Broken Causal Link: Fleeting Comment Is Not Enough
Tomanovic v Woolworths Group Limited [2021] NSWPIC 443
The Applicant was employed by the Respondent as a Store Person. She suffered an undisputed injury to her right shoulder on 14 December 2013 whilst lifting a heavy box during the course of her employment.
The Applicant alleged that she sustained a consequential left shoulder condition as a result of favouring the use of her left shoulder whilst her right shoulder was undergoing treatment, surgery and rehabilitation. She made a claim for lump sum compensation in respect of the right and left shoulder conditions.
The Respondent disputed the Applicant’s entitlement to lump sum compensation on the basis that she had not suffered a consequential injury to her left shoulder and in that in the absence of that condition, that she did not meet the threshold to succeed in a claim as required by Section 66(1) of the Workers Compensation Act 1987.
The Applicant commenced proceedings seeking lump sum compensation in respect of the right and left shoulder conditions. The matter was listed for a Conciliation/Arbitration hearing on 20 October 2021 before Member Philip Young.
Determination / Reasons
Member Young confirmed that the issue that required determination was whether the Applicant suffered a consequential condition to her left shoulder. Member Young noted that the matter was complicated by the fact that the Applicant was involved in a non-work-related motor vehicle accident on 2 September 2017 in which she sustained injuries to her neck, back and both shoulders. The Applicant submitted that the motor vehicle accident made her left shoulder worse, but was not the source of the original pain or symptoms.
The Respondent relied upon the decision in Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452, in that an unbroken causal chain was necessary to establish that the left shoulder was consequential to the accepted right shoulder injury.
Member Young noted that the Claimant consulted her GP, Dr Gounder on no less than 37 occasions between 14 December 2013 and 26 February 2015 and there was no complaint recorded concerning any left shoulder pain, symptoms or disability. The first complaint of pain to the left shoulder was not recorded until 26 February 2015. Between 26 February 2015 and 3 September 2017, the Applicant made no further complaints concerning her left shoulder.
Member Young reviewed the remaining treating evidence, including reports from physiotherapists and occupational therapists, which did not include any history of left shoulder problems prior to the motor vehicle accident. He considered that, given the Applicant returned to normal work from March 2016 to September 2017, this added weight to the proposition that the Applicant was not suffering any consequential condition concerning her left shoulder during this time.
Overall, Member Young considered that the Applicant had not satisfied the onus of establishing that the left shoulder condition was consequential to the accepted right shoulder condition on the basis that only one isolated complaint of left shoulder pain was made between the time of the workplace incident in 2013 and the motor vehicle accident in 2017.
Implications
This matter serves to highlight that an isolated complaint of pain or symptoms may not be enough to establish an unbroken causal chain and therefore establish that an injury or condition is consequential to an accepted workplace injury.
Should you have any queries concerning a particular workers compensation matter, please contact our team on either (02) 4929 9333 or (02) 8297 5900.
