Haile Engida and Linfox Australia Pty Ltd

[2014] AATA 912

[2014] AATA 912  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/1183, 2013/1184, 2013/2128
Re	Haile Engida
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

DECISION

Tribunal	John Handley, Senior Member
Date	9 December 2014
Place	Melbourne

The Tribunal:

(a)affirms the reviewable decision made on 25 February 2013 finding no present liability for permanent impairment compensation pursuant to s 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) with respect to the midback (rhomboid) strain and right shoulder injuries; and

(b)sets aside the reviewable decision made on 25 February 2013 in so far as:

(i)mild chronic adjustment disorder with anxious and depressed mood is substituted for the diagnosis of depression; and

(ii)remits the remainder of the decision pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 to the respondent to decide its liability pursuant to s 14 of the Act by way of reconsideration, in accordance with the reasons recorded; and

(iii)in the event of the respondent accepting liability for the condition of mild chronic adjustment disorder with anxious and depressed mood it is recommended that it determine its liability for payment of compensation pursuant to ss 24 and 27 of the Act.

(c)affirms the reviewable decision made on 24 April 2013 which found no present liability for payment of compensation pursuant to ss 16 and 19 of the Act with respect to the midback (rhomboid) strain.

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

John Handley, Senior Member

WORKERS’ COMPENSATION – applicant claimed compensation for left shoulder and upper back injuries with another employer in 2006; liability accepted under the Victorian Work Cover Scheme; report of three incidents at work in 2008 claiming injuries to his right shoulder and upper back; liability accepted; many attempts to return to work under rehabilitation schemes until 2010; did not succeed; claim for permanent impairment compensation made for injuries not previously claimed; liability therefore never determined; claimed injuries did not meet 10 percent threshold for whole person impairment; whether applicant suffered depression or mild chronic adjustment disorder as a consequence of ongoing pain for right should injury; claim for permanent impairment compensation for depression not determined by the respondent; the respondent’s liability is remitted for reconsideration with recommendations; other decisions affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988, sections 14, 16, 19, 24 and 27

Cases

Australian Postal Corporation v Oudyn (2003) 73 ALD 659

Lees v Comcare (1999) 56 ALD 84

Secondary Materials

Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)

REASONS FOR DECISION

John Handley, Senior Member

9 December 2014

1. Mr Engida, the applicant, contends he suffered injuries to his neck, upper, middle and lower back, right shoulder and depression arising out of his employment with the respondent, Linfox. At the hearing of the application, he appeared without legal or other representation. He was assisted throughout by an interpreter in the Tigrian language.

2. An enormous quantity of Tribunal documents (T-documents) were lodged by the respondent in these applications. In these reasons, page numbers apply to the T-documents in application 2013/2128.

3. He made three claims for compensation in 2008, as follows:

   (a)On 14 February 2008 (page 18) – right shoulder injury noted to be sustained on 14 February 2008.  The claim form at page 19 also records shoulder hurt approx 2 years ago.  Unsure if same shoulder.

   (b)On 24 July 2008 (page 33) – shoulder/upper back injury noted to be sustained on 1 July 2008.  At page 34 of the claim form it is also recorded previous identical injury reported in Feb. 08 cleared and now back again.

   (c)On 14 August 2008 (page 50) – upper back injury noted to be sustained on 13 August 2008.

4. Each of those claims were accepted by the respondent which resulted in payments of compensation for short periods of incapacity and modest amounts for the cost of treatment. The applicant returned to work after each period of incapacity (although later, he did work during some periods of modified duties).

5. On 10 May 2012, the applicant’s former solicitors lodged a claim for payment of lump sum compensation for permanent impairment and non-economic loss pursuant to ss 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (the Act). The application was supported by a form, partially completed by the applicant’s treating general practitioner, Doctor Minh Mai, who recorded the claimed conditions as  Supraspinatus Tendinopathy and Subacromial bursitis, L4-L5 Disc Bulging and Depression – Major (page 754).

6. There are three  applications for review before the Tribunal:

   (a)a reviewable decision made on 25 February 2013 (pages 803) affirming a determination made on 21 January 2013 (page 781) finding no present liability for payment of permanent impairment and non-economic loss compensation pursuant to ss 24 and 27 of the Act in respect of the right shoulder and midback (Rhomboid) strain (2013/1183).

   (b)a reviewable decision made on 25 February 2013 (pages 790) affirming a determination made on 23 January 2013 (page 785) which found no present liability for payment of compensation pursuant to s 14 of the Act in respect of the injury or disease of depression (2013/1184); and

   (c)a reviewable decision made on 24 April 2013 (page 862) affirming a determination made on 13 March 2013 (page 811) finding no present liability for payment of compensation, pursuant to ss 16 and 19 of the Act in respect of the mid back (Rhomboid) strain injury (2013/2128).

7. The applicant has not lodged a claim for compensation seeking the respondent’s liability pursuant to s 14 of the Act for the depression and lower back injury. In respect of the depression claimed in the applicant’s permanent impairment application, I presume the respondent’s decision to deny liability for depression pursuant to s 14 of the Act was made to cause the applicant to establish liability for it before he can recover, if at all, any compensation for permanent impairment. In respect of the claimed lower back injury (being the L4-L5 Disc Bulging), the respondent has not made a decision in relation to liability under s 14 or ss 24 and 27 of the Act.

   Employment and Claims History

8. On 24 April 2006 the applicant was employed by Westgate Logistics (Westgate).  On that day, he suffered injuries to his left shoulder and both knees.  A report of those injuries was completed by him and found in the documents received from Westgate (Exhibit R6).  The circumstances of the injuries are difficult to interpret from the report however it would appear that he fell in between a trailer and ramp when the trailer was moved forward at the employer’s premises.  A certificate from Doctor Emezie, dated 20 May 2006 recorded the injuries upper back/shoulder pain post workplace accident. The diagnosis of injury is recorded as back injury.  The treatment/medication is described as analgesia. Doctor Emezie certified incapacity between 26 and 27 April, between 8 and 11 May and 17 May. He also certified the applicant fit for light duties between 18 and 31 May 2006. 

9. On 6 August 2007 the applicant again reported injury when employed by Westgate.  A file received from Westgate contains a report of the injury which describes him suffering a strain in his lower back after lifting a can of dog food.  The report records he experienced sharp pain.  A certificate from Doctor Emezie dated 9 August 2007 records that the applicant can now resumme (sic) work since the initial pain issues has significantly reduced and is clinically able to continue his normal work on the 10/08/07 (Exhibit R7).

10. Westgate’s liability was subject to the Accident Compensation Act 1985 (Victoria) and processed under the Victorian Work Cover Compensation Scheme.

11. The respondent is an eligible corporation and holds a licence to accept liability and manage compensation claims under the Act on behalf of its employees. It acquired Westgate after the applicant suffered the above injuries. The applicant did not know the date of the acquisition but he essentially continued to undertake the same work, as a picker, which involved him manually lifting packaged goods from shelving and loading them, either onto pallets or into cages which were then lifted, using a lifting device known as a tugger, onto trucks which distributed those goods to various retail outlets.

12. The applicant suffered injury, to his right shoulder, when employed by the respondent on 14 February 2008.  On the same day, he completed a claim for workers’ compensation (pages 17-23). The applicant recorded that he was picking boxes of Coke.  He disclosed that two years earlier he had hurt a shoulder but was unsure which one.  In his evidence at the Tribunal hearing, the applicant said he was expected to pick 150 boxes per hour.  He said he could not recall the weight of each box of Coke. He said he had been picking and carrying a box in each hand.  An incident report completed by the applicant on 14 February 2008 (page 378) records that he was lifting boxes each containing 24x375 ml cans.

13. On 14 February 2008 Doctor Emezie provided the applicant with a certificate of incapacity for the period 15 to 21 February 2008 (page 185).  He recorded the injury as R shoulder pain – myalgia and referred him for an ultrasound of his right shoulder. The ultrasound report dated 15 February 2008 recorded that there was a moderate grade subacromial bursitis (page 63).  The respondent’s claims agent accepted liability for compensation arising out of the incident on 14 February 2008 until 29 February 2008 (page 386).

14. On 24 July 2008 the applicant completed a claim for workers’ compensation arising out of injuries to his shoulder/upper back having occurred on 1 July 2008.  In response to a question within the claim form of whether he had ever had a similar symptom or injury, he recorded previous identical injury reported in Feb 08 cleared and now back again (pages 32-38).  He described the events leading up to the claimed injury as 3 bulk (drink pick) order in a row shoulder started to cause pain and progressively got worse. He recorded that he had been lifting boxes weighing 16 kilograms.In this review, the applicant said he would have been holding and carrying a box in each hand after picking them from the shelves and lifting them onto a pallet or into a cage.

