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 on 12 December 2018;
(i)If so, whether the Applicant suffered an injury within the meaning of section 5A (1) (b) of the SRC Act.
(ii)If so, what injury did he suffer from?
(c)Alternatively, did the Applicant aggravate a pre-existing ailment affecting the right shoulder (if any) which was contributed to, to a significant degree?
(i)If so, then whether 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.
(d)If the Applicant is entitled to compensation in section 14 SRC Act, has his right shoulder injury continued to the present date?
THE APPLICANT APPLIES FOR A POSITION AT AUSTRALIA POST
The Applicant, having originally qualified as a boilermaker after leaving school at form four, for those of us who remember form four, worked for approximately 20 years as a boilermaker and welder. Desirous of the change of occupation he has in more recent times worked in the security industry as a truck driver.
It was in this context that in late 2018 the Applicant applied for a position as a casual truck driver with the Respondent, Australia Post. He was ultimately successful and commenced his employment on a three-month contract from early November 2018.
THE PRE-EMPLOYMENT MEDICAL
Prior to commencing employment with Australia Post, the Applicant was required to undertake a pre-employment medical assessment. The assessment was carried out by Dr Harry Chow who is a legally qualified medical practitioner.
The medical assessment was undertaken on 31 October 2018 at the premises of an organisation known as “Jobfit Health Group” in Laverton North. A written report dated 2 November 2018 was in evidence before the Tribunal signed by Dr Chow.
As part of the pre-employment assessment, the Applicant completed what was described as a “medical questionnaire”. The Applicant identified pre-existing conditions of asthma, hypertension, rheumatism in both hands and impaired eyesight. The questionnaire was broken up into several parts and asked a significant number of questions about the Applicant’s medical history. Counsel for the Respondent, helpfully in his Closing Submissions, reproduced in tabular form the questions and responses from the Applicant with those responses of significance for the purposes of this application highlighted in bold typeface.[1]
[1] Paragraph 26 of the Respondent's Closing Submissions.
Several of the responses given by the Applicant were false. The false responses included whether he had ever suffered from any work-related disease or claimed workers’ compensation, questions concerning musculoskeletal health, backache, back injury any other bone or joint injury, mental health issues, depression or other nervous problems. In cross examination, the Applicant was searchingly probed on these topics and conceded that he had previously suffered from several of these conditions. He also conceded that he had a substantial prior history of lower back injury from 2009 whilst working for Aldi. This injury was the subject of a workers’ compensation claim against that employer.
When he was re-called to give evidence on this topic, in his words when filling out the form he “did tell untruths”. He had previously applied for positions, got to the interview stage and when he informed prospective employers about his previous history with his back and depression, he was unsuccessful with those job applications. He stated he desperately needed the work given the financial position he was in; in his words “I was untruthful.”
The Respondent contends that given this background of deliberate deception and desperation to secure work, considerable doubt must be cast over the accuracy of the rest of the Applicant’s subjectively reported and demonstrated presentation during the physical examination component of the pre-employment medical assessment.[2] Whilst there is considerable force in this contention and the Applicant’s evidence must be viewed with caution by reason of it, his evidence should not necessarily be rejected. It is understandable that someone who is otherwise truthful, might in the circumstances that the Applicant found himself in where it was difficult to secure employment, succumb to the temptation he did. It is not in any way to be seen as condoning his actions.
[2] Paragraph 35 of the Respondent's closing submissions.
Whilst there is much force in this submission, it seems to the Tribunal that it would have been very difficult for the Applicant to have disguised any pain he experienced when being examined by a legally qualified medical practitioner administering carefully designed tests for the purpose of eliciting whether an applicant was experiencing pain. Also, the Tribunal accepts the Applicant’s evidence that he did not feel any pain when performing these tests, which was recorded by Dr Chow. This view of the Applicant’s evidence is also reinforced by the fact that Dr Chow did not give evidence at the hearing of this application. It is surprising that he was not called to give evidence.
The Tribunal infers that the organisation with which he was apparently connected, the “JobFit Health Group”, regularly performs pre-employment medical examinations and renders other medical services on behalf of the Respondent.[3] He is clearly a witness who is likely to be in the “camp” of the Respondent. No explanation was offered to the Tribunal for not calling him. The Tribunal draws an adverse inference against the Respondent, in the Jones v Dunkel[4] sense, by reason of the unexplained failure to call Dr Chow. That inference being that his evidence would not have assisted the Respondent.
[3] Indeed, after the incident, which is the subject matter of this application, the Applicant saw Dr Shatiq on the direction of his employer. Dr Shatiq signed three Certificates of Physical Capacity which are included in the T documents. His stamp reveals that he is a legally qualified medical practitioner engaged by the "Jobfit Health Group". It appears that whenever the Respondent’s staff are injured or otherwise require medical attention, they are directed to the Jobfit Health Group.
[4] (1959) 101 CLR 298.
The contents of the pre-employment medical assessment are referred to in their entirety. It is broken up into several parts which the examiner is required to complete following the examinations. Several parts of the assessment are relevant for the purposes of this application. Question 11 asks: “Do you have any of the following disabilities or difficulties?” They included “Loss of full arm function”, “Other loss of function”, “Loss of mobility”, “Loss of full movements,” and “Any other problem,” The response recorded to each of these questions was the answer: “No”.
Under the subheadings “Limb function”, “Left Mobility” and “Right Mobility”, “Shoulder” Dr Chow has completed response with the word “Normal”.
Another section headed “Upper limb fitness” contained three sections: the “Sustained above head level reach,” the “Empty Can test,” and “Grip strength”. Reserved under this heading was an area for the examiner to make comments. No comments were recorded by Dr Chow. Presumably, the Applicant undertook these exercises or tests without any concerns noticed by Dr Chow.
Another heading was “Manual handling”. The results of several tasks that the Applicant was required to undertake by the examiner were recorded. For the “Dynamic lift-floor to bench (0-900 MM),” the Applicant completed 16 reps. For “Dynamic lift-bench to shoulder (900 MM-shoulder),” he completed 12.5 reps. There was the “Manual handling technique”. The Applicant achieved all required repetitions including 3 x 12.5 kg waist to shoulder, 10 x 12.5 kg, and 3 x 16 kg floor to bench.
Under the heading “Assessment Summary” Dr Chow’s comments were that the “Candidate achieved all required reps”.
Nowhere in the report did Dr Chow record that the Applicant, at any time whilst undergoing the assessment, experienced any pain in his right shoulder.[5] Had he done so, naturally; one would have expected it to be included in the report. Indeed, it should be noted that the Applicant was found to be suitable for the proposed position of a truck driver, and it also recorded he had satisfactorily passed the medical examination.
