Chu Yu Chee and Comcare (Compensation)

[2018] AATA 1241

Chu Yu Chee and Comcare (Compensation) [2018] AATA 1241 (3 May 2018)

Division:GENERAL DIVISION

File Number:           2017/1533

Re:Men Soon Chu Yu Chee

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President S Boyle
Senior Member Dr M Evans

Date:3 May 2018

Place:Perth

The decision under review is affirmed.

.....[sgd]...................................................................

Deputy President S Boyle

CATCHWORDS

COMPENSATION –  Commonwealth employee – sprain of shoulder and upper arm – accepted conditions – whether applicant continues to suffer from the effects of the injury – whether applicant presently entitled to medical expenses or incapacity payments – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 2A(b) and (c), s 25(1), s 29(2)

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4, s 5A(1), s 5B(1), s 5B(1)(a), s 5B(1)(b), s 5B(2), s 5B(3), s 7(4), s 14, s 14(1), s 16, s 16(1), s 19, s 60(1), s 62(1), s 62(2), s 62(4), s 62(5), s 64(1), s 65(4)

Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)

CASES

Australian Postal Corporation v Burch (1998) 156 ALR 483

Comcare v Power (2015) 238 FCR 1187; [2015] FCA 1502

Comcare v Reardon (2015) 148 ALD 356; [2015] FCA 1166

Kavanagh v Commonwealth (1960) 103 CLR 547

Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626

May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397

Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369

Reardon and Comcare [2015] AATA 360

Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886

Re Winsall and Comcare (2003) 72 ALD 696

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

Deputy President S Boyle

Senior Member Dr M Evans

3 May 2018

THE APPLICATION

1. On 26 September 2014, the Applicant made a claim for workers’ compensation for “a painful left shoulder abduction” (Page 4 of Claim for Workers’ Compensation form contained in Exhibit R1, page 11).

2. On 24 November 2014, the Respondent made a determination under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) accepting liability for the Applicant’s claim for the injury of “sprain of shoulder & upper arm (left)”. The date of injury was stated as 21 May 2014, being the date that the Applicant first sought medical treatment. The determination further stated that, “Reasonable medical treatment claims resulting from this injury have been accepted up to and including 18 November 2014” (Letter from Comcare to the Applicant dated 24 November 2014 contained in Exhibit R1, page 80). 

3. On 29 September 2015, the Respondent wrote to the Applicant to inform him that it would no longer accept liability for “a continued exercise program and gym membership” because such treatment did not meet the criteria for medical treatment under s 16(1) of the SRC Act (Exhibit R1, page 95).

4. On 15 December 2016, an authorised delegate of the Respondent determined that the Applicant had no present entitlement to compensation benefits under s 16 and s 19 of the SRC Act (Determination dated 15 December 2016 contained in Exhibit R1, page 137). This reconsideration was made under s 62(1) of the SRC Act.

5. The Applicant requested a review of the determination of 15 December 2016 (Email from the Applicant dated 23 December 2016 contained in Exhibit R1, page 139) under s 62(2) of the SRC Act.

6. On 19 January 2017, an authorised delegate of the Respondent reconsidered the determination of 15 December 2016 under s 62(4) of the SRC Act. The authorised delegate then affirmed the determination under s 62(5) of the SRC Act (the Reviewable Decision) (Exhibit R1, T27).

7. On 16 March 2017 the Applicant made an application to the Administrative Appeals Tribunal to review the Reviewable Decision (Exhibit R1, T1).

   BACKGROUND

8. The Applicant is a 55 year old man. He commenced employment with the Department of Human Services (DHS) on 8 February 1993. He is right-hand dominant.

9. The Applicant has a history of back pain dating back to approximately 2008. An ergonomic workstation assessment by Recovre dated 16 May 2014 noted that “Mr Chu Yu Chee reported a 5 year history of lower back pain due to a herniated disc. He stated that he independently managed this pain through exercise and regular postural variation” (Exhibit R2, page 13). An ergonomic workstation assessment from People Sense (Exhibit R1, page 40) also noted the Applicant injured his lower back in 2008 and that he undertook “daily maintenance exercises to manage symptoms relating to this injury”.

10. The Applicant reported that on 7 May 2014 he woke up with severe pain in his left arm which he was “unable to lift normally”. He attributed this pain to “left hand use of computer mouse” (DHS Report of Incident or Injury, Exhibit R1, page 44).  At this time the Applicant was employed as a Customer Service Officer by DHS.

11. DHS organised for the ergonomic workstation assessment of the Applicant’s workstation to be undertaken by Recovre. The ergonomic workstation assessment stated that “the monitors were appropriately positioned for their intended use” and that there were no identified problems with desk height, or the positioning of the Applicant’s phone or keyboard (see ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 34).

12. The ergonomic workstation assessment stated that the computer monitors were lowered from 59.5cm to 58cm, and that a 57cm height had been recommended, however the Applicant “felt he had to flex his neck excessively to view the screens at this height”. The assessment further stated that, “For the purpose of minimising sustained right cervical rotation, Mr Chu Yu Chee was encouraged to complete as many tasks as possible on his primary monitor, and to use the secondary monitor only when referring to documents, wherever possible” (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 35-36). The assessment also recommended the use of a “Contour Roller Mouse” which “may be used with both hands or the left or right only and is situated along the keyboard line, enabling neutral upper limb position” (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 36).