15. The employer’s part of the claim form records that the applicant returned to work on the same day (page 40) and he returned to his pre-injury working hours.  On 23 July 2008 Doctor Chin recorded R shoulder/upper back pain as the injury and he certified the applicant as fit for alternative duties (being no overhead work, lifting confined to five kilograms, no repetitive work affecting right shoulder and upper back or twisting or bending) between 23 and 30 July 2008.  Another certificate was issued by the same doctor dated 30 July 2008 (page 189) which records capacity for alternative duties between 30 July 2008 and 6 August 2008 with similar restrictions, except lifting was increased to 10 kilograms.  A certificate dated 6 August 2008 completed by Doctor Lee, where only the right shoulder injury was recorded, cleared the applicant to return to work without restrictions (page 191).

16. The respondent referred the applicant for assessment by Alexander Chan, an occupational physiotherapist pursuant to s 36(3) of the Act (page 109).  A report dated 24 December 2008 completed by Mr Chan(page 104-108) contains a history of the right shoulder injury suffered by the applicant on 1 July 2008 (and 13 August 2008 – refer later).  In relation to the episode of 1 July 2008, Mr Chan reported:

    Mr Engida reported that he injured his right shoulder on 1 July 2008.  He was picking up a box of soft drinks (reported to be >16 kg) and developed right upper trapezius pain.  He continued to work but the pain persisted after 15 – 20 minutes.  He reported the incident and was seen by the company doctor who reduced his lifting to <10 kg.  He was referred to a physiotherapist, through his workplace, with treatment consisting of soft tissue massage, which did not help his symptoms.  He continued with physiotherapy for approximately 2 months.  He was then referred to a physiotherapist recommended by the company doctor, with treatment consisting of massage, and rotator cuff strengthening, with no improvements.

17. On 25 August 2008, the claims agent determined that the respondent was liable to pay compensation pursuant to s 14 of the Act in respect of right shoulder/upper back pain sustained on 1 July 2008 up to and including 30 September 2008 (pages 405).

18. The third (and last) compensation claim made by the applicant was on 14 August 2008 when he reported an injury to his upper back on the previous day (pages 49-62).  The claim form records that he was picking boxes at chest height left pain in upper back.  The form also records (not in the applicant’s hand writing) that the boxes were not particularly heavy.

19. The applicant attended Doctor Ordonez on 14 August 2008.  He diagnosed the applicant as having a Midback (Rhomboid) strain.  He referred the applicant for physiotherapy and certified the applicant as fit to return to work subject to restrictions of not lifting above 10 kilograms, not working overhead and working a maximum of between four and six hours per day until 22 August 2008 (page 193).

20. A certificate for the period between 22 and 29 August 2008, if issued, is not in the T-documents, however Doctor Ordonez, in a report of 17 October 2008 (page 75), recorded that the applicant saw his colleague, Doctor Ong on 22 August 2008.

21. Doctor Ong reported to the respondent’s claims agent on 31 October 2008 that he saw the applicant on 22 August 2008 for a review of his right and left shoulder and upper and middle back injury (pages 76 – 79).  On examination, he reported that the applicant:

    …looks well.  His gait is normal.  He is able to sit and stand easily.  He demonstrates full shoulder movement and impingement testing was negative and no obvious bursitis.  There were no bony signs and his cervical and thoracic spine was normal on examination. He was however mildly tender in the rhomboid muscles of his back.  Neurovascularly there was no compromise.

22. The next certificate in the T-documents was issued to the applicant, by Doctor Ordonez on 1 September 2008. Doctor Ordonez recorded that the applicant was fit for modified duties between 29 August 2008 and 8 September 2008 (page 194).  It recorded restrictions of not lifting above five kilograms, no repetitive work involving the right shoulder, picking for two hours at a maximum but no restriction on the use of a forklift.  The injury then recorded was Right Rhomboid strain.  Similar (weekly) certificates were issued by Doctor Ordonez and Doctor Ong between 8 September 2008 and 20 October 2008 but varying the restriction on lifting to no greater than 10 kilograms on 15 September 2008 and to no greater than 15 kilograms on 22 September 2008.  On 14 October 2008 Doctor Ong certified that the applicant has been restricted to lifting no greater than seven and a half kilograms (page 209).  From 15 September 2008, neither Doctor Ordonez nor Doctor Ong imposed any restrictions on the duration of picking (pages 198 – 206).

23. The claims agent issued a determination on 25 August 2008 (pages 409 – 412) accepting liability for mid back (Rhomboid) strain sustained on 13 August 2008 and determined that the respondent was liable to pay compensation in respect of that injury up to and including 15 September 2008.

24. During his consultation with the applicant in December 2008, Mr Chan took a history from the applicant concerning the incident at work which occurred on 13 August 2008.  He reported the applicant:

    ….developed more pain whilst picking up a box at work.  He developed pain in his thoracic region and right medial scapular region.  He continued picking and finished the order.  During this time he continued to be seen by the physiotherapist.  He was also provided with some medications, but his symptoms deteriorated whilst he continued at work. 

    Since the injury, Mr Engida has been working on – off.

25. Mr Chan’s report records that considerable medical data was made available to him.  He recited the results of an ultrasound of the right shoulder, an x-ray of the thoracic spine and a CT scan of the lumbar and thoracic spine.  He had reports completed by Doctor Ho, Doctor Kostos and Doctor Al-Raheb.

26. Mr Chan concluded that the applicant had undertaken conservative treatment, with minimal improvement.  He thought the applicant suffered chronic pain in the presence of significant psychosocial factors.  He recommended a progressive functional exercise program aiming to have the applicant return to normal recreational and work activity.  It was his opinion that the applicant’s symptoms could be abolished by correcting his scapular position and strengthening his shoulder girdle, which although it may take between four and six months of rehabilitation, the applicant should then be independent of the program and be fit to undertake pre-injury duties (page 108). 

    The Period 15 September 2008 to 7 October 2010

27. The determination made on 25 August 2008 recorded that the decision to accept liability up to and including 15 September 2008 took account of all available medical evidence and other evidence.  Other than medical certificates that were being supplied by the applicant and some radiology reports, at 25 August 2008 there were no other medical, or medical-like documents supplied to the respondent.  If they were they not found within the T-documents.  The reason for deciding to accept liability up to 15 September 2008 is not apparent.  Perhaps it was expected, on the basis of certificates that had been received at 25 August 2008 that the applicant would be likely to work in approximately three weeks (on 15 September 2008) with minimal or no restrictions.

28. Events subsequently, as indicated by the material found within the T-documents, would have defeated that expectation.

29. Doctors Ong and Ordonez continued to provide certificates to the applicant (the last being on 27 October 2008) for varying periods up to and including 10 November 2008.  The certificates imposed a number of restrictions on lifting weights (varying between 5 and 15 kilograms), repetitive use of the right shoulder, the number of hours per day spent on picking and the total number of hours worked daily (pages 198 – 216; page 220).

30. Before Doctors Ong and Ordonez ceased issuing certificates, the applicant commenced attending other practitioners at the Millennium Medical Centre in Footscray and obtained certificates from Doctors Krishnan and Leslie.  They continued to issue certificates after 27 October 2008, together with Doctors Al-Raheb and Mai, who also practised at the same clinic (pages 213 – 343).

31. In the period of approximately 15 months between 29 October 2008 and 13 January 2010, a number of graduated return to work plans (RTW plan) were devised and initiated, unfortunately, without ongoing or lasting success.

32. On 27 October 2008 (page 65-72) a rehabilitation consultant conducted a workplace assessment in order to identify a timeframe for the applicant’s return to work and ascertain appropriate duties.  A report of the assessment dated 30 October 2008 contained a reference to a report completed by Doctor Ong on 28 October 2008 (not within the T-documents) who advised that he anticipated that the applicant will return to his pre-injury duties with re-education, training and caution.  A return to pre-injury duties is expected in 6 to 8 weeks, then a self-management program/routine (page 67).  The consultant concluded by making a number of recommendations to the respondent to facilitate the applicant’s return to work. The report enclosed a RTW plan dated 29 October 2008 devised by the consultant (pages 71 – 72).

