O'Donnell and K & S Freighters Pty Limited (Compensation)
[2016] AATA 861
•31 October 2016
O'Donnell and K & S Freighters Pty Limited (Compensation) [2016] AATA 861 (31 October 2016)
Division
GENERAL DIVISION
File Number(s)
2012/3679
Re
John O'Donnell
APPLICANT
And
K & S Freighters Pty Limited
RESPONDENT
DECISION
Tribunal Ms J C Kelly, Senior Member,
Dr Saw Hooi Toh, Member,
Dr L. Bygrave, MemberDate 31 October 2016 Place Sydney
The Tribunal sets aside the reviewable decision of 25 June 2012 and substitutes for that decision, the decision that:
(a)As at 20 March 2012, the respondent was liable to pay the applicant compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988, sections 16 and section 19, in respect of the accepted right shoulder injury suffered on 15 October 2009.
(b)As at the date of this decision, the respondent is liable to pay the applicant compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988, sections 16 and section 19, in respect of the accepted right shoulder injury suffered on 15 October 2009. This decision has effect from the date of the Tribunal’s decision.
(c)The respondent is liable to pay the cost of CT Guided Right C7 Perineural Injection given by Dr Ives on 4 April 2012.
The Tribunal will grant the parties liberty to apply within seven days in respect of the question of costs. If no application is made within that time, the Tribunal will make the order that the respondent pay the applicant’s costs of the proceedings.
..................................[sgd]......................................
Ms J C Kelly, Senior Member
CATCHWORDS
COMPENSATION – remittal from Federal Court of Australia – applicant suffered right shoulder condition – whether respondent liable under ss 16 and 19 of Safety, Rehabilitation and Compensation Act 1988 – whether Tribunal can make findings as to applicant’s entitlement to compensation at the date of its own decision – whether Tribunal limited to findings made at the date of the first tier decision – whether decision of Federal Court confines the Tribunal’s consideration of causation issue – Tribunal decided not to confine review of the proceedings – decision set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 25(4A), 27, 33(1), 43, 44(6)
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 14, 16, 19, 64, 66
CASES
Australian Telecommunications Corporation v Davis (1991) 30 FCR 467
Comcare v Lofts (2013) 217 FCR 220
Lees v Comcare (1999) 56 ALD 84
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Smith v Comcare (2014) 64 AAR 205
REASONS FOR DECISION
Ms J C Kelly, Senior Member,
Dr Saw Hooi Toh, Member,
Dr L. Bygrave, MemberIntroduction
This matter concerns claims for compensation under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for injuries suffered in an accident that occurred on 15 October 2009. Liability was accepted under section 14 of the SRC Act to pay compensation in respect of injuries to the applicant’s left leg, left groin, right shoulder, and right wrist, arising from the accident that occurred on 15 October (the accepted injuries).
The matter has come before the Tribunal pursuant to an order made by Perram J in the Federal Court of Australia in O’Donnell v K & S Freighters Pty Ltd [2015] FCA 573, an appeal from the decision of this Tribunal in O’Donnell and K & S Freighters Pty Ltd [2014] AATA 437 (3 July 2014).
On 11 June 2015, Perram J made the following orders:
(i)The appeal be allowed.
(ii)The Respondent is to pay the Appellant’s costs as taxed or agreed.
(iii)The orders made by the Tribunal on 3 July 2014 in proceedings 2012/3679 be set aside.
(iv)Declare that paragraphs 71 and 72 of the Tribunal’s reasons were arrived at in breach of the rules of procedural fairness.
(v)Remit the matter to the Tribunal, freshly constituted, for hearing according to law.
The substantive issues
This Tribunal’s task is to review the reviewable decision dated 25 June 2012. The decision-maker affirmed two separate determinations dated 20 March 2012 and 18 April 2012, and found “K & S Freighters Pty Ltd not presently liable to pay compensation for medical treatment or incapacity under sections 16 and 19 of the SRC Act respectively”. The decision-maker had no new evidence to consider, but had a letter dated 12 June 2012 from the applicant’s legal representative that was considered.
The determination dated 20 March 2012 was:
After having reviewed your letter of 2 March 2012 and in light of the medical report in question of David Maxwell, consultant surgeon dated 20 January 2012 and the provisions of (the SRC Act), we maintain our decision that presently your client does not have entitlement to workers’ compensation benefits under section 16 Medical treatment and section 19 Incapacity payments.
The determination dated 18 April 2012 rejected the request for a right C5/6 epidural steroid injection “pursuant to section 16 of the SRC Act”.
The substantive issues for this Tribunal to decide are therefore:
(d)Was the respondent liable to pay the applicant compensation for medical treatment and/or incapacity under sections 16 and 19 of the SRC Act in respect of his accepted right shoulder injury as of 20 March 2012?
(e)Is the respondent liable to pay the applicant compensation for medical treatment or incapacity under sections 16 and 19 of the SRC Act in respect of his accepted injuries as of the date of the Tribunal’s decision?
(f)Is the respondent liable to pay for a right C5/6 epidural steroid injection pursuant to section 16 of the SRC Act?
The applicant’s argument before the Tribunal was limited to the accepted right shoulder injury. The applicant submitted that “the injury to the neck” is not as important now, but maintains that the epidural steroid injection was appropriate treatment for the accepted injury in 2012.
The preliminary issues
Two preliminary issues arose before this Tribunal before the hearing was held. The Tribunal directed that written submissions and submissions in reply be provided. The parties also made oral submissions. The issues were:
(g)Whether the Tribunal can make findings as to the applicant’s entitlement to compensation for medical treatment pursuant to section 16 and incapacity pursuant to section 19 of the SRC Act as of the date of the Tribunal’s decision, or whether it is confined to the date of the first tier decision, relevantly 20 March 2012. (The temporal issue).
(h)Whether the decision of Perram J dated 11 June 2015 confines the Tribunal’s consideration to the issue of causation, or, in the alternative, whether the Tribunal should exercise its discretion to confine its consideration on remittal to the issue of causation.
At the beginning of the hearing, the Tribunal gave its decision in respect of the second question. It stated that it would hear the matter afresh. That is, it would not confine the hearing to the matters in respect of which the Federal Court had found the first Tribunal had erred. Below are its reasons for that decision and its consideration of the temporal limitation issue.
The temporal issue
In order to answer the preliminary temporal issue, it is useful to summarise the relevant history of this matter which culminated in the determination of 20 March 2012.
Around 10 November 2009, the applicant lodged a claim for workers compensation for injuries suffered on 15 October 2009. He provided information about when and from whom he first sought medical attention, and having been referred to a specialist.
On 1 December 2009, the respondent’s insurer sent to the applicant a determination under the SRC Act. Relevantly, the insurer accepted liability to pay compensation under section 14 in respect of an “injury to the right shoulder, wrist, left leg and groin” sustained on 15 October 2009. The determination also said:
Medical treatment as deemed appropriate by a legally qualified medical practitioner is payable in respect (of the same injuries) pursuant to section 16 of the SRC Act in respect of GP consultations up to and including 31 December 2009.
Physiotherapy in respect of the same injuries was approved in accordance with section 16 of the SRC Act “on an as reasonably required basis up to and including 31 December 2009” and if further physiotherapy was required, an attached Treatment Plan had to be completed and returned for further consideration.
The covering letter stated that the applicant would have to provide further medical evidence to support a claim for compensation after 31 December 2009, and attached for that purpose, a Medical Review Certificate to be filled out by the treating doctor or specialist.
