Gordon and Comcare (Compensation) - [2020] AATA 352

Gordon and Comcare (Compensation) [2020] AATA 352 (27 February 2020)
Division:GENERAL DIVISION
File Number: 2016/6081
Re:Michael Gordon
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:27 February 2020
Place:Canberra

The decision under review is set aside and, in substitution, the respondent is liable to pay compensation to the applicant for “rotator cuff (capsule) sprain (right)” pursuant to s 14 of the Act.
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A G Melick AO SC, Deputy President
Catchwords
WORKER’S COMPENSATION – acute shoulder injuries – whether the applicant has suffered an ailment, or aggravation of an ailment – whether the ailment was contributed to, to a significant degree, by his employment – whether respondent liable under section 14 of the Safety, Rehabilitation and Compensation Act 1988 – decision under review set aside and substituted
Legislation
Safety, Rehabilitation and Compensation Act 1988
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Cases
Brennan and Comcare (1994) 50 FCR 555
Comcare and Martin [2016] HCA 43
Dunkerley and Comcare [2014] AATA 381
Kavas and Comcare [2011] AATA 935
Kearns and Australian Capital Territory [2019] AATA 1631
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
Small and Comcare [2017] AATA 2383
REASONS FOR DECISION
A G Melick AO SC, Deputy President
27 February 2020
INTRODUCTION

The applicant has been a member of the Australian Federal Police (AFP) since 1987 and has held a variety of postings and specialist training including the Police Tactical Group (PTG), Special Operations Team (SOT), Response and Security Tactical Response (SRSTR) and the Police Dive Team.
Many of his duties involved stresses and impacts upon his right shoulder which remained asymptomatic until he injured the shoulder in a non-work related rugby union match.
Shortly thereafter, on 8 June 2016, the applicant lodged a workers’ compensation claim in respect of torn tendons in his right shoulder rotator cuff and damage to his right arm bicep tendon.
ISSUES FOR DETERMINATION
(a)Has the applicant suffered a physical ailment or ailments such as to satisfy s 4(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act)?
(b)Were any physical ailments or, alternatively, aggravation of physical ailments suffered by the applicant contributed to, to a significant degree, by his employment such as to satisfy s 5B of the Act?
(c)Is the applicant entitled to compensation under s 14 of the Act?
There was discussion at the hearing as to the appropriate test to be applied bearing in mind the change following the assent of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007. This amended s 5B which now requires a contribution to a significant degree rather than a material contribution. I consider the material contribution test to have a lower threshold and hence will be covered by the second issue set out above: s 5B(3) of the Act; see also Kearns and Australian Capital Territory [2019] AATA 1631.
Furthermore, there being no evidence suggesting otherwise, I find that no significant event occurred before 1989 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gordon and Comcare (Compensation)

Details

AGLC: Gordon and Comcare (Compensation) [2020] AATA 352
Case: [2020] AATA 352
Decision Date: 27 February 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr Gordon against a decision by Comcare regarding his claim for workers' compensation for an acute shoulder injury. The applicant reported experiencing instant pain in his right shoulder after being hit during a rugby game on 10 May 2016. Subsequent medical examinations revealed significant tears in his subscapularis and supraspinatus tendons, along with other degenerative changes in his right shoulder.

The primary legal issues before the Deputy President were whether Mr Gordon had suffered an ailment or an aggravation of an ailment, and if so, whether his employment had contributed to that ailment to a significant degree, thereby establishing Comcare's liability under section 14 of the *Safety, Rehabilitation and Compensation Act 1988*. The court was required to determine the causal connection between Mr Gordon's employment and his shoulder condition, considering both the recent sporting incident and his history of workplace injuries.

The Deputy President applied a common-sense evaluation of the causal chain, drawing on principles from *Kooragang Cement Pty Ltd v Bates* and *Small v Commonwealth*. The medical evidence, particularly the report from Dr Vrancic, indicated that the radiological findings were consistent with an acute-on-chronic injury resulting from cumulative repetitive work activities as an AFP officer, rather than solely from the sporting incident. Dr Vrancic noted that previous workplace incidents in 2012 involving his right shoulder had settled but were significant enough to warrant incident reports. The Deputy President concluded that the work-related condition had contributed in a material sense to the applicant's injury.

