Jackson and Telstra Corporation Limited
[2008] AATA 771
•29 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 771
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600874;
GENERAL ADMINISTRATIVE DIVISION ) Q 200600898;
2007/0932;
2007/3507; 2008/0929
Re BRIAN JACKSON Applicant
And
TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal Deputy President P E Hack SC
Associate Professor J B Morley RFD, MemberDate29 August 2008
PlaceBrisbane
Decision In each of applications Q 200600874, Q 200600898, 2007/0932, 2007/3507 and 2008/0929 the Tribunal affirms the decisions under review.
............Signed...................
Deputy President
CATCHWORDS
COMPENSATION – workplace accident – claim for incapacity payments – claim for permanent impairment – injury to eye leading to an early posterior sub capsular cataract – injury to shoulder – psychiatric condition – no complaint of shoulder injury at the time of the accident – no causal connection between the shoulder injury and the workplace accident – no causal connection between the mental condition and the workplace accident – applicant not incapacitated as a consequence of injuries related to his employment – decisions under review affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 14, 16(1), 19, 24, 27
Comcare v Sahu-Khan (2007) 156 FCR 536
REASONS FOR DECISION
29 August 2008 Deputy President P E Hack SC
Associate Professor J B Morley RFD, MemberIntroduction
1.On 14 August 2001 the applicant, Mr Brian Jackson, was injured in the course of his employment with the respondent, Telstra Corporation Limited.
2.There are five separate proceedings before the Tribunal in which Mr Jackson seeks a review of decisions made on behalf of Telstra[1] in relation to his entitlements to compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act).
[1] The decisions were made by Allianz Australia Insurance Limited, the entity that undertakes Telstra’s claims management.
The decisions
3.It is convenient to start by recording the decisions that are in issue before us.
4.In application Q 200600874 Mr Jackson seeks review of a decision made on 20 October 2006 (and affirmed on reconsideration on 20 November 2006) that determined:
“1. That for the period from 9 August 2006 to the present date and as at the present date you have no entitlement to incapacity payments pursuant to section 19(2) of the SRC Act.
2. That you are not entitled to the reimbursement for the costs of the cortisone injection which was carried out by Dr Glenn Davies on 28 July 2006.”
5.Mr Jackson’s application seeking review of this decision was lodged in the Tribunal on 29 November 2006.
6.Application Q 200600898 concerns three separate decisions each affirmed on reconsideration on 19 October 2006. The first decision, made on 7 July 2006, was that Telstra was not liable to pay compensation in respect of treatment consisting of a multidisciplinary pain management program at the Sunnybank Private Hospital.
7.Next, on 25 August 2006, it was determined that Telstra was not liable to pay compensation by way of incapacity payments under s 19(2) of the SRC Act in respect of the periods 4 September 2001 to 27 February 2003 and 5 April 2003 to 21 January 2006.
8.Then, on 27 September 2006, a determination was made that Telstra was not liable to pay the costs of right shoulder surgery.
9.As we have said, each of those determinations was affirmed on reconsideration on 19 October 2006. But, in addition, in the course of that reconsideration Telstra revoked an earlier determination in relation to liability for Mr Jackson’s right shoulder condition and determined that Mr Jackson did not suffer from a right shoulder condition that had been caused or materially contributed to by his former employment.
10.The application seeking review of these decisions was lodged on 29 November 2006.
11.Application 2007/0932 concerns a determination made on 20 December 2006, affirmed on reconsideration on 19 March 2007, that:
“you do not suffer from a ‘post traumatic stress disorder’ and ‘depression’ condition which has been caused or materially contributed to by the motor vehicle accident which occurred on 14 August 2001.”
That application was lodged on 22 March 2007.
12.Application 2007/3507 was lodged on 30 July 2007. It seeks review of a determination made on 18 January 2007 and affirmed on reconsideration on 19 July 2007 that Mr Jackson was not entitled to compensation for permanent impairment under ss 24 and 27 of the SRC Act in respect of his “contusion of multiple sites” and “retinal detachment R eye” condition.
13.Finally, application 2008/0929, lodged on 5 March 2008, seeks a review of a determination made on 27 February 2008, affirmed on reconsideration on 3 March 2008, that Mr Jackson was not entitled to compensation for permanent impairment for a “psychiatric injury” condition under ss 24 and 27 of the SRC Act.
The statutory scheme
14.The SRC Act established a scheme for the payment of compensation to employees of the Commonwealth or entities having a sufficient constitutional connection to the Commonwealth. The key provision is s 14 of the SRC Act. The effect of that section is that Comcare or, as in the present case, a licensee under Part VIII of the SRC Act, is liable to pay compensation in accordance with the SRC Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. Succeeding provisions within Part II make provision for the circumstances under which compensation is payable and the amount of that compensation or the manner of calculating it.
15.In the present case it is necessary to have regard to three particular types of liability.
16.First, s 16(1) of the SRC Act deals with the cost of medical treatment in these terms:
“Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.”
17.It is next necessary to notice s 19 of the SRC Act which applies to an employee who is incapacitated for work as a result of an injury. There are some exceptions to the general provision in s 19 but none are relevant here.
18.In this case it is not necessary to consider the detailed provisions within s 19 of the SRC Act for calculating the amount of compensation for incapacity, we need only decide the question of overall liability and, if liability is found, the matter can be remitted to Telstra to determine the amount of compensation.
19.By virtue of s 24(1) of the SRC Act there is a liability to pay compensation in respect of an injury where “an injury to an employee results in permanent impairment”. “Permanent” is defined in s 4 of the SRC Act as meaning “likely to continue indefinitely”. For the purposes of determining whether an impairment is permanent Comcare (and the Tribunal in its stead) is required to have regard to the matters in s 24(2) of the SRC Act, being:
“(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all rehabilitative treatment for the impairment; and
(d)any other relevant matters.”
20.The amount of compensation payable for injuries causing permanent impairment is assessed as a percentage and it is determined under the provisions of the approved Guide[2]. There are two editions of the Guide; that relevant here is the Guide to the Assessment of the Degree of Permanent Impairment, 2nd Edition (the Guide), which was issued on 1 September 2005 and is required to be used for claims made after 28 February 2006 under ss 24, 25 or 27 of the SRC Act.
[2] SRC Act, s 24(5).
21.By virtue of s 24(7) of the SRC Act, no amount of compensation for injuries resulting in permanent impairment is payable if the degree of permanent impairment is less than 10%.
The uncontroversial background
22.It is not open to doubt that Mr Jackson was injured in a work incident on 14 August 2001. There is controversy, probably unnecessary controversy, about the severity of the impact and the resulting injury however what follows is not in issue except where we indicate it to be.
23.Mr Jackson gained employment with what was then the Postmaster-General’s Department in 1966 after leaving school. He started as an apprentice sheet metal worker. He completed that apprenticeship and pursued that trade for a number of years. In the late 1980’s when threatened by redundancy, he was able to obtain alternative work in the drafting/surveying section of Telstra as a chainman, a role he performed for about 10 years. Then in about 1996 he was asked to work for Telstra as a truck driver[3]. He continued in that role until he was retired involuntarily in 2002 following the accident the subject of these proceedings.
[3] Within Telstra his job description was that of a “Skilled Operative”.
24.On the morning of 14 August 2001 Mr Jackson was the driver of a Telstra truck with a cable jinker[4] attached. Mr John Munro, another Telstra employee, travelled with him. When they arrived at the Toowong line depot the vehicle was stopped and both Mr Jackson and Mr Munro went to the rear of the vehicle to disconnect the jinker. As that was done the truck, which was parked on a slope, proceeded to roll forward. Mr Jackson was concerned the vehicle might travel onto an adjoining public road and endanger pedestrians or other road users. He chased the truck, opened the driver’s side door and was between the door and the door jamb when the vehicle crashed against a chemical storage shed within the Telstra depot and came to a stop.
