Sydney West Area Health Service v Posa - [2013] NSWWCCPD 22

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Sydney West Area Health Service v Posa [2013] NSWWCCPD 22
APPELLANT:		Sydney West Area Health Service
RESPONDENT:		Blazenka Posa
INSURER:		Employers Mutual NSW Limited
FILE NUMBER:		A1-7698/12
ARBITRATOR:	Mr D Nolan
DATE OF ARBITRATOR’S DECISION:		17 December 2012
DATE OF APPEAL DECISION:		22 April 2013
SUBJECT MATTER OF DECISION:		Failure to give reasons; claim for lump sum compensation for a consequential loss; assessment of medical evidence
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Thompson Eslick Solicitors
Respondent:	McDonnell Schroder
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 17 December 2012 is revoked and the following orders made in its place: “1. Award for the respondent employer in respect of the claim for lump sum compensation for loss of efficient use of the left arm at or above the elbow, alleged to have resulted from the injury to the applicant’s right shoulder on 13 November 2000. 2. The claim for lump sum compensation for loss of efficient use of the right arm at or above the elbow as a result of the injury to the right shoulder on 13 November 2000 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities. 3. The Approved Medical Specialist is to be provided with all documents filed in the matter. 4. After the Medical Assessment Certificate is issued, the applicant worker is to have liberty to apply in respect of costs associated with the claim for lump sum compensation for the injury to the right shoulder, otherwise no order as to costs. There is no uplift for complexity.”
2. Each party is to pay her or its own costs of the appeal.

INTRODUCTION

This appeal involves a claim for lump sum compensation for a consequential condition in the worker’s left shoulder said to have been caused by overuse of that shoulder as a result of an accepted injury to the right shoulder. A Commission Arbitrator delivered an extempore decision on 14 December 2012 in which he found in favour of the respondent worker, Blazenka Posa.
The appellant employer, Sydney West Area Health Service, has challenged that decision on various grounds, including that the Arbitrator failed to give reasons for his decision, and has sought an award in its favour or, in the alternative, that the mater be re-determined by a different Arbitrator. Counsel for Ms Posa has (properly) conceded that the Arbitrator “provided no Statement of Reasons at all” and submitted that the matter should be remitted to either the same Arbitrator or a different Arbitrator for re-determination.
As the Arbitrator heard no oral evidence, and as the issue in dispute raises no credit issues, the parties have advised that they consent to the matter being re-determined by me on the basis of the evidence before the Arbitrator, the transcript of the proceedings before the Arbitrator and the submissions made on appeal, and that is the course I propose to adopt (s 354(6) of the Workplace Injury Management and Workers Compensation Act 1998).

