Stojicic v General Mills Manufacturing Australia Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Stojicic v General Mills Manufacturing Australia Pty Limited [2021] NSWPIC 151
APPLICANT:	Ljiljana Stojicic
RESPONDENT:	General Mills Manufacturing Australia Pty Limited
MEMBER:	Rachel Homan
DATE OF DECISION:	26 May 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for lump sum compensation under section 66 of the 1987 Act; accepted injuries to left upper limb; whether consequential right shoulder and elbow conditions; gaps in treating evidence; lack of clarity and explanation in medicolegal opinion relied on by the applicant; Held- consequential conditions to right shoulder and elbow accepted; matter remitted to President for referral to a Medical Assessor to assess the degree of permanent impairment.
DETERMINATIONS MADE:	1. The applicant sustained consequential conditions affecting her right shoulder and right elbow as a result of the injury to her left upper extremity.
ORDERS MADE:	1. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: Nature and conditions of employment from 2006 to 8 August 2016 (deemed date 14 September 2015) Body parts: Left upper extremity (wrist, elbow, nerves) Right upper extremity (shoulder, elbow) Skin (scarring) Digestive system (upper gastrointestinal tract, lower gastrointestinal tract, anus) Method: Whole Person Impairment 2. The materials to be referred to the Medical Assessor are to include the Application to Resolve a Dispute and all attachments, the Reply and all attachments and the documents attached to the Application to Admit Late Documents lodged by the respondent on 14 April 2021.

STATEMENT OF REASONS

BACKGROUND

Ms Ljiljana Stojicic (the applicant) was employed as a process worker by General Mills Manufacturing Australia Pty Limited (the respondent). The applicant claims that as a result of the nature and conditions of her employment with the respondent she sustained an injury to her left upper extremity. As a result of that injury, the applicant also claims to have suffered consequential conditions affecting her right upper extremity, digestive system and skin.
On 6 April 2020, the applicant made a claim for lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in reliance upon assessments of whole person impairment (WPI) by orthopaedic surgeon, Dr Drew Dixon, and gastroenterologist,
Dr Anthony Greenberg.
In a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on 7 July 2020, the respondent declined to pay the amount of lump sum compensation claimed and disputed an alleged consequential right shoulder condition. That decision was maintained in a further notice dated 4 January 2021.
The present proceedings were commenced by an Application to Resolve a Dispute (ARD) lodged in the former Workers Compensation Commission on 4 February 2021. The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.
The applicant’s seeks lump sum compensation in accordance with Dr Dixon’s and
Dr Greenberg’s assessments.

PROCEDURE BEFORE THE COMMISSION

The parties appeared for conciliation conference and arbitration hearing on 19 April 2021 by telephone. The applicant was represented by Mr Greg Young of counsel and assisted by an interpreter in the Croatian and English languages. The respondent was represented by
Mr Fraser Doak of counsel, instructed by Mr Mark Robinson. A representative from the respondent’s insurer was also present.
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.
At the commencement of the arbitration hearing, leave was granted to the respondent to rely on a dispute as to whether the applicant sustained a consequential right elbow condition pursuant to s 289A(4) of the 1998 Act.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:

(a)    whether the applicant sustained a consequential condition affecting her right shoulder as a result of the injury to her left upper extremity;
(b)    whether the applicant sustained a consequential condition affecting her right elbow as a result of the injury to her left upper extremity, and
(c)    the degree of permanent impairment resulting from the injury.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;
(b) Reply and attached documents, and

(c) documents attached to an Application to Admit Late Documents lodged by the respondent on 14 April 2021.

Neither party applied to adduce oral evidence or cross-examine any witness.

Applicant’s evidence

The applicant’s evidence is set out in a written statement made by her on 22 July 2020.
The applicant said that she commenced employment with the respondent initially as a casual in September 2006. The applicant commenced permanent full-time employment in February 2007 as a lab technician. In 2012, the applicant’s position became redundant and the applicant accepted a new position as a process worker.
The applicant’s duties as a process worker included collating taco shells, shaping cardboard into U form to be placed inside the taco shells, filling machines with cardboard packaging and emptying boxes of sachets of sauce and seasoning into a hopper. The applicant was also required to empty rubbish in wheelie bins into a larger bin. This involved the applicant and another worker lifting up the bin in order to empty it. On average, this would be done two to four times per day. The applicant also performed cleaning work.
The applicant expressed the belief that her injury was due to the repetitive and heavy nature of her work, particularly after commencing as a process worker in about 2012. The applicant initially had symptoms in her left forearm and left wrist in early 2014, which the applicant reported to her employer. The applicant was sent to the company doctor at Rooty Hill Medical Centre who advised her to use Voltaren cream and tablets.
The applicant continued to work but her pain continued. An ultrasound was arranged, following which, the applicant had a cortisone injection. The applicant returned to light duties for one week and then to normal duties. As the applicant’s pain and symptoms continued to worsen she consulted her own general practitioner, Dr Mao, who referred her to Dr Gumley. After undergoing an MRI scan of her left wrist, Dr Gumley advised the applicant that she had carpal tunnel and trigger finger as well as tennis elbow on the left.

