KENWARD and JOHN HOLLAND PTY LTD
[2011] AATA 701
•11 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 701
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2240
GENERAL ADMINISTRATIVE DIVISION ) Re WILLIAM KENWARD Applicant
And
JOHN HOLLAND PTY LTD
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member and
Dr G Maynard, RFD, MemberDate11 October 2011
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and substitutes its decision that:
(a) under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), the respondent is liable to provide rehabilitation and to pay compensation to the applicant for incapacity for work or impairment from the aggravation, as set out in paragraph 52 of these reasons, of his right supraspinatous tendonitis/subacromial bursitis and mild right acromioclavicular joint synovitis; and
(b) costs are payable to the applicant in accordance with the Tribunal’s general practice direction.................[Sgd]........................
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Claim for right shoulder effusion – Diagnosis of “right supraspinatous tendonitis/subacromial bursitis” and “mild right acromioclavicular joint synovitis” – Whether injury or disease – Disease contributed to, significantly, by employment with the respondent – Temporary aggravation of shoulder condition - Respondent liable to pay compensation or provide medical treatment for incapacity or impairment – Decision under review set aside
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 7,14
Australian Postal Corporation v Burch (1998) 85 FCR 264
Baker v Australian Postal Corporation [2003] AATA 987.Kennedy Cleaning Service Pty Ltd v Petkoska (2000) 2000 CLR 286
Zickar v MGH Plastic Industries Pty Ltd (1995) 14 ALR 156
REASONS FOR DECISION
11 October 2011 Mr R G Kenny, Senior Member and
Dr G Maynard, RFD, MemberBACKGROUND
1. On 12 October 2009, William Kenward (“the applicant”) completed a claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) for compensation in relation to “R shoulder effusion”. He alleged that this occurred on 12 February 2009 and was related to his employment with John Holland Pty Ltd (“the respondent”). On 29 January 2010, a claims manager with Self Insured Services Australia (“SISA”), for and on behalf of the respondent, determined that there was no liability under s 14 of the Act. That determination was affirmed in a reviewable decision on 8 April 2010.
LEGISLATION AND ISSUES
2. Mr Jeremy Wiltshire, counsel for Mr Kenward, submitted that the diagnosis for the claimed condition was “right mild tendonitis/subacromial bursitis” and “mild right acromioclavicular joint synovitis”. He submitted that this was an “injury”, as defined in s 5A of the Act, which arose out of or in the course of Mr Kenward’s employment with the respondent. Alternatively, he submitted that the condition was a “disease” as defined in s 5B of the Act, which was contributed to, significantly, by that employment. Mr Clark, for the respondent, did not dispute the diagnosis of Mr Kenward’s shoulder condition but submitted that, regardless of whether it was an “injury” or “disease” under the Act, there was no liability on the part of the respondent under s 14 of the Act. Under that provision, the respondent will be liable to provide rehabilitation and to pay compensation to Mr Kenward for incapacity for work or impairment from his shoulder condition if it is an injury or disease[1] as defined below.
[1] “Injury” s defined to include a “disease”: see s 5A(1)(a) of the Act.
3. Amendments to the Act in 2007[2] commenced operation on 13 April 2007. It is not in dispute that the matter is to be determined under the amended Act. The relevant definition provisions, in so far as relevant, read:
[2] See Act No 54 of 2007.
4(1)ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease has the meaning given by section 5B.
injury has the meaning given by section 5A.
…
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) ...
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.
(2)...
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.
4. An issue for the Tribunal is the timing of the onset of Mr Kenward’s shoulder condition. To that end, s 7(4) of the Act reads:
(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.
5. For the purposes of that provision, Mr Wiltshire submitted that the date of onset was 2 February 2009, when Mr Kenward made a complaint to the respondent’s safety officer; or, alternatively, on 8 September 2009, when he first sought medical treatment for his shoulder.