[5] This was noted in paragraph 34 of the Respondents Closing Submissions.
Dr Flynn in her evidence, which was not challenged, observed that the tests administered to the Applicant concerning shoulder function in the pre-employment medical were significant tests. She also observed there were no concerns expressed from Dr Chow. She opined that someone with symptomatic arthritis would not be able to perform those tests without pain. Once again, had Dr Chow given evidence he could have been probed on these contentions. For these reasons Tribunal accepts this evidence from Dr Flynn.
Associate Professor Steadman did not give any evidence contradicting Dr Flynn’s opinion on this topic either. As will be referred to later in these reasons, in the section dealing with medical evidence, Associate Professor Steadman when finally furnished with a copy of the pre-employment medical assessment the day before he gave his evidence to the Tribunal, observed that he did not see anything in it that said the Applicant had a restricted range of motion in his right shoulder. He described it as an exceptionally detailed report. He also conceded quite properly, that it showed at that stage the Applicant’s right shoulder was functioning normally. This evidence is also accepted by the Tribunal.
In both his evidence and his statement, the Applicant stated the pre-employment medical examination was the hardest medical he had ever done. He compared this with previous medical examinations he had been subjected to in the Army Reserve by way of comparison.
The Applicant denied he experienced any pain in his shoulder whilst undergoing this pre-employment medical assessment. That evidence is consistent with the findings contained in the assessment itself signed by Dr Chow. The Tribunal accepts the Applicant’s evidence that he did not experience any pain whilst undertaking the exercises that formed part of the assessment.
THE EXERCISE PHYSIOLOGY ASSESSMENT CONDUCTED BY CRAIG WATSON
Mr Craig Watson, an Exercise Physiologist, made a statement on 14 September 2020. He also gave viva voce evidence.
On 14 November 2018, he conducted a functional assessment of the Applicant who by then had been employed at the Melbourne Transport Facility of the Respondent as a truck driver.
Mr Watson said that he obtained a history from the Applicant which included bilateral knee discomfort with the left greater than the right and right-sided shoulder pain described as tendinitis for the past six months. In the witness box Mr Watson readily conceded that he had no memory of what he said or did two years ago and could only go from his notes. He conceded that it is common for someone of the age of 63 to have aches and pains. He stated that he had taken history rather than trying to conduct a diagnosis. He said it was not his role to confirm the diagnosis.
The Applicant denied that he said anything about tendinitis. He readily conceded he mentioned knee problems, but that he had said that such complaint only occurred “now and then”. The Tribunal, having had the opportunity to observe the Applicant, has some doubt that he would have used the word “tendinitis.” The Applicant conceded he was aware of the term as a word but did not know what it is. He said he did not believe he used the term. What he recalls was telling Mr Watson that “my shoulder was a bit sore”. Use of the term “tendinitis” does not seem the sort of terminology that the Applicant would be inclined to use. If he were complaining about pain or discomfort in his shoulder it seems far more likely to the Tribunal, he would have used some layman’s terms such as “a bit sore” as he said he did rather than some relatively sophisticated medical term. The Tribunal accepts his evidence on this question.
Dr Flynn noted in her October 2020 report on this topic that she would lend little weight to such brief comments on the topic of tendinitis, as documented by Mr Watson in his statement, with no other documentation of the history of any symptoms, no thorough clinical examination and in the absence of any investigations performed. The Tribunal agrees with and adopts these observations. Therefore, even if the Applicant did mention to Mr Watson that there had been right sided shoulder pain described as “tendinitis”, the Tribunal would place little or no weight upon such statements.
As part of Mr Watson’s assessment, the Applicant undertook seven different “movement steps” as part of a “movement screen” and six “manual handling tests”, the results of which were recorded in tables forming part of paragraphs eight and 24 of his statement. Some specific observations should be made about the evidence concerning several of the tests administered by Mr Watson to the Applicant.
In the “Shoulder Mobility” test the Applicant scored 0/3. Mr Watson opined that such a score indicates that the Applicant felt pain throughout the movement on one or both sides. The Applicant denied it was particularly painful, and in any event stated that he had never been able to do that sort of exercise because he is very broad across the shoulders, which the Tribunal observed he obviously is. Also, it should not be lost sight of that by then the Applicant was 63 years of age. The capacity to undertake much physical exercise by this age is frequently limited.
In cross examination, Mr Watson readily conceded the Applicant was able to conduct some movements pain free. He also conceded that he had a full range of shoulder flexion.
The Applicant scored 0/3 for the “Trunk Stability Push Up”. It does, Mr Watson attested, assesses upper body strength and core stability. It should be noted that this task requires a participant to perform a push up with their thumbs aligned with their chin and feet on the ground whilst maintaining an even/neutral spine. Mr Watson stated that the Applicant’s score would indicate he experienced pain throughout the movement.
The Applicant, on the other hand, gave evidence that he could not do one push-up and because of that he could not know whether he experienced pain. This contention seems difficult to cavil with.
The Applicant consistently maintained that he did not experience any pain in his right shoulder, or for that matter any shoulder, when he undertook this assessment.
The Tribunal accepts the Applicant’s evidence that he did not experience pain when undertaking the functional assessment with Mr Watson. That he did not experience pain is consistent with Dr Chow’s observations when conducting the pre-employment medical assessment.
Dr Flynn in her report made some observations about Mr Watson’s statement that are apposite to this conclusion. Firstly, she noted that he did not identify any restriction of shoulder flexion. Secondly, there was no description of the location of the pain, with which movements he experienced this pain, nor of a clinical assessment as to the possible cause or diagnosis of any shoulder problems. The Tribunal accepts this contention.
Another matter that should be commented on arises from Mr Watson’s statement itself. This is not to be critical of Mr Watson, but it is a factor in why the Tribunal accepts the Applicant’s evidence that he did not experience any pain whilst undergoing a functional assessment with him. Mr Watson stated his role is to improve the physical function of workers, provide education on safe manual handling, and implement acute injury intervention strategies for workers to reduce the likelihood of long-term injury. He stated that his then employer regularly saw workers who were experiencing pain and worked with them to improve their level of function and avoid potential re-occurrence or reaggravation. These are admirable objectives.
There is no evidence before the Tribunal that Mr Watson reported to anyone the fact that he observed the Applicant experiencing pain when undertaking the various tests that he performed. He did not suggest that the Applicant consult a doctor or a medical specialist. Mr Watson did not suggest that the Applicant was in any way unfit for work as a truck driver, needed to rest or undertake light duties. Alternatively, he did not recommend that the Applicant or his employer adopt measures that might limit the risk of him being exposed to injury.
