Woods v Coates Hire Operations Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Woods v Coates Hire Operations Pty Ltd [2021] NSWPIC 214
APPLICANT:	Brendon Woods
RESPONDENT:	Coates Hire Operations Pty Ltd
MEMBER:	Brett Batchelor
DATE OF DECISION:	28 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for permanent impairment as a result of undisputed injury to left upper extremity and condition in the right upper extremity (shoulder) consequent upon the injury to the left upper extremity; applicant claims that he favoured his injured left upper extremity which gave rise to the condition in the right shoulder; detailed examination of the treating and qualified medical evidence; reliance placed on the Presidential decisions of Schembri v Blacktown City Council and Murphy v Allity Management Services Pty Ltd on the issue of whether the applicant had discharged the onus on him to show a causal connection between the left upper extremity injury and the right shoulder condition; reliance also placed of the decision of Wood DP in Ly v Jitt Offset Pty Ltd in respect of the opinions expressed in the expert medical evidence; Held- finding in favour of the applicant that the right shoulder condition arose as a consequence of the injury to the left upper extremity; determination the respondent liable to pay lump sum compensation pursuant to section 66 of the 1987 Act in respect of injury to the left upper extremity and right upper extremity in accordance with the assessments of one of the independent medical examiners in evidence; respondent also ordered to pay applicant’s section 60 expenses in respect of the right shoulder condition.
DETERMINATIONS MADE:	1. The applicant suffered a condition in his right upper extremity (shoulder) consequent upon injury to the left upper extremity on 21 March 2018. 2. The respondent is to pay the applicant $96,170 compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 for 33% whole person impairment as a result of injury to the left upper extremity on 21 March 2018 and condition in the right upper extremity (shoulder) consequent thereon. 3. The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the Workers Compensation Act 1987 in respect of the applicant’s right shoulder condition.

STATEMENT OF REASONS

BACKGROUND

Brendan Woods (the applicant/Mr Woods) claims compensation for permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) as a result of injury to his left upper extremity (wrist, hand and thumb) on 21 March 2018, and a condition in his right upper extremity (shoulder) consequent upon the injury to the left upper extremity.
The respondent does not dispute the injury to the left upper extremity but does dispute the condition in the right shoulder claimed to be consequent upon the left upper extremity injury. It relies on an opinion of Dr J Bosanquet, orthopaedic surgeon, who independently medically examined the applicant initially on 16 July 2020 and produced a report on 21 July 2020[1].
[1] Reply p 95, (noting that all page number references in this Statement of Reasons are to the electronic page numbers in the Commission’s records).
Dr Bosanquet expressed the opinion that there was evidence of a pre-existing condition in the applicant’s right shoulder with a downsloping acromion causing impingement which had been exacerbated by his employment. The doctor noted that as the injury was over two years prior to his examination of the applicant, the aggravation to the right shoulder had ceased.
In support of his claim in respect of the right shoulder condition, Mr Woods relies on the opinion of Dr Uthum K Dias, consultant occupational physician, who independently medically examined him on 17 November 2020 and produced a report of that date[2]. Dr Dias diagnosed that the applicant “…suffers from a consequential right shoulder impingement syndrome with associated chronic subacromial bursitis and a partial thickness rotator cuff tendon tear, secondary to prolonged over compensation for his aforementioned left wrist/left thumb injury.”[3] The doctor noted that the right shoulder condition first manifested in mid-2019.
[2] Application to Resolve a Dispute (Application) p 41.
[3] Application p 55.
Dr Bosanquet saw the applicant on two occasions subsequent to 16 July 2020, namely on
[4] Reply p 113.
17 September 2020 and 21 January 2021. In the report dated 2 February 2021[4] following the last consultation Dr Bosanquet assessed the applicant as having sustained 28% whole person impairment (WPI) as a result of injury to the left upper extremity and 1% WPI from scarring resulting from the surgery to the left upper extremity referred to hereunder, for a total of 29% WPI. He assessed 5% WPI in respect of the right shoulder condition, notwithstanding his opinion that it was not as a result of injury arising out of or in the course of the applicant’s employment with the respondent.
Dr Dias assessed the applicant as having sustained 36% WPI as a result of injury to the left upper extremity, 1% WPI as a result of scarring and 10% WPI as a result of the right shoulder condition for a combined WPI of 43% using the Combined Values Chart[5].
[5] Application p 57.
Mr Woods underwent surgery on his left hand and wrist on four occasions following the injury on 21 March 2018, namely on:
(a)    20 April 2018, left wrist arthroscopy and repair of scapholunate ligament by Professor Randy Bindra (Dr Bindra)[6];
(b)    30 November 2018, left wrist debridement of scar tissue plus open carpal tunnel release by Dr Bindra[7];
(c)    23 July 2019, left wrist arthroscopy and arthrolysis by Dr Nicholas Smith[8], and
(d)    31 October 2019 left total wrist fusion with proximal row carpectomy, by Dr N Smith[9].
[6] Application p 141 and Dr Dias’s history at Application p 48..
[7] Application pp 144 and 182.
[8] Application to Admit Late Documents dated 18 June 2021 (AALD) p 3.
[9] Application p 166.
In his statement dated 13 April 2021 in evidence[10] Mr Wood says that he did not injure his shoulder at the time of injury, but that right shoulder pain developed as a result of over-use as a consequence of the injury to his left arm which he noted had been accepted. The pain in his right shoulder did not develop until towards the end of 2019.
[10] Application p 5.
Mr Woods is right hand dominant.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) Is the condition in the applicant’s right shoulder constitutional in nature or consequent upon the undisputed injury to the left upper extremity sustained on
21 March 2018?
(b) Is the respondent liable to pay the applicant’s costs and expenses pursuant to
s 60 of the 1987 Act in respect of the applicant’s right shoulder condition (see [11] hereunder)?

