Allen and Telstra Corporation
[2004] AATA 685
•30 June 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 685
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos Q2002/870, Q2003/306, Q2003/308
GENERAL ADMINISTRATIVE DIVISION ) Re JENNIFER ALLEN Applicant
And
TELSTRA CORPORATION
Respondent
DECISION
Tribunal Mr O Rinaudo, Member Date30 June 2004
PlaceBrisbane
Decision The Tribunal sets aside the decisions under review and in substitution therefor decides that:
(a) the respondent is liable to pay compensation to the applicant, pursuant to sections 19 and 21 of the Safety, Rehabilitation and Compensation Act 1988, in relation to her right shoulder injury;
(b) the applicant is entitled to compensation for permanent impairment pursuant to sections 24 and 27 of the Act; and
(c) the applicant is suffering from a 10% whole person impairment.
...................(Sgd)..................
O Rinaudo
Member
CATCHWORDS
WORKERS’ COMPENSATION – benefits and entitlements – shoulder injury – some evidence of degenerative changes - injury at work has made a material contribution to the applicant’s condition – entitled to compensation – injury at work has resulted in permanent impairment – applicant’s voluntary redundancy does not affect her rights to compensation
Safety Rehabilitation and Compensation Act 1988 s 4, 19, 21, 24, 27
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Re Stephenson and Telstra Corporation Limited [2001] AATA 343
Re West and Comcare (AAT 9320, 23 February 1994)
Re Ganley and Comcare [2003] AATA 14Re Prica and Comcare (AAT 11050, 28 June 1996)
REASONS FOR DECISION
30 June 2004 Mr O Rinaudo, Member Decision Under Review
1.The applicant seeks review of decisions made by the respondent on:
(a)17 September 2002, affirming a determination of the 1 July 2002 that the respondent is not liable to pay compensation pursuant to section 19 and/or section 21 of the Safety Rehabilitation and Compensation Act 1988 (the Act) to the applicant in respect of right shoulder injury;
(b)28 March 2003, affirming a determination of 13 March 2003 that the respondent was no longer liable to pay compensation in respect of “right neck injury and shoulder rotor cuff injury” on and from 13 March 2003; and
(c)28 March 2003, affirming a determination of 28 February 2003 that the respondent is not liable to pay compensation in respect of permanent impairment for right arm condition.
History
2. The applicant was born on 13 July 1943. The applicant commenced work with the respondent in 1981 and was employed as a communications technician from 1985. The applicant ceased employment having accepted a voluntary redundancy on 10 August 2001.
3. On 26 October 2000, the applicant claimed that she experienced right shoulder pain whilst at work and was diagnosed with a rotor cuff injury to the right shoulder. The applicant lodged a claim for compensation on 30 October 2000 in respect of “right shoulder complaint”. Liability was accepted by determination dated 10 November 2000.
4. On 15 October 2001, the respondent ceased liability for “right shoulder injury – rotor cuff”. On 16 May 2002, liability was again accepted.
5. On 25 June 2002, the applicant made a claim for incapacity payments for the period 18 September 2001 to 22 July 2002. On 1 July 2002, the respondent rejected the applicant’s claim on the basis that the applicant had accepted a voluntary redundancy. This decision was affirmed on 17 September 2002.
6. The applicant lodged a claim for permanent impairment on 10 December 2002. This application was rejected on 28 February 2003 and affirmed on 28 March 2003.
7. On 13 March 2003 liability was ceased for “right neck injury and rotor cuff injury”. This decision was affirmed on 26 March 2003.
Issues
8.The issues for the Tribunal therefore are:
(a)whether the applicant is entitled to ongoing compensation on and from 1 July 2002 in respect of her right shoulder injury pursuant to section 19 and/or section 21 of the Act;
(b)whether the applicant is precluded from compensation payments because of the provisions of section 19 of the Act; and
(c)whether the applicant is entitled to compensation for permanent impairment of the right shoulder pursuant to section 24 and 27 of the Act.
Legislative Framework
9. The legislation relevant to this application is contained in the Safety Rehabilitation and Compensation Act 1988. Section 4 is relevant in that it contains a definition of “injury” and “suitable employment”:
“‘injury’ means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
…
‘suitable employment’, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b)in any other case—any employment (including self-employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).”
