Moore and Comcare
[2007] AATA 2111
•20 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2111
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2005/189, 2007/3214
GENERAL ADMINISTRATIVE DIVISION ) Re CARMEN MOORE Applicant
And
COMCARE
Respondent
DECISION
TribunalJ.W. Constance, Senior Member
Dr P. Wilkins MBE, Member
Date20 December 2007
PlaceCanberra
Decision 2007/3214
1. In the matter of 2007/3214 the reviewable decision of Comcare made 12 June 2007 is varied to read as follows:
Under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), liability for the right shoulder strain suffered by Mrs Moore arising from her employment by the Australian National University is accepted. As at the date of this decision this injury has not resolved, and up to, and at the date of, the decision Mrs Moore has continued to suffer the effects of the injury.
A 2005/189
2. In the matter of A 2005/189 the reviewable decision of Comcare made 16 May 2005 is set aside.
3. In substitution therefore it is decided that Mrs Moore is entitled to be compensated pursuant to sections 24 and 27 of the Act in respect of the injury being cervico-thoracic musculo-ligamentous strain.
2007/3214, A 2005/189
4. The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made Comcare shall pay the costs of the proceedings incurred by Mrs Moore.
..................................................
J.W. Constance. Senior Member
DRAFT DECISION [3.28 pm]
ADMINISTRATIVE APPEALS TRIBUNAL
By MR J. CONSTANCE, Senior Member
and DR P. WILKINS, Member
Matter Nos A2005/189 and A2007/3214
CARMEN MOORE and COMCARE
CANBERRA, 20 DECEMBER 2007MR CONSTANCE: Please be seated. This is a matter of Moore and Comcare for decision. I can indicate that as well as the formal decision document, we will obtain a copy of the transcript and provide a copy to each party, so you don’t have to make too detailed notes. I can also indicate that because of the amount of evidence in this matter, it’s going to take some considerable time to deliver the decision. If anyone needs to leave at any stage, please feel free to do so, and no offence will be taken, I can assure you. Pardon me. In this matter, Mrs Moore seeks reviews of two decisions made by Comcare. In matter A2005/189, the reviewable decision by Comcare was made on 16 May 2005, disallowing compensation for permanent impairment in respect of an injury to the neck and shoulder.
It is claimed that this injury occurred in 1995 and was caused by her employment as a printer’s assistant at the Australian National University. In matter 2007/3214, the reviewable decision by Comcare was made on 12 June 2007, accepting liability for a right shoulder strain sustained in June – on 16 June 1995, but also determining that this injury had resolved by the end of 1996. In August 1995, Mrs Moore had submitted a claim in respect of a right-shoulder cervico pulled muscle. Comcare accepted liability for an injury, which it described as cervicothoracic musculoligamentous strain.
Comcare has conceded, in our view appropriately, that if it is decided that there is ongoing liability to compensate Mrs Moore in respect of the right-shoulder strain, then this injury should be considered as part of the permanent impairment claim. We shall deal with each decision separately, although the findings of fact obviously relate to both matters. Unless otherwise stated, the findings of fact are made on the basis of the evidence of Mrs Moore. We’re satisfied of the facts found in the balance of probabilities. For the reasons which follow, the decision in relation to the ongoing liability will be varied, and the decision in relation to the permanent impairment will be set aside and a decision substituted for it.
In relation to the matter – then turning to matter number 2007/3214, the review of a decision denying liability for the right shoulder strain, under section 14 of the Safety, Rehabilitation and Compensation Act of 1988, subsection (1) of that section provides that:
…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.
Injury is defined in section 4 of the Act, and the relevant part of that definition for our purposes is that injury means:
…an injury, other than disease, suffered by an employee, being a physical or mental injury arising out of or in the course of the employee’s employment.
There are various provisions that exempt certain conditions that arise from certain facts, but they are not relevant to this decision. The issues for the determination by the tribunal are: (1) did Mrs Moore suffer a strain of her right shoulder arising out of or in the course of her employment; and (2) if so, does she continue to suffer the effects of this injury. Initially, Comcare accepted liability for the strain and it is not argued before us that Mrs Moore did not suffer such an injury. The question before us is whether she continues to suffer the effects of the strain. Turning now to findings of fact, we found Mrs Moore to be an honest witness who did her best to relate a history of this matter, going back over 10 years.
