Xerri v Cordina Chicken Farms Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Xerri v Cordina Chicken Farms Pty Ltd [2022] NSWPIC 32
APPLICANT:	Mary Xerri
RESPONDENT:	Cordina Chicken Farms Pty Ltd
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	25 January 2022
CATCHWORDS:	WORKERS COMPENSATION -Consideration of allegation of injury to the lumbar spine; absence of complaint in treating notes; Held- adequate explanation for absence of complaint; consequential condition due to overuse.
DETERMINATIONS MADE:	1. The applicant has suffered an injury to her lumbar spine by way of an aggravation, exacerbation, acceleration or deterioration of a disease as a result of falling heavily on her left side on 5 March 2018. 2. The applicant has suffered a consequential condition to her right elbow. 3. The matter is remitted to the President to be referred to a Medical Assessor for assessment of the cervical spine, lumbar spine, left upper extremity (left shoulder, left elbow) and the right upper extremity (right shoulder and right elbow). The Application to Resolve a Dispute and Reply to be provided to the Medical Assessor. The date of injury is 5 March 2018

STATEMENT OF REASONS

BACKGROUND

Ms Mary Xerri was employed with Cordina Chickens on a full-time basis. Her role primarily involved sorting chicken pieces, putting chicken pieces into bags, weighing the bags on scales and then placing the bags in a plastic tub.
On 5 March 2018 the applicant was sorting through chicken when her gumboot became caught under the steel fork of a pallet jack. She lost her balance and fell heavily on to her left side landing on the factory floor and the steel fork of the pallet jack.
The applicant says in her statement[1] that she immediately felt pain and discomfort over the left side of her body which included her left shoulder, left elbow, left hip and left knee. She says she also felt back pain and neck pain but the intensity was focused on her left side.
[1] Application page 3
Following the fall the applicant attended upon Nelson Ridge Medical Centre and consulted Dr Yasmin.
The applicant underwent an MRI of the left knee and ultrasound of the left hip after referral from Dr Yasmin.
On 20 March 2018 the applicant returned to work on suitable duties with restricted hours. She was working approximately four hours per day, five days per week and the suitable duties involved packing and labelling.
The applicant says she continued to experience ongoing symptoms of pain and stiffness affecting her left elbow and left shoulder as well as her neck and lower back, however her attention was focused on her left shoulder and elbow.
Over the following weeks the applicant says[2] that because of increasing pain in the left elbow she developed the onset of consequential pain in her right shoulder and right elbow regions. The applicant says she was relying on her right arm to perform her suitable duties at work and to protect her injured left arm. She observed that her right elbow and shoulder would feel very stiff and sore at the end of each shift.
[2] Application page 4
The applicant also observed that her posture was altered and awkward and she was lifting all heavier items with her right arm. With the passage of time she felt that her neck, right shoulder and right elbow deteriorated and she also had ongoing symptoms of lower back pain.
The applicant consulted with Dr Yalizis (orthopaedic surgeon) in about May 2018. Dr Yalizis recommended the applicant wear a removable wrist splint and recommended lifting no more than 250g with her left hand.
On 1 November 2018 the applicant’s hours were upgraded to six hours per day, five days per week and her suitable duties were packing chicken and labelling. The applicant says she was relying on her right arm to perform her duties and she observed that her right shoulder and elbow pain became more severe.
On consultation with Dr Yalizis, the applicant reported her right shoulder and elbow pain in about November 2018 and was referred for an MRI scan of the right shoulder and elbow on 30 November 2018. The findings on examination were that there was a moderate sized full thickness cuff tear involving the supraspinatus in the order of 2cm in the right shoulder. In the right elbow there were features of early arthrosis and tendinopathy of the common extensor tendon origin at the lateral epicondyle.
Dr Yalizis recommended a surgical repair to the right shoulder which the applicant underwent on 1 April 2019. Her arm was in a sling for approximately six weeks.
In December 2018 the applicant was referred to Dr Anil Nair for management of her neck pain following a CT scan of her neck which was performed on 15 October 2018.
In about mid-May 2019 the applicant returned to work performing suitable duties and then says that she started to rely more heavily on her left shoulder to protect her right shoulder (which had been operated on). The applicant says that she experienced difficulties as her left shoulder and left elbow would become stiff after a few hours and then she would start to rely on her right arm again. She observed that her right elbow pain deteriorated.
The applicant says she was also experiencing neck pain and persisting lower back pain however did not vocalise her lower back pain because she was most concerned with the most severe pain to her shoulders, elbows and her neck. Her priority was at that time treating those conditions.
On 14 October 2019 Dr Yalizis recommended surgical repair to the left shoulder which the applicant underwent on 27 November 2019. The applicant experienced pain following the surgery and she observed that she was relying on her right arm once again to perform day to day self-grooming activities such as dressing and showering and was also sleeping on the right hand side. She also observed that her lower back pain continued to deteriorate, which had been present since the index event on 5 March 2018.
The applicant did not return to work following her surgery on 27 November 2019 and remained at home.
Shortly thereafter at a time which was approximately six months after her left shoulder surgery and 12 months after her right shoulder surgery, the applicant says that she felt some relief in her shoulders and it was at that time she appreciated the severity of pain in her lower back which radiated into the buttock area.
The applicant complained to her general practitioner about her lower back pain in or about April 2020.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) did the applicant suffer an injury and/or an aggravation, exacerbation, acceleration or deterioration of a disease in her lumbar spine as a result of her fall on 5 March 2018?
(b) did the applicant suffer a consequential condition in her right elbow?

