Krecu and Linfox Australia Pty Ltd (Compensation)

[2015] AATA 769

Krecu and Linfox Australia Pty Ltd (Compensation) [2015] AATA 769 (1 October 2015)

Division	GENERAL DIVISION
File Number	2013/5114
Re	Jon Krecu
APPLICANT
And	Linfox Australia Pty Ltd
RESPONDENT

DECISION

Tribunal	Deputy President K Bean
Date	1 October 2015
Place	Adelaide

The Tribunal decides that:

(1)    The decision under review is varied so as to provide that:

(a)   from 21 June 2013 to the date of this decision, and as at the date of this decision:

(i)    the compensable injuries to Mr Krecu’s left shoulder and right hip/buttock continue to result in incapacity and require medical treatment;

(ii) the respondent continues to be liable to pay compensation to Mr Krecu in respect of the compensable injuries to his left shoulder and right hip/buttock pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act);

(b)   the description of Mr Krecu’s compensable injuries is amended so as to include subacromial bursitis and adhesive capsulitis of the left shoulder, labral tear, degenerative changes and iliopsoas bursitis of the right hip, and right meralgia paraesthetica;

(2)   The matter is remitted to the respondent for determination and calculation of the amounts payable to Mr Krecu as a consequence of this Decision; and

(3)   The Tribunal:

(a)    reserves liberty to apply within 14 days in relation to the costs of the proceedings; and

(b) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Krecu pursuant to subsection 67(8) of the SRC Act.

............ [Sgd] ........................................

Deputy President K Bean

CATCHWORDS

COMPENSATION – Liability accepted for left shoulder, right hip, and thoracic back injuries – Whether shoulder symptoms properly regarded as a disease or an aggravation of a pre-existing disease – Whether wilful and false representation provision applies – Whether applicant continues to require medical treatment in relation to compensable injuries – Whether applicant continues to be incapacitated for work as a result of compensable injuries – Description of accepted conditions amended – Decision under review varied.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 5A, 5B, 7(7),16, 19

CASES

Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263

National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382

REASONS FOR DECISION

Deputy President K Bean

1 October 2015

1. On 18 February 2009, the applicant, Mr Krecu, was working as a road train driver for the respondent. Before leaving Port Augusta on his way to Adelaide, he was securing a load of copper plates on the back of his road train when the head of the spanner he was using cracked, causing him to lose his balance and fall to the ground. As a result of this fall (the accident), Mr Krecu suffered injuries to his left shoulder, buttock and hip region and also to his thoracic spine.

2. Shortly after the accident, on 20 February 2009, Mr Krecu lodged a claim for workers’ compensation in respect of “left shoulder, right hip, thoracic back”.[1] Liability was subsequently accepted by the respondent for those injuries[2], and compensation paid for medical expenses and incapacity.

   [1]     Exhibit 1, T4/33.

   [2]     Exhibit 2, T88/213.

3. However, on 21 June 2013, the respondent determined that it was no longer liable to pay compensation to Mr Krecu in respect of his injuries, pursuant to ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988. Following a request for reconsideration, the respondent affirmed that determination in a reconsideration of 23 August 2013, prompting Mr Krecu to seek review of the reconsideration decision by this Tribunal on 8 October 2013.[3]

   [3]     Exhibit 1, T2/6.

4. Before identifying and addressing the issues which arise from that application for review, I will first briefly outline the applicable statutory framework.

   STATUTORY FRAMEWORK

5. As I have alluded to, the Act which is applicable to determining Mr Krecu’s compensation entitlements is the Safety, Rehabilitation and Compensation Act1988 (the SRC Act), and for the purposes of this matter, the most relevant provisions are ss 16 and 19. Section 16 provides that an employee is entitled to receive compensation in respect of medical treatment obtained in relation to a compensable injury.[4] Section 19 provides that an employee is entitled to receive compensation for incapacity where the employee is incapacitated for work “as a result of” a compensable injury.[5]

   [4]     Subsection 16(1).

   [5]     Subsection 19(1).

6. The SRC Act defines an “injury” to include a “physical or mental injury arising … in the course of the employee’s employment”.[6] It defines a “disease” as follows:

   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.

   [6]     Subsection 5A(1).

7. Also relevant in the context of this matter is subs 7(7), which provides as follows:

   7   Provisions relating to diseases

   …

   (7)    A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.

