Francis Cullen and Australian Postal Corporation
[2013] AATA 578
[2013] AATA 578
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/3056 and 2012/3700
Re
Francis Cullen
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 16 August 2013 Place Melbourne
1.The Tribunal affirms the reviewable decision of 17 August 2012 in application no 2012/3700; and
2.The Tribunal sets aside the reviewable decision of 20 July 2011 in application no 2011/3056 and in substitution decides that:
a.in accordance with s 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) the Respondent is liable to pay compensation to the Applicant in respect of the claim for right supraspinatus tear with subacromial bursitis; and
b.The Applicant is entitled to payment for incapacity under section 19 of the Act as of 21 May 2011 and at the present date on the basis that his ability to earn in any particular week is equal to his actual earnings from employment as a school crossing supervisor with the Baw Baw Shire Council; and
3.The Respondent shall pay the Applicant’s reasonable costs and disbursements of the proceedings in accordance with the Administrative Appeals Tribunal General Practice Direction.
[sgd]........................................................................
Miss E A Shanahan, Member
CATCHWORDS
WORKERS' COMPENSATION – shoulder injury – secondary or separate psychological injury – termination of entitlement to compensation – alternative employment – continuing disability and incapacity for work – availability of suitable employment.
Legislation
Safety, Rehabilitation and Compensation Act 1988 sections 4, 5A, 5B, 14, 16, 19 and 24
Cases
Abrahams v Comcare (2006) 93 ALD 147
Canute v Comcare (2006) 226 CLR 535
Comcare v Mooi (1996) 69 FCR 439
Secondary Materials
The Comcare Guide to the Assessment of Degree of Permanent Impairment (2nd Edition)
The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th Edition)
REASONS FOR DECISION
Miss E A Shanahan, Member
16 August 2013
On 1 August 2011 Mr Francis Cullen lodged an application for a review of Australia Post’s reviewable decision dated 20 July 2011 (application no 2011/3056 – Exhibit R1). The decision denied any current liability for Mr Cullen’s right shoulder injury, eventually diagnosed as a right supraspinatus tear and subacromial bursitis. Mr Cullen had sustained the right shoulder injury at work on 9 October 2007, and Australia Post had initially accepted liability on 13 November 2007.
On 27 August 2012 Mr Cullen lodged a further application for a review of Australia Post’s decision of 17 August 2012 (application no 2012/3700 – Exhibit R3), denying liability for an adjustment disorder with anxiety and depressed mood.
Mr Cullen sought a review of a third Australia Post decision (application no 2012/0923 – Exhibit R2). He withdrew this application on 13 May 2013.
Mr Cullen was represented by Mr Mark Carey of Counsel, instructed by Mr Stuart Coutts of Maurice Blackburn Solicitors. Australia Post was represented by Ms Cathy Dowsett of Counsel, instructed by Mr Damian Clarke of Clarke Legal. The Tribunal was provided with three sets of documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibits R1, R2 and R3). Both parties tendered further documents, a list of which is attached as an appendix to this decision. Mr Cullen, Dr John Gill, Mr Thomas Kossman, Mr Ian Jones, Mr Paul Hartley and Professor George Mendelson gave oral evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
Mr Cullen commenced employment with Australia Post in June 1999 as a mail officer. After a four-year apprenticeship, Mr Cullen had worked first as a painter, in Public Works and Police Department building maintenance; then as a storeman and packer; and then in truck body works, which involved painting, riveting, wiring and roofing of semi‑trailers. Mr Cullen’s first position at Australia Post was in mail sorting. In July 2006 he transferred to the position of a Postal Transport Officer initially on a casual basis and then permanently. Mr Cullen usually worked between the hours of 11:00 pm and 7:40 am.
Initially, Mr Cullen lived in Pearcedale and worked at the Dandenong Transport Facility. In December 2007 he moved to a property in Central Gippsland in Trafalgar East. As a transport officer he worked from the Dandenong Facility and this involved considerable driving to and from work.
On 9 October 2007, while transporting mail to and from Dandenong to the Australia Air Express office at Tullamarine, he experienced pain in his right shoulder while unloading mail. Mr Cullen lodged an incident report on 12 October 2007 (Exhibit R1, T3) and subsequently lodged a claim for compensation on 16 October 2007 (Exhibit R1, T5). The stated injury was pain in right shoulder. Mr Cullen had seen his general practitioner, Dr Vicki Miezis, on 12 October 2007. Dr Miezis referred him for an ultrasound of the right shoulder and certified his attendance but did not declare him unfit for work at Mr Cullen’s insistence (Exhibit R1, T21). The ultrasound, conducted on 16 October 2007 revealed a high-grade partial thickness tear in the anterior aspect of Mr Cullen’s right supraspinatus tendon, with subacromial bursal thickening, suggesting bursitis (Exhibit R1, T6). On 13 November 2007 Australia Post accepted liability for Mr Cullen’s right shoulder injury.
