Dzajkoska and Comcare (Compensation)

[2021] AATA 2035

Dzajkoska and Comcare (Compensation) [2021] AATA 2035 (1 July 2021)

Division:GENERAL DIVISION

File Number(s):      2018/6545

Re:Sally Dzajkoska

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:1 July 2021

Place:Sydney

The reviewable decision made on 11 September 2018, being the decision of Comcare to affirm its earlier determination denying liability to compensate Ms Dzajkoska in respect of the claimed injuries, is affirmed.

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Deputy President J W Constance

CATCHWORDS

WORKERS’ COMPENSATION – right shoulder ligament tear – neck pain – whether the Applicant suffered a physical injury arising out of, or in the course of her employment – where insufficient change in the Applicant’s shoulder symptoms immediately after the fall  to relate the shoulder symptoms to the fall – where injury did not arise out of or in the course of the Applicant’s employment – decision affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14

REASONS FOR DECISION

Deputy President J W Constance

Contents

A: Introduction

B: The relevant provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth

C: The issues

D: Issue 1. Did Ms Dzajkoska suffer a “physical …… injury arising out of, or in the course of” her employment, within the meaning of the Act?

D1. Evidence of Ms Dzajkoska
D2. Evidence of Ms Walsh, Ms Dzajkoska’s Supervisor
D3. Ms Dzajkoska’s attendances upon health professionals
D4. Reports of Dr Young, Orthopaedic Surgeon and Shoulder Specialist and Spine Surgeon
D5. Report of Dr Peng, General Practitioner
D6. Evidence of Dr Bodel, Orthopaedic Surgeon
D7. Evidence of Associate Professor McGill, Consultant Rheumatologist
D8. Discussion

The argument on behalf of Ms Dzajkoska

D9. Reasoning

The claim of an injury to the neck
The claim of an injury to the right shoulder

E. Issue 2: did Ms Dzajkoska suffer “an aggravation of a physical …… injury” suffered by her, that is “an aggravation that arose out of, or in the course of,” her employment” within the meaning of the Act?

F: Conclusion

A: INTRODUCTION

1. Ms Dzajkoska commenced employment by the Department of Home Affairs in September 2005. At the time of her claimed injury, Ms Dzajkoska was employed by the Australian Border Force working as an Administration Officer at Sydney International Airport.

2. Sometime in the first half of 2014 Ms Dzajkoska was injured when she fell in a carpark at the Airport. At the time she was carrying out her duties as an Administration Officer. The extent of her injuries is an issue in these proceedings.

3. In July 2018, Ms Dzajkoska lodged a claim for compensation[1] in respect of an injury described as “Right Shoulder ligament tear, bursitis and neck pain.”[2] She first noticed the injury at 8:30 am on 8 May 2014. The claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).

   [1] Exhibit R1 at 40.

   [2] Exhibit R1 at 41.

4. Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Ms Dzajkoska requested this be reconsidered. On 11 September 2018, Comcare decided to affirm its earlier determination.[3] I will refer to the decision to affirm the determination as the “reviewable decision”. In November 2018, Ms Dzajkoska applied to the Tribunal to review the reviewable decision.[4]

   [3] Exhibit R1 at 91.

   [4] Exhibit R1 at 1.

5. For the reasons which follow, the reviewable decision will be affirmed.

   B: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)

6. Subsection 14(1) of the Act provides:

   (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

7. “Injury” is defined in subsection 5A(1) to mean:

   (a)a disease suffered by an employee; or

   (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

   C: THE ISSUES

8. The following issues require determination:

   (1)Did Ms Dzajkoska suffer a “ physical …… injury arising out of, or in the course of” her employment, within the meaning of the Act?

   (2)If not, did Ms Dzajkoska suffer “an aggravation of a physical …… injury” suffered by her, that is “an aggravation that arose out of, or in the course of,” her employment” within the meaning of the Act?

   D: ISSUE 1. DID MS DZAJKOSKA SUFFER A “PHYSICAL …… INJURY ARISING OUT OF, OR IN THE COURSE OF” HER EMPLOYMENT, WITHIN THE MEANING OF THE ACT?

