Bourke and Comcare

[2006] AATA 623

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 623

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/416

GENERAL ADMINISTRATIVE DIVISION		)
Re		ANTHONY BOURKE

Applicant

And COMCARE

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Dr M Denovan, Member

Date14 July 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review

.................Signed...............

Deputy President

CATCHWORDS

COMPENSATION – commonwealth employee injured in workplace in 1987 – liability accepted for whiplash to neck – supraspinatus tendonitis and subacromion impingement of the right shoulder –shoulder injury and 1987 workplace incident coincidental – decision under review affirmed.

Accident Compensation Commission and Others v C E Heath Underwriting & Insurance (Australia) Pty Ltd and Others (1994) 121 ALR 417

REASONS FOR DECISION

14 July 2006 Deputy President P E Hack SC
Dr M Denovan, Member    

INTRODUCTION

1.Mr Anthony Bourke formerly worked at the Australian Taxation Office as an Administrative Officer. As a result of a workplace incident in November 1987 he sustained a whiplash injury to his neck. Comcare accepted liability to pay compensation in respect of that injury in May 1989.

2.Mr Bourke’s account of the incident is that he was walking when a co-worker turned around in front of him and ran into him forcing him backwards into a steel filing fixture. Mr Bourke said that the point of impact was his right shoulder. He said at the time that he had injured his neck and right shoulder as a result of the incident.

3.Mr Bourke also says that from the time of the incident he has suffered pain and weakness in his right arm. On the day of the injury he could not hold anything in his right arm, and he kept dropping things. He could not even load staples into a stapler. He recalls dropping a cup of coffee when he first returned home. He was unable to open a can of beer.

4.Initially Mr Bourke accepted medical opinion that his arm symptoms were due to pathology in his neck. But the symptoms failed to abate following successful treatment for his neck pain in 2001. As a consequence of a right shoulder arthrogram performed in September 2003 he became convinced that his right arm symptoms must have been due to the original incident in November 1987. An operation, described as an arthroscopic acromidplasty, was suggested by his orthopaedic surgeon as a means of improving his condition. 

5.In December 2004 Mr Bourke applied to have his compensation claim from 1987 reopened. He said that the original injury was never repaired and that he wanted Comcare to pay for his operation and follow up treatment. Comcare determined that it was not liable. That determination was affirmed on internal review in April 2005. In June 2005 Mr Bourke made an application to this Tribunal for a review of that determination.

6.In the meantime Mr Bourke had surgery, performed in Thailand in April 2005, for supraspinatus tendonitis and subacromion impingement. That procedure relieved his symptoms of pain and weakness in the right arm. Mr Bourke became even more convinced that his right arm symptoms must have been due to the original incident in November 1987.

ISSUES

7.The issues that we must determine are:

·whether the applicant’s supraspinatus tendonitis and subacromion impingement of the right shoulder resulted from the workplace incident that occurred in November 1987; and,

·whether Mr Bourke’s symptoms of pain and weakness in the right arm resulted from the workplace incident that occurred in November 1987.

8.It is not in issue that if these questions are answered favourably to Mr Bourke Comcare is liable for the payment of medical treatment in relation to the injury and for compensation for incapacity that is the result of that injury.

DID MR BOURKE’S SUPRASPINATUS TENDONITIS AND SUBACROMION IMPINGEMENT OF THE RIGHT SHOULDER RESULT FROM THE WORKPLACE INCIDENT THAT OCCURRED IN NOVEMBER 1987?

9.There is no dispute that Mr Bourke sustained a workplace injury in November 1987. In December 1987 he lodged a claim for compensation in which his injury was described as neck injury causing nerve damage affecting my right arm and hand. Liability was accepted by Comcare on 4 May 1988 in respect to whiplash to neck.

10.Unfortunately the workplace incident in 1987 was not the only time Mr Bourke experienced medical ailments that he feels were causally associated with incidents that occurred at work, or on the way travelling to or from his work.  These include a very heavy weight falling onto his head at work in 1978, a rear end motor vehicle collision in 1997, and exacerbations of neck pain after being allocated increased duties in the mail room in November 2001, and in February 2002.

