Eavestaff v Q-COMP [2013] QIRC 145

CITATION: Sandra Eavestaff AND Q-COMP (WC/2013/113) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal Sandra Eavestaff AND Q-COMP (WC/2013/113) INDUSTRIAL COMMISSIONER FISHER 19 September 2013 Appeal - Decision of Review Unit, Q-COMP - Personal injury - Whether injury arose out of or in course of employment - Whether employment was a significant contributing factor - Whether injury caused by overuse in compensation for injury in opposite shoulder - Evidence - Bursitis - Frozen shoulder syndrome - Age-related degeneration - Constitutional condition - Evidence does not support overuse - Held, injury not work related - Finding left shoulder rotator cuff impingement syndrome - Did not arise out of or in the course of employment - Employment not a significant contributing factor - Appeal dismissed. DECISION [1] Sandra Eavestaff (the Appellant) has appealed the decision of the Review Unit Q-COMP (Q-COMP) which confirmed the decision of the self insurer, Woolworths Limited (Woolworths), to reject her application for compensation in accordance with s. 32 of the Workers' Compensation and Rehabilitation Act 2003 (the Act). [2] The parties agree, and the Queensland Industrial Relations Commission (the Commission) accepts, that Ms Eavestaff was a worker within the meaning of s. 11 of the Act and that she suffered a personal injury, although there is some conflict in the medical evidence as to the diagnosis of the injury. Q-COMP submitted that the matter of the diagnosis was one for the Commission to determine. The significant matters in dispute are whether the injury arose out of or in the course of employment and whether employment was a significant contributing factor to the injury. The Appellant bears the onus of proof on the balance of probabilities to establish the decision was wrongly made and, in so doing, to establish these elements. [3] It is common ground that Ms Eavestaff sustained an injury to her right shoulder (and other injuries) at work on 24 January 2011. In contention in these proceedings is an injury to her left shoulder. Background [4] Ms Eavestaff commenced employment with Woolworths at its Robina store in approximately September 2006 on the checkouts. She initially worked part-time at 25 hours per week. [5] On 24 January 2011 Ms Eavestaff was working in parcel pick up services performing duties including packing trolleys at the checkouts and then unloading them in the parcel pick up area. Ms Eavestaff described the trolleys as being double storey, i.e., they have a trolley base and a smaller trolley surface tray on top. Although they are similar to the ones customers use in the stores, with similar handles and wheels, the ones used for parcel pick up are made of heavy metal. [6] On this day one of trolleys was very full, heavy and hard to steer. She was pushing the trolley out to a customer when she went over the curb in the driveway. The trolley swayed and she twisted with it. As the trolley started to fall Ms Eavestaff said she put her right arm out to stop her fall and used her left arm to hold the trolley off her upper body. The trolley ended up wedging her feet between it and the gutter with the trolley resting from her knee down. Ms Eavestaff sustained grazing to her right hand, back strain, a sprained left ankle and an injury to her right shoulder. In her evidence in chief Ms Eavestaff said she "felt a bit of pain or maybe a strain" from holding the trolley away, however, she did not have any concerns about her symptoms in her left shoulder that day. Ms Eavestaff did not complete her shift and returned to work on 27 January 2011. [7] Ms Eavestaff first consulted her General Practitioner, Dr Caroline van der Vlugt of the Christine Avenue Medical Centre, on 28 January 2011 about her injuries. The medical records note that Ms Eavestaff reported that the trolley fell on to the left side and that she hit the ground on her right shoulder. Dr van der Vlugt assessed Ms Eavestaff as having a supraspinatus injury to her right shoulder, sprained left ankle and muscular pain and strain to her cervical and lumbar spine. After discussions with Ms Eavestaff, Dr van der Vlugt signed a Suitable Duties Program (SDP). This SDP is not in evidence. However, workers' compensation medical certificates are in evidence from 28 January 2011. The certificates which operate from that date until 25 March 2011 show that Ms Eavestaff was not able to lift any weights, bend/twist or squat or push/pull. -- 1 of 8 -- 2 [8] On her return to work Ms Eavestaff performed administrative tasks for approximately eight weeks. She continued to work five hours a day five days a week. The first SDP