Wiltshire v Cram Fluid Power Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wiltshire v Cram Fluid Power Pty Ltd [2022] NSWPIC 169
APPLICANT:	Stacey Brett Wiltshire
RESPONDENT:	Cram Fluid Power Pty Ltd
MEMBER:	20 April 2022
DATE OF DECISION:	Jacqueline Snell
CATCHWORDS:	WORKERS COMPENSATION - The applicant makes a claim for permanent impairment compensation payable under section 66 of the Workers Compensation Act 1987 for injury to the left wrist and consequential injury to the right wrist, right shoulder, left shoulder and cervical spine; alleged consequential injury to the right wrist, right shoulder, left shoulder and cervical spine placed in issue; Held– the applicant has sustained consequential injury to his right wrist and right shoulder resulting from injury sustained to his left wrist in the course of his employment with the respondent; award for the respondent in respect of alleged consequential injury to his left shoulder and cervical spine; the applicant’s claim for permanent impairment compensation resulting from injury sustained by the applicant to his left wrist and consequential injury to his right wrist and right shoulder, as agreed or determined, is remitted to the President for referral to a Medical Assessor for the purposes of assessment of whole person impairment.
DETERMINATIONS MADE:	1. The applicant has sustained consequential injury to his right upper extremity (right wrist and right shoulder) resulting from injury sustained to his left wrist on 5 December 2016 in the course of his employment with the respondent. 2. Award for the respondent in respect of the allegations of consequential injury to the left upper extremity (left shoulder) and cervical spine resulting from injury sustained by the applicant to his left wrist on 5 December 2016 in the course of his employment with the respondent. 3. The applicant’s claim for permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 is remitted to the President for referral to a Medical Assessor for assessment of permanent impairment resulting from injury sustained by the applicant to his left upper extremity (left wrist) on 5 December 2016 in the course of his employment with the respondent and consequential injury to his right upper extremity (right wrist and right shoulder), as agreed or determined by the Commission. 4. The documents to be forwarded to the Medical Assessor with this Certificate of Determination and Statement of Reasons are: a. Application to Resolve a Dispute and attached documents, and b. Reply and attached documents.

STATEMENT OF REASONS

BACKGROUND

The applicant, Stacey Brett Wiltshire (Mr Wiltshire) was employed by the respondent, Cram Fluid Power Pty Ltd (Cram Fluid) between 2014 and 2017. He worked as an hydraulic fitter. His duties involved delivery as well as making hoses. Mr Wiltshire is currently 62 years of age.
In these proceedings Mr Wiltshire claims permanent impairment compensation payable under s 66 of the Workers Compensation Act 1987 (1987 Act) for 18% whole person impairment (WPI) resulting from injury he sustained to his cervical spine, left upper extremity (wrist and shoulder) and right upper extremity (wrist and shoulder) in the course of his employment with Cram Fluid. Mr Wiltshire alleges the circumstances of injury in the following terms:
“On 5 December 2016, the Applicant was applying a spiral cord to a hydraulic cord when his left hand became caught in the spiral guard machine, causing significant injury to his left wrist. The Applicant also sustained injury to his left wrist as a result of the heavy and repetitive nature and conditions of his employment.
In addition to the above, the Applicant sustained consequential conditions to his right wrist, right shoulder, left shoulder and cervical spine as a result of the overcompensating for his left wrist injury”.
Mr Wiltshire’s claim for permanent impairment compensation is declined and he has been issued with notice dated 10 September 2020[1] in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act 1998. While injury to Mr Wiltshire’s left wrist is not disputed, alleged consequential injury to his right wrist, right shoulder, left shoulder and cervical spine is placed in issue. Relevant to Mr Wiltshire’s left wrist injury, under cover of letter dated 10 September 2020[2] an offer was made to resolve his claim for permanent impairment compensation for 12% WPI resulting from injury to his left wrist, which was rejected by Mr Wiltshire.
[1] Application to Resolve a Dispute (ARD) at p 13.
[2] ARD at p 37.

