Jelicic and Telstra Corporation Limited
[2003] AATA 500
•30 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 500
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/528
Nº V2001/1243GENERAL ADMINISTRATIVE DIVISION
Re: VLADISLAVA JELICIC
Applicant
And: TELSTRA CORPORATION LIMITED
Respondent
DECISION
Tribunal: M. J. Carstairs, Member
Date: 30 May 2003
Place: Melbourne
Decision: The Tribunal:
(a)sets aside the decision under review in respect of costs associated with arthroscopy of the right shoulder and substitutes the decision that the respondent was liable to pay those costs;
(b)sets aside the decision under review in so far as it ceased liability in respect of aggravation of calcific tendonitis and substitutes the decision that the condition is an aggravation of calcific tendonitis with secondary impingement and that under the Safety, Rehabilitation and Compensation Act 1988 (the Act) the respondent continues to be liable in respect of that condition; and
(c)sets aside the decision under review in regard to permanent impairment and remits to the respondent the assessment under s24 and s27 of the Act taking into account that the applicant has a 10% whole person impairment under Table 9.1 of the Guide.
The Tribunal orders that the applicant’s costs be paid in accordance with s67 of the Act.
(sgd) M.J. Carstairs
Member
COMPENSATION - calcific tendonitis of right shoulder - cessation of liability – permanent impairment
Safety, Rehabilitation and Compensation Act 1988 ss14(1), 16, 19, 24
Arnott’s Snack Products Proprietary Limited v Yacob (1985) 155 CLR 171
Asioty v Canberra Abattoir Proprietary Limited (1989) 167 CLR 533
REASONS FOR DECISION
30 May 2003 M.J. Carstairs, Member
1. This is an application by Vladislava Jelicic (the applicant) for review of decisions of a delegate of Telstra Corporation Limited (the respondent) dated 28 March 2001 to cease payments of compensation for a right shoulder injury and to refuse to meet the cost of arthroscopic surgery to that shoulder, and dated 9 July 2001 refusing a claim for permanent impairment.
2. At the hearing of this matter on 24 January 2002, 18 November 2002, 19 November 2002 and 17 January 2003 Mr T. Keeley of counsel, instructed by Ryan Carlisle Thomas, represented the applicant, and Mr J. Lenczner of counsel, instructed by Sparke Helmore, represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T36), together with ten exhibits (Exhibits A1‑A10) lodged by the applicant and three exhibits (Exhibit R1-R3) lodged by the respondent.
BACKGROUND
4. The applicant was born on 9 November 1952 and commenced work with the respondent in 1998 as a sales consultant. On 21 May 2000 she sought medical treatment following pain in her right shoulder as a result, she thought, of exposure to cold air from an air-conditioning unit in her place of employment. Her medical practitioner diagnosed …calcific right rotator cuff tendonitis and certified that the applicant was unfit for work for a period, and then fit for modified duties. On 5 June 2000 she lodged a claim for compensation in respect of a right shoulder injury. On 1 August 2000 the respondent accepted liability for …aggravation of pre‑existing condition of calcific tendonitis of the right shoulder from 21 May 2000.
5. In a determination dated 27 November 2000 the respondent decided that it was not liable to pay for arthroscopy of the right shoulder. In a determination dated 19 January 2001 the respondent decided to cease liability for the injury. In a reviewable decision dated 28 March 2001 the respondent affirmed those decisions.
6. On 15 May 2001 the applicant lodged an application with the Tribunal for review of the decisions concerning the aggravation of calcific tendonitis and refusal of the arthroscopic procedure. On 28 June 2001 her solicitors lodged a further claim for permanent impairment in respect of the right shoulder. After the respondent further determined on 9 July 2001 and 31 July 2001 that it was not liable to pay lump sum compensation to the applicant in respect of any claimed permanent impairment, the applicant lodged an application with the Tribunal for review of the decisions on 26 September 2001. On 27 March 2002 (that is, after the first day of hearing in this matter) the applicant underwent arthroscopic surgery with the consent of the respondent and at the respondent’s expense.
EVIDENCE
7. In a written statement dated 5 January 2002 (Exhibit A1) the applicant said that her work as a sales consultant for Telstra was constant and repetitive, and involved considerable use of a computer keyboard. She stated that in April 2000 while working at her desk, which was situated beneath an air-conditioning duct (the vent), at Glen Waverley she noticed that the air was colder than normal and was blowing on her right shoulder. She described a feeling of discomfort and pain in her right shoulder, which continued over several days despite the application of heat patches to her shoulder. She said that she took Panadol tablets to ease the pain. In oral evidence, the applicant said that when she developed pain, her usual duties involving the use of a computer keyboard and mouse, which she had previously coped with, became difficult.
