McAuliffe and Comcare
[2003] AATA 607
•27 June 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 607
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/610
GENERAL ADMINISTRATIVE DIVISION )
Re BRUCE McAULIFFE Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member KL Beddoe
Brigadier IRW Brumfield, Member
Dr KP Kennedy, OBE, MemberDate27 June 2003
PlaceBrisbane
Decision The Tribunal decides that the respondent is not liable to the applicant for ongoing workers’ compensation. (Sgd) KL Beddoe
Senior Member
CATCHWORDS
WORKERS’ COMPENSATON – injury to right shoulder – whether the respondent is liable to pay workers’ compensation to the applicant – whether there is an incapacity for work because of the injury – whether incapacity payments should be made - whether the applicant has a permanent impairment
Compensation (Commonwealth Employees) Act 1971 Part III
Safety Rehabilitation and Compensation Act 1988 ss 14, 16, 24, 25, 29, 123A, 124,139
Brennan v Comcare (1994) 122 ALR 615
Isley v Wattyl Australia Pty Ltd (1997) 75 FCR 1REASONS FOR DECISION
27 June 2003 Senior Member KL Beddoe
Brigadier IRW Brumfield, Member
Dr KP Kennedy, OBE, Member1. By a decision notified by letter of 25 January 2000 the respondent decided to affirm a determination dated 21 July 1999. That determination found that the applicant suffered an injury in the course of military service on 14 September 1971. The injury was described as a soft tissue injury to the right shoulder. The respondent decided that the Department of Defence was not liable to pay compensation on and from 14 January 1972. The respondent found there was no incapacity for work because of the injury. The respondent also found there was no entitlement to payment for permanent impairment and for reimbursement of expenses. Incapacity payments were to be terminated from 18 August 1999.
2. When the applicant suffered his injury on 14 September 1971 the relevant statutory provisions were those contained in Part III of the Compensation (Commonwealth Employees) Act 1971 (“the 1971 Act”) which had come into operation on 1 September 1971.
3. Section 139 of the Safety Rehabilitation and Compensation Act 1988 (as now entitled) [“the 1988 Act”] repealed the 1971 Act.
4. Sub-section 124(1) of the 1988 Act provides that (subject to the provisions of Part X) the 1988 Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after 1 December 1988.
5. Section 123A of the 1988 Act relevantly provides, in effect, that a reference to an injury suffered before 1 December 1988 is a reference to an injury within the meaning of the 1971 Act as that Act was then in force.
6. Sub-section 124(1A) of the 1988 Act relevantly provides that a person is entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was or would have been payable to the person in respect of that injury, loss or damage under the 1971 Act.
7. But, by virtue of sub-section 124(2), a person is not entitled to compensation under the 1988 Act in respect of an injury, loss or damage suffered before 1 December 1988 if compensation was not payable in respect of that injury, loss or damage under the 1971 Act as in force when the injury, loss or damage was suffered.
8. By virtue of sub-section 124(3), a person is not entitled to compensation under sections 24 or 25 in respect of permanent impairment for an injury, loss or damage suffered before 1 December 1998 if:
(a)the person received compensation of a lump sum in respect of the impairment under the 1971 Act; or
(b)the person was not entitled to receive compensation of a lump sum in respect of that impairment under the 1971 Act as in force when the impairment occurred.
9. Section 14 of the 1988 Act provides for liability to pay compensation in respect of an injury resulting in incapacity for work. A person is not entitled to compensation under section 29 of the 1988 Act in respect of a period of incapacity occurring before 1 December 1988 [subsection 124(5)].
10. This matter is before the Tribunal because of an order of the Federal Court dated 17 June 2002 as follows:
“1.The appeal be allowed and the Administrative Appeals Tribunal’s decision, in so far as it affirms the decision of the delegate of the respondent that the respondent is not liable to the applicant for ongoing workers’ compensation, be set aside.
2.The case be remitted to the Administrative Appeals Tribunal differently constituted, but only for redetermination, with or without further evidence, of the issue whether the respondent is liable to the applicant for ongoing workers’ compensation.
