Bowden and Telstra Corporation Ltd
[2011] AATA 320
•13 May 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 320
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0221
GENERAL ADMINISTRATIVE DIVISION ) Re Kane Bowden Applicant
And
Telstra Corporation Limited
Respondent
DECISION
Tribunal J W Constance, Deputy President Date13 May 2011
PlaceMelbourne
Decision 1. The reviewable decision of the Respondent made 5 November 2009 is set aside.
2. In substitution for the decision set aside it is decided that:
1) on 29 July 2009 the Applicant suffered an injury to his left shoulder being an aggravation of a pre-existing condition of the shoulder;
2) continuously since 27 August 2009 and at the date of this decision the Applicant has been totally incapacitated for work as a result of the injury;
3) the Respondent is liable to pay compensation to the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury.
3. Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the Respondent shall pay the costs of the proceedings incurred by the Applicant.
.......(sgd J W Constance).......
Deputy President
SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (Cth) - Compensation - Shoulder injury - Aggravation of pre-existing injury arising out of employment - Causal connection between injury and employment - Total incapacitation for work - Decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A(1), 6, 14(1) and 14(3)
Veterans’ Entitlements Act 1986 (Cth)
Military Rehabilitation & Compensation Commission v Roberts [2007] FCA 1
Re Cutajar and Commonwealth of Australia (1985) 8 ALN N76
Repatriation Commission v Law (1980) 47 FLR 57
Repatriation Commission v Law (1980-81)147 CLR 635
Roncevich v Repatriation Commission [2005] HCA 40Tarry v Warringah Shire Council [1974] WCR 1
REASONS FOR DECISION
13 May 2011 J W Constance, Deputy President
INTRODUCTION
1. Since 2007 Mr Bowden has been employed by Telstra.
2. In 2000 Mr Bowden injured his left shoulder. He claims that in 2009 he suffered an aggravation of this injury and that the aggravation arose from his employment. He says that Telstra is liable to compensate him in respect of the aggravation injury in accordance with the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
3. Telstra has decided that it is not liable to compensate Mr Bowden. Mr Bowden has applied to the Tribunal for a review of Telstra’s decision.
4. For the reasons which follow I have decided that Telstra is liable to pay compensation to Mr Bowden in respect of the injury.
EVIDENCE AND FINDINGS OF FACT
5. Unless otherwise indicated the following findings of fact are based on the evidence of Mr Bowden. I am satisfied that he was an honest witness and that he gave his evidence to the best of his recollection. I am satisfied of the facts found on the balance of probabilities.
6. Mr Bowden enlisted in the Australian Army in 1995. In 2000 he injured his left shoulder during boxing training. Despite treatment, including four operations, Mr Bowden suffered ongoing pain and restricted movement in his shoulder and was discharged from the Army as medically unfit in September 2007.
7. In October 2007 Mr Bowden commenced employment by Telstra at premises leased by it in St Kilda Road Melbourne. He was employed as a Technical Specialist which required him to spend most of his time answering telephone enquiries and using a computer. About two months later Ms Ayris, Mr Bowden's partner, was transferred to the St Kilda Road premises. Ms Ayris was employed by Telstra as a Business Specialist and held the position of Team Manager[1]
[1] Exhibit A4.
8. From the time Ms Ayris commenced working at the St Kilda Road premises, she and Mr Bowden usually travelled to and from work together in Ms Ayris’ vehicle, which they regarded as their primary vehicle. By reason of Ms Ayris’ back condition Mr Bowden did most of the driving. Mr Bowden would use Ms Ayris’ pass to enter the carpark and would park the vehicle in the parking space which had been allocated to Ms Ayris, Mr Bowden would then use the lift to travel to the third floor of the building where his work station was located.
9. Occasionally during the two years prior to 29 July 2009 Mr Bowden drove Ms Ayris’ car to work unaccompanied by Ms Ayris. This occurred on 10-15 occasions. With the agreement of Ms Ayris, Mr Bowden used her pass to gain access to the carpark and parked the car in the parking space allocated to her.
10. Ms Ayris gave evidence. I am satisfied that she was an honest witness and I accept her evidence. She said that at the time she was transferred she was told by Ms Tibb, her superior, that she could use a car parking space in the basement of the St Kilda Road premises. She said that this was offered to her as an inducement to continue to work for Telstra as her transfer increased her travelling time to and from work as she suffered a painful back condition.