13. Under the heading “Breaks and exercise” in the column “possible areas of concern” the assessment (ergonomic workstation assessment dated 16 May 2014, located within Exhibit R1, page 36) stated:

    Mr Chu Yu Chee demonstrated a cervical extension exercise to The Recovre Group at the time of the assessment. It involved standing, tilting the head back and the [sic] pushing the head into a wall behind him. The exercise is likely to place excessive pressure on the spine and cause increased tension and overactivity of the upper trapezius muscles.

    The first recommendation under this heading was: “Mr Chu Yu Chee was strongly encouraged to cease the described cervical extension exercise, immediately”.  

14. The Applicant had previously had ergonomic workstation assessments undertaken and reports were written in September 2008, October 2009, and October 2010 (DHS Timeline of Events located at Exhibit R1, page 50). An ergonomic workstation assessment was also undertaken on 13 February 2013 by People Sense (Exhibit R1, page 40), which also referred to an earlier ergonomic workstation assessment being undertaken 6 months earlier (in 2012).

15. On 21 May 2014 the Applicant first sought treatment for his shoulder condition. He went to see his doctor, Dr Vinny Shamprasadh, who issued him with a “Workers’ Compensation First Medical Certificate” for “painful left shoulder abduction” (page 1 of First Medical Certificate, Exhibit R1, page 25). Dr Shamprasadh recommended that the Applicant could return to work with restrictions on lifting and repetitive use of the affected body part, and that the Applicant required further treatment, recommending “six sessions of physiotherapy initially” (page 2 of First Medical Certificate, Exhibit R1, page 25).

16. The Applicant consulted a physiotherapist, Ms Lenore Smith, on 22 May 2014. Ms Smith stated with respect to the Applicant waking up with pain in his neck and down his left arm, “I suspect this injury could be an overuse injury”. She also stated that the Applicant reported having these issues since 2013 (Exhibit R1, pages 75 - 76).

17. In the First Medical Certificate, Dr Shamprasadh noted the “[d]etails from Worker Date of Injury” and the “[o]nset of complaint” to be February 2013 (page 1 of First Medical Certificate Exhibit R1, page 25).

18. The Applicant lodged a compensation claim with Comcare on 26 September 2014 for “painful left shoulder abduction” (Exhibit R1, page 11), stating “extended time using left mouse and 2 computer monitors” as the event that caused the injury or illness (Exhibit R1, page 13). 

19. In a letter to Comcare dated 10 November 2014 (Exhibit R1, page 78), Dr Shamprasadh stated that the Applicant had “…left neck pain and painful left shoulders and was found to have limited abduction to the left shoulder in keeping with a soft tissue inflammation” and that his patient had attended six physiotherapy sessions between May and June 2014 which resulted in some improvements with respect to pain and stiffness. However, due to the Applicant making “slow progress with the left shoulder movements”, Dr Shamprasadh stated that he was referring the Applicant for an MRI scan, after which he would determine whether more focussed physiotherapy treatment or an orthopaedic referral should be considered.

20. An MRI on the Applicant’s left shoulder was undertaken at Perth Radiological Clinic on 28 October 2014 (Exhibit R1, page 85). The findings in a Report by Dr Rohan Vanden Driesen, compiled on 30 December 2014, were as follows:

    AC joint arthropathy with undersurface spurring of the distal clavicle and thickening of the posterior portion of the coracoacromial ligament, resulting in some impingement on the subacromial/subdeltoid bursa, which is mildly thickened and oedematous.

    Mild supraspinatus tendinopathy and bursal surface fraying, and minimal intralamellar fissuring of infraspinatus, but no rotator cuff tear or tendon retraction is seen and muscle bulk is preserved.

    No labral tear identified.

21. As noted in paragraph 2 above, on 24 November 2014, Comcare accepted liability for the Applicant’s claim under s 14 of the SRC Act for “sprain of shoulder & upper arm (left)”, and determined the date of injury as 21 May 2014 being the date that the Applicant first sought treatment for the injury (s 7(4) of the SRC Act).

22. On the advice and referral of his doctor and physiotherapist in February 2015 the Applicant undertook supervised gym based rehabilitation sessions. The Applicant’s exercise physiologist reported that the Applicant’s “condition has gradually improved since commencement of his rehabilitation on the 6^th March, 2015” (first undated letter from Illawarra Physiotherapy Centre, Exhibit R1, page 91).

23. In total, Comcare approved two 3 month gym memberships and 33 supervised gym visits of 60 minutes for the Applicant (letter from Comcare to the Applicant dated 29 September 2015, Exhibit R1, page 95).  The second 3 month membership was approved following the Applicant’s doctor’s recommendation (in May 2015) that further supervised gym based rehabilitation sessions would be beneficial due to improvements in his condition from the sessions already completed (Referral from Medical Practitioner, Exhibit R1, page 86).