The applicant underwent surgery to her left wrist on 9 August 2016. A second operation was performed on 8 December 2016 to shorten the bone in the left forearm and place a plate and screws. The applicant had a third operation on 14 July 2017 to release a nerve in the left elbow.
The applicant was referred to a pain specialist, Dr Boesel, for pain management. Dr Boesel performed further surgery to the left elbow on 19 July 2018. Dr Boesel performed a second operation on 6 December 2018 to insert a cervical epidural stimulator to help alleviate the pain in the left wrist and elbow.

The applicant commenced having symptoms of pain in her right elbow from about 2017, which she attributed to overuse of that elbow due to the injury to her left wrist and elbow. The applicant was diagnosed with tennis elbow on the right and had a cortisone injection done by her general practitioner, Dr Ye.
The applicant then also had symptoms in her right shoulder due to using that shoulder more as a result of the injury to her left wrist and elbow. An ultrasound of the right shoulder showed a tear and bursitis. The applicant was referred to Dr Lieu in 2019. Dr Lieu recommended a cortisone injection to the right shoulder which did not help. Dr Lieu recommended surgery to the shoulder but the applicant declined as she had had enough of surgeries.
The applicant continued to work for the respondent until 8 August 2016. The applicant attempted to return to work in 2018 but after four or five weeks was informed that there was no suitable work available for her.

Relevant treating medical evidence

The applicant was seen as a new patient by Dr Tillman Boesel, pain specialist, on 23 October 2017. Dr Boesel recorded a history as follows:
“●      She developed an insidious onset of epicondylitis of the L) elbow in 2014; this was treated with corticosteroid injections x3, which were of transient assistance only
·        She returned to work after this, but later developed L) wrist pain; she was diagnosed as having carpal tunnel syndrome, cubital tunnel syndrome and L) TFCC tear
·        In total, there have been 3 operations: Carpal tunnel decompression, trigger thumb release, TFC debridement - Ulnar shortening procedure - Ulnar nerve decompression at the elbow (most recent - 3 months ago)
·        Overall, she feels that she has gradually deteriorated over time, but there has been no discrete worsening after any individual procedure
·        Current pain complaint:
oConstant squeezing pain inside L) ulnar aspect of wrist joint
oPulling sensation on the dorsum of the L) hand (lateral aspect)
oSensory impairment in the hypothenar region and ring/ little fingers of the L)
ohand
oBurning sensation of hypothenar region, cold sensation of the ulnar forearm to
othe elbow
oShe has hypersensitivity to touch around the ulnar nerve release scar
oCutting fingernails on L) is extremely poorly tolerated
·        In association she's reporting:
oSwelling of the L) hand and fingers
oIntermittent red discoloration of the hypothenar region on the L)
oMild stiffness of the fingers on the L)
oShe denies trophic changes to the hair/ skin/nails in the L) UL
oShe does report weakness and some clumsiness but no tremor or dystonia of the L) hand.”
Dr Boesel diagnosed mixed pain disorder, neuropathic pain with sensitisation affecting the ulnar nerve distribution and mild CRPS features. Dr Boesel sought approval for a multidisciplinary pain management program.
On 21 May 2018, Dr Boesel requested approval for the applicant to undergo pulsed radiofrequency neurotomies to the left ulnar nerve under ultrasound guidance. The procedure was performed on 19 July 2018.
On 3 August 2018, Dr Boesel reported that the applicant had undergone pulsed radiofrequency neurotomies to the left ulnar nerve under ultrasound guidance two weeks earlier but without reported benefit.
The report of an ultrasound of the right shoulder performed at the request of general practitioner, Dr Xin Ye, on 11 September 2018 indicated that scan showed a partial tear supraspinatus tendon, subacromial bursal thickening with minimal bursal impingement and AC ligament sprain.
On 6 November 2018, physiotherapist, Dr Cos Beadle reported to Dr Ye:
“Mrs Liljana Stojicic still has pain and functional limitations with her (R) shoulder. Physiotherapy and strength exercises has not shown any benefit. In my opinion she may need surgery or cortisone injections to aid her recovery.”
On 14 November 2018, Dr Ye referred the applicant to orthopaedic surgeon, Dr David Lieu, for right shoulder pain. The applicant’s chronic issues were said to have not responded to physiotherapy and NSAIDS.
An x-ray of the right shoulder was performed on 7 December 2018 at the request of Dr Lieu. On the same date, Dr Lieu reported:
“Unfortunately she has developed chronic pain in her left arm following her previous problems. She has had a cubital tunnel release, ulnar shortening osteotomy, trigger finger release, and a wrist arthroscopy.
She has been compensating with her right arm following this problem. Over the past 2 months she has developed worsening pain around the superolateral aspect of her shoulder.
There is some rest and night pain, and pain with all activity especially with any overhead Activity. There is no significant radiation proximally or distally. There is no clicking or catching or locking and no distal numbness or weakness. The pain interferes with all of her activities of daily living and her son has moved in to help with her dally activities.”
On 13 December 2018 the applicant underwent ultrasound guided steroid injection of the right AC joint. A second injection was performed on 28 December 2018.
On 11 April 2019, Dr Ye recorded in a clinical note that the applicant’s right shoulder pain was not getting any better. The applicant was referred back to Dr Lieu.
Following a review on 26 April 2019, Dr Lieu reported:
“Her second injection into her subacromial space apparently had more effect than her first into the acromioclavicular joint. Overall her shoulder is improved. Clinically she no longer has any impingement or irritation with a lobe's test. There is still more mild tenderness over her acromioclavicular joint. She would not benefit from any surgery and once again does not want any surgery regardless. She has been given a form for a further acromioclavicular joint injection if she would like to trial this.
I note she is also experiencing some right tennis elbow, she has been given a referral to physiotherapy for further nonoperative management.”
On the same date, Dr Lieu made a referral to a physiotherapist for treatment of right tennis elbow.
On 29 May 2019, Dr Ye recorded:
“R) shoulder rotator cuff tear and tennis elbow follow up. S/B hand surgeon.
had 1 cortisone lnj. for her shoulder. slightly getting better
Might need physiotherapy for her elbow.”
On 13 June 2019, the applicant underwent ultrasound guided injection to the right AC joint.
On 12 August 2019, Dr Boesel requested approval for neurostimulator and therapy.
Dr Boesel reported that the applicant’s nerve injury pain had plateaued and continued to cause significant levels of functional interference.
On 7 November 2019, Dr Boesel reported to neurosurgeon, Dr Antonio Di Ieva,
“Ljljana Stojicic has CRPS of the L) arm following multiple operations. She's had a successful neurostimulatlon trial recently, and should go ahead with her therapeutic implant in early December. The Insurer has approved the procedure.”
An operation report dated 6 December 2019 indicates that the applicant underwent cervical epidural stimulator insertion.