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.

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 (the Application), and
(b) Reply to the Application to Resolve a Dispute.

Medical Evidence

I will now turn to the medical and other evidence that has been referred to in submissions and filed by the parties.

Dr Dias

Dr Dias has prepared a report at the request of the applicant’s solicitors dated 29 April 2021.[3] Dr Dias took a history of the duties performed by the applicant which were described as being prolonged standing, repetitive bending and twisting of the back and torso and repetitive light manual handling of items weighing up to 10kg.
[3] Application page 14
I observe that in respect of the incident on 5 March 2018, Dr Dias does not take a history of the immediate onset of pain in either of the lower back or the right elbow.
The applicant provided a history of the onset of the right elbow pain due to over-compensation for her left shoulder and elbow injuries over a time period of six months following the subject accident.
In respect of pain in the lower back, Dr Dias understood the applicant complained of pain in her lower back when consulting Dr Yasmin on 9 March 2018. Certainly, at the time of examination, Dr Dias took a history of ongoing back pain.
On examination of the lumbar spine, the applicant was tender to palpation in the midline and in the right and left lumbar paraspinal musculature from the level of L4 to S1. Palpation of the sacroiliac joints was also accompanied by moderate tenderness and muscle guarding particularly on the right side.
The applicant was able to perform full flexion of the lumbar spine to only one third of the normal range and extension of the lumbar spine was also minimal. Lateral flexion was also limited to one quarter of the normal range.
In respect of the right elbow, once again the applicant’s elbow was normal to inspection however she was tender to palpation of the lateral aspect of the right elbow in the region of the lateral epicondyle and common extensor tendon origin although to a lesser degree than her left elbow. Provocative testing for lateral epicondylitis was positive with pain over the lateral aspect of the right elbow on resisted elbow extension resisted right wrist extension.
Dr Dias diagnosed the applicant as having a persistent aggravation of a previously asymptomatic degenerative spondylosis, secondary to acute musculoligamentous strain.
In respect of the right elbow, Dr Dias diagnosed the applicant as having a consequential chronic right-sided lateral epicondylitis (common extensor tendinopathy) secondary to prolonged over-compensation for the left elbow and shoulder.
Dr Dias has prepared a further report dated 29 April 2021.[4]
[4] Application page 35
In that report Dr Dias assesses the applicant’s whole person impairment which was 25%.

