Govindan v Capital Safety Group (Australia) Pty Limited [2022] NSWPIC 588

WORKERS COMPENSATION - Claim for permanent impairment with respect to three consequential conditions allegedly arising from accepted left shoulder injury; applicant alleges right shoulder and cervical spine consequential conditions due to overuse and gastro-intestinal condition due to ingestion of pain killing medication; Held - the applicant suffered a consequential condition to his right upper extremity (shoulder) due to overuse as a result of his left shoulder injury; the evidence does not support a finding of consequential condition to the cervical spine; rather, such evidence as there is supports a finding of referred pain from the right shoulder condition to the neck; award for the respondent on the claim for cervical spine consequential condition; the evidence does not support the finding of a causal link between the taking of pain killers and any gastro-intestinal issues in the applicant; award for the respondent on the claim for consequential condition to the digestive system; claim for permanent impairment compensation to the right upper extremity (shoulder) remitted to the President for referral to a Medical Assessor.

1. Leave is granted without objection to the applicant to claim consequential conditions to the cervical spine, right upper extremity and digestive system and to delete the claim for injury to those body systems.
2. Leave is granted without objection for the applicant to discontinue the claim for permanent impairment compensation to the left shoulder.
3. The respondent suffered an accepted injury to his left upper extremity (shoulder) in the course of his employment with the respondent on 10 May 2011.
4. As a result of the injury referred to in [3] above, the applicant suffered a consequential condition to his right upper extremity (shoulder).
5. Award for the respondent on the claim for consequential conditions to the cervical spine and digestive system.
6. The claim for whole person impairment in relation to the right upper extremity is remitted to the President for referral to a Medical Assessor to determine the degree of permanent impairment arising from the following:

Body System Referred: Right upper extremity (shoulder) (consequential condition)

1. The documents to be referred to the Medical Assessor to assist with their determination are to include the following:

(a) Application to Resolve a Dispute and attachments; > > (b) Reply and attachments, and > > (c) respondent's Application to Admit Late Documents and attachments dated 29 September 2022.

1. On 10 May 2011, Mr Balaji Govindan (the applicant) suffered an injury to his left shoulder as a result of lifting a basket of metal window cleaner parts and construction harnesses whilst in the course of his employment with Capital Safety Group (Australia) Pty Ltd (the respondent).
2. Liability for the injury to the left upper extremity was accepted, and on 27 November 2012, a Certificate of Determination was issued by the Workers Compensation Commission ordering the respondent pay the applicant lump sum compensation pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of a 9% permanent impairment to the right upper extremity. A Certificate of Determination to that effect was issued in accordance with the Medical Assessment Certificate (MAC) of Dr Assem dated 22 October 2012.
3. The applicant alleges that as a result of the injury to his left shoulder, he suffered consequential conditions to his right shoulder and cervical spine through overuse and overreliance on the right shoulder. He also alleges that as a result of taking pain killing medication, he has suffered a consequential condition to his gastrointestinal tract.
4. The respondent disputes liability for the alleged consequential conditions.

1. The parties agree that the following issues remain for determination:

(a) whether the applicant suffered a consequential condition to his right upper extremity (shoulder); > > (b) whether the applicant suffered a consequential condition to his cervical spine, and > > (c) whether the applicant suffered a consequential condition to his digestive system.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (the Commission)

1. The parties attended a hearing on 14 October 2022. I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been able to reach an agreed resolution for dispute.
2. At the hearing, Mr Carney of counsel appeared for the applicant and Mr Young of counsel appeared for the respondent.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) Application to Resolve a Dispute (the Application) attached documents; > > (b) Reply and attached documents, and > > (c) respondent's Application to Admit Late Documents (AALD) and attached documents dated 29 September 2022.

1. There was no oral evidence called at the hearing.

Whether the applicant suffered a consequential condition to his right upper extremity (shoulder)

1. In his statement, the applicant set out the history of injury on 10 May 2011. He noted that on 4 October 2011, treating surgeon Dr Hoe carried out a left shoulder rotator cuff repair and biceps tendinitis at Westmead Private Hospital. The applicant was then placed in a sling for eight weeks, and he stated:

"22. During my recovery after the left shoulder surgery, my right shoulder has become sore due to overuse. The pain radiates down the shoulders from my neck. The right shoulder has become rather worse than the initially injured left side.

