Hudson and TNT Australia Pty Ltd (Compensation)
[2021] AATA 3526
•22 September 2021
Hudson and TNT Australia Pty Ltd (Compensation) [2021] AATA 3526 (22 September 2021)
Division:GENERAL DIVISION
File Number(s): 2020/0408
Re:Aidan Hudson
APPLICANT
TNT Australia Pty Ltd And
DECISION
Tribunal:L M Gallagher, Member
Date:22 September 2021
Place:Perth
The Reviewable Decision dated 12 December 2019, being that:
(a)The Applicant’s claim in respect of his “left elbow pain” injury did not arise out of or in the course of employment pursuant to s 6 of the Safety, Rehabilitation and Compensation Act 1958 (Cth) (SRC Act); or
(b)it was not liable under ss 5A, 14, 16 and 19 of the SRC Act to pay the Applicant compensation for his claimed “left elbow pain” injury,
is affirmed.
...............[Sgd].........................................................
L M Gallagher, Member
CATCHWORDS
COMPENSATION – Safety, Rehabilitation and Compensation Act 1958 – Workplace Injury – definition of injury (other than a disease) – whether Injury arose during course of employment – whether TNT had a present liability to pay compensation – whether injury resolved or ceased – decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1958 (Cth) ss 5A, 6, 14, 16, 19
CASES
Comcare v Stefaniak [2020] FCA 560
D’Lima and Australian Postal Corporation [2016] AATA 495 [115].
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 138
Pearson and Prosegur Australia Pty Ltd (Compensation) [2021] AATA 312
Re Kirby and Collector of Customs (1989) 20 ALD 369
Re Williamson and Comcare [2019] AATA 4774
Sheppard and Comcare [2014] AATA 157 [95]
REASONS FOR DECISION
L M Gallagher, Member
22 September 2021
THE APPLICATION
On 28 October 2019, the Respondent determined that:
(a)The Applicant’s claim in respect of his “left elbow pain” injury did not arise out of or in the course of employment pursuant to s 6 of the Safety, Rehabilitation and Compensation Act 1958 (Cth) (the SRC Act); or
(b)it was not liable under ss 5A, 14, 16 and 19 of the SRC Act to pay the Applicant compensation for his claimed “left elbow pain” injury,[1]
(the Original Decision).
[1]R1, T27.
On 12 December 2019, the Respondent affirmed the Original Decision (the Reviewable Decision).[2]
[2]R1, T29.
The Applicant seeks review of the Reviewable Decision.[3]
[3]R1, T1.
INTRODUCTION AND BACKGROUND FACTS
The Applicant has been employed by the Respondent since 6 May 2019 and has held the position “Casual PUD driver/courier” since 7 June 2019.[4]
[4]R1, T15, p32, T20, p41 and T21, p47.
An incident report completed by the Applicant states that on 27 June 2019, at 2.45pm:[5]
I pulled up at the STW loading dock to do a two consignment pick up for those items. I got out of the vehicle scanned the items (tyres)* and started lifting them into the van. I felt a minor click in my left elbow followed by a pinching pain. It is still painful when fully extended or lifting heavy items.
*large tyres 17km 40cm radius roughly
iced and wrapped overnight
loaded vehicle on 28/6/19
[5]R1, T3, p13.
A report completed on 27 June 2019 by the Applicant’s team leader indicates that the Applicant called his team leader around 3.15pm to notify him of a sore elbow.[6] The report states the team leader assessed the Applicant’s injury and decided it was safe to continue but advised the Applicant to see the doctor in the morning, if his elbow was still sore.
[6]R1, T4, pp 16 and 17.
On 28 June 2019, the Applicant consulted Dr Tan, General Practitioner (GP), who diagnosed him with ‘Left CET tendinosis/strain.’[7] Dr Tan certified the Applicant fit for modified duties from 28 June 2019 to 5 July 2019, advising no heavy lifting with the left harm in excess of 5 kilograms and to avoid excessive compensatory lifting with the right arm.[8]
[7]R1, T5. Dr Ching Tan is a GP at Sonic HealthPlus, who provide general medical and occupational healthcare services.
[8]R1, T5, p19.
The Applicant’s return to work (RTW) plan for June and July 2019 included physiotherapy as part of his treatment regime.[9]
[9]R1, T7, p21 and T9, p24.
