Yan v Adecco Industrial Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yan v Adecco Industrial Pty Ltd [2024] NSWPIC 114
APPLICANT:	Cindy Xiu Ying Yan
RESPONDENT:	Adecco Industrial Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	11 March 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; lump sum and weekly compensation claims from injury in 2018; respondent agrees applicant sustained work-related right shoulder and cervical spine injuries; issue in dispute is whether applicant sustained an injury to her left shoulder; Kooragang Cement Ltd v Bates applied; Held – the applicant has sustained an injury to her left shoulder pursuant to section 4(b)(i) in the course of employment with the respondent; employment with the respondent was the main contributing factor to the contraction of the disease in the left shoulder.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant has sustained an injury to her left shoulder pursuant to s 4(b)(i) of the Workers Compensation Act 1987 in the course of employment with the respondent with the deemed date of injury of 12 October 2018. 2. The applicant has established that her employment with the respondent was the main contributing factor to the contraction of the disease in the left shoulder. 3. The applicant has also established that as a result of her injury to her right shoulder she has sustained a consequential condition in her left shoulder. 4. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: a. Date of injury: 12 October 2018 (deemed); b. Body systems: cervical spine, right upper extremity (shoulder) and left upper extremity (shoulder); c. Method of assessment: whole person impairment, and d. Documents referred: Application to Resolve a Dispute, Reply and Application to Admit Late Documents dated 16 November 2023. 5. The matter is to be relisted for preliminary conference before me when the medical assessment certificate has been issued to deal with the remaining weekly compensation claim.

STATEMENT OF REASONS

BACKGROUND

Ms Cindy Xiu Ying Yan, the applicant, was employed by the respondent, Adecco Industrial Pty Ltd, as a picker and packer at an Amazon facility at Moorebank.
Ms Yan seeks lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in relation to injuries to her cervical spine, right upper extremity (shoulder) and left upper extremity (shoulder). She alleges she sustained these injuries in the course of employment with the respondent and she pleads a deemed date of injury of
12 October 2018.
Ms Yan’s counsel clarified in relation to the cervical spine, the injury comes within s 4(b)(ii) of the 1987 Act, the right shoulder is an injury under s 4(b)(i) and the left shoulder is pleaded as a consequential condition and also as an injury under s 4(b)(i) and s 4(b)(ii). Ms Yan also alleges she has developed a secondary psychological condition as a result of pain and loss of function as a result of her work-related injuries.
In addition, Ms Yan seeks weekly compensation pursuant to s 38 of the 1987 Act from
[1] This date was amended in the respondent’s submissions.
7 June 2021[1] ongoing. The pre-injury average weekly earnings figure (PIAWE) is $761 with the 80% rate being agreed at $608.80, as indexed from time to time.
The respondent conceded that Ms Yan sustained a secondary psychological condition and has accepted that she sustained injuries to her cervical spine and right shoulder. The respondent’s counsel confirmed the issues requiring determination by the Personal Injury Commission (Commission) are:
(a)    liability for the claimed left shoulder injury;
(b)   whether the accepted injuries have ceased to produce incapacity for employment? And whether there is incapacity from the left shoulder?
(c)    it was agreed there needs to be referral to a Medical Assessor in relation to the permanent impairment claims for cervical spine and right shoulder injuries but there remains the issue whether such referral should include the left shoulder.
Mr Hickey raised that unless Ms Yan was assessed as being greater than 20% whole person impairment (WPI) she would not have any entitlement to weekly compensation under s 38 of the 1987 Act unless she was found totally incapacitated. Because of concerns about the time to conclude the submissions it was decided to hear the submissions relating the left shoulder and then make the referral for the permanent impairment to be assessed and return later to deal with the weekly compensation submissions.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

The arbitration hearing took place on 23 November 2023 in person. Mr Stephen Hickey, counsel, instructed by Mr Danny Lam, solicitor, appeared on behalf of Ms Yan, who was in attendance with her daughter. Mr Lachlan Robison, counsel, appeared for the respondent instructed by Mr Ron Galea, solicitor, and representatives from the insurer.
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 (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the respondent dated
16 November 2023.

Oral evidence

There was no oral evidence. Counsel made oral submissions which have been sound recorded.

