McQueen-Thomson and K&S Freighters Pty Ltd (Compensation)
[2016] AATA 510
•20 July 2016
McQueen-Thomson and K&S Freighters Pty Ltd (Compensation) [2016] AATA 510 (20 July 2016)
Division
GENERAL DIVISION
File Number
2014/5365
Re
Andrew McQueen-Thomson
APPLICANT
And
K&S Freighters Pty Ltd
RESPONDENT
DECISION
Tribunal Dr Damien Cremean, Senior Member Date 20 July 2016 Place Melbourne The Tribunal sets aside the decision under review and in substitution decides that:
(a)The Applicant suffered incapacity as a result of an injury to the left shoulder, the subject of a claim for compensation dated 5 June 2014, which arose out of or in the course of employment, or to which employment with K&S Freighters Pty Ltd contributed to a significant degree. This gives rise to entitlement to compensation pursuant to the Safety Rehabilitation and Compensation Act 1988 (Cth) (the ‘Act’);
(b)The matter is further remitted to the Respondent to calculate the Applicant’s specific entitlements to compensation in respect of:
(i)The costs of all medical and related treatment expenses incurred in respect of the injury pursuant to section 16 of the Act; and
(ii)Weekly payments of compensation in respect of incapacity for work pursuant to section 19 of the Act.
(c)The Respondent is ordered to pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the Act.
.....................................[sgd]...................................
Dr Damien Cremean, Senior Member
COMPENSATION – left shoulder injury – injury or injury (other than a disease) – disease – ailment or aggravation of an ailment – meaning of aggravation – meaning of significant – whether false and wilful statement – decision under review set aside.
Legislation
Safety Rehabilitation and Compensation Act 1988 (Cth) sections 4(1), 5A, 5B, 7(7), 14, 53, 67
Cases
Comcare v Reardon (2015) 148 ALD 356
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Jones v Dunkel (1959) 101 CLR 298
Military Rehabilitation and Compensation Commission v May (2016) 90 ALJR 626
Re Muscat and Australian Postal Corporation [2016] AATA 13
Re Wilson and Comcare [1996] AATA 862
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Tippett v Australian Postal Corporation (1998) 27 AAR 40
Wiegand v Comcare Australia [2002] FCA 1464REASONS FOR DECISION
Dr Damien Cremean, Senior Member
20 July 2016
This is an application for review of a decision (the ‘reviewable decision’) of the Respondent made on 9 September 2014.
The reviewable decision affirms a determination made on 30 July 2014 that the Respondent is not liable to pay compensation to the Applicant under section 14 of the Safety Rehabilitation and Compensation Act 1988 (Cth) (the ‘Act’) in respect of the Applicant’s left shoulder injury.
The matter was heard by the Tribunal between 8 February 2016 and 10 February 2016. At the hearing, the Applicant was represented by Mr Mark Carey of Counsel, instructed by Maurice Blackburn. The Respondent was represented by Mr Michael Snell of Counsel, instructed by Clarke Legal.
The Applicant, Mr McQueen-Thomson, gave sworn evidence. Medical evidence was called on his behalf. The Respondent called only medical evidence.
In what follows, I provide an outline of the Applicant’s evidence and that of the witnesses for both parties.
Outline of Evidence
Applicant
The Applicant, Mr McQueen-Thomson, was born on 17 July 1953 and was aged 62 at the date of hearing. He is now aged 63.
The Applicant commenced work with K&S Freighters Pty Ltd in 2005. The Applicant had previously worked for Douglas Transport Management before that business was taken over by the Respondent. The Applicant was dismissed from his employment with the Respondent on 29 July 2014 due to a driving incident that had taken place in the preceding week.
The Applicant graduated from School at Xavier College. Following this, the Applicant commenced an apprenticeship in motor mechanics. Shortly after commencing his apprenticeship, the Applicant enlisted in the Australian Army. However, due to a back injury, for which he underwent surgery, he was discharged from the Army in around February 1974.
Following his discharge from the Army, the Applicant completed his High School Certificate. The Applicant did casual work in various locations, mostly involving driving. He recalls driving concrete trucks and buses and doing some factory work.
