ANDERSON and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2010] AATA 712

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 712

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2008/4616

VETERANS'       APPEALS      DIVISION		)
Re		CHARLES ANDERSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Dr Kerry Breen, Member

Date17 September 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(sgd) John Handley

Senior Member

VETERANS’ AFFAIRS – Military Rehabilitation and Compensation Commission ‑ Applicant suffered left shoulder dislocation in Royal Australian Navy in 1992 – liability accepted – shoulder vulnerable to further injury – applicant fell onto outstretched left arm when employed elsewhere in 2007 – surgery indicated either dislocation or subluxation of glenohumeral joint with attenuation of pectoralis major tendon and subscapularis tendon – fresh injury suffered – injury arose by more than the give and take of daily activities – decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5A, s 14

Australian Postal Corporation v Nadge, Federal Court, 21 June 1994, 63/94

Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163

F & T Grassi Pty Ltd v Ellendale Estate Pty Ltd & Anor [1985] WAR 294

Re Drummey and Comcare (AAT A96/100, 15 May 1997)

REASONS FOR DECISION

17 September 2010

  Mr John Handley, Senior Member

  Dr Kerry Breen, Member

1.      Mr Anderson, the applicant in these proceedings, is 40 years of age.  He applied for a review of a decision made by the respondent on 25 January 2008.  The decision affirmed a determination made on 21 September 2007 which denied liability for four limited periods of incapacity between June and September 2007. 

2.      The applicant was a member of the Royal Australian Navy (the Navy) between 2 January 1987 and 24 January 1997.  On 18 March 1992 he suffered a left shoulder dislocation.  The applicant made a claim for compensation on 13 October 1999 and liability for it was accepted by the respondent.

3.      Subsequent to the initial injury in 1992, the applicant suffered recurrent dislocations and pain.  On 8 June 2007 he suffered a significant traumatic event when he fell down stairs while employed as a civilian electrician.  This is the incident which is the subject of the current review.  

4.      Ms Serpell and Mr Moulds, respectively, appeared on behalf of the parties in a hearing convened on 16 and 17 June 2010.  Evidence was heard from the applicant and Drs Salmon, Ramage and Elsner.

CHARLES ANDERSON

5.      During his service with the Navy, the applicant was principally engaged as an electrician onboard HMAS Success.  He eventually obtained the rank of leading seaman.

6.      On 18 March 1992 the applicant had completed a 24 hour shift.  He said Success had suffered a serious breakdown.  He intended to return to his sleeping area and in order to do so, he was required to descend a ladder.  He was descending facing away from the steps and because of a combination of the grease and tiredness he slipped and fell in an almost vertical type position (Transcript, p 34).  In order to arrest his fall, he extended his left arm to grab a handrail which stopped his descent but caused a dislocation of his left shoulder.

7.      The applicant said he felt immediate intense pain and recalled that initially his left arm was in an upright position.  He said it was disfigured and there was a bulge around the front of the left shoulder.

8.      With the aid of his right hand, the applicant said he was able to bring his left arm into a cradling type position, similar to the position that an arm would be held if it were in a sling.

9.      The applicant attended a sick bay onboard Success and was in severe pain.  He was taken to HMAS Kuttabul, a naval medical facility, where his shoulder was X‑rayed and he was prescribed painkilling and anti‑inflammatory medication.  He said, the X-ray did not reveal a dislocation and the bulge previously present was not apparent at X-ray.

10.     The applicant returned to work on the following day with his arm in a sling and worked light duties.  He recalled that his left shoulder dislocated (he described that it felt like it popped) on three or four occasions on the first night after the episode when he was attempting to sleep and over a number of successive nights (Transcript, p36).  On those occasions, the applicant said, he was able to return his shoulder out of a dislocated position.

11.     Thereafter, the applicant did not have specific treatment for his left shoulder injury.  He was away from Australia onboard Success for six to eight months of each year and did not lodge any complaint, in the belief that if he did, he would be taken off Success and be placed on a shore based job.  The applicant agreed that in annual medical examinations in 1995 and 1996, he did not disclose any left shoulder complaint, despite him having continuing difficulty, occasional pain and a grating type sensation on a routine basis until his discharge in January 1997.

