and antidepressants. Dr Panjratan noted that the applicant displayed a lot of pain behaviour but clinically she did not appear as bad. He assessed 7% WPI in respect of the lumbar spine only.
[18] Response, page 16.
Dr Siddarth Sethi, gastroenterologist and hepatologist
Dr Sethi provided an independent medical opinion at the request of the insurer.
In a report dated 20 July 2022,[19] stated a history that the applicant experienced pain in the lower back, mid back, shoulder, neck, left leg and hip since injury in 2005. He stated that from two years after the injury, the applicant experienced gastrointestinal symptoms which included reflux, constipation and rectal bleeding. He noted that the applicant took medication which included Cartia, Panadol Osteo, Mobic, Endone, Crestor, Palexia.
[19] Response, page 24.
Dr Sethi stated that the applicant’s gastrointestinal symptoms of reflux, bloating, distension, gas, cramping abdominal pain, constipation and rectal bleeding are persisting. He noted that in July 2021, gastroscopy/colonoscopy showed mild gastritis, mild diverticular disease and small haemorrhoids.
Dr Sethi diagnosed gastro-oesophageal reflux disease, irritable bowel syndrome and haemorrhoids.
Dr Sethi opined that the applicant’s gastrointestinal condition was not causally related to the applicant’s employment, work injury and medications that she subsequently received. Dr Sethi explained that such diagnoses were consistent with the applicant’s symptoms which did not commence until two years after her accepted work injury, they commonly affected the general population and were likely contributed to by the applicant’s mild obesity.
On that basis, Dr Sethi assessed 0% WPI in relation to the upper and lower gastrointestinal systems and anus.
Dr Sethi disagreed with the WPI assessment of Dr Berry on the basis that he considered that the histological finding of gastritis should be disregarded because it was a common finding and is of no clinical significance and, if that occurred, gastrointestinal symptoms alone could only result in 0% WPI assessment under the NSW workers compensation guidelines for the evaluation of permanent impairment (SIRA guidelines). Further, he found that the haemorrhoids could not be included in a WPI assessment because they were not causally related to the applicant’s work or accepted work injury.
Dr Robert Breit, orthopaedic surgeon
Dr Breit provided an independent medical opinion at the request of the insurer.
In a report dated 16 August 2022,[20] Dr Breit noted a history of injury, which included pain in the applicant’s neck, shoulders and arms which she tolerated because it was part of her job. He noted that the applicant experienced a crack in her back and resultant pain when carrying boxes up stairs on 29 November 2019. He noted that the applicant also reported a feeling of pins and needles in the arms. Dr Breit also noted that the applicant reported sustaining a right elbow fracture as a child that was treated surgically.
[20] Response, page 35.
Dr Breit stated that the applicant reported present complaints which included pain at the base of the neck radiating into the trapezium in the shoulders and then all the way down the arms where it is global. She reported a feeling of pins and needles involving all of the digits of both hands. The applicant reported neck and low back pain, pain in the right shoulder and occasional right elbow pain. He noted that the applicant’s medication included Palexia, Normison, Crestor, Mobic, Cartia and Panadol.
On examination, Dr Briet noted that the applicant constantly reported pain and movements were grossly but non-symmetrically restricted.
Dr Briet diagnosed only a soft tissue injury to the lumbar spine and stated that there were no other injuries. He opined that there is a very significant degree of maximisation.
Dr Breit did not accept that the applicant injured her wrists (carpal tunnel syndrome), right shoulder and right elbow arising out of or in the course of her employment with the respondent. Dr Breit did not accept that the applicant’s alleged injuries could result from a “minor event to the back”. He opined that the applicant’s presentation was inconsistent with the claimed mechanism of injury and stated that there was nothing to indicate any work-related injury to the upper right extremity, particularly in the context of her childhood history of right elbow injury and surgery. He also noted that the applicant displayed a full range of elbow movement with no tenderness or evidence of epicondylitis.
Noting that the insurer had accepted liability for lumbar spine and cervical spine injury, Dr Breit assessed total 10% WPI, calculated on the basis of 5% WPI in respect of the lumbar spine and 5% WPI in respect of the cervical spine.
In a further report dated 25 October 2022,[21] Dr Breit referred to the right shoulder ultrasound reports dated 14 April 2016 and 10 June 2022 and the report of Dr Patchell dated 6 February 2017. Dr Breit stated that there is an association between repetitive overhead work and rotator cuff pathology. He acknowledged that, from the information provided by the applicant, that was a part of her work over some time.
[21] Response, page 47.
SUBMISSIONS
Counsel for the applicant and the respondent both made oral submissions which were recorded.
