Kerin and Australian Postal Corporation
[2005] AATA 228
•17 March 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 228
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2002/391
) A2002/403
GENERAL ADMINISTRATIVE DIVISION ) Re BRADLEY KERIN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr J.W. Constance, Senior Member Date 17 March 2005
Place Canberra
Decision A2002/391
The decision of the Australian Postal Corporation made 11 September 2002 is set aside. In substitution, the Tribunal decides that the Australian Postal Corporation is liable to pay to Mr Kerin compensation under section 16 of the Act in respect of the cost of the acromioplasty and rotator cuff repair of the left shoulder and under section 19 of the Act in relation to time incapacitated for work being the period 25 June 2002 to 1 November 2002.
A2002/403
The decision of the Australian Postal Corporation made 16 July 2004 is set aside. In substitution the Tribunal decides that as at the date of this decision the injury to Mr Kerin’s left shoulder sustained on or about 5 November 2001 had ceased to result in incapacity for work and the requirement for medical treatment.
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CATCHWORDS
COMPENSATION – whether work materially contributed to tear of supraspinatus tendon – whether tear contributed to by an incident with ULD gate or by ongoing mail sorting duties – whether work aggravated a pre-existing injury to the supraspinatus tendon – whether respondent liable for shoulder operation and compensation for time away from work when applicant recuperating from operation – decisions set aside
Safety, Rehabilitation and Compensation Act 1988 – s 16, 19
Commonwealth v Beattie (1981) ALR 369
Tippett v Australian Postal Corporation 27 (1998) AAR 40
Australian Postal Corporation v Bessey (2001) 32 AAR 508
Willcocks v Comcare (2001) 66 ALD 119
Smith v Federal Commissioner of Taxation (1987) 164 CLR 513
Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472
O’Grady v Northern Queensland Co. Ltd (1990) 169 CLR 356
REASONS FOR DECISION
17 March 2005
Mr J.W. Constance, Senior Member
1. Mr Kerin is seeking a review of a decision of the Australian Postal Corporation denying his claim for compensation for the cost of an operation to his left shoulder and for his wage loss incurred during the subsequent period of recuperation. I have decided that this decision should be set aside and that in substitution a decision be made that Mr Kerin is entitled to such compensation.
2. I have also decided that a decision that an injury to Mr Kerin’s left upper back sustained on 5 November 2001 had resolved by 4 September 2002 should be set aside and in substitution be decided that as at present there are no ongoing effects of the injury.
EVIDENCE AND FINDINGS OF FACT
3. Mr Kerin was born on 3 March 1965 and is now years old.
4. In 1986 he commenced employment by the Corporation as a postal clerk in the retail area and has continued to be employed by the Corporation ever since. On 8 March 1999 he took up a new position as a mail sorter on night shifts. These shifts vary between 7 and 8 hours.
5. From about December 2000 Mr Kerin began to experience pain in his left shoulder. This pain was associated with activities at work (such as mail sorting) and away from work (such as hanging out washing). He felt the pain when raising his arm, both above and below shoulder level.
6. Mr Kerin had suffered from an episode of left shoulder pain in mid 1995[1] but he said in evidence, which I accept, that he did not suffer further pain in his shoulder until December 2000. He played rugby league until he was 21, he played tennis 3 or 4 times per year and swam “quite a bit” until 2001. Until mid 1998 he attended a gym. I accept his evidence that so far as he was aware he did not injure his left shoulder whilst taking part in any of these activities.
[1] Dr Tyler’s notes, exhibit R3.
7. One of the pieces of equipment used by Mr Kerin in his mail sorting duties was a unit loading device, commonly known as a ULD. A ULD is basically a steel mesh crate for transporting bulk mail. It is designed to be collapsed by undoing catches on the side panels and folding them down. This reduces the size of the crate when it is being transported whilst empty.
