Tomanovic v Woolworths Group Limited
[2021] NSWPIC 443
•1 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Tomanovic v Woolworths Group Limited [2021] NSWPIC 443 |
| APPLICANT: | Snezana Tomanovic |
| RESPONDENT: | Woolworths Group Limited |
| MEMBER: | Philip Young |
| DATE OF DECISION: | 1 November 2021 |
| CATCHWORDS: | WORKERS COMPENSATION – Accepted right shoulder injury but applicant claims additional left shoulder consequential condition; on the facts and noting Mason v Demasi, Palise v ANZ Banking Group Limited and Kooragang Cement Pty Limited v Bates and the existence of only one fleeting complaint of left shoulder problems over several years despite numerous opportunities; Held - applicant has not discharged the onus; award for the respondent. |
| DETERMINATIONS MADE: | 1. Award in favour of the respondent in respect of the applicant’s claimed left shoulder consequential condition. |
STATEMENT OF REASONS
Background
Mrs Snezana Tomanovic (the applicant) is a 53-year-old lady who was employed by Woolworths Group Ltd (the respondent) as a full-time store person. The applicant alleges injury to her right shoulder, which is not disputed to have occurred on 14 December 2013 whilst the applicant was lifting a heavy box in the course of her employment.
The current claim is pursuant to section 66 of the Workers Compensation Act1987 (the 1987 Act) seeking lump sum compensation for whole person impairment. The matter is contested by the respondent because it does not accept that the applicant suffered a consequential left shoulder condition. The respondent by section 78 notice says accordingly that the applicant’s assessment of whole person impairment, to the extent that it relies upon the left shoulder condition, does not meet the threshold required by section 66 (1) of the 1987 Act.
Issue
The central issue is whether the applicant suffered a consequential condition to her left shoulder as a result of favouring the use of her left shoulder whilst her right shoulder was undergoing treatment, surgery, and rehabilitation.
The matter is further complicated by the fact that on 2 September 2017 the applicant was involved in a non-work-related motor vehicle accident when the car which she was driving was hit in the rear by another motor vehicle. It is not disputed by the applicant that she made a claim in respect of this motor vehicle accident concerning injury to her neck, back and both shoulders.
Evidence before the Commission
The following documents were admitted into evidence and were before the Commission:
(a) Application to Resolve a Dispute and attachments lodged 1 September 2021 (Application),
(b) Reply and attachments lodged 23 September 2021 (Reply), and
(c) Application to Admit Late Documents and attachments lodged 14 September 2021.
No oral evidence was given.
Procedure before the Commission
The matter came for conciliation and arbitration hearing before the Commission by audio visual link on 20 October 2021. Mr J Jobson of counsel instructed by Ms B Laggas appeared for and with the worker. Mr S McMahon of counsel instructed by Mr S Patterson appeared for the respondent.
The matter proceeded to conciliation conference at which the various issues were discussed and an effort was made to attempt to achieve resolution of the matter. Regrettably, those discussions were not fruitful. I was satisfied that I used my best endeavours to attempt to effect a resolution, to no avail. That being the case, the jurisdiction of this Commission to proceed to arbitration hearing was enlivened.
Submissions
Both counsel made oral submissions and those submissions were sound recorded and are available to the parties upon request to the Commission. Where relevant to the decision made in this matter, they will be outlined in the reasons which follow.
DISCUSSION AND REASONS
Preliminary factual matters
The applicant has provided a statement dated 31 August 2021. She confirms that she completed a degree in economics in 1991 and came to Australia in 1994. She commenced employment with the respondent in 2010. The applicant details the injury which she sustained on 14 December 2013.
The applicant returned to work on 15 December 2013 but her right shoulder was bad enough for her to see her general practitioner, Dr Gounder, two days later. She had an MRI scan that day and then went back to work on light duties. On 4 January 2014 Dr Gounder referred the applicant to Dr Dave, orthopaedic surgeon.
The applicant returned to work on light duties and continued working with pain medication. She saw Dr Dave on 16 January 2014 and was referred for further investigations. Dr Dave recommended physiotherapy. The applicant returned to see Dr Gounder on 30 January 2014 and was sent to physiotherapy. On 17 February 2014 she underwent a further MRI scan.