10.The other relevant sections are:
“19 Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
…
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self-employment)—the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment—the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition—the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment—the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee—whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g)any other matter that Comcare considers relevant
…
21Compensation for injuries resulting in incapacity where employee is in receipt of a lump sum benefit
(1) This section applies to an employee who, being incapacitated for work as a result of an injury retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a lump sum benefit under a superannuation scheme.
…
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)7 Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
…
27 Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.”
Hearing
11. The Tribunal had before it documentary evidence as set out below:
·Exhibit 1 documents lodged in Q2002/870 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
·Exhibit 2 documents lodged in Q2003/306 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
·Exhibit 3 documents lodged in Q2003/308 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
·Exhibit 4 Report of Dr M Robinson dated 3 June 2002
·Exhibit 5 Report of Dr M Robinson dated 25 May 2003
·Exhibit 6 Report of Dr P Wignall dated 17 June 2002
·Exhibit 7 Letter dated 15 June 2001 from applicant to Glen McGarry
·Exhibit 8 Statement of Rodney Fox
·Exhibit 9 Statement of applicant dated 21 August 2003
·Exhibit 10 Statement of applicant dated 27 May 2003
·Exhibit 11 Alternate Duties Program (previously marked “MFI A”)
12. At the hearing, the applicant gave evidence and confirmed the matters set out in her statements at Exhibit 9 and Exhibit 10. Evidence was also given by Dr M Robinson, Mr Fox, Dr T Blue, Ms Allen, Dr Ho, Dr Martin, Mr Kruger and Mr McGarry.
Evidence Before the Tribunal
13. Ms Allen confirmed that she ceased employment with Telstra on 17 August 2001. She said that by then she had completed 31 years with Telstra.
14. Ms Allen said that on 26 October 2000 she was wiring jumper runners at the Mooloolaba Exchange. She said that twenty minutes was allowed to do this job. She said that the work would be carried out anywhere from on the ground to eight feet in the air. She said that she was reaching directly in front of her whilst doing this job. She said that you had to pull a wire through a frame. She said that her arms were directly out in front of her at shoulder height.
15. Ms Allen said that she worked overtime every second weekend and two or three nights per week. She said that on the night in question her arm went “snap” and her arm fell to her side. She could not move her arm. She said that her supervisor said that she had popped her shoulder and was taken straight to hospital. She said that she had been a jumper runner for fifteen years.
16. She had time off work. Upon her return to work she did whatever jobs she was told to do if she could do them. If she could not do them she did not do the jobs. She said that mainly she was answering phones. She said she also drove linesmen to jobs a couple of days per week. She said there were five girls in the group. On occasions she went out and showed some others how to do jumper running work as she was one of the only ones who knew what they were doing. She said that she was on light duties until she finished up.
17. Ms Allen said that Mr Col Kruger and Mr Glen McGarry came out to see her and offered her a redundancy. They told her to write a letter and told her what to write in it. She said that was her last day of work. She said she did not take advice about the redundancy.
18. Ms Allen said she did not want to take the redundancy – she said she wanted to keep working.
19. She said that Telstra had told her she would get her shoulder fixed up. She said they told her that notwithstanding she was ceasing work. She said otherwise she would have stayed at work until Telstra had fixed her shoulder up.
20. She said that after the compensation was stopped she went to Glen McGarry and told him that she wanted her job back because they had stopped her compensation.
21. She said that she was in a lot of pain and was taking pain killers. She said that there were a lot of things she could do that she now cannot do now, including housework. She can drive but only for an hour at most. She said she cannot lift anything heavy. She said she could not do the wiring job any more. She said her right shoulder is worse than her left. She said the left shoulder had been dislocated twenty-one years ago.
22. She also said she had a fall at work in July 2000 and landed on her back and jarred her shoulders.
23. She said she was taking mercindol forte pain killing tablets every day. She was having physio and ultrasound until March 2001 and has had remedial massage once per week since 2001.
24. She said she has shoulder pain with the right one being worse. She said that if she did not take the pain killers by 2.00pm she would be crying.