1. I experienced shooting pain in both shoulders at night. I was prescribed to use Tramadol to facilitate sleep and alleviate the symptoms of my pain.
2. I have difficulty in use of my arm such as reaching to pick up even light objects, carrying groceries or just putting on seatbelt. I now feel affected in my lower back as I have had to compensate for my neck and right shoulder injury. There is pain, tenderness and restriction of movement in my back...
3. On 28 April 2014, I was referred to Dr Frederick Hoe to proceed with the right shoulder rotator cuff repair. The doctor has noted the right shoulder x-ray dated 11 April 2014 which demonstrates a massive rotator cuff tear with complete supraspinatus with atrophy of the muscle. There is also a full thickness complete tear of the subscapularis tendon with medial subluxation of the long head of biceps."
4. There is no issue that the applicant eventually had right shoulder surgery in 2017 at the hands of Dr Yalizis, orthopaedic surgeon by way of arthroscopic cuff repair and insertion of an InSpace balloon.
5. It is apparent from the treating medical material in this matter that the applicant began complaining of problems with his right shoulder over the course of several years. The radiological evidence reveals manifest pathological change in the right shoulder, including serious tears demonstrated as early as 13 March 2014.
6. In an ultrasound taken on that occasion, it was noted the applicant's right shoulder had a complete tear of the supraspinatus with retraction, medial subluxation of the long head of the biceps tendon, at least a partial tear of the subscapularis and infraspinatus tendons, together with bursitis and bursal impingement. An MRI of the right shoulder taken on 11 April 2014 is reported as demonstrating a "massive cuff tear with complete supraspinatus tear with atrophy of the muscle. There is no cuff arthropathy associated with this."
7. The respondent's independent medical examiner (IME), Dr Rimmer indicates the pathology in the applicant's right shoulder is constitutional in nature. However, this opinion ignores the essential test for a consequential condition, which goes to the cause of the onset of symptomology in the affected body part, rather than the cause of the underlying pathology. In any event, on a commonsense view of the evidence, I do not believe the applicant could have carried on his work has a machine operator over the course of many years if there was a massive and complete tear of his right rotator cuff. The symptoms in the applicant's right shoulder only came upon him after the immobilisation of his left shoulder following injury and subsequent surgery to that body part with subsequent overuse of the right shoulder.
8. On balance, I prefer the views of the applicant's IME, Dr Giblin, who indicates the right shoulder was a consequential condition caused by overuse as a result of the injury to the left shoulder. That finding accords with the treating clinical picture of the onset of severe right shoulder pathology. The applicant's general practitioner, Dr Parvez also attributes the right shoulder symptomology to overuse, while treating left shoulder surgeon, Dr Hoe noted as early as 3 April 2014:

"He states that his right shoulder became sore 6-7 months ago and attributes this to overuse of the right shoulder during the recovery from his left shoulder surgery. He also attributed his right shoulder injury to the nature and condition of his work, which was a machinist and involve significant heavy lifting.

Currently, he states that the right shoulder is much worse than the left. He has pain at rest and at night. He has great difficulty even with tasks like lifting the remote control. He has difficulty putting on his seatbelt.

Mr Govindan has a significant right shoulder rotator cuff tear. To see whether it is repairable, I have requested an MRI scan and will review him with the results."