The applicant returned to see Dr Gounder on 24 February 2014 with increased pain in the right shoulder. The applicant states[1] that at this time she also had pain in her left shoulder. By 22 March 2014 she states she had two sore shoulders. She was keen to return to work, she says, so as not to give reason to the company to terminate her services. By April 2014 she was working four days per week, five hours per day.
[1] Applicant’s statement at paragraphs 24 and 25, Application page 8.
Pausing at this point, whilst the applicant’s statement refers to a painful left (as well as right) shoulder on 24 February and 22 March 2014, in the paragraphs just mentioned the applicant does not say that she told Dr Gounder on these dates about her left shoulder problems.
On 13 August 2014 Dr Dave performed an operation on the applicant’s right shoulder. The applicant had eight weeks off work, physiotherapy and a follow-up MRI scan on 3 December 2000. By that stage the applicant was working seven hours per day, four days per week.
The applicant underwent further consultations with Dr Dave and Dr Gounder and then in February 2015 made another complaint to Dr Gounder. She went overseas between about October and November 2015 and continued physiotherapy on her return.
On 2 September 2017 the applicant was involved in the motor vehicle accident earlier mentioned. The vehicle she was driving was hit in the rear by another vehicle and there is no dispute that in this accident the applicant injured her neck, back and both shoulders. She was off work for two days and then returned to work on 5 September 2017 but the employer sent her home. Her employment was subsequently terminated. She brought a claim in respect of the motor vehicle accident and this claim settled in about September 2019.
In about August 2020 the applicant obtained work as a carer/companion working limited hours per week.
Section 78 dispute notice
The respondent’s insurer declined liability on 26 March 2021. The foundation for the declinature was that the applicant had not suffered any consequential left shoulder condition and that in the absence of establishing that condition, the applicant did not meet the threshold to make a claim pursuant to section 66 (1) of the 1987 Act.
The declinature letter went on to add that the applicant made no complaint of consequential left shoulder pain or symptoms from 14 December 2013 until a scan on 6 October 2017, one month after her September 2017 motor accident. The notice observed that the applicant was certified fit for pre-injury duties in 2016. The scan taken on 6 October 2017 showed a full thickness tear of the applicant’s left shoulder. Dr Myers in his report in relation to the motor vehicle accident noted a history that the applicant’s right shoulder, before the motor vehicle accident, was “completely normal” and there were “no issues with the left shoulder” before the motor vehicle accident.
The respondent in its dispute notice also relied upon a medical opinion from Dr Rimmer of 10 March 2021 which claimed there was no consequential left shoulder condition. It added that Dr Guirgis in his first report had assessed 7% whole person impairment after deductions and then in a later report certified 15% whole person impairment but only allowed the statutory 10% deduction for each shoulder impairment.
The applicant’s general practitioner is Dr Gounder. As mentioned, the applicant in her statement says that when she presented to Dr Gounder at consultation 24 February 2014 she had pain in her left shoulder and her evidence is that by 22 March 2014 she had two sore shoulders.
Complaints of left shoulder pain and/or symptoms
It would appear that the applicant’s first complaint of pain in her left shoulder which was recorded was on consultation with Dr Gounder on 26 February 2015. The applicant’s general practitioner examined her left shoulder on that day[2] and noted mild tenderness of the applicant’s left shoulder. Contemporaneously, Dr Gounder issued a WorkCover medical certificate on that day. There is an entry in a medical certificate issued by Dr Gounder on or about 27 February 2015 which certifies no work capacity from 27 February 2015 but also that the applicant was experiencing “more” pain in the left shoulder.
[2] Application p 89.
Mr G G Milazzo, physiotherapist, was requested by the insurer to prepare a report in terms of independent physiotherapy assessment. The report is dated 14 September 2015. In this report Mr Milazzo noted no restrictions in terms of the applicant’s left shoulder and on examination[3] flexion, extension, abduction, internal rotation, external rotation and hand behind back displayed no restrictions.
[3] Ibid p 194.
Allcare Physiotherapy (Ms Zena Mardini) reported on 25 September 2014[4] that treatment of the applicant had commenced on 13 September 2014. There is no recorded history of left shoulder problems in this report.
[4] Ibid p 183.
Move Physiotherapy (Ms Jemma Leickas) treated the applicant on at least 20 December 2016, 13 February 2017 and 14 February 2014[5]. The treatment appears to be for the applicant’s right ankle and foot. When asked about her general health it is reported that the applicant replied “I have a cold” and that she had seen her “GP 2/7 ago for it”.
