Robinson v the Workers' Compensation Regulator
[2018] QIRC 43
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- Unreported Judgment
- Robinson v the Workers' Compensation Regulator[2018] QIRC 43
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Robinson v the Workers' Compensation Regulator[2018] QIRC 43
Robinson v the Workers' Compensation Regulator[2018] QIRC 43
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Robinson v the Workers' Compensation Regulator [2018] QIRC 043 |
PARTIES: | Robinson, Tracy Leanne (Appellant) v the Workers' Compensation Regulator (Respondent) |
CASE NO: | WC/2017/29 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 3 April 2018 |
HEARING DATES: | 19, 20 and 21 February 2018 |
MEMBERS: | Industrial Commissioner Fisher |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - where accepted left wrist injury - where right shoulder injury is claimed to be the result of overusing that shoulder because of favouring left wrist - whether impact of the wrist injury is a significant contributing factor to the development of right shoulder injury - where on suitable duties plan - whether employment is the significant contributing factor to injury - where competing expert opinions re cause of injury - where medical literature considered |
LEGISLATION: CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 Mater Misericordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144 Theresa Helen Ward AND Q‑COMP (C/2011/39) - Decision Ramsay v Watson (1961) 108 CLR 642 Coles Supermarkets Australia Pty Ltd vBlackwood [2015] QIRC 011 Davidson v Blackwood [2014] ICQ 008 |
APPEARANCES: | Mr T. Nielsen, Counsel instructed by Maurice Blackburn Lawyers for the Appellant. Mr S. Gray, Counsel directly instructed by the Workers' Compensation Regulator for the Respondent. |
Decision
- [1]Tracy Robinson received workers' compensation benefits for a left wrist injury and a secondary psychiatric injury. She requested her left wrist injury claim be re-opened on the grounds of a right shoulder injury.[1] Ms Robinson contends the shoulder injury resulted from overuse because she was favouring her left wrist. The claim was rejected and Ms Robinson appeals against that decision.
- [2]The parties accept, as does the Commission, that Ms Robinson is a worker within the meaning of the Workers' Compensation and Rehabilitation Act 2003. She bears the onus of proof on the balance of probabilities to establish that the right shoulder injury arose out of or in the course of her employment and that employment was the significant contributing factor to the injury. The parties agree that the real issue in contention is whether or not the impact of the wrist injury is a significant contributing factor to the development of her claimed right shoulder injury.
The Lay Evidence
The Appellant's Witnesses
- [3]Ms Robinson: Ms Robinson injured her left wrist while working as an Assistant in Nursing in the Rehabilitation Ward of the Maryborough Base Hospital in May 2015. She said the injury was diagnosed as a fracture to the scaphoid bone in the left wrist and it has never completely healed. As a result she tends to carry her left wrist as if it were in a sling and relies on her right hand to perform tasks. It was her evidence that she performed all of her work duties when she returned to work one-handed as it was a habit she acquired.[2] Ms Robinson is right hand dominant.
- [4]Ms Robinson's treating specialist, Dr Andrews, certified her to be able to return to work on suitable duties in June 2015, however, as none were available, Ms Robinson did not return then. She eventually returned to work on a graduated return to work program (the Suitable Duties Program[3]) commencing 11 November 2015. The duties she was to perform had been discussed with her prior to her return to work. Ms Robinson described her left wrist at the time of her return as being "hard to move" and it was "puffy and swollen".[4]
- [5]The SDP was signed by Ms Robinson, Kathleen Zwarts, the acting Nurse Unit Manager for the Rehabilitation Ward and Sharon Gaskin, the Workplace Rehabilitation and Return to Work Coordinator for the Wide Bay Hospital and Health Service South. Part of the SDP required a Workplace Rehabilitation Progress Review Form to be completed periodically by the worker and the Line Manager/Supervisor. The evidence shows that Ms Zwarts completed the Line Manager/Supervisor section. The evidence is less clear as to whether Ms Robinson personally completed each Worker Evaluation section, however, she signed the Workplace Rehabilitation Progress Review Forms.
- [6]Ms Robinson's evidence addressed both the duties she performed on the SDP and her home duties.
- [7]The SDP shows the hours of work increasing over the period of the program from four hours per day two days a week to six hours per day two days a week. Before her injury, Ms Robinson was employed for an eight hour shift and worked 40 hours per fortnight. Ms Robinson agreed under cross-examination that she returned to work as a supernumerary, to help other staff.[5]
- [8]The SDP lists the duties which were to be performed with nominated restrictions. The duties were confined to the Rehabilitation Ward and were restocking of continence aids, tidy the bed sides, stores; set up and provide distant supervision for patients in showers; observations; supervise meals in dining room; filing and making up administration packs and other tasks as directed by the Nurse Unit Manager with restrictions. The nominated restrictions were 10kg lifting limit; no hoist use; no two person assist transfers and lifting; no slideboard transfers; no lifting boxes in stores and no push/pull patients in wheelchairs or shower chairs.
- [9]Ms Robinson's evidence is that when she commenced her graduated return to work, she was doing paperwork, audits and filing.[6] For the first period of 9 to 13 November 2015, where the worker is invited to identify any problematic duties under the heading of "Worker Evaluation" on the Workplace Rehabilitation Progress Review Form, it is recorded that "completing duties as per list. No problems encountered". Under cross‑examination Ms Robinson accepted she might have completed that section. Ms Zwarts noted in the Line Manager/Supervisor section that Ms Robinson continues to have pain in the left wrist and swelling was obvious. Ms Zwarts also noted her advice to Ms Robinson that she seek a further appointment with the hand specialist.
