Hamdorf and Comcare - [2000] AATA 148

DECISION AND REASONS FOR DECISION [2000] AATA 148

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV98/607

GENERAL ADMINISTRATIVE DIVISION )

Re BARBARA HAMDORF
Applicant

And COMCARE
Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date25 February 2000
PlaceMelbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED that the applicant suffered injury and is entitled to compensation per paragraph 97 herein.

......... Mr J. Handley ......
Senior Member
CATCHWORDS
WORKERS' COMEPNSATION – whether work caused temporary aggravation of pre-existing injury – inappropriate and overzealous behaviour by the respondent and its practices – failure to comply with Tribunal's Practice Direction and failure to exchange reports – Model Litigant Policy – decision set aside.
Judiciary Act 1903 s55ZF
Melbourne Steamship Co. Pty Ltd v Moorehead (1913) 15 CLR 333

REASONS FOR DECISION

25 February 2000 Mr J. Handley, Senior Member

The applicant applies to review a reviewable decision made by the respondent on 14 April 1998. That decision varied a primary decision previously made by the respondent on 30 January 1998.
In its primary decision the respondent accepted liability for a condition of "right rotator cuff syndrome" up to and including 31 March 1998. The reviewable decision varied the primary decision by accepting liability up to and including 10 December 1997.
The hearing of this application commenced in Mildura on 26 April 1999. Ms Lloyd appeared on behalf of the applicant and Mr McInnis appeared on behalf of the respondent.
The hearing resumed in Melbourne on 3 June 1999. Subsequently the representatives for the parties filed written submissions. A transcript is available only of the evidence heard in Melbourne on 3 June 1999.
Barbara Ann Hamdorf
Ms Hamdorf is single and 35 years of age at the time of the hearings. She commenced employment with the Health Insurance Commission ("HIC") in Melbourne in February 1990. In 1995 she moved to Mildura and has remained employed with the HIC.
At the commencement of employment in 1990 the applicant's work exposed her to repetitive keyboard duties and typing data from Doctors' prescriptions where she predominantly used her right hand. She also completed telephone enquiries and other work involving a keyboard and a computer. Principally her hours of work were between 8am and 5pm and there was some overtime available.
When Ms Hamdorf moved to Mildura she performed similar work but also responded to customer enquiries and completed cash transactions where customers sought reimbursement of paid medical accounts. Ms Hamdorf said that most of her work was at a public counter processing claims where each claim exposed her to computer entry, again involving extensive use of her right hand and arm.
The applicant said that a typical day would commence by her being given a money float from the office accountant and setting up her workstation before customers arrived. She would have a 15 minute break for morning and afternoon tea and a 30 minute break for lunch. Apart from these times and other occasions where she would break to go to the toilet or to collect additional stationery, she would remain at her counter attending customers and completing computer entries.
On Saturday 13 September 1997 Ms Hamdorf worked overtime between 8am and 12 noon. She recalled that the office in Mildura had been busy all of the previous week and she had worked overtime also on the previous Thursday. Ms Hamdorf noted that by about 11am on Saturday, 13 September 1997 she was experiencing swelling in her right arm together with a sensation of pins and needles. She continued to work and by 12pm was suffering from swelling in her right fingers and at the back of her right shoulder. She also felt a hot sensation and severe throbbing in the shoulder. Ms Hamdorf recalled that she had some stiffness in her right shoulder during the previous week but had completed stretching exercises to relieve these symptoms. The applicant said that she had no prior right arm or shoulder injuries. The only prior illnesses that she had suffered were Ross River fever, glandular fever and the removal of her appendix.
The applicant said that she rested at home for the remainder of Saturday 13 September 1997 and all of the following day. She recalled that her shoulder, arm and fingers were painful and the symptoms were worsening. She consumed pain killing medication. On the following day – Monday 15 September 1997 – being a workday, she rang her supervisor, Ms Toni Spooner. Ms Hamdorf said that she reported that she had a painful shoulder and would not be attending work on that day. She attended work on the next day and worked normal hours between 8am and 5pm. At that stage she was continuing to take pain killing tablets but had not attended a doctor for treatment. She worked on the following day, Wednesday 17 September 1997 and attended a chiropractor at the end of the day. She said the chiropractor manipulated her back and neck but did not "touch" her shoulder. She said that the chiropractor was reluctant to manipulate or treat it because of her complaints of pain.
Ms Hamdorf said that she worked on Thursday and most of Friday of that week but left work early because of persisting pain and attended her chiropractor and her general practitioner, Dr Hartley. On the occasions that she worked during this week Ms Hamdorf said that she performed normal duties.
The applicant said that Dr Hartley issued her with a certificate for two weeks of incapacity by reason of a rotator cuff injury, which he related to employment. She said that he instructed her to rest her shoulder during these two weeks. At the expiration of that period Ms Hamdorf reported back to Dr Hartley that there had been no improvement and that she was having difficulty on a daily basis with showering, washing and cleaning her house. She drove a motor car but with her left hand only and friends assisted her with shopping. Dr Hartley issued another certificate and recommended physiotherapy.
The applicant continued with physiotherapy treatment and massaging. She was prescribed pain killing and anti-inflammatory medication.
By December 1997 the applicant had not yet returned to work and she was referred to Mr Troy, a medico-legal consultant engaged by the respondent.