[4] A trailer attached by towbar, chain and hydraulic line to the truck.
25.Mr Jackson says that the block wall of that shed trapped him between the truck door and the doorjamb and that he “immediately felt a great deal of physical pressure on [his] body”. He says that he was conscious at that time of blurring to his right eye and numbness all over his body and pain to both legs and his left ankle. His chest and all his other limbs were, he said, “tight”. His “whole head felt as though it had been squashed”. He said that his mouth and ears were bleeding and that some of his teeth had been chipped. He claimed that he was aware of what, in medicine, is described as a traumatic exophthalmos, that is, the traumatic expulsion of the pupil from the eye socket, and that he pushed the eye back. The evidence of Dr Briner, an ophthalmic surgeon, satisfies us that that cannot possibly have occurred, even though there is no doubt that Mr Jackson’s eye was injured in the incident.
26.If anything, the description given by Mr Munro of this event put it in even more dramatic terms. According to him the force of the impact was such that the truck door was bent out of its usual shape around Mr Jackson’s body. He also spoke of the contact between the truck and the block wall.
27.The description given by Mr Jackson in his oral evidence included the detail that the iron roof of the shed penetrated the windscreen of the truck and ended up within a very short distance of his face. It is said by Telstra that the photograph taken of the truck after the accident “does not tend to show any compromise of the windscreen”. That may be so but equally it does not “tend to show” that there is no damage. But this detail, as it seems to us, is an unnecessary distraction.
28.Following the incident Mr Jackson was taken by private vehicle to the nearby Wesley Hospital where he was seen for treatment at the Accident and Emergency Department.
Matters of credibility
29.Mr Clark, counsel for Telstra, mounted a spirited attack on the credibility of Mr Jackson, his wife Mrs Lynette Jackson and daughter Ms Shelley Jackson, and on that of Mr Munro.
30.There are two aspects of the case that the evidence of these witnesses bears upon – the severity of the collision (in the case of Mr Jackson and Mr Munro) and the subsequent after effects of Mr Jackson’s injuries (in the case of members of the Jackson family).
31.As to the first of these matters, each of Mr Jackson and Mr Munro describe impacts involving enormous forces with a cement block wall. But the photographs (which form part of Telstra’s investigation of the accident) do not show a cement block wall in the position where Mr Jackson and Mr Munro describe it. Moreover the language of both of them in describing the collision seems to us to grossly overstate the severity of the collision having regard not only to the photograph but also to the injuries documented at the Wesley Hospital and the statements provided by them at the time of the accident. The accounts of both of them seem to us to suffer from a great degree of reconstruction, especially having regard to the descriptions given in the statements made at the time.
32.Ultimately it seems to us that we need not reach any conclusion about the precise circumstances of the collision or upon the degree of force; what is important is the true extent of the injuries inflicted by the collision. But, were it to matter, we would not place any reliance upon the evidence of Mr Jackson or Mr Munro about the degree of force involved or the effect upon Mr Jackson and we would reach our own conclusions about those matters from objective evidence.
33.But the conclusion that we reach that Mr Jackson is overstating the circumstances of the accident does have the effect that we are concerned about his reliability on other aspects of evidence that are of importance, particularly his evidence of the effects on him of the undoubted injuries.
34.Allied to that concern is the fact, not disputed before us, that Mr Jackson suffers from a depressive disorder which has arisen following the original incident in August 2001. The practical consequence of that is that Mr Jackson’s presentation in the witness box was, to say the least, unusual, such that it is more difficult than normal to reach a view of Mr Jackson’s reliability on the basis of our perception of him in that setting. In that context we observe that it was plain to us that Mr Jackson harbours a great deal of animosity towards Telstra in part, no doubt, attributable to the circumstances of his departure from its employment. But that animosity manifested itself with a combative and argumentative style of answering many of the questions put to him, and properly so, in cross-examination.
35.Given our reservations about Mr Jackson’s reliability we think it best to consider the question of his injuries and their consequences by reference to the great number of records that are before us that detail the contemporaneous symptoms and clinical findings. As it seems to us, those signs and symptoms are likely to be a more reliable and accurate guide than the ex post facto accounts of Mr Jackson. We need not determine whether Mr Jackson is deliberately untruthful, but we are satisfied that there is a considerable, albeit understandable, element of reconstruction in Mr Jackson’s evidence and that he has, again understandably, sought to attribute all that has befallen him to the work incident of August 2001. We should add that there is evidence from Dr Jill Reddan, interpreting the results of psychological tests, that suggests that Mr Jackson had presented himself, when undertaking those tests, in an extremely negative and probably exaggerated fashion.
36.So far as the evidence of Mrs Lynette Jackson and Ms Shelley Jackson is concerned it is enough to say that we consider it preferable to rely upon contemporaneous records rather than on the accounts of symptoms given by them. In that regard we reject the evidence of Mrs Jackson that her husband complained of shoulder pain to Dr van Eps in the initial consultation post accident on 15 August 2001. Dr van Eps’ clinical notes suggest that he is a careful and detailed note taker. It is inconceivable to us, and Dr van Eps regarded it as “very unlikely”, that he would not have noted, and examined the site of, any shoulder complaint. It seems to us to be much more likely, as Dr van Eps himself said, that other matters were of concern to Mr Jackson at that time. Similarly, we note that the evidence of Ms Jackson that there was “a massive change” in her father’s mental condition within six months of the incident is at odds with the other evidence before us.
Medical history
37.In this part of our reasons we propose to set out material extracts from the medical records that demonstrate the complaints made and the signs and symptoms recorded, to more easily consider the critical questions of causation that need be addressed. We will limit this review to treating practitioners rather than practitioners who have examined Mr Jackson for the purposes of expressing opinions in connection with these proceedings.
38.In 1969 Mr Jackson suffered fractures of his left femur and right tibia and fibula when, as a pedestrian, he was struck by a car. His four months' hospital treatment and 16 months' rehabilitation interrupted his apprenticeship but, as we have said, he completed that and continued in employment with Telstra (or its predecessors) thereafter.
39.He has attended the practice of Dr Frank van Eps of Capalaba since October 1978. Dr van Eps' clinical notes record his past history of four right knee injuries between 1982 and 1996; and three episodes of “depression” or “stress”, in March 1992, February 1993 and November 1998. The notes of a consultation on 18 March 1992 read:
“stressed at work. Being laid off at end of year and having altercation with other employees (is foreman in Telecom shops)”.
Then, on 9 February 1993, Dr van Eps recorded that Mr Jackson was “feeling depressed and stressed”. Finally, on 18 November 1998, Dr van Eps noted that Mr Jackson was complaining of being “stressed with redundancy plus father’s condition”. Subsequent notes indicate that Mr Jackson’s father passed away not long after that consultation. We do note, however, that on none of these occasions was Mr Jackson prescribed medication or referred for psychiatric treatment.
40.After the accident, and around 10.30 a.m., Mr Jackson was examined at the Emergency Medical Department of the Wesley Hospital by Dr Harling, who found no clinical evidence of fractures and recorded[5] Mr Jackson’s injuries as:
"1. bruising of left ear cartilage
2. back - non-tender spine
3. graze - right lateral knee; full range of movement
4. soft tissue injury - left knee
5. soft tissue injury - left calf
6. swelling - medial left foot".
[5] We have expanded Dr Harling’s abbreviations.
X-rays of the left foot and ankle were normal. He was discharged home with crutches.
41.On the following day Mr Jackson consulted Dr van Eps, who recorded that he had back and neck pain. On examination he found a graze on Mr Jackson's right upper lateral thigh, and bruising in the lower back (L4-S1) centrally, right triceps muscle region, and left “earlobe”, as well as a graze on the left inner foot, and "strained [left] medial and lateral ankle ligaments [and] [right] lateral knee (slight bruising)". He diagnosed "thoracic spine strain", and prescribed Voltaren and Codalgin.
