Gyawali and Comcare (Compensation)

[2021] AATA 2582

Gyawali and Comcare (Compensation) [2021] AATA 2582 (29 July 2021)

Division:GENERAL DIVISION

File Number(s):     2020/2624          

Re:Ananta Gyawali

APPLICANT

AndComcare

RESPONDENT

DECISION

Tribunal:Member W Frost

Date:29 July 2021

Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

..............................[sgd]..............................

Member W Frost

Catchwords

WORKERS’ COMPENSATION – whether Applicant suffered from a 'disease' or 'injury' within the meaning of the Safety, Rehabilitation and Compensation Act 1988 - non-specific neck and shoulder pain (left) or aggravation – left shoulder impingement syndrome – cervical spondylosis – whether Respondent liable to pay compensation in respect of claimed condition – whether Applicant is a witness of credit – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 37, 43
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 36

Cases
Australian Postal Corporation v Bessey [2001] FCA 266.
Beezley v Repatriation Commission (2015) 150 ALD 11.
Canute v Comcare (2006) 226 CLR 535.
Comcare v Stefaniak [2020] FCA 560.
Commonwealth of Australia v Beattie [1981] 35 ALR 369.
Consolidated Edison Co v National Labour Relations Board [1938] USSC 176.
Dekker and Australian Postal Corporation [2018] AATA 682.
Gestmin SGPS S.A. v Credit Suisse (UK) Limited [2013] EWHC 3560.
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468.
Pearson and Prosegur Australia Pty Ltd [2021] AATA 312.
Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64.
Rodriguez v Telstra Corporation Ltd [2002] FCA 30.
The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30.
The Nominal Defendant v Cordin [2017] NSWCA 6.
Williamson and Comcare [2019] AATA 4774.
Whitlock and Comcare [2020] AATA 1353.

Zaveczky and Comcare [2020] AATA 4960.

REASONS FOR DECISION

Member W Frost

29 July 2021

INTRODUCTION

1. The Applicant, Mr Ananta Gyawali, applied to the Administrative Appeals Tribunal (Tribunal) for review of a decision by the Respondent, Comcare, affirming its determination denying liability to pay him compensation for ‘non-specific neck and shoulder pain (left) or aggravation thereof’ under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

2. Mr Gyawali claimed to have suffered his condition while sitting at a desk typing on a keyboard in front of a computer during his employment with Services Australia. Comcare declined liability under the SRC Act because it found that, while Mr Gyawali suffered from an ‘ailment’, it was not satisfied that it was significantly contributed to, to a significant degree, by his employment.

3. The Tribunal held a hearing of Mr Gyawali’s application using the video facility, Microsoft Teams (MS Teams). The Tribunal in this proceeding has considered all documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975[1] (AAT Act) and the parties’ Agreed Bundle of Documents for Hearing,[2] together with the submissions made at the hearing on their behalf. For the reasons that follow, the Tribunal affirms Comcare’s decision because Mr Gyawali’s application fails to meet the requirements of the SRC Act and Comcare is therefore not liable to pay him compensation.

   [1] Exhibit R1.

   [2] Exhibit R2.

   ISSUE

4. The issue for the Tribunal to decide in this proceeding is whether Mr Gyawali suffered an ‘injury’ pursuant to the SRC Act.

   BACKGROUND

5. Mr Gyawali is 41 years old.[3]

   [3] Exhibit R1, T3, page 7; Exhibit R2, page 68.

6. In 2012, Mr Gyawali commenced employment with the agency now known as Services Australia.[4] He is employed as a Technical Engineering Manager in Information and Communication Technology.[5]

   [4] Exhibit R1, T3, page 14.

   [5] Exhibit R2, page 68.

7. In August 2017, Dr Tuan Pham, Ear, Nose and Throat Surgeon, wrote that Mr Gyawali was suffering from left ear pain, which was ‘probably neuralgia’.[6] The pain was said to ‘sometimes radiates [sic] towards the left jaw and underneath the jaw and the ear’. An examination of Mr Gyawali’s neck was said to be ‘normal’. Dr Pham subsequently diagnosed Mr Gyawali as having ‘left tonsil stones’, after he gave a history that ‘left ear pain comes from left throat’.[7]

   [6] Exhibit R1, T4, page 16; T42, page 227.

   [7] Exhibit R1, T42, page 228.

8. On 25 April 2018, Mr Gyawali attended an Osteopath at the Canberra Body Clinic with ‘pain in his left shoulder and neck’.[8]

   [8] Exhibit R1, T7, page 20.

9. On 18 May 2018, an MRI of Mr Gyawali’s cervical spine showed ‘early uncovertebral and facet joint arthropathy resulting in multilevel, bilateral neuroforaminal exit narrowing though no appreciable nerve root impingement’.[9]

   [9] Exhibit R1, T8, pages 21-22.

10. In early August 2019, Mr Gyawali moved to another team at Services Australia, but did not have a sit/stand desk.[10] In mid-August 2019, Mr Gyawali ‘started noticing symptoms’ and requested a workplace adjustment in the form of a powered sit/stand desk.[11]

    [10] Exhibit R1, T27, page 122.

    [11] Exhibit R1, T9, pages 23-28; T27, page 122; Exhibit R2, page 72.

11. On 18 September 2019, Mr Gyawali made a report of an incident said to have occurred at work on 6 April 2018.[12] Most relevantly, the following responses were provided by Mr Gyawali:

    What Incident or Injury did you sustain? [Nature of Incident or Injury]:

    Felt sharp pain on my neck and left shoulders radiating to my arms & ear

    Part of body affected:

    Left shoulder, neck, left ear and left arms and left hand including fingers

    Describe how you sustained the Incident or Injury [Mechanism]:

    While working normally. Due to prolonged sitting – overwork my left hand, neck, shoulders and associated body parts.

    Describe object, substance or circumstance involved [Agency]:

    While working normally in a desk sitting on a chair using the mouse and keyboards. [errors in original]   

    [12] Exhibit R1, T11, page 32.

12. On 25 September 2019, Mr Gyawali attended Dr James Ayres, General Practitioner. The reason for the visit was recorded as ‘Chronic pain’.[13] Mr Gyawali was a new patient of Dr Ayres, who recorded an 18 month history of pain in the ‘left shoulder, neck, jaw and ear region’. The stressors discussed were ‘Overwhelmed at home. Feels workplace is unsupportive. Over-worked, under-appreciated’. Dr Ayres discussed ‘biopsychosocial model of pain’ and working on a routine for ‘sleep, meals and relaxation’, including ‘time away from work’ and also explained ‘the difficult nature of diagnosing chronic neck pain.’ Dr Ayres certified Mr Gyawali as unfit for work from that date until 25 October 2019.[14]

    [13] Exhibit R1, T44, page 230.

    [14] Exhibit R1, T13, page 36.

13. On 4 October 2019, Mr Gyawali again attended Dr Ayres who recorded that his pains ‘are less frequent and less severe’ and that it ‘goes away within 15 minutes of waking up’.[15] Mr Gyawali was reported to be apprehensive about returning to work.

    [15] Exhibit R1, T44, page 231.

14. On 10 October 2019, a powered sit/stand desk was installed for Mr Gyawali at work.[16]

    [16] Exhibit R1, T10, pages 29-31.

