!Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT LATROBE VALLEY WORKCOVER DIVISION Case No. A12596889 LEE ANNE SHEARS Plaintiff v STATE OF VICTORIA Defendant --- MAGISTRATE: S GARNETT WHERE HELD: LATROBE VALLEY DATE OF HEARING: 23 JUNE 2011 DATE OF DECISION: 8 AUGUST 2011 CASE MAY BE CITED AS: SHEARS v STATE OF VICTORIA REASONS FOR DECISION --- Catchwords: s 98C/E Claim injury to left shoulder liability accepted for injury to left upper limb but rejected in relation to left elbow, nervous system and complex regional pain syndrome role of court in determining liability disputes in s98c/e claims. --- APPEARANCES: Counsel Solicitors For the Plaintiff Mr Horner Maurice Blackburn For the Defendant Mr Batten Minter Ellison
HIS HONOUR: 1 Ms Shears is 53 years of age and sustained an injury to her left upper limb on 9 October 2008 on a school camp whilst employed as a teacher with Sale College. The injury occurred when she was assisting the students as they were using a flying fox. She was required to stop the students when they came to the end of the flying fox run by holding onto an elastic cable/rope and dragging them back by use of the elastic cable/rope. She performed this activity for approximately 2 hours and felt pain in her left arm just below her shoulder. 2 Ms Shears lodged a WorkCover claim for weekly payments and medical expenses alleging injuries to her left shoulder/upper arm for which liability was accepted. She subsequently lodged a s98c/e claim for impairment benefits dated 1 December 2009, claiming the following injuries; torn supraspinatous/rotator cuff tendon left shoulder, nerve damage left shoulder and elbow, complex regional pain syndrome and central nervous system. She alleged that the following body parts were affected; left shoulder to fingertips, whole left arm and left elbow. In the Solicitor Inquiry Form which accompanied the letter serving the s98c/e claim, it stated that she was claiming impairment benefits for injuries sustained to the following body parts; left arm, left shoulder, central nervous system and left elbow. 3 The defendant accepts liability in relation to the injury to the left arm including the shoulder. However, it denies liability for the claimed injuries to the left elbow, nervous system and complex regional pain syndrome. The defendant contended that it is not for this court to unravel the alleged conditions affecting the left arm but merely to find that there has been a compensable injury to the left upper limb in order for the appropriate impairment assessment to occur. 4 Ms Shears gave evidence that as a result of the activity described she felt pain in her left arm just below the shoulder. She told the court that she 1 DECISION
consulted Dr Monash who arranged for x-rays and an ultrasound and he referred her to Mr Lyons, Orthopaedic Surgeon, who performed surgery on her left shoulder on 15th of December 2008. She gave evidence that in early 2009 she began to feel pins and needles in her left hand and was referred to Dr Blombery, Physician. Ms Shears told the court that she last worked on 12 December 2008 and remains in receipt of weekly payment of compensation. In cross-examination, she agreed that Dr Monash referred her to Associate Professor Hall and that the treatment she has received is not making her pain better and that her pain is not confined to the left arm. During crossexamination, a DVD of her activities on 12 and 13 June 2010 were shown to the court depicting Ms Shears using her left arm to carry shopping bags which indicated free and uninhibited movements of her left arm. Ms Shears told the court that she also experiences pain in the neck, left and right wrists, right elbow, left hip, left knee and pins and needles in the right wrist and hand. She gave evidence that she receives treatment for a pain syndrome and depression. Medical Evidence 5 Dr Monash reported to CGU on 29 July 2009 that an ultrasound performed on 23 October 2008 demonstrated that Ms Shears had a partial tear of her left supraspinatus tendon which was explored under anaesthetic by Mr Lyons on 15 December 2008 and he found that a moderate anterior acromial prominence had eroded the supraspinatus insertion and he undertook decompression and debridement. Dr Monash reported that following surgery Ms Shears failed to improve and developed numbness in her left hand which was found to be due to damage to the ulnar nerve of the left arm that occurred at the time of surgery. He also reported that an MRI of the left shoulder on 20 May 2009 revealed a full thickness tear of the supraspinatus with retraction and an abnormal ulna nerve at the elbow. 6 Mr Lyons reported that he performed a left shoulder acromioplasty, rotator 2 DECISION