EVIDENCE
Mr Kenward
6. Mr Kenward was employed by the respondent from December 2006 until 4 February 2009. Previously, he had served in the Royal Australian Navy (“RAN”) for four years as a stoker and, shortly before his RAN discharge in 1978, as a cook. After leaving the RAN he worked as a general labourer for four years. He was employed by Queensland Railways for six years until January 1988 and was then a self-employed concreter until 1993. Thereafter, apart from a period of five years driving a truck casually for Hertz Rentals, he was employed variously as a builder’s labourer, concreter, rigger, steelfixer or dogger. He was engaged in a range of activities including cleaning plant and heavy equipment, concreting, screeding, carrying stores, sand blasting, scaffolding assembly, spray painting and general labouring work. After finishing work with the respondent, Mr Kenward took a vacation period of about three months and then worked for NRG Gladstone Operating Services Pty Ltd (“NRG”) for about seven weeks. This was described by him as relatively light work as the project was shutting down.
7. With the respondent, Mr Kenward was engaged as a labourer on the Tanna coal terminal project in Gladstone until it finished and was then re-engaged by the respondent to work at Dalrymple Bay on the upgrade of the coal terminal. He worked as a steelfixer, rigger, dogger, concreter and grouter, and also used a Macaroy bars stressor. Most of the time he was involved in mixing grout and applying it to finish concrete surfaces with two others in a team. The grout sand, cement and water, and was mixed with a hand-loaded cement mixer. This was the only time in Mr Kenward’s many years of concreting that hand mixing was required, as it was usually delivered to a site in ready-mixed form by truck. He described this as “heavy and repetitive work” involving the repeated use of his shoulders and harder than any other work he had previously done. The team would load the mixer with a shovel, pour the mixed grout into a wheelbarrow, wheel it for up to 50 metres to the application point and then manually apply the grout mix. Other strenuous work was in the stressing of Macaroy bars. These were steel rods threaded through the concrete beams which comprised the surface of the pier. Once inserted, the bars were tensioned with a heavy jack and held in place by a steel plate and nut. The grouting and stressing work was rotated with other tasks, such as doing form work for kerbing on the edges of the pier, carrying steel grid mesh to the pier and constructing rail lines. The time spent on grouting varied from one or two to five days per week. The work at Dalrymple Bay was similar to that at Gladstone. One difference was that the mode of applying the grout changed from sweeping it into crevices to using a watering can to pour it in. Mr Kenward described the latter mode as much heavier work.
8. Mr Kenward first experienced shoulder pain while at Dalrymple Bay in late January or early February 2009. He did not report this to his supervisor but told the safety officer, Simon McDonald, who advised that he would “put it in the book” and suggested that he see an on-site medic. Mr Kenward declined and advised that he would wait and “see how it went”. He said that he never went to see doctors although, in his evidence, he agreed that he had been to see Dr Jovita Ramos, a doctor in Sarina, in March 2008 for back pain and a sore throat. He returned to work after speaking with Mr McDonald but the shoulder pain did not subside thereafter. A few days later, his position with the respondent was terminated. He then took a holiday for three months, during which his shoulder remained sore. He took painkillers which he purchased from the chemist, but also took medication which had been prescribed for his wife by her doctor. His pain remained with him since its initial onset in January or February 2009 and he felt it mainly at night. Typically, he would watch television and sleep in a seated position because his shoulder ached when he lay down.
9. On returning to Gladstone, Mr Kenward applied unsuccessfully for further work with the respondent. In May or June 2009, he was employed by NRG in Gladstone as a rigger and dogger, which he described as lighter work than with the respondent. After ceasing work with NRG, Mr Kenward assisted his son with landscaping in August 2009. He was screeding a pathway of sand and loam when his shoulder became very painful. On 8 September 2009, he attended his treating doctor, Dr Beryl Turner, to discuss possible asbestos exposure and mentioned his sore shoulder. He did not indicate that his shoulder was associated with his employment with the respondent but with the screeding in his son’s yard. Mr Kenward agreed that he advised Dr Turner that he felt tingling in the fingers and that that this only started after screeding the pathway. In his statement he wrote that, in the following days, he realised that omission and arranged to see Dr Turner on 16 September 2009 to rectify that error. In his evidence, Mr Kenward said that the second visit to Dr Turner was to get the results of an MRI arranged after his first visit to Dr Turner. After these had been discussed, Dr Turner asked if there was anything else and his wife, who had accompanied him, reminded him to mention his shoulder to Dr Turner. Mr Kenward then contacted Mr McDonald, the safety officer with the respondent, who forwarded a compensation claim form to him.