8. Mr Kerin gave evidence that during his shift on 7 or 8 October 2001 he attempted to pull up one of the sides of a ULD. The side would not release as it should. Two fellow-workers had tried before him without success and he exerted considerable force in endeavouring to dislodge the side of the crate. The side again did not release and Mr Kerin said that at that time he hurt himself and “it felt like I’d pulled – pulled something in here, and I felt like I was bleeding, maybe, inside the arm. But I couldn’t see anything”.[2] Mr Kerin says that he completed this shift and continued to work his normal shifts until he went on annual leave on 20 October 2001.
[2] Transcript p.21.
9. After the incident with the ULD and before he went on holidays the pain in his shoulder was “getting worse and worse”. He also said that whilst on holidays he experienced shoulder pain and in particular referred to suffering pain whilst playing cards such that it was difficult for him to shuffle the pack.
10. On the night of 5 November 2001 Mr Kerin returned to work after his leave. During a shift sometime between 5 November 2001 and 9 November 2001 an incident occurred which Mr Kerin described as follows:
“And I was sorting the standard letters, and I was only doing it for about half an hour, and then I found I couldn’t lift up my arm, and I couldn’t hold – hold the mail, or when I did, I felt a sharp burning up my shoulder. And I didn’t know what was causing it. I just – I ended up just putting the mail on the bench in front of me and I was just sorting like this. I couldn’t use this arm. I had no power in it. I’d lost all power in it. And as the night went on, the muscle behind my neck, down here – trapezius – sort of got swollen and it got worse and worse.”[3]
[3] Transcript p.19.
Mr Kerin reported this incident to his manager, Mr Rodda before completing his shift At Mr Rodda’s request Mr Kerin completed a claim form[4] and saw his general practitioner, Dr Tyler, and Dr Shroot, a general practitioner appointed by the Corporation. Both medical visits took place on 9 November 2001 and Mr Kerin worked his normal shifts both before and in the weeks following these appointments. He says that he was “working with pain a lot of the time.”[5]
[4] Exhibit R28.
[5] Transcript p.33.
11. On 12 November 2001 Mr Kerin lodged his claim for compensation.[6] This claim referred to described the injury as “muscular pain in left shoulder” and included the statement that “this has happened over time not one particular incident.” The claim made no mention of the incident the previous month involving the ULD.
[6] Exhibit R23.
12. During the following weeks Mr Kerin attended a number of sessions of physiotherapy as recommended by Dr Shroot.
13. In April 2002 the pain worsened and Mr Kerin again saw Dr Tyler who referred him to Dr Howse, a sports physician. At this time Mr Kerin was off work for 2 days because of the pain. On 23 April 2002 Mr Kerin saw Dr Howes who ordered a MRI arthrogram of the left shoulder. This was carried out on 29 May 2002 and showed “an effectively full thickness chronic degenerative tear of the anterolateral SST [supraspinatus tendon] measuring approximately 2cm without retraction, wasting or free passage of contrast into the bursa”. [7]
[7] Exhibit R25.
14. In turn, Dr Howse referred Mr Kerin to Dr Creer, an orthopaedic surgeon. Mr Kerin was initially seen by Dr Creer on 25 June 2002. On 25 June 2003 Dr Creer performed an acromioplasty and rotator cuff repair to Mr Kerin’s left shoulder. He reported that Mr Kerin was found to have “an extensive partial thickness tear involving the anterior to middle part of the supraspinatus tendon”.[8] After the surgery Mr Kerin underwent the usual physiotherapy programme.When he was last reviewed by Dr Creer (on 9 October 2003) Mr Kerin was “still complaining of moderate medial paraspinal/scapular muscular soft tissue pain”[9].
[8] Exhibit A3.
[9] Exhibit A3 p.2.
15. On the advice of Dr Creer Mr Kerin ceased work on 25 June 2003 and did not return until 2 November 2003.
16. At the hearing the Corporation disputed that Mr Kerin injured himself on 7 or 8 October 2001 in the way he described. It was put squarely to Mr Kerin in cross-examination that the incident simply did not occur. In its submissions on this point the Commission relied on the failure of Mr Kerin to complete an incident report and his failure to describe the incident to either Dr Tyler or Dr Shroot (when he saw them in November 2001), to the physiotherapist in 2001 or to Dr Howse in April 2002.