Applicant’s submissions
Ms Goodman’s submissions, on behalf of the applicant, may be summarised as follows:
(a) the applicant’s evidence in relation to the nature and conditions of her employment and the events of 29 November 2005 is not disputed;
(b) the respondent accepts cervical spine and lumbar spine injury with a date of injury of 31 March 2006 (deemed);
(c) the applicant does not rely on a left hip injury;
(d) the Commission should prefer and accept compelling treating medical evidence and the applicant’s independent medical evidence in relation to the claimed injuries;
(e) the treating medical evidence and the applicant’s independent medical evidence supports a finding that the applicant sustained both frank and consequential shoulder injury and carpal tunnel injury as a result of the nature and conditions of her employment, in accordance with ss 4 and 9A of the 1987 Act;
(f) the treating medical evidence and the applicant’s independent medical evidence supports a finding that the applicant sustained the claimed gastrointestinal conditions, being consequential conditions caused by medications, in accordance with ss 4 and 9A of the 1987 Act, and
(g) on that basis, the Commission should make findings in favour of the applicant as claimed.
Respondent’s submissions
Mr Halligan’s submissions, on behalf of the respondent, may be summarised as follows:
(a) the Commission should prefer and accept the respondent’s compelling independent medical evidence in relation to the claimed injuries;
(b) the shoulder symptoms were not reported until about 2016, which was approximately 10 years after the accepted lumbar spine and cervical spine injuries occurred;
(c) there is no clear evidence of the nature and cause of the claimed gastrointestinal consequential condition, which also presented some time after the occurrence of the accepted work injuries. It is not sufficient that the applicant took medication which might have caused such gastrointestinal conditions;
(d) it is not appropriate to refer the anus body part to a Medical Assessor for assessment of WPI because it is only a series of haemorrhoids and there is no causal link to the employment;
(e) no causal link is established between the claimed injuries and the applicant’s employment;
(f) there is no basis to make the findings sought by the applicant, and
(g) on that basis, the Commission should make an award for the respondent.
Applicant’s submissions in reply
Ms Goodman confirmed that the applicant relies on:
(a) injury to her cervical spine, lumbar spine, left upper extremity (shoulder, elbow and wrist) and right upper extremity (shoulder, elbow and wrist) from the nature and conditions of her employment with the respondent, with a deemed date of injury of 31 March 2006, and
(b) consequential conditions in the applicant’s left upper extremity (shoulder, elbow and wrist) and right upper extremity (shoulder, elbow and wrist), upper digestive tract and anus.
Ms Goodman’s further submissions, on behalf of the applicant, may be summarised as follows:
(a) the respondent’s independent medical evidence is not compelling evidence in relation to the existence and cause of the claimed injuries – Dr Breit did not deal with causation of the disputed body parts;
(b) the evidence of the treating practitioners and the applicant’s independent medical experts clearly addresses the claimed injuries and causation of the claimed injuries and should be preferred;
(c) the applicant’s credit is not challenged and her evidence should be accepted, and
(d) the Commission should make findings sought by the applicant.
FINDINGS AND REASONS
The law
Section 9 of the 1987 Act provides that a worker who has received an “injury” shall receive compensation from the worker’s employer.
The term “injury” is defined in s 4 of the 1987 Act as follows:
“4 Definition of ‘injury’
In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
Section 9A of the 1987 Act states:
“(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4).
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a)the time and place of the injury,
(b)the nature of the work performed and the particular tasks of that work,
(c)the duration of the employment,
(d)the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e)the worker’s state of health before the injury and the existence of any hereditary risks,
(f)the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a)the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b)the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”
Sections 4 and 9A are separate requirements and must be independently satisfied in respect of an injury.[22]
[22] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, at [48].
Section 9A(1) of the 1987 Act requires that the employment must be a substantial contributing factor to the injury. For the causal connection required by s 9A(1) to be satisfied, the employment must be “real and of substance”.[23]
[23] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324, at [48].
It is not necessary for the applicant to establish that a consequential condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act or that the employment was a substantial contributing factor within the meaning of s 9A of the 1987 Act. In Moon v Conmah,[24] Deputy President Roche stated at [45]-[46]:
“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 section 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 sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[24] [2009] NSWWCCPD 134.
In Bouchmouni v Bakhos Matta t/as Western Red Services,[25] Roche DP stated:
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions…
The injury to Mr Bouchmouni’s right knee caused him to seek treatment in the form of surgery and physiotherapy. The evidence suggests that it was in the course of receiving that treatment, and/or as a result of an altered gait because of his knee symptoms, Mr Bouchmouni developed back symptoms. If that is accepted, and no reason has been advanced why it should not be, it is clear beyond doubt that his back condition has resulted from the treatment he received for his accepted knee injury and his altered gait. That does not, however, make the back condition an ‘injury’.”