Dr Miezis referred Mr Cullen to Mr Andrew Weber, an orthopaedic surgeon, for an opinion. Mr Weber advised conservative treatment in the form of physiotherapy but continued to review Mr Cullen. As part of this review, several ultrasounds of the right shoulder were performed. Following the ultrasound findings of 22 April 2008, coupled with Mr Cullen’s failure to improve with physiotherapy, Mr Weber advised surgical intervention.
On 22 May 2008 Mr Cullen was involved in a motor vehicle accident. However, there was no evidence that this had an impact on his right shoulder injury.
Mr Weber performed an arthroscopic decompression and rotator cuff repair on Mr Cullen’s right shoulder on 30 June 2008. At operation, Mr Weber divided the coraco‑acromial ligament and repaired the supraspinatus muscle tear using two anchors (Exhibit R1, T37). Mr Cullen underwent post-operative rehabilitation in the form of physiotherapy and returned to work on 9 September 2008, on a structured return to work program involving mail sorting.
On 29 September 2008 Mr Cullen developed pain in his left shoulder and elbow. This was subsequently diagnosed as a rotator cuff syndrome and epicondylitis of the elbow. Mr Cullen attributed this to the mail sorting, as he used his left upper limb in order to protect his right shoulder. His general practitioner, Dr Antony Wong, certified him as unfit for work throughout October 2008.
Mr Cullen submitted a claim for compensation on 13 October 2008 for the left upper limb injury. Liability was denied for the period 1 October 2008 to 15 October 2008 but paid thereafter until 29 October 2008.
Mr Cullen undertook further return to work programs performing administrative duties and mail sorting at the Morwell Mail Centre. Mr Cullen then returned to driving a postal vehicle with a jockey to assist in unloading and loading. This return to work program was successful and Mr Cullen resumed full-time work as a Transport Officer without restrictions as of 27 January 2009.
In August 2009, while pulling a curtain on the mail vehicle, Mr Cullen again developed acute pain in his right shoulder (Exhibit R1, T111). This was regarded as an aggravation of his right shoulder condition. However, he returned to work with restrictions. As his pain persisted, he was again referred to Mr Weber, who ordered an ultrasound. The ultrasound of 8 December 2009 showed only post-operative changes. Mr Weber recommended treatment with physiotherapy.
Mr Cullen resigned from Australia Post effective from 28 May 2010. Prior to his resignation, he had obtained work locally in Trafalgar East as a feedman with Cibus Goats. This involved caring for goats, milking them, driving a tractor and lifting feed allotments weighing less than 10 kilograms.
On 26 September 2010 Mr Cullen suffered a tear of the medial third of his right gastrocnemius muscle (the major flexor muscle of the ankle) while chasing a goat. Mr Cullen lodged a claim with WorkCover Victoria for compensation for this injury(Exhibit R1, T148)
Mr Cullen’s general practitioner at the time, Dr Susan Clarke, referred him to Mr Malcolm Thomas, orthopaedic surgeon, for a further opinion regarding the status of his right shoulder. This referral was dated 23 August 2010. Mr Thomas advised further arthroscopy and this procedure was performed on 1 February 2011. Mr Thomas found severe scaring in the subacromial space of Mr Cullen’s right shoulder and, with some difficulty, this was resected, as was the subacromial bursa (Exhibit R1, T130). Mr Thomas certified Mr Cullen as unfit for work throughout February 2011.
Mr Thomas noted some improvement following the surgery but the improvement was short-lived. Mr Thomas advised Mr Cullen that he could return to work on light duties, again in an administrative position. As Cibus Goats was unable to provide any position with such restrictions, his employment was terminated on his resignation on 20 March 2011. Mr Cullen subsequently underwent cortisone injections into his right shoulder in June 2011, but again without any benefit.
Prior to the termination of his employment with Cibus Goats, Mr Cullen sought employment with the Baw Baw Shire Council as a school-crossing supervisor. He commenced work in this position in March 2011. He works between 10 and 17 hours a week during school terms.
Mr Cullen and his wife have three adopted children, all of whom are disabled. The youngest child is aged five and his adoption by the Cullens was the subject of legal proceedings in the past two years. For more than 10 years, Mr Cullen has kept horses and is actively involved in the Riding For The Disabled Program, instructing and supervising disabled persons in horse-riding. He walks beside the horse and its disabled rider.
Mr Cullen is also involved in endurance horse riding over distances up to 160 km (Exhibit R12 – R17), termed VERA Rides (Victorian Endurance Riders Association). He undertakes these rides three to four times a year but has not done so since April 2012. Mr Cullen describes his horse, Madison Can, as very docile and effortlessly controlled by using his left hand only. The VERA Ride results provided record that since 30 October 2011 Mr Cullen has usually been involved in shorter 40 km training rides. However, over 24 and 25 March 2012 Mr Cullen undertook a 90 km ride, in which he was placed third out of seven competitors. This ride was similar in distance to one conducted on 14 August 2010, but the intervening VERA Rides were for shorter distances and occasionally not completed.