ISSUES FOR DETERMINATION

The parties agree the following issues remain in dispute:
(a) whether Mr Wiltshire has sustained consequential injury to his right wrist, right shoulder, left shoulder and cervical spine as a result of the injury he sustained to his left wrist on 5 December 2016 in the course of his employment with Cram Fluid, and
(b) the level of permanent impairment Mr Wiltshire has sustained as a result of the injury he sustained on 5 December 2016 in the course of his employment with Cram Fluid.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

Mr Wiltshire’s claim for compensation came before me for teleconference on 8 February 2022. Mr Pryor and Ms Stranon appeared for Mr Wiltshire and Ms Dooley appeared for Cram Fluid. Mr Wilshire was present.
With Mr Wiltshire’s claim remaining unresolved at teleconference, his claim came before me for conciliation and arbitration hearing on 23 February 2022. Mr McMahon of counsel appeared for Mr Wiltshire, instructed by Ms Stranon. Mr Grimes of counsel appeared for Cram Fluid, instructed by Ms Dooley. Mr Gore-Lenski, a representative of GIO, was present. Mr Wiltshire was present.
Following my discussion with counsel 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

The following documents were in evidence before the Commission and considered in making this determination:
(a) ARD and attached documents, and
(b) Reply and attached documents.

Oral evidence

Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statement of Mr Wiltshire
Mr Wiltshire has provided a statement dated 23 December 2021[3]. Mr Wiltshire commenced employment with Cram Fluid in approximately 2014, working on a full time basis as a hydraulic fitter. Mr Wiltshire is now retired, having resigned from his employment with Cram Fluid during 2018. Mr Wiltshire relevantly said that prior to the incident occurring on 5 December 2016 he had not suffered injury or received treatment for his right wrist, right shoulder, left shoulder or cervical spine.
[3] ARD at p 1.
Mr Wiltshire of the incident:
“On 5 December 2016, I was operating a spiral guard machine that is operated by a foot pedal and had a device that was similar to a lathe head which rotated. This machine applies a metal coil around the outside of a hydraulic hose as a protective measure to strengthen it.
To apply the metal coil around the hose, I was required to place a screwdriver with spiral and move my hand along with the screwdriver to apply the spiral cord. As I applied the spiral cord, it required me to stretch to reach the foot pedal. I had previously made complaints regarding this and had made suggestions that this be fixed with an extension power cord, but nothing was done.
On this occasion, I was applying the spiral cord to a hydraulic hose my left hand became caught and twisted my left wrist. I managed to stop the machine and remove my wrist from the machine.
I reported the incident to my supervisor, Mr Phil Rowe (‘Phil’). I noticed that there was pain and discomfort in both of my wrists but only the left wrist was recorded at the time of the incident”.
Although at the time of the incident Mr Wiltshire’s treating general practitioner practised out of Swansea Medical Centre, Cram Fluid recommended he attend on Dr Lloyd who practised out of Raymond Terrace Family Practice. Mr Wiltshire attended on Dr Lloyd on the day of the incident and was referred for an X-ray of his left wrist. Following orthopaedic review by Dr Meads and further diagnostic investigation, Mr Wiltshire underwent arthroscope, debridement and cortisone injections to his left wrist under the care of Dr Meads on 16 March 2016. Mr Wiltshire received post-surgical physiotherapy treatment.
While Mr Wiltshire was certified fit for his pre-injury duties on 7 June 2017 he continued to experience pain in his left wrist and subsequently attended on Dr Bahtam at Swansea Medical Centre. Dr Bahtam certified Mr Wiltshire totally incapacitated for work between 11 August 2017 and 14 August 2017, and when Mr Wiltshire returned for orthopaedic review with Dr Meads on 30 August 2017 Dr Meads reportedly told him:
“… there was nothing further he could offer me in terms of surgical treatment and subsequently discharged from his care. Dr Meads noted that I would need to avoid vibration activities, heavy gripping and twisting of my left wrist”.
Mr Wiltshire said that although not reported at the time of the incident “I had noticed that I was experiencing pain in my right wrist”. He further explained:
“To avoid pain in my left wrist, I would completely alter my body position to perform my work.
My work as a Hydraulic Fitter was heavy and repetitive and I would often protect my left wrist by relying on my right-hand side, particularly my right wrist, right shoulder and left shoulder for prolonged periods of time.
Any tasks that required pulling, pushing or lifting, I would rely on my right hand-side and both shoulders to perform these tasks. As I was performing these tasks, I noticed a significant increase in pain in my right wrist, right shoulder and left shoulder. Further to this, I noticed that I suffered from a loss of range of motion in my neck and struggled to move my neck without limitation”.
Mr Wiltshire said that on 6 June 2018 he attended on Dr Lack at Swansea Medical Centre with complaint of pain in his left wrist, right wrist, left shoulder, right shoulder and neck, with referral for X-ray of his left wrist, right wrist, left shoulder and right shoulder. An X-ray undertaken on 7 June 2018 reportedly demonstrated degenerative changes in the left wrist, right wrist, left shoulder and right shoulder. Mr Wiltshire subsequently attended on Dr Vallabhaneni at Swansea Medical Centre with complaint of restricted movement of his neck and a scan of his cervical spine demonstrated a loss of disc height at C5/C6. Mr Wiltshire said he returned to Dr Lack on 18 July 2018 “and it was agreed that I could no longer work as a Hydraulic Fitter”.

