Chowdhury and Linfox Australia Pty Ltd (Compensation)

Chowdhury and Linfox Australia Pty Ltd (Compensation) [2015] AATA 657 (31 August 2015)

Division

GENERAL DIVISION

File Number

2014/2175

Re

Talat Khandaker Chowdhury

APPLICANT

And

Linfox Australia Pty Ltd

RESPONDENT

DECISION

Tribunal
Regina Perton, Member

Date 31 August 2015

Place Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Regina Perton, Member
WORKERS’ COMPENSATION – whether shoulder condition arose out of or in the course of employment – whether condition aggravated by employment – right shoulder condition – decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16 and 19
REASONS FOR DECISION
Regina Perton, Member
31 August 2015

Talat Chowdhury has worked for Linfox Australia Pty Ltd (Linfox) for several years as an administration officer. Ms Chowdhury lodged a claim for compensation with Linfox on 15 November 2013 for an injury described as a full thickness supraspinatus tear (right arm)(i.e. muscle torn).
On 13 January 2014 Linfox issued a determination denying liability for Ms Chowdhury’s injury. On 27 February 2014 a reconsideration officer affirmed the determination. On 30 April 2014 Ms Chowdhury lodged an application for review with this Tribunal.
Ms Chowdhury submits that her right upper limb condition arose out of or in the course of her employment and/or aggravated by the nature of her work with Linfox. Linfox disagrees.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), as it was at the relevant date, provides:
Compensation for injuries
(1) 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
...
Section 5A of the Act states:
Definition of injury
(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.
…
Section 5B of the Act states:
Definition of disease
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material
Section 16 of the Act provides:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
Section 19 of the Act provides for compensation where an employee is unable to work her usual hours due to incapacity as a result of the workplace injury.
DID MS CHOWDURY’S RIGHT SHOULDER CONDITION ARISE OUT OF, OR IN THE COURSE OF, HER EMPLOYMENT WITH LINFOX?
Linfox accepts that Ms Chowdhury suffers from pain in her right shoulder. X-rays and an ultrasound taken in late 2013 indicate a right shoulder supraspinatus tear.
Ms Chowdhury was born in Bangladesh and educated to Year 12. She moved to Australia in 1986 and has been in the workforce since then. Ms Chowdhury was a machine operator for four years, in quality control for Ford for seven years and has worked in accounts and office work since 1997 on a full-time basis. She has worked at Linfox since October 2008.
In her claim for compensation filled out on 15 November 2013, Ms Chowdhury stated that the injury for which she was claiming compensation was:
Full thickness supraspinatus tear (Right arm) (i.e. Muscle torn).
Ms Chowdhury attached certificates from her general practitioner, physiotherapist and a referral from her general practitioner to Northern Hospital for orthopaedic treatment. She stated that the part of her body that was injured was:
Right arm (movement problem, lift problem, computer operating problem, driving problem).
In response to the prompt question asking when she was injured she stated it was on 16 August 2013 at 10 am and subsequently on 14 October 2013, 24 October 2013 and 4 November 2013. Ms Chowdhury stated she first sought treatment from her doctor, Dr Clodagh Conway, on 19 October 2013. She stated that she has been referred to an orthopaedic specialist and a physiotherapist and had received treatment from both. Ms Chowdhury stated that she has never had any similar symptom, injury or illness before, work-related or otherwise.
Ms Chowdhury stated that she had been at her desk working on the computer when she was injured. To the prompt question asking what were the conditions at the location where her injury happened, Ms Chowdhury stated:
During usual work, my work is always under pressure and never given 10 minutes off for each hour worked which is the regulation for those who work on computer job for 8 hours every day.
Her response to a prompt question asking what she was doing at the time of the injury was:
During computer operation using mouse and typing on keyboard (using my right arm/finger) but left hand didn’t hurt while typing on keyboard.
Ms Chowdhury stated that she had reported her pain to her supervisor, Ms Joyce Phillips, on three earlier occasions verbally.
In completing her portion of the form on 21 November 2013, Ms Phillips indicated that Ms Chowdhury had first notified Linfox of the injury on 24 October 2013. Ms Phillips stated that the injury had not been reported in August 2013 as suggested by Ms Chowdhury. Ms Phillips has been Ms Chowdhury’s supervisor since Ms Chowdhury joined Linfox.
