Gordon and Comcare (Compensation)
[2020] AATA 352
•27 February 2020
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.
............................................................
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 2007Cases
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 2383REASONS 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 so the matters discussed in Brennan and Comcare (1994) 50 FCR 555 at 562-563 do not need to be explored.
HISTORY
I found the applicant to be a frank and honest witness who was also accepted as being a witness of credit by the respondent. His evidence, upon which I rely, is consistent with the agreed facts set out below.
The following facts were agreed between the parties:
·On 27 August 1987 the applicant commenced recruit training with the AFP and obtained the following qualifications/duties:
oAugust 1987 – Use of Force (UOF) certification after which was a requirement for the applicant to undergo annual UOF recertification. Such training involves striking, handcuffing and takedown demonstrations in both the police and offender roles.
o1988 to 1996 – initial training as a police motorcyclist and then operational duties as a police officer
o1990 to 2008 – PTG, Special SOT and SRST courses and training. Training included shotgun firearm training, use of sledgehammer and ram type implements, additional UOF training in both the police and offender roles, arm over arm rope climbing and other operational requirements, including carrying heavy equipment for extended periods.
o1991 to 2016 – police dive team, which required dressing and assisting others to dress in and out of dive equipment, carrying heavy dive equipment both in and out of the water and lifting team members from the water over the whole of the rigid inflatable boats (RIBs).
o1996 to 2016 – operational safety trainer involved in the delivery of UOF training in which he was often required to act as the offender and have the UOF techniques demonstrated on him causing repetitive hyperextension and manipulation of the shoulders.
On 11 August 2012, an AFP Incident Report prepared by Mr Gordon reads:
Conducting trailbike patrols in bush area around Molonglo Subdivision. Whilst negotiating series of ruts on one of the trails in the above mentioned area i rode into a indent in the ground. Overbalanced and and fell to the ground. Put Right arm out to cushion fall and strained my right shoulder. Pain felt in shoulder joint.
Speed of M/Cycle at time of incident less than 10 km/hr [errors in original].
On 31 October 2012, an AFP Incident Report prepared by Mr Gordon states:
Whilst undergoing the non vehicle extraction scenario of my annual use of force recertification my shoulder was hyperextended against the B Pillar of the car door causing pain and lack of mobility to the right shoulder. During this phase I also suffered an injury to my right wrist causing pain when wrist is flexed or extended.
I find from the above facts, and the applicant's evidence referred to below, that the applicant was required to engage in repetitive manual work from 1987 including a significant amount of simulated combat type activities.
It was further agreed that:
·On 11 August 2012 the applicant suffered a strain to his right shoulder joint when conducting trial bike patrols during the course of his employment.
·On 31 October 2012 the applicant suffered a strain to his right shoulder when undergoing the annual recertification of UOF.
·On 30 April 2016 the applicant played a game of rugby union for Queanbeyan rugby union club and suffered a sore shoulder.
·On 7 May 2016 the applicant played another game of rugby union and suffered another shoulder injury after a tackle – it was disputed by the respondent that this was a similar injury to that suffered on 30 April 2016.
The applicant stated in his workers compensation claim that the event that caused injury was “participation in, and delivery of use of force training over an extended period and carrying heavy operational equipment on his shoulders”. The date of injury specified was 31 April 2016.
On 6 June 2016 the applicant attended Dr Sindy Vrancic, orthopaedic surgeon, who opined that the injury was workplace related.
On 3 August 2016, by way of determination, the respondent rejected liability, rejecting that the applicant's employment significantly contributed to the claimed condition.
On 17 August 2016 the applicant sought a reconsideration of the determination. The applicant stated that the opinion of Dr Vrancic, orthopaedic surgeon, was that the medical evidence clearly demonstrated the injury was a result of repetitive manual incidents in the workplace.
On 14 September 2016 the respondent issued the Reviewable Decision affirming the determination dated 3 August 2016.
The respondent, in affirming the Determination, noted:
Dr Vrancic submits that it is her evaluation on both the reported history, clinical findings and radiological findings that you 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’.
The respondent also contended:
There is no contemporaneous medical evidence on file to support that it has been factors in the workplace that have caused you to experience degenerative changes.
After assessing the available evidence, the respondent noted:
The evidence supports that as a result of participating in a rugby match you sustained an injury which resulted in impairment.
Accordingly, the respondent found the determination of 3 August 2016 was correct and an Application for Review of Decision dated 10 November 2016, was lodged with the Tribunal.