1. On 24 November 2008 the claims agent wrote to the applicant recording that the report of the workplace assessment and a RTW plan outlining the work offered to the applicant upon his return had been received. On that basis, it was decided pursuant to s 19 (4)(d) of the Act that the applicant was capable of earning in suitable employment between 10 November 2008 and 9 January 2009, an amount being the equivalent of the salary that he would be paid in full-time suitable duties whilst he was undertaking a graduated return to pre-injury work. Accordingly, it was determined that the applicant did not have any entitlement to incapacity payments between those dates (pages 577 – 579).

2. The respondent engaged Doctor David Ho, an occupational health consultant, who examined the applicant on 12 November 2008 and provided a report on 19 November 2008 (pages 81 – 86).

3. Doctor Ho obtained a history of the work incidents and was advised by the applicant that he was then working, undertaking lighter duties but continuing to work as a picker of boxes ranging between 10 and 12 kilograms which the applicant said aggravated his upper back and shoulder pain.  He had attempted to drive the tugger but elevation of his arms had also aggravated his upper back and shoulder pain.  On the day prior to the consultation, Doctor Ho reported that the applicant had worked only for three hours because he had experienced strong pain.  Following examination, he was satisfied the applicant suffered a chronic soft tissue strain in his right shoulder blade and upper spine which was work-related.  He thought the applicant would benefit from anti-inflammatory medication and analgesics together with an exercise program in a gymnasium to restore right shoulder strength.  He also recommended physiotherapy.

4. Doctor Ho concluded the applicant was not then fit for normal unrestricted duties, rather he should observe restrictions of avoiding heavy lifting greater than seven and a half kilograms and not engaging in work involving pulling or pushing, repeated or strenuous use of his right arm above shoulder level and over reaching with his right arm.

5. On 25 November 2008 a rehabilitation manager of the respondent wrote to the applicant notifying him that a RTW plan dated 21 November 2008 amending the earlier RTW plan had been devised, recording specific work duties with references to the weights being lifted and regularity and duration of rest breaks commencing on 1 December 2008 with an intended duration of two months expiring on 2 February 2009 (pages 581 – 589). 

6. Doctor Leslie wrote to the respondent on 28 November 2008 (page 101), apparently being aware of the RTW plan dated 21 November 2008.  He reported that he had received a report from Mr Bruce Love, an orthopaedic surgeon, who recommended that the applicant’s physical injuries would improve only if there was a change in his employment.  Doctor Leslie was of the opinion that the RTW plan was likely to fail if the applicant returned as a picker.  He was satisfied that the applicant was motivated to return to work and if he was engaged in a position involving line (sic) marshalling, with the restrictions recorded in the plan, that his return to work was likely to be successful.

7. Doctor Al-Raheb, who is in practice with Doctor Leslie wrote a report to the claims agent (undated but a fax imprint records 11 December 2008 – pages 102-103).  He recorded that he was aware that Doctor Ho had examined the applicant and had notified the employer of restrictions upon the applicant’s return to work.  He recorded that the applicant believed that he was not able to undertake work as proposed by Doctor Ho because he gets pain whenever he swings his arms during walking and is not able to go to his light duties work on a regular basis due to his right shoulder pain.

8. Doctor Al-Raheb did not specifically report that the applicant should not return to work involving picking but did record that a good prognosis and likely recovery is expected with the removal of the stressors which caused the injury and appropriate ongoing management.

9. On 11 December 2008 a rehabilitation officer in the employ of the respondent wrote to the applicant notifying him that by reason of him not having attended the workplace since 24 November 2008, and therefore not having participated in the amended RTW plan, which was to commence on 1 December 2008, his rights to compensation pursuant to s 37(7) of the Act may be suspended.  He was otherwise invited, within 14 days, to commence the RTW plan or advise in writing of the reasons why he had refused or failed to do so (pages 594 – 595).

10. In his report dated 24 December 2008, Mr Chan, the occupational physiotherapist, recorded the history of the applicant’s injury and employment. Having regard to that history and a certificate from Doctor Al-Raheb dated 11 December 2008 (page 245), he recommended that it would be reasonable for the applicant to engage in light duties such as office work with restrictions to avoid picking and prolonged sitting when using a computer.    It was thought that his recommended restrictions would avoid the applicant having right shoulder pain which he was experiencing when swinging his arm whilst walking and prolonged sitting at the computer.  He anticipated that the applicant should, after undertaking light duties with the recommended restrictions for a period of three weeks, be able to commence the picking duties as imposed by the RTW plan dated 21 November 2008 which was intended to commence on 1 December 2008 (page 107).

11. The respondent apparently accepted Mr Chan’s recommendations because it devised an amended RTW plan dated 12 January 2009 commencing 15 January 2009 and expiring in March 2009 which included light office work and lane marshalling (pages 620 – 627).  The applicant’s return to work was graduated and recorded in a schedule appended to the RTW plan. It was indicated that the applicant would return to work for six hours per day for two days during the first week, thereafter six hours per day at five days per week for the next three weeks and progressively increasing to seven and later eight hours per day over five days per week with the aim of achieving full-time work and hours by the last week. 

12. The applicant attempted the RTW plan dated 12 January 2009 because Doctor Ho, who reassessed him on 11 February 2009 (pages 638 – 642), obtained a history of the applicant having undertaken work mostly on a full-time basis but with some time away because of the pain and reported effects of medication.  Indeed, the applicant had increased his work to eight hours per day and had been participating in a physiotherapy programme which had the beneficial effect of reducing his pain.  However the applicant had commenced reporting numbness in the fourth and fifth fingers of his left hand (page 639) and he was anxious about the intended resumption of light picking. 

13. Doctor Ho concluded that the applicant had better capability than he realises or claims.  He was also satisfied that the applicant was fit for full time work undertaking the lighter duties, he did not require… frequent and consecutive days of incapacity from work while on light duties and when he had completed his functional restoration program…he is able to resume light picking and gradually upgrades (sic) to pre-injury duties over one to two months.

14. On 5 February 2009, the claims agent, apparently being aware of the RTW plan dated 12 January 2009 that commenced on 15 January 2009, issued a determination pursuant to s 19 (4)(d) of the Act (pages 632 – 634) deeming the applicant capable of earning his normal weekly earnings for the hours specified in the schedule appended to that RTW plan (refer paragraph 43 above).

15. On 10 March 2009 another RTW plan was issued. I cannot locate a copy of it in the T-documents save for a reference to it in a determination from the claims agent on 4 May 2009 (pages 649 – 653). The determination records that regard was given to the opinions expressed by Mr Chan and Doctor Ho. The applicant was deemed capable of earning his normal weekly earnings in full-time suitable employment commencing on 23 March 2009 (page 651). Accordingly, it was decided that he had no entitlement to compensation for total incapacity.

16. Another determination pursuant to s 19 (4)(d) was made on 27 May 2009 (pages 655 – 657) because (another) RTW plan dated 25 May 2009 was devised for the period 25 May 2009 to 4 September 2009 (T 96 page 662 – 666). Subsequent to the previous RTW plan, the respondent had received medical reports from Dr Steven Jensen (pages 121 – 122 and pages 124 – 125), Doctor Leslie (page 118) and Doctor Mai ( page 120) who were together satisfied that the applicant did suffer pain and he remained in need of continuing rehabilitation. The RTW plan of 25 May 2009 reduced the days and hours the applicant was expected to work. The determination deemed the applicant capable of earning his normal weekly earnings during those hours.

17. It would appear that the applicant did not comply, at least in part, with the RTW plan immediately above. On 21 July 2009 an officer of the respondent wrote to the applicant advising him (pages 667 – 668) that he had not been attending work or not completing his shifts and therefore not following the RTW plan. He was (again) put on notice that he was at risk of his claim being suspended pursuant to s 37(7) of the Act. 

18. Another amended RTW plan dated 10 August 2009 was devised to commence from 27 July 2009 (following reports received from the applicant’s treating practitioners) (pages 682 – 691).  The schedule of hours and days proposed to be worked modified the preceding plan by allowing a longer period of reduced hours and days and gradually increasing to full-time hours and days over a six-month period.  Accordingly, the expectation was of the applicant working full-time (hours and days) from 7 December 2009.

19. On 13 August 2009 the claims agent issued another s 19 (4)(d) determination deeming the applicant capable of earning his normal weekly earnings by working during the hours and days proposed under the amended RTW plan issued on 10 August 2009 (pages 692 – 694).

20. The respondent arranged for the applicant to be examined by Doctor Ho on 16 December 2009 (pages 142 – 147) who obtained a history of the applicant not having worked since August 2009.  He was advised by the applicant that he was not consuming any medication, not having any physical therapy and believed that his condition was worsening.