In 1982, the Applicant undertook studies in applied biology at the Gippsland Institute of Advanced Education. He did not complete these studies, having in 1985 returned home to live with and care for his mother after his father died.
After returning home, the Applicant again took up casual driving. He can recall working on buses and taxis as well as doing general freight delivery driving semi-trailers and rigid trucks.
In around 2005, he took up steady employment with the Respondent working full time. This work involved doing at least 55 hours per week including overtime. He was mainly in mini bulk tank work. This mostly involved the transportation of liquefied refrigerated carbon dioxide (colloquially referred to as dry ice). This is a product used in adjusting the pH levels of swimming pools, food processing and packaging and in engineering as a mix for other gases for welding purposes. It is also used for various purposes in the hotel and catering industries.
The Applicant worked mostly on 4-tonne tankers but would work sometimes on 8-tonne tankers. The liquefied product on board the vehicle would be unloaded via hose and pumped into tanks at the various delivery points. The hose connected either at chest height or at shoulder height depending on the vessel concerned.
Lifting the hoses imposed a deal of physical strain on the Applicant as they were quite heavy. A typical vessel could take 20-25 minutes to fill. At some locations there could be as many as four vessels to fill. At the end of each vessel fill, the hoses would be disconnected and then reeled in. Mr McQueen-Thomson would often do as many as eight deliveries in the metropolitan area and a further four in a country area per day.
On 17 December 2012, the Applicant suffered an injury to his right shoulder while delivering liquefied carbon dioxide to a client in Tullamarine. He was helping a forklift operator offload a container which held about 300 kg of product and was on castors. While standing on the side of his truck, the Applicant lost his footing due to the wet and slippery conditions and fell onto the concrete.
The Applicant managed to finish his deliveries for that day. He experienced pain throughout the remainder of the day. At the end of his shift he visited the company doctor who recommended he take several days off of work. The Applicant followed this recommendation.
When the Applicant returned to work the pain in his right shoulder persisted. He continued to work for the rest of December, through January and into February 2013.
In the course of February, however, the pain became too great for the Applicant to continue working. He visited his general practitioner at the Coolaroo clinic, who recommended he undergo an ultrasound. The Applicant underwent an ultrasound on 27 February 2013.
Following the results of the ultrasound, the Applicant was referred to Ms Anita Boecksteiner, an orthopaedic surgeon. Ms Boecksteiner advised the Applicant that he required surgery. The Applicant recalls her describing him as having a torn rotator cuff in the right shoulder.
At about this time the Applicant made a claim for compensation from the Respondent for his right shoulder injury, which the Respondent accepted.
The Applicant underwent surgery on 2 May 2013. He returned to work with the Respondent on light duties in early July, despite still being in pain.
On the suggestion of his surgeon, the Applicant then tried doing full time driving duties. He drove trucks making refrigerated carbon dioxide deliveries first, and then was put back on mini bulk tanker duties. He said he found the hoses very heavy to lift and he would feel pain in his right shoulder when using them, but he kept going. He would mainly rely on his left shoulder to take most of the weight and to do the bulk of the lifting and dragging. Previously he had done this using both arms.
In about early May 2014, however, the Applicant developed left shoulder pain while pulling himself into the cabin of a truck. He said it was a sharp tooth-ache like pain. The pain would stay for a couple of minutes and then ease. He would get the pain whenever he would do left shoulder lifting or get into the cabin of a truck.
The Applicant recalled in particular suffering a sharp left shoulder pain when he was tightening a hose with a shifter during a gas delivery later in that month. He said the pain did not fully ease, but fluctuated between the initial sharp pain and a dull ache.
In the week leading up to 26 May 2014, the Applicant reported the pain to his work. He said he was unclear about how to report his injury because there was no specific event like a fall or an accident which had brought the pain on.
In any event, the Applicant lodged a claim for compensation on 5 June 2014, which was denied by the Respondent on 30 June 2014.
In question 13 on that claim form the Applicant circled No when asked: Have you ever had a similar symptom, injury or illness before –work related or otherwise? The claim form then directed him to go to question 16, but he went instead to questions 14 and 15.
