Winiarski v Bankstown City Aged Care Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Winiarski v Bankstown City Aged Care Pty Ltd [2022] NSWPIC 72
APPLICANT:	Miroslawa Winiarski
RESPONDENT:	Bankstown City Aged Care Pty Ltd
MEMBER:	Carolyn Rimmer
DATE OF DECISION:	18 February 2022
CATCHWORDS:	WORKERS COMPENSATION – Claim for costs of proposed shoulder replacement surgery; accepted injury to lumbar spine respondent dispute alleged consequential condition to right shoulder; Held- applicant failed to establish that the injury to the lumbar spine on 18 November 2016 made a contribution to the fall on 9 November 2019 and the applicant failed to discharge the onus upon her to establish that she sustained a consequential injury to her right shoulder as a result of the injury to her lumbar spine; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent for the claim for medical expenses in relation to the right shoulder injury.

STATEMENT OF REASONS

BACKGROUND

The applicant, Miroslawa Winiarski, (Mrs Winiarski) was employed by Bankstown City Aged Care Pty Ltd (the respondent) as a kitchen hand. The respondent’s workers compensation insurer at the relevant time was AAI Limited trading as GIO (the insurer).
In the course of her employment on 8 November 2016, Mrs Winiarski, was unloading milk containers from a kitchen trolley when she sustained an injury to her lumbar spine. Mrs Winiarski alleged that on 9 November 2019 she sustained an injury to her right shoulder because she fell as a result of weakness and numbness in the right leg due to the injury to her lumbar spine on 8 November 2016.
Mrs Winiarski made a claim for medical treatment in relation to a right shoulder replacement proposed by Associate Professor Ireland.
The respondent disputed liability for the alleged consequential condition in the right shoulder in a s 78 notice dated 26 October 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) Whether Mrs Winiarski suffered a consequential condition in her right shoulder as a result of the injury to her lumbar spine on 8 November 2016.
(b) Whether the treatment proposed by Professor Ireland was reasonably necessary.

PROCEDURE BEFORE THE PERSONAL INJURY COMISSION (Commission)

The parties attended a conciliation conference and arbitration on 1 November 2021. Mrs Winiarski was represented by Ms Eraine Grotte who was instructed by Mr Anthony Friscina of Friscina Lawyers. The respondent was represented by Mr Phillip Perry who was instructed by Ms Olivia Leonard of Gair Legal. Ms Nicole Leneve from the insurer attended the hearing. The matter was part heard on 1 November 2021 and leave was given to Mr Perry to cross-examine the applicant. The hearing was adjourned for further hearing via Microsoft Teams on 26 November 2021. The Commission directed that an interpreter in the Polish language be arranged to attend the further hearing on 26 November 2021.
On 26 November 2021 the proceedings were conducted via Microsoft Teams. Ms Winiarski was again represented by Ms Eraine Grotte who was instructed by Mr Anthony Friscina of Friscina Lawyers. The respondent was represented by Mr Phillip Perry who was instructed by Ms Leonard of Gair Legal. Ms Nicole Leneve from the insurer attended the hearing. An interpreter in the Polish language attended.
At the conclusion of the hearing on 21 November 2021 the following directions were issued:
“1.     A transcript of the proceedings on 25 November 2021 is to be provided to the parties.
2.     The respondent is to lodge and serve by 14 January 2022 written submissions following the arbitration on 26 November 2021.
3.     The applicant is to lodge and serve by 28 January 2022 written submissions.
4.     The respondent is to lodge and serve by 4 February 2022 written submissions in reply
5.     At the conclusion of the time allowed for submissions the dispute will be determined.”
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) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents.

Oral evidence

Mrs Winiarski gave evidence on 26 November 2021. Relevant parts of the oral evidence are referred to in my findings and reasons.

Submissions

The parties made written submissions in this matter. The respondent filed submissions dated 14 January 2022 and submissions in reply dated 8 February 2022. The applicant filed submissions dated 31 January 2022.
I do not propose to repeat those submissions in full but I note that the respondent submitted that the applicant must establish that the injury to her lumbar spine at work on 18 November 2016 made a material contribution to the need for the proposed surgery to the right shoulder. In particular the respondent argued Mrs Winiarski must establish that (a) her fall was caused by the failure of her right leg to support her as a legacy of her lumbar spine injury, rather than as a result of the fact that she tripped on a junction between uneven pavers and (b) her right shoulder prior to the fall was not already the site of such advanced pathology and symptoms that the surgery proposed was at that time already reasonably necessary. Further, the respondent submitted that Mrs Winiarski was not a reliable witness.
Mrs Winiarski submitted that she fell over on 9 November 2019 and injured her right shoulder when her right leg gave way while she was walking, because of the continuing symptoms resulting from the work injury to her back. Mrs Winiarski submitted that in order to succeed she only had to establish that the fall onto the right shoulder for which surgery was recommended was causally connected to the injury to the low back. Further, Mrs Winiarski submitted that the work injury did not have to be a substantial cause of the necessity for the recommended treatment and even if there was a pre-existing condition in the right shoulder prior to the fall on 9 November 2019 and this pre-existing condition had contributed to the need for surgery, this would not necessarily defeat Mrs Winiarski’s claim. Mrs Winiarski referred to the decision in Mason v Demasi [2009] NSWCA 22 and submitted that care must be taken when assessing the meaning to be drawn from the clinical notes of Dr Ortiz and whether it can be presumed that they demonstrate inconsistencies sufficient to undermine Mrs Winiarski’s case. Mrs Winiarski submitted that I should accept that she was a truthful witness albeit a poor historian.

FINDINGS AND REASONS

The injury to the lumbar spine on 8 November was accepted as a work-related injury. There is no dispute that following that injury, Mrs Winiarski underwent surgery to the lumbar spine on 22 August 2017 and 15 July 2019.

