Sussan Corporation (Aust) Pty Ltd v McBride
[2009] NSWWCCPD 157
•15 December 2009
WORKERS COMPENSATION COMMISSION DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR CITATION: Sussan Corporation (Aust) Pty Ltd v McBride [2009] NSWWCCPD 157 APPELLANT: Sussan Corporation (Aust) Pty Ltd RESPONDENT: Toni McBride INSURER: CGU Workers Compensation (NSW) Limited FILE NUMBER: A1-4337/09 ARBITRATOR: Mr J McDermott DATE OF ARBITRATOR’S DECISION: 1 September 2009 DATE OF APPEAL DECISION: 15 December 2009 SUBJECT MATTER OF DECISION: Injury and causation. PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore HEARING: On the papers REPRESENTATION: Appellant: Bartier Perry Respondent: T & A Legal ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 1 September 2009 is confirmed.
The Appellant is to pay the costs of the appeal.
BACKGROUND TO THE APPEAL
1.The Respondent, Ms Toni McBride, was employed by the Appellant, Sussan Corporation (Aust) Pty Ltd, as a picker/packer at its factory at Yennora for some thirteen years. She claimed that on 28 September 2007 whilst unpacking and pushing boxes along a conveyor, she injured her neck and right shoulder.
2.She ceased work, saw a number of medical practitioners, had numerous radiological and other investigative procedures, and eventually resumed work for a short period between February and May 2008. However, her symptoms persisted and she ceased work again, and has not resumed since.
3.Liability was initially accepted by the Appellant’s insurer, CGU Workers Compensation (NSW) Limited (‘CGU’) but denied in a section 74 Notice dated 5 January 2009, principally on the grounds that Ms McBride was no longer incapacitated.
4.By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 4 June 2009, Ms McBride sought weekly benefits from 16 February 2009, medical expenses and lump sum compensation.
5.The parties attended a hearing before a Commission Arbitrator on 19 August 2009. No oral evidence was given, and the parties’ submissions were recorded in a transcript of that date. Ms McBride conceded that she was fit for her pre-injury duties from 15 May 2009, and her claim for weekly benefits was amended accordingly to cover the period from 16 February 2009 to 15 May 2009. The Appellant accepted that Ms McBride had suffered an injury to her right shoulder in the incident alleged, but disputed that she had also injured her neck. The Appellant claimed that Ms McBride’s Application was defective, since no notice of injury or notice of claim had been made in relation to the claimed neck injury.
6.In a reserved decision delivered on 1 September 2009, the Arbitrator accepted that Ms McBride had provided a reasonable explanation for her “technical failure” in relation to the claimed neck injury, and that the Appellant was on notice of such an injury since 5 October 2007 and was not prejudiced by the failure to give notice or make a claim. He found that Ms McBride injured her neck in the incident on 28 September 2007. The Certificate of Determination issued on 1 September 2009 with an accompanying Statement of Reasons (‘Reasons’) records the following orders:
“The Commission determines:
1. The matter be remitted to the Registrar for referral to an Approved Medical Specialist to assess the Applicant’s whole person impairment arising from the injury on 28 September 2007.
2. The Respondent to pay the Applicant weekly benefits for the closed period from 16 February 2009 to 15 May 2009 and amounting to $4623.00.
3. The Respondent to pay the Applicant’s costs as agreed or assessed.”
7.It is from this decision that the Appellant seeks leave to appeal.
ON THE PAPERS REVIEW
8.Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
9.Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
10.Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
11.The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. The amount at issue on appeal satisfies the threshold requirements of section 352(2).
12.Leave to appeal is granted.
THE ISSUES IN DISPUTE
13.As the Arbitrator pointed out at [2] of his Reasons:
“There is no disagreement between the parties as to whether the Applicant has suffered from an injury which interfered with her employment but there is disagreement as to the nature of the injury and as to the cause.”
14.Notwithstanding the issues raised in the Appellant’s section 74 Notice, it emerged at the hearing that the critical issue in dispute between the parties was whether Ms McBride had injured her neck in the incident alleged, or only her right shoulder, as claimed by the Appellant. The consensus of medical opinion was to the effect that Ms McBride suffers chronic right C7 radiculopathy. The Arbitrator noted at [68] of his Reasons that Ms McBride “relies upon the injury to the cervical spine as entitling [her] to weekly benefits…” and concluded at [70] that:
“The thrust of the evidence is that the shoulder injury has faded into insignificance as the injury to the cervical spine has taken on greater prominence. On the balance of probabilities, any residual effect is either as a result of the injury to the cervical spine or is insufficient to effect the Applicant’s incapacity arising from the injury to the cervical spine.”
