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Nathwani v Workers' Compensation Regulator[2021] QIRC 325

Nathwani v Workers' Compensation Regulator[2021] QIRC 325

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nathwani v Workers' Compensation Regulator [2021] QIRC 325

PARTIES:

Nathwani, Saher

(Appellant)

v

Workers' Compensation Regulator

(Respondent)

CASE NO.:

WC/2019/175

PROCEEDING:

Appeal against decision of the Workers' Compensation Regulator

DELIVERED ON:

21 September 2021

HEARING DATES:

1 and 2 July 2020

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 24 December 2020 and Respondent's written submissions filed on 27 January 2021

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:
  1. (a)
    the review decision of the Respondent dated 29 August 2019 is set aside; and
  1. (b)
    another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 11 October 2021; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

CATCHWORDS:

WORKERS' COMPENSATION – ENTITLEMENT TO COMPENSATION – worker employed as a Customer Service Attendant in a service station – worker suffered injury to her left shoulder diagnosed as adhesive capsulitis – worker applied for an assessment of permanent impairment in relation to left shoulder injury – review decision of respondent that worker did not suffer an injury within the meaning of the Workers' Compensation and Rehabilitation Act 2003 – appeal by worker against review decision – whether worker's adhesive capsulitis in her left shoulder arose out of, or in the course of, her employment – whether employment was a significant contributing factor to that injury – worker's injury arose out of, or in the course of, worker's employment and workers' employment was a significant contributing factor to injury – review decision of respondent set aside and another decision substituted, namely, that the worker suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003

LEGISLATION:

Industrial Relations (Tribunals) Rules 2011, r 41

Workers' Compensation and Rehabilitation Act 2003, s 11, s 32, s 132A, s 179 and s 558

CASES:

Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788

Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461

Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100

JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13

Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519

Parks v Workers' Compensation Regulator [2018] QIRC 147

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Rowe v Q-Comp [2009] QIRC 106; (2009) 190 QGIG 93

Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001

State of Queensland (Queensland Health) v Q‑Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447

Theiss Pty Ltd v Q-Comp [2010] ICQ 27

APPEARANCES:

Mr R. Green of Counsel instructed by Mr D. Curran of Smith's Lawyers for the Appellant.

Mr B. McMillan of Counsel directly instructed by Ms O. Steele of the Respondent.

Reasons for Decision

 Introduction

  1. [1]
    Calstores Pty Ltd operates Caltex service stations. Ms Saher Nathwani was employed as a Customer Service Attendant ('CSA') by Calstores Pty Ltd at a Caltex service station located in Surfers Paradise ('the service station').
  1. [2]
    On 28 February 2019, Ms Nathwani lodged a Form 132A with WorkCover Queensland, being an application for assessment of an injury to her left shoulder. Section 132A(2) of the Workers' Compensation and Rehabilitation Act 2003 ('the Act') provides that certain workers may apply to the insurer to have their injury assessed under s 179 of the Act to decide if the worker's injury has resulted in a degree of permanent impairment.
  1. [3]
    Section 132A(7)(b) of the Act provides that the insurer may reject the application only if satisfied the worker has not sustained an injury.
  1. [4]
    By decision dated 20 May 2019, WorkCover rejected Ms Nathwani's application on the basis that she had not sustained an injury within the meaning of s 32 of the Act. Ms Nathwani then sought a review of the WorkCover decision by the Workers' Compensation Regulator ('the Regulator'). By review decision dated 29 August 2019, the Regulator confirmed the decision of WorkCover ('the review decision').
  1. [5]
    Ms Nathwani appeals against the review decision. Ms Nathwani contends that her left shoulder injury is one that arose out of, or in the course of, her employment and that her employment was a significant contributing factor to her injury in accordance with s 32 of the Act.[1] This is because:
  • in or about July 2017, she began feeling pain in her left shoulder whilst unloading cartons of drinks in the stockroom at the service station;[2]
  • on 14 December 2017, she attended upon her treating medical practitioner complaining of left shoulder pain after lifting something at work and that her shoulder had been aching for a couple of months prior to that;[3]
  • prior to the event in July 2017, she had no symptoms or reduction in function pertaining to her left shoulder;[4] and
  • on the basis of the opinion of Dr Malcolm Wallace, Orthopaedic Surgeon:
  • her employment was a significant contributing factor to her left shoulder injury of adhesive capsulitis;[5] and
  • it was unlikely that her previously diagnosed diabetes was a risk of her developing adhesive capsulitis.[6]
  1. [6]
    The Regulator:
  • concedes that Ms Nathwani suffered a personal injury to her left shoulder, namely, adhesive capsulitis;[7]
  • on the basis of the opinions of Dr Peter Dodd, Orthopaedic Surgeon, and Dr Andrew Lingwood, Consultant Occupational and Environmental Physician, contends that:
  • Ms Nathwani's personal injury did not arise out of, '… or in the context of' her employment; and, or in the alternative
  • her employment was not a significant contributing factor to her personal injury.[8]
  1. [7]
    There is no dispute that, at the relevant time, Ms Nathwani was a 'worker' within the meaning of s 11 of the Act.
  1. [8]
    The issues for determination are:
  • did the adhesive capsulitis, from which Ms Nathwani suffered in her left shoulder, arise out of, or in the course of, her employment?[9] and, if so
  • was Ms Nathwani's employment a significant contributing factor to that injury?[10]
  1. [9]
    In my view, Ms Nathwani's adhesive capsulitis in her left shoulder:
  • arose out of, or in the course of, her employment; and
  • her employment was a significant contributing factor to that injury.
  1. [10]
    My reasons follow.

Did the adhesive capsulitis from which Ms Nathwani suffered in her left shoulder, arise out of, or in the course of, her employment?

The Act and the relevant principles

  1. [11]
    An appeal of this type, pursuant to ch 13, pt 3 of the Act, is a hearing de novo.[11] The onus is on Ms Nathwani to prove, on the balance of probabilities, that she had an injury within the meaning of the Act.[12] An injury which arises out of employment occurs where there is a causal connection between the employment and the injury.[13] Although the phrase 'arising out of' does not require the direct or proximate relationship which would be necessary if the phrase used was 'caused by', there must be some causal or consequential relationship between the worker's employment and the injury.[14]
  1. [12]
    An injury 'in the course of employment' means an injury sustained while the worker is engaged in the work which is part of the worker's employment but is also something which is incidental to his or her service.[15]
  1. [13]
    Exhibits 1 and 2, which were tendered by consent, included the medical records of four General Practices from which Ms Nathwani sought medical assistance, including, between 2013 and 2019, the practice of Dr Galina Chafikova of the Robina Seven Day Doctors.
  1. [14]
    Ms Nathwani gave evidence on her own behalf and also led expert evidence from Dr Stephen Thornley, Endocrinologist, and from Dr Wallace. The Regulator's case relied upon the evidence of Dr Dodd, Dr Lingwood and Mr Aaron Creagh, Safety and Well‑Being Business Partner of Calstores Pty Ltd.
  1. [15]
    Ms Nathwani's primary submission is, due to her favouring her left shoulder because of an earlier right shoulder injury, the subsequent repetitive lifting of heavy weights above shoulder height which she undertook in her performing a greater amount of stock work '… caused her to suffer the condition' (adhesive capsulitis).[16]
  1. [16]
    The Regulator's primary submission is that, based on the medical evidence, adhesive capsulitis is an idiopathic disease and Ms Nathwani's employment was merely the setting in which the natural process of the idiopathic disease emerged.[17] The Regulator also submitted that Ms Nathwani's evidence was self-serving and unreliable because there were clear inconsistencies between her oral evidence and the account she gave to the reporting doctors and as recorded in the medical notes of Dr Chafikova.[18]
  1. [17]
    Having regard to the submissions made by the parties, the approach I will take in determining this first issue will be:
  • first, to make an assessment of Ms Nathwani's evidence in terms of:
  • the nature and extent of the work she said she was performing; and
  • the symptoms she suffered and her reporting of them; and
  • secondly, to assess the medical evidence.

Ms Nathwani's general duties as a CSA at the service station

  1. [18]
    Ms Nathwani's evidence was that she commenced employment with Calstores Pty Ltd in 2008 and worked for the majority of her time at the service station.[19]
  1. [19]
    Ms Nathwani stated that the service station Store Managers were:
  • from approximately mid-2014 to January 2017, Ms Liza Martin; and
  • from approximately January 2017, Ms Jenny Nielsen.[20]
  1. [20]
    The Regulator did not dispute that the role of a CSA is one that is mostly associated with duties related to the operation of the convenience store attached to the service station and that a CSA's duties included:
  • the operation of petrol dispensing, involving console operation and the steps associated with enabling motorists to obtain petrol;
  • those associated with the running and operation of the convenience store attached to the service station; and
  • those associated with cleaning the forecourt of the service station.[21]

The injury to Ms Nathwani's right shoulder

  1. [21]
    Ms Nathwani's evidence was that in March 2016 she developed symptoms in her right shoulder which she stated occurred on a busy weekend when she had to stack boxes of 1.2 litre soft drink bottles and, that at the end of the shift, she felt a 'sheer pain' in her right hand shoulder.[22] Ms Nathwani did not report that injury until the following Monday. An application for workers' compensation for that injury was made by her employer, she had a week off work and when she returned to work after that week, she performed light duties until August 2016.[23]

The injury to Ms Nathwani's left shoulder

Ms Nathwani's evidence-in-chief

  1. [22]
    Ms Nathwani's evidence-in-chief was that when she had symptoms in her right shoulder, it did change the way she did things at work. Ms Nathwani stated that her right shoulder was in a sling and that when her right shoulder was out of use, she got into a habit of protecting it and she was hesitant to use too much of her right hand.[24] Ms Nathwani stated this affected the way she restocked shelves, such that she would put more pressure on her left shoulder because it became automatic to protect her right shoulder.[25]
  1. [23]
    Ms Nathwani stated that:
  • there were items that were stored below shoulder level, but that on most days there was not enough room, so stock would be kept on the floor, which included milk crates with up to 9 bottles of 2 litre milk, that would have to be picked up from the floor;[26]
  • the milk would be put on trolleys to fill the outside fridges where she would lift anywhere between 10 to 55 crates on a day, which could be stacked up to 5 crates high, which required her to reach above her shoulder and that she had to hold each crate and balance it on herself to make sure she brought it down safely to place on a trolley to then take them out to fill the fridges;[27]
  • to put stock in the chillers in the store, the highest she would have to reach would require her to step onto a stepping stool which was about 50 cm in height;[28]
  • she had emptied up to 50 milk crates in a shift;[29] and
  • at the time Ms Martin was the store manager (between 2014 and up to January 2017), she (Ms Nathwani) would spend between three to four hours in a shift in the stockroom and when Ms Nielson became the store manager after January 2017, she (Ms Nathwani) spent probably about six hours constantly attending to those duties in the stockroom performing stock duty.[30]
  1. [24]
    Ms Nathwani further stated that:
  • she developed symptoms in her left shoulder in about June or July 2017, but had niggling pain from about May onwards and started feeling it a lot more in June or July;[31]
  • she would take a lot of pain killers, namely, '… Nurofen Zavance or even the Panadol Rapid or something before my shift, during the shift and after my shift;'[32]
  • at first she did not seek any medical treatment for her left shoulder because she was scared to go to anybody because they were going to ask what was the cause of it and she did not want to bring her work into it, but she did tell her manager at the time, Ms Nielson, in about late July or early August 2017;[33] and
  • she did not do anything about the left shoulder pain she was experiencing until December 2017 when she spoke to the Business Manager, Ms Kerry Mount, following which, on 18 December 2017, a mediation took place between Ms Nathwani, Ms Nielson and Ms Mount which seemed to be about the proportion of Ms Nathwani's duties between performing console work and stocking shelves, however, nothing changed in terms of her duties in that regard.[34]
  1. [25]
    In particular, Ms Nathwani stated her entitlement to long service leave featured in the way that she dealt with her left shoulder symptoms at work. Ms Nathwani stated that when she reported her left shoulder injury to Ms Nielson, she was notified that if she were to formally report that '… they might pursue it that way, that I won't make it to my long service leave' and, for that reason, she never went to the doctor.[35]
  1. [26]
    Exhibit 3 includes text messages between Ms Nathwani and a co-worker in about November 2017, late December 2017 and early January 2018 which included two photographs of shelves in the convenience store. Exhibit 4 includes text messages from Ms Nathwani to the same co-worker sent on 6 and 13 May 2017, and on 15 July 2017, and includes three photographs depicting the stockroom and one photograph depicting a lolly rack in the convenience store. The first photograph of the stockroom, which formed part of Exhibit 4, was reproduced in a clearer photograph which became Exhibit 7.[36]
  1. [27]
    The effect of this evidence was that:
  • Ms Nathwani was left with a lot of work to do to restack shelves and chillers by another co-worker who performed the shift immediately prior to her shifts on the days the text messages were sent and the photographs taken;[37] and
  • the photograph taken on 13 May 2017, forming the first page of Exhibit 4 and constituting Exhibit 7, which depicts the stockroom, shows the mobile trolley cages in which stock was temporarily placed before it was then placed on shelves in the stockroom.[38]
  1. [28]
    Ms Nathwani's evidence-in-chief continued on the second day of the hearing because of the interposition of Dr Thornley on the first day.
  1. [29]
    Ms Nathwani was asked when she first noticed symptoms in her left shoulder and she stated that she started noticing the symptoms '… significantly in May' and that over the course of time after May, the symptoms got worse as time progressed.[39] Ms Nathwani was also asked what, if anything, she did about those symptoms in talking to her employer, to which she responded that in some time around July and August (2017) she approached her store manager, in line with the protocol of the company and said to her that '… the workload is immense and I'm scared that I might end up hurting my left shoulder because I'm in quite a lot of pain.'[40]
  1. [30]
    Ms Nathwani then stated that following the injury to her right shoulder, she changed the way in which she worked, namely, when lifting lolly boxes and anything above the level of the fridges and freezer, because of the height of the shelves in the freezer and the fridges, she used her left arm to climb up on a shelf to reach the top so as to retrieve boxes of products and lift them down.[41]
  1. [31]
    Ms Nathwani's evidence was that the lifting she described, as set out in the paragraph immediately above, was not always required and that sort of lifting commenced from the end of 2016 and started getting worse in 2017.[42]
  1. [32]
    The first time Ms Nathwani sought medical treatment in relation to her left shoulder was in December 2017.[43] The last time Ms Nathwani physically worked at the service station was on 26 January 2019 and she was then on long service leave until April 2019.[44]

