MacRae and Australian Capital Territory (Compensation) [2023] AATA 1386 (24 May 2023)
ReviewNumber: 2019/3908, 2022/1309
Division:GENERAL DIVISION
File Numbers: 2019/3908 and 2022/1309
Re:Jade MacRae
APPLICANT
AndAustralian Capital Territory
RESPONDENT
DECISION
Tribunal:Senior Member C. J. Furnell
Date:24 May 2023
Place:Melbourne
Each decision the subject of review is set aside, and, in substitution, the Tribunal decides that the respondent is not presently liable to compensate the applicant in respect of the injury she suffered on 13 January 2018 and was not so presently liable at any time in the period after 13 June 2018 to the date of this decision.
........................[SGD]...............................................
Senior Member C. J. Furnell
Catchwords
COMPENSATION – Australian Capital Territory employee – psychiatric nurse – shoulder injury at work – denial of present liability to pay compensation – determination reconsidered of respondent’s own motion – respondent denied present liability for any time after a certain date – held that respondent cannot effectively decide it will never have future present liability to compensate applicant – whether effects of injury continuing – whether left shoulder superior labral tear encapsulated within accepted condition – burden of persuasion – where applicant had previously injured left shoulder –Tribunal does not conclude that left shoulder superior labral tear resulted from injury regarding which liability was accepted – found that effects of injury did not continue after a certain date and are not continuing at time of decision – held that respondent not liable in the period after certain date to the date of decision – decisions set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Beezley v Repatriation Commission (2015) 150 ALD 11
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Brice and Comcare (Compensation) [2018] AATA 3463
Bureau of Meteorology and Comcare and Anor [2015] AATA 267
Comcare v Lofts [2013] FCA 1197
Comcare v Power [2015] FCA 1502
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Fuad and Telstra Corp Ltd (2004) 39 AAR 496
Hurley and Australian Capital Territory [2019] AATA 2450
Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33
Kennedy v Comcare [2014] FCA 82
Lees v Comcare [1999] FCA 753
Liu and Comcare [2004] AATA 617
McDonald v Director-General of Social Security (1984) 1 FCR 354
Millar and Comcare (Compensation) [2019] AATA 4973
Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430
Poignand and Comcare (Compensation) [2019] AATA 2706
Priestly and Comcare (Compensation) [2019] AATA 5456
Shearing and Director-General of Social Security [1983] AATA 116
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60
REASONS FOR DECISION
Senior Member C. J. Furnell
24 May 2023
The applicant applied to the Tribunal for review of two decisions concerning her entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act).
She claimed to be entitled to compensation in respect of an injury compensable under the Act.
In response to that claim, on 1 April 2019, the respondent determined that it had a liability to compensate the applicant in respect of a “left shoulder soft tissue” injury she had suffered in January 2018. That liability was, however, determined to be only in relation to medical treatment costs incurred and incapacity for work suffered in respect of the relevant injury before 14 June 2018.[1]
[1] T16, p.41.
On 29 May 2019, the respondent decided to affirm that determination which it then characterised as one which involved a denial of a present liability to pay compensation “after 13 June 2018.”[2]
[2] T1.1, p.8.
On 18 November 2021, the respondent decided to vary its 1 April 2019 determination “and in its place” determined that the respondent had no present liability to pay compensation for medical treatment costs or for incapacity for work as at 14 June 2018.[3] I note that it did not vary that aspect of the 1 April 2019 determination which involved an acceptance by the respondent of a liability to compensate the applicant for an injury to her left shoulder.
[3] Exhibit R4, pp.6, 10, where the decision provides for a denial of a present liability as at 14 June 2018. That appears to be the gist of the decision albeit that elsewhere in the decision (Exhibit R4, p.9) it is suggested that it is adopting the 29 May 2018 decision that there is no liability to pay compensation “after 13 June 2018”.
The applicant has applied to the Tribunal for review of both the May 2019 and November 2021 decisions.
As is apparent from their terms, both those decisions involved a denial of a present liability to compensate the applicant with respect to the injury she suffered in January 2018.
The applicant submits that the respondent currently has such a present liability and that it had such a present liability in the period after 13 June 2018 to the hearing of these proceedings. The respondent denies this.
In light of these submissions and as elaborated upon later, the underlying question in issue in these proceedings is whether the effects of the applicant’s injury in January 2018 are, and were after 13 June 2018, continuing.
I am not satisfied that those effects are and were so continuing.
Given this, I have decided to set each decision the subject of review aside and, in substitution, have decided that the respondent is not presently liability to compensate the applicant with respect to the January 2018 injury and was not so presently liable at any time in the period after the 13 June 2018 to the date of this decision.
Before outlining my reasons for these decisions, mention should be made of the material that was before the Tribunal. It is on the basis of that material that the Tribunal is obliged to make “the correct or preferable decision”.[4]
[4] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).
Material before the Tribunal
The material before the Tribunal included evidence adduced at the hearing and certain documentary material lodged with the Tribunal prior to the hearing.
As for evidence adduced at the hearing, the Tribunal heard from the applicant, Mr Blackmore (an orthopaedic surgeon called by the applicant), Dr Haig (an orthopaedic surgeon called by the respondent) and Dr Burke (a consultant occupational physician called by the respondent).
As for documentary material lodged with the Tribunal, it included:[5]
[5] The applicant did not seek to have the Tribunal consider several documents that had been lodged with the Tribunal on her behalf including a witness statement seemingly made on or around 9 November 2021: see Transcript, pp.36-38.
(a)61 pages of documents lodged by the respondent under s 37 of the Administrative Appeals Tribunal Act 1975 in respect of proceeding 2019/3908 (being the “T” documents and marked as Exhibit R1);
(b)21 pages of documents supplementary to the T documents (being the “ST” documents and marked as Exhibit R2);
(c)167 pages of further documents supplementary to the T documents (being the “FST” documents and marked as Exhibit R3);
(d)11 pages of documents lodged by the respondent under s 37 of the Administrative Appeals Tribunal Act1975 in respect of proceeding 2022/1309 (Exhibit R4);
(e)The respondent’s Evidence bundle dated 17 December 2021 of 200 pages (being the “RTB” documents and marked as Exhibit R5);
(f)Briefing letter to Dr Burke of 13 December 2021 (Exhibit R6);
(g)Report of Dr Burke of 28 January 2022 (Exhibit R7);
(h)Report of Dr Burke 15 June 2022 (Exhibit R8);
(i)Report of Gal Mor, registered acupuncturist, of 25 January 2022 (Exhibit R9);
(j)Gal Mor’s clinical notes of 14 January 2019 (Exhibit R10);
(k)Excel spreadsheet of clinical hours undertaken 7 May 2009 to 15 July 2015 (Exhibit R11);
(l)Report of clinical hours so undertaken (Exhibit R12);
(m)Excel spreadsheet of clinical hours undertaken 16 July 2015 to 26 February 2020 (Exhibit R13);
(n)A statement made by the applicant on 9 November 2021 (the “November 2021 statement”) (Exhibit R14);
(o)Injurynet Online pre-employment medical advice letter dated 22 May 2019 (Exhibit R15) (the “SERCO pre-employment medical report”);
(p)Briefing letter to Mr Blackmore of 1 March 2022 (Exhibit A1); and
(q)Report of Mr Blackmore of 15 March 2022 (Exhibit A2).
The parties made pre-hearing submissions about that documentary material.[6] Somewhat unusually, at the hearing, the applicant effectively disclaimed the submissions that had been made on her behalf[7] and, instead, adopted, in large part, the R SFIC.[8]
[6] Reference is made to the respondent’s Statement of Issues, Facts and Contentions of 20 December 2021 (“R SFIC”) and to the applicant’s Statement of Facts, Issues and Contentions of 27 October 2021 (“A SFIC”).
[7] Transcript, p.41: the applicant’s counsel characterised the A SFIC as misleading.
[8] Ibid. Not adopted by the applicant were the contentions in the R SFIC and the suggestion that a question in issue was whether the applicant had suffered an injury in January 2018, a suggestion which the respondent disclaimed at the hearing.
Underlying question in issue
Inherent in the respondent’s determination of 1 April 2019 accepting that the applicant suffered a compensable injury in January 2018[9] is an acceptance by the respondent that it “is liable to pay compensation in accordance with [the] Act in respect of [the] injury … if the injury results in death, incapacity for work, or impairment.”[10]
[9] In the R SFIC at [2.2], it was said that the “…issue in this matter that is squarely before the Tribunal is whether, on 13 January 2018, the applicant suffered an injury arising out of, or in the course of, her employment with the Australian Capital Territory, under section 5A of the SRC Act.” Elsewhere in the R SFIC, however, the respondent appeared to accept that the applicant did then suffer an injury: see [4.1]. Consistently with its position in the decision under review, at the hearing, the respondent accepted that the applicant had suffered a compensable injury on 13 January 2018: Transcript, p.23.
