Goel and DHL Supply Chain (Australia) Pty Ltd (Compensation)
[2022] AATA 1158
•13 May 2022
Goel and DHL Supply Chain (Australia) Pty Ltd (Compensation) [2022] AATA 1158 (13 May 2022)
Division:GENERAL DIVISION
File Number(s): 2020/4078
Re:Gagandeep Goel
APPLICANT
AndDHL Supply Chain (Australia) Pty Ltd
RESPONDENT
DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:13 May 2022
Place:Melbourne
The Tribunal decides to set aside the decision of the Respondent dated 24 June 2020 and substitutes it with the decision that:
1.the Respondent is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the following injuries suffered by the Applicant to his right wrist:
a.a tear in the triangular fibrocartilage complex;
b.inflammation and aggravation of degenerative change;
2.the matter is otherwise remitted to the Respondent for the determination of any compensation arising from his injuries; and
3.the Respondent pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988.
..........................[sgd]..............................................
Dr Stewart Fenwick, Senior Member
Catchwords
COMPENSATION – claim for muscular strain of right scapula, pectoral and arm muscles, wrist – claim accepted as muscular strain right arm and scapula – later denial of liability for medical expenses and incapacity payments – wrist pain and underlying wrist pathologies –Tribunal jurisdiction over wrist challenged – wrist forms part of claim – Applicant suffered injuries – decision set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Australian Postal Corporation v Sellick [2008] FCA 236
Comcare v Luck [1999] FCA 100
Lees v Comcare [1999] FCA 753
Re Griffiths and Telstra Corporation Limited [2013] AATA 695
Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing (2004) ALD 514
Re Williams and Australian Electoral Commission and The Greens (1995) 38 ALD 366
Telstra Corporation v Hannaford [2006] FCAFC 87Click here to enter text.
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
13 May 2022
BACKGROUND
Mr Goel applied to the Tribunal on 6 July 2020 for review of a decision dated 24 June 2020 in which it was determined that the Respondent had no present liability for compensation for medical expenses or incapacity payments in respect of the Applicant’s previously accepted condition.
Mr Goel was born and educated in India, he arrived in Australia in the early 2000’s and worked with the Respondent in warehouse and packing duties from around 2013. His relevant medical history includes a wrist fracture sustained in 2013 in non-work-related circumstances. During 2016 Mr Goel commenced work in a role handling and packing goods in cold storage.
In late 2016 Mr Goel experienced symptoms in his right upper limb and lodged an incident report in early 2017. Mr Goel then lodged a claim for compensation on 25 January 2017 in respect of ‘muscular strain of right scapular pectoral and arm muscles, wrist’. On 23 February 2017 the Respondent accepted liability for ‘muscular strain of R scapular & R arm’.
A recommendation was made in 2017 for surgical intervention of Mr Goel’s right wrist. This recommendation was repeated in 2018 after radiology confirmed the state of his wrist joint, and this medical procedure was approved by the Respondent. Mr Goel has not yet undergone this procedure.
Mr Goel lodged a Statement of Facts, Issues and Contentions (SFIC) and the following additional material was admitted:
(a)Statement of Mr Goel dated 19 July 2021 (Exhibit A1); and
(b)Reports of Mr Damien Ireland, hand surgeon, dated 18 November 2020 (Exhibit A2) and 3 November 2021 (Exhibit A3).
The Respondent lodged a SFIC, ‘T’ documents, a tender bundle (TB). and the report of Dr Ron Haig dated 7 April 2021 (TB/R1).
Evidence was given by Mr Goel, Mr Ireland, Dr James Thomas, hand surgeon, Dr Haig, and Dr Tony Kostos, rheumatologist.
LEGISLATION
Liability for compensation for injuries arises under s 14 of the Safety Rehabilitation and Compensation Act 1988 (the Act).
Injury carries a particular meaning in the Act. Pursuant to s 5A an injury may arise out of, or in the course of, an employee’s employment. It may also take the form of an aggravation of an injury, whether or not that injury arose out of, or in the course of, their employment.
Section 5A also provides that an injury may take the form of a disease. Disease is defined in s 5B to mean an ailment, or an aggravation thereof, that was contributed to, to a significant degree, by an employee’s employment. Significant degree is defined to mean a degree that is ‘substantially more than material’.
In determining this causal relationship, the following matters may be taken into account (ss 5B(2):
(a) the duration of the employment;
(b) the nature of, and particular tasks involved with, the employment;
(c) any predisposition of the employee to the ailment of aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health
ISSUES
On the first day of the hearing the Respondent’s representative lodged a written submission in respect of jurisdiction. It highlights that the Respondent did not explicitly accept liability in respect of Mr Goel’s right wrist. In support of this submission, some factual matters relating to the content of medical certificates were asserted.
