Talevski v Coles Supermarkets Australia Pty Ltd

[2023] NSWPIC 633

CERTIFICATE OF DETERMINATION OF MEMBER 

CITATION:

Talevski v Coles Supermarkets Australia Pty Ltd [2023] NSWPIC 633

APPLICANT:

Sneza Talevski

RESPONDENT:

Coles Supermarkets Australia Pty Ltd

MEMBER:

Carolyn Rimmer

DATE OF DECISION:

27 November 2023

CATCHWORDS:

WORKERS COMPENSATION - Applicant alleged consequential conditions in the right shoulder, right wrist and neck following injury to her left shoulder on 23 August 2018 and an aggravation at work to the left shoulder in April 2019; consequential condition found in the right shoulder and right wrist; not satisfied consequential condition in the cervical spine; Held – the applicant has not discharged the onus of establishing an injury to the cervical spine; award for respondent; referral to a Medical Assessor in respect of left upper extremity (shoulder), righter upper extremity (shoulder and wrist) and scarring.

DETERMINATIONS MADE:

The Commission determines:

1.   By consent, amend the Application to Resolve a Dispute to add a claim for s 60 expenses in respect of the left shoulder, right shoulder, right wrist, cervical spine and scarring.

2. Applicant discontinues the claim pursuant to s 66 of the Workers Compensation Act 1987 in respect of the right wrist.

3.   Matter is remitted to the President for referral to a Medical Assessor for assessment of the whole person impairment of the left upper extremity (shoulder), right upper extremity (shoulder) and skin/scarring as a result of the injury on 23 August 2018 and the aggravation in April 2019.

4.   Respondent to pay s 60 expenses in respect of the left shoulder, right shoulder, right wrist and scarring on production of accounts and/or receipts.

5.   Award for the respondent in respect of the claim in relation to the cervical spine.

STATEMENT OF REASONS

BACKGROUND

1. On 25 August 2023, Sneza Talevski (the applicant), lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission).  The applicant’s employer at the relevant time was Coles Supermarkets Australia Pty Ltd (the respondent).  The respondent was self-insured at the relevant time.

2. The applicant in the course of her employment with the respondent as a check out operator sustained an injury to her left shoulder on 23 August 2018 when she placed a heavy bag down on a counter.  She sustained an aggravation in April 2019 when she was grabbed on her left arm by a customer. The applicant alleged that she developed consequential conditions in the right shoulder, right wrist and cervical spine as a result of the injury to the left shoulder.

3. The applicant made a claim pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) for lump sum compensation in respect of an injury to her left shoulder on
   23 August 2018 and an aggravation of that injury in April 2019 and for consequential conditions in the right shoulder, right wrist and cervical spine.

4. In a Dispute Notice dated 9 June 2023, the respondent disputed liability for lump sum compensation in respect of the alleged consequential conditions in the right shoulder and cervical spine.

ISSUES FOR DETERMINATION

Matters previously notified as disputed

1. The parties agree that the following issues remained in dispute:

   (a)    Did the applicant sustain a consequential condition to her right shoulder, right wrist and her cervical spine as a result of the injury to the left shoulder on
   23 August 2018 and in April 2019?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

1. The parties attended a conciliation conference and arbitration via video link on
   21 November 2023. The applicant was represented by Mr Andrew Parker, who was instructed by Ms Frisch of Carroll & O’Dea Lawyers.  The respondent was represented by Mr Stuart Grant, who was instructed by Mr Quillan of Turks Legal.  Ms Guiris from Coles Group Limited attended.

2. 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. 

EVIDENCE

Documentary evidence

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

   (a)    ARD and attached documents;

   (b)    Application to Admit Latre documenst filed by the applicant on 15 Novemver 2023 and attached documents, and

   (c)    Reply and attached documents.

Submissions

1. The submissions of the parties were recorded and I do not propose to repeat those submissions in full. However, I note that the respondent submitted that there was no consequential condition in the right shoulder, right wrist or neck as a result of the injury on
   23 August 2018. The respondent submitted that the opinions expressed by Dr Machart should be preferred.  The respondent argued that the fact that the applicant was right handed and would have used her right shoulder and arm for most activities regardless of the injury to the left shoulder meant that no real additional strain would have been placed on the right shoulder and wrist after the injury to the left shoulder. Further, the respondent submitted that the onset of symptoms occurred some considerable time after the injury to the left shoulder when it would have been expected that symptoms would have developed reasonably early after the left shoulder injury.

2. The respondent agreed that there had been an injury to the left shoulder on 23 August 2018 which was aggravated in April 2019 and that the claim in respect of the left shoulder and scarring could be remitted to the President to refer to a Medical Assessor for assessment of whole person impairment (WPI).

3. The applicant submitted that the issue to be determined was whether the applicant had conditions in the right shoulder, right wrist and neck following the injury to the left shoulder on 23 August 2018 and the aggravation of that left shoulder injury in April 2019. The applicant submitted that these consequential conditions were overuse injuries caused by an inability to use the left shoulder.

FINDINGS AND REASONS

1. At the commencement of the arbitration, the ARD was amended by consent to add a claim for s 60 expenses in respect of the left shoulder, right shoulder, right wrist, cervical spine and scarring. The applicant discontinued the claim pursuant to s 66 of the 1987 Act in respect of the right wrist. The parties agreed that in those circumstances, the allegation of a consequential condition to the right wrist would require determination.

