George Maalouf and Australian Postal Corporation
[2015] AATA 461
•30 June 2015
[2015] AATA 461
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2801
2013/5338
2014/3193
2014/5785
2015/20592015/2358
Re
George Maalouf
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal John Handley, Senior Member
Date 30 June 2015 Place Melbourne 1. The decisions in relation to each application are as follows:
(a) 2013/2801 – the reviewable decision made on 10 May 2013 is set aside and in substitution it is decided:
(i) the normal weekly hours of the applicant has not been 39 hours and 55 minutes per week;
(ii) the normal weekly hours of the applicant is 36 hours and 45 minutes plus overtime hours;
(iii) the applicant has been incapacitated from working overtime from 13 March 2012 and is entitled to compensation for the consequent lost income; and
(iv) the applicant has had a capacity to work 25 hours per week only from 25 February 2014 and is entitled to compensation for lost salary of 11 hours and 45 minutes and overtime.
(b) 2013/5338 and 2015/2059 – both reviewable decisions are set aside and in substitution it is decided the respondent is liable pursuant to section 16 of the Act for the reasonable cost of physiotherapy treatment from 8 August 2013 in respect of the right shoulder and from January 2014 in respect of the left shoulder. The treatment shall be in the form of undertaking a program of home-based exercise as devised, monitored and supervised by a physiotherapist with whom the applicant shall personally consult once every three or four weeks as the physiotherapist shall determine.
(c) 2014/3193 – the decision under review is set aside and in substitution it is decided the applicant is entitled to compensation in respect of an aggravation of his right shoulder injury arising out of work undertaken by him on 29 January 2014.
(d) 2014/5785 – the decision under review in so far as it decided the applicant was entitled to an award of compensation in respect of a 13% permanent impairment pursuant to section 24 of the Act in relation to the right shoulder is affirmed. The remainder of the decision concerning the applicant’s entitlement to compensation pursuant to section 27 of the Act is set aside and in substitution it is decided the applicant is entitled to the following scores:
Pain
3
Suffering
2
Mobility
1
Social relationships
2
Recreation and leisure activities
3
Other loss
1
The application is remitted to the respondent for calculation of the quantum of entitlement to compensation pursuant to sections 24 and 27 in accordance with this decision.
(e) 2015/2358 – the decision under review is set aside and in substitution it is decided the applicant is entitled to an award of compensation pursuant to section 24 of the Act in respect of a 13% permanent impairment of his left shoulder. The applicant is also entitled to an award of compensation pursuant to section 27 in respect of the following scores:
Pain
3
Suffering
2
Mobility
1
Social relationships
2
Recreation and leisure activities
3
Other loss
1
The application is remitted to the respondent for calculation of the quantum of entitlement to compensation pursuant to section 24 and 27 of the Act in accordance with this decision.
2. The applicant is entitled to an award of his costs and disbursements pursuant to paragraph 6.10 of the Guide to the Workers Compensation Jurisdiction practice direction issued by the Tribunal in September 2013.
....[sgd]....................................................................
John Handley, Senior Member
WORKERS’ COMPENSATION – applicant is 65 years of age and employed by the respondent for 43 years – duties within the employment had been undertaken repetitively and rapidly – full thickness tear of the supraspinatus tendon of each shoulder – applicant continues to work reduced hours and performing modified duties – decisions concerning compensation entitlements for lost overtime, physiotherapy treatment, permanent impairment of left shoulder and non-economic loss for each shoulder set aside and substituted – decision concerning permanent impairment of right shoulder affirmed.
Legislation
Administrative Appeals Tribunal Act 1975, section 42A(1A)
Safety, Rehabilitation and Compensation Act 1988, sections 5A, 5B, 16, 19, 24 and 27
Cases
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Mellor v Australian Postal Corporation (2009) 108 ALD 159
Alamos and Comcare [2014] AATA 629
Bayani and Australian Postal Corporation [2015] AATA 342
Durham and Comcare [2014] AATA 753
Taylor and Comcare [2000] AATA 988
Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28
Canute v Comcare (2006) 226 CLR 535
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1, Comcare)
Guide to the Workers Compensation Jurisdiction (Version 2.0, September 2013)
REASONS FOR DECISION
John Handley, Senior Member
30 June 2015
Mr Maalouf, the applicant, has been employed by Australia Post, the respondent for 43 years. He is presently 65 years of age. He suffers a full thickness tear of the supraspinatus tendon of each shoulder and a partial tear of the left biceps insertion. He continues to work, although his hours have been reduced and his has been work modified.
The respondent has made six reviewable decisions concerning a number of provisions within the Safety, Rehabilitation and Compensation Act 1988 (the Act). Each decision is challenged by the applicant. Five volumes of T-documents have been lodged. They will be identified, where applicable, in these reasons as Volumes 1 – 5. The decisions and the corresponding Tribunal file numbers are as follows:
(a)2013/2801 – denial of liability to pay compensation for loss of income by incapacity to work overtime as a result of a right shoulder and left wrist injury pursuant to section 19 of the Act between:
(i)13 March and 31 July 2012; and
(ii)from 1 August 2012.
The decision found the applicant able to work normal weekly hours in suitable employment (Volume 1, page 61 – 63).
(b)2013/5338 – denial of present liability (at 8 August 2013) to pay compensation for physiotherapy treatment for the right shoulder and left wrist pursuant to section 16 of the Act (Volume 2, pages 23 – 24).
(c)2014/3193 – denial of liability to pay compensation for aggravation of the right shoulder injury (Volume 3, pages 62 – 63).
(d)2014/5785 – a finding that the applicant is entitled to a lump sum compensation pursuant to sections 24 and 27 of the Act in respect of the right shoulder injury (Volume 4, pages 26 – 31). During the hearing, the parties indicated that agreement had been reached that the applicant should be assessed, pursuant to section 24, as having a permanent impairment of 13% in respect of his right shoulder. Agreement was not reached concerning the entitlement to a payment for non-economic loss pursuant to section 27.
(e)2015/2059 – denial of liability to pay compensation for physiotherapy treatment for the left shoulder (Volume 5, pages 54 – 56).
(f)2015/2358 – denial of liability to pay compensation pursuant to sections 24 and 27 of the Act in respect of the left shoulder injury (Volume 5, pages 75 – 77).
The applicant withdrew his review of decision in applications 2013/2801 and 2013/5338, in so far as they concerned his left wrist injury, pursuant to section 42A(1A) of the Administrative Appeals Tribunal Act 1975.
The issues that emerge from consideration of the above decisions will be recorded and considered by a number of subject headings being Employment and Injuries, Aggravation of Right Shoulder, Overtime and Normal Weekly Hours, Physiotherapy and Section 24 and 27 Compensation.
Employment and Injuries
In addition to having been employed by the respondent for 43 years, the applicant has been a senior mail officer for the last 15 years, which involves a responsibility for 20 employees. He is also a shop steward.
The applicant suffered injury to his left shoulder in 2002. The T-documents indicate that an application was lodged in this Tribunal in relation to that injury but the file has been destroyed. A reviewable decision made on 11 May 2015 (Volume 5, pages 75 – 77) records that a claim for left shoulder/arm strain was made on 20 November 2002 arising out of the applicant twisting his upper left arm when attempting to clear mail and place trays on a conveyor belt. Liability was accepted by the respondent pursuant to section 14 of the Act. An ultrasound report of 25 March 2003, found at page 15 of the clinical file of Dr Harewood (the treating general practitioner), recorded the applicant had a full thickness tear of the left supraspinatus tendon. Degenerative changes were also noted, on an x-ray of the same date, in the rotator cuff and the acromio–clavicular joint.