On 2 December 2016, at the respondent's request, in accepted claim 289443/13 for a left shoulder, the applicant was examined by Dr Robert Still for injuries to his left shoulder. Dr Still opined that the injury to the applicant's left shoulder was a result of the cumulative effect of repetitive micro trauma and ageing to the left shoulder for the demands of his work in the AFP.
On 16 May 2017 the applicant underwent surgery to repair his right shoulder injuries.
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.
Reports
Dr 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.
Dr Vrancic gave evidence consistent with the above reports and the Tribunal did not consider her opinions to be significantly impugned by cross examination.
In cross examination she agreed that the applicant’s shoulder showed osteoarthritic degenerative changes that would usually be associated with age-related constitutional factors “as well as other reasons for it being there”. In the applicant's case she noted that although there was always a constitutional component, it was far more advanced than she would expect based on age alone. She also noted there is not a direct correlation between arthritis and rotator cuff tears.
Professor Stubbs
Professor Stubbs provided a report dated 8 February 2017 and gave oral evidence. He found the applicant's injuries to be consistent with the employment history given and that his condition arose from his employment.
He reported that:
the MR arthrogram from Canberra Diagnostic Imaging reveals the presence of a complex full thickness tear in the right supraspinatus, with contrast material leaking through this and penetrating into a worn acromioclavicular joint. The long head of the biceps looked subluxed in the bicipital groove which strongly suggests that the rotator cuff tear involved the upper portions of the subscapularis as well as a supraspinatus.
Full-thickness rotator cuff tears progress, although do so unpredictably. The appearance of this tear was a series of past progressions rather than a single injury, so I am of the same view as Dr Vrancic, that the sporting injury of May 2016 was just one of a number of events, though on this occasion with the tear reaching a sufficient size that the shoulder remained painful. I would not think it any different from the prior reported falls or indeed any of the events that may occur when Mr Gordon works in his role as an armed combat instructor.
I was particularly impressed by the evidence of Professor Stubbs and note as follows:
·He is an Emeritus professor who left clinical practice eight years prior to the hearing after 40 years as a surgeon when he operated upon 500 people per year.
·He provides reports for applicants and respondents including Comcare for whom he had previously provided a report regarding the applicant for a previous injury in 2010.
In oral evidence he stated:
(a)The applicant had suffered a series of injuries to his rotator cuff over a period of time it and being a fit, young man he had shrugged off each injury as they arose. The biceps tendon had become unstable as a result of those previous injuries for which he provided a description as occurring when his shoulder was hyperextended to the extent that it felt pain.
(b)These events had been occurring to some degree since 1987.
(c)When hyperextension occurs to the extent that one feels pain, it suggests that muscles and tendons are being taken past elastic limits and one suffers a series of micro-traumas which applicant suffered throughout his employment.
(d)The tear involving rotator cuff looks like a series of small tears enlarged over periods of time and, if extended and extended again over a period of time until the subscapularis component is affected leading to the biceps tendon becoming unstable, the applicant would have ongoing problems.
(e)Acute tears have ragged edges which overtime smooth out and become smooth edges. There is some degenerative arthritis present in the joint which one would expect from males doing heavy physical work. Firing 10,000 rounds from a shotgun is a significant strain on the acromioclavicular joint between the clavicle and the shoulder which would contribute to the arthritis.
(f)The applicant's employment was a double-edged sword in that the active lifestyle and fitness would continue his functionality longer than an unfit person but such employment would make him more susceptible injury.
(g)He said that he and Dr Allen disagreed upon the diagnosis and on causation although there was general agreement on some matters.
(h)He disagrees with Dr Allen because if the degeneration had been caused by osteoarthritic processes, there should have been stiffness and movement in the lower end of the range; whereas Dr Allen couldn't find any stiffness in the applicant’s range of movement which was at the upper end of the range.
(i)He said reading the MRI scan was straightforward and it showed several partial tears that one day joined up. He disagreed that would have occurred in any event due to age or genetic factors.
(j)Tears in the rotator cuff can occur gradually over time, can be age-related, can be biomechanical but there is also an ongoing repair process.
(k)A fracture dislocation could lead to post-traumatic osteoarthritis but the applicant didn't have any such history.
(l)One would not expect treatment for micro traumas in that they get better quickly and they are more likely to happen in combat training situation rather what happened in the rugby field.
(m)The final tear was the accumulation of what occurred in the rugby game but the applicant's employment put him in that situation.