[10] Act, s 14. While not evident on the material before me, it is understood by the Tribunal that at all relevant times a declaration under s 4A of the Act subsisted so that the respondent is a Commonwealth authority for the purposes of the Act and its employees are employees for the purposes of the Act.
Until that April 2019 determination is set aside,[11] the respondent’s liability to pay compensation in accordance with the Act subsists. This means, for example, that the respondent may at some time in the future become presently liable to pay compensation to the applicant in respect of the costs of medical treatment reasonably obtained by the applicant in relation to her compensable injury.[12]
[11] Noting, for instance, no own motion reconsideration decision by the respondent under s 62 of the Act purporting to set aside the respondent’s determination that the applicant had suffered a compensable injury.
[12] Assuming a claim is made for the relevant compensation.
Hence, while the April 2019 determination subsists, the respondent cannot effectively decide that it will never thereafter have a present liability to compensate the applicant in respect of her compensable injury. This is, however, what the respondent purported to do in its decision of 29 May 2019 when denying a present liability to compensate the applicant at any time after 13 June 2018. For this reason, that decision is set aside.
While the respondent cannot effectively decide that it will never in the future have a present liability to compensate the applicant while the April 2019 determination subsists, it can decide that it has no such present liability at the time of its decision or that it had no such present liability with respect to a past date or period.
In this regard, the liability to compensate the applicant which the respondent accepted by reason of its April 2019 determination did not, of itself, give rise to a present liability.[13] For the respondent to have a present liability to compensate the applicant at a particular time, it is necessary that it not only then be liable to compensate the applicant in accordance with the Act in respect of the relevant injury but also that it then be liable under a section or sections of the Act providing for the payment of a specific type of compensation.[14] For a liability of the latter type to subsist at any particular time, a claim for the relevant type of compensation must have been made[15] and (generally) the effects of the relevant injury must then be continuing.[16]
[13] Lees v Comcare [1999] FCA 753 at [34].
[14] Liu and Comcare [2004] AATA 617.
[15] Act, s 54. See Comcare v Lofts [2013] FCA 1197 at [69]. There it was decided that the Tribunal had no jurisdiction to make a decision with respect to a claim for medical expenses, being expenses which were not expressly or impliedly the subject of a claim resolved by the relevant reviewable decision. See also Bureau of Meteorology and Comcare and Anor [2015] AATA 267 at [59]-[69] and Poignand and Comcare (Compensation) [2019] AATA 2706 at [101].
[16] Hurley and Australian Capital Territory [2019] AATA 2450 at [80], where it is said, in essence, that for there to be a continuing entitlement to compensation under the Act with respect to an injury, there must be continuing incapacity or impairment as a result of the injury. See also Neuendorf and Australian Postal Corporation (Compensation) [2019] AATA 2430 at [131].
The applicant has claimed two types of compensation provided for in the Act in respect of the relevant injury. She has claimed incapacity for work compensation (for example, in relation to a period commencing on 29 January 2019[17]) and compensation in respect of certain medical treatment costs incurred in January and February 2019.[18]
[17] T19, p.59; FST14, p.13.
[18] FST55, pp.114-119.
On the material before me, however, there appears to have been no claim for any type of compensation in respect of the relevant injury as at, or with respect to any time before, 14 June 2018. In particular, the applicant has not claimed any incapacity for work compensation in respect of any time or period, or compensation in relation to the cost of medical treatment obtained, prior to 14 June 2018.[19] Absent such a claim and, hence, absent compensation being payable, there can be no present liability to deny. Hence, insofar as the November 2021 decision of the respondent was simply a denial of a present liability to compensate the applicant as at 14 June 2018, it was correct.
[19] Noting that in her claim for compensation in January 2019 the applicant claimed to have first sought medical treatment in respect of the injury on 22 January 2019 (T5, p.20) albeit the applicant said she had obtained physiotherapy, massage and acupuncture treatment while overseas in 2018: T7, p.27. As at February 2019. the applicant was said to have had had no time off work as a result of her injury (T5, p.22), with no incapacity for work claim having been made in 2018. In her oral evidence, the applicant first accepted that as at May 2019 she had had no time off work because of her injury but then said that she had, given that she was said to have been stood down from work in January 2019: Transcript, pp.99, 103.
Nevertheless, I have decided that the November 2021 decision should (like the May 2019 decision) be set aside.
The November 2021 decision was made consequent upon an own motion reconsideration of the April 2019 determination. It was one which the respondent had capacity to make under the Act[20] despite an application for review of the May 2019 decision having already been lodged with the Tribunal.[21] While expressed to be made “in place of” that determination, it did not provide for the making of an entirely substitute determination but, instead, varied only an aspect of the determination. It did not vary that aspect of the determination which involved an acceptance by the respondent of a liability to compensate the applicant for an injury to her left shoulder. Indeed, in the reasons for the decision, it was expressly noted that the decision did “not address the other matter that was contained in the reviewable decision of 29 May 2019, namely whether the ACT Government was correct to accept liability for the accepted injury.”
[20] Act, s 62(1).
[21] Administrative Appeals Tribunal Act 1975, s 26, a provision which imposes a general bar on decision-makers altering decisions after they have become the subject of review by the Tribunal but which is subject to express provisions to the contrary in the empowering enactment (such as is found in the Act, s 62(1)).
What was varied by the November 2021 decision was the aspect of the April 2019 determination which entailed identifying the date at which or period in which the respondent’s liability to compensate the applicant for the relevant left shoulder injury was not a present liability. In this regard, the decision was expressed in terms of the respondent having “no present liability to pay compensation for medical treatment and incapacity payments under sections 16 and 19 of the SRC Act in respect of the accepted injury as at the 14 June 2018.”
As just mentioned, insofar as the decision simply comprised a denial of a present liability as at 14 June 2018, it was correct. That being the case, however, does not preclude the Tribunal from setting it aside.
The Tribunal’s jurisdiction is not confined by the terms of the decision the subject of its review. Its jurisdiction extends to include matters that were before the decision-maker even if not expressly dealt with in the relevant decision.[22]
[22] Fuad and Telstra Corp Ltd (2004) 39 AAR 496; Irwin v Military Rehabilitation and Compensation Commission [2009] FCAFC 33 at [26]; Brice and Comcare (Compensation) [2018] AATA 3463 at [68], where it was said that matters before a decision maker are matters before the Tribunal whether or not “…they were squarely dealt with or dealt with in any way in the reconsideration decision (or the anterior determination)…”.
As mentioned earlier, claims for certain compensation had been made in early 2019. In particular, matters concerning the respondent’s liability to compensate the applicant for medical treatment costs and incapacity for work at a time and for periods after 14 June 2018 were before the respondent at the time of the November 2021 decision. That decision failed to address those matters insofar as it simply constituted a denial of a present liability to compensate as at 14 June 2018.
It might, however, be that the November 2021 decision, properly construed, did not simply constitute a denial of a present liability to compensate as at 14 June 2018. It would seem from the reasons for the decision that the respondent then intended to decide that the respondent “…was correct to determine that it was not liable to pay compensation for the accepted injury after 13 June 2018,” thereby aligning the April 2019 determination with the May 2019 reconsideration decision. Accordingly, it may be that the November 2021 decision suffers from the same defect as infects the May 2019 decision insofar as the November 2021 decision sought to vary the April determination so as to decide (like the May 2019 decision) that the respondent would not at any time after 13 June 2018 have a present liability to compensate the applicant in respect of her compensable injury.
Given their approach at the hearing of these proceedings, neither party would, I suspect, be troubled by the setting aside of both decisions the subject of review. The focus of their dispute lies in what should occur consequent upon the setting aside of those decisions.
The respondent urged the Tribunal to make a substitute decision. It was that the respondent did not have a present liability to compensate the applicant in respect of her accepted injury in the period 14 June 2018 to the hearing of these proceedings, and currently does not have such a liability. While accepting that the applicant had suffered an injury compensable under the Act in January 2018, the effects of her injury were said by the respondent not to have continued beyond 13 June 2018, and to be not currently continuing.[23]
[23] Transcript, p.162.
Given her rejection of the A SFIC, what the applicant sought only became apparent during the course of the hearing. Initially, it was that the Tribunal ought to decide to remit the matter to the respondent for reconsideration in accordance with a direction. The direction would require that the applicant be considered to have continued to suffer the effects of her injury in the period 14 June 2018 to the date of the Tribunal’s decision, and to be currently suffering those effects.[24] In closing, however, counsel for the applicant put that the Tribunal ought to make a substitute decision, which in addition to dealing with legal costs and disbursements, would be along the following lines:
(a)The applicant suffered incapacity and impairment as a result of an injury to her left shoulder, being the injury the subject of a claim for compensation dated 29 January 2019, which arose out of or in the course of her employment with the respondent on 13 January 2018 and which gives rise to an entitlement to compensation pursuant to section 14 of the Act and subject to the Act.
