Boswell and Comcare
[2010] AATA 830
•27 October 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 830
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2344
GENERAL ADMINISTRATIVE DIVISION ) Re CRAIG BOSWELL Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr Egon Fice, Senior Member
Dr Roslyn Blakley, Member
Date27 October 2010
PlaceMelbourne
Decision The Tribunal sets aside the decision made by Comcare on 17 April 2009 and in substitution decides Comcare is liable to pay the costs of Mr Boswell’s reasonable medical treatment for his right shoulder including the cost of the surgery conducted by Mr Bell on 16 June 2009. Comcare must also pay any further reasonable medical expenses incurred by Mr Boswell in the course of recovery from his surgery.
Comcare must pay Mr Boswell’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.
(sgd) Egon Fice
Senior Member
COMPENSATION – Federal Agent – workers compensation – injury – right shoulder – treatment – treatment expenses – medical expenses – compensable injury – aggravation – degenerative condition – chiropractic treatment – osteopathic treatment – physiotherapy – orthopaedic surgeon – arthroscopic surgery
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 16, 64(1)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No 54/2007)
REASONS FOR DECISION
27 October 2010 Mr Egon Fice, Senior Member
Dr Roslyn Blakely, Member
1. In May 2006, when performing close protection duties as a Federal Agent in the Solomon Islands, Mr Craig Boswell claimed he injured his right shoulder while working out in a gymnasium. Three days later, while on a return flight from the Solomon Islands to Australia, Mr Boswell claimed he suffered from food poisoning which caused him to fall and injure his neck and upper back. He lodged a claim for workers' compensation in respect of those injuries on 6 September 2006. Comcare accepted liability for all injuries claimed by Mr Boswell and met his medical expense claims. The injury to Mr Boswell's right shoulder was described as rotator cuff (capsule) strain (right). It is only that injury which is the subject of this claim before the Tribunal.
2. Mr Boswell continued to experience right shoulder pain throughout 2007, 2008 and 2009. He had treatment for that injury which was paid for by Comcare. However, following a number of extensions to liability for medical expenses, on 3 February 2009, Comcare notified Mr Boswell that it had decided that as of that date, he ceased to suffer effects from his compensable injury. Comcare therefore determined that no compensation for medical expenses pursuant to s 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) was payable after 3 February 2009. Mr Boswell sought reconsideration of that decision. On 17 April 2009, a Comcare delegate affirmed Comcare's determination made on 3 February 2009. Mr Boswell sought a review of the reconsidered determination made by Comcare by this Tribunal pursuant to s 64(1) of the SRC Act.
3. The issues which arise for determination in this matter are:
(a)whether Mr Boswell continued to suffer from the effects of his compensable right shoulder injury after 3 February 2009; and
(b)if the answer to (a) is in the affirmative, whether Mr Boswell was entitled to compensation for medical expenses in respect of the medical treatment he obtained in relation to his right shoulder injury.
HISTORY OF INJURIES PRIOR TO MAY 2006
4. Mr Boswell testified that in 1991, he fractured his right clavicle during an Army Reserve unarmed combat course. In 1993, while involved in a defensive tactics instructor's course, Mr Boswell sustained a lower back injury. In July 1999, while instructing on an Australian Federal Police Defensive Tactics Course, he suffered a neck injury. Mr Boswell sought and received chiropractic and osteopathic treatment for the above injuries. This was despite the fact that Comcare ceased liability for the cost of Mr Boswell's medical treatment in late 1995. His claim for the neck injury suffered in 1999 was accepted by Comcare. Mr Boswell testified that the pain in his neck has subsided such that it is now simply an annoying ache, with tightness requiring occasional therapeutic treatment.
5. From the clinical notes in evidence, it appears Mr Boswell consulted Dr Belinda Goad of the St Kilda Medical Group in July 2004. The notes record that since the injury to his right clavicle in 1991, Mr Boswell always had problems with clicking in the shoulder and weakness in the arm. Dr Goad's notes also record that Mr Boswell nevertheless was able to rock climb although he was always aware of the weakness and he was worried that he might be doing some harm to his shoulder. On examination, Dr Goad reported that Mr Boswell had a loss of muscle mass in his right shoulder and that there was a bony prominence at the sternoclavicular (SC) joint, although there was good power. She referred Mr Boswell for an x-ray and ultrasound of his right shoulder.
6. Dr Frank Burke provided the following report after the x-ray and ultrasound:
X-ray right shoulder and clavicle
There is slight thickening of the mid shaft of the clavicle which is probably the result of a previous fracture.
The acromio-clavicular (AC) joint is normal.
The SC joint is poorly assessed with x-ray and is best assessed with a CT scan.
The glenohumeral joint is normal.
No other bony or joint abnormality is detected.
Ultrasound Right Shoulder
The supraspinatus, infraspinatus and subscapularis tendons insert normally into the humeral head.