The covering letter also stated:
Please note that K&S Freighters pays for medical treatment in accordance with scheduled rates specified by the relevant health professional’s association, or in accordance with the schedules by relevant worker’s compensation authorities in each state.
In March 2010, specific approval was sought and liability under section 16 was accepted for “arthroscopy of the right shoulder with mini-open cuff repair”. The respondent’s insurer also met the cost of an MRI of the cervical spine carried out on 4 October 2011, on a without prejudice basis, pursuant to section 16.
Apart from those two specific matters, the Tribunal finds on the evidence before it that after liability was accepted on 1 December 2009, the applicant’s costs of medical treatment and physiotherapy for the accepted injuries were being paid pursuant to section 16, and appropriate incapacity payments were being made pursuant to section 19.
On 20 February 2012, the respondent’s insurer wrote to the applicant advising that his claim for the accepted injuries had been reviewed, and based on the report of Dr Maxwell, consultant surgeon, dated 20 January 2012 and the SRC Act, “it appears that presently you have no entitlement to workers’ compensation benefits” under section 16 and 19. The writer gave the applicant the opportunity to provide further evidence to support his claim before the writer made a “determination”.
The applicant’s legal representative responded on 2 March 2012, noting that Dr Maxwell said that the applicant suffered an aggravation of his pre-existing condition, that the applicant instructed that his symptoms continue to be related to his workplace injury, and requested that the insurer seek further medical evidence from the applicant’s treating doctors prior to making a decision.
The determination of 20 March 2012 was subsequently made.
The respondent acknowledged that the decision of the first Tribunal having been set aside by the Federal Court, this Tribunal has yet to exercise its jurisdiction which is conferred by section 64 of the SRC Act, read with section 27 of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The Tribunal accepts the respondent’s submission that the matters decided by the decision-maker in the reviewable decision are the matters it must review. They are set out in paragraph [4] above.
The respondent relied on the authority Lees v Comcare (1999) 56 ALD 84 and in particular paragraph [39] of that decision (emphasis added):
In considering the extent of the power of the AAT when reviewing decisions under the (SRC) Act, it is to be noted, first, that the AAT is authorised by s 64 of the Act to review only reviewable decisions – that is, for present purposes, second tier or reconsideration decisions made under s 62 of the Act. Decisions under s 62 of the Act are the result of the reconsideration by Comcare or a licensed authority of a determination, as defined by s 60 of the Act, concerning which a claimant will have received a notice in writing setting out the terms of the determination and the reasons for the determination (s 61(1)). Secondly, it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers “[f]or the purpose of reviewing” the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the AAT may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The AAT will not be authorised on review of a reviewable decision to exercise any powers and discretions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.
The respondent also relied on Comcare v Lofts (2013) 217 FCR 220, and particularly the analysis of section 16 of the SRC Act at paragraphs [14] and [15]. Mortimer J there said:
Properly construed, s 16 deals with specific and identifiable amounts of compensation for specific and identifiable medical treatment, in relation to an “injury”… The provisions dealing with transport costs descend to a level of particularity which is incompatible with a construction of the whole of this section that allows for some ambit or general claim for medical treatment in relation to an injury. It would not be possible for Comcare to carry out the task s 16 requires – an assessment of the relationship between the injury and the medical treatment, an assessment of reasonableness, and a determination of appropriateness – if there were not specific sums of compensation claimed in relation to the particularised medical treatment for a specific injury.
That is not to say the claimed costs must relate to the past: see Australian Telecommunications Corporation v Davis (1991) 30 FCR 467. However, they must have the requisite level of specificity attached to them to enable Comcare to perform the task s 16 requires…
The respondent set out a similar analysis of Comcare’s liability under section 19 in relation to incapacity as Mortimer J carried out in respect of section 16 in Lofts. The respondent argued that that the decision-maker has to be satisfied that the employee is incapacitated for work as a result of the compensable injury, and make findings about relevant normal weekly earnings in accordance with the SRC Act, and to consider whether the applicant has an ability to earn in accordance with SRC Act. Further, the decision-maker cannot be satisfied that incapacity should not be determined under other sections of the SRC Act without a specific claim, which would generally relate to a period in the past.
The Tribunal accepts the respondent’s submission that the Tribunal’s jurisdiction depends upon the decision which was before the decision-maker who made the reviewable decision and the Tribunal does not have a power to be exercised at large. However, it is the respondent’s final submission that is contentious:
In the present case, by necessity the reviewable decision-maker was limited to the issue determined by the primary decision-maker, being that as at 20 March 2012 the Applicant was not entitled to compensation under ss 16 and 19 of the SRC Act in respect of the injuries.
The respondent accepts that the applicant may make a claim for any incapacity or medical expenses after 20 March 2012, “However, if those claims are made, it is for the Respondent, and not the Tribunal, to make a decision on those issues at first (and second) instance.”
The respondent did not point to a provision of the SRC Act or AAT Act that explicitly confines the consideration of the maker of the reviewable decision to making a decision as of the date of the first determination.
The 20 March 2012 determination and the reviewable decision do not relate to claims for particular medical expenses, but made a general finding as to liability under section 16. They also make a general finding about liability under section 19. Although not addressed by either party, if the respondent is arguing that this Tribunal cannot do that, it must argue that it was not open to the first or second tier decision-maker to make such findings, or point to a legislative provision that so confines this Tribunal.
The reviewable decision affirmed the two determinations under review but also decided that the respondent was not “presently” liable to pay compensation for medical treatment or incapacity under sections 16 and 19 for the accepted injuries. On its face, the reviewable decision found no present liability under those sections as at the date of decision, 25 June 2012.
The maker of the reviewable decision had the power to affirm, revoke or vary the determination in such manner as the person thinks fit.[1]
[1] Section 62(5) of the SRC Act.
The Tribunal may affirm, vary, or set aside the decision under review and make a decision in substitution for the decision set aside, or remit the matter for reconsideration in accordance with directions or recommendations of the Tribunal.[2]
[2] Section 43(1) of the AAT Act.
The respondent accepted that the Tribunal could take into account evidence that came into existence after 20 March 2012, but argued that it could only use that evidence to assist the Tribunal in making a finding as of 20 March 2012. The Tribunal infers that the respondent’s position was that the Tribunal could take into account new evidence in relation to the first determination dated 18 April 2012 relating to the epidural steroid injection.
Section 66 of the SRC Act provides for evidence in proceedings before this Tribunal. Evidence was before the first Tribunal that was not before the first or second tier decision-makers and evidence was before this Tribunal that was not before any of the previous decision-makers.
The respondent did not refer to section 43 of the AAT Act which deals with the Tribunal’s decision on review. Relevantly, the section provides:
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a) affirming the decision under review;
(b) varying the decision under review; or
(c) setting aside the decision under review and:
(i) making a decision in substitution for the decision so set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal
…
(5A) Subject to subsection (5B), a decision of the Tribunal comes into operation forthwith upon the giving of the decision.
(5B) The Tribunal may specify in a decision that the decision is not to come into operation until a later date specified in the decision and, where a later date is so specified, the decision comes into operation on that date.
…
(6) A decision of a person as varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a person, shall, for all purposes (other than the purposes of applications to the Tribunal for a review or of appeals in accordance with section 44), be deemed to be a decision of that person and, upon the coming into operation of the decision of the Tribunal, unless the Tribunal otherwise orders, has effect, or shall be deemed to have had effect, on and from the day on which the decision under review has or had effect. (Emphasis added.)