- [10]Ms Robinson attended Dr Andrews on 18 November and returned to work the following day. The Workplace Rehabilitation Progress Review Form for the period 16 to 20 November records under the heading "Worker Evaluation" that Ms Robinson had nil concerns. Ms Robinson disagreed in oral evidence that she had no concerns and said she mentioned to Ms Zwarts that she had a lot of pain at the time.
- [11]In the Line Manager/Supervisor section of the Form, Ms Zwarts recorded that Ms Robinson worked on the 19 November "experience (sic) pain with slight increase in pain due to more activity". She also noted that Ms Robinson "did not take analgesics. Did not require topical treatment. States will take Nurofen when home. To date has not supervised shower." In oral evidence Ms Robinson agreed she had not supervised showers at that time but did not accept as true the comments recorded about pain relief. Ms Robinson said she was using pain relief, heat packs and a rub on her hand at home.[7]
- [12]Ms Robinson attended on Dr Andrews for the last time on 1 December. She told Dr Andrews she was getting a lot of pain in her right shoulder because she was not using her left hand. He was dismissive of her complaint.
- [13]On the Workplace Rehabilitation Progress Review Form for the period 23 November to 4 December 2015, which was signed on 18 December, Ms Zwarts recorded that Ms Robinson was "able to complete identified duties. Tracy is concerned re her ability to progress her duties to showering for fear of further injury or perhaps compromising patient safety." Ms Robinson agreed she was performing her suitable duties at that time but "with a lot of pain doing so" despite the "nil concerns" entry in the Worker Evaluation section.
- [14]The next Workplace Rehabilitation Progress Review Form for the period 7 to 15 December 2015 records that Ms Robinson was able to do her duties with no concerns. Again, Ms Robinson disagreed with this assessment in evidence as well as with Ms Zwarts' comments on the Form that "Whilst completing duties nil pain, nil swelling." Ms Robinson acknowledged that she had informed Ms Zwarts, as was recorded on the Form, of her increased pain and swelling when she finished her shift and that she uses nurofen at home. She denied saying she used a cold pack at home, rather it was a heat pack.
- [15]The Workplace Rehabilitation Progress Review Form for the period 4 to 8 January 2016 does not show that Ms Robinson identified any problematic duties, however in oral evidence Ms Robinson said she assisted "heavy patients" with showering and it had been "a heavy workload."[8] Ms Zwarts' comments of 5 January are that Ms Robinson "completed 3 assisted showers - states using predominantly R hand to avoid using L hand. Thinks increased pressure on R shoulder - visiting GP this afternoon."
- [16]Ms Robinson said in evidence this was not the first time she had advised Ms Zwarts of her pain in her right shoulder and had mentioned this to her towards the end of November.[9] She relieved her pain at work with nurofen and panadol and applied hot packs to her shoulder at work. Ms Robinson said Ms Zwarts had advised her to use hot packs and had seen her with them.[10]
- [17]Ms Robinson gave evidence about the duties she actually performed while on the return to work program. These included the duties on the SDP and others which she was directed to perform. One of the duties on the SDP was the restocking of continence aids. Ms Robinson said that in addition to restocking these aids, she was required to restock gloves and other medical items, such as cotton gowns, needed for the ward. The items were taken from shelves, some of which were overhead, in the main storeroom. Stock was also situated on roll shelves in the main storeroom, which had to be moved for access. Ms Robinson agreed she had access to a stool to reach the higher shelves. After selecting the stock, Ms Robinson placed the items on a stainless steel trolley with two shelves which she pushed one-handed through the ward. Gloves were replaced in every room, sink and a cupboard. Some items were placed on shelves above Ms Robinson's shoulder height.[11]
- [18]The other duties performed included using towels to wipe the bathroom floor after patients had showered then putting the towels in the laundry hamper, as well as lifting and carrying trays in the dining room. Initially she only carried breakfast trays but as her shift length increased she also carried lunch trays which were heavier.[12] Ms Robinson said she was also required to make between five and 16 beds per shift, depending on the day,[13] usually by herself.[14] This commenced approximately one week after she returned to work.[15] On one shift, with a registered nurse, she was required to put stickers on bedrails of old steel framed beds to identify that the rails should not be lifted. Ms Robinson said the task involved lifting the rail of approximately 50 beds located throughout the Hospital.
Home Duties
- [19]Ms Robinson said she made lunches for her three children on week days and drove the younger two to school. She would pick them up and drive them to and from after school extra-curricular activities as well as doing the grocery shopping. She estimated she would spend five hours per week driving. Ms Robinson had an automatic car and used her right hand to put the car in gear and to release the handbrake.
- [20]She made all the beds, vacuumed and mopped the floors for one hour each per week as well as sweeping and dusting the house. Her other home duties included cleaning the bathroom twice per week for 30 minutes each time and cleaning the toilet three to four times per week. Ms Robinson also washed the clothes three to four times week however she was assisted by her family 75 per cent of the time to hang out the washing. She folded the washing assisted by her family. Other household tasks included ironing, feeding her domestic animals, cooking dinner (assisted 50 per cent of the time by her family), packing the dishwasher, again mostly assisted by her family, and wiping benches. She estimated she took the rubbish out to the wheelie bin 10 per cent of the time.
