Lock and Comcare (Compensation) - [2018] AATA 2386

Lock and Comcare (Compensation) [2018] AATA 2386 (23 July 2018)
Division:GENERAL DIVISION
File Numbers: 2016/7037
2017/1827
2017/3194
2017/3211

Re:Bronwynne Lock
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President S Boyle
Date:23 July 2018
Place:Perth

Application 2016/7037
The Tribunal finds that it does not have jurisdiction to review the decision.
Application 2017/1827
The Tribunal affirms the decision under review.
Application 2017/3211
The Tribunal affirms the decision under review.
Application 2017/3194
The Tribunal:
(a)sets aside the reviewable decision in this application 2017/3194 and in substitution for that decision makes the determination that the Respondent is liable under s 16 of the SRC Act for the cost of the proposed surgery being:
(i)right wrist arthroscopic surgery;
(ii)right arthroscopic excision of a radiovolar ganglion, small dorsal scapholunate ganglion +/- excision intraosseous ganglia in scaphoid and lunate; and
(iii)right ulnar shortening.

(b)directs that the Respondent pay the costs of this application 2017/3194 incurred by the Applicant.

....[sgd]....................................................................
Deputy President S Boyle
CATCHWORDS
COMPENSATION – commonwealth employee – accepted injuries - partial tear of rotator cuff and lumber sprain – hip, thigh and buttock pain right side – Applicant fell in the course of employment – whether first application is a reviewable decision - right interosseous cyst in the scaphoid and lunate – reasonable medical treatment
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43, s 43(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 4(1), s 5A(1), s 5B, s 14, s 14(1), s 16, s 19, s 54(1), s 60(1), s 62(1), s 62(2), s 62(4), s 64
CASES
Comcare v Holt [2007] FCA 405
Comcare v Rope (2004) 135 FCR 443
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Telstra Corporation Ltd v Hannaford [2016] FCAFC 87
Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321
Re Roberts and Military Rehabilitation and Compensation Commission (2011) 124 ALD 78
Re Tiranti-Valenti v Comcare (1996) 45 ALD 478
Rope v Comcare [2018] AATA 42
SECONDARY MATERIALS
Sutherland P and Ballard JO, Annotated Safety, Rehabilitation and Compensation Act 1988 (11th ed, The Federation Press and Soft Law Community Projects, 2018) – 4.17
REASONS FOR DECISION
Deputy President S Boyle
23 July 2018
THE APPLICATIONS