3.The respondent pay the applicant’s costs of and incidental to the appeal, including reserved costs if any, to be taxed.”
11. At the hearing, Mr O’Gorman appeared for the applicant and Mr Clark appeared for the respondent. The documents lodged in application Q2000/306 pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal as the “T” Documents (T1 to T398). Further documents were tendered and marked as exhibits as follows:
§Exhibit 1 Transcript of Tribunal Proceedings 19 and 20 February 2001
§Exhibit 2 Addendum to Dr Shepherd’s report (dated 1 November 1999)
§Exhibit 3 Clinical notes 21 May 1996
§Exhibit 4 Dr Shepherd’s report (dated 25 November 1999)
12. Oral evidence was given by the applicant, Dr Fardoulys, orthopaedic surgeon, Dr Shepherd, orthopaedic surgeon and Dr Thomas, orthopaedic surgeon.
13. We make the following findings of fact.
14. The applicant was born on 5 July 1950. Relevant employment was in the Australian Army from February 1971 to August 1972 pursuant to the National Service Act (1951-1964).
15. A medical examination after entry to the Army (T8) disclosed no medical conditions requiring comment by the medical officer. The applicant had not disclosed any such condition prior to entry into the Army (T4).
16. Document T7 is a report of injury which occurred on or about 14 September 1971 while the applicant was engaged in “Infantry Training Obstacle Crossing Drill”.. The document is endorsed by a medical officer with the diagnosis “dislocated right shoulder, reduced spontaneously”. The injury was said to be consistent with the applicant’s report of the injury with no evidence of a pre-existing injury. Probable period of incapacity arising from the injury was assessed as “Nil” days and it was said to be not likely to cause permanent ill-effects.
17. A further report by a medical officer dated 20 June 1972 (T9) indicated “no bony injury is evident” in relation to the dislocation of the right shoulder. Document T10 refers to a motor vehicle accident where the applicant was said to have landed painfully on his right shoulder. The report is dated 21 June 1972 and refers to an accident six weeks earlier. On referral the opinion expressed was:
“Post traumatic ache and stiffening of R shoulder is not of permanent significance and prognosis is good. No treatment needed.” (T10)
18. By letter dated 30 May 1995 the applicant advised the respondent of the following incidents (T14):-
§1972 Motor vehicle accident which aggravated shoulder injury;
§1979 Shoulder dislocated with box of vegies on shoulder;
§1994 Shoulder popped out upon fall on rocks on the way to a beach.
19. Document T394 is a copy of a letter by the applicant to the respondent. It includes the following summary of the incidents:
“SEVERITY OF TRAUMA
1ST 1971 Situation – fully tactical Army exercise in rugged terrain of the northern region of the Blue Mountains.
In a simulated movement forward whilst under fire a platoon was crossing a dirt road to seek cover in a deep ditch on the far side. At a run with full battle pack and rifle (approx 50Kg+), I tripped and fell in to the ditch on my right arm dislocating the shoulder.
2nd 1972 Bumped right shoulder in minor vehicle contact – no dislocation.
3rd 1979 Carrying box of tomatoes (no fall) – subluxation reduce spontaneously.
4th 1994 Tripped on flat rocks whilst entering water at beach. Fell into sandy bottom. Water was approx. 1 ft deep. Subluxation reduced spontaneously.”
20. In relation to the 3rd 1979 incident, Dr Shepherd recorded:
“He also described a fall in 1979 whilst carrying a box of tomatoes which resulted in a further dislocation of his shoulder.” (T393)
21. Dr Shepherd confirmed the statement as correct in his oral evidence.
22. In his oral evidence the applicant said that he did not fall.
23. As to the beach incident, the applicant said in oral evidence he was standing on rocks when he fell, denying he fell onto the rocks. In evidence-in-chief he said that he fell into the water having been walking on rocks on the edge of the water. He went to break his fall by outstretching his arm resulting in a dislocated shoulder.