Claim notification

The claim notification form dated 13 December 2016[4] noted Mr Wiltshire sustained injury to his left wrist on 5 December 2016. The description of injury is noted as “strain to left wrist after operating spiral guard machine” and Mr Wiltshire’s general medical practitioner is noted as Dr Lloyd.
[4] Reply at p 1.

Worker’s injury claim form

The worker’s injury claim form[5] relevant to Mr Wiltshire’s injury is dated 15 December 2016. In his claim form Mr Wiltshire described having suffered pain in his left wrist on 5 December 2016, with the description of injury noted as “strained wrist spiral guarding hydraulic hose”. Mr Wiltshire’s general medical practitioner is noted as Dr Lloyd.
[5] Reply at p 4.

Employer injury claim form

The employer’s injury claim form[6] relevant to Mr Wiltshire’s injury is dated 16 December 2016. In the form Mr Wiltshire is noted as having suffered pain in his left wrist on 5 December 2016, with the description of injury noted as “strained left wrist while putting guarding on hydraulic hose assembly”.

Treating medical evidence
Diagnostic imaging
[6] Reply at p 8.

The X-ray report of both shoulders and both wrists dated 7 June 2018 provided a clinical history of past history of injury to the left wrist and “bilateral wrist and shoulder pain”. The
X-ray of both shoulders reported “minor degenerative change in both AC joints”. The X-ray of both wrists reported:
“There are degenerative changes through the carpus, 1st MCP and IP joints on the left with subchondral cyst the main finding.
On the right, there is moderate to advanced degenerative change in the 1st CMC joint and STT articulation. No significant degenerative change elsewhere in the right wrist”.
The X-ray report of the cervical spine dated 5 July 2018 provided a clinical history of “neck pain with restricted movements”. The X-ray reported:
“There is straightening of the normal cervical lordosis. Mild disc height loss noted at C5/6. Disc heights elsewhere are preserved. No significant facet arthropathy.
There is mild foraminal narrowing in the mid cervical spine laterally. No cervical rib. Prevertebral soft tissues define normally”.

Swansea Medical Centre

Mr Wiltshire’s usual general medical care is with the general practitioners who practise out of Swansea Medical Centre, and the clinical records of the medical centre relevant to Mr Wiltshire as at 25 March 2019 are in evidence before the Commission.[7] It is evident from the clinical records that Mr Wiltshire has been under the care of the medical practice for some years.
[7] ARD commencing at p 117.
Mr Wiltshire initially complained of left wrist pain to Dr Thera on 25 November 2016 with a history of pain in his left wrist for the previous six months, which was “slowly getting worse”. Dr Thera relevantly noted:
“while making hydraulic hoses, he uses the left hand and this particular job is giving him pain.
Pain lasts for a few days before it settles.
Pain mainly in the wrist but goes into the fingers”.
Mr Wiltshire consulted with Dr Bahtam on 14 August 2017 with mental health fragility resulting from workplace issues following the injury he sustained to his left wrist on 5 December 2016, and on 21 August 2017 Mr Wiltshire complained to Dr Lack about intermittent pain in his left wrist since his surgical treatment under the care of Dr Meads. Dr Lack noted at the time:
“on normal duties with wrist, will get final certificate from Dr Meads and GP in Raymond Terrace”.
When Mr Wiltshire returned for review with Dr Lack on 6 June 2018, Dr Lack referred him for X-ray both shoulders and wrists, and noted:
“left wrist injury still giving him grief
now painful right wrist and painful right shoulder
wants to make claim against previous employer
been to solicitor he has advised scans”.
On review on 20 June 2018, Dr Lack noted “no change in condition” and on 4 July 2018 when Mr Wiltshire returned for review with Dr Vallabhaneni, Dr Vallabhaneni referred him for X-ray of his neck, and in part noted:
“Neck pain
Wrist pain – worker’s Comp – solicitor asked for neck Xrays as well
When trying to do things apparently gets the pain in the RT arm – goes across the shoulders and neck to the left hand”.
On review with Dr Lack on 18 July 2018, Dr Lack noted “xray neck show normal age related changes”.
There are no complaints of left wrist, right wrist, right shoulder or neck complaint during Mr Wiltshire’s further consultations with the medical practice, and while Mr Wiltshire was referred for X-ray both shoulders on 6 June 2018 at the behest of his solicitors, Dr Lack recorded no complaint of left shoulder symptoms at that particular time.

