Lynette Prater and Comcare
[2014] AATA 7
[2014] AATA 7
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5168
Re
Lynette Prater
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal RM Creyke, Senior Member
Date 9 January 2014 Place Canberra The decision under review is set aside and in substitution the Tribunal directs that Comcare is liable to pay compensation to the applicant in accordance with section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
...................[sgn].............................
RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – Commonwealth Employees – shoulder injury – injury claimed to be sustained when lifting bags - whether injury arose out of or in the course of employment – whether notification given ‘as soon as practicable’.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) sections 14 and 53
SECONDARY MATERIAL
Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010)
REASONS FOR DECISION
RM Creyke, Senior Member
9 January 2014
Ms Lynette Prater, born 1962, had a left shoulder injury with a claimed date of injury of 20 November 2011 for which liability for compensation was denied on 18 September 2012. That decision was affirmed on 13 November 2012.
On 15 November 2012, Ms Prater applied for review by the Tribunal. The matter was heard in Canberra on 18 September 2013, and on 11 November 2013.
Background
At the relevant time, Ms Prater, who is 152cm tall and right-handed, was employed by COMCAR on a casual basis as a Commonwealth driver and had been in that position since May 2001. COMCAR is a body administered by the Department of Finance (agency). Generally she worked when the Australian Parliament was sitting. Ms Prater estimated she would average about 24 hours of COMCAR work a week. The figures supplied by COMCAR indicate that in the period August 2011 until July 2012 her COMCAR work was for about 20 hours a week.
The car she drove was a Holden Statesman, and was an automatic. Her job involved driving members of parliament and other dignitaries, often to and from the airport, but also within Canberra. Trolleys were available at some places to assist with luggage. Generally she had to carry the person’s bags and deposit them in the boot of the car and unload them at the end of the journey.
Ms Prater had a second job as a receptionist at a residential care facility. Her duties were administrative, including typing which she did with her right hand only, as she said she was not sufficiently co-ordinated to type two–handed. She commenced working there in May 2010. Her working hours would be 5 hours daily from 9.30am in one week, and six hours daily from 9.30am in the alternate week. Ms Prater’s evidence was that she had no injuries arising out of that work.
Ms Prater conceded that she had formerly suffered carpal tunnel syndrome in the right wrist with a deemed date of injury in 1989. In 2005-2006 she had suffered right leg and right hip pain which has continued. She suffered a left ankle injury at work in November 2006, exacerbated by a fall in April 2007. Ms Prater was initially off work for three weeks in April 2007. She was also involved in a motor vehicle accident while at work on 23 July 2007, when her car was hit on the driver’s side. She said she only suffered bruising and a soft tissue injury to her right elbow on that occasion. She was certified unfit for work from 23 July 2008 for three days following that injury.
On 9 November 2011 Ms Prater injured her left wrist while moving house, but said she had used liniment and her wrist recovered within two to three days. The injury did not prevent her working at the residential care facility. She was not working for COMCAR between 23 October 2011 and 20 November 2011.
The injury in this application was claimed to have occurred on 20 November 2011. At about 10.50pm Ms Prater was scheduled to pick up a senior Minister from Fairbairn Air Force Base, Canberra and to transport him to Parliament House. According to Ms Prater, the Minister had with him six to eight small metal cases about 400mm wide and 300mm high. They were very heavy. The COMCAR was parked some 50 metres away from the pickup point and up a short incline. Ms Prater said after carrying the first case, which she found heavy, she moved the remainder using a trolley. She then loaded the cases into the boot of the car. Her evidence was that during the loading and unloading most of the weight was being borne by her left hand and arm. She unloaded the boxes onto a trolley when she reached Parliament House.
Ms Prater said when carrying the metal cases she noticed a twinge which moved from her left hand to the underside of the left wrist and the underside of the left elbow up towards the shoulder. Ms Prater did not lodge a formal notification of the injury until 14 August 2012. However, she completed a driver’s report on 20 November 2011 when she finished work that day reporting an injury to her left wrist. The report stated: ‘Lifting [Minister’s] 6 bags in & out of boot I seem to have caused some injury to my (L) wrist. He did not offer any assistance with lifting the bags’. Ms Prater said she did not lodge an incident report on that date as she said she thought the injury was just muscular and would resolve over time. At the same time, she also said it ‘felt significant enough and painful enough’ to put in a driver’s report.
