Nguyen and Linfox Australia Pty Ltd (Compensation)

[2022] AATA 1449

Nguyen and Linfox Australia Pty Ltd (Compensation) [2022] AATA 1449 (2 June 2022)

Division:GENERAL DIVISION

File Number:          2020/0522

Re:Thuan Nguyen

APPLICANT

Linfox Australia Pty LtdAnd  

RESPONDENT

DECISION

Tribunal:Mr A. Maryniak QC, Member

Date:2 June 2022  

Place:Melbourne

The Tribunal orders that:

(a)The reviewable decision of 10 January 2020 is set aside.

(b)The Tribunal decides in substitution for the decision set aside:

The Applicant suffered incapacity and impairment as a result of a right shoulder injury which arose out of or in the course of employment with the Respondent on or about 12 August 2019, or to which that employment contributed to a significant degree, the subject of a claim for compensation dated 30 October 2019, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

(c)The Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

.........................[sgd]...............................................

Mr A. Maryniak QC, Member

Catchwords

COMPENSATION – entitlement to compensation – review of decision affirming a primary determination denying the Applicant compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 – whether Applicant suffered an injury or ailment arising out of or in the course of his employment – whether Applicant has suffered impairment – whether Applicant has ongoing incapacity to work – Decision Under Review set aside and substituted in favour of the Applicant

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Commonwealth of Australia v Beattie [1981] FCA 89; (1981) 53 FLR 191

Commonwealth Banking Corporation v Percival [1988] FCA 240

Kennedy Cleaning Services Pty Ltd v Petkoska [2000] HCA 45

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310

REASONS FOR DECISION

Mr A. Maryniak QC, Member

2 June 2022

INTRODUCTION

1. The Applicant, born 1 February 1960, claims entitlement for compensation as an employee of the Respondent.  A reviewable decision of 10 January 2020 was made pursuant to s 62 of the Safety Rehabilitation and Compensation Act 1988 (the Act) denying liability to pay compensation.

2. The Applicant submits that during the course of his employment he suffered incapacity and impairment as a result of a right shoulder injury, or to which his employment contributed to a significant degree, whilst he was using a scanning gun on or about 12 August 2019, giving rise to compensation pursuant to s 14 of the Act. The Respondent submits that the Applicant’s incident with the scanning gun did not result in an injury as defined by s 5A(1) of the Act and that hence the Applicant is not entitled to compensation under s 14 of the Act.

   BACKGROUND

3. The 62-year-old Applicant commenced working full time for the Respondent in November 2007 as a Distribution Facilities Worker Grade 2. He worked about 47 hours a week and spent the majority of that time selecting orders in the warehouse, picking up boxes of groceries of various weights up to 20 kilograms, destined for supermarkets and scanning each box with a scanner gun. Prior to 12 August 2019, the Applicant would spend one to two days per week driving a forklift instead of the aforementioned duties.

4. Subsequent to the incident on 12 August 2019 at around 6pm, a right shoulder and upper limb condition resulted in the Applicant’s incapacity for work together with an impairment of that part of his body, involving loss of full effective use of that right upper limb. Light duties were subsequently offered and then later withdrawn in December 2019.[1]

   [1] Refer Transcript Day 1 page 23 line 40 to page 25 line 13.

   LEGISLATIVE FRAMEWORK

5. Section 14(1) of the Act provides, subject to this Part, that:

   Comcare [in this Application, the Respondent] 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. 

6. ‘Injury’ is defined by s 5A(1) of the Act (via s 4) as:

   (a) a disease suffered by an employee; or

   (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

   (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment) that is an aggravation that arose out of, or in the course of, that employment…

   ISSUES

7. Consistent with the submissions of the Applicant, the Tribunal accepts that the following main issues require resolution by the Tribunal in respect of the impairment which occurred by result of an incident on 12 August 2019:

   (a)If the injury is an injury in the primary sense, an ‘injury (other than a disease),’ then did it arise in the course of the Applicant’s employment?  In this instance, did this injury have no ‘causal’ connection with employment but rather a temporal one; and/or

   (b)If the injury is an injury in the primary sense, an ‘injury (other than a disease)’, then did it arise out of the Applicant’s employment?  In this instance such an injury is causally connected to that employment (though not in the sense of the test for ‘disease’ in the definition of injury in the Act), in that it was sustained owing to circumstances that the Applicant encountered in the performance of his duties or things incidental to his employment; and/or

   (c)If the injury is an ‘ailment’, being a morbid condition of the body, did the Applicant’s employment contribute to the ailment or the aggravation of the ailment to a significant degree?

