Zaya v A & W Hollier Wholesale Distributors Pty Ltd
[2021] NSWPIC 157
•1 June 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Zaya v A & W Hollier Wholesale Distributors Pty Ltd [2021] NSWPIC 157 |
| APPLICANT: | Shant Zaya |
| RESPONDENT: | A & W Hollier Wholesale Distributors Pty Ltd |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 1 June 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Permanent impairment compensation claim for accepted cervical spine and right shoulder injuries and disputed consequential left shoulder condition; Moon v Conmah Pty Limited considered regarding sufficiently obvious connection for medical expert between right shoulder injury and left shoulder symptoms; no requirement for section 4 injury for left shoulder; Kooragang Cement Pty Ltd v Bates and Comcare v Martin considered; Held- found left shoulder condition resulted from right shoulder injury; referred to Medical Assessor. |
| DETERMINATIONS MADE: | 1. Matter remitted to the President for referral to a Medical Assessor for assessment of the degree of permanent impairment resulting from injury on 8 February 2016 with respect to the cervical spine, right upper extremity and consequential left upper extremity condition. 2. Documents to be provided to the Medical Assessor are the Application to Resolve a Dispute and attached documents, Reply and attached documents, Application to Admit Late Documents dated 16 April 2021 and attached documents, as well as a copy of this Certificate of Determination and Statement of Reasons. |
STATEMENT OF REASONS
BACKGROUND
This is an application by Mr Shant Zaya (the applicant) for a claim for permanent impairment compensation arising from 8 February 2016 in the course of his employment with A&W Hollier Wholesale Distributors Pty Ltd (the respondent) in respect of the applicant’s cervical spine, right upper extremity and consequential left upper extremity condition.
Injury to the cervical spine and right upper extremity were not in dispute.
The section 78 notice dated 12 July 2019 relevantly disputed liability for the claimed left shoulder condition consequential to the accepted right shoulder injury. The report of Dr Breit dated 19 June 2019 was relied upon.
The section 78 notice dated 28 January 2021 disputed that the applicant was entitled to permanent impairment lump-sum compensation because the permanent impairment has not resulted from an injury as required by section 66 (1) of the Workers Compensation Act 1987 (the 1987 Act). The dispute notified in the section 78 notice dated 12 July 2019 in respect of the left upper extremity was confirmed and maintained based upon the report of Dr Breit dated 19 June 2019 which stated that the alleged left shoulder injury was not a consequential injury to the accepted right shoulder injury.
PROCEDURE BEFORE THE COMMISSION
At the conciliation and arbitration hearing of this matter on 22 April 2021, the applicant was represented by Mr Carney of counsel, instructed by Mr Eggins, solicitor, and the respondent by Mr Grimes, instructed by Mr McCourt, solicitor.
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;
(c) Application to Admit Late Documents lodged by the solicitor for the respondent and dated 16 April 2021.
Oral Evidence
There was no application for leave to give oral evidence or to cross examine the applicant.
EVIDENCE
Statement of the applicant
The applicant provided a statement dated 26 February 2021. He was born in Iraq on 1 February 1990 and came to Australia in 2006.
He said that on 8 February 2016 he suffered an injury to his neck and right shoulder when a forklift dislodged a pallet and boxes that fell and landed on his neck and right shoulder.
The applicant stated that “owing to the chronic right shoulder pain I increased the use of the left shoulder. The pain in my left shoulder increased.” He said that the pain in his left shoulder commenced about three months after the date of the right shoulder injury. He stated that among other disabilities in relation to his injury he has pain, tenderness and restriction of movement of the left shoulder. The applicant stated that movements to his back, neck, left shoulder and right shoulder are very restricted and he has pins and needles in both arms.
Dr Sher
Three reports of Dr Sher, orthopaedic surgeon, dated 24 June 2016, 11 July 2016 and 15 July 2016 were attached to the documents provided by the parties.
In his initial treating report of 24 June 2016, Dr Sher noted that he initially saw the applicant on 20 June 2016. He recorded a history of boxes falling onto the right side of the applicant’s neck and shoulder. He recorded that the applicant stated that he was in terrible pain using Panadeine Forte which is causing stomach problems and he is unable to sleep, sit, walk or work and he was becoming depressed and angry.
Dr Sher recorded that clinical examination showed a significantly excessive pain response to simply touching the skin and it was impossible to adequately examine the glenohumeral joint for power or stability due to the pain reaction and within the testing limits that he could achieve he was unable to detect specific muscle weakness. Dr Sher noted that the MRI scan did not show any reason for the pain. Dr Sher suspected that the applicant had complex regional pain syndrome and arranged for a bone scan.