that is in evidence commenced on 28 March 2011 and ceased on 10 April 2011. The duties were home shop paperwork, inputting out of date magazines and invoice office paper work. The next two SDPs built on the previous one and show that in addition to these duties, Ms Eavestaff was to cover staff in the smoke shop on tea breaks, sell raffle tickets, ticket parcel pick up trolleys, return stock to shelves and fill impulse bars. For four weeks commencing 25 April 2011 there were some additions to the SDP such as covering tea breaks on the self-serve checkouts and filling the magazine racks. [9] From about 24 May 2011, Ms Eavestaff supervised the self-service area, checking that customers were correctly scanning their goods and providing assistance. At least two or three times each day for about a half to one hour each occasion, Ms Eavestaff also worked in the express checkout. This was also in accordance with the SDP. Because she did not have full use of her right shoulder she was unable to scan with her right arm so only used her left arm. Once the goods had been scanned Ms Eavestaff put them into a shopping bag and on completion of the order she lifted the bag with her left arm onto the serving tray. [10] The next and last SDP, commencing on 20 June 2011 and continuing to 20 August 2011, specified that Ms Eavestaff was to do magazine returns, self-serve attendance, smokeshop roles and express registers. However, Ms Eavestaff said she worked almost exclusively on the express check outs with some limited time spent supervising the self-service check outs. Again Ms Eavestaff relied upon her left arm to perform tasks at the express checkouts. Although she was supposed to only work for up to 30 minutes at a time and have regular breaks, this did not occur because of short staffing or constant customer flow. Ms Eavestaff performed her five hour shifts for about eight weeks in this role. During this time she did not have full use of her right shoulder and although she relied on her left arm, she did not experience any symptoms in her left shoulder while performing in this role. [11] On or about 21 August 2011 Ms Eavestaff was moved to the grocery area to replenish shelves. Although there was no SDP in place, workers' compensation medical certificates were in place from 20 June 2011 specifying no lifting more than five kilograms and no over shoulder work. The work in grocery involved taking large steel caged trolleys from the warehouse area, pushing them onto the shopping floor and then reloading stock onto the shelves. Mostly the trolleys were fully stacked and were heavy. She mainly used her left arm to push the trolleys through swinging plastic doors on to the floor. Initially Ms Eavestaff worked in any aisle but was moved after about three or four weeks to the health and beauty section where the stock was lighter. Ms Eavestaff was required to replenish stock on all shelves including overhead ones. For these she used a step ladder or stepping stool. Climbing aggravated her foot* and when using the step ladder she would use both arms to hang on but placed more weight on her left arm. On occasion her entire shift would be spent climbing the ladder, however, no left shoulder symptoms developed at this time. These duties continued for about eight weeks. *(The rehabilitation case notes show that Ms Eavestaff developed plantar fasciitis in her left foot in about mid-2011 which was ultimately accepted as a work-related injury.) [12] From there Ms Eavestaff was moved to the online shopping area. Ms Eavestaff requested this move so that she was not constantly standing as this hurt her foot and to ensure that she was lifting weights with which she was comfortable. Work in this area required her to pick goods that customers had ordered online. Ms Eavestaff was required to get a flat top trolley with two crates on it and move from aisle to aisle to pick the orders. After the orders had been picked, Ms Eavestaff would pack them into bags and place them in the crates on the trolley. Once the order was completed the trolley would be taken to the parcel pick up area and lift the crates off onto the floor. The crates were about Ms Eavestaff's chest height. Most were moderately heavy and on occasion would be very heavy. In terms of lifting the crates off the trolley Ms Eavestaff would use both arms but tended to use her left. On completion of the work in online shopping and if there was time in her shift remaining, Ms Eavestaff would return to the grocery area. The workers' compensation medical certificate restrictions continued. [13] In January 2012 Ms Eavestaff's hours increased to full time, i.e., 38 hours per week, and she continued in