Vivaldo v Uniting Church in Australia t/as Lucan Care
[2010] NSWWCCPD 41
•20 April 2010
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Vivaldo v Uniting Church in Australia t/as Lucan Care [2010] NSWWCCPD 41 | ||||
| APPELLANT: | Marianne Vivaldo | ||||
| RESPONDENT: | Uniting Church in Australia t/as Lucan Care | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-7578/09 | ||||
| ARBITRATOR: | Ms N Serventy | ||||
| DATE OF ARBITRATOR’S DECISION: | 8 January 2010 | ||||
| DATE OF APPEAL DECISION: | 20 April 2010 | ||||
| SUBJECT MATTER OF DECISION: | Compensation for a consequential loss; evidence; unsatisfactory preparation of case and appeal by applicant’s solicitor | ||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | PK Simpson & Co | |||
| Respondent: | Ellison Tillyard Callanan | ||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 8 January 2010 is revoked and the following orders made: “1. As a result of injuries sustained to the worker’s knees in the course of her employment with the respondent employer on 31 March 1999, the worker has suffered an aggravation of osteoarthritis in her left shoulder and tendonitis in both shoulders. 2. The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities of permanent loss of efficient use of the applicant worker’s left arm at or above the elbow and permanent loss of efficient use of the applicant worker’s right arm at or above the elbow. The evidence to be forwarded to the Approved Medical Specialist is to include all documents included in the Commission’s file, except for the applicant worker’s statement of 30 November 2009 and reports from Dr Stenning dated 8 February 2001, Dr Matalani dated 24 October 2003, Dr Kwong dated 3 February 2004 and Dr Bedi dated 5 February 2001. 3. The applicant’s claim for medical expenses is discontinued. 4. The respondent employer is to pay the applicant worker’s costs as agreed or assessed.” | ||||
| The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $500.00 plus GST. | |||||
BACKGROUND
The appellant worker, Ms Vivaldo, started work in about 1996 for the respondent employer, Uniting Church in Australia trading as Lucan Care, as a personal care assistant. On 31 March 1999, she fell at work and injured her knees and her left index finger.
The worker underwent surgery to her right knee on 18 August 1999, when Dr Solomon performed a partial medial meniscectomy and chondroplasty. The surgery revealed a complex tear to the posterior horn of the medial meniscus and Grade III-IV changes on the medial femoral condyle, and Grade III changes in the patellofemoral joint on both sides. Though Ms Vivaldo was significantly better following that procedure, she continued to experience pain and restriction in both knees.
In 2001, Ms Vivaldo claimed lump sum compensation in the former Compensation Court of NSW. That claim was settled on 15 August 2002 in the sum of $15,000 in respect of 20 per cent permanent loss of use of the right leg at or above the knee, $1,800 in respect of 10 per cent permanent loss of use of the left index finger, $3,750 in respect of 5 per cent permanent loss of use of the left leg at or above the knee, and $3,000 in respect of 5 per cent permanent impairment of the back. The payment for the back arose from an impairment that resulted from Ms Vivaldo’s altered gait because of her knee injury.
Ms Vivaldo claimed weekly compensation in the Commission in 2004. In a Certificate of Determination issued on 21 December 2004, the Commission ordered the respondent to pay weekly compensation from 8 November 2002 to date and continuing, together with section 60 expenses upon production of receipts and/or accounts. So far as I am aware, those payments continue.
Ms Vivaldo’s knees continued to deteriorate. She underwent surgery on her left knee in 2007 and, most likely, will require further surgery on her right knee. Because of her knee symptoms, Ms Vivaldo started using a walking stick. She also found that, due to the weakness of her knees, she had to “lever” herself up from chairs. As a result of that activity, she alleges that she developed symptoms in her shoulders.
On 13 May 2009, Ms Vivaldo’s solicitors claimed lump sum compensation on her behalf in respect of a 15 per cent permanent loss of efficient use of the right arm at or above the elbow, and a 10 per cent permanent loss of efficient use of the left arm at or above the elbow, both losses alleged to have resulted from the injury to her knees.
In a section 74 Notice dated 20 August 2009, the respondent employer’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’), disputed liability on the ground that the alleged “shoulder injuries” were not related to the injury on 31 March 1999 “as required by sections 4 and 9A of the Workers Compensation Act 1987”. Allianz relied on evidence from Dr Bosanquet, orthopaedic surgeon, in a report dated 27 July 2009, to the effect that Ms Vivaldo suffered no loss of use of her right shoulder, and that any loss of use of her left shoulder related solely to “the ageing process and an underlying degenerative condition”.