10. Mr Kenward continues to feel shoulder pain which varies in intensity and may even disappear if he is able to have a good night’s sleep. He described numbness in his hand and a burning feeling in his fingers. At the hearing, he agreed that he was able to move both of his arms and said that he is sometimes pain-free. Mr Kenward said that he did not believe that the screeding in August 2009 was the significant factor in his symptoms at that time and that it was a continuation of the impact from his work with the respondent.
11. In relation to a consultation with hand and upper limb surgeon Dr Mark Robinson, Mr Kenward agreed that he intended to convey to Dr Robinson that his job with the respondent was terminated because of his shoulder. He said that many workers of the respondent were terminated before Christmas because the job came to an end. However, he believed that his job ended because of his shoulder. He agreed that he told Dr Robinson he was a cook in the RAN even though he served mainly as a stoker. He also agreed that he incorrectly advised Dr Robinson that, when he started to get pain in his shoulder, he continued working for a few days with discomfort before reporting it to the safety officer. He agreed that the severity of the pain increased when he was screeding and that, on the first visit to Dr Turner, he did not mention work with the respondent.
12. Mr Kenward also agreed that, although his shoulder was painful and he was taking his wife’s prescribed painkilling medication, he did not disclose these matters at the pre-employment medical examination relating to work with NRG. He agreed that he had signed, as truthful, a declaration which included that incorrect information. He described these as “little lies” which he told in order to get the job with NRG.
Craig and Shane Kenward
13. Craig and Shane Kenward are the sons of Mr Kenward. Both of them had experience in work projects with their father and they described him as a hard worker. Craig worked for the respondent at Dalrymple Bay and observed his father carrying out grouting activities. Shane also worked at Dalrymple Bay for another contractor but saw his father from time to time on grouting duties. Both of them described the grouting as heavy work. They both understood that their father was doing lighter work with NRG than with the respondent.
14. Craig became aware of Mr Kenward’s shoulder problem a short time after it occurred as they lived close by and spoke often. He saw his father daily over the next few months and Mr Kenward continued to complain of pain. It limited Mr Kenward’s capacity to play with his grandchildren although he was able to pick them up with difficulty. Craig was aware that, after his Dalrymple Bay contract, Mr Kenward had been interested in getting work at Abbot Point in the Bowen area.
15. Shane became aware of Mr Kenward’s shoulder problem shortly after it happened because they were also in contact on almost a daily basis. He recalled that his father stayed with him at Gladstone later in 2009 for a few weeks and assisted in doing some work in his garden. This included screeding sand for a pathway, and he said that this caused Mr Kenward shoulder pain. He said that Mr Kenward had difficulty lying down to sleep and often slept in a recliner chair.
Simon McDonald
16. Mr McDonald was the safety officer on the Dalrymple Bay coal terminal project. He recalled that on a safety walk in February 2009 he was approached by Mr Kenward, who advised him that he had a sore right shoulder. Mr McDonald offered to take him to an on-site medic but Mr Kenward declined, stating that he would leave it for a few days to see how it went. Mr McDonald recorded an entry in his diary but viewed it as a passing complaint rather than a formal report of a workplace injury. Mr McDonald was aware of a significant reduction in the number of the respondent’s staff at that time and he said that Mr Kenward’s termination was unrelated to his shoulder complaint.
17. In a statement dated 17 November 2009, Mr McDonald wrote that Mr Kenward’s complaint was made on 12 February 2009. Subsequently, he realised that this was an incorrect date as he became aware that Mr Kenward’s employment with the respondent ended on 4 February 2009.