The rotator cuff is a good thickness with no evidence of a tear or calcification.
The biceps tendon is normal.
The dynamic study shows normal movement of the supraspinatus tendon beneath the coraco-acromial ligament.
7. In 2004 Mr Boswell was also attending the Osteopathic Health Group (OHG) for osteopathic treatment. Although Mr Boswell testified that at the time he had the x-ray and ultrasound in July 2004, he was not experiencing pain or loss of function since his clavicle repaired, the OHG clinical notes record that he was experiencing right sided shoulder discomfort, clicking and shoulder tightness.
8. Mr Boswell suffered another injury in October 2004 when he broke some ribs on his right side. Comcare accepted liability for that injury.
9. The clinical notes of OHG for February 2005 record Mr Boswell experiencing pain and discomfort in his right shoulder and the comment that he felt he never gave his clavicle a complete chance to recover fully. For the remainder of 2005 and in early 2006, the OHG clinical notes record some soreness in the right shoulder after exercises and pain originating in his bicep.
MEDICAL HISTORY AFTER 2 MAY 2006
10. Mr Boswell claimed he injured his right shoulder working out at the gymnasium on 2 May 2006. He was then stationed in the Solomon Islands on close protection work. He attended the Aspen Medical Centre on 2 May 2006 and its records indicate Mr Boswell reported experiencing pain in the right shoulder after working out with weights. The records also state Mr Boswell had tenderness in the right bicipital region and the AC joint.
11. The clinical notes from OHG record that Mr Boswell attended the clinic on 13 May 2006 complaining of pain in the right bicep area and neck. Later that month, the clinical notes indicate that his neck was checked and that his upper back and shoulder had been a bit sore.
12. Mr Boswell prepared a summary of his diary which was admitted into evidence. In July 2006, he recorded that he was moving house. The OHG clinical notes record an attendance on 12 July 2006 where it is stated just moved house. Also recorded is the statement: feel looser in shoulders, neck feels better.
13. Mr Boswell spent a month in Jakarta over September and October 2006. A consultation with OHG on 27 October 2006 refers to his lower back, neck and right shoulder, which he wanted checked. The clinical notes record that he had made a Comcare claim. The OHG notes for the remainder of 2006 indicate Mr Boswell complaining of tightness in the right shoulder.
14. In the course of the first four months of 2007, Mr Boswell regularly attended OHG and the clinical notes record ongoing pain and restrictions in his right shoulder as well as his lower back and neck. It appears that Mr Boswell's general practitioner, Dr Gary Pellizzari, referred Mr Boswell to Mr Simon Bell, an orthopaedic surgeon, in March 2007. Although the OHG clinical notes record him seeing a shoulder specialist, Mr Bell's witness statement dated 17 July 2009 records he first saw Mr Boswell on 22 May 2007. We have no doubt that he was examined by Mr Bell on 22 May 2007. However, Dr Pellizzari wrote to Mr Bell on 14 May 2007 thanking him for having seen Mr Boswell and stating that Mr Boswell would like a consultation with Mr Bell in order to discuss the management of problems he was having with his right shoulder. We have no record of the March 2007 consultation with Mr Bell.
15. Mr Boswell consulted Mr Bell on 22 May 2007 and he provided Dr Pellizzari with a brief report dated the following day. Mr Bell said that Mr Boswell suffered no muscle wasting and had a good range of glenohumeral movement with full elevation. All elements of the rotator cuff had normal power with no pain on testing, although an O'Brien's Compression Test for the AC joint demonstrated some pain and weakness. Mr Bell said the x-ray was normal and the MRI scan demonstrated no major pathology. There was no damage to the rotator cuff on the ultrasound. Mr Bell said that in his opinion, Mr Boswell's symptoms appeared to be related to the AC joint. He explained there is a meniscus in the joint which can be damaged and cause symptoms even when the x-ray is normal. He injected Mr Boswell's AC joint with local anaesthetic and a steroid. He said there was a good response to the anaesthetic following which the O'Brien's Test was negative. He indicated a further review in four weeks and if there was no long term benefit from the cortisone, he suggested the next step was to consider arthroscopic surgery.
16. Mr Boswell continued to attend the OHG until he was reviewed again by Mr Bell on 18 June 2007. The OHG clinical notes indicate that Mr Boswell did not believe the cortisone was helping him at all. When Mr Boswell was reviewed by Mr Bell on 18 June 2007, Mr Bell reported that there was no improvement in his shoulder symptoms and Mr Boswell reported a tight feeling. He had received physiotherapy. He was next reviewed by Mr Bell on 13 August 2007. The clinical notes of OHG record that Mr Boswell continued to complain of shoulder pain.
17. Upon examining Mr Boswell in August 2007, Mr Bell reported that his symptoms had been better at rest but that he had some pain in the front of the shoulder and some in the scapular region. On examination, he noted tenderness around the subscapularis region. There was a good range of glenohumeral movement.