   D1. Evidence of Ms Dzajkoska

9. Ms Dzajkoska is 60 years old. She has worked as an Administration Officer at the Sydney International Airport for the past 14 years.

10. In 2007 Ms Dzajkoska fell at work when a stool on which she was sitting gave way. She did not suffer any significant injury in this incident.

11. In 2014 it was part of Ms Dzajkoska’s duties to check the availability of staff car spaces in the carpark at the Airport. On a day when she was doing this in the company of Ms Walsh, her manager, she fell as she was stepping from the road to the footpath. To the best of her recollection she reached out with her right hand to break her fall. She suffered grazing to her hands, elbows and knees, all of which were painful at the time.

12. After the fall Ms Dzajkoska was assisted by Ms Walsh to return to the office. She was able to continue working for the remainder of the day. When she returned home that evening she took some painkillers.

13. Ms Dzajkoska said that she did not take time off work to seek medical assistance as there was a “name and shame chart at work at the time of people taking time off work, it was frowned upon to take any time off, so I endeavoured not to, and just got on with work.”[5]

    [5] Transcript, 14 April 2021 at 5.

14. Within days of the incident Ms Dzajkoska began to feel pain in her right shoulder, which she assumed was part of the healing process. After the pain became worse she consulted her General Practitioner, Dr Whittaker. This consultation was about two to three weeks after fall. Dr Whittaker referred Ms Dzajkoska for physiotherapy.

15. Ms Dzajkoska first consulted a physiotherapist about six weeks after she fell. After several treatments she did not notice any improvement in the pain she suffered so she discontinued treatment and reverted to taking painkillers. About half-way through the physiotherapy sessions Ms Dzajkoska was referred for an ultrasound which showed a partial tear of the supraspinatus tendon of her right shoulder.

16. When Border Force was formed in 2015, Ms Dzajkoska’s new supervisor directed her to obtain a further medical certificate which she did. At this time it was determined that she had a full tear of the supraspinatus tendon.

17. Ms Dzajkoska continues to suffer constant pain in her right shoulder, which is worse at night. She takes a prescription medication for pain relief as described by her present General Practitioner, Dr Peng.

18. During cross-examination Ms Dzajkoska was shown a copy of an Incident Report relating to her fall, signed by her on 15 June 2018.[6] In this report the date of injury is shown as 3 June 2014. Ms Dzajkoska agreed with Counsel for Comcare that she did not recall the exact date she fell.

    [6] Exhibit R1 at ST6.

19. Ms Dzajkoska denied that Ms Walsh told her to file an incident report at the time she fell. She said that filing such a report was “frowned upon”[7] and she was afraid she would be asked to leave the Airport if she did. For these reasons she scheduled appointments to see her General Practitioner and Physiotherapist late in the afternoon.

    [7] Transcript, 14 April 2021 at 11.

20. Ms Dzajkoska said that the difference in the date of injury as shown in the Incident Report and the Claim Form was an error on her part. She said also that she changed her statement as to the circumstances in which she was in the carpark after she became aware of Ms Walsh’s recollection of the incident.[8] Initially, Ms Dzajkoska’s recollection as stated on the claim form was that she met Ms Walsh when they arrived at the carpark before commencing work.[9]

    [8] Transcript, 14 April 2021 at 13.

    [9] Exhibit R1 at 41.

    D2. Evidence of Ms Walsh, Ms Dzajkoska’s Supervisor

21. Ms Walsh provided a statement dated 3 June 2020[10] and gave evidence at the hearing.

    [10] Exhibit R2 at 49.

22. Ms Walsh was Ms Dzajkoska’s direct Supervisor from the time Ms Dzajkoska commenced working at the Airport (in approximately 2007) until March 2017.

23. Ms Walsh recalls the incident when Ms Dzajkoska fell in the carpark but does not remember the exact date. She recalls that the incident took place in 2014.

