Galicia and Comcare (Compensation)

Galicia and Comcare (Compensation) [2017] AATA 2380 (24 November 2017)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2016/3211
GENERAL DIVISION  )
Re: Elsa Galicia
Applicant

And: Comcare
Respondent
CORRIGENDUM
TRIBUNAL:    Ms Anna Burke, Member
DATE:            12 December 2017
PLACE:          Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision as follows:

The date in paragraph 5 is amended from 20 April 2016 to 2 May 2016;

Paragraph 74 be amended to read as follows:
“[74] Based on the evidence before it the Tribunal affirms the decision under review dated 21 April 2016 and 2 May 2016”

All references to Medibank be replaced with Comcare.

[sgd]...................................................................
Member
Division:GENERAL DIVISION
File Number(s): 2016/3212, 2016/3213
Re:Elsa Galicia
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:24 November 2017
Place:Melbourne

The Tribunal affirms the decisions under review.
[sgd]........................................................................
Ms Anna Burke, Member
WORKERS’ COMPENSATION – Medibank Private employee – left shoulder injury - claim for compensation under the Safety Rehabilitation and Compensation Act 1988 - whether ongoing incapacity or entitlement to medical expenses – condition no longer attributing to current pain – no ongoing entitlement to compensation for incapacity payments - decisions affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1998
Cases
Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263.
Canute v Comcare (2006) HCA 47
Kennedy cleaning service Pty Ltd v Petkoska (2000) 200 CLR 286
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19
REASONS FOR DECISION
Ms Anna Burke, Member
24 November 2017
INTRODUCTION

Ms Galicia commenced employment with Medibank Private Limited in March 1987 and worked there for 28 years until she was made redundant in July 2014. On 21 August 2012 Ms Galicia submitted an incident report noting that on 29 June 2012 at 12:30pm she had a pain on the left side of the shoulder and that she had sought medical advice on 31 July 2012 where the doctor prescribed anti-inflammatory medicines, advised to rest and to see a physiotherapist/chiropractor. On 26 August 2012 Ms Galicia submitted a claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act). In the claim she noted the diagnosed condition of left shoulder trapezius strain, claiming that the injury was a result of sitting all day processing and that the actual injury was a result of the computer keyboard.
On 20 September 2012 an initial workplace assessment was undertaken for Ms Galicia to develop and manage a return to work plan to safe, sustainable and suitable duties. At this time an ergonomic assessment was also performed which recommended numerous adjustments be made to her workstation and posture.
On 6 November 2012 Comcare accepted liability under section 14 of the SRC Act in respect of sprain and strains (left rhomboid muscle only) as it was satisfied that Ms Galicia had suffered from an ailment as defined in the Act which had been significantly contributed by her employment resulting from an injury on 31 July 2012.
On 31 March 2016 Comcare determined that it had no present liability in respect of Ms Galicia’s claim. The Comcare delegate found: I am convinced you are experiencing ongoing pain. However, the issue is whether your compensable condition is the source of that pain. Alternatively, even if it is accepted that it is the source of your ongoing pain, whether any ongoing treatment is necessitated by your compensable condition.