18. Mr Boswell continued to attend OHG through to November 2007 when he was again seen by Mr Bell. The clinical notes of OHG indicate that while on some occasions he reported having a workout without pain, and that his shoulder was not too bad, there were other times when he had pain and his shoulder was described as being sore. On examination by Mr Bell in November 2007, Mr Bell said that Mr Boswell’s shoulder seemed to be improved; that he was doing some gym work and trying to improve his strength. He still had difficulties with pushing activities. There was good power of the rotator cuff and no pain on compression of the AC joint and no pain on testing the subscapularis. Mr Bell did not see Mr Boswell again until 26 March 2009.
19. Between November 2007 and March 2009, Mr Boswell regularly received osteopathic treatment at OHG. However, there was a significant break in the treatment because Mr Boswell spent a period of approximately eight months, commencing in January 2008, in the Northern Territory as part of Operation Themis. This was part of the intervention and support of Aboriginal communities. He said that while he was in the Northern Territory, he did light upper body training and general fitness training as recommended by the physiotherapist associated with Mr Bell's practice. He said he did experience flare ups of his right shoulder and low back at times but the work he was doing in the Northern Territory was not physically demanding.
20. In July 2008, upon returning from the Northern Territory, Mr Boswell again had treatment at OHG. The clinical notes of that attendance indicate that he had an occasional ache in the right shoulder which was aggravated by overhead arm activity. However later in July 2008 the clinical notes record that his right shoulder was improving and overhead arm activity was okay.
21. Mr Boswell attended the OHG on a number of occasions in August, September, October, November and December 2008. The clinical notes of those attendances indicate that on 22 August 2008, he aggravated his right shoulder when moving house. However, some days later, the notes record that it was feeling a bit better although it had been aggravated by prolonged carrying of furniture. Then, on 3 September 2008, the records state that he had no right shoulder pain when moving house and that it hasn't bothered him. He was using a wheat bag and doing fit ball exercises, both of which were helping. At this time he was seeing Dr Kristen Manallack at OHG. Dr Manallack wrote a letter to Comcare, which is undated but which she said in her oral evidence was written on 5 September 2008. The letter stated that Mr Boswell did not appear to be experiencing symptoms such as pain, reduced range of motion or a limited capacity to use the shoulder as previously described. She also stated that she did not recommend compensable osteopathic treatment because Mr Boswell was asymptomatic.
22. Following Dr Manallack's report to Ms Jodie Murphy of Comcare's Claims Management Centre, Ms Murphy wrote to Mr Boswell on 9 September 2008 repeating what Dr Manallack had said in her letter of 5 September 2008. Ms Murphy concluded that Comcare's liability for osteopathy would cease on 8 October 2008.
23. In a clinical note dated 17 September 2008 made by Dr Manallack, she recorded that Mr Boswell's right shoulder/pectoral region was sore. She also recorded that Mr Boswell was unable to do anything with his shoulder elevated and he was unable to conduct repetitive overhead activities (for example, painting).
24. In a clinical note dated 8 October 2008, Dr Manallack recorded that Mr Boswell had aggravated his right shoulder by painting/hammering above his head. In his written statement, Mr Boswell explained that in 2009, he had purchased a house in Townsville as an investment and arranged for that house to be renovated by a friend of his who lived there. He said that he made a few trips to Townsville for inspections and purchasing hardware and the like. In his evidence in chief, Mr Boswell denied doing any hammering overhead or any overhead work at all. This was repeated by Mr Boswell under cross-examination. Mr Boswell did admit to painting a deck in Melbourne at that time but not to overhead hammering.
25. In a letter to Comcare dated 21 October 2008, Dr Manallack said that Mr Boswell presented on 8 October 2008 following a flare up of his right shoulder pain after activities. She said that physical examination disclosed a decrease in internal rotation of the right shoulder and an increase in the muscle tone of the right shoulder musculature. She then explained that Mr Boswell presented on 15 October 2008 with a strong ache through the right shoulder experienced intermittently through the prior week. This is also recorded in her clinical notes. Dr Manallack recommended weekly osteopathic treatment until his injury settled down, which she estimated to be in four to six weeks.
26. Following Dr Manallack's report, Comcare wrote to Mr Boswell on 23 October 2008 stating that it had arranged an independent assessment with Dr David Macintosh on 12 November 2008.
27. Dr Macintosh examined Mr Boswell on 18 November 2008 and provided Comcare with a written report dated 21 November 2008. In his report, Dr Macintosh said that Mr Boswell told him he could not do any heavy activity or forceful combat; or put any pressure on his right arm. He was working full time but was limited when dealing in a physical way with other people. He had stopped rock climbing but he indicated he was able to water ski, although that was uncomfortable. On examination, Dr Macintosh reported that Mr Boswell had full range of movement in his right shoulder but complained of some discomfort coming down from full extension and abduction. Dr Macintosh said Mr Boswell had anterior subacromial tenderness but there was no muscle wasting. He appeared to have normal power and deep tendon reflexes and sensation in the right arm. Provocation tests were negative.
