Quick and Australian Postal Corporation (Compensation) - [2023] AATA 2013

Quick and Australian Postal Corporation (Compensation) [2023] AATA 2013 (7 July 2023)
ReviewNumber: 2021/1550; 2021/1551; 2021/1552; 2022/0495
Division:GENERAL DIVISION
File Numbers: 2021/1550; 2021/1551; 2021/1552; 2022/0495
Re:David Quick
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Member R West
Date:7 July 2023
Place:Melbourne

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.

.......................[SGD].................................................
Member R West
Catchwords
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.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Abrahams v Comcare [2006] 93 ALD 147
Australian Postal Corporation v Nunez [2014] FCA 1095
Australian Postal Corporation v Pascoe [2003] FCA 390
Comcare v Muir [2016] FCA 346
Lees v Comcare [1999] FCA 753
Pascoe v Australian Postal Corporation [2004] FCAFC 4
Solman v Comcare [2018] AATA 6
Telstra Corporation Limited v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
Member R West
7 July 2023

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 Applicant was employed as a Postal Transport Officer/truck driver by the Respondent.
On 19 March 2018 the Applicant sustained an injury to his left shoulder while attempting to manoeuvre the curtain pole on the side of his truck (Injury).
On 3 April 2018 the Applicant lodged a claim[2] under the SRC Act for compensation and rehabilitation in respect of the Injury (Claim).
[2] PT12 at p.52. In this decision, T Documents for Matters 2021/1550-1552 are identified as ‘PT’ documents and T Documents in Matter 2022/0495 are identified as ‘T’ documents.
On 3 May 2018 the Respondent accepted liability pursuant to s 14 of the SRC Act for an injury of Left Shoulder Rotator Cuff Tendinosis and Subacromial Bursitis[3] (Injury).
[3] PT16 at p.69.
On 16 November 2020 the Respondent produced a Rehabilitation Upgrade Program which provided for the Applicant to work 8.35 hours per day, 5 days per week, including up to 3 hours of driving per day.
On 18 November 2020 a delegate of the Respondent determined that the Applicant was capable of undertaking the Rehabilitation Upgrade Program dated 16 November 2020 which provided for him to work 8.35 hours per day, 5 days per week, including up to 3 hours of driving per day, and on 1 March 2021 a Reconsideration Officer affirmed the determination.
On 20 November 2020 a delegate of the Respondent determined the Applicant to have an earning capacity equivalent to the salary rate payable for performing duties as outlined in the Rehabilitation Upgrade Program, and on 1 March 2021 a Reconsideration Officer affirmed the determination.
On 8 December 2020 a delegate of the Respondent determined the Applicant to have an earning capacity equivalent to the salary rate payable for performing duties as outlined in a Rehabilitation Upgrade Program dated 27 November 2020, which provided for the Applicant to work 9.21 hours per day, 5 days per week, including up to 3 hours of driving per day, and on 1 March 2021 a Reconsideration Officer affirmed the determination.
On 1 December 2021 a delegate of the Respondent determined that the Respondent was no longer liable to compensate the Applicant pursuant to ss 16 and 19 of the SRC Act, for his reasonable medical expenses and incapacity payments respectively, in relation to the Injury, and on 18 January 2022 a Reconsideration Officer affirmed the determination.
APPLICATIONS FOR REVIEW
Matter 2021/1550
By application lodged with the Tribunal on 16 March 2021,[4] the Applicant seeks review of the decision of a delegate of the Respondent dated 1 March 2021 affirming a primary determination dated 20 November 2020 determining the Applicant to have an earning capacity equivalent to the salary rate payable for performing duties as outlined in Rehabilitation Upgrade Programs dated 2 and 18 November 2020, which provided for him to work 8.35 hours per day, 5 days per week, including up to 3 hours of driving per day.
Matter 2021/1551
By application lodged with the Tribunal on 16 March 2021,[5] the Applicant seeks review of the decision of a delegate of the Respondent dated 1 March 2021 affirming a primary determination dated 8 December 2020 determining the Applicant to have an earning capacity equivalent to the salary rate payable for performing duties as outlined in Rehabilitation Upgrade Program dated 27 November 2020, which provided for The Applicant to work 9.21 hours per day, 5 days per week, including up to 3 hours of driving per day.
[4] PT1 at p.009.
[5] PT2 at p.022.
Matter 2021/1552
By application lodged with the Tribunal on 16 March 2021,[6] the Applicant seeks review of the decision of a delegate of the Respondent dated 1 March 2021 affirming a primary determination dated 18 November 2020 that the Applicant was capable of undertaking a Rehabilitation Upgrade Program dated 16 November 2020, which provided for him to work 8.35 hours per day, 5 days per week, including up to 3 hours of driving per day.
[6] PT3 at p.035.
Matter 2022/0495
By application lodged with the Tribunal on 20 January 2022,[7] the Applicant seeks review of the decision of a delegate of the Respondent dated 18 January 2022 affirming a primary determination dated 1 December 2021 that the Respondent was no longer liable to compensate the Applicant pursuant to ss 16 and 19 of the SRC Act, for his reasonable medical expenses and incapacity payments respectively, in relation to the Injury.
[7] T2 at p.006.
HEARING
A hearing in relation to the applications for review in Matters 2021/1550, 2021/1551, 2021/1552 and 2022/0495 was held on 6, 7, 8 and 9 February 2023.[8] The Applicant was represented by Mr Shane Dawson of counsel. The Respondent was represented by Mr Roy Seit of counsel.
[8] The parties filed written submissions subsequent to the hearing.
In conducting the review, the Tribunal has had regard to:
(a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act in relation to each of the matters (T Documents);[9]
[9] In this decision, T Documents for Matters 2021/1550-1552 are identified as ‘PT’ documents and T Documents in Matter 2022/0495 are identified as ‘T’ documents.
(b)documents tendered by the Applicant and listed in Appendix A;
(c)documents tendered by the Respondent and listed in Appendix A; and
(d)the oral evidence of:
(i)the Applicant;
(ii)Mr Ash Moaveni, orthopaedic surgeon;
(iii)Mr Christopher Pullen, orthopaedic surgeon;
(iv)Dr Umit Cenap, general practitioner;
(v)Dr Simon Journeaux, orthopaedic surgeon;
(vi)Dr Caaren Chin, general practitioner;
(vii)Dr Mary Obele, rehabilitation physician; and
(viii)Mr Francis Ghan, orthopaedic surgeon.
EVIDENCE
Agreed Facts
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
The Applicant was cross-examined extensively. The Respondent contends that the Applicant’s evidence regarding the effect of his Injury should be treated with a great deal of caution and, in support, refers to the observations regarding his evidence which follow:
(a)The Applicant gave evidence that his wife had a longstanding abdominal complaint described as diverticulitis and hernia dating back 10 years which was a current and ongoing problem. He said his wife had to be careful with what she does, how she lifts, the weights she lifts and how she bends as she could end up with another hernia rupture as her hernia was described as being like swiss cheese. The Applicant in his oral evidence acknowledged that because of his wife’s illness, he was required to perform more of the heavier household tasks. He denied that this was the reason he could not increase his hours of work but rather it was the pain associated with working increased hours that prevented him from doing so.
(b)The Respondent pointed to earlier recorded histories[13] which suggest that the Applicants reason for not increasing his hours of work is due to his home commitments to look after his wife and fatigue.
[13] PT13 at pp.56-64; PT50 at p.192; PT65 at p.232; PT117 at pp.350-368 and PT57 at p.211.
(c)The Applicant gave evidence that I used to restore cars and travel internationally. My left shoulder means I can no longer do these activities like I used to.[14]
[14] Exhibit A1 at [67].
(d)During cross-examination, the Applicant claimed that prior to his left shoulder injury he would travel overseas maybe 2 to 3 times per year and sometimes up to 4 times per year. When asked if he had travelled overseas since sustaining his left shoulder injury the Applicant conceded he had travelled on one occasion only to California but could not recall when that trip occurred and said it may even have been before he sustained his left shoulder injury. The Applicant conceded that since early 2020 the actual reason he was unable to travel overseas was due to the COVID pandemic restrictions on overseas travel. The contents of the clinical notes from the Sonic HealthPlus Clinic were put to the Applicant in chronological sequence which contained reports from the Applicant of trips between 2018 to early 2020:
(i)A 4-week holiday in the USA in October/November 2018;
(ii)A 3-week cruise holiday in February/March 2019;
(iii)A 2-week holiday in August 2019 (destination not identified);
(iv)A 2-week holiday in the USA in January 2020; and
(v)A holiday in New Zealand during February/March 2020 (duration not specified).
(e)On each occasion when details of a specific overseas trip were put to the Applicant, he conceded that he had travelled overseas and was able to recall details of where he went and with whom he travelled but he continued to maintain that he could not recall having travelled overseas on any further occasions.
(f)The Applicant was also questioned regarding his activity of car restoration. The Applicant conceded that he currently owns four American muscle cars which he had sourced in the United States and shipped back to Australia over the years. He claimed they were unregistered, undriveable and in need of restoration. When asked whether he had undertaken any work on these cars since sustaining his left shoulder injury he conceded I might have dabbled with them but nothing major and when asked what nothing “major” meant he gave the example of installing an engine.
(g)When pressed about additional employment or self-employment, the Applicant conceded the existence of a Cadillac Limousine business operating from his residence but said it was his wife’s business. The Applicant said that prior to his left shoulder injury he thought he drove the Cadillac once every fortnight to month but stated he was unsure about the frequency and claimed that since his injury he had not driven the Cadillac but may have moved it. The Applicant claimed that following his injury, the limousine was driven by his wife (despite her illness), his son, his daughter and a friend of the family drove or used to. This evidence was however contradicted by the history recorded from the Applicant by Dr Mary Obele in her report dated 26 May 2020[15] who, after mentioning the Applicant’s employment with the Respondent, went on to record that “He does not do any other paid or voluntary work except for occasional paid limousine driving for four hours on the weekends and an occasional one-hour job during the week. He does not do any heavy lifting or physically strenuous work with his limousine driving.” This history was put to the Applicant who said it was correct in so far as it described his involvement in this activity prior to the left shoulder injury but not after, despite the history being recorded in the current sense.
