JOHN PATRICK ETTRIDGE and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2010] AATA 415

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 415

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2283

VETERANS' APPEALS DIVISION		)
Re		JOHN PATRICK ETTRIDGE

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Senior Member K Bean
Dr E T Eriksen (Member)

Date7 June 2010

PlaceAdelaide

Decision

The Tribunal:
(a) varies the reviewable decision of 6 May 2009 so as to add the following:
(i)  the applicant has no current entitlement to compensation in relation to the compensable injury suffered by him on 5 March 1966; and
(ii) in relation to the condition first suffered by the applicant in September 2008, being the condition of “left rotator cuff tear with adhesive capsulitis”, the respondent has no liability for that condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988; and

(b) otherwise affirms the reviewable decision.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

COMPENSATION – military compensation – current condition not related to compensable injury or military service – no liability – decision under review varied but substantively affirmed

PRACTICE AND PROCEDURE – estoppel – whether estoppel created by initial acceptance of liability – no inconsistency between initial acceptance of liability and respondent’s current position – no estoppel

Administrative Appeals Tribunal Act 1975 s 45
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 7, 14, 16 19, 62, 118, 124
Commonwealth Employees’ Compensation Act 1930 s 20(1)

Compensation (Commonwealth Government Employees) Act 1971 ss 20(4)(a), 107

Huysse v Snowy Mountains Hydro-Electric Authority (1975) 24 FLR 418
Re Susan Maree Cooper and Commonwealth of Australia (1988) 9 AAR 542
Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 503
Re Jebb and Repatriation Commission [2005] AATA 470
Liccione v Workers’ Rehabilitation and Compensation Corporation (1994) SASC 4368
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
Formosa v Department of Social Security (1988) 15 ALD 657
The Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 GLR 353
Abrahams v Comcare (2006) 93 ALD 147

Re Filsell and Comcare (2009) 109 ALD 198

REASONS FOR DECISION

7 June 2010   Senior Member K Bean
  Dr E T Eriksen (Member)  

1.      Mr John Ettridge (the applicant) served as a national serviceman in the Australian Army from 1 July 1965 until 30 June 1967.  Unfortunately, during that service he was involved in motor vehicle accident whilst travelling from work on 5 March 1966.  He sustained significant injuries to both shoulders in the accident, for which liability to pay compensation was accepted by the Commonwealth.  In the event, no monetary compensation was actually paid to him at that time since, while he remained a serviceman, his medical expenses and full wages were paid by the Army and he had largely recovered from the injury by the time of his discharge.

2.      However, in September 2008, Mr Ettridge experienced further significant symptoms in his left shoulder. 

3.      On 26 October 2008, Mr Ettridge wrote to the respondent seeking compensation for this condition on the basis that it was a sequelae of his accepted compensable condition.  By determination dated 22 January 2009[1], the respondent determined that liability would not be extended to include or pay compensation for his current shoulder condition, which the respondent determined was a different condition from that for which liability had been accepted.  The respondent also later determined that Mr Ettridge was not entitled to receive incapacity payments for the claimed condition. 

[1] T61

4.      Mr Ettridge sought reconsideration of the determination dated 22 January 2009 and in a reconsideration decision dated 6 May 2009[2] that determination, which disallowed what was construed by the respondent as a request for “extension of liability”, was affirmed.

[2] T79

5.      On 25 May 2009, Mr Ettridge lodged an application for review of the reconsideration decision by this Tribunal, giving rise to these proceedings.

the estoppel issue

6. At the hearing, Mr Ettridge submitted that there was in fact no need for the Tribunal to consider the “merits” of his application, as the respondent and the Tribunal were bound by an “estoppel” which prevented further consideration being given to the question of liability for his claim. At one stage during the hearing, Mr Ettridge also requested that this question, of whether there was an estoppel operating in his favour (and the question of the operation of the doctrines of estoppel and res judicata generally in relation to the Tribunal), be referred to the Full Federal Court pursuant to s 45 of the Administrative Appeals Tribunal Act 1975.  However, he later withdrew that request and indicated that he was content for the Tribunal to rule upon this question as part of its deliberations, on the basis that if he was not prepared to accept the Tribunal’s decision, he would have the right to challenge the decision of the Tribunal, on a question of law, in the Federal Court.  He also indicated that he was willing to accept that the Tribunal would consider all of the issues before it, and, if it decided adversely to him in relation to the estoppel question, would proceed in the context of his application to consider the “merits” of the substantive application, and the hearing proceeded on that basis.