Ms Nathwani's evidence in cross-examination

  1. [33]
    In cross-examination, Ms Nathwani:
  • agreed that during a standard shift as a CSA, she could be variously required to do a combination of all different tasks, including cleaning duties, console duties, rubbish removal, setting up the forecourt, filling the ice cream fridges and changing signage;[45]
  • stated - when it was put to her that it was standard, as a CSA, for her to do a range of duties on every shift - that from the end of 2016 onwards, but mainly from April/May 2017, she was doing a lot more of one type of work, was not doing a lot of different tasks and that she was '… spending a lot more time doing repetitive tasks';[46]
  • agreed that it was not common that the store would receive 50 milk crates in one day;[47]
  • stated that she performed two nine‑hour shifts, two eight-hour shifts and one five‑hour shift, on Saturday, Sunday, Monday, Tuesday and Wednesday;[48]
  • agreed she was provided with safety equipment, including step stools and step ladders, to do the tasks she was required to do and was provided with occasional training in manual handling;[49]
  • stated that it was only towards the end of her employment, '… Probably not till 2017/18' that she was aware of the employer's requirement that staff were not to lift heavy items above 1.4 m;[50] and
  • agreed there were markings on the walls in the storeroom to indicate 1.4 m in height, that she understood those markings were to guide her not to lift items higher than that mark, and that she was to use either the step stool or the ladder if she needed to place items (on a shelf) higher than that mark.[51]
  1. [34]
    In re-examination, Ms Nathwani stated that while step stools and ladders were available for use, they were not practical to be able to use because she could only use them if there was space available.[52]
  1. [35]
    In terms of the onset of pain symptoms in her left shoulder from May 2017, Ms Nathwani stated that compared with her right shoulder pain from March 2016, there was not any particular event or injury in May 2017 in which she suffered 'sheer pain' which enabled her to be confident that the pain first emerged at that time; and that it was just a '… gradual build-up of pain'.[53]

Ms Nathwani's reporting of her left shoulder pain to medical practitioners

Dr Chafikova

  1. [36]
    In cross-examination, Ms Nathwani agreed that:
  • she had consulted Dr Chafikova on 30 November 2017, when she told Dr Chafikova she was 'stressed at work'[54] and when it was put to her that there was no record of her mentioning, during that consultation, anything about pain in her left shoulder, Ms Nathwani responded: 'Probably not. I was still debating should I or should I not.';[55]
  • the first time she first consulted any doctor about pain to her left shoulder was with Dr Chafikova on 8 December 2017;[56] and
  • she consulted Dr Chafikova on 14 December 2017, from which Dr Chafikova recorded that Ms Nathwani stated her left shoulder had been aching for a couple of months and thought it was from over-using it at work for a couple of months prior.'[57]
  1. [37]
    In respect of the consultation on 14 December 2018, Ms Nathwani stated that she did not want to make a big deal out of it and did not want Dr Chafikova '…to go and start ringing WorkCover or anything.'[58]
  1. [38]
    Ms Nathwani then saw Dr Chafikova regarding her left shoulder on 19 January 2018[59] and on 22 January 2018.[60] The next time Ms Nathwani saw a doctor about her left shoulder pain[61] was when she saw Dr Chafikova on 21 June 2018. The clinical consultation note records:

1.L) shoulder sore, not improving, getting more and more restricted,

rom getting more restricted, due to the pain in upper arm,

wants to have a physio therapy bulk bill,

states didn't use the sessions,[62]

  1. [39]
    When cross-examined about that consultation, Ms Nathwani stated Dr Chafikova did ask about her work duties.[63] However, Ms Nathwani agreed that she did not complain to Dr Chafikova that she needed adjusted duties at work or some kind of medical certificate to affect her work duties. Ms Nathwani stated that this was because she did not want her work involved and that she did not want to go on to workers' compensation.[64]
  1. [40]
    The next time Ms Nathwani consulted Dr Chafikova about her left shoulder was on 31 October 2018.[65] In the notes of that consultation, there is no record of Ms Nathwani specifically complaining about her work duties.
  1. [41]
    On 29 January 2019, Ms Nathwani again consulted Dr Chafikova. The record of that consultation notes Ms Nathwani stating that she wanted a stress leave certificate because she had been bullied at work for three years on and off, that she could not stand it anymore, that she was depressed and wanted to see a psychologist.[66]
  1. [42]
    Then on 11 February 2019, in respect of Ms Nathwani's further consultation with Dr Chafikova, the clinical record for that consultation, under the heading of 'History:' states:

solicitor asked to open WC certificate for L) shoulder injury,

pain started in Augast [sic] 2017 , developed slowly from lifting haevy [sic] stock and beens [sic] at work,

still sore all the time, elevation about 70 degrees,

rotation is restricted, had 3 cortizone [sic] injections untill [sic] now.[67]

  1. [43]
    Ms Nathwani's evidence, in cross-examination, about this consultation was equivocal. Ms Nathwani denied that the consultation came about because her solicitor suggested to her that she should go and see a doctor about her left shoulder pain, but when questioned about whether she attended her General Practitioner on the day for the purposes of getting a medical certificate in relation to a workers' compensation application, Ms Nathwani's evidence was that she did not recall why she attended her General Practitioner.[68]
  1. [44]
    Exhibit 8 is a Queensland Workers' compensation medical certificate signed by Dr Chafikova on 11 February 2019. That certificate relevantly provided that:
  • the injury was left shoulder pain, bursitis; and
  • Ms Nathwani had stated that:
  • the date of the injury was August 2017; and
  • the pain started in August 2017 and developed slowly from lifting heavy stock and '… beens at work' (which I assume to mean bins at work).

Dr Lingwood, Dr Dodd and Dr Wallace

  1. [45]
    Ms Nathwani recalled seeing Dr Lingwood on 3 April 2019, Dr Dodd on 13 May 2019 and Dr Wallace on 16 May 2019 [69] and also recalled that they all asked her for information about the type of work, including the physical, manual handling work, that she was doing at the service station.[70]
  1. [46]
    Ms Nathwani agreed that:
  • she understood that Dr Lingwood, Dr Dodd and Dr Wallace were asking her questions because they were interested to understand her work background and whether her (left shoulder) injury would have arisen in the course of her employment; and
  • it was important that she told those doctors in some detail, the types of activities and work that she was required to do.[71]

Dr Wallace

  1. [47]
    Ms Nathwani recalled seeing Dr Wallace on 16 May 2019 at the request of her solicitors.[72]
  1. [48]
    Dr Wallace, in his first report dated 16 May 2019 (Exhibit 9) under the heading of 'HISTORY', recorded that Ms Nathwani told him that she initially injured her right shoulder in an incident on 5 March 2016 and subsequently developed injuries to her left shoulder in July 2017 over a period of time.[73]
  1. [49]
    Under the heading of 'FURTHER HISTORY' Dr Wallace recorded:

She states that because of her right shoulder pain she was using her left arm for most of the work she was required to do. She states that around July 2017 she started to experience left shoulder pain. She states this occurred over a period of time and was related to the increased workload of similar work she was required to do and working under pressure. She states that she again reported this injury, but did not enter a WorkCover Claim. She states that her complaints of pain in the left shoulder were largely ignored and she worked until she states that her left arm ceased [sic] up and she lost movement in it. At this time, she states that she re-attended her general practitioner and had a further X-ray and ultrasound of her left shoulder.[74]

  1. [50]
    Ms Nathwani accepted that if Dr Wallace put the above history in his report, then she would have given him that information.[75]

Dr Dodd

  1. [51]
    Ms Nathwani recalled seeing Dr Dodd on 13 May 2019.[76]
  1. [52]
    In Dr Dodd's first report dated 13 May 2019 (Exhibit 13), under the heading of 'History:', Dr Dodd recorded:

Saher Nathwani is 46 years old and is right handed and at the time of her injury was employed as a Customer Service Attendant for Caltex Service Station (Calstores Pty Ltd), where she had been for ten and a half years. On various occasions she was employed as a casual and permanent part time. At the time of the injury in July 2017, she was employed as a permanent part time working 36 hours a week.

In July 2017, while she was doing her normal duties she started to develop pain in her left shoulder. She attributed this to overuse of her left shoulder because of a previous claim she had had in 2016 for an injury to her right shoulder. She said doing her normal duties, which involved some lifting and reaching, she developed pain in the left shoulder which radiated to the mid humeral area. She kept working and did not consult her General Practitioner until December 2017.[77]

  1. [53]
    When, in cross-examination, Ms Nathwani was asked, in relation to the above‑mentioned part of Dr Dodd's report, if she recalled telling Dr Dodd she started to develop pain in her left shoulder in July 2017, that the pain arose during the course of her normal duties and that her normal duties involved 'some' lifting and reaching, Ms Nathwani did not accept that that was what she told Dr Dodd.[78] Ms Nathwani did accept that she told Dr Dodd she attributed her left shoulder injury to overuse of her left limb.[79]
  1. [54]
    Further, when asked if she contended that she explained to Dr Dodd the extent of lifting, carrying and reaching that she described in her evidence-in-chief, Ms Nathwani stated that it depended upon how much Dr Dodd asked and that every doctor asked her different questions.[80] When it was suggested to Ms Nathwani that she did not tell Dr Dodd about having to lift and unload up to 50 milk crates in a day and having to spend up to 6 hours at a time unloading stock, she stated that she would have provided that information if Dr Dodd had asked her.[81]

Dr Lingwood

  1. [55]
    In his report to WorkCover dated 3 April 2019 (Exhibit 15), Dr Lingwood recorded what Ms Nathwani reported to him, namely:
  • in early 2017, there was a change in the way that stock was ordered in the store, meaning that during two of Ms Nathwani's shifts at work (her weekend shifts) there was a greater amount of unpacking of stock than had previously been the case;
  • there were no symptoms in her left shoulder initially at that time, nor over the coming months, but in around August 2017, she started to notice a gradual build‑up of discomfort and tightness in her left shoulder;
  • in response to direct questioning, Ms Nathwani denied an injury or specific traumatic incident; and
  • she was continuing to perform her normal duties, which included regular packing and unpacking of stock.[82]
  1. [56]
    Ms Nathwani's evidence in cross-examination, in general, was that she did not recall telling Dr Lingwood the first two of the above matters, but recalled telling him that she continued to perform her normal duties which included regular packing and unpacking of stock.[83]
  1. [57]
    When it was suggested to Ms Nathwani that she did not tell Dr Lingwood she would spend three or four, or up to six hours on a single shift packing and unpacking stock or that she would have to unpack up to 50 crates of milk, she stated that Dr Lingwood did not ask her those questions and that she described her work to Dr Lingwood in a general way which was what Dr Lingwood had asked.[84]