28. In his summary and assessment, Dr Macintosh said Mr Boswell probably suffered a soft tissue injury to his right shoulder when working in the gymnasium in mid 2006. He diagnosed soft tissue injury to the right shoulder with some residual symptoms from a right rotator cuff lesion which was probably underlying and of longstanding, and which was aggravated by the weightlifting episode. In his opinion, Mr Boswell's right shoulder problems were no longer related to any work injury.
29. On 28 November 2008, Ms Murphy from Comcare Claims Management wrote to Dr Vinotha Vijayakumar enclosing a copy of Dr Macintosh's report. Ms Murphy said that Dr Macintosh was of the opinion that Mr Boswell's right shoulder injury had resolved and that no further treatment was required in relation to his compensable injury. She stated that she had issued an intent to cease liability for compensation although she provided Mr Boswell with the opportunity to provide further medical evidence up to and including 23 January 2009. She invited Dr Vijayakumar to provide any further comments and advice.
30. We note that Dr Macintosh did not in fact find that Mr Boswell was asymptomatic. He simply stated that his current symptoms were due to underlying, non-work related changes to the rotator cuff. He was of the opinion Mr Boswell suffered from chronic mild rotator cuff syndrome which was essentially degenerative in nature. In his opinion, that condition was probably aggravated by Mr Boswell's weightlifting activities in 2006. He was of the view that the aggravation had resolved.
31. Dr Vijayakumar responded to Ms Murphy's offer to accept further evidence regarding Mr Boswell's medical condition. He wrote to Ms Murphy on 21 January 2009 setting out a summary of events prior to that date. Dr Vijayakumar reported that Mr Boswell told him that overall his right shoulder was a lot better but continued to be painful at times. Because of the ongoing symptoms, Dr Vijayakumar recommended that Mr Boswell see Mr Bell once again for review. He reported that Mr Boswell continued to have ongoing symptoms related to his right shoulder which limited the use of his right arm.
32. In a letter dated 3 February 2009, Comcare determined that Mr Boswell was no longer entitled to compensation pursuant to s 16 of the SRC Act in respect of medical expenses.
33. Dr Vijayakumar referred Mr Boswell to have an MRI which was done on 20 March 2009. The findings on the MRI were:
· the AC joint was relatively preserved;
· there was minimal capsular thickening but without marked degenerative change or periarticular bone marrow oedema;
· there was a small amount of subacromial and subdeltoid bursitis posterosuperiorly;
· the coracohumeral ligament was intact;
· the acromion was gently type 2 in shape.
34. Mr Bell again examined Mr Boswell on 26 March 2009. In a report prepared by Mr Bell on 17 July 2009, he said that on examination, Mr Boswell had good power of the rotator cuff and a good range of glenohumeral movement, however there was pain on compressing the AC joint particularly on the O'Brien’s Test. Mr Bell recorded that Mr Boswell decided to go ahead with arthroscopic surgery which was carried out on 16 June 2009.
35. An operation report dated 16 June 2009 records the procedure performed by Mr Bell on that day. The report stated:
There was evidence of obvious rotator cuff tendonitis and impingement. The superior surface of the supraspinatus was rather shaggy with superficial partial tearing which was debrided. There was evidence of grade 2 impingement under the acromion. Using the power equipment the anterior inferior corner of the acromion was removed and the coracoacromial ligament divided.
The small shaver and arthroscope were used for the acromio-clavicular joint which was approached via anterior and posterior portals. The meniscus was torn and was debrided. There was a small defect in the inferior capsule. The articular surface over the acromion was normal. Over the distal clavicle there was a small area centrally down to the subchondral bone. The whole area was debrided and the inflamed synovium removed.
36. Mr Bell again examined Mr Boswell on 25 June 2009. He reported that his wounds had healed well and that he had a good range of shoulder movement with self assisted elevation to 120 degrees. He was given a further rehabilitation program to carry out and arranged to review him again.
37. Mr Bell saw Mr Boswell on 28 September 2009. In a report dated 27 November 2009, Mr Bell reported that Mr Boswell said his shoulder was a little sore when doing exercises. He had some pain anteriorly and also some pain in the scapular region. On examination, there was little loss of glenohumeral movement in all directions. He had good power of the supraspinatus and no pain on compressing the AC joint. Therefore, Mr Bell concluded that he believed Mr Boswell had developed mild capsulitis which was responsible for his soreness and a hydrodilation was organised for this. Although Mr Bell said that the response of capsulitis to management was unpredictable, when last seen by him, Mr Boswell's surgery for his rotator cuff and the acromio-clavicular joint appeared to have been successful with relief of the symptoms from these two areas. Now he just had to get over the capsulitis.