15. On 11 October 2019, Mr Gyawali attended Dr Shree Vaka, General Practitioner, regarding ‘Left shoulder pain’.[17] It was noted that he had seen another doctor approximately two weeks before who ‘advised time off work as neck pain he suspected was his sitting position at desk’. Dr Vaka also recorded that Mr Gyawali ‘used be sitting at a desk 14hrs everyday…since the pain started: he was given a standing desk – one year he used – pain decreased to 3/10 when he came back to sitting desk – pain increased to 7/10’.[18]

    [17] Exhibit R2, pages 416-418.

    [18] ibid., page 416.

16. On 15 October 2019, an X-ray and ultrasound was performed on Mr Gyawali’s left shoulder which showed a ‘small deep surface tear’ in the supraspinatus tendon.[19]

    [19] Exhibit R1, T45, pages 240 and 249.

17. On 17 October 2019, an MRI was performed on Mr Gyawali’s left shoulder which concluded that he had very mild biceps tenosynovitis, insertional tendinopathy of the subscapularis, tendinosis of the supraspinatus tendon with a 5 x 3 x 4 mm articular surface partial tear of the posterior fibres and subacromial bursitis.[20]

    [20] ibid., pages 240 and 250.

18. On 25 October 2019, Dr Vaka completed a Medical Certificate for Mr Gyawali and recorded that he started noticing symptoms around 4.00pm on 6 April 2018 with a ‘sharp pain in left side of neck, left shoulder, left arm – radiating to the arm and the ear’.[21] Dr Vaka indicated that Mr Gyawali was unfit for work from this date and would be reassessed on 8 November 2019.[22]   

    [21] Exhibit R1, T15, Pages 39-43.

    [22] ibid., page 42.

19. On 28 October 2019, Mr Gyawali submitted a Workers’ Compensation Claim with Comcare.[23] In that claim form, Mr Gyawali stated that he was claiming compensation for the following condition:[24]

    Pain in the neck, shoulder radiating to arm, mandible, ear and fingers – all in the left side leading up to sleepless and painful night. Medical diagnosis has identified the following: Subacromial bursitis. Very mild biceps tenosynovitis. Insertional tendinopathy of the subscapularis. Tendinosis of the supraspinatous tendon with a 5 x 3 x 4 mm articular surface partial tear of the posterior fibres.

    [23] Exhibit R1, T3, pages 7-15.

    [24] ibid., page 8.

20. Mr Gyawali further stated in that claim form that he first noticed his symptoms at 4.00pm on 6 April 2018, he first sought treatment on 25 April 2018 and that he was doing the following tasks when he was injured:[25]

    I was infront of computer monitors, sitting on a chair and was reading and typing (replying) an email.

    [25] ibid.

21. In response to the question in the claim form as to what happened and how Mr Gyawali was injured, he recorded the following:[26]

    Sharp pain in the left side of my neck, shoulder, left arm-radiating to the fingers and the left ear

    [26] ibid.

22. On 8 November 2019, Mr Gyawali’s supervisor, Mr Taranjot Singh, signed a statement he made in respect of Mr Gyawali’s workers’ compensation claim.[27] Mr Singh relevantly noted that:

    I became aware of the incident when Ananta approached me almost a year back stating that he feeling pain in shoulder and back. This was also reported to the line manager at the time…During that time, Ananta was working as the senior technical associate and had to work for many additional hours to fulfil requirements of work. We were short staffed with increasing work priorities and everyone had been putting additional hours to support the work. As part of normal work duties, he was supporting during after hours, in general extra hours, weekend activities, overnight shifts and after hours on-call support.

    …

    Ananta Gyawali requested for a standing desk through Essentials in August after switching to another team within the team…Director advised to report this as an injury in Essentials rather than a request for standing desk. This is the first time Ananta and myself knew that we had to submit the injury request. Ananta completed an on line injury report in ESS on 19 September 2019. After a few days, Ananta started to feel severe pain. In the interim, we discussed about alternates while the standing desk arrives. We found an alternate desk for temporary move where Ananta could work on but very shortly after that the doctors recommended him to take some time off as the pain was getting worse.

    …

    Following the recurrence of incident, Ananta commenced personal leave on 25 September 2019.

    [27] Exhibit R1, T18, pages 48-49.

23. Also on 8 November 2019, Dr Vaka indicated that Mr Gyawali was unfit for work and would be reassessed on 22 November 2019.[28]

    [28] Exhibit R1, T20, page 54.

24. On 15 November 2019, Mr Gyawali had an assessment of his capability to undertake a rehabilitation program pursuant to section 36 of the SRC Act.[29] The associated Rehabilitation Assessment Report relevantly noted that:[30]

    Mr Gyawali reported that he began to feel painful symptoms arise in the first week of April 2018 (06 April 2018). At this point, he noticed a sharp pain in the left side of his neck, left shoulder and left arm (radiating through the arm and up to the ear). Mr Gyawali reported that he continued to work due to the pressure (from the workplace) required to fulfil tasks and ongoing duties.

    [29] Exhibit R1, T39, pages 191-212.

    [30] ibid., page 193.

25. On 16 December 2019, Comcare made a determination declining Mr Gyawali’s claim for compensation for ‘non-specific neck and shoulder pain (left) or aggravation thereof’ under section 14 of the SRC Act.[31]

    [31] Exhibit R1, T30, pages 144-151.

26. On 17 January 2020, a report following a bone scan of Mr Gyawali’s cervical spine and thorax noted that he had ‘left-sided neck pain for two years, constant with straining’, but no history of an injury and concluded that the findings were ‘best explained by very mild/early arthritis’.[32]

    [32] Exhibit R2, page 333.

27. On 21 January 2020, Dr Vaka indicated that Mr Gyawali was unfit for work and would be reassessed on 31 January 2020 with a possible ‘graduated’ return on 3 February 2020.[33]

    [33] Exhibit R1, T31, page 156.

28. On 31 January 2020, Dr Vaka indicated that Mr Gyawali was fit for modified duties from 3 February 2020 working four hours a day on a Monday, Wednesday and Friday each week, ‘only once all the equipment has been provided’. He would be reassessed by Dr Vaka on 13 February 2020.[34]

    [34] Exhibit R1, T32, pages 160-161.

29. On 13 February 2020, Dr Vaka indicated that the ‘tentative date’ for Mr Gyawali to return to work was 17 February 2020, because he had still not received confirmation that all requested equipment had arrived.[35]

    [35] Exhibit R1, T33, pages 165-166.

30. On 17 February 2020, Mr Gyawali returned to work.[36]

    [36] Exhibit R2, pages 74-75.

31. On 11 March 2020, Dr Vaka indicated that Mr Gyawali was fit for modified duties at work, being four hours a day on a Monday, Wednesday and Friday each week.[37]

    [37] Exhibit R1, T34, page 171.

32. On 3 April 2020, Dr Vaka recorded that Mr Gyawali ‘is ready to trial 16hrs per week’ from 6 April 2020 and ‘all being well he will start doing 20hrs from 20/4/2020 until review on 1/5/2020’.[38] Mr Gyawali undertook these modified hours at work on the proposed dates.[39]

    [38] Exhibit R1, T35, page 177.

    [39] Exhibit R2, page 75.

33. On 1 May 2020, Dr Vaka recorded that Mr Gyawali ‘will continue staying at 20hrs from 01/05/2020 until review on 14/05/2020’ and that:[40]

    He has seen Dr Sindy Vrancic for a second opinion who concluded – cephalon-branchial syndrome and will need long term physiotherapy – His treating physiotherapist suggested, which I agree aswell that Ananta needs pain psychologist input to help move forward with intense physiotherapy-His ongoing work issues and stress from that is effecting any further progress in getting symptoms relief. The stress has started effecting his home life

    [40] Exhibit R1, T40, page 217.