It appears the applicant was incapacitated for a period of time and eventually returned to work.
On 28 September 2009, the applicant completed an incident report recording injury to his right shoulder and left wrist (Volume 1, pages 9 and 10). On that occasion, he was working on the number 6 bar code sorter (BCS6) which sorted standard C5 letters. His work involved repetitive lifting and tipping of trays of mail, estimated to weigh about 12 kilograms. The work was undertaken rapidly and it was estimated that about 50 trays of mail would be fed into the machine hourly. His work also required him to take trays of mail, after processing, out of the machine from chest height and above shoulder height. The applicant was then employed working on that machine for about six hours each day.
The applicant consulted Dr Harewood two days later (Volume 1, page 11) who issued a certificate restricting lifting to a maximum of five kilograms and not above shoulder height. The symptoms of pain then experienced by the applicant did not improve and an explanation for it is found in the report of an ultrasound taken on 19 October 2009 recording the presence of a severe – large full thickness tear of the supraspinatus tendon (Volume 1, page 13). The applicant had a few days off work, analgesia was prescribed and he was referred to a physiotherapist. When he returned to work, with a limitation in the function of his right shoulder, he was placed on the CFC (Culler – Facer – Canceller) machine where he observed mail passing along a conveyor belt, removed oversized letters and mail which had protruding and sharp objects and then placed them in a tub on a nearby trolley. He has not returned to the BCS.
At the date of injury the applicant was working a regular shift from 12:00 pm to 8:40 pm, being 36 hours and 45 minutes per week.
In October 2009 the respondent accepted liability for the injury suffered on September 2009 (Volume 1, page 18).
In a report of 22 December 2009 completed by Dr Harewood (Volume 1, page19), the applicant was diagnosed as suffering a complete rupture of the supraspinatus tendon (ruptured tendon) in his right shoulder. It is not known if that is an equivalent description of the injury recorded in the ultrasound report of 19 October 2009 or whether another workplace incident had occurred causing further damage to the tendon. None of the T-documents have an incident report describing another episode at work or elsewhere. In his statement (paragraph 5) received as Exhibit A1, the applicant recorded he experienced a ruptured tendon in December 2009 but did not describe the circumstances of how it occurred.
Dr Harewood referred the applicant to Mr Steele, an orthopaedic surgeon who treated him with two steroid injections in December 2009 and May 2010, which provided some relief, each for about one month. (Reports of Mr Steele are found in the clinical file of Dr Harewood and are dated 19 December 2009 and 6 May 2010). The applicant said he refused having any further steroid injections because he understood he would be at risk of diabetes.
In January 2014, the applicant remained employed (working on a part of the CFC process where he placed rejected mail into trays which he then lifted and placed them on a kingfisher (a trolley)). The applicant described the work as repetitive and having to be undertaken quickly. It also involved rapid use of both arms. He had undertaken this work, on a full-time basis since December 2009.
On 28 February 2014, he completed an incident report (Volume 3, pages 10 – 14) recording pain in his right and left shoulder having occurred on 29 January 2014 when working on the CFC. He reported severe pain the back of the right shoulder and with overuse of the left arm in culling and everything that I do flared up my old injured left shoulder. A description of the injuries suffered was recorded by the applicant as aggravation of accepted injury, flare up of old injury.
In an undated letter to the respondent’s compensation claims delegate (Volume 3, page 56) the applicant recorded that the delay in completing the incident report occurred because in the interim between 29 January 2014 and 28 February 2014 he had been referred by his doctor to a specialist, there was delay seeking a request to reinstate liability for his left and right shoulders and he was uncertain whether a new incident report should be completed.
On 25 February 2014 the applicant was reviewed by Mr Csongvay, an orthopaedic surgeon to whom the applicant had been referred by Dr Harewood in 2010. He reported (Volume 4, page 20) George continues to have progressive symptoms with both of his shoulders related to chronic bilateral rotator cuff tendinopathy. He has ongoing shoulder discomfort especially following activity and he is finding it harder to manage with his normal hours at work.
Since February 2014, the applicant has not returned to work on the CFC. He has continued to work reduced hours sorting mail which involves the use of both arms. Some letters are placed into a frame above shoulder height which causes increased shoulder pain. There are occasions when the applicant experiences a cracking type sensation in his shoulders. There are also occasions when his shoulders lock.
The respondent has treated the left shoulder injury as a recurrence of the shoulder injury from 2002 (Volume 5, page 76). In making that decision, it relied on a report from Mr Kelman, an orthopaedic surgeon who reported on 19 March 2014 (Volume 3, pages 46 – 52) that the left shoulder pain which emerged in January 2014 was the aggravation of a long-standing degenerative process and was consistent with the injury in 2002. In addition to a full thickness tear of the left supraspinatus tendon, Mr Kelman diagnosed the applicant as having a partial tear of the biceps insertion of his left upper limb.
The respondent’s liability for the applicant’s right shoulder injury was determined in favour of the applicant on 29 October 2009 (Volume 1, page 18). That liability has remained open. One of the reviewable decisions under review in these proceedings, made on 16 June 2014, (which will be separately considered) confirms that the applicant has an accepted claim for compensation for full thickness supraspinatus tear of the right shoulder (Volume 3, page 62).
Aggravation of Right Shoulder
On 28 February 2014, the applicant completed an incident report alleging an aggravation of an accepted injury (right shoulder) and a flare up of an old injury (the left shoulder) during work on the CFC machine, one month earlier on 29 January. The work involving the right shoulder was described as repetitive movement of my right arm placing rejected letters in trays and trays on kingfisher. A more detailed explanation of the alleged aggravation was given by the applicant in an undated letter to the respondent’s claims officer where he recorded he had been placing reject mail in trays and placing them on the king fisher with repetitive movement and fast paced moving arms back & forth and gripping fast incoming letters to clear the machine caused severe pain at the back of my right shoulder (Volume 3, pages 12, 14 and 56).
A claim for compensation was made on 1 May 2014. The description of the right shoulder injury was recorded as deteriorate (sic) of right shoulder accepted claim (Volume 3, page 57).
The primary decision maker decided that the applicant did not suffer a new injury but a deterioration of his right shoulder. The reconsideration delegate decided that merely experiencing increased symptoms of a pre-existing illness whilst at work and performing work responsibilities are insufficient to establish that an injury has been sustained for the purposes of section 5B of the Act (Volume 3, pages 60 and 63).
Although the applicant recorded in his letter (Volume 3, page 56) that he was scheduled to see his treating doctor on 8 February 2014, it appears he also consulted Dr Harewood on 10 February 2014 because on that date a certificate was issued (Volume 3, page 65). The history given to Dr Harewood in relation to the work being undertaken of 29 January 2014 is not known because the clinical file of Dr Harewood, produced under summons issued by the respondent, is current at 15 August 2013.
A certificate was issued on 9 January 2014 (Volume 3, page 64) recording right shoulder rotator cuff tear and left thumb CMC arthritis, restrictions on repetitive lifting to no more than eight kilograms, no lifting above shoulder height and certification of fitness to work full hours but without overtime. The certificate issued on 10 February 2014 also records left shoulder pain but differs to the extent of restricting repetitive lifting to no more than six kilograms. It is not known whether the variation in restrictions is as a consequence of the additional left shoulder pain.
The applicant consulted Mr Csongvay on 25 February 2014. His clinical file did not contain a record of the history then taken. A report of the same date (Volume 4, page 20) makes no specific reference to the work undertaken on 29 January 2014. He does however record that the applicant continues to have progressive symptoms with both of her (sic) shoulders related to his chronic bilateral rotator cuff tendinopathy. He has ongoing shoulder discomfort especially following activity and he is finding it harder to manage with his normal hours of work.