[15] PT117 at pp.350-368.
The Tribunal notes that there are inconsistencies in the evidence on these matters and that the Applicant was less than fully candid in responding to these questions. However, the inconsistencies regarding his overseas travel and car restoration do not directly call into question his evidence regarding his level of incapacity or treatment. It is possible that the Applicant’s wife’s health may have played some role in his reluctance to increase his hours of work. Even accepting that the limousine driving described by Dr Obele occurred after the Applicant sustained the Injury, it does not, of itself, contradict the evidence of the limitations on his work capacity. If he occasionally worked for four hours on a weekend, it could well have been within the restrictions of 5 hours per day and no more than 3 hours driving included in Dr Cenap’s certificates.

Notwithstanding the inconsistencies pointed out by the Respondent, the Tribunal accepts that the Applicant was truthful in claiming that he suffered from symptoms of the sort he described. The Tribunal would need more than an inference of the kind raised by the Respondent’s questioning before concluding that the Applicant’s claimed symptoms are not genuine.
Nevertheless, there is a question regarding the severity of the symptoms and level of incapacity resulting from them. The assessment of the degree of pain and incapacity is essentially a subjective matter. In that regard, the Tribunal is mindful that the Applicant did not present as an entirely candid witness and he conveyed through his answers to questions a tendency to overstate the effect of his Injury and the limitations on his capacity to perform his job.
He described his pain at times as severe and unbearable and yet refused cortisone injections, surgical intervention and Endep medication recommended by Dr Obele[16]. Dr Cenap his treating doctor confirmed that he did not prescribe any pain medication for the Applicant and the Applicant stated only that he sometimes took Panadol Osteo or Panedeine forte.[17] The Applicant’s description of his pain was inconsistent with Dr Chin’s clinical notes where she noted: No major aggravation, no pain at rest. Pain when overreaching and over shoulder work, otherwise pretty good.
[16] See Transcript at pp.53-54
[17] Exhibit A1 at [68].
The evidence raises a question about the Applicant’s motivation for declining additional hours. His treating doctor Dr Chin noted that the Applicant was not keen for additional hours due to sleep issues, fatigue and a need to help out at home due to wife being unwell.[18] The Applicant’s evidence regarding his role in the household was not clear. He confirmed various histories taken by his treating medical practitioners that he undertook a large share of the household chores because of his wife’s medical condition[19] but other histories recorded that he had told his doctor that his wife needed to assist him with household chores. The Applicant sought to explain this inconsistency by claiming that the doctors must have misunderstood what he had said.[20] The Applicant’s evidence was that he really enjoyed driving and was motivated to undertake restricted driving duties[21] but it was the driving which exacerbated his pain and prevented him from performing other duties within his restrictions. The Applicant did not indicate any enthusiasm for his non-driving duties.
[18] See Transcript at pp.47-48.
[19] Transcript at pp.42-43.
[20] See Transcript at p.44.
[21] Transcript at p.14[30] and p.15[27].
Having considered the Applicant’s evidence overall the Tribunal approaches the evidence regarding his level of incapacity with caution noting that the medical assessment of his condition is, by necessity, influenced significantly by his description of his own symptoms.
Medical Evidence
The Tribunal has had regard to the evidence of the following medical practitioners:
(a)Dr Caaren Chin, general practitioner, who was the Applicant’s treating doctor in relation to his left shoulder condition from 23 April 2019 to 18 February 2021. Dr Chin provided various medical certificates and provided written notations on a draft rehabilitation program for the Applicant on 12 October 2020.[22] Dr Chin also gave oral evidence at the hearing.
(b)Dr Umit Cenap, general practitioner, who was the Applicant’s treating doctor from 14 February 2005 and who began treating the Applicant for his left shoulder condition in March 2021 after the Applicant requested that his file be transferred from Dr Chin at the Sonic HealthPlus Clinic. Dr Cenap produced various medical certificates and a written statement at the request of the Applicant dated 21 August 2022.[23] He also gave oral evidence at the hearing.
(c)Dr Simon Journeaux, consultant orthopaedic surgeon, who conducted a clinical assessment of the Applicant on 18 December 2020 at the request of the Respondent and provided a written report dated 23 December 2020.[24] Dr Journeaux also gave oral evidence at the hearing.
(d)Mr Christopher Pullen, the Applicant’s treating orthopaedic surgeon, who saw the Applicant from 18 November 2020 to 19 May 2021 and provided written reports dated 18 November 2020[25], 17 February 2021[26], 28 February 2021[27], and 18 November 2020[28] and 6 May 2022.[29] Mr Pullen also gave oral evidence at the hearing.
(e)Dr Mary Obele, consultant occupational physician, who saw the Applicant at the request of the Respondent on 22 May 2020 and provided a written report dated 26 May 2020[30] and a supplementary report dated 1 October 2020.[31]
(f)Mr Ash Moaveni, consultant orthopaedic surgeon, who conducted a clinical assessment of the Applicant on 30 August 2021 and 18 February 2022 and provided written reports at the request of the Applicant dated 30 August 2021[32] and 17 March 2022.[33] Mr Moaveni also gave oral evidence at the hearing.
(g)Mr Francis Ghan, consultant orthopaedic surgeon, who conducted a clinical assessment of the Applicant on 12 October 2021 at the request of the Respondent and provided a written report dated 25 October 2021.[34] Mr Ghan also gave oral evidence at the hearing.
[22] PT144.
[23] Exhibit A2.
[24] PT165.
[25] PT153.
[26] PT175.
[27] PT178.
[28] PT153.
[29] Exhibit A5.
[30] PT117.
[31] PT140.
[32] T15 at pp.44-54.
[33] Exhibit A4.
[34] T20.
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 DECISION
Decision
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’ Submissions
Respondent
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
The Applicant contends that:
(a)prior to his accepted injury, he could complete his shifts, including overtime, which primarily involved truck driving, but since his injury, he has been unable to do so, and experiences significant pain after a short period of truck driving;
(b)his prescribed hours and duties increased after the injury, notwithstanding that he had reported that his hours and duties aggravated his left shoulder pain, and the medical advice that his total hours should be limited, to promote recovery, and his hours driving should be capped, to avoid aggravations of pain;
(c)he underwent an initial period of physiotherapy, during which he made slow but steady progress, and later started an exercise physiology programme, but suffered an aggravation of his injury during the programme and did not continue;
(d)to date, he has not exhausted the conservative treatment options for his left shoulder injury; but
(e)he continues to experience symptoms because of his injury and his prognosis is poor.
Issue 1 – Does the Applicant continue to suffer from the effects of the accepted injury during the period from 1 December 2021 to the present date and presently?
Jurisdiction Issue
The Respondent accepted liability under section 14 of the SRC Act on 3 May 2018[37] for an injury identified as left shoulder rotator cuff tendinosis and subacromial bursitis sustained on 19 March 2018 (Injury). The Respondent notes that no other diagnostic ailments affecting the left shoulder were claimed or were before the decision maker at the time the threshold liability determination was made. There has been no application for review filed in relation to the threshold liability decision made on 3 May 2018 and the current Applications before the Tribunal deal solely with subsequent compensation entitlements under the Act in respect of the Injury.
[37] PT16 at pp.69-70.
The Respondent relied primarily on the opinion of Mr Ghan that, while the Applicant’s bursitis condition was precipitated by the incident at work in March 2018, the condition had fully resolved by the time of his assessment on 12 October 2021 and the Applicant’s current condition was constitutional and not work-related.
The Applicant asserted that the Tribunal should find that the accepted Injury is properly diagnosed as rotator cuff (supraspinatus and infraspinatus) tendinopathy and a partial thickness tear of the supraspinatus with a superior labral tear as diagnosed by Mr Moaveni and Mr Pullen and that he has continued to suffer the effects of the Injury, including throughout November and December 2020, throughout December 2021, and to date. The Applicant submitted further that the Tribunal should reject Mr Ghan’s alternative diagnosis of bursitis.
The Respondent contends that the Tribunal only has jurisdiction to consider the Applicant’s entitlements under section 16 and 19 of the SRC Act resulting from the accepted Injury, namely left shoulder rotator cuff tendinosis and subacromial bursitis, and once a determination of threshold liability under s 14 of the SRC Act is made, the Tribunal does not have jurisdiction when reviewing a subsequent decision dealing with ongoing entitlements to consider any “injury” other than the accepted injury.
The Full Court in Lees vComcare[38] observed that although the Tribunal has the powers of the original decision-maker under s 43(1) of the AAT Act, they are:
..powers "[f]or the purpose of reviewing" the reviewable decision, not powers that may be exercised at large. Further, the powers and discretions that the [Tribunal] may exercise under s 43(1) are the powers and discretions conferred by the Act on the determining authority for the purposes of reconsidering a determination under s 62 of the Act. The [Tribunal] will not be authorised on review of a reviewable decision to exercise any powers and decisions which would not have been available to the determining authority at the second tier decision-making stage, albeit that such powers and discretions might have been available to the determining authority at the first tier decision-making stage.
[38] [1999] FCA 753 at [39].
On this basis, the Respondent contends that the Tribunal does not have jurisdiction to consider any other diagnostic “injuries” of the left shoulder as these are subsequent and/or new “injuries” that have not been claimed or passed through the threshold liability determination stage and the provision of further evidence suggesting liability for a further or another new injury cannot broaden the ambit of the accepted injury in the absence of a fresh determination made under section 14 of the SRC Act.
