Pratt and Teekay Shipping Australia Pty Ltd
[2012] AATA 22
•17 January 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 22
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0746
GENERAL ADMINISTRATIVE DIVISION ) Re Brian Pratt Applicant
And
Teekay Shipping Australia Pty Ltd
Respondent
DECISION
Tribunal Senior Member A K Britton and Dr I Alexander, Member Date17 January 2012
PlaceSydney
Decision The decision under review is affirmed. .................[sgd]..................
Senior Member A K Britton
CATCHWORDS
WORKERS’ COMPENSATION – entitlement to compensation – whether applicant suffered permanent impairment – decision under review affirmed
Seafarers Rehabilitation and Compensation Act 1992 (Cth) — ss 3, 39, 41
REASONS FOR DECISION
17 January 2012 Senior Member A K Britton
Dr I Alexander, Member
1. Mr Brian Pratt injured his left shoulder at work in March 2005. While his employer, Teekay Shipping Australia Pty Ltd, has accepted liability for that injury under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Act), it decided to refuse his claim for compensation for permanent impairment and non-economic loss. Mr Pratt now seeks review of that decision.
2. The only issue in dispute is whether Mr Pratt suffers a permanent impairment as a result of his shoulder injury. Mr Pratt contends that he suffers a permanent impairment of ten per cent. Teekay contends that he has no permanent impairment. Mr Pratt’s entitlement to compensation for permanent impairment and non-economic loss turns on whether he has a permanent impairment of at least 10 per cent (ss 39 and 41 of the Act).
Entitlement to compensation for permanent impairment
3. Section 39 of the Act provides that compensation is payable to an employee where an injury has resulted in a “permanent impairment” of at least 10 per cent (ss 39(1) and 39(7)). “Permanent” is defined by s 3 of the Act to mean “likely to continue indefinitely”. “Impairment’ is defined by the same section to mean the loss, the loss of the use, or the damage or malfunction, of any part of the body or of the whole or part of any bodily system or function.
4. Section 39(2) states that for the purpose of determining whether an impairment is permanent, the decision-maker must have regard to the following matters:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment;
(d) any other relevant matters.
5. In determining the amount (if any) of compensation payable, the decision-maker must determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide (s 39(5)). The “approved Guide” is the Guide to the Assessment of the Degree of Permanent Impairment, 2nd edition 2006 (the Guide) (s 3). The degree of permanent impairment must be expressed as a percentage (s 39(6)).
6. Chapter 9.11 of the Guide provides for assessment on the basis of impairment to the range of movement of the shoulder. It provides:
Table 9.11.1a, Table 9.11.1b and Table 9.11.1c (see pages 98-99) assess impairments to range of motion of the shoulders, including ankylosis.
Loss of range of motion in each functional range is measured from the neutral position. The range of motion is expressed as the two achievable limits of active motion in each direction through the normal range of motion. It is possible that the only motion that can be achieved is between two points on one side of the neutral position.
The WPI rating for restriction of motion in one direction is determined according to the active motion than can be achieved in that direction. It is then added to the WPI rating for the active motion in the reverse direction.
Background
7. Mr Pratt was employed as chief caterer by Teekay at the time of the subject injury, and continues to hold that position. He works full-time 28 days on/28 days off.
8. The subject injury occurred when Mr Pratt slipped while climbing stairs aboard the “Dampier Spirit” – a floating storage and offloading unit located off the coast of Western Australia. Six months later, he underwent a left arthroscopic shoulder capsulotomy. The treating surgeon, Dr John Morton, advised Mr Pratt’s GP that immediately after that procedure a full range of movement of Mr Pratt’s left shoulder was “easily achieved”. In an update report prepared three weeks after surgery, Dr Morton wrote that Mr Pratt had made “very satisfactory progress”; had “excellent range of movement” and in his opinion was fit to return to normal duties. In January 2006, Dr Morton wrote again to the GP and advised of a decrease in the range of movement of Mr Pratt’s shoulder and that he was complaining of “significant nocturnal discomfort”. In January 2006, Dr Morton injected Mr Pratt’s shoulder with Cortisone and local anaesthetic, which resulted in relief of symptoms but only for a brief period. In March 2006, Dr Morton wrote to Mr Pratt’s GP advising that “low grade impingement/capsulitic symptoms” had returned with “external rotation 45°, full flexion 145° and internal rotation to L3”. Dr Morton advised that nonetheless, in his opinion, Mr Pratt was able to continue with normal duties at sea.