The Applicant seeks the review of four decisions made by delegates of the Respondent. Four separate applications were made and were heard together. They are:
1. Application 2016/7037
A decision dated 1 December 2016 that varied a determination made by a delegate of the Respondent in relation to the Applicant’s accepted injuries of “partial tear of rotator cuff (right)” (accepted rotator cuff injury) and “lumbar sprain” (accepted lumbar sprain injury). By the original determination made on 25 October 2016, a delegate of the Respondent found that the Applicant had no present entitlement to compensation in relation to the accepted rotator cuff injury or the accepted lumbar sprain injury. Upon reconsideration, a different delegate varied the determination, deciding that the Applicant continued to be entitled to compensation under s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act) in relation to the accepted lumbar sprain injury but had no present entitlement to compensation under s 16 and s 19 of the SRC Act in relation to the accepted rotator cuff injury.
2. Application 2017/1827
A decision made on 24 March 2017 which affirmed a determination by a delegate of the Respondent that the Respondent was not liable to pay compensation to the Applicant under s 14 of the SRC Act in relation to a claimed injury described as “hip, thigh and buttock pain right side” (claimed hip injury).
3. Application 2017/3194
A decision made on 3 May 2017, which affirmed a determination by a delegate that the Respondent was not liable under s 16 of the SRC Act to pay compensation to the Applicant for the following proposed surgeries:
(a)right wrist arthroscopic surgery;
(b)right arthroscopic excision of a radiovolar ganglion, small dorsal scapholunate ganglion +/- excision intraosseous ganglia in scaphoid and lunate; and
(c)right ulnar shortening.
4. Application 2017/3211
A decision made on 3 May 2017, which affirmed a determination by a delegate that the Respondent was not liable under s 16 of the SRC Act for the Applicant’s proposed medical treatment of ultrasound guided PRP injections of the gluteus minimus tendon.
BACKGROUND
The Applicant was born in 1963.
The Applicant was, at the relevant times, employed by the Department of Agriculture and Water Resources (the Department) as a grain inspector.
In October 2013, and again on 13 January 2014, the Applicant suffered an overuse/jarring injury to her right wrist caused by pulling inspection trays in and out (R1.1, T80 at 182; R1.3, T13 at 29).
On 24 June 2014 the Applicant lodged a claim for compensation in relation to her right wrist injury (R1.3, T11).
On 19 September 2014 a delegate of the Respondent accepted liability under s 14 of the SRC Act in relation to the injuries of “ulna carpal impaction – right” and “ganglion – right” (R1.3, T20).
On 30 December 2014 the Applicant fell in the course of her employment when she was startled by a snake in an area where she was examining grain (R1.1, T14 at 33).
On 15 January 2015 the Applicant lodged a claim for compensation in relation to the following conditions said to have arisen from the fall on 30 December 2014: “full thickness supraspinatus tear in right shoulder” and “mechanical right sided lower lumbar spine dysfunction” (R1.1, T14 at 30).
On 6 February 2015 the Respondent accepted liability under s 14 of the SRC Act to pay compensation to the Applicant for her rotator cuff (right) injury and lumbar sprain injury (R1.1, T27).
On 8 April 2015 the Respondent accepted liability under s 16 of the SRC Act to pay compensation to the Applicant for surgery on her right shoulder, described as “arthroscopic acromioplasty/excision AC joint cuff repair right shoulder” (R1.1, T53).
On 15 April 2015 the Applicant underwent surgery on her right shoulder, specifically an acromioplasty and excision of distal clavicle performed by Dr Campbell (R1.1, T58). Dr Campbell’s report of 15 April 2015 stated:
Arthroscopic assessment of this lady’s right glenohumeral joint showed she had a very superficial surface tear of the supraspinatus tendon. Apart from this the joint was normal to examination. Inspection of the subacromial space showed marked bursitis. An arthroscopic acromioplasty was performed and the bursa was excised. The distal end of the clavicle was excised to decompress the acromioclavicular joint which showed inflammatory post traumatic pannus.
In July 2015 the Respondent accepted liability for the cost of injections to the right L5/S1 facet joint and the right hip (R1.1, T92).
In November 2015 the Applicant returned to work on a gradual return to work program (R1.1, T124).
On 27 September 2016 the Respondent sent to the Applicant a notice of intention to determine no present liability in relation to her accepted rotator cuff injury and accepted lumbar sprain injury and invited the Applicant to comment (R1.1, T215).
On 25 October 2016 a delegate of the Respondent determined that the Respondent was not presently liable to pay compensation to the Applicant in relation to her accepted injury of “sprains and strains of carpal (joint)(right)” and “ganglion (right)” (R1.3, T90).
On 25 October 2016 a delegate of the Respondent determined that the Respondent was not presently liable to pay compensation to the Applicant in relation to her accepted “partial tear of rotator cuff injury (right) and lumbar sprain” injury (R1.1, T220).
On 3 November 2016 the Applicant, through her solicitors, requested reconsideration of both of the determinations made on 25 October 2016 referred to in [19] and [20] (R1.1, T223 and R1.3, T92).
On 1 December 2016 a delegate of the Respondent varied the rotator cuff/lumbar sprain injury determination. The delegate found that the Applicant had a present entitlement to compensation in relation to her accepted lumbar sprain injury, but no present liability in relation to her accepted rotator cuff injury (R1.1, T231). The delegate considered that the condition that had caused the Applicant to require time off work was her subacromial bursitis and not the accepted rotator cuff injury (R1.1, T231 at 578).
Also, on 1 December 2016, a delegate of the Respondent varied the decision made on 25 October 2016 in relation to the Applicant’s wrist injury referred to in [19]. The delegate considered that the Applicant continued to experience symptoms in her wrist and found that the Respondent continued to be liable under s 16 and s 19 of the SRC Act for “right interosseous cyst in the scaphoid and lunate” but not for “ulnar carpal impaction” (R1.3, T93).
On 29 December 2016 the Applicant lodged an application for review of the rotator cuff injury decision referred to in [22] by the Tribunal (R1.1, T1). This is application 2016/7037.
On 5 January 2017 the Applicant lodged a new claim for compensation in relation to the claimed hip injury which was said to have also arisen out of the incident on 30 December 2014 (R1.2, T100).
On 17 February 2017 a delegate of the Respondent refused liability under s 14 of the SRC Act in relation to the Applicant’s claimed hip injury made on 5 January 2017. The delegate considered that the factors impacting on the Applicant’s right hip pain were not related to the workplace incident of 30 December 2014, but rather due to osteoarthritic changes in the Applicant’s hip joints, sclerosis in the greater trochanter area and bursitis in the greater trochanter area (R1.2, T109 at 361).
On 6 March 2017 a delegate of the Respondent made a determination (wrist surgery determination) denying liability under s 16 of the SRC Act in relation to the following proposed surgery for the Applicant’s accepted wrist injury (R1.3, T105):
(a)right wrist arthroscopic surgery;
(b)right arthroscopic excision of a radiovolar ganglion, small dorsal scapholunate ganglion +/- excision intraosseous ganglia in scaphoid and lunate; and
(c)right ulnar shortening.
On 23 February 2017 the Applicant lodged a request for reconsideration of the claimed hip injury determination (R1.2, T110) referred to in [26] above.
On 24 March 2017 a delegate of the Respondent affirmed the claimed hip injury determination (R1.2, T118). On the same day a delegate of the Respondent determined that the Respondent was not liable to pay compensation under s 16 of the SRC Act for an ultrasound guided PRP injection of the gluteus minimus tendon which was treatment proposed for the claimed hip injury (R1.4, ST6).
On 29 March 2017 the Applicant, through her solicitors, requested reconsideration of the wrist surgery determination referred to in [27] (R1.3, T106) and the claimed hip injury treatment determination referred to in [29] (R1.4, ST7).
On 30 March 2017 the Applicant lodged an application (R1.2, T1) for review of the claimed hip injury decision referred to in [29]. This is application 2017/1827.
On 3 May 2017 a delegate of the Respondent affirmed the wrist surgery determination referred to in [27] above (R1.3, T111).
Also on 3 May 2017 a delegate of the Respondent affirmed the decision to reject liability for the treatment (ultrasound guided PRP injections) for the claimed hip injury referred to at [29] (R1.4, ST12).
On 1 June 2017 the Applicant lodged the application for review by the Tribunal of the decision referred to in [32] above (R1.3, T1). This is application 2017/3194.
On 1 June 2017 the Applicant lodged the application for the review of the decision referred to in [33] above (R1.4, T1). This is application 2017/3211.
THE LEGISLATION
The Respondent’s general liability to pay compensation is set out in s 14 of the SRC Act. Section 14(1) provides that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in s 5A(1) of the SRC Act as follows:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
“Disease” is defined in s 5B of the SRC Act as follows:
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.
The term “ailment” is defined in s 4(1) of the SRC Act to mean:
…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Section 16 of the SRC Act relevantly provides:
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the SRC Act provides that the Respondent is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. That section sets out the formula for calculating the amount of compensation to which a relevant employee is entitled.
THE EVIDENCE
The hearing
The four applications were dealt with together at the hearing on 27 and 28 March 2018. Both parties were represented by counsel. The following witnesses gave evidence and were cross-examined at the hearing:
(a)the Applicant;
(b)Dr Phillip Meyerkort – occupational physician;
(c)Dr Barrie Slinger – orthopaedic surgeon;
(d)Dr Jeffrey Ecker – hand and wrist surgeon;
(e)Dr Gerard Taylor – sport and exercise medicine physician; and
(f)Dr Anthony Smith – orthopaedic surgeon;
Documentary evidence
The following documents were put into evidence:
(a)the Applicant’s substituted Witness Statement dated 12 January 2018 (A1);
(b)the Applicant’s Supplementary Statement of Facts, Issues and Contentions (SFIC) dated 2 March 2018 (A2);
(c)the Applicant’s Statement of Issues, Facts and Contentions dated 12 January 2018 (A3);
(d)medical report of Dr Barrie Slinger dated 8 November 2017 (A4);
(e)medical report of Dr Barrie Slinger dated 15 November 2017 (A5);
(f)medical report of Dr Jeff Ecker dated 12 January 2018 (A6);