24. Ms Dzajkoska and Ms Walsh were inside their office when Ms Walsh requested Ms Dzajkoska to accompany her to the carpark to count the available car spaces. Ms Dzajkoska fell as she stepped onto the footpath as they were returning to the office. Ms Walsh did not observe any injuries to Ms Dzajkoska at the time, however Ms Dzajkoska was wearing a uniform so she was would have been unable to see any injuries to her arms and legs. Ms Dzajkoska returned to the office with Ms Walsh.

25. On 3 June 2020 Ms Walsh stated, in part:

    6. I distinctly remember advising Ms Dzajkoska to file an incident report immediately after the fall. I can also distinctly remember advising her to file an incident report on several occasions after the fall, and explained that an incident report could be filed retrospectively.

    7. Although Ms Dzajkoska acknowledged what I had said and indicated that she would file an incident report, I am of the understanding that she never did. If she had lodged an incident report, I would have been required to comment on it as her supervisor, so I would have become aware of the incident report if she had in fact lodged one.

    …

    9. Sometime after the incident in 2014 Ms Dzajkoska mentioned that she was unable to perform some of her tasks due to health reasons. She had a number of health issues at the time and she was often leaving work early, or arriving late to attend medical appointments. Because some of our work involved lifting boxes and pushing trollies, Ms Dzajkoska advised me that the heavy lifting and pushing was hurting her shoulder so I told Ms Dzajkoska that she was no longer required to undertake these tasks and she could ask other members of staff to assist. However, there may have been instances when she had to push laden trollies if there was no one around to assist her. I can recall that this was not immediately after the incident, though I cannot recall specifically when she reported her issues to me.

    10. It is difficult to recall when Ms Dzajkoska first reported her arm symptoms to me and whether she attributed them to the fall at the time. This is because of the length of time that has passed and the fact that the work area is always very busy. Ms Dzajkoska has had a number of health issues at the time for which she required medical treatment and took time off work. I can recall that she took leave for various health issues while I was her supervisor.[11]

    [11] Exhibit R2 at 50.

26. When she gave oral evidence, Ms Walsh said that she recalled Ms Dzajkoska attending physiotherapy appointments for treatment of her shoulder. She believes Ms Dzajkoska must have mentioned to her that she felt the need for physiotherapy was a result of her fall which would have prompted her to remind Ms Dzajkoska to submit an incident report.

27. I am satisfied that Ms Walsh was an honest witness who gave her evidence to the best of her recollection. I am satisfied also that her recollection of events was more reliable than that of Ms Dzajkoska and where their recollections vary I prefer the evidence of Ms Walsh.

    D3. Ms Dzajkoska’s attendances upon health professionals

28. Associate Professor McGill provided the following summary of Ms Dzajkoska’s attendances upon health professionals both before and after she fell in the carpark. I am satisfied this summary accurately reflects the records referred to:

    INFORMATION FROM THE DOCUMENTATION PROVIDED

    26 April 2005. The computer generated clinical notes from CBD Medical Practice commenced.

    1 February 2007. It was recorded that while at work the previous day she had slipped forwards landing on back on the floor. It was recorded “movement of the neck tender. No restriction of movements of arms, shoulders”.

    20 February 2007. The cervical spine MRI and other radiology results were noted and it was recorded “neck and back feels better. Still has occasional headaches”.

    8 February 2007. Xrays of the cervical spine performed with clinical notes recording “fall on 31 January 2007. Numbness in the left hand. Cervical spine lesion?” It was recorded that there was “very mild foramina! stenosis recorded on the right at C5/6”.

    8 February 2007. CT scan of the cervical spine was reported to show “at the C5/6 level, large broad based osteophyte is noted with right sided prominence causing right sided foraminal stenosis and very likely compromise to the exiting right C6 nerve. The exiting left nerve is not compromised. Mild degenerative change also noted at the C6/7 level”.

    15 February 2007. CT scan of the brain was performed with the clinical history of “fall - left side”. The report stated that there was no evidence of intercranial injury.

    15 February 2007. MRI of the cervical spine was reported to show “mild to moderate degenerative disc disease in the cervical region. At C5/6, broad based osteophyte is noted with side prominence abutting the exiting right C6 nerve”.