18. In a statement dated 4 March 2011, Mr McDonald wrote that he was telephoned by Mr Kenward on 15 September 2009 and advised that he had seen a doctor in relation to his shoulder. Mr Kenward also advised him that he had been “back on the tools” since working for the respondent. Mr McDonald said at the hearing that he understood that to mean that Mr Kenward had been undertaking manual labour. On 15 September 2009, Mr McDonald advised Mr Kenward that he would send him a compensation claim form but also told him that he may have left his claim “a bit late” because of delay and doing concreting work since he experienced shoulder pain. .
Peter Erezuma
19. Mr Erezuma was the site supervisor of the Tanna project in Gladstone and project manager on the Dalrymple Bay coal terminal project. He was involved in the supervision of Mr Kenward’s work. He was in a position to observe the work-related activities of Mr Kenward as the sites were relatively small in area. Mr Erezuma stated that the respondent’s standard practice for reporting injuries was for the employee to advise his direct supervisor. Mr Kenward did not advise him of any shoulder injury in 2009 and he became aware of it in 2010, when advised of Mr Kenward’s compensation claim by Mr McDonald. He agreed that advising a safety officer of an injury would be sufficient to meet the respondent’s injury notification policy. He said that Mr Kenward was laid off on 4 February 2009 because that was the end of the job and not because of his shoulder.
20. Mr Erezuma agreed that Mr Kenward was doing grouting work at Dalrymple Bay but denied that it was heavy work, or that it was repetitive. This was because it was rotated with other tasks and would have amounted to about 40% of Mr Kenward’s work. He was a member of a team of three men and a fourth was rostered on when needed. The grouting functions, including the mixing, were shared among the crew and Mr Erezuma believed that the application of grout was much easier than work associated with concreting. He agreed that Mr Kenward was required to handle the jack when stressing the Macaroy bars but assessed the weight of the device as 20 kg and the handling time as less than 10 minutes on one or two occasions per week. He denied that heavy lifting was a feature of Mr Kenward’s work because any such activity was done by crane.
21. Mr Erezuma said that, at Dalrymple Bay, the grout was emptied into a barrow by one man, wheeled a distance of no more than seven metres to where it was required by a second man and a third man would transfer the grout into small watering cans. Those tasks were rotated through the team. All team members would then apply the grout and this was followed by sweeping the area clean.
Medical evidence
Dr Beryl Turner, Occupational Physician
22. In evidence was a report, dated 20 December 2009, from Dr Turner and her clinical notes. She saw Mr Kenward on 8 September 2009 and noted that he was concerned about asbestos exposure. His second complaint at that time was for “right shoulder pain and tingling into the fingers”. She noted that it “started whilst screeding at home”. She recorded it as having been “present for 1 month” and “not improving”. She arranged for Mr Kenward to have an MRI in relation to his right shoulder, noting “? rotator cuff lesion”. She also included the notation: “NOT WORKCOVER”.
23. Mr Kenward’s next consultation with Dr Turner was on 16 September 2009. She wrote: Mr Kenward “now remembers there was an injury at work on 12 Feb 09 when he was concreting” with the result that “the shoulder was sore for a few days”. She noted that pain returned with doing heavy work and that it recently “flared up again when he has been concreting at home”. She referred him to an orthopaedic surgeon.
24. In her report, Dr Turner’s opinion was that Mr Kenward’s condition was an injury related to screeding because it involves “a reaching posture of the shoulders whilst pulling forcefully toward oneself”. She wrote that, if Mr Kenward had ongoing pain since the incident in February 2009, it would be the same injury but that, if there were no ongoing problems, it would be a new injury.
Dr Mark Robinson: hand and upper limb surgeon
25. Dr Robinson saw Mr Kenward on 13 July 2010 and provided opinion on the development of Mr Kenward’s shoulder condition in reports dated 28 July 2010 and 1 November 2010. He also provided a further report, dated 17 August 2010, relating to assessment.