the online shopping area performing the same duties as described above with the same workers' compensation medical certificate restrictions. From the time of her injury in January 2011 and into 2012 Ms Eavestaff continued to experience difficulties with her right shoulder in the performance of her duties. This is evidenced by her reports to Dr van der Vlugt and to her rehabilitation case managers. Ms Eavestaff said in evidence that in late April 2012 she experienced a tearing type feeling in her left shoulder, like the pain she had in her right shoulder. She said she first started to notice the symptoms when performing lifting work but she could not recall any specific incident. Ms Eavestaff initially reported the left shoulder problem to her physiotherapist; the rehabilitation case managers on 24 May 2012 and later to Dr van der Vlugt on 5 June 2012. [14] In respect of her left shoulder injury Ms Eavestaff was sent by the self insurer to Dr Nicoll, an Orthopaedic Surgeon and was sent by her solicitors to see Dr Wallace, also an Orthopaedic Surgeon. -- 2 of 8 -- 3 [15] Under cross-examination Ms Eavestaff said that she had not reported any concerns about her left shoulder to the store manager with whom she had a good working relationship. Ms Eavestaff also conceded that the hearing was the first time she had raised experiencing pain in her left shoulder on 24 January 2011 as a result of the accident. Medical Evidence Dr Caroline van der Vlugt, General Practitioner [16] Dr van der Vlugt is Ms Eavestaff's General Practitioner and was called as a witness for the Appellant. Dr van der Vlugt acknowledged that there were errors appearing in her clinical notes on 28 January 2011 where she referred to "left shoulder pain over supraspinatus tendon". This should have been right shoulder pain. A similar error is found in her clinical notes on 4 February 2011 where she recorded "left shoulder impingement from thickened bursa". Again Dr Van der Vlugt said this should have been a reference to the right shoulder. She said that had there been a complaint about the left shoulder it would most likely have been investigated with an X-ray or ultrasound as happened with the right shoulder. [17] Over the period from 28 January 2011 to 5 June 2012 Dr van der Vlugt saw Ms Eavestaff on many occasions regarding her right shoulder pain. She had no recollection of Ms Eavestaff raising problems about her left shoulder until 5 June 2012. Her notes of that date disclose that "now has pain left shoulder as she takes all weight and carrying and lifting and pushing on this side". She said that the stated history of those practices were consistent with the development of left shoulder pain. At the consultation on 5 June 2012 Dr van der Vlugt ordered an X-ray and ultrasound of Ms Eavestaff's left shoulder. [18] Dr van der Vlugt's notes of 13 August 2012 record "now bursitis left shoulder related to overuse and bursitis". Dr van der Vlugt said that inflammation of the bursa had been caused because Ms Eavestaff had been doing repetitive motions with the left shoulder, more than she was used to doing. Under cross-examination Dr van der Vlugt said that she understood that Ms Eavestaff had been working on the checkout but conceded that she did not have a thorough understanding of Ms Eavestaff's duties. [19] Under cross-examination Dr van der Vlugt was also taken to the medical certificates she issued for Ms Eavestaff. The medical certificates issued from 28 January 2011 until 24 March 2011 state that no weights are to be lifted. Those issued during the period from 25 March 2011 until 24 May 2011 provide for occasional lifting and two of them refer to "specialist consultation re shoulder and ankle." The medical certificate dated 20 June 2011 provides that no lifting of more than 5 kilograms and no over the shoulder work is to be undertaken. These restrictions continue throughout 2011 and into 2012 including the certificate issued on 5 June 2012. [20] Dr van der Vlugt acknowledged under cross-examination that she was not properly qualified to disagree with the specialist orthopaedic opinions. Dr Malcolm Wallace, Orthopaedic Surgeon [21] Dr Wallace was called as a witness for the Appellant. Four reports prepared by him were admitted into evidence - the first was a report of 24 April 2013 (Exhibit 14); the second was a report of 10 May 2013 (Exhibit 15); the third a report of 25 May 2013 (Exhibit 16) and the fourth was a report of 5 June 2013 (Exhibit 17). [22] In his third report Dr Wallace records that "your client states that in the original injury she injured her left shoulder abducting against resistance. She states that she was principally concerned