Dr Smith

Dr Smith has prepared a report at the request of the respondent’s solicitors dated 21 August 2020.[5] Dr Smith took a history of the applicant falling on 5 March 2018 on to her left side.
[5] Reply page 10
Dr Smith had reviewed all the radiology that the applicant had undergone in respect of both her right elbow and lumbar spine.
Dr Smith opined that the fall on 5 March 2018 would have caused the pathology in the left shoulder and diagnosed her as having a lateral rotator cuff disease, bilateral bursitis and bilateral AC joint arthritis. The applicant also had lumbar degenerative disease.
Dr Smith opined that if there had been any relationship between the applicant’s lower back symptoms and the work incident on 5 March 2018, then the lower back symptoms would have been prominent by the end of 7 March 2018, that is some two days later. He therefore opined there was no likely relationship between the applicant’s lumbar degenerative disease symptoms and the work incident on 5 March 2018.
Dr Smith has prepared a second report dated 8 July 2021.[6] Dr Smith once again summarises the applicant’s history of the incident and also treatment in his report. In respect of the applicant’s lateral epicondylitis condition, Dr Smith thought it was incongruous that one could contemplate right-sided lateral epicondylitis being the result of the fall to the left elbow. He described epicondylitis as being a normal ageing process and is commonly seen in men and women in all walks of life.
[6] Reply page 23
In that examination Dr Smith expressed concern that the applicant was manufacturing physical signs and said there was no organic illness that could produce the pattern of weakness that the applicant currently exhibited.
In a third report dated 30 July 2021,[7] Dr Smith once again describes the applicant as having lumbar degenerative disease and the epicondylitis as being a consequence of the ageing process as opposed to any workplace injury.
[7] Reply page 31

Dr Yalizis

Dr Yalizis is a shoulder and elbow orthopaedic surgeon. The applicant first consulted with him in May 2018. On that first consultation, the applicant complained of injuries to her knee, hip, shoulder and elbow. There appears to be no complaint in respect of the lumbar spine.
In a further consultation dated 12 June 2018,[8] the applicant complained about her elbow and confirmed that she had been wearing a wrist splint. Once again there appears to be no complaint made in respect of the lumbar spine.
[8] Application page 41
In a further consultation on 23 August 2018[9] Dr Yalizis once again saw the applicant and complaints were made in respect of the left shoulder. Contemplation was given to a cortisone injection in the elbow at that stage.
[9] Application page 42
On 29 September 2018 the applicant once again saw Dr Yalizis who had the results of the MRI investigation of the left shoulder. The consultation appears to be predominantly in respect of the left shoulder.
On 10 December 2018 the applicant saw Dr Yalizis[10] after having an MRI of her right shoulder which disclosed a large tear in the supraspinatus tendon. Dr Yalizis also had the MRI results of her right elbow which disclosed a partial thickness tear in the ECRB portion of the tendon in the order of 6 to 7mm in length.
[10] Application page 45
On 14 January 2019 the applicant saw Dr Yalizis[11] where she complained of pain in both shoulders, both elbows and cervical spine. Her pain had been worsening slowly with time especially in the right shoulder. No complaint was made in respect of the lumbar spine.
[11] Application page 47
In a further consultation on 25 February 2019[12] the applicant complained that the cervical spine injection had not helped her pain and that she was having significant right shoulder pain. A discussion was had in respect of arthroscopic repair of the shoulder which the applicant indicated she was keen to proceed with. That surgery took place on 1 April 2019.
[12] Application page 48
In a follow-up consultation following surgery on 8 April 2019[13] the applicant was shown exercises that Dr Yalizis wished her to do in respect of the right shoulder and he explained that he wanted her to remain using the sling for a further period.
[13] Application page 50
At six weeks after the right shoulder surgery, on 6 May 2019, the applicant once again saw Dr Yalizis.[14] The applicant was experiencing ongoing pain from her right shoulder and
[14] Application page 51
Dr Yalizis wished that she continue with her motion exercises and she was happy for her to return to work on light duties.
The applicant consulted with Dr Yalizis on 29 August 2019 and was concerned that she was working in a refrigerated atmosphere which was increasing her pain.
On 1 July 2019 the applicant saw Dr Yalizis again[15] and complained of pain in her right shoulder however she was making steady progress.
[15] Application page 54
On 14 October 2019 the applicant saw Dr Yalizis again complaining of pain in the right shoulder however there had been a definite improvement. There was a discussion had in relation to the proposed surgery to the left shoulder by way of arthroscopic cuff repair and biceps tenotomy, which the applicant underwent on 27 November 2019.
The applicant saw Dr Yalizis again on 9 December 2019 and then on 24 February 2020. No complaint was made in respect of either the right elbow or lumbar spine on those examinations.
On 25 May 2020 the applicant returned to see Dr Yalizis again, that being six months following her left shoulder and 12 months after her right shoulder.[16] Dr Yalizis observed that the applicant was now complaining of right lower back and buttock pain. He did not see any evidence of any nerve irritation however there was tenderness over the sacroiliac joint. Dr Yalizis then referred the applicant off to have an MRI of her pelvis and lumbar spine.
[16] Application page 60

