Caballes v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 87

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Caballes v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 087 PARTIES: Caballes, Chona (Appellant) v Simon Blackwood (Workers' Compensation Regulator) (Respondent) CASE NO: WC/2013/319 PROCEEDING: Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) DELIVERED ON: 15 May 2015 HEARING DATES: 11 December 2013 11 December 2013 (Appellant's submissions) 27 January 2014 (Respondent's submissions) 31 January 2014 (Appellant's submissions in reply) MEMBER: Deputy President Bloomfield ORDERS: 1. The Appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Respondent's costs of, and incidental to, the Appeal with recourse available to the Commission. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Shoulder injury - Injury reported to medical practitioner eight months after employment ceased - Whether injury arouse out of, or in the course of, employment - Whether employment was a significant contributing factor - Medical evidence - Burden of proof - Requirement to establish employment was a significant contributing factor to injury - Burden not met - Finding that employment was not a significant contributing factor - Appeal dismissed - Costs awarded. CASES: Workers' Compensation and Rehabilitation Act 2003, s 32 -- 1 of 10 -- 2 Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au>. Poulsen v Q-COMP (C/2011/29) - Decision <http://www.qirc.qld.gov.au>. Thompson v Q-COMP and Qantas Airways Limited (WC/2011/395) - Decision <http://www.qirc.qld.gov.au> citing Minh Lai Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSW CA 246. APPEARANCES: Mr M. Smith of Counsel, instructed by Mr S. Olsen of Murphy Schmidt Solicitors for the Appellant. Ms D. Callaghan of Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent, with Ms L. Hedges. Decision Introduction [1] This decision relates to an Appeal by Ms Chona Caballes against the decision of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) to confirm an earlier decision of WorkCover to reject Ms Caballes' Application for Workers' Compensation, filed on 7 March 2013, for an injury described as right shoulder bursitis which was alleged to have happened at 12 pm on 1 August 2011. The stated cause of the injury was "repetitive housekeeping work" while employed by Centra Pty Ltd at the Dockside Hotel, Kangaroo Point (Dockside). Issue requiring determination [2] The sole issue requiring determination in this case is whether Ms Caballes' right shoulder condition arose out of, or in the course of, her employment and whether her employment was a significant contributing factor. Evidence Ms Caballes [3] Ms Caballes commenced work at Dockside in March 1998 and remained there until 11 December 2011, on which date her employment was terminated for performance reasons. She worked as a Room Attendant for in excess of seven years before being appointed as Executive Housekeeper on 6 September 2005. In the latter role, Ms Caballes was required to: program and supervise the work of other Room Attendants; liaise with reception about any special guest requirements; ensure appropriate levels of linen, towels, and the like were on hand to be used as rooms were cleaned and/or vacated; and, ensure products and items used in the upkeep of rooms were charged to the owners of those rooms. -- 2 of 10 -- 3 [4] Although initially claiming that her supervisory and liaison type work only occupied her for about 1 hour each day, after which she was expected to undertake the normal duties of a Room Attendant, it quickly became apparent during the course of her cross-examination that this was a gross underestimate. In fact, Ms Caballes ultimately conceded that she spent an average of between 2 and 3 hours each day on actual cleaning duties. The balance of each day, 5-6 hours, was spent undertaking the duties of Executive Housekeeper. [5] While Ms Caballes first language is not English, she nonetheless presented as being reasonably competent in the language, albeit that her use of grammar and, from time to time, expression might have been more representative of her country of birth. However, she was a very poor historian, frequently saying "2010" when she should have said "2011" and "2011" when it should have been "2012". Indeed, this trait was commented on by Dr Mark Robinson, whose evidence appears below, and resulted in him writing to Solicitors for Ms Caballes and to the Regulator, respectively, on 10 December 2013 to correct his references to various dates contained in earlier Reports and correspondence he had prepared. [6] In addition to the Workers' Compensation Application for the injury to her right shoulder, Ms Caballes previously pursued a Workers' Compensation Application for a left shoulder injury. As such, it is helpful to record the chronology of events concerning that injury before returning to the evidence given in connection with the present Appeal. This is because some of Ms Caballes' confusion about dates appears to have been as a result of her attempts to obtain treatment in connection