Zychowicz-Pawlenty v Coles Supermarkets Pty Ltd
[2009] NSWWCCPD 37
•1 April 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Zychowicz-Pawlenty v Coles Supermarkets Pty Ltd [2009] NSWWCCPD 37 | |||||
| APPELLANT: | Iwona Zychowicz-Pawlenty | |||||
| RESPONDENT: | Coles Supermarkets Pty Ltd | |||||
| INSURER: | Self Insured | |||||
| FILE NUMBER: | A1-5703/08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 1 December 2008 | |||||
| DATE OF APPEAL DECISION: | 1 April 2009 | |||||
| SUBJECT MATTER OF DECISION: | Factual findings as to injury | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | In Person | ||||
| Respondent: | Sparke Helmore | |||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s determination of 1 December 2008 is confirmed. | |||||
| Each party is to pay her or its own costs of the appeal. | ||||||
BACKGROUND
Mrs Zychowicz-Pawlenty (‘the appellant’) started work with Coles as a part-time night shelf packer at its Parramatta store in 2003. She worked in that job for about 20 hours per week until 31 December 2006 when she was transferred to work as a checkout operator, also part time. For a few weeks she worked in both positions, but ultimately ceased the shelf packing work and continued the part-time checkout duties.
On 29 May 2007, the appellant complained to a supervisor, Mr Carr, that she had pain in various parts of her body as a result of her duties. An Incident Report form was completed on or about 29 May 2007 and the appellant last worked on 5 June 2007.
On 2 November 2007, the appellant’s then solicitors, Teakle Ormsby Conn, claimed lump sum compensation on her behalf in the sum of $62,500 in respect of 34% whole person impairment as a result of injuries she sustained to her neck, back, right shoulder, left knee, right knee and right hip due to the nature and conditions of her employment with Coles from November 2005 to 24 April 2007. They also claimed compensation for pain and suffering in the sum of $35,000. Coles denied the claim.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 25 July 2008, the appellant claimed lump sum compensation in the same amounts and for the same injuries as set out in the letter of 2 November 2007.
By a Reply filed on 6 August 2008, Coles denied liability on the grounds that the appellant had not sustained an injury and, in the alternative, that her employment was not a substantial contributing factor to any injury.
The Commission listed the matter for conciliation and arbitration on 10 November 2008, when the Arbitrator heard submissions from both sides. Neither party called any oral evidence. At the arbitration, the appellant amended the Application to allege that her injury resulted from the nature and conditions of her employment from May 2003 (in lieu of November 2005) and to delete reference to injury to the right shoulder and allege injury to the left shoulder. In a reserved decision delivered on 1 December 2008, the Arbitrator found in favour of the appellant in respect of the injuries to her cervical spine, thoracic spine, lumbar spine, and knees, but in favour of Coles in respect of her alleged injuries to her left shoulder and right hip.
The Certificate of Determination issued on 1 December 2008 records the Arbitrator’s formal orders as follows:
“1.That the Applicant suffered injury as a result of the nature and conditions of her employment with the Respondent to 31 December 2006, namely injury to the cervical spine, the thoracic spine, the lumbar spine and both knees.
2.The matter is referred to the Registrar to refer the matter to an AMS to assess any WPI in relation to the (1) cervical spine (2) thoracic spine (3) lumber spine (4) left lower extremity (left knee), and (5) right lower extremity (right knee), as a result of the nature and conditions of employment as a night filler with the nominated date of injury being 31 December 2006.
3.The Registrar is requested to furnish to the AMS (1) the Application and attachments (2) the Reply and attachments (3) all late documents including the amended assessment of Dr Dixon attached to his letter to the Applicant’s solicitors dated 22 October 2008 and admitted as a late document in the proceedings on 10 November 2008.”