In his treating report of 11 July 2016, Dr Sher reviewed the bone scan and was of the opinion that it confirmed complex regional pain syndrome. He suggested referral to a pain clinic.
In his report of 15 July 2016, Dr Sher stated that the diagnosis is complex regional pain syndrome. Dr Sher was of the opinion that “pain is obviously where the issue lies”.
Dr Hassan
In the ARD and Reply were two treating reports of Dr Hassan, consultant neurologist, dated 22 June 2017 and 4 August 2017.
In his report dated 22 June 2017, Dr Hassan noted the referral for bilateral hand weakness and numbness. He recorded that the applicant described that the symptoms had been progressive over the past two weeks and described weakness in both hands, forearms and arms. He noted the background history included right shoulder injury after boxes fell onto his shoulder at work with subsequent poor functional recovery and that the applicant is currently performing light duties at work at a warehouse.
Dr Hassan noted on examination normal power proximally in both upper limbs with apparent weak grip in both hands. He noted that the applicant reported reduced pinprick sensibility in both hands, forearms and arms with an apparent sensory level at above the shoulders bilaterally in a circumferential distribution. He noted an apparent sensory disturbance which did not fit with a neuro anatomical distribution. He arranged for further investigation.
In his report dated 4 August 2017, Dr Hassan noted that the applicant had presented for follow-up of bilateral upper limb numbness and subjective weakness and since last review the applicant described that his symptoms have been static with no deterioration or spontaneous improvement. Dr Hassan was of the opinion that the applicant had been thoroughly investigated from a neurological point of view with no apparent neurological cause for his symptoms.
Dr Powell
In his medicolegal report to the workers compensation insurer dated 13 December 2016,
Dr Powell, orthopaedic surgeon, recorded the history that about 10 months previously, the applicant was standing next to some pallets stacked with boxes to 2 m in height, when a forklift nudged a pallet causing three boxes to dislodge from the top and fall striking the applicant on the superior aspect of the right shoulder causing pain about the right deltoid region. Dr Powell noted the history that the applicant quickly developed swelling and bruising in the region.
Dr Powell noted that his treating GP organised an x-ray which did not show any fractures and he was given analgesics and referred to physiotherapy which he commenced at a later time, but with no improvement.
After the accident, as noted by Dr Powell, the applicant was off work for about two months and returned on light duties and built them up to eight hours per day, five days per week with a 2 kg lifting limit.
Dr Powell recorded that the applicant had severe pain about the shoulder and indicated “from that moment my life has changed”. Dr Powell noted that the applicant continued to have pain about the shoulder with difficulty moving the arm and lifting or carrying anything, which would increase the pain. The applicant did exercises for several months with Peak Conditioning and had an injection to the shoulder, which made no difference to the symptoms, and Dr Powell noted that the applicant was then referred for pain management in Burwood.
With reference to current symptoms, Dr Powell noted that the applicant “was told not to sleep on his right shoulder, and so has been sleeping on his left and recently this has started to give him some pain troubles also.” I consider this to be a record of the applicant complaining that his left shoulder had recently started to also give him some pain troubles.
Dr Powell recorded that on examination at the left shoulder there is no particular tenderness to palpation and no evidence of wasting. Dr Powell recorded range of movement at the left shoulder but did not provide a conclusion or opinion in this regard, other than a notation of “slight dyssynchrony of movement”. He referred to a number of investigations of the cervical spine and right shoulder.
Dr Powell was of the opinion that:
“Mr Zaya’s history of onset of symptoms, mechanism and clinical presentation suggests that he suffers from some form of chronic pain disorder affecting principally the proximal right limb girdle region with some circulatory changes noted.
This is most likely a form of complex regional pain syndrome, the trigger likely to have been acute stretch of soft tissues and possibly the brachial plexus through downward displacement of the right shoulder girdle and upper limb relative to the neck from the impact.”
Dr Powell said that beyond this description the diagnosis, classification and clinical pathways of chronic pain disorders were beyond his area of expertise and would be best handled by a pain specialist.
Dr Powell was also of the opinion that the mechanism of injury is consistent with producing soft tissue strain in the region and would be sufficient to lead to the development of a chronic pain disorder. He also noted that complex regional pain and other chronic pain syndromes can last for many years and it is difficult to project how long a particular incident will last.