42.Mr Jackson returned to Dr van Eps five days later on 20 August 2001 reporting "lightning flashes" in his vision, with altered right vision like “vaseline”. Dr van Eps’ notes record that Mr Jackson told him that his head had been "squashed ear to ear...” Dr van Eps examined the right eye with fluorescein drops and found no corneal injury. The right eye visual acuity, with spectacles, was 6/9 compared to the left eye's vision at 6/5. On the next day his right lateral visual field was "distorted". Accordingly, Dr van Eps arranged for Mr Jackson to see Dr Briner urgently.
43.In his letter to Dr van Eps of 23 August 2001 Dr Briner advised that Mr Jackson had suffered a traumatic tear of his right retina, with an intravitreal haemorrhage and vitreous detachment. He repaired the retinal tear with laser therapy. A CT head scan excluded an intracranial subdural haemorrhage.
44.On 24 August 2001 Mr Jackson again saw Dr van Eps who recorded that the various bruises were resolving but that the left foot was still sore. A week later Mr Jackson's right vision was still "slightly misty". Dr van Eps advised Mr Jackson to resume clerical work, with "no excessive walking, minimal lifting or bending", 15 to 20 hours per week, commencing on 4 September 2001. By mid-October Mr Jackson was reporting constant right temporal/frontotemporal and occipital headaches, relieved by Naprosyn; and his right vision was still "hazy". On 25 October 2001 he was reviewed by Dr Briner who notified Dr van Eps that Mr Jackson was developing an early right traumatic cataract.
45.Because Dr Briner had also advised Mr Jackson that his headaches were not due to his visual complaints, Dr van Eps arranged his referral to a neurologist, Dr Don Todman, on 1 November 2001. Dr Todman diagnosed the headaches as being "related to a neck strain with muscle tension qualities", for which he recommended physiotherapy. Dr van Eps’ notes of 4 January 2002 recorded a "good" response to this over the next six weeks. At the next review by Dr van Eps on 5 March 2002 Mr Jackson reported that his headaches had returned after he had ceased physiotherapy.
46.Although it is not a medical issue it is relevant to note, at this juncture, matters involving Mr Jackson’s redundancy because of the role that we conclude that that event played in the onset of Mr Jackson’s depressive disorder. “A few weeks” prior to 4 October 2001[6] the management of NDC, the division of Telstra for whom Mr Jackson worked, undertook what is described in the correspondence as a “roadshow” to explain to employees the need to reduce staff levels considerably and the processes of redundancy, voluntary or forced. By letter dated 2 January 2002, Mr Jackson was informed that his job had “been identified as excess to NDC’s work requirements” and offered voluntary redundancy because an alternative job could not be found for him. Mr Jackson declined this offer on 8 January 2002[7], saying that he was “still on R.T.W. program, compo”. Thereafter followed an exchange of correspondence between Mr Jackson and NDC including the presentation of his case to the Management Initiated Retrenchment Board, a mechanism for internal appeal, which affirmed his involuntary redundancy. Mr Jackson’s employment with NDC finished at the close of business on 10 May 2002.
[6] Exhibit 6, page 151 is a letter to all staff of this date.
[7]Although the document bears the date 8 January 2001 it was plainly sent in 2002.
47.During the latter stages of this process Mr Jackson returned to see Dr van Eps on 23 April 2002, seven weeks after his previous review. He requested a referral to an orthopaedic surgeon. Although Dr van Eps apparently referred Mr Jackson to Dr Greg Nutting no consultation with him took place at that time. The note of the consultation with Dr van Eps that day referred to “To lawyer re work related injuries”. We infer that by 23 April 2002 Mr Jackson had consulted, or was about to consult, lawyers regarding the possibility of a claim for compensation.
48.On 22 August 2002 Dr van Eps learned[8] that Dr Briner intended to operate "in due course" on Mr Jackson's developing right traumatic cataract and that the pressure in that eye was rising compared to the left, also secondary to his injury, which would require monitoring.
[8]It is not clear whether that was from Mr Jackson or from Dr Briner but nothing turns on the source of the information.
49.On that same day, four months after his previous consultation, Mr Jackson returned to Dr van Eps who recorded that Mr. Jackson "still" had right shoulder problems, as well as complaints in his right ankle and foot, both knees, and his back, and still with headaches. Despite the reference to “still”, this is the first reference to the right shoulder in Dr van Eps’ notes. This notation assumed significance in the arguments of the parties to which we shall return.
50.Over the next six months Dr van Eps reviewed Mr Jackson on eight occasions. On six of these Dr van Eps recorded continuing multiple complaints, also affecting the neck, lower chest, and both hips. He was treated with physiotherapy. On 2 December 2002 he noted that Mr Jackson was contacting his solicitor about his pending review by Dr Nutting on 4 February 2003.
51.On 17 January 2003, and in anticipation of seeing Dr Nutting, Mr Jackson had x-rays of his cervical spine, left knee, and lumbosacral spine. He reported to Dr Nutting that his "most significant" problems were his neck and shoulder. Dr Nutting was of the opinion that Mr Jackson had "quite significant degenerative changes" in his cervical spine x-rays, with "very poor shoulder mechanics". Although Mr Jackson tended "to hitch the right shoulder rather than abduct it" Dr Nutting found that the shoulder had a full range of passive movements. Dr Nutting recommended that Mr Jackson continue with physiotherapy. On 20 February 2003 Dr van Eps again made a note of Mr Jackson's right shoulder complaints.
52.Dr Briner performed Mr Jackson's right cataract extraction and lens replacement on 28 February 2003. The procedure was successful and Dr Briner reported that Mr Jackson “progressed very smoothly” thereafter.
53.Over the next three months Dr van Eps made further records, on four more reviews, of Mr Jackson’s complaints of pain in his head and neck, and complaints regarding his left knee, ankle and right shoulder, which after worsening when physiotherapy ceased, partly improved on resuming it.
54.On 19 May 2003, because, despite Mr Jackson’s denial, Dr van Eps suspected that he was becoming depressed, Dr van Eps gave Mr Jackson a trial of the antidepressant medication Cipramil. When he next returned for review on 2 September 2003 Mr Jackson told him that he had ceased this. He was still having physiotherapy.
55.On 29 May 2003 Mr Jackson was assessed by Dr Peter Landsberg, a consultant rheumatologist. Dr Landsberg was unable to attribute all of Mr Jackson’s pains to the effects of the original incident but found "mechanical problems" in his right shoulder, and "widespread degenerative symptoms" in his neck, lumbar spine, hips, and perhaps his knees.
56.In the nine months from September 2003 Dr van Eps' notes record Mr Jackson's sundry incidental complaints at five further reviews. On 18 June 2004, because of Mr Jackson’s continuing complaints, Dr van Eps requested ultrasound examinations of the left knee and right shoulder. These showed a small loose body in the medial meniscus of the knee with fluid in the suprapatellar pouch and deep anserine bursa of the knee; and partial thickness tears in the subscapularis and supraspinatus tendons of the shoulder. Mr Jackson was reviewed by Dr Landsberg on 15 July 2004, who thought that he was making "a reasonable recovery", and could continue either with conservative treatment, or obtain a surgical opinion regarding minor procedures to his left knee and right shoulder.
57.Dr van Eps sought the opinion of Dr Stephen Fine, an orthopaedic surgeon, in relation to Mr Jackson’s knee complaints. In a report dated 22 October 2004, Dr Fine noted that Mr Jackson's right knee was "much improved", but he still had significant left knee pain. He requested an MRI scan which was undertaken in February 2005. It revealed a medial meniscus tear for which Dr Fine recommended arthroscopy. A treatment decision on this was deferred.
