Mikajlo and Comcare (Compensation)
[2017] AATA 61
•25 January 2017
Mikajlo and Comcare (Compensation) [2017] AATA 61 (25 January 2017)
Division
GENERAL DIVISION
File Number
2012/2819
Re
George Mikajlo
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal:Deputy President K Bean
Date:25 January 2017
Place:Adelaide
The decision under review is varied so as to provide that as at and from 23 June 2010, compensation liability pursuant to ss 16 and 29 of the Safety, Rehabilitation and Compensation Act 1988 was ongoing with respect to Mr Mikajlo’s left shoulder injury only.
.............. [Sgd] ...............................
Deputy President K Bean
CATCHWORDS
COMPENSATION – Commonwealth employees – Injuries sustained to left and right shoulders – Whether ongoing entitlement to compensation under sections 16, 19 or 29 of the Safety, Rehabilitation and Compensation Act 1988 – Further claims for compensation in relation to a number of conditions and extent to which Tribunal had jurisdiction – Whether applicant continued to suffer from effects of compensable injury – Whether compensable left shoulder injury continued to result in incapacity, the need to obtain household services and/or treatment – Decision under review varied.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 4(9), 16, 19, 29 and 67(8)
CASES
Abrahams v Comcare (2006) 93 ALD 147
The Darling Island Stevedoring and Lighterage Co. Limited v Hankinson (1967) 117 CLR 19
REASONS FOR DECISION
Deputy President K Bean
25 January 2017
In July 2007, the applicant, Mr Mikajlo, was working for the Department of Defence in a clerical position at Edinburgh in South Australia when he suffered an injury to his shoulders. In a compensation claim form dated 10 August 2007, Mr Mikajlo claimed compensation for “left shoulder/arm musculoligamentous injury and rt shoulder” which he indicated occurred on 16 July 2007. He also said that he first received medical treatment for this injury on 23 July 2007.[1]
[1] Exhibit R1, T10/32.
Mr Mikajlo attributed the injury to “lifting a box from a high shelf, weight of box >15kg and height coupled with unexpected weight of box.”[2] He also provided a medical certificate dated 9 August 2007 from Dr Bruno Rositano, General Practitioner, which indicated that Mr Mikajlo was suffering “left shoulder/arm musculoskeletal injury and right shoulder injury”.[3]
[2] Ibid.
[3] Ibid.
In a determination of 12 October 2007, a delegate of Comcare initially disallowed Mr Mikajlo’s compensation claim. However, Mr Mikajlo sought reconsideration of that determination and a reconsideration was subsequently undertaken. Mr Mikajlo was advised of the outcome of that reconsideration by letter dated 12 May 2008.[4] The reconsideration delegate ultimately concluded:
After reviewing the information contained on the employee’s claim file I am satisfied that he has sustained an injury to his left and right shoulders which has aggravated the underlying changes therein. I am also satisfied that this aggravation occurred in the course of his employment. I am further satisfied that the date of injury in this circumstance cannot be deemed under section 7(4) of the Act and have amended this to reflect the date the incident occurred, 10 July 2007.[5]
[4] Ibid.
[5] Ibid, T10/34.
In light of her conclusions, the delegate revoked the earlier determination dated 12 October 2007 and determined that Comcare was liable to pay compensation in respect of “aggravation of sprain of shoulder & upper arm (right)” and “aggravation of disorders of bursae and tendons shoulder region (left)”.[6]
[6] Ibid.
For my purposes, the next relevant event with respect to Mr Mikajlo’s claim was that in April 2010, the respondent arranged for Mr Mikajlo to be examined by Mr Ronald Haig, Consultant Orthopaedic Surgeon. Mr Haig examined Mr Mikajlo on 8 April 2010 and provided a report dated 15 April 2010.[7]
[7] Exhibit 2, Tab 52.
In light of Mr Haig’s conclusions, on 23 June 2010 a Comcare delegate determined that as at that date Mr Mikajlo no longer suffered from the effects of his compensable injury and accordingly he had no ongoing entitlement to compensation under sections 16, 19 or 29 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).[8]
[8] Exhibit 1, T17/69.
By way of a reconsideration decision of 18 January 2012, a Comcare delegate subsequently affirmed the original determination of 23 June 2010 ceasing liability for Mr Mikajlo’s compensable injury under ss 16, 19 and 29.[9]
[9] Ibid, T21/94.
STATUTORY FRAMEWORK AND ISSUES
Sections 16, 19 and 29 of the SRC Act provide for the payment of compensation in respect of medical expenses, incapacity and household expenses respectively. The relevant provisions require, before there is liability to pay compensation, that the treatment was “obtained in relation to” the injury, that the incapacity was suffered “as a result of” the injury or that the household services were obtained “as a result of” the injury.
It follows that, in broad terms, the issues for my determination are:
(a)Whether, as at 23 June 2010, Mr Mikajlo continued to suffer from the effects of his compensable injury; and
(b)If so, whether the compensable injury continued to result in incapacity, the need to obtain household services and/or treatment in relation to the injury.