The parties agree that in the event of a finding in the applicant’s favour in respect of the consequential condition in the right shoulder, the applicant will accept the assessments of WPI made by Dr Bosanquet of 29% for the left upper extremity and 5% for the right upper extremity, thereby obviating the need for referral of the matter to a Medical Assessor for assessment. However, in the event of a finding adverse to the applicant in respect of the right shoulder condition, the issue of permanent impairment as a result in injury to the left upper extremity and scarring is to be referred to a Medical Assessor for assessment.

Matters not previously notified

At the commencement of the arbitration hearing the applicant applied to amend the Application to include a claim for a general order pursuant to s 60 of the 1987 Act for medical and treatment expenses. This was opposed by the respondent on the basis that it was not included in the case that the respondent had come to meet, and that potentially, if there was a finding in favour of the applicant in respect of the right shoulder condition, the respondent could be exposed to the cost of surgery thereon.
The applicant relied upon the finding of the Deputy President Roche in Sydney South Western Area Health Service v Avery[11] in support of his application that the amendment should be allowed. That is, a general order under s 60 is of limited efficacy, and that if such an order is made, it is still open to a respondent to dispute whether the cost of the treatment claimed is reasonably necessary as a result of injury.
[11] [2007] NSWWCCPD 213 at [55].
It was noted that the respondent had paid for the cost of some radiological investigation and treatment of the right shoulder condition, namely, an ultrasound scan of the right shoulder on 23 December 2020, an ultrasound guided injection in the right shoulder on 16 January 2021[12] and an MRI scan of the right shoulder on 20 February 2021[13]. Whilst the payment for such investigation and treatment does not constitute an admission on the part of the respondent, for the reason put forward by the applicant referred to in [12] above, the amendment to the Application to include an application for a general order pursuant to s 60 of the 1987 Act was allowed.
[12] Application pp 232 and 233.
[13] Noted by Dr Dias at Application p 45.

