Morales and Comcare

[2007] AATA 1198

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2007] AATA 1198

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2005/225, A2005/344

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ISABEL MORALES

Applicant

And  COMCARE

Respondent

DECISION

Tribunal Mr J.W Constance, Senior Member

Date30 March 2007

PlaceCanberra

Decision

1.     In matter A2005/344 the reviewable decision of Comcare made 1 November 2005 is set aside.

2. In substitution for the decision set aside in matter A2005/344 it is decided that since 25 June 2005 and at the date of this decision Comcare is liable to pay compensation to Ms Morales pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury of cervico-brachial pain suffered on 19 November 1998.

3.     In matter A2005/225 the reviewable decision of Comcare made 19 July 2005 is set aside.

4.     In substitution for the decision set aside in matter A2005/225 it is decided that since 10 June 2005 and at the date of this decision Comcare is liable to pay compensation to Ms Morales for acupuncture treatment that it was reasonable for her to obtain in relation to the injury of cervico-brachial pain suffered on 19 November 1998.

5.     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 Ms Morales.

…................................................

J.W Constance, Senior Member

CATCHWORDS

COMPENSATION – Commonwealth employees – Lower back and shoulder/upper arm injury – Comcare ceased liability as shoulder injury had resolved- Whether back injury formed part of the claim – Whether back injury had been before the decision maker upon review - Whether entitled to incapacity payments - Whether treatment obtained in relation to the injury

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 19

Telstra Corporation Ltd v Barrow (1994) 19 AAR 523

Abrahams v Comcare [2006] FCA 1829

Commonwealth of Australia v Borg (1994) 20 AAR 299

REASONS FOR DECISION

Mr J.W Constance, Senior Member
30 March 2007

INTRODUCTION

1.      From January 1999 until June 2005 Comcare paid compensation to Ms Morales in respect of a sprain of her right shoulder and upper arm which she suffered in November 1998 whilst employed as a Laundry Assistant by Totalcare. In June 2005 Comcare ceased payment on the basis that Ms Morales no longer suffered from the effects of the injury.  In matter A2005/344 Ms Morales seeks a review of this decision.

2.      In matter A2005/225 Ms Morales is seeking a review of a decision to refuse compensation for acupuncture treatment for her arm and shoulder pain.

3.      For the reasons which follow I am not persuaded that there has been a change in any of the circumstances which initially entitled Ms Morales to compensation.  Comcare’s decisions under review will be set aside, and substituted by the decision that Ms Morales is entitled to the compensation sought up to and including the date of this decision.

FACTS

4.      Unless otherwise stated the following findings of facts are based on the evidence of Ms Morales.  I am satisfied of these facts on the balance of probabilities.

5.      Ms Morales is 52 years of age. She migrated to Australia with her family in 1984. Shortly after she arrived in Australia she obtained a position as a Laundry Assistant in a laundry which is now operated by Totalcare. At the time it was operated by the Health Commission. She described herself as "normal, energetic and enthusiastic to start work in Australia" when she commenced working as a Laundry Assistant.  She had no problems with her shoulders at that time.

6.      Ms Morales’ first job was sorting freshly-washed wet bed linen and towels. The washing was dumped onto a large revolving disc and Ms Morales used a stick with a hook on the end to pull the items towards the edge of the disk.  She untangled the items and sorted them into separate trolleys. Ms Morales would then push the trolleys to the ironing machines where she would shake out each individual item (which was still wet) and feed it into a series of rollers in the appropriate ironing machine. The rollers on the ironing machine were about chest height. There is no doubt that this was heavy work for Ms Morales.

7.      For about one year in 1990/1991 Ms Morales worked at a conveyor belt from which she sorted dirty clothing.  This involved her reaching above her head to untie the knots on bags of clothing and then tipping the contents onto the conveyor belt.  Again this was hard work and at times she was required to lift a bag of clothing, weighing about 25 kg, back onto the hook from which it had fallen.