(g)section 37 T-Documents (R1) including:
(i)T1-T235 in application 2016/7037 (R1.1);
(ii)T1-T122 in application 2017/1827 (R1.2);
(iii)T1-T111 in application 2017/3194 (R1.3);
(iv)Supplementary T-documents in applications 2016/7037, 2017/1827 and 2017/3211, ST1-ST16 (R1.4); and
(v)Supplementary T-Documents in applications 2016/7037, 2017/1827, 2017/3211 and 2017/3914, ST1-STST6 (R1.5);
(h)the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 20 February 2018 (R2);
(i)a letter from the Respondent’s representative to Dr Anthony Smith dated 12 October 2017 requesting a supplementary report and a copy of Dr Smith’s supplementary report dated 31 October 2017 (together R3);
(j)report of Dr Phillip Meyerkort dated 24 November 2017 (R4);
(k)supplementary report of Dr Phillip Meyerkort dated 9 February 2018 (R5);
(l)the Applicant’s witness statement dated 14 June 2017 (R6).
The T-Documents also included the following medical reports for each application:
(a)Exhibit R1.1 (Application 2016/7037)
·report prepared by Dr Mark Holland dated 30 December 2014 following an x-ray on the Applicant’s right shoulder (R1.1, T3);
·report prepared by Dr Mark Holland dated 5 January 2015 following an x-ray of the Applicant’s lumbar spine (R1.1, T7);
·report prepared by Dr Mark Holland dated 5 January 2015 following an ultrasound of the Applicant’s right shoulder (R1.1, T8);
·report prepared by Dr Ferry Dharsono dated 18 January 2015 following an MRI of the Applicant’s lumbar spine (R1.1, T16);
·letter from Dr Campbell to Dr Johnston dated 23 February 2015 recommending that the Applicant will require surgery for a rotator cuff repair (R1.1, T32 and T40);
·report of Dr Nat Lenzo for “NM Localised Bone of Joint Study” after a visit date with the Applicant on 18 March 2015 (R1.1, T47 and T50);
·initial exercise report dated 10 April 2015 prepared by Ms Amy Shaw (R1.1, T54 and T55);
·report of Dr Campbell dated 15 April 2015 following surgery for “Acromioplasty and Excision of Distal Clavicle of Right Shoulder” (R1.1, T58);
·report of Dr Campbell dated 24 April 2015 following the decompression of the Applicant’s shoulder (R1.1, T60);
·treatment update prepared by Ms Amy Shaw dated 20 May 2015 (R1.1, T72);
·reports of Dr Campbell dated 24 April 2015 and 28 May 2015 monitoring the Applicant’s progress post surgery (R1.1, T61 and T73);
·report prepared by Dr John Hayes, Consultant Rheumatologist, dated 15 June 2015 (R1.1, T80);
·report prepared by Ms Amy Shaw dated 30 June 2015 (R1.1, T82);
·reports prepared by Dr Campbell dated 9 July 2015 (R1.1, T87) and 14 August 2015 (R1.1, T96);
·report prepared by Dr Geoff Robey dated 27 July 2015 in relation to an injection in the Applicant’s right greater trochanteric bursa (R1.1, T95);
·final exercise report prepared by Ms Amy Shaw dated 31 August 2015 (R1.1, T105);
·report prepared by Dr L J du Plessis, Consultant Neurologist and Rehabilitation Physician, dated 15 September 2015 (R1.1, T107);
·report prepared by Mr Eamonn McCloskey, Orthopaedic Spinal Surgeon dated 28 October 2015 (R1.1, T110);
·report prepared by Dr Gerald Lim, Orthopaedic Surgeon, dated 1 December 2015 (R1.1, T120);
·progress reports prepared by People Sense regarding “right wrist injury, right shoulder and low back injury” dated 16 December 2015 (R1.1, T124), 29 January 2016 (R1.1, T137), 11 March 2016 (R1.1, T158), 21 April 2016 (R1.1, T177);
·report prepared by Dr Gerald Lim, Orthopaedic Surgeon, dated 12 January 2016 (R1.1, T131);
·report prepared by Mr Garry Sutijono dated 8 February 2016 (R1.1, T140);
·report prepared by Mr Eamonn McCloskey, Orthopaedic Spinal Surgeon, dated 30 March 2016 (R1.1, T166);
·SKG radiology report dated 5 April 2016 (R1.1, T168);
·report prepared by Mr Eamonn McCloskey, Orthopaedic Spinal Surgeon, dated 11 April 2016 (R1.1, T170);
·reports prepared by Dr M J Kent, Anaesthetist and Specialist in Pain Medicine, dated 12 May 2016 (R1.1, T181) and 23 June 2016 (R1.1, T193);
·report of Dr Anthony Smith, General Orthopaedics, dated 29 July 2016 (R1.1, T204); and
·report of Dr Uyana Gayan Dayaratna dated 10 October 2016 (R1.1, T219).
(b)Exhibit R1.2 (Application 2017/1827)
·report dated 5 January 2015 for a lumbar spine x-ray (R1.2, T5);
·report prepared by Dr Ferry Dharsono dated 18 January 2015 (R1.2, T12);
·reports prepared by Dr N Lenzo dated 18 March 2015 for a “localised bone or joint study with spect” (R1.2, T23 and T24);
·initial exercise report prepared by Ms Amy Shaw dated 10 April 2015 (R1.1, T25 and T26);
·treatment update report prepared by Ms Amy Shaw dated 20 May 2015 (R1.1, T30);
·report prepared by Dr John Hayes, Consultant Rheumatologist, dated 15 June 2015 (R1.2, T33);
·progress exercise report prepared by Ms Amy Shaw dated 30 June 2015 (R1.2, T35);
·report prepared by Dr Geoff Robey dated 27 July 2015 (R1.2, T38);
·report prepared by Dr Campbell dated 14 August 2015 (R1.2, T39);
·final exercise report prepared by Ms Amy Shaw dated 31 August 2015 (R1.2, T41);
·report prepared by Dr J L du Plessis, Consultant Neurologist and Rehabilitation Physician, dated 15 September 2015 (R1.2, T43);
·report prepared by Mr Eamonn McCloskey dated 28 October 2015 (R1.2, T47);
·report prepared by Dr Robert Nairn following an MRI on the Applicant’s right hip on 11 November 2015 (R1.2, T51 and T73);
·report prepared by Dr Gerald Lim, Orthopaedic Surgeon, dated 1 December 2015 (R1.2, T52);
·progress reports by People Sense regarding “right wrist injury, right shoulder and low back injury” dated 16 December 2015 (R1.2, T54), 29 January 2016 (R1.2, T61), 11 March 2016 (R1.2, T74), 21 April 2016 (R1.2, T82);
·reports prepared by Dr Gerald Lim, Orthopaedic Surgeon, dated 12 January 2016 (R1.2, T59) and 14 March 2016 (R1.2, T72);
·report prepared by Mr Garry Sutijono dated 8 February 2016 (R1.2, T62);
·report prepared by Mr Eamonn McCloskey dated 30 March 2016 (R1.2, T77);
·SKG radiology report dated 5 April 2016 (R1.2, T79);
·report prepared by Mr Eamonn McCloskey, Orthopaedic Spinal Surgeon, dated 11 April 2016 (R1.2, T80);
·report prepared by Dr M J Kent, Anaesthetist and Specialist in Pain Medicine, dated 12 May 2016 (R1.2, T83 and T84) and 23 June 2016 (R1.2, T88);
·report prepared by Dr Anthony Smith, General Orthopaedics, dated 29 July 2016 (R1.2, T91);
·report prepared by Dr Uyana Gayan Dayaratna, dated 10 October 2016 (R1.2, T95);
·report prepared by Dr Kit Frazer dated 10 December 2016 (R1.2, T100 at 342);
·reports prepared by Dr M J Kent, Anaesthetist and Specialist in Pain Medicine, dated 16 February 2017 (R1.2, T108) and 23 March 2017 (R1.2, T117); and
·report prepared by Dr Gerard Taylor, Sport and Exercise Medicine Physician, dated 2 March 2017 (R1.2, T116).
(c)Exhibit R1.3 (Application 2017/3194)
·report prepared by Mr Hideaki Edo, physiotherapist, dated 12 April 2014 (R1.3, T7);
·report prepared by Dr Josala Turagava after an ultrasound and x-ray of the Applicant’s right wrist, dated 16 June 2014 (R1.3, T9);
·report prepared by Dr Stephen Davis dated 7 July 2014 following an MRI on the Applicant’s right wrist (R1.3, T14);
·report prepared by Dr Jeff Ecker dated 15 July 2014 (R1.3, T15);
·report prepared by Dr Colin Coward dated 16 July 2014 (R1.3, T16);
·report prepared by Dr Jeff Ecker dated 20 August 2014 (R1.3, T18);
·report prepared by Dr Jeff Ecker dated 20 December 2014 (R1.3, T23);
·report prepared by Dr John Hayes, Consultant Rheumatologist, dated 15 June 2015 (R1.3, T29);
·report prepared by Dr Ai Tran, Rheumatologist, dated 15 July 2015 (R1.3, T31);
·report prepared by Dr Terry Hesselberg dated 29 July 2015 following an ultrasound on the right wrist (R1.3, T33);
·report prepared by Dr Paul Roche dated 31 July 2015 (R1.3, T36);
·report prepared by Dr Ai Tran dated 12 August 2015 (R1.3, T39);
·report prepared by Mr Sath Segran, occupational therapist, dated 27 August 2015 (R1.3, T41);
·report prepared by Dr L J du Plessis, Consultant Neurologist and Rehabilitation Physician dated 15 September 2015 (R1.3, T42);
·reports prepared by Dr Ai Train dated 8 and 9 October 2016 (R1.3, T43 and T44) and 2 November 2015 (R1.3, T46);
·reports prepared by Mr Sath Segran, occupational therapist, dated 5 November 2015, 10 December 2015 and 19 February 2016 (R1.3, T47, T48 and T57);
·progress reports of People Sense regarding “right wrist injury, right shoulder and low back injury” dated 29 January 2016 (R1.3, T54), 11 March 2016 (R1.3, T61), 21 April 2016 (R1.3, T65);
·report prepared by Dr Jeff Ecker dated 7 May 2016 (R1.3, T66);
·report prepared by Dr Bill Breidahl dated 13 May 2016 (R1.3, T68);
·report prepared by Dr Jeff Ecker dated 8 June 2016 (R1.3, T71);
·closure report prepared by People Sense dated 7 June 2016 (R1.3, T74);
·report prepared by Dr Anthony Smith, General Orthopaedics, dated 29 July 2016 (R1.3, T80);
·report prepared by Dr Uyana Gayan Dayaratna dated 10 October 2016 (R1.3, T88); and
·report prepared by Dr Jeff Ecker dated 9 February 2017 (R1.3, T100).
(d)Exhibit R1.4 (Application 2017/3211)
·report prepared by Dr Gerard Taylor, Sport and Exercise Medicine Physician, dated 2 March 2017 (R1.4, ST5)
(e)Exhibit R1.5 (supplementary T-Documents for all applications)
·radiology report prepared by Dr Mark Holland dated 4 January 2015 in relation to an ultrasound on the Applicant’s right shoulder (R1.5, ST3);
·report prepared by Dr Robert Nairn dated 11 November 2015 following an MRI of the right hip (R1.5, ST4 at 68);
·report prepared by Mr Garry Sutijono, physiotherapist, dated 21 January 2016 in relation to her right hip (R1.5, ST4 at 71);
·report of Dr Gerald Lim dated 23 November 2016 in relation to the Applicant’s lumbar spine and trochanteric area (R1.5, ST4 at 74);
·report of Dr Gerald Lim dated 20 December 2016 in relation to the Applicant’s right hip (R1.5, ST4 at 75);
·report prepared by Dr Jeff Ecker dated 20 August 2014 in relation to the Applicant’s wrist injury (R1.5, ST5 at 77 and ST6 at 85);
·radiology reports dated 20 August 2014 and 14 May 2016 (R1.5, ST5 at 79-82);
·report prepared by Dr Rodney Butler dated 19 August 2014 following CT of the right wrist and an x-ray and MRI of the Applicant’s left wrist (R1.5, ST6 at 83);
·reports prepared by Dr Ai Tran, rheumatologist, dated 15 July 2015, 28 July 2014, 8 September 2014, 1 September 2016 and 9 March 2017 (R1.5, ST6);
·report prepared by Mr Sath Segan, occupational therapist, dated 8 October 2015 (R1.5, ST6 at 89); and
·initial assessment report from People Sense dated 13 October 2015 (R1.5, ST6 at 91).
(f)Further medical reports
·report prepared by Dr Barrie Slinger dated 8 November 2017 in relation to the Applicant’s wrist injury (A4);
·report prepared by Dr Barrie Slinger dated 15 November 2017 in relation to the Applicant’s right shoulder, lumbar and right hip injuries (A5);
·report prepared by Dr Jeff Ecker dated 12 January 2018 in relation to the Applicant’s wrist injury (A6);
·supplementary report prepared by Dr Anthony Smith dated 31 October 2017 in relation to the Applicant’s injuries (R3);
·report prepared by Dr Phillip Meyerkort dated 24 November 2017 in relation to the Applicant’s injuries including her psychological injury (R4); and
·supplementary report prepared by Dr Phillip Meyerkort dated 9 February 2018 in relation to the Applicant’s wrist injury (R5).
THE APPLICATIONS
Application 2016/7037 - Accepted rotator cuff injury

