John Rogers and Linfox Australia Pty Ltd
[2015] AATA 673
•4 September 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2014/0170
General Division )
Re: John Rogers
Applicant
And: Linfox Australia Pty Ltd
RespondentDIRECTION
TRIBUNAL: Senior Member CR Walsh
DATE: 9 February 2016
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in relation to application 2014/0170 as follows:
- Pursuant to s 67(8) of the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”), the costs of the proceeding incurred by the applicant be paid by the respondent in accordance with Section 6.9 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
...................................................................
Senior Member
Rogers and Linfox Australia Pty Ltd (Compensation) [2015] AATA 673 (4 September 2015)
Division
GENERAL DIVISION
File Number(s)
2014/0170 & 2014/2992
Re
John Rogers
APPLICANT
And
Linfox Australia Pty Ltd
RESPONDENT
Decision
Tribunal Senior Member CR Walsh
Date 4 September 2015 Place Perth The Tribunal:
(i) in No. 2014/0170, sets aside the decision under review and substitutes that decision with the decision that Mr Rogers is entitled to incapacity payments under s 19 of the Safety Rehabilitation & Compensation Act 1988 from 20 December 2013; and
(ii) in No. 2014/2992, affirms the decision under review.
....(Sgd) CR Walsh...................................................................
Senior Member CR Walsh
CATCHWORDS
COMPENSATION- liability for incapacity payments for accepted right shoulder injury sustained by the applicant in the course of his employment as a truck driver – Tribunal’s jurisdiction - liability for pulmonary embolism attributed to treatment for accepted right shoulder injury – decision under review in No. 2014/0170 set aside and substituted – decision under review in No. 2014/2992 affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act- s 4(3) - s 14 – s 16 - s 19 – s 36(3) - s 61- s 62 - s 64
CASES
Telstra Corporation Ltd v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
Senior Member CR Walsh
4 September 2015
introduction
On 4 April 2013, Mr Rogers sustained an injury to his right shoulder in the course of his employment as a truck driver for Linfox Australia Pty Ltd (Linfox).
Mr Rogers seeks a review of the following two decisions of Linfox’s insurer, CGU Self Insurance Services (CGU):
(i)a decision, dated 3 January 2014, that Linfox had no present liability to pay Mr Rogers compensation for incapacity payments for his accepted right shoulder condition under s 19 of the Safety Rehabilitation & Compensation Act 1988 (SRC Act) (No. 2014/0170); and
(ii)a decision, dated 5 June 2014, denying liability for Mr Rogers’ “pulmonary embolism (caused by a blood clot)”[1] condition, attributed to treatment received for the accepted right shoulder condition, namely shoulder surgery on 26 May 2013 and a steroid injection on 8 October 2013, pursuant to s 14 of the SRC Act (No. 2014/2992).[2]
[1] This decision affirmed an earlier determination of Linfox, dated 20 December 2013
[2] This decision affirmed an earlier determination of Linfox, dated 15 May 2014.
FactUAL & Procedural background
On 4 April 2013, Mr Rogers sustained an injury to his right shoulder in the course of his employment as a truck driver for Linfox.
On 4 April 2013, Mr Rogers was examined by Dr Ross Smith who completed a WorkCoverWA “Workers’ Compensation First Medical Certificate” which assessed Mr Rogers as having a “Rotation cuff injury” and stated that Mr Rogers was “Totally unfit for work for 10 days from 4/4/13 to 14/4/13 (inclusive)”.
On 10 April 2014, Mr Rogers lodged a claim for workers’ compensation with Linfox in respect of a “right shoulder injury” on 4 April 2013 (Workers’ Compensation Claim). In the Workers’ Compensation Claim, Mr Rogers attributed his right shoulder injury to tightening straps on his trailer by way of a ratchet binder, claiming that he suddenly felt pain in his shoulder when pulling on the binder.
On 30 April 2013, Mr Rogers underwent an MRI of the right shoulder which recorded:
1. Mild infraspinatus insertional tendinopathy. The remainder of the rotator cuff is normal.
2. Moderate subacromial/subdeltoid bursal thickening. Mild AC joint degenerative change.
3. Superior and posterosuperior labral tear with paralabral cyst formation, the paralabral cyst extending into the suprascapular and spino-glenoid notches without current MR evidence of denervation into the suprascapular and spino-glenoid notches without current MR evidence of denervation oedema or atrophy in the distribution of the suprascapular nerve.
In May 2013, Mr Rogers was referred to orthopaedic surgeon Mr Michael Edwards who recommended surgery to Mr Roger’s right shoulder. More specifically, in a letter to CGU (Linfox’s insurer), dated 17 May 2013, Mr Edwards stated:
The 53-year old right-hand-dominant truck driver for Linfox has injured his right shoulder in late March and April 2013, developing significant pain with poor shoulder function. It has failed to settle over a six-week period with rest and simple analgesia. Initial significant bursitis but no tendon tears. There is, however, a superior and posterosuperior labral tear with a large paralabral cyst arising from the 11 o’clock position which extends into the suprascapular and spineoglenoid notches potentially compressing the suprascapular nerve.
In view of this failure to settle I would recommend we proceed to right shoulder subacromial decompression with bursectomy and evacuation of the spinoglenoid ganglion plus or minus labralo repair or debridement.
On 21 May 2013, Linfox determined that it was:
liable to pay compensation to Mr Rogers in accordance with Section 14 of the SRC Act in respect of the Right superior and posterosuperior labral tear sustained on 04/04/2013. [Emphasis added]
(Section 14 Determination).
The “Reasons for Decision”, attached to the Section 14 Determination state:
7. In considering all the available evidence, including medical certificates and reports, I am satisfied that Mr Rogers did sustain an injury for the purposes of the SRC Act on 04/04/2013, namely “Right superior and posterosuperior labral tear”. In this regard I am reliant on the evidence provided by Dr Bloor, Mr Michael Edwards and the MRI of Right shoulder.
