Joaquim and Comcare
[2007] AATA 1250
•23 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1250
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos S 200500018 and
GENERAL ADMINISTRATIVE DIVISION ) S 200600331
Re JOSE JOAQUIM Applicant
And
COMCARE
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date23 April 2007
PlaceAdelaide
Decision 1. The tribunal affirms the decision under review made on 23 December 2005 to the effect that the injury to the applicant’s right shoulder was not the result of his ruptured biceps.
2. The tribunal sets aside the decision under review made on 18 September 2006 to the effect that the respondent was not liable for the injury to the applicant’s right shoulder, and in place of that decision, decides that the respondent is liable for the rotator cuff tendonitis and impingement syndrome of the applicant’s right shoulder.
3. The tribunal affirms the further decision under review made on 18 September 2006 that the respondent is not liable to pay compensation in respect of permanent impairment of the applicant’s right shoulder, on the grounds that the injury to the applicant’s right shoulder has not resulted at present in a permanent impairment.
4. The tribunal reserves the question of costs for further consideration.
D G Jarvis
(Signed)Deputy President
CATCHWORDS
WORKERS’ COMPENSATION - Commonwealth employees - applicant engaged in heavy repetitive manual work - rupture of biceps tendon - agreed assessment of permanent impairment resulting from ruptured biceps - applicant now suffering from rotator cuff tendonitis and impingement syndrome - subsequent claim for these rotator cuff conditions - x-ray revealed hooked acromion - applicant susceptible to injury from effects of heavy work - employment caused onset of degenerative rotator cuff conditions - rehabilitative treatment will not restore applicant to pre-injury condition - inquisitorial role of the tribunal - applicant has not undertaken all reasonable rehabilitative treatment - meaning of “reasonable rehabilitative treatment” - meaning of “contributed to in a material degree” - decision that rotator cuff conditions not the result of ruptured biceps affirmed - decision to reject alternative claim that rotator cuff conditions not contributed to in a material degree by applicant’s employment set aside - decision to reject claim for permanent impairment affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5, 14 and 24(2)(c)
Australian Postal Corporation v Burch (1998) 85 FCR 264
Benjamin v Repatriation Commission (2001) 70 ALD 622
Comcare v Canute (2005) 148 FCR 232
Comcare v Filla (2002) 115 FCR 163
Comcare v Sahu-Khan [2007] FCA 15
Commonwealth v Smith (1989) 18 ALD 224
Dragojlovic v Director-General of Social Security (1984) 1 FCR 301
Murray v Shillingsworth [2006] NSW CA 367
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42
Suters v Australian Postal Corporation (1992) 28 ALD 320
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Wiegand v Comcare Australia (2002) 72 ALD 795
Wiegand v Comcare Australia (No. 2) [2007] FCA 237
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
REASONS FOR DECISION
23 April 2007 Deputy President D G Jarvis 1. The applicant, Jose Joaquim, sustained an injury on 12 September 1996 at work, when he ruptured his right head of biceps tendon. His claim for compensation was accepted by Comcare, and in a consent decision dated 23 March 1999 this tribunal decided that Mr Joaquim has a permanent impairment of 10% in relation to his condition of “ruptured right biceps tendon” as a result of his injury.
2. On 7 May 2004, Mr Joaquim claimed compensation for further impairment of the right shoulder as a result of secondary effects from the ruptured biceps on the rotator cuff. Comcare determined that Mr Joaquim was not eligible for further compensation in respect of permanent impairment.
3. Mr Joaquim requested a reconsideration of that determination, and in a reviewable decision dated 23 December 2005, Comcare affirmed the determination, and decided that the conditions he was asserting, namely scapulothoracic asymmetry and right subacromial bursal impingement resulting in bursitis, were not the result of his ruptured biceps. Mr Joaquim applied to this tribunal for review of that reviewable decision in matter number S 200500018 (the “2005 proceedings”).
4. In a second claim lodged with Comcare in August 2006, Mr Joaquim claimed compensation for “mechanical dysfunction of right shoulder. Right subacromial bursitis. Shoulder locked – gleno humeral & scapulo-thoracic joints right shoulder tendonitis and impingement”. Mr Joaquim claimed that he was injured, or first noticed he was ill, between 1982 and 1996 as a result of his heavy work with the Australian National Railways Commission (exhibit R2, pages 86 – 100).
5. In a third claim, being a claim for permanent impairment dated 4 May 2006, Mr Joaquim also claimed compensation for permanent impairment in respect of his right shoulder condition (exhibit R2, T40, pages 105 – 106).
6. In a determination dated 18 September 2006, Comcare decided to reject the second claim and the third claim, on the grounds that Comcare was not liable for his right shoulder condition. Mr Joaquim requested reconsideration of that determination, and it was affirmed in a reviewable decision dated 3 October 2006 (exhibit R2, T49, pages 123 – 126).
7. Mr Joaquim then applied for review of the second reviewable decision of 3 October 2006 in matter number S 200600331 in this tribunal.
Issues Before the Tribunal
8. It is common ground that the issues before the tribunal are as follows.
(a)Whether Mr Joaquim suffers from a condition of his right shoulder (either as a result of the rupture of the biceps on 12 September 1996 or as a result of a degenerative disease of his right shoulder).
(b)If yes to (a), whether Mr Joaquim is suffering from an injury that is the result of the rupture to his biceps tendon on 12 September 1996, or as a result of some other injury, or whether the right shoulder condition is the result of a degenerative disease of his right shoulder that is not related to the rupture of his biceps tendon.
(c)If Mr Joaquim is suffering from a disease within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the “SRC Act”), was that disease contributed to in a material degree by his employment by the Australian National Railways.
(d)If the right shoulder condition is the result of the rupture of the biceps tendon, has it resulted in a permanent impairment, and if so, has there been an increase in the degree of impairment of the right shoulder of 10% or more.