34. On 4 May 2020, following a request by Mr Gyawali for reconsideration,[41] Comcare affirmed its determination from December 2019 declining liability to pay him compensation under section 14 of the SRC Act in respect of ‘non-specific neck and shoulder pain (left) or aggravation thereof’.[42]

    [41] Exhibit R1, T36, pages 179-182.

    [42] Exhibit R1, T41, pages 219-226.

35. On 5 May 2020, Mr Gyawali applied to the Tribunal for review of Comcare’s decision.[43]

    [43] Exhibit R1, T1, pages 1-5.

36. On 8 January 2021, Mr Gyawali was certified fit to work full-time hours from 11 January 2021, being 7.5 hours each workday. However, Mr Gyawali reported that his pain returned on 21 January 2021 ‘when I had extra workload, covering two colleagues’ roles while they were away’ and on 22 January 2021 his general practitioner certified him fit to work for 6.5 hours each workday.[44]

    [44] Exhibit R2, pages 76-77.

    LEGISLATION

37. Subsection 14(1) of the SRC Act provides:

    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.

38. ‘Injury’ is relevantly defined in subsection 5A(1) of the SRC Act to mean:

    (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;...

39. Section 5B of the SRC Act regarding the definition of ‘disease’ states that:

    (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.

40. Section 4 of the SRC Act defines ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’. It also defines ‘aggravation’ to include ‘acceleration or recurrence’.

    EVIDENCE

    Mr Gyawali

41. The Tribunal has considered the written statement made by Mr Gyawali in this proceeding dated 1 June 2021, which relevantly noted that:[45]

    [45] Exhibit R2, pages 68-82.

    In the lead up to 6 April 2018, I was working long hours in my employment as there were very high demands of jobs/services across multiple agencies…My working hours were often longer than 10 hours and on-calls requiring after hours and nightly support. I had to sit in a position for a prolonged period of time to support these activities.

    …

    On 6 April 2018 at around 4pm, I noticed a sharp pain in the left side of my neck and left arm radiating to my arm and ear. I was at my desk working on my computer using the mouse. I continued on working as there was no option for me to stop as I had to complete the tasks on hand. I returned on [sic] at 6pm that day.

    I did not report the pain to anyone on the day as it was Friday and my manager had already gone for the day. Initially I thought had sprained my neck and shoulder, which I thought would go away after some rests, and so did not report it to my manager.

    Over the weekend, the pain settled. I had never experienced that kind of pain prior 6 April 2018 and this was new to me. Over the weekend, I treated it as a sprain, and used over the counter creams and pain killers.

    …

    On Monday, 23 April 2018, I left work early to find a doctor’s appointment to get diagnosed for my neck/shoulder pain. I tried to book an appointment with my GP but he was not available immediately. I was able to book the Canberra Body Clinic to see Mr Matt Monus, an osteopath, on Wednesday, 25 April 2018, for my condition.

    …

    the Respondent noted at paragraph 8 of their Statement of Facts, Issues and Contentions:

    On 10 November 2015, the applicant attended Tuggeranong Square Medical Practice and reported being in a motor vehicle accident, which resulted in a jarring movement of his neck. He was not hit on the head, but developed pain over his upper thoracic region on the left side (summonsed documents, Tuggeranong Square Medical Practice).

    My response to that paragraph is that in March 2011, I had a motor vehicle accident which resulted in me breaking my rib and a thoracic injury. However, this injury got better in about 6 to 8 weeks. I had mentioned this to my GP as part of a general medical history question in 2015, and I confirm that I have fully recovered from this MVA injury on 9 March 2011 prior to my injury at work on 6 April 2018. I did not suffer any neck pain radiating into the left shoulder.

1. Mr Gyawali gave evidence at the hearing of the proceeding by video using MS Teams.

2. Counsel for Comcare asked Mr Gyawali whether, in August 2014, he attended his general practitioner due to being unwell for one month with pain over his ‘right upper back’.[46] He could not recall this attendance until taken to the contemporaneous medical records. Mr Gyawali was further asked whether on 14 November 2014 he had ‘tingling pain down right leg’ for five months.[47] He confirmed this was so and that he did not then have back pain. He accepted that he had an examination and was referred for a CT scan of his lumbar spine.[48] Mr Gyawali could not recall attending this scan and was taken to the subsequent report, which noted a ‘pain tingling sensation down the right leg’.[49] He could not recall receiving this report, but said his doctor ‘must have’ discussed the findings with him.

   [46] Exhibit R2, page 244.

   [47] ibid.

   [48] ibid., page 245.

   [49] ibid., page 267.

3. Mr Gyawali denied being in a motor vehicle accident on Sunday, 8 November 2015 and said he could not recall ‘this one’. When pressed, Mr Gyawali stated that he had not been in a motor vehicle accident in November 2015. Counsel referred Mr Gyawali to his statement, extracted above in these reasons, regarding a motor vehicle accident. He said his statement referred to him being involved in a motor vehicle accident, but not in November 2015. Counsel took Mr Gyawali to an entry in his general practitioner’s medical records for 10 November 2015 in which it notes a ‘MVA [motor vehicle accident] on Sunday’.[50] Mr Gyawali said ‘it is not correct’ and again denied being involved in a motor vehicle accident in November 2015. He said this was ‘not the motor vehicle accident I was involved in’. Counsel for Comcare took Mr Gyawali to the medical records, which stated that ‘hit a speed braker and car leaped up and dropped’. He again said he had not been involved in a motor vehicle accident in 2015. Counsel further referred to the record of ‘jarring movement of neck’, but Mr Gyawali said this was not the motor vehicle accident he was involved in and may have been referring to the 2011 accident. As a result, Counsel asked whether Mr Gyawali had waited some four years to attend his general practitioner regarding the car accident, to which he said that he could not recall this incident ‘at all’ and believed he had ‘never’ been involved in such an accident in 2015. When Counsel took Mr Gyawali to the details of the incident recorded by his general practitioner on 10 November 2015, he said that ‘whatever is listed here is matching with what I had encountered or experienced in 2011’. In this regard, Mr Gyawali said he ‘could’ have spoken to his general practitioner in November 2015 about a motor vehicle accident in 2011 and ‘she must have asked the question’. Mr Gyawali confirmed that in the 2011 accident he ‘hit a speed braker’, as set out in the medical records from 2015, but also said he did ‘not recall this incident’. He further told the Tribunal that he did not accept he had a jarring movement of his neck in a motor vehicle accident, regardless of the date it occurred and contrary to the medical records. He said this was ‘not true’; he was hit in the ribs. He was asked to confirm that he was not hit on the head as set out in the medical records and he again replied that he did not recall the incident.

   [50] ibid., page 247.