The Respondent cited the Tribunal’s decision in Solman v Comcare,[39] which stated:
If the condition from which Ms Solman is presently suffering, and which is generating the need for medical treatment, incapacity payments and so on, is indeed a different condition to neck sprain, the Tribunal has no jurisdiction to determine any claims in relation to that new condition in the absence of a determination of liability under s 14. This is because the Act provides a mechanism (set out in Part VI of the Act) by which liability is established, and a condition which has not passed through the process of consideration so provided for cannot be the basis for review by the Tribunal.
[39] [2018] AATA 6 at [49].
In Comcare v Muir,[40] the Federal Court concluded that the Tribunal did not have jurisdiction to review a claim for compensation which had been reformulated by the applicant between the consideration and reconsideration stages in Part VI, stating:
Although limited flexibility is conferred upon the Tribunal to reformulate a claim, and whatever may be the outer limits of the power to do so, a claim confined to an injury suffered in October 2013 cannot be transformed into a claim for an injury suffered in 2010-2012. Unlike the claim resolved by Katzmann J in Kennedy where there had been a general description of the injury suffered and no specification of the date of injury, the facts in the present case stand in contrast. On the facts of the present case there was repeated reference to the injury the subject of the claim being that suffered in October 2013. It is not capable, with respect, of a conclusion that the claim was for an injury suffered at an earlier, unspecified point of time.
[40] [2016] FCA 346 at [37].
The Applicant contends that there is no jurisdictional obstacle to the Tribunal setting aside the reviewable decisions or making the underlying factual findings required for making that decision and any consequent orders. This includes a finding that, for the purposes of determining the issues in this proceeding, that the Applicant’s accepted left shoulder injury is better described (or, more properly diagnosed) as left shoulder rotator cuff (supraspinatus and infraspinatus) tendinopathy and a partial thickness tear of the supraspinatus and a superior labral tear.
The Applicant cited the observation of Heerey J in Telstra Corporation Limited v Hannaford[41] (Hannaford) that the …text, structure and underlying policy of the SRC Act do not suggest that a determination under s 14 permanently enshrines every finding of fact on which the determination was based. The Applicant asserted that, as a matter of legal principle, when reviewing an employee’s consequential entitlements under the SRC Act, for example entitlements under s 19, the Tribunal is empowered to make findings of fact, including findings that effectively undercut the earlier threshold liability decision made pursuant to s 14 of the SRC Act, even where the s 14 decision is not one of the reviewable decisions before the Tribunal.
[41] [2006] FCAFC 87 at [8].
In Hannaford, Conti J, with whom Dowsett and Heerey JJ agreed,[42] stated:
57 In my opinion, it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part...’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
58 The first instance decisions of this Court in Power, Hill and Riddle, which I have reviewed, each reflect in my opinion correctly the operation of the statutory scheme, and in particular its provision for ongoing adjustment designed to accommodate changing circumstances inclusive for instance (as here involved) of changing medical diagnosis. The approach to statutory construction and operation evident in those first instance authorities is not at odds with the approach to statutory construction and operation adopted by the Full Court in Lees subsequently to Power and Hill and prior to Riddle.
59 I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRA Act and in the events which happened:
(i)to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and
(ii)to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii)to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
[42] Ibid at [57]-[59].

The Respondent contended that the Federal Court decisions in Hannaford and also Abrahams v Comcare[43] (Abrahams) do not accept that the Tribunal has jurisdiction to consider an injury other than the accepted injury in the context of a decision dealing with subsequent compensation entitlements. The Respondent contends that Hannaford is only authority for the proposition that the Tribunal has jurisdiction when considering ongoing compensation entitlements for an accepted injury to rely on new evidence and make subsequent findings contrary to or which effectively undercut the findings upon which the initial acceptance of liability under section 14 of the SRC Act was based and consequently find that there is no current liability to pay compensation for medical treatment, incapacity for work or permanent impairment. The contention is that Hannaford is not authority which would allow the Tribunal when considering ongoing compensation entitlements for an accepted injury to consider a new or different injury from the injury originally claimed and accepted. The Respondent contends that “flexible” approach endorsed in Hannaford does not confer jurisdiction where jurisdiction does not exist in the first place.
[43] [2006] 93 ALD 147.
In Abrahams, the Applicant had been diagnosed with carpal tunnel syndrome in 2003 but his claim was refused under s 14 of the SRC Act. On application for review by the Tribunal from that refusal the Applicant sought to rely on new medical evidence and to advance a different injury as the basis for his claim. The Court accepted that the Tribunal had jurisdiction to make findings in relation to s 14 on the basis of the reformulated claim.
The Respondent contends that Abrahams is only authority for the proposition that an Applicant is entitled to raise a different diagnosis from the one claimed (known as a reformulated claim) where and only if:
(a)the Tribunal is reviewing a decision made in respect of threshold liability under section 14 of the SRC Act; and
(b)the reformulated claim is for an injury involving a different medical diagnosis from the medical diagnosis originally claimed in the claim form, provided that the same symptoms, disability and timeframe of onset are asserted.
The Tribunal accepts that the decision in Abrahams is distinguishable for the reasons advanced by the Respondent. In the instant case, the Tribunal is not reviewing a decision made in respect of threshold liability under s 14 of the SRC Act.
In Hannaford, Telstra accepted liability under s 14 to compensate Mr Hannaford in respect of the disease Ross River Fever, contracted during his employment, and allowed him compensation under s 16 (medical expenses) and s 19 (incapacity) in May 2002. In July 2003, Mr Hannaford made claims under ss 24 and 27 (permanent impairment claims). Telstra relied on medical evidence that at the time of its assessment the Applicant did not have the antibodies essential for a diagnosis of Ross River fever and therefore had not suffering from Ross River Fever as claimed in 2002. Telstra relied on this finding to determine that Mr Hannaford was not entitled to compensation under ss 16, 19, 24 or 27. Telstra’s earlier finding under s 14 that it was liable to compensate the Applicant in respect of Ross River Fever was not the subject of review.
The relevant factual circumstances in this case are that, on 3 May 2018, the Respondent accepted liability under s 14 in respect of left shoulder rotator cuff tendinosis and subacromial bursitis and subsequently paid the Applicant compensation under ss 16 and 19. On 1 December 2021 the Respondent determined that the Applicant was no longer entitled to compensation under ss16 and 19 on the basis that the Applicant’s left shoulder rotator cuff tendinosis and subacromial bursitis condition had resolved. The Applicant argues that the Tribunal should make a finding that the Applicant’s condition as it existed when the claim was made in May 2018 should be described as left shoulder rotator cuff (supraspinatus and infraspinatus) tendinopathy and a partial thickness tear of the supraspinatus and a superior labral tear and to determine the Applicant’s entitlement to compensation under ss 16 and 19 from 1 December 2021 on the basis of that finding.
In Hannaford the Court accepted that the Tribunal on review is entitled to rely on medical evidence subsequent to the decision accepting liability under s 14 which is relevant to the question of liability under ss 16, 19, 24 or 27, notwithstanding that the evidence is not in accordance with the findings upon which s 14 liability was determined.
In this case, the Applicant asks the Tribunal to consider the finding upon which the s 14 decision was made, namely to find that the injury was left shoulder rotator cuff (supraspinatus and infraspinatus) tendinopathy and a partial thickness tear of the supraspinatus and a superior labral tear in place of the finding upon which liability was accepted namely left shoulder rotator cuff tendinosis and subacromial bursitis.
Having considered these decisions, the Tribunal is satisfied that the Court has not gone so far as to say that the Tribunal can make findings that apply a new diagnosis to the accepted injury when reviewing decisions under ss 16 and 19. Hannaford goes no further than saying that once an injury has been accepted under s 14 the Tribunal can consider later medical evidence in assessing liability under ss 16 and 19 even if the evidence undercuts the findings under s 14. However, the Tribunal is not at large to reconsider the s 14 findings themselves in the absence of an application for review of the s 14 decision.
This raises the question in this case whether the new diagnosis contended by the Applicant is really a different injury or, as the Applicant contends, merely a better description of the injury which was accepted under s 14.
The Applicant does not assert that he has suffered a new and separate injury. He contends that a finding that the accepted left shoulder injury is better described as left shoulder rotator cuff (supraspinatus and infraspinatus) tendinopathy and a partial thickness tear of the supraspinatus and a superior labral tear, or a similar diagnosis, would not be a finding that he has suffered a new or separate injury.
The new diagnosis does not postulate a different causation. The three orthopaedic surgeons, Mr Moaveni, Mr Pullen, and Dr Journeaux, all attributed the Applicant’s ongoing left shoulder condition to the incident on 19 March 2018. This distinguishes the present case from Solman and Comcare which involved different injuries separated by both time and aetiology. Here there is a single incident and single injury.
The differences between the diagnosis of the Injury accepted under s 14 and that advanced by the Applicant are matters of detail or degree rather than being contradictory. Both diagnoses indicate the existence of rotator cuff tendinopathy. The principal differences between them is the presence of bursitis in the first, said to have been resolved by Mr Ghan, and the tearing of the supraspinatus and superior labrum noted by Mr Moaveni and Mr Pullen in the second. The absence of bursitis is really common ground by December 2021, the time of Mr Ghan’s report, as neither Mr Moaveni nor Mr Pullen note its presence and Mr Ghan opined that it had resolved. The principal difference between the diagnoses is therefore the presence of tearing of the supraspinatus and superior labrum which was not identified on scans until after the acceptance of liability under s 14.
Having regard to these matters, the Tribunal is satisfied that for the purpose of determining the matters before it the Tribunal has jurisdiction to make a finding whether the Injury is rotator cuff (supraspinatus and infraspinatus) tendinopathy and a partial thickness tear of the supraspinatus with a superior labral tear.
Assessment of Evidence
The Applicant relied principally on the evidence of orthopaedic surgeons, Mr Ash Moaveni, and Mr Christopher Pullen and also Dr Simon Journeaux.