with her other injuries and her left shoulder did not start to become a problem until some twelve months after the injury". Later, he records that: "She states that her left shoulder was further aggravated on her return to work by the nature and conditions of her work. She continues to suffer from ongoing symptoms with respect to the left shoulder including pain and restriction of motion". [23] Dr Wallace clarified in examination in chief that Ms Eavestaff reported the left shoulder symptoms first arose 12 months after the original injury and the aggravation occurred as a result of the repetitive nature of the work she was required to undertake. [24] In his report of 5 June 2013 Dr Wallace states: "… it is my opinion that the injury to your client's left shoulder occurred as a direct consequence of her employment by way of injury to the left shoulder at the time of the initial accident and the subsequent development of adhesive capsulitis …". -- 3 of 8 -- 4 Therefore Dr Wallace concluded that employment was a significant contributing factor to the injury. In his opinion the diagnosis of adhesive capsulitis was consistent with the characteristics of pain and restriction of motion in the left shoulder. [25] He said it was not possible to be conclusive as to whether the left shoulder condition arose as a consequence of the abduction of the trolley on 24 January 2011 or as a consequence of the overuse because of the injury to her right shoulder. However, he opined that it was more likely that overuse precipitated her left shoulder capsulitis. [26] Dr Wallace rejected the opinions of Dr Ivers and Dr Nicoll that the symptoms in the left shoulder related to age related degeneration and constitutional factors. While Ms Eavestaff may have some rotator cuff impingement, her problem now was adhesive capsulitis because she has painful restriction of motion in the left shoulder. [27] Under cross-examination Dr Wallace agreed that adhesive capsulitis or frozen shoulder can occur as a result of trauma or can occur spontaneously and it is most prevalent among women aged between 40 and 60. [28] Dr Wallace said that based on the chronological order of his notes he believed Ms Eavestaff first developed problems in her left shoulder while working on the express lane when she undertook some heavy lifting. As a result of this Ms Eavestaff requested a change to the online area where the work was sedentary. Ms Eavestaff reported that she was able to perform work there without significant problems. Dr Wallace did not understand that the online work involved picking and packing of orders and thought it was basically desk and computer work. Dr Angus Nicoll, Orthopaedic Surgeon [29] Dr Nicoll was called as a witness by Q-COMP. Dr Nicoll provided three reports - the first dated 8 May 2012 (Exhibit 10) which dealt with Ms Eavestaff's left foot; the second one dated 9 October 2012 (Exhibit 11) and the third dated 22 October 2012 (Exhibit 12). Only the latter two are directly relevant to the matter in issue in these proceedings. [30] In his report of 9 October 2012 Dr Nicoll recorded the following details of the injury: "Ms Eavestaff noted the insidious onset of the left shoulder anterolateral pain in April 2012. The pain came on steadily. There was no specific trauma or injury in April this year. Ms Eavestaff expressed the view that her left shoulder symptoms may be related to increased left shoulder activity in compensation for decreased use of the right upper limb which has been previously diagnosed with a resolving frozen shoulder syndrome". [31] He concluded in his Summary: "The history and examination is consistent with left shoulder rotator cuff impingement syndrome in the absence of a mechanically significant rotator cuff tear. The impingement is most commonly a result of a combination of tendinopathy, bursitis and subacromial impingement. I have referred Ms Eavestaff for an x-ray and MRI scan in an effort to define the pathology and exclude unlikely possibilities such as major rotator cuff tear or underlying degenerative changes. On the evidence so far I consider the left shoulder rotator cuff impingement syndrome to be caused by age related degenerative change and constitutional predisposition. I am not of the opinion that work has been a significant contributing factor". [32] Dr Nicoll's report of 22 October 2012 dealt with the findings of the diagnostic imaging and his resultant opinion: "Findings - There is a supraspinatus tendinopathy and associated mild subacromial bursitis. There is a small intrasubstance tear of the supraspinatus insertion which I would not consider to be mechanically significant. There are mild degenerative