In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 21 September 2009, Ms Vivaldo sought lump sum compensation under the Table of Disabilities in the sum of $12,000 in respect of a 15 per cent permanent loss of efficient use of her right arm at or above the elbow, and $7,500 in respect of a 10 per cent permanent loss of efficient use of her left arm at or above the elbow. She also claimed compensation for additional pain and suffering.
The Application was extremely poorly drafted. It described the alleged injuries as follows:
“Head, neck, right arm, left arm/hand, abdomen, back, right leg, right knee, left leg, left knee, bowel function, sexual function and anxiety and/or depression.”
Practitioners are again reminded that applications in the Commission should, so far as possible, be consistent with the evidence. The evidence in the present case is that Ms Vivaldo injured her knees and her left index finger when she fell in 1999, and that, as a result of those injuries, she has developed symptoms in both shoulders. The current particulars in Part 4 of the Application are nonsense and bear no relation to the evidence or the current claim.
The Commission listed the matter for conciliation and arbitration on 7 December 2009. The matter proceeded with lengthy submissions from the parties’ legal representatives, but no oral evidence.
In a reserved decision delivered on 8 January 2010, the Arbitrator concluded that Ms Vivaldo had not discharged the onus of proving that the condition of her shoulders had resulted from her knee injuries in 1999, and she made an award for the respondent. The Commission issued a Certificate of Determination on 8 January 2010 in the following terms:
“The Commission determines:
1. Award for the Respondent in respect of the claim for lump sum compensation for the loss of use of both right and left upper extremities (shoulders) together with compensation for pain and suffering.
2. The Applicant discontinues her claim for medical expenses and the need to file a notice of discontinuance is dispensed with.
3. No order as to costs.”
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the monetary thresholds in sections 352(2) of the 1998 Act are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE EVIDENCE
Ms Vivaldo’s evidence is recorded in her statement of 21 September 2009. This statement has been poorly drafted and repeats the sweeping and unsustainable allegations of injury in the Application referred to at [9] above. The reality is that Ms Vivaldo injured her knees and left index finger when she stumbled and fell whilst walking up a flight of stairs in the course of her employment with the respondent on 31 March 1999. Her right knee injury was the more serious injury, and she underwent surgery in August 1999, followed by physiotherapy. She returned to light duties briefly, but was unable to cope with those duties. The respondent terminated her employment in 2000 because of her inability to perform her pre-injury duties.
Ms Vivaldo’s symptoms and disabilities have increased since 1999. In respect of her shoulder symptoms, she stated (at [17]):
“As time has progress[ed] my symptoms and injuries have become worse. I have to use a walking stick all the time. Due to the weakness in my knees I have found that from having to lever myself up together with the constant use of the walking stick I have symptoms in both shoulders. I have received physiotherapy treatment for the left shoulder which the insurer has paid for.”
Ms Vivaldo attended on Dr Tayar, general practitioner, at the Macauley Street Practice on 25 August 2004. The doctor’s clinical notes record:
“(L) shoulder sore 2/52; ? from getting into car. PH MVA. Abdn. 90º/worse going down.
? SS tendonitis. Try Vioxx 125 nocte.”
Ms Vivaldo saw Dr Ling, general practitioner at a different practice, on 26 August 2004. The doctor’s notes record, among other things, “1984 MVA & whiplash ? disc injury. 3wk h/o L sh P, no incident”.
The entry for 25 August 2004 also recorded a complaint of cramps behind the right knee, and that Ms Vivaldo wanted to see a chiropractor. The next recorded entry by Dr Tayar about the shoulders was on 24 May 2006. It reads:
“24/5/06 (1) shoulders sore now because of using hands to get up
(2) V. down
(3) X-Ray (3/4/06) – (R) knee – medial narrowing awake all night [with] cramps in post thigh/popliteal fossa
Can walk 100 m then rests
(4) Ref. V Renna
* W/C form
13/6/06 (R) shoulder sore 3/7; having chiro
General ? lateral. Can’t sleep [with] it
? 2º to pushing out of low chairs. → U/S X-Ray
(L) a bit sore lately too21/6/06 SS partial tear [with] calcific tendonitis
→ N. McGill
Start Glucosamine/9/day.”