Mr Pullen, the Applicant’s treating orthopaedic surgeon, assessed the Applicant on 18 November 2020, 17 February 2021 and 19 May 2021 and provided reports of those assessments. He also provided a report dated 28 February 2021 to the Respondent, and a report dated 6 May 2022 to the Applicant’s solicitor.
In his report of 28 February 2021, Mr Pullen stated that on 18 November 2020 he diagnosed the Applicant as suffering from left shoulder impingement syndrome, [low]-grade partial thickness supraspinatus tendon tear and capsulitis. He attributed the Applicant’s ongoing left shoulder symptoms to the incident of 19 March 2018. He rejected an alternative diagnosis of bursitis, stating this was not supported by the imaging, and would likely have already responded to the treatment received.
In his oral evidence, Mr Pullen said that both tears could have occurred at the same time and it was unlikely that tendon tears of the kind observed would be seen as part of asymptomatic degenerative shoulder pathology of a person in their sixties such as the Applicant.
Mr Ash Moaveni examined the Applicant on 30 August 2021 and provided a report dated 30 August 2021 and a supplementary report dated 17 March 2022.
In his report of 30 August 2021, Mr Moaveni diagnosed the Applicant’s left shoulder condition as rotator cuff (supraspinatus and infraspinatus) tendinopathy and partial thickness tear of the supraspinatus with superior labral tear. He said his diagnosis was consistent with the mechanism of injury described by the Applicant. He said there had been actual structural changes within the shoulder due to the injury, and not simply inflammation (ie: bursitis).
Mr Moaveni confirmed that his diagnosis was consistent with Mr Pullen’s diagnosis, save that Mr Pullen had also diagnosed impingement of the left shoulder.
Both Messrs Moaveni and Pullen commented on a radiological report of 20 November 2019 on the results of an MRI scan on the Applicant’s left shoulder[44] which noted moderate degenerative changes at the acromioclavicular joint and subtle thickening of the subdeltoid bursa and features of mild supraspinatus and infraspinatus tendinosis. The report included the finding of a small partial thickness articular surface tear in the posterior fibres of the supraspinatus tendon measuring 4mm transversely and another partial thickness articular surface tear in the anterior-most fibres of the supraspinatus tendon measuring approximately 6mm transversely. No full thickness defect was identified in the supraspinatus or infraspinatus tendons.
[44] PT99 at p.307.
Mr Moaveni said the MRI imaging from 20 November 2019 confirmed his findings on examination and explained that the tendinopathy was likely due to normal ageing and not painful, but the partial thickness tears, measuring 6mm and 4mm, were significant and symptomatic and consistent with the injury described by the Applicant. Mr Pullen attributed the tears shown on the MRI scan to the incident of 19 March 2018, describing it as an acute on chronic situation where the pain has been exacerbated by reaching.
Dr Journeaux assessed the Applicant on 18 December 2020 and provided a report to the Respondent dated 23 December 2020.[45] In his report, he commented that the MRI scan taken in November 2019 …demonstrated a rotator cuff tendonopathy with a high grade partial thickness tear of the supraspinatus tendon and a minor SLAP tear.[46] He diagnosed the Applicant as suffering from left shoulder rotator cuff tendinopathy with subacromial impingement which was significantly and causally related to his work as a postal transport officer and in particular the injury sustained on 19 March 2018. Mr Moaveni expressed agreement with this opinion in his report of 30 August 2021.
[45] PT165 at pp.532-544.
[46] Ibid at p.535.
The Applicant was also examined by Dr Mary Obele, an occupational physician, at the request of the Respondent. Dr Obele provided a report dated 26 May 2020 and a supplementary report of 1 October 2020, but the Respondent accepted that her evidence is of limited value to an assessment of the issues before the Tribunal.
The Respondent principally relied on the specialist medical opinion of Mr Francis Ghan, a consultant orthopaedic surgeon.
Mr Ghan assessed the Applicant on 12 October 2021 by videoconference with the assistance of a suitably qualified physiotherapist for the physical examination. He concluded:
Based on today’s physical examination, there is no evidence of any significant bursitis symptoms causing painful syndrome or impingement syndrome. The ultrasound was normal, showing no rotator cuff tear and the two MRI scans demonstrated minor partial thickness wear and tear of the supraspinatus tendon, not uncommon in his age group. This is age related and constitutional
In my opinion, there is no indication for surgery. It is my opinion that he can return to normal duties and normal hours. In my opinion, no restrictions need to apply.[47]
[47] T20 at p.93-4.
Mr Ghan accepted that the Applicant’s bursitis was precipitated by the incident at work in 2018 but he opined that the bursitis had resolved and the prognosis for the Applicant was good.
Mr Ghan maintained in his oral evidence that his examination findings did not confirm the presence of any sort of underlying pathology.[48] In cross-examination, Mr Ghan made no attempt to reconcile the differences between his diagnosis and that of Messrs Pullen and Moaveni, stating simply that he disagreed with their conclusions.
[48] Transcript p.193 [35].
Mr Moaveni said Mr Ghan’s diagnosis of bursitis was an incomplete diagnosis. He said that the symptoms of bursitis usually improve after between three weeks and three months, but they only explained part of the Applicant’s symptoms. He said the MRI findings showed structural changes within the shoulder, consistent with the Applicant’s history and ongoing symptoms.
The Applicant argued that the Tribunal should give significant weight to the evidence of Mr Moaveni and Mr Pullen.
In relation to Mr Moaveni, the Applicant asserted that:
(a)he is a surgeon of considerable experience in the sub-speciality directly relevant to the Injury[49] and he referred to recent research and developments in shoulder surgery, with which he seemed thoroughly familiar;
(b)he was the last expert to personally examine the Applicant;
(c)his opinion is based on a detailed history and examination of the Applicant and a consideration of the relevant documentary material and imaging; and
(d)he was a thoughtful, considered, and forthright witness who endeavoured to provide the Tribunal his independent opinion.
[49] Mr Moaveni’s evidence was that he has a special interest in upper-limb conditions affecting the shoulder, elbow, wrist and hand. He is a fellow of the Royal Australian College of Surgeons, a fellow of the Australian Orthopaedic Association, and a member of the Shoulder and Elbow Society of Australia. He has completed overseas fellowships in upper limb surgery. He sees approximately 1,000 new patients a year, all for upper limb conditions, 80% of which are shoulder conditions, and has held major public hospital appointments focusing on complicated upper limb conditions.
The Applicant also noted in relation to Mr Pullen that:
(a)like Mr Moaveni, he is a surgeon of considerable experience in the sub-speciality directly relevant to the relevant injury, having been practising as an orthopaedic surgeon for 23 years with a special interest in shoulder surgery; and
(b)he is the Applicant's treating surgeon.
The Respondent accepted liability under section 14 of the SRC Act on 3 May 2018[50] for an injury identified as left shoulder rotator cuff tendinosis and subacromial bursitis. There is at least common ground between Mr Ghan and Messrs Pullen and Moaveni that by at least October 2021 any bursitis resulting from the Injury was not present. The question is whether the Applicant continued to suffer from a left shoulder condition described by Mr Moaveni as rotator cuff (supraspinatus and infraspinatus) tendinopathy and partial thickness tear of the supraspinatus with superior labral tear or, as described by Mr Pullen, impingement syndrome, [low]-grade partial thickness supraspinatus tendon tear and capsulitis.
[50] PT16 at pp.69-70.
The presence of damage to the rotator cuff tendon was a feature of the Injury as accepted under s 14. Both Mr Moaveni and Mr Pullen found continued tendinopathy which was consistent with the symptomatology reported by the Applicant. In his oral evidence, Mr Ghan accepted that his diagnosis was not consistent with the Applicant’s history and continuing symptoms, but he stopped short of asserting that the Applicant was malingering.[51]
[51] See Transcript, p.196 [10]-197 [10].
For the reasons discussed above, the Tribunal accepts the Applicant’s evidence as to the symptoms he has suffered, and continues to suffer, as a result of the Injury, although the Tribunal has doubts regarding the severity and frequency of these symptoms. The diagnoses of Mr Moaveni and Mr Pullen better explain that symptomatology than does the opinion of Mr Ghan’s that the Applicant’s suffered from bursitis which had resolved by at least by December 2021. The opinions of Messrs Pullen and Moaveni are consistent with MRI scans and are broadly consistent with each other. The Tribunal prefers the evidence of Mr Moaveni and Mr Pullen as they each have a subspeciality in the relevant areas whereas Mr Ghan, although an experienced orthopaedic surgeon, does not. Mr Pullen is also the Applicant’s treating surgeon and Mr Moaveni conducted the most recent assessment of him.
The Tribunal therefore finds that at and from 1 December 2021 the Applicant continued to suffer from the left shoulder injury sustained on 19 March 2018 better described as rotator cuff (supraspinatus and infraspinatus) tendinopathy and partial thickness tear of the supraspinatus with superior labral tear, which condition continues to be significantly contributed to by the Applicant’s employment with Australia Post.
Issue 2 – Does the Injury continue to result in a reasonable necessity for medical treatment during the relevant period?
Mr Pullen reported in his report of 6 May 2022 that in his consultations with the Applicant on 18 November 2020, 17 February 2021 and 19 May 2021, he had discussed with the Applicant both operative and non-operative treatment options and had recommended that the Applicant undergo a physiotherapy program to rehabilitate his shoulder. He said that if the Applicant failed to respond to further physiotherapy treatment, the Applicant may benefit from a left shoulder arthroscopy, subacromial decompression and rotator cuff repair surgery.
Mr Pullen’s advice was reflected in the recommendations of the Applicant’s treating doctor, Dr Cenap in his report of 21 August 2022.[52] Dr Cenap also confirmed in his oral evidence that he had offered the Applicant the option of ultrasound guided steroid injections or local anaesthetic into the shoulder but the Applicant had refused the treatment. The Applicant’s treating doctor in December 2019, Dr Chin, also suggested steroid injections as a suitable treatment but the Applicant declined to undertake it.[53] Dr Journeaux confirmed in his evidence that this was an appropriate alternative to surgery.[54]
[52] Exhibit A2.
