Heldt and Comcare (Compensation) - [2023] AATA 534

Heldt and Comcare (Compensation) [2023] AATA 534 (30 March 2023)
Division:GENERAL DIVISION
File Number: 2021/9059
Re:Cyril Heldt
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:30 March 2023
Place:Melbourne

The Tribunal sets aside the reviewable decision and in substitution decides that:
(a)The Applicant suffered a right shoulder ailment that was significantly contributed to by employment. The date of injury pursuant to s 7(4) of the Act is 28 August 2020.
(b)The Respondent is liable to pay compensation in respect of the right shoulder ailment in accordance with s 14 of the Act; and
(c)The Respondent is liable to reimburse the Applicant for costs reasonably incurred in connection with this proceeding pursuant to s 67(8) of the Act.

......................[sgd]..................................................
Senior Member A. Nikolic AM CSC
COMPENSATION
Workers’ Compensation – Commonwealth employee – whether Applicant suffered a right shoulder disease – whether disease contributed to a significant degree by employment – whether work related disease contributed significantly to aggravation of a pre-existing disease – working from home setup contributing to compensable disease - competing expert evidence regarding causation - decision set aside and substituted – costs awarded
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth); ss 25, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth); ss 4, 5B, 7, 14, 64, 67
CASES
Australian Postal Corporation v Burch (1998) 156 ALR 483
Comcare v Martin (2016) 258 CLR 467
Comcare v Power (2015) 238 FCR 187
Lees v Comcare (1999) 56 ALD 84
Federal Broom Company v Semlitich (1964) 110 CLR 626
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253
Wuth v Comcare (2022) 174 ALD 472
SECONDARY MATERIALS
Dorland’s Illustrated Medical Dictionary, 27th Edition
REASONS FOR DECISION
30 March 2023
Introduction

The Applicant, Mr Cyril Heldt, is 41 years old and commenced fulltime employment with the Australian Tax Office (“ATO”) on 29 November 2010.[1] His application relates to a worker’s compensation claim submitted on 9 July 2021, which stated in part:[2]
‘I have a right shoulder tear and I am requesting surgery to hopefully fix it…I was working from home when it happened. I was moving the mouse and I started to feel pain in my right shoulder (“the workplace injury”).[3]
[1] Exhibit R1, 31.
[2] Ibid 9-10.
[3] Ibid 121.
The hearing was held between 21 and 24 March 2023 in person at the Tribunal’s Melbourne Registry. The Applicant was represented by Ms Cassie Serpell of counsel, instructed by Angela Sdrinis Legal. The Respondent was represented by Mr Ray Ternes of counsel, instructed by Moray and Agnew Lawyers.
For the following reasons, the Tribunal sets aside the decision under review.
BACKGROUND
The Applicant stated that he first noticed symptoms in his right shoulder while working from home during the COVID-19 Pandemic.[4] This progressively worsened over a period of several weeks until he saw his general practitioner on 28 August 2020 and was referred for orthopaedic review.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heldt and Comcare (Compensation)

Details

AGLC: Heldt and Comcare (Compensation) [2023] AATA 534
Case: [2023] AATA 534
Decision Date: 30 March 2023

CaseChat Overview and Summary

This matter came before the Administrative Appeals Tribunal concerning a claim for compensation by the Applicant, Mr Heldt, against Comcare. The Applicant alleged that he first experienced symptoms in his right shoulder while working from home during the COVID-19 pandemic, with the condition progressively worsening until he sought medical attention in August 2020 and was subsequently diagnosed with a SLAP labral tear. The dispute centred on competing medical opinions regarding the causation of this injury.

The Tribunal was required to determine whether the Applicant's SLAP labral tear constituted an injury within the meaning of the relevant legislation, and specifically, whether his employment contributed to the development of this condition in a manner that was substantially more than material. This involved assessing the credibility of the Applicant as a witness and weighing the conflicting expert medical evidence presented by various orthopaedic specialists and the Applicant's general practitioner.

The Tribunal found that the Applicant's condition was a gradual process rather than an acute event. It accepted the evidence of the Applicant's treating surgeons, Mr Chua and Mr Wang, and orthopaedic specialist Mr Moaveni, who opined that the Applicant's work-from-home setup, involving prolonged use of his arm in an elevated and awkward position, was consistent with the cause of his injury. This opinion was preferred over that of Associate Professor Wren, who suggested a pre-existing tear might have been aggravated by work, but relied on less direct evidence and a more limited literature search. The Tribunal placed significant weight on the personal examinations conducted by the treating specialists, noting their expertise in shoulder surgery, and found their collective opinion more persuasive than Associate Professor Wren's, who conducted a single telehealth consultation.