Comcare did not significantly challenge her credibility, but rather challenged her recollection of events. We make the following finding of fact. Mrs Moore commenced employment in the printing office at the Australian National University in 1985. At the time she commenced that work, there was – she had not experienced any problem with either her left or right shoulder or with her neck on either side. The overall work that she performed at the printing office can generally be described as repetitive, although any particular task was not repeated over and over for any particular time.
She did varying tasks but repeated them over a day. She told us, and we accept, that she was doing a lot of collating of paper, a lot of stapling, and back in 1985 she was using a Gestetner machine, which was an old type of duplicating machine, requiring winding of a handle to process the copies. She would also take paper off the shelves, which she said were very high, and she couldn’t reach them comfortably. In fact, it appears from one of the medical reports that Mrs Moore is, in old terms, five feet high, or in modern terms ‑ ‑ ‑
DR WILKINS: 150.
MR CONSTANCE: ‑ ‑ ‑ yes, 150 centimetres. I was going to put it the other way, but I couldn’t think quickly enough. She said that when she reached for paper off the shelves it was above the top of her head, and having retrieved that paper, she would then place it on a bench and feed the paper into her machine – into the various machines. The manner in which she collated paper in the early days was to place the paper on her right hand and pick up sheets with her left and add to that the paper on her right. She also said that she did a lot of folding of flyers and having done that, she would put them in what she described as massive, big mailbags and take them outside to be collected by others.
When asked how she managed to get them out there, she said, “They would be drug out and were very heavy.” It was obviously a very busy work area. Her normal work hours were 8 o’clock in the morning to 4.30 pm. She said that they had an hour for lunch. They also had time for morning tea, but usually didn’t stop. She did not always take the full lunch hour. In 1994, another machine had been installed which did make the work easier, as it did stapling. But even at that time, the paper continued to be delivered on pallets, and it was her practice to take boxes of paper off the pallets. Those boxes contained about five reams, and depending on the height of the stack on the pallet, she reached above her head to retrieve a box.
The boxes of paper would be placed on a trolley, which she then pushed into another room. I should stop at this stage to indicate that others were working with her, but as I said at the outset, Mrs Moore was carrying out these varying tasks on a repetitive basis. In relation to the boxes on the trolley, she said that they would fill – that she would fill a trolley perhaps twice a day, and this would involve the moving of perhaps 40 boxes and sometimes more. Those boxes were then stacked under benches, and the paper in time placed into the photocopying machines. When she used a photocopying machine, she had to lift the glass lid, and again because of her height, she was required to stretch and to lift the lid, put the paper on, and then put the lid back down.
She also used a scanner, which would take similar action on her behalf. Again, that work required her to lift her arms above shoulder height. She also worked with what she described as bricks, or booklets. She would carry those booklets around, sometimes 10 or 15 at a time, place them into a box, stack them into a box, and put the box on the floor. She also used a guillotine to cut paper, and that required her to reach up into shelving to retrieve the particular paper being used. The sheets were heavy and she would slide them out and then carry them to the guillotine. Again, the paper was retrieved at times above head height. The guillotine was about chest height, and she would have to feed the paper into the guillotine with her arms straight out in front of her, and then push the paper into the machine.
She did have times – a step ladder, which she used for the higher levels. She also used a binding machine, which required her to carry booklets from the stapling machine for about five or six metres. The beginning of semesters it was particularly busy, and at times she worked overtime, beginning as early as 6 o’clock in the morning, and working late at night, perhaps every second night and sometimes at the weekend. When asked to describe – or whether the work had increased between 1985 and 1994, she said that it in fact increased. Another task which she regularly undertook was releasing of paper jams in the photocopying machines.
These at times would occur up to 30 or 40 times a day. She would have to operate winders on the machine and then pull the paper out, which she said sometimes was extremely hard to pull. So it is clear to us that the area in which she worked was veer busy, and continually required her to undertake physical work that involved continual use of her arms and very often use of her arms involving reaching above her head and taking weight in executing that movement. Mrs Moore first began to feel pain in her right shoulder in around 1995. She said, and we accept, that it started from her neck. The back of her neck and her shoulder was very sore. She found it hard to lift things, and she was getting pins and needles down her right arm.