Dr Lloyd

Relevant to his left wrist injury Mr Wiltshire came under the general medical care of Dr Lloyd who practises out of Raymond Terrace Family Practice at the recommendation of Cram Fluid. While there is limited medical information from Dr Lloyd before the Commission, there is a letter dated 25 September 2017[8] from Dr Lloyd to Dr Meads in which Dr Lloyd made enquiry of Dr Meads as whether there is “any possible surgical treatment that may beneficial” for Mr Wiltshire in circumstances where Mr Wiltshire continued to suffer pain in his left wrist “which prevents him from doing many different tasks at work as well as recreation such as playing guitar or riding his motorbike”.
[8] ARD at p 84.
In the Certificate of Capacity issued by Dr Lloyd a short time afterwards on 23 October 2017, Dr Lloyd noted Mr Wiltshire was still having problems with his left wrist at work and noted in part:
“Stacey has been performing pe-injury duties. He has resigned from work due to issues with another co-work, which appears to be separate to/not involve his workcover injury issue”.

Dr Meads

Mr Wiltshire came under the orthopaedic care of Dr Meads relevant to the injury he sustained to his left wrist on 5 December 2016. Dr Meads’ clinical records[9] are in evidence before the Commission.
[9] ARD commencing at p 61.
In his report dated 11 January 2017 following his initial consultation with Mr Wiltshire, Dr Meads provided summary of possible TFCC tear of the left wrist with recommendation of diagnostic MRI scanning. On review on 18 January 2017 Dr Meads reported the triangular fibrocartilage compelx was thin but appeared to be intact. Following further investigation and with Mr Wiltshire’s left wrist pain continuing, on 15 February 2017 Dr Meads recommended arthroscopy, debridement and cortisone injection, being the procedure undertaken by Mr Wiltshire on 16 March 2017.
On review on 29 March 2017, Dr Meads described Mr Wiltshire’s pain as “relatively well settled already” but noted that during the course of the surgical treatment, it was noted Mr Wiltshire had a scapholunate tear, which would be monitored. On review of 26 April 2017, while Dr Meads described Mr Wiltshire as having “done well” post-surgery, he noted “he still has some niggling pain on the ulnar side, which catches him intermittently” and described Mr Wiltshire’s left wrist as still not having “the full strength”. Dr Meads felt Mr Wiltshire should continue with suitable duties. On review on 7 June 2017, while Dr Meads described Mr Wiltshire as “doing very well” post-surgery, he described him as having “occasional discomfort within his wrist” and again noted diagnosis of the scapholunate ligament tear. Although Dr Meads was content for Mr Wiltshire to return to his normal duties, he cautioned “his wrist needs monitoring” and arranged for review in three months’ time. However, Mr Wiltshire returned for review with Mr Meads earlier than anticipated and in his report dated 30 August 2017 Dr Meads noted Mr Wiltshire’s left wrist remained symptomatic to some degree but said “at this point in time, I think that Stacey’s wrist is as good as can be achieved”. While Dr Meads discharged him from his care at that point of time, on this occasion he cautioned:
“I am happy for him to return to work on suitable duties but he just need to probably avoid vibration activities or heavy gripping and twisting of the left wrist”.
There is no mention in Dr Meads’ reporting of complaint of right wrist, right shoulder, left shoulder of cervical spine symptoms.

Newcastle Private Hospital

As noted Mr Wiltshire came to surgical treatment in the nature of arthroscopy and debridement of his left wrist and cortisone injection on 16 March 2017 under the care of Dr Meads. The surgical procedure was undertaken at Newcastle Private Hospital. The clinical records of Newcastle Private Hospital relevant to Mr Wiltshire’s surgical treatment are in evidence before the Commission.[10]
[10] ARD commencing at p 85.
There is no mention in the hospital records of any difficulties suffered by Mr Wiltshire to his right wrist, right shoulder, left shoulder or cervical spine.

Independent medical evidence
Dr Bodel

Mr Wiltshire was orthopaedically assessed on 19 June 2019 by Dr Bodel in his capacity as independent medical examiner. Dr Bodel provided a report dated the same day[11]. At the time of assessment Dr Bodel had available to him the reporting of Dr Lloyd and Dr Meads.
[11] ARD at p 52.