The Respondent contends that the Applicant’s accepted rotator cuff injury had resolved by the time of her appointment with Dr Anthony Smith in July 2016. In the alternative, the Respondent contends that if the Tribunal were to find that the Applicant does continue to experience symptoms in relation to the accepted rotator cuff injury, those symptoms do not result in the requirement for treatment, nor do they result in an incapacity for work (Respondent’s SFIC paras 43 and 44).
The Applicant’s case is that her shoulder symptoms have been continuous since the incident in December 2014, albeit that they are now “at a minor level” and that “…there is insufficient basis on which to find that the chain of causation between the incident on 30 December 2014 and the shoulder symptoms has been broken” (Applicant’s SFIC paras 1 and 2 under the heading “Contentions”).
Medical evidence
Following the fall at work on 30 December 2014 the Applicant was examined by orthopaedic surgeon Dr Campbell. His report of 23 February 2015 (R1.1, T32) diagnosed a rotator cuff tear and recommended surgery in the form of rotator cuff repair.
Dr Campbell subsequently undertook that surgery on 15 April 2015 and his report of the same day (R1.1, T58) reported:
Arthroscopic assessment of this lady’s right glenohumeral joint showed she had a very superficial articular surface tear of the supraspinatus tendon. Apart from this the joint was normal to examination. Inspection of the subacromial space showed marked bursitis. An arthroscopic acromioplasty was performed and the bursa was excised. The distal end of the clavicle was excised to decompress the acromioclavicular joint which showed inflammatory post traumatic pannus.
The supraspinatus tear was not repaired during the surgery. In their respective evidence before the Tribunal, Dr Slinger and Dr Smith, both orthopaedic surgeons, said that not repairing the tear was a reasonable decision and one that indicated that, in the mind of the surgeon performing the operation, it was not a significant factor in the Applicant’s presentation.
Dr Campbell examined the Applicant six weeks after the surgery and his report dated 28 May 2015 (R1.1, T73) advised that:
Bronwynne is now six weeks post surgery and she is progressing well. She is off all medications except for simple paracetamol. She has active elevation comfortable to shoulder height.
Dr Campbell again reviewed the Applicant after a further six weeks and by his report dated 9 July 2015 (R1.1, T87) he reported that:
Bronwynne is now three months post surgery and I am happy with her progress to date. She has not sufficiently recovered to return to her work situation.
By report dated 14 August 2015 (R1.1, T96) Dr Campbell reported that:
From a purely shoulder point of view Bronwynne is doing very well. Unfortunately whilst doing her exercise program for her shoulder she has reinjured her wrist in the gym. This and her lower back problems are the things that are mainly affecting her ability to function.
Dr Campbell issued a workers’ compensation (WorkCover WA) progress certificate of capacity the same day (R1.1 T97) noting that the Applicant had no capacity for any work from 12 August 2015 until 12 October 2015.
At paragraph 20 of her closing submissions the Applicant describes the period after Dr Campbell operated as follows:
The shoulder steadily improved but the low back assumed more prominence. By determination 20 July 2015 (T92), the respondent accepted liability for a right trochanteric bursa injection and right L5/S1 facet joint injection and both were performed…Results were mixed.
After the last of Dr Campbell’s reports, that being the report of 14 August 2015 referred to in [52] above, there is little reference in the medical material to the Applicant’s right shoulder condition. In that regard the Applicant’s closing submissions after paragraph 20 (referring to the determination by the Respondent in July 2015 (R1.1, T92) to accept liability for the trochanteric bursa injection and for the L5/S1 Facet joint injection) move on to refer to reports by Mr McCloskey and Dr Lim (at paragraph 21 of the closing submissions) and thereafter to the reports of Dr Smith (paragraph 24) and Dr Taylor (paragraph 26). These reports dealt with the Applicant’s right hip and lower back complaints.
By a report dated 15 June 2015 (R1.1, T80), Dr John Hayes, consultant rheumatologist, who examined the Applicant on 3 June 2015 (seven weeks after the shoulder surgery) noted in relation to her shoulder that:
The portals from the recent arthroscopic surgery to the right shoulder were noted and have healed. They are not tender.
Forward flexion was to 160^o with abduction to 130^o and mild restriction of rotary movements. There was mild tenderness over the right AC joints and also over the subacromial space.
In a report dated 30 June 2015 (R1.1, T82) by Ms Amy Shaw, exercise physiologist, to Dr Alastair Johnston, it was noted that:
.. Ms Lock displayed minor ROM improvements with reference to her lower Back, and significant improvements in restoring her right Shoulder ROM to within normal limits following surgical intervention.
That report assessed the right shoulder flexion to be 180 degrees, abduction 175 degrees, adduction – deltoid landmark, external rotation to be “FROM” and internal rotation to be 6cm less than level.
In a report dated 15 September 2015 (R1.1, T107) prepared by Dr du Plessis, consultant neurologist and rehabilitation physician, it was noted (R1.1, T107 at 247), based on the history given to Dr du Plessis by the Applicant, that:
…He [Dr Campbell] operated on her and her shoulder was “heaps” better. Ms Lock however informed me that whilst she was doing shoulder and back exercises her wrist symptomology flared-up significantly. She now has nearly a full range of right shoulder movement and said that she believes it is 80% better.
At page 13 of that report (R1.1, T107 at 256) Dr du Plessis advised that his examination of the Applicant showed that:
Ms Lock had virtually a full range of right shoulder movement. She had some pain on abduction, but she could virtually achieve full abduction, although she did this slightly slower on the right side than on the left side. Shoulder extension was normal and pain-free. Shoulder flexion was normal and pain-free and abduction was also normal and pain-free.
The medical reports after this time refer less to the shoulder condition. They concentrate more on the back/hip and wrist conditions. However, as the Respondent notes in its closing submissions at paragraph 16, there is reference in the notes of the treating general practitioner, of the Applicant complaining of soreness in her shoulder. Paragraph 16 of the Respondent’s closing submissions is:
Consistent with her claim that her shoulder symptoms never fully resolved, the notes of Ms Lock’s attendances on her general practitioner [R1.5, ST1] include references to shoulder pain in the period following the operation. Of note is the entry dated 12 December 2016 that stated “Right shoulder pain is [getting] worse”. [R1.5, ST1 at 14] This entry is consistent with the deterioration in Ms Lock’s right shoulder condition demonstrated by the results of examinations undertaken in mid-2016 and 2017 (discussed in the following paragraphs). On 10 October 2016 [R1.1, T219] Dr Dayaratna reported that it was “reasonable to assume” that Ms Lock’s workplace injuries “played a role and are continuing to play a role in her symptoms”. However, he did not address Ms Lock’s post-operative recovery, and then the recurrence of right shoulder symptoms.
The Applicant was examined by Dr Anthony Smith, orthopaedic surgeon, on 18 July 2016. At page 3 of his report dated 29 July 2016 (R1.1, T204 at 504) Dr Smith, under the heading “Investigations”, observed that:
There was an x-ray with her and an ultrasound of the right shoulder undertaken on 30 December 2014. The radiologist describes very little in the way of abnormality.
In my opinion, there is sclerosis in the greater trochanter area and there is also arthritic change in the acromioclavicular joint.
and at page 5 (R1.1, T204 at 506) under the heading “Current Status”:
Today, she describes really no problems with the right shoulder. There is the occasional ache in the right shoulder. She has no neck pain. There is pain in the low back, more on the right side. It also occurs in the trochanteric area and in the groin.
…
She said she is very happy with the operation outcome regarding the right shoulder.
and at page 6 (R1.1, T204 at 507) under the heading “Examination”:
Clinical examination demonstrates her to be a little overweight. She is in no distress. There is a normal cervical lordosis. She has a completely normal range and rhythm of movement of both shoulders actively and passively. There are arthroscopy scars about the right shoulder. She has no neurological deficit in either upper limb.
and at page 7 (R1.1, T204 at 508) under the heading “Opinion”:
She was diagnosed with a tear of the supraspinatus tendon, on the basis of an ultrasound following the fall of 30 December 2014 and rather interestingly, this tear in the supraspinatus tendon was seen, but nothing was done about that. Instead, she had an excision of the distal clavicle and an acromioplasty and a bursectomy.
In any event, she has done well with regard to the right shoulder.
In response to specific questions put to Dr Smith in the brief for examination and report issued to him by the Respondent’s lawyers, he advised at pages 9 and 10 of his report (R1.1, T204 at 510 and 511), citing a number of medical authorities, that :
With regard to the right shoulder, rotator cuff disease is very common. It is not 100% of the population, but it would affect at least 90% of the population.
…
It is rather interesting that the indication for the arthroscopy of the shoulder is the tear of the supraspinatus, which was not actually treated at all. It was seen and noted to be fairly minor and she has undergone a decompression procedure for her rotator cuff i.e., an acromioplasty, excision of the distal clavicle and a bursectomy.
The shoulder is clinically normal bilaterally, so it would appear the operation has been successful and she has recovered from an injury to the right shoulder that was sustained on 30 December 2014.
As the Respondent notes in its closing submissions (paragraphs 19 and 20), Dr Smith agreed in cross-examination that the incident of 30 December 2014 could have aggravated the Applicant’s rotator cuff disease and that once rendered symptomatic she would have symptoms from time to time.
Orthopaedic surgeon Dr Barrie Slinger examined the Applicant on 30 October 2017 and 13 November 2017 and prepared two reports. The first report dated 8 November 2017 (A4) related to the Applicant’s wrist injury and the second report, dated 15 November 2017 (A5), related to the Applicant’s hip/back claim and shoulder claim.
In his report dated 15 November 2017 Dr Slinger reported that the Applicant’s range of motion in her shoulder was reduced on all planes, with significant reductions in flexion and abduction. He diagnosed “…soft tissue injury to the right shoulder, to a minor tear of the rotator cuff, in association with a subacromial bursitis”. He stated that the diagnosed condition was “…attributable to the incident of 30 December 2014 and the work performed has contributed to a significant degree”.
In cross-examination, Dr Slinger agreed that the Applicant had experienced a good post- operative recovery. He also agreed that there was a substantial variation in the range of motion he assessed to that previously measured by Dr Hayes, Dr du Plessis and Dr Smith. Dr Slinger said that it was plausible that there may have been some loss of range of motion as a result of an interruption to the Applicant’s rehabilitation, but not to the extent demonstrated. Dr Slinger also said that the loss of range of motion could be attributed to the Applicant not using her right arm. He accepted that if the Applicant had stopped using the right arm, there would have been muscle wasting. When taken to that part of his report that recorded no muscle wasting or tenderness, Dr Slinger stated that any wasting might have been less obvious because the Applicant is a woman.
As to his diagnosis, Dr Slinger agreed that the bursitis had been treated by surgery, and that if it had recurred post-operatively it was not related to the fall on 30 December 2014. Dr Slinger considered that bursitis was a small issue in the Applicant’s presentation, but must be present because she has restricted range of movement. Dr Slinger stated that his opinion that the Applicant’s right shoulder symptoms were attributable to the 30 December 2014 fall was based upon the history that she had provided – namely that her symptoms had been present since the fall – and that he had not taken into account other medical reports when forming his opinion (Transcript, pp 68-69).
On re-examination Dr Slinger made the following assessment of the link between the incident on 30 December 2014 and her ongoing shoulder symptoms (Transcript, pp 80-81):
MR BRUNS: Does that kind of continuity of symptoms have a bearing on whether the current condition has a link back to 30 December 2014?
DR SLINGER: I can’t say it has a link. All I can say is that the type of injury she suffered would be consistent with those sorts of symptoms you are describing, forgetting about recovery and all the other things that we’ve talked about. But, if you said to me, this woman had an injury then and now has some symptoms now, I would say that is quite consistent with that injury, forgetting what went on before and whether it got better, or it didn’t.
Dr Phillip Meyerkort, consultant occupational physician, examined the Applicant on 15 November 2017 and prepared a report dated 24 November 2017 (A5). His findings are consistent with those recorded by Dr Slinger in his report of 15 November 2017 (R4). Dr Meyerkort reported his understanding that the Applicant had not sustained “any significant bony or ligamentous injury” as a result of the fall on 30 December 2014, and stated that he was unable to attribute any continuing physical condition to that incident. He stated, and confirmed in cross-examination, that the most prominent pathology at the time of his examination of Ms Lock was her psychological state.
Issues and jurisdiction
The Applicant’s SFIC identifies the issue in respect of this application as being:
…whether the Applicant’s remaining right shoulder symptoms relate to the incident of 30 December 2014 and whether liability should continue to be accepted for this injury.
The Respondent’s SFIC identifies the issues in respect of this application to be:
1. whether the applicant has continued to suffer, and is presently suffering, from the effects of the accepted rotator cuff injury such that the respondent has continued to be, and is presently, liable to pay compensation to the applicant for reasonable medical expenses and incapacity under ss 16 and 19 of the SRC Act in relation to the accepted rotator cuff injury: and
2. if the Tribunal was to determine that the effects of the accepted rotator cuff injury had not yet ceased, whether the applicant continues to require medical treatment and remains incapacitated as a result of the accepted rotator cuff injury.
The Applicant’s closing submissions (paragraph 39(a)) states the issue to be:
…whether the right shoulder injury was “resolved” or whether the remaining (and undisputed) symptoms continue to relate to the incident on 30 December 2014.
The Respondent’s closing submissions (paragraph 11) identify the issue to be:
…whether as at 25 October 2016 those symptoms were attributable to the “injury” (however diagnosed) for which compensation was claimed and in respect of which liability to pay compensation under the SRC Act was accepted. If the Tribunal is satisfied that the symptoms are attributable to the accepted “injury” (again, however diagnosed), it must then consider whether Ms Lock is incapacitated for work as a result of or requires medical treatment for that injury.
The end result of all that is that is it far from clear, at least to the Tribunal, what the parties think the issue for determination is arising out the reviewable decision of 1 December 2016 (R1.1, T231). The question of what the issue is, or the issues are, is further confused, or potentially explained depending on how one views it, by paragraph 6 of the Applicant’s Supplementary Statement of facts, Issues and Contentions which says:
In one sense, the reviewable decision is academic at present because it is not claimed that any additional incapacity such as to raise an entitlement of a weekly payment, or any specific medical treatment is necessary at this moment. However, that is no reason to close off the claim given that in the future such entitlements (which could be challenged at that time) might arise.
and by paragraph 9 of the Applicant’s Submissions in Reply which says:
…The fact that the applicant is not presently claiming incapacity or requiring medical treatment for residual symptoms does not mean that the reviewable decision should be upheld; if the applicant in the future feels she is incapacitated or needing medical treatment as a result of shoulder symptoms, a decision can be made at that point about whether there is a causal relationship.
The Tribunal does not disagree with the Applicant’s statements in [75] that, in effect, the reviewable decision is academic. It is academic for the reason identified by the Applicant, namely that it was made in the absence of any claim for any entitlement for compensation under s 16 or s 19 of the SRC Act. As noted at [2], the reviewable decision was relevantly that the Applicant had, as at 25 October 2016:
…no present entitlement to compensation in respect of medical expenses under section 16 of the SRC Act, and
…no present entitlement to compensation for incapacity payments under section 19 of the SRC Act (R1.1, T220 at 552).
In addition to the Applicant not having claimed any present entitlement as at 25 October 2016 under s 16 or s 19 of the SRC Act, the Respondent had not previously made any determination of any such entitlement as at 25 October 2016. It is therefore questionable whether what the Respondent did on 25 October 2016 (affirmed in the supposedly reviewable decision of 1 December 2016) was to “reconsider a determination” for the purposes of s 62(1) of the SRC Act. For the decision identified in [76] to be a “reconsideration of a determination” for the purposes of s 62(1) of the SRC Act, the Respondent would have had to have previously determined that as at 25 October 2016 the Applicant did have present entitlements to payment in respect of medical expenses under s 16 of the SRC Act and/or for incapacity payments under s 19 of the SRC Act. It had not made such determinations.
Alternatively, to come within the meaning of a “determination” which the Applicant sought review of under s 62(2) of the SRC Act leading to a reconsideration under s 62(4) of the SRC Act, the determination of 25 October 2016 would had to have been a determination under s 16 or s 19 of the SRC Act (see definition of determination in s 60(1) of the SRC Act). In the absence of any relevant claims being made under s 16 or s 19 of the SRC Act for payment of such entitlements, it is difficult to see how what was done on 25 October 2016 could be considered to be a determination under s 16 or s 19 of the SRC Act for that decision to come within the operation of ss 62(2) to 62(4) of the SRC Act.
The Tribunal’s power to review decisions is contained in s 64 of the SRC Act and is limited to reviewable decisions which are defined in s 60(1) of the SRC Act to mean “a decision made under subsection 38(4) or section 62”. The decision in this application was not a decision under s 38(4) of the SRC Act. For the reasons set out in [77] and [78] it is not clear whether the decision was a decision to which s 62 of the SRC Act would apply. Accordingly, the Tribunal is not satisfied that it has jurisdiction to review the decision which is the subject of this application.