[25] [2013] NSWWCCPD 4.
A commonsense evaluation of the causal chain is required. The legal test of causation was set out by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[26] (Kooragang), where Kirby P (as His Honour then was) stated:
“From the earliest days of compensation legislation, it has been recognised that causation is not always direct and immediate…
Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”[27]
[26] (1994) 35 NSWLR 452; 10 NSWCCR 796.
[27] Kooragang, at [461] (Sheller and Powell JJA agreeing).
His Honour stated at [463]-[464]:
“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. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a commonsense evaluation of the causal chain. 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. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”
Although the High Court in Comcare v Martin[28] raised some concerns about the common sense evaluation of the causal chain in a matter that concerned Commonwealth legislation, the common sense approach still has place in the application of the legislation to the present case.
[28] [2016] HCA 43, at [42].
The Court of Appeal in Nguyen v Cosmopolitan Homes[29] held that a tribunal of fact must be actually persuaded of the occurrence or existence of the fact before it can be found, and stated:
“(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;
(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact’s existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;
(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonably hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found, and
(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue.”
Consideration
[29] [2008] NSWC 246.
Nature and conditions of the applicant’s employment
The applicant’s credit is not in dispute. There is no evidence which is inconsistent with the applicant’s evidence in relation to the nature and conditions of her employment and the events of 29 November 2025.
It is accepted that the applicant sustained injury to her cervical spine and lumbar spine in the course of her employment, with a deemed date of injury of 31 March 2006.
On that basis, I accept the applicant’s evidence in relation to the nature and conditions of her employment and the events of 29 November 2025. In particular, I accept that in the course of the applicant’s employment, she regularly manually lifted boxes of stock, carried boxes of stock up stairs and over some distances across the shopping centre and she pushed and pulled large trolleys which transported stock.
Right shoulder
The applicant’s statement’s describes ongoing and constant pain in her neck which radiates to both shoulder blades and shoulders. She describes continuing pain and a sensation of burning, numbness and pins and needles in her right shoulder. Whilst the applicant’s statement’s stated that she experienced back pain during her employment with the respondent, it did not specifically refer to right shoulder pain during her employment.
On 23 October 2016, Dr Oreb recorded a history that the applicant reported that on 29 November 2005, the applicant reported bilateral shoulder (and other) pain after unloading a trolley of boxes at work. In February 2006, the applicant again reported bilateral shoulder (and other) pain. On examination, Dr Oreb noted that the applicant experienced ongoing neck pain which radiated into both shoulders and that the applicant’s right shoulder pain had “recently worsened”. Dr Oreb then also noted that an ultrasound of the right shoulder showed supraspinatus tendinosis, partial thickness tear of supraspinatus tendon and subacromial bursitis.
An ultrasound right shoulder, reported by Dr Ansari on 14 April 2016,[30] showed supraspinatus tendinosis and an intermediate grade partial thickness tear of the anterior fibres of the supraspinatus tendon involving the articular surface and subacromial bursitis.
[30] Response, page 51.
In July and August 2016, Mr Bungaric noted that the applicant had right shoulder pain which persisted despite cortisone injection.
On 6 February 2017, Dr Petchell recorded that the applicant had a year long history of right shoulder pain, localised to the posterior and lateral shoulder, which seemed to be worsening. On examination, Dr Petchell noted that there was focal tenderness over the supraspinatus insertion with some limitation in movement and weakness of supraspinatus function. He noted that ultrasound of the right shoulder showed a partial supraspinatus tear with accompanying subacromial bursitis with some effusion at the AC joint and sonographic evidence of impingement.
On 25 February 2017, Dr Cordato recorded a history which included chronic shoulder problems.
On 25 March 2022, Dr Guirgis recorded that the applicant had ongoing stiffness and pain radiating from the neck to the top of the shoulder blades. He recorded that over the last few years the altered way in which the applicant used her arms in her daily living activities had resulted in tightness and loss of strength in her right shoulder. On examination, Dr Guirgis noted that the range of movement of the applicant’s right shoulder was somewhat limited in comparison to the left shoulder and there was tenderness over the right upper trapezius extending to the right supraspinous fossa and medial scapular border. Dr Guirgis diagnosed consequential rotator cuff syndrome in the applicant’s right shoulder, partly cervicogenic and partly due to the altered mechanics of her upper limb. Dr Guirgis opined that the applicant’s employment was a substantial contributing factor to the injury.
An ultrasound right shoulder, reported by Dr Helen Scott on 10 June 2022,[31] showed supraspinatus tendinopathy and intrasubstance tear and subacromial bursitis and impingement.
[31] Response, page 58.