8. I have therefore determined that Linfox Australia Pty Ltd is liable to pay compensation in respect of this claim under Section 14 of the SRC Act and that Mr Rogers is entitled to compensation under Sections 16 and 19 of the SRC Act, including surgical repair – specific details of which are noted in Mr Roger’s claim file and faxed to Mr Michael Edwards.
On 26 May 2013, Mr Rogers underwent right shoulder subacromial decompression, with evacuation of large spenoglenoid ganglion and superior labral repair surgery. In his “Witness Statement”, dated 8 May 2015, Mr Rogers states (at [56]) that following his operation on 26 May 2013 his arm was strapped to his body for three months.
In a letter to CGU (Linfox’s insurer), dated 23 July 2013, Mr Edwards reported on Mr Roger’s condition following his right shoulder surgery on 26 May 2013, as follows:
He was seen at the 2 week and 6 week mark following surgery, the last review on 2nd July 2013. Overall he was making good progress until approximately 2 weeks prior to the last review, he woke up with significant pain. He tends to be a very restless sleeper, sleeping on the shoulder. His exercise technique was very poor also.
……….
Time period for recovery is in the order of 12 months following the superior labral repair.
Unfortunately his return to work will be limited due to the fact that he is a truck driver which requires significant physical work. Generally I keep them off work for the first 10 – 12 weeks and then I would be happy for him to return to some very light duties office based type work, paperwork etc. He would not be able to do any significant manual work for at least 4-6 months. Climbing in and out of the trucks is often difficult until at least the 6 month mark.
On 2 September 2013, at the request of CGU (Linfox’s insurer), Mr Rogers was examined by Dr Michael Bowles, Occupational Physician, for the purposes of a “Section 36(3) assessment”. In his report, dated 2 September 2013, Dr Bowles Reported:
Diagnosis and Opinion
Mr Rogers has a post-operative capsulitis or frozen shoulder. There was significant restricted function in the right upper limb girdle by virtue of minimal movement in the right shoulder joint.
At this stage I would suggest a glenohumeral joint cortisone injection.
Mr Rogers would not benefit from active intervention.
Mr Rogers was going to organise further review with Dr Edwards.
From a work point of view, Mr Rogers is not capable of using the right arm in any forceful fashion. He would not be safe to enter or exit prime mover vehicle.
Mr Rogers in my opinion has a capacity for duties as listed in the Duties Plan 1.
I could not identify any significant barriers to that outcome and Mr Rogers appearing to be in a positive mindset towards his employers.
…………..
6. Guidance on work capacity
……There is capacity for sedentary office type work. Mr Rogers does not have the capacity to use the right arm in a repetitive or forceful fashion.
7.Does Mr Rogers have the capacity to return to his full time work (being a Truck Driver)?
Mr Rogers is not fit to return to truck driving presently.
…………..
10. Does Mr Rogers have the capacity to return to his pre-injury duties?
Mr Rogers does not have capacity to perform pre-injury duties.
11.If not, when is Mr Rogers likely to achieve a return to pre-injury duties?
Whilst difficult to prognosticate on, I don’t believe this outcome will occur within a six month timeframe.
…………..
14. The recommended actions to overcome the return to work barriers.
……….Mr Rogers was not representing any significant issues. He said Linfox was a “good mob” to work with. However the right shoulder has very poor function presently and significantly limits Mr Roger’s work options, however I do concur with the duties available in terms of those listed on the Suitable Duties Plan 1.
On 26 September 2013, Mr Bradley Shadbolt, Rehabilitation Manager, Linfox, prepared a “Proposed Suitable Duties Plan” in relation to Mr Rogers with a proposed start date of 7 October 2013 and a proposed review date of 24 November 2013.
On 8 October 2013, at the recommendation of Mr Edwards, Mr Rogers received a right shoulder injection. In his report, dated 8 October 2013, Dr Anuj Patel of the Perth Radiological Clinic, reported that Mr Rogers’ right shoulder injection involved the following procedure:
Under fluoroscopic guidance a 22 gauge needle was directed to the right glenohumeral joint. A combination of 1 ml bupivacaine and 2 ml Kenacort A-40 injected with no immediate complications.
By letter to Mr Shadbolt, dated 9 October 2013, Mr Edwards reported:
Mr Rogers initially did well in the early postoperative period.
………
As of my last review on 25 September 2013; with his significant pain and poor range of motion I did not consider him fit for any significant work.
On review of your proposed suitable duties plan, while I agree with some of the very light paperwork-type activities, I would not consider him fit for checking load restraints in the loading yard or changing batteries or performing any truck driving at this point in time.
As you have seen in Dr Michael Bowles’ report, page 4, it states from a work point of view Mr Rogers is not capable of using the right arm in any force or fashion. He would not be safe to enter or exit a prime mover vehicle. He also states that Mr Rogers has the capacity for duties as listed in duties plan 1. I do not have a copy of that.
On 27 October 2013, Mr Rogers was admitted to Royal Perth Hospital (RPH) (after being initially treated at the Swan District Hospital), and he was discharged on 29 October 2013. The RPH inpatient discharge letter noted that the principal diagnosis on discharge was left upper lobe pulmonary embolism, and referred to a previous history of “DVT left arm post IVC”.
In a letter to Mr Bruce Borci, Senior Case Manager, CGU, dated 13 November 2013, Mr Edwards reported the following in relation to Mr Rogers’ pulmonary embolism.
Mr Rogers does continue to suffer the effects of a right shoulder condition with pain and stiffness.
………
I have no information regarding the diagnosis of DVT/pulmonary embolism, as I have not been informed by the treating hospitals.
………..
I cannot make comment whether this is related to his right shoulder condition, as I have no indication of the origin of the pulmonary embolism if that is in fact the diagnosis.
…………
……..I think the ongoing medical treatment is appropriate and I would like to perform an MRI once his shortness of breath settles.
I can make no comment on the management of his pulmonary embolism.