Mr Cullen is able to perform selective tasks around his home. He mows the lawn using the ride-on mower, does some cooking but can no longer use a chainsaw. He uses a whipper-snipper in his left hand. His daughter helps with the care of the horses.
Mr Cullen estimates that his mood fluctuation, depression and poor sleep became pronounced in mid-2011. During this time his general practitioner, Dr Michael Bond, referred him to Mr Gary Lawler, a psychologist, for cognitive behaviour therapy as part of a mental health plan. Mr Cullen told Mr Lawler that his symptoms had become more pronounced after a consultation with an orthopaedic surgeon (either Mr Andrew McQueen or Mr Ashley Carr), who had advised that no further treatment was available for his right shoulder.
On 24 August 2011 Mr Lawler recorded (Exhibit R5) that Mr Cullen had serious financial difficulties, as his wife’s carer allowance for the disabled children had ceased; and while he had not qualified for disability support pension he should be able to access Newstart Allowance. Mr Cullen is now receiving the Newstart Allowance.
Mr Cullen’s current treatment consists of analgesics in the form of Tramadol and Panadol Osteo, with occasional Oxycontin and the use of a TENS machine. Mr Cullen did not tolerate anti-depressant medication.
Under cross-examination by Ms Dowsett, Mr Cullen denied he had doctor-shopped to obtain a certificate of ill-health in May 2010 in order to undertake a one-month work trial at Cibus Goats before he resigned from Australia Post. A Dr Doslo had provided a certificate for 20 to 27 May 2010 (Exhibit R4). Mr Cullen’s general practitioner, Dr Clarke had refused to do so on the same day (Exhibit R5).
The Tribunal asked Mr Cullen what type of saddle he used when horse riding. Mr Cullen estimated his saddle weighed 6 kilograms. The Tribunal also asked whether the reason he worked the night shift at Australia Post was in order to provide more care to his disabled children. Mr Cullen said he had elected to work night shift for purely financial reasons.
ORAL EVIDENCE BEFORE THE TRIBUNAL
Mr Cullen’s evidence, including the content of his proof of evidence, is summarised above under BACKGROUND TO THE APPLICATION.
Dr John Gill
Dr Gill is a psychiatrist who saw Mr Cullen on 28 August 2012 at the request of the Applicant’s solicitors (Exhibit A1). On the history obtained from Mr Cullen, Dr Gill dated the onset of his symptoms of worsening mood from the time he was given a poor prognosis regarding his shoulder by Mr Ashley Carr. Mr Cullen described himself as worried, irritable, short-tempered and suffering from insomnia, but had benefited from his counselling with Mr Gary Lawler. Dr Gill recorded that Mr Cullen’s speech was somewhat halting and vague, but he did not stutter as had been claimed.
Dr Gill diagnosed an adjustment disorder with depressed and anxious mood, secondary to the physical injury and its negative prognosis. However, he did not believe this affected Mr Cullen’s capacity for work or employment. Dr Gill estimated a whole person impairment, on psychological grounds alone, of 5% in accordance with The Comcare Guide to the Assessment of Degree of Permanent Impairment (2nd Edition) (the Comcare Guide).
In his evidence before the Tribunal, Dr Gill confirmed his written opinion. However, when informed that Mr Cullen had suffered from insomnia since he commenced shift work, Dr Gill considered this information reduced the significance of insomnia as a symptom of an adjustment disorder.
Mr Paul Hartley
Mr Hartley conducted a vocational assessment of Mr Cullen on 11 March 2013 (Exhibit R2). He assessed Mr Cullen’s education, training and experience, and job availability and suitability within the relevant geographical location at a reasonable driving distance. Having addressed all possibilities in detail, Mr Hartley concluded there were currently no further suitable employment options for Mr Cullen other than his current role as a school-crossing supervisor on a very part-time basis. Despite recommending Mr Cullen could benefit from an intense multi-disciplinary pain management program, Mr Hartley was of the opinion that the combined effects of Mr Cullen’s right shoulder disability and persistent pain, essentially renders Mr Cullen unavailable for work.
Mr Thomas Kossman
Mr Kossman, an orthopaedic surgeon, saw Mr Cullen on 19 September 2012 (Exhibit A3). Mr Kossman obtained the already known history in relation to Mr Cullen’s right shoulder. On examination, Mr Kossman found significant restriction of the right shoulder range of movement, leading to a whole person impairment rating of 11 per cent, in accordance with the Comcare Guide. Mr Kossman regarded Mr Cullen’s prognosis as poor and that he may ultimately be a candidate for a right shoulder replacement procedure.
In his oral evidence, Mr Kossman agreed with the recommendations of Mr Ian Jones (see below), that Mr Cullen should not perform activities above shoulder height or those involving pushing and pulling. Mr Kossman regarded packing and processing work as being totally inappropriate because of the constant movement and repetitive tasks involved, particularly in view of Mr Cullen’s propensity for further right rotator cuff tendon or muscle rupture.