The Tribunal concluded that the Applicant's employment contribution to the development of his right shoulder condition was substantially more than material. Accordingly, the Tribunal set aside the decision under review.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal sets aside the decision under review.BACKGROUND The Applicant stated that he first noticed symptoms in his right shoulder while working from home during the COVID-19 Pandemic.[4] This progressively worsened over a period of several weeks until he saw his general practitioner on 28 August 2020 and was referred for orthopaedic review. The Applicant was subsequently diagnosed in October 2020 with a ‘SLAP labral tear of the superior labrum extending to the anteroinferior quadrant with mild synovitis in the axillary recess’.[5][4] Department of Health and Human Services, Updates Archive (Web Page) < Exhibit R1, 115. This case turns on competing medical opinions and theories relating to causation. The Applicant relies on the opinions of his general practitioner, Dr Peter Pereira, his two treating surgeons, Mr Soong Chua and Mr Kemble Wang, and orthopaedic specialist Mr Ash Moaveni, who provided several medico-legal reports. The Respondent relies on the medico-legal reports of orthopaedic specialist Associate Professor Michael Wren.Evidence of Dr Peter Pereira Dr Pereira has been the Applicant’s general practitioner since 2007 and there is a record of approximately 200 consultations between them.[23] The exception is an approximately two-and-a-half-year period between 1 May 2017 and 7 November 2019, where no consultations are recorded. The Applicant stated he consulted other doctors and medical records were produced from another clinic on the third hearing day, which did not disclose any right shoulder presentations.[23] Ibid 250-298. Dr Pereira gave oral evidence and was cross-examined. He adopted a two-page letter dated 4 July 2021 as true and correct.[24] His oral evidence is summarised as follows:[24] Ibid 118-119.(a)Dr Pereira was referred to medical records regarding consultations with the Applicant in February 2014 for ‘R shoulder pain’,[25] ‘R trapezius pain persisting’[26] and ‘R shoulder dislocation’.[27] He said the Applicant’s pain was severe enough for medical certificates to be provided for days off work on 3, 4, and 21 February 2014. Dr Pereira also ordered an x-ray and right shoulder ultrasound and prescribed anti-inflammatory medication. When asked why he responded: ‘nil applicable’ in his letter dated 4 July 2021 to a question about whether the Applicant had experienced ‘the same or similar symptoms before’,[28] Dr Pereira said he considered the 2014 right shoulder presentations an ‘insignificant problem’ and not worthy of mention. Dr Pereira denied being an advocate for the Applicant, stating: ‘No, why would I be?’(b)Dr Pereira said his examination on 21 February 2014 did not disclose a dislocation and he doubted the Applicant’s claim about sustaining one, because he ‘didn’t mention his shoulder after that’.(c)Dr Pereira recalled the Applicant saw him in August 2020 after ‘developing right arm pain when using a mouse’, because his ‘setup at home was not ideal to operate a laptop’. Dr Pereira said ‘decreased range of motion’ in the right shoulder was ‘consistent with a right rotator cuff injury’, and he prescribed anti-inflammatories. (d)Dr Pereira attributed the Applicant’s labral tear to: ‘Working from home on furniture not ergonomically designed for this use’.[29] He said causation was consistent with the Applicant telling him his chair at home was ‘lower than the chair at his office, his table was higher than the office’, and ‘operating a mouse [in this position] caused pain in his shoulder’. On 1 September 2020, he recommended the Applicant get an ergonomic chair and possibly a desk, to enable him to better position his arm.