- [21]Under cross-examination Ms Robinson was taken through the duties she performed. She indicated the way she performed most of her home duties did not change after the left wrist injury and acknowledged the assistance received from family members in respect of certain tasks.
- [22]Ms Robinson described her right shoulder pain as:
"… it's like sharp pains going up your shoulder, up here, and down your arm and your shoulder just goes limp. It’s just very painful. Just, yeah, just, then you can't move your arm too much. It's just - it's gets very painful."[16]
- [23]Michael Mahony: Mr Mahony is Ms Robinson's partner of more than 20 years. He confirmed that after Ms Robinson injured her left wrist at work she used her right hand. She carried her left arm in front of her as it was sore.
- [24]When Ms Robinson returned to work on the SDP her left wrist "still wasn't right". A couple of weeks later she complained her right shoulder was starting to become sore and was unable to lift with her left hand.
- [25]Mr Mahony explained that Ms Robinson was the main housekeeper, responsible for washing, cooking, and general housework. As Mr Mahony worked shift work he was not often home to see whether or how the household duties were divided between Ms Robinson and the children.
The Regulator's Witnesses
- [26]Sharon Gaskin: Ms Gaskin's role is administrative, involving record keeping and liaison with all parties involved in an injured worker's case. Ms Gaskin was responsible for the preparation of the SDP. Ms Gaskin said it was not part of her role to observe Ms Robinson in the performance of her light duties and Ms Zwarts was responsible for implementing the SDP.
- [27]Kathleen Zwarts: Ms Zwarts said the SDP was developed in consultation with the Facility Manager and Director of Nursing.
- [28]Ms Zwarts did not observe Ms Robinson holding her left arm as if in a sling. Had she noticed that, she would have realised Ms Robinson was unable to perform the duties and would have had her return to the doctor or return to the work coordinator.
- [29]Ms Zwarts stated that when the SDP was formulated it was decided Ms Robinson would not be required to make beds. She explained that the Rehabilitation Ward had an Assistant in Nursing whose primary job in the morning was to get patients out of bed then make their beds.[17] Although Ms Zwarts initially said she would not have directed Ms Robinson over time to make beds, when pressed under cross-examination, she could not recall whether she had done so.
- [30]In respect to showering of patients Ms Robinson only had to undertake distant supervision until 5 January 2016. Ms Zwarts acknowledged that this duty did not normally require drying off the floor, however, where this was required most people used their foot as the towel was left on the floor.[18]
- [31]The task of restocking continence aids involved taking the aids out of the main store and putting them in the cupboard of the Rehabilitation Ward. Ms Robinson would have performed this task most days. The reference to the stores on the SDP was the main medical storeroom where Ms Robinson would be required to take the required stores from the storeroom or the cupboard in the middle of the ward, place them on the trolley and then wheel the trolley into the ward for restocking. Ms Zwarts agreed under cross‑examination that the storeroom housed a compactus which required Ms Robinson to move shelves. In addition, Ms Robinson was required to reach stores at or above head height. She had access to a step stool approximately 30 cm high to assist her to reach the stores.
- [32]Ms Zwarts was taken to her note made on 5 January of Ms Robinson's complaint of increased pressure on her right shoulder. She said Ms Robinson had not previously complained about having right shoulder problems. Had she done so, she would have been required to make a note in the Line Manager's section of the Form.[19]
- [33]During cross-examination Ms Zwarts denied there was a gradual increase in the difficulty of the tasks Ms Robinson was asked to perform.
- [34]Ms Zwarts agreed in cross-examination that she did not observe most of the work Ms Robinson was doing as she may have been in the office or off the floor at meetings. She could not recall seeing Ms Robinson with a heat pack on her shoulder in November or December 2015.
The Medical Evidence
- [35]Evidence was given by the following medical practitioners:
For Ms Robinson
Dr Riita Partanen, treating General Practitioner;
Dr Steven Frederiksen, treating Orthopaedic Surgeon; and
Dr Christopher Bell, Orthopaedic Surgeon, who examined Ms Robinson at the request of her solicitors.
For the Regulator
Dr Robert Ivers, Orthopaedic Surgeon, who examined Ms Robinson at the request of WorkCover Queensland; and
Dr Steve Andrews, treating Orthopaedic Surgeon for the left wrist injury.
- [36]Dr Partanen: Ms Robinson first consulted Dr Partanen on 5 January 2016 and was referred for an ultrasound of the right shoulder. The findings of that ultrasound performed on 8 January were:
"The long head of biceps tendon is intact. The rotator cuff is intact. There are some enthesocapthic changes within the suprasinatus tendon adjacent to its insertion. The subacromial bursa is thickened however there was no impingement on dynamic assessment. Degenerative changes are present in the AC joint."[20]
- [37]On 23 February 2016, Dr Partanen issued a worker's compensation medical certificate which included the diagnoses of aggravation of the left wrist injury and secondary right shoulder tendonitis due to overuse and reduced use of left arm. Dr Partanen based her opinion that the right shoulder condition was work-related on Ms Robinson's report that her left wrist continued to be painful, she was avoiding using it to perform her duties and preferred to use her right arm to her left.
- [38]Having read the reports of Drs Bell and Ivers, Dr Partanen maintained her opinion that the right shoulder condition was work-related. Under cross-examination, Dr Partanen agreed she would defer to the opinions expressed by orthopaedic surgeons.
