Jennifer Holliss and Military Rehabilitation and Compensation Commission

[2013] AATA 400

[2013] AATA 400 

Division	VETERANS' APPEALS DIVISION
File Number	2010/2465
Re	Jennifer Holliss
APPLICANT
And	Military Rehabilitation and Compensation Commission
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	14 June 2013
Place	Melbourne

The Tribunal affirms the decision under review.

[sgd].................................................................

Miss E A Shanahan, Member

COMPENSATION – army officer – arising out of or in the course of employment – shoulder and thoracic back pain – contribution of physical training- disease or injury – minor radiological changes – possibly constitutional – lack of supporting expert opinion – decision affirmed

Safety, Rehabilitation and Compensation Act 1988

Thi Hau Nguyen and Australia Post [2003] AATA 218

REASONS FOR DECISION

Miss E A Shanahan, Member

14 June 2013

1. Ms Holliss (nee Thrush) lodged a claim for compensation for a back and shoulder injury on 26 June 2005.  She attributed the conditions to the performance of repetitive teabags (swimming exercises) during her military training. The respondent denied liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) on 20 February 2006.  Ms Hollis sought review of this decision on 24 June 2009 and, although more than three years out of time, the application was accepted. 

2. However, having conducted a full review and considered new evidence presented by Ms Holliss, the respondent again denied liability on 18 May 2010.  Ms Holliss lodged an application for review by the Administrative Appeals Tribunal (the Tribunal) on 18 June 2010.  She had been discharged from the Australian Army on the grounds of ill health on 31 July 2009. 

3. Ms Holliss was represented by Mr Roger Greene, an advocate of the Returned Services League, Greensborough. The respondent was represented by Mr John Wallace of counsel, instructed by Mr Michael La Vista of the Australian Government Solicitor. 

4. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents, Exhibit R1) and both parties tendered further documents as listed in an appendix to this decision.  Three witnesses gave evidence before the Tribunal. Ms Holliss gave evidence in person. Dr Aman Sood and Dr Richard Gibberd gave evidence by telephone.

   BACKGROUND TO THE APPLICATION

5. Ms Holliss joined the Australian Army as a Ready Reserve Officer on 24 January 1995 and undertook a four-week recruit training course a Kapooka, Wagga Wagga.  On 6 February 1995 she participated in a physical training lesson in the swimming pool.  This required her to perform teabags.  Teabags involve swimming across the pool, pulling oneself up to the pool rim by the arms, spinning through 180 degrees and sitting on the edge.  This procedure is repeated back and forth and Ms Holliss estimates she performed the exercise four or five times before she developed a sharp pain in her left shoulder. (Exhibit A1)  She immediately informed the instructor and was ordered out of the pool. 

6. Ms Holliss later asked to attend the medical centre but her request was denied. Ms Holliss was excused from doing the morning and evening chin-ups but was required to do additional push ups and sit-ups in lieu.  On doing so her left shoulder pain increased.  She was directed to attend the medical clinic and was seen on 8 February 1995.  The medical records (T3, p 24) record that the pain was sited over the left acromio-clavicular joint and the left trapezius muscle.  Prominence of the left scapula was noted in that the scapula was winged.  Ms Holliss was prescribed heat treatment.  When Ms Holliss was reviewed on 10 February 1995 the pain persisted although there was a full range of movement of the left shoulder.  Ms Holliss was seen the same day by a medical officer who diagnosed muscle strain and prescribed physiotherapy and analgesia. (T3)

7. The physiotherapist noted a tenderness and tightness of the left scalene and trapezius muscles (predominantly in the neck). By 13 February 1995 Ms Holliss’s pain and the muscle tightness had lessened.  Ms Holliss was instructed to perform scalene stretches in her own time thereafter. (T3, p26)  Ms Holliss resumed all physical training, which involved 40 to 80 minutes per day of marching, running with weights of approximately 10 kilograms, fence climbing, fireman’s carry of other reservists and running 100 metres. 