THE MEDICAL EVIDENCE
There is a broad consensus among the doctors who have assessed Mr Mikajlo that the lifting incident affected his left and right shoulders differently. A majority of the doctors also agree that the symptoms Mr Mikajlo experienced in his shoulders after the incident were caused by damage to his shoulders, and that there was more damage done to the left shoulder than to the right.
As alluded to above, Dr Rositano was Mr Mikajlo’s treating General Practitioner at the time of the injury and has continued to be his GP since then. A few months after the incident he provided a report dated 2 October 2007 in which he indicated:
Mr. Mikajlo presented on the 23rd July, 2007 with a history of having lifted a box weighing around 30 kg., when he experienced left arm pain.
…
He presented on the 9th of August 2007 when the Physiotherapist felt he had sustained a torn muscle and he was feeling depressed as his right shoulder was also giving him problems, probably due to overuse.
…
He sustained a tear of his left rotator cuff and subacromial bursitis with impingement.
The causative factor is the heavy lifting superimposed on pre-existing degenerative changes. He has a past history of osteoarthritis with cervical spondylosis.
I feel the current condition is an aggravation of pre-existing degenerative conditions.
There is a direct relationship with his condition and lifting a 30 kg. box at work.[10]
[10] Exhibit 2, Tab 28, p 1 and p 5.
In his oral evidence at the hearing, Dr Rositano confirmed that as a result of the lifting accident in June 2007 he thought that Mr Mikajlo:
… [s]uffered strain to his musculature in the shoulders, the supraspinatus, and he developed a bursitis and aggravated pre-existing degenerative changes in his shoulders.[11]
[11] Transcript, 9 March 2016, p 41.
With respect to the impact of the lifting injury on each shoulder, Dr Rositano stated:
Well the 2007 injury I think mainly his left shoulder was more affected. I think that the right shoulder was temporarily aggravated, but his left shoulder was – was the one that was injured more I think in that situation.[12]
[12] Ibid, p 42.
With respect to the right shoulder he said:
I think just strained the rotator cuff, just strained it, strained the muscles, and that seemed to settle down and then because the left shoulder was bad and he was overusing the right shoulder that flared up again. Shoulder injuries are notorious for doing that, they’re so unpredictable.[13]
[13] Ibid.
He went on to confirm that in his opinion, immediately after the 2007 incident, Mr Mikajlo developed tendonitis, bursitis and an aggravation of pre-existing degenerative changes in his left shoulder. However, with respect to the right shoulder this was a soft tissue strain that recovered, or would have recovered but for problems which subsequently developed due to compensating for the inability to use the left shoulder. In his opinion, the need to compensate with the right shoulder ultimately led to the development of similar problems in the right shoulder to those which developed in the left shoulder immediately following the incident. He also indicated that he regarded the overuse aspect of the right shoulder condition as ongoing. In other words, his evidence was that the right shoulder condition may not have been as bad as it currently was if not for the overuse due to Mr Mikajlo’s left shoulder condition.[14]
[14] Ibid.
As to precisely what damage was done to Mr Mikajlo’s left shoulder in the incident, Dr Rositano referred to an MRI scan of 30 August 2007, which showed a “tiny insertional intrasubstance and articular surface partial thickness tear” of the supraspinatus tendon.[15] He indicated that he considered this tear probably occurred in the incident and led to the development of or a worsening of Mr Mikajlo’s bursitis in the left shoulder.[16]
[15] Exhibit R2, Tab 25.
[16] Transcript, 9 March 2016, p 55.
Dr Rositano further indicated that after the 2007 incident Mr Mikajlo went on to develop adhesive capsulitis in his left shoulder.[17] He said this was shown in the MRI done on 30 August 2007, stating “So that was a month after, so that would fit with the injury”.[18] Dr Rositano went on to explain that while he thought Mr Mikajlo had had capsulitis, the condition currently was more in the nature of a chronic bursitis.[19] He indicated that he thought the adhesive capsulitis element would have improved three to six months after the injury “but the pain persisted, and that’s probably the chronic bursitis after that”.[20] He also said that Mr Mikajlo continued to complain of frequent symptoms in his left shoulder and he still was not able to lie on that shoulder.
[17] Ibid, p 44.
[18] Ibid.
[19] Ibid, p 45.
[20] Ibid.
As to whether Mr Mikajlo’s bursitis originated from the injury in June 2007 or was pre-existing, Dr Rositano stated:
You can only go on the clinical signs, the fact that he developed pain after this episode. He hadn’t had the pain before to that degree … .[21]
He indicated that if the bursa had been thickened already, it was not causing any impingement earlier:
It wasn’t causing any impingement then, so if it happened that – strained it, it had some damage to one of the ligaments that caused a bit of inflammatory fluid which caught in the bursa and thickened and caused pain.[22]
He also confirmed that this would have caused the bursa to become more swollen.[23]
[21] Ibid, p 43.