24. As noted in paragraph 3 above, on 29 September 2015, following a request from his exercise physiologist (second undated letter from Illawarra Physiotherapy Centre, Exhibit R1, page 94), the Respondent declined to pay for an additional gym membership, stating that “[c]urrently, the available medical evidence does not indicate that this treatment meets the above criteria for your accepted compensable condition of sprain of shoulder & upper arm (left)”. Comcare further stated:

    It would be expected that you should now be able to progress to self-management of your condition. Having assessed the evidence on your claim file I have determined under section 16 of the SRC Act that compensation is not payable for a continued exercise program and gym membership.

25. Dr Shamprasadh referred the Applicant to an orthopaedic surgeon, Mr Robert Petanceski. Mr Petanceski examined the Applicant on 24 November 2015 and referred the Applicant for an MRI scan (Letter from Mr Petanceski dated 24 November 2015, Exhibit R1, page 97). The MRI undertaken on 28 January 2016 showed “mild degenerative change of acromioclavicular joint” and “mild bursal thickening but no evidence of a high grade rotator cuff tear” (Letter to Mr Petanceski from Perth Radiological Clinic, Exhibit R1, page 99).

26. The Applicant was referred by Allianz Australia Insurance Limited (Allianz) (which had taken over the management of the Applicant’s claim from Comcare) to Dr John Liddell, a consultant neurosurgeon, to undertake an independent medical assessment. Dr Liddell examined the Applicant on 31 March 2016 (Independent Medico-Legal Report of Dr Liddell dated 1 April 2016, Exhibit R1, page 101). Dr Liddell gave the following opinion (Exhibit R1, page 103-104):

    Mr Chu Yu Chee has a long history of neck discomfort and stiffness – apparently, related to his work environment. Furthermore, in or about May of 2014, he awoke with “spasms” in the back of his left shoulder, and experienced difficulty lifting his left arm.

    Those symptoms (i.e. the shoulder symptoms) appear to have improved since then. However, he continues to experience neck discomfort and stiffness, along with the “occasional pain” in the back of his left shoulder.

    He has radiological evidence of a moderately severe degree of foraminal stenosis on the left at C4/5, and bilaterally (left>right) at C5/6 and C6/7 – changes that could well explain his left shoulder/upper limb symptoms.

    It is certainly conceivable that the act of constantly moving his head to look at two computer screens, could “render symptomatic” or make “more symptomatic” the degenerative changes that Mr Chu Yu Chee undoubtedly had in his cervical spine for some years – prior to the onset of his shoulder symptoms. However, on the basis of the available information, I find it difficult to believe that Mr Chu Yu Chee has sustained a significant “injury” at work.

27. In a letter to Allianz dated 27 July 2016, Mr Jason Rocca, a physiotherapist, recommended 12 supervised gym sessions over a 12 week period to improve function and manage pain. Mr Rocca stated that the gym sessions would, “focus on strengthening his shoulder and cervical muscles, improving his range of motion and instilling confidence in his neck” (Exhibit R1, page 110). A similar request was made by Mr Rocca for a further six gym sessions over a 12 week period in a letter to Allianz dated 9 August 2016 (Exhibit R1, page 114).

28. The Applicant was, at the request of Allianz, assessed by Dr L J du Plessis, a consultant neurologist and rehabilitation physician on 25 October 2016. In pages 10-11 of his Report (Exhibit R1, pages 126 - 127) Dr du Plessis’ “Summary and Assessment” was as follows:

    I do not consider that his original symptomology nor more recently developed symptoms commencing in May 2014 has anything to do with his occupation and the fact that he had to rotate his head and neck from right to left when looking at the two computer screens in front of him. This would not give rise to degenerative changes or, in my opinion, to any of his reported symptoms. In my opinion his symptoms in his neck are purely degenerative in nature and have nothing at all to do with his occupation.

    I have a different diagnosis for his sudden onset symptomatology of May 2014. This symptomatology has the typical hallmark of an acute event of brachial neuritis alternatively known as neuralgic amyotrophy…The cause of neuralgic amyotrophy is not completely understood, but the presentation of Mr Chu Yu Chee’s symptoms was classical of this condition. Usually this condition recovers fully within a matter of 12 weeks to 12 months, but there is a very small percentage of patients who do not recover and are left with severe muscle wasting and permanent weakness of the upper limb on the affected side. There is also a small percentage of patients who recover well, but not completely. I would place Mr Chu Yu Chee into this category.

    This condition is not a work-related condition and is best described as being idiopathic or of unknown cause. Many suggestions have been made with regard to the possible cause including viral infections and an autoimmune disorder, but an occupational activity has never been found to be causative.

    I thus do not find either of Mr Chu Yu Chee’s conditions to be related to his occupation.

29. Dr du Plessis further stated at page 11 of his Report that, “My diagnosis is that of mechanical neck pain related to underlying degenerative changes that are unrelated in causation to his occupation and my second diagnosis is that of neuralgic amyotrophy most probably due to an idiopathic cause, although this is also not work related”. (Exhibit R1, page 127).