    30 April 2014. The computer generated notes from Marrickville Medical Practice commenced.

    30 June 2014. This was the first mention of right shoulder pain. It was recorded that she had a painful arc with reduced range of movement. No cause of the shoulder symptom was mentioned.

    23 July 2014. The right shoulder ultrasound report was noted but the only clinical problem recorded related to abdominal symptoms.

    1 October 2014. This was the next entry that mentioned her shoulder and it recorded “shoulder pain better”.

    30 October 2014. Shoulder cortisone was requested. There was no clinical note in regard to the level of shoulder symptoms, causation or aggravation.

    9 February 2016. “Right shoulder impingement syndrome” was listed by Dr Peng as the reason for the visit. There was no other clinical information.

    21 April 2016. “right shoulder capsulitis, stress” were noted as the reasons for the visit.

    5 June 2018. It was recorded that she was “still sore on walking” (related to toe fracture) and “shoulder bursitis”. Other general health problems were also mentioned.

    6 July 2018. Cervical disc herniation was questioned as the reason for the visit but no description was provided of the symptoms and there was no sign recorded relevant to the musculoskeletal system.

    3 August 2018. Reason for visit was listed as “workers compensation, diabetes review”. Her medications at that stage included Rosuvastatin 10mg daily, Metformin 1000mg nocte and Spironolactone 25mg daily, in addition to Nurofen Plus and Rabeprazole. There was no clinical information recorded to assist in regard to why worker’s compensation was thought to be a reason for presentation.

    13 July 2018. CT scan of cervical spine was performed with clinical notes “neck pain radiating to right arm. Cervical disc prolapse?”. It was reported that “the most significant abnormality is at C5/6 and to a lesser extent C6/7 where there is right neural exit foraminal narrowing”.

    23 September 2014. Mr Rex Tuong, physiotherapist, provided a letter to Dr Whittaker in regard to Ms Dzajkoska’s right shoulder. The clinical findings included pain with abduction between 80 and 110 , reduced external rotation, mild crepitus with movement of the right shoulder and “pain referral into right arm and elbow”. There was no mention of any causative or aggravating incident or activity.

    6 July 2018. Mr Omran Omran apparently obtained a history from Ms Dzajkoska that in regard to the fall at work “she missed a step and fell forward into the gutter with her arm stretched out, immediately feeling pain in her right shoulder”. That was a different recollection to the one provided by Ms Dzajkoska today.

    26 June 2014. Ultrasound of the right shoulder was reported to show “a partial thickness high grade tear involving the inserting mid supraspinatus tendon. There is fluid filling of the bursa and bursal distortion on abduction. The partial thickness tear of the supraspinatus tendon may progress to full thickness tear”.

    7 August 2014. Notes from “Physio on Alice” recorded “R shoulder pain for 6 months. Sudden onset but can’t remember incident. First noticed pain at night for past week has been getting arm as well as lateral arm and into little finger”. It was noted “night: wakes three times, can be ok to lay on but sometimes sore”. The physiotherapy assessment was possible frozen shoulder and possible calcific tendonitis. This was the first physiotherapy treatment session which included provision of a Theraband.

    The initial assessment form recorded “R shoulder 6-8/12 gradual onset. 6/12 fall FOSH rushing down path and tripped. 14/12 moving house". It was noted that she worked at the airport in administration and did occasional lifting not above shoulder height.

    14 November 2014. Mr Rex Tuong, physiotherapist, recorded that she had completed eight sessions of physiotherapy and had shown good compliance. It was noted that there had been “aggravation of shoulder performing cleaning tasks at home 4-5 weeks ago; limited improvement since aggravation of shoulder; still experiencing pain with overhead and repetitive upper limb tasks at work and at home”.

    31 May 2018. Xrays of the left foot were reported to show a plantar calcaneal spur.

    31 May 2018. Ultrasound of the right shoulder was reported to show “evidence of bursal impingement on internal rotation and abduction. There is a full thickness tear of mid to posterior supraspinatus”.