24. The applicant is so uncertain about the beach incident in 1994 that we cannot be satisfied, on the balance of probabilities, that it actually occurred. In the alternative, if it did occur, the incident was so minor and of so little effect that the applicant has difficulty recalling the circumstances as to how he fell and the effect of the fall.
25. On 18 March 1996 the applicant made a claim for compensation in respect of:
“impaired use and pain to right shoulder now unable to continue my normal work.” (T15)
26. Prior to 1996 the applicant was employed in a series of positions relating to mineral and oil exploration and exploitation, and (in the years immediately before and after his Army service) irrigation (T25 and T26). In the later years these positions appear to have been of a sedentary nature but field work was involved at least some of the time.
27. Subsequent to the 1994 incident the applicant had trouble maintaining employment because of pain and difficulties with his right shoulder.
28. The respondent made arrangements for rehabilitation of the applicant with short term reported success but without a positive response in relation to return to employment.
29. Since leaving the Army the applicant has been employed in non-Commonwealth employment as follows:
§1972-74 Foreman supervising drilling and irrigation contracting company.
§1974-79 Own pumping and drilling company contracting to Government Departments.
§1980 Operator – iron ore processing from primary crusher to final ship loading stage. Control of crushers screen conveyors and ball mill operation on rotary shifts.
§1981-82 Drilling and mechanical supervisor to oil exploration contracts in Indonesia and Philippines.
§1982-85 Foreman road construction and concrete supply to construction sites.
§1985-89 Self-employed consultant to oil and mineral companies in camp establishment and construction of water supply, electrical and ancillary services.
§1990 Consultant driller – seismic oil exploration in Western Gulf Province.
§1990-91 Consultant to mining company in Kimberleys.
§1991 Several jobs in PNG drilling for oil companies.
The Medical Evidence
30. In July 1972, just prior to discharge from the Army, the applicant’s right shoulder was the subject of x-ray. The report states “No bony injury is evident” (T9). A physical examination at that time indicated there was full range of movement in the right shoulder (T10). The report also noted post traumatic ache and stiffness in the right shoulder not of permanent significance, progress good and no treatment needed (T10). On discharge the shoulder was noted as still giving trouble (T11).
31. In July 1996 a CT scan of the applicant’s right shoulder was reported as showing no evidence of a recent fracture but reduced space, an anteroinferior spur formation and a small degenerative cyst. No other abnormality was found (T37). Dr Thomas also interpreted the scan and thought it showed early degenerative change.
32. In a detailed report, dated 4 July 1996 and addressed to the Department of Defence, Dr Thomas, an orthopaedic surgeon, concluded there was an early degenerative condition affecting the right shoulder region (T38).
33. Dr Thomas said the applicant would be able to do work of at least a moderate and light to moderate nature on a consistent basis, particularly if his arm is not subject to excessive stresses, or strains, or working with his upper limb in awkward positions for any length of time. He would not be able to do full military duties (T38).
34. The Department of Defence sought a further report from Dr Thomas in 1999. Dr Thomas’ report is dated 5 July 1999 (T373). He said that examination showed a reasonably fit mobile man with the right shoulder showing some generalised muscle wasting as compared with the non-troublesome left side. No obvious neurological deficit was noted in the right upper limb.
35. Dr Thomas diagnosed “degenerative arthritis of the right shoulder involving the glenohumeral joint and, no doubt, the adjacent soft tissues”.. He maintained his view that the applicant was not totally incapacitated but thought the applicant could only do light work on a consistent basis with the ability to do some “more moderate activities on a part-time or casual way (sic)” (T373).
36. Document T374 is a pro forma questionnaire, completed in part by the applicant and in part by Dr Thomas, directed at compensation for economic loss. It is not directly relevant for present purposes but we note that Dr Thomas included the following comment:
“…his alleged disability with respect to the use of (the right shoulder) is somewhat overstated and with care and motivation he could use his arm for work of a light nature on a consistent basis.”
