McAuliffe and Comcare

[2001] AATA 238

DECISION AND REASONS FOR DECISION [2001] AATA 238

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2000/306

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      BRUCE McAULIFFE        
  Applicant
           And    COMCARE  
  Respondent

DECISION

Tribunal       Mr. D.W. Muller, Senior Member

Date20 February 2001

PlaceBrisbane

..............(Signed)................................
  D.W. MULLER
  SENIOR MEMBER

CATCHWORDS
WORKERS' COMPENSATION – whether subsequent serious non-work related injury amounts to an aggravation of an old work-related injury – incapacity for work due to non-work related factors

REQUEST FOR WRITTEN REASONS FOR DECISION

Mr. D.W. Muller, Senior Member             

1. This is an application to review a decision to revoke all previous decisions which had accepted liability to pay workers' compensation to the applicant, Bruce McAuliffe.

2. Prior to the decision to revoke all previous decisions which had accepted liability to pay workers' compensation, the applicant had received ongoing workers' compensation from 4 September 1996 until the revocation in 1999.  He had also been paid lump sum compensation for permanent impairment for a 10% loss of efficient use of his shoulder from 14 September 1972.

3. It is Mr. McAuliffe's claim that his current right shoulder problems were materially contributed to by a fall he had while he was in the Australian Army in 1971.  In 1971, during the course of Army activities, he fell while crossing a road and dislocated his shoulder.  The shoulder reduced spontaneously, or very soon after it was dislocated.  Shortly thereafter Mr. McAuliffe left the Army.

4. Between 1972 and 1994, Mr. McAuliffe worked in mining camps, operated drilling rigs, ran his own business, supervised drilling rig operations and other engineering activities in Australia, South East Asia, Sumatra and New Guinea.

5. The applicant also injured his right shoulder in 1972, 1979 and in 1994 in the following circumstances:

   (i)In 1972 he was involved in a motor vehicle accident in which is right shoulder was bumped but did not dislocate.

   (ii)In 1979 he was working in Western Australia, supervising a kitchen.  He was carrying a box of tomatoes when his right shoulder dislocated as a result of the way in which he was carrying the tomatoes.  It reduced soon after the dislocation.

   (iii)In 1994 Mr. McAuliffe was fishing, slipped on some rocks and fell and dislocated his shoulder.  There is a question as to whether he fell on some rocks or whether he fell into water with a sandy bottom.  He originally stated that he fell on rocks but in his evidence to the Tribunal he said that he fell into shallow water with a sandy bottom.

6. The applicant claims that after the 1994 incident his shoulder has given him such continuous pain that he has been unable to work since, and that is the basis for his claim for workers' compensation.

7. The applicant claims that the 1971 incident which occurred whilst he was in the Army made his shoulder vulnerable to the incident which occurred in 1994.  That is, that his current right shoulder problems can be directly traced back to the 1971 incident.

8. In 1997 the applicant had an operation to refix his shoulder, scrape it out and clean it up.  However, the applicant complains that the pain is still there.  He claims that it is the pain which prevents him from using his arm sufficiently well to enable him to work.

9. The medical evidence is to the effect that the 1971 incident would have left him more susceptible to later dislocations, but it is impossible for the doctors to be able to assess to what degree of contribution each of the dislocations has had on his current condition.  It is accepted by the doctors that Mr. McAuliffe now suffers from a rotator cuff syndrome and some arthritis.  Apart from the dislocations, there are other factors which are significant in the development of his current condition, such as wear-and-tear, age, personal constitution and diet.

10. Mr. McAuliffe claims that he has a total incapacity for work.  That proposition is not supported by the orthopaedic surgeons.  They say that Mr. McAuliffe could do work that did not involve heavy lifting with his right arm.  The fact of the matter is, of course, that he ran his own company for many years and was involved in supervisory roles for almost 20 years prior to 1994.

11. The question of Mr. McAuliffe's incapacity for work is further complicated by the fact that he has been treated from the early 1990s for psychological problems. He has also had an alcohol abuse problem for about 25 years.  He has been admitted in recent years to a detoxification unit in Cairns.  This no doubt plays a part in his inability to work.

12. It is my view that although the 1971 incident may have made Mr. McAuliffe more susceptible to later dislocations, the fall in 1994 was a significant incident.  Mr. McAuliffe had been able to work prior to 1994 but he was not able to work afterwards, he says.  Under the circumstances I find that the correct version of the 1994 incident was that given by Mr. McAuliffe in his original statement, namely, that he fell on rocks, and not the version that he gave at the hearing, that he fell into shallow water with a sandy bottom.

13. The 1994  incident was of such severity that it was a new incident which caused the damage about which the applicant now complains, along with the other non-Army related matters mentioned above.  The 1994 incident did not merely cause an aggravation of the 1971 injury.  Consequently, I find that the 1994 incident and the subsequent injury to Mr. McAuliffe's right shoulder were not related to his work in the Australian Army.

14. I further find that Mr. McAuliffe does not have an incapacity to work due to his shoulder.  It is only a 10 per cent incapacity.  I do not accept that this is the reason why he is not working.  His psychological and alcohol problems play a very significant part in his current unemployed situation.

15. I find that the applicant would have had some residual permanent impairment from his 1971 injury and that he has been adequately compensated for that.

16. The Tribunal:

    (i)Sets aside that part of the decision under review relating to permanent impairment and restores the decision that there was a liability for loss of 10 per cent of efficient use of the applicant's shoulder since before 1 December 1988.

    (ii)Affirms the decision that Comcare is not liable for ongoing workers' compensation.

    I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

    Signed:         .....................................................................................
               B. Hitchcock, Secretary

    Date/s of Hearing  27.11.2000, 19, 20.2.2001
    Date of Decision  20 February 2001
    Applicant  Mr. McAuliffe, in person
    Counsel for the Respondent    Mr. Wallace
    Solicitor for the Respondent    Sparke Helmore