9. In a letter to the GP dated 12 April 2006, Dr Morton noted that the results of an MRI scan of the left shoulder taken that day were “largely within normal limits”. He wrote that Mr Pratt’s symptoms were due to a “low grade recurrent adhesive capsulitis”. In his opinion, treatment options included a repeat cortisone injection, repeat arthroscopic capsulotomy or a “wait and see” approach. In his opinion, the best course was to simply wait for a spontaneous resolution of the symptoms which he thought should occur within six to 18 months.
10. Mr Pratt has not seen Dr Morton or consulted any other practitioner about his shoulder since April 2006. On his account, after Dr Morton advised that there was a risk that further surgery might not be successful, he decided to “just keep going”.
11. Mr Pratt has worked full-time without any formal restrictions since returning to work in 2006. He claims while at sea he “gets by” using his right arm to climb stairs and ladders and to put things away above shoulder height. He says that sometimes he is assisted by other members of the crew to load and unload stores. He says on occasion he has to take breaks at work on account of his shoulder.
12. Mr Pratt claims he cannot elevate his left arm above shoulder height without pain and finds it difficult to put his arms behind his back. On his account, since injury, he has consistently been troubled by his shoulder and occasionally uses medication and deep heat to control the pain. He claims that before the injury he used to lift weights but no longer does so and while he continues to ride a Harley Davidson motor bike, he has been forced to adjust the handlebars on a number of occasions to find a comfortable position.
13. In June 2009, Mr Pratt was hospitalised following a motor bike accident and diagnosed with a dislocated left shoulder. The shoulder dislocation was “reduced” that is, his upper arm bone was relocated into its shoulder socket. In a letter to Mr Pratt’s GP, the RMO made no mention of any pre-existing shoulder condition and described Mr Pratt as being “usually well”. In cross-examination, Mr Pratt was unable to offer an explanation for the absence of any reference to a pre-existing shoulder condition in that letter or the hospital’s notes and pointed out that he was “doped up and sore” when he was hospitalised. According to Mr Pratt, when he returned to work 10 weeks after the accident, his shoulder had returned to its pre-accident condition.
Assessment of permanent impairment
14. For the purpose of these proceedings, Mr Pratt was assessed by surgeons Drs William Patrick and Peter Burke. Each examined Mr Pratt on two occasions after the injury — Dr Patrick in July 2008 and September 2011 and Dr Burke in October 2009 and Oct 2010. Each prepared reports of their respective assessments and gave evidence concurrently.
15. Each expert assessed Mr Pratt’s shoulders under Tables 9.11.1a, 9.11.1b and 9.11.1c of the Guide. This involves the measurement of six “active” shoulder movements: flexion, extension, adduction, abduction, internal rotation and external rotation. Each claimed to have employed the same methodology in carrying out their respective assessments. (We will return to consider an issue raised by Mr Pratt about the 2010 testing conducted by Dr Burke). Despite purportedly using the same methodology, the experts reached divergent findings. Dr Patrick found the range of movement of Mr Pratt’s left shoulder to be restricted; Dr Burke did not.
16. According to Dr Patrick, on both occasions he assessed Mr Pratt the movement of his left shoulder was “considerably restricted”. His findings on both occasions were almost identical. He provided an assessment of ten per cent whole impairment. Dr Burke on the other hand found no restrictions and no rateable impairment on both occasions he assessed Mr Pratt’s shoulder.
17. In a report dated 20 July 2009 (which related to an assessment conducted 12 months earlier), Dr Patrick wrote that Mr Pratt reported the following symptoms:
·considerable sleep disturbance and difficulty lying on his left shoulder;
·difficulty exercising;
·considerable difficulty using the left arm outstretched or overhead;
·difficulty with heavy lifting and carrying, using the left arm;
·difficulty driving a car — “even having his left arm on the steering wheel causes considerable discomfort”.
18. There was no material difference in the “present[ing] symptoms” listed by Dr Patrick in his most recent report.
19. When seen by Dr Burke about four months after the bike accident, Mr Pratt reported that his shoulder had returned to its “former painful state”. In a report dated 12 October 2009 Dr Burke wrote that Mr Pratt reported:
·pain in the left shoulder several times a day, usually when lifting or bending;
·that he was able to work satisfactorily with his injury;
·that his left shoulder movements were normal but not without pain.
20. In a report dated 19 October 2010, Dr Burke wrote that Mr Pratt had told him that:
·he finds it uncomfortable when sleeping on his left side;
·he noticed about six months ago “quite sharp pain” at the acromio-clavicular [shoulder] joint when reaching to pick things up and that this now occurs weekly and lasts for between one and three minutes;
·he can move both shoulders through “full range of movement” by putting up with pain in the left shoulder;
·he had no other symptoms.
21. Mr Pratt denied telling Dr Burke that his left shoulder movements were normal. He said he had told Dr Patrick about the “day-to-day” problems he faced with his left arm. Mr Pratt claims that at no time during 2010 was he able to fully elevate his left arm, as claimed by Dr Burke.
22. Mr Pratt testified that throughout the period he has been assessed by Drs Burke and Patrick (2008 to present), the functional capacity of his left arm and shoulder has been largely unchanged, apart from the brief period following the 2009 motor bike accident.
Diagnosis
23. Drs Patrick and Burke found it difficult to reach a confident diagnosis.
24. While Dr Patrick thought that some residual or recurrent post-traumatic capsulitis was the most likely diagnosis he said he was unable to be “dogmatic”. He conceded that there was no objective evidence to support his diagnosis apart from the evidence of limitation of passive and active movement demonstrated by Mr Pratt on examination.
25. Dr Burke on the other hand thought it unlikely that Mr Pratt suffered from adhesive capsulitis, noting that on each occasion he examined Mr Pratt there was no evidence of muscle wasting, crepitus or signs of impingement and, furthermore he was able to demonstrate a full range of shoulder movement. In his most recent report, he recorded that physical examination indicated that Mr Pratt is engaged in vigorous and equal use of both upper limbs. Dr Burke expressed some reservations about Dr Morton’s diagnosis, but pointed out that the “usual course” is for adhesive capsulitis to resolve through treatment and everyday movement. While Dr Patrick agreed that capsulitis is generally accompanied by muscle wasting, he thought a possible explanation for there being no evidence of such in Mr Pratt’s case was his continued use of his left arm and shoulder since the injury. He also stated that if the rotator cuff mechanism was intact, or, as in Mr Pratt’s case, the person was overweight, muscle wasting might not be apparent on examination.
26. Both experts agreed that if capsulitis was present, it would generally be revealed by an MRI. The only MRI taken of Mr Pratt’s shoulder was that requested by Dr Morton in 2006. The report of that MRI stated:
MR LEFT SHOULDER
History: Recurrent capsulitis ? cuff tear.
Technique: MR was performed following the intra-articular administration of Gadolinium.
Findings: The rotator cuff tendons and long head of the biceps tendon appear normal. No abnormality is seen at the glenoid labrum. No soft tissue mass or muscle atrophy is identified. There is no marrow signal abnormality.
CONCLUSION: No significant internal derangement identified.
27. Dr Patrick thought the quality of that report to be poor. Dr Burke agreed, but stated that he had inspected the film and was unable to detect evidence of capsulitis or any other abnormality.
Method of testing range of movement
28. Mr Pratt claims during the 2010 assessment, on measuring abduction, Dr Burke gently moved his elbow upwards by about half an inch. The experts agree that an assessment under the relevant tables of Chapter 9.11 of the Guides requires the examiner to test the range of active motion i.e. movement unassisted by the examiner. Both agree that it would be most inappropriate for an examiner to intervene during testing in the manner as described by Mr Pratt.
29. Dr Burke vehemently denies the allegation made by Mr Pratt. He points out that he is an experienced and qualified practitioner and fully aware that an assessment of shoulder movement under the Guides requires the measurement of the range of active (unassisted movement) not passive (movement assisted by for example the examiner, examinee or gravity) motion. He stated that during the 2010 assessment, Mr Pratt’s movements were not only consistent and spontaneous but “enthusiastic” and there would have been no need to intervene.
30. Apart from the elbow allegation, Mr Pratt makes no other criticism of the testing conducted by Dr Burke during the 2010 assessment. He makes no complaint about the 2009 assessment.
Findings and conclusions
31. The picture presented by Mr Pratt’s shoulder is a complex one. Neither expert is fully confident of their diagnosis. While Dr Patrick nominates adhesive capsulitis as the most likely diagnosis, he concedes that apart from the evidence of restricted movement there is no objective evidence to support his diagnosis. While Dr Burke believes that Mr Pratt does not suffer from adhesive capsulitis, he accepts that his report of symptoms, which he does not dispute, may be attributable to some other underlying condition.
32. The task of determining whether the subject injury has resulted in permanent impairment as measured by the Guide is further complicated by the divergent results on testing. Since the injury the range of movement of Mr Pratt’s shoulder has been tested on four occasions employing the same methodology, but divergent results have been produced. Dr Patrick found significant restrictions on testing in 2008 and 2011. Dr Burke on the other hand found no such restrictions in 2009 and 2010. While we think it unlikely that Dr Burke intervened in the 2010 test in the manner as alleged, even if Mr Pratt’s claim is accepted, it would have no bearing on the reliability of the 2009 assessment and at best invalidates the results of one of the six movements (abduction) tested in 2010.
33. On what is before us, we could not be satisfied on balance that Mr Pratt suffers from adhesive capsulitis. As conceded by Dr Patrick, the only objective evidence to support that diagnosis is the results on testing in 2008 and 2011 which were not repeated on testing by Dr Burke in 2009 and 2010. Taken together with the lack of evidence of capsulitis on the 2006 MRI, this leads us to prefer the opinion of Dr Burke on this point.
34. Section 39(2) of the Act instructs that in determining whether an impairment is permanent we must have regard to the following factors: (a) the duration of the impairment; (b) the likelihood of improvement in the employee's condition; (c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; (d) any other relevant matters.
35. While the lack of a firm diagnosis is not fatal to Mr Pratt’s claim or a prerequisite to a finding of permanent impairment, its absence makes difficult the task of determining the likelihood of an improvement in Mr Pratt’s condition or whether all reasonable rehabilitative treatment has been undertaken. Even if assumed that as a result of the injury Mr Pratt suffers from some as yet undiagnosed condition and that the restrictions in movements demonstrated on testing were the result of that condition we could be not satisfied that the impairment is permanent given the uneven results on testing. On what is before us, we are unable to conclude that Mr Pratt suffers from a permanent impairment and therefore affirm the decision under review.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Britton and Dr I Alexander, Member
Signed: ...........................[sgd]..................................
Associate to Senior Member A K BrittonDate/s of Hearing 21 November 2011
Date of Decision 17 January 2012
Counsel for the Applicant Mr P Menary
Solicitor for the Applicant Mr D Trainor, W G McNally Jones Staff Lawyers
Counsel for the Respondent Mr J Sharpe
Solicitor for the Respondent Mr P Leslie, Holman, Fenwick and Willan
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