Schembri v Blacktown City Council (NSWWCCPD 2020) (9 June 2020)

Key Takeaways

A worker cannot simply rely on an allegation of overuse to establish a consequential injury.

On 9 June 2020 Acting Deputy President Geoffrey Parker SC confirmed the decision of Arbitrator Catherine McDonald that the subject worker had not sustained a consequential injury to her right shoulder as a result of overuse following injury to the left shoulder and cervical spine in 2005.

Brief Facts

The worker was employed by the respondent as a cleaner. On 6 July 2005 she sustained injury to her left shoulder, cervical spine and lumbar spine at work. The respondent accepted liability.

In 2010 the worker received compensation in accordance with Dr Harrison’s assessment of 5% WPI arising from injury to the cervical spine. Dr Harrison indicated in the MAC that the left shoulder impairment was properly rated with the cervical spine.

The worker made a claim for further impairment and alleged a consequential condition of the right shoulder. In issue was whether the worker had a consequential condition to the right shoulder. The worker relied on an assessment of Dr Mendelsohn who stated that the worker developed a consequential injury to her right shoulder as a result of overuse following injury to the left shoulder and cervical spine in 2005.

In the Certificate of Determination, dated 6 November 2019, Arbitrator McDonald preferred the evidence of Dr Powell (qualified by the respondent). He concluded that the right shoulder condition was due to age related degenerative changes rather than overuse. The arbitrator rejected Dr Mendelsohn’s opinion on the basis that he did not give an adequate explanation for his reasoning, whereas Dr Powell was able to rely on investigation findings and radiological studies.

The determination was appealed on the basis that the Arbitrator made errors of both fact and law.

Judgment

One of the grounds of appeal was that Arbitrator McDonald had erred in fact and/or law by failing to make a specific finding as to whether the worker placed greater reliance on her right shoulder following the 2005 injury.

The worker submitted that the determination ‘lacked a proper substantive foundation’ as the Arbitrator had failed to make a finding as to the causal chain between reliance on the right shoulder and the development of a consequential condition.

Parker ADP rejected this ground of appeal and noted the following at [103] and [104]:

The reliance or otherwise placed on the right shoulder by the appellant was not determinative of the causation issue…There was no necessity for the Arbitrator to make a specific finding that the appellant placed greater reliance on her right shoulder. The issue was whether the symptoms in the right shoulder resulted from the injury sustained by the appellant in July 2005.

Parker ADP further explained that the expression ‘as a result of’ requires ‘more than a common sense approach’. He referred to the case of Murphy v Allity Management Services Pty Limited (NSWWCCPD 2015) in which Roche DP said that the worker needed only to establish that medical treatment sought was reasonably necessary as a result of the injury. Parker ADP stated that this was the correct approach as it adopted the wording of the Act.

Applying that to the current matter, Parker ADP commented that the issue of reliance on the right shoulder was not required or determinative in relation to causation and that the appellant had not correctly stated the test for causation. He explained that the ‘onus was on the appellant to show that symptoms in the right shoulder…resulted from the injury of July 2005’. In giving preference to the medical evidence provided by Dr Powell in favour of the respondent, it was not necessary for the Arbitrator to explicitly address the issue of reliance.

The appellant also submitted that Arbitrator McDonald had erred in accepting Dr Powell’s opinion given the fact that he did not take a history of the appellant’s reliance on her right shoulder. The appellant submitted that the Arbitrator had also erred by proceeding on the basis that Dr Mendelsohn did not disclose his reasoning process.

The ADP rejected the submissions and again referred to the fact that consequential injury must be shown to arise from the subject injury, rather than reliance on that body part. He commented that the appellant’s focus on the issue of reliance did not properly consider the statutory question of causation and that determination of that issue required consideration of all the evidence.

All grounds of appeal were dismissed.

Implications

Both the initial decision by Arbitrator McDonald and the decision on appeal, confirm that the onus is on the worker to show that any consequential condition arose directly as a result of the subject injury, rather than simply an assertion that it arose as a result of overuse or over reliance on that body part.