   THE ISSUES

8. Having regard to the evidence before me and the contentions of the parties, the main issues which arise for my determination in this matter are:

   (a)Whether, in the accident, Mr Krecu suffered only from “injuries” or whether he also suffered a “disease” or an aggravation of a “disease”;

   (b)If he suffered from a “disease” or an aggravation of a “disease”, whether Mr Krecu had made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease within the meaning of subs 7(7);

   (c)To the extent subs 7(7) does not apply or is not invoked, whether, after 21 June 2013, Mr Krecu continued to be incapacitated for work as a result of any of his compensable injuries; and

   (d)To the extent subs 7(7) does not apply or is not invoked, whether, after 21 June 2013, Mr Krecu continued to require medical treatment in relation to any of his compensable injuries.

9. I propose to address each of these issues in turn.

   DID MR KRECU SUFFER A “DISEASE” OR AN AGGRAVATION OF A “DISEASE”?

10. As I understand it, there is no dispute between the parties that as a result of the fall on 18 February 2009, Mr Krecu suffered immediate symptoms in his left shoulder, buttocks/hip area and thoracic back, produced by his fall and his efforts to break his fall. The respondent further accepts that the physiological changes to Mr Krecu’s hip/buttock area and thoracic back are properly regarded as “injuries” within the meaning of the SRC Act. With respect to Mr Krecu’s shoulder symptoms, however, although it initially regarded these as also attributable to an “injury”, the respondent now contends that they should be regarded as an aggravation of a pre-existing “disease”, namely left shoulder bursitis.

11. In addition, notwithstanding its initial acceptance of liability for Mr Krecu’s shoulder condition, the respondent contends in the context of this matter that Mr Krecu made one or more wilful and false representations that he did not suffer from bursitis of the left shoulder. Accordingly, the respondent also contends that compensation is not payable to Mr Krecu for any aggravation of his bursitis suffered as a result of the accident. Given the respondent’s reliance on subs 7(7), an issue also arises as to whether, even if Mr Krecu’s shoulder condition is not properly regarded as an “aggravation” of a disease, it should nevertheless be regarded as a “disease” rather than an “injury”, potentially invoking subs 7(7).

12. I should acknowledge that counsel for Mr Krecu, Mr Rossi, challenged the Tribunal’s jurisdiction to address these issues, given the reviewable decision related only to ss 16 and 19 liability. However, I am satisfied that I am entitled, and indeed obliged, to consider issues potentially bearing upon s 14 liability in this context, for the reasons outlined in Telstra Corporation Ltd v Hannaford.[7]

    [7]     Telstra Corporation Ltd v Hannaford (2006) 90 ALD 263.

    The evidence

13. As alluded to above, as I understand the respondent’s case as it evolved at the hearing, the relevant disease from which the respondent says Mr Krecu was suffering before the fall was bursitis of the left shoulder. The respondent had earlier contended that Mr Krecu was also suffering from degenerative changes in the acromioclavicular joint of his left shoulder. However, in the course of his oral evidence, the respondent’s medical witness, Mr Elsner (an Orthopaedic Surgeon) accepted that no such changes were present prior to the accident as none were observed by Mr Krecu’s treating Orthopaedic Surgeon, Professor Krishnan, when he operated on Mr Krecu in August 2009.

14. Nevertheless, Mr Elsner maintained that, based on the report of an ultrasound done the day after the accident, on 19 February 2009[8], Mr Krecu was suffering from a degree of bursitis prior to the relevant accident. Mr Elsner based this opinion on the fact that in the ultrasound report the bursa was reported as being “thickened” and there was no report of fluid in the bursa. In his evidence, Mr Elsner said that if fluid had been present, this would be indicative of an acute traumatic bursitis. He said the fact that the bursa was thickened and there was apparently no fluid indicated a longstanding condition, rather than one of recent traumatic origin.

    [8]     Exhibit 1, T8/55.

15. However, of the doctors who have expressed an opinion on this issue, Mr Elsner is the only one who holds that view.

16. Dr Stockhoff, Occupational Physician Trainee, examined Mr Krecu on 27 July 2009, prior to his left shoulder surgery. She relevantly reported that he had damaged the bursa in his left shoulder in the fall and was suffering from left shoulder bursitis. She made no mention of any pre-existing bursitis.[9]

    [9]     Exhibit 1, T27/83.

