Doig and Comcare
[2005] AATA 306
•8 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 306
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/193
GENERAL ADMINISTRATIVE DIVISION )
Re PATRICIA MARY DOIG Applicant
And
COMCARE
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date8 April 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s rotator cuff lesion left shoulder sustained in an injury in 1989 is permanent within the meaning of the Safety, Rehabilitation and Compensation Act 1988 and remits the matter to the respondent for assessment as agreed and set out in these reasons.
The Tribunal orders that the applicant’s costs be paid in accordance with s67 of the Act.
................[Sgd].................
M J Carstairs
Member
CATCHWORDS
COMPENSATION – permanent impairment resulting – assessment of degree – loss of range of movement of shoulder – other factors contributing to impairment
Safety, Rehabilitation and Compensation Act 1988 s4, 24
Comcare v Amorebieta (1996) 22 AAR 539
Adelaide Stevedoring Co Pty Ltd v Forst (1976) 50 ALJR 720REASONS FOR DECISION
8 April 2005 Ms MJ Carstairs, Member 1. This is an application by Patricia Mary Doig (the applicant) for review of the decisions of Comcare in relation to a claim for permanent impairment under the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of “rotator cuff lesion left shoulder, tender ribs”.
2. The applicant was represented by Mr M Byrne of counsel instructed by Charltons Lawyers, and the respondent was represented by Mr C Clark of counsel instructed by Dibbs Barker Gosling, Solicitors.
3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits marked A1 – A5 for the applicant and R1 – R2 for the respondent.
BACKGROUND
4. The applicant is aged seventy three. There was no dispute that she sustained an injury to her shoulder and chest area in 1989 in Perth when she was working on a two-year contract of employment with the Department of Community Services and Health. This injury occurred when she tripped while delivering mail and fell heavily against the letterbox. The applicant now receives an age pension.
5. In June 1989 the applicant lodged a claim for compensation and in her claim form she described the injury as rotator cuff lesion (L) shoulder muscle strain contusion (L) shoulder and chest. Liability was accepted for rotator cuff lesion left shoulder, tender ribs in a determination under the Act dated 7 July 1989 (T34).
6. The matter before the Tribunal concerns the applicant’s claim dated 8 May 2003 for permanent impairment (T6). She had previously submitted claims for permanent impairment in 1990 (T4) and 1991 (T5). These earlier claims had been refused. In a determination dated 19 November 2003 (T31) the applicant’s claim for permanent impairment again was refused, this time on the basis that her present impairment of the left shoulder was not work related. This decision was affirmed on 4 February 2004 (T34) and the applicant then sought review with the Tribunal.
7. The issues for the Tribunal are whether the applicant has a permanent impairment as a result of her accepted injury and, if so, an assessment of the rating of that impairment.
EVIDENCE
8. In a statement dated 20 January 2005 (exhibit A1) the applicant said that in June 1989 she was provisionally diagnosed by Dr R Reynolds, general practitioner, with a rotator cuff lesion of the left shoulder and muscle strain of the ribs and was prescribed tranquillisers and anti-inflammatory drugs. She said that in 1990 she was cortisone was injected into the facet joint, to which she said she reacted badly, with symptoms of facial numbness, elevated blood pressure and pain at the back of her head. She said that she continues to suffer from these symptoms.
9. The applicant stated that she experiences restricted movement of her shoulder and arm and accompanying pain. She said that after sustaining the injury in 1989 she had to give up her preferred sports of golf and swimming and she required assistance from her husband in dressing, showering and household tasks.
10. In oral evidence the applicant said that she is right-handed. She said she has never been free of symptoms since she sustained the injury. She said that she has experienced a gradual increase in levels of pain over the years since the injury. She said that after the injury she understood from discussions with medical practitioners that invasive treatment would not assist her condition. She had dealt with her symptoms more conservatively; by using a TENS machine and she said she uses a sling for her left arm when at home and wears a bag over her arm to protect it when she goes out. She said that she was not aware of any further injury to her shoulder after the injury in 1989.