Ms Chowdhury produced medical certificates signed by Dr Conway which stated that Ms Chowdhury was unfit for work between 15 October 2013 and 18 October 2013; and between 24 October 2013 and 31 October 2013. No particular symptom or injury was identified in the three certificates. Radiological reports following an ultrasound and x-ray dated 19 October 2013 were presented. Also provided was a copy of a GP Fax Referral for Ambulatory Care Outpatient Department dated 24 October 2013 with the presenting problem being full thickness tear supraspinatus tendon 11 mm. In the referral Dr Conway stated that:
Talat has been suffering for the last few weeks with shoulder pain
She had u/s and this confirms supraspinatus tear
I feel she needs to link with physio and rest her arm
I also feel this could be related to her work – she is considering a work cover claim
Dr Conway provided Ms Chowdhury with a Certificate of Capacity dated 4 November 2013 stating that Ms Chowdhury was unfit for work from 25 October 2013 to 22 November 2013 due to a full thickness supraspinatus tear.
On 4 November 2013 Ms Chowdhury provided a written injury report in which she stated:
…
I would like to report my work related injury as follows:
I felt pain in my right arm muscle for last 8 weeks which I verbally report (sic) to my immediate boss Team Leader Joyce Phillips on and off during the 8 weeks. But still I had to continue my work. My nature of job is full time (8 hours) computer operation. My job is stressful due to high volume of work load.
…My GP and Physiotherapist both told me that the treatment may take a couple of weeks or months to recover.
…
Today on 04/11/2013 I attended my work and reported that I’m unable to work due (sic) continued severe muscle pain in my right arm and thus left home after recording the injury history/summary in the work cover injury book.
In a statement addressed to various persons at Linfox dated 15 November 2011, the date of her claim for compensation, Ms Chowdhury stated:
I would like to inform you all that I’m still have been suffering from work related injury. My condition hasn’t improved yet, continuous treatment is still on going including the following treatments:
1.    Physiotherapy
2.    Orthopadic (sic)
3.    Heat pack at home (three times a day)
4.    Physio at home as advised by the Physiotherapist (three times a day).
As I don’t have private Health cover insurance, therefore I need support of workcover insurance so that I can continue my treatments without fail. It is very important for the insurance company and LINFOX to support my genuine claim so that I can return to work quicker.
I have sincere intention to return earlier to work but I’m undone due to my present condition. I have no choice but to seek for workcover claim for genuine reason and for quicker return to work. As you all know I’m a hard working and sincere person, I need the support of all my colleagues and bosses of the company considering my contribution to the company and length of my service at LINFOX.
…
On 4 November 2013 Dr Conway provided a Certificate of Capacity stating that Ms Chowdhury was unfit for work until 22 November 2013. On 20 November 2013 Dr Ahmed Tilly provided a Certificate of Capacity stating that Ms Chowdhury was unfit for work from 25 November to 13 December 2013 on the basis of the Right supraspinatus tear describing the condition as a Work related injury.
In a document entitled Statement of Events and dated 21 November 2013, Ms Phillips recorded as follows:
Talat Chowdhury claims to have mentioned that her arm was sore throughout the past 8 weeks; I do not have any recollection of this. I am however aware that she on many occasions mentions aches and pains and leaves it at that.
The first time I was aware that her arm was an issue though was on the 15/10/2013 when Talat called in sick to work and said she was unable to attend, at no point did she claim that it was sore due to a work-related injury. Talat was then absent for the remainder of that week.
Talat came back into to work on 21/10/2013 and claimed that her arm was still sore continued on with her regular duties, again no mention that the soreness was due to work.
On 24/10/2013 Talat attended a doctor’s appointment at which point on her return to the office handed over a letter from her GP outlining her injury and that it “could be related to work” …This is the first instance that she indicated this could be a work related injury.
At this point we then went to Worker’s Comp to seek advice as to what now needs to be done, there was no further action was taken at this time.