    JURISDICTION

30. The jurisdiction of the Administrative Appeals Tribunal is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which states:

    (1)  An enactment may provide that applications may be made to the Tribunal:

    (a)  for review of decisions made in the exercise of powers conferred by that enactment; or

    (b)  for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.

31. Section 64(1) of the SRC Act provides that:

    (1)  Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:

    (a)  the claimant; or

    (b)  if the decision affects the Commonwealth—the Commonwealth; or

    (c)  if the decision affects a Commonwealth authority—the Commonwealth authority; or

    (d)  if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.

32. A “reviewable decision” is defined in s 60(1) of the SRC Act as, “a decision made under subsection 38(4) or section 62”. As the Reviewable Decision of 19 January 2017 was made under s 62(5) of the SRC Act, following the reconsideration of the determination under s 62(4), the AAT has jurisdiction to review the Reviewable Decision.

33. Section 29(2) of the AAT Act provides:

    (2)  Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty‑eighth day after:

    (a)  if the decision sets out the findings on material questions of fact and the reasons for the decision—the day on which a document setting out the terms of the decision is given to the applicant…

34. Section 65(4) of the SRC Act modifies s 29(2) of the AAT Act as follows: “Subsection 29(2) of the Act has effect as if the reference to ‘the twenty‑eighth day’ (first occurring) were a reference to ‘the sixtieth day’”.

35. The date of the decision was 19 January 2017. It is unclear how the letter was sent to the Applicant because although it is addressed to him personally, it does not contain a postal or email address, or any reference to how it was transmitted. The Applicant sought review of the decision by the Administrative Appeals Tribunal on 16 March 2017. Therefore the Applicant was within the sixty-day prescribed time for applying to the Tribunal for a review of the decision (s 29(2) AAT Act; s 65(4) SRC Act).

    ISSUE FOR DETERMINATION

36. The central issue for determination by the Tribunal is whether the Applicant was entitled to compensation under s 16 and s 19 of the SRC Act as at 15 December 2016, and presently.

37. This requires consideration of the following issues:

    (a)Firstly, whether the Applicant suffered an injury within the meaning of s 14 of the SRC Act? That is, was the Applicant’s condition a disease or an injury (other than a disease) pursuant to s 5A(1) of the SRC Act?

    (b)Secondly, if the Applicant did suffer an injury within the meaning of s 14 of the SRC Act, did the Applicant continue to suffer from the injury, as at 15 December 2016, and presently?

    (c)Thirdly, if the Applicant did suffer an injury within the meaning of s 14 of the SRC Act, did the injury result in incapacity for work (s 19 SRC Act) and/or the need for medical treatment (s 16 SRC Act) as at 15 December 2016, and presently?

1. The answer to the first issue - whether the Applicant suffered an injury within the meaning of s 14 of the SRC Act? - essentially requires the Tribunal to consider whether liability was correctly accepted by the Respondent in the first place (as at 24 November 2014).  In Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 (Hannaford), the Full Court of the Federal Court considered whether the AAT is empowered to make findings of fact that are contrary to those found by the original decision-maker under s 14 of the SRC Act, in circumstances where the AAT is undertaking a review of determinations under s 16 and s 19 of the SRC Act.

2. Conti J, in Hannaford, with whom Heerey J and Dowsett J agreed, stated the following at [273-274]:

   …it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part…’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.

3. Conti J concluded at [274] that:

   I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened:

   (i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and

   (ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and

   (iii)       to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.

   In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.

4. In summary, in accordance with Hannaford, the AAT can revisit whether liability was correctly accepted by the Respondent under s 14 of the SRC Act when considering an application as to whether an Applicant is entitled to compensation under s 16 and s 19 of the SRC Act.

   LEGISLATION

5. Comcare’s liability to pay compensation is provided for in s 14(1) of the SRC Act:

   14  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.

6. With respect to the payment of medical expenses, s 16(1) of the SRC Act states:

   16  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.

7. With respect to compensation for weekly earnings if an employee is incapacitated for work, s 19 of the SRC Act states:

   19  Compensation for injuries resulting in incapacity

   (1)  This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

   (2)  Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula…

8. An “injury” is defined in section 5A(1) of the SRC Act as follows:

   (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.

9. Section 5B of the SRC Act defines a “disease” as follows:

   (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.

10. Section 4 of the SRC Act defines “ailment” as, “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.

    MATERIAL BEFORE THE TRIBUNAL

11. The application was heard by the Tribunal on 26 to 28 February 2018. The Applicant appeared in person, with Mr Paul Cooke attending as his support person. The Applicant’s daughter attended part of the hearing to support her father. Ms Jessica Henderson appeared as legal counsel for the Respondent.