Dr Nair

The applicant was referred to see Dr Nair (spinal surgeon) by her general practitioner
Dr Yasmin. The first consultation occurred on 12 December 2018. At that time the applicant was complaining of pain in the cervical spine. No complaint was made in respect of the lumbar spine to Dr Nair in that initial consultation.
Dr Nair treated the applicant with a corticosteroid injection which provided limited relief.
The applicant continued to see Dr Nair on subsequent occasions throughout 2019 and 2020 and there appears to be no complaint made in respect of the lumbar spine at all in any consultation.
In a report dated 8 June 2021 Dr Nair turns his mind to the applicant’s lumbar condition. The impression he has at that stage is the applicant has an L5/S1 disc collapse with foraminal stenosis. He takes a history that the applicant has experienced symptoms in her lower back that have been present for approximately one year since a workplace injury provoked by lifting.

Dr Thompson

Dr Thompson is an injury management consultant and created a report for the respondent insurer dated 13 May 2019.[17] In that report the applicant’s duties were considered and it was observed the patient claimed a high level of disability in respect of both her shoulders and the neck. No complaint is made in the body of that report as to lumbar pain.
[17] Reply page 39
Dr Thompson prepared a further report also dated 13 May 2019 in which he had expressed reservations about the applicant’s presentation, He commented that in active examination the applicant exhibited grossly restricted range of motion in the neck and shoulders however in his observations of the applicant when she was in conversation, she was able to move her neck in a much less restricted manner. Dr Thompson therefore recommended surveillance to take place.

Dr Cafataris

Dr Cafataris prepared a report dated 27 March 2020 to the respondent insurer. In that report Dr Cafataris discussed the applicant’s complaints which included persistent pain in the cervical spine and left trapezius, the left upper limb and shoulder and the left upper arm, left forearm and left hand. Dr Cafataris thought the applicant was fit for suitable duties for four hours per day, five days per week with some limitations. No complaint was made in respect of the lumbar spine.

Dr Ho

The applicant was referred to Dr Ho who practised at the Western Sydney Pain Centre in February 2021. In his report,[18] Dr Ho outlines the complaints the applicant made in respect of her condition. In particular, reference is made to bilateral shoulder pain and neck pain. Dr Ho appears to be assisting the applicant in managing her medication intake and it is apparent from his reports that no complaint is made in respect of the lumbar spine.
[18] Reply page 61