Under cross-examination, Ms Dowsett drew Mr Kossman’s attention to Mr Cullen’s employment at Cibus Goats. Mr Kossman had not been aware of this employment from May 2010 until the end of March 2011 (although Mr Cullen did not perform active farm work between September 2010 and his resignation). Mr Kossman considered the type of work involved at Cibus Goats was ill-advised and likely to result in an aggravation of Mr Cullen’s shoulder injury if pursued over a long period. He was similarly opposed to horse riding.
Mr Ian Jones
Mr Jones provided two orthopaedic assessments of Mr Cullen, the first in late 2010 (Exhibit R1, T127) and the second in 2012 (Exhibit R11). On the first occasion, Mr Cullen had not undergone the second arthroscopy of February 2011 and was working at Cibus Goats, where he was said to be driving a tractor. Apart from the history already reported, Mr Jones ascertained that from the time of the original injury in 2007 until the operation in June 2008, Mr Cullen had continued to work at his normal duties. Following the first arthroscopy in June 2008, he was the subject of a return to work program, where he had worked as a mail sorter and sustained left shoulder rotator cuff symptoms and left elbow epicondylitis. Mr Jones also obtained the history of further injury to Mr Cullen’s right shoulder in August 2009, when he was shifting a curtain on the mail transporting vehicle. On physical examination on 17 November 2010, Mr Jones detected slight wasting of the deltoid muscle and a reduced range of movement in the left shoulder. Mr Jones’ further comments relate to the right shoulder.
Mr Jones diagnosed a tear of the right supraspinatus muscle, injury having been aggravated further in August 2009. He advised that further surgery was indicated and that, in his opinion, following such surgery, Mr Cullen would be left with a minor degree of permanent impairment.
Mr Jones reviewed Mr Cullen on 2 August 2012. He noted that Mr Cullen now had constant right shoulder pain and could not lift his arm above chest height without exacerbation of this pain. On examination the range of movement had further deteriorated. Mr Cullen provided Mr Jones with an MRI done on 14 August 2011 and Mr Jones agreed that it showed supraspinatus muscle thinning and osteoarthritis of the right acromioclavicular joint. Mr Jones thought a third arthroscopy was indicated but overall Mr Cullen’s outlook was poor. He could certainly not perform the occupation of a feedman or goat milking, but Mr Jones felt he would be able to do packaging and processing work on a full-time basis, provided he did not have to lift at or above shoulder height, or perform pushing or pulling activities.
In his oral evidence, Mr Jones again identified process work as within Mr Cullen’s work capacity but said he could only do this with restrictions designed specifically for him, as repetitive work would aggravate the condition. Mr Jones agreed it would be difficult for Mr Cullen to find such work in the open market.
Professor George Mendelson
In his report of 9 July 2012 (Exhibit R3, T183), Professor Mendelson detailed the known history of Mr Cullen’s right shoulder injury, noting that he had worked from the time of his injury until the operation in June 2008. During this period, Mr Cullen had said that he had difficulty sleeping due to his right shoulder pain. Mr Cullen described his sleep as poor, obtaining only four to six hours per night. Professor Mendelson reported that Mr Cullen did not admit to any other psychiatric symptoms, but expressed doubt as to his future and as being annoyed with the shoulder. Mr Cullen told Professor Mendelson that his general practitioner, Dr Bond, had felt that he was down and depressed. When asked to explain how he felt depressed, Mr Cullen responded that he became snappy and felt frustrated. Professor Mendelson concluded that there was no diagnosable psychiatric disorder and therefore no loss of capacity for work in respect to any psychiatric impairment. Professor Mendelson strongly advised that Mr Cullen be referred to a reputable multi-disciplinary pain management clinic.
In his oral evidence before the Tribunal, Professor Mendelson voiced his doubts regarding Mr Lawler’s qualifications as a clinical psychologist. Professor Mendelson had checked Mr Lawler’s entry on the Australian Health Providers Registration Agency (AHPRA) website. Professor Mendelson agreed with Mr Carey’s contention that some of Mr Cullen’s symptoms were consistent with a diagnosis of an adjustment disorder, however, in his opinion, he did not fulfil all the necessary criteria required for this diagnosis.
The Tribunal asked Professor Mendelson whether he felt Mr Cullen’s psychological symptoms hadn’t met the level imposed by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR) criteria, or that his symptoms did not impact on his functional capacity. Professor Mendelson replied ‑ both.
DOCUMENTARY EVIDENCE FOR THE TRIBUNAL
Mr Andrew Weber and Mr Malcolm Thomas
The treating orthopaedic surgeons, Mr Andrew Weber (Exhibit R1, T31, T37, T115) and Mr Malcolm Thomas (Exhibit R1, T130, T153) have provided reports of their operative findings and treatment of Mr Cullen, including post-operative follow-up. Where relevant, these reports have been referred to under BACKGROUND TO THE APPLICATION.
