Heldt and Comcare (Compensation)
[2023] AATA 534
•30 March 2023
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 awardedLEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth); ss 25, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth); ss 4, 5B, 7, 14, 64, 67CASES
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 472SECONDARY MATERIALS
Dorland’s Illustrated Medical Dictionary, 27th EditionREASONS 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. 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.
On 7 September 2021, the Respondent declined liability to pay compensation pursuant to the terms of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”). The Respondent decided the Applicant’s shoulder condition ‘was not contributed to, or aggravated, to a significant degree’ by employment (“the original decision”).[6]
[6] Ibid 214 [5]-[6].
On 14 October 2021, the Applicant sought reconsideration of the original decision.[7]
[7] Ibid 228.
On 10 November 2021, a delegate of the Respondent affirmed the original decision.[8]
[8] Ibid 234.
On 25 November 2021, the Applicant lodged his review application.[9]
[9] Ibid 102-105.
STATUTORY FRAMEWORK
The relevant statutory provisions are:
(a)Section 14(1) of the Act provides that subject to the balance of Part II of the Act, Comcare is liable to pay compensation ‘in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.’
(b)The word ‘impairment’ is defined in section 4(1) of the Act to mean ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.’
(c)Section 4(1) of the Act defines an ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’ Relevantly, section 4(1) also provides that the words ‘injury’ and ‘disease’ have the meaning detailed in sections 5A and 5B respectively of the Act. Injury is defined at s 5A(1)(a) of the Act to include ‘a disease’. Section 5B of the Act relevantly defines a disease as follows:
5B Definition of disease
(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.
(d)It is common ground between the parties that the Applicant’s shoulder condition is an ‘ailment’ and, if it has been contributed to, to a significant degree, by employment, then it is a ‘disease’ within the meaning of s 5B(1) of the Act. It follows that if it is a ‘disease’ under s 5B(1) then it is an ‘injury’ under s 5A(1)(a) of the Act.
(e)Section 5B(2) sets out a non-exhaustive list of considerations about whether employment has contributed, to a significant degree, to an ailment or the aggravation of an ailment. Section 5B(3) provides that ‘significant degree’ means a degree that is substantially more than material.
(f)Section 7(4) of the Act is in effect a deeming provision that establishes the date from which compensation is payable to an employee, once it is established that they have suffered an injury that is a ‘disease’, which is compensable under the Act. This is the date they first sought medical treatment.
(g)Part VI of the Act describes an evolving three-part decision-making and review process, consisting of: an original decision by an authorised person; a reconsidered determination by the same agency but usually a different decision-maker; and upon application to the Tribunal, review of a reconsidered determination.[10]
(h)Section 64 of the Act authorises applications to the Tribunal for review of a ‘reviewable decision’ made by the relevant Commonwealth authority. Section 60 defines ‘reviewable decision’ to be a decision made under subsection 38(4) or section 62.
[10] Lees v Comcare (1999) 56 ALD 84, [32] (Wilcox, Branson and Tamberlin JJ); Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 (Heerey, Dowsett and Conti JJ).
Issues for the Tribunal
The parties agree that the issues to be addressed in this application are:[11]
(a)Has the applicant suffered a disease or aggravation of a disease for the purposes of section 5B of the Act?; and
(b)If yes, was the injury or disease contributed to, or aggravated, to a significant degree, by employment, thereby entitling him to compensation under s 14 of the Act?
[11] Applicant’s Statement of Facts, Issues and Contentions, [8]; Respondent’s Statement of Facts, Issues, and Contentions [5].
EVIDENCE BEFORE THE TRIBUNAL
The following documents were taken into evidence:
(a)Tribunal book numbering 382 pages;[12]
(b)Four-page letter from Third Party Claims Administrator Gallagher Bassett to Dr Peter Pereira, dated 14 July 2021;[13]
(c)Report by Associate Professor Michael Wren dated 21 March 2023;[14]
(d)Six pages of photographs with measurements agreed by the parties, regarding the height of the Applicant’s dining chair, kitchen table, and a gas-lift work chair.[15]
[12] Exhibit R1.
[13] Exhibit R2.
[14] Exhibit R3.
[15] Exhibit A1.
The Applicant’s oral evidence occupied the entire first day of the hearing. He called general practitioner Dr Peter Pereira, orthopaedic surgeon Mr Ash Moaveni, and orthopaedic surgeon Mr Kemble Wang as witnesses. The Applicant also relied on letters from orthopaedic surgeon Mr Soong Chua, but did not call him as a witness. The Respondent called Associate Professor Michael Wren, an orthopaedic surgeon from Western Australia who gave evidence by video.
Applicant’s evidence
The Applicant adopted his statement dated 14 October 2022 as true and correct, with one amendment to paragraph 4 about when he stopped playing recreational soccer (being earlier than 2020).[16] The Tribunal has also considered his statement dated 4 April 2022.[17] A summary of the Applicant’s oral evidence follows:
[16] Exhibit R1, 40 [4].
[17] Ibid 36-38.
(a)The Applicant has worked fulltime for the ATO since 2010, prior to which he was employed in ‘logistics, administration, and factory work’. He has undertaken several ATO roles as a compliance officer, technical officer, and investigator. The Applicant said he has taken advantage of flexible working provisions to adjust his core hours (seven hours and 21 minutes) to earlier starts and later finishes. He rarely works on weekends, except to accommodate occasional end-of-financial-year pressures.
(b)The Applicant was asked by Ms Serpell about his past physical activities, which included recreational soccer and a period of gym attendance for about three years prior to early 2020, which resulted in significant weight loss. The Applicant said he used to play soccer regularly with friends at local parks, prior to sustaining a torn Anterior Cruciate Ligament in his left knee in March 2017. He chose not to have this repaired and has since played soccer infrequently – perhaps ‘once or twice a year’. The Applicant said he has never injured his right shoulder playing soccer.