26. In his first report, Dr Robinson recorded the history of Mr Kenward’s injury at Dalrymple Bay. He understood that the respondent terminated his employment because of the shoulder problem. Dr Robinson wrote that Mr Kenward “started developing discomfort in his right shoulder” and “continued working for a few days with the discomfort before reporting to the safety officer”. He diagnosed “right supraspinatous tendonitis/subacromial bursitis” and “mild right acromioclavicular joint synovitis”. He noted that there had been no single incident of trauma and referred to Mr Kenward’s long work history in construction work. He concluded that there was an element of age-related degeneration contributing to his present condition. He described the onset of symptoms at work as an aggravation of a pre-existing asymptomatic age and activity related degeneration, with 50% attributable to aggravation at work with the respondent. He noted that Mr Kenward had three months holiday after his position with the respondent was terminated and then undertook light duties with NRG for seven weeks before re‑aggravating his shoulder “levelling sand in his own garden”.
27. In his report in November 2010, Dr Robinson indicated that he had read the report of orthopaedic surgeon Dr Gale Curtis but wrote that this did not change his earlier opinion. He confirmed that the occupational activities undertaken by Mr Kenward in the two years with the respondent made a significant contribution to the aggravation of his ongoing symptoms.
28. In his evidence, Dr Robinson conceded that the word “discomfort” attributed to Mr Kenward in his report was his own terminology but he agreed that it reflected the level of symptoms described by Mr Kenward. He confirmed that Mr Kenward had advised that he had been an RAN cook for five years and that he had understood that the shoulder problem was the reason for termination of Mr Kenward’s position with the respondent. Dr Robinson agreed that the allocation of 50% of the shoulder problem to that work was dependent on the work history given to him by Mr Kenward. Dr Robinson had not been told by Mr Kenward of a tingling sensation in his fingers and thought any such symptom would be more related to a neck problem. Dr Robinson considered that wheelbarrow work would place no stress on the shoulders but that shovelling material into the mixer would do so. When referred to a history of some 34 years of construction work before Mr Kenward’s time with the respondent, as well as the nature of his work and his complaint to Dr Turner in September 2009, Dr Robinson revised his opinion on contribution to the aggravation of the shoulder condition to work with the respondent to about 30 – 35%.
Dr Gale Curtis: Orthopaedic surgeon
29. Dr Curtis saw Mr Kenward on 17 December 2009 and completed reports on 5 January 2010 and 10 October 2010.
30. In his first report Dr Curtis wrote that Mr Kenward hurt his shoulder as a concrete steel worker with the respondent, with a fairly sudden onset of pain in the right shoulder region which he reported it the safety officer and then kept on working. He attended Dr Turner on 16 September 2009 as it was time to obtain a medical opinion because the pain did not settle. Dr Curtis noted that Mr Kenward completed only a short period of work after he finished with the respondent. Dr Curtis considered that, while the shoulder symptoms were felt in February 2009, it would have come on over a period and that previous work doing the same sorts of jobs would been contributory as it was “an attrition type injury from repeated use”.
31. In his subsequent report, Dr Curtis described Mr Kenward’s condition as a disease process with slow onset which was progressive in nature and not related specifically to work with the respondent. He considered that the exacerbation while working with the respondent was temporary and would have lasted for six to eight weeks. He described continuing symptoms as being related to the ongoing degenerative process. In his evidence, he described Mr Kenward as having a ‘type II acromion’ which made the shoulder more susceptible to injury, but he thought this made only a minor contribution to Mr Kenward’s condition. He described type II acromion as a developmental variant of the shoulder with increased bone curvature which increased the risk of tendonopathy.
32. Dr Curtis said that he had not been made aware of Mr Kenward’s screeding of sand in his son’s garden or his first consultation with Dr Turner on 8 September 2009.
33. Dr Curtis agreed that he had described Mr Kenward’s condition as an injury on his first report. This was related to a roughening in the joint which leaves its imprint on the tendon as it traverses it, with each such occasion constituting an injury. He said that it was equally valid to describe the condition as an injury or a disease because it occurs as a continuum but it also has a beginning. Dr Curtis said that the presentation in February 2009 was likely to have been an aggravation but that it was due to his work with the respondent, his work history, his age and his type II acromion. He considered that 30% of the condition was constitutional and that 70% was due to attritional injury through his whole working life.
Dr Jovita Ramos
34. The clinical notes of Dr Ramos for 4 March 2008 and 11 March 2008 were in evidence. The first of these refers to consultations with Mr Kenward for upper back pain and a sore throat for three weeks. The later notes report that Mr Kenward came in to discuss the results of tests and Dr Ramos noted that his “sore throat has settled pretty well”.