My assessment of Ms Nathwani's evidence

The injury to Ms Nathwani's right shoulder, her subsequent favouring of her left shoulder and the change in duties she performed from late 2016/early 2017

  1. [58]
    Ms Nathwani submitted that:
  • she maintained her position in relation to the nature and extent of deliveries of milk crates;
  • the photographic evidence (Exhibits 3 and 4) was consistent with what she said about the way the system of work changed over the period of time, the impact of such changes, that access to the stockroom was very difficult and that it was crowded with stock; and
  • in relation to her lifting above shoulder height, she denied that it was very rare for her to lift boxes higher than her body and while accepting that there were step stools and stepladders to assist in her raising her body height, she stated they were not of assistance because, due to their number, boxes had to be stacked against the wall.[85]
  1. [59]
    The Regulator submitted that:
  • Ms Nathwani's failure to accept that she knew until the end of her employment not to stack boxes above 1.4 m high in the stockroom was contradicted by an acknowledgement that she knew the line painted on the wall was there to remind staff not to stack items higher than the line;[86] and
  • the evidence contained in Exhibit 4, and Ms Nathwani's evidence generally, did not prove that Ms Nathwani did not have ready access to the step stools and ladders needed to do her work.[87]
  1. [60]
    However, the Regulator accepted:
  • Ms Nathwani's description of her role, namely, comprising of duties associated with the management of the till and various stock duties related to the operation of the convenience store; and
  • Ms Nathwani's evidence that:
  • her role originally constituted a proportion between the console and stock work as being one where stock work comprised a smaller proportion of the work; and
  • the stock work activities increased over time and leading up to the point where she started to experience right shoulder symptoms and then further, increasing through to the time she developed left shoulder symptoms.[88]
  1. [61]
    Indeed, the Regulator accepted that it was not controversial that Ms Nathwani's work as a CSA frequently involved repetitive lifting, sometimes above shoulder height, and other manual handling work.[89]
  1. [62]
    Further, there is no real dispute about the circumstances and consequences of the March 2016 injury to Ms Nathwani's right shoulder.
  1. [63]
    In cross-examination, Ms Nathwani agreed that her employer:
  • accepted she had injured her right shoulder at work;
  • supported her in attending physiotherapy; and
  • provided her with appropriate light duties so that she could continue working notwithstanding her right shoulder injury.[90]
  1. [64]
    Ms Nathwani also accepted that while she was on light duties in 2016 with her right shoulder injury, she did not do any heavy lifting at work and that when she returned to normal duties in August 2016, she continued to experience 'slight' pain but nothing that affected her ability to work.[91]
  1. [65]
    The Regulator did not seriously challenge Ms Nathwani's evidence that after she returned to normal duties in August 2016, she favoured her right arm or shoulder in order to avoid pain to her right shoulder.[92]
  1. [66]
    Ms Nathwani gave evidence about retrieving items from the stockroom or from the shop floor (when there was not enough space in the stockroom) and placing them onto shelves and into fridges in the store after 2016. This work involved:
  • emptying and filling the trolley cages used to move stock in between the stockroom and the store;
  • filling the fridges with stock; and
  • filling the shelves.[93]
  1. [67]
    Ms Nathwani's evidence then was:

All right. And tell us about the movements associated with putting stock into the fridge?---Well, before, we used to stock it to the level where we could reach easily and just take it out and fill it. But then – and that was – obviously, it had to be filled, so – but then it started changing, where we were much higher, stocking stuff, and - - -

When did that change?---End of – well, from mid to end of 2016 onwards.

All right. So what was the heaviest that you would lift when you were putting stock into the fridge?---Sometimes you could have a box of two-litre Coke, eight in a box, and you would be lifting that, purely for the fact there would be no room to manoeuvre a trolley. So you had no choice, so you had to empty the stock from the stock room outside to put the fresh stock in for the new promo, mainly because there was no room to manoeuvre anything in and out of - - -

All right. And after 2016, can you give an indication as to the height, at the highest level, that you had to reach in order to put stock into the fridge?---To be honest with you, I couldn’t reach because we were provided stepping stool and three-step ladder, and sometimes stock would be up to the ceiling. Like, chips boxes and things like that. And even in the fridge – cool room – the bottles would be higher than your arm’s length, and those cold fans blowing on your back while you’re trying to do that. So yes, it was different compared to prior to 2016.

All right. So just thinking about in a 30-minute[94] period after 2016, putting stock into the fridge, how many times do you think you would be reaching up above your shoulders?---I couldn’t even count. That many times. Probably about 30-plus times. Sometimes more. Depends how much stock there was.[95]

  1. [68]
    As referred to earlier, Ms Nathwani's evidence was that:
  • because there was not enough room in the stockroom, stock would be kept on the floor, which included milk crates with up to 9 bottles of 2 litre milk, and that would have to be picked up from the floor;
  • the milk would be put on trolleys to fill the outside fridges where she would lift anywhere between 10 to 55 crates in a day, which could be stacked up to 5 crates high, which required her to reach above her shoulder and that she had to hold each crate and balance it on herself to make sure she brought them down safely to place on a trolley to then take them out to fill the fridges;
  • to put stock in the chillers in the store, the highest she would have to reach would require her to step onto the stepping stool which was about 50 cm in height; and
  • after January 2017, she spent probably about six hours constantly attending to those duties in the stockroom performing stock duty.
  1. [69]
    Furthermore, whilst I acknowledge they are a snapshot at a particular time, the photographs of the stockroom contained in Exhibit 4 and Exhibit 7 are evidence tending to prove that there was a lot of stock that was stacked high, which is consistent with Ms Nathwani's evidence on these matters.
  1. [70]
    Ms Nathwani did not give clear evidence-in-chief about the estimates of the weights she would lift when moving stock. Ms Nathwani's evidence, when cross-examined about the Caltex Job Dictionary CSA (Exhibit 18) which described the daily accepting of deliveries, was that she would shift items weighing 15 to 20 kgs occasionally and items less than 10 kgs frequently.[96] In my view, this is the best evidence of the weights Ms Nathwani would be lifting when moving stock.
  1. [71]
    I generally accept Ms Nathwani's evidence about the duties she said she performed following her injury to her right shoulder, the change to the way that she said she performed her duties following her right shoulder injury, and the change in the nature of the duties she performed from late 2016 and early 2017, namely, the greater period of time she spent constantly attending to duties in the stockroom retrieving stock and placing stock on the store's shelves and fridges. There are three principal reasons for this:
  • first, the concessions made by the Regulator that I have referred to above at paragraphs [60], [61] and [65];
  • secondly, the fact that the Regulator called no evidence from any person who directly observed Ms Nathwani performing her duties that would tend to cast any doubt on Ms Nathwani's evidence about these matters; and
  • thirdly, Ms Nathwani's evidence in cross-examination about these matters, summarised in paragraph [33], did not persuade me that her evidence about the change in her duties should not be accepted.
  1. [72]
    Exhibit 17 is a Caltex document, dated September 2011, that contains the Functional Task Analysis of a CSA's duties, including unpacking mobile trolley cages (called delivery cages) and restocking shelves and fridges. Exhibit 18 is a document updated in June 2020, which contains a work description for a CSA. Exhibit 19 is a Manual Handling Operating Procedure for CSAs. However, in making my determination about the work performed by Ms Nathwani, the more accurate evidence is her own evidence as opposed to documents such as these. Indeed, Ms Nathwani's evidence was that the CSAs used to '… sort of get timed to do our, as it was portrayed, chores. So we had to make sure that things get done faster.' [97]
  1. [73]
    I find that:
  • Ms Nathwani's work involved repetitive lifting, sometimes above shoulder height, and other manual handling work;
  • the stock work activities increased over time and leading up to the point where she started to experience right shoulder symptoms and then further, increasing through to the time she developed left shoulder symptoms;
  • after she returned to normal duties in August 2016, she favoured her left arm or shoulder in order to avoid pain to her right shoulder;
  • from about late 2016, early 2017, Ms Nathwani was performing a greater amount of work involving stock, namely, retrieving stock in the stock room to place in the fridges and shelves in the convenience store and then placing the stock in the shelves and fridges in the convenience store;
  • that work required her to reach above her shoulder to retrieve stock that was stacked high which required lifting of heavy crates of milk bottles or soft drinks from above shoulder height onto the ground, which involved balancing the crates to make sure she brought them down safely; and
  • this would involve lifting items weighing 15 to 20 kgs occasionally and items less than 10 kgs frequently.

Ms Nathwani's reporting of symptoms of her left shoulder to medical practitioners

  1. [74]
    Ms Nathwani submitted, that in relation to the issues raised with her in cross‑examination about the date she reported the incident, the prospect of losing long service leave entitlements was a proper foundation for her concern having regard to the conversation she had with her supervisor. Ms Nathwani submitted that fear extended to the manner in which she interacted with her General Practitioner and her refraining from speaking with her General Practitioner about her symptoms.[98]
  1. [75]
    Ms Nathwani also submitted that while there was some difference in the manner in which she reported the timing of symptoms to her left shoulder, no adverse view should be made in relation to the factual matter as to when she stated the symptoms became such that she noticed them. In that regard, Ms Nathwani submitted that her reporting was essentially consistent, namely, that she started to notice pain in or around May 2017, that history was consistent with what she told Dr Lingwood and there is the fact that she was reluctant to involve work because of a fear of losing her job and her income security which would account for '… some differences in detail regarding the manner in which the history of symptoms was reported.'[99]
  1. [76]
    Ms Nathwani then submitted that:
  • in respect of her reporting of her duties to Dr Lingwood, she answered the questions that were put to her by Dr Lingwood;
  • in respect of her evidence denying telling Dr Dodd the symptoms started in July 2017, this was because the symptoms started in May 2017, but the intensity of her pain was in July 2017; and
  • in respect of her evidence to the doctors about the tasks she performed, it was clear that the doctors '… did not appreciate the details of specifics about the tasks performed, or the circumstances in which they were performed' and her evidence remained consistent when asked about those matters.[100]
  1. [77]
    The Regulator submitted that:
  • Ms Nathwani gave evidence that her left shoulder symptoms began in May 2017, yet told each of the reporting specialists her symptoms began in July or August 2017 and she told her General Practitioner in December 2017 that she had been experiencing pain for a couple of months;[101]
  • it was most unlikely that each of the three reporting specialists made errors in recording such critical information as to the onset of symptoms, and the far more likely scenario is that Ms Nathwani gave each of the reporting doctors the history set out in the reports and to the extent that varies from the evidence given by her to the Commission, the account given in the medical reports should be preferred;[102]
  • Ms Nathwani's reporting of her left shoulder pain to her employer was in July 2017 and her evidence that she did not wish to pursue that complaint because of her impending entitlement to long service leave and her concern that she would lose her job is entirely inconsistent with the employer's approach to her previous right shoulder injury which was supportive;[103]
  • Ms Nathwani did not consult a doctor until December 2017 and did not seek a workers' compensation medical certificate until January 2019,[104] after she had consulted a solicitor and sought time off work due to alleged bullying;[105]
  • Ms Nathwani's refusal to concede that she had told the reporting specialists matters of fact set out in the reports, such as the time her symptoms commenced, undermines her reliability;[106]
  • Ms Nathwani's evidence as to the nature of the work duties were significantly different to what she told Dr Dodd and Dr Lingwood and went considerably further than the account she gave to Dr Wallace; and that Dr Lingwood and Dr Dodd were explicit in their evidence that their opinions were based upon the history provided to them by Ms Nathwani;[107]
  • Ms Nathwani's explanation, in cross-examination, that she did not tell Dr Dodd, Dr Lingwood and Dr Wallace the detail about the work she was doing, because they did not ask, does not bear scrutiny because:
  • Ms Nathwani understood the importance of telling the reporting doctors about her work tasks in the context of their assessments of the cause of her left shoulder injury, such that it was most unlikely that she would simply not have told them because they did not ask; and
  • after she returned to normal duties in August 2016 (following her right shoulder injury) she continued to experience slight pain in her right shoulder but nothing affected her ability to work and that after that time she was still favouring her right shoulder because she had fear of doing the same thing again, being an account entirely consistent with that recorded in the reports of Dr Dodd and Dr Lingwood and entirely inconsistent with her account in her evidence that her work involved repeated and frequent heavy lifting of boxes above shoulder height;[108]
  • her contention that her adhesive capsulitis arose from her employment in May 2017 and that changes in her work duties over a period of time, including increased stock work and requirements to lift heavy boxes above shoulder height, was a significant contributing factor to that condition, where the changes in work duties commenced from mid to end of 2016 onwards, was inconsistent with the documented account she gave to the doctors she saw for treatment and assessment;[109] and
  • Ms Nathwani's evidence that she told her General Practitioner, on 14 December 2017, some 12 to 18 months after the alleged changes in work duties, that her left shoulder had been aching for a couple of months, was inconsistent with her evidence that she had pain symptoms in the left shoulder from May 2017 which she connected with a change to her work duties since mid to late 2016.[110]
  1. [78]
    It is true that Ms Nathwani has varied in nominating, when giving a history to medical practitioners, the months in 2017 when she says her left shoulder symptoms started. However, in my view, these inconsistencies are not so egregious that it should cause me to find that her evidence was self-serving and unreliable.
  1. [79]
    I have come to this conclusion because:
  • Ms Nathwani's evidence was that she had a niggling pain in her left shoulder from about May 2017 onwards and she started feeling a lot more pain from July 2017;
  • there is no dispute that Ms Nathwani reported to Ms Nielsen that she was having left shoulder pain in around July 2017;
  • Ms Nathwani informed Dr Chafikova:
  • on 8 December 2017, that her left shoulder had been sore for a few months; and
  • on 14 December 2017, that her shoulder had been aching for a couple of months;
  • Ms Nathwani informed Dr Wallace, Dr Dodd and Dr Thornley[111] that she began to experience pain in her left shoulder in July 2017; and
  • Ms Nathwani informed Dr Lingwood that in or around August 2017 she started to notice a gradual build-up of discomfort and tightness in her left shoulder.
  1. [80]
    Having regard to what Ms Nathwani informed Dr Chafikova, while it could be said that a few months or a couple of months before December 2017, is not June or July 2017, the other reporting to medical practitioners of when she said her left shoulder symptoms became noticeable or painful (namely June or July 2017 or around August 2017) was generally consistent.
  1. [81]
    True, in cross-examination, when it was suggested to Ms Nathwani whether it was possible that she told Dr Wallace that she first experienced pain in her left shoulder in July 2017, Ms Nathwani answered 'No' because the pain in her left shoulder did not start in July and that she would not say that.[112] Similarly, when Ms Nathwani was cross‑examined about the content of Dr Chafikova's clinical record dated 11 February 2019 and Dr Chafikova's workers' compensation medical certificate of the same date, that Ms Nathwani told Dr Chafikova her left shoulder pain started in August 2017, Ms Nathwani denied that she told Dr Chafikova that the pain in her left shoulder started in August 2017.[113] In the same vein, Ms Nathwani did not accept that she told Dr Dodd she started to develop pain in her left shoulder in July 2017, that the pain arose during the course of her normal duties and that her normal duties involved 'some' lifting and reaching.[114]
  1. [82]
    While it is difficult to reconcile these denials with the relevant parts of the doctors' reports, my assessment is that what is recorded by those medical practitioners is generally consistent with Ms Nathwani's own evidence-in-chief and what Ms Nathwani told other medical practitioners about when she started experiencing noticeable left shoulder symptoms.
  1. [83]
    For these reasons, I do not find that Ms Nathwani's evidence about what she told the medical practitioners when she started experiencing pain symptoms in her left shoulder is so inconsistent that I should not accept her as a witness of credit for those matters.