changes of the acromioclavicular joint. Opinion The investigation is consistent with, and does not alter, my opinion that the diagnosis is left shoulder rotator cuff impingement syndrome which is not work related. Although work related activity may exacerbate the symptoms of the condition, I consider that the condition has developed as a combination of constitutional predisposition and age related degenerative change." [33] In examination in chief Dr Nicoll said that the reason for his opinion that work was not a significant contributing factor to the injury was that there was no work related injury or activity to which the onset of the condition could -- 4 of 8 -- 5 be attributed. The patient's impression that the condition had occurred due to compensation for overuse of that limb while the other limb was injured is not a typical or well understood mechanism of injury. On the balance of probabilities then, Dr Nicoll concluded that it was more likely the injury had occurred as a matter of age related degenerative change and constitutional predisposition than work related activity. He also noted that the types of symptoms that Ms Eavestaff was complaining of were consistent with the findings he recorded. [34] Dr Nicoll also said that if Ms Eavestaff was complying with directions from her General Practitioner to minimise lifting of more than 5 kilograms and limit over the shoulder work then it was less likely that she suffered from an overuse injury. Moreover, any symptoms of an overuse injury would be more likely to occur where the work activities occurred in the months immediately prior to the injury rather than many months earlier. [35] Dr Nicoll disagreed with the opinion of Dr Wallace in several respects. Dr Nicoll said that when he examined Ms Eavestaff on 9 October 2012 he found a relatively free range of motion of the left shoulder not consistent with adhesive capsulitis or frozen shoulder syndrome, further, adhesive capsulitis does not typically result from the type of traumatic event described by Dr Wallace, i.e., the tipping of the trolley on 24 January 2011 and Ms Eavestaff holding up the trolley with her left arm. Had Ms Eavestaff sustained injuries to her left rotator cuff mechanism at that time Dr Nicoll would have expected her symptoms to have exacerbated well before April 2012. [36] Under cross-examination Dr Nicoll agreed that tendinopathy can become symptomatic spontaneously, as a result of a single trauma or over a period of time where there is a more mild or repetitive form of trauma. He said that for a degenerative condition in the opposite limb to be aggravated, moderate or heavy manual work with the left upper limb or repetitive manual work at or above shoulder height would be required. He further agreed that activities like climbing ladders where the weight was taken on upper limbs to relieve pressure from an injured ankle and pushing a heavy shopping trolley could be activities which are consistent with an insidious onset. However, that type of activity may have exacerbated the symptoms in the opposite shoulder but would not have aggravated or caused them. [37] In re-examination Dr Nicoll said that if Ms Eavestaff was only climbing ladders for about eight weeks in mid-late 2011 then such a passage of time between the activity and the onset of symptoms was unlikely to have significantly contributed to the aggravation. In respect of the work performed in online shopping Dr Nicoll said that it was conceivable that that type of activity if done regularly could exacerbate the symptoms but was unlikely to aggravate or cause the condition. However, if the work involved repetitively obtaining heavy objects from shoulder height or above then that would influence his view. Dr Robert Ivers, Orthopaedic Surgeon [38] Dr Ivers was also called as a witness for Q-COMP. Dr Ivers prepared one report dated 21 June 2012 (Exhibit 17). It appears that this report was prepared primarily in relation to the right shoulder injury, although some reference is made to the left shoulder. A file note of a teleconference held between Dr Ivers and Counsel for Q-COMP signed by Dr Ivers on 28 June 2012 was also tendered (Exhibit 18). In preparation for the teleconference Dr Ivers had been provided with the reports of Drs Wallace and Nicoll. [39] For his report Dr Ivers had been provided with the reports from various Orthopaedic Surgeons including those who had been involved in the assessment of Ms Eavestaff's right shoulder. In relation to this injury Dr Ivers noted in his report that "[f]rom the point of view of the right shoulder, it appears that the final diagnosis has been post traumatic frozen shoulder syndrome which has