[22] Ibid.
[23] Ibid, p 44.
Dr Rositano further indicated that so far as he was aware, there was no evidence of a tendon tear, tendonitis or bursitis in Mr Mikajlo’s left shoulder prior to 2007,[24] although he later acknowledged having seen a report written by Mr Bradley, Orthopaedic Surgeon, on 17 August 2004, which referred to Mr Mikajlo suffering from “bilateral shoulder acromiohumeral rotator cuff impingement arthropathy.”[25] He agreed that this was an indication that as at 2004 Mr Mikajlo had some bursitis.[26]
[24] Ibid, p 65.
[25] Exhibit R2, Tab 16, p 6.
[26] Transcript, 9 March 2016, p 53.
Dr Rositano’s opinion is largely consistent with that expressed by Mr Mikajlo’s treating Orthopaedic Surgeon, Dr Robert Atkinson. He first saw Mr Mikajlo not long after the lifting incident on 6 September 2007 and his first report is dated 21 September 2007. In that report he noted:
His problem went back three years or so when he carried a patient, and has really remained much the same until recently on 16 July 2007 when he was lifting he worsened.[27]
[27] Exhibit 2, Tab 27, p 1.
Dr Atkinson stated:
I noted his investigations which showed cervical spondylosis and minor rotator cuff tearing and the pattern was that of rotator cuff degeneration, some tearing and subacromial bursitis with a degree of impingement.
…
The diagnosis is cervical spondylosis, rotator cuff degeneration with partial tearing of the cuff with some subacromial bursitis and impingement.
…
This pathology is a function of age, activities, injuries, genetics and unknown factors as with any degenerative condition.
…
The patient’s current condition is probably an aggravation of pre-existing degeneration … .
As this lifting seemed to occur at work the aggravation is thus directly related to his employment.[28]
[28] Ibid, pp 2-3.
He has also provided a more recent report, dated 11 September 2012.[29] In that report, Dr Atkinson noted that when reviewed on 20 June 2008, Mr Mikajlo had had some relief from a steroid injection into his left shoulder. A further injection was undertaken from which Mr Mikajlo reported some benefit on 31 July 2008. He stated:
The x-rays and ultrasounds done demonstrated a slight curve to the acromiom but no major rotator cuff tearing or impingement but clinically he did. Stressing the rotator cuff was painful.[30]
[29] Exhibit R2, Tab 62.
[30] Ibid, p 3.
Dr Atkinson also stated:
The condition for which I recommended surgery of “left shoulder arthroscopic surgery possible open rotator cuff repair” on 10 November 2011 is the same condition as documented in my consultation of 6 September 2007.[31]
[31] Ibid.
I should also note that the material before me includes a report of 12 August 2011 in relation to the ultrasound done in conjunction with further cortisone injections of both shoulders. That report stated with respect to the left shoulder:
Only minimal enthesopathy/tendinopathy of the anterior supraspinatus but no significant tear. Symptomatic catching of the subdeltoid bursa against the CA ligament on active abduction … .[32]
[32] Exhibit 2, Tab 57.
With respect to the right shoulder, the report stated:
A normal rotator cuff. Thickening of the subdeltoid bursa with bursal catching lateral to the CA ligament on active abduction in neutral rotation and to a lesser extent external rotation, the bunching coinciding with patient discomfort.[33]
[33] Ibid.
A similar opinion to that of Drs Rositano and Atkinson has also been expressed in the reports provided by Mr Mills, a Consultant Orthopaedic Surgeon, dated 2 December 2008 and 17 October 2013 and prepared at Comcare’s request.
In his first report, Mr Mills said:
Mr Mikajlo in my opinion has suffered an aggravation of the pre-existing strain injury of the right shoulder as a result of the incident at work on 16 July 2007.
Of more importance however, is the condition of the left shoulder which in my opinion is on the basis of the following pathologies:
i. partial tear of the supraspinatus tendon on the left;
ii. a left subacromial bursitis; and
iii. a probable adhesive capsulitis of the right shoulder which has improved somewhat over the 16 months since injury. Degenerative changes comprising osteoarthritis of the left and right acromioclavicular joint in my opinion are not important from a clinical viewpoint.[34]
[34] Exhibit 2, Tab 40, p 7.
I should note it is clear from the balance of the report that the reference to adhesive capsulitis of the right shoulder is an error and that this is intended to be a reference to the left shoulder.[35] Mr Mills also indicated in his report that his examination revealed left shoulder joint motion to be grossly limited.[36] Mr Mills’ prognosis was that “… Mr Mikajlo will not regain normal function of the left shoulder in the long term”.[37]
[35] Ibid; see page 6.
[36] Ibid, p 5.
[37] Ibid, p 8.