   CONSIDERATION

8. The evidence considered by the Tribunal includes:

   (a)the T Documents;

   (b)the Applicant’s statement dated 12 October 2020;

   (c)various medical reports and other tendered documents, comprising Exhibits A1 to A3 and R1 to R3; and

   (d)the oral evidence of:

   (i)the Applicant;

   (ii)Dr Christine Le, the Applicant’s treating rheumatologist;

   (iii)Mr Craig Mills, orthopaedic surgeon; and

   (iv)Professor Peter Steadman, orthopaedic surgeon.

   The Tribunal has also considered the submissions of the parties.

9. The Applicant’s oral evidence was given through an interpreter and he was thoroughly cross examined. At the outset, the Tribunal notes that his evidence was consistent with his statement of 12 October 2020 and that he responded to questions directly and without hesitation. The Tribunal finds the Applicant to be a credible witness.

10. The Applicant gave evidence that during the event on 12 August 2019, he experienced an onset of sharp pain in his right shoulder and restriction of movement whilst performing work holding out a scan gun with his right arm outstretched. He indicated that his job entailed various movements and postures including reaching above his shoulder height and bending deep into shelves with his arms outstretched, sometimes where his arms are at angles further than 90 degrees to his torso, in order to then lift boxes or cartons. Such duties were repeated throughout each shift, save for shifts when the Applicant worked on the forklift.

11. The Tribunal accepts the Applicant’s evidence that during his employment on 12 August 2019 he experienced an onset of sharp pain in his right shoulder and restriction of movement whilst performing work holding out a scan gun, with his right arm outstretched.  Further, consistent with the Respondent’s Job Dictionary describing the Applicant’s job as ‘heavy’, the Tribunal accepts the Applicant’s evidence that his job entailed various movements and postures including, on occasions, reaching above his shoulder height and bending deep into shelves to access and lift boxes and cartons, sometimes with his arms at angles greater than 90 degrees to his torso.

12. The evidence of the Applicant supports a finding by the Tribunal that the Applicant’s work was repetitive and involved some heavy lifting and such evidence is accepted.[2] Equally, the evidence before the Tribunal as discussed herein supports a finding that the Applicant was incapacitated for work and impaired as a consequence of the incident at work which occurred on 12 August 2019. The Tribunal makes such findings.

    [2] Refer Transcript Day 1 page 10 line 20 to pages 11 line 34.

13. An ‘injury’ as defined by the Act occurs where an employee develops a “sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state”.[3] Such definition does not require that the physiological change necessarily be a “sudden” one, but the suddenness of the change is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying disease. It is the physiological change that remains central.[4]

    [3] Military Rehabilitation and Compensation Commission v May [2016] HCA 19 at [45].

    [4] Ibid at [47].

14. Such a change or disturbance of the normal physiological state does not require a pathological alteration, although the former may be caused by the latter, but not necessarily.  Pathological alteration is not a requirement to satisfy the definition of ‘injury’.[5]

    [5] Commonwealth of Australia v Beattie (1981) 53 FLR 191 at 201.

15. On 4 February 2020, Dr Le reported that the Applicant presented with work related chronic right rotator cuff tendonitis and a frozen right shoulder. A subacromial bursal steroid injection had not provided any improvement and she recommended a hydrodilatation procedure. On 31 March 2020, Dr Le reported that an MRI right shoulder scan “revealed signs of supraspinatus tendonitis with partial thickness tearing, subacromial bursal oedema and effusion and subacromial spurring, suggestion of capsulitis which is certainly the case clinically”.[6]

    [6] Dr Le Report dated 31 March 2020 at page 1.

16. In Dr Le’s opinion, the Applicant’s employment was:

    a significant contributing factor to his current condition of persisting right shoulder dysfunction as a consequence of adhesive capsulitis following a soft tissue injury to the right shoulder. This is because of the temporal relationship of the development of his symptoms whilst he was at work, the persistence of symptoms, despite treatment, without any period of resolution since the onset, and the absence of any pre-existing shoulder symptoms.[7] 

    [7] Ibid.

