Bernard Hogan and Military Rehabilitation and Compensation Commission
[2014] AATA 841
•7 November 2014
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/6478
Veterans' Appeals Division )
Re: Bernard Hogan
Applicant
And: Military Rehabilitation and Compensation Commission
RespondentCORRIGENDUM
TRIBUNAL: Dr P McDermott RFD, Senior Member
DATE: 5 February 2015
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The date of the reviewable decision where it appears on page 1 should read “8 November 2013”.
...........................[Sgd]........................................
Senior Member
[2014] AATA 841
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/6478
Re
Bernard Hogan
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
Decision
Tribunal Dr P McDermott RFD, Senior Member
Date 7 November 2014
Place Brisbane The Tribunal varies the reviewable decision of 8 November 2003 to add that the respondent has liability under the Safety Rehabilitation and Compensation Act 1988 (Cth) for the degeneration of the left rotator cuff and left acromioclavicular joint of the applicant, and the application is remitted to the respondent to consider the need for the applicant to have the Surglig sling procedure. The decision to deny extending liability in respect of the left shoulder is affirmed with the qualification (to avoid confusion) that the reference in that decision to the left shoulder is a reference to the glenohumeral joint.
...............................[Sgd].........................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
COMPENSATION – Liability – Royal Australian Navy – RAN – Left shoulder condition – Sublaxation acromioclavicular joint left shoulder – Left rotator cuff – Glenohumeral joint – Ailment or an aggravation contributed to in a material degree by employment – Respondent liable for injury under Safety Rehabilitation and Compensation Act 1988 (Cth) – Decision varied – Matter remitted to Respondent for consideration of medical treatment for Applicant.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 20
Safety Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 14, 16, 62
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
CASES
Australian Telecommunications Corporation v Davis (1991) 14 AAR 99
Re Tiranti-Valenti and Comcare (1996) 45 ALD 478
Repatriation Commission v Warren (2008) 167 FCR 511
SECONDARY MATERIALS
General Practice Direction, President Downes, (26 March 2007)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
7 November 2014
INTRODUCTION
Mr Bernard Hogan (“the applicant”) enlisted in the Royal Australian Navy (“RAN”) on
1 July 1968 and was discharged with the rank of Chief Petty Officer on 3 August 1977. In June 1972 he was injured during a game of service rugby union football that was being played in the course of his employment. There is evidence that the applicant was involved in a “very heavy tackle”. After the tackle, the left arm of the applicant was horizontal to the ground. He was unable to attend his passing out parade due to this injury. The applicant did not receive immediate medical treatment for the injury.[1] In 1977 the Commonwealth accepted liability for a “sublaxation acromioclavicular joint left shoulder” with a date of injury of June 1972.
[1] Exhibit 1, pages 156-157.
On 12 October 2012 the applicant wrote to the respondent seeking extension of liability to include “osteoarthritis and ostioarthrosis [sic] of [the] left shoulder”. By a determination dated 17 April 2013, the respondent determined that liability would not be extended to include left shoulder osteoarthritis. The applicant sought review of that determination. The respondent reviewed the decision, and that reconsideration dated
8 November 2013 affirmed the decision to deny the request of the applicant.
The applicant lodged an application on 5 December 2013 for review of the reconsideration decision by this Tribunal.
LEGISLATION
The reviewable decision of 8 November 2013 contains the statement that the issue to be decided falls for consideration within s 4 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). The reviewable decision contains the definitions of “injury” and “disease” in what is said to be s 4 of the Act. However, the definitions of “injury” and “disease” which are reproduced in the reviewable decision are the definitions provided in s 5A and s 5B of the Act. There is, of course, significance in whether or not the definitions in s 4 (or s 5A and 5B) of the Act have relevance in view of the amendments effected by the Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (“the Amendment Act”) which commenced operation on 13 April 2007.