If the Tribunal is wrong on the issue of jurisdiction and it does have jurisdiction to review the decision, then the consideration is whether the decision under review should be:
(a)affirmed;
(b)varied; or
(c)set aside and either:
(i)a substitute decision made; or
(ii)the matter be remitted to the decision maker for reconsideration.
(see s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act)).
The Respondent’s position is that the decision should be affirmed. The Applicant’s position (paragraph 10 of the Applicant’s Submissions in Reply) is that:
The reviewable decision of 1 December 2016 should be set aside.
Unlike the other three applications in which the Applicant proffers the substitute decision that the Applicant seeks, in relation to this application no substitute decision is proffered. The Tribunal’s powers on review are prescribed by s 43 of the AAT Act. Section 43(1) of the AAT Act does not empower the Tribunal merely to set aside a decision. If it sets aside the decision it must either substitute a decision or remit the matter to the decision-maker.
What decision then would the Applicant have the Tribunal make in substitution for the decision under review? The possible answers to that question are illuminating. Given the specificity of the decision under review, the logical converse substitute decision would be to the effect that the Applicant did, as at 25 October 2016, have entitlements to compensation in respect of medical expenses under s 16 of the SRC Act and for incapacity under s 19 of the SRC Act. The obvious nonsense of that potential substitute decision is, in effect, identified by the Applicant in the submissions identified in [75]. In the face of the Applicant not having claimed, either at the time of the making of the decision, or subsequently, any such entitlement, such a substitute decision would be meaningless.
The only other likely substitute decision would be one that reflects an answer to the question posed by the issue for determination identified by the Applicant as set out in [71] and [73], namely, whether the Applicant still suffers from an injury to the right shoulder and whether the symptoms relate to the work incident on 30 December 2014. Again, however, in the absence of any relevant claim having been made by the Applicant, there can be no liability and the answer to that question is irrelevant.
Further, the questions posed by the issues identified by the Applicant in [71] and [73] are also meaningless in that the Applicant does not identify the date or period in relation to which she seeks the determination as to the ongoing presence of symptoms and their connection to the incident of 30 December 2014. Even if the questions were taken to require an answer relating to the Applicant’s current condition or her condition at the date of the most recent medical evidence, that answer would be meaningless because the Applicant makes no current claim. Again, the Applicant’s submissions noted at [75] demonstrate the pointlessness of the exercise that the Applicant is apparently asking the Tribunal to undertake. As the Applicant notes:
… if the applicant in the future feels she is incapacitated or needing medical treatment as a result of shoulder symptoms, a decision can be made at that point about whether there is a causal relationship.
The Tribunal agrees. If, at some future time the Applicant feels that she is entitled to compensation under s 16 or s 19 of the SRC Act, then, obviously, the first thing that she would need to do is make a claim, and that claim, or those claims will then be assessed on the basis of her condition and the evidence at that time.
The Tribunal also notes that if no relevant claim has been made for compensation under s 16 of the SRC Act, then, by operation of s 54(1) of the SRC Act, “Compensation is not payable to a person under this Act…”. As it seems to be conceded by the Applicant that no relevant claim for compensation under s 16 or s 19 of the SRC Act has been made, then the decision under review as set out in [76] must be correct. It is a gratuitous, but accurate statement of the legal position. There being no relevant claim having been made as at 25 October 2016, by operation of s 54(1) of the SRC Act, there was no liability for payment of compensation to the Applicant under the SRC Act.
For the above reasons, the Tribunal is of the view that the decision under review is, as a statement of the legal position as at 25 October 2016, correct and, if the Tribunal considered that it did have jurisdiction, it would affirm the decision.
Application 2017/1827 - Claimed hip injury
and
Application 2017/3211 - Proposed medical treatment of ultrasound guided PRP injections of the gluteus minimus tendon
Application 2017/1827 relates to the decision made on 24 March 2017 (R1.2, T118) which affirmed a determination by a delegate of the Respondent on 17 February 2017 (R1.2, T109) that the Respondent was not liable to pay compensation to the Applicant under s 14 of the SRC Act in relation to a claimed injury described as “hip, thigh and buttock pain right side”.
Application 2017/3211 relates to the decision dated 3 May 2017 (R1.4, ST12) which affirmed a determination dated 24 March 2017 (R1.4, ST6) which denied liability to pay compensation for ultrasound guided PRP injection of the gluteus minimus tendon under section 16 of the SRC Act.
It is appropriate to consider these two applications together as their determination requires consideration of whether the Applicant suffered an injury, as defined in s 5A of the SRC Act, to her right hip in the fall on 30 December 2014 and, if it is found that she did, whether the proposed injection into the gluteus minimus tendon is a reasonable medical treatment in relation to such injury.
The evidence
The Applicant’s claim in these applications relates to her right hip. The Applicant’s claim is that the symptoms that she suffers in her right hip relate to her accident on 30 December 2014 when she says that she fell and landed on her right buttock.
The Respondent questions the Applicant’s version of the fall, in particular her claim that she landed on her right buttock. The Respondent in its closing submissions argues as follows:
63.The starting point for the Tribunal in these reviews will be to determine what happened in the fall on 30 December 2014. In this regard, there is a conflict in the evidence as to how the fall occurred, and whether Ms Lock landed on her left or right hip.
64.In his report dated 15 June 2015 [R1.2, T33] Dr Hayes recounted the following history:
On 30 December 2014 whilst working at the Kwinana grain depot, she had to take evasive action whilst escaping from a snake. As a result she fell landing heavily on her left buttock. She also experienced pain in the right shoulder.
65.In his report dated 15 September 2015 [R1.2, T43], when recounting the history of the fall given to him, Dr du Plessis said “She reported turning to the left and was on the ground after falling on her buttock”.
66.In his report dated 15 November 2017 [A5] Dr Slinger also referred to Ms Lock landing on her “left side and buttock, at that same time, catching a conveyor belt with her right hand”. In his evidence in chief, Dr Slinger referred to his notes of the examination, and stated that he had not specified which hip she landed on.
67.In her statement dated 14 July 2017 [R6] Ms Lock described falling as she turned to evade the snake. She stated that she landed on her buttock, but did not say which. In her later statement, Ms Lock said she fell on her right buttock [A1].
68.It is entirely consistent with the history recorded by Dr Hayes, Dr du Plessis and Dr Slinger and the “surrounding landscape” as shown in the photograph and described in Ms Lock’s oral evidence for Ms Lock to have fallen as she turned to her left, reaching out with her right arm to catch herself and falling onto her left buttock. It is open to the Tribunal to be satisfied that the fall happened in this manner. If so satisfied, it follows that the Tribunal can also be satisfied that the fall did not result in any injury (however diagnosed) to Ms Lock’s right hip.
The Tribunal rejects the Respondent’s argument. It is the case that Dr Hayes in his report of 15 June 2015 did say that the Applicant landed on her left buttock. Dr Hayes did not give evidence. Accordingly, the Tribunal is unable to make any assessment of the basis on which Dr Hayes made that statement in his report.
The Applicant’s evidence was unequivocal. In response to the question in examination-in-chief of how she landed, she said:
MR BRUNS: You landed - - -?
MS LOCK: On my right side. I landed on my - sideways on my hip and my bum.
(Transcript, p 14)
The Applicant was cross-examined on that issue (Transcript, pp 19-21) and was consistent in her claim that she landed on her right buttock/hip. It was also put to the Applicant in cross-examination that she had given different versions of the fall and, in particular, the side of her body on which she landed. It was put to her that (Transcript, p 20):
MS DOWSETT: Well, I suggest to you that the history that you’ve given previously to Dr Hayes, Dr Du Plessis and Dr Slinger is correct?
MS LOCK: Yes (indistinct).
MS DOWSETT: And that you turned to your left, reached across your body with your right arm reaching out for the conveyor belt, and that’s when you - how you grabbed and slipped wrenching your arm and landing on your left side?
MS LOCK: I can’t argue with that then.
MS DOWSETT: Do you accept that that’s how it happened?
MS LOCK: No.
…
MS DOWSETT: And I suggest to you that you’ve changed the way you fell to now explain why the symptoms are in your right hip?
MS LOCK: No, I haven’t changed it.
MS DOWSETT: So you say those three doctors have just written it down wrong?
MS LOCK: I don’t know. By the look of it, yes, they have, because I’ve questioned each time they’ve done it, and I was told it’s okay.
In relation to the descriptions of the fall and the side on which the Applicant landed in the three medical reports identified by the Respondent, as noted at [92], Dr Hayes was not called to give evidence, so the accuracy of his 15 June 2015 report recording the Applicant (presumably) telling him that she landed on her left buttock cannot be tested.
The second report relied on by the Respondent in this regard is that of Dr du Plessis of 15 September 2015 quoted at paragraph 65 of the Respondent’s closing submissions (see [92] above). Dr du Plessis did not give evidence. That report, however, does not, as seems to be suggested by the Respondent, make any statement as to which buttock the Applicant landed on. It does not follow that because she turned to the left and slipped that necessarily she must have then landed on her left buttock. Further, Dr du Plessis’s report of 15 September 2015 noted that:
Her pain is located in the lower back and the right sacroiliac joint region and just above this area.
and
Occasionally the pain radiates towards her right side and then mainly into the right hip where the pain can be quite severe at times.
(R1.2, T43 at 128)
Dr du Plessis’s report does not, as suggested by the Respondent, indicate that the Applicant had given Dr du Plessis a history of having landed on her left buttock. Not only is Dr du Plessis’s report neutral on which side she landed on, but identifies the pain reported by the Applicant being to her right hip area. This is not supportive of the argument that the Applicant changed her story from landing on her left side to her right.
The third medical report relied on by the Respondent to argue that the Applicant changed her story as to which side she landed on is that of Dr Slinger who, in his report dated 15 November 2017 (A5), noted that the Applicant:
…in an attempt to take evasive action, slipped, and fell, landing on her left side buttock…
In examination-in-chief, Dr Slinger’s evidence (Transcript, p 58) was that:
MR BRUNS: Moving to your other report dated 15 November, on page 2 you talk about the accident, slipping and falling, landing on her left side. Does your note of the discussion with Ms Lock mention left side?
DR SLINGER: No, it doesn’t mention either, but looking at my notes today, if I may just read out to you what I wrote. I can’t put my hand on it, but I wrote that she fell to her right side, grasping the conveyer belt, and then fell onto her hip, but I don’t specify which hip. But on reflection, if you’re going to fall to the right-hand side and grab a conveyer belt, I don’t really see how you can fall onto the left side as well.
MR BRUNS: Is it possible that you’ve got the left side from some other document that was given to you?
DR SLINGER: Dr Hayes - I had written down - mentions in June 2015 that she fell onto her left buttock as a result of a fright with a snake, so maybe I got it from there.
Dr Slinger was also cross-examined on this issue. His evidence in cross-examination was to the effect that he dictated his report, his secretary typed it and that he read it before he signed it but that he would not necessarily check the written report for details such as whether the patient landed on the left or right buttock. His evidence (Transcript, pp 59-60) was as follows:
MS DOWSETT: Dr Slinger, if I can just pick up on that description of the injury that you were reading from your notes. As I understood your evidence you said that there was nothing in your notes that told you which side of the body she fell on. That’s correct?
DR SLINGER: That’s correct.
MS DOWSETT: And you have written in your report that she fell on the left side?
DR SLINGER: Yes.
MS DOWSETT: We see from your report that you examined her on 13 November 2017?
DR SLINGER: Yes.
MS DOWSETT: And prepared the report on 15 November 2017?
DR SLINGER: Yes.
MS DOWESETT: I take it that you read through the report after - it was transcribed for you, or did you type it up yourself?
DR SLINGER: No, I didn’t type it up myself. I did read through it, yes.
MS DOWSETT: You did read through it?
DR SLINGER: Yes.
MS DOWSETT: Would you agree that your recollection of your assessment of Ms Lock would have been better two days after the assessment, so on the 15th, rather than today, some months after the assessment?
DR SLINGER: Not necessarily. I don’t necessarily look at left and right, I rely on my typist to type down my dictation. I don’t read every single word that I’ve typed or had typed. I look at the main gist of it and what it means.
MS DOWSETT: And the main gist of what you’ve got there under the heading History of Injury, you’re describing the circumstances of the accident?
DR SLINGER: Yes, I believe so.
MS DOWSETT: And you would agree that those circumstances are particularly relevant in working out what the injury is and how it occurred?
DR SLINGER: Not particularly, no. The site of it, possibly, but not the type of injury, no.
MS DOWSETT: The site of it, the manner in which she fell is important?
DR SLINGER: Most times, yes, because we fall onto something and it’s going to hurt, and it would be reasonable to assume that she fell onto one or other hip and it would be painful.
The effect of Dr Slinger’s evidence on this issue is that his notes made at the time of his examination of the Applicant do not indicate that she advised him that she fell on her left hip, that he relies on his secretary to include some of the detail included in his reports and that he does not check every word of reports but rather checks “the main gist” of the report. Further, he cannot discount the possibility that the statement that the Applicant landed on her left side may have come from Dr Hayes’ report of 15 June 2015.
While the Respondent points to the reports of Dr Hayes and Dr Slinger referring to the Applicant as having landed on her left side/buttock, the reports of other doctors made around the time that Dr Hayes prepared his report and before Dr Slinger prepared his report consistently refer to the Applicant having symptoms in the right hip. These include:
·Dr Robey (Perth Radiological Clinic) report dated 27 July 2015 (R1.2, T38) which refers to the Applicant being “Tender over the right trochanteric bursal region”;
·Dr McCloskey (Orthopaedic Surgeon) report dated 28 October 2015 (R1.2, T47) wherein he says “She presents today predominantly with pain in the back, right hand side lower down and there is also trochanteric pain. The symptoms have been present for about 10 months”;
·Dr Dayaratna (GP) referral to Mr Lim dated 16 November 2015 (R1.2, T49) which identified the presenting problem as “Ongoing R hip pain following a work related injury”;
·Report of Dr Nairn of Perth Radiological Clinic dated 11 November 2015 (R1.2, T51) reporting on MRI of right hip undertaken on 11 November 2015; and
·Dr Lim (Murdoch Orthopaedic Clinic ) report dated 1 December 2015 (R1.2, T52) which describes the incident as “She had a fall ten months ago trying to avoid a snake when she was at work and landed on the right side.”
In relation to the claimed inconsistency between the Applicant’s statements of 14 July 2017 (R6) and 12 January 2018 (A1), it was put to the Applicant that “…you’ve changed the way you fell to now explain why the symptoms are in your right hip” (Transcript, p 20). The Applicant denied that she had changed her story. The change that the Respondent points to is, that it was only in the second statement of 12 January 2018 that the Applicant specified that when she fell she landed “on my right buttock” (paragraph 31). Her first statement, at paragraph 21 of R6, said that she had “landed on her buttock”. While that is the case, the Tribunal notes that the Applicant’s first statement identified the pain as being in her right hip (paragraph 38) wherein the Applicant stated that “I have always experienced pain in my right hip…”. The Tribunal does not accept that the difference between the two statements amounts to the Applicant “changing the way [she] fell”.
Accordingly, the only evidence that the Respondent can point to supporting the argument that the Applicant initially said that when she fell she landed on her left side is the statement in Dr Hayes’ report quoted at [92] above. Dr Hayes did not give evidence. The other report to refer to the Applicant falling on her left side is the report of Dr Slinger who confirmed that his notes taken at the time of his examination of the Applicant did not indicate that she had told him that she fell on her left side and conceded that that may have come from Dr Hayes’ report.
The other reports prepared after the accident, and well before a claim was made by the Applicant in relation to her right hip symptoms, all indicate pain on the right side and in the right hip area. The Applicant’s evidence at the hearing was consistent and unequivocal. In effect the sum total of the evidence suggesting that the Applicant landed on her left side rather than her right side is one statement in one report by a doctor who did not give evidence at the hearing. The Tribunal accepts the Applicant’s version of the fall and that she landed heavily on her right buttock/hip.
Medical evidence
The initial medical reports and certificates following the Applicant’s fall at work on 30 December 2014 related to her right shoulder injury and the accepted rotator cuff injury. The first certificate of capacity (R1.2, T3) issued on the day of the fall, 30 December 2014, identified only the right shoulder injury.
By letter dated 5 January 2015 Dr Alastair Johnston referred the Applicant to Dr Craig Armstrong, chiropractor, for treatment to her right sided lower lumbar spine dysfunction. Through the period following the accident up to June 2015 the Applicant received treatment for the accepted rotator cuff and accepted lumbar sprain injuries. The progress certificates of capacity during the period up to June 2015 (R1.2: T4, T6, T8, T9, T13, T14, T18, T20, T21, T22, T27, T29, T31 and T32) insofar as they identified the injury causing the incapacity, identified the accepted rotator cuff and accepted lumbar sprain injuries as being the cause of the Applicant having no capacity for work.