On 23 May 2022, Dr Berry recorded a reported history which included discomfort in the applicant’s shoulders over a period of time in addition to back pain when she worked for the respondent. Dr Berry’s was unable to conduct a complete examination of the applicant’s shoulders due to recent cardiac surgery.
On 22 June 2016, Dr Panjratan noted that the applicant reported a history of low back pain. Dr Panjratan advised the applicant to “stick to the problems that have been accepted”. Dr Panjratan did not record a history of shoulder pain. However, on examination he noted that the applicant had pain all around the cervical spine going towards the shoulders. He particularly noted right-sided shoulder pain. Dr Panjratan did not see evidence of the accepted cervical spine and lumbar spine injuries but considered that they had resolved in any event. He did not make any diagnosis in relation to other injuries.
On 16 August 2022, Dr Breit noted a history of injury, which included pain in the applicant’s shoulders which she tolerated because it was part of her job. Dr Breit stated that the applicant reported ongoing pain at the base of the neck radiating into the trapezium in the shoulders and then all the way down the arms and pain in the right shoulder. On examination, Dr Breit noted that the applicant constantly reported pain and movements were grossly but non-symmetrically restricted and he opined that there is a very significant degree of maximisation. Dr Breit did not accept that the applicant had shoulder injuries arising out of or in the course of her employment with the respondent. Further, Dr Breit did not accept that the applicant’s alleged injuries could result from a “minor event to the back”. He opined that the applicant’s presentation was inconsistent with the claimed mechanism of injury and stated that there was nothing to indicate any work-related injury to the upper right extremity. However, in a further report dated 25 October 2022, Dr Breit referred to the right shoulder ultrasound reports dated 14 April 2016 and 10 June 2022 and the report of Dr Patchell dated 6 February 2017. Relevantly, Dr Breit opined that there is an association between repetitive overhead work performed by the applicant and rotator cuff pathology.
Considering the evidence as a whole, and notwithstanding some inconsistencies in the evidence, I am persuaded and accept that the applicant experienced bilateral shoulder pain from 2005 and worsening right shoulder pain since that time. I accept that in 2016, radiology showed right shoulder showed supraspinatus tendinosis, partial thickness tear of supraspinatus tendon and subacromial bursitis. In 2022, radiology showed similar results of supraspinatus tendinopathy, intrasubstance tear and subacromial bursitis and impingement. Dr Patchell opined that the clinical situation was consistent with the reported radiology. On that basis, I am satisfied that the applicant has right shoulder rotator cuff syndrome.
I note that there is no evidence of any alternative mechanism of injury to the applicant’s right shoulder.
I am persuaded and accept that the reported right shoulder radiology is consistent with injury caused by the nature and conditions of the applicant’s employment. I give particular weight to the evidence of Dr Guirgis and Dr Breit in that regard,[32] which I consider to be consistent with the applicant’s evidence in relation to the nature and conditions of her work and the manual lifting, pushing and pulling motions that she was regularly required to undertake during her employment with the respondent.
[32] Response, page 48.
I also prefer and accept Dr Guirgis’ opinion that right shoulder rotator cuff syndrome was also partly a consequential condition due to the way in which the applicant used her arms in her daily living activities had resulted in tightness and loss of strength in her right shoulder. I consider that is also a real and likely cause of the applicant’s right shoulder condition, having regard to the considerable pain and limitations that she has experienced over an extended period of time.
On that basis, I find that the applicant sustained an injury to her right shoulder in the course of her employment pursuant to s 4(a) of the 1987 Act. Further, I find that the applicant’s employment was a substantial contributing factor to that injury pursuant to s 9A of the 1987 Act.
Further, I find that the applicant also sustained a right shoulder consequential condition.
Left shoulder
The applicant’s statement’s describes ongoing and constant pain in her neck which radiates to both shoulder blades and shoulders. She describes continuing pain and a sensation of burning, numbness and pins and needles in her left shoulder. Whilst the applicant’s statement’s stated that she experienced back pain during her employment with the respondent, it did not specifically refer to left shoulder pain during her employment.
Dr Oreb recorded that the applicant reported that on 29 November 2005, the applicant reported bilateral shoulder (and other) pain after unloading a trolley of boxes at work. In February 2006, the applicant again reported bilateral shoulder (and other) pain. On 23 October 2016, Dr Oreb noted that the applicant experienced ongoing neck pain which radiated into both shoulders.
On 25 February 2017, Dr Cordato recorded a history which included chronic shoulder problems. It is unclear if this included the left shoulder.
On 25 March 2022, Dr Guirgis noted that the applicant’s range of movement in her right shoulder was somewhat limited in comparison to her left shoulder. Dr Guirgis did not note any significant pain or symptoms, and nor did he make any diagnosis, specifically in relation to the applicant’s left shoulder.