When asked why she had not earlier made a workers’ compensation claim, Ms Prater said ‘I couldn’t afford to stop working; if I don’t work I don’t get paid; if I don’t get paid I can’t pay my rent’. She also said that another reason for not putting in a claim was:
Because I didn’t want to go down a compensation claim after the stress of the last time of a claim. I just don't like to make waves, I don’t like to cause trouble, for the want of a better word, I just hoped that my arm would get better and I wouldn’t have to be going through what I’m going through today.
Following lodgement of her workers’ compensation claim, Ms Prater was told she was unable to work until her injury was better. Ms Prater agreed in evidence that she had made previous workers’ compensation claims for carpal tunnel syndrome in 1990 and for plantar fasciitis in 2007.
Medical evidence
In the ‘Medical History’ element of the application to be a COMCAR driver, Ms Prater had answered ‘No’ to questions concerning previous trouble/pain with ‘shoulders’, ‘elbows/wrists/hand’ and ‘ankles/feet’. She acknowledged these answers were incorrect. The medical practitioner conducting the medical examination did not detect any abnormalities in these regions and pronounced her ‘fit’ for the position. Ms Prater certified that on 15 August 2008 she been trained in correct lifting and carrying techniques and procedures in relation to clients’ baggage.
Dr Geoffrey Stubbs
Dr Geoffrey Stubbs, orthopaedic surgeon, reported to Ms Prater’s general practitioner, Dr Mohan Mirpuri on 2 July 2012, that Ms Prater had osteoarthritis of the left shoulder, confirmed on CT scan. An ultrasound showed subacromial subdeltoid bursitis, which as he said ‘is just the common point of lots of different shoulder problems’. However, he hypothesised ‘an impingement syndrome secondary to subacromial spurring’, possibly associated with ‘some kind of supraspinatus damage, possibly even a high grade partial thickness tear which would benefit from surgical intervention’.
At the hearing, Dr Stubbs said he saw Ms Prater once only on 2 July 2012 for about fifteen minutes. He said he had no memory of any suggestion on that occasion that the tear in Ms Prater’s shoulder was work-caused. He said following the report of the arthrogram on 26 July 2012 he conceded there was a partial tear and that this can follow injury, and could be the source of Ms Prater’s pain, but he could not say whether the events of 20 November 2011 were causal. He denied that the minor wrist injury Ms Prater said occurred on 9 November 2011 could have caused the tear and the radiating pain in July 2012. Nor did he recall any discussion of pain radiating from the wrist to the arm and shoulder. He said that if Ms Prater had arthritis that would be another source of pain in the shoulder.
He conceded in cross-examination that repetitive activities can cause a shoulder disorder of the kind suffered by Ms Prater, and this was a frequent cause of injury in workers’ compensation claims. He also said it was common for right-handed people to have repetitive injuries in the left shoulder. He said it was possible but not probable that repetitive activity was the cause of Ms Prater’s shoulder problems. That repetitive activity may have been repetitive arm lifting such as the repeated lifting of the heavy boxes in November 2011, and this was the most likely cause in the absence of any other source of the pain. In his view, Ms Prater was young to have osteoarthritis and hence wear and tear was the more likely cause.
Dr Mohan Mirpuri
Dr Mirpuri, in a report dated 13 September 2012, said Ms Prater had first consulted him about a left shoulder problem on 13 February 2012. He said initially she ‘presented with signs and symptoms suggestive of a bursitis’, that is, an inflammation, in her left shoulder. When acute, ‘bursitis is usually the result of injury’.[1] On 25 July 2012, she had an ‘MR arthrogram of her LT shoulder which revealed a subacromial bursitis with a partial tear of her supraspinatus tendon’. He said Ms Prater had described an injury to her left shoulder after lifting some heavy bags in November 2011. As he said, ‘She developed some acute pain but didn’t take much notice of this. It was not until February that it started to really worry her, and that’s when she initially saw me’. He pointed out ‘She does not play any other sports or engage in other activities that could have caused this injury’. As a consequence, as he said ‘It is more likely that the incident in November has caused her shoulder pain’.
[1] Dr Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010) 99.