8. The applicant stated that on 20 May 2000 the pain became unbearable and the next day she attended Dandenong Valley Private Hospital, where she was told that she had a frozen right shoulder and calcium deposits in her shoulder. She stated that her treating doctor certified that she was unfit for work from 23 to 27 May 2000. When she returned to work the pain continued and she was moved to a location away from the vent. In about August 2000 the respondent’s office moved to Burwood, and the applicant told the Tribunal that at the time of the move the air-conditioning was still faulty and the air in the Glen Waverley office was extremely cold.
9. The applicant stated that she consulted a surgeon who diagnosed calcific tendonitis and recommended arthroscopic decompression with excision of the calcium. She said that her condition remained unchanged, and that her level of pain increased in colder weather. She explained that the pain caused difficulty in sleeping and carrying out basic household tasks. At times her shoulder became stiff and required physiotherapy. The applicant stated that she worked reduced hours, six hours per day, although the pain became more severe after about 2-3 hours and sometimes she was forced to take time off work. She said that she took medication to relieve the pain, but was no longer able to afford physiotherapy. She also emphasised that she wished to undergo the recommended surgery and was concerned that without such treatment her condition would deteriorate.
10. In oral evidence given after the surgery, the applicant said she wore a sling on her arm for six to seven weeks, and suffered pain, although she experienced improvement after the sling was removed. She said that she was getting better slowly, but noticed that there was no further improvement after a time. In November 2002 she was receiving physiotherapy and hydrotherapy and her medication included Tramal, Vioxx and Stilnox. The applicant gave evidence that she is limited in certain movements above shoulder height and in reaching behind her back. She has been able to return to work, for four days per week and later for five days, but she experiences tiredness towards the end of the working day. In early 2003 she successfully applied for a different position with the respondent with less computer keyboard duties and greater opportunity to move around. The applicant said that Mr J. Salmon, orthopaedic surgeon, told her after the surgery in March 2002 that he had done all he could do in regard to the condition of her shoulder and did not need to see her further.
11. Under cross-examination, the applicant acknowledged that she had previously claimed compensation for stress, and that she had been depressed in late 2000 as a result of personal issues relating to her husband. She said the latter matters had now resolved.
12. In a written report dated 25 January 2001 (T30), Dr M. Mazzoni, general practitioner, stated that he had treated the applicant from May 2000 for persistent shoulder pain. X-rays taken in May 2000 showed calcification in the supraspinatous tendon, while an ultrasound test on 6 July 2000 showed a thickened supraspinatous tendon with calcification. Dr Mazzoni therefore diagnosed a calcific tendonitis and referred the applicant to Dr M. Patrick, consultant physician and rheumatologist. Dr Mazzoni stated that Dr Patrick’s view was that, in addition to calcific tendonitis, the applicant had an adhesive capsulitis. On further referral to Mr Salmon it was considered that there was marked impingement (that is, a spur or a roughened surface of the covering of the bone in the coracoacromial arch that results in catching of the surfaces when movement is undertaken). Dr Mazzoni considered that the calcific tendonitis was a pre-existing condition that was aggravated in the course of the applicant’s employment as a customer service officer.
13. In a report dated 15 January 2002 (Exhibit A5), Dr Mazzoni described the condition as calcific rotator cuff tendonitis. He considered the applicant would benefit from arthroscopic surgery and decompression of her right shoulder. In a report dated 15 May 2002 (Exhibit A7) Dr Mazzoni stated that when he saw the applicant in May 2002, after the surgery, she was in the early stages of post-operative recovery, was undertaking gentle exercise, but complained of depression.
14. Dr Mazzoni considered that the applicant’s pain was organic in nature, though he acknowledged under cross-examination that there might be additional non‑organic issues. In oral evidence, after the surgery, Dr Mazzoni said that he considered that the applicant would continue to experience minor degrees of pain. He said that with calcific tendonitis residual pain could occur, although he considered that the results from the surgery were good. He said that an inflammatory response and scarring can arise from the surgery itself, and that this may account for the applicant’s continued symptoms. He considered the applicant’s restrictions in movement were genuine. Dr Mazzoni considered that it was possible that the applicant would be able to increase her hours of work from four 6¼-hour days to full‑time, by mid-2003.