The Tribunal does not accept the respondent’s submission that “by necessity” the reviewable decision-maker on 25 June 2012 was limited to deciding whether on 20 March 2012 the applicant was entitled to compensation under sections 16 and 19 of the SRC Act in respect of the injuries. It does not accept that Lees and Lofts are authority for that proposition. The issue in Lofts was whether a claim had been made for medical expenses for a particular medical condition. That is not this case. It was in that context that Mortimer J considered the “several qualifications” set out in section 16.
The case of Davis was cited by the Court in Lofts as authority for the proposition that claimed medical costs do not have to relate to the past. The relevant legislation in Davis was the Compensation (Commonwealth Government Employees) Act 1971. In Davis, Heerey J held that that legislation did not limit compensation “for the cost of medical treatment obtained in the past, that is to say prior to the determination of the Commissioner or the AAT”. The AAT made a decision on 25 January 1991 in respect of a compensable injury of 21 March 1983. In part, the AAT determined that “the applicant is entitled to her reasonable costs of treatment, both medical and physiotherapy and to a reasonable time off work to obtain treatment for that incapacity as certified by her medical practitioners, up until May 1998”. His Honour commented that the certification required was not intended to give a right to the injured work conditioned only on a certificate by her medical practitioner, but was inserted to protect Telecom by making it clear that any claims in the future would need to be supported by medical evidence. His Honour dismissed the appeal.
That Her Honour in Lofts cited the case of Davis as she did, is not consistent with the construction of section 16 that the respondent contends Her Honour found.
In Shi v Migration Agents Registration Authority (2008) 235 CLR 286, the High Court considered the question of whether the Tribunal could make a decision on the evidence before it as of the date of its decision. The reviewable decision was made under a different statute, the Migration Act 1958. One of the issues was whether the Tribunal should determine what was the correct or preferable decision when the Authority made its decision, or at the time of its own decision. All five judges of the Court found that the Tribunal could determine the correct or preferable decision at the time of its own decision.
The judges of the Court considered the history of this Tribunal and provisions of the Migration Act 1958 and the AAT Act. The provisions of the AAT Act have not changed relevantly.
On the authority of Shi, and having considered the provisions of the AAT Act and SRC Act, the Tribunal finds that it is open to it as a matter of law and on the evidence before it in this case, to make findings about the applicant’s entitlement to compensation pursuant to section 16 and section 19 of the SRC Act as of 20 March 2012 and as of the date of this Tribunal’s decision.
The second preliminary issue
Following are the reasons for the Tribunal’s decision not to confine its consideration to the matters in respect of which the Federal Court found error.
By the time the hearing in this matter was held, the respondent had conceded that the Tribunal’s jurisdiction was not confined by the Federal Court’s order, but maintained that the Tribunal determines its own procedures and it was within its jurisdiction to confine its consideration to the third theory of causation of the applicant’s injury referred to by Perram J. The third theory referred to by His Honour was Dr Giblin’s evidence that around 10% of persons who had pre-existing minor cervical damage experienced neck problems after suffering a soft tissue injury to their shoulder. Perram J said: “Although not definitive on the issue of pathology, (Dr Giblin) thought this might occur because of increased strain on the neck caused by the shoulder girdle becoming locked… His evidence was that it aggravated it.”
Perram J found that the first Tribunal had not understood or considered that matter and therefore the applicant had been denied procedural fairness “because the essence of the case he was putting was not considered”. For that reason, His Honour set aside the first Tribunal decision.
Both the applicant and respondent acknowledged that as well as finding that the first Tribunal had breached the rules of procedural fairness in relation to Dr Giblin’s third theory of causation, Perram J found that the first Tribunal had breached the rules of natural justice in making adverse credit findings against the applicant in paragraphs [71] and [72] of its decision. His Honour made a declaration that paragraphs [71] and [72] of the decision of the first Tribunal were infected by a lack of procedural fairness but stated that he would not have set aside the decision for that reason because those findings “were disconnected from the final result because they were irrelevant to any part of the Tribunal’s actual reasoning process”.[3] It is for that reason that His Honour said that he would not have set aside the decision “on this ground due to a lack of utility”.[4] The Tribunal does not accept the applicant’s submission that the lack of utility in relation to that ground referred to the fact that his Honour had already dismissed the case on the basis of the denial of procedural fairness in relation to the “third theory” of causation and could not dismiss it again.
[3] At [50] and [53].
[4] At [53].
The respondent submitted that this Tribunal should not rely on paragraphs [71] and [72] of the first Tribunal’s decision “unless, in the conduct of the remitted hearing the credibility findings they involve are specifically raised and responded to in the proceedings so as to nullify the prior lack of procedural fairness”.
The applicant argued that the decision of the first Tribunal had been set aside, and this Tribunal starts from scratch, reviewing the reviewable decisions on their merits. The parties agreed that the Tribunal may have regard to the record of proceedings in the previous hearing. The applicant did not accept that the Tribunal could adopt findings made by the previous Tribunal. It argued that to do so would be to act ultra vires. It also argued that it would be undesirable in view of the remittal to a freshly constituted Tribunal.
Having conceded that the Tribunal’s jurisdiction was not confined by the Federal Court’s decision, the respondent contended that it is open to the Tribunal to limit the scope of its review. It argued that the discretion arises in two ways:
(a) The Tribunal’s general statutory discretion to limit the scope of the review; and
(b) The Tribunal’s ability to adopt the findings of the previous Tribunal without rehearing the evidence.
The respondent invited the Tribunal to confine its consideration to the “third theory” of causation and to adopt findings made by the first Tribunal which were not inconsistent with the Federal Court’s decision, other than the credibility findings. In support of that argument, the respondent referred to the following provisions of the AAT Act.
Section 25(4A) provides:
The Tribunal may determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers.
Section 33(1) provides that in a proceeding before the Tribunal:
(a) the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b) the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; and
(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such a manner as it thinks appropriate.
Section 44(6)(b) provides, in relation to cases remitted from the Federal Court:
(b) whether or not the Tribunal is reconstituted for the hearing – the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court.
Section 2A provides:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a) is accessible; and
(b) is fair, just, economical, informal and quick; and
(c) is proportionate to the importance and complexity of the matter; and
(d) promotes public trust and confidence in the decision-making of the Tribunal.
The respondent referred to Smith v Comcare (2014) 64 AAR 205 where the Court, at [70] referred to the High Court’s decision in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 and said:
The effect of the orders in Wang was that the Tribunal was to carry out its task afresh, see for example at [67] per Gummow and Hayne JJ, but it was accepted that, although not bound by its earlier findings, the second Tribunal could adopt findings from the first review (at least where unaffected by the error or errors of law identified by the reviewing court): see at [68] and [74] per Gummow and Hayne JJ.
The Tribunal notes that Wang concerned the Refugee Review Tribunal which is constituted pursuant to the Migration Act 1958, but accepts the applicant’s submission that this Tribunal has the power to limit its review in appropriate cases. The Tribunal does not consider that this is such a case for the following reasons. The decision of the first Tribunal has been set aside. The Federal Court has not made any direction pursuant to section 44(4) or (5) of the AAT Act that confines this Tribunal’s hearing. There is nothing in his Honour’s decision to suggest that the respondent submitted that such a direction should be made. There is no agreement between the parties about findings made by the first Tribunal that this Tribunal should accept. The Tribunal is exercising its jurisdiction pursuant to the SRC Act. New evidence, including medical evidence is before the Tribunal which was not before the first Tribunal, and arrangements had been made for three medical practitioners to give concurrent evidence before the Tribunal.