17. Dr Awerbuch, Consultant Physician, saw Mr Krecu on 18 November 2009. Although he acknowledged that the ultrasound report of February 2009 showed thickening of the bursa, he nevertheless accepted that the swelling and impingement symptoms reported by Mr Krecu were attributable to the accident. He relevantly reported:

    By objective criteria Mr Krecu appears to have sustained three injuries in the incident that occurred on 18/2/09. The most troublesome of these was an injury to the left shoulder although in point of fact the ultrasound of the left shoulder on 19/2/09 did not identify evidence of an injury but did show thickening of the subacromial/subdeltoid bursa with bursal catching. Given that Mr Krecu did not report left shoulder pain prior to the incident a reasonable hypothesis would be that the trauma of the incident caused swelling of the bursa with bursal impingement to which he is likely to have been predisposed by virtue of a down sloping acromion (see x-ray of 6/4/09).[10]

    [10]    Exhibit 1, T33/97 - 98.

18. Dr Poppenbeek, Consultant Occupational Physician, examined Mr Krecu on 4 July 2011 and found nothing to indicate any pre-existing condition.[11]

    [11]    Exhibit 1, T53/130.

19. Associate Professor Bauze, an Orthopaedic Consultant, also examined Mr Krecu at the request of the respondent on 26 June 2012, and relevantly reported that “the physical condition of the left shoulder” related to “the injury he describes”.[12] He also did not identify any pre-existing, congenital, constitutional or underlying condition.[13]

    [12]    Exhibit 1, T67/155.

    [13]    Exhibit 1, T67/155.

20. Mr Krecu was also seen by Dr Whittaker, Consultant Rheumatologist, on 24 May 2013. Dr Whittaker did not comment specifically on the precise relationship between Mr Krecu’s bursitis and the fall, although he did comment that he did not consider the left shoulder surgery carried out in August 2009 was required as a result of the accident.[14]

    [14]    Exhibit 1, T85/199.

21. Dr Ng, Occupational and Environmental Physician, examined Mr Krecu on 21 January 2014. He also concluded that Mr Krecu’s subacromial bursitis and impingement syndrome was entirely attributable to the accident.[15]

    [15]    Exhibit 4.

22. In his oral evidence, Mr Krecu’s treating Orthopaedic Surgeon, Professor Krishnan, confirmed that in his view Mr Krecu’s bursitis developed as a result of an acute injury to the bursa on 18 February 2009.

    Consideration

    Was Mr Krecu suffering from bursitis at the time of the accident?

23. Having regard to the whole of the evidence, and giving appropriate weight to the opinions of Professor Krishnan and Mr Elsner (each of whom gave oral evidence), I am not persuaded that Mr Krecu was suffering from left shoulder bursitis prior to the accident.

24. I note that the only evidence in support of the proposition that he was, is the opinion Mr Elsner gave during his oral evidence. The main basis for that opinion was the absence in the ultrasound report of 19 February 2009 of any mention of fluid in the bursa. However, many of the other doctors had also seen that ultrasound report and none appear to have drawn the same conclusion from it. In particular, Professor Krishnan, who operated on Mr Krecu’s shoulder, remained of the view that his bursitis was of acute and traumatic onset, notwithstanding having seen that ultrasound report. Whilst acknowledging the thickening of Mr Krecu’s bursa reported on in the ultrasound report, Dr Awerbuch also accepted that the swelling of Mr Krecu’s bursa and the impingement symptoms which resulted were attributable to the accident.

25. Admittedly, it was unfortunate that Mr Elsner’s opinion with respect to the pre-existing bursitis was given after Professor Krishnan’s evidence, so there was no opportunity for him to comment on this during the hearing. However, I also note that Mr Elsner conceded during his oral evidence that if Mr Krecu had been suffering from bursitis prior to the fall of 18 February 2009, he would have expected that Mr Krecu would also have been suffering from impingement symptoms. Mr Elsner further conceded that there was no evidence of Mr Krecu suffering from such symptoms prior to the accident, either in the notes produced by his chiropractor[16] or elsewhere in any of the medical records. Mr Elsner also appeared to concede that the absence of any recorded symptoms of bursitis reduced the likelihood that there was any significant bursitis or impingement present prior to the accident.

    [16]    Exhibit 3.

26. I have accordingly concluded that I am not positively satisfied that Mr Krecu was suffering from left shoulder bursitis prior to the accident of 18 February 2009. I prefer the opinion of Professor Krishnan on this issue, which is consistent with most of the other medical evidence.

    Does subs 7(7) apply?

