Meiklejohn and Comcare
[2008] AATA 334
•24 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 334
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2006/74
GENERAL ADMINISTRATIVE DIVISION ) Re BARBARA MEIKLEJOHN Applicant
And
COMCARE
Respondent
DECISION
Tribunal J.W. Constance, Senior Member
Dr M.D Miller AO, Member
Date 24 April 2008
Place Canberra
Decision
1. The reviewable decision of Comcare made 29 March 2006 “to revoke liability for ‘sprain of shoulder and upper arm (bilateral)’” is affirmed.
.................[signed].............................
J.W. Constance, Senior Member
CATCHWORDS
COMPENSATION – review of decision to cease liability for an accepted condition – bilateral shoulder conditions – whether conditions arose out of, or in course of, employment – whether damage caused by degeneration or trauma suffered in accident – medical evidence shows, on balance of probabilities, that damage not caused by accident – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 14, 62
Administrative Appeals Tribunal Act 1975 (Cth) s 37Commonwealth of Australia v Borg (1994) 20 AAR 299
REASONS FOR DECISION
INTRODUCTION
2. Ms Meiklejohn was seriously injured in a motor vehicle accident in 2001. Comcare accepted liability to compensate her for several injuries she suffered.
3. In 2005 liability was extended to cover “sprain of shoulder & upper arm (bilateral)”, but in 2006 this acceptance of liability was revoked. Ms Meiklejohn is seeking a review of the 2006 decision.
4. For the reasons which follow we have decided that the decision under review should be affirmed.
EVIDENCE AND FINDINGS OF FACT
5. Unless otherwise stated the following findings of fact are made on the basis of the evidence of Ms Meiklejohn. We are satisfied of the facts found on the balance of probabilities.
6. Ms Meiklejohn commenced employment with the Department of Foreign Affairs and Trade in 1989. On 28 February 2001 she was injured when the vehicle she was driving hit a concrete pillar in a parking area. At the time she was driving in the course of her employment.
7. Ms Meiklejohn says that she was travelling “very, very fast” [1] when she hit the pillar. Although she says that she was told by a police officer who attended the accident that she was travelling at over 60 kph we are not satisfied that this is an accurate estimate of the speed involved. The police officer did not give evidence and we do not know the basis of his opinion. We are unable to make a finding as to the speed of the vehicle, other than that the force of the impact was sufficient to activate the airbag,
[1] Transcript 27.9.07 p-12.
8. Ms Meiklejohn was seriously injured. Her left forearm was fractured, her right index finger was dislocated and she suffered facial injuries. She immediately experienced pain in her upper body. She was taken by ambulance to hospital and was treated as an inpatient for two days.
9. Ms Meiklejohn gave evidence that ever since the accident she has suffered “terrible pain” in both shoulders and that this pain is continuing.[2] She indicated to us that the pain was in both sides of her neck and across each shoulder.[3] On a number of occasions she described the pain as being in her upper back as well as her neck and shoulders. When asked by her Counsel how the condition of her arms and shoulders limited her activities at the time she gave evidence (September 2007), she replied that “this incredible pain” prevents her doing anything that involves backwards and forwards movement with her arms, doing housework and gardening, freestyle swimming and playing tennis.[4] She described the pain as being like “dragging barbed wire over raw flesh.” [5]
[2] Transcript 27.9.07 p-65.
[3] Transcript 27.9.07 p-14.
[4] Transcript 27.9.07 p-24.
[5] Transcript 27.9.07 p-22.
10. In the year prior to the accident Ms Meiklejohn did not suffer any pain in her shoulders, neck or arms. She swam at least once per week, played tennis from time to time and went speed walking. She did not experience any difficulty in these activities.
11. Ms Meiklejohn had injured herself in two separate incidents prior to 28 February 2001. In 1989 she was involved in a motor vehicle accident in which she suffered a whiplash type injury to her neck. She was unable to say how long the symptoms of this injury lasted but she says that by April 1995 she was free of any pain arising from this accident.