15.The Appellant submits that the Arbitrator erred in finding that Ms McBride injured her neck for the following reasons:
“i. Ms McBride did not report a cervical spine injury, complain of any cervical spine symptoms or seek treatment for the cervical spine condition until about 8 months after [the injury];
ii. The opinions of Dr Farey and Dr Bentivoglio were based on [an] incorrect history provided by the worker…
iii. The Arbitrator erred in finding the medical reports are based on the expertise of individual doctors and not upon any misleading history in respect of the original onset of neck pain, when the medical reports clearly indicate the doctors relied on the worker’s history of injury.”
16.The Appellant submits that the Arbitrator’s finding that Ms McBride suffered an injury to her neck in the incident on 28 September 2007 should be set aside, and an award made in its favour in respect of that injury. That being the case, there is no basis upon which the matter should be referred to an AMS for assessment as the referral was only in relation to the cervical spine. In those circumstances, the question then remains as to whether the evidence supports a finding of incapacity during the period claimed as a consequence of the right shoulder injury.
17.The Arbitrator acknowledged at [29] of his Reasons that there were inconsistencies in the various medical opinions, but appears to have resolved the issue in favour of Ms McBride at [30] on the basis that “…the thrust of the medical diagnoses has slowly shifted over a period of time from an injury to the right shoulder only to difficulties with the right shoulder and the neck, to damage to the cervical spine which is also responsible for the right shoulder difficulty…”
18.The question for me to consider is whether this ‘shifting diagnosis’ approach was correct having regard to the whole of the evidence. In the absence of any statement from Ms McBride, this requires careful scrutiny of the history and sequence of events as outlined in the various medical reports.
19.Although not identified as a ground of appeal, the Appellant also submits that, since Ms McBride’s condition had “settled” by 15 May 2009, and she had been certified fit to resume pre-injury duties, her claim for impairment of the neck should not have been referred to an AMS in line with the decision in Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mi Ran t/asPure and Delicious Healthy and anor [2009] NSWWCCPD 47 (‘Peric’).
THE EVIDENCE
Ms McBride’s Evidence
20.This may be summarised as follows:
(a) In the CGU Claim Form completed by Ms McBride on 23 November 2007, she said that she reported her injury to her employer on 5 October 2007. She described that injury as “Rotator Cuff Tear?”
(b) Her treating general practitioner, Dr Fernandez-Estacio first saw her on 5 October 2007. Her notes record this history: “R shoulder pain which started 2 wks ago worsening; on palpation, tensed muscle on top shoulder…”
(c) On 17 October Ms McBride had an ultrasound of her right shoulder which demonstrated “a complete tear at the long head of the biceps tendon…”
(d) On 24 October 2007 Ms McBride was referred to Dr Charles New, orthopaedic surgeon, who arranged a nerve conduction study, EMG, x-rays of the right shoulder and cervical spine, and an MRI of both the cervical spine and the right shoulder.
(e) The MRI of the right shoulder on 28 November 2007 concluded: “There is infraspinatus and supraspinatus tendonosis, but no tear…There is a tear of the superior labrum from anterior to posterior, the appearance suggests a type 2 SLAP tear…”
(f) The MRI of the cervical spine also carried out on 28 November showed: “At C5/6 and C6/7, there is disc space narrowing, with shallow broad based posterior disc protrusions…”
(g) The EMG carried out on 29 November 2007 reported: “The upper limb NCS and EMG of right C5-8 innervated muscles were normal.”
(h) The first report from Dr New is dated 5 December 2007. He said:
“Her nerve conduction and EMG were normal however the MRI of her cervical spine showed cervical spondylosis with a mild bulge at C5/6 and C6/7.
With regard to her right shoulder, there is evidence of infraspinatus and supraspinatus tendonitis with the possibility of a Type 2 SLAP Tear.
That being the case, I think she does not require any further treatment of her neck however I would suggest that she see a Shoulder Surgeon regarding her problem and with this in mind, I have recommended that she see Dr David Duckworth and wait for his opinion.”
(i) In a report dated 18 December 2007, Dr Duckworth referred to an earlier injury to the left shoulder for which he treated Ms McBride. He continued:
“She now has a problem affecting her right shoulder, which was not as a result of one particular injury. She described a gradual onset on the 28th September 2007, when she was pushing cartons. She developed pain around her trapezial region and neck region and down her arm.
An MRI scan of the right shoulder showed the possibility of a Type II SLAP lesion.
Ms McBride gives no clinical evidence today of a SLAP lesion. Her pain appeared to be more neurological in nature, which started in the trapezial region and radiated posteriorly around her triceps.