(n)The applicant’s injury was not a typical rugby injury. Active people are less likely to get rotator cuff injuries than others with changes in shoulders that come with age, but his was not a single injury tear; it was a result of multiple injuries.
(o)Even if the applicant chose not to play rugby, he would still have hyper-extended, possibly during an armed combat training or some other work-related activity.
(p)If he had not suffered the tears from his employment he would have not suffered the rugby injury. In other words but for the rugby match he would remain stable but he didn’t know for how long, a week, a month or 10 years.
(q)Contra the applicant’s injury which is in the tendon itself and was a progressive tears indicated by serious delamination is that started in the deep side of the tendon.
Furthermore Professor Stubbs opined that possibly the long head of the biceps is subluxing, and that development may be why the most recent injury has led to the symptoms, whereas previously the symptoms have settled. He thought the condition arose from the applicant’s employment and that he was of the same view as Dr Vrancic and that he thought the sports injury is just one of a number of events that have occurred, and really no different from anything that might occur in unarmed combat situations.
Dr Allen
Dr Allen, who had practiced as an orthopaedic surgeon for over 30 years, provided a report dated 23 March 2017 and also gave oral evidence.
He noted that the MRI scan of 31 May 2016 showed degenerative changes affecting the acromioclavicular joint, glenohumeral joint, labrum and rotator cuff as well as a tear of the rotator cuff.
He provided a diagnosis of degenerative change affecting the right shoulder involving the various components of the right shoulder including the rotator cuff and opined that those changes were in keeping with degenerative joint disease in the natural progression of that condition.
He diagnosed no specific plausible causal link between the applicant's current condition and any particular event in his past history of employment with the Australian Federal Police. He opined that simply putting the causation of his condition down to the rigours of his service is not sufficient to account for that condition.
Dr Allen also opined that the high level of physical fitness required in the applicant’s position as well as regular exercise, activity and general fitness were all factors which contributed to joint health rather than joint degeneration.
He also stated that as there had been a significant deterioration following the rugby game in May 2016 that it was likely that this particular episode had been an aggravation to his pre-existing degenerative disease. That may have provided further trauma to the rotator-cuff and its associated biceps tendon. He considered that the rugby games played by Mr Gordon in 2016 aggravated the underlying diagnosed condition of degenerative joint disease in the right shoulder leading to a permanent deterioration.
In a supplementary report dated 1 June 2017, Dr Allen, after reviewing imaging taken of the applicant’s shoulders, opined that the condition of the applicant's shoulders would likely have developed regardless of employment.
In his oral evidence, Dr Allen disagreed with Dr Stubbs’ characterisation of hyperextension involving taking the shoulder joint out of its usual range of elasticity. He noted that because the shoulder joint is entrusted as to protect itself, and this is over millions of years of evolution, the shoulder joints develop structures which protect them from being taken beyond their normal range by usual activity. It is only when we have external force applied that the normal restraints that joints are overcome. In general, in the vast majority of cases it's very hard for humans to take the joint beyond the safe zone.
At this stage I note that I do not consider the work activities outlined by the applicant qualify as usual activities and I find those activities capable of taking the joints beyond the safe zone. In other words I prefer the evidence Professor Stubbs and Dr Vrancic on this point.
When asked by the respondent’s counsel about Prof Stubbs’ opinion that the action of hyperextension of the shoulder joint could constitute a form of micro trauma to the rotator cuff, he opined that from the physiological and scientific basis he could not see how the argument could be valid, stating that although it being a nice argument that he thought it was a somewhat superficial argument.
He relied upon the structure of the shoulder joint having nerves that protect the joint from being taken beyond the normal range but once again I have difficulty envisaging situations where the joint cannot be taken beyond the normal range and hence I prefer the evidence of Professor Stubbs and Dr Vrancic.
The respondent's counsel also asked Dr Allen if, had the rugby event not occurred, it was likely that the applicant would have continued to be asymptomatic and not incapacitated in relation to his right shoulder condition for an unknown period of time. Dr Allen's response was that it was possible, which did not directly contradict the opinions of Professor Stubbs and Dr Vrancic.
Dr Still
Dr Still, a Consultant Sports and Exercise in Medicine Physician, provided a report dated 12 December 2016 but was not called to give evidence. That report related to the applicant’s desire to have his left shoulder assessed as he had surgery recommended for his right shoulder and had been aware of left shoulder discomfort.