The Statement of Facts and Contentions of the respondent dated 6 August 2014, whilst not expressly referring to the “relevant legislation”,[2] appears to contend that the application is subject to the legislative regime which is in force after the commencement of the Amendment Act. This is because the respondent contends that an issue is whether the “osteoarthritis of the left shoulder” condition of the applicant is “contributed to, to a significant degree, by his employment with the military”.[3] The definition of “disease” in s 5B of the Act utilises the terminology of “significant degree” which is defined by
s 5B(3) of the Act to mean “a degree that is substantially more than material”. The definition of “disease” in s 4 of the Act, which applies to events prior to 13 April 2007, refers to an ailment or an aggravation that was contributed to in a material degree by the employment or military service as is the case here. For reasons which follow, it is my opinion that it is this latter definition of “disease” in s 4 of the Act which is relevant in the determination of this application.
[2] See General Practice Direction, President Downes, (26 March 2007), cl 2.2 as per ss 20(2) Administrative Appeals Tribunal Act 1975 (Cth).
[3] Paragraph 3.1(b).
MEDICAL EVIDENCE
There are a number of medical reports in evidence in which the football injury of the applicant is outlined. I will refer to reports which are, in my opinion, relevant for the determination of this application.
Dr Day
The applicant had tendered a medical certificate dated 11 April 2014 from Dr Day who is the general practitioner of the applicant.[4] In that certificate Dr Day remarks that the applicant is suffering from “shoulder arthritis left and this relates to a service injury in 1972”.
[4] Exhibit L.
Dr Day was called to give evidence on behalf of the applicant. In giving evidence,
Dr Day stated that he is prepared to revise his previous opinion having regard to recent radiological evidence. Dr Day explained that the latest ultrasound report of
29 August 2014 does not mention arthritis but instead refers to bursitis. Dr Day stated that a previous report of 6 February 2014 referred to osteophytes which would be normally attributable to arthritis.
Dr Day questioned some aspects of the supplementary report of Dr Ness. Dr Day stated that the radiologist has probable findings consistent with degenerative arthritis of the left acromioclavicular joint and he pointed out that Dr Ness concluded that there is no evidence of any form of arthritis affecting the left shoulder joint.[5] Dr Day questioned whether this report was contradictory but, in cross-examination by the respondent, accepted that the reference by Dr Ness to the left shoulder joint is a reference to the glenohumeral joint. Dr Day also referred to the observations of Dr Ness who has, at
page three of his supplementary report, opined that the X-rays show heterotopic bone formation associated with the dislocation of the left acromioclavicular joint.
[5] Exhibit 1, page 120.
Dr Ness
Dr Ness was called by the respondent, and gave telephone evidence. Dr Ness confirmed that he stood by his reports of 24 August 2012 and 16 October 2013. Dr Ness wrote his first report after he assessed the applicant on 21 August 2012. The second report was written after he examined radiological imaging undertaken in September 2013. Dr Ness stated that he had practiced as an orthopaedic surgeon for 30 years and had qualified as a general orthopaedic surgeon. Dr Ness confirmed that his area of expertise was spine and limb conditions.
The respondent asked Dr Ness what was the difference between rotator cuff degeneration and rotator cuff tear. Dr Ness explained that degeneration was a gradual process and is frequently associated with a gradually enlarging tear. Dr Ness confirmed that applicant had left rotator cuff degeneration; this was a process by which the tissue became weak and frail. Dr Ness explained that a tear might be part of the process of degeneration and a person may not ever be aware that they have a tear. He explained that a tear can be seen the imaging in studies of people who have degeneration of rotator cuff. Dr Ness remarked that this process is different from where a person has a healthy rotator cuff which has a significant force and then sustains a tear instantaneous at the time. Dr Ness stated that “he did not have any history where there was a dramatic tear”.
The respondent questioned Dr Ness about the conclusion at page three in his supplementary report dated 16 October 2013 in which he stated: “there is no evidence of any form of degenerative arthritis affecting the left shoulder”. Dr Ness confirmed that his reference to the “left shoulder joint” is a reference to the shoulder joint proper which is the glenohumeral joint. Dr Ness made it clear that he was distinguishing between the glenohumeral joint and the acromioclavicular joint.
The respondent questioned Dr Ness about the condition of the acromioclavicular joint.