21. In response to the report from Doctor Ho (above), the respondent issued an amended RTW plan dated 13 January 2010 effective from 11 January 2010.  During the period of two weeks from that date, he was expected to work full time for four days per week and one day for six hours. From 25 January 2010 he was expected to work full-time hours and days (pages 706-715).

22. Consistent with the previous RTW plans, relevant restrictions upon the work undertaken by the applicant continued to be recorded as avoiding lifting greater than one kilogram, together with avoiding activity involving pulling, pushing, repeated strenuous use  or over reaching of the right arm and avoiding prolonged static posture for greater than 30 minutes.  Significantly, the specific duties expected of the applicant and described as suitable in this plan are recorded (page 713) as:

    Other office duties       Inputting docket data onto operating system

    Involves handling paper and office supplies

    Seated/Stand as required

    Ergonomically adjusted office chair available

    Ergonomically adjusted workstation available

    Lane marshalling        As required

    Handling a clipboard and pen

    Walking along lanes checking stock on cages

    Checking of stock against orders on clipboard

    No manual handling required.

23. Following the issue of the above RTW plan, the claims agent issued another s 19 (4)(d) determination dated 15 January 2010 finding that the applicant was deemed able to earn his normal weekly earnings by working the days and hours contained in the schedule appended to the RTW plan.

24. On 24 June 2010 the claims agent wrote to the applicant (page 723 – 725) and notified him that it was requesting the provision, by him, by 29 July 2010, of:

    ·… full list of employment that the claimant has been engaged in from 13 August 2008 to the present date, inclusive of payslips with details of earnings from date of injury and details of the activities performed at these jobs;

    ·A copy of the clinical medical file from treating doctors, Dr N Ordenz (sic), general practitioner, Dr Mai General Practitioner and Dr Steven Jensen Musculoskeletal Pain Medicine Specialist.

25. On the following day, the claims agent wrote to the applicant (pages 726 – 729) and advised him that it had determined to issue a reconsideration, by its own motion, of previous determinations that it had issued and in effect decided that from 13 August 2008 his normal weekly earnings should be reassessed on the basis of having a capacity to have worked 44.29 hours per week.

26. On 18 August 2010 the claims agent wrote to the applicant (pages 736 – 737) and advised him, that by reason of him having failed to provide the documents requested in the letter dated 24 June 2010, his claim was suspended pursuant to s 58(3) of the Act until the information is provided.

27. On 7 October 2010, solicitors who had been acting for the applicant since 1 April 2010, wrote to the claims agent (page 738) providing copies of the clinical files of Doctors Ordonez, Mai and Jensen.  The letter does not record that the employment and earnings information also sought by the request of 24 June 2010 was supplied.

    The Applicant’s Evidence

28. The applicant was born in Ethiopia. He entered Australia as a refugee and has successfully applied for permanent residency.

29. After the episode at work on 13 August 2008, the applicant said he had pain in his upper back and right shoulder.  Relief from pain was not achieved by visiting a physiotherapist. His general practitioner Doctor Leslie prescribed painkilling medication to him and referred him to Mr Bruce Love, an orthopaedic surgeon. Mr Love arranged for an ultrasound and x-rays.  He was later referred to Doctor Jensen, who became aware that the applicant suffered neck pain and decided that physiotherapy should cease.

30. Between 2008 and 2010, the applicant said he had been undertaking light duties, during reduced hours at work as recommended by Doctor Jensen.  He said he was also told to rest when necessary because of pain. However, there was an occasion when Mr Harris, the applicant’s manager told him that he could not rest at work and he should go home.  The applicant said he has not worked since that day.  Thereafter he has been provided with medical certificates on a regular basis which he has continued to provide to the respondent and to Centrelink, who make regular payments to him of sickness allowance.

31. The applicant said his compensation payments stopped in August 2010.  When he enquired why the payments had ceased he was told that he had not responded to a letter which had been sent to him (refer paragraph 58 above).  The applicant said he notified the respondent that such a letter had not ever been received. However, payments were not restored.  Under cross-examination, he said that he had instructed his lawyers to challenge that decision and provide the documents requested but they had failed to act.

32. The applicant said that his physical injuries have not improved since 2008.  He said his situation is worse because he has suffered increasing pain which is always present. He said he is unable to sleep because of persisting pain and when brushing his teeth, being right-handed, he suffers increased pain in his shoulder.

33. He said he has also suffered stress because of continuing pain, which is worsened by activity, poor sleep (because of the presence of pain) and the refusal of the respondent to pay his pharmacy expenses (which deny him taking analgesics). He said he was also stressed by advice he was given by Mr Weaver, whom he identified as a bone specialist, who advised him that he might end up with serious bone issues.

34. The applicant said the continuing pain affects his thinking and all activities are ruined.  He said he was unable to have sexual relationships because to do so increases pain in his shoulder, neck and back.  He said social interaction in his Ethiopian community has ended because he has become withdrawn. 

35. Under cross-examination the applicant said he suffered the neck pain since and subsequent to the injury to his right shoulder.  He acknowledged that he had not made a claim for a neck injury but said he mentioned it in his claim for the right shoulder injury.  When he was asked whether he had ever suffered neck pain before the shoulder injury in February 2008 he said I don’t think so.

36. The clinical file of the Millennium Medical Centre (Exhibit R4) record him attending a doctor on 15 March 2007 with complaints of temporal headache and neck pain.  There were further attendances with complaints of neck pain on 29 December 2007 and two days later on 31 December 2007.  There were four attendances at the Millennium Medical Centre in February 2008, the first being on the day after the report of right shoulder injury.  All the attendances are in relation to a complaint of right shoulder injury and pain. The histories recorded on each attendance make no references to a neck injury or neck pain.

37. The clinical notes also contain references to complaints by the applicant of upper back pain on 27 April 2006 and 30 April 2006.  The history in relation to both of those attendances records pain to have arisen from an episode at work.  The attendance on 30 April 2006 specifically relates to post traumatic fall at workplace; pain aggravated thereafter.  Neither attendance records a complaint of left shoulder injury or pain.  That condition is first recorded in the clinical notes following a consultation on 9 May 2006.  The claim made upon Westgate for an injury to his left shoulder and both knees records the date of injury as 24 April 2006.

38. The applicant was also challenged concerning his assertion that he suffered stress as a consequence of the injuries he suffered when employed by the respondent.  He was asked to consider a number of references in the clinical notes, prior to 13 February 2008, where the histories recorded that he was suffering from stress.

39. On 14 December 2007 the clinical notes record that the applicant had ongoing stress issues, fmly/work-related assoc insomnia.  Another entry made on 29 December 2007, recorded the applicant having had an ongoing headache and neck pain for two weeks and assoc insomnia. It also recorded the applicant denied being depressed but willing to take stress leave.  On 9 January 2008, having investigated a complaint of left-sided chest pain and palpitations (pathology had not found any abnormality) the history records him having obvious ongoing stress issues at workplace and family. 

40. The applicant denied that he had been stressed by issues within the workplace but did acknowledge that there were issues within his family which were of concern to him.

41. An entry made on 19 January 2008 records have ongoing stress issues with workplace shift manager denied various sick cert given when he was sick. The applicant acknowledged that this was an accurate recording of one of many events in the workplace that were upsetting him.  He said he had suffered other illnesses which had caused him to have time away from work but he was denied sick leave because he had been told by his managers that he had not provided certificates (there are entries on 21 and 28 January 2008 of the applicant requesting duplicates of certificates that were previously provided to him from the treating practitioners).  The applicant said he had been suffering pain which was also a cause of his absence from work. Between 31 December 2007 and 19 January 2008 the applicant had attended the Millennium Medical Centre on four occasions with complaints of frontal headache, migraine headache, chest pain, headache and aching chest.

1. The applicant was also challenged concerning the incident at work on 14 February 2008 where he alleged an injury to his right shoulder.  The clinical notes record him attending on that day complaining of right shoulder pain since 2/7 (two days).  On examination his shoulder was found to be tender with a restricted range of movement.  Additionally there is an entry of nil recent trauma involved feels pain more on wt lifting.  An entry on the following day, despite a diagnosis of subacromial bursitis, records currently nil pain issues.  On 20 February 2008 the applicant complained of right shoulder pain with restricted range of movement. However by 22 February 2008 the doctor recorded, on review of his right shoulder, that pain has markedly improved can now start work.

2. The applicant was unable to explain a history taken by Mr Bruce Love, in a report of 30 December 2008 (pages 110-113) who recorded the onset of right shoulder girdle pain, three or four months previously, was associated with the use of a pallet truck at work.