After receiving oral submissions, I determined that as the issue involved factual and medical matters, and that given the late notice involved, the question would be resolved in the decision and reasons.
In addition to the scope of the claim, the issues arising in this matter are the nature of Mr Goel’s wrist condition, and its definition in terms of the Act. Determining this issue involves identifying the requisite causal link under either s 5A or s 5B. I note that such causal connection must be continuing at the time of a decision.
More specifically, Mr Goel seeks a finding of liability in respect of his wrist leading to an entitlement for medical and treatment expenses, and a finding that his condition rendered him incapacitated for work, leading to an entitlement for payments for incapacity for work for all periods.
EVIDENCE
Chronology
Given the contentions arising in respect of the scope of the claim, I set out here a summary of the history of Mr Goel’s claim and treatment, with a particular focus on his right wrist. (Spelling in quotes follows source material).
Date
Event
Reference
Sept 2013
Mr Goel falls at home
ASFIC [9]
12/9/2013
X-ray report notes: longitudinal crack fracture to distal radius, apparently extending into the radio-carpal joint and with slight cortical breach dorsally.
T8
18/9/2013
X-ray report notes: Longitudinal fracture of the distal radius, with intra-articular extension is noted. There is positive ulna variance
T10
Mar 2016
Mr Goel commences work in DHL cold team
ASFIC [6]
18/5/2016
Mr Goel complains about bullying and discrimination and being forced to do the hardest available work
T18
4/1/2017
Mr Goel requests reassignment
T18
5/1/2017
Incident report dated 5/1/2017 submitted by supervisor records: repetitive packing of similar cold chain packing configurations has led to fatigue in right shoulder and elbow
T11
18/1/2017
Medical certificate diagnosis: Muscular strain of Right scapular, pectoral and arm muscles due to repetitive lifting strains at work, progressively worsening over the past 4-5 months
T12
25/1/2017
Claim for compensation with ‘diagnosed condition’: muscular strain of right scapular pectoral and arm muscles, wrist
T3
10/2/2017
Ultrasound report notes: right shoulder and scapula – essentially negative study; right elbow – mild common extensor tendinosis
T15
15/2/2017
Respondent requests information in respect of Mr Goel’s injury described as: Muscular strain of R scapular & R arm
T18
23/2/2017
Respondent accepts claim for compensation in respect of Muscular strain of R scapular & R arm
T17
10/3/2017
Physiotherapist Ms Clapham notes: … reports a full resolution of shoulder and elbow pain. Unfortunately he continues to report ongoing ulna sided wrist pain …
T20
14/3/2017
Medical certificate diagnosis: Muscular strain on right scapula and wrist related to repetitive movements at work place extensor tendinitis
T21
24/3/2017
Ultrasound report notes: right wrist – Mild tenosynovitis of the extensor digitorum and extensor carpal ulnaris
T22
28/3/2017
Medical certificate diagnosis: [previous shoulder and arm strain] now has settled. However, wrist pain which he had at the time (a minor complaint) has exacerbated and worsened
T23
5/4/2017
Report of Ms Whitten hand therapist: … findings [on physical examination] are consistent with a diagnosis of Impaction of the TFCC and ECU tenosynivitis of the right wrist
T24
1/5/2017
Report of Ms Konstantinidis to Respondent recommends radiology and corticosteroid injection
T28
9/5/2017
Report of MRI notes: mild subluxation distal radioulnar joint with small effusion; suspicion of joint instability; and localised chondromalacia of the distal radial surface; no evidence of TFC injury or features of ulnar abutment
T34
27/6/2017
Dr Kostos reports restriction of movement in all directions and diagnoses: pre-existing constitutional condition related to osteoarthritis in the wrist with cause not established; condition aggravated by duties
T41
24/8/2017
Dr Thomas reports a history of wrist pain from around mid-2016 extending up arm, diagnoses unstable distal radioulna joint, recommends arthroscopy and likely triangular fibrocartilage complex (TFCC) repair
T47
11/9/2017
Medical certificate notes: acute flare up at work, jarring hand, pain radiating up arm
T49
27/9/2017
Dr Kostos proposes MRI arthrogram to confirm TFCC tear
T52
15/1/2018
Dr Kostos reports dramatic change and markedly restricted wrist movement which were difficult to relate to radiology findings
T64
27/2/2018
Arthrogram report notes:
1. Partial full thickness tear of proximal aspect of the central portion of the TFCC with degenerative/tearing of the styloid fibres 2. Mild ECU insertional tendinosis 3. Full thickness chondral defect of the lunate fossa of the distal radius 4. Mild flexor carpal radialis tenosynovitis
T67
16/5/2018
Dr Kostos questions genuineness of presentation but notes worsening symptoms; unable to identify cause of TFCC tear
T72
19/6/2018