THE EVIDENCE

Ms Posa started work for the appellant as a kitchen hand/hospital assistant at Blacktown Hospital on 15 February 1988. She injured her back and (dominant) right shoulder in the course of her employment with the appellant when she lifted some shutters on 13 November 2000. She had cortisone injections for both conditions. Though they relieved her back symptoms, they did not relieve her shoulder symptoms.
She continued her normal duties, which required her to push big trolleys throughout the wards, make sandwiches, and prepare the dining area by re-arranging the tables and chairs. She was also involved in food preparation, making hot chips, loading and unloading dishwashers, which she described as “heavy and repetitive work”, and had to carry baskets of hospital serving trays.
Because of a recurrence of her right shoulder pain on 31 January 2007, Ms Posa saw Dr David Duckworth, shoulder and elbow surgeon. On 21 February 2008, she underwent surgery on that shoulder. After six weeks off work following the surgery, she returned to work on light duties, but “there was still the same lifting involved”, which she said was “quite heavy about 8 kg”.
Her right shoulder continued to be painful and, when she told her rehabilitation coordinator (Felicity Evans) in 2010 of her continuing symptoms, Ms Evans told her to “teach your brain to use your left arm and shoulder, not your right arm”. At about that time, the insurer wanted Ms Posa to upgrade to full duties, which included pushing, pulling and lifting fully-laden steel trolleys containing thirty meals, trays and dishes that weighed approximately 200 kg when full.
Ms Posa said that, because of her injury, she tended to use her left arm more than her right arm. In about December 2010, she started to get severe pain in her left shoulder, having been pushing trolleys from about September of that year, and she returned to see Dr Duckworth. She said she agreed with Dr Duckworth that the pushing and pulling of heavy trolleys was a cause of her left shoulder problems, but added that there were other duties (including wiping tables, cleaning benches, sweeping and mopping) she had to perform with her left arm because of her injured right shoulder. She said that she used her left arm more and had to push the tea trolley and collect trays with her left arm.
Because of a disagreement about Ms Posa’s return to work plan, Ms Posa saw Dr Perla, a WorkCover approved injury management consultant, on 16 November 2010. He took a history of the right shoulder injury and of continuing discomfort and restrictions in that shoulder. He noted that she avoided dishwasher work and heavy lifting. He also noted a normal active range of movement of the left shoulder and, apart from a complaint of pain in the region of the left shoulder blade, recorded no complaint of symptoms in the left shoulder.
In support of her claim, Ms Posa relies on reports from Dr Conrad, general surgeon. In his report of 27 October 2011, Dr Conrad took a history that, after the surgery on the right shoulder in 2008, she tended to do most of her duties with her left arm. Due to favouring her right arm, and overusing her left arm, in about December 2010 her left shoulder became painful.
Ms Posa complained to Dr Conrad of continuing pain and stiffness in her right shoulder, and that she found it difficult to do anything with her right arm. She also complained of pain and stiffness in her left shoulder. Under “Opinion”, Dr Conrad said:
“She has ongoing pain and restriction of movement in her right shoulder and due to favouring her right arm and overusing the left arm, she has developed an injury to her left shoulder, associated with MRI scan evidence of rotator cuff tendinitis and pericapsulitis.”
Though Dr Duckworth provided reports for the right shoulder from 30 November 2007, which I have read, I will focus my attention on his more recent reports, which deal with the left shoulder condition. On 27 July 2011, he reported to Dr Languido, Ms Posa’s general practitioner, that she presented with a chronic problem affecting her left shoulder since December 2010, which Ms Posa related to pulling trolleys. He also noted that she had pain in the biceps muscle and in her elbow.
Dr Duckworth referred Ms Posa for an MRI scan of the left elbow and shoulder, which revealed pericapsular/capsular oedema and changes suggestive of moderately severe capsulitis. The radiologist suggested that close clinical examination was required. On review, after receipt of the MRI scan, Dr Duckworth said that the finding of capsulitis fitted with Ms Posa’s clinical picture. A cortisone injection into the shoulder gave some relief but she still had quite a stiff shoulder.
On 14 May 2012, Ms Posa’s solicitor wrote to Dr Duckworth requesting him to address several specific questions. The letter referred to the right shoulder injury on 13 November 2000 and said that Ms Posa now suffered from pain in her left shoulder and arm due to overuse. It said that Ms Posa’s instructions were clear that the “injury to her left elbow and left shoulder are consequential upon her favouring her right shoulder and overusing her left arm, elbow and shoulder to compensate for her right shoulder injury”. It asked if the doctor agreed. It also asked if Dr Duckworth agreed with Dr Breit (an orthopaedic surgeon qualified by the insurer) that adhesive capsulitis is constitutionally-based but can be work-related, but only as a result of a significant traumatic event.
Dr Duckworth responded on 1 June 2012 that he originally saw Ms Posa for her right shoulder in 2007 and that “[s]he then presented with a new injury to her left shoulder”, which had been a problem since December 2010. She related it to pulling trolleys when she was at work on light duties. She described a lot of pain around the biceps, particularly around her (left) elbow and shoulder. On examination on 27 July 2011, Ms Posa had a lot of pain around her biceps, which appeared muscular in nature, but her rotator cuff appeared to be intact. He last saw her on 21 March 2012, when she still had a mild problem in her left shoulder, with a slightly limited range of motion and pain around her biceps.
He set out the following questions and answers from the solicitor’s letter, though they did not appear in this order in the letter:
“1.     Has favouring her right shoulder consequently caused problems to her left shoulder?
No
2.     What is the diagnosis and how did she get it?
The diagnosis of her left shoulder is that of a left frozen shoulder, or adhesive capsulitis. Her left elbow appears to have settled down.
…
5.     Your opinion as to whether the injury / condition can be reasonably attributed to either as a cause or aggravation through the accident described.
Yes. It has been aggravated by her work. A certain element may however be idiopathic.
…”
Dr Duckworth did not say whether he agreed with Dr Breit that capsulitis is constitutionally-based and can only result from a significant traumatic event.
Dr Breit examined Ms Posa on 20 December 2011. He took a history of the right shoulder injury in November 2000 and of the subsequent treatment for that injury. He recorded that Ms Posa developed pain in her left shoulder in December 2010, but did not record the cause of those symptoms.
Dr Breit said that the ultrasound of the left shoulder dated 4 April 2011 showed bursitis and reported impingement and supraspinatus tendonosis, but the most significant finding in the MRI scan was the capsulitis.
Commenting on Dr Conrad’s opinion, Dr Breit said that Dr Conrad had not identified the true pathology in the left shoulder and his stated reason for Ms Posa’s problems was not correct. Expressing his opinion as a shoulder surgeon, Dr Breit said that the condition of “pericapsulitis” referred to by Dr Conrad is a condition that “does not exist”. He said that Ms Posa had a right rotator cuff impingement, left frozen shoulder (capsulitis) and left lateral epicondylitis.
On the issue of causation, Dr Breit said that Ms Posa’s employment had “only contributed to the right shoulder, because of an injury”, but the problem in the left shoulder (capsulitis) was “constitutionally based” and occurred in between two and five per cent of the population. It is more common in diabetics, people with endocrinopathies (noting that Ms Posa has thyroid disease), and in women.
Dr Breit added that the condition can be related to work where there is an injury, not just a bump in a corridor, but a significant traumatic event. The occurrence of Ms Posa’s left frozen shoulder had nothing to do with employment. The classical presentation was one of gradual onset of pain, followed by episodes of more significant pain when it is pushed past its point of comfort, and then diminishing movement. Pushing past the point of comfort simply produces more pain, it did not cause, aggravate or accelerate the condition.