Consideration of the evidence
The evidence before the Tribunal
The evidence before the Tribunal included the 408 pages of documents provided to the first Tribunal pursuant to section 37 of the AAT Act (the T documents), four statements made by the applicant and his oral evidence, five reports from Dr Giblin, Orthopaedic Surgeon, four reports from Dr Maxwell, Orthopaedic and Spinal Surgeon, three reports from Dr Stephenson, Orthopaedic Surgeon, a report from Dr Duckworth, Shoulder and Elbow Surgeon, and selected material summonsed from him, selected documents summonsed from Dr McMaster, selected clinical notes of Dr Wong, the applicant’s treating General Practitioner, a Workplace Progress Report dated 5 March 2012, and the transcript of the hearing before the first Tribunal. The Tribunal also had the benefit of Doctors Giblin, Maxwell and Stephenson giving concurrent oral evidence.
The Tribunal has taken into account the statements of facts, issues and contentions filed by both parties and their written and oral submissions.
The history of the applicant’s right shoulder condition
The following information is derived from contemporaneous documentation before the Tribunal, apart from clinical notes. It is a summary of the history of the applicant’s right shoulder condition, including treatment, his claimed symptoms, doctors’ opinions and findings on examination, work restrictions and his reaction to his condition.
Dr Wong recorded in the Medical Certificate he issued on the day of the accident, 15 October 2009, that the applicant had injured his “left knee & shoulder but after noted pain to left groin”. The incident report completed by the “Supervisor/Manager” and stamped “16 October 2009” records that the applicant injured his “left knee and groin and right shoulder and right wrist”.
The applicant was referred to Doctor Hollands, Gastrointestinal, Hepatobiliary and Laparoscopic Surgeon in relation to pain in his left groin. Doctor Hollands recorded that the applicant’s “predominant injuries were to his left knee and left shoulder”.
In his claim form for compensation signed on 10 November 2009, the applicant stated that his left groin and right shoulder had been injured. He stated that he had “tripped over steel bar protruding from ground”.
The respondent advised the insurer on 13 November 2009 that the “alleged condition” was “left knee, left groin, right shoulder, right wrist” and that the applicant was on modified duties from 15 October 2009 to 13 November 2009.
On 1 December 2009, the insurer determined that the respondent was liable to pay compensation pursuant to section 14, in respect of an “injury to the right shoulder, wrist, left leg and groin”. The insurer accepted liability to pay for medical treatment “as deemed appropriate by a legally qualified medical practitioner” in respect of those injuries pursuant to section 16 of the SRC Act “up to and including 31 December 2009”. The determination also approved physiotherapy in respect of the accepted injuries in accordance with section 16 of the SRC Act “on an as reasonably required basis up to and including 31 December 2009”. If such treatment was required beyond that date, a treatment plan was attached and had to be completed and returned.
The insurer also advised the applicant that the respondent pays for medical treatment according to specified schedules.
The respondent referred the applicant to a rehabilitation provider in correspondence dated 9 December 2009.
On 5 December 2009 the applicant’s current restrictions were normal hours, lifting up to 10 kg, and allow to rest frequently and work at his own pace. Recommendations were that he request assistance with tasks outside his restrictions, inform his supervisor of any difficulties he experienced on his return to work, avoid tasks he believes may aggravate his condition, and take five minute rest breaks every 30 minutes to perform recommended exercises.
In an email dated 16 December 2009 Ms Swain, Senior Rehabilitation Consultant, noted the following:
[the applicant’s] major barrier to a sustainable recovery and a full return to work is his resistance to treatment. He has refused medication and physiotherapy and is participating in his own exercise plan, which in my opinion is not appropriate. He should have a mobilising and strengthening exercise program recommended by a physio.
On that day Dr Wong had advised that he would refer the applicant to a shoulder specialist if his symptoms had not improved on review in January 2010.
A report from the rehabilitation provider dated 17 December 2009 provided the following information. An ultrasound of the applicant’s right shoulder was done on 9 November 2009 which revealed “subdeltoid bursitis and a mild 6 mm partial thickness tear of the supraspinatus tendon”. The applicant had been advised to consult Dr Wong about taking mild pain relief to help him settle at night and commencing a formal physiotherapy and exercise program. The applicant complained of four hours sleep per night due to his shoulder injury. He had avoided driving his manual vehicle for five weeks following his injuries and was using his left hand only to garden. He was resistant to accepting and participating in recommended treatment options, which was a barrier to returning to work.
That report also recorded the applicant’s pre-injury role as yard hand, that he worked from Monday to Friday, 6 AM to 2:30 PM undertaking the following duties:
·loading/unloading
·driving gantry
·completing job sheets and invoices
·strapping down load using a binder bar
·unhitching trailers
·tarping and untarping
·chaining
·hand-stacking pallets
·gating, that is lifting gates from racks under trailer (18 in total)
·forklift driving
A letter to the applicant dated 11 January 2010 enclosed a copy of the return to work plan.
Dr Wong set out the following history in his referral to Dr Duckworth dated 1 February 2010. On 4 November 2009 he described “now ++ pain to right shoulder”. On 9 November 2009 an ultrasound of the shoulder was undertaken as described above. On 1 February 2010 the applicant’s left groin and right shoulder injury was good with rest but now “++ pain after swimming”. On examination the applicant had almost a full range of movement (ROM) in his shoulder, but it was painful and weak.
On 1 February 2010, the applicant’s restrictions were normal hours, lifting up to 5 kg and allow to rest frequently and work at his own pace. His duties were fork lift driving, assisting with clerical and administration tasks, driving utility vehicle and appropriate duties with certified restrictions.[5]
[5] Suitable Duties Plan, T16.
On 25 February 2010, Dr Duckworth examined the applicant and reported the following.[6] The applicant has pain when swimming, lifting, and when bringing his arm downwards. He has ongoing pain at night and no specific treatment so far. On examination, the applicant “could elevate his arm to 150 degrees, externally rotate to 70 degrees and internally rotate to T12. He had a lot of pain around his biceps tendon and positive biceps signs. He had mild pain involving his rotator cuff.” An ultrasound was inconclusive and an X-ray was apparently normal. Dr Duckworth had organised an MRI scan “to delineate the pathology accurately”.
[6] T17
Dr Duckworth reviewed the applicant on 3 March 2010.[7] He made the following comments. The MRI scan shows an acute full thickness tear of the rotator cuff. The biceps appeared to be intact. The applicant has ongoing pain, particularly at night, and with use. Dr Duckworth gave the applicant the option of an arthroscopy of his right shoulder and a mini-open rotator cuff repair. The applicant understood that it could take six months to get over the procedure and the arm may never be 100%.
[7] T18
A request and approval of surgery shows that those two procedures were carried out on 18 March 2010.[8] The Return to Work Plan was amended. The target start date was 16 March 2010 and the target end date was 18 June 2010.[9]
[8] T19
[9] T20
The Operation Report confirms that arthroscopy of the right shoulder, mini-open rotator cuff repair and biceps tenodesis were performed 18 March 2010.[10] Dr Duckworth wrote the following. The applicant understood the risks and complications associated with surgery, some of which include infection, neurovascular damage, stiffness, re-tearing of tendons, ongoing pain, and the need for revision surgery. He said that excellent repair was made in relation to the biceps tenodesis and that a good repair was achieved in relation to the supraspinatus tear.
[10] T22
Dr Duckworth’s post-operative orders were IV antibiotics, analgesia, rest arm in a sling for a week and then commence passive range of motion exercises, and that the applicant may have problems returning to physical work as a result of this tear.