38. Mr Boswell's evidence was that he had to take some nine months off after his shoulder surgery. He did have hydrodilation performed on his shoulder and it helped to relieve the frozen shoulder condition. He said he continued to have some difficulties in day to day activities and doing many of the things that he used to do prior to his surgery. He continues to have osteopathic treatment on his shoulder. He returned to work on 29 March 2010 on restricted duties.
DOES MR BOSWELL CONTINUE TO SUFFER FROM HIS COMPENSABLE INJURY?
39. The difficult question with which we are faced is whether it can be said, on the balance of probabilities, that the problems Mr Boswell experienced with his right shoulder which resulted in him having surgery conducted by Mr Bell in June 2009 should be attributed to the injury he claimed to have suffered when in the Solomon Islands in May 2006. Much depends on the expert medical evidence and the accuracy of the account given by Mr Boswell of his activities and symptoms prior to and since suffering the claimed injury.
40. Mr Russell Miller, an orthopaedic surgeon, provided a written statement dated 26 January 2010. He also gave oral evidence. He examined Mr Boswell on 13 January 2010. Mr Miller recorded that Mr Boswell told him he had ongoing problems with his right shoulder with an ache, discomfort and intermittent pain which was worse when he attempted overhead activities or repetitive activities. Mr Boswell also told Mr Miller about the fracture he suffered to his right clavicle in approximately 1991. Mr Boswell was recorded as having said he had no symptoms from the fractured clavicle after a period of treatment and that he had no ongoing shoulder symptoms until the injury he suffered in May 2006. He also described some neck and low back pains and discomfort.
41. On examination, Mr Miller noted well healed arthroscopic portals. He said there was no deltoid muscle wasting but there was tenderness in the region of the acromio-clavicular joint. His right shoulder movements were measured with a goniometer and the range of motion was as follows:
Abduction
120 degrees
Forward Elevation
120 degrees
External Rotation
30 degrees
Internal Rotation
40 degrees
Mr Miller also recorded that Mr Boswell experienced irritability with overhead movement.
42. Mr Miller's opinion was that Mr Boswell's right shoulder injury related to the work injury he suffered in May 2006. According to Mr Miller, after Mr Boswell suffered the injury to his right shoulder, he developed an impingement syndrome and problems with the acromio-clavicular joint. Other than that, Mr Miller gave no reasons in his written statement as to why he arrived at the conclusion that the symptoms Mr Boswell continues to experience in his right shoulder are related to the May 2006 injury.
43. In his oral evidence, Mr Miller said that in his opinion, the pathology in Mr Boswell's right shoulder was likely to be a combination of damage to the acromio-clavicular joint and rotator cuff together with referred pain from his cervical spine. He said this was common. Mr Miller also said that the surgery conducted by Mr Bell was appropriate treatment for Mr Boswell's right shoulder condition.
44. In cross-examination, when it was put to Mr Miller that there was little in the way of objective signs following the claimed injury, Mr Miller said that what Mr Boswell described was typical of that type of injury. When it was put to Mr Miller that Mr Boswell described a click in his right shoulder prior to suffering the injury in 2006, Mr Miller said that sign can be caused by the rotator cuff or the acromio-clavicular joint. He said that by itself, it did not establish anything as it was simply one of many symptoms. When it was put to Mr Miller that because Mr Boswell lived a very active physical life, with activities such as abseiling putting stress on arms and shoulders, one would expect degenerative changes, Mr Miller did not disagree with that. When it was put to him that it was clear Mr Boswell had a shoulder problem prior to the May 2006 injury, Mr Miller said that if there was a pattern, that might establish the connection.
45. Mr John Wallace of counsel, who appeared on behalf of Comcare, suggested to Mr Miller that given the evidence from OHG regarding fluctuations in Mr Boswell's symptoms after 2006, there may have been an aggravation at times due to activity and then a return to his pre 2006 level. Mr Miller said that depended on an evaluation of the symptoms although that would not be unusual. Mr Wallace also put to Mr Miller that in September 2008, Mr Boswell told the osteopath who was treating him that he had no pain even though he was moving house at the time. Mr Miller responded by saying that, if he had no pain at that time he simply had no pain. Mr Miller then explained that after doing home renovations, Mr Boswell’s osteopath reported that he had a strong ache and symptoms in the right shoulder. Mr Miller said that the fact that Mr Boswell experienced pain one day and was without pain on another day was not indicative of anything. Rather, in his opinion, one needs to look at and establish a pattern in the history given by the patient. In fact, Mr Miller suggested a pattern of over six months in order to establish a relationship between events and the injury.
46. We have already referred to Dr Macintosh's written report of 21 November 2008. In his evidence-in-chief, Dr Macintosh repeated his opinion and, when asked whether Mr Bell's report of 27 November 2009 caused him to alter his diagnosis, he said no. He said it was consistent with degenerative change. In his opinion, Mr Boswell had an underlying rotator cuff degenerative condition which was aggravated by his exercise in the gymnasium in 2006. He said that because there was no specific injury, the pain Mr Boswell experienced on the following day suggested inflammation rather than an injury.
