Davis and Australian Postal Corporation (Compensation) - [2021] AATA 30

Davis and Australian Postal Corporation (Compensation) [2021] AATA 30 (19 January 2021)
Division:GENERAL DIVISION
File Numbers: 2019/4280, 2020/6508
Re:Alan Davis
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:19 January 2021
Place:Melbourne

The Tribunal sets aside the reviewable the decisions of 6 June 2019 and 14 October 2020 and substitutes the following orders:
(a)In the incident on 12 December 2018, the Applicant aggravated a pre-existing ailment namely arthritis to his right shoulder to a significant degree (“the right shoulder injury”);
(b)the Respondent is liable to pay compensation to the Applicant in respect of the right shoulder injury under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“SRC Act”);
(c)the Respondent is liable to pay compensation to the Applicant for medical treatment and incapacity for work in accordance with sections 16 and 19 of the SRC Act to the present and presently in respect of the right shoulder injury; and
(d)the Respondent pay the Applicant’s reasonable legal costs and disbursements to be taxed.

..........[sgd]..............................................................
R Cameron, Senior Member
Catchwords
COMPENSATION - Whether the Applicant suffered a pre-existing ailment to right shoulder – whether applicant injured right shoulder in fall during employment – applicant found to have pre-existing ailment – arthritis to the right shoulder – fall aggravated pre-existing ailment – whether aggravation contributed to a significant degree by employment – whether entitled to compensation – respondent liable to pay compensation
Legislation
Safety, Rehabilitation and Compensation Act 1988
Cases
Briginshaw v Briginshaw (1938) 60 CLR 336
Fiddian v Comcare [2019] AATA 10
Jones v Dunkel (1959) 101 CLR 298
National Bank v Georgoulas (2013) 217 FCR 382
REASONS FOR DECISION
R Cameron Senior Member
19 January 2021
INTRODUCTION - THE REVIEWABLE DECISIONS

There are two decisions before the Tribunal for which the Applicant seeks review. The first was a decision made on the 14 October 2020 which had the effect of reviewing a previous decision on 6 June 2019. This application is subject of proceeding number 2020/6058. The other decision for determination by the Tribunal is that of 6 June 2019 which concerned an initial determination made on 8 March 2019. This decision is the subject of proceeding number 2019/4280.
The decision made on 14 October 2020 was an “own motion” decision, and as the Respondent correctly contends it puts beyond doubt any question about whether the Tribunal has jurisdiction to consider whether the Applicant is entitled to compensation under the provisions of sections 16 and 19 of the SRC Act.
THE ISSUES BEFORE THE TRIBUNAL
The Tribunal considers that the following issues arise for determination:
(a)Whether the Applicant suffered from a pre-existing injury or ailment affecting his right shoulder prior to 12 December 2018, and if so, what was the diagnosis of that pre-existing ailment affecting his right shoulder;
(i)If so, whether the pre-existing injury or ailment was symptomatic prior to 12 December 2018.
(b)Did the Applicant strike his right shoulder on the concrete after falling from a truck…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 30
Decision Date: 19 January 2021

CaseChat Overview and Summary

This matter concerned a claim for compensation by the Applicant, Mr Davis, against the Australian Postal Corporation. The dispute arose from an incident on 12 December 2018, where the Applicant fell from a truck ladder and landed on his right shoulder. The Applicant alleged that this fall aggravated a pre-existing condition in his right shoulder, entitling him to compensation. The case was heard by R Cameron, Senior Member, of the Tribunal.

The Tribunal was required to determine whether the Applicant suffered a pre-existing ailment in his right shoulder, whether he injured his right shoulder in the fall during employment, and if so, whether this aggravation contributed to a significant degree to his current condition. A further issue was whether the Applicant was entitled to compensation, considering potential exclusions under the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act).

The Tribunal found that the Applicant did indeed fall from the truck ladder and landed directly on his right shoulder. Medical evidence, including reports from an Orthopaedic Surgeon, Dr Jennifer Flynn, indicated that the Applicant had pre-existing, asymptomatic arthritis in his right shoulder. The fall aggravated this pre-existing condition to a significant degree, causing a deterioration that would likely require a total shoulder joint replacement. The Tribunal concluded that this aggravation was contributed to by the Applicant's employment. The Tribunal also considered and rejected the Respondent's defence under section 7(7) of the SRC Act, finding that the Respondent had not satisfied the onus of proving the necessary elements for that defence.