15. In a written report dated 25 January 2001 (T31), Dr Patrick stated that the applicant presented in September 2000 with clinical signs of right shoulder irritability. X-rays and ultrasound confirmed thickening of the supraspinatous tendon and an area of calcification. Dr Patrick said that repetitive tasks at work would have aggravated the applicant’s shoulder problem and that decompressive surgery was required.
16. In a written report dated 22 August 2002 (Exhibit A8), Mr Salmon stated that he performed a right arthroscopic subacromial decompression on the applicant on 27 March 2002. Mr Salmon had recommended the need for decompression surgery in a report dated 22 January 2001 (T29). He considered that the applicant’s shoulder condition was related to her work, noting that rotator cuff problems often occur in person using computers and keyboards.
17. Mr Salmon found no evidence of residual calcific tendonitis at the time of the surgery, and a pre-operative x-ray had produced no evidence then of the presence of calcium. He said that calcific tendonitis was evident in x-rays taken in May and November 2000. In the course of the surgery he found that the calcium present earlier had been reabsorbed. He said calcium is an indication of tendon damage, and although many people find that when it is reabsorbed their problems resolve, this had not occurred in the applicant’s case. Mr Salmon considered that the applicant’s condition was related to work and he confirmed that it was not an unusual condition for employees in call centres or those working with computers.
18. Mr Salmon stated that, when he conducted the surgery, he noted two problems. First, that the subacromial bursa was thickened and that this was indicative of past inflammation in the area. He said that he removed the thickened area with an arthroscopic shaver. Secondly, he exposed an area of impingement. He said the applicant’s case was not severe.
19. Under cross-examination, Mr Salmon said that the thickening or inflammation of the bursa was part of the process, but the real problem was that after the calcification had occurred there was tendon damage, which was then impacted upon by the spur or impingement. He said that the impingement was worsened because of inflammation of the tendon in the acute phase of the calcific tendonitis, and that, if the applicant had not had the earlier inflammation, she might not have experienced the later symptoms of impingement. Mr Salmon said, therefore, that although this was a degenerative condition, the fact that it became symptomatic was related to the applicant’s work. Under cross-examination, Mr Salmon said that the level of the applicant’s pain was not necessarily disproportionate to her physical signs, as there are cases where a person will suffer symptoms with a minor tear of the tendon and others will have no symptoms even though the tear is marked.
20. In his August 2002 report, Mr Salmon described the applicant’s condition as stable, with expected continued improvement as a result of anti-inflammatory medication and physiotherapy. Mr Salmon recommended restricted duties, and expected that the applicant would have a five to ten per cent long-term impairment. In a later report dated 17 September 2002 (Exhibit A10), Mr Salmon said that he noted further improvement in the applicant’s range of movement and said the applicant’s condition would stabilise …over the next few months. Under cross‑examination, Mr Salmon said that although recovery time could be eight to nine months, continued complaints at eighteen months would be worrying. When it was put to him in cross‑examination that any impingement problems would resolve over time, he disagreed, although he said impingement problems could be asymptomatic. He considered that by November 2002 the applicant had made a reasonable recovery but said that it was not unusual to experience some residual pain, as surgery will not resolve all cases completely.
21. In a written report dated 8 May 2001 (T36), Dr R. O’Brien, Associate Professor of Medicine at Western Hospital stated that the applicant had a calcific supraspinatus tendonitis with an associated rotator-cuff dysfunction and impingement. He considered that there was evidence of a partial adhesive capsulitis. He said that the condition began at work and was aggravated by work. In a further report dated 24 October 2002 (Exhibit A9), Dr O’Brien stated that the applicant was likely to have some ongoing disability following the shoulder surgery, and would be unable to undertake any employment that required repetitive or strenuous use of her right arm. He assessed her disability as a ten per cent impairment of the right upper extremity. In oral evidence Dr O’Brien said that he rated the applicant as having a 10% impairment under Table 9.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) as seven months after the surgery she fitted the description at that level of the relevant Table, having a loss of less than half the normal range of shoulder movement.
22. In oral evidence Dr O’Brien said that he considered that the applicant had developed a rotator cuff tendonitis as a result of holding the computer mouse in an awkward position. He said that, as well as rotator cuff dysfunction, it is likely that she had adhesive capsulitis. Dr O’Brien said that the fact that her condition responded to an injection of steroids in 2000 indicated that the condition was organic. He said that the applicant experiences muscle spasms as part of a regional pain syndrome.