An x-ray of the right shoulder on 13 June 2006 addressed to Dr Tayar revealed sclerosis and irregularity at the greater tuberosity, but no evidence of soft tissue calcification. An ultrasound of the right shoulder performed on 19 June 2006 (on referral from Dr Tayar) revealed a partial tear of the supraspinatus and calcific tendonitis with biceps tendonitis.
As a result of persistent right knee symptoms, Ms Vivaldo developed symptoms in her back and increased symptoms in her left knee that resulted in surgery to her left knee in 2007.
Dr Bosanquet examined Ms Vivaldo at the request of Allianz on 17 March 2008 and reported on 20 March 2008. He took a history that Ms Vivaldo injured both her knees when she tripped and fell at work in March 1999. He noted that her right knee was causing her difficulty with her sleep because of cramping. Walking was very painful and restricted. She had been using a walking stick for two years. She had no pain-free days. She experienced pain walking up stairs, and avoided kneeling and squatting.
Dr Bosanquet conceded that the 1999 injury aggravated an underlying condition (medial compartment and patellofemoral osteoarthritis) in the right knee, but the aggravation had ceased and the worker’s continuing pain was due to “open natural deterioration of the arthritic process”. The only long-term treatment was a total knee replacement, though he did not feel that the insurance company was responsible for that.
Dr Terry Kwong, consultant physician and rheumatologist, examined Ms Vivaldo at the request of Dr Tayar on 20 November 2008. In his report of that date, he recorded that the worker’s knee pain had progressively worsened, and that she was due to have a right total knee replacement. He noted that she had been required to use a walking stick “for a few years” and could only walk for less than 10 minutes. She had difficulty vacuuming, gardening, cleaning, and needed assistance with shopping.
Whilst Ms Vivaldo has tendered multiple copies of dozens of medical reports, only two are directly relevant to the claim. They are the reports from Dr Mastroianni, occupational physician, dated 6 March 2009, and Dr Manohar, consultant physician, dated 12 January 2009.
Dr Manohar saw Ms Vivaldo on 12 January 2009 on referral from her general practitioner, Dr Tayar. He took a history of the 1999 fall, but only recorded that she injured her right knee in that accident, which continued to cause her difficulties. He noted her presenting problems in January 2009 to be pain in the right knee, left knee, low back and left shoulder. Ms Vivaldo felt that she had developed left shoulder pain by “repetitively pushing herself out of a chair”. Dr Manohar expressed no opinion on causation.
Dr Mastroianni examined Ms Vivaldo on 6 March 2009 and reported to her solicitors on the same day. He took an accurate history of the March 1999 fall in which she struck her knees on stairs at work and also twisted her left index finger. Ms Vivaldo complained of pain in her knees, lower back and shoulders. As a result of her knee pain, she had problems with stairs, squatting, kneeling and bending. She complained that she had lost strength in her legs and was unable to stand from a chair without supporting herself. The doctor recorded:
“As she has been supporting herself to get up from chairs, she has now developed pain in both shoulders, left worse than right.”
Dr Mastroianni recorded that the worker had been involved in a car accident in the 1980s in which she injured her neck and left shoulder. She said that she had recovered from those injuries. Her shoulders had “become symptomatic as her knee condition deteriorated preventing her from standing from a chair without supporting herself and taking her weight on her arms”.
On examination, Dr Mastroianni noted that the worker was overweight and that she walked with the aid of a walking stick, favouring her right leg. Both shoulders were tender, the left more tender than the right. The left shoulder had moderate “crepitations”. Both shoulders had a restricted range of movement, the left worse than the right.
Under “Opinion”, Dr Mastroianni noted that both Ms Vivaldo’s knees were painful and showed evidence of osteoarthritis. In respect of the shoulder symptoms, he stated:
“As a result of her favouring the knees and having difficulty getting up from the chairs where she has to support herself and use her arms as well as the use of a walking stick, she has developed [a] mechanical lower back problem and also painful shoulders.”
Dr Mastroianni added under “History of the Incident” that it was his opinion that the mechanical low back problem and the painful shoulders were a “sequelae of her knee injury”. He diagnosed her to have osteoarthritis in her left shoulder that had been aggravated by her using her arm to support herself in standing from a seated position and also from using her walking stick. He also diagnosed her to have tendonitis in both shoulders “as a result of her having to support herself getting up from” chairs. He added that her previous left shoulder condition had been made symptomatic again by her having to “put pressure on the arms to get up from a sitting position”.