Talat returned to the office on 04/11/2013 at which time she informed me that she was unable to stay due the severity of the pain in her arm. At this point she was claiming this is a work related injury and therefore an Incident Report was lodged… She left the office with all the paperwork required in order to lodge a claim for workers compensation.
Talat later returned to the office and met with the workers comp rep who took her through what needed to be done and took a statement from her. After this meeting Talat indicated that she would not pursue a claim and in fact would try and seek benefits from Centre link (sic).
…
During this period a fellow colleague mentioned to me that Talat had complained of her arm on a couple of occasions and that it was due to doing too much housework and did not mention once that it was work related…
Talat has claimed that she does high-volume processing in her position which she believes has contributed to her injury. I have attached a copy of her position description and there is minimal processing involved in this role and I can provide reports from our ERP to show how many documents were processed throughout any period of time.
Upon receiving her work cover claim today Talat has indicated that she sits for 8 hours a day in front of her computer constantly processing and using her mouse with her right arm, also that she does not take “regulation” 10 minute breaks every hour. There are several flaws to this statement:
Talat everyday takes her hour lunchbreak (like clockwork 1pm-2pm)
Due to religious beliefs Talat is required to pray 2-3 times per day, upon which time can be gone from her desk anything between 10minutes and 15minutes
Talat is free to leave her desk at any time, we do not keep a schedule on when staff are entitled to get beverages from the kitchen or take bathroom breaks.
On 26 November 2013 CGU Self Insurance Services (CGU) which manages Linfox’s workers compensation wrote to Dr Conway seeking a medical report answering certain specified questions. On 4 December 2013 CGU asked Ms Chowdhury to attend a specialist examination by Dr David McIntosh on 17 December 2013.
On 10 December 2013 Ms Chowdhury sent a letter to CGU and Linfox asking why she needed to see Dr McIntosh as Linfox’s rehabilitation manager had asked her to see a Dr Slesenger on 12 December 2013 in relation to her capacity to undertake rehabilitation program. Ms Chowdhury went on to say:
In this regard I would like to let you know that My GP (Treating doctor) has already gone through all the medical tests reports and assessed my capacity for rehabilitation program and I have been following his program …
Is this necessary to attend another doctor for reassessing my present injury condition whereas a rehabilitation program is already in place for me to follow up initiated by my GP?
…
Notwithstanding the above, Ms Chowdhury attended the appointments with Dr Slesenger and Dr Macintosh.
On 12 December 2013 Ms Chowdhury sent a Certificate of Capacity completed by her GP to CGU and Linfox which specified that she work for three hours per day on Tuesday, Wednesday and Thursday from 16 December 2013 and for four hours per day the following week. She also sent a copy of her doctor’s mental health referral to a psychologist for generalised anxiety. A further Certificate of Capacity by Dr Amani Hanna dated 18 December 2013 was provided stating Ms Chowdhury was unfit for work from 18 December to 24 December 2013.
On 19 December 2013 Dr Joe Slesenger, Specialist Occupational Physician, prepared a report at the request of Linfox’s Rehabilitation Manager. Extracts from Dr Slesenger’s report follow:
…
Examination (Chaperoned):
On examination she arrived late for the evaluation and declined to complete a consent form saying that her hand was too weak to be able to complete this.
She grimaced and verbalised pain throughout the consultation and continued to raise her hand above her head and move her arm laterally in order to relieve the pain. She had difficulty dressing and undressing, in particular she had layered clothing that she could not remove without significant help. She had good eye contact throughout the consultation, but became introspective and sad when discussing her pain. She also asked for medical assistance in managing her pain.
Examination of her cervical spine
Examination revealed no scaring and no trophic changes. She had a severe restriction to her range of neck movements…
Examination of the right shoulder
