Power and Linfox Australia Pty Ltd (Compensation)

[2018] AATA 4660

Power and Linfox Australia Pty Ltd (Compensation) [2018] AATA 4660 (19 December 2018)

Division:GENERAL DIVISION

File Number:           2017/5578

Re:Alan Power  

APPLICANT

Linfox Australia Pty LtdAnd  

RESPONDENT

DECISION

Tribunal:R. Cameron, Senior Member

Date:19 December 2018  

Place:Melbourne

The Tribunal sets aside the reviewable decision of 7 September 2017 and in substitution decides that the Respondent is liable to pay compensation to the Applicant in respect of tears to the supraspinatus tendon and consequential adhesive capsulitis.

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

R. Cameron, Senior Member

Catchwords

COMPENSATION – left shoulder and/or neck condition(s) – whether condition suffered an injury or disease – whether employment contributed to condition to a significant degree – decision under review set aside

Legislation

Safety Rehabilitation and Compensation Act 1988 (Cth)

Cases

Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468

Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286

REASONS FOR DECISION

R. Cameron, Senior Member

19 December 2018

INTRODUCTION

1. The application by Alan Power is for review of a decision made by the Reconsideration Officer of the Respondent, Linfox Australia Pty Ltd, on 7 September 2017. That decision affirmed the Determination dated 8 August 2017, which found that the Respondent had no liability to pay compensation to the Applicant in respect of a left shoulder and neck condition pursuant to section 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”).

   LEGISLATIVE FRAMEWORK

2. Section 14 of the Act provides that an employer is liable to pay an employee compensation with respect to an injury suffered by them if it results in death, incapacity for work or impairment.

3. Under section 5A of the Act, “injury” is defined as follows:

   5A Definition 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;

   but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

4. Under section 5B of the Act, “disease” is defined as follows:

   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.

5. Subsection 5B(2) of the Act provides:

   (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.

6. Section 4 of the Act defines “ailment” as any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

7. The term “significant degree” is defined in subsection 5B(3) of the Act to mean a degree that is substantially more than material.

   THE EVIDENCE BEFORE THE TRIBUNAL

8. The evidence before the Tribunal is both documentary and viva voce.

9. The Applicant gave evidence by way of a witness statement and from the witness box. Dr Batool a general practitioner, and orthopaedic surgeons Mr Pang and Dr Hooper, also gave viva voce evidence on behalf of the Applicant.

10. The Respondent called Associate Professor Steadman, a consultant orthopaedic surgeon and David Lancashire a Distribution Centre Manager, both of whom attended the Tribunal in person and gave evidence from the witness box. Associate Professor Steadman and Mr Lancashire also made witness statements that were in evidence.

11. Documentary evidence consisted of the “T” documents together with several separate exhibits that included, amongst others, additional medical reports, medical records (including the “Patient Medical History” of the Applicant from the Murray Road Medical Centre and documents concerning a pre-employment screening test attended by the Applicant), documents concerning high reach forklifts, the Respondent’s “RDC Job Dictionary” and several photographs of high reach forklifts.

    THE ISSUES BEFORE THE TRIBUNAL

12. The Tribunal considers the issues before it to be:

    (a)whether the Applicant suffered:

    (i)an injury (other than a disease) arising out of or in the course of his employment with the Respondent; or

    (i)a disease, being an ailment or the aggravation of an ailment suffered by the Applicant that was contributed to, to a significant degree, by the Applicant’s employment with the Respondent; and

    (b)whether the Applicant is entitled to compensation pursuant to section 14 of the Act in respect of a left shoulder strain with neck strain due to repetitive strain injury/tendinosis (“the injury”).

    SOME OBSERVATIONS ON THE EVIDENCE OF THE APPLICANT

13. The actual details of the Applicant’s evidence will be considered further in these reasons. However, it is considered appropriate to make some general observations on his demeanour and the evidence that he gave overall to the Tribunal. The reason for this is that significant emphasis was placed by Mr Clark for the Respondent upon the Applicant’s credibility both in the course of searching cross-examination and in the Respondent’s closing. Detailed submissions were made by Mr Clark concerning several aspects of the Applicant’s evidence including several alleged inconsistencies.

14. Amongst others, a significant factor in the attack on the credibility of the Applicant was that his evidence from the witness box did vary significantly from that contained in his witness statement filed and served in this proceeding. One particular variation concerned the additional evidence he gave from the witness box (both in evidence in chief and cross‑examination) about driving another brand of forklift, known as a “Crown”, at the Respondent’s premises over some time. The Applicant’s evidence was that the steering wheel or steering mechanism of the Crown forklift was harder or stiffer than that of the Toyota Raymond forklift that he was driving on the day of the incident that he complained of on 20 June 2017.

15. This account concerning the Crown forklift was also not provided to several doctors to whom the Applicant furnished a patient history. In particular the information was not provided to Associate Professor Steadman who prepared three reports on the Applicant that were in evidence before the Tribunal. However, from 20 June 2017 there is evidence that the notion of a “repetitive strain injury” suffered by the Applicant was raised by him with various practitioners. Significantly, it is referred to by Dr Pawar who the Applicant saw on 20 June 2017 following the onset of pain in his shoulder. It was also referred to by his treating general practitioner Dr Batool. Both doctors signed medical certificates to that effect that were provided to the Respondent.

16. The issue of the Crown forklift having a harder or stiffer steering mechanism was raised by the Applicant in the context of it possibly contributing to a repetitive strain injury. He was tackled by the Respondent on this formidably in cross-examination. Whilst it must be acknowledged that this was not raised in his witness statement, as noted earlier the suggestion could hardly have come as a surprise to the Respondent. There are several reasons for this. The Certificate of Capacity prepared by Dr Pawar on 20 June 2017, the day of the incident in question, specifically refers to a “Left shoulder strain, tendinosis due to repetitive strain injury”[1]. Dr Batool signed a Certificate of Capacity on 26 June 2017 that described the diagnosis of the Applicant as: “Left shoulder strain with neck strain due [t]o repetitive strain injury.”[2] A further Certificate of Capacity was signed by Dr Batool on 3 July 2017 that described the diagnosis of the Applicant as: “Left shoulder strain with neck strain due [t]o repetitive strain injury… USS showing mild Subdeltoid Bursitis”.

    [1] The Certificate of Capacity is document T 15 of the T documents. The specific reference to "repetitive strain injury" by Dr Pawar is to be found at page 36 of the T documents. The evidence of the Applicant which was not challenged was that he attended Dr Pawar after it was arranged by one of his superiors from the Respondent.

    [2] The Certificate of Capacity is document T 18 of the T documents.

17. The “Claim for Workers’ Compensation” dated 30 June 2017, that the Applicant submitted to the Respondent, included a description of the diagnosed condition” as: “Left shoulder strain with neck strain due to repetitive strain injury/tendinosis, Left shoulder/neck”. Question 25 of the Claim for Workers’ Compensation asks: “What actually injured you, or made you ill?” The response provided is: “Repetitive movement of forklift operation”[3]. These comments in the documentation concerned are consistent with the Applicant’s evidence. The documents were also attached to a letter of instruction from the Respondent to Associate Professor Steadman on 19 July 2017. It is unfortunate that reference perhaps was not made to this issue in his witness statement. However, the contemporaneous documents contain an account that is consistent with the evidence he gave from the witness box.