Question 14 then asked: Have you ever received medical treatment for a similar injury or illness? The Applicant circled Yes. He gave as part of the details: R. Shoulder-injury at work.
The Applicant circled Yes in answer to question 15 when asked: Have you ever claimed workers’ compensation for a similar injury or illness? He gave as part of the details: R.S-injury at work.
The Applicant says he kept working on full duties with the Respondent until he was dismissed at the end of July 2014. He says he is still in pain and has not worked since that time because he cannot drive trucks. This is due to his left shoulder being too painful. He does, however, still drive a car. On occasion he also suffers pain in his right shoulder.
Medical Experts
A number of medical practitioners gave evidence. They include: Dr Mui Kak Lim, general practitioner; Dr Joseph Slesenger, specialist occupational physician; Mr Michael Khan, orthopaedic surgeon; Dr Anthony Kam, consultant radiologist; and Dr Gerard Powell, consultant orthopaedic surgeon.
Dr Mui Kak Lim, general practitioner
Dr Lim was called by the Respondent and gave evidence in person. Dr Lim is in general practice at the Coolaroo clinic. He indicated that in terms of his expertise, his knowledge was limited to his clinical notes. He said he was not equipped to give opinions about the causes of or relationships between orthopaedic injuries or conditions and employment. He also said he was not capable, in terms of radiology, to make comparisons between radiological findings.
Upon questioning, Dr Lim agreed his notes recorded a consultation on 29 June 2010 for 20 minutes and 41 seconds where he made a finding of Poor abduction but no impingement.
Dr Lim said on that occasion he considered the Applicant’s supraspinatus was poor in the range of abduction and he made a differential diagnosis of a rotator cuff injury. The signs on examination of the Applicant’s shoulder were of sufficient concern to warrant further examination and imaging. Imaging confirmed a full thickness tear in the supraspinatus.
A note on 17 July 2010 recorded that the Applicant attended the clinic for referral to an orthopaedic surgeon.
Dr Joseph Slesenger, specialist occupational physician
Dr Slesenger is a specialist occupational physician and gave evidence in person. The Applicant had seen Dr Slesenger since 2009, and at the request of the Applicant’s legal representatives produced a report on 13 December 2015. At the hearing, Dr Slesenger confirmed the contents of his report to be true and correct.
In his report Dr Slesenger said that the Applicant sustained a left shoulder supraspinatus tear and AC joint arthritis. He said there is also evidence of adhesive capsulitis.
In relation to impairment of the Applicant’s right shoulder, Dr Slesenger said that the Applicant has osteoarthritis at the acromioclavicular joint, rotator cuff tear and bursitis but that he has responded reasonably well to surgical intervention.
Dr Slesenger expresses the view that the Applicant’s left shoulder impairment dates back to 2006. He says this initially caused a minor impairment. He notes scan findings documented in 2012 in support of this conclusion.
Dr Slesenger says that in his view, the Applicant’s activities in 2012 aggravated a pre-existing left shoulder impairment. Dr Slesenger says the Applicant’s right shoulder impairment was secondary to the injury in December 2012 which in turn further aggravated his pre-existing left shoulder impairment.
Dr Slesenger states in his report that he regards the Applicant’s employment with the Respondent as a significant contributory factor to his left shoulder impairment which he says will require surgical intervention. He says the Applicant’s occupational exposures at K&S Freighters are a plausible cause of his impairment. In support of this, he notes the repetitive nature of the tasks, the over-shoulder reaching and the lifting of weights up to 25-30 kg.
Dr Slesenger says he is pessimistic that the Applicant will achieve a full resolution of his left shoulder impairment even with surgical intervention.
Mr Michael Khan, orthopaedic surgeon
Mr Khan gave affirmed evidence in person. Mr Khan examined the Applicant on 15 April 2015 at the request of the Applicant’s legal representatives. Mr Khan produced two reports dated 4 June 2015 and 1 December 2015. At the hearing, Mr Khan confirmed the contents of these reports as true and correct.