Mr David McIntosh
Mr McIntosh, an orthopaedic surgeon, provided medico-legal opinions on two occasions (Exhibit R1, T25, T35) confirming Mr Cullen’s supraspinatus tendon tear and bursitis and the necessity for surgery. He considered the injury to be work-related.
Dr Geoffrey Markov
Dr Markov is a rheumatologist. He first saw Mr Cullen on 17 October 2008 (Exhibit R1, T65) during Mr Cullen’s return to work program as a mail sorter after his right shoulder surgery in June 2008. Dr Markov diagnosed probable adhesive capsulitis secondary to the surgery, left rotator cuff tendonitis and a left tennis elbow (extensor tendonitis). Dr Markov opined that further physiotherapy was required for a period of three months and that Mr Cullen may require more definitive treatment of his left shoulder. Dr Markov considered Mr Cullen to have been totally incapacitated for work from 1 October 2008 until 29 October 2008 due to his left upper limb pathology.
Dr Markov confirmed his diagnosis of adhesive capsulitis on 18 November 2008, despite Mr Cullen’s treating physiotherapist disagreeing with such a diagnosis.
The general practitioner’s clinical notes
These notes have been examined in detail by the Tribunal but do not add any additional information, except in relation to Mr Cullen’s psychological symptoms. In March 2010 Dr Ronald Jones recorded that Mr Cullen had had sleeping trouble for quite a few years. Mr Cullen also considered that his sleep pattern had further deteriorated since his father died in December 2009, leading to a family dispute over his father’s will. Dr Jones elicited a history of a difficult upbringing and that Mr Cullen received frequent strappings by his father during his childhood. On the same day, 22 March 2010, Mr Cullen was seen by a Dr Elaine Gourlay regarding his long-term sleep difficulties, which she related to his shift work. She advised Mr Cullen as to sleep hygiene and habits and the possibility of keeping a sleep diary (Exhibit R18).
The general practitioner’s clinical notes from 2011 (Exhibit R5) indicate that a second opinion had been obtained from Dr Andrew McQueen as opposed to Dr Ashley Carr in October 2011.
Mr Gary Lawler
Mr Lawler is Mr Cullen’s treating psychologist. He provided a very brief report dated 15 February 2012 (Exhibit R3, T180), stating that he had been seeing Mr Cullen since August 2011 in relation to depression and an adjustment disorder and shoulder pain. The report included a copy of the mental health plan completed by Dr Michael Bond. Dr Bond had diagnosed depression and a situational adjustment disorder requiring psychotherapy and cognitive behavioural therapy. Mr Lawler’s actual consultation notes are included in that of the general practice and are brief. He does not enunciate Mr Cullen’s psychological symptoms, other that stating stress symptoms and depressed thought. The entries do record Mr Cullen’s pain levels, his financial problems and the progress of his compensation claims.
Cibus Goats Pty Ltd
Mr John Gommans, director of Cibus Goats, confirmed by letter dated 27 May 2010 that he had employed Mr Cullen, first as a casual and then from 13 September 2010 as a permanent employee. Mr Cullen had worked four days on and four days off with each work day being from 5:00 am to 7:00 pm. Mr Cullen’s duties were outlined as including milking goats and later as the yardman/feedman. Mr Gommans stated that he had offered Mr Cullen lighter work driving a tractor following his left leg gastrocnemius muscle tear on 26 September 2010. However, Mr Cullen had refused this offer. Mr Cullen subsequently resumed his usual work duties on 16 January 2011 and ceased work on 20 January 2011, in preparation for further shoulder surgery.
Mr Gommans expressed his concern that Mr Cullen had actually damaged his left gastrocnemius muscle while horse riding during the weekend immediately before he reported damage to his calf within a few minutes of commencing work.
RELEVANT LEGISLATION
The Act defines an injury and a disease under section 5A and 5B which state:
5A Definition of injury
(1)In this Act:
injury means:
(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.
…
5B Definition of disease
(1)In this Act:
disease means:
(a an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
…
(2)In this Act:
significant degree means a degree that is substantially more than material.
Section 14 of the Act deals with compensation for injuries.
14 Compensation for injuries
(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.
(2)Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Compensation in respect of medical expenses is addressed in s 16 of the Act.
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
…
Where an injury results in incapacity for work, s 19 of the Act provides:
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE - AE
where:
AEis the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWEis the amount of the employee’s normal weekly earnings.
The terms permanent, suitable employment and impairment are defined in s 4 of the Act:
4 Interpretation
(1)In this Act, unless the contrary intention appears:
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
…
suitable employment, in relation to an employee who has suffered an injury in respect of which compensation is payable under this Act, means:
(a)in the case of an employee who was a permanent employee of the Commonwealth or a licensee on the day on which he or she was injured and who continues to be so employed—employment by the Commonwealth or the licensed corporation, as the case may be in work for which the employee is suited having regard to:
(i)the employee’s age, experience, training, language and other skills;
(ii)the employee’s suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence—whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter; and
(b)in any other case—any employment (including self‑employment), having regard to the matters specified in subparagraphs (a)(i), (ii), (iii) and (iv).