Other issues concerning Ms Nathwani's credit

  1. [84]
    In terms of the gaps between Ms Nathwani's consulting with her General Practitioner about her left shoulder pain in 2017 and 2019, Ms Nathwani submitted that given that she was under a treatment plan arising out of discussions pertaining to the condition, the nature of her attendance '… was more consistent with a period of non-attendance rather than re-attendance' and that her failure in some of those consultations to mention work was consistent with her concerns about her losing her long service leave entitlements and the prospect of her employer reducing her hours. Ms Nathwani further submitted that it was evident she was taking every effort to manage her symptoms.[115]
  1. [85]
    Having regard to Exhibit 1, on 8 December 2017, Ms Nathwani first reported to Dr Chafikova that her shoulder had been sore for a few months. When Ms Nathwani then saw Dr Chafikova again on 14 December 2017, she linked that pain to her work and an ultrasound was requested. Ms Nathwani's left shoulder pain was then managed by Dr Chafikova by consultations on 19 January 2018,[116] 22 January 2018 (in respect of which physiotherapy was prescribed and risks and benefits of attending the physiotherapy sessions were explained to her,[117] but which she never attended),[118] 21 June 2018 (in respect of which an X‑ray for her left shoulder was requested),[119] 6 July 2018 (where the results of the X-ray were discussed and where the management of her condition was discussed),[120] 31 October 2018 (in respect of which acupuncture was prescribed and administered)[121] and 11 February 2019 when a workers' compensation medical certificate was issued and where, in the record of that consultation, it was noted that Ms Nathwani had had 3 cortisone injections until that time.[122] It seems to me that this evidence supports Ms Nathwani's contention that she was taking steps to manage her symptoms.
  1. [86]
    There is no dispute that Ms Nathwani reported her left shoulder pain to her employer in July 2017.[123] Ms Nathwani's evidence was that when she reported her left shoulder symptoms to Ms Nielsen (in late July, early August 2017),[124] she was 'notified' (by Ms Nielsen it seems on the evidence)[125] that if she was to formally report her symptoms, she might not make it to her long service leave[126] and that was the reason why she did not seek any medical treatment for her left shoulder until December 2017.[127] Ms Nathwani stated in cross-examination that she told Ms Nielsen that she thought the pain in her left shoulder was due to her work.[128] Ms Nielsen was not called to give evidence to dispute Ms Nathwani's evidence.
  1. [87]
    While, as submitted by the Regulator, such a position being taken by Ms Nathwani's employer was inconsistent with the way her employer treated her in relation to her March 2016 right shoulder injury, given Ms Nathwani's undisputed evidence that the store manager (Ms Nielsen) made such a statement in about July 2017, then Ms Nathwani's reluctance to formally link, to her doctor, her left shoulder pain to her work until 14 December 2017 is at least understandable.
  1. [88]
    Ms Nathwani was cross-examined about the mediation that occurred in December 2017 that she described in her evidence-in-chief.[129] Ms Nathwani stated:
  • the mediation occurred between her, Ms Mount and Ms Nielson;[130]
  • the mediation was about:
  • her workload and about how she was being treated at work; and
  • her interpersonal relationship with her manager, with her specific concern that she was not being spoken to at all and about the way the managers were treating her at the time.[131]
  1. [89]
    Ms Nathwani stated that there was no communication in the company, she was constantly begging for attention, she could not financially afford to lose her job and she was doing everything so she did not end up losing her job.[132] Again, that evidence is consistent with her reluctance to formally link, to her doctor, her left shoulder pain to her work.
  1. [90]
    As submitted by the Regulator, while Ms Nathwani did not seek a workers' compensation medical certificate until February 2019, which was, as a matter of fact, after she had consulted a solicitor and sought time off work due to alleged bullying, the timing of those facts do not persuade me that she should not be believed about when her left shoulder pain started. This is because:
  • there is no dispute that Ms Nathwani reported her left shoulder pain to Ms Nielsen in around July 2017,[133] which was after the time she started performing a greater amount of stock work and performing a greater frequency of reaching above shoulder height to lift down stock;
  • her reasons for not wanting to pursue a workers' compensation claim through her employer were due to the concerns about her job security following what her store manager said to her about her long service leave; and
  • Ms Nathwani saw her General Practitioner about her left shoulder pain on 8 December 2017, and linked that shoulder pain to her work at the consultation on 14 December 2017, which was then managed by her General Practitioner, though not on a regular basis, throughout 2018 and into early 2019.
  1. [91]
    I may have formed a different view about Ms Nathwani's credit if, in the absence of the facts referred to in the paragraph immediately above, the first time she raised any issue about her left shoulder pain being work-related immediately followed her consulting a solicitor about alleged bullying. However, that is not what occurred.
  1. [92]
    The Regulator also submitted that Ms Nathwani's failure to accept that she knew, during her employment, not to stack boxes above 1.4 m high in the storeroom was contradicted by her acknowledgement that she knew the line painted on the walls were to remind staff not to stack higher than the line.[134] Ms Nathwani's evidence, in cross‑examination, was that she was not aware of the requirement to not lift above 1.4 m until well after her right shoulder injury and towards the end of her employment in 2017/2018.[135]
  1. [93]
    While that was a fair submission to make on the evidence given by Ms Nathwani about that topic, it does not, having regard to the reasons why I find Ms Nathwani to be a witness of credit as set out above, cause me to disregard the evidence she gave about the frequency of her lifting heavy boxes of stock above shoulder height.

The expert evidence

Dr Coleclough

  1. [94]
    Exhibit 1 included a report dated 3 August 2019 from Dr Gillian Coleclough, General Practitioner. Dr Coleclough, who started treating Ms Nathwani in 2015, relevantly opined that:

2, Since 2015 Sahar [sic] has been on Metformin , in dietary advive [sic] for her diabetes .

3, I believe her shoulderpathology [sic] is a direct consequence of her work duties not her diabetes .

4, Her left shoulder had no pain , reduction in function prior to the incident in July 2017 after lifting pallets the pain commenced .[136]

Dr Thornley

  1. [95]
    Dr Thornley did not directly examine Ms Nathwani but conducted a file review of the documents set out on the first page of his report dated 19 April 2020. The documents he reviewed included Dr Wallace's two reports, Ms Nathwani's medical record from the Robina Seven Day Doctors dated 8 April 2019 and Dr Lingwood's first report dated 3 April 2019.[137] Dr Thornley did not have the first-hand account from Ms Nathwani of the lifting she performed, in terms of repetition or weight, that he referred to in his report.[138]
  1. [96]
    Dr Thornley was asked what impact, if any, Ms Nathwani's Type 2 diabetes had on the development of the diagnosed orthopaedic left shoulder injuries. Dr Thornley opined that:
  • if Ms Nathwani did not have a job requiring repetitive lifting of relatively heavy boxes weighing up to 16 kg, then her chance of developing adhesive capsulitis would have been no more than 10% to 20%;
  • it was certainly not an inevitable consequence of having long-term Type 2 diabetes mellitus, that adhesive capsulitis develops as a complication; and
  • the development of adhesive capsulitis in Ms Nathwani's case, whilst possibly contributed to by the presence of Type 2 diabetes mellitus, was largely contributed to by repetitive workplace lifting of heavy boxes, often from above shoulder height and:
  • the contribution of Type 2 diabetes mellitus to the development of her adhesive capsulitis was in the order of 30%; and
  • the contribution of repetitive workplace lifting of heavy boxes was 70%.[139]
  1. [97]
    Dr Thornley, also stated that despite Ms Nathwani's diabetic control being suboptimal between 2013 and 2019, he did not think that contributed significantly to an increased risk of the development of adhesive capsulitis. Dr Thornley stated that he knew of no scientific published study demonstrating an increased risk of adhesive capsulitis in patients who have suboptimal diabetic control.[140]

Dr Wallace

  1. [98]
    Ms Nathwani's history, as given to Dr Wallace for the purposes of his reports, is, in part, set out in paragraphs [48] and [49] of these reasons. In his first report, in summarising Ms Nathwani's past medical history, he noted that Ms Nathwani suffered from Type 2 diabetes for which she was prescribed Metformin.[141]
  1. [99]
    Dr Wallace opined that:
  • Ms Nathwani's sustained personal injuries, which were work-related, and which affected both shoulders;
  • the nature and conditions of the work she was directed to do have been a significant contributing factor to her condition;
  • Ms Nathwani suffered from a soft tissue injury to the right shoulder (now resolved) and developed an adhesive capsulitis in the left shoulder to which the nature and conditions of her work and overuse of the left shoulder were significant contributing factors; and
  • Ms Nathwani's employment was a material contributing factor to the development of the symptoms in her right shoulder due to subacromial bursitis and subsequently a very significant contributing factor to the development of adhesive capsulitis in the left shoulder.[142]
  1. [100]
    Dr Wallace made his supplementary report dated 4 July 2019. In his supplementary report, Dr Wallace opined that:
  • it remained his opinion that Ms Nathwani suffered from adhesive left capsulitis with her work being a significant contributing factor to the problem;
  • there was an increased risk amongst Type 2 diabetics and the development of adhesive capsulitis, however, that did not imply that Ms Nathwani would have developed a frozen shoulder in any case, nor that all Type 2 diabetics would have developed frozen shoulder, but merely there is an increased risk amongst Type 2 diabetics;
  • were it not for her work, Ms Nathwani would have been unlikely to develop adhesive capsulitis;
  • Ms Nathwani's Type 2 diabetes was not a significant contributing factor to her left shoulder condition in that 10% to 20% of Type 2 diabetics will at some time develop symptoms of adhesive capsulitis; and
  • the cause of adhesive capsulitis was unclear, but that the cause of increased risk of adhesive capsulitis in Type 2 diabetics was also unclear.[143]