Dr Kostos notes variation in symptoms at each examination, seeks reassurance surgery is appropriate, and recommends corticosteroid injection with local anaesthetic; surgery recommended if this procedure resolves pain and movement
T74
26/7/2018
Dr Thomas reports: some signs of ulnocarpal impaction with discomfort with ulna deviation and repeats recommendation for surgical intervention
T79
10/8/2018
Respondent approves surgery per recommendation
T82
7/1/2020
Dr Kostos considers history of fracture explains osteoarthritis; no link with employment as it was inevitable that at some stage he would become symptomatic
T127
28/4/2020
Dr Thomas reports that changes noted in 2017 MRI are related to 2013 fracture and notes: However I do not believe that this prior injury relates to his current [claim]
T144
4/6/2020
Respondent determines no present liability based upon Dr Kostos’ report of 7/1/2020
T149
Mr Goel
In his statement (Exhibit A1) Mr Goel states that:
(a)treatment for his wrist fracture included a cast; after a few days he stopped feeling pain and returned to normal duties, forgetting about the injury until Dr Kostos called for Mr Goel’s medical records;
(b)he was moved to the Cold Chain Department in August 2014; he felt that he was humiliated by his supervisor and was given the hardest jobs in the team;
(c)his duties were confined largely to packing veterinarian orders in eskies weighing between 12-35 kg when packed, and closing them with tape guns;
(d)he complained about pain, which increased in 2016, leading to the lodging of an incident report in 2017;
(e)he did not undergo the recommended surgery as he considered that he would need household help following the surgery, which would involve strapping the site for six months;
(f)he still experiences symptoms in his wrist and continues with the Respondent on light duties.
At [52] of his statement Mr Goel expands upon the claim for compensation:
I made a claim for compensation on 25 January 2017 for “Muscular strain of right scapular pectoral and arm muscle, wrist”. This is where I experienced symptoms. The shoulder and upper body on the right side was sore from the work handling the gun I think; but the wrist was very sore from behind the little finger side of the hand near the wrist. That was also hurting from using the gun as well as from picking up heavy boxes – that when I felt the pain. I felt this throughout the day and over 2016 into 2017 it got worse and didn’t get relieved by rest. The pain was felt in the shoulder, the arm, the elbow, forearm and wrist and hand.
According to Mr Goel’s statement, his employment with the Respondent appears to have been marked by several instances of grievances lodged both internally and with the Fair Work Commission.
In his oral evidence, Mr Goel explained that his packing duties in the cold chain area included lifting eskies from a trolley to a bench, and adding ice bricks, product and gel packs. This was followed by sealing in several directions and around the edges with tape guns. He described the guns as weighing 1 kg when loaded with tape.
Mr Goel stated that in March or April 2016 his whole upper limb was sore. His later complaints were made verbally to his supervisor and site manager.
Mr Goel’s treatment included physiotherapy with a hand therapist who provided a splint. Mr Goel agreed that he had also made a claim relating to his left arm which was accepted.
Mr Goel stated this arm symptoms all went away after being taken off cold chain work in early 2017. The only symptom that remained was his right wrist, and consequently he attended upon Dr Thomas in that year.
Mr Goel confirmed that he continues to use a combined analgesic and anti-inflammatory medication, which he described as a ‘pain killer’. This is a medication prescribed for his sinus. Mr Goel stated that he considers it also reduces pain in his wrist. He stated that he did not intend to explore surgery if he is able to manage the pain; Dr Thomas has explained the risks to him, and Mr Goel considers he cannot afford to spend six months in a brace.
In cross examination, Mr Goel confirmed that from January 2017 his use of his right arm was restricted due to the splint. Having ceased in the cold chain area, Mr Goel currently engages in keyboard work and does not wear a splint.
He confirmed that his symptoms did not appear until he was engaged in the cold chain duties. Mr Goel acknowledged that in his claim for compensation he had not recorded having previously experienced similar symptoms. He responded ‘yes’ when asked whether he had forgotten his fracture. Mr Goel also confirmed that he had forgotten having injured his face in the same incident that caused the fracture.
Mr Goel stated that he had explained his situation to his supervisor at the time when he experienced the fracture. He was told to ‘come back’ [to work] and that the situation would be assessed. Mr Goel removed the cast with the help of a friend after two days as it was impeding his duties.