cuff debridement and subacromial bursectomy on 15 December 2008. He diagnosed that Ms Shears had sustained a partial thickness left rotator cuff tear and subacromial bursitis. In June 2009, as a result of continuing symptoms and a recent MRI scan which indicated a full thickness supraspinatus tear, he suggested that Ms Shears undergo further investigative procedures. He also noted that Ms Shears was complaining about ulnar neuritis symptoms. An EMG conducted by Dr Subramanya, Neurologist, on 27 April 2009, indicated mild ulnar neuropathy of the left elbow. Ms Shears was referred by Dr Monash to Mr Evans, Orthopaedic Surgeon, for a second opinion. He reported on 6 July 2009 that Ms Shears was complaining of pain in the left shoulder region and down the arm into her hand. He observed that her left hand was swelling and that she reported a history of colour changes in the hand and had been experiencing pins and needles in her fingers. He opined that Ms Shears had tendinopathy involving the rotator cuff and that her symptoms were related to either a post-operative frozen shoulder or to complex regional pain syndrome. 7 Mr Evans referred Ms Shears to Dr Blombery, Vascular Physician. He diagnosed that as a result of autonomic disturbance in her left arm she had a component of complex regional pain syndrome type 1. He prescribed Lyrica, performed a phentolamine infusion and arranged for a further ultrasound on 29 December 2009, which still showed a partial thickness tear of the tendon. On 25 March 2010, he reported to Mr Evans that the tears in her left rotator cuff probably had little to do with the symptomatology in her arm which appeared to be in the nature of a pain problem. He suggested that her complaints of tingling in all the fingers of both hands could be due to an injury to the cervical spine. He arranged for an MRI scan of the cervical spine which suggested that Ms Shears had some left C6 nerve root compression. Dr Blombery referred Ms Shears to Mr D Urso, Neurosurgeon, who arranged for a CT guided injection of Marcaine and steroid around the C6 nerve root to which she had little response. Dr Blombery then commenced her on Cymbalta 3 DECISION
medication. 8 Dr Monash also referred Ms Shears to Associate Professor Hall, Rheumatologist, who she first saw on 26 October 2010. He reported that Ms Shears had undergone a phentolamine infusion with no impact on her symptoms but that a hydrodilatation to her left shoulder did improve her range of motion although her complaints of pain continued. He noted that although Ms Shears initial complaints were restricted to the left shoulder and upper arm pre-operatively and then diffusely down the left arm in the post-operative period, they have now become more widespread over both shoulder girdles and more so on the right than the left together with pain down her arms, pain down her spine and pain in the legs. He diagnosed that Ms Shears had developed a significant pain syndrome in association with a very significant depressive reaction which was now the dominant problem. He did not believe that the initial structural injury to the left shoulder was capable of producing the type of widespread symptoms from which she complained. In his report to Ms Shears lawyers on 29 April 2011, he opined that her current problem, while it followed on from surgery, is not the direct result of the work related injury and that the rotator cuff tear had been successfully addressed through surgery. Furthermore, he felt that examination of the left elbow was unremarkable. 9 Dr Schaap, General Practitioner, who has been treating Ms Shears since she moved to the Torquay area, reported on 7 June 2011, that Ms Shears was currently waiting on left ulnar nerve release surgery to be performed by Mr D Urso and a ketamine infusion by Mr Blombery. He noted that she has been diagnosed by others as having regional pain syndrome type 1 and fibromyalgia. He also noted that she is suffering from a depressive illness. 10 Mr P Scott, Consultant Surgeon, assessed Ms Shears on behalf of CGU on 9 April 2009. He reported that Ms Shears was making slow progress following the operation performed by Mr Lyons and opined that she had developed 4 DECISION