Evidence of Ms Winiarski

In a statement dated 17 May 2019, Mrs Winiarski said that she commenced work for the respondent at Gillawarna Village Nursing Home in January 2009 as a kitchen hand. She stated that her job involved serving food to residents, collecting plates and dishes, loading the dishwasher and taking in deliveries of milk, bread and butter.
Mrs Winiarski stated that on 8 November 2016 she was unloading a trolley containing deliveries and had to pull out the bottom shelf which contained three two litre bottles of milk. She said that the shelf was stuck and as she was pulling it, she felt a click in her low back. She stated that as a result of this action, she suffered an injury to her low back and was taken to Bankstown Hospital by ambulance.
Mrs Winiarski said that her general practitioner, Dr Ortiz, referred her to Dr Bazina, neurosurgeon, who recommended surgery on the low back. This surgery was performed on 22 August 2017.
Mrs Winiarski said she returned to work in about January 2018 on suitable duties for a period of four months but struggled with this and was not able to continue. She said that during that period her low back pain was aggravated.
Mrs Winiarski stated that Dr Ortiz then referred her to Dr Sergides, neurosurgeon.
In a supplementary statement dated 20 November 2020, Ms Winiarski said that she saw Dr Sergides in May 2019 and he recommended she undergo further surgery to decompress the disc at L4/5. She stated that she underwent this surgery on 15 July 2019 and stayed in hospital for about two weeks. She said that her doctor recommended she undergo rehabilitation at Braeside Hospital following the surgery, but that was never approved by the insurer and she went home. Mrs Winiarski said that she did get back to walking very slowly, but it took her a long time. She said that at the time she had a lot of dizziness and weakness in the right knee when walking.
Mrs Winiarski wrote:
“12.   My pain in my low back and right leg had improved for a short period, but returned over the coming months. I still had numbness in my right leg.
13.    For months after my walking was very slow and measured.
14.    I had weakness in my right leg, my right upper thigh, my knee and my right calf. I felt a lot of numbness and weakness.
15.    I would always tell Dr Ortiz that it just does not feel like my legs. My legs felt very funny and like they were not mine.
16.    My left leg was always stronger but my right leg felt different, and there were pins and needles in my right leg.
17.    The pain in my right leg was travelling from the top of my right buttock down to my ankle.
…
30.    When I consulted with Dr Ortiz on 31 October 2019 I told her that I was having pain in my right shoulder. Up to that stage I had three cortisone injections in my shoulder.
31.    I did have some pain in my shoulder at the time.
32.    Shortly after that, on 9 November 2019 I fell over and injured my right shoulder. As a result the pain in my right shoulder was a lot worse. It was terrible pain, much worse than I had ever experienced.
33.    Whenever I walked my right leg would feel funny. What I mean by this is that I experienced weakness and numbness in my right leg.
34.    As part of my exercise routine I walk every day for one or two kilometres in my local area.
35.    On Saturday, 9 November 2019, I had gone for my usual walk.
36.    On this day I was walking along Green Valley Road near the intersection with Wilson Road at Green Valley.
37.    At the time I was walking along the footpath. As I was walking I felt a weakness and numbness in my right leg.
38.    I lost feeling in my right leg and I fell over onto my right shoulder.
39.    My right leg just went out from under me and I fell over.
40.    After the fall I could not get up for a while and I just stayed in the position on the ground. I was bleeding from my hands and my right shoulder was extremely sore.”
Mrs Winiarski stated that she saw a general practitioner at Cecil Hills Medical Centre on Monday, 11 November 2019. She stated that she was referred for an X‑ray and they put her arm in a sling. She said that following this she reported her injury to Dr Ortiz, who referred her for an ultrasound. Dr Ortiz then referred Mrs Winiarski to Associate Professor John Ireland, who she initially saw on 28 February 2020. Mrs Winiarski stated that in May 2020 Associate Professor Ireland recommended that she undergo a right shoulder replacement, but the insurer had not approved this request.
Mrs Winiarski stated that she saw Dr Panjaratan on 15 September 2020 at the request of the insurer. She stated that before her fall she “had not had any shoulder pain for quite some time”. She said that her “right shoulder was fine”.
Mrs Winiarski stated that in his report Dr Panjaratan said that she had told him that she fell into the parking centre at Stockland Mall. She stated that this fall at the parking centre was not the injury in question, and “not how I fell on 9 November 2019”. She stated that this was a separate incident which occurred on 9 March 2020 and at that time she had parked her car and was walking towards the entry when her right leg felt as if it was “gone”, and she fell over and hit her head and right shoulder against a wall. She wrote:
“I have characterised this as slipping, but in fact I did not slip, it is the fact that my right leg gave way. I put this down to a cultural language difference and I did not really understand the difference between slipping and just falling.”
Mrs Winiarski stated that the reason why she fell was because of the problem she was experiencing in her low back and right leg. She said she had weakness and numbness in her right leg and when she did fall it felt as though there was nothing there to support her, and that was the reason why she fell.

Medical Reports

Reports following the fall on 9 November 2019

In an ultrasound report of the right shoulder dated 2 December 2019, Dr Jan Masesa noted:
“Tendinopathic change affects the supraspinatus with no tears visible. All other cuff tendons as well as long head of the biceps appear within normal limits. Thickening of the subacromial bursal is complex is seen indicative of bursitis.”
In a report to the insurer dated 24 February 2020, Dr Helena Ortiz, general practitioner, made a provisional diagnosis of non‑resolving supraspinatus tendinosis and subacromial bursitis, degenerative changes of the right shoulder joint. She described the onset of symptoms as: “Slipped and fell landing on her right arm mid‑November 2019, Miroslava has no symptoms pertaining to her shoulder prior to this.” Dr Ortiz expressed the view that the injury to the right shoulder related to the original work injury to the lower back on 8 November 2016 and wrote: “Miroslava has a persistent numbness and weakness on her right leg as a result of the original back injury, this would have contributed to her fall which resulted in right shoulder injury.” Dr Ortiz was of the view that there were no other symptoms pertaining to the shoulder prior to the fall.
In a report dated 28 February 2020, Associate Professor John Ireland, orthopaedic surgeon, noted that Mrs Winiarski had “sustained an injury at work when she fell as a result of a Worker’s Compensation based back injury”. He wrote:
“She had some persistent weakness in the right leg and fell landing on her right shoulder in November of last year.”
Associate Professor Ireland also noted that Ms Winiarski had had no prior problems of the shoulder. He noted that the plain X‑ray showed some age‑related degenerative changes.
In a report dated 13 March 2020, Associate Professor Ireland noted that the MRI revealed some features of subacromial bursitis but also underlying arthritic changes in the glenohumeral joint.
In a report dated 8 May 2020, Associate Professor Ireland noted that Mrs Winiarski continued to complain of severe pain in the shoulder joint and had no relief from the intraarticular steroid injection. He expressed the view that as there had been no real improvement since the fall in November 2019, she would require a total shoulder replacement. He wrote:
“In consideration of causation, this lady reports no symptoms prior to the fall that occurred as a direct result of her work‑related back injury. Despite the fact that she had underlying arthritic change, it is more likely than not that she would not have developed symptoms to this extent in her shoulder at this stage.”
In a medico-legal report dated 30 July 2021, Associate Professor Ireland noted that he had been provided with additional information, including the progress notes of Dr Ortiz. He noted that Mrs Winiarski continued to complain of pain.
Associate Professor Ireland noted from the information available that in August 2009 Ms Winiarski saw her general practitioner regarding a sore right shoulder and required a steroid injection under ultrasound. He noted that in September 2009 the shoulder had improved but she still had a second steroid injection under ultrasound. Associate Professor Ireland noted that in 2016 the right shoulder had been painful for several months and she was diagnosed with impingement. He noted that in August 2018 she presented with bilateral shoulder pain, the right worse than the left, which lasted for greater than a month and was associated with decreased range of motion. She was diagnosed by ultrasound as having adhesive capsulitis and treated with Celebrex. Associate Professor Ireland then noted that Mrs Winiarski fell and injured her right shoulder on 9 November 2019 and this fall was the basis of the current claim. He reported that in August 2019 she underwent a hydrodilation procedure and steroid injection, which he assumed was for adhesive capsulitis.
Associate Professor Ireland wrote:
“As you are aware from my report, the details of the injury did not include any of her pre‑existing history, with the shoulder.
… On the basis of further information you have provided, this lady has had significant pathology with the shoulder and a long history of ongoing symptoms. It would appear from the history and information available that she sustained a substantial aggravation of the shoulder following the fall she experienced in November 2019.
Based on the information I have, I would be of the opinion that, there is a causal relationship between the fall and the injury to the right shoulder and the weakness in leg due to her lower back injury.”
In a report dated 10 August 2020, Dr Jeffrey Petchell, treating orthopaedic surgeon, noted Mrs Winiarski had presented with a painful right shoulder. He reported that she had injured her back at work four years ago and had undergone two procedures which failed to address her right leg weakness. He wrote:
“As a result of her right leg weakness Miroslawa had a fall while walking outside onto an adducted shoulder. … She had no previous history of shoulder pain, injury or dislocation.”
Dr Petchell noted that the MRI demonstrated glenohumeral osteoarthritis with chondral loss on both the humeral head and glenoid with moderate inferior humeral head osteophyte. He noted that there was mild posterior subluxation and a partial tear of the supraspinatus, a loose body in the subscapularis recess and a tear of the superior labrum.
Dr Petchell reported that he discussed surgical and non‑surgical measures and that he agreed with Associate Professor Ireland that a shoulder replacement rather than arthroscopic procedure was appropriate. However, he suggested a three month trial of physiotherapy.
In a report dated 15 September 2020, Dr Vijay Panjratan, consultant orthopaedic surgeon, noted that Mrs Winiarski had injured her back in November 2016 at work and then underwent surgery on 22 August 2017. He noted that post‑surgery she had back pain which radiated to the right thigh with persistent sensory changes suggestive of continued radiculopathy. He noted that she then underwent another operation in mid‑2019.
Dr Panjratan noted that Associate Professor Ireland had stated that Mrs Winiarski had fallen in November 2019 due to persistent weakness in her right leg. Dr Panjratan noted that there was an entry in the general practitioner’s clinical notes dated 31 October 2019, that was, prior to her fall, which stated: “Main problem now is right shoulder – the frozen shoulder, has had three shoulder injections, still has restricted movement …” Dr Panjratan noted that the clinical notes on 12 November 2019 stated: “Recent injury, fell on the right shoulder.” Dr Panjratan also noted that on 28 November 2019 Dr Ortiz stated that Ms Winiarski had fallen while walking which according to the certificate of capacity was due to the right leg being weaker than the left.
Dr Panjaratan noted Mrs Winiarski said that she felt a “sensation of numbness going down the right leg and slipped on concrete and when she fell, she fell midway between the concrete and the grass”. She said she was helped up by another person who was walking on the other side of the same footpath. She told Dr Panjaratan that she was walking as part of the exercise advised by her doctor and she was not far from home. He noted that this happened at midday on Sunday, and she saw a doctor the next day.