When asked whether he was involved in the lodging of the incident report in January 2017, Mr Goel stated that he was called into the office and he related that he was having trouble with his duties. He did not know the procedure for making a report.
When provided with a copy of the report (T11), Mr Goel stated that this was the first time he had seen it. When asked about the wording used in the report, Mr Goel stated that he ‘used words to that effect’ and had reported ‘pain in my whole arm’, meaning from the shoulder to the tips of the fingers.
When asked if he carefully read the claim form prior to its submission, Mr Goel stated that he was called into the office, advised that it was being submitted, and was asked to sign. He accepted that he had filled out the form by hand and understood its importance.
Mr Goel was asked if he experienced wrist pain at the time of the claim. He responded that he was unable to ‘subdivide where the pain came from’.
Mr Goel stated that he had not attended his own GP in relation to the symptoms as he ‘managed myself’. He was driven to the ‘company doctor’ in order to obtain a certificate, which was Dr Mendis. In re-examination, Mr Goel added that his supervisor attended with him at this time.
Medical evidence
In his first report from 18 November 2020 (Exhibit A2), Dr Ireland diagnoses ‘right wrist dysfunction due to soft tissue injury’. Dr Ireland notes that he considers that the injury involves the TFCC and there is no clinical evidence of osteoarthritis, but there may be a minor constitutional degenerative component. He states further that the 2013 injury is ‘irrelevant to the current injury’, and he supports the recommended surgical investigation.
In his second report (Exhibit A3) one year later on 3 November 2021, Dr Ireland essentially repeats his earlier findings, and observes that Mr Goel also presented with mild left elbow lateral epicondylitis. Dr Ireland states further that ‘There is in all probability an underlying degenerative component to the right wrist injury which in [his] opinion has been aggravated to a significant degree by the nature of the work activity’.
In his oral evidence, Dr Ireland confirmed his opinion that osteoarthritis was not evident in imaging. With reference to a physical model, he explained that the ulnar deviation in Mr Goel’s right wrist is demonstrated by the ulna bone being longer than normal. He confirmed this observation is not included in his report.
Dr Ireland considered the use of the tape gun to be the ‘major provocative action’ and the particular nature of the job had made the underlying condition of the wrist more severely symptomatic. He stated further that he had personal experience of a very similar situation in which certain manual tasks rendered his own wrist symptomatic.
He considered that the TFCC needed treatment, and that shortening of the ulna might also be necessary.
In cross-examination, Dr Ireland confirmed Mr Goel’s ulna length was a lifelong situation. He accepted that it was best determined by X-ray. He stated that any other arm symptoms experienced by Mr Goel had ceased prior to his examination.
Dr Ireland agreed that Mr Goel’s duties had changed, he no longer used a tape gun, and that Mr Goel’s symptoms would have eased but for this work.
In re-examination, he restated his opinion that Mr Goel’s wrist condition would ‘slowly creep up over time depending on right hand activities’. He added that strong analgesia would also be appropriate.
In his evidence, Dr Thomas explained the surgical procedure he has recommended would involve an examination under anaesthetic; arthroscopic assessment of the TFCC, and, if necessary, ligament repair to restore stability of the distal radioulnar joint.
Dr Thomas stated that radiology showed that Mr Goel had slight positive ulnar variance. This was within the normal range in the community but predisposes Mr Goel to the TFCC issue.
He considered that the experience of a load in an extended position was provocative of Mr Goel’s condition. Dr Thomas also stated that repetitive movement, including cutting tape and probably lifting, would also be included in this description.
Dr Thomas stated that Mr Goel would benefit from strong analgesia and may also be a candidate for surgery. Dr Thomas considered that TFCC repair to improve stability was a very successful procedure in his experience, with 80-90% of patients seeing significant improvement in symptoms.
Dr Thomas did not consider Mr Goel exhibited osteoarthritis. Mr Goel was however more prone to his condition due to the nature of his ulna, and a sedentary person may not necessarily experience the same outcome.
In cross-examination, Dr Thomas accepted that radiology in 2017 had raised the possibility of the commencement of osteoarthritic change. He accepted that Mr Goel had experienced a change of duties and was in a sedentary role when last examined in 2019.
He agreed that a range of activities other than work duties might cause TFCC symptoms to arise, but when last examined, Mr Goel was experiencing them. Dr Thomas recommended, however, that Mr Goel be evaluated again prior to any surgery.
