WORKERS COMPENSATION COMMISSION

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1 WORKERS COMPENSATION COMMISSION CERTIFICATE OF DETERMINATION (Issued in accordance with section 294 of the Workplace Injury Management and Workers Compensation Act 1998) MATTER NO: /10 APPLICANT: Jacqueline Theresa Jenneke RESPONDENT: Myer Stores Ltd DATE OF DETERMINATION: 25 June 2010 The Commission determines: 1. Respondent to pay $ per week from 24 July 2002 to 20 November 2008 and $ per week from 21 November 2008 to date and continuing pursuant to section Respondent to pay section 60 expenses. 3. Respondent to pay the Applicant s costs as agreed or assessed. A brief statement is attached to this determination setting out the Commission s reasons for the determination. I CERTIFY THAT THIS PAGE AND THE FOLLOWING PAGES IS A TRUE AND ACCURATE RECORD OF THE CERTIFICATE OF DETERMINATION AND REASONS FOR DECISION OF BRUCE MCMANAMEY, ARBITRATOR, WORKERS COMPENSATION COMMISSION. Darren Moore Senior Dispute Services Officer By Delegation of the Registrar For REGISTRAR

2 STATEMENT OF REASONS BACKGROUND 1. The Applicant claims weekly compensation from 24 July 2002 to date and continuing for incapacity alleged to result from injuries on 2 October The Applicant claims she injured her neck, left shoulder and back. The Respondent does not dispute injury to the neck and left shoulder. Permanent impairment benefits have been paid in respect of those injuries. The Respondent disputes there was an injury to the back. The Respondent also disputes there is any incapacity that results from the accepted injuries to the neck and left shoulder. ISSUES FOR DETERMINATION 2. The parties agree that the following issues remain in dispute. Matters Previously Notified As Disputed 3. Are the current restrictions in the neck and left arm causally related to the injuries of 2 October 2001? Did the Applicant suffer injury to the back in the incident of 2 October 2001? PROCEDURE BEFORE THE COMMISSION 4. The parties attended a hearing on 15 June I am satisfied that 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 unable to reach an agreed resolution of the dispute. EVIDENCE Documentary Evidence 5. The following documents were in evidence before the Commission and taken into account in making this determination: (1) Application to Resolve a Dispute and attached documents; (2) Applications to Admit Late Documents dated 22 April 2010 and 28 May 2010 with attached documents. (3) Reply and attached documents; (4) Application to Admit Late Documents dated 9 June 2010 and attached documents. Oral Evidence 6. No oral evidence was called. FINDINGS AND REASONS Incapacity resulting from injury to neck and left shoulder

3 7. The Respondent does not dispute that the Applicant suffered an injury to the neck and left shoulder on 2 October In January 2004 a s.66a agreement was registered which provided for payments in respect of a 15% permanent impairment of the neck, 12% loss of efficient use of the left arm at or above the elbow and 25% loss of sexual organs together with $13,250 for pain and suffering. The Respondent disputes that there is any causal connection between those injuries and any incapacity currently suffered by the Applicant. 8. The Applicant relies upon a statement which is said to be dated on 5 October the copy of the statement in the Application is undated and unsigned however the Respondent has taken no issue with the admissibility of the statement and accordingly I give this statement the same value as if it is signed. 9. The Applicant says that she suffered injury on 2 October 2001 as a result of stumbling and falling from a step ladder. She says that she was initially off work for about 2 weeks. The pain in her neck started to increase and she was referred to physiotherapy. This was a shooting pain which extended down her arm and into her fingers. She persisted with physiotherapy for some time and underwent traction. She says she was able to return to part time light duties and eventually to full pre-injury hours but could not cope with the duties. She says she resigned her employment in 2002 due to her ongoing and persistent symptoms. She said she has not worked since that time. 10. She says she helps her husband out in his business though she does not get paid for this. Initially she was helping out for 2-6 hours per day but now she can only do 6 hours per week due to her ongoing and worsening symptoms. 11. The Applicant s current GP is Dr Seeto. Her previous GP Dr Doctor has since retired. 12. She says she still suffers symptoms and restrictions that continue to worsen with time because of her injuries. The symptoms and restrictions she suffers includes ongoing discomfort and pain which limits the length of time she can work without a break and a type of work she can perform. She started a small business in May (2009) however she does not say what this business was or whether it is profitable. She said she has told the details of her injury to the doctors and that she has also told them about her reduced capacity to fully participate in normal employment and social, domestic and recreational activities. 13. The Applicant was examined by Dr Matalani at the request of the Applicant s solicitors on or about 10 June He was told that the Applicant initially suffered injury on 2 October She was off work for approximately 2 weeks but developed pain in her neck and was referred to physiotherapy. She developed shooting pain in her neck, radiating into the left and particularly up a part of the arm. She developed pins and needles going down to her fingers particularly her little ring finger. She returned to part time light duties however she had difficulties performing her exercises at work and resigned from employment in The Applicant was paid lump sum compensation on 9 January The Applicant told Dr Matalani that following the lump sum award her condition steadily deteriorated. Her symptoms became more intense. She said her neck pain became more intense and constant. She had numbness and pins and needles in her left arm and hand and particularly the left little and ring finger. She was dropping objects and her knack radiated down into the left shoulder region. 14. The Applicant had been referred for an MRI scan on 17 March According to Dr Matalani that scan demonstrated degenerative disc disease at C6/7 and there was muscle spasm evidenced by loss of the normal cervical lordotic angle.