12. In 1999 she slipped and fell whilst walking. She suffered some bruising. The symptoms of this injury continued for about six weeks.[6]
[6] Transcript 27.09.07 p-10.
13. In February 2003 Ms Meiklejohn was involved in another motor vehicle accident when the vehicle she was driving was the middle car in a three vehicle rear end collision. She injured her sternum and lower back. She said that after this accident the condition of her shoulders was the same as after the February 2001 accident.
14. In September 2005 ultrasounds were carried out on both Ms Meiklejohn’s shoulders. They disclosed a full thickness tear of the supraspinatus tendon on each side.[7] These tears were confirmed by MR arthrograms carried out in November 2005. The reports of the latter procedures concluded that in the left shoulder there was a “full thickness tear extending across the anterior half of the SST [supraspinatus tendon] insertion, with partial thickness tear across the remainder of its insertion and into IST [ infraspinatus tendon ] ”. In regard to the right shoulder the conclusion was that there was “essentially complete avulsion of SST, with muscular fatty atrophy. Extensive partial thickness tear of IST. Small tear in subscapularis superolaterally with mild medial subluxation of LHBT [longhead of the biceps tendon]. Superior and inferior labral tears.” [8]
[7] Ex. A1, document T81.
[8] Ex. A1, documents T94 and T95.
LEGISLATION
15. Subsection 14(1) of the Safety, Rehabilitation and Compensation Act 1988 provides:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
16. The definition of “injury” in subsection 4(1) of the Act relevantly includes:
Injury means … an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment.
HISTORY OF THE CLAIM
17. On 7 March 2001 Ms Meiklejohn lodged a claim for compensation for the injuries suffered in the accident.[9] The injury in respect of which the claim was made was “broken forearm in two places on left arm and dislocated index finger on right hand.”
[9] Ex.R3.
18. By letter of 5 September 2005 [10] Comcare accepted liability for “sprain of shoulder & upper arm (bilateral)” which it described as a “secondary condition” to the already accepted injuries. The description of the accepted secondary condition was that given by Comcare. Prior to accepting liability Comcare had received correspondence from Dr Thew in which she described the injury as “musculo ligament strain of … shoulders as a result of the whiplash injury”
[10] Ex.R11.
19. On 29 March 2006 Comcare reconsidered the decision of 5 September 2005. The reconsideration was carried out of Comcare’s own motion in exercise of a power given by section 62 of the Safety, Rehabilitation and Compensation Act 1988. The decision on reconsideration was to revoke the acceptance of liability for “sprain of shoulder and upper arm (bilateral).” It is this reconsideration decision which Ms Meiklejohn is seeking to have reviewed by the Tribunal.
20. Ms Meiklejohn is claiming that in the accident she suffered tears to the rotator cuff of each shoulder and that on this basis the decision revoking liability for her shoulder conditions should be set aside. Although this was not the diagnosis of her condition when injuries to her shoulders were accepted as being compensable, by the time the decision under review was made Comcare had before it the reports of the various images which were carried out in late 2005. These reports clearly set out the nature of the damage to Ms Meiklejohn’s rotator cuffs.
21. At the hearing neither party raised an issue as to the power of the Tribunal to substitute a decision that Comcare was liable to compensate Ms Meiklejohn for the injuries to her rotator cuffs if it is found that the accident on 28 February 2001 was the cause of these injuries. The nature of the injuries now being claimed was clear to the Independent Review Officer when she made the reviewable decision of 29 March 2006. We are satisfied therefore that we have the power to substitute such a decision if we are otherwise satisfied that it would be the correct decision.
ISSUE FOR DETERMINATION
22. The following issue arises for determination - did Ms Meiklejohn’s bilateral shoulder conditions involving damage to the rotator cuffs arise out of, or in the course of, her employment? On the facts found and the arguments presented by the parties this raises the question whether these conditions were caused by the accident in which she was involved on 28 February 2001.