4. Mr Gyawali was further asked whether he developed pain over the upper back on the left side as noted in the records. He again said he did not recall the incident. Counsel asked whether Mr Gyawali could see in the medical records the full range of motion examination of his cervical spine performed by his general practitioner on 10 November 2015. Mr Gyawali again told the Tribunal he did not recall ‘this incident at all’, but said his general practitioner would have undertaken such an examination ‘based on the previous 2011 incident’ and could not ‘recall this happening at all’. Counsel asked whether Mr Gyawali was telling the Tribunal that his general practitioner had waited four years to record the 2011 motor vehicle accident on the clinical notes and he said, ‘I don’t know’. It was put to Mr Gyawali that he was evading the question. He denied doing so and said he was ‘trying to be very honest’. Counsel again asked Mr Gyawali about the delayed reporting and he replied that his general practitioner ‘must have recorded this as part of her examination and she you know asked my history and she might have examined me that way’. He acknowledged that he ‘might have some kind of issue during that time’ and his general practitioner ‘might have’ asked his history which he answered and she ‘might have checked me based on the previous accident, that’s what I honestly believe’. Counsel put to Mr Gyawali that this was all very equivocal and he said ‘that’s how you’re thinking’. Counsel further put to Mr Gyawali that he was not engaging with the question. He disagreed with this proposition and again said that he did not recall this incident, but firmly believed that in 2015 his general practitioner ‘might have’ asked him about the 2011 accident. He did acknowledge that he ‘might have’ attended his general practitioner in 2015 ‘for some issues’, but could not recall any accident after 2011. It was put to Mr Gyawali that this was inconsistent with his written statement in this proceeding that his injuries from the 2011 accident ‘got better in about 6 to 8 weeks’. He said this statement was ‘exactly correct’, but that in 2015 his general practitioner ‘might have asked me a question and I might have given the answer to her based on the 2011 incident or accident’. Mr Gyawali further stated that he ‘might have some issues’, but he did not recall having a motor vehicle accident in 2015. He did not, however, accept that by 2015 he had not fully recovered from any injuries from the 2011 motor vehicle accident. He said the reported ‘mild tender upper thoracic region over left side’ in 2015 was a ‘totally different issue to the 2011 motor vehicle accident. It was put to Mr Gyawali that this area of the body was almost the same area in issue in this proceeding. He said it was the ‘lower thoracic region’, but agreed that his claim related to the shoulder and neck.

5. Counsel for Comcare took Mr Gyawali to the recorded reason for the visit to his general practitioner on 10 November 2015, being ‘whiplash’, with some reported actions being analgesics, ‘heat pack’ and ‘physio’. He said they ‘could have been’, but did not recall the visit to his general practitioner. Counsel put to Mr Gyawali that his account was implausible. He said he did not remember visiting a physiotherapist for treatment, he must have gone to the doctor if there is a record, but the incident referred to in 2015 was the 2011 motor vehicle accident and he ‘might have’ gone for a different reason. Mr Gyawali said his general practitioner might have asked about his history and he must have provided this answer, although he again said he had no recollection of this attendance. Mr Gyawali acknowledged that doctors are legally obliged to record what their patients tell them, but did not accept that he had a motor vehicle accident in 2015 for which he saw his general practitioner and said he did not recall whether he had pain over the upper back on the left side requiring the doctor to examine his neck. He again disagreed that the symptoms he complained of to his general practitioner in 2015 are essentially the same as those complained of in relation to this application.

6. Mr Gyawali was taken to the record of his attendance on his general practitioner on 16 March 2018, to which he made reference in his written statement in this proceeding. He said he could not recall the date and then identified that his statement recorded the visit occurring one day earlier and told the Tribunal he wanted to correct the inaccuracy. The records note that Mr Gyawali was unwell for one week, had a ‘pressure sensation’ on the left side of his chest and left arm.[51] He agreed this was correct. The notes also record Mr Gyawali as having been ‘under stress at work’. An ECG showed ‘no acute changes’. This was undertaken because, Mr Gyawali asserted, the doctor had made the observation that the symptoms could be coming from his heart. It was put to Mr Gyawali that he had no other reason that he shared with the doctor for his symptoms. He said it was the doctor’s observation, ‘not mine’. The question was repeated for Mr Gyawali. He said ‘it was not heart related’. Counsel again put to him that the reason for the ECG was to ascertain whether the pressure sensation on the left side of his chest and left arm were heart-related. He said ‘that was the doctor’s check’. It was put to Mr Gyawali that he was still not answering the question. He said ‘this is the doctor’s observation’, to rule out any heart-related matters. It was further put to Mr Gyawali that this was because the possible heart-related issue was the only reason he and his doctor identified based on his shared medical history. He said ‘he was my doctor, he should have all of my history’. Counsel for Comcare put to Mr Gyawali that he did not complain of arm pain at this time. He could not recall. He also did not recall complaining of mandible or jaw pain or finger pain. Mr Gyawali said that he ‘might have’ mentioned work in addition to telling his doctor that he was under stress at work, but that it ‘might not’ have been recorded. Mr Gyawali told the Tribunal he was not saying that the doctor failed to record a relevant aspect of his history, but that not everything is recorded by the doctor. Mr Gyawali agreed that he was told to see a cardiologist if his symptoms returned.       

   [51] ibid., page 252.

7. On 17 May 2018, Mr Gyawali presented to his general practitioner with a headache.[52] He agreed and said that Endep had helped. It was put to Mr Gyawali that he told the doctor he had a ‘pain sensation left shoulder blade and throat’. He agreed and said this was ‘after the incident’ on 6 April 2018. Counsel said he had not asked Mr Gyawali about 6 April 2018; he agreed, but said he thought it was relevant. Mr Gyawali did not recall being referred for an MRI. He agreed that the medical records note the MRI of the cervical spine being due to ‘chronic headaches, altered sensation left side of body, left ear pain, vague neurological symptoms’.[53] However, Mr Gyawali disagreed with the proposition that he did not complain of neck and arm pain at this visit to the doctor. But he stated that he ‘may not have’ complained of mandible or jaw pain and could not recall complaining of finger pain. It was put to Mr Gyawali that he did not inform his general practitioner at his 17 May 2018 visit of his work duties on or about 6 April 2018 or otherwise. He told the Tribunal that ‘I did tell him about the incident’. Mr Gyawali was referred to the records that did not list any medical certificate for a work-related condition. He agreed, together with there being no reference being made to his employment in the medical records for 17 May 2018. However, Mr Gyawali again denied that this was because he had not mentioned work to his doctor. Despite this, Mr Gyawali agreed that he was at that time more focused on his left shoulder blade and throat.   

   [52] ibid., page 253.

   [53] ibid.

8. Counsel for Comcare referred to Mr Gyawali’s subsequent attendance at the general practitioner on 31 May 2018. He agreed that he told his doctor that he was ‘feeling better than before’ he last saw him on 17 and 20 May 2018.[54] It was put to Mr Gyawali that he complained of white spots on the left tonsil. He replied that this was ‘the observation of the doctor’ and agreed that he had visited due to throat pain. He told the Tribunal that he did not recall complaining of neck pain, arm pain, mandible or jaw pain or finger pain. Counsel put to Mr Gyawali that he did not mention work at this visit. Mr Gyawali said if the doctor had not asked him, he would not have said anything about work, including because he primarily went regarding throat pain. It was put to Mr Gyawali that if he was experiencing any pain to his neck, arm, jaw or finger he would have mentioned it to his doctor at that time. He said he had mentioned it in the first visit, but the doctor was investigating throat pain so he thought he was going in the right direction. Mr Gyawali subsequently said he had mentioned it and that was why he was referred to Dr Pham in relation to throat pain. It was further put to Mr Gyawali that when he presented to his doctor on 31 May 2018 he had no pain symptoms in relation to his neck, arm, jaw or finger or work issues. Mr Gyawali said he had ‘pain in throat, which is close to the neck’ so he thought ‘neck pain is coming from the throat’, which was what his doctor had advised him. Mr Gyawali agreed that his proposition was that on 31 May 2018 his doctor thought his neck pain was coming from his throat. He said that this is the neck pain which he contends is work-related. Counsel put to Mr Gyawali that he had in fact considered the pain came from his left tonsil. He said that is what was observed at the time. When Counsel said that is what Mr Gyawali told his doctor, rather than identifying his spine or the muscles in his neck, Mr Gyawali said ‘he observed me’. Counsel put to Mr Gyawali that the doctor would not look into his mouth unless he said he had throat pain. Mr Gyawali responded that ‘I told him I had a pain in my neck and throat area and he observed the throat’. Mr Gyawali denied that this was a sore throat, but said it was tonsilitis. Counsel for Comcare put to him that this was not a work-related neck condition and he said he could not answer the question and it was one for his general practitioner. When it was put to Mr Gyawali that he presented to his doctor with white spots on his left tonsil that he thought was a throat problem, rather than a neck problem related to work, he said he presented with ‘neck pain’ and he ‘also observed the throat’ and the doctor said it may be the neck that is aggravating the throat. Mr Gyawali denied he was trying to re-write history with his answer regarding the symptoms he had reported to his doctor.  