In early February 1998 the applicant returned to work on light duties only. She recalled that her work comprised opening mail, displaying pamphlets at the workplace counters and 30 minutes per day of keyboard duties. She was working full-time. Ms Hamdorf recalled that her right arm and shoulder remained painful with pins and needles and frequent sharp attacks of pain into the top of her shoulder which she described as being "like hot needles". She also recalled that her right shoulder would occasionally slump forward.
The applicant continued working light duties until August 1998, however, by this time Ms Hamdorf recalled that her arm was becoming worse and had reduced movement. She recalled that she remained restricted at home and on occasions used a sling and an icepack for relief of pain. Dr Hartley was apparently concerned with the applicant's progress and he referred her to Mr Sandow, a surgeon. He recommended arthroscopy and surgery. The applicant ultimately submitted to surgery on 21 October 1998 with Mr Sandow, whom she last attended for treatment in February 1999.
The applicant returned to work in March 1999, again performing light duties but at 4 hours per day. Ms Hamdorf recalled that her shoulder remained painful and there were continuing restrictions on her ability to perform housework.
The applicant has not had physiotherapy treatment since March 1999 because she is unable to afford it. She continues to see Dr Hartley once per week. The applicant has recently, unfortunately, been diagnosed with Crohn's disease and shortly prior to the commencement of this hearing had been an inpatient at the Mildura Hospital for 4 days.
The applicant said that she had played hockey and netball prior to September 1997. She said that she had played one season of netball, which concluded on 12 August 1997 when the netball season ended. She ceased playing hockey at about that time also. Ms Hamdorf had also been attending a local gym on two or three occasions per week and participated in aerobic classes only. She did not lift weights. Ms Hamdorf attempted two games of netball in 1998 after she returned to work but played for less than half a game only. On one occasion she injured her ankle and on another occasion she noted pain in her right arm and ceased playing.
In cross-examination Ms Hamdorf was taken to the form she completed when claiming compensation, found at T-3 of the documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("T documents"). The form records the injury as "swollen arm, pins and needles, burning sensation, muscles are all tight and sore". The "part of the body" affected is described by Ms Hamdorf as "right shoulder and arm also going towards neck area". Question 18 of the form records Ms Hamdorf as having answered "no" to the question "Have you ever had a similar injury or illness before, work related or otherwise (even if you think it is unrelated to this injury or illness)?".
Ms Hamdorf said that she had attended Dr Hartley in Mildura for Ross River fever and had had some chiropractic treatment in Melbourne before she moved to Mildura. She said she attended Dr Molten at the Donvale Chiropractic Centre for migraines only. She could not recall when she first attended him. She said that Dr Molten had advised her that her migraines were because of some neck abnormality. In Mildura Ms Hamdorf had attended Dr Gooch, a chiropractor, for migraines and back stiffness.
In the notes of Dr Gooch produced at the hearing (Exhibit 1), there is an entry on 17 September 1995 that records Ms Hamdorf as "complaining of neck, lower back and sinus pain". Ms Hamdorf acknowledged that he did not refer to migraines and said that she answered question 18 in the negative in the claim for compensation because it did not occur to her to refer to her neck as being injured at work and she believed that it was her shoulder that was injured. She disagreed with a suggestion put by Mr McInnis that her major complaints and the reason for attending her chiropractor were her neck, back and sinus pain. She said that her migraines were her major complaint and it was for this reason that she attended the chiropractor. Ms Hamdorf said that she had not attended Dr Hartley for treatment of her neck, back or sinus. She acknowledged that Dr Gooch recorded in his notes and in a report received into evidence that he treated her on 17 September 1997 for "chronic right shoulder injury" however she said that she did not see him until 19 September 1997 and on that occasion he treated her back and neck. She said that she continues to attend Dr Gooch who manipulates her neck and this provides her with temporary relief.
Ms Hamdorf said that she played netball for one season in Melbourne before she moved to Mildura. She could not recall the name of the team nor the competition that she played with in Melbourne. She started playing Netball in Mildura in late 1995 or early 1996 with a team known as the "Healing Machine". She said she played for half a season in a number of different positions. She agreed that the sport would require her to move her arms and lift them above shoulder height. In 1997 she said she played only two games prior to the conclusion of the season. On other occasions that games were scheduled she did not play because there were enough players, she was ill or was suffering from migraines. In 1998 Ms Hamdorf played for half a game on two occasions but could not recall when those games were played. She acknowledged that, in a report, Dr Flemming recorded that she had returned to playing netball but she said that he had exaggerated.
Ms Hamdorf had also played field hockey for two seasons with a team known as "Kooinda". She said she played on average once every two weeks and played as the full-back. She is right hand dominant but was required to reach out with both her left and right hands whilst playing full-back.
Ms Hamdorf was taken to a medical report filed by Dr Hartley and found at page 47 of the T-documents. In that report he recorded that Ms Hamdorf suffered a painful arc syndrome and tender and painful right rotator cuff. In his opinion the applicant "developed this condition over the weeks preceding the 13th of September, 1997 and not specifically on that day". Ms Hamdorf said that opinion was not inconsistent with her recording in the compensation claim form that she had not previously suffered similar injury because in the week prior to 13 September 1997 she had suffered stiffness in the shoulder only. She specifically denied that her injury had any association with playing hockey or netball.