with her left shoulder injury. Further, the dates of visits to medical practitioners to seek treatment for her left shoulder injury helps clarify the chronology of events concerning the identification and treatment of her right shoulder injury. [7] On 24 August 2011 Ms Caballes presented to her General Practitioner, Dr Ioannidis, complaining of pain in the left shoulder. An ultrasound led to a diagnosis of bursitis, which was treated by way of ultrasound-guided steroidal injection in October 2011 (after which she went on light duties in November 2011 before ceasing work in December), with a further injection in February 2012. Eventually, after the pain persisted, she was referred to Dr Robinson, an Orthopaedic Surgeon specialising in the hand and upper limb, and saw him on 21 May 2012. Dr Robinson recommended surgery and, on Ms Caballes' behalf, requested a review of her workers' compensation claim so that she could access ongoing, appropriate treatment for her shoulder. Surgery to her left shoulder was eventually undertaken in late January 2013. [8] In terms of outlining the issues with her right shoulder Ms Caballes was, as noted above, a very poor historian in that she consistently referred to 2010 or 2011 when she should have been referring to 2011 or 2012. In noting this point, I do not suggest Ms Caballes was trying to mislead either myself or her medical practitioners. It was an issue she clearly had difficulties with. [9] In any event, the history of symptoms/treatment for her right shoulder seems to be as follows:  19 September 2012: Ms Caballes presented to Dr Ioannidis and reported "worsening right shoulder pain present for 3 months but particularly bad over the past month"; -- 3 of 10 -- 4  21 September 2012: ultrasound of right shoulder, which showed a 6.7 mm calcification at the infraspinatus tendon insertion. It also showed that the biceps tendon sheath, AC joint and posterior joint space all appeared normal. The radiologist who signed the Report, Dr Solwa, opined: o Calcific tendonosis of the infraspinatus tendon. o Subdeltoid bursitis. There is bursal impingement on dynamic assessment. o An ultrasound guided subdeltoid bursal injection of Marcaine and Celestone would provide symptomatic relief.  7 November 2012: visited Dr Robinson to discuss surgery to her left shoulder but then started to tell him about pain in both shoulders, which she claimed she first noticed symptoms of in August 2011. Dr Robinson's notes of this consultation recorded: o "bilateral shoulder pain; o starting to get pain to right shoulder o 'actually I had it before' noticed August, 2011 o had injection to right shoulder 25/10/2011…" Relevantly, in a Report to the Regulator dated 27 November 2013 Dr Robinson advised he had originally written "August 2012" in his notes but corrected this to "August 2011" to coincide with Ms Caballes' history of the injection.  4 April 2013: attended Dr Desmond Soares, Orthopaedic Surgeon, at the request of WorkCover for the purpose of obtaining an independent medical examination and Report into the nature of her right shoulder issues and its potential cause, or causes. In his Report (dated the same day as his assessment), Dr Soares recorded that Ms Caballes informed him that she started to develop pain in her right shoulder in about August 2012 and that while she "always had some minor soreness in this shoulder it became worse in August 2012". [10] While Ms Caballes claimed at one point in her evidence that she mentioned to Dr Ioannidis in 2011, or the early part of 2012, that she had right shoulder pain - and they agreed not to do anything about it at that time because it was not all that painful in comparison with her left shoulder - I do not accept her evidence on that point. She saw Dr Ioannidis on approximately 20 occasions in the 13 months between reporting her left shoulder soreness and right shoulder soreness, respectively, in circumstances where she saw him for a variety of ailments during that period including sore throats, tonsillitis, pain in one eyelid and ear ache, with multiple visits in connection with the pain in her left shoulder. It defies belief that Dr Ioannidis would not also have included some reference to right shoulder soreness or pain if Ms Caballes had spoken to him about such issue. [11] I also do not accept her evidence (at T 1-16) that:  she did not tell Dr Ioannidis her right shoulder pain had been present for 3 months but particularly bad over the past month and the true position was that she told him she had the pain since 2011 and "it get worse for the last 3 months"; -- 4 of 10 -- 5  she also told Dr Robinson she had the pain in 2011 but "it get worse, like, last August (2012)". [12] In my opinion, her evidence was simply too "convenient". It was intended to create the impression she was experiencing right shoulder pain some 12 months earlier than it actually appeared, i.e. at the time she was still employed at Dockside. It also appears she made a similar attempt to "back-date" symptoms of her pain when she saw Dr Robinson on 7 November 2012 (see his notes of this visit in