   [54] ibid., page 254.

9. Mr Gyawali attended the doctor on 23 November 2018 and agreed he was ‘feeling tired’ at that time.[55] When Mr Gyawali was asked whether he was experiencing palpitations, as reported in the medical records,[56] he replied on two occasions: ‘he examined me’, and on the third occasion denied he had done so. He did agree that he had complained of snoring and had his temperature taken.[57] Mr Gyawali also confirmed he complained of neck pain on this occasion.[58] The medical records state that he was told to have a sleep study and complained of ‘neck pain depending on certain position’.[59] When it was put to Mr Gyawali that his neck issues were the reason for his referral to a sleep study, he said he did not recall having that study done and following further questioning denied his neck pain was a result of his sleeping issues. He did agree that he told the doctor he had ‘no symptoms on exertion’.[60] It was put to Mr Gyawali that he did not tell his doctor at this appointment that he had pain caused by prolonged sitting. He said that he did. Mr Gyawali agreed, however, that he had not mentioned pain due to high job pressures or demands. He did not recall mentioning arm pain, mandible or jaw pain or finger pain.

   [55] Exhibit R1, page 255.

   [56] ibid.

   [57] ibid.

   [58] ibid.

   [59] ibid.

   [60] ibid.

10. On 12 March 2019, Mr Gyawali again attended his general practitioner. He accepted that he had ‘chest pain’ the day before this visit and that his symptoms were worse at night and he woke at 2am.[61] He recalled attended the Canberra Hospital on 11 March 2019 with ‘central/left sided chest pain with radiation to the left arm and neck’ and ‘left ear pain’.[62] He denied thinking at the time these were related to a heart condition. Counsel asked whether he agreed with the summary of his health in the Hospital report that Mr Gyawali ‘is normally well and has no cardiac risk factors’. He agreed this was correct ‘from a cardiac point of view’. He agreed he had not told the Hospital that the pain in his left arm, neck and ear were work-related. Mr Gyawali said at the time he was ‘not diagnosed’ with a work-related condition and ‘was just doing my job so didn’t think that way’. He was asked whether this changed in late 2019 after obtaining medical advice. Mr Gyawali said it was ‘the GP who has actually investigated and found’. He told the Tribunal he was relying on his doctor, rather than believing himself that he had a work-related condition.   

    [61] ibid.

    [62] ibid., page 153.

11. Mr Gyawali agreed he presented to his general practitioner on 27 June 2019, however considered reference in the medical records to ‘continuing R ear pain’ was in fact left ear pain.[63] He said he ‘could have’ mentioned neck pain but did not recall. He also did not recall mentioning any pain in the shoulder radiating to the arm, mandible or jaw pain or left ear. However, he maintained that the pain was in his left ear and not the right.

    [63] ibid., page 256.

12. On 25 September 2019, Mr Gyawali attended a new general practitioner. He agreed that he gave a history of 18 months of ‘pain in left shoulder, neck, jaw and ear region’.[64] Mr Gyawali did not accept the proposition that this was the first time he had given such a history and said he had ‘given this information’ to his former general practitioner ‘at various times’. He agreed that his complaints are related to not having a desk with sit/stand functionality. He agreed that before 6 April 2018 he had a normal desk, keyboard and mouse. It was put to Mr Gyawali that he did not mention anything to do with his employment on 6 April 2018 as being what he thought was the cause of his condition. He said he did not mention the date but said it was ‘about 18 months’. It was further put to Mr Gyawali that he did not say that his symptoms came on when he was sitting in front of a computer monitor on a chair reading and replying to an email. Mr Gyawali said ‘I did tell him’. Counsel took Mr Gyawali to the medical records which state that he felt ‘overwhelmed at home’ and ‘feels workplace is unsupportive. Over-worked, under-appreciated’.[65] He said he gave ‘a long history’ but his doctor had only recorded this element. Mr Gyawali said he did not specify a date, but told his doctor ‘this is because of the issue that happened that time’. He agreed this was sitting in front of a computer monitor on a chair reading and replying to an email, as described in his workers’ compensation claim submitted to Comcare in October 2019.   

    [64] ibid., page 306.

    [65] ibid.

13. On 4 October 2019, Mr Gyawali attended his general practitioner and agreed that he told him that his pains ‘are less frequent and less severe’ and ‘goes away within 15 minutes of waking up’.[66] He agreed that he ‘would like a sit/stand desk’.[67]

    [66] ibid.

    [67] ibid., page 307.

14. On 28 October 2019, Mr Gyawali made his workers’ compensation claim.[68] He agreed that he was honest and as accurate as possible when completing this claim form, including regarding the symptoms experienced and the tasks he was doing that led to the condition. He agreed that his claim form described him as sitting in front of a computer monitor on a chair reading and replying to an email on 6 April 2018. When it was put to Mr Gyawali that he did not refer to working long hours in the period leading up to 6 April 2018 as contributing to his condition, he said that he had submitted ‘a document in the internal portal saying that because of the overwork this issue has arisen’. He said there were ‘multiple fields in a form’ and in one he mentioned ‘the work’. Counsel took Mr Gyawali to his workers’ compensation claim form. It was again put to Mr Gyawali that he did not in that form say that being overworked led to his complaint. He agreed that he had not.

    [68] Exhibit R1, T3, pages 7-15.

1. He also agreed that the form stated he first noticed symptoms at 4pm on 6 April 2018 and that he first sought treatment on 25 April 2018. On this latter day, Mr Gyawali attended Mr Matt Monus, Osteopath, at the Canberra Body Clinic. He presented with ‘pain in his left shoulder and neck’, which had continued for two to three weeks.[69] Mr Gyawali said he saw Mr Monus twice in 2018, but not again.

   [69] Exhibit R1, T7, page 20.

2. On 6 December 2019, Mr Gyawali went to the Canberra Physiotherapy Centre.[70] He had not attended before this time. A history was given by Mr Gyawali, which relevantly noted for ‘April 2018’ a ‘long day – sitting on chair’.[71] It was recorded that he ‘noticed sharp pain’ in the left neck area. Mr Gyawali agreed that he only gave a history of sitting on a chair on a long day in April 2018. When asked whether he gave a history to the Canberra Physiotherapy Centre of him working long hours over many days in the lead up to 6 April 2018, Mr Gyawali said he had to ‘my previous GPs’ and later agreed that he had not done so at the physiotherapist. He agreed that ‘the history’ was that he had one long day sitting in a chair and experienced a sharp pain. Counsel for Comcare put to Mr Gyawali that this was not the history provided by him to the Tribunal of being required to work long hours over many days. Mr Gyawali agreed.    

