Norman Bassili and Prosegur Australia Pty Ltd - [2014] AATA 853

[2014] AATA 853

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/4206

Re

Norman Bassili

APPLICANT

And

Prosegur Australia Pty Ltd

RESPONDENT

DECISION

Tribunal
Egon Fice, Senior Member

Date 14 November 2014

Place Melbourne
The Tribunal affirms the reviewable decision of the Respondent made on 20 August 2012.

..........[sgd]..........................................................
Egon Fice, Senior Member
COMPENSATION – shoulder injury – injury simpliciter – lifting bags of heavy coins – chronic calcific tendinopathy – calcific rotator cuff disease – constitutional condition – radiological evidence – aggravation of existing ailment - decision affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16, 19, 62, 64

SECONDARY MATERIALS
Rheumatology International, July 8 2014 (electronic publication ahead of printed article), Are occupational repetitive movements of the upper arm associated with rotator cuff calcific tendinopathies?

Calcific Tendinitis of the Shoulder, John S Rogerson.

REASONS FOR DECISION
Egon Fice, Senior Member
14 November 2014

On 5 October 2011 Mr Norman Bassili lodged an Incident Notification Form with Chubb Security Services Ltd (Chubb) (now called Prosegur Australia Pty Ltd (Prosegur)) stating he had suffered an injury to his right shoulder on 3 October 2011 while collecting bags of coins from the Bendigo Bank at Highett. Chubb was a licensed corporation within the meaning of that expression in s. 4 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). Dr Hung Nguyen provided Mr Bassili with a medical certificate indicating he was expected to be fit for normal duties with lifting restrictions between 7 October and 13 October 2011.
After obtaining a number of medical reports, on 6 February 2012 CGU Self Insurance Services (CGU), on behalf of Chubb, declined liability concerning Mr Bassili’s claim for compensation under SRC Act in respect of his claimed right shoulder injury sustained on 3 October 2011.
On 23 February 2012, Ryan Carlisle Thomas Lawyers, on behalf of Mr Bassili, requested reconsideration of the decision to decline liability in respect of Mr Bassili’s injury.
On 20 August 2012 QBE Insurance Group Ltd (QBE), on behalf of Chubb, notified Mr Bassili that it had revoked the decision made on 6 February 2012 in accordance with s. 62 the SRC Act. In substitution for that decision, it determined that Chubb was liable, pursuant to s. 14 of the SRC Act, to pay compensation to Mr Bassili in respect of a temporary aggravation of an underlying constitutional degenerative change of the right shoulder/rotator cuff sustained on 3 October 2011. QBE also determined that Chubb was not liable to pay compensation for medical treatment or incapacity pursuant to ss. 16 and 19 of the SRC Act.
As he was entitled to do under s. 64 of the SRC Act, Mr Bassili lodged an application with the Administrative Appeals Tribunal (the Tribunal) on 19 September 2012 seeking a review of the reconsidered decision.
Mr Bassili claimed his right shoulder injury arose in the course of his employment with Chubb and that his employment significantly contributed to his claimed condition. The issues I am required to determine are:
(a)whether Mr Bassili suffered an injury in the course of his employment with Chubb;
(b)alternatively, whether his claimed condition has been contributed to in a significant degree and/or aggravated, exacerbated and/or accelerated by his employment;
(c)whether Mr Bassili continues to suffer from the claimed condition;
(d)whether Mr Bassili continues to be incapacitated for work as a result of his right shoulder condition;
(e)whether Mr Bassili continues to require medical treatment and incur related expenses for his right shoulder condition; and
(f)if the answer to the above questions is in the affirmative, whether Mr Bassili is entitled to ongoing compensation for reasonable medical treatment, related expenses and incapacity pursuant to ss. 16 and 19 of the SRC Act in respect of his claimed condition.
INJURY ARISING OUT OF OR IN THE COURSE OF EMPLOYMENT
Insofar as it is relevant in this case, s. 5A of the SRC Act defines injury in the following way:
(1)In this Act:
injury means:
(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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
There may be a question in this case as to whether Mr Bassili suffered an injury, as that word is used in its primary sense (sometimes referred to as injury simpliciter). There is some evidence suggesting that he had previously injured his right shoulder and that he may have an underlying constitutional condition in that shoulder. I should nevertheless examine Mr Bassili’s evidence regarding the circumstances in which he claimed he injured his shoulder.
Injury in its primary sense
In his witness statement, Mr Bassili said that he was employed by Chubb as an Armoured Vehicle Operator (AVO) in about 1998, on a full-time basis. He said his main duties were transporting cash and coin to and from various client premises. In fact, although Mr Bassili did not mention this in his oral evidence or in his written statement of evidence, he appears to have told Dr John Nash of Workplace Medical Services, when examined on 19 March 2010, that he had fractured his right shoulder at age 18 while playing football. When asked about this in cross-examination by Mr P Jones, counsel for Prosegur, Mr Bassili said he was 17 years of age and not 18 as was put to him. Furthermore, he said he injured his left shoulder and not his right shoulder. When Mr Jones suggested that Dr Nash asked him about any prior problems with his right shoulder, Mr Bassili responded:
No, he didn’t. He said, “Have you ever had a problem with your shoulder?” And I said, “Yes, I broke it when I was a kid. I was around 17”, but I think he must have heard 18. Maybe I did say 18 at the time but at 18 I was working so I wasn’t playing football.
When further pressed by Mr Jones, Mr Bassili insisted that the question Dr Nash asked him was whether he had a problem with his shoulder and not specifically with his right shoulder. With respect to Mr Bassili, given that Dr Nash was conducting an examination of his right shoulder, even if the question was put the way in which Mr Bassili said it was, logically, it must have been a reference to the right shoulder. It makes no sense to suggest, as did Mr Bassili, that he understood the question was about his left shoulder.