FINDINGS AND REASONS

Ms Yan has provided statements dated 25 May 2021[2] and 15 December 2022.[3] She states she migrated from China to Australia in 1990. She has a degree in Science and Technology from Shanghai University but as her qualifications were not recognised in Australia she obtained employment in alternate jobs. She worked part-time as a general hand at Kumon Learning Centre between 1991 to 1994, and between 1995 to 2004 and from 2005 to 2018 she ran newsagencies with her husband.[4]
[2] ARD p 5.
[3] ARD p 14.
[4] ARD p 68 Dr Dryson’s history.
She also details her limitations in the English language. She commenced work for the respondent working at an Amazon warehouse at Moorebank. She describes her working involving picking and packing goods at [22] to [26] of her first statement.
In particular, Ms Yan says her work in the large box area of the warehouse was consistently heavy and hard. She says there was a lot of lifting and carrying of large and usually heavy boxes, often above shoulder height. She also had to bend over to place those heavy boxes on low shelves. At [27] Ms Yan states within a short period of time of doing that work she started to develop pain in her right shoulder and neck. She adds “As time went on I also began to develop similar symptoms in my left shoulder and my upper back because I was favouring my right shoulder”.
Ms Yan says she did not have pain in her neck, upper back or either shoulder before working at Amazon and the problems developed about two weeks from 1 October 2018 and they gradually worsened and she reported her symptoms on 15 October 2018 and then was placed on light duties.
She says the pain in her shoulders always increases with any use of her arms and she finds it difficult to sleep on either side.
In her second statement she says she returned on suitable duties in January 2019 as part of a return to work plan. She was working four hours per day, three days per week and her hours were gradually increased to seven hours per day, three days per week. She describes at [7] to [13] needing to use her left arm to do the duties because of pain in her right shoulder and neck. She says she began to feel pain in her left shoulder about eight to nine months after she started performing light duties and it became worse. She says on 20 April 2020 she was asked to do a dismantling job and she complained to the respondent that the job caused her pain in her neck and both of her shoulders. She says she felt her left shoulder pain increase during this task and she stopped work on 20 April 2020. This dismantling job is referred to in the medical histories as involving the use of a screwdriver in both hands to remove hooks.
She says she went to her general practitioner, Dr Au-Yong, who referred her to see Dr Doran Sher and she saw him on 9 November 2018 and kept seeing him until 3 March 2021 when he told her that her neck should be treated first before her shoulders. Ms Yan says Dr Au-Yong retired and she came under the care of Dr Magesan at the same practice who referred her to Dr McKechnie, neurosurgeon, who recommended physiotherapy and treatment by an exercise physiologist. Ms Yan outlines this treatment in her statements, and also her psychological symptoms and treatment.