8.      In 1991 Ms Morales suffered soreness in her left shoulder and she had some weeks off work.  She returned to light duties in the sewing room and remained on these light duties until early in 1998.  These light duties included carrying bags of clothing approximately 1m high and weighing approximately 10kg.  This particular task was performed about twice per hour.  The rest of the time Ms Morales's spent mending blankets. This required her to hold up the blankets to look for holes.

9.      In 1998 Ms Morales returned to normal duties. By this time the disc was no longer in operation, but Ms Morales was still required to separate clothing and to undertake ironing duties. To do this she needed to remove items from a trolley by pulling them out and, at the same time, disentangling them. She was also involved in folding clothes and loading them into trolleys.

10.     As Ms Morales continued to suffer pain in her left arm after 1991 she used her right arm more than she had previously.  In 1998 she felt pain in her right arm, starting on the top of her shoulder and spreading downwards. At times it started in her neck. Ms Morales first experienced this pain whilst working in the sewing room and it continued, and worsened, when she returned to her normal duties. Ms Morales temporarily ceased work by reason of this condition in December 1998.

11.     On 11 January 1999 Comcare accepted liability for sprain of Ms Morales’ right shoulder and upper right arm.  The accepted date of injury was 19 November 1998. Since that time Ms Morales has been on light duties, 18 hours per week, working Monday, Tuesday, Thursday and Friday.  The light duties work has involved folding hand towels, packaging face washers and at times sewing.  She has a break of 10 minutes in each hour.

12.     Ms Morales suffers pain in her right shoulder most of the time, especially at night. She takes medication prescribed by her general practitioner for pain relief.  She also takes a hot bath and uses hot pads to relieve the pain.  The pain restricts her undertaking household tasks such as washing and it prevents her from vacuuming.

13.     In cross-examination Ms Morales agreed that she had experienced pain in her right shoulder when working in the sewing room before 1998. She experienced this pain when using a lever with her right hand. The pain became "very bad" in November 1998 and has worsened since. [1]

[1] Transcript 31.8.06 pp-58-59.

14.     Ms Morales also said that in about 1999 the type and location of the pain which she suffered changed.  In November 1998 she suffered very sharp pain from her ear down her neck, into the top of her shoulder and all around her upper arm.[2] About a year later the pain spread down her arm into her hand but was slightly less severe than it had been previously.

[2] Transcript 31.08.06 pp-61,62.

Medical evidence

15.     There have been a number of images and scans of Ms Morales' right shoulder.[3] The results are as follows:

I.    24/03/99 x-ray: degenerative change present in the acromio-clavicular joint;

II.    24/03/99 ultrasound: rotator cuff normal and no evidence of a significant rotator cuff injury; small amount of arthritic change in acromioclavicular joint;

III.    27/05/99 MRI: significant degenerative changes of the acromioclavicular joint without evidence of rotator cuff abnormality;

IV.    24/03/00 regional bone scan: increased isotope uptake related to the right acromioclavicular joint;

V.    29/07/05 x-ray: degenerative changes seen at the acromio-clavicular joint

VI.    04/08/05 ultrasound: features are in keeping with a full thickness tear of the anterior aspect of the supraspinatus tendon;

VII.    27/6/07 arthrogram: there is a full thickness tear of the supraspinatus tendon.

[3] Ex. R2.

16.     Dr Main has been Ms Morales' general practitioner since 1984.  He has been qualified as a general practitioner since 1979.  When Ms Morales consulted him on 19 November 1998 complaining of pain in her right shoulder he diagnosed her as suffering a soft tissue injury which included right deltoid sprain and trapezius sprain which were not consistent with any of her past presentations.  She had restricted movement in the right arm and was suffering from arthritis of the right acromio-clavicular joint, a long-standing tendonitis of the right shoulder and pre-existing chronic brachial regional pain. [4] In his view these conditions were contributed to by Ms Morales’ employment which has accelerated the degeneration of her shoulder.  He is also of the opinion that she now suffers chronic cervico-brachial amplified pain. [5]

[4] Transcript 31.8.06 pp-89, 100.