By an appeal filed on 24 December 2008, the appellant seeks leave to appeal the Arbitrator’s determination in respect of the left shoulder and right hip.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
In respect of the monetary thresholds in section 352(2), the appellant has submitted that, as the matter deals with body parts to be referred to an Approved Medical Specialist (‘AMS’), there are no monetary thresholds involved at this stage. Coles’ submissions on this issue are unhelpful and merely stated that, in the absence of submissions from the appellant, leave to appeal should not be granted.
In the absence of a specific award of compensation having been made, it is necessary to determine if the monetary threshold is established by considering the amount of compensation claimed in the Application and supporting documents. The claim includes a report from Dr Dixon in which he assessed the appellant to have a 9% whole person impairment as a result of the alleged injury to the left shoulder. He assessed 4% whole person impairment for stiffness in the right hip and 3% whole person impairment for trochanteric bursitis in the same hip. These assessments clearly establish that greater than $5,000 is “at issue” in the appeal. As no compensation has been awarded, the second limb of section 352 does not apply (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5).
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
I grant leave to appeal.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in:
(a)failing to find that the appellant suffered an injury to her right hip (‘the right hip claim’);
(b)failing to find that the appellant suffered an injury to her left shoulder (‘the left shoulder claim’);
(c)finding that the injury to the appellant’s cervical, thoracic, and lumbar spines, and her knees was an aggravation of a disease (‘the nature of the injury’), and
(d)whether the appellant is permitted to rely on additional evidence on appeal (‘additional evidence’).
ADDITIONAL EVIDENCE
Additional evidence on appeal is governed by section 352(6) of the 1998 Act, which provides as follows:
“(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.”
The appellant seeks to rely on fresh evidence or additional evidence on appeal in the form of the following material:
(a)an MRI report of her left shoulder from Dr Adler dated 18 December 2008;
(b)two reports from Dr Podgorski, rheumatologist, both dated 16 February 2009, and
(c)a report from Dr Dixon dated 27 February 2009.
In support of her application to rely on additional evidence on appeal, the appellant submits:
(a)the evidence was not in existence at the time of the arbitration;
(b)so far as the MRI is concerned, it is a diagnostic examination and should be admitted. In light of the new MRI report, it is possible that the neck injury is not the only source of pain in the left shoulder, and
(c)the evidence has considerable probative value which could change the outcome of the case.
Coles opposes the admission of additional evidence on appeal. It submits:
(a)an appeal is not a hearing de novo (Marks v Ricegrowers’ Co-operative Ltd [2006] NSWWCCPD 46);
(b)the appellant previously relied on an earlier MRI scan of the left shoulder, which was reviewed by Dr Podgorski who wrote on 20 September 2007 that the “MRI scan of the left shoulder is normal”. The appellant undergoing a further MRI scan with a different doctor is indicative that she is attempting to adduce evidence in “reply” and not “new evidence on appeal”;
(c)the appellant has not established that the failure to admit the MRI scan would cause a substantial injustice;
(d)for the MRI scan to be considered it would have to be referred to a WorkCover approved medical provider and an opinion obtained as to the conclusions reached in it and whether the pathology is related to the nature and conditions of the appellant’s employment, and
(e)Dr Dixon’s report merely reaffirms his position in his initial report.
For the following reasons, I admit the additional material into evidence on appeal:
(a)the material was not available at the time of the arbitration;
(b)it is relevant to the issues in dispute, and
(c)it is in the interests of justice to do so.
SUBMISSIONS, DISCUSSION AND FINDINGS
The Right Hip Claim
The Arbitrator was not satisfied that the appellant had suffered an injury, by way of aggravation or otherwise, to her right hip (Statement of Reasons for Decision (‘Reasons’), paragraph 44), but thought it was possible that she suffered referred pain from her lumbar spine to the right lower limb (right hip and generally), which was a matter for the AMS to assess (Reasons, paragraph 50). The appellant does not agree.