On 5 July 2019, Dr Tan certified the Applicant was fit for modified duties from 5 July 2019 to 12 July 2019 and with the capacity to lift up to 10 kilograms with his left arm or 15 kilograms with both arms combined.[10]
[10]R1, T8, p23.
On 12 July 2019, Dr Tan issued the Applicant a final certificate of capacity indicating that the Applicant had full capacity to work from that date.[11]
[11]R1, T10.
A further medical certificate issued by Dr Tan on 17 September 2019 indicates that on 16 September 2019, the Applicant reported ‘left elbow pain whilst turning wheel clockwise’ that day.[12] On the certificate, Dr Tan reported his clinical findings and diagnosis as ‘? recurrent CET tendinopathy.’[13] Dr Tan referred the Applicant for imaging of the left elbow and NSAID.[14] Dr Tan certified the Applicant fit for modified duties from 17 September 2019 to 24 September 2019, with driving as tolerated and no lifting greater than 15 kilograms.[15]
[12]R1, T11, p 26
[13]R1, T11, p 26.
[14]R1, T11, p 27. NSAIDs are nonsteroidal anti-inflammatory drugs.
[15]R1, T11, p 27.
Again, the Applicant’s RTW plan indicated that physiotherapy was part of the Applicant’s treatment regime for September and October 2019.[16]
[16]R1, T12, p 28; T15, p 15; T17, p 35; T19, p 38, T25, p 53; T30; T31.
A TNT Injury Management Early Intervention file note dated 18 September 2019 recorded that:[17]
IW (injured worker) advised there was nothing significant to cause aggravation – General driving 4 tonne truck extended elbow and felt pain.
[17]R1, T30, p 70.
A report from an x-ray and ultrasound of the Applicant’s left elbow conducted on 19 September 2019 indicated:[18]
No cause was identified to explain the patient’s symptoms.
[18]R1, T13, p 29.
On 24 September 2019, Dr Tan certified that the Applicant was fit for modified duties from 24 September 2019 to 2 October 2019 with no repetitive heavy lifting (greater than 15 kilograms) with his left arm and avoidance of excessive compensatory heavy lifting with his right arm.[19]
[19]R1, T14.
On 2 October 2019, Dr Tan certified that the Applicant was fit for modified duties from 2 October 2019 to 9 October 2019.[20] The restrictions imposed by Dr Tan in his certificate dated 24 September 2019 continued,[21], in addition to the restriction that the Applicant required a runner/assistant while performing deliveries.[22]
[20]R1, T16, p 33.
[21]See [14] above.
[22]R1, T16, p 33.
On 7 October 2019, Dr Tan certified that the Applicant was fit for modified duties from 7 October 2019 to 10 October 2019, following the Applicant’s reported “[a]ggrevation [sic] over Friday and weekend” with “[n]o obvious precipitant.”[23] The medical certificate shows that Dr Tan imposed the following revised work restrictions:[24]
Office duties only
No driving manual vehicles or operating industrial equipment.
No ladders
[23]R1, T18, p 36.
[24]R1, T18, p 37.
On 7 October 2019, the Applicant lodged his claim for workers’ compensation in relation to the incident on 27 June 2019,[25] which the Applicant described as:[26]
Lifting a 17kg tyre that was loose (not packaged within carton)
[25]R1, T20.
[26]R1, T20, p 43. See also R1, T21, p 46.
A report from an MRI scan[27] of the Applicant’s left elbow, dated 8 October 2019, found no pathological abnormality.[28]
[27]The Applicant was referred for the MRI by Dr Tan (R1, T22).
[28]R1, T22, p 48.
On 9 October 2019, Dr Tan certified that the Applicant was fit for modified or alternative duties rom 9 October 2019 to 23 October 2019, those modified duties being:[29]
No lifting >5kig with left arm
Prefer office duties without repetitive use of left elbow
No ladders. Can drive if not impaired by medications
[29]R1, T23.
On 23 October 2019, Dr Tan issued a further medical certificate indicating the Applicant had some capacity to work from 23 October 2019 to 30 October 2019, with modified duties including no heavy lifting greater than 10 kilograms with his left arm and to trial alternative days of driving trucks with administrative duties.[30] On the medical certificate, Dr Tan commented:[31]
If no issues -> can progress to full time truck driving if no issues
[30]R1, T25.
[31]R1, T25, p 53.
On 28 October 2019, a delegate of the Respondent made the Original Decision.[32]
[32]R1, T27. See [1] above.