[5] Transcript 31.8.06 p-104.

17.     At the request of Comcare Ms Morales was assessed by Dr Woods, Orthopaedic Surgeon, on two occasions in 1999.  In August 1999 Dr Woods made a diagnosis of “soft tissue strain of the right shoulder and cervical region.” [6] He referred her for further physiotherapy. When he reviewed Ms Morales in November 1999 she reported that she had experienced improved movement in her shoulder but no alteration in the level of pain. In the opinion of Dr Woods, her symptoms were consistent with cervico-brachial pain.

[6] Ex.A7.

18.     The reports of Dr Woods were tendered by consent.  He did not give evidence.  In his report of 23 June 2000[7] Dr Woods stated:

“I believe that the condition that Mrs Morales currently suffers in the right upper limb is of cervico-brachial pain.  There is radiographic evidence of degenerative arthritis of the acromioclavicular joint which may account for some, but by no means all, of her symptoms.

As I have stated above I believe that the right upper limb pain of which Mrs Morales complains is likely to have had its origin in some form of soft tissue overload due to repetitive use of the right arm, particularly for lifting overhead."

[7] Ex.A8.

19.     In 2001 Dr Main referred Ms Morales to Dr Dunlop at the Canberra Hospital Rehabilitation Service. Dr Dunlop assessed Ms Morales in October 2001 and viewed the MRI scan and x-rays of the right shoulder.  A report by Dr Dunlop of 15 October 2001 was tendered by consent.[8] In Dr Dunlop's opinion, the right shoulder pain being experienced by Ms Morales was entirely consistent with arthropathy (disease) of the right acromioclavicular joint. He stated that he had no reason to question Ms Morales' indication that her work aggravated her right shoulder pain.

[8] Ex.A6.

20.     Ms Morales was assessed by Dr Le Leu, Consultant Occupational Physician, in February 2000.  This assessment was at the request of Comcare.  Dr Le Leu’s report of 18 February 2000 was tendered by consent.[9] Dr Le Leu did not give evidence. At the time of the assessment Ms Morales complained of pain in the deltoid region of her right shoulder and the adjacent section on her neck.  In the opinion of Dr Le Leu, the right shoulder pain may have related to the degenerative changes in Ms Morales’ acromioclavicular joint and that at the time of the assessment Ms Morales' employment had ceased to be a contributing factor. He was also of the opinion that she was able to undertake light work in the laundry but should avoid heavy pushing, pulling, lifting and heavy repetitive movements with either arm.

[9] Ex.R4.

21.     Dr Griffith, Consultant Surgeon, assessed Ms Morales on 7 December 2005 at the request of her solicitors.  On 16 December 2005 he reported that, on the basis of Dr Main’s recorded findings, his opinion was that Ms Morales suffered a musculoligamentous strain of the right deltoid muscle on 19 November 1998 which must be considered to have now resolved. [10] His view is that prior to November 1998 Ms Morales suffered:

·     recurrent musculoligamentous strain of the shoulders and shoulder girdles bilaterally;

·     periodic myalgia of variable intensity;

·     epicondylitis of the elbows.

[10] Ex.A1. p.8.

Further in his opinion, the continued performance of her work activities (albeit less demanding than previously) had contributed to the development of a number of conditions including right shoulder tendonosis, right shoulder subacromonial bursitis with impingement, right cervical and cervicodorsal myalgia and repeated aggravation of thoracic spondylosis. Dr Griffiths gave evidence and confirmed these opinions.

22.     Dr Stevenson, Consultant Physician, assessed Ms Morales on 26 April 2005 at the request of the solicitors for Comcare. Dr Stevenson gave a report of his assessment dated 28 April 2005 [11] and gave evidence.

23.Dr Stevenson reported that:

“There is no musculoskeletal or neurological pathology to account for her complaint.  Any injury was speculative or notional......  There may well have been non-specific discomforts and short-term strains in her work.  The natural history of true soft tissue strain is resolution in days or weeks. Complaint of persisting and indeed worsening pain for months and years requires explanation in non-medical factors.”