Applicant’s evidence

1. In her statement dated 5 July 2023, the applicant said that after the injury on
   23 August 2018, she was referred to Dr Stuart Jansen, orthopaedic surgeon. She stated that Dr Jansen performed a left rotator cuff repair 14 November 2018. The applicant wrote:

   “10. During this time, my left shoulder was in so much pain that I tended to favour my right shoulder and right wrist for my usual activities. For instance, on most days, I would do most of the housework including cooking, cleaning, vacuuming, mopping, laundry and would also rely on my right arm for personal care activities and driving.

   11. Post-surgery, my left shoulder was in a sling and otherwise very sensitive and sore. Once again, this forced me to limit my use of the left shoulder. Again, I would overuse my right shoulder and right wrist with my usual activities in the same way I set out above.”

2. The applicant said that in April 2019 she commenced a gradual return to work program. The applicant wrote:

   “14. During this time, my left shoulder was still sore, albeit was getting better. At the same time, I was scared to hurt it again, so I continued to protect it where I could. Even at work, I tended to place more emphasis on using right shoulder/wrist. For instance, I distinctly remember using my right shoulder/wrist, as opposed to both limbs, to undertake duties including:

   a. Managing the assisted check outs area.

   b. Putting back loose stock.

   c. Ticketing.”

3. The applicant stated that in about April 2019, in the course of these duties, a customer had a seizure and grabbed her left arm, pulling heavily. She stated that this incident caused increasing shoulder pain, and an MRI scan diagnosed a retear of the rotator cuff. She wrote:

   “17. Once again, I was forced to use my right upper limb. Once again, I undertook the following duties/tasks almost exclusively with my right shoulder:

   a. Activities around the house including cleaning, laundry, washing the dishes,

   making the bed, and cooking.

   b. Driving.

   c. Carrying groceries.

   d. Personal care activities such as toileting, showering, getting dressed and tying

   up my hair.”

4. The applicant stated that on 14 November 2019 she underwent a tendon repair surgery but continued to suffer from a constant ache in the left shoulder which was “very limited”. She wrote: “19. As such, the position in relation to my left shoulder remained the same. I continued, as was my custom, to protect it, by overusing my right shoulder and wrist”.

5. The applicant stated that she was referred to Dr Jeffrey Hughes, orthopaedic surgeon, who conducted a left arthroscopic debridement surgery on 26 August 2020.  She underwent an Achilles tendon allograft tendon transfer on 7 October 2020. She wrote:

   “22. Again, this resulted in me having to protect my left shoulder by overusing my right shoulder with my usual activities.

   23. In late 2020, because of the ongoing restriction in my left shoulder, I started to

   experience symptoms in my right shoulder and wrist from overreliance and overuse.

   24. I noticed I was having further difficulties with activities I would usually rely on my right shoulder/wrist for such as lifting sheets up on the bed, getting dressed, driving, and even holding a cup for prolonged periods.”

6. The applicant stated that she was referred to hand specialist, Dr Mark Perko. On
   4 March 2021, she had a steroid injection in her right wrist which was followed up by carpal tunnel release surgery on 9 June 2021. She said that the symptoms in the left shoulder persisted and Dr Hughes initially recommended conservative treatment by way of rest, use of a sling and a strengthening and rehabilitation programme. She wrote:

   “30. Naturally during this period, I continued to protect my left shoulder. Indeed, a lot of the time, it was quite immobile.

   31. On 27 April 2022, I underwent a further left rotator cuff repair.

   32. It was around this time where I noticed my neck becoming stiff and sore again. The reason I say again, is because my neck was sore prior to this as well. I assume this was as a result of the way I tried to protect my left shoulder. This made me overuse my right shoulder/wrist, which placed extra strain on my neck.

   33. I remember complaining about my neck from time to time to my physiotherapist and they would massage it or try and help it. Nothing really ever helped.

   34. What I remember distinctly though is that the worse my shoulder was, the worse my neck would feel. All I can put this down to was the way I was trying to compensate for my left shoulder placed extra strain on my neck.”

7. The applicant stated that although Dr Machart, in his report of 12 April 2023, was correct in saying that she was not performing her usual duties at work at the onset of the symptoms in the right wrist and right shoulder, she continued to perform household activities relying on her right shoulder/arm. She said that she told Dr Marchart that she was trying to help around the house with activities she could still perform with one hand such as cooking and hanging out the washing. The applicant wrote:

   “46. This only seemed to aggravate my symptoms and in late 2020, I found I had increased difficulties performing personal care when washing my hair, getting dressed, driving and toileting. This led me to report my symptoms to my treating doctors.

   47. There has not been any further incident and I do not understand how there can be any other cause of my neck, right shoulder and right wrist symptoms.”

Statement of George Talevski

1. In a statement dated 7 July 2023, Mr Talevski, the applicant’s husband, said that prior to the injury in 2018, the applicant had no issues with her left shoulder, right shoulder or neck. He stated that following her first operation on 14 November 2018, her left shoulder was in constant pain and only deteriorated from that point onwards. He wrote:

   “7. She was very limited in what she was able to do with her left arm.

   8. Due to pain and restriction in her left shoulder, Sneza gradually developed pain and symptoms in her right shoulder/wrist and neck from overreliance and overuse.

   9. Following the initial injury to her left shoulder, she would still perform majority of the activities around the home by using her right arm such as washing the dishes, laundry and hanging up washing for example, by throwing the towels over the line with one hand and pegging them.