The Applicant then returned to consulting his usual GP, Dr Rupinder Singh,[33] who certified him unfit for work from 31 October 2019 to 3 February 2020.[34]
[33]See A1 [18] and R1 [15].
[34]Located in documents produced under summons from Hale Road Medical Centre (not tendered) (HRMC records).
On 10 November 2019, Dr Singh requested a report from Dr Tan,[35] noting that:[36]
[t]here seem [sic] to be an issue with TNT where they felt his repeat injury was not relevant which I feel it is and it would be beneficial to him if a written report by your self [sic] is sent to his management team.
[35]Located in HRMC records. See also A3; R6, p 3.
[36]See R10, p 3.
In his responsive report dated 12 November 2019, Dr Tan included the following comment:[37]
In response to your query if the injury in Sept was a work related event, I think we have to appreciate this is a complex scenario. I believe the injury in June has caused some muscle deconditioning and this certainly would have contributed to the injury he sustained in September, as his usual duties involve significant repetitive heavy lifting and manual handling.
If there is ongoing doubt as to whether the injury is a compensable event under the relevant legislation Aidan should be referred for an independent medical assessment by an occupational physician. This request is usually initiated by an insurer or solicitor.
[37]A3. See also R10, p 3.
On 13 November 2019, the Applicant requested reconsideration of the Original Decision.[38] In his request, the Applicant stated:[39]
In reading all of the documentation I feel it is clear that the injury of the 17th of September is related due to [sic] underlying issues from the previous injury from June.
[38]R1, T28.
[39]R1, T28.
On 12 December 2019, a delegate of the Respondent made the Reviewable Decision.[40]
[40]R1, T29. See [2] above.
On 9 January 2020, Dr Singh referred the Applicant for an ultrasound of the left elbow. The findings were reported:[41]
[41]R13.
FINDINGS:
Aidan presented to our clinic for ultrasound guided injection of the left proximal forearm as requested.
However on clinical examination, he verbalised no pain at the elbow today.
He verbalised that he feels the pain and clicking sound while he does some specific activities of the elbow.
…
I have reviewed the previous ultrasound report from PRC performed on 19/09/2019, which was also unremarkable.
…
We again did a diagnostic scan today.
The common extensor origin, the common flexor origin, biceps and triceps tends are intact and unremarkable without any evidence of tendinopathy. No evidence of olecranon bursitis. Ulnar nerve is unremarkable. No elbow joint effusion is seen.
…
CONCLUSION:
Normal examination today and he is asymptomatic. We discussed the benefit and side effects of steroid injection and a cortisone injection was not deemed necessary at present and as such not performed. Aidan will discuss with you for further management.
On 22 January 2020, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) seeking review of the Reviewable Decision.[42]
[42]R1, T1
On 3 February 2020, Dr Singh certified the Applicant fit for his pre-injury work.[43]
[43]See HRMC records.
On 11 February 2020, Dr Singh reported:[44]
Aidan Hudson had sustained an injury to his left elbow extensor tendon.
However scans did not pick anything up but clinically he was quite tender and this is in line with his injury sustained from work. Diagnosis has been made on clinical judgement.
[44]See HRMC records.
On 28 April 2020, and at the Respondent’s request, Dr Michael Bowles, Consultant Occupational Physician, provided a report on his consultation with the Applicant on the same date.[45] In his report, Dr Bowles gave the following opinion regarding diagnosis:[46]
I have no medical diagnosis for Mr Hudson’s current complaints.
There is no recognisable injury or condition identified. However, pain can persist for a number of reasons including the claims process itself which beings on a reporting bias, hypervigilance and a collection of normal bodily complaints.
In that regard, the complaint that occurred on 16 September 2019 in my view fits nicely into that bracket. Reference is made in the GP notes which indicated pain in left elbow settled afterwards with movement painful. The following morning loading truck with 20 kg boxes possible without difficulty. However, the GP found reduced movement.
Subsequent investigations were normal. This would be in keeping with my thought that no significant specific injury was sustained at the time. That is not to say that symptoms did not occur, with the evidence suggesting symptom [sic] did occur. However, there is no musculoskeletal symptom that is a diagnosed injury or condition. It may be explained by the fact that radiology is not sensitivity or specific enough to identify a minor muscle tear or sprain. One also gets musculoskeletal discomfort as a physiological response to activity.