I do not believe that any form of surgery, particularly an anthroscopy of her shoulder, will make any difference to her pain. I have recommended physiotherapy to both her shoulder and her neck, hydrotherapy and time.
If her pain does not settle down, I have recommended that she see a Neurologist or yourself in regards further management of what appears to be pain which is neurological in nature. Once again I do not have a surgical solution to her discomfort.”
(j) On 3 January 2008 Ms McBride had an “Ultrasound guided cortisone injection of right shoulder.”
(k) The notes from Dr Fernandez-Estacio show consultations as follows:
“21 January 2008: Right shoulder symptoms improving a bit after steroid inj.
1 February 2008: Right shoulder pain not improving, requesting a second opinion.
25 March 2008: In pain right shoulder.
28 March 2008: No significant improvement. [Medication prescribed].”
(l) Consultations thereafter up to 12 May 2008 were in relation to other medical problems. No reference was made to either the right shoulder or neck. Ms McBride appears to have returned to work during that period.
(m) On 12 May 2008 there is a reference to “flaring up of symptoms right shoulder.” On 13 May 2008 the notes record: “Still complaining of pain right shoulder and arm. Appointment with Dr Sonnabend was postponed.” On 20 May 2008 it is noted that Ms McBride had seen Dr New.
(n) Dr Fernandez-Estacio wrote a report on 21 May 2008 stating that: “In summary, Toni has ongoing pains on her right shoulder from lifting boxes at work which recently has worsened and gone up to her neck.”
(o) On 10 June 2008 the entry reads: “Nerve conduction study showed apparently some C7 radiculopathy. Saw Dr New. Awaiting surgical review with Dr Ferry (sic).”
(p) A subsequent report from Dr New dated 11 June 2008 addressed to Dr Fernandez-Estacio stated:
“On review today (10 June 2008), Ms McBride has EMG findings consistent with a chronic right C7 radiculopathy and it was noted that these findings were not present on the previous study of the 29 November 2007. She is certainly complaining of C7 pain today extending as far as her wrist.
The MRI confirms that she has disc bulges at C5/6 and more importantly at C6/7 which I think is the main provocation for her pain.
I would note that I no longer operate on cervical spine pathology and I have taken the liberty of referring her to see Dr Ian Farey, a former mentor of mine, who will make a decision on whether he wishes to consider the possibility of surgical intervention for this lady.”
(q) In a report dated 26 August 2008 addressed to Dr New, Dr Farey said:
“Thank you for asking me to review Toni McBride, a forty-nine year old Warehouse Packer who presents with neck pain and right upper limb pain radiating to the wrist. Her symptoms are secondary to cervical spondylosis.
Ms McBride dated the onset of her symptoms to 28 September 2007. She lifted boxes during the course of her work related duties and developed neck pain. She underwent physiotherapy and was also treated for pain which radiated to her shoulders. She subsequently developed right upper limb pain radiating to the dorsoradial aspect of the forearm and wrist. Her symptoms have persisted.
At the time of consultation, Ms McBride complained of constant neck pain related to the posterior aspect of the cervical spine. The pain radiated to the right shoulder and distally to the wrist. Her symptoms are exacerbated by getting out of bed. There was paraesthesia in the index and middle fingers of the right hand but no numbness. She also had subjective weakness in her arm but did not have symptoms of spinal cord compression. She denies any history of symptoms prior to her injury.
X-rays of the cervical spine revealed the presence of cervical spondylosis at the C5-6 and C6-7 levels with loss of disc height. [MRI] also confirmed the presence of degenerative disc disease at these two levels… Nerve conduction studies revealed the presence of chronic right C7 neuropathy.
X-rays of the right shoulder revealed the presence of mild right acromio-clavicular joint osteoarthritis and [an MRI] of the shoulder did not reveal any evidence of rotator cuff tear but there was some tendinosis involving the spinati.
Ms McBride has symptoms of cervical spondylosis and does have an irritative right C7 radiculopathy. She has significant neck pain and surgically the options include…fusion…
Although she has some degenerative change in relation to the acromio-clavicular joint and some tendinosis in relation to the rotator cuff I believe that although this may be producing some of her symptoms her dominant symptoms are those secondary to cervical spondylosis.”
(r) In a report dated 1 October 2008 Dr Farey said:
“She continues to experience constant neck pain and right upper limb pain radiating to the triceps.
Clinically, there was restricted extension and rotation in the cervical spine…Provocative tests for upper limb nerve root compression were positive on the right side. Neurological examination revealed slight weakness in the right triceps muscle but no numbness.