Dr Bodel noted Mr Wiltshire had no previous history of problems with his cervical spine, shoulders or wrists. He provided a history of injury:
“This gentleman suffered an injury at work on the 05 December 2016.
At the time, he was operating a piece of machinery known as a spiral guard machine. He indicates that this piece of machinery is operated by a ‘foot pedal’. The machine applies a metal coil around the outside of the hydraulic hose as a protective measure to strengthen it.
While undertaking this activity, his left wrist and hand became caught and caused a twisting injury. He managed to stop the machine and extricated himself from the machine. He had difficulty reaching the foot control pedal that day. He was having great difficulty using a screw driver to apply the coil.
He had to stop work. He was seen by a General Practitioner in Swansea, just south of Newcastle. He was subsequently seen by the company doctor in Raymond Terrace. He was then referred to Dr Bryce Meads, an Orthopaedic Upper Limb and Hand Surgeon. He recommended initial conservative care with rest, analgesic medication and physiotherapy and then an arthroscopy. There was evidence clinically that he had probably torn the scapholunate ligament.
The arthroscopy was done in March of 2017. He had a general debridement of the joint at that time but no ligament repair. He then discussed the issue with Mr Wiltshire about the surgical repair of the ligaments, but there was no guarantee that this would improve function. Therefore, it was not done at that time.
He was off work for two weeks at the time of the surgery which did not help. He was then cleared to return to work on lighter duty activities which he did for another one or two weeks before going back onto the workshop floor.
He developed increasing pain and stiffness in the region of the left wrist and hand. He also began to develop pain in the right wrist, hand, neck and both shoulders because he was favouring all those areas to protect the injured left side”.
Following clinical examination, and review of the medical information made available to him, which included an X-ray report of the cervical spine from July 2018, which confirmed mild degenerative disc disease at C5/6, Dr Bodel provided opinion in response to specific questioning about the history he obtained from Mr Wiltshire:
“This gentleman suffered an injury to his left wrist in the incident that occurred at work on the 05 December 2016. He then developed consequential problems with his right wrist, both shoulders and the neck while trying to recover from the left wrist injury when he favoured the other side. He had great difficulty with strenuous or repetitive tasks, particularly overhead activities because of increasing shoulder girdle and neck pain. This continued to worsen up until he ceased work in late 2017”.
Dr Bodel relevantly provided diagnosis of aggravated arthritic change in the right wrist, bilateral rotator cuff pathology and degenerative disc in the cervical spine, which he said had been aggravated by the nature of Mr Wiltshire’s continuing work with Cram Fluid particularly after the injury he sustained to his left wrist on 5 December 2016 and subsequent arthroscopy.

Dr Diebold

Mr Wiltshire was orthopaedically assessed on 10 July 2020 by Dr Diebold in his capacity as independent medical examiner. Dr Diebold provided a report dated 20 July 2020[12]. At the time of assessment Dr Diebold had available to him medical information, which included reporting from Dr Lloyd, Dr Meads and Dr Bodel.
[12] ARD at p 18.
Dr Diebold noted Mr Wiltshire had no previous history or injuries or symptoms in any of the body parts the subject of his claim and relevantly provided a history of injury:
“Mr Wiltshire suffered an injury on 5 December 2016. He was using a ‘spiral guard machine’ which involved applying a metal coil around a hydraulic hose with a screwdriver. The screwdriver in his left hand became jammed and imparted a severe pronating, twisting injury to the left wrist. He felt immediate left wrist pain and had to stop work.
…
On 16 March 2017 he underwent arthroscopic debridement of the left wrist by Dr Meads at which time Dr Meads noted a scapholunate ligament rupture as well as a triangular fibrocartilage complex tear and dorsal synovitis.
Mr Wiltshire was off work for two weeks, followed by two weeks of light duties, and then a return to full duties on the workshop floor after the surgery. He resigned from work in late 2017 due to ongoing pains.
He developed a gradual onset of pain in both shoulders, neck, right wrist and hand while he was still working in 2017.
He has had ongoing pain in the left wrist, right wrist, neck and shoulders”.
Following clinical examination and review of diagnostic imaging relevant to Mr Wiltshire’s left wrist, Dr Diebold provided diagnosis:
“1. Scapholunate ligament rupture of left wrist – work-related from the injury on 5 December 2016.
2. Chronic non-specific pain of cervical spine – not work-related.
3. I can find no evidence of pathology in the right wrist, right elbow or bilateral shoulders”.
Although Dr Diebold accepted Mr Wiltshire sustained injury to his left wrist on 5 December 2016 in the course of his employment with Cram Fluid, he said:
“I do not consider the worker’s employment has contributed at all to symptoms in the right shoulder, left shoulder, right wrist or cervical spine”.
Dr Diebold explained he could not find objective evidence of pathology or condition affecting Mr Wiltshire’s right shoulder, left shoulder or right wrist. He said the symptoms Mr Wiltshire experienced in his right shoulder, left shoulder and right wrist were mild and pointed out that any rationale for symptoms in the right upper limb being secondary to the left wrist injury would depend on the idea of favouring of the opposite limb causing this. Relevant to this concept, Dr Diebold said medical evidence is strongly against the favouring of the opposite limb causing significant stress symptoms or pathology in the opposite limb.
Dr Diebold also explained the chronic non-specific pain Mr Wiltshire suffered in his cervical spine “is a common condition and would be constitutional”. He said too:
“there is no rationale or evidence for favouring of the upper limb causing an increase in stress or symptoms in the cervical spine. I can see no other rationale for his work causing his cervical spine pain”.
In his supplementary report dated 31 August 2020[13] in response to specific questioning as the cause of Mr Wiltshire’s alleged consequential injury to his right shoulder, left shoulder, right wrist and cervical spine, Dr Diebold attempted to clarify his previously expressed opinion. He said he was unable to make a diagnosis of injury to the right shoulder, left shoulder and right wrist and was unable to identify a cause for the symptoms in these body parts. He said relevant to the cervical spine, diagnosis was chronic nonspecific pain, which is a common condition. Dr Diebold explained:
“In all of these areas, there is no credible rationale by which the injury on the 5^th December 2016 has caused symptoms”.