PROCEDURE BEFORE THE COMMISSION

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.
The matter proceeded to arbitration hearing on 23 June 2021 conducted via telephone conference. Mr A Parker of counsel appeared for the applicant briefed by Mr G McKean. The applicant attended on a separate line. Mr R Hanrahan of counsel appeared for the respondent briefed by Mr D Kim. A representative of the respondent’s insurer, Employers Mutual Limited, also attended on a separate line.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents (AALD) and attached documents.

Oral Evidence

There was no application to adduce oral evidence or to cross-examine the applicant.

SUBMISSIONS

The submissions of counsel were recorded and are available to the parties on request. I will not repeat then in full. In summary, they are as follows:

Applicant

In opening submissions the applicant relied upon the findings of the Workers Compensation Commission in Le Twins Pty Limited v Luo[14] and Schembri v Blacktown City Council[15], that is, that a court or tribunal when interpreting a statutory provision should address or interrogate the statutory text, context and purpose of such provision. The expression “as a result of” requires more than a common sense approach, and causation in a legal context is always purposive.
[14] [2019] NSWWCCPD 52 at [30]-[34].
[15] [2020] NSWWCCPD (Schembri) at [105]-[110].
In making such submission, the applicant acknowledges that the “commonsense test of causation” referred to by Roche DP in Murphy v Allity Management Services Pty Ltd[16] can still have application when dealing with the correct test for causation. The applicant submits that on any view, and on the application of any such test, he has discharged the onus on him to show that the condition in his right shoulder arose as a result of the primary injury to the left upper extremity on 21 March 2018.
[16] [2015] NSWWCCPD 49 (Murphy) at [58].
The applicant relies on his statement evidence in that whilst he does not explicitly signify the problems he was experiencing with his left upper extremity following injury on 21 March 2018, he impliedly refers to those problems, and submits that such problems are corroborated by an examination of the clinical material in evidence.
The applicant then refers to selected reports setting out the treatment of his left upper extremity to demonstrate the degree to which he was incapacitated as a result of his injury on 21 March 2018. These reports include those of:
(a)    Dr Ventzi Bonev, neurologist, dated 29 October 2018[17];
(b)    Dr Bindra, orthopaedic hand surgeon, 6 November 2018[18] and 11 October 2019[19];
(c)    Luke McCarron, occupational therapist, dated 27 June 2018 and 11 December 2018[20];
(d)    Dr Nicolas Smith, hand and wrist surgeon, dated 30 May 2019, 12 December 2019 and 2 April 2020[21];
(e)    Dr Seamus Dalton, sports and exercise physician, dated 23 August 2019[22];
(f)    Dr Con Kafataris, injury management consultant, dated 4 March 2020[23];
(g)    Dr Raymond Yean, general practitioner, (referral to Dr Christopher Scott) dated 18 July 2020[24], and
(h)    Dr Laurent Wallace, South West Pain Clinic, dated 14 October 2020[25].
[17] Reply p 11.
[18] Application p 142.
[19] Application p 182.
[20] Application pp 145 and 149.
[21] Application pp 155, 173 and 178.
[22] Application p 191.
[23] Application p 197.
[24] Application p 188.
[25] Reply p 134.
The applicant submits that there is no real dispute as to the degree of impairment of the left upper extremity, which Dr Dias has assessed at 36% WPI and Dr Bosanquet at 29% WPI. The applicant notes Dr Bosanquet’s opinion that:
(a)    he developed an abnormal reaction to pain that, although not CRPS (chronic regional pain syndrome), there were early warning signs that this could be a problem later on[26], and
(b)    he had a limited capacity for work, as due to the symptoms in the left arm he was unable to use this arm in any form of employment and the prognosis for a return to work and pre-injury duties was poor[27],
and also notes
(c)    a repeat of the doctor’s earlier opinion in his latest report dated 2 February 2021[28].
[26] Reply p 101.
[27] Reply p 110.
[28] Reply p 116.
The applicant relies on what was said by Wood DP in Arquero v Shannons Anti Corrosion Engineers Pty Ltd[29] that it is common sense that a person who is not immobilised and attempts to carry out everyday activities despite his right knee difficulties, would be walking about and otherwise using his lower limbs as a matter of course. In this case, it is common sense that he would be using his contra lateral upper right limb because of the significant pain and restriction in the left upper limb.
[29] [2019] NSWWCCPD 3 (Arquero) at [157].
The applicant submits that the injury to his left upper extremity has always been symptomatic notwithstanding the four surgeries he has undergone, and the over use of his right arm because of disuse of the left arm is amply corroborated in the medical evidence. This evidence extends to the recommendations of his doctors contained in the WorkCover certificates of capacity in evidence, where there is frequent reference to instructions from the doctors to avoid pushing or pulling with the left wrist, avoid forceful grip with the left hand and to engage in no forceful use of the left hand/arm[30].
[30] For example Work capacity certificate dated 16 January 2019, Application p 77.
The applicant also relies upon the wasting, or atrophy, in the left arm demonstrated in the medical reports. This is apparent from the reports, inter alia, of:
(a)    Dr Dalton dated 23 August 2019[31];
(b)    Dr Kafataris dated 4 March 2020[32];
(c)    Kinitex dated 4 September 2020[33], and
(d)    Dr Dias 17 November 2020[34].
[31] Application p 191.
[32] Application p 197 at p 198.
[33] Reply p 123.
[34] Application p 41 at p 53.
The applicant criticises the finding of Dr Bosanquet in his report dated 2 February 2021 in that although he notes that the left forearm was paler and slightly reduced in size compared to the right, he does not record any measurement of wastage in the left arm[35].
[35] Reply p 116.
The applicant submits that Dr Dias has provided a reasoned, logical and coherent explanation as to why his right shoulder condition results from the injury to the left upper extremity on 21 March 2021, whereas this has not been done by Dr Bosanquet.
Dr Bosanquet has a wrong history when he records that he had been complaining of intermittent right shoulder pain since his injury, and he does not engage with the proposition that it is the overuse of the right arm that has caused the condition in the right shoulder. In this sense, there has been no rebuttal of the opinion of Dr Dias on the causation of the right shoulder condition. Dr Bosanquet has not considered if the wastage apparent in the left arm was caused by disuse.
The applicant submits that the opinion of Dr Bosanquet that he had a pre-existing condition in the left shoulder is irrelevant, as an employer must accept a worker as it finds him or her. Because of the failure of Dr Bosanquet to engage with the issues referred to in [27]-[28] above, the applicant submits that his opinion is a mere ipse dixit, and that the opinion of
Dr Dias should be accepted.