In summary, the appellant submits:
(a)the right hip pathology has been caused by bursitis, a labral tear and referred pain from the lumbar spine;
(b)in the absence of any underlying degenerative disease, the hip injury is a compensable work injury;
(c)the onset of right hip pain was recorded by Dr Lukaszewicz in November 2005;
(d)Dr Podgorski considered the source of her groin pain to be the right hip acetabular tear and bursitis. He stated in his report of 4 March 2008, that, on the balance of probabilities, the right hip joint problems were “related to her employment at Coles Supermarkets, particularly in the absence of other history of trauma or injury”;
(e)the Arbitrator did not adequately consider this evidence, and
(f)the weight of the medical evidence refutes the Arbitrator’s conclusion on this issue.
Coles submits:
(a)the mere absence of “degenerative underlying symptoms does not by any means on the lack of valid medical evidence imply there” was a compensable work related injury to the hip;
(b)the fact that the appellant has pathology in her hip does not infer liability to the respondent;
(c)the appellant has not satisfied sections 4 and 9A of the 1987 Act;
(d)there was sufficient evidence the Arbitrator took into account that could have caused the appellant’s symptoms, such as the trip to Poland and her activities there, and
(e)the Arbitrator was correct to find that the appellant’s hip symptoms may be a consequence of her lumbar spine disc problems.
In response, the appellant submits:
(a)her symptoms started well before her trip to Poland, and
(b)the opinions from Drs Smith and Potter for Coles are not reliable as they did not refer to the physical requirements of her duties
The appellant’s evidence is in three statements dated 7 August 2007, 3 April 2008 and 22 July 2008. In her first statement she said that she started to get mild pain in her groin at the end of 2005 (7 August 2007 statement, paragraph 43). It was initially suspected that it had been caused by a gynaecological problem and she sought treatment from her general practitioner, Dr Lukaszewicz. He excluded any gynaecological problems and he treated her for a bladder infection. That did not resolve her groin pain. She added that her neck, back, hips and knees were not painful when she was working on night shift, though she had a feeling of tiredness at the end of each shift, but was fully recovered by the next day (7 August 2007 statement, paragraph 48). She said she started to get low back and buttock pain on 23 January 2007. It started slow and small and got worse. Contradicting this statement, the appellant then said that the pain became a lot worse “just before Christmas Day” (7 August statement, paragraph 51). On that day she was holding a three litre bottle of milk when she “felt pain and waves of heat and cold throughout my body. Then it stopped.” (7 August 2007 statement, paragraph 52).
At paragraph 80 of her first statement, the appellant explained that when she said her groin was painful she meant that her hips were included and it was her understanding that there was damage to the inner bones of the hips. She added at paragraph 83 that she only found out about her injuries being work related when she had an MRI scan and when she was on night fill the groin pain was minor. She believed that the hard work of unloading pallets and lifting boxes caused her injuries. She then referred to “the critical point” being when she carried very heavy crates with milk in the cool room on 23 January 2007. Why that was the critical point is not explained. She complained that the repetitive sideways movement on the checkout made her symptomatic, but she did not indicate which symptoms she experienced. At paragraph 88 she stated that the contents of her statement were true and correct and (at paragraph 89) that she had no complaints regarding the manner in which the interview was conducted.
In her statement of 3 April 2008, the appellant expressly confirmed that her first statement was true and correct. The April 2008 statement set out the appellant’s extensive symptoms. She referred to having a painful click in her right hip on movement, but did not say when that click commenced.
The appellant changed her evidence in her statement of 22 July 2008. On this occasion, she stated that her previous assertion that she only experienced groin pain on night shift (see [26] and [27] above) was incorrect and she had in fact developed pain in her low back and groins at the end of 2005. By mid to late 2006, she had pain in her “groin, hips, both knees, [her] lower back and pain around the chest”, which she reported to Dr Lukaszewicz. At this point she noticed that the pain was more severe when she was performing her duties as a night packer. She found that the repetitive kneeling, squatting, bending, lifting, reaching and twisting put a severe strain on those body parts.
At the end of 2006, she claims to have complained to Gonul Kamas, Coles’ safety officer, that she was having “real problems with the demands” of her current job which were making her back, hips and knees very sore.