11. In a statement dated 20 January 2005 (exhibit A2), Mr H Doig, the applicant’s husband, stated that after the injury his wife was unable to carry out ordinary household tasks and required assistance with tasks such as shopping. He said also that she experienced difficulty with grooming and dressing. He confirmed that she was no longer able to take part in her preferred sports including golf. He said his wife used to be active and mobile and had no trouble with her shoulder. He said that since the injury, he and the applicant have slept in separate bedrooms due to her difficulty sleeping.
12. The report of an ultrasound and x-ray to the applicant’s left shoulder dated 24 September 2002 (T26) showed a normal glenohumeral joint with minor degenerative changes but without calcification. The 2002 ultrasound showed a prominent but not full-thickness tear to the bursal surface of the supraspinatus insertion and its underlying substance. The results of an ultrasound to the applicant’s left shoulder on 13 January 2004 were referred to in the written reports of Dr S Kevat, consultant rheumatologist, and Dr I van der Walt, orthopaedic surgeon.
13. In a report dated 6 August 2004 (exhibit A5) Dr van der Walt said he examined the applicant in May 2004 and took a history from her which included that she had reacted adversely to cortisone injections in 1990, developing hypertension after the injections and a feeling of numbness affecting the left side of her face. Dr van der Walt looked at the medical reports from the time of the injury and referred to reports of Dr J Salmon (T12, T24), Dr J Harrison (T14)), Dr N Langlands (T21)), Dr F Mastalgia (T22), and Dr P Zilko (T25). Dr van der Walt concluded that the applicant had sustained a rotator cuff injury in the fall and her present symptoms were a continuation of that injury.
14. Dr van der Walt stated:
I believe that her shoulder impairment is a result of her accepted injury. Her initial accepted diagnosis was a rotator cuff injury. Subsequent ultrasound on two occasions has shown pathological problems related to the rotator cuff. She has not been free of pain since her accident. She had no history of further injury to her shoulder.
15. In oral evidence Dr van der Walt said that the rotator cuff involves four muscles and the early reported symptoms that included tenderness over the biceps suggested to him that there was an injury to the applicant’s rotator cuff. He said that the diagnosis of rotator cuff tendonitis was supported by all doctors reporting on the applicant, except for Dr Zilko, rheumatologist (report dated 12 November 1992 (T25)). Dr van der Walt referred to the x-rays taken of the applicant’s shoulder in 1989 (T7). However he said that x-rays would not reveal soft tissue injury such as a tear or injury of the rotator cuff. Dr van der Walt said that a relatively small tear of the rotator cuff could be consistent with having a full range of movement, which the applicant had demonstrated when examined by Dr Hanrahan in 1990 (T10) and Dr Langlands in 1991 (T21).
16. Dr van der Walt reported that in his examination of the applicant she held her upper limb in a protected fashion against her body and had poor active movement in her left shoulder. He said that she demonstrated 80º of flexion and 40º of abduction, however rotation in the neutral position was relatively free. In oral evidence he said that the ultrasound results in 2004 showed significant thickening of the bursa and impingement which would restrict how far the applicant would be able to move her arm. He said that the rotator cuff lacks good blood supply, is more fragile, tends not to heal as well after injury, and is more susceptible to subsequent injury, even arising from ordinary use.
17. Dr van der Walt noted that the applicant’s right shoulder functioned quite normally. When questioned about the possibility that the condition of the applicant’s left shoulder could be age-related, Dr van der Walt replied that the applicant had almost complete range of movement in her right shoulder.
