Yu v Ensign Services Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yu v Ensign Services Pty Ltd [2024] NSWPIC 172
APPLICANT:	San San Yu
RESPONDENT:	Ensign Services Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	9 April 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits; respondent alleges effects of accepted right shoulder injury have passed, and disputes alleged consequential conditions to the right wrist and hand, cervical spine and a secondary psychological condition; respondent alleges applicant instead demonstrates abnormal illness behaviour; Held – the respondent has the onus of demonstrating the effects of an accepted injury have ceased; Commonwealth v Muratore and University of New South Wales v Brooks referred to; the balance of the medical evidence supports a finding the applicant has suffered post-surgical frozen shoulder and that the effects of her injury are ongoing; the applicant has suffered consequential conditions to her right hand and wrist as a result of her injury; award for the respondent on the claim for consequential condition to the cervical spine; award for the respondent on the claim for secondary psychological condition.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered an injury to her right shoulder in the course of her employment with the respondent on 2 April 2022. 2. As a result of her injury, the applicant suffered consequential conditions to her right wrist and hand. 3. Award for the respondent on the claims for consequential condition to the neck and secondary psychological condition. 4. At the date of injury, the applicant’s pre-injury average weekly earnings were $1,430 per week. 5. As a result of her injury and consequential conditions, the applicant was and remains totally incapacitated for employment from 25 July 2023 to date and continuing. 6. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 at the rate of $1,144 per week from 25 July 2023 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

On 2 April 2022, Ms San San Yu (the applicant) was carrying out her duties in the course of her employment with the respondent, Ensign Services Pty Ltd as a laundry worker when she suffered an accepted injury to her right shoulder.
As a result of this injury, the applicant also alleges she suffered consequential conditions to her neck, right wrist and hand, together with a secondary psychological condition. She claims weekly compensation from 25 July 2023 to date and continuing pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) at an agreed rate of $1,144 per week, being 80% of her pre-injury average weekly earnings (PIAWE).
The respondent denies liability, alleges the effects of any right shoulder injury have passed and disputes whether the applicant suffered consequential conditions and secondary psychological injury as alleged. The respondent accepted at the hearing that if the applicant was found to have an ongoing right shoulder injury then any argument with respect to incapacity for employment would fall away.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    whether the effects of the accepted right shoulder injury are ongoing;
(b)    whether the applicant suffered consequential conditions to her right wrist and hand as a result of the right shoulder injury;
(c)    whether the applicant suffered a secondary psychological injury as a result of her physical injury, and
(d)    incapacity for employment.

PROCEDURE BEFORE THE PERSONAL INJURY 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 parties attended a hearing before me on 29 February 2024. At the hearing, the applicant was represented by Mr Goodridge of counsel instructed by Mr Young. The respondent was represented by Mr Gaitanis of counsel instructed by Ms Horne.

EVIDENCE

Written evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attachments;
(b)    Reply and attachments, and
(c)    respondent’s Application to Admit Late Documents (AALD) and attached documents dated 26 February 2024.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Whether the effects of the right shoulder injury are ongoing