23. As this is a review of a decision to cease liability for an accepted condition we have considered whether the issue for determination should be phrased to reflect the situation that in such circumstances Comcare has a persuasive burden to show that one or more of the entitling circumstances had ceased to exist: Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307. However in this matter we are satisfied on the balance of probabilities that the damage to Ms Meiklejohn’s shoulders did not occur in the manner claimed. This means that the question of who bears the burden of persuasion is not relevant in determining our final decision.
24. Although it was not argued we have given consideration to whether Ms Meiklejohn suffered an aggravation of pre-existing shoulder conditions in the accident. However in the light of our findings in relation to the shoulder injuries this issue does not arise.
MEDICAL EVIDENCE AND OPINION
25. We have already referred to the findings as to condition of Ms Meiklejohn’s shoulders in September and November 2005. These findings are not in dispute.
Dr Thew
26. Dr Thew has been Ms Meiklejohn’s general practitioner since 1992. Dr Thew provided a number of reports[11] and gave evidence.
[11] Ex.A3.
27. Ms Meiklejohn’s first consultation with Dr Thew following the accident was on 5 March 2001.[12] At that time Dr Thew concentrated on treating Ms Meiklejohn’s serious forearm and hand injuries. Ms Meiklejohn complained generally of major pain. When Ms Meiklejohn complained later of pain in her shoulders Dr Thew initially attributed this pain to Ms Meiklejohn having suffered a whiplash injury to her spine.
[12] Ex.R15.
28. Ms Meiklejohn gave evidence that she complained to Dr Thew about the pain in her shoulders in the months following the accident. Dr Thew did not record a reference to a shoulder condition until 3 December 2001. That entry referred to the left shoulder. Dr Thew said that she has a specific recollection of Ms Meiklejohn complaining of shoulder pain. She was unable to be precise as to the time the complaint was first made other than it was in 2001.[13]
[13] Transcript 27/2/08, p-118.
29. A clinical note of a consultation on 15 January 2004 made by Dr Thew refers to “some problems right shoulder”.[14] It does not record complaint of a problem with the left shoulder.
[14] Ex.R15.
30. Dr Thew also gave evidence that she became concerned about the state of Ms Meiklejohn’s rotator cuff “from the very outset, about a month after.” [15] Dr Thew did not say which rotator cuff was the cause of concern. However in cross-examination she said that Ms Meiklejohn had pain in her shoulders which she “identified as a rotator cuff injury with hindsight, with hindsight, after obtaining the test that I wanted to get originally to see if there were tears to the supraspinatus tendons.” [16] (Emphasis added).The tests were carried out in September and November 2005. It was not until Dr Thew issued a certificate to Comcare on 8 August 2005 that she recorded a recommendation that Ms Meiklejohn undergo ultrasound examination of her shoulders. She gave evidence that she had made verbal requests for such examination previously. She was uncertain as to when these requests were made. She did not form the view that the tests were needed until about the time of a consultation with Ms Meiklejohn in January 2004.[17]
[15] Transcript 27/2/08, p-119.
[16] Transcript 27/2/08, p-147.
[17] Transcript 27/2/08, p-153.
31. Dr Thew also gave the following evidence:
“Now, I realised over time that she had pain which was not related to whiplash injury to the cervical spine, and that was when I realised that I needed to look further into the shoulder pain, and that is when I started to seek – request approval for ultrasounds and MRIs of her shoulders ….. I was convinced, having done clinical assessment, that she had two tears of her supraspinatus tendons.” [18]
[18] Transcript 27/2/08, p-125.
32. In the opinion of Dr Thew the injury to each of Ms Meiklejohn’s rotator cuffs was a direct consequence of her holding the steering wheel in both hands at the time of the impact and having the force of the impact travel through the steering wheel to her shoulders. Also she was of the opinion that the impact effect of the airbag on Ms Meiklejohn’s chest wall added to the sheering stress to her shoulders.[19] However in her report of 25 August 2006 [20] she stated:
“I am absolutely of the opinion that both rotator cuff tears were a result of airbag impact.”
[19] Transcript 27/2/08, p-140.
[20] Ex.A3.