Dr Thomas reaffirmed his opinion that the May 2017 MRI indicated evidence of a TFCC injury. He highlighted the high signal in the foveal area, structurally the most important part, and stated it was not uncommon to disagree with radiology in the hand or wrist. He agreed that the localised chondromalacia was indicative of degenerative change, this may progress on radiology over time.
In his report of 7 April 2021 (TB/R1) Mr Haig concludes that Mr Goel appears to have ‘some degenerative changes in the TFCC as showing on a subsequent MRI though not on the initial one… these are more likely due to … age related degeneration than any work-related factors’. He disagrees that there is radioulnar joint instability or clinical evidence of significant osteoarthritis. Mr Haig agreed that repetitive and heavy manual employment has significantly contributed to aggravation of Mr Goel’s condition.
Mr Haig stated that he now understood there had been further deterioration in the condition of Mr Goel’s wrist. It now may not be the case that the 2013 fracture was an irrelevant consideration, as he reported.
Mr Haig agreed that the 2013 injury was not relevant in relation to Mr Goel’s ulnar variation, but now considered the joint surface had been involved, and there is now evidence of degenerative change.
In cross-examination, Mr Haig confirmed that he had altered his opinion based on new material provided prior to the hearing. However, he clarified that there was radiological evidence of significant osteoarthritic change but not clinical evidence, based on his examination of Mr Goel in March 2021. Mr Haig also stated that Mr Goel’s symptoms had improved when he was away from his duties on leave.
Mr Haig considered it doubtful that Mr Goel’s constitutional ulnar abutment issue was a relevant factor in his condition, even given his manual duties. However, he did not consider this an unreasonable proposition, and could not disagree with Dr Ireland’s personal account.
Mr Haig agreed that the exploratory procedure recommended by Dr Thomas was often seen in hand cases but he was unable to comment on the success rate. He considered it imprudent for Mr Goel to return to his duties involving a tape gun.
Dr Kostos confirmed the provision of a number of reports, primarily summarised in the Chronology above. He also provided a further report dated 1 June 2021 (TB/R2). In this report Dr Kostos states that positive ulnar variance is associated with TFCC pathology and he considered there was a TFCC component in Mr Goel’s case. There are also significant degenerative changes shown on radiology, however, it remains to be seen what the cause of his symptoms is.
In his evidence, Dr Kostos stated that early in his engagement with Mr Goel the issue was the existence of multiple diagnoses. Some were non-surgical, such as the reference to scapula involvement in the context of a muscle strain in the terms of the claim in this matter.
Dr Kostos explained that the reference in the May 2017 MRI to scarring and cystic change is usually an indication of well-established osteoarthritis. At this time, however, Dr Kostos had no history of a prior injury, including in the history obtained from Mr Goel. The more recent finding of full thickness chondral loss suggests osteoarthritis was more advanced than in the earlier scan.
He stated that Mr Goel’s presentation upon examination in January 2018 was difficult to relate to his symptoms or radiology. He explained that he questioned Mr Goel’s genuineness in the May 2018 report, in part, because Mr Goel’s grip strength was so weak in both hands.
Dr Kostos also confirmed that it was common not to be able to determine the origins of the partial tear in the TFCC. He stated most patients at Mr Goel’s age will have some asymptomatic change, but any change must be correlated with patient history and physical findings.
With respect to surgical intervention, Dr Kostos stated that he does not see TFCC repairs that improve with surgery, and he considers surgeons always overestimate their success rate.
In cross examination, Dr Kostos emphasised that the degenerative change was located at the site of the fracture and noted that Mr Goel exhibits tenderness over the ulnar aspect. Accordingly, he considered that Mr Goel may have two distinct issues.
Dr Kostos agreed that Mr Goel had not complained of symptoms following resolution of his fracture, and also agreed that osteoarthritis is a condition that is part of advanced age and can be asymptomatic. He accepted Dr Thomas’ opinion that TFCC changes may occur at the site of a fracture but that not all TFCC’s need repair.
Dr Kostos expressed his disagreement with Mr Haig’s opinion about positive ulnar variance, and he considered this a significant risk factor for developing TFCC injury. It was put to Dr Kostos that both hand surgeons considered abutment syndrome a predisposing factor in the context of Mr Goel’s packing duties, and he accepted that work had aggravated the condition.
CONSIDERATION
Jurisdiction submission and scope of claim
The Respondent cites Lees v Comcare [1999] FCA 753 (Lees) and a decision of the Tribunal, Re Griffiths and Telstra Corporation Limited [2013] AATA 695 (Griffiths) in its written submission on jurisdiction. The latter is cited in support of a contention that Mr Goel’s application is frivolous. The written submission then goes on to state that the Tribunal should affirm the decision under review.