Mr Bassili had also lodged an Incident Notification Form on 18 March 2010 regarding an incident which he claimed occurred while working for Chubb as an AVO. The report stated:
The AVO felt that his upper right arm was sore after completing the Ventura Buses collection in Knoxfield. The AVO cannot recall any specific task or incident that would of [sic] caused the soreness, only that that was the time that he felt it.
That report also stated Mr Bassili continued to work and reported the incident on return to the branch. The report said Mr Bassili did not want to seek medical advice or attention. The details of the injury were described as: Sore upper right arm.
Although the Incident Notification Form stated Mr Bassili did not wish to seek medical advice or attention, the documents in evidence indicate he attended the Berwick Medical Imaging clinic on 19 March 2010 where Dr Michael Gray performed a radiological examination of his right shoulder. The report stated there was no fracture but there was a mild degeneration of the glenohumeral and AC (acromioclavicular) joints. Dr Gray also reported:
Advanced calcification is seen in the rotator cuff mainly at the supraspinatus insertion but there is probably also some subscapularis calcification and possible calcification along the biceps sheath.
Dr Gray also recommended that an ultrasound of his right shoulder be taken. This was done on 14 April 2010 and Dr Gray reported:
Extensive calcific supraspinatus tendinopathy, but no tear was demonstrated. Bursitis with impingement.
Mr Bassili again lodged an Incident Notification Form on 5 October 2011 describing the following incident:
On Monday 03/10/11 at approx 11:30am the emplyee [sic] was conducting a cash collection service at Bendigo Bank Highett as part of the two-man crew. The collection included 7 bags of coin that was located on the floor near the clients vault, the employee picked up 3 bags of coin from the floor and his guard assisted by collecting the remaining 4 bags. Both crew members returned to the Armoured Vehicle and placed the bags into a coin locker that was located on the outside of the vehicle at waist height. The injured employee stated that he allegedly felt a slight pain in his right shoulder after completing the clearance but did not report the incident at the time because he thought it was minor and continued to work on finishing his shift at at [sic] 6:45p.m.
The incident report also noted that Mr Bassili reported the alleged injury to his Supervisor two days after it occurred. Arrangements were then made for Mr Bassili to attend a doctor for the purposes of medical assessment to diagnose the severity of the alleged injury.
CGU wrote to Dr Nash on 4 May 2012 seeking a report which he provided on 15 May 2012. Dr Nash recounted his examination of Mr Bassili on 19 March 2010 and the results of the x-ray taken at that time. He said he diagnosed tendinitis and prescribed Celebrex and Panadeine Forte. At a review conducted on 22 March 2010, Dr Nash reported that there was a slight easing of pain but it still caused Mr Bassili to sleep poorly. Dr Nash referred him for a subacromial cortisone injection. On 26 March 2010 Mr Bassili reported significant easing of pain and he requested a clearance for normal duties. Dr Nash advised him to continue modified duties and referred him to a physiotherapist. On 7 April 2010 Mr Bassili reported further improvement and Dr Nash said:
A second ultrasound reported calcific tendinitis & bursitis with impingement.
On 5 May 2010 Mr Bassili reported to Dr Nash that he had an increase in right shoulder pain causing him to be unable to attend work on the previous day. He attributed the increase in pain to having been sent on a job with an inexperienced co-worker resulting in him having to perform all the duties under a normal workload. An examination on 21 May 2010 disclosed further improvement and range of right shoulder movement which was almost normal. He last attended Dr Nash on 22 July 2010 when he told him that his right shoulder was pain-free and he was able to return to work on 26 October 2010. An examination of the right shoulder was normal. Dr Nash advised Mr Bassili that he was fit for normal duties and that he should ease into coin work.
In his witness statement Mr Bassili said that in 2010, before he injured his shoulder, Chubb sent him for a full medical examination and he was cleared as fit for duty. Chubb took issue with that statement, referring to an amended statement made by Mr Robert Biffin on 14 March 2014. Mr Biffin was the Safety Manager for Victoria and Tasmania at Chubb in Melbourne. He testified that a search of Mr Bassili’s employment records disclosed he did not present for a Chubb fitness for duty medical in 2010. Rather, he presented for a heat exposure assessment completed by his general practitioner on 22 September 2010. His general practitioner found him unlikely to be put at risk or to put others at risk in performing his role as an AVO wearing body armour for periods not exceeding two hours at a time and not for greater than 50% of the time he was at work. Clearly, this was not a fitness for duty medical examination. Despite that, when Mr Bassili was taken to the statement made by Mr Biffin and asked whether he did undergo a full medical examination in 2010, he said: …everyone in that depot had to go through that medical and you were told if you didn’t do it you’d be stood down. When asked specifically whether he did the medical he said: Yes, I did. I did do the medical. I am not satisfied that Mr Bassili’s recall of that examination is correct. I prefer the contemporaneous objective medical report regarding a heat exposure assessment for wearing body armour which was in evidence.
There was also some controversy about the circumstances of the incident reported on 5 October 2011, two days after Mr Bassili claimed he suffered an injury lifting bags of coins.
In his written statement of evidence made on 26 July 2013, which was admitted into evidence, Mr Bassili explained the occurrence of his injury on 3 October 2011 this way:
On 3 October 2011 while picking up very heavy fast deposit bags full of coin weighing between 15 and 20 kilos each I suffered a further injury to my right shoulder. As I was lifting the coin bags I felt severe pain in my right shoulder. As the incident happened towards the end of the run I decided to take a couple of Neurofen and finish the job. On the next day, 4 October 2011, my partner did all the work and I was just guarding so I didn’t have much pain. On 5 October 2011 at approximately 11.30 a.m. I was helping to carry coin from the Bendigo Bank in Highett when I again felt severe pain in my right shoulder. My partner on that day was John Gahan and he noticed that I was in pain and he essentially did the work for the rest of the day.