11. Ms Ayres said that she is aware of Telstra’s policy that a Team Manager may be required to vacate a car space if there are insufficient spaces for shift workers to park their vehicles. She said that this policy has never been applied to her and she has never been asked to vacate the parking space when there was a shortage of spaces for shift workers.[2] She said also that no-one had ever spoken to her about Mr Bowden using the car park allocated for her use.[3]
[2] Exhibit A4; Transcript p.146.
[3] Transcript p.136.
12. Ms Tibb gave evidence. She is an employee of Telstra and was Ms Ayris’ manager from 2005 to 2009. A statement by Ms Tibb dated 9 December 2010 is in evidence and its accuracy was confirmed by her when she gave evidence.[4]
[4] Exhibit R9.
13. In her statement Ms Tibb said:
3. In October 2007, the team which presently is based at 234 St Kilda Road, Southbank, moved from previous premises at Hawthorn. Ms Ayris, who is a Team Leader in the Test and Fulfilment, Service Delivery – Telstra Operations, had a pre-existing back injury, prior to her employment with Telstra. As a result of the office relocation Ms Ayris was required to travel a significantly longer distance from her place of residence to the new offices.
4. As a result of the move of offices and the longer travel time, I offered to both Ms Ayris and our Operations Manager who also had some health issues, the option of using the car space in the basement of the building. Ms Ayris car park was allocated to her team. Those car spaces are allocated to the different teams at the St Kilda Road premises and are for the use of staff within those teams who either start their shifts prior to, and including, 6.00am or who are rostered to finish after, and including, 9.00pm.
5. My expectation, consistent with the policy in respect of the allocation of parking spaces, was that if Ms Ayris was not using the car spot which was allocated to her team, that she would make it available to someone else in her team. Ms Ayris was not authorised to give permission or allocate the car spot designated for the use of her team, to persons outside her team.
14. Mr Sams, a Technical Services Manager employed by Telstra, gave evidence. He confirmed the contents of a statement made by him in July 2010 in relation to this application.[5]
[5] Exhibit R12.
15. In his statement Mr Sams said:
7. Team Managers are not specifically allocated car parking bays but are invited to park in a spot allocated to their team provided a member of their team who commences their shift prior to 6am or finishes after 9pm cannot find a vacant spot available. In those circumstances the Team manager must vacate their spot for the use of that team member.
8. When Telstra first moved into the building in 2007 I understand that the Applicant’s partner, Ms Sally Ayris, Team Manager B.I.G. expressed concern to her then manager, Ms Christine Tibb regarding the additional travel time and the later finish times she was experiencing at the time. I understand that Ms Tibb invited Ms Ayris to park in a bay allocated to her team to alleviate the pressure of the additional travel at that time. No individual car park bay was allocated for the exclusive use of Ms Ayris. Due to Ms Ayris’ ongoing and debilitating back problems Ms Tibb did not place on Ms Ayris the expectation that she would need to vacate the bay if it was required by a member of her team. At no stage did Ms Tibb advise Ms Ayris that this was a permanent arrangement, or that she was able to allow others to park in this bay other than members if her own team.
9. It should also be noted that Team Managers do not “own” their parking bays and do not have the right to allow use of the bays allocated to their individual team to any one else other then the members of their own team [sic].
10. The Applicant was not a member of Ms Ayris team and as such was not authorised to park in the bay allocated to Ms Ayris’ team.
16. When asked about Telstra’s parking policy Mr Sams said:
…we had a very, very tight policy on car park usage that we reinforce consistently ever since we moved into that building, so the – the awareness level of when it was appropriate to park in the – in the parking environment was very, very strong…the process that we had for reporting of sick leave for a team manager, their first port of call was to call me and advise me that they wouldn’t be coming in for the day, and then they would call their – their peer, who worked in that same work stream, and make them aware that the- that they weren’t coming into work, and then the opportunity was there for a – a late-shift person to utilise that car space.[6]
[6] Transcript pp. 264 and 265.
17. I am satisfied that the arrangement Ms Tibb entered into with Ms Ayris allowed her exclusive use of a car space and that this arrangement continued unchanged until and including 29 July 2009. In reaching this conclusion I have taken into account that despite Mr Bowden using the car space on 10-15 occasions when Ms Ayris was not at work, no-one attempted to allocate it to a worker other than Mr Bowden. I cannot accept Mr Sams’ assertion that there was a clear policy as described by him and which was strictly enforced from the time Telstra moved into the St Kida Road premises. Copies of emails tendered by Telstra [7] show that advice as to parking policy was being issued to employees in 2008. An email from a Team manager, Mr Soundy, to his staff in May 2008 advised that “[t]here still seems to be a lot of confusion in regards to the appropriate usage of the car park.” [8]
[7] Exhibits R10 and R11.