It is surprising given the description that Mr Watson gave of his role, that if it was obvious to him that the Applicant was experiencing such pain as recorded (and he described in evidence to the Tribunal), that he did not make recommendations to the Respondent, as foreshadowed in his statement, to assist the Applicant to avoid the likelihood of any injuries by reason of any condition from which he may suffer. That he did not do so indicates to the Tribunal that more likely than not he was not concerned about the Applicant’s fitness to perform the duties of a truck driver for the Respondent. Also, it indicates that if he observed that the Applicant did experience pain in during the functional assessment, it was of no real concern to him.
DID THE APPLICANT SUFFER 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 AILMENT?

An MRI of the Applicant’s right shoulder was taken on 6 February 2019 and was in evidence before the Tribunal. Both Dr Flynn and Associate Professor Steadman agreed that it shows moderate glenohumeral osteoarthritis. They both agreed that this condition had developed over some time, most likely some years.
The Tribunal finds that the Applicant suffered from this ailment. The diagnosis is as identified in the MRI of the Applicant’s right shoulder taken on 6 February 2019, namely moderate glenohumeral osteoarthritis.
WAS THE PRE-EXISTING AILMENT SYMPTOMATIC PRIOR TO 12 DECEMBER 2018?
The Tribunal has accepted the Applicant’s evidence that he did not experience any pain during the pre-employment medical examination conducted by Dr Chow. It also acknowledges the fact that Dr Chow did not record the Applicant experiencing any pain when he administered the tests described above during the pre-employment medical. Dr Flynn and Associate Professor Steadman’s evidence concerning the pre-employment medical is also accepted. Together with the other reasons articulated above concerning Mr Watson’s evidence, the Tribunal finds that the pre-existing ailment that the Applicant suffered from in his right shoulder, namely moderate glenohumeral osteoarthritis, was not symptomatic prior to 12 December 2018.
THE APPLICANT’S FALL ON 12 DECEMBER 2018.
Some preliminary observations should be made about the Applicant and his evidence. There were aspects of the Applicant’s evidence that were somewhat vague, and in other respects possibly involved a level of reconstruction. Overall, however the Tribunal found him to be a credible witness. This is notwithstanding the observations made earlier concerning his untruths, or as the Respondent described it “background of deliberate deception” concerning his responses to questions contained in the pre-employment medical examination. It is evidence has been considered very carefully by the Tribunal in the light of such admitted untruths in the past. Some allowance must also be given for the fact that he was educated to a limited level, namely form four at a Technical College and the witness box is an alien environment to him. It is not being unkind to him to describe him as a relatively unsophisticated individual of limited intellectual capacity.
During his employment with the Respondent, the Applicant was driving a truck known as a Dodge Fuso, which is a tray truck with side curtains. Behind the driver’s cab of the Dodge truck is a step ladder, or perhaps more accurately there are rungs which enable a person to climb from the ground onto the back of the truck. There are no handrails, grips or other aids to provide additional assistance and protection for anyone seeking to climb onto the tray of the truck using such ladder or rungs. He made a delivery and pick up to a company known as “Hamper Creations” in Tullamarine, at approximately 12.00pm on 12 December 2018. The purpose of the visit to Hamper Creations was to deliver what are known as empty “cages” and pick up cages fully loaded with goods packed for delivery by the Respondent. The cages are loaded and unloaded from the back of the tray truck by a forklift. The cages are secured on the tray of the truck by pins which are inserted, or removed, as the case may be, when a cage is loaded or unloaded.
Present at the premises of Hamper Creations on 12 December 2018 was a forklift driver employed by Hamper Creations, Maurice De Lullo. Mr De Lullo gave evidence at the hearing of the application. He was tasked with loading and unloading the cages from the tray truck driven by the Applicant on that day.
Upon the Applicant’s arrival, Mr De Lullo removed the empty cages from the back of the truck. Once the empty cages had been removed by the forklift driver, the Applicant using the driver’s side ladder or rungs climbed onto the back of the truck in order to remove the pins. This then enabled the forklift driver to load the truck and slide full cages over to the other side of the tray. Whether the Applicant used the driver’s side or the passenger’s side ladder to climb onto the back of the truck assumed some importance in the evidence that was given. More will be said about this later.
As the Applicant was climbing from the back of the truck down the ladder, he had his right boot on the top rung and his left boot on the bottom rung. He said in his statement and his evidence that the sole of his right boot got stuck on the top rung. As he tried to remove his right boot, he lost balance causing him to fall to the ground. As he fell, he twisted or perhaps more accurately, tried to pivot his body. He said the reason for this movement was to limit the risk of landing on the back of his head. The surface, it must be noted, was a concrete driveway. It is understandable that one would take steps to try and minimise the risk of striking one’s head on the concrete of the driveway. The Tribunal accepts his evidence about this.
The Applicant said in both his statement and evidence from the witness box, that he landed mainly on the front part of his right shoulder. The email, which was Annexure 3 to his statement of 6 March 2020, made reference to putting his left hand out, presumably during the fall. It did not say that he landed on any part of his left hand or for that matter his left arm. He was adamant however, that he fell on his right shoulder.
This was explored at some length in cross-examination. He stated that as he was falling and he twisted his body, he had his right arm tucked in. The reason for this was so- that it would take the impact. His evidence to some extent did shift on this topic of his left hand when in the witness box. It was put to him that there was an inconsistency in the reference to his left hand in the email with his evidence otherwise given in his statement, and from the witness box, which did not refer to it. Therefore, it was suggested following an investigation undertaken by Mr Haritopolous from the Respondent that he had said to Mr Haritopolous that the initial impact that broke his fall was his left hand. This was quite categorically denied by the Applicant. He conceded he put his hand out to some extent but did not admit that it broke the fall as recorded by Mr Haritopolous in his statement of 3 September 2020 and from the witness box.
The Applicant stated that when he landed, his right shoulder hurt when it struck the concrete drive. He did not hear a crack or experience anything else. He remained on the ground for approximately 10 seconds.
In his further witness statement of September 2020, the Applicant strongly denied that he said the fall was from the passenger side of the truck. He also denied the allegations concerning his left hand. He readily conceded that his left hand hit the concrete but did not break the fall. Additionally, he also acknowledged that some skin came off the palm of his left hand.
Mr Haritopolous also recorded in his statement and from the witness box, that in discussions he had with the Applicant on 4 January 2019 he was shown the ladder on the passenger side of the truck and told that the fall was from that side.