The delegate determined Ms Galicia had no present entitlement to compensation in respect of medical expenses under section 16 of the SRC act and no present entitlement to incapacity payments under section 19 of the SRC act.
Ms Galicia requested an independent review of the determination of 31 March 2016 and the decision was affirmed by the review officer on 20 April 2016. Subsequently, on 20 June 2016 Ms Galicia applied to the Administrative Appeals Tribunal (AAT) for review of this determination contending it was incorrect at law and Comcare was and was liable under the SRC Act to pay compensation under section 16 and 19 of the SRC Act in respect of her left shoulder injury.
The application was heard over 11, 12 and 13 September 2017. At the hearing Ms Galicia was represented by Mr Scott Davison of counsel, instructed by Patrick Robinson & Co. Lawyers. Comcare was represented by Mr Roy Seit of counsel, instructed by Sparke Helmore Lawyers. The Tribunal was provided with the documentation under s 37 of the Administrative Appeals Tribunal Act 1975 (T‑Documents, Exhibit R1). The Applicant lodged several medical reports and a substantial list of authorities. Ms Galicia, Dr Arthur Papagelis, general practitioner, Mr Ben Jaffe, physiotherapist, Mr Kenneth Myers, consultant general surgeon, Mr Anthony Bonomo, orthopaedic surgeon, Mr Trung Nguyen, orthopaedic surgeon, Dr Tony Kostos, consultant rheumatologist and Dr Dale Curtis, orthopaedic surgeon, gave evidence before the Tribunal.
BACKGROUND
Ms Galicia came to Australia as a small child from Uruguay. After completing her secondary schooling she commenced work at the antecedent to Medibank Private and worked there for 28 years until she was made redundant in 2014. Ms Galicia commenced work in the mailroom and then predominantly worked in claim processing. At the time of her injury she was an ongoing full-time customer service operator processing hospital claims at the Docklands site. Ms Galicia is married and has three children.
Ms Galicia’s responsibilities included the following duties: processing claims via data entry audit and assess claims, checking emails, taking/making phone calls to hospital providers, reading contracts and attending meetings. Her role was described as predominantly computer-based, it making up 95% of her duties. The remaining 5% entailed rest breaks, attending meetings and collecting batches of claims. Her relevant job demands were described as prolonged sitting over an eight hour period five days per week, repetitive but intermediate typing and mousing over eight hours, occasional lifting of heavy batches of claim forms, rare use of the telephone, rare frequency of reading contracts and constant referencing of claim paperwork requiring repetitive neck flexion and rotation. Ms Galicia was required to meet specific allocated time targets for processing claims and on average most claims took 1 minute to 30 minutes to complete. Ms Galicia is right hand dominant.
From September 2009 until June 2012 Ms Galicia’s medical history indicates a history of intermittent lower back pain radiating to the left leg and ending at the back of the calf, and neck pain radiating to the left wrist. A functional x-ray and MRI scan at this time indicated the cervical and lumbar spine were all normal. A nerve conductor study of the left upper limb was also conducted which again found no abnormality and there was no evidence of left carpal tunnel syndrome.
On 31 July 2012 Ms Galicia consulted Dr Papagelis, general practitioner, in respect of her sore left shoulder which she advised had been sore over the past four weeks. Dr Papagelis recorded in his medical notes that the left shoulder ache was over the rhomboids and trapezius area. He had hoped for a rapid recovery on his diagnoses of a soft tissue bruise/strain, musculoligamentous type injury but it was not to be. Dr Papagelis referred Ms Galicia to Mr Bernard Lynch, but she was not happy with him and so she sought a second referral to Mr Eden Raleigh. Ms Galicia then requested a third referral to Mr Trung Nguyen and was then referred to Mr Clayton Thomas, pain specialist. In 2016 Ms Galicia insisted on seeing another orthopaedic surgeon, Mr Anthony Bonomo.
A Comcare Initial Workplace Assessment report of 20 September 2012 noted that:
Ms Galicia is at risk of not returning to work and other factors need to be addressed to eliminate or reduce the risk of a failed RTW. Ms Galicia’s responses reveal some unhelpful beliefs about pain, which indicate some fear avoidance behaviours. Based on the results of the assessment, factors that need to be addressed are:
·Ms Galicia’s perception of pain and that her pain is preventing her from carrying out her normal work and daily activities. Ms Galicia would benefit from some education to improve her understanding of pain.
Ms Galicia had accepted time off work from 31 July 2012 to 10 August 2012 and again from 31 August 2012 up to 7 September 2012 as a result of her claimed injury. Additionally, she had time off following the two surgical procedures to her left shoulder.
Ms Galicia was placed in a return to work program from 19 September 2012, performing 12 hours a week over three days per week until 21 July 2014 when she was made involuntarily redundant by Medibank Private, for reasons unrelated to her workplace injury.
Ms Galicia’s medical treatment for her left shoulder condition is as follows:
(a)On 18 October 2012 Dr Bernard Lynch, orthopaedic surgeon, reviewed Ms Galicia and reported that she presented with four months of pain around the superior aspect of the left shoulder, the trapezius, periscapular region and previously in the left side of the neck. Dr Lynch further noted that Ms Galicia finds that her symptoms are aggravated with the lifting of the arm. Dr Lynch also reported that there had been no obvious injury. He noted treatment has included Mobic, physiotherapy and chiropractic work. Examination of Ms Galicia showed a good range of motion in the cervical spine, both rotations and lateral flexion aggravation of the left superior shoulder pain. The left shoulder had a full range of motion and no sign of impingement. The rotator cuff had quite good strength. Ms Galicia had a combination of cervical spine degenerative disease with referred pain and periscapular movement disorder.
(b)On 20 November 2012 Dr Lynch reported on the findings of an MRI scan of the cervical spine and the left shoulder which found Ms Galicia had a degree of degeneration at C3/C4 level, which may be giving her some referred pain from the cervical spine into the side of the neck, the trapezius and the periscapular region. With regard to her shoulder, the MRI scan reported the presence of minimal tendinosis but this is not clinically relevant. Non-operative supportive measures for the cervical spine were recommended.
(c)On 27 November 2012 Mr Raleigh reviewed Ms Galicia. He observed she had problem of left shoulder pain in her non-dominant side and had a lot of physiotherapy to the area. On examination, Mr Raleigh reported:
The pain is mainly in the supraspinatous (sic-supraspinatus) fossa area, worse with elevation when I examined her she does present with quite classic impingement sign. There was no real cuff weakness, the AC joint, biceps and labrum all looked okay, there was no muscle wasting and normal stability.
He recommended it was worth at least trying one injection into the subacromial space to see the response.
(d)On 6 February 2013 Mr Raleigh reviewed Ms Galicia and found the injection did not provide any benefit at all in the first couple of hours, which was quite concerning as usually the local anaesthetic does have an early effect. Mr Raleigh provided Ms Galicia with an injection into the subacromial space that day with some local anaesthetic, to see if it made any difference at all. Ms Galicia advised she was approximately 40% better in terms of loss of impingement type pain, however, she was still experiencing some muscle belly type pain.
(e)On 26 February 2013 Mr Raleigh again reviewed Ms Galicia and found the second injection did not provide any benefit. He expressed concerned about this as Ms Galicia was not responding to any form of therapy. According to Mr Raleigh, the results of the MRI were not all that impressive. He reported:
…there was no real impingement, it was really only on clinical examination, her AC joint was a little bit tender but not too bad on MRI again and I’m a bit worried about performing an arthroscope in this situation.
(f)On 26 March 2013 Mr Raleigh reviewed Ms Galicia and found the third injection did not provide any benefit. He opined the next step was an arthroscopic decompression, but observed that he was worried this may not be successful as Ms Galicia had not responded well to early anaesthetics.
(g)Also on 26 March 2013 Mr Raleigh provided a response to Comcare in relation to whether or not specialised pain rehabilitation may be worthwhile. Mr Raleigh opined that given there is no strict indication for urgent surgery, it would be worthwhile to attempt specialist pain rehabilitation. However, he did not hold great hope that this would make any difference to her clinical course as she had had multiple conservative approaches including injections which had so far failed to improve her pain symptoms.
(h)On 28 May 2013 Mr Trung Nguyen, orthopaedic surgeon, reviewed Ms Galicia. He opined her examination was consistent with very strong impingement and significant subacromial bursitis. He further reported that Ms Galicia has had failed conservative treatment and agreed that the next option is arthroscopic decompression surgery. He advised that chronic pain management is only the last option if everything else has failed.
(i)On 30 May 2013 an MRI found the AC joint was normal, other than the presence of a mild interior acromial hook which slightly indents the musculotendinous junction of supraspinatus and is associated with the reduction of subacromial space. He further noted some mild supraspinal tendinosis and minimal bursitis.
(j)On 5 August 2013 Ms Galicia underwent a left shoulder arthroscopic SAD & AC joint resection. The subacromial space arthroscopic findings indicated that the subacromial bursa was very thickened and inflamed, the acromial spur was thickened Type II with lateral spur and the AC joint had significant arthritis.
(k)On 19 September 2013 ongoing twice weekly physiotherapy treatments, chiropractic treatments and hydrotherapy until the cessation of the claim.
(l)On 26 September 2013 Mr Nguyen reviewed Ms Galicia post-surgery and found she had regained almost a full range of motion back into her left shoulder with the exception of internal rotation. Mr Nguyen further reported that the next stage was a rehabilitation programme aimed at regaining normal muscle strength.
