Hall and Australian Postal Corporation
[2012] AATA 868
•10 December 2012
[2012] AATA 868
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/4411
Re
Simon Hall
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Dr Haikal-Mukhtar, MemberDate 10 December 2012 Place Sydney Decision Summary
The decision under review is affirmed.
...................[SGD].....................................................
Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – Causation – Whether injury to left shoulder caused by medical treatment is an injury for which compensation is payable – Whether injury arose out of employment – Application of “but for” test – Whether injury to left shoulder was contributed to, to a significant degree, by employment – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988(Cth) ss 4(3), 5A(1), 5B
CASES
Hart v Comcare (2005) 145 FCR 29
Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1
March v E & MH Stramare Pty Ltd (1991) 171 CLR 5
Purvis v State of New South Wales (2003) 217 CLR 92
Roncevich v Repatriation Commission (2005) 222 CLR 115REASONS FOR DECISION
Senior Member A K Britton
Dr Haikal-Mukhtar, Member
Mr Simon Hall commenced work as a delivery officer with Australia Post in 2001. Over the course of his employment he has sustained injuries to both shoulders for which Australia Post has accepted liability.
In July 2011, an MRI of Mr Hall’s left shoulder revealed a labral tear, which was surgically repaired a few months later. Mr Hall made a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for the costs incurred for that surgery. That claim was refused. Mr Hall challenges that decision and seeks review by the Administrative Appeals Tribunal.
There is no argument that the surgery was reasonably necessary. The issue between the parties is whether Australia Post is liable for the cost of surgery. The answer to this question turns on whether Mr Hall sustained an “injury” within the meaning of the Act.
Background
Australia Post has accepted liability for one injury involving Mr Hall’s left shoulder and a number involving his right shoulder. There is no issue that until June 2011 it was mainly his right shoulder that troubled Mr Hall.
Left shoulder injury
In September 2004 Mr Hall injured his left shoulder while lifting boxes from trolleys. The resultant pathology has been variously described — muscular strain, shoulder impingement and biceps tendonitis. Following that injury, Mr Hall was off work for a day and taken off delivery duties for a couple of weeks. He was certified fit for work with restrictions until 17 November 2004.
Right shoulder injuries
Of the injuries involving Mr Hall’s right shoulder the one sustained in September 2005 was apparently the most serious. It was caused by Mr Hall being thrown from his motorbike into a garage door. An MRI revealed among other things a SLAP (superior labral anterior-posterior) lesion. The labrum is the cuff of cartilage within the shoulder.
Between September 2005 and August 2007, Mr Hall largely worked full time subject to some restrictions: primarily that he avoid or restrict the use of his right arm. Despite receiving physiotherapy treatment Mr Hall continued to be troubled by his right shoulder and in August 2007 underwent surgery to repair the SLAP lesion. The procedure was not entirely successful and resulted in increased pain and decreased movement of the right shoulder. Those problems were not resolved and two further operations were performed. Following the third operation carried out in August 2010, the treating surgeon, Dr Jerome Goldberg reported that an “excellent labral repair was achieved”.
In February 2010, at the recommendation of Dr Goldberg, Mr Hall was transferred to clerical duties. In March 2011 he was certified unfit for work on account of depression. He has not worked since that time.
Left shoulder tear
Three months after stopping work in 2011 Mr Hall hurt his left shoulder. In a statement prepared for these proceedings he stated:
On 6 June 2011 when I was getting into my utility I reached across while I [was] carrying 2 shopping bags to place them in the passenger side footwell I felt a sharp pain in my left shoulder and again when sleeping later that day I felt it go pop.
An MRI taken shortly after that incident revealed a left shoulder labral tear, which was repaired by Dr Goldberg in September 2011.
At the time of that incident Mr Hall was certified fit to work four hours per day with restrictions (on account of his right shoulder) and totally unfit for work (on account of depression).
In a progress report addressed to Mr Hall’s GP, dated 11 January 2011 (five months before the left shoulder incident) Dr Goldberg wrote that movement in Mr Hall’s right shoulder was “approaching normal” and he was making steady progress. He recommended that Mr Hall not lift more than five kilograms or undertake any repetitive or overhead work. He also recommended that Mr Hall commence a light weights program under supervision. In a report dated 14 July 2011, Dr Goldberg wrote that Mr Hall’s right shoulder “is doing reasonably well though [Mr Hall] does get some discomfort with overuse”.
Left shoulder symptoms
Mr Hall claims that he has been troubled by his left arm periodically over a number of years and believes this to be related to its overuse. He stated that the reason for the relatively few references to left shoulder complaints in the reports and notes of his treating doctors prior to June 2011 was because his primary focus up to that time was his injured right shoulder.
Medical opinion on causation
In a progress report addressed to Mr Hall’s GP, dated 12 July 2011, Dr Goldberg wrote that “some weeks ago Mr Hall was overusing his left shoulder to compensate for his injured right and developed significant left shoulder pain”. He stated:
The patient has impingement and a labral tear of the left shoulder and I believe this is a result of him having to overuse his left shoulder to compensate for the right.