He opined that the applicant suffered from the following left shoulder conditions:
oPartial-thickness articular- sided tear of supraspinatus tendon.
oPartial-thickness articular - sided tear of the upper half of subscapularis tendon.
oMinor sublaxation of the tendon of long head of biceps muscle.
oSubacromial bursitis.
oOsteoarthritis of the acromioclavicular joint.
He noted that tears of the supraspinatus and subscapularis tendons of the rotator cuff, with associated subluxation of the long head of biceps tendon and subacromial bursitis, tend to have a multifactorial aetiology including age-related degeneration, repetitive micro trauma and acute injury.
Dr Still opined that on the applicant’s stated history of left shoulder pain with overhead activities for a period of 10 years that it was likely that he initially developed degeneration in the rotator cuff tendons and osteoarthritis of the acromio-clavicular joint of the left shoulder ten years ago.
He noted the high physical demands of his work in the AFP was likely to cause repetitive microtrauma to the left rotator cuff tendons during his service resulting in initial degeneration and subsequent partial tearing.
He opined that the applicant's current condition it is not an aggravation, acceleration or occurrence of a pre-existing or underlying condition.
He noted that was impossible to be precise about the relative contributions of the applicant's employment and ageing but he considered that his employment was responsible for at least 50% the contribution to the claimed condition of his left shoulder.
I consider the similarities between the condition of the applicant’s right and left shoulders significant as it indicates a similar pre-existing conditions in each shoulder and I am satisfied that such condition was present in the right shoulder prior to the relevant rugby match.
Findings
As indicated during the hearing and submissions I preferred the evidence of Professor Stubbs and Dr Vrancic and, after reconsidering all the evidence and submissions, I remain of that view and also the view I then took as to the effect of the medical evidence for, inter alia, the following reasons:
(a)Professor Stubbs was unable to conclude that the degeneration of the applicant’s rotator cuff was caused by osteoarthritic processes, a conclusion based upon the absence of stiffness and movement in the lower end of the range of movement
(b)My preference for the evidence of Professor Stubbs and Dr Vrancic relating to hyperextension is discussed at paragraphs 44 and 55 above.
(c)Both Professor Stubbs and Dr Vrancic shared the opinion that the condition arose from the applicant’s employment, and also posited a clear theory of causation in that the applicant’s sports injury was similar to any other event that might occur in unarmed combat situations.
(d)Dr Allen gave evidence that it was possible if the rugby event had not occurred, it was possible that the applicant would have continued to be asymptomatic and not incapacitated from his right shoulder condition for an unknown period of time. This was not directly inconsistent with the opinions expressed by Dr Vrancic and Professor Stubbs.
(e)It is significant that the condition of the applicant’s right and left shoulders are closely similar, this fact strongly supports a finding that the applicant had similar pre-existing conditions in both shoulders and that such a condition was present in the right shoulder prior to the relevant rugby match.
I find that the applicant’s police work caused an ailment in both shoulders rendering, in particular, the right shoulder susceptible to the condition the subject of this application.
In other words I find that the employment contributed to the acceleration of the natural degenerative condition in his right shoulder by causing a series of micro tears which left it susceptible to having a more significant tear which would require surgery.
I also find that the rugby match induced the significant tear referred to above which would not have occurred but for the work-related acceleration of the degenerative condition in the applicant's right shoulder. In the words of Professor Stubbs, the rugby tackle was the ‘straw that broke the camel's back’.
I also find that prior to the rugby match the applicant’s' ailment was asymptomatic and only required surgery after the rugby incident. However, I also find that surgery would have been required upon the right shoulder at some stage because of the work-related ailment.
LEGISLATION
5A Definition of injury
(1) In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
5B Definition of disease
(1) In this Act:
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
As noted above I have found that the applicant suffered an ailment both before and after the rugby incident and hence a conjunction of s 5B(1)(a) and s 5A(1)(a) means that it is a disease for the purpose of s 14.
The respondent contended, inter alia, that, because the ailment was asymptomatic prior to the rugby incident, the provisions of s 14 operate to exclude the applicant's claim because there was no incapacity for work prior to the rugby match and no impairment.
Furthermore the respondent submitted that as the ailment was aggravated by the rugby match it became a novus actus interveniens type event so as to supplant or displace the employment as the effective and operative cause.
Counsel for the respondent submitted that prior to May 2016 there was no incapacity or impairment and as the applicant was asymptomatic, the only effective and operative cause of the incapacity that followed thereafter was the aggravation and the aggravation is what happened in the rugby match. Accordingly the incapacity is attributable to the aggravation and not what happened before that.