(m)On 22 October 2013 Mr Nguyen again reviewed Ms Galicia and found she had developed more pain and some stiffness in her shoulder post-surgery. He referred Ms Galicia to undergo hydrodilatation.
(n)On 19 November 2013 Mr Nguyen again reviewed Ms Galicia’s post-operative frozen shoulder. He observed that her condition had worsened and recommended an arthroscopic capsular release and manipulation.
(o)On 8 January 2014 Ms Galicia underwent left shoulder arthroscopic capsule release and manipulation. The gleno-humeral arthroscopic findings indicated that there was of severe synovitis with thickened scarring joint capsule all the way around the joint. It also indicated that the long head of Ms Galicia’s biceps had minor fraying and that her subscapularis was normal but with thickened scarring to cover the tendon. The rotating interval had thickened scar and was obliterated and inflamed, the rotator cuff was normal and the rest of the joint was otherwise normal.
(p)On 19 February 2014 and 19 March 2014 Mr Nguyen reviewed Ms Galicia and found she had regained about 70% of her normal range of motion back into her left shoulder and that she needed to focus on stretching exercises with an aim to regain a full range of motion back
(q)On 29 April 2014 Mr Nguyen reviewed Ms Galicia and found she had regained about 90% of her normal range of motion in her left shoulder. He indicated that he was hopeful she would be back to normal over the next three months and she was currently undergoing hydrotherapy and physiotherapy. He noted she was tolerating her light duties at work quite well.
(r)On 17 June 2014 Mr Nguyen reviewed Ms Galicia and found she had regained about 95% of her normal range of motion back into her left shoulder, apart from external rotation in comparison to her other side. He recommended that Ms Galicia continue with external rotation exercises.
(s)On 16 September 2014 Mr Nguyen reviewed Ms Galicia and found she had a full range of motion back into her shoulder. He reported that she still experienced some anterior pain and tenderness over the acromion from a bone bursitis and neuroma and he suggested deep tissue massage for this issue.
(t)On 14 October 2014 an MRI of left shoulder revealed a small tear of the superior labrum at approximately the 12 o’clock position (SLAP tear). It further revealed that the long head of the biceps tendon was intact without tenosynovitis and that there was no evidence of subacromial bursitis or rotator cuff tear.
(u)On 21 October 2014 Mr Nguyen reviewed Ms Galicia and found she still had persistent interior shoulder pain for which the MRI scan only showed a small SLAP tear. He indicated that he therefore had referred her to have a steroid injection along the long head of the bicep tendon.
(v)On 9 December 2014 Mr Nguyen reviewed Ms Galicia and found the injection along the long head of the bicep tendon did not make any difference to her anterior shoulder pain and therefore the SLAP tear was not the cause of her residual shoulder pain. The MRI scan did not identify any other pathology.
(w)On 29 January 2015 Mr Anthony Bonomo, orthopaedic surgeon, reviewed Ms Galicia. On examination she had near full range of movement in the shoulder and was not particularly irritable. He reported that the MRI demonstrated an adequate subacromial decompression had been performed and advised that the SLAP tear could be ignored as it was not contributing to her symptoms. Mr Bonomo indicated that he had reassured Ms Galicia that no further investigations or treatments were required.
(x)On 10 March 2015 Mr Nguyen reviewed Ms Galicia and found that despite having regained a full range of motion back into her left shoulder, she still experienced persistent shoulder pain which was constant and worsening at extreme range of motion. He opined that this was due to rotator cuff muscle dysfunction and weakness from prolonged shoulder problems. He requested that Ms Galicia have more sessions of physiotherapy, hydrotherapy and enrol in a gym membership.
(y)On 9 June 2015 Mr Nguyen reviewed Ms Galicia and found her symptoms had not changed. He noted that Ms Galicia was in constant pain and he thought her next option was chronic pain management
(z)On 20 August 2015 Dr Clayton Thomas, consultant in rehabilitation and pain management, reviewed Ms Galicia and opined that she was suffering from a chronic pain syndrome involving the left shoulder girdle more so than the shoulder per say. He opined that he was not convinced that this was an intrinsic shoulder problem. Rather, he reported it was more likely chronic pain syndrome with signs of central sensitisation.
(aa)On 19 November 2015 Dr Thomas reviewed Ms Galicia and found that an MRI of the left shoulder showed a very stable picture. He opined that there was no evidence of rotator cuff tear and no evidence of residual capsulitis. He observed that Ms Galicia had a lot of tenderness around the shoulder and shoulder movements were irritable. He opined that this was all part of the chronic pain syndrome.
(bb)On 8 March 2016 Mr Nguyen reviewed Ms Galicia and found she had persistent left shoulder pain which had not changed much in the last year. He opined the next logical surgical treatment option was to perform an arthroscopic SLAP repair and long head of bicep tendon tenodesis.
ISSUE