[30] The Applicant was given a medical certificate for two days off work and, on 3 September 2020, a further two days off because of ‘R shoulder / arm pain persisting’.(e)Dr Pereira said an x-ray and ultrasound of the Applicant’s right shoulder did not show any abnormality.[31] After seeing the Applicant again on 21 October 2020, where he still complained about ‘R arm pain, neck pain’,[32] he referred him for an MRI, which diagnosed the labrum tear.[33] Dr Pereira then referred the Applicant to orthopaedic surgeon Mr Soong Chua, who recommended physiotherapy, but the Applicant did not undertake it. He then referred the Applicant to orthopaedic surgeon Mr Kemble Wang, whose ‘specialty is shoulders’, for a second opinion.(f)Dr Pereira said the Applicant has been advised by two specialists that surgery to his shoulder is required. Pending that, Dr Pereira has recommended the Applicant does not lift anything with his right arm and maintains it below shoulder level. (g)Much of the questioning of Dr Pereira centred on what he understood the Applicant’s arm positioning at home to be when using a laptop. Dr Pereira said the Applicant’s right arm position at home ‘was considerably higher’, than at work. At this point in his evidence Dr Pereira raised his right arm and hand to approximately the level of his right shoulder. In response to subsequent questions, Dr Pereira said he did not know precisely what level the Applicant’s arm was, and had accepted the Applicant’s claim that it was higher than at work. When asked by Mr Ternes how likely it would be for the Applicant to sustain a labral tear in his right shoulder if his arm was consistently below shoulder height, Dr Pereira said he did not know.(h)Dr Pereira was referred to photographs showing the Applicant’s computer setup at his dining room table and other photographs of his computer setup at work. Dr Pereira stated: ‘I think his arm is higher’ in the home setup, and further observed: ‘He’s got his arm out a bit – I don’t know why, and he’s leaning forward. In the ergonomic chair his back is touching the chair’. Dr Pereira thought the Applicant’s posture was better in the office chair, with his forearms in towards his body.(i)During cross-examination, it was put to Dr Pereira that he was not well placed as a general practitioner to attribute a cause for the labral tear. Dr Pereira said there was a ‘strong correlation’ between the history provided by the patient, his clinical examination, and causation. He stated: ‘I have to believe what the patient is telling me’. He said the Applicant’s injury was caused by a computer setup at home that was ‘not ergonomically conducive to posture’. Because of this, he did not consider whether the labral tear was pre-existing or asymptomatic at the time of their consultation in August 2020. When asked by Mr Ternes whether it was within his area of expertise as a general practitioner to determine ‘what causes a SLAP tear’, Dr Pereira responded: ‘Not as a GP’, but said he attended presentations by orthopaedic surgeons. (j)When asked by Mr Ternes if he understood what usually causes a SLAP tear, Dr Pereira said it ‘might be a forceful incident’ or ‘traumatic episode’. He was ‘not sure what the literature says’ but thought it could also be caused ‘by other things – not only physical activities’. Mr Ternes said the normal cause of such injuries included ‘falling on an outstretched arm’ or ‘throwing forcefully’, rather than working at a dining table and operating a computer mouse. Dr Pereira responded: ‘It’s not a usual cause but it can occur, or it may have been an aggravation of something there before’.[25] Ibid 272 (3 February 2014).[26] Ibid (4 February 2014).[27] Ibid 273 (21 February 2014).[28] Exhibit R2, Schedule of Questions, question 3.[29] Exhibit R1, 119 [4].[30] Ibid 290 (1 September 2020).[31] Ibid 290-292.[32] Ibid 291.[33] Ibid 294.Evidence of Mr Soong Chua