17. Dr Le’s opinion remained consistent in a follow up report of 7 July 2021 where she added, inter alia:

    [h]ad he not been doing the heavy physical work that he was doing on a repetitive basis over prolonged periods of time he would not have developed the rotator cuff tendinopathy to its current level of severity and chronicity.[8]

    Her oral evidence was to a similar effect[9] and she confirmed her view that the Applicant had “global restriction of movement” meaning ‘…all six directions were reduced including internal and external rotation’.[10]

    [8] Dr Le Report dated 7 July 2021 at page 2.

    [9] Refer Transcript Day 1 page 48 lines 23-47 and page 49 lines 1-7 .

    [10] Refer Transcript Day 1 page 54 lines 15-18.

18. Mr Mills provided three reports and gave oral evidence. On 19 June 2020 Mr Mills noted the Applicant had “ongoing moderate stiffness to the shoulder and therefore a repeat hydrodilatation may be an option for treatment” and that “[t]he claimant has had a moderate to severe negative impact on work as a result of his requirement to lift and scan” and “clinical evidence of moderate persisting right shoulder adhesive capsulitis.”[11]

    [11] Dr Mills Report dated 19 June 2020, page 4 at [5].

19. On 31 August 2020, after considering the report of Professor Steadman of 4 December 2019, Mr Mills stated “[t]here is no strong evidence that his occupation is of no impact on his condition” and that “[t]he MR finding of cuff tendinopathy means that the Steadman opinion is an incomplete diagnosis”.[12] Further in his third report of 22 July 2021, Mr Mills stated that in his opinion, “the work accident is the approximate or main cause of this man’s shoulder inflammation and adhesive capsulitis”.[13]

    [12] Dr Mills Report dated 31 August 2020, page 5.

    [13] Dr Mills Report dated 22 July 2021, page 6 at [3].

20. Professor Steadman, consultant orthopaedic surgeon, provided three expert reports on behalf of the Respondent and gave oral evidence. On 4 December 2019 Professor Steadman stated that the Applicant “suffers from what appears to be winging of his scapula” and that in his opinion this was not a work related injury.[14]  He maintained this view in his 23 July 2020 report: “[t]he diagnosis would still be winging of the right scapular likely resulting in right shoulder dysfunction that then lead (sic) to secondary right shoulder subacromial bursitis and tendinitis” and based upon this opinion he maintained that the Applicant’s shoulder condition “is not a work related consequence”.[15]

    [14] Report of Professor Steadman dated 4 December 2019, page 5.

    [15] Supplementary Report of Professor Steadman dated 23 July 2020, page 3.

21. On 28 July 2021 Professor Steadman reported that he had changed his opinion:

    I am now of the opinion that there are issues of clinical presentation inconsistency arising considering the contrasting and sequential opinions…Varying clinical signs are present at various stages with rapid loss, minimal MRI findings, reports of full recovery, subsequent deterioration, winging and no winging and non-responsive treatment.[16]

    [16] Further Supplementary Report of Professor Steadman dated 28 July 2021, page 8.

22. Prior to the hearing, the Respondent contended “that the medical evidence, specifically the reports from orthopaedic specialist Professor Steadman, along with the radiology reports, support a finding that the appropriate diagnosis of the Applicant’s right shoulder condition is winging of the scapula with some secondary consequences.”[17]  However, this contention ultimately was not supported by Professor Steadman in oral evidence where he abandoned his winging thesis. 

    [17] Respondent’s Statement of Facts, Issues and Contentions at page 7 (Respondent’s SFIC).

23. Further, in cross examination, Professor Steadman accepted that the requisite aspects of a sudden onset of physiological change of pain and restriction of movement to the Applicant’s right shoulder on 12 August 2019 occurred.[18] Such adverse consequences to the Applicant’s shoulder were physiological changes in his expert opinion.[19] Yet Professor Steadman was of the view that reaching forward with the scanning gun was not by itself “clinically significant enough” to be characterised as a trauma to the shoulder.[20] 

    [18] Refer Transcript Day 2 page 125 lines 4-34.