Dr Powell was also of the opinion that the applicant’s “current clinical presentation is consistent with the development of a chronic pain disorder from the incident described and thus remains related to his work.” Dr Powell also noted that “making a diagnosis of ‘malingering behaviour’ is also not in my area of clinical expertise”.
Dr Powell was also of the opinion that:
“Mr Zaya does seem to exhibit some degree of heightened reaction to his symptoms but whether these are behavioural or psychiatric in nature I cannot tell, but these can have considerable influence on the course of chronic pain disorders and outcome.”
Dr Powell, in response to a question whether there is anything other than work-related symptoms affecting his recovery or functional capacity, was of the opinion that:
“Mr Zaya’s difficulties, as outlined above, have arisen as a result of the incident in his work which appears to have generated a chronic pain disorder and it appears that this is a little out of control. There did not appear to be any other factors but as these can often be more of a behavioural origin or culture related, these may be bought out through careful pain management assessment and identification of such matters through proper enquiry may assist in understanding how and why Mr Zaya has deteriorated.”
Dr Panjratan
In his medicolegal report to the workers compensation insurer dated 29 May 2018,
Dr Panjratan, orthopaedic surgeon, provided an opinion in respect of the applicant’s right shoulder.
He noted in respect of “General Particulars as filled in Information Sheet” that the applicant is currently taking Panadeine Forte but was not currently having any formal treatment.
Dr Panjratan also noted in these particulars that the applicant “can drive an automatic car for about 5 – 10 minutes. He cannot do housework. He cannot do the shopping. He cannot do the gardening or lawnmowing.”
Dr Panjratan recorded a history of injury that 8 February 2016 the applicant was a supervisor and was helping other workers when a forklift in another aisle hit the rack from the other side and boxes from the pallet fell onto his right shoulder and the right side of the neck.
In relation to work status, Dr Panjratan noted that the applicant currently was not working and that the last time he worked was in June 2017.
Dr Panjratan noted investigations of the cervical spine and right shoulder and also a bone scan. He also noted an ultrasound-guided right subacromial bursal injection on 16 May 2016 but that did not help.
He noted that following the injury the applicant consulted his GP Dr Nashmi and was treated by that GP until he changed his nominated treating doctor on 14 March 2018 to Dr Vyas.
Dr Panjratan also noted that the applicant was referred to pain management which commenced on 31 August 2016 but he failed to attend for more than 4/10 sessions as he said it did not help him at all.
Dr Panjratan noted:
“He was referred to Dr Ian Smith, Injury Management Consultant, but has not seen a specialist for treatment. He has also seen another doctor on 8 May 2018. I am unsure who is referring to.
I have read the report of Dr Ian Smith, dated 18 July 2017 in which he documented that he can only use his left hand and he struggles to use his right hand or move he right elbow.”
Dr Panjratan also noted the report of Dr Hassan.
Dr Panjratan did not record a history of left shoulder symptoms and pain. He also did not refer to documents that had been provided to him, other than the reports of Dr Ian Smith and Dr Hassan noted above. There was no reference to the opinion or report of Dr Powell.
In relation to the right shoulder and neck, Dr Panjratan was unable to offer an applicable diagnosis and he thought that there seems to be some psychological issues and the x-rays did not show anything significant. He recommended progress x-rays and an ultrasound of the right shoulder.
Dr Breit
Attached to the ARD and the Reply were two medicolegal reports of Dr Breit, orthopaedic surgeon.
In his medicolegal report to the workers compensation insurer dated 19 June 2019, Dr Breit noted the applicant:
“to be seated in the waiting room apparently in pain, followed me to the consulting room and by that time was writhing in apparent agony, moving his head around, rubbing his left arm, bending forward and at one stage resting his forehead on my desk. Those behaviours continued during the entire assessment.”
The history of injury on 8 February 2016 was recorded by Dr Breit. He noted that a forklift driver hit some racking which was said to have dislodged a pallet of boxes which allegedly fell 3 to 4 m and some of these boxes, which may have weighed 5 to 6 kg, were said to have landed on the right shoulder and neck. Dr Breit noted that the left shoulder was not injured at that time.
In respect of the left shoulder Dr Breit noted that he was told that problems started a couple of months ago and that the applicant claimed it was secondary to overuse. Dr Breit noted that there had been no treatment although there apparently had been a suggestion for a steroid injection in respect of the left shoulder.
Dr Breit noted present complaints of pain in both shoulder cowls and then in various areas of his arms which occur at various times, with very restricted movements and pins and needles in both arms, said to be distributed all over.