Evidence

Evidence Before The Court

Dr Pereira gave oral evidence and was cross-examined. He adopted a two-page letter dated 4 July 2021 as true and correct.[24] His oral evidence is summarised as follows:[24] Ibid 118-119.(a)Dr Pereira was referred to medical records regarding consultations with the Applicant in February 2014 for ‘R shoulder pain’,[25] ‘R trapezius pain persisting’[26] and ‘R shoulder dislocation’.[27] He said the Applicant’s pain was severe enough for medical certificates to be provided for days off work on 3, 4, and 21 February 2014. Dr Pereira also ordered an x-ray and right shoulder ultrasound and prescribed anti-inflammatory medication. When asked why he responded: ‘nil applicable’ in his letter dated 4 July 2021 to a question about whether the Applicant had experienced ‘the same or similar symptoms before’,[28] Dr Pereira said he considered the 2014 right shoulder presentations an ‘insignificant problem’ and not worthy of mention. Dr Pereira denied being an advocate for the Applicant, stating: ‘No, why would I be?’(b)Dr Pereira said his examination on 21 February 2014 did not disclose a dislocation and he doubted the Applicant’s claim about sustaining one, because he ‘didn’t mention his shoulder after that’.(c)Dr Pereira recalled the Applicant saw him in August 2020 after ‘developing right arm pain when using a mouse’, because his ‘setup at home was not ideal to operate a laptop’. Dr Pereira said ‘decreased range of motion’ in the right shoulder was ‘consistent with a right rotator cuff injury’, and he prescribed anti-inflammatories. (d)Dr Pereira attributed the Applicant’s labral tear to: ‘Working from home on furniture not ergonomically designed for this use’.[29] He said causation was consistent with the Applicant telling him his chair at home was ‘lower than the chair at his office, his table was higher than the office’, and ‘operating a mouse [in this position] caused pain in his shoulder’. On 1 September 2020, he recommended the Applicant get an ergonomic chair and possibly a desk, to enable him to better position his arm.[30] The Applicant was given a medical certificate for two days off work and, on 3 September 2020, a further two days off because of ‘R shoulder / arm pain persisting’.(e)Dr Pereira said an x-ray and ultrasound of the Applicant’s right shoulder did not show any abnormality.[31] After seeing the Applicant again on 21 October 2020, where he still complained about ‘R arm pain, neck pain’,[32] he referred him for an MRI, which diagnosed the labrum tear.[33] Dr Pereira then referred the Applicant to orthopaedic surgeon Mr Soong Chua, who recommended physiotherapy, but the Applicant did not undertake it. He then referred the Applicant to orthopaedic surgeon Mr Kemble Wang, whose ‘specialty is shoulders’, for a second opinion.(f)Dr Pereira said the Applicant has been advised by two specialists that surgery to his shoulder is required. Pending that, Dr Pereira has recommended the Applicant does not lift anything with his right arm and maintains it below shoulder level. (g)Much of the questioning of Dr Pereira centred on what he understood the Applicant’s arm positioning at home to be when using a laptop. Dr Pereira said the Applicant’s right arm position at home ‘was considerably higher’, than at work. At this point in his evidence Dr Pereira raised his right arm and hand to approximately the level of his right shoulder. In response to subsequent questions, Dr Pereira said he did not know precisely what level the Applicant’s arm was, and had accepted the Applicant’s claim that it was higher than at work. When asked by Mr Ternes how likely it would be for the Applicant to sustain a labral tear in his right shoulder if his arm was consistently below shoulder height, Dr Pereira said he did not know.(h)Dr Pereira was referred to photographs showing the Applicant’s computer setup at his dining room table and other photographs of his computer setup at work. Dr Pereira stated: ‘I think his arm is higher’ in the home setup, and further observed: ‘He’s got his arm out a bit – I don’t know why, and he’s leaning forward. In the ergonomic chair his back is touching the chair’. Dr Pereira thought the Applicant’s posture was better in the office chair, with his forearms in towards his body.(i)During cross-examination, it was put to Dr Pereira that he was not well placed as a general practitioner to attribute a cause for the labral tear. Dr Pereira said there was a ‘strong correlation’ between the history provided by the patient, his clinical examination, and causation. He stated: ‘I have to believe what the patient is telling me’. He said the Applicant’s injury was caused by a computer setup at home that was ‘not ergonomically conducive to posture’. Because of this, he did not consider whether the labral tear was pre-existing or asymptomatic at the time of their consultation in August 2020. When asked by Mr Ternes whether it was within his area of expertise as a general practitioner to determine ‘what causes a SLAP tear’, Dr Pereira responded: ‘Not as a GP’, but said he attended presentations by orthopaedic surgeons. (j)When asked by Mr Ternes if he understood what usually causes a SLAP tear, Dr Pereira said it ‘might be a forceful incident’ or ‘traumatic episode’. He was ‘not sure what the literature says’ but thought it could also be caused ‘by other things – not only physical activities’. Mr Ternes said the normal cause of such injuries included ‘falling on an outstretched arm’ or ‘throwing forcefully’, rather than working at a dining table and operating a computer mouse. Dr Pereira responded: ‘It’s not a usual cause but it can occur, or it may have been an aggravation of something there before’.[25] Ibid 272 (3 February 2014).[26] Ibid (4 February 2014).[27] Ibid 273 (21 February 2014).[28] Exhibit R2, Schedule of Questions, question 3.[29] Exhibit R1, 119 [4].[30] Ibid 290 (1 September 2020).[31] Ibid 290-292.[32] Ibid 291.[33] Ibid 294.Evidence of Mr Soong Chua