When cross-examined as to this difference in her opinions she stated that she did not know which of the two was the cause of the injury but that it was one or the other.[21]
[21] Transcript 27/2/08, p-163.
Dr Griffith
33. Dr Griffith is a Consultant Surgeon. He assessed Ms Meiklejohn on 18 and 19 April 2006 at the request of Ms Meiklejohn’s solicitors. He provided reports of 2 June 2006 and 17 July 2006 [22] and gave evidence.
[22] Ex. A6.
34. In the opinion of Dr Griffith the constellation of injuries to the rotator cuffs was unlikely to be due to simple degenerative change and usually indicates fairly major trauma. [23] Further, in his opinion labral tears are very unusual in the absence of trauma. He based this opinion on an application of the laws of physics taking into account an estimated speed of the vehicle of 60 kph at the point of impact. In his view there was a major deceleration and the deceleration forces were transmitted up Ms Meiklejohn’s rigid arms and into the scapula musculature and cervical musculature. In cross-examination he said that in his opinion the injuries were caused by the transmission of deceleration forces and the impact of the airbag.
[23] Transcript 28/2/08.
Ms Li
35. Ms Li holds Bachelor Degrees in Sports Medicine and in Chinese Medicine. She began treating Ms Meiklejohn in 2000 and treated her in 2002 and 2003 and on one occasion in 2005.
36. In March 2001 Ms Li commenced treatment for symptoms arising from the 2001 accident. The treatment was for headaches and pain in the neck, shoulders, left arm and lower back. Ms Li diagnosed Ms Meiklejohn as suffering cervical and lumbar spine whiplash injuries.[24] Ms Li reported that the intensity of the neck, shoulder and lower back pain was reduced by regular treatments of acupuncture and massage but that consistent pain at the injured sites continued, particularly with prolonged physical activity. Ms Li does not now recall how Ms Meiklejohn described the nature of the pain in her shoulders and in particular did not recall the exact site of the pain.
[24] Ex. A7.
37. Ms Li gave evidence. She said that after a few treatments Ms Meiklejohn reported that she was involuntarily dropping things from her left hand. This caused Ms Li to become concerned that Ms Meiklejohn may have suffered some damage to her shoulder so she asked Ms Meiklejohn to consult her general practitioner for further investigation.
Report of Dr Gillespie
38. Dr Gillespie, Orthopaedic Surgeon, was Ms Meiklejohn’s treating specialist in relation to the injury to her forearm and hand. In a report of 6 June 2001,[25] which followed a consultation on 21 May 2001, he stated that Ms Meiklejohn was troubled by aching in her left shoulder and neck.
[25] Ex.A2.
Report of Dr Gordiev
39. Ms Meiklejohn was referred to Dr Gordiev, Orthopaedic Surgeon, by Dr Thew. In a letter dated 12 May 2006 to Dr Thew, Dr Gordiev stated:
“I have been asked to write a letter stating that Ms Meiklejohn’s bilateral shoulder rotator tears were caused by the motor vehicle accident on 28 February 2001………
I think it is unlikely that deployment of an airbag could cause rotator cuff tears, however it is possible that if Ms Meiklejohn was holding onto the steering wheel and experienced a sudden deceleration that force might cause a rotator cuff tear. It is also possible that Ms Meiklejohn had rotator cuff tears prior to this incident which were not symptomatic and that the incident, as described, made them symptomatic.” [26]
[26] Ex. A4.
Further reports relied upon by Ms Meiklejohn
40. Numerous documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act (1975) and referred to in the Applicant’s Statement of Facts and Contentions of 22 November 2006 (so far as that statement related to the application before us) were tendered.[27] These documents included the following reports/correspondence from health professionals:
[27] Ex. A1.