58.Mr Jackson continued with physiotherapy for his shoulder for some time. On 12 January 2005 he requested referral to Dr Glenn Davies, an orthopaedic surgeon, who first saw him on 3 February 2005. Dr Davies requested an MRI scan which was undertaken on 9 February 2005. It showed a high grade, partial to full fitness anterior supraspinatus tendon tear, with a small infraspinatus tear, with tendinosis of both tendons. In March 2005 Mr Jackson had his shoulder irrigated by a radiologist, with a cortisone injection, but had an apparent allergic reaction to this. On 27 October 2005 Dr Davies performed Mr Jackson's right shoulder arthroscopy, with subacromial decompression and mini open cuff repair. Telstra’s insurer met the cost of that surgery.
59.On 14 December 2005 Dr Davies reported a slow improvement in Mr Jackson's right shoulder. He added that his left knee problems persisted, and sought approval to perform an arthroscopy and partial meniscectomy. There is no record of this being performed.
60.Before this, on 7 November 2005, Dr van Eps had written to Telstra’s insurer requesting approval for counseling for Mr Jackson and his wife. This was granted for five sessions. On 7 February 2006 Mr Jackson was first seen by Dr Peter Noordink, a psychologist. He reported being in considerable pain from several sites, including from his right shoulder. As well as diagnosing chronic depression and residual post-traumatic stress disorder, Dr Noordink recommended referral to a pain management program. He affirmed these opinions and recommendation, both at the conclusion of these five sessions, and after an additional five sessions that were approved later that year, from 6 September to 8 November 2006.
61.By early 2006 Dr Briner had been satisfied with the progress of the right eye. However Mr Jackson's right shoulder problems were still troublesome. In May 2006 Dr Davies reported to Dr van Eps his suspicion that Mr Jackson might have “a bit of biceps tendonitis” for which Dr Davies was to arrange a cortisone injection. Dr Davies was of the view that Mr Jackson should “stay on light duties”.
62.The shoulder problems continued. In late August 2006 Dr Davies recommended further surgery comprising a right shoulder arthroscopy with possible revision acromioplasty and biceps tenodesis. It was the refusal of that request on 25 August 2006 that is part of the subject matter of application Q 200600898.
63.On 23 November 2006 Dr van Eps noted: "still painful knees, lower back and sore [left] wrist as has to lift himself up... still tension between wife and himself...unhappy and unsettled...referred to [Dr] Tom Hogan". Dr Hogan is a consultant psychiatrist. Since 2 August 2007, he has been treating Mr Jackson for the DSM IV diagnoses of major depression with generalised anxiety disorder, having seen him on seven occasions. He has been using antidepressant and anti-anxiety medications, and has been providing him with supportive counseling.
Conclusion on diagnosis
64.We propose to consider first the evidence that touches upon the proper diagnosis of Mr Jackson’s condition. We will then consider, where necessary, whether the requisite relationship exists between the injury and Mr Jackson’s employment with Telstra before considering each of the decisions in issue in the context of the findings that we have made.
65.There are three discrete conditions in issue – the right eye condition, the right shoulder condition and what we will call Mr Jackson’s mental state.
The right eye condition
66.Despite our rejection of Mr Jackson’s claim to have suffered a traumatic exophthalmos there is no doubt that his right eye was injured in the accident of 14 August 2001. Indeed, Telstra did not contend to the contrary. That incident caused a supero-temporal retinal tear which was localised by laser treatment undertaken by Dr Briner on 23 August 2001. Subsequently Mr Jackson developed an early posterior sub capsular cataract, traumatic in origin. A successful small incision sutureless right cataract surgery was undertaken on 28 February 2003. Both the retinal tear and the cataract formation are attributable to the incident in August 2001.
67.Dr Briner, the treating ophthalmologist, and Dr John Ambler who examined Mr Jackson at the request of Telstra, are agreed on the present diagnosis and upon the extent to which the right eye injury has resulted in permanent impairment. It is agreed that Mr Jackson’s eye injury has caused a whole person impairment of 8% calculated by reference to the Guide.
The right shoulder
68.There is no real controversy about Mr Jackson’s right shoulder condition; the controversy arises in relation to the relationship between the condition and the incident of 14 August 2001. Telstra’s case places some significance upon the absence of timely complaint of shoulder pain; hence it is logical to examine the history of complaints regarding the shoulder.
69.As we have observed, the first reference in Dr van Eps’ clinical notes to shoulder pain is in August 2002, some 12 months after the incident. The reference to there being right shoulder problems “still” suggests, and we infer, that Mr Jackson had earlier experienced pain in the right shoulder but the evidence does not allow us to determine how much earlier that occurred.
70.In February 2003 Dr Nutting recorded Mr Jackson’s complaint that the neck and shoulder were the “most significant” problem. The following month Dr Beryl Turner, an occupational physician, expressed the view that it was “possible he has sustained a right shoulder supraspinatus tear” in the incident. In May 2003 Dr Landsberg spoke of a “probable rotator cuff injury to [the] right shoulder”. Dr Landsberg said that it was “quite possible” that the injuries accelerated some osteoarthritis.
71.Dr Malcolm Wallace, an orthopaedic surgeon, saw Mr Jackson in October 2004. He diagnosed bilateral rotator cuff tendonitis associated with partial tears which were, he considered, likely to be pre-existing but which may have been exacerbated by the injury in August 2001. Dr Wallace noted that, at that time, Mr Jackson was complaining of:
“global pain around the right shoulder with restriction of motion, particularly abduction and associated paraesthesiae in his right hand.”
Despite that complaint Dr Wallace noted “a full range of motion in both shoulder [sic] with some pain in the mid arc of abduction on both sides”.
72.The case for Telstra placed some emphasis upon a comment by Dr Wallace in his report of 4 November 2004 that he “would assess no work-related impairment to his shoulders”. Cross-examination of Dr Wallace clarified, and we accept, that his comment was not intended to convey the view that there was no causal relationship between Mr Jackson’s employment and his shoulder but was intended to convey the view that the extent of the impairment was not assessable.
73.Mr Jackson then saw Dr Davies, an orthopaedic surgeon with a particular interest in shoulders, in February 2005. Dr Davies noted complaints of “problems with [the] right shoulder” and “difficulty raising his arm over his head”. Dr Davies arranged for x-rays and an MRI scan of the right shoulder.
74.The next orthopaedic surgeon to see Mr Jackson was Dr David Morgan who saw him on 19 May 2005. Dr Morgan had the benefit of seeing the results of the tests ordered by Dr Davies. The complaints made by Mr Jackson to Dr Morgan were to the same effect as earlier made.
75.As we have already noted Dr Davies undertook a surgical procedure described as a right shoulder arthroscopy, arthroscopic subacromonial decompression and mini open cuff repair on the right shoulder in October 2005. On one view of the evidence that procedure led to Mr Jackson developing a “frozen shoulder”, that is, capsulitis to the shoulder, one of the risks attendant upon such surgery. We consider that question in greater detail in paragraphs [104] to [110] below.
76.Dr Wallace and Dr Morris are agreed that the level of permanent impairment of Mr Jackson’s right shoulder, assessed by reference to the Guide, is an 18% whole person impairment.
The mental state
77.When the claim was made on behalf of Mr Jackson in November 2006 it was for conditions described as post traumatic stress disorder and depression. Whilst the claim for post traumatic stress disorder was not ultimately pressed we ought deal with it, albeit briefly.
78.That claim arises from an opinion expressed by Dr Noordink following his first session with Mr Jackson on 7 February 2006. That session lasted a little over an hour. A diagnosis of post traumatic stress disorder was rejected out of hand by each of the psychiatrists that have seen Mr Jackson and have expressed opinions on his mental state. We have the clinical notes made by Dr Noordink of the consultation on 7 February 2006. We are unable to see any reference in them to many of the diagnostic criteria required for post traumatic stress disorder. It is a complete mystery to us how a responsible professional could possibly have reached such a diagnosis after such a brief consultation and without having made any reference in clinical notes to a majority of the diagnostic criteria assuming, favourably to Dr Noordink, that it is open to psychologists to undertake a diagnosis of a psychiatric condition.