Medical evidence

On 31 October 2018 Ms Yan saw Dr Rosalind Au-Yong for right shoulder and neck pain from heavy lifting at work. The date “2/10/18” is recorded. The doctor’s clinical entry notes Ms Yan was unfit for work. Subsequent clinical entries refer to the return to work on suitable duties. However, the clinical notes from Dr Au-Yong and then Dr Magesan are brief, but they do not appear to refer to the left shoulder. Dr Magesan refers to “shoulders” plural in the entry on
[5] ARD p182.
10 June 2020 and on 14 January 2021 he refers to the complaint of pain in both shoulders.[5]
Dr Doron Sher, orthopaedic surgeon who specialises in shoulder surgery, examined Ms Yan on referral from Dr Au-Yong on 9 November 2018.[6] He has the history that Ms Yan is a right handed packer who in October started to develop pains in her shoulder, which then radiated towards her neck and down her arm and into her hand creating numbness. Dr Sher stated that he felt part of her problem was from her cervical spine and part from her shoulder. He hoped with anti-inflammatory tablets and physiotherapy that her symptoms would settle.
[6] ARD p 95.
On 26 November 2018 Suma Katti, physiotherapist from SportsFizz Physiotherapy, reported to Dr Sher that Ms Yan presented with pain and weakness of her neck and right shoulder.[7] On 16 January 2019, 11 June 2019 and 17 June 2020 Ms Katti reported again about her treatment of Ms Yan’s right shoulder.
[7] ARD p 110.
On 24 June 2019 Dr Keller, occupational physician, provided a medico-legal report to the insurer.[8] The doctor has the history that Ms Yan reported the slow onset of right shoulder pain over 10 days leading up to 12 October 2018 with the pain coming on from repetitive lifting of boxes. The doctor tested the range of motion in the right shoulder which he found to be full and he states there was full range of motion in the left side also.[9] Dr Keller expected improvement of the right shoulder. He did not have a history of a left shoulder injury.
[8] Reply p 87.
[9] Reply p 89.
On 1 August 2019 Dr Sher, without seeing Ms Yan again, reported to the insurer based on the physical examination by Dr Keller. He noted that Dr Keller had not documented evidence of impingement or commented on rotator cuff power. Dr Sher advised it would seem reasonable for Ms Yan to return to full time suitable duties. He added that an ultrasound was not an accurate test to use when assessing the shoulders and if one is looking for a tear an MRI scan is required.[10]
[10] ARD p 96.
On 16 October 2019 Dr Sher examined Ms Yan. He records that she had returned to some work but continues to have pain in her cervical and scapula regions. He states she also has pain in her shoulder, but this was less painful than her neck. Dr Sher referred to the MRI scan showing supraspinatus pathology, signal change in the infraspinatus and swelling of the biceps tendon. Dr Sher gave Ms Yan a subacromial injection of local anaesthetic and corticosteroid. He suspected she would need an arthroscopic intervention in the form of an acromioplasty and biceps tenotomy, but he said most of her pain was coming from the cervical spine.[11]
[11] ARD p 97.
Ms Hall is an exercise physiologist and exercise scientist who has treated Ms Yan. She has provided reports dated 11 May 2020,[12] 15 June 2020,[13] and 9 November 2020.[14]
[12] ARD p 116.
[13] ARD p 118.
[14] ARD p 120.
In her first report Ms Hall records that Dr Magesan referred Ms Yan for an assessment of her neck and right shoulder pain which was attributed to repetitive movement and load due to work. There is no mention of left shoulder symptoms in this report but Ms Hall did measure the movement in both shoulders. She records flexion of the right shoulder was 145 degrees and the left 164 degrees, and extension of the right shoulder was 44 degrees and the left 48 degrees.
In the report dated 15 June 2020 Ms Hall refers to pain in the “shoulders”, plural. The right shoulder had flexion of 165 degrees and the left 177 degrees and extension was 46 degrees bilateral.
On 24 June 2020 Dr Keller provided the insurer with a further injury management consultation report after re-examination of Ms Yan. He records that he observed a full range of motion in the left shoulder.[15] The doctor found inconsistency in her presentation regarding her neck and right shoulder and discussed this with Dr Magesan. Dr Keller did not have a history of a left shoulder injury.
[15] Reply p 95.
On 7 October 2020 Dr Magesan issued a referral to Dr James Yin in which he refers to the work injury of the right shoulder and neck pain and he adds “since June this year both shoulders.”[16]
[16] ARD p 141.
On 9 October 2020 a vocational assessment report by ORS, Nataliya Kitevska, was issued to the insurer.[17] It does not appear to refer to the left shoulder.
[17] Reply p 101.
On 28 October 2020 Dr Brett Courtenay, orthopaedic surgeon, provided a medico-legal report for the insurer.[18] The doctor records the history of Ms Yan having to regularly move boxes including above shoulder level, they were up to 22kg each. She told the doctor at the end of a full week of work she often had pain in her arms but it would settle over the weekend. However, when she finished work on 12 October 2018 she had pain in her shoulders, the right more than the left but the next morning she had a lot of pain in her neck and spasms in her arms that concerned her. So she went to her doctor. She returned to work and was put on restricted duties, although some managers had her doing normal duties. She then took three months off work and was treated by Dr Sher before returning again on light duties. After a holiday she returned to normal duties but she said her pain returned so she stopped work in April 2020.