[11] Ex.R3.

In giving evidence Dr Stevenson stated that forcible repetitive overarm work appears to be the risk factor for shoulder in impingement.[12] He referred to critical reviews which had been carried out in support of his view.  One of these reviews was done at the request of the British Industrial Injuries Council by the British Orthopaedic Association.  Dr Stevenson did not agree with the diagnosis by Dr Griffith that Ms Morales suffered bursitis with impingement.

[12] Transcript 1.9.06 p-8.

24.     In May 2005 Ms Morales was assessed by Dr Talbot, Consultant Orthopaedic Surgeon.  This assessment was carried out at the request of Comcare.  On 25 May 2005 [13] Dr Talbot reported that he did not consider that Ms Morales suffered from an identifiable medical condition affecting her right upper limb.  In his opinion there was no organic diagnosis to explain her symptoms. Dr Talbot gave evidence and confirmed these opinions.  He stated that Ms Morales’ complaints of pain were far more widespread than would be expected from degenerative change in the acromio-clavicular joint.[14]

[13] Ex.R1.

[14] Transcript 31.8.06, p-114.

25.     In cross-examination Dr Talbot agreed that Dr Woods was an experienced orthopaedic surgeon, specialising in the treatment of shoulders and stated that he would defer to the opinion of Dr Woods.  He also agreed that persistent heavy duties can cause numerous strains of the shoulder which in turn can cause tendonitis, inflammation of the bursa and inflammation of the shoulder joint itself, all of which can result in long-standing pain.[15]

[15] Transcript 31.8.06, p-117.

26.     Dr Talbot was of the view that Ms Morales’ shoulder could not have been injured as claimed whilst she was on light duties.  However the Doctor was unaware that Ms Morales had returned to full duties in 1998.  He agreed that the performance of heavier duties might have been more likely to cause her shoulders to be painful.[16]

[16] Ranscript 31.8.06, p-119.

STATUTORY BACKGROUND

27.     Subsection 16 (1) of the Act provides:

“Where an employee suffers from an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines it appropriate to that medical treatment."

28.     Subsection 19 (2) of the Act provides:

“Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated……”

ISSUES FOR DETERMINATION

29.     Counsel for Ms Morales has proposed that the question to be decided is "does the employee have an injury which is causally related to or materially contributed to by her employment?"  He referred me to the statement of the Federal Court in Telstra Corporation Ltd v Barrow (1994) 19 AAR 523:

“The Tribunal is to be guided by equity, good conscience and the substantial merits of the case."

30.     In my view, to state the question in these terms is to state it far too widely.  Whilst the Tribunal is to be guided by the principles referred to by the Federal Court this does not mean that the Tribunal can make a determination as to Comcare’s liability for an injury whenever it has before it an application to review a decision that an applicant is no longer incapacitated as a result of a previously accepted injury.  To do so would be contrary to the three-tier decision-making process clearly set out in the Safety, Rehabilitation and Compensation Act (1988). What the Tribunal must consider is the injury or injuries of which Ms Morales has given notice to Comcare and in respect of a claim for compensation has been made.

31.     In construing a notice of injury “a broad, generous and practical interpretation should be made…….”Abrahams v Comcare [2006] FCA 1829 para.18. This statement of principle is equally applicable to the interpretation of a claim for compensation.

32.     The Accident Report completed by Ms Morales on 13 December 1998[17] described the injury as “pain in right shoulder/upper arm.”  The medical certificate of 10 December 1998 [18] by Dr Main (which was provided to Comcare) referred to the injury suffered by Ms Morales as “right deltoid sprain with right arm regional pain response” (emphasis added). The Claim for Rehabilitation and Compensation dated 14 December 1998 [19] described the diagnosis as “deltoid sprain with right arm regional pain”.  The report by Totalcare to Comcare of 16 December 1998[20] referred to Ms Morales experiencing pain in her “neck/shoulder/arm”. A Workplace Assessment carried out on 23 December 1998[21] contained the following:

[17] Document T6.