………..
He currently has no capacity for work as a result of both his shoulder as well as his pulmonary embolism and shortness of breath. He has significant shoulder pain and limited range of motion. I cannot state when he will be fit to make a graduated return to work at this point in time. I cannot accurately apportion a degree of contribution of each condition to his inability to work at this point.
………..
I think there are multiple factors contributing to delay in his recovery, being both the workers’ compensation conflict and multiple people being involved in his management going against my recommended treatment initially. There is also the issue of the inquest with his son’s suicide. Obviously his pulmonary embolism has also contributed to delay in recovery of his right shoulder, as this resulted in significant shortness of breath and chest pain.
By letter dated 5 December 2013, CGU (Linfox’s insurer) asked Mr Rogers’ solicitors to advise whether Mr Rogers wanted a formal decision on whether the pulmonary embolism condition was “related to the compensable shoulder condition”.
On 20 December 2013, CGU (on behalf of Linfox) made the following determination (under s 61 of the SRC Act) in respect of Mr Rogers’ right shoulder condition (Right Shoulder Condition Determination):
No Present Liability For Incapacity
I refer to your claim for compensation in respect of a right shoulder injury sustained on 4 April 2013 and my letter of 22 November 2013, which advised that you may no longer be entitled to incapacity benefits.
……..
Having assessed the available evidence, I have made a Determination that you are not presently entitled to incapacity benefits under section 19 of the SRC Act.
The “Statement of Reasons”, attached to the Right Shoulder Condition Determination, provide:
1. Your claim has recently undergone a review of your incapacity entitlement following receipt of reports from Dr Bowles and Mr Edwards [i.e. dated 2 September 2013 and 9 October 2013, respectively]
………..
4. Based on the above reports, I conclude that you have a capacity to earn in suitable employment, namely the modified duties made available by Linfox, and that your ability to earn in the said employment means you are no longer entitled to incapacity payments pursuant to section 19 of the SRC Act. [Emphasis added]
On 2 January 2014, Mr Rogers requested that the Right Shoulder Condition Determination be reconsidered under s 62 of the SRC Act.
On 3 January 2014, CGU (on behalf of Linfox) reconsidered and affirmed the Right Shoulder Condition Determination (under s 62 of the SRC Act) on the basis that it had:
No present liability to pay compensation under section 19 of the SRC Act for [Mr Rogers’] incapacity benefits. [Right Shoulder Condition Decision]
On 10 January 2014, Mr Rogers applied to the Tribunal for a review of the Right Shoulder Condition Decision (under s 64 of the SRC Act). Mr Rogers’ stated “Reasons for Application” are:
The Applicant is incapacitated as a result of his injury of 4 April 2013 sustained during the course of his employment.
The Applicant continues to require medical treatment as a result of his work related injury.
The decision of the Respondent dated 20 December 2013 is wrong.
On 15 January 2014, Clinical Associate Professor Marcel Goodman, Vascular Surgeon, provided a report for CGU, wherein he diagnosed Mr Rogers as suffering from a:
pulmonary embolus affecting the subsegmental branch of the left pulmonary artery.
In his report dated 15 January 2014, Professor Goodman also stated:
……The operation and initial pathology was many months from the time of presentation of chest pain at the end of October and presumably the onset of the episode of pulmonary embolus. With regard to the lower limb venous circulation I am assuming that the operation in June 2013 was associated with minimal or no period of bed rest and mobilisation and therefore the factors leading to the lower limb deep vein thrombosis would minimally apply it at all. The incidence of a pulmonary embolus altera procedure such as endoscopic repair of a shoulder joint labrum is exceedingly low.
In his report dated 15 January 2014, Professor Goodman made the following comments with respect to any connection between the steroid injection received by Mr Rogers on 8 October 2013 and the development of an embolus:
It is not clear to me why Mr Rogers underwent a steroid injection or by whom, whether it was done under ultrasound or x-ray guidance. This information would be invaluable, especially if it is suggested that the pulmonary embolus is a complication of the steroid injection into the right shoulder area, presumably by means of a local deep vein thrombosis. This potential but unlikely series of events would justify the carrying out of duplex venous studies of the right upper limb including axillary and subclavian veins. If there had been a deep vein thrombosis initiated as a result of the complication of the steroid injection, there may well be residual evidence in the veins to be examined by duplex scanning.
In his report dated 15 January 2014, Professor Goodman noted the “possibility” that Mr Rogers suffered from a “pre-existing underlying tendency to thrombophilia” (i.e. deep vein thrombosis).
In a letter from Dr Paul Kruger, Haematology Registrar, RPH, to Dr Geoffrey Bloor, dated 16 January 2014, Dr Kruger stated:
…..Three months after this he had a corticosteroid injection in the shoulder as well. The day after the corticosteroid injection, John developed chest tightness and shortness of breath and was found to have a pulmonary embolus on a CTPA scan.
…….
John has not had a pulmonary embolus before, and he has had a left arm deep vein thrombosis before in the context of an intravenous cannula and this was treated with Clexane a few years ago.
……….
My impression is that John’s PE is likely to be related to his shoulder surgery which was quite recent before the PE. Our recommendation today is that he has at least six months of anticoagulation, taking him to approximately April 2014, but we should also check his thrombophilia screen to see if there are any other prothrombotic tendencies in his blood. [Emphasis added]
On 24 March 2014, Mr Rogers lodged a Comcare “Claim for Workers’ Compensation” for a “pulmonary embolism (caused by blood clot)”, which he attributed to “undergoing treatment for right shoulder injury” (Pulmonary Embolism Compensation Claim).
On 10 April 2014, Professor Goodman provided a further report, in which he provided the following opinion:
Minimally invasive surgery of the upper limb is very rarely associated with deep vein thrombosis and/or pulmonary embolus. However there are reports in the literature and these are germane to Mr Rogers. The first association is in relation to patients with some form of thrombophilia that is a pre-disposition to deep vein thrombosis. This issue was raised in my report of January 2014.