On examination, Dr Breit recorded a withdrawal response to touching the left shoulder cowl and tenderness extending all the way to the elbow. After examining the right shoulder, noting elevation of the right shoulder was associated with “a scream of pain”, Dr Breit examined the left shoulder. Dr Breit recorded that:
“I then went to the left side, on this occasion there was about 50° of elevation with a scream of pain and 40° abduction with a scream of pain followed by the same situation with the elbow as before.
I considered further attempts at assessing the shoulders to be inappropriate and futile. In a seated position on the edge of the examination couch, he was unable to cross his arms, there was said to be global diminution of sensation in the left arm and I did not even attempt to assess strength. Reflexes were normal but associated with complaints of pain in the left arm.”
Dr Breit reviewed the left shoulder x-ray of 15 May 2019. He disagreed with the opinion of the radiologist that the acromioclavicular joint is widened and on that basis there may have been a previous subluxation. Dr Breit was of the opinion that the x-ray does not define subluxation and it cannot be assessed unless a weight-bearing view is undertaken. In relation to the reported bursitis, Dr Breit noted that this is a very observer dependent investigation, although Dr Breit did not state whether or not he agreed with that observation. In the context of his opinion described below, by implication he did not agree.
Dr Breit was of the opinion that “there is no left shoulder injury”. Dr Breit was of the opinion that “this is entirely a factitious disorder at this point.”
Dr Breit further stated:
“In my opinion, there has been no injury to the left shoulder and no secondary injury. The findings are totally out of keeping with any reasonable presentation and is one of the most extraordinary presentations of abnormal illness behaviour and maximisation that I have ever witnessed. I would consider that this is now an entirely factitious disorder.”
Dr Breit concluded:
“In my opinion, there is nothing wrong with Mr Zaya, it has been a long time since this injury occurred and his presentation is of gross maximisation to the point of absurdity. He is fit for preinjury duties now and probably for a long time previously.”
In his medicolegal report to the solicitors for the respondent dated 13 January 2021, Dr Breit confirmed the previous history of injury in relation to the right shoulder and the left shoulder. Dr Breit noted that since the consultation in June 2019, the applicant said that he had “left shoulder injections which he claims did not help, in fact it only made it worse”. Dr Breit noted the only treatment at present was analgesia and the applicant denied any further treatment since his last assessment.
Dr Breit noted with respect to present complaints, severe bilateral anterior shoulder pain with distal radiation in the nature of global pain in the arms including the hands and on occasion left hand numbness. Dr Breit also noted complaints of noises in the left shoulder with movement and that the applicant cannot move his hand behind his back and has difficulty with dressing.
In respect of medication, Dr Breit noted that he was told that the applicant “takes a tablet for anger, a tablet for depression and tablets for pain”. Dr Breit noted that the applicant said that he does nothing in the house and spends most of his time in the room.
On examination, after noting tenderness and restriction in relation to the cervical spine and right shoulder, as well as the elbows and the lumbar spine, Dr Breit noted that “shoulder movements were grossly symmetrically and wilfully restricted” with evidence of
co-contraction of the muscles and abnormal posturing of the shoulder and neurologically there was global loss of sensation in the left upper extremity extending into the trapezius and the scapula.
Dr Breit noted that he had been provided with a variety of reports and referred to the reports of Dr Sher and Dr Hassan. Dr Breit noted MRI reports of 20 April 2016 in respect of the cervical spine and the shoulder (unspecified). He also noted that “a nuclear medical scan from 2 July 2016 seems to indicate a diagnosis of CRPS, however the wording is a little unclear.”
Dr Breit confirmed his previous opinion that the presentation is of a factitious disorder. He was of the opinion that “the clinical findings are totally inconsistent with any musculoskeletal pathology and there are multiple inconsistencies not the least of which is the variance in findings between today and the report by Dr Stephenson”. Dr Breit was of the opinion that “there is no permanent impairment from any musculoskeletal injury”.
In respect of the report of Dr Stephenson of 26 October 2020, Dr Breit commented that
Dr Stephenson had accepted the applicant’s “extraordinary level of complaints and restriction”. Dr Breit opined that “it is unusual in the extreme for people with true organic pathology to have symmetrical loss of movement as he noted and of course there is the vast difference in findings already noted”.
Dr Stephenson
In his medicolegal report to the solicitors for the applicant dated 26 October 2020,
Dr Stephenson, orthopaedic surgeon, recorded the history of injury that a forklift vehicle caused a pallet with boxes on it to fall and fortunately the applicant was not hit by the pallet though at least three boxes fell onto his shoulder and right sided neck area, causing pain and injury.