37. In response to questions from Mr O’Gorman, Dr Thomas said, in effect, that the present right shoulder condition was attributable in part to the 1971 incident in that some of the applicant’s problems could have some relationship to that incident in that it could have played some part but not a significant part.
38. In a further report dated 26 July 1999, Dr Thomas answered the question “Is (the applicant) totally incapacitated for work by the effects of the fall on 14 September 1971 on his right shoulder?” with a “No” (T380).
39. Dr Fardoulys operated on the applicant’s right shoulder on 2 September 1997. The operation revealed arthritic changes and old injuries (T304). Dr Fardoulys reviewed the applicant on a number of occasions after the operation and found that the applicant had achieved a good range of movement in the shoulder. He still had pain especially with repetitive work or with changes in the weather. Dr Fardoulys said this pain represents a combination of early degenerative changes and rotator cuff tendonitis and was slowly improving with a rehabilitation program (T304).
40. By a letter dated 7 September 1998, Dr Fardoulys referred the applicant to Dr O’Callaghan, a pain management specialist (T312). In a letter dated 10 November 1998, Dr O’Callaghan stated that the applicant should be admitted to hospital for treatment and pain management. Dr O’Callaghan reported a history of right shoulder dislocation and diagnosed arthritis with rotator cuff tear with pain and stiffness (T321).
41. Document T393 is a report “To Whom it may Concern” by Dr Shepherd, orthopaedic surgeon, dated 19 October 1999. Dr Shepherd described the 1971 incident as “ran across a road and fell into a ditch”. In his oral evidence Dr Shepherd said his report records the history given by the applicant. He diagnosed rotator cuff syndrome.
42. Dr Shepherd’s view at T393, Exhibit 2, Exhibit 4 and in his oral evidence is effectively explained in his letter to the applicant dated 25 November 1999 (Exhibit 4) where he stated:
“With reference to the current symptoms in your shoulder. At the time of your consultation on 19.10.99, I felt that the signs in your shoulder were principally those of rotator cuff syndrome. Rotator cuff syndrome is extremely common in the community and I do not believe it is the direct result of your fall in 1971. There is also evidence of osteoarthritic change in your shoulder. In particular I note that Dr Fardoulys observed evidence of this at his arthroscopy. Osteoarthritis can occur for many reasons. In some people it is unexplained. If there is damage sustained to the articular surfaces of a joint, then this can contribute to osteoarthritis at a later date. I do not have any good evidence that this occurred at the time of your fall in 1971. Osteoarthritis is essentially a wear phenomenon and no injury to any joint ever helps prevent this wear situation, though it may not directly contribute to it either. It is possible that the osteoarthritic change in your shoulder does give you symptoms from time to time and it is also possible that the relative prominence of your symptoms, namely of osteoarthritis or of rotator cuff syndrome, may alter over time. I note in Dr Thomas’ report of 1999, that he formed the impression that osteoarthritis was the major symptomatic pathology in your shoulder. In short I do not think there is much evidence either way on the relationship between your fall in 1971 and osteoarthritis of your shoulder. The damage to your glenoid labrum in 1971 definitely contributes to your dislocations, but I do not believe it is specifically related to the osteoarthritis in your shoulder. It is unrelated to your rotator cuff syndrome.”
43. Dr Friis, a sports physician, made a detailed report dated 10 July 1997 to the Department of Defence (T177). He reported the signs and symptoms were consistent with rotator cuff pathology secondary to glenhumeral instability. He recommended referral to Dr Fardoulys.
44. Document T71 is a copy of a report by Dr Bossingham, rheumatologist, dated 3 October 1996 and addressed to the Department of Defence. Dr Boddingham diagnosed subacromial pain but thought there was some more deep-rooted problem occurring which he described as serious psychological problems.
45. A psychological assessment was performed for CRS Australia by Donna Goodman, a registered psychologist (T362). She reported that testing suggested several problematic personality traits. Ms Goodman found that the applicant’s personality and social arrangements did not embrace notions of returning to work or a rehabilitation program.