Ms McBride has symptoms of cervical spondylotic radiculopathy…”
(s) Similar comments were made in a report dated 3 November 2008. In the meantime, Dr Farey had written to CGU requesting permission for him to perform “anterior decompression and fusion at the C5-6 and C6-7 levels as her symptoms have failed to respond to appropriate non-operative treatment.”
(t) In his final report dated 12 November 2008, Dr Farey said:
“Mrs McBride reported that she developed neck pain on 28 September 2007 after lifting boxes during the course of her work related duties as a warehouse packer. In this regard, I am reliant on her history. Should this be the case, the lifting injury has resulted in production of neck pain.
I note that she was treated for shoulder pain initially but the dominant complaint was that of neck pain which radiated to the shoulder and subsequently to the upper limb. These symptoms are related to cervical spondylosis.
Mrs McBride denied any symptoms related to her neck or arm prior to the lifting injury. Radiological studies have revealed the presence of cervical spondylosis at the C5/6 and C6/7 levels which is generally present in all patients over the age of forty.
In my opinion, the lifting injury has rendered her condition symptomatic and she has ongoing symptoms which require treatment. It is likely that she has strained her neck during the course of her work related duties and particularly during the course of lifting. This is a not uncommon cause of production of symptoms in relation to this condition.”
(u) Ms McBride consulted Dr John Bentivoglio at the request of her solicitors on 24 April 2009. In a report of the same date he said:
“On 28 September 2007 she was unpacking boxes when she developed neck and right shoulder pain…
She always has some degree of neck pain which radiates towards her right shoulder region. She no longer experiences symptoms in her right upper limb…[they] stopped once she got the cortisone injection. She still experiences interscapular pain, pain at the base of her skull, approximately 3-4 headaches per week… She notices she does have decreased movement in her neck…She does not feel as though there has been any improvement in her neck symptoms in recent times….
This lady would have sustained discal damage in her cervical spine region which resulted from the incident she described at work. Her nerve conduction studies indicate that she did have a C7 radiculopathy on the right side as a result of this injury….This lady also has a minor abnormality present in the right shoulder region…I consider a considerable proportion of this lady’s symptoms in her right shoulder are referred symptoms from her neck region. Certainly there is no evidence of significant shoulder pathology on today’s examination…
I consider all of this lady’s disability from her SLAP lesion in her right shoulder has been caused by the specific incident at work on 28 September 2007. I believe that most of her neck and right shoulder pain and all of her chronic C7 radicular symptoms have occurred as a result of that specific lesion as well….”
The Appellant’s Evidence
21.The Appellant arranged for Ms McBride to be examined by Dr Shatwell, orthopaedic surgeon, on 11 December 2008. In a report dated 12 December 2008 he said:
“Ms McBride told me that she experienced sudden onset pain in the root of her neck on the right side on 28 September 2007. She felt the pain came on after she had pushed some 30kg boxes along a roller conveyor. The pain was severe enough for her to stop work early and go home.”
22.Dr Shatwell then set out the history of consultations with various doctors and the treatment provided. He concluded:
“There has been no significant injury at work. Ms McBride’s symptoms of neck and shoulder pain came on during a normal work activity…
There is no doubt that Ms McBride has symptoms related to cervical spondylosis but it is unlikely that this condition is related to her conditions of work or to a specific injury that occurred at work.
The diagnosis is cervical spondylosis with nerve root irritation causing pain in the right arm. This diagnosis is consistent with the symptoms and clinical findings.”
THE ARBITRATOR’S FINDINGS AND REASONS
23.The Arbitrator’s relevant findings and reasons are rather scattered throughout his decision. After setting out the background to the claim, the Arbitrator noted at [4] of his Reasons that Ms McBride had “been to see numerous Doctors, including various Specialists, and a diagnosis as to the nature of her injury has evolved over a period and in an unusual way.”
24. He continued as follows:
“5. Although the various Doctors, including those who have provided Expert Reports, agree on a number of matters, there are issues as to whether the Applicant initially suffered a shoulder injury which was secondary to an injury to the cervical spine or whether an injury to the cervical spine was secondary to a shoulder injury. Other alternative explanations will emerge in the following paragraphs.”
25.Under the heading “Findings and Reasons Causation (Neck/Cervical Spine)” the Arbitrator said:
“17. I accept the Respondent’s submissions that the Applicant is bound by the approach taken to the effect that injury to the cervical spine is responsible for any ongoing injury to the Applicant’s right shoulder and that any suggestion of any ongoing injury would fail if injury to the cervical spine is either not proved or the principle in Peric v Chul Lee HyuangHo Shin Jong Lee & Mi Ran t/as Pure and Delicious Healthy and anor [2009] NSWWCCPD 47 (‘Peric’) (which I will return to) applies.”