[18] Reply p 36.
Dr Courtenay diagnosed rotator cuff tendinosis and bursitis in the right shoulder but saw no pathology in the cervical spine. He found the right shoulder was attributable to her work but had doubts about the causal connection of the cervical spine although he thought it could be secondary to the right shoulder injury. He thought there was some exaggeration. He did not examine the left shoulder.
In the report dated 9 November 2020 Ms Hall reported bilateral shoulder pain as well as neck and forearm pain. Ms Hall says upon assessment her shoulder and neck range of motion remained unchanged.
On 14 December 2020 Dr Magesan referred Ms Yan to Professor Con Yiannikas and states “She started getting pain in both shoulders, initially right and radiating to neck after 2 months of employment. She describes tingling + numbness in the neck and shoulders”. Dr Magesan requested a neurological review by the doctor.[19]
[19] ARD p 142.
On 18 January 2021 Professor Yiannikas reported that the nerve conduction studies were performed on both upper limbs and it was a normal study.[20]
[20] ARD p 132.
On 3 March 2021 Dr Sher reviewed Ms Yan and reports that she has ongoing pain principally in the cervical spine but it does radiate down both trapezius and into the lateral posterior upper arm on both sides. He recommended treating the cervical spine issue first before considering treatment of the shoulder.[21] On examination he found it difficult to differentiate the neck from the shoulder pain.
[21] ARD p 98.
On 26 April 2021 Dr Simon McKechnie, neurosurgeon, examined Ms Yan on referral from
[22] ARD p 99.
Dr Magesan.[22] He reports that Ms Yan had a work-related injury in October 2018 following repetitive lifting and packing and he has the history that she developed the onset of neck pain which radiated across both shoulders and intermittently through both arms in association with headache. She also complained of pain in the scapula region. Dr McKechnie referred to the MRI of the right shoulder and referred Ms Yan for an MRI of the cervical spine and thoracic spine to investigate her spinal pain and upper limb radicular symptoms.
The MRI scan of the cervical spine was performed on 5 May 2021 and the clinical history states “neck pain radiating to both shoulders and arms”. The radiologist found minimal disc osteophyte degenerative changes on the mid-cervical region without significant central canal or foraminal canal narrowing.[23]
[23] ARD p 133.
On 9 May 2021 an MRI thoracic spine scan report had a history of neck and thoracic pain referred to both shoulders and both arms. The result was that there was no thoracic compressive disc protrusion seen.[24]
[24] ARD p 134.
On 24 May 2021 Dr McKechnie reviewed Ms Yan noting she was unchanged and still complained of chronic pain particularly in the neck intermittently across the shoulders and arms as well as into the scapula region in the thoracic spine. He refers to the MRI cervical spine scan as showing small C3/4, C4/5 and C5/6 disc protrusions without thecal sac or nerve root impingement and there was mild disc desiccation at T7/8.[25]
[25] ARD p 100.
On 31 May 2021 Dr Evan Dryson, occupational physician, provided a medico-legal report to Ms Yan’s solicitors.[26] The doctor has the history that before Ms Yan worked for the respondent she had no physical problems. He records that when at Amazon she was required to lift and carry large, heavy boxes and in the beginning of October 2018 she began to develop pain in her neck and right shoulder, extending from the anterior left shoulder and upper back. Dr Dryson sets out all of the radiology findings relating to the neck and right shoulder. Under the heading “current symptoms” the doctor states that pain has now moved to above the left shoulder as well and she has painful, restricted movement of the shoulder.
[26] ARD p 66.
The doctor finds that the radiological findings in themselves do not explain the entirety of the impairment exhibited by Ms Yan and he states it is highly likely she has developed secondary chronic pain syndrome.
Dr Dryson sets out the range of movement in both shoulders but in his diagnosis he does not refer to the left shoulder.[27] However, he does refer to there being restricted movement in the left shoulder and he finds that the work was the cause of neck and shoulder conditions and then he explains that the right shoulder was caused initially by stretching or reaching to place items on high shelving “followed by extension to the left shoulder. No radiological investigations have been carried out in relation to the left shoulder, but it is likely that she has a similar injury to that on the right”.[28] He adds in the next paragraph that it is likely the left shoulder was affected in the same way as the right with the stretching and he says that the symptoms in the left shoulder came on later than the right.
[27] ARD p 70.
[28] ARD p 72.
Dr Dryson assessed the WPI suffered by Ms Yan at 8% for the cervical spine, 8% for the right shoulder and 6 % for the left shoulder, which all combine to 20% WPI.