   [70] Exhibit R2, page 374.

   [71] ibid.

3. On 8 April 2020, Mr Gyawali saw Dr Sindy Vrancic, Orthopaedic Surgeon.[72] He was referred to Dr Vrancic’s report that, in April 2018, ‘he had a sudden increase in his workplace hours and he reports working 18 h/day, at his desk’.[73] Mr Gyawali said that he had told Dr Vrancic that he worked up to 18 hours a day on ‘many occasions’ and that she had ‘interpreted’ that to be one day. Counsel put to Mr Gyawali that, having regard to all documents in this proceeding, the only mention of excessive work hours is made by him after he received a list of his work hours from his employer and not beforehand, or if he did it was in relation to one single, long day. Mr Gyawali told the Tribunal that he already had access to his work hours, and agreed this included on 6 April 2018 and when he made his compensation claim. It was then put to Mr Gyawali that if his work hours were the issue then he would have included this in his workers’ compensation claim form. Mr Gyawali agreed and said that he did not include this information in the form. However, Mr Gyawali did not accept the proposition that he never believed a history of long hours led to his complaint until after he had received such information from his employer.   

   [72] ibid., pages 38-39.

   [73] ibid., page 38.

4. On 17 December 2019, Mr Gyawali again attended the Canberra Physiotherapy Centre and reported ‘noticing a sharp pain in his left mid cervical region that radiated up to his left ear after reaching forward with his left arm while sitting on a chair at work in April 2018’.[74] Mr Gyawali accepted that this was the history he provided at the time. When he was asked whether he accepted that this was not a history of working excessively long hours in the lead up to April 2018, Mr Gyawali said ‘I have given that history as well’ and denied this was something he considered relevant after submitting his compensation claim. He confirmed to the Tribunal that he maintained that ‘one of the reasons’ for his complaint was excessively long hours.

   [74] Exhibit R2, page 34.

5. Counsel for Comcare put to Mr Gyawali that there was no sudden event on 6 April 2018 that led to his complaint. He said ‘I was typing and my arm slipped’, which he clarified to be his ‘elbow’. It was put to Mr Gyawali that this was not the history he provided in his witness statement in this proceeding. He said ‘not in its entirety, but that’s the fact’. It was also put to Mr Gyawali that he had not mentioned this in his workers’ compensation claim form. He said ‘I didn’t write exactly’ what had occurred. Mr Gyawali was taken to the report of Dr Ridhalgh dated 19 October 2020, in which he stated that Mr Gyawali ‘had his left elbow on the desk and it slipped off’.[75] It was put to Mr Gyawali that he had not mentioned this history anywhere or to anyone before he saw Dr Ridhalgh. Mr Gyawali said he told Dr Damiani in December 2019. When it was put by Counsel for Comcare that Dr Damiani did not record such an incident, Mr Gyawali said he thought he had ‘somewhere’. Counsel again put to Mr Gyawali that nowhere, prior to his appointment with Dr Ridhalgh in October 2020, did he claim compensation for an injury caused by his left elbow slipping off the desk at work. Mr Gyawali conceded that he had not. He denied that this claimed incident first ‘gained any real attention’ when he saw Dr Ridhalgh and again stated that Dr Damiani had written it ‘somewhere in his report’.

   [75] Exhibit R2, page 42.

6. Mr Gyawali was taken to his solicitors’ letter to Dr Ridhalgh dated 12 October 2020, in which it states that he ‘experienced sharp pain in the left side of his neck and left arm radiating to his arm and ear’ and was ‘sitting at his desk working on his computer using the mouse’.[76] Counsel noted that this correspondence mentioned nothing about Mr Gyawali’s elbow slipping off the desk at work. Mr Gyawali denied that this was a recent invention to support his claim for compensation. It was put to him that if this was a relevant part of his history for his claim he would have included it in his workers’ compensation claim form. He said that he thought he had hit the ‘funny bone’ of his elbow and was not material at the time. It was further put to Mr Gyawali that the question on the claim form was clear, being words to the effect of ‘what caused you condition’, and he did not say in that claim form that his left elbow slipped off the desk. He agreed. When it was put by Counsel that Mr Gyawali had not hit his elbow on anything he said ‘I just slipped my elbow’ into the desk. He told the Tribunal that his elbow hit the desk, it ‘slipped into the desk’. Counsel for Comcare referred Mr Gyawali to Dr Ridhalgh’s report that his elbow ‘slipped off’ the desk and was asked to accept this inconsistency. Mr Gyawali told the Tribunal ‘I don’t know how you say on the desk, off the desk, because it’s going off the edge of the desk, so that is how…but it slipped from the bulge of the desk’. Counsel put to Mr Gyawali that he did not mention anything about that alleged incident to any doctor in 2018. He agreed and again said he thought he had hit his ‘funny bone’. Mr Gyawali was asked whether he was ‘making it up’. He said ‘no, I’m not’ and did not accept that his story had changed over time.  

   [76] Exhibit R2, page 47.

7. Mr Gyawali was taken to the report of Dr Sabetghadam dated 28 November 2019, following his assessment on 21 November 2019.[77] He agreed that Dr Sabetghadam took a history from him. He agreed that he knew he had to tell Dr Sabetghadam what he considered led to his complaint, but said at that time he did not consider the claimed elbow incident was material. Dr Sabetghadam reported that Mr Gyawali was ‘sitting behind his desk in the office’ and ‘felt a sharp pain radiating to his left ear and the left side of neck and shoulder’.[78] Mr Gyawali agreed this was what he told the doctor. He also agreed that he did not tell Dr Sabetghadam about his elbow slipping off the desk and said ‘I didn’t know that it is relevant’. Counsel again asked Mr Gyawali whether he was trying to re-write history, which he again denied, but accepted that it ‘can be interpreted that way’.

   [77] Exhibit R1, T25, pages 105-117.

   [78] ibid., page 107.

8. Mr Gyawali was taken to his witness statement in this proceeding.[79] He mentions in that document the hours he was working in the lead up to 6 April 2018, and told the Tribunal he included some of these matters in his compensation claim.[80] However, Mr Gyawali agreed that he did not mention in his compensation claim the hours of work between 19 March 2018 and 5 April 2018.[81] Mr Gyawali was referred to the statement regarding the claimed incident on 6 April 2018 and acknowledged that he understood when preparing it that he had to provide the Tribunal with an accurate version of what occurred. Mr Gyawali agreed that he had not said anything about his left elbow slipping off a desk and said that ‘I just put exactly what I actually submitted’. He also agreed that he had not referred in his workers’ compensation claim form to his elbow slipping off the desk at work. Mr Gyawali further agreed that he had not mentioned in his claim form the work hours from 9 to 20 April 2018 or the claimed continuation of pain in his shoulder and neck over the following weekend.[82]

   [79] Exhibit R2, pages 68-82.

   [80] ibid., pages 68-69.

   [81] ibid., page 69.

   [82] ibid., page 70.

9. Mr Gyawali denied that Dr Ridhalgh had suggested that his elbow slipping off the desk was a possible cause of his condition and said that Dr Damiani informed him it was ‘also be a thing to consider’.