Dr Ness explained:
The clavicle was sitting up and not at all against the chromium and the acromioclavicular joint is completely dislocated and with that you would expect some degeneration of the articular cartilage.
Dr Ness confirmed that there was sublaxation of the acromioclavicular joint and with this the articular cartilage (or gristle) gradually wears down and becomes quite rough and thin, and so causes pain and stiffness. Dr Ness explained that in this particular case, one part of the bone in the acromioclavicular joint is not against the other and is dislocated. Dr Ness described that when that happens, the articular cartilage does wear down because it is no longer functional.
The respondent asked Dr Ness whether this process was a constitutional one, he replied “Ah I’m talking... the acromioclavicular joint was clear in my mind the result of an injury. He has an injury in the acromioclavicular joint”. Dr Ness explained that this was not the reason for the limitation of movement loss of function that he observed; this was due to the degeneration in the rotator cuff. Dr Ness reiterated that it was his opinion that the degeneration in the rotator cuff was a constitutional condition.
Dr Ness confirmed that the pain and the loss of function of the applicant were related to rotator cuff disease. Dr Ness, in answer to the Tribunal’s question, confirmed that he came to this conclusion “based on limitation of movement”. Dr Ness explained that there are two possibilities: rotator cuff pathology or the advanced arthritis of the glenohumeral joint (the shoulder joint). As there was no evidence of this arthritis condition in the glenohumeral joint, he came to the conclusion that the applicant’s rotator cuff pathology was due to the rotator cuff condition. In re-examination, Dr Ness confirmed that the impairment of the applicant was caused by the rotator cuff condition as the dislocation of the acromioclavicular joint causes little impairment.
Dr Vecchio
Dr Vecchio has written a comprehensive medical assessment dated 10 May 2007 in which he has assessed the impairment caused by the left shoulder condition.
Dr Brosnan
Dr Brosnan has written a report dated 14 June 2013 in which he outlined the need for a Surglig sling surgical procedure to relieve the applicant of pain from the acromioclavicular joint.
CONSIDERATION
The applicant, who is unrepresented, has made a claim for “osteoarthritis and ostioarthrosis [sic] of my left shoulder”.[6] The “left shoulder” has, in the context of this claim, three possible regions in contention being the acromioclavicular joint, and the rotator cuff as well as the glenohumeral joint (which is popularly referred to as the shoulder joint). These three regions of the shoulder appear in a diagram in the
T-Documents.[7] The respondent has helpfully tendered a diagram of the shoulder joints which more clearly displays these three regions in the shoulder area.[8]
[6] Exhibit 1, T26.
[7] Exhibit 1, page 136.
[8] Exhibit M.
It is evident that the applicant is in some pain. There is evidence from two orthopaedic specialists concerning the pain of the applicant. Dr Brosnan in his report dated 14 June 2013 has reported that “the across chest AC provocation test nearly puts [Mr Hogan] through the roof”. Dr Ness in his report dated 24 August 2012 reports:
Mr Hogan has pain in the left acromioclavicular joint with any movement of the left arm and particularly with raising the left hand to shoulder level. He cannot lie on the left side at night. He has limited movement of the shoulder.
Dr Ness in giving evidence has also mentioned that the applicant is in some pain from his rotator cuff condition.
The case for the respondent was conducted against the background formed by its Statement of Facts and Contentions lodged with the Tribunal and served inter parties prior to the commencement of the hearing in accordance with the General Practice Direction.[9] That document whilst referring to the “osteoarthritis of the left shoulder” does not specify a particular region of the left shoulder. There is quite properly no contention by the respondent that the claim by the applicant, who is a person under obvious disability, is not appropriate to refer to the various conditions in the left shoulder.
[9] Repatriation Commission v Warren (2008) 167 FCR 511 at 532 [92] per Logan J.