(c)In terms of gym attendance, the Applicant said he did ‘mostly cardio exercises’ and lifted some light weights between 5 and 10 kilograms, but not since the ‘end of 2019 or early 2020’. He is not ‘into heavy weights’ because his exercise regime was focussed on losing weight rather than gaining muscle. He claimed to only do light dumbbell curls with his arms by his sides when using weights. When asked if he kept trying to lose weight till mid-2020 when his gym membership ceased, the Applicant denied this. When taken to a record from his general practitioner dated 2 July 2020, in which it stated: ‘Has intentionally lost weight over the last few months’, the Applicant explained this was achieved through diet rather than exercise, because ‘the battle’s in the kitchen’.
(d)When asked about the reference in Mr Moaveni’s report to participation in rock-climbing, the Applicant denied ever doing so. He explained that he was invited to go rock-climbing at the end of 2021 or early 2022 but declined because he didn’t have the strength in his right arm. The Applicant said he ceased his gym membership on 19 June 2020 and, during COVID-19 shutdowns, walked in parks for exercise.
(e)The Applicant was asked about a medical record from Dr Pereira, which stated that he dislocated his right shoulder lifting a suitcase in early February 2014. The Applicant had no recollection of this but accepted the accuracy of Dr Pereira’s report. When asked by Mr Ternes how he could not recall a painful experience like a shoulder dislocation, the Applicant attributed this to 2014 ‘not being a great part of [his] life’ due to ‘struggling with childhood trauma issues’. He did not elaborate and there is no other reference to these past issues in evidence. The Applicant agreed during cross-examination that none of the orthopaedic surgeons he consulted were told about the 2014 shoulder problem. When asked by Mr Ternes why he included a left shoulder blade injury in his compensation claim, which occurred in 2007, but not the right shoulder dislocation in 2014, the Applicant again referred to ‘going through childhood trauma’.
(f)A summary of the Applicant’s evidence about how his right shoulder injury occurred, and how he subsequently addressed it, now follows:
(i)Upon commencing to work from home, the Applicant initially set his laptop up on a coffee table, while he sat on a lounge. This setup was too low and uncomfortable, causing him to move to the kitchen table later that day.
(ii)The Applicant was referred to several photographs showing his work-from-home setup and how this differed to his office configuration.[18] He claimed to be ‘so used to [the] different position at work’ that his home setup felt ‘uncomfortable’. This included because he had to reach forward and back on an uncomfortably higher kitchen table, causing him to constantly reposition his laptop and the mouse to more comfortable positions. The Applicant said he ‘sat in that position for the entirety of the workday’ but took breaks commensurate with those taken at the office. He worked on a laptop without a monitor or office chair for ‘over two months’. During cross-examination, the Applicant confirmed his wrists were in contact with the table rather than hovering over his laptop keyboard. He explained that by ‘elevated’ he meant the home setup was ‘higher than the level at the office’.
[18] Ibid 44-62.
(iii)In cross-examination, Mr Ternes put to the Applicant that after more than a decade in the ATO, he should have a pretty good idea of how to sit at a desk and position himself. The Applicant said he watched instructional videos about this and understood that the distance from his face to the computer screen was about the length of his arm. The Applicant had no recollection of being sent a ‘Working From Home’ checklist by his ATO supervisor on 25 March 2020, which included a section on ‘Setting up a workstation at home’, and which asked him to complete ‘asap’ and return. [19] He accepted, however, that he must have received it but never completed the checklist.
[19] Ibid 163; 170-171.
(iv)When referred to paragraph 9 of his statement and asked where he first felt pain in ‘late July’ 2020, the Applicant responded: ‘in my upper shoulders’. He described it as a ‘burning sensation’. When asked about his reference to right arm pain, he said it was ‘pins and needles – a tingly pain, but with a burning sensation at the top’ of the right shoulder. During cross-examination, the Applicant said the pain started as a ‘niggle’ about two or three weeks after starting to work from home and he initially ‘didn’t think too much of it’. The pain then proceeded to get worse ‘within the month’, but he could not be certain when it became significant.
(v)Under cross-examination, the Applicant agreed his supervisor emailed him and other teammates on 14 August 2020, asking if anyone needed to pick anything up from the office, to which the Applicant responded: ‘I was thinking about going to the office to collect my chair as the rubbish fantastic furniture chairs I’ve been sitting on have lost the cushioning and the back support is not great’.[20] His supervisor responded in agreement. The Applicant agreed he made no reference in this email to shoulder pain.
[20] Ibid 177.
(vi)When asked why he did not report the pain experienced in late July to his supervisor, with whom he was regularly in contact by email and telephone, the Applicant claimed they discussed it verbally. When referred to his Supervisor’s Report, which stated: ‘Cyril has never raised any issues relating to right shoulder pain with me prior to him reporting the injury on 28 August 2020’, the Applicant responded: ‘if I’m mistaken, I’m mistaken’. The Applicant said he continues to get pain in his right shoulder to the present day, but it is ‘not as nasty as it was’.
(vii)When questioned about whether he changed his work-from-home setup after noticing pain, the Applicant said his supervisor told him to ‘take a chair from work’, which he arranged to do. He said it took a week to organise the necessary COVID permit to and ‘liaise with facilities to collect the chair’, a monitor, keyboard, and mouse. This new setup helped his shoulder pain ‘a bit’. The Applicant agreed he had still not collected his office chair when he consulted Dr Pereira about his right shoulder on 28 August 2020 and did not do so until early September 2020. When asked by Mr Ternes why he had not done so, he responded: ‘I’m not sure…I didn’t understand what was going on in my situation’. He claimed it was only after consulting with Dr Pereira on 28 August and being told it was ‘common to get a RSI’,[21] that he ‘linked the connections’ and understood what was happening.