…
As noted, a specific diagnosis is not possible. Generally one does not need to make a diagnosis for these type of complaints as one would view them as a minor incident and one would expect complaint [sic] to settle quickly as it appeared to do so, with no sequelae.
[45]R11.
[46]R11, pp 8, 9 and 11.
A report dated 8 May 2020 on CT scan of the Applicant’s left elbow conducted on the same date and requested by Dr Bowles identified no cause for the Applicant’s symptoms.[47]
[47]Attachment to R12.
On 14 May 2020, Dr Bowles’ supplementary report stated that the CT scan of the Applicant’s left elbow conducted on 8 May 2020:[48]
…was reported as normal…
There is no bony or significant injury sustained…
There is no evidence of a definable medical condition such as a tennis or golfer’s elbow.
[48]R12.
LEGISLATIVE FRAMEWORK
Section 14(1) of the SRC Act relevantly 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.
Section 5A(1) of the SRC Act defines ‘injury’ as follows:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
‘Disease’ is defined in s 5B(1) of the SRC Act as follows:
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 Commonwealth or a licensee.
(Original emphasis.)
Section 4(1) of the SRC Act defines ‘ailment’ to mean:
any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development.
ISSUES
The issue for the Tribunal is whether the Respondent is liable under s 14 of the SRC Act to pay compensation to the Applicant for his claimed left elbow condition. This in turn requires the Tribunal to determine:
(a)the appropriate diagnosis of the Applicant’s left elbow condition; and
(b)whether the Applicant’s diagnosed condition is an ‘injury’ as defined in s 5A(1) of the SRC Act. That is, whether the condition is:
(i)an injury (other than a disease) as defined in s 5A(1)(b) of the SRC Act; or
(ii)a disease as defined in s 5B(1) of the SRC Act.
As the application has not been pressed on grounds that the Applicant’s condition is a ‘disease’ as defined in the SRC Act, and as the evidence does not give rise to such a claim, the Tribunal’s consideration focuses on whether the Applicant’s claimed condition, as diagnosed, is an injury other than a disease, pursuant to s 5A(1)(b) of the SRC Act.
EVIDENCE
The matter was heard in Perth on 9 June 2021, with the parties appearing at the hearing in person.
The Applicant was represented by his father, Mr Mark Hudson. The Respondent was represented by Ms Kate Slack, Counsel. Ms Slack was instructed by Ms Danti and Ms Waldron-Hartfield from Moray & Agnew Lawyers.
The Applicant and Dr Bowles gave oral evidence and were cross-examined at the hearing.
Evidence before the Tribunal
The Tribunal received the following evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 6 November 2020 (A1);
(b)Applicant’s impact statement filed on 10 November 2020 (A2);
(c)Letter from Dr Tan dated 12 November 2019 (A3);
(d)Section 37 T documents (T1-T31), comprising 81 pages and filed on 10 February 2021 (R1);
(e)Respondent’s SFIC dated 11 September 2020 (R2);
(f)TNT Injury Management Early Intervention File Notes (various dates) (R3);
(g)TNT CMS file note dated 24 October 2019 (R4);
(h)Respondent’s email dated 18 May 2020 responding to summons request (R5);
(i)Email from Mr Herman Sasulu, TNT Claims Officer to QBE dated 15 November 2019 (R6);
(j)Applicant’s claim file provided by Mr Jason Chalcraft (Applicant’s supervisor) filed on 18 May 2020 (R7);
(k)Emails from Ms Tracey Birch, HR Specialist, TNT (various dates) (R8);
(l)TNT First Aid Register of Injuries Record reported 17 September 2019 (R9);
(m)Briefing letter to Dr Bowles from Moray & Agnew Lawyers dated 22 April 2020 (R10);
(n)Report by Dr Bowles dated 28 April 2020 (R11);
(o)Supplementary report by Dr Bowles dated 14 May 2020 (R12);
(p)Report on ultrasound left elbow dated 9 January 2020 (R13); and
(q)Extract from consultation notes of Dr Tan dated 12 July 2019 and 17 September 2019 (R14).
At the hearing the Respondent provided an outline of closing submissions dated 9 June 2021.[49]
Having reviewed all of the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence. Relevant aspects of the evidence are referred to below.
[49]Transcript p 48.
