Di Cello v Q-COMP [2008] ICQ 19 (2008) 188 QGIG 178

[Extract from Queensland Government Industrial Gazette, Dated 20 June 2008, Vol. 188, No. 8, pages 178-180] INDUSTRIAL COURT OF QUEENSLAND Workers' Compensation and Rehabilitation Act 2003 - s. 561(1) - appeal against decision of industrial magistrate Lisa-Marie Di Cello and Q-COMP (C/2008/15) PRESIDENT HALL 6 June 2008 DECISION The Appellant injured her right shoulder, neck and elbow on 31 January 2007. The injuries were work-related and the Appellant claimed benefits under the Workers' Compensation and Rehabilitation Act 2003 (the Act). The Appeal does not concern that claim. The Appeal concerns a subsequent attempt by the Appellant to enlarge her claim to embrace a claim for symptoms in her left arm and left shoulder. The attempt failed. (See WorkCover's letter of 12 April 2007). The Appellant sought a Statutory Review of WorkCover's decision. By a letter dated 28 June 2007, Q-COMP confirmed WorkCover's decision. There was an appeal to the Industrial Magistrate's Court at Southport. It was heard on 17 December 2007 and dismissed on 11 January 2008. The Appellant now seeks redress in this Court. The short issue before the Acting Industrial Magistrate was whether the symptoms in her left shoulder and elbow were caused by overuse of her left arm because of the work-related injuries to her right limb. (I should add that the Appellant was right handed.) The medical witnesses called by the Appellant were Dr Tomlinson (a neurosurgeon), Dr Pentis (an orthopaedic surgeon) and Dr Liu (the treating orthopaedic surgeon). Q-COMP called Dr Stabler (an orthopaedic surgeon). After a careful review of the evidence, the Acting Industrial Magistrate concluded: "On the whole of the evidence before me I accept and prefer the evidence of Dr Stabler for the following reasons: 1. He saw M/s Di Cello on 29 March 2007 and the injury to the left side was reported to him at that time as 'the claimant has been experiencing pain in the left shoulder for the last two weeks.'; 2. He canvassed the left shoulder injury at that time; 3. His opinion is based on his consultation at that time and the history given by M/s Di Cello; 4. His opinion is based on significant experience in this area; 5. I find that the opinion of Dr Tomlinson has not assisted this court in determining this matter; 6. Dr Pentis was not able to rule out normal degeneration and formed the view that he would have expected something more than day to day activities to cause injury to the left side. This is not the case on the evidence before me; 7. Dr Liu does not become aware of the left side injury until 26 September 2007, despite M/s Di Cello having a consultation with him on 30 April 2007. She does not raise the issue with him at that time. He examined the shoulder on 10 December 2007; 8. To my mind the evidence supports a finding in support of the opinion of Dr Stabler. I accept and find on the balance of probabilities that M/s Di Cello was using her left side instead of her right side subsequent to the initial injury, however she was only involved in normal day to day activities during this time. I accept and find on the balance of probabilities that the injuries to the left side of M/s Di Cello are due to constitutional factors. I do not accept that these matters fall within the definition of 'injury' pursuant to the provisions of Section 32 of the Act. I do not accept that there was an initial injury to the left side during the initial incident on 31 January 2007 and there has been any aggravation pursuant to the provisions of Section 32(3)(b).". I accept the submission that the circumstance that Dr Liu did not become aware of the left shoulder and elbow injury until 25 September 2007, despite having a consultation with the Appellant on 30 April 2007 (after the commencement of the symptoms), neither undermines Dr Liu's opinion nor throws light on the cause of the symptoms. In other circumstances the late disclosure to Dr Liu might reflect on the Appellant's credibility. However the Acting Industrial Magistrate expressly found her to be credible. Dr Tomlinson's evidence was too readily put aside. With respect to the Acting Industrial Magistrate, Dr Tomlinson did not defer to the orthopaedic surgeons. Dr Tomlinson was prepared to defer to the treating orthopaedic surgeon, viz., Dr Liu but as to the others said: "Is this really a case where you would defer to the opinions of Dr Liu, who is an orthopaedic surgeon, and other orthopaedic surgeons who have examined the appellant in this instant in respect to diagnosing the problem in respect to the left shoulder? -- Well, you know, obviously at the end of the day the court, you know, is going to have to, I guess, use the orthopaedic argument to weight their evidence more heavily than mine. If they want to do that, that is fine, but from my point of view as a clinician who sees, you know, lots of people with lots of neck and shoulder -- 1 of 2 -- 2 and, you know, elbow conditions, arm pain of various sorts, I would say that what she is telling me is consistent with, you know, what you see in normal day to day clinical practice. So if you wanted to talk about operative technique, that would be fine, defer to the orthopaedic surgeons, an [sic] as I say the most important person to refer to is her treating doctor, Dr Liu.". That said, whilst the evidence of Dr Tomlinson was very helpful on the nature of the left limb injuries (as was the evidence of Dr Liu) on the question of "cause", his evidence was entirely intuitive (as was the evidence of Dr Liu). Both surgeons really relied on the proposition that the proximity in time between over-use of the left limb and the symptoms suggested a nexus. The surgeons whose evidence about cause was more expansive were Dr Pentis and Dr Stabler. The evidence of Dr Pentis was: "Right? --- Even though I know that Dr Stabler said in one of his reports in normal activities it won't, but sometimes normal activities will aggravate something that's there that may go with time or with stress. And what do you - I don't want you to comment on what Dr Stabler might think normal activities are, but what would you put normal activities down to? -- Well, most normal things around the house, if they're below shoulder level may tend not to give you any problems. But if you decide to sort of hang a lot of washing, do some painting, do some scrubbing or cleaning that's high up, even do polishing activities below shoulder level, you can find that it stirs up the shoulder musculature. So in effect, more rigorous activities using your left arm --?-- Usually is, something that's more repetitive and rigorous, specifically repetitive as well.". It was not the Appellant's evidence that she had used her left limb to perform tasks described by Dr Pentis. The Appellant's evidence was that (with difficulty) she was using her left limb for dressing, toileting, cleaning her teeth, drinking etc. That left the Acting Industrial Magistrate, with the evidence of Dr Stabler that the symptoms were constitutional and spontaneous. In cross-examination Dr Stabler explained: "No, there is no such study. The reason I give my opinion is that I've been doing this for twenty-five years and I have an extraordinarily large number of people who have been totally disabled in one upper limb and use the other limb completely normally without having any problems at all, even though that is their only limb.". The Acting Industrial Magistrate chose to act on Dr Stabler's evidence and, in my view, was entitled to do so. I dismiss the Appeal. I reserve all questions as to costs. Dated 6 June 2008. D.R. HALL, President. Released: 6 June 2008 Appearances: Mr M. Pope instructed by Derek & Dwyer Lawyers, for the Appellant. Mr S.A. McLeod, directly instructed, for the Respondent. Government Printer, Queensland The State of Queensland 2008. -- 2 of 2 --