(viii)Ms Serpell asked the Applicant why he stated in his compensation claim that he first noticed shoulder pain on 3 August 2020 rather than ‘late July’ as claimed in his current statement. The Applicant explained that after contacting Comcare to get ‘guidance to fill in the form’, he was told to nominate a date.
(ix)When asked about a gap of approximately two-and-a-half years in Dr Pereira’s records, from 1 May 2017 until 7 November 2019, where no consultations were recorded, the Applicant thought he may have seen a different doctor or doctors during this time, including after hours. This was later confirmed by the provision of medical records from another clinic, but which did not disclose any right shoulder consultations.
(x)The Applicant said he saw Dr Pereira about his shoulder injury on 28 August 2020 because ‘the pain was getting more and more painful’. He had difficulty putting on clothes like t-shirts, but initially ‘didn’t think much of it’. When asked if he did anything about the pain prior to seeing Dr Pereira, the Applicant replied: ‘I believe I took some Panadol’. Dr Pereira prescribed him with anti-inflammatory medication, which the Applicant said caused a ‘burning sensation’ inside his stomach, so he discontinued it after a short time. The Applicant said Dr Pereira also referred him for a right shoulder x-ray and ultrasound on 3 September 2020, and an MRI on 27 October 2020, with the latter diagnosing his labral tear.
(xi)The Applicant said he experienced pain from his right shoulder in several settings, including when moving his right arm away from his body, repetitive movements, or when reaching, lifting, gripping, putting on clothes, showering, and other daily tasks. His parents and sister must do the household chores, and he is unable to assist with things like vacuuming, making beds, mopping, or washing dishes because ‘the motion of scrubbing is not good for [his] shoulder’. He can carry shopping bags, but only in his left hand and loses grip if he tries carrying them in his right. The Applicant said he owns two cars but his driving tolerance is about one hour and he rarely uses the manual drive vehicle because of the increased stress on his right arm to operate it. He said his right shoulder has affected his social life and recalled one occasion when friends took him out to play darts, but he could not participate because of a burning sensation in his right shoulder and hand, which caused him to feel embarrassed. The Applicant said he rides his mountain bike about ‘once a month’ but only for about 30 or 45 minutes, which is not as often or as long as he used to.
(xii)The Applicant recalled seeing several specialists, including orthopaedic surgeon Mr Soong Chua in December 2020. He recalled Mr Chua telling him he may need surgery if conservative measures like physiotherapy were unsuccessful. The Applicant agreed he did not seek physiotherapy at the time but instead sought a second opinion from orthopaedic surgeon Mr Kemble Wang in April 2021. He recalled that Mr Wang also recommended surgery if conservative measures did not alleviate his symptoms.
(xiii)During cross-examination, the Applicant was asked about Mr Wang’s letter stating that the Applicant’s work-from-home setup involved him having ‘his hand up high on a ledge for his use of his computer and mouse and keyboard’.[22] The Applicant denied telling Mr Wang this and said his hand ‘was on a table’. Upon returning to see Mr Chua on 14 July 2021, the Applicant said he was diagnosed with a ‘frozen shoulder’. He received an injection into the shoulder (“hydrodilatation”) which resulted in ‘a bit more movement’. He had not undergone manipulation under anaesthetic, which had also been recommended, because there is no guarantee it will work, and his claim was declined by Workcover. The Applicant said he undertook five physiotherapy sessions after the hydrodilatation, which was funded by Medicare. He has not funded any further treatment himself and instead hopes to get it approved through Workcover.
(xiv)The Applicant said he continued working despite his right shoulder symptoms because he was elevated to acting higher duties and ‘didn’t want the shoulder to stop [him]’. He took more breaks and alternated using his computer mouse between both hands. He estimated that he took a total of ‘maybe two or three weeks’ off because of his right shoulder issue, but there has been no change to his workload or duties.
(g)The Applicant was asked about his consultation with Associate Professor Wren in August 2021 in a city office. He said Associate Professor Wren was interstate and they interacted via laptop for about an hour. A physiotherapist in the room assisted with tasks like taking measurements. The Applicant recalled getting approval from the physiotherapist to leave, but subsequently received a call from a receptionist telling him the consultation had not ended. The Applicant had a further 10 or 15-minute conversation with Associate Professor Wren while in his car.
[21] Repetitive Strain Injury.
[22] Exhibit R1, 113.
Medical Evidence
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
Mr Chua was not called as a witness but his letters dated 9 December 2020,[34] 14 July 2021,[35] and 5 August 2021 were taken into evidence without objection. In the December 2020 letter, Mr Chua stated that an O’Brien’s Compression Test ‘was positive for a superior labral tear’, which was confirmed by MRI. In the July 2021 letter, Mr Chua said the Applicant’s symptoms had worsened and adhesive capsulitis developed in the right shoulder. Hydrodilatation was foreshadowed. In the 5 August 2021 letter, Dr Chua opined that the Applicant’s right shoulder injury ‘could be caused by repetitive use and positioning’, relating to ‘overuse and long head of biceps activation’. Mr Chua felt the work from home setup described by the Applicant ‘contributed to the development of symptoms in his shoulder’. He noted there was ‘no known pre-existing condition as the patient reported no symptoms prior to this’.
[34] Ibid 109-110.
[35] Ibid 156-157.