The Tribunal determined that the Applicant had aggravated a pre-existing ailment, namely arthritis to his right shoulder, to a significant degree, and that this aggravation was contributed to by his employment. Accordingly, the Respondent was liable to pay compensation to the Applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the reasons articulated above the Tribunal concludes that on 12 December 2018, Applicant fell from the ladder of the truck as he gave evidence before it. He landed directly on his right shoulder on the concrete. For the avoidance of any doubt in particular, it finds that the incident involved a direct impact to the lateral or outer aspect of the right shoulder or alternatively some other circumstances or mechanism.[13][13] The Tribunal has used this language which is derived from paragraph 13 (c) of the Respondent’s Closing Submissions under the heading "Incident".THE MEDICAL EVIDENCE The Applicant called an Orthopaedic Surgeon, Dr Jennifer Flynn. Two reports were in evidence from Dr Flynn dated 26 June 2020 and 15 October 2020. Dr Flynn’s diagnosis was aggravation of pre-existing asymptomatic right shoulder arthritis, causing significant deterioration for which the Applicant will require a total shoulder joint replacement. In reaching this conclusion she had examined a radiological report being a right shoulder MRI taken on 6 February 2019.[14][14] The MRI is document T 18 of the T documents. In reaching her conclusion she made several observations that are relevant and should be reproduced in these reasons. Dr Flynn stated there is no evidence that the Applicant suffered adhesive capsulitis.[15] In reaching this conclusion she considered the fact that the Applicant’s range of motion was decreased immediately after the injury on 12 December 2018 and has remained so.[16] She also observed that on the day of the injury Dr Shatiq noted abduction of 80°, extension of 10°, flexion of 70° and internal rotation of 10°. This represents an immediate reduction in range of motion. Such immediate reduction in range of motion is not consistent with adhesive capsulitis but is related to an aggravation of shoulder arthritis as a result of a significant fall.[15] This was observed in the results of the MRI of the Applicant’s right shoulder taken on 6 February 2019 where it is stated: "There are no signs of adhesive capsulitis."[16] Dr Flynn in her report of 26 June 2020 recorded the results of a "Physical Examination" that she conducted on 10 June 2020. Under that heading in tabular form precise details of the Applicant’s right shoulder movements in degrees, that she recorded upon conducting that physical examination of the Applicant. It demonstrates as of that date an increased or impaired range of motion in similar terms to those noted by Dr Shatiq on the day of the accident. In her report of 15 October 2020 Dr Flynn provides some further reasons for reaching the conclusion that she does. This was after she had examined a later report of Associate Professor Steadman of 27 May 2020. She observed that the Applicant presented with an acute aggravation of osteoarthritis in the setting of a joint that was previously asymptomatic. This conclusion is consistent with the findings that have been made by this Tribunal. She also, as has the Tribunal, relied upon the results of the pre-employment medical assessment conducted by Dr Chow. She observed that the assessment recorded a normal range of motion of the right shoulder on several occasions. This has not been the case with the Applicant’s right shoulder since the accident on 12 December 2018 at Hamper Creations.