7.      Consistently with the approach foreshadowed at the hearing, we propose to consider the question of whether there is an estoppel operating in Mr Ettridge’s favour, and the nature and effect of any estoppel which does operate, before proceeding to consider the “merits” of his application. 

contentions on the estoppel issue

8.      In support of his estoppel argument, Mr Ettridge relied heavily on the terms of the initial acceptance of liability for his claim.  He pointed out that the initial determination of liability for his claim, issued in April 1967, stated as follows:

“The said John Patrick ETTRIDGE sustained personal injury by accident while travelling from work on 5th March, 1966, namely ‘injured shoulders’.” [3]

[3] T23, p 34

9.      Mr Ettridge argued, in effect, that the respondent was permanently bound by its acceptance of liability in those terms, such that it was not open to the respondent to later seek to narrow the scope of its liability such as he alleged had occurred in his case.  He pointed to the respondent’s more recent determinations, in particular the reviewable decision of 6 May 2009, which affirmed an earlier determination disallowing his request for the extension of liability to include “rheumatism” and “partial tear to the anterior supraspinatus tendon”[4].  He argued that it was impermissible for the respondent to adopt that position having regard to its earlier determination.  Because it had initially accepted liability for his “injured shoulders” it remained liable to pay compensation for any condition affecting either shoulder. 

[4] T79, p 217

10.     In support of these arguments, Mr Ettridge relied upon a number of authorities, including Huysse v Snowy Mountains Hydro-Electric Authority (1975) 24 FLR 418, ReSusan Maree Cooper and Commonwealth of Australia (1988) 9 AAR 542, Re Rana and Military Rehabilitation and Compensation Commission [2008] AATA 558, Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 503, Re Jebb and Repatriation Commission [2005] AATA 470 and Liccione v Workers’ Rehabilitation and Compensation Corporation (1994) SASC 4368.

11.     In reply, Mr Wallace for the respondent submitted that the applicant’s argument based on estoppel was misconceived.  He submitted that it was well established on the authorities that the currently applicable Act, being the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), contemplated an evolving process of decision-making and it was entirely permissible for the respondent to consider, in respect of any subsequent claim for entitlements under the SRC Act, whether the applicant’s current condition was in fact a result of the compensable injury. In this regard, the respondent relied upon the decisions of the Full Federal Court in Telstra Corporation Limited v Hannaford [2006] FCAFC 87, and Formosa v Department of Social Security (1988) 15 ALD 657.

12.     Mr Wallace conceded that the Act which applied at the time of the initial determination, the Commonwealth Employees’ Compensation Act 1930 (the 1930 Act), contained no overall right by an employee to seek reconsideration of a determination or the relevant delegate to reconsider a determination.  Any such determination could only be challenged by an appeal to a “County Court” either by the employee or employer[5].  However, Mr Wallace submitted that this position was altered by the enactment of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act), which allowed for a determination to be reconsidered by the Commissioner of the Commissioner’s own motion or at the request of an employee[6].  Mr Wallace pointed to s 107 of the 1971 Act (which had the effect of deeming determinations under the 1930 Act to be determinations under the 1971 Act) and also relied upon the decision in The Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 GLR 353 for the proposition that, in this context, it was clear that what the Commissioner determined in 1967 was not “final” in the relevant sense. He also pointed out that, pursuant to the transitional provisions of the SRC Act, a determination of the delegate of the Commissioner under the 1971 Act was deemed to be a determination under the SRC Act, giving rise to an ability for that determination to be reconsidered pursuant to s 62 of the SRC Act.

[5] s 20(1)

[6] s 20(4)(a)

consideration of the estoppel issue

13.     In relation to the arguments put by Mr Ettridge, the first thing to be noted is that not all of the authorities cited by him in fact support the conclusions or reasoning which he urged upon the Tribunal.  Some of the authorities he relied upon related to doctrines which were inapplicable in the context of these proceedings, or could not assist him in this application[7].

[7] For example, Mr Ettridge sought to rely upon the decision of the High Court in Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502. However, that matter dealt with the doctrine of res judicata or “cause of action estoppel”. The rule as to res judicata can be summarised by saying “where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action”. The rule as to res judicata has no application here, since the Tribunal is not a Court and in any event Mr Ettridge does not seek to rely on any earlier Court decision dealing with the same issues as currently before the Tribunal.

14.     A number of the authorities relied on by Mr Ettridge related to the question of “issue estoppel” and its application in Tribunal proceedings.  Most of the authorities he referred to were against the proposition that “issue estoppel” applies to Tribunal proceedings[8] so as to prevent a later Tribunal from considering again an issue which has been dealt with by a previous Tribunal.  However, even if those authorities had reached the opposite conclusion in relation to that issue, this would be of little assistance to Mr Ettridge, since no previous Tribunal has considered the issue which is currently before us.

