Higgins and Linfox Australia Pty Ltd (Compensation)
[2015] AATA 843
•30 October 2015
Higgins and Linfox Australia Pty Ltd (Compensation) [2015] AATA 843 (30 October 2015)
Division
GENERAL DIVISION
File Number
2013/5095
Re
Michael Higgins
APPLICANT
And
Linfox Australia Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 30 October 2015 Place Sydney
The reviewable decision made 13 August 2013, that Linfox Australia Pty Ltd is not liable to pay compensation to Mr Higgins in respect of a rotator cuff tear left shoulder, is affirmed.
..........................[SGD]..............................................
Deputy President J W Constance
CATCHWORDS
COMPENSATION – claim for shoulder injury – Tribunal found that applicant did not suffer a discrete injury nor an aggravation of a pre-existing condition – pain suffered whilst performing work activity found not to be an aggravation – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14
CASES
Commonwealth of Australia v Beattie (1981) ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
REASONS FOR DECISION
Deputy President J W Constance
30 October 2015
In April 2013 Mr Higgins made a claim in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) in respect of an injury which he claimed he suffered on 31 March 2013 whilst working for Linfox Australia Pty Ltd. As Linfox Australia denied liability to compensate him, Mr Higgins applied to the Tribunal to review the decision.
For the reasons which follow the decision under review will be affirmed.
BACKGROUND
Mr Higgins is 67 years old. He was employed by Linfox Australia as a heavy vehicle driver in 2005.
In August 2010 Mr Higgins was involved in a motor vehicle accident as a result of which he suffered a bulging disc in his neck. This caused him to suffer pain between his shoulder blades on each side of his spine and immediately adjacent to it.
As part of the investigation of the injury to Mr Higgins’ neck, it was found that he had a partial thickness tear of the supraspinatus tendon in his left shoulder. At that stage he was not experiencing pain in his shoulder.
On 11 March 2013 Mr Higgins was engaged in delivering fuel to service stations. Towards the end of his shift he was getting into his truck when the door swung back and hit his upper left arm. He felt pain in his bicep and down his forearm.
When Mr Higgins awoke on the morning of 12 March 2013 his left arm was very sore. He did not attend work. He consulted his general practitioner, Dr Tadros and spent the remainder of that day and the following three days resting.
On 28 March 2013 Mr Higgins again consulted Dr Tadros, as he was suffering pain in his neck and left shoulder. Mr Higgins said that at that time he was suffering ongoing pain from his neck down between his shoulder blades and in addition he had pain from the injury to his left arm where it was hit by the truck door. Dr Tadros referred Mr Higgins for an ultrasound. He also prescribed anti-inflammatory and pain relief medication, although Mr Higgins did not fill the script.
The incident which gave rise to the claim under consideration in this application occurred on 31 March 2013. On that day Mr Higgins was washing the back of trucks to remove logos as the business had been sold. He was holding a soft broom in his left hand and a high-pressure hose in his right hand. In order to reach the area of the logos he had to extend his left arm upwards as far as he could whilst scrubbing hard with the broom. To gain extra height he was jumping up as he was doing this. Mr Higgins said that he suddenly felt a severe pain in his left shoulder. He stopped what he was doing and did not do any further washing that day. He said that he “just watched everybody else go about their business”.[1]
[1] Transcript 05/03/15 p.14
Towards the end of his shift Mr Higgins drove his truck to another depot and then drove himself home. By the time he arrived home at about 4 pm the pain in his left shoulder and arm was getting worse. The following morning his left shoulder was very painful. As it was a public holiday he did not seek any medical attention.
On 2 April 2013 Mr Higgins consulted Mr Cosgrove, a physiotherapist. Mr Cosgrove advised Mr Higgins to have a MRI scan of his shoulder.
Mr Higgins consulted Dr Tadros on 5 April 2013. Dr Tadros referred him for a MRI scan. This was performed on 8 April 2013. On 10 April 2013, Mr Higgins collected the scans and was advised that he had a full thickness tear of the rotator cuff of his left shoulder.