On 29 May 2007, the appellant complained of her symptoms to Mr Carr. He completed an Incident Report, in which the following entry appears:
“Iwona was working in the nightfill [sic] team as a packer until 31/12/06 (3.5 years). Iwona has since been working as a checkout person as of 1/01/07. There is no real date of when the incident has happened but Iwona has claimed that it has happened about 2 years ago & since then Iwona has had mild pain however since moving to checkouts the pain has worsened & Iwona has since had seeked [sic] medical advice which has been referred by family doctor to get a MRI. Today Iwona has come to me & told me she had been injured during the last 2 years. Iwona told me that she had been directed by her solicitor to collect a worker comp form.”
Under the section headed “Body Location of Injury On Person”, the following body parts are ‘checked’: lower back, elbow, wrist, hand, hip, knee.
The appellant attended on Dr Lukaszewicz on 22 November 2005 complaining of lower abdominal pain, low back discomfort, groin pain and symptoms of a urinary tract infection. She was given an antibiotic and paracetamol. Her back and groin pain persisted and she attended again in January 2006. She attended on 18 September 2006 and gave a history that she had been on holidays in Poland in August and was diagnosed with Fibrochondoma Colli Femoris Bilateralis. She complained of discomfort in her back, groin, hips, knees and around her chest. Plain x-rays and CT scans of her hips appeared to be normal. Dr Lukaszewicz diagnosed chronic hip pain due to bilateral trochanteric bursitis and gluteal enthesopathy. He referred her to Dr Podgorski.
Dr Podgorski examined the appellant on 28 February 2007. He took a history that she had developed back and leg pain three years earlier, her pains being worse with standing, bending and lifting. She complained of lower abdominal discomfort and groin discomfort associated with her back pain, “which suggested possible referred pain”. X-rays from Poland showed mild degenerative changes in the sacroiliac joints. X-rays of her hips were normal. Her hips joint moved well though did reproduce some groin pain at full flexion.
At review on 21 March 2007, Dr Podgorski noted a complaint of continuing pain around the right hip joint and a click on flexion of that joint on active raising of the leg, suggesting a true internal derangement of the hip joint.
At review on 11 April 2007, Dr Podgorski observed that the MRI scan of the right hip showed a significant cartilage tear in the acetabular labrum with mucoid degenerative within the tear. There was also associated trochanteric bursitis of both hips, more prominent on the right. The appellant denied any high impact injury or major physical trauma, except for repeated lifting, bending and packing at work with Coles. Dr Podgorski referred the appellant to Dr Gray, a Fellow of the Royal Australian College of Surgeons and Fellow of the Australian Orthopaedic Association.
Dr Gray examined the appellant on 14 May 2007. She presented with multiple joint problems, which had been present since coming to Australia and starting work in the retail industry. He recorded her complaints of back pain and pain into both groins. Walking or standing for greater than 15 minutes aggravated her hip pain. There was a slight click in her right hip when standing from the seated position, but no clunk and no true locking. She had a full range of movement of the hips but there was a painful click on rotation of the right hip, though Dr Gray could not feel such a click. He reviewed the MRI of the right hip and noted a small labral tear, which he doubted was clinically significant.
On 4 July 2007, Dr Podgorski noted the appellant complained on increasing neck pain with referred pain from the shoulder girdle and pain radiating to the left arm and hand.
Dealing with causation, Dr Podgorski stated that the right hip joint problem (acetabular cartilage tear) was probably related to the appellant’s employment at Coles, particularly in the absence of any history of trauma.
Dr Dixon, orthopaedic surgeon, examined the appellant for medico-legal purposes on 3 October 2007. In respect of the right hip, he concluded that she appeared to have a labral tear with some restriction of motion, but he did not say what caused that problem. In his report of 27 February 2009, he stated:
“This patient’s injuries to her cervical spine, thoracic spine, lumbar spine, right hip, left shoulder, left knee and right knee were caused by the nature and conditions of her employment with Coles Supermarkets and the patient’s employment was a substantial contributing factor to her injuries.