(e)If the right shoulder condition has not been caused by the rupture of the biceps tendon, has it resulted in a permanent impairment, and if so, what is the degree of that permanent impairment.
(f)Has the right shoulder condition been contributed to by both the rupture of the biceps tendon and by a degenerative disease of the right shoulder, and if so, has the condition resulted in permanent impairment, and what is the degree of that permanent impairment.
Background Facts
9. The following background facts are based on the evidence of Mr Joaquim and other documentary material before me that was not in dispute.
10. Mr Joaquim is aged 48. He was born in East Timor, and migrated to Australia in approximately 1982, having finished his schooling in Portugal.
11. He commenced employment with Australian National Railways in 1982. After finishing the standardisation of the railway line to Port Pirie in 1982 he worked in the plant shop at Islington for about a year, and then became a fettler. His job entailed being a blocker, that is, a person who replaces brake blocks on railway wagons and carriages.
12. On 12 September 1996, when he was using a bar hammer in the course of his work as a blocker, he noticed a sudden pain in his right arm. He was examined later that day by Dr L S Bentley, a general practitioner at the Mile End Clinic, who diagnosed a rupture of the right long head of biceps tendon.
13. Mr Joaquim claimed compensation, and Comcare accepted liability. After being away from work for a while, he returned to light work, which entailed performing certain clerical work, getting out tools for other employees and doing some light cleaning.
14. Mr Joaquim continued on light duties until 2 November 1997, when he was retrenched as a result of the sale of the Railways. He unsuccessfully applied for employment with the purchaser. He later undertook further studies, including studying English, and is now in the second year of a social work degree.
15. He continued to experience discomfort or pain in his right shoulder after the rupture of the tendon on 12 September 1996. He was treated initially by Dr Bentley, and subsequently by other general practitioners from the Mile End Clinic, and he was also referred to a number of other doctors. I shall refer to his subsequent condition and to subsequent medical assessments and treatment later in these reasons.
16. As mentioned above, whilst Comcare accepted liability for Mr Joaquim’s claim for compensation in respect of the biceps rupture, and the parties agreed on an assessment of permanent impairment in respect of that injury, Mr Joaquim has made further claims for compensation which have been refused.
Legislation
17. Section 14(1) of the SRC Act provides for compensation for injuries, and provides as follows:
“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.”
18. Section 4(1) of the SRC Act includes definitions of the words “injury” and “disease”, which apply unless the contrary intention appears. These definitions are as follows:
“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;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
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.”
19. Section 24(1) imposes a liability on Comcare to pay compensation determined in accordance with the section, where an injury to an employee results in permanent impairment. Section 24(2) provides as follows:
“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.”
20. Under s 24(5), Comcare is required to determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide. In the present matter, that Guide is the first edition of the “Guide to the Assessment of the Degree of Permanent Impairment”, being a document prepared by Comcare pursuant to s 28 of the SRC Act.
Consideration
21. I will now consider the issues identified in paragraph 8 above, to the extent that they arise for determination.
Is Mr Joaquim suffering from a condition of his right shoulder?
22. After carefully reviewing the medical evidence before me, I find that Mr Joaquim has rotator cuff tendonitis and impingement syndrome of the right shoulder. That is the diagnosis made by Dr Andrew Saies in July 2003. He has practised as an orthopaedic surgeon specialising in hand and upper limb surgery since 1990.
23. Dr Saies’ diagnosis is consistent with the diagnosis of other doctors who have examined Mr Joaquim, and in particular with the diagnosis of Dr Colin Mills, an occupational physician whom Mr Joaquim first saw in June 1998 and who has treated him since then.
Is Mr Joaquim’s shoulder condition the result of the ruptured biceps or some other injury?
24. In the 2005 proceedings, Mr Joaquim asserts that his right shoulder condition is secondary to his ruptured biceps. He relies primarily on the various reports provided by Dr Colin Mills in support of this assertion. Some general practitioners from the Mile End Clinic whom Mr Joaquim consulted, and also two other doctors to whom he was referred, namely Doctors Spedding and Meegan, also referred to a causal relationship between an impingement syndrome in his right shoulder and his biceps rupture. However, none of those doctors were called, and on the information before me they did not have the specialist expertise or qualifications of the four doctors who were called.
25. The respondent called three specialists who disputed the asserted causal connection between the ruptured biceps and the applicant’s shoulder condition. They were Dr Andrew Saies, Associate Professor Robert Bauze, another orthopaedic surgeon, and Dr Mark Awerbuch, a rheumatologist. Those three specialists explained the function of the right biceps, and said that its function was related to the movement and the strength of the elbow, and it played little or no role in the functioning of the shoulder that was relevant to Mr Joaquim’s complaints. They further said that any effect on the shoulder of a ruptured head of biceps tendon would resolve completely within a comparatively short time: about 3 to 4 weeks according to Dr Awerbuch, and it would take about 6 to 12 weeks for the bursitis component to settle, according to Dr Saies.
26. On the state of the evidence before me, I am not satisfied that Mr Joaquim’s current shoulder condition is the result of the ruptured biceps. Dr Mills and the three doctors called by Comcare are very experienced in their respective specialties. However, in view of his long experience as a surgeon, I think that Dr Saies is in a better position than Dr Mills to express an opinion as to the anatomical function of the right head of biceps tendon, and both Dr Mills and Associate Professor Bauze acknowledged Dr Saies’ expertise in treating upper arm orthopaedic conditions. Indeed, Dr Mills referred Mr Joaquim to Dr Saies for assessment (exhibit R2, T18, page 31). Dr Awerbuch reported that he has made a search of medical texts and journals for research data connecting bursitis or rotator cuff impingement with biceps ruptures, and that he could find no evidence supporting such a relationship; on the contrary, he referred to two texts which suggest that a rupture of the long head of biceps causes no weakness or loss of shoulder movements (see exhibit R1, T55, at page 214 and exhibit R7, page 1). As against this, Dr Mills conceded that he could find no published data to suggest that the conditions of bursitis and rotator cuff impingement would result from a ruptured biceps tendon; and whilst he had predicted in his early reports that Mr Joaquim would develop conditions of the kind that have in fact occurred, he said that such a result had occurred in only two or three patients out of seven or eight whom he had previously treated for a ruptured biceps tendon in his many years in practice.