THE CLAIM AND THE INSURER’S RESPONSE

Ms Posa originally submitted a claim form in April 2011 to the insurer on risk at that time, QBE Insurance (Australia) Ltd (QBE). QBE issued a s 74 notice on 2 June 2011 in which it (correctly) disputed liability because Ms Posa had not suffered a new injury in 2011. The notice added:
“QBE has been in contact with your Nominated Treating Doctor, Dr Languido who has indicated that the current injury to the left shoulder is directly related to a right shoulder injury sustained in November 2010.
An existing claim for the right shoulder is currently being managed by EML [Employers Mutual Ltd]. EML Case Manager, Yunita Chaw has agreed to accept liability for the current left shoulder injury as medical information indicates that the current injury is directly attributable to the previous right shoulder injury.”
In a second s 74 notice prepared by the appellant’s solicitor on 7 February 2012 on behalf of the insurer on risk at the time of the right shoulder injury, Employers Mutual Ltd (Employers Mutual), liability was denied on the ground that, based on the opinion of Dr Breit, Ms Posa had not suffered an injury to her left shoulder as a consequence of favouring her right shoulder.
The Application to Resolve a Dispute (the Application) alleged that Ms Posa injured her back and right shoulder on 13 November 2000 when she lifted some metal shutters and that she suffered a “consequential loss of her left shoulder through overuse of her left shoulder”. She claimed lump sum compensation under the Table of Disabilities in respect of the permanent loss of efficient use of each arm at or above the elbow, together with compensation for pain and suffering. The exact quantum of compensation claimed is unclear.

THE ISSUE

The issue is whether the condition of Ms Posa’s left shoulder has resulted from the accepted injury to her right shoulder in November 2000 (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang). It is not suggested that she suffered an injury to her left shoulder under s 4 of the Workers Compensation Act 1987 and the several references in the evidence to such an injury indicate an incorrect approach.