In the first report, Mr Khan notes that all movements in the Applicant’s left shoulder were limited at examination on 15 April 2015. He notes that despite surgery, the Applicant still experiences symptoms in his right shoulder – in other words, he has not fully recovered.
His opinion is that the Applicant has a left shoulder condition contributed to by his employment with the Respondent. He records that pre-existing degenerative changes in the left acromio-clavicular joint and glenohumeral joint gradually flared–up when [the Applicant] eventually returned to work after making a recovery from his right shoulder injury.
Mr Khan indicates his view that the Applicant suffered the flare-up of the conditions in his left shoulder by mainly using his left arm in work activities upon his return to work. The Applicant was repetitively elevating his left arm carrying the large bulk of the hose on his shoulders and during his work using the metal hose from the gas tanker to the customer’s vessels. This resulted in the Applicant developing severe tendinopathy with flare-up of degenerative arthritis in the acromio–clavicular joint of the shoulder.
Mr Khan concluded that the Applicant has developed severe impingement of the supraspinatus tendon with a tear and flare-up of degenerative tendinopathy in the supraspinatus, infraspinatus and the biceps tendons, as well as flare-up of pre-existing asymptomatic acromio-clavicular joint degeneration.
Mr Khan says he therefore considers that the Applicant’s employment over a period of time following his return to work after his right shoulder operation and particularly on or about 26 May 2014 has contributed to his present condition affecting his left shoulder.
In his second report, Mr Khan provides an up to date review of his opinion in light of materials received by him, including two reports of Dr Powell and x-rays of the Applicant’s left shoulder taken 2 July 2010.
Mr Khan’s opinion is that the conditions in the Applicant’s left shoulder, being pre-existing degenerative arthritis in the acromo–clavicular joint and a large spur in the undersurface of the lateral end of the acromion, were further aggravated following the treatment and surgery involved in the condition of his right shoulder.
The Applicant’s work with the Respondent had, in Mr Khan’s view, further aggravated the condition of his left shoulder.
Dr Gerard Powell, consultant orthopaedic surgeon
Dr Powell, consultant orthopaedic surgeon, gave evidence in person. Dr Powell examined the Applicant on 27 April 2015 at the request of the Respondent, and produced two reports of 27 April 2015 and 6 July 2015. At the hearing, Dr Powell confirmed the contents of these reports as true and correct.
In his earlier report, Dr Powell says that the Applicant has a full thickness tear of the left supraspinatus and evidence of AC joint arthritis in the left shoulder. He says there is a mild element of adhesive capsulitis evident, reflected by [the Applicant’s] loss of internal rotation in the glenohumeral joint.
Dr Powell says that it is his view that the Applicant’s employment with K&S Freighters has played a significant role in the development of the pathologies in both shoulder conditions. He says it is his view that the repetitive overhead use of the arms in [the Applicant’s] work as a driver of refrigerated trucks has contributed significantly to the development of bilateral osteoarthritis of the AC joints.
Dr Powell says a secondary subacromial spur formation related to the arthritic AC joint has contributed to a chronic impingement situation in the left shoulder with likely tendinopathy of the supraspinatus.
Dr Powell says that the Applicant developed a full thickness tear of the left supraspinatus in about May 2014 while tightening a connector with a shifter. Dr Powell says the mechanism of injury is consistent with the diagnosis and, in his view, the full thickness tear of the supraspinatus is work related.
Earlier in his report Dr Powell says there is no pre-existing history of symptoms relating to the left or right shoulders other than for niggles not requiring specific treatment. He says the Applicant did indicate that he would get niggles in the left shoulder even prior to the injury to the right shoulder of December 2012 but these had not required active treatment.
Contentions and submissions
The Applicant contends there is sufficient evidence for the Tribunal to set aside the reviewable decision and to substitute a decision that the Applicant has suffered incapacity as a result of compensable injury, within the meaning of the Act, to his left shoulder.
The Applicant asks that the Respondent be required to determine the Applicant’s specific entitlements to compensation. The Applicant further asks for the Respondent to be ordered to pay the Applicant’s costs and disbursements pursuant to section 67 of the Act.