27. For the sake of completeness, I add that there is no evidence that Mr Joaquim’s condition has been caused by any other injury or trauma.
28. A further reason for my preferring the opinion as to this issue of the three specialists called by Comcare is that in the circumstances of the present matter, I consider that there is a more likely explanation for the development of Mr Joaquim’s shoulder condition, and that is that he is suffering from a degenerative condition of the right shoulder that was not caused by the rupture of his biceps tendon. I find that this is the position, for reasons to which I will now refer.
Is Mr Joaquim’s shoulder condition the result of a disease?
29. The definition in the SRC Act of disease, as opposed to an injury, entails a morbid condition of the body which may be idiopathic or autogenous, or initiated by some external cause, organ or part, illness, sickness or ailment that does not entail a sudden disturbance of the normal physiological state or an ascertainable lesion or dramatic physiological change (see Australian Postal Corporation v Burch (1998) 85 FCR 264 and Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310). A degenerative condition of the shoulder would constitute a disease rather than an injury. For such a condition to fall within the definition of “disease” in s 4(1) and so be potentially compensable, it must have been contributed to in a material degree by the employee’s employment.
30. In making my above findings that Mr Joaquim is suffering from a degenerative condition and as to its cause, I refer to the evidence as to the nature of the work that Mr Joaquim was doing, and to evidence from various sources as to the pain and disability that Mr Joaquim continued to experience in his right shoulder from and after the time of the rupture of the biceps, notwithstanding that the rupture of the biceps would, according to the evidence of Dr Saies and Dr Awerbuch, to which I have referred above, have become asymptomatic within a number of weeks of the rupture.
31. Mr Joaquim gave his evidence in a forthright way, and I accept that his evidence was truthful. I note that English is not his native language, and whilst there were a few instances where he appeared at first not to have understood questions asked of him, I am satisfied that those matters were clarified, and that he was able to give evidence and follow the proceedings without the aid of an interpreter.
32. Mr Joaquim gave a detailed description of the nature of the work he was doing with the Railways for about 14 years prior to the incident when he ruptured his tendon. His work of removing brake blocks from railway wagons and carriages entailed using a bar hammer to remove darts from the brake blocks, and then using the bar hammer again to hammer the darts into position when the brake blocks were replaced. Darts are metal wedges used to hold brake blocks in place. Sometimes they became very firmly wedged in, and it was necessary for Mr Joaquim to hammer the darts many times in order to remove them. Mr Joaquim remembered dealing with up to 300 brake blocks each day. The darts being hammered were about 30 centimetres above head height for Mr Joaquim. To remove the darts he would hit with an upwards thrusting motion using considerable force, holding the bar hammer in front of his chest. To hammer the darts into place he would have to hammer from a slightly higher position, hitting downwards. He estimated that the bar hammer was 3 to 4 kilograms in weight, and that the brake blocks weighed about 8 kilograms. On occasions he used a shorter bar hammer. When removing a brake block he would hold his left arm underneath the brake block ready to take its weight, and would use the bar hammer with his right arm. Mr Joaquim said that when he first started this work, he was part of a team of four employees, but one by one the other employees left the team, leaving him the sole person doing the work.
33. I find that Mr Joaquim was engaged in very heavy work that entailed repetitive use of the right arm and shoulder during the course of his day’s work, and that he had kept this up on a continuous basis for about 14 years by the time he suffered his ruptured biceps.
34. I now refer to Mr Joaquim’s evidence as to his symptoms. He said that before the event when his biceps was ruptured, his shoulder would ache on occasions at the end of a day’s work, and it would also click either during or after work. According to his witness statement (exhibit A1), since he ruptured his tendon in September 1996 he has had increasing pain in his right shoulder, with lack of movement. His statement records that he has difficulty in moving his right arm away from his body, difficulty with sleeping on his right side, and is always in some sort of pain which now sometimes radiates to his neck. He added he has to be careful when lifting, and his shoulder is less painful if he keeps his arm close to the body, but it is better not to raise his right arm above his shoulder (see exhibit A1, page 5).
35. In his oral evidence he said that he has difficulty in driving a car, and mostly his wife drives or he catches a bus. He says that when he does drive he has difficulty, and he does better if he keeps his right arm close to his body. He also said that he feels as if he has a heavy weight on his shoulder. He said that he is able to move his arm above his shoulder, but if he repeats this his shoulder gets worse.
36. Apart from the four specialists whose evidence I have already referred to a number of other doctors have examined Mr Joaquim over the years. The general consensus of the other doctors was that Mr Joaquim has a condition of the right shoulder that has resulted in pain and certain other symptoms in that shoulder. The evidence before me to that effect may be briefly summarised as follows.
(a)The section 37 documents in respect of the 2005 proceedings include medical certificates from seven different doctors from the Mile End Clinic relating to examinations of Mr Joaquim carried out on various dates between 9 October 1996 and 13 October 2004 (exhibit R1, T4, pages 16 – 70). Certificates were issued by Dr Bentley from 9 October 1996 until 12 January 2001, and he referred to the ruptured biceps. I note that after that date, other doctors from the Mile End Clinic referred not only to the ruptured biceps, but also to “rotator cuff injury” (exhibit R1, T4, page 47); “chronic pain & loss of function – secondary to R biceps tear” (exhibit R1, pages 48 – 55); and “chronic R shoulder pain & bursitis R shoulder” (exhibit R1, pages 59 and 60 and 62 – 65). Later certificates refer variously to chronic right shoulder pain or injury with secondary depression (exhibit R1, pages 66 – 70). It appears that Mr Joaquim was given anti-inflammatory medication, which provided limited relief.