Submissions
[13] ARD at p 50.

Mr McMahon and Mr Grimes made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.

Determination
Consequential injury to the left shoulder, right shoulder, right wrist and cervical spine

Liability is not disputed for the injury Mr Wiltshire sustained to left wrist on 5 December 2016 in the course of his employment with Cram Fluid. However, liability is disputed for the consequential injury Mr Wiltshire alleges he has sustained to his left shoulder, right shoulder, right wrist and cervical spine.
Mr Wiltshire has the onus of proving he sustained consequential injury to his left shoulder, right shoulder, right wrist and cervical spine as result of the injury he sustained to his left wrist on 5 December 2016 in the course of her employment with Cram Fluid. This is a question of fact in this matter and consideration of Mr Wiltshire’s evidence and all of the medical evidence is required. In Nguyen v Cosmopolitan Homes (NSW) Pty Limited[14] McDougall J stated:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA; (1938) 60 CLR 336. His honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712”.
[14] [2008] NSWCA 246.
With allegation by Mr Wilshire that the injury he has sustained to his right wrist, right shoulder, left shoulder and cervical spine are in the nature of consequential injuries, in Trustees of the Roman Catholic Church for the Dioceses of Parramatta v Brennan[15] Deputy President Snell relevantly discussed consequential injury, and said at [100]:
“There have been a number of Presidential decisions dealing with the nature of claims in respect of consequential conditions. The principles are described in a number of decisions, for example Moon v Conmah Pty Limited [2009] NSWWCCPD 134 and Kumar v Royal Comfort Bedding [2012]. It is unnecessary for a worker alleging such a condition to establish that it is an ‘injury’ (including ‘injury’ based on the ‘disease’ provisions) within section 4 of the 1987 Act”.
[15] [2016] NSWWCCPD23.
In the circumstances of this matter it is important to recognise the injury Mr Wiltshire sustained to his left wrist in the course of his employment with Cram Fluid may have set in train a series of events that, if unbroken, provides the relevant causative explanation of consequential injury to the right wrist, right shoulder, left shoulder and cervical spine. In Kooragang Cement Pty Ltd v Bates[16], Kirby J said:
“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 case 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 commonsense 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.”
[16] (1994) 35 NSWLR 452; 10 NSWCCR 796 at [463] (Kooragang).
It is evident Mr Wiltshire remained troubled by his left wrist injury despite coming to surgical treatment under the care of Dr Meads on 16 March 2017. On 14 August 2017 and 21 August 2017 Mr Wiltshire presented at Swansea Medical Centre with complaint of intermittent left wrist pain since his surgical treatment. On 30 August 2017 Dr Meads noted Mr Wiltshire’s left wrist remained symptomatic. He provided opinion “at this point in time, I think Stacey’s wrist is as good as can be achieved” and cautioned “I am happy for him to return to work on suitable duties but he just need to probably avoid vibration activities or heavy gripping and twisting of the left wrist”. On 25 September 2017 Dr Lloyd appeared sufficiently concerned about the difficulties Mr Wiltshire continued to experience with his left wrist that he wrote to Dr Meads enquiring as to whether there was “any possible surgical treatment that may be beneficial” as the pain Mr Wiltshire suffered in his left wrist prevented him from doing many tasks, including those required of him during the course of his employment with Cram Fluid. On 23 October 2017 Dr Lloyd described Mr Wiltshire as continuing to have problems with his left wrist at work but having resigned from his employment with Cram Fluid for reasons which he understood to be unrelated to his left wrist injury.
When Mr Wiltshire presented at Swansea Medical Centre some eight months’ later on 6 June 2018 with ongoing complaint about his left wrist, he also complained of pain in his right wrist and right shoulder. He was referred for diagnostic imaging, which relevantly demonstrated degenerative in the right wrist, right shoulder and left shoulder. There was no change in Mr Wiltshire’s condition when he presented on 20 June 2018, and when he presented again on 4 July 2018 he complained of neck pain. He was referred for diagnostic imaging, which demonstrated mild disc height loss at C5/6 and mild foraminal narrowing in the mid cervical spine laterally, which Dr Lack described as “normal age related changes”.
At assessment on 19 June 2019, Dr Bodel took a history of Mr Wiltshire sustaining injury to his left wrist on 5 December 2016 and subsequently coming under the care of Dr Lloyd and the doctors at Swansea Medical Centre, with referral to Dr Meads and arthroscopy in March 2017. Dr Bodel noted of Mr Witlshire:
“He developed increasing pain and stiffness in the region of the left wrist and hand. He also began to develop pain in the right wrist, hand, neck and both shoulders because he was favouring all those areas to protect the injured left side”.
Dr Bodel expressed opinion Mr Wiltshire developed consequential injury to his right wrist, both shoulders and his neck “while trying to recover from the left wrist injury when he favoured the other side”. He provided diagnosis of aggravated arthritic change in the right wrist, right shoulder and cervical spine, which he considered had been aggravated by Mr Wiltshire’s continuing work with Cram Fluid particularly after the injury to his left wrist and consequent arthroscopy.
At assessment on 10 July 2020, Dr Diebold also took a history of Mr Wiltshire sustaining injury to his left wrist on 5 December 2016 and subsequently coming to arthroscopy under the care of Dr Meads in March 2017. He noted (perhaps erroneously) Mr Wiltshire had resigned from his employment with Cram Fluid in late 2017 “due to ongoing pains” and recorded:
“He developed a gradual onset of pain in both shoulders, neck, right wrist and hand while he was still working in 2017.
He has had ongoing pain in the left wrist, right wrist, neck and shoulders”.
Dr Diebold said he was not of the opinion that Mr Wiltshire’s employment with Cram Fluid had contributed at all to the symptoms in he suffered in his right wrist, right shoulder, left shoulder or cervical spine. He explained that any rationale for Mr Wiltshire’s right upper extremity symptoms being consequential to his left wrist injury would be dependent on the concept of “favouring” and pointed out medical evidence is strongly against the concept of favouring. I am reluctant to accept Dr Diebold’s expressed opinion against the concept of favouring as I am of the view this remains a concept accepted by many members of the medical profession, including Dr Bodel on whose opinion Mr Wiltshire relies. Dr Diebold also said the symptoms Mr Wiltshire suffered in his cervical spine were constitutionally based.
It is apparent Mr Wiltshire’s right wrist, right shoulder, left shoulder and cervical spine were asymptomatic prior to his sustaining injury to his left wrist on 5 December 2016 in the course of his employment with Cram Fluid. Mr Wiltshire said in his statement that following his medical certification to return to his pre-injury duties on 7 June 2017 he continued to experience pain in his left wrist and his certification was downgraded to a short period of totally incapacity between 11 August 2017 and 14 August 2017. When discharged from Dr Meads’ care on 30 August 2017, while Mr Wiltshire had again been certified as fit for his pre-injury duties by Dr Lack on 21 August 2017, it is noteworthy Dr Meads had recommended Mr Wiltshire avoid vibration activities or heavy gripping and twisting of his left wrist. Mr Wiltshire described his work duties with Cram Fluid as heavy and repetitive and said he would often favour his left side by relying on his right side for prolonged periods of time. He said that while undertaking tasks that required pulling, pushing or lifting he noticed “a significant increase in pain in his right wrist, right shoulder and left shoulder”. He said too that he noticed loss of movement of his neck. While Mr Grimes cautioned against the Commission accepting a history of injury provided by Mr Wiltshire in his statement given some years after the reported onset of his symptoms in 2017[17] it is not apparent Mr Wiltshire’s recollection is inconsistent with the medical information provided by Mr Wiltshire’s treating doctors or the histories provided to the independent medical examiners.
[17] Watson v Foxman & Ors (1995) 45 NSWLR 315.
Relevant to the allegation of consequential right wrist injury and right shoulder injury, having regard to the evidence as a whole and counsels’ submissions, and noting in particular
(a) Mr Wiltshire remained significantly troubled by his left wrist injury after arthroscopy and after his return to work, (b) Dr Meads recommended a return to work on suitable duties and cautioned against Mr Wiltshire undertaking particular activities involving his left wrist,
(c) Mr Wiltshire returned to his pre-injury duties and tended to favour his right side when undertaking his work duties, which he described as heavy and repetitive, (d) Mr Wiltshire noted an increase in pain in his right wrist and right shoulder when undertaking work duties that required pulling, pushing and lifting (e) Mr Wiltshire presented at Swansea Medical Centre on 6 June 2018 with complaint that included pain in his right wrist and right shoulder, and (f) Dr Bodel has provided opinion Mr Wiltshire developed consequential injury to his right wrist and right shoulder as a result of favouring, being a concept with which I am comfortable, I am satisfied Mr Wiltshire has discharged the onus of proof required of him and I am satisfied on the balance of probabilities that Mr Wiltshire has sustained consequential injury to his right wrist and right shoulder. I prefer the opinion offered by Dr Bodel to that of Dr Diebold as Dr Diebold’s opinion is essentially grounded in a lack of pathology, when pathology is evident on the diagnostic imaging, and a rejection of the concept of favouring, being a concept with which I am comfortable.
Relevant to the allegation of consequential left shoulder injury, having regard to the evidence as a whole and counsels’ submissions, and noting in particular Mr Wiltshire made no complaint of left shoulder pain when he presented at Swansea Medical Centre on 6 June 2018 with complaint of left wrist, right wrist and right shoulder pain or at any other time to a treating doctor, I do not accept Mr Wiltshire has discharged the onus of proof required of him and I am not satisfied Mr Wiltshire has sustained consequential injury to his left shoulder. I do not accept the opinion offered by Dr Bodel as in my view Dr Bodel failed to adequately explain how Mr Wiltshire sustained consequential injury to his left shoulder as a result of favouring his left side due to his left wrist injury.
Relevant to the allegation of consequential cervical spine injury, having regard to the evidence as a whole and counsels’ submissions, and noting in particular that when Mr Wiltshire was referred for diagnostic imaging after he presented at Swansea Medical Centre on 20 June 2018 with neck pain, on review of the consequent X-ray Dr Lack explained to him the X-ray demonstrated “normal age related changes”, I do not accept Mr Wiltshire has discharged the onus of proof required of him and I am not satisfied Mr Wiltshire has sustained consequential injury to his cervical spine. I do not accept the opinion offered by Dr Bodel as in my view Dr Bodel failed to adquately explain how Mr Wiltshire sustained consequential injury to his cervical spine as a result of favouring his left side due to his left wrist injury.

