Blandthorn and Military Rehabilitation and Compensation Commission

[2006] AATA 626

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 626

ADMINISTRATIVE APPEALS TRIBUNAL          № V2005/259
  № V2005/561

GENERAL ADMINISTRATIVE   DIVISION

Re:           Brian blandthorn

Applicant

And:military REHABILITATION and compensation commission

Respondent

DECISION

Tribunal:       Mr Egon Fice, Member

Date:12 July 2006

Place:Melbourne

Decision:The Tribunal sets aside the reviewable decision made on 12 March 2004, in respect of both matters, and remits the matter to the Military Rehabilitation and Compensation Commission for reconsideration.

(sgd) Egon Fice

Member

CATCHWORDS – liability for compensation and rehabilitation for shoulder injuries – injury or disease – connection between disease and employment – contributed to in a material degree

Safety, Rehabilitation and Compensation Act 1988

Compensation (Commonwealth Government Employees) Act 1971

Treloar v Australian Telecommunications Commission [1990] 26 FCR 316

Comcare v Canute [2005] 148 FCR 232

Suters v Australia Postal Corporation (1992) 28 ALD 320

Riddle v Telstra Corporation [2006] 149 FCR 348

REASONS FOR DECISION

12 July 2006  Mr Egon Fice, Member

1.      Mr Brian Blandthorn enlisted in the Royal Australian Navy (Navy) on 4 February 1991.  He injured both shoulders while playing rugby for the Navy and also in the course of physical training (PT) in 1993 and 1994.  Mr Blandthorn also injured his back and suffered significant chondral damage in both knees which resulted in his retirement from the Navy in 1998 on grounds of invalidity.  In 2003 Mr Blandthorn made a claim to the Military Rehabilitation and Compensation Commission (MRCC) for rehabilitation and compensation for injury to his shoulders. He said he suffered from pain and restriction of movement in both shoulders.  His claim was rejected on the bases that his right shoulder condition was not related to his service injury and his left shoulder disclosed no clinical abnormality or any impairment.

2.      Mr Blandthorn requested that the MRCC reconsider its determinations in respect of both shoulders.  The MRCC revoked its initial determinations and found that Mr Blandthorn had suffered both shoulder injuries out of or in the course of his military service.  However, the MRCC also determined that it was not liable to pay compensation to Mr Blandthorn for the injuries sustained to his shoulders as he was no longer suffering from his service related injuries on and from 31 July 2003.

3. Mr Blandthorn has brought two applications for review of the MRCC decision, one in respect of each shoulder condition. It is convenient to deal with both applications concurrently. Mr Blandthorn’s applications only seek to have the question of liability determined under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).  The principal issue before this Tribunal is whether the shoulder conditions that Mr Blandthorn complains about are injuries arising out of or in the course of his employment with the Navy: or, if they are properly described as a disease, whether his ailment was contributed to in a material degree by his employment with the Navy.

RELEVANT FACTS

4.      The relevant facts are not in dispute.

5.      The recorded injuries to Mr Blandthorn’s right shoulder are as follows:

(a)an undated daily injury record which states that Mr Blandthorn suffered an injury to his right shoulder while “packing down in the scrum” at the Naval Base, Cerberus;

(b)a medical attendance and treatment report dated 7 July 1993 which states that Mr Blandthorn suffered from a painful right shoulder after he fell on it in the course of PT, and it resulted in a mild strain of the right rotator cuff;

(c)an outpatient clinical record which states that Mr Blandthorn fell on his right arm one week earlier, at the Portsea Army base, resulting in a strain to the right bicep; and

(d)a daily injury record made on 1 July 1994 which states that on 30 June 1994 Mr Blandthorn suffered an injury to his right shoulder during rugby training (service sport) and was tender over the right acromio‑clavic joint.

6.      Mr Blandthorn suffered the following injuries to his left shoulder:

(a)an injury from a rugby tackle resulting in his shoulder being pushed back and leaving him with pain in the shoulder and his arm in a sling; and

(b)an injury sustained in a tackle at the Cerberus rugby pitch on 26 May 1994.