Other evidence
35. In evidence was a Pre-Placement Health Assessment form completed by Mr Kenward on 24 April 2009 prior to his employment with NRG. In this document, Mr Kenward declared that the information he provided was correct and that he had not withheld any information about his past or present health. In that document, Mr Kenward declared that he was receiving no medical treatment and was taking no regular medication. He declared that he had no health problems which limited his daily activities. In the part of the form completed by an examining doctor, it is noted that he had no abnormality of joint involvement, repetition injury or overuse syndrome. In a section where advice was to be given of “any abnormality”, no response was provided.
36. Also in evidence was an affidavit from David Hoffman, dated 1 March 2010. Mr Hoffman worked with Mr Kenward for seven weeks from approximately 6 June 2009. He described the work as involving no manual lifting of heavy loads.
CONSIDERATION
Mr Kenward’s evidence
37. Mr Kenward’s evidence is that he experienced a sore shoulder in January/February 2009 while working for the respondent. A diary record of complaint of the shoulder soreness was made by Mr McDonald. However, the date of that complaint is not certain. In his claim form, Mr Kenward nominated 12 February 2009 as the date of injury. Mr McDonald also recorded that date in his diary but conceded that this was an incorrect entry date. It is not in dispute that Mr Kenward’s employment with the respondent ended on 4 February 2009.
38. After speaking with Mr McDonald, Mr Kenward was able to continue working until his position was terminated. Both Mr Kenward and his sons described a continuation of symptoms in his shoulder thereafter. The next record of Mr Kenward referring to his shoulder problem was when he consulted Dr Turner on 8 September 2009, where he did not implicate his work with the respondent. In the meantime, he had worked for NRG, where he made no mention of his shoulder problem in his pre-employment medical assessment.
39. Mr Clark submitted that there were material inconsistencies in Mr Kenward’s evidence which served to cast doubt on his veracity as a witness. Mr Wiltshire conceded that there were some inconsistencies in Mr Kenward’s evidence but submitted that these were explained by his imperfect memory in relation to dates and conversations. He submitted that Mr Kenward was truthful in relation to the material aspects of his claim.
40. We accept that Mr Kenward has not been consistent in the statements he has made, in particular, to medical practitioners.
41. Both Dr Curtis and Dr Robinson were given the impression by Mr Kenward that his employment with the respondent was terminated because of his complaint of a shoulder problem. We are satisfied that this was not the case. Both Mr Erezuma and Mr McDonald gave evidence that his employment ceased on 4 February 2009 because the project for which he had been contracted was completed. This occurred within days of his advice to Mr McDonald that his shoulder was sore and before any other notification had been made to the respondent or any medical investigation had been conducted.
42. Dr Curtis was not made aware of the problem Mr Kenward had with his shoulder after screeding a pathway at his son’s house. Dr Robinson and Dr Turner recorded that as occurring in Mr Kenward’s own home. Dr Turner, on her first consultation with Mr Kenward, recorded his shoulder problem as starting with the screeding and as having been present for one month. Mr Kenward did not advise her of any relationship between the shoulder problem and his employment with the respondent. Indeed, Dr Turner noted that Mr Kenward’s shoulder complaint was “not workcover”, a matter of particular significance in light of Dr Turner’s specialty as an occupational physician. Mr Kenward implicated his employment on his second visit to Dr Turner but, rather than describing a continuity of symptoms from 2009 onwards, he advised Dr Turner that the shoulder had been sore for a few days in 2009, returned when he did something heavy and flared up when he was concreting at home.
43. There was also inconsistency in what Mr Kenward said about the reason for his second consultation with Dr Turner. In his statement, he wrote that he realised he had omitted, during his first consultation with her, to mention his work with the respondent and so arranged to see Dr Turner on 16 September 2009 to rectify that error. His oral evidence was that the second visit to Dr Turner was to get MRI results and that, after these had been discussed, Dr Turner asked if there was anything else. It was at this point that Mr Kenward’s wife reminded him to mention his shoulder.