1. Upon review of the MRI results, Dr Hoe confirmed the presence of a massive rotator cuff tear of the whole of the supraspinatus with retraction of 39mm of the deep lamina and 20mm retraction of the superior or superficial lamina.
2. For the respondent, Dr Rimmer indicated in his initial report of 22 March 2022 that if he accepted the applicant's history, he would agree the right rotator cuff issues were caused by overcompensation. In a further report dated 27 September 2022, Dr Rimmer indicated the pathology in the MRI of the right shoulder showing a massive rotator cuff tear was not consistent with a consequential condition, and that the pathology was overwhelmingly consistent with a chronic pre-existing condition.
3. With respect to Dr Rimmer, a litany of decisions such as Kumar v Royal Comfort Bedding Pty Ltd [2012] NSWWCCPD 8 (Kumar), Moon v Conmah Pty Ltd [2009] NSWWCCPD 134 (Moon) and Trustees of the Roman Catholic Church for the Diocese of Parramatta v Brennan [2016] NSWWCCPD 23 (Brennan) make it clear it is unnecessary for a worker alleging a consequential condition to establish an "injury" within the meaning of s 4 of the 1987 Act. All an injured worker must establish is that the symptoms and restrictions in the relevant body part have resulted from the accepted injury.
4. In certain cases, it is necessary to delve into the exercise of diagnosing the nature and extent of pathology in an alleged consequential condition, such as cases where the medical evidence discloses a completely different pathology to that alleged to have been caused by the consequential condition (for example, overuse being alleged in circumstances where the clinical picture demonstrates a central pain syndrome): see for example Grant v Dateline Imports Pty Ltd [2022] NSWPICPD 3. This case, however, is not such a matter. There was no dispute as to the nature of the pathology in the applicant's right shoulder, and it is not essential for the Commission in this instance to embark upon an exercise of diagnosis. Rather, the question to be answered is whether, having regard to all the evidence, the applicant has discharged the onus of proof that on a commonsense basis his right shoulder condition has arisen as a result of overuse.
5. In my view, the medical evidence in this matter is overwhelming. The applicant's treating doctors as early as 2014 note the onset of right shoulder symptoms against the background of overuse by him. That pattern continued up to and including the point where the applicant finally underwent right shoulder surgery in 2017.
6. I reject Dr Rimmer's statement that the cause of the applicant's right shoulder condition was pre-existing pathology. There is no question the applicant was asymptomatic in his right shoulder before the injury to his left shoulder. On a commonsense basis, I find the applicant has discharged the onus of proof and has demonstrated the condition in his right shoulder was brought about as a consequence of the accepted left shoulder injury.
7. Accordingly, the right shoulder consequential condition will be remitted to the President for referral to a Medical Assessor to assess the applicant's degree of permanent impairment.

Whether the applicant suffered a consequential condition to his cervical spine

1. There is a paucity of evidence surrounding the onset of the applicant's cervical spine symptoms. A review of the medical records of the applicant's general practitioner reveals occasional and sporadic complaints of neck pain after the injury, however, there is no contemporaneous evidence which demonstrates this neck pain was brought about as a consequence of the left shoulder injury.
2. The applicant's treating general practitioner made an entry of a visit by the applicant on 23 August 2016, at which time Dr Parvez recorded the applicant suffering neck pain "closer to the right shoulder." There are only a few further entries relating to neck pain in the clinical notes, and the applicant's IME, Dr Giblin notes that it was shortly after surgery on the left shoulder that the applicant developed pain in the right shoulder and his neck.
3. With respect to Dr Giblin, this does not accurately reflect the clinical picture. Whilst it is undeniably true that very soon after the left shoulder surgery, the applicant began complaining of consistent and persistent right shoulder problems, that is not the case with his cervical spine. Dr Giblin does not, in my opinion, provide an explanation as to why the applicant would have suffered a consequential condition to his cervical spine as a result of overuse of his right shoulder, rather than symptoms in his neck simply being referred pain from the right shoulder consequential condition which, as has been noted, was in nature of very severe rotator cuff tear.
4. I accept Mr Young's submission that Dr Giblin does not provide an explanation as to why the cervical spine condition was consequential to the accepted injury and accept there were no contemporaneous complaints in relation to the neck other than those connected with the right shoulder. Indeed, Dr Parvez's entry of 23 August 2016 specifically notes a query or referral of pain from the right shoulder when referring to the neck.
5. The applicant bears the onus of proving that the alleged consequential condition in the neck came about as a result of the left shoulder injury. In my view, his evidence does not provide a causal basis for finding that this is the case, and there will be an award for the respondent on the claim for the consequential condition to the cervical spine.
6. In his report dated 22 January 2019, the applicant's IME Dr Giblin undertook an examination of the applicant in which he noted restricted neck movements. Dr Giblin then provided the following opinion:

"His shoulders are never going to be normal, will always be symptomatic, have permanent physical limitations, and be associated with neck discomfort as well as the prospect of continuing deterioration."

1. By 19 January 2021 when Dr Giblin next provided a report, the applicant's principal complaints remained increasing symptomatology in both shoulders "and to a lesser extent his neck and low back." Dr Giblin noted the applicant's condition had remained stable and said:

"I note there are no available radiological investigations for his neck or back and in my view it would be reasonable to consider plain x-rays and MRI scans of both these entities in order to fully populate the injury data base."