Mr De Lullo made a statement on 27 October 2020 and gave viva voce evidence. The Tribunal found him to be a completely credible witness who had no reason other than to tell the truth. Mr De Lullo was present at the premises of Hamper Creations in December 2018 and on the day that the Applicant fell off the truck. A description of the Applicant was given by him in his evidence. He said that he saw the Applicant fall off the side of the truck on to the concrete. The Applicant in his evidence said that Mr De Lullo was approximately two to three metres away from where he fell. There was nothing in Mr De Lullo’s evidence that was inconsistent with this estimate.
After seeing the Applicant fall off the truck Mr De Lullo asked him if he was okay. He described seeing the Applicant climbing down the ladder from outside the driver’s side of the truck. This was completely consistent with the evidence of the Applicant on this question. He described the ladder, or rungs, as a couple of little steps that go up to the tray. He was unable to say otherwise how the Applicant fell. He stated amongst other things “I thought this guy may have hurt himself and I felt sorry for him”. Both the Applicant and Mr De Lullo gave evidence that upon seeing the Applicant fall to the concrete Mr De Lullo asked him “if he was okay”.[6] The Tribunal accepts his evidence which corroborates that of the Applicant. This evidence confirms that the Applicant fell and that it was from the right-hand side of the truck. Mr De Lullo’s observations that he thought the Applicant may have hurt himself are consistent with a fall resulting in some considerable impact as was described by the Applicant.
[6] Mr De Lullo gave his evidence both in his witness statement and from the witness box during the course of his cross-examination.
Given the evidence of both the Applicant and the corroboration provided by Mr De Lullo, the Tribunal accepts the Applicant’s evidence concerning the circumstances of the fall.
On the same day as the fall, a document was completed by an officer of the Respondent Mr Russell concerning the fall known as “Safety Event/Investigation – Output Form”. That document recorded the incident as occurring when the Applicant was climbing off the back of the truck, his boot got caught in the bottom rung and that he fell off the vehicle.[7] The Applicant landed on his right shoulder and hip. It is a contemporaneous record or relatively contemporaneous, certainly made on the same day, no doubt when the events of the day were fresh or relatively fresh in his mind. It is largely consistent with the evidence of the Applicant in both his statement and from the witness box. It does not make any reference to either a left hand or left arm. To that extent, it does largely corroborate the Applicant’s version of the fall and is consistent with a finding that the Applicant fell on his shoulder directly as he said in his evidence.
[7] In his statement at paragraph 27 he contended the report is wrong to the extent it says his foot got caught in the bottom rung. It was the top rung. He gave similar evidence to this effect from the witness box. Apparently, the Applicant provided details to the person who then typed those details into a computer so that it was recorded in the system electronically enabling the form to be reproduced at any time in a paper format. The Applicant stated the person who did it he had seen before but could not recall his name. The Tribunal infers that it was person named in the form as reporting it, namely Stephen Russell. Russell did not give evidence. The Applicant's evidence concerning the completion of this form was not challenged. It is accepted by the Tribunal. The Tribunal also observes that the SAFETY EVENT/INVESTIGATION-OUTPUT FORM reproduced in the T documents has noted at the right-hand foot of the page that it is "1 of 2". The second page was not produced.
His version of the fall is also corroborated by a Certificate of Physical Capacity signed by Dr Shatiq also on 12 December 2018.[8] He saw the Applicant on the day of the accident. Dr Shatiq also recorded that the Applicant fell on concrete onto his right shoulder. He also ordered X-rays of the shoulder.
[8] Document T 5 of the T documents.
Another consultation with Dr Shatiq occurred the next day on 13 December 2018. A Certificate of Physical Capacity recorded that he fell on his right shoulder on concrete on 12 December 2018 from a height of about 2 feet. The results of the X-ray are recorded as “Nil fracture”.[9] The details of the accident recorded in both of these documents soon after it occurred are consistent with the evidence given by the Applicant in his statement and the witness box. There is no reference in either document to his left hand or arm.
[9] This certificate is document T 6 of the T documents.
As for what the Applicant told Mr Haritopolous, the Tribunal considers that more likely than not either the Applicant, Mr Haritopolous or both of them were mistaken concerning the account of the fall given and recorded during the course of the meeting on 4 January 2019. (Also as mentioned in his email to Mr Poulopoulos of the same day.[10]) As for the evidence concerning the left hand or left arm, whilst the Applicant’s evidence did slightly shift, the Tribunal believes that the Applicant’s version of events in landing on his right arm was correct. It is accepted by the Tribunal. Frequently, when people suffer trauma in its various forms, their recollections can be faulty. However, notwithstanding some aspects of their evidence as in this case of the Applicant, bearing some inconsistencies it does not mean that they are fundamentally mistaken as to the key ingredients of the event. In this case the Tribunal believes that more likely than not the Applicant falls into this category. It does, however, accept that he fell directly onto on his right shoulder as he said.
[10] Document T 8 of the T documents.
THE IMMEDIATE POST FALL EVENTS
Following the fall after having the engagement with Mr De Lullo the Applicant, as he put it, got up, dusted himself off and responded that he thought so. He then continued to load the truck. Upon completion of the loading he closed the curtains and entered the cabin. His evidence was that he then contacted the transport office to get more work and had two more pickups to attend to for the rest of the day.
As the truck was full, he commenced driving back to the Australia Post transport centre in West Sunshine. During this return journey he attempted to use his right arm. When doing so he experienced what he described as a stabbing pain in his right shoulder, left side on the bicep muscle and then continue aching like a bad toothache. He arrived at the transport centre in West Sunshine between 14.00 and 14.30. In his words, he got the truck unloaded with his right shoulder still aching. Upon completion of those tasks he parked the truck and reported the incident to his supervisors.
As noted earlier upon making such report, the Safety Event/Investigation-Output Form was completed by another employee of the Respondent.
The Applicant was then taken by Mr Karalis of the Respondent (who is described in the Safety Event/Investigation-Output Form as the “Responsible Person”) to the Jobfit Health Group medical clinic in Laverton North where he was seen by Dr Shatiq. The details of that consultation were referred to previously. Dr Shatiq completed a Certificate of Physical Capacity.
An X-ray of the right shoulder was taken the next morning on 13 December 2018. Dr Shatiq as noted earlier recorded the results of that X-ray as revealing no fracture.
Dr Shatiq signed a further Certificate of Physical Capacity after consulting the Applicant on 24 December 2018.[11] The diagnosis was described as a right shoulder strain arising from a two-foot fall onto concrete. He recommended a review two weeks later.
[11] Document T 7 of the T documents.