…
permanent means likely to continue indefinitely.
SUBMISSIONS BEFORE THE TRIBUNAL
Applicant’s Submissions
Mr Carey provided a written outline of submissions to which he spoke.
He contended that the various descriptors attached to Mr Cullen’s right shoulder condition were of no effect, relying on the judgement of Madgwick J in Abrahams v Comcare (2006) 93 ALD 147. All of the specialists and treating doctors had agreed that Mr Cullen suffered a long term and continuing injury to his right shoulder that impacted on his work capacity.
Mr Carey submitted that the effect of the right shoulder injury was such that no alternative form of employment had been identified by any specialist, apart from Mr Ian Jones, that fell within the definition of suitable employment (s 4 of the Act), given Mr Cullen’s age, training, experience and the nature of the injury, other than his current position as a school crossing supervisor. Mr Cullen’s hours of work as a school-crossing supervisor had already reached the maximum hours available during school terms.
Based on the opinions of Dr Gill and Professor Mendelson, Mr Carey argued that Mr Cullen’s psychiatric state was caused by his right shoulder injury and its negative prognosis, regardless of whether the psychiatric injury or ailment was an adjustment disorder with depressed and anxious mood as diagnosed by Mr Gill, or an emotional response to the shoulder condition as diagnosed by Professor Mendelson. This relationship attracted the need for continuing psychiatric counselling (application no. 2012/3700) as did Mr Cullen’s chronic right shoulder pain. Mr Carey contended that the psychiatric injury was part of, or as opined by the psychiatrist, secondary to the physical injury. He further contended that it was not necessary to postulate, as had Australia Post, a separate injury being a disease under s 5B of the Act and requiring that any contribution be significant.
Mr Carey distinguished the decision of the High Court of Australia in Canute v Comcare (2006) 226 CLR 535 on the basis that Canute was a claim for permanent impairment and in such claims the Act provided for separate assessment of all injuries. Mr Carey contended that in Mr Cullen’s case, psychological counselling was a form of medical treatment attracting s 16 of the Act. The decision-maker is required to determine if the treatment is in relation to the 2007 right shoulder injury, thereby imposing a lesser burden of proof on the Applicant than the requirement to show a significant degree of contribution by employment to the injury under s 5B(3).
Respondent’s Submissions
Ms Dowsett conceded that Mr Cullen had suffered an injury leading to impairment and incapacity for work (s 14 of the Act) but argued that he had retained an ability to earn in suitable employment. She based this argument on the fact that following the injury of 2007 and its surgical treatment, Mr Cullen had returned to full-time normal duties in late 2009.
Ms Dowsett contended that Mr Cullen’s relocation to Trafalgar East in late 2007 was a lifestyle decision and a move towards semi-retirement. In her outline of the evidence, Ms Dowsett submitted that Mr Cullen had sought a certificate of ill-health on 20 May 2010 (Exhibit R5) to enable him to undertake a one month’s trial of the position at Cibus Goats, where he commenced working on 27 May 2010, three days before he resigned from Australia Post on 31 May 2010 (Exhibit R9). During this period of employment at Cibus Goats, the employer had no knowledge of Mr Cullen’s right shoulder injury.
Ms Dowsett said that during this time Mr Cullen had told his general practitioner, Dr Antony Wong, that the work at Cibus Goats did not impact on his shoulder condition (Exhibit R18, 21 July 2010). Despite this, Mr Cullen had requested a referral to an orthopaedic surgeon regarding his shoulder on 23 August 2010, having participated in an endurance horse ride on 14 August 2010. Ms Dowsett contended that this horse riding activity had aggravated Mr Cullen’s right shoulder condition, as would further endurance rides undertaken between April 2011 and April 2012 (Exhibit R12, R13, R16 and R17). Ms Dowsett argued that Mr Cullen’s participation in endurance horse riding suggests a greater physical capacity than he admitted to.
Ms Dowsett invited the Tribunal to consider these factors under s 5B(2)(e) of the Act regarding any other matters affecting the employee’s health.
Ms Dowsett further submitted that Mr Cullen has the ability to earn normal weekly earnings (NWE) in the area of processing and packaging.
Ms Dowsett contended that the claimed psychological state should be considered as a separate injury and not a sequelae of the right shoulder injury. In so doing she relied on the decision of the High Court of Australia in Canute where at [10] the Court said:
At this juncture, three things maybe observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee’s impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “work place accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee’s body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than one “injury”. The use in section 24(1) of the indefinite article in the expression “an injury” reinforces that conclusion.
And at [26] where the High Court referred to comments by Hill J at first instance at [10] where his Honour stated:
“ the measure of compensation is determinant by reference to percentage impairment. However, the right to compensation is created by the occurrence of an injury.”
His Honour concluded that the AAT had fallen into error because it characterised the adjustment disorder merely as “psychological sequelae” of a back injury, without considering whether it itself was “an injury”.