…
I can find no report of cortisone injection leading to upper limb deep vein thrombosis or pulmonary embolus. I note that the injection was done under fluoroscopic control. This should ensure that bony landmarks are chosen so that the needle and its contents pursue a course away from major structures such as deep veins, nerves etc.
…
I pointed out the association albeit extremely rare between upper limb minimally invasive surgery and deep vein thrombosis/pulmonary embolus. In Mr Roger’s case, the prior history of deep vein thrombosis in 2009 is a complex one. The circumstances are not clear. I note that it was related to an indwelling catheter and that he was given Clexane. This would lead one to suspect that the extent of the thrombosis was significant. However we have no information beyond that whether a thrombophilia profile was carried out and whether Mr Rogers was told that he had a predisposition to thrombosis. If this investigation has been performed in 2009 and was positive and Mr Rogers was aware of this he had an obligation to advise his further medical attendants.
Further information concerning the episode of upper limb deep vein thrombosis in 2009 must be obtained in order for its significance to be justifiably assessed.
2.Whether you agree with the conclusions reached by Dr Kruger and his view that Mr Rogers’ PE condition is connected with his should surgery …
The shoulder surgery was carried out in June 2013. The episodes of chest pain and shortness of breath was approximately four months later. This represents quite a significant time gap between the procedure, the presumed deep vein thrombosis and the event of pulmonary embolisation.
…….
We must assume that deep vein thrombosis caused the embolus in October. If it was related to the shoulder surgery as claimed, the area of thrombosis have been well established and easily seen on duplex scanning.
……..
Thus although an association exists between shoulder surgery and upper limb deep vein thrombosis/pulmonary embolus, Mr Rogers’ case is atypical and can neither be confirmed nor excluded.
……..
There is a close temporal relationship between the cortisone injection performed on 8 October and the onset of symptoms approximately five days later. As I stated above I cannot find any report in the literature of deep vein thrombosis following a cortisone injection into the shoulder area - not in itself an uncommon procedure.
…….
As stated above, I cannot provide any connection between cortisone injection and deep vein thrombosis/pulmonary embolus.
3.If your views differ from Dr Kruger, the basis on which you disagree with his comments
Dr Kruger’s statement that the pulmonary embolus is likely related to the shoulder surgery is not correct since that is the one event that had the potential to be associated with deep vein thrombosis and pulmonary embolus. I have pointed out the difficulty in making the association in Mr Rogers’ case.
On 15 May 2014, the Pulmonary Embolism Compensation Claim was determined by CGU (on behalf of Linfox), as follows:
Determination
………I have determined that Linfox Australia Pty Ltd is not liable to pay Mr Rogers compensation in respect of his claimed pulmonary condition, being a “pulmonary embolism” in accordance with section 14 of the SRC Act. [Pulmonary Embolism Condition Determination]
On 23 May 2014, Mr Rogers requested a reconsideration of the Pulmonary Embolism Condition Determination asserting that the report of Dr Kruger, Haemotology Registrar of RPH, dated 16 January 2014, ought to be preferred over that of Professor Goodman, Vascular Surgeon, dated 15 January 2014.
On 5 June 2014, CGU (on behalf of Linfox) considered and affirmed the Pulmonary Embolism Condition Determination (Pulmonary Embolism Condition Decision). The “Statement of Reasons”, attached to the Pulmonary Embolism Condition Decision, state:
In terms of whether Mr Rogers has an entitlement to compensation for his claimed pulmonary embolism condition under the SRC Act, I note that section 14 of the SRC Act provides the following:
“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.”
In view of the medical evidence to hand, particularly the report of Dr Goodman, vascular surgeon, I am satisfied that Mr Rogers has sustained a pulmonary embolism condition.
I note that Mr Rogers’ has submitted that his claimed pulmonary embolism condition arose as a consequence of the medical treatment he underwent in relation to his accepted right shoulder condition.
I am mindful that section 4(3) of the SRC Act contemplates the payment of compensation in circumstances wherein medical treatment paid for under the SRC Act, results in an injury:
“For the purposes of this Act, any physical or mental injury or ailments suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a) compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b) it was reasonable for the employee to have obtained that medical treatment in the circumstances.”
With respect to the medical evidence to hand, I agree with the conclusions of the Primary Delegate, insofar as the available medical evidence does not support a conclusion that Mr Rogers’ pulmonary embolism condition arose as a consequence of the medical treatment undertaken in relation to his accepted right shoulder condition.
In this regard, I agree that the specialist evidence provided by Dr Goodman, vascular surgeon, ought to be preferred over that of Dr Kruger insofar as supporting the view that the cortisone injection could not have caused Mr Rogers’ embolism condition and the probability of Mr Rogers developing the pulmonary embolism due to the shoulder was exceptionally low, mindful of the significant delay between the surgery in July 2013 and Mr Rogers’ presentation with symptoms consistent with pulmonary embolism in October 2013.
In preferring the evidence of Dr Goodman, I note that he has provided the most recent evidence and indeed has had the benefit of considering all of the medical evidence to hand, including the most recent report of Dr Kruger, in forming his opinion.
Therefore, I am satisfied that Mr Rogers has not sustained an injury within the meaning of section 4(3) of the SRC Act and as such has no entitlement to compensation in accordance with section 14 of the SRC Act.
In these circumstances, I have affirmed the Determination dated 15 May 2014 which denied liability in respect of your claimed pulmonary embolism condition, having regard to section 14 of the SRC Act. [Emphasis added]
On 9 June 2014, Mr Rogers applied to the Tribunal for a review of the Pulmonary Embolism Condition Decision.
Right Shoulder Condition Decision (No. 2014/0170)
Jurisdiction of the Tribunal – Telstra v Hannaford
In preparation for hearing, Mr Rogers’ solicitors obtained a further medical report, dated 15 August 2014, from Mr Edwards (i.e. Mr Rogers’ treating Orthopaedic Surgeon).