25. Ms Allen said that she was not computer literate but did know how to use computers as taught to her by Telstra. She said that she went half way through sub-junior. She therefore left school in Grade 9. She said after leaving school she worked in a garage for a while in 1958 and 1959 and then started at Telstra in 1961.
26. She said that if wiring needed to be done above her head then her arms would be above her head.
27. Ms Allen confirmed she was 60 years of age.
28. In cross-examination Ms Allen said that on the day in question she was up a ladder with her arms at chest level and was cutting the wire. She said there was no great weight. However, there was pushing and pulling all day. She said that she had already been working eight hours that day. She said that the job entailed significant force, pushing “real hard” to cut the wire. She said this would happen at least thirty times per day. She said every day she would be working above shoulder height ten to twenty times per day. Some days more, some days less. Ms Allen confirmed she was right hand dominant.
29. She said that, after 26 October, she experienced pain in the left shoulder which got worse. She acknowledged she was not doing the same job at this time. She said she had physio on the right and left shoulders. She that, by March 2001, the symptoms were the same in both the right and left shoulders.
30. She said that the right is now worse than the left which still causes her a little bit of a problem.
31. She said that her redundancy started on 15 June 2001. She acknowledged that the redundancy was financially rewarding. However, she wanted to keep working. She said she was not looking at the money side of it. Ms Allen said that on 26 October 2000 she had one week off work. She said her shoulder was not better. However, she said Telstra wanted her back at work. She said that when she returned to work she was given a list of duties. However, she said that her duties had nothing to do with administration. She said she was training others to do the job that she was doing. She said that this was once or twice some weeks.
32. Ms Allen acknowledged that she could come and go particularly to doctors’ appointments. She said that sometimes she needed to go home, take pain killers and lie down. She said this happened between November 2000 to August 2001.
33. Ms Allen confirmed she would be training up to two hours per day as a maximum and then cleaning up to half a day. She said that most of the time she could deal with enquiries on the phone. She was doing this a couple of days per week. She said she was also driving the other girls out to pay accounts. She said this would entail a half hour drive around Mooloolaba.
34. Ms Allen was asked about previous injuries to her shoulders as reported by Dr Blue (T14 folio 51) and Dr Robinson (T45, folio 102). Ms Allen noted that she had had a fall in July 2000 and a fall in 1996 as reported by Dr Ho (T34, folio 82). Ms Allen said that she did not pursue a redundancy. She said that either Mr Kruger or Mr McGarry had phoned her. She referred to the comments in the letter of her solicitors at T56 folio 128/129. Ms Allen acknowledged that the letter at Exhibit 7 was the letter she wrote seeking redundancy. She said that she was told that “plenty of people had gone out on a compensation claim and you should too”.
35. Ms Allen confirmed that as stated in her statement at Exhibit 9 that she had no job classification. She said that she was told that she could do anything she wanted to do.
36. In cross-examination Ms Allen was asked if she had ever complained to Mr Kruger or Mr McGarry about her work. She said she had not. Ms Allen was asked if she had asked for a redundancy. She replied she had not. Ms Allen denied that she had been told to get financial advice about the redundancy. She also denied that she had said that the redundancy was best for her. Ms Allen confirmed that she had been told that Telstra was trying to get rid of anyone on a compensation claim. She also denied that she had got financial or legal advice. She confirmed that she had said that she did not want to leave Telstra. She confirmed that on 20 July 2001 she signed a consent to her redundancy and that she had finished with Telstra on 17 August 2001. She confirmed that she did not withdraw her request for redundancy because she had been told that “they were going to fix me up”. Ms Allen acknowledged that she was never asked to do anything that she was not physically able to do. However, she denied that it was explained to her that the redundancy would affect her compensation. She also denied that at her send-off she had told Mr McGarry that she was happy to be going. Ms Allen confirmed that after her claim was ceased she had asked Glen for her job back. He said that GIO would review any compensation claim. She confirmed that he had said this to her. She confirmed that she did not seek advice either financial or legal and said that she did not see why she needed to.
37. In re-examination, Ms Allen said that she had not been writing the procedure manuals. She said that she had only spent a day or so on this. She said that her right hand side was painful. She said that nothing happened to her left hand side in the falls in 1996 or 2000. She said she had no problems after these. She said that she saw the doctor in 2000 and had acupuncture and was back to work.