A rehabilitation report dated 29 March 2010 refers to a work visit to check on the applicant’s progress on 2 March 2010, that is, prior to surgery.[11] At that time the applicant reported that he was in constant pain at levels of 8 to 9 (where zero is no pain and 10 requires hospitalisation) and that driving a forklift on uneven ground was aggravating his symptom. He said that he preferred to drive the outdoor forklift which has bigger wheels and is used on even ground. He reported that he needed a day off each week due to shoulder pain and fatigue; however, he had not reported this to anyone or seen Dr Wong for review, and was using his sick leave to cover the time off.
[11] T23
In an email dated 15 April 2010, Ms Swain, wrote that she had just spoken to the applicant.[12] “He is a very frustrated and angry man, he wants it all to be over and to return to his normal job, which he enjoys, and is absolutely adamant that he will not return in any other capacity.” “… He is illiterate and the thought of performing clerical duties is terrifying for him.” She also noted that the applicant thought he would “never” be medically cleared to return to work, but nonetheless felt he was being “pushed back” to work.
[12] T25
Dr Duckworth reviewed the applicant on 28 April 2010.[13] He wrote that the applicant was “improving but still had pain, particularly at night”. He could elevate to 90° and externally rotate to 30°.” The doctor recommended that the applicant come out of his sling and have some physiotherapy. He was not to work in the meantime. The doctor noted that he would like to see the applicant six weeks later.
[13] T26
A rehabilitation progress report dated 2 June 2010 reported the following.[14] The applicant was having physiotherapy as of 17 May 2010. The physiotherapist reported that the range of movement in the applicant’s right shoulder was slowly improving and he was progressing well with his mobilising, strengthening and hydrotherapy programs. The applicant was reporting persisting shoulder pain “however this was resolving with treatment”. On 1 June 2010 Ms Swain contacted the applicant who reported that he was improving, however continued to experience pain at constant levels of seven and was taking Neurofen tablets occasionally after physiotherapy. He was continuing his exercise program consisting of physiotherapy and hydrotherapy twice a week and home exercises. He did not consent to the rehabilitation provider attending his medical reviews.
[14] T27
Dr Duckworth reviewed the applicant on 9 June 2010.[15] He reported that the applicant has “a lot of stiffness and wasting around to shoulder… he could elevate to 120°, externally rotate to 30° and internally rotate to L3”. Dr Duckworth recommended a lot of stretches, hydrotherapy and physiotherapy. He noted the applicant “really has to work on range of motion and strength.”
[15] T28
On 15 June 2010 in an email, Ms Swain reported the following.[16] Dr Wong had cleared the applicant to return to work on light duties, four hours a day, three days a week from 16 June 2010. The applicant had a 5 kg lifting limit and was not able to drive. The respondent apparently had a problem because there were no appropriate duties available and would have to look into it. Another problem was how the applicant would get to and from work. In an email dated 18 June 2010, Ms Swain noted that the applicant was keen to return to work to perform administrative assistant duties that his work had available and was considering moving to a friend’s home closer to work in order to arrange transport more easily.[17]
[16] T29
[17] T30
A progress report dated 30 June 2010 recorded the following.[18] The transport issue had not been resolved and the applicant had not returned to work. On that day the applicant had advised that his physiotherapist had indicated that he was developing a frozen shoulder. He was attending physiotherapy and hydrotherapy twice a week and participating in a home exercise program “however his progress is limited due to pain and poor range of movement in the shoulder”.
[18] T32
Dr Duckworth reviewed the applicant on 28 July 2010.[19] He recorded that the applicant has done well “in terms of the repair and has no pain”. The applicant had ongoing stiffness related to the surgery. The applicant had some improvement. The doctor recommended ongoing stretches and time and also some hydrotherapy. The applicant had developed a capsulitis. Dr Duckworth wanted to see the applicant in October “and if his movement has not improved he may require manipulation of his shoulder”.
[19] T33
The rehabilitation progress report dated 2 August 2010 reported the following. The applicant had returned to work performing suitable duties on 30 July 2010.[20] He was certified fit for suitable duties four hours a day, five days a week with a 10 kg lifting restriction. His duties consisted of assisting in the yard and with clerical and administrative tasks within his restrictions. The physiotherapist had reported on 30 July 2010 that the applicant had developed adhesive capsulitis and was to commence a three-month gym program focusing on strengthening and mobilising the shoulder.
[20] T34
The rehabilitation progress report of 30 August 2010 recorded that the applicant’s duties included driving the forklift as of 27 August 2010 as well as the other duties previously listed.[21] On 30 August 2010, the applicant reported that he was managing his duties without difficulty and no longer experienced the pre-operative pain in his shoulder while driving the forklift. The applicant was observed to be much more relaxed and positive and was keen to improve his physical fitness having commenced a supervised gym program.
[21] T38
On 9 September 2010 Dr Duckworth wrote the following to the Senior Rehabilitation Consultant.[22] The applicant will always have difficulty with overhead use of his arm and heavy lifting and repetitive use of his arm out to the side. His long-term prognosis is slightly guarded. He had a large rotator cuff tear requiring surgery. He may have difficulty returning to his pre-injury duties. He was currently fit for part-time office duties, possibly a couple of hours per day, a couple of days per week. He was currently able to perform duties such as driving a forklift and utility vehicles. He was currently undergoing physiotherapy and stretches and had to continue. The applicant had no pain but had some stiffness.
[22] T42
Ms Swain wrote in an email dated 23 September 2010 that the applicant had had a recurrence of an inguinal hernia which may require surgical repair. This could have put off his current exercise program and impact on his shoulder injury recovery.[23]
[23] T45
Dr Duckworth reported the following when he reviewed the applicant on 20 October 2010.[24] The applicant had:
… good function and minimal pain. His motion has improved… He could elevate to 140°, externally rotate to 60° and abduct to 130°. He had no pain and had reasonable strength. He was keen to return to normal duties but cannot do so at this stage because of his impending hernia surgery.
[24] T49
Dr Duckworth was happy for the applicant to return to normal duties from the point of view of his shoulder once he had had his hernia surgery. Dr Duckworth did not mention capsulitis.
The rehabilitation progress report of 29 October 2010 stated the following. The applicant was performing suitable duties consisting of assisting in the yard, driving the forklift, and clerical and administrative tasks within his 10 kg lifting restriction. The applicant had said on 1 October 2010 that his shoulder remained frozen however he was managing his duties while complying with the 10 kg lifting restriction for both the shoulder injury and recurrence of his hernias. His exercise program remained on hold until he recovered from pending abdominal surgery.
The progress report dated 29 November 2010 records the following. The applicant had undergone abdominal surgery on 10 November 2010 by Dr Hollands and was unfit for work from that date until 6 December 2010 for that reason. The applicant was certified fit for pre-injury duties from 29 November 2010 in relation to his shoulder injury.
In his report dated 30 November 2010, Dr Hollands said that the applicant was also having problems mobilising his shoulder. The doctor was concerned about him returning to normal duties in case his efforts to protect his shoulder exacerbated problems with his groin, and recommended that the applicant return to normal duties six weeks from the time of his laparoscopic surgery.
In an email dated 6 December 2010, Ms Swain reported that the applicant had developed an infection at the surgical site and would probably start on antibiotics.[25]
[25] T54
On 12 January 2011, the physiotherapist sought approval for the applicant to recommence in the gym following his hernia surgery.[26]
[26] T55
The rehabilitation progress report dated 2 February 2011 included the following.[27] The applicant had recommenced his gym membership. The applicant was working eight hours per day, three days per week. His duties included forklift driving, lifting up to his 20 kg lifting restriction and working at above waist level. The applicant reported that he was not performing any lifting duties given his lifting restriction of 20 kg.