17. It does appear that from June 2002 onwards Mr Kerin did mention the ULD incident to various medical practitioners when giving his medical history although he was not precise about the date. The first reference in records kept by any of the practitioners is in a form completed on 25 June 2002 by Mr Kerin for Dr Creer and is as follows:
“I had hurt my shoulder whilst either lifting parcels, opening faulty ULD gates or simply just sorting mail continuously holding mail in my left hand aggravating my shoulder until such a point I reported it on 5/11/01”[10]
[10] Exhibit R6.
18. Mr Kerin gave evidence that during the shift when the incident occurred he told his supervisor, Ted Barker, and fellow workers, Tim Russell, John Coleman, Cathy Schumacher and Paul Ebner, that he thought he may have hurt his arm. He said that Tim Russell and Paul Ebner were standing near him at the time as each of them had attempted to pull up the gate on the UDL before he attempted to do so.
19. Messrs Russell, Coleman and Ms Schumacher gave evidence supporting what Mr Kerin said had happened and were cross examined. A statement by Mr Ebner was tendered[11] which also supported Mr Kerin’s version of the event. Counsel for the Commission did not seek to cross-examine Mr Ebner.
[11] Exhibit A13.
20. I accept the evidence of Mr Kerin and Ms Schumacher that sometime after the ULD incident Mr Kerin asked his four colleagues to sign a statement as to the incident, which they did. This document is exhibit A12 and reads in part:
“The co-workers below recall me mentioning to them that I injured my left arm/shoulder whilst lifting out a U.L.D gate.”
The document is signed by Timothy Russell, Cathy Schumacher, Paul Ebner and John Coleman. Ms Schumacher said that they discussed the incident between themselves before signing the document. The fact that this discussion took place and this document was signed explains why the witnesses called on behalf of Mr Kerin have the detailed recollections they do of what at the time would have appeared to be a relatively insignificant incident.
21. The Corporation called Mr Kerin’s supervisor, Mr Barker. Mr Barker had no recollection of having been told of the incident during the shift and had no entry of any such incident in a diary he kept to record such workplace incidents. However Mr Barker did readily concede that he may have been told of the incident by Mr Kerin whilst he (Mr Barker) was walking away, and so he may not have heard what was said to him.
22. I am satisfied that, on the balance of probabilities, the incident involving the ULD did occur as described by Mr Kerin but I am not satisfied as to the precise date of the incident. Roster records produced by the Corporation indicate that not all staff Mr Kerin believed were present were rostered for duty on 7 and 8 October 2001.[12] Mr Kerin and the other witnesses who gave evidence as to the incident impressed me as being honest in recounting what happened to the best of their individual recollections. I accept also that Mr Barker was being honest when he said that Mr Kerin may have told him of the incident in circumstances when he may not have heard what he was told. I also take into account that Mr Barker very properly informed the Tribunal in his initial statement that “I remember a couple of years ago that the Applicant told me something about his arm or shoulder hurting.”[13]
[12] Exhibit R17.
[13] Exhibit R18.
23. In making the finding that I have referred to I accept Mr Kerin’s explanation as to why he did not give details of the incident to the medical practitioners earlier than he did. He said that at the time of the incident he did not think the injury was as serious as it turned out to be and that it was after he returned from holidays that he felt the pain in his shoulder become “really dramatic”. When Mr Kerin filled in the claim form in November 2001 he thought his pain was a result of repetitive mail-sorting and was concentrating on this in describing his complaints to the various doctors. He said that it was not until he was filling in the Patient Information Sheet for Dr Creer on 25 June 2002[14] that he started to think that the incident with the ULD may have been relevant. I accept this explanation.
[14] Exhibit R6.