Dr Dixon

The applicant relies on medicolegal reports prepared by orthopaedic surgeon, Dr Drew Dixon, dated 11 July 2018 and 19 March 2020.
In his first report, Dr Dixon took a history of the applicant developing carpal tunnel syndrome and ulnar neuritis in her left forearm as well as pain in her left wrist during the course of her repetitive duties as a process worker. The applicant underwent nerve conduction studies and had left carpal tunnel decompression performed as well as arthroscopy of her left wrist. At the same time the applicant underwent a release of trigger thumb on the left.

The applicant subsequently underwent left ulnar shortening osteotomy with plate fixation and also rhizolysis and anterior transposition of the ulnar nerve at her left elbow. The applicant had residual ulnar neuritis and neuro modulation had been arranged for pain relief.
Dr Dixon took a history that, while favouring the left forearm, the applicant developed tennis elbow on the right and had undergone a cortisone injection for lateral epicondylitis which had improved her condition.
With regard to her activities of daily living, Dr Dixon noted:
“She does have difficulty with heavy cleaning, doing heavy grocery shopping and lifting heavy laundry and with her husband's help, is able to do some of the lighter household chores but not the garden. She has stopped driving since December 2017. She does not play sport and does not do crafts, sewing knitting or embroidery. She has difficulty playing with her two grandsons aged almost 3 years and 7 months old. She and her husband live in a one level house but she requires assistance with bi-manual tasks such as lifting of heavy laundry and moving furniture. Fortunately, she is right handed.”
The applicant reported residual pain and stiffness in her left wrist localised to the distal ulnar carpal joint and down the distal shaft of the left ulnar with some weakness in her left hand. There was marked sensory change in the ulnar one and a half digits of the hand. The applicant reported some tenderness at the left elbow. The applicant reported some improvement in her lateral epicondylitis of the right elbow following cortisone injection. The applicant did not report any shoulder pain or stiffness in her neck.
Dr Dixon noted:
“Her left wrist and elbow pain can disturb her sleep and preclude her from doing heavy lifting with her left arm and she tends to do all tasks with her right hand but does have some difficulty, for example, cooking cakes and playing with her grandsons and doing the garden.”
After reviewing the available investigations, Dr Dixon diagnosed:

“In summary this claimant, due to the nature and conditions of her employment doing repetitive tasks of process work, developed carpal tunnel symptoms more marked on the left requiring carpal tunnel decompression with triggering of the left thumb requiring surgical release and ulnar- neuritis at her left elbow requiring anterior transposition. She developed pain in the distal ulnar carpal joint and required ulnar shortening osteotomy with internal fixation and had bilateral lateral epicondylitis which improved with cortisone injections. She has residual ulnar neuritis with severe sensory loss of the ulnar one and a half digits of her left hand with intrinsic power grade 4 out of 5 of her left hand with post traumatic stiffness of the left wrist.”