[8] For example, Re Rana and MR&CC and Re Jebb and Repatriation Commission.

15.     As noted above, Mr Ettridge also relied upon a decision of the Supreme Court of South Australia in Liccione.  However, that decision was made in quite a different context from that surrounding this application.  In that matter a worker was seeking to resist recovery  by an insurer of workers’ compensation payments made during a period for which it was subsequently determined that the insurer was not liable.  In this context, the Supreme Court held that there was an estoppel operating which prevented the worker from re-contesting the issue of liability in the context of the action to recover a debt.  That matter has few parallels with this one and in our view that authority provides little support for Mr Ettridge’s arguments.

16.     The authorities referred to by Mr Ettridge which were most applicable to this matter were those dealing with the doctrine of equitable estoppel more generally, and in particular the circumstances in which the Commonwealth can be prevented from resiling from a position it has previously adopted.  The decision of the New South Wales Court of Appeal in Huysse is of some relevance in this regard as it dealt in part with a determination under the 1971 Act and the relevance of the fact that, at the relevant time, the Commissioner had a power to reconsider determinations under that Act.  However, the Court dealt with that issue in the context of a personal injury action against the Commonwealth, rather than in the context of merits review of an administrative decision and for that reason we consider that decision to be of limited assistance. 

17.     Some of the authorities which we consider to be more applicable to the circumstances of this matter were referred to and summarised by Deputy President Jarvis in Re Jebb as follows:

“… It appears well settled that estoppel does not operate so as to sanction the appropriation of public moneys without the authority of the Parliament, and accordingly, estoppel cannot permit action by a public official that is inconsistent with his or her statutory obligations: Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 125.7; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 107; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 17.2.” [9]

[9]  At [27]

18.     The Deputy President accordingly went on to observe in relation to the matter before him:

“The present matter involves determining Mr Jebb’s right to a pension in respect of IHD. It involves determining his right and the Commission’s obligation, and it is not a case involving the exercise of a statutory discretion. Accordingly, estoppel cannot operate to permit the decision-maker to determine the matter other than in accordance with the applicable statutory regime. …” [10]

[10] At [29]

19.     Taking into account all of the decisions we have been referred to, overall, we consider that the weight of authority is against the proposition contended for by Mr Ettridge, that an initial determination made in 1967 is capable of creating an estoppel such as to prevent the Commonwealth from considering whether it remains liable to pay compensation in relation to the same condition in 2008.

20. That proposition is also contrary to a number of decisions of the Federal Court over recent years which have addressed the nature of administrative decision-making generally, and under the SRC Act in particular[11]. In our view, those decisions have relevance in this context since any entitlement to compensation Mr Ettridge has must be found in the SRC Act, and at least since 1971, the Commonwealth has had the power to reconsider a previous determination.

[11] See for example, Hannaford, Abrahams v Comcare (2006) 93 ALD 147.

21.     A number of these authorities were referred to by Deputy President Jarvis in Re Filsell and Comcare (2009) 109 ALD 198, in which he made the following observations in relation to the statutory scheme provided by the SRC Act:

“Under the SRC Act, this tribunal’s function of review is part of a continuing process of administrative decision-making. As mentioned above, the principle of res judicata is that a cause of action merges into the judgment in the relevant prior proceeding. In my view, this principle is inappropriate to administrative decision-making, which does not involve the determination of causes of action, and where many decisions of this tribunal not only determine rights between the parties to the proceedings, but also have relevance to third parties and to the process of administration generally.

Furthermore, legislation conferring an entitlement to benefits commonly includes provision for the reconsideration of decisions, so that if events by reference to which entitlements are assessed change or do not eventuate as expected, decision-makers are empowered to reconsider the position. Where such legislation confers a right for parties affected by the decision on reconsideration to apply to this tribunal for review of that decision, that statutory entitlement and the duty that is then imposed on this tribunal to hear and determine the application cannot be denied by relying on doctrines of estoppel that apply to proceedings in courts. This tribunal may, however, exercise its statutory powers under ss 42B and 33 of the AAT Act to prevent parties revisiting issues that have been determined in earlier proceedings in the tribunal, or to limit the matters that may be raised in the later application.