    [3] The Claim for Workers’ Compensation is document T 19 of the T documents.

18. There was also an attack on the credibility of the Applicant because he did not, in response to a “Pre-Employment Screening” test, mention that he had low back pain or had been taking medication for such low back pain prior to the screening test being undertaken. The Applicant’s response was that he answered the questions directly as they were put to him and that on the day in question he didn’t have any back pain. Also, he stated that he hadn’t taken Voltaren on the day of the examination. Additionally, he stated that he had ceased taking Voltaren by that date. He was also asked questions about whether he had insulin-dependent diabetes to which he replied that he did not. The Applicant explained that insulin-dependent diabetes was Type I not Type II which he had been diagnosed with. He was also probed as to whether he took medication for a heart condition. His response was at that time, namely 27 March 2017; he was not taking any medication concerning his heart.

19. The pre-employment screening assessment took place on 27 March 2017[4]. The “Patient Medical History” from the Applicant’s treating general practitioners at the Murray Road Medical Centre in Preston, was in evidence[5]. These medical records contain extensive detail of the Applicant’s medical history concerning a variety of issues including but not limited to, lower back pain, Type II diabetes and cardiac valve functioning. The Tribunal accepts that the answers given by the Applicant at the pre-employment screening test were truthful responses on his part. This conclusion also needs to be viewed in light of the fact that the examiners who conducted the assessment were not called to give evidence. To that extent, there was no contradictory evidence to the version of events given by the Applicant concerning what occurred when that assessment was undertaken including his response to questions asked of him.

    [4] The "Pre-Employment Screening Results" from that assessment on 27 March 2017 were in evidence and exhibit A9. It concluded under the heading "Result" that the Applicant was "Suitable for jobs rated Heavy, Medium and Light".

    [5] Exhibit R4.

20. The Respondent’s counsel informed the Tribunal that it was impractical to track down the person or persons who undertook the examination. It was not explained what the impracticalities were. However unlikely this explanation may seem, the Tribunal does not draw any adverse inference against the Respondent by reason of the failure to call the person or persons who conducted the assessment. There was in evidence before the Tribunal what might be described as a pro forma list of questions that the Applicant was apparently asked by the examiners when the assessment was conducted on 27 March 2017.[6] If the questions were put to the Applicant as they appear on the pro forma list, his responses were overall correct and consistent with his evidence in the witness box.

    [6] Exhibit R6.

21. The Tribunal considers that the Applicant was a truthful witness notwithstanding some of the inconsistencies that were highlighted in the searching cross-examination referred to above. The explanation that he offered for the inconsistency concerning the make of forklift was that he was only asked about the forklift that he was driving on the day when the incident occurred. The Tribunal accepts this explanation. It was apparent from observing the Applicant in the witness box that he is a person who was challenged by the experience. He attempted to do his best in the alien environment of the witness box. The Applicant tended to view the application in terms of having suffered a workplace injury as a result of the incident on 20 June 2017 and did not consider other matters overly relevant unless he was specifically directed to them. This may to someone who is legally trained and spends frequent time in a tribunal or court environment appear to be a reconstruction, contrivance or implausible. However, having observed the Applicant, both in his evidence in chief and in cross-examination, the Tribunal considers this is the way that the Applicant believed his evidence should unfold. He was not prone to deliberately giving incorrect evidence or reconstructing. Overall, the Tribunal accepts his evidence and finds that he left the witness box with his credibility intact.

    THE APPLICANT’S EMPLOYMENT WITH LINFOX

22. The Applicant commenced employment with the Respondent in 2010. At all relevant times to this application he was employed as a Grade 3 Storeman in receivables at a warehouse or depot conducted for Kraft. His dominant role was to operate a forklift. The type of forklift concerned is sometimes known as a “high reach forklift”. The relevant forklift was used to store pallets of Kraft products including bulk raw produce such as cocoa, fat, milk and finished goods such as biscuits and Vegemite. Additionally, he was also involved in what is described as “picking” consumer goods and preparing them for dispatch.

23. The high reach forklift was primarily used to transport pallets of stock and store them in racking at various levels up to the ceiling of the warehouse. The Applicant gave evidence that the pallets in this arrangement were regularly stacked up to eight high. When they were at this height, operation of the forklift sometimes required the use of a camera. There were two types of high reach forklift. One was known as a “single reach” and another one was known as a “double reach”. The double reach forklift could carry two pallets at one time and enable both pallets to be stored with one in front of the other at whatever level was required in the warehouse. The purpose of this was to maximise the number of pallets that could be stored in any storage space and minimise the handling requirements. There were several photographs in evidence[7] showing the type of forklift in use and the stacking arrangements that typically are in place in a warehouse such as that used by the Respondent at the time in question where the Applicant worked. (These photos were apparently derived from a brochure for the model of Toyota Raymond forklift used by the Applicant at the Respondent’s premises on or about June 2017).

    [7] Exhibit A12.

24. The Applicant gave evidence in response to a question that he spent approximately 70 per cent of his working time driving forklifts. He gave a description of how each of the forklifts was operated. There are two mechanisms that the forklift operator must use. The operator’s right-hand is used to control a lever which operates the up-and-down mechanism. The right-hand also, in addition to operating the up-and-down mechanism, is used to hold a joystick which operates the tine extension. The left-hand operates a steering mechanism which he described as “a little handle with a knob” which rotates through an arc of 360° in a circular motion. The Applicant stated that he is right handed. It is possible to operate these forklifts from both sitting and standing positions. The evidence of the Applicant was that he spent an equal amount of time both standing and sitting when operating the forklifts concerned. He also observed both in his witness statement and in his evidence from the witness box, that when he was operating the high reach forklifts he was constantly looking upwards whilst both hands and arms were operating the relevant mechanism. The evidence that he gave concerning the constant necessity to look upwards whilst at the same time operating the controls was consistent throughout.

25. It should be noted at this juncture of the reasons that, in the course of his evidence in chief, the Applicant stated that he used both the Toyota Raymond and the Crown forklifts. This was the first occasion in the material (including his witness statement) that the Applicant had mentioned the fact that he used two different makes of forklift. Much was made of this by counsel for the Respondent both in cross-examination and his closing submissions. The Applicant readily conceded in evidence that when Associate Professor Steadman took his patient history from him that he only informed him that he was using the Toyota Raymond on 20 June 2017.

26. The Applicant described the operation of the Crown forklift as being different to that of the Toyota Raymond because it has a right hand joystick with a thumb lever operation and button underneath to select different options. He described the Crown forklift as generally having a heavier steering mechanism. He gave evidence that he used the Crown forklift most days. Particularly, in the four months prior to 20 June 2017 when he says he suffered the injury concerned. His evidence was that he used the Crown forklift much more frequently than the Toyota Raymond. He estimated that approximately 90 per cent of the time when he used a forklift, it was in fact a Crown forklift.