Evidence of Mr Ash Moaveni
Mr Moaveni gave oral evidence and was cross-examined. The Tribunal has considered his ten-page report dated 3 February 2022,[36] and a supplementary report dated 22 September 2022.[37] The former stated in part:
In my opinion, Mr. Heldt’s injury…is consistent with the stated cause…Specifically, Mr. Heldt was working in an awkward position for a number of weeks where his shoulder was held in a semi elevated position for prolonged periods of time in order to be able to use his keyboard and mouse. This is also consistent with Dr. Chua’s opinion (medical report dated 5 August 2021) who stated that the injuries could have been caused by repetitive use and positioning….I believe that Mr. Heldt’s employment has significantly contributed to his condition. Please refer to question 6 for further detail…Taking into account the severity of Mr. Heldt’s symptoms, his lack of response to non-operative treatment offered so far (including medication, physiotherapy and injection), surgery is reasonably required.
…
Dr. Wren opines that to maintain poor position of the shoulder over a long period of time with computer-based activities would be completely unexpected to cause labral tear. I am in disagreement with this statement. Positioning the arm in an elevated position for prolonged periods of time is consistent with overuse of their shoulder
I note that Dr. Wren opines “the labral tear was pre-existing from past events or activities.” As noted, the position of the arm in this awkward position for prolonged periods of time could have certainly significantly aggravated a pre-existing asymptomatic labral tear.
Dr. Wren goes on to opine that the labral tear was a pre-existing aggravation of the reportedly asymptomatic labral problem that occurred because of the consistent poor position of his shoulder whilst undertaking work activities. This is consistent with my opinion.
Dr. Wren opines that this could have resulted in capsulitis. I also agree with this statement. I would also attribute this to the prolonged positioning of the shoulder in an awkward position.
Dr. Wren goes on to state that currently the physical examination findings suggest a full blown frozen shoulder with marked restriction of range of motion. I also found the same physical examination findings. I agree with Dr. Wren’s opinion that this is likely to relate to adhesive capsulitis. This is the reason why Dr. Chua considered the role of manipulation under anaesthesia. I do also consider that at times it can be very hard to differentiate a symptomatic SLAP tear versus adhesive capsulitis. As such, this is why Dr. Kemble suggests the role of shoulder arthroscopy and repair.
Dr. Wren goes on to state that the most appropriate course of action at this point in time is to treat the frozen shoulder. He does not state what treatment he proposes. Taking into account Mr. Heldt's ongoing symptoms as well as a lack of response to treatment given so far, it is reasonable to consider surgery.
[36] Ibid 12-21.
[37] Ibid 24-29.
During his oral evidence Mr Moaveni used an anatomical shoulder model when expressing his opinions, which are summarised as follows:
(a)He became an orthopaedic surgeon in 2009 or 2010 and has done post-fellowships relating to the shoulder, elbow, and wrist. His practice is primarily focussed on shoulder conditions, which he has been doing for approximately a decade. Mr Moaveni is a Member of the Australian Shoulder and Elbow Society (“ASES”), which has approximately 200 surgeons. A prerequisite for membership is that more than 30% of the surgeon’s practice is focussed on the shoulder and elbow. Mr Moaveni said that Mr Chua and Mr Wang are also ASES Members.
(b)Mr Moaveni said he diagnosed the Applicant with a ‘Type IV SLAP Tear’ and a ‘frozen shoulder’. The latter condition is caused by inflammation and scar tissue. The Applicant had ‘partially responded to hydrodilitation’ but his prognosis for recovery is poor because of the time that has passed, continuing symptoms, and reduced function. He agrees with Dr Wong that a biceps tenodesis is justified once shoulder movement is restored.
(c)Mr Moaveni said the history given by the Applicant was ‘consistent across all four practitioners’, which is that he was working from home on a laptop at his dining table, while seated on a ‘low seat and with his arm held at an elevated level’ for ‘long periods’. Mr Moaveni said this ‘positioning for a couple of months’ caused ‘pressure, tension, and activation on the long head of biceps’, which attaches to the superior labrum. Prolonged use of the shoulder in this way caused the Applicant’s injury. Mr Moaveni said photographs in evidence[38] had assisted by providing a visual representation of the Applicant’s work-from-home setup: ‘I could see he was working with his arm in a semi-elevated position’. When asked why the Applicant would continue to maintain an uncomfortable position causing pain in his shoulder as depicted in the home photographs, rather than bring his right arm closer to his body, Mr Moaveni replied: ‘I’m puzzled too’.
[38] Ibid 50-58.
(d)When asked about the reference in his report to the Applicant’s reported difficulty with ‘rock-climbing’,[39] and after being informed of the Applicant’s oral evidence that he never went rock climbing, Mr Moaveni said he had misunderstood this.
(e)When asked if he had ever seen SLAP tears caused by repetitive and prolonged use of a shoulder in the way described by the Applicant, Mr Moaveni said he had. He agreed these injuries were ‘usually’ observed in the ‘setting of sport’ and much of the literature, including by American doctor Steve Snyder, is based on injuries sustained in contact and throwing sports. He observed, however, that ‘everyone’s threshold in sustaining an injury is different’ and referred to ‘atypical’ presentations, like the Applicant’s, where the injury results from a person holding their arm in a ‘semi-elevated’, or ‘awkward’, or ‘unnatural position’ for long periods. Mr Moaveni said he questioned Mr Heldt for ’40 to 50 minutes’ and thought the history provided was ‘very credible’. He ‘could not identify any other reason why [Mr Heldt] hurt himself’. Mr Moaveni said terms like ‘awkward position’ were subjective but nevertheless applied in Mr Heldt’s case. When asked by Ms Serpell to estimate how often he saw cases arising from ‘unnatural positioning [of an arm] in a sustained way’, Mr Moaveni initially demurred, stating: ‘I don’t feel comfortable doing that’. When pressed whether it was ‘more than one or two’, Mr Moaveni agreed it was and estimated it was ‘in the order of 5% to 10%’ of clinical presentations in his practice.