23. In a written report dated 31 July 2000 (T10) Dr E. Lenaghan, rheumatologist, stated that the applicant had developed a right shoulder calcific tendonitis. Due to the size of the calcific deposit, Dr Lenaghan considered it had probably been present prior to the applicant’s employment with Telstra two years previously, but had been aggravated by the applicant’s computer keyboard and mouse work. Dr Lenaghan considered that it would resolve in a short time with conservative measures and treatment with steroids.
24. In a written report dated 2 July 2002 (Exhibit R1), Dr Lenaghan noted that the applicant reported a history of a nervous breakdown in 1994. Dr Lenaghan said that, more probably than not, the applicant’s employment aggravated a pre-existing condition of calcific tendonitis in her right shoulder as a result of repeated use and movement of her right arm. She stated that she was not able to say whether depression was a contributing factor to the applicant ceasing work in December 2001, but non-physical factors were relevant. Dr Lenaghan suggested that the effect of the contribution to the applicant’s condition from her employment ceased as a result of a local steroid injection between 20 July 2000 and 30 October 2000 and that any incapacity for work was due to the slow recovery from surgery, which in turn was the result of non-organic factors.
25. In oral evidence, Dr Lenaghan said that acute calcific tendonitis develops quite quickly and can be distressing. However, it responds well to administration of cortisone. It was her view that there would be no pain once the calcium was reabsorbed. Dr Lenaghan considered that the applicant showed little evidence of disability in the shoulder but exhibited considerable pain behaviour. Under cross‑examination, Dr Lenaghan said that she formed the view that the applicant had a pain syndrome and not a calcific tendonitis or bursitis. She considered that the surgery had been unnecessary once the calcium had been reabsorbed. In her view the condition did not require surgery and did not support the views expressed by Mr Salmon about impingement. Dr Lenaghan acknowledged in cross-examination that July 2002 was too soon after the surgery to assess permanent impairment.
CONSIDERATION OF THE ISSUES
26. Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) provides:
…
14.(1) 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.
27. Mr Lenczner submitted that there were two issues for the Tribunal, namely whether liability should have ceased on 19 January 2001, and whether the decision‑maker was correct to refuse a claim for permanent impairment on the ground that liability had been ceased. Mr Lenczner said that the fact that the respondent had accepted liability was irrelevant and that the question was how long the accepted aggravation continued.
28. Mr Lenczner submitted that the evidence of Mr Salmon, Dr Lenaghan, and Dr O’Brien was that cold air might worsen the applicant’s perception of pain, though cold air would not cause the condition. He submitted that on Mr Salmon’s evidence the condition was an impingement problem, where the formation of a spur or some enlargement of the bone reduces the space in the bursa and discomfort can result. However, the impingement observed by Mr Salmon was the product of degenerative changes and was not work-related. He submitted that Mr Salmon assumed the work connection without identifying any defining incident. Mr Lenczner submitted that there was insufficient evidence that the applicant’s work was of such a repetitive nature as to be a cause.
29. Mr Lenczner submitted that Dr Lenaghan's view, that the condition had resolved, should be preferred to the views Mr Salmon and Dr O’Brien. He submitted that the applicant should not be believed about continuing pain and that she had used her shoulder condition to seek advantage in preferred work with her employer. In regard to permanent impairment, Mr Lenczner submitted it was too early to say whether the recovery process was complete, and on Mr Salmon’s evidence the process may take twelve to eighteen months. Furthermore, Mr Salmon put the level of impairment at five to ten per cent only, and his opinion should be preferred to that of Dr O’Brien who assessed impairment at ten per cent.
30. Mr Keeley submitted that liability had been accepted on 1 August 2000 for an …aggravation of a pre-existing condition of calcific tendonitis of the right shoulder (T11). The claim had been accepted on the basis of a report by Dr Lenaghan (T10), which diagnosed right shoulder calcific tendonitis, aggravated by the applicant’s constant use of a computer keyboard and mouse. He said that all the medical practitioners, apart from Dr Lenaghan, were in agreement that the surgery carried out in March 2002 was required. Mr Keeley submitted that the Dr Mazzoni's evidence, that there was an organic basis to the symptoms, was to be preferred to Dr Lenaghan's more recent opinion that the condition is primarily non-organic. Mr Keeley submitted that the evidence of Dr Patrick, Dr O’Brien and Mr Salmon that the applicant’s condition warranted the surgery confirmed that the problem was organic. This was further confirmed by the applicant’s evidence of substantial improvement after the surgery.