(b)From 13 January 2018 to the date of this decision the applicant was, and she presently is, incapacitated for work and undertaking medical treatment that was and is reasonable to obtain in the circumstances in respect of the injury which, subject to the Act, entitles her to compensation pursuant to the Act.[25]
[24] Transcript, p.111.
[25] Transcript, pp.156-159.
In seeking to have the Tribunal make this substitute decision, it was nevertheless acknowledged on the applicant’s behalf that a pre-condition to her success depended on a finding that the effects of the 13 January 2018 injury continued beyond June 2018 to the present date.[26]
[26] Transcript, p.161.
Hence, and as is apparent from the parties’ respective positions, the underlying question in issue is whether the applicant continued to suffer the effects of her January 2018 injury after 13 June 2018 and was currently suffering those effects.
As stated earlier, I am not satisfied that she did continue to suffer those effects after 13 June 2018 or that she is currently suffering those effects.
Procedural and Factual context
The applicant is around 50 years old. Since around May 2009,[27] she was an employee of the respondent on a casual basis, working mostly since 2014 in the Canberra Hospital’s mental health unit.
[27] T11, p.33.
On 9 October 2017, she attended a general practitioner. The applicant was then said to be suffering pain and restricted range of movement in her left shoulder. An ultrasound scan of the shoulder was, as a result, requested.[28] The doctor’s notes identify two prior incidents each of which involved what was characterised at the hearing of these proceedings as an insult to her left shoulder. There was a fall off a camper van around three months earlier and there was an incident in early October 2017 while the applicant was engaging in violence protection management training.[29] The applicant gave evidence to the effect that she was unable to recall the former incident.[30] The doctor’s notes record “Left shoulder injury 3 months ago-fell off camper and xray done-no fracture was getting better flared up/worse since started training for Violence protection management.”[31]
[28] RTB, p.75.
[29] At the hearing, on behalf of the applicant, the training was said to involve quite physical self-defence: Transcript, p.45. The applicant’s evidence was that it involved “take down” exercises and the use of techniques involving push and pull: Transcript, p.51.
[30] Transcript, pp.50, 62.
[31] RTB, p.76.
On 1 November 2017, the applicant again attended a general practitioner. The history she then provided included a “bilateral upper arm degloving injury” 10 years earlier while yachting and a fall on her left shoulder three months earlier.[32]
[32] RTB, p.43,
On 8 November 2017, an ultrasound was undertaken of the applicant’s shoulders. The report of the ultrasound noted that on the “…left side there is a 6mm calcification in the posterior supraspinatus tendon present and bony irregularity at the posterior supraspinatus tendon insertion on the right side. Calcific tendinosis noted left infraspinatus tendon…Left subacromial subdeltoid bursitis noted.” [33]
[33] RTB, p.121,
On 29 November 2017, the applicant underwent an ultrasound-guided injection in her left shoulder.[34]
[34] RTB, p.122,
On 18 December 2017, the applicant attended a general practitioner. At the time a “USS guided CSI” (which I take to be the ultrasound guided injection undertaken in late November) was said not to have helped. The plan then was to trial long-acting non-steroidal anti-inflammatories, with a review in a month “with a view to ref to Orthopod if not improving.”[35] I infer from this that there was an intention to seek the advice of an orthopaedic surgeon if the applicant’s left shoulder condition had not improved in a month.
[35] RTB, p.42,
On 19 December 2017, the applicant notified her employer of an incident that was then reported to have occurred on 4 December 2017 when, on the last of three days of violence protection management training, the applicant was said to have heard “a click and pain in left shoulder”.[36] At the hearing of these proceedings, it was accepted that the training referred to in this note was, in fact, undertaken in early October 2017, prior to the applicant’s attendance on her general practitioner on 9 October 2017.
[36] RTB, p.124,
On 4 January 2018, the applicant attended Ms Kaye, a physiotherapist, for an assessment.[37] The history then provided by the applicant included reference to an injury to her left shoulder on 1 November 2017 while undergoing training for work. She “felt a click in left shoulder at the time and then the next day started to feel pain in left shoulder. Had a further 2 days of training…A few weeks later went to GP as symptoms not improving…calcification diagnosed supraspinatus and infraspinatus tendons... Nil previous injuries to shoulders.” Ms Kaye’s impression was that the applicant was suffering from subacromial impingement with calcification of left shoulder supraspinatus and infraspinatus tendons.[38]
[37] FST11, pp.6, 8,
[38] FST11, p.7.
I digress to note inconsistencies in the material before the Tribunal concerning this training incident. As already mentioned, at the hearing the parties accepted that it had occurred in early October 2017, consistently with the general practitioner records of 9 October 2017. The applicant had, however, apparently suggested that it was undertaken on 1 November 2017 (according to the history taken by Ms Kaye and also the November 2021 statement) and on 4 December 2017 (according to the incident report of 19 December 2017). It is also suggested that the incident involving her shoulder occurred on the first day of the three days of training (according to the history taken by Ms Kaye), on the second day (according to the history taken by Dr Haig[39]) and on the third day of the three days of training (according to the 19 December 2017 incident report).
[39] RTB, p.178.
It is unnecessary for the Tribunal to seek to resolve these inconsistencies. The applicant disclaimed any reliance on the training incident at the hearing of these proceedings. This disclaimer was consistent with:
(a)the applicant’s general disclaimer of her A SFIC (in which a claim was made that she had injured her left shoulder while undertaking training for work in November 2017);
(b)the compensation claim later made by the applicant in respect of an incident on 13 January 2018 (which included a statement by the applicant that she had never experienced a symptom, injury or illness similar to that the subject of the claim and that she first noticed the injury and its symptoms on 14 January 2018); and
(c)the respondent’s determination of 1 April 2019 accepting a liability to compensate the applicant for a soft tissue injury sustained by her on 13 January 2018.[40]
[40] The disclaimer of any reliance on the 2017 training incident was, however, inconsistent with the November 2021 statement which, like the A SFIC, also included a claim that the applicant had injured her left shoulder in the course of that training.
On 5 January 2018, the applicant attended Ms Kaye for treatment.[41]
[41] FST11, p.8.
On 13 January 2018, the applicant suffered the injury for which the respondent accepted a liability to compensate. In the course of her work for the respondent as a nurse in the Canberra Hospital’s adult mental health unit, the applicant’s left arm was pulled by a patient. The applicant described the incident as one which involved the patient pulling her left arm, “yanking it so hard,” and her pulling her arm back.[42] It is worth noting in this context that the applicant was significantly smaller than the patient who accosted her.
[42] T5, p.23. See also T4, p.14.
The applicant notified the respondent of the incident several hours after it occurred, as reflected in an incident report of 15 January 2018.[43] In it, the injury said to have been suffered was characterised as minor and, indeed, the applicant was said to have denied being injured. It was also noted that the applicant was already seeing a physiotherapist “for previous injury”.
[43] T4, pp.14-16.
On 14 January 2018, the applicant presented at the Canberra Hospital emergency department complaining of lumbar back pain and was diagnosed with calculus of ureter.[44]
[44] ST13, p.12; RTB, p.131.
On 17 January 2018, the applicant again obtained treatment from Ms Kaye.[45] The latter’s clinical notes suggested that the applicant’s left shoulder had gradually improved until it was again injured “last week”. No further physiotherapy treatment was sought by the applicant before she was discharged from further treatment on 13 June 2018.[46]
[45] T16, p.43; FST11, p.8.
[46] FST11, p.6.
In February 2018,[47] the applicant left Australia and did not return[48] until October 2018[49] (or, possibly, late November 2018[50]). The applicant said she had made the decision to then stand down from her work with the respondent firstly, because she was experiencing “…limitations and pain from actions including opening the facility’s heavy doors…” and secondly, so as to “…continue treatment for the injury overseas where cost was more viable plus pursue a TEFSOL qualification…”.[51]
[47] Transcript, p.76.
[48] In cross examination, it was put to the applicant that she returned to Australia in March 2018 but then left for overseas again in May 2018: Transcript, p.76.
[49] See the applicant’s curriculum vitae at FST53, p.102. Note that the history provided by the applicant to Dr Wu on 19 February 2019 was that she was overseas in 2018 for only three months: see FST16, p.23. The history provided by the applicant to a physiotherapist on 4 March 2019, however, suggests she was teaching English in Thailand for a year: see FST24, p.33. At the hearing, it was said on the applicant’s behalf that she went overseas to do a course and was away for quite a few months: Transcript, p.27.