The injuries are consistent with the findings as noted in the MRI scans referred to in the body of the report, her medical history and examination.”
Coles conducted a factual investigation into the claim and has tendered several witness statements. It relies on statements from Chardi Samman, the ‘night fill captain’, Karen Mellas, the store support manager.
Mr Sammon was the appellant’s direct supervisor for five months immediately before she was moved to the checkout. He states that her duties were to stack shelves with stock from the storeroom. She “virtually always worked in the Health & Beauty aisle, stacking such items as baby foods, nappies, feminine products, shampoos and conditioners, soap, hand wash, toothpaste, skincare products.” He added that there was nothing that she would have been required to lift that would have weighed more than three or four kilograms. The appellant never complained to Mr Sammon about any injury or soreness as a result of her work.
Ms Mellas states that the appellant’s transfer to the checkout was not because of any injury, but was because of a demand for more checkout operators. She added that female staff were not required to lift anything heavy and usually stacked cosmetics, toilet rolls and such like. Male packers stack heavier items. She did not consider the appellant’s claim to be genuine.
Coles relies on medical evidence from Dr Smith, orthopaedic surgeon, and Dr Potter, rheumatologist. Dr Smith examined the appellant on 25 June 2007. In a report of that day he took a history that the appellant worked as a night filler. On examination of the hips, he noted there was a full range of flexion in both hips and a clunk in the right hip. He felt that such clunking with full flexion and then extension was not uncommon. It was something he had seen several times in the past, but he had never been able to work out an accurate cause for it. In respect of the hip MRI scan of 4 April 2007, he spoke to a radiologist who considered the “so-called labral tear as an incidental finding”. He felt that the reduction in hip extension suggested there was something wrong with the hips, but radiologically there was really nothing wrong. He did not think it “terribly likely that the minor anomaly in the hip is symptomatic”. He did not think there was any relationship between the appellant’s symptoms and her employment.
Dr Potter examined the appellant on 20 August 2008 and reported on 21 August 2008. He concluded that she had a “pain everywhere syndrome” and “abnormal illness behaviour”. He took a history that the appellant did not “realise it [her pain] could be related to work”. On examination, he found her to have full movement of the hips.
Having regard to the whole of the evidence, I am not satisfied that the appellant injured her right hip as a result of the nature and conditions of her employment with Coles. The appellant’s evidence is inconsistent, unimpressive and unconvincing. She made no link between her work and her groin pain when it first appeared in 2005. The change in her story between her first and third statement is particularly damaging. The suggestion that she only found out about her injuries being work related when she had an MRI scan is implausible and unlikely. An MRI is a diagnostic aid, not evidence about the cause of the condition revealed by the scan.
Her evidence that her neck, back, hips and knees were not painful when she was working on night shift also strongly militates against a finding that she injured her right hip as a result of the nature and conditions of her employment. Though she changed her evidence on this point in her third statement, I find this inconsistency significantly undermines the reliability of her evidence. That is especially so in circumstances where she twice confirmed the accuracy of her first statement. The unexplained contradiction in her 7 August 2007 statement (see [26] above) further undermines her evidence. Her evidence about “the critical point” in January 2007 (see [27] above) is also unpersuasive, as she did not explain what it was that happened on that occasion or how it affected her.
Having regard to these inconsistencies in the appellant’s case, I prefer the evidence of Ms Mellas and Mr Sammon as to the nature of her duties and when she reported her complaints.