virtually resolved." [40] In his report of 21 June 2012 Dr Ivers recorded the history given by Ms Eavestaff of "pain and catching in the region of the left shoulder that has been present for the last two months". Dr Ivers said he questioned Ms Eavestaff about whether there had been an accident in which she sustained an injury to her left shoulder and that there had not been; only an insidious onset of symptoms. He also noted in that report that Ms Eavestaff was developing signs and symptoms suggestive of rotator cuff tendonitis on the left side. [41] On consideration of all of the medical evidence, Dr Ivers said in his oral evidence he concluded that Ms Eavestaff's left shoulder symptoms were likely to be constitutional for four reasons: (i) the time frame since the event in January 2011; (ii) that the concept of compensatory injury to a shoulder when someone has an injury on the opposite shoulder is not generally supported in the orthopaedic literature; (iii) Ms Eavestaff had a similar range of motion on the left side as to the right side where there was a restricted range of motion. As a result Dr Ivers concluded that she had developed mild frozen shoulder syndrome and bilateral frozen shoulder syndrome is constitutional in nature; and (iv) the MRI organized by Dr Nicoll showed some evidence of down-sloping acromion which can also contribute to the bursitis and that is itself constitutional. -- 5 of 8 -- 6 [42] Under cross-examination Dr Ivers said that he agreed, in retrospect with Dr Nicoll's opinion, that the diagnosis was frozen shoulder syndrome. This was because when he, Dr Ivers, saw Ms Eavestaff the condition had not been fully blown and could be confused with other conditions. The essence of the diagnosis of frozen shoulder syndrome is global loss of movement. Because she has the stiffness on the right side it was more likely that the left side was also frozen shoulder syndrome. [43] In the file note Dr Ivers agreed with Dr Nicoll that Ms Eavestaff's left shoulder symptoms were caused by age related degenerative change and constitutional predisposition. Under cross-examination Dr Ivers clarified this statement. He said that the age related degeneration was evident on the investigations but it is not necessarily causative of the frozen shoulder syndrome. In fact there is no evidence in the orthopaedic literature to link degenerative change to frozen shoulder syndrome. The key comment was the constitutional condition as it is most important in the development of the frozen shoulder syndrome. [44] Dr Ivers was prepared to accept that the trauma on 24 January 2011was related to the development of Ms Eavestaff's right frozen shoulder syndrome however he considered this was controversial. The medical literature does not support a relationship between trauma and the onset of frozen shoulder syndrome but based on the timing of the trauma he was prepared to accept it. However, the most common presentation of frozen shoulder syndrome is that it comes on "out of the blue". In his view this was the most likely reason for the bilateral frozen shoulder syndrome. [45] Dr Ivers accepted that age related degeneration could be aggravated by repetitive overhead or shoulder activity. However, he did not accept that Ms Eavestaff's more frequent use of her left limb to compensate for the right frozen shoulder caused symptoms on the left side because such a contention was not supported in the medical literature. Dr Ivers rejected the contention that this was an over time injury because the history and clinical examination was not supportive of that. Conclusion [46] The Appellant submits the only case being put before the Commission is that the left shoulder injury developed as a result of overuse, to compensate for the right shoulder injury. The Commission will proceed to decide the appeal on that basis. [47] The Appellant also contends that the attack on Ms Eavestaff's credit by Q-COMP was unwarranted and notes that only Ms Eavestaff gave direct evidence about the nature of the accident as well as her duties in the Robina store on her return to work after the accident. The Commission is prepared to accept that Ms Eavestaff persevered at work while experiencing some injuries that might have challenged other workers, however, some of her evidence is capable of being considered against the SDPs; the rehabilitation case notes and the histories as recorded by the various medical practitioners. [48] In this regard, it is noted that in evidence Ms Eavestaff said that she experienced pain in her left shoulder on 24 January 2011, the date of the trolley accident, and conceded that the hearing was the first time she had mentioned