(f)When asked if some force is required to cause a labral tear for someone in their late 30’s, Mr Moaveni again distinguished between typical and atypical cases. He said in Mr Heldt’s case ‘minimal traumatic force’ was involved, which was atypical. When asked to explain why he disagreed with Associate Professor Wren’s report that computer-based activities were not expected to cause a SLAP tear, Mr Moaveni said this was because of his clinical observations and Mr Heldt was a ‘consistent witness’. When asked by Ms Serpell if Mr Heldt holding his right arm in an ‘awkward position could have aggravated a previously asymptomatic tear’, Mr Moaveni said this ‘would have caused significant aggravation’ of such an injury. When asked by Ms Serpell whether work-related duties would have been a ‘significant contributing factor’ to aggravation of a pre-existing SLAP tear, Mr Moaveni responded: ‘Yes’.
(g)During cross-examination Mr Moaveni was referred to photographs of a table at the Applicant’s home on which he used his laptop and mouse. He confirmed this was the setting in which the Applicant held his arm in a semi-elevated position for prolonged periods. When referred to the Applicant’s evidence about adjusting his laptop back and forth and moving his arm position back in towards his body, Mr Moaveni agreed this is a more ‘neutral position’ than that depicted in the home photographs, which showed the Applicant’s arm well away from his body and the mouse well forward. Mr Moaveni said it was in the latter position that the Applicant’s arm was held in a ‘semi-elevated position’. When asked by Mr Ternes if activation of the biceps and therefore stress on the shoulder resulted from just holding the arm in a slightly elevated position, or whether some force is also required to damage the shoulder, Mr Moaveni said there is: ‘subconscious elevation. The biceps starting to tear is the pain you feel’. When put to Mr Moaveni that moving a computer mouse is a hand and wrist movement rather than a shoulder movement, and that resting your wrist or forearm on the table does not actuate the biceps, Mr Moaveni insisted there is still ‘some level of activation’. He accepted, however, that if the arm or wrist is resting on a table there is less biceps activation.
(h)Mr Ternes put to Mr Moaveni that the sort of prolonged, repetitive work where an arm may be held in an unnatural position for a prolonged period relates more to occupations like plasterers, renderers, and painters. Mr Moaveni agreed these were typical presentations, whereas Mr Heldt’s presentation was atypical. When asked if the Applicant taking frequent breaks would cause his shoulder pain to lessen, Mr Moaveni replied: ‘not always’. When asked if the seven or eight days the Applicant took off from work, where he was not using his laptop or mouse and took anti-inflammatories, would cause his shoulder pain to subside, Mr Moaveni replied: ‘not necessarily’. He said anti-inflammatories worked ‘wonderfully well’ in some people but had no effect on others. A ‘non-responder to anti-inflammatories…could suggest a more significant injury to his labral tissue’. Mr Moaveni disagreed with Mr Ternes’ proposition that it was ‘very unlikely’ the Applicant sustained a labral tear from keyboard and mouse use over a seven-week period.
(i)Mr Moaveni agreed labral tears can be asymptomatic in 30 to 40-year-old-people, and that the Applicant’s frozen shoulder ‘complicates the picture’ in determining whether his ‘symptoms are coming from adhesive capsulitis or a SLAP tear’. When asked by Mr Ternes if it was possible that the Applicant already had a SLAP tear in August 2020, Mr Moaveni agreed this was plausible, but ‘lower on the list’ of scenarios he considered. His opinion is that the Applicant sustained an injury from keyboard and mouse use and then ‘went on to develop a frozen shoulder’. When asked by Mr Ternes whether the Applicant could have torn his labrum by lifting a suitcase in February 2014, requiring a consultation with Dr Pereira, Mr Moaveni said he would ‘need more information’ about the suitcase weight and lifting action used.
(j)Mr Moaveni agreed he stated in his report that the Applicant had ‘no prior history of right shoulder problems’. After being informed of the Applicant’s presentations to Dr Pereira on 3, 4, and 21 February 2014, Mr Moaveni said he doubted the Applicant dislocated his shoulder in February 2014, because such a ‘traumatic event’ would have been remembered. He said after a dislocation most people receive analgesia, undergo advanced imagery like an MRI, and physiotherapy for four to six months to strengthen the shoulder. Because the Applicant’s right shoulder issue ‘resolved so quickly’, and the x-ray and ultrasound ordered by Dr Pereira were not performed, it was more likely the Applicant sustained an undefined ‘minor soft tissue injury’, which did not cause any structural damage. Mr Moaveni said he may have changed his opinion if the Applicant returned to see Dr Pereira about his right shoulder problem in February 2014, or if the x-ray and ultrasound was completed and further treatment required. Mr Moaveni observed that the Applicant was not shy about seeking out consultations with general practitioners and hence would have followed up any continuing shoulder concerns.
(k)Mr Moaveni said he found Associate Professor Wren’s references to chair and table heights ‘puzzling’. He said this was ‘not the typical opinion of a surgeon’, but more in the realm of an occupational physician. He disagrees with Associate Professor Wren’s opinion that a slight variation in the height of Mr Heldt’s work-from-home arrangement ‘would not place the shoulder in any unnatural position’.[40] He said the effect of the height discrepancy varies between individuals. Mr Moaveni also stated there are no ‘established guidelines’ relating to the correlation between seat and table differences and injury. He had taken a ‘more pragmatic view’ than Associate Professor Wren in this regard. When asked about Associate Professor Wren’s claim that he was unable to ‘identify a single reported case in the medical literature of a labral tear being attributed…to keyboard, laptop, or computer mouse activities’,[41] Mr Moaveni said he would have to know what search terms were used and on what platform, but would also be very surprised if there were many papers on this subject. That is because the focus of most orthopaedic publications is treatment after injury. Moreover, publications usually focus on typical causes of SLAP tears rather than atypical presentations. Mr Moaveni stated, however: ‘Just because there are no recorded cases doesn’t mean it doesn’t happen’.