Mr Hall’s left shoulder was assessed for the purpose of these proceedings by orthopaedic surgeons Drs James Bodel and Rhys Gray. Each prepared reports and gave oral evidence concurrently. Both agreed with Dr Goldberg’s diagnosis of an impingement and a labral tear of the left shoulder and his opinion that surgery was necessary.
Dr Gray assessed Mr Hall at the request of Australia Post. Dr Gray recorded in a report dated 14 September 2011:
MrHall also stated that he had no further particular left shoulder symptoms until 6 June 2011. He was undertaking grocery shopping utilising a trolley. He said on putting the grocery shopping into the car, he felt a sharp pain over the anterior aspect of the left shoulder. On arriving home, he took two Tramal tablets and said he ‘passed out’ on the couch. He said he awoke lying on the left arm and felt the left shoulder go ‘pop’
He wrote that there appeared to be no specific work injury to precipitate the tear to the left shoulder:
[T]he most recent episode in July 2011 precipitating surgery … was not a function of his right shoulder but an intrinsic problem in his left shoulder, on the evidence I have available.
…
In my assessment, on the balance of probabilities the left shoulder condition is not secondary to the right shoulder condition.
In oral evidence Dr Gray said that the statement in his report (at page 8) — “a labral tear of the left shoulder of a constitutional nature” — was an error and he had not meant to convey that Mr Hall had a tendency to develop lesions of this type.
Shortly after being assessed by Dr Gray, at the request of Mr Hall’s solicitors, Dr Bodel assessed Mr Hall’s shoulders. In a report dated 15 November 2011 Dr Bodel wrote:
Has Mr Hall suffered, and does he continue to suffer from an injury to his left arm in relation to which the injury 08 September 2005 has contributed to a material degree? If so, is this a permanent injury?
This gentleman does have an injury to the left arm which indirectly relates to the injury to the right shoulder.
This gentleman’s left shoulder pathology has arisen indirectly as a consequence of the injury to the right shoulder.
He has favoured that side to protect the injured left side.
Do you agree with the opinion of Dr J Goldberg as to causation of the left shoulder condition? If so, please advise your reasons for doing so.
I agree with the assessment by Dr Goldberg.
As directed by the Tribunal, Drs Bodel and Gray met and prepared a joint report prior to giving oral evidence. In that report, Dr Bodel wrote that having read the statement prepared by Mr Hall in particular the account of the shopping bag incident (at par [191]) he had revised his opinion and on the basis of that fresh evidence agreed with Dr Gray’s opinion that there was no causal link between the left shoulder pathology and the earlier right shoulder injuries.
In oral evidence Dr Bodel explained that he had revised his opinion because, when preparing his report, in addition to the incomplete history he had mistakenly assumed that Mr Hall had sustained a rotator cuff lesion, not a labral tear.
Drs Bodel and Gray thought that the 2004 injury involving Mr Hall’s left shoulder was probably a soft tissue injury or a “relatively minor non-structural injury”. They were of the opinion that a SLAP lesion of the type suffered by Mr Hall required a significant amount of force or trauma. Each thought that lifting shopping bags with an extended arm and the later incident of the shoulder “going pop” after waking up having passed out on his couch at home (as referred to in the history recorded by Dr Gray), in combination, were capable of causing a labral tear. They were also of the opinion that even if accepted, that for an extended period Mr Hall had been preferring or overusing his left shoulder and experiencing some symptoms as a result, it would not have resulted in, or contributed to, a SLAP lesion.
Is Australia Post liable for Mr Hall’s left shoulder condition?
Whether Australia Post is liable in respect of Mr Hall’s left shoulder condition turns on whether he suffered an “injury” within the meaning of the Act. The Act contains a number of definitions of “injury”. Mr Hall relies on those contained in ss 4(3) and 5A(b).
Did Mr Hall sustain an injury involving his left shoulder within the meaning of s 4(3)?
Mr Hall will be taken to have sustained an injury to his left shoulder if it was “a result of” the surgery to his right arm. Section 4(3) states:
For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.
There is no issue that it was reasonable for Mr Hall to have undergone surgery to his right shoulder in 2010. The sole issue in dispute is whether the labral tear to his left shoulder was “as a result of” that surgery.
Mr Hall submits that Hart v Comcare (2005) 145 FCR 29 is authority for the proposition that the phrase “a result of” imposes a “but for” test. (For a discussion of the “but for” test see March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 per Mason CJ at 515–516; Purvis v State of New South Wales (2003) 217 CLR 92 at 143–144.) Mr Hall argues that “but for” the surgery to his right arm and the resultant reduced pain and reduced function during the period of convalescence he would not have used his left arm to lift the shopping bags and the tear to his left shoulder would not have occurred.
We do not agree with the proposition that Hart v Comcare is authority for the proposition that the phrase “as a result of” is synonymous with a “but for” test. A “but for” test is a low threshold that merely relates to a condition or factor that is necessary but not, by itself, sufficient to establish causation. The phrase “a result of” requires us to determine whether an operative cause of Mr Hall’s left shoulder pathology was the left shoulder surgery (Hart v Comcare at 33). There is no requirement that the surgery be the sole, dominant or proximate cause (Roncevich v Repatriation Commission (2005) 222 CLR 115 at 121). An assessment of whether the surgery was an operative cause requires a common-sense evaluation of the causal chain between the surgery and the left shoulder pathology (Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 516).