She referred to paragraph 22 of Dunkerley and Comcare [2014] AATA 381 where Member Webb stated:
The phrase ‘as a result of’ involves causation, but the operative element is not limited to “the immediate proximate cause of incapacity”. It refers to a relationship of cause and effect that is less direct than the term ‘caused by’ – the emphasis is on the ‘result’ or the effect, rather than on the proximity of cause and effect.[8] Where the sequence of events reveals more than one injury or other alleged causes of incapacity, a common sense assessment of the causal chain is required in order to determine whether the initial injury is an effective or operative cause of the incapacity such that compensation is payable [citations omitted].
The respondent's position being that a common sense approach suggests a break in the injury chain with the one the subject of this application being a separate and isolated event with a new cause.
The applicant submitted that a significant element in these proceedings was similar to the one in Kavas and Comcare [2011] AATA 935 where Member Webb noted at [13]:
….. was the claimed incapacity for work suffered as a result of Mr Kavas’ accepted injuries? The phrase “as a result of” is well understood in workers compensation law. It refers to a relationship of cause and effect in which emphasis is placed on effect, rather than the proximity of cause and effect. While pointed, the causal relationship ‘as a result of’ is not exclusive or conditioned by adjectival singularity - it permits the conjunctival co-existence of multiple contributory causes. Applying this construction, one must assess the operative or effective causes of the incapacity under claim. Clearly enough, in circumstances where multiple causes exist, the task of disentangling cause and effect may be difficult. While common sense should be applied, it is also necessary to consider the terms, scope and purposes of the applicable legislation, and to have regard to relevant expert evidence. [citations omitted]
The Senior Member went on to say:
41. If an injury is an “effective and operative” cause of incapacity despite supervening events or subsequent injuries, the resulting incapacity may truly be said to result from the injury. The words of du Parcq LJ in Rothwell v Caverswall Stone Co Ltd are often cited, authoritatively, in cases such as this:
“an existing incapacity ‘results from’ the original injury if it follows, and is caused by, that injury, and may properly be held so to result even if some supervening cause has aggravated the effects of the original injury and prolonged the period of incapacity. If, however, the existing incapacity ought fairly to be attributed to a new cause which has intervened and ought no longer to be attributed to the original injury, it may properly be held to result from the new cause and not from the original injury, even though but for the original injury, there would have been no incapacity.”
That passage was applied in Re Sadek and Commonwealth of Australia., where it was said:
Before the novus actus will be regarded as the only cause of the incapacity, it must be shown that the incapacity which would have resulted from the injury has ceased to exist and that the incapacity which does exist has resulted from the new cause as the sole cause.”
42. It is well established law that it is not necessary for an incapacity to result solely from an injury before compensation is payable – “it is sufficient if the injury contributes in a material sense to the incapacity...If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense”. Considering sections 5B, 14 and 19, I do not accept the proposition that a substantial contribution, or a contribution to a significant degree, is required when deciding whether claimed incapacity is ‘as a result of’ a compensable injury. But this point, presently, is not determinative.
In Small and Comcare [2017] AATA 2383 Member Webb also noted at [139] what I consider to be the current situation since the decision in Comcare and Martin [2016] HCA 43:
It is well settled law that the causal connection between an injury and subsequent incapacity or impairment described by the words ‘as a result of’ is not one of exclusivity should multiple causal factors be present – “it is sufficient if the injury contributes in a material sense to the incapacity...If a compensable injury constitutes one of a number of factors or events each of which combine as links in a chain of causation terminating in a single condition amounting to total incapacity, that incapacity will be fully compensable, the injury being a contributing cause in a material sense”. [citations omitted]
However, the respondent’s position would be that the final link in the chain of causation would have to be work related to satisfy s 14 and I have spent considerable time trying to resolve this issue. I believed, apparently mistakenly, that this issue was awaiting determination in a superior court since Martin and so I will deal with it as best I can. I also note that counsel were unable to locate any case law directly addressing this issue.
As noted above the applicant relied, inter alia, upon Kavas and Small and consider they assist the applicant’s case.
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.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President.
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Associate
Dated: 27 February 2020
Date(s) of hearing: 19-21 March 2018 Counsel for the applicant: K Pattenden Solicitors for the applicant: Slater & Gordon Lawyers Counsel for the respondent: K Katavic
Solicitors for the respondent: McInnes Wilson Lawyers
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