31. Mr Keeley submitted that the evidence of Dr Patrick, Mr Salmon and Dr Mazzoni was that the applicant’s employment had contributed to the condition. He said that Dr Lenaghan had accepted in July 2000 that the condition was due to the nature of the applicant’s work, in that the work turned an underlying but asymptomatic condition into one where the applicant experienced pain and limitation. Dr Lenaghan noted in her report the presence of calcification, and this was later confirmed in x-rays in November 2000. Mr Keeley submitted that when, in her November 2000 report (T16), Dr Lenaghan completely changed her views about the connection with the applicant’s work, it made no sense because she did so at a time when the applicant continued to demonstrate radiological evidence of calcium deposits. He submitted that the views of specialists and practitioners who directly treated the applicant were to be preferred to those of Dr Lenaghan.
32. Both Mr Keeley and Mr Lenczner submitted that the cases of Arnotts Snack Products Proprietary Limited v Yacob (1985) 155 CLR 171 and Asioty v Canberra Abattoir Proprietary Limited (1989) 167 CLR 533 were relevant in considering issues of liability in this case.
33. On the question of permanent impairment, Mr Keeley submitted that ten months after the surgery was carried out it was possible to say that the condition was stable, and that the evidence of Dr O’Brien that the applicant had ten per cent impairment should be accepted. He said that the applicant’s evidence lent support to the view that her condition had stabilised, as she had observed no changes for some time. Mr Keeley submitted that there was no evidence that the applicant was seeking unreasonably to secure preferred employment. He submitted that the applicant had made a long and conscientious attempt to return to work.
34. In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing.
35. The Tribunal agrees with Mr Keeley that applicant has made genuine efforts in returning to work and has shown a commitment to working to her capacity. She has taken a responsible attitude to her employment responsibilities, but she has also sensibly considered that if there were work opportunities with the respondent that put her at less risk of aggravating her injury, her preference would be to undertake those duties. From the evidence, she has now secured preferred work on the basis of a merit selection process. She presented as a dedicated employee. The medical practitioners who treated her in the course of her injury supported her evidence about her symptoms and her genuineness. The Tribunal accepts the evidence given by her treating medical practitioners that she was not exaggerating symptoms. Therefore the Tribunal finds that the applicant is an honest and credible witness.
36. The Tribunal is reasonably satisfied, taking into account all the medical evidence that the applicant’s initial condition of an aggravation of calcific tendonitis was work‑related. The Tribunal accepts the evidence of Dr Mazzoni, Dr Patrick, Mr Salmon and Dr O’Brien that surgery was required when the condition continued despite other treatments. The Tribunal takes into account that after the surgery in March 2002 Mr Salmon confirmed that the previous presence of calcium had resolved. However, the Tribunal accepts his evidence that there was confirmation of a further injury process after the calcium had been reabsorbed and that the surgery revealed the injury to be an impingement that had resulted in the applicant’s continued symptoms.
37. The Tribunal accepts the submission of Mr Keeley that the Tribunal should prefer the evidence of Mr Salmon that impingement was ongoing. The Tribunal takes into account that Mr Salmon has the most detailed knowledge, being the surgeon who undertook the decompression surgery in March 2002. Mr Salmon has had the advantage of direct observation in the course of the surgery. On the basis of Mr Salmon’s evidence, the Tribunal is satisfied that the applicant’s condition of calcific tendonitis was further aggravated in the ongoing impingement process. The Tribunal accepts the views of Dr Mazzoni, Mr Salmon and Dr O’Brien that the condition continued to be work‑related, in that the computer keyboard duties aggravated an underlying degenerative condition. The Tribunal accepts the evidence of Mr Salmon that the impingement he found during the surgery was worse because of the earlier acute inflammation of the tendon, and that if the applicant had not had the earlier inflammation she would not have had the later symptoms.
38. For these reasons, the Tribunal finds that the aggravation of the accepted pre‑existing condition of calcific tendonitis of the right shoulder did not cease on 19 January 2001, and liability for compensation did not cease on that date. The diagnosis should be amended to that given in Mr Salmon’s report (Exhibit A8), namely aggravation of calcific tendonitis with secondary impingement. The Tribunal accepts the evidence of Mr Salmon that the condition has not resolved. The Tribunal finds that the condition is an injury within the meaning of s4 of the Act and that it results in impairment.