Counsel for the respondent contended that there was no evidence pointing to any aggravation of the applicant’s pre-existing right shoulder injury by the work of 29 January 2014. It was noted that the certificate of 10 February 2014, whilst varying the restriction on lifting from eight to six kilograms, continued to certify the applicant as capable of working his full hours but without overtime. It was submitted that a finding should be made that the applicant suffered no more than symptoms of pain whilst working on 29 January 2014 and he did not suffer any aggravation by a frank episode or at all.
Counsel for the applicant contended, on the basis of Commonwealth of Australia v Beattie (1981) 35 ALR 369 that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place. The majority of the Full Federal Court in Beattie adopted the view of Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 that there can be an aggravation of a previously existing injury by activity which increases or precipitate pain, described as rubbing salt into a wound. (Also refer Mellor v Australian Postal Corporation (2009) 108 ALD 159).
In the absence of clinical data or medical opinion, resolution of this issue can only be determined by the contemporaneous documents completed by the applicant and by regard also to the description of the work activity and the pain he then experienced.
I am satisfied and find as a fact that the description by the applicant of a deterioration of his right shoulder points to a worsening of it. His description of deterioration was first recorded in his claim for compensation (Volume 3, page 57) and the letter addressed to the respondent’s delegate (Volume 3, page 56). Significantly, I think the particular words used by the applicant to describe the work that he was undertaking on 29 January 2014 – repetitive, fast pace, gripping and moving arms back and forth, together with the description of the symptoms he then experienced – severe pain, stinging pain and increasing pain (Volume 3, pages 12 and 56), point to an aggravation of the pre-existing right shoulder injury within the meaning given in Beattie and Semlitch.
I am also satisfied that there was a significant degree of contribution to the right shoulder disease by work activities within the meaning of section 5B of the Act, especially by regard to the extent and severity of the pre-existing right shoulder disease and the applicant’s predisposition to aggravation by the work that he was undertaking on 29 January 2014 (section 5B(2)(c)).
The decision of the respondent therefore in application 2015/3193 will be set aside and a decision in substitution will be made that the applicant is entitled to compensation in respect of an aggravation of the applicant’s right shoulder injury arising out of the work undertaken by him on 29 January 2014.
Overtime and Normal Weekly Hours
The respondent’s reconsideration delegate decided on 10 May 2013 (Volume 1, page 61 – 63) that the applicant was capable of working normal weekly hours (calculated by the respondent to be 39 hours and 55 minutes) in suitable employment:
(a)between 13 March and 31 July 2012; and
(b)from 1 August 2012.
The decision denied compensation payments for the income lost by the applicant due to incapacity to work overtime. Additionally, although not known or contemplated at 10 May 2013, the applicant suffered further income loss from February 2014 when he was certified to work five hours per day (25 hours per week only) (refer later).
Prior to September 2009, the applicant normally worked 36 hours and 45 minutes per week (Volume 1, page 15), being 7 hours and 21 minutes per day. In addition, overtime was available and always worked, being an average of eight hours per fortnight made up of four blocks, each of two hours. The applicant continued to work overtime after September 2009 until 21 March 2011 when Dr Tan, a colleague of Dr Harewood certified the applicant as fit to work full hours but not to work overtime (Volume 1, page 135).The basic weekly hours – 36 hours and 45 minutes – has been variously described as base hours or full hours or normal hours. They are descriptions of the base hours worked before overtime hours were worked.
In October 2011, a claims delegate of the respondent wrote an email to Ms Jakovljevic, a rehabilitation officer of the respondent advising that the applicant had been restricted by his doctors from working overtime since March 2011, compensation was being paid as a top up and asking whether there was any way we can address this? (Volume 1, page 41). Ms Jakovljevic replied in an email indicating that she had spoken with Dr Tan who advised her that the applicant barely manages working his current hours which is why the ‘no overtime restriction’ is recommended. She concluded that she would write to Dr Tan and will discuss what ‘we can offer’ in terms of duties, to help George (Volume 1, page 41).
The clinical file of Dr Harewood contains a questionnaire dated 17 November 2011(not found within the T-documents) from Ms Jakovljevic to Dr Tan asking him for clarification of the applicant’s duties and ability to work overtime. Dr Tan replied that he had no objection to the applicant trialling overtime hours. He also recorded ...if he experiences pain, he should refrain from performing the trial activity.
Volume 1 of the T-documents contains copies of a number of certificates issued monthly by Dr Tan (who is in practice with Dr Harewood) certifying the applicant as fit for full hours but with restrictions against working overtime up to and including 19 December 2011 (page 75). On 19 December 2011 a certificate was written for a three-month period expiring on 12 March 2012 removing the restriction against working overtime (page 77).
The applicant said he did attempt to work overtime on one shift only, which was during the busy Christmas period but experienced pain and ceased working overtime in fear that his right shoulder injury would become worse. Thereafter, he reverted to working normal hours only of 7 hours and 21 minutes per day.
On 13 March 2012, the day after the certificate issued on 19 December 2011 had expired, Dr Harewood certified the applicant as fit to work full hours but with restrictions against working any overtime (Volume 1, page 79).
A compensation claims officer of the respondent determined on 31 July 2012 that the applicant had failed to establish he was incapacitated from working overtime between 13 March 2012 and 31 July 2012.
That decision was challenged by the applicant’s solicitors who sought reconsideration on 6 August 2012. The respondent then decided to obtain reports from Dr Harewood and Mr Csongvay who reported on 18 March 2013 and 12 February 2013, respectively (Volume 1, pages 53-55 and 52). They both advised the applicant was unable to work beyond normal hours.
The respondent’s reconsideration delegate wrote to Mr Csongvay on 9 April 2013 (Volume 1, pages 56 – 58) notifying him that the applicant’s normal weekly hours were calculated at 39 hours and 55 minutes and in order to attain his normal weekly hours [he] would be required to work an additional 38 minutes per day. On that basis, Mr Csongvay was asked to consider whether the applicant had a capacity to perform a reasonable amount of overtime if and when overtime is called within his work group. He was specifically asked whether he considered the applicant could reasonably work an additional 38 minutes per day if required to perform overtime within his work group. Mr Csongvay replied on 8 May 2013 in relation to what he understood to be the proposed extended working hours and reported that the applicant was able to work the required overtime hours (Volume 1, page 60).
The reconsideration delegate decided on 10 May 2013 that on the basis of the report of Mr Csongvay of 8 May 2013, the applicant could reasonably be expected to work a ‘reasonable amount’ of overtime if and when overtime is called and therefore I consider that he could reasonably be expected to work his normal weekly hours in suitable employment. Accordingly, it was decided to deny liability to pay compensation salary (top up) between 13 March 2012 and 31 July 2012 and to deny present liability to pay compensation from 1 August 2012.
The applicant said his normal weekly hours were 36 hours and 45 minutes. In his statement (Exhibit A1, paragraph 14) he recorded his full-time hours since 1980 have been 36 hours and 45 minutes per week and any work beyond that period of time has been calculated as overtime. From 25 February 2014, the applicant has worked five hours per day only. That certification was made by Mr Csongvay (Volume 3, page 66). The difference in salary between the actual hours worked (25 hours per week) and the applicant’s normal weekly hours (36 hours and 45 minutes per week) has been paid from accumulated sick leave.
Mr Csongvay gave evidence in this review. He said he was aware the applicant had attempted to work overtime in December 2011 but had suffered increased pain. He interpreted the letter to him from the respondent as indicating overtime was available to the applicant at 38 minutes each day. He said perhaps he misunderstood the questions asked of him by the reconsideration delegate and on reflection he thought the period of 38 minutes was within his normal hours.