On 23 May 2022, Dr Berry recorded a reported history which included discomfort in the applicant’s shoulders over a period of time in addition to back pain when she worked for the respondent. Dr Berry’s was unable to conduct a complete examination of the applicant’s shoulders due to recent cardiac surgery.
On 22 June 2016, Dr Panjratan noted that the applicant reported a history of low back pain. Dr Panjratan advised the applicant to “stick to the problems that have been accepted”. Dr Panjratan did not record a history of shoulder pain. However, on examination he noted that the applicant had pain all around the cervical spine going towards the shoulders. He particularly noted right-sided shoulder pain. He did not specifically note any left-sided shoulder pain.
On 16 August 2022, Dr Breit noted a history of injury, which included pain in the applicant’s shoulders and arms which she tolerated because it was part of her job. Dr Breit stated that the applicant reported present complaints which included pain at the base of the neck radiating into the trapezium in the shoulders although he did not specifically note left shoulder pain. Dr Breit opined that there is a very significant degree of maximisation. Dr Breit did not accept any work-related shoulder injury.
Whilst there is evidence that the applicant has suffered pain in her shoulders bilaterally and specifically in her left shoulder, there is no radiology which evidences any particular condition or injury in respect of the left shoulder. Further, there is no evidence of any particular diagnosis, injury or condition in relation to the left shoulder.
I consider that it is unclear on the evidence, what if any, injury or condition the applicant sustained in relation to her left shoulder and what was the cause.
Having regard to the evidence as a whole, I am unable to be satisfied that the applicant has discharged her onus to establish, on the balance of probabilities, that she sustained left shoulder injury in the course of her employment to which her employment was a substantial contributing factor or a left shoulder consequential condition.
On that basis, I find accordingly.
Right elbow
The applicant’s statement’s describes continuing pain in her arms. Whilst the applicant’s statement’s stated that she experienced back pain during her employment with the respondent, it did not specifically refer to arm or elbow pain during her employment.
On 25 March 2022, Dr Guirgis recorded that, over the last few years, the applicant had altered the way in which she used her arms in her daily living activities and this had resulted in right elbow pain, right forearm fatigue and pain. On examination, Dr Guirgis noted that there was tenderness over the soft tissue attachments to the external epicondyle of the right humerus with normal range of movements and provocation tests were positive. Dr Guirgis diagnosed consequential epicondylitis syndrome due to the altered mechanics of the applicant’s upper limb. Dr Guirgis opined that the applicant’s employment was a substantial contributing factor to the injury.
On 23 May 2022, Dr Berry noted that the applicant reported ongoing pain going down her right arm.
On 16 August 2022, Dr Breit noted a history of injury, which included pain and a sensation of pins and needles in the applicant’s arms, which she tolerated because it was part of her job. Dr Breit also recorded that the applicant sustained a right elbow fracture as a child. Dr Breit noted that the applicant reported ongoing pain in her arms and occasional right elbow pain. On examination, Dr Breit opined that there is a very significant degree of maximisation. Dr Breit did not accept that the applicant injured her right elbow arising out of or in the course of her employment with the respondent. Dr Breit did not accept that the applicant’s alleged injuries could result from a “minor event to the back”. He opined that the applicant’s presentation was inconsistent with the claimed mechanism of injury and stated that there was nothing to indicate any work-related injury to the upper right extremity, particularly in the context of her childhood history of right elbow injury and surgery. He also noted that the applicant displayed a full range of elbow movement with no tenderness or evidence of epicondylitis.
I note that the applicant had right elbow injury and surgery as a child. However, there is no evidence that the applicant had any related ongoing condition. There is no evidence that the applicant experienced any ongoing or related right elbow pain, symptoms or limitations prior to her alleged work injury.
Having regard to the evidence as a whole, I prefer and accept Dr Guirgis’ diagnosis of consequential epicondylitis syndrome and his opinion that it was a consequential condition caused by the due to the altered mechanics of the applicant’s upper limb because of her accepted injuries and the right shoulder injury. I consider that is a real and likely cause of the applicant’s right elbow condition, having regard to the considerable pain and limitations that she has experienced over an extended period of time.
On that basis, I find that the applicant sustained a right elbow consequential condition.
Left elbow
There is limited evidence specifically in relation to left elbow injury or consequential condition.
The applicant’s statement’s describes continuing pain in her arms. Whilst the applicant’s statement’s stated that she experienced back pain during her employment with the respondent, it did not specifically refer to arm or elbow pain during her employment.
On 25 March 2022, Dr Guirgis recorded that, over the last few years, the applicant had altered the way in which she used her arms in her daily living activities. Dr Guirgis did not record any pain or symptoms, and nor did he make any diagnosis, specifically in relation to the left elbow.