Mr Hudson’s evidence
In his impact statement, the Applicant stated:
(a)His general understanding of the consultation with Dr Tan on 28 June 2019 was that he was diagnosed with ‘golfer’s elbow.’[50]
(b)For the next few weeks he saw his GP and physiotherapist for treatment, was happy with how his treatment had progressed and was able to return to full duties.[51]
(c)On 16 September 2019, he felt a small twinge in his left elbow when he turned a truck out of the depot.[52]
[50]A1, p 1.
[51]A1, p 1.
[52]A1, p 1
At the hearing, the Applicant told the Tribunal that: [53]
(a)On 27 June 2019 incident, the work incident occurred at roughly 2.45pm and he phoned his supervisor at about 3.15pm;
(b)he continued to work for the rest of his shift on 27 June 2019, using only his right arm;
(c)Dr Tan certified him fit for normal hours on restricted duties when he attended on the following day; and
(d)he agrees that on 12 July 2019 he was certified as having full capacity for work.
[53]Transcript, p 28 [30]–[45]; p 29 [5].
Mr Hudson said that at that point in time (in July 2019) he believed his left elbow condition was recovered[54] and that there was discomfort[55] but no tenderness[56] in his left elbow.
[54]Transcript, p 29 [25]
[55]Transcript, p 29 [40].
[56]Transcript, p 30 [10]–[15].
Mr Hudson said he returned to normal work duties and normal hours and did not experience any pain between then and 16 September 2019.[57]
[57]Transcript, p 30 [20]–[30].
Mr Hudson said that when he reported the pain associated with turning the steering wheel in September 2019, there was no particular incident involved.[58]
[58]Transcript, p 30 [30].
Dr Bowles’ evidence
At hearing, Dr Bowles stated that there is no radiological evidence of a physiological change in the Applicant’s left elbow, noting the MRI and CT scan that were performed were reported as normal.[59]
[59]Transcript, p 35 [20].
When asked by the Applicant’s representative as to what the most effective type of imaging is for the injury the Applicant suffered, Dr Bowles said:[60]
(a)He generally wouldn’t image this type of injury.
(b)An MRI scan is the most sensitive and the “gold standard” for musculoskeletal injuries, particularly for soft tissue injuries.
(c)CT scans are more effective for bony injuries because of the calcium in the bones.
(d)An MRI is not your first test for someone who presents with a complaint. It’s a clinical judgement. Certainly if someone has experienced a major traumatic event, then of course you would, but there are indications for performing radiology.
[60]Transcript, p 37 [30]-[45]; p 41 [35].
When asked by the Applicant’s representative the expected timeframe for an injury such as that suffered by the Applicant, Dr Bowles said:[61]
Well, if we’re looking at tendon or tendinopathy, that will often stay there for months if not longer. And often the tendinopathic change will continue without symptoms. A minor muscle tear with a little bit of bleeding will resolve in a few weeks if it was identifiable on an initial MRI scan.
[61]Transcript, p 37 [40].
As to why Dr Bowles had no medical diagnosis for the Applicant:[62]
[E]ven for like back pain 85 per cent of the time you can’t make a specific diagnosis. For a complaint that came along you’d treat it on spec in terms of - you know, some analgise, movement, and give it some time, without going to radiology or other investigations.
[62]See para [32] above; Transcript, p 38 [5].
Dr Bowles responded to the Applicant’s proposition that two GPs and a physiotherapist had described the Applicant’s injury as “golfer’s/tennis elbow” and “an RSI injury”[63] as follows:[64]
DR BOWLES: …Tennis Elbow is your lateral epicondyle and Golfer’s is your medial, so they’re two separate entities. And I did note that initially there was complaint around the extensor, which is … the extensor is the Tennis Elbow, where the medial is the Golfer’s Elbow. So, I did note that all along and I’ve made reference to those that there was complain[t]s in different regions, particularly in the June/July 2019 presentations.
MS SLACK:…What I’ve just got from that conversation there is basically you’re agreeing with the previous two doctors and physios, that there is an injury there of either Golfer’s or Tennis Elbow, an RSI type injury?
DR BOWLES: No, they’re quite specific, with point tenderness over that area and then provocations testing, and it’s suggested if there had been those conditions, we’re quite likely to have seen MRI changes albeit several months later.