   Medical Evidence

   Doctor David Fish

3. The respondent arranged for the applicant to be examined on a medico-legal basis by Doctor Fish who is a consultant occupational and environmental physician.  He examined the applicant on one occasion, on 26 September 2012 and provided a report dated 10 October 2012 (page 174 – 184) and a supplementary report dated 12 November 2013 (Exhibit R1).

4. Doctor Fish obtained a history from the applicant of having first suffered injury in 2007 when loading a pallet onto a truck.  He obtained a history that the applicant fell onto his right outstretched hand and suffered right shoulder pain.  On 1 July 2008 he reported that the applicant had been picking, at a frequent rate, of up to 150 cartons per hour of Coke when he felt increased right shoulder pain which became severe and he was unable to move the arm freely.

5. An examination of the applicant’s right shoulder revealed tenderness yet he could find no neurological abnormalities in the upper extremities with normal power, reflexes and sensation.  He did not find any clinically significant wasting on upper arms or forearms.  The applicant’s cervical spine motion was moderately restricted.  He found minimal infrascapular tenderness, an absence of lumbar tenderness and a full range of thoracolumbar motion.

6. Doctor Fish was aware of the CT examination of the applicant’s cervical spine of 17 April 2009 (page 123) which although demonstrating mild central canal stenosis at four levels between C2/3 and C5/6, he regarded those findings as demonstrating a minor abnormality, consistent with degenerative changes.  He was also aware of an MRI examination of 8 October 2009 (page 139) which reported the applicant had a normal cervical spine.  He said the findings of both those examinations were not inconsistent because the CT will demonstrate any bony abnormality but the MRI will give a superior demonstration of soft tissue and the central nervous system.

7. Doctor Fish was also aware that the applicant had an ultrasound assessment of his right shoulder on 16 June 2010 (page 148) which reported a right supraspinatus tendinopathy, a right subacromial bursitis without impingement and no right-sided rotator cuff tendon tear.  He said the condition of subacromial bursitis is over diagnosed and is more commonly reported than clinically found.  He was satisfied that the applicant had previously suffered right rotator cuff dysfunction with supraspinatus tendonitis, it had resolved and ongoing complaints and symptoms were a consequence of a chronic pain syndrome.  He did concede in his report that he was inclined to accept however that he still has problems with his right shoulder given the consistency of the findings in his right shoulder (page 178).

8. Doctor Fish also assessed whether the applicant had a whole person impairment (WPI) pursuant to the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1) (the Comcare Guide).  In relation to the right shoulder, applying table 9.11, he assessed WPI at 6 per cent.  Although the applicant has not made any claim for his neck, Doctor Fish reported he did not find any impairment of the applicant’s cervical spine.

9. In his report of 12 November 2013, Doctor Fish reviewed his previous findings and considered reports completed by Mr Kenneth Myers, who expressed opinions with respect to the applicant’s lumbar, thoracic and cervical spine.  Doctor Fish did not agree with those opinions but reported that he agreed with Mr Myers that the applicant does continue to have some continued right shoulder abnormal function, where a degree to which any tendonitis or bursitis persists is not determinable by clinical examination alone.

10. The applicant took issue with Doctor Fish in cross examination concerning his methodology in calculating the WPI.  It is sufficient to record at this stage, without disrespect to the applicant, that he misunderstood the method of calculation recorded in the Comcare Guide.  For example, table 9.11.1(a) records that if there is a measurement of flexion/extension of the right shoulder at 130° it will attract a finding of 2 per cent WPI.  The applicant contended that because table 9.11.1(a) records a finding of flexion of 180° not amounting to any WPI, the difference between a 180° flexion and a finding of 130° flexion amounts to a finding of 50 per cent WPI.

    Mr Kenneth Myers

11. Mr Myers is a general surgeon who examined the applicant at the request of his former solicitors on 18 June 2013.  He provided four reports dated 24 June 2013, 2 October 2013, 17 June 2014 and 30 June 2014 which were exhibited as A1 to A4 respectively.

12. In his first report, he recorded a history from the applicant that he suffered injuries to his right shoulder, low back and aggravation of an injury to his upper back. The dates recorded against the descriptions of the incidents leading to the injuries are incorrect. However, the descriptions are referrable to the two incidents that occurred whilst the applicant was employed by Westgate and the three incidents that occurred when in the employ of the respondent.  Mr Myers recorded that the applicant had told him that he had suffered neck pain from the time that he had injured his right shoulder. 

13. On examination, Mr Myers reaffirmed the opinions expressed in paragraph three of page six of his first report namely that the applicant had suffered rotator cuff tendonitis and subacromial bursitis of the right shoulder, a soft tissue and ligamentous strains in his neck and aggravation of pre-existing, previously asymptomatic degenerative intervertebral disc disease in the lumbar spine.

14. Mr Myers also recorded that there has probably been a new injury to the right shoulder and neck and aggravation of old pre-existing disability in the lumbar spine.  He also reported that any aggravation of pre-existing disease is likely to be permanent.

15. Mr Myers reaffirmed when questioned by the applicant, during the hearing, that in the absence of treatment, he regarded the aggravation to be permanent.  That response would appear to relate to a comment he made at paragraph seven on page six of the applicant needing referral to an orthopaedic surgeon to determine whether arthroscopic surgery of the right shoulder was warranted and the benefit the applicant would achieve by referral to a pain management clinic for structured rehabilitation in relation to the shoulder, neck and low back injuries.

16. In response to questions asked of him by the applicant’s former solicitors, Mr Myers reported that the applicant had no capacity for unrestricted manual or pre-injury employment. He said he could cope with sedentary work on a part-time basis, initially at 20 hours per week but having regard to his educational background and past work experience it would be impossible for him to obtain such employment.  He reported the applicant was likely to continue to suffer from pain and would be precluded or restricted from any activity involving prolonged sitting, standing, walking, driving, lifting, bending, climbing, squatting, kneeling, running and manual employment.

17. Under cross-examination, Mr Myers confirmed that his opinions were recorded after consulting with the applicant, without an interpreter, having observed a number of reports from radiologists and reliance upon the applicant’s history concerning the workplace events and the extent of his symptoms.  He agreed that there was no objective evidence of any cervical injury and he relied on the applicant’s history in forming his opinion of an aggravation of pre-existing degenerative disease at L4/5.

18. In his first report, Mr Myers assessed the right shoulder injury as causing an 11 per cent WPI.  In his reports of 2 October 2013 and 17 June 2014, which are both identical, he concluded that the applicant had suffered a 25 per cent WPI, being 8 per cent for the cervical spine, 8 per cent for the lumbar spine and 11 per cent for the right shoulder.

    Doctor Minh Mai

19. Doctor Mai has treated the applicant for many years, initially at the Millennium Medical Centre until April 2012 and subsequently in his private practice.  He first consulted with the applicant on 23 February 2009 and thereafter the applicant attended him on many occasions for treatment and provision of certificates of incapacity.

20. In response to questions from the applicant, Doctor Mai confirmed that he was aware that the applicant had previously complained of neck pain but presently, the only complaints of pain and consequent treatment are related to his right shoulder and back.

21. Doctor Mai said he was unable to express an opinion on whether the applicant’s injuries had progressed.  He said there had not been any reduction in the extent of pain about which the applicant had complained.  He was aware that the applicant had become depressed and he had written to the employer asking it to consider meeting the cost of analgesics and sleeping medication.  However he became aware that the employer had denied refunding the cost of that medication.  He also remembered that he had referred the applicant to specialist practitioners but the applicant was unable to consult with them because they had insisted on prepayment of their fees. He also referred the applicant to a physiotherapist with the intention of him entering into a program of therapy and rehabilitation however the applicant subsequently complained that he experienced increased pain.

22. When he reviewed the clinical notes of the Millennium Medical Centre during the hearing he agreed that the applicant had attended him on many occasions seeking a medical certificate.  He also noted, from the file, that there were many complaints by the applicant of suffering from stress and depression.  When asked by counsel for the respondent whether that illness was caused by the applicant’s legal battles, Doctor Mai said not completely but it was one of the reasons.

    Professor George Mendelson

23. Professor Mendelson is a consultant psychiatrist who also practices in pain management.  He provided a report dated 28 September 2012 to the respondent following his consultation with the applicant on 20 September 2012 (pages 156 – 173) and another dated 30 August 2013 (Exhibit R3) after he was asked to review a number of medical reports.