12.     The applicant then obtained employment with BHP as an electrician until he left that employment in 2004.

13.     In 1999, when tying rubbish onto a domestic trailer and pulling on a rope, the applicant felt an almighty sensation to the shoulder (Transcript, p38).  He said he felt his shoulder pop and suffered immense pain.  He fell to the ground and pushed the left shoulder back into position.  He attended his general practitioner and was prescribed painkilling medication.  He was eventually referred to Mr Andrew Tang, an orthopaedic surgeon, who performed surgery.  The applicant was thereafter treated with physiotherapy, hydrotherapy and medication and returned to work after about four months.  He said initially it felt great (Transcript, p40).

14.     In 2002, the applicant said, he partially fell through a ceiling but was able to arrest his fall by grabbing a roof truss with his left hand.  By 2003 he recalled his shoulder felt loose and he had a cracking sensation in it.  His general practitioner referred him to Mr John Salmon, an upper limb orthopaedic specialist.  Arthroscopic surgery was performed and painkillers and anti‑inflammatory medication was prescribed.

15.     In 2005 the applicant fell forward onto his left arm when working on the roof of his house while repairing a heater.

16.     On 8 June 2007 the applicant was working at the site of Polar Cold Storage in Laverton when he was employed by A E Roberts, commercial and industrial electrical contractors.  At about 1.30 in the afternoon, he was descending some external steel stairs when he slipped and commenced to fall backwards.  He recalled putting his left arm backwards to prevent falling onto his back and backside and again felt an almighty pain in the shoulder (Transcript, p42).  He said the shoulder basically felt like it did a figure 8.  He rang his boss and said he was leaving the work site.  He placed his left arm into a cradle type position within a jacket that he was wearing (to use it as a sling) and drove himself from Laverton to the Casey Hospital.  He recalled he was experiencing intense pain and when he was eventually seen in outpatients, he was given a morphine injection.

17.     The applicant demonstrated the falling manoeuvre to us during the hearing.  He portrayed his arm being in a 45 degree position behind him and it was outstretched.  The entire weight of his body fell onto his outstretched left arm and hand.

18.     Four or five days after presenting at Casey Hospital, the applicant was prescribed Endone medication by his general practitioner and an ultrasound revealed a tear in his pectoral tendon.  He was again referred to Mr Salmon and approximately six weeks later, surgery was again recommended and was undertaken in August 2007.

19.     The applicant was off work for approximately one month.  In December 2007 he jarred his left shoulder when working at home.  In March 2008, during employment at a factory at Hallam, he suffered left shoulder pain when pulling cables with his arms in an overhead position.

20.     The applicant eventually left the employ of A E Roberts and despite being engaged elsewhere as an electrical contractor, he has mainly worked as an estimator.

21.     In cross examination the applicant said he was off work for approximately one month following the surgery in 2007.  He said he could not afford to remain off work because he had exhausted his sick leave entitlements.  He said he continues to consume Panadeine Forte on a daily basis because of continuing pain.  He is engaged in a course of cortisone injections, in combination with attending a gymnasium, to improve muscle tone in his left shoulder.

ANDREW TANG

22.     Mr Tang was the first surgeon to consult with the applicant on referral from his general practitioner.  Mr Tang did not give evidence in these proceedings but a number of reports completed by him were received during a pre-hearing summons procedure.  One report is also within the T‑documents (T6(g)).

23.     In the report of 8 November 1999 (T6(g)), Mr Tang recorded a history taken from the applicant of recurrent dislocation of his left shoulder originating during service whilst onboard HMAS Success.  He reported that the shoulder was spontaneously reduced by the applicant but it subsequently pops out on one or two occasions per year.  On examination the applicant was found to have a grossly unstable shoulder in both anterior and inferior direction.  Mr Tang noted that the applicant was a young gentleman and with his history of dislocations, it was his experience that between 60‑80% of people suffer recurrences.

24.     In a report of 20 December 2009 to the applicant's general practitioner, Mr Tang reported that an MRI scan indicated extensive anterior labral detachment from the 6 o'clock to the 11 o'clock position.  Mr Tang was satisfied that the MRI findings indicated the reason for his recurrent dislocation of the shoulder and he proposed treatment by reattachment of the labral detachment.