Mr Poulopoulos made a statement on 11 September 2020 concerning a conversation he had with the Applicant in a smoking area in the Respondent’s Melbourne Transport Facility, at West Sunshine. Present in the smoker’s area were himself, the Applicant and one Mr Karalis. In his statement and his evidence, he said that the Applicant put his hand on his right shoulder, started rubbing it and said words to the effect that he had “smashed his shoulder a few years back”. After making this statement he walked off. Mr Poulopoulos in his cross-examination said that it was a strange comment and as he put it “well, it kind of stuck”. In cross examination he said he made a note of the conversation on a Post-it note and left it on his computer. It was then relied upon by him in drafting his email of 9 January 2019 which was in the evidence and referred to in paragraph 9 of his statement.
The Applicant steadfastly denied making such a statement.
Mr Poulopoulos said that Mr Karalis did not hear the words uttered by the Applicant because he was too busy talking. He did not say who he was talking to. He did not identify precisely how many employees were in the smoking area at the time. It was only stated that there were other employees present including himself, the Applicant and Mr Karalis. Mr Karalis did not give evidence at the hearing of this application. He stated that they were all standing around having a cigarette and a casual chat when the Applicant arrived.
The Tribunal prefers the Applicant’s version of the event, and his denial of making such a comment. There are several reasons for this. There is just no evidence, nor does it seem to have occurred that his shoulder was “smashed” a few years previously. There just was no such trauma suffered by his shoulder. Further, the context of the conversation seems rather odd. One finds it hard to imagine that the Applicant would simply walk up and, in a very short time without any prompting or lead in, make the comments that he is said to have made. There was no reason to make such a comment. Also, the Tribunal considers that it is possible that in a casual environment such as a smoking area with several people speaking at once, any comment that was made was probably misunderstood. Given Mr Poulopoulos’ admission that he was engaged in casual chat with all the other people present in the designated smoking area, it must be considered more probable than not that he would not have been paying much attention to what the Applicant said. Therefore, the Tribunal places no reliance upon this evidence from Mr Poulopoulos and accepts the Applicant’s evidence that he did not make the statement concerned.
Mr Haritopoulos who was employed by the Respondent as a Postal Transport Coordinator at the Melbourne Transport Facility in West Sunshine was asked to investigate the fall suffered by the Applicant on 12 December 2018.
As part of that investigation Mr Haritopoulos met with the Applicant on or about 4 January 2019. He has made a statement dated 3 September 2020 which was in evidence before the Tribunal. He recorded that the Applicant informed him that he had lost his footing causing, him to fall. His reaction was to twist his body when falling as to avoid striking his head. This version of the events is largely consistent with that given by the Applicant as noted previously.
Where the differences emerge is that Mr Haritopoulos records in his statement and gave evidence to the same effect from the witness box, that the Applicant stated he used his left hand to break his fall. After landing on his left hand, he then rolled onto his right shoulder. It was the roll onto his right shoulder the Applicant claimed was the cause of his injury. He alleges that he got the Applicant to re-enact the fall. He consistently maintained in both his statement and from the witness box that the Applicant did not inform him that he fell directly onto his right shoulder. Additionally, as noted above he also said he fell from the passenger side of the truck.
The Applicant steadfastly denied this version of the events both in his further statement and from the witness box. He particularly said that he informed Mr Haritopoulos that the fall was from the driver’s side of the truck. This is consistent with the evidence given by Mr De Lullo, which is accepted by the Tribunal. It is appropriate to note that Mr Haritopoulos did not give evidence of contacting anyone at Hamper Creations. A letter of 6 June 2019 from the Respondent’s Reconsideration Delegate to the Applicant,[12] stated that investigations had been made by it with Hamper Creations. Those investigations were unable to locate the forklift driver and no CCTV footage of the incident was available. It is surprising that evidence to this effect was not given at the hearing of the application by Mr Haritopoulos or another officer of the Respondent who undertook such investigations. One has to question the adequacy of such investigations given that the Applicant ultimately was able to locate Mr De Lullo, procure a statement from him and secure his attendance at the hearing of the application.
[12] Document PT 25 of the T documents.

The Applicant also conceded that he did say that he had his hand stretched out when he fell but it was close to his body. His left hand did hit the concrete, but it did not break the fall. This explanation is probably where some level of confusion arises as to what was said and what was recorded, and the meaning of it all.
There was a feature of Mr Haritopoulos’ statement that was puzzling that was not explored during his evidence. In the email referred to in paragraph five of his statement, he states that he had to get the Applicant “to re-enact the fall”. However, in paragraph six of the statement he observes that he “could not ask the Applicant to climb on the ladder to re-enact the incident because of his physical limitations”. He gave similar evidence from the witness box that he could not ask the Applicant “to physically go up the ladder”, he simply asked him to explain. On its face there is an inconsistency between the contents of paragraph five and paragraph six - paragraph five says there was a re-enactment but paragraph six and his oral evidence says there was not. It was not put to Mr Haritopoulos why there was this apparent inconsistency. That is puzzling. However, the Tribunal considers that because of this unresolved question, very limited weight can be placed on his evidence.
Also, unfortunately, the issue of a re-enactment conducted by Mr Haritopoulos and discussed in his email of 4 January 2019 was also referred to by Associate Professor Steadman in his report of 23 October 2020. Relying upon these comments he observed that mechanistically it was difficult to sustain how the Applicant’s right shoulder injury occurred.
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.
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.
Therefore, in the case of the Applicant it is the aggravation of the underlying disease that has contributed to the stiffness in his right shoulder that he now experiences. In the absence of the fall at Hamper Creations on 12 December 2018 it was unknown when or if the Applicant’s right shoulder condition may have become symptomatic in the future. Critically, she observed, the injury has altered the natural history of the right shoulder condition, which may have continued to be a symptomatic for many years if not for the incident of 12 December 2018.
Counsel for the Respondent in his closing submissions contended that the underlying basis for Dr Flynn’s opinion is highly questionable.[17] This was because such opinion was predicated on two relevant assumptions, namely:
(a)prior to the fall the Applicant’s right shoulder was asymptomatic; and
(b)the fall resulted in a direct impact to the outer or lateral aspect of the right shoulder.
[17] Paragraphs 94 and 95 of the Respondent’s Closing Submissions.
As outlined above, the Tribunal has found these assumptions to be correct. Therefore, much of the criticism of Dr Flynn’s report levelled by the Respondent falls away. This is a reason why the Tribunal prefers the opinions expressed by Dr Flynn.
There were three reports in evidence from Associate Professor Steadman dated 20 February 2019[18], 27 May 2020 and 23 October 2020.
[18] Document T 20 of the T documents.