24. Professor Mendelson was not examined by counsel for the respondent.  In response to questions from the applicant, he agreed that a person who has pain and who has difficulty sleeping can suffer emotional and psychological problems.  However, having read the medical reports provided to him, he was satisfied that the pain experienced by the applicant was not attributable to any organic abnormality.  He was satisfied that the psychological problems suffered by the applicant were more likely an emotional response to the difficulties he was experiencing in his day-to-day life.

25. Professor Mendelson said that a mental disorder will be found if there are recognised symptoms of an emotional nature that adversely affect a person if associated with a psychological disturbance.  He said the ability of a person to interact in society will be affected.  However the words stress and anxiety are non-specific, are referrable to a person’s change in life situation and are usually associated with difficulty a person has with adapting.  Having assessed the applicant in September 2012 he was not satisfied that he suffered from any mental illness or disorder capable of a diagnosis.

26. The applicant had been referred to Doctor Nathan Serry, a consultant psychiatrist by his previous solicitors, who provided a report dated 25 September 2013 following a consultation on the same day (Exhibit A5) – five days after the applicant was assessed by Professor Mendelson.  Doctor Serry diagnosed the applicant as having a:

    (i)pain disorder associated with psychological factors and an initial general medical condition; and

    (ii)mild chronic adjustment disorder with anxious and depressed mood.

27. Professor Mendelson said that the applicant’s symptoms did not satisfy a diagnosis of mild chronic adjustment disorder.  In his opinion, the applicant suffered symptoms that would come within the label of being psychogenic in nature and the applicant probably has a chronic pain syndrome.  He said that description was appropriate because he was not satisfied the applicant had any organic physical injuries capable of producing pain.  Put another way, the pain experienced by the applicant could not be explained as organic in origin.

28. Professor Mendelson was satisfied that the applicant’s psychiatric condition satisfied the criteria against a five per cent WPI within table 5.1 of the Comcare Guide. 

    Doctor Nathan Serry

29. Doctor Serry was not called to give evidence in this review.  His report dated 25 September 2013 records that he was provided with copies of reports from Doctors Leslie, Mai and Ho.  He referred to the contents of the reports of Doctors Mai and Ho only.  He has not recorded, on the basis of the reports made available to him, whether the applicant’s pain, which he appears to accept as being experienced, is organic in origin.  It would appear that the diagnosis that he made was based entirely on the applicant’s symptoms, from all claimed injuries. Doctor Serry assessed the applicant as having a 10 per cent WPI under the Comcare Guide.

    Radiology evidence

30. The findings recorded below are all taken from reports found within the T-documents.

    Right Shoulder

31. An ultrasound of 15 February 2008 (page 63) reported the right supraspinatus, infraspinatus, subscapularis and biceps (sic) tendons were normal without tear or tendonopathy.  There was moderate thickening of the subacromial bursa and bunching with abduction.  The conclusion was reported as moderate grade subacromial bursitis.

32. An ultrasound of 16 June 2010 (page 148) reported underlying tendonopathy and right sub-acromial bursal thickening without impingement.  There was no tenderness of the acromioclavicular joint nor was there any rotator cuff tendon abnormality.

    Cervical Spine

33. An x-ray of the cervical spine of 17 April 2009 (page 123) reported minimal left lateral cervical tilting without destructive bony change or bony cervical rib or foraminal stenosis or soft tissue swelling.

34. A CT scan of the same day, at the same clinic, reported mild central canal stenosis at four levels between C2/3 and C5/6 secondary to a posterior disc bulge.  There was a finding of no significant posterior cervical cord displacement or flattening.  The radiologist concluded that there was no destructive bony change and no significant cervical mal-alignment.

35. An MRI of 8 October 2009 (page 139) reported normal vertebral body alignment and height; the intervertebral discs were normal in appearance without disc protrusion; there was no spinal canal stenosis or foraminal narrowing; there was no nerve root compression; the cervical spinal cord appeared normal and the paravertebral soft tissues were unremarkable.  The radiologist concluded the applicant had a normal cervical spine.

    Thoracic Spine

36. On 19 August 2008 (page 64) an x-ray of the applicant’s thoracic spine reported that the disc spaces were maintained, there was no evidence of any vertebral body compression and all pedicles appeared intact.  Another x-ray, about three months later on 6 November 2008 (page 80) reported a slight scoliosis concave to the left at T9/10 but otherwise reported similar findings to the previous x-ray.

37. A CT scan on 17 October 2008 (page 73) reported the spinal canal and intervertebral foramina were of satisfactory calibre throughout the whole of the thoracic spine.  There was no evidence of paravertebral mass lesion. The radiologist concluded there was no demonstrable abnormality.

    Lumbar Spine

38. An x-ray on 19 August 2008 (page 64) reported the disc spaces were maintained, all pedicles appeared intact, there was no evidence of pars interarticularis defects and the sacroiliac joints had a normal appearance.

39. A CT scan of 17 October 2008 (page 73) reported the spinal canal and the intervertebral foramina at L1/2, L2/3 and L3/4 were satisfactory however mild broadbased disc bulging was present at the latter level.  There was broadbased disc bulging present at L4/5 with the disc extending posterolaterally into the intervertebral foramina, there was mild to moderate degree of narrowing of the spinal canal and the right intervertebral foramen and mild narrowing of the left foramen.  Broadbased central disc bulging was present at L5/S1 with mild narrowing of the spinal canal and intervertebral foramina.  The radiologist concluded that broadbased disc bulging was present at several levels, particularly at L4/5.  Disc prolapse was not demonstrated.

    The Applicant’s Character

40. The applicant asked during the hearing that I hear evidence, in support of his character from two persons who hold positions in the Tigrian Community Association in Victoria (the Association), an organisation comprised of supporting persons from Ethiopia.

41. I informed the applicant that I did not need any reassurance that he was a person of integrity and high repute, no less obvious that throughout each of the three days of hearing and a full day taking submissions, more than 20 persons were present and in obvious support of him.

42. He persisted in his application and it occurred to me, being unfamiliar with Ethiopian culture, that to refuse his request may have been offensive.

43. I heard from Mr Hagos Redaa and Mr Getachew Seyoum. Both spoke of the applicant’s background as a refugee from Sudan. They said some of the persons supporting him and present at the hearing had been detained in the same refugee camp. They spoke of his active (described by Mr Seyoum as hyperactive) contribution to the Tigrian community in Melbourne by mentoring youth, participating in charitable fund raising and participating in meetings. Mr Redaa said he was a leader and was regarded as being famous by community members.

44. Mr Redaa and Mr Seyoum said the applicant withdrew from the Association after he suffered injuries at work. He was depressed, fatigued and in pain. Despite encouraging him to return and providing financial assistance to him to meet the cost of his medication, the applicant became despondent and frustrated. His offer to resign from the Association was refused. 

45. Seven written references were also tendered (Exhibit A6) in support of the applicant from persons holding positions in a number of Ethiopian and Somali societies, including two from persons interstate with whom the applicant had consulted and supported.

46. I note the applicant, in his capacity as the former public officer of the Association, consulted with and sought advice from a doctor at the Millennium Medical Centre on 12 February 2009 (Exhibit R4) about the prevalence of HIV in the Ethiopian community. The doctor recorded that issue had been discussed at a committee meeting and the applicant expressed interest in knowing how to help young people protect themselves from HIV. The entry in the notes supports the evidence of the witnesses and the authors of references of the preparedness of the applicant to serve his community.

    Conclusion and Reasons for Decision

1. The solicitors who made the permanent impairment application on behalf of the applicant had ceased to act for him prior to the commencement of the hearing.  The applicant appeared without legal representation. He was able to speak some English. However, he did need the assistance of an interpreter. I think he regarded the process of litigation suspiciously as an affront to his integrity and honesty.

2. I am satisfied the applicant did suffer some injuries in the workplace which caused temporary periods of incapacity. So was the respondent because the applicant was compensated on those occasions. I am also satisfied that he then experienced pain and discomfort.

3. I am also satisfied that the applicant believes he continues to experience pain and discomfort. However, for reasons which will emerge, I am satisfied, on the probabilities, excepting the right shoulder and a mild chronic adjustment disorder, there is no objective evidence of injury or disease having any continuing connection with his former employment. I will return to consideration of the applicant’s right shoulder later in these reasons.

4. The applicant made three compensation claims upon the respondent in February, July and August 2008.  Excepting the permanent impairment application, which was lodged much later on 14 May 2012 by his former solicitors, the three claims in 2008 were confined to reports of injury affecting his right shoulder and his upper back.

5. The first claim form reporting an injury to his right shoulder, disclosed a previous shoulder injury with a query whether the same shoulder was injured in previous employment with Westgate.