Dr Mirpuri prescribed a strong analgesic on 1 June 2012. His clinical notes for 26 July 2012 following the arthrogram noted the partial tear identified in Ms Prater’s left supraspinatus tendon. His clinical notes for 1 August 2012 said ‘pain occurred in nov when lifting some heavy bags at work – does a lot of lifting at comcars – 15-20 hrs with comcar per wk. occ 1 x per wk would involve some lifting. No other sports, no other known injuries’. He issued a Comcare medical certificate following that consultation.
Dr Ann Harvey
Dr Harvey, radiologist, reported on a plain x-ray taken on 20 February 2012 which had revealed bursitis of the left shoulder, a small subacromial spur, and ‘a mild subarticular sclerosis….at the left sternoclavicular joint’. The report noted ‘The reason for this is unclear. ? Healing fracture’. A subsequent ultrasound report by Dr Harvey reported on a guided steroid injection on 20 February 2012. The report noted ‘There is a history of a recent fall’. Ms Prater had another guided injection on 17 May 2012 as the first injection had produced no improvement. The report noted ‘Incidental hypertrophic change involving the left sternoclavicular joint. ? ? Old injury?’
Arthrogram report
The report of an arthrogram of Ms Prater’s left shoulder on 25 July 2012 revealed ‘a partial thickness articular surface tear of SST [skin and soft tissue] is detected’. Under ‘History’ the report listed ‘? Labral tear’. The diagnosis was ‘an undersurface partial thickness articular surface tear of the SST, with fraying of the tendon edge and contrast extending into the tendon. No labral ligamentous injury identified’. Labral tears, being soft issue injuries, are generally not visible on plain x-ray.[2]
[2] Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010) 727.
Evidence at hearing
At the hearing Ms Prater confirmed that she had an operation for carpal tunnel syndrome ‘post 1985’ but this was in the right wrist. She confirmed that she had not previously made a claim for injury to her left shoulder or left wrist and that she had continuing problems with her lower back and right hip. Ms Prater did concede, as Dr Mirpuri’s clinical notes indicated, that she had injured her left wrist moving furniture on 9 November 2011. Ms Prater was moving house at the time, a process that took a day. Ms Prater said she felt the pain in ‘the centre of my wrist’. On medical advice she used a wrist guard she obtained from a chemist. That was her only medical treatment. She said otherwise she rubbed liniment into her wrist and massaged it and the pain cleared in a couple of days.
Ms Prater said the pain she experienced lifting the Minister’s bags was in a different part of her left wrist and arm and she felt the muscles flex in her upper arm and shoulder region and her whole arm felt quite tender. Ms Prater said when she returned the car to the depot she lodged a driver’s report because the pain in her arm ‘felt significant enough and painful enough to write that I had hurt my arm – wrist’. The note referred to her left wrist she said ‘because that’s where the primary – it seemed to be eventuated from even though it was radiating up my arm, the pain.’ When she returned home she took an analgesic for the pain.
Ms Prater worked the next two days, despite her whole arm being quite sore but said she did not go to the doctor since she was quite busy. On 21 November she worked for the residential care centre in the morning and for COMCAR from 7.30 until midnight. On 22 November 2011 she worked for COMCAR from 8.00pm until 11.00pm and on the 24 November from 3.00pm until 9.45pm. The 24 November 2011 was the last sitting day of Parliament for 2011.
She said she thought the injury in November 2011 was simply a pulled muscle and it would get better with rest, massage and liniment. Her wrist got better and her arm did get slightly better over the period until February 2012 when she was not driving for COMCAR. She gave evidence that she was not involved in exercise or any other activities during the break that could have affected her arm and shoulder.
Ms Prater did not drive again for COMCAR until 5 February 2012. In the meantime, she did continue to work for the residential care facility, but said her work there generally did not aggravate her left arm or shoulder. However, she admitted in evidence that after 20 November 2011 she noticed that stretching her arm to answer the telephone could lead to her experiencing some discomfort in the shoulder.
When she recommenced work for COMCAR on 5 February 2012 she said she noticed the pain increasing through the day due to her continually driving and ‘pulling the handbrake on and off’ as she moved up the queue of COMCAR vehicles waiting to pick up a passenger. As she said the pulling on of the handbrake and its release ‘was getting continually harder’. She said while driving the holding her arms out on the steering wheel also seemed to put pressure on her shoulder and arm. Ms Prater said in that first week of work for COMCAR in 2012 she worked every day from 5th to 8th February and again on 12 February 2012. Because of the pain when she got home she would take an analgesic, rubbed her shoulder with liniment and went to bed.