38. Dr Ho gave evidence and confirmed that he had provided reports at T10 dated 16 December 2000, T20 dated 14 May 2001 and T34 dated 24 August 2001. He said that he had recommended treatment of physiotherapy and surgery.
39. In cross-examination, he confirmed the statements made in his second report that “the common mechanism for such a injury is lifting or pulling an exceptionally heavy weight or a fall”. Dr Ho noted the reports about Ms Allen’s previous injuries as reported in his report of 24 August 2001.
40. Dr Ho confirmed that in the incident on 26 October 2000, Ms Allen’s injuries had been caused through a pulling mechanism. He acknowledged that age had something to do with it. He said that it was not the pushing that had caused the injuries – pushing used a difference group of muscles. He said that it was pulling and lifting.
41. Dr Martin gave evidence and confirmed that he had given two reports dated 20 January 2003 which were at T14 and T15 of the T documents for file Q2003/306. Dr Martin confirmed his comments at page 4 of his report (T14, folio 36) that:
“Ms Allen suffers from an advanced degenerative process affecting each supraspinatus tendon and extending further into the rotator cuff at least on the right side.”
and further
“In my opinion, the condition of Miss Allen’s shoulders has developed independent of her employment and is the consequence of an inherent predisposition towards somewhat premature degeneration.”
42. He said that on examination Ms Allen had a full range of active and passive movement.
43. In cross-examination, Dr Martin stated that he had noticed wasting caused by disuse of Ms Allen’s arms. He conceded that it was possible the event had caused the symptoms.
44. Mr Colin Kruger gave evidence and confirmed his statement at T63 and noted the statement of Mr McGarry at T64. He confirmed he was Ms Allen’s team leader. Mr Kruger said he knew Ms Allen as part of a team at Kunda Park Depot as a communication technician. He confirmed his comments at page 145 of T63 that:
“I informed Jenny that she could answer phone calls, do deliveries to staff in the field or drive others staff to sites, and help out where necessary if she so desired. She did do some filing for a while and as that was not suitable to her, she ceased these filing duties.”
45. He confirmed that Ms Allen always told him what she was doing. He also confirmed she had no job classification. He said that the important thing was getting her back to work. He stated the only task which Ms Allen complained about was filing.
46. Mr Kruger said that when the issue of the redundancy came up he put it to the team. He said it was early May when Ms Allen came to him and said “I am thinking redundancy”. Mr Kruger said that Ms Allen came to him on 15 June 2001 as reported at page 145 of T63 as follows:
“On 15th June 2001 Jenny informed me that she would like to accept a redundancy, so I informed her that she would need to write a letter stating that she would accept a redundancy. I set up a meeting for the 21st June 2001 with Glen McGarry and myself to discuss her decision. Glen McGarry advised her of her open compensation claim and advised her that GIO reviews all open compensation claims whether the claimant was still employed or not, and that she would still have a right to appeal if the claim was refused in the future.”
47. He confirmed that Ms Allen said that redundancy was the best option for her. Mr Kruger confirmed his evidence in cross-examination, particularly, that the phone call from Ms Allen did take place and that he did tell her that GIO would review the claim for compensation as a result of the redundancy.
48. Mr Glen McGarry gave evidence and confirmed his statement at T64, folio 147, of the T documents.
49. Dr Mark Robinson gave evidence and confirmed that he saw the applicant on 11 March 2002 and had provided three reports dated 24 March 2002, 3 June 2002 and 25 May 2003. Dr Robinson said that he was 90% engaged in clinical treatment.
50. In respect of his report dated 24 March 2002 he confirmed that on page 5 of that report he had said “this is a relatively low energy injury”.
51. Dr Robinson drew an analogy of the applicant’s injury with a piece of denim. He said originally the denim was very strong but over time it got weak. He said that as denim gets older it becomes thread bare and holes develop and it becomes worn through. He said this was similar to the injury suffered by Ms Allen. At page 7 of his report of 24 March 2002, Dr Robinson confirmed that Ms Allen is below average height at 152cm. He said that as reported to him Ms Allen had spent a significant part of her working life with her arms in a bad position, above shoulder height. He said this put her in the “at risk” group. Dr Robinson acknowledged that there was some inconsistency between his findings and other doctors but said this may be because Ms Allen might become more relaxed during his examinations. He said that he regarded her true disability as 10% whole person impairment. He said that he relied on the x-rays for this.