(l)Mr Moaveni was asked by Ms Serpell whether he had any comment about the Applicant’s gym attendance for approximately three years until the end of 2019 or 2020, which included some ‘light dumbbell curls’ and was accompanied by significant weight loss. Mr Moaveni did not think the gym attendance was relevant because an acute injury causing a labral tear would have been a ‘very memorable occurrence’, and there was no evidence the Applicant had undertaken exercises that damaged his shoulder like a ‘military press’, or exercising with his elbows away from his body, or using ‘very excessive weights’. Dr Moaveni said he ‘would be very surprised’ if bicep curls with 5kg to 10kg weights would damage the shoulder.
(m)Mr Moaveni said he had read Associate Professor Wren’s reports, and these did not change the opinions he expressed.
[39] Ibid 16.
[40] Ibid 94 [8].
[41] Exhibit R3, 13.
Evidence of Mr Kemble Wang
Mr Wang gave oral evidence and was cross-examined. The Tribunal has considered his two-page report dated 13 April 2021,[42] and a five-page report dated 19 December 2021.[43] The latter stated:
The injury is consistent with the patient's stated cause. Prolonged position of the arm in a non-ergonomic position for use of computer/mouse can result in shoulder tendon tears. I do believe the patient's employment significantly contributed to his condition.
[42] Exhibit R1, 113-114.
[43] Ibid 5-9.
Mr Wang’s oral evidence is summarised as follows:
(a)Mr Wang became a Fellow of the Royal Australian College of Surgeons in 2018-19, and is also a Member of the ASES, with more than 30% of his practice focussed on shoulder and elbow conditions.
(b)Mr Wang was asked about the reference in his report to the Applicant working from home with his ‘hand up high on a ledge for his use of a computer mouse and keyboard’, causing ‘a gradual increase in the pain in his shoulder’.[44] He responded: ‘use of the term ledge was a bit loose’ and he intended to convey ‘something that is higher than usual’. Mr Wang confirmed it was he who used the word ‘ledge’ when dictating one of his reports and not the Applicant.
(c)When asked about the Applicant’s three presentations to Dr Pereira in February 2014 with a right shoulder issue, Mr Wang said it was hard to draw conclusions from dated and limited information, which ‘may be something completely unrelated’ to the Applicant’s shoulder issue in 2020. He doubted the Applicant suffered a right shoulder dislocation in 2014, which would have been ‘a lot more obvious’ and painful. He said the term ‘dislocation’ is often used loosely by patients after feeling a pop or click in the shoulder. Mr Wang agreed it was ‘possible’ the Applicant’s shoulder problem in 2014 caused a labral tear that became asymptomatic and was then aggravated in 2020 by his work-from-home setup.
(d)Mr Wang believes the Applicant’s right shoulder injury is consistent with the stated cause. He said the work from home setup could have caused the labral tear and described the mechanism of injury as pressure on the biceps tendon resulting from an abducted and higher working shoulder position, which creates a ‘reasonable amount of strain’ and ‘pulling on the labral complex’. This results in a superior labral lesion through overuse. Mr Wang said prolonged pressure and strain against any tendon or ligament complex can cause an overuse injury depending on what the arm is doing and for how long: ‘Anything is possible if you’re forced to be in that position’. Mr Wang said he had ‘seen similar patients’ to the Applicant in his practice and stated that although SLAP tears typically occur as the result of a ‘forceful movement’, they also occur ‘with no history of forceful arm movements’.
(e)When asked by Mr Ternes whether someone feeling pain in their shoulder would readjust, Mr Wang responded: ‘One would assume’. Mr Ternes asked further questions about the fine motor skills and relatively limited movements of the hand and wrist to operate a computer mouse and keyboard, which appeared to be a ‘safe activity’. Mr Wang said there was nevertheless a ‘resting tension on the biceps’ and even 5cm to 10cm back and forth active movements of the flexing elbow, with the arm and wrist moving between supported and unsupported positions, could cause the type of injury sustained by the Applicant. He said key factors to consider were ‘timeframes and repetition’. Mr Wang would not express an opinion about the timeframe within which such an injury can occur, which is situational. But it has to be ‘prolonged and ongoing’ use of the arm.
(f)Mr Ternes outlined the relevant chronology and facts relied upon by the Applicant, including a 7 hour and 21-minute working day over approximately seven to eight weeks, taking regular breaks, using a Bluetooth mouse, and repositioning the laptop. He put to Mr Wang that a SLAP tear in these circumstances was ‘unlikely’. Mr Wang disagreed, stating that uncomfortable and elevated positioning of the right arm in the context of the Applicant’s work-from-home setup could have caused the SLAP tear. Mr Wang was unaware of ‘exact literature’ reflecting the Applicant’s circumstances, because the general focus of shoulder research was for sports injuries.
(g)Mr Wang diagnosed the Applicant with a Type II SLAP tear of the labrum, which was different to Mr Moaveni’s diagnosis of Type IV. Mr Wang said it was hard to be sure from diagnostic imaging alone and a definitive diagnosis could only be made through shoulder arthroscopy. Mr Wang thought the Applicant’s ‘primary issue was a SLAP tear’, followed by adhesive capsulitis, which is also known as a frozen shoulder. He described ‘a combination of pathologies’ where a SLAP tear triggers capsulitis because ‘symptoms keep irritating the shoulder capsule’. Although inflammation in the shoulder does not preclude surgical treatment, Mr Wang thinks this needs to be first addressed with medication, physiotherapy, further hydrodilatation, and time, before a biceps tenodesis, being an operative measure, should be performed.