47. In cross-examination, Mr Mark Carey of counsel, who appeared on behalf of Mr Boswell, asked Dr Macintosh if Mr Boswell had a rotator cuff degenerative syndrome, what did the degenerative syndrome consist of? Dr Macintosh said that nothing showed up on any of the imaging and Mr Boswell's condition was due to overuse, particularly with exercise, which resulted in inflammation and his pain. He did not consider that Mr Boswell had suffered a significant injury in May 2006. When it was put to Dr Macintosh that rotator cuff syndrome can be asymptomatic, he agreed. When Mr Carey put to Dr Macintosh that there was a significant change in symptoms; a change in Mr Boswell's ability to exercise and use his right shoulder following the claimed incident in 2006; and that a change in the pattern of symptoms would support the claim, Dr Macintosh said that may be so but it did not fit with the history he had taken and his examination.
48. Mr Keith Elsner, an orthopaedic surgeon, examined Mr Boswell on 30 November 2009. He provided a written report dated 7 December 2009 which was taken into evidence.
49. Mr Elsner recorded a detailed history taken from Mr Boswell. It included the fact that he had fractured his right clavicle while with the Army Reserve in 1991 and that this injury healed with no residual problems. He noted that Mr Boswell had right shoulder x-rays and an ultrasound examination on 26 July 2004 which was ordered by Dr Goad of the St Kilda Medical Group.
50. When asked about these, apparently Mr Boswell told Mr Elsner that he had no symptoms in the right shoulder area and no pain, but he wanted to check on the lump on his collar bone (clavicle) in relation to the old fracture. Mr Elsner did not have records or a report from the St Kilda Medical Group to indicate why that investigation was done. Nevertheless, he said he would be surprised if Mr Boswell had a right shoulder ultrasound examination, which included the rotator cuff, if it was just to investigate the lump on his clavicle which was apparent on the x-ray.
51. Mr Wallace put to Mr Elsner in his examination-in-chief that Mr Boswell had some 16 sessions of osteopathic treatment between 2004 and 2006. He said the complaints included right shoulder discomfort, shoulder pain, clicking of the shoulder, discomfort and soreness after exercise and right side bicep tenderness. He asked Mr Elsner if that altered his opinion. Mr Elsner answered no. When asked if it influenced his opinion, he said that it strengthened his opinion that Mr Boswell had significant ongoing problems at least from 2004 onwards.
52. In cross-examination, Mr Carey pointed out to Mr Elsner that Mr Boswell’s treatments were declining over the period leading up to the claimed injury in 2006. In fact, there was only one treatment in 2006. Mr Elsner agreed that was indicative of a pre-existing problem and that he was having fewer treatments. Mr Elsner confirmed that in his opinion, Mr Boswell's current condition was not a continuation of the injury he sustained on 2 May 2006 but rather an exacerbation of his constitutional degenerative condition. Mr Elsner was also of the view that his current condition had nothing to do with his 1991 injury of the clavicle. In fact, Mr Elsner was of the opinion that his current condition was due to aggravation from home renovations conducted in October 2008.
53. When Mr Carey put to Mr Elsner that Mr Boswell had further treatment in January 2008, prior to going to the Northern Territory for a period of some eight months, Mr Elsner said that it may have been something else that happened in between time, but Mr Bell had demonstrated a positive test to Mr Boswell's AC symptoms in 2007 and the pain had settled in that year. However, as Mr Carey pointed out to Mr Elsner, the clinical notes from OHG indicate continuing consultations into early 2008. Mr Carey pointed out to Mr Elsner that Mr Boswell spent some eight months in the Northern Territory in remote communities. He explained that Mr Boswell then came back for a nine day period in March 2008, and he had treatment at the OHG for continuing problems with his right shoulder, suggesting that the shoulder was about the same as the last time he visited the osteopath. He further explained that the OHG notes of 31 March 2008 disclose a slight improvement over the five days indicating a continuation of the same symptoms. When Mr Carey pointed out these details to Mr Elsner, Mr Elsner agreed.
54. On his return from the Northern Territory in July 2008, Mr Boswell again attended the OHG and the clinical notes indicated his right shoulder suffered from occasional aches which were aggravated by overhead arm activity. Mr Boswell continued to have treatment through to December 2008. Mr Carey suggested to Mr Elsner that it was reasonable to assume, if there were no intervening events, Mr Boswell's shoulder problems continued with the same severity. Mr Elsner said he was not sure.