- [39]Dr Frederiksen: Dr Frederiksen is an Orthopaedic Surgeon specialising in hand and upper limb surgery. He reviewed Ms Robinson on one occasion on 16 May 2016 for both the left wrist and right shoulder injuries. His evidence was given by way of various reports, his medical records of Ms Robinson and orally.
- [40]In his report to WorkCover dated 17 June 2016, Dr Frederiksen noted the onset of right shoulder symptoms occurred in January 2016. He diagnosed right shoulder impingement and bursitis. Dr Frederiksen explained the relationship of the right shoulder injury to the left wrist injury as follows:
"Ms Robinson remains very symptomatic at the left wrist. Consciously or subconsciously she uses that left wrist less and placed an increase in load on the right upper limb. It is reasonable to attribute her right shoulder condition to an increase in use."
- [41]Dr Frederiksen also noted that Ms Robinson has an anxiety component to her condition which impacts on her recovery and physical wellbeing.
- [42]In examination in chief, Dr Frederiksen was read a list of duties that Ms Robinson performed at work. He was then asked whether performing those duties one-handed was consistent with his opinions expressed in his reports. He answered:
"Any - any repetitive overhead or activities at shoulder height would predispose to risk of impingement and any lifting activities away from the body in a flexion type manoeuvre at the shoulder, in my opinion, would provide risk to that impingement and bursitis phenomena. Anything in a - close to the body or at waist height would be less so but in those duties I think there are some of those duties that would predispose to that risk."[21]
- [43]He was then read a list of home duties and asked a similar question. He replied:
"Not all of them but certainly those that involve that flexion manoeuvre so lifting away from the body or anything at shoulder or overhead, certainly, and there are some of those that would stand out there particularly the cleaning activities or any reaching activity, certainly."[22]
- [44]Under cross-examination, Dr Frederiksen confirmed his opinion that repetitive overhead activities or activities at shoulder height or lifting away from the body would predispose the shoulder to impingement and bursitis. He was unable to indicate how frequent the repetition had to be to cause the impingement or bursitis. He noted the evidence suggesting that with increasing age from beyond 50 and then 70 and 80, the rates of impingement and bursitis are higher.
- [45]Dr Bell: Dr Bell is the Director of Orthopaedics at the QE11 Hospital and is subspecialty trained in shoulder and knee surgery. He also provides medico-legal reports and examined Ms Robinson for this purpose on 5 December 2017. His report is dated 10 January 2018.
- [46]His report sets out the history provided by Ms Robinson. Dr Bell noted that the insidious onset of right shoulder pain coincided with Ms Robinson's return to work in November 2016. He also noted that she had not had any previous injuries to the right shoulder.
- [47]Dr Bell's opinion as expressed in his report is:
"In conclusion Ms Robinson is suffering from signs and symptoms consistent with right shoulder subacromial impingement and bursitis. The onset of these symptoms has coincided with return to work with no question that the right upper limb was being favoured due to significant ongoing pain due to the left wrist injury."
- [48]The Appellant's Counsel adopted the same approach to questioning Dr Bell as he did with Dr Frederiksen in respect of Ms Robinson's work and home duties. In response to the list of work duties, Dr Bell said:
"So any of those tasks that you mentioned, performed in a repetitive nature, as it sounds like they were, would be consistent with contributing or causing Ms Robinson’s shoulder condition, particularly the activities involving stock on high shelves, is [indistinct] strong correlation out of those tasks with the shoulder condition Ms Robinson has."[23]
- [49]And, in respect of the home duties, he replied:
"All those activities you mentioned - or the majority of them, if performed in a repetitive nature, would also be associated with the development of shoulder symptoms, as Ms Robinson suffers."[24]
- [50]Dr Bell was cross-examined about what he meant by the "repetitive nature of tasks." He said:
"I would say with Ms Robinson’s case, she would be manipulating stuff - stock off shelves multiple times a day and if she was working a significant number of hours per week, that would certainly qualify as repetitive tasks. If she was getting someone once or twice per day or, say, five minutes or less, that would clearly not be a repetitive task.
All right. So you mentioned a significant number of hours per week; what do you mean - what's 'significant'? --- Once again, that's - there's a spectrum there. So, you know, 40 to 50 hours per week is obviously significant and I would say eight hours per week would be less significant and - and then it's a spectrum in between those two.
All right. So a return to work at four hours a day for two days a week, as you've just said, that would be unlikely to cause a problem in the right shoulder? --- In and of itself, if that was the only activity she was doing with her shoulder, then that would be unlikely to cause her shoulder symptoms. Yep."[25]
- [51]Dr Bell agreed he would need to know the frequency that Ms Robinson was performing tasks. Weight was not correlated to her shoulder disorder.
- [52]Dr Bell was asked about overhead work. He explained the correlation with overhead activity and her shoulder disorder specifies 50 degrees[26] of elevation but there is a less strong correlation with the repetitive nature when it comes to working in an elevated position. Working in an elevated position, in and of itself, is a contributing factor to her condition and needs to be performed in a much less repetitive way, in order to be correlated with her shoulder dysfunction. When asked to define "repetitive" in this context, Dr Bell said that in his opinion, shoulder impingement could develop if work was performed in an overhead manner for 20 to 30 minutes, two to three times per week.[27] In answer to a question from the Commission, Dr Bell said that amount of time could be continuous or intermittent.