7.      Mr Blandthorn also suffered serious injuries to his lower back and both knees as a result of playing rugby for the Navy.  On 22 September 1998 Mr Blandthorn applied for invalidity retirement from the Navy.  He listed post‑viral syndrome and bi‑lateral chondromalacia patellae as the reasons for his application but he made no mention of any problems with either of his shoulders.  He was discharged on 13 November 1998. 

8.      Between 13 November 1998 and 17 June 2003, when he lodged a claim for compensation, Mr Blandthorn had numerous medical examinations regarding his lower back and significant knee problems.  However, not one of the medical reports made following the examinations mentioned that Mr Blandthorn made any complaint about his shoulders.  Nor did he mention shoulder pain when he applied for a disability support pension in July 2001. 

9.      There is no documentary evidence of Mr Blandthorn’s shoulder injuries until he made a claim for compensation in respect of those injuries on 17 June 2003.  Mr Blandthorn was examined by Dr P. Mutton, a consultant occupational physician, on 24 July 2003.  Dr Mutton stated in his report dated 31 July 2003 that Mr Blandthorn told him that after his discharge from the Navy he did some part‑time work delivering newspapers for ten hours per week.  He also delivered garden supplies for approximately ten hours per week.  Mr Blandthorn told Dr Mutton that he had ceased all work activity by about 2000.  Dr Mutton noted that, upon examination, Mr Blandthorn had a moderate reduction in range of movement of the right shoulder and that there was pain at the extremes of movement only.  He reported that he did not detect any abnormality in the acromioclavicular joints.  Examination of the left shoulder revealed no abnormality of any significance and no tenderness.  Mr Blandthorn had a normal range of movement in that shoulder.  Dr Mutton reported that it was likely Mr Blandthorn suffered from mild adhesive capsulitis or subacromial bursitis in the right shoulder but there was no abnormality in the left shoulder.

10.     Dr P.M. Grinwald, a consultant physician, examined Mr Blandthorn on 18 December 2003.  Dr Grinwald reported that Mr Blandthorn had sustained injuries to both shoulders, more marked to the right shoulder, consistent with injuries to the rotator cuff and acromioclavicular joint.  In his opinion, there may be progressive slow deterioration in the shoulder injuries particularly the right acromioclavicular joint.

11.     Dr L. Rose, a consultant in legal medicine, examined Mr Blandthorn on 23 March 2004, 4 May 2004 and 20 May 2004.  Although Mr Blandthorn did not mention his shoulder problems to Dr Rose on the first two consultations, he did mention his shoulder problems on the third consultation.  Mr Rose asked Mr Blandthorn to produce any report he might have regarding his shoulder injuries and he gave these to Dr Rose on 8 July 2004 when he was again examined.  Dr Rose noted that there was a decrease in Mr Blandthorn’s range of movement in the right shoulder joint and tenderness over the anterior aspect.  He believed Mr Blandthorn may have been suffering from a possible chronic rotator cuff injury and that there might possibly have been a tear.  He recommended an ultrasound examination of both shoulders. 

12.     Mr Blandthorn had an ultrasound examination of his right shoulder on 2 August 2004 and of his left shoulder on 3 August 2004.  The ultrasound examination of the right shoulder disclosed a tiny calcific focus in the superior posterior aspect of the supraspinatus tendon with minimal thickening of the bursa superficial to the area of calcification.  No rotator cuff tear was demonstrated and the remainder of the rotator cuff appeared normal. There was some impingement on the coracoacromial ligament but this did not occur until 120 degrees of shoulder abduction.  The report concluded that Mr Blandthorn’s right shoulder disclosed minor calcific tendonitis with minor bursal thickening and impingement.  The left shoulder ultrasound disclosed that there was no full or partial thickness tear in either the supraspinatus or subscapularis tendons.  There was no fluid in the biceps sheath or subacromial bursa.  No impingement was detected.  There was also no limitation to external or internal rotation to suggest any capsulitis.  The report concluded that there was no full or partial thickness rotator cuff tear and that the heterogeneous appearance in the supraspinatus and subscapularis might represent low grade calcific change only.

13.     Dr Grinwald examined Mr Blandthorn again on 24 November 2005.  He recorded that Mr Blandthorn had lost less than half the normal range of motion in both shoulders.  Dr J. Guymer also examined Mr Blandthorn on 31 January 2006.  Dr Guymer merely referred to the ultrasound examinations disclosing minor tendonitis on the right and minimal changes on the left shoulder. 