In answer to the question, “What caused the current condition?” Dr Mastroianni stated:
“Her current condition is the result of the injury sustained at work. The knee injuries were a direct result of the fall. Her back condition and shoulder condition is a sequelae on the injury. The back problem is a result of the abnormal gait and the shoulder problem is a result of her having to use a walking stick and support herself as she gets up from the chair, as she is unable to get up without lifting her body, taking the body weight on her arms.”
Dr Bosanquet reviewed Ms Vivaldo on 23 July 2009, and reported to Allianz on 27 July 2009. On this occasion, Dr Bosanquet took a history that Ms Vivaldo had symptoms in both shoulders and her low back. He attributed those symptoms to having to push herself up from a chair and to an altered gait using a walking stick. He recorded that the back pain had been of gradual onset. The left shoulder had been injured “years ago in a motor vehicle accident”.
Ms Vivaldo complained of constant pain at the top of her shoulders, radiating to the elbows. She had no pain-free days and was unable to lie on her shoulders. She did not do much housework, particularly vacuuming or cleaning the bathroom. It was noted that she also suffered from vertigo/Ménière’s disease.
On examination, Dr Bosanquet recorded that Ms Vivaldo had a full range of movement of her right shoulder, but restrictions in her left shoulder.
Though Dr Bosanquet examined radiological investigations for both knees and the lumbar spine, he did not see or comment on the 2006 investigations of the right shoulder. He concluded that she had a rotator cuff problem with her left shoulder, but no problem in her right shoulder “that has a full range of movement”. The doctor was asked whether, “Any shoulder injuries result[ed] from the work injuries suffered in the fall on 31 March 1999?”. The doctor responded that he saw no connection between the worker’s left shoulder condition and the 1999 fall.
Dr Bosanquet then recorded the following at page seven of his report:
“In regards to the shoulder’s [sic] condition, is it reasonable to state that these conditions have substantially arisen from the injury of 31 March 1999 caused through the need to apply excessive force to lift herself out of chairs and [the] use of [a] walking stick as suggested in Dr Mastroianni’s report? Or, in your opinion, would this be related to the pre-existing degenerative back condition?
No – as I have stated above, I do not believe there is any connection between the injury of 31 March 1999 and her shoulder problems.
Ms Vivaldo’s problems in the shoulder are totally due to pre-existing degenerative changes, as are the problems in her lumbar spine.” (emphasis included in original)
THE ARBITRATOR’S REASONS
In her Statement of Reasons (‘Reasons’) delivered on 8 January 2010, the Arbitrator recorded that the respondent did not dispute that Ms Vivaldo injured her knees, left index finger and her back in the 1999 fall. The Arbitrator identified the issues remaining in dispute as follows:
“Whether Ms Vivaldo’s knee condition still results from her right knee injury.
Whether Ms Vivaldo’s shoulder conditions result from her right knee injury.”
As the Arbitrator determined that the shoulder conditions had not resulted from the 1999 injury, she did not determine whether the right knee condition continued to result from the original injury in 1999. In the alternative, if she was wrong on that issue, she was satisfied, based on the award of compensation for permanent loss of efficient use in 2002, that the aggravating effects of the 1999 injury on the knees had not ceased.
In respect of the shoulder conditions, the Arbitrator reviewed the evidence and noted:
(a)apart from the clinical notes, there was no evidence from Ms Vivaldo’s treating doctors to support her case;
(b)though Ms Vivaldo regularly saw specialists, there was only one reference to the shoulder in any of their reports;
(c)whilst Dr Manohar took a history of pain in the left shoulder in January 2009, he did not examine the shoulder, and provided no opinion. He did not refer to the shoulder in his subsequent reports;
(d)Ms Vivaldo made no mention of any shoulder problems when she saw Dr Bosanquet on 20 March 2008;
(e)it appears from the general practitioner’s notes that Ms Vivaldo was referred to a specialist (for her shoulders), but there was no report from a specialist, or evidence that she attended one;
(f)no specialist had interpreted the investigations of the right shoulder;
(g)the respondent did not concede that it ever paid for physiotherapy to the shoulders. There were no physiotherapists’ reports in evidence dealing with the shoulder symptoms, and
(h)Ms Vivaldo had failed to discharge the onus of proving that her shoulder condition resulted from her knee injury in 1999.