When taken through his witness statement by Ms C Serpell of counsel, who appeared on behalf of Mr Bassili for the first two hearing days, Mr Bassili elaborated on the weight of the coin bags collected on 3 October 2011. He said these were collected from the ANZ Bank at Fountain Gate. He described that he was required to lift the bags onto a trolley and then to take them out to the armoured vehicle. He said: I went to grab the bag, I couldn’t lift it off the ground. Actually I’ve never seen anything that heavy, to be honest. He then added: I actually had to use both hands to lift it and put it on the trolley. Now the trolley is like – is right down the bottom so it is only a small lift, and that’s all I could do.
Mr Bassili then testified that he could not put all of the coins on the trolley and so he split the job and did it over two trips because the coins were so heavy. He also said that he told his escort: These bags are so heavy I honestly think I’ve done my shoulder. I’m starting to get pain in it. Mr Bassili testified that they were running late on that day and returned to Chubb after six o’clock when most people had already left. That is why he did not report anything on that day. He said that when he woke on the following day, he did not have any pain in his shoulder. As he was not required to lift any bags of coins on 4 October 2011, he had no problems on that day.
On 5 October 2011 Mr Bassili said that he attended the Bendigo Bank in Highett where he had to collect seven bags of coins. He said he picked up three or four of those bags, the remainder being picked up by his partner. When he went to pick up the coin bags, he had pain in his shoulder. Mr Bassili testified that for the remainder of the day, they swapped roles and he acted as the driver.
In cross-examination Mr Bassili was directed to the Incident Notification Form indicating the incident was reported at 5.00 pm on 5 October 2011. The report stated that the incident occurred on the Monday, 3 October 2011 at approximately 11.30 am. Mr Bassili then said that the entry on the Incident Notification Form was wrong. He referred to what he described as the running sheets which were attached to Mr Biffin’s witness statements. He said the running sheet for that day disclosed that the collection he was referring to took place between 16.28 – 16.38 hours on that day. In fact, that entry refers to a collection from the ANZ Bank at Fountain Gate in Narre Warren and not the Bendigo Bank at Highett. Mr Bassili then said that the entry was all wrong and that was not what happened. He claimed the supervisor who completed that form, Mr S Palagyi, had confused the Monday and Wednesday collections.
Mr Bassili was taken to Mr Biffin’s witness statement made on 7 January 2014 and in particular to his calculation of the weight of coin collected on both days. Mr Biffin said that the total coin collected on 3 October 2011 amounted to approximately $1800 spread over four satchels. The total weight of the coin collected was approximately 23 kg. He conducted a similar calculation for the coin collected on 5 October 2011 and said that the total value of the coin collected was $2800 in seven bags. He calculated the total weight of the seven bags to be 41.7 kg. Mr Biffin made a further statement on 10 July 2014 and said he reviewed his calculation of the weight of coin collected on 3 October 2011, finding that his initial calculation was incorrect. He said that the total weight of the coin collected on that day should have been 30.6 kg.
Although Mr Bassili marked on the run sheet for 3 October 2011 the words VERY HEAVY, Mr Jones put it to him that the average weight of the bags (at the time of cross-examination, using the 23 kg figure) could not be described as very heavy. In fact Mr Bassili said that divided by four bags, it amounted to just over 5 kg per bag. He said he had trouble believing that. Using Mr Biffin’s updated figure, that weight would be 7.65 kg per bag. Mr Bassili agreed that he used a trolley to deliver the bags to the armoured vehicle from where they were loaded into it.
When cross-examined about the coin collected from Bendigo Bank at Highett on 5 October 2011, Mr Bassili agreed that there were seven bags and that the job of carrying those bags was split between him and the escort. He agreed that on that day, he did not use the trolley. This was despite the fact that he had previously said that he only used the trolley if he thought the bags were heavy. Mr Jones then directed Mr Bassili’s attention to the first report made by Dr Ross Whittaker on 2 February 2012 where, in the history given to him by Mr Bassili, Dr Whittaker said he was carrying only two or three bags of coins, each weighing only 2 – 3 kg. Those bags were split between both hands. Mr Bassili’s response was: That’s definitely wrong, because have a look at the breakdown of the coins. You show me – there’s not one bag that’s less than – I think the smallest weight is about five, or 4.6 or something. I should indicate that when Mr Bassili was interviewed again by Dr Whittaker on 6 September 2013, in his report dated 12 September 2013, Dr Whittaker indicated Mr Bassili corrected that statement, saying that he was only carrying two or three bags of coins each weighing up to 5 kg.
Mr Biffin’s calculation of the weight of coin collected on 5 October 2011 was taken directly from the run sheet which was a document completed at the time the coins were collected. There was no issue about the fact that seven bags were collected and their total weight was 41.7 kg. Clearly, the description given by Mr Bassili on various occasions to various medical practitioners may have been in error. Alternatively, those medical practitioners may have recorded what he said incorrectly. The best evidence of the weight of coin collected is of course the run sheet. However, I suspect that simply dividing total weight by the number of bags may not indicate the actual weight of the bags lifted by Mr Bassili on either occasion. Regardless, whether the bags that he in fact lifted weighed 7 kg rather than 5 kg, is probably not significant. The weight of coin was likely somewhere between those weights and, in my opinion, that provided medical practitioners, who later examined him, with a reasonable basis for coming to the conclusions which they did.