- [53]Although Dr Bell accepted that people who are right hand dominant will use their right limb more, he said the literature does not show a clear correlation between developing subacromial impingement and bursitis and the dominant arm.[28]
- [54]Dr Ivers: Dr Ivers was a general Orthopaedic Surgeon for most of 30 years he has been in practice. He has been at Metro South Hospital and Health Service for two years specialising in the upper limb. Dr Ivers undertakes assessments for medico-legal reasons for upper and lower limbs as well as back conditions. He provided an independent medico-legal report to WorkCover dated 2 June 2016 and, on its request, provided clarification emails in July.
- [55]In his report, Dr Ivers records that Ms Robinson reported that "she started developing pain [in] the region of the right shoulder in January 2015. She does not recall an original injury to the shoulder, though states that the shoulder pain came on with 'overuse' of the right upper limb." Dr Ivers noted that Ms Robinson had denied any previous problems with the right shoulder. She had "probable rotator cuff tendonitis of the right shoulder, not related to the work injury."
- [56]Dr Ivers was "under the impression that Ms Robinson demonstrated abnormal pain behaviour today. She appears to have developed a 'fear avoidance' attitude and demonstrated suboptimal effort during the clinical examination, particularly of the shoulders."
- [57]On the question of the relationship of the left wrist injury to the right shoulder injury, he opined:
"For your purposes, I am of the opinion that the effects of the work-related injury to the left wrist have ceased and that the left wrist injury has reached a stable and stationary state. I do not consider that the right shoulder condition is related to the left wrist injury."
- [58]In his oral evidence in chief, Dr Ivers said that after taking the history of the wrist and shoulder injuries he concluded that Ms Robinson may have an injury to the right shoulder in the form of tendonitis but that it was constitutional. The reasons for concluding that it was constitutional were two-fold. In essence, these reasons concerned degenerative changes in the tendon and bursa and the physical effects of age on the shoulder.[29]
- [59]He explained that any significant overhead activity e.g., swimming or household activities such as repetitive hanging out washing, can precipitate irritation of the tendon as it passes under the arch of the bone. Where the arms are up in the air the bursa can become compressed under the subacromial space.[30] When asked to define "significant", Dr Ivers said that he did not believe that it has ever been published as to exactly how many repetitions are required or over what period of time it is required to cause bursitis in a normal tendon.
- [60]Dr Andrews: Dr Andrews is an Orthopaedic Surgeon who has specialised in upper limb surgery for 17 years. Dr Andrews treated Ms Robinson for her left wrist injury. His evidence covered not only that injury but the right shoulder injury even though he had not examined it. He explained he was asked to provide an opinion on whether it was plausible the shoulder injury was caused by overuse of the other side.
- [61]Dr Andrews first saw Ms Robinson on 30 June 2015. His report to WorkCover of 1 July 2015 noted that a number of pathologies for the injury had been proposed but investigations failed to show any and she had been in plaster for six weeks. After examination, he referred her for a MRI scan to determine the cause of the left wrist injury. The results of the MRI showed some swelling and he concluded that she had a mild sprain. He recommended she remove the splint and begin to mobilise the wrist. She was to continue her therapy and gradually increase her activity. He suggested a graduated return to work.
- [62]Dr Andrews saw Ms Robinson again in August and October 2015. Ms Robinson had not returned to work as no light duties were available at her workplace. He maintained his opinion that Ms Robinson was fit for a graduated return to work. He recommended a gradual increase in duties with a lift limit of 10 kilograms over the period 8 October to 8 December 2015. Dr Andrews considered she would be fit for normal duties on 9 December 2015.
- [63]Ms Robinson returned to see Dr Andrews on 18 November 2015. In his report to WorkCover dated 1 December, he advised that Ms Robinson had returned to work at the Maryborough Base Hospital but reported significant ongoing symptoms in her wrist. Another MRI was performed but nothing was revealed to explain her ongoing symptoms. The results showed the previous dorsal oedema following her injury had subsided which indicated the sprain had healed. He recommended a gradual return to work because she had been away from work for a long time and she was complaining of pain. However, there was no identifiable cause of the ongoing pain.
