Harding and Comcare (Compensation)
[2019] AATA 4391
•29 October 2019
Harding and Comcare (Compensation) [2019] AATA 4391 (29 October 2019)
Division:GENERAL DIVISION
File Number: 2017/7292
Re:Christopher Harding
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:29 October 2019
Place:Perth
The Reviewable Decision is set aside and in substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), for the condition of subacromial bursitis of the right shoulder, as diagnosed by Dr Slinger.
The Tribunal awards the Applicant costs in accordance with s 67(8) of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
..................................[sgd]......................................
Senior Member Dr M Evans
CATCHWORDS
COMPENSATION – Workers’ Compensation – Commonwealth employee – whether Comcare liable to pay compensation – s 14 of Safety, Rehabilitation and Compensation Act 1988 (Cth) – right shoulder condition – conflicting expert medical evidence regarding correct diagnosis – preferred medical evidence – whether an “ailment” – whether a “disease” or an “injury (other than a disease)” – injury simpliciter – relationship between Applicant’s employment and injury – whether injury sustained moving a desk attachment at work – whether injury arising out of, or in the course of the Applicant’s employment – decision set aside and substituted – costs awarded
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 4, 5A, 5A(1)(a), 5A(1)(b), 5B(1), 14, 14(1), 67(8)
CASES
Australian Postal Corporation v Burch (1998) 156 ALR 483
Comcare and Mooi (1996) 69 FCR 439
Kavanagh v Commonwealth (1960) 103 CLR 547
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Vo and Comcare [2005] AATA 773Re Winsall and Comcare (2003) 72 ALD 696
SECONDARY MATERIALS
Peter Sutherland and John Oman Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (11th ed, Federation Press 2018).
Administrative Appeals Tribunal, Guideline: Persons Giving Expert and Opinion Evidence, 30 June 2015.
REASONS FOR DECISION
Senior Member Dr M Evans
29 October 2019
SUMMARY
The Applicant made a Workers’ Compensation claim for a shoulder injury. He claimed that the injury occurred as a result of him lifting a desk attachment when working at the Department of Human Services (the Department). The Respondent, through its insurer, Allianz Australia Insurance Ltd (Allianz), made a decision to deny liability to pay the Applicant compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The Applicant is seeking review of that decision in the Administrative Appeals Tribunal (the Tribunal).
There are numerous medical records before the Tribunal. Some contain inconsistent spelling, for example, “tendonosis” and “tendinosis”. The Tribunal has retained the same spelling as the original sources.
THE APPLICATION
On 16 July 2017, the Applicant submitted a Workers’ Compensation claim for a “shoulder/back injury” affecting “predominantly the right shoulder” (T4, page 8-14).
He stated that the injury occurred when “moving a desk attachment at request of manager awkward and heavy attachment right shoulder injured”, and that he first noticed symptoms on 25 May 2017 at 10.00am (T4, page 9). This will be referred to as the lifting incident.
On 1 September 2017, a case manager of Allianz, being a delegate of the Department under the SRC Act, made a recommendation that the Respondent should deny the Applicant’s claim, and in this recommendation restated the claim as being for “right shoulder subacromial bursitis secondary to calcific tendonosis” (T17, page 131-132).
Consequently, the Applicant’s claim (which was again stated as “right shoulder subacromial bursitis secondary to calcific tendonosis”) was subsequently denied by a delegate of the Respondent (the Delegate) in a determination dated 5 September 2017 (T17, page 139).
In a letter to the Respondent’s “Reconsiderations Team” dated 12 September 2017, the Applicant requested “a reconsideration of my claim for injury to my right shoulder sustained during my duties at work for the Department of Human Services”. He further stated that, “I do not believe I have been assessed on the correct diagnosis of ‘subacromial bursitis secondary to calcific tendonosis’” (T18.1, pages 147).
On 10 October 2017, a Delegate affirmed the determination of 5 September 2017 (T21, page 173). This is the Reviewable Decision currently before the Tribunal.
The Applicant was advised that the determination of 5 September 2017 had been affirmed in a letter dated 11 October 2017 (T21, page 175).
On 15 November 2017, the Applicant, through his legal representatives, lodged an application for an extension of time to make an application for review in the Tribunal. The reason was “seeking legal advice and specialist appointment. Paperwork required for legal advice to be lodged” (T22, pages 178-179).
On 24 November 2017, the Tribunal granted an extension of time until 15 January 2018 (T23, page 180).
On 8 December 2017, the Applicant, through his legal representatives, lodged an application for a review of the Reviewable Decision (T1, pages 1-2).
ISSUES
The issue that requires determination by the Tribunal is whether the Respondent is liable to pay compensation to the Applicant for his right shoulder condition, in accordance with
s 14 of the SRC Act.This requires consideration of the appropriate diagnosis of the Applicant’s shoulder condition and whether the condition is an:
(a)injury (other than a disease) (s 5A(1)(b) of the SRC Act); or
(b)ailment (as defined by s 4 of the SRC Act), or an aggravation of an ailment which satisfies the definition of a disease (s 5B(1) of the SRC Act).
MATERIAL BEFORE THE TRIBUNAL
The hearing of this application was on 6, 7 and 8 May 2019.
Mr Morrissey appeared as Counsel for the Applicant, and was assisted by his instructing solicitor, Mr Wall.
Dr Henderson appeared as Counsel for the Respondent, and was assisted by her instructing solicitor, Ms Pengli.
The Applicant gave evidence and was cross-examined on the first day of the hearing.
The Applicant also called Dr Barrie Slinger (Dr Slinger), Orthopaedic Surgeon, as a witness on the second day of the hearing.The Respondent called Dr Phillip Meyerkort (Dr Meyerkort), Consultant Occupational Physician, who gave evidence on the second day of the hearing, and
Dr Anthony Cairns (Dr Cairns), Consultant Orthopaedic Surgeon, who gave evidence on the third day of the hearing.The Tribunal admitted the following documents into evidence at the hearing:
(a)
Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated
21 December 2018 (Exhibit A1);
(b)Witness Statement of the Applicant dated 23 March 2018 (Exhibit A2);
(c)Report of Dr Slinger dated 16 April 2019 (Exhibit A3);
(d)Briefing letter to Dr Slinger dated 6 March 2019 (Exhibit A4);
(e)Report of Dr Slinger dated 16 May 2018 (Exhibit A5);
(f)Briefing letter to Dr Slinger dated 26 March 2018 (Exhibit A6);
(g)Chapter from the AMA Guides to the Evaluation of Disease and Injury Causation titled "Shoulder Tendinopathy, Impingement, and Rotator Cuff Tears", pages 318 to 330 (Exhibit A7);
(h)Letter from Mr Chong, Orthopaedic Surgeon, to the Applicant’s General Practitioner Dr Russell Wallis (Dr Wallis) dated 30 November 2017 (Exhibit A8);
(i)Section 37 Documents (T-documents) numbered T1 to T23, comprising 180 pages (Exhibit R1);
(j)Respondent’s SFIC dated 1 February 2019 (Exhibit R2);
(k)Report of Dr Cairns dated 17 August 2018 (Exhibit R3);
(l)Briefing letter to Dr Cairns dated 25 July 2018 (Exhibit R4);
(m)Patient Health Summary for the Applicant from Brecken Health Care/MediLoss Australia printed on 20 April 2018 (Exhibit R5); and
(n)Open Access Online Journal Article, titled “Calcific Tendinitis of the Shoulder”, referred to by Dr Meyerkort in his report dated 28 August 2017 in T14, page 120 (Exhibit R6).
The following written closing submissions were subsequently filed by the parties:
(a)Applicant’s closing submissions dated 4 June 2019;
(b)Respondent’s closing submissions dated 25 June 2019; and
(c)Applicant’s responsive closing submissions dated 15 July 2019.
APPLICABLE LEGISLATION
Section 14(1) of the SRC Act provides that:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 5A(1) of the SRC Act defines an “injury”:
(1)In this Act:
“injury” means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(Original emphasis.)
“Disease” is defined in s 5B of the SRC Act as follows:
(1) In this Act:
“disease” means:
(a) an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e)any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
“significant degree” means a degree that is substantially more than material.
(Original emphasis.)
Section 4 of the SRC Act includes the following definitions:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
(Original emphasis.)
EVIDENCE
The determination of the issues is largely dependent on the interpretation of the evidence before the Tribunal. Consequently, the Tribunal will now examine the documentary evidence before it, as well as the evidence given by the witnesses at the hearing, being the Applicant, Dr Slinger, Dr Meyerkort, and Dr Cairns.
Documentary medical evidence
The Applicant is a 35 year old man (T4, page 8) who commenced employment with the Department on 16 June 2008 (T4, page 13).
On 22 September 2008, the Applicant completed a form requesting permission to engage in outside employment, namely “Playing and Teaching Music” and “Recording music/ Bands” (T6.9, page 45). With respect to duration, the Applicant stated, “Varied, generally weekend work”. The Applicant’s request to engage in this outside employment was approved on 8 October 2008 (T6 .9, page 47). A further application with respect to “Selling Products on EBay” for “Approx 1-2 hrs per week after work” was approved on 6 June 2012 (T6 .11, page 51).
On 1 August 2016, the Applicant reported occasionally having stiffness in his right shoulder during “mouse/keyboard usage” with the date of the incident being recorded as 29 July 2016 (T6.13, page 55). The section of the incident report completed by the Human Resources team stated that no rehabilitation was required.
The Applicant had an ergonomic worksite assessment on 4 August 2016 after which some changes to the Applicant’s workstation were recommended, including a new mouse and keyboard (T6.3, page 30-35). The report noted that the Applicant “advised he spends a significant amount of time on the computer at home, both for Home administration tasks and online computer games” (T6.3, page 28).
On 27 October 2016, the Applicant reported “muscle stiffness” in his “lower back and right shoulder” (T6.14, page 56). In the section reporting how he sustained the injury the Applicant’s recorded “Awkward position required to access screws to raise/lower monitor height”. As with the previous report of 1 August 2016, the section of the incident report completed by the Human Resources team stated that no rehabilitation was required (T6.14, page 56).
On 8 February 2017, an ergonomic/manual handling assessment was undertaken for the Applicant. The purposes of the assessment were to assess manual handling techniques utilised by the Applicant when he was carrying out his duties as an IT support person and to recommend safe handling technique modifications (T6.7, page 39). The report recommended techniques to lower back strain when adjusting monitor arms and also recommended the purchase of a slide board or trolley on wheels, to enable easier access to cords and leads under the desk (T6.7, page 40).
At the time of the lifting incident on 24 May 2017, the Applicant was employed as a “Corporate support officer” (T4, page 13). This was more particularly described as “deals with I.T issues and completes general admin duties” (T5, page 15). The Applicant’s normal working hours were 37.5 hours per week (T5, page 15).
The Applicant completed an incident report on 26 May 2017 (T6.5, page 36). This stated the date and time of the incident as 24 May 2017 at 11.00am. Relevant parts of the incident report were as follows:
State briefly what you were doing e.g. interviewing customer:
SITTING AT DIFFERENT DESK
…
What incident or injury did you sustain? (Nature of Incident or Injury):
RIGHT SHOULDER PAIN GRADUALLY GETTING WORSE OVER 3 DAYS
Part of body affected:
RIGHT SHOULDER
Describe how you sustained the Incident or Injury (Mechanism):
May have occurred earlier in week when moving a sit/stand workstation to another desk (sit on top style), or other heavy lifting required as part of duties.
Pain gradually getting worse since Wednesday approx. 11am.