The injury was said to be causally related to the nature and conditions of the applicant’s employment for the respondent.
Dr Dixon made an assessment of 15% WPI of the left upper extremity, skin and digestive system.
In his report of 19 March 2020, Dr Dixon also took a history of right shoulder symptoms:
“She has also developed pain in the right shoulder with stiffness on elevation and was referred by her general practitioner for an ultrasound which showed partial rotator cuff tear and subacromial bursitis. She had referral to a shoulder specialist and he has arranged for her to have an ultrasound guided AC joint cortisone injection on two occasions as well as cortisone injection to the subacromial bursa. There were performed in December 2018 and June 2019. She still has pain and stiffness of the right shoulder with pain referred to the deltoid muscle and the AC joint.”
With regard to the applicant’s activities of daily living, Dr Dixon noted that the applicant’s husband had passed away:
“The claimant is helped around the house by her daughter-in-law as she has difficulty doing heavy household cleaning, heavy grocery shopping and has great difficulty doing her garden. She is proud of her garden and misses being able to look after it properly, She has assistance from her son with household chores. She has difficulty doing meal preparation and cooking. She has not driven a motor vehicle since December 2017.
She does not play sport and is unable to do cooking which she loves and her garden, of which she is very proud, as noted above. She still has difficulty playing with her grandsons and continues to live in the one level family home but does require assistance with bimanual tasks such as lifting heavy laundry and moving furniture because of left elbow and wrist conditions and her right shoulder brachalgia.”

Summarising the applicant’s injuries and diagnoses, Dr Dixon said:
“She has developed pain and stiffness in her right shoulder with recurrent lateral epicondylitis at her right elbow while favouring her left elbow and wrist.
…
Her injuries continue to impact on her activities of daily living as noted above and while the lateral epicondylitis of her right elbow had settled since her cortisone injection, it has now recurred with tenderness of the lateral epicondyle and extensor muscle mass,”
Under the heading “Causation”, Dr Dixon said,
“The above conditions are causally related to the injuries received due to the nature and conditions of her employ at General Mills.”
Dr Dixon made an assessment with 24% WPI which included 7% WPI for the right shoulder and right elbow.

Dr Gothelf

The respondent relies on a medicolegal report prepared by orthopaedic surgeon, Dr Todd Gothelf, dated 13 May 2020.
Dr Gothelf took a history of the injury to the applicant’s left upper extremity and its subsequent treatment that was consistent with the other evidence. With regard to the right shoulder Dr Gothelf noted:
“Ms Stojicic stated that the right shoulder symptoms started around 2017. She cannot recall a specific incident but felt the right shoulder getting worse. She saw her GP and saw a specialist. She had cortisone injections and surgery was recommended but she declined surgery. She is doing her own exercises now and there is no plans for more treatment.”
Dr Gothelf said the applicant was asked about other areas of symptoms and denied any other areas of symptoms.
Dr Gothelf recorded findings on examination of the left upper extremity and right shoulder, reviewed investigations and made the following work related diagnoses:
“●      Left carpal tunnel syndrome with carpal tunnel release 9 August 2016.
·        Left wrist TFCC tear with debridement by left wrist arthroscopy 9 August 2016.
·        Left trigger thumb treated with surgical release 9 August 2016.
·        Left elbow lateral epicondylitis which has resolved.
·        Persistent Left wrist pain requiring surgical treatment with ulnar shortening osteotomy circa January 2017. The osteotomy went on to heal.
·        Left cubital tunnel syndrome treated with subcutaneous ulnar nerve transposition circa July 2017.”
Dr Gothelf also diagnosed right shoulder impingement, partial rotator cuff tear and AC joint arthritis, treated with physiotherapy and cortisone injections, which he said were not related to the injury:
“The right shoulder symptoms are on the balance of probabilities not related to the subject injury 26 May 2014. The reasons for this conclusion are as follows:
• There was no recorded injury to the right shoulder either in 2014 at the time of the subject injury or in 2017 when Ms Stojicic claimed the right shoulder symptoms began.
• Ms Stojicic has not worked since 2016 and therefore did not have significant daily demands placed upon her right shoulder.
• There is no scientific support for the concept that having symptoms in the left arm causes an increased risk of disease in the second limb.”
With regard to the last point, Dr Gothelf cited a publication titled AMA Guides to the Evaluation of Disease and Injury Causation: Second Edition[1].
[1] M Melhorn, JB Talmage, et al. AMA Guides to the Evaluation of Disease and Injury Causation: Second Edition. AMA, Chicago, Illinois, 2014.
Dr Gothelf said there was “no evidence of a right elbow injury”.
Dr Gothelf made an assessment of 8% WPI of the left upper extremity and skin.