Progress certificates of capacity dated 9 July 2015 (R1.2, T36) and 14 August 2015 (R1.2, T40) did not identify the condition which, according to those certificates, caused the Applicant to have no capacity to work. The progress certificate of capacity dated 16 November 2015 (R1.2 T50) appears to be the first to identify a hip injury as causing the Applicant to have limited capacity to work. It specified the diagnosis (R1.2, T50 at 156) as “R hip back pain”. The progress certificate of capacity dated 16 December 2015 (R1.2, T55) identified the relevant injury as “L hip, back pain”. In the Tribunal’s view the reference to left hip back pain in the second of those certificates is an error as it is clear from the other medical evidence that the examinations (including MRI) and the treatment were of the Applicant’s right hip. The progress certificate of capacity issued on 15 January 2016 (R1.2, T60) identified the diagnosis as being “R hip, R sided back and R shoulder pain”.
Progress certificates of capacity issued after that time identify the cause of the Applicant’s partial incapacity in varying ways, however, with a few exceptions, included reference to a right hip injury: see R1.2 T58, T60 T71, T75, T81, T84, T87, T90, T92, T93, T100 (which includes a bundle of such certificates issued up to December 2016), T102, T105 and T114 (issued 1 March 2017).
The medical report which most specifically deals with the Applicant’s right hip condition is that of Dr Slinger dated 15 November 2017 (A5). As the Respondent notes in its closing submissions (paragraph 70), Dr Slinger diagnosed the Applicant as suffering from “soft tissue injury to the right hip, with demonstrable tendinopathy, demonstrated on the MRI of the right hip, in association with extensive tearing of the acetabular labrum”. Dr Slinger supported the recommendation for PRP injections in the right gluteus minimus tendon, deferring to the opinion of Dr Taylor, sports and exercise medicine physician, in this regard. Dr Taylor’s report of 2 March 2017 is included in R1.2, T116 at 379-380.
Dr Slinger said that it was “impossible” to determine whether physiological changes seen on the right hip MRIs were present prior to the fall on 30 December 2014, however, he went on to say that:
…, what can be demonstrated with certainty is that pathology was asymptomatic, and in the absence of the injury, may well have continued asymptomatic indefinitely.
In cross-examination in relation to the connection between the Applicant’s fall in December 2014 and her hip symptoms, Dr Slinger said as follows (Transcript, p 70):
MS DOWSETT: And so should the tribunal understand that it follows from what you’ve written in your report that you also cannot say on the balance of probabilities that those changes to the right hip were caused by the fall?
DR SLINGER: Correct.
…
MS DOWSETT: So this is where you say that Ms Lock’s condition is attributable to the incident of 30 December, and work performed has contributed to a significant degree?
DR SLINGER: Yes.
MS DOWSETT: As I read it, that answer applies to all of the conditions you’ve diagnosed. Is that how we should understand that?
DR SLINGER: What I would like you to understand, what I’m trying to say is that she has underlying conditions which were present, I believe, for some time; but they were asymptomatic, and in the absence of the injury - the fall - she may well have continued asymptomatic as a result of the degenerative changes in both the lumbar spine as well as at the right hip. In other words, if those changes were pre-existing, they were causing any symptoms until the fall or until the injury.
MS DOWSETT: And it’s that last part of your answer that I want to pick up on. In order to make that inclusion and attribution, would you agree you need to look at what she reports after the injury?
DR SLINGER: When you say after, you mean straight after, or do you mean the first few weeks or what?
MS DOWSETT: I mean all of - - -?
DR SLINGER: But, the sooner - - -
MS DOWSETT: All of the things that she says. So, the immediate aftermath, the weeks and months and now years that have followed?
DR SLINGER: The sooner that people report symptoms following an injury, the more likely you are to believe them, if that’s what you wish me to say, yes.
MS DOWSETT: I wish you to answer however you consider appropriate?
DR SLINGER: I’m answering exactly as I think you want me to answer, as in, to answer your question and that is, the sooner people report symptoms following an injury or accident, the more likely it is to relate to that accident.
MS DOWSETT: And so, if she did not report hip symptoms for some time after the accident, on your evidence, the hip symptoms are less likely to be the result of that accident?
DR SLINGER: What do you mean by some time?
MS DOWSETT: Well, she doesn’t report them – she – the first reference to them is when she goes to see Dr Hayes on 3 June 2015?
DR SLINGER: And that is six months later.
MS DOWSETT: Yes?
DR SLINGER: Yes. If that was the case and those symptoms had commenced then, then I wouldn’t relate them to the accident – if they commenced then.
In his evidence Dr Slinger also distinguished between hip pain and pain in the Applicant’s trochanteric region. In that regard, when commenting on the observations in Dr Hayes report of 15 June 2015 (R1.1, T80) that:
There was moderate tenderness over the right greater trochanter and Ms Lock volunteered that walking aggravated pain over the right lateral hip region. She most likely has a degree of right sided Trochanteric Bursitis as well (page 5 of the report at R1.1, T80 at 185).
…
The only new condition which the patient has developed is that of symptoms of right Trochanteric Bursitis. This has only developed in the past 6-12 months and is not related to her employment (page 8 of the report at R1.1, T80 at 188).
Dr Slinger’s evidence was as follows (Transcript, p 71):
MS DOWSETT: Would you agree that he is identifying two aspects of pain – back pain and pain in the hip region?
DR SLINGER: He is, yes.
MS DOWSETT: And then, over on to page 8, in his answer, 4(a), he refers to the trochanteric bursitis as a new condition?
DR SLINGER: Yes.
MS DOWSETT: And he says that it is not related to her employment?
DR SLINGER: That’s so for cancer. Nothing to do with her hip.
As to the issue of whether the Applicant had underlying conditions that had been rendered symptomatic by the fall, Dr Slinger agreed that it was appropriate to look at the reports of symptoms after the fall, and that symptoms reported closer in time to the fall were more likely to relate to the fall. Dr Taylor agreed that when assessing causation it was appropriate to consider the timing of onset of symptoms (Transcript, p 104). His evidence was:
MS DOWSETT: In terms of addressing causation is that something that you were able to offer an opinion of?
DR TAYLOR: I would say if there’s a fall, as talked about previously, that could be a mechanism of injury in the gluteal tendon.
MS DOWSETT: And in order to assess whether it is a probable cause is it relevant to have regard to the timing of onset of the symptoms relative to the incident?
DR TAYLOR: Yes, agreed.
What then do the medical records show about the onset of symptoms in the Applicant’s right hip following the fall in December 2014? As noted at [109], the first time that a progress certificate of capacity referred to the Applicant’s right hip as being a cause of incapacity is the certificate dated 16 November 2016 (R1.2, T50). Obviously the Applicant had complained of hip pain prior to November 2016. In his letter of referral to rheumatologist Dr Tran dated 27 July 2015 (R1.2, T38), Dr Robey referred to “Lower back pain and right hip following a work accident”.
Certainly by the time that Dr du Plessis examined the Applicant on 2 September 2015 she was complaining of pain in her right hip. In his report of 15 September 2015 (R1.2, T43 at 128) Dr du Plessis reported:
Her pain is located in the lower back and the right sacroiliac joint region and just above this area. It is constantly present at the level of 4/10 in severity, but flares-up at night, which requires her to sleep on four pillows in order to become comfortable.
Occasionally the pain radiates towards her right side and then mainly into the right hip where the pain can be quite severe at times. Initially it had spread into her right foot and she experienced pins and needles in her right foot, but now she only experiences pins and needles in her right buttock.
While Dr du Plessis reports the Applicant as having pain in her right hip at the time of her examination in September 2015, the question is whether that pain relates to the hip injury in relation to which the Applicant now claims. In that regard Dr Hayes in his report of 15 June 2015 (R1.2, T33) referred to the Applicant having “…pain in the right low back and buttock” (page 7 of the report, R1.2, T33 at 102) and at page 8 of that report (R1.2, T33 at 103) he notes:
The only new condition which the patient has developed is that of symptoms of right Trochanteric Bursitis. This has only developed in the past 6-12 months and is not related to her employment.
Dr Hayes did not give evidence, however, Dr Slinger was cross-examined on that statement in Dr Hayes’ report and his evidence was (Transcript, p 71):
MS DOWSETT: Would you agree that he is identifying two aspects of pain – back pain and pain in the hip region?
DR SLINGER: He is, yes.
MS DOWSETT: And then, over on to page 8, in his answer, 4(a), he refers to the trochanteric bursitis as a new condition?
DR SLINGER: Yes.
MS DOWSETT: And he says that it is not related to her employment?
DR SLINGER: That’s so for cancer. Nothing to do with her hip.
MS DOWSETT: The trochanteric bursitis is something that she is reporting pain - - -?
DR SLINGER: It’s not the hip, as I told you. It’s immediately below the hip. It’s a piece of bone that sticks out from the hip. It’s not the hip joint, as such.
MS DOWSETT: So, any pain that she is describing there is not what you are referring to when you are talking about hip pain?
DR SLINGER: Correct. Dr Hayes says in that report, that it is a new symptom.
The Applicant was also examined by orthopaedic spinal surgeon Dr Eamonn McCloskey on 28 October 2015. His report dated 28 October 2015 (R1.2, T47). Amongst other things, Dr McCloskey’s report noted that:
She presents today predominantly with pain in the back, right hand side lower down and there is also right trochanteric pain. The symptoms have been present for about 10 months.
…
She has also got pain over the lateral aspect of the hip which can radiate into the groin.
…
She had tenderness over the right trochanteric region.
…
…Her trochanteric pain is quite significant and I have suggested that we get that investigated with an MRI scan.
Dr McCloskey did not give evidence.
Dr Slinger was asked questions about Dr McCloskey’s report as follows (Transcript, p 72):
MS DOWSETT: And so again, he is referring to the back pain, right-hand side, lower down and the trochanteric pain and you say that is not the hip?
DR SLINGER: Yes.
MS DOWSETT: But, you would agree – sorry, do you agree that pain in that region is quite different and separate to any pain in the back?
DR SLINGER: Yes.
MS DOWSETT: And on the second page of his report, he describes this pain as, “Quite significant”?
DR SLINGER: Yes.
MS DOWSETT: Do I take it that that was not a history that you took?
DR SLINGER: I didn’t take any history of pain of the trochanteric region. You have read my report, which is two years after – 18 months after Mr McCloskey. I didn’t take any history of pain in the trochanteric region, no.
The MRI scan suggested by Dr McCloskey was undertaken. By report dated 1 December 2015 Dr Lim reported the results of the MRI to Dr Dayaratna (R1.2, T52) as follows:
MRI scan of the right hip shows evidence of an extensively torn acetabular labrum, which I don (sic) think she is symptomatic from. There is no hip arthritis. There is evidence of trochanteric bursitis with mild insertional tendonopathy of the gluteus minimus.
Again, Dr Slinger was asked to comment on Dr Lim’s assessment and his evidence was (Transcript, p 73):
MS DOWSETT: I take it that you disagree with that opinion?
DR SLINGER: No, I don’t agree with that. I don’t agree with what you have just said. She has got an extensively torn acetabular labrum. Whether she is symptomatic from it, I don’t know. I think it’s entirely possible and what I said to you earlier on was, I couldn’t say that that acetabular labrum that was torn, was torn by the accident or injury. That may well be where her symptoms are coming from, as a direct result of the accident we’re talking about.
MS DOWSETT: Yes, and what I am suggesting to you is that Dr Lim has reported he does not think it is the source of the symptoms?
DR SLINGER: Well, if that’s what he says, that’s what he says and he may well be correct.
MS DOWSETT: And by that, do you mean that it is just not possible to say what is the cause of her symptoms?
DR SLINGER: Precisely. Exactly, putting your money on it, 100 per cent, she has got symptoms that could relate to the back with degeneration. She has got symptoms which could relate to the hip, with torn acetabular labrum and she is tender in the trochanteric bursa, which is commonly a place for trochanteric bursitis.
The clinical notes from the Applicant’s general medical practice (R1.5, ST1) note the Applicant as having reported back pain from her attendance on 5 January 2015 onwards. Those notes also record her reporting buttock pain at the time of her visits on 29 January 2015 (R1.5, ST1 at 49) and 5 February 2015 (R1.5, ST1 at 47) but no reference to hip pain until 16 November 2015.
The Applicant was seen by Dr Lim on 14 March 2016. In a report of that date (R1.2, T72), Dr Lim reported that:
I reviewed Bronwynne today. Her trochanteric pain still seems to be better for having had the recent steroid injection. She tells me that the nature of the pain has changed and she is now getting a different type of pain in her right hip, which travels down to the right lateral thigh and right lateral leg towards the lateral malleolus. I am concerned that this pain may be arising from her lumbar spine.
Dr McCloskey also noted the right leg pain as a “new…development” in his report dated 30 March 2016 (R1.2, T77) (together with the result of the bursal injection). He recommended repeat MRI scan to see if there had been any development in the Applicant’s lumbar spine pathology. Dr McCloskey then referred the Applicant to Dr Kent, anaesthesia and pain medicine specialist.
In a report dated 23 June 2016 (R1.2, T88) Dr Kent noted that he had performed lumbar facet joint injections, and advised:
I note that she previously had the trochanteric bursa injected and it gave her good relief from hip related symptom and it may be that her pain emminates (sic) from two discreet (sic) sources, the lumbar facets but also gluteal tendons and the labrum of the hip joint where she’s got tears; the latter probably is not amenable to long term solutions …
Dr Anthony Smith, general orthopaedic specialist, examined the Applicant on 18 July 2016. In his report dated 29 July 2016 (R1.2, T91) Dr Smith recorded that the Applicant reported pain in the low back, more on the right side, in the trochanteric area and in the groin (R1.2, T91 at 269). Dr Smith recorded the results of his examination of Ms Lock’s hips (R1.2, T91 at 270), and concluded that she had bilateral hip arthritis, which he said was a “constitutional malady” unrelated to the fall on 30 December 2014. In his supplementary report dated 31 October 2017 (R3) Dr Smith stated that the proposed PRP injections were unlikely to have any effect on the Applicant’s hip arthritis.
A further right hip MRI was performed on 10 December 2016 (R1.2, T100 at 342), which showed a slight worsening of the pathology in the gluteus minimus, but was otherwise unchanged from 11 November 2015. In cross-examination, Dr Slinger stated that there was nothing in this MRI that explained the change in symptoms reported by the Applicant. However, he noted that it was possible to have changes in symptoms without MRI changes.
In a report dated 2 March 2017 (R1.2, T116 at 379), Dr Taylor recorded a history of the Applicant having “persistent lower lumbar spine and right hip pain” following the fall on 30 December 2014. He noted that the right hip produced “significant discomfort”. In contrast to Dr Smith’s examination nine months earlier, Dr Taylor’s examination of the Applicant’s hips revealed a normal range of movement. This result was consistent with Dr Tran’s examination a week later (R1.5, ST6 at 98). Dr Taylor agreed that the discrepancy between his assessment of range of movement and Dr Smith’s was not normal, noting that hip stiffness would not be expected to fluctuate.
In his evidence-in-chief (Transcript p 103), Dr Taylor said that it was important to differentiate between hip and back pain in order to be clear as to the diagnosis of the cause of the pain. He also stated in medical terms a gluteus minimus tendon injury would not be described as either a back or hip injury, and would be referred to specifically as a gluteus minimus tendon injury.
Dr Taylor recommended that the Applicant undergo PRP injection into the gluteus minimus tendon. Dr Taylor said that the injection was for pain relief and improved functioning, and that there was no evidence that it would lead to tendon repair.
The Applicant was examined by Dr Phillip Meyerkort, consultant occupational physician, on 15 November 2017. In his report dated 24 November 2017 (R4), Dr Meyerkort notes on page 4 that:
Ms Lock stated that several days after the initial incident from December 2014 she developed discomfort affecting her right hip. She stated that during this time she had pain in her back and it was unclear to her whether her pain was secondary to her back condition.
and on page 5 that:
…with her day-to-day activities she will develop a burning sensation in her back that will radiate to her right hip.
Dr Meyerkort diagnosed right iliotibial band syndrome. He stated that the right hip condition was unlikely to resolve given the presence of extensive tearing of the acetabular labrum, and that surgery may be required.
The Applicant’s evidence
In her 12 January 2018 substituted witness statement (A1), the Applicant says:
33. I didn’t have immediate pain in my back, but my shoulder and right arm were painful.
34. Over the next 2 days, I also noticed pain in my low back, and I became aware that that was a widening problem over about 6 months after the accident.
35. I had pain in that region for a long time and I didn’t realise it was specifically my hip until Dr Hayes mentioned I should get it checked when I saw him on 3 June 2015.
36. All I know is that I was suffering pain there and I would point to the area of my hip, back, buttock and shoulder all the time when I was asked where the pain was occurring.
In her earlier witness statement of 14 July 2017 (R6), the Applicant says:
23. I didn’t have immediate pain in my back, but my shoulder and right arm was (sic) painful.
…
35. When I’m sitting I sometimes experience a burning in my back, from the centre of my back to the side, and into my hip, but it could also be the pain from my hip causing pain in my back.
36. Standing up can cause pain that travels across my back and into my side and sometimes it goes down my leg.
…
38. I have always experienced pain in my right hip and buttock as well, but the immediate shoulder problem, and the back pain have overshadowed that.
39. In a report from Dr Hayes on 3 June 2015, he notes that I identified pain in the right side of my lower back, and in my right buttock.
…
41. It was noted in a report from Dr Du Plessis on 2 September 2015 that the pain was radiating to my right hip and buttock, but I didn’t know that it was going to end up getting bad and needing treatment.
42. I ended up putting in the claim for the right hip and buttock injuries on 4 January 2017.
The issues