    5 June 2018. Dr Peng recorded that she was suffering shoulder tendonitis and recommended that she not be allowed to lift more than 2kg.

    6 July 2018, Mr Omran Omran apparently obtained a history from Ms Dzajkoska that in regard to the fall at work “she missed a step and fell forward into the gutter with her arm stretched out, immediately feeling pain in her right shoulder”. That was a different recollection to the one provided by Ms Dzajkoska today.

    11 July 2018. Ms Dzajkoska submitted a workers compensation claim in relation to her right shoulder and neck pain.

    24 August 2018. Dr Geoffrey Peng provided a report to Comcare. He expressed the belief “the fall Ms Dzajkoska sustained in 2014 was the cause of her right shoulder pain. The trigger factor this time was repetitive lifting with her right shoulder at work”. He recommended she return to modified duties at pre-injury hours with no lifting greater than 2kg until further review.[12]

    [12] Exhibit R2 at 45-47.

    D4. Reports of Dr Young, Orthopaedic Surgeon and Shoulder Specialist and Spine Surgeon

29. Ms Dzajkoska was referred to Dr Young in November 2019 by Dr Peng, Ms Dzajkoska’s General Practitioner. Dr Young provided reports to Dr Peng and Ms Dzajkoska’s Solicitors. He did not give evidence at the hearing.

30. On 22 November 2019 Dr Young reported that Ms Dzajkoska presented with right shoulder pain and weakness as a result of a rotator cuff tear. In his opinion that was consistent with an acute tear following her injury in May 2014 which had increased in size since that time.[13]

    [13] Exhibit A1 at 8.

1. Dr Young reviewed Ms Dzajkoska in December 2019. At that time he reported in part:

   I reviewed Sally Dzajkoska at The Stadium Clinic today, with the MRI scan of the right shoulder. This confirms an anterior supraspinatus tear which is mostly a high grade partial thickness tear, but with a likely full thickness breach very anteriorly. There is tendinopathy of the upper subscapularis with some intrasubstance partial tear changes. There is degenerative change of the AC joint, but a normal appearing shoulder joint.[14]

   [14] Exhibit A1 at 12.

2. On 6 April 2020 Dr Young reported to Ms Dzajkoska’s Solicitors in part, as follows:

   Sally's ongoing shoulder pain symptoms are as a consequence of the rotator cuff tear. This would be consistent with a tear following the injury as documented on the ultrasound in 2014. As such, it would appear that the work related injury is the substantial contributing factor to the tear and Sally's ongoing shoulder pain.[15]

   [15] Exhibit A1 at 20.

   D5. Report of Dr Peng, General Practitioner

3. On 19 May 2020 Dr Peng reported, in part:

   On 24^th June 2018, Mrs. Dzajkoska presented to me with the complaints of worsening pain and stiffness of her right shoulder after repetitively lifting with her right shoulder at work. Ultrasound of right shoulder was requested and confirmed "bursitis with full thickness tear of mid to posterior supraspinatus”.[16]

   [16] Exhibit A1 at 21.

   D6. Evidence of Dr Bodel, Orthopaedic Surgeon

4. Dr Bodel examined Ms Dzajkoska on 21 July 2020 at the request of her Solicitors. He provided a report dated 21 July 2020[17] and gave evidence at the hearing.

   [17] Exhibit A1 at 25.

5. Dr Bodel recorded a history of Ms Dzajkoska developing pain and stiffness in the region of the right shoulder in about May 2014 which she associated with the nature and conditions of her work. There was no specific event which caused the onset of symptoms. She had been experiencing a gradual onset of symptoms prior to falling in the carpark but they became much worse after the fall.

6. In giving evidence, Dr Bodel said that the type of tear suffered by Ms Dzajkoska is unlikely to occur spontaneously. In a person of Ms Dzajkoska’s age, a tear at the insertion greater tuberosity is usually the result of a traumatic event.[18]

   [18] Transcript, 14 April 2021 at 38-39.