44. Mr Kenward claimed in his evidence that he is “old school” and does not go to doctors. Of course, he did arrange to see Dr Turner and this related to the potentially serious matter of asbestos exposure. Nonetheless, he did report his shoulder pain to her. He also attended Dr Ramos in March 2008 with a complaint of back pain and a sore throat.
45. Mr Kenward’s evidence was that he had the problem with his shoulder from February 2009 onwards. As noted above, that is not what he told Dr Turner. The history is also inconsistent with the information given to NRG on 24 April 2009 when he declared that the information he provided in an assessment form was correct and that he had not withheld any information about his past or present health. In that document, Mr Kenward declared that he was receiving no medical treatment, was taking no regular medication, had no health problems which limited his daily activities and had no abnormality of joint involvement, repetition injury or overuse syndrome. In his evidence, Mr Kenward conceded that his declaration had been untruthful and said that the false statements were “little lies” to enable him to get work with NRG.
46. Mr Kenward’s evidence was that he did not undertake heavy work at NRG as it was in shut-down mode, unlike the situation with the respondent. However, Mr McDonald noted in September 2009 that Mr Kenward advised him that he had been “back on the tools”, which Mr McDonald understood to mean that he had been doing manual labour. Craig Kenward’s evidence was that, after his Dalrymple Bay work concluded, Mr Kenward had been interested in getting work at Abbot Point in the Bowen area.
47. It will be seen below that we are satisfied on the evidence concerning the nature of Mr Kenward’s employment responsibilities and the evidence of Dr Robinson and Dr Curtis that he suffered an aggravation of a shoulder problem before he made complaint to Mr McDonald. However, we have concerns about those aspects of Mr Kenward’s evidence which relate to the continuity of symptoms of shoulder pain from February 2009 onward to August/September 2009.
Aggravation of right supraspinatous tendonitis/subacromial bursitis” and “mild right acromioclavicular joint synovitis”
48. The definitions of the terms ‘injury’ and ‘disease’ in the Act are set out above. They are defined in relation to their respective modes of causation rather than in terms of the characteristics of an injury or of a disease. The causation test for ‘injury’ is less onerous than that for ‘disease’. With the former, a temporal relationship is sufficient so long as the injury arose out of or was attributable to employment.[3] For ‘disease’, a quantified contribution from work is required in that there must be a significant contribution. Dr Robinson referred to Mr Kenward’s shoulder condition as an injury and also as part of a disease process. Dr Curtis used alternative diagnoses as an injury or a disease. Dr Turner described Mr Kenward’s shoulder problem as an injury. Mr Wiltshire submitted that the Act is beneficial legislation and that a worker is able to contend whichever characterisation is more beneficial to his application.[4] He also submitted that an injury does not require an external cause.[5] That is consistent with the analysis provided by Dr Curtis.
[3] See Australian Postal Corporation v Burch (1998) 85 FCR 264 at 268 – 9.
[4] Citing Zickar v MGH Plastic Industries Pty Ltd (1995) 140 ALR 156 at 187 and Baker v Australian Postal Corporation [2003] AATA 987.
[5] See Kennedy Cleaning Service Pty Ltd v Petkoska (2000) 200 CLR 286 at 298, 306, 308.
49. Dr Curtis described a work-related aggravation in 2009 with contribution from Mr Kenward’s work for the respondent, general work history, age and a type II acronium. He considered that 70% of this was due to attrition throughout his whole working life. He did not ascribe a proportion of contribution to his work with the respondent. Dr Robinson described the onset of Mr Kenward’s shoulder symptoms at work as an aggravation of a pre-existing asymptomatic age and activity related degeneration, about one-third of which was related to his work with the respondent. Both Dr Robinson and Dr Curtis described Mr Kenward’s condition as an aggravation. Because they also described it as a degenerative process, we are satisfied that the condition is a disease rather than an injury.