12. The following witnesses gave evidence to the Tribunal:

    (a)the Applicant;

    (b)Dr John Liddell, a consultant neurosurgeon (appeared in person). Dr Liddell’s qualifications are: Bachelors of Medicine/Surgery, and Fellow of the Royal Australasian College of Surgeons; and

    (c)Dr L J du Plessis, a consultant neurologist and rehabilitation physician (appeared by telephone). Dr du Plessis’ qualifications are: Bachelors of Medicine/Surgery, Fellow of the Royal Australasian College of Physicians, Fellow of the Australasian Faculty of Rehabilitation Medicine, and Fellow College of Physicians (South Africa). Dr du Plessis gave evidence to the Tribunal that he had undertaken over 20,000 medico-legal assessments since 1980;

    The Tribunal found each of these witnesses to be honest and credible witnesses who gave evidence to the best of their recollections.

13. The following documents were before the Tribunal:

    (a)an email from the Applicant to the Tribunal dated 31 January 2018 which attaches the following correspondence (collectively Exhibit A1).  

    (i)an email from the Applicant dated 2 June 2016 marked “To the attention of Comcare Claims General Manager”;

    (ii)an email from a Senior Case Manager at Allianz dated 27 October 2016 to the Applicant;

    (iii)a letter dated 28 September 2016 from Mr Braad Sowman, Orthapaedic Surgeon, SpineWest to Mr Robert Petanceski;

    (iv)an email from a Senior Case Manager at Allianz dated 18 November 2016 which attaches a series of emails from 20 September 2016;

    (v)an email dated 24 November 2016 from the Assistant Director, Freedom of Information, Comcare, to the Applicant;

    (vi)an email from the Applicant dated 6 December 2016 to the Reconsiderations team at Comcare;

    (vii)an email from the Assistant Director, Disputed Claims at Comcare to the Applicant dated 15 December 2016;

    (viii)an email from the Applicant to Allianz dated 23 December 2016 which contains a series of emails of the same date;

    (ix)an email from the Applicant to Comcare dated 23 December 2016;

    (x)letter from Allianz dated 15 December 2016 confirming the cessation of entitlements from 15 December 2016;

    (xi)letter from Allianz dated 14 December 2016 making a recommendation to deny present entitlements with 2 pages of reasons; and

    (xii)determination from an authorised delegate of Comcare dated 15 December 2016.

    (b)an email from the Applicant dated 14 February 2018 to the AAT and Comcare attaching “Google” search results relating to Dr du Plessis (Exhibit A2);

    (c)the Respondent’s s 37 documents (T1-T28) (Exhibit R1);

    (d)the Respondent’s supplementary s 37 documents (ST1-ST7) (Exhibit R2);

    (e)the Respondent’s Statement of Facts, Issues and Contentions dated 8 December 2017 (Exhibit R3);

    (f)an email from Comcare to the AAT and the Applicant dated 23 February 2018 containing additional medical documentation (Exhibit R4);

    (g)documents produced under summons by Ms Lenore Smith of Illawarra Physiotherapy Centre (Exhibit R5);

    (h)documents produced under summons by Mr Jason Rocca of Move Forward Physiotherapy (Exhibit R6);

    (i)documents produced under summons by Dr Christopher Lam of Beechboro Family Practice (Exhibit R7); and

    (j)documents produced under summons by Dr Vinny Shamprasadh of Pearsall Medical Centre (Exhibit R8).

14. The Tribunal has considered the parties oral and written submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal. 

    EXPERT EVIDENCE

15. Dr Liddell gave evidence in person at the hearing. Dr du Plessis gave evidence by telephone from New Zealand. The Applicant expressed concern that he was not able to cross-examine Dr du Plessis in person. It is regular practice in the Tribunal for medical experts to give evidence via telephone, particularly if the doctor is interstate or, in this case, overseas. In this regard, the Tribunal notes the objectives of the Tribunal under ss 2A(b) and (c) of the AAT Act relating to economy and proportionality. The Applicant was not disadvantaged because he was able to cross-examine Dr du Plessis by phone.

16. The Applicant also expressed concerns about the independence of Dr du Plessis in particular, and also Dr Liddell. This was on the basis of the volume of independent medical assessments that Dr du Plessis and Dr Liddell were perceived by the Applicant to undertake on behalf of insurance companies.  

17. In his oral evidence before the Tribunal, Dr du Plessis explained the process by which he is referred medical assessment work. Dr du Plessis explained to the Tribunal that he does not have direct contact with insurance companies, including Allianz. Instead, referrals are made through Medico Legal Consultants of Australia (MLCOA) which acts as a type of clearing house for medical experts dependent on the area of expertise required. Dr du Plessis gave evidence that he advises MLCOA of his availability, and they refer cases to him based on his area of expertise. Dr du Plessis told the Tribunal that he does not know who the parties are until he opens a case file. He stated that it did not matter to him who had sought the expert report because his objective is to give an honest medical opinion that will stand up to peer-review. 

18. The Tribunal also notes that Dr du Plessis stated the following at the conclusion of his report of 2 November 2016 (Exhibit R1, page 131), “I acknowledge that I have read the Expert Witness Code of Conduct and agree to be bound by it”, and “[t]he contents of this report are true to the best of my knowledge and belief.”