[5] Ibid p 186.
Mr Jobson in his submissions detailed the applicant’s gradual return to normal duties following the injury and over a period of the next few years. He pointed to the applicant’s description of the duties which the applicant was required to perform on her return to work, as detailed in her statement and not controverted by any evidence from the respondent. The applicant was on many occasions during this return to work required to use her left arm to perform the allocated duties. Many of the duties were very difficult, it can be inferred, for a person with only one useful arm to perform. The applicant says that in January 2015 she explained to Dr Gounder that she found that she was using her left arm extensively.
The fact that the applicant was described by Dr Gounder as experiencing “more pain” in her left shoulder on 26 February 2015 has been suggested by Mr Jobson to mean that the left shoulder pain commenced earlier than 26 February 2015. That is one interpretation, but in my view the possible alternative is that “more” means pain in addition to the right shoulder pain. In the absence of some further clarification from Dr Gounder, the entry is at best ambiguous.
Some medical certificates were referred to from March and April 2014[6] to support that the applicant’s capacity was not to use the right-hand at all and this continues in medical certificates up until July 2014. It follows, it was submitted, that the applicant was favouring the use of her left hand because she was certified not to use the right hand. The applicant’s submission is that the motor vehicle accident in 2017 made her left shoulder worse, but was not the genesis of the pain or symptoms.
[6] Application pp 205-208.
Between 14 December 2013 and 26 February 2015 the applicant consulted her general practitioner (mostly Dr Gounder) on no less than 37 occasions. On none of these consultation records is there any complaint recorded concerning left shoulder pain, symptoms or disability.
On 26 February 2015 Dr Gounder’s entry is:
“26/2/15 pain in her (L) shoulder because she is compensating the (L) shoulder because of the pain in her (R) shoulder. O/E has mild tenderness in her (L) shoulder, no swelling, normal movements”
Between 26 February 2015 and 3 September 2017 the applicant consulted her general practitioner (mostly Dr Gounder) on no less than 25 occasions. On none of these consultation records is there any complaint recorded concerning ongoing, or even intermittent, left shoulder pain, symptoms or disability.
From 11 May 2015 until 2 March 2016 the applicant underwent rehabilitation and a “return to work” plan with “Workers Health Centre”[7]. Documents the subject of this rehabilitation plan were admitted into evidence at the teleconference. They demonstrate that the applicant was being monitored almost every month from 11 May 2015 to 2 March 2016. There are at least 14 points of contact between Occupational Therapist Rigan Wong (on one occasion on 15 October 2015 by Mr G Lazaridis) but none of the 14 reports mention the applicant experiencing any left shoulder pain or disability.
[7] See Applicant’s AALD dated 14 September 2021.
What is clear from the rehabilitation reports is that by Return to Work Program number 12 on 2 March 2016[8] the proposal was for the applicant to trial pre-injury duties. Dr Gounder had issued medical certification on 27 February 2016[9] and 16 March 2016[10] and there appear to be no further medical certificates after that time until after the motor vehicle accident in September 2017. That the applicant sometime in March 2016 returned to pre-injury duties until after September 2017 is confirmed by the List of Workers Compensation payments made[11] as well as the applicant’s own statement that she was relying on pain medication to perform her duties[12] and her lifting restriction had been increased to 15 kilograms[13].
[8] Ibid, p 102 at p 103.
[9] Application p 278.
[10] Ibid p 282.
[11] Ibid at pp 301ff.
[12] Ibid p 10 namely Applicant’s statement at para 55.
[13] Ibid at para 52.
On the applicant’s own evidence[14], in April 2016 the applicant asked Dr Gounder to finalise her workers compensation file. She offers a plausible reason for this request[15], namely that she could not tolerate the pressure to return to work. However, the fact remains that she did perform her work between April 2016 and September 2017 and I am of the opinion that this adds weight to the proposition that the applicant was not suffering any consequential condition concerning her left shoulder during this time.
[14] Ibid at para 51.
[15] Ibid.
Medical evidence
Dr Myers was the assessor who saw the applicant following her motor vehicle accident. He expressed the opinion that the applicant had sustained soft tissue injury to her left and right shoulders but also came to the view that it was highly unusual for any soft tissue injury to have occurred, particularly to the left shoulder, from the motor vehicle accident[16].
