Connors and Comcare

[2008] AATA 1050

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 1050

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1523 and 2007/3411

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHELLE CONNORS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member

Date17 October 2008

PlaceBrisbane

Decision

The Tribunal varies the reviewable decisions so that Comcare:

1. is liable to pay the applicant compensation, pursuant to s 14 Safety, Compensation and Rehabilitation Act 1988, in respect of her right rotator cuff tendonitis; and

2.    is not liable to pay the applicant compensation to the applicant in respect of her acute calcific tendonitis.

.......................[Sgd].......................

Senior Member

CATCHWORDS

COMPENSATION – Injury – Shoulder injury – Right shoulder rotator cuff tendonitis – Whether applicant’s injury the result of medical treatment – Treatment under supervision of physiotherapist – Connection to treatment – Connection to employment – Liability to pay compensation – Decision varied

COMPENSATION – Injury – Shoulder injury – Calcification tendonitis – Whether the injury the result of medical treatment – Treatment under supervision of physiotherapist – No connection to treatment – No connection to employment – No liability to pay compensation – Decision affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 14

REASONS FOR DECISION

17 October 2008 Senior Member Bernard J McCabe and Associate Professor J B Morley RFD, Member        

1. Miss Michelle Connors, the applicant, lodged claims with Comcare, the respondent, to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for injuries to her right shoulder. Comcare denied liability for her injuries. The applicant asked the Tribunal to review those decisions. A hearing was held on 17 October 2008. We gave an oral decision at the conclusion of that hearing, varying the reviewable decisions so that Comcare was liable to pay Miss Connors compensation for some but not all of her shoulder conditions. The respondent requested written reasons.

2.      The background to this dispute can be set out briefly. Miss Connors was employed by the Australian Tax Office when in 2002 she suffered a sprain to her neck. She lodged a claim with Comcare in respect of her neck sprain that same year. Comcare subsequently accepted liability for her injury. She undertook swimming exercises at the recommendation of her physiotherapist as part of her treatment for her neck strain. Miss Connors claims she developed a right shoulder condition as a result of completing swimming exercises. In 2006 she lodged a compensation claim with Comcare, saying her shoulder condition formed a part of her treatment for her accepted neck strain. She also sought compensation in respect of calcification in her right shoulder. Miss Connors assumed the calcification tendonitis and the sore shoulder following swimming were aspects of the same shoulder condition.

3.      “Shoulder condition” is, of course, not a particularly precise term. We need to work out if there is there more than one component to her shoulder condition or injury.

4.      Dr Jamieson and Mr Cartwright gave evidence at the hearing. The medical evidence we heard from Dr Jamieson in particular, who is the most credentialed expert on the topic and who Assoc Prof Morley questioned closely, suggested there were in fact two conditions. Dr Jamieson speculated that it is possible there was only one condition, the calcification tendonitis, which he was able to observe. He noted that the earlier condition, the right shoulder cuff tendonitis, was diagnosed on the basis of a history that had been given to him. Nevertheless, while he speculated there might have only been one condition, namely the calcification tendonitis that had commenced at some earlier point in 2002, he accepted there were two conditions, with the right rotator cuff tendonitis commencing in 2002 and the calcification tendonitis occurring subsequently.

5.      Is there a connection between the calcification tendonitis in Miss Connors’ shoulder and her swimming exercises? Dr Jamieson also gave evidence in relation to this issue. He was not prepared to accept, despite fairly intensive questioning, that the calcification tendonitis was connected to swimming, or indeed to anything else. He said medical experts simply do not know of or suspect a connection. While it is possible that further study and analysis might establish a connection between calcification tendonitis and physical exertion in the course of activities like swimming, it would be a bold leap for us to make that assumption in these proceedings. It seems to us, therefore, that the calcification tendonitis cannot be connected, on the science, to Miss Connors’ employment. It follows Comcare cannot be held liable to pay compensation for that condition.

6. The rotator cuff problem is a different matter. According to the experts, that arose in connection with Miss Connors’ swimming. Can the condition be linked back to the applicant’s employment, either directly because it was caused by her employment or indirectly because it was caused or aggravated in the course of receiving treatment for a work-related condition? The evidence does not establish a direct connection between the applicant’s work and her condition, but we accept there is a link between the physical exertion in the pool and the development of the condition. The question is whether the physical exertion in the pool can be said to have taken place in the course of medical treatment. If it does, it can fall within the coverage of the Act and Comcare will be liable to pay compensation.

7. “Medical treatment” is defined in s 4(1) of the Act. Paragraph (a) of the definition refers to medical or surgical treatment while under the supervision of a legally qualified medical practitioner. That does not appear to be what we have here, although there is some suggestion that Miss Connors’ doctor may have ordered the treatment. There is also an argument that swimming constitutes therapeutic treatment under para (b). In our view, the relevant provision appears to be para (d), which refers to “therapeutic treatment by or under the supervision of a physiotherapist”.

8.      Is swimming “therapeutic treatment”? We are satisfied that swimming can be a therapeutic treatment. We note a number of cases appear to accept that sending a person to a gym or a swimming pool to undertake an exercise program would constitute therapeutic treatment. The question in this case is whether the treatment was carried out “under the supervision of a physiotherapist”.

9.      The neutral evaluation, which proceeded without the benefit of Miss Connors’ evidence, reached the view that it could not be said that the swimming exercises were carried out under the supervision of a physiotherapist. This was because there was not the degree of direction, control and accountability which one would expect. The evaluation proceeded on the basis Miss Connors was effectively sent off on her own with little more than general instructions about what to do. She was merely provided with recommendations as to things that might be done, in the way that, for example, a general practitioner might occasionally tell you to cut the fat out of your diet and do more exercise.

10.     After listening to the evidence of Miss Connors, we are satisfied the level of supervision was in fact much more detailed than the example given above. There was direction and accountability, notwithstanding the absence of a written program. She spoke of discussing with her physiotherapist, Mr Cartwright, on a regular basis how far to swim, how often to do it, repetitions, how she did it, different exercises and in particular warm-up techniques. While Mr Cartwright did not necessarily remember all the details of those conversations – which is understandable given that six years have passed – he was nonetheless either prepared to accept that he did or unsurprised that he would have said things about stroke selection, techniques, warm-up, frequency, intensity, distances and so forth.

11.     In those circumstances, we are satisfied there was supervision by the physiotherapist, despite the absence of a written program. The absence of a written program is unsurprising at one level, given the frequency of the contact between Miss Connors and her physiotherapist. We accept there was fairly close hands-on supervision as opposed to simply setting a program and allowing Miss Connors to go and pursue it on her own without much in the way of feedback. We are satisfied that it was part of the course of therapeutic treatment by that physiotherapist. Finally, we are satisfied that it was in connection with the treatment of an injury that was work-related.

Conclusion

12.We vary the reviewable decision so that Comcare:

·is liable to pay the applicant compensation, pursuant to s 14 Safety, Compensation and Rehabilitation Act 1988, in respect of her right rotator cuff tendonitis; and

·is not liable to pay the applicant compensation to the applicant in respect of her acute calcific tendonitis.

I certify that the 12 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Assoc Prof J B Morley RFD, Member

Signed: ................................[Sgd].....................................................
  Michael Buckingham, Associate

Date of Hearing  17 October 2008
Date of Decision  17 October 2008
Date of Written Reasons          21 November 2008
Applicant was self-represented
Counsel for the respondent      Mr R W O'Regan
Solicitor for the respondent      Australian Government Solicitor