55. When it was pointed out to Mr Elsner that Dr Manallack's report provided in September 2008 seems to have been based on one consultation on 3 September 2008 in which the clinical notes record no pain in his shoulder even though he had been moving house; and that his subsequent consultation on 17 September 2008 was recorded as right shoulder and pectoral region sore and unable to do anything with shoulder elevated; and unable to do any repetitive overhead activities (painting); Mr Elsner appeared to indicate that those activities aggravated his condition.
56. However, when Mr Carey pointed out to Mr Elsner that Mr Boswell had complained of an inability to carry out overhead activity since May 2006; that he did not experience that inability prior to May 2006; and that would suggest the result of the 2006 injury indicated the aggravation was not transitory; Mr Elsner said that he would agree with that proposition. Mr Carey then suggested that the renovations in which Mr Boswell was involved in Townsville in October 2008 again indicated a continuing problem with activity above shoulder level. Mr Elsner said that seemed to be the case on the facts stated. Mr Carey then suggested to Mr Elsner that one should look at the pattern of symptoms over a period of time in order to make a proper assessment. Mr Elsner said that was a fair approach and that if the facts were as stated by Mr Carey, the May 2006 event could be significant.
57. The evidence before us seems to raise a number of possibilities. They are:
(a)Mr Boswell’s ongoing symptoms in his right shoulder are simply manifestations of the injury he sustained in 1991 when he fractured his right clavicle;
(b)Mr Boswell is now suffering from degenerative changes which arose out of his original 1991 injury or from the sustained physical activity in which Mr Boswell appears to engage both privately and in the course of his employment;
(c)Mr Boswell suffered an aggravation of the degenerative changes to his shoulder as a result of the May 2006 incident in the gymnasium while in the Solomon Islands but that aggravation was temporary and its effects have now ceased;
(d)Mr Boswell suffered an aggravation of degenerative changes to his shoulder as a result of the May 2006 incident in the gymnasium while in the Solomon Islands the effects of which have not ceased; and
(e)Mr Boswell suffered a new injury into 2006 the effects of which have not ceased.
58. The expression injury is defined in s 4(1) of the SRC Act as follows:
Injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
59. In the event that we find Mr Boswell’s incapacity as a result of his right shoulder arises from degenerative changes, we should also refer to the definition of disease in the SRC Act. It is defined 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;
60. It should be noted that we have referred to the definitions of injury and disease as set out in the SRC Act before the amendments to those definitions were made by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (No 54/2007) (SRC Amendment Act 2007) which commenced on 13 April 2007. That is because Mr Boswell’s injury or aggravation of a disease arose prior to the commencement of the SRC Amendment Act 2007.
61. In our opinion, the first of the possibilities referred to above is readily disposed of. All of the medical practitioners who gave evidence in this matter ruled out any association between Mr Boswell’s current problems with his right shoulder and the injury he sustained to his right clavicle in 1991. Furthermore, as the outpatient clinical record from the Aspen Medical Centre on the Solomon Islands indicates, Mr Boswell experienced pain in the right shoulder after having worked out with some weights. This is despite the fact that the clinical notes also record him experiencing symptoms for one year prior to that incident. The report indicates tenderness in the right bicipital region and the AC joint.
62. Mr Carey submitted that Mr Boswell did not quibble with the proposition that his fractured clavicle did not contribute in any way to the symptoms he experienced after May 2006. Mr Wallace also pointed out that in completing his claim for workers’ compensation, in answer to a question whether he had ever had a previous similar symptom, injury or illness, work related or otherwise, as far as his right shoulder was concerned, Mr Boswell answered no. Accordingly, we find that the symptoms Mr Boswell now experiences in his right shoulder are not in any way related to the 1991 injury.
63. Dr Macintosh was of the opinion that Mr Boswell had an underlying rotator cuff degenerative condition which was subsequently aggravated by the event in May 2006. When it was put to Mr Miller that the physical activities Mr Boswell engaged in put stress on his arms and shoulders which could result in degenerative changes, Mr Miller did not disagree. Again, Mr Carey did not quibble with the fact that Mr Boswell may have experienced an underlying asymptomatic condition in 2004. Mr Miller also explained that in order to establish any connection with a pre‑existing condition, if there was a pattern of experiencing symptoms, that might establish some connection between the pre-existing condition and subsequent symptoms.
64. The problem with making a connection between the underlying condition or conditions which Mr Boswell may have had prior to the 2006 incident and his subsequent symptoms is that there was a marked change in the description of those symptoms by Mr Boswell following the May 2006 incident in the gymnasium. Following that incident, Mr Boswell sought medical treatment and the Aspen medical record refers to rotator cuff aetiology. This was in addition to the AC joint space tendons also referred to. Mr Boswell reported that after the gymnasium incident, he had difficulty performing any overhead activity with his right arm. Prior to that incident, he was physically very active including rock climbing regularly which involved substantial overhead arm activity. We have no reason to doubt this evidence.