24. Mr Kerin described his normal shift duties as involving the unloading of the ULD’s containing mail from delivery trucks, weighing it and then unloading it from the ULD’s. Parcels, which may weigh up to 25kg were put on shelves, some of which were above shoulder height. The heavier parcels were lifted by two people. After about an hour of sorting parcels he would then unload and sort large letters. This process was undertaken standing and on the evidence before the Tribunal did not involve Mr Kerin raising his left arm above chest height. Sorting large letters normally took about 2 hours. Then Mr Kerin would start sorting standard letters. Plastic tubs containing about 300 letters each would be lifted out of the ULD’s and transported to the sorting stations by trolley. The tubs of letters were then stacked on the floor next to the sorting stations. The sorting station normally used by Mr Kerin was a bank of pigeon holes with a desk in front and a shelf to the left of the sorter to hold one tub of mail for immediate sorting. A photograph of the workstation commonly used by Mr Kerin is exhibit R8.
25. In giving evidence Mr Kerin described and demonstrated how he would sort standard letters. Whilst seated he would lean down and to his left and pick up a tray of letters with his left hand. He would be assisted by a co-worker sitting at the station next to him, each taking hold of one end of the tub and lifting it onto the shelf between them. If another person was not able to assist Mr Kerin would stand up and lift the tub using both hands. Mr Kerin would take a bundle of letters out of the tub with his left hand, take the letters one by one with his right hand and place each letter into the appropriate pigeon-hole.
26. The movement which Mr Kerin demonstrated in lifting a tub of mail from the floor was such that had he straightened up maintaining his left arm in the position it was when he took hold of the tub, his arm would have been about chest height. When actually sorting mail his left hand appeared to move through about 90 degrees horizontally. He did not demonstrate any movement involving his lifting his left hand vertically whilst sorting.
27. I do not have evidence of the weight of a tub of mail. However, based on the evidence of Mr Barker, the Postal Delivery Controller for the area, the trays were made of plastic or paper and held approximately 400 standard letters. Mr Barker also gave evidence, which I accept, that a sorter in Mr Kerin’s position would need to pick up a tray of letters every 5 - 7.5 minutes and would continue do this over a period of 3.5 - 4 hours per shift.
MEDICAL EVIDENCE
28. Mr Kerin called Dr Howse, Dr Creer and Professor Nade to give evidence. He also relied upon reports from Dr Howse,[15] Dr Creer,[16] Professor Nade,[17] Dr Woods[18] and Dr Poulos.[19]
[15] Exhibit A2.
[16] Exhibit A3.
[17] Exhibits A6, A7.
[18] Exhibit A5.
[19] Exhibit A8.
29. There was no dispute that Mr Kerin suffered impingement of his left shoulder and a tear of the left supraspinatus tendon. Dr Howse was of the opinion that the action of repetitive mail sorting aggravated the condition of the shoulder. He said that rotation of the shoulder (ie. bringing the arm out and across the front of the body) would be an aggravating activity if repetitive and that rotation through 90 degrees would be significant.[20] Dr Howse gave evidence that mail sorting would aggravate the symptoms of pain rather than making the underlying tear any larger.[21] He did concede in cross-examination that having been told of Mr Kerin’s activities of freestyle swimming and lifting weights he was less confident in his opinion than previously.
[20] Transcript 2/2/05 p.9.
[21] Transcript 2/2/05 p.10.
30. Dr Creer’s view was that when Mr Kerin first experienced pain in his shoulder (December 2000) it was probably the start of the impingement stage which then progressed to the degenerative process and the tearing of the tendon. He said that arm action at chest height “is likely to aggravate this impingement”.[22]
[22] Transcript 3/2/05 p.7.
31. In response to a description of Mr Kerin’s action in leaning down to pick up a tub of mail, Dr Creer said that this action “quite frequently”[23] brings the arm to chest height or shoulder height. He said that if this was done repetitively and the arm then rotated across the body then this can cause impingement.
[23] Transcript 3/2/05 p.8.