(b)In a report dated 29 April 1997 Dr Simon Spedding advised Comcare (who had referred Mr Joaquim to him) that Mr Joaquim had significant weakness and pain around his rotator cuff muscles in his right shoulder which “would not be a normal sequelae of a simple biceps rupture” (exhibit R1, T16, page 95). He further reported that Mr Joaquim had
“abnormal movement of his shoulder due to hitching of his shoulder when lifting his arm, with internal rotation and depression of the humeral head in the glenoid. This indicates rotator cuff tendonitis with impingement syndrome, or cuff rupture”.
He arranged for an ultrasound to verify his diagnosis, which he summarised as “[r]uptured long head of biceps, impingement syndrome and rotator cuff tendonitis of the right shoulder” (exhibit R1, page 96). In a subsequent report dated 19 June 1997 Dr Spedding said that his diagnosis had been verified by an ultrasound which he had arranged.
(c)In between the two reports from Dr Spedding, Mr Lloyd S Coats, an orthopaedic surgeon, provided a report dated 22 May 1997 to Mr Joaquim’s solicitors. Mr Coats said that a rupture of the long head of biceps muscle is much more common at or after the age of 50 years, and is slightly more common in men who have undertaken long-term manual work, but it was a very uncommon occurrence for a person of the age of 37 (being Mr Joaquim’s age at the time of the rupture). Mr Coats was apparently asked to assess the degree of permanent disablement arising from the biceps rupture. He recorded that Mr Joaquim told him that he had found that he had normal arm movements; that if he used the arm to any degree there was pain in the region of the shoulder; that this pain was least when not exercising the arm and worse with activity; and that he had difficulty lifting the right arm completely upwards (see exhibit R1, page 114).
(d)Later in 1997, Comcare referred Mr Joaquim to Dr A D Meegan, a consultant occupational physician. In a report dated 16 December 1997, Dr Meegan assessed Mr Joaquim as having a ruptured right long head of biceps, with consequent loss of power of elbow flexion and forearm supination. He said that this had “also apparently resulted in exacerbation of pain and discomfort from a mild impingement syndrome in his right shoulder.” His report also recorded Mr Joaquim’s complaints of pain in the shoulder. His report on his examination included the following finding:
“Although a full range of all shoulder movement was apparent, there was some ‘catching’ during abduction of the externally rotated shoulder, indicating impingement as suggested by the ultrasound” (exhibit R1, T24, page 125)
(e)Mr Joaquim’s solicitors referred him to Dr Mills, in May 1998. In a report dated 23 June 1998 Dr Mills reported that Mr Joaquim had sustained a rupture of the long head of biceps, and continued:
“He has a history of pain in the right side of his neck and shoulder, difficulty lying on the shoulder at night and pain with prolonged above shoulder activity – symptoms very suggestive of evolving rotator cuff pathology which he is at risk of and there is visible asymmetry of scapulothoracic joint movement.” (exhibit R2, T8, page 17).
He diagnosed right long head of biceps tendon rupture and as a consequence secondary effects on the rotator cuff and right upper limb as a whole. Dr Mills repeated this diagnosis in subsequent reports, and said it was confirmed by Mr Joaquim’s favourable response to an ultrasound guided injection of anaesthetic and steroid medication into the right subdeltoid bursa, which he had arranged, and which occurred on 9 April 2003.
(f)In a letter of 19 March 2003 Dr Edward Fong from the Mile End Clinic requested Dr Mills’ advice on further treatment. In his letter he referred to Mr Joaquim suffering from a chronic shoulder injury, with recent ultrasound evidence of bursitis and a possible partial tear of the supraspinitis tendon. He also referred to loss of movement and pain.
(g)Dr Saies first saw Mr Joaquim in July 2003 at the request of Dr Mills. He diagnosed rotator cuff tendonitis and impingement syndrome. (He also thought that these conditions were unrelated to his work injury, and I will refer to this aspect of Dr Saies’ opinion below).
(h)In July 2004 Comcare requested Dr Awerbuch to examine Mr Joaquim in order to assess the degree of permanent impairment suffered by him as a result of his ruptured biceps injury on 12 September 1996, and to comment on a non-economic questionnaire completed by Mr Joaquim on the effect that the impairment had had on his lifestyle. Dr Awerbuch provided a report dated 29 July 2004 in relation to those issues. Whilst his report focused on the effects of the biceps rupture, and in particular on the range of movement, he obtained a history of the symptoms which Mr Joaquim was then experiencing, and that history was similar to the history of symptoms described in earlier reports and by Mr Joaquim in his evidence.
(i)Finally, Associate Professor Bauze saw Mr Joaquim at the request of Comcare’s solicitors in April 2005. He found significantly reduced movements of the right shoulder (which he did not consider to be genuine) and a “very minor degree” of subacromial bursitis, but he did not consider that there was any impingement (exhibit R2, T24, page 47). Once again, the history he took of Mr Joaquim’s complaints was consistent with the history he had previously given to other doctors.