[63]As to the source of the Applicant’s proposition, the Tribunal’s search of the evidence has located references to ‘golfer’s elbow’ in 1) the First Aid register of injuries dated 17/09/19, which indicates ‘golfer’s elbow’ (R9), 2) the Applicant’s impact statement (A2) and 3) a physiotherapy assessment dated 25/09/19 (referred to in Dr Bowles’ report, although this physiotherapy assessment was not presented to the Tribunal). The Tribunal also notes, however, that Dr Bowles’ report dated 14 May 2020 (R12) clearly states there is no evidence of a definable medical condition such as tennis/golfer’s elbow.
[64]Transcript, p 38 [10]–[40].
CONSIDERATION
The Tribunal’s task in this matter is to determine whether the Applicant suffered an ‘injury (other than a disease)’ for the purposes of s 5A(1) of the SRC Act. This first begs the question of the appropriate diagnosis of the Applicant’s claimed condition.
Applicant’s submissions
The Applicant is of the view that on 27 June 2019 he suffered ‘tennis elbow/golfer’s elbow’ or ‘CET tendinopathy’, as determined by Dr Tan, Dr Singh, and the treating physiotherapist.[65]
[65]Transcript, p 17 [30]–[35]; A1, p 4.
The Applicant’s representative submitted that the Applicant formed this view on the following basis:[66]
Well, you’ve got two GPs and a physiotherapist who were treating him; they were putting him on drugs. They gave him pain management; they were doing dry‑needling; some of them were doing therapy sessions. They all believed that in their opinion there was an injury there. They could see that he had no full range of movement, he was in extreme pain - these are all indicators that they have put forward as why they believe there’s an injury.
[66]Transcript, p 26 [30].
While the Applicant concedes that the imaging conducted of the Applicant’s left elbow showed no abnormalities, he submitted that if the radiological studies had taken place sooner, “it would have shown something,”[67] although this proposition too remained a theory.[68]
[67]Transcript, p 18 [30]. See also Transcript, p 22 [20].
[68]Transcript, p 22 [30]–[40].
Respondent’s submissions
The Respondent’s position is essentially that is that there is a difference between:[69]
(a)An injury in medical language and what may be considered an injury for the purposes of treating somebody; and
(b)An injury for the purposes of the SRC Act, noting what is required to establish the existence of an injury under the Act, as described by the High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 (May), and that:
(i)this is simply not met in the present circumstances; and thus
(ii)the Tribunal cannot be satisfied that there is an injury for the purposes of the SRC Act.
(Emphases added).
[69]Transcript, p 12 [15]–[20].
The Respondent put forward the following submissions in support of its position:
(a)Neither Dr Tan, Dr Singh nor the Applicant’s physiotherapist have provided comprehensive reports detailing and justifying their diagnoses or their opinions with respect to causation.[70]
(b)Dr Bowles confirmed that ‘there is no identifiable evidence of a definable medical condition such that as tennis or golfer’s elbow.’[71]
(c)The Tribunal ought to prefer Dr Bowles’ opinion in this regard given he is more qualified and relevantly experienced to comment on the issue.[72]
(d)Dr Bowles’ opinion supports a conclusion that the Applicant suffered from ‘a left elbow strain in the court of employer as a result of the first injury’ and that the second incident resulted in a ‘non-specific complaint in the left elbow.’ Dr Bowles considered that the Applicant suffered an injury on 27 June 2019 because there was sudden pain in the course of a forceful activity. Dr Bowles opined that the injury was resolved.[73]
(e)Dr Bowles considered the Applicant to be currently fit for his normal work duties without restriction.[74]
(f)Dr Bowles was unable to provide a medical diagnosis for the Applicant’s ‘current complaints’ and stated ‘there is no recognisable injury or condition identified.’[75]
[70]Transcript p 48; Respondent’s outline of closing submissions [16]–[17].
[71]Respondent’s outline of closing submissions [17], referring to R12.
[72]Respondent’s outline of closing submissions [18].
[73]Respondent’s outline of closing submissions [19].
[74]Respondent’s outline of closing submissions [20].
[75]Respondent’s outline of closing submissions [21].