10. Mr Gyawali was referred to his written complaints regarding Dr Sabetghadam’s assessment of him. Mr Gyawali agreed that he was not medically qualified, had not previously had a medical examination for a workers’ compensation claim or experience with how they are conducted. However, Mr Gyawali said it was ‘not necessarily’ just his opinion, without having any medical training or experience, that Dr Sabetghadam was allegedly unprofessional.     

11. Mr Gyawali told the Tribunal that he did not know the meaning of the word ‘cherry picked’. He said it was not language that he would not normally use. He was referred to the word contained in his witness statement which said that Dr Damiani’s report ‘was cherry picked by the delegate in their determination’. Mr Gyawali said ‘it may be from my solicitor, not me’, and was not his language. Counsel referred to Mr Gyawali’s solicitors’ request for reconsideration of the delegate’s determination containing the phrase ‘cherry pick’.[83] Mr Gyawali agreed that he had signed his witness statement using words suggested to him by his solicitors.

    [83] Exhibit R1, T36, page 180.

12. On 2 December 2019, Mr Gyawali first saw Dr Damiani, Orthopaedic Surgeon, who reported that ‘he realised that there was a problem when he developed sharp pain on the left side of his neck going up into his ear and radiating also down his arm to the dorsum of his left smaller ring finger’.[84] Mr Gyawali agreed this was accurate. Dr Damiani continued: ‘Sometimes when he works late he will use only the right hand on the keyboard and will lean with the left elbow on the desk’. Mr Gyawali agreed this was the history he provided to the doctor. It was put to Mr Gyawali that he had not told Dr Damiani that his left arm had slipped off the desk. Mr Gyawali replied: ‘I told him’. It was further put to Mr Gyawali that he had not told Dr Damiani that his left arm had slipped into the desk. He again told the Tribunal that he had informed the doctor that his elbow slipped ‘off the desk or on the desk, yeah whatever’. It was put to Mr Gyawali that what he was saying was incorrect based on the documentation produced by Dr Damiani, none of which refer to his elbow slipping off or into the desk. He again said ‘I told him’, but ‘he may not have put that on the history’.   

    [84] Exhibit R2, page 318.

13. Mr Gyawali agreed that during his cross-examination he had disagreed with ‘some’ of the contemporaneous notes from his medical practitioners. However, he also agreed that he understood they must take accurate notes based on what he has told them. He also accepted that what his doctors had recorded was based on what he had told them at various points in time. Mr Gyawali however did not accept that his story had changed since April 2018 and said that he had been ‘very consistent’. It was put to Mr Gyawali that the notes of his treating doctors and various reports were not consistent with his version of events. He did not accept this proposition. He also did not accept that his workers’ compensation claim only referred to working one long day on 6 April 2018 and said ‘that was not the intention of the claim’. Counsel asked whether his story has evolved over time to link into the view that he had a work-related injury in 2018. Mr Gyawali said ‘it’s not my view that has evolved, it’s the view of the doctor, that’s what I’m relying on’. He told the Tribunal that he had not changed his story to meet the theory that his doctor has come up with from time to time. Mr Gyawali was asked whether he accepted that he is entirely convinced that he has a work-related condition and will not contemplate any alternative. He said, ‘based on the evidence provided to me, I firmly believe this is a work-related incident’. He was further asked whether he accepted it may be possible he has something other than a work-related condition and replied ‘I don’t think so. At the point of time when the injury happened I didn’t have any underlying neck and shoulder issue as such, on the left side’ and acknowledged this was his view based on the medical evidence.

14. Counsel for Comcare asked Mr Gyawali whether he accepted that on occasions during his evidence he did not directly answer the questions put to him. He said ‘I tried my best to answer all of the questions’. Mr Gyawali was further asked whether he accepted that on occasions he gave a response that was consistent with a work-related condition but was not directly answering the question put to him by Counsel. He said that he ‘consistently’ responded ‘that I think is correct to the best of my knowledge’. Mr Gyawali also told the Tribunal that ‘most of the times’ he understood what was being put to him during cross-examination and had asked Counsel to repeat himself were he did not understand anything, including due to any technological issues. He agreed that he had been able to understand and participate completely in giving evidence to the Tribunal.   

    Medical evidence

    Dr Maurizio Damiani – Orthopaedic Surgeon

15. Further to Dr Damiani’s report of 2 December 2019, which was referred to in cross-examination of Mr Gyawali set out above in these reasons, on 8 January 2020, Dr Damiani relevantly reported as follows:[85]

    his problems are clearly 100% work related from being overworked with repetitive strain injury to the shoulder and neck. This did not occur outside of the work place according to his history and there was no history of pre-existing shoulder or neck problems. I am not sure as to how the IME [Independent Medical Examiner] concluded that it was not related to work. 

    [85] Exhibit R2, page 37.

16. Dr Damiani was not called to give evidence at the hearing of this proceeding.

    Dr Sindy Vrancic – Orthopaedic Surgeon

17. The relevant section of Dr Vrancic’s report of 8 April 2020[86] is referred to above in these reasons in the section setting out the cross-examination of Mr Gyawali. Dr Vrancic was not called to give evidence at the hearing of this proceeding.

    [86] Exhibit R2, pages 38-39.

    Associate Professor John Fuller – Neurologist

18. While Associate Professor Fuller was not called by Mr Gyawali to give evidence at the hearing of this proceeding, he provided a report on 9 April 2020, which relevantly stated that:[87]

    His current problem relates to pain around the left shoulder and trapezius muscle region. He believes this began on 6^th April 2018, whilst working in his office he developed a sharp pain over the region of his left shoulder radiating into the triceps area…he has been diagnosed with a supraspinatus tear which has been suggested as the predominant source of his shoulder pain. I suspect that this is also causing referred pain into his trapezius muscle.

    [87] Exhibit R2, page 1054.

    Dr Mark Ridhalgh – Orthopaedic Surgeon

19. As previously referred to in these reasons, on 29 October 2020, Dr Ridhalgh provided a medical report regarding Mr Gyawali, which relevantly stated that he ‘had his left elbow on the desk and it slipped off. He had pain which radiated up the arm to the ear and the elbow has never really been the same.’[88] Dr Ridhalgh diagnosed Mr Gyawali with ‘Partial thickness tear of the supraspinatus tendon and subacromial bursitis left shoulder’ and that ‘his present injury and his pain is an aggravation of the past injury prior to the incident on 6 April 2018’. Dr Ridhalgh opined that Mr Gyawali’s employment is a significant contribution to his current condition and it is related to the posture and the nature of his work’. On 24 May 2021, after reviewing subsequent documentation filed in this proceeding, Dr Ridhalgh provided a supplementary medical report which confirmed his opinion had not changed and stated that ‘it is most unusual for a gentleman to have a partial thickness tear of the supraspinatus tendon before the age of 40 in the absence of significant trauma or injury’.[89] Dr Ridhalgh gave concurrent evidence at the hearing of this proceeding, which is discussed further below in these reasons.

    [88] Exhibit R2, pages 40-45. 

    [89] Exhibit R2, pages 58-60.