The Tribunal needs to consider the following relevant issues:
(a)whether Ms Galicia suffered an injury within the meaning of the SRC Act;
(b)if so whether the injury was contributed to a significant degree, by Ms Galicia’s employment at Medibank;
(c)whether Ms Galicia continues to suffer from the effects of the injury;
(d)whether Ms Galicia has a continuing incapacity to work;
(e)whether Ms Galicia suffered from secondary injuries arising from reasonable compensated medical treatment;
(f)if so whether Medibank was liable to pay:
(i)for further claimed surgery, and if so whether the surgery is reasonable medical treatment for the compensable injury;
(ii)for ongoing medical expenses under section 16 of the SRC Act from the date of cessation of payment on 31 March 2016; and
(iii)for ongoing incapacity payments under section 19 of the SRC Act from the date of cessation of payment on 31 March 2016.
RELEVANT LEGISLATION
The relevant statutory provisions in this case are as follows:
(a)Section 14(1) of the SRC Act provides that, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(b)Section 4 of the SRC Act defines an ailment to mean any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development. Relevantly, the interpretative provision at Section 4(1) provides that the words injury and disease have the meaning detailed in sections 5A and 5B respectively of the Act as follows:
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 determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
On 31 March 2016 in accordance with the SRC Act, Comcare determined that the source of Ms Galicia’s ongoing pain was not related to her compensable condition nor was it as a result of approved surgery.
As a result of such a determination, liability under s 16 and s 19 was denied. Section 16 of the SRC Act states:
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.
Section 19 provides for compensation for injuries resulting in incapacity and states:
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:
AE is 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.
NWE is the amount of the employee’s normal weekly earnings.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
Ms Galicia
Ms Galicia described at length the requirements of her position, which she described as predominantly involving data entry with the rest of her time spent collecting files (generally two batches of 30) which she would collect from the compactors and take to her desk. She was asked by counsel:
How did you find sitting at a desk for 99% of your day, working on a computer? --- It was draining.
In what way? --- Because especially some days they would say: okay, today is a blitz. You have to just capture and capture and capture. No getting up to go - you know, not getting up for a walk or you know, for a walk to talking to, you know, your colleagues it was just capture capture capture capture.
Ms Galicia advised the Tribunal that the ergonomics of her workplace had not been properly assessed and that they did not have proper chairs. She described the chairs as always being broken and that she and many others in the centre were always complaining that the chairs at the site were not providing proper support. She also stated that sometimes the desks would not work, as you were not able to lower them. Ms Galicia also described other times where workers from the health and safety division came into her workplace to attempt to fix the desk and get proper chairs as they were awful to sit on, but this never seemed to fix the problem. Ms Galicia’s workstation was assessed after her injury was reported. Numerous alterations were made to her chair, desk and the configuration of her computer set up. In addition to this, she was given advice in respect of her posture
Ms Galicia advised the Tribunal at the hearing that she had never experienced pain in her shoulder before the incident in 2012. She was asked if she could describe the circumstances surrounding the June 2012 incident, to which she responded:
…well I started getting – I started getting pain on my shoulder, but I thought it would probably just, you know the chairs or, you know, I thought it would probably go away. Then the pain was getting more and more intense, so I went to the doctor, and my doctor said: “Well, see how you go, I will start giving you a few hours, take a few days off, and see how you go. The pain wasn’t getting any better so he put me on work restrictions – restricted hours, and he set me also to a physio.
Counsel for the respondent took Ms Galicia through her work duties and asked the following:
And what hand were using to operate the mouse?– – – Right hand
So all of the movement with the mouse is done with the right hand? – – – Yes
Did you type with their both hands or just – – – ? – – – Just one hand because you have your – the numbers were on the right side of the keyboard.
So what you’re saying is that essentially you would use the mouse with your right hand? – – –M’mm
And if you had to input numbers you’d also use your right hand to operate the numerical keypad? – – – Yes
What about the left hand? Was that being used to input data on the keyboard? – – – No
And you’re right hand dominant aren’t you? – – – Yes
Counsel for the respondent also examined Ms Galicia in respect of her claim that this was the first time she had experienced pain in her left arm:
So I put it to you that there is a long history of your complaining about this referred pain to your left arm, is there? – – – Yes
It goes back to at least 2009 and probably 2008 and it’s definitely not pain is it, it’s numbness and tingling and it’s a shooting pain.
The member asked do you agree with that? – – – Yes
Ms Galicia was adamant that the pain she was experiencing from her injury in 2012 was different from the symptoms she experienced in her left arm in 2008 /2009.
Ms Galicia advised the Tribunal that she felt her injury had been the result of all the repetitive work she had performed over a number of years. She described how sitting down eight hours a day over 28 years doing the same repetitive work of keying data and carrying files had accumulated the pain in her left shoulder. She was adamant the pain was isolated to the shoulder region and her goal was to be pain free.
Ms Galicia further advised the Tribunal that her symptoms continued to the present day but they were not as bad as when she was at work processing all the time. However, she had noticed a difference when she stopped work but the pain was still there; but this it was not as bad as when she was working.
Ms Galicia advised the Tribunal that she was having physiotherapy treatment once per week and hydrotherapy twice per week from 2012 to 2015. She believed that the physiotherapy was giving her relief from the pain but not completely, and that she had noticed the pain had increased since she had not been having manipulation done on her shoulder weekly. She believed that the hydrodilatation was very helpful as the warm water used provided great relief to the pain.
Ms Galicia also advised the Tribunal that she was unable to perform many household duties. She stated that she could not vacuum, mop the floors or hang washing on the line and relied heavily upon her husband and children to assist with household chores.
Ms Galicia advised the Tribunal that she believed surgery was her only option to resolve the ongoing pain in her left shoulder. She stated that she was aware that there was no guarantee that this surgery would be successful but she believed she now had an additional issue of a SLAP tear which needed to be addressed. Ms Galicia was of the belief surgery was her only hope, regardless of the fact she had had numerous cortisone injections and two surgical procedures which to date had not resolved her issue. Indeed, there was some contention that previous surgery had made her condition worse.
Medical Evidence
Dr Arthur Papagelis, General practitioner
Dr Papagelis provided a report to the Tribunal and gave oral evidence at the hearing. In his report of 14 March 2017 he stated:
To date we can report that Elsa has had a difficult time over the last four years since she first reported her left shoulder condition. Her management had input from multiple surgeons and required several procedures. She has had a rocky course over this same time and appears to be in not (sic) better condition than at the start him mostly self-initiated surgical interventions. I can say that in my opinion her surgeries in a clear way contributed to a worsening of the left shoulder pain.