[18] Document T5.

[19] Document T3.

[20] Document T7.

[21] Document T11.

“Ms Morales reports experiencing:

1. Headaches due to the pressure.

2. Right arm and shoulder pain.

3. Long-standing back pain particularly in the upper back.

4. Prickling sensations on the inside (velar) surface of her forearm.

5. The left shoulder pain returning from previous injury.

6. She had difficulty sleeping before commencing taking medication.

7. Depression due to pain."[22]

[22] Document T11.

33.     Although the letter from Comcare acknowledging Ms Morales’‘ claim referred to a claim for “deltoid sprain with right arm regional pain”,[23] the letter accepting the claim (dated 11 January 1999) referred only to “sprain of the shoulder and upper arm (right)”.[24]  However it is not the description chosen by Comcare which determines the injury for which compensation has been claimed.  In this case I am satisfied that the description of the injury by Ms Morales and others in the documents referred to clearly put Comcare on notice of a more extensive injury than a sprain of the arm and shoulder.

[23] Document T9.

[24] Document T13.

34.     Between the time of the initial claim for compensation was lodged and the time the decision that Comcare was no longer liable to make ongoing compensation payments (the reviewable decision) was made (4 January 2005), Comcare received a number of further notifications that indicated that Ms Morales was suffering a regional pain syndrome and that her condition was persisting.[25] In particular, reports of 31 January 2000[26] and 2 March 2000 [27] referred to Ms Morales’ suffering cervico-brachial pain caused by her employment.

[25] See documents T17, T22. T42, T47, T51 and T57.

[26] Dr Kellett,T47.

[27] Dr Woods, T57.

35.     On the basis of the documents referred to in the preceding paragraphs I am satisfied that in the claim for compensation lodged by Ms Morales she claimed compensation for a regional pain syndrome in her right arm, shoulder and neck and that in later documents this diagnosis was extended to cervico-brachial pain syndrome.  In view of the original claim I am satisfied that the later description of the injury simply provided “a better understanding of as claim made”  rather than indicating “that a different injury is being asserted.” [28]

[28] Abrahams v Comcare (ibid.)

36.     In Commonwealth of Australia v Borg (1994) 20 AAR 299 at 307, the Full Court of the Federal Court was dealing with the Act in force prior to the present Act but the principle stated by the Court is applicable to the present legislation. In that matter Jenkinson J. said that a decision that compensation is not payable (in a situation where it has been paid previously) should not be made unless the decision maker “was persuaded that one of the entitling circumstances had, on or before [the date of the decision], ceased to exist."

37.     For these reasons I am of the view that the issues for determination are:

(a)   am I persuaded that since 25 June 2005 Ms Morales has not been partially incapacitated for work as a result of the sprain of her right shoulder and upper right arm and/or right cervico-brachial pain, being the injury suffered by her on 19 November 1998; and

(b)   am I persuaded that since 25 June 2005 there has been no medical treatment which it has been reasonable for Ms Morales to obtain in relation to the injury?

DETERMINATION OF THE ISSUES

38.     I am satisfied on the balance of probabilities that from 30 June 2005 until the date of this decision, Ms Morales has not been partially incapacitated for work, nor has there been medical treatment which it has been reasonable for her to obtain, as a result of the sprain of her right shoulder and right upper arm. I am satisfied however that she has been partially incapacitated during this time and there has been medical treatment which it has been reasonable for her to obtain as a result of cervico-brachial pain.