Left Shoulder Joint
I will initially consider the left shoulder joint of the applicant. Dr Ness in his supplementary report dated 16 October 2013 has stated that there is no evidence of any form of arthritis affecting the left shoulder joint. At the hearing Dr Day raised the issue of whether this opinion of Dr Ness was consistent with his finding that there was degenerative arthritis of the left acromioclavicular joint. However, Dr Ness confirmed in evidence that his reference to the left shoulder joint is a reference to the glenohumeral joint. I consider that a fair interpretation of his report is that the reference in his report to a left shoulder joint is a reference to the left glenohumeral joint in which there is a mild degree of degenerative change. However, there is no evidence that this is related to the military service of the applicant. I therefore affirm the decision of the respondent to deny the liability for the left shoulder condition. To avoid confusion, I have amended the decision to make it clear that the reference to the left shoulder condition is a reference to the glenohumeral joint.
Rotator Cuff
I will now consider the left rotator cuff condition of the applicant. Dr Ness, who is an orthopaedic surgeon of some seniority, has remarked that the rotator cuff condition of the applicant is the cause of pain and impairment of the applicant. Dr Ness has recognised that the applicant has rotator cuff degeneration disease. Dr Ness in his supplementary report dated 16 October 2013 has opined that the rotator cuff disease is constitutional.
Whilst the commissioning letter to Dr Ness refers to “relevant medical documents” as enclosures – that letter does not expressly mention the report of Dr Vecchio. However, it is apparent from the report of Dr Ness of 24 August 2012 that he had seen Dr Vecchio’s report as he confirmed the assessment made by Dr Vecchio as to the percentage loss of efficient use related to the left acromioclavicular joint injury.[10] Dr Ness did not express any difference with any opinion expressed by Dr Vecchio in his report.
[10] Exhibit 1, page 88.
Dr Vecchio in his report dated 10 May 2007 has remarked:
Mr Hogan dislocated his left acromioclavicular joint during a direct impact injury in the early 1970’s, most probably in June 1972. The condition became permanent at that time. There is likely impingement to the underlying rotator cuff as a consequence of this condition, although no formal radiology has been undertaken or deemed necessary for this assessment.
I am satisfied that there is a causal link between the military service of the applicant and the rotator cuff condition of the applicant. This is because Dr Vecchio had considered that it was likely that the football injury caused an impingement of the rotator cuff.
Dr Ness has explained that the rotator cuff condition of the applicant could be caused by a tear from trauma although in this case he did not have a history of “a dramatic tear”. There is no evidence that the applicant complained about a tear at the time when he was examined by Dr Vecchio.. It was therefore reasonable for Dr Vecchio to consider that radiology was not necessary if there was no complaint by the application of the time of the examination. Dr Ness has explained that a person may not even be aware that they have a tear.
Having regard to the specialist evidence, I find that the rotator cuff condition is an ailment that was contributed to in a material degree by the applicant’s military service. I rely upon the unchallenged opinion of Dr Vecchio that it is likely that there was an impingement to the rotator cuff as a consequence of the dislocation of the left acromioclavicular joint. I therefore consider that it is more probable than not that there was an impingement of the rotator cuff when the dislocation of the left acromioclavicular joint occurred at the service rugby union match in or about June 1972 and that this trauma caused a tear in the rotator cuff. I therefore find that the rotator cuff condition is a “disease” within the meaning of s 4 of the Act which applies to events prior to
13 April 2007.
Left acromioclavicular
The other condition of the applicant is the left acromioclavicular joint. Dr Boys in his report of 3 September 1997 has recognised that the football injury gave “rise to a traumatic separation of the distal clavicle and acromion”. During the hearing of this application, the applicant removed part of his shirt to reveal the state of his left shoulder, and what appeared to be a clavicle displaced upwards. The applicant also indicated that he was in some pain as he sought an adjournment to take some medication.
The respondent has already accepted liability for a “sublaxation acromioclavicular joint left shoulder condition”. However, the delegate in the reviewable decision has denied liability for the “degeneration of the … left acromioclavicular joint.” The delegate in the reasons dated 8 November 2013 has remarked: “I am not satisfied that on the balance of probabilities, that the degeneration of the rotator cuff and acromioclavicular joint can be attributed to your accepted condition as it is constitutional in nature.”