25.     In a report of 10 April 2000, addressed to the general practitioner, Mr Tang recorded that 13 days previously, he performed a shoulder reconstruction for recurrent instability.  On 19 June 2000, he reported that the applicant was extremely well following a shoulder stabilisation for multi directional instability three months previously and his range of motion is near full and he has not had further episodes of instability.

26.     On 17 November 2000, Mr Tang reported to the general practitioner that the applicant experiences a tingling sensation in the index and middle fingers of his left hand when working overhead.  He thought that sensation was associated with C7 radiculopathy.  He also noted that the applicant suffered quite severe para cervical muscle spasm.  He concluded that the tingling sensation in the applicant's fingers was more likely to have its origin at the cervical level rather than further down the brachial plexus.

27.     We cannot locate any reports by Mr Tang after 17 November 2000 and there is no material which would indicate that the applicant was reviewed by Mr Tang after that date.

GRANT RAMAGE

28.     Dr Ramage is a consultant occupational physician who prepared a report at the request of the Department of Veterans' Affairs (Exhibit A4).  The report is based on information available on the applicant’s file and other reports made available to Dr Ramage.  He did not examine the applicant.  His report is dated 10 June 2010 and was made available to the applicant's solicitors a few days before the first day of hearing.  Ms Serpell, on behalf of the applicant, called him to give evidence.

29.     Dr Ramage is currently a consultant to a number of public and private corporations.  Whilst acknowledging that he does not hold current appointments to any hospital nor is he qualified as an orthopaedic surgeon, he expressed confidence in his qualification to give an opinion on the documents.

30.     Dr Ramage reported that he was aware that the documents that were provided to him indicated the applicant suffered a dislocation of his left shoulder in 1992.  An MRI in November 1999 demonstrated that he suffered an extensive anterioinferior labral detachment.  It was his opinion, on the balance of probabilities, that that injury was consistent with the dislocation of 1992.

31.     In evidence he said the significance of the disruption of the glenoid labrum was a very common complication of an anterior dislocation of the shoulder (Transcript, p67).  In his experience, younger persons tend to have injury of that type surgically repaired whereas older persons are encouraged to wait to determine whether the shoulder stabilises.

32.     In his report, Dr Ramage recorded that the applicant first had surgery in 2000 and whilst he was aware that the intention was to stabilise the left shoulder, it was not uncommon for restabilisation not to be successful.  He noted that the applicant had reported continuing problems with his left shoulder since the initial dislocation, together with instability.  He also noted that during surgery in 2003, another superior tear was noted which was apparently not present at the surgery in 2000.  He concluded, based on the history of continuing popping sensations between 2000 and 2003 that the applicant had sustained another partial dislocation (a subluxation) of his shoulder which caused the additional tear to his labrum.  Dr Ramage was satisfied that a further tear had occurred having regard to the reports of Mr Salmon following arthroscopy in 2003 (Exhibit A4).

33.     Dr Ramage was also aware that the applicant had suffered a tear to his pectoralis major tendon following the fall on 8 June 2007.  It was his opinion that that injury was not related to the applicant's shoulder instability and does not contribute to any continuing instability in the shoulder.  Had the applicant suffered a pectoralis major tendon injury only, it was his opinion that surgery would not have been undertaken in 2007.  He said the reports of Mr Salmon indicated that surgery to inspect the glenoid labrum was performed in 2007 following an MRI scan, an ultrasound, and upon a history from the applicant of continuing instability.

34.     Dr Ramage was unable to determine from the documents made available to him whether the complaints of pain initially suffered by the applicant were related to the injury to the pectoralis major tendon or to the shoulder joint.  That opinion was advanced specifically because he thought the pectoralis major tendon injury was a distraction from any assessment of the shoulder joint (Exhibit A4, p2). 

35.     It was also his opinion that the initial injury of 1992 was responsible for the applicant's continuing weakness and surgical attempts at stabilising the left shoulder.

36.     In cross examination, Dr Ramage said he would defer to the opinions expressed by Mr Salmon, being the person who had treated the applicant and had observed his shoulder during surgery.