On 22 June 2021 Dr McKechnie reports similar complaints and said she should avoid lifting over 5kg and above shoulder height.[29]
[29] ARD p 101.
On 30 July 2021 Dr Courtenay reported about his re-examination of Ms Yan.[30] He observed her in the examination to display inconsistencies with shoulder movement such as when she put on and took off her cardigan. The doctor expressed that it was impossible to examine
Ms Yan to get a clear idea of her current impairment. He adds in answer to question 8 that he does not believe that the left shoulder was injured in the episodes back in October 2018 and he says it cannot be attributed to being overused. Dr Courtenay says when he examined Ms Yan there seemed to be quite free movement of both arms within the normal range. However, he then states,
“I do acknowledge that there would have been a problem doing work above head but in normal day to day activity, I do not believe that the left shoulder would be put under any excessive loading.”
[30] Reply p 48.
Dr Courtenay goes on to say he found it virtually impossible to assess her shoulder due to significant exaggeration. In answer to question 13 the doctor states he believes there is some issue with the shoulders and neck but that it is not nearly bad as displayed. In answer to question 14 he says he maintains his earlier diagnoses of Ms Yan but then says there was a soft tissue strain that has essentially full resolved.
Dr Courtenay discusses the radiology of the right shoulder and says subacromial bursitis was not demonstrated on the early MRI but found on the ultrasound on 11 June 2020. He argues that this means the pathology is not related to the original injury but more likely due to what she has been doing since. However, in his first report Dr Courtenay diagnosed rotator cuff tendinosis and bursitis in the right shoulder and he found the right shoulder was attributable to her work. Also, in a separate impairment assessment report dated 30 July 2021
Dr Courtenay found 8% WPI for the right shoulder, even though he thought that it was an over estimate. He did not assess the left shoulder because he said it is not injury related as the symptoms came on later.
On 2 August 2021 Dr McKechnie reviewed Ms Yan again noting mild improvement with Naprosyn. Physiotherapy was ceased due to the COVID-19 situation and he noted Ms Yan was not working.[31]
[31] ARD p 102.
On 2 September 2021 Dr McKechnie reported no improvement and Naprosyn was stopped due to gastric side effects. He recommended physiotherapy.[32] Similar reports were issued on 11 October 2021,[33] 18 November 2021,[34] 14 January 2022,[35] 24 January 2022,[36]
[32] ARD p 103.
[33] ARD p 104.
[34] ARD p 105.
[35] ARD p 106.
[36] ARD p 107.
[37] ARD p 108.
[38] ARD p 109.
28 February 2022,[37] and 30 March 2022.[38]
On 23 May 2022 Dr Courtenay provided a report to the insurer relating to his re-examination of Ms Yan.[39] At the outset Dr Courtenay says he saw Ms Yan on 13 October 2020 but he omits to say he also saw her and reported on 30 July 2021. He records her left and right shoulder movements as the same, abduction 90°, adduction 20°, flexion 120°, extension 30°, internal and external rotation both at 70°. The doctor expresses the view that her current situation is not related to her work and is due to non-work mental health issues and a major factor is the failure of her marriage.
[39] Reply p 62.
Dr Bentivoglio, neurosurgeon, provided a report to the insurer dated 22 June 2022.[40] The doctor states in her cervical spine she has mild degenerative disc disease with neuropathic arm pain but no evidence of a radiculopathy and she has mid-thoracic pain secondary to a mild disc bulge at T6/T7. He has a history that Ms Yan injured her left shoulder a week before she stopped work but the doctor says he is not the appropriate person to discuss this. Dr Bentivoglio says he agrees with Dr Dryson that the degenerative disease in her cervical spine was exacerbated by the work injury, but he would have expected this to have resolved within six months and so he concludes the continuing symptoms are due to the underlying degenerative condition. In answer to question 12 the doctor states,
“Her total incapacity is related to the work injury on 12 October 2018 when she has
exacerbated her neck pain and her right shoulder and then subsequently her left
shoulder at a later date. From my point of view, her incapacity for her cervical spine
is attributable to her degenerative disease in her cervical spine, which was
[40] Reply p 71.
[41] Reply p 79.
exacerbated by her work. There are no non-work-related injuries or conditions which have contributed.”[41]
However, in the separate impairment assessment report of the same date Dr Bentivoglio assesses Ms Yan as having 6% WPI after adding 2% for the impact on her activities of daily living and finds,
“I do believe it is the degenerative disease in her cervical spine which is partially
accounting for her current symptoms and I have accounted for 10% of that preexisting
degenerative disease, which still persists today as to the whole person impairment.”
On 23 August 2022 Dr Bentivoglio provided a supplementary report in which he states that her employment has been the main aggravating factor to the underlying degenerative disease and this should cease after six months and the ongoing symptoms are related to gradual deterioration of the degenerative disease.[42] Yet he confirms the 6% WPI finding for the cervical spine for which he only deducted 1/10^th for the pre-existing condition.
[42] Reply p 85.
On 25 July 2022 Dr Magesan issued a Centrelink certificate which refers to Ms Yan suffering from chronic pain involving her cervical spine and both shoulders.[43] Similar certificates were issued thereafter.
[43] ARD p 146.
An MRI scan of the left shoulder was performed at Dr Magesan’s request on
[44] ARD p 135.
21 December 2022.[44] The radiologist’s impression was that there was moderate to marked tendinosis of the posterior supraspinatus and infraspinatus tendons with no evidence of a rotator cuff tendon tear. Also there was mild to moderate subdeltoid bursitis.
On 5 June 2023 Dr Dryson provided another medico-legal report for Ms Yan’s solicitors after re-examining her.[45] He had available to him nerve conduction studies carried out by Professor Yiannikas who found no neurophysiological evidence of a significant cervical radiculopathy or peripheral nerve dysfunction. Dr Dryson also had available the MRI scan of the left shoulder dated 21 December 2022 which found “Moderate-to-marked tendinosis of the posterior supraspinatus and infraspinatus tendons. No evidence of left-sided rotator cuff tendon tear. Mild-to-moderate subdeltoid bursitis”.
[45] ARD p 78.
Dr Dryson refers to Ms Yan telling him that she began to develop pain in the left shoulder about eight to nine months after starting light duties and she thought one contributory was moving plastic hooks from middle shelves using a 30cm screwdriver in both hands to pull the hooks off. The doctor adds to his diagnosis “painful restricted range of movement, left shoulder”. Dr Dryson explains that both shoulders were equally affected by the nature and conditions of her work, which involved lifting heavy boxes, with the right shoulder becoming symptomatic before the left shoulder. He said it is likely that Ms Yan was using her left shoulder more following the onset of her right shoulder symptoms but he says he believes she was developing rotator cuff tendinosis and subacromial bursitis anyway due to the nature and conditions of her work.[46] Dr Dryson disagrees with Dr Courtenay’s opinion and says the radiology in both shoulders is similar and so it is not logical to accept that the right shoulder is work-related and the left shoulder is not.
[46] ARD p 83.
On 7 July 2023 Dr Saboor, psychiatrist, provided a medico-legal report for Ms Yan’s solicitors diagnosing she suffers from a major depressive illness with anxiety features and chronic pain syndrome.[47]
[47] ARD p 87.
On 4 October 2023 Dr Courtenay provided a further report for the respondent after a further re-examination of Ms Yan.[48] The doctor records his difficulties in examining Ms Yan such as at one stage when he asked her questions she stood facing the wall and she also got onto the floor in the yoga child’s pose with both arms forward. The doctor says this was quite inconsistent with how she was when he tried to physically examine her. He estimated her arms were flexed forward about 70°. She complained of pain in the left shoulder but
[48] AALD p 3.
Dr Courtenay said he asked her why but Ms Yan was not able to give a clear answer. The doctor referred to the MRI of the left shoulder and he commented that the left shoulder does not show any rotator cuff tear and only some mild bursitis.
Dr Courtenay opines that the left shoulder was not investigated until some years after her original injury and at a time when she was doing very little with either shoulder so he reasoned it was not a result of over compensation. He disagrees with Dr Dryson that it is inevitable that the left shoulder was work-related. He says there is only some bursitis with no tear or signs of an injury. He refers to his examination in 2021 and 2022 and he said the range of motion was virtually identical in each examination and also by Dr Dryson and the signs of exaggeration and unreliability of Ms Yan’s symptoms.
However, he diagnoses partial rotator cuff tear with some bursitis of the “left shoulder” together with some secondary inflammation of some pre-existing cervical spondylosis. One queries if he meant to refer to the right shoulder. In answer to question 20 he repeats that he does not believe there is any evidence to suggest the left shoulder is work related.
He assessed permanent impairment in the cervical spine of 5%, with 2% for activities of daily living, 8% for each of the left and right upper extremities.
On 18 October 2023 Dr Courtenay provided a supplementary report in which he revises his assessment to take into account her inconsistent presentation and finds 4% WPI for the right shoulder. He finds no impairment of the left shoulder because he says it was not a work-related injury. He assigned no impairment to the cervical spine because there was no radiculopathy or asymmetry and he expected she would have had minimal loss of function by then. He expresses the view that her presentation is affected by psychological symptoms.
Dr Bentivoglio provided a further report dated 23 October 2023.[49] He found her to be depressed as she wept constantly during the consultation. He says she needs a new MRI scan of her cervical spine and he states she needed physiotherapy but this has not occurred. He found she had evidence of asymptomatic pre-existing degenerative disease which was exacerbated by the work injury. He adhered to his prior opinion that he would have expected the aggravation to have settled after six months. He assessed the impairment in her cervical spine of 6%. The doctor refused to comment on Dr Dryson’s opinion because Ms Yan refused to help with the examination.
[49] AALD p 20.