The Respondent drew the Tribunal’s attention to May, Comcare v Stefaniak [2020] FCA 560, Re Williamson and Comcare [2019] AATA 4774 (Williamson) and Pearson and Prosegur Australia Pty Ltd [2021] AATA 312 (Pearson) as authorities for the proposition that symptoms which are genuinely experienced, but without an accompanying and diagnosable physiological change, are insufficient to amount to an ‘injury’ for the purpose of ss 5A and 5B of the SRC Act.[76] The Respondent emphasised the following passages from May to further elucidate the point:[77]
The Full Court concluded that the injury demanded by the statutory definition of “injury” was “whether the person has experienced a physiological change or disturbance of the normal physiological state (physical or mental) that can be said to be an alteration from the functioning of a healthy body or mind.” To the extent that conclusion suggested that subjectively experienced symptoms, without any accompanying physiological or psychiatric change, are sufficient to provide a positive answer to the first of third questions set out above, that conclusion should be rejected.[78]
…
Put another way, the proper construction of the Act recognises that an employee may genuinely complain of being unwell, but, in the context of the “injury (other than a disease)” limb of the definition of “injury,” unless that employee can satisfy the tribunal of the fact that he or she has suffered an “injury” (in the primary sense of the word), s 14 of the Act will not be engaged.
The “nature and incidents of the physiological [or psychiatric] change” will determine whether there was an “injury (other than a disease).” The evidence to be adduced, of course, will vary from case to case and, where appropriate, may take into account common-sense inferences drawn from a sequence of events. To take an extreme example, the dismemberment of a limb – involves a physiological change as a matter of common sense. But there must be more than an assertion by an employee that he or she feels unwell.[79]
…
Mr May asserted that he felt unwell. The Tribunal accepted that he felt unwell. But the “nature and incidents of the psychological [or psychiatric] change” suffered by Mr May were not established. There was no “injury” in the primary sense of that word.[80]
(Emphases added).
[76]R2 [24]. See also Respondent’s outline of closing submissions [22], [26].
[77]Respondent’s outline of closing submissions [22]–[24].
[78]May [57].
[79]May [61]–[62].
[80]May [67].
The Respondent continued its address of May in its written submissions:[81]
Gageler J in his judgment referred to the fact that the word injury, as used in the SRC Act “is not used in a global sense to describe the general condition of the employee following an incident” (at [74]) and that “An injury…is something definite or distinct “physiological change” or physiological disturbance” for the worse which, is not “sudden,” is at least “identifiable” (at [75]). He said, “at least in the case of a physical injury, to suffer an injury is more than just to experience the onset of dysfunction” (at [77]). It is necessary to analyse whether there has been a definite or distinct physiological change (at [78]). At [82] Gageler J concluded:
The Tribunal, in my opinion, displayed no legal error in answering that question when (on the one hand) it accepted that Mr May experienced debilitating dizziness, which could “loosely” be described as “vertigo,” and yet (on the other hand) it found itself unable to be satisfied that the dizziness was enough to show that Mr May had suffered an injury “in the absence of any physiological evidence, pathology or a known diagnosis to explain the symptoms.”
[81]Respondent’s outline of closing submissions [25].
The Respondent further submitted that:[82]
[82]Respondent’s outline of closing submissions [27]–[33]; R2 [25]–[26].
(a)The sole reason proffered by Dr Bowles in support of his diagnosis of an injury suffered in June 2019 is that the Applicant experienced sudden pain in the course of a forceful activity. While suddenness is relevant indicia, it is the physiological change – the nature and incidents of that change – that remains central.
(b)There is simply no evidence of physiological change.
(i)First the x-ray,[83] ultrasounds[84] and MRI[85] reports did not reveal any abnormalities, whatsoever.
(ii)Second, Dr Bowles himself acknowledged that the Applicant ‘has had a suitable investigation which has not shown any medical injury as such,’ no significant injury was sustained at the time’ and ‘there is no musculoskeletal symptom that is a diagnosed injury or condition’.[86]
(c)The Applicant’s GP, Dr Tan, agreed that there was no structural damage to the left elbow.[87]
(d)With respect to the incident on 16 September 2019, Dr Bowles considered that a specific diagnosis was not possible and that any potential injury has resolved.[88]
(e)The Tribunal must be satisfied on the balance of probabilities[89] and it should not be left in the area of possibility or conjecture.[90] Dr Bowles’ opinion raises no more than the possibility that an injury was suffered; moreover, his opinion does not support there being a physiological change, which is a necessary pre-condition for the presence of an injury.[91]
(f)There is no medical evidence to suggest that the claimed injuries are capable of being classified as diseases or aggravations thereof (and, even if they were, there remains no evidence that the May test is satisfied).