The crucial portion of Mr Edwards report, dated 15 August 2014, is as follows:
7.To what do you attribute our client’s current reported shoulder symptoms?
7.1Do you believe our client’s shoulder condition is attributable to the incident of 4 April 2013? Do you consider that the work performed has contributed to a significant degree?
The two incidents that occurred, being undoing the turntable and ratcheting the binders, are not major traumatic events. There can be a degree of bursitis that can occur from repetitive actions at or above shoulder height. The labral tearing is often degenerate and there was not a traumatic event that would have caused the labral tearing. The spinoglenoid ganglion is secondary to the labral tearing. While excessive physical manual work can predispose people to degenerate tearing, the action of tightening the binders and undoing turntables I do not consider to be a major stressor to the shoulder as a traumatic event but as a repeated action certainly could contribute to bursitis.
7.3Is likely that any of our client’s current reported shoulder symptoms related to a symptomatic pre-existing condition?
There are clearly pre-existing degenerative changes within Mr Rogers’ shoulder, being the AC joint degenerative changes and the degenerate labral tearing with the associated spinoglenoid ganglion. The stated workplace events are very unlikely to have caused these conditions.
7.4Are there any other health issues or lifestyle factors that would explain our client’s reported symptoms?
The pulmonary embolism, shortness of breath, the workers’ compensation conflict, psychological issues regarding his son’s suicide and subsequent inquest have all contributed to a degree to his pain and poor recovery.
Having reviewed the content of Mr Edwards’ 15 August 2014 report, on 24 April 2015, Linfox’s solicitors wrote to Mr Rogers’ solicitors, advising them that:
The respondent will be contending that liability should not have been accepted under s 14 of the SRC Act for a right superior and postero-superior labral tear. In making this contention, the respondent relies on Telstra Corporation v Hannaford [2006] FCAFC 87. [Emphasis added]
On 20 May 2015, a directions hearing took place, at the request of the parties, before Deputy President Hotop. It is unfortunate that the issue of jurisdiction (and the Telstra v Hannaford argument) was not dealt with by Deputy President Hotop at this directions hearing.
On 10 June 2015 (five days before hearing), Linfox’s solicitors advised Mr Rogers’ solicitors that it had abandoned the argument that Mr Rogers was no longer incapacitated as from 20 December 2013.[3] That is, the original basis of the Right Shoulder Condition Determination (namely that Mr Rogers was fit for suitable employment duties) would no longer be defended by Linfox and that in No. 2014/0170 Linfox would henceforth instead seek to rely on the decision of the Full Federal Court in Telstra v Hannaford (2006) 151 FCR 253 (Telstra v Hannaford), to argue that liability should never have been accepted by Linfox under s 14 of the SRC Act for Mr Rogers’ “right superior and postero-superior labral tear”. In contrast Mr Rogers’ position is that Telstra v Hannaford has no application in this case.[4]
[3] This was repeated in opening by counsel for Linfox at the first day of the hearing on 15 June 2015.
[4] There no longer being a dispute that Mr Rogers is incapacitated, most of the medical evidence in the T-documents, filed by Linfox in relation to No. 2014/0170, is now irrelevant.
In short, in Telstra v Hannaford, the Full Federal Court held that the Tribunal could revisit a Comcare decision accepting liability where the later decision under review by the Tribunal was dependent upon that acceptance of liability. That is, Telstra v Hannaford is authority for the proposition that the Tribunal is not inhibited from making findings of fact inconsistent with findings in earlier proceedings provided the facts in the earlier matter relate to the matters being considered in the current claim.
Briefly, the facts in Telstra v Hannaford are as follows:
· Mr Hannaford was a Telstra employee who had been engaged in the installation of cabling in swampy area in the area of Yamba in New South Wales, where mosquitos were prevalent;
· On 3rd May 2002, Mr Hannaford lodged a claim for compensation;
· On 8 May 2002, a determination was made under s 14 of the SRC Act whereby Telstra accepted liability because the then available medical opinion was that Mr Hannaford was suffering from Ross River Fever. Thereafter, payments were made to Mr Hannaford pursuant to both s 16 and s 19 of the SRC Act;
· In July 2003, Mr Hannaford lodged a claim for permanent impairment compensation pursuant to s 24 and s 27 of the SRC Act;
· Further medical testing revealed that whatever illness had afflicted Mr Hannaford in 2002, it was not Ross River Fever;
· Telstra's position in the Tribunal hearing which followed was that this evidence, even though it was inconsistent with the earlier acceptance of liability in the s 14 determination, should be utilised by the Tribunal in assessing his claim for permanent impairment. That approach was accepted by the Tribunal;
· On appeal to a single judge of the Federal Court, that approach was rejected; and
· Telstra’s appeal to the Full Federal Court was upheld.
In upholding Telstra’s appeal, the Full Federal Court (Heerey, Dowsett and Conti JJ) concluded:
59. I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened:
(i) To make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation;
(ii) To do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 or 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii) To do so in circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra on 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.
[Emphasis added]
Therefore, the new issues before the Tribunal in relation to No. 2014/0170 are whether, through Telstra v Hannaford, Linfox can argue that liability should not have been accepted under s 14 for a “right superior and postero-superior labral tear” and, if so, whether that will simply result in a variation to the accepted condition from “right superior and postero-superior labral tear” to “soft tissue injury to right shoulder” or some similar description.
The scheme of the SRC Act is for a determination as to initial liability under s 14 of the SRC Act (here, the Section 14 Determination), a determination under s 19 of the SRC Act as to the weekly payments that will be made, if the weekly payments are to be changed a determination under s 61 of the SRC Act (here, the Right Shoulder Condition Determination), if the claimant request that a s 61 determination be reconsidered, a reconsideration of that determination under s 62 of the SRC Act (here, the Right Shoulder Condition Decision) which constitutes the “reviewable decision” and if a party disputes the “reviewable decision”, a s 64 application for review to the Tribunal.