The Respondent contends that the Tribunal should make a decision affirming the reviewable decision. In particular, the Respondent submits that the Applicant is precluded from receiving compensation by section 7(7) of the Act.
Consideration
Relevant Legislation
Pursuant to section 14 of the Act, the Respondent is liable to pay compensation in accordance with the Act in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 4(9) of the Act defines an incapacity for work as an incapacity for work suffered by an employee as a result of an injury. Sections 4(9)(a) and (b) define incapacity as an incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred.
An injury is defined in section 5A(1) of the Act as a disease suffered by an employee or an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of or in the course of such employee’s employment.
A disease is defined in section 5B(1) of the Act as an ailment suffered by an employee or an aggravation of such an ailment, that was contributed to, to a significant degree, by the employee’s employment. By section 4(1) of the Act aggravation of an ailment includes an acceleration or recurrence.
An ailment is defined in section 4(1) of the Act as meaning any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The term significant degree is defined in section 5B(3) of the Act as meaning a degree that is substantially more than material. Matters which may be taken into account in determining this question of degree are set out in section 5B(2) of the Act. They include, amongst others, the duration of an employee’s employment and the nature of, and particular tasks involved in, that employment. Section 5B(2) allows other matters to be taken into account, and places no limit on the scope of these.
Section 7 of the Act includes further provisions in relation to diseases. Relevantly to this case, section 7(7) of the Act precludes compensation in certain circumstances, providing that
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
I should say at the outset that I am satisfied, on the balance of probabilities, that the Applicant has suffered an injury to his left shoulder and that this has resulted in his incapacity for work or impairment.
As I see the matter, the question of the existence of an injury and subsequent incapacity was not in issue. It was not suggested that the Applicant was fabricating his evidence. Nor was it suggested that the Applicant was exaggerating or overstating the nature of his injury. Indeed, the Applicant was described as stoical by one witness.
There are, however, a number of ways of characterising this condition within the terms of the Act. It could be characterised as an injury which is an injury (other than a disease). It could also be characterised as an injury which is a disease. If a disease, it could be an ailment or an aggravation of an ailment.
However, even if the Applicant’s left shoulder condition would otherwise be compensable under the Act on whatever basis, it could still fail to be compensable if the provision in section 7(7) of the Act applies so as to exclude him.
Connection to Employment
The Applicant has submitted that the evidence in the case affords a basis for a finding that the Applicant suffered an injury (other than a disease), also referred to as injury simpliciter or plain injury, arising out of his employment.
If the Applicant did suffer an injury simpliciter, then the provision in section 7(7) does not apply because it relates to disease or aggravation of a disease.
The Applicant relies on the incident in late May 2014 when he was delivering gas to a municipal swimming pool and experienced a sharp pain in his left shoulder.
The Tribunal notes, however, the Applicant’s own evidence to the effect that he was unclear about how to deal with the incident in terms of reporting it or being required to report it because there was no specific event, such as a fall or an accident in the ordinary sense. The Tribunal further notes that the Applicant did not immediately visit his doctor, which one would expect to happen if a specific injurious event had occurred. These considerations do not support the injury simpliciter analysis.
The Tribunal also notes that at another time in early May 2014, the Applicant recalled developing left shoulder pain while pulling himself into the cab of a truck which he described as a sharp tooth-ache like pain.
If the incident in late May 2014 could be an injury simpliciter occasion, so too plausibly could be the incident in early May 2014. The same characterisation issues seem to arise also with respect to the early May incident, in that nothing was reported and no specific event, such as a fall, took place.
In relation to both May incidents, I consider it significant that the Applicant did not conduct himself in a way which would suggest an injury simpliciter had occurred.
I am not reasonably satisfied, therefore, that either the late May or the early May incident was the occasion of an injury simpliciter. The evidence seems to suggest a continuing issue in the left shoulder rather than a specific injurious hurt event.
Both incidents in May 2014 occur against a background of a number of other events including right shoulder surgery some 12 months before. Following this surgery the Applicant returned to work but continued to experience pain in his right shoulder, especially when lifting hoses. As a result, the Applicant said he was using his left shoulder to do the bulk of the lifting and dragging. The Applicant had previously done this using both arms. Using his left arm involved, of course, left shoulder movement.