Dr Stephenson also recorded that “initially, the right shoulder was restricted and then subsequently, there was a secondary effect on the left shoulder”.
Dr Stephenson noted the applicant’s GP, Dr Vyas certified on 31 May 2019 in respect of capacity for work and the GP noted right shoulder pain and that he had been getting left shoulder pain for about two months and requested left shoulder x-ray and ultrasound to assess.
Dr Stephenson reviewed radiology investigations reports including an x-ray and ultrasound of the left shoulder of 15 May 2019, which was requested by Dr Doran Sher. He noted the opinion of the nuclear physician, which concluded:
“while there is evidence of some degenerative change in the right glenohumeral joint, which is more marked than on the left side, the major functional diagnosis is of complex regional pain syndrome”.
Dr Stephenson noted that the applicant said that the pain is felt over the shoulders, over the dorsum of the forearms and it is felt at the right side of the neck and both shoulders.
Dr Stephenson also noted the report of Dr Hassan of 4 August 2017.
In reviewing psychiatric reports, Dr Stephenson noted the reports of Dr McDonald, psychiatrist, of 14 May 2018 to Allianz; Dr Benjamin, psychiatrist, of 13 February 2017 to
Dr Haddad at Fairfield; and to Dr Peter Whetton, psychiatrist dated 8 February 2020.
Dr McDonald did not diagnose a psychiatric disorder and commented that treatment of chronic pain was outside his area of expertise. Dr Benjamin also did not diagnose a psychiatric disorder.
Dr Whetton’s opinion was noted by Dr Stephenson as diagnosing a presentation leading to a diagnosis of Major Depressive Disorder. Dr Stephenson recorded Dr Whetton’s opinion as follows:
“It is noted at a previous IME in 2018, no psychiatric diagnosis was given. His presentation today was convincing of that of a mentally ill person… From the history that he gives us subsequent to his shoulder injuries and what he complains of ongoing pain and with loss of ability to regain employment that his described major depressive disorder has evolved”.
Dr Stephenson noted that he had provided other information relevant to the complaints or disabilities.
Also reviewed by Dr Stephenson were the reports of Dr Panjratan dated 29 May 2018 and
Dr Sher. Dr Stephenson noted the diagnosis of Dr DS of complex regional pain syndrome and that “pain was obviously where the issue lies”.
With respect to present complaints, Dr Stephenson noted the applicant complained of bilateral shoulder pain and some pain on the right side of the neck. He noted on examination that grip strength was weak with poor effort and that there were no objective findings in the upper and lower extremities and there was a good range of movement of both elbows, wrists and hands.
On examination, in relation to the shoulders, Dr Stephenson recorded that in both shoulders there was a measurable restriction in range of motion of equal degree.
Dr Stephenson was of the opinion that at least three boxes fell from rack causing pain over the right shoulder with subsequent development of a secondary effect on the opposite left shoulder.
In respect of the shoulders, Dr Stephenson was of the opinion that there was a measurable restriction in range of motion of both shoulders.
Clinical records of Cecil Hills Medical Centre
The first entry in the clinical notes of the Cecil Hills Medical Centre was that of the applicant’s treating GP, Dr Vyas dated 30 January 2018. That entry noted a right shoulder injury at work with treatment by another GP, Dr Nashmiat a different practice, and the applicant saw a specialist as well. Dr Vyas noted that the applicant had also seen a psychiatrist due to depression afterwards. Dr Vyas noted that the applicant wished to change his nominated treating doctor.
The clinical records noted a consultation with Dr Vyas on 28 March 2018 in which it was noted that the applicant stated that he gets pain in his shoulders. Dr Vyas recorded examination of the movement of both shoulders and also noted “no wasting”. The clinical record for a consultation on 27 April 2018 with Dr Vyas noted that the applicant said that he was getting pains in both shoulders now.
In a handwritten response, dated 22 May 2019, to an enquiry by workers compensation insurer, Dr Vyas stated:
“Due to chronic [right] shoulder pain, patient stated he had been compensating with increased use [left] shoulder. Stated getting increasing pains and worse over the last 2-3 months”.
Reasons and Decision
In summary, the respondent submitted that there is an absence of detail as to how and when the consequential left shoulder condition was said to result from the accepted injury to the right shoulder on 8 February 2016. The respondent submitted that there was no detail as to what constituted overuse in the applicant’s statement and in the opinion of Dr Stephenson or elsewhere in the available evidence. The respondent also submitted that the applicant’s evidence was inconclusive or contradictory as to the timeframe for the complaints of overuse of the left shoulder.