At paragraph [29] of the decision the High Court said:
On appeal to this court, the appellant supported the reasoning of Hill J and Giles J that the Act requires Comcare to determine separately the impairments arising from each injury … Such an outcome has both logic and simplicity to commend it. Where something is “an injury” why should not the quantum of compensation payable in respect of it be determined in the same manner for that “injury” as for any other.
Ms Dowsett, relying on the opinion of Professor Mendelson that Mr Cullen’s response to his physical injury was normal, contended that his emotional symptoms were neither an ailment nor an injury, and therefore did not attract liability under s 14 of the Act.
Ms Dowsett pointed out that while Drs Gill and Markov and Professor Mendelson had advised that Mr Cullen participate in a multi-disciplinary pain management program to be paid for by Australia Post, this was not before the Tribunal, as no claim for, or a decision in respect of, such treatment had been the subject of a reviewable decision.
THE TRIBUNAL’S DELIBERATIONS
Ms Dowsett submitted that the Tribunal is bound to follow the decision of the High Court in Canute and consider Mr Cullen’s claimed physical and psychological conditions as separate injuries. Mr Carey distinguished the decision on the basis that Canute was a claim for permanent impairment under s 24 of the Act and differed factually to Mr Cullen’s claim in that Mr Canute’s psychological impairment became manifest several years after his initial physical injury. Both submissions have merit. The High Court has stressed that the Act speaks exclusively in terms of “an injury” and while the matter before the Tribunal relates to s 14 and s 19 of the Act, the High Court’s decision and statutory interpretation is applicable. The Tribunal will consider the claimed injuries as two separate injuries, as opposed to a physical injury with psychological sequelae. Despite the expert medical support for the latter relationship, the Tribunal does so in order to establish the factual basis for the claimed psychological injury.
Psychological Injury (Application no 2012/3700)
Dr Gill diagnosed Mr Cullen to be suffering from an adjustment disorder with depressed and anxious mood, secondary to or as a sequelae of his right shoulder injury, albeit aggravated by the poor prognosis he received in late 2011. By definition under the DSM-IV-TR, an adjustment disorder is a psychological response to a stressor. Thus, medically speaking, it is a direct result of the right shoulder injury as submitted by Mr Carey.
Professor Mendelson did not identify the existence of a psychiatric disorder. He considers Mr Cullen’s reaction to his shoulder condition to be within the normal emotional range of response to such an injury.
Both psychiatrists and Dr Markov recommended a multi-disciplinary pain management program to assist Mr Cullen in dealing with his chronic right shoulder pain.
However, neither Dr Gill nor Professor Mendelson, regardless of their diagnoses, are of the opinion that Mr Cullen’s psychological injury/symptoms impact on his capacity for work or result in permanent impairment (to the necessary degree), as required by s 14 and s 24 (in relation to permanent impairment) of the Act..
Neither psychiatrist appears to be have been fully acquainted with Mr Cullen’s general practitioner’s (as referred to above) medical records (Exhibit R4), which reveal that his insomnia dates from the time he commenced shift work (2006), and that his so-called depression was attributed to his father’s death in 2009. Dr Gill, when informed of the duration of Mr Cullen’s insomnia, discounted this symptom’s significance as a diagnostic feature of an adjustment disorder. Both psychiatrists have acknowledged an increase in Mr Cullen’s symptoms on receiving a poor prognosis in 2011.
On the psychiatric evidence before the Tribunal, it is open to the Tribunal to determine that Mr Cullen’s psychological symptoms represent an adjustment disorder directly and indivisibly related to his right shoulder injury; or as a separate injury, as submitted by Ms Dowsett, in the form of a degree of depression, regardless of its description; or as the aggravation of an existing ailment as provided for in s 5B of the Act.
While the Tribunal is not convinced on the evidence that Mr Cullen has a diagnosable psychiatric disorder, it is not necessary to consider this further as both psychiatrists have opined that his psychological symptoms do not impact on Mr Cullen’s work capacity. Therefore, the condition does not meet the requirements of s 14 of the Act and is not compensable. There is no reviewable decision before the Tribunal relating to permanent impairment (s 19 of the Act).
In Comcare v Mooi (1996) 69 FCR 439, Drummond J rejected the Tribunal’s finding that a compensable disease could exist where the employee was not mentally ill, or mentally disturbed or suffering from any psychiatric disorder and found that it must be demonstrated that the employee is in a condition that is outside the boundaries of normal mental functioning and behaviour.
The Tribunal accepts Professor Mendelson’s opinion that Mr Cullen’s emotional symptoms in response to his physical injury and chronic pain fell within the normal range of response to such stressors. While accepting that Dr Gill was of a different opinion, the Tribunal notes that he discounted the significance of Mr Cullen’s insomnia when informed of its relationship to shift-work hours. Mr Lawler’s opinion and clinical notes do not assist the Tribunal, as they do not record Mr Cullen’s actual symptoms forming the basis of his diagnosis, although they do identify non- work related stressors that may be relevant.