On Monday 13 February 2012, Ms Prater consulted Dr Mirpuri about the increasing pain in her left arm and shoulder and he referred her for a guided cortisone injection. Ms Prater had a plain x-ray and the guided cortisone injection on 20 February 2012. The cortisone did not improve her pain levels. A second cortisone injection occurred on 17 May 2012. There was no mention in the report of a tear in the shoulder region, although Dr Stubbs, in his report of 20 July 2012, had hypothesised that Ms Prater may have ‘a high grade partial thickness tear’.
Ms Prater saw Dr Mirpuri again on 1 August 2012 following receipt on 26 July 2012 of the results of the arthrogram. Following that report Dr Mirpuri diagnosed a torn supraspinatus tendon. He completed a workers’ compensation medical certificate that day. Ms Prater then put in an incident report on 8 August 2012 and lodged a workers’ compensation claim on 20 August 2012. Ms Prater said she found she could no longer work at COMCAR in July 2012 since she was deemed unfit for duty, and her last day of work was 20 July 2012. Her evidence was that once she had put in a workers’ compensation claim she was told she could no longer work until her shoulder condition had resolved.
In evidence Ms Prater denied the possibility that her shoulder tear was due to ‘a recent fall’, noted in the report of the ultrasound of 20 February 2012. She said at the hearing that she had ‘not had a fall at all’ and certainly not in the last ‘six, 12, 18 months’. Ms Prater conceded in cross-examination that she had not truthfully answered questions in the annual COMCAR medical assessment form dated 8 October 2009. She had written ‘No’ in response to a question as to whether she had had more than two weeks off work for illness in the last two years, and whether she had had pain in her elbows, wrists and hands, hips, knees, ankles and feet. However, the examining doctor had noted ‘right carpal tunnel surgery around 20 years ago’, so she had declared that surgery. She conceded that it was not until she made her statement for the hearing in March 2013 that she first mentioned pain in her left arm. She also accepted that she had not connected the pain in her left shoulder with work until July 2012 following receipt of information from the arthrogram.
Legislation
The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act). Section 14 of the Act provides that ‘Comcare is liable to pay compensation … in respect of an injury suffered by an employee if the injury results in … incapacity for work, or impairment’. Comcare have also raised the issue whether compensation is denied because Ms Prater did not provide Comcare with a ‘notice in writing of the injury … as soon as practicable’.[3]
[3] Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) s 53.
Issues
The issues identified were:
·Whether Ms Prater’s left shoulder injury arose out of or in the course of her employment (Act section 5A(1));
·Whether Comcare is liable to pay compensation to Ms Prater for her injury (Act section 14);
·Whether Comcare’s liability is negated because Ms Prater did not notify Comcare of her injury ‘as soon as practicable’ (Act section 53).
Consideration
Whether Ms Prater’s left shoulder injury arose out of or in the course of her employment (Act section 5A(1))
The Comcare decision was that Ms Prater suffered a tear to the left supraspinatus tendon. This diagnosis was not made in the first instance. Dr Mirpuri’s initial medical opinion in February 2012 was that Ms Prater had a bursitis or inflammation of the shoulder joint. This diagnosis followed the results of a plain x-ray on 20 February 2012 and a guided cortisone injection that day. It was not until the arthrogram conducted on 26 July 2012 that a partial tear in the supraspinatus tendon was identified, a diagnosis then accepted by Ms Prater, Dr Stubbs and Dr Mirpuri. The Tribunal accepts this diagnosis and finds that Ms Prater’s pain was due to a partial tear in the supraspinatus tendon in her shoulder.
The issue is what caused that partial tear. Ms Prater claims that her injury occurred on the evening of 20 November 2011 when she was lifting what she claimed were multiple heavy boxes for a senior Minister when she transported him from Fairbairn Airport to Parliament House, Canberra. She said she recalled experiencing a twinge in her wrist on the occasion. Comcare alleges that Ms Prater did not sustain a shoulder injury while working for the agency on 20 November 2011, or in the manner alleged, or at all.