It is apparent on all of the evidence that the Applicant suffers pain in her right hip. That appears not to be disputed by the Respondent (paragraph 95 of the Respondent’s closing submissions). The Tribunal accepts that to be the case.
The first issue for determination, however, is whether the pain and other symptoms that the Applicant suffers in her right hip are the result of an injury as that term is defined in s 5A of the SRC Act. The second issue, if the first is resolved in the Applicant’s favour, is whether the proposed treatment for which compensation under s 16 of the SRC Act, namely, ultrasound guided PRP injections of the gluteus minimus tendon, is reasonable in the circumstances.
In considering whether the proposed treatment is reasonable in the circumstances, the Tribunal will necessarily need to determine whether the proposed treatment is a treatment for the condition caused by the compensable injury. Put another way, even if the Tribunal finds that the Applicant did suffer an injury for the purposes of s 16 of the SRC Act and secondly that the Applicant suffers from the effects of that injury, for the purposes of application 2017/3211, the Tribunal will have to be satisfied that that the proposed treatment is of that injury.
Consideration
As is often the case in these sorts of applications, the medical evidence in this matter was divided. When it was put to him in cross-examination that his opinion on when the rotator cuff injury was sustained was “just speculation”, Dr Smith eloquently responded (Transcript p 125):
MR BRUNS: But you can’t say whether it did or not, that’s just speculation on your part that it might have predated the fall, isn’t it?
DR SMITH: I would like to choose the words educated guess, or, you know, it’s an educated opinion. It’s an opinion. No opinion is a certainty.
It is in that context that the Tribunal must make a decision. The first decision is whether the hip symptoms suffered by the Applicant were the result of an injury as that term is defined in s 5A of the SRC Act. The Applicant primarily relies on the opinions of Dr Taylor and Dr Slinger to support the claim that her hip symptoms were the result of the fall at work on 30 December 2014. Both Dr Taylor and Dr Slinger agreed that it was relevant in determining that issue to look at the history of the reporting of the symptoms and that the sooner after the event symptoms were reported, the more likely it is that the event caused an injury giving rise to the symptoms.
The history of symptomology in the hip emerging from the medical reports, and even the Applicant’s evidence, as set out in [107]-[137] does not support that hypothesis. In particular what the evidence shows is that:
(a)for the period of about 5-6 months after the fall the Applicant relevantly suffered from lumbar spine pain which, at times, radiated into her right buttock region;
(b)around June 2015 the Applicant developed symptoms around her right trochanteric region which were unrelated to the fall on 30 December 2014. That trochanteric pain was treated with positive results;
(c)MRI scans revealed that there was a low grade tear in the gluteus minimus and an extensive tear of the acetabular labrum; and
(d)in or about March 2016, some 15 months after the fall, the nature of the pain that she was suffering in her right hip changed.
The MRI scans of the right hip show identifiable changes from a normal physiological state in the Applicant’s right gluteus minimus tendon and right acetabular labrum. Based on the medical evidence, and in particular the history of reporting of symptomology of the right hip, the Tribunal is not satisfied on the balance of probabilities that the identified physiological changes from the normal are attributable to the accident on 30 December 2014. That of course is not to say that insofar as the Applicant may suffer pain in her right hip that that pain cannot be the result of the work accident in that that pain may be a further manifestation of or radiate from the accepted lumbar sprain. That, however, is a different issue to those raised in these applications which proceed on the basis of the claimed hip injury being a distinct injury from the accepted lumbar sprain injury.
The issue for determination in application 2017/3211, namely whether the proposed treatment is reasonable in the circumstances, is determined by the finding that the symptoms or injury sought to be treated were not attributable to the accident of 30 December 2014. However, even if that were not the case, the Tribunal is not satisfied on the balance or probabilities that that the treatment proposed by Dr Taylor, to whom Dr Slinger deferred in this regard (Transcript pp 78 and 79), being an injection to repair the tear in the tendon, or at least to relieve symptoms arising from that pathology, is a treatment of an injury to which s 14 of the SRC Act would attach liability to the Respondent. In particular the Tribunal is not satisfied that the “partial tear of the right gluteus minimus tendon” identified in Dr Taylor’s report of 2 March 2017 (R1.2, T116) for which the ultrasound guided PRP injection is sought is the cause of the right hip symptoms or that it is an “injury...[which]…results in…incapacity for work, or impairment” as is required by s 14(1) of the SRC Act (see definition of “impairment” in s 4 of SRC Act and discussion of that term at [4.17] of Sutherland P and Ballard JO, Annotated Safety, Rehabilitation and Compensation Act 1988 (11^th ed, The Federation Press and Soft Law Community Projects, 2018)).
For the reasons set out above the Tribunal affirms:
(i)the decision under review in application 2017/1827; and
(ii)the decision under review in application 2017/3211.
Application 2017/3194 – Accepted wrist injury
This application relates to the decision made on 3 May 2017 (R1.3, T111) which affirmed a determination by a delegate dated 6 March 2017 (R1.3, T105) that the Respondent was not liable under s 16 of the SRC Act to pay compensation to the Applicant for the proposed surgery, which is:
(a)right wrist arthroscopic surgery;
(b)right arthroscopic excision of a radiovolar ganglion, small dorsal scapholunate ganglion +/- excision intraosseous ganglia in scaphoid and lunate; and
(c)right ulnar shortening.
Background
On 24 June 2014 the Applicant claimed compensation in respect of an injury to her right wrist (R1.3, T11). On 19 September 2014 the Respondent made a determination under s 14 of the SRC Act (R1.3, T20) accepting liability to pay compensation in respect of “ulnar carpal impaction – right” and “ganglion – right”.
On 27 September 2016 the Respondent gave notice of an intention to determine that the Applicant had no present entitlement to compensation under the SRC Act in respect of “sprains and strains of carpal (joint) (right) and ganglion (right)” (R1.3, T87). The foreshadowed determination was made on 25 October 2016 (R1.3, T90). By letter dated 3 November 2016 (R1.3, T92) the Applicant, through her lawyers, requested reconsideration of that determination. On 1 December 2016 (R1.3, T93) the Respondent varied the decision dated 25 October 2016 and determined that the Respondent continued to be liable to pay compensation under s 16 and s 19 of the SRC Act in respect of “right interosseous cyst in the scaphoid and lunate” but not for “ulnar carpal impaction”.
The Tribunal notes that the Respondent’s letters of 27 September 2016 (R1.3, T87) and 25 October 2016 (R1.2, T90) and the Applicant’s lawyer’s letter of 3 November 2016 (R1.3, T92) refer to the “condition” (presumably the accepted condition) as being “sprains and strains of carpel (joint)(right) and ganglion (right)”. That description is not of the injury for which liability was accepted by the Respondent on 19 September 2014 which was as described in [148] above, “ulnar carpal impaction – right” and “ganglion – right”.
The Respondent’s letter of 1 December 2016, notwithstanding that it apparently relates to the letters referred to in [149], advises that:
The [Respondent’s] determination of no present entitlement to compensation under sections 16 and 19 of the SRC Act for ulnar carpel impaction remains unchanged.
Further, the Respondent’s letter of 1 December 2016 (R1.3, T93) states that it is an independent review of the:
…determination dated 28 November 2016, which found Mrs Lock had no present entitlement to compensation under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).
The Tribunal assumes that the reference to 28 November 2016 is an error and the Respondent’s letter of 1 December 2016 is meant to be a review of the determination dated 25 October 2016.
The Respondent in paragraph 72 of its SFIC appears to characterise this 1 December 2016 letter as being a variation to the injury for which the Respondent accepts liability, presumably under s 62(1) of the SRC Act, although that is not identified.
Whether the letter of 1 December 2016 was a valid reconsideration of a determination for the purposes of s 62(1)(a) of the SRC Act or even a reconsideration following a request for a reconsideration of a determination for the purposes of s 62(2) and (4) of the SRC Act, is largely academic as that is not the “decision” which is sought to be reviewed. The reviewable decision is the Respondent’s reconsideration of 3 May 2017 (R1.3, T111) of the Respondent’s determination of 6 March 2017 (R1.3, T105) which had been requested by the Applicant’s lawyers by letter dated 29 March 2017 (R1.3, T106).
The issues
It is, in the Tribunal’s view, important to understand the background to the making of the reviewable decision contained in the letter 3 May 2017 in order to identify the correct issues for determination by the Tribunal.
The Respondent in its closing submissions (paragraph 36) identified the issue for determination to be:
…the Tribunal is required to determine whether the proposed right wrist surgery is medical treatment obtained in relation to Ms Lock’s accepted wrist injury and, if so, whether it is reasonable in the circumstances.
In its SFIC (paragraph 6) the Respondent identified the issue for determination as follows:
6. …the issue for the Tribunal to determine is whether the respondent is liable under s 16 of the SRC Act to pay for surgery to the applicant’s wrist. This will require consideration of;
6.1 whether the proposed surgery is in relation to her accepted wrist injury; and
6.2 if it is, whether the proposed surgery is treatment that is reasonable for the applicant to obtain in the circumstances
In paragraph 11 of her submissions in reply, the Applicant identifies the issue as follows:
The applicant agrees that the Tribunal should determine whether the proposed surgery is ‘in relation to the injury’ (see para 39 and s 16 of the Act).
The reference to “para 39” at paragraph 11 of the Applicant’s submissions in reply is, presumably, a reference to paragraph 39 of the Respondent’s closing submissions (see [162] below).
None of these statements of the issues is particularly helpful, particularly in light of the shifting view of the Respondent as to what “the injury” is and the Applicant’s failure to describe “the injury”. As set out above, the Respondent initially accepted liability for an injury which it described as “ulnar carpal impaction – right” and “ganglion – right” (see [148]). In correspondence to the various doctors and to the Applicant, including its letters to the Applicant of 27 September 2016 (R1.3, T87) and 25 October 2016 (R1.3, T90), the Respondent referred to the “Condition” as “sprains and strains of carpel (joint)(right) and ganglion (right)”. The Respondent claims that by its letter of 1 December 2016 it varied the wrist injury for which it accepted liability to “right interosseous cyst in the scaphoid lunate”.
In its closing submissions the Respondent describes the exercise to be undertaken by the Tribunal in the following way:
39.The variations in the accepted wrist injury reflected the medical evidence considered, and accepted, by Comcare. Those variations are not the subject of an application for review. They demonstrate the evolving nature of decision making under the SRC Act, as described by Conti J in Hannaford. They are relevant to the Tribunal as background information only. The Tribunal is required to make its own assessment of the evidence, and to determine whether the proposed right wrist surgery is medical treatment obtained in relation to the injury (however diagnosed) that Ms Lock first noticed on 13 January 2014, in respect of which compensation was claimed and liability to pay compensation was accepted.
In the end the Tribunal must determine whether the surgery for which the Applicant seeks compensation is “in relation to [an] injury” for the purposes of s 16 of the SRC Act irrespective of whether the Respondent may have previously accepted liability for an injury or how it may describe the injury for which it has accepted liability. This approach is consistent with the principles set out in Telstra Corporation Ltd v Hannaford [2016] FCAFC 87, per Heerey J at [8]-[11].
That in turn requires consideration of whether the condition for which treatment is sought is an “injury”, as that term is defined in s 5A of the SRC Act. If those considerations are determined in favour of the Applicant, the Tribunal must then consider whether the proposed treatment is reasonable in the circumstances.
The medical evidence
The proposed right wrist surgery is the recommendation of Dr Ecker, hand and wrist surgeon. He has provided a number of reports that are in evidence before the Tribunal (R1.3 T18, T23, T66, T71, T100 and A6).
In his report of 9 February 2017 (R1.3, T100 at 307) Dr Ecker described the proposed surgery as:
The ideal way to manage this is arthroscopic surgery to evaluate the carpus to determine whether or not there is an associated perilunate scapholunate instability pattern, removal of the ganglia, arthroscopic chondroplasty of the unstable cartilage on the ulnar quadrant of the radiocarpal surface of the lunate and ulnar shortening ostectomy. This would deal with the wrist pathology and the ulnar carpal impaction.
In his report dated 12 January 2018 (A6) Dr Ecker in more detail described the surgery that he recommended as follows:
3mm of bone will be removed from the ulnar and the ulnar will be internally fixed with a plate and screws. This will correct the ulnar positive variance and the supination deformity in the wrist associated with ulnar carpal impaction syndrome. At the same time the damaged cartilage on the radiocarpal surface of the lunate which is caused by the ulnar carpal impaction syndrome will be arthroscopically removed. Because of the associated perilunate tenderness and the unusual finding of the contiguous intraosseous ganglia in the scaphoid and lunate, the plan was to examine the radiocarpal joint and the midcarpal joint to determine if there was additional pathology in the wrist which was contributing to her symptoms. At the time of clinical examination Ms Lock exhibited not only ulnar carpal impaction symptoms, but perilunate tenderness. It is important to obtain all the information to make a reliable assessment. If there is additional pathology present in the wrist this will be discussed and explained with Ms Lock any further treatment required and this can be implemented once she has recovered from her shortening osteectomy which was designed to treat her mechanical ulnar sided wrist pain caused by her ulnar carpal impaction.
That report identifies two main purposes for the proposed surgery. The first is to treat the ulnar positive variance and the immediate effects of that condition and the second purpose is to determine whether there is additional pathology which contributed to the symptoms.
In cross-examination Dr Ecker (Transcript, pp 94-95) described the second purpose as follows:
DR ECKER: In my mind, the real issue is did her job cause her ulnocarpal impaction and her wrist pain? And the answer is, all I’ve got to go on is the history that she provides to me. She said she’s doing a lot of repetitive work, shifting 280 trays a day and is it possible that this has precipitated, yes. Okay? Has it contributed to it coming on early? Possibly, yes. But the other problem that I have that is really bothering me more than the ulnocarpal impaction syndrome is what else is happening in this woman’s wrists? And the only way I’m going to know is by putting a scope in and finding out.
It is not disputed that the Applicant has an ulnar variance, which Dr Ecker explained concerned the length of the ulnar compared with the radius which he confirmed was present in a significant portion of the population. Dr Ecker also explained that ulnar variance alone was not significant. In order to have ulnar carpal impaction (as he diagnosed in the Applicant) diagnostic factors such as pain on gripping and changes on imaging were required. Dr Ecker stated that the “impaction” occurred when using the hand/gripping. He agreed that it did not matter what was being gripped, the impact occurred as a consequence of the use of the hand.
Dr Ecker agreed that ulnar impaction did not refer pain or symptoms to the radial side of the wrist, stating if those symptoms were present then there was something else happening in the wrist. Pain and symptoms on the radial side were not consistent with ulnar carpal impaction. When referred to the observations of others who had examined Ms Lock, Dr Ecker stated that he did not know what they had found and all that he could say was that her presentation to him for four years had been consistent.
In relation to the link between the wrist symptoms experienced by the Applicant and her work, Dr Ecker’s evidence in cross-examination was (Transcript, pp 94-95):
MS DOWSETT: Yes, continue?
DR ECKER: In my mind, the real issue is did her job cause her ulnocarpal impaction and her wrist pain? And the answer is, all I’ve got to go on is the history that she provides to me. She said she’s doing a lot of repetitive work, shifting 280 trays a day and is it possible that this has precipitated, yes. Okay? Has it contributed to it coming on early? Possibly, yes. But the other problem that I have that is really bothering me more than the ulnocarpal impaction syndrome is what else is happening in this woman’s wrists? And the only way I’m going to know is by putting a scope in and finding out.
…
MS DOWSETT: Now, doctor - - -?
DR ECKER: That’s my - because I’ve actually thought about this quite - because you’ve asked me. There’s people that ask you for medico-legal reports. Has it contributed to the precipitation and the onset of her symptoms? Possibly. Has it not? I can’t say that. Is her history consistent? Did it develop while she was at work?---Yes. Is there an irregularity in her history? Yes. Initially, it was thousands, there was an elaboration but she came back and amended it and made an addendum to 280. That was several years after I first saw her. So from my point of view, is that there’s a temporal relationship between the onset of her symptoms, then that links it to her job. Is it possible that shifting 280 trays has precipitated ulnocarpal impaction? Yes. Is it impossible that it hasn’t contributed? No. Is it the whole story? No. Is there something else happening here? Possibly. Are there other conflicting difficult parts to her case? Yes. A 50-year-old’s four-and-a-half years’ history, middle-age, absolutely. That’s my opinion.
In relation to the proposed surgery to treat the injury, whether that be the injury as described by the Respondent in accepting liability or more generally an injury for the purposes of s 16 of the SRC Act, irrespective of whether it comes within the description of the injury accepted by the Respondent, Dr Ecker’s evidence in cross-examination (Transcript p 99) was:
MS DOWSETT: Yes, I’m just trying to drop out as much legal jargon and make it as simple as possible. Doctor, are we correct to understand that the surgery you propose has two primary focus? One, is the shortening of the ulnar and two, is the exploration to see what else is going on in the wrist?
DR ECKER: Almost there. The purpose of this surgery is to alleviate her symptoms of ulnocarpal impaction and that’s one. And the second component is to get additional information that will help my resolve why she has other problems, or she’s having other symptoms in the wrist. Both of which, I believe, are related to trauma and both of which are related to her using her hands to lift 280 trays a day and both of them are mechanical in ideology [the Tribunal assumes that this should be “aetiology”]. They’re in my world, a disease is a different and this is a mechanical thing. This is due to overload stress, abnormal mechanics or whatever you want to call it. It’s an injury in my world.
MS DOWSETT: When you say, “mechanical and overload stress”, you’re speaking there about the repetitive use of the hand?
DR ECKER: Yes. I mean, in my opinion, ulnocarpal impaction is a stress fracture of the lunate with bruising and micro-fractures in the lunate and damage to the articular cartilage on the radiocarpal surface of lunate and that’s due to trauma beyond the ability of the body to heal. This is a mechanical, repetitive force thing that’s been superimposed on the wrist and resulted in an injury.