- [64]When asked about Ms Robinson's report of swelling to her wrist on 19 December while on the graduated return to work program, Dr Andrews considered it was unlikely to be anything significant. Further, he opined that the major cause of swelling is lack of use.[31]
- [65]In respect of the right shoulder injury, Dr Andrews had been provided with the reports of Drs Ivers, Bell and Frederiksen. He agreed with the opinion of Dr Ivers. Dr Andrews considered it was not plausible that a patient on light duties would develop a contralateral injury because she was not doing any duties excessively and the types of duties she was performing were not even vaguely strenuous or ones that could plausibly cause a shoulder injury.[32] He said that bursitis and impingement usually occur as a result of a combination of factors including genetics, the morphology of the shoulder, age and it can be aggravated by repetitive work with the arm away from the body.[33]
- [66]Under cross-examination, Dr Andrews was asked about the duties Ms Robinson was performing on return to work. He said he had seen the list on the return to work program and considered them to be very light. He was then taken to other duties Ms Robinson said she had performed such as restocking shelves which involved lifting to high shelves to take items down, making beds and handling trays in the dining room. Dr Andrews said those duties were significantly lighter than she would normally do with that shoulder. He said:
"Even though she may be doing slightly more of them than if she had two arms working, it's still less in volume and less in strain than she would normally do in a normal day… So to say that it has aggravated her by doing less than she normally does, even one-handed with no assistance from the other hand, is just not plausible."[34]
Consideration
- [67]Whether the employment is the significant contributing factor to the injury is a question of mixed law and fact to be determined by the Commission.[35] In undertaking the task, the Commission may be assisted by the medical evidence.[36] However, in this matter, there are competing expert opinions about the cause of the injury. In Coles Supermarkets Australia Pty Ltd v Blackwood, Neate C set out the following propositions drawn from judicial authority to assist in the resolution of conflict of opinion between expert medical witnesses:
" … [w]here, as in this case, there is a conflict of opinions between expert medical witnesses the following propositions drawn from judicial authorities apply:
- (a)the tribunal of fact can be assisted by expert medical opinion evidence, but must weigh and determine the probabilities as to the cause of an ailment or injury having regard to the whole of the evidence;
- (b)the tribunal's duty is to find ultimate facts and, so far as it is reasonably possible to do so, to look not merely at the expertise of the expert witness, but to examine the substance of the opinion expressed and (where experts differ) to apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted;
- (c)only when medical science denies that there is a connection between, for example, certain events and a person's death can a judge not act as if there were a connection; but if medical science is prepared to say that it is a possible view, then the judge after examining the lay evidence can decide that it is probable;
- (d)the finding could be described as one based on the credibility of expert witnesses, having regard to such things as whether the witnesses display signs of partisanship in the witness box or lack objectivity, and whether they make proper concessions to the viewpoint of the other side;
- (e)distinctions may be drawn on the basis of demeanour (a limited ground where experts are under consideration); qualifications, impressiveness and cogency of reasoning and exposition of reasoning; preparation for, and application to, the problem in hand; and the extent to which the witness had a correct grasp of basic, objective facts relevant to the problem; and
- (f)if it is open to the tribunal to prefer one body of evidence to the other on grounds fairly discerned, the tribunal should express its reasoned preference."[37](References omitted)
- [68]Ms Robinson said at the end of November 2015 she reported right shoulder pain to Ms Zwarts who she believed had seen her wearing a heat pack on her shoulder. Ms Zwarts had no recollection of the heat pack and her first record of Ms Robinson's shoulder concerns was on 5 January 2016.
- [69]Ms Robinson also said she reported right shoulder pain to Dr Andrews at the consultation of 1 December 2015. Dr Andrews said that although she may have done, he had no recollection of it. Ms Robinson was attending on him for a left wrist injury which was the subject of the WorkCover claim and he was not permitted to review the shoulder injury as it did not form part of the claim.
- [70]Mr Mahony said Ms Robinson complained of right shoulder pain a few weeks after returning to work but a more precise time frame was not elicited in evidence.
- [71]Dr Bell records the onset of shoulder symptoms in November 2016 whereas the history Ms Robinson gave to Drs Frederiksen and Ivers is that symptoms occurred in January 2016. Ms Robinson attended on the latter two doctors in mid-2016 and her examination by Dr Bell occurred in December. Ms Robinson's first consultation with Dr Partanen was on 5 January, the day she reported her shoulder pain to Ms Zwarts.
- [72]I consider Ms Zwarts was diligent about recording on the Workplace Rehabilitation Progress Review Form any pain and difficulties reported by Ms Robinson. Ms Zwarts recommended that she seek medical review when problems with the left wrist were first reported and I consider she would have given similar advice when a report of shoulder pain was first made. The first record made by Ms Zwarts on the Workplace Rehabilitation Progress Review Form was on 5 January 2016.
- [73]Given this, the date of consultation with Dr Partanen and the dates given to the doctors who saw her in mid-2016, I conclude the onset of right shoulder symptoms occurred in January 2016.
- [74]Drs Frederiksen and Bell agreed on a diagnosis of right shoulder impingement and bursitis. Dr Ivers diagnosed probable rotator cuff tendonitis of the right shoulder. On this point I accept the evidence of Dr Bell that these conditions are essentially the same.[38] Dr Andrews was not asked to make a diagnosis.
- [75]In his report of June 2016 to WorkCover, Dr Ivers expressed the opinion that "the published Orthopaedic literature does not support the concept that overuse of the opposite limb to an injured limb can cause pathology." This opinion provoked debate amongst the medical specialists.
- [76]Medical literature that had been considered or referred to by the specialists was tendered in evidence.[39] Particular reliance was placed by Counsel on Chapter 38 "Evaluating Causation for Favoring for the Opposite Limb" from the second edition of the "AMA[40] Guides to the Evaluation of Disease and Injury Causation." The introduction to the Chapter is as follows:
"The assumption that injury to 1 limb (upper or lower) can result in an overuse condition in the opposite limb is widespread but unproved. Laypeople and some physicians believe that pain or impairment in 1 limb can stress the other and produce symptoms in the uninjured limb. This belief has led to the concept termed favoring. The impact of these speculative concepts is pervasive in spite of quality scientific investigations suggesting otherwise."
- [77]Section 1 of the Chapter is devoted to evaluating causation for the opposite upper limb and includes the shoulder. The authors note that temporal sequence does not prove causation but temporal proximity or disparity is only one of nine criteria for causation that should be scientifically established.[41] The authors state, "[c]ausation analysis must be based on both scientific evidence and the facts of the individual case."[42] Counsel spent some time examining the medical specialists, except Dr Frederiksen, on this part of the Guides.