37. Mr Malcolm Wicks, an orthopaedic surgeon, has also examined Mr Joaquim, and Comcare relies on his opinion in contesting liability. Mr Wicks first saw Mr Joaquim on 16 September 1996, which was only four days after the rupture of the biceps. He did so on referral from Dr Bentley. Mr Wicks confirmed Dr Bentley’s diagnosis of a ruptured long head of biceps. According to his letter back to Dr Bentley, Mr Wicks discussed with Mr Joaquim whether he wished to attempt to have the tendon re-attached to the humerus as a “relatively urgent procedure”, but said that Mr Joaquim after discussion with his family had decided to treat his injury conservatively, understanding that he would be left with some weakness to his arm when lifting (see exhibit R2, T4, page 8). Mr Wicks reported in more detail on this examination in a letter dated 3 June 1997 to Dr Spedding (see exhibit R1, T18, page 99). In that report, Mr Wicks expressed the opinion that because of pre-existing symptoms Mr Joaquim’s ruptured biceps was most probably due to a pre-existing condition of wearing under the coraco-acromial arch would weaken the biceps, and he considered that the incident at work had caused the final rupture. He also said:
“I believe that he will have further problems with his shoulder because of the wearing under the coraco-acromial arch and at some stage will need a subacromial decompression to increase the space between the rotator cuff and the coraco-acromial arch. Otherwise he will continue to have wearing of the rotator cuff and that will become degenerate and may tear later.” (exhibit R1, T18, page 101)
38. Mr Wicks saw Mr Joaquim again, and wrote to Dr Bentley on 9 July 1997 (exhibit R2, T6, page 10). Mr Wicks then recorded that Mr Joaquim had some aching in the shoulder, but found no grating or grinding or catching, and that he had a full range of movement. He recommended physiotherapy to build up the strength of external rotation, and said that if any symptoms of impingement recurred then he should have a decompression.
39. Mr Wicks sent a further letter to Dr Bentley a little over a month later, on 15 August 2001, which referred to his previous report outlining his opinion, and confirmed that Mr Joaquim did not need any procedure (see exhibit R2, T7, page 11).
40. It is not clear from T6 and T7 whether they both relate to one subsequent occasion, presumably on or about 9 July 1997 when Mr Wicks re-examined Mr Joaquim, or whether there was another examination prior to each of those letters. Neither letter refers to the date of the examination(s) by Mr Wicks. Mr Wicks’ finding is inconsistent with that of Dr Spedding and Dr Meegan, who also examined Mr Joaquim in 1997, but to the extent that the letter of 9 July 1997 records that Mr Joaquim gave a history of some aching in the shoulder, the report is consistent with some continuing symptomatology in the right shoulder (which according to Dr Saies and Dr Awerbuch would not be the result of the ruptured biceps).
41. Mr Wicks saw Mr Joaquim again on 23 July 2001 on referral from another doctor from the Mile End Clinic. Mr Wicks responded with a pre-emptory letter reading as follows:
“I am afraid I cannot help this fellow. He had a ruptured biceps 4 years ago and chose not to have the remnant removed. I cannot find anything wrong with his shoulder today. I believe this is just to promote his WorkCover certificate and I am not prepared to be involved. He had slight stiffness of neck muscles only. This is more a medico-legal problem than a medical.” (exhibit R2, T12, page 24)
42. The referral letter had said that Mr Joaquim was considering his options regarding further treatment, and requested Mr Wicks to review and treat as appropriate. Mr Wicks’ letter does not record the history (if any) that he obtained from Mr Joaquim. It seems likely that he was focussing on whether it was then appropriate for Mr Joaquim to undergo any form of surgical treatment, and he might have been referring to the fact that it was then too late to treat the ruptured tendon. Mr Wicks was not called as a witness. Whilst I have noted his findings as recorded in his various reports and letters, they must be read in the context of the referral letters to him. They must also be read against the evidence from witnesses who were called to explain their medical reports and who were subjected to cross-examination, and also against the other information and records relevant to the issues that arise for determination in relation to Mr Joaquim’s current condition. To the extent that Mr Wicks anticipated further problems with the shoulder his report is consistent with Dr Mills’ opinion, but in all of the circumstances, I attach little weight to Mr Wicks’ reports and letters for the purpose of deciding the issues before me.
Was the degenerative condition of the shoulder contributed to in a material degree by Mr Joaquim’s employment?
43. There are inconsistent decisions of the Federal Court as to the causal connection that is required between employment and a disease in order for a disease to be compensable under the SRC Act. In two cases decided by single Judges, namely Suters v Australian Postal Corporation (1992) 28 ALD 320 and Wiegand v Comcare Australia (2002) 72 ALD 795, the Court applied the approach adopted in an earlier case, namely Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, which had been decided under the predecessor of the SRC Act. In Treloar a Full Court of the Federal Court said in effect that the use of the word “material” in other cases in conjunction with the words “contributing factor” (being the expression used in the predecessor legislation) in explaining the relevant section was merely to emphasise that the section was not brought into play unless it was established that the employment did in fact contribute to the condition complained of; and once the causal link was established, it did not matter whether the contribution was large or small. However, in dicta in a much later Full Court decision, namely Comcare v Canute (2005) 148 FCR 232, French and Stone JJ, who constituted the majority in the Full Court, said in effect that the word “material” in the test of causation in the definition of “disease” in the SRC Act required that the contribution from employment had to be more than a mere contributing factor. The High Court allowed an appeal from the Full Federal Court, but the High Court did not comment on the dicta as to the relevance of the words “to a material degree” in the context of the definition of disease. The views of French and Stone JJ as to this aspect were later adopted by Finn J in Comcare v Sahu-Khan [2007] FCA 15 and Wiegand v Comcare Australia (No. 2) [2007] FCA 237.