Where, as in this matter, a party alleges an accepted injury has resolved or its effects have ceased, the onus of proof in relation to that question resides with the party alleging the injury has resolved or its effects ceased: Commonwealth v Muratore (1978) 141 CLR 296 and University of New South Wales v Brooks [2014] NSWWCCPD 68.
In this matter, the respondent relies on the opinion of A/Prof Miniter, Independent Medical Examiner (IME). A/Prof Miniter was of the view the applicant did not suffer from the ongoing effects of injury, but rather demonstrated abnormal illness behaviour. That opinion contrasts with those expressed by the applicant’s IME Dr New, her treating surgeon Dr Kinzel, who carried out a right shoulder full thickness subscapularis together with a labral tear repair on 24 May 2022. That surgery was paid for by the respondent.
As noted, there is no question the applicant suffered a right shoulder injury in a fall at work on 2 April 2022. A/Prof Miniter was critical of the speed with which surgical repair was undertaken, however, regardless of that criticism, the respondent accepted liability not only for the injury but plainly was of the view the surgery was reasonably necessary as it paid for it.
The principal point of conflict in this matter is whether the effects of the right shoulder injury are ongoing after the surgery.
For his part, A/Prof Miniter accepts the applicant has made very poor progress after the operation, a matter which he concedes in his first report. He noted the applicant made some attempt to return to work in November 2022 without success and had been told that she has frozen shoulder syndrome. A/Prof Miniter disputes that diagnosis and instead indicated an absence of periscapular wasting at the right shoulder together with the applicant’s refusal to move that joint in any direction suggests abnormal illness behaviour on her part rather than any frozen shoulder condition.
As Mr Goodridge pointed out, however, the treating surgeon Dr Kinzel is of the view the applicant developed a frozen shoulder post-operatively, which continues to cause her difficulties. On no fewer than three occasions, the applicant’s treating surgeon provides reports indicating and acknowledging the development of frozen shoulder after the surgery. Indeed, as late as 12 December 2022, Dr Kinzel provided a question-and-answer report to the respondent’s insurer in which she noted the applicant developed a frozen shoulder “which we are still battling with”. In the same report, Dr Kinzel noted the following:
“A frozen shoulder has an excellent prognosis to subside. Unfortunately, this differs individually. A frozen shoulder can occur until two years post-initial injury. I am unable to predict how long San will take to make a full recovery but I anticipate a full recovery in due course.”
Of interest, that report to the respondent’s insurer also noted the applicant suffered from swelling of her fingers, which Dr Kinzel ascribed “most certainly due to the disuse of her arm. If an extremity is not being used appropriately, venous pooling does occur and can cause swelling.”
In the same report, Dr Kinzel was asked whether the pain in the applicant’s neck which she complained of was a result of her shoulder injury and replied as follows:
“I am aware that San underwent an MRI scan which was requested by her GP. I do not have the results of this MRI scan. Without the MRI scan I am unable to comment on the underlying pathology and whether this is related to her shoulder injury.”
The applicant’s treating general practitioner, Dr Roshandel also provided handwritten responses to questions asked of them by the respondent’s insurer in a report dated 22 November 2022. In that report, the doctor noted the right shoulder injury together with a right soft tissue hand injury, depression, and moderate tendinitis of the infraspinatus tendon. Dr Roshandel noted that since her original right shoulder injury the applicant has also suffered left shoulder pain secondary to overuse as a result of right shoulder problems. It should be noted that there is no claim with respect to the left shoulder in these proceedings.
Dr Roshandel noted that as a result of the applicant’s original injury and complications arising from the surgery for it, the applicant cannot use her right elbow much and that the applicant’s mood was low due to having a severe injury for “a long time”. Dr Roshandel said the applicant required injections for her right elbow and left shoulder and ought to see a psychologist for her mood and depression.
In that report, which both parties took the Commission to, Dr Roshandel described the applicant as having a prognosis for recovery between three to six months. However, it was noted that the time frame for a full recovery was “three to six months if has all the treatments in time”. It is trite to say that owing to the denial of liability, the applicant has not had further treatment to her right shoulder, right hand nor had any psychological treatment. As such, in my view little weight can be placed on Dr Roshandel’s prognosis for recovery.
The opinions of Dr Kinzel and Dr Roshandel are also consistent with those of Dr New, IME for the applicant. After taking a consistent history, Dr New proceeded to examine the applicant on 25 July 2023. As a result of that examination, Dr New found marked restrictions in the right shoulder range of movement. Additionally, Dr New found a normal range of motion of the right elbow inflection, extension, pronation and supination. There were, however, problems with the applicant’s right wrist and hand by way of restriction of movement and pain. Dr New noted the hand examination was difficult due to translation and perceived pain. He noted the applicant could perform opposition with her thumb and index finger, but not with her other fingers and that she suffered from dysesthesia and pain in digits two through five together with complaints of swelling despite the hand being normal in appearance when compared to her left hand. Dr New noted there was no suggestion of overreaction or exaggeration on the part of the applicant.
Dr New opined that as a result of the applicant’s injury, she continues to suffer from ongoing pain with her right shoulder together with issues with her right wrist and hand.
I note Dr New did not examine the applicant’s neck, nor does it appear he was requested to.
In a second report dated 7 August 2023, Dr New noted that despite A/Prof Miniter’s criticism of the rapidity with which the applicant underwent surgery, that it in fact took place approximately eight weeks following the index injury at a time when the applicant’s presentation included hand disability. Dr New and A/P Miniter each agreed that the applicant’s progress had been poor post-surgery, however, Dr New was of the view that the applicant’s recovery had been complicated by frozen shoulder syndrome as well as tendinopathy in the rotator cuff and biceps tendon.
Dr New did raise the prospect of a chronic regional pain syndrome, however, there is no suggestion that such injury or such a condition has been suffered, and it is not the basis of any claim on the part of the applicant.
On balance, I prefer the views of treating surgeon Dr Kinzel, general practitioner Dr Roshandel and the applicant’s IME Dr New to those of A/Prof Miniter. A/Prof Miniter’s view stands alone as the only practitioner who does not make a diagnosis of post-surgical frozen shoulder.
I am particularly persuaded by the views of Dr Kinzel, noting that as a treating surgeon they are entitled to be given considerable weight unless it can be shown they were based upon either an inaccurate history or an inadequate examination on its face. No such criticism has been levelled at Dr Kinzel in this matter, and that is quite appropriate. Dr Kinzel has the benefit of examining the applicant over a lengthy period of time, and of performing surgery on her shoulder. Dr Kinzel readily accepts the applicant has had a poor outcome from the surgery, and also notes that a frozen shoulder may persist for up to two years, however, the results vary on individual bases.
Dr Kinzel’s view, as noted, is supported by that of Dr New. On balance, I am not persuaded by A/Prof Miniter’s opinion that the applicant demonstrates an abnormal illness behaviour. Rather, I find on the balance of probabilities having taken a common-sense evaluation of the causal chain that the applicant has suffered and continues to suffer from the effects of a frozen shoulder post-surgery, and therefore that the effects of her right shoulder injury are ongoing.