52. In cross-examination he noted inconsistencies referred to at page 7 of his report and also referred to by Dr Blue in his report at T14. Dr Robinson noted that Ms Allen improved in her range of movement over two tests which were less than ten minutes apart. This was reported page 3 of his report.
53. Dr Robinson said that the history he was given that Ms Allen had worked for fifteen years led him to the conclusion that her injuries were not naturally occurring degeneration. He confirmed that he had been told that Ms Allen worked with her hands in front of her.
54. Mr Rodney Lyall Fox gave evidence and confirmed that he had previously been employed by Telstra as a Field Supervisor. He also confirmed that Glen McGarry was his supervisor and further confirmed the statements set out in his statement of 6 October 2003 at Exhibit 8.
55. In cross-examination Mr Fox confirmed that he had been offered a redundancy and had left Telstra on 8 June 2001. He said he wanted to get out to start up a small business. He said he could not remember what Ms Allen had told him or what they had discussed.
56. He said that they were not in the same office and that he could not really say from day to day what Ms Allen did. He confirmed that he had not been privy to conversations between Ms Allen, Mr Kruger and Mr McGarry. However, in re-examination Mr Fox said that he was in Ms Allen’s work room once or twice a day, sometimes up to four hours. He said he always spoke to her.
57. Dr Blue gave evidence and confirmed that he had been an orthopaedic surgeon for thirty-nine years. He confirmed that he had provided reports at T14 dated 10 January 2001, T23 dated 13 June 2001 and at T36 dated 11 September 2001.
58. Dr Blue confirmed that his diagnosis of Ms Allen was that she had degeneration of long standing in her shoulders. He confirmed that there had certainly been aggravation of this degeneration. He said that, as described to him, Ms Allen was pushing a wire into a clamping device and using minor force.
59. Dr Blue said that x-rays showed degeneration. He said that Dr Robinson had paid greater attention to her working history. Dr Blue, in cross-examination, confirmed that he had made certain assumptions about Ms Allen’s working activities over the last fifteen years. He said that he was working on the basis that she was working about 20% of the time with her hands above her head. He confirmed that Dr Martin had noted muscle wasting from non-use of Ms Allen’s arms. Dr Blue acknowledged that Dr Martin had seen Ms Allen a couple of years after her injuries. However, said that even so the amount of muscle wasting was significantly more than would otherwise be expected.
60. Dr Blue noted that he was too old to operate and he was now a consultant. He regarded himself as a general orthopod.
61. In re-examination, Dr Blue confirmed that degeneration could occur over a ten to fifteen year time period.
Submissions
62. Counsel for the applicant provided a detailed written submission. She noted the following issues for consideration.
·Whether the applicant continued to suffer from a compensable injury within the terms of section 4 of the Act, on or after 1 July 2002, in respect of her right shoulder arising out of and in the course of her employment with the respondent;
·Whether the applicant was capable of earning in suitable employment;
·Whether after becoming incapacitated for work, the applicant received an offer of suitable employment and, having accepted that offer, failed to engage, or continue to engage in that employment;
·If so, whether, pursuant to section 19(4)(g) of the Act, there were any other matters which were relevant; and
·Whether the applicant is entitled to compensation for permanent impairment of the right shoulder pursuant to section 24 and 27 of the Act.
63. The Tribunal was urged to accept the medical opinions of both Dr Ho and Dr Robinson over Dr Blue and Dr Martin. It was submitted that Dr Ho had formed the opinion that the pulling undertaken by the applicant was the mode of injury.
64. Dr Robinson said:
“With these issues pertaining particularly to Mrs Allen, she is a lady of below average height, her duties as a technician with overhead installation have placed significant strains on her rotator cuff for the 15 years of installation work and further aggravations were made by her stature. I would conclude that her duties have been a major significant factor contributing to the degeneration of her rotator cuff. I strongly disagree with Dr Blue’s premise that her current age realed degeneration is independent of her work relate duties.