8. On completion of the four-week training course Ms Holliss was transferred to the Royal Military College at Duntroon for a further five months of training.  At Duntroon she participated in a battle efficiency course, daily drill for 40 to 80 minutes and was required to march to and from classes and meals, swinging her arms to breast height.

9. While there are no other entries in her medical records until March 1997, Ms Holliss maintains she continued to experience pain in her left shoulder and back but did not complain to the army medical officers, as she perceived such complaints to be detrimental to her advancement within the Australian Army. 

10. Ms Holliss graduated as a 2^nd Lieutenant from Duntroon in July 1995 and was posted to Enogerra Barracks in Brisbane.  In effect, after working full-time for six months, she became part–time soldier.  In 1997 she returned to Duntroon for a further 12 months of training to become an officer in the Regular Army.  Once again, this training required daily physical training and compulsory participation in sports. 

11. Commencing in February 1997, and recurring almost monthly, Ms Holliss sought medical attention for pain in the thoraco lumbar spine which resulted from push ups and carrying weights on obstacle courses and also occasional falls.  These episodes were treated with physiotherapy.  In July 1997 she complained of pain in the neck radiating to her right shoulder and occasionally down her right arm. (T3, p35)  Ms Holliss localised the shoulder pain to the tip of the right shoulder.  The treatment given consisted of regular physiotherapy and mild analgesia.  The last entry in the medical records relating to her right shoulder region was on 4 September 1997, when she experienced pain in the right trapezius and supraspinatus area after completing an obstacle course exercise on that day. 

12. Ms Holliss graduated from Duntroon in December 1997 and was posted to Puckapunyal as a Lieutenant in the Regular Army.  At Puckapunyal she was a transport officer and obtained licences for driving Land Rovers and medium-sized rigid trucks.  She remained in this unit as a Lieutenant for 18 months.  While at Puckapunyal Ms Holliss sought medical attention between May and September 1998 for episodes of thoracic back pain.  Once more, the back pain was treated predominantly with physiotherapy. 

13. From late 1998 Ms Holliss experienced pain in both her knees but predominantly the right knee.  Intensive physiotherapy for her knee condition was not beneficial and in 2001 she underwent a lateral release of her right patella for what was said to have been chondromalacia patellae.  As part of the rehabilitation program for her knee condition Ms Holliss was required to undergo hydrotherapy, which she found aggravated her shoulder pain and elevated her pain level.  Ms Holliss was placed on limited physical training, which enabled her to perform exercises at her own pace.  Eventually Ms Holliss’s physical activities were permanently restricted. In 2003 Ms Hollis was granted a critical skills waiver that precluded her from doing physical training.  By March 2009 Ms Holliss’s shoulder pain was at such a level that she sought further investigation.  She had been using a walking stick because of her knee problems and found this also aggravated her shoulder pain.

14. On 9 April 2009 an ultrasound of both shoulders was performed.  This was reported to show thickening of the right subdeltoid bursa and mild thickening of the left. There was mild impingement on the left and marked impingement in the right shoulder.  The acromio-clavicular joints were reported as normal. (T16, p94)  Ms Holliss was then referred to a Department of Defence Specialist, Dr McKenzie who, on examination, found that abduction of both shoulders, was limited by pain, more so on the right than the left.  There was also tenderness over the anterolateral aspect of the acromial process on the right.  Dr McKenzie advised intra-articular injections of steroids and local anaesthetic on the right side.  These injections failed to provide any symptomatic relief.

15. Miss Holliss was then referred to a surgeon, Dr Wallace, who performed a right shoulder arthroscopy on 17 July 2009.  Arthroscopic examination of the shoulder joint was normal.  In the subacromial mild synovitus was noted, as was surface fraying of the supraspinatus tendon.  Dr Wallace performed an acromioplasty.  Dr Wallace depicted the surgical procedure in a diagram contained in the operative report.  This provides a lateral view of the elements constituting the shoulder joint.  From this diagram it would appear that the inferior half of the acromial process has been resected.