37.     In answer to a question from Dr Breen, Dr Ramage said that he had not previously treated a tear of the pectoralis major tendon, it being an injury that he regarded as being extremely rare.  He was unable to give any opinion about the degree of pain that might be experienced from a tear of the pectoralis major tendon. 

JOHN SALMON

38.     Mr Salmon has practised for 15 years as an upper limb surgeon.  He previously held appointments to public hospitals but now holds an appointment to the Mercy Private Hospital.  He conducts private practice from rooms located at that hospital.

39.     Mr Salmon first treated the applicant in 2003 when he performed surgery.  He also performed surgery in 2007.

40.     Mr Salmon was aware of an opinion provided by Mr Elsner, a consultant orthopaedic surgeon, prepared at the request of the respondent and found within Mr Elsner’s report dated 25 February 2009 (Exhibit R3).  Mr Elsner was of the opinion that there was no longer any significant contribution by the applicant’s employment with the Navy to his continuing left shoulder dysfunction after the fall in June 2007.

41.     Mr Salmon said that the applicant had previously had surgery with respect to his left shoulder dislocation.  Despite attempts at stabilisation of the shoulder, patients were at risk of further instability, no less in the circumstances described to him by the applicant of having fallen and hyper extending his shoulder in June 2007.

42.     Mr Salmon was also aware of opinions expressed by Dr Ramage and he was in general agreement with the conclusions that he had reached, namely, that the applicant suffered a major disruption of his left shoulder joint in 1992 together with tearing of the shoulder capsule and disruption of the glenoid labrum.  Subsequent dislocations of the applicant's left shoulder by reason of continuing instability were generated by the original injury (Transcript, p10).

43.     During surgery in 2003, Mr Salmon noted that the labrum was detached.  He was aware that the applicant had surgery with Mr Tang in 2000.  He noted there had been a repair then of the labrum and that tissue was still attached to the inferior part of the glenohumeral joint but some anterior tissue of that joint had not healed and was repaired.  He concluded that persons in a similar position to the applicant could have sensations of instability without true instability or dislocation (Transcript, p11).  He assumed that the symptoms presented to him by the applicant were of that type.

44.     When he saw the applicant in 2007, Mr Salmon said he had torn his pectoralis major tendon but that was regarded as being a secondary thing.  He noted that the labral tissue was intact but the subscapularis tendon was damaged.  He presumed that the applicant had injured the repair undertaken by Mr Tang in 2000.  He was satisfied that the applicant had suffered a subluxation in June 2007 on the history of the event of the applicant's arm being hyper extended which would be responsible for the damage to the subscapularis tendon and subsequent synovitis and effusion found at surgery.

45.     In cross examination, Mr Salmon said that he understood the applicant falling in June 2007 involved him holding onto a handrail and suffering a wrenching type injury.  He agreed, when he learnt that the applicant had described falling backwards onto his outstretched left arm that an anterior dislocation could have occurred with or without previous surgery.  However, he remained of the opinion that the applicant was at greater risk of dislocating his shoulder because of previous dislocation and surgery.

46.     Mr Salmon said he decided to undertake the arthroscopic surgery in 2007 because an MRI result, although difficult to interpret, suggested instability in the glenohumeral joint with posterior subluxation.  There was some effusion in the glenohumeral joint but the previous anterioinferior labral repair had remained intact.  Mr Salmon did not see the applicant until approximately six weeks after the fall and by reason of the labral repair remaining intact, he concluded that it was more than likely the applicant had suffered a subluxation rather than a dislocation.  Mr Salmon found synovitis in the shoulder (inflammation of the synovium) which he treated surgically.  On balance, Mr Salmon thought that the applicant had re-injured the glenohumeral joint, being the ball and socket which constitutes the shoulder.  There was also a rupture of the pectoralis major tendon which would have been responsible for some swelling.

47.     In response to questions of Mr Moulds and to questions asked by Dr Breen at the conclusion of his cross examination, Mr Salmon said his reference to the pectoralis major tendon injury as being secondary was intended by him to mean of secondary importance or a secondary event.  It was his opinion that the applicant had re-subluxed his shoulder and had injured his pectoralis major tendon.  Both injuries would have been caused by the fall of June 2007 but the pectoralis injury was less clinically relevant.  In his experience, a number of persons have a pectoralis injury but it does not require surgery and their shoulders function normally (Transcript, p18 and 26).