Ms Yan’s submissions

Mr Hickey submitted that Ms Yan relies on the nature and conditions of her work which culminated on injury on 12 October 2018, as a deemed date of injury. He submitted that she has an underlying pathological condition or disease in the left shoulder. He referred to her statement where she refers to deterioration of her left shoulder as a consequence of overusing it in order to protect her injured right shoulder.
It was submitted that the injuries to the cervical spine and right shoulder have been accepted by the insurer and the dispute in relation to them relates as to whether there is incapacity springing from those injuries from 4 June 2021, which is when 130 weeks of weekly compensation was paid up to. Mr Hickey submitted that Ms Yan has not returned to work since that date, so for s 38 payments to be awarded she has to show she has no capacity, unless she were to be assessed as greater than 20% WPI by the Medical Assessor.
It was submitted that Ms Yan in her statements sets out the extent of her lifting of boxes above her shoulder height. She commenced work for the respondent in August 2018 and so she had only been working for the respondent a few months, but the work was intense. Her pre-injury history is that she came from China where she had become qualified.
In relation to the left shoulder the medical evidence, Mr Hickey submitted that the reports of Ms Hall show the progression of symptoms because the May 2020 report does not refer to the left shoulder but in the report of 15 June 2020 Ms Hall refers to pain in the shoulders plural, and in the November 2020 report she refers to the left arm remaining painful since the functional testing in June.
Mr Hickey submits the left shoulder is consequential on the neck and right shoulder injury and she has overused or substituted using her left shoulder thereby sustaining injury to it. He draws attention to the MRI scan which shows pathology in the left shoulder. He also relies on Dr Dryson’s opinion who has attributed the left shoulder condition to the nature of the work performed for the respondent. Therefore, Mr Hickey submits the injury to the left shoulder can be viewed as both a consequential condition and an injury arising out of the work, but with delayed symptoms.
Mr Hickey submits the account given by Ms Yan in her statement and to Dr Dryson of having to use a screwdriver with both hands to dismantle and take out hooks is an example of her having to use her left arm to do that work due to the injury to the right shoulder.
Mr Hickey refers to Dr Dryson’s second report in which he says the scans show rotator cuff tendinosis and subacromial bursitis in both shoulders, which the doctor opines is due to the nature and conditions of her employment, particularly work above shoulder height. Mr Hickey says work would have been up to October 2018 when the above shoulder height work was being undertaken. He submits this caused injury to the left shoulder and it was also affected by the overuse of the left shoulder due to the right shoulder injury.
It was also submitted that Dr Dryson found the pathology in the left shoulder would have developed anyway, notwithstanding there were no initial symptoms because of the nature of her work. Mr Hickey submits Dr Dryson has considered the history fairly well and his opinion is consistent with the complaints recorded by Ms Hall.
Mr Hickey said Dr Dryson did consider Dr Courtney’s reports of 2020 and 2021 that the right shoulder was injured when lifting above the horizontal and he found some consequential cervical spine symptoms. Mr Hickey submitted that Dr Dryson explains why he disagrees with Dr Courtenay’s opinion about the left shoulder not being injured at work. He refers to
Dr Dryson’s opinion that the MRI scan of the left shoulder shows similar pathology to that of the right shoulder and it is not logical to find the right shoulder is a work-related injury but the left shoulder is not.
He submits the consequential injury is supported by Kooragang Cement Ltd v Bates,[50] and State Government Insurance Commission v Oakley.[51] He submits if one looks at the first injury and then the second injury is compensable as it would not have been so significant but for the first injury. Employment has to be the main contributing factor to the injury or aggravation of the injury.
[50] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796, Kooragang.
[51] (1990) 10 MVR 570, Oakley.
Mr Hickey says there is opposition between the applicant’s medical case and that of the respondent’s Dr Courtenay and Dr Bentivoglio, and Ms Yan in her statements says she did not have any of these problems before she started this work.

Respondent’s submissions

The respondent submitted that in this case there are so many competing theories that the Commission needs to be satisfied there is an injury to the left shoulder and apply the correct legal test to the type of injury, if it is found she has sustained a work-related left shoulder injury.
Mr Robison relied on Ms Yan’s statement where she says her work with the respondent was casual and it varied and the duration of her total employment with the respondent was short. And that she was placed on light duties within a short space of time when the right shoulder problems became apparent, so he submits this is not a case where she had to work on performing heavy work.
He submitted that the overuse theory is not very persuasive. Mr Robison submitted that
Ms Yan has given evidence in her statements that after she reported her injury on or about 15 October 2018 the work practices were changed and the conveyor belt was used more to move boxes. So the work was not as heavy compared to before she injured her right shoulder. He also referred to her second statement where in Ms Yan referred to performing light duties for four hours per day three days per week.
However, Ms Yan in this second statement goes on to describe the work with items to be stored in their library bins as light to start with but then she was put on to sort out larger bins and she had to use her left arm to do this due to the severe pain she had in her right shoulder and neck if she tried to use her right arm to sort these items. She said she had to work quickly as they had a quota.
The respondent submitted that Dr Dryson in his opinion does not have much emphasis on the left shoulder early on. In the report dated 31 May 2021 the doctor says pain has now moved to above the left shoulder as well. Mr Robison submits that pain being transmitted is not necessarily evidence of a consequential injury. However, I note in the same passage the doctor does take a history that Ms Yan continues to have painful restricted movement in the left shoulder.[52]
[52] ARD p 68.
Mr Robison submits that Dr Dryson does not include in his diagnoses the left shoulder. He submits no diagnosis means he has attributed the complaints as referred pain rather than pathology in the left shoulder. Mr Robison also submits that the doctor’s answer to question 5 is muddled as he talks about the nature of her work, suggesting direct causation; but that
Dr Dryson has not actually set out how the work would have affected shoulder rather than neck. I do not accept this submission because what the doctor states in that paragraph is that Ms Yan had no problems in her neck and shoulders before her employment and that the work was heavy and involves significant stretching and reaching, lifting and carrying and he says this is the cause of neck and shoulder conditions. So it is clear he is including the left shoulder in this explanation.
Mr Robison is critical of Dr Dryson because in the second dot point after the above answer, there is element of speculation because Mr Robison says the doctor says, “it is likely that she has a similar injury to that on the right”. While it is true that at this stage there had been no radiology undertaken of the left shoulder, the doctor had found restriction in the left and right shoulders’ range of motion. He has explained that the right shoulder injury was initially caused by stretching or reaching to place items on high shelving, followed by extension to the left shoulder. I find the doctor is making a clinical judgment, based upon his examination of both shoulders and having considered the nature of the tasks performed by Ms Yan, and this has led to him to opine that the pathology in the left shoulder would more likely than not be the same as the right shoulder. The doctor was ultimately correct that there was pathology detected on MRI scanning of the left shoulder.
Counsel referred to Dr Dryson’s report dated 5 June 2023 and submits that the doctor still, under the heading of history, talks about the extension of pain to the left shoulder but he still does not give diagnosis about the left shoulder. However, later in this report Dr Dryson does include in his diagnoses “painful restricted range of movement, left shoulder”.