Examination revealed no wasting and no trophic changes. There was global tenderness to minimal palpitation over the anterior aspect of the clavicle, the acromioclavicular joint around the anterior lateral aspect of the shoulder and of the posterior aspect of the shoulder and around the scapular area. There was also tenderness across the top of the shoulder and around her arm (both anterior and posterior). She had a global restriction to her movements, flexion was reduced to 60°, abduction 60°, extension was 0 and internal rotation was 45°, external rotation was 0. All resistance testings revealed positive results and an impingement test was not possible due to the level of pain described. Throughout examination of the right shoulder Mrs Chowdhury grimaced and verbalised pain.
Examination of the left shoulder
Examination revealed tenderness across the top superior aspect of the shoulder and the anterior and lateral aspect of the shoulder (she advised that she had developed pain in the left shoulder the night before the examination)…
Neurological upper limbs
She had no wasting in her shoulders and there was no wasting on her arms, forearms or hands.
Examination revealed global weakness throughout the upper limb. On the right side, she had grade 3/5 weakness to elbow flexion and extension shoulder flexion and abduction and adduction, external rotation and internal rotation; she had weakness of the intrinsic muscle of the hands.
Examination of the left arm revealed no power loss…
…
Upon distraction it was noted she had an improved range of movements particularly her cervical spinal movements were normal when looking for her BCG scar, furthermore whilst dressing and undressing she demonstrated of shoulder movements and was able to abduct her right shoulder to 150°. She attended the evaluation carrying a bag with x-rays in her left arm, however, on leaving the clinic it was noted that she no longer favoured the left arm.
…
Summary:
Mrs Chowdhury presents with two to three months after the development of right shoulder pain. She has been investigated by her GP and current working diagnosis is:
1.    Right shoulder supraspinatus tear
2.    Anxiety
On examination she was noted to have a global restriction to her neck and right shoulder, movements with global tenderness on her right shoulder and upper right arm. On distraction it was noted to be significant improvement in range of movement and function.
In regards to your specific questions:
Is Mrs Chowdhury fit to participate in a rehabilitation program?
Mrs Chowdhury is fit to engage in a rehabilitation program. She is already attending work on three days a week, three hours a day and I would encourage her to continue the graduated return to full activities.
…
3.    Through the account Prognosis and diagnosis.
I am unable to provide a diagnosis at this stage. The global restriction to her range of movement associated with a hyperaesthesia over the whole of the right shoulder and upper arm, and the improved range of movement’s distraction creates difficulty in establishing the true cause of her impairment.
I am of the opinion that the cause of her problems may not lie in her shoulder, but may be more centralised.
With regards to the x-ray and ultrasound scan findings, I note the account working diagnosis. However I observe the moderate sensitivity these (sic) and their limited usefulness in establishing the diagnosis given Mrs Chowdhury’s presentation.
4.    Treatment goals and recovery time frames
Mrs Chowdhury needs stronger reassurance with regard to the x-ray findings. She needs to be encouraged to mobilize and to use adequate analgesia. I am concerned about the high dose of Tramadol that she is currently prescribed and I believe this should be reviewed with her GP. She should engage in the exercise program which she has been shown by her GP and by her physiotherapist and should participate in the Return to Work program as already identified.
5.    Appropriate treatment and requirements:
I believe that Mrs Chowdhury has been provided with a rehabilitation program. She should contact her GP for reassurance with regard to the x-ray and ultrasounds scans findings. I have contacted her GP surgery and I have been advised that the GP has now left the practice and it will be useful for to engage in a new GP to discuss the contents of my report and I would be grateful if a copy of my report could be forwarded to treating practitioners.
6.    Please comment on Mrs Chowdhury’s ability to drive and ability to take public transport to and from work
Mrs Chowdhury advises she is currently unable to drive (both at evaluation and correspondence to her employers). I do not believe she has the capacity to drive at this stage, primarily due to the level of pain, but also due to the restricted range of neck movements (although the full extent of her neck movement is unclear). I also note her use of medication and she is currently taking (400mgs of Tramadol per day) and I’m concerned that her cognition may be impaired as a result. I therefore, recommend that she access public transport and I believe she is fit to do so.
…