   10. When she gradually returned to work in April 2019, she was certified to work with restrictions and could only work by using her right arm.

   11. I would drop her off and pick her up and see that Coles stationed her in places where she could manage with one arm such as wiping down the trollies and machines (as it was during COVID), working the self-serve area and ticketing.

   12. After work, Sneza would raise how her right shoulder/ wrist was sore by overusing it and how her left shoulder remained in constant pain.”

2. Mr Talevski stated that in September 2022, he obtained a job as a truck driver to work permanent night shifts which allowed him to be at home during the day so he could help around the house. He wrote:

   “18. I do most of the activities around the home now, Sneza will still try to vacuum and dust the house but cannot manage for too long before her right shoulder/wrist and neck starts hurting.

   19. She cannot perform any overhead activities. I help her out with anything above the shoulders such as tying up or drying her hair.

   20. Her left shoulder remains significantly restricted.

   21, Whenever she turns to face me she complains of pain in her neck.”

Email from Jade Zorbas dated 22 January 2021

1. In an email dated 22 January 2021 to the applicant from Ms Jade Zorbas at Coles,
   Ms Zorbas noted that the applicant was experiencing pain in her right arm. She wrote:

   “Given we have approved the scan and cortisone last year for the right arm under your current claim, I think it best we continue to investigate this under your current claim…I am happy to approve an initial physiotherapy consultation to assess your current symptoms…”

Medical evidence

Medico-legal reports

1. In a report dated 17 January 2023, Dr Peter Giblin, orthopaedic surgeon, noted that the applicant underwent operations on her left shoulder on 14 November 2018,
   14 November 2019 and 26 August 2020. He noted she underwent an operation on
   7 October 2020 when an Achilles tendon allograft transfer was utilised and then another operation on 27 April 2022 to again repair the rotator cuff. Dr Giblin reported that about this time, the applicant noticed her neck became stiff and sore. He noted that her right shoulder became painful in late 2020 and she had developed right wrist pain about the same time.  He reported that the applicant had a steroid injection into the right wrist on 4 March 2021, which was followed up by surgery to release the thumb extensor tendons on 9 June 2012.

2. Under “Diagnosis”, Dr Giblin wrote:

   “Based on her history and examination, she has the provisional diagnosis of a soft tissue injury to the left shoulder, primarily related to the subject injury 23 August 2018.

   She has the diagnosis of a secondary or compensatory injuries to her cervical spine, right shoulder and right wrist, consequent upon the index injury to the left shoulder.”

3. Dr Giblin assessed 14% WPI of the left upper extremity (shoulder), 3% WPI for scarring under TEMSKI, 3% WPI of the right upper extremity (shoulder), no rateable impairment in respect of De Quervain’s disease and 5% WPI for the cervical spine.

4. In a supplementary report dated 3 August 2023, Dr Giblin noted that the applicant had undergone four operations to her left shoulder between 14 November 2018 to 27 April 2022. He noted that these operations were set upon a background of an overweight, deconditioned, middle aged lady with a working background and a culture of female compliance in relation to domestic duties. He wrote:

   “The asymptomatic right shoulder had age related changes which can be expected within that population demographic. As such they are a vulnerability per se.

   It is my clinical experience that consequential injuries in these settings, are common as opposed to being uncommon. Further, 10% of bilateral shoulder symptomatic injuries are associated with recurrent neck pain.

   Given that she is right hand dominant and the associated pressures under which she lives, in my view it is entirely conceivable that she sustained a gradual onset of a symptomatic soft tissue injury to the right shoulder while she favoured the left side which, to all events seems to have not been successfully cured from a symptomatic standpoint.

   Further, de Quervain’s disease is not an uncommon finding in people whose physical circumstances demand prolonged repetitive use of forearm, wrist and thumb. Given that she had a previous history of left sided de Quervain’s disease in 2014, it is a reasonable proposition that there was pre-existing vulnerability on the right side.

   For these reasons, it is my view that the left shoulder injury materially and directly contributed to the injuries to the right shoulder, right wrist and neck…”

5. In a report dated 12 April 2023, Dr Frank Machart, orthopaedic surgeon, noted that the applicant injured her left shoulder on 23 August 2018 and was operated on in November 2018 by Dr Jansen who performed a repair of the rotator cuff and biceps tenodesis.  He noted that she returned to work on light duties in April 2019 but a month later reinjured the left shoulder when a customer suffered a seizure and grabbed her left arm. Dr Machart reported that Dr Jansen performed a revision repair of the left rotator cuff in November 2019 with no benefit.

6. Dr Machart noted that some time after the second operation (November 2019), the applicant developed pain on the left side of the neck. He wrote: “She was not sure exactly when and there was no precipitating injury. She had physiotherapy”.

7. Dr Machart reported that the applicant developed pain in the right wrist which that she was told was due to “overuse”. She was treated by release of de Quervain’s tendons in 2021 with success. He wrote:

   “Right shoulder pain developed about 3 years later. She was told that it was due to overuse. I asked her to specify what overuse constituted. She said lifting pots when cooking, getting dressed, and putting out the washing as examples. She was not sure whether she had scans. She had physiotherapy. She was not sure about the diagnosis other than ‘overuse’.”

8. Dr Marchart made the following diagnosis:

   “The incident on 23 August 2018 caused a tear of the rotator cuff in the left shoulder. This was repaired; reasons for suboptimal results were not immediately apparent. There was recurrence through second injury. No benefit from second repair. No benefit from reconstruction, now left with a substantial dysfunction of left shoulder.