Dr Dodd

  1. [101]
    Dr Dodd examined Ms Nathwani on 13 May 2019 for WorkCover. Ms Nathwani's history, as recorded by Dr Dodd, is set out in paragraph [52] of these reasons.
  1. [102]
    Ms Nathwani's medical condition, as identified by Dr Dodd, was resolving subacromial bursitis and probably also resolving adhesive capsulitis (frozen shoulder) as diagnosed by Dr Lingwood.[144]
  1. [103]
    Dr Dodd:
  • agreed with Dr Lingwood that as Ms Nathwani is a Type 2 diabetic, that was likely to be contributing to her adhesive capsulitis, rather than any work injury; and
  • opined that '… overuse of the left shoulder because of problems with the right shoulder is not a legitimate cause for joint pathology.'[145]
  1. [104]
    In giving this opinion, Dr Dodd relevantly stated:

To emphasise it I will refer to the American Medical Association Guides to the Evaluation of Disease, Injury and Causation, second edition and in particular section one, where there is a chapter "evaluating causation for the opposite upper limb". In this section devoted to the shoulder, a large number of studies do not support favouring is a reasonable cause for development of symptoms in the contra lateral shoulder.[146]

  1. [105]
    Dr Dodd prepared a supplementary report dated 24 April 2020 upon being provided with Dr Thornley's report dated 19 April 2020. Dr Dodd stated that he disagreed entirely with Dr Thornley's conclusions and that the report from Dr Thornley did not change the opinions he expressed in his report dated 13 May 2019.
  1. [106]
    In cross-examination, Dr Dodd was asked what he meant, in his report, when he opined it was more likely that Ms Nathwani's resolving adhesive capsulitis related to her Type 2 diabetes. Dr Dodd answered by stating:

Okay. This lady developed pain at work. There’s no doubt about that. That’s in the history and that’s from what I obtained. But just because an individual gets pain at work doesn’t necessarily mean to say the pain was caused by work. I’ve said there are two issues. There’s actually another issue. This lady’s diagnosis is subacromial bursitis with impingement which results in a restriction of movement, which I’ve measured. Now, that condition can occur de novo, without trauma. It can occur as you get older, particularly she’s 46 or 47 now, and it can occur in association with diabetes. So the point I was making here is that if you take those three into situation and she developed pain at work, it’s more likely than not that work had nothing - more likely than not that work was not the most important significant factor in causing her symptoms. As some people call this constitutional condition, which means it occurs in or out of the work place and the work place is just the setting where the pain occurred. It’s not the setting where the injury occurred. Can you understand what I’m getting at?

…

So there are three issues that contribute to the development of the injury which then causes the symptoms that she experiences and what you’re saying is that work is not necessarily to be regarded as the cause of the injury or the symptoms?---Well, it’s probably wrong to call it injury. It’s symptoms, true, and it’s a disease process. But there’s no such - there’s no traumatic instance and she will say that herself. She says pain came on when she was favouring her other shoulder, but I think we’ve - literature would be against that. So there’s no such injury itself except for the development of pain.[147]

Dr Lingwood

  1. [107]
    Dr Lingwood initially assessed Ms Nathwani on 3 April 2019 for WorkCover. The history Dr Lingwood recorded was that:
  • in early 2017, there was a change in the way that stock was ordered in Ms Nathwani's store, meaning that during two of her shifts of work (her weekend shifts) there was a greater amount of unpacking of stock than had previously been the case;
  • there were no symptoms in her left shoulder initially at that time nor over the coming months;
  • in around August 2017, however, Ms Nathwani indicated that she started to notice a gradual build-up of discomfort and tightness in her left shoulder and that she denied any specific injury or specific traumatic incident; and
  • she indicated that she was continuing to perform her normal duties which included regular packing and unpacking of stock, there were no further changes in her work at that point, and, as referred to above, there was no acute injury or incident.[148]
  1. [108]
    In giving his opinion, Dr Lingwood stated:

Mr [sic] Nathwani is a 46-year-old right handed customer service attendant for Caltex in Surfers paradise. She reports a gradual onset and progressively worsening left shoulder pain and restriction of range of motion which has developed and gradually worsened over an approximately 18 month period. This has been in the absence of any injury or traumatic incident. She has been aware of the symptoms when performing lifting, loading and unpacking tasks at work, however as above there were no change in these tasks around the time of the onset of her symptoms (there had been some change approximately eight months prior to the onset). Since ceasing work in January 2019, there has been no improvement of the symptoms however she feels there has been a decrease or plateauing in the rate of worsening. On examination, there is marked restriction of range of motion in all plains, with external rotation particularly affected. I also note a history of type 2 diabetes which Ms Nathwani indicated that her general practitioner has told her could be better controlled.

Given the above, by far the most likely diagnosis in Ms Nathwani's case is that of adhesive capsulitis or frozen shoulder. Adhesive capsulitis is a condition which occurs most commonly in the fifth and sixth decades of life and is more common in women. It can occur idiopathically but there is a strong association between the condition and diabetes mellitus.

…

In Ms Nathwani's case, there has not been an injury or traumatic incident. Her age, sex and particularly her diabetes are very strong constitutional risk factors and whilst it is acknowledged that she has noted the onset of symptoms in the course of lifting tasks at work, this is judged to be more in keeping with the natural history of the underlying condition (which will result in pain when strain is placed through the shoulder region or it is moved beyond its comfortable range) rather than because these exposures have played any causative role in its development.[149]

  1. [109]
    While Dr Lingwood opined that Ms Nathwani had an ongoing partial capacity for work, that incapacity was '… not judged to relate to a work-caused condition in this case.[150]
  1. [110]
    Dr Lingwood provided the Regulator with a supplementary report upon being provided with Dr Thornley's report. Dr Lingwood stated that the opinion he gave in his first report was based on the history provided to him that there was no report of any injury or traumatic incident sustained by Ms Nathwani in the course of her work. Dr Lingwood stated that Ms Nathwani's duties were noted '… to involve regular packing and unpacking of stock' and that he was not of the opinion that Ms Nathwani's presentation was consistent with any musculoskeletal injury to her left shoulder in the course of her work.[151]
  1. [111]
    Dr Lingwood:
  • stated that he was not of the opinion that the current thinking on the causation of adhesive capsulitis supports the notion that generalised repetitive physical tasks or lifting with the affected arm, in the absence of an injury or trauma, is likely to significantly contribute to the development of that condition;
  • agreed with Dr Thornley's comments regarding estimates of prevalence of adhesive capsulitis in the diabetic population, but stated that prevalence was not a measure of risk as it does not allow for comment to be made on the risk of an individual developing the condition, nor does it allow one to proportion causation between different factors;
  • stated that studies using epidemiological measures which do describe risk confirm that individuals with diabetes are several times for likely than non‑diabetics to develop adhesive capsulitis; and
  • further stated that:
  • if Ms Nathwani had sustained a significant traumatic injury to her shoulder in the course of her employment, he would accept that this could have been a contributing factor in the development of adhesive capsulitis, but the history, as presented to him, was not consistent with that;
  • the history, based on his assessment, was much more consistent with Ms Nathwani becoming aware of symptoms of underlying or constitutional adhesive capsulitis in the course of her normal lifting duties at work, but in the absence of any specific work-related injury; and
  • the presence of Ms Nathwani's diabetes, in addition to other risk factors such as her age and sex, meant that she was at a significantly increased risk of developing the condition independent of her employment.[152]

My assessment of the medical evidence

Ms Nathwani's submissions

  1. [112]
    In respect of Dr Wallace, Ms Nathwani submitted that:
  • apart from subtle variations with specifics and dates, Dr Wallace's reports outlined the progression of symptomatology and connection with work duties, which was consistent with her evidence;
  • Dr Wallace considered that:
  • the nature and conditions of the work that she was directed to do was a significant contributing factor to her adhesive capsulitis;
  • the adhesive capsulitis resulted from subacromial bursitis in respect of which her work was a significant contributing factor;
  • her Type 2 diabetes was not a significant contributing factor to the development of that condition and only accepted that there was an association between Type 2 diabetes and adhesive capsulitis;
  • Dr Wallace's view that the likelihood of her developing the conditions as diagnosed by him by reason of her diabetes was not materially different to the views expressed by Dr Thornley;
  • Dr Wallace's opinion was informed by his consideration of the type of work being undertaken with particular reference to the repetitive nature of that work which included Dr Wallace recording the weight he understood to have been involved, as well as making comments as to the awkward situations involved in the work or tasks which were related to overstocking; and
  • Dr Wallace, despite the opinions of Dr Dodd and Dr Lingwood, remained of the view that she suffered minor trauma as a result of the work activities which in turn led to the development of adhesive capsulitis and that while he accepted there was a risk that she would develop the condition in any event, he considered that in the context of her presentation, it was her work duties that caused her to suffer the condition.[153]
  1. [113]
    In respect of Dr Dodd, Ms Nathwani submitted that:
  • Dr Dodd's opinion was formed on the basis that there was no trauma which gave rise to her onset of symptomatology, there was no injury and there was no change in her duties and the development of her condition was related only to her doing her normal duties;
  • the premise upon which Dr Dodd expressed his opinion, namely, his understanding of her duties, was the information contained in Exhibit 17, which was different to what she was actually doing in terms of her work and duties and that had he been apprised of the actual duties performed by her, he may have approached the diagnostic process differently;
  • Dr Dodd ultimately conceded that if the work duties were consistent with what was described in her evidence, then work may have had more of a part to play in what he finally concluded;
  • Dr Dodd accepted that there was nothing more than an association between diabetes and adhesive capsulitis;
  • Dr Dodd accepted that the view he expressed was based on the supposition that there was no change in her duties or tasks, such that it was more likely that the condition would be associated with her diabetes rather than work; and
  • Dr Dodd did accept that the development of symptoms in an opposite joint can arise from a discrete disease process, and ultimately accepted that if her evidence about the manner in which she undertook her duties was accepted, then it would be a reasonable proposition to accept that her symptoms arose from '… a discrete disease process.'[154]
  1. [114]
    Ms Nathwani submitted that Dr Lingwood:
  • disagreed with the views of Dr Dodd and Dr Wallace in relation to the possible development of adhesive capsulitis as a result of minor trauma;
  • expressed the view that there was a strong association between diabetes and adhesive capsulitis being a view not shared by Dr Thornley, Dr Wallace or Dr Dodd;
  • thought there was no change in the duties that comprised the tasks performed by her;
  • disagreed with Dr Dodd in relation to the possibility of the condition developing in the left shoulder as a result of changing the manner in which duties were performed; and
  • accepted that any type of lifting is likely to cause symptoms, such that if there was an underlying adhesive capsulitis, then work activities involving lifting would cause symptoms.[155]
  1. [115]
    Ms Nathwani submitted that, in respect of Dr Thornley:
  • he noted that the prevalence of adhesive capsulitis within the population of those who suffer diabetes was, in his clinical experience, rare;
  • he concluded that the workplace systems of lifting was more likely to account for the development of her condition;
  • despite Dr Thornley considering he would defer to the opinion of an orthopaedic surgeon or specialist in occupational medicine in relation to the mechanism of an injury in the workplace, that did not detract from his opinion in relation to epidemiological views about the prevalence of adhesive capsulitis in the overall diabetic population;
  • although he considered that her diabetes was controlled sub-optimally, he did not consider that impacted at all on the likelihood of a causal connection between the condition and her injury; and
  • despite Dr Thornley accepting that if the facts upon which he based his opinion were not made out and that his conclusions would likewise not be necessarily appropriate, ultimately, he was not swayed in his opinion on the facts presented to him regarding his conclusion that the work practices contributed to a far higher degree than diabetes.[156]