[50] Transcript p.77.
[51] Applicant’s November 2021 statement.
While overseas, the applicant apparently undertook a course in China and then taught English as a second language in China and Thailand.
On or around 1 December 2018, the applicant returned to her normal duties with the respondent.[52]
[52] FST24, p.33. Note, however, that in the November 2021 statement the applicant claimed to have returned to work in October 2019.
There is little before the Tribunal as to the effects on the applicant of the January 2018 injury in the period while she was outside Australia and before re-commencing work with the respondent in December 2018. The applicant’s evidence was to the effect that she experienced symptoms with respect to her left shoulder for which she sought low-cost treatment (such as massage).[53] I infer, however, that those effects were not significant. The applicant did not claim any incapacity for work compensation in respect of the period of around one year after she suffered the January 2018 injury and nor has she claimed compensation for the costs of any medical treatment obtained in that period. That the effects of her injury were not then significant is consistent with her subsequent characterisation of the injury in January 2019 as minor but getting worse[54] and with the history she apparently provided to a general practitioner in February 2019 to the effect that, while she had physiotherapy, massage and acupuncture when overseas, she had never seen a doctor in relation to the injury. Moreover, the applicant clearly felt that, whatever those effects were, they were not such as to prevent her returning to her normal duties with the respondent in December 2018.
[53] Transcript, pp.54-55.
[54] ST1, p.1; T8, p.28.
Whether or not the applicant continued to suffer the effects of her January 2018 injury while she was overseas in 2018, it was submitted on her behalf that when she returned to work in 2018 and into 2019, she became unable to perform her full normal duties because of the continuing effects of that injury[55] and was stood down from her work with the respondent on 7 January 2019.
[55] Transcript, pp.26-27.
On 29 January 2019, the applicant attended a general practitioner complaining of continuing pain in her left shoulder. She then provided a history to the effect that her left shoulder pain was precipitated by a patient grabbing and wrenching her arm (albeit that the general practitioner, Dr Gupta, noted that he had first seen the applicant for left shoulder pain “in late 2017”, that is, before the January 2018 incident).[56] The attendance was said to result in a medical certificate being created, as was the case also in relation to a further attendance on the general practitioner on 31 January 2019.[57]
[56] RTB, p.135.
[57] RTB, p.41.
On 29 January 2019, the applicant completed another report in relation to the incident of 13 January 2018.[58] In it, she said that the resultant injury generated pain on “certain movement, pulling, pushing. Hard to open heavy doors in the unit”. She described the injury as minor but “was getting worse”. The only treatment identified as having been undergone was physiotherapy albeit the applicant also stated that she had paid for massage and acupuncture overseas and that she had cortisone injections. In it, the applicant expressed concern that the patient who had grabbed her arm will again injure her; “…he can cause major serious injury and death to someone”.[59]
[58] ST1, pp.1-3; T8, pp.28-29.
[59] ST1, p.3.
On 29 January 2019, more than a year after the relevant incident, the applicant made a claim for compensation.[60] The condition in respect of which the claim was made was described in it as “left shoulder/back pain”. In the claim, the applicant said she had never experienced a similar symptom, injury or illness (albeit reference was made to the applicant having had a bilateral arm flap repair “…years ago sailing”) and that she first noticed the injury and its symptoms on 14 January 2018.
[60] T5, pp.17-23.
In the claim, the applicant said that she first sought medical treatment (consisting of physiotherapy) on 22 January 2019, albeit that the applicant also claimed to have seen doctors in China and Thailand while she was overseas. That claim was not, however, repeated at the hearing and nor was it reflected in the history taken by the general practitioner who provided the medical certificate accompanying the claim. Dr Arya’s clinical notes of 5 February 2019 outline a history which suggests that in the preceding year the applicant had physiotherapy, massage and acupuncture but “never saw a doctor.” This was approximately one week after she had seen another general practitioner. The applicant’s condition was said to have “never got better completely” with her range of motion “decreased in all the angles”.[61]
[61] T7, p.27.
I digress to note that in making the claim no reliance was placed by the applicant on the violence protection management training incident in early October 2017. Instead, consistently with the approach adopted on behalf of the applicant at the hearing of these proceedings, the incident that occurred on 13 January 2018 was the focus of the claim.[62] In this regard, the Tribunal has no jurisdiction to consider whether the respondent has a liability to pay compensation for a condition not reasonably encapsulated within the claim.[63] It is “…not open to an applicant to submit a claim on one basis and subsequently to attempt to recast the claim on a different (and advantageous) basis… and the tribunal’s jurisdiction on review is accordingly limited to the claim as presented and pursued”.[64]
[62] T5, p.23.
[63] Hurley and Australian Capital Territory (Compensation) [2019] AATA 2450 at [96]. What is reasonably encapsulated within a claim is assessed by the Tribunal: Kennedy v Comcare [2014] FCA 82 at [45].
[64] Priestly and Comcare (Compensation) [2019] AATA 5456 at [100].
In Dr Arya’s medical certificate of 5 February 2019, the condition suffered by the applicant was diagnosed as a left shoulder soft tissue injury[65] and was characterised as a new injury, rather than a continuing injury or aggravation of a pre-existing condition.[66] The applicant was said to be fit for modified duties.
[65] T6, p.24.
[66] T6, p.25.
The applicant applied to be compensated for incapacity for work in respect of the 29 January 2019 to 13 February 2019 period[67] and in respect of the 19 February 2019 to 19 March 2019 period.[68] In support of the claim in relation to that latter period, a further medical certificate was provided by a general practitioner, Dr Wu. Again, the applicant’s condition was described as a soft tissue injury.[69] In the certificate, the applicant was said to be unfit for work for a month. Clinical notes at the time suggest that the applicant complained of experiencing left shoulder pain for a year, albeit that her range of movement was then close to normal.[70]
[67] T19, p.59. The application could have been for a period ending on 18 February 2019 but the copy of the application before the Tribunal is unclear.
[68] T10, p.32.
[69] T9, p.30.
[70] FST16, p.23.
In addition to incapacity for work compensation, the applicant also appears to have claimed compensation in respect of the costs of certain medical treatment obtained in January and February 2019 (including acupuncture obtained on 14 January 2019).[71]
[71] FST55, pp.116-119. The applicant was invited on 4 June 2019 to submit claims in respect of incapacity for work and for the costs of medical treatment obtained in the period 13 January 2018 to 13 June 2018: see T17, p.49.
An ultrasound of the applicant’s left shoulder was conducted on 20 February 2019. The resultant report stated that “[m]ild changes of subacromial bursitis are present but no further abnormality is seen. Normal range of movement without impingement. No further abnormality is shown.”[72]
[72] FST58, p.156.
On 28 February 2019, the applicant was referred by Dr Otasowie, a general practitioner,[73] to a physiotherapist[74] as she was suffering from chronic neck pain radiating to her left arm.[75]
[73] T12, p.34; FST16, p.22.
[74] FST21, p.30.
[75] T13, p.35.
A MRI of the applicant’s cervical spine was undertaken on 28 February 2019 which identified minor disc disease, mild canal narrowing, no significant foraminal narrowing and no obvious neural impingement.[76]
[76] FST23, p.32.
In a workplace rehabilitation closure report of 1 March 2019,[77] Ms Wilson, an occupational therapist, reported that the applicant then had total incapacity for work. The applicant had apparently been “off work” since 7 February 2019 and had then moved from the ACT to Victoria. There were no suitable options then considered to be available to facilitate her return to the ACT and to her work for the respondent prior to acceptance of her compensation claim. While it was apparently considered that the applicant was not unable to do some work (such as computer-based work and work of an administrative nature) the respondent was reluctant to re-engage her until her compensation claim was resolved.[78] In the report, Ms Wilson stated that the applicant worked for 12 months following her injury, that in the year before submitting her compensation claim she had been able to “…manage at work on reduce hours” and had “…worked multiple jobs …until her shoulder gradually worsened to a point where she was not longer able to manage without support”.[79]
[77] T14, pp.36-38.
[78] ST4, p.6.
[79] T14, p.37.
The applicant attended a physiotherapist on 4, 7, 14 and 21 March 2019 complaining of constant pain,[80] a condition said to be aggravated by pulling heavy doors. The physiotherapist then opined that it was likely that the applicant suffered a SLAP lesion (a condition discussed further later) and or a rotator cuff tear.[81]
[80] FST24, pp.33-35.
[81] FST26, p.39.
On 7 March 2019, the applicant attended Dr Otasowie. Clinical notes suggest that a MRI scan had shown “multi level disc bulge and forminal narrowing”.[82]
[82] FST16, pp.21-22.