The earliest medical evidence in the available evidence that refers to the left shoulder is the report of Dr Powell dated 13 December 2016. He noted complaint of recent left shoulder pain but did not specifically refer to the circumstances in which the left shoulder pain arose. However, in my view a reading of the whole report of Dr Powell indicates first that the left shoulder pain arose in the context of constant right shoulder pain, aggravated by movement and if the applicant lifted or carried anything more than about 5 kg this would increase the right shoulder pain severely. Second, the history of the onset of left shoulder pain was also in the context of Dr Powell’s view that the mechanism of injury and subsequent clinical course and presentation suggest some form of chronic pain disorder affecting the right upper limb and that the applicant exhibited some degree of heightened reaction to his symptoms.
I do not accept the submission that the absence of a description of how the applicant “overused” or increased use of his left arm and shoulder in the history recorded by Dr Powell, and in particular in the first three months after the injury to the right shoulder, undermines the applicant’s statement.
As noted above, the context of Dr Powell’s opinion is favourable for the applicant with respect to the applicant’s statement as to the onset of left shoulder symptoms following injury to the right shoulder. Dr Powell diagnosed a chronic pain disorder and noted the applicant complained of severe pain in his right shoulder and had a heightened reaction to his symptoms. This in my view also adds weight to the applicant’s claim that following the injury to his right shoulder he increased the use of his left arm and shoulder.
The respondent also submitted that there was no detail of what the applicant did in the first three months after the injury to the right shoulder that would support an allegation of injury when the symptoms came on in March 2018. I do not accept this submission. Dr Powell was of the opinion that it was uncertain how long the chronic pain disorder would last, as such disorders can last for many years. This in my view supports a finding that the applicant’s left shoulder symptoms of pain and restriction continued after he was examined by Dr Powell and was continuing at the time he complained of pain in both his shoulders to his new GP in March 2018.
The applicant’s statement was made in February 2021, a period of five years after the injury to the right shoulder, and more than four years after the report of Dr Powell. Dr Powell noted only that the applicant had “recently” started to have pain troubles in the left shoulder. After a period of almost five years, in my view the applicant’s memory of the exact timeframe of three months is probably not accurate, and the onset of symptoms may have been somewhat longer. However, the exact time in my view is not material as the report of
Dr Powell confirms the applicant’s history of the onset of symptoms at some recent time before his examination.
The respondent also submitted that there was an absence of detail as to what the applicant was doing in the period of three months after the injury to substantiate a claim of “overuse” of the left shoulder. The respondent submitted that in this period of three months the applicant was doing restricted duties at work and had a period of time off work, while at the same time it was recorded that he was not able to do anything around the house. I do not accept this submission.
Although Dr Powell did not refer to “overuse” or using the left shoulder more, his report in my view substantiates the applicant’s statement. The applicant stated that due to his chronic right shoulder pain he increased the use of the left shoulder and the pain in his left shoulder commenced about three months after the date of the injury. Dr Powell recorded the history that the applicant had constant pain about the right shoulder region which was aggravated by movement and if he lifted or carried anything more than around 5 kg this would increase the pain severely.
In my view the increased use of the left arm continued through 2017. Dr Panjratan noted the report of Dr Ian Smith dated 18 July 2017, which is otherwise not before me, in which it was documented that the applicant can only use his left hand and he struggles to use his right hand or move the right elbow. Although it might be said that this was an observation only in July 2017, this in my view is a continuation of the chronic pain and heightened sensitivity of the applicant as diagnosed in the report of Dr Powell. Dr Panjratan in May 2018 noted that the applicant continued to complain of pain in the right shoulder which is there most of the time and he is unable to lift any heavy things and sometimes his arm feels numb and shaky. He noted that the applicant could not even lift more than 2 kg. In my view, the reported symptoms of the applicant with respect to his right arm are a continuation of the symptoms reported by the applicant to Dr Powell and Dr Smith, although Dr Panjratan made no other reference to the left shoulder and arm.
I do not accept the respondent’s submission that the evidence points to a lack of activity and unemployment since 2016 and hence there is no causal element to the left shoulder pain and restrictions. I have found that the applicant started to have pain and restrictions in his left shoulder about three months after the right shoulder injury in circumstances where he felt severe pain in his right shoulder and he increased the use of his left arm and shoulder. With the consultation with Dr Powell in December 2016 the course of his severe right shoulder pain and onset of left shoulder pain was well documented. The applicant initially performed suitable duties at work. Additionally, the period of unemployment that commenced in 2016 and also the history of not being able to do household activities, in my view does not preclude increased use of the left arm more generally such as in the documented difficulties in dressing and showering, as noted in reports such as those of Dr Breit. Dr Stephenson noted that he cannot drive for long because of the shoulder discomfort.