Dr Panjaratan made a diagnosis of aggravation of pre‑existing osteoarthritis of the right shoulder. He noted that Mrs Winiarski claimed that the injury was because she had sudden numbness of the leg and slipped on concrete and fell over. He expressed the view that the only causal relationship would be that she was walking as part of the exercise advised by her doctor, and he did not consider that there was a causal relationship between the right shoulder presentation and her back injury or its treatment.
Dr Panjaratan wrote:
“Regarding the injury concerned she told me that she had gone to Stocklands Mall and fell in the parking centre. She states that the right leg feels funny. She complains of an odd feeling going down the right leg from time to time but it is not there all the time.
She parked her car and was walking to the door and slipped and hit her shoulder against a brick wall. Three ladies took her to the local doctor, but the doctor was full and she saw her own GP. She did not claim for that and says that she was embarrassed and this is the fall dated 31 October 2019 which is a different fall.”
Dr Panjaratan noted that Ms Winiarski could not provide any more details of the date and timing other than the history which she gave to him. He noted that the history was in close proximity and indicated that on 31 October 2019 the main problem was the “right shoulder, frozen shoulder”. Mrs Winiarski had said that “going back” she had four cortisone injections.
Dr Panjaratan concluded that the proposed surgery on the right shoulder was not reasonably necessary in relation to the stated injury. He stated that the proposed surgery was reasonable but it was not work‑related. He considered that the current injury’s circumstances were vague and did not appear to have any “reaction” [sic] to work.
In a report dated 18 February 2021 Dr Sheikh Habib, orthopaedic consultant, noted that after the second operation on 15 July 2019, Mrs Winiarski had partial relief of right leg pain, but continued to experience paraesthesia and right leg weakness. He wrote:
“Mrs Winiarski stated that she felt the right leg giving way at times. On 09/11/19, her right leg gave way while coming home from the chemist. She fell on her right, hitting her right shoulder area. She had fairly extensive bruising around the right shoulder.”
Dr Habib noted that Mrs Winiarski also fell on a second occasion in March or April 2020 while in Stockland Shopping Centre when her right leg gave way making her lose balance. He reported that she had hit her right shoulder against the wall before falling to the floor.
Dr Habib expressed the view that following the surgery Ms Winiarski had residual right lower limb symptoms of pain, sensory alteration, and those of some right leg/ankle weakness, accompanied with the right leg giving way. He noted that according to the history given, this resulted in her falling first in March/April 2019 [sic] and then on 9 November 2019. He noted that she injured the right shoulder when she fell on these occasions. Dr Habib made a diagnosis of a consequential injury, due to falls as a result of the right lower limb giving way, resulting in severe aggravation of pre‑existing asymptomatic glenohumeral joint arthropathy and rotator cuff tendinopathy and subacromial impingement. He considered that if it had not been for the said falls, in which she severely injured the shoulder, it was more than likely that she would not have developed the right shoulder symptoms and signs to the extent seen at this stage. He agreed with Associate Professor Ireland’s opinion regarding recommended treatment, namely, total right shoulder replacement. Dr Habib concluded that the degenerative change deterioration had been accelerated by the trauma to the affected joint.
In a report dated 23 July 2021, Dr Habib noted that he had been provided with the progress notes of Dr Ortiz, the medical report of Dr Panjaratan, various imaging reports and the supplementary statement of Mrs Winiarski. He noted that according to the supplementary statement and the clinical notes, she had suffered from longstanding with periodic exacerbations of right shoulder condition which required treatment with pills, physiotherapy and local corticosteroid injections. He noted that she saw Dr Ortiz complaining of right shoulder pain on 24 August 2009 and it appeared that the right shoulder pain settled down with treatment until the next complaint in June 2013. He noted that she was also seen in relation to the right shoulder on 16 July 2016 and referred for physiotherapy on 9 August 2016. Dr Habib stated that he did not find any entries in the treating doctor’s notes between these dates and the fall on 9 November 2019.
Dr Habib concluded that Mrs Winiarski had a past history of right shoulder symptoms requiring non‑surgical treatment on a few occasions prior to the work injury on 8 November 2016. He noted that the consequential right shoulder injury occurred from the fall to her right side when the right lower limb gave way on 9 November 2019. He noted that the right lower limb symptoms of pain and giving way were the direct result of the lumbar discopathies with radiculopathies following the two surgical low back procedures. He noted that the surgery proposed by Associate Professor Ireland was necessary and reasonable.

Reports prior to the fall on 9 November 2019

In an ultrasound of the right shoulder dated 26 August 2009, Dr Willem van der Merwe, radiologist, noted that there was a history of right shoulder pain but no recent trauma. Under “findings” he wrote:
“There appears to be a partial tear of the mid subscapularis tendon present and this is most probably long-standing in nature. It measured approximately 9mm.
A small amount of fluid is noted in the subacromial subdeltoid bursa and is associated with impingement on abduction and forward flexion.”
In a right shoulder ultrasound report dated 1 July 2013, Dr Dominic Collis, radiologist, concluded that Mrs Winiarski had a partial thickness tear of the subscapularis tendon and minimal subacromial bursal impingement.
In a report dated 3 September 2013, Mr Patrick Cormack, physiotherapist, stated that he reviewed Mrs Winiarski on 2 September 2013, about two weeks since her right shoulder corticosteroid injection. He noted she reported almost complete relief of her night pain, but the shoulder remained stiff and weak.
In an ultrasound report of the right shoulder dated 19 July 2016, Dr Elizabeth Lazarus, radiologist, noted that the supraspinatus tendon had a normal appearance with no sign of a tear or tendinosis, but there was slight heterogeneity of the subscapularis tendon and an intrasubstance tear of the tendon measuring 9mm. She was noted there was pain on abduction of the arm but no impingement.
In a report dated 20 August 2016, Mr Cormack noted Mrs Winiarski presented on 9 August 2016 with a long history of right shoulder pain. He noted that their records indicated she had a similar problem in 2013. He stated that with this episode there was moderate restriction of shoulder movement and a mild impingement sign. He gave her a program of exercise to mobilise and strengthen the arm.
In a report dated 28 March 2018, Dr Seamus Dalton, specialist in rehabilitation medicine, noted that Mrs Winiarski presented with a very antalgic standing and walking posture. He noted she had had no investigations since her surgery but there had been significant deterioration recently. Dr Dalton expressed concern that the pain distribution of the right leg did not conform to an L4 radiculopathy and was more in the L5 distribution. He was of the view that her presentation suggested she had an acute exacerbation of facet joint arthropathy, probably at the L4/5 and/or L5/S1 level, but there could be an additional foraminal disc protrusion. He recommended that she undergo an MRI.
In an ultrasound report of the right shoulder dated 10 September 2018, Dr Collins noted there was a history of a painful range of motion bilaterally and tender posterior joint lines Dr Collis concluded that there were changes consistent with bilateral adhesive capsulitis.
In a report dated 28 September 2018, Dr Andrew Keller, occupational physician, noted he had examined Mrs Winiarski and she reported altered sensation in the right lower limb crossing multiple dermatomes without physical signs of radiculopathy. He expressed the opinion that she should be able to slowly increase her hours at work over the next three to six months.
In a report dated 1 March 2019, Dr Yanni Sergides, treating neurosurgeon, noted that following the injury in November 2016 Mrs Winiarski underwent a right L3/4 microdiscectomy. He noted that since this surgery, Mrs Winiarski said that her leg continued to feel “heavy”, and she had pain radiating from her buttocks to her thigh and to the lateral aspect of her shin on the right. He noted that she walked with a limp and in a kyphotic posture.
In a report dated 27 August 2019, Dr Sergides noted that Mrs Winiarski had undergone a right L4/5 lateral recess decompression and noted improvement in the symptoms in her right leg. He wrote:
“The pain which she had previously has gone and has been replaced with a paraesthesia which is more tolerable to her. This is likely to be secondary to recovery that is ongoing in the nerve and will take time.”
In a report dated 22 July 2019, Dr Lam, consultant in rehabilitation medicine, noted that Ms Winiarski had undergone right L4/5 lateral recess decompression and rhizolysis on 15 July 2019. He recommended that she have 14 days of inpatient rehabilitation to optimise her mobility, function and endurance, and would also benefit from back education and abdominal stabilisation exercises. He referred her to Braeside Hospital for implementation of an inpatient rehabilitation process.