[27] T56
On 8 February 2011, Dr Hollands wrote to Dr Wong. He thought that the applicant should be given a final Work Cover certificate stating that he was fit to return to normal duties. Nonetheless the applicant had been warned to be careful that any abnormal movements precipitated by his incapacitated right arm increased the risk of injury to his groin or back.
On 15 February 2011, Dr Wong referred the applicant to Dr Walker, Consultant Neurologist, for painful right arm.[28] Dr Wong wrote:
still ++poor ROM – aggravated by exercise. c/o nerve pain down to right thumb. Getting worse., Ex: Neck – slight stiffness but right wrist – ++ trigger point (but) nil weakness or muscle wasting. Need to rule out entrapment symptoms.
[28] T58
Dr Wong noted that a cervical X-ray and nerve conduction study had been done. He was trialling Neurotin.
Dr Duckworth reviewed the applicant on 22 February 2011.[29] He wrote that there had been a slight improvement in the range of motion but that the applicant had a lot of nerve pain radiating into the lateral cutaneous nerve of the forearm, and he agreed with the referral to Dr Walker. Dr Duckworth wrote that the applicant will always have some chronic problems with his shoulder and will always have difficulty with overhead use of his arm and heavy lifting and cannot return to heavy physical work. He noted “There is a definite link between his neck and shoulder pain and nerve pain.”
[29] T59
A Rehabilitation Final Assessment Report with an assessment date of 10 March 2011 stated that the applicant had recommenced his gym program on 11 January 2011 and reported increased nerve pain down the anterolateral aspect of his right forearm.[30] The applicant stated that he had been experiencing this since the surgery and that Dr Duckworth had advised him that it would settle within 18 months. Recently the applicant said that pain had worsened. It was reported that the applicant had upgraded his working hours to 8 hours per day, five days a week however they had been recently downgraded back to 4 hours for five days a week “due to increasing pins and needles and nerve pain radiating down the anterolateral aspect of his right forearm”.
[30] T60
The Cervical Spine X-ray report dated 24 March 2011 noted degenerative changes “at C6/7 with disc narrowing and endplate spurring and less marked at C5/6” and “at least minor osteophyte encroachment on the right exit foramina at these levels”.[31]
[31] T62
The rehabilitation Closure Report dated 25 March 2011 noted that the applicant was certified for his pre-injury duties from 15 February 2011.[32] Restrictions from his current shoulder injury meant that was performing suitable duties including counting ropes, straps, tarps, curtains and sheets of ply, driving a forklift, driving a utility vehicle, driving a gantry, and driving a yard sweeper.
[32] T63
Dr Wong referred the applicant to Dr Walker, Consultant Neurologist, who reported the following on 28 March 2011.[33] After his arm was in a sling for six weeks, the applicant noticed pain radiating from the level of the scar down his right arm laterally to the level of the wrist. The area is hyperaesthetic and does not involve a single nerve, but rather parts of the axillary nerve, posterior brachial cutaneous nerve and lateral anti-brachial cutaneous nerve. The applicant had noticed some clawing of his right hand, but on examination, Dr Walker could not detect any definite muscle weakness and the applicant’s reflexes were preserved. The nerve conduction study demonstrated normal motor and sensory conduction. Dr Walker was not sure what caused the applicant’s symptoms but recommended an MRI to exclude a radiculopathy.
[33] T64
Dr Maxwell examined the applicant on 19 May 2011 and wrote a report of that date.[34] In his opinion, the X-rays of the applicant’s cervical spine taken on 24 March 2011 “show excellent disk space preservation. There was a separate ossicle at the anterior aspect of the C6 vertebral body. This is of no clinical significance.” Dr Maxwell set out the range of movement in the applicant’s cervical spine and shoulders. He found no evidence of capsulitis but the applicant had “restriction of abduction and flexion of his right shoulder which may be secondary to disuse although this is not entirely consistent because there is no muscle wasting of his right arm”. Dr Maxwell was not certain whether the restriction was voluntary or involuntary. He agreed with Dr Walker that the nerve pain the applicant was experiencing down his right arm “does not fit any particular dermatomal pattern nor any pattern of a single peripheral nerve. It is therefore difficult to find any specific pathology for this symptom.” Dr Maxwell was not convinced that the applicant had a lesion of the survival spine which was responsible for the symptoms. There was no evidence that he had injured his cervical spine in the fall at work. The doctor could see no reason why the applicant should have an MRI scan of his cervical spine. He thought that the applicant should be upgraded to return to his previous duties.
[34] T65
On reviewing the applicant on 4 July 2011, Dr Duckworth reported that the applicant had a limited range of motion of the shoulder and pain overhead due to the chronicity of the tear. He maintained his view that the applicant’s shoulder “would never be 100%” and explained to the applicant that had to remain on permanent restricted duties avoiding a lot of overhead use of his arm and heavy lifting.
On 24 June 2011 the rehabilitation provider, the respondent, and the applicant met to discuss Dr Maxwell’s report and provide to the applicant a Suitable Duties Upgrading Schedule to upgrade to pre-injury duties over one month.[35] On 27 July 2011 the respondent instructed the rehabilitation provider to close the rehabilitation programme.[36] On 25 July 2011 the respondent received a request from the applicant for a reconsideration of the rehabilitation programme determination dated 24 June 2011.[37]
[35] T70
[36] T72
[37] T79
The applicant’s solicitor lodged a claim for permanent impairment and non-economic loss on 31 August 2011 in respect of his right shoulder ligament tear, although it was not completed correctly until 10 January 2012.[38] Dr Stephenson assessed the applicant on 27 February 2012 and wrote a report dated 29 February 2012. The claim was rejected on 11 April 2012.[39] Dr Stephenson accepted that right shoulder pain related to the accepted injury but did not accept that pins and needles did.
[38] T75 and T83
[39] T100
On 29 September 2011 the insurer agreed to pay for an MRI on a without prejudice basis.[40] The MRI was undertaken on 4 October 2011.
[40] T77
On 15 November 2011 the applicant met with the rehabilitation provider, a representative of the respondent, and the applicant’s supervisor.[41] The issues discussed were the applicant’s inability to do the pre-injury duties, whether that was due to his shoulder or his neck, his reluctance to do two hours of office work, and his taking time off without appropriately notifying the respondent.
[41] T81
Doctor Maxwell re-examined the applicant on 16 December 2011 and wrote a report dated 20 January 2012 in which he noted the following.[42] The applicant said he was experiencing pain on the right side of his neck and right shoulder and in his right wrist. He feels pins and needles radiating down the posterior aspect of his arm. He experiences numbness in his right thumb, index and middle fingers. His little finger is not numb. His right thumb had become numb 4 weeks prior to the examination. He experiences pain in the wrist but does not have pain in the arm constantly. He experiences a shooting pain in the right arm if he moves his neck to the right. He was taking Neurofen Plus.