44. The judgments in the earlier cases of Suters and Wiegand did not refer to the legislative history of the definition of “disease” in the SRC Act. However, that history was referred to in detail in Canute and in Sahu-Khan. In Canute the majority said:
“On this basis, the observations of the Full Court in Treloar at 323 that the relevant causal connection must be established on the balance of probabilities and not left in the area of possibility of conjecture are not controversial. Equally, it is plain that the present legislation was not intended to require that an employee demonstrate that their employment caused the disease or that it was the most important factor. It would also appear that the imposition of a ‘but for’ test remains inappropriate. Having said this, the changes brought about by the enactment of the SRC Act were intended to require that the contribution be ‘more than a mere contributing factor’ and, as such, the comments of the Court in Treloar must be assessed in this light. Content must be given to the word ‘material’ contained in the definition of ‘disease’ in the legislation as it presently stands. The inclusion of this term imposes an evaluative threshold below which a causal connection may be disregarded. However, it is not necessary for present purposes to consider the proper meaning of ‘material’ and nothing more need to (sic) said about this issue.” (emphasis added)
45. After referring to earlier authorities, including Canute, Finn J said in Sahu-Khan:
“15. There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word “material” in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word “materially” in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
4. In a material degree; substantially, considerably.
An example given of this usage is that of contributing “materially to the funds required” for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the “loose sense” of the definition of “material” in the Macquarie dictionary “namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’”.
16. Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” 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 (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.”
46. I propose to adopt the approach of Finn J in determining in the present matter whether Mr Joaquim’s degenerative condition of the shoulder was contributed to in a material degree by his employment, since that approach seems with respect to entail the correct construction of the SRC Act, having regard to the legislative history and purpose of the definition of “disease” in that Act.
47. It is also relevant to observe that the definition uses the words “contributed to”. In Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 42 President Davies J said in effect that the applicant’s employment was not required to be the real, proximate or effective cause of the disease or of its development. He added (at page 43):
“In a case where a number of separate factors contribute to the contraction of a disease or its acceleration, aggravation or recurrence, all that is required is that one such factor exhibits the necessary connection with the worker’s employment.”
48. Although his Honour was referring to the predecessor legislation of the SRC Act, which did not refer to contribution “to a material degree”, I think that his Honour’s comments are appropriate to the current definition of “disease” provided of course that the higher evaluative threshold of the causal connection exists.
49. In a recent decision of the New South Wales Court of Appeal, namely Murray v Shillingsworth [2006] NSW CA 367, the Court considered the expression “substantial contributing factor” in s 9A of the Workers Compensation Act 1987 (NSW). Einstein J, with whom Hodgson and Santou JJA agreed, extracted a number of propositions from an earlier judgment of the New South Wales Court of Appeal, and these included the propositions that:
·the word “substantial” is used in a relative sense, and recognising that other causative factors may be present; and
·section 9A does not require that the employment must be “the” substantial contributing cause, nor does it attempt to exclude predisposition or susceptibility to a particular condition.
Of course, s 9A uses different terminology than the definition of “disease” in the SRC Act, and the Court’s interpretation was based on the particular provisions of the NSW Act, but I think that the propositions to which I have referred above apply equally to the definition of “disease” now under consideration.
50. Counsel for Comcare, Mr Cole, submitted that Mr Joaquim’s shoulder condition was not contributed to by his employment, or alternatively, that his employment did not contribute to a material degree to his condition. He submitted that the evidence suggests that Mr Joaquim had some mild symptoms for a period after the rupture of the biceps, and that these symptoms remained minor or resolved, but then there was a significant deterioration early in 2003; and as this was so long after he had ceased employment, it was unlikely that his condition then or at present was the result of his employment.
51. The opinions expressed by Dr Saies and Dr Awerbuch support that submission. However, Dr Mills considered that Mr Joaquim’s employment with the Railways did contribute to his present condition, and whilst he thought it difficult to assess the various causes of his present condition, he thought that there were three matters that were equally responsible for his condition. These were the rupture of his biceps, the wear and tear caused by his work with the Railways, and the shape of his acromion.
52. Dr Saies regarded the last cause referred to by Dr Mills as the major cause of Mr Joaquim’s rotator cuff condition. In his letter to Dr Mills dated 16 July 2003 (exhibit R5) following his examination of Mr Joaquim on that date, Dr Saies said that x-rays had revealed a hooked or type 3 acromion, and that it was this and not his ruptured biceps that had caused his symptoms. In his evidence Dr Saies explained that the hooked acromion reduces the blood supply to the soft tissue of the shoulder joint, thus giving rise to degeneration of the rotator cuff. Dr Mills himself had recorded in his report of 31 March 2003 to Dr Fong that x-rays had revealed a “prominent anterior acromion often associated with impingement”, but Dr Mills clearly did not at that time regard that anatomical feature as the cause of the bursitis and dysfunctional shoulder that he then diagnosed.
53. I do not accept the submissions of counsel outlined in paragraph 50 above. I prefer the evidence of Dr Mills as to the causes of Mr Joaquim’s present condition and their relative degrees of importance to that of Dr Saies and Dr Awerbuch, whose opinions as to those matters I find unconvincing. My reasons for this are as follows.
(a)Dr Saies and Dr Awerbuch each saw Mr Joaquim on only one occasion, on 16 July 2003 and 26 July 2004 respectively. Neither Dr Awerbuch nor Dr Saies had the advantage of Dr Mills of having examined Mr Joaquim at different intervals over the years since the rupture of the biceps.
(b)In expressing his opinion in the letter and the report he provided prior to the hearing, Dr Saies assumed (based on the information he then had) that symptoms and signs consistent with his diagnosis of rotator cuff tendonitis and impingement syndrome had only been present since about January of 2003. He concluded that they were unrelated to any work activity, as Mr Joaquim had not worked since 1997. There was no evidence of any new trauma or event which produced an increase in symptoms early in 2003, as Dr Saies had assumed. Indeed, that assumption was inconsistent with the certificates issued by doctors from the Mile End Clinic, who had consistently referred to chronic pain and loss of function for a long interval prior to early 2003. It appears likely that the symptoms had reached a point where it was thought necessary to seek further specialist advice by about that time, but it was not correct that symptoms had only been present since January 2003, as Dr Saies had said in his letter to Dr Mills of 16 July 2003 and in his report to Comcare’s solicitors of 22 September 2005.