Mr Mills reviewed Mr Mikajlo again on 8 October 2013[38] before providing his second report. On this occasion, Mr Mikajlo apparently reported that his main continuing difficulty following the injury of 16 July 2007 related to his left shoulder. On that occasion, Mr Mills again diagnosed subacromial bursitis of the left shoulder and a left supraspinatus tendonitis.[39] Mr Mills did not find any abnormality of the right shoulder. He summarised his opinion as follows:
In my opinion, Mr Mikajlo is currently suffering from his compensable conditions in respect of the left shoulder only. He demonstrates moderate loss of active shoulder joint motion with a painful arc of abduction and there is evidence of a positive impingement sign in the left shoulder. The MRI scan confirms a subacromial bursitis and an anterior supraspinatus tendonitis with evidence of acromial down sloping and spurring projecting into the anterior aspect of the subacromial space.
The right shoulder condition has resolved and from the information available to me, it is not possible to state precisely when that occurred.[40]
[38] Exhibit 2, Tab 67.
[39] Ibid, p 6.
[40] Ibid.
He also indicated that in his opinion, the surgery then proposed by Dr Atkinson, being “arthroscopic surgery to the left shoulder with acromioplasty and decompression” was “indicated”. Mr Mills further stated:
It is my opinion that he would have required medical or other treatment for his compensable conditions on or after 23 June 2010. I note that he was subjected to steroid injections about both shoulders on 12 August 2011 with some benefit.
…
It is my view that household assistance is necessary as a result of his compensable conditions. Household assistance on or after 23 June 2010 to the present, would have been required for one hour a fortnight as a result of his left shoulder symptoms.[41]
[41] Ibid, p 7.
I should add that, consistently with Mr Mills’ opinion, Dr Rositano also indicated that in terms of treatment, he considered Mr Mikajlo’s shoulder conditions required physiotherapy and massage on an occasional basis to address any exacerbations.[42] With respect to his capacity for work, Dr Rositano indicated that he considered as at the middle of 2010 Mr Mikajlo was still incapacitated by his bursitis but could have worked up to 20 hours per week doing light clerical work.[43] Mr Mills expressed a similar view in his 2013 report, although he also stated “From the purely musculoskeletal viewpoint, Mr Mikajlo, in my opinion, is not incapacitated for employment as a clerical officer as a result of his compensable conditions”.[44]
[42] Transcript, 9 March 2016, pp 46 - 47.
[43] Ibid, p 48.
[44] Exhibit 2, Tab 67, p 6.
A not dissimilar opinion has also been provided by Dr Awerbuch, Consultant Physician, in a report dated 28 July 2009.[45] In that report, Dr Awerbuch commented on the imaging as follows:
An x-ray of both shoulders on 10/8/07 reported minor osteoarthritic changes in the acromioclavicular joints bilaterally. In the case of the left shoulder minor thickening of the subacromial bursa was reported with changes suggestive of a supraspinatus tendinitis “but without evidence of focal tear”.
On 30/8/07 he had an MRI of the left shoulder which showed slight thickening of the coracohumeral ligament (a finding encountered in adhesive capsulitis or frozen shoulder). Moderate thickening of the subacromial bursa was noted. There was a partial thickness tear identified in the tendon of supraspinatus.
An MRI of the cervical spine on 30/8/07 showed multilevel degenerative disease in the absence of spinal cord or nerve root compression.[46]
[45] Exhibit 2, Tab 49.
[46] Ibid, pp 7 - 8.
Dr Awerbuch also stated:
Mr Mikajlo has degenerative rotator cuff disease characterised primarily by the presence of tendinitis, the very earliest stage of degenerative rotator cuff disease. In the case of the left shoulder the MRI identified a subtle high intensity focus “suggesting a tiny insertional partial thickness tear”. While these findings may be associated with symptoms, findings of this magnitude and indeed findings of far greater magnitude eg full thickness tears are frequently encountered in pain free subjects of Mr Mikajlo’s age.[47] [Emphasis in original]
[47] Ibid, p 8.
Dr Awerbuch expressed the opinion that:
It is possible that in the incident that occurred on 16/7/07 Mr Mikajlo rendered symptomatic or alternatively aggravated, pre-existing degenerative changes but the minimal nature of these changes makes it unlikely that the incident had long term consequences notwithstanding Mr Mikajlo's reported on-going symptoms.[48]
[48] Ibid, p 9.
For completeness, another Orthopaedic Surgeon, Dr Leonello, has provided hand written answers to questions asked of him by Mr Mikajlo. He has also expressed the opinion that Mr Mikajlo has “bilateral impingement syndrome”[49].
[49] Exhibit 6, p 1.
In sharp contrast to the other doctors, however, Mr Haig has ultimately reached quite a different conclusion as to the nature and causes of Mr Mikajlo’s shoulder symptoms. In his report of 15 April 2010, Mr Haig recorded the following history:
The incident, which I believe is the subject of this report particularly, occurred at work on 16 July 2007. He was lifting with a fellow clerical worker a box from the top shelf, which was well above shoulder height. He was taller than his colleague. He, with both arms fully stretched in front of him and above lifted the box which was heavier than he expected. He experienced sudden pain in the left and right shoulders but principally the left. This was over the top of the shoulders generally.