In a report of another occupational therapist, Ms Cowen, expressed to be dated 13 March 2019 (but more likely compiled in May 2019),[83] the applicant is said to have then been unfit for any employment, relying on Dr Wu’s certificate of 19 February 2019 (one in which the applicant was said to have suffered a soft tissue injury rendering her incapacitated for work for a month).
[83] ST5, pp.7-16. The Tribunal is unsure of the date of the report given references in it to matters that occurred after 13 March 2019, such as a case conference on 1 May 2019.
On 27 March 2019, the applicant attended a general practitioner and received a cortisone injection for left sided subacromial bursitis.[84]
[84] FST16, p.21; FST28, p.42.
On 29 March 2019, a doctor certified that the applicant was fit and not suffering a medical condition likely to be aggravated by or render her unfit for service at sea.[85] In this regard, I note that a couple of months later, the applicant was said to have advised a prospective employer that she had a recent contract on a cruise ship as a registered nurse, involving some customer service.[86]
[85] FST29, p.43.
[86] FST34, p.55.
In response to the applicant’s January 2019 compensation claim and as mentioned earlier, on 1 April 2019 the respondent determined to accept that the applicant had suffered an injury compensable under the Act in January 2018, being a left shoulder soft tissue injury. It also accepted a liability to pay compensation for medical treatment costs incurred before 14 June 2018 and for any incapacity for work suffered before then.[87]
[87] T16, p.41.
On 4 April 2019 (and again on 19 June 2019) the applicant received an ultrasound guided subacromial bursal injection.[88]
[88] FST58, p.156-157.
On 14 May 2019, the applicant applied (successfully[89]) for a job at a call centre involving clinical assessment, triage and provision of medical advice.[90] In a SERCO pre-employment medical report, the applicant was said to suffer from “left shoulder bursitis, Dec 2018. Ultrasound imaging to confirm. Cause not disclosed. No work related issue. Treated with physiotherapy. Has been asymptomatic since January 2019.”[91] The applicant also stated that she was unsure where her shoulder condition had occurred.
[89] FST38, p.68: offer of employment dated 11 June 2019.
[90] FST31, p.45; FST32, p.49.
[91] FST35, p.62.
On 16 May 2019, a MRI of the applicant’s left shoulder was undertaken. The report of the scan concluded that there was no labral tear. No rotator cuff pathology was seen but features of osteolysis of the lateral end of the clavicle were seen.[92]
[92] FST33, p.53.
On 17 May 2019, the applicant attended a general practitioner to obtain the MRI report. The report was said to be “essentially normal”. Nevertheless, a further subacromial injection was to be given as the applicant reported that the previous injection had helped “a bit”.[93]
[93] ST16, pp.20-21.
On 29 May 2019, the respondent affirmed its 1 April determination.[94] As already mentioned, in so affirming that determination, the decision-maker characterised it as a decision denying that the respondent had a present liability for medical expenses and incapacity payments after 13 June 2018.
[94] T1.1, pp.8-11.
On 30 June 2019, the applicant applied to the Tribunal for review of the 29 May decision. In the application she stated that:
(a)As a result of the January 2018 injury, she had suffered excruciating pain and an inability to work.
(b)She had been off work for one year and five months.
(c)She had gone overseas to stay with family and undertake tefsol courses.
(d)She had initially stood herself down due to pain management, issues with booking into the Canberra Hospital’s physiotherapist and her inability to perform a task mandatory for a registered nurse, being basic life support.
(e)After having returned to work in December 2018, she was advised by her manager on 7 January 2019 that she had to stand down again as her injury was being exacerbated by the tasks she had to perform while working, such as opening heavy doors.
On 24 October 2019, the applicant had an ultrasound guided injection of the left shoulder.[95]
[95] FST16, p.19.
On 19 December 2019, a general practitioner, Dr Te, certified that the applicant was unable to work from 19 December 2019 to 2 January 2020 “due to a medical condition”.[96] I note in this regard that on the material before me it is apparent that the applicant has difficulties with her neck and back, in addition to any problems with her left shoulder.[97]
[96] FST43, p.77.
[97] Reference is made, for example, to the acupuncturist’s report of 25 January 2022: Exhibit R9. Treatment provided to the applicant on 14 January 2019 would appear to have been primarily directed to relieving the applicant’s back pain. Gal Mor stated that the applicant was “…presenting with back pain that was caused by her lifting or moving patients at her working place as a nurse. Her pain was primarily in her lumber back and spine at L4-L5 area as well as on the Lt T3-T4 region. Pain started 7-8 years prior to our appointment. She reported that over the years pain has been coming and going. It was sharp at times and improved with movement. Pain was worse after sleep when she woke up in the morning. Pain also at times radiated down the back of her Lt leg…[the applicant] also presented with Bursitis and tendinitis in her Lt shoulder which started about 18 months prior to our meeting.”
Also on 19 December 2019, the applicant was told of a meeting to be held on the following day at which she was to be given an opportunity to respond as to why her call centre employer should consider not terminating her employment (the reasons for which were set out in a letter of 20 December 2019[98] and responded to by the applicant on 26 December 2019[99]).
[98] FST45, p.80.
[99] FST48, pp.88-90.
On 27 December 2019, the applicant’s employment by the call centre ended.[100] Her resignation was approved[101] after she had requested an opportunity to resign.
[100] FST49, p.91.
[101] FST51, p.95.
In March 2020, the applicant was seen by Mr Blackmore, an orthopaedic surgeon. She was said to have a full range of motion “but a painful arc”. A shoulder arthroscopy was recommended.[102]
[102] FST52, p.99.
On 29 October 2020, in connection with a claim to be compensated for costs relating to Mr Blackmore’s services, the applicant stated that she first injured her neck when undertaking a violence protection management course in 2017.
On 24 February 2021, the applicant underwent a “left shoulder arthroscopy subacromial decompression and bursectomy, AC joint excision and sub pec biceps tenodesis.”. The surgeon was Mr Blackmore. His operative diagnosis was “left shoulder subacromial impingement, AC joint arthritis, superior labral tear.”[103]
[103] RTB171.
As is apparent from Mr Blackmore’s operative diagnosis of 24 February 2021, there were then at least two aspects of the applicant’s left shoulder condition. The first comprised subacromial impingement and AC joint arthritis. According to Mr Blackmore, signs of this first aspect of the applicant’s shoulder condition were apparent from the results of the MRI undertaken prior to her February 2021 operative procedure (which I infer was a reference to the 16 May 2019 MRI mentioned earlier). It was said to have showed “features consistent with AC joint arthritis and impingement.”[104] What was not revealed by the MRI, however, was the second aspect of the applicant’s shoulder condition, being the superior labral tear (also known as a SLAP tear).
[104] FST52, p.99.
On 18 November 2021, the respondent purported to vary its 1 April 2019 determination consequent on its own motion reconsideration of the determination. As noted earlier, the “variation” entailed a decision to the effect that the respondent had “no present liability to pay compensation for medical treatment and incapacity payments under sections 16 and 19 of the SRC Act in respect of the accepted injury as at the 14 June 2018.”[105]
[105] Exhibit R4, p.6.
SLAP tear part of the accepted injury?
As previously mentioned, the respondent accepts that the applicant suffered a compensable injury on 13 January 2018. Moreover, each party accepts that the left arm yank and pull back incident of 13 January 2018 comprised the mechanism by which the applicant suffered that injury. The parties differ, however, as to the nature of the injury so suffered.
The respondent characterised it as a left shoulder soft tissue injury.[106] In opening, the applicant described the injury as a mixture of a traumatic left shoulder superior labral tear (a “SLAP tear”) and an aggravation of underlying left shoulder degenerative changes. For reasons which will become apparent later, however, the SLAP tear was the focus of the applicant’s submissions. According to the applicant, the Tribunal should be satisfied that the 13 January 2018 incident caused the SLAP tear, ie, the SLAP tear was encompassed within the injury in respect of which a liability to compensate the applicant had been accepted by the respondent.[107]
[106] Transcript, pp.27-28.
[107] In considering whether the SLAP tear is encompassed within or caused by the result of the 13 January 2018 injury “[w]hat is required is a commonsense evaluation of the causal chain…”: see Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, 463-4
This submission involved a process of elimination, the adoption of which rested on three propositions, being that:
(a)the 13 January 2018 incident could have caused a SLAP tear.
(b)nothing occurred prior to the 13 January 2018 incident that could have caused the SLAP tear.
(c)there was nothing before the Tribunal suggestive of anything occurring after 13 January 2018 which could have caused the SLAP tear.
I accept the first of these propositions.