·Physiotherapy Treatment Notification dated 24/4/01 by Ms J Kellett (T13);
·Initial Assessment Report dated 9/12/02 by Canberra Management Centre (T47);
·letter dated 13/4/04 from Dr Thew to Comcare;
·undated letter from Dr Thew to Comcare (T64);
·letter dated 3/6/04 from Dr Thew to employer (T53);
·report dated 12/6/04 by Ms Langford (T67d);
·report dated 26/2/04 by Dr Isaacs (T67b);
·report dated 28/2/05 by Dr Stevenson (T58);
·report dated 25/5/05 by Dr Warfe (T67c);
·report dated 18/10/05 by Dr Thew (T90);
·report dated 22/11/05 by Dr Gordiev (T98);
·report dated 3/305 by Dr Synnott (T59);
·report dated 23/2/06 by Dr Donsworth (T106).
41. We have considered all of the documents tendered. On the basis of the documents in exhibit 1 we are satisfied of the following:
1)on 23 April 2001 Ms Meiklejohn received physiotherapy to her left arm and it was noted that at that time she had residual stiffness and atrophy of the left shoulder;
2)Ms Meiklejohn was treated by Ms Langford, Psychologist, in November 2001 and at that time complained of constant pain in her neck and right shoulder;
3)in November and December 2002 Ms Meiklejohn was assessed by Dr Eaton and Ms Conroy at the Canberra Injury Management Centre and it was noted that she was complaining of “constant neck and right shoulder/arm pain” and that her right shoulder had poor stability and strength;
4)when Dr Isaacs, Hand and Reconstructive Surgeon, assessed Ms Meiklejohn at the request of her solicitors in February 2004 she had a full range of motion in both shoulders;
5)when Ms Meiklejohn was assessed by Dr Warfe in May 2005 she complained of constant pain in her neck, upper back and both shoulders and he recorded that her right shoulder movements were reduced and mildly painful.
We have referred to the evidence of Dr Thew elsewhere in these Reasons.
Professor Nade
42. Professor Nade is a Professor of Orthopaedic Surgery with 40 years experience as a general orthopaedic surgeon. He assessed Ms Meiklejohn at the request of Comcare’s solicitors in February 2006. He provided reports dated 20 February 2006, 5 March 2007 and 14 February 2008 respectively.[28] He gave evidence.
[28] Exs 26, 27 & 28.
43. In the opinion of Professor Nade the condition of Ms Meiklejohn’s rotator cuffs as disclosed by the various scans was not due to acute trauma but “the changes are those which are commonly found in people over the age of 30 with increasing frequency as age goes on due to attrition, degenerative changes.” [29]
[29] Transcript 29/2/08 p-248
44. When he gave evidence Professor Nade said that, in his opinion:
1)if there is an acute rupture of the supraspinatus tendon one would expect an immediate onset of pain which is usually experienced at the outer point of the shoulder;
2)the onset of acute pain caused by a rupture of the tendon would not be delayed by weeks or months but would diminish with the passage of time;
3)a spontaneous rupture may occur without a traumatic event and because it is due to attrition and the thinning of the tendinous structure there may not be pain experienced at the time;
4)the symptoms of cervical whiplash are usually pain in the neck, usually associated with movement, and often discomfort is felt in each side of the neck into the region of the trapezius muscles;
5)if a person suffers an avulsion of a tendon in one shoulder it is likely to happen on the other side by reason of the nature of the person’s tissues;
6)the imaging of Ms Meiklejohn’s shoulders did not provide information to enable the determination of the timing of the avulsions;
7)there is no relationship between the appearance of Ms Meiklejohn’s imaging studies of the shoulders and the level of pain which would be experienced;
8)a person may have a ruptured rotator cuff without experiencing pain and may be able to swim and play tennis;
9)damage to the labrum commonly happens by reason of degeneration.
Report of Southside Physiotherapy & Sports Injury Centre
45. In the latter half of 2003 Ms Meiklejohn sought physiotherapy from the Centre. On 20 October 2003 Mr Kragh reported that Ms Meiklejohn complained of right shoulder pain and that:
“Barbara also has a slightly stiff posteo-capsule of her ® shoulder joint and as a consequence of that I mobilised her ® shoulder giving her a much better range of movement of that joint.” [30]
[30] Ex.R24.