[8] Exhibit R11.
18. I am satisfied that the arrangement between Ms Ayris and Telstra in relation to the parking space entitled her to permit Mr Bowden to park her vehicle in that space even if she was not accompanying Mr Bowden at the time. I find that Ms Ayris agreed to Mr Bowden using the space to park her vehicle (including at times she did not accompany him) and that she provided him with the means of accessing the car park. I accept Mr Bowden's evidence that at the time he parked the vehicle in the space on 29 July 2009 he did not believe he was doing anything contrary to his employer’s policies as he believed that Ms Ayris’ had an agreement with Telstra that the general policy did not apply to her.
19. In cross-examination Mr Bowden was asked:
But were you aware, at any time up to and including the date of the incident with the garbage bin, that it was against the requirements of your employer that you parked Ms Ayris’ vehicle there in that car park when she was not with you?
He replied:
No, I was not told that. [9]
[9] Transcript pp. 56 and 57.
Mr Bowden said also that Ms Ayris had given him permission to use her pass to gain entry to the car park with the vehicle and to park the vehicle in the bay allocated to her.
I accept the evidence set out in this paragraph.
20. In accordance with a Parking Space Licence the building owner granted Telstra and those authorised by it to use the parking space. The Licence obliged the Grantor “to keep and maintain in reasonable condition the surface and markings of each Space and the access to such spaces…” [10]
[10] Exhibit R13, [5].
21. On 29 July 2009 Mr Bowden, unaccompanied by Ms Ayris, drove Ms Ayris’ vehicle to work. He arrived at the premises about 6.45 am as his normal starting time was 7.00 am. As he drove into the carpark he observed that the parking space allocated for Ms Ayris’ use was occupied by an industrial waste bin. Mr Bowden got out of the car intending to move the bin to a spot clear of the parking space. He checked the bin and ascertained that it was empty. He then pushed it with both hands, with his arms partly outstretched in front of him. As he pushed the bin it swerved away from the direction he intended to push it. He again pushed the bin in the direction he wished it to travel. As he did so he felt “…a sudden and severe increase in my left shoulder pain.” [11] He pushed the bin with his right arm until it was clear of the parking space and not obstructing traffic within the carpark. Then he parked the vehicle in the parking space using his right arm only as his left shoulder was too painful to allow him to use both arms.
[11] Exhibit A1, [17].
22. On reaching the third floor Mr Bowden applied an icepack to his shoulder and gave himself an injection of morphine to reduce the pain. At the request of his supervisor he attempted to do his work but by 11.30 am the pain was such that he was unable to continue. He drove himself home using his right arm only.
23. On the same day he consulted his general practitioner, Dr Dunn, who certified that he was unfit for work. Mr Bowden did not return to work until 24 August 2009.
24. On his return to work Mr Bowden had a sling on his left arm as it was too painful to allow his arm to move freely. He was restricted to light duties such as filing, photocopying, coaching other staff and filling in paperwork. He was unable to carry out his core duties which required the use of a telephone and a computer.[12]
[12] Transcript pp. 33,34 and 35.
25. On 25 August 2009 Mr Bowden was assessed by an occupational therapist as part of his return-to-work program. At the request of the therapist, Mr Bowden attempted to demonstrate the range of movement of his shoulder. This increased the pain in his shoulder to such an extent that he was unable to continue with his work on that day.[13]
[13] Transcript p.34.
26. On 26 August 2009 Mr Bowden was examined by Dr Schutz, Consultant Surgeon, on behalf of Telstra. During the examination Mr Bowden felt severe pain in his shoulder. The following day Mr Bowden consulted his general practitioner because of the continuing pain in his shoulder. Mr Bowden has not returned to work since 26 August 2009.
27. On 31 August 2009 Mr Bowden attended the Knox Private Hospital where he was treated for severe pain. He received injections for pain relief over a period of about six hours. He said that the pain in his shoulder was so severe on this occasion he felt as if he was having a seizure.[14]
[14] Transcript pp. 36 and 37.
28. After Mr Bowden ceased work he continued to consult Dr Dunn and Dr De Graaff, a Senior Rehabilitation Physician. He received two further treatments of hydrodilatation (in September 2009 and in October 2009) but these were ineffective. Mr Bowden is continuing to receive specialist physiotherapy treatment with the aim of being able to undergo a shoulder replacement. He now takes more medication for pain relief than he did prior to 29 July 2009.