Mr Csongvay said he last saw the applicant in February 2014. He said the applicant at that time was not tolerating 7 hours and 21 minutes each day and he decided to certify him as fit only to work five hours per day. He thought that was as much as the applicant could tolerate and did not believe he had any capacity to work beyond five hours daily.
Counsel for the respondent submitted that Mr Csongvay was asked by the reconsideration delegate whether the applicant could work and additional 38 minutes per day, as overtime, if required. His reply of 8 May 2013 indicated that the applicant was capable of working the required overtime hours.
Counsel for the applicant pointed to the applicant’s attempt to work overtime at Christmas of 2011 but increased pain had caused him to cease after one day only. Because of the progressive deterioration in the function of both shoulders, the applicant was certified by Mr Csongvay as having a capacity to work five hours per day only from 25 February 2014 (Volume 3, page 66).
The premise of the enquiry made of Mr Csongvay, in the letter from the respondent’s delegate of 9 April 2013 was misleading. He was notified:
(a)that the applicant’s normal weekly hours were 39 hours and 55 minutes per week (page 56); and
(b)the applicant is currently working 7 hours and 21 minutes per day performing modified duties and to attain his normal weekly hours would be required to work an additional 38 minutes per day (at page 58).
Those statements are both factually incorrect. The applicant’s normal work hours were 7 hours and 21 minutes per day plus overtime. When the applicant worked overtime, it was in four, two-hour blocks over a fortnight. His normal weekly hours were the average of the hours worked in a two-week period prior to the injury (sections 8 and 9 of the Act). Overtime hours are to be included in that calculation because they were hours normally worked (Comcare v Heffernan (2011) 196 FCR 494 at [20]). The questions asked of Mr Csongvay were irrelevant and a fiction because he was asked to give an opinion on the capacity of the applicant to work normal weekly hours, said by the respondent to be 39 hours and 55 minutes. Those hours had never been undertaken. They were never his normal hours. Furthermore, he has never been required to work an additional 38 minutes per day to attain his normal weekly hours.
The only enquiry the respondent needed to make was whether the applicant had a capacity to work overtime beyond his base rate of 7 hours and 21 minutes per day, or 36 hours and 45 minutes per week. Any work beyond that was overtime.
At the date of the reviewable decision, the respondent had Mr Csongvay’s opinion of 12 February 2013 recording that the applicant was not fit to work beyond normal hours and the applicant would not cope with overtime. The respondent also held Dr Harewood’s opinion of 18 March 2013 who agreed with the conclusions of Mr Csongvay and reported that the applicant was unable to perform overtime hours.
Dr Harewood and Mr Csongvay were treating the applicant. Their opinions were sound and are to be preferred. I also agree with Mr Csongvay’s opinion (which he communicated during the hearing) that the applicant is a genuine and honest person.
In February 2014, the applicant had deteriorated to the extent that Mr Csongvay certified him as being fit only to work five hours per day (25 hours per week). The totality of the medical evidence, including but not confined to the applicant’s inability to obtain adequate pain relief and strength and mobility from physiotherapy treatment, supports the diminution of the applicant’s capacity to undertake working his normal hours.
Mr Csongvay said during this review that he misunderstood the enquiry made of him by the respondent. He and Dr Harewood were firm in their reports and in evidence that applicant has not had any capacity to work beyond his base hours. Mr Csongvay was also firm in his opinion that the applicant has not been able to work more than five hours per day from 25 February 2014 (Volume 3, page 66).
The reviewable decision made by the respondent on 10 May 2013 will be set aside. I am satisfied that prior to 13 March 2012 the applicant worked 36 hours and 45 minutes per week being the base hours. Overtime was available however he was unable to work those hours. His normal weekly hours (NWH) and normal weekly earnings (NWE) were calculated by an aggregate of his base hours and the hours available in overtime, that is, by regard to the meaning given to those expressions in Heffernan. From 13 March 2012, the applicant continues to be incapacitated to work overtime and has a continuing entitlement to compensation for the consequential loss of income. The NWH of the applicant has never been 39 hours and 55 minutes per week. From 25 February 2014 the applicant has had a capacity to work five hours per day (25 hours per week) only. From 25 February 2014 he is entitled to compensation being calculated against the loss of 11 hours and 45 minutes in base rate hours plus lost overtime.
Physiotherapy
The respondent has made two reviewable decisions in respect of the claims made by the applicant for physiotherapy treatment, of each shoulder.
A reviewable decision was made on 9 October 2013, in application 2013/5338 affirming a determination that there was no present liability at 8 August 2013, pursuant to section 16 of the Act for continuing physiotherapy treatment of the applicant’s right shoulder (Volume 2, pages 23 – 24).
The reconsideration delegate acknowledged opinions expressed in reports in 2010, 2011 and 2013 from Dr Tan, Mr Csongvay and Mr Dax, a treating physiotherapist, that the applicant would benefit from physiotherapy treatment because it would improve his range of movement, mobility and strength. In the absence of it, the applicant was likely to suffer increased pain and was at risk of being unable to work. The reconsideration delegate preferred opinions expressed in reports received from Mr Haig in December 2010 and July 2013 that the applicant could achieve similar outcomes to treatment by physiotherapy by home-based exercises, analgesia and anti-inflammatory medication.
A reviewable decision was made on 27 April 2015 in application 2015/2059 affirming a determination made on 20 February 2015 denying liability to pay compensation pursuant to section 16 of the Act for physiotherapy treatment of the applicant’s left shoulder (Volume 5, pages 54 – 56).
The reconsideration delegate acknowledged a report from Dr Harewood of 30 March 2015 that the applicant needed 10 sessions of physiotherapy treatment per annum for both shoulders (Volume 5, page 52) and a report from Ms Lee (Volume 5, page 53), the applicant’s treating physiotherapist who recommended funding for physiotherapy treatment twice weekly for three months commencing on 7 April 2015. The delegate recorded that she preferred an opinion of Mr Kelman who expressed in his report of 19 March 2014 (Volume 3, pages 46 – 52) that the applicant would benefit (at page 51) from symptomatic treatment by an ultrasound guided steroid injection.
The applicant has had physiotherapy treatment for a number of years, initially on one occasion per week and later on one occasion per fortnight. He said he benefitted from it because it relieved pain for about two weeks and improved the range of movement in his arms. He was also exercising at home by pushing himself against a wall and turning each wrist from side to side with his arms bent at each elbow. However he found those exercises to be painful and he stopped. He was also advised by his physiotherapist to cease those manoeuvres if pain was experienced. The applicant acknowledged in cross-examination that some of the manipulation undertaken by the physiotherapist was painful but he endured it because the therapy was conducted by a properly qualified person.
When the respondent ceased liability for physiotherapy treatment he experienced severe pain and immobility in his right shoulder and pain also extended to his neck. Later, the applicant was able to undertake some physiotherapy treatment funded through Medicare. He has also attended in a local shopping centre for massage. The applicant does not consume analgesia because it causes stomach discomfort.
Mr Csongvay gave evidence and said the contents of a report he wrote on 21 June 2011 (Volume 1, page 40) namely, that physiotherapy treatment significantly assisted the applicant and was essential in maintaining shoulder strength and stability, remained applicable. He said that long-term supervised physiotherapy treatment was better than home-based exercises. He thought the left shoulder injury, which he regarded as a significant tendon tear reduced the applicant’s ability to support his right arm, and it was therefore essential to retain strength in his left arm and shoulder by continuing physiotherapy treatment. He said the absence of physiotherapy treatment is likely to result in progressive and rapid deterioration in each shoulder thereby reducing the applicant’s capacity to function at home and at work.