   There was muscular ache at the side of the neck. There was no intrinsic cervical injury.

   The right wrist was diagnosed as de Quervain’s disease subjected to release.

   Right shoulder was according to her diagnosis, overuse.

   I am not of the opinion there was overuse affecting the right wrist and right shoulder concurrently. She was not doing usual work at the time of the onset of symptoms. She has not worked since August 2020. It would be fair to say that she was doing less than she would have been otherwise indeed even with usual housework, she was limited. Overuse is commonly in medico-legal structures and overused in these circles as opposed what is evident in clinical practice. Evidence based medicine, documented in American Academy of Orthopaedic Surgeon publication on causation, second edition is not in support of overuse as a concept. This evidence was generated by examining multiple robust studies of the subjects. Reasons here contradicting this science were not immediately apparent and when analysed carefully, did not satisfy definitions of overuse.”

1. Dr Machart noted that it did not appear that there had been treatment for the cervical spine. He reported that the applicant stated that she did have some physiotherapy for the right shoulder.

2. Dr Machart assessed 12% WPI in respect of the right upper extremity (shoulder) and 2% WPI for scarring. He stated that he did not find connection between cervical spine and the right shoulder to the date of injury but for completeness, there were clinical indicators of DRE  category I of cervical condition which rated at 0% WPI and 2% for impingement in the right shoulder.

Reports and clinical notes from treating doctors and health professionals

1. In the Allied Health recovery request form for physiotherapy from Dr Mark Jones and
   Dr Hughes dated 5 February 2021, under clinical assessment the following was noted:

   “LEFT SHOULDER rotator cuff repair with persisting pain and stiffness - multiple operations

   Overuse RIGHT SHOULDER 1.5 years possible subacromial bursitis, August pain extended down to R elbow, from November through radial side of wrist probable symptoms of R DeQuervains tendiopathy, pt reports now very little use of R hand dropped coffee cup, difficulty with personal care eg washing hair, toileting, doing up bra (shoulder)”

2. Under “current signs and symptoms” the following was noted:

   “RIGHT SHOULDER: - elevation to 130 deg, HBB to bra strap, is just able to get bra on behind with shoulder pain, said too hard to pull around in front due to R wrist pain therefore persists usual way. External rotation reasonable strength, internal rotation wrist pain. Shoulder assessment limited by whole reported arm pain.

   RIGHT WRIST: - most significant area of pain is the R dorsal wrist, cannot touch over extensor or thumb abductor tendon area and patient describes tendon creaking that would support tendon pain. Patient had bought soft splint with proximal enclosure of proximal IPJ of R thumb but offered little rest to tendinopathy as not hard stay to prevent movement. I supplied her with an OPPO thumb brace with rigid support which might help with the dorsal wrist pain.

   Mrs Talevski was in tears for much of the appointment and visibly distressed due I believe to pain and also Husband was in hospital for a surgical procedure and away for four days, so Mrs Talevski would also be dealing with less home support.

   Questionaires: Pain Catastrophizing Scale (PCS) scored low so was not currently ruminating about not being able to get better, was low on self efficacy ie didn't feel was able to help herself to regain control over her symptoms and scored 10/10 for every item on Shoulder Pain and Disability Index ie highest pain ever and great disability with R shoulder arm (she stated worse than L arm problem has ever given her)

   Clinical impression: worsening upper R upper limb symptoms related to overuse, dorsal wrist pain has acutely flared up, is R dominant and has had x4 surgerys to L shoulder with probable greater reliance on R arm. ? acute flare R arm/wrist P on chronic pain syndrome. Mrs Talevska has legal representation, when asked why she stated because her R arm pain was not being approved for assessment nor treatment.

   Details of any pre-existing factor(s) directly relevant to the compensable injury

   Gave no past history prior to 2 years ago of R upper limb pain which is consistent with L shoulder issue timeframe.”

3. In a report dated 23 October 2023, Dr Mark Jones, sports physician, noted that the applicant first consulted him on 23 August 2018 and he had diagnosed a full thickness tear of the anterior supraspinatus muscle of the left rotator cuff, with intrasubstance component. He stated that the applicant complained of symptoms in her right shoulder, right wrist, and neck on 3 February 2020.

4. Dr Jones was asked to express his opinion on the cause of the applicant’s injuries to her right shoulder, right wrist, and neck and he wrote: “With the history of surgery to the left shoulder [sic], showed increasing pain on the right shoulder with impingement sign and biceps irritability. This would be secondary to overcompensation 15 months post-surgery and 18 months post-initial injury”.

5. Dr Jeffrey Hughes, treating orthopaedic surgeon, in a report dated 17 February 2021, noted that the applicant had developed what looked like a severe de Quervain’s “due to overuse of the right arm because the left arm has been out of use for a long time”. He wrote: “…the most likely diagnosis for this is an overload overuse de Quervain’s of the right thumb extensor”.  Dr Hughes referred the applicant to a hand surgeon, Dr Perko.

6. Dr Hughes in a report dated 4 August 2021 noted he had reviewed the applicant on
   3 August 2021 following the MRI of her left shoulder. He noted that a few millimetres below the tendoachilles graft there was a partial detachment of the teres minor which represented a new tear. He wrote: “I suspect this has occurred because of overload or overuse because she was unable to use her right arm.” (I note that the applicant had surgery on the right hand on 9 June 2021).