29. Mr Bowden gave evidence that he has not been able to return to work because of the effects of the pain and “the reduced range of motion which prevents me from moving as freely as I need on keyboards and mouse and things like that but as far as the medications go, in the beginning, yes, there were some nasty side effects but I have them under control now.” [15]
[15] Transcript pp. 38 and 39.
MEDICAL EVIDENCE
Report of Dr Boothby, Occupational Physician[16]
[16] Exhibit R1, p.91.
30. On 2 October 2007 Dr Boothby conducted a Fitness for Duties Assessment of Mr Bowden on behalf of Telstra.
31. Dr Boothby reported:
On the basis of my assessment I consider he would require the following physical work restrictions:
·No lifting weights greater than 5 kgs and no lifting above chest height
·No lifting any weights at reach and no work above shoulder height
He is, however, fit for sedentary, desk and office based work provided that he has an appropriate ergonomic setup of his workstation.
Clinical notes of Dr Dunn, General Practitioner [17]
[17] Exhibit R3.
32. Dr Dunn’s clinical notes for the period January 2007 to May 2010 indicate that Mr Bowden consulted Dr Dunn frequently in that time. He has continued to consult Dr Dunn.
33. It is clear from Dr Dunn’s records that Mr Bowden was suffering considerable pain in his shoulder during the weeks prior to the incident with the garbage bin.
34. On 21 July 2009 it is recorded:
Has overdone activity c the L shoulder and pain has worsened [18]
[18] Exhibit R3, p. 9.
35. On 24 July 2009 it is recorded:
has had acute shoulder exacerbation for the last few weeks. has been having morphine injections more frequently. in the last few weeks. permit is for 1 injection a week
advised if needs higher dose for over a month, a new permit will need to be rquested also requesting another script for valium. says having 4 each night, should have 25 plus left. declined this [sic].[19]
[19] Exhibit R3, p. 9.
36. On 29 July 2009 it is recorded:
Had to move an industrial bin this morning that was put in his car space and as a result he has aggravated his L shoulder
Has little movement at this stage as he has severe pain and muscle spasm. WC cert 1/52.[20]
[20] Exhibit R3, p. 9.
37. The entries after 29 July 2009 show that Mr Bowden continued to complain of severe pain and that Dr Dunn continued to prescribe medication for pain relief.
Evidence of Dr De Graaff, Senior Rehabilitation Physician
38. Dr De Graaff treated Mr Bowden in July 2006 when he was still in the Army and has continued to treat him after his discharge.
39. In a report dated 14 July 2008 [21] Dr De Graaff stated that Mr Bowden “clearly has chronic severe disabling pain which has not responded to non narcotic analgesia.” He repeated this opinion after assessing Mr Bowden in March 2009.[22]
[21] Exhibit R4.
[22] Exhibit R7.
40. Dr De Graaff gave evidence. In his opinion, when pushing the bin Mr Bowden suffered an injury to his shoulder by stressing the ligaments, muscles and tissues around the shoulder and that the effort in moving the bin has led to a decline in his condition. In his view there was likely to have been an inflammation response to this injury. He said that Mr Bowden's condition was different from 29 July 2009 onwards in that he required analgesic medication on a daily basis even when he was engaged in minimal activity.
41. When questioned as to Mr Bowden's increasing use of the opiate medication oxycontin in the 12 months prior to July 2009, Dr De Graaff said that this increase would have been a result of an increase in the level of pain or a developing tolerance to the medication. In his opinion it probably was a combination of both factors.
Evidence of Mr Schofield, Specialist Orthopaedic Surgeon
42. Mr Schofield examined Mr Bowden in November 2010 at the request of his solicitors. Mr Schofield gave evidence and provided a report dated 3 December 2010.[23]
[23] Exhibit A5.
43. In his report Mr Schofield stated that active movement of Mr Bowden's left shoulder was “grossly restricted”.[24] In his opinion the episodes which had increased Mr Bowden's shoulder symptoms “indicate that there was a gradual worsening of [his] condition as a result of the previous injuries affecting the glenohumeral joint with subsequent post-traumatic arthritis causing progressive symptoms.” [25]
[24] Exhibit A5 p.2.
[25] Exhibit A5 p.4.
44. Mr Schofield expressed the following opinions:
It is well known that any arthritic joint where there is weight bearing involved can become acutely aggravated by even minor episodes of stress which may result in cartilaginous avulsion, rupture of cysts or acute aggravation of rough surfaces.