- [78]The authors then proceed to set out three criteria which must all be met to establish that occupational exposure and an effect are aetiologically associated with a reasonable degree of probability or certainty. It is unnecessary to recite these criteria here.
- [79]Dr Ivers explained the medical literature about causation of contralateral injuries is not the best level of science available. Although the Commission is not considering the same injury to opposite limbs, the authors of the Chapter in the AMA Guides make clear that a case must be subject to careful analysis before a contralateral injury is accepted as work related. This approach is to be taken in the context of the onus of proof resting with the Appellant.
- [80]The Commission accepts that there was a temporal proximity or sequence between Ms Robinson's return to work and the onset of right shoulder symptoms. However, that is insufficient. In making its finding on the matter in issue, the Commission must analyse what Ms Robinson was actually doing and consider the expert opinions.
- [81]I turn firstly to a consideration of the evidence about the duties performed by Ms Robinson both at home and at work. The Appellant submits that the evidence suggests the domestic duties remained essentially unchanged between May 2015 and January 2016. The duties during the return to work program were the cause (either directly or on the basis that they were the "straw that broke the camel's back"). The Appellant further submits that the duties allegedly causing the overuse were all of the domestic and work duties identified in the evidence of Ms Robinson.
- [82]The evidence about the domestic duties is that many remained unchanged during the relevant period. Importantly, however, the evidence shows that Ms Robinson's involvement in hanging out the washing and taking out the rubbish reduced significantly and she received assistance from her family in respect of these and other domestic tasks. The reduction in hanging out the washing is important because that activity involves working overhead. The extent of overhead work was considered by the specialists to be relevant to the development of Ms Robinson's shoulder condition.
- [83]The duties performed on the SDP were deliberately lighter than those performed before Ms Robinson was injured. She gave evidence that some duties required overhead work such as taking stock down from high shelves (with the aid of a step stool) and placing stock on high shelves. The evidence suggests that the stock was well within the weight limits specified by Dr Andrews. There is a paucity of evidence about the frequency or the extent, if any, of the repetition with which this overhead work was performed. Again, this becomes relevant when the medical evidence is considered.
- [84]I accept that on occasion the duties went beyond those listed on the SDP and included making beds, lifting and carrying trays and on one occasion the task of placing stickers on bed rails. Ms Robinson's evidence that she performed all tasks one-handed is simply not plausible. It would be nigh on impossible to make beds in the manner she explained in her evidence, i.e., she was required to lift the mattress and tuck in sheets with hospital corners.[43] I hold a similar view about her evidence concerning lifting and carrying trays. I consider that Ms Robinson understated the use of her left limb, although I am prepared to accept that she used it less than she did before the injury.
- [85]The SDP duties were performed for fewer hours than she worked pre-injury. Ms Robinson worked for four hours a day, two days a week, increasing to five hours per day from 23 November 2015, according to the Workplace Rehabilitation Progress Review Forms. The first Workplace Rehabilitation Progress Review Form for 2016, for the period 4 to 8 January, shows Ms Robinson's hours as five per day. The decreased hours she was working on the SDP meant that the use of Ms Robinson's right limb at work was reduced when compared with her normal roster as explained by Dr Andrews. I accept however that Ms Robinson preferred to use her right limb where possible.
- [86]Disagreement exists between the medical specialists in this case as to whether the right shoulder injury was caused by overuse as a result of the injury to the left wrist. I do not rely on Dr Partanen's opinion as she agreed she would defer to a specialist on this matter. With respect to the medical specialists, both Dr Frederiksen and Dr Bell agree that Ms Robinson's injury could be caused in that way and the duties she was performing both at home and at work can give rise to her shoulder condition. Both Drs Ivers and Andrews have a contrary opinion. The medical evidence is examined bearing in mind the propositions set out in Coles Supermarkets Pty Ltd v Blackwood.
- [87]Dr Bell explained that a person who has developed the type of condition Ms Robinson has in one shoulder would be predisposed to develop the same condition in the contralateral shoulder because the disorder is usually due to a combination of activity related factors and a genetic predisposition. Because Ms Robinson's right shoulder is asymptomatic, more weight should be placed on her activities as a cause of her contralateral shoulder pain.[44]
- [88]In his report Dr Bell said that "due to her work environment, she is often required to press on and complete tasks such as pushing patients in wheelchairs, mobilising patients, putting patient's sock's (sic) on". There was no evidence from Ms Robinson in these proceedings to her undertaking these activities.
- [89]Dr Frederiksen adopted a measured approach. Although he concluded that the injury was due to overuse, he acknowledged the merit in Dr Ivers' opinion that there was no relationship between the left wrist and the right shoulder injuries. He did not agree with it because in his opinion the decreased use of the left upper limb was due to her ongoing wrist symptoms and the subsequent increased use of the right upper limb had contributed to the onset of impingement and bursitis. Under cross-examination he considered the activities with the other side were significant in this case. He further considered that it would come down to how much use the left wrist was. If the left limb was being used then that would be a different scenario than solely relying on one limb. He agreed he needed further particulars about that.[45]
- [90]Dr Andrews was criticised by the Appellant for not making relevant concessions including not being willing to consider both the scientific evidence and the facts of the case. The Commission acknowledges that Dr Andrews held strong views on the matter. However, the transcript shows that in expressing his views in cross-examination, Dr Andrews did refer to the facts of the case but not before firstly stressing the importance of establishing a link scientifically. He went on to state that the facts of the case do not support Ms Robinson because she was put on "extremely light duties for a short period of time doing minimal hours per week."[46] Dr Andrews had been provided with the SDP and had based his view about the lightness of the duties set out there. When informed of the other duties Ms Robinson performed, Dr Andrews did not alter his opinion.