[16] Ibid p 159.
Dr Robinson saw the applicant for Employers Mutual Ltd in the context of her workers compensation claim. Dr Robinson obtained a history of injury to the right shoulder in 2013.
Following surgery to the right shoulder the applicant developed a frozen right shoulder. It was submitted by Mr Jobson that it can be inferred that this condition would only result in use of the applicant’s left arm, shoulder and hand on more occasions. That is a logical submission in my view but it is nonetheless one which must be weighed up with all other evidence, including the absence of recorded complaint.
Dr Pierides saw the applicant in the context of her motor vehicle accident claim. That doctor took the view that the pre-accident ultrasound had revealed a tear of the applicant’s right shoulder. The findings on the left shoulder were not related to the motor vehicle accident in doctor’s opinion[17].
[17] Ibid p179.
Dr M Guirgis saw the applicant twice and his conclusion regarding the applicant’s left shoulder consequential condition is contained at pages 38-39 and 57 of the Application. In his final report Dr Guirgis claims that the applicant symptoms and signs are consequential and result from a favoured use of the applicant’s left arm which was then complicated by consequential condition to the left shoulder.
Dr S Rimmer reported as an Independent Medical Examiner. Dr Rimmer did not have the clinical notes of Dr Gouder, nor the applicant’s history of seeing Dr Gouder in 2015 and complaining of left shoulder pain, nor the medical certificates setting out the applicant’s complaints of left shoulder pain. To that extent, Dr Rimmer’s report presents with some deficiencies. Doctor Rimmer relies upon the applicant having undergone a scan on 6 October 2017 but he is not in possession of detailed medical evidence material to the left shoulder condition between 2014 and the motor vehicle accident in September 2017.
An additional problem with Dr Rimmer’s evidence is that he has not considered the possibility of overcompensation and how this potentially affects the applicant’s presentation in respect of her left shoulder condition.
Mr McMahon for the respondent submitted that in order for the applicant to succeed it was necessary to establish that the symptoms and restrictions of the applicant’s left shoulder had resulted in whole or in part from the right shoulder injury. It follows from Kooragang[18] that an unbroken causal chain is necessary. Mr McMahon submitted that there were two reasons why there was a break in the causal chain.
[18] Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
The first reason was that the only complaint regarding left shoulder problems was on 26 February 2015. Additionally, that complaint was fleeting and the complaint did not continue beyond that specific date so that 26 February 2015 was an isolated complaint.
The second reason was that there was strong evidence from the applicant’s own reporting that there were no problems with the applicant’s left shoulder from 26 February 2015 until the motor vehicle accident in September 2017.
Mr McMahon pointed to several gaps in the applicant’s evidence which he said made the applicant’s case deficient. These were:
(a) there are no consultation notes in evidence from Dr Dave. Pursuant to Jones[19] it can be inferred that those records would not have assisted the applicant, and
(b) the absence of corroboration. There is very little corroborative evidence concerning the frequency of the applicant’s complaints. There are particular and extensive time references and one would have expected to see some record of complaint of left shoulder problems. It is of course appropriate under Mason[20] to view clinical records with caution. However, it is also necessary to place some weight on clinical notes in terms of the picture painted by the applicant in her statement[21]. It is very unusual to see such a number of treating practitioners have not recorded complaints of left shoulder pain or disability. It is therefore necessary to treat the content of the applicant’s statement with the utmost care.
[19] Jones v Dunkel (1959) 101 CLR 298.
[20] Mason v Demasi [2009] NSWCA 227.
[21] Palise v ANZ Banking Group Limited [2018] NSWWCCPD 13 per Keating P.
Dr Myers saw the applicant on 21 February 2019 in respect of the September 2017 motor vehicle accident. The applicant said her right shoulder was completely normal prior to the motor vehicle accident and she had no issues with her left shoulder. The applicant told
Dr Myers that “she had had no issues with any part of the vertebral column or of the left shoulder”[22]. There was no problem with the left shoulder prior to the motor vehicle accident, the physiotherapist’s record of 14 September 2015[23] notes normal shoulder movement, the reference to “more pain shoulder” could be a description of more pain in addition to the right shoulder, and the history makes it clear that the applicant did not have problems with either shoulder before the motor vehicle accident, or at least those problems had entirely resolved.[22] Reply p 31.
[23] Application p 193.