7. Dr Hughes, in a report dated 16 August 2023, noted that the applicant first consulted him on 30 July 2020 and there were no complaints of missed right shoulder symptoms and examination of the right shoulder was normal.  He noted that a complex reconstructive surgery was embarked upon over the ensuing years involving extended immobilisation of the left shoulder and reliance by the applicant on her right arm to perform all activities of self-care and home duties.  He wrote:

   “During this phase of rehabilitation, on a regular basis this patient reported in early January 2021 increasing right wrist symptoms and this necessitated referral to a hand surgeon (Dr Perko). In addition she complained of increasing right shoulder pain but no surgical treatment was contemplated because of the problems being experienced with the left and the need for at least one arm to care for her personal hygiene and activities of daily living.

   Over the ensuing years, it should be noted that this lady had no symptoms  in relation to her right shoulder in the 6 years whilst working a Coles and it is only since  she went down to having to use her right arm fully because of the work-related injury on the left that she started experiencing symptoms and on that basis, the clinical impression was that she, in fact, did have an overload/overuse problem with the right shoulder brought on  by the increased loads on the right shoulder that was dictated by management of her left shoulder condition.”

8. Dr Hughes, in a report dated 3 November 2023 noted that he had reviewed the applicant on 2 November 2023. He wrote: 

   “There has been a gradual deterioration in her ability to use the shoulder even with activities of daily living. At present her arm is in a sling because of the pain that she is experiencing. She still has significant external rotation weakness which makes the shoulder non-functional. Long term she will need a reverse total shoulder arthroplasty and the timing of this will be when she is willing to take on the next intervention. Even if a shoulder reverse is performed, it would be expected to provide good relief of pain but because her external rotation is poor, the functional benefit may not be as much as what she desires and unfortunately she is going to have to rely on her right shoulder more which is becoming more symptomatic.”

9. In a report dated 24 July 2023, Dr Perko, treating orthopaedic surgeon, noted that the applicant was referred to him for treatment of a right hand complaint and he was not involved in treatment of her shoulders or neck. He noted that the applicant provided a history of developing right shoulder pain 18 months prior for which she had a steroid injection. She described only minor symptoms in the right hand and elbow but since December 2020 she described more specific right elbow, hand and wrist pain. She described the more recent onset of clicking. She had difficulty with day to day activities. She also reported hand numbness and paraesthesia. She was provided with a thumb post splint by her treating hand therapist which she found beneficial.  Dr Perko noted that she underwent an ultrasound evaluation performed on 3 March 2021. The findings were consistent with a De Quervain's tenosynovitis and she underwent an ultrasound guided injection.

10. Dr Perko noted that there was only a small improvement following the injection and he recommended that she undergo release of the first dorsal compartment which was performed on 9 June 2021. He noted that the applicant recovered well from the surgery and her right thumb symptoms had almost completely subsided at the last review.

11. Dr Perko made a diagnosis of De Quervain's tenosynovitis. He wrote:

    “It is likely that due to the difficulty she had with her left arm and limited usage there has been an over reliance on the right hand. Although this would not normally be a direct causative affect, however in Ms Talevski's case, it is likely she has an underlying predisposition to develop a De Quervain's tenosynovitis and the over reliance has resulted in this condition.”

12. Mark Kesby, physiotherapist, in a report dated 9 September 2019, reported that the applicant tried some further physiotherapy over the past six weeks to her left shoulder and neck. 
    Mr Kesby noted that he had tried some soft tissue massage and stretching exercises for the neck and shoulder.

13. Stephen Campbell, physiotherapist, reported on 5 February 2021 that the applicant complained of pain in the right arm that started in the anterior shoulder “1.5 – 2 yrs” and noted that she was having lots of problems with the left shoulder and “was using R more”.  He noted that there was pain in the de Quervain’s area and she had not been able to use the hand for the last two weeks.

14. On 23 February 2021, Mr Campbell noted that right radio-dorsal pain had worsened. Treatment included soft tissue massage to the neck and right shoulder and a range of exercises to maintain right shoulder flexibility.

Discussion

1. Therefore, the matter to be determined is whether the conditions in right shoulder, right wrist and neck were consequential upon the accepted injury to the left shoulder on
   23 August 2018 and the aggravation at work in April 2019.

2. In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P stated at [462E]:

   “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.”

3. Further, Kirby P stated at [463]–[464]:

   “The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense 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.”

4. The High Court in Comcare v Martin [2005] HCA 26 (Martin) considered the extent to which one can rely on a “common sense approach”.

5. In Martin the High Court stated at [42]:

   “Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.”

6. In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 wherein it was stated:

   “[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.

   [97]   First, in March v Stramare (E&MH) Pty Ltd, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:

   ‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”

7. However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.

8. In Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49, Roche DP at [57] and [58] said:

   “57.   Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46 WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.

   58.    Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary ‘as a result of’ the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]- [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”

Right upper extremity - shoulder and wrist

1. The applicant has the onus of proving the consequential conditions in the right shoulder and right wrist. The respondent submitted that I could not be satisfied on the evidence that the applicant had developed conditions in the right shoulder and right wrist as a consequence of the injury to the left shoulder on 23 August 2018 and the aggravation of the left shoulder in April 2019. The respondent relied on the opinion of Dr Machart.