Ms Hamdorf was also taken to a statement prepared by her supervisor, Ms Spooner. This document is found at T-4, pages 13-15. In that document Ms Spooner said that Ms Hamdorf rang her at work on 15 September 1997 to say that she would not be attending work because "she had hurt her arm". Ms Hamdorf said that she reported that she had hurt her shoulder. She said that she had not spoken to Ms Spooner or any other workmate about any difficulties at work in the two years that she had been in the Mildura office of the HIC. Additionally she had not made any complaint at work concerning any pain or stiffness in her arm or shoulder or any complaint about the work or the workplace. Ms Hamdorf also disagreed with a comment made by Ms Spooner in the statement that the first report of a relationship between the employment and the injury was made on the Thursday following the Saturday morning where she worked overtime. Ms Hamdorf said that she reported to Ms Spooner on the Tuesday following the Saturday morning overtime of an association between the work and her symptoms. She said she did not make the report any earlier than Tuesday because she had assumed that the symptoms would have settled by then.
Ms Hamdorf also disagreed with comments made by Ms Spooner in her statement that her arm was "sore and tender because the chiropractor did a lot of deep tissue massage". Ms Hamdorf said her chiropractor had not massaged or treated her arm or shoulder but had manipulated her neck and back.
Ms Hamdorf said the Crohn's disease was diagnosed only a short time prior to the hearing commencing in Mildura. She said the symptoms of it comprise red welts and inflammation of her knees and ankles. She said these symptoms first appeared after she returned to work in March 1999. At that time she was working 4 hours per day only. Ms Hamdorf said that if she was able to undertake less keyboard work and less mail sorting she was confident that she could work full-time. She said presently she is required to type between 1 and 2 lines of characters per claim form and up to 180 claim forms per day.
In re-examination Ms Hamdorf said that she had never been treated by her chiropractor for her shoulder injury. She was adamant that she only ever attended Dr Gootch for manipulation of her neck and back and treatment for migraines. She said that she had notified her doctors that she had played and trained in hockey and netball and could not explain why they had not recorded these sports in their reports.
With respect to her relationship with Ms Spooner, her supervisor, Ms Hamdorf said that she "had her moments" with her like any other manager. The applicant said that she and Ms Spooner were in the same hockey club but in different teams. In March or April 1998 Ms Hamdorf said she was called into Ms Spooner's office where Ms Spooner complained that the applicant had ruined her holiday and referred to Ms Hamdorf as a "bitch".
Donald Hartley
Dr Hartley is a general practitioner in Mildura. He has been treating Ms Hamdorf since February 1997.
In evidence he said that the first time he saw her with respect to the right shoulder injury was on 19 September 1997. His notes (Exhibit 11) record that Ms Hamdorf had told him that she had pain in her right shoulder following overtime worked on the previous Saturday (13 September 1997). He noted pain on full-range of abduction and he prescribed medication. When he next attended Ms Hamdorf on 26 September 1997 he noted that there was a slight improvement but he referred her for x-ray. Thereafter he attended her on a number of occasions for treatment and referred her for physiotherapy. He continued to note the presence of pain. Following receipt of the radiologists report Dr Hartley concluded that the appropriate diagnosis was rotator cuff injury.
Dr Hartley continued to treat Ms Hamdorf in 1998. On 13 January 1998 he noted the presence of right shoulder pain. He was also shown a report from Mr Troy who examined Ms Hamdorf at the request of the respondent. He disagreed with the opinion of Mr Troy. It was Dr Hartley's opinion that the applicant did have a right rotator cuff injury and a painful arc syndrome. He thought that there was no specific event associated with the applicant's work that caused the injury and was more inclined to the opinion that there was a gradual deterioration or degeneration in the applicant's shoulder by reason of her work prior to 13 September 1997.
At the date of the hearing Dr Hartley continued to provide certificates for Ms Hamdorf to work restricted or lighter duties only. He also recommended provision of a forearm rest to be fitted to her workstation. He said this would permit the applicant to have use of her right hand without any impingement upon her right shoulder. Dr Hartley was of the opinion that the applicant was still recovering from the effects of surgery performed by Mr Sandow. He was confident that the applicant's shoulder would eventually settle and that she would be able to return to full-time duties.
In cross-examination Mr Hartley said that he had no history from the applicant of having played netball or hockey or participated in aerobics. He said he did not know that the applicant had attended Dr Gooch for back and neck manipulation or for treatment of sinus pain and migraine.
Upon the hearing resuming in Melbourne, Dr Hartley (who gave the remainder of his evidence by telephone from Mildura) said that he was also not aware that the applicant had previously sought treatment at a chiropractic clinic in Melbourne before she moved to Mildura. When he was asked to comment upon the applicant's participation in netball and hockey, prior to the episode in September 1997, and having regard to concerns expressed by Mr Flemming (a local surgeon who examined the applicant and found that the participation in sporting events might have an association with her injury), Dr Hartley said that he thought "it's a strong possibility" [Transcript p4]. Additionally he was of the opinion that it was a reasonable proposition that the applicant's sporting activity subsequent to September 1997 may have caused aggravation of the injury and ultimate referral to Mr Sandow, a surgeon in Adelaide.
In re-examination Dr Hartley said that the treatment the applicant had sought from Dr Gooch with respect to her back pain and headaches were not relevant in the context of her shoulder injury, but he thought that any previous opinion that he had expressed with respect to her shoulder pain might alter because of the information he learnt during the hearing. He said however that the only history that he obtained from the applicant was that the shoulder pain "had been coming on over the previous few days, a week" and that "there was no initiating cause, apart from the work environment" [Transcript p5].