General Practitioner’s Notes

Dr Yasmin is the treating General Practitioner who normally treats the applicant. The applicant consulted Dr Yasmin on 5 March 2018. At that time the applicant complained of pain in the left shoulder, elbow, hip and knee.[19]
[19] Application page 78
In a consultation on 9 March 2018 the applicant complained of left shoulder pain, left elbow pain, left hip pain, left knee pain and lower back pain with pulling pain on the left leg. This the first complaint of lumbar pain.
In consultations on both 23 April 2018 and 4 April 2018 the applicant complained of left shoulder, hip and knee pain but no mention was made in respect of the lumbar spine.
Complaints in respect of the right elbow appear to commence in around October 2018 and in a consultation on 30 October 2018 the applicant complained of experiencing pain in the right upper limb “as using it more because of persisting pain on the left upper limb”.[20] The applicant then continued to complain to her general practitioner of right-sided upper limb pain on a more regular basis.
[20] Application page 91

Subsequent consultations with her general practitioner show that there is no reported complaint in respect of the lumbar spine for a considerable period after that first complaint and from my observation it appears that the first mention of complaint to the lumbar spine was recorded on 27 April 2020[21] when the applicant complained of buttock pain which had been ongoing and worsening over two months. The applicant had been to the emergency department for Endone when this had occurred and experienced limb weakness and radiation.
[21] Application page 121
The applicant was referred to have a CT scan of her lumbosacral spine as a result of that consultation on 27 April 2020. The CT scan disclosed multi-level degenerative changes, mostly marked at L5/S1 and with severe foraminal stenosis
The applicant further complained to her general practitioner on 4 May 2020 in relation to pain with the diagnosis appearing to be severe foraminal stenosis at L5/S1.
The applicant once again complained to her general practitioner on 3 August 2020 in respect of lower back pain.[22]
[22] Application page 124
Dr Vasanth, general practitioner, wrote a referral to Ms Megan Taylor from “Think Out Loud” on 24 June 2020.[23] In that referral the applicant was seeking treatment for anxiety and depression. Dr Vasanth provides a history that the applicant fell at work two years ago and had been struggling with chronic pain in her left shoulder, back and neck since.
[23] Application page 134
In certificates of capacity prepared by Dr Yasmin there is some limited referral to the lumbar spine. In particular, in the certificate of capacity dated 3 August 2020 there is a history provided of recent severe back pain worsening over the last two to three months.

Other relevant evidence

Roberto Canelos prepared an email to the insurer, the employer and the claims manager on 6 May 2020.[24] In that email Mr Canelos is updating the group about a case conference with the applicant and her nominated treating doctor. In that summary contained in that email, it is reported that the applicant advised that she had experienced a significant increase in lower back pain. The applicant reported that her back pain had increased significantly and she noted more frequent episodes of increased pain.
[24] Reply page 1

Consideration

There are two body parts that are in issue and I will turn my mind to each of them in turn.