27. The Applicant in the course of his evidence from the witness box (but not in his witness statement) described the Crown forklift as having “hard steering” and used other words to similar effect. He stated that he believed the hard steering may have contributed to his problem with his left shoulder. In cross-examination he acknowledged that he did not express this view to Associate Professor Steadman, Mr Pang or Dr Hooper who also gave evidence in this proceeding. When probed about what he told Associate Professor Steadman and why he did not mention the hard steering on the Crown forklift he said it was because Associate Professor Steadman asked him what he had been doing on the day and he told him, which was driving a Toyota Raymond.

28. Associate Professor Steadman (his evidence will be touched on further in these reasons) stated that he took a history from the Applicant. He stated he could not say verbatim what the Applicant furnished to him by way of history but said that the Applicant implied that the incident concerned was the only thing that happened on the day in question. Associate Professor Steadman did say that he went through with the Applicant what happened on the day in question and that the Applicant described what he was doing, namely that his left hand was controlling the steering wheel and the right one controlling the lever. The Applicant gave a demonstration of how he was using his arms by moving them up and down in the air and a demonstration when they were down alongside him. The Applicant told Associate Professor Steadman that he was operating a Toyota Raymond when the incident occurred, stacking pallets of cocoa blocks. Associate Professor Steadman wrote in his notes “nothing exceptional” but did record that the Applicant told him that he was looking up constantly.

    The events of 20 June 2017 and thereafter

1. On 20 June 2017 the Applicant commenced his afternoon shift at 2:30pm. Approximately an hour later he was undertaking what he described as “put away duties” on a Toyota Raymond reach forklift. The evidence he gave was that he was putting a pallet into a “4 high position”. He lined the forklift up with the second location and lifted the pallet to level 4 using what he described as the sliding mechanism. Whilst placing the pallet into the level 4 position a piece of loose wood fell from the location that he was inserting the pallet. He was making adjustments to where he was proposing to drop or place the pallet using the multiple levers on the forklift. Whilst operating the controls of the Toyota Raymond forklift with his hands and arms and looking upwards to maintain visual contact with the load that was on the tines being inserted into the level 4 location, he felt what he described as a “smarting pain” at the rear of his left shoulder. He then also felt what he described as the onset of symptoms in his left shoulder joint.

2. After feeling the “smarting pain” he thought it was a muscle strain and continued to work in the belief that such pain would dissipate after further work or warming up as he described it. He continued working until approximately 5:00pm by which time the pain was worse. At 5:00pm he had a break and decided to undertake some rotational exercises (in one statement he described them as “rotation stretches”) in the hope that that might loosen his shoulder up. Not long after commencing the rotational stretches or exercises he felt a sharp radiating or shooting pain down his left shoulder. He stated the pain travelled down the back of his left arm. Once he experienced this pain he stated that he immediately stopped and spoke to the Occupational Health and Safety representative (Jason D’Avione) who was present in the Receivables Office. The Applicant asked Mr D’Avione if he had ever experienced shoulder pain while driving the forklift. Apparently, Mr D’Avione said no and advised the Applicant to immediately report it to his supervisor Jason Jones.

3. Upon reporting the incident to Mr Jones, the Applicant immediately ceased work. He made a statement to Mr Jones who wrote it down and the Applicant signed it. (The handwritten statement signed by the Applicant was in evidence before the Tribunal[8]). Mr Jones arranged for the Applicant to immediately see a local general practitioner Dr Pawar. Dr Pawar examined the Applicant’s left shoulder region and completed a “Certificate of Capacity”[9]. Under the second part “Diagnosis, My Clinical Diagnosis based on my examination of you and other available information is: Left shoulder strain? Tendinosis due to repetitive strain injury”. In the third part “Capacity assessment, Your work capacity is affected by your injury/condition as follows:” three physical functions are identified which the Applicant “Cannot” undertake or could only undertake “With Modification”; namely “Reach above Shoulder, (Cannot) Use injured arm/hand and “Lift” (With modification)”. In the fifth part under the heading “Treatment Plan” Dr Pawar recommends “Simple analgesia, icepack, light duties”. For reasons that were not explained, Dr Pawar was not called to give evidence. The Certificate of Capacity was however in evidence.

   [8] Exhibit A11.

   [9] Document T 15 of the T documents.

4. After consulting Dr Pawar the Applicant returned to work and completed his shift undertaking light duties by way of office administration. An “Incident/Investigation Report”[10] was prepared[11] which recorded the incident much in the same terms as the description given by the Applicant in his evidence. It recorded the effected “Body Part” as the “Shoulder”, the “Side of Body” was described as the “Left” and the “Nature of Injury” was described as “Muscle, tendon, soft tissue disorders”. It is not apparent to the Tribunal nor was any evidence led as to why, the nature of the injury described in the Incident Report varied from the description provided by Dr Pawar. The Incident Report records the “Responsible Person” as David Lancashire who, as noted earlier, gave evidence before the Tribunal. He did not in the course of his evidence address the reason why there was a different description between the contents of the Incident Report and the Certificate of Capacity signed by Dr Pawar.

   [10] Document T 14 of the T documents.

   [11] It noted the “Date/Time Advised” as “20.6.2017 17.20”

5. The next day, the Applicant woke and was experiencing neck pain (predominantly on the left-hand side of his neck), stiffness and what he described as significant pain in his left shoulder. He described the pain in his shoulder as being in his entire shoulder and joint and down to the bicep. He was unable to drive a motor vehicle and did not attend work. He sought treatment from Dr Batool a general practitioner in Northland. (Northland Medical and Dental Centre). She recommended treatment by way of Voltaren tablets, ultrasound and an x-ray. She provided a three-day medical certificate stating that the Applicant had no capacity for work. She stated that her clinical diagnosis was: “Left shoulder strain with neck strain due [t]o repetitive strain injury”[12].

   [12] Document T 16 of the T documents.

6. Physiotherapy was undertaken by the Applicant with physiotherapist Rachel Neate. The first consultation being on 26 June 2017[13].

   [13] A report from Ms Neate was in evidence before the Tribunal being document T 23 of the T documents.

7. An ultrasound of the Applicant’s left shoulder was undertaken on 27 June 2017. The results of the ultrasound of the Applicant’s left shoulder stated that there was “no significant abnormality of the rotator cuff tendons or the long biceps tendon”. It described that there was only “equivocal to mild thickening of the subdeltoid bursa suggesting possible mild bursitis only”.[14]

   [14] The left shoulder ultrasound results prepared by Dr Tony Tan dated 27 June 2017 is part of document T 27 in the T documents.

8. At the behest of the Respondent the Applicant was examined by Associate Professor Steadman on 24 July 2017. Associate Professor Steadman recommended that an MRI scan be undertaken. (This is indeed confirmed by Associate Professor Steadman in his report of 4 August 2017 (page 92 of the T documents)).

9. An MRI scan was undertaken on 31 July 2017[15]. The MRI scan revealed that: “Supraspinatus demonstrates approximately 1cm from its tendinous insertion a 2mm articular surface sided partial thickness tear as well further as the same position and approximately 9mm bursal surface sided partial thickness tear”. There was said to be “convincing evidence of adhesive capsulitis with oedema seen in the axillary pouch as well as filling in of the rotator interval with inflammatory soft tissue”. They were described as “partial thickness tears of the articular and bursal surfaces of the supraspinatus approximately 1cm from its tendinous insertion”. There was also evidence of adhesive capsulitis (Frozen Shoulder). In his report dated 17 July 2018, Dr Hooper stated that the MRI also revealed tendinopathy. After the MRI was obtained, the Applicant was referred to Mr Grant Pang an orthopaedic surgeon.

   [15] The MRI scan was carried out by the Medical Imaging Department, of the Northern Hospital. The report of the scan from Dr David Burrows, Radiologist, is in evidence and is document T 31 of the T documents.

10. Following the referral to Mr Pang, he performed hydrodilatation on two occasions on 14 December 2017 and 14 May 2018. The Applicant has given evidence that whilst the hydrodilatation has improved his shoulder movement somewhat, he still experiences pain. He has currently regained full movement in his neck. The Applicant’s current symptoms include pain and reduced movements of his left arm at the shoulder joint. He says that he is unable to lie on his left side as it causes aggravation to his shoulder. He described ongoing sleep disturbance since the injury occurred. What he describes as “unguarded movement” tends to bring on severe pain waking him up and sometimes by reason of this phenomenon he is unable to sleep. Whilst he has resumed driving a car as a result of improvement with his neck, he says he experiences limitations when using his left arm whilst steering particularly when he drives a car for an extended time. Additionally, he also observed that any activity using his left arm at the shoulder joint tends to be difficult and painful.

11. The Applicant gave further evidence that the pain in his left shoulder has restricted his capacity to pursue his hobby of collecting vintage toys. He has also described becoming socially isolated. He does live with his parents and brother and referred to the fact that his family assist with household duties. He described that any task involving lifting his arm above shoulder height is difficult, such as hanging the washing. He also described washing and drying his hair or pulling up a doona as being difficult. He recounted experiencing pain performing everyday tasks. He did describe what he perceived to be difficulties in finding work elsewhere due to his inability to be able to lift heavy items and/or carry out overhead work which is a frequent occurrence in the working environment of warehouses and storage facilities in which he is experienced.

12. The Applicant has not worked since the incident on 20 June 2017 because he has either been certified as unfit to work, or only fit for light or alternative duties.

13. By way of a letter dated 6 July 2018, he was advised by the Respondent that his employment had been terminated. The basis for the termination was the fact that the Applicant was unfit to perform the inherent requirements of his work together with the length of absence.

    Mr Lancashire’s evidence

14. Mr Lancashire occupies the position of a Distribution Centre Manager with the Respondent. He stated that he knows the Applicant. He was at the time of the incident on 20 June 2017 the Distribution Centre Manager at the Respondent’s site at Derrimut.

15. He made a statement dated 4 September 2018 which was in evidence before the Tribunal. He also gave viva voce evidence. He had driven both Crown and Toyota forklifts and was familiar with their specifications and steering. Mr Lancashire explained the record-keeping system of the Respondent. He undertook searches of the following archival records of the Respondent:

    (a)Crown Rental Unit;

    (b)Pre-check Logbook;

    (c)Onsite Hazards; and

    (d)VCM Register.

16. Mr Lancashire conducted a search of the Pre-Check Logbooks and was unable to find any logbooks relating to the Crown forklifts. He stated that it was a reasonable assumption that the logbooks would have been left with the forklifts concerned. Such forklifts apparently having been subsequently disposed of with the closure of the Derrimut site. 

17. Mr Lancashire stated in his evidence that if there were a problem with the power steering systems of any of the forklifts it should have been recorded in the Respondent’s business records. The fault or issue concerned should have been recorded at the very least in the relevant forklift Logbook and also recorded in the Online Hazard Register. The Applicant in his evidence acknowledged that he was familiar with, and knew how to use, the Online Hazard Register.

18. There was also the VCM Register which had been introduced not long prior to the Derrimut site closing. However, it was in operation during the time that the forklifts were used by the Applicant in May and June 2017. This document is a maintenance register which records any action required and taken, usually a service, but also rectification, removal and replacement of necessary parts.

19. The result of the searches conducted by Mr Lancashire is that no entry was made in any of the Respondent’s relevant business records concerning difficulties, deficiencies or other problems with the power steering systems of any forklift at a site that the Applicant worked at during the relevant period.

20. Mr Lancashire gave evidence that he had driven both the Toyota and Crown forklifts “a fair bit”. When probed in cross-examination about the frequency of his use of the forklifts he stated that he usually drove them in peak periods when there might have been a shortfall that he would plug in terms of the Respondent’s staffing requirements. This was usually a couple of times per month for a few hours at a time. He conceded, to his credit, that he possibly had not driven each of the forklifts that were situated on site but he had driven many of them over the years and certainly both the Toyota and the Crown. He was a licensed operator of them. He also undertook the training and assessment for the Respondent’s employees on the site. He gave evidence that he did not identify any difference or difficulty with the power steering on any of the forklifts operated by the Respondent at its Derrimut site.

21. When probed in cross-examination he stated that if there was an issue with the steering of a forklift that would be described as a fault, he would have expected it to have been reported. He did concede (one again to his credit) that potentially there could be some variation between the steering of forklifts or their stiffness perhaps but he had not observed any such variation. He did emphasise the Respondent’s training programs and its requirements that employees make entries in its business records that he had identified so that there could be no doubt.

22. In response to Mr Lancashire’s evidence the Applicant conceded that he was aware of the Respondent’s record-keeping system. In particular how the logbook and Online Hazard Register function. He gave evidence that if a fault was found to exist with a forklift it would be entered in both the forklift’s logbook and the Online Hazard Register.

23. In cross-examination the Applicant was probed about whether he registered the heavy steering in the Crown forklift that he complained of in either the relevant forklifts’ Logbook or the Online Hazard Register. He stated he did not. When probed as to why he did not he said it was because heavy steering did not affect the operation of the forklift as it could continue to be used. In other words the forklift wasn’t faulty which justified an entry in its Logbook or the Online Hazard Register. The Tribunal accepts the Applicant’s explanation.

24. The Tribunal finds that Mr Lancashire was a credible witness. The concession made by him that potentially there could have been some variation between the steering of the forklifts or their stiffness which he had not observed, is noted. More probably than not, this explains the difference between his evidence and that of the Applicant. It is probably analogous to a situation where the steering of different makes of motor vehicle do not feel the same to the driver. More likely than not this was why the Applicant did not make an entry in either the Logbook or the Online Hazard Register.

    THE MEDICAL EVIDENCE

    Dr Batool

25. Dr Batool, a general practitioner, gave evidence from the witness box. She had also prepared reports dated 21 April 2018 and 29 June 2018 and had signed several certificates of capacity relating to the Applicant. She said those reports reflected the history of the Applicant together with her findings and conclusions.

26. She stated that she had seen the MRI scan and explained to the Applicant that it was beyond her specialty. She then referred him to a specialist (Mr Pang). In her first report dated 21 April 2018 she stated that the Applicant “developed a problem of frozen shoulder post partial thickness tear of the rotator cuff”. She stated that the treatment plan was in accordance with that recommended by Mr Pang the orthopaedic surgeon. Her second report of 29 June 2018 concluded that the injury was “due to repetitive strain to the shoulder despite the fact he suffers from diabetes”. She referred to the letter, as she called it, that was first prepared by her to WorkCover which she said clearly indicated that the Applicant’s condition began due to repetitive strain to the shoulder which can lead to the tear followed by adhesive capsulitis. Her first certificate of capacity dated 21 June 2017 referred to left shoulder strain with neck strain due to repetitive strain injury. She maintained this diagnosis in the Certificates of Capacity she subsequently signed.

27. In cross-examination she conceded that she really had not detected the injury, she simply followed what was said by the specialist. She stated that she did not manage the injury at all. On the question of repetitive strain she gave evidence that the Applicant explained to her that he was a forklift driver and could move his arms in different directions which was consistent with repetitive strain. This was reflected in the certificates signed by her as observed above.

28. Beyond these observations the evidence of Dr Batool was of limited value.

    Dr Hooper

29. Dr Hooper prepared a report dated 17 July 2018 which was in evidence. The report followed an examination he had conducted of the Applicant on 17 July 2018. The history provided by the Applicant to him is recounted in the report. The Applicant informed Dr Hooper that he was looking up and driving his forklift when he developed sudden pain in his left shoulder. The pain radiated to the deltoid region but did not go further.

30. In cross-examination when probed on whether the Applicant’s diabetes had reached a point where he would feel some pain in his shoulder Dr Hooper denied this and said that the Applicant had given him a history of a sudden onset of pain. Once again this is consistent with the evidence given by the Applicant in his witness statement and in the witness box.

31. Dr Hooper’s report diagnosed tendinopathy and capsulitis involving his left shoulder with a restricted range of motion. He stated that the symptoms came on in the course of his work. He expressed an opinion that he regarded the Applicant’s work precipitated the symptoms and that such symptoms were consistent with the cause he described. Dr Hooper repeated that the cuff tear was the cause of the Applicant’s symptoms and can be considered to be aggravated by his work. Critically, he did opine that it is conjectural to assert that the onset of his symptoms related to his diabetes. He consistently maintained this position both in his report, his evidence in chief and in cross-examination.

32. Dr Hooper explained that tendinopathy is damage or pathology in a tendon. It is a non‑specific term. With shoulders such as this, medical professionals can talk about both tendinopathy and capsulitis which are minor tears in the tendon. It is a general term which can be due to swelling and bruising. However, in the Applicant’s case it was due to damage of the rotator cuff. It is what occurs when inflammation develops in the rotator cuff which causes capsulitis and thickening in the cuff which leads to affected movement. Sometimes, it would be called a “frozen shoulder” or as the Applicant might describe it, a painful stiff shoulder. It is not always easy to know what the cause is but the MRI explains the symptoms and the signs that the Applicant has. He explained that it connects the evidence of damage to the tendons and damage to the shoulder.

33. Dr Hooper concluded that a medical practitioner should listen to what the patient says. The Applicant has experienced a sudden movement and it was likely that the sudden sharp pain caused the onset of the tear or aggravation of the problem. Dr Hooper stated that specialists in his field see hundreds of shoulder injuries and problems. Some of those injuries and problems are caused by significant trauma and some are caused by trivial or miniscule occurrences such as reaching across a desk to pick up a pen or tying up a neck tie. One might say he noted, that those types of incidents are not sufficient enough to cause a problem but they do. Ultimately, he stated, to his credit, that one cannot always know the answer to that question.

34. Dr Hooper contended that the Applicant’s left shoulder was asymptomatic before 20 June 2017 (which the Tribunal accepts); an incident happened at work on that day and it has been symptomatic since. He further contended that one does not experience sudden pain and lack of movement unless something has happened. There was a change in the Applicant’s pathology and that change was the tears in the cuff. These tears came on in the course of the Applicant’s work. He further observed that possible causes could have been a sudden movement in his arm whilst he was driving the forklift. All repetitive rotational movements could cause the tears as shown in the MRI. Dr Hooper did concede, once again to his credit, that the Applicant was a relatively young man to have this type of pathology.

1. When probed on the question of whether the Applicant’s condition could have been caused by diabetes, Dr Hooper readily conceded, to his credit, that it was possible and is more prevalent in people such as the Applicant. However, he said he was happy to back up his opinion that it was caused in the course of his work. He stated he had no reason to disbelieve the Applicant. He also placed emphasis on taking notice of the Applicant’s treating surgeon, explaining that the treating surgeon (Mr Pang) had seen much more of the Applicant than Associate Professor Steadman or him. He repeated throughout cross‑examination that one cannot conclude that it was diabetes that caused the Applicant’s condition. He maintained that one of the reasons he was prepared to back his conclusion as to the cause, was that if it were caused by diabetes it would be less likely to have manifested itself in a sudden onset of pain. This was a point of difference between his views and those of Associate Professor Steadman.

   Mr Pang

2. Mr Pang produced two reports one dated 11 April 2018 and a lengthier one of 26 April 2018. He also gave viva voce evidence. His report of 26 April 2018 explains that because of the Applicant’s clear description of the injury and the timeline of events, he considered it to be a work related injury. In his evidence to the Tribunal he repeated that the Applicant informed him he was operating machinery and was reaching out and felt a twinge in his shoulder. He emphasised that prior to that incident on 20 June 2017 the Applicant informed him he had experienced no such pain, symptoms or functional impairment. He repeated that he was advised by the Applicant in taking a patient history that sometime after the initial event where he felt the twinge in his shoulder (in the course of probing cross-examination he stated that in the history he took the Applicant referred to “sharp shooting pains”) he performed some rotational movements or exercises which caused the pain he experienced to worsen. When asked what happened to cause the pain to worsen, Mr Pang stated that in his opinion the Applicant suffered either a strain or small tear of the rotator cuff tendon at the time of the incident and by subsequently trying to loosen up the shoulder by rotating the arm, made it worse.

3. Mr Pang was probed searchingly in cross-examination as to whether there was a difference between a twinge and sharp shooting pain. He steadfastly responded that a twinge is a sharp pain that suddenly occurs. He did not accept that there was a difference between the two. He contended it is a sudden onset and is consistent with the pain that the Applicant stated he experienced

4. Mr Pang further observed that rotator cuff injuries commonly occur with any repetitive motion and it was not surprising that this had occurred to the Applicant during the course of operating rotational type controls or in the act of reaching out as he had explained it. He observed that although the injury sustained was quite minor in the form of small partial thickness tears of his supraspinatus, it can subsequently initiate an inflammatory process resulting in the development of the condition as suffered by the Applicant. Although the Applicant has diabetes and it is a known risk factor of the condition, it was not, in his opinion, the cause. He observed that simply having diabetes does not mean frozen shoulder is inevitable. There are certainly more patients with diabetes who do not have frozen shoulder than those who do. He consistently adhered to this opinion throughout his evidence in chief and in cross-examination. He concluded that the Applicant suffered either a strain or small tear at the time of the incident and trying to rotate the arm simply made it worse. He stated that the mechanism described by the Applicant was consistent with a rotator cuff injury caused by repetitive motions as he had no prior symptoms, and that the injury occurred at work.

5. During searching cross-examination by counsel for the Respondent it was put to him, amongst other things, that the Applicant’s condition was as a consequence of ageing. This proposition was rejected by Mr Pang on the grounds that with a 40-year-old patient it would be a very rare situation indeed. However, with a 60-year-old patient it would be far more likely to be a degenerative condition. He contended that notwithstanding that it was a comparatively small tear; it was nonetheless an acute tear suffered by the Applicant. Further, he noted that the MRI scan took place approximately six weeks after the incident on 20 June 2017. As the tear had not occurred in the last week, there was no evidence of degeneration in the tendon evident on the scan. He concluded that because the MRI was taken six weeks after the initial injury, there would have to have been a significant tear for the results of the scan to still show ongoing inflammation or swelling in the area concerned. Whereas if it were a minor tear, after six weeks he would not have been surprised if none of those signs or symptoms were present.

6. Associate Professor Steadman’s “thesis” was put to him that the frozen shoulder experienced by the Applicant was explicable on the basis of his diabetic condition. Therefore, the symptoms that the Applicant felt at work on 20 June 2017 were the first unmasking of the adhesive capsulitis that has now been diagnosed. Mr Pang rejected this suggestion on the grounds that it is unusual for patients to present with an acute episode of pain when they suffer from adhesive capsulitis. He contended that with the onset of frozen shoulder it is typically a gradual onset where patients frequently complain of pain over several days and weeks that gradually worsens. It is very unusual for someone to present with an acute onset of a sudden type of pain when they have frozen shoulder. Therefore, Mr Pang concluded that in his opinion it would be very unlikely that the Applicant’s initial presentation on 20 June 2017 would be due to frozen shoulder. Most likely if this were the case; he would have experienced a pain of some sort before the sharp shooting sudden pain he described. He repeated the history given to him by the Applicant that there had been no prior experience of any pain and then a sudden sharp shooting pain on 20 June 2017.

7. Mr Pang conceded that the medical literature showed a link between diabetes and capsulitis of approximately 10 per cent to 20 per cent, which would lead to frozen shoulder. He did observe that this condition is a lifetime risk that covers the young to the old. However, he stated that as he had noted in his report, whilst it was a risk factor he did not see it as the cause. Having diabetes does not mean frozen shoulder is inevitable and there are certainly more patients with diabetes who do not have frozen shoulder.

   Associate Professor Steadman

8. Associate Professor Steadman had produced several reports dated 4 August 2017, 16 March 2018 and 30 May 2018 which were in evidence before the Tribunal. He medically examined the Applicant on 24 July 2017 and 14 March 2018.

9. Associate Professor Steadman concluded that the condition of frozen shoulder on a background of a systematic diabetic condition is likely to be idiopathic and not work related. “Idiopathic” he described in a later report as a word in medicine that means it has no relationship to any event, or in this case injury, as there was no clear injury. He repeated that it is not a mystery and is a well-known orthopaedic condition which has a significant propensity in diabetic patients. He consistently adhered to this opinion in all his reports together with his viva voce evidence from the witness box both in evidence in chief and cross-examination.

10. The 4 August 2017 report records a patient history concerning the events of 20 June 2017. The details recorded note that the Applicant informed Associate Professor Steadman that his mechanism of injury was, he believed, due to his use of the forklift. He explained to Associate Professor Steadman that a lot of the work he undertook for the Respondent was using the high lift forklift looking upwards. He recounted that the Applicant informed him that he used the right hand to operate an up-and-down mechanism whilst the left-hand moved in a circular motion. Whilst using both hands to operate the controls as described he was looking up the whole time. It was whilst looking up that he described the event as giving rise to “the onset of some symptoms”. He recorded that the Applicant advised him that the pain gradually worsened. At that time whilst furnishing a patient history to him, he did not ascribe any importance to the operation of the steering wheel on the forklift.

11. Associate Professor Steadman, after conducting the medical examination of the Applicant on 24 July 2017, recommended that he obtain an MRI of his neck and shoulder. As noted earlier, subsequent to this examination, an MRI of the Applicant’s neck and shoulder was obtained. He explained that this was the reason that his initial medical examination took place on 24 July 2017 but his report was only prepared on 4 August 2017 as he was waiting for the results of the MRI before completing such report. This MRI was also examined by Mr Pang and Dr Hooper and was referred to in their evidence as noted earlier in these reasons.

12. In answer to a specific question (number one on page six of nine[16]) of the 4 August 2017 report, Associate Professor Steadman stated: “There is no specific injury to report, only a gradual onset of symptoms that occurred at about 4:30pm while operating the high reach forklift”. In response to question two on that page, he stated that the Applicant suffers from a frozen left shoulder. When asked to describe what frozen shoulder is he stated that it was that the Applicant had lost external rotation of the left shoulder. He ordered the MRI and on examining it became satisfied that he suffered from frozen shoulder.

    [16] Page 92 (document T 33) of the T documents.

13. Some observations should be made concerning these two portions of Associate Professor Steadman’s report. The Applicant gave a different version of the actual history that he furnished to Associate Professor Steadman, particularly concerning the occurrence of his shoulder condition. The Applicant referred to the “twinge” or “sudden onset”. In response to a question from counsel for the Respondent, Associate Professor Steadman did concede, or perhaps more accurately state, that the Applicant said “sudden onset”. In cross-examination he conceded that the Applicant informed him there was an onset of pain during work duties. In the fourth paragraph on page three[17] of the 4 August 2017 report, Associate Professor Steadman reports that the Applicant informed him that at about 4:30pm: “his symptoms came on and within a couple of hours had become quite excruciating”. He did not use the word or words to the effect of “gradual onset”, as he has written in answer to question one on page six of his 4 August 2017 report. The Applicant’s evidence to the Tribunal and to the other doctors was consistent throughout, in that he said that on 20 June 2017 while operating a forklift he felt a twinge or sharp shooting pain. The Tribunal accepts this evidence from the Applicant.

    [17] Page 89 of the T documents.

14. In Associate Professor Steadman’s first report of 4 August 2017, in response to specific questions asked by the Respondent’s solicitors, he stated there was no specific injury to report, only a gradual onset[18] of symptoms that occurred at about 4:30pm while operating the high reach forklift. Associate Professor Steadman concluded that the changes in the rotator cuff of the Applicant’s left shoulder, on a background of an absence of injury, were degenerative[19]. To explain this he referred to the contents of the MRI report which reveals two discrete structures of the shoulder. There is the rotator cuff which comprises the tendons that allow one to lift the shoulder and the “bag” or “sack” holding the shoulder together. With the condition of frozen shoulder, the bag or sack shrinks and that is why people lose their movement and cannot lift their arm. In an anatomical sense Associate Professor Steadman explained that frozen shoulder is the process that occurs in the bag or sack (sometimes described as the “capsule”), the changes reported in the rotator cuff are basically degenerative. This condition progresses with age. Associate Professor Steadman stated that if autopsies are carried out on 40-year-olds approximately 15 per cent of them would have a hole or tear in the rotator cuff. This percentage increases significantly with advancing age.

    [18] Which as noted earlier the Tribunal does not accept occurred on 20 June 2017 or that he gave instructions in such terms when providing his patient history to Associate Professor Steadman.

    [19] See the last sentence of paragraph 2 under the heading of "Specific questions" of Associate Professor Steadman’s report of 4 August 2017 (page 92 of the T documents, document T 33).

15. He stated that medical science knows that diabetics have a higher risk of suffering from frozen shoulder. Not all diabetics get frozen shoulder, but it is known that of the population that contract the condition, diabetics are in a demographic risk group who are more likely to incur it. However, it is a chronic disease. Medicine recognises disease patterns; we know that population groups are at risk and we see processes such as this occur. Therefore, in his opinion the diagnosis of a frozen left shoulder did not have a work relationship and was the result of multiple external causative factors, principally the diabetic condition.

16. At the time of conducting the examination of the Applicant on 14 March 2018 which resulted in the production of the second report of 16 March 2018, Associate Professor Steadman gave evidence that he asked the Applicant if he had any comments to make about his earlier report. In particular he asked him if there was anything in the report that he disagreed with that was factual. He stated that the Applicant disagreed with the comment in the first report that he drank alcohol. Associate Professor Steadman stated that he checked his notes and had made a note that the Applicant did not drink alcohol. Otherwise, the Applicant stated he agreed with the remainder of its contents.

17. During the 14 March 2018 examination of the Applicant he proceeded to take a further history from the Applicant but there was no change in the description of events that occurred on 20 June 2017. The Applicant emphasised that he was looking up at the same time as he was operating the controls of the forklift in the same way he had described during the course of the first examination. He could not recall the Applicant ascribing any importance to the operation of the steering wheel with his left hand. The Applicant did not give any history to him that the steering wheel or mechanism of the Crown forklift was any harder than the Toyota. He did not go through the Applicant’s history to see what type of forklift he used on other occasions. Associate Professor Steadman, in the course of evidence concerning this examination, referred to his notes. The examination of his notes revealed that the Applicant told him that on 20 June 2017 he was using a Toyota. Tellingly, he had made a note which described it as “sometimes hard to steer”. Associate Professor Steadman also recorded that the Applicant stated to him there was “nothing exceptional”. (Presumably, concerning the forklift he was using on that day). He did record that the Applicant repeated that when the incident happened he was looking up constantly and that his vision was occasionally impaired by the pallets in front of the forklift.

18. Associate Professor Steadman further stated he did not believe the power steering on the forklifts was the mechanism of injury for the Applicant’s rotator cuff tears. This was because the arms are beside the person when they are operating the machine and the person is not using their shoulders. How high the arm gets is important. Rotation was not, he submitted, a function of the rotator cuff tendon.

19. In his most recent report of 30 May 2018, Associate Professor Steadman stated that there was no clinical evidence to support the conclusions of Dr Pang. He repeated that the cause of the Applicant’s condition was idiopathic, most likely caused by the diabetic condition. He did emphasise that the connection between diabetes and frozen shoulder was well recognised. This was repeatedly emphasised by Associate Professor Steadman in his several reports, evidence in chief and during cross-examination.

    CONSIDERATION

20. The parties agree that the medical evidence establishes that the Applicant suffers from a left shoulder condition.

21. The starting point of the Applicant’s contentions is that he suffered an injury (other than a disease) that arose in the course of his employment with the Respondent within the meaning of section 5A of the Act. In the alternative, he contends that the injury to his left shoulder, which has been referred to throughout these reasons, constitutes a disease, namely an ailment to which his employment with the Respondent significantly contributed having regard to the matters to be taken into account specified in section 5B of the Act.

22. The Respondent nailed its flag to the masthead in the case by contending that the available evidence, or perhaps more accurately the weight of the available evidence, fails to establish a causal connection between the onset or development of the Applicant’s left shoulder condition and his employment with the Respondent. The argument being that the Applicant suffered from an underlying medical condition which led to the onset of the symptoms he complains of and that were the result of a disease process unrelated to his work with the Respondent. It relies upon the evidence of Associate Professor Steadman, that the Applicant’s left shoulder condition developed as a result of his non-compensable diabetes condition.

23. Fairly, the Respondent accepts that the medical evidence of Mr Pang and Dr Hooper could be considered supportive of the Applicant’s claim[20]. It was also conceded by counsel for the Respondent in his closing that if the Tribunal were to accept the Applicant’s evidence and his medical evidence, he is entitled to succeed. However, it contends that the Tribunal should prefer the opinion of Associate Professor Steadman.

    [20] This acknowledgement concerning Mr Pang is contained at paragraph 8 of the page headed “Contentions of the Respondent” in the Respondent's Statement of Facts, Issues and Contentions dated 23 July 2018. It was implicit from the closing submissions of the Respondent’s counsel concerning Dr Hooper.

24. There is a difference of opinion between Associate Professor Steadman on the one hand and Mr Pang and Dr Hooper on the other. Associate Professor Steadman concluded that there was only a gradual onset of symptoms that occurred to the Applicant whilst operating the high reach forklift. He concluded that the changes in the rotator cuff of the left shoulder, in the background of an absence of injury, are degenerative. The cause of the condition suffered by the Applicant therefore was idiopathic meaning that it had no relationship to any event or, as in this case, injury. He concluded that it was a condition widely known with significant propensity in diabetic patients. The question is whether Associate Professor Steadman’s conclusion that there was an absence of injury in the relevant sense, was correct.

25. Mr Pang on the other hand referred to the Applicant’s history that he took which said there was a smarting pain. In cross-examination he was probed on the difference between a “twinge” and a “sharp shooting pain”, he stated that a twinge is a sharp pain that suddenly occurs. He robustly stated that he did not accept that there was a difference between the two. He said it is a sudden onset which was consistent with the pain described and experienced by the Applicant.

1. Mr Pang relied upon the description of the injury, albeit minor in form, being a small partial thickness tear that did initiate an inflammatory process leading to the adhesive capsulitis complained of by the Applicant.

2. Associate Professor Steadman stated that there was no history given to him by the Applicant about the type of forklift he used or, as he called it, the previous history of what he was operating. He only took a history of which hand was doing what, with the left hand controlling the wheel and the right one controlling the lever. He stated that he was trying to see if the Applicant was using his arms in a particular way in which they were going up or down. He did not assert that any instruction was given to him as to the cause. When one looks at the first report prepared by Associate Professor Steadman on 4 August 2017 he indicates that he was furnished with the claim for workers compensation and “Various medical certificates”.  The original Certificate of Capacity signed by Dr Pawar and the subsequent ones signed by Dr Batool refer to the left shoulder and neck strain due to repetitive strain injury. The second report prepared by Associate Professor Steadman on 16 March 2018 refers to a variety of medical certificates prepared by Dr Batool where the diagnosis of repetitive strain injury was referred to. Presumably, Associate Professor Steadman read these reports. It seems surprising that the topic of repetitive strain injury raised in those certificates was not addressed anywhere in those reports written by Associate Professor Steadman. He did not dismiss it as a cause.

3. Associate Professor Steadman would not concede at any time that there was any other possible explanation for the Applicant’s described and diagnosed condition other than his diabetes. He maintained this position even though he and the other experts called to give evidence acknowledged that accepted medical practice, not to mention medical literature accepted that a link between diabetes and capsulitis was in the order of approximately 10 per cent to 20 per cent and that the younger the person the less likely it is to occur. (Although, in fairness to him, he did robustly assert that in post-mortem examinations of 40-year-olds, frequently tears will be found). This reluctance on the part of Associate Professor Steadman to concede that there might have been any other cause of the Applicant’s diagnosed condition was in considerable contrast to the evidence of Mr Pang and Dr Hooper. They both readily conceded that the Applicant’s diabetic condition could have been a cause of his condition.  However, for the reasons explained, including their acceptance of the Applicant’s history of what occurred at his workplace both in terms of the repetitious use of the forklift steering wheel (particularly the Crown forklift) together with the events of 20 June 2017, Mr Pang and Dr Hooper considered it more likely than not that it was an injury caused by or aggravated by his work. Dr Hooper opined that the contention that the Applicant’s symptoms were related to his diabetes was conjectural. Mr Pang, as noted earlier, stated that although diabetes is a known risk factor he did not consider it the cause in this case. The Tribunal also accepts this contention.

4. The reports from Dr Pawar and Dr Batool produced on or about the time of the 20 June 2017 events, which refer to a repetitive strain diagnosis are consistent with the foundation for the report of Mr Pang and for that matter Dr Hooper. Not only was there these reports, but there was also the history provided by the Applicant to Mr Pang and Dr Hooper (not to mention Associate Professor Steadman) and his explanation of the sudden onset of pain in his left shoulder.

5. The Tribunal, as noted earlier, accepts the explanation of the Applicant as to what occurred on 20 June 2017 when it comes to the pain experienced in his left shoulder and neck. It accepts Mr Pang’s description that there is no difference between a twinge and sharp shooting pain. This is consistent with the Applicant’s explanation of the sudden onset of pain when he was carrying out his forklift duties on that day. The Tribunal considers that in cross-examination the Applicant was not seriously challenged about this version of the events. Given the findings about the Applicant’s evidence concerning the pain he experienced on 20 June 2017, the Tribunal cannot agree with Associate Professor Steadman’s conclusion expressed in his first report of 4 August 2017[21] that there was only a gradual onset of symptoms that occurred at 4:30PM whilst the Applicant was operating the high reach forklift. This conclusion is also inconsistent with the Incident/Investigation Report dated 20 June 2017 which records the onset of the “smarting pain in the rear of his left shoulder” and the subsequent stretches he undertook which led to: “a sharp radiating/shooting pain in the back of his left hand shoulder”.

   [21] Document T 33 of the T documents. In answer to the first question on page 92.

6. It should be recalled that the Incident/Investigation Report of 20 June 2017 was attached to the letter of instruction sent by the Claims Manager of the Respondent to Associate Professor Steadman on 19 July 2017[22]. The Claim for Workers’ Compensation, the Incident/Investigation Report and the relevant doctors’ certificates, including those of Drs Pawar and Batool, were also attached to the letter of instruction. Yet, as also observed earlier, this issue was not addressed in any of Associate Professor Steadman’s reports. Further, even though he was furnished with these documents that contained references in several places to the Applicant suffering left shoulder problems due to repetitive strain injury, the term and that it was claimed to be the cause of the Applicant’s injury was not addressed in any of his three reports.

   [22] Document T 17 of the T documents.

7. The Tribunal finds that the reports of Associate Professor Steadman lack a consideration of the repetitive nature of the Applicant’s work. Associate Professor Steadman did not probe the Applicant about the repetitive nature of his work when taking a patient history (notwithstanding that there were medical certificates and other documents before him that specifically referred to repetitive strain injury). Furthermore, he concluded that there was only a gradual onset of symptoms that occurred on 20 June 2017, the Tribunal finds otherwise, and he would not consider other causes as a possibility for the Applicant’s symptoms. It is for these reasons that the Tribunal prefers the conclusions of Mr Pang and Dr Hooper.

8. The Tribunal also prefers the evidence of Mr Pang and Dr Hooper because it is more consistent with the evidence before the Tribunal which acknowledged that accepted medical practice, not to mention medical literature accepted that a link between diabetes and capsulitis was in the order of approximately 10 per cent to 20 per cent and that the younger the person the less likely it is to occur. Therefore, the Applicants diabetes seems less probable to have been the cause of his condition, particularly when considered in the light of his explanation as to the events that occurred on 20 June 2017. Which explanation, as noted earlier, has been accepted by the Tribunal.

9. The Tribunal was referred to several authorities concerning the definition of “injury” within the meaning of section 5A of the Act. Reference was made to the decision of the High Court in Military Rehabilitation and Compensation Commission v May[23] which approved of the observations made by Gleeson CJ and Kirby J in Kennedy Cleaning Services Pty Limited v Petkoska[24] that something may qualify as an injury in the primary sense of the word if it can be described as a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state. French CJ, Kiefel, Nettle and Gordon JJ also observed that suddenness is not necessary for there to be an injury in the primary sense. They did however qualify this observation by recording that whilst an injury in the primary sense can arise and can be described in a variety of ways, it does not mean that suddenness as a concept is irrelevant.

   [23] (2016) 257 CLR 468, 480 at [45] to [47] per French CJ, Kiefel, Nettle and Gordon JJ.

   [24] (2000) 200 CLR 286, 300 at [39].

10. On the preponderance of evidence, relying upon both experts and the version of events given by the Applicant, the Tribunal finds that the Applicant did suffer an injury on 20 June 2017 within the meaning of section 5A of the Act. This injury was the tear described in the relevant reports (and depicted in the MRI of the Applicant) which initiated the inflammatory process resulting in the development of adhesive capsulitis. The Tribunal also accepts the conclusion of Dr Hooper (as well as Mr Pang) that the Applicant’s work did precipitate the symptoms observed, and the onset of such symptoms is consistent with the cause he described.

    DECISION

11. By reason of the foregoing matters, the Tribunal sets aside the reviewable decision of 7 September 2017 and in substitution decides that the Respondent is liable to pay compensation to the Applicant in respect of tears to the supraspinatus tendon and consequential adhesive capsulitis. Further, the Tribunal finds that the Respondent should pay the Applicant’s costs in accordance with section 67 of the Act.

99.      

100.    I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member

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

Associate

Dated: 19 December 2018

Date of hearing:	4-6 September 2018
Counsel for the Applicant:	Ms Kim Bradey
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Respondent:	Mr Charles Clark
Solicitors for the Respondent:	Moray & Agnew Lawyers