In the context of the present matter, under s 62 of the SRC Act, decisions may be reviewed by a determining authority on its own motion, and in some cases when new medical evidence becomes available, payments of compensation are terminated where that evidence indicates that the claimant is no longer incapacitated. …

If a new claim is made and determined by Comcare, or there is a review on own motion, the rights of review provided for in the SRC Act are available to the parties, and if an application for review is made to this tribunal, it has a statutory obligation to determine the application. Of course, if no new circumstances are found to exist, then the determining authority will no doubt re-affirm the position reached in its earlier determination, and if a second application for review is made to this tribunal in an attempt to re-litigate an issue previously determined by the tribunal, then generally, in the absence of evidence of new circumstances, the tribunal will exercise its discretion under s 42B to dismiss the application summarily. I think the preferable view is that this would not result from applying the doctrines of cause of action estoppel or issue estoppel, that these doctrines do not apply as such in this tribunal, and that any decision to prevent a party from revisiting claims or issues previously determined by the tribunal should be based on the powers and discretions available to the tribunal under ss 42B and 33 of the AAT Act.” [12]

[12] At [58]-[61]

22.     Ultimately however, it is unnecessary for us to finally resolve these issues.  That is because, in the view we have taken of the original determination and the respondent’s current position, there is no actual inconsistency between them capable of founding an argument based on estoppel.

23.     What the 1967 determination did was to determine that the Commonwealth was liable for the injuries suffered by Mr Ettridge in the accident of 5 March 1966, namely injuries to both of his shoulders.  There is no dispute that the respondent remains liable for the injuries to the applicant’s shoulders suffered as a result of that accident and the respondent does not seek to argue that it does not remain so liable. 

24.     It is our understanding on the material before us that, as Mr Ettridge was a serving member of the Australian Army at the time of his compensable injury, his wages and all medical expenses were paid by the Army and the injury had largely resolved by the time of his discharge.  So far as we are aware, he did not subsequently make any claim for medical expenses or incapacity payments arising from the injury until 26 October 2008, when he wrote to the respondent referring to his accepted claim and seeking “income maintenance”.[13]

[13] T48, p63

25. Given the repeal of the 1930 and 1971 Acts, there is no doubt that, when it received that claim for incapacity payments, the respondent was obliged to determine it pursuant to the provisions of the Act which then applied, being the SRC Act.

26.     We should add that, in the Tribunal’s view, construed in the context of the applicable legislation, the 1967 determination did not amount to an acceptance by the Commonwealth of liability in respect of any shoulder condition which may be suffered by Mr Ettridge for the remainder of his life.  What it reflected was an acceptance by the Commonwealth that it would pay compensation in respect of the injuries suffered to the applicant’s shoulders in the 1966 motor vehicle accident. 

27.     In that context, on receipt of the applicant’s correspondence of 26 October 2008, the immediate question for the respondent was whether there was a causal connection between the symptoms and restrictions complained of by Mr Ettridge, and the original injury.  Only if there was could there be any proper statutory basis on which to pay compensation to Mr Ettridge, consistent with the original determination. 

28.     That is precisely the question which the respondent did subsequently explore, ultimately concluding on the basis of medical evidence that his current symptoms and restrictions, and the medical treatment and incapacity for which he sought compensation, did not result from his compensable injury or otherwise give rise to an entitlement to compensation.  That is the position it has maintained in these proceedings and in our view, for the reasons we have given, that position is not in any way inconsistent with the determination of April 1967, which accepted liability for the injuries suffered by Mr Ettridge in the motor vehicle accident of 5 March 1966.  For that reason, no real question arises in these proceedings as to whether the respondent is estopped from contesting its liability to pay compensation to the applicant. 

29.     We are accordingly satisfied that there is no estoppel arising from the background to or circumstances of this application which prevents us from considering the merits of Mr Ettridge’s application, or constrains us in considering the application.

the substantive issue

30. That leaves for decision the question of whether, having regard to the provisions of the SRC Act, including the transitional provisions, the respondent has any liability to pay compensation to Mr Ettridge under the terms of that Act.

the statutory framework

31. The most relevant provisions of the SRC Act are as follows:

“5A      Definition of injury

(1)      In this Act:

injury means:

(a)      a disease suffered by an employee; or

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

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

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

…

5B      Definition of disease

(1)      In this Act:

disease means:

(a)      an ailment suffered by an employee; or

(b)      an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a)      the duration of the employment;

(b)      the nature of, and particular tasks involved in, the employment;

(c)any predisposition of the employee to the ailment or aggravation;

(d)      any activities of the employee not related to the employment;

(e)      any other matters affecting the employee’s health.

This subsection does not limit the matters that may be taken into account.

(3)      In this Act:

significant degree means a degree that is substantially more than material.

…

7Provisions relating to diseases

…

(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a)the employee first sought medical treatment for the disease, or aggravation; or

(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

whichever happens first.

…

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.

…

16Compensation in respect of medical expenses etc.

(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

…

19Compensation for injuries resulting in incapacity

(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:

NWE - AE

where:

AE is the greater of the following amounts:

(a)the amount per week (if any) that the employee is able to earn in suitable employment;

(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.

NWE is the amount of the employee’s normal weekly earnings.