The Applicant was using his left arm to compensate for a reduced ability to use his right arm. This was due to the right shoulder pain he was experiencing following the shoulder surgery and return to work.
This overuse, as I would describe it, in turn caused a flare up, to use Mr Khan’s expression, of a pre-existing condition in the Applicant’s left shoulder. This was the evidence of Mr Khan. Mr Khan impressed the Tribunal as an orthopaedic surgeon of great experience and ability, whose evidence I should accept.
I accordingly find on the basis of Mr Khan’s evidence that in May 2014 the Applicant had pre-existing degenerative changes in the left acromio-clavicular joint and glenohumeral joint. These flared up when he eventually returned to work following right shoulder surgery. This is in accord also with the account given by the Applicant in his evidence.
As has been noted, Mr Khan is of the view that the Applicant has developed severe impingement of the supraspinatus tendon with a tear and flare-up of degenerative tendinopathy in the supraspinatus, infraspinatus and the biceps tendons as well as flare-up of pre-existing asymptomatic acromio-clavicular joint degeneration.
Dr Slesenger, in his report of 13 December 2015, says the Applicant sustained a left shoulder supraspinatus tear and AC joint arthritis and that there is evidence of adhesive capsulitis. He dates the Applicant’s left shoulder impairment as going back to 2006.
Dr Slesenger’s view is, in substance, the same view as that of Dr Powell. In his report of 27 April 2015, Dr Powell says that the Applicant has a full thickness tear of the supraspinatus and evidence of AC joint arthritis. He says there is an element of adhesive capsulitis evident. He also says, though, in his view there is no pre-existing history of symptoms relating to the left shoulder other than for niggles not requiring specific treatment.
I am satisfied that, on the evidence, by the end of May 2014 the Applicant had a left shoulder condition best described in the terms set out by Mr Khan. I further conclude that this condition was affected by several incidents occurring in that month. It had, however, already been affected by the Applicant’s overuse of his left arm, making up for loss of use in his right arm after shoulder surgery the year before.
The conditions described by the medical witnesses, in my view, satisfy the definition of an injury as a disease and, on this basis, the Applicant suffered either an ailment or an aggravation of an ailment which, on whichever basis, is compensable if the provision in section 7(7) of the Act does not exclude his claim.
As regards an aggravation of an ailment, I note that I have said previously that I see the word aggravation as synonymous with exacerbation (Re Muscat and Australian Postal Corporation [2016] AATA 13 at [47]). In Wiegand v Comcare Australia [2002] FCA 1464 at [21] von Doussa J said I do not think there is any material distinction to be drawn between an exacerbation of an ailment and an aggravation of an ailment. In the context of that case his Honour said both expressions convey the same notion, namely that the [depression, in that case] became worse.
A relevant question to ask in respect of an aggravation of an ailment is whether an applicant’s condition became worse or was made worse by reason of employment (Comcare v Reardon (2015) 148 ALD 356).
This distinction is discussed in many cases, including in remarks of Kitto J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 634:
As applied to a disease [the word exacerbation] … is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development. "A temporary increase in the violence of the symptoms of a disease" is the medical sense of the word according to Funk and Wagnall's Standard English Dictionary. ... Moffitt J was right, I think, in saying: "There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms. The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism". Accordingly if salt be applied to an open wound, making the wound no worse but causing it to smart as it had not smarted before, it is proper to say that there is an exacerbation of the wound.
Further analysis of the distinction was made by Windeyer J, who noted at 640:
The question that each [word] poses is, it seems to me, whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient.
As is also indicated by their Honours’ remarks in that case, an aggravation of a disease may take the form of pain. Finkelstein J said in Tippett v Australian Postal Corporation (1998) 27 AAR 40 at 44 [p]ain is the most common symptom of an injury. His Honour also said that if the pain arising from an underlying condition is aggravated, that is increased or intensified, as a result of an employee’s employment then the employee will have suffered a compensable injury.