18. Dr van der Walt stated that the applicant’s condition was difficult to diagnose. He agreed that ultrasounds in 2002 and 2004 were taken a long time after the injury but he said that the applicant’s continued reporting of symptoms was significant in establishing a diagnosis at the time of the injury. He said that a small tear would be difficult to diagnose on clinical examination alone, but he said that a patient’s reports of tenderness are an important clinical tool in diagnosis. He noted that the applicant’s general practitioner at the time of the injury had referred to rotator cuff injury (exhibit A1) and Dr Langlands, orthopaedic surgeon, had diagnosed a mild residual rotator cuff problem in 1992 (T21). He pointed out that Dr P Hanrahan had noted the presence of crepitus (which is a grating sound suggesting the rubbing together of internal surfaces) when he examined the applicant on 5 July 1990 (T9).
19. Dr van der Walt assessed the applicant currently as having a 30% impairment of her left shoulder under Table 9.1 of the Comcare Guide to the assessment of the degree of permanent impairment (the Guide), this table being used to assess range of joint movement of the upper extremity, and a 20% impairment under Table 9.4, used to assess upper limb function.
20. In a report dated 21 October 2003 (T27), Dr Kevat agreed that the applicant had a left shoulder loss of range of movement that warranted a rating of 30% under Table 9.1 of the Guide, though he considered a 10% impairment under Table 9.4 was appropriate. Dr Kevat noted that the applicant tended to keep her left shoulder adducted against her chest at rest. He noted no muscle wasting on the left side and that right shoulder movements were normal. He stated that physical examinations of the applicant in the first three years after the injury led to no precise anatomical diagnosis of the condition.
21. In oral evidence Dr Kevat said that if the applicant had sustained a rotator cuff injury in 1989 he would have expected to see evidence of muscle wasting in the left limb. He thought that she was exaggerating symptoms in view of the lack of muscle wasting. Dr Kevat concluded that, on the basis of discrepancies in the range of shoulder movements recorded in 1992 and those recorded now, the impairment in the applicant’s shoulder was the result of aging entirely and was unrelated to the 1989 injury.
22. In a report dated 21 October 2004 (exhibit R1), Dr Kevat stated:
It is inescapable that all examinations carried out prior to November 1992, which was more than two years after the incident in question, report a full range of left shoulder movement. The current impairment of 30% arises directly out of her restricted range of shoulder movement which does not appear to have been documented in objective terms prior to 2002.
23. Dr Kevat concluded that the injury in 1989 had not given rise to an impairment of the applicant’s function, but rather her current restricted movement was the result of a combination of normal use, constitutional weakness of ligament structures, and aging.
24. In a report dated 18 November 2004 (exhibit R2), Dr Kevat said he disagreed with Dr van der Walt’s opinion that the correct initial diagnosis was an injury to the rotator cuff. Dr Kevat said that there was no objective support in the early medical reports for that diagnosis. Dr Kevat said a rotator cuff injury would be the first diagnosis that a medical practitioner would have considered. He agreed that the applicant now has a rotator cuff injury as represented by a tear in the supraspinatus muscle and that she has restricted range of movement.
25. In oral evidence Dr Kevat agreed that a small tear might develop into a larger tear. However he maintained his view that the applicant now suffers a new injury, with different symptoms, not a continuation of earlier symptoms. However he agreed under cross-examination that he had missed certain aspects of the early medical reports, including Dr Hanrahan’s report in 1990 (T11) that the applicant’s shoulder movements were restricted and uncomfortable. He also acknowledged that the report of a good range of movement recorded in early reports did not equate with a full range of movement.
26. Dr Kevat said that the physiological changes in the ultrasounds conducted in 2002 and 2004 demonstrated the presence of more recent injury, particularly because there was secondary bursitis, or inflammation, in the shoulder. He also disagreed with Dr van der Walt’s approach of giving weight to the ultrasounds undertaken 2002 and 2004. Dr Kevat said that these ultrasounds, taken ten years after medical practitioners had found the applicant had an almost full range of movement, could be of little assistance in understanding what has happened in this case.
CONSIDERATION OF THE ISSUES
27. Section 24 of the Act provides:
(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
……….