46. The applicant was subsequently referred to Janice Taylor, occupational therapist/rehabilitation consultant who wrote a report dated 8 July 1999 (T375). She found that the applicant was most suited to work falling into the sedentary category of physical work demands, with his main abilities as good sitting and standing tolerance, good walking ability over flat ground, ability to crouch, kneel, stoop, climb stairs, use foot controls and reach forward and overhead with left arm.
47. Restrictions noted were reduced lifting capacity, operating controls and reaching overhead with right arm. She also mentioned walking on uneven ground and climbing ladders.
Consideration
48. We have to consider whether the applicant’s present shoulder condition is causally connected with the admitted accident while serving in the Army in 1971.
49. At the time of the 1971 incident the relevant legislation was the Compensation (Commonwealth Employees) Act 1971 as it was then titled. The consequence is that the transitional provisions of the 1988 Act operate as explained by Gummow J in Brennan v Comcare (1994) 122 ALR 615 at 624-5 as follows:
“Part X of the 1988 Act, which includes s 124, provides comprehensive ‘transitional’ provisions. The provisions are transitional in a particular way. They are not concerned with the preservation of the old legislation in respect of rights and liabilities accrued thereunder. Rather, they deal with the creation and substitution from their commencement of new rights in respect of past events. Thus the provisions may be described only in a particular sense as being retrospective. On the other hand, s 2(2) of the 1991 Act is retrospective in a direct sense because it is given an operation which commenced before its enactment: Roughan v Day (1991) 32 FCR 581 at 595; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 365; 111 ALR 577.”
50. We accept that the applicant injured his shoulder in the first 1971 incident and again in the non-employment related motor vehicle accident.
51. While we do not doubt that the applicant also caused discomfort of some sort to his shoulder when carrying the box of tomatoes, if they were tomatoes, on his shoulder, and that he had a fall on a beach in 1994, we are not satisfied that these incidents resulted in any long term aggravation of the 1971 injury.
52. We accept that the applicant suffered a 10% loss of efficient use of his right arm because of the 1971 incident. We do not accept that the alleged incidents involving the box of tomatoes and the fall at the beach did anything which had a continuing effect on the applicant’s permanent impairment.
53. Nor do we accept that those alleged incidents have any causal connection with the 1971 incident. In particular we are satisfied that the rotator cuff syndrome as diagnosed by Dr Shepherd, Dr Friis and Dr Thomas is the proper diagnosis of the present condition and the claimed incident is not a relevant cause of that condition (Isley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6).
54. On the balance of probabilities and because of the applicant’s uncertainty about the detail of the two incidents, we are not satisfied that the incidents, if they occurred, were relevant events in relation to the applicant’s medical condition.
55. Further, we are satisfied that there is no causal link between the 1971 incident and the subsequent incidents which would allow us to be satisfied that the 1971 incident is an effective or operative cause of the shoulder condition at the time of claim. It is the subsequent motor vehicle accident which is the most likely cause if any of those incidents are. In particular, we rely on the reports of Dr Shepherd, especially the extract at paragraph 42 above.
56. For these reasons we are satisfied that the respondent does not have an ongoing liability for workers’ compensation. This is because there is no relevant injury as defined and no incapacity for work in terms of section 14 of the 1988 Act.
57. Nor is there any liability for compensation in respect of medical expenses pursuant to section 16 of the 1988 Act in relation to rotator cuff syndrome and osteoarthritis of the right shoulder. We are not satisfied, as explained, that these conditions are injuries as defined.
58. Whether the applicant is entitled to compensation for medical expenses and household expenses in respect of the 1971 injury is beyond the scope of this hearing and is not decided by us.
59. The Tribunal decides that the respondent is not liable to the applicant for ongoing workers’ compensation.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe, Brigadier IRW Brumfield, Member and Dr KP Kennedy, OBE, Member
Signed: .......................................................................................
AssociateDates of Hearing 25 and 26 November 2002
Date of Decision 27 June 2003
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Cranston McEarchern
Counsel for the Respondent Mr C Clarke
Solicitor for the Respondent Sparke Helmore
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