Whilst I accept that the appellant has some evidence of pathology in her right hip, I do not accept that her employment with Coles caused or aggravated that pathology. Her history of the onset of groin pain is not suggestive of any work stress or trauma to her hip and I do not find Dr Podgorski’s evidence persuasive. Dr Gray’s doubt about the clinical significance of the MRI finding of a labral tear is consistent with Dr Smith’s evidence that the labral tear is an incidental finding. Dr Dixon made no comment about the cause of the right hip pain in his report of 3 October 2007, but merely noted that the appellant appeared to have a labral tear. He did, however, express an opinion as to the cause of the back and knee pain at page four of that report. In his report of 27 February 2009, Dr Dixon gave no explanation as to why he considered that all of the appellant’s injuries are work related and, without an explanation, I do not accept his opinion. Given the shortcomings I have identified in the appellant’s evidence, I prefer and accept Dr Smith’s evidence that there is no relationship between the hip symptoms and the appellant’s employment.
The Left Shoulder Claim
The Arbitrator was not satisfied that the appellant has a distinct condition of the left shoulder caused or aggravated by her employment with Coles (Reasons, paragraph 43), though he felt she may have referred pain into the left upper limb from her cervical spine. The appellant disagrees.
In summary, the appellant submits:
(a)Dr Dixon referred to shoulder brachialgia and residual sub-acromial bursitis;
(b)Dr Podgorski noted a positive impingement sign in the left shoulder;
(c)Dr Lukaszewicz recorded a history of left shoulder pain since November 2006 and again on 30 January and 24 April 2007;
(d)the MRI scan dated 18 December 2008 reveals tendinopathic change of the supraspinatous and the infraspinatus laterally, and a small effusion in the subacromial bursa. These findings support the diagnosis by Dr Dixon and Dr Podgorski that there is an injury of the left shoulder area with restricted range of movement, and
(e)it is apparent from the additional evidence and the history of symptoms that there is a soft tissue injury within the left shoulder caused by the nature and conditions of employment with Coles.
Coles submits:
(a)the appellant needs to demonstrate in accordance with sections 4 and 9A of the 1987 Act that her shoulder injury arose out of or was sustained in the course of her employment and that employment was a substantial contributing factor to her alleged injury, and
(b)the fact that there is pathology in the shoulder does not automatically infer liability to the respondent;
(c)the appellant has not satisfied sections 4 and 9A of the 1987 Act.
The evidence as to cause of the appellant’s left shoulder symptoms is unconvincing and I do not accept that the appellant injured her left shoulder as a result of her duties with Coles. She made no mention of shoulder symptoms in her 10-page statement of 7 August 2007, but did refer to her left arm feeling cold and painful in 2007. The Incident Report form dated 29 May 2007 made no mention of any shoulder symptoms. In her statement of 22 July 2008, the appellant stated that it was “very difficult to pin point exactly when her neck and shoulder symptoms began”, but added that it was even as early as 2006. She also claimed in that statement that she noticed “occasional soreness and pain in [her] neck and left shoulder” in around April 2007 and that it was only later, when the pain became continuous, that she told Dr Lukaszewicz about it. There is no evidence as to her activities at the time the left shoulder symptoms commenced.
Whilst Dr Lukaszewicz referred to left shoulder pain in his notes of 30 January 2007 and 24 April 2007, he took no history of when or how those symptoms commenced. He diagnosed the appellant to have left shoulder subacromial bursitis. He thought her history, examination, and investigations were consistent with injuries she sustained in the course of her employment. In the absence of some explanation of when and how the left shoulder symptoms commenced, his opinion lacks probative value.
Dr Podgorski did not get a history of left shoulder problems until 4 July 2007, some weeks after the appellant ceased work, but he took no history of when or how those symptoms started. He found the impingement sign in the left shoulder “specifically was unremarkable”. An ultrasound of the left shoulder was normal. At review on 5 September 2007, he recorded that the appellant complained of an increase in left shoulder pain. The cause of this increase in symptoms is unexplained. On this occasion, he noted a positive impingement sign and pain on all movements. An MRI scan of the left shoulder showed no abnormality. In view of the normal MRI scan, Dr Podgorski thought there was a likelihood that her left arm and shoulder girdle pain were emanating from the tender C6-7 and C7-T1 cervical disc problems.