The Arbitrator based her ultimate conclusion on the fact that Ms Vivaldo provided “very little detail in relation to the onset of her symptoms and no explanation about her visits to the two general practitioners and the different histories given”. Also, there was no detailed explanation in the medical reports of the causal connection between her shoulder condition and the knee injury or how the need to lift herself out of chairs could have caused a shoulder condition that appeared to have waxed and waned, and move from one shoulder to the other.
She noted that neither of the qualified medical experts dealt with “other factors” that may have been affecting the situation, such as Ms Vivaldo’s Ménière’s disease. There was no evidence of any treatment by a physiotherapist or a chiropractor for the shoulder problem and no evidence of any complaint to any treating or medico-legal doctor about the shoulder problems between 2006 and 2009, and no explanation about that from Ms Vivaldo. The Arbitrator concluded that Ms Vivaldo had not made out her case.
SUBMISSIONS, DISCUSSION AND FINDINGS
The submissions filed on behalf of Ms Vivaldo are so poorly drafted as to be almost incomprehensible. Essentially, it seems to have been submitted that the Arbitrator erred in:
(a)failing to make an award for the worker for injury to the left upper extremity;
(b)making an award for the respondent employer on the basis that there was little contemporaneous or other complaint in relation to the injury to the shoulders;
(c)finding that the lack of complaint about the shoulders to Dr Ling had to be explained;
(d)misdirecting herself when she stated that there were only four complaints of shoulder pain to doctors;
(e)misdirecting herself on the evidence about complaints of shoulder pain, and
(f)failing to consider the matter on the basis of the whole of the evidence, rather than on a “misconceived reading” of doctors’ entries in their clinical notes.
It was argued that the Arbitrator erred in considering that Dr Ling’s evidence needed to be explained. The absence of complaint to Dr Ling was explained, so it was argued, because the doctor saw the worker for a motor vehicle accident where the injury was spinal “so he enquired no further about the shoulder pain not related to that visit”. As best I can understand it, it seems to be argued that, when Ms Vivaldo saw Dr Ling on 26 August 2004, she did not seek to connect her shoulder pain to getting out of chairs, but denied it related to the 1984 motor vehicle accident. However, Dr Tayar’s entry in 2006 set out the mechanism of injury and there was no requirement that complaints must be “constant and regular”. It was submitted that the Arbitrator misdirected herself when she said there were only four complaints of shoulder pain to the doctors. Ms Vivaldo’s complaint would be expected to come on gradually and was secondary to her more serious knee complaints.
It was further submitted that the Arbitrator “clearly misdirected herself” on the evidence at [38] of her Reasons. Unfortunately, it was not explained how she had misdirected herself. The next sentence of the submissions referred to Dr Tayar’s evidence in his notes in 2006, which referred to the worker having had to use her arms to get out of low chairs.
In sharp contrast to the submissions filed on behalf of Ms Vivaldo, the respondent’s solicitor has taken considerable care and time to prepare logical and succinct submissions. It was submitted on behalf of the respondent that:
(a)the worker’s appeal amounts to no more than an assertion that the Arbitrator was wrong to find that she had not discharged the onus of proof;
(b)the worker’s submission on appeal as to why Dr Ling recorded no explanation for the shoulder pain when her saw her on 26 August 2004 (see [48] above) is unsupported by any evidence. Dr Mastroianni recorded that Ms Vivaldo injured her neck and left shoulder in the motor vehicle accident in 1984 and Dr Bosanquet recorded that she injured her left shoulder “years ago”. Dr Ling gave no evidence that he saw Ms Vivaldo on 26 August 2004 for a motor vehicle accident;
(c)contrary to the worker’s submissions, the Arbitrator did not say (at [34] of the Reasons) that she considered Dr Ling’s evidence needed to be explained. She said that the worker had not provided evidence as to why she attended on Dr Ling one day after seeing Dr Tayar and why the histories to those doctors were different;
(d)there is no evidence from which the Commission could infer that the reason for the absence of a complaint to Dr Ling on 26 August 2004 (as to the cause of the shoulder pain) was the reason now suggested by Ms Vivaldo’s solicitor on appeal;
(e)the worker’s submission that Dr Bosanquet “did not accept that the injury had happened in the way described” was incorrect. Dr Bosanquet concluded that the shoulder symptoms were “totally due to pre-existing degenerative changes”;