Associate Professor Steadman also had before him the results of an MRI of the Applicant’s right shoulder. He observed that it shows advanced degeneration without any significant acute injury features. He concluded that the Applicant suffers from a disease of the right shoulder, namely osteoarthritis. He opined that the Applicant’s right shoulder had gone on to suffer what is known as “frozen shoulder” which can sometimes lead to progressive stiffness. In this case such stiffness is likely to be permanent due to the underlying osteoarthritis. With respect to frozen shoulder he observed that it is also a disease process but can be secondary to a traumatic event, or it can have a spontaneous onset without trauma.
Upon conducting a clinical examination of the Applicant, Associate Professor Steadman observed that he had a restricted range of motion. This is consistent with the observations of Dr Shatiq and Dr Flynn. He considered such restricted range of motion may have been due to the osteoarthritis. However, he acknowledges it is highly likely the pre-employment medical showed a normal range of motion much like the left shoulder prior to this injury. It is known from examination of the pre-employment medical signed by Dr Chow, as noted above, that in fact the Applicant did have a normal range of motion. More will be said later about this fact, but it is surprising that Associate Professor Steadman was not furnished with the results of the pre-employment medical signed by Dr Chow as part of the materials accompanying the letter of instruction to him seeking his several reports.
In response to a question whether the Applicant suffered from an underlying or pre-existing medical condition that has been substantially aggravated by his employment, Associate Professor Steadman said the issue would really be verification of the injury.[19] He then stated in response to a question asking him whether he considered the employee’s employment continued to contribute to his right shoulder condition that there were two scenarios to consider.[20]
[19] This question was part of, question 6 of his first report dated 20 February 2019.
[20] This response was made to question 8 in his first report of 20 February 2019.
The first, that there was no fall and that he now has stiffness in the shoulder due to osteoarthritis in the secondary frozen shoulder. The Tribunal is concerned that a responsible expert should be raising the question of whether or not a fall in fact occurred. He was furnished with several documents which recorded that there had been a fall. These documents specifically were the Safety Event/Investigation-Output Form number 50821975, the Certificate of Physical Capacity signed by Dr Shatiq on 7 January 2019, which recorded a fall on concrete, and the Claim for Rehabilitation and Compensation also dated on 7 January 2019.
There is no suggestion that the medical certificate signed by Dr Shatiq was anything other than a genuine recording of the results of his examination of the Applicant (which it should be noted again first occurred on the day of the accident on 12 December 2018). To make this statement questioning whether a fall had in fact occurred, has serious consequences for the Applicant. To do so in the face of documents that said there had been a fall onto concrete by the Applicant is highly concerning. It is implying at the very least that aspects of the documentation submitted to him were questionable. Whether there was a fall is a matter for the Tribunal as is the case here.
On this note, Associate Professor Steadman said it is possible that if the Applicant fell, he suffered an aggravation. Therefore, it was open to find if there was a fall the Applicant had aggravated pre-existing degenerative diseases and has now lost some range of motion. He considered the issue really was verifying whether a fall occurred and whether there were any witnesses. The Tribunal observes that this question has now been answered, by reason of the evidence and other material before it in the hearing of this application as has been noted above.
Associate Professor Steadman’s report of 23 May 2020 observed little or no change in the Applicant’s right shoulder with his still-persistent loss of movement and pain. He also observed the loss of range of motion experienced by the Applicant. He expressed the opinion that current symptoms in the Applicant’s right shoulder are related to the fall on 12 December 2018, whilst the shoulder itself suffers from underlying severe arthritis which he considered to be substantial.
Unlike Dr Flynn, Associate Professor Steadman considered that the incident on 12 December 2018 had not altered the course of the Applicant’s underlying arthritic condition that would not be within the purview of its natural history. Therefore, it is that condition which has reduced his shoulder movement. Similarly, to Dr Flynn he concluded that additional treatment would be likely to include a surgical replacement.
However, Associate Professor Steadman went in the witness box and conceded that if the Applicant had a direct fall on to his right shoulder, he would be more likely to have aggravated it. He even went so far as to say that if prior to the fall the Applicant had no pain in the right shoulder and now is in need of a shoulder replacement, it shows the fall was a significant aggravator of the condition. This concession is consistent with the findings of the Tribunal concerning the circumstances of the fall that the Applicant experienced on 12 December 2018. It is a reason why the Tribunal also finds that there was an aggravation of the underlying disease of osteoarthritis in the Applicant’s right shoulder.
In his report of 23 October 2020, Associate Professor Steadman opined that the only form of surgery the Applicant would benefit from in the right shoulder is a right shoulder replacement with or without glenoid replacement. Such a shoulder replacement would be for osteoarthritis and, unlike the opinion of Dr Flynn, not represent a direct consequence of the incident on 12 December 2018.
There is another matter arising from the contents of Associate Professor Steadman’s reported 23 October 2020 that warrants comment. In response to the third question asked of him he made a comment about a matter which he was not requested to address. It is surprising that an expert would do so. It refers to the email sent by Mr Haritopoulos on 4 January 2019 concerning a re-enactment of the fall. Relying upon the re-enactment referred to in that email he stated that it appeared difficult to sustain mechanistically that the right shoulder injury occurred. It is quite apparent that he was not furnished copy of Haritopoulos’ statement which contained an internal inconsistency because he could not ask the Applicant to climb on the ladder to re-enact the incident because of his physical limitations. It is another example of an expert entering into the realms of factual matters which does not assist the Tribunal.
In several respects, Dr Flynn and Associate Professor Steadman reach considerable comity in their opinions. Associate Professor Steadman’s comment that the mechanism would appear to be consistent if he fell, and that he suffered an aggravation, is consistent with the opinion of Dr Flynn. The opinion that if there was a fall he has aggravated a pre-existing degenerative disease and has now lost some motion (which he clearly has since the day of the incident on 12 December 2018), was dependent on verifying whether a fall occurred and whether there were any witnesses. Again, that question as noted earlier, has been answered by the Tribunal. The fall did occur as described by the Applicant.
Associate Professor Steadman also observed the results of the pre-employment medical which he did not have. When he was in the witness box, he gave evidence that he was finally provided with a copy of the pre-employment medical only the day before. Indeed, his report of 23 October 2020 states the pre-employment medical was not attached in the brief to review the assessing practitioners’ commentary regarding the musculoskeletal findings. This is surprising indeed. An examination of the other two reports prepared by Associate Professor Steadman also revealed that he was not furnished with the pre-employment medical system report of Dr Chow.[21] He did not call for its production. However, in the supplementary report of 23 October 2020 he seems to accept the history given to him by the Applicant that the pre-employment medical verified that he had a full range of movement. Nowhere in the report in any way does he challenge this history about the range of movement.