symptoms suggestive of an ulna nerve neuropraxia. Dr Karna, Rheumatologist, assessed Ms Shears for CGU on 12 November 2009 and 13 August 2010. He provided a supplementary report dated 14 September 2010 after viewing a video sent to him of Ms Shears activities. Dr Karna initially assessed Ms Shears as having sustained a rotator cuff injury and developing a post-operative frozen shoulder accompanied by some degree of autonomic dysfunction. After reviewing her on 13 August 2010, he noted that she had developed a depressive illness and that her widespread complaints of pain were more likely related to the onset of a fibromyalgia pain syndrome which was the major aspect of her presentation. He expressed the opinion that Ms Shears did not have any structural organic cervical problems and that she required pain management. In his supplementary report dated 14 September 2010, he opined that Ms Shears fibromyalgia pain syndrome related to her underlying psychological state and that there was no pathophysiological link between her original left shoulder adhesive capsulitis and her fibromyalgia on purely structural musculoskeletal grounds. 11 Dr Fish, Occupational Physician, examined Ms Shears on 17 June 2010, for the purposes of providing an opinion on liability and to conduct an impairment assessment in relation to her s98c/e claim. After examining Ms Shears and viewing the ultrasound dated 23 October 2008, MRI scan of the left shoulder, MRI scan of the left arm, nerve conduction studies dated 27 April 2009, ultrasound of the left shoulder dated 29 December 2009 and MRI scan of the cervical spine, he concluded that Ms Shears has had rotator cuff tendonitis and a partial thickness tear of the supraspinatous, treated surgically but there are no objective findings of other abnormalities involving the left upper extremity. In particular, he reported that there was no objective swelling of the left arm, no objective sensory changes in the left arm and no objective findings consistent with complex regional pain syndrome of the left arm. He opined that there was no intrinsic medical condition of the left elbow, no intrinsic medical condition of the nervous system and no objective evidence of 5 DECISION
complex regional pain syndrome. Conclusion 12 The court s role in this proceeding is to determine what injuries were sustained by Ms Shears in the incident on 9 October 2008. The defendant has accepted that she sustained an injury to her left upper limb but contends that it is not for this court to attach a label to the injury or to unravel an omelette. S 104B (2) provides that the Authority must accept or reject liability for each injury included in the s98c/e claim. In cases of dispute, it is for the court to determine what injuries, if any, are compensable, in order for the appropriate impairment assessment to be conducted by either an independent assessor or ultimately by the Medical Panel in cases of disputed impairment. Unless and until the compensable injuries are determined either by acceptance by the Authority or by court determination, a whole person impairment assessment cannot be obtained in accordance with the AMA Guides to the Evaluation of Permanent Impairment 4 th Edition. 13 Once the court makes a determination as to the compensable injuries, the consequences and impairment which flows from the injuries can be assessed. In accordance with s104b (5) a determination of the degree of impairment must take into account all impairments resulting from the injuries entitling the worker to compensation included in the claim for compensation under s98c. The starting point under s98c and s104b is to identify the compensable injury or injuries. In this case, as liability is disputed in relation to some of the claimed injuries, the court must determine what injury or injuries arose out of or in the course of Ms Shears employment on 9 October 2008. Any consequences and impairment resulting from the injuries are for others to assess. 14 In this case, it is clear on the medical evidence that Ms Shears sustained a partial thickness tear of the supraspinatus tendon of the left upper limb. She did not sustain any other separate and distinct injury on that date. The 6 DECISION
consequences which flow from this injury and any impairment assessed under s91 is not for this court to determine. Accordingly, the claimed injuries of; nerve damage to left shoulder and elbow, complex regional pain syndrome and central nervous system are not separate injuries but alleged consequences of the compensable injury to the left upper limb. The defendant was justified in denying liability for these claimed injuries. 7 DECISION