In summary Elsa currently suffers with chronic pain syndrome, chronic pain, left shoulder movement restriction at extreme range, poor coping with pain and stress, anxiety with depressive ideation and insomnia.
Dr Papagelis advised the Tribunal that he had been Ms Galicia’s general practitioner since 2002. He understood her duties to be predominantly data entry which required extensive periods of sitting and as far as he was concerned her injury was work related. However, he was surprised to discover that she did not utilise her left hand in the performance of her duties and at no stage did he believe her problem was associated with the cervical spine. His original diagnosis was pain between the spine and left scapula and this had resulted in ongoing discomfort to her left shoulder.
Dr Papagelis further advised Ms Galicia not to have any more surgery, as she had previously undergone a lot of surgery which had not assisted her pain. Indeed, he was of the opinion surgery had not helped but had made her condition worse. He did not think any more would be of benefit to Ms Galicia. In turn, he advised her that a SLAP tear usually settled down in time. Dr Papagelis stated this was also the orthopaedic opinion that she received. He was adamant that he would not recommend any further surgery.
Dr Papagelis also advised that Ms Galicia did a lot of research and asked around about her condition as she felt that it could be something more serious and asked for a second opinion. He stated that everyone is entitled to a second opinion or a third if they do not agree with the previous doctor. Mss Galicia had thought it was something else because of the ongoing pain it was causing her and she was suffering so much discomfort at the time.
Mr Ben Jaffe, physiotherapist
Mr Jaffe provided a report to Comcare and gave evidence at the hearing. In his report of 20 February 2015 he opined:
Elsa has a labral tear in her left shoulder at the 12 o’clock position which restricts her shoulder flexion and abduction ROM, as well as giving her regular pain in the shoulder. Her surgeon feels conservative management is the appropriate treatment and that surgery is not warranted and as such she requires further physiotherapy in order to stabilise her scapula, strengthen her shoulder which will allow healing of the labral tear.
I am requesting a further six treatment sessions over a three-month period with a re-evaluation at the end of this period to review Elsa’s progress.
Mr Jaffe advised the Tribunal he had been treating Ms Galicia since 2014 as part of a rehabilitation programme post-surgical procedures. He had noted good movement in her shoulders but that she still had pain for which he had been performing massage and dry needling. He opined that she had sustained the SLAP tear in her labrum as a result of her initial work injury and he understood her job to be data entry that was computer-based at Medibank Private.
He advised the Tribunal that Ms Galicia’s physiotherapy treatment was providing pain relief and had improved the range of motion in her shoulders. He did not consider it best practice for indefinite physiotherapy. Ideally, he would see a patient for 3 to 6 months post-surgery but that each individual was different and he had assessed Ms Galicia as needing ongoing management.
He advised the Tribunal that he considered surgery for the SLAP tear was a viable option.
Mr Anthony Bonomo, orthopaedic surgeon
Mr Bonomo provided a report to Ms Galicia’s general practitioner and gave evidence at the hearing. In his report of 29 January 2015 he opined:
On examination, she has a full range of movement and the shoulder was not particularly irritable. The MRI demonstrates an adequate subacromial decompression has been performed. I have told her the SLAP tear can be ignored as it is not contributing to her symptoms. I have reassured her that no further investigation or treatments are required.
Mr Bonomo said that he had originally discounted the SLAP tear as that is generally a sportsman injury, typically seen in throwing athletes, which he did not believe was the case in respect of Ms Galicia. He also advised that he had seen Ms Galicia on two occasions which were one year apart and that she had continued to experience symptoms of pain and that one alternative was to seek a surgical option. But he could not guarantee that surgery would resolve the situation, noting the possibility of performing the surgery and finding nothing there.
Mr Kenneth Myers, consultant general surgeon
Mr Myers provided a report to the Tribunal and gave evidence at the hearing. In his report of 11 April 2017 he considered that the damage to her left shoulder resulted from repetitive use of the left arm in the course of work activities. He further noted that Ms Galicia had undertaken multiple operations but her disability had persisted. He further opined that future treatment would be conservative, and did not favourably view her prognosis on the basis of her severe disability.
Mr Myers advised the Tribunal that it was his opinion that work was the cause of Ms Galicia’s injury. He believed this to be the case because of the length of time and the pain suffered. He did not believe that the pain in her shoulders was coming from her neck and felt it highly unlikely that experienced surgeons would operate on the wrong part of the anatomy. Impingement was more a clinical diagnosis observed as part of dynamic testing and that he did not take patients beyond the point of pain in respect of the range of motion.
In his view, the benefit of further surgery was debatable. He opined another arthroscope should in theory improve her condition but the first caused a frozen shoulder so another could do the same and indeed reduce the range of movement. He advised the Tribunal he would be reluctant to agree that surgery would produce any improvement.
Mr Trung Nguyen, orthopaedic surgeon
Mr Trung Nguyen, orthopaedic surgeon, provided a report to Ms Galicia’s general practitioner and gave evidence at the hearing. In his report dated 8 March 2016 he opined:
Her shoulder pain is constant and further aggravated with elevation and also night pain. Examination of the shoulder today was suggestive of long head of bicep tendon tendinitis which was the cause of persistent left shoulder pain. The MRI scan of her shoulder in October last year showed the persistent SLAP tear.
Therefore the next logical surgical treatment option is to perform an arthroscopic SLAP repair and long head of Biceps tendon tendonitis.
Mr Nguyen advised the Tribunal that Ms Galicia’s injury was a result of repetitive movement over a long time that had been most likely contributed to by her typing for whole days, with poor posture and inappropriate ergonomics of her workplace. This combination of factors would have put stress on her shoulders and resulted in pain in her shoulder. He further advised that the pain could have been experienced in either the left or right shoulder and his opinion was not changed when he was advised she did not utilise her left hand whilst keying. He was also of the opinion that the pathology was a shoulder pain and was not caused from the neck or spine.
Mr Nguyen further opined that the injury process from a trapezius strain in the scapula to impingement syndrome at the tip of the shoulder may have come about as a result of the need for the change of movement in scapula. Furthermore there was no normal movement and he observed that Ms Galicia had to compensate by additional movement of the shoulder which he noted could lead to impingement. He also noted that her scapula did not allow normal movement.
Further, Mr Nguyen was of the opinion that whilst the injections into Ms Galicia’s shoulder had not been successful in reducing the pain, this did not necessarily mean that the pain was coming from her left shoulder. It was his opinion that the original surgeries were not looking for a SLAP tear and in any event, they are generally small and not reportable. He did not think the SLAP tear was contributing to the symptoms at the time of the original surgery but as Ms Galicia is continuing to experiencing chronic pain and that pain is aggravated by extreme point of movement he believes the SLAP tear is the cause of the current problems. As the SLAP tear is a treatable condition and it could be fixed in surgery he believes it would be beneficial to Ms Galicia. He advised the Tribunal he would not operate on a person who is experiencing chronic pain syndrome.
Dr Tony Kostos, consultant rheumatologist