- [91]The Appellant was somewhat dismissive of Dr Ivers' opinion, noting that he had specialised in upper limb injuries only for the last two years. However, I note from the qualifications and positions held by Dr Ivers and which are set out in his report of 2 June 2016 that he has held the positions of Director of Orthopaedic Services at the Toowoomba Base Hospital as well as Chairman of the Orthopaedic Board of Studies.
- [92]Dr Ivers considered Ms Robinson did not perform much shoulder activity and was restricted in the amount of overhead duties she performed. She was also restricted by weight and time spent in performing the duties. I accept however that Dr Ivers did not have detailed knowledge of the work and domestic duties being undertaken by Ms Robinson when she developed pain in her right shoulder.
- [93]Doctors Bell, Frederiksen and Ivers agreed that frequent or repetitive overhead work was required to cause or predispose the shoulder to tendonitis, bursitis or impingement of the shoulder. However, except for Dr Bell, the doctors could not state what degree of repetition or frequency was required. I consider Dr Bell's opinion that the injury could develop from as little as 20‑30 minutes of overhead activity two to three times a week, either continuously or intermittently falls at one end of the spectrum of opinions.
- [94]The evidence of Ms Robinson about the duties she performed at home shows the overhead work was limited. Further, her evidence about overhead work performed in the Rehabilitation Ward, i.e., taking stock from shelves and placing it in cupboards as well as moving roll shelves in the compactus, only formed part of her duties. I also note that Ms Robinson had the aid of a step stool to reduce the overhead work. Although she performed these duties each shift, the shift length from her return to work in November until the report of shoulder pain on 5 January was half to one-third less than the pre‑injury shift length. Ms Robinson's evidence also did not extend to how much time each shift she spent on these overhead duties. Accordingly, the Commission cannot be satisfied that the overhead work performed by Ms Robinson was frequent or repetitive.
- [95]The evidence also does not support a conclusion that other work performed by Ms Robinson whether at home or at work which involved lifting activities away from the body in a flexion type manoeuvre at the shoulder was sufficiently frequent to provide risk to impingement and bursitis.
- [96]I have not accepted that Ms Robinson performed all her duties at work with one limb. While I have accepted that Ms Robinson preferred to use her right limb, my finding about her using the left limb for some work duties is a different scenario than solely relying on one limb. Ms Robinson's use of her left limb diminishes Dr Frederiksen's opinion.
- [97]Further, the load placed on Ms Robinson's right limb is less than that placed on it before her left wrist injury occurred. This is because of the nature of the duties she was performing on the SDP, her reduced shift length, the use of her left hand on occasion and the assistance she received with several home duties. In these circumstances, I am not persuaded that she was overusing her right limb.
- [98]Finally, as the Regulator submitted, Martin J held in Davidson v Blackwood[47] any evidence that might be favourable to Ms Robinson proves no more than a possibility that there is some contribution from her employment activities. It is insufficient to discharge her onus of proof on the balance of probabilities to satisfy s 32 of the Act.
- [99]For these reasons, I am not satisfied on the balance of probabilities that the left wrist injury was a significant contributing factor to the development of Ms Robinson's claimed right shoulder injury.
Orders
- The appeal is dismissed.
- The decision of the Regulator is confirmed.
- The Appellant is to pay the costs of and incidental to the appeal. Failing agreement, liberty to apply is granted.
Footnotes
[1] The Applicant informed the Commission that the request was also to re-open the claim on the grounds of aggravation of the left wrist injury but that is not relevant to the present proceedings.
[2] T1-36.
[3] Ex 1.
[4] T1-21.
[5] T1-57.
[6] T1-21, T1-34.
[7] T1-29.
[8] T1-40.
[9] T1-39.
[10] T1-39.
[11] T1-35, 36, 66-68.
[12] T1-60.
[13] T1-59.
[14] T1-70.
[15] T1-34.
[16] T1-48.
[17] T2-51.
[18] T2-60.
[19] T2-61.
[20] Ex 6.
[21] T2-4.
[22] T2-4.
[23] T2-12.
[24] T2-12,13.
[25] T2-16.
[26] This elevation was recorded in the transcript. However, due to the quality of the audio in the courtroom, Dr Bell later clarified that this figure was 60 degrees. (T2-20)
[27] T2-18.
[28] T2-15.
[29] T2-64, 65.
[30] T2-65.
[31] T2-84.
[32] T2-85.
[33] T2-86.
[34] T2-94, 95.
[35]Mater Misericordiae Health Services Brisbane Limited v Q-COMP (2005) 179 QGIG 144 and Theresa Helen Ward AND Q‑COMP (C/2011/39) - Decision
[36]Ramsay v Watson (1961) 108 CLR 642, 645.
[37]Coles Supermarkets Australia Pty Ltd v Blackwood [2015] QIRC 011, [120].
[38] T2-14.
[39] Ex 5.
[40] American Medical Association.
[41]American Medical Association, P 760.
[42] Ibid.
[43] T1-34.
[44] T2-14.
[45] T2-7.
[46] T2-94.
[47]Davidson v Blackwood [2014] ICQ 008, [23].