7. Dr Bodel said also that “if there was some corroborating documentation to see whether a fall or event that did occur, or how it occurred or how she landed would help to know whether it is caused and related to the pathology that is now present.”[19] He agreed that most people in Ms Dzajkoska’s age group would have a partial tear which frequently extends to a full thickness tear after a further traumatic event. That event may be normal activity around the home.[20]

   [19] Transcript, 14 April 2021 at 43.

   [20] Transcript, 14 April 2021 at 45.

8. Dr Bodel was asked to comment on a report of an ultrasound of Ms Dzajkoska’s right shoulder performed on 26 June 2014,[21] which noted subacromial/subdeltoid bursa fluid-filling and bunching of the bursa. In his opinion this implied “a pathology in that rotator cuff which is likely to be symptomatic and is likely to be traumatic, and the timeline of about a maximum of six or seven weeks prior to that date is well and truly in the timeline when a traumatic event could’ve occurred to lead to that type of pathology.”[22]

   [21] Exhibit R1 at 21.

   [22] Transcript, 14 April 2021 at 46.

   D7. Evidence of Associate Professor McGill, Consultant Rheumatologist

9. Associate Professor McGill examined Ms Dzajkoska on 3 July 2019 at the request of Comcare’s Solicitors. He provided reports dated 3 July 2019[23] and 14 October 2020[24] and gave evidence at the hearing.

   [23] Exhibit R3.

   [24] Exhibit R2 at 53.

10. In his report, Associate Professor McGill stated, in part:

    This 58 year old lady has a tear in the supraspinatus tendon of her right shoulder and degenerative cervical spine disease with imaging evidence of compromise of the right C6 nerve root. Her symptoms have derived from both regions. The tingling and numbness that she experiences when elevating her right arm indicates neural compression. There was no clinical sign of thoracic outlet syndrome or peripheral nerve compression. I think it is likely that the nerve root irritation is at the right C6 nerve root as a result of degenerative change in her neck. The pain and tenderness that she experiences in the upper fibres of the right trapezius, are probably referred symptoms from the cervical spine. Pain in the mid-upper trapezius is common in the setting of cervical spine derived symptoms and rare in the setting of rotator cuff derived symptoms.

    At least some of the discomfort she experienced when performing flexion and abduction of the right shoulder is likely to have derived from her rotator cuff.

    With respect to the cause of the pathology likely to be responsible for her symptoms:

    Her cervical spondylosis is constitutional and degenerative and has not been influenced by her work.

    The association or lack thereof between the fall she sustained in about May 2014 and her rotator cuff tear is uncertain.

    The type of fall she described could cause a tear of the rotator cuff because of weight being transmitted through the shoulder when she landed on her hand and forearm.

    Notwithstanding that she had abrasions on her forearm, had the fall caused a rotator cuff tear, I would have expected her to have experienced significant shoulder and proximal arm symptoms within 4 weeks of the fall.[25]

    [25] Exhibit R2 at 47.

11. Associate Professor McGill referred to the physiotherapy notes of 7 August 2014 which recorded “R shoulder pain for 6 months. Sudden onset but can’t remember incident.”[26] He concluded that: “[taking] into consideration the above information, it appears that her shoulder pain had been present for about six months prior to 7 August 2014, and that there was no or insufficient change in her shoulder symptoms immediately after the 2014 in about May for her to relate the shoulder symptoms to the fall in the period soon after the fall.”[27]

    [26] Exhibit R2 at 48.

    [27] Exhibit R2 at 48.

12. When he gave evidence Associate Professor McGill said that the connection, or lack thereof, of the pathology in Ms Dzajkoska’s shoulder to the fall was dependent on her medical history which is most accurately reflected by the contemporaneous notes.[28] I have referred to his evidence in relation to these notes in paragraph 28 of these reasons.

    D8. Discussion

    [28] Transcript, 15 April 2021 at 57.

    The argument on behalf of Ms Dzajkoska

13. Counsel argued that, as a result of the work-related fall suffered by Ms Dzajkoska in 2014, she suffered a right rotator cuff tear, being a partial tear which has since developed into a full-thickness tear.