CONCLUSION AND REASONING
46. Having considered all of the evidence before us we are satisfied on the balance of probabilities that the claimed injuries to Ms Meiklejohn’s shoulders, being injuries to the rotator cuffs, were not caused by the accident on 28 February 2001. For the reasons which follow we have preferred the opinion of Professor Nade in reaching this decision.
47. Although we accept that the experience of pain is subjective and therefore varies from one individual to the next, we are not satisfied that Ms Meiklejohn has suffered pain of the intensity and continuity which she described to us. Her evidence was that ever since the accident she has suffered “terrible pain” in both shoulders. She described this pain as being like “dragging barbed wire over raw flesh.”
48. There can be no doubt that following the accident Ms Meiklejohn would have been in severe pain for some considerable time and we do not doubt that immediately after the accident she suffered pain in the whole of her upper body as she described. In view of the extent of her injuries we make no inference adverse to Ms Meiklejohn based on the lack of a notation in either the ambulance records or Canberra Hospital records of her complaining of pain in her shoulders. However, if Ms Meiklejohn was suffering pain as she now describes during 2001 there is no satisfactory explanation as to why she would not have complained of this sufficiently to Dr Thew to have caused the doctor to have made a note of her complaint before December of that year.
49. There is evidence, which we accept, that Ms Meiklejohn did complain of pain in her shoulders shortly after the accident. Ms Li recorded treatment for pain in the shoulders but was unable to recall where in the shoulders the pain was being experienced or the nature of the pain. Ms Li did record that at the same time Ms Meiklejohn was complaining of headaches and pain in her neck.
50. Dr Gillespie reported Ms Meiklejohn being troubled by aching of her left shoulder in May 2001 (but made no reference to the right shoulder). He referred to aching in the neck at the same time.
51. The evidence as to Ms Meiklejohn’s complaints after 2001 and to which we have referred earlier in these reasons, shows a pattern of complaints of pain in one shoulder or the other and usually associated with pain in the neck. Dr Warfe reported complaint of constant pain in both shoulders but this was in May 2005, more than 4 years after the accident. Dr Warfe also reported complaint of pain in the neck.
52. When Ms Meiklejohn was asked to describe to us in detail the site of the shoulder pain she has experienced since the accident she indicated each side of her head and neck and across the top of her shoulders in the area of the trapezius muscles.
Evaluation of the medical evidence
53. Professor Nade has extensive experience as a general orthopaedic surgeon (including experience gained by operating to repair shoulder injuries) and has qualifications relevant to the issues under consideration. He provided us with a detailed explanation of the function of the various components of the shoulder and the effect of trauma to, and degeneration of, these components.
54. On the basis of the evidence of Professor Nade we are satisfied of the following:
1)in the case of an acute rupture of the supraspinatus tendon an immediate onset of pain is to be expected and would not be delayed by a period of weeks;
2)the pain experienced on such a rupture is caused by bleeding;
3)the pain occasioned by an acute rupture of the tendon is usually experienced at the point of the shoulder;
4)a spontaneous rupture of the tendon may occur by reason of degeneration without trauma and may not be associated with pain at the time;
5)a person with a ruptured rotator cuff may not experience pain and may be able to play tennis and to swim;
6)damage to the labrum commonly happens by reason of degeneration.
55. On the basis of Professor Nade’s evidence we are satisfied on the balance of probabilities that the damage to Ms Meiklejohn’s shoulders disclosed by the imaging in late 2005, more than 4 years after the accident, was caused by degeneration and not by trauma suffered in the accident. We accept also his evidence that the imaging available does not permit a determination of when the damage occurred.
56. Counsel for Ms Meiklejohn has argued that we should be persuaded that the damage to Ms Meiklejohn’s shoulders occurred in the accident because she was symptom free and able to play tennis and swim prior to the accident whereas after the accident she experienced constant pain in her shoulders. We do not agree with this proposition as our findings based on Professor Nade’s evidence do not support its logic. Whilst there is no doubt as to the nature of the damage to the shoulders, the causative link to the accident does not follow. The damage may have occurred at a time other than the time of the accident by either spontaneous rupture or otherwise without Ms Meiklejohn experiencing pain at the time and without affecting her ability to swim and play tennis. The pain which we are satisfied Ms Meiklejohn experienced in the years after the accident is of the nature described by Professor Nade as arising from whiplash injury rather than that expected from rupture of the tendons. Dr Thew initially diagnosed Ms Meiklejohn as suffering from a whiplash injury in the accident and maintained this diagnosis until at least early 2004.