[21] Unfortunately, no letters of instruction that were provided to Associate Professor Steadman were in evidence before the Tribunal. He did in each report identify "Documentation Reviewed" and enumerator Beach specific question that he had been requested to answer. He did provide a "Summary" or "History" prior to providing answers to each of the specific questions asked of him. However, it would have assisted the Tribunal if the letters of instruction were included in the evidence before it so that it could be verified precisely what he was requested to do and what assumptions he was asked to make, if any.
In the witness box, Associate Professor Steadman observed from his reading of the pre-employment medical assessment he did not see anything that showed the Applicant having a restricted range of motion. He considered the tests that the examiner conducted on the Applicant. He observed that the report demonstrated that at that stage the Applicant’s shoulder was functioning normally. This concession properly made by Associate Professor Steadman when he was in the witness box, and had the benefit of reading the pre-employment medical assessment, is a further reason for reaching the conclusion that prior to the incident on 12 December 2018 the Applicant’s right hand shoulder was asymptomatic.
It is also puzzling that when one carefully examines Associate Professor Steadman’s reports it appears that he was not furnished with the Medical Certificates prepared by Dr Shafiq on 12, 13 and 24 December 2018. It is all the more puzzling, given the observations made in paragraph eight of his report of 20 February 2019 that there were two scenarios to consider, one being that there was no fall. Had he been furnished with such reports which it will be recalled contain details about the incident concerned, it may well have affected whether or not he expressed such an opinion. No explanation was offered as to why Associate Professor Steadman was not provided with this material. As noted above, copies of the letters of instruction to him were not in evidence before the Tribunal.
The Medical Certificates prepared by Dr Shafiq on 12, 13 and 24 December 2018 together with the pre-employment medical were furnished to Dr Flynn. The failure to furnish such documents to Associate Professor Steadman is a reason why the Tribunal prefers the opinions expressed by Dr Flynn, although not exclusively.
Dr Flynn considered that post traumatic type adhesive capsulitis may take many weeks or months to develop, with initial pain reported but not usually an immediate loss of range of motion as occurred to the Applicant. In this case, she contends that the Applicant presents with an acute aggravation of osteoarthritis in the setting of a joint that was previously asymptomatic. This was evidenced by the pre-employment medical revealing a normal range of motion of the right shoulder and documented several times. It should be recalled again that the pre-incident range of motion in the Applicant’s right shoulder has been accepted by the Tribunal and findings made accordingly. She considered this type of acute aggravation of osteoarthritis is very common and either usually settles down to the baseline level or persists with a permanent alteration in the underlying condition as in the case of the Applicant.
The Tribunal observes that both experts do agree that there has been a permanent alteration in the underlying condition of the right shoulder and as Associate Professor Steadman described it, the Applicant is likely to have permanent restrictions with right arm activity, or put another way, has now lost some range of motion.[22] (He also described a persistent loss of movement and pain. In the witness box he described it as a “huge reduction in range of motion”). Associate Professor Steadman’s opinion is consistent with Dr Flynn’s opinion that in the case of the Applicant it is the aggravation of the underlying disease that has contributed to the stiffness.
[22]Associate Professor Steadman also described a persistent loss of movement and pain. In the witness box he described it as a “huge reduction in range of motion.”

The Tribunal accepts the contention of Dr Flynn that in the absence of the injury of 12 December 2018 it is unknown when, or if the right shoulder condition may have become symptomatic in the future. It prefers her contention that the injury has altered the natural history of the right shoulder condition, which may have continued to be asymptomatic for many years if not for the incident of 12 December 2018. Associate Professor Steadman did not consider this hypothesis and provide an opinion based upon appropriate foundation for rejecting it. It is another reason why the Tribunal prefers the opinion expressed by Dr Flynn.
Another reason why the Tribunal prefers the opinions expressed by Dr Flynn to those of Associate Professor Steadman concerns the description adopted by him of the arthritic condition in the Applicant’s right shoulder. In his report of 27 May 2020 responding to the third question asked of him, he opined that the Applicant’s right shoulder “suffers from underlying severe arthritis”. In the witness box he said the radiologist reported it was between moderate and severe. However, the MRI did not anywhere use the term “severe”. The radiologist’s report stated there was “moderate glenohumeral osteoarthritis”. Nowhere did he use the term “severe”. The Tribunal is unable to accept from this material that it was a severe case. There is certainly no doubt it was moderate as the MRI says so. However, to say it is severe, with due respect, is simply going too far. Dr Flynn, on the other hand, accepted the finding of the radiologist who performed the MRI examinations and the finding that there was moderate glenohumeral osteoarthritis in the Applicant’s right shoulder.
Therefore, the Tribunal also accepts Dr Flynn’s opinion that the Applicant’s employment was a material cause and a significant contributing factor to a significant deterioration in the clinical status of the right shoulder associated with an aggravation of underlying, asymptomatic right shoulder arthritis.
Given these findings, both experts agree that the Applicant requires a total right shoulder joint replacement. Associate Professor Steadman considers that such requirement was not caused by the incident on 12 December 2018.
CONCLUSION ON WHETHER THE APPLICANT SUFFERED FROM AN INJURY OR AGGRAVATED A PRE-EXISTING AILMENT
Both doctors agree that an examination of the medical images reveals no significant acute injury features. There are no fractures.
By reason of the foregoing consideration of the medical evidence, the Tribunal considers and finds that the Applicant aggravated a pre-existing ailment, namely osteoarthritis of the right shoulder joint. Neither of the experts seriously contended that it was an injury in the relevant sense, particularly given that there were no signs of acute injury features or fractures in the medical imaging that both of them had examined and which was the evidence before the Tribunal, that would enable the Tribunal to conclude that it was such an injury within the meaning of section of 5A (1) (b) of the SRC. Act.
DID THE APPLICANT AGGRAVATE A PRE-EXISTING AILMENT AFFECTING THE RIGHT SHOULDER (IF ANY) WHICH WAS CONTRIBUTED TO, TO A SIGNIFICANT DEGREE?
The Medical imaging considered by both experts and which was in evidence before the Tribunal revealed the existence of pre-existing osteoarthritis. Both experts readily agreed that this condition had developed over some time.
By landing on the concrete as the Applicant did from the rungs on the side of the truck, his shoulder struck the concrete, there was some impact.
The consideration of the expert medical witnesses’ evidence is referred to and repeated. Given the factual findings made by the Tribunal together with the consideration of the evidence from Dr Flynn and Associate Professor Steadman, the Tribunal answers this question as yes.
Dr Flynn expressed the opinion in numbered paragraph five of her report of 26 June 2020 that the Applicant’s employment was a material cause and a significant contributing factor to a significant deterioration in the clinical status of his right shoulder associated with an aggravation of underlying asymptomatic right shoulder arthritis.