14. Although no-one can be precise as to the date Ms Dzajkoska fell, her General Practitioner’s records show that on 3 June 2014 Ms Dzajkoska complained of shoulder pain. On 26 June 2014 the ultrasound confirmed that she had a partial thickness tear of the supraspinatus tendon.

15. Ms Dzajkoska was then referred to a physiotherapist. Ms Walsh gave evidence that she reminded Ms Dzajkoska to make an incident report when she was receiving physiotherapy and that she believed that, at this time, Ms Dzajkoska referred to her shoulder pain being related to the fall.

16. Following the injury Ms Dzajkoska continued with her work believing that her condition would improve. This accounts for her failure to complain of the pain in her shoulder when visiting her General Practitioner.

17. There was no alternative explanation of the cause of the rotator cuff tear put forward by Comcare.

    D9. Reasoning

18. It is not in dispute that Ms Dzajkoska fell in the Airport carpark sometime in the first half of 2014 and that at the time she was acting in the course of her employment.

    The claim of an injury to the neck

19. There is very limited evidence of an injury to Ms Dzajkoska’s neck. However it was referred to in the claim lodged by Ms Dzajkoska and the claim was not withdrawn during these proceedings.

20. Associate Professor McGill took a history from Ms Dzajkoska which included a period of neck pain in 1996. Neither Dr Bodel nor Dr Young refer to Ms Dzajkoska suffering neck pain at the time of their respective examinations.

21. The clinical notes of Dr Peng refer to Ms Dzajkoska complaining of neck pain in July 2018.[29] Clinical notes of the CBD Medical Practice record Ms Dzajkoska complaining of neck pain in February 2007.[30]

    [29] Exhibit R3 at 161.

    [30] Exhibit R3 at 169.

22. I accept the opinion of Associate Professor McGill that any pain experienced by Ms Dzajkoska in her neck was caused by a degenerative cervical spine disease and that pain in the neck area resulting from a rotator cuff injury is rare.

23. I am not satisfied on the balance of probabilities that Ms Dzajkoska suffered an injury to her neck when she fell in 2014.

    The claim of an injury to the right shoulder

24. Although Ms Dzajkoska was uncertain about the circumstances of her being in the carpark, I am satisfied, on the basis of her evidence and that of Ms Walsh, that she fell in the manner described by them.

25. It is not in dispute that sometime prior to 23 July 2014, Ms Dzajkoska suffered a partial tear of the supraspinatus tendon[31] which subsequently developed into a full-thickness tear. The question for determination is whether or not this condition “arose out of, or in the course of” Ms Dzajkoska’s employment.

    [31] Exhibit A2 at 126.

26. Taking into account the evidence of Associate Professor McGill, I am not satisfied on the balance of probabilities that the tear in Ms Dzajkoska’s right rotator cuff either arose out of her relevant employment or arose in the course of that employment. My reasons for this conclusion follow.

27. Associate Professor McGill provided a detailed and well-considered report in which he reviewed the various clinical notes and reports relating to Ms Dzajkoska. He provided clear and concise answers when giving oral evidence.

28. Associate Professor McGill acknowledged that the type of fall described by Ms Dzajkoska could have caused a tear to her rotator cuff because of weight being transmitted through her shoulder when she landed on her hand and forearm. However, in his opinion, such an injury would be expected to have caused “significant shoulder and proximal arm symptoms within 4 weeks of the fall.”[32]

    [32] Exhibit R2 at 47.

29. As Associate Professor McGill noted in his report, the notes of Ms Dzajkoska’s General Practitioner, Dr Whittaker, for 30 April 2014, 5 May 2014 and 12 May 2014 did not record any reference to her having suffered a fall or any symptoms in her shoulder.[33] I agree with his observation that the contemporaneous records are more likely to be accurate than Ms Dzajkoska’s recollection several years after the event.

    [33] Exhibit R2 at 48.

30. I do not suggest that Ms Dzajkoska was exaggerating when she gave evidence, rather I am satisfied that her memory of events was not always accurate. Her recollection of the circumstances in which she was in the carpark varied. When she gave a history to the physiotherapist on 7 August 2014 she complained of shoulder pain but could not remember an incident related to this condition.[34]

    [34] See paragraph 28 of these reasons.