32. Dr Creer gave evidence that without repetitive activity an injury such as that suffered by Mr Kerin was quite uncommon.[24] He also said that Mr Kerin had a slightly greater downwards curvature of the acronium than is normal and that this may increase the likelihood of impingement in a young person engaged in repetitive activity.[25]
[24] Transcript 3/2/05 p.9.
[25] Transcript 3/2/05 pp9, 10.
33. In relation to the ULD incident Dr Creer said that a severe reefing injury to the shoulder could cause a tear to the ligament but that this would result in severe pain and very limited movement of the arm for a considerable time.
34. Professor Nade examined Mr Kerin on 29 August 2003 for the purpose of these proceedings. He was of the opinion that it was unlikely that Mr Kerin’s work caused the degenerative changes to his left rotator cuff but that it was unusual for such degenerative changes to occur in a 36 year old without a significant injury having occurred.[26]
[26] Report 29/8/03, exhibit A6.
35. Professor Nade gave a useful description of impingement as follows:
“…impingement is that there’s some irritation, there’s some restriction to that motion usually associated with pain due to irritation, swelling, inflammation of some type between the head of the humerus and the acromion which overlies it and in that space between the two is the supraspinatus tendon and the subacromial bursa and that’s what’s meant by impingement is restriction of the range of movement associated with pain while performing that movement.”[27]
[27] Transcript 3/2/05 p.18.
36. Dr Whittaker assessed Mr Kerin on behalf of the Corporation on 15 July 2002. At that time he was “not of the opinion that repetitive lifting and sorting of mail is a significant contributing factor to Mr Kerin’s current symptoms…To suggest that sorting mail could cause such pathology is illogical.”[28] In the same report Dr Whittaker expressed the opinion that Mr Kerin’s shoulder condition had been present “for quite a few years” but that any work-related symptomatic aggravation was “likely to have been temporary.”
[28] Report 16/7/02 exhibit R19.
37. In his oral evidence Dr Whittaker expressed the view that there had been a tear of the tendon subsequent to the rotator cuff degeneration and that the tear did require surgery. He said that it is not common to have a full thickness tear of the rotator cuff in a person of Mr Kerin’s age, but that it is certainly not unheard of.
38. Counsel for Mr Kerin described to Dr Whittaker the movement Mr Kerin had described in lifting the tubs of mail from the floor. Dr Whittaker was adamant that this did not involve the arm being in the anatomical position necessary to cause the tendon to tear.
39. Dr Burke, consultant occupational physician, also gave evidence on behalf of the Corporation. He assessed Mr Kerin on 24 February 2003. On 4 March 2003 Dr Burke reported that:
“In my opinion, on the balance of probabilities, it is unlikely that the diagnosed condition has been caused or aggravated in a material degree by some incident or aspect of his employment.”[29]
[29] Exhibit R2.
40. In reaching decisions as to the facts I must be satisfied of those facts on the balance of probabilities. Having taken into account the evidence of Mr Kerin and all the medical evidence I am not satisfied that either the impingement of the shoulder or the tear to the supraspinatus tendon was an injury which arose out of, or was suffered in the course of, Mr Kerin’s employment. None of the medical witnesses suggested that the actions of mail sorting gave rise to the initial impingement and pain. Whilst I am satisfied that the incident with the ULD took place as Mr Kerin has described, I am not satisfied that this incident caused the tearing of the tendon. I accept Dr Creer’s evidence that had the incident involved such tearing there would have been “severe” pain and limited arm movement. I also accept the evidence of Dr Whittaker that the action involved in attempting to pull up the gate is not associated with rotator cuff tears.[30] Mr Kerin did not experience these symptoms but described a feeling of flooding or bleeding within his arm, which is consistent with a tearing of the muscle as described by Dr Creer:
“Yes, if you tear a muscle, people get bleeding into it and so if he tore a muscle around his shoulder, even tendons when they tear they’ve got a blood supply so they bleed. So people can get that feeling, but does it lead you to a specific diagnosis? No, it usually indicated that they’ve damaged something and it’s bled, what typically is often extremely difficult to try and determine.” [31]
[30] Transcript 4/2/05 p12.