Clinical notes

In the clinical notes of Green Valley Medical Practise, the following entries were included:
(a)    In an entry dated 24 August 2009, Dr B Bartos recorded a history of a sore right shoulder noting Mrs Winiarski was in the cleaning business. On examination he found she had a tender right shoulder with reduced range of movement. He referred Mrs Winiarski for a right shoulder ultrasound.
(b)    In an entry dated 14 June 2013, Dr Bartos noted that there was a history of a sore right shoulder after serving “an ice at work”. Under examination he reported: “Tender right biceps tendon. A:? bicipital tendonitis.” He referred Mrs Winiarski for a right shoulder ultrasound.
(c)    In an entry dated 16 July 2016, Dr John McMahon noted: “…right shoulder pain months.” On examination he noted: “right shoulder tender deltoid with painful restricted range of movement.” He referred Mrs Winiarski for an ultrasound of the right shoulder.
(d)    In an entry dated 20 September 2017, Dr Ortiz noted that Mrs Winiarski had complained of a stiff and painful neck for the last three days and was also sore along the trapezius muscles/shoulder blade. On examination she noted: “pain over the traps with movement of the right shoulder”.
(e)    In an entry dated 6 December 2017, Dr Ortiz noted that Mrs Winiarski’s right leg was not improving. She wrote: “Feels weak, shooting pain but only at night – much the same as prior to surgery also feels very tired, fatigue.”
(f)    In an entry dated 29 August 2018, Dr Ortiz noted “pain much the same” and that Mrs Winiarski was not fit to go back to work. Dr Ortiz noted that Mrs Winiarski complained of “bilateral shoulder pain, R>L, has been x 1 month - restricted all ROM, tender posterior joint line – no injury”. Dr Ortiz referred Mrs Winiarski for a bilateral shoulder untrasound.
(g)    In an entry dated 10 September 2018, Dr Ortiz discussed the results of the ultrasound and noted there was “adhesive capsulitis, no tear”.
(h)    In an entry dated 19 September 2018, Dr Ortiz noted that Mrs Winiarski was still getting pain in the right lower back radiating down the right buttock and leg. There was a discussion about starting suitable duties three hours a day, three days a week.
(i)    In an entry dated 3 October 2018, Dr Ortiz noted that there had been an exacerbation of low back pain and right leg pain which started last Friday and stated that it was clear that Mrs Winiarski was unable to go back on suitable duties.
(j)    In an entry dated 21 February 2019, Dr Ortiz noted: “Worsening radiculopathy right leg – constantly feels heavy, tight/pulling sensation, pins and needles – feels that her symptoms are getting worse.”
(k)    In an entry dated 24 June 2019, Dr Ortiz noted that Dr Serigides recommended surgery. She noted that Mrs Winiarski still had constant low back pain and the right leg felt heavy and there was intermittent numbness. Dr Ortiz wrote: “…main concern at present is right shoulder – painful with moderately restricted movement – US last year showed adhesive capsulitis. Cortisone injection did not work will try CT guided hydrodilation.”
(l)    In an entry dated 27 July 2019, Dr Ortiz noted that Mrs Winiarski had a right L4L5 lateral recess decompression and rhizolysis 12 days ago.
(m)     In an entry dated 26 August 2019, Dr Ortiz noted that it was six weeks post‑op and Mrs Winiarski was still getting pain from the back and down the right leg and left buttock. The pain was described as throbbing, “grabbing”, and it was not the same pain on the right leg that she was getting before.
(n)    In an entry dated 26 September 2019, Dr Ortiz noted that Mrs Winiarski was improving. Dr Ortiz wrote: “Now mostly has numbness down the right leg, pain is gone, having physio but have not started hydrotherapy as yet because of the cold weather, still off work…”
(o)    In an entry dated 31 October 2019, Dr Ortiz wrote:
“Improving, numbness gone, mild pulling pain lateral thigh
overall much better than before surgery
main problem now is right shoulder – frozen shoulder, has had 3 cortisone injections but still has restricted movement – abduction to 90°, extension to 90°, restricted internal rotation, will try physiotherapy again.”
Under “Reason for Contact” Dr Ortiz wrote: “Capsulitis – shoulder”.
(p)    In an entry dated 12 November 2019, Dr Bartos wrote:
“Recent injury, fell on right shoulder
… gross reduction in right shoulder movement, tender bipetal insertion
A: STI right shoulder with impingement.”
(q)    In an entry dated 28 November 2019, Dr Ortiz noted that Mrs Winiarski had slipped and fallen while walking two weeks ago and landed on the right arm and had a very painful upper arm and elbow and went to another medical practice and had an “x‑ray– no fracture”. Dr Ortiz wrote: “Pain not as bad however shoulder still has very restricted movement. Back – no pain, muscle pain back of right thigh and buttock from fall.”
Dr Ortiz referred the applicant for an ultrasound of the right shoulder.
(r)    In an entry dated 4 December 2019, Dr Ortiz noted that there was a discussion of the ultrasound “bursitis, no tear”. Dr Ortiz noted that the shoulder was a bit better, still painful with movement, abduction restricted to 90 degrees, extension also 90 degrees, marked restriction in internal rotation. Mrs Winiarski was referred for an US guided cortisone injection in the right shoulder.
(s)    In an entry dated 22 January 2020, Dr Ortiz wrote:
“ongoing problem with right shoulder – very painful, cannot sleep at night. very restricted movement – sx of frozen shoulder
no response to cortisone injection
went to see solicitor and was told to get w/c medical certificate for shoulder as related to her back
patient said she fell when she tripped on the junction of an uneven pavement - said she thinks it is because her right leg is weak from the back injury
leg did not give way on her however
not sure that shoulder injury is related to the back problem but will include in the medical certificate
in the meantime level of pain not consistent with US findings from Dec – will do MRI.”
In the clinical notes of Cecil Hills Medical Centre, Dr Soon Leong Jee noted on 11 January 2018 that Mrs Winiarski had come in for review of right shoulder ultrasound. He wrote: “Reported as subacromial bursitis with partial thickness tear of subscapularis tendon”. Dr Jee recommended that she avoid movements of the shoulder that brought on pain, and prescribed Mobic and a cortisone injection into the bursa.
In an entry in the clinical notes of Cecil Hills Medical Centre dated 11 November 2019 Dr Sunil Vyas wrote: “Come with husband. On Sat was walking and tripped and fell forward. Has been sore in R upper limb since. Does not think any fractures.” On examination he noted she was tender on the right shoulder, arm, elbow but seemed to have full movement at the elbow. He referred her for a right shoulder X‑ray.