57. We prefer the evidence of Professor Nade to that of Dr Thew by reason of Professor Nade’s greater experience and specialist qualifications. Further, although Dr Thew said in evidence-in-chief that she became concerned as to the state of Ms Meiklejohn’s rotator cuffs “from the very outset, about a month after” the accident, she later stated that she identified the rotator cuff injuries with hindsight, after the obtaining the tests. This was in 2005. Dr Thew said that she first requested that Comcare fund the necessary investigation about one year prior to the tests being carried out. We are not satisfied that Ms Meiklejohn presented to Dr Thew with symptoms which suggested to Dr Thew that she may have tears to her rotator cuffs until early 2004, three years after the accident.
58. We do not accept the reasoning of Dr Thew and others that the mechanism of the injury was that deceleration forces were transmitted along Ms Meiklejohn’s rigid arms to her shoulders. We do not have the necessary evidence, neither factual nor by way of expert opinion, to enable us to accept such a proposition. Amongst other shortcomings in the evidence we are not able to determine the speed at which the vehicle was travelling, the extent to which the particular vehicle and the airbag would have absorbed the force of the impact nor the mechanism by which the forces involved would have been transmitted along Ms Meiklejohn’s arms. We do not know the assumptions which have been made as to the positioning of her arms and the effect of these assumptions.
59. Further we found Dr Thew’s opinion of less assistance than that of Professor Nade as she gave conflicting views as to the cause of the injury, varying between the deceleration forces of the collision and the impact of the airbag. When questioned Dr Thew stated that she did not know which of the two was the cause, although she did maintain that it was one or the other.
60. We prefer the evidence of Professor Nade to that of Dr Griffith. Dr Griffith agreed [31] that the basis of his opinion was that Ms Meiklejohn was “heavily braced on the wheel …at the time of the ...accident” [32] For the reasons already stated we are not satisfied that the proper basis for this opinion has been established. Dr Griffith also appears to rely upon a calculation of the energy generated in the collision based on an impact speed of 60 kilometres per hour. [33] We are not satisfied that the vehicle was travelling at this speed. In contrast Professor Nade provided an opinion based on his experience and training as a medical practitioner.
[31] Transcript 28/2/08 p-189.
[32] Report of 2 June 2006, ex.A6.
[33] Transcript 28/2/08 p-183.
61. As Dr Griffith gave evidence it became apparent that Dr Griffith had submitted a draft of his report of 2 June 2006 to Ms Meiklejohn’s solicitor for his comment prior to the final report being issued. In our view this procedure was inappropriate.
62. Dr Gordiev was asked to provide a letter stating that the rotator cuff tears were caused by the accident.[34] Her opinion in response to this request was that she thought that it was unlikely they were caused by the airbag. Her opinion that it was possible that the injury was caused by deceleration forces if Ms Meiklejohn was holding the wheel at the time of the accident was unsupported by any detailed argument. We prefer the reasoning of Professor Nade for the reasons already stated.
[34] Ex.A4.
DECISION
63. The reviewable decision of Comcare made 29 March 2006 “to revoke liability for ‘sprain of shoulder and upper arm (bilateral)’” is affirmed.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W.Constance, Senior Member.
Signed: ....................[signed].................................................................
Peter Horobin
AssociateDate of Hearing 27- 28 September 2007
27, 29 February 2008
Date of Decision 24 April 2008
Counsel for the Applicant Alan Anforth
Solicitor for the Applicant David Lander
Lander & Co.
Counsel for the Respondent Mark Best
Solicitor for the Respondent Geoff WilsonDibbs Abbott Stillman
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