…”

32. Section 124 of the SRC Act also provides that compensation is payable in respect of an injury suffered before the commencing day (1 December 1988) if compensation would have been payable under the relevant prior Act. In general terms, it provides that any entitlement to compensation is assessed under the terms of the Act in force at the time that the entitlement arose.

33.     It follows from these provisions that in order to establish an entitlement to compensation, Mr Ettridge must establish one or more of the following:

(a)      that as a result of the injuries sustained by him in 1966 (the compensable injury) he has suffered incapacity, permanent impairment or a need for medical treatment prior to 1988 which would have attracted compensation under the Act then in force; or

(b)      that as a result of the compensable injury he has an entitlement to payments in respect of permanent impairment, medical expenses or incapacity under the current Act;

(c)       that he has suffered a new “injury”, or an aggravation of a previous injury which arose out of or in the course of his Army service; or

(d)      in respect of any new condition suffered by him which is properly described as a “disease”, that that condition was contributed to in a significant degree by his Army service.

the evidence

The Factual Issues

34.     Mr Ettridge gave oral evidence at the hearing.  In relation to the motor vehicle accident in 1966 and its immediate aftermath, he said that following the accident, his left shoulder was worse than the right.  He had screws inserted into both shoulders, which were subsequently removed prior to his discharge from the Army.  He also gave evidence, which we accept, that ever since the accident in 1966 he had suffered pain in both shoulders on reaching into awkward spaces and so tended to avoid this.

35.     However, the weight of the evidence before us suggested that, in the time between when he was discharged from the Army in 1987 until 2008, Mr Ettridge’s shoulders did not trouble him greatly.  For example, in a report dated 17 August 1988, Dr Khera, consultant neurosurgeon, stated that Mr Ettridge “said that the shoulders were not giving him trouble now”.[14] 

[14] ST98, p 693

36.     In relation to the onset of Mr Ettridge’s further shoulder symptoms in 2008, the evidence before us clearly established that these had their onset in September 2008.  Included in the supplementary T documents is a report from Mr Ettridge’s general practitioner, Dr Carey, dated 16 April 2009, in which he reports that Mr Ettridge first presented with the injury on 15 September 2008 “describing symptoms of pain, stiffness and limitation of movement in both shoulders, worse on the left”.  Dr Carey also stated “Mr Ettridge attributed the cause to his work in the shop”[15].

[15] ST72, p 515

37.     This is consistent with Mr Ettridge’s evidence before us, in which he said that the pain he experienced in 2008 had first come on when he lifted a heavy piece of metal and became severe over a couple of days.  He said this led him to have difficulty sleeping on his left side and he had an x-ray and a cortisone injection.  He subsequently had a shoulder operation which largely cured his shoulder pain but he “still wanted to find out what was causing the problem”.  Since the operation he has had no need to take medication, although he still has difficulty lying on either shoulder with the right being just as bad as the left.   

38.     Mr Ettridge also stated that he had received a “pay out” under the State Workers’ Compensation Scheme in respect of a neck injury sustained while he was working as a bus driver.  He said he had a number of ongoing disputes before the State Workers’ Compensation Tribunal.  Under cross-examination, he also acknowledged that in addition to the neck injury for which he had sought compensation under the State scheme, he had also sought compensation under the State scheme for his rotator cuff tear suffered in September 2008.

39.     The documentary evidence before us also included a copy of the relevant claim form signed by Mr Ettridge on 10 February 2009, in which he claims compensation for a “shoulder injury” which occurred “not known – gradually got worse lifting?”.  The claim form also indicates that he first noticed the “injury” on 7-13 September 2008.[16]

[16] ST56, p 503

40.     The material before us also indicates that Employers Mutual Limited subsequently accepted liability for a left shoulder rotator cuff tear sustained on 1 September 2008[17], and also accepted liability to pay income maintenance and medical expenses in relation to that condition.[18]

[17] ST63, p 508

[18] Exhibit 4

The Medical Issues

41.     In relation to the medical issues, evidence was given at the hearing by Dr Fredrick Phillips, consultant orthopaedic surgeon, and also by Dr Pope, Mr Ettridge’s treating orthopaedic surgeon.  In relation to the critical question of the relationship between Mr Ettridge’s 1966 accident and his 2008 symptoms, each doctor expressed essentially the same opinion.  Each doctor considered that the symptoms experienced by Mr Ettridge were attributable to a rotator cuff tear sustained in 2008, which had no causal relationship with the 1966 accident. 