There is no question that Ms Prater was working for COMCAR on 20 November 2011. Her shift was from 3.30pm until midnight. Nor is there any question that Ms Prater’s duty statement for her COMCAR role listed as a ‘core requirement’, ‘Lifting bags including into, and out of boot of vehicles’.
There is a statement in the Medical Assessment form completed by each COMCAR driver annually, dated 6 September 2011, that: ‘The examinee is deemed unfit for driving duties if restrictions are imposed that limit them to lifting items less than 23 kg’. An earlier version of the form, dated 8 October 2009, stated ‘The examinee is deemed unfit if they are unable to lift to a weight of a maximum of 32 kilograms per bag’. The 2011 Form also notes ‘As a guide current airline baggage restrictions are: 23 kg economy domestic; 30 kg business domestic for checked baggage’.
Ms Prater is below average height. However, she was required, as a core component of her work, to lift in and out of the boot of the COMCAR vehicle bags weighing up to 32 kg. In both 2009 and 2011 Ms Prater was assessed as ‘Fully fit’ following her annual medical assessment which indicates she had been medically assessed as capable of doing so. She had also been trained in the correct method for lifting bags in and out of a boot.
On the occasion in question, however, she said she found the Minister’s bags to be ‘heavy’. She said she could not estimate the weight of the boxes but ‘I couldn’t lift them one-handed; they had to be lifted with two hands and even then it was a struggle’. The evidence of a witness who had, on occasions, driven the same Minister, said that when the Minister first arrived in Canberra he commonly had multiple heavy bags. The Minister was a senior Minister and was likely to have many documents and papers to read. On 20 November 2011, Ms Prater said he had between six and eight heavy bags. Having carried the first of the bags and found it heavy, she said she obtained a trolley to transport the remainder to the bags. She then had to lift the bags into the boot. She said her car was parked in a queue of COMCAR vehicles and hers was about 50 metres from the pick-up point. Having driven the Minister to Parliament House she then had to lift the bags out of the boot and place them on a trolley for the Minister to take to his suite.
The evidence was unclear as to the weight of each individual bag. One witness said he guessed they were each between 10 and 12 kg, but he emphasised he was only guessing. The Tribunal notes that as COMCAR drivers are used to lifting bags of up to 23 kg, and Ms Prater who was an experienced COMCAR driver, said she found these bags to be heavy, it is likely that these bags were heavier than the witness suggested. The Tribunal accepts that the weight of the bags was unusual and caused Ms Prater to seek out a trolley to assist with moving them from the pick-up to the COMCAR vehicle. However, she still had to load the bags on to the trolley and then into and out of the boot.
The question is whether lifting those bags could have caused Ms Prater’s shoulder injury. Ms Prater did not complain to Dr Mirpuri about pain in her shoulder until 13 February 2012. That is some two and a half months after the events of 20 November 2011. Ms Prater’s explanation for the delay was that although she had noted a twinge in her wrist in her driver’s report that day, she had not lodged an incident report as she thought she had just pulled a muscle and she hoped the injury would resolve over time. That hope was reasonable, assuming she associated the ‘twinge’ with the lifting of the bags, and given that Parliament would not meet again until February 2012, and Ms Prater would not be driving and lifting bags again until then.
However, the Tribunal needs to be satisfied that there were no other possible causes of the partial tear to the shoulder. Dr Mirpuri said she did not ‘play any other sports or engage in other activities’ that could have caused the injury. Ms Prater said the wrist injury she had sustained on 9 November 2011 when she was moving house had resolved within days. The injury was to the left wrist. Ms Prater had not further consultation with Dr Mirpuri about her wrist after 9 November 2011, despite his invitation reflected in his clinical notes following her visit on 9 November 2011, ‘To come back and see dr if not better’. Ms Prater had four visits to Dr Mirpuri up to 21 December 2011 about her lower right leg, and made no mention of pain in the left wrist or shoulder. She had no visits to Dr Mirpuri in January, and her first visit thereafter was on 13 February 2012, when she first complained about her left shoulder and he diagnosed a bursitis or inflammation of the region. So the Tribunal accepts that Ms Prater’s 9 November 2011 wrist injury did resolve quickly as she stated.