In terms of Dr Guirgis’ opinion, in his first report of 30 November 2018 he makes no mention of pre-existing left shoulder problems and provides an opinion supportive of the applicant’s right and left shoulders problems being caused by the motor vehicle accident. In his second report of 7 August 2019 he looks at the mechanism of injury and claims that the motor vehicle accident was the cause of the applicant’s shoulder complaints.
Dr Guirgis in 2020 was provided further information by the applicant’s solicitors which resulted in two further reports from Dr Guirgis of 9 October 2020. Significantly, in my view, whilst Dr Guirgis was given the report of Dr Myers of 25 February 2019 (and hence the history within it) he makes no mention of this history in arriving at his conclusion that the applicant’s left shoulder overcompensated for her injured right shoulder. Additionally,
Dr Guirgis was not equipped with the extensive general practitioners’ notes, nor the report of Mr Milazzo, physiotherapist, of 14 September 2015. That being so, I am of the opinion that Dr Guirgis’ sudden change in diagnosis in his report of 9 October 2020 is without sufficient explanation and analysis of all of the material evidence, such that I give it little weight.I would add that the choice of wording by Dr Guirgis in his 9 October 2020 report is also cautious, perhaps touching on some scepticism. His attribution of the applicant’s left shoulder symptoms to be consequential to the work-related right shoulder injury is prefaced[24] by the proviso: “If one accepts her complaints in the uninjured left shoulder to be genuine…” so that not only is Dr Guirgis’ opinion a provisional one, it is arrived at without the benefit of important contemporaneous evidence:
“If one accepts her complaints in the uninjured left shoulder to be genuine, one would attribute such symptoms to be consequential to the work-related right shoulder injury on the basis of being consequential over-compensation effects on the contralateral left shoulder as she favoured the use of the contralateral arm in the DLAs and other activities to minimise the pain felt on using the injured painful ipsilateral shoulder. The situation here was also complicated by an injury to the left shoulder in the 2017 road traffic accident”[25].
[24] Ibid p 39.
[25] ibid
In the result, I have come to the view that the applicant has not satisfied the onus for the following reasons:
(a) the applicant made only one isolated complaint of shoulder pain to her general practitioner on 26 February 2015;
(b) Dr Gourdner’s reference to “more pain” in the medical certificate she issued on 27 February 2015 is at best ambiguous;
(c) Mr G G Milazzo, physiotherapist, in a report dated 14 September 2015 noted on examination no restrictions in relation to the applicant’s left shoulder;
(d) Ms Mardini, physiotherapist in September 2014 obtained no history of left shoulder problems;
(e) Ms Leickas, physiotherapist, treated the applicant in December 2016 and February 2017 for an unrelated matter but when she questioned the applicant’s general health did not receive any complaint regarding the applicant’s shoulders;
(f) between 14 December 2013 and 25 February 2015 the applicant consulted general practitioners, mostly for her right shoulder, on no less than 37 occasions, without a single complaint regarding her left shoulder;
(g) from 27 February 2015 until 2 March 2016 the applicant consulted general practitioners, mostly for her right shoulder, on no less than 25 occasions, without a single complaint concerning her left shoulder;
(h) almost monthly from 11 May 2015 to 2 March 2016 the applicant had 14 points of contact with Occupational Therapists concerning her return to work plan. Again, none of the reports mention left shoulder problems;
(i) the applicant returned to her normal work between about March 2016 and the motor vehicle accident in September 2017, thereby suggesting at least no worsening of left shoulder problems;
(j) the history given to Dr Myers on 21 February 2019 was that there were no issues with the applicant’s left shoulder before the motor vehicle accident;
(k) the motor vehicle accident was of some significance in terms of both of the applicant’s shoulders and this is demonstrated by the escalation in treatment and investigations concerning the left shoulder after it occurred in September 2017;
(l) there are no consultation records in evidence from Dr Dave. There are, however, a series of reports from Dr Dave which make no mention of left shoulder pain or disability[26], and
(m) the impact of Dr Guirgis’ opinion and diagnosis in his reports of 9 October 2020 is considerably weakened in my opinion by his opposite conclusion in his earlier reports in support of the applicant’s motor vehicle claim.
[26] Application pp 133-148
For these reasons, there will be an Award in favour of the respondent in respect of the applicant’s claimed left shoulder consequential condition.
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