Mr Robison submitted that when Dr Dryson takes a history about left shoulder pain he is just reflecting the history given to him by worker about moving plastic hooks. Mr Robison argues if this is a factual circumstance leading to injury, it would be separate injury and no claim has been made about use of the at screwdriver. However, when Ms Yan gives evidence about this in her statement at [11] it was an example of another task she was given as part of her light duties to perform over several days, she explains for four hours per day over three days.[53] She says it caused an increase in the pain in her neck and shoulders. Furthermore, Dr Dryson when dealing with the left shoulder under the heading “current complaints” does not confine the left shoulder injury to removing the hooks, he records that it was one particular task that Ms Yan thought was contributory but he also records that she said she began to develop the left shoulder pain eight or nine months after starting the light duties.
[53] ARD p 15.
Mr Robison was also critical of the opinion of Dr Dryson, submitting on page 6 of his report dated 5 June 2023 it was unclear what the doctor was saying in question 6 about causation. However, I find Dr Dryson does respond to the questions asked of him in a clear manner. In the following paragraph he explains that Ms Yan because of the nature of the work was developing the pathology in her left shoulder, albeit that the symptoms did not become manifest until after the right shoulder, but also, that having injured her right shoulder and neck she used her left shoulder more. The doctor states,
“…I believe it (the employment) has caused rotator cuff tendinosis and subacromial bursitis in both shoulders, including the left shoulder noting that the left shoulder symptoms developed after the right shoulder symptoms.
It is certainly likely that Ms Yan was using her left shoulder more, following onset of the right shoulder symptoms. However, I believe that the rotator cuff tendinosis and subacromial bursitis were developing anyway, due to the nature and conditions of work.”
Mr Robison submitted that Ms Hall, the exercise physiologist, had found in her report dated 11 May 2020 that the right shoulder symptoms were described as slight and he argues this is more reason for finding there would be no overuse affecting Ms Yan’s left shoulder. However, when recording the examination findings of the shoulders Ms Hall did refer to slight shoulder restriction but Ms Hall also found that “empty can produced R sided muscle soreness…generally shoulder girdle tight”. This type of test, the empty can, is to test for issues with the supraspinatus tendon. Dr Sher had already noted in 2019 that the MRI scan of the right shoulder showed supraspinatus pathology with signal change in the infraspinatus and swelling of the biceps tendon.
It was also submitted that because Ms Hall in her report dated 15 June 2020 found improvement in the range of movement, therefore you would not expect over use problem with the left shoulder. I find just because there was some improvement in the right shoulder, clearly there was pathology evidence in the shoulder and it is a more likely scenario than not that Ms Yan would have still been using her left shoulder more than her right shoulder.
Mr Robison referred to Dr Courtenay’s report dated 28 October 2020 under the heading “current symptoms” where he refers to pain in the neck and shoulder, and submits that although the doctor does not state which shoulder from the context it is more likely he is talking about the right shoulder. This seems to be the case as I note he says in the paragraph that Ms Yan says she is unable to even hold a cup in that hand and tends to use her left hand most of the time. Mr Robison argued the overuse theory was also diminished because Dr Courtenay in the examination section of this report, the doctor found that the supraspinatus did have some impingement but was intact.
It was submitted that Dr Courtenay regarded there to be significant exaggeration of Ms Yan’s symptoms. He also found that the right shoulder and neck had probably nearly fully resolved, and so, Mr Robison argues that rules out a finding of a consequential left shoulder condition having occurred. It was also submitted that Dr Courtenay answers question about nature of work in the negative. Furthermore, Mr Robison relies on Dr Courtenay’s finding that there is no ongoing organic basis for her alleged symptoms.
It was also argued that Dr Courtenay’s view that any future treatment would not be beneficial is consistent with a minimal injury to the right shoulder and neck, and this is inconsistent with consequential injury to left shoulder. I will deal further with Dr Courtenay’s opinion later in these reasons.
Mr Robison submitted that it is acceptable for a Member to take into account a worker’s demeanour in the courtroom and he stated she acted strangely and it was like how she presented to the doctors. I advised the parties that I saw Ms Yan standing in a corner facing the wall and then she left the room and I was informed this was to attend the first aid room. I did not talk to Ms Yan directly. In these circumstances, I find I cannot draw any inferences from Ms Yan’s presence in the hearing room as to whether or not she sustained any injury to her left shoulder. The respondent has conceded she suffers from a secondary psychological condition as a result of her neck and right shoulder injuries.
In relation to Dr Keller’s report, Mr Robison submitted that he comments early on
24 June 2019 of his expectation of Ms Yan’s recovery in short term, so counsel argues if left shoulder became symptomatic at this time it should be found it was not connected to work as she was performing light duties and the doctor expected recovery of the right shoulder.
Finally, Mr Robison adopted the findings made by Dr Courtenay in his most recent reports of 4 and 18 October 2023. He submits this is the most recent evidence and Dr Courtenay makes the point that while Ms Yan says she has further flares ups of problems including in her left shoulder, she has not been working or doing anything to aggravate her left shoulder. Mr Robison submits that Dr Courtenay comments about the MRI scan of the left shoulder as showing in the right shoulder there is no rotator cuff tear, only some mild bursitis. However, the MRI scan report did include a finding of “moderate to marked tendinosis at the posterior supraspinatus and infraspinatus tendons” and the bursitis was “mild to moderate”.
Noting that Dr Courtenay stood by his original diagnosis that there was no work-related left shoulder injury, Mr Robison sought an award for the respondent for the alleged injury to the left shoulder.