This was towards the end of the working day and he completed the day’s work.
Following that he was aware of “catching” with lifting, even something as simple as lifting a cup of coffee to his mouth.[50]
[50] Exhibit 2, Tab 52, p 2.
Mr Haig noted that Mr Mikajlo was suffering from cervical spondylosis, which he indicated was degenerative in origin and constitutional. He also acknowledged the presence of some shoulder pathology, stating:
In terms of his shoulders, I believe the diagnosis is of bilateral rotator cuff pathology more pronounced on the left side than the right. This too I believe is essentially constitutional in origin.[51]
[51] Ibid, p 5.
He accepted there had been some contribution from the lifting incident to Mr Mikajlo’s shoulder pathology, or at least to his symptoms:
As stated above, I believe both of these conditions are essentially constitutional in origin. Having stated that there have been exacerbations/aggravations by way of the incident at work when lifting a box and the earlier incident when lifting the Army Cadet.[52]
[52] Ibid.
He went on to indicate:
Such as the aggravation was, as mentioned above I believe this has been superseded by the natural history of progression of both of his conditions.[53]
[53] Ibid.
He also stated later in his report:
I believe the incident at work was merely an aggravating factor along the course of his constitutional conditions, which are in themselves progressive. As stated above, I believe the natural history of those has long since overtaken the work aggravation.[54]
[54] Ibid, p 7.
He also commented in his report that Mr Mikajlo “did appear to have very limited range of movement of the left shoulder”, which was “more than one would expect from rotator cuff pathology alone”.[55]
[55] Ibid, p 6.
Mr Haig also gave oral evidence, in the course of which he was asked to elaborate on his opinion about Mr Mikajlo’s shoulders, and expressed a significantly different view from that contained in his report. He commented that the relevant scans had never revealed any “gross pathology” in Mr Mikajlo’s shoulders. In particular, he referred to the most recent report of October 2014.[56] He pointed out that this report, which related to x-rays and ultrasound scans, did not show any tear of the rotator cuff. He indicated that such tears do not “heal themselves” and suggested that on the basis of these scans, there had never been a tear of the rotator cuff.[57]
[56] Exhibit R2, Tab 69.
[57] I note that this report did record that the subacromial bursae were “mildly thickened bilaterally”.
He further indicated that he did not now believe that Mr Mikajlo had sustained any injury to his shoulders in the incident of July 2007, and Mr Mikajlo’s restricted shoulder movement was related to his neck. On his analysis, the tiny tear reported on in August 2007 was insignificant in terms of Mr Mikajlo’s symptomatology. He indicated that his interpretation of what had occurred was that Mr Mikajlo had aggravated his cervical spondylosis in the incident of July 2007, leading to symptoms in his shoulders. He agreed with Dr Rositano that Mr Mikajlo’s neck and the related symptoms had returned to their pre-injury state within a relatively short time after the incident of July 2007.
When asked about Dr Rositano’s analysis of what had occurred in the July 2007 incident, Mr Haig expressed the opinion that this analysis was flawed. He said there had not been any relevant tear sustained by Mr Mikajlo at that time, and any bursitis that he was suffering from was mild. He did not agree that Mr Mikajlo suffered from impingement syndrome at any relevant time, and thought it unlikely that his symptoms were explained by a bursitis which was attributable to or worsened by the lifting incident.
Mr Haig was also asked about x-rays and ultrasound scans of the left shoulder taken in August 2007, which were reported on as follows:
There is mild bursal thickening with mild bursal impingement on abduction. The supraspinatus tendon is mildly heterogenous but without evidence of focal tear. The remaining rotator cuff tendons are normal. Normal bicep tendons. No AC joint instability.[58]
However, he said he regarded these findings as unreliable as the ultrasound would have been reported on by a sonographer, not a radiologist.
[58] Exhibit R2, Tab 24.
Mr Haig explained later in his evidence that one of the reasons he did not support the existence of bursitis resulting in impingement was that when he saw Mr Mikajlo, there was a global loss of movement, not just difficulty with abduction. However, he conceded that the report of the ultrasound of 12 August 2011 indicating that there was “Symptomatic catching of the subdeltoid bursa against the CA ligament on active abduction” [59] in the left shoulder may have some significance. He also conceded that to the extent Mr Mikajlo received relief from the injections of cortisone into his bursae, this did suggest an element of bursitis was present.
[59] Exhibit 2 Tab 57.
MR MIKAJLO’S EVIDENCE
I should also acknowledge that Mr Mikajlo gave oral evidence at the hearing. It is unnecessary for me to recount all aspects of that evidence. Most relevantly however, he said that he experienced symptoms in his shoulders following the lifting incident which he had not experienced before. He said by reason of his shoulder symptoms after the incident he had to keep his arms close to his body and he was not able to sleep on his side. He also mentioned that he had difficulty hanging clothes on a clothesline. He said the left shoulder had been worse than the right, but currently both shoulders were about the same.