48.     In conclusion Mr Salmon reaffirmed earlier opinions that whilst it was possible that the applicant could have suffered the injuries that he did following the fall in June 2007 without his prior shoulder history, he was at greater risk (because of his prior history), of suffering injury in a traumatic incident with consequent instability.  He disagreed with a proposition put to him that a person with prior shoulder history similar to the applicant suffers a greater impact by a new incident and it is more likely to be regarded as a fresh injury.

KEITH ELSNER

49.     Mr Elsner practised as an orthopaedic surgeon between 1976 and 2003 and treated patients until 30 September 2004.  He has subsequently worked as a consultant, assessing persons under medical panels established in Victoria.  He completed two reports at the request of the respondent dated 25 February 2009 and 18 November 2009, received, respectively as Exhibits R3 and R4.  He assessed the applicant on 18 February 2009.  A number of documents and medical reports were provided to him.

50.     Specifically, he was referred to the reports of Dr Salmon dated 13 August 2007 (T31(a)) and 21 August 2008 (Exhibit A2).  He agreed that Mr Salmon did not report in either of those two reports that he felt the major problem was attenuation of the subscapularis tendon when he treated the applicant in 2007 (Transcript, p80).

51.     Mr Elsner agreed that the subscapularis tendon is divided and repaired during an open stabilisation procedure and a patient was at risk of further injury.  However, he disputed an opinion expressed by Mr Salmon in the report of 15 December 2009 that it was probable that the severity of symptoms after the fall in 2007 was related to the injury of 1992 and subsequent surgery.

52.     Mr Elsner said, that having regard to the medical records and notes that had been provided to him; and on the description of the 2007 incident given to him by the applicant, that the presence of effusion in the shoulder joint and inflammation (synovitis) could be explained entirely by reason of the 2007 fall.  Additionally, he was not prepared to agree that the applicant did suffer a pectoralis major tendon tear.  He thought the operation notes completed by Mr Salmon were ambiguous.

53.     Mr Elsner did not interpret the notes of Mr Salmon as pointing to instability in the shoulder joint during surgery in August 2007.  He said there was no evidence of any labral tear and the only evidence that he acknowledged of instability was the history given to him by the applicant that at the time of the fall his shoulder popped out.  Nonetheless, he was satisfied that there was no definite indication that there was, in fact, any instability when tested in August (Transcript, p 82).

54.     In cross examination, Mr Elsner agreed that the applicant suffered an anterior shoulder dislocation in 1992 which caused a major disruption of his left shoulder joint and a tearing of his shoulder capsule.  He thought it was probable, but not definite that there was also a disruption of the glenoid labrum.  He thought the applicant did suffer recurrent instability in the left shoulder after the episode in 1992.

55.     Mr Elsner also agreed that a subluxation of the glenohumeral joint would cause damage to the subscapularis tendon but he emphasised that there was no evidence pointing to subluxation or indeed dislocation.  He said the only evidence that he could find was the history given to him by the applicant that his shoulder had popped out.  He agreed that dislocation could have been present at the fall but not apparent at surgery several weeks later.  He also agreed that a person, who had previous shoulder instability and subsequent surgery, was at greater risk of sustaining further damage in the event of significant trauma.

56.     Mr Elsner agreed that he did not complete a full clinical examination of the applicant because when abducting and rotating the applicant's shoulder there was positive apprehension on the part of the applicant and he did not proceed to conduct any further stability tests (Transcript, p84-86).  He thought it prudent not to expose the applicant to additional pain.  He said he was prepared to defer to the findings of Mr Salmon and he agreed that he had not had the benefit of observing the applicant's shoulder at surgery.  It followed that Mr Salmon was also at a greater advantage in the opinions that he expressed because he treated the applicant and performed the surgery.  However, Mr Elsner said that in the absence of knowing the extent of the force which impacted upon the applicant's shoulder in the fall of June 2007, and having regard to the comments of Mr Salmon that instability was not found during the surgery of August 2007, he was unable to explain why Mr Salmon was of the opinion that the injury of 2007 had a relationship with the previous episodes of dislocation and subsequent surgery.