65. The change in Mr Boswell’s right shoulder is also evidenced by the change in the pattern of osteopathic treatment he received and the symptoms he reported when at OHG. While it is undoubtedly true to say that on some days, Mr Boswell could be described as asymptomatic, following such reports, the shoulder condition appeared to deteriorate with substantial pain and restricted movement. This is particularly apparent in the first four months of 2007. In fact, it resulted in Mr Boswell’s GP, Dr Pellizzari, referring Mr Boswell to Mr Bell in March 2007. In our opinion, these events clearly demonstrate an altered severity of Mr Boswell’s shoulder complaint.
66. Although Comcare appeared to place some weight on the fact that Dr Manallack reported that Mr Boswell appeared to be asymptomatic in September 2008 on one occasion, subsequent to that appointment, Dr Manallack also reported that his condition appeared to have suffered some aggravation as a result of home renovating activities. In our opinion, all that demonstrates is that Mr Boswell’s shoulder remained fragile and subject to redevelopment of severe symptoms following some activity. Rather than suggestive of a cessation of the effects of the injury, it underscores the fact that the effects of the injury continued and the symptoms became more pronounced, particularly after reasonably mild activity involving his right shoulder. When the pattern of treatment Mr Boswell received for his right shoulder during 2008 was explained to Mr Elsner, including the fact that the shoulder was reported as remaining about the same on each occasion he visited the osteopath, Mr Elsner agreed that this pattern indicated a continuation of the same symptoms. We are not of the view that any renovation activity or the work involved in moving house caused an aggravation of any underlying condition in Mr Boswell’s shoulder. The evidence does not support such a finding.
67. While Dr Macintosh and Mr Elsner were of the view that Mr Boswell’s shoulder condition was consistent with degenerative change, Dr Macintosh stated that it was consistent with an underlying rotator cuff degenerative condition which was aggravated by his exercise in the gymnasium in 2006. However, neither an x-ray nor an ultrasound of Mr Boswell’s right shoulder in 2004 disclosed any major pathology. His AC joint appeared normal on x-ray as did the glenohumeral joint. The ultrasound revealed his rotator cuff was of good thickness with no evidence of a tear or calcification. Mr Boswell also had a ultrasound on 18 May 2006 following which was recorded:
The rotator cuff tendons are normal in thickness and in echogenicity and there are no peritendinous fluid collection. No tears have been demonstrated.
There is a normal range of movement and no tendon impingement has been demonstrated.
The MRI conducted on 12 April 2007 resulted in the following conclusion:
Subacromial/subdeltoid bursitis and inflammation in the rotator interval consistent with anterosuperior impingement. Low grade tendinopathy of the supraspinatus tendons. No tears. Superior labrum is intact. There is a subtle area of ossification in the anteroinferior labrum suggests prior instability but no discrete tear or chondral defect is identified at this time.
68. Without doubt, the best evidence of Mr Boswell’s shoulder condition is to be obtained from Mr Bell’s operation report dated 16 June 2009 which is set out in full above at [35].
69. In our opinion, the pathology identified by Mr Bell is consistent with the symptoms Mr Boswell claimed to have experienced. His problems were not merely degenerative change. There was damage to the rotator cuff and the AC joint. This pathology is consistent with Mr Boswell’s evidence about the changed symptoms he experienced after the May 2006 incident and the statements recorded in the OHG clinical notes after this time. Therefore, we find that Mr Boswell did suffer a physical injury in the course of his employment on 2 May 2006. Alternatively, we find that Mr Boswell suffered an aggravation of a physical injury or ailment on 2 May 2006 which was contributed to in a material degree by his employment. The effects of that aggravation have not ceased.
70. There was no dispute about the fact that his activity in the gymnasium on that day was properly described as a component of his employment, particularly given the need to maintain his physical fitness for close protection work.
CONCLUSION
71. Having found that Mr Boswell suffered an injury as that term is defined in s 4(1) of the SRC Act and that the effects of the injury or an aggravation of an underlying ailment have not ceased, we find that Comcare is liable to pay the costs of Mr Boswell’s reasonable medical treatment for his right shoulder, including the cost of the surgery conducted by Mr Bell on 16 June 2009. Comcare must also pay any further reasonable medical expenses incurred by Mr Boswell in the course of recovery from his surgery.
72. Comcare must pay Mr Boswell’s costs of this application in an amount agreed by the parties; or in the event that the parties cannot agree, as taxed by the Tribunal.
I certify that the seventy-two [72] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr Egon Fice, Senior Member andDr Roslyn Blakley, Member
Signed: ...................E. Montalto...............................................
Elise Montalto, AssociateDates of Hearing 9 & 10 August 2010
Date of Decision 27 October 2010
Counsel for the Applicant Mr M. Carey
Solicitor for the Applicant Ms A. Goodwin, Arnold Thomas and Becker
Counsel for the Respondent Mr J. Wallace
Solicitor for the Respondent Ms N. Kelidis, Thomsons Lawyers
0
0
0