Whatever the reason in this case, it is clear that there has been an acute aggravation as a result of the injury whilst working with Telstra in the setting of previous chronic disease in the joint.[26]
[26] Exhibit A5 p.4.
45. At the time the report was provided Mr Schofield was of the opinion that that Mr Bowden's condition had deteriorated since 28 August 2009 and that at that time he had no capacity for employment. In his view, but for the incident on 29 July 2009 Mr Bowden would have been able to continue his sedentary work with Telstra for the foreseeable future.[27]
[27] Exhibit A5 p.5.
46. In giving evidence Mr Schofield maintained the opinions recorded above. He did not agree that the effects of the aggravation would have lasted for only 6-12 weeks. In his view the continuing increased level of pain was probably a result of damage to the capsule of the shoulder and was likely to have an on-going effect. He said that even very mild pressure may have been sufficient to cause some disruption to the articular surface.
Evidence of Dr Schutz, Consultant Surgeon
47. Mr Bowden was assessed by Dr Schutz on 26 August 2009, two days after Mr Bowden returned to work. Mr Bowden was assessed at the request of Telstra. Dr Schutz provided two reports and gave evidence.
48. On 28 August 2009 Dr Schutz reported as follows:
It appears that there may have been a strain with a transient aggravation with an increase in symptoms in an already grossly degenerative and symptomatic left shoulder. The history given is of increases in symptoms associated with very minor strains to the shoulder – and he described several minor non work related incidents which have caused increased symptoms. Although it seems highly unlikely that moving the bin caused even a substantial strain, given the history, it is possible that even a minimal strain in moving an empty bin could in this particular cause have led to a transient increase in symptoms (aggravation).
Any aggravation would be anticipated to recover in 6-12 weeks even with the gross pathology of the shoulder as evident. By then it could be reasonably considered that the left shoulder condition was as it would have been had the 29.7.2009 incident not occurred.[28]
[28] Exhibit R1, p.145.
49. As part of his assessment of Mr Bowden, Dr Schutz measured the degrees of movement in both shoulders. The results showed that Mr Bowden had significant restrictions in all movements of his left shoulder.[29] In his report of 1 September 2009 Dr Schutz noted that he did not consider that Mr Bowden was exaggerating his symptoms.[30]
[29] Exhibit R1, p.143.
[30] Exhibit R1, p.159.
50. When he gave evidence Dr Schutz said that having reviewed all the material before him he was of the opinion that Mr Bowden had suffered a simple transient aggravation of 6-12 weeks duration. In his opinion Mr Bowden has a progressively deteriorating shoulder which would inevitably decline causing increased episodes of pain.
51. Dr Schutz stated that he did not believe Mr Bowden was feigning any of his symptoms. In his view it was a coincidence that the worsening of Mr Bowden's condition occurred at the same time as the incident involving the rubbish bin.
Evidence of Mr Shannon, Orthopaedic Surgeon
52. Mr Shannon examined Mr Bowden in December 2010 at the request of the solicitors for Telstra. He provided a report dated 23 December 2010[31] and gave evidence.
[31] Exhibit R14.
53. In his report Mr Shannon expressed the opinion that Mr Bowden suffers from a chronic pain syndrome which commenced whilst he was a member of the Army. In his view the incident of 29 July 2009 was “purely a temporary aggravation of the chronic pain syndrome” [32] and that there was no ascertainable evidence ”to suggest that there has been any specific change in his shoulder condition as a result of the incident.”[33] However later in the same report Mr Shannon expressed the opinion that Mr Bowden sustained “aggravation of pre-existing osteoarthritis and capsulitis of his left shoulder and aggravation of a pre-existing narcotic dependent chronic pain syndrome” (emphasis added).[34] Mr Shannon added that Mr Bowden had suffered a temporary deterioration in function of his shoulder and temporary incapacity.
[32] Exhibit R14, p.6.
[33] Exhibit R14, p.6.
[34] Exhibit 14, p.6.
54. When he gave evidence Mr Shannon confirmed the views he expressed in his report. He said that in his opinion, irrespective of the incident on 29 July 2009, Mr Bowden was probably coming to the end of his employment as his problem was not his shoulder but his pain. He agreed that Mr Bowden has an ongoing incapacity for work. He was unable to say when, in his opinion, Mr Bowden would, or would have, become incapacitated for work had the incident on 29 July 2009 not occurred.