57.     Mr Elsner opined that an original injury rather than subsequent corrective surgery was more likely to predispose a person to further joint injury, but he did concede that a combination of an original injury and subsequent surgery could cause a person's shoulder to be vulnerable to further injury and dislocation.  However, on the history that he had and by reference to the documents provided to him, he was not satisfied that the applicant suffered a dislocation or subluxation of his shoulder subsequent to the surgery in 2000.  He said he did obtain a history from the applicant following the 2007 fall that the shoulder popped out.  When he was asked to check his notes of whether any greater or more precise description was given to him by the applicant, he said that his notes recorded the applicant indicating to him that his shoulder slipped out of the socket temporarily (Transcript, p87).  He acknowledged that those words would imply that there had been movement of the ball within the shoulder socket which would not necessarily indicate a dislocation but could indicate a subluxation.

58.     In answer to some questions from Dr Breen, Mr Elsner said, he has regard to the history given to him by a patient but in comprehending the mechanics of injury and the site of pain, in his experience, a more reliable basis would be a history of a shoulder being repositioned by force.

59.     When he was informed that the applicant had said in evidence that he suffered intense pain initially and the ball of the shoulder did a figure 8 movement, Mr Elsner said that history sounds convincing but he would have expected, both on examination and by arthroscopy, that there would have been greater or more significant findings, namely, instability under anaesthetic, a significant capsular tear or a large labral tear (Transcript, p90).

60.     Mr Elsner was not aware that the applicant had suffered any instability or dislocation or subluxation after the surgery of 2000.  When he was informed that Mr Salmon had given evidence of effusion in the glenohumeral joint being indicative of a significant shoulder injury with a probable subluxation following the 2007 fall, Mr Elsner said that he would not take a strongly opposed view to his interpretation (Transcript, p 91).

61.     His attention was also drawn to comments made by Mr Salmon in a report of 13 August 2007 (T31(a)) namely, Given his history that the shoulder felt loose and locked since the injury I felt that his major problem was related to the glenohumeral joint (T31(a), p 139).  Mr Elsner said that he did not obtain a history of that type.  Additionally, he did not obtain a history from the applicant that would suggest to him that the glenohumeral joint had been re-injured with synovitis being present nor a middle glenohumeral ligament tear being the findings made by Mr Salmon at surgery in 2007.  He agreed that those conclusions, being drawn by the treating surgeon within a matter of weeks of the 2007 fall, were significant, compared to the position in which he was placed having been required to examine the applicant some two years later.

CONCLUSION AND REASONS FOR DECISION

62. Section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee resulting in incapacity for work.

63. Injury is defined at s 5A of the SRC Act as either a disease, or a physical or mental injury arising out of, or in the course of the employee's employment; or the aggravation of a physical or mental injury suffered by an employee that arose out of, or in the course of that employment.

64.     In the present review, the applicant claims liability against the respondent for incapacity payments following an episode which occurred on 8 June 2007.  The applicant initially suffered an injury in 1992 when in the employ of the Navy.  He presented for surgery in 2000 with Mr Tang with a history of recurring dislocations of his left shoulder and having later suffered a number of other episodes affecting his left shoulder.  His present claim for incapacity payments was on the basis that the 1992 left shoulder injury caused him to be vulnerable to further dislocation, either because of the injury itself, or as a consequence of the surgery in 2000.

65.     The hearing was almost exclusively confined to the taking of medical evidence and attempting to comprehend what actually happened to the applicant's left shoulder in the fall of 8 June 2007.  The clinical picture was complex as there was evidence of an injury to the left shoulder as well as an injury to the left pectoralis major muscle and/or its tendon.  Mr Salmon did not see the applicant until some 45 days after the June injury and had to base his opinion on the account of the applicant, an ultrasound examination made on the day of the injury, an MRI examination made 47 days after the fall, his clinical examination of the applicant and his finding at surgery, shortly thereafter.