16. Ms Holliss did not participate in a rehabilitation program after her acromioplasty as she was leaving Australia for the United Kingdom on 31 July 2009, her husband having been posted overseas for  12 months.

17. Ms Holliss had undergone a psychiatric assessment by Dr W Atkin in August 2006.  Dr W Atkin found no psychiatric disorder (Exhibit A4), although he referred to difficulties relating to work matters that were causing her some distress.  He advised greater communication processes within Ms Holliss’s unit.  This assessment was apparently required for a promotion Mrs Holliss was seeking.  Dr Arthur Velakoulis performed a further assessment (Exhibit A3) in August 2012 in relation to this claim. The Tribunal will refer to this assessment later. 

18. Ms Holliss’s current health status is that she is markedly restricted because of her knee condition and now uses a walking frame when outside the house.  She previously used a walking stick but found this aggravated her right shoulder pain which overall has been worse since she underwent the acromioplasty.  The more she uses the walker, and before that the walking stick, the greater the pain she experiences in her shoulders.  Her shoulder pain fluctuates according to her level of activity and her need to transfer her weight to the upper limbs because of her knee pain. 

19. Ms Holliss requires assistance around the house and her husband has to help her in and out of the bath.  Within her home she does not use a walking aid but does support herself on furniture and other items in the home.  She has been informed that there is no place for further surgical intervention for her knees.  While Miss Holliss’s active service in the army ceased on 31 July 2009 she was able to access her long service leave during the period she and her husband were in the United Kingdom. 

    ORAL EVIDENCE BEFORE THE TRIBUNAL

20. Ms Holliss’s evidence for the Tribunal and the contents of her Statutory Declaration (Exhibit A1) have been summarised under BACKGROUND TO THE APPLICATION.

    Dr Aman Sood

21. Dr Sood is an orthopaedic surgeon based in Adelaide.  He had seen Ms Holliss and provided a report dated 7 March 2011, at the request of her advocate (Exhibit R4). He provided a further report to Mr La Vista of the Australian Government Solicitor some six months later (Exhibit R5).

22. In his report of 7 March 2011 Dr Sood states that Ms Holliss first developed pain in her right shoulder in 1995 while performing swimming exercises.  She subsequently developed pain in her left shoulder due to compensatory overuse, followed by upper thoracic and then lower back pain. 

23. Ms Holliss gave a history of having developed bilateral knee pain in 1999 which eventually led to surgery on the right knee in 2001.  This surgery did not provide any symptomatic relief of her knee pain.

24. On physical examination Dr Sood found a near normal range of movement of both shoulders with some pain on abduction.  He did not detect any local tenderness but impingement signs were present. 

25. Dr Sood concluded that Ms Holliss had mild to moderate subacromial bursitis and impingement and that her reported pain was out of proportion to the physical findings.  His examination of Ms Hollis back was normal. 

26. Mr Sood had access to an MRI examination of both shoulders performed on 29 January 2011.  The MRI revealed mild left-sided subacromial outlet narrowing without bursitis and on the right side, subacromial bursitis described as mild to moderate. The rotator cuff was intact. 

27. Dr Sood stressed that the mildness of the demonstrated organic shoulder pathology did not explain the magnitude of Ms Holliss symptoms, particularly as in 70 to 80 per cent of younger persons shoulder impingement resolves spontaneously over 12 months. 

28. In his report to the respondent dated 25 October 2011, Dr Sood clarified his opinion regarding Ms Holliss’s back.  He opined that she did not suffer from any organic back pathology but over the years had presented with recurrent soft tissue (muscle) sprains.

29. Dr Sood had been provided with the report of Dr Gibberd, orthopaedic surgeon, and commented on the varying ranges of shoulder movement reported by Dr Gibberd, compared to his own examination findings.  This reinforced his earlier opinion that the organic changes in Ms Holliss shoulders did not account for her pain.  He questioned her need to use a walking stick for chondromalacia patellae and did not accept that this condition would impact in any way on her back or shoulders.  Dr Sood agreed with Dr Gibberd’s opinion that Ms Holliss’s shoulder pain was due to psychosocial factors rather than organic pathology. 