When asked to comment upon his evidence that he thought there was a "strong possibility" that sporting activity may have some association with the applicant's injury, he said-
"Well, if there was some trauma sustained during the sporting activity, that would end up with the same result as an injury at work, I would have thought" [Transcript p6].

When asked to describe what he meant by "trauma" he said-
"Well, you know, shooting for goal, straining the arm, the socket itself or receiving a push to the shoulder" [Transcript p6].

Dr Hartley said that had such an incident or episode occurred, it was his opinion that symptoms would have been experienced "straight away" [Transcript p6].
Michael Sandow
Mr Sandow is an orthopaedic surgeon in Adelaide. Ms Hamdorf was referred to him by Dr Hartley.
Mr Sandow first saw the applicant on 15 September 1998 and diagnosed a right rotator cuff tendonitis with mild rotator cuff degeneration. He also noted that the applicant had an unstable fragment of bone in her shoulder. Mr Sandow took a history of the applicant having experienced pain in her right shoulder. It was his opinion that the injury arose out of the employment. He had no history of any other activity in which the applicant was engaged, nor any association between the injury and any other incident or activity.
Mr Sandow was unable to comment on the applicant apparently having played netball on 10 September 1997 and subsequently on 28 October 1997. He said he would need to know details about the extent of her performance, the standard of the game, whether she was suffering any symptoms and whether she suffered pain subsequently. He said it was not unusual for persons to play sport with pain or with injury.
When he learnt that the applicant subsequently played netball in May and June 1998 but had ceased (because of her earlier evidence of having experienced shoulder symptoms) Mr Sandow said that it seemed to him that there was "very strong evidence that she's having ongoing problems" [Transcript p12].
Following the first consultation with Ms Hamdorf, Mr Sandow was of the opinion that there was very little that he could offer the applicant other than surgery. He was aware that she lived some five hours from his rooms and decided to review her as needed. Eventually Ms Hamdorf had surgery with Mr Sandow in October 1998. The procedure was described as acromionplasty and lateral clavicle incision. Mr Sandow described the procedure as the removal of 1.5 centimetres of collarbone and removal also of part of an unstable area of the acromion (to improve space for tendons). When he reviewed Ms Hamdorf in February 1999, some three or four months after surgery, he found that she had 90 degrees of flexion, good power and adequate range of motion. He felt prognosis was "quite good". He found that there was no arthritic changes and "various structures" were all in tact. Nonetheless he said it was common to require "many months, a year or sometimes two for the muscles to restore their normal rhythm and flexibility, but the long term prognosis I believe is really quite good" [Transcript p.14].
In terms of the applicant's capacity for work Mr Sandow said that the applicant may suffer irritation with prolonged typing activity or reaching and recommended that there be a workplace assessment and frequent rest breaks at work. Housework, he said, should be restricted without activity involving reaching or lifting.
With respect to an opinion expressed by Mr Troy who examined the applicant on behalf of the respondent, Mr Sandow agreed with the diagnosis made of a "degenerative right shoulder rotator cuff and an impingement" (Exhibit 24). He acknowledged that Mr Troy subsequently changed an opinion that he previously expressed when he learnt that surgery was required, but he agreed with the comment subsequently made by Mr Troy that the "repetitive nature of her work could have led to the fraying of the rotator cuff, the subsequent inflammation there and the impingement that was seen at arthroscopy" (Exhibit 24).
In cross-examination Mr Sandow agreed with Mr McInnis that it would not be unusual for the symptoms complained of by the applicant to be associated with sporting activity, however, Mr Sandow said that in the present circumstances he doubted such an association. In his experience persons who suffer sporting related injuries usually experience acute episodes of pain or injury associated with a fall or a sudden tackle. By way of example Mr Sandow referred to the possibility of a person suffering a dislocation or a specific traumatic episode. In the present circumstance Mr Sandow described the applicant's presenting injury as chronic low-grade pain. In fact he referred to it as being a "grumbling injury" {Transcript p21] and in his experience persons with a "grumbling injury" are not selected to play sport.
Mr Sandow also agreed with a comment made by Mr McInnis that it would not be unusual for persons who take up sport in their later years to suffer pain associated with it, but in his experience he found that "with an appropriate exercise program or rehab they usually settle down" [Transcript p21].
Mr Sandow had no history of the applicant having previously undertaken chiropractic treatment, however when he learnt that the chiropractor reported that he attended the applicant on 17 September 1997 for a chronic right shoulder injury described as bursitis, Mr Sandow was suspicious that the unstable bony fragment found by him at surgery would be consistent with the previous pain that she had suffered and that the work event in September 1997 had increased her symptoms.
Mr Sandow dismissed a suggestion made that the employment produced a temporary exacerbation of her pre-existing symptoms at September 1997 but that subsequent sporting activity produced further exacerbation. In his opinion the work undertaken by the applicant produced a permanent exacerbation of a pre-existing underlying condition because the applicant's shoulder failed to resolve or return to the state that it was in, prior to the work incident on 13 September 1997.
Toni Maree Spooner
Ms Spooner has been employed by the HIC for 11 years and has been the Branch Manager in Mildura for the last 4 years.
The evidence of Ms Spooner was principally directed towards a handwritten document that she completed and attached to the applicant's claim for compensation (T-4), a supervisor's report (T-5) and a number of diaries that were maintained by Ms Spooner (Exhibit 21-1, 2 and 3). Additionally the witness gave evidence with respect to work practices and observations that she made of the applicant.
Ms Spooner said that the work of counter officers involved collection of a customer's Medicare card, swiping it electronically, typing in data with respect to the customer's address, name of doctor, date of service, doctor's provider number and monetary charge. She said the amount of typing would vary but would range between 1 and 5 lines per application. She said on average the amount of time spent with customers would vary between 1 and 5 minutes. The witness submitted a bundle of documents purporting to be a comparison of the claims processed by the applicant compared to the claims processed by another employee. The witness said that the applicant's work rate would be regarded as being
"…below average to average as in throughput – wise. An average operator would process between 100 to 250 claims per day. Sometimes less obviously if they were given varied duties" [Transcript p39].
Ms Spooner said that she was aware the applicant played sport. She said the applicant was a member of the Kooinda Hockey Club and last played in July 1997. Ms Spooner is also a member of that hockey club. She also said that she was aware that the applicant played netball before and after the episode at work on 13 September 1997. She said she was aware of the applicant's participation in netball as a result of conversations that she had with Ms Hamdorf and also by reference to comments that were made by other staff members who played in the same or opposing teams.
With respect to the work on Saturday 13 September 1997, Ms Spooner said that the applicant and other staff members volunteered to work overtime to clear a backlog of cheque claims. The work was completed between 8am and 12pm. Ms Spooner said that employees normally take a break of 15 minutes for every hour worked. She also said that the applicant did not complain to her on that day of shoulder or arm pain, nor was any other employee aware of the applicant having suffered pain on that day.
On Monday 15 September 1997 the applicant apparently rang Ms Spooner, the details of which have been recorded by Ms Spooner at T-4, page 13, being one of the documents annexed to the applicant's claim for compensation. Relevantly that document records-
"Barbara rang me 7.30am on Monday morning 15 September 1997 to tell me she wouldn't be at work for the day because she had hurt her arm. I recommended that she see a chiropractor".