DISCUSSION

At the commencement of the arbitration, Mr Perry stated that the respondent accepted that Mrs Winiarski had injured her low back in the accident on 8 November 2016. Further, there was no dispute that following the injury to her back on 8 November 2016, Mrs Winiarski underwent surgery to her lumbar spine on 22 August 2017 and 15 July 2019. There is no dispute that Mrs Winiarski had a fall on 9 November 2019 and injured her right shoulder. The respondent conceded that there was no evidence to the contrary that the surgery proposed by Associate Professor Ireland in his report dated 8 May 2020 was reasonably necessary.
Mr Perry confirmed that the issue to be determined was whether (a) the lumbar spine injury sustained in her employment made a material contribution to the fall on 9 November 2019, and (b) that by the time of the fall, her right shoulder was not already in a state of such advanced and painful pathology that there was already a need for surgery as proposed.
The first matter I propose to decide is whether injury to the right shoulder on 9 November 2019 was consequential upon the accepted back injury.
In Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang), Kirby P stated at [462E]:
“Since that time, it has been well recognised in this jurisdiction that an injury can set in train a series of events. If the chain is unbroken and provides the relevant causative explanation of the incapacity or death from which the claim comes, it will be open to the Compensation Court to award compensation under the Act.”
Further, his Honour stated at [463]–[464]:
“The result of the cases is that each case where causation is in issue in a workers’ compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death ‘resulted from’ the work injury which is impugned.”