As I have already indicated above, Mr Bassili has had numerous medical examinations since 5 October 2011. I have set out below those relating specifically to his claimed right shoulder injury.
·7 October 2011 – In a report dated 15 November 2011, Dr Hung Nguyen said he first examined Mr Bassili on 7 October 2011 due to pain in his right shoulder. According to Dr Nguyen, Mr Bassili said the pain first occurred on Monday, or 3 October 2011, when he was handling bags of coins. He had similar pain on 5 October 2011 while doing his normal duties. Dr Nguyen said:
There were [sic] no recent direct injury. The pain level was acceptable during the day but got worse at night time....
Norman had right shoulder pain on [sic] 2009 and was treated elsewhere.
On examination there was no difference compared with the left shoulder. Shoulder elevation was 90 degrees and Norman had some pain on forced external rotation.
At this stage my diagnosis was non-specific Right shoulder pain.
·17 October 2011 – Mr Bassili had his right shoulder x-rayed and an ultrasound taken of his right rotator cuff by MDI Radiology. Dr Geoffrey Thomas reported on the findings as follows:
The scans demonstrate a relatively large deposit of coarse dense calcification within the mid supraspinatus tendon. This measures up to 20 mm in length. No full-thickness tear is seen.…
The biceps tendon appears atrophic and there is a linear hypoechoic split within it. There is no fluid in the biceps sheath…
For complete assessment, plain x-rays were performed. This confirms dense calcification within the rotator cuff, corresponding to the supraspinatus tendon as seen on ultrasound.
·14 November 2011 – Mr Bassili was examined by Dr Andrew Schon who described himself as an occupational practitioner. He concluded:
Diagnosis of Mr Bassili’s injury is a calcific tendinitis of the right rotated [sic] cuff. Final opinion is unclear as many specialists believe it is an intrinsic condition rather than a work-related injury, there is no continuity with the previous right shoulder injury on the 18^th of March 2010. There is no evidence of any activities Mr Bassili may do outside of work that would have contributed to the development of this condition.
·21 December 2011 – Dr Nguyen answered some questions raised by CGU following his report of 15 November 2011. When asked about his diagnosis, Dr Nguyen said:
Chronic supraspinatus tendinopathy
When asked for his prognosis, he said:
Likely to persist
·2 February 2012 – Dr Ross D. Whittaker, consultant rheumatologist, provided a report to CGU. He was provided with the x-ray and ultrasound reports of 17 October 2011. Dr Whittaker was aware of an MRI performed in mid‑December 2011 although he had neither the film nor the report of that investigation. He was aware that Mr Bassili had a steroid injection on 10 January 2012 and that it helped his right shoulder symptoms. Dr Whittaker concluded:
His current examination findings are consistent with symptomatic right ACJ osteoarthritis, supraspinatus tendinopathy and mild impingement.
Calcific supraspinatus tendinitis is normally a condition that presents spontaneously.
In answer to a question put to him regarding Mr Bassili’s current condition, Dr Whittaker said:
Calcific supraspinatus tendinopathy is a condition that generally presents spontaneously. It is not related to the alleged workplace incidents on 03/10/2011 or 05/10/2011. Indeed, radiological investigations suggest that his calcific supraspinatus tendinopathy is chronic.
He also has evidence of biceps tendon atrophy with a small split this is not a condition that has developed over two weeks but, rather, a condition of more long standing. The presence of irregularity of the cortex of the greater tuberosity is further evidence of chronic rotator cuff tendinopathy.
When Dr Whittaker was asked whether he considered Mr Bassili’s current claim to be a recurrence of his prior incident or an aggravation of a pre-existing condition, he responded:
With the information that has been provided, I think it is unlikely that his current claim is a recurrence of his previous conditions. However, it would be beneficial to obtain reports from the treating doctor that he saw at Chandler Medical Centre and to obtain the results of any investigations that were performed at that stage....
·8 May 2012 – Mr Ashley Carr, orthopaedic surgeon, examined Mr Bassili on 14 December 2011 and subsequently on 3 January 2012. Mr Carr referred to the x-ray and ultrasound and said it was not clear whether there were any areas of full thickness tearing based on the ultrasound. Accordingly, he arranged for Mr Bassili to have an MRI.
An MRI was performed on Mr Bassili’s right shoulder on 16 December 2011. Dr Chris O’Donnell, who reported on the outcome of the MRI, said:
…No full thickness tear. Minimal fluid in the subacromial bursa.
…The glenohumeral joint is relatively normal without loss of articular cartilage. Minimal joint fluid.
Substantial supraspinatus tendinopathy and/or partial tearing but no full thickness tear. Rotator cuff tendons are otherwise intact. Substantial A-C arthropathy.
Mr Carr concluded:
…In my opinion, Mr Bassili has changes of the shoulder and in particular his rotator cuff, which are consistent with being degenerative in nature with possible exacerbation from injuries in the workplace. It is conceivable that these incidences cause micro‑trauma with small intra-substance tears to the supraspinatus as demonstrated on the MRI scan.…
It is not possible to determine what contribution his workplace activities play in his shoulder pathology, suffice to say that his symptoms have deteriorated after incidences at work.
·15 May 2012 – report by Dr John Nash of Workplace Medical Services. Dr Nash first examined Mr Bassili on 19 March 2010 following his first claimed injury. He said that x-rays reported calcification of the rotator cuff and also possibly the biceps tendon. Dr Nash referred Mr Bassili for a subacromial cortisone injection. After providing an opinion regarding the cause of Mr Bassili’s pain, Dr Nash said:
Nevertheless the shoulder condition completely resolved & he returned to normal duties. Recurrences of pain from the calcific tendinitis are possible but will be unrelated to the claimed injury. Recurrences of bursitis/impingement are also possible but will be related to loads on the shoulder at that time & not at the time [of] the claimed injury.
·27 July 2012 – report prepared by Dr Ken Eastaugh, Mr Bassili’s treating general practitioner. Dr Eastaugh referred to the ultrasound; the MRI; and the report of a longitudinal split of the long head of biceps and mild glenohumeral osteoarthritis. He also reported that there was no evidence of pre-existing or underlying condition that pre-disposed Mr Bassili to the issues he was having with his right shoulder.
