In Matter 2021/1550 the decision under review is affirmed.
In Matter 2021/1551 the decision under review is affirmed.
In Matter 2021/1552 the decision under review is affirmed.
In Matter 2022/0495:
1. the decision under review is set aside and the matter remitted to the Respondent for further consideration with a direction that the Applicant continues to suffer from the effects of the accepted Injury, namely rotator cuff (supraspinatus and infraspinatus) tendinopathy and a partial thickness tear of the supraspinatus with a superior labral tear, during the period from 1 December 2021 to the present date and the accepted Injury continues to result in a reasonable necessity for medical treatment entitling the Applicant to compensation under s 16 and an entitlement to compensation for incapacity under s 19 of the Safety, Rehabilitation and Compensation Act 1988; and
2. the Respondent is ordered to pay the Applicant's costs and disbursements in respect of Matter 2022/0495 in an amount agreed between the parties or, in default of agreement, as assessed by the Registrar or an officer of the Tribunal.
WORKER COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 – left shoulder rotator cuff tendinosis and subacromial bursitis – determination of earning capacity – determination to undertake rehabilitation programme – cease liability to compensate under ss 16 and 19 – recovery from injury – cease effects decision set aside and matter remitted – other decisions affirmed.
This matter concerns applications for the review of four separate decisions of the Respondent under ss 16, 19 and 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) relating to the Applicant’s rehabilitation and recovery from an accepted compensable injury of the left shoulder under s 14 of the Act.
BACKGROUND
The Respondent is a licensed corporation being the holder of a licence that is in force under Part VIII of the SRC Act.[1]
[1] Section 4(10A) of the SRC Act provides that for the purposes of the application of the Act, in relation to an employee employed by a licensed corporation such as the Respondent, a reference to Comcare in the Act is, unless the contrary intention appears, a reference to the licensed corporation.
At all material times the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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This matter concerned an appeal by the Applicant against a decision by a Reconsideration Officer to affirm a determination that the Australian Postal Corporation was no longer liable to pay compensation under sections 16 and 19 of the *Safety, Rehabilitation and Compensation Act 1988* (SRC Act) for the Applicant's left shoulder rotator cuff tendinosis and subacromial bursitis. The Reconsideration Officer had concluded that the Applicant's symptoms were due to a constitutional condition and that any work-related condition had resolved.
The primary legal issues before the Tribunal were whether the Applicant continued to suffer from the effects of the accepted injury during the relevant period, and if so, whether this continued to necessitate medical treatment or result in an entitlement to compensation for incapacity under the SRC Act. The Tribunal was also required to consider whether the Applicant's entitlement to compensation for incapacity was affected by him reaching "pension age" under the SRC Act.
The Tribunal considered the Applicant's evidence regarding the circumstances of his injury, his subsequent treatment, and the ongoing nature and severity of his shoulder pain, particularly in relation to his work duties. It also had regard to the medical opinions and agreed facts presented. The Tribunal found that the Reconsideration Officer's decision to cease liability for compensation was not supported by the evidence, particularly concerning the ongoing effects of the accepted injury and the reasonable necessity for medical treatment. The Tribunal set aside the cease effects decision and remitted the matter for redetermination. The Tribunal affirmed other decisions not subject to review in this specific matter.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The parties confirmed certain agreed facts in their respective submissions to the Tribunal which are set out in Appendix B – Statement of Agreed Facts.[10][10] In this decision, a reference to the agreed facts in Appendix B is identified by the prefix ASF and the paragraph number.Applicant’s Evidence The Applicant affirmed his written statement of 2 August 2022[11] and gave oral evidence as follows.[11] Exhibit A1.(a)Prior to the Injury, the Applicant worked as a truck driver. He worked a rotating roster of 36.75 hours per week plus overtime and often worked on Saturdays and Sundays. The majority of his duties was driving. (b)The Applicant described the circumstances leading to the Injury. He said that the truck he was driving had a curtain that ran along the tray to keep stock inside. The curtain was held in place by a rod. To unload the truck, the Applicant needed to remove the curtain. He did this by grasping the rod and pulling the curtain aside. He said that the rods often became stuck and he had to apply considerable force at an awkward angle to open the curtain.(c)He said the Injury occurred when he reached up with his left arm to manoeuvre the rod and as he lifted the rod, he wrenched his left arm and felt a sharp stabbing pain in his left shoulder, and down his left arm.[12](d)The Applicant said he was initially referred by the Respondent to Sonic HealthPlus, where he was treated by Dr Yan Wong, General Practitioner. He subsequently had regular physiotherapy involving strengthening exercises and was place on restricted duties of no driving, avoiding above-shoulder work, and working a maximum of 7.35 hours per day.(e)The Applicant said that his left shoulder condition improved and after six months it was around 50% better, although still painful with movement. On or about 16 October 2018, Dr Wong recommended he work a standard 7.5 hours per day to allow for a proper recovery and, on 13 November 2018, Dr Wong advised that he could trial a return to driving starting at 2 hours per day. He said that by December 2018 he had increased his driving to 3 hours per day.(f)On 1 May 2019 his daily work hours were increased to 8.35 hours. The Applicant gave evidence that he was incapable of working these extended hours, and he was only able to drive for up to 3 hours per day without developing significant pain in his left shoulder. (g)At about this time the Respondent ceased covering the cost of physiotherapy treatment and the Applicant stated that he felt his recovery then stagnated and he continued to suffer left shoulder symptoms. The Applicant gave evidence that he had found physiotherapy beneficial but could not afford to continue with it privately. He told the Tribunal that although he continued with his home exercises, over the next two to three months his left shoulder pain worsened. (h)In around July 2020, the Applicant was referred for an intensive three-month exercise programme, with Mr James Davis, Physiotherapist and Exercise Physiologist. His daily work hours were decreased to 7.35 hours per day during this period. The Applicant said the exercises aggravated the pain in his left shoulder and he ceased the program towards the end of September 2020 due to pain. (i)The Applicant described his left shoulder symptoms to the Tribunal. He gave evidence that he continued to suffer symptoms after the intensive exercise program and these symptoms were ongoing, including at the time of giving evidence. He told the Tribunal that he experienced almost daily episodes of aggravations or “flare-ups” of severe pain in his left shoulder. He said these episodes were triggered by using his left arm, especially for reaching out or upwards. He said driving the truck at work, especially as he approached the three-hour mark, aggravated his symptoms. He described the pain during these episodes as unbearable, and said it felt like he could not get any relief. He said the episodes lasted for some time, sometimes one hour, sometimes four hours, sometimes until he went to sleep. He described the pain during these episodes as being too severe for him to be able to do other duties. He would often need to just rest and cradle his left arm. He had been asked to do other duties, such as filing, but found this aggravated his symptoms. He could not rest his left shoulder while at work, and when he got home, he would need to lie in his recliner chair, take painkillers and rest. Sometimes he needed to go straight to bed, because he was in too much pain to do anything else. He woke up several times during the night with shoulder pain. He felt like his left shoulder was worse than it had been in 2019, when he had been receiving physiotherapy and was on restricted duties. (j)The Applicant gave evidence that on the advice of Dr Cenap, his General Practitioner, he had not worked more than five hours per day including three hours of driving since 9 March 2021. He told the Tribunal that, while he continued to experience episodes of left shoulder pain at work, he had been able to cope with work on these restrictions.(k)The Applicant gave evidence that he saw Mr Christopher Pullen, Orthopaedic Surgeon, on 18 November 2020. Mr Pullen diagnosed the Applicant as suffering from left shoulder impingement syndrome and rotator cuff tendinopathy or tear. He recommended a treatment plan, involving a further two months of physiotherapy, before returning. The Applicant told the Tribunal that he wanted to undertake the treatment plan recommended by his treating surgeon, which included a trial of physiotherapy, followed by an orthopaedic review where, depending on progress, alternative options including surgery would be considered.[12] Exhibit A1 at [14].Applicant’s Credibility
Decision
Reasons for decision
The Tribunal has also had regard to the Agreed Statement of Facts, the T Documents and the Exhibits tendered in the proceedings.MATTER 2022/0495 – THE CEASE EFFECTS DECISIONDecision The decision by the Reconsideration Officer subject to review in Matter 2022/0495 was:The issue currently before me is whether or not you continue to suffer from your “left shoulder rotator cuff tendinosis and subacromial bursitis”, and if such condition continues to be significantly contributed by your employment with Australia Post. I have carefully reviewed all available evidence in respect of this matter… …I consider your symptoms are due to the constitutional condition affecting your left shoulder, and that any work-related condition has resolved.Accordingly, I have therefore decided to AFFIRM the determination dated 1 December 2021, and find that Australia Post Group is not presently liable to pay compensation under sections 16 and 19 of the SRC Act for your “left shoulder rotator cuff tendinosis and subacromial bursitis” as at 2 December 2021 and at present.[35][35] T27 at pp.113-116. In making the determination of 1 December 2021, the delegate stated that, taking into consideration the specialist medical opinion of Mr Ghan, the current medical evidence on file supports that all accepted work related conditions have now resolved and the current symptoms are the cause of non work issues.[36][36] T22 at p.101.Issues for Determination The issues for determination in relation to Matter 2022/0495 are:(a)Whether the Applicant continues to suffer from the effects of the accepted injury during the period from 1 December 2021 to the present date and presently (“relevant period”); and(b)If so, then whether: (i)the accepted injury continues to result in a reasonable necessity for medical treatment during the relevant period;(ii)the accepted injury continues to result in an entitlement to compensation for incapacity under section 19 of the SRC Act during the relevant period; and(iii)the Applicant has any entitlement to compensation for incapacity under section 19 of the SRC Act during the period on and from 12 August 2022, when the Applicant reached his “pension age” of 66.5 years for the purposes of the SRC Act. Parties’ SubmissionsRespondent The Respondent contends that the Applicant does not continue to suffer from the effects of the accepted injury during the period from 1 December 2021 to the present date (“relevant period”) and does not have an entitlement to compensation for medical treatment under s 16 of the SRC Act or an entitlement to any compensation, including compensation for incapacity under s 19 of the SRC Act, during the relevant period. In the alternative, the Respondent contends that:(a)if the Applicant continues to suffer from the effects of the accepted injury during the relevant period (which is specifically denied), then the accepted injury no longer results in an incapacity for work and no longer results in a reasonable necessity for medical treatment during the relevant period; or (b)if the accepted injury continued to result in an incapacity for work during the relevant period (which is specifically denied), then the Applicant had an ability to earn in suitable employment an amount equal to his normal pre-injury earnings based upon the restricted/modified duties offered by the Respondent during the relevant period; or(c)if the Applicant has an entitlement to compensation for incapacity under section 19 of the SRC Act during the relevant period (which is specifically denied), on 12 August 2022 the Applicant reached his “pension age” of 66.5 years of age within the meaning of the SRC Act and is precluded from any entitlement to compensation for incapacity under the SRC Act covering the period on and from 12 August 2022 by virtue of the operation of sub-section 23(1) of the SRC Act. Applicant