On 4 January 2014 Dr Hanna issued a Certificate of Capacity stating that Ms Chowdhury was unfit for any duties from 4 January 2014 to 2 February 2014 due to right shoulder pain.
Dr David Macintosh, Consultant Orthopaedic Surgeon, prepared a report dated 6 January 2014 addressed to CGU Self Insurance Services. Mrs Chowdhury’s husband had accompanied her to the interview and examination with Dr Mackintosh. Extracts from the report are as follows:
…
HISTORY:
…
Mechanism of Alleged Injury/Sequence of Events:
She first started to notice pain in the region of the right shoulder in August 2013. The pain came on gradually was referred down to her elbow. She claims this was due to continuous typing and said there is nothing outside of work that has caused any trouble.
Initial/Early Treatment Received:
She eventually stopped work on 24 October and had a short period of physiotherapy and was given analgesics. She said she showed no signs of improvement.
Subsequent Progress/Specialist Management:
She said she returned to work early in December 2013 with a light job three hours a day, three days a week reading and marking with her left hand. On Monday last week she developed neck pain and both her neck and right shoulder are getting worse.
Current status:
She now complains of constant pain in the right shoulder that she described as being between eight and 10 out of 10 all the time. She said she does not do anything with her right arm as any activity aggravates it. She is married but has moved to live with her son and daughter-in-law and does not do anything at all during the day. She said she often feels very sleepy. She also feels she is becoming depressed.
…
PHYSICAL EXAMINATION:
…She came into the consultation room holding her right arm above shoulder level and externally rotated the arm and constantly moved the arm around during the interview mostly above shoulder level but sometimes below. She kept rubbing her shoulder with her left hand.
I noted she had full easy neck movement through the interview and during the examination period except when she was asked to directly move her neck when she said she could not move it at all because it was “too painful”. Her husband was with her and continually interrupted during the interview and was needed to help remove her outer jacket.
Head/Neck:
On direct examination of her neck she was hypersensitive to even light touch all across her neck and both shoulders and down to her right elbow and across the upper chest wall.
…
SUMMARY AND ASSESSMENT:
Ms Talat Chowdhury developed the gradual onset of pain in the region of her right shoulder around August 2013. She claims that her pain was related to constant typing working at the computer and denies any other causative or aggravating factors. On examination she showed signs of abnormal pain behaviour with hypersensitivity, and gross inconsistency in her physical signs. She has degenerative changes in her neck and right shoulder on her investigations with a full thickness tear of the supraspinatus. This finding at her age is not significant in itself.
In reply to the specific questions in your letter of 11 December 2013:
1.From what specific conditions does the claimant currently suffer?
It is not possible to properly assess her neck or right shoulder as she has major inconsistency in her physical signs and abnormal pain behaviour. Investigations are not helpful.
She may have an underlying rotator cuff syndrome on the right and underlying cervical spondylosis. There is no evidence to suggest that these are work-related.
2.On the balance of probabilities as distinct from possibilities, is the condition suffered by the claimant related to;
a.Employment with Linfox Australia Pty Ltd, specifically keyboard and mouse work
On the balance of probabilities the specific work activity of typing without any particular injury is inconsistent with a work-related injury. Therefore, in my opinion the condition she suffers is not related to her employment with Linfox Australia Pty Ltd.
b.A pre-existing, congenital, constitutional or underlying condition,
She may have some symptoms from underlying degenerative changes in her neck and shoulder.
c.An aggravation, acceleration or recurrence of a pre-existing condition and if so have the effects of the aggravation, acceleration or recurrence ceased. If not ceased, when do you consider the effects would cease?
No
d.Factors unrelated to work? If so, please give details.
This is uncertain.
Treatment
3.What treatment program is recommended and for how long and with what frequency?
In my opinion physical therapy is unlikely to be effective. I would not recommend anything but mild analgesics and would strongly recommend against strong analgesics or other types of medication or physical therapy.
Capacity for work
4.Does the claimant currently have a capacity to engage in work at the same level at which she was engaged by Linfox Australia Pty Ltd, ie as an administration officer immediately before the injury?
There appears to be a major degree of abnormal pain behaviour which is likely to inhibit her work activity. From a purely physical point of view she may have difficulty with heavy work or work involving repetitive activities over shoulder level. I consider that she could work full-time as a keyboard operator providing she had regular breaks.
…
8.What is the prognosis for this condition?
The prognosis for the shoulder is that over one to two years she will probably settle completely with conservative management.