The Regulator's submissions

  1. [116]
    The Regulator submitted that:
  • each of the relevant medical specialists, namely, Dr Lingwood, Dr Dodd and Dr Wallace, agreed that adhesive capsulitis is commonly an idiopathic disease;[157]
  • each agreed that diabetes is a 'significant risk factor' for adhesive capsulitis and there is an increased prevalence of adhesive capsulitis in patients with diabetes;[158]
  • Dr Wallace, Dr Lingwood and Dr Dodd agreed there was no evidence of specific incident or trauma to Ms Nathwani's left shoulder in her history;[159]
  • Dr Wallace's evidence was, essentially, that the work Ms Nathwani reported doing constituted repeated minor trauma sufficient to cause adhesive capsulitis, however, the weight to be given to his evidence is undermined:
  • by the opinion set out in his first report, namely, that Ms Nathwani's overuse or 'favouring' of the left shoulder following her right shoulder injury contributed to her left shoulder condition, because it is an opinion contradicted by Exhibit 12 (Chapter 33 of the American Medical Association Guides to the Evaluation of Disease and Injury Causation, second edition ('the AMA Guides') and by the opinions of Dr Dodd and Dr Lingwood; and
  • by Dr Wallace's qualification, in oral evidence, of his opinion by reference to 'repeated minor trauma';[160]
  • Dr Dodd and Dr Lingwood concurred that Ms Nathwani's left shoulder adhesive capsulitis is a natural disease process, unrelated to her work and that the reporting of pain symptoms when performing tasks at work is not evidence that those tasks caused the underlying disease or injury; but instead, citing Croning v Workers' Compensation Board of Queensland ('Croning'),[161] contended that Ms Nathwani's employment was the setting in which her adhesive capsulitis emerged;[162]
  • Dr Dodd and Dr Lingwood did not opine that Ms Nathwani's diabetes 'caused' her adhesive capsulitis, rather, Ms Nathwani's diabetes was a significant risk factor to consider in a known idiopathic disease process; and they both agreed that the absence of any identified incident or trauma supported the conclusion that work was not a significant contributing factor to the onset of adhesive capsulitis in Ms Nathwani's case;[163]
  • in this context, the evidence relating to Ms Nathwani's diabetes is not particularly useful other than to note that there is a higher prevalence of adhesive capsulitis in patients like Ms Nathwani who have diabetes;[164] and
  • Dr Thornley's evidence should be approached with caution because his report contains opinion evidence clearly beyond the scope of his expertise,[165] such that to the extent Dr Thornley offers any opinion on the mechanism of injury or causation of Ms Nathwani's adhesive capsulitis, that opinion should be disregarded and given no weight as it is not a proper matter of qualified expert evidence.[166]
  1. [117]
    In summary, the Regulator submitted that:
  • by citing Rowe v Q-Comp,[167] it is well-established that a worker is not best placed to identify the cause of an injury or disease and that the medical evidence should be preferred;
  • each of the experts qualified to provide an opinion as to the cause of adhesive capsulitis, namely, Dr Wallace, Dr Dodd and Dr Lingwood, recognised that adhesive capsulitis is an idiopathic disease;
  • the Commission should prefer the expert medical evidence of Dr Lingwood and Dr Dodd to the evidence of Dr Wallace;
  • on that basis, the Commission cannot be satisfied on the evidence that Ms Nathwani's adhesive capsulitis arose out of, or in the course of, her employment; and
  • even if Ms Nathwani's evidence that she first noticed pain symptoms in her left shoulder in the course of her work duties was accepted, the Commission would nevertheless accept the evidence of Dr Dodd and Dr Lingwood and find that work was not a significant contributing factor.[168]
  1. [118]
    In Ribeiro v Workers' Compensation Regulator,[169] I summarised the established principles to be considered where there is competing medical evidence about whether there is a causal connection between an injury and a worker's employment.[170] Relevantly, they are:
  • the primary duty of a tribunal is to find ultimate facts, and so far as is reasonably possible to do so, to look not merely to the expertise of the expert witnesses, but to examine the substance of the opinion expressed; and in doing so, the tribunal may not accept the opinion of an expert witness, and in cases where the experts differ, the tribunal will 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;
  • a qualified medical practitioner may, as an expert, express an opinion as to the nature and cause, or probable cause of an injury, but it is for the tribunal to weigh and determine the probabilities, and in doing so, the tribunal may be assisted by the medical evidence; however, that task is for the tribunal not the witnesses and the tribunal must ask itself whether, on the whole of the evidence, it is satisfied on the balance of probabilities of the fact;
  • whether a worker has suffered an injury within the meaning of the Act is a question of fact which is not necessarily resolved by acceptance or rejection of medical testimony; thus, the tribunal may consider the medical evidence and by a course of reasoning which, combined with common sense and the application of logic to physiological facts infer, on the balance of probabilities, a causal connection with an injury;
  • a finding of a causal connection may be open even if there is no medical evidence to support it;
  • where medical science is prepared to say it is possible there is such a causal connection, then the tribunal, after examining the lay evidence, may decide that it is probable there is such a connection;
  • when faced with competing opinions, which are both supported by sound reasoning, the tribunal's function is to decide the issue at hand and that may require the tribunal to accept one opinion over the other, and in doing so the tribunal would not normally substitute its opinion on the medical diagnosis for that of the experts and give scientific medical reasons for doing so; and the tribunal's persuasion to prefer one opinion over another may well be based on factors such as that the expert's opinion was tested under cross‑examination, or that the opinion was given by a person eminent in his or her field, or that the opinion was supported by clinical observations;
  • other guiding considerations include the expert's qualifications, impressiveness and cogency of reasoning and exposition (not always a decisive ground), preparation for and application to the problem in hand, and the extent to which the witness had a correct grasp of the basic, objective facts relevant to the problem; and
  • if the factual underpinning of the report is disturbed by, for example, the rejection by the tribunal of parts of that underpinning, then it follows that the report itself is weakened to that extent.[171]
  1. [119]
    In my view, the contest, on the specialist medical evidence, was whether Ms Nathwani's Type 2 diabetes was the significant contributing factor to her adhesive capsulitis such that, because of her diabetes, Ms Nathwani would have suffered from adhesive capsulitis in any event. The alternative is whether Ms Nathwani's adhesive capsulitis arose out of, or in the course of, her employment where her employment and, in particular, the more frequent lifting above shoulder height she was performing in respect of stock work from 2017, was a significant contributing factor to her adhesive capsulitis.

Type 2 diabetes and adhesive capsulitis

  1. [120]
    Adhesive capsulitis results in progressive painful restriction in range of movement.[172]
  1. [121]
    As I understand their evidence, Dr Thornley, Dr Wallace, Dr Dodd and Dr Lingwood were all of the view that a person with diabetes has an increased risk of developing adhesive capsulitis. Dr Lingwood seemed to put the connection at its highest stating that studies, using epidemiological measures which describe risk, confirm that individuals with diabetes are several times more likely than non-diabetics to develop adhesive capsulitis.
  1. [122]
    In terms of whether Ms Nathwani's adhesive capsulitis arose out of, or in the course of, her employment and that her employment was a significant contributing factor to her adhesive capsulitis, I accept the Regulator's submissions that Dr Thornley's evidence should be approached with caution because his report contains opinion evidence beyond the scope of his expertise. In cross-examination, Dr Thornley:
  • stated that as part of his specialist training in endocrinology, he did not undertake any training or education in relation to the diagnosis and treatment of orthopaedic injury or illness, but he did say that he was aware that there was an increased prevalence of shoulder issues in patients with diabetes; and
  • conceded that to the extent he was asked to give an opinion about the cause of musculoskeletal injury, he would defer to the opinion of an orthopaedic surgeon to the extent that the opinion might diverge from his.[173]
  1. [123]
    Furthermore, as I referred to above, Dr Thornley did not directly examine Ms Nathwani and gave his opinion by conducting a file review.
  1. [124]
    Dr Wallace and Dr Dodd are both Orthopaedic Surgeons.
  1. [125]
    Dr Wallace was of the opinion that Ms Nathwani's work was a significant contributing factor to her adhesive capsulitis and that if it was not for her work, she would have been unlikely to develop adhesive capsulitis.
  1. [126]
    Dr Wallace concluded his supplementary report by opining:

Were it not for the nature and conditions of Ms Nathwani's work and the increased workload placed upon her left shoulder, she would in any case have been between 18% and 20% risk of developing adhesive capsulitis at some time in her life. It remains my opinion that the nature and conditions of her work has precipitated and is the most significant causal factor of her current condition.[174]

  1. [127]
    In cross-examination, Dr Wallace:
  • agreed that, in giving her history, Ms Nathwani did not give a history of any specific injury on a specific date and described her injury as an over‑period‑of‑time type of injury beginning around July 2017;[175]
  • in her history, when Ms Nathwani said 'seized' it meant to him that it had become painful and difficult to move, painful and stiff and that Ms Nathwani said she continued to work for a period until such time as she lost movement in her left shoulder which is when she saw her General Practitioner and was referred for an X‑ray and ultrasound;[176]
  • agreed that the most common adhesive capsulitis emerges spontaneously and without any known cause, and that it is an idiopathic condition where there is often a history of minor trauma, although there may not be;[177]
  • agreed that there was a higher prevalence of adhesive capsulitis in Type 2 diabetic patients than in non-diabetic patients;[178]
  • agreed that when assessing the causation of adhesive capsulitis, diabetes was a significant risk factor;[179] and
  • after being referred to Chapter 33 of the AMA Guides:[180]
  • confirmed his opinion that recurrent minor trauma to Ms Nathwani's left upper limb precipitated her adhesive capsulitis; and
  • opined that the recurrent minor trauma that Ms Nathwani had suffered was a result of increased use of the left shoulder because of the right shoulder injury which had precipitated adhesive capsulitis in her case.[181]
  1. [128]
    Dr Dodd opined that:
  • employment was not a significant contributing factor to Ms Nathwani's injury;
  • Ms Nathwani had resolving adhesive capsulitis, which was more likely to be related to Type 2 diabetes, rather than the work injury; and
  • favouring is not regarded as a cause for joint symptoms.[182]
  1. [129]
    In cross-examination, it was suggested to Dr Dodd that Ms Nathwani gave evidence that there was a change in the way she performed her duties in that she spent a greater proportion of time doing repacking and restocking, she was doing more work that required significant reaching, overreaching and lifting and that she was spending more time lifting heavy cartons and crates of milk from above shoulder height down to the ground.[183] Dr Dodd was asked if that was consistent with what he understood to be her normal duties. Dr Dodd replied: 'Absolutely not', because having regard to the Functional Task Analysis (Exhibit 17) there was nothing there about lifting crates of milk from above shoulder height.[184]
  1. [130]
    Dr Dodd stated that Ms Nathwani did not tell him that she was performing the tasks (referred to in the preceding paragraph) in terms of time, weights and repetition.[185]
  1. [131]
    In further cross-examination, Dr Dodd:
  • accepted that if Ms Nathwani was performing the work as described in paragraph [129], it was possible his diagnostic process would have been different and that if she was doing that work repetitively he would consider that the workplace may have had more of a part to play than what he finally concluded;[186] and
  • accepted that if Ms Nathwani, after her right shoulder injury, had a fear of reinjury so that instead of taking cartons of milk and soft drink from above shoulder height down onto her right shoulder and then transferring them on the ground, she would move them onto her left shoulder placing more weight on her left arm and then transferred them to the ground, then it was a reasonable supposition that there was a discrete left shoulder condition or injury suffered by Ms Nathwani, not because of overuse, but simply because of the way in which she was undertaking her duties.[187]
  1. [132]
    In cross-examination, Dr Dodd also:
  • stated that the delay in Ms Nathwani not seeking medical treatment until December 2017 was adopted by him in forming his opinion regarding the attribution of diabetes to Ms Nathwani's adhesive capsulitis;[188]
  • accepted that minor trauma can lead to adhesive capsulitis;[189]
  • stated that Ms Nathwani did not suffer a specific injury, she developed pain at work and there was no history of trauma, minor or otherwise;[190]
  • when it was put to him that minor trauma could be a reason why Ms Nathwani started to experience pain, stated that trauma means injury and that Ms Nathwani did not have an injury, where something fell on her or she fell on something but, rather, Ms Nathwani developed pain in the shoulder on reaching at work;[191]
  • stated that it was his impression that after Ms Nathwani recovered from her right shoulder injury, Ms Nathwani informed him that she was doing her normal duties when she began to develop pain in her left shoulder;[192] and
  • agreed that he used the document headed 'Duty Register Calstores Customer Service Attended Assessed at Rose Bay' (Exhibit 17) in forming his view about the normal duties being performed by Ms Nathwani, but stated that if the duties performed by Ms Nathwani were different to those depicted in Exhibit 17, that would not change the way he approached the diagnostic process because he got the history from Ms Nathwani as to what she was doing exactly which included that, in the performance of her normal duties, she was doing some lifting and reaching.[193]
  1. [133]
    Having regard to the competing opinions between Dr Wallace and Dr Dodd, I prefer the evidence of Dr Wallace. It seems to me that Dr Wallace had a better knowledge of:
  • the work actually being performed by Ms Nathwani at the service station; and
  • the change in the way Ms Nathwani performed her work after her right shoulder injury, namely, by using her left shoulder.[194]
  1. [134]
    Dr Dodd, on the other hand, based his opinion on his view that Ms Nathwani was performing normal duties at the time she began to experience left shoulder symptoms, being normal duties of the kind described in Exhibit 17, whereas the duties Ms Nathwani was performing after the beginning of 2017 were of the kind put to Dr Dodd in cross‑examination as referred to in paragraph [129] of these reasons.
  1. [135]
    Furthermore, the concession Dr Dodd made in cross-examination (referred to in paragraph [131] above), in my view, is more consistent with the opinion given by Dr Wallace.
  1. [136]
    In cross-examination, Dr Lingwood:
  • opined that the weight of evidence properly suggests that more significant trauma is associated with adhesive capsulitis as a potential risk factor and that the classic types of injuries which are often referred to are tears to the rotor cuff and fractures around the humerus, such that it is more significant trauma that is related to frozen shoulder rather than minor trauma and that it was very unlikely, in isolation, that minor trauma could give rise to adhesive capsulitis;[195]
  • stated that adhesive capsulitis is a condition which occurs, very commonly, idiopathically, there is no identifiable cause or trigger and that if you look for and try to ascribe a cause for frozen shoulder in Ms Nathwani's case, he was of the opinion that it would relate to the underlying diabetes given the strong association with that condition rather than a more minor problem with the shoulder, such as bursitis which was shown on the radiology;[196]
  • disagreed with the notion that non-specific repetitive use of the shoulder was likely to have contributed significantly to adhesive capsulitis in Ms Nathwani's case;[197]
  • accepted that if Ms Nathwani was, from the end of 2016 or the beginning of 2017, doing work of the kind described in paragraphs [67] and [68] of these reasons, on occasions over three or five hours or a whole shift, then that type of exposure might result in a flare of rotor cuff tendinosis or subacromial bursitis but not adhesive capsulitis;[198] and
  • stated that if because of Ms Nathwani's right shoulder injury, she changed the way she did her unpacking duties, by favouring her left shoulder, it would not change his opinion because of the research including that referred to in Chapter 33 of the AMA Guides.[199]
  1. [137]
    However, Dr Lingwood is not an Orthopaedic Surgeon. Furthermore, similar to that of Dr Dodds, who is an Orthopaedic Surgeon, Dr Lingwood, as confirmed in his second report, stated that his opinion was based on the history provided to him and that there was no report of any injury or traumatic incident sustained by Ms Nathwani in the course of her work and that her duties were noted to involve regular packing and unpacking of stock.[200] The evidence given by Ms Nathwani was that her work did change in 2017 where she was performing more stock work involving lifting and reaching above shoulder height.
  1. [138]
    Furthermore, in my opinion, care must be taken regarding the Regulator's submissions about the decision in Croning.[201] Croning was a case about a psychological injury. Croning was referred to in JBS Australia Pty Ltd v Q-COMP ('JBS').[202] JBS was a case involving a physical injury of which there was an aggravation of an underlying condition. However, as I read the third paragraph of the decision in JBS, the principle in Croning was not the reason for that decision. In Croning, the significant contributing factor to the worker's injury was the worker's own difficulty in accepting the working conditions, such that the worker's employment had not led to his injury, rather it was the worker's almost obsessive desire, as a teacher, to implement his own preferred system of tuition.[203] The reason for the decision in JBS was that there was evidence of an exacerbation of the worker's degenerative knee condition which occurred at work.[204] For these reasons, I am not persuaded that Croning is authority for the proposition put by the Regulator.
  1. [139]
    For the reasons I have given in paragraphs [121] to [138], I prefer the evidence of Dr Wallace. On the basis of Dr Wallace's evidence, I am of the view that, on the balance of probabilities, Ms Nathwani's left shoulder adhesive capsulitis arose out of, or in the course of, her employment.