26.He continued:
“20. In fairness, there are occasions upon which there is a lack of clarity as to what the medical reports in evidence attempt to say, as to what history is relied on and, amongst other issues, as to whether the injuries to the cervical spine gave rise to the symptoms with respect to the right shoulder or the reverse.
21. This matter is unusual in that the Applicant did not communicate, at least to the Respondent, that she had suffered an injury to her cervical spine until about eight months after the nominated Date of Injury.”
27.He noted the Appellant’s reliance on the decision of Deputy President Roche in Brasz vDepartment of Ageing, Disability and Home Care [2009] NSWWCCPD 62 (‘Brasz’). In that case, the worker claimed that she had injured her neck and right shoulder in an accident at work on 26 March 2007. She did not mention any neck symptoms to her doctors for almost a month after the accident. The Arbitrator rejected her claim that she had injured her neck principally because of the delay in reporting symptoms. His decision was confirmed on appeal. I will refer to that decision more fully in due course.
28.The Arbitrator then set out the “medical history” by reference to the various notes and reports which I have summarised above. He noted the following:
a. The early WorkCover Certificates diagnosed “complete tear biceps tendon” which diagnosis changed to “right shoulder pain” (which strictly speaking is probably not a diagnosis) on 12 February 2008 (at [26] of his Reasons).
b. The WorkCover Certificate of 20 May 2008 diagnosed “right shoulder pain and neck pain”(at [26] of his Reasons).
c. Dr Duckworth not only rejects the possibility of a SLAP Tear but also found “no positive biceps signs” (at [26] of his Reasons).
d. It was “likely” that Dr Duckworth was “acquainted” with the contents of Dr New’s reports (at [27] of his Reasons).
e. The first report from Dr Farey was consistent with that of Dr Duckworth and because it described Ms McBride’s pain as “neurological in nature” and Dr New’s report of 11 June 2008 which stated that the disc problems in the cervical spine were “the main provocation for her pain” (at [28] of his Reasons).
f. The medical opinions he had referred to had “clear inconsistencies” which were added to by Dr Bentivoglio who accepted that there was a SLAP Tear(at [29] of his Reasons).
g. Medical diagnoses had “slowly shifted over a period of time from an injury to the right shoulder only to difficulties with the right shoulder and the neck, to damage to the cervical spine…” (at [30] of his Reasons).
h. Whether the shoulder injury caused the neck problem or the reverse, the thrust of the medical evidence is that one caused the other. If a frank injury to the Applicant’s shoulder caused her neck problems to emerge later, the reliance which the Respondent places on Brasz would appear to be of no avail (at [31] of his Reasons).
i. If the reverse is the case, then there is an argument that although the symptoms appeared in the shoulder first, they were caused by the injury to the neck on 28 September 2007 notwithstanding the Doctors having taken a lengthy period to establish this (at [32] of his Reasons).
j. Dr Fernadez-Estacio’s comments in her report of 21 May 2008 that symptoms had now “gone up to her neck” was consistent with the other medical reports” (at [33] of his Reasons).
k. Dr Shatwell’s diagnosis of cervical spondylosis with nerve root irritation was consistent with that of Dr Farey (at [38] of his Reasons).
l. He was critical of Dr Shatwell’s conclusion that employment was not a substantial contributing factor to that injury in circumstances where the Appellant had conceded that there was an incident on 28 September 2007 and Dr Shatwell had stated that “Ms McBride’s symptoms of neck and shoulder pain came on during a normal activity. He said at [46 of his Reasons]: “It is difficult to understand how he then maintains that there was no injury (be it to the shoulder or the neck) at work on that day. He makes no attempt to reconcile the apparently contradictory assertions that the pain ‘came on’ whilst the Applicant was pushing 30kg boxes with his denial that an injury/ aggravation was work-related.”
m. There was further inconsistency in Dr Shatwell’s report since he said on the one hand that his report “is based mainly upon the history given to me by Ms McBride, appropriate clinical examination and review of the investigations Ms McBride brought to consultation” but then said “The opinion provided in this Report is based entirely upon the evaluation of objective findings identified”(at [47] of his Reasons).
n. Dr Bentivoglio’s diagnosis was consistent with that of Drs Farey and Shatwell. His “inconsistent” statement that Ms McBride’s disability had been caused by the SLAP lesion was overcome by his earlier comment that: “I consider a considerable proportion of this lady’s symptoms in her right shoulder are referred symptoms from her neck region” (at [53] of his Reasons).
o. There was no evidence that Ms McBride had problems with either her neck or right shoulder prior to the incident on 28 September 2007 (at [54] of his Reasons), and there was no other explanation for her symptoms (at [57] of his Reasons).