In submissions prior to the commencement of the hearing, the Applicant’s representative cited Telstra Corporation v Hannaford [2006] FCAFC 87 (Hannaford) for the proposition that decision making in this jurisdiction is progressive and evolving. Further, the Tribunal is not bound by the description of an injury by an earlier decision maker.
In response, the Respondent contended that the situation was not governed by Hannaford. It was submitted that the medical certificates from the time of the claim do not support the view that Mr Goel’s wrist forms part of the claim and, further, the decision-maker is not bound by the claim form.
The Applicant’s representative contended that Lees was not pertinent, and that the claim form referred to Mr Goel’s wrist, and this should be taken as notification of the injury.
The decision of Comcare v Luck [1999] FCA 100 was cited, in which his Honour French J, as he then was, found that the claim for compensation could stand as notice of injury as it indeed purported to give such notice. This was based on the specific findings of the Tribunal to that effect.
Reference was also made by Mr Goel’s representative in closing to Australian Postal Corporation v Sellick [2008] FCA 236 (Sellick), a decision relating to findings in a Tribunal decision about additional conditions not specifically mentioned in an accident report or claim for compensation.
The Respondent contended in closing that the original delegate dealt with the medical evidence for the conditions as claimed. It was also contended that a recommendation for wrist surgery was made at a time when liability was still accepted for the shoulder injury. However, the Applicant cannot point to any accepted liability for a wrist injury and as the operation was not proceeded with, the issue lapsed.
It was also asserted that the Respondent would have conducted a review of present liability on its own motion, prior to approving any surgical procedure.
The Respondent’s written submission refers, arguably, both to dismissal by the Tribunal under s 42B on the grounds that Mr Goel’s application is frivolous, and to making a decision under s 43 of the Administrative Appeals Tribunal Act 1975 affirming the decision under review. A decision under s 42B can be made at any time.
The Tribunal decision cited by the Respondent (Griffiths) is plainly not binding. I consider it distinguishable, in any event, due to the circumstances in that matter, being dismissal of an application upon inability to substantiate a claim for expenses.
The decision in Lees, equally, arose in particular circumstances, being the purported exercise of power to review a claim for permanent impairment. I accept that the description in Lees of the manner in which liability arises under the SRC Act is of general relevance. (This includes the giving of ‘appropriate notice’ under s 35 of the SRC Act (Lees at [35])).
I am unable to identify any substantive issue in Mr Goel’s matter to justify dismissal on the basis that his application is frivolous. I also note that the authorities demonstrate that caution is to be exercised when considering whether such a finding should be made, particularly when the outcome rests upon interpretation of the law (Re Williams and Australian Electoral Commission and The Greens (1995) 38 ALD 366, and Re Marnotta Pty Ltd and Secretary, Department of Health and Ageing (2004) ALD 514).
The question remains as to the proper interpretation of the scope of Mr Goel’s claim.
I do not consider that the circumstances in this case raise an issue of progressive and evolving decision making (Hannaford). Nor does it raise a question of whether a condition found to exist is referable to the original claim (Sellick).
Mr Goel’s situation is also not necessarily parallel to the circumstances in Luck as that case involved two particular features: a delay of several years between the Applicant becoming aware of an injury and lodging the claim; and an injury history of much longer standing. Nonetheless, I consider the reasoning in Luck to be helpful, particularly regarding the avoidance of a technical approach to notification and the want of prejudice (at [60] and [61]).
There is no doubt that Mr Goel has always asserted, in writing, a wrist complaint. Granted, there is no reference to the wrist in the medical certificate that was required by s 53(2)(b) of the SRC Act. This may well provide an explanation for the terms of acceptance of the claim by the Respondent. However, the legislation does not refer to this element of the compensation process. Equally, authorities in general place an emphasis on the claim.
Medical material arising within months of Mr Goel’s claim refers very clearly to his wrist symptoms and express this as being an ongoing concern. It is described by Dr Mendis, who was responsible for the original medical certificate, as having previously been a ‘minor complaint’ (T23).
The Respondent has also, since relatively early in the claims process, actively engaged in the assessment and treatment of Mr Goel’s wrist. It was submitted for the Respondent that steps taken in claims administration did not amount to acceptance of a wrist injury, and that any inquiries were to address the nature and extent of the condition only. In all the circumstances, I consider the facts demonstrate that the Respondent was alert to the wrist component and so was not surprised or prejudiced.
