Are subjective reports of symptoms from a worker sufficient to establish that a worker suffered an injury Are subjective reports of symptoms from a worker sufficient to establish that a worker suffered an injury

Are subjective reports of symptoms from a worker sufficient to establish that a worker suffered an injury

14 May 2019 | Workers' Compensation

A cleaner developed symptoms in her left shoulder, wrist and forearm after moving a chair at work. There was no consensus in the medical evidence as to the diagnosis or what injury was sustained, and there was a dispute as to whether the worker suffered an injury.

In Issue

The case considers whether a worker suffers a compensable injury in circumstances where there is a dispute as to whether the worker suffered a clear diagnosed medical condition or physiological change. 

The Background

The worker made a claim for workers' compensation in relation to an alleged injury to her left shoulder, left wrist and left forearm (the injury) said to have occurred when moving a large motorised chair. The worker did not feel pain immediately but once she went home that evening she 'began experiencing severe pain down the whole of the left arm, left hand, left wrist and left shoulder area'.

The insurer accepted liability for the injury, and paid weekly payments and statutory allowances. In September 2017, an Arbitrator determined there was a genuine dispute as to the Respondent's liability to pay compensation and the weekly payments were discontinued. 

The worker sought an order for the payment of compensation from September 2017 and the Arbitrator had to determine whether the worker suffered an injury. Some of the critical medical evidence was as follows:

  • Associate Professor Thompson was not convinced that the worker suffered injury. He specially noted that moving a chair was a daily occurrence for a cleaner and so was unlikely to have caused injury.
  • Dr Cordova was of the opinion that the worker had an obvious left upper limb regional pain syndrome with global rather than radicular symptoms and compatible with marked neural sensitisation. He was convinced that the worker was suffering pain from a traction injury.
  • Dr Majedi believed the worker had generalised non-specific neuropathic pain, left shoulder bursitis and spurs and elements of somatic symptom disorder.
  • Dr Grainger found no organic neurological injury and suggested an orthopaedic opinion.
  • Dr Silbert found that the worker had a mild musculoskeletal injury with left subacromial bursitis with evidence of mild nerve impingement from that.
  • Dr Zandi believed a traction injury to the left upper limb which had resulted in ongoing pain in the left upper limb.
  • Dr Honey expressed the view that the worker had some shoulder bursitis with bursal impingement.
  • Dr Cairns did not believe there was an orthopaedic injury. Dr Cairns speculated that the worker had
    non-specific regional pain dysfunction, diffuse neuropathic pain and probable somatic symptom disorder. Dr Cairns was clearly of the view that the worker's difficulties were of a psychological nature.

The Decision at Arbitration

The Arbitrator dismissed the worker's application. The Arbitrator accepted that the worker genuinely believed she suffered a departure from a state of good health while employed at Brightwater. However, the Arbitrator found there was no consensus between the medical specialists on a diagnosis of the cause of the worker's symptoms which led the Arbitrator to find that she was not satisfied on the balance of probabilities that the worker had suffered an injury.

Relying on the authority of the High Court in Military Rehabilitation and Compensation Commission v May [2016] HCA 19, the Arbitrator decided that subjectively experienced symptoms, without a diagnosed accompanying physiological or psychiatric change, were not sufficient to establish that the worker had suffered an injury arising out of or in the course of her employment.

The Decision on Appeal

The worker appealed the Arbitrator’s decision to the District Court. The Judge upheld the appeal, and determined that the worker suffered an injury. Her Honour noted that the High Court made it clear in May, that proof of the physiological change or disturbance of the normal physiological state of a claimant could, in an appropriate case, be based on the account of a claimant and by appropriate inferences which could be drawn from the sequence of events and medical evidence which might provide objective evidence about the mechanism of injury, that explained the subjectively reported symptoms or provide support for a pathology consistent with those symptoms. In other words, it is not necessary for there to be a certain diagnosis of a medical condition, but there must be something more than an assertion by an employee that they feel unwell.

Her Honour found that Dr Cordova, Dr Zandi and Dr Silbert supported that a traction injury could have caused hypersensitisation of the nerves in and around the worker's left shoulder and pain down through the arm to the hand.

Her Honour was satisfied the worker suffered an injury, being a traction injury to her left shoulder and wrist, in the course of her employment on 10 November 2015.

Implications for you

The decision highlights the low threshold in determining whether there was a compensable injury, with subject reporting of pain symptoms sometimes being sufficient to establish there is an injury.

Jankovic v Brightwater Care Group [2019] WADC 36

Author

Colby Treasure

Colby Treasure

Principal