42.     Dr Phillips confirmed that he had examined Mr Ettridge on one occasion, on 9 January 2009 and provided a report dated 16 January 2009.[19]  In that report, he noted that Mr Ettridge reported that since October 2007 he had noticed “the development of quite different symptoms to those previously experienced over the past 40 years: a sharp variable pain associated with reaching elevation”[20].  In summarising his opinion, he stated:

“Mr Ettridge presents with new symptoms of recent onset in the left shoulder.  The symptoms are consistent with a rotator cuff tendinopothy.  I believe that he almost certainly has a full thickness tear rather than partial thickness tear at this stage.”[21]

[19] T57, p 99

[20] T57, p 100

[21] T57, p 101

43.     In relation to the relationship between his current presentation and the shoulder injury suffered by him in 1966, Dr Phillips stated in his report:

“Given that there was an acromioclavicular joint dislocation which was appropriately treated at the time, there has been the possibility of him developing osteoarthritic change at the acromioclavicular joint. … However, despite the fact hat he complained of symptoms which are presumably related to these joints over a 40 year period, it was not until very recently that the acute symptoms of an acute rotator cuff tear have developed.  Given that the x-ray changes demonstrate only mild osteoarthritic change with no large inferior osteophytes and good subacromial space, it is difficult to accept that the previous injury has contributed to the present condition of rotator cuff tendinopothy and rotator cuff tear given that Mr Ettridge is in the age group where this condition is common and given that he does not have the same problem on the other side.  Therefore, based on probability rather than possibility, I consider that the rotator cuff tendinopothy/tear is not directly related to the injury of over 40 years ago.”

44.     In his oral evidence, Dr Phillips indicated that a subsequent MRI had confirmed his diagnosis.  Questioned in relation to Dr Pope’s diagnosis of adhesive capsulitis and rotator cuff tear, he indicated that he did not disagree with that diagnosis. 

45.     When questioned in relation to whether Mr Ettridge may have suffered a rotator cuff injury in 1966, which caused or contributed to his presentation in 2008, Dr Phillips rejected this possibility.  He said that a rotator cuff tear “never heals” and that if Mr Ettridge had torn his rotator cuff in 1966, within a few years this would have extended and there would have been little evidence of a rotator cuff being present.  Furthermore, he would have expected to see the development of marked osteoarthritis within a period of 10 to 15 years from the date of injury. 

46.     Dr Phillips said that the fact that Mr Ettridge had suffered pain on reaching into awkward places since the injury of 1966 did not affect his opinion in this regard as he regarded that symptom as simply a residual effect of the 1966 injury, but not as evidence of any disturbance to the rotator cuff prior to 2008.  On questioning from the Tribunal, he indicated that he thought “something acute” had happened to Mr Ettridge’s shoulder to precipitate the symptoms he suffered in 2008 resulting in tearing of the rotator cuff and possible bursitis. 

47.     Under cross-examination by Mr Ettridge, Dr Phillips confirmed that if he had suffered a partial rotator cuff tear in 1966, he would have had a lot more degenerative change now.  He acknowledged that any arthritis that Mr Ettridge suffered in the acromioclavicular joint could reasonably be attributed to the 1966 accident.  However, on re-examination, he confirmed that x-rays and arthroscopy had shown only mild degenerative changes to Mr Ettridge’s acromioclavicular joint and he did not regard these changes as being the cause of the symptoms Mr Ettridge complained of in 2008.

48.     Both Dr Pope’s oral evidence and his reports were consistent with Dr Phillips’ evidence.  In a report dated 3 April 2009, he recorded the following history from Mr Ettridge:

“Mr Ettridge attributed his shoulder pain to lifting heavy tools and mechanical devices in the work environment.  He did not have a specific injury but has carried out repetitive lifting activities in the course of his employment.  Mr Ettridge wondered if his current symptoms are related to his previous shoulder injury when he was in the army in 1967.  I explained I did not think it was likely that his current condition is related to an injury which occurred 40 years ago.” [22]

[22] ST15, p 261

49.     Subsequently, he reported on his findings on operating on Mr Ettridge as follows:

“The findings at surgery were of a tight shoulder consistent with a development of an adhesive capsulitis with breakdown of adhesions on examination under anaesthetic.  The surgical findings were of a labral tear.  There was evidence of a subacromial bursitis and partial thickness cuff side rotator cuff tear.  There was no major prominence of the acromioclavicular joint.” [23]

[23] ST24, p 279

50.     In another report he stated that Mr Ettridge presented with left shoulder adhesive capsulitis secondary to a rotator cuff tear and this was unrelated to the injury he suffered in 1966 and he did not consider that Mr Ettridge’s rotator cuff was likely to have been injured in 1966[24].  He also stated “I attribute his current shoulder condition to his significant lifting activities over the years involved in his employment”[25]. 