27. Of course, it follows from that conclusion that Mr Krecu did not suffer from any aggravation of a “disease” in the accident. Further, even if the bursitis he sustained in the accident was to be regarded as a “disease” rather than an “injury”, as the disease was not present prior to the accident, and there is no evidence that Mr Krecu had previously suffered from the same or a substantially similar condition[17], there is no basis for a finding that he failed to disclose a previous history of bursitis. Put simply, as Mr Krecu did not have a previous history of bursitis, or any substantially similar condition, there was nothing for him to disclose. It therefore follows that subs 7(7) has no application to this matter, and no basis has been established for me to make findings inconsistent with the respondent’s initial acceptance of liability for Mr Krecu’s left shoulder injury pursuant to s 14 of the SRC Act.

    AS AT 21 JUNE 2013, WAS MR KRECU SUFFERING ONGOING INCAPACITY AS A RESULT OF ANY OF HIS COMPENSABLE INJURIES?

    [17]    See National Australia Bank Ltd v Georgoulas (2013) 217 FCR 382 at 388 [29].

28. It is clear on the material before me that in addition to the bursitis of the left shoulder with impingement, in the accident Mr Krecu also sustained soft tissue injuries to his right hip/buttock and thoracic back. Professor Krishnan also considers that he suffered from a labral tear and associated cystic changes in his hip, together with a degree of hip bursitis.[18]

    [18]    Exhibit 1, T86/203.

29. With respect to the thoracic back injury, Mr Rossi acknowledged that this had resolved by June 2013, and I consider that concession to have been properly made on the material before me. However, there is very little evidence before me to suggest that Mr Krecu’s other injuries had fully resolved by 21 June 2013.

30. I will first address Mr Krecu’s left shoulder condition before turning to his right hip/buttock injury.

    Left Shoulder

    The evidence

31. The respondent’s determination ceasing liability was based largely on the report of Dr Whittaker, dated 29 May 2013, in which Dr Whittaker stated “In my opinion Mr Krecu is no longer suffering from conditions related to the fall dated 18/02/2009”.[19] The reconsideration decision also relied heavily on the report of Dr Whittaker,[20] whilst acknowledging the report of Professor Krishan, dated 26 July 2013, which was entirely inconsistent with Dr Whittaker’s report.[21]

    [19]    Exhibit 1, T111/312.

    [20]    Exhibit 1, T119/340 - 341.

    [21]    Exhibit 1, T119/343.

32. Prior to expressing the opinion that Mr Krecu was no longer suffering from conditions related to the fall of 18 February 2009, Dr Whittaker recorded the following as to the current status of Mr Krecu’s left shoulder:

    He advised me that his left shoulder symptoms are much unchanged. He has a discomfort in the left shoulder and a restricted range of movement secondary to physical block, presumably the result of his previous left adhesive capsulitis (frozen shoulder).

    Dr Whittaker also noted that Mr Krecu was currently under the care of Professor Krishnan and taking various medications.[22]

    [22]    Exhibit 1, T85/196.

33. Dr Whittaker recorded the following relating to his physical examination of Mr Krecu’s shoulder:

    With regard to the left shoulder, I noted a well-healed surgical scar and features of a frozen shoulder with restricted external rotation in adduction 20°, extension 30°, forward flexion 90°, and abduction 80°.[23]

    Dr Whittaker went on to state as follows:

    He has a left frozen shoulder and this is likely to be postoperative pathology, although I am not of the opinion that his left shoulder surgery was required as a result of the incident dated 18/02/2009.  The advised mechanism of injury is not consistent.  Obtaining reports from Professor Krishnan would be beneficial.  In addition, the reports of other radiological investigations performed over this period would be of help.[24]

    Dr Whittaker also stated:

    Mr Krecu has features of a left frozen shoulder.  This is likely postoperative.  However, I am not convinced that his initial left shoulder symptoms can be considered to be significantly related to the incident.  Further evidence to support my opinion is the more recent onset of symptoms in the non-dominant right shoulder.[25]

    [23]    Exhibit 1, T85/197.

    [24]    Exhibit 1, T85/199.

    [25]    Exhibit 1, T85/200.

34. However, Dr Whittaker did not give evidence at the hearing, and none of the other doctors who have examined Mr Krecu share Dr Whittaker’s opinion that the need for Mr Krecu’s left shoulder surgery was not related to the accident. Further, as acknowledged by Mr Elsner, there is no evidence that Mr Krecu was suffering any symptoms of bursitis prior to the accident.

35. As I have already mentioned, the surgery on Mr Krecu’s shoulder was undertaken about six months after the accident, on 26 August 2009. The surgery consisted of a left shoulder arthroscopy, subacromial decompression, bursectomy and AC joint debridement.[26] As the surgery was undertaken to relieve the symptoms of bursitis and there is nothing to suggest that Mr Krecu was suffering from bursitis prior to the accident, it is clear on the material before me that the surgery was undertaken to address the effects of the accident.