She consulted a general practitioner, Dr Dawson, who prescribed her physiotherapy and anti-inflammatory medication. She said the physiotherapy went on for some time, but her neck and shoulder remained sore. In July 1995, Comcare accepted a claim for cervicothoracic musculoligamentous strain. Mrs Moore also had the assistance of a case manager, Ms Lisa Castles, and during 1995 and early 1996 she was placed on restricted duties and have several periods of time off work. She also attended a pain management course. Dr Dawson had prescribed her Tofranil, which she took three times a day, and the relevance which we will refer to later, but in fact we’re satisfied that she has continued to take that medication ever since.
She also was prescribed and took anti-inflammatory tablets, and used an anti-inflammatory cream. In relation to the Tofranil, she said it was helping her a lot in the sense that she could feel the pain but it wasn’t as high:
The pain was sort of a bit numb. It wasn’t as strong as before, so I could sort of cope with it.
That’s a quote from page 40 of the transcript of 29 October 2007. Mrs Moore was supposedly to return to work on light duties, but when she returned it appears that the work that she did did not change dramatically and she continued to undertake much the same tasks. Now, that was in 1996 when she returned to full time duties. An issue has arisen and was particularly relied upon by counsel for Comcare in relation to a period from late 1998 until about October 2000 in which Dr Dawson, Mrs Moore’s general practitioner, has not recorded complaints of ongoing neck and shoulder pain.
When asked in relation to that, Mrs Moore said that and I quote from page 40, through the transcript, the question was:
Did you make continued complaints to Dr Dawson?
The answer was:
Yes, I have and he sort of at the time - I went – he just gave me this. He said stay on your prescription, if it is helping you, just stay. And he asked, “If you need physio again,” he can give me a script for physio again.
Mrs Moore continued to undertake the exercises that she had been prescribed in the pain management course and said that she generally tried to work around the pain. She continued to use the Voltaren gel on and off and used a heat pack. She said that some times she would have a really good day and some times a bad day. She found that when she was suffering pain, instead of doing one particular job a number of times in succession she would change to do some other sort of work and then return to the earlier job. Mrs Moore finally left her employment at the university on 16 December 2004, having continued in the printing office right up until that time.
At the time she left she said that her shoulder was still sore and that that had continued right up to the day when she gave evidence before us. When cross-examined by counsel for Comcare Mrs Moore said that the pain that she suffered was at its worst in 1995 and ’96 and whilst she continued to suffer the pain it was better now than it had been at that time. She said that at present, if she has had a busy week at home or has been doing things in a hurry, without rest, the pain worsens but if she slows down and eases off a bit then the pain plateaus. She described it as going down to a certain level but remaining. She also described from time to time suffering pain that started in her hand and went up to her shoulder.
In relation to the period in which there is no complaint recorded by Dr Dawson, when cross-examined as to that Mrs Moore said that she just went back to Dr Dawson and he kept giving her the medication. The times when she did not go back to Dr Dawson she said it was because the pain was easing. Also during the time that she was still employed at the Australian National University she said that she had concerns about retaining her job. At first she said that she was fairly sure that she had complained to Dr Dawson in the period of 1998 to 2000 but later when cross‑examined, wasn’t so sure, but she insisted and as has been shown by the evidence, that she continued to receive the medication.
I will come back to the particular effects that this injury currently has on Mrs Moore in relation to the permanent impairment claim. Turning now to the medical evidence, Dr Eaton, who is an occupational physician, examined Mrs Moore in June 2004 and again in July 2004 on referral by Dr Dawson. We have in evidence a report from Dr Eaton of 8 November 2004 which is part of exhibit A1 and is document T61 within that exhibit. At page 3 of that report Dr Eaton says:
I’m unable to say that all Mrs Moore’s present complaints are directly related to the injury sustained on 16 June 1995. The various assessments and reports and the expected natural history of the injury suggest that her condition would have gradually resolved over time. However, it cannot be ruled out that the injury has contributed to cumulative trauma of the right cervical brachial region, which has been further aggravated by subsequent events and her work activities.
He also reported that at that time Mrs Moore had mild restrictions of neck movements but he was unable to say that this had occurred specifically due to the incident at work. Dr Eaton reviewed Mrs Moore in August 2007 and in exhibit A5, which is his report of 26 August 2007, he reported as follows:
On the balance of probabilities Mrs Moore sustained a work-related neck and right shoulder injury which became severe on 24 July 1995. From the history the symptoms built up over an extended period of time. The work-related injury on the balance of probabilities significantly contributed to the shoulder pathology including the slap lesion demonstrated in the MR arthrogram dated 23 February 2006. I believe the current pathology in Mrs Moore’s right shoulder injury is related to the cumulative trauma sustained in the workplace which became severely symptomatic in 1995.