[24] T74, p 207

[25] T75, p 216

51.     In his oral evidence Dr Pope confirmed these opinions, stating that if Mr Ettridge had injured his rotator cuff at the same time when he injured his acromioclavicular joint, this would have been “clear within months”.  He said that Mr Ettridge’s rotator cuff injury was not related to the injury to his acromioclavicular joint in 1966, but rather was due to a combination of lifting activities and his age. 

52.     Dr Pope pointed out that at age 60, 20 to 30 percent of the population will have a rotator cuff tear due to age.  He also pointed out that it was much harder for a younger person to sustain a rotator cuff tear, as more force was required to tear the rotator cuff.  Therefore the symptoms were also generally more dramatic in younger people.  He said it was very unusual for a person in their 20s to tear a rotator cuff, but more common to dislocate an acromioclavicular joint, as Mr Ettridge had done.  For example, this was a common injury in footballers, but it was not often accompanied by a rotator cuff tear. 

contentions

53.     Mr Wallace for the respondent submitted that the respondent did not resile from its acceptance of liability for Mr Ettridge’s shoulder injuries in 1967.  However, he also submitted that the respondent was not irrevocably bound to that description of the injuries and ultimately it was a question of fact as to precisely what the injuries to Mr Ettridge’s shoulders were.  He submitted that these are revealed with greater precision in the contemporaneous medical documentation, in particular in a case sheet which is undated but was prepared shortly after the injury.  This lists his injuries as being dislocation of the left acromioclavicular joint and no dislocation, but possibly partial sub-luxation of the right acromioclavicular joint.[26] 

[26] T78, p 216    

54.     Mr Wallace submitted that the medical evidence demonstrated that Mr Ettridge had essentially recovered from that injury, and that the injury suffered in 2008 was effectively a new injury which was unrelated to the compensable injury. 

55.     Mr Wallace submitted that the specialist medical evidence available to the Tribunal, including the evidence obtained from Mr Ettridge’s treating surgeon, was unanimously to the effect that there was no connection between Mr Ettridge’s compensable injury in 1966 and the shoulder condition suffered by him in 2008.  In those circumstances, he submitted that there was no proper basis for liability to be extended to cover that condition as a sequelae, or for payments to be made in respect of incapacity or medical expenses resulting from that condition.

56.      In support of that submission, he also relied upon authorities such as Abrahams v Comcare (2006) 93 ALD 147 and Hannaford, from which he said it was clear that it is not only permissible, but necessary for those administering the SRC Act to have regard to the evolving nature of medical conditions and changes in diagnosis. He also submitted it was clear from those authorities that those administering the SRC Act are obliged to determine entitlements having regard to current medical evidence, even where this may dictate a conclusion which is different from decisions made previously.

57. In its Statement of Facts, Issues and Contentions, the respondent also made reference to s 118(1) of the SRC Act and argued that, to the extent Mr Ettridge had already received compensation “for the same injury … compensation is not payable under the SRC Act in respect of the injury”[27].  However this issue was not referred to by Mr Wallace in his oral submissions.

[27] At [4.3]

58.     Mr Ettridge argued that the respondent had accepted liability for “injured shoulders” and as such it was liable to pay him compensation for any incapacity or medical expenses flowing from problems with his shoulders.  He also argued that there was evidence to suggest that the shoulder condition which became symptomatic in 2008 was in any event originally caused by or contributed to by his compensable injury in 1966 and as such was compensable in any event as a sequelae of that injury.

consideration

59.     As we have indicated above, in order to establish an entitlement to compensation, Mr Ettridge must demonstrate that his original injury has continued to cause him incapacity or impairment for which he has not previously been compensated, or that he suffers a different condition, being either an injury which arose out of or in the course of his Army service, or a “disease” to which his Army service has contributed to a significant degree. 

60.     As to the precise nature of his original injuries in 1966, we accept Mr Wallace’s submission that it is clear from the contemporaneous medical evidence that he relevantly sustained injuries to his acromioclavicular joints, amounting to dislocation of the left and subluxation on the right.  Consistently with our observations above in the context of the estoppel issue, it is these injuries which we consider the Commonwealth to have accepted liability for. 

61.     It is also clear on the evidence before us that, although he initially sought to have liability extended to include “heterogeneous supraspinatus tendon and partial tear” and also referred to “rheumatism”, the symptoms Mr Ettridge experienced in 2008 were attributable to a left rotator cuff tear with adhesive capsulitis. 