Consequential condition to the applicant’s wrist/hand

All of the doctors, both treating and medicolegal, provide comment on restrictions in the applicant’s right wrist and hand. Even A/Prof Miniter acknowledges those restrictions, however, he attributes it to abnormal illness behaviour. The other practitioners in the matter note the applicant’s right hand and wrist symptoms are very likely caused by a lack of use, and I accept those opinions, noting I have already rejected for the above reasons
A/Prof Miniter’s diagnosis of abnormal illness behaviour.
For these reasons, I find the applicant has suffered a consequential condition as a result of the ongoing effects of her right shoulder injury. It is not necessary for the applicant to show pathological change in a body system said to be the subject of a consequential condition as is required in establishing injury pursuant to s 4 of the 1987 Act. What must be demonstrated after examining the causal chain on a commonsense basis is the applicant having suffered pain and/ or restriction in her wrist and hand as a result of the injury to her shoulder: see Moon v Conmah Pty Ltd [2009] NSWWCCPD 134; Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 and Koorangang Cement Pty Limited v Bates (1994) 35 NSWLR 452.
The applicant has demonstrated that causal connection. Her complaints in relation to the wrist and hand have been consistent, and their aetiology being linked to the shoulder injury is supported by both treating and IME evidence. For these reasons, the applicant has established the presence of the consequential conditions to the wrist and hand as alleged.

Consequential condition to the neck/cervical spine

In my view, the applicant has not made out the presence of a consequential condition to her cervical spine. Although there is reference in the material to neck symptoms, which I find are genuine, in my view the applicant has not discharged her onus of proving that those symptoms were caused by her right shoulder injury. The only medical support for such a proposition is found in the reports of Dr Roshandel, general practitioner. The applicant’s treating surgeon Dr Kinzel, in whose views I place considerable weight, was specifically asked whether the applicant’s cervical spine symptoms could be attributed to the right shoulder injury and declined to make that causal connection. Additionally, IME Dr New makes no comment on the applicant’s cervical spine at all, let alone attribute the symptoms to the right shoulder injury.
On balance, I therefore find the applicant has not established a consequential condition to cervical spine and there will be an award for the respondent on this aspect of the applicant’s claim.

Alleged secondary psychological condition

In my view, the applicant has also failed to establish the presence of a secondary psychological condition. Considerable time in this matter was devoted to the question of whether, had I found the applicant’s symptoms were caused by an abnormal illness behaviour, that would be sufficient to make a finding of a secondary psychological injury. Given I have found the applicant’s symptoms are in fact related to physical pathology in the nature of a frozen shoulder, in my view it is not necessary to make a finding in relation to that aspect of the matter.
Nevertheless, the applicant has pleaded a claim for a secondary psychological injury. That claim is not pleaded specifically in the alternative to a physical injury finding. It ought to therefore be dealt with.
Again, the only support for the finding of a psychological condition, such as it is, comes from the applicant’s general practitioner. Dr Roshandel indicates the applicant is suffering from anxiety and depression in her question-and-answer report to the respondent’s insurer. However, there is no material to support a diagnostic finding of a recognisable psychological disorder in Dr Roshandel’s clinical records or those of any other treating practitioner in this matter. Additionally, the applicant has not retained an IME to pass comment on the alleged psychological condition.
In my view, there is a paucity of evidence to support the alleged secondary psychological condition and I therefore reject the applicant’s claim in relation to it. There will be an award in favour of the respondent on the claim in relation to the alleged secondary psychological condition.

Incapacity for employment

As was noted at the hearing, the dispute in relation to incapacity in this matter was dependent upon the outcome of the issue causation/ongoing injury. Mr Gaitanis has quite appropriately conceded that if there was a finding in the applicant’s favour on that point, there was little which could be said to dispute a finding of total incapacity for the period claimed.
Having made the findings which I have in relation to primary liability concerning the right shoulder and the consequential condition to the right wrist and hand, it follows in my view the evidence supports a finding the applicant has been totally incapacitated for employment from 25 July 2023 to date and continuing as a result of her injury.
At the hearing, there was no issue of the applicant’s PIAWE were $1,430 per week. The period the subject of the claim in these proceedings is entirely covered by s 37 of the 1987 Act. In accordance with the provisions of that section, the relevant figure for an applicant totally incapacitated is 80% of their PIAWE, in this instance $1,144 per week.
It therefore follows from my findings and from my calculations in relation to the applicant’s PIAWE that the respondent will be ordered to pay her weekly compensation at the rate of $1,144 per week from 25 July 2023 to date and continuing.

SUMMARY

For the above reasons, the Commission will make the findings and orders set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 172

9 April 2024