6. Documents lodged in respect of the prior compensation claim with Westgate (Exhibit R6) record a left shoulder injury on 24 April 2006.  There is no evidence of the applicant ever having suffered a prior right shoulder injury.  There is no evidence in this review of any incapacity or entitlement to compensation in respect of the left shoulder.  The left shoulder was never claimed within the employment of Linfox.

7. The Westgate compensation documents and associated medical certificates recorded applicant also suffering an upper back injury, being one of the injuries claimed as arising out of the employment with Linfox.

8. The applicant suffered injuries also when employed by Westgate on 6 August 2007 (Exhibit R7).  The report of injury records experiencing sharp pain in lower back when lifting a can of dog food (I will assume the applicant was lifting cartons of dog food whilst picking).  The claim for compensation completed by the applicant records him having suffered injury to his lower back.

9. In this review, the applicant agreed he had not ever made a claim upon the respondent for lumbar injury (although a claim for permanent impairment compensation in respect of that injury was made).

10. The applicant was vehement in his submission that the respondent, having acquired the business of Westgate, was responsible for the left shoulder injury that he suffered in his former employment.  Whilst that contention has no legal validity, it need not be determined, because he injured his left shoulder with Westgate and his right shoulder with Linfox.  He did not contend that the upper back and lower back injuries with Westgate were the responsibility of, or were aggravated within his employment with the respondent. 

11. The three reports of injury and claims for compensation made upon the respondent in 2008 were regarded, then, as relatively minor.  There were resultant short periods of total incapacity after which the applicant returned to his pre injury work, although there were relatively short periods of restrictions limiting the weight being lifted and loaded as part of his duties as a picker.

12. The applicant asserts that he has been totally incapacitated, since he last worked (refer later) as a result of the injuries he sustained during his employment with the respondent.  He also asserted that his symptoms have become worse since 2008. The applicant’s persisting complaints of pain resulted in him attending many doctors for treatment. 

13. On 22 August 2008, Doctor Ong reported that the applicant had a full range of movement in his shoulder, his cervical and thoracic spine did not demonstrate any abnormality but he had mild tenderness over his rhomboid muscles.  That consultation occurred eight days after the reported injury of upper back having been sustained on 14 August 2008.

14. In February 2009, Doctor Ho reported that the applicant had a better capability of working than he realised and he did not need to have frequent time away from work.  In December 2009 Doctor Ho reported that the applicant had not worked since August 2009; he had elected apparently on Dr Jensen’s advice (page 143) to cease taking medications; he was not engaged in any physical therapy but there was a complaint of his symptoms worsening.

15. The majority of the applicant’s treatment was undertaken at the Millennium Medical Centre, initially with Doctor Leslie and later by Doctor Mai (who subsequently left that practice and thereafter treated the applicant elsewhere).

16. Doctor Leslie referred the applicant to Doctor Jensen, a specialist in musculoskeletal pain medicine.  An examination of six reports written by Doctor Jensen to Doctor Leslie between 9 April 2009 and 14 October 2009 gives considerable insight into attempts, unfortunately unsuccessful, to determine an organic basis for the applicant’s continuing complaints of pain.

17. In his report of 9 April 2009 (page 121) Doctor Jensen noted that the applicant had full range of movement of the shoulders, an examination did not reveal any shoulder pathology and there was normal power and reflex in both upper limbs. However, it was noted that the applicant did have some cervical pain and tenderness.

18. In his subsequent reports (27 April 2009 – page 124; 31 July 2009 – page 132; 7 August 2009 – page 135) suggestions were made by Doctor Jensen to the employer and to Doctor Leslie for restrictions on the duties that the applicant would be capable of undertaking at work.  The reports clearly point to attempts to have the applicant eventually return to full time work.

19. In a report to Doctor Leslie on 11 September 2009 (page 137) Doctor Jensen noted that the applicant presented as a difficult rehabilitation prospect and who had psychosocial issues that are obvious in [his] presentation.  He noted that the applicant had been attending a psychologist (to whom Doctor Jensen had previously referred).  He also thought it was reasonable that the applicant undertake an MRI scan of his cervical spine. 

20. After the results of the MRI of 8 October 2009 were received, Doctor Jensen consulted with the applicant on 14 October 2009 (page 141).  Doctor Jensen reported that he agreed with the radiologist that the applicant had a normal cervical spine.  He reported that the only plausible physiological explanation for his persistent pain is that of central sensitisation with pain memory meaning the initial lesion (whatever that was) has healed.  He reported that he did not hold any belief that any specific intervention… is likely to help him. He attempted to reassure the applicant, based on the report of the MRI, that he has nothing to fear by pushing on through the pain during his domestic, social and work activities.  He recommended that the applicant participate in a pain management program.  He concluded that the applicant did not agree with his opinions and he had lost any rapport with him.

21. Between 15 September 2008 and 13 January 2010 a number of graduated RTW plans were devised by the respondent and or rehabilitation consultants that it engaged.  Those programs were devised, apparently, on the basis of medical certification the applicant provided from time to time from his treating doctors.

22. The last RTW plan dated 13 January 2010 (pages 707 – 715) modified an earlier RTW plan by varying the hours it was anticipated the applicant would be capable of undertaking.  It would not appear that the applicant pursued that RTW plan. Shortly thereafter the claims agent moved to request information from him pursuant to s 58 of the Act and consequent upon his failure to provide that information his entitlements under the Act were suspended.

23. Each RTW plan devised by the respondent was mainly unfulfilled by the applicant because of his persisting complaint of pain and discomfort. He did not undertake the work or the quantity of hours devised.  To its credit, the respondent modified a number of RTW plans and reviewed its expectation of the applicant by reducing either the hours or duties it expected he would be capable of undertaking. 

24. During the closing submissions, I asked the respondent’s representative whether it held any records identifying the date that the applicant last worked.  I was informed that an officer of the respondent had located a record of the applicant last working on 4 November 2009.  The applicant disputed that information and asserted that he last worked somewhere between May and August 2010.

25. I accept and find as a fact that the applicant did last work on 4 November 2009.  The RTW plan dated 13 January 2010 (pages 707 – 715) record that the previous RTW plan anticipated the applicant would return to modified duties on 4 November 2009.  Although a plan was devised in January 2010 it was a modification of the previous plan but there is nothing from the T-documents to indicate that the applicant did ever commence it.  Being satisfied therefore that the applicant last worked on 4 November 2009 it follows that at the last day of this review the applicant had not worked for more than five years.

26. The whole of the medical (including the radiology) evidence gives no support to the applicant being totally incapacitated.  The majority of it points to the applicant having had a capacity for work, initially with restrictions and modified hours shortly after August 2008.

27. The applicant’s persisting complaints of pain and discomfort, viewed objectively are not explained by the radiology evidence, nor am I satisfied that the applicant made any reasonable attempt to participate in rehabilitation and RTW plans.

28. Although the applicant may have had persisting discomfort in his right shoulder which may have caused a minimal diminution in his capacity, there was no evidence of him being prevented from engaging in suitable employment at his pre-injury salary. Equally, the applicant has failed to engage in many offers of suitable employment.

29. It would appear that the applicant, for some years prior to February 2008 when he made his first claim upon the respondent was enduring a period of stress and emotional discomfort unassociated with his employment.  It may be that he was overwhelmed and lacked motivation which might explain his reluctance to enter into or persist with the RTW plans. 

30. The clinical file of the Millennium Medical Centre (Exhibit R4) contains many entries of the applicant between 6 February 2006 and concluding on 28 January 2008, initially whilst employed with Westgate and later when employed with the respondent, of attending with complaints of upper back and left shoulder pain, epigastric pain, gastric reflux, headaches and migraine, insomnia, chest pain, dizziness and stress apparently associated with both family and work.  Many certificates of absence from the workplace were issued.  It would appear, from the entries made by his doctors, that he was also in some dispute with the respondent concerning his frequent absences from work.

31. The complaints above of headaches, migraine, insomnia, chest pain, dizziness and stress, suggest a prolonged period of emotional difficulty, perhaps associated with the recorded notes of family and work difficulty. All of those complaints occurred before the first reported injury with the respondent and suggest he may have had difficulty coping with and adjusting to further episodes of pain and discomfort, although, perhaps conversely, on 15 February 2008, the day after the applicant attended with a complaint of right shoulder pain following trauma at work two days previously (the first claim), the consulting Doctor recorded currently nil pain issues.

32. There are numerous factual and legal issues which must be decided in this application.  The complexity of those issues is unfortunate.  I suspect the applicant will draw little comfort from what follows.