The respondent also submitted that the clinical records of the treating GP indicate a degree of scepticism of the applicant’s complaints in relation to his left shoulder and were generally not supportive in this regard and as a result the applicant’s complaints and history of complaints in relation to his left shoulder are not substantiated in this regard. I do not accept this submission. Although the GP adopted a questioning approach, I would not place any weight on the notes in this regard in the absence of a report from the GP stating his reasoning for such an approach. I also do not place any weight on the clinical notes in this regard where the GP appears not to have referred to the opinion of Dr Powell or to psychiatric opinion. The GP clinical notes in May 2019 also referred to the applicant bringing a letter from his solicitor and wanting to claim for the left shoulder. I place no weight on this without knowing the contents of the correspondence and also having regard to the prior complaints of left shoulder pain and restrictions commencing in 2016.
The GP reported on 22 May 2019 that the applicant had stated that due to chronic right shoulder pain he had been compensating with increased use of the left shoulder and he was getting increasing pains, worse over the previous two to three months. In my view, this supports the applicant’s statement that due to chronic right shoulder pain he had increased the use of his left shoulder and noticed pain in the left shoulder after about three months from the right shoulder injury. The handwritten GP response of 22 May 2019 is also not inconsistent with the documented reporting by Dr Powell and Dr Smith. For Dr Powell it was complaints of constant pain in the right shoulder and also left shoulder pain. For Dr Smith it was noted that he can only use his left hand and he struggles to use his right hand. It was also consistent with the applicant’s complaints of both shoulders being painful to Dr Vyas in the clinical records of March 2018. In my view there was a degree of pain in the left shoulder prior to February 2019 and an increase in left shoulder symptoms in about February or March 2019.
Neither Dr Stephenson nor Dr Breit referred to the report of Dr Powell. Dr Stephenson referred to and noted the reports of Dr Sher. Dr Stephenson noted the diagnosis made by
Dr Sher of complex regional pain syndrome. Dr Breit in his report of 13 January 2021 also noted a report of Dr Sher who diagnosed CRPS. Dr Breit did not accept that diagnosis as the findings are the same as a factitious disorder, as noted by the AMA Guides, and the neurological opinion of Dr Hassan was of no neurological abnormality with subsequent normal EMG studies. Dr Breit also noted that a nuclear medical scan from 2 July 2016 seemed to indicate a diagnosis of CRPS, although Dr Breit was of the view that “the wording is a little unclear”.
I do not accept the opinion of Dr Breit. He did not accept the presentation and complaints of the applicant. Dr Breit diagnosed a factitious disorder.
With reference to the opinion of Dr Sher of a diagnosis of CRPS, Dr Breit noted that the findings are the same as a factitious disorder under the AMA Guides (presumably the AMA Guides to the Evaluation of Permanent Impairment, fifth edition). Dr Breit did not refer to the opinion of Dr Powell, which in my view is significant for demonstrating that by the end of 2016 the applicant was suffering a chronic pain disorder with aspects of heightened sensitivity to pain. Although Dr Stephenson did not have the report of Dr Powell to the insurer, he was prepared to accept the applicant’s complaints and restrictions noting the background of the opinion of Dr Sher and the psychiatric diagnosis of Dr Whetton. Dr Breit did not persist with a test of the range of motion, unlike Dr Stephenson. Chronic pain and also mental illness were discussed in the psychiatric opinions quoted by Dr Stephenson in his report. Although Dr Breit referred to the report of Dr Stephenson and offered criticism (see below), he did not engage with the issue of chronic pain, as distinct from his brief discussion of CRPS. In my view, Dr Breit’s diagnosis of a factitious disorder cannot be accepted.
Dr Stephenson was of the opinion that three boxes fell onto his shoulder and right sided neck area causing pain and injury. He was of the opinion that “Initially, the right shoulder was restricted and then subsequently, there was a secondary effect on the left shoulder”.
Dr Stephenson also provided the following with respect to the history:
“At least three boxes fell from a rack, which was struck by a forklift vehicle, causing pain over the right shoulder with subsequent development of a secondary effect on the left shoulder. Dr Doron Sher advised there was no surgical management required for the shoulders.”