Dr Eaton expressed the opinion on the balance of probabilities that the injury resulted from frequent heavy lifting and frequent and repetitive duties. In his opinion Mrs Moore previously and repetitively strained her neck, her right shoulder in the right scapula-thoracic region and that this occurred in the workplace over several years. At the time of his examination in August of 2007 he assessed Mrs Moore as suffering minor restrictions in the movement of her neck.
Dr Eaton also was of the opinion that the medication Tofranil and anti-inflammatories have some value in controlling her condition at the time that he assessed her. Dr Eaton also gave evidence and he was asked about the prescription of Tofranil and said that it was often prescribed purely for pain treatment as well as being an anti-depressant and he found that it commonly could be helpful in people with chronic pain. He confirmed his diagnosis that Mrs Moore had suffered a slap lesion and said that could be caused by raising her arm above shoulder level forcefully and repetitively lifting above shoulder level, forced reaching.
He said that sometimes it’s not entirely clear why it happens but it’s often associated with other lesions of the shoulder. He said in evidence that he believed a cumulative trauma can contribute to the problem significantly, particularly if there are large amounts of activities such as had been described to him and of which Mrs Moore gave evidence to us on daily basis over many years. He said that from the MRI he ascertained there are other lesions in Mrs Moore’s shoulder and they are all associated and all often result from the same sort of activities and incidents.
He said that over a long period of time there may have been days when she lifted more forcefully than on others but that she gave a fairly strong history of many repetitive activities involving the right upper limb and shoulder, that is above the shoulder level. He refers to the fact that Mrs Moore is short in stature and would very often and commonly be over reaching. In his opinion the condition from which she suffers if permanent. He was aware that Mrs Moore did not wish to undergo surgery and he was of the opinion that that was a reasonable decision.
He gave evidence again, which we accept, that when he examined Mrs Moore that she was suffering localised pain in the upper scapula and was clearly very genuinely, extremely distressed. He said it just confirmed what she had told him and that she would have real trouble doing the sort of activities which she had described to him and to which I will refer later in these reasons. They are the every-day activities and activities of daily living.
When asked as to his change in opinion as expressed in the two reports, he said that the information that he received became stronger about the duties and activities that Mrs Moore was doing in 1995 and that led him to believe there was a very strong association with those activities and the injuries which came to a head in June of 1995 and with the subsequent problems. That opinion appears at page 118 of the transcript of 29 October 2007.
In relation to the MRI report of 23 February 2006 which Dr Eaton had considered, he said it confirmed rotator cuff problems and the slap lesion, a supraspinatus tear and there was also a mild scapularis tear as well. In accordance with the arguments later put by Comcare in this matter, Dr Eaton was asked whether it wasn’t a possibility that there had been a recovery from the strain or sprain in 1995/1996 and then another problem had developed at a later point of time. At page 121 of the transcript Dr Eaton said:
You can’t rule that out but I would think when you look at her history and look at the number of years and what she’s done it would be very hard not to suggest that there was a contribution to the development of weakness and degeneration in the tissues which subsequently became very symptomatic again. I think it’s just too much to say that there was no contribution from the previous activity, particularly when you look at what she has done.
He said the strain probably involved the neck, shoulder, scapula region, the inside of the shoulder, which he described as the rotator cuff pathology and in fact it was a strain of all the areas. In relation to pain further down her arm Dr Eaton gave evidence that over a lot of years of repetitive injuries involving the shoulder, it may well have had an impact on her forearm and wrist as well and may have been an issue for her combined with the other things, by all of the lifting she did and the repetitive work that she was doing.
Dr Dawson has been a general practitioner since 1967 and Mrs Moore’s general practitioner since 1975. He gave evidence in relation to his clinical notes, which are in evidence before us. He was asked in relation to an entry of 24 July 1995 in which he recorded that Mrs Moore was suffering pain in the right shoulder girdle posterior scapula region and he prescribed anti-inflammatory drugs. Then on 3 August 1995 Mrs Moore again consulted him complaining of pain in the right shoulder trapezius and rhomboids, being the shoulder blade.