Associate Professor Steadman in his first report dated 20 February 2019 at numbered paragraphs seven & eight responding to questions addressing this consideration, identified two scenarios. The first scenario has been eliminated by reason of the findings of fact made by this Tribunal. The second scenario, which the Tribunal accepts, is that there was a fall and the Applicant aggravated a pre-existing degenerative disease leading to a loss of some range of motion. That loss of range of motion has been well documented in these reasons by reference to the range of motion recorded in the pre-employment medical signed by Dr Chow when compared with the range of motion identified in the relevant reports of Dr Shatiq, Dr Flynn and Associate Professor Steadman.
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”.
Much reliance was placed by the Respondent upon some events that occurred in the State of Georgia in the United States in late 2016 or early 2017. The Applicant was assisting a companion shovelling crushed rock in his driveway when he evidently strained his right shoulder. He had the shoulder examined at the casualty ward of a local hospital. He believed that an x-ray was taken. The medical imaging revealed nothing more than a strain. He was treated with pain killers and in approximately a month to two months the shoulder returned to normal. He did not seek, nor needed to seek, any medical treatment on his return to Australia.
Additionally, the Respondent relied upon a lower back injury that the Applicant suffered whilst working with Aldi which has been referred to earlier. Finally, it referred to evidence that was adduced both in cross examination and from clinical records subpoenaed from the Applicant’s treating medical practitioners about a depressive condition that he suffered, which was secondary to the lower back injury. Apparently, he saw a psychologist for several consultations concerning this condition. It was further treated with some medication over some years. The Applicant gave evidence which appeared to be confirmed by the clinical records that he had not been prescribed, nor taken antidepressants for some years.
The Respondent, in support of the contention that the representations were false, asserts that the previous right shoulder injury experienced in the United States, or the evidence of right shoulder symptoms at the time of the exercise physiology assessment on 14 November 2018, are grounds for concluding that the representations made by the Applicant were false. Previous observations have been made about the probative value or weight that one might attach to that examination. The Applicant’s evidence was accepted about what occurred in that examination and therefore, this limb of this contention does not have any force or effect.
The Applicant’s claim is for the aggravation of a condition of osteoarthritis. The difficulty in construing and applying the words used in section 7 (7) to the representations made by the Applicant concerns whether it is the same disease or a disease that was substantially similar. The Tribunal did not receive any real evidence on the question. On the question of the incident in the United States and the strain to his shoulder that the Applicant suffered, the Tribunal cannot see that a strain is the same or substantially similar to osteoarthritis. A strain is not a disease in any sense relevant to this consideration. There was no medical imaging, expert medical evidence or anything else that enables the Tribunal to draw a different conclusion.
As for the back injury and the depressive condition relied upon by the Respondent likewise, they cannot be said to be the same or substantially similar to osteoarthritis.
For this reason, the Tribunal finds that the representations were not objectively false or incorrect within the meaning of section 7 (7) of the SRC Act.
The Tribunal should make some observations about whether the representations were wilfully false.
The Tribunal accepts that notwithstanding the admitted untruths that the Applicant engaged in when he completed the questionnaire as part of the pre-employment medical examination, he did not know that he had the arthritic condition in his right shoulder from which he suffers. Much has been said in the submissions filed by both parties about what needs to be satisfied in order for the Tribunal to make a finding that any representations were wilful. The Tribunal accepts that the appropriate approach to adopt in any analysis and application of section 7 (7) requires a consideration of the Briginshaw[26] standard. For the purposes of these reasons it is not necessary to embark upon an excursion into the well traversed area of this aspect of the law.
[26] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.
Bearing this in mind, the Tribunal accepts the Applicant’s evidence that with respect to his shoulder condition he did not see it as an ongoing “injury”. He took it as having resolved itself and therefore, the question that he answered was strictly correct. For the sake of completeness, his evidence that he did not experience any pain during the pre-employment medical examination, or the exercise physiology examinations is also accepted.
Having accepted this evidence in looking at the totality of the matters before the Tribunal it is unable to reach a conclusion that the representations made by the Applicant were wilful within the meaning of section 7 (7) of the SRC Act.
By reason of these matters the defence relied on by the Respondent under section 7 (7) of the SRC Act does not succeed.
Therefore, the Tribunal finds that the Applicant is entitled to compensation from the Respondent under section 14 of the SRC Act.
IF THE APPLICANT IS ENTITLED TO COMPENSATION UNDER SECTION 14 SRC ACT, HAS HIS RIGHT SHOULDER INJURY CONTINUED TO THE PRESENT DATE?
The medical evidence satisfies the Tribunal that the right shoulder condition or injury has continued to the present date. As noted, several times in these reasons, the range of movement (or loss of function) in the Applicant’s right shoulder has been restricted since the fall on 12 December 2018. Both doctors agree there has been persistent loss of movement and pain in the Applicant’s right shoulder which continues to the present and is likely to continue to do so. The Tribunal has made findings as to the circumstances of the fall. It has also made findings as to the circumstances of the injury for the purposes of the SRC Act. Both doctors who gave evidence at the hearing of this application agree that the Applicant’s right shoulder will continue to be limited as they have identified.
Dr Flynn and Associate Professor Steadman both agree that the Applicant will require a total shoulder joint replacement. They differ as to the reasons for such surgery. Associate Professor Steadman considers that it would be the only form of surgery from which the Applicant would benefit. He disagrees with Dr Flynn that such surgery is needed to treat the asymptomatic but pre-existing shoulder arthritic condition. He also put it another way in that surgical placement would be for a non-work-related disease of osteoarthritis. With respect to his reports, the Tribunal did not seriously take him to dispute the need for such surgery and the benefits that it would bring. When in the witness box his evidence was even stronger on the topic. He stated the only way forward is a shoulder replacement. He described the Applicant as having “a progressive decline in shoulder function and therefore, a shoulder replacement is a given.”
Therefore, by reason of the foregoing matters, the Tribunal concludes that the Applicant is entitled to compensation under section 14 of the SRC Act.
The Tribunal also concludes that 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
DECISION
The Tribunal concludes that the correct and preferable decision is to set aside the reviewable the decisions of 6 June 2019 and 14 October 2020. In substitution, it is ordered that:
(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;
(b)The Respondent is liable to pay compensation to the Applicant in respect of the right shoulder injury under section 14 of the 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.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.......................[sgd].................................................
Associate
Dated: 19 January 2021

Dates of hearing: 28, 29 and 30 October 2020

Solicitors for the Applicant:

Counsel for the Applicant

Adviceline Injury Lawyers

Mr Ray Ternes

Counsel for the Respondent: Mr Roy Seit