39. In regard to the claim for permanent impairment s24 of the Act provides:
24.(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)any other relevant matters.
…
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
40. The Tribunal must first be satisfied that the condition is permanent taking into account the matters in s24(2). The applicant's evidence, which the Tribunal accepts was that after early improvement after the surgery she then stabilised and now experienced limitations in movement and symptoms of fatigue, and no further improvement was observed by her. However, she was able to return to full time work less than a year later and confirmed in her evidence that generally she was much improved after the surgery. Dr Mazzoni, Mr Salmon and Dr O’Brien confirmed her improvement. Mr Salmon's evidence was that there might be some improvement up to eighteen months after the surgery. All other medical practitioners estimated a shorter timeframe. Mr Salmon noted marked improvement in the applicant's range of movement between 26 June 2002 and 17 September 2002 (Exhibit A10) and stated then that he expected the applicant to stabilise in the …next few months.. After the surgery the applicant undertook rehabilitative treatment during 2002. Taking all the evidence into account the Tribunal was reasonably satisfied that the condition was permanent within the meaning of the Act by the end of 2002.
41. In considering the question of assessment under the Guide, the Tribunal notes that in his report dated May 2001 (T36), Dr O’Brien considered that the applicant suffered ten per cent impairment under Table 9.1. Allowing for the passage of reasonable recovery time after the surgery, the applicant told him that her shoulder was sixty per cent better (Exhibit A9). Nevertheless, Dr O’Brien found that the applicant remained with a ten per cent impairment of the right upper limb under Table 9.1 of the Guide after the surgery. Dr Lenaghan’s evidence was of little assistance as she accepted that her report in July 2002 was too close to the surgery to assess permanent impairment. Mr Salmon stated in his report on the applicant in August 2002 that he expected that the impairment would be somewhere between five per cent and ten per cent under Table 9.1 of the Guide.
42. The Tribunal notes the evidence of Mr Salmon that part of the applicant’s condition was attributable to degenerative changes and his evidence that there was substantial improvement in symptoms and in mobility after the surgery. The Tribunal takes into account some inconsistency in the two reports of Dr O’Brien, rating the applicant shoulder condition as 10 per cent both before and after surgery, despite the applicant telling him that her shoulder was sixty per cent better after it. Taking into account the whole of the evidence including the applicant’s descriptions of her limitations in movement and the evidence of Dr Salmon and Dr O’Brien, the Tribunal finds that the applicant's condition meets the description of an impairment of ten per cent under Table 9.1. The Tribunal prefers the evidence of Dr O’Brien on this point as he had the opportunity of assessing the applicant at the end of September 2002. The Tribunal accepts his evidence that the applicant’s condition left her with more than a minimal loss of function, which is the description at the level of 5 per cent in Table 9.1 and that the level of 10 per cent better reflects her level of impairment. Mr Salmon’s view is not inconsistent with this, taking into account that Mr Salmon saw the applicant earlier than did Dr O’Brien.
43. The Tribunal finds that the respondent is liable to pay compensation in respect of a whole person impairment of ten per cent under Table 9.1 of the Guide and remits the matter of assessment under s24 and s27 of the Act to the respondent accordingly.
DECISION
44. The Tribunal:
(a)sets aside the decision under review in respect of costs associated with arthroscopy of the right shoulder and substitutes the decision that the respondent was liable to pay those costs;
(b)sets aside the decision under review in so far as it ceased liability in respect of aggravation of calcific tendonitis and substitutes the decision that the condition is an aggravation of calcific tendonitis with secondary impingement and that under the Safety, Rehabilitation and Compensation Act 1988 the respondent continues to be liable in respect of that condition; and
(c)sets aside the decision under review in regard to permanent impairment and remits to the respondent the assessment under s24 and s27 of the Act taking into account that the applicant has a 10% whole person impairment under Table 9.1 of the Guide.
The Tribunal orders that the applicant’s costs be paid in accordance with s67 of the Act.
I certify that the forty-four [44] preceding paragraphs are a true copy of the reasons for the decision of:
M.J.Carstairs, Member
(sgd) Catherine Thomas
Clerk
Dates of hearing: 24 January 2002
18 and 19 November 2002
17 January 2003
Date of decision: 30 May 2003
Counsel for applicant: Mr T. Keeley
Solicitor for applicant: Ryan Carlisle Thomas
Counsel for respondent: Mr J. Lenczner
Solicitor for respondent: Sparke Helmore
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