9.Are there any aspects of the clinical examination which tend to suggest that the claimant is:
a.voluntarily exaggerating her symptoms;
Yes.
b.consciously guarding restriction of movement;
Yes.
c.displaying symptoms and examination findings inconsistent with the claim condition;
Yes
d.demonstrating a range of movement during your passive observation which were not replicated during clinical examination?
Yes.
On 10 January 2014 Mr Chowdhury saw a psychologist who reported to Dr Hanna:
I have met and consulted with Mrs. Chowdhury on 10^th January, 2014 for psychological counselling.
In my opinion, psychological treatment would be limited given her drowsiness from her medication… I write to you in support of her immediate consultation with psychiatrist, Dr. Prasana (sic) to advise on medication for depression… and/or anxiety resulting from workplace bullying following her physical injury.
…
On 13 January 2014 Ms Chowdhury’s claim for compensation was denied.
On 28 January 2014 a further Certificate of Capacity was issued stating that Ms Chowdhury was unfit for work from 3 February 2014 to 28 February 2014.
On 7 February 2014 Ms Chowdhury applied for reconsideration of her claim. She provided a radiologist’s report dated 22 January 2014 which stated:
CT CERVICAL SPINE
…
Conclusion:
Widespread spondylotic changes…The worst affected level is C6/7 where there is severe bilateral foraminal stenosis with likely impingement of the C7 nerve roots.
RIGHT SHOULDER ULTRASOUND
The long head of biceps tendon is in located and intact.
There is a full thickness tear present in supraspinatus at a point 14mm from the long head of biceps tendon. This measures 13mm in maximal diameter.
The other rotator cuff tendons are intact.
The subacromial bursa is thickened and bunches up to impinge on abduction in keeping with subacromial bursitis.
On 27 February 2014 the decision to refuse compensation was affirmed by the reconsideration delegate.
On 2 October 2014 Mr Russell Miller, orthopaedic surgeon, provided a report to Dr Conway at her request for an opinion and management of Ms Chowdhury whose presenting problem was chronic shoulder pain that had not improved despite anti-inflammatories, physiotherapy and steroid injection.
Many thanks for referring this 56 year old female for evaluation of her diffuse and multiple orthopaedic symptomatologies. I saw Talat in conjunction with her husband, though I understand they now live separately.
History: Talat has a number of medical problems including long-standing depression. She reports problems with diffuse neck, right shoulder and right arm pain. She relates to a work injury on 04/11/2013 and to repetitive activities at work and also to repetitive activities at work. These symptoms are not improving and have remained resistant to conservative measures.
I understand she has also been seen at the Northern Hospital and has been treated conservatively.
Examination: On examination she was a lady with a rather flat affect. Examination of the cervical spine reveals a limited range of motion being approximately two thirds of normal. Examination of the right shoulder revealed no scars, no deformity, diffuse tenderness and a reduced range of motion being approximately two thirds of normal. There was irritability during shoulder movement. There was no neurological deficit.
Investigations:
A CT of the cervical spine shows degenerative disease and previous ultrasound suggested bursitis in the right shoulder.
Comment: Clearly this is a complex case. There may well be pathology in the cervical spine and right shoulder, but I think it is highly likely that there is a significant overlay of chronic pain syndrome which will complicate the assessment and management of her condition.
I will undertake further imaging with an MRI and X-rays of the cervical spine and right shoulder and review Talat following that, but I think it is unlikely that surgical intervention will assist her. I have suggested she be reviewed by Advance Health Care to assess and possible (sic) treat probable chronic pain syndrome.
The medical evidence indicates that Ms Chowdhury has a right shoulder problem, namely a tear in the supraspinatus tendon. The Tribunal accepts, as does the respondent, that Ms Chowdhury has an injury. The issues for the Tribunal are whether the injury is work-related and, if so, whether it meets the legislative requirements under the Act to be compensable.
Ms Chowdhury’s general practitioner at the time, Ms Conway suggested the shoulder condition could be work-related. Ms Chowdhury appears to have convinced herself that her pain is the result of a workplace injury. Initially Ms Chowdhury suggested that she was required to undertake keyboard work for eight hours continually without a break. However her supervisor, Ms Phillips, in her statement, pointed out that Ms Chowdhury had an hour for lunch every day, had prayer breaks two or three times a day and was free to take refreshment or toilet breaks whenever she wished to do so.
In her oral evidence Ms Chowdhury conceded that she sorted out invoices as well as made relevant computer entries and so was not keyboarding for eight hours straight. She also conceded that she was free to have breaks to stretch or refresh and that she was allowed two or three prayer breaks each of around 10 minutes when at work. She also agreed that she took an hour for lunch. Ms Chowdhury complained that she was working in a high pressure environment, making her reluctant to take breaks.