66.     Mr Salmon was the applicant's treating surgeon and five reports were prepared by him.  The first report is dated 13 August 2007 (T31(a)).  A report of 27 September 2007 is Exhibit A6.  A report of 21 August 2008 is Exhibit A2.  A report of 15 December 2009 is Exhibit A3.  A report of 10 June 2010 is Exhibit A1.

67.     On 13 August 2007 (T31(a)), Mr Salmon reported that an ultrasound suggested a tear of the pectoralis major muscle 7 cms from its insertion but it was not clinically evident.  In the report of 15 December 2009 (Exhibit A3), he reported that it was evident that the applicant had sustained a rupture of the pectoralis major muscle and in the report at T31(a), he recorded that the pectoralis major tendon was intact, but was attenuated.  The MRI report of Dr Peter Smith (T31(b)) described a tear of the inferior portion of pectoralis major tendon with retraction medially.

68.     We are satisfied that one of the injuries the applicant suffered as a result of the fall of 8 June 2007 was a tear to the left pectoralis major muscle tendon.  We accept the evidence of Mr Salmon and Dr Ramage that this injury was of secondary importance (when contrasted with the second injury, viz to the left shoulder joint) and would not on its own have required surgical intervention or exploration.

69.     In his report dated 21 August 2008 (Exhibit A2) Mr Salmon recorded that the applicant suffered an insult to and instability within his glenohumeral joint.  In the report of 15 December 2009 (Exhibit A3), he recorded that there was injury within the glenohumeral joint with synovitis and joint effusion.  He also recorded in that report that there was a glenohumeral joint injury but without labral tear.  That latter conclusion was supported also within A3 where he found that there was no evidence of any labral tear.  In the report of T31(a) he found that the labral tendon was intact.

70.     We are therefore satisfied that the applicant did suffer an injury to his left shoulder (glenohumeral) joint as a result of the fall on 8 June 2007.

71.     In his report of 15 December 2009 (Exhibit A3, p3), Mr Salmon reported that at arthroscopy he felt the major problem was an attenuation of the subscapularis tendon.  He also commented that the subscapularis tendon is regularly divided and re-repaired during open stabilization surgery… He also recorded that the applicant suffered a subluxation injury involving his rotator cuff.

72.     In his report of 13 August 2007 (T31(a)), being 12 days after the arthroscopy following the fall of June 2007, he recorded that the major problem of the applicant was affecting his glenohumeral joint.

73.     In his report marked Exhibit A3, although dated 15 December 2009, Mr Salmon recorded that at arthroscopy (on 1 August 2007) the major problem affecting the applicant was an attenuation of the subscapularis tendon.

74.     On balance, having regard to the above reports, the reports of Mr Tang, Mr Elsner and Dr Ramage and the evidence heard from Mr Salmon, Dr Ramage and Mr Elsner, we are satisfied and find as a fact that by reason of the applicant falling on 8 June 2007, he suffered injury to his glenohumeral joint, either as a dislocation or as a subluxation.  We are also satisfied and find as a fact that the applicant suffered a tear of pectoralis major muscle tendon and an attenuation of his subscapularis tendon (a stretching of the shoulder ligaments).  We adopt the opinions expressed by Mr Salmon being the treating surgeon who clinically examined and observed the applicant arthroscopically in 2007.  We also note his speciality as an upper limb surgeon.

75. For reasons which will follow and by reason of the above findings, we are not satisfied that the respondent is liable under s 14 of the SRC Act.

76.     Our attention was drawn to an unreported decision of the Federal Court of Australia in Australian Postal Corporation v Nadge, Federal Court, 21 June 1994, 63/94 where at [29], Lee J recorded the following:

This was not a case where the evidence before the Tribunal permitted only one conclusion by a reasoned process of fact finding. It was for the Tribunal to determine whether the activities were such as to be likely to have occasioned a fresh injury or whether they constituted no more than the give and take of daily activities which, if they occasioned the re-emergence of symptoms in the damaged spine, could be said to be a continuation or recurrence of the original injury. If that continuation of symptoms, albeit of greater severity, brought incapacity for employment, the incapacity could be said to result from the original injury. All those issues were plainly matters of fact for the Tribunal to determine.