SUBMISSIONS

Relying on Ms Posa’s history that she used her left shoulder more after the operation on her right shoulder, and on Dr Conrad’s evidence and, to a lesser extent, on Dr Duckworth’s evidence, Ms Posa’s solicitor, Mr McDonnell, submitted that the condition of the left shoulder has resulted from the accepted injury to the right shoulder. Essentially, he argued that the consistency of Ms Posa’s complaints of overuse of her left arm, due to pain and restrictions in her right arm because of her right shoulder injury, support a finding in her favour.
In support of his argument that Ms Posa has consistently complained that she has placed an extra strain on her left shoulder because of her right shoulder injury, Mr McDonnell referred to the QBE injury management plan dated 15 April 2011 where the “injury” was described as follows:
“Existing injury R shoulder, I have rec’d treatment over a period of time, since initial injury I favoured my R shoulder & now finding trouble with my left shoulder & arm.”
Mr McDonnell also relied on Ms Posa’s claim form, in which she said that the injury to her left shoulder (had been) caused by overuse of that shoulder because of the original injury to the right shoulder. He highlighted the fact that Dr Breit did not look at the consequential loss issue and that Ms Posa did not have to prove that she suffered an aggravation of a disease under s 4(b)(ii).
Counsel for the appellant, Ms Dulhunty, submitted that:
(a)     the opinion of Dr Breit that the left frozen shoulder condition is constitutionally based would be preferred because Dr Conrad is a general surgeon and not a shoulder surgeon;
(b)     Dr Perla made no mention of a left shoulder problem in November 2010;
(c)     with respect to Ms Posa’s assertion that her left shoulder condition resulted from her right shoulder injury, she has no medical training and her self-diagnosis cannot count for anything;
(d)     Dr Duckworth denied that favouring the right shoulder caused problems with the left shoulder and he was the treating surgeon and knows the injuries and conditions best;
(e)     the condition of the left shoulder is basically constitutional and there is no evidence of an injury
(f)      question five to Dr Duckworth was not clear and his answer may relate to the right shoulder;
(g)     Dr Duckworth and Dr Breit clearly state that the left shoulder condition is not work-related and has not been caused by Ms Posa favouring her right arm;
(h)     Dr Conrad appeared to treat the left shoulder condition as a new injury and he (initially) assessed the shoulder using the whole person impairment method rather than the Table of Disabilities. His report did not satisfy the test in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 (Makita) and reliance could not be placed on it, and
(i)      the causal chain does not link the left shoulder condition to the right shoulder injury in November 2000.

DISCUSSION AND FINDINGS

On the evidence tendered, which is unsatisfactory in several respects, Ms Posa’s claim cannot succeed.
The fundamental problem with the claim is that it is based on the incorrect conclusion by Dr Conrad that overuse of the left arm has caused a rotator cuff tendinitis and pericapsulitis. In light of the MRI findings, and the opinions from Dr Duckworth and Dr Breit, medical experts who specialise in shoulder surgery, the correct diagnosis is capsulitis or frozen shoulder. The causes of that condition are not said to include overuse.
Dr Conrad has not commented on the different diagnosis given by Dr Duckworth and Dr Breit. Nor has he commented on the evidence that capsulitis is “constitutionally based”. Given the expertise of Dr Duckworth and Dr Breit in shoulder conditions, not matched by Dr Conrad, and given Dr Breit’s criticism of Dr Conrad’s diagnosis, to which Dr Conrad has not responded, Dr Breit’s opinion, which is supported by the treating specialist, is to be preferred.
I have reached this conclusion notwithstanding that Dr Breit did not take a full history of the additional use to which Ms Posa put her left shoulder because of the pain in her right shoulder, and did not directly address the consequential loss issue. While “[a]n expert opinion is only as good as the foundation upon which it is based” (City of Brimbank v Halilovic [2000] VSCA 12 at [23]), given the doctor’s expertise, his diagnosis (supported by Dr Duckworth), and his opinion that capsulitis is constitutionally based, I do not believe the lack of a history of overuse has so undermined his opinion that it should not be accepted.
Dr Breit’s opinion has to be read with his explanation that capsulitis is more common in diabetics, people with endocrinopathies and in women. As Ms Posa met two of those conditions, and did not suffer a significant trauma to her left shoulder, the logic of Dr Breit’s opinion is compelling and has not been addressed by Dr Conrad. Dr Breit’s report provided a “fair climate” for the acceptance of his opinion (Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509–510) and involved an unambiguous rejection of the claim.
To the extent that the weight attached to Dr Breit’s evidence is reduced because he did not take a history of overuse of the left arm (and I do not believe that it is), it makes no difference to the result. That is because Dr Duckworth agrees with Dr Breit’s diagnosis and, armed with a detailed history of the overuse, when asked to comment on whether favouring the right shoulder caused problems with the left shoulder, his answer was a clear and unequivocal “no”. Mr McDonnell’s attempt to save the case, in light of that damning answer, by referring to Dr Duckworth’s answer to question five (see [16] above) is unpersuasive.