33. The applicant (together with other injuries) claimed L4-L5 disc bulging in his application for permanent impairment compensation pursuant to s.24 of the SRC Act. Despite the description recorded of that alleged injury, by the applicant’s former solicitors, I understand it to be a claim for permanent impairment compensation assessed pursuant to table 9.17 (in relation to lumbar spine) of the Comcare Guide. However, the applicant has never made a claim upon the respondent seeking liability for that injury and the respondent has never made a decision accepting liability for it pursuant to s 14 of the Act. Until such a decision is made, the respondent has no liability to determine entitlement for compensation pursuant to s 24 of the Act (refer Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Lees & Comcare (1999) 56 ALD 84).

34. In the medical questionnaire, which is part of his claim for permanent impairment compensation, the applicant asserted a cervical (neck) injury arising out of his employment with the respondent (page 756).  The claim for the injuries for which permanent impairment compensation was sought does not record a claim for the neck injury.  The respondent therefore has never made a determination of any entitlement with respect to it.  It cannot be considered in this review.

35. The applicant did claim compensation for a right shoulder injury on 14 February 2008 and 24 July 2008. For the reasons given earlier, I am satisfied that he then injured his right shoulder. He also claimed permanent impairment compensation for that injury but the respondent denied liability to pay compensation pursuant to ss 24 and 27 of the Act.

36. Doctor Fish who assessed on a medico-legal basis on behalf of the respondent was satisfied the applicant did have continuing discomfort in his right shoulder and assessed a WPI at 6 per cent pursuant to table 9.11 of the Comcare Guide. However, entitlement to compensation pursuant to s 24 of the Act will be enlivened only if the degree of permanent impairment is 10 per cent or more.

37. Mr Myers assessed the applicant and found he had an impairment of 11 per cent. I regret that I found the evidence of Mr Myers, a general surgeon, to be confusing and difficult to comprehend. Unfortunately, Mr Myers understood that the applicant had injured his right shoulder in his prior employment with Westgate and relied on multiple events, with both employers, in reaching his conclusions. Doctor Fish has practised for many years in occupational medicine and has appropriate qualifications. I found his evidence to be sound and balanced. Accordingly, despite the continuing presence of right shoulder pain and discomfort, which I am satisfied has a continuing relationship with his former employment with the respondent, the finding of 6 per cent WPI, being below the minimum the 10 per cent threshold, does not entitle compensation pursuant to s 24 of the Act.

38. This review also involved consideration of an injury to the applicant’s thoracic spine.  The respondent’s liability for an injury in those terms has never been claimed and therefore it cannot be considered for permanent impairment compensation (Oudyn and Lees).  The radiology does not point to any demonstrable thoracic injury.  The claims for compensation of 24 July 2008 and 14 August 2008 record the injury of upper back.  Some of the medical reports refer to a midback (Rhomboid) strain.  Whether the injury of upper back intended to refer to the thoracic spine remains obscure but if it does, the absence of supporting radiology would also defeat any entitlement. If the injury is intended to refer to the applicant’s neck, for reasons given above in paragraph 153 there would also not be any entitlement for permanent impairment compensation. If it is an injury to the thoracic spine, the only support in terms of s 24 for it was from Dr Myers, whose evidence I have rejected.

39. The reviewable decision made on 24 April 2013, forming one of the three decisions under review in these proceedings, determined that the respondent had no present liability pursuant to section 16 and 19 of the Act for midback (rhomboid) strain. There is an absence of medical evidence supporting the presence of an ongoing rhomboid strain. I think it is also doubtful, that the rhomboid strain, being muscular in nature, could reasonably continue to exist, five years subsequent to the applicant last working.

40. The remaining issue is the claim for the psychiatric condition of depression made within the claim for permanent impairment compensation. On 25 February 2013, the respondent denied entitlement to permanent impairment compensation for the midback (rhomboid) strain and right shoulder injuries (page 803). In respect of the depression, the respondent denied liability pursuant to s 14 of the Act on the same day. It follows, having decided there was no liability pursuant to s 14 for this illness, there was no entitlement to permanent impairment compensation (Oudyn and Lees). However, the respondent did not make that finding in its decision concerning the impairment application. It made no finding of entitlement to permanent impairment compensation for depression in the decision concerning the impairment application.

41. A number of the doctors reported throughout the treatment of the applicant that he did demonstrate symptoms of depression and stress which they associated with his symptomatology.  Doctor Fish and Professor Mendelson said the applicant suffered a chronic pain syndrome.  Professor Mendelson was satisfied that was the appropriate diagnosis because he was not satisfied the applicant had any organic physical injury capable of producing pain.  He assessed a WPI for that condition at five per cent.  Doctor Serry, who was not called, reported that the applicant had a pain disorder and a mild chronic adjustment disorder with anxious and depressed mood.  He assessed a WPI at 10 per cent.

42. I acknowledge the respondent was denied the opportunity to examine Doctor Serry. However, on balance I think his conclusions deserve respect.  I am not satisfied that the opinions of Professor Mendelson should attract any weight.  It was his opinion that chronic pain syndrome was the appropriate diagnosis because the applicant did not have any injury capable of producing pain. Doctor Fish did find that the applicant had continuing problems in his right shoulder.  I prefer the evidence of Doctor Fish with respect to that injury and I am satisfied that he is well qualified to have made that finding.

43. However, it would appear, having reviewed Doctor Serry’s report (Exhibit A5) that his diagnosis of mild chronic adjustment disorder with anxious and depressed mood was made on the basis of continuing pain from a combination of neck, right shoulder, right shoulder blade, and low back injuries.  If not apparent from the above, I am satisfied that the only injury, viewed objectively, which is causing the applicant some discomfort, which may be found as having a continuing association with his employment and which is capable of being determined in this review, is the right shoulder only.  I am satisfied that the psychiatric condition suffered by the applicant is more appropriately described as mild chronic adjustment disorder with anxious and depressed mood and not depression. 

44. Neither psychiatrist in this review made a finding that the applicant did suffer depression.  However, I cannot find on the evidence that the condition of mild chronic adjustment disorder with anxious and depressed mood (the adjustment disorder), a diagnosis which I am satisfied should be made in substitution ,may be attributed only to ongoing symptoms in the applicant’s right shoulder.

1. I think consideration should be given to whether the ongoing right shoulder symptoms alone could be responsible for the adjustment disorder. It would be wrong to dismiss that potential finding in the absence of evidence. If the shoulder or the adjustment disorder, or both, constitute a disease, for the purposes of s 5B of the Act, consideration also needs to be given to whether the employment made a significant contribution. This is an issue I think deserves further attention and it will be remitted to the respondent for further determination. If the right shoulder pain is attributable to the adjustment disorder, and, subject to whether the employment made a significant contribution, it would be open to the respondent to find the applicant has a WPI in respect of the adjustment disorder, on the evidence of Dr Serry, pursuant to table 5.1 of the Guide.

2. A consequence of such a finding, if made, and subject to it being no less than 10 per cent WPI, would be the applicant having an entitlement to compensation for the adjustment disorder, in substitution for the claimed (but not decided) WPI disease of depression.  It follows that the respondent would also be obliged to set aside the decision denying liability to pay compensation for depression and accepting liability for the adjustment disorder.

   Decision

3. For all of the above reasons, the Tribunal:

   (a)affirms the reviewable decision made on 25 February 2013 finding no present liability for permanent impairment compensation pursuant to s 24 and 27 of the Act with respect to the midback (rhomboid) strain and right shoulder injuries; and

   (b)sets aside the reviewable decision made on 25 February 2013 in so far as:

   (i)mild chronic adjustment disorder with anxious and depressed mood is substituted for the diagnosis of depression; and

   (ii)remits the remainder of the decision pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 to the respondent to decide its liability pursuant to s 14 of the Act by way of reconsideration, in accordance with the reasons recorded above; and

   (iii)in the event of the respondent accepting liability for the condition of mild chronic adjustment disorder with anxious and depressed mood it is recommended that it determine its liability for payment of compensation pursuant to ss 24 and 27 of the Act.

   (c)affirms the reviewable decision made on 24 April 2013 which found no present liability for payment of compensation pursuant to ss 16 and 19 of the Act with respect to the midback (rhomboid) strain.

I certify that the preceding 167 (one hundred and sixty seven) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member.

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

Associate

Dated 9 December 2014

Date(s) of hearing	22 to 24 July 2014 and 11 November 2014
Applicant	In person
Counsel for the Respondent	Charles Clark
Solicitors for the Respondent	Moray & Agnew Lawyers