(c)When Dr Saies, in his letter of 16 July 2003, reported his diagnosis and his opinion that Mr Joaquim’s condition was unrelated to any work activity, he did not refer to the nature of the work in which Mr Joaquim had been engaged, or its duration. Dr Saies appears to have focused on the specific question of whether the biceps rupture had caused the conditions from which Mr Joaquim was then suffering.
(d)Dr Saies acknowledged in his later report of 22 September 2005 that other contributory factors to the onset of the tendonitis included “age, use and wear and tear” (exhibit R2, T33, page 68). I have found above that Mr Joaquim’s work was in fact very heavy work that entailed repetitive use of the right arm and shoulder during the course of his day’s work, and he had kept up this work on a continuous basis for about 14 years by the time he suffered a ruptured biceps. Dr Saies does not appear to have taken this into account, or sufficiently into account, in his original letter or his later report, and he seemed reluctant to accept the potential relevance of those matters when they were put to him in cross-examination. The significance of these matters was appreciated not only by Dr Mills, but also by Associate Professor Bauze, who whilst hesitant to express a concluded opinion in the absence of knowing more about Mr Joaquim’s earlier symptomatology and the nature of his work, did acknowledge the potential significance of heavy repetitive work, especially if this had been carried out over many years.
(e)It is also significant that Mr Joaquim’s symptomatology developed at a comparatively young age. Mr Coats said that the rupture of the biceps in a person aged 37 years would be a very uncommon occurrence. The relevance of age in the context of rotator cuff tears is also referred to in a study referred to by Dr Awerbuch in exhibit R7, where it was found that in patients without shoulder pain they are found in only 4% of individuals less than 40 years of age and in more than 50% of individuals over 60 years of age.
(f)Dr Saies said in his evidence that the typical pattern of progressive rotator cuff disease and of type 3 hooked acromion is that there is a slow deterioration of function of the shoulder over a period of time. This appears to have been the pattern of Mr Joaquim’s symptoms, that is, he had increasing pain and limitation of movement over the years since the rupture of the biceps in 1996.
(g)As to Dr Awerbuch, his conclusion that Mr Joaquim’s shoulder condition was not work related was clearly affected by his assumption that the loss of shoulder movement was a very recent development, having developed since an examination by Dr Mills in March 2004 and the examination by him only four and a half months later (see exhibit R1, T55, at page 215). However, it is apparent that Dr Mills assessed the passive range of movement of the shoulder, whereas Dr Awerbuch had tested the active range of movement, and that explains what would otherwise have been a significant and recent change.
(h)As appears to have been the case with Dr Saies, Dr Awerbuch had in his earlier report been focussing on the possible relationship between the ruptured biceps and Mr Joaquim’s shoulder condition a number of years later. It was in that context that he had concluded that the condition was not work related. He also discounted (but with some ambivalence) the relevance of ultrasound findings, and this was inconsistent with the approach in assessments made by other doctors of Mr Joaquim’s condition, whose views I prefer as to this aspect.
54. I do not accept Associate Professor Bauze’s assessment that Mr Joaquim’s presentation at the time of his examination was largely spurious, and I found his explanation in cross-examination for this assessment to be unconvincing. Dr Awerbuch also doubted the value of reports of ultrasounds that had been carried out over the years of Mr Joaquim’s shoulder. His doubt in this regard was disputed by Dr Neil Simmons, whom the applicant called. Dr Simmons is a specialist radiologist. He had carried out an ultrasound of Mr Joaquim’s right shoulder on 13 September 1996, and on 9 August 2003 carried out an intrabursal injection under ultrasound guidance. He has extensive experience in conducting ultrasounds. His evidence as to his pre-eminence in his profession was not challenged, and I accept it. Whilst he acknowledged that the value of ultrasounds depended on the skill of the sonographer and the radiologist, he nevertheless clearly regards ultrasounds as helpful in assessing the pathology of shoulder symptoms. He reported that Mr Joaquim’s response to the ultrasound guided injection was positive. When his attention was directed to Dr Simmons’ report, Associate Professor Bauze acknowledged that Mr Joaquim’s response was consistent with his suffering from subacromial bursitis at that time.
55. The employer must take the employee as it finds him, with all his then existing disabilities or susceptibilities: Commonwealth v Smith (1989) 18 ALD 224 at 226. Having regard to the evidence of Mr Joaquim and all of the medical evidence before me, I consider that the most likely explanation for Mr Joaquim’s present condition is that it was caused by a combination of his repetitive heavy work over many years with the Railways and his hooked acromion, in that this made him more susceptible to shoulder problems than would have been the case if his acromion had been normal. I find that Mr Joaquim’s employment caused the onset of his degenerative condition. I further find that the existence of the hooked acromion meant that the heavy work in which Mr Joaquim was engaged would have had a more significant effect on his shoulder than would have been the case if his acromion had been normal.
56. It is likely that the degenerative condition would have developed in any event at some stage, because of his hooked acromion. However, I find that it is speculative to suggest that, in the absence of his heavy work over many years with the Railways, the onset of this condition would have occurred by the time when he ceased his heavy manual work with the Railways, or (as Dr Saies said) that it would have produced the level of incapacity or impairment that now exists. I reject that aspect of the evidence of Dr Saies. I am satisfied that Mr Joaquim’s present conditions of tendonitis of the bursa and impingement of the shoulder was contributed to in a material degree by his employment with the Railways.
Has the right shoulder condition resulted in permanent impairment?
57. Under s 24(2)(c) of the SRC Act, it is necessary for the purpose of determining whether an impairment is permanent to have regard to whether the employee has undertaken all reasonable rehabilitative treatment for the impairment.
58. In Comcare v Filla (2002) 115 FCR 163, the Full Court of the Federal Court said in effect that the question to be determined under s 24(2)(c) is not whether a worker’s refusal to undergo treatment was reasonable or not, but rather what, if any, reasonable rehabilitative treatment exists and whether (assuming that some reasonable rehabilitative treatment does exist for the particular impairment whose permanence is under consideration) the employee has undertaken all of it (see [7] and [8]).