2. The applicant submitted that there was sufficient evidence for me to make a finding of secondary injury to the right shoulder and right wrist and relied on the opinions of Dr Giblin, Dr Perko and Dr Hughes.

3. There is no dispute that the applicant sustained an injury to her left shoulder on
   23 August 2018 and an aggravation to the left shoulder injury in April 2019.

4. Following the injury on 23 August 2018, the applicant was off work and underwent the first operation, a left rotator cuff repair, on her left shoulder on 14 November 2018. She stated that during this period she tended to favour her right arm because of the pain in the left shoulder and relied on her right arm for most housework including cooking, cleaning, vacuuming, mopping and laundry and also for personal care activities and driving. Following the first operation, the applicant stated that her left arm was in a sling and very sensitive and sore. She stated that this forced her to limit use of the left shoulder and she overused the right shoulder and right wrist in performing her usual activities.  The applicant started a gradual return to work program in April 2019. She stated that her left shoulder was still sore but getting better, but she was concerned that she would hurt it again. She stated that she tended to use her right shoulder and right wrist more when at work.

5. Later in April 2019, when a customer had a seizure and grabbed the applicant’s left arm, her rotator cuff in the left shoulder was re-torn. The applicant ceased work. The applicant stated that this injury caused an increase in pain. She stated that she continued to protect her left shoulder by overusing the right shoulder and wrist. She stated that she performed tasks and duties almost exclusively with her right shoulder including household activities, driving, carrying groceries and personal care. The applicant underwent surgery, a second operation, tendon repair surgery on the left shoulder, on 14 November 2019. However, she stated that she continued to suffer from a constant ache in the left shoulder and she continued to protect her left shoulder by overusing the right shoulder and right wrist.

6. The applicant underwent further surgery to her left shoulder, a left arthroscopic debridement, on 26 August 2020.  She stated that this resulted in her having to protect her left shoulder by overusing her right shoulder in her usual activities.  She stated that in late 2020 she started to experience symptoms in the right shoulder and right wrist from overreliance and overuse. The applicant noted that she had further difficulties with activities in which she relied on her right shoulder and right wrist such as making a bed, getting dressed, driving or even holding a cup. The applicant was referred to Dr Perko, hand surgeon, who performed surgery on the right hand on 9 June 2021.

7. The applicant stated that an MRI of the left shoulder on 27 July 2021 revealed a further tear in the rotator cuff. The applicant stated that she continued to protect her left shoulder and for a lot of the time the left shoulder was immobile. A fourth operation on the left shoulder was then carried out on 27 April 2022. 

8. The applicant has complained consistently of pain in the left shoulder since the injury on
   23 August 2018. She stated, and I accept, that over the years she had not been able to use her left shoulder and had been compensating by increased use of her right shoulder and right wrist and did most things using her right shoulder and right wrist.

9. I am satisfied that following the injury to her left shoulder, the applicant favoured her right shoulder and right wrist in carrying out her daily activities.

10. Dr Jones and Dr Hughes in the Allied Health recovery request form for physiotherapy dated
    5 February 2021, noted: “Overuse RIGHT SHOULDER 1.5 years possible subacromial bursitis”, and from “November pain through radial side of wrist probable symptoms of R DeQuervains tendiopathy”. Dr Jones and Dr Hughes formed the clinical impression of worsening upper right upper limb symptoms related to overuse, and acute dorsal wrist pain. Dr Jones and Dr Hughes wrote: “Gave no past history prior to 2 years ago of R upper limb pain which is consistent with L shoulder issue timeframe.”

1. Dr Jones was asked to express his opinion on the cause of the applicant’s injuries to her right shoulder, right wrist, and neck and he wrote:

   “With the history of surgery to the left shoulder [sic], showed increasing pain on the right shoulder with impingement sign and biceps irritability. This would be secondary to overcompensation 15 months post-surgery and 18 months post-initial injury.”

2. Dr Hughes was of the view that the applicant had developed what looked like a severe de Quervain’s “due to overuse of the right arm because the left arm has been out of use for a long time”. He wrote: “the most likely diagnosis for this is an overload overuse de Quervain’s of the right thumb extensor”.

3. Dr Hughes, whom the applicant first consulted on 30 July 2020, noted that a complex reconstructive surgery was embarked upon over the ensuing years involving extended immobilisation of the left shoulder and reliance by the applicant on her right arm to perform all activities of self-care and home duties.  He wrote:

   “During this phase of rehabilitation, on a regular basis this patient reported in early January 2021 increasing right wrist symptoms and this necessitated referral to a hand surgeon (Dr Perko). In addition she complained of increasing right shoulder pain but no surgical treatment was contemplated because of the problems being experienced with the left and the need for at least one arm to care for her personal hygiene and activities of daily living.

   Over the ensuing years, it should be noted that this lady had no symptoms  in relation to her right shoulder in the 6 years whilst working a Coles and it is only since  she went down to having to use her right arm fully because of the work-related injury on the left that she started experiencing symptoms and on that basis, the clinical impression was that she, in fact, did have an overload/overuse problem with the right shoulder brought on  by the increased loads on the right shoulder that was dictated by management of her left shoulder condition.”

4. Dr Hughes also observed that due to the left shoulder being non-functional, the applicant was going to have to rely on her right shoulder more which is becoming more symptomatic.