30. In his oral evidence before the Tribunal Dr Sood confirmed his written opinions and that he had used the term psychosocial to mean non-organic in origin.  At the Tribunal Member’s request, he also clarified the ultrasound report which stated that Ms Holliss had subdeltoid bursitis.  He said this was incorrect as the changes were in the subacromial bursa.  While Dr Sood did not himself obtain a full history of Ms Holliss’s physical training activities in the army, he had access to numerous other reports which described these activities.  He was, correctly, under the impression that Ms Holliss had performed administrative duties predominantly since 2000 and had assumed that any repetitive tasks she performed were in that role, for example filing documents and using a computer. 

    Dr Richard Gibberd

31. Dr Gibberd saw Ms Holliss at the respondent’s request in November 2010 (Exhibit R2).  The history he obtained is consistent with that outlined under BACKGROUND TO THE APPLICATION as he had access to Ms Holliss’s army records.  When he saw Ms Holliss she complained of pain in both shoulders more severe on the right than the left and pain in the mid-thoracic spine with lesser pain in the lumbar region.  The shoulder pain was described as present 24 hours per day and becoming increasingly severe.  Ms Holliss attributed the pain increase to her use of a walking stick.  She said her back pain occurred on three occasions per week and would last minutes to up to two hours.  Most of Ms Holliss’ activities were limited in range by her shoulders and she could not perform any tasks above shoulder height.  Ms Holliss informed Dr Gibberd that she took Panadol tablets twice a month. 

32. Dr Gibberd conducted a full physical examination.  He detected wide spread tenderness to palpation over Ms Holliss’s clavicles, both humeri and scapulae and the anterior chest wall.  All shoulder movement was limited and painful.  In his opinion, thoracic spine movement was normal and the lumbar spine movement was normal except for pain on rotation and diminished lateral flexion.  He did not detect any muscle wasting in either shoulder.

33. Dr Gibberd’s examination of Ms Holliss’s knees was limited as she declined to move them more than 10 to 15 degrees.  However, Dr Gibberd noted that her quadriceps muscles were normal, with no evidence of muscle wasting in the thighs.  In particular, he excluded winging of either scapula.  In his report Dr Gibberd concluded that the signs and symptoms elicited in both shoulders were not consistent with any organic pathology and that there was evidence of abnormal illness behaviour.

34. In his report of 14 October 2011 Dr Gibberd was asked to comment on the MRI report of January 2011.  Dr Gibberd, noting the mildness of the radiological changes, felt that this confirmed his earlier opinion.  He also reaffirmed his opinion that there was no relationship between any conditions that might be present in the knees and the shoulders and that Ms Holliss’s military service had in no way contributed to either condition.

35. In his oral evidence before the Tribunal Dr Gibberd maintained his written opinion.  Under cross-examination by Mr Greene, Dr Gibberd said he found it unusual that Dr Wallace had proceeded to an acromial resection given the mildness of the changes at arthroscopy and on ultrasound.  Dr Gibberd was aware of the rigorous training demands on members of the Defence Forces as he himself had served in the Air Force for two years. 

36. The Tribunal asked Dr Gibberd if any further treatment of Ms Holliss’s shoulder condition was indicated.  He said no, as in his opinion there were no physical signs present in Ms Holliss consistent with acromio-clavicular or subacromial bursitis.

    DOCUMENTARY EVIDENCE BEFORE THE TRIBUNAL

    Dr John Upjohn

37. Dr Upjohn is a retired surgeon who works as a general practitioner at Puckapunyal.  He completed a schedule of questions for the service on 27 July 2005.  The diagnosis made by Dr Upjohn was left upper back pain which he regarded to be of a permanent nature and causally related to Ms Holliss’s military employment.  Question 6 of this report asked to what extent do you consider that service in the ADF contributed to the causation or the aggravation, acceleration or recurrence of the condition?  With respect to causation Dr Upjohn circled greater than 50% and with respect to Aggravation/Acceleration/Recurrence he answered greater than 50% He described the extent of such contribution as being principal, significant and major. 