4 15. On examination there was mild loss of the normal cervical lordosis. There was mild to moderate tenderness. All neck movements were reduced in varying degrees. The Applicant complained of diffuse discomfort going down into the ulna aspect of the left arm and pins and needles in the ulna aspect of the left hand affecting the left little and ring fingers. There was reduced and altered sensation to light touch and pin prick affecting the ulna aspect of the left hand, little and ring fingers. The Applicant also complained of pain in her low back where there was a slight restriction of movement. There was no muscle guarding or muscle spasm reported. Dr Matalani thought that the Applicant suffered from soft tissue injury and chronic musculo-ligamentous strain of the neck and back. She had symptoms in the left arm consistent with nerve root irritation. Dr Matalani was told that in August 2002 the Applicant has resigned her position. She assisted her husband in the family business performing primarily office and administrative work. She initially worked 2 6 hours per day but had to gradually reduce her hours and she was currently working an average of 6 hours per week. 16. Dr Matalani thought the Applicant was unfit for her pre-injury duties which required heavy manual handling activities and repetitive bending of her neck and back. She thought she d be fit for sedentary employment, primarily office work, provided she was able to obtain regular rest breaks and alternate between sitting and standing when required. 17. Dr Matalani had previously seen the Applicant in July At that stage movements of the cervical spine were slow. Flexion, extension, right lateral flexion and rotation together with left lateral flexion and rotation were all restricted. At that stage there was no complaint of radicular pain. The Applicant did complain of pain in her left arm which Dr Matalami diagnosed as soft tissue injury and myofascial pain affecting the left arm. At that stage he thought the Applicant had reached maximum medical improvement. 18. The Applicant had been seen by Dr Stenning in May At that stage the Applicant had undergone both x-rays and CT scanning of her cervical spine which was normal. Dr Stenning's examination findings are minimal however he did conclude that the Applicant had chronic soft tissue damage to the back, neck and left arm with possible neurological irritation in the left arm. He thought the Applicant s condition was permanent. 19. Raymond Cook saw the Applicant in June At that stage she was complaining of pain in the left shoulder and pain in the lateral side of her neck. She was occasionally getting some dysaesthesia in the little and ring fingers of the left hand. Dr Cook thought that the dysaesthesia described by the Applicant was more than you would expect from an ulna nerve injury. Dr Cook recommended an MRI scan of the cervical spine. It does not appear that an MRI scan was carried out at that time. 20. Dr Rao saw the Applicant in August At that stage she was complaining of shooting pains in her neck and also into the left arm and also had pins and needles in the left hand in the fifth and fourth finger. Dr Rao also diagnosed back strain, chronic soft tissue damage to the neck and chronic soft tissue damage in the left arm with possible neurological irritations. 21. The Respondent submits that I would not be satisfied that there was any causal connection between the injury in 2001 and the symptoms now being suffered. The Respondent points out that when the Applicant ceased work she stated in a letter dated 8 July 2002 that she was resigning to assist her husband in a business venture. She stated she was performing administrative functions and would be paid a wage. It was submitted that there was insufficient information concerning the state of the Applicant s neck, back and left arm between 2002 and There are certainly no medical reports covering that period.