19. The Tribunal found Dr du Plessis and Dr Liddell to be honest and impartial expert medical witnesses.

    DID THE APPLICANT SUFFER AN INJURY WITHIN THE MEANING OF S 14 OF THE SRC ACT?

    Did the Applicant suffer from a “disease” or an “injury (other than a disease)”?

20. Comcare is liable to pay compensation to an applicant under s 14 of the SRC Act, if the applicant suffered an “injury” within the meaning of s 5A(1) of the SRC Act. An “injury” under s 5A(1) includes a “disease” (s 5A(1)(a) of the SRC Act) and an “injury (other than a disease)” (s 5A(1)(b) of the SRC Act) suffered by the employee.

21. Section 5B(1) of the SRC Act defines a “disease” as an “ailment suffered by an employee” (s 5B(1)(a) of the SRC Act) or an “aggravation of such an ailment” (s 5B(1)(b) of the SRC Act), both of which must be “contributed to, to a significant degree, by the employee’s employment”.

22. The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one for an applicant because, for an injury that is not a disease (often referred to as an “injury simpliciter”– see Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369, French CJ, Kiefel, Nettle and Gordon JJ at 378), the injury must arise out of, or in the course of, the employment (s 5A(1)(b) of the SRC Act). That is, “…the physical or mental injury has to have a causal or temporal connection with the employee’s employment” (Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369, French CJ, Kiefel, Nettle and Gordon JJ at 379).

23. An injury simpliciter can be contrasted with a disease which must be contributed to, to a significant degree, by the employee’s employment (s 5B(1) of the SRC Act). The latter requires a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486). Consequently, as noted by the Federal Court of Australia, an applicant will often seek to first argue that they have suffered an injury simpliciter, and then, in the alternative, argue the existence of a disease (Australian Postal Corporation v Burch (1998) 156 ALR 483 at 487).

24. In Re Winsall and Comcare (2003) 72 ALD 696 at [710], Senior Member Dwyer noted that “…injury and disease are not mutually exclusive and that an applicant can choose on which to rely”. Additionally, Senior Member Dwyer at [710] also noted that the distinction between an injury simpliciter and a disease could be problematic. The Senior Member suggested that: “In those cases it is appropriate in dealing with beneficial legislation to use the characterisation which is more helpful to an injured worker”.

25. Whether something is a physical injury or a disease must be determined on a case by case basis. It was stated by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 174 ALR 626 (at 632) (Kennedy Cleaning) that: “Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case”. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to “…precise evidence…concerning the nature and incidents of the physiological change…” (Kennedy Cleaning per Gleeson CJ and Kirby J at 637).

26. In Australian Postal Corporation v Burch (1998) 156 ALR 483 at 488, the Full Court of the Federal Court of Australia found a stroke to be an injury because, in the circumstances, it was “…a disturbance of the normal physiological state…or an ascertainable lesion or dramatic physiological change”. In that case the applicant was a postal worker who bent down to pick up a bundle of letters he had dropped, fell sideways and hit his head on a metal bracket, suffering a stroke.

27. Similarly, in Kennedy Cleaning Gleeson CJ and Kirby J stated (at 637) that, “…a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state…may qualify for characterisation as an ‘injury’…”

28. An injury does not have to be something that is external to the body, or “…produced by external causes” (Kennedy Cleaning per Gleeson CJ and Kirby J at 635). For example, a disc prolapse could be an injury, depending on the medical evidence (Dixon CJ in Kavanagh v Commonwealth (1960) 103 CLR 547 at 553 cited by Senior Member Dwyer in Re Winsall and Comcare (2003) 72 ALD 696 at 708).

29. In Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369, French CJ, Kiefel, Nettle and Gordon JJ, in a joint judgment, cited the following passage from May v Military Rehabilitation and Compensation Commission (2015) 233 FCR 397 with approval:

    The Full Court concluded that the inquiry demanded by the statutory definition of “injury” was, instead, “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.

30. Their Honours went on to state that, “subjectively experienced symptoms, without an accompanying physiological or psychiatric change” are not sufficient to be a disease or an injury (at 381).  That is, merely feeling unwell, or experiencing symptoms, will not be sufficient to establish an injury. What is also needed is “physiological evidence, pathology or a known diagnosis to explain the symptoms” (Re May and Military Rehabilitation and Compensation Commission [2011] AATA 886 at [63] quoted in Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369 per Gaegler J at 385).

31. An injury can include a “sudden physiological change resulting from a disease” (Kennedy Cleaning, per Gaudron J at 639). Similarly, Gleeson CJ and Kirby J stated (at 636), “the mere fact that a sudden physiological change is in some way connected with an underlying ‘disease’ process does not, of itself, prevent the classification of such a change as an ‘injury’ within the primary statutory provisions that apply to such a case.” (Kennedy Cleaning at 636).

32. It was, however, observed by the High Court in Military Rehabilitation and Compensation Commission v May (2016) 331 ALR 369 (at 379) that suddenness will not always be necessary for there to be an injury (other than a disease) or a disease. Their Honours stated (at [47]) that suddenness may nevertheless be “useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease”.