Respondent

The respondent notes the applicant’s submission that it is “implicit” in his evidence that he overused his right arm because of the problems with the left arm. However, there is little or no specific direct evidence from the applicant as to exactly what activities the applicant is unable to engage in. The respondent also criticises the wording of the applicant’s statement, suggesting that it was drafted with words or terms addressing the matters that had to be proved in the case rather than being the applicant’s own words. The statement is, according to the respondent, “couched in legalities” and not persuasive.
The respondent notes that the assessment of WPI of the left upper extremity of about 30%, both by Dr Bosanquet and Dr Dias, means that the applicant has a two thirds functionality in his left upper limb. This is inconsistent with him having to overuse his right arm.
The respondent notes that there was no complaint of right shoulder symptoms until late in 2019, and that the applicant is vague in his evidence as to the restrictions imposed on him because of his left arm injury. The applicant’s evidence is at odds with the evidence of
Dr Dalton, where the doctor encourages use of the left arm.
The respondent notes the finding of Dr Noah on 1 April 2020[36] that the applicant has a down sloping acromion, and that the MRI revealed impingement in the right shoulder. This is consistent with the finding of Dr Bosanquet. This is also the finding of Dr Yean on 25 February 2020 when referring the applicant to Dr Smith[37].
[36] Application p 193.
[37] AALD p 13.
The respondent seeks to discount the opinions of Dr Smith and Dr Kafataris which it submits rely on the history given by the applicant that he overuses his right arm because of the problem with his left arm.
The respondent submits that there is insufficient evidence adduced by the applicant to satisfy his onus to show that the condition in the right shoulder arose as a result of the injury to the left upper extremity on 21 March 2018.