    [26]    Exhibit 1, T86/203.

1. I note that in his report of 10 February 2014, Dr Ng commented on this aspect of Dr Whittaker’s opinion as follows:

   My opinion differs from that of Dr Whittaker.  Dr Whittaker is of the opinion that Mr Krecu’s current complaints are consistent with evolving degenerative disease of the spine and right hip girdle, which are constitutional in nature and unrelated to the incident.  He also stated that he was not of the opinion that Mr Krecu’s left shoulder surgery was required as a result of the incident dated 18 February 2009.

   In my opinion Mr Krecu gave a clear and consistent history of trauma to the left shoulder and right hip as a result of a clear and documented workplace accident; a fall after being thrown back a distance of 3m.  Mr Krecu underwent conservative treatment with two steroid injections and physiotherapy to his shoulder, which failed to improve his symptoms.  His initial xrays show evidence of a down-sloping acromion which is a structural pathology which would be amenable to surgical treatment.  He has sought opinion from two well-respected Adelaide Orthopaedic Surgeons who both recommended surgery.

   Dr Whittaker is entitled to his own opinion whether surgery was required or not, however, seeing that it was funded and treated under the workers compensation scheme, any complications from treatment funded by the insurer would constitute a work-related condition.  Dr Whittaker himself has stated in his report that Mr Krecu’s adhesive capsulitis is ‘likely to be post-operative pathology’.

   In my opinion I fail to see how a shoulder injury resulting from the work-related incident, which was treated under the workers compensation scheme, that unfortunately resulted in a secondary complication would not be considered a work-related injury.

   Dr Whittaker has also stated that the mechanism of injury is not consistent, however, he did not elaborate on this.  In my opinion the mechanism of injury is consistent in that he was performing a forceful overhead manoeuvre whilst tightening chains and also reported trauma associated with falling onto his left shoulder.[27]

   [27]    Exhibit 4, pp 12 - 13.

2. Significantly, Mr Elsner, who gave evidence at the hearing at the request of the respondent, did not dispute the fact that the surgery had been undertaken to address the effects of the accident, albeit he was of the view that the accident had aggravated a pre-existing bursitis. Indeed, in his oral evidence he expressly confirmed that he regarded the accident as having contributed to the need for Mr Krecu’s left shoulder surgery. He also accepted that Mr Krecu had not had a good outcome from that surgery, with the development of adhesive capsulitis subsequent to and as a complication of the surgery. He further confirmed that, as he had indicated in his written report, Mr Krecu had a degree of ongoing incapacity attributable to the accident.

3. During his oral evidence, Professor Krishnan also confirmed that Mr Krecu remained incapacitated for work as at June 2013, primarily due to the symptoms of his adhesive capsulitis. In particular, he remained unable to do truck driving work.

   Consideration

4. On analysis therefore, the only evidence before me which supports the respondent’s reviewable decision ceasing liability with respect to Mr Krecu’s left shoulder is the written report of Dr Whittaker. The main basis for Dr Whittaker’s opinion was an unexplained assertion that Mr Krecu’s shoulder surgery in August 2009 was not related to his accident in February 2009, together with the development four years later of symptoms in Mr Krecu’s right shoulder[28]. However, Dr Whittaker’s opinion is at odds with all of the other medical evidence before me, including the opinion of Mr Elsner.

   [28]    Dr Ng attributed this to the effects of his left shoulder injury: Exhibit 4, p 11.

5. I have accordingly concluded that I do not accept Dr Whittaker’s opinion on this issue. I prefer the opinions of Professor Krishnan and Mr Elsner, that the surgery was undertaken to address the effects of the accident on Mr Krecu’s left shoulder. I also accept their opinions that he has had a poor outcome from the surgery and as at mid-2013 he was still suffering from the effects of adhesive capsulitis, and remained at least partially incapacitated for work.

   Right hip/buttock

   The evidence

6. With respect to Mr Krecu’s right hip, there is a greater divergence of opinion. Whilst some of the other doctors consider that he sustained more serious injuries, Mr Elsner’s view is that in the accident Mr Krecu suffered only soft tissue injuries to his hip/buttock area, which have since resolved.

7. Mr Elsner’s opinion with respect to Mr Krecu’s right hip is based, in part, upon the fact that an MRI scan was done of both hips on 6 June 2013, which he said no longer showed the labral tear which was apparent in an MRI done on 3 June 2010.