Reports of Mr Barwood, Shoulder and Elbow Orthopaedic Surgeon
55. Mr Barwood was not called to give evidence. His notes of the operative procedure carried out on 22 September 2006 [35] give a detailed account of the procedure and indicate that the abnormalities in Mr Bowden's shoulder were extensive. The diagnosis provided by Mr Barwood at the time was chondromalacia Grade 2-3 of the left shoulder with bursitis and impingement.
[35] Exhibit R1, p.77.
56. In a report dated 3 December 2009, written to Dr Dunn, Mr Barwood stated:
I have explained to Kane that I believe the exacerbation of his pain is more likely to be directly related to his underlying degenerative condition rather than a new or significant injury caused at his new workplace. I therefore feel it is reasonable for the ongoing treatment of his shoulder to be related to his military activity rather than to his new workplace at Telstra. I have had a lengthy discussion with him regarding this and my reasons for this opinion. [36]
[36] Exhibit R2, p.1.
LEGISLATION
57. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
58. Subsection 14(3) provides:
Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
59. Section 5A(1) provides:
(1) In this Act:
"injury" means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
ISSUES FOR DETERMINATION
60. The following issues arise for determination.
1)Did Mr Bowden suffer an injury on 29 July 2009, being an aggravation of a previous injury, and if so, what was the nature of that aggravation?
2)If the answer to (1) above is “yes”, was that aggravation an aggravation “that arose out of” Mr Bowden's employment by Telstra?
3)If the answer to (2) above is “no”, was the aggravation an aggravation “that arose …… in the course of” Mr Bowden's employment by Telstra?
4)If the answer to (2) or (3) is “yes”, does Mr Bowden continue to suffer from the effects of the aggravation?
5)If the answer to (2) or (3) is “yes”, has the aggravation prevented Mr Bowden attending to his employment and if so, for what period or periods?
REASONING
Did Mr Bowden suffer an injury on 29 July 2009, being an aggravation of a previous injury, and if so, what was the nature of that aggravation?
61. There is no dispute that Mr Bowden suffered a serious injury to his left shoulder in 2000 and that he continues to suffer serious consequences of that injury.
62. I am satisfied that Mr Bowden was an honest witness who gave his evidence to the best of his recollection. I am satisfied that the incident involving the garbage bin occurred on 29 July 2009 in the manner he described.
63. I am satisfied also that on that occasion Mr Bowden suffered an aggravation of his previous shoulder injury by stressing the ligaments, muscles and tissues around his shoulder when he pushed the bin. I find that on the balance of probabilities this stress caused an inflammation response in his shoulder and aggravated the previous injury by increasing the pain suffered by Mr Bowden and further restricting the movement of his shoulder.
64. In reaching this conclusion I have preferred the evidence of Dr De Graaff and Mr Schofield to that of the Mr Shannon. I find the opinions of Dr De Graaff and Mr Schofield persuasive as they are consistent with Mr Bowden's evidence of increasing pain and inability to use his shoulder in the same way as he had prior to the incident. I note that Dr Schutz also is of the view that Mr Bowden may have suffered a strain of his shoulder.
65. I am not persuaded by the opinions of Mr Shannon as I found him to be inconsistent in his evidence. Initially he stated that the incident with the bin was “purely a temporary aggravation of the chronic pain syndrome” [37], but later stated that in addition there was an “aggravation of pre-existing osteoarthritis and capsulitis …” [38] Further, there is insufficient evidence to satisfy me that Mr Shannon has particular expertise in diagnosing the condition of chronic pain syndrome.
[37] Exhibit R14, p.6.
[38] Exhibit R14, p.6.
66. Having operated on Mr Bowden in 2006, Mr Barwood’s opinion must be considered carefully. His opinion, as advised to Dr Dunn in December 2009, was that the increase in pain suffered by Mr Bowden was more likely to be directly related to his underlying degenerative condition rather than a new or significant injury at his workplace. However Mr Barwood has not assessed Mr Bowden since 2009 and did not give evidence. I do not have the benefit of his reasons for forming the opinion he has expressed.
Was the aggravation an aggravation “that arose out of” Mr Bowden’s employment by Telstra?
67. It was argued on behalf of Telstra that when Mr Bowden moved the bin in the carpark he was engaged in a journey to work and had not reached his place of work, said to be on the third floor of the building. I was referred to the following definition of place of work in section 4 of the Act:
place of work, in relation to an employee, includes any place at which the employee is required to attend for the purpose of carrying out the duties of his or her employment.