The High Court in Comcare v Martin (2005) HCA 26 (Martin) considered the extent to which one can rely on a “common sense approach”.
In Martin the High Court stated at [42]:
“Causation in a legal context is always purposive. The application of a causal term in a statutory provision is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose. It has been said more than once in this Court that it is doubtful whether there is any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm.” (Footnotes omitted)
In Martin the High Court referenced its decision in Allianz Australia Insurance Ltd v GSF Australia Pty Ltd 3, wherein it was stated:
“[96] Santow JA also emphasised that this question of causality was not at large or to be answered by ‘common sense’ alone; rather, the starting point is to identify the purpose to which the question is directed. Those propositions should be accepted. The following may be added.
[97] First, in March v Stramare (E&MH) Pty Ltd, McHugh J doubted whether there is any consistent ‘commonsense notion of what constitutes a ‘cause’, and added:
‘Indeed, I suspect that what common sense would not see as a cause in a non- litigious context will frequently be seen as a cause, according to common sense notions, in a litigious context. This is particularly so in many cases where expert evidence is called to explain a connexion between an act or omission and the occurrence of damage. In these cases, the educative effect of the expert evidence makes an appeal to common sense notions of causation largely meaningless or produces findings concerning causation which would often not be made by an ordinary person uninstructed by the expert evidence.’”
However, as I understand it, Kirby P in Kooragang when referring to applying “common sense” was not suggesting it be applied “at large” or that issues were to be determined or answered by "common sense" alone, instead of by a careful analysis of the evidence.
The respondent referred to the decision in Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49. Roche DP at [57] and [58] said:
“57. Moreover, even if the fall at Coles contributed to the need for surgery, that would not necessarily defeat Ms Murphy’s claim. That is because a condition can have multiple causes (Migge v Wormald Bros Industries Ltd (1973) 47ALJR 236; Pyrmont Publishing Co Pty Ltd v Peters (1972) 46WCR 27; Cluff v Dorahy Bros (Wholesale) Pty Ltd (1979) 53WCR 167; ACQ Pty Ltd v Cook [2009] HCA 28 at [25] and [27]; 237 CLR 656. The work injury does not have to be the only, or even a substantial, cause of the need for the relevant treatment before the cost of that treatment is recoverable under s 60 of the 1987 Act.
58. Ms Murphy only has to establish, applying the commonsense test of causation (Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796), that the treatment is reasonably necessary “as a result of” the injury (see Taxis Combined Services (Victoria) Pty Ltd v Schokman [2014] NSWWCCPD 18 at [40]- [55]). That is, she has to establish that the injury materially contributed to the need for the surgery (see the discussion on the test of causation in Sutherland Shire Council v Baltica General Insurance Co Ltd (1996) 12 NSWCCR 716.”
The respondent submitted that Mrs Winiarski had the onus of proving the consequential condition, that is, the injury to the right shoulder, and that I could not be satisfied on the evidence that the fall was not fully explained by her catching her foot on a junction between uneven pavers.
The respondent argued that Mrs Winiarski was not a reliable or truthful witness and her evidence revealed that she was a witness who was prepared to be untruthful to doctors and in her evidence in the proceedings in the Commission. In particular, reference was made to Mrs Winiarski giving a history to Associate Professor Ireland and Dr Petchell of there being no previous problems with the right shoulder, when she had clearly reported problems with the right shoulder from time to time over the previous 10 years and as recently as 31 October 2019, that is, nine days before the fall on 9 November 2019.
In cross-examination, Mrs Winiarski denied that prior to the fall on 9 November 2019 she had a history over ten years of problems with her right shoulder and respondent with “No, absolutely not” (Transcript 28 at 15-17) and explained that she “used to work in a nursing home, I worked in the kitchen, I served dinners, it was hard work and I often complained about my shoulder”. (Transcript p 28 at 25-30).
In her statement dated 20 January 2020 Mrs Winiarski stated that before the fall on 9 November 2019 that her right shoulder was fine. In cross-examination, Mrs Winiarski was asked (transcript p 42 at 2-20)
“Q. If your shoulders were hurting all the time, Ms Winiarski, why did you say in your statement of 20 November 2020 that before your fall your right shoulder was fine?
A. (INT) It’s not like that, it’s not like that my shoulders hurt all the time, it’s they hurt when I did hard physical work but then it went and I was able to function normally and go to work.
Q. But 10 days before you fell you told Dr Ortiz that your – and I do put this – that your main problem was your right shoulder? Didn’t you?
A. (INT) That’s what’s written, yes.
Q. And that’s what you said to her? I withdraw that. Do you have no recollection of saying that to Dr Ortiz 10 days before your fall?
A. Of course not. I don’t remember.”
In the clinical notes of Green Valley Medical Practice, the first reference to the right shoulder was on 24 August 2009 when it was recorded that Mrs Winiarski complained of a sore right shoulder. On examination Dr Bartos found a tender right shoulder with a reduced range of movement and considered that the problem might be impingement. A right shoulder ultrasound was requested and an injection of Celestone chondrose under ultrasound guidance was requested. An entry dated 26 August 2009 noted that ultrasound showed subacrominal subdeltoid bursitis with impingement. In an entry on 16 September 2009, Dr Bartos noted that the right shoulder was better but still sore and a prescription was given for a second injection of Celestone chondrose and Lignoc.
The next reference to the right shoulder was on 14 June 2013 when Dr Bartos noted a history of a sore right shoulder after serving “an ice” at work. He noted that there was a tender bicep tendon and Mrs Winiarski was referred for an ultrasound of the right shoulder. In an entry dated 15 July 2013 Dr Ortiz noted that the ultrasound results showed a partial thickness tear of the subscapularis tendon and subacrominal bursitis. Dr Ortiz noted the right shoulder had been painful for two months and that Mrs Winiarski worked in a kitchen, frequently stacking plates, lifting plates and utensils. In an entry dated 12 August 2013 Dr Bartos noted that the right shoulder was still sore, there was reduced range of motion and the physiotherapist advised a cortisone injection. A request for Hydrocortisone injection in the right shoulder under ultrasound guidance was made.
On 16 July 2016, Dr McMahon noted “joint pains one year worsening …right shoulder pain months…” Dr McMahon noted that the “right shoulder was tender, deltoid with painful restricted range of movement.” Reason for contact was polyarthralgia and a diagnosis of right shoulder impingement was made. An ultrasound of the right shoulder was requested. On 21 July 2016 Dr McMahon noted that the results of the ultrasound of the right shoulder had been notified and further diagnostic imaging was requested for the right ankle and spine.
On 20 September 2017 (following the back injury on 8 November 2016 and the first operation on the lumbar spine on 22 August 2017) Dr Ortiz referred to Mrs Winiarski being sore along the trapezius muscle/shoulder blade because “back is sore from surgery” and she would get out of bed by pushing herself up with the right arm. Dr Ortiz reported pain over the “traps” with movement of the right shoulder.
On 28 December 2017 Mrs Winiarski attended Dr Soon Leong Jee at Cecil Hills Medical Centre. Dr Jee noted that Mrs Winiarski complained of a left ear blockage and right shoulder pain. Dr Jee recommended an ultrasound. On 11 January 2018 Dr Jee noted that the ultrasound reported as subacrominal bursitis with partial thickness tear of the subscapularis tendon.
On 29 August 2018 Dr Ortiz noted that Mrs Winiarski complained of bilateral shoulder pain “R>L- has been x1 month – restricted ROM, tender posterior joint line - no injury”. A bilateral shoulder ultrasound was requested. On 10 September 2018, Dr Ortiz discussed the results of the ultrasound noting there was adhesive capsulitis but no tear.
On 24 June 2019 Dr Ortiz noted that Mrs Winiarski was waiting for approval for a further back operation and noted that “main concern at the moment is right shoulder”. Dr Ortiz reported that the shoulder was painful with moderately restricted movement and the ultrasound last year showed adhesive capsulitis. CT guided hydrodilation was requested.
On 31 October 2019 Dr Ortiz noted that the main problem now was “right shoulder – frozen shoulder, has had 3 cortisone injections but still has restricted movement – abduction to 90°, extension to 90°, restricted internal rotation, will try physiotherapy again”. Under “Reason for Contact” Dr Ortiz wrote: “Capsulitis – shoulder”.
Mrs Winiarski, in her statement dated 20 November 2020, said that after she went home following the second operation to her lumbar spine on 15 July 2019, she got back to walking very slowly, but it took her a long time and she had a lot of dizziness and weakness in the right knee when walking. She stated that pain in her low back and right leg improved for a short period but returned over the coming months and she still had numbness in her right leg. She described her walking as very slow and measured and said that she had weakness in her right leg, right upper thigh, knee and right calf. She said that she felt a lot of numbness and weakness and her right leg felt different and there were pins and needles there.
Mrs Winiarski stated that when she consulted with Dr Ortiz on 31 October 2019, she told Dr Ortiz that she was having pain in her right shoulder and that up to that stage she had three cortisone injections in the shoulder. She stated that she did have some pain in her shoulder at the time.
I accept that Mrs Winiarski made a number of complaints about her right shoulder in the period between 24 August 2009 and 9 November 2019. I accept that Mrs Winiarski attended her general practitioners both at Green Valley and Cecil Hills on multiple occasions for many other medical reasons and the right shoulder was not referred to in many of these consultations. I am satisfied that Mrs Winiarski had intermittent problems with her right shoulder over the years for which she required investigations and treatment and that some of those problems had caused her pain for some months. However, throughout this period until the injury to the lumbar spine on 8 November 2016 she performed physically demanding work duties as a kitchen hand despite her intermittent complaints regarding the right shoulder. Indeed, Mrs Winiarski continued to perform some suitable duties following the back injury from time to time until she was certified totally unfit for work. I accept that Mrs Winiarski did not recall the precise details of the histories that she gave to various doctors concerning her right shoulder before the fall on 9 November 2019. However, it is implausible that she did not recall anything of the history and complaints made in respect of the right shoulder since 2009.
I have some concern about the history that Mrs Winiarski gave to Associate Professor Ireland of no symptoms in the right shoulder prior to the fall on 9 November 2019. Mrs Winiarski also told Dr Petchell that there was no previous history of shoulder pain, injury or dislocation. There is no doubt that Mrs Winiarski had reported problems with the right shoulder from time to time over the last 10 years and as recently as 31 October 2019, that is, nine days before the fall on 9 November 2019. Mrs Winiarski addressed this issue by saying in effect that she used to work, often complained about her shoulder, the pain would settle, and she had not made a claim for the right shoulder before the fall on 9 November 2019. However, in circumstances where she had seen doctors on about 15 occasions since 2009 about her right shoulder, had about four ultrasounds of the right shoulder, attended physiotherapy for the right shoulder in 2013 and 2016 and had number of cortisone injections in the right shoulder, it is difficult to see how she could have provided a history of having no previous problems in the right shoulder. Her failure to give a proper history to these doctors impacts on the weight that can be given to her evidence. There is a serious question in my view as to the reliability of her stated recollections and whether they can be relied upon having regard to the onus of proof.
Mrs Winiarski said that she fell over and injured her right shoulder on 9 November 2019. She stated that she was walking along the footpath and as she walked she felt a numbness and weakness in the right leg, lost feeling in the right leg and fell over onto her right shoulder. She described her right leg as “just went out from under me”. She stated that as a result the pain in her right shoulder was a lot worse.
In her oral evidence Mrs Winarski was cross-examined about the reason why she fell on 9 November 2019. At pages 10-11 of the transcript, she gave the following evidence:
“A. (INT) There are lots of unevenness on that pavement, almost every junction is uneven.
Q. Thank you. But you didn’t put that into your statement?
A. (INT) I didn’t think of this, I didn’t think it was important. I thought it was more important to say – to bring everyone’s attention to the fact that my leg was failing me.
Q. Yes, I’m sure that you did, Ms Winiarski, but when you speak of an uneven pavement you are telling us, aren’t you, that there are places on that pavement where one part of the pavement is higher than another?
A. ... (not transcribable 00:20:18)…
Q. And where the two meet, somebody who’s walking can catch his or her foot on the higher piece of pavement, that’s correct, is it not?
A. (INT) I suppose so but that’s not what happened to me, I didn’t pay attention.
Q. You didn’t pay attention. Does that mean you didn’t pay attention to the unevenness of the pavement?
A. (INT) Yes, I did but I was trying to avoid them.”
Further at pages 45-47:
“Q. So my question, Ms Winiarksi, is a simple one. After you fell on the 9th you saw Dr Vyas, V-Y-A-S, on Monday, the 11th, didn’t you?
A. Yes, yes.
Q. And you said to Dr Vyas:
‘On Saturday I was walking and I tripped and fell forwards.’
That’s what you said, isn’t it?
A. I didn’t ...(not transcribable 01:45:33).. the difference between fall and trip, I didn’t know how to explain it in English.
Q. Thank you. But you told us that you know what the word trip means in English, you’ve already told us that today, have you not?
A. Now it’s different because I know.
Q. You knew in 2019 what the meaning of the word trip was in English, didn’t you?
A. No, no, at the time ...
Q. You were saying to us, Ms Winiarski, that in 2019 after you’d been talking in very detailed terms to Dr Ortiz, are you saying to us that you had – that you did not know what the word trip meant?
A. (INT) At the time when were ... (not transcribable 01:47:25).. .the accident when we were talking about it I really did not know the difference between trip, slip. All I know is I fell and I didn’t think how to express it accurately.
Q. So it’s quite possible that the reason that you fell is because your foot caught on uneven pavement?
A. I don’t think so.
Q Why not?
A. (INT) I knew ... (not transcribable 01:49:59)...when I went back there with my husband even later to have a look and we couldn’t see in that particular place, well, more or less, of course, from what I remembered and there was no unevenness in that place and when I fell I even partially fell onto the grass.
…
All right. See, you told us earlier on, this very day, that the pavement was uneven in many places, didn’t you?
A. (INT) Yes, it is uneven. But I can’t remember exactly that place, the particular place.
Q. But you know why you felt – you know why you fell, don’t you?
A. (INT) My leg gave way.
Q. I see. You knew when you saw Dr Vyas that the reason that you fell was because you had tripped on the junction of an uneven pavement, didn’t you?
A. (INT) It’s possible to trip or slip or fall. I mean, all I know is that my leg gave way and maybe then I tripped. I trip, slip, I really don’t know what the difference is.”
In re-examination at page 48:
“Q. Well, when you explained to Dr Ortiz what happened when you fell you said:
“I fell when I tripped on the junction of an uneven pavement. I think it is because my right leg is weak from the back injury. My leg did not give way.”
Is that what you said?
A. (INT) What’s the difference? The leg was weak then, it is still weak now, I still have pins and needles in it. I really don’t see what the difference is.”
Mrs Winiarski did not impress me as a witness and I did not find her answers as to why she had not provided a history of her past right shoulder problems to Associate Professor Ireland and Dr Petchell convincing.
The first report of the fall on 9 November 2019 was made to Dr Viyas on 11 November 2019. Dr Vyas wrote: “…On Sat was walking and tripped and fell forward. Has been sore in R upper limb since. Does not think any fractures.”
The next report concerning the fall on 9 November 2019 was made to Dr Bartos on 21 November 2019 who merely reported “Recent injury, fell on right shoulder … gross reduction in right shoulder movement, tender bipetal insertion.”
Dr Ortiz on 28 November 2019 then reported that Mrs Winiarski had slipped and fallen while walking two weeks ago and landed on the right arm and had a very painful upper arm and elbow and went to another medical practice and had an “x‑ray– no fracture”.
In an entry dated 4 December 2019, Dr Ortiz noted that there was a discussion of the ultrasound “bursitis, no tear” and Mrs Winiarski was referred for an US guided cortisone injection in the right shoulder.
The next clinical entry relating to the mechanism of the fall was on 22 January 2020, when Dr Ortiz noted:
“patient said she fell when she tripped on the junction of an uneven pavement - said she thinks it is because her right leg is weak from the back injury - leg did not give way on her however - not sure that shoulder injury is related to the back problem but will include in the medical certificate in the meantime level of pain not consistent with US findings from Dec – will do MRI.”
Dr Ortiz in a report to the insurer dated 24 February 2020, described the onset of symptoms as: “Slipped and fell landing on her right arm mid‑November 2019, Miroslava has no symptoms pertaining to her shoulder prior to this.” Dr Ortiz expressed the view that the injury to the right shoulder related to the original work injury to the lower back on 8 November 2016 and wrote: “Miroslava has a persistent numbness and weakness on her right leg as a result of the original back injury, this would have contributed to her fall which resulted in right shoulder injury.”
None of the other doctors, apart from Dr Viyas and Dr Ortiz, referred to Mrs Winiarski tripping. Associate Professor Ireland noted that Mrs Winiarski had some persistent weakness in the right leg and fell landing on her right shoulder. Dr Petchell noted that Mrs Winiarski had fallen as a result of right leg weakness. Dr Habib noted that the injury occurred when the right leg gave way and Mrs Winiarski fell hitting her right shoulder area. Dr Panjratan noted that Mrs Winiarski had fallen in November 2019 due to persistent weakness in the right leg having felt a sensation of numbness going down the right leg.