In this case, the Right Shoulder Condition Decision (being the “reviewable decision”) was to affirm the Right Shoulder Condition Determination which provided that “you have capacity to earn in suitable employment…..and that your ability to earn in the said employment means you are no longer entitled to incapacity payments”: refer to paragraph 20 above. Consequently, payments to Mr Rogers ceased from 20 December 2013 accordingly.
The “Applicant’s Supplementary Statement of Facts, Issues and Contentions”, dated 12 June 2015, state:
12.In [Telstra v] Hannaford, by contrast, there was a determination made that the employer was “no longer liable to pay compensation in respect of” the Ross River fever, that liability had ceased (see [22] and [23]). The AAT decision (which was ultimately upheld) reworded the decision to read. “As at 31 October 2003, the [Ross River fever] has resolved and has ceased to result in incapacity for work…” Yet the clear evidence was that Mr Hannaford did not have and had never had Ross River fever.
13.The effect of the AAT decision is that the AAT was not estopped by a s 14 determination that remained in force, from upholding a subsequent determination under s 19 which was inconsistent with it. In this case, the s 19 determination was not inconsistent with a s 14 determination and Telstra v Hannaford has no application.
14.Even if it were otherwise, the inevitable conclusion from the medical evidence is that some sort of soft tissue injury to the shoulder was suffered on 4 April 2013. Accepting the contention would justify nothing more than substituting a varied diagnosis.
Further, the “Applicant’s Submissions”, dated 26 June 2015, state:
6.The history of the Hannaford matter is complex and can best be appreciated by reading the first instance decision (Hannaford v Telstra Corporation Limited [2005] FCA 1298), as well as the Full Court decision (Telstra v Hannaford (2006) 151 FCR 253). However, it is quite clear that the reviewable decision raised a causation issue. The key passage in the reconsideration on 10 December 2003 (reproduced at [23] Full Court decision) is “I do not consider the information provided by Dr Mathers is supportive of the assertion that the claimant continues to suffer the effects of Ross River Fever. I consider Dr Potter has provided a very well reasoned and detailed opinion as to the probable nature of any symptoms currently reported by the claimant, and I accept his view that these symptoms do not arise out of any physically based injury for which compensation would be payable.”
7.The delegate was accordingly not denying that symptoms were present but was saying that on the medical evidence they were not caused by Ross River Fever.
8.The reviewable decision in this case was the opposite; the delegate was denying that there was incapacity and there was no hint of reliance on any lack of causal connection.
9.The odd situation arose that the s 14 determination that Mr Hannaford did have Ross River Fever was inconsistent with the s 19 determination that he did not…. 10. The two cases are not comparable. In this case, the s 19 determination was not inconsistent with a s 14 determination, and the applicant takes no such objection. The respondent now seeks to retrospectively amend the s 19 determination, relying on material which only emerged in 2014. It is submitted that the proper course would be for the respondent to issue a new determination relying on the new material and the new argument, and then there can be the necessary first tier and second tier decisions before the matter gets to the AAT.
Similarly, the “Applicant’s Submissions in Response”, dated 7 August 2015, state:
8.The respondent.....seek[s] to argue that the Hannaford case validates the course of action it chose to take. The applicant says:
(a)The important feature is not that “evidence” about the non-existence of Ross River Fever was being utilised by the Tribunal; it was that the whole issue was being considered by the Tribunal.
(b)The Tribunal in that case was reviewing a reviewable decision which itself had dealt with that issue…
(c)What was remarkable about the outcome was that the s 19 decision that the worker did not have Ross River Fever contradicted the intact s 14 determination that he did. The Full Court found that that was not a problem……There is no parallel in this case.
The Tribunal accepts counsel for Mr Rogers’ submissions, as set out above, concerning the application of the Full Federal Court’s decision in Telstra v Hannaford to this case.
In addition, the Tribunal agrees with counsel for Mr Rogers’ contention that if Linfox wanted to rely on the medical report of Mr Edwards, dated 15 August 2014, to support the contention that liability should not have been accepted under s 14 of the SRC Act for a “right superior and postero-superior labral tear”, it had two options: (i) it could have reconsidered the Section 14 Determination under s 62 of the SRC Act; or (ii) it could have issued a new determination as to entitlements under s 19 of the SRC Act, relying not on the previous argument that Mr Rogers was no longer incapacitated but on a new argument that Mr Rogers’ incapacity was no longer the result of the injury or, indeed, “an” injury – applying Telstra v Hannaford, such a determination could assert that there had not been an injury in the first place. However, Linfox did neither of those things. As counsel for Mr Rogers pointed out, instead, on 24 April 2015, Linfox announced that it proposed to introduce a question of ab initio liability (not dealt with in the Right Shoulder Condition Determination, the Right Shoulder Condition Decision or the T-documents filed with the Tribunal) into the hearing then only seven weeks away.[5]
[5] See the “Applicant’s Submissions in Response”, dated 7 August 2015, at [3] and [4].
As argued by counsel for Mr Rogers, the Tribunal considers that it is not open to Linfox to rely on a causation argument not raised in the Right Shoulder Condition Determination or in the Right Shoulder Condition Decision. It is simply beyond the Tribunal’s jurisdiction to journey beyond the scope of these two decisions.[6]
[6] See the “Applicant’s Submissions”, dated 26 June 2015, at [4].
Consequently, in No. 2014/0170, the Tribunal sets aside the decision under review (i.e. the Right Shoulder Condition Decision).
Pulmonary Embolism Condition (2014/2992)
In No. 2014/2992, the issue remains whether Linfox is liable to pay Mr Rogers compensation for the pulmonary embolism condition under s 16 and s 19 of the SRC Act.
Section 4(3) of the SRC Act provides:
(3)For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a)Compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)It was reasonable for the employee to have obtained that medical treatment in the circumstances.