8. The report of the MRI scan of Mr Krecu’s right hip undertaken on 3 June 2010 reported a “… small posterosuperior labral tear extending between the acetabulum and labrum” with “no para labral cyst”. It also reported “No evidence of trochanteric, sub gluteal or iliopsoas bursitis”.[29]

   [29]    Exhibit 1, T40/108.

9. By way of contrast, the scan of the right hip MRI undertaken on 6 June 2013 reported:

   There is an undisplaced labral tear antero-superiorly involving the full thickness base of labrum– best seen on the sagittal imaging.

   There is bone oedema involving the central femoral head slightly superior to the fovea and the congruent acetabular surface. Greater abnormality on the acetabular side. There is absence of clear cartilage signal overlying the bone oedema raising the possibility of cartilage injury.

   …

   There is a small iliopsoas bursa and a small amount of oedema lateral to the iliopsoas tendon also.

   The radiologist also commented:

   A slightly unusual central pattern of oedema within the deep aspect of the acetabular cup. ? focal trauma - ?history of injury to the right hip. Focal CT suggested to further evaluate. Otherwise mild degenerative changes at the hip. Include an undisplaced anterolateral labral tear.

   Iliopsoas bursa.[30]

   [30]    Exhibit 17.

10. As I understand Mr Elsner’s evidence, he does not regard the labral tear reported on in 2013 as being the same as the tear reported in 2010. Rather, he considers that the tear reported in 2010 subsequently healed and that the tear reported on in 2013 is different. He also indicated in his evidence that the fact that the 2010 report did not mention oedema or focal trauma means that those phenomena (reported on in 2013) cannot be attributed to the accident and must have occurred later. He also considers that the MRI of Mr Krecu’s left hip showed similar degenerative changes to those in his right hip in 2013.

11. However, as I have already mentioned, Professor Krishnan considers that in the accident Mr Krecu sustained more serious injuries to his right hip, including a labral tear, cyst formation and other traumatic changes, together with a degree of bursitis.[31] In effect, he attributes the appearance of Mr Krecu’s right hip in the 2013 MRI scan to the accident. He further considers that Mr Krecu may need further treatment for his hip injury in the future, including a possible hip arthroscopy and cortisone injections to address bursitis in his hip. He also considers that Mr Krecu has developed early arthritis in his hip due to the accident, and may ultimately need a hip replacement.[32]

    [31]    Exhibit 1, T86/203.

    [32]    Exhibit 1, T86/204.

12. Dr Ng is the only other doctor to have commented on this issue in any detail although, unfortunately, he did not give oral evidence as he was unwell at the time of the hearing. He noted the MRI undertaken in 2010, which diagnosed Mr Krecu with a small labral tear, together with the report of the 2013 MRI scan. Taking into account both scans, his opinion was that in the accident, Mr Krecu had suffered an undisplaced labral tear, and an aggravation of pre-existing degeneration/osteoarthritis. In his report, he stated:

    With regard to his right hip, there was also a clear, consistent and documented history of trauma to the right hip. The initial ultrasound showed evidence of an acute injury in the form of crush tears and superficial gluteus maximus muscles. It cannot be argued that trauma to the right hip would not have resulted in an undisplaced labral tear (which was shown on first MRI) or aggravated any pre-existing degenerative changes in the right hip.

    Furthermore I would like to comment that it is unusual for someone of Mr Krecu’s age who was previously fit, healthy and active to only have unilateral pathology in one hip if it was due to constitutional degeneration.[33]

    [33]    Exhibit 4, p 13.

13. Based on his comment about unilateral degeneration, it would appear that Dr Ng did not see an MRI scan of Mr Krecu’s left hip taken in June 2013, which may have influenced his opinion.[34] Again, it would have been of assistance to receive oral evidence from him explaining his opinion in more detail, and commenting on the opinions of Mr Elsner and Professor Krishnan.

    [34]    This is corroborated by Dr Ng’s list of the documents provided to him at exhibit 4, p 2.

14. A number of the other doctors who have examined Mr Krecu have also expressed an opinion on this issue, albeit not in the same detail. For his part, Dr Whittaker considered Mr Krecu’s right hip complaints to be unrelated to the accident[35], stating:

    He has lateral right hip and groin pain.

    He has symptoms of right meralgia paraesthetica (entrapment of the lateral cutaneous nerve of thigh) which are present is (sic) intermittently.