50. We have noted the evidence of Mr Erezuma and Mr McDonald about the nature of Mr Kenward’s work duties. However, on the evidence of Mr Kenward and his two sons, we are satisfied that the duties performed by Mr Kenward, particularly in relation to mixing grouting material, were heavy and repetitive and, indeed, more so than in his previous periods of involvement in the construction industry. Mr Kenward was employed by the respondent for more than two years in a variety of tasks but with a high proportion of that time in grouting. The medical evidence is that there was contribution to his shoulder condition from the many years of manual labour undertaken before working for the respondent, thereby pointing to a predisposition to further shoulder problems. There is no evidence of relevant employment activities or other matters affecting Mr Kenward’s health. We accept the evidence of Dr Robinson as to the proportion of contribution by Mr Kenward’s work with the respondent to the aggravation of Mr Kenward’s right supraspinatous tendonitis/subacromial bursitis and mild right acromioclavicular joint synovitis. We are also satisfied that, having regard to the factors listed in s 5B(2) of the Act, that degree of contribution is more than material and, therefore, a significant contribution to that aggravation.
51. We have detailed inconsistencies in Mr Kenward’s evidence and we have concerns about those aspects which relate to the continuity of symptoms of shoulder pain from February 2009 onward to August/September 2009 and beyond. Mr Kenward continued to work after the complaint of his shoulder problem to Mr McDonald; he expressed dissatisfaction with having his position terminated shortly afterwards, suggesting a willingness to continue working for the respondent; he gave no indication of a shoulder problem when engaged by NRG; he was willing and able to undertake the screeding work at his son’s house; he advised Dr Turner that his shoulder problem “started” during that screeding and had been “present for 1 month” and made no reference to his work with the respondent until a subsequent consultation with her; and he indicated to his son that he was interested in a work engagement at Abbot Point.
52. We are satisfied that Mr Kenward did not experience ongoing symptoms in his shoulder after February 2009 but that he again experienced a further aggravation of his shoulder condition while screeding his son’s pathway. In that respect, we have noted Dr Turner’s description of the difficult nature of screeding. With an absence of continuous symptoms from February 2009, we have also noted her opinion that the injury for which Mr Kenward consulted her was a new injury unrelated to his employment with the respondent. Dr Robinson described a permanent aggravation of Mr Kenward’s shoulder condition in February 2009. However, that is not supported by Dr Turner’s evidence or by the evidence of Mr Kenward’s activity after that time. Dr Curtis’ opinion was that the aggravation while working for the respondent was temporary and likely to last for up to eight weeks. We accept his evidence in that regard and are satisfied that the aggravation of Mr Kenward’s shoulder condition did not extend beyond March 2009.
53. We are satisfied that, in January or early February 2009, Mr Kenward suffered a temporary aggravation of an age and activity-related right supraspinatous tendonitis/subacromial bursitis and mild right acromioclavicular joint synovitis which is a ‘disease’ as defined in s 5B of the Act, significantly contributed to by his work with the respondent. In accordance with s 7(4)(b) of the Act, it is taken to have been sustained on the day it first resulted in impairment. We are satisfied that this was on the day that he notified Mr McDonald of his shoulder problem. There is uncertainty about that date. However, it was a few days before his employment with the respondent ceased and, for convenience, we are satisfied that this was on 1 February 2009.
DECISION
54. The Tribunal sets aside the decision under review and substitutes its decision that:
(a)under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and the definition of “disease” in s 5B of the Act, the respondent is liable to provide rehabilitation and to pay compensation to Mr Kenward for incapacity for work or impairment from the aggravation, as set out in paragraph 52 of these reasons, of his right supraspinatous tendonitis/subacromial bursitis and mild right acromioclavicular joint synovitis; and
(b)costs are payable to the applicant in accordance with the Tribunal’s general practice direction.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member and Dr G Maynard, Member
Signed: .......................[Sgd]....................................................
Danielle Armstrong, Research AssociateDate of Hearing 12 and 13 September 2011
Date of Decision 11 October 2011
Counsel for the Applicant Jeremy Wiltshire
Solicitor for the Applicant James Goddard, Maurice Blackburn Lawyers
Counsel for the Respondent Charles Clark
Solicitor for the Respondent Suzy Dole, Sparke Helmore Lawyers
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