The Physical Injury (Application no 2011/3056)
The medical evidence before the Tribunal clearly demonstrates that Mr Cullen suffered a right shoulder supraspinatus tear with associated subacromial bursitis in 2007. The parties agree that this is an injury as defined in s 5A of the Act. Australia Post accepted liability for this injury on 13 November 2007. Australia Post paid Mr Cullen compensation in accordance with s 19 of the Act until 20 March 2011 (Exhibit R1, T 143). The fact that Mr Cullen’s right shoulder injury results in his continued incapacity for work is not disputed by any of the medical experts.
Even if, as suggested by Mr Ian Jones, Mr Cullen could obtain employment in processing and packaging positions, the duties involved would be subject to restrictions as to lifting heights and weights and the performance of repetitive tasks. These requirements would make obtaining such work in the open employment market extremely difficult.
Mr Kossman and Mr Thomas believe that the risk of re-injury to the right shoulder, leading to rupture of the supraspinatus tendon, is high.
No suitable employment has been identified other than Mr Cullen’s current limited hours’ position as a school-crossing supervisor. However, even this type of work was not, in Mr Kossman’s opinion, without risk of further injury.
While Ms Dowsett has raised the possibility that other factors, such as endurance horse riding, have contributed to the aggravation of Mr Cullen’s right shoulder injury, there is no definite evidence before the Tribunal to support this hypothesis.
Dr Markov, Dr Gill and Professor Mendelson have all recommended that Mr Cullen could benefit from a multi-disciplinary pain management program in order to increase his work capacity. The Tribunal notes that Mr Cullen has not been offered or participated in a structured rehabilitation program.
DECISION
The Tribunal affirms the reviewable decision of 17 August 2012 in application no 2012/3700; and
The Tribunal sets aside the reviewable decision of 20 July 2011 in application no 2011/3056 and in substitution decides that:
a.in accordance with s 14 of the Act, the Respondent is liable to pay compensation to the Applicant in respect of the claim for right supraspinatus tear with subacromial bursitis; and
b.The Applicant is entitled to payment for incapacity under s 19 of the Act as of 21 May 2011 and at the present date, on the basis that his ability to earn in any particular week is equal to his actual earnings from employment as a school‑crossing supervisor with the Baw Baw Shire Council; and
The Respondent shall pay the Applicant’s reasonable costs and disbursements of the proceedings in accordance with the Administrative Appeals Tribunal General Practice Direction.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan. [sgd]........................................................................
Associate
Dated 16 August 2013
Date(s) of hearing 13, 14 and 15 May 2013 Counsel for the Applicant Mr Mark Carey Solicitors for the Applicant Mr Stuart Coutts, Maurice Blackburn Solicitors Counsel for the Respondent Ms Cathy Dowsett Solicitors for the Respondent Mr Damian Clarke, Clarke Legal APPENDIX
§Exhibit A1 – Medical report from Dr John Gill dated 20 August 2012
§Exhibit A2 – Medical Report from Mr Paul Hartley dated 11 March 2013 (The O R Group Pty Ltd)
§Exhibit A3 – Medical Report from Mr Thomas Kossman dated 19 September 2012
§Exhibit R1 – T Documents of application no 2011/3056
§Exhibit R2 – T Documents of application no 2012/0923
§Exhibit R3 – T Documents of application no 2012/3700
§Exhibit R4 – Medical Certificate from Dr Slavko Doslo dated 20 May 2010
§Exhibit R5 – Patient health summary from Tanjil Place Medical Centre
§Exhibit R6 – Google Map of Moe
§Exhibit R7 – Mr Cullen’s leave application dated 23 May 2010
§Exhibit R8 – Email sent by Mr Cullen to John Campbell dated 26 May 2010, regarding resignation
§Exhibit R9 – Letter of acknowledgement from John Campbell accepting Mr Cullen’s resignation
§Exhibit R10 – Job Profile from Cibus Goats of pre-injury duties dated 9 November 2010
§Exhibit R11– Physiotherapist’s notes dated 5 June 2009
§Exhibit R12 – 14 August 2010 VERA Riding Results
§Exhibit R13 – 10 April 2011 VERA Riding Results
§Exhibit R14 – 30 October 2011 VERA Riding Results
§Exhibit R15 – 26 November 2011 VERA Riding Results
§Exhibit R16 – 24/25 March 2012 VERA Riding Results
§Exhibit R17 – 28 April 2012 VERA Riding Results
§Exhibit R18 – Trafalgar Medical Centre medical notes (extract)
§Exhibit R19 – Mr Cullen’s payroll details from Cibus Goats from 25 May 2010 to 31 March 2011
§Exhibit R20 – Letter of application and resume from Mr Cullen to Baw Baw Shire Council for school-crossing supervisor position
§Exhibit R21 – Medical report by Mr Ian Jones dated 2 August 2012
§Exhibit R22 – Medical report of Associate Professor G Mendelson dated 18 January 2013
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