this. It is also the case that when Dr Wallace asked Ms Eavestaff whether she could identify any trauma to her left shoulder and arm, she mentioned holding the trolley off her upper body in the accident on 24 January 2011. Ms Eavestaff did not provide this information to any other doctor. In the circumstances the Commission does not consider there was any trauma to or pain felt in Ms Eavestaff's left shoulder as a result of the accident on 24 January 2011. For the sake of completeness, I find that Ms Eavestaff's left shoulder condition did not stem from the accident on 24 January 2011. The lapse of time from the date of the accident to the development of symptoms in the left shoulder is according to the medical evidence inherently unlikely. [49] It appears that Ms Eavestaff consistently reported to the rehabilitation case managers and various doctors that her left shoulder symptoms came on insidiously in late April/early May 2012. This is to be contrasted with her oral evidence where Ms Eavestaff referred to experiencing a tearing type feeling in her left shoulder in late April 2012. Again, the hearing was the first time any mention of a tearing type sensation in her left shoulder. The Commission rejects this oral evidence and finds that there was an insidious onset of left shoulder symptoms in late April/early May 2012. The raising of two matters for the first time in the proceedings does not assist Ms Eavestaff's credit. [50] Q-COMP pressed the Commission to accept the diagnosis of Dr Nicoll which was left shoulder rotator cuff impingement syndrome. The diagnosis of a specialist is to be preferred to that of a General Practitioner and Dr van der Vlugt deferred to the expertise of the Orthopaedic Surgeons. Having considered each of the diagnoses made by the four doctors, I am inclined to accept that of Dr Nicoll as he had the benefit of diagnostic imaging in reaching his opinion. His diagnosis is consistent with the imaging results. -- 6 of 8 -- 7 [51] The key questions in this appeal are whether the injury arose out of or in the course of employment and whether employment was a significant contributing factor to the injury. In determining these questions consideration needs to be given to Ms Eavestaff's evidence about her duties and the evidence of the three Orthopaedic Surgeons. [52] The Commission acknowledges that both the medical records of Dr van der Vlugt and the rehabilitation case notes show that Ms Eavestaff regularly complained about her right shoulder injury. The Appellant submits that from this the inference should be drawn that this favours Ms Eavestaff's evidence that she was using her left arm to compensate for the difficulties being experienced with her right arm. The Commission is prepared to accept the evidence of Ms Eavestaff that this is what happened. However, this does not necessarily mean that the next inference which the Appellant seeks that I draw, that the right shoulder injury occurred because of overuse, can be drawn. [53] Dr van der Vlugt believed that Ms Eavestaff's left shoulder condition resulted from overuse. She understood that Ms Eavestaff worked on the check outs but it was obvious she did not have a detailed understanding of the duties performed by Ms Eavestaff nor of her rotation into various work areas. In the circumstances the Commission finds that it is unable to rely on Dr van der Vlugt's opinion about the cause of the left shoulder condition. In any event a specialist opinion is to be preferred. [54] The Commission also finds significant shortcomings in Dr Wallace's evidence. I accept he was relying on his notes which were taken from the information provided by Ms Eavestaff. However, Dr Wallace's evidence showed he had little knowledge of the work performed by Ms Eavestaff, the timing and duration of her work in express check outs and the nature of the work performed in online shopping. In particular, he had understood that her left shoulder symptoms had developed when she was working on the express check outs but this is not her evidence. When "educated" about these matters in re-examination, he maintained his view that overuse led to the onset of the condition. The Commission considers that Dr Wallace was trying to maintain some semblance of credibility given the foundation for his opinion had been significantly undermined in cross- examination. In the circumstances the Commission finds that Dr Wallace's evidence about the contribution of work to the injury is unreliable. [55] Had her symptoms developed at or about the time she was working her five hour shifts on the express checkout the Commission may have given greater consideration to the impact of repetitive work