Ms Yan’s submissions in reply

Mr Hickey referred to Dr Bentivoglio’s report dated 22 June 2022 in which the doctor says the injury exacerbated Ms Yan’s neck pain and right shoulder, and at a later date her left shoulder. Mr Hickey submits this is consistent with the overuse theory. Mr Hickey also relied on Dr Bentivoglio’s statement that Ms Yan had not received the physiotherapy to cervical spine and that the shoulder issue is a matter for an orthopaedic surgeon to consider.
Mr Hickey submitted that the MRI scan of left shoulder dated 21 December 2022 did bear out what Dr Dryson suspected and supports his earlier conclusion that the left shoulder would have been injured along with the right, given the same duties would have affected both shoulders.

Determination

In addition to the findings I have made when summarising the respondent’s submissions above, I consider it very relevant and persuasive that Dr Sher, a shoulder specialist who has been treating Ms Yan, treated her in 2019 with injections of local anaesthetic and corticosteroid in her right shoulder and he suspected she might require arthroscope intervention. I find this evidence undercuts the respondent’s argument that Ms Yan’s injury to her shoulder was slight or minor and could not have resulted in her overusing the left shoulder because of the pain and restriction of movement she felt in the right shoulder. Furthermore, I do not accept Dr Keller’s opinion that her recovery would occur in the short term. I find it did not and Dr Sher’s reports support this conclusion.
I acknowledge that Ms Yan’s presentation has become increasingly clouded by her psychological condition, however the MRI scan of her right shoulder does support that she would have experienced pain and restriction of movement in that shoulder.
I prefer the opinion of Dr Sher to Dr Keller and Dr Courtenay because he was treating
Ms Yan from an early time and he is a shoulder specialist. Dr Sher fairly acknowledged he found it difficult to differentiate between the cervical spine and shoulder pain and that is why he believed the neck should be treated first. However, he did not find that the neck and right shoulder had recovered.
Dr Courtenay did acknowledge that there would have been a problem for Ms Yan doing work above her head and then he states, “but in normal day to day activity, I do not believe that the left shoulder would be put under excessive loading”. I find he does not adequately consider the effect of Ms Yan having performed the overhead work up to October 2018 and the effect it would have had on her left shoulder. I consider Dr Dryson make a very cogent and logical argument that the same heavy, overhead work she had been doing was more likely than not to be also injuring her left shoulder, even though the symptoms did not manifest themselves until after the right shoulder became symptomatic. I find his conclusion in this regard to be compelling, particularly in light of the fact that when she finally had an MRI scan of the left shoulder pathology was found.
Once Ms Yan was symptomatic in her right shoulder and neck, it is not surprising that she used her left shoulder more and I find the added impost of this did contribute to her symptoms in the left shoulder emerging. Therefore, I accept that injury has been established, both as s 4(b)(i) and consequential type injury. Clearly in some cases the cause of an injury can be multifactorial. The legal test to be considered with a s 4(b)(i) injury is whether the employment was the main contributing factor to the contraction of the disease. I find that this satisfied because of the type of work Ms Yan performed before mid-October 2018 when she was put on lighter work. Her evidence about the heaviness of the work leading up to October 2018 has not been challenged by the respondent by other factual evidence. I find the work did involve consistently hard and heavy work with a lot of lifting and carrying of large heavy boxes, often above shoulder height. I accept Ms Yan’s evidence in this regard. I also accept her evidence given to Dr Courtenay that even when she was on light duties some managers had her doing normal duties. Again the respondent has not put on any factual evidence to challenge this assertion.
The legal test to determine a consequential type injury is that discussed in Kooragang where Kirby P (as he was then) found sometimes an event can set in train a series of events. I find this happened in Ms Yan’s case. The heavy work affected both shoulders and her neck, but the left shoulder was later to develop obvious symptoms and this event and injury to the right shoulder set in train the condition for the left shoulder injury to emerge with the added impost of use when the right shoulder was injured.
I prefer the opinion of Dr Dryson to that of Dr Courtenay because I find that Dr Dryson has more completely and thoroughly considered this causal chain. Clearly Dr Courtenay experienced difficulties in his examination of Ms Yan, as he acknowledges due to her presentation. Dr Dryson acknowledged the psychological factors colouring her presentation, but nonetheless was able to come to a conclusion based upon all of the evidence.
It follows that I find the applicant has established that she has an injury to her left shoulder pursuant to s 4(b)(i) of the 1987 Act and a consequential condition. I have made orders for the lump sum claim to be remitted to the President for referral to a Medical Assessor.

[2024] NSWPIC 114

11 March 2024