[31] Transcript 3/2/05 p.11.
41. On the basis of the evidence of Mr Kerin and Dr Creer, I am satisfied that as part of his employment Mr Kerin was involved in repetitive movement of his left arm and shoulder in picking up the tubs of mail and then in sorting the letters. I am also satisfied that he was engaged in repetitive movements of his left arm whilst sorting large letters and parcels. Mr Kerin impressed me as a truthful witness and I accept his description of his work activities.
42. I find that the aspects of Mr Kerin’s employment (as set out in the preceding paragraph) aggravated his left shoulder condition by causing it to become more painful to the extent that it required surgery to alleviate the pain. I am satisfied that that until the surgery was carried out this increase in pain was permanent and not just temporary in nature.
43. I prefer the evidence of Dr Howse and Dr Creer on the question of aggravation to that of Dr Whittaker. I accept the opinion of Dr Howse that the action of mail sorting, including the lifting of the tubs of mail, aggravated the condition and that a rotation of 90 degrees was significant in this regard. I also accept the evidence of Dr Creer that arm action of chest height was likely to aggravate the shoulder impingement. In his reports and in giving evidence Dr Whittaker does not appear to have been fully informed as to the extent of the activities involved in the mail sorting which Mr Kerin undertook. He appears to have based his opinion that the views of other medical practitioners were “illogical”[32] on the assumption that Mr Kerin’s mail sorting simply involved holding mail in the left hand whilst sorting with the right hand. The evidence before me shows that this was not a valid assumption.
[32] Exhibit R19 p.6.
THE LAW AND ITS APPLICATION TO THE FACTS
44. Section 16 of the Act requires the Corporation to compensate Mr Kerin in relation to the cost of reasonable medical treatment obtained “in relation to the injury”. Section 19 provides for compensation to an injured workman in the event of incapacity “as a result of an injury.” It is under these sections that Mr Kerin claims to be entitled to compensation for the cost of the surgery to repair his left shoulder and for the income he has lost whilst he was hospitalized and recovering from the operation.
45. “Injury” is defined in section 4 to include:
“an aggravation of a physical…..injury……suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;”.
46. In Commonwealth v Beattie (1981) ALR 369 a Full Court of the Federal Court considered the meaning of “aggravation” in the definition of “injury” in the Compensation (Commonwealth Government Employees) Act 1971 (Cth). For present purposes this is the same provision as that under consideration. The Court held that “pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”[33]
[33] At p.378.
47. The Federal Court considered the meaning of “aggravation” in the definition of “injury” in the present Act in Tippett v Australian Postal Corporation 27 (1998) AAR 40. Mr Tippett claimed that his left shoulder rotator-cuff impingement was aggravated by repetitive changing of gears during his work as a van driver. The cause of the impingement could not be determined but his doctor and his physiotherapist expressed the opinion that it may have been aggravated by changing gears as part of his employment. At page 42 the Court said:
“The short, but somewhat difficult, point of law is whether the Tribunal, having found that Mr Tippett’s shoulder injury “became symptomatic” when he was operating the mail delivery van in the course of his employment, was also required to find that Mr Tippett had suffered an aggravation of an injury being an aggravation that arose out of or in the course of his employment.”
The Court considered the relevant authorities, including the Beattie and Federal Broom Co cases, and concluded:
“……the Tribunal erred in law. That is to say, the Tribunal approached the case before it without giving the word “injury” its proper and required meaning. It failed to have regard to the fact that part of its function was to determine whether the pain suffered by Mr Tippett (being part of his injury) had been caused or aggravated by his employment.”[34]
[34] P.45.