31. Having taken a history from Ms Dzajkoska and having reviewed the documentation, Associate Professor McGill was of the opinion that “her shoulder pain had been present for about six months prior to 7 August 2014, and that there was no or insufficient change in her shoulder symptoms immediately after the 2014 (sic) in about May for her to relate the shoulder symptoms to the fall in the period soon after the fall.”[35]

    [35] Exhibit R2 at 48.

32. I have also taken into account Associate Professor McGill’s evidence that rotator cuff tears are relatively common in the general community in the absence of injury and that the natural history of the condition is that frequently there is an extension from partial thickness tear to full thickness tear, regardless of the initial cause of the tear.[36]

    [36] Exhibit R2 at 48.

33. Dr Bodel did not explain in his report why he did not take into account that the history given to him by Ms Dzajkoska was that the onset of her shoulder symptoms preceded her fall, even though this history was consistent with that taken by the physiotherapist, Ms Hollmann, on 7 August 2014. Mr Tuong also recorded a history of a gradual onset of shoulder pain over a period of six to eight months when Ms Dzajkoska consulted him on 23 September 2014.[37]

    [37] Exhibit R3 at 105.

34. When he gave evidence Dr Bodel said at first that partial tears of the supraspinatus tendon “are usually quite uncomfortable and quite significantly painful’ and “very restricted in movement, particularly in abduction”.[38] He then qualified this by saying that the pain may be intermittent and that pain tolerance is variable. Dr Bodel did not explain why he apparently disregarded Ms Dzajkoska’s description of the onset of the pain as being gradual, occurring six months before August 2014 and that she could not recall an incident. Ms Dzajkoska also described the pain as being of sudden onset six to eight months before 23 September 2014.[39] Dr Bodel gave evidence that there was a “possible” link between the shoulder pain and the fall.[40]

    [38] Transcript, 14 April 2021 at 40.

    [39] See paragraph 28 of these reasons.

    [40] Transcript, 14 April 2021 at 43.

35. I have taken into account also that Dr Bodel was prepared to make a diagnosis that Ms Dzajkoska suffered increasing neck and right shoulder pain based solely on the assessment made by Ms Dzajkoska.[41] This contrasted with the manner in which Associate Professor McGill explained his reasons for forming the opinions he expressed. I found the latter more persuasive.

    [41] Transcript, 14 April 2021 at 44.

36. I have considered the opinion of Dr Young that Ms Dzajkoska’s shoulder condition was consistent with her having suffered a tear of the supraspinatus tendon when she fell. However Dr Young does not provide the basis of this opinion in his report. I prefer the detailed evidence of Associate Professor McGill.

    E. ISSUE 2: DID MS DZAJKOSKA SUFFER “AN AGGRAVATION OF A PHYSICAL …… INJURY” SUFFERED BY HER, THAT IS “AN AGGRAVATION THAT AROSE OUT OF, OR IN THE COURSE OF,” HER EMPLOYMENT” WITHIN THE MEANING OF THE ACT?

37. For the same reason stated in section D above, I am not satisfied on the balance of probabilities that Ms Dzajkoska suffered an aggravation of a tear to her supraspinatus tendon that either arose out of her relevant employment or arose in the course of that employment. Counsel for Ms Dzajkoska did not argue otherwise.

    F: CONCLUSION

38. The reviewable decision made on 11 September 2018, being the decision of Comcare to affirm its earlier determination denying liability to compensate Ms Dzajkoska in respect of the claimed injuries, will be affirmed.

I certify that the preceding 68 (sixty - eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.............................[SGD]...........................................

Associate

Dated: 1 July 2021

Date(s) of hearing:	14 and 15 April 2021
Counsel for the Applicant:	D Keyte
Solicitors for the Applicant:	Turner Freeman Lawyers
Counsel for the Respondent:	B Kelly
Solicitors for the Respondent:	S Miller, Sparke Helmore