Furthermore, the legislation emphasises the making of a claim, and is apparently silent on the terms of acceptance. More particularly, an application to the Tribunal is made under s 64(1) for review of a reviewable decision, which is defined to include reconsideration of determinations under s 62. This in turn includes, in s 62(1), a reconsideration of a determination made by its own motion, defined as including a determination under s 14.
Thus, while this was not the subject of submissions in Mr Goel’s case, it appears evident that it is open to the Tribunal to consider on review the initial determination under s 14, regardless of the language that may have arisen in respect of such an ‘original’ decision.
Finally, I note that under s 54(3) of the SRC Act, a claim is not considered to have been made until a certificate of the kind referred to in s 54(2) is given to the Respondent. Since such a relevant certificate was provided, I consider this fact alone ought to cure any issue that may be found as a result of the first certificate.
For these reasons I find that Mr Goel’s Application does not fail on the issue of jurisdiction.
The Respondent’s SFIC contends that should jurisdiction be found, that Mr Goel’s claim must be excluded under s 7(7) of the SRC Act. This is on the basis that he represented that he had not previously suffered from the condition in his claim form, despite having experienced a fracture.
The Applicant submitted in closing that the Respondent had not in fact pursued this argument, and I note the Respondent’s closing submissions did not address it.
Mr Goel’s evidence that he had forgotten about his fracture and had not experienced ongoing symptoms from that injury was uncontested. That provision of the SRC Act requires a representation about prior injury to be wilful and I do not think this threshold could be satisfied here.
Medical conditions
There is no dispute that Mr Goel suffered a wrist fracture in 2013. I accept on the basis of the evidence overall that this condition did not greatly trouble him, and that in effect he continued to work apparently without difficulty.
The medical evidence also demonstrates that Mr Goel experienced one or more forms of muscle strain in the right upper limb in 2017. There is evidence (for example T23) indicating this problem was not of long duration, and any concerns over shoulder or arm strain had settled by March of 2017.
Medical material from March 2017 also indicates that Mr Goel was experiencing issues with wrist pain. This is most evidenced from a physiotherapy report (T20) and is stated in a certificate of capacity (T23). Mr Goel underwent an ultrasound of the wrist around this time (T22) which appears to diagnose tenosynovitis, or a soft-tissue condition.
The medical understanding of Mr Goel’s wrist issues appears to have evolved relatively quickly from this point in time to embrace structural features. From early April 2017 (T24) there was consistent focus on the TFCC, which was confirmed and better defined by the February 2018 arthrogram (T67). Subsequently, in July 2018, it appears Dr Thomas confirmed impaction within this structure (T79).
At this time, Dr Thomas also raised ulnar deviation. As seen from the evidence at hearing, this is a naturally occurring longer ulna. There is no dispute from the evidence overall about this.
There is, however, less clear agreement about osteoarthritic change in the wrist. Dr Kostos relied upon a May 2017 MRI (T34) when identifying osteoarthritis as the source of Mr Goel’s wrist concerns. Dr Ireland and Dr Thomas were not of the view that degenerative change was visible on imaging, or if it were, they considered that it may have been minor.
Regardless of this variation in opinion, it is clear from later radiology results that Mr Goel’s wrist does, in fact, evidence obvious osteoarthritic change, as noted for example in the evidence of Dr Haig.
I understand from the evidence that Mr Goel ceased working in the cold chain department in early 2017, and is not presently engaged in packing duties but, according to his statement, still experiences pain symptoms. This is supported by the examination findings of Dr Haig (Exhibit R1) from April 2021.
There is some disagreement about the likely impact of the surgical procedure proposed by Dr Thomas for Mr Goel’s TFCC. However, on balance, I accept that this has been recommended and may offer a benefit, noting that it involves several steps and is, to some extent, also exploratory. I accept that he may benefit from analgesia.
Dr Thomas considered that Mr Goel’s ulnar variation predisposed him to development of a TFCC problem, and Dr Haig also described the TFCC condition as degenerative. Dr Kostos considered it could be related to either a fracture site or ulnar variation.
The medical witnesses were unanimous in the view that Mr Goel has underlying degenerative change in his right wrist, and that this was contributed to by his manual packing duties. Among the experts, Dr Kostos was notably firm in his view that Mr Goel had underlying degenerative change, but he clearly accepted in evidence that Mr Goel’s employment aggravated this.
The Applicant submitted at the hearing that there is distinct pathology in Mr Goel’s wrist attributable to his strenuous packing duties. This led to a tear and cyst in the TFCC joint in an individual predisposed to such pathology, and there is no alternative thesis proposed.
It was further submitted that the evidence of Mr Haig and Dr Ireland was to the effect that Mr Goel may continue to experience symptoms. Liability persists therefore for treatment, including surgery, following the recommendations of Dr Ireland and Dr Thomas.