on the condition. However, Ms Eavestaff did not report any symptoms in her left shoulder until 12 months after leaving this area. [56] The next area of work that Ms Eavestaff was moved to was grocery where she replenished stock. Initially Ms Eavestaff worked in any aisle but after about three or four weeks her work was restricted to the health and beauty aisle. Ms Eavestaff said that in her work in grocery she was required to climb a step ladder and would take most of the weight on her left arm. At this time Ms Eavestaff was under a medical certificate restricting her to no over shoulder work and no lifting of more than five kilograms. Ms Eavestaff said in evidence that she generally complied with these restrictions. The evidence from Dr Nicoll is that heavy manual work or activities repetitively beyond shoulder height are required to aggravate or cause the condition sustained by Ms Eavestaff. If she generally complied with these restrictions as Ms Eavestaff confirmed in evidence that she did, then it is apparent that her duties were not of the type described by Dr Nicoll. [57] The Appellant submits that Ms Eavestaff's request to move to the online shopping was because she was having trouble coping with the demands of the work in the grocery area. However, the evidence from Ms Eavestaff is that the move occurred for two reasons - one was because she was having difficulty constantly standing as she had plantar fasciitis in her left foot and the second related to her difficulties experienced in lifting. The work performed in online shopping was picking and packing of orders. On occasion Ms Eavestaff would also be required to perform work in the grocery area. The Commission further notes that from January 2012 Ms Eavestaff commenced full time employment. However, medical restrictions on her duties continued. On consideration of these matters the Commission is satisfied that the nature of the work performed by Ms Eavestaff in online shopping was not sufficiently arduous, repetitive or performed overhead to cause the onset of the symptoms in her left shoulder. [58] The Appellant criticised both Dr Nicoll and Dr Ivers for not taking a sufficient history from Ms Eavestaff. To some extent the Commission accepts this criticism of Dr Ivers as valid, given his report was made for the purposes of her right shoulder condition, however, it is noted that he also examined Ms Eavestaff's left shoulder. The same cannot be said of Dr Nicoll who saw Ms Eavestaff specifically for her left shoulder condition. For this reason the Commission prefers the evidence of Dr Nicoll to that of Dr Ivers. Dr Nicoll squarely records that "Ms Eavestaff expressed the view that her left shoulder symptoms may be related to increased left shoulder activity in compensation for decreased use of the right upper limb which has been previously diagnosed with resolving frozen shoulder syndrome." -- 7 of 8 -- 8 [59] Although his opinion was not accepted, the Appellant noted, fairly, that Dr Nicoll was a reliable witness given that he was prepared to make concessions. Although Dr Nicoll was prepared to give consideration to overuse the evidence does not support the degree of overuse that he considered necessary in order to establish, on the balance of probabilities, the injury as having been caused or aggravated by overuse. Certain duties might have exacerbated her symptoms but did not aggravate or cause her condition. Dr Nicoll is of the opinion that the condition is as a result of a combination of age related degenerative change and constitutional predisposition. The age related degenerative changes were present on the films from the diagnostic imaging. Dr Nicoll had the benefit of both examining Ms Eavestaff and reviewing the films of the imaging. After consideration of all of the medical evidence the Commission concludes that the opinion of Dr Nicoll is to be preferred for the reasons set out. [60] Given the nature of the work performed and in reliance on Dr Nicoll's opinion, the Commission finds that the injury to Ms Eavestaff's left shoulder is left shoulder rotator cuff impingement syndrome and employment was not a significant contributing factor to the injury. The Commission is therefore satisfied that her injury is not one that falls within s. 32(1) of the Act. [61] The appeal is dismissed and the decision of the Review Unit Q-COMP is confirmed. [62] The Commission reserves all questions of costs. [63] Order accordingly. G.K. FISHER, Industrial Commissioner. Hearing Details: 2013 9 and 10 July Released: 19 September 2013 Appearances: Mr J. Dwyer, Counsel instructed by Sciacca's Lawyers. Mr P. O'Neill, Counsel directly instructed by Q-COMP. -- 8 of 8 --