The Tribunal understands Dr Ecker’s evidence to be that while the medical reports refer to things such as ulnar carpal impaction as being the injury, or disease which may have been aggravated, the symptomology is actually caused by fractures to the carpal bones, such as the lunate, or other elements of the carpal structure or the articular cartilage between the ulnar and the lunate bone. Dr Ecker’s view is that that “mechanical” damage was, or could have been caused by the Applicant lifting the trays as described. Dr Ecker’s view is that that symptomology is relieved by the surgery to the ulnar as described in [167].
The Respondent notes at paragraph 71 of its SFIC that Dr Ecker considered that the Applicant’s wrist symptoms developed at work but that the Applicant’s employment was not responsible for her ulnar positive variance and that it was possible for the Applicant to develop ulnar carpal impaction irrespective of her job. It is noted that although the Respondent subsequently purported to change the description of the injury or condition for which it accepted liability, it had initially accepted liability for ulnar carpal impaction.
The surgery suggested by Dr Ecker is supported by Dr Slinger. In his report dated 8 November 2017 (A4 at page 5 of the report) Dr Slinger’s comment on the proposed surgery was:
I concur with the surgery recommended by Mr Ecker, emphasising that my knowledge and experience of Ms Lock’s condition is miniscule, as are the opinions of my other colleagues who have provided as opinion, including Dr Smith, Dr du Plessis and Dr Tran, as compared to the vast experience of Mr Ecker.
Dr Hayes, consultant rheumatologist, examined the Applicant on 3 June 2015 and by report dated 15 June 2015 (R1.3, T29) he opined that:
Her symptoms are not suggestive of ulnar-carpal impaction syndrome as suggested by Mr Ecker. This produces pain over the ulnar aspect of the wrist and the patient has no tenderness in this location. The MRI suggested possible ulnocarpal impaction however the patient has no clinical symptoms or signs of ulnocarpal impaction.
…
The symptoms in her right wrist are directly related to the employment or incident on 13 January 2014 with the Department of Agriculture.
(R1.3, T29 page 7 of the report)
In response to specific questions, Dr Hayes responded on pages 8 and 9 of his report as follows:
6. What is the prognosis for this condition?
The prognosis for her right wrist symptoms is unclear at this stage. She appears to have a chronic medical condition and may be helped by surgery.
…
8. In your medical opinion do you believe that moving approximately 120-200 trays per shift has created an onset of her symptoms related to bilateral ulnar compaction syndrome?
Her wrist pain is related to pathology in the scaphoid and scapho-lunate point and is not due to ulno-carpal impaction. In my opinion this has become symptomatic as a result of moving the trays.
(Original Emphasis)
Dr Smith, general orthopaedic specialist, examined the Applicant on 18 July 2016 and prepared a report dated 29 July 2016 (R1.3, T80) in which he, relevantly, stated as follows:
It has been proposed that she has an ulnar shortening operation and then an arthroscopic debridement of the lunate regarding the joint between the lunate and the radius. The arthroscopy of the wrist would enable evaluation of the rest of the wrist. No particular treatment is recommended for the left wrist (R1.3, T80 at 248-249).
…
…Most people with wrist arthritis do not have enough symptoms to warrant an arthrodesis of the wrist and she does not have enough symptoms now to warrant that particular operation (R1.3, T80 at 249-250).
…
Osteoarthritis of the wrist arising de novo is uncommon and it was not caused by the work accident of 13 January 2014 or October 2013 as it is most likely the first time she has had symptoms from her wrist arthritis on the right in particular (R1.3, T80 at 250).
…
There are no symptoms present now that are the result of any of the incidences occurring at work when she was employed by the Commonwealth, either in January or December 2014 (R1.3, T80 at 252).
…
…She may require some treatment in the future because of exacerbations to those underlying degenerative changes in either shoulder, either wrist, either hip or the low back or the neck from aggravations in the future, but it will not be your responsibility to pay for those treatments (R1.3, T80 at 253).
…
There is no surgery required for the cystic lesions in the lunate or ulna (R1.3, T80 at 253).
While Dr Smith was of the view that the Applicant’s condition, being, in his view, osteoarthritis, was not caused by the Applicant’s work, he agreed in cross-examination (Transcript p 124) that while degenerative changes may be present, they may be asymptomatic until triggered by an event. The following exchange occurred:
MR BRUNS: All right. But, for a trigger, but for the accident, that wouldn’t happen? They would still be symptom-free?
DR SMITH: Well, it may be that they’ve put off for a number of years, yes. But, I mean, if something didn’t happen, then their future changes. But it wouldn’t change the fact that the degenerative disease would be present and would get slowly worse with the passage of time. That it remains asymptomatic is certainly possible.
MR BRUNS: And we can’t say, now, when it would have come on, had the accident never happened?
DR SMITH: That’s correct. No one can predict that.
Dr Tran, rheumatologist, reported tenderness over the radial scaphoid, and “no tenderness of the ulnar region”. He was “sceptical whether the lunar abutment syndrome” was causing Ms Lock’s symptoms, noting “[c]linically her pain is over the radiocarpal joint”.
Dr Ecker’s response in evidence-in-chief to Dr Hayes’ and Dr Tran’s opinions (Transcript p 89) was that while everyone was entitled to an opinion, he disagreed with their opinions.
He also responded in examination-in-chief to Dr Smith’s report of 29 July 2016 (R1.3, T80) as follows (Transcript, p 89):
MR BRUNS: There’s also a report from a general orthopaedic surgeon, Dr Smith at T80, saying that the main problem, or the only problem he thinks is operating is osteoarthritis and your procedure would not fix that?
DR ECKER: Inaccurate. Inaccurate in terms of the diagnosis, more importantly. I think when you treat anybody, the most important thing is the diagnosis before you undertake any form of treatment, whether it be splinting, therapy, whatever. This woman has symptomatic ulnocarpal impaction, fact, based on the history, the clinical examination and the investigations. What is in question is whether or not there’s something else contributing to her wrist pain and the sign of relatively large ganglia assists in the lunate and the triquetrum, mainly in that she’s got a carpal instability, which to me, is entirely consistent with lifting hundreds of insect trays and working casually for six years as a biosecurity officer. So, you know, everybody is entitled to their opinion, but I disagree with all of that.
Consideration
The medical evidence given in these sorts of matters, invariably by highly qualified and thorough practitioners and specialists, as was the case in this matter, can differ significantly in their diagnoses and recommendations as to treatment. It is also the case that inevitably, and perhaps reassuringly, different specialist practitioners will look at diagnosis and treatment from different perspectives, from the perspective of their particular specialty. In the end what the Tribunal has is a body of differing medical opinions from which it must make findings and distil the correct and preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 78 per Smithers J). Based on all of the medical evidence the Tribunal is satisfied on the balance of probabilities that Dr Ecker’s opinion is to be preferred. Dr Ecker has examined the Applicant’s wrist injury on numerous occasions over a period of more than three years and has provided thorough and consistent opinions throughout this time. The other doctors have not had the same level of involvement with the Applicant’s condition. The Tribunal also notes that the Respondent had accepted Dr Ecker’s diagnosis of “bilateral ulnar carpal impaction worse on the right” and “painful right scapholunate joint…” (R1.3, T18 at 47) in accepting liability in September 2014 (R1.3, T20). The Tribunal does not dismiss the opinions of Dr Hayes, Dr Smith and Dr Tran but, in these circumstances prefers the evidence of Dr Ecker and his expertise as a hand, wrist and elbow surgeon.
The Tribunal accepts that the Applicant’s wrist condition, ulnar carpal impaction, is an injury for the purposes of s 5A of the SRC Act as being an injury arising out of or in the course of the Applicant’s employment, in particular caused by the Applicant moving trays. In support of this finding the Tribunal notes that on 19 September 2014 the Respondent accepted the condition of ulnar carpal impaction as being compensable under s 14 of the SRC Act. The Respondent has continued to accept that the Applicant has a present entitlement to compensation under s 16 and s 19 of the SRC Act for the “right interosseous cyst in the scaphoid and lunate”.
There was evidence that the Applicant may suffer from osteoarthritis in her wrists and that a degenerative condition may be the cause or significantly contribute to her symptoms. The Tribunal does not dismiss the possibility that the Applicant may have osteoarthritis in her wrists, however, the Tribunal is satisfied that she also has the effects of the previously accepted condition of ulnar carpal impaction and that, on the balance of medical opinion, that that was caused by the Applicant’s employment with the Department.
While the medical term “ulnar carpal impaction” is not to those of us who are not medically trained particularly descriptive of what we would normally consider to be an injury, Dr Ecker’s description in [173] of the mechanics of the condition and how it causes symptoms, is useful in understanding the condition as an injury.
The fact that in the course of the surgery proposed by Dr Ecker there might also be examination for additional pathology that may be contributing to the symptoms does not detract from the primary purpose of the surgery to relieve the symptoms of the ulnar carpal impaction. Even if a purpose of the surgery were to investigate what else might be causing the pain and symptoms on the radial side, which some of the medical evidence said would not be caused by ulnar carpal impaction, that would not, in the Tribunal’s view, mean that the surgery was not a medical treatment obtained in relation to the work injury for the purposes of s 16 of the SRC Act. Ultrasounds, X-rays and MRIs are investigative in nature, however, are rightly, as they were by the Respondent in this case, accepted as being a part of the treatment for the work injury.
Is the proposed surgery reasonable in the circumstances?
Again, the medical evidence is divided between those who are of the opinion that the proposed surgery would provide relief from the symptoms suffered by the Applicant and those who think that it would not. Dr Hayes is of the view that the wrist condition suffered by the Applicant is not ulnar carpal impaction related (answer 7 in his report dated 15 June 2015 (R1.3, T29 at 98) so, presumably, is of the opinion that the proposed surgery would not be effective. Dr Hayes does, however, note in answer 6 on page 8 of his report (T3.1, T29 at 97) that:
The prognosis for her right wrist symptoms is unclear at this stage. She appears to have a chronic medical condition and may be helped by surgery.
Dr Smith similarly expressed the view in his report of 29 July 2016 (R1.3, T80 at 253) that he did not consider surgery recommended by Dr Ecker to be required although it is noted that in answering that question Dr Smith stated only that: “There is no surgery required for the cystic lesions in the lunate or the ulna”. He made no comment, despite the question covering it, as to whether the ulnar carpal impaction surgery recommended by Dr Ecker was required. The Tribunal also notes that the adjectival test for the purposes of s 16 of the SRC Act is not whether treatment is “required”, whatever that may mean, but rather whether it is reasonable in the circumstances.
What is the test for reasonable in the circumstances?
In the decision of Re Jorgensen and Commonwealth of Australia (1990) 23 ALD 321 at [325] Gray J said “[t]he idea of reasonableness involves objectivity”. See also Re Tiranti-Valenti v Comcare (1996) 45 ALD 478; Re Roberts and Military Rehabilitation and Compensation Commission (2011) 124 ALD 78 at [9] which agreed with and applied Gray J’s analysis. Relevantly, in Comcare v Holt [2007] FCA 405 the Federal Court found that “reasonableness” involves a cost/benefit analysis weighing the cost of the treatment against the therapeutic value of the proposed treatment (see also Comcare v Rope (2004) 135 FCR 443).
In Rope and Comcare [2018] AATA 42 at [45] and [46] Deputy President Humphries summarises the principles to be considered in determining whether treatment is reasonable. Relevantly, treatment is less likely to be considered reasonable where:
…
·its benefits are insubstantial and its cost is high;
·it is passive and promotes dependence on itself; and
·it is ongoing and indeterminate.
In his report dated 20 December 2014 (R1.3, T23 at 67) Dr Ecker advised that the likely cost of the ulna shortening osteectomy is $1375 (Item 48409 ulna shortening osteectomy with internal fixation). Dr Ecker further advised that the estimated surgical fee for arthroscopic surgery with removal of the ulnar carpal impaction chondral lesion is $1870 (Item 49224), the estimated cost for diagnostic (joint arthroscopy for diagnostic purposes) is $725 (Item 50100) and the estimated cost for arthroscopic surgery on a joint is $1615 (Item 50102). The Applicant would require a splint for 6 weeks post operation and would also require follow up therapy and X-rays. There would also be fees for the anaesthetic, the operating theatre, a fee for the plates and screws (required to internally fix the shortening osteectomy), and for the hospital bed. The cost of these procedures is likely to have gone up over the last four years. The cost of the proposed surgery is clearly not insignificant.
In considering whether proposed surgery is reasonable in the circumstances, it is obviously relevant to consider what the alternatives are to the proposed surgery. In this case the Respondent did not identify any alternatives for the treatment of the Applicant’s wrist injury. The effect of its case, and the medical evidence that it relied on, was simply that the proposed surgery was not reasonable. The Tribunal notes that Dr Hayes in his report of 15 June 2015 found that “the symptoms in [the Applicant’s] wrist are directly related to the employment or incident on 13 January 2014…” and that “they may be helped by surgery” (R1.3, T29). What that surgery is, is not identified. As noted earlier in [184] and having preferred the evidence of Dr Ecker the Tribunal finds that Dr Ecker’s proposed treatment of the Applicant’s right wrist condition is reasonable in the circumstances.
Based on the totality of the evidence the Tribunal finds that;
(a)the right wrist condition from which the Applicant suffers is an injury;
(b)the proposed surgery is treatment of the injury for the purpose of s 16 of the SRC Act; and
(c)the proposed surgery is reasonable in the circumstances.
The Tribunal accordingly sets aside the reviewable decision in this application 2017/3194 and in substitution for that decision makes the determination that the Respondent is liable under s 16 of the SRC Act for the cost of the proposed surgery being:
(a)right wrist arthroscopic surgery;
(b)right arthroscopic excision of a radiovolar ganglion, small dorsal scapholunate ganglion +/- excision intraosseous ganglia in scaphoid and lunate; and
(c)right ulnar shortening.
DECSIONS
Application 2016/7037
The Tribunal finds that it does not have jurisdiction to review the decision.
Application 2017/1827
The Tribunal affirms the decision under review.
Application 2017/3211
The Tribunal affirms the decision under review.
Application 2017/3194
The Tribunal:
(a)sets aside the reviewable decision in this application 2017/3194 and in substitution for that decision makes the determination that the Respondent is liable under s 16 of the SRC Act for the cost of the proposed surgery being:
(i)right wrist arthroscopic surgery;
(ii)right arthroscopic excision of a radiovolar ganglion, small dorsal scapholunate ganglion +/- excision intraosseous ganglia in scaphoid and lunate; and
(iii)right ulnar shortening.
(b)directs that the Respondent pay the costs of this application 2017/3194 incurred by the Applicant.

I certify that the preceding 200 (two hundred) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

....[sgd]....................................................................
Associate
Dated: 23 July 2018

Dates of hearing: 27-28 March 2018

Counsel for the Applicant: Mr Bruns

Solicitors for the Applicant: JDK Legal Services

Counsel for the Respondent: Ms Dowsett

Solicitors for the Respondent: Australian Government Solicitor

Dates of hearing:	27-28 March 2018
Counsel for the Applicant:	Mr Bruns
Solicitors for the Applicant:	JDK Legal Services
Counsel for the Respondent:	Ms Dowsett
Solicitors for the Respondent:	Australian Government Solicitor