[53] Transcript, p.123 [10].
[54] Transcript, p.102 [38].
In his supplementary report of 17 March 2022, Mr Moaveni opined that the Applicant:
…has ongoing symptoms related to his left shoulder. I would recommend physiotherapy on a weekly or fortnightly basis for a period of four to six months with evaluation of the response… He may be a candidate for shoulder arthroscopy if his symptoms do not respond.
Dr Journeaux opined in his report of 23 December 2020 that, noting the Applicant had received 91 sessions of physiotherapy, no further treatment was reasonable given that the Applicant had plateaued, but he suggested it would be prudent for the Applicant to look at a suitable home exercise program to maintain current strength and range of movement. He also noted that the Applicant’s condition would not improve unless he considers surgical management and he stated that ideally the Applicant should consider shoulder surgery.

Mr Ghan responded to recommendations by the Applicant’s treating practitioners that he would benefit from further physiotherapy by stating:
He has had ample sessions of physiotherapy and as a matter of fact, exercise physiology aggravated his left shoulder. In my opinion, no treatment is necessary now and certainly there is no indication for surgery.[55]
[55] T20 at p.97.
The Tribunal prefers the evidence of the Applicant’s treating practitioners to that of Mr Ghan and is satisfied that the Injury continues to result in a reasonable necessity for medical treatment during the relevant period.
Issue 3 – Does the accepted injury continue to result in an entitlement to compensation for incapacity under s 19 of the SRC Act during the relevant period?
An entitlement to compensation under s 19 arises where an employee has an incapacity for work.
The Applicant’s evidence was that he continues to suffer symptoms of his Injury. He said he experiences 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 said he had not worked more than five hours per day including three hours of driving since 9 March 2021, but while he continued to experience episodes of left shoulder pain at work, he had been able to cope with work on these restrictions.
The Tribunal accepts the Applicant’s evidence that he has continued to suffer pain as a result of the Injury, although for the reasons discussed the Tribunal is sceptical about the severity and frequency of the symptoms described by the Applicant.
Mr Pullen, Mr Moaveni, Dr Journeaux and Dr Cenap all accept that the Applicant continues to experience the symptoms of the Injury.
Medical certificates issued by Drs Wong and Chin prior to 1 September 2020 stated that the Applicant was fit to work up to 7.5 hours per day subject to restrictions, including the time driving. After 1 September 2020, Dr Chin issued medical certificates stating that the Applicant was able to work full hours including overtime, subject to restrictions regarding his duties and time driving.[56]
[56] See ASF.
Dr Cenap has issued medical certificates consistently since 9 March 2021 stating that the Applicant is only fit to work a maximum of 5 hours per day with no more than 3 hours driving.[57] In his report of 30 August 2021, Mr Moaveni expressed the opinion that the Applicant’s restrictions of 5 hours per day, 5 days per week should be maintained. He
[57] See ASF.
re-iterated this in his supplementary report of 18 February 2022. Mr Pullen declined to comment on the Applicant’s work capacity in his report of 6 May 2022 as he had not seen the Applicant since May 2021.
Dr Journeaux accepted in his evidence that, while the Applicant could work full-time hours, he recognised that the symptoms required some restrictions on the amount of time the Applicant was engaged in driving.[58] In his report of 23 December 2020, he stated that the Applicant:
…will only be fit for sedentary or very light manual duties, with appropriate restrictions on the left upper limb, movements and weighted activity. He would be able to drive, in my view, for short periods - i.e. an hour or so at a time but will struggle for driving for prolonged periods, which would seem to be the case currently.
[58] T102.
Mr Ghan’s opinion was that the Applicant’s condition had resolved by October 2021 and he had no incapacity for work.
The Tribunal is satisfied that on the balance of the medical evidence the Applicant continues to have a partial incapacity for work as a result of his Injury and accordingly is entitled to compensation under s 19 of the SRC Act as assessed pursuant to the formula provided in s 19(2), taking account of his ability to earn in suitable employment based upon the restricted/modified duties offered by the Respondent during the relevant period.
Issue 4 – Does the Applicant have any entitlement to compensation for incapacity under s 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?
The question whether the Applicant’s entitlements are affected by him reaching retirement age is a matter determined by operation of s 23(1) of the SRC Act and not a matter for the Tribunal to determine as part of this review.
Conclusion
The Applicant continues to suffer from the effects of the accepted Injury 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 SRC Act.
Decision
The correct and preferable decision is therefore to set aside the reviewable decision. In view of the passage of time since the making of the reviewable decision, the Tribunal is satisfied that the appropriate course is to otherwise remit the matter 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.
In accordance with s 67 of the SRC Act, it is appropriate that the Respondent pay the Applicant’s reasonable costs and disbursements related to the matter.
MATTER 2021/1552 – THE REHABILITATION DECISION
Reviewable Decision
The application for review[59] in this matter concerns the decision of the Reconsideration Officer dated 1 March 2021 to affirm the determination of a delegate of the Respondent dated 18 November 2020[60] made pursuant to s 37(1) of the SRC Act that the Applicant:
(a)commence rehabilitation as per the Rehabilitation Upgrade Program dated 16 November 2020; and
(b)be entitled to weekly payments of compensation in accordance with s 37(5) of the SRC Act.
[59] See Application for Review at PT3 at p.35-40 and Section 37 Statement at PT4 at p.41.
[60] PT154 at pp.461-465.
Section 37(1) of the SRC Act relevantly provides that:
A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program.
Respondent’s Contention
The Respondent does not concede that the Applicant continued to suffer from the effects of the accepted injury during the period on and from 18 November 2020.
Alternatively, the Respondent contends that:
(a)the determination dated 18 November 2020 which determined that the Applicant was to commence the Rehabilitation Program which involved performing restricted duties for 8.35 hours per day, 5 days per week, including 3 hours of driving duties per day, covering the period from 18 November 2020 to 25 November 2020 constituted a valid rehabilitation determination made pursuant to s 37(1) of the SRC Act, and that the Applicant refused or failed to undertake the Rehabilitation Program without reasonable excuse; and
(b)by reason of the foregoing, the Applicant’s rights to compensation under the SRC Act (save for the Applicant’s entitlement to medical treatment under s 16 of the SRC Act) and to institute or continue any proceedings under the SRC Act in relation to compensation should be suspended by virtue of the operation of s 37(7) of the SRC Act.
The Respondent asserts that the issues for determination in relation to this matter are:
(a)whether the Applicant continued to suffer from the effects of the accepted injury during the period on and from 18 November 2020; and if so:
(b)whether the determination dated 18 November 2020 which determined that the Applicant was to commence a rehabilitation program as outlined in the Rehabilitation Update Program dated 16 November 2020 covering the period from 18 November 2020 to 25 November 2020 (“Rehabilitation Program”) was a valid rehabilitation determination made pursuant to s 37(1) of the SRC Act., and if so:
(c)whether the Applicant refused or failed to undertake that Rehabilitation Program without a reasonable excuse.
Applicant’s Contention
The Applicant contends that:
(a)the reviewable decision relates to a rehabilitation program issued pursuant to s 37(1) of the SRC Act, and there is no evidence that any decision has yet been made suspending the Applicant’s entitlements pursuant to s 37(7) for failing to comply with the programme.
(b)the Tribunal should find that the Applicant was not capable of completing the Program, for reasons including the following:
(i)the Program was unfeasible and inappropriate because, at the time, the Applicant was continuing to suffer from the effects of his Accepted Injury, and incapable of working more than 7 hours and 21 minutes including three hours of driving;
(ii)at the time the programme was issued, the further assessment by Dr Obele had not occurred, the report from Dr Journeaux was outstanding, and the Applicant had been referred for an MRI. These results of these enquiries were directly relevant to the suitability of the Program and should have been explored prior to it being issued; and
(iii)the Respondent appeared to be concerned about the capacity of the Applicant to undertake the Program at the time, as it issued an updated Program on 15 February 2021, adding an additional restriction limiting the Applicant’s driving to 1.5-hour driving blocks, seemingly in response to Dr Journeaux’s concerns.
(c)Further, or in the alternative, the Tribunal should find that in any event the Applicant had a reasonable excuse for not complying with the Program, pursuant to s 37(7).
Preliminary Issues
The purported determination under s 37(5) of the SRC included as part of the 18 November 2020 determination is misconceived. Sub-section 37(5)(a) does not require, nor empower the making of, a determination by the Respondent where a full-time program is undertaken, as was the case for the Applicant. The sub-section deems compensation not to be payable under ss 19 or 31 where an employee is undertaking a full-time rehabilitation program and instead provides for an equivalent amount of compensation to be paid. It is not a matter for decision by the Respondent, and therefore not a matter for consideration on review of the decision.
The decision under review is not a decision under s 37(7) to suspend the Applicant’s rights to compensation for refusal or failure, without reasonable cause, to undertake the Rehabilitation Program. The decision under review is the decision made under s 37(1) to require the Applicant to commence rehabilitation as per the Rehabilitation Upgrade Program dated 16 November 2020. The Courts have drawn a clear distinction between an assessment of the reasonableness of an employee’s excuse for refusing or failing to undertake a rehabilitation program for the purposes of s 37(7) and a review of a determination that the employee should undertake a particular rehabilitation program.[61]
[61] Australian Postal Corporation v Pascoe [2003] FCA 390 per Whitlam J and, on appeal, in Pascoe v Australian Postal Corporation, as cited in Australian Postal Corporation v Nunez [2014] FCA 1095.
For reasons stated above, the Tribunal is satisfied that the Applicant’s Injury had not resolved by 18 November 2020 and the Applicant continued to suffer from the effects of the accepted injury during the period on and from 18 November 2020.
Accordingly, the issue to be considered on review is whether the Applicant should be required to undertake the Rehabilitation Update Program dated 16 November 2020 covering the period from 18 November 2020 to 25 November 2020 (Program) pursuant to section 37(1) of the SRC Act.