39.     Dr Main initially diagnosed deltoid and trapezius sprain but is of the opinion that Ms Morales’ present problems arise from arthritis of the acromioclavicular joint, long-standing tendonitis of the shoulder and cervico-brachial amplified pain. Dr Woods also diagnosed Ms Morales as having suffered a soft tissue strain but he too was of the opinion that Ms Morales’ symptoms are consistent with cervico-brachial pain and arthritis.  He was of the view that the arthritis does not account for all of the symptoms.  Dr Le Leu, Dr Griffith and Dr Stevenson were all of the opinion that any strain of the muscles has resolved and Dr Stevenson was of the opinion that the natural history of soft tissue strain is resolution in days or weeks. None of the medical practitioners expressed the view that either or both of the sprains in respect of which liability had been accepted was continuing to have an effect on Ms Morales at the time of his assessment of her.  In these circumstances I accept the evidence that Ms Morales has ceased to suffer any effects of the sprains of her shoulder and upper arm.

40.     Even though I am satisfied that the sprains have ceased to have effect I am not satisfied that there has been a change in the cervicobrachial pain suffered by Ms Morales such as would justify Comcare’s being entitled to cease making compensation payments.

41.     From the time Ms Morales lodged her claim Dr Main was of the view that she suffered a regional pain response in addition to a deltoid sprain and that the pain response was caused by overuse of her arm at work.  This view is supported by the opinion of Dr Woods in 1999 that her symptoms were consistent with cervicobrachial pain.  Dr Main gave evidence that he is of the opinion that Ms Morales now suffers chronic cervico-brachial pain.  I also take into account the evidence of Dr Griffith that Ms Morales suffers from “right cervical and cervicodorsal myalgia.” [29]  Although Dr Stevenson is of the opinion that any strain would have resolved in days or weeks, he did not reject Ms Morales' complaints of pain but was of the view that they required “explanation in non-medical factors.”[30] None of the practitioners who provided reports and/or gave evidence was of the view that Ms Morales was fabricating her claims or that she did not suffer from an ongoing regional pain syndrome or cervico-brachial pain.  Dr Talbot was of the opinion that Ms Morales did not suffer from an identifiable medical condition when he examined her and that there was no organic diagnosis to explain her symptoms. He did not indicate that he thought the symptoms were not genuine.

[29] Ex.A1.

[30] Ex.A1.

42.     Having heard and observed Ms Morales give her evidence, I am satisfied that she is an honest witness and I accept her description of the pain she has suffered since 1998. On the basis of her evidence and the opinions of Dr Main, Dr Woods and Dr Griffiths I am satisfied that since 25 June 2005 Ms Morales has suffered from, and presently suffers from, cervico-brachial pain.  On the same basis I am satisfied that the cervico-brachial pain was contributed to in a material degree by her employment and that it is a disease for the purposes of the Act. Dr Talbot has expressed a contrary opinion, but in this case I prefer the opinions of Ms Morales’ treating practitioners, who have had the opportunity to assess Ms Morales’ condition over a considerable period of time.

43.     Comcare has properly conceded that if it is found that Ms Morales continues to suffer the effects of a compensable condition which requires medical treatment, liability for reasonable acupuncture expenses follows.

DECISION

44.     In matter A2005/344 the reviewable decision of Comcare made 1 November 2005 is set aside.

45. In substitution for the decision set aside in matter A2005/344 it is decided that since 25 June 2005 and at the date of this decision Comcare is liable to pay compensation to Ms Morales pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the injury of cervico-brachial pain suffered on 19 November 1998.

46.     In matter A2005/225 the reviewable decision of Comcare made 19 July 2005 is set aside.

47.     In substitution for the decision set aside in matter A2005/225 it is decided that since 10 June 2005 and at the date of this decision Comcare is liable to pay compensation to Ms Morales for acupuncture treatment that it was reasonable for her to obtain in relation to the injury of cervico-brachial pain suffered on 19 November 1998.

48.     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 Ms Morales.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of J.W. Constance, Senior Member.

Signed:          .....................................................................................

Geoff Foley, Associate

Date/s of Hearing  31 August 2006, 1 September 2006 and 23 February 2007

Date of Decision  30 March 2007
Counsel for the Applicant               Ian Bradfield
Solicitor for the Applicant               Higgins Solicitors
Counsel for the Respondent          Lorraine Walker
Solicitor for the Respondent         Dibbs Abbott Stillman