Accordingly, the Deputy President set aside the decision under review and substituted an order that Comcare was liable to pay compensation to Mr Gordon for "rotator cuff (capsule) sprain (right)" pursuant to section 14 of the Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Although not agreed prior to the hearing I accept that on 10 May 2016 the applicant attended Matrix Physiotherapy and reported that, after suffering a hit during the second rugby game, he felt instant pain through the line between his pectoral and deltoid muscles.MEDICAL EVIDENCE On 17 May 2016 the applicant underwent an ultrasound of his right shoulder and upper arm. There was evidence of full thickness tear involving superior and mid subscapularis tendon were tenosynovitis of the long head of biceps tendon with medial subluxation. It also showed a full thickness focal anterior fibre tear involving the supraspinatus, SASD bursitis and AC joint bony hypertrophy. On the same date the applicant also underwent an x-ray to both AC joints and the right shoulder, which showed that the AC joint appeared degenerative and hypertrophic. The report is not clear as to which AC joint was being referred to but I assume it was a left joint noting the report (from Dr Diwaker) later states:No abnormal widening of the AC joint is seen when compared to the contralateral side but left AC joint is moderately degenerative (more than right). On 31 May 2016, the applicant underwent a CT and MR Arthrogram to his right shoulder. This showed: Near complete full thickness tear of the subscapularis tendon on a background tendinosis. Associated medial subluxation of the biceps tendon. … Partial thickness tears in the infraspinatus and supraspinatus tendons on a background of tendinosis. … Subacromial bursitis. … Multiple sites of labral tearing, [osteoarthritis] and synovitis in the glenohumeral joint. … Bicipital tendinosis and partial thickness tear.ReportsDr Vrancic Dr Vrancic, after seeing the applicant on 6 June 2016, provided a report dated the following day opining that the applicant had a significant right shoulder injury that would require reconstructive surgery later that year. She opined:The history, clinical findings and radiological findings (MRI) are consistent with an acute on chronic injury to his right shoulder, as result of cumulative repetitive manual work, most consistently in line with his activities as an AFP officer. She noted in a report dated 27 June 2016:While there was no one specific incident in the workplace that heralded the onset of his symptoms he did recall having previous multiple injuries and subsequently has notified me he has had two previous workplace incident report submitted both in 2012 for right shoulder injuries.The injuries were firstly being a low-speed fall off the trail bike in the workplace and another injury was a training incident where the shoulder was hyperextended during the “use of force” training. Both these injuries in 2012 settled to the point where Mr Gordon felt he did not need to escalate them to a Workers Compensation Claim but felt they were serious enough to lodge an incident report.…[The] findings on his MR arthrogram do not correlate with an acute sporting injury a few months ago. Rather they are radiological findings of chronic post traumatic changes consistent with repetitive manual incidents in the workplace. It was my evaluation of both his history, his clinical findings and his radiological findings that he had an acute on chronic rotator cuff tear with subsequent subluxation of his long head of biceps on a background of post traumatic degenerative changes in his glenohumeral joint.…It is likely with surgical intervention that Mr Gordon will regain above shoulder height range of motion and strength without pain. However, it will take 6-12 months to get the full benefit his surgery. However, there is a caveat attached to this, in that he already has some early post traumatic arthritis in his glenohumeral joint meaning his recovery may not be full due to degenerative changes that are already present in his shoulder. However, without surgical intervention these degenerative changes are likely to be accelerated leading to a rotator cuff arthropathy.

Decision

Reasons for decision

Also of assistance is the following at pp 463-464 of Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463: where President Kirby noted:The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase “results from”, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death “results from” a work injury. What is required is a commonsense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death “results from” the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honoré identify, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death “resulted from” the work injury which is impugned.CONCLUSION After considering the matters set out above, I prefer the approach set out in the passages in Small and Kooragang to the suggestion that any final link in the chain must be work related because I have found that the work related condition contributed in a material sense to the applicant’s injury. Accordingly the decision under review is set aside and, in substitution, the respondent is liable to pay compensation to the applicant for “rotator cuff (capsule) sprain (right)” pursuant to s 14 of the Act.

Ratio Decidendi

Legal Principle Established

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