Mrs Winiarski’s evidence as to how she fell as set out in her statement and in her oral evidence was, in the main, consistent in that she maintained that her leg gave way causing her to fall. She did concede that her leg may have given way and maybe she then tripped. However, Mrs Winiarski did not actually deny telling Dr Ortiz that she tripped on an uneven pavement and that her leg did not give way.
The question of the weight to be placed on the clinical note taken by Dr Ortiz on 22 January 2020 must be considered. I accept that care must be taken when assessing the meaning to be drawn from clinical notes and whether any inconsistency between the notes and Mrs Winiarski’s evidence is sufficient to undermine Mrs Winiarski’s case. The notes are obviously a summary prepared by Dr Ortiz and not a verbatim recording. Mrs Winiarski’s fluency in English is also another matter to be taken into account. An additional factor in considering the weight to be placed on Dr Ortiz’s notes is the response given by Dr Ortiz in the report to the insurer dated 24 February 2020 to the question “Has there been any non-work related incidents or pre-existing factors contributing to the current symptoms in the shoulder”. Dr Ortiz replied: “No, Miroslava has no symptoms pertaining to the shoulder prior to the fall.” Clearly this response was incorrect in view of the long history of complaints concerning the right shoulder and the clinical notes made by Dr Ortiz on 31 October 2019 which included a diagnosis of frozen shoulder. Because of this response in the report of 24 February 2020 I need to consider whether there may be some doubt as to the accuracy of Dr Ortiz’s notes, and reliability of parts of her evidence.
The clinical note taken by Dr Ortiz on 22 January 2020 contained more detail than many other clinical entries and was made in the context of Dr Ortiz being requested to include the right shoulder in the workcover certificate. In order to do so, Dr Ortiz properly made enquiries of Mrs Winiarski as to how the fall had occurred. Dr Ortiz noted two important factors, first, that Mrs Winiarski tripped on the junction of an uneven pavement and, second, that her leg did not give way. The report by Dr Ortiz of a trip was consistent with the earlier note taken by Dr Viyas two days after the fall on 9 November 2019. The fact that Dr Ortiz noted that Mrs Winiarski thought that her right leg weakness was a factor does not change the fact that Dr Ortiz reported that Mrs Winiarski tripped over an uneven junction in the pavement.
Mrs Winiarski submitted that the words trip and fall had the same meaning to her and she did not understand the difference between the words. I do not accept this submission as there did not appear to be any other significant instances of language problems in communicating with Dr Ortiz, who had been treating Mrs Winiarski since about 2010. Further, there was no suggestion that Mrs Winiarski did not understand what it meant when she told Dr Ortiz that her leg did not give way.
Mrs Winiarski was cross-examined concerning the pavement where she fell and gave evidence that there was a lot of unevenness on the pavement saying “almost every junction is uneven”. She gave evidence that she returned to the pace where she fell with her husband and found that there was no unevenness in the place where she fell. However, she then later said: “Yes it is uneven. But I can’t remember exactly that place, the particular place.” Mrs Winiarski’s evidence concerning the place where she fell was contradictory is that she said that there was no unevenness and then that she could not recall the place.
The respondent argued that the problems with the right leg had resolved after the surgery on 15 July 2019. Mrs Winiarski gave evidence that the pain in my low back and right leg had improved for a short period after the operation but returned over the coming months. She said that she still had numbness in her right leg and weakness in my right leg, my right upper thigh, my knee and my right calf. In cross-examination she said that “The leg was weak then, it is still weak now, I still have pins and needles in it.”
I am satisfied that a review of the clinical notes from 6 November 2016 revealed numerous reports of intermittent numbness in the right leg and residual right knee weakness when walking after the second operation. I note for example that on 12 April 2018 Dr Ortiz reported that Mrs Winiarski’s pain was much better and the low back pain and pins and needles down the right leg had resolved although there was some pain down the back of the right thigh and leg. On 29 November 2018, Dr Ortiz noted that right buttock and leg pain “comes and goes”. However, on 7 May 2018, Dr Ortiz reported that Mrs Winiarski had throbbing pain down the right leg particularly at night. On 3 October 2018, Dr Ortiz noted that there had been an exacerbation of low back pain and right leg pain. On 29 November 2018, Dr Ortiz noted that there was right buttock and right leg pain which “comes and goes despite not doing much physical activities”. On 21 February 2019, Dr Ortiz noted that there was worsening radiculopathy and the symptoms were getting worse. Dr Lim, on 22 July 2019, noted Mrs Winiarski complained of residual right knee weakness when walking. On 26 August 2019, Dr Ortiz noted that Mrs Winiarski was still getting pain from the back and down the right leg and left buttocks which was throbbing, “grabbing” and not the same pain on the right leg as she was getting before. Dr Sergides, on 27 August 2019, noted that there had been an improvement in symptoms in the right leg and the pain previously experienced had gone and been replaced with a paraesthesia. Dr Habib, in his report dated 18 February 2021, noted that Mrs Winiarski had partial relief of right leg pain after the surgery on 15 July 2019 but continued to experience paraesthesia and right leg weakness. He noted that Mrs Winiarski said that the right leg gave way at times. Dr Petchell, in his report of 10 August 2020, noted that Mrs Winiarski had undergone two surgical procedures which unfortunately failed to address her right leg weakness.
I accept that the notes and reports demonstrate that the back and right leg symptoms following the back surgery varied from time to time. Although Dr Ortiz reported on 26 September 2019 that the pain in the right leg had gone and on 31 October 2019 that the numbness had gone, I was not satisfied on balance that this situation continued and Mrs Winiarski experienced no further pain in the right leg after September 2019 or numbness in the right leg after 31 October 2019. However, in making this finding I have relied on the evidence given by Dr Ortiz, Dr Habib and Dr Panjratan rather than the evidence of Mrs Winiarski. In an entry dated 2 January 2020 Dr Ortiz noted that Mrs Winiarski found if she drove for more than 20 minutes then her right leg became stiff and painful as well as her lower back. In an entry dated 3 February 2020 Dr Ortiz referred to an onset of left sided back pain. In a report dated 24 February 2020, Dr Ortiz wrote: “Miroslava has a persistent numbness and weakness on her right leg as a result of the original back injury, this would have contributed to her fall which resulted in right shoulder injury”. In a report dated 23 July 2021, Dr Habib noted that Mrs Winiarski had a further fall on 9 March 2020 when her right leg gave way. Dr Panjratan also recorded details of the further fall although he appeared to confuse it with the earlier fall on 9 November 2019. However, I note that Mrs Winiarski was not challenged about the circumstances or cause of the fall on 9 March 2020.
On balance, I am satisfied that Mrs Winiarski continued to experience intermittent numbness in the right leg and residual right knee weakness when walking after the second operation and that this did not resolve. However, the fact that Mrs Winiarski continued to experience intermittent numbness in the right leg and residual right knee weakness does not mean that right leg weakness was necessarily a causative factor in the fall on 9 November 2019.
There are, in my view, three possible mechanisms of injury. First, Mrs Winiarski could have tripped on an uneven pavement and fallen onto her right shoulder. Second, Mrs Winiarski’s right leg could have given way causing her to fall to the ground and onto her right shoulder. Third, weakness in the right leg may have contributed to Mrs Winiarski falling to the ground and onto her right shoulder.
As noted above, the most contemporaneous report of what happened was made by Dr Viyas on Monday, 11 November 2019 and he recorded that Mrs Winiarski tripped and fell injuring her right shoulder on Saturday (that is, 9 November 2019). The next report was on 12 November 2019, by Dr Bartos who reported that there had been a “recent injury, fell on right shoulder”. Dr Ortiz on 28 November 2019, Dr Ortiz noted that Mrs Winiarski had slipped and fallen while walking two weeks ago and landed on the right arm. Then on 22 January 2020, Dr Ortiz wrote a more detailed entry noting that Mrs Winiarski had seen her solicitor and was told to get workers compensation medical certificate for shoulder as related to her back. Dr Ortiz reported that Mrs Winiarski said she fell when she tripped on the junction of an uneven pavement and said she thought it was because her right leg is weak from the back injury. Then Dr Ortiz wrote: “leg did not give way on her however not sure that shoulder injury is related to the back problem but will include in the medical certificate.” However, by 24 February 2020, Dr Ortiz expressed the view that Mrs Winiarski had a persistent numbness and weakness on her right leg as a result of the original back injury and that this would have contributed to her fall which resulted in right shoulder injury.
On balance I am not persuaded that any persistent numbness and weakness in the right leg from the back injury on 18 November 2016, or unreliability of the right leg, contributed to cause Mrs Winiarski to fall on 9 November 2019. I am satisfied on balance that Mrs Winiarski tripped and fell on the junction of an uneven pavement. I do not accept that as a result of the back injury on 8 November 2016 that she fell because her right leg failed to support her.