(h)Mr Wang said he had read the other specialist’s reports, and these do not change the opinions he expressed.
[44] Ibid 113.
Evidence of Associate Professor Michael Wren
Associate Professor (“Mr”) Wren gave oral evidence and was cross-examined. The Tribunal has considered his reports dated 20 August 2021,[45] 18 May 2022,[46] and 21 March 2023, which he adopted with one typographical correction.[47] Mr Wren stated:
‘I do not believe that it is in any way reasonable to attribute the type of SLAP tear in Mr Heldt’s shoulder as being due to repetitive light use of the shoulder, specifically not due to use of a computer mouse or keyboard.’
[45] Ibid 195-204.
[46] Ibid 86-95.
[47] Exhibit R3.
Other opinions expressed by Mr Wren include the following:
‘I think there is a difference between Mr Heldt’s positioning of arms and forearms on the tabletop of his dining table relative to the position of his seating being less than comfortable, as opposed to the assertion that Mr Heldt “positioning the arm in an elevated position for prolonged periods”.
…
I do not believe that minor discrepancies between seating height and table height whilst using a laptop computer constitute either “awkward position” or “shoulder held in semi-elevated position” unless Mr Heldt had his laptop a long distance towards the centre of the table such that he was reaching forwards. I have tested the seating position on my own work desktop…
…
I think it is extremely unlikely that Mr Heldt was using his upper limb in an unnaturally raised position whilst using his laptop, unless there was a very substantial seat height / table height discrepancy. This is because it is not normal to hold one’s arms suspended above a table whilst using a computer keyboard (like a pianist holds their arms suspended above the keyboard of a piano). Rather, the normal mode of using a computer keyboard is to rest the flexor surface of the forearms on the edge of the table so that difference in table/chair height are accommodated by different position of flexion of the elbows and different distance of chair from the table, not by holding the arms suspended up in the air unsupported. Such an action would be a weird way to type on a keyboard.
If there was some enormous discrepancy between seat height and table height then the measurement of Mr Heldt’s dining table and seat could be made and compared to his seating and desk height at work. My opinion remains that the work activities of using a mouse and laptop keyboard sitting at a dining room table on a dining chair are extraordinarily improbable to cause a SLAP tear, if we are using the term SLAP tear in the sense to refer to the type of complete detachment of the labrum and biceps anchor which has been shown to be present in Mr Heldt’s shoulder.
…
I am of the opinion that Mr Moaveni and others have likely accepted on face value Mr Heldt’s claim of attribution of symptoms to shoulder position without thinking that assertion through logically, hence leading to an incorrect conclusion.
On the bottom of Page 9 of his report, Mr Moaveni indicated that “Dr Wren goes on to opine that the labral tear was a pre-existing aggravation of the reportedly asymptomatic problem that occurred because of the consistent poor position of the arm whilst undertaking work activities. This is consistent with my opinion.” I would take that paragraph to probably indicate that Mr Moaveni was in agreement with me that work activities might have aggravated symptoms from a pre-existing labral tear, rather than the labral tear having being caused by the work activities.
…
I do not believe that Mr Heldt’s shoulder condition has been contributed to in a significant degree by his employment other than once a structural problem is present in a shoulder (cuff tear or labral tear or other problems) episodes of symptom worsening can occur with activities such as lying on the shoulder, using the arm overhead, reaching for a seat belt, scratching your back, hanging sheets on a line, preparing a meal, driving a car, performing housework or using a computer keyboard or mouse. It is fairly common for patients with structural lesions of the shoulder to report that any or all of the above activities undertaken for prolonged periods of time are more likely to be associated with symptoms, than if the activities are avoided or pursued for a short period of time. To that extent, typing on a keyboard or using a mouse irrespective of the office space setup can result in patients experiencing symptoms who already have a labral tear. I would not, however, consider that the activity of using a computer mouse or keyboard, excepting for resulting in temporary association of symptoms from the underlying condition, could be considered to have contributed in a material way to the condition itself.
Mr Wren’s oral evidence is summarised as follows:
(a)His specialty is trauma surgery and elective surgery of the upper and lower limbs. He has ‘operated on a lot of shoulders’.
(b)Mr Wren saw Mr Heldt ‘via telehealth’ on 30 July 2021 at the request of the Respondent. A qualified physiotherapist was in the room with Mr Heldt who helped take measurements and assist with other tasks. Mr Wren accepted that Mr Heldt gave a consistent history about his ‘way of working’ to the physicians he consulted. He also accepted that notwithstanding the Applicant’s frequent attendances upon general practitioners, there is no evidence about an event or injury to which his current right shoulder diagnosis can be reliably linked. Mr Wren said a possibility that needs to be considered, however, is that there may have been an unreported event, because ‘we don’t know what [Mr Heldt] was doing for 138 hours…per week’ when not working. When asked by Ms Serpell whether that is speculative, Mr Wren responded: ‘If you have an onset of symptoms without explanation you have to consider all possibilities’. When asked by Ms Serpell whether he accepted a patient’s history is the best way to obtain explanations about injury, Mr Wren agreed, but felt that the ‘notion this was work-related seems to have grown over time’. He said attribution to a work-related cause carried the day with the other specialists ‘in the absence of other [right shoulder] problems’. Mr Wren said activities like putting out the washing, or lying on one’s side, or washing hair, or scratching your back, were activities that cause shoulder symptoms, not just operating a mouse and keyboard: ‘Just because [a patient] says using a mouse makes my shoulder hurt, doesn’t mean using a mouse caused it. I’d be extraordinarily surprised if that was the sole cause’.
(c)When referred to Dr Pereira’s medical record dated 21 September 2014 stating the Applicant sustained a shoulder dislocation, Mr Wren said he doubted this for the same reason expressed by the other physicians.