At the present time, he thought it would be appropriate for the applicant to have supportive physiotherapy treatment once every three or four weeks. He said home-based exercises alone would not be sufficient for the applicant who has significant bilateral shoulder injuries. He regarded the applicant as motivated to pursue treatment and remain active.
Mr Csongvay acknowledged there was a risk with long-term physiotherapy treatment of a patient becoming dependent. However, the applicant suffered chronic bilateral injuries and would benefit from the support given by a physiotherapist who would also instruct and supervise him in and provide a list of appropriate home-based exercises.
Dr Harewood said the opinion expressed in his report of 30 March 2015 (Volume 5, page 52) of 10 physiotherapy treatment sessions per year was an estimate. He said he would defer to Mr Csongvay’s opinion of the applicant undertaking physiotherapy treatment once every three or four weeks. He said the applicant would be inhibited by home-based exercises only because he is unable to support each arm. He said between the physiotherapy treatment sessions, the applicant should engage in home-based exercises by appropriate instruction and supervision of his physiotherapist, who would be able to monitor and support continuing strengthening and mobility of the applicant’s arms.
Mr Mangos, a general surgeon said it was appropriate that the applicant continue to have physiotherapy treatment to slow the rate of deterioration and increase muscle strength. He thought it was also appropriate for the applicant to have his physiotherapist supervise and monitor home-based exercises.
Mr Kelman thought it reasonable that physiotherapy treatment be undertaken during an acute phase following injury or surgery but for no longer than three months. He said physiotherapy treatment would assist mobility and muscle strength during a chronic phase only. In his opinion, physiotherapy treatment would not be reasonable because it would not provide a cure and symptomatic treatment by analgesia, exercising and mobilisation would be more appropriate. He said cortisone injections would be appropriate and reasonable. He acknowledged the applicant’s reluctance to have cortisone injections because of fear of diabetes however he said the injections he contemplated were of a depo type where the cortisone remains within the site injected, as opposed to cortisone taken orally which can affect persons with diabetes.
In cross-examination, Mr Kelman learnt of the opinions expressed by Mr Csongvay of the limitations suffered by the applicant of home exercising because of his bilateral injuries and the benefit the applicant would receive from a program of home exercising designed by a physiotherapist who would then supervise and monitor once every three or four weeks. In those circumstances, Mr Kelman said that physiotherapy treatment to that extent would be reasonable.
Mr Haig, who had only ever consulted with the applicant in relation to his right shoulder, reported that the applicant should be encouraged to exercise at home and physiotherapy treatment was not appropriate. He acknowledged, when he learnt the applicant had bilateral shoulder injuries that difficulty would be experienced in home exercising and suggested the applicant should have hydrotherapy two or three times per week. When he learnt of the opinions expressed by Mr Csongvay, he said he would support consultation with a physiotherapist once every three or four weeks with the applicant having a structured home-exercise program which was supervised and monitored by the physiotherapist.
Documents were produced during the hearing which indicated that the respondent had paid $8,304 in respect of 179 physiotherapy treatment sessions undertaken by the applicant between 2009 and 2013 (Volume 5, pages 88 – 92).
The issue of frequency of and long-term treatment by physiotherapy, together with the cost of it and the risk of dependency by the patient upon the physiotherapist has been the subject of three recent decisions in the Tribunal, being Alamos and Comcare [2014] AATA 629, Durham and Comcare [2014] AATA 753 and Bayani and Australian Postal Corporation [2015] AATA 342.
The evidence and the findings in those decisions need not be summarised or repeated because the evidence in this review, from five medical practitioners was virtually unanimous that the applicant would benefit from a properly structured program combining home-based exercises which are monitored and supervised by a physiotherapist with whom the applicant would consult once every three or four weeks.
I agree with the evidence heard that physiotherapy treatment will not cure the applicant’s bilateral shoulder injuries, but physiotherapy treatment was never intended to repair or cause a reunion of each torn tendon. However, the physiotherapy treatment to date and the proposed physiotherapy treatment regime to which all the doctors gave consideration in this review, has given and will give the applicant pain relief, mobility and maintained muscle strength. Those outcomes have largely permitted him to continue at work and given him some quality of life which he probably may not have enjoyed were it not for the benefit of the physiotherapy treatment.
I am satisfied that the respondent is liable for the cost of that treatment and it would be reasonable for the applicant to undertake it. The evidence in this review satisfies me that the physiotherapy treatment and home-based exercising as proposed by Mr Csongvay, to which the other medical witnesses agreed, would be medical and/or therapeutic treatment as defined by section 16 of the Act.
It follows that both decisions concerning physiotherapy treatment made by the respondent are set aside and in substitution I will decide that the respondent has been liable for the cost of physiotherapy treatment pursuant to section 16 of the Act from 8 August 2013 in respect of his right shoulder. Although the respondent denied liability for the cost of physiotherapy treatment for the left shoulder on 20 February 2015, it appears the applicant has had physiotherapy treatment for both shoulders since January 2014 when he suffered a flare up of his left shoulder injury. Accordingly, I am satisfied the respondent has been liable in respect of the applicant’s left shoulder from January 2014. The respondent’s liability is confined to the cost of a physiotherapist devising a program of home-based exercises and monitoring and consulting with the applicant once every three or four weeks.
Section 24 and 27 Compensation
Two applications have been made for compensation pursuant to section 24 and 27 of the Act.
The amount of compensation payable is assessed by regard to the degree of permanent impairment (section 24) and the degree of non-economic loss, also understood to be the life-style effects of an impairment (section 27). The determinations of degree of impairment and non-economic loss are made pursuant to the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) published by Comcare (the Comcare Guide).
The degree of permanent impairment is expressed as a percentage of the whole person impairment (WPI).
If an injury results in a permanent impairment, an applicant is entitled to an additional amount of compensation for non-economic loss, calculated pursuant to the criteria found at Part 1, Division 2 of the Comcare Guide. The amount of compensation for non-economic loss is calculated by deriving a score upon considering the criteria under the tables in the Comcare Guide entitled Pain, Suffering, Loss of Amenities (having three parts being Mobility, Social Relationships and Recreation and Leisure Activities) and Other Loss. The derived scores are used to calculate a reasonable percentage which is applied to a formula found at section 27(2) of the Act to calculate the quantum of entitlement for non-economic loss.
In this application, both parties acknowledge, and I agree, that Tables 9.11.1a, b and c record the basis to determine the WPI of each of the applicant’s shoulders.
The Tables at 9.11 contain the criteria of the degree of flexion/extension, internal/external rotation and abduction/adduction of a shoulder, against which a percentage rating is to be applied and when aggregated, the WPI of that shoulder is determined.
Mr Kelman, on behalf of the respondent determined a WPI of the applicant’s right shoulder of 13% in his report of 19 March 2014 (Volume 3, page 43). The respondent’s reconsideration delegate determined the applicant was entitled to a WPI of 13%. Mr Mangos, who examined the applicant on behalf of his solicitors on 23 October 2013 (Volume 4, pages 12 – 16) calculated the WPI at 12% (that assessment was conducted in accordance with the American Medical Association’s Guide to the Evaluation of Permanent Impairment (Edition 4)).
Both parties agreed that there should be a finding of 13% WPI of the applicant’s right shoulder. I agree that would be the correct and preferable decision.