28. Impairment is defined in the interpretation provisions in s4 of the Act as the loss, the loss of use, or the damage or malfunction, of any part of the body or of a bodily system or function or part of such system or function. Section 4(8) of the Act provides that a reference to injury suffered by an employee is reference to an injury suffered in respect of which compensation is payable under the Act. Permanent is defined in s4 as being likely to continue indefinitely, which requires consideration of the factors set out in s24(2) of the Act.
29. Determinations of the percentages of permanent impairment must be made under the Guide: s24(5). Part of the Guide includes tables that address the various body systems and express degrees of impairment as a percentage, where impairment is measured against its effects on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person (Introduction to the Guide). Section 24 also provides that no compensation for permanent impairment is payable if impairment is less than 10%.
Permanence
30. There is no dispute that the applicant has suffered an injury, although there is some disagreement about the nature of the injury. The medical evidence is clear that the applicant satisfies the requirements of permanence within the meaning of s24(2) of the Act for the following reasons. In April 1991 (T16) Dr Salmon concluded that the general prognosis was for some continued pain and disability, which he nevertheless considered would decrease with physiotherapy (T17). In a report dated 30 October 1991 (T21) Dr Langlands, rheumatologist, stated that reasonable conservative measures to try and settle things have been undertaken. I would in general steer her away for any more aggressive intervention or any thoughts of surgical attack on shoulder or neck region. In a report dated 12 November 1992 (T25), Dr Zilko, rheumatologist stated that he doubted that further medical rehabilitative treatment would be helpful in her case. He considered that the level of impairment was 5% at that time as the applicant could use her left upper limb for self care and had not lost digital dexterity, and there was little restriction in her cervical spine movements. In 2003 (T27) Dr Kevat considered that the impairment could not be reduced by further treatment and was likely to deteriorate over a period of years.
31. The Tribunal accepts these medical reports, particularly those of Dr Langlands (T21) and Dr Salmon (T24) and the applicant’s evidence about the treatment she had undertaken at the time of the injury and in the ensuing years. The Tribunal finds that the requirements of s24(2) of the Act are satisfied and the Tribunal finds that the condition of the applicant’s shoulder is permanent.
“Injury…. Results In Permanent Impairment”
32. The main issue at the hearing, and as addressed in the reports of Dr Kevat and Dr van der Walt, was the question of the cause of the applicant’s current impairment of the left shoulder. Both doctors agreed that there was impairment. Both doctors stated their views taking into account the medical reports by other specialists completed at the time of the applicant’s injury, but each formed quite a different view about the relationship of the applicant’s present condition to the injury sustained in 1989.
33. Mr Byrne submitted that, taking into account the medical reports now and at the time of the injury:
§ the applicant’s current and ongoing impairment was reflected in consistent medical certificates dating from the time of the injury and through the 1990’s (exhibit A);
§ the medical reports at the time of the injury supported the correctness of a diagnosis of rotator cuff injury; and
§ there has been no intervening event or subsequent injury that could explain the applicant’s restricted range of movement now.
He set out a number of reasons why Dr van der Walt’s evidence should be preferred to the evidence of Dr Kevat on all these issues.
34. Mr Clark submitted that it was highly unlikely that the applicant’s injury in 1989 was the effective or operative cause of the applicant’s impairment now. He said that the applicant failed to establish the necessary causal link on a claim for permanent impairment made so long after the injury. He said that the specialists at the time of the injury did not diagnose a rotator cuff partial tear and that it is unsafe to rely on that diagnosis now given by Dr van der Walt. He said that the Tribunal should prefer the evidence of Dr Kevat that the presence of bursitis suggested an injury of recent onset, and his evidence that if the applicant had a chronic shoulder problem of some thirteen years’ standing she would have muscle wasting of the left limb, which she does not.