79.It is not to the point that Dr Noordink adhered to his original view after seeing Mr Jackson on later occasions; our concerns about his original diagnosis cause us to doubt his subsequent diagnosis, all the more so when it is at odds with the views of consultant psychiatrists.
80.It follows that we reject the evidence of Dr Noordink and the claim that Mr Jackson ever suffered from the condition of post traumatic stress disorder.
81.There is one matter in the evidence of Dr Noordink that does call for remark. Dr Noordink administered a Personality Assessment Inventory test, where the subject responds to a series of statements about the subject’s perceptions of himself or herself. Dr Jill Reddan, a consultant psychiatrist, was, we think rightly, critical of the assertion by Dr Noordink that the PAI was an “objective” tool. We agree with Dr Reddan that it is difficult to see how a self-reporting test can truly be described as objective. But Dr Reddan did observe that the results suggested that Mr Jackson had presented himself in an extremely negative and probably exaggerated fashion. Dr Noordink agreed with this conclusion.
82.Dr Gary Larder, a consultant psychiatrist, saw Mr Jackson in August 2006 for the purpose of providing a medico-legal report. He again saw him in August the following year. Dr Larder is of the view that Mr Jackson’s condition is best described as a “form of a chronic depressive state, best termed DYSTHYMIA”. Dr Larder regarded this condition as permanent and that it warranted an assessment of 50% whole person impairment by reference to Table 5.1 of the Guide.
83.Dr Hogan, the treating psychiatrist, is of the opinion that the diagnosis is one of major depression and generalised anxiety disorder.
84.In light of the conclusion we reach below on the question of causation we find it unnecessary to determine whether the appropriate diagnosis is that of Dr Larder or that of Dr Hogan, or, indeed, whether there is any difference of significance between their views. It is, similarly, unnecessary to decide the controversy about whether the condition amounts to a permanent impairment. Telstra contends, in reliance upon the evidence of Dr Hogan, that the condition does not satisfy the requirement of a permanent impairment. Were it necessary to reach a concluded view we would have preferred the view of Dr Larder on this aspect because, as he pointed out, a treating psychiatrist, naturally enough, will be more optimistic about prognosis than one providing a medico-legal report.
85.Telstra does not dispute that Mr Jackson suffers from a psychiatric condition and that is undoubtedly correct. The critical issue is the connection between the condition, however described, and Mr Jackson’s employment.
Are the conditions work-related?
86.There is no dispute that Mr Jackson’s right eye condition is an injury that arose out of, or in the course of, his employment with Telstra. So much is conceded by Telstra. There is, however, a dispute about the relationship between that employment and the other conditions, the right shoulder and what we have called the mental state.
The right shoulder - causation
87.The case for Telstra focuses upon two matters as supporting the proposition that there is no causal relationship between the August 2001 incident and Mr Jackson’s shoulder problems. The first was that the force of the collision was nowhere near as severe as described by Mr Jackson and Mr Munro and thus, it was said, unlikely to have produced the injuries to the shoulder complained of by him. Allied to this submission was the contention that Mr Jackson has, and had consistently, overstated his symptoms.
88.The other matter focused upon in Telstra’s case was the length of time, approximately 12 months, between the accident and the first recorded complaint of shoulder pain. That delay, it was said by reference to medical opinion, was not consistent with the damage having been done to the shoulder at the time of the accident.
89.We accept, as we have already indicated, that there is reason to doubt the accuracy of the accounts given by Mr Jackson about the severity of the collision and that it is preferable to consider the question of his injuries by reference to contemporaneous records. But ultimately it seems to us not to matter a great deal whether the truck collided with a block wall or some lesser structure. What seems to us to matter is that the vehicle, having been travelling with reasonable speed, came to a sudden stop at a time when Mr Jackson was between the door and the door jamb. Undoubtedly abnormal force would have been applied to Mr Jackson’s upper body, including his shoulder, when this occurred. And, as Dr Wallace pointed out, not a lot of force is required to cause shoulder injuries of the type in issue here. Dr Wallace spoke of his own experience of damaging his shoulder from a fall into soft snow when skiing. That sort of force, he said, “can bring on subacromial or tendonitis symptomatically”.
90.Telstra’s other point has more substance. It is the case that no complaint of shoulder paid was recorded for 12 months after the accident. Particular reliance was placed on the opinions of Dr Peter Boys, an orthopaedic surgeon, who examined Mr Jackson in February 2006. Dr Boys observed that “[i]f you have an acute injury you would expect symptoms at the time”. He noted evidence of “chronic tendonopathy of the right rotator cuff”. Dr Boys said, in his report of 8 February 2006, that:
“The described mechanism of injury would not appear to be specifically consistent with injury which might produce rotator cuff disruption of the right shoulder or intra-articular derangement of the left knee. Symptoms in these regions however have been experienced since injury reflecting degenerative changes within with [sic] rotator cuff of the right shoulder and medial compartment of the left knee.”
91.In his evidence before us Dr Boys described a relationship between the 1.5 cm tear in the supraspinatus tendon as “unlikely”. He continued:
“Well, the tear of the supraspinatus is a naturally occurring phenomenon frequently, and as I said before, as the population ages the tendon becomes worn and you see those tears with increasing frequency in an older age group. That’s one factor. The second factor is the actual described mechanism. Now, in order to tear a tendon like that, you would expect that the tendon would either be contracting strongly or under tension and it’s my understanding that this gentleman was caught from side to side between the door and his vehicle, which would mean that that musculo-tendon unit would have been completely relaxed at that time and the muscle wouldn’t be working.”
92.The mechanism of accident that Dr Boys was there postulating was one where at the time of impact the muscle was not “working”, that is, that Mr Jackson’s right arm was not under strain. Given what is known about the circumstances of the accident that seems unlikely. The possibility of the arm muscles “working”, for example where Mr Jackson was pulling his weight up into the cabin using a grip handle at the side of the windscreen, was taken up with Dr Boys in cross-examination. In that circumstance, Dr Boys said:
“You could understand why you might transmit some force to the supraspinatus tendon doing that.”
Even in that circumstance Dr Boys would have expected pain and restriction of movement from the outset.
93.There are other medical opinions on the point. Dr Wallace, whose evidence regarding the required degree of force has already been noticed, was asked about the significance of the apparent absence of complaint for some 12 months. He said:
“If there was an isolated injury, isolated, and his symptoms came on 12 months or so after the injury I would be concerned about the connection. I think he had a number of injuries, some fairly dramatic, and I think it may take time to sort one problem out after the other. He had some – he may have injured his neck, he certainly had a significant head injury. He had chest injuries, and sometimes it takes practitioners time just to sort one problem out after the other. I actually don’t know when he first started complaining of pain in the right shoulder.
Well, can I then – I just want to show you the Wesley Hospital – let me show you a copy of exhibit 9. The evidence we have is that he was taken by motor car to the Wesley Hospital and those are the notes of Dr Victor Harling, the practitioner on accident and emergency?‑‑‑My copy is not great on the first page.
Yes?‑‑‑But he does list the injuries quite nicely, knee, calf, back, bruising left ear cartilage and foot.
I mean, my impression as a lay person, and perhaps this is entirely wrong, is that that catalogue of injuries seems more minor than the types of injuries you describe, that is that they were not injuries that seemed to warrant an admission to hospital?‑‑‑And in particular, he didn’t have any identified fractures.