Applicant in response

The applicant refutes the respondent’s submission that he has two thirds functionality remaining in his left arm as a result of the assessments of WPI by Dr Bosanquet and
Dr Dias. The assessment of Dr Dias is of 60% left upper extremity impairment, which is equivalent to the 36% WPI assessed by him, and Dr Bosanquet’s left upper extremity impairment assessment is 58%, equivalent to 28% WPI.
The applicant also refutes the submission that a delay in the onset of symptoms in the right shoulder is relevant to the issue of causation of those symptoms. In Arquero, the Deputy President found that a delay in the onset of symptoms was irrelevant to a finding of a consequential condition. By the nature of such a condition, it is one that will occur over a period of time, and in this straightforward case, there should be a finding in the applicant’s favour as to the causation of the right shoulder condition.

FINDINGS AND REASONS

At [6] and [7] of his statement dated 13 April 2021 Mr Woods expresses an opinion as to the causation of his right shoulder condition. That is, he says that his “…right shoulder pain developed as a result of over-use as a consequence of injury to the left arm which has been accepted”, and the reason that his right shoulder pain developed towards the end of 2019 was because by that stage, his left arm injury had deteriorated to the point that he had been effectively unable to use that limb for almost any activity of daily living. He says that such activities were “…reaching for anything, holding anything, grabbing anything or carrying anything.”
This opinion may be the reason that the respondent suggests that the applicant’s statement is drafted with words or terms addressing the matters that have to be proved in the case rather than being his own words, and that it is “couched in legalities” and not persuasive.
The opinion expressed by the applicant is on the issue that must be determined by the Commission having regard to the whole of the evidence, in particular the expert medical evidence. Nevertheless, the applicant’s evidence as to his inability to use his left arm for almost any activity of daily living, whilst not detailed, is corroborated by the medical evidence which was the subject of the applicant’s submissions referred to at [22] above. To cite a number of examples from that evidence, I note that:
(a)    on 29 October 2018 Dr Bonev found that the applicant had very restricted range of motion, associated with pain on passive and active movements in the left wrist;
(b)    on 6 November 2018 Dr Bindra found that the applicant had symptoms of carpal tunnel syndrome and that his wrist movement had not improved with therapy, and on 11 October 2019 that following a carpal tunnel release the left wrist remained painful. The doctor noted that a left wrist fusion would seem to be appropriate management for symptomatic post-traumatic arthritis. As the decision to fuse the wrist would be irreversible, the decision on such surgery should be made by the surgeon and the patient with an informed consent of the procedure, explaining the loss of motion and discussing the expected functional limitations imposed by such a procedure;
(c)    on 12 December 2019 Dr Smith reviewed the applicant after the wrist fusion surgery he performed on 31 October 2019 when he recommended continuance of range of motion exercises of the digits and avoiding loading. On 2 April 2020 Dr Smith noted a flare up of symptoms after a recent ultrasound guided corticosteroid injection into the left carpal tunnel, followed by 48 hours of improvement of symptoms;
(d)    on 23 August 2019 (that is before the fusion surgery) Dr Dalton noted that the muscle tone and bulk was poor in the left forearm and that the left wrist was very stiff and quite irritable;
(e)    on 4 March 2020 Dr Con Kafataris noted on examination of the left wrist almost no movement consistent with arthrodesis of the left wrist and that the left wrist and hand were wasted, cold and pale consistent with complex regional pain syndrome. There was a globalised reduction in sensation over most of the left hand consistent with this syndrome, and a global reduction on power for the left upper limb together with an obvious wasting of the upper arm and lower arm of three to four centimetres. Dr Kafataris said that Mr Woods will need to be redeployed in a role that does not require substantial use of the left upper limb, and
(f)    on 14 October 2010 Dr Laurent Wallace noted left hand chronic post procedural pain after four operations, not fitting the criteria for CRPS, as well as right shoulder limitation, likely due to compensation for the left upper extremity which the applicant virtually did not use.
Dr Dias noted on 17 November 2020 that Mr Woods had marked wasting of the left wrist, and extensive forearm muscular wasting in accordance with measurements recorded by him. There was also mild wasting of the thenar and hypothenar muscular eminences of the base of the left palm. Dr Dias’s diagnosis was of chronic severe left wrist pain, stiffness and discomfort with associated posttraumatic radiocarpal/midcarpal osteoarthritis, secondary to an acute scapholunate tear. He noted that Mr Woods continued to suffer with severe left wrist pain, stiffness and discomfort twelve and a half months post wrist left wrist fusion surgery.
A summary of the assessment of the applicant’s left arm by Dr Bosanquet is referred to at [23] above.