33. A disease, on the other hand, can be described as a change in underlying pathology. A disease was described in contrast to an injury by Gleeson CJ and Kirby J in Kennedy Cleaning (at 637) as follows:

    The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense.

1. Some of the evidence before the Tribunal suggested that the Applicant may have suffered an “injury (other than a disease)”. Whilst symptoms alone are not enough to amount to an injury, the suddenness of symptoms experienced by the Applicant on 7 May 2014 (when he awoke with severe pain in his left arm) may be suggestive of an injury. However, the onset of symptoms occurred outside of the workplace which may be indicative that they did not arise out of, or in the course of employment. That is, there was no “temporal connection” with the Applicant’s employment.

2. Some medical evidence was suggestive of a more temporary injury, namely a “sprain”. This may be indicative of a “physiological change or disturbance of the normal physiological state”, rather than a change in underlying pathology. This included the diagnosis by Dr Shamprasadh of 10 November 2014 (Exhibit R1, page 78) that the Applicant had “limited abduction to the left shoulder in keeping with a soft tissue inflammation”, and that his condition had improved after supervised gym physiotherapy sessions (for example, Referral from Medical Practitioner, Exhibit R1, page 86).

3. However, other medical evidence before the Tribunal suggested a change in underlying pathology in the form of degenerative changes, rather than an injury. Dr Kit Frazer of Perth Radiological Clinic reported that an MRI scan undertaken on 28 January 2016 showed “mild degenerative change of acromioclavicular joint” as well as “mild bursal thickening but no evidence of a high grade rotator cuff tear” (Letter to Mr Petanceski from Perth Radiological Clinic, Exhibit R1, page 99).

4. Dr Liddell, a consultant neurosurgeon, also noted that the Applicant had “degenerative changes” in his cervical spine which could be rendered symptomatic by his use of two computer screens. As quoted earlier in this decision, Dr Liddell stated in his Report dated 1 April 2016 (Exhibit R1, page 103):

   He has radiological evidence of a moderately severe degree of foraminal stenosis on the left at C4/5, and bilaterally (left>right) at C5/6 and C6/7 – changes that could well explain his left shoulder/upper limb symptoms.

   It is certainly conceivable that the act of constantly moving his head to look at two computer screens, could “render symptomatic” or make “more symptomatic” the degenerative changes that Mr Chu Yu Chee undoubtedly had in his cervical spine for some years – prior to the onset of his shoulder symptoms.

5. As noted earlier in this decision, Dr du Plessis, a consultant neurologist and rehabilitation physician who examined the Applicant on 25 October 2016 and diagnosed the Applicant as suffering from a condition known as “brachial neuritis” or “neuralgic amyotrophy”: see paragraph 28 above. This condition is indicative of a change in the Applicant’s underlying pathology, and can be characterised as a “disease”.

6. On the basis of the above evidence, the Tribunal concludes that the Applicant’s shoulder condition is best, on the evidence and material before the Tribunal, characterised as a change in underlying pathology and consequently a “disease” rather than an “injury (other than a disease)”. Accordingly, the Tribunal must now consider whether the Applicant’s injury (specifically, a disease) was contributed to, to a significant degree (that is, substantially more than material), by his employment.

   Was the Applicant’s injury contributed to, to a significant degree by his employment?

7. It was noted by Mortimer J in Comcare v Reardon (2015) 148 ALD 356; [2015] FCA 1166 at [75] that, “…the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is…a determination for the merits reviewer on the evidence and material before it”.  

8. In Comcare v Power (2015) 238 FCR 187 [2015] FCA 1502 (Power), Katzmann J discussed the meaning of “to a significant degree” in s 5B(2) of the SRC Act, which is defined in s 5B(3) of the SRC Act as “a degree that is substantially more than material”. Her Honour stated at [78], “[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial”, and further at [82] that, “…a material contribution is one which is greater than minimal or, one might say, trivial”.  

9. In Power Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971(Cth) which required employment to be “a contributing factor to the disease”. The current definition in s 5B of the SRC Act which requires the employment to have contributed “to a significant degree” and was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated at [93] that:

   There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.

10. In Reardon and Comcare [2015] AATA 360 at [37] Member Taglieri summarised the meaning of “contribution to a significant degree” as follows:

    I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.

11. Member Taglieri also outlined the matters which must be taken into account by the Tribunal when undertaking this evaluation, as well as determining causation when there are several contributing factors to the disease at [36]:

    In Su v Comcare the requirement of contribution to a significant degree was expressed as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn:

    “When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.” (Footnotes have been omitted).

12. The Tribunal will now address and evaluate the factors in s 5B(2) of the SRC Act which the Tribunal may take into account when determining whether the Applicant’s condition was contributed to, to a significant degree, by the Applicant’s employment.

    (a)Duration of employment: As noted earlier in this decision, the Applicant commenced work at the Department of Human Services on 8 February 1993. Consequently, at the time he experienced the symptoms on 7 May 2014, he had worked for the Department for nearly 11 years. The fact that the Applicant had worked for the Department for nearly 11 years without experiencing any symptoms suggests that his workplace did not contribute to his condition.   