(f)the Arbitrator did not misdirect herself by looking at the clinical notes and reports of treating doctors to see whether, and when, Ms Vivaldo complained of shoulder pain and to see what history was then recorded. A history recorded contemporaneously with the complaint of pain is relevant to the determination of whether the worker has established, on the balance of probabilities, that there was a causal connection between the injury in 1999 and the present shoulder problems. It is clearly relevant that Ms Vivaldo complained of pain in one shoulder or another in only August 2004, May/July 2006 and January 2009, and on no occasion did the doctor recording the complaint note any history of injury in 1999, or any history of an ongoing condition. The infrequency of recorded complaint is significant, given the frequency of the worker’s attendances on Dr Solomon for treatment for the injury;
(g)the Arbitrator did not misdirect herself at [38] of her reasons, but referred to the submissions made by counsel for the respondent and to the fact that, apart from “isolated instances of complaint”, there was no evidence from the worker’s treating doctors in support of her claim, and
(h)the Arbitrator’s decision should be confirmed and leave to appeal refused because the worker’s submissions have failed to demonstrate any error, or that any symptoms in her shoulders constitute an “injury” within the definition of section 4 of the 1987 Act. It is unclear if the aggravation referred to by Dr Mastroianni consists of a pathological change or merely consists of the pre-existing asymptomatic shoulder arthritis becoming symptomatic. That a degenerative condition worsens with the passage of time does not mean that what the patient is doing at the time of the increase in symptoms has caused the condition or made it worse; the condition deteriorates of its own momentum (Lyons v Master Builders Association of NSW (2003) 25 NSWCCR 422) and what is demonstrated is “manifestation not causation, revelation not genesis” (per Windeyer J in Darling Island Stevedoring and Lighterage Co Ltd v Hussey [1959] HCA 55; (1959) 102 CLR 482 (‘Hussey’) at 520).
It is first appropriate to note the nature of the claim. Ms Vivaldo is not alleging that she injured her shoulders in the March 1999 incident. It is therefore not necessary for her to establish that she suffered an “injury” to her shoulders within the meaning of that term in section 4 of the 1987 Act. She is claiming compensation for a consequential loss. That is, a loss that she alleges has resulted from her previous compensable injury to her knees (see Roads & Traffic Authority (NSW) v Malcolm (1996) 13 NSWCCR 272). To succeed, she has to establish that the symptoms and restrictions in her shoulders have resulted, in whole or in part, from the effects of the 1999 injury. The test of causation in a claim for lump sum compensation is the same as it is in a claim for weekly compensation, namely, has the loss “resulted from” the relevant work injury (see Sidiropoulos v Able Placements Pty Limited (1998) 16 NSWCCR 123; Rail Services Australia v Dimovski & Anor [2004] NSWCA 267; (2004) 1 DDCR 648).
Though the worker’s submissions on appeal have been less than helpful, and the standard of preparation of Ms Vivaldo’s case in general has been appalling, I have concluded that the Arbitrator erred in her approach and conclusion. For the reasons set out below, I am satisfied that, on the balance of probabilities, Ms Vivaldo has made out her case that her shoulder symptoms and conditions have resulted from her 1999 injury. Though the worker will succeed with the appeal, that is in spite of, and not because of, the efforts of her legal advisers.
The evidence in support of Ms Vivaldo’s claim is brief but clear. It is undeniable that she injured her knees in the 1999 incident (the right worse than the left) and that, as a result of her injury, her knee symptoms have increased significantly since then. The evidence is clear that her knee symptoms have seriously affected her ability to walk, climb stairs and to mobilise generally. I am comfortably satisfied that those symptoms and restrictions have resulted from the damage sustained in 1999, which caused a significant permanent loss of efficient use of each leg. In light of the settlement in 2002, Dr Bosanquet’s conclusion that the aggravating effect of the 1999 injury has ceased is completely untenable. His dogmatic and unreasoned conclusion on this issue undermines the weight of his evidence about Ms Vivaldo’s shoulders, which is dealt with at [64] below.
As a result of the deterioration in Ms Vivaldo’s knees, she started using a walking stick about 2004 or 2005. She has also experienced difficulty getting out of chairs, though precisely when that difficulty started is not dealt with in the evidence. Given the condition of her knees, and her weight, it is perfectly consistent that she would require a walking stick and have difficulty lifting herself from chairs. Dr Tayar’s note on 25 August 2004 that Ms Vivaldo had shoulder pain for two weeks “? From getting into [a] car” is not necessarily inconsistent with the worker experiencing difficulties getting out of chairs. However, it certainly would have been of assistance if Ms Vivaldo had given evidence about that incident rather than leaving it to the Commission to attempt to reconstruct the history.