As to the benefit of treatment, he said while treatment was still being paid for by Comcare he found physiotherapy and massage both helped and made him feel better. He explained he had not been in a financial situation to access treatment since liability was ceased in June 2010. In relation to household services, he said that he had incurred these in the period since June 2010. He also said he would be in a position to produce receipts for gardening services if required.[60]
[60] Transcript, 9 March 2016, p 83.
With respect to his capacity for work, Mr Mikajlo explained that in mid-2010 “even the vibration of driving a car was affecting the shoulders and back”. He went on to say that at that time, he was getting massage three times a week and “there is no way I could have actually gone back to work and gone for the treatment and done the work”. He continued, “Perhaps on a part-time basis I could have worked, but then the other issue I had was I had to try and correlate my pancreatic insufficiency treatment and everything else, and it just became too complicated”.[61] He then went on to confirm that he could physically have done the type of clerical work he was undertaking at that time, at Edinburgh. He explained that in fact the job was ideal because it did not involve sitting at a desk all day – “It meant movement and being able to go – get up and move around”.[62]
[61] Ibid, p 21.
[62] Ibid.
SUBMISSIONS
In his closing submissions for the respondent, Mr Krupka of counsel relied on Mr Haig’s evidence and submitted that the 2007 injury resulted in an aggravation of Mr Mikajlo’s cervical spondylosis. Whilst he acknowledged there may have been some effect on the bursa in the left shoulder, he contended there was no direct injury to the bursa and the primary effect of the accident was an aggravation of spondylosis with referred pain to the shoulders. He further contended that all effects of the injury were well and truly spent by June 2010 such that, by then, Mr Mikajlo was suffering only from his underlying constitutional degenerative conditions with no impact on those conditions from the 2007 injury. In his written submissions, Mr Krupka also directed my attention to contemporaneous records suggesting that Mr Mikajlo had had neck and shoulder problems well prior to 2007 and since at least 1981[63].
[63] Submissions of the Respondent dated 1 April 2016, [5.6].
Mr Mikajlo made only limited oral submissions at the hearing. However, he made detailed written submissions in response to Mr Krupka’s written submissions by way of a letter received by the Tribunal on 29 April 2016 in which he highlighted the relevance of his various medical “co-morbidities”. I have carefully read this letter and taken it into account in making my Decision.
CONSIDERATION
I will first address the question of whether the effects of Mr Mikajlo’s compensable injuries were continuing as at 23 June 2010, before turning to the issue of whether there was ongoing liability under ss 16, 19 and 29.
As at 23 June 2010 did Mr Mikajlo continue to suffer the effects of his compensable injury?
One of the difficulties I have with accepting the respondent’s submissions is that, as I have explained above, Mr Haig is the only doctor to have examined Mr Mikajlo and subsequently formed the opinion that his shoulder symptoms were attributable to his neck condition. Drs Atkinson, Awerbuch, Mills, Leonello and Rositano have all reached the conclusion that Mr Mikajlo’s shoulder symptoms are due to shoulder pathology, albeit they have expressed slightly different views as to the relative contributions to his symptoms from tendonitis, bursitis and rotator cuff pathology.
The effect of the evidence is that Mr Mikajlo began to complain shortly after the lifting incident of shoulder pain which had developed at the time of that incident, and was affecting both shoulders. With respect to the left shoulder, Ds Rositano, Atkinson and Mills all consider that there was an interaction between the lifting incident and the state of Mr Mikajlo’s left shoulder at the time, such that he developed symptomatic left subacromial bursitis with impingement immediately following that incident.
There is some evidence to suggest that the mechanism for this may have involved a partial tear of the left supraspinatus tendon. However, regardless of whether in fact Mr Mikajlo did tear his tendon in the incident, or whether this resulted in symptoms, these doctors all accept that he developed a symptomatic impingement syndrome immediately following the incident, which had not been present beforehand. In addition, in my view, there is overwhelming evidence that Mr Mikajlo has suffered from bursitis with a degree of impingement since 2007, particularly in his left shoulder.
Furthermore, while there is one reference to “bilateral shoulder acromiohumeral rotator cuff impingement arthropathy” in Dr Bradley’s report of 17 August 2004,[64] there is no evidence of Mr Mikajlo suffering from symptomatic subacromial bursitis prior to the incident of 2007. The evidence is that although there may well have been some prior thickening of the left and/or right bursae prior to the incident, this did not appear to be causing symptoms, or at least was not causing any significant symptoms.
[64] Exhibit 2, Tab 16, p 6.
In light of this evidence, I have concluded that I prefer the evidence of all of the other doctors to that of Mr Haig with respect to the cause of Mr Mikajlo’s shoulder symptoms following the 2007 lifting incident. I do not accept Mr Haig’s opinion that Mr Mikajlo’s increased shoulder symptomatology related to his degenerative neck condition. Rather, I accept the opinion of the other doctors that the symptoms in Mr Mikajlo’s left shoulder were due to pathology in that shoulder, most likely some combination of subacromial bursitis, rotator cuff damage/degeneration and a degree of tendonitis.