paragraph [9] above). [13] After considering all of the evidence (not just that mentioned above) I have reached the conclusion that Ms Caballes did not begin to experience pain in her right shoulder until at least June 2012, and possibly a month or two later. Consequently, I do not intend to record any evidence given by the medical practitioners (below) in response to questions put to them which were premised on the assumption, or possibility, that Ms Caballes was experiencing some pain in her right shoulder during the course of 2011. Dr Robinson (called by Ms Caballes) [14] As noted earlier, Dr Mark Robinson is an Orthopaedic Surgeon specialising in the surgery of the hand and upper limb. In this respect, he had completed two years of post-graduate training which included Fellowships in relation to the shoulder. [15] Although Dr Robinson prepared four Reports/opinions about Ms Caballes' right shoulder injury between 14 April 2013 and 27 November 2013 I am reluctant to pay much regard to the opinions expressed in them because the history obtained by the doctor from Ms Caballes was affected by her trait of recounting events as if they occurred a year earlier than was the actual case. In particular, I am disinclined to accept Dr Robinson's opinion, as expressed to Ms Caballes' Solicitors on 5 August 2013, to the effect "her occupational history is likely to be a significant contributing factor to her right shoulder symptoms.". [16] Instead, I have decided to pay greater regard to Dr Robinson's Report of 10 December 2013 (in which he noted errors in dates in his earlier Reports) as well as his oral evidence under both examination-in-chief and cross-examination. [17] In the course of his 10 December 2013 Report, he wrote:  "The type of work she performed as a Room Attendant would place her shoulders at risk of the development of tendonitis with or without calcific deposits. Calcific tendonitis represents dystrophic calcification which probably develops in an area of inflammation or healing after irritation or injury to the rotator cuff tendon. There remains some speculation about the specific ideology of this condition"; and  "My records do not reflect a direct timeline from Chona for the development of symptoms in her right shoulder. I would expect significant discomfort in her right shoulder that relates to occupational exposure would become clinically apparent within 2 or 3 months of ceasing occupational exposure as a Room Attendant.". -- 5 of 10 -- 6 [18] In the course of his evidence-in-chief, Dr Robinson said:  in a Report to WorkCover on 17 April 2013 he opined that the surgery to Ms Caballes left shoulder (in January 2013) could aggravate her right shoulder condition (because of increased reliance on her right arm); and  the duration of her occupational exposure and the type of work she performed over the period of her employment at Dockside "would place her shoulders at risk of developing symptoms". [19] Under cross-examination by Ms D. Callaghan, of Counsel, Dr Robinson, rather helpfully, provided a description of the anatomy of the shoulder as well as the nature of the injury to Ms Caballes' shoulder. In doing so, he said that the calcium deposit identified by the ultrasound exists within the tendon of the infraspinatus. The rotator cuff tendon sits in a space between the humeral head and an arch of bone and ligament called the coracoacromial arch. The normal tendon just fits in that space, very much like a foot fits inside a shoe. A calcium deposit actually increases the volume of the tendon at the point where the calcium exists, such that as you lift the arm up that lump of calcium get squeezed under the coracoacromial arch and causes an irritation on the surface of the tendon. The subdeltoid or subacromial bursa is a lubricating membrane which sits between the rotator cuff and the under-surface of the coracoacromial arch and the deltoid. A normal bursa is like a balloon with the air sucked out of it and a drop of vegetable oil in it. It essentially has no volume and the wall of the bursa is like the wall of a latex balloon. What you have is the tendon with the bursa on top of it rubbing underneath the arch. That causes inflammation of both the tendon and the bursa. Calcific tendonitis is a secondary condition to irritation of the tendon and a healing process which has become a little bit disorganised. As part of the healing process, rather than putting a bit of scar into the tendon, the body actually puts a bit of calcium in the tendon so it is a cascade of events. You have an irritation of the tendon, that causes the development of the calcification, which then causes a further irritation of the tendon from the volume phenomenon in the tendon. That is what was reported in the ultrasound in September 2012. [20] Under further cross-examination Dr Robinson indicated:  "tendinosis" means pathology; "tendonitis" means inflammation in the tendon;  calcific tendinosis relates to a non-inflamed calcium deposit, and a lot of the very small deposits, two or three millimetre ones (like sand in a carpet), are often asymptomatic;  large