Accordingly, for the pulmonary embolism condition to amount to an “injury” within the meaning of s 4(3) of the SRC Act, the requisite causal link between the pulmonary embolism condition and the surgery or cortisone injection, which Mr Rogers underwent as a result of his shoulder injury on 4 April 2014 (and for which liability was accepted in the Section 14 Determination), must be established.
Counsel for Mr Rogers’ submits that, on the balance of probabilities, a connection has been shown and that the pulmonary embolism condition is related to Mr Rogers’ shoulder surgery and subsequent immobility of the shoulder.[7] In contrast, counsel for Linfox contends that “the evidence at its highest upon proper and full consideration does not establish any causal link between that condition and employment factors”[8] and that “the surgery and treatment thereafter are not causally linked to the workplace events but to the underlying degenerative conditions of the shoulder”.[9]
[7] See the “Applicant’s Submissions”, dated 26 June 2015, at [14] and the “Applicant’s Submissions in Response”, dated 7 August 2015, at [21].
[8] See the “Submissions on Behalf of the Respondent, filed on 31 July 2015, at 25(f).
[9] See the “Submissions on Behalf of the Respondent, filed on 31 July 2015, at [62].
In support of his position, Mr Rogers relies on the statement made by Dr Kruger that:
My impression is that John’s PE is likely to be related to his shoulder surgery which was quite recent before the PE.
and to the fact that in his report, dated 10 April 2014, Professor Goodman states that Dr Kruger’s statement that the pulmonary embolism is likely related to the shoulder surgery:
is not incorrect.
The “Applicant’s Submissions”, dated 26 June 2015, state:
15.Dr Goodman’s tentative acknowledgement of Dr Kruger’s statement is only strengthened by the information about the immobilization of the shoulder which went on for at least nine weeks (Mr Edwards said that his notes showed immobilization on 30 July 2013) and maybe three months (as the applicant recalls).
The “Submissions on Behalf of the Respondent”, filed on 31 July 2015, state the following in relation to the evidence of Dr Kruger:
51.A necessary starting point is a consideration of the evidence relied upon by the Applicant from Dr Kruger. It should not be overlooked that Dr Kruger is not an accredited specialist, but a registrar. More importantly, his opinion on any connection between the pulmonary embolism and the surgery is expressed as follows:
“My impression is that John's PE is likely to be related to his shoulder surgery which was quite recent before the PE.”
Liability in this jurisdiction has never been predicated upon “impressions”. Further, Dr Kruger is mistaken about the timing of the shoulder surgery. It occurred on 26th May 2013 and not in July 2013 as he states. It should not be overlooked that the Applicant did not present Dr Kruger for cross-examination or at the very least undertake any of the following steps: namely to secure any more reports from him in which “impressions” could be clarified and commented upon, correct dates for surgery could be clarified, and at least some response by way of a report could have been gathered to the further reports of Dr Goodwin.
52.Finally, I do not comprehend Dr Kruger to be attaching the importance to the immobility as set out in the Applicant's submissions.
53.For these reasons, and further reasons set out below, no weight can be attributed to the solitary report from Dr Kruger. [Emphasis added]
As submitted by counsel for Linfox, Professor’s Goodman’s statement that “Dr Kruger’s statement is not incorrect” must be considered in the context of all of Professor Goodman’s evidence, both written and oral.[10] However, I do not accept counsel for Linfox’s attempt to discredit Dr Kruger’s evidence on the basis that he is “only” a “Haematology Registrar”, as opposed to an “accredited specialist”: refer to paragraph 61 above. Further, I do not accept counsel for Linfox’s submission that “no weight can be attributed to the solitary report from Dr Kruger”: refer to paragraph 61 above. In this regard, I refer to the report of Professor Goodman, dated 15 January 2014, wherein he states:
The issues of pulmonary embolus, prognosis, recurrence etc. fall within the expertise of a respiratory physician and specialist haematologist. Information should be obtained from these sources if considered desirable.
[10] See the “Submissions on Behalf of the Respondent”, filed on 31 July 2015, at [55].
As stated above, in the “Factual & Procedural Background” (refer to paragraph 30), Professor Goodman provided a medical report to Linfox’s solicitors, dated 10 April 2014, wherein he confirmed that Mr Rogers had sustained a pulmonary embolism condition and recorded that Mr Rogers had received treatment with respect to the aforementioned condition in the RPH on 27 October 2013. The task undertaken by Professor Goodman was to consider any connection between the Pulmonary Embolism Condition and the shoulder surgery and the cortisone injection.
In his report dated 10 April 2014, in referring to Dr Kruger’s report, dated, 16 January 2014, Professor Goodman states:
Dr Kruger’s statement that the pulmonary embolus is likely related to the shoulder surgery is not incorrect since that is the one event that had the potential to be associated with deep vein thrombosis and pulmonary embolus. I have pointed out the difficulty in making the association in Mr Roger’s case. However the association, no matter how rare, must be taken into account as Dr Kruger has apparently done. The potential contributing morbidities such as thrombophilia are equally important as issues. It would appear these studies will not be carried out until Mr Rogers is due to come off anticoagulant therapy which should be April 2014. [Emphasis added]
Further, in his report, dated 10 April 2014, Professor Goodman stated the following in relation to the relationship between Mr Rogers’ shoulder surgery and the Pulmonary Embolism Condition:
(a) Shoulder surgery;
The shoulder surgery was carried out in June 2013. The episode of chest pain and shortness of breath was approximately four months later. This represents quite a significant time gap between the procedure, the presumed deep vein thrombosis and the event of pulmonary embolization. It is this area that the apparent failure to carry out duplex venous studies of the upper limb veins is problematic. A positive result would have settled the issue beyond doubt. We must assume that deep vein thrombosis caused the embolus in October. If it was related to the shoulder surgery as claimed, the area of thrombosis have been well established and easily seen on duplex scanning. It is worth nothing (sic) that Mr Rogers did not complain of any symptoms in the right upper limb suggestive of venous thrombosis/occlusion such as swelling, temperature or colour changes in the right upper limb.