35. The applicant presented as a person who was giving an honest account of her symptoms at the time of her injury and since. The Tribunal accepts her evidence that she could recall no further incident that might account for the present level of her impairment. The Tribunal takes into account her evidence that she is careful to protect her left limb and her caution is understandable given her experience of her adverse reaction to the cortisone injections, even if the cause of this adverse reaction was unclear to medical practitioners at the time. The Tribunal also notes that there is no bar under the Act to the applicant claiming permanent impairment so many years after sustaining injury and draws no adverse inference concerning her failure to pursue her rights earlier.
36. The medical reports in the years after the 1989 injury indicate that there was a range of views concerning whether the applicant’s symptoms originated in her neck or in the rotator cuff. However the Tribunal does not accept Mr Clark’s submission that there was no medical evidence that suggested that the applicant had a rotator cuff tear or injury. Clearly, Dr Harrison thought so (exhibit A1). Dr Hanrahan considered that there may be a secondary rotator cuff syndrome (T9) and refers to the applicant as a difficult case where she was making little progress in her symptoms. The Tribunal notes that the respondent accepted the condition as being a rotator cuff lesion left shoulder and has never amended that diagnosis.
37. The Tribunal takes into account that there were differences in the views of doctors about the applicant’s genuineness and whether her perceived symptoms were exaggerated. Dr Hanrahan’s reports do not suggest that he thought that the applicant was anything other than genuine in her complaints. Dr Salmon referred to some psychological disturbance in the form of anger and anxiety, but offered the view that she would continue to suffer pain and disability. He thought her impairment was related to her cervical spine. Dr Langlands referred both to problems in the cervical spine and to a residual rotator cuff problem. He thought that her functional disability exceeded the expected level. Dr Zilko’s view was the most adverse and he considered that the applicant was in no discomfort except when being examined, had a full range of movement, and was attempting to limit her range of movement by stiffening her shoulder muscles.
38. The Tribunal takes into account the medical evidence at the time of injury and at present and prefers the evidence of Dr van der Walt to that of Dr Kevat concerning the connection between the applicant’s current impairment and her injury in 1989. With the value of hindsight the continuation and worsening of symptoms after an initial causative event can be seen. Dr van der Walt has addressed more comprehensively the likely course of injury and the resultant impairment now. Under cross-examination Dr Kevat agreed that he had missed certain matters that were consistent with a diagnosis of rotator cuff injury in the early medical reports. Dr Kevat also gave no explanation for his view that the applicant’s current impairment is solely related to age when there is clear discrepancy between the condition of her right arm, which is normal, and her left arm, which took the impact in the fall.
39. The Tribunal accepts that the applicant recounted her symptoms as she experienced them and accepts her evidence that when she was examined by doctors within a few years of sustaining the injury she was experiencing pain with movement of the shoulder joint even where doctors recorded that she had a good or full range of movement. The Tribunal accepts that the applicant is not fabricating her experience of symptoms and limitations when carrying out normal activities. Nevertheless there are unexplained aspects including the lack of muscle wasting in the left limb which would be expected with an injury sustained over fifteen years ago, where the applicant says she has suffered considerable disability and restriction ever since.
40. Taking into account the whole of the evidence a commonsense approach is called for in looking at the causal chain here: Adelaide Stevedoring Co Pty Ltd v Forst (1976) 50 ALJR 720. The applicant was fifty-seven at the time of the injury and the fall would be expected to have a greater effect at that age than on someone younger. There is uninterrupted history of limitation of movement since in the left limb and no comparable limitation in her right upper limb. The Tribunal was satisfied that the applicant sustained a rotator cuff injury in the fall in 1989, that her symptoms have worsened, and that this has resulted in permanent impairment.
Assessment
41. On the question of assessment of the condition the Tribunal notes that both Dr Kevat and Dr van der Walt assessed the applicant as having more than 50% restriction in the shoulder and warranted an assessment of 30 under Table 9.1. In the normal course of events the Tribunal would accept an agreed impairment rating assigned by two medical practitioners. However there are a number of reasons why the Tribunal has reservations about the assessment ratings assigned by Dr Kevat and Dr van der Walt, or more specifically whether they fully addressed the task required by the legislation and the Guide.