    …

    In my opinion his ongoing right hip symptoms are not the result of the incident dated 18/02/2009.  He is likely to have evolving osteoarthritis in the right hip and this accounts for his painfully restricted range of hip movement.  He may also have gluteal tendinopathy/trochanteric bursitis as gluteal tendinopathy invariably co-exists with rotator tendinopathy, which is noted in both of his shoulder (sic).  His more recent diagnosis of psoriatic arthritis may also be relevant.

    [35]    Exhibit 1, T85/199.

15. Associate Professor Bauze also considered that Mr Krecu was suffering from irritation of the lateral cutaneous nerve of the right thigh as a consequence of the injury, and Dr Awerbuch also diagnosed that condition (known as meralgia paraesthetica) and accepted that this was secondary to the accident.[38] However, neither Associate Professor Bauze nor Dr Awerbuch were of the view that Mr Krecu had ongoing hip or buttock symptoms as a result of the accident.

    [38]    Exhibit 1, T33/99 - 100.

    Consideration

16. The evidence before me clearly leaves open the possibility that the small labral tear shown in the MRI scan of 2010 subsequently healed, and the changes shown in the MRI of June 2013 are degenerative or constitutional in nature. Unfortunately, I have not had the benefit of oral evidence from Dr Ng on this issue, or the benefit of Professor Krishnan’s comments on Mr Elsner’s evidence. It would have been particularly helpful to have Professor Krishnan’s comments on the significance of the 2010 MRI scan, and of the MRI scan of Mr Krecu’s left hip, which was apparently also undertaken in mid-2013. With the benefit of hindsight, it would have been preferable if Professor Krishnan and Mr Elsner had given concurrent evidence in this matter.

17. Having said that however, on the basis of the questions they were asked and the material available to them, both Dr Ng and, more significantly, Professor Krishnan, have clearly expressed the opinion that the changes reported in the MRI scan of Mr Krecu’s right hip done in June 2013 are attributable to the accident. Further, it is clear that both Dr Ng and Professor Krishnan were well aware of the 2010 MRI scan, which was in fact organised by Professor Krishnan and which Professor Krishnan noted in 2011 showed “minor labral fraying”.[39]

    [39]    Exhibit T1, T49/118.

18. Doing the best I can on the evidence available to me on this issue, I have decided on balance that I prefer the opinion of Professor Krishnan, which I note is also supported by the report of Dr Ng. I am therefore satisfied that Mr Krecu does suffer ongoing symptomatology in his right hip as a result of the accident, including a labral tear, early degenerative changes and iliopsoas bursitis.

19. I also accept Professor Krishnan’s opinion that Mr Krecu’s right hip condition causes a degree of ongoing incapacity, including with respect to prolonged sitting. I note that Mr Elsner also accepted that climbing into a truck would be difficult for Mr Krecu and might exacerbate his right hip symptoms.

    AFTER 21 JUNE 2013, HAS MR KRECU CONTINUED TO REQUIRE MEDICAL TREATMENT IN RELATION TO HIS COMPENSABLE INJURIES?

20. Of course, it also follows from my conclusions outlined above that I am satisfied that, after 21 June 2013, Mr Krecu has continued to require medical treatment for his compensable conditions, which include subacromial bursitis with impingement and adhesive capsulitis of the left shoulder, and a labral tear, degenerative changes and iliopsoas bursitis in the right hip.

    SUMMARY IN RELATION TO INCAPACITY AND THE NEED FOR MEDICAL TREATMENT

21. For the reasons given above, I am satisfied that as at 21 June 2013, Mr Krecu remained incapacitated for work as a result of the compensable injury to his left shoulder, and the adhesive capsulitis which developed as a consequence of surgery undertaken to treat that injury. I am further satisfied that as at 21 June 2013 and since that date, Mr Krecu has been unable to carry out truck driving duties as a result of the effects of his compensable left shoulder injury.

22. In addition, I am satisfied that as at and since 21 June 2013, Mr Krecu has continued to suffer from the effects of his compensable hip injury, which has led to early degenerative changes in his right hip. I am further satisfied that as a result of his compensable hip injury, Mr Krecu has been unable to undertake truck driving duties, or duties involving prolonged sitting.

    OTHER MATTERS

23. On the evidence before me, an issue arises as to whether I should in any way amend the description of the injuries for which the respondent has accepted liability, being “left shoulder, right hip and thoracic back injuries”.