38. Dr Upjohn nominated the employment-related factor that caused or contributed to the diagnosed conditions as the performance of tea bags on 6 February 1995.  He described what tea bags involved but did not mention the onset of any pain while performing these exercises.  In addition, he considered that chin ups, push ups and sit ups during physical training had aggravated the condition. 

39. As Dr Upjohn did not believe Ms Holliss could perform the duties of her pre-injury employment, he recommended that she perform administrative duties that allowed her to sit, stand or walk about as desired.  He recommended physiotherapy, heat treatment and analgesics.  He advised that Ms Holliss not carry packs or wear webbing for long periods, although he noted she had not done this since 1999.

    Dr David Gras

40. Dr Gras is an occupational physician. The respondent referred Ms Holliss for an assessment by Dr Gras on 22 September 2005.  Dr Gras had access to Ms Holliss’s army medical records.  The history he obtained in relation to the original left shoulder injury was as described under BACKGROUND TO THE APPLICATION.  He states that she was not troubled again by symptoms in the shoulder until a further injury in March 1997. At the same time she had experienced episodes of upper and lower back pain, which settled after six to eight weeks of physiotherapy.  In May 1998 Ms Holliss developed parathoracic discomfort following a game of basketball and this settled over a period of five weeks.  A further episode of back pain occurred after she had been required to sleep overnight on hard ground. 

41. On physical examination of Ms Holliss Dr Gras noted a full range of right shoulder movement.  On the left shoulder all movement was normal except for a reduction in flexion from the normal of 180 degrees to 160 degrees.  He commented that she had a prominent right scapula and asymmetrical scapulae. No significant alteration in the range of movement of her neck was detected and in the lower back Dr Gras reported a full range of thoracolumbar movement with hypermobility of the lower lumbar region.  He had measured the range of movement of both shoulders, the cervical spine and the thoracolumbar spine using a goniometer and all movements of the thoracolumbar spine where 10 to 20 degrees greater than the normal range.

1. Dr Gras was unable to make a definitive diagnosis other than noting a series of intermittent soft tissue injuries affecting the upper back.  He did not believe there was any major underlying pathological process affecting the shoulders, upper back or her neck.  Dr Gras attributed the prominence of both scapulae to developmental variation.  Dr Gras recommended that Ms Holliss be seen by a specialist in physical and rehabilitation medicine and, with the approval of the Respondent, arranged for her to see Dr Jeanette Hofland. 

   Dr Jeanette Hofland

2. Dr Hofland saw Ms Holliss on 29 November 2005 and reported to Dr Gras on 19 January 2006 (T10, p68).   Dr Hofland ascertained that Ms Holliss’s major problem related to her chronic knee pain, which had commenced in the right knee in November 1998 and subsequently developed in her left knee.  Radiological investigation had revealed chondromalacia patellae.  The arthroscopy that had been performed in 2000 or 2001 had not provided any symptom relief.  Ms Holliss had said that her sleep was continuously interrupted by her knee pain and all treatment including a pain program at Royal North Shore Hospital in 2004 had been unsuccessful.  The Pain Clinic treatment included a course of Avanza, an antidepressant which is frequently used to control chronic pain.  This had to be stopped because of adverse side effects.

3. The history obtained with respect to Ms Holliss’s shoulders was that of recurrent episodes of shoulder pain often associated with upper back pain, which had resolved with physiotherapy.  However, in July 2005 Ms Holliss said she had developed pain and stiffness in her left shoulder and occasional stiffness in her right shoulder.  Physiotherapy relieved the symptoms for five to six days.  Ms Holliss had found that activity above shoulder level aggravated her shoulder pain.