5 22. The clinical notes of Dr Doctor disclose that he was consulted in October The Applicant was complaining of pain in the neck and the left arm with paraesthesia in the left fourth and fifth fingers. The Applicant saw the doctor on a fairly regular basis complaining of ongoing neck pain and headaches. On 7 September 2002 the doctor recorded the Applicant was now working from home performing clerical duties with a bit of lifting occasionally. The symptoms were much better. On 4 October 2002 the Applicant was complaining of headaches. On 13 May 2003 there is another entry about headaches taken down in a different handwriting. That entry notes neck injury at work in October The entry also contained the reference to shoulder pain and an examination of the neck which appears to record reduced lateral flexion. Neck and shoulder pain is again referred to on 15 May There do not appear to be any subsequent references to neck, shoulder or back pain in the doctor s notes though the Applicant did continue to consult the doctor on a regular basis about various medical problems. The notes end on 7 December Dr Seeto first saw the Applicant on 14 August 2008 when she consulted him about a matter unrelated to her work injury. On 16 October 2008 the Applicant complained of headaches which were associated with complaints of flashing lights and blurred vision. These seem to be different to the headaches complained of in On what is probably 20 November 2008 the Applicant was complaining of pain and paraesthesia in the left fourth and fifth fingers worse when she lifts her arm. Dr Seeto was told of the work injury when the Applicant fell from a ladder and injured her neck. On 27 November 2008 the Applicant again saw Dr Seeto. He records pain from left shoulder tip to left finger and paraesthesia of the left fourth and fifth fingers. He notes the pain had been there since 20 November There was no obvious cause, the pain being of gradual onset. He did note that the Applicant had been riding more recently. The Applicant was referred to Dr Manohar. The Respondent submits that I should conclude that there was a fresh injury in November The absence of complaints to doctor between 2003 and 2008 is certainly suggestive of the Applicant s condition having resolved during that time. In her statement the Applicant says that she had continuing problems with her injuries which had worsened with time. There was no application to cross-examine the Applicant. 25. There is no medical opinion before me which considers the symptoms experienced in 2008 to be the consequence of another injury or condition. Dr Seeto s notes indicate that the Applicant associated her problems in November 2008 with the work injury. The onset of pain in the left shoulder seems to be associated with increased activities. That would be consistent with a recurrence of the earlier injury. More significantly the notes only indicate an onset of pain in November The Applicant also complained of paraesthesia in the fourth and fifth fingers which is not described as being of recent onset. As I have already noted, paraesthesia in the fourth and fifth fingers was a feature of the Applicant s condition in When that factor is taken into account it is more likely than not that the symptoms being experienced since 2008 to date are a recurrence of the earlier injury. 26. For those reasons I am satisfied that the Applicant s current restrictions in her neck and left arm result from the injury in Injury to the back 27. With respect to the back the position is different. The back was not a feature of the complaints recorded by Dr Doctor in In addition there is no complaint about the back recorded by either Dr Doctor or Dr Seeto and there has been no payment in respect of any

6 permanent impairment to the back. Furthermore examination of the back in August 2002 was normal. I am not satisfied that there is any continuing problem with the back which is causally related to the incident and injuries suffered on 2 October Incapacity 28. The parties agree that the Applicant s earnings but for injury are $1,000 per week. 29. The Applicant was seen by Earning and Vocational Assessments on 24 November A physical examination was carried out. Examination of the neck disclosed mild discomfort on palpating the right and left trapezi posterior to the supraspinatus fossae at the C7/T1 level. In the left arm and hand there was mild hyperaesthesia involved in the left palm, middle, ring and little fingers of the left hand compared with that of the right. It was reported that there was variability in sensation which did not follow any anatomically derived dermatome. This is a finding that is not consistent with the findings of other doctors which have reported a consistency of disturbed sensations in the little and ring fingers in a dermatomal distribution. There was reduced range of movement in the cervical spine. The Assessor thought the Applicant should be restricted to work where lifting is no more than 10kg, sitting and standing was no more than 60 minutes to time and walking for no more than 30 minutes. It was also advised that she avoid working with arms out in front or overhead for sustained periods of time. It was thought the Applicant was unfit for her pre-injury work but would be able to work fulltime in work that complied with the above restrictions. 30. The Applicant attended school to year 12. She had subsequently worked as an office manager, secretary and clerk prior to becoming a store person with the Respondent. She last worked as a secretary or personal assistant in The Assessor considered that the Applicant was fit to perform work as a program or project administrator, customer service manager or sales representative. All three jobs are said to have earnings greater than the Applicant s pre-injury earnings. 31. The Applicant is 42 years old, having been born on 22 June She has never worked as a program or project administrator, customer service manager or sales representative. The first two jobs require management experience and she has no experience in sales. In my view there is no realistic prospect of the Applicant obtaining and holding such employment. 32. The Applicant does have transferable skills as a secretary or personal assistant. Her ability to obtain such work will be restricted by the fact that she has not worked in that type of work for over 10 years. She will also need a position where she can stand up, sit down and move around at will. I accept that the Applicant s restrictions are as set out by Dr Matalami in his report of 10 June I think, however that she may be capable of full time employment though she would be vulnerable to exacerbations and would need to have intermittent time off work. Doing the best that I can with the information available I am of the view that the Applicant would be capable of earning $850 per week in some suitable employment. 33. The resulting difference is $150 per week. There are no matters that require any discretionary discount from that figure. 34. The medical evidence shows that there was a deterioration in the Applicant s condition in about November Before that time she had ceased seeking medical treatment whilst working in her husband s business. The Applicant statement does not disclose whether she earned any money in that business, however the earning and vocational assessments record

7 the Applicant as stating she did not receive any earnings with all profits being put back into the business. 35. Considering all of the evidence it seems to me that the period between 24 July 2002, when the Applicant ceased work with the Respondent, and 20 November 2008 the Applicant s ability to earn was slightly higher at $900 per week. Accordingly there will be an award for $100 per week during that period.

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