    [19] Refer Transcript Day 2 page 127 lines 10-14 to page 128 lines 11-12.

    [20] Refer Transcript Day 2 page 119 lines 5-13.

24. The Respondent’s revised post hearing contention was that the 3 September 2019 ultrasound and 17 October 2019 MRI of the Applicant’s right shoulder together with the opinions of Professor Steadman support a conclusion that the Applicant suffered from subacromial bursitis impingement syndrome and supraspinatus tendinopathy on or about 12 August 2019.[21] The Tribunal notes that upon his subsequent review of the MRI images and report (accepting his evidence of the limitation of the ultrasound being impacted by “operator dependence” and “not [being] terribly accurate”), Professor Steadman accepted in evidence in chief the conclusions of the radiologist that the Applicant’s right shoulder shows “supraspinatus tendinosis… a small, minimal partial thickness rim rent tear… and subacromial bursal oedema”.[22] 

    [21] Respondent’s Submissions in Response dated 11 October 2021 at page 1 and page 4 at [18].

    [22] Refer Transcript Day 2 page 104 lines 41-45.

25. Whilst the Professor stated that such MRI imaging was more accurate and better assisted a medical practitioner in moving towards a diagnosis,[23] despite the fact that the MRI did not cover the chest wall or the shoulder blade,[24] he was still prepared, prior to giving oral evidence to the Tribunal, to conclude with a diagnosis of winging to the scapula, without such assistance of the “gold standard” MRI information.[25] 

    [23] Refer Transcript Day 2 page 105 lines 11-15.

    [24] Refer Transcript Day 2 Page 104 lines 40-45.

    [25] Refer Transcript Day 2 page 105 lines 14-15.

26. The Tribunal finds that the evidence of Professor Steadman was ultimately of limited value and assistance to the Tribunal. Having abandoned his hypothesis of “winging of scapula”, he eventually accepted that despite various hypotheses, he was unable to explain why the Applicant’s condition had occurred and deteriorated so rapidly in terms of loss of movement.[26]

    [26] Refer Transcript Day 2 page 144 line 6 to page 145 line 9.

27. Against this, is the evidence of Dr Le, whose opinions and views regarding the Applicant’s condition are well informed both as his treating rheumatologist and noting her considerable experience treating workers with similar injuries as a practicing rheumatologist in Footscray, near the Applicant’s employment. In light of the matters discussed above, the Tribunal places greater weight on Dr Le’s evidence. The totality of her evidence before the Tribunal consistently supports a finding of immediate onset of incapacitating pain on 12 August 2019 and subsequent persistence of that pain. The Tribunal accepts the evidence in her report of 31 March 2020 as to the incapacitation’s connection with the Applicant’s employment being temporal where she stated:[27]

    This is because of the temporal relationship of the development of his symptoms which he was at work, the persistence of those symptoms despite treatment without any period of resolution since onset and the absence of any pre-existing shoulder symptoms.

    The Tribunal is satisfied, on balance, that a temporal onset ‘in the course of employment’ of a definite right shoulder injury has occurred and hence the evidentiary requirement for ‘injury (other than a disease)’ is established.[28]

    [27] Dr Le Report dated 31 March 2020 at page 1.

    [28] Safety, Rehabilitation and Compensation Act 1988 s 5A(1).

28. Such a finding is also based upon the evidence of Mr Mills, where he described the act with the scanner gun being the “final straw” bringing about the disabling physiological change in the course of employment, being consistent with both the injury as one in the primary sense, but also in the context of an ailment.[29] Mr Mills gave further consistent evidence in this regard during re-examination and the Tribunal accepts this evidence,[30] despite contrary suggestions put to him in cross-examination.

    [29] Refer Transcript Day 1 page 66 line 41 to page 67 line 10.

    [30] Refer Transcript Day 1 page 77 lines 18-27 to page 78 lines 7-9.

29. Equally, Dr Le’s evidence acknowledged the Applicant’s employment contributed to his ailment of chronic right rotator cuff tendonitis, as well the injury being a sudden onset of physiological change following the incident to his shoulder on 12 August 2019. The Tribunal accepts the Applicant’s submission as to the lack of difficulty, in Dr Le’s opinion, in satisfying both limbs of the definition of ‘injury’ as there is no longer any valid mutual exclusion between injury in the primary sense or disease, following Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 at 339 and Kennedy Cleaning Services Pty Ltd v Petkoska (2000) CLR 286 at 297 [32].