·11 September 2012 – Mr Bassili was examined by Mr Clive Jones, orthopaedic surgeon, on 14 August 2012. Mr Jones prepared a report dated 11 September 2012 (R 18). He said:
This Armaguard employee has chronic pain in the right shoulder related to degenerative change and to extensive dystrophic calcification in the joint. This of course is a constitutional condition, which is extremely common in his age group. Employment with Armaguard, particularly handling bags of coin is said to be the cause of the worker’s shoulder pain.…
In response to a question whether Mr Bassili’s claimed condition occurred as a consequence of an injury or disease, Mr Jones said:
There was no specific history of injury. Calcific tendonitis and arthritic change is a constitutional condition, which is not employment related.…
It is difficult to see employment as a substantial contributing factor in respect of this condition.
·10 January 2013 – Dr Peter A. Blombery, consultant physician (vascular disease), examined Mr Bassili on 3 December 2012. Dr Blombery said:
Imaging had shown evidence of supraspinatus tendinopathy with some small tears in the tendon as well. Some of these were degenerative in nature but it was my opinion that the work he was doing had also made a contribution to the development of the tears in the tendon and changes.
·11 February 2013 – further review by Dr Eastaugh. Dr Eastaugh’s opinion remained unchanged. He reported that Mr Bassili continued to have ongoing shoulder issues throughout 2012 and into early 2013. He repeated that there was no evidence of a pre-existing or underlying condition which predisposed him to his condition.
·6 April 2013 – Associate Professor Neil W. McGill, consultant rheumatologist, provided a report based on the documentation provided to him. He did not examine Mr Bassili. Relevantly, his opinion was:
I think the condition that has predominantly been responsible for his symptoms is calcific rotator cuff disease, equally well described as calcific supraspinatus tendinopathy.…
Although his renal failure and diabetes may have played some predisposing role in regard to his calcific rotator cuff disease, I think it is probable that it represents an independent constitutional disorder. Calcific rotator cuff disease is not uncommon and in most cases people do not have an identifiable underlying disorder....
The natural history of this disorder is to produce flares of pain. Those flares often settle but sometimes patients are left with, usually low grade, chronic symptoms. The pattern of shoulder symptoms that he has experienced has been entirely in keeping with the natural history of calcific rotator cuff disease....
With respect to the suggestion by Dr Carr that it is “conceivable” that incidents of work could have produced microtrauma to the supraspinatus, the only pattern of repetitive activity that has been shown to result in an increased prevalence of MRI measured degenerative change within the rotator cuff is very frequent above shoulder height work, such as performed by housepainters. I think the statement by Dr Carr is not unreasonable as there are many things which are “conceivable” but I am not aware of any evidence to support this suggestion and the wording used by Dr Carr would suggest that he also is not aware of any evidence to support the suggestion. On the basis of probability, with consideration of the controlled studies of rotator cuff disease, I think any “conceivable” connection between his work duties and his rotator cuff problems is unlikely.
I think it is unlikely that Mr Bassili’s work played a significant role in his shoulder symptoms at any stage. If there were a temporary increase in symptoms related to his underlying calcific rotator cuff disease then the duration of that effect would have been days, up to 3 weeks.
·12 September 2013 – Dr Whittaker again examined Mr Bassili on 6 September 2013 (R 17). Dr Whittaker noted that since Mr Bassili was last assessed by him, an MRI of the right shoulder had been performed. He now had that report before him. Dr Whittaker was also provided with a number of subsequent reports including those from Mr Carr, Dr Nguyen, Dr Nash, Dr Eastaugh and Mr Clive Jones. Dr Whittaker said in summary:
This condition is most likely constitutional, although his renal impairment and diabetes may also be contributing factors. Calcific periarthritis of the shoulders has been reported to be more common in diabetics and calcification around the shoulders is quite common in diabetics....
It remains my opinion this condition is non-work-related.
·30 October 2013 – further report by Mr Jones. Mr Jones again examined Mr Bassili on 8 August 2013. He reported that the levels of pain Mr Bassili experienced in his shoulder had improved slightly, however, there had been no major change. He said that little could be added to his previous assessment. His diagnosis of calcific tendinitis remained unchanged. Regarding diverging views, Mr Jones said:
I remain of the view that calcific tendinitis both in its acute and chronic form and arthritic change is a constitutional condition in the main, which is not employment related. Naturally, there are divergent medical views on this matter, one of them being that very small micro tears in the shoulder tendons can attract dystrophic calcium deposition. While this may be the case, there is certainly no major discontinuity in this man’s shoulder tendons.
Dr. McGill is a highly respected academic rheumatologist, and I would basically agree with his opinion. Extensive calcification is less common than rotator cuff rupture, but not rare and generally no identifiable underlying cause is found.
·5 February 2014 – Dr Eastaugh reported he saw Mr Bassili throughout February and March 2012 and he had very little improvement to his condition. He had not altered his prior opinion.
·21 February 2014 – Mr Thomas Kossmann, orthopaedic surgeon, examined Mr Bassili on that day. After recounting the history given to him by Mr Bassili, Mr Kossmann said:
In my opinion, this demonstrates that Mr Bassili had an acute injury to his right shoulder joint in the form of a longitudinal split within the long head of the biceps tendon. I agree with Mr Ashley Carr that diabetic patients had degenerative changes in their tendons, however I do not agree with his conclusion that it is not possible to determine what contribution his workplace activities have had in his shoulder pathology. I believe that Mr Bassili’s history is very simple and clear with two incidents where he injured his right shoulder joint and that his injury has been caused in the course of his employment.