Medical evidence in this case, on one analysis, supports a view that the Applicant’s left shoulder condition qualifies as an ailment arising out of or in the course of his employment. This ailment is a physical ailment defect or disorder, whether of sudden or gradual development.
On another analysis, however, the evidence supports a view that the Applicant suffered an aggravation of an ailment, namely an aggravation by way of an acceleration or recurrence of a pre-existing condition in the left shoulder also arising out of or in the course of his employment.
Despite the ambiguity, the medical evidence in the case, on whichever analysis, supports a finding that the Applicant’s left shoulder condition falls within the provisions of the Act as compensable as a disease, providing section 7(7) of the Act does not operate to exclude the Applicant from compensation.
The disease I have identified has led to the Applicant’s incapacity, in that he cannot do his usual work, leaving aside the question of his later dismissal. I accept his evidence that he cannot drive trucks, which has been almost his lifelong employment pursuit.
For these reasons, the Tribunal concludes there is an injury within the meaning of the Act causing incapacity. The fact that this left shoulder condition arose out of or in the course of his employment, either as an ailment or as an aggravation of an ailment, seems plain beyond doubt on the evidence.
Reference need only be made to the nature of the Applicant’s duties in unloading product from tankers via hose. The hoses were heavy to lift and imposed a deal of physical strain on the Applicant. I expect the strain in lifting a heavy hose and placing it into position would be considerable. The Applicant could be doing this for as many as 10 or more deliveries a day. He would be using both hands and both shoulders before injuring his right shoulder and undergoing surgery.
The Applicant’s left shoulder involvement is especially evident after his initial surgery, given his diminished right arm and shoulder capacity. Returning to work after the surgery, the Applicant relied on his left shoulder to take most of the weight and to do most lifting and dragging. This then led to left shoulder pain experienced in the two incidents in May 2014.
The work undertaken by the Applicant for the Respondent was hard, heavy and repetitive. I am satisfied that the Applicant’s left shoulder condition was caused by his work for the Respondent and arose out of it in this way.
In particular, I refer to and rely upon the evidence of Mr Khan to make this finding. His evidence is that the Applicant’s employment over a period of time following his return to work after his right shoulder operation and particularly on or about 26 May 2014 has contributed to his present condition affecting his left shoulder. It is his evidence that following his right shoulder surgery, the Applicant’s work with the Respondent further aggravated the condition of his left shoulder.
The evidence of Dr Slesenger is broadly similar to that of Mr Khan. Dr Powell’s evidence is also similar, with Dr Powell saying that in his view the Applicant, in the incident in late May 2014, developed a full thickness tear of the left supraspinatus.
Question of Significant Degree
I am satisfied based on the evidence, that the Tribunal should find that the contribution of the Applicant’s work to his left shoulder condition was significant. This is to say, I am satisfied that the Applicant’s work with the Respondent contributed to his left shoulder condition to a degree that was substantially more than material.
The medical evidence in the case is, in my view plainly to this effect. Dr Slesenger is specific in saying that the Applicant’s employment with the Respondent was a significant contributory factor to his left shoulder impairment. Dr Powell says that the Applicant’s employment with the Respondent has played a significant role in the development of the pathologies in both his shoulder conditions.
There is not, in my view any evidence in the case which would cause me to doubt that the degree of contribution was significant.
I am satisfied also on the evidence that the Applicant’s left shoulder condition did not become worse by reason of the Applicant’s employment but was plainly made worse by it by the very nature of the activities involved in his work in the lifting, heaving and dragging of hoses.
I refer in particular to the two incidents in early and late May 2014, one where the Applicant was pulling himself into the cabin of a truck and the other when he was tightening a hose with a shifter.
I should add there is nothing in the decision in Military Rehabilitation and CompensationCommission v May (2016) 90 ALJR 626, delivered subsequently to my hearing this matter which would alter my views on any point relevant to this case. Both parties were permitted to make written submissions as to the impact of the High Court’s decision if they saw it necessary to do so before the decision was reserved. I received nothing in submissions by either party concerning the effects of that decision and whether it has or may have any application to this case.