Permanent impairment

Liability is not disputed for the injury Mr Wiltshire sustained to his left upper extremity (left wrist) on 5 December 2016 in the course of his employment with Cram Fluid. While I have determined Mr Wiltshire has not sustained consequential injury to his left shoulder and cervical spine as alleged, I have determined he has sustained consequential injury to his right wrist and right shoulder as alleged.
It is appropriate Mr Wiltshire’s claim for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury he sustained to his left upper extremity (left wrist) on 5 December 2016 in the course of his employment with Cram Fluid and consequential injury to right upper extremity (right wrist and right shoulder), as agreed or determined by the Commission, be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
It is appropriate the following documents be forwarded to the Medical Assessor:
(a) ARD and attached documents, and
(b) Reply and attached documents.

SUMMARY

Liability is not disputed for the injury Mr Wiltshire sustained to his left upper extremity (left wrist) on 5 December 2016 in the course of his employment with Cram Fluid. While I have determined Mr Wiltshire has not sustained consequential injury to his left shoulder and cervical spine as alleged, I have determined he has sustained consequential injury to his right wrist and right shoulder.
Mr Wiltshire’s claim for permanent impairment compensation payable under s 66 of the 1987 Act resulting from injury he sustained to his left upper extremity (left wrist) on 5 December 2016 in the course of his employment with Cram Fluid and consequential injury to right upper extremity (right wrist and right shoulder), as agreed or determined by the Commission, is to be remitted to the President for referral to a Medical Assessor for the purpose of assessment of whole person impairment.
The following documents are to be forwarded to the Medical Assessor together with this Certificate of Determination and Statement of Reasons:

(a) ARD and attached documents, and
(b) Reply and attached documents.

[2022] NSWPIC 169

20 April 2022