68. I was referred to a number of authorities. Many of these traced the history of the interpretation of the requirement that an injury arise out of, or in the course of, employment. However it should be noted that many of the authorities deal with the question of whether an injury arose “in the course of” the employment, rather than with the issue of whether the injury arose “out of” the employment.
69. It should be noted also that the expression “place of work” appears in section 6 of the Act, a section which sets out several situations in which an injury “shall be treated” [emphasis added] as having arisen out of, or in the course of, employment. The section provides that the inclusion of these situations does not limit the meaning of the words used in the definition of “injury” in section 5A to which I have already referred.
70. It is clear from the use in section 5A of the disjunctive “or” in the expression “an aggravation that arose out of, or in the course of” , that the section has a broad meaning and that “out of” and “in the course of” have distinct meanings.[39]
[39] See Roncevich v Repatriation Commission [2005] HCA 40 in which the High Court of Australia dealt with a similar provision.
71. In Roncevich v Repatriation Commission[40] the High Court of Australia considered whether an injury “arose out of, or was attributable to, any defence service” under the Veterans’ Entitlements Act 1986 (Cth). The Court said:
… whether an event arises in the course of an activity, or as here, out of ‘an activity’, depends on such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must, however, be a causal and not merely temporal one.
[40] [2005] HCA 40.
72. The Full Court of the Federal Court considered the phrase “has arisen out of” in the Repatriation Act 1920 (Cth) in Repatriation Commission v Law: [41]
… the words "arising out of" require a consequential relationship of the incapacity or death with the service out of which it is said to arise. It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be "immediate", "direct" or "proximate" or by saying it connotes a "real", "sole" or "dominant" cause.
The Act does not say death which is "caused by" or "results from" his war service —phrases which might connote a proximate causal relationship. The expression "arisen out of" is satisfied if some less proximate causal relationship is established. Of course, a suggested relationship which is fanciful is not sufficient; and a suggested relationship may be so tenuous as to preclude its consideration as answering the description "arising out of".
[41] (1980) 47 FLR 57, 68.
73. On appeal to the High Court the decision of the Full Court was affirmed.[42] The passage quoted in the previous paragraph was quoted with approval.
[42] Repatriation Commission v Law (1980-81)147 CLR 635, 636.
74. In Military Rehabilitation & Compensation Commission v Roberts [43] the Federal Court said in relation to “arising out of” :
Counsel for the applicant ably made a respectable argument as to the meaning of the phrase ‘injury … arising out of … the employee’s employment’. In the view I take it is neither necessary nor desirable that I resolve that question to finality. I am however inclined, on a tentative basis, to think that the requirement asserted by the applicant that the employee must show some elevation of the risk of the injury sustained, which elevation must result from the employment, is mistaken and that it is enough that there can be shown, as a matter of common sense, some substantial link or connection with the employment which is causal and not merely temporal…
[43] [2007] FCA 1 at [55].
75. From these decisions it appears to me that the following principles are to be applied in this application:
1)there must be shown to be a causal connection between the injury and the employment;
2)the expression “arose out of” is satisfied by a less proximate causal relationship than expressions such as “caused by” or “results from”, but does not include a relationship that is fanciful.
I do not suggest that these principles are necessarily of general application. They are the principles I propose to apply in this application.
76. On the facts I have found I am satisfied that there is a sufficient causal connection between the injury suffered by Mr Bowden on 29 July 2009 and his employment by Telstra. Consequently I find that the injury arose out of Mr Bowden's employment.
77. The following circumstances have caused me to come to this conclusion:
1)Mr Bowden was injured while removing the bin from an area which was licensed to his employer for use as a parking space;
2)Telstra issued policies controlling the use of the parking spaces by its employees;
3)under the terms of a licence, the building owner was obliged to maintain access to the car space;
4)as the bin was occupying a parking space let to Telstra, it, or someone on its behalf, was entitled to remove the bin from the area it occupied;
5)Mr Bowden was entitled to park Ms Ayris’ vehicle in the parking space occupied by the bin;
6)at the time he was injured Mr Bowden was moving the bin to enable him to park the vehicle he was driving for the purpose of attending to perform the duties of his employment;
7)at the time he was injured Mr Bowden had the consent of Ms Ayris to use the parking space provided for her use by Telstra.
These circumstances provide a causal connection which is more than tenuous or fanciful.
78. Counsel for both parties presented detailed arguments as to whether Mr Bowden was at his place of work at the time he was injured in the car park. However this question only becomes relevant if one seeks to apply the provisions of section 6 of the Act. As I have decided that the aggravation alleged by Mr Bowden arose out of his employment within the meaning of section 5A, it is unnecessary that I consider the application of section 6.