The medical evidence before the Tribunal did not establish that what occurred on 13 January 2018 would have or was likely to have caused the applicant’s SLAP tear. Indeed, Mr Blackmore, called by the applicant, declined to opine that, of the mechanisms that could have caused the applicant’s SLAP tear, the one reflected in the 13 January 2018 incident was the more (or most) likely to have been the cause.[108]
[108] Transcript, p.127.
The evidence of Mr Blackmore, Dr Burke[109] and Dr Haig was, however, to the effect a SLAP tear could have been caused by the incident of 13 January 2018.
[109] Transcript, p.142.
As to the second and third propositions, the gist of the applicant’s submission appeared to be that I could infer that the SLAP tear was caused by the 13 January 2018 incident because nothing had occurred either before or after 13 January 2018 that could have caused the SLAP tear.
I do not accept that submission. While I am satisfied that nothing occurred after 13 January 2018 that could have caused the SLAP tear, I am not satisfied that the SLAP tear could not have been caused by incidents that occurred before 13 January 2018.
In terms of post 13 January 2018 occurrences, as I understand what was put on behalf of the applicant, it was that I ought to be satisfied that nothing occurred that could have resulted in the SLAP tear because there was nothing before the Tribunal suggestive of any such thing occurring. As I see it, however, a mere absence of evidence as to whether any such thing had so occurred does not mean that the Tribunal ought to be satisfied that no such thing had occurred. Here, however, there is more than a mere absence of evidence. I note that in the history taken by Dr Haig in June 2021 it was said that there “…have been no further injuries since that in January 2018.”[110] Further, the applicant gave evidence to the effect that, at least while she was outside Australia in 2018 (February to October or November 2018), she did not engage in any material physical activities.[111]
[110] RTB, p.180.
[111] Transcript, p.54.
Hence, on the material before me, I am satisfied that nothing occurred after 13 January 2018 that could have caused the applicant’s SLAP tear.
As stated earlier, however, I am not satisfied that the SLAP tear could not have been caused by incidents that occurred before 13 January 2018.
Neither party bears an onus of proof in the context of these proceedings.[112] Indeed, in Tribunal proceedings, any suggestion that a party bears such an onus, whether legal or evidential, is apt to mislead.[113] Nevertheless, insofar as a party seeks to prosecute a case that reflects a departure from the subsisting position, the party will only succeed if I can be satisfied that the departure is appropriate.[114] In that sense, the party bears a burden of persuasion.[115] That burden will not be satisfied by mere suspicion as to the appropriateness of the departure sought.[116]
[112] BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [54] where it was stated that “…the decision is an administrative decision to which the rules of evidence are inapplicable and the evidentiary burden of proof inapposite….”.
[113] Comcare v Power [2015] FCA 1502 at [57]; McDonald v Director-General of Social Security (1984) 1 FCR 354 at 358. See also Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60 at [92] where reference was made to the “… principle, long established by authority, that the curial notion of onus of proof is unhelpful in administrative decision-making including in the Tribunal”.
[114] Toomey and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 468 at [58]-[59].
[115] Millar and Comcare (Compensation) [2019] AATA 4973 at [152]. See also Beezley v Repatriation Commission (2015) 150 ALD 11 at [68], where it was noted that if “…an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest”.
[116] Shearing and Director-General of Social Security [1983] AATA 116 at [30].
Here, the applicant prosecutes a case that would see a departure from the subsisting position, a position which sees her vested with an entitlement to compensation with respect to the January 2018 injury but no present entitlement to any such compensation. In the context of the process of elimination approach adopted by her, for the applicant to succeed in her case, the Tribunal needs to be satisfied that nothing occurred before 13 January 2018 that could have resulted in the SLAP tear.
Several contentions were made on the applicant’s behalf in support of her submission that the Tribunal ought to be so satisfied.[117] Those contentions were directed to the question of whether the applicant’s SLAP tear could have been caused by either or both of the matters identified in the general practitioner medical records of 9 October 2017 referred to earlier. As will be recalled, those records referred to a fall from a camper van in around July 2017 and an incident in early October 2017 in the course of violence protection management training.
[117] Transcript, p.150.
First, it was said that there was no evidence of any medical attendance relating to the applicant’s left shoulder prior to 9 October 2017 (albeit there were references in the material before the Tribunal to a previous injury while yachting that resulted in a “de-gloving”).
As I see it, however, even if the applicant did not seek medical attention for her left shoulder condition until 9 October 2017, that is not indicative of the injury said to have been suffered when falling from a camper van around three months earlier not having resulted in a SLAP tear. Indeed, the applicant did not seek medical attention in respect of the injury suffered in January 2018 until around one year later. Further, evidence from Mr Blackmore, was to the effect that SLAP tears may not be immediately symptomatic.[118]
[118] Mr Blackmore disagreed with the proposition that an absence of sharp pain is inconsistent with suffering a SLAP tear: “not everyone feels their pain straightaway” (Transcript, p.123).
Second, it was contended that any effects of the applicant’s fall from the camper van had effectively resolved by early October 2017. While the records of the 9 October 2017 medical attendance did identify an injury to the applicant’s left shoulder “three months ago” (that is, in around July 2017), it was said that there is no evidence of that injury having resulted in any symptoms or need for medical treatment before 9 October 2017. Indeed, the attendance on 9 October 2017 was not the result of the injury three months earlier but, rather, the result of a left shoulder injury suffered by the applicant in early October 2017 when undertaking violence protection management training, being training which the applicant said she would not have engaged in if she had then been suffering from any ongoing problems as a result of her fall from the camper van.[119]
[119] Transcript, pp.65, 104-105.
I do not accept this second contention. In January 2019, the applicant provided a history to a Chinese medicine practitioner indicating she had been experiencing bursitis and tendonitis in her left shoulder “which started about 18 months prior to our meeting”[120] (ie, around the time of the fall from the camper van). In the clinical notes of 9 October 2017, the applicant’s left shoulder condition was described as one which was “getting better” before the training in October 2017, not as one which was completely resolved. Further, Mr Blackmore did not accept a proposition put to him to the effect that a person who had suffered a SLAP tear would have been unlikely to be able to participate in “vigorous self-defence training.”[121]
[120] See report of Gal Mor of 25 January 2022 (R9).
[121] Transcript, p.126.
In any event, as I see it, it is likely that the applicant did, in fact, seek medical attention with respect to her left shoulder prior to 9 October 2017. As previously outlined, the clinical notes of the general practitioner who saw the applicant on 9 October 2017 noted that an
x-ray of the applicant’s left shoulder had been done in response to the injury three months earlier. The applicant would, I infer, have seen a health services professional in order to arrange for and have that x-ray. Moreover, I note that the applicant having gone to the trouble of getting an x-ray was, according to Mr Blackmore, indicative of the camper van incident having been significant.[122]
[122] Transcript, p.123.
Even if, however, the applicant had not sought medical attention for her left shoulder until 9 October 2017 and even if that was somehow indicative of the injury some three months earlier not having resulted in a SLAP tear, it is not indicative of a SLAP tear not having been the result of the injury suffered by the applicant in the course of her violence protection management training in early October 2017. As for that injury, the applicant said it had resulted in her shoulder becoming “really painful”; it had resulted in “immense pain”.[123]
[123] Transcript. pp. 51, 64.
In any event, any absence of evidence of symptoms or need for medical treatment before 9 October 2017 with respect to the injury suffered in around July 2017 is not supportive of a conclusion that the applicant’s SLAP tear was a result of the 13 January 2018 incident. As just mentioned, SLAP tears may not be immediately symptomatic. Moreover (and as elaborated upon shortly), there is extensive evidence of the applicant suffering symptoms of, and obtaining treatment in relation to, a left shoulder condition before 13 January 2018.
Thirdly, it was contended that the gradual improvement in the applicant’s left shoulder condition prior to the 13 January 2018 incident (as reflected in the physiotherapist’s notes of 17 January 2018) was inconsistent with her then suffering from a SLAP tear given that, according to Mr Blackmore, SLAP tears do not “heal themselves.”[124]
[124] Transcript, p.120.
I do not accept this contention.
On the material before me, I see no inconsistency between there having been some improvement in the applicant’s left shoulder condition prior to 13 January 2018 and her then suffering from a SLAP tear. While SLAP tears might not heal themselves, there is nothing before me that suggests that, insofar as they are symptomatic, their symptoms do not wax and wane.[125] Indeed, I infer that they do wax and wane, given that:
[125] At FST11, p.8, it is noted that in a matter of days after the 13 January 2018 incident the applicant’ s condition was said to have experienced a little improvement
(a)The applicant is said to have become unable to fulfil her pre-injury duties in early 2018 but then, in late 2018, to have felt well enough to again perform those duties (albeit with the assistance of analgesia, acupuncture and massage[126]).
(b)The applicant is said to have been able to fulfil her pre-injury duties for several weeks after 13 January 2018.