On 14 August the same year Dr Dawson had recorded Mrs Moore’s attendance and that she was no better. On 21 August he recorded that she was slowly improving but she was to continue with physiotherapy from Ms Keddie and exhibit A7 before us is a copy of a letter from Ms Keddie, the physiotherapist, to Dr Dawson of 9 February 1996 and in that letter Ms Keddie reported that the cervical rhomboid was generally stiff, the right shoulder rhomboid abducted produced pain in the right scapula region and the right rhomboid tender.
On 24 May 1996 Dr Dawson recorded that Mrs Moore was good on Tofranil. He was asked in relation to the prescription of this drug. He said it has a pain reducer action, not as a pain killer. It’s used by all the pain clinics to modify pain perception and thus reduce narcotic or analgesic use. It is usually used for chronic pain conditions. He also reported that in November of 1996 Mrs Moore had been off Tofranil for a week and the symptoms had immediately flared up. When asked why he continued to prescribe Tofranil he said that it was controlling her symptoms and that he certainly wouldn’t prescribe Tofranil without good reason.
When it was put to him that Mrs Moore had given evidence of her pain continuing over a two year period from 1998 to late 2000 when it appeared that he had not recorded that complaint. He said that absolutely he would not doubt her evidence in that regard despite his lack of recording. In October of 2000 Dr Dawson reported that Mrs Moore had suffered pain in her arm, a history of aching, pain in the right scapula region over the last two weeks. No specific injury. There’s also pain in the right forearm and she reported that it felt as though it was a flare up of a problem from 1995.
We take that to indicate that Mrs Moore was indicating to Dr Dawson that the pain that she suffered in 2000 was the same that she had suffered back in 1995. Dr Dawson said it was consistent with what he had diagnosed back in 1995 being a soft tissue injury, which was becoming relatively chronic over a period of time. In his opinion the work conditions in 1995 and 1996 contributed to her right shoulder pain. Dr Andrews, a neurologist, first examined Mrs Moore in 1996 on referral from Dr Dawson.
There are several reports from Dr Andrews before us and they are contained in exhibit R3. The effect of Dr Dawson’s [sic] report and his evidence was that he could ascertain no nerve damage in the case of Mrs Moore and he also reported that a bone scan in 1996 was normal for the neck, shoulders, arms and hands but there was, in his opinion, some soft tissue injury damage around the shoulder and upper neck. It was put to Dr Andrews that if there had been continuing repetitive duties after had examined her in 1996 which involved lifting above her head and working long hours without rest breaks would there be likely to be cumulative trauma of that soft tissue injury and Dr Andrews agreed with that proposition. Asked whether the symptoms were consistent with the repeated trauma leading to a soft tissue injury in and around the shoulder, he said:
Around the shoulder I would definitely agree, yes.
That is a quote from page 173 of the transcript. He was also asked whether he would expect that Mrs Moore would continue to suffer symptoms in the form of pain in her shoulder if she had suffered some form of soft tissue injury and continued to do the same sort of work which she had done previously and the doctor agreed with that proposition. When asked whether, if Mrs Moore had stopped work or when she stopped work would he expect that the condition would resolve, and that condition being referred to being the ongoing pain, he said that often not. He would not always expect the pain to go away after that sort of duration.
He said that he had formed a pretty strong impression that her pain was paracervical and related to the shoulder blade, and that having read the material provided to him, he was of the opinion that that had been the situation right from the beginning. Dr Woods, an orthopaedic surgeon with particular expertise in shoulder surgery, assessed Mrs Moore on referral from Dr Dawson in 2006. In a letter to Dr Dawson, which is exhibit R4, he said that in his opinion there was no significant shoulder pathology, and that her pain pattern is more one of paracervical muscle and soft tissue pain, and that it is not surprising that Tofranil is helpful for this. He said that the pain pattern is often seen but difficult to attribute on an anatomical basis.
He did not believe that any operative intervention would improve Mrs Moore’s symptoms. Dr Woods also gave evidence, and said that the symptoms were consistent with a repeated trauma, leading to a soft tissue injury, and also said that he would not necessarily expect the pain to have gone away when work was ceased. Dr Billett is an orthopaedic surgeon, and he assessed Mrs Moore in October of 2005 at the request of Comcare’s solicitors. He reassessed her in August of 2006, and several reports from Dr Billett are in evidence before us, in exhibit A2, at pages 30 to 31. I quote from a report of Dr Billett of 17 August 2006. He reported, and I quote:
She displayed a varying range of active neck movements, flexion reached 40 degrees (normal: 45 degrees), extension 30 degrees (normal: 45 degrees), lateral flexion 40 degrees (normal: 45), and rotation to 70 (normal: 80 degrees). She complained of discomfort throughout all movements.