29.At [55] the Arbitrator noted the Appellant’s argument that Ms McBride had “misled” Drs Farey, Bentivoglio and Shatwell by suggesting that the onset of neck symptoms occurred on the date of the incident claimed. He continued at [56] of his Reasons as follows:
“It may be that as the Applicant’s evolving condition became clearer clinically, she either consciously or subconsciously attempted to improve her position by suggesting the onset of neck pain at an earlier date than it in fact occurred on but:
a. Dr Farey’s Report of 12 November 2008 makes a clear reference to the Applicant being treated ‘for shoulder pain initially’ (see [36] above) and the referral to Dr Farey was from Dr New.
b. Dr Bentivoglio refers to the Applicant having ‘developed neck and shoulder pain’ without suggesting that the neck pain was immediate. He also makes it clear that he has read the reports from Dr New as well as the report from Dr Farey dated 26 August 2008. It is difficult to see how Dr Bentivoglio could have been misled by an inaccurate history from the Applicant having regard to his having read Dr New’s reports in particular.
c. The major difficulty I have with Dr Shatwell is the implied contention that the Respondent can rely on section 9A(d) of the 1987 Act, combined with his comments about what happened/ did not happen on 28 September 2007.
d. The Applicant’s history to Dr Shatwell is that ‘she felt the pain came on after she had pushed some 30kg boxes along a roller conveyer’.
e. Obviously this was repetitive work that had been undertaken, also as per her history to Dr Shatwell for the last thirteen years. I find it difficult to see, in the absence of some better explanation, how there would have been an occurrence of an injury (with no prior history) had the Applicant not been at work or had not worked in that employment. Dr Shatwell’s observation is unsupported.
f. The clinical notes and WorkCover Certificates from the Erskine Park Family Clinic (Dr Fernandez-Estacio and Dr Kodsy) seamlessly add the neck pain to the shoulder pain although the former in her Report of 21 May 2008 (see Paragraph 33) has the shoulder causing the neck pain which is the reverse of the view adopted by the Specialists.
g. It was Dr Duckworth, who when consulted about the shoulder originally (his Report dated 18 December 2007) started to focus on the neck.”
30.The Arbitrator concluded as follows:
“59. In all the circumstances it appears clear, and I regard this as critical, that the medical reports rely on the expertise of the individual Doctors and not upon any misleading history with regard to or misunderstanding with respect to the original onset of neck pain.
60. It is quite possible that the Applicant was happy for the Medical Specialists to gain the impression that the neck pain started earlier than it did. I do not believe, on the balance of probabilities, that any absence of candour in this area would have influenced any of the opinions ultimately arrived at by those Specialists.
61. On the balance of probabilities, the work-related activity of pushing 30kg boxes in her employment ‘aggravated pre-existing degenerative changes present in her cervical spine’ (as Dr Bentivoglio states it) or ‘rendered her condition symptomatic’ (as Dr Farey states it) thus satisfying Section 4 and Section 9A of the Act.”
31.The Arbitrator then turned to consider the weekly benefits claim, noting at [71] that the Appellant did not contest the “mathematics” of the claim nor that Ms McBride was entitled to such benefits if “injury is proved.” The Appellant however did submit that the claim should arguably cease on either 17 or 27 April 2009 when Ms McBride requested a clearance from her doctor to return to work. This argument was rejected by the Arbitrator and in any event, is not the subject of appeal.
SUBMISSIONS AND DISCUSSION
32.The Appellant’s submissions on appeal focus on the same matters raised before the Arbitrator. In summary, the Appellant submits that Ms McBride “misled” various doctors by claiming the onset of neck symptoms at the time of the injury, and the Arbitrator’s reliance on the opinion of Dr Farey was wrong because of the incorrect history he obtained.
33.Considerable reliance is placed on the decision of Brasz to which I have referred earlier, and which the Appellant submits has “parallels” with the present case.
34.This is not an easy matter to resolve. I accept, to an extent, the Appellant’s submissions. It is true that Ms McBride did not complain to her general practitioner of specific neck symptoms for many months after her injury. To that extent, there are indeed parallels with the decision in Brasz. But that is not an end to the matter.
35.In Brasz, Deputy President Roche observed that the worker’s assertion that she injured both her neck and right shoulder in the incident alleged was not supported by any of the objective evidence. Indeed, there was some doubt raised as to whether the claimed injurious event ever occurred. He concluded at [85] that:
“These inconsistencies and contradictions seriously undermine Ms Brasz’s case and raise real issues as to her reliability and credibility. In light of them, I do not accept her evidence as to when her neck symptoms commenced or her evidence as to the difficulties she claims to have experienced at work up to 18 April 2007.”