The witness apparently had other discussions with the applicant on the remaining days of that week, details of which are also recorded at T-4, pages 13-14 as follows-
"…Tuesday (16/9) morning Barbara came to work. I asked her how her arm was – she told me it was still sore. I asked her if she went to a chiropractor & she told me "NO" - she had a massage. I told her "If it's still sore – you should seek a professional's advice & see a chiropractor". She booked in for Wednesday night. In the meantime, I gave her lots of reading to do & told her not to process cheque claims. Tuesday Barbara processed cheque claims, Wednesday & Thursday. Thursday morning Barbara came to work and was holding her arm – she told me her arm was sore and tender because the chiropractor did a lot of deep tissue massage. Her arm and shoulder appeared to be sorer on Friday (usually the second day after treatment you are worse). Barbara decided to go home early & left at 2.30pm. Before she left I asked her the following questions. "When and how did you hurt your arm Barbara?". Barbara told me she hurt her arm during overtime Saturday 13/9/97 when keying cheque claims. I asked her "why didn't you say something during overtime?" Barb shrugged her shoulders and said "I told you Monday". I replied "No you didn't Barb – you rang in sick". Barb stated "Oh! That's right – I told you Tuesday" – I said "No you didn't Barb, Stan Adams (my Regional Manager) was visiting us & I was with him most of the day – you just told me you had a sore arm". "If you ring up Monday morning sick – one assumes you hurt yourself at home". I, nor any of the staff had any incling(sic)/idea that Barbara hurt her arm during overtime. Friday afternoon was the first time Barbara had told anyone at work that she hurt herself during overtime the Saturday before. I asked Barbara "Are you going to claim from ComSuper?" Barb's reply was "well I might as well because I've got no sick leave left!"

The remainder of the document records 9 reasons given by Ms Spooner as to why the applicant's claim for compensation should not be accepted.
In cross-examination Ms Spooner said that she had "no problems" with her relationship with the applicant [Transcript p45]. She said she had no knowledge of any injury sustained by the applicant playing hockey. When she was taken to her diary entry of 15 September 1997 (Exhibit 21-1) where it was recorded that the witness "assumed" that the applicant "slept funny or a sports injury" as an explanation for the shoulder injury, Ms Spooner said that the applicant had been "playing sport on a regular basis, and she quite often would turn up for work and she was limping or had something wrong because she'd play sport" [Transcript pp46-47]. When pressed later Ms Spooner said she did not know "for a fact" whether the applicant was playing sport, at or about the time of her injury in September 1997 "but she always played sport on a regular basis and it's not the first occasion where she's had something wrong and turned up to work with some sort of injury" [Transcript p51]. When pressed she said the injuries were "various things: limping foot" [Transcript p51]. Later when pressed as to whether the witness understood the applicant to play sport on weekends or during the week, Ms Spooner said "as far as I know it was during the week" [Transcript p56]. She said that she obtained information concerning the applicant's sporting activities from a friend of Ms Hamdorf and by overhearing conversations between the applicant and a friend at the workplace counter.
With respect to the diary maintained by the witness and the entries within it, Ms Spooner said that she was unfamiliar with compensation claims, the entries were all made by her and were intended to be private, she did not intend that access to the diary would be given to any other person and they were made to refresh her memory should the need ever occur. With respect to the information she provided in the employer's part of the compensation claim form, the witness said that it was in her "nature to be thorough" [Transcript p55]. When the witness was taken to an entry in the diary of having asked the applicant to "iron her shirts" [Transcript p62] (and the witness having suggested to the applicant that she use a higher setting on her iron) another reference is to the applicant playing basketball. Ms Spooner denied that any activity by the applicant had deserved entry in the diary. She said "when it's expected of you as part of your duties to perform at a certain level and if you're not doing that then it's my job to let that person know" [Transcript p63].
In re-examination the witness said that it was her practice to maintain a diary because "to me that was just common sense, recording things that had happened" [Transcript p64]. She said she did record an entry with respect to another employee who had been late attending work on a number of occasions. Ms Spooner denied that she was intending to make "life uncomfortable" for the applicant, or to "pick on her" because she had made a compensation claim [Transcript p65]. She said there were more entries in the 1998 diary (Exhibit 21-2) than the 1997 diary (Exhibit 21-1) because she had become more experienced as a manager, had taken on more duties, and in those circumstances "it's common practice with the Commission to make diary notes of things that are going on" [Transcript p66].
Michael Troy