Finally, it was noted in submissions that the Respondent had an obligation to provide suitable alternative duties which, if withdrawn, could lead to an entitlement under s 19 to incapacity payments.
The Respondent contended at the hearing that there was, initially, no medical evidence supporting the existence of a wrist injury, and Mr Goel stated he had been unable initially to distinguish the site of pain. It was also submitted that Dr Ireland’s opinion with respect to osteoarthritis was contrary to the evidence, being the radiology demonstrating change as a consequence of the fall.
It was also contended that there had been a shift in emphasis in Mr Goel’s claim from wider duties including lifting, to a central focus on tape guns and the related action.
With respect to Mr Goel’s entitlement to incapacity payments under s 19, the Respondent contended that there is no entitlement where an employee has been working in suitable employment, and this was the case here.
The Respondent submitted that any parallel treatment that Mr Goel received in the past leading to prescription of what he understood as a pain killers, should not be considered treatment for the purposes of s 16. It was also contended that any liability for surgery was somewhat speculative and a procedure would require consideration in context at the relevant time.
On the basis of the evidence summarised, both immediately above and earlier in these reasons, I am satisfied that Mr Goel has an established degenerative pathology in his right TFCC and I find that this pathology satisfies the definition of disease. I further find that both of his other pre-existing and underlying conditions (positive ulnar variation and degeneration at the tip of the radius) have contributed to this. I also find that Mr Goel’s packing duties in the cold chain department aggravated the development of his degenerative pathology, which causes ongoing pain.
With reference to the factors identified in s 5B(2) of the SRC Act, while I have found that Mr Goel’s particular health background clearly predisposed him to the development of his present condition, such factors do not outweigh the direct causal link with his specific employment duties in the cold chain department, as identified by the medical witnesses.
CONCLUSION
The Applicant’s SFIC contends that a finding should be made as to the existence of an injury defined by way of quoting the findings of the February 2018 arthrogram of Mr Goel’s wrist (T67), which encompasses four distinct findings.
In doing so, this document also refers to both tests for causation, being that Mr Goel’s incapacity and impairment arose out of, or in the course of, his employment (the causal relationship required to establish an injury or an aggravation of an injury), and in the alternative that Mr Goel’s employment contributed to a significant degree to his incapacity and impairment (the causal relationship for establishing a disease).
This document includes the further submission that a finding of incapacity for work should be made on the basis that Mr Goel’s wrist injury includes radioulnar joint instability and a TFCC tear injury. The Applicant also seeks payments for medical treatment under s 16 of the Act, and compensation for incapacity under s 19.
Taking all of the evidence into account, I consider the preferable form for the key findings of fact in this matter to be that:
(a)Mr Goel suffered an injury in the form of a tear in the triangular fibrocartilage complex of the right wrist arising out of, or in the course of, his employment;
(b)Mr Goel suffered an ailment in the form of inflammation of structures in the right wrist which were contributed to, to a significant degree, by his employment; and
(c)Mr Goel suffered an ailment in the form of the aggravation of degenerative change in structures within the right wrist which was contributed to, to a significant degree, by his employment.
In making the findings with respect to the existence of an ailment, and aggravation of an ailment, I have taken into consideration the matters specified in subsection 5B(2) of the Act. Specifically, I find that the nature and particular tasks involved in his employment outweigh any predisposition to these conditions due to his prior fracture injury.
Notwithstanding the written and oral submissions in respect of compensation arising under ss 16 and 19 of the Act, I consider this matter was not conducted in such a manner as to assist in the formulating of relevant findings.
DECISION
For the reasons given above, the Tribunal decides to set aside the decision of the Respondent dated 24 June 2020 and substitutes it with the decision that:
(a)the Respondent is liable to pay compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the following injuries suffered by the Applicant to his right wrist:
(i)a tear in the triangular fibrocartilage complex;
(ii)inflammation and aggravation of degenerative change;
(b)the matter is otherwise remitted to the Respondent for the determination of any compensation arising from his injuries; and
(c)the Respondent pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988.
I certify that the preceding 115 (one-hundred-and-fifteen) paragraphs are a true copy of the reasons for the decision herein of Dr Stewart Fenwick, Senior Member.
...........[sgd]...............................
Associate
Dated: 13 May 2022
Dates of hearing: 22-24 November 2021 Counsel for the Applicant: Mr Mark Carey Solicitors for the Applicant: Slater and Gordon Lawyers Counsel for the Respondent: Mr John Wallace Solicitors for the Respondent: HBA Legal
0
4
0