He also reported that Mrs Moore complained of constant daily pain in her neck, radiating to the right shoulder, accompanied by intermittent pain down the right arm to the forearm, occurring during the course of the week, with intermittent daily paresthesia in the right arm. He said that in relation to the right shoulder, there is definite evidence of a SLAP lesion, and this is referable to her employment. He said that Mrs Moore, being of short stature, often had to work above head height to obtain paper from high shelves, which in his opinion led to the pathology noted in the right shoulder. When Dr Billett gave evidence, he said that having viewed the MRI it indicated that Mrs Moore has three pathologies in the shoulder.
The first is the SLAP lesion, the second is the two muscles: two of the muscles have a partial tear, and thirdly that there is marginal tear of the subscapularis. When asked whether if Mrs Moore continued to do the same type of duties as she had done previously in her employment would that continue to aggravate her condition, and he said that it would. He said that he would not be surprised at all that she, having continued in those duties, that she would now have the injury which she had indicated she has today. It was put to Dr Billett in cross-examination that the results of the MRI might well be entirely consistent with age-related degeneration.
Dr Billett did not agree with this proposition and said that the MRI would pick up easily if the muscles were attenuated, and that was not the case in the MRI results that he had considered. He did disagree with Dr Eaton that the – the proposition by Dr Eaton that the shoulder problem was interrelated with the neck problem. He said that if the pathology is linked to the shoulder alone, the movements will decrease. However, it did appear that it was more the interrelationship of the two conditions with which Dr Billett disagreed rather than the possibility of pain coming separately from those conditions.
Dr Burke, a consultant occupational physician, assessed Mrs Moore at the request of Comcare’s solicitors in October 2005. He provided a report of 17 October 2005, which is part of exhibit A2. And at page 15 of exhibit A2, he reported that the diagnosis was of probable cervicothoracic ligamentous strain, with possible aggravation of pre-existing degenerative changes in the cervical spine. He said, and I quote:
In my opinion, it is likely that the injury in question contributed to the development of symptoms in her right shoulder. However, in my opinion, any injury was short-term and temporary and is now resolved.
Again, I quote:
In relation to her neck and lower back, in my opinion, any underlying degenerative change is likely to be due to constitutional factors and unrelated to any work-related factors.
When Dr Burke gave evidence, he said that in his opinion, it is likely that some of the MR arthrogram findings were present when he had examined her, but they were not causing any clinical symptoms or signs. He said that the findings on the MR arthrogram were not incompatible with wear and tear and long-term degenerative change. He said that in his opinion that was the most probable explanation for her ongoing symptoms. He said that the location of the pain that had been indicated by Mrs Moore between the cervical spine and the shoulder blade, was consistent with all of the reports which dated back to around 1995/1996, as most of the pain was reported in that particular area.
He concluded on the basis of experience that it’s more likely that pain was related to neck and shoulder girdle pathology rather than specific shoulder, as in the joint, shoulder joint, pathology. When asked as to the description of symptoms of pain coming from the hand, going up the limb, he said it would be necessary to look for a causal diagnosis as to where the pain originated from, whether it was the wrist or hand or forearm. Dr Burke was cross-examined by counsel for Mrs Moore at some length about the history which he had in informing his opinions.
Dr Burke confirmed that, in his opinion, there were no significant ongoing symptoms at the time that he examined Mrs Moore, and when asked what he meant by significant, he said, significant enough to cause discomfort or significant enough to affect any activities which she may be performing. He said that when he examined Mrs Moore, she did not describe any significant symptoms. When asked whether he had asked her what she was doing for her shoulder, he said, no, he had a set of pro forma questions which he asked and which listed these answers and the sorts of symptoms, and that no significant symptoms were described.
It appears to us that Dr Burke did not specifically question Mrs Moore as to her symptoms. He was also asked as to his understanding as when her condition had substantially abated, and he said that his understanding was it was around six months after the original onset. He was also asked as to whether he was aware of evidence that she was on restricted duties, and if so, would that have been a relevant factor to take into account. He said that he wasn’t told of that. When asked whether it would have been relevant to have considered it, he said, yes, it would have been.