lumps of calcium can become symptomatic;  calcifying (which is interchangeable with "calcific") tendonitis is rarely associated with structural tears;  tendonitis means there is inflammation of the tendon associated with the calcium;  he was happy with the diagnosis of calcific or calcifying tendinosis;  calcific tendinosis can be found in between 10 and 15 percent of painless shoulders but he would not argue with an estimate of 20 percent;  it was unlikely that the development of symptoms in August 2012 would be directly related to her occupational exposure, but 13 years of work as a housekeeper would place her right shoulder at risk of injury; -- 6 of 10 -- 7  while her employment would have contributed to degenerative changes, he would have expected her to become symptomatic earlier than August 2012 if there was a direct connection with her employment;  there would be some contribution from her occupational activities to the pain which developed in August 2012 but there was no literature to assist him in making an opinion as to the proportion;  there was no universal agreement on the aetiology of calcific tendonitis, but it was his understanding that her occupational activities put her shoulder at risk of developing rotator cuff pathology, and the calcium deposit in the infraspinatus is pathology of the rotator cuff;  the published literature would support the proposition that her occupational activities contributed to the development of the calcium deposit in the infraspinatus tendon but there was other literature which stated there was no relationship;  he did not have anything before him to support an opinion about whether Ms Caballes' work duties prior to December 2011 contributed to the calcium lump forming in her tendon. Dr Desmond Soares (called by the Regulator) [21] Dr Soares said his area of speciality was the upper limb, shoulder and hands - with about fifty percent of his practice related to shoulder conditions. However, apart from fulfilling all Continuing Professional Development (CPD) requirements, he had not undertaken a Fellowship in shoulder surgery. [22] In his Report to WorkCover on 4 April 2013 Dr Soares recorded that Ms Caballes informed him she started to develop pain in her right shoulder in about August 2012 and while she always had some minor soreness in that shoulder it because worse in that month. Dr Soares also opined that her calcific tendonitis may be a pre-existing condition or may be spontaneous, with a preference for the former. [23] In the course of his examination-in-chief, Dr Soares said:  Ms Caballes had a very large piece of calcium in her shoulder and that typically occurred spontaneously;  "it occurs acutely and can be quite painful initially but sometimes it spontaneously occurs without any symptoms at all and then people get mild intermittent symptoms after that. It's typically not traumatic although, occasionally, it can be. So you have a fall then a week or two later you can develop the pain but typically it just comes on spontaneously…";  apart from a series of over-time x-rays there was no way to determine when the lump of calcium formed or when the bursitis occurred. The only way to do that was to rely on a person's recounting of the history and what they said about the timing of the significant onset of the pain. [24] In the course of his cross-examination Dr Soares said:  the type of calcification present in Ms Caballes' shoulder was not the degenerative type;  the calcium deposit revealed by the ultrasound was of the type that occurred more spontaneously. -- 7 of 10 -- 8  calcium deposits in the shoulder which developed as a result of reaching above one's head and the like, activity which may irritate a shoulder, tend to produce flecky types of deposit rather than a large piece;  these flecks could not develop into a large deposit of calcium, they were completely separate;  large calcium deposits, sometimes the size of a pea and sometimes bigger, developed because the body was fighting against itself because of inflammation;  using one's right arm more, because the left arm was not capable of performing its usual array of tasks, would not cause something like this calcium deposit;  he believed Ms Caballes had the calcific tendonitis for some time in her right shoulder then the pain became worse around August 2012 "for whatever reason";  the formation of a large lump of calcium, such as the piece in Ms Caballes' shoulder, was typically a spontaneous occurrence;  the work Ms Caballes performed for 13 and a half years "… would place her at a higher risk for a degenerative type thing, which is the small flecks of micro calcification and/or a wear and tear type thing, but not for a large piece, (a) single piece.". [25] Finally in response to a question about whether Ms Caballes' employment could have aggravated the pre-existing condition he spoke about above, Dr Soares said "I don't believe its caused it. Has it aggravated it? Yes. Any aggravation generally ceases at about 2 to 3 months from when you stop doing the aggravating task. So (for) the shoulder, for example, that aggravation