Lumbar spine

The claim in respect of the lumbar spine is that the applicant has suffered a frank injury which has aggravated an underlying disease process.
The applicant’s statement supports a claim in respect of injury to the lumbar spine. It is the applicant’s evidence that she felt immediate pain in the lumbar spine. Consistent with a complaint in respect of the lumbar spine is a consultation with the applicant’s general practitioner Dr Yalizis on 9 March 2018 wherein the applicant quite clearly makes a claim in respect of pain to the lumbar spine. I therefore accept and make a finding of fact that the applicant experienced back pain at the time of the fall and shortly thereafter.
It is evident however on the preceding consultation on 5 March 2018 and for a lengthy period after 9 March 2018, that the applicant did not complain about the lumbar spine but quite clearly complained about other body parts. It is the applicant’s evidence that she was more concerned about pain to the left hand side of her body which in the circumstances of her injuries to my mind, is quite understandable. It is the applicant’s evidence that the pain in her left elbow was the most severe and as a natural reaction, her attention was focused on that body part. To my mind this is a natural response.
The applicant’s evidence is quite clear in her statement that it was around April 2020, when she had some relief from her other complaints, that her attention turned directly to her lumbar spine.
The applicant’s case is that this represented an increase in lumbar pain, not a new symptom. That is, the applicant had ongoing lumbar pain since the date of the accident however it had been essentially masked by the other symptomatology she was experiencing.
It was submitted by the applicant that her evidence is consistent with an email which is contained in the Reply[25] dated 6 May 2020. The email contains a history which appears to be reported by the claims officer, that the applicant said that she had had an increase in back pain, that is, there has not been a new symptomatology but just an increase in its severity.
[25] Reply page 1
The applicant then relies on the opinion of Dr Dias who understands the applicant did indeed complain in respect of her lumbar spine on 9 March 2018, who then diagnosed the applicant as having an aggravation of a previously asymptomatic degenerative spondylosis, secondary to acute musculo-ligamentous strain.
It should be observed that there is no evidence that is before me in respect of a previous symptomatic degenerative condition in the applicant’s lumbar spine.
The respondent does not cavil with the fact that three days after the incident there was a report in the general practitioner’s notes in relation to back pain which was indicative that the applicant was indeed suffering back pain at that stage. What the respondent is concerned about is whether the back pain reported at that time, three days after the fall, is consistent with the persistent aggravation of the applicant’s back in circumstances where there is a failure to complain for a significant period of time.
The respondent points out that in respect of the two scans of the lumbar spine, the first scan on 28 April 2020 [26] and the second MRI scan on 11 June 2020 [27] contained no history of a fall in respect of referring information.
[26] Page 152
[27] Page 154- which focused on the Pelvis and sacro-iliac joints
The respondent submitted that there have been innumerable opportunities for the applicant to complain to doctors about her lumbar spine but there has been a complete failure to do so.
The respondent points out that there is a huge hiatus in time between the complaint to the general practitioner and what appears to be the emergence of symptomatology in May 2020. In particular, the applicant consulted Dr Nair, spinal surgeon between December 2018 and March 2020 for some 11 consultations, however there was a complete failure by the applicant to report any symptomatology in the lumbar spine as has been recorded by Dr Nair.
The respondent referred to the authority of Dywidag System Pty Ltd v Melksham (2020) NSWWCCPD 41 where Deputy President Wood said that it is preferable that the Member determine the pathology of the injury. The respondent did concede that the applicant has more likely received a soft tissue injury at the time of the fall which had not resolved. The respondent submitted it is more likely that this is the case rather than the applicant having an aggravation of a pre-existing asymptomatic disease where there has been a complete lack of complaint for a significant period of time. The normal ageing process has then caused the onset of symptomatology, as described by Dr Smith.
In respect of the email which is annexed to the Reply at page 1, the respondent submits that little weight should be given to the recounting of a discussion between a well-meaning case manager and the applicant, it is not a medical record.
In respect of the retained medical opinions, the respondent submits that significant weight should be afforded to the opinion of Dr Smith, who has turned his mind directly to the radiology in this case and has formed the view that the applicant’s condition in her lumbar spine does not arise as a result of an aggravation of an underlying condition, but as part of the normal degenerative process.
The applicant urged that the opinion of Dr Smith should not be relied upon because he simply does not have the correct history in respect of the lumbar spine pain. That is, that he says that the lower back spine symptoms started five months ago, that is in 2020.
Support is given for the applicant’s delay in complaint in respect of the lumbar spine from the opinion of Dr Dias, who accepts that even though there has been a delay in ongoing complaint on an ongoing basis, it is reasonable the applicant has been focusing on her other injuries.
Consistent with the applicant’s submissions, there is a referral from Dr Vasanth, general practitioner in respect of the applicant seeking treatment for anxiety and depression. The history recorded by the general practitioner is that the applicant had been struggling with chronic pain in her left shoulder, back and neck since that fall.