In addition, I accept the opinions of Drs Rositano, Atkinson and Mills that with respect to his left shoulder, the condition which developed or became symptomatic following the lifting incident of 2007 was still present and still causing symptoms as at June 2010. This is clear not only from Dr Rositano’s reports and evidence, but from Dr Atkinson’s report of September 2012, and Dr Mills’ report of October 2013. Significantly, I note that Dr Atkinson attributed the need for surgery recommended by him on 10 November 2011 to the July 2007 incident.
In summary, taken as a whole, the evidence is that Mr Mikajlo’s left shoulder pathology became symptomatic immediately following that incident, and that he suffered some damage to his shoulder in the lifting incident, which subsequently led to the development of bursitis with impingement. Further, that condition has continued, and has continued to result in symptoms. In my view, it is clear in these circumstances that the effects of the injury are ongoing. I note that it is not relevant to ask whether, absent the injury, Mr Mikajlo’s left shoulder may have arrived at a similar state.[65]
[65] The Darling Island Stevedoring and Lighterage Co. Limited v Hankinson (1967) 117 CLR 19 per Barwick CJ, at pp 26 - 27.
With respect to Mr Mikajlo’s right shoulder, the position is less clear. While he complained of symptoms in the right shoulder immediately following the incident, the consensus of the doctors who have considered this issue appears to be that this was in the nature of a soft tissue strain which subsequently settled. However, there is some evidence that over-use of the right arm, due to symptoms in the left, led to the development of symptomatic bursitis in Mr Mikajlo’s right shoulder.
Resolution of this issue is made more difficult by the fact there is limited evidence directed to the precise state of Mr Mikajlo’s right shoulder in April 2010, and not all of the evidence points in the same direction. When he assessed Mr Mikajlo in 2013, Mr Mills formed the view that the right shoulder symptoms had resolved, whereas Dr Rositano gave evidence that the right shoulder symptoms were ongoing.
In any event, there is also a further difficulty with respect to Mr Mikajlo’s right shoulder condition.
In my view, the balance of the evidence suggests that any injury to that shoulder as a direct result of the 2007 lifting incident resolved probably within months of that incident and certainly well before 23 June 2010. To the extent that further symptoms developed in the right shoulder subsequently and further pathology may have developed secondary to the use of that shoulder, Mr Mikajlo has not, to my knowledge, made any claim for compensation with respect to an over-use injury and certainly there is no claim currently before me. The only relevant claim for my purposes is the claim made on 10 August 2007, which was clearly a claim with respect to the direct impact on the right shoulder of the lifting incident.
It follows, in my view, that I do not have jurisdiction in the context of this matter to consider whether Mr Mikajlo later developed an over-use injury to his right shoulder secondary to the damage done to his left shoulder in the lifting incident. Accordingly, I propose to affirm that part of the reviewable decision which upheld the denial of ongoing liability with respect to the right shoulder.
Did Mr Mikajlo’s left shoulder injury continue to result in incapacity and/or a need for medical treatment or household assistance after 23 June 2010?
Medical expenses
The overwhelming effect of the medical evidence is that after June 2010, Mr Mikajlo’s left shoulder condition remained symptomatic and further treatment, at least in the nature of physiotherapy and/or massage, was likely to be beneficial to him in managing those symptoms, and reducing the impact of the symptoms upon him. In addition, I note that further cortisone injections were undertaken in 2011. Accordingly, I am satisfied that after 23 June 2010, there was an ongoing need for medical treatment with respect to Mr Mikajlo’s left shoulder condition.
Household assistance
Although there is less evidence directed to this issue, a number of doctors have also given evidence to the effect that Mr Mikajlo’s left shoulder symptoms have had an ongoing impact on his ability to carry out certain household activities, including some gardening type work such as weeding, digging, pruning and lawn mowing.[66] Accordingly, I consider that after 23 June 2010, Mr Mikajlo was potentially entitled to compensation for household services.
[66] Exhibit 6; see Dr Leonello’s hand written answers to questions, p 3.
Incapacity
I note that subs 4(9) of the SRC Act provides as follows:
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a) an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
I acknowledge there is some evidence before me which would support a finding of ongoing incapacity after June 2010, including Dr Rositano’s opinion that in mid-2010, Mr Mikajlo could only have worked 20 hours per week and Mr Mills’ opinion that he could work 25 hours per week in “suitable selected clerical work” as at October 2013.[67]
[67] Exhibit 2, Tab 67, p 7.
However, Mr Mikajlo himself acknowledged that his duties at Edinburgh were not incompatible with his left shoulder condition and he could have continued to carry out those duties after his contract ended in August 2007. It was my understanding from his evidence that it was largely the impact of other conditions and the need to seek treatment which he thought would have made it difficult for him to continue to carry out the duties at Edinburgh.