Mrs Allen has bilateral rotator cuff ‘holes’. I believe the hole on the right side pre-dated the injury of 26 October 2001. She was doing a lot of overtime as work was very busy at the time. A relatively minor (low energy) injury occurred to her shoulder. This is probably an extension of a pre-existing degenerative and work related hole in the rotator cuff.”
Dr Robinson concluded:
“The diagnosis for Mrs Allen is an acute exacerbation of chronic degenerative but work related condition in her right shoulder.
The diagnosis is consistent with the stated cause. A combination of her height, 15 years of work and a single (low energy) incident has resulted in ongoing pain in her right shoulder. There is an ongoing relationship between her current condition and her work related duties.”
65. Dr Robinson had also assessed the applicant’s level of permanent impairment in his report of 25 May 2003 at 10% pursuant to Table 9.1 of the Guide to Permanent Impairment. This was based on an assessment that the applicant had a loss of less than half the normal range of movement of the shoulder.
66. Counsel referred to the cases of Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 and Re Stephenson and Telstra Corporation Limited [2001] AATA 343 to support the submission that:
“It is not necessary, therefore, for the tribunal to find that the event of 26 October 2000, or the Applicant’s employment, was the sole cause of the Applicant’s injury, or that ‘but for’ her employment she would not have suffered the injury, in order for the Applicant to succeed. It suffices that the evidence has established ‘on the probabilities’ that such a contribution has occurred, and that being the case, the size of the contribution does not matter.”
67. The applicant’s counsel after relying on the medical evidence of particularly Drs Ho and Robertson summarised her contention in the following way:
“For the reasons mentioned herein, it is submitted that the Applicant suffered an injury to her right shoulder at work on 26 October 2000 when she was wiring an exchange. The injury aggravated rotator cuff degeneration, rendering her largely asymptomatic condition symptomatic. The aggravation is continuing and she has suffered incapacity for work in terms of section 14 of the Act giving rise to an entitlement to compensation.”
68. Counsel submitted that the applicant was not able to “earn in suitable employment”. The applicant’s age, education history and lack of relevant employment experience or knowledge rendered her unemployable on the open market.
69. Counsel relied on the authorities of Re Stephenson and Telstra Corporation Limited [2001] AATA 343 and Re West and Comcare (AAT 9320, 23 February 1994) to support the proposition that the applicant is not estopped from making a claim notwithstanding she had accepted a redundancy.
70. The applicant’s counsel further relied on the authority of Re Ganley and Comcare [2003] AATA 14 in which the Tribunal considered it quite reasonable for an employee to canvass his options with respect to voluntary redundancy and the implications thereof, “Knowledge so gained does not provide any ground on which to base a claim of disingenuity in the absence of other evidence, as in the present case” (paragraph 104).
71. In conclusion, the applicant’s counsel noted that the applicant was entitled to continuing incapacity payments. The acceptance by her of a voluntary redundancy should not affect this determination. It was further submitted that Ms Allen has a permanent impairment of 10% in accordance with Table 9.1 of the Guide.
72. Counsel for the respondent submitted that the Tribunal would not find the applicant a credible witness particularly about the circumstances of her redundancy. The applicant was never told that she would be “fixed up”. Counsel submitted that the Tribunal would accept the evidence of Mr Kruger and Mr McGarry who had no reason not to tell the truth.
73. Counsel submitted that the Tribunal would be persuaded by the evidence of Drs Martin and Blue. Both had a wealth of information in their possession. Dr Blue particularly had had regard to both of the applicant’s shoulders.
74. In respect of section 19(4) of the Act, the respondent’s counsel noted that the applicant could have stayed on at work. Rehabilitation was ongoing. He submitted that the applicant had not been “left in the corner”. The respondent considered that the applicant had “something to offer” and was trying to get her back to where she had been. Counsel said that “Telstra had bent over backwards to help this woman”.
75. Counsel referred to the authority of Re Prica and Comcare (AAT 11050, 28 June 1996) in respect to the issue of the applicant’s ability to continue in employment and in particular paragraph 27 which says:
“But, the Tribunal should not have regard to the factor stated in s 19(4)( c) if, in terms of s 19 (4)(f), the Applicant’s failure to continue to engage in the work in the proof coin area was “reasonable in all the circumstances”. On the evidence renewed below, we are satisfied that the Applicant was capable of continuing that work in January 1992, and that there was no other circumstance – such as unwarranted pressure from supervisors – which would have made it objectively reasonable (Re Shanahan and Australian Postal Corporation (1995) 36 ALD 613) for the applicant to fail to continue to engage in the work he was capable of doing.”