On 16 August 2022, Dr Breit noted a history of injury, which included pain and a sensation of pins and needles in the applicant’s arms, which she tolerated because it was part of her job. Dr Breit noted that the applicant reported ongoing pain in her arms and occasional right elbow pain. He did not specifically refer to the left arm or left elbow. On examination, Dr Breit opined that there is a very significant degree of maximisation. Dr Breit did not accept any work-related arm injury although he did not specifically refer to the left elbow.
Whilst there is evidence that the applicant has suffered pain in arms, there is no radiology which evidences any particular condition or injury in respect of the left elbow. Further, there is no evidence of any particular diagnosis, injury or condition in relation to the left elbow.
I consider that it is unclear on the evidence, what if any, injury or condition the applicant sustained in relation to her left elbow and what was the cause.
Having regard to the evidence as a whole, I am unable to be satisfied that the applicant has discharged her onus to establish, on the balance of probabilities, that she sustained left elbow injury in the course of her employment to which her employment was a substantial contributing factor or a left elbow consequential condition.
On that basis, I find accordingly.
Right and left wrists
The applicant’s statement’s describes continuing pain in her arms. Whilst the applicant’s statement’s stated that she experienced back pain during her employment with the respondent, it did not specifically refer to wrist pain during her employment.
Dr Guirgis recorded (on 25 March 2022) that the applicant had developed signs of right and left carpal tunnel syndrome in late 2005 for which she underwent surgical release of the median nerve in the carpal tunnels in July 2008.
The first record of the applicant experiencing bilateral wrist symptoms noted by Dr Oreb is on 4 March 2015, when Dr Oreb noted that over the past six years the applicant continued to complain of bilateral carpel tunnel symptoms, in addition to other symptoms. On 23 October 2016, Dr Oreb recorded that the applicant experienced weak wrist and grip with ongoing mild tingling and numbness despite carpal tunnel decompression surgeries.
On 25 March 2022, Dr Guirgis recorded that the applicant continued to experience ongoing painful stiffness of her wrists and weakness of her grip strength in both hands and mild tingling and numbness in her hands and fingers. On examination, he noted that in addition to scarring from the surgeries, the applicant still had demonstrable sensory blunting in the median nerve territory in the right and left hand and there was Grade V minus in the median nerve innervated thenar muscles in both hands. He diagnosed residual median neuropathy in the right and left carpal tunnels, which he considered to be the consequential effects of a double crush syndrome, being augmentation of the stimuli generated at the injured cervical spine level of nerve roots proximally in the neck on the subclinical neuropathic status of the decompressed median nerves distally in the carpal tunnels since 2008. Dr Guirgis opined that the applicant’s employment was a substantial contributing factor to those injuries.
On 23 May 2022, Dr Berry recorded a reported history which included continuing bilateral carpel tunnel syndrome after she ceased work with the respondent and was working as a school crossing guard. He noted scarring from surgery.
On 16 August 2022, Dr Breit noted a history of injury, which included pain in the applicant’s arms and a feeling of pins and needles in her arms. Dr Breit stated that the applicant reported present complaints which included a feeling of pins and needles involving all of the digits of both hands. On examination, Dr Breit opined that there is a very significant degree of maximisation. Dr Breit did not accept that the applicant sustained carpal tunnel syndrome, arising out of or in the course of her employment. Dr Breit did not accept that the applicant’s alleged injuries could result from a “minor event to the back”. He opined that the applicant’s presentation was inconsistent with the claimed mechanism of injury and stated that there was nothing to indicate any work-related injury to the upper right extremity.
The evidence is consistent that the applicant has sustained bilateral carpal tunnel syndrome which has necessitated surgical treatment.
Dr Berit’s opinion that the applicant’s bilateral carpal tunnel syndrome was not work injury or consequential condition is based on his view that such injuries were not consistent with the claimed mechanism and he did not believe they could result from a “minor event to the back”. I consider that Dr Breit did not give real weight to the potential causal impact of the applicant’s accepted cervical spine injury. Dr Breit did not detail any consideration or reasoning in relation to the applicant’s bilateral carpal tunnel syndrome specifically having regard to the real potential impact of the accepted cervical spine injury in the context of the double crush syndrome described by Dr Guirgis.
I consider that Dr Guirgis’ explanation of the mechanism of injury of the bilateral carpal tunnel syndrome by way of a double crush syndrome caused by the applicant’s accepted cervical spine injury was a logical and persuasive explanation. I consider that is consistent with the applicant’s accepted cervical spine injury and the evidence of the significant neck symptomatology sustained by the applicant.
Considering the evidence as a whole, I prefer and accept the evidence of Dr Guirgis in relation to the cause of the applicant’s bilateral carpal tunnel syndrome.