48. The decision of the Federal Court in Australian Postal Corporation v Bessey (2001) 32 AAR 508 makes it clear that if an aggravation is temporary and resolves leaving the underlying (non-work related) condition no worse then there is no continuing injury. This decision was cited with approval in Willcocks v Comcare (2001) 66 ALD 119 at 121-122.
49. On the basis of the findings of fact set out I am satisfied that Mr Kerin has suffered an aggravation of an injury to his left shoulder and that that aggravation arose out of his employment by the Corporation.
50. It is therefore necessary to consider whether Mr Kerin is entitled to be compensated for the cost of the operation pursuant to section 16 of the Act. Section 16(1) provides:
“Where an employee suffers an injury, [the Corporation] is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment for the employee to obtain in the circumstances), compensation of such amount as [the Corporation] determines is appropriate to that medical treatment”.
51. As already indicated I am not satisfied that the tear to the supraspinatus tendon which was repaired during the operation was caused by Mr Kerin’s employment. However I have found that the operation also involved an acromioplasty which was necessary to relieve the impingement in the shoulder. I have to decide whether the operation is properly described as treatment “in relation to” the aggravation of the left shoulder condition.
52. Both the High Court and the Federal Court have considered the phrase “in relation to”. The relevant principles which emerge from these decisions are:
(a) the words are wide in their meaning and by themselves simply signify that there be some connection between two matters[35];
(b) the connection which the phrase imports is “a matter of degree”[36];
(c) the connection required is determined by having regard to the context of the phrase and the scope of the Act.[37]
[35] Smith v Federal Commissioner of Taxation (1987) 164 CLR 513 at 533; Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 at 487.
[36] O’Grady v Northern Queensland Co. Ltd (1990) 169 CLR 356 at para 10.
[37] O’Grady v Northern Queensland Co Ltd (supra).
53. Section 16 is part of beneficial legislation and in accordance with the decisions referred to above it should be interpreted broadly unless context requires it to be read down in some way. It could be argued that the operation was treatment of the underlying condition rather than the pain which was aggravated by Mr Kerin’s employment. However had Parliament intended such a restrictive interpretation presumably the section would have referred to treatment “of” the injury rather than treatment “in relation to” the injury.
54. I am satisfied that the operation carried out by Dr Creer on 25 June 2003, being a repair of the tear of the supraspinatus tendon and an acromioplasty, was reasonable medical treatment in relation to the injury suffered by Mr Kerin. It follows that the time off work taken by Mr Kerin to recuperate from the operation is compensable under section 19 of the Act.
55. On 10 October 2002 the Corporation decided to cease liability for Mr Kerin’s condition described as “strained muscles left upper back”. On 16 July 2004 this decision was reconsidered and it was decided that Mr Kerin was not entitled to compensation for the period 4 September 2002 to 16 July 2004. In view of my findings this decision will be set aside.
DECISION
56. The decision of the Corporation made 11 September 2002, that compensation is not payable to Mr Kerin compensation under section 16 of the Act in respect of acromioplasty and rotator cuff repair and under section 19 of the Act in relation to time lost from work for the period 25 June 2002 to 1 November 2002, is set aside.
57. In substitution for the decision set aside the Tribunal decides that the Corporation is liable to pay to Mr Kerin compensation under section 16 of the Act in respect of the cost of the acromioplasty and rotator cuff repair and under section 19 of the Act in relation to time lost from work for the period 25 June 2002 to 1 November 2002.
58. The decision of the Australian Postal Corporation as made by reconsideration on 16 July 2004 is set aside. In substitution the Tribunal decides that as at the date of this decision the injury to Mr Kerin’s left shoulder sustained on or about 5 November 2001 had ceased to result in incapacity for work and the requirement for medical treatment.
59. I will hear the parties further on the question of costs if required.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 20 November 2003 & 2-4 February 2005
Date of Decision 17 March 2005
Counsel for the Applicant Dr M. Spry
Solicitor for the Applicant Vandenberg Reid
Counsel for the Respondent Mr D. O’Donovan
Solicitor for the Respondent Sparke Helmore
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