Mr Troy is an orthopaedic surgeon who examined the applicant on a number of occasions at the request of the respondent. He provided three reports all dated 10 December 1997 (T-12, T-13 and T-23) and further reports on 17 February 1999 (Exhibit 24) and 6 April 1999 (Exhibit 25). Between the first report of 1997 and the subsequent reports in 1999 Mr Sandow had performed surgery upon the applicant. Mr Troy agreed that additional information available to him at the subsequent examination in 1999 gave him a better indication of the nature of the applicant's injury and the cause of her pain.
Mr Troy observed a video film depicting part of the applicant's duties with the HIC. It was his opinion, having observed the work being undertaken by another employee, that the contribution to the applicant's injury by employment would be regarded only as temporary. In his opinion, the injury to the applicant affecting her supra spinatus tendon is typically caused in persons who work above shoulder level. He said he did not see any work being undertaken above shoulder level from the video film. When Mr Troy learnt that the applicant was recorded in a score sheet of having played netball on 28 October 1997 he said that any aggravation by employment would have taken approximately 6 weeks to resolve (because she was then able to play netball).
In cross-examination Mr Troy said that he did not observe or find upon examination any abnormality in the applicant's shoulder at first consultation in December 1997. He noted that Mr Sandow found upon surgery that the applicant had a pre-existing abnormality which he described as an "abnormal ostacromonale" which he said was a "little mobile spur" where the "ossification centre didn't join up with the acromion" [Transcript p72]. He said that there would have been "rubbing on the rotator cuff" [Transcript p72] as an explanation for the applicant's symptoms and in his opinion the degeneration and fraying spoken of by Mr Sandow, is explained by this abnormality. He described it as a "steel comb constantly rubbing through the tendon as she moved her arm" [Transcript p72].
When he was asked to comment upon an opinion given by the applicant's chiropractor at 17 September 1997 that she had acute bursitis, Mr Troy said that it would indicate to him that there was a finding of inflammation possibly caused by "excessive activity" [Transcript p73]. He said it would not necessarily mean that the tendon was fraying but it would be more likely that there is "some friction" [Transcript p73]. Mr Troy acknowledged that the inflammation could have occurred by reason of the applicant's work activity on 13 September 1997 but to be sure he said he would need to know the ranges of movement available to her at 17 September 1997 which he said were not apparent from the report of chiropractor. Mr Troy reaffirmed his view that the applicant had recovered from the effects of the work-caused aggravation within six weeks because in his opinion the applicant would not have been able to play netball on 28 October 1997, an activity he said would expose the applicant to having to raise her arms above shoulder height. Additionally he said that ultrasound evidence on 30 October 1997 of "no evidence of any impingement in abduction, no free fluid" (Exhibit 4), indicated to him that the applicant, at that date – 2 days after the alleged game of netball – had recovered.
Mr Troy said that the bony abnormality that existed prior to 13 September 1997 was ultimately responsible for her surgery and would have been responsible for ongoing chronic niggling pain and restriction of movement. Having regard to these opinions Mr Troy resiled from an opinion he expressed in his report of 17 February 1999 that the repetitive nature of her work could have led to the fraying of the rotator cuff because having observed the notes of the treating surgeon, Mr Troy was of the opinion that the applicant had a pre-existing injury which was temporarily aggravated by the employment only. When asked to comment upon the evidence of the treating general practitioner that he had no record of any period where the applicant had not complained of shoulder symptoms, Mr Troy said that those notes would be consistent of the pathological process continuing to manifest the pre-existing injury. In his opinion the applicant had recovered from "that acute temporary injury" [Transcript p78] because if she had not, in his opinion she would not have been able to play basketball 6 weeks later. The need for surgery according to Mr Troy was because of the frayed tendon, which was caused by the pre-existing bony abnormality.
Meryl Hale
Ms Hale is a physiotherapist in practice in Mildura. Her clinical notes were received into evidence (Exhibit 23). Ms Hale has treated Ms Hamdorf and is also a member of the same netball team known as the "Healing Machine".
Ms Hale recorded in her notes that the applicant worked overtime on 13 September 1997 and recorded the words "hurting + +". Ms Hale said that those symbols meant that the injury was "hurting a real lot". She also recorded that the applicant did not work on Monday 15 September 1997.
Ms Hale said that insofar as the team score sheets (Exhibit 17) recorded Ms Hamdorf playing netball on Wednesday 10 September 1997, she had no memory of any injury occurring in that game or in any other game that she played in. She said it was likely that if there was an injury to Ms Hamdorf or any other player that she would be called on to give assistance. To the extent that her records noted the application of taping to the applicant's shoulder when netball was played after 13 September 1997, Ms Hale said that the tape was applied for pain relief but "its nothing to do with netball whatsoever. The taping gave her some pain relief and allowed a little bit more movement" [Transcript p88].

Ms Hale said she had no memory of the applicant playing netball on 28 October 1997. She said that she was aware for a period of time the applicant did not play and she added that there was a period of time where Ms Hale did not play "to avoid any potential conflict of interest, anything like that coming up" [Transcript p88]. Ms Hale said that she had no history of the applicant ever suffering right shoulder problems because of netball or in relation to netball.
In cross-examination Ms Hales said the last occasion that she attended the applicant for treatment prior to the commencement of the hearing was on 17 February 1999. It was her opinion then that the level of the applicant's activity suggested that she would be ready to consider returning to work. She said the applicant was then managing most household work, although with restrictions and the applicant was also able to attend a gymnasium for aerobic classes and hydraulics work.
Ms Hale was asked to interpret the netball score sheets (Exhibit 17). The sheets recorded the date of the game, the names of the players and a space where a tick was inserted against a player's name. Ms Hale said that in general the tick would indicate that the player has played. She described the competition as being social and two seasons of competition are played each year. Ms Hale acknowledged that the team sheets would indicate that the applicant did play on 28 October 1997 and played three games in May 1998 and two games in June 1998. She said that would indicate that having had treatment Ms Hamdorf would reasonably attempt some activity.
With respect to the nature of the applicant's work Ms Hale said that she was aware Ms Hamdorf had worked for the HIC for 10 years and had been told that she always had some pain in the right upper trapezes region which the applicant accepted as "part and parcel of her work" [Transcript p93]. Ms Hales said that it was "not an unusual area for people to get pain in when they're doing keyboard work" [Transcript p93].
In re-examination Ms Hale said that seven persons occupy the floor during a netball game. If more than seven persons from a team attend a game, the players would each be ticked but would not necessarily play a full game and might only play one or more quarters of the game. She said person's names are ticked to ensure they have played a minimum number of games to be eligible for finals. She also said "sometimes people are ticked when they're not there just to make sure if we need them for the final we can get them in" [Transcript p95]. When asked whether "the presence of a tick against a persons name is not absolute proof that they played in the game" Ms Hale said "not 100 per cent" [Transcript p95]. She also said that if more than seven players names were ticked then it could be assumed that more than seven players turned up for the game and that one or more of those persons would not have played a full game.
Leanne Matherson
Ms Matherson is the manager of a sporting stadium in Mildura where Indoor Netball is played. The "Healing Machine" is a team that plays at the stadium managed by Ms Matherson.
She said that a tick against a player's name indicates that that player played netball on a particular date. She said it was practice to rotate players on and off the floor during a game if more than seven players attended to play the game. She also said that a minimum of five games has to be played in a season for a player to be eligible to play in finals games.
In cross-examination Ms Matherson said that in order to qualify for a tick against a player's name, the player must be present at the stadium and participate in at least one of the four quarters of the netball game. She said the score sheets are checked each night to ensure that only those players whose names were ticked did attend and play in the game. At the end of game the master sheet is then noted by the insertion of a black line through the sheet to ensure that no other person's name can be added later in the case of persons who would wish to qualify for a minimum of 5 games to be eligible for finals games. She said a book of injuries is not recorded with respect to those persons who report injury but any injury, if reported, is recorded on separate sheets. She said that she would be unable to locate the sheets of the 1997 and 1998 years.
Conclusion & Reasons For Decision
The circumstances giving rise to this application are typically found in the anatomy of conflict. This case was a tragedy and should never have occurred. With some goodwill, proper management and sound consistent decision making this application could have been resolved early, cheaply, efficiently and with workplace relations restored – and probably enhanced. Instead the hearing involved an attempted annihilation of the applicant by overt and overzealous litigious behaviour. The applicant, who I believe to be a witness of truth, was anxious and vulnerable. Hardly surprising when she was subjected to innuendo and a paucity of facts supporting the respondent's case. The employer's conduct and that of its advisers offend the Commonwealth's Model Litigant Policy. Although this policy was issued as a direction of the Federal Attorney General on 1 September 1999 pursuant to section 55ZF of the Judiciary Act 1903, the concept of fair dealing by the Commonwealth with its "subjects" is hardly new (refer Griffiths CJ in Melbourne Steamship Co. Pty Ltd v Moorehead (1913) 15 CLR 333 at 342).
The respondent did not allege the applicant's injuries to be associated with sport in its Statement of Facts and Contentions (filed in the week before the hearing), nor did it refer to the reports of Mr Troy of February and April 1999, which it then held but had not exchanged. The respondent's Statement of Facts and Contentions recorded that it would rely on the report of Mr Troy dated 10 December 1997. To raise in evidence that the applicant's injuries were consistent with sporting activity was most unfair because the applicant was denied the opportunity to meet the respondent's case. It subjected the applicant to unnecessary and discriminatory innuendo. It will inevitably cause comment in the applicant's workplace and may affect the relationship with her medical practitioners because they did not have a history from her of sporting activity. Similarly, the applicant's prior treatment by chiropractors in Melbourne for migraine and neck pain were an irrelevance and of no assistance to the respondent's defence of the claim. The cross-examination of the applicant's doctors because of their absence of a history of prior chiropractic treatment is also likely to tarnish the applicant's relationship with them. Whilst no application was made by the applicant's counsel to adjourn the hearing, having convened in Mildura such an option would have had to have been weighed against the considerable costs of convening in a relatively remote venue.
In its first decision dated 23 December 1997, the respondent accepted liability for a period of two weeks for a condition that it decided to diagnose as "soft tissue strain to right cervical spine and right upper limb". That decision ceased liability at 1 October 1997 (T-14). The decision maker said that it was proposed to rely on an opinion of Mr Troy who assessed incapacity (then) for a period of two weeks.
On 30 January 1998 the respondent decided to extend liability up to and including 31 March 1998 (T-19) by reason of reports received from Dr Hartley and physiotherapist Ms Cooke. The diagnosed injury was then described as "right rotator cuff syndrome".
On reconsideration the respondent on 14 April 1998 (T-29) decided that liability should only be offered for the period ending on 10 December 1997. The decision maker then preferred to rely on the opinion of Mr Troy who provided the same opinion upon which the primary decision of 23 December 1997 was based.
On 17 February 1999 Mr Troy provided an opinion to the respondent's solicitors following the examination on 9 February 1999 (Exhibit 24). In that report Mr Troy diagnosed "degenerative right shoulder rotator cuff and an impingement". He concluded that the nature of the applicant's work "could have lead to the fraying of the rotator cuff, the subsequent inflammation there and the impingement that was seen at arthroscopy." He also expressed an opinion with respect to the applicant's continuing capacity for work. The respondent's solicitors did not file that report until 23 April 1999, 3 days before the hearing commenced.
On 6 April 1999 Mr Troy provided another report to the respondent's solicitors, apparently in response to a request made of him on 25 February 1999. In that report he recorded-
"As you go on to state that in my recent report, it appears that I have changed my opinion, and the answer to that is yes, for the simple reason, that when I saw this lady initially, all I would have had was the symptomatology she described at that time, with the negative investigations, but that would not exclude the fact that degenerative change was taking place at that time, and that is why subsequent investigation led to the findings that were then subsequently confirmed at operation.
You have asked to provide a report, advising whether on the balance of probability, the applicant's employment as a Customer Service Office (sic) with the Health Insurance Commission caused or materially contributed to the injury to her right shoulder - the answer is yes, and that has been proven by the subsequent history of symptoms and findings which were not available to me when I saw this lady in December 1997."