Mr Kelman provided two reports in relation to the applicant’s left shoulder. His first report of 19 March 2014 (Volume 3, pages 46 – 52) did not record his WPI findings under the Tables. His second report of 20 May 2014 (Volume 5, pages 68 – 70) was completed on the basis of his examination and findings of the applicant made on 4 March 2014. There was an error in his WPI finding in relation to external rotation, which was agreed between the parties attracted a finding of 1%, rather than 2% as he recorded, resulting in a 13% WPI. He concluded that 9% was work-related and 4% was due to age-related degeneration. Counsel for the respondent conceded there was no legal basis to apportion the employment and non-employment contribution to the WPI and it was therefore agreed between the representatives that the opinion of Mr Kelman should be understood as his finding of a 13% WPI for the left shoulder.
In a report of 2 March 2015 (Volume 5, pages 71 – 73), following a consultation on that day, Mr Mangos again assessed the applicant. He concluded that the applicant had an 11% WPI of his left shoulder. However, a significant error was detected in his report because the findings made on 2 March 2015 found on page 2 of his report were not recorded in a schedule found at page 3 of it. Unfortunately the findings under the 9.11Tables then appearing were those found by him at his consultation two years earlier. When the appropriate WPI ratings were assessed against the criteria in the 9.11 Tables, the aggregate WPI was 9% for the left shoulder.
Counsel for the applicant submitted that the finding of Mr Kelman should be preferred. Counsel for the respondent submitted the adjusted finding of Mr Mangos should be preferred.
Mr Kelman explained in some detail his practice experience and use of a goniometer and inclinometer in measuring, with some precision, the extent or loss of flexion/extension, internal/external rotation and abduction/adduction of the applicant’s shoulders. Additionally, the findings made by Mr Mangos of the left shoulder in 2013 were greater than his findings in 2015, yet in the interim, in January 2014, the applicant suffered an aggravation to the left shoulder. It is inconceivable the function of the applicant’s left shoulder had improved, indeed the weight of evidence from both the applicant and all the witnesses suggested the contrary.
In the circumstances, the findings made by Mr Kelman are to be preferred and I am satisfied the applicant has a WPI of 13% of his left shoulder.
In making these decisions concerning the WPI, I found the report and the evidence of Mr Kelman to be sound and thorough, and his methodology in his determination of the WPI, against the criteria in Tables 9.11.1a – 9.11.1c, as he explained during the hearing to be preferred to Mr Mangos. Mr Kelman conceded an error in his apportionment of the percentage of 2% WPI under Table 9.11.1b for 40° of external rotation, which was trivial compared to the errors made by Mr Mangos in his second report where he reproduced his findings of the range of movement recorded in the first report in 2013 without regard to the actual range of movement of the left shoulder found by him during his consultation on 2 March 2015. The distinction in the findings made by Mr Mangos of the applicant’s left shoulder could not be explained on any rational basis. It is for the above reasons, I have confidence in the conclusions reached by Mr Kelman, which are to be preferred.
Turning now to the assessment of entitlement to compensation for non-economic loss pursuant to section 27 of Act, it is apparent that the applicant, who has two injuries, each giving him an entitlement to permanent impairment compensation under section 24, exposes the respondent to liability for an award of compensation under section 27, for each injury.
The language of section 27 is clear. Once a finding of entitlement has been made under section 24, the respondent is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment. (Emphasis added).
The High Court in Fellowes v Military Rehabilitation and Compensation Commission (2009) 240 CLR 28, heard an appeal concerning an applicant who suffered injuries, on separate occasions to each knee which were assessed as attracting an entitlement to compensation pursuant to section 24. After the respondent decided to pay compensation for one of the injuries, it later decided that it was not obliged to pay compensation under section 24 for the other injury because the applicant had been compensated for whole person impairment. It reasoned that the second injury did not increase the applicant’s impairment. The High Court decided that compensation is payable for injury, not the impairment (see also Canute v Comcare (2006) 226 CLR 535).
It therefore follows that the applicant is entitled to an assessment of compensation for non-economic loss pursuant to section 27 for each shoulder. The High Court did not specifically deal with the resultant entitlement that may exist under section 27 for each injury but the Tribunal has previously determined this issue in Taylor and Comcare [2000] AATA 988 at [31] – [32]. The Tribunal was mindful, of the difficulty that may be caused in calculating the non-economic loss of each injury, where issues of pain, suffering, loss of amenities (including mobility, social relationships and recreation and leisure activities) and other loss are considered. It determined that regard be given to the evidence of the applicant, the relevant provisions within the Comcare Guide and a questionnaire he completed in making findings of the non-economic loss.
As referred to earlier, calculation of the non-economic loss is undertaken according to the provisions of Part 1, Division 2 of the Comcare Guide by deriving a score corresponding to the description of effect upon an applicant’s lifestyle. (The Principles of Assessment within the Comcare Guide record that non-economic loss may be characterised as the ‘lifestyle effects’ of an impairment. ‘Lifestyle effects’ are a measure of an individual’s mobility and enjoyment of, and participation in, social relationships, and recreation and leisure activities).
The applicant completed two non-economic loss questionnaires. The first was completed on 28 February 2014 and is a form prepared by the respondent (Volume 5, pages 19 – 26). Some of the criteria within the form differ from the criteria within the Comcare Guide. The second questionnaire was completed on 3 August 2014 and is a form published by Comcare (Volume 5, pages 35 – 48). I will refer to the applicant’s responses to the criteria within both forms but greater weight will be given to his comments from the questionnaire which was published by Comcare and contains the same criteria as within the Comcare Guide.
It is unclear why both questionnaires were completed. It would be usual practice to complete a questionnaire when a permanent impairment application is made. (Copies of the respective section 24 claim forms are not within the T-documents. At page 26 of Volume 5 of the T-documents a reconsideration delegate of the respondent has recorded that a claim for permanent impairment compensation was lodged on 2 January 2014 for the applicant’s right shoulder). The first questionnaire does not record the injury intended to be the subject of the responses to the criteria although Dr Harewood has completed the last page (page 26) and refers to the described impairments as relevant to the right and left rotator cuff tears. The second (Comcare) questionnaire specifically describes the accepted conditions as left and right shoulder injuries. I am satisfied that it can be assumed that that form records the responses of the applicant to the lifestyle effects on both shoulders.
In making the findings that follow I will also have regard to the applicant’s evidence heard in this review.
The Tables comprising the basis for calculating non-economic loss within Part 1, Division 2 are:
·Table B1 – Pain
·Table B2 – Suffering
·Table B3 – Loss of amenities
oTable B3.1 – Mobility
oTable B3.2 – Social relationships
oTable B3.3 – Recreation and leisure activities
·Table B4 – Other loss
Table B1 – Pain
In the first questionnaire, the applicant recorded he had dull on going pain increased by activity controlled only by medication (Celebrex, Panadeine and Aspirin nightly) and massage as required (page 20). He also recorded that pain was increased especially if lying on his right side… and overusing the left arm the left shoulder started to hurt so both shoulders are troublesome. In the second questionnaire (page 37), he recorded he had on going pain in both shoulder (sic) and troublesome pain spreading into upper arm and biceps region with spasm in the shoulders with the simplest of movement…. He recorded the pain disturbs his sleep and the time between episodes is greatly reduced and required increased doses of medicine anti-inflammatory and painkillers and the shoulder pain is deteriorating.
In evidence the applicant said he wakes after one hour of sleep because of pain when lying down. He then gets up and attempts to sleep sitting in a chair. He suffers pain at all times which is partially relieved by medication.
The scores under this Table which may apply to the applicant are:
Score Description of level of effect 2 Intermittent attacks of pain. Not easily tolerated, but short lived. Pain responds fairly readily to treatment (for example, analgesics, anti-inflammatory medications). 3 Episodes of pain more persistent. Not easily tolerated. Treatment, if available, of limited benefit. 4 Pain occurring most of the time. Restrictions on activity. Resistant to treatment.