If the adhesive capsulitis injury to Ms Nathwani's left shoulder did arise out of, or in the course of, her employment, was Ms Nathwani's employment a significant contributing factor to that injury?

  1. [140]
    In addition to an injury having to arise out of, or in the course of, employment, the requirement that the employment is a significant contributing factor to the injury requires that the exigencies of the employment must contribute in some significant way to the occurrence of the injury.[205]
  1. [141]
    Ms Nathwani submitted that if a tribunal seeks to reject the notion that work was a significant contributing factor to the development of an injury or condition, there should be some alternative cause that could be identified with cogent evidence.[206] The authority cited in support of that proposition was Parks v Workers' Compensation Regulator.[207] The Regulator did not challenge that submission.[208]
  1. [142]
    Assuming that principle, as submitted by Ms Nathwani, to be sound, on the evidence, the only other issue could be Ms Nathwani's Type 2 diabetes.
  1. [143]
    For the same reasons I have given in paragraphs [121] to [138], I find that Ms Nathwani's employment as a CSA at the service station was a significant contributing factor to the adhesive capsulitis injury she suffered to her left shoulder.

Did Ms Nathwani suffer an injury within the meaning of s 32(3)(b)(iii) of the Act?

  1. [144]
    Ms Nathwani submitted that:
  • if it was accepted that diabetes existed in the background of the development of the condition of adhesive capsulitis, it was '… important to consider both s. 32(3) and s.32(4)' of the Act; and
  • the Act provides that a condition can fall within the terms of an injury if it can be regarded as a medical condition that became a personal injury because of an aggravation.[209]
  1. [145]
    Although, given my findings above, it is not necessary to consider this submission, I will, for the sake of completeness, determine this aspect of Ms Nathwani's appeal.
  1. [146]
    At the time of Ms Nathwani's injury to her left shoulder, s 32(3)(b)(iii) of the Act provided that an injury included an aggravation (if the aggravation arose out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation) of a medical condition, other than a psychiatric or psychological disorder, if the condition became a personal injury or disease because of the aggravation.
  1. [147]
    Section 32(4) of the Act provided that for s 32(3)(b), to remove any doubt, it was declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
  1. [148]
    Ms Nathwani's statement of facts and contentions merely contended that her left shoulder injury '… is one that arose in the course of her employment and her employment was a significant contributing factor in accordance with' s 32 of the Act. Ms Nathwani did not contend, in the alternative, that she suffered an injury within the meaning of s 32(3)(b)(iii) of the Act.
  1. [149]
    Despite this, the Regulator submitted that the first issue for determination was whether Ms Nathwani's condition '… or some aggravation of the condition' arose out of, or in the course of, her employment. On this basis, I will consider whether Ms Nathwani suffered an injury within the meaning of s 32(3)(b)(iii) of the Act.
  1. [150]
    Ms Nathwani submitted that:
  • the Act provides that a condition can fall within the terms of an injury if it can be regarded as a medical condition that became a personal injury because of an aggravation and that the facts and history provided by her are consistent with such a finding;[210] and
  • it was clear that there was a condition of diabetes subsuming any other physiological issues, however, the history of the development of her diabetes was entirely consistent with findings to the effect that her diabetes became an injury through the aggravation of the shoulder condition as a result of changes to work processes.[211]
  1. [151]
    As best as I can make out, it seems that Ms Nathwani is submitting that:
  • her diabetes became an injury within the meaning of s 32(3)(b)(iii) of the Act through the aggravation of her adhesive capsulitis as a result of the changes to the work processes; and
  • the aggravation arose out of, or in the course of, her employment and her employment was a significant contributing factor to the aggravation.
  1. [152]
    I cannot accept this submission. There was no medical evidence that tends to support the contention that Ms Nathwani's diabetes became a personal injury because of the aggravation of her adhesive capsulitis as a result of the changes to the work processes.

Conclusion

  1. [153]
    The issues for determination in this matter were:
  • did the adhesive capsulitis injury to Ms Nathwani's left shoulder arise out of, or in the course of, her employment? and, if so
  • was Ms Nathwani's employment a significant contributing factor to that injury?
  1. [154]
    For the reasons I have given, the adhesive capsulitis Ms Nathwani suffered in her left shoulder arose out of, or in the course of, her employment and her employment was a significant contributing factor to that injury.
  1. [155]
    The review decision of the Regulator should be set aside and a decision that Ms Nathwani has an injury within the meaning of the Act substituted in its place.
  1. [156]
    I will hear the parties as to costs.

Orders

  1. [157]
    I make the following orders:
  1. Pursuant to s 558(1)(c) of the Workers' Compensation and Rehabilitation Act 2003:
  1. (a)
    the review decision of the Respondent dated 29 August 2019 is set aside; and
  1. (b)
    another decision is substituted, namely, that the Appellant suffered an injury within the meaning of s 32 of the Workers' Compensation and Rehabilitation Act 2003.
  1. Pursuant to r 41(1) of the Industrial Relations (Tribunals) Rules 2011:
  1. (a)
    the parties are to exchange and file written submissions on the costs of the hearing (of no more than two (2) pages, 12‑point font size, line and a‑half spacing with numbered paragraphs and pages) by 4.00 pm on Monday, 11 October 2021; and
  1. (b)
    unless otherwise ordered, the decision on costs be determined on the papers.

Footnotes

[1] Ms Nathwani's Statement of Facts and Contentions filed on 17 December 2019 ('Ms Nathwani's contentions'), page 2/3.

[2] Ms Nathwani's contentions, Annexure A, para. II.

[3] Ms Nathwani's contentions, Annexure A, para. III.

[4] Ms Nathwani's contentions, Annexure A, para. IV.

[5] Ms Nathwani's contentions, page 2/3, para. 3).

[6] Ms Nathwani's contentions, page 2/3, para. 4).

[7] The Workers Compensation Regulator's statement of facts and contentions filed on 25 February 2020 ('the Regulator's contentions'), Attachment 2, para. 2.

[8] The Regulator's contentions, Attachment 2, para. 3.

[9] Workers' Compensation and Rehabilitation Act 2003 s 32(1)

[10] Workers' Compensation and Rehabilitation Act 2003 s 32(1)(a).

[11] Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461, [27] (Martin J, President).

[12] State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne [2003] ICQ 9; (2003) 172 QGIG 1447, 1448 (President Hall).

[13] Kavanagh v Commonwealth [1960] HCA 25; (1960) 103 CLR 547, 558-559 (Fullagar J).

[14] Avis v WorkCover Queensland [2000] QIC 67; (2000) 165 QGIG 788, 788 (President Hall).

[15] Theiss Pty Ltd v Q-Comp [2010] ICQ 27, [3] (President Hall).

[16] Ms Nathwani's submissions filed on 24 December 2021 ('Ms Nathwani's submissions'), para. 83.

[17] The Regulator's submissions filed on 27 January 2021 ('the Regulator's submissions'), paras. 79-81.

[18] The Regulator's submissions, para. 58.

[19] T 1-9, ll 30-38.

[20] T 1-17, ll 11-30.

[21] Ms Nathwani's submissions, para. 7 and the Regulator's submissions, para. 10.

[22] T 1-23, ll 23-43.

[23] T 2-24, l 42 to T 2-25, l 13.

[24] T 1-25, ll 1-8.

[25] T 1-25, ll 10-14.

[26] T 1-15, ll 16-19.

[27] T 1-15, ll 21-45.

[28] T 1-16, ll 24-35.

[29] T 1-16, ll 43-46.

[30] T 1-20, ll 26-40.

[31] T 1-25, ll 25-30.

[32] T 1-25, ll 32-36.

[33] T 1-25, l 38 to T 2-26, l 3.

[34] T 1-26, ll 13-38.

[35] T 1-27, ll 18-28.

[36] T 2-4, l 21 to T 2-5, l 8.

[37] T 1-39, l 35 to T 1-42, l 8.

[38] T 1-42, ll 30-46.

[39] T 2-5, ll 11-17.

[40] T 2-5, ll 19-25.

[41] T 2-5, l 27 to T 2-6, l 7.

[42] T 2-6, ll 9-23.

[43] T 1-27, ll 30-31.

[44] T 1-28, ll 21-27.

[45] T 2-8, ll 10-35.

[46] T 2-8, ll 40-45.

[47] T 2-19, ll 37-47.

[48] T 2-9, ll 1-13.

[49] T 2-11, ll 1-7.