I should point out that Mr Kossmann does not appear to have had the MRI report of 16 December 2011 before him when writing his report. He referred to the x‑ray and ultrasound, but not the MRI.
·1 May 2014 – Associate Professor McGill provided this second report after examining Mr Bassili on this date. Associate Professor McGill corrected his first report stating that the findings of the right shoulder MRI performed on 16 December 2011 should have said that the study reported to show no abnormality of the long head of biceps tendon, substantial arthropathy of the acromioclavicular joint, no full thickness rotator cuff tear, minimal fluid in the subacromial bursa and abnormal signal in the supraspinatus tendon. He also summarised the additional reports with which he had been provided; those of Dr Ross Whittaker, Dr Clive Jones, Dr Ken Eastaugh and Mr Thomas Kossmann.
Associate Professor McGill summarised this opinion stating:
He has calcific rotator cuff disease. The reports of his imaging studies indicated that the extent of calcification was substantial. The studies also reported substantial acromioclavicular joint osteoarthritis and mild glenohumeral joint osteoarthritis. An ultrasound of the right shoulder on 17 October 2011 was reported to show a longitudinal split within the long head of the biceps tendon and Dr Kossmann interpreted that finding as evidence of a specific injury. The more accurate imaging modality of MRI (performed 16 December 2011) was reported to show no abnormality of the long head of biceps tendon. It is worth noting that complete rupture of the long head of biceps tendon is associated with no significant impairment of shoulder function and I think the suggestion that a split within the long head of biceps tendon, if that had been present, could have accounted for a substantial component of his problems is incorrect. That issue would appear no longer to be relevant as the MRI showed no abnormality of the long head of the biceps tendon.
Extensive rotator cuff calcification is a constitutional disorder that is not related to injury.…
With respect to his work activities 3 October 2011, Mr Bassili felt that carrying fast deposit bags may have been responsible. In light of that history and the imaging studies (no full thickness rotator cuff tear, substantial rotator cuff calcification, osteoarthritis in the acromioclavicular joint), it is possible to conclude with confidence that his work activities in October 2011 would have had no effect on his shoulder that could have persisted for more than a week or two.
·23 June 2014 – further report from Mr Carr. Although Mr Carr said that the MRIs were reviewed and compared to a previous study in 2011, he had no other MRI film or report in evidence since the last MRI done on 16 December 2011. In any event, he said:
There is no evidence of a full thickness rotator cuff tear however the supraspinatus tendon has findings in keeping with a tendinopathy and possible articular partial surface tearing without any significant retraction. There is also some fluid within the biceps tendon sheath and an active degenerative process occurring within the AC joint. I was also able to visualise mild subacromial bursal inflammation.
·23 June 2014 – letter from Mr Carr to Dr Nathan Johns reporting on Mr Bassili’s condition at that time. In that letter, Mr Carr said that he had arranged for Mr Bassili to undergo more up-to-date imaging including an x-ray and MRI. He also said:
There was also some evidence of some mild subacromial bursitis which has resolved somewhat since his previous MRI scan in 2011. Both the supraspinatus and subscapularis have evidence of mild to moderate tendinopathies and there is a possible articular sided tear on the supraspinatus tendon.
In addition to the two reports to which I have referred above, Associate Professor McGill also provided oral evidence the course of the hearing.
In his examination-in-chief Associate Professor McGill was asked if he was aware that Mr Kossmann had diagnosed Mr Bassili as having a longitudinal split within the long head at the biceps. He said he was aware of it. However, he explained that this was not a complete rupture which could cause what he described as a “popeye”. He explained that was like a tennis ball in his mid-upper arm. Associate Professor McGill was also referred to the x-ray and ultrasound taken on 19 March 2010 and 13 April 2010 respectively. Asked to comment on those reports, Associate Professor McGill said they disclosed that Mr Bassili had calcific rotator cuff disease but that no tear was demonstrated. He agreed that calcification can cause irritation of the bursa and lead to swelling. He said the symptoms were acute flares of pain which could be severe. Associate Professor McGill said the aetiology of calcific rotator cuff disease was unknown and in his opinion, type II diabetes was not a likely cause.
Associate Professor McGill produced two documents which were taken into evidence. The first was an abstract from an article printed in Rheumatology International, July 8, 2014 (an electronic publication ahead of the printed article). The article is entitled Are occupational repetitive movements of the upper arm associated with rotator cuff calcific tendinopathies?. The abstract states:
Calcifying tendinopathy (CT) of the shoulder is a common painful disorder, although the etiology and pathogenesis remain largely unknown.… Driven by the interest for these new theories, we investigated the hypothesis of a relationship between work-related repetitive movements of the upper arm, considered a potential cause of shoulder overload, and the presence of shoulder CT.
The abstract concluded:
Work-related repetitive movements of the upper arm did not induce a higher prevalence of shoulder CT compared with the female sample from the general population. If CT etiopathogenesis is related to mechanical load, CT onset may be influenced not only by loading history, but also by individual factors.
The second article referred to by Associate Professor McGill was written by Mr John S Rogerson and is entitled Calcific Tendinosis of the Shoulder. He explained this was not a peer reviewed article. Under the heading Incidence and Pathophysiology, the author said:
The most common location for calcification is in the supraspinatus tendon near the tuberosity attachment. Calcification can also be seen in the infraspinatis, teres minor and subscapularis. Females appear to be affected more often than males and bilateral involvement is not uncommon. The highest incidences are in adults aged 30-50 years. No significant correlation seems to exist with trauma or rotator cuff rupture.