Respondent’s submissions

The respondent submitted that there was a dispute as to whether there was consequential loss at the right shoulder and right elbow as a result of the accepted injury to the left upper extremity.
The respondent referred to the applicant’s evidence that she had worked in repetitive duties between 2006 and 2014. The applicant began to experience symptoms in her left wrist in 2014 which were treated by cortisone injection. The applicant continued to work on modified duties although the symptoms in her left upper extremity continued.

The respondent noted that the applicant claimed that symptoms on the right commenced in 2017 due to overuse. The applicant’s evidence was described as being expressed in general terms and did not include any particulars of when in 2017 or the circumstances in which the symptoms commenced.

The respondent noted that the applicant claimed that she received an injection to the right elbow by Dr Ye but there was no report in evidence from Dr Ye to confirm this. The applicant had relied on clinical records from Dr Ye but they commenced in February 2019. There was no contemporaneous evidence to corroborate the applicant’s assertion that she had right elbow symptoms starting in 2017.

The respondent referred to the report of Dr Lieu dated 7 December 2018 in which was noted that the applicant had been “compensating with her right arm” following the problems with her left arm. Dr Lieu suggested that the applicant had been experiencing problems for the last two months. It was noted that Dr Lieu gave no opinion or made further comment on causation and had merely recorded a history of overcompensation reported by the applicant.
The respondent submitted that this very brief description of a relationship between the right arm and the left did not address the type of activities the applicant was performing with her right arm, the frequency or manner in which she was performing such activities. The expression, “overcompensating” was meaningless without information as to the activities and ways in which those activities were carried out. The respondent submitted that there was no opinion from Dr Lieu or the applicant’s general practitioners on causation.
The respondent noted that the applicant’s case relied on the reports of Dr Dixon. Dr Dixon referred to the applicant favouring the injured arm and developing tennis elbow on the right. The respondent described these as conclusions without basis. No explanation was provided. The description of the applicant’s activities of daily living suggested she was only doing light chores rather than any heavy lifting.
At the time of the report prepared by Dr Dixon in July 2018, the applicant did not report right shoulder pain. Dr Lieu’s report suggested that the applicant had developed shoulder symptoms around October 2018. There was no evidence as to what had occurred around October 2018. It was unclear whether the rotator cuff tear was degenerative. The respondent submitted that the Commission could only inform itself by medical evidence of which there was none.

The respondent noted that Dr Dixon at the time of his 2018 report recorded that the applicant’s right epicondylitis had improved. There was no history of symptoms at the right shoulder. Dr Dixon’s opinion changed by the time of his 2020 report. On this occasion,
Dr Dixon gave an opinion that the symptoms on the right were caused by the nature and conditions of the applicant’s employment. The applicant’s claim, however, was that she had suffered a consequential condition on the right. Dr Dixon did not identify the conditions on the right as consequential to the left upper extremity injury.
In summary, the respondent submitted that the applicant’s case was characterised by an absence of detail in the applicant’s written evidence and a confounding opinion of Dr Dixon that the symptoms in the right were caused by the nature and conditions of employment.
Weighing against the applicant’s evidence was the report from Dr Gothelf. Dr Gothelf took a history of the applicant self-limiting her activities to protect her injured left arm.
The respondent submitted that there was no contemporaneous evidence from 2016 to 2018 to support the claimed consequential conditions. There was insufficient evidence to form a view in favour of the applicant in the absence of evidence as to the onset of symptoms and the activities involved. The medicolegal reports from Dr Dixon were inconsistent in a number of key aspects, including the attribution of symptoms to the nature and conditions of employment. The applicant’s case fell short of discharging the relevant onus.