4. On a physical examination of Ms Holliss, Dr Hofland found the range of movement of Ms Holliss’s neck and shoulders to be good and functional and that of her neck to reveal some stiffness in forward and lateral flexion.  Dr Hofland also noted prominence of the right scapula. There was widespread tenderness on palpation over both trapezius muscles, the rhomboids and paracervical muscles, and over the right more than the left scapula.  Dr Hofland detected no abnormality in the thoracolumbar spine.  The only abnormality Dr Hofland detected in Ms Holliss’s knees was the presence of crepitus.

5. Dr Hofland considered that all Ms Hollis’s symptoms relating to the shoulder and back were musculo-ligamentous in origin, with some features of fibromyalgia.  She recommended a brief outpatient rehabilitation program, which included physiotherapy and occupational therapy.   Following receipt of Dr Hofland’s report, Dr Grass confirmed his original opinion and considered that Ms Holliss’s muscular pain symptoms would have occurred regardless of military employment and had not been aggravated permanently by military service.  Dr Grass considered all of Ms Holliss’s symptoms to be temporary in nature with no permanent underlying pathological change.

   Dr Arthur Velakoulis

6. Dr Velakoulis is a psychiatrist.  Ms Holliss sought his opinion as to her general psychiatric status and in particular whether she had a psychosocial or psychosomatic disorder.  Ms Hollis described some stressful reaction to the non-acceptance of her claim for compensation and that many of her physical symptoms had been deemed to be psychosomatic.

7. Dr Velakoulis obtained a very detailed history of her physical complaints but found no evidence of any underlying psychiatric disorder including Somatisation Disorder, Hypochondriasis or a Chronic Pain Disorder.

   SUBMISSIONS

8. Mr Greene submitted that the rigorous army training Ms Holliss had undertaken in the early years of her service had made a significant and material contribution to the symptoms in both shoulders and her back.  On his calculation, she had spent 180 days in 1995 and 350 days in 1997 involved in daily physical training.  In support of his contention, Mr Greene drew the Tribunal’s attention to the Repatriation Medical Authorities’ Statement of Principles (SoP) concerning Rotator Cuff Syndrome, Instrument No 39 of 2006.  One of the factors in that SoP giving rise to a reasonable hypothesis connecting rotator cuff syndrome (or death from rotator cuff syndrome) with the circumstances of a person’s relevant service was the performing of repetitive or sustained activities affecting the shoulder when the shoulder is abducted or flexed by at least 60 degrees for at least 80 hours within a period of 120 consecutive days. 

9. Mr Greene submitted that the Tribunal should reject Dr Sood’s opinion on the grounds that he had not obtained a detailed history of the physical training Ms Holliss had undertaken.  Mr Greene said less weight should be placed on the opinion of Dr Gibberd who only had limited personal knowledge of the training required and did not consider this in reaching his opinion.  Mr Greene contended that the physical activities required by the army were far greater than those experienced in civilian life. 

10. Mr Greene submitted that the Tribunal should accept the opinion of Dr Upjohn in 2006 that Ms Holliss’s army physical activities had contributed over 50 per cent to the development of her symptoms.

11. Mr Wallace submitted that Ms Holliss’s complaint was one of recent invention. There were no medical entries regarding her shoulders or back from the time the army had waived her obligations to participate in physical training in 2003 and the recent complaints, which commenced in 2009.  In addition, Ms Holliss had failed to tell Dr Sood and Dr Gibberd about the extent of her physical activities in the 1990s.  Dr Sood had been specifically asked whether excessive use could lead to the mild changes in Ms Holliss’ shoulders and had said no.

12. Mr Wallace contended that no specialist had supported the proposition that the objective evidence available linked what was a mild condition to any aspects of Ms Holliss’s service.  Nor was there any evidence of measurable impairment. 

13. Mr Wallace submitted that the SoP invoked by Mr Greene was of no relevance as Ms Holliss’s claim was made under the SRC Act.  He said that all experts had indicated there was no treatment indicated for her shoulder condition.