Ms Prater’s evidence is that her duties at the residential care facility were administrative and she did no lifting, nor was she involved in other repetitive activities that might affect her left arm and shoulder. Ms Prater said she is a right-handed typist only, and although she had an occasional pain when stretching for the telephone with her left hand when working at the residential care centre, the pain did not continue. Ms Prater’s car is an automatic but Ms Prater’s evidence was that driving to and from work at the residential care facility did not involve frequent use of the handbrake. As Ms Prater did not seek a consultation with Dr Mirpuri for her shoulder between the end of November and mid-February while she was working at the residential care facility, the Tribunal infers that any pain was not bothering her sufficiently to warrant a consultation.
Ms Prater’s second witness gave evidence that Ms Prater was ‘an Avon lady’ in her spare time. However, that activity only requires distribution of a booklet of the available products, and ordering for customers, not physically demanding activities. That witness also shared a love of horses with Ms Prater, but she confirmed that Ms Prater does not ride, just enjoyed ‘being around them’. There is no evidence that Ms Prater injured her shoulder from her activities around horses. That is corroborated by the absence of visits to Dr Mirpuri to complain of her shoulder until 13 February 2012.
Dr Mirpuri also said in evidence he had no knowledge of any ‘recent fall’ or ‘healing fracture?’ both raised as possible causes of her shoulder injury in the reports of the x-ray and the ultrasound respectively. He did suggest in evidence that he could not indicate how likely it was that lifting heavy bags could cause such a tear. However, no other explanation has been proffered for the initial injury to Ms Prater’s shoulder.
Ms Prater said, and the Tribunal accepts, that her shoulder had recovered to an extent, but not fully, between the events of 20 November 2011 and 5 February 2012. The medical evidence is that a partial tear in the supraspinatus region ‘usually responds to physiotherapy and immobilisation, but healing is slow’. The history of Ms Prater’s activities during the two and a half months till mid-February 2012 indicates a form of ‘immobilisation’ of her left arm and shoulder, at least, from regular activities which might affect her left shoulder. That does not eliminate the possibility that it was the lifting of the bags on 20 November 2011 which initially caused the supraspinatus tear to Ms Prater’s left wrist and shoulder.
After she resumed driving on 5 February 2012 the pain again became significant and Ms Prater said she needed to take an analgesic at the end of the working day following her resumption of driving because of the discomfort. The pain occurred when she continually used the handbrake as she progressed up the queue of slowly moving COMCAR vehicles to pick up the person she was to transport. This is a repetitive activity, requiring use of the left arm and shoulder muscles. This suggests that Ms Prater had a continuing injury to her left shoulder and the COMCAR driving, not other causes, exacerbated her shoulder problem. The Tribunal is satisfied that it was her renewed work as a COMCAR driver which was the cause of the recurrence of pain in her shoulder.
It is also significant that Ms Prater did not consult Dr Mirpuri until 13 February 2012 when she had been working for COMCAR for five days. She had driven on each of five days prior to the consultation, being on duty for 31 hours, 30 minutes in total, an average of 6 hours 16 minutes a day. Dr Mirpuri was sufficiently concerned about the pain in her left shoulder to organise an anti-inflammatory injection, and an x-ray indicating that in his clinical opinion that her shoulder injury needed further exploration.
Dr Mirpuri recommended a cortisone injection on 13 February 2012, and another on 11 May 2012 when it was apparent that the anti-inflammatory medication had not eased Ms Prater’s pain. He prescribed another non-steroidal anti-inflammatory drug on 1 March 2012, and on 11 May 2011. Dr Mirpuri recommended a strong analgesic for pain relief on 1 June 2012, and on 3 July 2012, he organised for Ms Prater to have an arthrogram to identify the cause of the continuing problem with her shoulder.
This history indicates that Dr Mirpuri’s initial diagnosis of an arthritic condition was not correct, and he was trying different treatments, and eliminating possible sources of her pain during this period. Dr Mirpuri did not identify work as a possible cause of the condition until 1 August 2012 and said in evidence to the Tribunal that this was an error on his part which had been rectified when he saw the results of the arthrogram.
The Tribunal finds that the lack of any obvious cause for her condition from Ms Prater’s administrative position at the residential care centre, her recording of a twinge in her left wrist on 20 November 2011 which she said radiated into her arm and shoulder following Ms Prater’s lifting of heavy bags on that occasion, the absence of any other identified causes, suggest that the initial partial tear of Ms Prater’s shoulder did arise out of and in the course of her employment.