I am satisfied that the applicant has suffered very significant loss of use of, and pain in, his left wrist and hand as a result of the injury on 21 March 2018 and that he has been unable to use his left arm for most of the activities of daily living. This is substantiated by the findings recorded by the doctors who have treated the applicant both before and after the last surgery on 31 October 2019, a fusion of the left wrist. It is apparent that none of the four surgical interventions undergone by Mr Woods have been successful in relieving the pain in the left wrist and hand, and that as a consequence of inability to use the left arm, he has sustained significant wasting in his left wrist and forearm. It is axiomatic in this circumstance that the applicant would favour his left upper extremity and use his uninjured dominant right arm for most if not all activities of daily living. It is uncontroversial the symptoms in the right shoulder of which Mr Woods complains manifested themselves in late 2019, it seems after the left wrist fusion surgery, which resulted in the loss of motion in the wrist and functional limitations referred to by Dr Bindra in his report dated 11 October 2019. These symptoms resulted in the investigation and treatment of the right shoulder referred to at [13] above.
At [105]-[110] of Schembri, Acting Deputy President Geoffrey Parker SC said with reference to the facts in that case:
“105. The expression ‘as a result of’ requires more than a common sense approach. 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 test construed and applied in its statutory context to best effect the statutory purpose. The expression “common sense approach” does not provide a useful, much less a universal, norm.
106.   The passage from Murphy v Allity Management Services Pty Limited at [58] shows, with respect, how the epithet ‘common sense test of causation’ is properly applied in the statutory context.
107. Roche DP said that Mrs Murphy only had to establish ‘that the treatment is reasonably necessary ‘as a result of the injury’’. The Deputy President was there dealing with causation for the purpose of s 60 of the Workers Compensation Act 1987 (the 1987 Act). The language of the statute was expressly adopted.
108.   So too in the present matter, the appellant had to establish that the injury of 5 July 2005 resulted in permanent impairment of the right shoulder. A finding that the appellant placed greater reliance on the right shoulder was not required nor was it determinative of the statutory question: Did the injury of July 2005 result in a permanent impairment of the right shoulder?
109.   The appellant’s submission at [58] does not correctly state the test for causation. The onus was on the appellant to show that symptoms in the right shoulder that she wanted referred to an AMS for assessment resulted from the injury of July 2005. That was overwhelmingly a medical question resolved adversely to the appellant when the Arbitrator rejected the opinion evidence of Dr Mendelsohn and preferred the opinion of Dr Powell.
110.   It was not necessary for the Arbitrator to explicitly reject the appellant’s case of over reliance. With respect to the appellant, the Arbitrator did not downplay any aspect of the evidence.”
At [58] in Murphy, Deputy president Bill Roche said:
“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).”
In this case the onus is on the applicant to show that the symptoms in the right shoulder resulted from the injury to the left upper extremity injury on 21 March 2018. It is a question that must be determined with reference to the evidence as a whole, but particularly having regard to the expert medical evidence.
The applicant draws attention to what Deputy President Elizabeth Wood said at [90]-[93] in Ly v Jitt Offset Pty Ltd[38]. At [92] the Deputy President said:
“Wiki establishes that in order to reject a coherent and reasoned opinion expressed by a suitably qualified expert, it should be the subject of a coherent and reasoned rebuttal, unless it can be discounted for other cogent reasons.”
The reference to Wiki is to Wiki v Atlantis Relocations (NSW) Pty Ltd[39].
[38] [2021] NSWPICPD 2.
[39] [2004] NSWCA 174; 60 NSWLR 127.
The applicant submits that Dr Dias has provided a coherent and reasoned opinion as to the causation of his right shoulder condition, whereas Dr Bosanquet has not.
Dr Dias in preparing his report dated 17 November 2020 had access to all of the relevant radiological investigations of the applicant’s upper extremities and reports from the treating medical practitioners, including the:
(a)    MRI scan of the right shoulder dated 20 February 2020 which showed “Burning impingement anatomy with downsloping of the lateral acromion and partial minor thickness tearing in the rotator cuff as described”;
(b)    Ultrasound guided injection in the right shoulder dated 16 January 2022, and
(c)    Ultrasound scan of the right shoulder dated 23 January 2020, the comments on which stated “Prominent subacromial-subdeltoid bursa, which may indicate mild/minimal bursitis.”
Dr Dias records a comprehensive and detailed history of the applicant’s treatment and symptoms under “SUBSEQUENT PROGRESS” in his report, and notes:
“Mr Woods continued to suffer from debilitating left wrist pain, stiffness and discomfort, left thumb pain, stiffness and discomfort, pins and needles and numbness affecting his left hand and right shoulder pain, stiffness and discomfort over the course of the past 32 months since the subject workplace accident.”
He later diagnoses:
“Mr Woods suffers from a consequential right shoulder impingement syndrome with associated chronic subacromial bursitis and a partial thickness rotator cuff tendon tear, secondary to prolonged over compensation for his aforementioned left wrist/left thumb injury. Mr Woods has consequential right shoulder condition first manifested in mid 2019.”