INJURY OR DISEASE

14.     The MRCC accepts that Mr Blandthorn suffered an injury to his right shoulder on 7 July 1993, which arose out of or in the course of his military service.  The MRCC also accepts that he suffered an injury to his left shoulder on 26 May 1994, arising out of or in the course of his military service.  However, it contends that Mr Blandthorn did not suffer and no longer suffers from a service related injury in respect of his right or left shoulder as from 31 July 2003.  The MRCC submitted that the condition or ailment described by Mr Blandthorn is now a degenerative process as described by Dr Mutton.  If that were the case, the MRCC submitted that Mr Blandthorn was required to demonstrate that his ongoing condition was contributed to in a material degree by his employment with the Navy. 

15.     An employee, as defined in s 5 of the SRC Act, is entitled to compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment (s 14).  Under s 5 of the SRC Act injury is defined to include a disease suffered by an employee as well as 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.  The circumstances in which an injury may arise out of or in the course of employment are set out in s 6 and s 6A of the SRC Act.  The Full Court of the Federal Court of Australia in Comcare v Canute [2005] 148 FCR 232, at page 248, explained that an injury suffered by an employee does not always necessitate a causal connection between the injury and the employment.  However, an injury which is a disease does require a causal connection between the employment and the contraction of the disease.  This is because a disease is defined in s 4 of the SRC Act in the following way:

disease means:

(a)       any ailment suffered by an employee; or

(b)        the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.

. . .

16.     Ailment is defined in s 4 of the SRC Act as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).  Ailment is generally defined in the Shorter Oxford English Dictionary as a disorder or illness. 

17.     The medical evidence indicates that Mr Blandthorn now suffers from calcific tendonitis and possibly subacromial bursitis in the right shoulder.  His left shoulder only appears to have evidence of low grade calcific change.  Bursitis is defined in Dorland’s Illustrated Medical Dictionary (27^th Edition) as inflammation of a bursa, occasionally accompanied by a calcific deposit in the underlying supra spinatis tendon.  The 18^th Edition of the Merck Manual of Diagnosis and Therapy describes bursitis as an acute or chronic inflammation of the bursa.  It also refers to tendonitis as a condition which is degenerative and is associated with inflammation of a tendon or inflammation of the tendon sheath lining. 

18.     The cause of these conditions, according to Dr Mutton, is open to dispute.  Dr Mutton said that calcific tendonitis is often a sign of chronic injury, occurring over time and not acutely.  The conditions can be seen in persons with and without injury.  I am satisfied that the current condition of Mr Blandthorn’s shoulders is properly described as a degenerative disease rather than an injury.  Therefore, for Mr Blandthorn’s ailment to fall within the definition of disease for the purposes of s 4 of the SRC Act, it must be an ailment or an aggravation that was contributed to in a material degree by his employment with the Navy.  If that causation can be established, then Mr Blandthorn’s disease can be defined as an injury for the purposes of the SRC Act; which in turn may impose a liability on the MRCC for payment of compensation if the injury results in incapacity for work, an impairment, or in respect of the cost of medical treatment obtained in relation to the injury (s 16).  Liability under s 16 for medical treatment arises whether the injury results in incapacity for work or impairment (s 16(2)).

CAUSAL CONNECTION

19.     The Full Court of the Federal Court of Australia in Treloar v Australian Telecommunications Commission [1990] 26 FCR 316, although dealing with the Compensation (Commonwealth Government Employees) Act 1971, discussed the meaning and relevance of materiality of contributions to applications for compensation under that Act.  The Full Court, said at page 323:

The use of the word “material” in conjunction with the words “contributing factor” in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. 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.

20.     While the adjective material does not appear in the 1971 Act, as Ryan J said in Suters v Australia Postal Corporation (1992) 28 ALD 320 at page 331:

. . . Although it is true that Treloar's case was expressly limited to a consideration of the 1971 Act, in which the word “material” did not appear, the case none the less contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it.  . . .

21.     The Full Court in Canute said, at page 248:

In so far as his Honour [Ryan J] was of the view that Full Court’s comments in Treloar may be helpful in ascertaining the meaning of the term [material] generally, we agree.  This does not mean, however, that the comments of the Full Court apply to the use of the term in the definition of disease in s 4 of the SRC Act.  Such an approach would fail to have sufficient regard to the legislative history that led to the enactment of the present legislation.  . . .