Yes?‑‑‑So I would accept that none of those listed injuries would require acute admission to hospital. One thing that I have never been quite clear on is the history given of his eye being popped out of its socket and he replacing that. Now, my impression is that that is quite a significant injury, but I’m not – it is outside my specialty area. The other injuries were not such that he required admission to hospital. I would agree with that.”
Dr Wallace was not asked to comment directly on the length of the apparent absence of complaint.
94.Dr Keith Adam is a specialist in occupational medicine (but not an orthopaedic surgeon) who examined Mr Jackson in March 2008. In his initial report of 3 April 2008 he said:
“I believe that tear of the right supraspinatus muscle which was subsequently demonstrated is also consistent with the nature of the accident, as described.”
In a subsequent report of 10 April 2008 he clarified that the circumstances “as described” were as described by Mr Jackson and included a complaint that Mr Jackson had been aware of a painful shoulder, amongst other things, following the accident. The timing of its onset was not made clear to Dr Adam however he commented that he would have expected “symptoms to have been present at the time, or at least within a month or two”.
95.Dr David Morgan, an orthopaedic surgeon, has a contrary view. In his report of 20 May 2005 he made reference to the appearance of a “chronological link” between the accident and the onset of symptoms. He explained what he meant by that in this way:
“He gave a categoric denial of problems relating to that shoulder prior to that time. He suffers from symptoms following the accident. In the absence of any other provocative incident it would be reasonable to assume that the link between the two exists, that is to say the subject matter and his current circumstances.”
When asked whether the absence of complaint to the Wesley Hospital or to Dr van Eps in the 12 months following the accident was of significance Dr Morgan said this:
“Not necessarily and my reason includes the fact that he had multi-system injuries, that is to say, injuries involving multiple anatomical locations and sites. And two possibilities emerge. One is that the discomfort referable to his right shoulder may have been overshadowed or, alternatively, although he may have complained of discomfort in those regions that the recorder, that is to say the medical practitioners at the times, may have failed to record the complaints.”
96.Dr Peter Steadman is another orthopaedic surgeon. He examined Mr Jackson in September 2007. He gave this evidence:
“If there had been a shoulder injury which in some way set up the process leading to a supraspinatus tear, would one necessarily expect there to be some sensation of pain in the shoulder?‑‑‑Yes, perhaps not immediately but certainly within two or three days.”
We note, in the context of Dr Steadman’s evidence, that we place no weight on his comment upon the competence of Dr Harling[9], the practitioner who examined Mr Jackson at the Wesley Hospital following the accident.
[9] See Transcript p. 363, l. 46 and cross-examination at p. 368, l. 3 and following.
97.Dr John Morris, also an orthopaedic surgeon, examined Mr Jackson in August 2006. His reports of 21 August 2006 and 1 September 2006 were informed by a history given by Mr Jackson that he had experienced pain in his shoulder from the outset. So informed, Dr Morris said this:
“In the right shoulder he has symptoms that have become worse over the years resulting in degenerative tears in the supraspinatus and infraspinatus muscles in the right shoulder which lead to surgery. The type of injury that he had is not likely to have produced these ruptures however he appeared to be asymptomatic prior to the injury so it is difficult not to attribute some of his impairment in the right shoulder to the injury.”
When asked to comment on the history of an absence of complaint at the Wesley Hospital and an absence of complaint to Dr van Eps until August 2002, Dr Morris said:
“I think it’s very unlikely the shoulder problem is related to the accident. I mean, if you tore your muscle in the accident you would know about it.”
Subsequently, he expanded on that answer saying:
“Well, people will get naturally occurring degeneration in the rotator cuff. The tears he has can just be naturally occurring and on one of his – the MRI – sorry – an ultrasound taken on 28 July 2006 capsular thickening consistent with adhesive capsulitis. Now, adhesive capsulitis is not related to trauma. That is an auto-immune type response of the body and it’s not related to trauma. So if there are tears in the muscle due to the fact that he had a capsular thickening it’s probably just a naturally occurring degeneration. He certainly had degeneration in the acromioclavicular joint as well. I mean, I could give many reasons to have pathology in the right shoulder without trauma being involved.”
98.In our view the preponderance of the evidence tells against the notion that there was a causal relationship between the August 2001 accident and the right shoulder ailment. We accept that the circumstances of the incident are such as could, as a matter of medicine, have caused the injury. That is, we infer from Mr Jackson’s description of the incident and what we can discern from the photograph about the truck that Mr Jackson was likely to have been in the process of hauling himself into the truck, and thus engaging the muscles in his right arm and shoulder, at the moment of impact and, as Dr Boys said, transmitting force to the supraspinatus tendon in so doing.
99.But whilst the mechanism of the collision was capable of producing the injury, the absence of timely complaint, and the evidence of the medical practitioners as to the significance of that absence of complaint, leaves us not satisfied that the injury to the supraspinatus tendon occurred in the accident. In that regard we prefer the views expressed by each of Drs Boys, Steadman, Morris and Adam that early complaint of pain would be expected had the supraspinatus tendon been damaged in the accident.
100.We acknowledge that Dr Morgan postulated two circumstances that might explain the absence of recorded complaint. The first was the possibility of the other injuries overshadowing an injury to the right shoulder. The second was the possibility that complaint was made but not recorded by medical practitioner. We think the circumstances of this case exclude both those possibilities.
101.As to the first of these matters it is the fact that the injuries, aside from the eye injury, were not particularly severe. There were no fractures and no admission to hospital was warranted. The injuries were essentially soft tissue injuries. Moreover the history of consultations with Dr van Eps in the 12 months following the accident does not support the conclusion that the other injuries for which Dr van Eps was consulted were of any particular magnitude such that the symptoms from them might overshadow the existence of symptoms – pain, restriction in movement and impairment in daily tasks – that might have been expected from a damaged supraspinatus tendon.
102.Our impression from reading Dr van Eps’ clinical notes is that he was a careful recorder of the complaints made to him. We do not accept that Mr Jackson could have complained of right shoulder pain prior to August 2002 without those complaints having been recorded by Dr van Eps.
103.The position then is that there is no logical explanation for the absence of complaint of shoulder symptoms in circumstances where medical opinion suggests that there ought to have been. It seems to us to be far more likely that the problems with Mr Jackson’s right shoulder are, as Drs Boys and Morris suggested, the product of his age rather than the accident of August 2001. We are, accordingly, not satisfied that Mr Jackson’s right shoulder condition was contributed to in a material way by the accident of August 2001.
104.That, however, is not the end of the matter. Mr Morgan, counsel for Mr Jackson, in his closing submissions, came up with an ingenious argument which was that the condition that Mr Jackson’s shoulder is now in is the consequence, albeit unintended, of surgery on his shoulder undertaken at the request and cost of Telstra with the result, so it was said, that the present condition amounts to an injury arising out of, or in the course of, employment. Whilst the argument had not been articulated in the Statement of Facts and Contentions lodged on behalf of Mr Jackson no objection was taken by Telstra to the raising of the point and it was the subject of detailed written submissions from both sides following the hearing. But one of the consequences of the late airing of the argument is that the factual bases of the argument were not the object of any focus in the course of the hearing.
105.Perhaps as a consequence of that, our view is that the evidence does not make good the submission. There are two crucial factual findings that would need to be made before the issue could be determined favourably to Mr Jackson – first, that he has the condition known colloquially as frozen shoulder and secondly that it was the consequence, in a causal, rather than temporal, sense, of the surgery. We are not satisfied of either of these matters.