Review of a decision under s 37(1) requires a consideration of the factors required to be considered in making a determination as stated in s 37(3), which are:
(a) any written assessment given under subsection 36(8);[62]
(b) any reduction in the future liability to pay compensation if the program is undertaken;
(c) the cost of the program;
(d) any improvement in the employee's opportunity to be employed after completing the program;
(e) the likely psychological effect on the employee of not providing the program;
(f) the employee's attitude to the program;
(g) the relative merits of any alternative and appropriate rehabilitation program; and
(h) any other relevant matter.
[62] Sub-section 36(8) provides: Where an examination is carried out, the person or persons who carried out the examination shall give to the rehabilitation authority a written assessment of the employee's capability of undertaking a rehabilitation program, specifying, where appropriate, the kind of program which he or she is capable of undertaking and containing any other information relating to the provision of a rehabilitation program for the employee that the rehabilitation authority may require.
The Program
The Rehabilitation Programme dated 16 November 2020[63] (Program) provided for the Applicant to work 8.35 hours per day over 5 days per week with the following restrictions:
[63] PT154 at pp.467-668.
- 3 hours of driving/ day
- Ad hoc admin tasks (incl. tallying ULDS)
- Dock counts
- Yard work i.e. conducting safety checks of the yard and trucks
- Clearing trucks, safety checks, checking vehicle service intervals (i.e. go to check vehicles to ensure that they are empty)
- Traffic Management
Modification:
[Applicant] to take a pause and stretch break every 25 minutes of
filing/administration duties
[…]
- with restrictions on performing work above the shoulder (less than 33%) and lift/carry 5kg less than 10%).
The Applicant’s principal concern regarding the Program was that he was not capable of undertaking it.
The Applicant gave evidence that prior to March 2021, he had worked in accordance with the medical certificates issued by Drs Wong and Chin. He said that from October 2018 he worked 7.5 hours per day and had regular physiotherapy which he found improved his condition. He said his hours were increased in or around 1 May 2019 to 8.35 hours per day with restrictions on driving of 3 hours per day.[64] These hours were then reduced to 7.35 hours per day following what the Applicant claimed was the aggravation of his injury from exercise physiotherapy conducted by Mr Davis. The Applicant gave evidence that while experiencing pain, he could manage to get through a 7.35-hour day and it wasn’t much different to working 8.35 hours. His hours of work were again increased to 8.35 hours per day from 2 November 2020[65] under the Program but the Applicant said that he did not work those hours relying on the medical certificates issued by Dr Cenap after March 2021 that he was only fit to work 5 hours per day with up to 3 hours driving. The Applicant confirmed in his evidence that he was able to complete up to 3 hours driving per day on a five hours per day arrangement as provided for in the medical certificates provided by Dr Cenap after March 2021, but he said that after 5 hours with 3 hours driving, he was spent and in considerable pain.
[64] Exhibit A1 at [24]-[29].
[65] Ibid at [38].
In formulating the Program, the delegate relied primarily on the medical advice of Dr Chin who was the Applicant’s primary treating practitioner in respect of his left shoulder condition from 23 April 2019 to 18 February 2021, when the Applicant elected to stop consulting Dr Chin in favour of Dr Cenap. Prior to April 2019, the Applicant was treated for his shoulder condition by Dr Wong at the same clinic.
From 23 April 2019, Dr Chin issued medical certificates stating consistently that the Applicant was fit for work on hours of 7.5 hours per day which included driving duties for 3 hours per day, save for the period from 22 June to 13 July 2020 when driving duties were restricted to 2 hours/day and the period from 13 July 2020 to 7 September 2020 when driving duties were restricted to 2.5 hours/day. The medical certificates issued by Dr Chin from 22 June 2020 to 25 November 2020 further stated that the Applicant could work overtime as long as he was not performing lifting/repetitive work with his left shoulder/left arm.[66]
[66] See Transcript at p.120 [40]-121 [15].
In October 2020, Dr Chin reviewed a draft of the Program for the Applicant which provided for him to work 8 hours 35 mins per day for first 4 weeks and thereafter graduated increase to full time hours and return to truck driving duties over a 15-week period. Dr Chin responded to the delegate on 12 October 2020 providing notations to the draft Program reducing the number of increased hours of driving duties proposed and otherwise approving the Program as notated.[67]
[67] PT144 at pp.433-437.
In her oral evidence, Dr Chin confirmed she was of the opinion the Applicant was physically capable of performing overtime but noted that Dr Wong’s clinical notes stated that the Applicant was not keen for additional hours because of sleep issues, fatigue and the need to help out at home due to his wife being unwell.[68]
[68] Transcript at p.121 [30]-[35].
Dr Journeaux, who saw the Applicant on 18 December 2020, was of the opinion that the Applicant was capable of working his full pre-injury hours but on restricted duties including limited driving. He stated:
In my view, given the level of symptoms and the physical examination findings, Mr Quick will only be fit for sedentary or very light manual duties with appropriate restrictions on left upper limb movements and weighted activity. He would be able to drive, in my view, for short periods, ie an hour or so at a time but will struggle for driving for prolonged periods which would seem to be the case currently.[69]
[69] PT165 at p.542.
He added that driving …seems to be an issue and therefore this would have to be managed in suitable chunks. I suspect, he could drive an hour or so but with appropriate breaks in between. This additional restriction was incorporated into subsequent rehabilitation determinations but did not result in any corresponding increase in the Applicant’s work hours.
Dr Journeaux also made the following comments about manual loading tasks associated with driving duties namely:
It is my view that he would have difficulty with the manual aspects of the tasks such as manually loading and unloading tasks. I suspect he would have difficulty with applying load restraints and using load shifting equipment, opening and closing curtain truck doors also problematic, as is lifting and removal of side gates.
The Tribunal notes that the Applicant as part of his rehabilitation program had been driving a “Wingliner” truck[70] which did not require the driver to open curtains on the side of the truck nor perform the manual loading tasks identified by Dr Journeaux.
[70] See Transcript at p.22 [39].
Mr Ghan, who assessed the Applicant on 12 October 2021, said the Applicant was capable of returning to his full pre-injury hours including driving with the only restrictions suggested being to avoiding driving trucks that have side curtains and poles.
Dr Umit Cenap began treating the Applicant for his left shoulder condition in March 2021 and from that time issued medical certificates stating the Applicant was only capable of working a maximum of 5 hours work per day including a maximum of 3 hours driving per day. His justification for these limited hours is that the Applicant reportedly suffers from constant pain which is worsened and becomes unbearable if he drives for more than 3 hours per day and works for more than 5 hours per day, even if the non-driving duties involve a sit-down office job. Dr Cenap also claimed that the Applicant … has tried many times to increase his working hours which has increased his pain to unbearable levels so much that he could not function and he could not work.[71]
[71] Exhibit A2.

On 17 April 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 17 April 2018 to 8 May 2018.
On 3 May 2018, the Respondent wrote to the Applicant informing him that it accepted liability pursuant to section 14 of the SRC Act, for his injury described as “left shoulder rotator cuff tendinosis and subacromial bursitis” sustained on 19 March 2018.
Initial period of recovery
On 8 May 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 8 May to 5 June 2018.
On 25 May 2018, the Respondent wrote to the Applicant, having determinised that he should commence rehabilitation. The Rehabilitation Program provided for the Applicant:
(a) To work Monday to Friday, 7.35hrs per day;
(b) To perform duties including:
(i) “Office duties, counting ULDS”; and
(ii) “Yard work i.e. conducting safety checks of the yard and trucks.”
(c) To work with restrictions including:
(i) “Perform seldom: push/pull, lift/carry 5kg”; and
(ii) “Unable to perform: climb (ladders/stairs), Work above shoulders”.
On 5 June 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 5 June to 3 July 2018.
On 15 June 2018, Mr Allan Rogers, Physiotherapist, issued an Allied Health Treatment Plan for the Applicant. It provided for 24 sessions of physiotherapy over 12 weeks and included goals of “Drive >2hrs nil pain by 5-9-18”.
On 15 June 2018, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It provided for the same hours and duties as the previous programme.
On 3 July 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 3 July to 31 July 2018.
On 11 July 2018, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It provided for the same hours as the previous programme, but expanded the duties to include:
(a) “Ad hoc admin tasks (incl. tallying ULDS)”;
(b) “Yard work i.e. conducting safety checks of the yard and trucks”;
(c) “Clearing trucks and checking vehicle service intervals”
On 31 July 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 31 July to 28 August 2018.
On 28 August 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 28 August to 25 September 2018.
On 11 September 2018, Mr Allan Rogers, Physiotherapist, issued an Allied Health Treatment Plan for the Applicant. It provided for 24 sessions of physiotherapy over 12 weeks. It noted that based on the Upper Extremity Functional Index (UEFI) the Applicant had improved from a rating of 32/80 on 15 June 2018, to a rating of 44/80 on 11 September 2018. It specified a goal of “Drive >2hrs nil pain by 6-11-18”.
On 18 September 2018, the Respondent accepted liability pursuant to section 16 of the SRC Act for the recommended 24 sessions of physiotherapy.
On 25 September 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 25 September to 9 October 2018.
On 4 October 2018, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It provided for the same hours and duties as the previous programme.
On 9 October 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 9 October to 23 October 2018.
On 16 October 2018, Dr Wong provided a report at the request of the Respondent. It stated:
1. Can you please provide an update on [the Applicant’s] current medical status and progress with treatment?
In comparison with the initial period, The Applicant’s symptoms have improved. However, he is having intermittent aggravations, approximately once weekly, lasting for hours to days. Currently having physiotherapy treatment for pain management and strengthening.
2. Can you please advise whether [the Applicant] has the capacity to work full hours (36.75) plus over time ([The Applicant] is currently working 36 hours and 45 minutes, his pre-injury average normal weekly hours equated to approx. 46 hours 45 minutes). [The Applicant] would be required to work 9 hours and 21 minutes per day.