    (b)Nature of, and particular tasks involved in, the employment: The Applicant was employed as a Customer Service Officer by DHS on a full-time basis. This primarily involved the Applicant working at his desk. His duties were described by Recovre in the ergonomic workstation assessment conducted on 13 May 2014 (Exhibit R2, page 35) as: “Duties predominantly include constant computer based processing duties, while simultaneously liaising on the phone”. The Tribunal notes that the Applicant had ergonomic workstation assessments undertaken in 2008, 2009, 2010, 2012, 2013 and 2014.  Taking into account these assessments, it is concluded that for most of the duration of his employment the Applicant’s workstation was ergonomically sound with only limited adjustments to his workstation being required.

    (c)Any predisposition of the employee to the ailment or aggravation: The medical evidence set out earlier in this decision indicates that the Applicant had a history of back pain dating back to approximately 2008. The medical evidence indicates that the Applicant had degenerative changes in his shoulder. As noted above, the results of an MRI conducted on 28 January 2016 showed “mild degenerative change of acromioclavicular joint” as well as “mild bursal thickening but no evidence of a high grade rotator cuff tear” (Letter to Mr Petanceski from Perth Radiological Clinic, Exhibit R1, page 99). As also noted above, Dr Liddell noted that the Applicant had “degenerative changes” in his cervical spine which could be rendered symptomatic by his use of two computer screens (Independent Medico-Legal Report of Dr Liddell dated 1 April 2016, Exhibit R1, page 103). Dr du Plessis, however, attributed the onset of symptoms in May 2014 to “an acute event of brachial neuritis” which he stated, “is not a work-related condition and is best described as being idiopathic or of unknown cause”. (Exhibit R1, page 127).

    (d)Any activities of the employee not related to employment: In her submissions and cross-examination of the Applicant, the Respondent’s legal counsel suggested that it was possible that the unsupervised cervical extension exercise undertaken by the Applicant (which the Applicant was told by Recovre to cease doing on 13 May 2014), contributed to the Applicant’s pain. Whilst such a conclusion is plausible, the Tribunal notes the lack of probative evidence on this issue and is therefore unwilling to draw any inference from it.  

    (e)Any other matters affecting the employee’s health: None were apparent on the facts.

13. An evaluation of the factors in s 5B(2) of the SRC Act, together with the evidence presented to the Tribunal, including the medical evidence of Dr du Plessis and Dr Liddell, indicates that the Applicant’s condition was not contributed to, to a significant degree, by his employment. Indeed, the medical evidence indicates that the Applicant’s condition of “sprain of shoulder and upper arm (left)” is due to degenerative changes or an event of acute brachial neuritis that was unrelated to his employment. Indeed, although the medical experts differed in their diagnoses, what is significant and relevant is that both did not believe that the condition was contributed to, to any degree, by the Applicant’s employment.

14. Regarding the relationship between the Applicant’s condition and his employment, Dr Liddell stated that (Exhibit R1, page 103-104):

    It is certainly conceivable that the act of constantly moving his head to look at two computer screens, could “render symptomatic” or make “more symptomatic” the degenerative changes that Mr Chu Yu Chee undoubtedly had in his cervical spine for some years – prior to the onset of his shoulder symptoms. However, on the basis of the available information, I find it difficult to believe that Mr Chu Yu Chee has sustained a significant “injury” at work.

    Although Dr Liddell referred to the possibility of symptoms of an underlying degenerative change being rendered symptomatic by the use of two computer screens, the Tribunal notes that symptoms alone are not enough to indicate the presence of an injury. 

15. Dr du Plessis was also of the opinion that the Applicant’s condition was not related to work. He stated that (Exhibit R1, page 127):

    This condition is not a work-related condition and is best described as being idiopathic or of unknown cause. Many suggestions have been made with regard to the possible cause including viral infections and an autoimmune disorder, but an occupational activity has never been found to be causative.

    I thus do not find either of Mr Chu Yu Chee’s conditions to be related to his occupation.

16. The Applicant expressed a genuine belief that his condition was related to his employment (specifically the use of two computer monitors), but the Tribunal finds that such a conclusion is not supported by the medical evidence outlined above.

17. The Tribunal therefore finds that the Applicant’s condition does not satisfy the definition of an injury in s 14 of the SRC Act, as defined by s 5B(1)(b) of the SRC Act, because his shoulder condition was not contributed to, to a significant degree, by his employment (as required by s 5B(1)(b) of the SRC Act).

    CONCLUSION

18. The Tribunal finds, for the reasons outlined above, that the Applicant did not suffer an injury within the meaning of s 14 of the SRC Act. Consequently, the Applicant was not entitled to compensation under s 16 and s 19 of the SRC Act.

    DECISION

19. The decision under review is affirmed.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle, Senior Member Dr M Evans

.....[sgd]...................................................................

Associate

Dated: 3 May 2018

Dates of hearing:	26 - 28 February 2018
Applicant:	In person: self-represented
Counsel for the Respondent:	Ms Jessica Henderson