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Written by Peter Carter

November 24, 2021

A long serving customer service attendant whose overuse injury was rejected by WorkCover and the Workers’ Compensation Regulator has got up on appeal by overturning specialists’ opinions to the effect that her debilitating shoulder injury was one “just waiting to happen”.

Saher Nathwani – whose duties included stocking and operating the convenience store section, console service, cleaning and fuel dispensing – had been a loyal employee at the Caltex owned service station on the Gold Coast highway in Surfers Paradise since 2008.

She sustained a right shoulder injury in 2016 from heavy lifting in the convenience store for which she received time off work benefits.

In resuming full duties – after a stint with a reduced workload while her right arm was in a sling – the “automatic” favouring of the injured right shoulder caused her to suffer a left shoulder injury from repetitive lifting of heavyweights above head height.

As her workload also increased, so did the pressure on her left shoulder.

She was though in two minds about whether and how to report her condition to her doctor because of a warning from her supervisor that a claim might have an effect on her long service entitlements.

Suspicious of the delay between the development of symptoms in July 2017 and notifying her GP six months later, WCQ rejected Saher’s February 2019 application for assessment of the degree of her permanent impairment after coming to the conclusion that the injury did not arise from her employment nor was her employment a significant contributing factor.

On review, the Regulator conceded the left shoulder injury but ruled – relying on opinions from orthopedist Peter Dodd and occupational physician Andrew Lingwood to confirm the WCQ decision – she had a degenerative condition and the “employment was merely the setting in which the natural process of the idiopathic disease emerged”.

Dr Dodd’s view was that “just because an individual gets pain at work doesn’t necessarily mean to say the pain was caused by work”.

Armed with an opinion from Malcolm Wallace contrary to those of his colleagues, Saher appealed to the Queensland Industrial Relations Commission for a ruling that the overuse injury arose from her work at the Caltex servo.

At that hearing, it was accepted that she was frequently required her to reach above shoulder height to get at stock and lift items of 15kg to 20kg in weight.

Despite the Regulator’s attack on Saher’s credit and what it argued was ‘self-serving’ evidence, Deputy President John Merell found her account of what she claimed had occurred and what she re-told to the various medical examiners to be “generally consistent”.

“I accept her as a witness of credit,” he declared.

Turning to the expert reports, he judged the opinions of GP Gillian Coleclough – who had treated Saher since 2015 – and Dr Wallace who had detailed knowledge of her duties carried greater weight than those of Drs Dodd and Lingwood

“On the basis of Dr Wallace’s evidence, I am of the view that, on the balance of probabilities, Ms Nathwani’s left shoulder adhesive capsulitis arose out of, or in the course of, her employment,” he decided.

He ordered the Regulator’s decision to be set aside and a decision that Ms Nathwani has an injury within the meaning of the Act substituted in its place.

In a subsequent decision he ordered the Regulator pay her legal costs limited to the day of the hearing.

Nathwani v Workers’ Compensation Regulator [2021] QIRC 325 Merrell DP, 21 September 2021

Nathwani v Workers’ Compensation Regulator (No. 2) [2021] QIRC 351 Merrell DP, 18 October 2021

Categories: Logistics worker injury

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