Dr McIntosh was adamant in his report and also in oral evidence that work of the nature undertaken by Ms Chowdhury would not cause a shoulder supraspinatus tear. In his report and that of Dr Slesenger, they note that there appear to be other issues at play. As is set out in the quotes from their reports, the specialist doctors described abnormal pain reactions and differences in Ms Chowdhury’s movements depending on whether she was partaking in the formal examination process as opposed to general movement at other times during his consultation. Dr Miller, to whom Ms Chowdhury was referred by her general practitioner, described the situation a year after the claim as complex and speculated as to whether there existed a chronic pain syndrome.
In his oral evidence, Dr McIntosh stated that Ms Chowdhury may well be suffering from rotator cuff syndrome. He stated that the type of arm rotation exhibited by Ms Chowdhury during his examination of her would make the condition worse. Dr McIntosh said that the onset of pain from such a condition was usually gradual. He said that the syndrome could develop without any identifiable cause although it was age-related as part of the degenerative process. Dr McIntosh said that about 40 per cent of people who have the syndrome do not experience any symptoms. Asked if typing could make the pain worse, Dr McIntosh said it would not. It was essentially a degenerative condition.
Under cross examination, Dr McIntosh stated that he had 40 years of experience as an orthopaedic surgeon and that he has updated himself before the hearing on all the latest literature. He remains of the opinion that Ms Chowdhury’s condition is not related to keyboard activities.
There is no evidence apart from that given by Ms Chowdhury that her work was the cause of the injury. Her general practitioners, who have varied over the period since the injury, also considered she could be suffering a workplace injury but it is not clear why they formed that view beyond being informed of that by their patient. Ms Chowdhury stated that she had experienced pain prior to the date of her claim in November 2013. She stated that she had told her supervisor on three occasions in August 2013 and October 2013 of shoulder pain but her supervisor did not recall this.
Furthermore at the current time, it appears that the continuation and level of the pain experienced by Ms Chowdhury may well be due to or exacerbated by other conditions such as anxiety and chronic pain syndrome for which Ms Chowdhury has not claimed compensation.
Section 5A of the Act provides a definition of injury. The Tribunal finds that Ms Chowdhury suffered a physical injury, namely the tear of the right shoulder supraspinatus tendon. However, based on the medical evidence, the Tribunal is not satisfied that the injury arose out of, or in the course of, Ms Chowdhury’s employment with Linfox.
The Tribunal prefers the evidence of Dr McIntosh, an experienced orthopaedic surgeon over that of the general practitioners who have speculated that Ms Chowdhury’s injury could be work-related. The issuing of notices mentioning Ms Chowdhury’s unfitness for work by the general practitioners does not constitute evidence that her condition arose out of her employment.
Mr Chowdhury submitted that, in organising a return to work program for Ms Chowdhury, Linfox and its doctors accepted that her injury was work related. The Tribunal does not accept that argument. Linfox’s efforts to assist Ms Chowdhury to return to work on reduced hours and lighter duties does not equate to an acceptance of her injury as work-related.
It is often difficult to categorise injuries or ailments as either coming under section 5A or 5B of the Act. If Ms Chowdhury’s condition arose out of an aggravation of a pre-existing ailment that was symptom-free until something happened in the workplace, the Tribunal would have to determine that the aggravation was contributed to, to a significant degree, by her employment.
As has been indicated earlier, the Tribunal is not satisfied that the type of work undertaken by Ms Chowdhury would lead to the aggravation of her underlying degenerative conditions.
The Tribunal notes that Ms Chowdhury is now experiencing physical and psychological issues. Life has become very difficult for her and her husband emotionally, physically and financially. However, the Tribunal is unable to consider the other conditions from which Ms Chowdhury now suffers such as anxiety, cervical spine problems or possible chronic pain syndrome as there have not been any compensation claims lodged in relation to those conditions
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
[sgd]........................................................................
Dated 31 August 2015

Date of hearing 5 – 6 May 2015

Applicant In person

Counsel for the Respondent Charles Clark

Solicitors for the Respondent Peter Crethary, Moray & Agnew Lawyers

[2015] AATA 657

31 August 2015

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Negligence

Remedies

Division	GENERAL DIVISION
File Number	2014/2175
Re	Talat Khandaker Chowdhury
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

Tribunal	Regina Perton, Member
Date	31 August 2015
Place	Melbourne

Date of hearing	5 – 6 May 2015
Applicant	In person
Counsel for the Respondent	Charles Clark
Solicitors for the Respondent	Peter Crethary, Moray & Agnew Lawyers