The Full Court then set out part of the second reading speech to the 1988 Bill, where the Minister for Social Security said:

It is intended that the test will require an employee to demonstrate that his or her employment was more than a mere contributing factor in the contraction of the disease.  Accordingly, it will be necessary for an employee to show that there is a close connection between the disease and the employment in which he or she was engaged. . . .

22.     After considering the second reading speech, the Full Court said it was plain that the present legislation was not intended to require an employee to demonstrate that their employment caused the disease or that it was the most important factor.  It also said that the imposition of a “but for” test was inappropriate.  However, having said that, the Full Court said that the changes brought about by the enactment of the SRC Act were intended to require that the contribution be “more than a mere contributing factor”.  The Full Court continued, saying that the inclusion of the term “material” imposes an evaluative threshold below which a causal connection may be disregarded. 

23.     There seems to be no dispute between the parties that the injuries suffered by Mr Blandthorn while serving in the Navy were injuries sustained in the course of his employment.  However, the dispute between the parties is centred on the fact that Mr Blandthorn did not complain about shoulder pain, other than at the time of injury in 1993 and 1994, until June 2003.  Mr Blandthorn said in evidence that, other than the injuries for which he was treated in 1993 and 1994, he has suffered no other injuries to his shoulders.  From his medical records, it appears that Mr Blandthorn suffered repeated injuries to his right shoulder as a result of falling during PT and also while practising and or playing rugby for the Navy rugby team.  There appears to only have been one injury to his left shoulder in March 1994, which resulted from a rugby tackle.  However, Dr Mutton, after examining Mr Blandthorn on 24 July 2003, reported that there had been no recent history of trauma to account for the deterioration in his shoulder conditions during 2003.  He reported that in his view, the sports related injuries to Mr Blandthorn’s shoulders were relatively trivial and did not require investigation or substantive treatment.  He said that they were unlikely to have resulted in permanent damage.  Dr Mutton also said he had read the ultrasound report obtained on 2 and 3 August 2004 and agreed that the ultrasound disclosed that Mr Blandthorn’s shoulder conditions were not normal.  He said that, given the ultrasound finding, one would expect some limitation of movement and impairment in the right shoulder.  Dr Mutton agreed that calcific tendonitis is often a sign of chronic injury occurring over time and not acutely.  However, he was of the view that there was no certainty that the calcific changes experienced by Mr Blandthorn were the result of a specific injury.  He said that it did not necessarily constitute direct cause and effect.  He explained that calcific changes occur in persons with and without a prior injury. 

24.     Mr Blandthorn attended the Melbourne Pain Management Clinic and was seen by Dr Rose on five occasions between 23 March 2004 and 7 September 2004.  Mr Blandthorn attended the Melbourne Pain Management Clinic was because he was having difficulty living with back and knee pain as a result of rugby caused injuries.  On the first two visits Mr Blandthorn did not mention his shoulders.  It was only on the third visit, on 20 May 2004, that Mr Blandthorn mentioned that he had a disputed claim for a shoulder injury which related to his military service and, in particular, playing rugby for the Navy.  On the next visit on 8 July 2004, Mr Blandthorn provided Dr Rose with documentary evidence of his shoulder injuries.  Dr Rose examined Mr Blandthorn’s right shoulder and noted a decreased range of movement in the shoulder joint and tenderness over the anterior aspect of the right shoulder.  His initial impression was that Mr Blandthorn was suffering from a possible chronic rotator cuff injury and that there might possibly be a tear.  He then suggested that Mr Blandthorn have an ultrasound examination of both shoulders. 

25.     On his next visit to the Melbourne Pain Management Clinic, Mr Blandthorn brought with him the reports of the ultrasound examinations carried out on both of his shoulders.  After reviewing those reports, Dr Rose concluded that Mr Blandthorn did have a basis for his complaints of shoulder pain and that this was compatible with the medical file evidence of Mr Blandthorn’s several shoulder injuries during Navy service.  In Dr Rose’s opinion, there was chronic inflammation and thickening of the rotator cuff and this was compatible with his current complaints of pain and disability.  Also, Dr Rose said that although an ultrasound may show little change in the physical condition, a person could still experience pain as a consequence. 