Whether the Applicant made a Wilful and False Representation
In my view, based on the conclusions reached above, the Applicant must succeed unless he falls within the exclusion provision in section 7(7) of the Act for making a wilful and false representation.
As noted above, section 7(7) of the Act provides :
A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
The Respondent’s argument based on section 7(7) focuses on the answer given by the Applicant to question 13 on the claim form dated 5 June 2014. The Applicant had circled No in answer to the question whether he had ever had similar symptoms, injury or illness.
The Applicant conceded in evidence that this answer was not correct based on his history in 2010, when he developed left shoulder symptoms and had had them investigated by ultrasound which disclosed a full thickness tear of the supraspinatus.
The Applicant’s evidence was that when completing this part of the claim form he received assistance from Ms Sandra Mari, an employee of the Respondent concerned with injury management. He said he was confused and had in mind his right shoulder injury, which he had been discussing with Ms Mari.
Ms Mari was available to be called to give evidence on this point, but was not called. The Respondent, in my view oddly, says there was no need to call her. It would have been helpful to hear from Ms Mari who, if she recalled the matter, could be expected to shed some light on the matter. I do not draw any adverse inference as I might from this circumstance based on the decision in Jones v Dunkel (1959) 101 CLR 298, although I was invited to do so.
The consequences of finding a case made out under section 7(7) are serious indeed. Bearing that in mind, I consider a case should not be held to be made out under the section unless it is clearly established (Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555).
The Applicant has an explanation for the answer he gave which, if accepted, is consistent with carelessness or confusion on his part. It does not show the making of a wilful and false representation.
I observed the Applicant carefully when giving his evidence and I am not satisfied I should reject his explanation as untrue, or find that he is lying. In my view, the Applicant was telling the truth, when he said he was confused when he filled out his claim form.
It is clear that the expression in section 7(7) is wilful and false, not wilful or false (Re Wilson and Comcare [1996] AATA 862 at [103]). The Applicant’s answer No to question 13 is wrong, as conceded by him, but I am not satisfied that by merely being wrong, because of confusion, his answer was wilfully false.
I am satisfied with the explanation given by the Applicant, which I accept, and I reject the Respondent’s submission that his answer was wilfully false.
I consider also that the Applicant’s confusion is evident by him not proceeding to question 16 but answering questions 14 and 15, which he answered truthfully. I am unable to see that the Applicant would stand to gain anything out of a deliberately false answer to question 13. There is no the motivation for him to make a wilfully false answer.
In any event, I am not satisfied that, in answering No to question 13, the Applicant was making any representation for purposes connected with his employment. As I see it, his purposes in reality had nothing to do with his employment, except in a necessary factual sense, but were connected with his injury or illness.
Conclusion
For the reasons given, I am satisfied that the Applicant’s injury is a compensable one under the Act and that he is entitled to compensation accordingly.
Accordingly, the decision under review must be set aside. In substitution, I decide that:
(a)The Applicant did suffer incapacity as a result of an injury to the left shoulder, the subject of a claim for compensation dated 5 June 2014) which arose out of or in the course of employment, or to which employment with K&S Freighters Pty Ltd contributed to a significant degree and which gives rise to entitlement to compensation pursuant to the Act.
(b)The matter is further remitted to the Respondent to calculate the Applicant’s specific entitlements to compensation in respect of:
(i)the costs of all medical and related treatment expenses incurred in respect of the injury, pursuant to section 16 of the Act; and
(ii)weekly payments of compensation in respect of incapacity for work, pursuant to section 19 of the Act.
(c)The Respondent must pay the Applicant’s costs and disbursements in respect of these proceedings pursuant to section 67 of the Act.
I certify that the preceding 124 (one-hundred-and-twenty-four) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member
.....................................[sgd]..................................
Associate
Dated 20 July 2016
Date of hearing 8 February 2016 – 10 February 2016 Counsel for the Applicant Mr Mark Carey Solicitors for the Applicant Maurice Blackburn Counsel for the Respondent Mr Michael Snell Solicitors for the Respondent Clarke Legal
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