76. Counsel for the respondent submitted that Messrs McGarry and Kruger had properly informed the applicant about a redundancy, had made no representations and she had been provided with a cooling-off period.
77. Counsel submitted that the Tribunal would not accept the evidence of Dr Robinson about the applicant’s permanent impairment rating as he had found that the applicant’s second range of movement was almost normal. He submitted that the applicant does not get close to an impairment rating. Dr Martin found that Ms Allen had no limited range of movement.
78. Counsel submitted that in the circumstances the applicant’s application must fail.
Discussion
79. The first issue for the Tribunal to determine in this case is whether the applicant is suffering from a compensable injury within the terms of section 4 of the Act. That section says:
“injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment…”
80. The respondent accepted the applicant’s claim on for “right shoulder injury to rotator cuff” on 10 December 2000. Dr Blue stated, in his report of 10 January 2001, that:
“…the underlying cause of both the shoulder problems is certainly natural recurring degeneration in each rotator cuff. Superimposed upon this naturally occurring degeneration the various work activities possibly have contributed to the problems but they remain a very minor component to her cause of shoulder problems.”
81. Dr Blue noted in his report dated 11 September 2001 that:
“I would therefore believe that rotator cuff tears are more common in patients over the age of 40 and the most common cause of this problem is degeneration with age in the rotator cuff significantly predisposing to such tears.”
82. Dr Martin noted, in his report dated 20 January 2003, that in his opinion Ms Allen’s shoulder problems had developed independently of her employment and as a result of her “inherent predisposition towards somewhat premature degeneration”.
83. The reports of Dr Ho and Dr Robertson as mentioned above support the applicant’s contention that her injury was at least contributed to in a material way by her employment.
84. It should be remembered that the applicant gave evidence that she had been employed by the respondent for some 30 years with the last fifteen years performing the job of a technician which required her to have her arms out in front of her, often above shoulder height, reaching forward and pulling with her right arm. The Tribunal accepts this evidence.
85. The evidence is clear that the applicant is suffering from a rotator cuff tear on the right side. The only issue is whether her employment contributed to this.
86. In this regard, the Tribunal has had regard to he decision of Semlitch, where the High Court said:
“In all cases the question is whether there has been a ‘contribution’. Consistently with what was said by Windeyer J, ‘contribution’ does not require that the contributing factor be causa sine qua non; ‘but for’ test is not appropriate nor is the causa causans or ‘real effective cause’ or ‘prominate cause’ formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must in truth be part of the cause. If they are not, then, they do not ‘contribute’.
…The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.”
87. The Tribunal prefers the evidence of Dr Robinson. He says in his conclusion to his report dated 24 March 2002:
“The diagnosis for Mrs Allen is an acute exacerbation of a chronic degenerative but work related condition in her right shoulder.
The diagnosis is consistent with the stated cause. A combination of her height, 15 years of work and a single (low energy) incident has resulted in ongoing pain in her right shoulder
There is an ongoing relationship between her current condition and her work related duties.”
88. Accordingly, the Tribunal is satisfied that the applicant’s injury is work related.
89. The next issue for the Tribunal is whether the applicant is entitled to incapacity payments for this condition, pursuant to section 19 of the Act. That section says:
“(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount under the formula:
NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
(3) Subject to this Part, Comcare is liable to pay to the employee, in respect of the injury, for each week during which the employee is incapacitated, other than a week referred to in subsection (2), compensation:
(a)where the employee is not employed during that week - of an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment; …
(4) In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment - the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare] opinion, reasonable in all the circumstances; and
(g)any other matter that [the Tribunal] considers relevant.”
90. The respondent’s argument in this case is that the applicant failed to accept an offer of suitable employment by the respondent and accepted a voluntary redundancy effective 10 August 2001. Accordingly, the respondent is not liable in respect of incapacity payments for the period 18 September 2001 to 22 July 2002 under sections 19(4)(c) and 21 of the Act.