Associate Professor McGill was also referred to the x-ray done on 17 October 2011 which indicated the large deposit of coarse dense calcification measuring up to 20 mm in length. He said that this was typical of calcific rotator cuff disease. He said the deposits are generally large. He was also referred to the MRI done on 16 December 2011 and particularly the statement: Long head of biceps tendon sits normally within its groove and arises normally from the superior labrum. Associate Professor McGill said that was strong evidence that there was no split in the biceps tendon. He also confirmed that the mild thickening of the walls of the subacromial bursa exposed by the x-ray taken on 17 October 2011 was to be expected because the bursa is irritated by the calcification and it thickens.
Finally, Associate Professor McGill was asked to comment on the fact that more than two years had passed since the claimed injury occurred and yet Mr Bassili continued to suffer from shoulder pain and lack of motion. He said it indicated that the underlying calcific rotator cuff disease was not related to the work he was carrying out some two years ago. He again repeated that if Mr Bassili suffered such an injury, it would have resolved in one to two weeks. It had not.
Mr Jones also gave oral evidence in the course of the hearing. In his examination-in-chief, Mr Jones said that Mr Bassili probably had chronic dystrophic calcification and it was likely to stay there indefinitely. When referred to the x-ray taken on 19 March 2010 and the reference to advanced calcification in that report, Mr Jones said it indicated an advanced condition with a big chunk of calcification in the shoulder area. He agreed that was consistent with a chronic condition.
Mr Jones was also referred to the extent of calcification found on Mr Bassili’s ultrasound examination on 13 April 2010 which was described as measuring up to 1.6 cm. He said that confirmed the extent of the calcification in Mr Bassili’s right shoulder. Although that report also said no tear was demonstrated, Mr Jones said that may not be reliable but the biceps tendon sheath was said to be normal. He was of the view that it would only cause Mr Bassili difficulty if he was working at shoulder height or above.
When referred to the x-ray and ultrasound done on 17 October 2011, and in particular to the coarse dense calcification measuring up to 20 mm in length, Mr Jones agreed that it indicated the plaque had become larger. He was of the view that the absence of fluid in the biceps sheath made it unlikely that the biceps tendon was split. In fact, when he was taken to the more recent MRI done on 16 December 2011 he said it suggested that the biceps tendon was intact.
Mr Bassili asked Mr Jones in cross-examination what contribution the wear and tear of his work with Chubb made to his shoulder problems. Mr Jones responded that it did not contribute at all to the extensive calcification of his shoulder.
Having considered all of the medical evidence to which I have referred above, I find, on the balance of probabilities, that Mr Bassili’s right shoulder problems are caused by chronic calcific tendinopathy or, as it is sometimes referred to, calcific rotator cuff disease. That condition is described as constitutional which, in layperson’s terms, means its cause is unknown. It is not related to the injury Mr Bassili claims occurred on 3 and 5 October 2011. That is what the radiological evidence discloses and it is also confirmed by, in particular, Associate Professor McGill and Mr Jones. Although Mr Kossmann disagreed, at the time he wrote his report he did not have access to the MRI film or report. Associate Professor McGill explained that the more accurate imaging modality of MRI showed no abnormality of the long head of biceps tendon. Even if it did, Mr Bassili would have experienced no significant impairment of his shoulder function unless working at shoulder height or above.
Accordingly, I find that Mr Bassili did not suffer an injury in the primary sense as defined in s. 5A of the SRC Act. Nevertheless, I should examine whether Mr Bassili has suffered an aggravation of an ailment which was contributed to, to a significant degree, by his employment with Chubb.
Ailment or aggravation of an ailment
As is obvious from s. 5A, for the purposes of the SRC Act, a disease suffered by an employee is an injury. Disease is defined in s. 5B of the Act as follows:
(1)In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
significant degree means a degree that is substantially more than material.
Having found that Mr Bassili has calcific rotator cuff disease, the remaining question is whether he suffered an aggravation of that ailment as a result of this employment with Chubb. In examining this issue, I may take into account any predisposition Mr Bassili may have had to the aggravation of his calcific rotator cuff disease.
The evidence indicates that Mr Bassili suffers from a number of serious medical conditions. These were adequately summarised by Associate Professor McGill in his report dated 6 April 2013 after having read the notes of a number of medical practitioners who had treated Mr Bassili. Mr Bassili has had diabetes since 1990. Dr Chosich, an endocrinologist, recorded that Mr Bassili had poorly controlled diabetes since 1990. Dr Chosich noted that Mr Bassili was smoking heavily although he was advised to stop. He noted that Mr Bassili suffered from hyperlipidaemia and hypertension. Dr Chosich recorded that Mr Bassili had significant narrowing in both femoral arteries, detected in 2008, which resulted in him undergoing balloon dilation of both femoral arteries. Dr Chosich noted that in 2011 Mr Bassili had significant diabetic nephropathy. Dr Chosich advised him to arrange a renal opinion as soon as practical because he was eventually going to require dialysis. He again urged Mr Bassili to stop smoking.
In November 2011 Dr K Polkinghorne, a nephrologist, recorded a diagnosis of presumed advanced diabetic nephropathy, type II diabetes with poor control, diabetic retinopathy, peripheral vascular disease, significant hypertension, diabetic neuropathy, smoker, hypercholesterolaemia and a recent shoulder injury.
In December 2012 Dr D Lee, a nephrologist, recorded that Mr Bassili was then receiving automated peritoneal dialysis. He also recorded that in September 2012 Mr Bassili had experienced an anterolateral myocardial infarction (heart attack) which resulted in two stents being inserted. Dialysis was commenced shortly after Mr Bassili presented with pericarditis following the myocardial infarction. A renal (kidney) transplant was discussed.
Associate Professor McGill opined that diabetes increased the likelihood of capsule and tendon problems around the shoulder. He also said renal failure results in impaired tendon strength and function generally. Associate Professor McGill said that although renal failure increased the likelihood of hydroxyapatite crystal deposition in soft tissues, including tendons, Mr Bassili’s calcium and phosphate levels were normal. Therefore, he did not think it appropriate to deem that Mr Bassili’s calcific rotator cuff disease occurred primarily because of his renal failure.
Associate Professor McGill explained that Mr Bassili’s renal failure and diabetes may have played some predisposing role in regard to his calcific rotator cuff disease and then said:
I do not think that his calcific rotator cuff disease has been influenced by his work. Although studies have demonstrated that frequent repetitive above shoulder height work increases the prevalence of non-calcific rotator cuff degeneration, I am not aware of any study which has demonstrated an association between physical activity, work related or otherwise, and the frequency of calcific rotator cuff disease.
The natural history of this disorder is to produce flares of pain. Those flares often settle but sometimes patients are left with, usually low grade, chronic symptoms. The pattern of shoulder symptoms that [Mr Bassili] has experienced has been entirely in keeping with the natural history of calcific rotator cuff disease.