The respondent's attitude to the application changed (again) when it sought to rely on alleged sporting activity by the applicant and Mr Troy (again) changing his opinions as to the extent of the employer's liability.
Despite the comments and conclusions made and reached in his reports of February and April 1999, Mr Troy said in evidence – having learnt that the applicant was alleged to have played netball on 28 October 1997 – that that activity amounted to evidence of the ending of a temporary work-caused aggravation of the shoulder injury, because were it not for the ending of the effects of aggravation, the applicant in his opinion would not have been able to play netball. Mr Troy was comforted in his opinions also by the finding upon ultrasound on 30 October 1997 – 2 days after the alleged netball game – that there was no apparent impingement on abduction of the right shoulder.
Mr Troy indicated in his opinion of February 1999 that the ultrasound showed no evidence of impingement but he acknowledged upon arthroscopy with Mr Sandow in October 1998 that a significant bony injury was found with fraying of the surface of the rotator cuff. He did not refer to that finding when concluding in evidence that the effects of the work-caused aggravation ceased at 28 October 1997. Indeed in his report of February 1999 he did not refer to any temporary workplace aggravation.
It would appear therefore that Mr Troy was relying entirely on the evidence at the hearing with respect to the alleged sporting pursuits of the applicant. Most of this evidence in my opinion was wholly unsatisfactory.
The applicant said in evidence that she did play netball in 1997, but could recall playing games only prior to the season ending in August 1997. Ms Hale said that she played in the same team as Ms Hamdorf but could not recall the applicant playing on 28 October 1997. Support for the respondent's contention that the applicant did then play was alleged to be found in team sheets, which recorded the applicant's name and a tick beside her name on that date. This was said to be evidence of the applicant having played in the game on that date. Yet this could not be accepted without reservation having regard to the evidence of Ms Hale that there were occasions where persons' names were recorded on the sheet with a tick beside the name even though persons did not attend and play games. Whilst I acknowledge that Ms Mathieson, the stadium manager said that such a practice never occurred, there must be some doubt raised as to whether the applicant played at all on 28 October 1997. In the alternative if she did play the respondent needs to be cognisant of the evidence of Ms Hale that the applicant did play games with her shoulder taped to reduce pain and increase mobility. In addition to this the applicant also said that there were many occasions where she did not play and then when she did it would only be for part of the game. I could not therefore be satisfied that the applicant played a game of netball on 28 October 1997 either at all or if she did in a manner or with such vigour or mobility as was assumed by Mr Troy sufficient to suggest that the work related effects of the shoulder injury had ceased at that date and the employers liability had then ended.
With respect to the alleged sporting activity in 1998 it is clear from the evidence that the applicant did not play hockey but she did play some netball. Ms Hamdorf said she played two games each for half a game. She could not recall when those occasions were. The score sheets purport to record the applicant having played in five games. For the reasons given above I could not conclude as a probability that the applicant did play on five occasions. In the alternative even if she did there is nothing from the evidence to suggest that she played with a degree of mobility or with such vigour as to suggest that the effects of injury had ceased.
The respondent in its written submissions urged a finding of accepting the evidence of Ms Spooner and the contents of her diaries. It was submitted that Ms Spooner was inexperienced with respect to compensation claims and the diary contents reflect that inexperience. Further, or in the alternative, it was submitted that the inexperience of Ms Spooner with respect to compensation claims would cause her to make detailed diary entries with respect to the compensation claim made by the applicant.
What was not explained however by the evidence was the need to maintain a diary at all and what was intended to be achieved by making the entries in the diaries, which were eventually submitted into evidence. The 1997 diary is littered with references made by Ms Spooner of the applicant. There would appear to be a greater number of entries in the 1998 diary concerning the applicant. The entries range between cautions given to the applicant for incorrect entries in her flex sheets, requesting personal telephone calls only be made during lunch recess, incorrect balances and a notation that the applicant attended work apparently without having ironed her shirt. Significantly however there are many references to the applicant and her compensation claim ranging from attendances with medical certificates, notations that medical certificates had expired, entries with respect to the applicant attending doctors, a note as to when the liability of the respondent to pay compensation to the applicant ended and some references to when the witness understood the applicant had played or was about to play netball. It is of interest that almost all of the entries with respect to the applicant are highlighted with an asterix. I reject the submission that the written entries of Ms Spooner should be accepted as those of a manager inexperienced in compensation claims. I prefer the view that Ms Spooner is overzealously and obsessively critical towards the applicant. Her alleged inexperience with respect to compensation claims did not preclude her volunteering to the respondent 9 reasons why the claim should not be accepted (T-4 pp 14-15). It is interesting to note that the overtime worked on Saturday 13 September 1997 throughout these proceedings was said to have occurred between 8am and 12 noon. These times were given in evidence and are referred to in the notes made by Ms Sponger annexed to the compensation claim form. The diary entry of 13 September 1997 records that overtime was worked between 8am and 1pm. The disparity between the hours recorded as overtime was not explained by the evidence.
The management practices of Ms Spooner as may be depicted from the diary and from her written reports to Comcare have caused me to attach little or no weight to her evidence. She was more intent on prosecuting the respondent's case than being an impartial witness. The witness said in evidence that she "had no problems" with her relationship with the applicant (refer paragraph 60). As a fact this can not be so. The diaries bear testament to the fallacy of that aspect of the witness's evidence. It would appear that the relationship between the applicant and Ms Spooner is more consistent with the picture depicted by the evidence of the applicant at paragraph 30.
On balance I prefer the evidence of Mr Sandow. He was not engaged by either party to give evidence as a consultant and gave his opinion based entirely upon his professional experience and upon his findings at surgery. I also found his evidence to be sound, balanced and based on his professional experience. It was his opinion that the employment did not produce a temporary aggravation of pre-existing degeneration but rather the symptoms beyond September 1997 had their origin in the employment and were responsible for the applicant's continuing pain and the need for surgery. I am also satisfied that the periods of incapacity subsequent to 13 September 1997 are referable to the injury and its treatment.
It is clear from the evidence that the applicant did have a pre-existing bony shoulder injury, which became apparent upon arthroscopy with Mr Sandow in October 1998. That bony injury was responsible for rubbing against or fraying of the rotator cuff which was responsible also for production of pain and symptoms.
In all of the circumstances I am satisfied the decision under review should be set aside and in substitution I am satisfied that the applicant suffered injury arising out of and in the course of her employment which was responsible for incapacity and medical and like treatment at all relevant times prior to the first day of hearing of this application. If there has been any incapacity beyond that date and/or any claim for weekly compensation or claim for medical and like expenses beyond that date for the shoulder injury – for which there has been no evidence – I direct that such claim be reconsidered by the respondent in accordance with these reasons. The respondent shall pay the applicant's costs.
I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         ...Carolyn Irons .......... [Secretary].................
Date/s of Hearing  26/4/99 & 3/6/99
Date of Decision  25 February 2000
Counsel for the Applicant        Rachel Lloyd
Solicitor for the Applicant         J N Zigouras & Co.
Counsel for the Respondent    Jennifer Greaves
Solicitor for the Respondent    Barker Gosling