5. Dr Perko made a diagnosis of De Quervain's tenosynovitis. He wrote:

   “It is likely that due to the difficulty she had with her left arm and limited usage there has been an over reliance on the right hand. Although this would not normally be a direct causative affect, however in Ms Talevski's case, it is likely she has an underlying predisposition to develop a De Quervain's tenosynovitis and the over reliance has resulted in this condition.”

6. Dr Giblin noted that the applicant’s right shoulder became painful in late 2020 and she had developed right wrist pain about the same time. He reported that the applicant had a steroid injection into the right wrist on 4 March 2021 and that was followed up by surgery to release the thumb extensor tendons on 9 June 2012. Dr Giblin made a diagnosis of secondary or compensatory injuries to the right shoulder and right wrist, consequent upon the index injury to the left shoulder. Dr Giblin noted that the applicant had undergone four operations to her left shoulder between 14 November 2018 to 27 April 2022 and these operations were set upon a background of an overweight, deconditioned, middle aged lady with a working background and a culture of female compliance in relation to domestic duties. He considered that given that she was right hand dominant and the associated pressures under which she lives, it was entirely conceivable that she sustained a gradual onset of a symptomatic soft tissue injury to the right shoulder while she favoured the left side seemed not to have been successfully cured from a symptomatic standpoint. He noted that de Quervain’s disease was not an uncommon finding in people whose physical circumstances demand prolonged repetitive use of forearm, wrist and thumb. Dr Giblin considered that given the applicant had a previous history of left sided de Quervain’s disease in 2014, it was a reasonable proposition that there was pre-existing vulnerability on the right side. He concluded that the left shoulder injury materially and directly contributed to the injuries to the right shoulder and right wrist.

7. Dr Machart reported that the applicant developed pain in the right wrist which she was told was due to “overuse”. She was treated by release of de Quervain’s tendons in 2021 with success. He noted that right shoulder pain developed about three years later and was told that it was due to overuse. The applicant when asked what overuse constituted, said lifting pots when cooking, getting dressed, and putting out the washing as examples.

8. Dr Marchart noted that the right wrist was diagnosed as de Quervain’s disease and the right shoulder diagnosis, according to the applicant, was overuse. Dr Machart was not of the opinion there was overuse affecting the right wrist and right shoulder concurrently. He noted that the applicant was not doing usual work at the time of the onset of symptoms and considered it fair to say that she was doing less than she would have been otherwise even with usual housework as she was limited. Dr Machart referred to a publication that did not support overuse as a concept but no extract from the publication was attached to his report. He concluded that “reasons here contradicting this science were not immediately apparent and when analysed carefully, did not satisfy definitions of overuse”.

9. The respondent submitted that I should prefer the views expressed by Dr Machart as he took an evidence based approach and the other doctors had accepted overuse as causative without identifying the activities that created the symptoms in the right shoulder and right wrist.

10. The history recorded by a doctor does not have to correspond with complete precision with the facts. It is sufficient if the history provided a fair climate for the acceptance of the opinion offered (Paric v John Holland Constructions Pty Ltd [19842 NSWLR 505 at 509-510). The facts assumed do not have to be the true or real facts, but only the facts asserted. An expert must identify the “facts and reasoning process which he or she asserts justify the opinion” (AustralianSecurities and Investments Commission v Rich [2005] NSWCA 152). That is sufficient to enable the tribunal of fact to evaluate the opinions expressed (Hancock v East Coast Timber Products Pty Ltd (2011) NSWCA 11).

11. The applicant argued that Dr Machart’s view should be rejected as the history obtained by him was inadequate.  I accept that the history obtained by Dr Machart lacked detail. In particular, he did not record a complete history of all the four surgical procedures on the applicant’s left shoulder.  I consider that the number of operations to the left shoulder and the outcomes of these procedures were extremely significant when considering whether there was a consequential condition in the right shoulder and right wrist. The failure by Dr Machart to take a more detailed history has led me to place less weight on his opinion concerning causation of the conditions in the right shoulder and right wrist.

12. As noted above, I am satisfied that the applicant favoured her right shoulder and right wrist following the injury on 23 August 2018 and the aggravation in April 2019. Dr Giblin,
    Dr Hughes and Dr Jones formed the opinion that the right shoulder condition was consequential to the left shoulder injury at work on 23 August 2018 and the aggravation to the left shoulder in April 2019. Dr Giblin, Dr Perko and Dr Hughes formed the opinion that the right wrist condition was consequential to the left shoulder injury at work on 23 August 2018 and the aggravation to the left shoulder in April 2019.

13. I am satisfied that Dr Hughes and Dr Jones identified the activities that caused the increase in pain in the applicant’s right shoulder and right wrist. Dr Hughes referred to her needing at least one arm to care for her personal hygiene and activities of daily living. He noted that the clinical impression was that the applicant, in fact, did have an overload/overuse problem with the right shoulder brought on by the increased loads on the right shoulder that was dictated by management of her left shoulder condition.

14. The respondent argued that since the applicant was right arm dominant, the injury to her left shoulder would not have made a significant difference in terms of use of the right shoulder and wrist. I do not accept that submission as it was not supported, in my view, by any medical evidence. The applicant gave evidence, which I accept, of having to use her right shoulder and right wrist for most of her activities and personal care after the injury to the left shoulder on 23 August 2018.