But even if the test is merely “but for”, it would not assist Mr Hall. While we accept that prior to his right shoulder injuries Mr Hall probably preferred his right over his left arm, it cannot reasonably be argued that “but for” the surgery he would have not have used his left arm to lift the shopping bags. It is something of a stretch to suggest that “but for” the surgery in this specific incident he would have used his dominant right arm. The circumstances of the incident of Mr Hall reaching across from the driver’s seat to place the shopping bags into the footwell of the passenger seat suggests that his positioning at that time was a factor in the use of the left arm.
Apart from that used to support the “but for” contention we have not been taken to any evidence that might suggest that the surgery was a cause of, or played some role in, the tear developing in Mr Hall’s left shoulder. Mr Hall is not taken to have sustained an “injury” involving his left shoulder by the operation of s 4(3).
Did Mr Hall sustain an injury involving his left shoulder within the meaning of s 5A(1)(b)?
Section 5A(1)(b) of the Act defines “injury” to include:
an injury (other than a disease) suffered by an employee, that is a physical … injury arising out of, or in the course of, the employee's employment; or
Mr Hall contends that the labral tear in his left shoulder arose out of his employment because it was causally related to his accepted right shoulder condition. He contends that the pattern of injuring and reinjuring his right shoulder, followed by treatment and restricted use and consequent overuse of the left shoulder contributed to the subject tear. He points to the recommendation repeatedly made by his treating doctors to avoid highly repetitive tasks involving his left arm. (See for example the report by Dr Michael Charles, 4 September 2007 and Dr Mills, 3 March 2009). Mr Hall submits that the link between overuse and an abnormal shoulder is consistent with his history of experiencing and complaining of left shoulder problems over an extended period.
We have before us two competing medical opinions about whether there is a relationship between Mr Hall’s accepted condition and the SLAP tear to his left shoulder. His treating surgeon believes the two are related; Drs Bodel and Gray do not.
Dr Goldberg’s opinion on causation is set out in a brief report addressed to Mr Hall’s GP. The report does not disclose the facts on which that opinion was based or the reasoning process employed. We are told that Mr Hall was unable to obtain a further report because of Dr Goldberg’s reluctance to become involved in compensation disputes.
In contrast Drs Bodel and Gray gave a reasoned and cogent explanation for their conflicting opinion. They are of the opinion that a trauma of some significance is necessary to bring about a SLAP lesion and that it was improbable that it could have been caused by overuse. They stated that even if, as claimed, Mr Hall had been suffering from some symptoms in his left arm that was unlikely to have left him vulnerable to a SLAP tear.
We accept as submitted for Mr Hall that Dr Goldberg is an eminent shoulder surgeon and, given the long period he has been treating Mr Hall, well placed to give an opinion on the cause of the tear. We agree that a decision to depart from the opinion of a treating doctor should not be taken lightly. We also agree that a medical opinion accompanied by an explanation does not necessarily trump one that is not.
Undertaking the often difficult task of fact finding where there is conflicting medical evidence requires an assessment of all of the evidence. We have been provided with a cogent and reasoned explanation for the opinion reached by Drs Bodel and Gray. Their evidence is unequivocal: a trauma of some significance would be needed to bring about a SLAP tear and overuse would not contribute to its development. While the overuse/aggravation hypothesis advanced by Mr Hall is superficially attractive and supported by Dr Goldberg, absent some explanation as to how overuse could contribute to a SLAP tear, we are unable to accept it.
On balance we could not be satisfied that Mr Hall’s left shoulder condition arose out of his employment. It follows that he has not sustained an injury as defined by s 5A(1)(b) of the Act.
Did Mr Hall suffer a disease within the meaning of s 5A(1)(a)?
In the interests of completeness we will consider whether Mr Hall suffered from a “disease”, namely an ailment that was contributed to, to a significant degree, by his employment with Australia Post (ss 5A(1)(a) and 5B of the Act). In reaching that decision we must have regard to all the matters listed at s 5B(2). As noted we prefer the opinion of Drs Bodel and Gray that any overuse of the left arm did not contribute to the SLAP tear. Furthermore, in their opinion the effects of the accepted 2004 left shoulder injury were short lived and played no role in the development of the subject tear. There is no opinion to the contrary. Dr Goldberg has not offered an opinion on this issue.
We are not satisfied that employment contributed to a significant degree to Mr Hall’s left shoulder condition. According we are unable to find that he suffered a disease within the meaning of the Act.
Conclusion
We find that Mr Hall has not sustained an “injury” within the meaning of the Act. It follows that we must affirm the decision under review.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton, Dr Haikal-Mukhtar, Member ..............[SGD]..........................................................
Associate to Senior Member Britton
Dated 10 December 2012
Date(s) of hearing 22 November 2012 Counsel for the Applicant John Mrsic Solicitors for the Applicant Turner Freeman Lawyers Counsel for the Respondent Matthew Gollan Solicitors for the Respondent Graham Jones Lawyers
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