Thus although an association exists between shoulder surgery and upper limb deep vein thrombosis/pulmonary embolus, Mr Rogers’ case is atypical and can neither be confirmed nor excluded. [Emphasis added]
Finally, in his report, dated 10 April 2014, Professor Goodman commented on the relationship between cortisone injection to Mr Rogers’ right shoulder and the Pulmonary Embolism Condition, as follows:
(b) Cortisone injection to the right shoulder; or
There is a close temporal relationship between the cortisone injection performed on 8 October and the onset of symptoms approximately five days later. As I stated above I cannot find any report in the literature of deep vein thrombosis following a cortisone injection into the shoulder area - not in itself an uncommon procedure. Expert advice from the radiologist who carried out the procedure would allow clarification as to whether the path of the needle or the volume of fluid injected had the potential to abut the axillary/brachial veins. Again duplex study at the time of the pulmonary embolus should have demonstrated whether there was an abnormal area of axillary or brachial vein which has the potential to be disturbed by an adjacent or non-adjacent injection of cortisone.
(c) Any other aspect of Mr Rogers’ accepted right shoulder condition.
Dr Kruger is stating two clinical entities which has the potential to be associated, albeit extremely rarely, as I have described above. Considering the rarity of the association and the previous history of deep thrombosis in 2009, one would have anticipated that a thrombophilia profile would have been a prime investigation, instituted prior to commencing anticoagulant therapy. A positive result would not have influence treatment although it may have influenced the recommended duration of anticoagulant therapy particularly the need for future anticoagulant prophylaxis.
As stated above, I cannot provide any connection between cortisone injection and deep vein thrombosis embolus. [Emphasis added]
In a later report, dated 14 May 2015, Professor Goodman wrote:
Mr Rogers described that the right upper limb was immobilised for up to three months, and certainly limb immobilization and splinting are associated with an increased incidence of deep vein thrombosis and thus pulmonary embolus.
Counsel for Mr Rogers made the following contention in relation to the above statement of Professor Goodman:
That justifies a conclusion that the connection (which Dr Goodman had made before knowing about the immobilisation) had been given extra weight, even though he did not acknowledge that in cross-examination.
As with the other evidence of Professor Goodman, the above statement should not be read in isolation but instead be read in the context of his evidence as a whole. In his report, dated 14 May 2015, Professor Goodman proceeds to state:
Whether you remain of the opinion that although an association exists between shoulder surgery and upper and lower limb deep vein thrombosis/pulmonary embolus, Mr Rogers' case is atypical and can neither be confirmed nor excluded.
I accept that Mr Rogers’ case is atypical with regard to an association between diagnosis of pulmonary embolus and the clinical history of right shoulder injury. It must be accepted that a definitive diagnosis or pulmonary embolus was made. It has also to be accepted that no attempt appears to have been made to reveal supportive evidence of the deep vein thrombosis presumably was the source of the embolus.
(i)In the period following surgery, Mr Rogers arm was immobilised. He had no symptoms of swelling or discolouration in the limb to suggest he had either axillary or subclavian vein thrombosis, which could have been the subsequent source of embolus. Of course he may well have had thrombosis in these veins, which was not completely occlusive and therefore asymptomatic. In addition, because the right arm was not being used for any activity, partial venous occlusion would be expected to remain asymptomatic. There is however no hard evidence to confirm this clinical scenario. There is no evidence of a superficial venous collateral circulation in the right upper chest or shoulder area, which would have accompanied occlusion of the deep veins. [Emphasis added]
As submitted by counsel for Linfox, when Professor Goodman’s expressions of opinion are considered along with the remainder of his evidence (both written and oral), the only conclusion open is that there is simply insufficient evidence to establish any connection between Mr Rogers’ pulmonary embolism and the potential employment related factors, namely the surgery (on 26 May 2013) and the cortisone injection (on 8 October 2013).[11] As such, Mr Rogers’ pulmonary embolism condition is not an “injury” within the meaning of s 4(3) of the SRC Act.
[11] See the “Submissions on Behalf of the Respondent”, filed on 31 July 2015, at [58].
In relation to deciding whether the requisite causal connection exists, the Tribunal finds that the detailed medical reports and oral evidence of Professor Goodman is to be preferred to the one medical report provided by Dr Kruger, which, to reiterate, simply states “My impression is that John’s PE is likely to be related to his shoulder surgery which was quite recent before the PE”. Dr Kruger did not provide any additional, more detailed, reports and was not available for cross-examination at the hearing.
For completeness, the Tribunal notes that an acceptance of Dr Nicholas Anastas’ medical report, dated 9 February 2015, along with his oral evidence at hearing would lead to the same result because implicit in Dr Anastas’ evidence is that Mr Rogers’ surgery and treatment thereafter are not causally linked to the workplace events but to Mr Rogers’ underlying degenerative conditions of the shoulder.
Consequently, in No. 2014/2992, the Tribunal affirms the decision under review (i.e. the Pulmonary Embolism Condition Decision).
decision
For the above reasons, the Tribunal:
(i)In No. 2014/0170, sets aside the decision under review (i.e. Right Shoulder Condition Decision) and substitutes that decision with the decision that Mr Rogers is entitled to incapacity payments under s 19 of the SRC Act from 20 December 2013; and
(ii)In No. 2014/2992, affirms the decision under review (i.e. the Pulmonary Embolism Condition Decision).
I certify that the preceding 74 (seventy four) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ..(Sgd) A Tran......................................................................
Administrative Assistant
Dated 4 September 2015
Date(s) of hearing 15 - 18 June 2015 Date final submissions received 7 August 2015 Counsel for the Applicant
Mr D Bruns Solicitors for the Applicant Ms K Dempster
Dwyer Durack LawyersCounsel for the Respondent Mr C Clark Solicitors for the Respondent Ms R Waldron - Hartfield
Moray & Agnew
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