15. The respondent also argued that the timeframe of the development of symptoms in the right shoulder and right wrist was not consistent with the symptoms being caused by consequential conditions caused by the injury on 23 August 2018 and the aggravation in March 2019. No reference was made to any medical evidence concerning the timeframe which would support this submission. The only evidence concerning the timeframe appears to be that given by Dr Jones and Dr Hughes in the Allied Health recovery request form for physiotherapy dated 5 February 2021, where they wrote: “Gave no past history prior to 2 years ago of R upper limb pain which is consistent with L shoulder issue timeframe.”

16. On balance, I have preferred the evidence of Dr Giblin, Dr Hughes and Dr Jones to that of
    Dr Machart for the reasons given above. In addition, I have placed more weight on the opinions of Dr Hughes and Dr Jones as they were treating doctors, who had reviewed the applicant on numerous occasions.

17. In summary, I am satisfied that it was more probable than not that the pathology in the right shoulder and right wrist was causally related to the injury of the left shoulder on
    23 August 2018 and the aggravation in April 2019. I am satisfied on the balance of probabilities that the right shoulder condition and right wrist condition were caused by overuse when favouring the left arm as a consequence of the left shoulder injury on
    23 August 2018 and the aggravation in April 2019.

18. I find that the applicant suffers from consequential conditions of the right shoulder and right wrist as a result of the injuries to the left shoulder on 23 August 2018 and the aggravation in April 2019.

Cervical Spine

1. As noted above, there is no dispute that the applicant sustained an injury to her left shoulder on 23 August 2018 and an aggravation to the left shoulder injury in April 2019.  The issue to be determined is whether the applicant sustained a consequential condition in the cervical spine as a result of the injury to her left shoulder on 23 August 2023 and the aggravation in April 2019.

2. The respondent submitted that I could not be satisfied on the evidence that the applicant had developed a condition in the cervical spine as a consequence of the injury to the left shoulder on 23 August 2018 and the aggravation in April 2019.

3. The applicant stated that she underwent a further left rotator cuff repair on 27 April 2022 and it was around that time she noticed her neck “becoming stiff and sore again”. She said that the neck was sore prior to that time and she had assumed it was as a result of the way she tried to protect her left shoulder, by overusing her right shoulder and right wrist, which placed extra strain on her neck. The applicant recalled complaining about her neck from time to time to her physiotherapist who would massage the neck but nothing really helped. She stated that she remembered that the worse her shoulder was, the worse her neck would feel.

4. Dr Jones noted that the applicant first consulted him on 23 August 2018 and complained of symptoms in her right shoulder, right wrist, and neck on 3 February 2020. However, when  asked to express an opinion on the cause of the applicant’s injuries to her right shoulder, right wrist, and neck, he only considered that increasing pain on the right shoulder with impingement sign and biceps irritability was secondary to overcompensation 15 months post-surgery and 18 months post-initial injury. Dr Jones made no comment in relation to the neck and the cause of any symptoms in the neck.

5. Dr Hughes and Dr Perko made no reference to the cervical spine in their reports, which was not unexpected given the focus of the treatment provided by them.

6. Dr Giblin noted that the applicant said her neck became stiff and sore about the time of the operation on 27 April 2022.  He made a diagnosis of a secondary or compensatory injury to the cervical spine, consequent upon the index injury to the left shoulder. He noted that in his clinical experience that consequential injuries in these settings were common as opposed to being uncommon, and 10% of bilateral shoulder symptomatic injuries were associated with recurrent neck pain.

7. Dr Machart noted that some time after the second operation in November 2019, the applicant developed pain on the left side of the neck. He wrote: “She was not sure exactly when and there was no precipitating injury. She had physiotherapy”. Dr Machart reported that the applicant had muscular ache at the side of the neck but there was no intrinsic cervical injury. Dr Machart noted that it did not appear that there had been treatment for the cervical spine. He stated that he did not find connection between cervical spine to the date of injury.

8. The physiotherapists, Mr Campbell and Mr Kesby, both reported providing treatment to the applicant’s neck as well as other treatment to the shoulders. However, neither expressed a view on causation of any symptoms in the neck.

9. The only medical evidence in support of the applicant’s claim relating to a consequential condition in the cervical spine was that from Dr Giblin.

10. The reasoning provided by Dr Giblin in relation to the cervical spine was not detailed and he did not adequately identify the facts and reasoning process which justified the opinion he expressed in relation to a consequential condition of the cervical spine. Indeed, Dr Giblin stated that 10% of bilateral shoulder symptomatic injuries were associated with recurrent neck pain, which did not, in my view, assist the applicant in establishing a causal link between the injury to the left shoulder and symptoms in the neck. Unlike the reasons provided in respect of the right shoulder and right wrist, no reasons were provided by
    Dr Giblin that addressed the mechanism of any consequential condition in the neck. There was no evidence that supported, in my view, the proposition that the injury to the left shoulder had resulted in “overuse” of the neck.

11. In summary I am not persuaded that it was more probable than not that the pathology in the cervical spine was causally related to the injury to the left shoulder on 23 August 2018 and the aggravation in April 2019.

Summary

1. This matter is remitted to the President for referral to a Medical Assessor for assessment of whole person impairment of the left upper extremity (shoulder), right upper extremity (shoulder), and scarring/Temski as a result of the injury on 23 August 2018 and the aggravation in April 2019.

2. Award for the respondent in respect of the claim in relation to the cervical spine.

3. The respondent is to pay the applicant’s s 60 expenses in respect of the consequential conditions in the left shoulder, right shoulder, right wrist and scarring as a result of the injury on 23 August 2018 and the aggravation in April 2019.