(c)The applicant did not find it necessary to seek medical attention with respect to her left shoulder until more than a year after 13 January 2018.
(d)The applicant’s evidence was that it was in the nature of her injury for her symptoms to get “a little better for a while …and then it gets worse”.[127]
(e)
The history provided by the applicant to the general practitioner she saw on
5 February 2019 was that her condition “never got better completely”, suggestive of improvement in her symptoms for a time.
(f)In May 2019, the applicant told a prospective employer that she had fully recovered from her shoulder condition in January 2019.[128]
[126] Transcript, p.55.
[127] Transcript, p.95.
[128] SERCO pre-employment medical report and Transcript, pp.99, 100, albeit that the applicant later accepted that she had lied when seeking employment by SERCO.
Fourthly, it was contended that the applicant experienced symptoms consistent with her having suffered a SLAP tear after 13 January 2018. In particular, after 13 January 2018, the applicant complained of having had trouble pulling heavy doors[129] (noting that doors in the mental health unit in which the applicant worked were, relative to other hospital doors, quite heavy[130]). This was said to be consistent with her then having a SLAP tear. In this regard, Mr Blackmore gave evidence to the effect that pulling a heavy door could, potentially, be painful for a person suffering from a SLAP tear.[131]
[129] See the report of the physiotherapist of 4 March 2019 referred to earlier. See also Transcript, p.53 where the applicant describes difficulties with her duties she experienced after 13 January 2018.
[130] Transcript, p.49.
[131] Transcript, p.118.
As I see it, the fact that the applicant complained of a difficulty in opening heavy doors after 13 January 2018 is not a basis on which to find that nothing occurred before 13 January 2018 that could have resulted in the SLAP tear. While there is no evidence of the applicant having made a similar complaint prior to 13 January 2018, I am not satisfied that the absence of such evidence warrants a conclusion that her trouble with heavy doors only manifested after 13 January 2018.[132] It was the applicant who had the capacity to provide evidence that her left shoulder troubles before 13 January 2018 did not include any difficulty in pulling heavy doors. The applicant’s failure to adduce such evidence weighs against a finding that she did not then have that difficulty[133] in a context where evidence before the Tribunal is to the effect that, prior to 13 January 2018:
(a)incidents had occurred of a type that could have resulted in a SLAP tear.[134]
(b)the applicant was experiencing significant left shoulder problems.
[132] Cf Transcript, p.143.
[133] Transcon Holding Pty Ltd v Aged Care Quality and Safety Commissioner [2023] FCAFC 60 at [96] where it was said that “…it was entirely appropriate for the Tribunal to give weight to the evidence (or lack thereof) according to the capacity of each party to adduce that evidence…”.
[134] Mr Blackmore’s evidence was that a fall from a camper van or the undergoing of violence protection management training were events of a type that could have resulted in a SLAP tear: Transcript, p.119.
Moreover, while difficulty in dealing with heavy doors might be consistent with a SLAP tear, it is not clear why such a difficulty would also not have been consistent with a soft tissue injury of the type for which the respondent accepted liability.
Fifthly, it was contended that the applicant was incapacitated for work after 13 January 2018 but, prior to then, she had been able to continue with her work. In support of the proposition that the applicant was incapacitated for work after 13 January 2018, reference[135] was made to the occupational therapist’s report dated 13 March 2019 (but more likely compiled in May 2019).[136]
[135] Transcript, p.10. See ST5, pp.7-16.
[136] ST5, pp.7-17. The Tribunal is unsure of the date of the report given references in it to matters that occurred after 13 March 2019, such as a case conference on 1 May 2019.
Given my conclusions concerning the nature of the injury suffered on 13 January 2018 and the duration of the effects thereof, I do not need to address the issue of whether that injury resulted in the applicant’s incapacity for work. I do note, however, that I have some difficulties with the occupational therapist’s report on which the applicant relied. As was noted on behalf of the applicant, in the report the applicant was said to be unfit for any employment. The report outlined various tasks involved in the applicant’s pre-injury duties and noted that the applicant had become unable to complete several of them. The therapist’s opinions in this regard appeared, however, to be based on the applicant’s own reporting of her symptoms to a significant extent.[137] For instance, the therapist concluded that the applicant was unable to complete her nursing rounds because she “reported that due to the unpredictable nature of some of her patients she feels uncomfortable completing this…”[138] Similarly, opinions expressed in the report as to the applicant’s “functional status” appear largely to have been based on the applicant’s own reporting. In an email of 1 May 2019, the therapist indicated that the respondent “was able to accommodate…[the applicant] with suitable duties…on a full time basis” but that the applicant was “…adamant that a return to work in any capacity is not possible until she receives treatment.”[139] I note that the therapist’s reliance on the applicant’s own reporting might well have been a consequence of the applicant then being geographically remote from the therapist[140] and her having been unable to speak to the applicant’s treating doctor.
[137] ST5, p.13.
[138] Ibid.
[139] ST7, p.18.
[140] ST5, p.12: noting that the applicant had moved away from the ACT to Victoria.
While Dr Wu certified on 19 February 2019 that, as a result of a temporary condition, the applicant was unfit for work for a month (albeit that that the applicant’s left shoulder range of movement was considered to be then close to normal), somewhat inconsistently with the suggestion that the applicant was incapacitated for work in 2019 and as noted earlier:
(a)In February 2019, Dr Arya opined that the applicant was fit to work subject to her duties being modified.
(b)In March 2019, a doctor certified that the applicant was fit and not suffering a medical condition likely to be aggravated by or render her unfit for service at sea.[141]
(c)A couple of months later, the applicant was said to have advised a prospective employer that she had a recent contract on a cruise ship as a registered nurse, involving some customer service.[142]
(d)In May 2019, in the context of a job application, the applicant had apparently stated that her shoulder condition had been asymptomatic since January 2019 (albeit that the applicant effectively accepted at the hearing that she had lied about this due to her being very keen to obtain employment).
[141] FST29, p.43.
[142] FST34, p.55. Also noted is the general practitioner’s opinion of February 2019 that the applicant’s left shoulder range of movement was then close to normal.
I note also that, on the material before the Tribunal, the cessation by the applicant of her work for the respondent in early January 2019 might well be considered to have been the result of her refusal to deal with a particular patient rather than because of any incapacity for work.[143]
[143] See the November 2021 statement of the applicant where reference is made to the applicant’s refusal to comply with a direction to work with a particular patient. At T1, p.5, the applicant acknowledges that the request to stand down was made “upon a near incident with the same patient”. According to Dr Burke, the applicant “…told me that then in around January 2019, she was asked to go and work with the same patient who had wrenched her shoulder previously. She indicated that she was not prepared to do this and hence in January 2019 she had to stand down from her position: RTB, p.156. In the applicant’s oral evidence, when outlining the circumstances in which she made her compensation claim, the applicant said “So I was confronted, while - with the same gentleman who was under the care in the high care unit - confronted with the same man who was - who assaulted, or pulled my arm, a few years back. And we had a nurse - new nurse unit manager, who allocated me to him. And at that time, he was very, very unstable, and he was being looked after by two prison guards, and on some occasions three, with one of our own officers, including an RN, who would have to be with him at all times. I declined the offer, because - and our whole staff were there, to which the nurse unit manager advised that I had no option to decline; I advised that I do.”: Transcript, p.56.
In any event, even if incapacitated for work in 2019 (as stated in the occupational therapist’s report), the 13 January 2018 injury having caused the SLAP tear is not a reasonably probable inference that might be drawn from the facts that the applicant was able to work prior to that injury but unable to do so roughly a year or more thereafter.
First, an enduring incapacity for work is not an inevitable consequence of a SLAP tear. While in his March 2022 report Mr Blackmore answered “yes” when asked whether the applicant’s left shoulder condition would have prevented her from fulfilling her unrestricted duties as a nurse, when considered in context, I find that his response to the question posed was equivocal. The equivocation concerning that response is apparent from the precise terms in which it was expressed. Immediately after and by way of explanation for his affirmative response to the question, Mr Blackmore simply stated that SLAP tears “can be painful.” He did not suggest that SLAP tears are inevitably and permanently painful. The expressed basis for Mr Blackmore’s response does not constitute a foundation for it. That a condition “can be” painful is a statement as to its possible effect. An opinion that a condition would have a particular consequence is not supported by a statement as to the possible effect of the condition. Indeed, the potential for pain as opposed to its inevitability is reflected in Mr Blackmore’s oral evidence when he noted simply that tears in the location of the applicant’s SLAP tear “often can be symptomatic”.[144]
[144] Transcript, p.116.
In any event, the applicant’s case involves accepting that her SLAP tear did not have the inevitable and enduring result of precluding her from performing her duties. She worked a number of weeks in January and February 2018, as well as in December 2018, after the injury of 13 January 2018.