113.In Hancock v East Coast Timber Products Pty Limited 2011 NSWCA 11(Hancock) Beazley JA said at [81]-[85]:

“Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert's report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010]NSWCA 162 at [19] per Hodgson JA. ...
... what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”

The opinions of the expert witnesses as to the cause of the fall do not assist Mrs Winiarski as their reports were not based on an accurate and reliable history, Dr Petchell reported that Mrs Winiarski had a fall as a result of her right leg weakness but he was not told about a trip on the uneven pavement so did not have the opportunity to assess whether that caused the fall rather than weakness in the right leg. Dr Petchell was not aware that Mrs Winiarski had told Dr Ortiz that her right leg did not give way. Similarly, Associate Professor Ireland was not informed that Mrs Winiarski had tripped on uneven pavement nor was he told that she told Dr Ortiz that her right leg did not give way. Further, Associate Professor Ireland, in his supplementary report dated 30 July 2021, only referred to some of the clinical notes of Dr Ortiz concerning the right shoulder and did not refer to any of the relevant notes made in 2018 and 2019. In particular, there was no reference to the diagnosis of adhesive capsulitis on 24 June 2019 or the entry on 31 October 2019, nine days before the fall, which referred to frozen shoulder, a restricted range of movement and capsulitis.
Dr Habib was told by Mrs Winiarski that her right leg had given way when coming home from the chemist. This account was inconsistent with the account given by Mrs Winiarski to Dr Ortiz. Dr Habib in his report of 23 July 2021 referred to receiving the progress notes of Dr Ortiz yet stated that he did not find any entries between August 2016 and the fall on 9 November 2019. It was odd that no reference was made by Dr Habib to the various entries concerning he right shoulder in 2017, 2018 and in 2019 before the fall on 9 November 2019.
Associate Professor Ireland, Dr Petchell and Dr Habib did not take into account the complete history concerning Mrs Winiarski’s right shoulder problems and, in particular, these doctors did not adequately consider the earlier history of the right shoulder condition in 2019. None of these doctors had a history of her right shoulder condition that was consistent with the clinical record.
I have concluded that Mrs Winiarski’s history of her right shoulder condition was significantly different to that recorded by the medical practitioners and so it cannot be said that what Associate Professor Ireland, Dr Habib or Dr Petchell had recorded provided a fair climate for their respective opinions (Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505). In those circumstances, no real weight can be placed on the opinions of those doctors as to causation of the right shoulder injury.
In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall J said (McColl JA and Bell JA agreeing):
“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.”
The evidence in this matter was such that I did not feel an actual persuasion that any persistent numbness and weakness in the right leg from the back injury on 18 November 2016 contributed to cause Mrs Winiarski to fall on 9 November 2019. I was not satisfied that the fall on 9 November 2019 occurred in the manner alleged by Mrs Winiarski. Mrs Winiarski’s own evidence and the medical evidence of Associate Professor Ireland, Dr Habib and Dr Petchell was insufficient for her to meet the onus of establishing compensable “injury”, on the balance of probabilities.
I am satisfied on balance that Mrs Winiarski tripped and fell on the junction of an uneven pavement. I do not accept that as a result of the back injury on 8 November 2016 that she fell because her right leg failed to support her. Mrs Winiarski has failed to establish that the injury to the lumbar spine on 18 November 2016 made a contribution to the fall on 9 November 2019. Mrs Winiarski has failed to discharge the onus upon her to establish that she sustained a consequential injury to her right shoulder as a result of the injury to her lumbar spine.
It is not necessary in view of the findings made above for me to determine whether the treatment proposed by Professor Ireland was reasonably necessary.
For these reasons, there will be an award for the respondent in relation to this matter.

[2022] NSWPIC 72

18 February 2022