106.Unsurprisingly, the medical evidence, by and large, did not touch upon the first issue because it was not an issue until after the completion of the evidence. It was the subject of some discussion by Dr Steadman, which we shall deal with shortly. However the other practitioners accepted the condition as having occurred on the basis of what Mr Jackson described, by reference to the point at which movement became painful, as the range of movement in his right arm. There is significant reason to doubt the accuracy of Mr Jackson’s descriptions given in this way on the basis of observations of a range of movement made by Dr Steadman that are directly contrary to that asserted by Mr Jackson. Dr Steadman’s report of 25 September 2007 touched upon the topic in these terms:
“On examination Mr Jackson is co-operative but highly overstated. He has [sic] his eyes closed throughout the whole assessment and the physical examination. …
He complains of pain in both his right leg and both arms, the right being worse than the left. He will only move the right shoulder to 30 degrees, but he will lift it himself to 90 degrees, and the left one moves normally.”
Dr Steadman expanded upon these observations in the course of giving evidence. The movement he observed involved abduction, that is, movement of the arm out to the side, of 90 degrees when Mr Jackson was sitting at a desk reaching for papers on the desk. He said:
“Okay. Well, let’s try and focus on post-surgical frozen shoulders because that’s what we’re dealing with here, are we not?‑‑‑I don’t believe he’s got a frozen shoulder.
Right. You don’t accept that proposition?‑‑‑No.
Right. Okay. And on what basis do you not believe he has a frozen shoulder?‑‑‑Because of his physical signs.
That doesn’t help us, Doctor. What physical signs do you say are inconsistent with a frozen shoulder?‑‑‑His range of movement and his – and the general demeanour of the large part of the examination. So even at best - I accept you’re asking me also about his shoulder, but it – not taking into account a large array of background factors that are occurring in the same examination in terms of the participation in the process.
But as I understand it, what underlies a lot of your opinion is that you’re unable to separate these different components, and that’s one of the reasons that you weren’t prepared to put a figure on the non-economic loss side of this man’s claim?‑‑‑You’ll have - there are two questions again in that, and you’ll have to refer to non-economic loss separately. But it again highlights the fact that the shoulder is not in isolation, and I accept that you’re trying to separate them out. And really, if we’re going down this path, then really the eight per cent impairment that I’ve given him for his range of motion in the shoulder has been null and void because it seems that the – you know, that the examination process, you know, in terms of assessing his range of movement, even whether he participates or not, no longer means anything, and it also means that the – as I say, at best he’s had a bad outcome from surgery, the best thing is how he arrived – and having the operation in many ways is probably the more important point, but – I’ll stop there.
Do you have any clinical basis for saying that this man has not had failed shoulder surgery?‑‑‑Have I got any clinical basis for – ask me that again.
Do you have any clinical basis for asserting that this man does not have failed shoulder surgery?‑‑‑No. But I believe he has had failed shoulder surgery.Right. Thank you. Now, Doctor ‑ ‑ ‑
THE D.PRESIDENT: But – sorry, just before you go, you say though that that is not inconsistent with the view that you have that the signs are inconsistent with frozen shoulder?‑‑‑Exactly. I’m being asked to answer a question which is that this shoulder is entirely in isolation, but I’m saying that in terms of examining this man and the photos of his behaviour, it was all equally as bizarre – and it’s not just bizarre in his shoulder; it’s bizarre throughout the whole body. And so I’m being, you know, pulled apart on concerns of the shoulder range of motion, and yet he won’t let me move the shoulder because he says it hurts. I don’t want to hurt him, so he doesn’t take me to the Medical Board and say that I’m making – I’ve made his shoulder position worse after the examination, so I’m hamstrung between – in a difficult problem. So I examined him, I asked him to move his shoulder but he won’t do it. He’s got his eyes closed the whole time. He’s drawn all over him. He won’t – he moves his shoulder himself better. You know, does he have a frozen shoulder: the answer is - I have no idea if he has a frozen shoulder because the specific physical signs of a frozen should require an assessment of certain specific loss of movement. I’m unable to ascertain those from this examination because of the demeanour of the process that is going on.
All right. Well, I think I better understand now what you said. It’s not – you don’t reject the proposition that he has a frozen shoulder; you were simply unable to tell from the tests that you were able to conduct whether he has or not?‑‑‑And I – and better than that, I have given him the benefit of the doubt by giving him an eight per cent – seven per cent or eight - for his shoulder.”
107.We should observe that it was not put to Mr Jackson that he had moved his arm in the way described by Dr Steadman however it seems highly unlikely that he could have any detailed recall of his visit to Dr Steadman. We intend no criticism of Mr Clark in saying that; he was not to know at the time that those observations were germane to an argument that had not been articulated. We note however that the observations of Dr Steadman were relied upon, in part, in Telstra’s supplementary submissions to answer the new argument and that the supplementary submissions on behalf of Mr Jackson did not take issue with that response. We also note that the observation made by Dr Steadman was in his report, albeit expressed somewhat obliquely, and that immediately after Dr Steadman gave his evidence Mr Jackson was recalled to clarify one aspect of his consultation with Dr Steadman. That is, there was an opportunity for Mr Jackson to make such comment on Dr Steadman’s observations as those who advised him saw fit to elicit from him.
108.Dr Steadman’s observation, which we accept, together with our own reservations about the reliability of Mr Jackson’s reporting of symptoms and Mr Jackson’s demonstrated (by reference to the psychological tests) presentation in an extremely negative and probably exaggerated fashion lead us to conclude that we are unable to be satisfied what Mr Jackson’s present condition is, that is, whether he has the condition colloquially described as frozen shoulder.
109.Moreover, there is a considerable body of evidence that suggests that, whatever the condition, it need not necessarily result from the surgery. In that regard we note that Dr Morris suggested that the shoulder condition might be explicable on the basis of natural degenerative change and Dr Boys expressed the view that the condition of frozen shoulder was:
“more frequently seen in people who are unable to undergo the appropriate rehabilitation or won’t undergo the appropriate rehabilitation to get the shoulder moving.”
110.Because the matter was raised only at the last moment the factual bases for reaching a conclusion favourable to Mr Jackson were not adequately explored in the evidence and we are left in the position that we are not satisfied that Mr Jackson’s shoulder is as he presents it to be, or that its condition, whatever it might be, is attributable to shoulder surgery in October 2005. As a result of that we reject the alternative basis upon which Mr Jackson contended Telstra ought be liable to pay him compensation for his shoulder injury.
The mental state - causation
111.Whatever diagnosis may be made, we accept the submission of Mr Morgan that the question of whether the condition is a disease as defined in the SRC Act falls to be determined by reference to that definition prior to the amendments effected by the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007[10]. Thus, the question is whether Mr Jackson’s ailment was one “that was contributed to in a material degree by [his] employment by [Telstra]”.
[10] No. 54 of 2007.
112.The adjective “material” imposes “an ‘evaluative threshold’ below which a causal connection may be disregarded”[11]. As Finn J said in that case[12], a determination of that connection requires:
“an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question”.
[11] Comcare v Sahu-Khan (2007) 156 FCR 536 at 542, [13].
[12] (2007) 156 FCR 536 at 543 [16].
113.We are satisfied that Mr Jackson’s employment did not contribute to his mental state. The connection between the employment and the mental state is temporal only, not causal in the requisite sense.
114.A variety of matters compel us to that conclusion. Logically, the first in time is that Mr Jackson had a history of minor depression or stress prior to the incident of August 2001. On two occasions, that condition was associated with the prospect of redundancy.
115.Next we should record that Mr Jackson and Mrs Jackson were shrewd investors in the property market and owned five “negatively-geared” investment properties and other investments in property. The effect of these investments was such that Mr Jackson was able to vary income tax instalment deductions from his wages to nil; however the family had a considerable interest burden to service. The forced redundancy in May 2002, and the loss of the income stream from Mr Jackson’s wages, placed an enormous financial burden on Mr Jackson. His comment to Dr Lovell in March 2006 was that “at this stage of his life he thought he’d be coasting, instead of looking up at a cliff face”.