1. Dr Giblin is the only doctor, treating or IME, who finds support for a cervical spine consequential condition, and in my view the above quote demonstrates some uncertainty on his part as to the condition, given he states it would be preferable for some radiological investigation of that body system. There is a clinical entry from general practitioner Dr Parvez of "associated neck pain closer to right shoulder" on 23 August 2016, however, the same entry noted the neck was not obviously tender. Dr Parvez queried whether the complaint of neck pain was referred from the right shoulder.
2. There was a further entry of neck stiffness on 25 November 2016, however, there was no further mention of the applicant's neck until an entry on 23 October 2017 in which Dr Parvez noted "no neck pain. No back pain. Right shoulder pain" at a consultation shortly after the applicant underwent right shoulder surgery and his arm was in a sling.
3. In my view, these entries are supportive of Mr Young's submission for the respondent that the source of the applicant's discomfort in his neck was not a condition in that body system, but rather referred pain from the left and right shoulders. I accept Mr Young's submission that there is no satisfactory explanation proffered by Dr Giblin of a causal link between the accepted injury and any cervical spine symptoms, and the only contemporaneous records supporting complaints of cervical pain in the records of Dr Parvez strongly suggest the pain being referred from the right shoulder. This conclusion is also supported by the applicant reporting no neck pain in the aftermath of his right shoulder operation when the right arm was immobilised.
4. On balance, I am not satisfied on a commonsense basis of the presence of a causal connection between the accepted left shoulder injury and the alleged cervical spine consequential condition. Accordingly, there will be an award for the respondent on the claim for the consequential condition to the neck.

Whether the applicant suffered a consequential condition to his gastrointestinal system

1. Dr Berry, IME for the applicant, has provided a report in which he states that the applicant's gastrointestinal condition was brought about by his use of painkillers following the left shoulder injury.
2. There are a number of difficulties with Dr Berry's contention and the applicant's case in relation to the gastrointestinal condition. The first is that the applicant was referred for his gastroscopy and colonoscopy not as a result of stomach symptoms, but because blood tests revealed he was anaemic.
3. Further, Dr Berry does not set out the number of painkillers taken by the applicant, the type of painkillers, their frequency, and the length for which they were taken. Absent such explanation, Dr Berry's finding that the applicant's stomach condition was brought about by the taking of painkillers is a bare ipse dixit statement. Dr Berry does not set out the effects of any given painkillers which the applicant has taken, nor does he say why those painkillers would have affected the applicant's digestive system.
4. Absent such an analysis, in my view, there is no sound basis to support Dr Berry's finding. Instead, I prefer the views of Dr Truskett, IME for the respondent. Dr Truskett took a significant history from the applicant as to the painkillers which he had taken, and recorded the following:

"In relation to his bowels, when Mr Govindan first began attending Dr Parvez as a result of blood tests, he was advised that he was anaemic and was referred to Dr Manoharan, general surgeon, for assessment.

Mr Govindan subsequently underwent a colonoscopy and gastroscopy performed by Dr Manoharan on 4 June 2020. He was advised that nothing was found, and he was commenced on iron replacement for his iron deficiency anaemia. He was apparently recommended to have these procedures performed some 12 months earlier but did not attend until 4 June 2020. He advised me that he was asymptomatic in relation to his gastrointestinal tract. He takes the following location:

• Amlodipine (anti-hypertensive) for four months. He has had other anti-hypertensives.
• Trajentamet (hypoglycaemic for diabetes) for seven years.
• He now occasionally takes Naprogesic 6 to 7 times per month for the past five months (nonsteroidal anti-inflammatory). At the time of his endoscopies, he was not taking this medication, or any other nonsteroidal anti-inflammatory medication."

1. Dr Truskett noted that apart from the report of Dr Berry, there were no other entries supporting gastrointestinal symptoms on the part of the applicant.
2. As noted above, the applicant bears the onus of proving that his consequential conditions were brought about by his work-related injury. It is not, in my opinion, sufficient for the applicant to simply state that he took painkillers and therefore suffered a gastrointestinal complaint. Absent an analysis of the type of painkillers taken, the dosage and the duration, there is in my opinion no sufficient factual basis to support Dr Berry's contention that any gastrointestinal intestinal symptoms suffered by the applicant related to his work-related injury, and there will accordingly be an award for the respondent in relation to the claim for gastrointestinal consequential condition.

1. For the above reasons, the commission will make the findings in order set out on page 1 of the Certificate of Determination.