[42] T85
Doctor Maxwell reported that the MRI scan performed on 4 October 2011 showed “some narrowing of the intervertebral foramina at C6/7 on the right. There were some age-related changes with potential C7 nerve root irritation”. In summary, Dr Maxwell said that the applicant had developed increasing symptoms radiating into his right arm associated with neck movement. He had developed some wasting of his right arm secondary to disuse, perhaps due to a chronic C6 or C7 nerve root lesion. Dr Maxwell noted that the applicant did not really develop pain radiating down his arm in a radicular fashion until the recovery period from his right shoulder surgery. In his opinion it was certainly possible that the applicant was suffering from radiculopathy to the C6 or C7 nerve root which was constitutional. The applicant’s radicular pain down the right arm was not consistent with the mechanism of his initial injury. He did not consider there was a direct relationship between the applicant’s cervical symptoms and the right shoulder injury or surgery performed by Dr Duckworth. Dr Maxwell did not accept that the applicant was voluntarily exaggerating his symptoms, consciously guarding restriction of movement, displaying symptoms and examination findings inconsistent with the claimed condition, or demonstrating a range of movements during passive observation which were not replicated during clinical examination. In Dr Maxwell’s opinion, the applicant’s radicular pain may make it difficult for him to engage in work at the same level he was engaged by the respondent immediately before the onset of that pain. He may require treatment. Dr Maxwell suggested limitations because the applicant would have difficulty doing overhead lifting or repetitive moving of his neck. He could still drive a forklift but would have difficulty lifting objects greater than 15 kg. The prognosis for continuing radicular pain was guarded.
A preliminary decision of 20 February 2012 was made based on that report of Dr Maxwell. On 20 March 2012, the preliminary decision was maintained, “that presently your client does not have entitlement to workers’ compensation benefits under section 16 Medical treatment and section 19 Incapacity payments” for “injury to the right shoulder, wrist, left leg and groin sustained on 15 October 2009”.
The applicant claimed compensation for a fall on 1 February 2012 which aggravated his right shoulder, arm and neck.[43] The respondent accepted liability pursuant to section 14 of the SRC act in respect of aggravation of right shoulder injury sustained on 1 February 2012 but did not accept liability under section 16 and section 19 effective from 1 March 2012.[44]
[43] T87
[44] T95
Dr McMaster, Neurosurgeon, saw the applicant on 2 April 2012 and wrote a report to Dr Wong the following day.[45] The applicant had described pain which radiated into the right arm and into the base of the right thumb. He had had numbness in the right thumb since June the previous year. In her opinion, the applicant’s symptoms would be consistent with a right “C6 +/- C7” radiculopathy which she attributed to the changes visualised on his MRI scan at C5/6 and C6/7. She gave him a request form to try a right C5/6 epidural steroid injection. The insurer refused the compensation claim for that injection on 18 April 2012.[46]
[45] T98
[46] T101
A “CT Guided Right C7 Perineural Injection” was given by Dr Jay Ives on 4 April 2012 after discussion with the applicant “regarding his consultation with Dr McMaster, and review of the imaging”.[47] Dr Ives directed his injection to the “narrowed right C6/7 neural foramen”.
[47] T99
Findings
Is the respondent liable to pay for a right C5/6 epidural steroid injection pursuant to section 16 of the SRC Act?
The Tribunal finds that the injection given by Dr Ives on 4 April 2012 was not the same as the treatment recommended by Dr McMaster, but was the treatment he determined was best for the C6/7 radicular pain the applicant was suffering.
We prefer the evidence of a neurologist about nerve pain to the opinion of a doctor of another specialty. In March 2012, Dr McMaster was satisfied that the applicant’s symptoms were consistent with right C6/7 radiculopathy, as shown on the MRI scan.
The first report of the applicant having nerve pain appears in Dr Duckworth’s medical notes on 20 October 2010. Dr Duckworth reported “nerve pain – down to wrist”. Dr Wong records in his medical notes on Tuesday 15 February 2011 that the applicant had nerve pain down to his right thumb. Dr Duckworth’s record of 22 February 2011 is in similar terms.
The applicant said during cross-examination that the nerve pain began when he was doing a gym program, using weights and trying to build up the muscles in his shoulder. There is no contemporaneous note of that history being given to Dr Duckworth, to Dr Wong or to Dr Walker or to any doctor thereafter.
The applicant commenced the three month gym program after 30 July 2010 when the physiotherapist reported that the applicant would begin that program. On 12 August 2010, Dr Wong wrote “more pain due to aggressive physio”, which is consistent with the applicant having begun the gym program. That program probably ceased around 23 September 2010 when Ms Swain reported the recurrence of the inguinal hernia and the need to put off that exercise program.
The applicant resumed his gym training by at least 2 February 2011, as noted in the rehabilitation progress report of that date. From the contemporaneous reports of nerve pain to Dr Duckworth and Dr Wong, the nerve pain had extended to the right thumb by February 2011.
It is apparent from the summary of the evidence set out above, that Dr Maxwell changed his opinion about the nerve pain after he had the benefit of seeing the MRI report of 4 October 2011. In his report of 20 January 2012, the doctor accepted that the applicant had developed increasing symptoms radiating into his right arm associated with neck movement, perhaps due to a chronic C6 or C7 nerve root lesion. However, in his view that was not consistent with the mechanism of the initial injury or the surgery performed by Dr Duckworth but was constitutional. The Tribunal accepts that is so. However, Dr Maxwell was not aware of the history the applicant gave the Tribunal about the gym work or the contemporaneous records described above. At the hearing, Dr Maxwell said that the applicant had age-related changes to his spine and was more susceptible to a pinched nerve. In his opinion, the radicular symptoms had resolved. He accepted that a shoulder injury of the kind the applicant suffered can cause pain in the trapezius radiating into the neck but distinguished that from the radicular pain.
Dr Maxwell was asked at the hearing whether physiotherapy could have “something to do with” the nerve pain. Dr Maxwell said the applicant was undergoing physiotherapy on 9 June 2010 and did not complain of such pain in July 2010, which was inconsistent with such a relationship.
That evidence does not assist the Tribunal because Dr Maxwell was unaware of the history this Tribunal has found that is consistent with there being a relationship between the gym program and the applicant’s radicular pain.
The Tribunal accepts that Dr Stephenson was correct in saying that the nerve pain was not caused by the initial fall. However, he also was not aware of the relevant history described above.
Dr Giblin thought that at the time of the shoulder operation, there was some underlying arthritis and the nerve could have been pinched, including by traction during the operation, or that it could have been pinched because of adhesions and the shoulder putting more traction on C6/C7. He said that the applicant may not have noticed the pain after the operation because of interscalene block anaesthesia, and because he was wearing a sling.
In oral evidence, Dr Duckworth said that during the operation he did not use the scalene block or traction. He also said that it was not possible that the nerve would have been damaged with the arm in a sling and it was not possible for a stiff shoulder to give rise to the pinched nerve in the neck.
Dr Giblin’s evidence about the cause of the nerve pain in February 2011 was speculative and refuted by Dr Duckworth, whose evidence we accept. Dr Duckworth is a Shoulder and Elbow Surgeon and had operated on the applicant’s shoulder.
Dr Giblin also speculated that the nerve pain had been caused by the physiotherapy, but did not have the history that the Tribunal has.
The Tribunal accepts the applicant’s account that the nerve or radicular pain began while he was undertaking the gym program. Although the applicant did not report that causative link at that time, that history is consistent with the contemporaneous reports about the gym program and the applicant’s reports of radicular pain to Dr Duckworth in October 2010 and to Dr Wong and Dr Duckworth in February 2011. That history shows that the radicular pain began after he began the gym program in about August 2010 and worsened when the applicant resumed the program in early February 2011. In making those findings, we have taken into account that the applicant has from time to time given a history that is not consistent with contemporaneous records. However, in this case, the applicant’s evidence is supported by the contemporaneous reports to doctors and the rehabilitation provider. The Tribunal does not criticise the applicant for not reporting the connection between his gym activities and the radicular pain at that time. What was reported would depend on what he was asked. He was recovering from a shoulder operation, was undergoing rehabilitation, and was in the midst of waiting for, undergoing and recovering from an operation for an inguinal hernia. The consequences of the 2009 accident have been complex and have extended over many years.