11.As a result of these incidents a large number of medical reports have been prepared, by a collection of medical specialists, general practitioners, and other therapists. Whilst informative, none of these reports specifically address the issues that we must decide.

12.The report that is most on point is that of orthopaedic surgeon, Dr Peter Boys, dated 25 June 2003. Dr Boys examined Mr Bourke and considered the reports of other medical practitioners and physiotherapists consulted by Mr Bourke. Dr Boys expressed the opinion that Mr Bourke’s shoulder pain was the result of age related degenerative changes in the right rotator cuff. Dr Boys made no connection between the applicant’s right shoulder condition and the workplace incident that occurred in 1987.

13.Dr Boys gave evidence at the hearing. He confirmed that the appropriate diagnosis was supraspinatus tendonitis and subacromion impingement of the right shoulder. Dr Boys said that this condition was most likely degenerative and due to age. He said that the surgical treatment received by Mr Bourke was standard treatment used to relieve degenerative changes. He said that there was unlikely to be any causal connection between the incident in 1987 and the applicant’s shoulder condition. Dr Boys said that, had Mr Burke’s condition been due to the incident in 1987, then he would have expected Mr Bourke to have had symptoms of shoulder pain at the time of the incident and continuously since that time.

14.The problem at the outset here is that there is a considerable volume of contemporaneous evidence relating to the November 1987 incident, none of which makes the slightest suggestion that Mr Bourke injured his shoulder. Nor is there any suggestion that Mr Bourke had any shoulder pain or other symptomatology in the aftermath of the injury.

15.His claim did not include reference to his right shoulder. He said that this was because his supervisor completed the claim, and she refused to make reference to it.

16.In an accident report completed and signed by Mr Bourke on 23 November 1987 (T35) he stated that he hurt his back and neck. He does not mention his shoulder. At the hearing Mr Bourke confirmed that it was he who completed the accident report. He was unable to explain why he made no mention of his shoulder being injured.

17.The first mention of injury to his shoulder at the time of the November 1987 incident appears to be in a letter  to the Administrative Appeals Tribunal, signed by Mr Bourke on 12 May 2004

18.Then there is the contemporaneous medical evidence. This includes multiple medical certificates, mostly from general practitioners Dr P Stephenson and Dr M McPhillips, as well as treatment certificates from physiotherapists, R Smith and S Price. These certificates cover various periods of time from 18 November 1987 to 24 November 1988. The various descriptions of Mr Bourke’s problem include ‘bruised thoracic spine’, ‘whiplash to neck’ ‘whiplash injury to neck’ ‘neck injury’. There is no mention of any shoulder injury or any shoulder pain.

19.In his report dated 10 April 1988, Dr Stephenson stated that Mr Bourke first consulted him on 16 November 1987 after ‘sustaining a whiplash type injury to his neck, giving him pain in the neck and the right arm’. Mr Bourke told us that Dr Stephenson knew about his shoulder injury but could not explain why Dr Stephenson did not mention it.

20.Mr Bourke acknowledges that none of the contemporaneous medical evidence refers to his shoulder being injured. He said that this may have been because at the time it was thought by the medical profession that all of the symptoms in his arm were a result of the whiplash injury he sustained to his neck. Mr Bourke said that he suffered from chronic neck pain from the time of his injury until 2001 when he was treated with a series of injections by Dr M Phillips. After the resolution of his neck pain, Mr Bourke became aware of right shoulder pain. Mr Bourke freely admits that following the immediate aftermath of the 1987 incident he experienced little right shoulder pain. He believes that prior to 2001, his shoulder pain was present, however, would have been masked by the severe pain he experienced in his neck.

21.In response to a question from Mr Bourke, Dr Boys acknowledged that it was possible that Mr Bourke injured his shoulder in 1987 however felt no ongoing pain due to the masking effect of his more severe neck pain.  Dr Boys did not suggest that this was a probable or likely scenario.