Decision

Reasons for decision

The Tribunal refers to and repeats its observations made above concerning the evidence of the meeting between the Applicant and Mr Haritopoulos on 4 January 2019. It is apparent with the benefit of Mr De Lullo’s evidence that the Applicant definitely fell from the driver’s side of the truck. Either, or both of them, could well have been mistaken as to what occurred during the meeting. Certainly, the account of the fall from the left side of the truck is wrong. It is unfortunate that for instance, Mr Haritopoulos did not see fit to perhaps prepare a statement following the meeting and invite the Applicant to sign it. Had he done so there could have been no room for doubt. For these reasons, the Tribunal does not place any reliance on either parties’ explanation concerning that meeting.CONCLUSION ON THE FALL-THIRD ISSUE FOR DETERMINATION - DID THE APPLICANT STRIKE HIS RIGHT SHOULDER ON THE CONCRETE AFTER FALLING FROM A TRUCK ON 12 DECEMBER 2018? For the reasons articulated above the Tribunal concludes that on 12 December 2018, Applicant fell from the ladder of the truck as he gave evidence before it. He landed directly on his right shoulder on the concrete. For the avoidance of any doubt in particular, it finds that the incident involved a direct impact to the lateral or outer aspect of the right shoulder or alternatively some other circumstances or mechanism.[13][13] The Tribunal has used this language which is derived from paragraph 13 (c) of the Respondent’s Closing Submissions under the heading "Incident".THE MEDICAL EVIDENCE The Applicant called an Orthopaedic Surgeon, Dr Jennifer Flynn. Two reports were in evidence from Dr Flynn dated 26 June 2020 and 15 October 2020. Dr Flynn’s diagnosis was aggravation of pre-existing asymptomatic right shoulder arthritis, causing significant deterioration for which the Applicant will require a total shoulder joint replacement. In reaching this conclusion she had examined a radiological report being a right shoulder MRI taken on 6 February 2019.[14][14] The MRI is document T 18 of the T documents. In reaching her conclusion she made several observations that are relevant and should be reproduced in these reasons. Dr Flynn stated there is no evidence that the Applicant suffered adhesive capsulitis.[15] In reaching this conclusion she considered the fact that the Applicant’s range of motion was decreased immediately after the injury on 12 December 2018 and has remained so.[16] She also observed that on the day of the injury Dr Shatiq noted abduction of 80°, extension of 10°, flexion of 70° and internal rotation of 10°. This represents an immediate reduction in range of motion. Such immediate reduction in range of motion is not consistent with adhesive capsulitis but is related to an aggravation of shoulder arthritis as a result of a significant fall.[15] This was observed in the results of the MRI of the Applicant’s right shoulder taken on 6 February 2019 where it is stated: "There are no signs of adhesive capsulitis."[16] Dr Flynn in her report of 26 June 2020 recorded the results of a "Physical Examination" that she conducted on 10 June 2020. Under that heading in tabular form precise details of the Applicant’s right shoulder movements in degrees, that she recorded upon conducting that physical examination of the Applicant. It demonstrates as of that date an increased or impaired range of motion in similar terms to those noted by Dr Shatiq on the day of the accident.

Ratio Decidendi

Legal Principle Established

By reason of the foregoing matters the Tribunal finds that in the incident on 12 December 2018 the Applicant aggravated a pre-existing ailment, namely arthritis to his right shoulder, to a significant degree and that was contributed to by the Applicant’s employment by the Respondent.IS THE APPLICANT’S AILMENT OR AGGRAVATION THEREOF IS EXCLUDED FROM LIABILITY UNDER SECTION 14 OF THE SRC ACT BY OPERATION OF SECTION 7 (7) OF THAT ACT? Section 7 (7) of the SRC Act need not be reproduced for the purposes of these reasons. There are four elements that must be established by the Respondent to succeed in this defence. Those elements are:(a)the Applicant’s claimed injury is a disease, or an aggravation of such disease, called “that disease” in the last line of this section;(b)the Applicant has made a representation at any time for the purposes connected with his employment that he did not suffer, or had not previously suffered from that disease;[23](c)the representation must be wilful; and(d)the representation must be false.[23] Emphasis added. Having found that in the incident on 12 December 2018 the Applicant aggravated a pre-existing ailment, namely arthritis to his right shoulder to a significant degree, the Applicant’s condition is a disease within the meaning of section 5B of the SRC Act. By reason of this fact the operation of section 7 (7) is invoked. Having been invoked, the next element to be considered in applying section 7 (7) is the question of the representations concerned. It is necessary in construing and applying this part of the language used in the section to determine whether the Applicant made a representation about the same disease, or a disease that was substantially similar.[24][24] National Australia Bank v Georgoulas (2013) 217 FCR 382. Logically, as it has been described, if a respondent seeks to rely upon this section there is a practical onus to satisfy the Tribunal of each of the requirements contained in section 7 (7).[25][25] Fiddian v Comcare [2019] AATA 10 at [91]. The Respondent identified the following representations as having been made by the Applicant and relating to the same or a substantially similar disease to that suffered by the Applicant, which it will be recalled is osteoarthritis of the right shoulder. Details of which have been canvassed in some detail earlier in these reasons.(a)The pre-employment medical questionnaire completed by the Applicant in which he responded to the question: “Do you currently suffer or have you ever had any of the following:”, namely “Any other bone or joint injuries” and “Swollen joints” by ticking the box specifying a “No” response;(b)The Claim for compensation form dated 7 January 2019 in respect of “injury to right shoulder” completed by the Applicant in which he responded to the question “Have you ever had a similar injury/illness?” By providing a “No” response; and(c)The observations made by Associate Professor Steadman in his report as 20 February 2019 in which he recorded a history from the Applicant that “He reports that he had no prior right shoulder or hip complaints”.