14. Mr Wallace contended that Ms Holliss’ condition was similar to that considered by the Tribunal in Thi Hau Nguyen and Australia Post (2003) AATA 218, where the applicant experienced symptoms of some indeterminate ailment when she was working but her symptoms resolved with rest. Investigations of Ms Nguyen had failed to reveal any underlying significant pathological condition. Based on the evidence in this case, the Tribunal could not be satisfied that the applicant had suffered any injury as defined in the Act.

    RELEVANT LEGISLATION

15. The relevant Act is the Safety, Rehabilitation and Compensation Act 1988 (reprinted on 4 September 2006 with amendments up to Act No 30, 2006).  Section 4 of the Act defines the terms ailment, disease and injury  as follows:

    ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    disease means:

    (a)any ailment suffered by an employee; or

    (b)the aggravation of any such ailment;

    being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

    injury means:

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment; ...

    Section 14 of the Act provides for compensation for injuries and states:

    14Compensation for injuries

    (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.

    (2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.

    (3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

    TRIBUNAL’S DELIBERATIONS

16. In her claim form lodged on 26 June 2005, Ms Holliss identified her injury, disease or illness as [left] L shoulder, then back, then [right] R shoulder & LBP [lower back pain].  She attributed the onset of the first condition, the left shoulder pain, to the performance of teabags as part of her physical training course.  The medical records show that this left shoulder pain responded to physiotherapy over two months; although Ms Holliss maintains that the pain has continued to this day.  In 1997, when she resumed physical training, she developed pain in her right shoulder and mid-thoracic spine; and later in the lumbar spine.  The onset of this pain also occurred after various physical activities as part of her army service training.  She claims these symptoms have also persisted indefinitely; although the medical records do not support her claim. 

17. From approximately 2003 Ms Holliss was relieved of the requirement to participate in regular physical activities and training because of her bilateral chondromalacia patellae.  It was not until early 2009 that her right shoulder pain was brought to the attention of the army medical officers and further investigation instituted.  On 9 April 2009 ultrasound examination of both shoulders was conducted and was normal except for a finding of thickening of (what was incorrectly called) the subdeltoid bursa and was in fact the subacromial bursa on the right side and a mild thickening on the left side.  This bursal thickening was associated with mild impingement but marked bursal impingement on the right. 

18. Based on these findings, surgical intervention on the right side was recommended and Ms Holliss underwent a right shoulder arthroscopy on 27 July 2009.  The findings on the arthroscopy were described as normal, except for mild synovitus and surface sprain of the right supraspinatus tendon in the subacromial space.  An acromioplasty was performed.  This involved the resection of the anterolateral portion of the acromial process, in order to enlarge the subacromial space. 

19. This surgical procedure did not result in any benefit in terms of Ms Holliss’s level of should pain.  She had commenced using a walking stick because of her knee complaint in 2009; and she herself suggested this may have aggravated her shoulder symptoms.

20. An MRI examination of both Ms Holliss’s shoulders was performed on 29 January 2011 (Exhibit R6).  In summary, this showed mild subacromial outlet narrowing on the left due to mild prominence of the anteroinferior acromion but no definite indication of bursitis.  The right side showed post-surgical change.  There was evidence of subacromial bursitis on the right and minor features of rotator cuff tendinopathy bilaterally.  The radiologist commented on the downward sloping of the acromion, which resulted in subacromial narrowing.  This is said by some of the medical experts to be a developmental variant.

21. Ms Holliss’s back pain has been intermittent, predominately affecting the mid thoracic spine but also she has complained of pain in the lumbar region.  None of her treating doctors have found the symptoms sufficiently severe to perform any radiological investigation of her spine.  The results of various physical examinations have also been variable in terms of range of movement and local tenderness.  Ms Holliss has said that she takes analgesics up to twice a month for her pain.