(d)Mr Wren said the Applicant’s gym attendance for about three years prior to his shoulder injury was a more probable explanation for his labral tear ‘than use of a mouse’. He is ‘dubious’ about the Applicant’s claim that he only did dumbbell curls with light weights close to his body. The history he took from the Applicant included use of dumbbells, kettle bells, and, apart from the Applicant’s gym-based activities, he did not know what other activities the Applicant undertook when not working.
(e)Mr Wren said SLAP tears were typically caused by repetitive throwing actions and contact sports, with the commonest cause being dislocation and the second most common being gym work. He said that the actual height differential initially claimed by the Applicant’s lawyer for the work-from-home setup had a 9cm discrepancy, which Mr Wren confirmed with his own calculations. He said the effective seating height of the Applicant disclosed by photographs, was only between 5cm and 9cm lower than the ATO office setup. He stated: ‘using a mouse and keyboard in that context would not cause a labral tear’ because the ‘body adapts to different circumstances’. Mr Wren said there is no significant stress on the shoulders or arms if supported. He opined that the other orthopaedic surgeons failed to consider differential seating heights, and did not think through whether this ‘put the shoulder in a vulnerable position...it wasn’t that vulnerable if the measurements are analysed’.
(f)When asked by Ms Serpell if he considered himself an expert in dining tables, Mr Wren said when information is presented he thinks is odd, he researches it. Mr Wren said he was unable to locate research corresponding with the mechanism of injury claimed by the Applicant. When asked by Ms Serpell if he was claiming it was impossible for the Applicant to sustain a SLAP tear because of his work-from-home setup, Mr Wren responded: ‘you can never say never’, but ‘it is extraordinarily improbable given the [Applicant’s] other activities’.
(g)Mr Ternes summarised Mr Moaveni’s evidence that abduction of the arms away from the body, even if wrists and forearms are resting on a table, might still cause a labrum injury. Mr Wren disagreed, stating that the biceps muscle is inactive when the shoulder is supported, and the shoulder is only ‘under slight tension’.
(h)Mr Ternes summarised Mr Wang’s evidence that a shoulder in the position shown in some photographs[48] caused tension in the humeral head, which rubbed against the glenoid and could cause a labral tear. Mr Wren disagreed and said there would not have been substantial stress in the arm or shoulder from the claimed positioning and a labral tear would only occur at the ‘extremes of abduction causing impingement’. He said the shoulder goes through 180 degrees of movement and impingement does not occur until the arm is at 180 degrees. Mr Wren demonstrated this by holding his right arm straight up and against his right ear. He said even this level of arm abduction represents ‘normal movement of the shoulder’. Mr Wren thinks Mr Heldt has exaggerated his work-from-home positioning in the photographs, which does not reflect frequent re-positioning and adjustment when uncomfortable. Mr Wren insisted that the relatively minor discrepancy in seat height would not have caused him to hold his computer mouse in the way claimed.
(i)Mr Wren said the mechanism of causing a SLAP tear required traction or compression force on the shoulder joint, followed by a rapid movement. He said the humeral head of the shoulder is like a golf ball on a tee; relatively shallow seated. The labrum can get caught by pressure on the humeral head, particularly by ‘unguarded movement, which causes a shear or tearing away of the labrum from the bone’. Mr Wren said the Applicant’s attribution of his shoulder injury to use of a mouse and keyboard was unpersuasive because sitting and using a mouse and keyboard in a ‘slightly too low chair’, with arms away from the body and resting on a table is not ‘known to be a provocative cause’ of labral tears. He said these typically occur in occupations like painters or gutter installers, which involve significant overhead work: ‘I would not believe someone who says pain is from typing’ rather than other activities outside of the 7 hours and 21 minutes they work each day.
[48] Exhibit R1, 50.
findings
This case turns on competing expert evidence regarding causation. The Respondent is liable to pay compensation under s 14 of the Act if the Applicant suffered an ‘injury’ within the meaning of s 5A(1) of the Act, which encompasses a ‘disease’. The term ‘disease’ is defined at ss 5B(1)(a)-(b) as either ‘an ailment suffered by an employee’ or ‘aggravation of such an ailment’ that was ‘contributed to, to a significant degree, by the employee’s employment’. If the Applicant establishes he has a ‘disease’ under s 5B(1) of the Act, then it is an ‘injury’ within the meaning of s 5A(1(a) of the Act. Importantly, there are different degrees of causal connection to employment required by a ‘disease’ and an ‘injury (other than a disease)’.[49] In essence, a higher level of work connection is required to establish a disease / ailment, than an injury simpliciter under s 5A of the Act.[50] The contribution of employment to the ailment must be to a significant degree, which means substantially more than material.[51] Mr Ternes relied on Comcare v Power[52] in support of his submissions about the law of significant contribution, which the Tribunal has considered.
[49] Wuth v Comcare (2022) 174 ALD 472, [87] (Wheelahan J - Griffiths and Snaden JJ concurring).
[50] Australian Postal Corporation v Burch (1998) 156 ALR 483, [486] (Heerey, Sundberg, and North JJ).
[51] The Act, s 5 B(3); Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, [480] (French CJ, Kiefel, Nettle and Gordon JJ; Comcare v Martin (2016) 258 CLR 467 (French CJ, Bell, Gageler, Keane and Nettle JJ).
[52] Comcare v Power (2015) 238 FCR 187, [73]-95].
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
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.
I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
.......................[sgd]...........................................
Associate
Dated: 30 March 2023
Dates of hearing: 21, 22, 23, and 24 March 2023 Counsel for the Applicant:
Ms Cassie Serpell Solicitors for the Applicant: Angela Sdrinis Lawyers Counsel for the Respondent: Mr Ray Ternes Solicitors for the Respondent: Moray & Agnew Lawyers
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