[50] T 2-12, ll 18-23.

[51] T 2-12, ll 34-41.

[52] T 2-65, ll 21-43.

[53] T 2-26, ll 1-40.

[54] Exhibit 1, page 75.

[55] T 2-31, ll 4-15.

[56] Exhibit 1, page 74 and T 2-31, ll 21-41.

[57] Exhibit 1, page 74.

[58] T 2-32, ll 4-14.

[59] Exhibit 1, page 72.

[60] Exhibit 1, page 72.

[61] T 2-34, ll 34-36.

[62] Exhibit 1, page 69.

[63] T 2-34, ll 40-43.

[64] T 2-34, l 44 to T 2-35, l 2.

[65] Exhibit 1, page 63.

[66] Exhibit 1, pages 60-61.

[67] Exhibit 1, page 59.

[68] T 2-35, ll 33-45 and T 2-37, ll 17-31.

[69] T 2-41, ll 21-38.

[70] T 2-41, ll 40-44.

[71] T 2-42, ll 1-6.

[72] T 2-41, ll 36-38.

[73] Exhibit 9, page 2.

[74] Exhibit 9, page 3.

[75] T 2-46, l 23 to T 2-47, l 12.

[76] T 2-41, ll 33-34.

[77] Exhibit 13, page 2.

[78] T 2-44, ll 3-8 and 14-19.

[79] T 2-44, ll 10-12.

[80] T 2-44, ll 21-23.

[81] T 2-44, ll 25-30.

[82] Exhibit 15, page 2.

[83] T 2-42, ll 16-37.

[84] T 2-42, l 39 to T 2-43, l 6.

[85] Ms Nathwani's submissions, paras. 23-28.

[86] The Regulator's submissions, para. 59.

[87] The Regulator's submissions, para. 59.

[88] Ms Nathwani's submissions, para. 10 and the Regulator's submissions, para. 10.

[89] The Regulator's submissions, para. 11.

[90] T 2-27, ll 13-19.

[91] T 2-25, ll 11-42.

[92] T 2-25, ll 44 to T 2-26, l 2 and the Regulator's submissions, para. 12.

[93] T 1-14, ll 14-21.

[94] This seems to be an error in the transcription.

[95] T 1-14, l 23 to T 1-15, l 2.

[96] T 2-15, ll 27-42.

[97] T 1-15, ll 5-7.

[98] Ms Nathwani's submissions, para. 17.

[99] Ms Nathwani's submissions, para. 20.

[100] Ms Nathwani's submissions, paras. 30-31.

[101] The Regulator's submissions, para. 58.

[102] The Regulator's submissions, para. 58.

[103] The Regulator's submissions, para. 60.

[104] The workers' compensation medical certificate was obtained in February 2019 - Exhibit 8.

[105] The Regulator's submissions, para. 61.

[106] The Regulator's submissions, para. 62.

[107] The Regulator's submissions, para. 63.

[108] The Regulator's submissions, para. 63.

[109] The Regulator's submissions, para. 64.

[110] The Regulator's submissions, para. 65.

[111] Exhibit 5, second page, second paragraph.

[112] T 2-46, ll 8-20.

[113] T 2-39, ll 24-47.

[114] T 2-44, ll 3-19.

[115] Ms Nathwani's submissions, para. 19.

[116] Exhibit 1, page 72.

[117] Exhibit 1, pages 71-72.

[118] Exhibit 1, page 69.

[119] Exhibit 1, page 69.

[120] Exhibit 1, pages 68-69.

[121] Exhibit 1, pages 63-64.

[122] Exhibit 1, page 59.

[123] The Regulator's submissions, para. 60.

[124] T 1-25, l 44 to T 1-26, l 3.

[125] T 1-27, ll 22.

[126] T 1-27, ll 22-24.

[127] T 1-27, ll 26-31.

[128] T 2-27, ll 35-36.

[129] T 1-26, ll 26-38.

[130] T 2-48, ll 13-21.

[131] T 2-48, ll 23-34.

[132] T 2-49, ll 31-41.

[133] The Regulator's submissions, para. 60.

[134] T 2-12, ll 37-38.

[135] T 2-12, ll 1-23.

[136] Exhibit 1, page 285.

[137] Exhibit 5, first page.

[138] T 1-51, ll 22-23.

[139] Exhibit 5, third page.

[140] Exhibit 5, third page.

[141] Exhibit 9, page 4.

[142] Exhibit 9, pages 6 and 7.

[143] Exhibit 10, pages 1 and 2.

[144] Exhibit 13, page 5.

[145] Exhibit 13, page 5.

[146] Exhibit 13, page 5.

[147] T 2-74, l 44 to T 2-75, l 22.

[148] Exhibit 15, page 2.

[149] Exhibit 15, page 7.

[150] Exhibit 15, page 9.

[151] Exhibit 16, page 1.

[152] Exhibit 16, page 3.

[153] Ms Nathwani's submissions, paras. 37-39.

[154] Ms Nathwani's submissions, paras. 40-44.

[155] Ms Nathwani's submissions, paras. 45-46.

[156] Ms Nathwani's submissions, paras. 73-75.

[157] The Regulator's submissions, para. 67.

[158] The Regulator's submissions, para. 67.

[159] The Regulator's submissions, para. 68.

[160] The Regulator's submissions, para. 69.

[161] Citing Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100 ('Croning') as applied in JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13 ('JBS') [3] (President Hall).

[162] The Regulator's submissions, para. 70.

[163] The Regulator's submissions, para. 72.

[164] The Regulator's submissions, para. 73.

[165] Citing Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [85] (Heydon JA).

[166] The Regulator's submissions, paras. 75-76.

[167] [2009] QIRC 106; (2009) 190 QGIG 93, 98 (Commissioner Fisher).

[168] The Regulator's submissions, paras. 78-81.

[169] [2019] QIRC 203.

[170] Ibid [43]-[55].

[171] Citations omitted.

[172] Exhibit 6, page 1 of 14.

[173] T 1-46, l 38 to 1-47, l 7.

[174] Exhibit 10, page 2.

[175] T 2-55, ll 33-38.

[176] T 2-56, ll 12-22.

[177] T 2-57, ll 15-20.

[178] T 2-57, ll 30-34.

[179] T 2-57, ll 44-46.

[180] Chapter 33 of the AMA Guides is headed 'Evaluating Causation of Favouring for the Opposite Limb'. Page 766 relevantly provides:

In summary, the articles reviewed do not support "favouring" as a reasonable cause for development of symptoms in the contralateral shoulder.

[181] T 2-60, l 46 to T 2-61, l 8.

[182] Exhibit 13, page 5.

[183] These propositions put to Dr Dodd were generally consistent with Ms Nathwani's evidence‑in‑chief summarised in paragraphs [22]-[23] and [67]-[68] of these reasons.

[184] T 2-78, ll 17-29.

[185] T 2-78, ll 41-43.

[186] T 2-78, l 45 to T 2-80, l 6.

[187] T 2-81, l 44 to T 2-82, l 42. These propositions put to Dr Dodd were generally consistent with Ms Nathwani's evidence-in-chief summarised in paragraphs [22], [23] and [67]-[68] of these reasons.

[188] T 2-76, ll 1-15.

[189] T 2-76, ll 28-33.

[190] T 2-76, ll 35-38.

[191] T 2-76, ll 40-43.

[192] T 2-77, ll 20-25.

[193] T 2-78, ll 1-15.

[194] Exhibit 9, page 3.

[195] T 2-88, ll 21-35.

[196] T 2-89, ll 26-39.

[197] T 2-89, l 44 to T 2-90, l 2.

[198] T 2-95, l 6 to T 2-96, l 15 and T 2-96, l 43 to T 2-97, l 20.

[199] T 2-96, ll 6-39.

[200] Exhibit 16, page 1.

[201] Croning (n 161).

[202] JBS (n 1612) [3].

[203] Simon Blackwood (Workers' Compensation Regulator) v Civeo Pty Ltd and Anor [2016] ICQ 001, [13]‑[15] (Martin J, President).

[204] JBS (n 161) [7], [9] and [10].

[205] Newberry v Suncorp Metway Insurance Ltd [2006] QCA 48; (2006) 1 Qd R 519, [27] (Keane JA, de Jersey CJ at [1] and Muir J at [49] agreeing).

[206] Ms Nathwani's submissions, para. 52.

[207] [2018] QIRC 147 (Industrial Commissioner Knight). Although, no paragraph of this decision was cited for this proposition, it seems the relevant paragraph is [215].

[208] The Regulator's submissions, para. 10.

[209] Ms Nathwani's submissions, para. 76.

[210] Ms Nathwani's submissions, para. 76.

[211] Ms Nathwani's submissions, para. 76.

Close

Editorial Notes

  • Published Case Name:

    Nathwani v Workers' Compensation Regulator

  • Shortened Case Name:

    Nathwani v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 325

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    21 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Avis v WorkCover Queensland (2000) 165 QGIG 788
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 788
Cite 2 - (2000) 165 QGIG 788
Avis v WorkCover Queensland [2000] QIC 67
2 citations
Jump To
Cite 1 - [2000] QIC 67
Cite 2 - [2000] QIC 67
Church v Simon Blackwood (Workers' Compensation Regulator) (2015) 252 IR 461
2 citations
Jump To
Cite 1 - (2015) 252 IR 461
Cite 2 - (2015) 252 IR 461
Church v Workers' Compensation Regulator [2015] ICQ 31
2 citations
Jump To
Cite 1 - [2015] ICQ 31
Cite 2 - [2015] ICQ 31
Croning v Workers' Compensation Board of Queensland (1997) 156 QGIG 100
2 citations
Jump To
Cite 1 - (1997) 156 QGIG 100
Cite 2 - (1997) 156 QGIG 100
Glen Rowe v Q-COMP [2009] 190 QGIG 93
2 citations
Jump To
Cite 1 - [2009] 190 QGIG 93
Cite 2 - [2009] 190 QGIG 93
JBS Australia Pty Ltd v Q-COMP [2013] ICQ 13
4 citations
Jump To
Cite 1 - [2013] ICQ 13
Cite 2 - [2013] ICQ 13
Cite 3 - [2013] ICQ 13
Cite 4 - [2013] ICQ 13
Kavanagh v The Commonwealth (1960) 103 CLR 547
2 citations
Jump To
Cite 1 - (1960) 103 CLR 547
Cite 2 - (1960) 103 CLR 547
Kavanagh v The Commonwealth [1960] HCA 25
2 citations
Jump To
Cite 1 - [1960] HCA 25
Cite 2 - [1960] HCA 25
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
Makita (Australia) Pty Ltd v Sprowles (2001) NSWCA 305
2 citations
Jump To
Cite 1 - (2001) NSWCA 305
Cite 2 - (2001) NSWCA 305
Newberry v Suncorp Metway Insurance Ltd[2006] 1 Qd R 519; [2006] QCA 48
4 citations
Jump To
Cite 1 - [2006] QCA 48
Cite 2 - [2006] QCA 48
Cite 3 - [2006] 1 Qd R 519
Cite 4 - [2006] 1 Qd R 519
Parks v Workers' Compensation Regulator [2018] QIRC 147
2 citations
Jump To
Cite 1 - [2018] QIRC 147
Cite 2 - [2018] QIRC 147
Ribeiro v Workers' Compensation Regulator [2019] QIRC 203
3 citations
Jump To
Cite 1 - [2019] QIRC 203
Cite 2 - [2019] QIRC 203
Cite 3 - [2019] QIRC 203
Rowe v Q-COMP [2009] QIRC 106
2 citations
Jump To
Cite 1 - [2009] QIRC 106
Cite 2 - [2009] QIRC 106
State of Queensland (Queensland Health) v Q-Comp & Coyne [2003] ICQ 9
2 citations
Jump To
Cite 1 - [2003] ICQ 9
Cite 2 - [2003] ICQ 9
State of Queensland v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447
2 citations
Jump To
Cite 1 - (2003) 172 QGIG 1447
Cite 2 - (2003) 172 QGIG 1447
Theiss Pty Ltd v Q-COMP [2010] ICQ 27
2 citations
Jump To
Cite 1 - [2010] ICQ 27
Cite 2 - [2010] ICQ 27
Workers' Compensation Regulator v Civeo Pty Ltd [2016] ICQ 1
2 citations
Jump To
Cite 1 - [2016] ICQ 1
Cite 2 - [2016] ICQ 1

Cases Citing

Case NameFull CitationFrequency
Nathwani v Workers' Compensation Regulator (No. 2) [2021] QIRC 3512 citations
1

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