The answer to question five does not assist Ms Posa. Even allowing for the error in Dr Duckworth’s transcription of the question, (he incorrectly wrote “as a cause or aggravation” instead of “as a cause of aggravation”), the lack of clarity in the question (which appears to have words omitted) renders the answer of limited probative value.
Moreover, it is unclear what Dr Duckworth meant when he wrote “[i]t has been aggravated by her work”. Even assuming (in favour of Ms Posa) that the “it” was the left shoulder condition, that answer directly contradicts the doctor’s earlier answer on causation. In light of his clear and unequivocal rejection of a connection between “favouring her right shoulder” and the “problems [in] her left shoulder”, some explanation was required before it could be accepted that the answer to question five supports a relevant connection such that, based on a commonsense evaluation of the chain of causation, the left shoulder condition could be said to have resulted from the right shoulder injury. There is no explanation.
In light of the medical evidence, the fact that Ms Posa has consistently complained that her left shoulder problems resulted from overuse of that shoulder is of limited probative value. While it is certainly possible that overuse will cause shoulder symptoms, the preferred medical evidence in this case is strongly against the conclusion that overuse has caused or contributed to Ms Posa’s capsulitis, and the claim must fail.
Dr Perla’s finding in November 2010 that Ms Posa had a normal range of movement of the left shoulder, and his recording that she did not complain of symptoms in that shoulder, is not decisive, but tends to undermine the assertion that those symptoms resulted from overuse. If it were the case that the left shoulder symptoms had been caused by overuse, one would have thought that, given the longstanding problem with the right shoulder, those symptoms would have been apparent well before December 2010. However, I have not based my decision on this issue.
In the absence of a report from Dr Languido, reliance on the hearsay summary of his opinion in QBE’s s 74 notice does not advance Ms Posa’s case. Even giving full weight to that evidence (since the Commission is not bound by the rules of evidence), because of their additional experience and training, I prefer and accept the evidence of the two shoulder specialists (Dr Breit and Dr Duckworth), to the unexplained opinion of the general practitioner (Dr Languido).
Though the claim must fail, I should record that Ms Dulhunty’s submissions about the application of Makita were misguided. Exactly which part of the “test” in Makita Dr Conrad’s report failed to satisfy was not identified. He took an accurate history and explained the basis for his conclusion, which was clearly based on his expertise as a general surgeon. That was sufficient to comply with the principles in Makita.
The fact that Dr Conrad initially conducted a whole person impairment assessment rather than an assessment under the Table of Disabilities was (clearly) irrelevant to the causation issue. The rejection of Dr Conrad’s opinion does not depend on an alleged non-compliance with the principles in Makita, but on an acceptance of Dr Breit’s diagnosis and his explanation of the cause of that diagnosis, and the acceptance of Dr Duckworth’s evidence.
In light of Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 8 DDCR 399, it is surprising that respondents and insurers remain obsessed with Makita and (wrongly) attempt to rely on it in almost every case where there is a medical issue.

CONCLUSION

The claim for lump sum compensation under the Table of Disabilities for the left arm at or above the elbow fails because the expert evidence does not support a connection between the left shoulder condition and the accepted injury to the right shoulder. Applying the principles in Kooragang, Ms Posa has not established that the condition of her left shoulder has resulted from the accepted injury to the right shoulder. The claim for lump sum compensation for the right shoulder is remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment under the Table of Disabilities.
As Ms Posa’s solicitors may be entitled to some (limited) costs associated with the claim for the right shoulder, the question of costs of the claim are to be determined after the AMS’s assessment. Assuming that there was no contest about the claim for the right shoulder, there is no entitlement to costs of the arbitration, which focused solely on the entitlement for the left shoulder.

DECISION

The Arbitrator’s determination of 17 December 2012 is revoked and the following orders made in its place:
“1.     Award for the respondent employer in respect of the claim for lump sum compensation for loss of efficient use of the left arm at or above the elbow, alleged to have resulted from the injury to the applicant’s right shoulder on 13 November 2000.
2.     The claim for lump sum compensation for loss of efficient use of the right arm at or above the elbow as a result of the injury to the right shoulder on 13 November 2000 is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities.
3.     The Approved Medical Specialist is to be provided with all documents filed in the matter.
4.      After the Medical Assessment Certificate is issued, the applicant worker is to have liberty to apply in respect of costs associated with the claim for lump sum compensation for the injury to the right shoulder, otherwise no order as to costs. There is no uplift for complexity.”

COSTS

Each party is to pay her or its own costs of the appeal.

Bill Roche

Deputy President
22 April 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE