Petrevski and Linfox Australia Pty Ltd (Compensation)

Petrevski and Linfox Australia Pty Ltd (Compensation) [2017] AATA 725 (24 May 2017)

Division:GENERAL DIVISION
File Number(s): 2015/5651 & 2016/3502
Re:Milco Petrevski
APPLICANT

Linfox Australia Pty LtdAnd
RESPONDENT

DECISION

Tribunal:Senior Member A Nikolic, AM CSC
Date:24 May 2017
Place:Melbourne

The Tribunal affirms both decisions under review.

........................................................................

Senior Member A. Nikolic AM CSC

COMPENSATION – biceps tendon and right shoulder injuries – entitlement to surgery – entitlement to ongoing compensation for medical treatment and incapacity benefits – whether aggravation of pre-existing condition - decisions under review affirmed

LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Transport Accident Act 1986 (Vic)

REASONS FOR DECISION

Senior Member A Nikolic, AM CSC

24 May 2017

INTRODUCTION

Mr Milco Petrevski is 51 years old and has been employed by Linfox Australia Pty Ltd (Linfox), as a forklift driver and storeman since September 2006. His two applications before the Tribunal relate to a workplace injury he claims to have suffered on 14 August 2015 to his right shoulder and biceps while pulling a piece of plastic off a pallet (the workplace injury).
Mr Petrevski has asked the Tribunal to review two Determinations made by Linfox regarding his entitlement to compensation and incapacity benefits under the Safety, Rehabilitation and Compensation Act 1988 (the Act):
(a)Application 2015/5651 relates to Linfox’s reconsidered Determination dated 16 October 2015, affirming the rejection of Mr Petrevski’s claim for the cost of surgery to repair his right shoulder and biceps tendon.
(b)Application 2016/3502 relates to Linfox’s reconsidered Determination dated 8 June 2016, that Mr Petrevski had no entitlement from 22 April 2016 to payment of compensation for medical treatment and incapacity benefits arising from his workplace injury.
For the reasons that follow, both decisions under review are affirmed.

APPLICANT’S CONTENTIONS

Since submitting his workers’ compensation claim on 18 August 2015, Mr Petrevski has consistently maintained that his right biceps tendon and the supraspinatus tendon in his right shoulder were torn in the same workplace injury on 14 August 2015. He contends that the Respondent should fund surgery to repair both and because his incapacity for work continues as a result of his accepted injuries, he should also be ‘paid weekly compensation and medical and like expenses.’
During opening submissions at the hearing, Ms Malpas of counsel conceded that Mr Petrevski’s right shoulder condition was pre-existing and did not originate from the workplace incident at Linfox. She contended, however, that Mr Petrevski had suffered previous aggravations to his right shoulder at work, including when he tore his biceps tendon on 14 August 2015. Ms Malpas submitted this could be categorised as an injury under section 5A of the Act, or in the alternative, as an aggravation of an ailment under section 5B. She said Mr Petrevski had not previously claimed for these aggravations because of the excellent in-house medical response at Linfox, encompassing ready access to a first aid officer, physiotherapist, and a company-retained general practitioner.
Mr Clarke, counsel for the respondent, objected to what he considered was a fundamental change in the basis of Mr Petrevski’s claim. He said Mr Petrevski had previously denied ever suffering a right shoulder symptom or injury, yet now claimed repetitive work-related aggravations of such an injury. Mr Clarke submitted that applicants were bound to run the case made out during the pre-hearing phase and the amended basis of Mr Petrevski’s claim required a new application.
In deciding how to proceed, I noted Mr Petrevski’s Statement of Facts and Contentions dated 15 September 2016, where he characterises the Respondent’s initial acceptance of liability for ‘aggravations of right shoulder and biceps tears’ as ‘appropriate.’ I also noted a reference in Mr Petrevski’s statement dated 27 March 2017, to a previous right shoulder injury he claims to have suffered at Linfox:
‘In 2008 I injured my right shoulder at work whilst I was replenishing stock...’
A number of medical reports lodged for the hearing by both the Applicant and Respondent, also contain references to Mr Petrevski’s claims of previous injuries and aggravations to his right shoulder while employed at Linfox. It is reasonable to infer from these documents, which were available to both parties during the pre-hearing phase, that Mr Petrevski may seek to establish other occasions, prior to his workplace injury on 14 August 2015, when he injured or aggravated his right shoulder. Although Mr Petrevski did not concede until opening submissions that these aggravations related to a pre-existing condition, the Tribunal nevertheless agreed to hear the evidence he proposed to tender in support of his claim.

RESPONDENT’S CONTENTIONS

Linfox contends that:
(a)It has appropriately accepted liability to pay compensation for the injury suffered by Mr Petrevski on 14 August 2015, for which the appropriate diagnosis is: ‘soft tissue injury of the right shoulder with complete rupture of the long head of the biceps at pre-existing degenerative site of its insertion into the glenoid labrum.’
(b)The aggravation of Mr Petrevski’s pre-existing right shoulder pathology was soft tissue in nature and resulted in incapacity for work, but any incapacity from that aggravation and his biceps tear had resolved by the time Linfox made its Determination dated 22 April 2016. Any residual incapacity or requirement for medical treatment after that time arises entirely from Mr Petrevski’s chronic, pre-existing and non-compensable right shoulder condition;
(c)The available evidence supports a conclusion that Mr Petrevski ‘does not reasonably require medical treatment in the form of right shoulder surgery, being a right shoulder arthroscopy, sub-acromial decompression, rotator cuff repair and biceps tenodesis, to treat his accepted right shoulder workplace aggravation injury;’ and
(d)Notwithstanding the representations made by Mr Petrevski in his compensation claim and in the medical history he communicated to a number of medical practitioners, he has ‘falsely represented’ the history of his right shoulder condition.

CIRCUMSTANCES OF THE INJURY AND MEDICAL EVIDENCE

Following his workplace injury, Mr Petrevski received assistance on the same day from a Linfox first aid officer, the on-site physiotherapist, and general practitioner Dr Roy Wilkinson. Dr Wilkinson’s provisional diagnosis was a ‘ruptured right biceps muscle,’ which was confirmed by Radiologist Dr Mandakina Siwach in a report dated 17 August 2015. Dr Siwach noted a ‘complete tear’ of Mr Petrevski’s right biceps tendon and damage to his right shoulder as follows:
‘There appears to be a full thickness tear in the anterior fibres of the supraspinatus tendon, which measures 2 x 1.9 cm in size.’
Dr Wilkinson issued a Certificate of Capacity dated 17 August 2015, categorising both the biceps and supraspinatus tendon tears as work-related injuries. In his claim dated 18 August 2015 Mr Petrevski attributes both tendon tears to his workplace injury, although at paragraph 24 he only refers to a sharp pain in his right bicep:
‘Cut the plastic off the pallet and as I was pulling the plastic caught on the pallet. Felt the sarpe (sic) pain in the right bicep.’
In signing his claim, Mr Petrevski declared his responses were true and accurate, acknowledging that ‘the making of a false or misleading statement…is punishable by law under the Criminal Code Act 1995...’ A number of questions from his claim and the responses he provided are as follows:

QUESTION RESPONSE

10. What injury or illness are you claiming workers’ for? Tear right biceps supraspinatus tendons

15. Have you undertaken any of the following treatments for the injury or illness you are submitting this claim for?

·     Physiotherapy

·     Chiropractor

·     Hospital treatment

·     Pharmaceuticals

·     Counselling

·     Other (please specify)

NIL

16. Have you ever had a similar symptom, injury or illness, work-related or otherwise? No

17. Have you ever received medical treatment for a similar injury or illness? No

18. Have you ever claimed workers compensation for a similar injury or illness? No

Linfox recorded the details of Mr Petrevski’s injury in an Incident Report dated 14 August 2015, referring exclusively to a right biceps injury as follows:
‘Team member cut plastic off the pallet and as he pulled the plastic off of the pallet he immediately felt a sharp pain in his right bicep.’
Dr Wilkinson referred Mr Petrevski for specialist review by Orthopaedic Surgeon Mr Christopher Pullen, who examined him on 19 August 2015. Mr Pullen’s report of the same day includes the following observations of relevance:
He tells me that at the time he was moving some product around the warehouse when he developed a sudden, sharp pain in his right shoulder and arm. He now has ongoing pain for which he has been taking Panadol. He is otherwise fit and well and has no past history of shoulder problems.(emphasis added)
…
His ultrasound shows a full thickness tear of his rotator and a complete tear and avulsion of his biceps tendon.
I have discussed the situation with Milco today. I have discussed non-operative and operative treatments, including the risks and benefits of both. I have discussed a right shoulder arthroscopy, sub-acromial decompression, rotator cuff repair and biceps tenodesis, if possible. I have told Milco that it may not be possible to perform biceps tenodesis and that this would depend on the severity of the injury. He has asked me to approach WorkCover for authority once he has his claim number…
On 20 August 2015 Mr Pullen wrote to Linfox on Mr Petrevski’s behalf, seeking their acceptance of financial responsibility for the shoulder / biceps surgery he proposed. On 7 September 2015 Linfox issued a Determination accepting liability for ‘aggravation of right shoulder biceps tears,’ pursuant to section 14 of the Act, but advised Mr Petrevski at paragraph 22 that further details would follow ‘pending receipt of the medical report from [consultant orthopaedic surgeon] Dr Khursandi, by whom you were examined on 2 September 2015.’
A report by Dr H.J. Khursandi dated 8 September 2015 states that MRI results confirmed Mr Petrevski’s biceps tendon was torn as a result of his workplace injury, but his torn supraspinatus tendon and rotator cuff damage were pre-existing and chronic. I note that medical specialists at the hearing confirmed that MRI scans are the executive investigation tool available in the radiological hierarchy.
Based on Dr Khursandi’s report, Linfox issued a Reconsideration of Determination dated 10 September 2015, amending the description of Mr Petrevski’s accepted condition to ‘soft tissue injury of the right shoulder with complete rupture of the long head of the biceps at pre-existing degenerative site of its insertion into the glenoid labrum.’
On 15 September 2015 Linfox issued a Determination rejecting Mr Petrevski’s compensation claim for the surgery proposed by Mr Pullen. On 24 September 2015 Mr Petrevski sought review of that decision, which was affirmed by a Linfox Reconsideration Officer on 16 October 2015.
On 26 October 2015 Mr Petrevski requested that the Tribunal review Linfox’s reconsidered Determination, which was accepted as Application 2015/5651.
During the period October 2015 to April 2016, Mr Petrevski participated in a number of medical reviews, key aspects of which were:
(a)Occupational Physician Dr Michael Bloom examined Mr Petrevski on 19 October 2015 and made the following observations of relevance in his report dated 21 October 2015:
‘Mr Petrevski said that on 14 August 2015, whilst working on replenishment, he was pulling off the plastic shrink wrap from a loaded pallet with his right hand and felt a sudden sharp pain in his right upper arm – and he clearly indicated the right biceps muscle.’

…
‘Mr Petrevski said that he developed pain in his right shoulder in or about 2008’…
‘In 2013 he was involved in an accident on his bicycle when hit by a car. He injured and bruised both shoulders and sustained severe bruising to his right hip and various abrasions… He said that he experienced some right sided neck pain and right shoulder discomfort following this. He was off work for a total of five months and received treatment and payments via the TAC.’
…
‘Mr Petrevski said that there is no other relevant previous medical history.’ (emphasis added)
…
‘MRI scan right shoulder dated 4/09/2015 was reported by Dr Koulouris, Radiologist, and concluded as follows:
1.Diffuse rotator cuff tendinopathy consistent with chronic tendinosis, including severe tendinosis of the subscapularis and supraspinatus tendons.
2.Full thickness tear anterior to mid fibres of supraspinatus demonstrates morphology in keeping with non-acute rupture.
3.Complete rupture of long head of biceps tendon for moderate to severe subacromial bursitis.’
…

‘Based upon the history, the clinical findings as well as the medical imaging reports, this man has sustained a complete rupture of the long head of biceps tendon, in the context of relatively advanced degenerative changes in the right rotator cuff.’
…
‘Mr Petrevski is of the opinion that his injury requires urgent surgical repair, and he is determined to go down that path, and has sought legal advice with that firmly in mind. He clearly is of the belief that the degenerative changes in his right rotator cuff that includes a degenerative tear of the supraspinatus tendon (chronic – not acute) is an injury rather than a chronic disease process, and he expressed a determination to undergo surgery to repair this.’
…
‘I would agree with Dr Khursandi…that “The recommended surgery for rotator cuff repair and subacromial decompression would be aimed to treat the pre-existing condition of the rotator cuff and supraspinatus tear which is not the result of the incident of 14 August 2015.”’
…
… ‘This injury occurred in the context of pre-existing relatively advanced degenerative changes in the rotator cuff, thereby predisposing him to this sort of injury. Those pre-existing degenerative changes in the rotator cuff are largely genetically and aged determined and, contrary to Mr Petrevski’s belief, have not been caused by his work.’
…
Dr Bloom was not called as a witness at the hearing, and was therefore not cross examined in relation to his report. The report was nevertheless accepted into evidence without objection.
(b)Orthopaedic Surgeon Mr Christopher Pullen gave evidence at the hearing and was cross-examined. He provided a number of reports that were taken into evidence as part of the T-documents. In addition to the evidence attributed to Mr Pullen earlier in these reasons, the following extracts are noted from his October 2015 and April 2016 reports:
(i)Report dated 30 October 2015:
…He described an onset of sharp sudden right shoulder pain when moving product around the warehouse on 14 August 2015. Prior to this, Mr Petrevski denied any history of injury to, or symptoms affecting, his right shoulder...Therefore, Mr Petrevski’s work injury on 14 August 2015 when he was employed by Linfox was a contributing factor to his right shoulder problems either causing or exacerbating his right shoulder biceps tendon tear and rotator cuff tear. (emphasis added)
(ii)Report dated 14 April 2016 : In this report, Mr Pullen re-states Mr Petrevski’s denial about any previous history of injury or symptoms affecting his right shoulder. Relying on that claim, he again concludes that Mr Petrevski’s workplace injury either caused or exacerbated ‘his right shoulder biceps tendon tear and rotator cuff tear.’
(c)Orthopaedic Surgeon Mr M.A. Khan provided two reports dated 4 February 2016 and 22 April 2016 as requested by Mr Petrevski’s counsel, which were taken into evidence. Mr Khan also gave evidence at the hearing and was cross-examined. Mr Khan makes the following observations of relevance in his reports:
(i)Report dated 4 February 2016 In compiling this report, Mr Khan relied on his examination of Mr Petrevski on 20 October 2015 and 12 November 2015, stating in part:
…
In his referring letter, Dr Sheriff advised that he had sustained a shoulder injury with ruptured biceps and supraspinatus tendon affecting the right shoulder.
…
Next he was referred to Mr Christopher Pullen, orthopaedic surgeon specialising in shoulders and upper limbs. Mr Pullen, after examining him…diagnosed that Mr Petrevski had sustained a rotator cuff tendon tear and biceps tear consistent with his injury at work.
…
He had an MRI scan done, arranged by Dr Khursandi at Melbourne Radiology Clinic on 4 September 2015. This was reported to show diffuse rotator cuff tendinopathy with chronic tendinosis, severe tendinosis of the subscapularis and supraspinatus and full thickness tear anterior to mid fibres of supraspinatus tendon in keeping with non-acute rupture and complete rupture of long head of biceps tendon and moderate to severe subacromial bursitis.
…
In the past he has had treatment for the right shoulder requiring an injection of steroid by the Radiologist, probably sometime in 2012 or thereabouts and had improved at the time following the injection. It was not a WorkCover claim as he had paid for the treatment himself then. This was before his work injury on 14 August 2015.
…
He was re-examined by me on 12 November 2015. He had brought with him an old ultrasound examination report of the right shoulder dated 8 October 2012 and x-rays which had both shown a full thickness tear of the supraspinatus tendon.
He mentioned that during the course of his work approximately in 2008 or 2009, he had reported developing pain in his right shoulder while lifting heavy objects. He had received treatment in the factory by the physiotherapist and had been treated with massage with cream and heat packs applied to the shoulder. He also received an injection of steroid with local anaesthetic arranged by Dr Chan Ngo. He had continued work, managing with pain in the right shoulder. He started to feel better at that time after some weeks following the treatment. He also had received acupuncture and massage to the shoulder then.
He had recalled another episode or incident before his reported injury to the right shoulder on 14 August 2015. This had occurred about two months earlier at work and he had required physiotherapy to the right shoulder and neck. He had been seen by Dr Wilkinson, Medical Officer for the factory, who had advised some restrictions at work then.
…
Plain x-rays of the right shoulder dated 21 October 2015 were essentially within normal limits, with irregular changes around the tuberosity and upper end of humerus, indicating underlying rotor cuff abnormality, as reported by the Radiologist.
He was described to have a full thickness tear of the supraspinatus in the ultrasound of the right shoulder on 21 October 2015…and long head of biceps rupture with retraction of the tendon.
…
From the history available to me, this man has presented with an injury to his right shoulder resulting in a chronic full thickness tear of the supraspinatus tendon and rotator cuff injury, with a complete tear of the long head biceps in the region of bicipital groove and associated subacromial bursitis of the right shoulder. This was consistent with the injury at work on 14 August 2015.
In the past on 18 March 2013, from the information available to hand, he had been involved in a transport accident as he had a fall off a bicycle on his way home from work. He had sustained severe bruises to his both upper arms and an injury to the neck requiring a cervical brace to be worn. However, apparently there were no fractures in his cervical spine and the condition had responded well to physiotherapy and management… He had been off work for five months and then was able to return to work returning to his duties, as mentioned above.
He had in the past on 8 October 2012 undergone x-rays and ultrasound of the right shoulder, arranged by Dr Chan Ngo. The details of these are enclosed with this report. The ultrasound had suggested a full thickness tear of the sub- supraspinatus fibres and thickening of the biceps long head tendon and subacromial bursa of the right shoulder.
(ii)In a supplementary medical report dated 22 April 2016, Mr Khan states that the opinion he provided in his 4 February 2016 report remains ‘essentially the same.’ The Tribunal notes Mr Khan did not re-examine Mr Petrevski in preparing this supplementary report, basing his opinion on the medical history provided by Mr Petrevski at their previous consultations and on the documentation detailed in his 4 February 2016 report. Mr Khan’s supplementary report was provided after he had reviewed Associate Professor Peter Steadman’s report dated 1 April 2016.
(d)Consultant Orthopaedic Surgeon, Associate Professor Peter Steadman, provided a report dated 1 April 2016 as requested by the Respondent’s counsel, which was taken into evidence. (Associate Professor Steadman examined Mr Petrevski on 23 March 2016, gave evidence at the hearing by phone, and was cross-examined. He makes the following observations of relevance:
He reports that his problems began in 2009. He said he was working at Linfox. He said that he was on replenishment and the drinks weighed about 15 kg. He thinks he had to put a pallet up high and recalls that he hurt his arm in this incident. He said that he started on some physiotherapy and then eventually recovered. He did not have a specialist review or any other treatment at the time.
Between 2009 and 2012 he said his shoulder improved with physiotherapy. He said he felt he was mostly pain-free.
In 2012 he had a new injury where he apparently reported this to the onsite manager. He said that he had physiotherapy through the Body Corp Group and had general practitioner treatment. He said that he reported to his team leader at the time and does not recall any other injuries or problems with the shoulder until he had his pushbike accident. He said following the pushbike accident he had physiotherapy and then Cortisone…He said it improved a lot with the Cortisone…He said he did not have any treatment on the shoulder, although the medical notes would suggest otherwise…
He then went by another two years but recalls another incident that was associated with lifting a 25 kg bag of sugar. He said that it took about three months before he did an incident report for this though.
In August 2015 he had a further injury when he was working. He was replenishing drinks and said that he was trying to move stock from one pallet to another and cut plastic down the outside. As he tried to pull this, he demonstrated to me that he had his arms by his side and the right arm was twisted out in external rotation, pulling towards the body. He felt a pop in his shoulder and reported it. He said he did an incident report and was given some ice and then saw the general practitioner. He was diagnosed with a torn tendon and then saw Mr Pullen, who wanted to do an operation repair. No other treatment has unfolded since.
He said he has had problems with the shoulder since 2009...
…
Before 2009 he reports no other complaints and since 2012 reports no other injuries to consider for apportionment. On file review, this does not appear to be the case. He told Dr Khursandi that he also had no prior problems although the records after the accident shows significant complaints of shoulder pain bilaterally along with neck pain...
…
Milco Petrevski has degeneration of the right shoulder. He has got a long history of complaint over six years associated with the combination of work injuries. During this period there has been progression of degeneration evident on all of his radiology. The ultrasound of August 2015 shows a torn biceps tendon with haematoma suggesting acuity.
The rotator cuff includes the supraspinatus, infraspinatus and teres minor tendons, subscapularis and the long head of biceps. The long head of biceps tendon, although a separate muscle comes from inside the shoulder joint and rupture is a common age related condition…Treatment can include biceps tenodesis, although it is unlikely to improve the functional or physical appearance….
…This should be considered separate to the ruptured biceps…The beginnings of the biceps complaint were noted in the 2012 ultrasound when thickening was present and this thickening largely represents atrophy and decreased blood supply leading to healing.
…The file really has all the significant history because it shows that in 2013 he had a pushbike accident where he injured both shoulders and was assessed and treated by many doctors including remaining off work. It would seem difficult to understand why he was not able to recall this period.
…
In my opinion it should be accepted that he has a progressive degenerative disorder of the right shoulder, although he has had some work-related aggravations. It is not likely between 2009 and 2012 that these aggravations have been anything other than progressive degeneration. The biceps tendon did appear to tear on 14.08.2015 and is potentially an assessable condition for permanent impairment but the ongoing functional problems with the right shoulder do not reflect the biceps tendon as opposed to reflect the rotator cuff pathology which in this case is not work-related.
…
Additional medical treatment for the shoulder could involve rotator cuff repair and tenodesis of the biceps tendon. The treatment of the rotator cuff would not be for a work-related condition while the treatment of the biceps tendon could be, although I would consider that given his recovery, apart from the cosmetic appearance, there would be little other reason to consider surgical repair.
Although I would consider surgery for the right shoulder an option, I do not consider all of the treatment would be for a work-related condition. I think that surgical tenodesis of the biceps tendon, given the long period of recovery, would certainly be “surgical overkill” at this stage.
The ruptured biceps is causally linked but should be seen as a progression of a degenerative condition as well, i.e. in a young fit person the biceps tendon would not rupture but an older person with progressive atrophy the biceps tendon can rupture in a heavy clinical scenario. Most texts for permanent impairment allocate a small degree of impairment to this injury.
The incapacity is partial but the Tribunal should separate out the issue of the rotator cuff pathology from the biceps tendon. In isolation, a ruptured biceps tendon causes little functional loss.
(e)Dr Khursandi was not called as a witness at the hearing, meaning he was not cross examined. His reports dated 8 September 2015 and 12 April 2016 were accepted into evidence without objection. The Tribunal notes Dr Khursandi did not re-examine Mr Petrevski in preparing his April 2016 report, relying on his 2 September 2015 consultation and with regard to the reports of Dr Bloom, Associate Professor Steadman, Mr Pullen and Mr Khan, along with copies of medical reports obtained under summons by the Respondent. Dr Khursandi makes the following observations of relevance in his reports:
(i)Report Dated 8 September 2015:
…
Mr Petrevski was knocked off a bicycle he was riding by a car and sustained bruising and abrasion of the right elbow, left shoulder and both hips. He denies having any right shoulder injury nor any symptoms and remained off work for approximately five months prior to returning to normal duties. (emphasis added)
Mr Petrevski mentioned that he has no pain at rest with his arm by his side. Lifting the right arm to shoulder level precipitates anterior pain of the right shoulder…
…

Following my clinical assessment, Mr Petrevski was referred to Melbourne Radiology Clinic where he underwent an MRI scan investigation of the right shoulder performed on 4 September 2015. The MRI scan as reported by Dr George Koulouris confirmed an acute rupture of the long head of the biceps tendon with chronic degeneration and tear of the superior labrum at the biceps anchor. The MRI scan also showed chronic tear of the supraspinatus tendon with degenerative changes in the infraspinatus tendon associated with rotor cuff tendinopathy and fluid in the subacromial bursa.
…
Consistent with the work-related incident of 14 August 2015 Mr Petrevski sustained a rupture of the long head of biceps at the pre-existing degenerative insertion in the glenoid labrum in the presence of chronic tear of the supraspinatus tendon with degenerative changes in the tendons of the rotator cuff.
…
His employment has significantly contributed to the rupture of the long head of the biceps tendon in the incident of 14 August 2015…Mr Petrevski’s MRI scan investigation does confirm pre-existing degenerative changes in the glenoid labrum (site of ruptured tendon) and chronic tear of the supraspinatus tendon.
…
With regards ongoing treatment I would recommend conservative measures to include restricted activities, pain relief in the form of paracetamol, gentle full range exercises of the right shoulder under the supervision of the physiotherapist to allow spontaneous healing over the next three months.
…
With the recommended conservative measures of gentle exercises to maintain the range of movement of the right shoulder supervised by a physiotherapist with judicious use of the right upper arm and shoulder, I anticipate resolution of Mr Petrevski’s symptoms in the right shoulder with improved function approximately four months from the date of his injury.
The recommended surgery of rotator cuff repair and subacromial decompression would be aimed to treat the pre-existing condition of the rotator cuff and supraspinatus tear which is not the result of the incident of 14 August 2015. Moreover any surgical treatment of the shoulder of a 50-year-old may involve protracted recovery and risk of complications such as adhesive capsulitis.
…
(ii)Supplementary Report dated 12 April 2016:
I acknowledge that the medical reports and clinical documents do confirm that Mr Petrevski has had progressive degeneration of the right shoulder for approximately eight years prior to the work-related incident of 14 August 2015 and has also received treatment in the past for the right shoulder.
The relevant past medical history prior to the work-related incident…confirms the presence of degeneration of Mr Petrevski’s right shoulder.
It is significant to note that the medical reports of Doctor Pullen, Doctor Bloom and Associate Professor Peter Steadman to acknowledge pre-existing degeneration of the right shoulder which is consistent with my opinion.

On 7 April 2016, Linfox wrote to Mr Petrevski foreshadowing an intention to issue a Determination regarding his continuing entitlement to compensation. In essence, Linfox proposed that Mr Petrevski no longer required medical treatment, nor was he incapacitated for employment as a consequence of his accepted right upper limb condition. Linfox contended that Mr Petrevski’s need for medical treatment and any incapacity for employment was attributable to his non-compensable right rotator cuff pathology. Mr Petrevski was invited to provide any further evidence to support his claim of a continuing entitlement to compensation under the Act.
Linfox wrote to Mr Petrevski on 22 April 2016 noting that no further evidence was received from him and that his claim for compensation for medical treatment expenses and incapacity benefits pursuant to sections 16 and 19 of the Act was denied. On 8 June 2016 Linfox affirmed this decision.
On 29 June 2016 Mr Petrevski requested that the Tribunal review Linfox’s reconsidered determination, which was accepted as Application Number 2016/3502.

Additional Medical Evidence Relating to Mr Petrevski’s Right Shoulder

During the hearing a number of additional medical reports and records, some obtained under summons, were tendered into evidence. These add important context to the history of Mr Petrevski’s right shoulder condition:
(a)An x-ray and ultrasound report requested by Dr C. Ngo, confirms that Mr Petrevski was experiencing pain in his right shoulder during 2008-2009. Dr Ngo states in his clinical note ordering these tests that Mr Petrevski had experienced ‘persistent pain’ since December 2008, querying possible bursitis or a rotator cuff injury. A report by Radiologist Dr F. Lau dated 17 April 2009 reports ‘mild degenerative changes of the right AC joint,’ with ‘no right sided rotator cuff tendon pathology….[or]…right subacromial bursitis seen.’
(b)Some three-and-a-half years later in October 2012, Dr Ngo again referred Mr Petrevski for an ultrasound and x-ray of his right shoulder, which was completed by Radiologist Dr Rick Fleming. The following results are noted in Dr Fleming’s report dated 8 October 2012:
The supraspinatus tendon shows signs of tendinosis and there is a full thickness tear involving the anterior inserting fibres measuring 19mm in AP diameter with 14mm retraction.
The long head of biceps tendon is thickened but normally positioned within the bicipital groove, and there is a sheath effusion.
The subacromial bursa is also considerably thickened and impinges on abduction.
The findings are consistent with chronic impingement with chronic subacromial bursitis and there is supraspinatus tendinosis with an anterior full thickness tear and bicipital tenosynovitis.
…There is a small subacromial spur. There is obvious cortical irregularity to the superior aspect of the greater tuberosity of the humerus in keeping with long-standing impingement. Mild to moderate degenerative change in the AC joint seen.
(c)A medical report dated 16 October 2012, details Dr Fleming’s administration of an injection under ultrasound guidance into Mr Petrevski’s right shoulder, to relieve his increasingly painful right shoulder symptomology.
(d)A medical record dated 24 October 2012 and titled Western Health – Outpatient Department Referral Form, details Dr Ngo’s referral of Mr Petrevski for another review of his persistent right shoulder problems, stating in part:
Thank you for seeing Milco…with ongoing R shoulder pain since the last 3-4 years for further assessment and management.
The recent x-ray and ultrasound revealed chronic impingement with chronic subacromial bursitis, supraspinatus tendinosis with anterior full thickness tear and bicipital tenosynovitis.
(e)A medical record dated 9 November 2012, titled Request for Elective Admission, details Mr Petrevski’s agreement to be scheduled for elective surgery at Western Health, for an Arthroscopic Rotator Cuff Repair of his right shoulder.
(f)A medical record dated 19 July 2013, titled Authority for Removal From Elective Surgery Waiting List, reflects Mr Petrevski’s decision to decline elective surgery to his right shoulder, with the following reason noted: ‘physio has helped and will continue to go to physio for pain management.’ At the hearing Mr Petrevski stated that he chose not to proceed with surgery after discussions with family and friends, preferring a cortisone injection and more conservative modalities such as physiotherapy.
(g)Medical records from general practitioner, Dr A.A. Sheriff, contain numerous references to Mr Petrevski’s right shoulder symptomology. In a medical certificate dated 20 March 2013, for example, Dr Sheriff advised that Mr Petrevski had suffered multiple injuries in a collision with a car while riding his bike, including injuries to both shoulders. The costs associated with physiotherapy and other treatment for these injuries was funded by the Transport Accident Commission (TAC), which accepted Mr Petrevski’s claim from the bicycle accident on 2 April 2013.
(h)Mr Petrevski’s claim for compensation under the Transport Accident Act 1986 dated 20 March 2013, and a range of associated documents, were accepted into evidence as part of the T-documents. In signing this claim, Mr Petrevski declared his responses to be true and correct, acknowledging it was an offence ‘to provide the TAC with false or misleading information...’ A number of questions and responses from the TAC claim form are reproduced below:

QUESTION	RESPONSE
5. Date of accident. Please describe in your own words how the accident happened.	14 March 2013. I was riding my bicycle and was hit by a car turning right.
17. Please list all your injuries from the transport accident.	Hip pain (Left), Hip pain (Right), Shoulder pain (Right), Shoulder pain (Left), Knee pain (Left), Knee pain (Right).
22. Before the accident have you ever required treatment: · By a chiropractor or physiotherapist? · By a psychologist or psychiatrist? · Involving hospitalisation in the last five years? · Causing more than four weeks off work for a medical condition?	No No No No
25. 23. Before the accident had you ever suffered from any of the following conditions or problems? 26. … 27. Shoulder condition or pain 28. …	No

(i)A letter from general practitioner Dr Steven Jensen to Dr A. A. Sheriff dated 29 May 2013, states:
As you know he was a cyclist knocked off his bike on 14 March 2013 and this has left him with significant pain predominantly through his neck and right, much more so than left, shoulder girdle…
(j)A TAC Worksite Assessment Report dated 5 June 2013, states:
‘Mr Petrevski advised his current symptoms and neck pain and shoulder pain with numbness extending down his right and left arms…Mr Petrevski advised at the worksite assessment his neck/shoulder pain was six or 7/10…’
(k)In a letter to Dr Sheriff from Rehab Care dated 25 November 2013, Sandy Aggarwal states that he had been treating Mr Petrevski for ‘ongoing neck and right shoulder pain.’
(l)Dr Sheriff’s medical reports dated 7 October 2015, 26 April 2016, and 21 March 2017 were accepted into evidence. Dr Sheriff also gave evidence at the hearing and was cross-examined. Dr Sheriff maintained his view in all three reports and in his oral evidence that Mr Petrevski’s right rotator cuff tear and biceps tear resulted from his workplace injury. He did concede that Mr Petrevski ‘probably did have some amount of degenerative disease in his supraspinatus tendon’ and confirmed he was aware of the 8 October 2012 diagnosis of the previously-torn supraspinatus tendon almost three years earlier. Dr Sheriff submitted that it was unlikely Mr Petrevski’s biceps tendon could now be repaired and may cause him impairment in the future.

STATUTORY FRAMEWORK

The relevant statutory provisions in this case are as follows:
(a)Section 14(1) of the Act provides that subject to the balance of Part II, Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment:
(b)Section 4 of the Act defines an ailment to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development’). Relevantly, the interpretative provision at Section 4(1) provides that the words ‘injury’ and ‘disease’ have the meaning detailed in sections 5A and 5B respectively of the Act as follows:
5ADefinition of injury
(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…
5B       Definition of disease
(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.
(c)Section 6 of the Act is a facultative provision, indicating in a non-exhaustive fashion when an injury can be considered to have arisen out of or in the course of employment.
(d)Section 16 of the Act provides for the payment of reasonable medical treatment of an employee and expenditure reasonably incurred in obtaining that medical treatment, with section 16(1) stating:
16 Compensation in respect of medical expenses etc.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(e)Section 19 of the Act deals with payment of compensation for injuries resulting in a reduced or total ability incapacity to work:
19Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula: ...
…
(f)Section 64 of the Act provides for applications to the Tribunal for review of a ‘reviewable decision’ made by the relevant Commonwealth authority.

ISSUES FOR THE TRIBUNAL

The parties accept that Mr Petrevski tore his biceps tendon and aggravated his right shoulder as a result of his workplace injury. The dispute relates predominantly to the degree of aggravation and his entitlement to compensation under the Act. Issues arising from Mr Petrevski’s applications are:

Application for Review 2015/5651

(a)Does Mr Petrevski require medical treatment in the form of surgery consisting of right shoulder arthroscopy, sub-acromial decompression, rotator cuff repair and biceps tenodesis procedure?
(b)If yes, is the proposed surgery reasonably required to treat Mr Petrevski’s accepted right shoulder condition of ‘soft tissue injury of the right shoulder with complete rupture of the long head of the biceps at pre-existing degenerative site of its insertion into the glenoid labrum,’ such as to give rise to an entitlement to payment of compensation under section 16 of the Act?

Application for Review 2016/3502

(a)As at 22 April 2016 and thereafter, did Mr Petrevski continue to suffer from symptoms associated with his accepted right shoulder condition, and if so, does he require further reasonable medical treatment for those symptoms under section 16 of the Act?
(b)As at 22 April 2016 and thereafter, was Mr Petrevski incapacitated for work, and if so, does he suffer that incapacity, whether total or partial, as a consequence of his accepted right shoulder condition, such as to give rise to an entitlement to compensation in the form of incapacity benefits under section 19 of the Act??

TRIBUNAL’S DELIBERATIONS

The origins of Mr Petrevski’s right shoulder symptomology

It is difficult to understand Mr Petrevski’s failure to disclose key aspects of his extensive right shoulder history during consultations with Dr Wilkinson on 14 August 2015, with Mr Pullen on 19 August 2015, with Dr Khursandi on 2 September 2015, with Dr Bloom on 19 October 2015, with Mr Khan on 20 October 2015, and with Associate Professor Steadman on 23 March 2016. Associate Professor Steadman, who had access to a more complete medical history of Mr Petrevski’s right shoulder problems than the other doctors, highlights these inconsistencies in his report dated 1 April 2016:
Before 2009 he reports no other complaints and since 2012 reports no other injuries to consider for apportionment. On file review, this does not appear to be the case...There is certainly substantial history to consider here that he does not appear to be able to recall either to me or other more recently examining orthopaedic surgeons.
As the following comparison of radiological results confirms, the tear to Mr Petrevski’s supraspinatus tendon and degenerative processes affecting his right shoulder were diagnosed almost three years before his workplace injury at Linfox:

ULTRASOUND & X-RAY: RIGHT SHOULDER

(8 October 2012)

ULTRASOUND:

RIGHT SHOULDER

(14 August 2015)

MRI:

RIGHT SHOULDER

(4 September 2015)

The supraspinatus tendon shows signs of tendinosis and there is a full thickness tear involving the anterior inserting fibres measuring 19mm in AP diameter with 14mm retraction.

The subscapularis and infraspinatus tendons are normal.

The subacromial bursa is also considerably thickened and impinges on abduction.

The findings are consistent with chronic impingement with chronic subacromial bursitis and there is supraspinatus tendinosis with an anterior full thickness tear and bicipital tenosynovitis.

There is a small subacromial spur. There is obvious cortical irregularity to the superior aspect of the greater tuberosity of the humerus in keeping with long-standing impingement. Mild to moderate degenerative change in the AC joint seen.

There is an associated full thickness tear of the anterior most fibres of the supraspinatus tendon…which measures 2 x 1.9cm in size.

The subscapularis, infraspinatus, and teres minor tendons are normal.

There is a large amount of fluid in the subacromial / subdeltoid bursa.

Bursal bunching is noted on abduction.

Diffuse rotator cuff tendinopathy consistent with chronic tendinosis of the subscapularis and supraspinatus tendons.

Supraspinatus demonstrates a full thickness tear of the anterior to mid fibres measuring 19 (ML) x 18 (AP) x 4 (SI) mm on the background of severe tendinopathy… demonstrates a morphology in keeping with non-acute rupture.

Complete rupture of long head of biceps tendon.

Moderate to severe subacromial bursitis.

These comparative findings confirm that the tear to Mr Petrevski’s supraspinatus tendon was in the same place (anterior fibres) and with the same degree of retraction (19mm). Expert medical evidence given during the hearing confirmed that a full thickness tear and retraction of a supraspinatus tendon cannot re-join without surgical intervention. Associate Professor Steadman noted in his oral evidence the presence of blood (haematoma) at the site of Mr Petrevski’s torn right biceps tendon in the September 2015 MRI, which indicated a sudden, acute injury. He said the absence of blood in the rotator cuff supported the conclusion that this was a chronic, long-term degenerative process, rather than an acute injury. Associate Professor Steadman said this chronic process was clearly evident since 2012, as seen from the radiological findings, the Cortisone injection administered by Dr Fleming, and Mr Petrevski’s placement on the Western Health elective surgery list in 2012 for an arthroscopic rotator cuff repair.
Under cross-examination Mr Petrevski agreed he had suffered persistent pain in his right shoulder since December 2008, was aware of the torn rotator cuff diagnosis in October 2012, and knew this to be a chronic injury. He recalled receiving an injection into his right shoulder from Dr Fleming and being placed on the elective surgery list at Western Health. When asked during the hearing to explain why he didn’t disclose these relevant matters, Mr Petrevski variously stated he was ‘upset…in shock…in pain…didn’t remember…forgot,’ was focussed exclusively on his biceps injury, or had decided to ‘move on with [his] life.’ When asked to explain his incorrect response to Question 23 on the 2013 TAC claim about whether he had previously suffered from a shoulder condition or shoulder pain, Mr Petrevski stated:
‘I didn’t know what I ticked back then, I was full of bruises, I was in such pain… and that day when I claimed that form I didn’t know what I was thinking or what I was doing, how can I remember – I was in shock.’
Mr Petrevski did not explain why he chose to complete his compensation claims while experiencing high levels of pain and distress, or why his lack of recall persisted for so long after submitting them. As Dr Bloom’s evidence shows, Mr Petrevski not only failed to recall his right shoulder symptomology, but insisted it resulted from an acute, work-related injury at Linfox on 14 August 2015, and he had ‘sought legal advice with that firmly in mind.’
There was a further inconsistency in Mr Petrevski’s oral evidence when he contended that the reason his supraspinatus tendon tear was listed as a workplace injury, was because a manager at Linfox had filled in the workers compensation form on his behalf. He stated:
‘The manager was filling in, I was just answering like I am doing now.’
In response to my questions about whose writing and signature was on the form, Mr Petrevski conceded the signature and writing were his.
The reasons offered by Mr Petrevski for his repeated failure to disclose his extensive right shoulder symptomology do not adequately explain his subsequent failure to correct the record, or why he continued to insist his shoulder condition arose from the workplace incident at Linfox. This reflects adversely on his credibility as a witness.
Based on the medical records of Dr Ngo and Dr Sheriff, the radiological results since 2009, Mr Petrevski’s elective surgery records from Western Health in 2012, and the medical records following his 2013 bicycle accident, I find that Mr Petrevski had a history of deteriorating right shoulder symptomology for at least six years prior to his workplace injury at Linfox on 14 August 2015. It is clear from the available evidence that Dr Wilkinson and Mr Pullen, who treated Mr Petrevski in the immediate aftermath of his workplace injury, were unaware of that history. As Mr Pullen’s report dated 19 August 2015 shows, this lack of awareness directly results from Mr Petrevski’s denial of any ‘past history of shoulder problems.’

It can only be concluded that Mr Petrevski’s claim for a torn supraspinatus tendon at question 10 of his workers’ compensation form, and his responses to questions 15, 16, 17 and 18 were not accurate. Similarly, Mr Petrevski’s responses to questions 22 and 23 of his TAC claim in 2013, relating to whether he had previously suffered a ‘shoulder condition or pain,’ or received treatment for a shoulder condition prior to that accident, were also not accurate.
As a result of Mr Petrevski’s failure to disclose or fully disclose his extensive right shoulder symptomology, a number of treating specialists reached unreliable conclusions about the origins of his right shoulder condition. I therefore find that Mr Petrevski’s evidence must be treated with caution and so must any of the expert medical evidence, which is found to be based on an incomplete or inaccurate record of Mr Petrevski’s right shoulder condition.

Expert Medical Evidence

In relation to contested medical opinion, the Tribunal prefers the evidence of specialists to that of general practitioners. Key aspects of the Tribunal’s consideration of specialist evidence follows.

Mr Pullen

For the reasons adduced earlier, Mr Pullen’s repeated attribution of Mr Petrevski’s rotator cuff damage to his workplace injury at Linfox was not correct. During cross-examination, Mr Pullen was taken through a number of documents and records relating to Mr Petrevski’s right shoulder, including the 2009 and 2012 radiology results, the 2012 elective surgery records, his 2013 TAC claim, and the MRI findings of 4 September 2015. When presented with this more complete medical history, Mr Pullen agreed that Mr Petrevski’s torn supraspinatus tendon and rotator cuff damage was a pre-existing, chronic condition.

Dr Khursandi

Considerable weight is placed on Dr Khursandi’s reports, which had the advantage of relatively early access to MRI findings. I note in particular Dr Khursandi’s view that with conservative management, supervised by a physiotherapist, resolution of the symptoms arising from Mr Petrevski’s accepted injury would take approximately four months. Based on that opinion, the symptoms experienced by Mr Petrevski from his accepted injury would have resolved by the Respondent’s April 2016 Determination, which was eight months after Mr Petrevski’s workplace injury.

Dr Bloom

Considerable weight is also placed on Dr Bloom’s October 2015 report, given he had access to Dr Khursandi’s findings, the MRI results, and undertook a worksite visit and assessment. I note Dr Bloom’s conclusion that the chronic, degenerative process in Mr Petrevski’s right shoulder would likely have predisposed him to the biceps tear he suffered at work, which is supported by Dr Khursandi and Associate Professor Steadman.

Mr Khan

Little weight is placed on Mr Khan’s evidence, given that he was misinformed about the origins of Mr Petrevski’s shoulder damage by the referral letter from Dr Sheriff, and Mr Pullen’s incorrect attribution of that damage to the workplace injury on 14 August 2015. Mr Khan states in his report that the tear to Mr Petrevski’s supraspinatus tendon and rotor cuff injury ‘was consistent with the injury at work on 14 August 2015,’ despite acknowledging in the same report that a 2012 ultrasound showed the same damage three years earlier. Moreover, the reference in Mr Khan’s report to Mr Petrevski tearing his biceps tendon in 2012 was confirmed at the hearing to be erroneous.
The discrepancies and irregularities noted in Mr Khan’s report for this case raise some concerns in weighing and considering its value and the findings and recommendations contained within. At the hearing, attempts were made to reconcile areas of concern with Mr Khan, who was not able to clearly respond to a number of these points, and was at times vague and circumspect. This was particularly the case when he was asked to clarify his precise views and conclusions relating to the cause of and interaction between Mr Petrevski’s biceps and shoulder injuries. I was not ultimately satisfied that Mr Khan’s answers resolve these concerns, and am therefore unable to confidently rely on his analysis and conclusions in this matter.

Associate Professor Steadman

Considerable weight is placed on Associate Professor Steadman’s opinion, which has the benefit of a more complete medical history of Mr Petrevski’s right shoulder problems than was available to the other doctors. I accept Associate Professor Steadman’s conclusion of significant and progressive degeneration of Mr Petrevski’s right shoulder consistent with rotator cuff pathology, which should be considered separate to his ruptured biceps. Associate Professor Steadman referred to ‘small work-related aggravations’ of Mr Petrevski’s shoulder, which he said in his oral evidence, was documented entirely on the basis of Mr Petrevski’s assertions. Associate Professor Steadman agrees that Mr Petrevski’s biceps tendon did tear on 14 August 2015 and the tear may be an assessable condition for permanent impairment, but the ongoing functional problems with his right shoulder are overwhelmingly related to his rotator cuff pathology, which is not work-related. Associate Professor Steadman was of the opinion that given Mr Petrevski’s detailed description of his workplace injury during their consultation, it was ‘impossible’ to damage his rotator cuff through the described action, as rotor cuff injuries occur as a result of overhead movement.

Mr Petrevski’s claims about other right shoulder injuries and aggravations at Linfox

Mr Petrevski says in his statement dated 27 March 2017 that ‘in 2008’ he previously injured his right shoulder at Linfox while undertaking repetitive lifting of items of approximately 25 kg. He states that he was treated by the Linfox physiotherapist and continued working.
Mr Khan’s statement dated 4 February 2016 refers to Mr Petrevski’s claims about developing right shoulder pain while employed at Linfox in ‘approximately 2008 or 2009’ as a result of ‘lifting heavy objects.’ Mr Khan notes Mr Petrevski’s recollection that these injuries required treatment by the Linfox physiotherapist and massage with a cream and heat packs. Mr Khan further notes Mr Petrevski’s recollection about acupuncture and massage outside of the workplace, and ‘an injection of steroid with local anaesthetic arranged by Dr. Chan Ngo.’ This reference to a steroid injection to treat a workplace injury originating in 2008 or 2009 is inconsistent with the available medical evidence, which records only one injection into Mr Petrevski’s right shoulder by Radiologist Dr R. Fleming on 16 October 2012. Mr Khan’s report refers to a further right shoulder injury Mr Petrevski said he sustained at work two months prior to the injury on 14 August 2015.
There are further references in Dr Bloom’s report dated 21 October 2015 and in Professor Steadman’s report dated 1 April 2016, regarding Mr Petrevski’s contention that he hurt his right shoulder in 2008 or 2009 while employed at Linfox. Dr Bloom recorded Mr Petrevski’s comment that this earlier injury was treated with physiotherapy over a period of several months as well as an injection under ultrasound guidance, and that since then, Mr Petrevski has experienced occasional intermittent pain in his right shoulder, for which he has sought massage and physiotherapy. Again, the reference to a shoulder injection resulting from a 2008 or 2009 injury at Linfox is chronologically inconsistent with the available evidence.
There is a reference in Associate Professor Steadman’s report to a 2009 injury Mr Petrevski said had occurred at Linfox while he was lifting drinks weighing ‘about 15 kg.’ Associate Professor Steadman notes that Mr Petrevski ‘did not have a specialist review or any other treatment at the time.’ Two further references are contained in this report based on Mr Petrevski’s claim that he suffered a right shoulder injury in 2012 and again in 2014 while lifting a ‘25kg bag of sugar.’ Associate Professor Steadman writes that in relation to the 2014 injury, Mr Petrevski claims to have submitted an incident report three months after this injury. No such incident report was submitted during the pre-hearing phase or during the hearing of this matter.
In his oral evidence, Mr Petrevski claimed he had previously injured his right shoulder at Linfox ‘in 2008 or 2009 if my memory is good.’ He said he completed an Incident Report at the time and undertook five to six months of treatment during working hours under the supervision of Linfox’s physiotherapist. In response to my question about whether any evidence would be tendered to support these claims, counsel for the Applicant replied:
‘No we’re just relying on the Applicant’s evidence in relation to that.’
I do not doubt that manual labour of the sort undertaken by Mr Petrevski at Linfox can be physically demanding, but the available evidence does not sustain a finding that Mr Petrevski injured his right shoulder on other occasions at Linfox, or that he suffered repetitive aggravations of a pre-existing condition that were significantly contributed to by his employment.
The expert medical evidence shows that in addition to tearing his right biceps tendon at work on 14 August 2015, Mr Petrevski concurrently aggravated his right shoulder within the meaning of section 5A(1)(c) of the Act, and for which his employer accepted liability. I accept the evidence of Dr Khursandi, Dr Bloom and Associate Professor Steadman, that this aggravation was soft tissue in nature. Moreover, this aggravation did not cause the underlying chronic and degenerative damage in Mr Petrevski’s right shoulder, which had been diagnosed in 2012. I therefore find that the definition of Mr Petrevski’s accepted injury as ‘soft tissue injury of the right shoulder with complete rupture of the long head of the biceps at pre-existing degenerative site of its insertion into the glenoid labrum’ is consistent with the available evidence. I am also not persuaded, on the balance of probabilities, that Mr Petrevski suffered numerous aggravations from his work at Linfox of a pre-existing condition within the meaning of section 5B of the Act.
Based on the expert medical evidence, particularly that of Dr Khursandi, I also find on the balance of probabilities that any incapacity arising from Mr Petrevski’s accepted injury would have resolved by 22 April 2016. That is more than eight months after the date of his injury and double the time Dr Khursandi concluded it would take for the symptoms from Mr Petrevski’s accepted injury to resolve.

The Necessity of Biceps Tenodesis

The issue of whether biceps tenodesis was reasonably required to treat Mr Petrevski’s workplace injury was the subject of considerable discussion at the hearing. Expert medical opinion was tendered in support of both operative and conservative approaches.
Mr Pullen was the first specialist to review Mr Petrevski after his workplace injury, noting in a letter dated 19 August 2015 that he had ‘discussed operative and non-operative treatments, including the risks and benefits of both.’ Mr Pullen refers in that letter to the ‘urgent nature’ of the proposed surgery, but qualifies his assessment regarding biceps tenodesis as proceeding only ‘if possible’:
‘I have told Milco that it may not be possible to perform biceps tenodesis and that this would depend on the severity of the injury.’
Mr Pullen makes the same qualification in his letter to Linfox seeking financial approval to proceed with a right shoulder repair encompassing an arthroscopy, sub-acromial decompression, and rotator cuff repair, but to only undertake biceps tenodesis ‘if possible.’
During the hearing Mr Petrevski said he had been told by Mr Pullen that the prospects of finding the torn end of his biceps tendon and re-attaching it was no better than a ‘50 – 50’ proposition. In his oral evidence to the Tribunal, Mr Pullen stated that the prospects of a successful biceps tenodesis could only be determined during surgery.
In his report dated 8 September 2015, Dr Khursandi states that the MRI finding of pre-existing degeneration of Mr Petrevski’s rotator cuff and to the glenoid labrum on which the biceps tendon is attached, may have contributed to the rupture of his biceps tendon. In light of those chronic, degenerative processes, he recommends conservative treatment for the biceps tendon injury, stating:
Generally the soft tissue contusion associated with the rupture of long head of the biceps resolves with the passage of time and conservative measures – and moreover tenodesis of the biceps tendon would not improve significantly the long-term overall function of the biceps muscle particularly at the age of 51.
Dr Bloom’s report dated 21 October 2015 also recommends conservative treatment of Mr Petrevski’s torn right biceps tendon and his torn rotor cuff, stating:
‘It is now generally accepted that in the case of ruptured biceps tendon, the appropriate treatment for middle-aged or older patients should be conservative and comprises initially of rest followed closely by range of movement and strengthening exercises for the shoulder and elbow. Surgical repair of a ruptured biceps tendon is usually considered only in young or athletic patients.
In the case of Mr Petrevski who has reasonable function of his right upper limb, is 50 years of age, and has evidence of moderately advanced degenerative changes in the right shoulder/rotator cuff, conservative treatment would almost certainly be the most appropriate, with surgical intervention bringing with it the relatively high chances of complication, and also a reasonably high chance of failure to achieve full function of the shoulder anyway despite such surgery.’
Associate Professor Peter Steadman states in his report dated 1 April 2016:
‘Additional medical treatment for the shoulder could involve rotator cuff repair and tenodesis of the biceps tendon…although I would consider that given his recovery, apart from the cosmetic appearance, there would be little other reason to consider surgical repair…I think that surgical tenodesis of the biceps tendon, given the long period of recovery, would certainly be “surgical overkill” at this stage.
The ruptured biceps is causally linked but should be seen as a progression of a degenerative condition as well, i.e. in a young fit person the biceps tendon would not rupture but an older person with progressive atrophy the biceps tendon can rupture in a heavy clinical scenario. Most texts for permanent impairment allocate a small degree of impairment to this injury.’
At the hearing, Associate Professor Steadman re-stated his view that the tearing of Mr Petrevski’s biceps tendon was likely linked to the chronic degenerative process in his shoulder, evident from the tendon’s thickening in the 2012 radiological results. This view was supported by Dr Khursandi, who noted that the biceps tore at its originating attachment on the glenoid labrum, which was found to have signs of chronic degeneration in the MRI on 4 September 2015. Associate Professor Steadman also submitted that in over 90% of cases there is little functional loss from a torn biceps tendon, and that ‘people get better and report no problems.’ He said that a small number of patients do report cramping after repetitious use – particularly in relation to repetitious elbow flexion, but in Mr Petrevski’s case, the main problem was not his biceps, but his rotator cuff. Associate Professor Steadman stated that surgery on Mr Petrevski’s upper right arm would still be predominantly focussed on repairing the primary contributor to his pain and restricted movement - his rotator cuff - although he would concurrently explore the potential of biceps tenodesis, which in his view was a matter of convention, rather than a surgically-necessary discrete procedure.
In response to cross-examination from Ms Malpas of counsel regarding the weak grip results reported by Mr Khan and whether this could be attributed to loss of function from Mr Petrevski’s biceps tear, Associate Professor Steadman said it did not, because the biceps had nothing to do with grip strength in the hands. Associate Professor Steadman said grip strength results were highly subjective and often skewed by a patient’s willingness to fully participate. He also disagreed with Mr Khan’s view that a biceps tear significantly impedes a patient’s functional ability. To demonstrate the relative impairment effect of a torn biceps versus a torn rotator cuff, Associate Professor Steadman stated that depending on the compensation jurisdiction, a biceps tendon tear with resulting ‘Popeye Muscle,’ like the injury suffered by Mr Petrevski, could result in an assessment of 2% upper limb impairment. A rotator cuff tear, on the other hand, could be assessed as high as 12% upper limb impairment.
In relation to Mr Pullen’s belief that the optimal time for a biceps tenodesis was soon after an injury, Associate Professor Steadman disagreed. He said that in the context of addressing the multiple pathologies in Mr Petrevski’s upper right arm, he might still consider a biceps tenodesis, although Mr Petrevski’s age and the progressive degeneration of his shoulder over many years made that surgery more difficult because of the loss of collagen in muscles and tendons. Although Associate Professor Steadman said biceps tenodesis remained ‘possible’ even today, he only recommended exploring that possibility if the shoulder surgery went ahead, because ‘the biceps tendon is not [Mr Petrevski’s] problem, the problem is the rotator cuff.’
At the hearing Mr Pullen disagreed with the view that Mr Petrevski’s biceps tear should be treated conservatively. He said biceps surgery soon after the injury would likely have assisted Mr Petrevski as a ‘50 year old manual worker with a dominant right arm,’ but that with the passage of time, it was now unlikely that the biceps tendon was repairable. He stated this may lead to future loss of elbow strength and potential issues relating to Mr Petrevski’s forearm rotation. However, Mr Pullen said that Mr Petrevski would still obtain the optimum outcome from surgical repair of his right shoulder, because the natural history of rotator cuff tears has indicated worsening muscle wasting and joint atrophy if treated non-operatively. Mr Petrevski would therefore have a significant improvement in his long-term outcome with the proposed shoulder arthroscopy and rotator cuff repair.
The available evidence supports a finding that any incapacity Mr Petrevski is experiencing after 22 April 2016, results from his chronic right shoulder symptomology rather than his torn biceps tendon. In relation to the necessity of biceps tenodesis, I find that this was only ever regarded as a ‘possible’ procedure at best. In contrast, the more extensive surgery proposed to repair Mr Petrevski’s right shoulder was a definitive recommendation, supported by all of the orthopaedic specialists. In relation to whether conservative or operative management of Mr Petrevski’s biceps tendon is the most reasonable treatment, I prefer the advice of Dr Khursandi, Dr Bloom and Associate Professor Steadman over that of Mr Pullen and Mr Khan. Dr Khursandi examined Mr Petrevski within three weeks of his injury and had the benefit of MRI imaging. Associate Professor Steadman had the benefit of a much more complete medical history of Mr Petrevski’s right shoulder than the other doctors. I therefore accept the views of Associate Professor Steadman, Dr Khursandi and Dr Bloom, that in light of his specific circumstances, Mr Petrevski’s biceps tear is best treated conservatively. The Tribunal also accepts Associate Professor Steadman’s view that biceps tenodesis is not warranted as a discrete procedure, and should only be explored as an option if surgical repair of Mr Petrevski’s non-compensable right shoulder condition proceeds. To quote Associate Professor Steadman, proceeding with biceps tenodesis alone would be ‘surgical overkill.’

Importantly, I note that in submitting his workers’ compensation claim at Linfox, Mr Petrevski was not seeking his employer’s acceptance of financial responsibility just for a ‘possible’ biceps tenodesis, but for the comprehensive surgery recommended to repair his chronic and pre-existing shoulder condition. His employer appropriately accepted liability for the biceps tear and soft-tissue aggravation of his pre-existing right shoulder condition, but is not responsible for the underlying and chronic damage to his right shoulder, which had been diagnosed in 2012. As Mr Petrevski’s concession at the hearing about the pre-existing nature of this condition demonstrates, that aspect of his claim was without merit. His ‘reframing’ of the issue during opening submissions at this hearing, that his pre-existing right shoulder condition was repeatedly and significantly aggravated by his employment at Linfox, is not supported by the available evidence.
If Mr Petrevski unfortunately finds himself to be one of the small number of patients highlighted by Associate Professor Steadman who experience longer-term problems with a torn biceps tendon, this aspect of his workplace injury may become assessable under the Act.

CONCLUSION

I find that Mr Petrevski:
(a)suffered a workplace injury to his right biceps tendon on 14 August 2015 within the meaning of section 5A(1)(b) of the Act, and concurrently suffered a soft tissue aggravation of his pre-existing right shoulder condition within the meaning of section 5A(1)(c) of the Act, which is appropriately defined as: ‘soft tissue injury of the right shoulder with complete rupture of the long head of the biceps at pre-existing degenerative site of its insertion into the glenoid labrum’;
(b)was incapacitated for pre-injury duties as a result his accepted injury, but that any entitling circumstances arising from that accepted injury had resolved by 22 April 2016;
(c)continues to suffer residual incapacity and requires medical treatment beyond 22 April 2016 as a consequence of his pre-existing and non-compensable right shoulder condition;
(d)did not tear his supraspinatus tendon as a result of his workplace injury on 14 August 2015 as stated in his workers’ compensation claim, with the evidence confirming his torn supraspinatus tendon and chronic right shoulder pathology was diagnosed on 8 October 2012 and continued to degenerate in subsequent years;
(e)on the balance of probabilities, did not suffer repeated aggravations of a pre-existing ailment in his right shoulder, which was contributed to a significant degree by his employment at Linfox, within the meaning of section 5B of the Act;
(f)does not reasonably require medical treatment in the form of a right shoulder arthroscopy, sub-acromial decompression, rotator cuff repair and biceps tenodesis, to treat his accepted injury;
(g)does not reasonably require biceps tenodesis alone as a discrete surgical procedure, noting this was only recommended as a ‘possible’ option in the context of more compelling surgery to address his pre-existing right shoulder condition, and the influential weight of specialist medical opinion recommends conservative, non-operative treatment given the specific circumstances of his case;
(h)did not declare or fully declare the history of his right shoulder symptomology on the occasions detailed in these reasons, requiring his evidence and some of the expert medical evidence to be treated with caution; and
(i)may suffer symptoms in the longer term from his torn right biceps tendon, which would need to be the subject of a future claim under the Act.
It therefore follows that the decisions to reject Mr Petrevski’s claim for surgery and to cease compensation for his accepted condition on 22 April 2016 were correct.
Consequently, I affirm both of the decisions under review.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

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

Associate

Dated: 24 May 2017

Date of hearing:	3, 4 & 5 April 2017
Counsel for the Applicant:	Ms Angela Malpas
Solicitors for the Applicant:	Verduci Lawyers
Counsel for the Respondent:	Mr Charles Clarke
Solicitors for the Respondent:	Moray & Agnew Lawyers

[2017] AATA 725

24 May 2017

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Damages

Duty of Care

Negligence

Vicarious Liability

QUESTION	RESPONSE
10. What injury or illness are you claiming workers’ for?	Tear right biceps supraspinatus tendons
15. Have you undertaken any of the following treatments for the injury or illness you are submitting this claim for? · Physiotherapy · Chiropractor · Hospital treatment · Pharmaceuticals · Counselling · Other (please specify)	NIL
16. Have you ever had a similar symptom, injury or illness, work-related or otherwise?	No
17. Have you ever received medical treatment for a similar injury or illness?	No
18. Have you ever claimed workers compensation for a similar injury or illness?	No