On 11 April 2013 Mr Higgins called his Supervisor, Ms Jeffries, and advised her of the circumstances in which he had injured his shoulder. The following day he attended his workplace and provided a statement concerning the incident. He told his supervisor that he had not reported the injury earlier as he believed it was just a muscle strain from which he would recover. That same day he attended Dr Tadros with the scans. Dr Tadros referred Mr Higgins to Dr Nabavi, an Orthopaedic Surgeon.
On 17 April 2013 Mr Higgins completed a claim form seeking compensation for a rotator cuff tear of the left shoulder.[2]
[2] Exhibit R1 p.20.
Mr Higgins consulted Dr Nabavi on 18 April 2013 and provided him with the scans. Dr Nabavi confirmed that he had a full thickness tear of his left supraspinatus tendon. He recommended urgent surgery to repair the injury so as to obtain the best recovery results.
On 26 April 2013 Dr Nabavi performed a surgical repair of Mr Higgins’ supraspinatus tendon.[3] Following this procedure Mr Higgins was in extreme pain for four or five days. He underwent physiotherapy to assist his rehabilitation.
[3] Exhibit R1 p.35.
RELEVANT LEGISLATION
Subsection 14(1) of the Act provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
In subsection 5A(1) injury is defined to mean, in part:
……
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment…. .
ISSUES FOR DETERMINATION
The following issues arise for determination.
(a)Did Mr Higgins suffer a discrete injury on 31 March 2013, which arose out of, or in the course of, his employment by Linfox Australia Pyr Limited?
(b)If not, did he suffer an aggravation of a physical injury that was an aggravation that arose out of, or in the course of, that employment?
CONSIDERATION
When the hearing of this application commenced, Mr Higgins’ case was put solely on the basis that he had suffered a discrete injury, being a tear of the supraspinatus tendon of the left shoulder, while washing the back of a truck on 31 March 2013. Mr Higgins has maintained this position. However, during the hearing it became necessary to consider whether Mr Higgins had suffered an aggravation of a pre-existing condition.
Issue 1: Did Mr Higgins suffer a discrete injury on 31 March 2013, which arose out of, or in the course of, his employment by Linfox Australia Pty Limited?
Mr Higgins’ evidence
Mr Higgins said that as a result of the motor vehicle accident in 2010 he suffered pain in the muscles immediately to the left and right of his spine, directly behind his neck. The pain was ongoing in March 2013 and it was this pain which caused him to consult Dr Tadros on several occasions. The consultations on 12 March 2013 and 28 March 2013 were in respect of both the pain between his shoulder blades and the injury to his arm when he was hit by the truck door.
Mr Higgins described the pain he felt while washing the truck as different to the pain he felt between his shoulder blades. He said the pain he felt when washing the truck was a very sharp pain in his left shoulder, not between his shoulder blades.
Medical evidence
On 28 May 2013 Dr Tadros reported:
History:
Mr Higgins presented on 12/4/13 and provided the following history:-
At work on 31/3/13 he was cleaning the back of his tanker with a broom and high pressure washer, he extended his left upper limb and felt pain in his left shoulder that continued and was not responding to analgesics.
……
Opinion:
His current condition is related to his employment and precipitated by the incident on 31/3/13.[4]
[4] Exhibit R1 p.56-57.
Mr Cosgrove reported on 12 June 2013 that:
On examination (2/04/13) Mr Higgins reported increasing pain on raising his arm, local muscle tightness over his scapular elevators and deltoid muscle, reported pain on resisted glenohumeral external rotation with significant loss of strength. Due to the sudden onset of symptoms and the loss of external rotation and strength Mr Higgins was advised of an urgent need for an orthopaedic surgeon consultation and MRI. It was explained to Mr Higgins that repair of an acute rotator cuff tear is recommended within one month of injury for the best outcome.[5]
[5] Exhibit R1 p.65.
An ultrasound study of Mr Higgins’ left shoulder was carried out in June 2011.[6] It demonstrated that he had a partial supraspinatus tendon tear which measured 12 mm in width and was located 14 mm from the long head of the biceps. When an MRI of Mr Higgins’ left shoulder was conducted on 8 April 2013[7], it showed a complete or near-complete full thickness tear of the supraspinatus tendon with mild tendon retraction. The operation report by Dr Nabavi dated 26 April 2013[8] confirmed the existence of a full thickness tear.
[6] Exhibit R1 p.9.
[7] Exhibit R1 p.11.
[8] Exhibit R1 p.35.
Dr Bodel, Orthopaedic Surgeon, assessed Mr Higgins in January 2014 at the request of his Solicitors. He provided a report dated 30 January 2014[9] and gave evidence.
[9] Exhibit A@.
In the opinion of Dr Bodel there probably was a change in the pathology of Mr Higgins’ shoulder between the time of the ultrasound and the MRI scan. He understood that there had been a change in Mr Higgins symptomology as a consequence of the events of 31 March 2013. In his view, the type of mechanism involved in that activity could cause a progression of the pathology which existed prior to that event. He was under the impression that there was “a substantive change and that it was indicative of progression of the pathology”.[10] Dr Bodel was also of the opinion that the vast majority of the population of Mr Higgins’ age-group is likely to have a tear, either partial or full thickness, which could be asymptomatic.
[10] Transcript 05/03/15 p.74.
Associate Professor McGill, Consultant Rheumatologist, assessed Mr Higgins in December 2013 at the request of the solicitors for Linfox Australia. He provided a report dated 4 December 2013[11] and gave evidence.
[11] Exhibit R4.
Professor McGill reported:
I think it is very likely that the extension of his long-standing rotator cuff tear occurred during March 2013 prior to the work activities he performed on 31 March 2013. Elevating a broom above shoulder height would be sufficient to cause pain in the shoulder that had a full thickness tear of the rotator cuff but would not be expected to cause or significantly aggravate the tear. Bumping his left shoulder against the door of his truck cabin would also not be expected to significantly influence the rotator cuff.
Professor McGill’s reasoning was that the activity involved in washing the truck was not the sort of action over that period of time which would be expected to cause a tear or change a tear. He gave examples of traumatic episodes such as falling onto a shoulder or falling onto an outstretched arm as the type of activity that can cause an acute tear or cause a change in the nature of a tear.
Conclusion
Taking into account all of the medical evidence, I am not satisfied that Mr Higgins suffered a full thickness tear of his supraspinatus tendon on 31 March 2013 or that he worsened the extent of the existing tear. In reaching this conclusion I have preferred the evidence of Professor McGill to that of Dr Bodel. I have done so because I formed the view that Professor McGill had taken a more detailed and careful history from Mr Higgins. I found his explanation as to why he reached the conclusion clearer and more persuasive than that given by Dr Bodel. Therefore, I am not satisfied that Mr Higgins suffered a discrete injury to his shoulder on 31 March 2013.
Issue 2: Did Mr Higgins suffer an aggravation of a physical injury that was an aggravation that arose out of, or in the course of, his employment?
It is not necessary that there has been a pathological change in a pre-existing injury suffered by a person to show that there has been an aggravation of that injury.
In Commonwealth of Australia v Beattie [12] the Full Court of the Federal Court considered the meaning of injury as defined in section 5 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). In that Act injury was defined to mean:
Any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease.
[12] (1981)35 ALR 369.
Although the above definition includes reference to acceleration or recurrence of a physical injury, both that definition and the definition of injury under consideration in this matter (see paragraph 19) include an aggravation of a physical injury. In my view the principles set out by the Federal Court are applicable in this matter.
The Full Court considered whether “incapacitating pain brought on by activity undertaken in the course of employment could constitute an aggravation of the physical injury, notwithstanding that such pain is not brought about by any further pathological change”.[13] The Court said:
The Federal Broom case is, therefore, subject to the differences in the legislation, an authority which establishes that there may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology. Whether there is an exacerbation or an aggravation in such a case will be a question of fact.
……
It does not follow in every case that a worker with a pre-existing injury, who carries out work and as a result suffers pain, will have suffered an aggravation of his injury. The worker whose fractured leg is encased in plaster will be unable to put it to the ground without suffering pain and other disability. But that is not a case of aggravation. In such a case any incapacity for work arises only by reason of the pre-existing injury. The evidence earlier recounted shows this to be a very different type of case. Thus each case must depend upon its own facts. For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.[14]
[13] At p.375.
[14] At pp.50-51. The reference to the Federal Broom case is a reference to Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626.
In view of the judgement of the Full Court it is necessary to decide whether the pain suffered by Mr Higgins on and following 31 March 2013 was an injury within the definition in section 5A of the Safety, Rehabilitation and Compensation Act. I have already decided that I am not satisfied that there was a pathological change in the condition of Mr Higgins’ left shoulder on that day.
I accept Mr Higgins’ evidence that he suffered pain in his shoulder on 31 March 2013. His evidence in this regard is corroborated by the evidence of Mrs Higgins, his wife. She said that he arrived home from work that day and complained of severe pain in his left shoulder. I am satisfied also that this episode of pain continued for some days, causing Mr Higgins to seek medical advice in relation to it.
However, some aspects of Mr Higgins’ evidence as to the nature of the pain he suffered are unsatisfactory. As a result, I am not satisfied that the nature of the pain he experienced on 31 March 2013 was as he described when he gave evidence.
When he was giving evidence, Mr Higgins was asked what he did when he experienced the pain in his shoulder. He said:
I just stopped doing what I was doing. I just yelled out in pain and just stopped doing and just cradled my arm and just watched everybody else go about their business.”[15]
Mr Higgins said that there were two other drivers with him when he suffered the pain but that he did not tell them what had happened. He said the reason for this was that “he was not on very good terms” with one of them and he would not have told the other as he was a trainee driver. He did not tell anyone else at work that day what had happened.[16]
[15] Transcript 05/03/15 p.14.
[16] Transcript 05/03/15 pp.14-15.
In his statement made 21 June 2013[17], Mr Higgins stated:
My left arm was fully extended while I was scrubbing Gary’s truck and I felt a pain in my left shoulder area. I don’t remember if I said anything to Gary or if he heard me because it was a noisy environment we were working in, especially with a high-pressure cleaner working. I remember I was trying to help him carry hoses and parts to the container, but he told me not to worry.
Apart from Mr Higgins saying that he did not remember whether he said anything to Gary (one of the other drivers present), it is unlikely that Gary told Mr Higgins not to worry about carrying hoses and parts if he was unaware that anything untoward had happened.
[17] Exhibit A1.
Further, I am satisfied on the balance of probabilities that at first, Mr Higgins did not inform the physiotherapist, Mr Cosgrove, or Dr Tadros, his general practitioner, that he had suffered an unusual and particularly severe episode of pain at work on 31 March 2013. Mr Higgins sought treatment from Mr Cosgrove on 2 April 2013 and consulted Dr Tadros on 5 April 2013.
Although difficult to read, I am satisfied that Mr Cosgrove’s notes of the treatment given to Mr Higgins on 2 April 2013[18] do not refer to the incident on 31 March 2013, although they do refer to an incident two years previously. Mr Higgins agreed with this. There was another consultation on 9 April 2013. It is not until the third consultation following the incident (on 11 April 2013) that there is mention of cleaning trucks and overhead work.
[18] Exhibit R2.
Dr Tadros’ consultation notes of 5 April 2013 do not refer to an incident on 31 March 2013. They read:
pain lt shoulder persisted
painful abduction.
During a consultation on 12 April 2013, Dr Tadros made a specific note of the circumstances in which Mr Higgins said he was injured.[19] In his report of 28 May 2013[20] Dr Tadros specifically states that Mr Higgins presented on 12 April 2013 and provided the history of the incident of 31 March 2013. I am satisfied that Dr Tadros would not have failed to record such a history had it been given to him on an earlier occasion.
[19] Exhibit R1 p.60.
[20] Exhibit R1 p.56.