I recommend [the Applicant] to work standard 7.5 hours daily.
3. If [the Applicant] has a restriction on the hours he is able to work, please provide a clinical rationale.
A standard 8 hour per day (including breaks) allow for recovery between work ie for muscle fatigue/minor aggravations to recover.
4. Can you please comment on a graded increase in hours for [the Applicant] to return to truck driving duties, and specify a timeframe for when [the Applicant] may be able to return to full hours of truck driving, without curtains/with curtains. Approximately 3-6 months to commence full hours, hopefully with curtain work.
5. Can you please outline [the Applicant’s] prognosis and long term work capacity.
I expect [the Applicant] to make a full recovery in 3-6 months.
On 23 October 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 23 October to 13 November 2018
Trial of return to driving duties
On 13 November 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 13 November to 11 December 2018. It stated that: “can trial driving 2 hours a day 13/11/2018 – 25/11/2018, 3 hours a day 26/11/2018 – 11/12/2018, can work up to 7.5 hours daily, avoid curtain work.”
On 21 November 2018, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It increased the Applicant’s daily hours from 7.21 to 7.5 hours per day, and in addition to the duties prescribed in the previous programme, provided for him to trial 2 hours of driving between 13 and 25 November 2018, and then trial 3 hours of driving from 26 November to 11 December 2018.
On or around 7 December 2018, an Allied Health Treatment Plan was issued. It provided for 18 sessions of physiotherapy over 12 weeks. It noted that based on the Upper Extremity Functional Index (UEFI) the Applicant had improved from a rating of 32/80 on 15 June 2018, to a rating of 44/80 on 11 September 2018, to a rating of 52/80 on 23 November 2018. It specified a goal of “Drive >4hrs nil pain by 7-3-19”.
On 11 December 2018, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 11 December 2018 to 2 January 2019. It stated that the Applicant “can trial driving 3 hours a day recommended before midday”.
On 17 December 2018, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed the same hours as previously, but modified the Applicant’s driving restrictions to “can trial driving 3 hours a day, recommended before mid-day”.
On 20 December 2019, a Claims Officer from the Respondent discussed the Applicant’s case with Mr Alan Rogers, Physiotherapist. The file note records that Mr Rogers advised:
(a) The Applicant’s shoulder was improving very slowly, was still irritable and could get aggravated with tasks above 90 degrees elevation and driving up to two hours.
(b) The Applicant’s hours and duties had been increasing at work, and further improvement was expected.
(c) The Applicant had been attending twice weekly, but had not attended recently, as treatment had not been approved by the Respondent.
(d) He agreed with the Claims Officer that treatment should continue, then gradually be reduced, and then there should be a transition to self-management.
On 21 December 2018, Mr Ronald Haig, Orthopaedic Surgeon, provided a report at request of the Respondent.[81]
[81] T50 at p.192.
On 2 January 2019, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 2 to 29 January 2019.51 It stated: “can trial driving 3 hours a day recommend before mid-day”, “can work up to 7.5 hours daily”, and “avoid curtain”.
On 2 January 2019, the Respondent accepted liability pursuant to section 16 of the SRC Act for the recommended 18 sessions of physiotherapy.
On 29 January 2019, Dr Wong, General Practitioner, issued the Applicant a certificate of capacity for the period 29 January to 26 February 2019. It stated: “can trial driving 3 hours a day recommend before mid-day”, “can work up to 7.5 hours daily”, and “avoid curtain work”.
On 7 February 2019, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed the same hours and duties as previously. It noted under “Comments”:
The Workplace Rehabilitation Provider (WRP) reviewed [the Applicant] via telephone on 7 February 2019. [The Applicant] reported he has been managing his 3 hours of driving, and is also continuing with adhoc admin duties as outlined. He reports he experiences aggravations to his pain symptoms, however is unable to pinpoint exactly what is causing these pains. [The Applicant] advised if he experiences ongoing pain following the driving duties especially on the following day, then he will take a day off to manage the pain; and indicated he is entitled to receive incapacity payments under his compensation claim for the day off rather than applying for sick leave.
On 25 February 2019, the Respondent accepted liability pursuant to section 16 of the SRC Act for a graduated reduction in physiotherapy, comprising:
(a) Physiotherapy as already approved up until 7 March 2019;
(b) Four sessions of physiotherapy over four weeks from 8 March to 7 April 2019;
(c) Four sessions of physiotherapy over eight weeks from 8 April to 31 May 2019; and
(d) Discharge to self-management from 1 June 2019.
Initial proposal to increase hours to 9.21 hrs per day – 12 March 2019
On 12 March 2019, the Respondent wrote to the Applicant and provided a proposed Rehabilitation Upgrade Program, providing for the Applicant to transition to his pre-injury Normal Weekly Hours of 46.76 hours per week (or 9 hours and 21 minutes per day) over a period of eight weeks. The proposal was based on the report from Mr Haig dated 21 December 2018.
On 18 March 2019, Dr Wong, General Practitioner, wrote to the Respondent in relation to the proposed Rehabilitation Upgrade Program. Dr Wong stated that the Applicant should continue working his current hours of 37.5 hours per week because:
(1) Medical evidence has shown that workers require times between shifts for recovery and the recommended shift is less than eight hours,
(2) The Applicant’s sleep is disturbed by his shoulder which has resulted in increased fatigue during the day and
(3) The Applicant has increased responsibility at home due to his wife being unwell.
Dr Wong also issued the Applicant a certificate of capacity for the period 26 February to 26 March 2019.58 It stated: “can trial driving 3 hours a day recommend before mid-day”, “can work up to 7.5 hours daily”, and “avoid curtain work”.
On 26 March 2019, Dr Wong issued the Applicant a certificate of capacity for the period 26 March to 23 April 2019.59 It stated: “can trial driving 3 hours a day recommend before mid-day”, “can work up to 7.5 hours daily”, and “avoid curtain work”.
On 23 April 2019, Dr Caaren Chin, General Practitioner issued the Applicant a certificate of capacity for the period 23 April to 21 May 2019.60 It stated: “trial of truck driving 3hrs/day recommend before midday”, “can work up to 7.5hour/day”, “avoid curtain work”.
Increase to 8.35 hours per day – 1 May 2019
On 1 May 2019, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed an increase in hours to 8.35 hours per day, but with the same duties as previously including limiting driving to 3 hours per day. The determination letter noted that the Applicant did not agree with the increase in hours, that he reported his symptoms remained unchanged and he no longer had access to physiotherapy, and that he was struggling after his shift each day.
On 21 May 2019, Dr Chin issued the Applicant a certificate of capacity for the period 21 May to 18 June 2019. It stated: “can work 7.5hr/day”, “avoid curtain work”, “trial of truck driving 3hr/day (recommend before midday)”.
On 11 June 2019, the Respondent determined the Applicant’s current rehabilitation program remained appropriate.
On 18 June 2019, Dr Chin issued the Applicant a certificate of capacity for the period 18 June to 17 July 2019. It stated: “can work 7.5hr/day”, “avoid curtain work”, “trial of truck driving (3hr/day) (recommend before midday)”.
On 9 October 2019, Dr Chin issued the Applicant a certificate of capacity for the period 9 October to 6 November 2019. It stated: “can work 7.5hrs/day”, “avoid curtain work”, and “can drive truck 3hr/day”.
On 20 November 2019, the Applicant underwent an MRI of his left shoulder. The report read:
Clinical History:
Truck driver. Ultrasound showed bursitis. ? rotator cuff tear ? osteoarthritis.
MRI LEFT SHOULDER
Technique:
Multiplanar PD and PD fat suppressed acquisition.
Findings:
Mild to moderate degenerative change is seen at the acromioclavicular joint. No inferior osteophytes. No interior acromial spur is evident.
Subtle thickening of subdeltoid bursa is noted.
There are features of mild chronic supraspinatus and infraspinatus tendinosis. A small partial thickness articular surface tear seen in posterior fibres of supraspinatus tendon located approximately 13mm from rotator cuff interval and measuring 4mm transversely. Another partial thickness articular surface tear is seen in anterior-most fibres of supraspinatus tendon measuring approximately 6mm transversely. No full thickness defect identified in supraspinatus or infraspinatus tendon.
Subscapularis tendon is unremarkable.
Biceps tendon is enlocated. Normal thickness and signal intensity of intra-articular and extra-articular segment of biceps long head tendon is seen.
Normal glenohumeral alignment. No chondromalacia over glenoid or head of humerus. Attrition and increased signal intensity of superior labrum is seen at 12 o'clock position with a tear involving the biceps anchor. No significant anterior or posterior extension of the tear is seen. The rest of the glenoid labrum appears normal. There is no glenohumeral joint effusion or synovial thickening. No paralabral cyst.
There are no morphological features of adhesive capsulitis.
Muscles around the rotator cuff show normal volume and signal intensity with no evidence of denervation or atrophy.
Impression:
1. Mild to moderate acromioclavicular osteoarthritis.
2. Mild chronic supraspinatus and infraspinatus tendinopathy.
3. Two small low-grade partial thickness articular surface tears in supraspinatus tendon, one in anterior-most part measuring 6mm and one in posterior-most fibres measuring 4mm.
4. Degenerative tearing and attrition of superior labrum at 12 o'clock extending to biceps anchor.
LEFT SHOULDER (AP, INTERNAL & EXTERNAL ROTATION & TRANSCAPULAR VIEWS)
Findings
No acute fracture identified in visualised part of clavicle scapula or humerus.
Mild to moderate degenerative changes of acromioclavicular joint noted.
No significant degenerative hypertrophic changes seen at acromioclavicular joint.
No subacromial spur is identified.
No significant osteoarthritic changes are seen glenohumeral joint.
Impression
AC joint degermation. No other osseous pathology is evident.