Consideration

It appears to me from the submissions that the primary complaint the respondent has with the applicant’s case is that there has been a delay in complaint from the initial consultation with the general practitioner on 9 March 2018 until approximately April or May 2020 in respect of the lumbar spine.
There is a lack of complaint recorded in the records from Dr Nair, Dr Thompson, Dr Cafataris, Dr Ho and the General Practitioner.
In determining this dispute, some consideration needs to be given to whether it is reasonable that there has been such a delay in complaint. The applicant has provided reasoning for the delay in complaint in her statement, and this has been considered and accepted by Dr Dias in his report.
I understand the concern the respondent has in respect of the failure for any complaint in respect of the lumbar spine to be recorded particularly in the treating notes of Dr Nair, however I am also acutely aware that the applicant was referred to Dr Nair in respect of treatment to the cervical spine. I am also acutely aware of authorities such as Mason v Demasi[28] which provide guidance that caution should be given in respect of treating notes from a medical practitioner. This must be particularly so in relation to the history given in respect of radiological examinations.
[28] [2009] NSWCA 222
There is no doubt to my mind that the applicant has had significant complaint in respect of her left shoulder and elbow which has caused her considerable pain and treatment in respect of it.
I find it reasonable, that the applicant has placed more attention on those other body parts not focusing on the lumbar spine. This is consistent with her statement, and history is contained in the reports of Dr Dias, Dr Nair and the email correspondence. I therefore am not troubled by the apparent delay in complaint recorded in the documents before me.
In respect of the delay in complaint the respondent did not ask me to make findings of credit against the applicant however to make a finding that she has been mistaken as to the symptomatology she has been experiencing in her lower back on an ongoing basis since March 2018.
I am unwilling to make such a finding, the applicant to my mind is someone whose credit should be taken at face value, there has been no submission made that I should not believe her, she is in the best position to be able to describe where she had symptomatology and from what period. I therefore accept the applicant has had ongoing lumbar symptomatology since the fall in 2018.
The conflict of opinion between Dr Dias and Dr Smith in respect of the diagnosis, is a live issue between the parties. The respondent quite candidly accepted that there may have been a soft tissue injury that occurred in the fall but however rejects the idea that there is an ongoing aggravation of an underlying condition.
The difficulty I have with the opinion of Dr Smith, is an obvious one on which submissions were made. Dr Smith does not appear to take into consideration that there has been a complaint made some three days after the incident perceives that there has been a complete hiatus of complaint following the injury to the onset of more acute symptomatology or complaint in May 2020. The medical evidence in respect of the complaint on 9 March 2018 has not been taken into account at all by Dr Smith and to my mind this causes me to have great concern in relation to the reliability of his opinion and I must therefore give it less weight.
To the contrary, Dr Dias has an accurate history of complaint early after the incident and then of some delay in the reporting of complaint thereafter. Dr Dias does not appear to focus upon the radiological evidence however it is clear that all relevant scans have been provided to him and are clearly referred to in his report. I prefer Dr Dias’ opinion which is consistent with the applicant’s statement.
The respondent has requested I make findings in relation to the pathology that the applicant has suffered as a result of the 2018 fall. To my mind this is an easy task to perform, for reasons I have already articulated I prefer the opinion of Dr Dias who has a proper history as to the applicant’s symptomatology following the fall whereas Dr Smith has quite clearly not taken into account relevant factors, those being complaint shortly after the fall and also ongoing symptomatology. I therefore find in accordance with the opinion of Dr Dias that the applicant has experienced an aggravation of a previously asymptomatic degenerative spondylosis, secondary to acute musculoligamentous strain.
I am acutely aware that the applicant does not need to present a perfect case in these claims. There are obvious difficulties that the applicant’s claim brings with it, including the absence of recorded complaint in respect of the lumbar spine for a lengthy period of time.
[29] Nguyen v Cosmopolitan Homes Pty Ltd [2008] NSWCA 246
I am however persuaded to the requisite standard[29] that the applicant has sustained an injury by way of aggravation to an underlying disease as opined by Dr Dias.