36.In the present case, I agree with the Arbitrator that the main difficulty with the claim was the question of diagnosis, rather than any overt attempt by Ms McBride to mislead the doctors she consulted. I am reinforced in my decision because of a number of factors as follows:
a. There was no dispute that Ms McBride suffered an injury at work on 28 September 2007. The issue was the nature of that injury.
b. Her claim form placed a question mark against the injury described.
c. Dr Fernandez-Estacio noted at the initial presentation “tensed muscle on top shoulder.” She then organised an ultrasound of the right shoulder which showed “a complete tear at the long head of the biceps tendon.”
d. Ms McBride was then referred to Dr New. Of considerable significance in this case is that Dr New apparently suspected that her symptoms may be emanating from her cervical spine since he arranged an x-ray and MRI scan of her neck as well as her right shoulder.
e. The MRI of the cervical spine demonstrated “At C5/6 and C6/7, there is disc space narrowing, with shallow broad based posterior disc protrusions…” This is on a background of no prior injury to the neck, nor complaints of neck symptoms.
f. Because of the apparent pathology demonstrated on the MRI of the right shoulder, Dr New elected to refer Ms McBride to a shoulder specialist, Dr Duckworth.
g. As an expert in that field, Dr Duckworth, following clinical examination, concluded that there was no clinical evidence of a SLAP lesion, and considered that “her pain appeared to be more neurological in nature…”
h. Of significance are Dr Duckworth’s findings on examination. He noted that Ms McBride had a reasonable range of movement in the right shoulder but that:
“She had significant irritation around her neck and pain when rotating her neck to the right side. She had a lot of pain around the right trapezial region. The pain in her shoulder (my emphasis) was posterior and radiated down the triceps region…”
i. In other words, Dr Duckworth noted and accepted that Ms McBride had right shoulder pain, but concluded that it was emanating from damage to her neck.
j. His views were confirmed by Dr Farey, notwithstanding his history that Ms McBride had noted the onset of neck pain at the time of her injury. At the time of consultation in August 2008, Ms McBride was complaining of “Constant neck pain related to the posterior aspect of the cervical spine [and] the pain radiated to the right shoulder and distally to the wrist.”
k. Drs Duckworth and Farey noted similar signs on clinical examination.
l. Dr Farey noted that Ms McBride had some evidence of degenerative change in the acromio-clavicular joint and some tendinosis in relation to the rotator cuff, and said that:
“I believe that although this may be producing some of her symptoms her dominant symptoms are those secondary to cervical spondylosis.”
m. The Arbitrator at [56] set out the reasons as he saw it why Ms McBride may have been “either consciously or unconsciously” attempting “to improve her position by suggesting the onset of neck pain at an earlier date that it in fact occurred…” I accept his reasoning but would add that such a position, if indeed adopted by Ms McBride, was understandable in circumstances where she had presumably been advised by Dr New that she had some demonstrated damage to both her neck and her right shoulder as shown on the MRI scans. Early treatment was concentrated on the claimed damage to the right shoulder, but it was Dr Duckworth who in effect changed the course of diagnosis/treatment because of his findings on clinical examination. It is reasonable that Ms McBride may then have concluded that she had damaged her neck in the incident described.
37.It is clear that Ms McBride continued to complain of pain in her right shoulder which the consensus of medical opinion ultimately concluded was as a consequence of damage to her neck. It was not a case of Ms McBride ‘shifting’ her complaints from her shoulder to her neck, rather a case of a ‘shifting’ diagnosis.
38.It is not uncommon for damage to the neck to produce symptoms in the shoulders and arms, and the mechanism of injury described by Ms McBride, accepted by her doctors and not challenged by the Appellant, was consistent with the development of the symptoms she described.
39.The Arbitrator’s criticisms of the report of Dr Shatwell, were, in my view valid. His diagnosis was consistent with that of Dr Farey, but his view that Ms McBride’s condition was unrelated to her employment was simply not supported by the evidence. Ms McBride described a traumatic event which the Appellant clearly accepted had occurred in the manner alleged by Ms McBride.
40.I accept the Appellant’s submission that “Dr Bentivoglio contradicted himself in his own report.” However, given all the other medical evidence, particularly that of Drs New, Duckworth, Farey and Shatwell as to the nature of Ms McBride’s condition, I do not consider it of significance in my determination of this issue.