116.Moreover it is apparent from Mr Jackson’s evidence that forced redundancy after 37 years of loyal service to Telstra came as a bitter blow to him. We do not doubt that he saw it as an act of disloyalty, perhaps even treachery, on the part of Telstra to whom he had given a lifetime of loyal and faithful service. There is no doubt a view, on which we need not express an opinion, that Telstra’s attitude to its long-serving employee was heartless and callous. All of these matters, we are sure, had an emotional effect on Mr Jackson.
117.We observe next that, objectively, the physical injuries, perhaps with the exception of the eye injury, were not particularly severe. They were soft tissue injuries from which one might ordinarily expect a fairly rapid recovery, within weeks rather than, as Mr Jackson seems to suggest, years.
118.Next, it is the case that the first reference post accident to Mr Jackson’s mental state comes in May 2003 when Dr van Eps suspected depression and prescribed medication although the medication appears not to have been persisted with for long. It was not until November 2005, more than four years after the initial incident, that Dr van Eps took steps to arrange psychological counselling from Dr Noordink. We do not consider the reference in the rehabilitation report of 3 September 2001 to Mr Jackson reporting “delayed shock” can be regarded as a reference to Mr Jackson suffering from a mental condition, or at least not a mental condition of the nature that is undoubtedly suffered now by Mr Jackson.
119.Dr Hogan expressed the view that Mr Jackson’s condition, which he diagnosed as anxiety disorder and depressive disorder, was “a result of the injuries that have occurred and the major changes of life that have occurred since the accident happened”. We accept that that was Dr Hogan’s medical opinion however he was not turning his mind to the legal issue that arises in the present case which is whether the employment made a material contribution to the development of those conditions.
120.Posing the question in that way and having regard to the factual matters we have set out, we are not satisfied that a causal relationship exists between Mr Jackson’s mental condition and his employment.
Incapacity
121.By virtue of s 19 of the SRC Act[13] there is a liability to pay compensation, calculated in accordance with that section, “to an employee who is incapacitated for work as a result of an injury”. A reference to “incapacity for work” is, by virtue of s 4(9) of the SRC Act:
“a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by … a licensed corporation in that work or any other work immediately before the injury happened.”
[13]Neither party suggests that Mr Jackson is “an employee to whom section 20, 21, 21A or 22 applies”, hence we have confined our attention to s 19 of the SRC Act.
122.The case for Mr Jackson is that he was incapacitated for work as a result of one or more of his injuries for all of the period from the date of the incident. He received compensation from 14 August 2001 to 3 September 2001 and from 28 February 2003 to 4 April 2003 when he underwent, and recovered from, an operation on his right eye. What is in issue as a consequence of the determinations of 25 August 2006 and 20 October 2006 is, in effect, Mr Jackson’s entitlement to compensation for incapacity otherwise.
123.In light of the findings that we have made regarding Mr Jackson’s right shoulder and his mental state we are concerned only with the effects of his eye injury and the initial physical injuries upon his capacity to work.
124.We should start this aspect of our decision by reciting some facts that are not in issue. From the day of the accident to 3 September 2001 Mr Jackson was paid compensation by way of incapacity payments. From 4 September 2001 he returned to work on a part-time basis in accordance with the views of Dr van Eps who certified him as being capable of clerical work for 15 to 20 hours per week with certain physical restrictions. Mr Jackson was working on a full-time basis by the end of November 2001 on “office duties”. He was not fit to drive a truck at that time because of problems with his vision. So far as we can discern from the leave history[14], Mr Jackson appears to have undertaken work on this basis until 3 January 2002. Thereafter from 7 January 2002 until 10 May 2002 he was paid sick leave.
[14] Exhibit 1, pages 415-418.
125.Until the termination of his employment on 10 May 2002 Mr Jackson was paid his full salary because he was either at work or receiving sick leave benefits. The determination by Telstra rejecting the claim for compensation for incapacity notes that, for that reason, Mr Jackson was not entitled to payment during this period. The case for Mr Jackson did not suggest to the contrary so we proceed on the footing that we are required to consider Mr Jackson’s condition from May 2002 onwards. It is certainly the case that at least from the end of November 2001 Mr Jackson was capable of working on a full-time basis. It seems to us not to matter that Mr Jackson found that work unsatisfying.
126.Thereafter the evidence does not suggest any change to the capacity of Mr Jackson to engage in employment that was attributable to Telstra. He consulted with Dr van Eps in April 2002 but the purpose of that consultation was to obtain a referral for the purposes of litigation. There is no note by Dr van Eps at that consultation of any continuing complaints. There is evidence from both Dr Briner and Dr Turner that Mr Jackson was incapacitated during the period of, and following, the eye surgery in February 2003, however there is no evidence otherwise that Mr Jackson was incapacitated as a consequence of injuries that had a relationship with his employment. It is undoubtedly the case that as time passed and Mr Jackson’s shoulder condition and his mental state worsened he would have become incapacitated for work but in light of our earlier conclusions we do not regard any incapacity arising from these conditions as being compensable.
127.We are thus not satisfied that Mr Jackson was incapacitated for work at any time other than the times when received payments from Telstra.
Conclusions
128.We turn then to the effect of these conclusions on the each of the decisions in issue.
129.Given our conclusion that Mr Jackson’s shoulder condition and mental state are not attributable to his employment, Telstra’s liability to pay compensation by way of incapacity payments is determined by reference to the effects on Mr Jackson of the eye injury and the initial injuries, described in the determination of 5 September 2001 as “contusion of multiple sites”. In light of our conclusion in paragraph [127] above we would affirm that part of the decision under review in application Q 200600874 that deals with the entitlement to incapacity payments.
130.The other aspect of application Q 200600874 is the decision that Mr Jackson was not entitled to reimbursement of costs associated with the treatment of his shoulder. As we have concluded that Telstra is not liable to pay Mr Jackson compensation for the right shoulder condition we would affirm that part of Telstra’s decision. The costs were not costs of medical treatment obtained in relation to an injury as that term is defined in the SRC Act.
131.Application Q 200600898 concerns three decisions.
132.The need for Mr Jackson to attend the pain management program arose as a consequence of his shoulder condition. We are not satisfied that any of the injuries caused to him in the August 2001 incident could possibly have been causing him continuing pain in 2006. We are not satisfied that the recommended treatment was treatment for which Telstra was liable to pay compensation.
133.We would, as well, affirm that part of the decision that relates to payments for incapacity given our conclusions above.
134.We have concluded in paragraph [120] that there is no causal relationship between Mr Jackson’s mental condition and his employment. That is, the condition, whilst an ailment as that term is used in the SRC Act, is not one that was caused or contributed to in a material degree by Mr Jackson’s employment by Telstra. Thus we would affirm the decision made on 20 December 2006, the subject matter of application 2007/0932, and the decision made on 27 February 2008, the subject matter of application 2008/0929.
135.The subject matter of application 2007/3507 was the decision refusing compensation for permanent impairment. Mr Jackson’s case was predicated upon the notion, which we have rejected, that each of his shoulder condition and his mental state was attributable to his employment. It seems not to be part of his case that he otherwise has ailments (excluding his eye) that amount to permanent impairments. But, in any event, we are not satisfied that there are. It is agreed that Mr Jackson’s permanent impairment arising from the eye injury is 8%. As this is the only permanent impairment and as it is below the 10% threshold in s 24(7) of the SRC Act, Mr Jackson is not entitled to compensation for permanent impairment and we would affirm the decision in application 2007/3507.
I certify that the preceding 135 paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Associate Professor J B Morley RFD, Member
Signed: ......................Signed.............................................
Jacqueline Woods, AssociateDates of Hearing 28-30 April 2008; 1, 5-7, 9 May 2008
Last submissions received 6 June 2008
Date of Decision 29 August 2008
Counsel for the applicant Mr B Morgan
Solicitors for the applicant Kerin & Co
Counsel for the respondent Mr C J Clark
Solicitors for the respondent Sparke Helmore
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