In the event, having regard to all of the medical evidence and the evidence of Mr Mikajlo, I am not satisfied on balance that as at June 2010, Mr Mikajlo’s compensable left shoulder condition was resulting in an ongoing incapacity for work.
THE 2015 CLAIM
I note that it emerged at the hearing that on or about 23 June 2015, Mr Mikajlo had lodged a further claim for compensation in relation to a number of conditions, relevantly including “cervical spondylosis”.[68] This, in turn, gave rise to an issue as to the extent to which I had jurisdiction with respect to this claim, and whether the 2007 claim should be regarded as also embracing a claim for cervical spondylosis or neck pain.
[68] Exhibit 9, p 4.
Mr Krupka addressed this issue in his written submissions provided after the hearing, and I have ultimately determined that I accept the thrust of those submissions. As Mr Krupka pointed out, the decision of His Honour Justice Madgwick in Abrahams v Comcare[69] is authority for the proposition that a broad and practical approach is to be taken to interpreting a compensation claim form. However it remains the case that an employee is obliged to give meaningful notice of an injury for which they seek compensation.[70]
[69] (2006) 93 ALD 147
[70] SRC Act, s 53.
Mr Mikajlo made no mention of his neck in the 2007 claim form and, aside from Mr Haig, none of the doctors who have examined him have attributed his shoulder symptoms to his neck condition. In my view, Mr Mikajlo’s 2007 claim was for a frank and direct injury to his shoulders, not a degenerative neck condition, or an aggravation of such a condition.
If I had accepted Mr Haig’s opinion, this may have raised a difficult question as to whether Mr Mikajlo’s degenerative neck condition should be regarded as the cause of and an alternative diagnosis for his shoulder symptoms, potentially invoking the Abrahams principle. This issue would have been rendered even more complicated by the fact that a subsequent claim had been lodged with respect to cervical spondylosis. However as I have indicated, I consider that Mr Mikajlo’s shoulder symptoms are attributable to his shoulder pathology, and I regard his cervical spondylosis as a separate and distinct condition.
It follows in my view that the 2007 claim did not embrace a claim for that condition, or any aggravation of it, which has properly been made the subject of a separate claim in 2015. As my jurisdiction is limited to reviewing Comcare’s decision of 18 January 2012 in the context of the 2007 claim, it follows that I have no jurisdiction in relation to Mr Mikajlo’s cervical spondylosis condition or the 2015 claim.
CONCLUSIONS
I have accordingly concluded that the 2007 lifting incident resulted in damage to Mr Mikajlo’s left shoulder, ultimately manifesting as shoulder pathology including subacromial bursitis with impingement which had not been symptomatic prior to the incident. I have also concluded that this condition was ongoing as at June 2010, and although it was not causing ongoing incapacity for duties of the kind he had been undertaking in 2007, it required ongoing medical treatment and also gave rise to a need for limited household assistance.
With respect to Mr Mikajlo’s right shoulder, I have concluded that the damage sustained directly in the lifting incident had resolved by June 2010, and I do not have jurisdiction to consider any overuse condition which developed in the right shoulder as a consequence of the left shoulder injury.
In relation to Mr Mikajlo’s neck condition and any aggravation of that condition in the 2007 incident, I have concluded that this is a separate and distinct condition which was not encompassed by the 2007 claim. Accordingly, I also lack jurisdiction to consider that condition, which has properly been made the subject of a separate claim.
In light of my conclusions, I have decided to vary the decision under review so as to provide that as at and from 23 June 2010, liability for Mr Mikajlo’s left shoulder condition pursuant to ss 16 and 29 of the SRC Act was ongoing. Of course it will be necessary for Mr Mikajlo to submit any receipts for medical expenses or household expenses since that date to Comcare for payment.
COSTS
In view of my decision in his favour, I note that, pursuant to subs 67(8) of the SRC Act, Mr Mikajlo may be entitled to have any reasonable disbursements he has incurred paid by Comcare. As I am unaware as to what expenses Mr Mikajlo may have incurred, if any, I have decided not to make a costs order at this stage. However, it will be open to Mr Mikajlo to seek such an order if he has incurred disbursements in the course of the application.
DECISION
The decision under review is varied so as to provide that as at and from 23 June 2010, compensation liability pursuant to ss 16 and 29 of the SRC Act was ongoing with respect to Mr Mikajlo’s left shoulder only.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean
.......... [Sgd] .........................................
Administrative Assistant
Dated: 25 January 2017
Dates of hearing: 9 and 10 March 2016 Date final submissions received: 29 April 2016 Applicant: In person Advocate for the Respondent: Mr B Krupka Solicitors for the Respondent: Australian Government Solicitor
Key Legal Topics
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Employment Law
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Statutory Interpretation
Legal Concepts
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Causation
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Remedies
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Jurisdiction
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Statutory Construction
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Appeal
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