The applicant has suffered a severe injury in each shoulder. He does not suffer intermittent attacks of pain nor are they short lived. He is in pain at all times and treatment, by medication, gives partial but temporary relief only from the pain which I am satisfied is severe. The pain is often intolerable, especially affecting sleep and all movements of his arms originating at each shoulder. The consequences of the injuries apply equally to both shoulders. I am satisfied the applicant attracts a score of greater than 2 but slightly less than 4, because the pain is not resistant to treatment (there is some, if not limited response to medication) and some benefit has been achieved by physiotherapy treatment. In the circumstances a score of 3 applies to each shoulder.
Table B2 – Suffering
In the first questionnaire (page 21), the applicant recorded that his pain is persisting, he cannot ignore it and he has a restricted range of motion which causes him embarrassment by an inability to undertake some tasks and assist fellow workers in the workplace. His inability to sleep affects his mood with resulting feelings of helplessness and emotional disturbance. The second questionnaire (page 44) makes a specific reference to both shoulders and the need to take sleeping tablets because his poor sleeping pattern causes distress.
In evidence, the applicant said he is perceived in the workplace as being a bludger, because the shoulder injuries restrict him undertaking full duties. Domestically, the applicant said he feels inadequate and is unable to perform many routine tasks. He is frequently moody, frustrated and feels tense. In cross examination, the applicant said he has not had any psychiatric treatment or counselling as a consequence of the pain nor has he been prescribed antidepressants. It was acknowledged the applicant had been issued with one prescription of 24 sleeping tablets five months before the date of hearing.
Notes appended to this Table record:
Suffering means the mental distress resulting from the accepted conditions or impairment. It includes emotional symptoms which are within the normal range of human responses to distressing events such as grief, anguish, fear, frustration, humiliation, embarrassment.
Only ongoing suffering of a continuing or episodic nature is considered.
I am not satisfied that the notes above preclude a score being assessed in favour of the applicant from this Table, nor am I satisfied the applicant has experienced no more than frustration and embarrassment as the respondent submitted. Having observed him during the hearing and by regard to the severity and extent of his injuries, to both upper limbs, the presence of pain at all times and his emotional response to pain which he has endured for many years, I am satisfied that his mental distress is beyond the normal range of human response and is continuing.
The scores under this Table which may apply to the applicant are:
Score Description of level of effect 2 Distinct symptoms of mental distress which are episodic in nature. Activities reduced during such episodes. Recovers quickly after episodes. 3 Symptoms of mental distress are distinct and varied. Episodes of mental distress occur regularly. Ability to cope or perform activity effectively reduced during episodes. Needs time to recover between episodes. Treatment – medication such as antidepressants, counselling or other therapy by a psychologist or psychiatrist, or other supportive therapy – is of benefit in controlling or relieving symptoms. 4 Symptoms of mental distress are wide ranging and tend to dominate thinking. Rarely free of symptoms of mental distress. Difficulty coping or performing activity. Treatment necessary either to control or relieve symptoms.
In making a finding of a score under this Table, I do not understand that the criteria against each score must be satisfied. Rather, I understand that the score to be applied is to be commensurate with either the majority of the criteria against each score or deciding, by regard to the combined tenor of the criteria, which best describes the applicant’s circumstances.
Another issue in this application is the duality of injuries. The right shoulder injury occurred in September 2009 and arguably the degree of suffering from that time was less than the degree of suffering after January 2014 when he aggravated the previous left shoulder injury. But it has been endured for longer than the left shoulder. There was no focus during the hearing on a comparison of the degree of suffering from both those dates. After September 2009 the applicant at least had function and use of his left arm, notwithstanding that he was right-handed. From January 2014, use of both arms has been severely restricted, his pain has continued and to a greater extent and on his evidence, which I accept, has contributed to his suffering, probably because of the compounding effect on his limitations.
On balance I am satisfied that a score of 2 should be applied in respect of the applicant’s right shoulder because his symptoms were distinct, were in the nature of mental distress, were episodic in nature and his activities were reduced. I think a similar finding should be made in respect of the left shoulder, because it is that injury which must also be assessed, as opposed to an assessment of the contribution to the suffering by that injury upon the applicant with an equivalent injury in his other limb. To follow that path runs the risk of assessing the suffering upon the applicant as a whole person when, section 27 entitles compensation for non-economic loss in respect to an injury. I do not know of any authority on these issues and none was submitted. The exercise of making a finding of the suffering experienced by the applicant as a result of his left shoulder injury, in his circumstances, is very difficult but in an attempt to exclude the presence of the right shoulder injury I find that an equivalent score of 2 should be also be applied in respect of the applicant’s left shoulder.
Table B3 – Loss of amenities
Table B3.1 – Mobility
In the first questionnaire (page 22), the applicant recorded that his mobility was reduced and he was forced to use special measures around his home when mowing his lawn, painting and performing general maintenance. In the second questionnaire (page 38), the applicant recorded that he is able to drive his car short distances only with the help of power steering.
In evidence, the applicant said he drives an automatic car for a maximum of half an hour and then has a break for 15 minutes. His wife does not have a motor car drivers’ licence and he drives with her to a local supermarket. He is able to use public transport but only during off-peak times to ensure that he is able to obtain a seat.
The notes appended to this Table record that mobility refers to the employee’s ongoing ability to move around in his or her environment. This includes walking, driving, being a passenger, using public transport.
There is an effect upon the applicant’s mobility by the limitations upon driving his motor car, despite it having power steering, for more than half an hour without having to break for 15 minutes. He is restricted using public transport but only during peak hours when he would be at risk of not obtaining a seat and then being unable to hold supporting railings or overhead straps.
The most relevant criteria within this Table is as follows:
Score Description of level of effect 1 Periodic effects on mobility, resulting in the need for some assistance or effects continuing but mild (such as slowing of pace or the need for a walking stick). 2 Mobility reduced, but remains independent of others both within and outside the home. Can travel but may require rest breaks, special seating or other special treatment.
I am satisfied this criteria is appropriate to the applicant’s circumstances. The effects on his mobility are a limitation on the periods of driving his motor car and using public transport during peak hours. I regard that effect as mild. He is not limited in walking or being a passenger. I think the other limitations recorded by the applicant in the questionnaire are more likely to fit within Table B4 – Other Loss. A greater level of effect on mobility by the injuries would need to be experienced by the applicant to attract a score of 2. A score of 1 will be applied under this Table for each shoulder.
Table B3.2 – Social relationships
In the first questionnaire, the applicant recorded (page 23) that he was frustrated with his inability to join the fun keeps me from social activity with family and friends like going on picnics and dancing also my inability to help around the house creates tension which affect peace and tranquillity. In the second questionnaire (page 45), he recorded that the time between periods of pain are shortening which do increase emotional distress that causes difficulty in maintaining social relationships. For others I’m not much fun to be with.
In evidence the applicant said that he and his wife frequently enjoyed Latin dancing in which he cannot participate because it requires elevated use and frequent movement of both arms. He said he is unable to maintain friendships because he no longer participates in social activities, barbecues and picnics which he did previously. He does attend church. He said he can work and interact with co-workers and undertake his work as a shop steward. He said he has maintained his relationship with his wife but she is frequently irritated and there is tension between them because he often indicates he is unable to perform routine maintenance or work around the house. Since September 2009, he thought his relationship with his wife had deteriorated.
The relevant criteria within this Table is as follows:
Score Description of level of effect 1 Minor interference with personal relationships, causing some reduction in social activities and contacts. 2 Relationships confined to immediate and extended family and close friends, but unable to relate to casual acquaintances. 3 Difficulty in maintaining relationships with close friends and the extended family.