Dr Kostos provided a report to the Tribunal and gave evidence at the hearing. In his report of 28 December 2016 he opined that:
Ms Galicia was initially diagnosed with a left trapezius muscle strain and you have indicated that this is the ”compensable injury”.
The problem here is that she never had a trapezius muscle strain and this condition does not exist. For a muscle to be strained it needs to be stretched beyond its pathophysiological limit. This did not occur. Furthermore a muscle strain resolves in 2-3 weeks and a muscle tear in 3-4 weeks.
The cause of the pain was a classic pattern of referred pain from her cervical spine and I was able to reproduce this pattern of referred pain today.
Shoulder pain is not felt in the trapezius muscle. Shoulder pain is noted in the tip of the shoulder and this refers to the upper arm.
Therefore Mr Lynch was correct with his diagnosis and subsequent doctors have ignored this.
Her condition almost certainly relates to constitutional disc degeneration and osteoarthritis in her cervical spine and when it became stiff it produced the pain. When I mobilised her neck the pain resolved proving the origin of the pain.
This was not significantly contributed by her work Medibank Private. It is a constitutional condition.
Her condition should have improved with some simple physiotherapy but as the correct diagnosis was never appreciated does not appear as though appropriate treatment was ever undertaken.
It was conclusively proven that Ms Galicia did not have subacromial impingement in her left shoulder nor pain arising from her left AC joint and therefore it defies rational explanation is why surgery was undertaken on these areas. It was entirely predictable that surgery would fail.
Subsequently she developed a frozen shoulder following her first surgery which could have been treated conservatively but she had further surgery and according to Ms Galicia at this did not make great deal of difference to her.
Two of the Specialists that she has seen, who both indicate that the SLAP tear was a coincidental finding on her MRI scan have completely ignored their own opinions and recommended surgery to deal with this issue.
The SLAP tear is a coincidental finding and is not related to any of her presentation today.
Dr Kostos opined that sitting in a stationary position could have resulted in a neck condition and that a proper diagnosis should have led to physiotherapy and release of the neck pain. He opined that as the first and second surgical procedures on the left shoulder did not result in any help but in fact resulted in a frozen shoulder causing more pain, there was no evidence to support the conclusion that the injury was in fact related to the left shoulder. Further, there was no evidence that the SLAP lesion is the cause of the current pain. He opined that muscle strain cannot lead to a damaged rotator cuff and therefore there was no evidence supporting left shoulder pain.
Dr Dale Curtis, orthopaedic surgeon
Dr Curtis provided a report to Comcare on 3 March 2015 for medico-legal purposes and gave evidence at the hearing. In his report he opined:
…The causation analysis therefore would suggest that the problems are part constitutional and part degenerative, unrelated to injury, though it is accepted that employment has no doubt aggravated or exacerbated the above matters.
Treatment has been appropriate, in terms of further treatment there is no indication for any further surgery in spite of the appearance of a SLAP tear. Given her range of movement today and a capacity for work I think she is best left as is.
…
She now suffers post-operative minor stiffness with discomfort, with very few convincing physical signs to support her symptoms.
Her prognosis overall is good … it was my opinion she is now symptom orientated.
…
No further treatment is required specifically other than a good home-based stretching exercise program. There is nothing in the literature to suggest that continued physiotherapy has anything to offer this lady, or any other specific treatment as far as I can determine.
Dr Curtis opined that the hook acromion was the cause of Ms Galicia’s left shoulder pain and in fact the hook acromion was an anatomical abnormality which Ms Galicia would have had since birth. He opined the issue was not a result of an injury but a constitutional one being something she had been born with, which sooner or later would have failed and corrective surgery would have been required. He further noted that there did not appear to be a single traumatic event that resulted in her injuries, and did not perceive that there was anything grossly abnormal or unusual about her duties which would have resulted in the injury.
Dr Curtis did not believe Ms Galicia’s issue was related to her neck or spine but was suffering from a left shoulder pain. He opined if it was a simple musculoskeletal strain it would have been expected to be completely resolved within six months at the most. He believed the treatments so far had been orthodox and had resulted in fixing her genetic shoulder issue which would have deteriorated with age. When he examined Ms Galicia she was neurologically normal and had nearly a full range of movement. He therefore did not believe there was a need to perform another arthroscopy and that is why he made the comment in his report that it was best left alone.
Consideration
The respondent contended that Ms Galicia had never suffered from a compensable injury and relied upon the opinion of Dr Kostos who opined that Ms Galicia’s condition was not in the shoulder but that she was suffering from age-related disc degeneration and osteoarthritis in the cervical spine which resulted in referred pain in her left shoulder and that this was unrelated to her work. The respondent referred to and relied on the decision in Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263.
The Tribunal concurs with the views of Heerey, Dowsett and Conti JJ in Hannaford that the SCR Act is a flexible instrument and notes the following passage of that decision (at 282-283):
The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlement in the nature of course of workers compensation, being reviewed which allows for adjustments or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made and subsequently to the determination of s14 liability whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of crucial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer.….
However, the Tribunal does not concur that a parallel can be drawn in respect of Mr Hannaford’s changing diagnosis of Ross River fever based on a conclusive blood test, and conflicting medical opinions in respect of Ms Galicia’s pain. The Tribunal disagrees with the respondent’s contention and finds that the balance of medical evidence indicates that Ms Galicia is suffering from pain in her left shoulder and that the initial liability for the compensable injury was correctly accepted.
Counsel for Ms Galicia contended that her continuing incapacity for work and ongoing requirements for medical treatment results from the compensable injury is a question of fact. They contended that Ms Galicia suffered a compensable injury, that this injury continues to cause her incapacity for work and the ongoing need for medical treatment, and that her injury was contributed to by her employment to a significant degree.
In identifying Ms Galicia’s injury, counsel for Ms Galicia relied upon Canute v Comcare (2006) HCA 47 at [10] where Gummow, Kirby, Callinan, Heydon and Crennan JJ said the following in relation to the concept of an injury:
…[T]hree things must be 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’. Second the term ‘injury’ is not used in the Act in the sense of ‘workplace 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 s24(1) of the indefinite article in the expression ‘an injury’ reinforces that conclusion.