26.     Dr Grinwald first examined Mr Blandthorn on 2 August 2000.  On that occasion, Mr Blandthorn made no mention of his shoulder injuries.  On the second occasion when he examined Mr Blandthorn, on 18 December 2003, Mr Blandthorn presented with injuries to his shoulders.  He provided Dr Grinwald with copies of clinical notes dealing with his shoulder injuries.  Dr Grinwald noted that there appeared to be no specific investigations into Mr Blandthorn’s condition at the time of injury and that he was treated with analgesic non-steroidal anti‑inflammatory medication.  Dr Grinwald also reported that Mr Blandthorn experienced increased pain in both shoulders approximately six months prior to the consultation, that his condition was not provoked by any particular episode of heavy lifting or other recent injury but that it was aggravated by lifting anything above shoulder height.  He also reported that Mr Blandthorn did not seek medical attention because he was already taking pain-killers for his back and knee conditions.  Upon examination, Dr Grinwald noted that Mr Blandthorn had a slightly restricted range of active movement in his right shoulder.  Mr Blandthorn disclosed a normal range of movement in his left shoulder.  Dr Grinwald also reported that Mr Blandthorn’s injury to the right shoulder was more marked than that in his left shoulder.  Although he opined that Mr Blandthorn’s condition had stabilised for the medium term, he believed that there may be a progressive slow deterioration in both shoulder injuries. 

27.     Dr Grinwald examined Mr Blandthorn again on 24 November 2005.  He again remarked that Mr Blandthorn’s injuries were more pronounced in the right shoulder and were consistent with rotator cuff and acromioclavicular joint injuries.  Dr Grinwald made it clear, under cross‑examination, that although he had reported that Mr Blandthorn was totally and permanently incapacitated, that was due to a combination of his back, knees and shoulder injuries.  He said that Mr Blandthorn was not totally and permanently incapacitated due to his shoulder injuries alone.  Dr Grinwald agreed that if there were an injury to the rotator cuff, although there would not be continuous pain, one would expect to see a pattern of pain.  Dr Grinwald also agreed that if Mr Blandthorn had suffered such an injury, his continuing duties as a nurse might have been expected to produce further pain.  However, if there were low pain over a joint, he said that it may be difficult to distinguish from other pain.  When asked whether, given a history of no reported problems over a period of seven years or more, doubts might arise that the reported incidents caused the changes in Mr Blandthorn’s shoulders, Dr Grinwald agreed that it did raise a question, but he said it could not be ruled out.  It was possible that the pain he now experienced was not related to the injury.

28.     Dr Grinwald was asked to read Dr Mutton’s report and to comment on Dr Mutton’s statement that the injuries suffered by Mr Blandthorn in 1993 and 1994 were relatively trivial.  He disagreed.  He said that it depended on the outcome.  He said he had some reservations about Dr Mutton’s opinion because the right shoulder did disclose a significant abnormality which could be troublesome over a period of time.  He suggested that the injury could result in permanent change over time, at least as far as the right shoulder was concerned.  In re‑examination Dr Grinwald confirmed that, in his opinion, the injuries suffered by Mr Blandthorn in 1993 and 1994 were not trivial.  He also confirmed that the ultrasound reports were consistent with the injuries that Mr Blandthorn had suffered and that they reflected a long‑standing injury.  He also confirmed that the left shoulder ultrasound indicated an injury which was not as severe as that in the right shoulder.

29.     On the medical evidence presented to the Tribunal, it is difficult not to conclude that, on the balance of probability, the ailment suffered by Mr Blandthorn in respect of both of his shoulders is related to the injuries he received in 1993 and 1994 when he was in the Navy.  The injuries recorded in Mr Blandthorn’s medical documents disclose greater damage to the right shoulder than to the left.  That is consistent with Mr Blandthorn’s claim that he suffers more pain and greater restriction of movement in the right shoulder.  It is also consistent with the ultrasound examination conducted in August 2004.  All of the medical opinions that deal with Mr Blandthorn’s shoulder injuries indicate that there is, at its lowest, a possible relationship between the ailments he now suffers and the injuries he received in 1993 and 1994.  Also, the Merck Manual states that while the cause of bursitis is usually unknown, trauma, either repetitive or acute may play a role, as may infection and crystal-induced disease.  As for tendonitis, the Merck Manual indicates that such a condition involved degeneration and associated inflammation of the tendon or inflammation of the tendon sheath lining.  Again, the cause is said to be often unknown and most cases occur in people that are middle aged or older as the vascularity of tendons decreases.  However, the Merck Manual also states that repetitive micro trauma may contribute.  Repeat or extreme trauma (short of rupture) and strain or excessive (unaccustomed) exercise probably also contribute.