On that basis, I find that the applicant sustained residual median neuropathy in the right and left carpal tunnels, which was the consequential effects of a double crush syndrome, generated by the applicant’s accepted cervical injury.
Accordingly, I find that the applicant sustained left wrist and right wrist consequential conditions.
Digestive tract
A colonoscopy, reported by Dr Daskalopoulos on 10 June 2014,[33] showed normal colon except for melanosis coli.
[33] Response, page 50.
An upper endoscopy and colonoscopy, reported by Dr Borody on 17 July 2017,[34] showed normal bowel and normal oesophagus with oesophago-gastric junction slightly irregular but no extensive erosions were seen.
[34] Response, page 52.
A gastroscopy and colonoscopy reported by Dr Simring on 23 July 2021,[35] showed normal bowel apart from small haemorrhoids and several small-mouthed diverticula, normal oesophagus, normal duodenum and mild flat erosive gastritis involving the upper and lower stomach. Dr Simring stated that constipation and haemorrhoids were worsened by opiates, which should be minimised.
[35] Application, pages 90-91. Response, page 56.
Histopathology and microbiology, reported by Dr Parastoo Irandoost to Dr Simring on 23 July 2021,[36] showed mild chronic gastritis but not significant abnormality of the small bowel.
[36] Application, pages 92-93.
A gastroscopy and colonoscopy, reported by Dr Simring on 31 August 2021,[37] showed mild erosive gastritis, mild patchy chronic gastric inflammation, several diverticula in the sigmoid colon, melanosis coli and small internal haemorrhoids. Dr Simring stated that dyspeptic symptoms were likely related to NSAID-induced gastritis. He recommended that the applicant minimise the use of NSAIDs if possible. He stated that constipation was likely related to opiates, which should also be minimised. He stated that the applicant should also reduce the use of stimulant laxatives.
[37] Application, page 94.
On 23 May 2022, Dr Berry recorded a reported history which included epigastric pain and reflux and constipation. On examination, Dr Berry noted epigastric pain. Dr Berry noted the applicant’s medication intake, particularly Endone, Palexia and Mobic which were required by her work injuries with the respondent. Dr Berry opined that the applicant’s employment was a substantially contributing factor to her gastrointestinal condition. Dr Berry assessed 2% WPI in respect of the upper digestive tract.
On 20 July 2022, Dr Sethi recorded a history that the applicant, from two years after the accepted work injuries, the applicant had experienced gastrointestinal symptoms which included reflux, constipation and rectal bleeding. Dr Sethi stated that the applicant’s gastrointestinal symptoms of reflux, bloating, distension, gas, cramping abdominal pain are persisting. He noted that in July 2021, gastroscopy/colonoscopy showed mild gastritis and mild diverticular. Dr Sethi diagnosed gastro-oesophageal reflux disease and irritable bowel syndrome. He opined that the applicant’s gastrointestinal condition was not causally related to the applicant’s employment, work injury and medications that she subsequently received. Dr Sethi’s opinion was based on the fact that the applicant’s symptoms which did not commence until two years after her accepted work injury, they commonly affected the general population and were likely contributed to by her mild obesity. Dr Sethi assessed 0% WPI in relation to the upper and lower gastrointestinal systems.
There is consistent evidence from the applicant and her treating practitioners, and the respondent does not dispute, that she has been required to consistently take various medication since 2005 to manage pain caused by her accepted work injuries. This has included NSAIDs, Endone, Palexia and Mobic. There is no dispute, and I accept the evidence of Dr Simring and Dr Berry, that such medication can cause relevant gastrointestinal symptoms and gastritis.
The earliest reported gastrointestinal symptoms occurred two years after the accepted work injuries. In 2021, investigations showed evidence of a significant gastrointestinal condition.
I do not consider that the considerable delay between the onset of gastrointestinal symptoms and the accepted work injuries excludes the possibility a consequential gastrointestinal condition. It seems to me to be logical that the cumulative effect of the medication would increase and be more significant and apparent progressively over time.
Considering the evidence as a whole, I do not accept Dr Sethi’s evidence that that applicant’s gastrointestinal condition was unrelated to his work injury.
I prefer and accept the evidence of Dr Simring and Dr Berry. I consider that their evidence provides an explanation of a real and likely cause of the applicant’s dyspeptic symptoms. I am satisfied that the medication that the applicant was required to take because of the accepted work injuries had a real and significant causal effect on the applicant’s gastrointestinal system. I consider that a real and likely cause of the applicant’s dyspeptic symptoms were gastritis which was induced by the medication that the applicant was required to take.
On that basis, I find that the applicant sustained gastritis which was induced by the medication that the applicant was required to take because of the accepted work injuries.