Right Elbow

The claim in respect of the right elbow is that of a consequential condition.
The applicant’s submissions relied on the applicant’s statement who provided evidence of overuse and then experiencing symptomatology in her right elbow.
The applicant referred to the histories taken by the applicant’s general practitioner, Dr Yalizis who takes a history of overuse and onset of pain which is recorded in the treating notes.[30] The general practitioner takes a history that the applicant had increased pain in her right upper limb because she had been using it more. Further, on 27 November 2018, there is a specific entry in respect of elbow pain. The doctor then refers the applicant off for an MRI in relation to a work-related injury.[31]
[30] Application 91 (30 October 2018).
[31] Page 93
The applicant relies upon the opinion of Dr Dias who has diagnosed the applicant as having a consequential right-sided lateral epicondylitis secondary to prolonged over-compensation for the left elbow and shoulder.
The applicant submitted that the opinion of Dr Smith should be given no weight as he has not turned his mind to the idea of a consequential condition and appears to have really focused his attention on the concept of a frank injury causing the symptomatology, as opposed to a consequential condition.
The respondent submitted that the applicant’s case must fail as the applicant has not particularised in what way she has overused her right elbow. That is, what activities the applicant performed while favouring the left side, she overused the right side.

Consideration

It is not necessary for the applicant to establish that the right elbow condition is itself an ‘injury’ pursuant to s 4 of the 1987 Act. Deputy President Roche in Moon v Conmah^[32]observed at [45]-[46]:
“It is therefore not necessary for Mr Moon to establish that he suffered an ‘injury’ to his left shoulder within the meaning of that term in section 4 of the 1987 Act. All he has to establish is that the symptoms and restrictions in his left shoulder have resulted from his right shoulder injury. Therefore, to the extent that the Arbitrator and Dr Huntsdale approached the matter on the basis that Mr Moon had to establish that he sustained an ‘injury’ to his left shoulder in the course of his employment with Conmah they asked the wrong question.”
[32] [2009] NSWCCPD 134
Deputy President Snell also reviewed the relevant authorities in Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan. He made the following observations:
“The above do not suggest any need that a finding of a consequential condition necessarily involves the identification of pathology. It is sufficient to find (if the evidence supports it) a condition that results from an employment injury. I accept the respondent’s submission that it is sufficient to find a consequential condition, pathology need not necessarily be identified.”
It appears to me that there is consistent evidence from the applicant in particular in the general practitioner’s notes, that she was favouring the left arm and overusing the right arm. There is also pathology in respect of the right elbow which I accept which supports a finding of ongoing pain and complaint. As a matter of commonsense I accept the applicant has experienced pain in her right elbow as a consequence of her left shoulder condition.
The complaint made by the respondent that the applicant has not articulated the overuse of the elbow to my mind should be given little weight. It is an obvious matter and one of common sense that when the applicant says that she favoured her left arm to the detriment of the right arm it is a matter of day to day living that the applicant has overused her right side. The applicant has also articulated her complaint to her general practitioner who has a history of overuse and also in her statement provides evidence as to overuse in her work duties.
The respondent has really not provided an opinion to challenge that of Dr Dias in respect of the consequential condition. Dr Smith does not provide any assistance in this respect as his opinion is really focused on an analysis of a frank injury from the 2018 fall. I therefore accept the opinion of Dr Dias in respect of the claim of consequential injury to the elbow.
I therefore find that the applicant suffered a consequential condition to her right elbow as pleaded.

ORDERS

I make the following Order:
(a)    the applicant has suffered an injury to her lumbar spine by way of an aggravation, exacerbation, acceleration or deterioration of a disease as a result of falling heavily on her left side on 5 March 2018;
(b)    the applicant has suffered a consequential injury to her right elbow as a result of that injury, and
(c)    the matter is remitted to the President to be referred to a Medical Assessor for assessment of the cervical spine, lumbar spine, left shoulder, left elbow, right shoulder and right elbow. The Application and Reply to be provided to the Medical Assessor. The date of injury is 5 March 2018.

[2022] NSWPIC 32

25 January 2022