would cease from, you know, if she ceased work in December, about February or March of 2012.". By that date the aggravation would have ceased "so anything that's left over is due to the pre-existing condition.". Findings and Conclusion [26] Not surprisingly, Mr Smith of Counsel, who represented Ms Caballes, urged me to prefer the evidence of Dr Robinson ahead of that given by Dr Soares on the basis of his fellowship in shoulder surgery. In doing so, he also urged me to note Dr Robinson's opinion, expressed in his Report of 5 August 2013, to the effect that Ms Caballes' occupational history is likely to be a significant contributing factor to her right shoulder symptoms. However, as noted above, this Report was written at a time when Dr Robinson believed Ms Caballes was exhibiting symptoms of pain in her right shoulder from August 2011. After he became aware this was not the case his opinion altered quite markedly. For example, in the course of his examination-in-chief he said (as noted above) "the duration of her occupational exposure and the type of work that she was doing, it would place her shoulders at risk of developing symptoms. Yes.". [27] In response to a question a short time later about whether he maintained his view that Ms Caballes' occupational duties would have aggravated any pre-existing issues in her shoulder prior to the development of her symptoms in her left shoulder, he responded by saying "… if she had problems in her right shoulder prior to developing symptoms in the left shoulder, she would be at a higher risk of developing recurrent symptoms or further symptoms in the right shoulder.". -- 8 of 10 -- 9 [28] Importantly, in my view, each of Dr Robinson and Dr Soares opined that if Ms Caballes' employment contributed to the development of her right shoulder condition, any contribution would have well and truly ceased by the time Ms Caballes reported symptoms of right shoulder pain to Dr Ioannidis in August 2012. In Dr Soares' opinion, any contribution or aggravation to Ms Caballes right shoulder as a result of her work would have settled by February or March 2012. In Dr Robinson's opinion it would be unlikely that the development of symptoms in August 2012 would be directly related to her occupational exposure. He would have expected her to become symptomatic earlier than that - within 2-3 months - if there was a direct connection with her employment. [29] Further, when Dr Robinson was asked under cross-examination if he could express a view, on the balance of probabilities, whether the pain which developed in August 2012 was related to Ms Caballes' work activities, he responded by saying there will be some contribution from her occupational activities, but there was no literature to assist him to arrive at an opinion as to the proportion. [30] It is clear from the authorities that Ms Caballes has the onus of proving, on the balance of probabilities, that her right shoulder injury arose out of, or in the course of, her employment where her employment was a significant contributing factor1. [31] However, the nearest the evidence comes to meeting that test is Dr Robinson's evidence to the effect:  Ms Caballes' occupational history placed her shoulder at risk of developing symptoms;  her occupational history would be consistent with producing symptoms in her shoulder; and  while there would be some contribution to the development of her condition as a result of her occupational activities there was no literature to assist him to arrive at an opinion as to the proportion. [32] Evidence to the effect that Ms Caballes' employment placed her at risk of developing problems in her shoulder and made some contribution to the development of her condition falls well short of meeting the statutory test that employment must be a significant contributing factor to the development of her injury2 3. Accordingly, Ms Caballes' Appeal must fail. [33] Further, in response to Mr Smith's submissions about aggravation, there was nothing in either Dr Robinson's evidence or Dr Soares' evidence to support any finding that Ms Caballes' injury, first reported in August 2012, constituted an aggravation of an earlier injury where her employment was a significant contributing factor. This is because of the same factors recorded at paragraphs [26] to [32] above. 1 Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au>. 2 Poulsen v Q-COMP (C/2011/29) - Decision <http://www.qirc.qld.gov.au> at [10]. 3 Thompson v Q-COMP and Qantas Airways Limited (WC/2011/395) - Decision <http://www.qirc.qld.gov.au> at [92] citing Minh Lai Nguyen v Cosmopolitan Homes (NSW) Pty Ltd [2008] NSW CA 246. -- 9 of 10 -- 10 [34] For the foregoing reasons, I Order:  Ms Caballes' Appeal in Matter No. WC/2013/319 be dismissed;  The decision of the Regulator to reject Ms Caballes' application for compensation, dated 13 September 2013, is confirmed; and  Ms Caballes is to pay the Regulator's costs of, and incidental to, the Appeal with recourse to the Commission if the parties are unable to agree on the amount involved. [35] I determine and Order accordingly. -- 10 of 10 --