22. Based on the objective medical evidence, the Tribunal determines that the condition from which Ms Holliss suffers is mild right subacromial bursitis and mild left-sided subacromial outlet narrowing of probable developmental origin.  As such, this condition is a disease as defined in the Act.   Therefore, the issue for the Tribunal to determine is whether this disease was contributed to in a material way by her employment in the army.

23. With regard to Ms Holliss’s back, no diagnosis has been proffered by any expert or treating doctor, other than that of repeated short-lived muscle strain, or  some evidence of myofibralgia.  In 2006 Dr Upjohn assessed Ms Holliss and described her diagnosis as left upper back pain.  This is not a diagnosis.  It is a description of her symptoms.  He attributed her back pain to her service in the army in terms of greater than 50 per cent causation and a greater than 50 per cent aggravation.  In the absence of a diagnosis, the Tribunal cannot assign any significant weight to this report.

24. Shortly after the lodgement of her claim Ms Holliss was assessed by Dr Gras, an occupational physician, and Dr Hofland, a consultant in rehabilitation medicine.  Neither doctor found any evidence of significant shoulder or spinal disease.  Dr Gras found there was no major underlying pathological process and he doubted there was any significant permanent pathological process affecting either shoulders or the upper back and neck. 

25. Dr Hofland was of the opinion that Ms Holliss’s shoulder pain and, upper and lower back pain was of muscular ligamentous origin; and possibly secondary to altered posture and gate due to her knee condition.  At that time, Ms Holliss’s spinal movement was in fact of a greater range than normal or what Dr Gras called hypermobility of the lumbar region. 

26. Further opinions have been obtained from Dr Sood and Dr Gibberd, orthopaedic surgeons, who saw Ms Holliss in 2010 and 2011.  While noting inconsistencies in some of the physical signs, in particular the range of movement of the right shoulder, both surgeons were of the same opinion: that Ms Holliss does not suffer from any organic pathology and has mild organic changes in her shoulders insufficient to explain the severity of her symptoms.  Both Dr Sood and Dr Gibberd are of the opinion that Ms Holliss’s back and shoulder condition had not been materially contributed to by her military service.  In addition, neither surgeon believed that Ms Holliss’s use of a walking stick because of her chondromalacia patellae contributed in any way to her back and shoulder symptoms. 

27. Based on the medical evidence, and in particular  the expert opinions of Doctors Grass, Hofland, Sood and Gibberd, the Tribunal finds that there is no causal or materially contributive relationship between Ms Holliss’s severe pain symptoms, her minor organic changes in her shoulders and her army service. 

28. The Tribunal affirms the decision under review.

I certify that the preceding 69 (sixty‑nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

[sgd]...................................................................

Administrative Assistant

Dated  14 June 2013

Dates of hearing	15 & 16 April 2013
Date final submissions received	18 April 2013
Advocate for the Applicant	Mr Roger Greene & Mr David John Fry, Greensborough RSL
Counsel for the Respondent	Mr John Wallace
Solicitor for the Respondent	Mr Michael La Vista, Australian Government Solicitor

ANNEXURE

·Applicant’s statutory declaration sworn on 28 September 2012 – Exhibit A1

·Surgeon’s Operational Report Surgeon Wallace dated 17 July 2009 – Exhibit A2

·Report of Dr Arthur Velakoulis (Consultant Psychiatrist) dated 2 September 2012 – Exhibit A3

·Clinical notes of Dr W Atkins (Psychiatrist) dated 24 August 2006 – Exhibit A4

·T-documents (section 37 document) – Exhibit R1

·Report of Dr Richard Gibberd (Consultant Orthopaedic Surgeon) dated 11 November 2010 – Exhibit R2

·Report of Dr Richard Gibberd (Consultant Orthopaedic Surgeon dated 14 October 2011 – Exhibit R3

·Report of Dr Aman Sood (Orthopaedic Surgeon) dated 7 March 2011 – Exhibit R4

·Report of Dr Aman Sood (Orthopaedic Surgeon) dated 25 October 2011 – Exhibit R5

·MRI report dated 29 January 2011 – Exhibit R6