It is clear that, on 26 August 2006, Dr Ling took a history of the 1984 motor vehicle accident in which Ms Vivaldo suffered a “whiplash ? disc injury” and that she had experienced left shoulder pain for three weeks prior to her attendance, but without any precipitating incident. It would have been of great assistance if Ms Vivaldo had given evidence about this attendance and it is most unsatisfactory that she did not. However, I do not accept that Dr Ling’s notes so undermine that worker’s case that she must fail. It may well be that she did not appreciate the cause of her shoulder symptoms at that time. It is also possible that she did not consider getting up from chairs to be an “incident”. The answer is not known because of the unsatisfactory state of the evidence. The submission by Ms Vivaldo’s solicitor that, because the doctor saw the worker for a motor vehicle accident, where the injury was spinal, “he enquired no further about the shoulder pain not related to that visit” is unsupported by any evidence and appears to have been invented to make up for a lack of proper preparation. Though Dr Ling’s notes are not determinative, they require that Ms Vivaldo’s claim be assessed with care to determine if any independent evidence supports it.
Dr Tayar’s notes of May and June 2006 provide persuasive and independent corroboration of Ms Vivaldo’s claim that she developed pain in both shoulders in the circumstances she alleges, namely, as a result of using her arms to lift herself when getting up from a seated position. Given the nature and extent of her serious knee disabilities, it is logical and consistent that Ms Vivaldo would take her weight on her arms and shoulders while getting up from chairs. That is exactly what Dr Tayar recorded. It would have been of great assistance to the Commission if a report had been obtained from Dr Tayar, but the failure to do so is not fatal to the claim.
Dr Tayar referred Ms Vivaldo for investigations and, consistent with her complaints, the ultrasound of the right shoulder revealed a partial tear of the supraspinatus tendon, calcific tendonitis and biceps tendonitis. This evidence, together with Ms Vivaldo’s brief and barely adequate evidence, is sufficient to establish that she experiences the symptoms she alleges. It is of no consequence that no specialist has commented on these investigations. The next question is whether those symptoms resulted from the undisputed injury to the knees in 1999.
The Arbitrator erred in stating that there was no detailed explanation of the causal connection between the shoulder symptoms and the knee injury. Dr Mastroianni took a consistent history of the onset of the shoulder symptoms and concluded that the symptoms resulted from her having to put pressure on her arms while getting up from a seated position. Whilst his explanation was brief, it was clear and succinct, and satisfied the test in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 in that it explained the basis for his conclusion.
The Arbitrator also erred to the extent that her conclusion was based on a concern that neither of the qualified medical experts dealt with “other factors” that may be affecting the situation, such as Ms Vivaldo’s Ménière’s disease. Ménière’s disease causes deafness, ringing in the ears, dizziness and a sensation of fullness or pressure in the ears. It could not possibly have any relevance to the current complaint of shoulder pain.
The absence of evidence from a treating physiotherapist or chiropractor is not determinative. The question is whether Ms Vivaldo has established her case on the balance of probabilities. Though it would have been helpful to have reports from a treating physiotherapist or chiropractor, the absence of such reports is not fatal to the claim.
It is far from clear that Dr Tayar referred Ms Vivaldo to a specialist for her shoulders, or, if he did, whether she saw that specialist. To the extent that the Arbitrator relied on the absence of a report from a specialist to draw an adverse inference against the worker under Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, she erred.
The absence of complaints of shoulder symptoms to a doctor between 2006 and 2009 is not decisive. Ms Vivaldo consulted doctors in that period for her knee symptoms. That they did not record any complaint of shoulder symptoms is not surprising and does not mean that Ms Vivaldo had no such symptoms.
Based on the evidence from Ms Vivaldo and Dr Mastroianni, I accept that, over time since 2004, Ms Vivaldo has experienced pain and restrictions in her shoulders as a result of having to lift herself from chairs with her arms and use a walking stick. Both activities resulted from the weakness in her knees that resulted from the 1999 incident. The causal chain between the 1999 injury and the shoulder complaints is unbroken and, as a matter of common sense, I am comfortably satisfied that Ms Vivaldo’s shoulder symptoms have resulted from the 1999 injury (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452). I accept Dr Mastroianni’s evidence that Ms Vivaldo having to lift herself out of chairs with her arms, and having to use a walking stick, caused an aggravation of osteoarthritis in the left shoulder and tendonitis in both shoulders. An aggravation of disease occurs when it is made more grave or more serious in its effects upon the worker (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 637 and 639).