For the above reasons, the Tribunal finds that the radicular pain for which the injection was given on 4 April 2012 was caused by the applicant using weights and trying to build up the muscles in his shoulder while undertaking his gym training in accordance with his rehabilitation program, following his shoulder operation. That gym work aggravated the constitutional changes at C6/7, resulting in radicular pain. The injection was medical treatment obtained in relation to the accepted injury, being treatment that it was reasonable for the employee, the applicant, to obtain in the circumstances.
The Tribunal will set aside the reviewable decision dated 25 June 2012 which affirmed the determination dated 18 April 2012 rejecting the request for a right C5/6 epidural steroid injection pursuant to section 16 of the SRC Act and substitute for that decision the decision that the respondent is liable to pay the cost of CT Guided Right C7 Perineural Injection given Dr Ives on 4 April 2012.
Was the applicant entitled to workers’ compensation benefits under section 16 Medical treatment and section 19 Incapacity payments as of 20 March 2012 in respect of his right accepted shoulder injury?
From the reasons set out above, it follows that the applicant was entitled to workers’ compensation benefits under section 16 of the SRC Act as of 20 March 2012.
The applicant told the Tribunal that after the injection into his neck in April 2012, he felt better, slept better, and it numbed the pain in his wrist but his shoulder was still aggravated. He also said that he only had relief in his right thumb but still had bearable shoulder pain. That lasted only three months, and it came back. The applicant said that when sitting down, he had pain that was 3 out of 10, a constant dull pain and constant pain in his right wrist. It is worse if he raises his shoulder and if it bounces, which we understand was referring to what happened when he was driving a fork lift. He has the controls in his right hand. There is a bump at the entrance. He works 8 hours. At the end of a shift his pain level is 4 or 5. The more days he works, the worse it is. He has a lot of trouble sleeping, getting only two or three hours’ sleep. He tries to lie on back rolls. He takes Neurofen Plus. He tried Lyrica but does not like it. He tries to live with the pain. He stops and rests and if it gets too bad he says that he is sorry and cannot do any more that day. If he has two days off, he has to get a medical certificate.
As of 11 February 2013, Dr Giblin considered that the applicant had recovered from the injury to the nerve and his pain was no longer strictly radicular. He described the applicant’s pain at that time as embryological or scleratomal and not fitting with a neurological injury. As of May 2016 Dr Giblin could not find sufficient evidence that the pain the applicant complained of was radicular.
During oral evidence, Dr Maxwell gave as an example of scleratomol pain, pain down the left arm caused by a heart attack. Dr Maxwell said that the applicant was suffering pain in the shoulder but was feeling pain in the shoulder and the base of his thumb. He described in detail how the shoulder and muscles of the arm are innervated by the same dermatome. He described the pain in the thumb as referred pain rather than radicular pain. Dr Maxwell agreed, when asked by Dr Toh, that the pain the applicant was feeling currently in his wrist was scleratomal pain coming from his shoulder. In his view, there is a relationship between the applicant’s shoulder symptomatology and his employment with the respondent. In his most recent report of 28 April 2016, Dr Maxwell wrote that the applicant’s capacity for work is “related” to a certain extent by the stiffness and discomfort in his right shoulder and he should avoid heavy overhead lifting. Dr Maxwell noted that the applicant was lifting up to 20kg and may drive a forklift, which he considered “suitable”. The Tribunal infers that “related” is a typing error, and the word should be “limited”.
The medical evidence in this case was complicated by the fact that Doctors Maxwell, Giblin and Stephenson did not have the history before them that the Tribunal has found. Further, their focus was on the applicant’s condition in March 2012, and in particular, the cause of the nerve pain suffered in 2011 to 2012 or 2013. During concurrent oral evidence, it was agreed that the nerve pain has resolved. Having made the findings it has on that issue, the Tribunal finds that those doctors agreed that the cause of the applicant’s current pain in his shoulder and wrist was the accepted right shoulder injury.
The Tribunal accepts the applicant’s evidence about his shoulder and wrist pain and how he deals with it, as set out above. The applicant’s complaints of symptoms have been generally consistent. Dr Duckworth’s prognosis is consistent with the applicant’s ongoing difficulties. The applicant cannot carry out his current duties full-time. Those duties are not his pre-injury duties. The applicant has to take time off work to cope with the shoulder and wrist pain he suffers. The Tribunal finds that the applicant has an incapacity to engage in work at the same level at which he was engaged by the respondent in work immediately before the shoulder injury happened.[48]
[48] Section 4(9) of the SRC Act.
It follows from those findings, that the applicant is incapacitated for work as a result of the accepted right shoulder injury as of the date of this decision.
In relation to the applicant’s incapacity in March 2012, in the context of the Tribunal’s findings, Dr Maxwell’s opinion about the radicular pain set out at paragraph 117 above, supports a finding that the applicant was incapacitated as result of the accepted right shoulder injury in March 2012. The contemporaneous clinical notes and other medical evidence also support that finding.
The clinical notes of Dr Wong show that over the years, since the decision of 20 March 2012, the applicant has consulted him many times because of his accepted shoulder injury and he has had to take time off work because of that injury and was taking Nurofen over many years. In making that finding, the Tribunal has taken into account that some of the clinical notes refer to complaints of pain in the right shoulder and neck and left knee, and it is not possible to relate the need for Neurofen or time off work solely to the right shoulder injury. Although the applicant suggested somewhat faintly that the Tribunal make a finding about liability under sections 16 and 19 from 20 March 2012 until the present, on the evidence and argument before the Tribunal, it does not consider that is appropriate in this case.
On the evidence before the Tribunal, it finds that on 20 March 2012 and as of the date of its decision, the respondent was and is liable to pay the applicant compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988, sections 16 and section 19, in respect of the accepted right shoulder injury suffered on 15 October 2009.
Decision
The Tribunal sets aside the reviewable decision and substitutes for that decision, the decision that:
(a)As at 20 March 2012, the respondent was liable to pay the applicant compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988, sections 16 and section 19, in respect of the accepted right shoulder injury suffered on 15 October 2009.
(b)As at the date of this decision, the respondent is liable to pay the applicant compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988, sections 16 and section 19, in respect of the accepted right shoulder injury suffered on 15 October 2009. This decision has effect from the date of the Tribunal’s decision.
(c)The respondent is liable to pay the cost of CT Guided Right C7 Perineural Injection given by Dr Ives on 4 April 2012 pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988.
Given the Tribunal’s decision, it follows that it is appropriate that the Tribunal order the respondent pay the applicant’s costs of the proceedings.
However, the Tribunal will grant the parties liberty to apply within seven days if that order is opposed. If no application is made within that time, the Tribunal will make the order.
I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member, Dr Saw Hooi Toh, Member and Dr L. Bygrave Member .................................[sgd].......................................
Associate
Dated 31 October 2016
Date(s) of hearing 30, 31 May 2016 Date final submissions received 14 June 2016 Counsel for the Applicant D Murr SC, M Fraser Solicitors for the Applicant Clarke Legal Counsel for the Respondent M Snell Solicitors for the Respondent Maurice Blackburn Lawyers
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