Mr Higgins described in considerable detail the location of the pain he suffered following the motor vehicle accident in 2010 and prior to 31 March 2013. In evidence he was specific and adamant that the pain was between his shoulder blades at the back of his neck in the muscles immediately adjacent to his spine. He said that prior to 31 March 2013 he had not otherwise suffered pain in his left shoulder.[21]
[21] Transcript 05/03/15.
This evidence is not supported by the medical records. The consultation notes made by Dr Tadros on 12 March 2013 and 28 March 2013 both refer to “pain neck and Lt shoulder”.[22] Further, on 28 March 2013 Dr Tadros recorded a possible diagnosis of a tear of the left rotator cuff. It is unlikely that he would have done this had Mr Higgins described the pain as being at the back of his neck.
[22] Exhibit R1 p.60.
At the consultation on 5 April 2013 (i.e. after the incident of washing the truck), Dr Tadros refers to the pain in the left shoulder as having “persisted”. This suggests that he was treating the pain then described by Mr Higgins as a continuation of the pain described during previous consultations.
Mr Higgins was involved in the motor vehicle accident on 14 August 2010. On 26 October 2010 he consulted Dr McKechnie, Neurosurgeon, following referral by Dr Tadros. In his report to Dr Tadros on 3 November 2010,[23] Dr McKechnie stated:
he suffered a motor vehicle accident on 14 August this year when his vehicle was rear-ended. He had his head turned to the right side at the moment of impact and has since developed neck pain radiating across the left shoulder.
……
……
His symptoms could relate to a cervical radiculopathy or rotator cuff injury.
Again, this suggests that Mr Higgins had experienced pain in his left shoulder other than that he described when he gave evidence.
[23] Exhibit R3.
Dr Bodel provided a report dated 18 March 2015[24] which specifically addressed the possibility of Mr Higgins having suffered an aggravation of a pre-existing injury. He also gave evidence.
[24] Exhibit A6.
In the opinion of Dr Bodel the events of 31 March 2013 caused an aggravation of a pre-existing injury.[25] He noted that the level of intensity of the pain suffered by Mr Higgins appeared clinically to have increased after 31 March 2013, leading to the need for further investigation. In his view “the increased symptomatology… is consistent with a probable change in the underlying pathology leading to the need for the further investigation and treatment.”
[25] Exhibit A6 p.1.
Professor McGill also provided an additional report[26] and gave evidence. He maintained his view that the activity of the holding the broom while cleaning the truck was likely to have influenced symptoms at the time and on subsequent days, but was not likely to have made any difference to the underlying degenerative changes or the development of a tear.
[26] Exhibit R6.
I prefer the evidence of Professor McGill to that of Dr Bodel on this issue. When questioned by Counsel for Linfox Australia, Dr Bodel said that “it is hard to be sure what actually happened” and that there is “no hard investigative evidence” of structural change in Mr Higgins’ shoulder on 31 March 2013.[27]
[27] Transcript 16/07/15.
On the basis of the evidence to which I have referred, I am satisfied that since 2010 at the latest, Mr Higgins has experienced pain in his left shoulder, other than the pain he described as being in the muscles at the back of his neck. I am not satisfied that the pain he experienced on 31 March 2013 was an aggravation of his pre-existing condition. Therefore it was not an injury within the meaning of section 5A of the Act. Rather, I am satisfied that the pain he experienced was a symptom of a pre-existing injury to his left supraspinatus tendon. It was pain which happened to be experienced by him whilst working, similar to the pain which would be suffered by a worker with a broken leg, as described by the Federal Court in Commonwealth v Beattie.
CONCLUSION
The reviewable decision made 13 August 2013, that Linfox Australia Pty Ltd is not liable to pay compensation to Mr Higgins in respect of a rotator cuff tear left shoulder, will be affirmed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance ............................[SGD]............................................
Associate
Dated 30 October 2015
Date(s) of hearing 5-6 March 2015; 16 March 2015 Date final submissions received 16 July 2015 Counsel for the Applicant J Moffet Solicitors for the Applicant LHD Lawyers Counsel for the Respondent C Clark Solicitors for the Respondent Moray & Agnew Lawyers
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