Applicant’s submissions

The applicant submitted that overcompensation with the right limb occurred in the context of severe left sided problems. The applicant underwent numerous surgeries to the left upper limb including an osteotomy and surgery to release a nerve. The applicant had undergone insertion of a cervical epidural stimulator. Dr Boesel had diagnosed the applicant as having complex regional pain syndrome. In effect, the evidence established that the applicant had no use of her left upper limb.
The applicant submitted that Dr Gothelf had directed himself to the question of whether the applicant had sustained an injury to the right upper extremity which was not what the applicant claimed. The correct question was whether, as a matter of common sense, the symptoms in the applicant’s right upper extremity resulted from the injury to her left upper extremity.
The applicant noted the respondent’s submissions as to the need for evidence as to the activities, frequency and manner in which activities were performed to explain the overcompensation. The applicant submitted that this was found in the evidence of Dr Dixon, Dr Ye and the applicant’s written statement. The applicant gave evidence that she had difficulty performing domestic activities due to her pain. This did not mean that the applicant performed no domestic activities.
The applicant noted that Dr Dixon reported that the applicant developed tennis elbow on the right while favouring her left forearm. The symptoms were said to have improved with injection. Although there was no report of an ultrasound of the right elbow before the Commission it was before Dr Dixon. Dr Dixon’s report squarely correlated with the applicant’s evidence.
The applicant submitted that Dr Dixon did not make an assessment of the right elbow at the time of his 2018 report because at the time it had settled with cortisone injection. That injection appeared to have worn off by the time of the 2020 report. The fact that Dr Dixon did not assess the right elbow in 2018 was not fatal to the applicant’s claim. The applicant continued to use her right arm because she was unable to use her left arm.
Dr Dixon noted that the applicant was assisted by family members to perform domestic activities but did not suggest that she did not perform any activities on her own. Dr Dixon recorded difficulty with overhead activities, laundry and carrying heavy groceries.
The applicant referred to the treating evidence referred to above regarding the investigation and treatment of her right elbow and shoulder symptoms.
The applicant said Dr Gothelf had misconceived her case. The explanation given by
Dr Gothelf made clear that he was commenting on a primary or direct injury. The applicant did not claim to have sustained an injury to the right shoulder in 2014 or 2017, nor did she claim her shoulder symptoms began in 2017. The applicant claimed a condition developing over time. The shoulder was first investigated in 2018. Although elbow symptoms were reported earlier, Dr Gothelf’s report was silent as to the elbow.
The fact that the applicant stopped work in 2016 was not determinative as the applicant claimed overuse of the right limb in her activities of daily life.
Dr Gothelf’s view that there was no scientific evidence to support an increased risk of disease in the contralateral limb did not address the applicant’s claim that because of the severity of her symptoms on the left she had overused and developed a condition on the right. The applicant did not claim to have the same disease process in the contralateral limb.
The applicant noted that the alleged right elbow condition was not disputed medically by the respondent’s evidence at all.
With regard to the problems identified by the respondent with Dr Dixon’s reports, the applicant submitted, by reference to the decision in Paric v John Holland (Constructions) Pty Ltd[2], that the expert evidence did not need to be precise as long as there was a fair climate for the acceptance of that opinion.
[2] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 62 ALR 85).

Respondent’s submissions in reply

The respondent noted that Dr Gothelf had commented that there was no evidence of a right elbow injury, bearing in mind that at the time of his report there was no claim made by the applicant with respect to the right elbow.
Leaving aside Dr Gothelf’s evidence, the respondent said the applicant’s case would still fail. The applicant required the Commission to draw a conclusion about causation from inferential evidence. The respondent submitted that the question of causation was not dealt with adequately anywhere in the applicant’s evidence. Dr Dixon did not provide a reasoned opinion on causation.
The respondent submitted that it was important to differentiate between activities the applicant did with her right arm as a result of her left arm injury and those she would normally undertake with that limb. None of the experts had focused on whether the applicant was right or left arm dominant. The applicant’s case required speculation and inferences to be drawn from the evidence. There was no medical evidence to support the applicant’s case.

FINDINGS AND REASONS

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, and
(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.”

It has been accepted by the respondent that the applicant sustained an “injury” as a result of the nature and conditions of her employment with the respondent to her left upper extremity. What requires determination is whether the applicant has sustained consequential conditions affecting her right shoulder and elbow as a result of the injury.

It is not necessary for the applicant to establish that the right shoulder and elbow conditions are themselves an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah[3] observed 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.”

[3] [2009] NSWWCCPD 134.

In Bouchmouni v Bakhos Matta t/as Western Red Services[4], Roche DP commented,
“The Commission has considered and explained the difference between an ‘injury’ and a condition that has resulted from an injury in several recent decisions (Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 at [43], [45] and [50] (Moon); Superior Formwork Pty Ltd v Livaja [2009] NSWWCCPD 158 at [122]; Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 at [28]–[32] and [39]–[42] (Davis); North Coast Area Health Service v Felstead [2011] NSWWCCPD 51 at [84]; Australian Traineeship System v Turner [2012] NSWWCCPD 4 at [28] and [29] (Turner); Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 at [35]–[49] and [61]). …
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’.”
[4] [2013] NSWWCCPD 4.