Describe object, substance or circumstances involved (Agency):
Working at different work station when pain became noticeable/pronounced.
In the Applicant’s Workers’ Compensation claim submitted on 16 July 2017, he described the task he was doing when injured as “Moving a desk attachment at request of manager”, and “awkward and heavy attachment, right shoulder injured” (T4, page 9).
In response to the question, “when did you first notice your symptoms/injury?” the Applicant answered, “25/5/2017 10:00am” (T4, page 9). The time of the Applicant’s symptoms is discussed in further detail below.
In his claim form, the Applicant stated that he first sought medical treatment from General Practitioner, Dr Kyaw Kyaw Oo (Dr Oo) on 26 May 2017 (T4, page 10).
The surgery consultation record completed by Dr Oo on 26 May 2017 (Exhibit R5) stated the following:
Here for
Neck and shoulder pain
States has right shoulder pain for 2 days
Not ure [sic], moved heavy things at work/? Sleep posture
No history of injury
O/E [on examination]
Well
Neck examination – stiff when move to left side
Shoulder – able to do all range of movement
Imp – m/s pain
Plan
NSAID and rest
Heat compression
Review if not better
Dr Oo stated “muscle pain” under the heading, “reason for visit” and prescribed “Naprosyn 500 mg Tablet 1 Three times a day” (Exhibit R5).
A Compensation Rehabilitation Assessment Report (the Assessment Report) dated
2 August 2017 (T7, page 67) records that the Applicant described the pain as “excruciating” the day after the lifting incident, but that he attended work that day. It records that the Applicant attended his General Practitioner that afternoon and took the rest of the day off work, and that he had a further three days off work after having a reaction to the anti-inflammatory medication. When he returned to work he “continued to experience ongoing pain in his shoulder” (T7, page 67). The Assessment Report records that the Applicant’s “right shoulder flared up and he experienced increased pain” on
11 July 2017 after the first two physiotherapy sessions, and that he had not returned to work as at the date of the report (T7, page 67).
On 9 June 2017 the Applicant attended Dr Hajime Yamauchi, General Practitioner, who noted “still having Rt shoulder pain” which “occurred on 24/5/17” and “when [the Applicant] lifted a heavy object while working”. The doctor noted “tenderness on superior aspect of scapia”. The consultation notes indicate that the Applicant was written a referral letter to have physiotherapy (T10.13, page 99).
Also on 9 June 2017, Dr Yamauchi completed a first certificate of capacity. The certificate recorded the date of injury as 24 May 2017. Under the heading “what happened?”,
Dr Yamauchi recorded “Sudden onset of Rt shoulder pain when lifting a heavy object”, and under the heading “Worker’s symptoms” the doctor recorded “ongoing pain on Rt shoulder and neck”. The diagnosis was recorded as “Soft tissue injury on upper back”.
As part of the injury management plan, physiotherapy and pain killers were recommended (T3, pages 6-7).
On 9 June 2017, the Department agreed to reimburse two sessions of physiotherapy (T10.5, page 94).
On 12 June 2017, the Applicant saw Senior Physiotherapist Marie Van der Merwe
(Ms Van der Merwe) (T10.6, page 95), who recorded the following in her consultation notes (T10.13, page 100):
Acute onset of pain right Trapezius and Lev Scap approx 2 weeks ago.
Had to lift a heavy object that was standing on a table - felt pain build up over the afternoon.
Pain mostly right scapular and Traps region.
Works at a call centre - office bound and IT duties.
Lifting restrictions at 5 kgs.
At work.
Painful when sleeping on his back - most pain at night.
General ADL not too uncomfortable.
Pain is improving
Had allergic reaction last week to anti-inflam meds - stopped.
Has used ice and Deep Heat.
Shoulder active movements for and pain free.
Shoulder abd to 90° with retraction - some discomfort.
Spasm and tenderness on palpitation right Traps and Lev Scap at right scapular sup pole.
Under the “reason for visit” Ms Van der Merwe noted “Trapezius Spasm” (T10.13, page 100).
The Applicant also attended physiotherapy on 15 June 2017. The consultation note from Ms Van der Merwe dated 15 June 2017 stated (T10.13, page 101):
Right Trapezius spasm, not feeling any better.
I am unable to find any other pathology, other than true spasm - to persevere with management.
To request the Dept for a further 2 sessions under the EIP.
Still tender on palpation right upper Traps.
On 16 June 2017, Ms Van der Merwe wrote to the Department, stating that after the Applicant’s physiotherapy sessions on 12 June and 15 June 2017 (T10.6, page 95):
…He has made only slight progress, and I feel he should respond to Physiotherapy Intervention if we are able to persevere a little more with him. It appears to be a muscle spasm only, and I do not envisage any complications with this injury.
I would like to request another 2 physiotherapy sessions…
In a letter dated 19 June 2017, the Department agreed to reimburse the two further physiotherapy sessions requested by Ms Van der Merwe (T10.7, page 96).
On 10 July 2017, a further WorkCover WA progress certificate of capacity was completed by Dr Wallis which recorded a diagnosis of “Right shoulder pain? SAB”, that the Applicant “Has had physiotherapy – not much improvement”, and that he is “awaiting result of imaging” (T6.15, page 57).
An ultrasound and x-ray of the Applicant’s right shoulder was undertaken on the afternoon of 12 July 2017 (T6.17, page 61) which stated in part:
…
Ultrasound Right Shoulder:
There is thickening of the subacromial bursa compatible with bursitis. Some amount of effusion is noted. Along the posterior aspect there is significant bursal thickening. On abduction of the arm patient was only able to elevate arm to 60°. Significant bursal impingement occurred during elevation of the arm.
Calcific tendinosis of the supraspinatus tendon is noted, but no tendon tear identified.
Rest of rotator cuff intact.
Biceps, subscapularis, teres minor and infraspinatus are normal.
No shoulder joint effusion seen.
Imaging Impression:
Significant subacromial bursitis with bursal impingement upon elevation of the arm.
Can be amenable to cortisone injection to reduce inflammation and alleviate patient’s symptoms.
(Original emphasis, underlining added.)
A further WorkCover WA progress certificate of capacity was completed by
Dr Wallis on 12 July 2017 (T6.16, pages 59-60) which was similar to the certificate of
10 July 2017 but recorded that “pain has worsened”, and that he was “awaiting the results of imaging”.
A WorkCover WA progress certificate of capacity completed by Dr Wallis with a date of assessment of 14 July 2017 records a diagnosis of “right shoulder subacromial bursitis with calcific tendinosis of the supraspinatus” (T6.6, page 37). The progress report section of the certificate states under the heading “activities/interventions”: “Has had physiotherapy - not much improvement For [sic] x-ray and U/S to clarify diagnosis Pain has worsened - given voltaren and Panadeine forte”. Next to this section, under the heading “actual outcome”, the following is recorded (T6.6, page 37):
Imaging has shown SAB with calcific tendinosis of the supraspinatus
Requires cortisone injection then rest
R/V next Friday
An ultrasound report recorded that the Applicant had an ultrasound on his right shoulder on 17 July 2017 (T10.2, page 93). The report noted:
There is a subacromial bursitis with thickened bursal wall and bunching on abduction. The biceps tendon is enlocated in the bicipital groove; the tendon fibres are intact, there is no fluid in the biceps tendon sheath.
The subscapularis and infraspinatus tendons appear normal.
There is no fluid in the glenohumeral joint posterity. The suprascapular notch appears normal. The AC joint shows minimal bulging of the cap shall there was tenderness to probe pressure. The supraspinatus tendon shows no tears. There is a linear echogenic focus within the tendon at the insertion that may reflect either a fibrotic scar or possible enthesopathy. It does not have the typical appearance of calcific tendinitis or soft calcium. There is no shadowing present.
Comment: there is a subacromial bursitis.
(Underlining added.)
The ultrasound report went on to state that a “…25G needle was inserted into the right subacromial bursa and a combination of Marcain and Celestone was injected” (T10.2, page 93).
Further background, including the treatment sought by the Applicant subsequent to the lifting incident, was provided in a Comcare Early Contact Reference Sheet completed on 18 July 2017 (T5, page 15) which states in part:
Injury Background: [the Applicant] advised on the 25/05/2017 he was asked by his manager to move a desk attachment he advised as he was moving the attachment he felt pain in his right shoulder and back he advised the pain got progressively worse over the coming days.
[The Applicant] advised he seen his GP the following day (Friday) who prescribed him with some anti-inflammatories he advised he had an allergic reaction to the medication and stopped taking it immediately.
[The Applicant] advised the Department paid for 4 physiotherapy sessions however he has had no relief from any of the 4 sessions.
[The Applicant] advised his GP sent him for scans and x-rays he advised the scans showed ‘subacromial bursitis with bursal impingement upon elevation of arm.’
[The Applicant] advised he had a cortisone injection yesterday unable to tell at this stage if it has provided any relief.
Injured area: Right shoulder / Back
Symptoms / Current Functional Limitations: Pain in right shoulder…
A Workcover WA Progress Certificate of Capacity signed by General Practitioner
Dr Alejandra Olgiati on 21 July 2017 (T6.18, pages 62-64) states under the heading “activities/ interventions”: “Has had physiotherapy - not much improvement For x-ray and U/S to clarify diagnosis Pain has worsened - given Voltaren and Panadeine forte”.
Under the heading, “actual outcome”, the certificate states:
Imaging has shown SAB with calcific tendinosis of the supraspinatus
Patient had Steroid injection R shoulder 5 days ago, according to him R
shoulder pain is the same not improvement, advised to see a
Physiotherapy again next week
R/V in a week
A Workcover WA Progress Certificate of Capacity indicates that the Applicant was assessed again by Dr Wallis on 26 July 2017. The diagnosis was stated as “Right shoulder subacromial bursitis with calcific tendinosis of the supraspinatus” (T10.12, pages 97-98). The progress report stated, in part, “Cortisone injection did not provide substantial relief” and “change to different physiotherapy has gone well”. In this certificate, Dr Wallis stated that the Applicant had some capacity for work from 31 July 2017 to 25 August 2017 on modified duties, and that he had no capacity for work from 26 July 2017 to
30 July 2017.
At the request of Allianz, Dr Wallis completed a questionnaire on 26 July 2017 for the purpose of planning the Applicant’s return to work (T10, pages 88-89). Dr Wallis again stated a diagnosis of “Right shoulder subacromial bursitis”. With respect to whether the mechanism of injury was consistent with the diagnosis Dr Wallis recorded, “Yes… Constant lifting had caused the injury then it was exacerbated by a heavy object on the 24/05/17 x 30kg.”
In answer to a question concerning whether the Applicant’s employment was a cause of the current diagnosis, Dr Wallis stated “Yes… Repetitive work. Lifting above head at times. More so constant lifting of heavy boxes and repetitive task. Moving around IT equipment” (T10, page 90).
A letter from Jonas Blandford, Musculoskeletal Physiotherapist, dated 26 July 2017 (T6.19, page 65) states that he saw the Applicant that day “regarding right upper trapezius and thoracic pain that commenced early June while lifting at work”. The letter stated in part:
… On reassessment today [the Applicant] had full active range of shoulder movement with positive rights cervical quadrant. There was also marked tenderness to palpation over the right C7/T1 facet joint.
Peripheral neurological examination was normal, however [the Applicant] reported intermittent pins and needles in C8 dermatome and more of a constant ache over his ulnar nerve around the elbow. I note findings on the current ultrasound of the right shoulder, however on today’s assessment I believe [the Applicant] is suffering from C8 radialopathy on the right side most likely caused by a disc bulge at C7/T1 intermittently irritating the exiting nerve roots without constant compression.
Treatment today consisted of mobilisation of the right C7/T1 facet joint, mobilisation of the exiting C8 nerve roots and some myofascial technique.
A “return to work suitable duties plan” was completed by a Rehabilitation Consultant on
27 July 2017. A copy of this plan was noted to have been provided to Dr Wallis (T11, pages 103-105). The plan was updated on 18 August 2017 (T12, page 106-109).
The Applicant had an MRI of his cervical spine on 9 August 2017. The overall comment from SKG Radiology was that (T8, page 83):
Comment: there is mild posterior disc bulging at the C5/6 level. No disc protrusion or neural impingement is identified at any level.
No cervical cord abnormality is demonstrated.
These MRI results were noted in a further WorkCover WA progress certificate of capacity signed by Dr Wallis on 11 August 2017 (T9, pages 85-86). The “activities/interventions” were recorded as “1. Physiotherapy, analgesic, ultrasound and injection”, “2. Return to work” and “3. MRI cervical spine”. Under the “actual outcome” heading the following was recorded:
1. Only slight improvement in right shoulder pain and ability to use
2. Previous return to work was not effective. Will need modified hours and duties
3. MRI showed some disc protrusion without nerve root impingement.
D/W [discussion with] Physiotherapist today he states neural irritation is still evident during treatment. I have commenced Lyrica [a pain medication] today. To continue with physiotherapy
This medical certificate certified the Applicant as having some capacity for work from
14 August 2017 to 1 September 2017 with modified duties for four hours a day, three days a week (T9, pages 85-86).
In a WorkCover WA progress certificate of capacity dated 1 September 2017 completed by Dr Wallis (T16, pages 128-129), the following was recorded under the heading “activities/interventions”:
Improving with light duties and physiotherapy
Has seen IME [independent medical examiner] - he has suggested a psychological aspect to the pain - no evidence of this
Does take Pristiq, however, been on since 2009 without any issue
Under the heading “actual outcome”, the certificate recommends an increase in the Applicant’s working hours to eight hours a day, for three days a week (T16, page 128).
A letter from Dr Allen Chong (Dr Chong), the Applicant’s treating Orthopaedic Surgeon, dated 30 November 2017 (Exhibit A8) diagnosed the Applicant with a “right periscapular musculature sprain” and recommended “physiotherapy, for ongoing non operative management”.
The Applicant’s evidence
The Tribunal had before it the witness statement of the Applicant (Exhibit A2), together with a transcript of the Applicant’s evidence on the second day of the hearing.
At the hearing the Applicant was first asked by his Counsel about the two previous incident reports from 1 August 2016 (T6.13, page 55) and 27 October 2016 (T6.14, page 56). With respect to the incident report dated 1 August 2016, the Applicant’s evidence was that “I was working a lot on Excel spreadsheets and I’d found that towards the end of the day going between the mouse and the keyboard quite regularly would result in lethargy and [the top of his right shoulder would be] feeling stiff towards the end of the day” (transcript, day 1, page 14). Following the report, the Applicant had an ergonomic assessment (see paragraph [29] above), but after “…having the desk assessment, having the desk set up correctly, and the new mouse the symptoms abated” and so he did not require any medical treatment at that time (transcript, day 1, page 14).
With respect to the incident report of 27 October 2016, the Applicant had reported “muscle stiffness” in his “lower back and right shoulder” as a result of adjusting the height of computer monitors (T6.14, page 56). He explained that this involved him “leaning over towards from the middle of the desk to the back of the desk and lift[ing] up a small metal brace and undo two bolts with an Allen key and then forcibly mov[ing] the monitor bracket up or down and then tighten[ing] those back up and, yes, to adjust the monitors” (transcript, day 1, page 15). The Applicant explained that he did not have any treatment as a consequence of this incident because:
By the next day the symptoms had abated. I didn’t feel any further effects after this. My team leader requested at the time to put this in because I had said that doing that task had - yes, I was feeling a bit discomfort after performing that task.
The Applicant then gave evidence about the lifting incident. In his witness statement,
the Applicant stated that he believed the lifting incident occurred on either Monday,
22 May 2017 or Tuesday, 23 May 2017 (Exhibit A2, paragraph [42]). In his evidence at the hearing, the Applicant agreed that he was mistaken about the day. He stated that, “at the time I did this statement I didn’t have available the incident report that I had entered into the internal system” (transcript, day 2, page 19). Under cross-examination he agreed that the written record was more reliable than his memory (transcript, day 1, page 25).
Thus, based on the contemporaneous evidence (namely, the incident report), the Tribunal accepts that the lifting incident occurred on 24 May 2017.
In his witness statement, the Applicant described the lifting incident as follows (Exhibit A2, paragraphs [40]-[45]):
40. During the week of 26 May 2017 I was required to move a sit/stand workstation attachment from one desk to another.
41. I do not know the exact weight, however, believe it would be around 25kg, and about 1m high.
42. I believe this task was undertaken on either Monday, 22 or Tuesday, 23 of May, 2017.
43. After moving the item my shoulder started to become stiff but believing this to be due to over-exertion I continued on with my normal duties without heavy lifting.
44. In the subsequent days the pain increased until it became unbearable on
26 May 2017, at which point I attended a medical appointments at Brecken Health with Dr Oo.
45. At this appointment the doctor advised my symptoms were concurrent with lifting a heavy object, the sit/stand attachment was the only heavy object I had moved that week either at work or at home.
The Applicant’s Counsel also asked him about the lifting incident during the Applicant’s evidence in chief. The following exchange is relevant (transcript, day 1, pages 19-20):
MR MORRISSEY: In terms of the action of moving the sit and stand workstation can you explain how you did that physically?
APPLICANT: So it would require me to unbolt from underneath the workstation and then leverage the sit/stand workstation across the desk and then lift it from on top of the desk down onto a trolley. I was then required to wheel the trolley over to the desk that it was required to be placed on. Lift that from the ground onto the desk and then bolt it back on.
MR MORRISSEY: Now, sorry to be pedantic but when you say you were required to lift it, how did you lift it?
APPLICANT: So I had one hand at the base after I’d pulled that arm forward and then one hand at the top of it.
MR MORRISSEY: Now, at paragraph 43 of your statement you say that:
After moving the item my shoulder started to become stiff.
APPLICANT: Yes.
MR MORRISSEY: You believe that this was due to over exertion. When you say that your shoulder started to become stiff, firstly what do you mean by stiff?
APPLICANT: So I felt muscle lethargy, it was not difficult to move but I could feel that my shoulder was, yes, perhaps - sorry, I’m not quite sure how to describe it.
MR MORRISSEY: Just in your own words, Mr Harding?
APPLICANT: Yes. So just it felt quite tight and difficulty in moving as I normally would be able to.
MR MORRISSEY: Yes. And approximately how long was it after that you lifted the workstation did it start becoming stiff?
APPLICANT: To the best of my knowledge was within an hour.
MR MORRISSEY: And in terms of your symptoms did the stiffness - what happened with the stiffness?
APPLICANT: Over the subsequent hours and the next day?
MR MORRISSEY: Yes?
APPLICANT: It became increasingly worse to the point where I needed to go to the doctor because of pain.
MR MORRISSEY: And when you say “That it became increasingly worse” you’ve spoken about stiffness?
APPLICANT: Yes.
MR MORRISSEY: Can you explain what you recall in terms of the symptoms worsening?
APPLICANT: So there was a very sharp pain in my upper right back towards my right shoulder blade and, yes, essentially I was unable to move my arm freely. Yes, by the time I attended the doctor.
Under cross-examination the Applicant agreed that he did not ask for assistance to move the desk, despite the previous incident reported on 27 October 2016 being a lifting-type incident. However his answer (in the following exchange) is somewhat equivocal (transcript, page 25):
DR HENDERSON: The incident that you say gave rise to your current injuries you didn’t ask anyone for assistance to move this 25 kilogram object; that’s correct? You weren’t refused, you didn’t ask anybody for assistance?
APPLICANT: I didn’t have any assistance at the time.
DR HENDERSON: I think you say that you moved that part of your desk at the direction of your manager; is that right?
APPLICANT: Correct.
DR HENDERSON: Did you say to your manager, “This is very heavy, will you help me move it?”?
APPLICANT: Not those words.
There is some inconsistent evidence before the Tribunal as to when the Applicant first felt pain following the lifting incident. For example, as noted above in paragraph [35], the Applicant stated in his Worker’s Compensation claim submitted on 16 July 2017 (T4, page 9) that he first experienced symptoms the following day, being 25 May 2017, at 10am.
In his evidence at the hearing, the Applicant explained that, “…whilst there was no immediate pain I had observed that I had over extended myself but at the - within the short time I wasn’t aware that it was going to be a major injury” (transcript, day 1, page 22). He admitted that, “It is a bit hazy after this amount of time” when asked if he could recall the moment of time that the lifting injury occurred (transcript, day 1, page 22). The Applicant recalled returning to his desk to work on an Excel spreadsheet and that, “It’s so shortly afterwards when the pain and the - sorry, when the discomfort started to occur” (transcript, day 1, page 22).
The following exchange under cross-examination is also relevant with respect to the Applicant’s difficulty in recollecting (transcript, day 1, page 44):
DR HENDERSON: Dr Cairns has said on the next page, so page 3 of the report, page 191 of the T documents, he says that you clarified that: Following the incident you didn’t notice any immediate pain but about four to five hours after the incident you became aware of sensations described as fatigue or tightening.
Now that’s not consistent with what you’ve said today. You said today that it was about an hour later. Do you actually remember how long later it was?
APPLICANT: Specific timeframe, no.
DR HENDERSON: Okay. Do you remember what time of day you moved the part of the desk that was heavy?
APPLICANT: I don’t.
DR HENDERSON: Your original report says 10 am. Do you know of any reason why that wouldn’t be correct?
APPLICANT: No.
DR HENDERSON: You don’t remember whether it was before or after lunch?
APPLICANT: I don’t recall.
DR HENDERSON: You don’t remember whether you had lunch that day? Do you recall whether you had pain while you were still in the workplace that day?
APPLICANT: I don’t.
The Applicant also had difficulty recalling if the pain was constant in the hours after the lifting incident (transcript, day 1, pages 22-23):
DR HENDERSON: Well, perhaps if I use myself as an example, that might make it clearer. So I had a dead shoulder the other day, no particular explanation, I just woke up with it, and in the course of the morning it went away and then I was doing some work at my desk and I noticed it again?
APPLICANT: Yes.
DR HENDERSON: And now I could say to you, well, I don’t actually remember if it ever completely went away or if I just stopped noticing it?
APPLICANT: Yes.
DR HENDERSON: Is that a possibility in your case, that you stopped noticing it but something might’ve still been there?
APPLICANT: Yes, that is a possibility. Yes.
DR HENDERSON: Is it also a possibility that they might have been too different feelings that you had? It hurt at the time you were doing it, and then something else hurt later in that day?
APPLICANT: There is a possibility.
Under cross-examination the Applicant was also asked about whether he had previously experienced the same feeling of over-exertion in his shoulder. The Applicant gave the examples that he had experienced a feeling of over-exertion before, whilst undertaking other activities such as chopping wood or moving furniture around to vacuum or redecorate, but the pain had not been to the extent that he had experienced after the lifting incident (transcript, day 1, pages 31-32).
Other than the evidence of the Applicant, there is no objective evidence before the Tribunal regarding the weight of the desk attachment moved during the lifting incident. The Applicant estimated the weight of the desk attachment, as evidenced in the following exchange (transcript, day 1, page 23-24):
DR HENDERSON: So when you say about 25 kilos what are you basing that on? Just an estimate.
APPLICANT: Yes, based on the materials that it was made out of and the size of it. That was my best guess.
DR HENDERSON: Okay. If I told you that it was a six kilogram object is it possible that that would be correct?
APPLICANT: I don’t believe so.
DR HENDERSON: Okay. If I told you it was a 50 kilogram object is it possible that that would be correct?
APPLICANT: I don’t believe so.
DR HENDERSON: I think you had two children aged one-and-a-half and five at the time; is that right?
APPLICANT: Correct.
DR HENDERSON: Which one of those children was the desk attachment closer to, in terms of weight?
APPLICANT: At the time closer to my five year old perhaps.
DR HENDERSON: Okay. Were you still picking up your five year old regularly? Have you got a feel for the sort of weight?
APPLICANT: It’s - yes, I mean, that was, yes, two years ago and she’s grown quite a bit since. They both have, yes.
DR HENDERSON: Okay. Is it fair to say that you didn’t do a lot of heavy lifting outside the workplace?
APPLICANT: In regards to my personal life?
DR HENDERSON: At that time. Yes, in your personal life?
APPLICANT: There - I wouldn’t say that I never did any heavy lifting. I - there were times when I would be lifting things around the house or going out
DR HENDERSON: Can you give us an example? So firewood, moving those sporadically.
APPLICANT: Yes, general home maintenance, gardening.
DR HENDERSON: So is there anything in your home life that you can draw on as an example of something that’s sort of the same weight as that desk attachment?
APPLICANT: I’m sorry, I’m
DR HENDERSON: Not particularly?
APPLICANT: Yes, I - yes, it’s
DR HENDERSON: Do I understand correctly that’s because of the awkward shape of the desk attachment, it’s just very difficult for you to do a comparison between something that shape and size and something that’s a different shape and size?
APPLICANT: Yes. Yes. Yes, I haven’t seen anything in my personal life that closely resembles the size and shape of this desk attachment to compare it to.
DR HENDERSON: Sure. Have you made inquiries about what the desk attachment weighed?
APPLICANT: No, I haven’t.
The Respondent has submitted that the Applicant’s evidence about the weight of the desk attachment was not consistent, noting that the Applicant told Dr Slinger that it was around 20kg (Respondent’s closing submissions, paragraph [3.9]). The Respondent further submitted that no evidence about the weight and shape of the desk was adduced by the Applicant, and that it was therefore open to the Tribunal to infer that the Applicant’s current recollection of the weight of the desk is not accurate (Respondent’s closing submissions, paragraphs [3.11] and [3.12]). Conversely, the Tribunal observes that the Respondent did not submit any evidence about the weight of the desk attachment either. Additionally, the Tribunal agrees that the veracity or accuracy of the Applicant’s estimate of the weight of the desk attachment was not put to him during cross examination with sufficient specificity (Applicant’s closing submissions, paragraph [1.11]) to enable the Tribunal to draw such a conclusion. Consequently, the Tribunal is not willing to draw an adverse inference against the Applicant that his recollection about the weight of the desk was inaccurate. The Tribunal has made further comment below about the credibility and veracity of the Applicant.
The Applicant gave evidence that his shoulder injury had restricted him from engaging in some out-of-work activities. For example, it had become more difficult to pick up his
18 month old child, to vacuum, to lift other items such as shopping, and to cast with a fishing rod (transcript, day 1, pages 37-39). In his witness statement, the Applicant also described being unable to play percussion and guitar for enjoyment until recently, due to experiencing pain whilst playing (Exhibit A2, paragraph [81]).
In the weeks leading up to the injury, the Applicant described struggling at home with a sick child, and stated that as a result he had not been sleeping well (see Exhibit A2, paragraphs [69]-[71]). Under cross-examination, the Applicant confirmed that it was his
18 month old child who was sick, and that his sleep was interrupted because the child was sleeping in the bed with the Applicant and his wife. The Applicant said that it was a possibility that he was carrying his child around more than usual (transcript, day 1, page 29).
In his evidence at the hearing the Applicant also confirmed that he had been taking the antidepressant Pristiq since the death of his father in 2009 (transcript, day 1, page 40), and that he separated from his wife in January 2018 (transcript, day 1, page 36), which, the Tribunal notes, was some time after the lifting incident.
The Tribunal makes the following findings about the Applicant’s evidence:
(a)The Tribunal found the Applicant to be a credible witness. The Tribunal’s impression was that the Applicant gave his evidence to the best of his recollection, but that he had some difficulty recalling some details due to the passage of time. Although some of his evidence about when he felt the onset of pain after the lifting incident was somewhat inconsistent, the Tribunal was not of the impression that the Applicant was being evasive. The Tribunal’s impression was that the Applicant was somewhat nervous about giving evidence and that he was trying to give accurate answers when pressed under cross-examination.
(b)Similarly, the Tribunal was not of the opinion that the Applicant had attempted to overstate the weight of the desk. It appeared to the Tribunal that the Applicant tried his best to recall the weight of the desk with reference to other items, however found it difficult to estimate the weight due to its awkward shape. Consequently, the Tribunal does not doubt the veracity of the Applicant in his estimation of the weight of the desk.
(c)
The Tribunal, having found the Applicant to be a credible witness, accepts his evidence that he experienced a feeling of tightness or over-exertion in his shoulder during the lifting incident and that he started to experience stiffness within an hour after the lifting incident. The Tribunal accepts the Applicant’s evidence that his pain increased to the extent that he needed to go to his general practitioner.
The Tribunal accepts the Applicant’s evidence that the pain following the lifting incident was unlike any other feeling of fatigue that he previously experienced in his shoulder.
(d)The Tribunal accepts the Applicant’s evidence that the symptoms he reported in the previous incident reports had resolved and that he did not require any further treatment. This finding is also, in the Tribunal’s opinion, consistent with the documentary medical evidence before the Tribunal.
(e)The Tribunal notes that there is no substantiating evidence that the outside work activities of chopping wood, vacuuming, moving furniture, carrying a sick child or sleeping uncomfortably due to the child sleeping in his bed caused or contributed to any injury or exacerbation of an existing condition.
These findings will now be tested against the expert medical evidence before the Tribunal.
Dr Barrie Slinger, Orthopaedic Surgeon
Dr Slinger’s qualifications include a Bachelor of Medicine, Bachelor of Surgery (MBBS), and he is also a Fellow of the Royal College of Surgeons of England, Edinburgh and Australia (FRCS(E), FRCS, FRACS). He obtained his Fellowship in England and Scotland in 1960 and in Australia in 1974. Dr Slinger retired from clinical practice five years ago, and since that time has been giving medicolegal opinions (transcript, day 2, pages 7-8).
Dr Slinger examined the Applicant on 15 May 2018 (Exhibit A5, page 1), approximately a year after the incident at work. He wrote two reports concerning the Applicant that are before the Tribunal. The first report is dated 16 May 2018 (Exhibit A5). The second report is dated 16 April 2019 (Exhibit A3). There is a typographical error in the report of
16 May 2018 which refers to the lifting incident as occurring on 24 May 2015, and also on 25 May 2015. As referred to above, the correct date is 24 May 2017 (see transcript, day 2, page 12).
In summary, Dr Slinger’s opinion was that the Applicant had suffered a soft tissue sprain or strain as a result of the lifting incident which developed into a subacromial bursitis (transcript, page 14; see also Exhibit A5, page 5; and Exhibit A3, page 2). He did not believe that the Applicant was exaggerating his symptoms (Exhibit A5, page 4), which he described under the heading “Present” as follows (Exhibit A5, pages 2-3):
Pain persists about the area of the right scapular, and I confirmed with him that he is right-handed. Pain radiates to the area of the right trapezius or right neck, particularly if he has not had any recent physiotherapy, aggravated by using a mouse and a keyboard, he finds it is uncomfortable in the arm and shoulder appears fatigued. The arm is probably stronger than previous, because of his continuing exercises, in which he has maintained exercises at home with the use of a Theraband, and the exercises through his physiotherapist.
Movements of the shoulder are not restricted, he does find if he maintains the arm in an elevated position, this does tend to fatigue, and is uncomfortable, and if reaching up to a cupboard he usually uses his left non-dominant hand.
The following exchange is relevant to the significance of the Applicant’s symptoms increasing after the incident (transcript, day 2, page 10):
MR MORRISSEY: Did you place any significance on his symptoms increasing over the days following the lifting incident, if we could call it that?---
DR SLINGER: Simply that it was a significant injury. It wasn’t just a minor thing that went away. It was sufficiently significant, severe if you like, that it continued and increased over a period of days.
Dr Slinger recorded that the Applicant had difficulty with the following activities, which was consistent with the Applicant’s evidence at the hearing (Exhibit A5, page 3):
At home he manages to assist about the house if required, including the gardening and mowing, although he does it less frequently, he drives his car, although finds long distances are an aggravation…
Recently he recommenced playing his guitar, has had difficulty returning to fishing from the beach because casting is difficult, and the family have not undertaken camping because of difficulty preparing the vehicle and the equipment.
With respect to the Applicant’s prognosis, Dr Slinger stated that (Exhibit A5, page 5), “The prognosis … Is that I consider he may well proceed to a full recovery, although I could not exclude the possibility of permanent minor symptomatology”. With respect to treatment,
Dr Slinger stated (Exhibit A5, page 5), “Treatment recommendations are to continue with his regular stretching and strengthening programme. Physiotherapy need not be continued on a permanent basis, but best reserved for times of symptomatic exacerbation”.
With respect to whether there was an underlying condition or degeneration, Dr Slinger commented as follows (Exhibit A5, pages 4-5):
In my opinion [the Applicant’s] symptoms have been significantly contributed to by the accident or incident on 25th May 2015.
There are no factors unrelated to work.
There was no pre-existing congenital constitutional or underlying condition.
There were pre-existing changes of calcific tendinosis, which in the chronic phase are usually asymptomatic, which were present before the incident or accident and in my opinion his symptoms are unrelated to that calcific tendinosis, rather to the underlying subacromial bursitis.
There was no suggestion of natural progression of an underlying condition or underlying degeneration, as part of the natural aging process, although it should be stated that calcific tendinosis is a developmental and possibly a degenerative condition, but in the chronic phase is usually asymptomatic, unlike the acute phase which is associated with severe excruciating pain.
Dr Slinger stated his opinion that: “[t]he diagnosis is of subacromial bursitis. I do not agree with Dr Meyerkort’s diagnosis [that the Applicant’s current condition relates to a pre-existing condition of calcific tendinosis affecting his shoulder], and there was no suggestion of a cervical radiculopathy” (Exhibit A5, page 5). In his evidence at the hearing, Dr Slinger explained why he disagreed with the diagnoses of calcific tendinosis and cervical radiculopathy (transcript, pages 12-13):
MR MORRISSEY: Yes. Then over the page, on page 5, you say at the top,
There were pre-existing changes of calcific tendinosis which, in the chronic phase, are usually asymptomatic, which were present before the incident or accident. In my opinion, his symptoms are unrelated to the calcific tendinosis, but rather to the underlying subacromial bursitis.
Can you explain why you reached that opinion?---
DR SLINGER: Calcific tendinosis (indistinct) is calcium in the muscles that I was just talking about, about the shoulder. From an orthopaedic point of view they are usually asymptomatic. They are simply a reflection of wear and tear with degeneration in the tendons about the shoulder, which we all develop because we are doing these sort of movements. To an (indistinct) surgeon the significance of that is nil except in one occasion, and that is in the acute phase. In the acute phase you can develop calcification acutely, as in commencing suddenly, and that is one of the most painful conditions possible… If you are on the spot and you are near a hospital, you can aspirate, suck out that calcium, and it’s instant relief. Or use an arthroscope and take it out. But that is the only - in my opinion, the only condition of tendinosis which is symptomatic. There are other opinions and some people believe that it can by asymptomatic, it can be symptomatic, and then it can be acute phase. Those who believe in the middle one believe that taking it out makes a difference to symptoms. That is absolutely nonsense as far as I am concerned, and most orthopaedic surgeons would agree with me. I don’t know one operation in Perth, and I have been in practice for some time, that was done purely for calcification. I think some of these opinions come from overseas, from the US. But just taking up calcium is of no - except in the acute phase is of no significance. So tendinosis, to me, means nothing except there is a bit of wear and tear, which you would expect anybody - well, anybody who (indistinct) over the age of 30, you expect a little wear and tear, and tendinosis means what I’ve just said, yes. That’s why I didn’t think that was significant.
MR MORRISSEY: Further down the page, or on the same page, your answer to questions 6, you confirm the diagnosis of subacromial bursitis. You say you do not agree with Dr Meyerkort’s diagnosis, and you say there was no suggestion of cervical radiculopathy?---
DR SLINGER: Yes.
MR MORRISSEY: What implications, or should I say, what significance would you place on there being an absence of cervical radiculopathy?---
DR SLINGER: Well, I mentioned it because a colleague, Tony Cairns, has mentioned cervical radiculopathy, and it’s also mentioned I think in one of the physiotherapist’s reports. He didn’t have cervical radiculopathy. Cervical radiculopathy is a condition of the neck, rather like the lumbar spine, in which you get irritation of the nerve, either by a piece of disc or a disc bulge, a disc protrusion, or by the degenerative process which narrows the opening where the nerve comes from. In other words, the nerve is pressed or compressed and irritated. That sends pain down the arm or the leg, and there was pain and numbness and other signs which go to that. Conditions of the neck are usually painful. Conditions of the neck which are symptomatic are painful. Some, not many, are also associated with nerve compression or irritation called cervical radiculopathy. I only mentioned that as - not as a negative, but just to say that I didn’t agree with the comment from my colleague which suggests there was cervical radiculopathy.
Dr Slinger explained the basis for his diagnosis in his evidence to the Tribunal (transcript, day 2, page 14):
MR MORRISSEY: I think you go on to diagnose a soft tissue sprain or strain?---
DR SLINGER: Yes.
MR MORRISSEY: Which you think developed into a subacromial bursitis. Can you explain to the Senior Member what a soft tissue strain or sprain is?---
DR SLINGER: If we talk about a sprained ankle, most of us have sprained ankles, you turn the ankle over and you either have a minor strain or sprain in which you stretch the ligaments or the muscles, or you have a major one in which you will tear or rupture. That is (indistinct) and severe. The same thing applies to the shoulder. The structures which are irritated, damaged in this type of injury are the ligaments or the muscles. Sometimes the joint itself can be injured. They respond with an inflammatory process, which is swelling, fluid, inflammatory cells which all go on then to help heal the situation, and building blocks go out and develop new tissues. Have I answered your question? Yes, so that is what I call a soft tissue injury. Nothing broken, but any of those structures can be damaged, minor or major. And if it is major, sometimes it needs an operation. If it’s minor, usually it heals, but not always. They go onto chronicity. In this case it went onto the inflammatory process in the bursa which I described earlier, occasioned by that - why didn’t it heal, I don’t know. Sometimes it does, sometimes it doesn’t.
Dr Slinger was of the opinion that the Applicant’s “current symptoms and restrictions… have arisen as a direct result of the injury of May 2015 [sic]” (Exhibit A5, page 4).
With respect to causation, the following question and answer from Dr Slinger are relevant (Exhibit A5, page 5):
9. Are you of the view that my client’s present condition was significantly caused by his work conditions in accordance with the history that he provided to you? Please comment on Dr Meyerkort’s view on page 8 of his report at paragraph 2(c) (d) and (g) where he states that Mr Harding’s condition is idiopathic, has no known cause, would have occurred irrespective of the report incident and was not caused by my client’s employment.
In my opinion your client’s present condition was significantly caused by his work activity. The calcific tendinosis was present prior to the work incident, and even if, and I do not accept that it is the case, that was the cause of symptoms, that was asymptomatic prior to the work accident and would have remained asymptomatic indefinitely.
In my opinion the correct diagnosis is that of subacromial bursitis.
Dr Slinger further clarified that he did not think that the Applicant was suffering from a pre-existing condition that had recurred, accelerated or had been aggravated (Exhibit A5, page 6).
Dr Slinger wrote a further report dated 16 April 2019 (Exhibit A3), after receiving a briefing letter from the Applicant’s legal representatives dated 6 March 2019 (Exhibit A4) whereby he was asked to comment on the report of Dr Cairns.
Dr Slinger disagreed with Dr Cairns’ diagnosis of “cervical spondylosis/inter-vertebral disc degeneration at the C5/6 segment or cervicobrachialgia”. Dr Slinger stated (Exhibit A3, page 1):
I do not agree with the diagnosis of so-called cervical spondylosis/intervertebral disc degeneration at the C5/6 segment or cervicobranchialgia.
I disagree with the diagnosis because of the history provided, which is quite typical of an injury to the shoulder, as I have detailed in my report, a specific lifting injury, which is something that would initiate symptoms at the shoulder.
Symptoms are consistent with a strain to the shoulder, were identified related to the shoulder, whilst virtually all the medical reports from Brecken Health Care, including those from Dr Wallis, identify the shoulder as the site of symptoms, and that is confirmed also on the WorkCover certificates.
The fact that his treating medical practitioners identify the shoulder as the source of symptomatology is to me, cause and effect, importantly identifying the source of symptomatology, at or soon after the onset of symptoms, rather than trying to make or propose a diagnosis at a later date.
Dr Slinger also gave his opinion with respect to Dr Cairn’s opinion that the Applicant has an “exacerbation of the pre-existing condition of symptomatic cervical spondylosis involving the C5/6 segment, and or aggravation…” Dr Slinger commented (Exhibit A3, pages 1-2):
The fact that this man has minor degeneration in the cervical spine is an incidental finding, entirely common on radiology of the cervical, or indeed the lumbar spine, and an inevitable feature of the aging process, and one which is not necessarily symptomatic, unless rendered so by appropriate injury, and there is no evidence to my mind, that such an injury did occur to the cervical spine, whereas the hypothesis that this was an act of God, or a spontaneous intervention, is pure speculation and to my mind has no bearing in fact.
The fact is, this man described an injury at work, as I have detailed, which is entirely consistent with symptoms arising from the shoulder, as an acute strain or sprain, which in itself, might well continue to become chronic.
What can be said is, that this man did have pre-existing radiological changes in the cervical spine of minor degeneration at C5/6, as indeed the vast majority of the population will exhibit, or indeed develop. Those changes were asymptomatic and in my opinion, in the absence of the injury may well have remained asymptomatic.
Dr Slinger clarified that (Exhibit A3, page 2), “… The C5/6 degeneration is an incidental finding of no significance and unrelated to the symptoms that Mr Harding has described.”
Dr Slinger restated his diagnosis of “an acute strain or sprain of the right shoulder, with the development of a subacromial bursitis” (Exhibit A3, page 2).
The Respondent made extensive submissions about Dr Slinger’s evidence (see Respondent’s closing submissions, paragraphs [4.1]-[4.16]). In summary, one of the submissions was that Dr Slinger started with the assumption that the workplace incident caused the bursitis, rather than starting with the symptoms and then identifying the most probable causation (paragraph [4.2] and [4.8]-[4.9]). Further, the Respondent submitted that Dr Slinger did not sufficiently enquire about the Applicant’s non-work related activities which may have been causative including fishing, the lifting of his children, picking up dog food, or the Applicant’s sleep posture (paragraphs [4.3]-[4.6] and [4.11]-[4.15]). Additionally, in his evidence at the hearing, Dr Slinger expressed that he did not know that the Applicant expressed doubt to his General Practitioner about what had caused the pain, and that there was a question about whether the Applicant’s sleep posture had caused the pain (paragraph [4.11]).
In summary, the Respondent’s submission was that (paragraph [4.16]):
Dr Slinger is unable to rule out another cause of the underlying bursitis, and did not make sufficiently probative inquiries to comment on the likelihood that moving the desk cause the bursitis in the context of the Applicant’s other non-work activities and the Applicant’s early doubt about what had caused the pain.
Later in the closing submissions, the Respondent states that, “…the approach taken by
Dr Cairns demonstrates the dispassionate scientific enquiry into possible causation that was lacking in Dr Slinger’s report” (paragraph [6.8]).The Tribunal does, however, agree with the Applicant’s submission that “[i]t was never put to Mr Slinger in cross-examination that his opinions in this case were not dispassionate or scientific” (Applicant’s closing submissions in reply, paragraph [1.17(c)]). Further, when the impact of certain non-work activities was put to Dr Slinger under cross-examination, he was able to discount those activities. For example, with respect to lifting packets of dog food, “I don’t know how he lifted it but presumably he lifted it close to his chest and that wouldn’t have affected his shoulder” (transcript, day 2, page 22); regarding fishing,
Dr Slinger said it was “most unlikely” that fishing would have brought on any underlying symptoms in the shoulder (transcript, day 2, page 23); and the following exchange is relevant with respect to music (transcript, day 2, page 24):
DR HENDERSON: In your experience of shoulder injuries, is there any tendency in guitarists to suffer shoulder injuries?
DR SLINGER: I haven’t come across that, no.
DR HENDERSON: Is there any tendency in drummers to suffer shoulder injuries?
DR SLINGER: No, I haven’t come across that either.
Dr Slinger confirmed that these non-work activities were not relevant (transcript, day 2, page 24):
DR HENDERSON: On page four of your report dated 16 May 2018, exhibit A5, at the bottom of that page you indicated there are no factors unrelated to work? (Indistinct).
DR SLINGER: Yes.
DR HENDERSON: What was the significance of that to your diagnosis?
DR SLINGER: Well I didn’t think fishing or playing the guitar or the drums were relevant or anything else. He didn’t tell me anything else he did and his social activities as I’ve described, there was nothing in those that suggested that that could have caused his symptoms.
With respect to picking up a child from a cot, Dr Slinger stated that leaning forward to pick up a child from a cot is more of a risk to a person’s back in contrast to the shoulder, and that “not so much carrying but lifting out of the cot” may be relevant to the shoulder (transcript, day 2, page 21).
Additionally, with respect to sleep posture, the following exchange under cross-examination is relevant. Dr Slinger gives the opinion that sleep posture would be unlikely to cause the Applicant’s injury (transcript, day 2, page 28):
DR HENDERSON: So if he’d formed the view that he had slept awkwardly and that is what had caused the pain, at what point would you say to him, “No, I don’t think that’s what has caused the pain.” ?
DR SLINGER: I wouldn’t disagree with him.
DR HENDERSON: Okay?
DR SLINGER: He’s the patient, he decides what he thinks. If I disagree with him I’d tell him but if he’d told me that he’d also lifted something at work, well, he didn’t because you’re talking about a hypothetical situation where he woke with these symptoms. I’d say fine, that happens.
DR HENDERSON: Would you then go – if we then wanted to say what had caused that pain, would we go looking for a lifting injury?
DR SLINGER: No, I wouldn’t go looking for anything. If I’d examined at the first instance I’m not discussing a medico-legal report or a dispute with the insurance company or anything. I’m discussing a patient. He tells me what he did, I make a diagnosis that he’s slept in the wrong way. That this usually gets better by itself. Some heat, some massage, a physiotherapist and then next patient, please.
DR HENDERSON: What about in this case though? Once we are at the medicolegal reporting stage - - - ?
DR SLINGER: But this is down the track, surely?
DR HENDERSON: Yes. I’m asking you to move down the track now?
DR SLINGER: Yes.
DR HENDERSON: If we take the report of what happened at work out of the equation, do we need to go looking for an incident to cause this or could it have come for sleeping or (indistinct)?
DR SLINGER: Most unlikely. A shoulder. Most unlikely. Most – as I said – sleep awkwardly is the neck for obvious – well, for obvious reasons.
Additionally, the following exchange illustrates Dr Slinger’s opinion that the Applicant’s injury is not consistent with sleeping “awkwardly” (transcript, day 2, page 27):
DR HENDERSON: You’ve reiterated on that page one of that report that you’re reliant on the history provided by the patient. Is it fair to say that – and I apologise if this is repetitive – is it fair to say that the patient’s opinion proximate to the date of injury as to what caused the injury is important to you?
DR SLINGER: There are three ways of making a diagnosis. One is the history, the second is the examination and the third is the investigations. So the history is important.
DR HENDERSON: If at the time that the pain started the patient had said to you, “I think I slept awkwardly”, what significance would you give that?
DR SLINGER: You mean he told me that at the first consultation?
DR HENDERSON: If he said that to his GP at the first consultation?
DR SLINGER: Well I would say that was significant.
DR HENDERSON: What would that mean to you?
DR SLINGER: That he slept awkwardly. He put his – whatever he (indistinct) his neck or his shoulders which is I presume what you’re referring to – into an odd position.
DR HENDERSON: Would you then consider whether it was consistent with the symptoms he described?
DR SLINGER: I’m not quite sure what you mean.
DR HENDERSON: In this case given this set of symptoms, if a patient came to you and said this the pain I’m suffering from, this is the onset of the pain. This is how I experienced it in the first instance and the night before it happened I slept really badly – awkwardly – my impression the next morning was I had slept badly and that had caused pain, is that consistent with what he has experienced in this case?
DR SLINGER: No.
DR HENDERSON: On what basis would you challenge it?
DR SLINGER: Because most people who do that, they deal with symptoms in the neck. This man didn’t have symptoms of the neck. He had symptoms in the shoulder.
Dr Slinger’s answers indicate that these non-work activities as well as sleep posture were, in his opinion, not relevant to any underlying bursitis in the Applicant’s right shoulder.
The Tribunal raised a concern (transcript, day 2, page 2) that Dr Slinger was provided with a copy of the Respondent’s SFIC in a briefing letter from the Applicant’s legal representatives (Exhibit A4). The Tribunal’s concern that was providing the SFIC may suggest the position that Dr Slinger should take when providing his opinion (transcript, day 2, page 2). The other issue was that the Tribunal could not see any confirmation that Dr Slinger had been provided with the Administrative Appeals Tribunal Guideline: Persons Giving Expert and Opinion Evidence, 30 June 2015 (Guideline). In his reports Dr Slinger did not make any declaration stating that he had complied with the Guideline (transcript, day 2, page 2). The Tribunal raised this issue with the parties prior to Dr Slinger giving evidence so it could be addressed during evidence in chief and cross-examination.
The following exchange during the examination in chief is relevant (transcript, day 2, page 8) because it clarifies that Dr Slinger understood that his role was an objective one, and that he understood that he was required to express his opinions based on the “truth”. He also refers to signing a form, which the Tribunal infers was likely to be the declaration from the Guideline:
MR MORRISSEY: Do you understand what your role is as an independent expert?---
DR SLINGER: Yes.
MR MORRISSEY: Can you explain to the tribunal or to the Senior Member how you understand your role in providing evidence to the tribunal?---
DR SLINGER: It’s all written down on a form which I signed, and I can’t recall the exact wording, but I say that I will speak the truth and answer the questions and give my evidence to the best of my ability. There was a lot more to it than that, I know, but that is what I understand.
MR MORRISSEY: In terms of expressing opinions as an independent expert, can you explain what your understanding of that concept is?---
DR SLINGER: It’s what I believe. What I have gleaned with my years of experience and what I understand to be the truth of the - for the questions that are put to me. The truth as in medical questions, yes.
The Tribunal is satisfied that Dr Slinger gave his opinion independently and that he understood his role as providing a true opinion to the Tribunal based on the available medical evidence. The Tribunal is also satisfied that Dr Slinger’s evidence was reliable, and that his opinion was dispassionate and scientific.
The Tribunal observes that, as a general rule, a party should not provide copies of any of the pleadings, including their own or another party’s SFIC, to an expert. Often there will be a dispute between the parties about relevant facts, and a party’s SFIC will put forward a particular view or case theory based on those facts. Additionally, when briefed, the expert should be provided with the Tribunal’s Guideline as well as including a written acknowledgement that the Guideline has been complied with in any written reports.
This makes the expert’s role in providing impartial assistance to the Tribunal clear, and can provide some assistance when any question arises as to what the expert understands their role to be.
Dr Phillip Meyerkort, Consultant Occupational Physician
Dr Meyerkort’s qualifications include a Bachelor of Medicine and Bachelor of Surgery
(MB BS), a Bachelor of Science in Biophysics with Honours (BSc (Hon)), a Master of Science in Technology and Occupational Medicine (MScTech Occ Med) and a Master's degree in Sports Medicine (MSpMED). He has been a Fellow of the Australian Faculty of Occupational Medicine (FAFOEM) since 2011 (transcript, day 2, page 43).
Dr Meyerkort wrote a report dated 28 August 2017 with respect to the Applicant.
His report was prepared following a review of the Applicant’s medical records (T14, page 115) and as submitted by the Respondent, was the closest in time to the lifting incident (Respondent’s written closing submissions, paragraph [5.1]).The parties both made extensive closing submissions about Dr Meyerkort’s evidence (see Applicant’s closing submissions, paragraphs [6.32]-[6.50]; Respondent’s closing submissions, paragraphs [5.1]-[5.5]; Applicant’s closing submissions in reply, paragraphs [1.15]-[1016]).
At the hearing, Dr Meyerkort confirmed that he had not read the reports of Dr Slinger and Dr Cairns because he “did not have access” to them (transcript, day 2, page 47; see also page 48-49 for a discussion as to whether they should be provided to Dr Meyerkort in order for him to provide comment).
In his report of 28 August 2017, Dr Meyerkort stated his diagnosis as, “Mr Harding has right shoulder subacromial bursitis secondary to calcific tendonisis” (T14, page 120). Under the “Assessment” section of his report, Dr Meyerkort explained:
Imaging has demonstrated calcific tendinosis and subacromial bursitis. Calcific tendinosis is an idiopathic condition, that is, there is no specific known cause, and is common in individuals of around 40 years of age. Calcium deposits in the tendons of the shoulder, resulting in inflammation and report of severe pain. (De Carli, A., Pulcinelli, F., Rose, G.D., Pitino, D., and Ferretti, A. (2014) Calcific tendinitis of the shoulder. Joints, 2(3), 130-136.). Inflammation of shoulder tendons can then result in the development of subacromial bursitis, or bursitis may be related to repetitive activities (AMA. (2008). Guides to the Evaluation of Disease and Injury Causation).
The mode of onset of injury reported by Mr Harding is not consistent with the pathology demonstrated on imaging. Based upon currently available research, as discussed above, the probable cause of Mister Harding’s current condition relates the calcific tendinosis affecting his shoulder, and not to an incident reported to have occurred at work.
I am concerned that Mr Harding’s psychosocial state is affecting his current report of symptoms and incapacity. Rehabilitation review have indicated a high level of perceived disability and likely anxiety and depression. I understand that
Mr Harding will not remain in his current position in Information Technology, and will resume his substantive position in customer service. I am of the opinion that these aspects have the most significant influence on Mr Harding’s current condition.
(Original emphasis.)
Thus Dr Meyerkort was of the opinion that the Applicant’s calcific tendinitis (which is “idiopathic” and of no known cause) had caused his subacromial bursitis (T14, page 122) as opposed to the lifting incident at work; and that the Applicant’s recovery was impeded by psychosocial factors, namely the Applicant’s likely anxiety and depression, and change of job role. With respect to whether the Applicant’s recovery was impeded by psychosocial factors, the following exchange under cross-examination is relevant (transcript, day 2, page 59):
MR MORRISSEY: On page 7 of your report, you refer to psychosocial matters. You’re not talking there about the cause of the illness, or should I say, the condition, you’re talking about the perpetuation of the condition?---
DR MEYERKORT: The report of incapacity associated with the condition?
MR MORRISSEY: Yes. You’re not saying there, I think that the injury, the physical injury, is caused by psychological issues, it’s just there’s an interplay in the background and it can perpetuate the incapacity, at least a perception of incapacity?---
DR MEYERKORT: Yes. And I think it also comes back to the point that I was making earlier, that I’m not, or Mr Harding’s not just a shoulder, or I’m not just a sore foot. And when there are indications, as there were with Mr Harding, that there may be an increased report of disability or there’s stress and anxiety related to it, you have to look after those to look after him.
In his evidence at the hearing Dr Meyerkort agreed that the type of lifting described by the Applicant in the lifting incident could cause a soft tissue injury, however could not cause bursitis (transcript, day 2, page 50; see also pages 57 and 58). He also acknowledged that the Applicant may have experienced pain from the lifting incident, but was not of the opinion that the lifting incident was causative of the Applicant’s pain (transcript, day 2, page 50):
MR MORRISSEY: Do you accept that he experienced the onset of pain or adverse symptomology on the day of the accident?---
DR MEYERKORT: I can say that he reported experiencing symptoms on the day, yes.
MR MORRISSEY: In expressing the opinions you have in this case, you’ve proceeded on the basis that there was symptomology on the day of the incident that he reported to you?---
DR MEYERKORT: Based on his report, yes.
MR MORRISSEY: But you chose to discount the role of any lifting incident, based on the reasons that you’ve said in your evidence-in-chief?---
DR MEYERKORT: Yes. I think that’s outlined there.
MR MORRISSEY: Do you accept that the type of lifting that he performing, being that he grabbed the 20-kilogram object with two hands and lifted it, has the potential to cause a soft tissue injury?---
DR MEYERKORT: It could cause a soft tissue injury, yes. It can’t cause bursitis though.
MR MORRISSEY: Dr Slinger has given evidence that, in his opinion as an orthopaedic surgeon, a soft tissue injury can cause bursitis. Do you reject that opinion?---
DR MEYERKORT: No. That’s his opinion.
However, Dr Cairns did, when giving evidence to the Tribunal, accept the following (transcript, day 3):
(a)Subacromial bursitis is a common cause of shoulder pain and that it is usually related to shoulder impingement of the bursa (page 12);
(b)a person who engages in an awkward posture at above 60 degrees whilst lifting can be at risk of sustaining a shoulder impingement, which he subsequently qualified as the shoulder having to be “sustained” (meaning held above 60 degrees for repetitive or prolonged intervals) (page 14);
(c)the lifting technique explained by the Applicant could potentially cause a soft tissue sprain or strain (page 26);
(d)impingement is a condition which causes pain and bursitis is also a fusion of the shoulder that causes pain as well (page 20);
(e)there was demonstrated pathology in the right shoulder (page 21-22), but that “pathology in the shoulder ante-dated the incident” (page 22);
(f)
cervicobrachialgia describes pain and stiffness of the cervical spine, with symptoms radiating into the upper limb, but the Applicant did not describe to
Dr Cairns any pain or stiffness in the neck, although Dr Cairns did assess the Applicant to have a “slight restriction in some of the movements of his neck” (page 22-23) which was minimal to the extent that the Applicant may not be aware of them in his day to day activities;
(g)The Applicant never reported centralised neck pain, and that it was always to the right side of his neck (page 16); and
(h)There was no prior history of trauma with the Applicant’s neck but rather some “difficulties” with his neck which were “sporadic” (page 23).
Dr Cairns was asked, during cross-examination, to comment on the diagnosis of the Applicant’s treating Orthopaedic Surgeon, Dr Chong (in a letter dated 30 November 2017 which was dictated by Dr Geraldine Goh – Exhibit A8) of “right periscapular musculature sprain”. Dr Cairns stated:
… it’s generally accepted that muscle or tendon or ligament strains or sprains heal up and don’t cause any problems beyond, say, six to eight weeks. This report is written six months after the event, which, by my interpretation, casts some doubt on the observation, but it certainly doesn’t negate the theory that I’ve espoused, in terms of the relationship of his shoulder girdle pain to this neck pathology.
Dr Cairns was also asked about the existing pathology in the Applicant’s right shoulder. The following exchange during evidence in chief is relevant (transcript, day 3, page 10):
DR HENDERSON: So in terms of the imaging you've been referred to reports of imaging that relate to the back and some reports of imaging that relate to the shoulder. So when you refer to it being consistent with the diagnosis which of those images are you referring to or both?
DR CAIRNS: The pathology in his cervical spine. In full knowledge that the pathology demonstrated in his shoulder as well but at the end of the day you have to make a clinical call and that's what the opinion is.
The pathology in the Applicant’s shoulder was also explored with Dr Cairns during cross examination (transcript, day 3, page 20-22):
MR MORRISSEY: So you should have in front of you, I hope you have it in front of you, Dr Cairns, it’s a ultrasound and X-ray of the right shoulder, on the top right-hand corner it’s dated
12 July 2017?
DR CAIRNS: Yes.
MR MORRISSEY: Now, the ultrasound of the right shoulder says:
There is thickening of the subacromial bursa, compatible with bursitis. Some amount of effusion is noted. Along the posterior aspect there is significant bursal thickening. On abduction of the arm patient was only able to elevate arm to 60 degrees. Significant bursal impingement occurred during elevation of the arm. Calcific tendonitis of the supraspinatus tendon is noted, but no tendon tear identified.
Going on:
Imaging impression - significant subacromial bursitis with bursal impingement upon elevation of the arm. Can be amenable to cortisone injection and reduced inflammation and alleviate patient’s symptoms.
So there you have, what, two months after the accident, or thereabouts, or less, a radiologist, and you say that you refer to these people to read these things because that’s what they do, identifying a pretty clear pathological basis for the pain, on your own evidence, in Mr Harding’s right shoulder. So why, when you’ve got that, just understanding why you go for - you look for - if the reported pain is in the right shoulder, pathology of the right shoulder
DR CAIRNS: - - -? Yes. Right shoulder girdle, yes.
MR MORRISSEY: - - - is observed, why you would go - look for an alternative theory and say that it came from the neck, when it’s pretty clear that there is pathology in the right shoulder, which explains the right shoulder pain?
DR CAIRNS: As I said earlier on, the imaging investigations have to be coupled with the clinical evidence available. As there’s comment about pathological changes in the capsule, with calcification and so on and so forth, which ante dated the incident at work. He had a pass history of (indistinct), onset of symptoms three years previously.
There’s documented previous reports of difficulties with his neck. None of the examiners, apart from this particular report, referred to specific examination of the shoulder, confirming a restriction and range of movement. And my advice, from Mr Harding himself, was that he also had not been aware of any restriction in the range of movement, as distinct from pain related to it, throughout the course of the history. So this is just part of the sequence of events. I accept what you’re saying, there’s demonstrated pathology. I’d have to say that my, and I would not, for one moment, profess to be an expert in reading ultrasounds, and if I might quote one of my eminent colleagues who presented a paper in referring to ultrasounds of the shoulder, said that it was like - he’s of Indian origin, he said that looking at ultrasounds was like wandering around the streets of Delhi on a dark night. So these things are all part of a complex of issues which you take into account. I don’t deny the points that you’ve made about it, but I would suggest that those investigations have indicated that pathology in the shoulder ante dated the incident, and Dr Slinger, I think, has made reference to that. And the fact that he’s got these positive findings, two months after a particular event, to me is - I’d place no particular emphasis on it, but I concede what you’re saying about the pathology.
MR MORRISSEY: Yes. It’s just in your report you discount the import of the shoulder, if you like, in the cause of the symptoms completely essential and you go with the neck. But here, so the radiologist’s observations are of significant subacromial bursitis with bursal impingement. That’s a condition that you, yourself, recognised?
DR CAIRNS: Yes, sure, I accept that.
When asked whether the Applicant’s condition was been contributed to, to a significant degree, by various factors including spending significant periods of time on the computer at home doing both administrative tasks and online gaming, Dr Cairns answered “No. Although maintenance of fixed posture such as sitting on a computer at home is likely to symptomatically exacerbate the underlying condition as diagnosed” (Exhibit R3, page 10).
When similarly asked whether the Applicant’s condition has been contributed to, to a significant degree, by psychosocial factors, Dr Cairns stated in his report that, “The documentation identifies possible psychosocial factors, including family stressors” (Exhibit R3, page 10).
Preferred medical evidence
The Tribunal has identified some issues regarding the opinion of Dr Meyerkort above. These included Dr Meyerkort’s reliance on the ultrasound of 12 July 2017, and the ultrasound of 17 July 2017 not being available to him. As noted above, Dr Meyerkort acknowledged that if he had the two conflicting ultrasounds, he would need an MRI to confirm his diagnosis. Additionally, if Dr Meyerkort’s diagnosis was correct, by his own evidence, the Applicant should have recovered within several months, however he did not. As also noted above, the Tribunal is not persuaded that psychosocial factors had anything other than a de minimis role, if indeed any role at all, in impeding the Applicant’s recovery or contributing to his current symptoms. Dr Meyerkort’s view about the influence of psychosocial factors is in contrast to contemporaneous evidence from one of the Applicant’s treating General Practitioners, who noted that there was “no evidence” of “a psychological aspect to the Applicant’s pain” and that the Applicant had taken Pristiq since 2009 “without any issue” (see above paragraph [64]). Consequently, the Tribunal does not prefer, and does not give any weight to, the evidence of Dr Meyerkort.
This brings the Tribunal to consider whether it prefers the opinion of Dr Cairns, or
Dr Slinger, both eminently qualified and experienced orthopaedic surgeons.
The Tribunal was not persuaded by Dr Cairns’ theory of spontaneous onset of the Applicant’s symptoms which he attributed to the Applicant’s cervical spine and not to his shoulder. The proximity in time of the lifting incident to the commencement of the Applicant’s discomfort and pain in his shoulder makes the theory of spontaneous onset difficult for the Tribunal to accept. So too does Dr Cairns’ own acknowledgment that the lifting technique employed by the Applicant could possibly cause a soft tissue strain or sprain. Additionally, Dr Cairns acknowledged that there was “demonstrated pathology” (transcript, day 3, page 21) in the right shoulder (although his opinion was that this pathology pre-existed the lifting incident). He also stated that “I concede what you are saying about the pathology” (transcript, day 3, page 22). Dr Cairns stated that despite, “…full knowledge that the pathology demonstrated in his shoulder as well but at the end of the day you have to make a clinical call and that's what the opinion is”. In summary, the Tribunal was not satisfied as to the basis of the “clinical call” made by Dr Cairns, and specifically, the basis for his spontaneous onset theory, and his conclusion that the Applicant’s pain was due to degeneration in the Applicant’s cervical spine and not a lifting injury to his shoulder.
The Tribunal prefers the opinion of Dr Slinger that the Applicant’s symptoms are consistent with the lifting injury described and reported by the Applicant. The Tribunal is of the opinion that this diagnosis is consistent with the other medical evidence before it, including the opinion of the Applicant’s treating orthopaedic surgeon, Dr Chong (Exhibit A8), who diagnosed a “right periscapular musculature sprain”; and the medical progress certificates provided by the Applicant’s treating general practitioners, which are set out above. Dr Slinger was able to explain how the Applicant could have sustained a soft tissue strain or strain whilst lifting the desk attachment which developed into bursitis. He was able to clearly explain how his diagnosis was supported by the history and medical evidence, including from the Applicant’s treating medical practitioners. His opinion is, in the Tribunal’s opinion, more plausible in light of the totality of the medical evidence before the Tribunal, and more logically articulated than the spontaneous onset theory of Dr Cairns. This is particularly due to the proximity of the lifting incident to the Applicant’s experience of symptoms and the demonstrated pathology of subacromial bursitis with impingement two months after the lifting incident, as shown in the ultrasound results of 12 July 2017.
In summary, the Tribunal finds that the correct diagnosis for the Applicant’s right shoulder condition is that provided by Dr Slinger, being subacromial bursitis caused by an acute strain or sprain of the right shoulder as a result of the lifting incident.
WAS THE APPLICANT’S SHOULDER INJURY A “DISEASE” OR AN “INJURY (OTHER THAN A DISEASE)”?
As noted above, the Respondent will be liable to pay compensation to the Applicant under s 14 of the SRC Act if the Applicant suffered an “injury” within the meaning of s 5A(1) of the SRC Act.
An “injury” under s 5A(1) includes a “disease” (s 5A(1)(a) of the SRC Act) and an “injury (other than a disease)” (s 5A(1)(b) of the SRC Act) suffered by the employee.
Section 5B(1) of the SRC Act defines a “disease” as an “ailment suffered by an employee” (s 5B(1)(a) of the SRC Act) or an “aggravation of such an ailment” (s 5B(1)(b) of the
SRC Act), both of which must be “contributed to, to a significant degree, by the employee’s employment”.The distinction between s 5A(1)(a) and s 5A(1)(b) of the SRC Act is an important one, because the classification of the Applicant’s condition will determine the applicable test for causation. Indeed, if the test for causation is not met, then there is no “injury” within the meaning of s 5A of the SRC Act.
For an injury that is not a disease (often referred to as an injury simpliciter), the injury must arise out of, or in the course of, employment (s 5A(1)(b) of the SRC Act).
In contrast, a “disease” which, according to s 5B(1) of the SRC Act, must be contributed to, to a significant degree, by the employee’s employment. Thus, a “disease” requires a stronger causal connection between the employment and the ailment (Australian Postal Corporation v Burch (1998) 156 ALR 483 at 486) than an injury. Consequently, as noted by the Federal Court of Australia, an applicant will often seek to first argue that they have suffered an injury, and then, in the alternative, argue the existence of a disease (Australian Postal Corporation v Burch (1998) 156 ALR 483 at 487).
In Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May), French CJ, Kiefel, Nettle and Gordon JJ (the majority) (at 480), discussed the meaning of an “injury”, citing the judgment of Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 (Kennedy Cleaning). The majority in May stated:
45. “Injury” in para (b) is used in its “primary” sense. As Gleeson CJ and Kirby J explained in Kennedy Cleaning Services Pty Ltd v Petkoska, if “something ... can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word”.