91. Section 21 of the Act says:
“(1) This section applies to an employee who, being incapacitated for work as a result of an injury retires voluntarily, or is compulsorily retired, from his or her employment at any time after the commencement of this section and, as a result of the retirement, receives a lump sum benefit under a superannuation scheme.
(2) Comcare is liable to pay compensation to the employee, in respect of the injury, in accordance with this section for each week after the date of the retirement during which the employee is incapacitated.
(3) The amount of compensation is an amount calculated under the formula:
AC - (SA + SC)
529
where:
AC is the amount of compensation that would have been payable to the employee for a week if:
(a) section 19, other than subsection 19 (6), had applied to the employee; and
(b) in the case of an employee who was not a member of the Defence Force immediately before retirement-the week were a week referred to in subsection 19 (3);
SA is the superannuation amount; and
SC is the amount of superannuation contributions that would have been required to be paid by the employee in that week if he or she were still contributing to the superannuation scheme.”
92. In section 19(4)(c) the term suitable employment is used. That term is defined as:
“suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a) in the case of an employee who, on the day on which he or she was injured was a permanent employee of the Commonwealth or a licensed corporation and who did not subsequently terminate that employment-employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i) the employee's age, experience, training, language and other skills;
(ii) the employee's suitability for rehabilitation or vocational retraining;
(iii) where employment is available in a place that would require the employee to change his or her place of residence-whether it is reasonable to expect the employee to change his or her place of residence; and
(iv) any other relevant matter; and
(b)in any other case-any employment (including self-employment), having regard to the matters specified in subparagraphs (a) (i),(ii), (iii) and (iv);”
93. The applicant says that the “light duties” she was required to perform were not “suitable duties” as that phrase is used in the Act. In this regard the applicant relied on the decision of Stephenson where it was found that photocopying and such duties were not considered to be suitable employment.
94. The Tribunal is satisfied that, post injury, the applicant was asked to do light duties which were not suitable. Whilst the Tribunal acknowledges that the respondent was doing its best to try to rehabilitate the applicant in the circumstances, Ms Allen was given unsuitable duties and, the lax way she was supervised, meant the applicant was at liberty to canvas her options (see Re Ganley and Comcare).
95. In the Tribunal’s view it matters little what the applicant was told about the redundancy. It is more an issue of what she thought would be the effect of the redundancy. In this case, while there is some evidence that the effect of the redundancy was explained to her, the Tribunal is satisfied that he applicant was under the belief that her compensation rights were not affected by her redundancy. The Tribunal accepts the evidence of the applicant that if she had known the effect of the redundancy she would never have accepted it.
96. Accordingly, the Tribunal is satisfied that the applicant is not caught by the provisions of section 19 of the Act and is entitled to ongoing incapacity payments.
97. The final issue for the Tribunal is whether the applicant has a permanent impairment.
98. In this regard the Tribunal is satisfied that Dr Roberson has properly assessed the applicant’s whole person impairment as 10% as set out in his report of 25 May 2003. He says:
“Mrs Allen has a painful restriction in the range of motion of her shoulder. She has lost less than half the normal range of movement of her shoulder. Under the Comcare guidelines and referring to table 9.1 for upper extremity I would conclude Mrs Allen has a 10% level of impairment relating to whole person as a result of the injury to her right shoulder.”
99. In the circumstances, the Tribunal finds that the applicant’s claim for acceptance of her injury to her “right neck injury and shoulder rotator cuff” injury is work related and she is entitled to incapacity payments as assessed for this injury.
100. In addition the Tribunal finds that the applicant has a 10% whole person impairment for this injury and is entitled to lump sum compensation for this in accordance with sections 25 and 27 of the Act, to be calculated by the respondent.
101. Accordingly the applicant’s claims are successful.
I certify that the 101 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member
Signed: Sarah Oliver
AssociateDates of Hearing 11 and 12 November 2003
Date of Decision 30 June 2004
Counsel for the Applicant Ms Heyworth-Smith
Solicitor for the Applicant Maurice Blackburn Cashman
Counsel for the Respondent Mr Clark
Solicitor for the Respondent Sparke Helmore
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