24. Understandably, little attention was paid to this issue at the hearing. However, I am satisfied that the question of the proper description of Mr Krecu’s injuries was a live issue before the reconsideration delegate.[40] In addition, I am satisfied that the question of whether Mr Krecu’s adhesive capsulitis was compensable was also squarely before, and was addressed by, the reconsideration delegate.[41] Accordingly, I am satisfied that I have jurisdiction to amend the description of Mr Krecu’s compensable conditions to reflect my conclusions on the medical evidence, including with respect to Mr Krecu’s adhesive capsulitis. For abundant clarity, I am also satisfied that Mr Krecu’s adhesive capsulitis developed as a result of the surgery to address his compensable bursitis, and that it was therefore “contributed to, to a significant degree”, by the accident[42].

    [40]    Exhibit 1, T119/344.

    [41]    Exhibit 1, T119/344.

    [42] As this condition is a disease, s 5B of the SRC Act applies.

25. I have therefore decided to amend the description of Mr Krecu’s injuries to include subacromial bursitis with impingement and adhesive capsulitis of the left shoulder, together with labral tear, degenerative changes and iliopsoas bursitis of the right hip. I also propose to add the condition of meralgia paraesthetica, diagnosed by Drs Whittaker and Awerbuch and Associate Professor Bauze, although I acknowledge that on the evidence before me it is not clear that that condition is currently resulting in ongoing incapacity or an ongoing need for medical treatment.

    CONCLUSIONS

26. My conclusions can be summarised as follows:

    (a)Mr Krecu did not suffer from left shoulder bursitis or any substantially similar condition prior to the accident;

    (b)Accordingly, Mr Krecu did not suffer an aggravation of any disease in the accident;

    (c)Even if his bursitis condition sustained in the accident is regarded as a “disease”, rather than an “injury”, Mr Krecu had not suffered symptoms of that condition or any substantially similar condition previously, and therefore could not have falsely represented that he had not suffered from that disease previously;

    (d)Subsection 7(7) is therefore not invoked;

    (e)As at 21 June 2013, the injury to Mr Krecu’s thoracic back had resolved;

    (f)As at 21 June 2013, Mr Krecu continued to suffer from the effects of the injury to his left shoulder, which resulted in bursitis with impingement and led to the development of the adhesive capsulitis, secondary to the surgery undertaken to address the bursitis;

    (g)As at 21 June 2013, Mr Krecu also continued to suffer the effects of the injury to his right hip/buttock, which resulted in a labral tear, early degenerative changes in his right hip and iliopsoas bursitis in his right hip;

    (h)After 21 June 2013, the ongoing effects of Mr Krecu’s left shoulder and hip/buttock injuries have continued to result in incapacity for work, including an inability to undertake work as a truck driver, or duties involving prolonged sitting;

    (i)From 21 June 2013 to the date of this decision and as at the date of this decision, the respondent remains liable to pay compensation to Mr Krecu in respect of the compensable injuries to his left shoulder and right hip/buttock, pursuant to ss 16 and 19 of the SRC Act; and

    (j)It is appropriate for me to amend the description of Mr Krecu’s injuries so as to reflect my conclusions on the medical evidence, and to add adhesive capsulitis as a compensable condition.

27. I have accordingly decided to vary the decision under review so as to reflect those conclusions.

    DECISION

28. The Tribunal decides that:

    (1)The decision under review is varied so as to provide that:

    (a)    from 21 June 2013 to the date of this decision, and as at the date of this decision:

    (i)the compensable injuries to Mr Krecu’s left shoulder and right hip/buttock continue to result in incapacity and require medical treatment;

    (ii)the respondent continues to be liable to pay compensation to Mr Krecu in respect of the compensable injuries to his left shoulder and right hip/buttock pursuant to ss 16 and 19 of the SRC Act;

    (b)    the description of Mr Krecu’s compensable injuries is amended so as to include subacromial bursitis and adhesive capsulitis of the left shoulder, labral tear, degenerative changes and iliopsoas bursitis of the right hip, and right meralgia paraesthetica;

    (2)The matter is remitted to the respondent for determination and calculation of the amounts payable to Mr Krecu as a consequence of this Decision; and

    (3)     The Tribunal:

    (a)    reserves liberty to apply within 14 days in relation to the costs of the proceedings; and

    (b) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Krecu pursuant to subs 67(8) of the SRC Act.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

........ [Sgd] ........................................

Associate

Dated 1 October 2015

Dates of hearing	27, 28 and 29 April 2015
Counsel for the Applicant	Mr A Rossi
Solicitors for the Applicant	Rossi Legal
Counsel for the Respondent	Mr C Clark
Solicitors for the Respondent	Moray & Agnew Lawyers

[36]    Exhibit 1, T85/195.

[37]    Exhibit 1, T85/199.