That finding is supported by the exacerbation of Ms Prater’s condition on return to work with COMCAR in February 2012. The break between November and mid-February and the decrease in repetitive activities relying on her left arm and shoulder did not result in the disappearance of the discomfort in her arm and shoulder although it improved with rest. Ms Prater’s return to COMCAR work confirmed, however, that the condition had not resolved. Her condition was then exacerbated by the repetitive actions required by continual use of the handbrake using the left arm following the resumption of COMCAR driving in February 2012 leading to the aggravation of her shoulder pain from driving. At this point she consulted Dr Mirpuri about the problem. Accordingly the Tribunal finds that Ms Prater suffered an injury that resulted in incapacity for work, or impairment on 20 November 2011, an impairment which was exacerbated following resumption of COMCAR driving in February 2012.[4]
[4] Safety, Rehabilitation and Compensation Act 1988 (Cth)(Act) s 14.
Section 53 dismissal
Comcare contended that the claim should be dismissed under section 53 because Ms Prater did not report the injury ‘as soon as practicable’.[5] Ms Prater suffered the injury on 20 November 2011, but did not lodge an incident report until 8 August 2012, and did not make a workers’ compensation claim until 20 August 2012, some nine months later. Comcare has argued that the delay prejudiced its ability to identify the cause of Ms Prater’s injury.
[5] Safety, Rehabilitation and Compensation Act 1988 (Cth)(Act) s 53(1).
Ms Prater contended it took time for her to appreciate that the condition was not going to resolve, given the time off driving between the end of November 2011 and early February 2012 and her partial recovery during this period. In addition, once she experienced a resumption of her pain in early February 2012, she then had a number of conflicting and indeterminate suggestions as to the nature and cause of the condition during examinations in the period from February until July 2012. It was not until July 2012 that the condition was properly diagnosed, and she was advised that her shoulder was considered sufficiently serious for surgery to be required. At that point, she said she focused on the cause of the pain and realised that she should put in a claim.
The Tribunal accepts that untoward delay creates evidential difficulties for both parties. In this instance, however, the Tribunal notes that it was not July 2012 that an accurate diagnosis of the condition was made, that is, some eight months after the events of 20 November 2011. The delay in a proper diagnosis was due to a combination of factors. These include Ms Prater’s belief, partially justified, that the condition would resolve with rest, that it was not until February 2012 with the resumption of driving that it became apparent this had not occurred. Other factors were that no accurate diagnosis occurred until July 2012. This was due to the fact that a plain x-ray is not generally useful for picking up soft tissue injuries,[6] and it was not until Ms Prater had had further unsuccessful cortisone injections that the arthrogram on 25 July 2012 identified a partial tear in her supraspinatus tendon that the nature of the injury and the fact that it was not arthritic was known. In addition, the orthopaedic surgeon, Dr Stubbs, did not recommend that she would possibly need surgery until 20 July 2012. So until that time Ms Prater could not have appreciated that the condition was serious, and if related to work, Ms Prater needed to put in a compensation claim.
[6] Harvey Marcovitch (ed) Black’s Medical Dictionary (42nd edn, 2010) 727.
The Tribunal accepts that the delay in putting in a formal incident notification in August 2012 needs to be seen in light of these facts. In these circumstances, the delay in notification is not unreasonable. Once her condition was properly diagnosed, Ms Prater acted promptly, put in an incident report and made her compensation claim. The Tribunal accepts that there were reasons for the delay which were understandable and that accordingly the claim should not be barred under section 53 of the Act.
In conclusion the Tribunal finds that Comcare is liable for the injury to Ms Prater’s shoulder which arose out of and in the course of her employment. The decision under review is set aside and the Tribunal finds that in substitution that Comcare is liable under section 14 for Ms Prater’s injury which has led to her incapacity for work.
I certify that the preceding 53 (fifty three) paragraphs are a true copy of the reasons for the decision herein of ........................[sgn]...............................................
Associate
9 January 2014
Date(s) of hearing 18 September 2013 and 11 November 2013 Counsel for the Applicant Ian Bradfield Advocate for the Applicant Bill Redpath Solicitors for the Applicant Blumers Lawyers Counsel for the Respondent Deborah Dinnen Advocate for the Respondent Andrew Schofield Solicitors for the Respondent SRC Legal
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