62. In relation to characterisation of that condition for the purposes of the SRC Act, we consider that this condition, or at least some aspects of it, could potentially be regarded as a disease rather than an injury. For that reason, it is appropriate for us to have regard to each of the applicable tests in relation to causation, that is whether the condition occurred during or arose out of Mr Ettridge’s Army service, and whether the condition was contributed to to a significant degree by his Army Service. We note that if the condition is treated as a “disease”, then it is taken to have been sustained, relevantly, when he first sought medical treatment for it[28], which on the evidence before us was on 15 September 2008. As ss 5A and 5B of the SRC Act each commenced operation on 13 April 2007, the “significant contribution” test applies to the condition.

[28] s 7(4)

63.     Whichever “route” to liability is adopted however, in order to establish liability for the condition he suffered in 2008, Mr Ettridge must demonstrate a causal relationship between the injury suffered in 1966 and the symptoms he first suffered in 2008.  We note that there was no evidence to suggest and nor did Mr Ettridge contend that there was any other aspect of his Army service, apart from the motor vehicle accident in 1966, which had caused or contributed to his shoulder condition.

64.     The difficulty confronting Mr Ettridge is that in relation to the question of causation, with the exception of one report from Dr Carey[29], the medical evidence before us is unanimously against there being any causal connection between the original compensable injury in 1966, consisting of damage to both acromioclavicular joints, and the condition with which he presented in 2008.  In fact the opinions of each of the specialists who gave evidence were strikingly consistent on that issue.

[29] T 53

65.     Dr Pope and Dr Phillips both stated that the symptoms suffered by Mr Ettridge in 2008 were caused by a rotator cuff tear together with adhesive capsulitis, and that this condition had no connection with Mr Ettridge’s compensable injury sustained in 1966.  Both doctors were questioned extensively by Mr Ettridge, counsel for the respondent and also the Tribunal and both were clear, firm and consistent in their opinions that Mr Ettridge was unlikely to have suffered any damage to his left shoulder in the 1966 accident which could have in any way caused or contributed to the condition with which he presented in 2008.

66.     Although he experienced pain on reaching into awkward places prior to September 2008, there was also no evidence before us to suggest that Mr Ettridge had ongoing difficulties with his shoulders prior to September 2008 giving rise to an entitlement to compensation.  Whilst there was evidence of mild degenerative changes to his acromioclavicular joints, there was also no evidence before us to suggest that Mr Ettridge was suffering from “rheumatism” in either shoulder, and he did not seriously pursue that aspect of his claim before us.

conclusion

67.     Having regard to the consistent evidence of Dr Pope and Dr Phillips, which we accept, we have concluded that the shoulder condition suffered by Mr Ettridge in 2008, which we note has now largely resolved, was not caused or contributed to by his compensable injury in 1966 and nor did it occur in the course of or arise out of his Army service.  In those circumstances, we have also concluded that he has no entitlement to compensation in respect of that condition.  In addition, we have concluded that Mr Ettridge has no current entitlement to compensation flowing directly from his compensable injury sustained in 1966.

68. On the evidence before us it appears that Mr Ettridge has recovered compensation under the applicable State legislation in respect of the injury suffered by him in September 2008. However, in light of our conclusion that the respondent has no liability for this condition in any event, we have found it unnecessary to determine whether, if the respondent was liable, compensation would not be payable as a result of the operation of s 118 of the SRC Act.

69.     Relating our conclusions more precisely to the terms of the legislation, we are satisfied that:

(a)      the compensable injury suffered by Mr Ettridge in 1966 has not resulted in any incapacity, impairment or need for medical treatment beyond that suffered during his Army service and for which he has already been compensated;

(b)      the condition suffered by him in September 2008 did not arise out of or in the course of his Army service; and

(b)      neither his compensable injury sustained in 1966 nor his Army service made a significant contribution to the condition which had its onset in 2008, being a rotator cuff tear together with adhesive capsulitis of the left shoulder.

70.     It follows that we consider the reviewable decision to be substantively correct. However we have decided that we should vary that decision so as to reflect the correct diagnosis of Mr Ettridge’s condition on the medical evidence before us, and so as to address all aspects of his claim.

decision

71.     We have therefore decided to vary the reviewable decision of 6 May 2009 so as to add the following:

(a)      Mr Ettridge has no current entitlement to compensation in relation to the compensable injury suffered by him on 5 March 1966; and

(b) in relation to the condition first suffered by Mr Ettridge in September 2008, being the condition of “left rotator cuff tear with adhesive capsulitis”, the respondent has no liability for that condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 Act.

72.     We have also decided to otherwise affirm the reviewable decision.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
and Dr E T Eriksen (Member)

Signed:         ...........J Coulthard...........................................
  Associate

Dates of Hearing  6-7 April 2010
Date of Decision  7 June 2010
Advocate for the Applicant       Self-represented
Counsel for the Respondent     Mr J Wallace
Solicitor for the Respondent     Sparke Helmore