Further, counsel for Ms Galicia relied upon the decision in Kennedy Cleaning Service Pty Ltd v Petkoska (2000) 200 CLR 286 to identify that Ms Galicia’s duties at Medibank Private had resulted in a disturbance to THE normal physiological state of HER left shoulder. In that decision Gleeson, Gaudron, McHugh, Gummow, Kirby Hayne and Callinan JJ, said at [36]:
… The mere fact that a sudden physiological change is in some way connected with an underlying “disease” process does not, of itself, prevent the classification of such a change as an “injury” within the primary statutory provisions that apply to such a case.
Additionally, Counsel for Ms Galicia relied upon Darling Island Stevedoring & Lighterage Co Ltd v Hankinson (1967) 117 CLR 19 to indicate an aggravation and acceleration of an existing incapacity were compensated for under the Act. In that decision Barwick CJ said at 26-27:
…if incapacity in fact results from the acceleration, is this not enough to entitle the worker to an award in the same way or to the same extent as would be the where case with any other injury? I have no doubt that it would. – – – In my opinion, where the acceleration is the injury if incapacity results, the entitlement to compensation is identical with that which would flow from the likely incapacity resulting from any other kind of injury ….
Counsel for Ms Galicia relied upon the medical opinions of Dr Papagelis, as well as the independent report of Dr Curtis and Dr Meyers which all opine that Ms Galicia’s injury was work related, as she had worked for 27 years at Medibank Private performing frequent and repetitive tasks of data entry and lifting files. The reports also indicated that Ms Galicia was not undertaking any external activities which would have caused the injury and she was already relying upon her husband and children to help with heavy chores around the house. Further, the nature of her work contributed to her pain as she experienced increased pain when she performed computer work and this was demonstrated by her inability to tolerate a return to work program as noted in the Comcare Workplace assessment of 2012.
Counsel for the respondent also queried the validly of Ms Galicia’s injury to her left shoulder given she is right hand dominant and all her data entry work was performed by her right hand. As early as 2012 Ms Galicia’s then treating physiotherapist Mr Islak reported that Ms Galicia had presented to him with a strain to the left trapezius muscle, which he felt was odd given she is right hand dominate.
It did appear to the Tribunal that many of the medical specialists which Ms Galicia consulted were of the view that her work placed stress and strain on both her right and left side because of the excessive and receptive data entry duties of her role. Those appearing before the Tribunal were surprised that her role was performed solely by her dominant right hand.
Whilst the Tribunal accepts that Ms Galicia did suffer an injury to her left shoulder and that she has suffered ongoing pain it was troubled by the inability to explain why the injury was on her left and not her right shoulder.
Counsel for Ms Galicia contended that the further surgery she is seeking is reasonable and is supported by numerous medical experts. The respondent accepts that Ms Galicia’s current shoulder pain is the residual effect of her first two surgical procedures but does not believe that the original diagnosis, which led to this surgery, was the correct diagnosis.
The Tribunal also noted that the majority of the expert witnesses including Ms Galicia’s general practitioner, Dr Papagelis and her orthopaedic surgeon, Dr Bonomo did not support the need or benefit from another arthroscopic procedure to repair her SLAP tear. The majority of experts have concluded the condition would be best left alone.
The Tribunal further heard that Ms Galicia had benefited from ongoing physiotherapy and hydrotherapy and that she is seeking ongoing medical expenses for these treatments. There was no evidence put to the Tribunal that ongoing physiotherapy was the best practice. According to Ms Galicia, it had led at best to short term alleviation of symptoms. Rather, a better course of action was for patients to undertake home based exercise and stretching which allows them to take a great role in their self-management of their pain.
Counsel for Ms Galicia contended that she had an ongoing incapacity and inability to work. Ms Galicia had provided evidence that she had been unable to obtain work since being made redundant in 2014, as most employers would not hire someone who had previously had a work injury. Counsel for the respondent contended that Ms Galicia should not be hampered by her injury in finding work equivalent to that she was undertaking at the time of her injury.
Findings
The Tribunal found that Ms Galicia was suffering from a left shoulder condition which resulted in pain but was unable to clearly define from the medical evidence the specific diagnosis of the condition. The Tribunal accepted that the condition and its diagnosis had changed over time and was a result of her employment at Medibank Private. However, the progression of the condition was not now attributable to her previous employment but ongoing age related degeneration.
The Tribunal found that Ms Galicia is suffering ongoing pain but that it could not now be attributed to her compensable condition or as a result of complications from previously approved surgery.
The Tribunal found that Ms Galicia’s claim for medical expenses to undergo a further arthroscopic procedure was not reasonable medical treatment to obtain in respect of her injury and that there was no clear evidence that the surgery would resolve Ms Galicia’s ongoing pain.
The Tribunal found that Ms Galicia’s claim for ongoing medical expenses under section 16 of the SRC Act in respect to physiotherapy and hydrotherapy were not reasonable ongoing treatments and there was no clear evidence that these treatments were benefiting her long-term pain management.
The Tribunal further found that as Ms Galicia’s compensable condition was no longer attributing to her current pain there was no ongoing entitlement to compensation for incapacity payments under section 19 of the SRC act.
The Tribunal observed that Comcare’s clinical framework for assessing reasonable medical treatment had not been followed. The framework establishes key measures of treatment effectiveness which empower of the injured person to manage their condition as independently as possible and participate in activities at home, in the community and at work. Independence does not mean being symptom-free, but rather living a functional and productive life while self-managing symptoms if they arise. Failure to empower an injured person to become independent may result in dependency on treatment, which reinforces illness behaviour and can lead to persistent pain or long-term disability.
CONCLUSION
Based on the evidence before it the Tribunal affirms the decisions under review. In particular it affirms that the determination of 31 March 2016 that Ms Galicia was no longer entitled to compensation pursuant to s 16 and s 19 of the SRC Act as she no longer suffered from the effects of the accepted injury.
The decisions under review are affirmed.

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member

[sgd]........................................................................
Dated: 24 November 2017

Dates of hearing: 11 -13 August 2017

Counsel for the Applicant: Mr Scott Davison

Solicitors for the Applicant: Patrick Robinson & Co, Dimche Talevski

Counsel for the Respondent: Mr Roy Seit

Solicitors for the Respondent: Spake Helmore, Marie-Elaina Bakas

[2017] AATA 2380

24 November 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Remedies

Appeal

Dates of hearing:	11 -13 August 2017
Counsel for the Applicant:	Mr Scott Davison
Solicitors for the Applicant:	Patrick Robinson & Co, Dimche Talevski
Counsel for the Respondent:	Mr Roy Seit
Solicitors for the Respondent:	Spake Helmore, Marie-Elaina Bakas