Decision

Reasons for decision

The facts in this case do not reflect an acute event causing the Applicant to sustain an injury within the meaning of s 5A of the Act. They instead reflect a gradual process condition that worsened over several weeks, before becoming severe enough for the Applicant to seek medical assistance on 28 August 2020. The key question is, what caused it? The following findings are made on the balance of probabilities: a) The Applicant did suffer some sort of right shoulder problem during an approximately three-week period in February 2014. There is no evidence, however, that the diagnostic imaging ordered by Dr Pereira was ever performed and the Tribunal accepts the opinions of Dr Pereira, Mr Moaveni, Mr Wang, and Mr Wren that it was highly improbable the Applicant suffered a right shoulder dislocation. The Tribunal also accepts Mr Ternes’ concession, properly made, that there is insufficient evidence to find that the Applicant’s gym activities prior to early 2020, or lifting a suitcase in 2014, or another undefined event, reliably establish causation. b) The Applicant attended a gym for approximately three years until either late 2019 or early 2020. This was primarily weight loss exercise but involved some use of light weights. There is a reference in Mr Chua’s report to the Applicant being a ‘keen gym goer’ who ‘tried to maintain a level of fitness during the lockdown period’, which postdates his gym attendance. The Applicant said this was walking in parks. That said, there is no evidence to attribute the Applicant’s right shoulder symptoms or a labral tear to gym work or another cause. Given the frequency of the Applicant’s visits to general practitioners, Mr Moaveni’s submission that the Applicant would have sought medical assistance for a shoulder injury of any relevance has some force. Applying the same logic, however, concerns are raised by the Applicant experiencing right shoulder symptoms from late July 2020, but not telling his supervisor or consulting with Dr Pereira until a month later. The Applicant’s unchallenged explanation, which the Tribunal accepts, is that his right shoulder symptoms got progressively worse. c) Notwithstanding concerns about some of the photographs relied on by the Applicant to portray his work-from-home setup, the extent and type of past fitness activities, purported conversations with his supervisor, and the delay in getting an office chair and other computer peripherals from work, the Tribunal accepts Ms Serpell’s and Mr Ternes’ submissions that he was a generally forthright and credible witness.d) The Applicant was diagnosed on 27 October 2020, with a ‘SLAP labral tear of the superior labrum extending to the anteroinferior quadrant with mild synovitis in the axillary recess’. This is a disease within the meaning of s 5B(1)(a) of the Act.e) The Tribunal accepts the Applicant’s evidence, corroborated by Mr Chua, Mr Wang, and Mr Moaveni, that his work-from-home setup, when compared to his ATO office setup, resulted in prolonged use of his right arm in a somewhat elevated, awkward, or unnatural position for prolonged periods. The contribution of the Applicant’s employment to the development of his right shoulder condition was substantially more than material[53] because:(i)Mr Chua, Mr Wang, and Mr Moaveni accept the injury conforms with the stated cause. Mr Wren disagrees but accepts a pre-existing labral tear may have been aggravated by work, albeit not to a significant degree. (ii)Mr Chua, Mr Moaveni, and Mr Wang posited a clear theory of causation linked to employment. This is based on their past clinical observations of other patients with the Applicant’s ‘atypical’ presentation. The Tribunal prefers their collective opinion to Mr Wren’s, which relies on unreported non-employment causative factors. It is noteworthy that the Applicant attends general practitioners frequently. For example, Dr Pereira’s records show up to 49 annual attendances. The Applicant also concurrently attended another general practitioner in a nearby clinic. The Tribunal is satisfied that if he did sustain some other right shoulder injury of consequence, this would be disclosed by medical records that are obtainable by both parties.(iii)The Tribunal is unpersuaded that the limited literature search undertaken by Mr Wren is determinative of whether atypical presentations like the Applicant’s occur. The Tribunal found the evidence of Mr Chua, Mr Moaveni, and Mr Wang more persuasive in this regard.(iv)Mr Chua and Mr Wang are the Applicant’s treating surgeons. They and Mr Moaveni personally examined the Applicant. Mr Wang and Mr Moaveni are Fellows of the Royal Australasian College of Surgeons and Members of ASES with more than 30% of their practice focussed on shoulder and elbow surgery. Mr Wren is a Perth-based orthopaedic surgeon with more general subspecialties in arthroscopic joint surgery. He undertook a single interstate consultation with the Applicant over ‘Telehealth’ for medico-legal purposes, with assistance from a physiotherapist in Melbourne. Some of this consultation was undertaken by telephone while the Applicant was in his car. The Tribunal considers the personal examinations by Mr Chua, Mr Wang, and Mr Moaveni to be a more reliable basis for the conclusions they reached.(v)In terms of the differential measurements for chairs and tables relied upon by Mr Wren, the Tribunal found this information both interesting and useful. The Tribunal accepts Mr Moaveni’s evidence, however, that there are no established guidelines regarding the correlation between seat / table differences and probability of shoulder injury. Moreover, any analysis in this area is more persuasively established by an occupational physician specialising in work-related conditions. Mr Chua, Mr Wang, and Mr Moaveni are not occupational physicians either, but the combined weight of their evidence is that even relatively small changes in work setup can cause arm / shoulder conditions of the sort sustained by the Applicant. They have seen comparable cases in their respective practices.[53] Federal Broom Company v Semlitich (1964) 110 CLR 626.DECISION

Ratio Decidendi

Legal Principle Established

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