Also asked whether it would have been relevant had he been aware that Mrs Moore was continuing to do exercises, to use heat packs and gel and to continue to use Tofranil as a regime of controlling the shoulder area of pain, and he said, yes, that would have been relevant. He agreed that it would have been useful information to have known that after the period when he believed her condition had abated, that she was on continuing duties and agreed it would have been useful to have known the nature of those duties. Considering all of the evidence, we’re satisfied that since 1995 Mrs Moore has continued to suffer pain in her right shoulder and the right side of her neck.
We accept her evidence, she has suffered this pain continuously, although she may have had good days and bad days. Even if there were days on which Mrs Moore was pain-free, these were not of significant duration, and certainly not of such significance as to cause us to find that there had been any periods of relevance during which she was symptom-free. We accept her evidence that she considered that she obtained prescriptions of Tofranil from Dr Dawson for her shoulder and neck pain. It may also have been for back pain, which she developed after the shoulder and neck pain.
The fact that Dr Dawson does not have a record of complaints of shoulder and neck pain for a period, as I said, from late 1998 to late 2000, and even assuming that Mrs Moore did not complain during that period, it does not change our conclusion. We rely on the evidence of Drs Eaton, Dawson, Andrews, Woods and Billett in reaching the conclusion that Mrs Moore had continued to suffer the pain described, and that this pain is a consequence of a strain of the shoulder/neck area in 1995, and the continuing duties which she performed as part of her employment. We prefer the evidence of these practitioners to that of Dr Burke.
Dr Burke saw Mrs Moore on only one occasion, and assessed her for a number of injuries during the period of the assessment. We’re satisfied that he did not have all of the relevant information available to him, informing the opinions that he expressed. For these reasons, the first decision under review will be varied in a manner which I will set out at the conclusion of these reasons. Turning now to matter A2005/189, the permanent impairment claim, section 24 of the Act sets out the provisions relating to compensation for injuries resulting in permanent impairment. Section 24(1) provides:
Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of that injury.
Subsection (2) provides that for the purpose of determining whether an impairment is permanent:
Comcare shall have regard to: (a) the duration of the impairment, (b) the likelihood of improvement in the employee’s condition, (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment, and (d) any other relevant matters.
Other relevant subsections of section 24 are subsection (5), which says:
Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved guide –
and subsection (6), which provides that:
The degree of permanent impairment shall be expressed as a percentage.
When one looks at the guide to assessment of the degree of permanent impairment, which is the guide referred to in the Act, it’s important to note that it provides that, quote:
A valuation of a whole-person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.
The activities of daily living are set out in the glossary to the guide, and I quote:
Activities of daily living: activities which an individual needs to perform to function in non-specific environment, ie to live. The measure of activities of daily living is a measure of primary biological and psychosocial function. They are: the ability to receive and respond to incoming stimuli, standing, moving, feeding, includes eating but not the preparation of food, control of bladder and bowel, self-care (bathing, dressing etcetera), and sexual function.
Turning to the evidence which Mrs Moore gave and which we accept as accurate evidence, she said that the present disabilities which she suffers as a result of the pain that she experiences is that she had difficulty brushing her hair, to the extent that she had her very long hair cut short. She had difficulty using a hairdryer, as she couldn’t hold it properly. She had difficulty in fixing her bra. And in relation to household duties, she had difficulty making beds and peeling vegetables, using household appliances such as an eggbeater. She was unable to vacuum a whole room in one go, she would do that in stages. Similarly, she would need to stop and start when mopping a floor.
She found hanging washing on a line really hard. She had difficulties lifting a washing basked of clothes. And in relation to gardening, she had difficulty weeding, spraying and pruning because she couldn’t hold the implements properly. She said that she cannot drive a car for a long time, as she needs to rest because her arm gets very sore. She has two dogs and she cannot take them for a walk because they pull and hurt her arms. She’s unable to hold her arms out in front of her for a considerable period of time. And on further personal care activities, she has difficulty showering and she doesn’t use a hand shower any more as she used to, and she has difficulty with toileting activities. She cannot sleep on her shoulder.
She has to sleep on her back, and sometimes her fingers tingle. The result of this is that she tends to use her left hand more than she did in the past. She says that she has difficulty writing or using a computer for very long, because her shoulder hurts and she gets pins and needles in her shoulder and spasms. She uses two hands to lift objects when she previously would have used one. And around her hobby farm she has difficulty in activities such as pushing a wheelbarrow or lifting a bucket of water. She was asked in relation to having surgery and having discussed that with Dr Eaton, and she said that she had decided that she did not wish to do that.