The applicant said on a number of occasions during the hearing that he did frequently socialise with family and friends in picnics and barbecues which have been severely restricted because the presence of pain interferes with his ability to experience pleasure and engage in conversation. He has withdrawn from some of those activities. He also spoke on a number of occasions about the pleasure that he obtained from engaging in Latin dancing with his wife which is now beyond him because of the restriction of movement of both of his arms.
I am satisfied that the level of effect by his injuries is more than minor interference and there has been more than some reduction in social activities. He is has been able to maintain relationships with close friends and his extended family. A score of 2 should be applied under this Table to each injury.
Table B3.3 – Recreation and leisure activities
In the first questionnaire (page 24), the applicant recorded that he was unable to participate in sport, namely table tennis and billiards, in which he previously engaged. He recorded that he is frustrated watching others have fun and he felt crippled. In the second questionnaire (page 39), he made a similar recording but added that continuing pain and restriction of range motion and abduction with increased pain with any activity caused him to be unable to engage in recreation. He also recorded that he is only able to drive his motor car for short distances.
The applicant said in evidence he previously played table tennis when he worked at the Melbourne Letter Mail Centre before he transferred to the Dandenong Letter Centre where he played billiards but that is now beyond him because of his shoulder injuries. He said he watches others and is frustrated. He is no longer able to play golf, participate in Latin dancing or lift his grandchildren or play with them.
The relevant criteria under this table would be:
Score Description of level of effect 2 Interference to activities reduces frequency of activity, but is able to continue. Is able to follow alternatives. 3 Unable to continue with pre-injury level of activity. Alternative activity possible. 4 Range of pre-injury activity is greatly reduced. Needs some assistance to participate in pre-injury recreation and leisure activities.
The applicant has not been able to continue to engage in all of his pre-injury level of activities. The reduction in his activities is more that interference but less than greatly reduced. He cannot play billiards or golf (he had not played table tennis for many years) but he does engage occasionally in picnics and barbecues and but does engage socially with his family, both immediate and extended. His inability to engage in Latin dancing has been considered above and will not again be considered here. I am satisfied a score of 3 should be applied to each injury.
Table B4 – Other loss
In the first questionnaire (page 25), the applicant recorded that restricted elevation of his arms forced him to buy clothing with buttons at the front. He also recorded that as his shoulders deteriorate it would necessitate modifications to his home. In the second questionnaire (page 46), the only recording made by the applicant was not yet at this stage.
The applicant’s response in the second questionnaire may be explained by the criteria recorded in the first questionnaire being inconsistent with the criteria under the Comcare Guide as recorded in the second questionnaire. The applicant self-assessed a score of 1 against the criteria of slight disadvantages in the first questionnaire. The second questionnaire recorded a number of circumstances which were described as moderate disadvantages.
In evidence, the applicant said that if he was not wearing clothing with buttons at the front (for example a T-shirt) he needs assistance from his wife to dress and he feels like a child. He also needed her to put on his tie when he came to the hearing. He no longer wears shoes with laces because he cannot tie knots. He is severely restricted when having a shower and has fitted a long handle brush to the wall which he rubs against in order to wash his back. His lack of dexterity and strength has caused him to be unable to undertake home maintenance and repairs and his need to engage tradespersons which frustrates him. Some examples of the restrictions imposed upon the applicant by his injuries were obvious during the hearing. He was unable to lift a small jug and pour a glass of water – he completed that task by standing, tilting the jug, without lifting it towards a glass which he held below the level of the witnesses’ bench. He read documents by keeping his upper arms tucked against his chest, raised his lower arms from the elbows whilst holding documents and leant forward to read them.
The relevant criteria under this Table are:
Score Description of level of effect 0 Nil or minimal disadvantages. 1 Moderate disadvantages. For example dependence upon a specialised diet; detrimental effects of climate features including temperature, humidity, ultraviolet rays, light, noise, dust. 2 Marked disadvantages. For example, requirement to move to specially modified premises.
I am satisfied that the level of effect upon the applicant by his injuries is greater than minimal and less than marked (but only by regard to the tenor of the criteria against a score of 2). I am satisfied the Other loss(es) suffered by the applicant are best described as moderate disadvantages. The examples given attracting a score of 1 should be understood as examples only to which the applicant is not confined. I am satisfied that each injury, which has caused the applicant to need assistance with dressing, tying shoelaces and his impediment with bathing attracts a score of 1 for each shoulder. The limitations on his dexterity must be numerous as obvious by the two examples recorded above observed during the hearing. The inability of an adult to dress, on occasions, unassisted and be unable to bathe unrestrained is more than a minimal disadvantage.
Decision
For the reasons expressed above, the decisions in relation to each application are as follows:
(a)2013/2801 – the reviewable decision made on 10 May 2013 is set aside and in substitution it is decided:
(i)the normal weekly hours of the applicant has not been 39 hours and 55 minutes per week;
(ii)the normal weekly hours of the applicant is 36 hours and 45 minutes plus overtime hours;
(iii)the applicant has been incapacitated from working overtime from 13 March 2012 and is entitled to compensation for the consequent lost income; and
(iv)the applicant has had a capacity to work 25 hours per week only from 25 February 2014 and is entitled to compensation for lost salary of 11 hours and 45 minutes and overtime.
(b)2013/5338 and 2015/2059 – both reviewable decisions are set aside and in substitution it is decided the respondent is liable pursuant to section 16 of the Act for the reasonable cost of physiotherapy treatment from 8 August 2013 in respect of the right shoulder and from January 2014 in respect of the left shoulder. The treatment shall be in the form of undertaking a program of home-based exercise as devised, monitored and supervised by a physiotherapist with whom the applicant shall personally consult once every three or four weeks as the physiotherapist shall determine.
(c)2014/3193 – the decision under review is set aside and in substitution it is decided the applicant is entitled to compensation in respect of an aggravation of his right shoulder injury arising out of work undertaken by him on 29 January 2014.
(d)2014/5785 – the decision under review in so far as it decided the applicant was entitled to an award of compensation in respect of 13% permanent impairment pursuant to section 24 of the Act in relation to the right shoulder is affirmed. The remainder of the decision concerning the applicant’s entitlement to compensation pursuant to section 27 of the Act is set aside and in substitution it is decided the applicant is entitled to the following scores:
Pain 3 Suffering 2 Mobility 1 Social relationships 2 Recreation and leisure activities 3 Other loss 1 The application is remitted to the respondent for calculation of the quantum of entitlement to compensation pursuant to sections 24 and 27 in accordance with this decision.
(e)2015/2358 – the decision under review is set aside and in substitution it is decided the applicant is entitled to an award of compensation pursuant to section 24 of the Act in respect of a 13% permanent impairment of his left shoulder. The applicant is also entitled to an award of compensation pursuant to section 27 in respect of the following scores:
Pain 3 Suffering 2 Mobility 1 Social relationships 2 Recreation and leisure activities 3 Other loss 1 The application is remitted to the respondent for calculation of the quantum of entitlement to compensation pursuant to section 24 and 27 of the Act in accordance with this decision.
The applicant is entitled to an award of his costs and disbursements pursuant to paragraph 6.10 of the Guide to the Workers Compensation Jurisdiction practice direction issued by the Tribunal in September 2013.
I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member ..[sgd]......................................................................
Associate
Dated 30 June 2015
Date(s) of hearing 25 - 27 May 2015 Counsel for the Applicant Cassie Serpell Solicitors for the Applicant Angela Sdrinis Legal Counsel for the Respondent Cathy Dowsett Solicitors for the Respondent Sparke Helmore Lawyers
9
0