Dr Bosanquet’s evidence is unpersuasive. His opinion that all of Ms Vivaldo’s problems with her knees, back and shoulders are due to pre-existing degenerative changes is untenable. That opinion is inconsistent with the consent award in favour of Ms Vivaldo in respect of her knees and back, and ignores Ms Vivaldo’s evidence that her shoulder symptoms either commenced or were aggravated by having to place weight on her arms in the course of getting up from chairs and/or while using a walking stick. Dr Bosanquet did not deal with Ms Vivaldo’s allegations, or with the findings in the 2006 ultrasound. He did not consider the possibility of a connection between Ms Vivaldo’s shoulder complaints and the stress of lifting her body from chairs with her arms rather than her legs, but merely dismissed her complaints as being “totally due to pre-existing degenerative changes”. Given the history of the onset of symptoms in the circumstances alleged by Ms Vivaldo and the absence of a reasoned explanation by Dr Bosanquet in support of his conclusion, I do not accept his evidence.
I do not accept that Ms Vivaldo’s shoulder symptoms are merely a revelation of pre-existing degenerative changes in her shoulders. That argument ignores the stress placed on her shoulders by having to lift herself with her arms, as opposed to her legs, and ignores the absence of complaints before 1999. It also ignores the fact that Ms Vivaldo has suffered no other relevant injuries to her shoulders and that she recovered from the effects of the 1984 motor vehicle accident. In the absence of evidence of any other trauma to the shoulders, it is clear that Ms Vivaldo’s shoulder symptoms have resulted from the effects of the 1999 injury to her knees. The symptoms did not merely worsen with the passage of time, but were either caused or aggravated by her having to place excessive weight on her shoulders because of the effects of her 1999 injury. It is well established that there is an aggravation of a disease if it is made more grave or more serious in its effects upon the patient (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 637 and 639).
CONCLUSION
Having conducted a review on the merits, I have determined that the Arbitrator erred in her approach and conclusions in this matter and that the true and correct position is that, as a result of the 1999 injury to Ms Vivaldo’s knees, she has developed symptoms in both shoulders and she is entitled to have her claim for lump sum compensation referred to an Approved Medical Specialist for assessment under the Table of Disabilities.
I repeat my concern at the lack of proper preparation of Ms Vivaldo’s case by her solicitors and the unsatisfactory submissions made by them on appeal. If solicitors are not prepared to conduct the most basic preparation of cases, they should not practice in the jurisdiction. The time put into the preparation of the appeal by Ms Vivaldo’s solicitors will be reflected in the costs order I make below. In contrast to the submissions filed by Ms Vivaldo’s solicitors, the submissions filed on behalf of the respondent were detailed, well researched and clearly expressed. It is not appropriate, however, that I certify the quantum of costs recoverable by the respondent’s solicitors. Those costs are a matter for agreement with their client, or assessment. The figure assessed below for Ms Vivaldo’s solicitor’s costs does not reflect my view of the proper figure for costs for the respondent’s solicitor.
DECISION
The Arbitrator’s determination of 8 January 2010 is revoked and the following orders made:
“1.As a result of injuries sustained to the worker’s knees in the course of her employment with the respondent employer on 31 March 1999, the worker has suffered an aggravation of osteoarthritis in her left shoulder and tendonitis in both shoulders.
2.The matter is remitted to the Registrar for referral to an Approved Medical Specialist for assessment under the Table of Disabilities of permanent loss of efficient use of the applicant worker’s left arm at or above the elbow and permanent loss of efficient use of the applicant worker’s right arm at or above the elbow. The evidence to be forwarded to the Approved Medical Specialist is to include all documents included in the Commission’s file, except for the applicant worker’s statement of 30 November 2009 and reports from Dr Stenning dated 8 February 2001, Dr Matalani dated 24 October 2003, Dr Kwong dated 3 February 2004 and Dr Bedi dated 5 February 2001.
3.The applicant’s claim for medical expenses is discontinued.
4.The respondent employer is to pay the applicant worker’s costs as agreed or assessed.”
COSTS
The respondent employer is to pay the appellant worker’s costs of the appeal, assessed at $500.00 plus GST.
Bill Roche
Deputy President
20 April 2010
I, TUYET WALLIS, 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
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