Although concise, in my view Dr Stephenson provides the necessary opinion as to the relationship between right shoulder restrictions and the subsequent “secondary effect” on the left shoulder. Dr Stephenson’s reference to the opinion of Dr Sher was with respect to his reports of 24 June 2016 and 15 July 2016, in which it was reported, with respect to the right shoulder, that the applicant stated that he was in “terrible pain” and on clinical examination there was a significantly excessive pain response. In my view, against a background of severe pain and restrictions in the right shoulder, and evidence of a chronic pain disorder and heightened sensitivity to pain, the connection between the right shoulder injury and the left shoulder symptoms is sufficiently obvious that it requires no further explanation by
Dr Stephenson.[1]
[1] Moon v Conmah Pty Limited [2009] NSWWCCPD 134 (Moon) at [49] with reference to Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [88]- [89]
I accept and prefer the opinion of Dr Stephenson. He was able to test the range of motion of both the applicant’s shoulders. He accepted the applicant’s complaints of pain and restrictions in both shoulders, an acceptance of genuine complaints and restrictions which was available on the background of Dr Sher’s diagnosis and opinion. He noted the opinion of Dr Sher and the available psychiatric opinion. Although not available to Dr Stephenson, the diagnosis and opinion of Dr Powell that there was a chronic pain disorder gives weight to the acceptance by Dr Stephenson of the applicant’s complaints and restrictions. While
Dr Stephenson referred to a history contained in the medical certificate of the GP of May 2019 indicating the certificate noted right shoulder pain and that the applicant had been getting left shoulder pain for about two months, I am satisfied that there was a fair climate for Dr Stephenson to provide his opinion[2].
Dr Breit criticised Dr Stephenson’s acceptance of the applicant’s “extraordinary level of complaints and restriction”. Dr Breit was of the opinion “it is unusual in the extreme for people with true organic pathology to have symmetrical loss of movement as he noted and of course there is the vast difference in findings already noted.”
The criticism made by Dr Breit follows from his opinion that the clinical findings were totally inconsistent with any musculoskeletal pathology. He was also of the opinion that there is no permanent impairment from any musculoskeletal injury.
The respondent also submitted that Dr Stephenson’s findings on examination and diagnosis were not a description of pathology. There was no indication of pathology in the x-ray of the left shoulder of 15 May 2019, in the opinion of Dr Breit.
I do not accept the submission of the respondent, nor do I accept the criticism of Dr Breit regarding the opinion of Dr Stephenson. Dr Breit opined that there was no injury to the left shoulder and no secondary injury. The respondent’s submission relied upon identification of pathology. Neither injury nor pathology are required. As noted in Moon, for a consequential condition it is not necessary to establish injury within the meaning of section 4 of the 1987 Act. All that is required is that the symptoms and restrictions in the left shoulder have resulted from the right shoulder injury.[3]
[3] Moon at [45]
The common sense approach to causation[4] should have regard to the statutory context[5]. The context in which a common sense approach to causation is placed is within section 66(1) of the 1987 Act, that is whether the consequential left shoulder condition resulted from the right shoulder injury of 8 February 2016[6].
[4] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (Kooragang)
[5] Comcare v Martin [2016] HCA 43
[6] Moon at [46]
The causal chain in this case was that the applicant increased the use of his left shoulder as a result of the right shoulder injury, and after about three months he noticed left shoulder pain as well and in December 2016 in the context of severe right shoulder pain and a chronic pain disorder and a diagnosis of CRPS by Dr Sher in respect of the right shoulder, left shoulder pain was also noted by Dr Powell. Dr Smith in July 2017 documented that the applicant could only use his left hand and he struggled to use his right hand or move the right elbow and in March 2018 the applicant complained to his new GP of pain in both shoulders and in May 2019 the GP noted that the applicant stated due to chronic right shoulder pain he had been compensating with increased use of the left shoulder with increasing pain, worse over the previous two to three months. This is the temporal line which in my view establishes the causal link for Dr Stephenson’s opinion that the right shoulder was restricted and subsequently there was a secondary effect on the left shoulder.
I find that consequential left shoulder condition has resulted from the right shoulder injury of 8 February 2016.
Injury to the cervical spine and the right upper extremity are not in dispute. The matter will be remitted to the President for referral to a Medical Assessor for the assessment of the degree of permanent impairment as a result of on 8 February 2016, with respect to the cervical spine, right upper extremity and consequential left upper extremity condition.
NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58;
(1985) 62 ALR 85).
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