A commonsense evaluation of the causal chain is required. The legal test of causation is that discussed by the Court of Appeal in Kooragang Cement Pty Ltd v Bates[5], where Kirby P said at [461] (Sheller and Powell JJA agreeing):

“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.”
[5] (1994) 10 NSWCCR 796 at [810].

His Honour said 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.”

The evidence before me establishes that the applicant suffered a series of debilitating symptoms in her left upper extremity from 2014 onwards, which despite extensive treatment, including multiple surgeries, have persisted.
When the applicant was first seen by Dr Boesel in October 2017, the symptoms included constant squeezing pain inside the left ulnar aspect of her wrist joint, sensory impairment, a pulling sensation in her left hand, swelling of the hands and fingers, stiffness of the fingers and some weakness and clumsiness.
The impact of the injury to the applicant’s left upper extremity on her activities of daily living was described by Dr Dixon in his report dated 11 July 2018. The applicant had stopped driving in December 2017 and had difficulty with heavy cleaning, heavy grocery shopping, and lifting heavy laundry. The applicant was assisted in heavy bi-manual tasks by her husband. The applicant was, however, able to perform light household chores.

Dr Dixon commented at the time that it was fortunate that the applicant was right-handed.
Dr Dixon explicitly recorded that the left wrist and elbow pain was precluding the applicant from doing heavy lifting with her left arm and that she tended to do all tasks with her right hand.
Dr Dixon said favouring the left forearm had led to lateral epicondylitis on the right treated by cortisone injection. At the time of his report, however, the injection had resulted in an improvement of that condition. Dr Dixon found no evidence of permanent impairment of the right elbow at the time of his 2018 WPI assessment. It was also noted that the applicant did not report any shoulder pain at the time of this assessment.
There is no contemporaneous treating medical evidence before the Commission with regard to right elbow symptoms appearing in 2017 or the cortisone injection referred to by Dr Dixon. Dr Dixon’s report indicates, however, that he had before him an x-ray of the right elbow performed on 14 November 2017 which showed lateral epicondylitis. Dr Dixon also referred to an x-ray of the right wrist performed on the same date. A regional bone scan and SPECT/CT scan performed on 22 December 2017 was reported to show mild lateral epicondylitis of the right elbow.
Despite those reports not being in evidence in these proceedings, the specificity with which they are identified by Dr Dixon and the consistency between Dr Dixon’s history and the applicant’s written evidence, satisfy me that the applicant did in fact report symptoms at the right elbow in late 2017. Those symptoms had, however, substantially resolved by July 2018.
The treating medical evidence before me does indicate that symptoms in the right elbow returned and were reported to Dr Lieu on 26 April 2019. The applicant was referred to a physiotherapist for treatment of right elbow epicondylitis on the same date. Symptoms of right tennis elbow and a need for physiotherapy were also recorded in a clinical note by
Dr Ye on 29 May 2019.
In the intervening period, the applicant had continued to be troubled by left arm symptoms. On 3 August 2018, Dr Boesel reported that the applicant had undergone pulsed radiofrequency neurotomies to the left ulnar nerve under ultrasound guidance but without reported benefit. On 12 August 2019, Dr Boesel requested approval for a neurostimulator on the basis that the applicant’s nerve injury pain had plateaued and continued to cause significant levels of functional interference.
Consistently with this treating medical evidence, Dr Dixon diagnosed recurrent lateral epicondylitis at the applicant’s right elbow while favouring her left elbow and wrist at the time of his 19 March 2020 report. Dr Dixon’s examination revealed tenderness of the lateral epicondyle and extensor muscle mass. Dr Dixon reported that the injuries to the left arm had continued to impact on the applicant’s activities of daily living.
It is in this context that Dr Dixon’s statement that the elbow condition was “causally related to the injuries received due to the nature and conditions of her employ at General Mills” must be viewed. There is nothing else in either the 2018 or 2020 reports to indicate that Dr Dixon took a history of, or understood there to be, an “injury” to the right elbow as a result of the nature and conditions of employment. Reading the two reports as a whole, it is sufficiently clear that Dr Dixon understood the elbow condition to be causally related to the left arm injury due to the impact of that injury on the applicant’s activities of daily living and the applicant favouring the injured limb by doing all tasks with her right hand.
Whilst there is no opinion on causation of a right elbow condition in the treating medical evidence, the view I have taken of Dr Dixon’s opinion is consistent with the treating medical evidence and the applicant’s own evidence.
Dr Gothelf did report that there was “no evidence of a right elbow injury” before him at the time of his report of 13 May 2020. It is significant, however, that he did not record any examination of the right elbow, took no history of symptoms at the right elbow and did not refer to any of the treating medical evidence relating to the right elbow. Dr Gothelf does not explain whether he specifically asked the applicant about right elbow symptoms. Whilst