Accordingly, I find that the applicant sustained a gastrointestinal consequential condition.
Anus
On 23 May 2022, Dr Berry recorded a reported history which included constipation. On examination, Dr Berry noted small haemorrhoids. Dr Berry diagnosed Grade 1 haemorrhoids, which he opined was caused by the applicant’s medication intake, particularly Endone, Palexia and Mobic which were required by her work injuries with the respondent. Dr Berry opined that the applicant’s employment was a substantially contributing factor to her condition. Dr Berry assessed 1% WPI in respect of the anus.
On 20 July 2022, Dr Sethi recorded a history that the applicant from two years after the accepted work injuries, the applicant had experienced constipation and rectal bleeding. Dr Sethi stated that the applicant’s constipation and rectal bleeding are persisting. He noted that in July 2021, gastroscopy/colonoscopy showed small haemorrhoids. Dr Sethi diagnosed haemorrhoids. Dr Sethi opined that the applicant’s haemorrhoids was not causally related to the applicant’s employment, work injury and medications that she subsequently received. Dr Sethi’s opinion was based on the fact that the applicant’s symptoms which did not commence until two years after her accepted work injury, they commonly affected the general population and were likely contributed to by the applicant’s mild obesity. On that basis, Dr Sethi assessed 0% WPI in relation to the anus.
As noted above, there is consistent evidence from the applicant and her treating practitioners, and the respondent does not dispute, that she has been required to consistently take various medication since 2005 to manage pain caused by her accepted work injuries, including Endone, Palexia and Mobic. There is no dispute, and I accept the evidence of Dr Berry, that such medication can cause relevant gastrointestinal symptoms.
Again, I do not consider that the considerable delay between the onset of gastrointestinal symptoms and the accepted work injuries excludes the possibility a consequential haemorrhoid condition. Again, it seems to me to be logical that the cumulative effect of the medication would increase and be more significant and apparent progressively over time.
Considering the evidence as a whole, I do not accept Dr Sethi’s evidence that that applicant’s haemorrhoid condition was unrelated to the applicant’s work injury.
I prefer and accept the evidence of Dr Berry. I consider that his evidence provides an explanation of a real and likely cause of the applicant’s constipation and haemorrhoids. Having regard to the evidence as a whole, I am satisfied that the medication that the applicant was required to take because of the accepted work injuries had a real and significant causal effect on development of the applicant’s constipation and haemorrhoids.
On that basis, I find that the applicant sustained haemorrhoids caused by the medication that the applicant was required to take because of the accepted work injuries.
On that basis, I find that the applicant sustained an anal disease consequential condition.
Referral to Medical Assessor
Having made these findings, it is appropriate for me to remit the matter to the President to be referred to a Medical Assessor for an assessment of WPI in respect of injuries and consequential conditions, with a deemed date of injury of 31 March 2006.
All of the materials admitted in the proceedings will be included in the referral.
SUMMARY
Accordingly, I make the following findings:
(a) the applicant sustained an injury to her right shoulder in the course of her employment with the respondent to which the applicant’s employment was a substantial contributing factor pursuant to s 4(a) and 9A of the 1987 Act;
(b) the applicant sustained a right shoulder consequential condition;
(c) the applicant sustained a right elbow consequential condition;
(d) the applicant sustained a right wrist consequential condition;
(e) the applicant sustained a left wrist consequential condition;
(f) the applicant sustained a gastrointestinal consequential condition;
(g) the applicant sustained anal disease consequential condition;
(h) the applicant not has discharged the onus to establish, on the balance of probabilities, that she sustained left shoulder injury in the course of her employment to which her employment was a substantial contributing factor or a left shoulder consequential condition, and
(i) the applicant not has discharged the onus to establish, on the balance of probabilities, that she sustained left elbow injury in the course of her employment to which her employment was a substantial contributing factor or a left elbow consequential condition.
Accordingly, I order as follows:
(a) Award for the respondent in respect of:
(i)left shoulder injury and left shoulder consequential condition, and
(ii)left elbow injury and left elbow consequential condition.
(b) The matter is remitted to the President to be referred to a Medical Assessor for an assessment as follows:
Date of injury: 31 March 2006 (deemed)
Body parts: Right upper extremity (shoulder, elbow, wrist)
Left upper extremity (wrist)
Upper digestive tract
Anal disease
TEMSKI/scarring
Method: Whole Person Impairment
(c) The materials to be referred to the Medical Assessor are to include:
(i)Application for Assessment by a Medical Assessor and attachments;
(ii)Response to Application for Assessment by a Medical Assessor and attachments, and
(iii)Application to Admit Late Documents by worker dated 30 March 2023 with attachments.
0
5
7