    Dr Mohamad Mourad – Orthopaedic Surgeon

20. On 14 May 2021, as requested by Comcare, Dr Mourad provided a report following his review of the documentary evidence regarding Mr Gyawali’s condition.[90] Dr Mourad diagnosed Mr Gyawali with pre-existing conditions of ‘Left shoulder impingement syndrome, cervical spondylosis’ and stated that these ‘are age-related degenerative underlying conditions’ and that neither condition was a recurrence, aggravation or acceleration of a pre-existing condition. Dr Mourad did not consider either condition was significantly contributed to by Mr Gyawali’s employment, based on the AMA Guides to the Evaluation of Disease and Injury Causation (AMA Guides). Dr Mourad noted that he agreed with the opinions of Dr Sabetghadam, Occupational Physician, which were also based on the AMA Guides.

    [90] Exhibit R2, pages 93-100.

    Concurrent evidence of Dr Ridhalgh and Dr Mourad

21. At the hearing of this proceeding, Dr Ridhalgh and Dr Mourad gave concurrent evidence and answered questions agreed by the parties[91] and put to them by the Tribunal, followed by cross-examination from Counsel. The doctors agreed that the diagnosis of Mr Gyawali’s conditions are cervical spondylosis causing his neck symptoms and left shoulder impingement syndrome due to ‘AC joint arthritis, rotator cuff tendinopathy and subacromial bursitis’.[92]

    [91] Exhibit A1.

    [92] Transcript of proceedings, 8 June 2021, pages 3-4.

22. In relation to whether a physiological change or disturbance of the normal physiological state was responsible for Mr Gyawali’s condition, Dr Ridhalgh stated that Mr Gyawali had ‘more advanced changes in his rotator cuff than I would have expected for a man of his age. And the changes in the cervical spine were also more advanced’ and that ‘the conditions of his employment I felt contributed to his symptoms.’[93] He further said that Mr Gyawali ‘does not have any history of sport or previous injury, motor vehicle accidents that would lead to premature cervical spondylosis.’[94] Dr Ridhalgh later agreed that age-related degenerative or constitutional conditions were also ‘significant’.[95] Dr Mourad told the Tribunal that Mr Gyawali has age-related degenerative and constitutional changes in his cervical spine and his rotator cuff however, based on the medical literature, these are ‘consistent with what one would expect in the fourth decade of his life.’[96] Dr Mourad gave evidence that the cervical spondylosis relates to ‘genetic factors’ and that the literature shows that ‘30 per cent of the population who are asymptomatic will actually have these age-related changes’.[97] Dr Ridhalgh told the Tribunal that it is not possible to state that an aggravation of spondylosis should resolve in ‘a few weeks’, whereas Dr Mourad considered that while ‘there’s no guarantee’, it ‘normally does’.[98] Later, Dr Mourad said that ‘you’ve got to have trauma or a physical event that’s actually capable of causing that organic change’.[99] For example, did this event cause a fracture, did this event cause an acceleration of the arthritis process that’s going on in the neck? There was no evidence of that’.[100] Dr Mourad considered that Mr Gyawali, rather than suffering ‘an acute traumatic tear’, had ‘wear and tear’, being a ‘degrading tendon or a degenerative tendon that’s just slowly wearing away’.[101]

    [93] ibid., page 4.

    [94] ibid., page 7.

    [95] ibid.

    [96] ibid., page 4.

    [97] ibid., page 7.

    [98] ibid., page 10.

    [99] ibid., page 11.

    [100] ibid.

    [101] ibid., page 13.

1. The evidence of the Occupational Physician, Dr Sabetghadam, supports a finding that Mr Gyawali’s conditions are the result of non-work related factors, such as his age, degeneration and genetic factors.

2. The Tribunal considers all three experts that gave evidence at the hearing of this proceeding assisted it in undertaking the requisite fact-finding process, having regard to their medical expertise. Where their opinions in relation to Mr Gyawali’s conditions were grounded in the medical literature, the Tribunal was referred to this commentary, specifically the AMA Guides regarding the evaluation of disease and injury causation. For the avoidance of doubt, the Tribunal does not accept that the evidence of any of the medical experts reflected any particular viewpoint other than that based on their training, experience and the medical literature. To this end, the evidence of both Dr Mourad and Dr Sabetghadam referred to, and was supported by, the AMA Guides. This evidence did not support Mr Gyawali’s claim regarding the cause of his conditions. Moreover, Dr Ridhalgh’s evidence, when asked to discount any slipping incident at work, largely agreed with that of his colleagues that sitting typing in front of a computer at work would not cause the claimed injury; this ‘was unlikely’. For completeness, the Tribunal gives little weight to the reports of Dr Damiani, Dr Vrancic and Associate Professor Fuller, because they were not called to give evidence at the hearing of this proceeding and their written opinions, which were based on histories provided to them by Mr Gyawali, could not be tested.  

3. In order to meet the test of a ‘disease’ under section 5B of the SRC Act, there must be an ‘ailment’ suffered by Mr Gyawali, or ‘an aggravation of such an ailment’, that was ‘contributed to, to a significant degree’, by his employment with Services Australia. For the above reasons, having regard to all the available evidence, the Tribunal is not satisfied, on the balance of probabilities, that either Mr Gyawali’s shoulder condition or his spondylosis (or an aggravation thereof) were contributed to, to the requisite degree, by his employment.

4. Relevantly under section 5A of the SRC Act, the Tribunal must be satisfied that Mr Gyawali suffered an ‘injury (other than a disease)’ or an ‘aggravation’ of such an injury that arose out of, or in the course of, his employment. The Tribunal is not so satisfied on the available evidence in relation to his shoulder condition or his spondylosis (or an aggravation thereof). The Tribunal finds that Mr Gyawali did not suffer an injury pursuant to section 5A of the SRC Act. The Tribunal accepts that he had an ailment of gradual onset that became symptomatic on 6 April 2018. This is concordant with an underlying degenerative condition, as the experts detailed to the Tribunal. Mr Gyawali suffered a spontaneous onset of pain which was concurrent with, but not caused by, his work. The evidence of the orthopaedic surgeons fails to establish that Mr Gyawali suffered an ‘injury (other than a disease)’ or an ‘aggravation’ thereof for the purposes of the SRC Act. Additionally, the evidence of the occupational physician, Dr Sabetghadam was that there was no ‘injury (other than a disease)’ or ‘aggravation’ with the requisite connection to his employment. While Mr Gyawali experienced increased symptoms at work, this is not sufficient in itself to establish that his employment has caused his conditions. Applying May and the line of subsequent authorities referred to in these reasons, there must be evidence of an ‘accompanying physiological change’; subjectively experienced symptoms are insufficient. The Tribunal is not satisfied, on the balance of probabilities, that Mr Gyawali suffered an ‘injury (other than a disease)’ or an aggravation thereof that arose out of, or in the course of, his employment pursuant to section 5A of the SRC Act.

5. On all of the available evidence, the Tribunal finds that Mr Gyawali did not suffer an ‘injury’ or ‘disease’ under the SRC Act. For these reasons, Mr Gyawali’s claim for compensation under the SRC Act is unsuccessful. Accordingly, Comcare is not liable to pay compensation to Mr Gyawali pursuant to section 14 of the SRC Act.

   DECISION

6. The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

....................................[sgd]....................................

Associate

Dated: 29 July 2021

Date(s) of hearing:	8-9 June 2021
Date final submissions received	18 February 2021
Counsel for Applicant:	Mr Alan Anforth
Solicitors for Applicant:	Ms Katherine Lee, David Healey Lawyers
Counsel for Respondent:	Mr Peter Woulfe
Solicitors for Respondent:	Ms Kate Watson, HBA Legal