30.     The most significant factor against Mr Blandthorn’s claim regarding the cause or link between his shoulder injuries and the ailment from which he now suffers is the fact that, despite numerous medical examinations prior to June 2003, Mr Blandthorn had not made any mention of his shoulder problems.  This was despite the fact that he had made a number of claims for compensation and had been examined on many occasions after sustaining the injuries.  In July 2001 he lodged an application with Centrelink claiming the disability support pension.  There was no reference to either shoulder condition in that claim.  According to Mr Blandthorn, he did not mention his shoulder problems when making any prior claims because he did not have a medical report in respect of those complaints.  Mr Blandthorn also indicated that because of his knees and his back injury, he had been prescribed strong pain‑killers, including morphine, which may have well masked any pain arising out of his shoulder ailments.  Although it is difficult to understand why Mr Blandthorn did not experience pain in his shoulders at an earlier time, the answer may lie in the nature of the disease from which he now suffers, which is degenerative, and the strong medication which he was prescribed for his back and knees.  Whatever the answer might be, it does not alter my opinion that, on the balance of probability, the disease from which Mr Blandthorn now suffers in both shoulders is causally connected to the injuries suffered while in the Navy in 1993 and 1994.  Furthermore, that causal link meets the “material contribution” test in the definition of “disease” found in s 4 of the SRC Act.  In my view, the evidence does disclose a close connection between the disease and the employment in which Mr Blandthorn was engaged in 1993 and 1994.  The consistency between the ailment complained of, the nature of the injuries suffered by Mr Blandthorn, the ultrasound reports regarding the condition of Mr Blandthorn’s shoulders and the expert medical evidence support my opinion.

CONCLUSION

31. In this application the Tribunal has been asked only to determine whether the MRCC is liable to pay compensation in accordance with the SRC Act for the injuries suffered by Mr Blandthorn in the course of his employment with the Navy. Although s 14(1) of the SRC Act states that Comcare (in this case the MRCC) is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment, a determination under s 14 in respect of liability does not necessarily involve a determination that the injury has resulted in death, incapacity for work or impairment (see Riddle v Telstra Corporation [2006] 149 FCR 348 at 353).  In fact, s 16(2) of the SRC Act provides that the MRCC is liable to pay for the cost of medical treatment obtained in relation to the injuries suffered by the employee, whether or not the injury results in death, incapacity for work or impairment.  Clearly, as Edmonds J said in Riddle, a determination under s 14 may determine liability to pay compensation in respect of an injury suffered by an employee before it results in death, incapacity for work or impairment, on the basis that the Commonwealth will only so liable if the injury results in death, incapacity for work or impairment. Liability for compensation in respect of medical expenses under s 16 of the SRC Act will apply irrespective of whether there is death, incapacity for work or impairment provided that an employee can meet the requirements of s 16(1) of the SRC Act.

32.     Given I have found, on balance, that Mr Blandthorn’s injuries suffered in 1993 and 1994 have materially contributed to the ailments he now suffers in both shoulders, his application before this Tribunal must succeed.  Therefore, the reviewable decision made on 12 March 2004, in respect of both matters, should be set aside and the matter remitted to the MRCC for reconsideration of any compensation which may be due to Mr Blandthorn in respect of his shoulder injuries.

I certify that the thirty‑two [32] preceding paragraphs are a true copy of the reasons for the decision of:

Egon Fice, Member

(sgd)       Catherine Lake

Clerk

Date of hearing:  3 April 2006 and 7 June 2006

Date of decision:  12 July 2006
Counsel for the applicant:            Mr S. McCredie
Solicitors for the applicant:          Mr P. Simon, MMR Legal
Counsel for the respondent:        Mr B. Dubé
Solicitors for respondent:            Ms P. Heffernan, Australian Government Solicitors