41.The Appellant also takes issue with the Arbitrator’s comments that it was “likely” that Dr Farey had read Dr New’s reports, suggesting that therefore Dr Farey “would not have been misdirected by [MsMcBride’s] history.” Although I accept that there is no evidence that this was in fact the case, Dr Farey’s initial report was addressed to Dr New, and he clearly had access to the radiological investigations. Given that Dr New was the initial consulting specialist, and had embarked upon a series of investigations and referrals, I believe that it is indeed likely that Dr Farey was aware of the views of Dr New, if not of his reports. Even if I am wrong, I am not persuaded that anything turns on this. Dr Farey’s opinion was clearly based on his clinical examination together with the radiological material. There is no evidence to suggest that he was in some way “misdirected” by Ms McBride’s history.
42.I also accept the Appellant’s criticism of the Arbitrator’s comments at [31] of his Reasons that:
“Whether the shoulder injury caused the neck problem or the reverse, the thrust of the medical evidence is that one caused the other. If a frank injury to the Applicant’s shoulder caused her neck problems to emerge later, the reliance which the Respondent places on Brasz would appear to be of no avail.”
43.The weight of medical opinion, as I see it, was not that one injury caused the other, but, rather that Ms McBride damaged her neck and shoulder in the incident alleged, but that the damage to her shoulder, the initial focus of attention, ultimately turned out to be relatively minor, and although responsible for some of her symptoms (as Dr Farey noted) the bulk of her symptoms emanated from the damage to her neck.
44.I have carefully considered the observations of Deputy President Roche in Brasz at [91] that:
“The burden of proof is not satisfied merely by evidence that it is possible that the causal relationship exists (see Spigelman CJ in Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 at 275 [80]). However, as noted by McDougall JA (McColl and Bell JJA agreeing) in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (at [61]), ‘the inference of causation may be drawn from all of the evidence in the case, including expert evidence as to the possibility that the causal relationship exists.’”
45.In the present case, I am satisfied that certainly an inference of causation can be drawn from all of the evidence. Although Ms McBride initially complained of symptoms in her right shoulder, and there was evidence that there was some damage to it, Dr New I comfortably infer suspected some damage to the neck. His investigations set off a train of consultations with various specialists where the eventual conclusion, particularly from Drs Farey and Shatwell, was that Ms McBride suffered from cervical spondylosis with “an irritative right C7 radiculopathy” which was responsible for the bulk of her symptoms.
46.Aside from Dr Shatwell, there was no evidence to suggest that these symptoms did not arise as a consequence of the incident described. As Dr Farey noted in his report of 12 November 2008:
“Ms McBride denied any symptoms related to her neck or arm prior to the lifting injury. Radiological studies have revealed the presence of cervical spondylosis at the C5/6 and C6/7 levels which is generally present in all patients over the age of 40. In my opinion, the lifting injury has rendered her condition symptomatic…”
47.Applying “a commonsense evaluation of the causal chain” (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452) I am satisfied that the Arbitrator’s ultimate conclusion that Ms McBride injured her neck in the incident described was correct, and consistent with the totality of the evidence.
48.Turning now to consider the Appellant’s submission, based on the decision in Peric, that the claim should not be referred to an AMS since Ms McBride’s symptoms have “settled,” I reject that submission for the following reasons:
a.An entry in Dr Fernandez-Estacio’s notes on 17 April 2009 reads: “Would like to go back to work feels a lot better.” The entry on 27 April 2009 reads: “Requesting clearance to go back to pre-injury duties.” but that she may require “further assess.” The entry on 15 May 2009 reads: “No need for operation at this stage as the symptoms settled. Discussed. Can return to pre-injury duties.”
b.Those notes do not suggest that Ms McBride’s condition has resolved, merely that her symptoms have settled.
c.Dr Shatwell assessed Ms McBride as suffering from a 6% whole person impairment although he did not accept that this was as a consequence of any work injury.
d.Dr Bentivoglio also assessed a “15% whole person impairment secondary to her injury”, although I do accept the inconsistencies in his report as discussed above.
49.I am satisfied that there is sufficient evidence to support the Arbitrator’s decision that Ms McBride is entitled to have any impairment assessed by an AMS.
CONCLUSION
50.Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I am of the view, for the reasons given in this decision, that notwithstanding some inconsistencies in some of the medical evidence and some unsubstantiated comments by the Arbitrator to which I have referred, that the decision of the Arbitrator was correct.
DECISION
51.The decision of the Arbitrator dated 1 September 2009 is confirmed.
COSTS
52.The Appellant is to pay the costs of the appeal.
Deborah Moore
Acting Deputy President
15 December 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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