79. Detailed evidence was placed before the Tribunal relating to Mr Bowden's alleged failure to comply with his employer’s directions as to his use of the car space. I have found that on the day he was injured Mr Bowden’s actions were consistent with the agreement between Ms Ayris and Telstra. However even if Mr Bowden's conduct had been in breach of Telstra’s policies, it would not have followed that his injury did not arise out of his employment. An injury may arise out of employment notwithstanding that the conduct which caused the injury was outside the scope of the employee’s duties. An injury suffered in a fight between two employees has been held to have arisen out of employment.[44]
[44] Re Cutajar and Commonwealth of Australia (1985) 8 ALN N76; Tarry v Warringah Shire Council [1974] WCR 1.
80. The Act provides that compensation is not payable in certain circumstances involving misconduct.[45] However there has been no suggestion that this provision is applicable in this matter. It is clear that the provision does not apply.
[45] Safety, Rehabilitation and Compensation Act 1988 (Cth) s14(3).
Does Mr Bowden continue to suffer from the effects of the aggravation?
81. I am satisfied on the balance of probabilities that, as a result of the incident of 29 July 2009, Mr Bowden suffers increased pain and increased stiffness in his left shoulder. I am satisfied that he has suffered these effects continuously since 29 July 2009 and that he suffers them at the date of this decision.
82. I accept the evidence of Dr De Graaff and Mr Schofield that the aggravation of the condition of Mr Bowden's shoulder would have lasted more than 6-12 weeks and that its effects were continuing when each of them last assessed Mr Bowden (March 2009 and November 2010 respectively).
83. For the reasons already stated I prefer the evidence referred to in the preceding paragraph to that of Mr Shannon and Mr Barwood.
Has the aggravation prevented Mr Bowden attending his employment and, if so, for what period or periods?
84. I accept the evidence of Mr Bowden that since 27 August 2009 he has been unable to return to his work by reason of the effects of the pain and “the reduced range of motion which prevents me from moving as freely as I need on keyboards and mouse and things…”[46] I have taken into account that Mr Bowden continued to work with a substantial injury to his shoulder in the Army and with Telstra. He impressed me as a person who was anxious to work and who would continue working if he was able to do so.I have taken into account that he continued to work with this disability for approximately 9 years before he was injured on 29 July 2009. I accept that his pain increased after July 2009 and that there was a substantial increase in the level of medication required to control the pain.
[46] Transcript pp.38 and 39.
85. I have relied on the evidence of Mr Schofield in support of Mr Bowden's evidence that he has been unable to return to his pre-injury employment. Mr Schofield is of the opinion that when he assessed Mr Bowden in November 2010 Mr Bowden had no capacity for employment. He said also that but for the incident on 29 July 2009 Mr Bowden would have been able to continue his sedentary work with Telstra for the foreseeable future. I note also that Mr Shannon was of the view that Mr Bowden has no capacity for employment at present, although he did not agree with Mr Schofield as to the reason for this.
86. I have taken into account also that Mr Bowden's evidence that he is restricted in the movement of his shoulder is consistent with the measurements taken by Dr Schutz, to which I have already referred.
87. I am satisfied that since 27 August 2009 Mr Bowden has been totally incapacitated for work. I am satisfied that this incapacity has been continuous since that time and that Mr Bowden is totally incapacitated for work at the date of this decision.
DECISION
88. The reviewable decision of the Respondent made 5 November 2009 is set aside.
89. In substitution for the decision set aside it is decided that:
1)on 29 July 2009 the Applicant suffered an injury to his left shoulder being an aggravation of a pre-existing condition of the shoulder;
2)continuously since 27 August 2009 and at the date of this decision the Applicant has been totally incapacitated for work as a result of the injury;
3)the Respondent is liable to pay compensation to the Applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of the injury.
90. Within 14 days of the date of this decision each party may apply to the Tribunal for directions in relation to costs. Should such an application not be made the Respondent shall pay the costs of the proceedings incurred by the Applicant.
I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of
J W Constance, Deputy PresidentSigned: ...(sgd K Peterson)...........
K. Peterson, Associate
Dates of Hearing 7, 8 and 9 February 2011; 18 March 2011
Date of Decision 13 May 2011
Counsel for the Applicant Mr M Carey
Solicitor for the Applicant Arnold Thomas & Becker
Counsel for the Respondent Mr J LencznerSolicitor for the Respondent Sparke Helmore
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