46. That physiological change or disturbance of the normal physiological state may be internal or external to the body of the employee. It may be, for example, the breaking of a limb, the breaking of an artery, the detachment of a piece of the lining of an artery, the rupture of an arterial wall or a lesion to the brain. Each would be described as an “injury” in the primary sense.
47. However, as the Full Court correctly held, “suddenness” is not necessary for there to be an “injury” in the primary sense. A physiological change might be “sudden and ascertainable”. A physiological change might be “dramatic”. The employee’s condition might be a “disturbance of the normal physiological state”. That an “injury” in the primary sense can arise, and can be described, in a variety of ways does not mean that “suddenness” is irrelevant. As the Full Court said, “suddenness” is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.
48. That an “injury” in the primary sense can arise, and be described, in a variety of ways was recognised by Gleeson CJ and Kirby J in Kennedy Cleaning when their Honours stated:
“[C]onsideration [must] be given to the precise evidence, on a fact by fact basis, concerning the nature and incidents of the physiological change accepted at trial. If this evidence amounts, relevantly, to something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state, it may qualify for characterisation as an ‘injury’ in the primary sense of that word.”
It is against that background that the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis,... accepted at trial” and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”.
(Footnotes omitted.)
The questions that the Tribunal must ask in order to identify whether there is a disease or an injury simpliciter were further described by the majority in May (at 481-482):
49. …the Act requires the tribunal of fact to give consideration to “the precise evidence, on a fact by fact basis,... accepted at trial” and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”.
50.First, does the evidence amount, relevantly, to something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition? Second, if so, was that state contributed to in a material degree by the employee's employment by the Commonwealth?
51.If the answer to both those questions is “Yes”, there is a “disease” within para (a) of the definition of “injury”. Of course, in some cases, the answer to those questions may be admitted. That is, the employee may admit that the answer to the first question, or both the first and the second questions, is “No”.
52.If there is not a “disease” within para (a) of the definition of “injury”, the tribunal of fact next inquires whether there is an “injury (other than a disease)” within para (b). The third question is – does the evidence demonstrate the existence of a physical or mental “injury” (in the primary sense of that word)? Generally, that will be determined by asking whether the employee has suffered something that can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. However, that judicial language is not to be construed or applied as if it were the words of a statute defining a necessary condition for the existence of an “injury (other than a disease)”. The language of judgments should not “be applied literally to facts without further consideration of what is conveyed by the reasoning” in the cases from which it is derived, or without regard to the text and scheme of the Act.
53.If there be an “injury” in the primary sense of the word, the next question is – did that injury arise out of, or in the course of, the employee's employment by the Commonwealth? If that question is answered “Yes”, there is an “injury (other than a disease)” within para (b) of the definition of “injury” in s 4(1) of the Act. In some circumstances, if the answer is “No”, it may be necessary to ask whether the case is one involving aggravation of an injury. That question does not arise in this appeal.
(Footnotes omitted.)
In a separate judgment in May, Gageler J also identified the need for a definitive physiological change or disturbance for there to be an injury. His Honour stated (at 487):
The understanding of an injury as a definite or distinct physiological change or disturbance was first expounded in cases in which catastrophic consequences of pre-existing medical conditions came to be recognised as capable of constituting injuries. The exposition has remained particularly useful in cases within that category. The analysis undertaken in those cases has always looked beyond mere alterations of physical or mental functioning of the mind or body to the identification of the physiological happenings which have resulted in those alterations: destruction of tissue, collapse of vertebrae, rupture of blood vessels, occlusion of an artery, development of a lesion. The point of explaining an injury in terms of a definite or distinct physiological change or disturbance has been to highlight the necessity for such an analysis to be undertaken.
The SRC Act does not, however, mandate the order in which these questions need to be asked, provided that the Tribunal considers both s 5A(1)(a) (whether the injury is a “disease”) and s 5A(1)(b) (whether the employee suffers from an “injury (other than a disease”). In May, Gageler explained at 486 that, “… the questions posed by paras (a) and (b) need not be asked in their statutory sequence.”
Whether something is a physical injury or a disease must be determined on a case by case basis. It was stated by Gleeson CJ and Kirby J in Kennedy Cleaning that: “Generalities are dangerous. The duty of the decision-maker is to apply the language of the relevant legislation to the facts as found in the particular case”. Therefore, the question of whether an applicant has a disease or injury must be determined with reference to “…precise evidence…concerning the nature and incidents of the physiological change…” (per Gleeson CJ and Kirby J at 300).
An injury does not have to be something that is external to the body or “…produced by external causes” (Kennedy Cleaning per Gleeson CJ and Kirby J at 298). For example, a disc prolapse could be an injury, depending on the medical evidence (Dixon CJ in Kavanagh v Commonwealth (1960) 103 CLR 547 at 553, cited by Senior Member Dwyer in Re Winsall and Comcare (2003) 72 ALD 696 at 708).
A disease was described in contrast to an injury by Gleeson CJ and Kirby J in Kennedy Cleaning (at 300-301) as follows:
The disease provisions remain as alternative and additional heads of entitlement where a disease pathology exists with the appropriate employment connection, and does not manifest itself in the kind of sudden physiological change or disturbance of the normal physiological state that will constitute an “injury” in the primary sense.
In Re Winsall and Comcare (2003) 72 ALD 696 at [710], Senior Member Dwyer noted that “… “injury” and “disease” are not mutually exclusive and that an applicant can choose on which to rely”. Additionally, Senior Member Dwyer at [710] also noted that the distinction between an injury simpliciter and a disease could be problematic. The Senior Member suggested that: “In those cases it is appropriate in dealing with beneficial legislation to use the characterisation which is more helpful to an injured worker”.
In order to be a “disease” within the meaning of the SRC Act, the Applicant’s injury must be an “ailment”. The definition of an “ailment” in s 4 of the SRC Act was discussed by Drummond J in Comcare and Mooi (1996) 69 FCR 439 (Mooi) (at 442-443):
By s 4, the term “injury” means physical or mental injury other than disease, while the term “disease” means any physical or mental ailment, disorder, defect or morbid condition. The expression “ailment” is used in s 4 of the Act as a synonym for the term “disease”. It is apparent, from the exhaustive meaning given by s 4 to the term “ailment”, and from the ordinary meaning of that word – “a morbid affection of the body or mind; indisposition: a slight ailment” (Macquarie Dictionary) - that that term is intended to cover the whole range of physical and mental illnesses from major to minor ones.
In Vo and Comcare [2005] AATA 773 (Vo) Senior Member Constance (now Deputy President Constance) and Member Miller discussed the broad and circular meaning of an “ailment”, at [54], as follows:
The definition of “ailment” is very broad... The terms “ailment” and “morbid condition” both connote a condition of disease in their ordinary meanings apart from their use as part of the definition of “disease” in the Act. In context the words “disorder” and “defect” should be interpreted accordingly. The definition of “ailment” in section 4 is somewhat circular as it includes the word “ailment”
within its own definition. The Macquarie Dictionary (Revised Third Edition) definition of “ailment” includes “a morbid affection of the body or mind” and “morbid” includes “affected by, proceeding from, or characteristic of disease.”With respect to the current application, the Applicant’s right shoulder injury, as diagnosed by Dr Slinger, was that the Applicant had developed a “subacromial bursitis” due to “an acute strain or sprain of the right shoulder” (Exhibit A3, page 2). This condition could possibly be categorised as an “ailment” (s 4 of the SRC Act), given its broad definition. As noted above, an “ailment” is defined in s 4 of the SRC Act as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).” The Applicant’s condition may satisfy this definition because it could be described as a physical ailment or disorder, or an “morbid affection of the body or mind” where “morbid” includes “affected by, proceeding from, or characteristic of disease” (Macquarie Dictionary (Revised Third Edition) applied in Vo at [54]). However, the definition is also circular in the sense that an ailment is a synonym for disease (Mooi).
In the Tribunal’s opinion, rather than being an “ailment”, the Applicant’s condition of subacromial bursitis caused by an acute strain or sprain is more accurately described as an “injury” because it is a physiological change or disturbance of the normal physiological state. Dr Slinger’s evidence was that the ligaments or muscles in the shoulder are damaged by this type of injury which causes an “inflammatory process” including “swelling, fluid and inflammatory cells” (transcript, day 2, page 14; see also paragraph [93]). In the Tribunal’s opinion, this is “a definite or distinct physiological change or disturbance” (Gageler J in May), which is a physical injury in the primary sense of the word (majority in May) that is consistent with an injury simpliciter.Consequently, the effect of s 5A(1)(b) of the SRC Act is that the Applicant’s shoulder condition must arise out of, or in the course of, his employment, for it to be an injury (other than a disease) within the meaning of s 5A(1)(b) of the SRC Act.
In May (at 480), the majority explained that “arising out of, or in the course of, the employee’s employment” meant that, “…the physical or mental injury has to have a causal or temporal connection with the employee’s employment”.
As explained in Peter Sutherland and John Oman Ballard, Annotated Safety, Rehabilitation and Compensation Act 1988 (11th ed, Federation Press 2018), page 94:
“Arising out of” denotes a causal relationship, the “course of employment” denotes a temporal one; however there is much overlapping between the two concepts.
In Charles R Davidson and Co v M’Robb (1918), Lord Finley LC said:
“Arising out of the employment” obviously means arising out of the work which the man is employed to do and what is incident to it - in other words, out of his service. “In the course of his employment” must mean, similarly, in the course of the work which the man is employed to do, and what is incident to it - in other words, in the course of his service. (at [1918] AC 314).
Sutherland and Ballard continue on to state (at page 94) that:
The test for “in the course of his employment”, often adopted, was set out in Humphrey Earle Ltd v Speechley (1951); Dixon J said:
[T]he question whether it occurs in the course of the employment must depend upon the answer to the question whether the workman was doing something he was reasonably required, expected or authorised to do in order to carry out his duties… (at 84 CLR 133)
In the Applicant’s case, there is a temporal connection to his employment because it was the process of lifting the desk attachment at work that caused his right shoulder injury. Further, the Tribunal accepts that the Applicant lifted the desk attachment at the direction of his manager, and as part of his role as a corporate support officer with the Department. Consequently, the Tribunal finds that the Applicant’s shoulder injury occurred in the course of his employment.
CONCLUSION
For the reasons outlined above, the Tribunal finds that:
(a)the Applicant developed a subacromial bursitis from an acute strain or sprain of the right shoulder;
(b)which occurred as a result of the lifting incident;
(c)in the course of the Applicant’s employment; and
(d)is therefore an “injury” within the meaning of s 5A(1)(b) of the SRC Act.
Consequently, the Respondent is liable to pay compensation to the Applicant for his right shoulder injury in accordance with s 14 of the SRC Act.
DECISION
The Reviewable Decision is set aside and in substitution, the Tribunal finds that the Respondent is liable to pay compensation to the Applicant, pursuant to s 14 of the SRC Act, for the condition of
subacromial bursitis of the right shoulder, as diagnosed by
Dr Slinger.
The Tribunal awards the Applicant costs in accordance with s 67(8) of the SRC Act.
I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans
...................................[sgd].....................................
Associate
Dated: 29 October 2019
Date(s) of hearing: 6, 7, 8 May 2019 Counsel for the Applicant: Mr N Morrissey Solicitors for the Applicant: Slater & Gordon Lawyers Counsel for the Respondent: Dr J Henderson
Key Legal Topics
Areas of Law
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Expert Evidence
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Statutory Construction
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Appeal
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