77.     His Honour also relied on a decision of the Supreme Court of Western Australia in F & T Grassi Pty Ltd v Ellendale Estate Pty Ltd & Anor [1985] WAR 294 where the majority of the Full Court relied on a previous decision of the Workers' Compensation Board of Western Australia (Canale v Commissioner of Main Roads (1982) 1 WCR (WA) 163). 

78.     The decisions in F &T Grassi and Canale should be approached with some caution because the legislation applicable in 1982 and 1985 in Western Australia provided liability for compensation by reason of injury by accident.  Nonetheless, the analysis in those decisions and particularly the decision of Lee J in Nadge, indicates that a finding needs to be made as to whether a worker who has previously suffered an injury has indeed suffered another (fresh) injury or whether an activity or an event undertaken by an applicant in the course of daily activities caused symptoms to re-emerge and which could, as a fact, be found to be no more than a continuation or a recurrence of the original injury.

79.     In Nadge the worker suffered increased symptoms of back pain after swimming with his children.  The employer had previously accepted liability for a back injury.  On review, the Tribunal held that the back pain was a direct result of the original injury.  Lee J dismissed the appeal.  The conclusions of His Honour in Nadge were followed by the Tribunal in Re Drummey and Comcare (AAT A96/100, 15 May 1997).  In that decision the worker (coincidentally) suffered left shoulder and back injuries and complained of increased symptoms after bending and lifting the catcher of his lawnmower at home.  The Tribunal found the activities constituted no more than normal, daily type activities.  The Tribunal was satisfied that the employee did not suffer a fresh injury.

80.     We acknowledge that the applicant did suffer a very significant injury in 1992 for which the respondent ultimately accepted liability.  He has thereafter been vulnerable to instability and further injury within his shoulder.  He has been at risk of further dislocation and/or subluxation.

81.     We acknowledge the opinion expressed by Mr Salmon that the injury suffered by the applicant in the fall in 2007 could have occurred in the absence of prior history.  We think on balance that the applicant was in fact at greater risk.

82.     However, we are satisfied that the present application may be distinguished from the circumstances which gave rise to the decision in both Nadge and Drummey.

83.     The applicant fell onto his outstretched left arm whilst descending a stairwell.  The force must have been considerable and it did cause him considerable pain.  He positioned his left arm inside his jacket and drove immediately to Casey Hospital where he was given a morphine injection.  Mr Salmon who had previously treated the applicant, intervened arthroscopically some weeks later.  The episode on 8 June 2007 occurred when the applicant was employed by a private corporation at a point in time well after he had ceased employment with the Navy.

84.     We are not satisfied that the fall in June 2007 caused the applicant to suffer a continuation or a recurrence of the original injury of 1992, or a continuation of the symptoms that arose in the 1992 event and the resulting surgery in 2000.

85.     We are satisfied that the applicant did suffer fresh injuries.  We have made findings earlier of the injuries then suffered (paragraph 74).  If not already apparent, we are satisfied that the injuries suffered in 2007 occurred beyond what might be described as the give and take of daily activities (refer Nadge at [29]).

86. Having regard to s 5A(1) of the SRC Act, we are satisfied that the injuries suffered by the applicant on 8 June 2007 arose out of, or in the course of his employment on that day with A E Roberts. It was not employment within the ambit of the SRC Act. The force of the applicant falling onto his outstretched arm was responsible for those injuries. The incapacity for which liability is sought in these proceedings did not result from the original injury (refer Nadge).

87.     In these circumstances, we are not satisfied that the respondent is liable for the consequences of the fall of 8 June 2007.  The decision under review will be affirmed.

I certify that the eighty-seven [87] preceding paragraphs are a true copy of the reasons for the decision herein of  

Mr John Handley, Senior Member and
Dr Kerry Breen, Member

Signed:          Olympia Sarrinikolaou

Legal Assistant

Date/s of Hearing  16-17 June 2010
Date of Decision  17 September 2010
Counsel for the Applicant            Ms C. Serpell
Solicitor for the Applicant             KCI Lawyers
Counsel for the Respondent        Mr A. Moulds
Solicitor for the Respondent        Thomsons Lawyers