Although Dr Dias records the right shoulder condition as first manifesting in mid 2019 in contrast to Mr Woods’ evidence that this did not develop until towards the end of 2019, I do not regard this discrepancy as significant.
Dr Bosanquet in his initial report dated 27 July 2020 also records a comprehensive history of the applicant’s treatment and current symptoms and had access to the details of the radiological investigations and treatment of the right shoulder referred to in [49] above. In respect of the right shoulder condition, he says:
“Subsequent to this he developed pain in his right shoulder in mid-2019.
Brendan Woods claims the pain had been in his shoulder since the injury intermittently. With loss of use of his left arm he was using the right arm (dominant) more often.”
Dr Bosanquet refers to the applicant seeing Dr Fred Noah, orthopaedic surgeon, and the treatment recommended by him. In respect of the causation of the right shoulder condition
Dr Bosanquet says:
“There is evidence of a pre-existing condition in the right shoulder with a downsloping
acromion causing impingement. This has been exacerbated by his employment. As
the injury was over 2 years ago it is my opinion the aggravation to his right shoulder
has ceased.”
Dr Bosanquet does not change his opinion in respect of the causation of the right shoulder condition in his subsequent reports. In his supplementary report dated 14 August 2020[40]
Dr Bosanquet addresses the issue of the applicant’s fitness to return to work. In the independent medical examination report dated 23 September 2020[41] his opinion remains unchanged from his previous report. He addresses specific questions put to him in respect of capacity for work, notes that the right shoulder has less forward flexion and less abduction than when he last examined the applicant, notes “…the slow unfolding of the underlying pain condition ?CRPS” and advises against further surgery at all costs. He also says that
[40] Reply p 104.
[41] Reply p 107.
Mr Woods will have to be managed through a multi-disciplinary pain management clinic and that “…due to the increasing symptoms in his left arm plus the condition in his right shoulder, it is my opinion that Brendan Woods has no capacity for the ‘suitable employment options’ tabled in the Procare Vocational Assessment.”
In his final independent medical examination report dated 2 February 2021[42], Dr Bosanquet states that his opinion remains unchanged from previous reports.
[42] Reply p 113.
There are three reports from Dr Fred Noah in evidence, dated 1 April 2020, 29 April 2020 and 6 May 2020[43]. In the first report Dr Noah records a history of the applicant having to rely heavily on his right arm and that has brought on his right shoulder pain. Dr Noah noted that the MRI scan showed bony impingement anatomy with a down sloping acromion and partial thickness tear of the cuff. The later two reports address the recommendation for Dr Noah to carry out an “…arthroscopic subacromial decompression +/- rotator cuff repair”, which did not eventuate.
[43] Application pp 193, 194 and 195.