59. Counsel for Mr Joaquim, Mr Austin, objected to the respondent raising the issue of whether Mr Joaquim had undergone reasonable rehabilitative treatment, and said that the respondent had not raised this issue in its Statement of Facts, Issues and Contentions or in any other pre-hearing communications. However, this matter clearly emerged as an issue from the evidence adduced at the hearing. In those circumstances I ruled that the issue could properly be raised, having regard to the tribunal’s inquisitorial role in arriving at the correct or preferable decision, as explained in such cases as Benjamin v Repatriation Commission (2001) 70 ALD 622 at [47].
60. In his final address, Mr Austin contended that the evidence as to the available treatment did not indicate that with treatment of the rotator cuff, Mr Joaquim would be restored to his pre-injury condition. I do not consider that the expression “all reasonable rehabilitative treatment” should be interpreted so as to apply only to treatment that will restore the employee to his or her pre-injury condition. The purpose of s 24 is to enable the decision-maker to assess the degree of permanent impairment resulting from an injury, and compensation is payable according to the degree of permanent impairment determined. If reasonable treatment is available that will reduce the degree of impairment that an employee is suffering, then having regard to the purpose of s 24 of the SRC Act, it will be inappropriate to confine s 24(2)(c) to situations where the reasonable rehabilitative treatment will restore the employee to the pre-injury condition. I therefore do not accept counsel’s above contention. The contention is also inconsistent with certain of the dictionary meanings relied on by Smithers J in Dragojlovic v Director-General of Social Security (1984) 1 FCR 301 at 307 – 308 for his conclusion that treatment would include major surgery as well as treatment of a conservative kind. His Honour said at page 308 that the expression there under consideration, namely “suitable treatment for physical rehabilitation”, would include “any treatment designed to restore a person, as far as it can be, to his former health” (emphasis added).
61. Dr Awerbuch and Associate Professor Bauze thought that Mr Joaquim’s condition might be assisted by further ultrasound guided injections into the bursa. This procedure afforded some relief to Mr Joaquim when it was performed by Dr Mills in 2003. Dr Awerbuch suggested that an increased dose of medication in conjunction with more than one further injection might lead to a substantial improvement.
62. If this suggested treatment is adopted but is not successful, then surgery would be available. Dr Saies said that an arthroscopy could be carried out under a general anaesthetic, and the hook-shaped acromion could be shaved away, thus in effect enlarging the space in which the tendon can move. He said that about 85 per cent of patients get good to excellent pain relief and what he would describe as good function. He said:
“That is they will be pain free and good strength and function around the bench height-floor to bench height level. Perhaps some slightly more difficulty working from bench to shoulder but we don’t quote or predict the outcome of function at or above shoulder height on a repetitive or high demand basis. In other words there may be some permanent disability related to the ability to perform that aspect. But, as a pain relieving operation it is very efficacious in 85 to 90 per cent of patients.” (transcript 28 March 2007, page 13, line 42).
He added that that surgery could be undertaken in Mr Joaquim’s case, and that it would be done to alleviate his symptoms and to improve the function of the right shoulder. He then referred to possible downsides of surgery which would not be permanent but could add to recovery time.
63. In cross-examination, Dr Saies said that there were fairly predictable outcomes in relation to the below shoulder height function, although the above shoulder height function was dependent on a number of factors; the first was the likelihood that his shoulder was now in a worse condition than it had been when he saw him four years earlier and secondly the success of the surgery was related to the patient’s ability to rehabilitate the shoulder. His evidence to this effect was followed by the following question and answer:
“And as you say, if the expectation is now that four years down the track his shoulder has worsened that would make the – be more pessimistic about achieving it?---Not from pain relief but from the functional expectations, yes.” (transcript, 28 March 2007, page 14, line 41)
64. I am satisfied that reasonable rehabilitative treatment is available to Mr Joaquim, either in the form of a course of injections, or if this does not produce a lasting improvement, in the form of the surgery described by Dr Saies. Mr Joaquim has not undertaken any such further treatment. I therefore find that the employment-caused degenerative disease has resulted at present in a permanent impairment, and accordingly Mr Joaquim is not entitled to compensation under s 24 of the SRC Act.
65. This finding makes it unnecessary for me to determine the competing contentions of the parties as to the assessment of the degree of permanent impairment resulting from Mr Joaquim’s present condition having regard to the assessment of permanent impairment resulting from the ruptured biceps, which was previously agreed between the parties at 10%.
Decision
66. The tribunal’s decision is as follows:
(a) the tribunal affirms the decision under review made on 23 December 2005 to the effect that the injury to the applicant’s right shoulder was not the result of his ruptured biceps;
(b) the tribunal sets aside the decision under review made on 18 September 2006 to the effect that the respondent was not liable for the injury to the applicant’s right shoulder, and in place of that decision, decides that the respondent is liable for the rotator cuff tendonitis and impingement syndrome of the applicant’s right shoulder;
(c) the tribunal affirms the further decision under review made on 18 September 2006 that the respondent is not liable to pay compensation in respect of permanent impairment of the applicant’s right shoulder, on the grounds that the injury to the applicant’s right shoulder has not resulted at present in a permanent impairment; and
(d) the tribunal reserves the question of costs for further consideration.
I certify that the 66 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G JarvisSigned: .....................................................................................
L. Wunderer AssociateDate/s of Hearing 26, 27, 28 and 29 March 2007
Date of Decision 23 April 2007
Counsel for the Applicant Mr B Austin
Solicitor for the Applicant Mr T F Owen
Counsel for the Respondent Mr S Cole
Solicitor for the Respondent Sparke Helmore
0
15
0