Dr Gothelf’s report clearly does not support the allegation of a consequential right elbow condition, equally it does not detract from the applicant’s evidence.
Considering the evidence as a whole, whilst acknowledging that there are some gaps and a certain lack of detail and clarity in the evidence relied upon by the applicant, I feel a sense of actual persuasion that the applicant has experienced recurring symptoms of lateral epicondylitis at the right elbow as a result of favouring her injured left upper extremity. I am satisfied on the balance of probabilities that the applicant sustained a consequential condition at the right elbow as a result of the injury.
With regard to the right shoulder, symptoms first were reported in the treating medical evidence after Dr Dixon’s first report. An ultrasound of the right shoulder was performed at the request of Dr Ye on 11 September 2018. That ultrasound was reported to show pathology including a partial tear of the supraspinatus tendon, subacromial bursal thickening and AC ligament sprain. The applicant’s physiotherapist, Dr Beadle, indicated that the applicant had pain and functional limitations in her right shoulder which had not improved with physiotherapy. Dr Beadle considered the applicant may need cortisone injection or surgery to aid her recovery.
Following this, the applicant was referred to Dr Lieu. After considering an x-ray of the right shoulder performed on 7 December 2018, Dr Lieu noted the chronic pain in the applicant’s left arm, including the multiple surgeries undertaken. Dr Lieu reported that the applicant had been compensating for these problems with her right arm and over the past two months had developed worsening pain around the superior lateral aspect of her shoulder.
The respondent has described this report from Dr Lieu as a record of the applicant reporting a history of compensating for her left arm problems by using her right arm rather than opinion on causation from Dr Lieu. Whilst this is a reasonable assessment of Dr Lieu’s report, it remains significant as a contemporaneous account of the circumstances and manner in which the applicant perceived her right shoulder symptoms commenced. Nothing in Dr Lieu’s report suggests any disagreement with the applicant’s own assessment.
The right shoulder symptoms were treated with ultrasound guided steroid injections. This appears to have resulted in some improvement in symptoms. By the time of Dr Dixon’s 19 March 2020 examination, however, symptoms of stiffness and pain in the right shoulder were persisting.
As with the right elbow, Dr Dixon indicated that the pain and stiffness at the right shoulder developed while favouring the left elbow and wrist. Whilst this opinion was given without further explanation, it is consistent with Dr Dixon’s account of the impact of the left upper extremity injury on the applicant’s activities of daily living. It is also consistent with the contemporaneous account recorded in Dr Lieu’s report of 7 December 2018.
Once again, it is in this context that Dr Dixon’s statement on causation must be viewed. Reading the report as a whole it is sufficiently clear that Dr Dixon understood the right shoulder condition to be causally related to the left arm injury due to the impact of that injury on the applicant’s activities of daily living and the applicant favouring the injured limb by doing all tasks with her right hand.
Dr Gothelf also diagnosed a right shoulder condition of impingement, partial rotator cuff tear and AC joint arthritis. Dr Gothelf noted that these had been treated with physiotherapy and cortisone injections. Dr Gothelf was not, however, satisfied that the condition was related to the left arm injury.
I accept the submission made by the applicant that the explanation for this opinion given by Dr Gothelf suggests that he may have erroneously turned his mind to the question of whether there was an “injury” to the right shoulder. This is demonstrated by his reference to the absence of recorded “injury” in 2014 or when the symptoms began, and the fact that the applicant had not worked since 2016.
The third reason given by Dr Gothelf was that there was no scientific support for the concept that having symptoms in the left arm causes an increased risk of disease in the second limb. It is not clear, however, that Dr Gothelf has appreciated that the applicant was not required to demonstrate the existence of a disease or an aggravation of the disease in the right shoulder. As the authorities above indicate, all that is required is for the applicant to demonstrate that symptoms and restrictions in her right shoulder have resulted from the injury to her left arm. Dr Gothelf has not engaged with the evidence of the impact of the left arm injury on the applicant’s activities of daily living and the applicant performing those tasks with her right hand.
I am not persuaded, having regard to Dr Gothelf’s report, that the opinion revealed in
Dr Dixon’s 2020 report should not be accepted. Considering the evidence as a whole, I feel a sense of actual persuasion that the applicant has experienced symptoms of pain and restriction at her right shoulder as a result of favouring her injured left upper extremity. I am satisfied on the balance of probabilities that the applicant sustained a consequential condition at the right shoulder as a result of the injury.
Having regard to the findings above, it is appropriate that the matter be remitted to the President for referral to a Medical Assessor to assess the degree of permanent impairment at the right elbow and right shoulder resulting from the injury to the left upper extremity. The Medical Assessor will also be asked to assess the degree of permanent impairment to the left upper extremity and the undisputed skin and digestive conditions.

[2021] NSWPIC 151

26 May 2021