22.It remains to mention the treatment in Thailand. Mr Bourke was treated by arthroscopic subacromion decompression, AC resection and posterior capsule release, as an inpatient in Bangkok Phuket hospital between 1 April 2005 and 4 April 2005. Dr S Chaimanee, orthopaedist at the Bangkok Phuket Hospital, provided a brief report in which he stated that Mr Bourke developed this shoulder condition following an accident in 1987, after which time he had right shoulder pain. Mr Bourke concedes that as Dr Chaimanee saw him for the first time in April 2005.  Necessarily this history is based solely on the information provided by Mr Bourke at that time.

23.Whilst it is the experience of courts and tribunals that sustaining an injury, and the onset of incapacity resulting from that injury need not, and commonly does not, occur simultaneously (see, for example Accident Compensation Commission and Others v C E Heath Underwriting & Insurance (Australia) Pty Ltd and Others (1994) 121 ALR 417) there is no evidence that that is the case here. We are bound to assess the matter before us in light of expert medical opinion. There is no medical opinion before the Tribunal that suggests that Mr Bourke’s right shoulder supraspinatus tendonitis and subacromion impingement was associated with the 1987 work place incident. We accept the opinion of Dr Boys is that the condition is degenerative and unrelated to the 1987 work place incident.

DID MR BOURKE’S RIGHT ARM PAIN, NUMBNESS AND WEAKNESS RESULT FROM THE WORKPLACE INCIDENT THAT OCCURRED IN NOVEMBER 1987?

24.Mr Bourke was prepared to call a number of lay witnesses that he said would verify firstly, the workplace incident occurred in 1987, and secondly that he had been suffering from weakness and numbness in his right arm since the time of the incident. It seemed to us that that was not in issue having regard to the wealth of material that was before us. The applicant presented as a person who was giving an honest account of his symptoms at the time of his injury and since.  We accept that Mr Bourke gave an accurate account of what he perceived happened to him at the time of, and following the workplace injury in November 1987. Specifically we accept that he has suffered pain and weakness in his right arm since that time. The issue of what has been causing those symptoms is one that must be decided on medical evidence.

25.Because Mr Bourke’s right arm symptoms did not resolve following the injury in November 1987 he was admitted to Royal Brisbane Hospital for the purpose of investigations to ascertain the cause of his symptoms. In a report dated 23 May 1988, Medical Superintendent Dr C Campbell recounted the history of Mr Bourke’s injury. Dr Campbell recorded that after the collision Mr Bourke developed immediate pain in his mid thoracic spine area, followed by neck pain and brachial neuralgia. Dr Campbell said that after investigations it was thought that the probable cause of Mr Bourke’s symptoms was cervical spondylosis.

26.Dr Boys' evidence to the Tribunal was that he also considered Mr Bourke’s right arm symptoms to be related to cervical spondylosis in his neck. Dr Boys expressed surprise that Mr Bourke experienced relief of his arm symptomatology subsequent to his shoulder surgery, however maintained his position that in spite of this, he did not believe this was indicative of any connection between the 1987 incident and his supraspinatus tendonitis and subacromion impingement of the right shoulder.

27.As we have said, the respondent has accepted liability for a whiplash injury that occurred as a result of the 1987 incident. Cervical spondylosis is a separate and unrelated condition. Thus we conclude that whilst Mr Bourke’s right arm pain, numbness and weakness has a temporal association with the 1987 workplace incident that is coincidental. We are satisfied that the right arm symptoms did not result because of that incident.

DECISION

28.It follows that we affirm the decision under review.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of P E Hack SC and M Denovan

Signed: .....................Signed.............................................
  Leisa Pendle, Associate

Date/s of Hearing    17 February 2006 and 9 June 2006   
Date of Decision  14 July 2006
Applicant appeared in person  
Counsel for the Respondent     Mr C Clark

Solicitor for the Respondent     Ms. R Blake, Dibbs Abbott Stillman Lawyers