While the delegate has relied upon the report of Dr Ness, that report does not contain any the opinion that the degeneration of the acromioclavicular joint is a constitutional condition. When asked by the respondent whether the process of degeneration in the articular cartilage was constitutional, Dr Ness did not accede with that proposition. Instead he replied that the acromioclavicular joint was the result of an injury.[11] Dr Ness had earlier explained that with the dislocation of the acromioclavicular joint, you would expect some degeneration of the articular cartilage. In his report Dr Ness has also mentioned that there is heterotopic bone formation associated with the dislocation of the left acromioclavicular joint. I therefore find that there is liability for the degeneration of the left acromioclavicular joint as a result of the injury for which liability has already been accepted.
[11] See paragraph [14] of this decision.
I find that the degeneration of the left acromioclavicular region is an ailment that was contributed to in a material degree by the employment and is a “disease” within the meaning of s 4 of the Act as it is an ailment that was contributed to by the employment of the application prior to 13 April 2007.
While the applicant has received compensation for the accepted condition the respondent at the hearing has quite properly recognised that the applicant remains entitled to compensation for medical treatment. Dr Brosnan in his report dated 14 June 2013 has stated that the applicant requires a “[S]urgilig sling procedure around the actual clavicle itself and excision of the acromioclavicular joint”. Dr Brosnan considered that this will “guarantee [Mr Hogan] probably about 85-90% pain relief”.
The reviewable decision of 8 November 2013 records that a decision was made to cancel a request for a report from Dr Brosnan. In my view it was unfortunate that this decision was made. This meant that medical evidence from a treating surgeon was unavailable when the respondent was performing its statutory duty under s 62 of the Act to reconsider a determination. The report of Dr Brosnan would also have been relevant to any decision by the respondent in considering whether to provide compensation for treatment under
s 16 of the Act.
It is evident that one of the reasons which have motivated the applicant to make this application is his need for treatment of a painful condition as during the hearing he exposed his left shoulder to reveal the protruding clavicle. Dr Brosnan has recommended that a Surglig sling procedure would relieve the pain of the applicant. His report was sent to the respondent on 7 August 2013, but there appears to have been no consideration of whether treatment should be provided to the applicant. The report of Dr Brosnan was for some reason not referred to Dr Ness when his further opinion was sought on
22 August 2013.
The report of Dr Brosnan which indicates that there is a need for treatment to relieve the pain of the applicant is not contradicted. While there is long-standing authority that the Tribunal may issue a declaratory determination before medical expenses are incurred,[12]
I consider that the fair and appropriate course of action is to remit this matter to the respondent to consider whether it will provide compensation for medical treatment of the applicant. This is because the issue of treatment of the applicant was not addressed in the reviewable decision even though the reviewable decision refers to the fact that the respondent requested the X-ray report that Dr Brosnan referred: that X-ray report has been duly provided to the respondent. There is no indication in the evidence before me that the Surglig sling procedure is not reasonable or appropriate. I would hope that any decision concerning whether compensation will be provided for the medical treatment of the applicant will be made as soon as possible.
[12] Australian Telecommunications Corporation v Davis (1991) 14 AAR 99; Re Tiranti-Valenti and Comcare (1996) 45 ALD 478.
DECISION
I have decided to vary the reviewable decision of 8 November 2003 to add that the respondent has liability under the Safety Rehabilitation and Compensation Act 1988 (Cth) for the degeneration of the left rotator cuff and left acromioclavicular of the applicant, and the application is remitted to the respondent to consider the need for the applicant to have the Surglig sling procedure. The decision to deny extending liability in respect of the left shoulder is affirmed with the qualification (to avoid confusion) that the reference in the decision to the left shoulder is a reference to the glenohumeral to joint.
I certify that the preceding 35 (thirty - five) paragraphs are a true copy of the reasons for the decision herein of
Dr P McDermott RFD, Senior Member.............................[Sgd]...........................................
Associate
Dated 7 November 2014
Date of hearing 10 September 2014 Applicant In person Solicitors for the Respondent Kate Slack, Sparke Helmore
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