She also indicated that she had difficulty squeezing water out of clothing, in sewing, the motion of sewing, using a needle and thread. She had to stop and then start again, and activities such as carving meat and opening a jar caused her problems. And in cross-examination she said that she could write for about eight to 10 minutes. Looking now to the assessment of permanent impairment based on those disabilities, which, as I’ve indicated, we accept that evidence as accurate, if you – we have considered table 9.4 in the guide, which is – relates to limb function of the upper limb.
And we are satisfied that on the basis of the disabilities which we have found exist in Mrs Moore’s case that she can use her limb for self-care, but has difficulties grasping and holding, and on that basis we are satisfied that there is a whole person impairment of 20 per cent under table 9.4. The reason for this is we are satisfied that whilst Mrs Moore can undertake many of those activities, she does so with the experience of pain, and in all the circumstances this comes within the expression of difficulty. Our decision in this regard is in accordance with the decisions of Comcare v Fiedler, F-i-e-d-l-e-r, (2001) FCA 1810, and Comcare v Moon (2003) FCA 569.
We’ve also considered table 9.6 of the guide, which relates to the musculoskeletal system, and particularly the spine. Based on the evidence of Dr Eaton, we’re satisfied that Mrs Moore suffers minor restrictions of movement in cervical spine, and in accordance with the table, that gives a 5 per cent whole person impairment, 5 per cent being ascribed to minor restrictions of movement. We also rely on the evidence of Dr Billett, who found that there were restrictions in neck movement when he examined Mrs Moore in August of 2006, and that appears from exhibit A2, page 26. On the basis of the medical evidence already referred to, we are satisfied that these restrictions are a result of the compensable injury.
Dr Billett specifically linked the difficulty in grasping and holding to Mrs Moore’s shoulder condition. Other practitioners, notably Dr Burke, found that there was no restriction in his opinion, so there was no restriction of movement, but we take this into account on the basis that this was his observation on only one occasion and on a particular day. Taking into account the specific matters referred to in section 24(2) of the Act and the evidence of Mrs Moore and the medical practitioners, we are satisfied that the impairments suffered by Mrs Moore are permanent in a sense of:
…likely to continue indefinitely –
which is the definition in section 4 of the Act. We’re satisfied that she has undertaken all reasonable rehabilitative treatment. Even though she has not undergone surgery, this is properly a matter for Mrs Moore to make the choice. There is an issue as to whether this is a case of two disabilities from one injury or two separate injuries. In this case in practical sense, it makes no difference, because the result in both cases give a 15 per cent whole person impairment whether you use the combined tables or simply add them. Adopting a common sense approach, in this case it is appropriate to assess Mrs Moore’s whole person impairment as arising from two impairments resulting from the one injury, namely a strain of the area of her right shoulder and neck. This is an accord with the evidence of Dr Eaton, and I quote:
The strain probably involved the neck-shoulder-scapula region, the inside of the shoulder. We were talking about the rotator cuff pathology, the whole, all of the areas, if you like.
And that’s from page 123 of the transcript of 29 October 2007. Also in his report of 26 August 2007, Dr Eaton stated, and I quote:
Symptoms can overlap, and the exact source of individual aches and pains cannot be easily determined.
The decision denying liability to compensate Mrs Moore in respect of the injury resulting in permanent impairment will be set aside, and a decision made in substitution. The decision of the tribunal therefore, which will be issued in formal document, is as follows:
(1)In matter 2007/3214, the reviewable decision of Comcare, made 12 June 2007, is varied to read as follows: Under section 14 of the Safety, Rehabilitation and Compensation Act 1988, liability for the right shoulder strain suffered by Mrs Moore arising from her employment by the Australian National University is accepted. As at the date of this decision, this injury has not resolved, and until and at the date of this decision, Mrs Moore has continued to suffer the effects of the injury.
(2)In matter A2005/189, decision of Comcare, made 16 May 2005, is set aside.
(3)In substitution, it is decided that Mrs Moore is entitled to be compensated pursuant to sections 24 and 27 of the Act, in respect of the injury, being cervicothoracic ligamentous strain.
(4)The parties have liberty to apply within 14 days in relation to costs. Should such an application not be made, Comcare should pay the cost of the proceedings incurred by Mrs Moore.
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