Secondly, with time, the applicant’s condition might simply have worsened.
As I see it, the applicant’s submissions downplay the left shoulder problems she was experiencing before 13 January 2018. By way of recap, I note that:
(a)In around July 2017, the applicant would appear to have injured her left shoulder after falling off a camper van.
(b)The injury was sufficiently problematic as to warrant an x-ray being taken of the applicant’s left shoulder.
(c)In early October 2017, the applicant again hurt her left shoulder when undergoing violence protection management training.
(d)On 9 October 2017, the applicant attended a general practitioner complaining of pain and restricted range of movement in her left shoulder.
(e)On 1 November 2017, the applicant again attended a general practitioner. The history she then provided included reference to a fall on her left shoulder three months earlier.
(f)After ultrasound imaging of her shoulders on 8 November 2017, the applicant underwent an ultrasound guided injection in her left shoulder on 29 November 2017.
(g)In a further attendance on a general practitioner on 18 December 2017, a treatment plan was discussed involving trialling long-acting non-steroidal anti-inflammatories, with a review in a month with a view to then referring the applicant to an orthopaedic surgeon if her left shoulder condition was not then improving. Put simply, the applicant was being advised about the potential need for her to obtain surgical advice with respect to her left shoulder prior to the incident of 13 January 2018.
(h)On 19 December 2017, the applicant chose to lodge with the respondent an incident report with respect to the left shoulder injury she suffered when undergoing violence protection management training some 2.5 months earlier. This suggests that any injury she had suffered in the course of that training had not resolved.
(i)On 4 January 2018, the applicant sought physiotherapy for her left shoulder, at which time she complained of having suffered an injury to her shoulder while undergoing training for her work. She was then said to have a restricted range of movement on her left side shoulder.[145] Indeed, limitations on the applicant’s left shoulder flexion and abduction, as measured on 4 January 2018, were the same as those when measured on 17 January 2018.[146]
(j)While working full duties prior to the 13 January 2018 injury, the applicant’s evidence was that this was achieved “with a lot of analgesia”.[147]
[145] FST11, p.6-7.
[146] FST11, pp.7-8.
[147] Transcript, p.52.
Disregarding the SLAP tear, did the effects of the applicant’s injury continue?
As I am not satisfied that the injury the applicant suffered on 13 January 2018 caused or encompassed her SLAP tear, in considering whether the effects of that injury were continuing, I disregard that tear.
I note in passing that doing so is consistent with Dr Burke’s opinion to the effect that the pathology revealed in Mr Blackmore’s operative diagnosis of the applicant’s left shoulder condition in February 2021 was probably not contributed to by her 13 January 2018 injury.[148] Indeed, in his oral evidence, Dr Burke opined that the SLAP tear predated the 13 January 2018 injury.[149]
[148] Report of 15 June 2022.
[149] Transcript, p.138.
Disregarding the SLAP tear, I find that the applicant did not continue to suffer the effects of her January 2018 injury after 13 June 2018 and that she is not currently suffering from those effects.
That finding finds support in the evidence of Dr Haig. His evidence was to the effect that, as a result of the January 2018 incident, the applicant suffered a soft tissue injury[150] which would have “not lasted beyond about six weeks”.[151]
[150] In his oral evidence, Dr Haig explained that the injury of 13 January 2018 was muscular in origin and, as such, a soft tissue injury which “tend to settle within a terribly short space of time”: Transcript, p.128.
[151] RTB, p.192: report of 8 July 2021. Dr Haig also opined that the applicant was suffering from a chronic pain syndrome: RTB, p.184. When asked at the hearing, however, whether he considered that syndrome to be secondary to the injury suffered by the applicant on 13 January 2018, Dr Haig simply noted that in addition to that injury there had been two earlier incidents in 2017: Transcript, p.129. Dr Burke also attributed the applicant’s ongoing symptoms to a chronic pain syndrome: see his report of 28 January 2022. At the hearing, the applicant did not pursue a claim that the injury she had suffered encompassed or resulted in a chronic pain syndrome.
Similarly, when Dr Burke was asked for a diagnosis of the injury suffered by the applicant on 13 January 2018, his response was “possible soft tissue injury” and possible aggravation of a pre-existing pain condition, the effects of which were “likely to have resolved over the next one to two months”[152] (albeit in his oral evidence Dr Burke suggested that those effects may have persisted for around three months[153]).
[152] Dr Burke’s 15 June 2022 report.
[153] Transcript, p.138.
Insofar as there was any inconsistency, I prefer the opinions of Doctors Haig and Burke to those of Mr Blackmore.
In his report of March 2022 Mr Blackmore expressed disagreement with the opinions of Doctors Burke and Haig as to the short-term nature of the effects of the injury suffered by the applicant on 13 January 2018. He appeared to do so, however, principally on the basis that those doctors might not have been aware of the applicant’s SLAP tear.[154] The fact that the SLAP tear was the source of Mr Blackmore’s disagreement with Doctors Burke and Haig was made apparent in Mr Blackmore’s oral evidence. What he said he disagreed with was their statement “…that any exacerbation, aggravation, of that left shoulder should’ve worn after six months, after the pulling – pulling incident. So, it was my opinion that a superior labral tear and the pain associated with it may not wear off after six months.”[155]
[154] See Mr Blackmore’s report of 15 March 2022.
[155] Transcript, p.119.
Implicit in Mr Blackmore’s report is an assumption that nothing had occurred that could have caused the applicant’s SLAP tear other than the injury of 13 January 2018. In his oral evidence, Mr Blackmore made clear that, when expressing his disagreement with Doctors Burke and Haig in his report of March 2022, he was not aware of either the camper van fall or the violence protection management training incidents in 2017. Mr Blackmore agreed that those types of incidents could cause a SLAP tear.[156] The applicant was said by Mr Blackmore not to have explained that she had pain prior to the
13 January 2018 incident.[157]
[156] Transcript, p.119.
[157] Transcript, p.122.
In any event, if, as I have concluded, the SLAP tear ought to be disregarded when considering the effects of the January 2018 injury, the source or at least principal source of Mr Blackmore’s disagreement with Doctors Burke and Haig falls away. Indeed, insofar as the SLAP tear is disregarded and the applicant is considered to have only suffered a soft tissue injury or aggravation of a pre-existing condition as a result of the 13 January 2018 incident, Mr Blackmore’s evidence was, like that of Doctors Burke and Haig, to the effect that it would likely have resolved in a matter of months.[158]
[158] Mr Blackmore in oral evidence noted that “…if it is just impingement of AC joints that get aggravated, usually they improve with conservative treatment after maybe, you know, three to six months of steroid injections and physiotherapy” and “if the medico and legal doctors were talking only about the AC joint and subacromial changes that we initially thought were the only issues in her shoulder, then I would share that opinion that those types of problems can often settle down after three to six months of conservative treatment.”: Transcript, p.120.
Conclusion
I am not satisfied that the applicant continued to suffer the effects of her January 2018 injury after 13 June 2018 or that she is currently suffering from those effects.
Each decision the subject of review is set aside, and, in substitution, the Tribunal decides that the respondent is not presently liable to compensate the applicant in respect of the injury she suffered on 13 January 2018 and was not so presently liable at any time in the period after 13 June 2018 to the date of this decision.
I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell
............................[SGD]............................................
Associate
Dated: 24 May 2023
Dates of hearing: 30 November to 2 December 2022 Counsel for the Applicant: Nicholas Horner Solicitors for the Applicant: J.N. Zigouras & Co Lawyers Counsel for the Respondent: Andrew Schofield Solicitors for the Respondent: HWL Ebsworth Lawyers
- AGLC
- MacRae and Australian Capital Territory (Compensation) [2023] AATA 1386
- Case
- [2023] AATA 1386
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Tribunal were whether the respondent could validly deny all future present liability to compensate the applicant, whether the effects of the applicant's injury were continuing, and specifically, whether a superior labral tear of the left shoulder was encapsulated within the accepted condition. The Tribunal also considered the burden of persuasion regarding the continuing effects of the injury, particularly in light of a previous injury to the applicant's left shoulder.
The Tribunal reasoned that the respondent could not unilaterally decide it would never have future present liability to compensate the applicant. However, after considering the medical evidence, including the opinion that a superior labral tear was not a result of the accepted injury and that other potential soft tissue injuries or aggravations would likely resolve within months with conservative treatment, the Tribunal was not satisfied that the applicant continued to suffer the effects of her January 2018 injury after 13 June 2018, nor that she was currently suffering from those effects. The Tribunal therefore decided that the respondent was not presently liable to compensate the applicant for the injury after 13 June 2018 up to the date of the decision.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.