The appellant relies on the additional evidence tendered on appeal in support of her argument that she has sustained an injury to her left shoulder as a result of her duties with Coles. Having regard to the whole of the evidence, I do not find the additional evidence persuasive. The presence of symptoms and minor pathology on radiological investigation does not mean that a person has sustained a compensable work injury. The correct reading of the latest MRI scan of the left shoulder reveals, in Dr Podgorski’s opinion, “trivial tendon problems”. He added that, though the appellant was sore on stressing the left supraspinatus area, “more of her pain is associated with paraesthesiae, tingling in both hands especially left, particularly down the ulnar border, and this is likely to emanate from the more significantly tender cervical spine between C5-C6, C6-C7 & C7-T1”. He thought the pain was “likely to be largely emanating from the problems at C5-C6 & C6-C7”. He repeated this view in his hand written physiotherapy referral of 16 February 2009 in which he noted the appellant’s persistent left upper limb pain from disc problems with referred pain and minor rotator cuff impingement. Other than linking the left upper limb symptoms to the neck problem, he expressed no opinion on the cause of the shoulder symptoms or pathology.
In his report of 3 October 2007, Dr Dixon made no comment on the cause of the left shoulder pain, but merely noted that the appellant appeared to have neck stiffness and shoulder bursitis. He did, however, at page four of that report, express an opinion as to the cause of the back and knee pain. In his report of 27 February 2009, Dr Dixon gave no explanation as to why he considered that all of the appellant’s injuries were work related and, without an explanation, I do not accept his opinion.
The Nature of the Injury
The Arbitrator regarded the appellant as having an underlying degenerative condition of the neck, the thoracic spine and the back (Reasons, paragraph 41) and found that her duties up to 31 December 2006 were causative of a continuing aggravation to those body parts (Reasons, paragraph 42). He also found that the appellant suffered an injury by way of aggravation of an underlying degenerative condition in both knees (Reasons, paragraph 52). The appellant disagrees.
The appellant submits that the medical evidence failed to establish a pre-existing condition or degenerative change in her spine or knees and has referred to several of the radiological reports to support her argument. Having carefully considered all of the medical evidence, though I will not repeat it here, I do not accept this submission.
Dealing with the cervical, thoracic and lumbar spines, the evidence is clear that the appellant has extensive degenerative changes in those parts of her body. The MRI scan of 13 March 2007 referred to “multilevel lumbar spondylotic changes, most severe at L4/5 and L5/S1 levels”. Consistent with that scan, Dr Smith noted that the changes present were consequent to genetic abnormality and subsequent degenerative disease. In respect of the cervical and thoracic spines, the scan refer to extensive disc bulges at several levels with central dilatation of the small diameter in the mid cervical spinal cord consistent with syringomyelia, and an area of syringomyelia between T3-T5 in the upper thoracic cervical cord. In the light of this evidence, and in the absence of any specific work incident that can be identified as responsible for any one lesion, it was appropriate to classify the injury as an aggravation of a disease.
In respect of the left knee, the MRI scan dated 23 May 2007 revealed a small Grade IV chondromalacia of the non-weight bearing articular surface of the lateral femoral condyle. Dr Smith considered that the changes were consistent with early arthritic change. The MRI scan of the right knee dated 6 September 2007, showed full thickness fibrillation in the anterior aspect of the lateral femoral articular cartilage with minor increased sub-chondral signal. Dr Potter considered the scan suggested osteophytic change. This evidence strongly supports the Arbitrator’s finding of an injury in the nature of an aggravation of an underlying degenerative condition. This conclusion is all the more compelling in the absence of any specific work incident or incidents that have caused the condition.
I agree with the Arbitrator’s conclusions.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; (2007) 5 DDCR 287 at [28]), I agree with the Arbitrator’s conclusions. In my view, the appeal had no merit and should not have been filed. The Arbitrator’s orders and findings are confirmed.
DECISION
The Arbitrator’s determination of 1 December 2008 is confirmed.
COSTS
Each party is to pay her or its own costs of the appeal.
Bill Roche
Deputy President
1 April 2009
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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