30. Hence, on balance, the evidence supports both a finding of ‘injury (other than a disease)’ and a finding of disease being the ailment to which the Applicant’s employment contributed to a significant degree, as defined in ss 5A(1)(a) and 5A(1)(b) of the Act. The preponderance of evidence establishes pain and an incapacity of the right shoulder from 12 August 2019 and an ongoing incapacity subsequent to the incident with the scanner gun.

1. Having made such findings based upon the evidence as to ‘injury (other than a disease) and ‘ailment’ including connection with and contribution by employment in the statutory sense under the Act, it is not necessary that the Tribunal proceed beyond these to dissect the various closing submissions of the Respondent based solely upon diagnosis. Such an analysis using diagnosis as a starting point strays from the statutory tests, which have already been satisfied on the evidence as discussed herein.

2. The Tribunal has relevantly considered and accepts the medical evidence of Dr Le and Dr Mills (in preference to that of Professor Steadman). The accepted evidence noted the Applicant’s years of performing repetitive work and the fact that the contribution of his employment was not bound by the Applicant adopting particular postures. Further, as indicated by Dr Le, the Applicant’s action of reaching out his arm at 90 degrees whilst holding the scanner gun was just the last factor which brought on the symptoms and the incapacitation, and that it was not relevant that the scanner was held above head height.

3. The Respondent’s submissions also seek to challenge a finding of injury on the basis of evolving and fluctuating symptoms after the event on 12 August 2019. Such submissions are rejected as, in light of the evidence, it is only natural that over time the consequential effects of an injury or ailment will vary and change in response to secondary features which may develop. It is further accepted that fluctuations in incapacity for work due to treatments and rest from the incapacitating symptoms may affect the presentation of symptoms.  Professor Steadman accepted the existence of inflammation of the tissues in the Applicant’s right shoulder from the date of injury which, despite treatment, consequentially developed into a frozen shoulder. It is not accepted that because the frozen shoulder condition fluctuated with treatment and over time, that once shoulder movement improved the original injury or ailment disappeared. The frozen shoulder itself would not develop directly from a single event of lifting a scanner gun as confirmed by Mr Mills.[31]

   [31] Refer Transcript Day 1 page 72 line 45 to page 73 line 4.

4. Similarly, Professor Steadman’s opinion that there had been a change of rotator cuff integrity in the Applicant’s right shoulder from October 2019 through to February 2020 is not accepted. This opinion appears based on the assertion (which is rejected) that the Applicant developed a full thickness rotator cuff tear which was visible in imaging of his right shoulder on 5 February 2020, yet not visible on the MRI of 17 October 2019. In any event, this assertion, and the evidence relied on to support it, does not detract from the Tribunal’s findings as to injury and ailment arising from the employment related incident on 12 August 2019. 

5. Consistent with the acceptance of the evidence of the Applicant, Dr Le and Dr Mills, the Tribunal finds that the Applicant has an ongoing incapacity for work as a consequence of the incident on 12 August 2019.

   CONCLUSION

6. In light of the matter set above, the Tribunal finds it correct and preferable to set aside the reviewable decision and make a substitute decision in favour of the Applicant. Consequently, it is appropriate to also make the costs order sought by the Applicant.

7. The Tribunal orders that:

   (a)The reviewable decision of 10 January 2020 is set aside.

   (b)The Tribunal decides in substitution for the decision set aside:

   The Applicant suffered incapacity and impairment as a result of a right shoulder injury which arose out of or in the course of employment with the Respondent on or about 12 August 2019, or to which that employment contributed to a significant degree, the subject of a claim for compensation dated 30 October 2019, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

   (c)The Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

I certify that the following 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision of Mr A. Maryniak QC, Member

............................[sgd]...........................................

Associate

Dated: 2 June 2022

Dates of hearing:

2 - 3 August 2021

Date of last submission:

22 October 2021

Counsel for the Applicant:

Mr Mark Carey

Solicitors for the Applicant:

Counsel for the Respondent:

Solicitors for the Respondent:

Verduci Lawyers

Mr John Wallace

HWL Ebsworth Lawyers