Dr Laurent Wallace of the South West Pain Clinic, whose report dated 14 October 2020 is referred to at [22] above, notes that on consultation with the applicant on 13 October 2020 he presented with pain in the left thenar eminence and wrist, occasionally radiating to the elbow, and right shoulder pain. His “Impression” was expressed as follows:
“1. Left hand chronic post procedural pain after four operations, not fitting the criteria
for CRPS.
2. Right shoulder limitation, likely due to compensation for his left upper limb which
he virtually does not use.”

Dr Bosanquet, while he records the applicant’s claim of using the dominant right arm more due to loss of use of the left arm, does not address the issue as to whether this use of the right arm gave rise to the condition in the right shoulder. Both Dr Dias and Dr Wallace do. Rather, Dr Bosanquet is of the opinion that there is evidence of a pre-existing condition in the right shoulder with a downsloping acromion causing impingement, and that this has been exacerbated by his employment. It is not clear exactly what Dr Bosanquet is referring to here when he refers to “his employment.” It may be to the nature of the employment duties of the applicant, to the fall on 21 March 2021 when Mr Woods injured his left wrist, or to the loss of use of the applicant’s left upper extremity as a result of the injury on 21 March 2018 with the resultant need to rely on the right arm. In any event, there is no issue that the applicant has definite symptoms in the right shoulder. If Dr Bosanquet is correct in his opinion that there has been an exacerbation of a pre-existing condition in the right shoulder, my view is that such exacerbation has been caused by the overuse of the right arm due to the undisputed and significant loss of use of the left arm, and that any such exacerbation has not ceased.

My finding is that the applicant has discharged the onus on him to show that the condition in his right shoulder is consequent upon injury to the left upper extremity on 21 March 2018. There will be an award in favour of the applicant in respect of this condition.
In accordance with the agreement between the parties referred to at [10] above, the applicant is entitled to an award in his favour for compensation for permanent impairment pursuant to s 66 of the 1987 Act in accordance with the assessments of Dr Bosanquet, that is for 29% WPI for the left upper extremity and 5% WPI for the right upper extremity. In accordance with the Combined Values Chart in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition, the total WPI for which the applicant is entitled to be compensated is 33%.
The applicant is also entitled to an award in his favour for medical and treatment expenses pursuant to s 60 of the 1987 Act in respect of the right shoulder condition.

SUMMARY

The applicant suffered a condition in his right upper extremity (shoulder) consequent upon injury to the left upper extremity on 21 March 2018.
The respondent is to pay the applicant $96,170 compensation for permanent impairment pursuant to s 66 of the 1987 Act for 33% WPI as a result of injury to the left upper extremity on 21 March 2018 and condition in the right upper extremity (shoulder) consequent thereon.
The respondent is to pay the applicant’s costs and expenses pursuant to s 60 of the 1987 Act in respect of the right shoulder condition.

[2021] NSWPIC 214

28 June 2021