42. The main focus of the reports of Dr van der Walt and Dr Kevat was on the question of the correct diagnosis of the applicant’s condition and whether there was a connection between present impairment and an injury sustained many years previously. The Tribunal is not satisfied that either doctor had addressed specifically the question of whether there were other factors that might be affecting the level of impairment now. It is especially important in view of the time that has elapsed since the injury and in view of the applicant’s evidence, that she is protective in using her arm. Dr van der Walt appears to have taken the range of movement demonstrated by the applicant as the limit of her capability although he pointed out in evidence that an experienced practitioner is able to assess the presence of voluntary restriction. He acknowledged that he undertook limited objective assessment when he examined the applicant. Dr Kevat stated that he considered that the applicant was exaggerating her symptoms, but his report does not address whether he adjusted the rating that he assigned to take account of this exaggeration.
43. Throughout the early medical reports there is clear discrepancy between the symptoms that the applicant was expressing and the objective findings by medical practitioners. The discrepancy between a 5% assessment in 1992 (even taking into account that this assessment was under a Table not now applied by either Dr Kevat or Dr van der Walt) and 30% now, when the applicant appears to have been largely in retirement and taking care to protect her arm, warrants further investigation.
44. The Tribunal considers that this case may raise issues that were adverted to by Jenkinson J in Comcare v Amorebieta (1996) 22 AAR 539. In that decision the Court stated:
The percentage levels ….. are measures of "whole person impairment", evaluation of which, the Guide Glossary teaches, is "a medical appraisal of the nature and effect of an injury or disease on a person's functional capacity and on the activities of daily living". Quoted above is the exposition in the Glossary of the meaning of the latter phrase. Also quoted above is the warning in the Principles of Assessment that "activities of daily living" should not be confused with "lifestyle effects". It seems natural to conceive of functional capacity as that capacity which movement of the spine that is both possible and not physiologically harmful affords. If a person whose spine is permanently impaired is given, and accepts, medical advice that a particular movement of the spine, although painless, is physiologically harmful or involves risk of such harm, it would be natural to think that movement to be excluded from his functional capacity. From that position it may be thought natural to make the same exclusion in respect of restrictions of movements which the person's own experience or instinct tells him are harmful to him or expose him to risk of harm. But the Guide is intended to prescribe criteria by which the degree of permanent impairment shall be determined. Loss, or loss of use, or the damage or malfunction, of a bodily system or function or part thereof resulting from injury does not in my opinion comprehend voluntary abstention from use, even where the abstention is calculated, and likely, to benefit the bodily system or function. Nor does the expression "loss of [some part of] normal range of movement" of a limb or other part of the musculo-skeletal system comprehend in the speech of medical practitioners a loss which is imposed neither by physical incapacity to move nor by pain inhibiting movement, within that part of the range.
45. In view of reservations about the adequacy of the assessment of the impairment of the applicant’s upper limb the Tribunal held a telephone directions hearing on 4 April 2005. The parties agreed that the most expeditious course if the Tribunal were satisfied that other matters under s24 of the Act had been satisfied was to remit the matter to the respondent for assessment under the Guide by a specialist in shoulder injuries. The respondent undertook to pay for that specialist report and consult with the applicant’s representatives in framing the questions for the specialist to address.
DECISION
46. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s rotator cuff lesion left shoulder sustained in an injury in 1989 is permanent within the meaning of the Safety, Rehabilitation and Compensation Act 1988 and remits the matter to the respondent for assessment as agreed and set out in these reasons.
47. The Tribunal orders that the applicant’s costs be paid in accordance with s67 of the Act.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Ms MJ Carstairs, Member
Signed: Camille Banks
Associate
Date/s of Hearing 31 January 2005 [at Bundaberg]
Date of Decision 8 April 2005 [at Brisbane]
Counsel for the Applicant Mr M Byrne
Solicitor for the Applicant Charltons
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Dibbs Barker Gosling
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