(g)Accordingly, the correct or preferable decision in the circumstances is to conclude that there is insufficient evidence for the Tribunal to be satisfied on the balance of probabilities that the Applicant suffered from an ‘injury’ as that term is defined in s 5A of the SRC Act, and therefore, liability does not arise under s 14 of the SRC Act.
[83]R1, T13, p 29.
[84]R1, T13, p 29; R13.
[85]R1, T22, p 48.
[86]R11, p 9.
[87]R1, T31, p 81; report of Dr Tan dated 12 November 2019 at [3]: “his imaging studies were all negative.”
[88]R11, p 11.
[89]Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 138; Re Kirby and Collector of Customs (1989) 20 ALD 369.
[90]Sheppard and Comcare [2014] AATA 157 [95]; D’Lima and Australian Postal Corporation [2016] AATA 495 [115].
[91]R11, p 9.
Whether the Applicant suffered an ‘injury’ for the purposes of s 5A(1) and/or s 5B of the SRC Act
As to the Applicant’s diagnosis, the Tribunal has before it the following medical reports, all of which gave unremarkable or normal results:
(a)X-ray left elbow dated 19 September 2019;[92]
(b)Ultrasound left elbow dated 19 September 2019;[93]
(c)MRI left elbow dated 8 October 2019;[94] and
(d)Ultrasound left elbow report dated 9 January 2020.[95]
[92]R1, T13, p 29.
[93]R1, T13, p 29.
[94]R1, T22, p 48.
[95]R13.
At hearing, the Respondent submitted that the Applicant’s case is essentially mirrored onto Mr May’s at para 67 of the May decision.[96] Given that the Applicant’s medical evidence falls short of demonstrating the necessary physiological change, the Tribunal agrees that Mr May’s case is, in this sense, replicated here. That is, the Tribunal accepts the Applicant’s assertions that at various times he felt unwell, that he felt pain and that he felt discomfort. But, without evidence of a physiological change, that is the end of the matter in the context of the issue for review.
[96]Transcript, p 50 [20]-[25]. See para [63] above.
For completeness, the Tribunal notes the somewhat similar situations in Williamson and Pearson, where the Tribunal in both matters ultimately decided that there was no injury and liability didn’t arise. In Williamson, Deputy President Pascoe, having had regard to the evidence, formed the view that subjectively experienced symptoms, which may be experienced at work without an accompanying physiological diagnosis, is simply insufficient to meet the requirements of the SRC Act.[97] Rather, as is the case in the present matter, Deputy President Pascoe was of the view that this scenario merely confirmed the ongoing symptoms of pain over a long period of time.[98] In Pearson, Deputy President Boyle said that a mere possibility is not enough for the Tribunal to make findings of fact.[99]
[97]Williamson [45].
[98]Williamson [47].
[99]Williamson [149].
In the present matter, Dr Bowles’ opinion was that, taken at its highest, the evidence demonstrates:
(a)only the possibility that an injury was suffered on 27 June 2019; and
(b)that what occurred on 16 September 2019 was a further experience of symptoms, rather than a separate injury.
The Tribunal notes at this point that it prefers the opinion of Dr Bowles over that of the Applicant’s treating GPs and physiotherapist given:
(a)his specific qualifications and experience in these matters; and
(b)that Dr Bowles had the benefit of examining all of the radiological evidence and evidence provided by the GPs and physiotherapist and made his assessment based on this timeline of contemporaneous reporting by the Applicant.
In summary, the Tribunal finds there is no basis for it to find that the Applicant suffered an injury as defined in s 5A(1) of the SRC Act.
CONCLUSION
The issue for the Tribunal is this matter is whether the Applicant suffered an ‘injury’ for the purposes of s 5A(1) and/or s 5B of the SRC Act. The Tribunal has found that there is no evidence to demonstrate that the Applicant’s claimed experiences of symptoms warrant any particular diagnosis of any identifiable or recognisable condition and/or further, that these complaints meet the definition of “injury” under the SRC Act.
Therefore, the Tribunal has found that the Respondent is not liable under s 14 of the SRC Act to pay compensation to the Applicant for his claimed left elbow condition.
DECISION
For the reasons outlined above, the Reviewable Decision dated 12 December 2019 is affirmed.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
............[Sgd]............................................................
Associate
Dated: 22 September 2021
Date of hearing: 09 June 2021 Representative for the Applicant: Mr M Hudson Counsel for the Respondent: Ms K Slack, Counsel Representative for the Respondent: Moray & Agnew Lawyers
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