Mr Carr said in his letter of 8 May 2012:
… In my opinion, Mr Bassili has changes of his shoulder and in particular his rotator cuff, which are consistent with being degenerative in nature with possible exacerbation from injuries in the workplace. It is conceivable that these incidences cause micro‑trauma with small intra-substance tears to the supraspinatus as demonstrated on the MRI can [sic].
… It is not possible to determine what contribution his workplace activities play in his shoulder pathology, suffice to say that his symptoms had deteriorated after incidences at work. I note that he is diabetic and this is known to cause acceleration of degenerative changes within the tendons. I would anticipate that Mr Bassili would have intermittent ongoing symptoms based on his level of activity.
However, as Associate Professor McGill said in his report of 6 April 2013, the suggestion by Dr Carr that it was conceivable that incidents at work caused some of the symptoms experienced by Mr Bassili, while a possibility, does not rise to the level of probability. He said (at page 5):
On the basis of probability, with consideration of the controlled studies of rotator cuff disease, I think any “conceivable” connection between his work duties and his rotator cuff problems is unlikely.
Mr Jones, who examined Mr Bassili on 14 August 2012, was asked if he considered Mr Bassili’s claimed condition arose as a consequence of a disease and if so, whether his employment was a substantial contributing factor in the development of his claimed condition. Mr Jones responded that [i]t is difficult to see employment as a substantial contributing factor in respect to this condition.
Associate Professor McGill again interviewed and examined Mr Bassili on 1 May 2014. He expressed the view that Mr Bassili’s extensive rotator cuff calcification was a constitutional disorder and not related to an injury.
As to his other medical conditions, Associate Professor McGill said:
During the periods when he was receiving dialysis, he would have been unfit for work on the basis of his renal failure in the setting of diabetes and extensive vascular disease. Although he remains on the renal transplant waiting list and thus clearly still has severely impaired renal function, his renal failure, coronary vascular disease, peripheral vascular disease and diabetes would not absolutely preclude him from performing light duties. Most people with that combination of health problems however would be deemed to be unfit for work and to be suitable for an invalid pension.
In his report of 2 February 2012, Dr Whittaker said this about the workplace incidents Mr Bassili claimed occurred on 3 and 5 October 2011 (T docs page 110):
The advised workplace incidents on 03/10/2011 and 05/10/2011 would at the most have caused transient heightening of symptoms secondary to an underlying non-work-related condition.
Dr Whittaker also said in answer to a question regarding the specific condition or conditions Mr Bassili suffered from:
His age, right upper limb dominance, ACJ osteoarthritis, diabetes, smoking and possibly constitutional predisposition to tendinopathy (as suggested by his episode of left lateral humeral or epicondylitis in April 2008) are all relevant contributing factors.
Dr Whittaker also said that if there had been a work-related aggravation, at most that was temporary and had long since ceased.
In his report dated 15 May 2012, Dr Nash said this of Mr Bassili’s pre-existing condition:
Calcific tendinitis is a constitutional problem & is associated with diabetes, for which Norman takes treatment. Although the rotator cuff calcification it [sic] would have predated the claimed injury there is no clear evidence that it was the cause of his pain. Xray appearances of calcific tendinitis are often seen in persons without shoulder pain. It is more likely that the upward compressive force, as a result of the positioning of his right arm in the coin handling task, on the rotator cuff caused his pain.
In my opinion, the extracts from the reports I have referred to above regarding the aggravation or possible aggravation of an existing condition disclose that while this may have occurred, it would have been transient in nature, that is, of short-term duration possibly up to two weeks. While some of the reports indicate that his diabetes and renal failure could also have contributed to the pain Mr Bassili experienced due to some degradation of the tendons in his shoulder, that remains no more than a possibility. Accordingly, I find, on the balance of probabilities, Mr Bassili did not suffer an aggravation of his calcific rotator cuff disease, to a significant degree, by reason of his employment with Chubb.
CONCLUSIONS
I have found that Mr Bassili did not suffer an injury in the primary sense as he claimed on 3 and 5 October 2011. All of the medical reports which were completed with the benefit of CT and MRI scans disclosed that Mr Bassili had calcific rotator cuff disease or calcific supraspinatus tendinopathy. While some reports suggested a small split in the biceps tendon, no full thickness tearing was apparent. While it was suggested that this conceivably indicated an exacerbation from injuries as Mr Bassili claimed, no medical practitioner was able to establish that link on the balance of probabilities. Calcific rotator cuff disease is a constitutional condition and was not related to Mr Bassili’s claimed workplace injury.
If Mr Bassili experienced a temporary increase in symptoms, those symptoms would have resolved in about two weeks. The only medical practitioner to disagree with my findings was Mr Kossmann. However, he did not have the benefit of an MRI report when he wrote his report on 21 February 2014. As Associate Professor McGill said in his 1 May 2014 report, the more accurate imaging modality of MRI showed no abnormality of the long head of biceps tendon. In any event, Associate Professor McGill was of the opinion that there was no significant impairment of shoulder function associated even with a complete rupture of a long head of biceps tendon. It did not account for the symptoms Mr Bassili claimed he experienced.
I have also found, on the balance of probabilities, that Mr Bassili did not suffer an aggravation of his calcific rotator cuff disease, which was contributed to, to a significant degree, by his employment with Chubb. Despite having a number of other serious medical conditions, some of which may cause acceleration of degenerative changes in the tendons, there was no evidence of this having occurred in Mr Bassili’s case. If in fact his employment with Chubb caused some increase in the symptoms Mr Bassili developed at the time he claimed he was injured, the evidence points to that increase in symptoms being transient in nature, lasting for around two weeks. That does not account for Mr Bassili’s claimed incapacity.
Accordingly, I find that the decision made by QBE on behalf of Chubb on 20 August 2012, revoking the decision made on 6 February 2012 and in substitution determining that Chubb was liable to pay compensation to Mr Bassili in respect of a temporary aggravation of an underlying constitutional degenerative change of the right shoulder/rotator cuff sustained 3 October 2011 (and/or 5 October 2011), was the correct decision. I affirm that decision.

65. I certify that the preceding 64 (sixty four) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.

...........[sgd].........................................................
Personal Assistant
Dated 14 November 2014

Dates of hearing

21 and 24 March 2014

19, 21 and 22 August 2014

Counsel for the Applicant

Solicitors for the Applicant

Ms C Serpell (21 and 24 March 2014)

Ms M Gocs, Ryan Carlisle Thomas
(21 and 24 March 2014)

Council for the Respondent

Solicitors for the Respondent

Ms A Sdrinis, Angela Sdrinis Legal
(19 August 2014)

Applicant self represented
(21 and 22 August 2014)

Mr P Jones

Ms R Waldron-Hartfield, Moray & Agnew

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/4206
Re	Norman Bassili
APPLICANT
And	Prosegur Australia Pty Ltd
RESPONDENT

Tribunal	Egon Fice, Senior Member
Date	14 November 2014
Place	Melbourne