On 31 March 2020, Dr Chin issued the Applicant a certificate of capacity for the period 31 March to 28 April 2020. It stated: “avoid curtain work”, “can work 7.5hrs/day”, and “can drive 3hr/day”.
On 29 April 2020, Dr Chin issued the Applicant a certificate of capacity for the period 28 April to 26 May 2020.69 It stated: “avoid curtain work”, “can work 7.5hrs/day”, and “can drive 3hr/day”.
On 26 May 2020, Dr Mary Obele, Consultant Occupational Physician, provided a report at the request of the Respondent.
On 22 June 2020, Dr Chin issued the Applicant a certificate of capacity for the period 22 June to 13 July 2020. It stated: “can drive 2hrs/day”, “recommend gradual increase of work hours (need a gradual RTW plan)” and “can work overtime as long not lifting/ repetitive work with (L) shoulder/ left arm”.
On 13 July 2020, Dr Chin issued the Applicant a certificate of capacity for the period 13 July to 10 August 2020. It stated: “can drive 2.5hrs/day”, “recommend gradual increase of work hours (need a gradual RTW plan)” and “can work overtime as long not lifting/ repetitive work with (L) shoulder/ left arm”.
On 29 July 2020, Mr James Davis, Physiotherapist and Exercise Physiologist, provided a treatment plan recommending 22 sessions of exercise physiology over 12 weeks.
On 10 August 2020, Dr Chin issued the Applicant a certificate of capacity for the period 10 August to 7 September 2020. It stated: “can drive 2.5hrs/day”, “recommend gradual increase of work hours (need a gradual RTW plan)” and “can work overtime as long not lifting/ repetitive work with (L) shoulder/ left arm”.
Rehabilitation Upgrade Program for 7.35 hours per day – 21 August 2020
On 21 August 2020, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed 7.35 hours per day, five days per week, and restricted duties included a limit of 2.5 hours of driving per day.
On 3 September 2020, Mr James Davis, Physiotherapist and Exercise Physiologist, provided a report. Relevantly he stated in his report:
Mr Bolger mentioned to me that you have requested a graded exercise program for David Quick. So far he has been progressing well with his rehabilitation. There is quite a large discrepancy between his objective shoulder function, and his perceived function and progression. The outcome measures taken are below (22nd July and 3rd August). As you can see with the SPADI results, there is a difference between his objective function and his reported function. We have been slowly working towards David having a greater understanding of pain mechanisms and sensitization, however this is an ongoing and slow process. SPADI: 47% changed to 50% Overhead Press 5RM: 5kg to 10kg GHJ external rotation HHD: 24 changed to 28 In terms of an exercise program, he has a home program to complete daily, and is currently coming in once – twice per week for supervised gym work. The progressions of his gym exercise are based on RPE and altering the sets / reps to ensure progressive overload. These are below
…
On 7 September 2020, Dr Chin issued the Applicant a certificate of capacity for the period 7 September to 5 October 2020. It stated: “gradual return to work”, “can drive 3hrs/day” and “can work overtime as long not lifting/repetitive work with (L) shoulder/ (L) arm”.
On 11 September 2020, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed the same hours and duties as the previous programme, save that it decreased the driving restrictions to allow 3 hours of driving per day.
On 21 September 2020, Mr James Davis, Physiotherapist and Exercise Physiologist, provided a report. Relevantly he stated in his report:
I am the treating Exercise Physiologist and Physiotherapist for David. So far, we have been progressing quite slowly with David's rehabilitation. His functional measures (overhead strength, external rotation strength and scapula endurance) have all improved, however, his SPADI has remained ISQ. This is not overly a surprise, due to the chronicity of his shoulder symptoms, his function and his pain level will begin to separate as his rehabilitation continues.
I have discovered some Cervical input to his shoulder symptoms, in a closing type pattern. We have been working on this, and have added some deep neck flexor strengthening to his program.
He is still reporting that he has about 60 minutes of driving before his symptoms into his upper trapezius region appear. Once these symptoms begin, they seem to become more irritable. This seems to be Davids biggest concern currently. I have educated him on some pain mechanisms and he seems to understand this quite well.
In terms of RTW, I have approved Mr Bolger's most recent upgrades. I feel that David needs to attempt these duties, more from an "exercise" perspective, as nothing will improve his endurance like an increase in driving will. I have educated him on this, and the need to gradual increase this to enable adequate adaptations. I have said to him and Mr Bolger then we will review this in two weeks, depending on how he goes.
Please let me know if you have any questions or issues.
The report also noted the Applicant’s home and gym based exercise programs which are recorded as follows
Home:
- Red TB external rotation wall walks to full range 2 x 15
- Overhead shrugs with Dowel 2 x 15
- Red TB face Pulls + ER 3 x 15
- Deep Neck Flexor on wall red TB 2 x 10
Gym (3 x 12 reps, 3 x 10 reps, 4 x 8 reps)
- Single Arm DB row (8kg / 10kg/ 1 2kg)
- Scapula Plane shrugs (4kg /5kg / 6kg)
- Overhead press (4kg / 5kg / 8kg)

On 25 September 2020, the Applicant attended Mr Davis for the final time.
On 28 September 2020, Dr Chin issued the Applicant a certificate of capacity for the period 28 September to 21 October 2020. It stated: “gradual return to work”, “can drive 3hrs/day” and “can work overtime as long not lifting/ repetitive work with (L) shoulder/ (L) arm”.
Second proposal to increase hours to 9.21 hrs per day – 28 September 2020
On 28 September 2020, the Respondent wrote to the Applicant and provided a proposed Rehabilitation Upgrade Program, providing for the Applicant to transition to his pre-injury Normal Weekly Hours of 46.76 hours per week (or 9 hours and 21 minutes per day) and his pre-injury duties, including driving, over a period of fifteen weeks
On 1 October 2020, Dr Mary Obele, Consultant Occupational Physician, provided a supplementary report[82] at the request of the Respondent.
[82] T140 at p.419.
On 7 October 2020, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed the same hours and duties as the previous program dated 11 September 2020.
On 12 October 2020, Dr Chin issued the Applicant a certificate of capacity for the period 12 to 28 October 2020. It stated: “gradual return to work” and “can work overtime as long not lifting/ repetitive work with (L) shoulder/ (L) arm”.
On 12 October 2020, Dr Chin was asked by the Respondent to comment on the proposed Rehabilitation Upgrade Program provided to the Applicant on 28 September 2020. In her response:
(a) Dr Chin amended the proposed hours to reduce the number of hours driving.
(b) Dr Chin anticipated full-recovery to pre-injury capacity would take 19-24 weeks.
(c) Dr Chin commented:
(1) The Applicant has been advised to report any aggravation of symptoms until his increased duties.
(2) A site visit by the treating exercise physiologist could also be beneficial to identity possible aggravating factors, for an ergonomic review to identify suitable modifications if required.
(3) Repeat MRI (L) shoulder has been arranged today (12/10/2020)
On 26 October 2020, the Applicant underwent an MRI and x-ray of his cervical spine and left shoulder. The accompanying report read:
MRI CERVICAL SPINE
Clinical Notes:
Pain in the neck and left shoulder.
Report:
Normal vertebral body alignment and height. No abnormality seen at the foramen magnum or craniocervical junction and the atlantoaxial joints appear reasonably well preserved. At C2/3, there is no significant pathology.
At C3/4, there is some minor posterolateral endplate osteophyte formation but no neural compression.
At C4/5, there is reduced dise height with shallow broad based disc osteophyte ridge. No foraminal narrowing.
At C5/6, there is a broad based posterior disc osteophyte ridge and reduced disc height. There is indentation of the thecal sac andabutment of the cervical cord without cord compression. There is prominent posterolateral endplate osteophyte formation resulting in severe bilateral C6 foraminal narrowing.
At C6/7, there is a shallow broad based posterior disc protrusion. There is posterolateral disc protrusion and endplate osteophyte formation contributing to severe bilateral C7 foraminal narrowing.
At C7/T1, there is no pathology.
Normal signal seen throughout the cervical cord.
Paravertebral soft tissues are unremarkable in appearance. There does appear to be some nodularity in the thyroid gland particularly on the left.
Comment:
Multilevel degenerative disc disease as described, and there is severe narrowing at the C6 and C7 foraminae bilaterally. Disc osteophyte ridge abuts the cervical cord at C5/6.
MRI LEFT SHOULDER
Normal alignment of the glenohumeral and AC joints.
The acromion has a type 2 morphology and is neutral in position. There is no subacromial spurring.
There does appear to be some erosive change and subchondral cortical bony irregularity of the AC joint with a small effusion seen within the joint and soft tissue oedema in the capsule.
The subacromial bursal soft tissues appear reasonably well preserved with some subtle oedematous thickening over the rotator interval.
The tendons of the rotator cuff are intact.
The long head of biceps tendon is normal in position and appearance with normal attachment on the glenoid labrum.
The glenchumeral joint appears reasonably well preserved. The glenoid labrum is also reasonably well preserved. Minimal blunting of the anterior labrum. There is some minor thickening and hyperintense signal in the joint capsule particularly in the inferior recess consistent with some capsulitis.
Comment:
There are features of degenerative change at the AC joint. There are some features of capsulitis. Rotator cuff tendons appear reasonably well preserved.
X-RAY CERVICAL SPINE
Normal vertebral body alignment and height. There is some osteophytic narrowing of the C6 and C7 foraminae bilaterally, which appears more marked on the left on the oblique views. There is normal vertebral body alignment and height. Dis space narrowing and posterior endplate osteophyte formation is seen at C5/6 to lesser extent at C6/7.
X-RAY LEFT SHOULDER
Normal alignment of the glenohumeral and AC joints with widening of the AC joint. There is no erosive arthropathy in the glenohumeral joint. There is no subacromial spurring or soft tissue calcification. No other findings.
On 28 October 2020, Dr Caaren Chin issued the Applicant a certificate of capacity for the period 28 October to 25 November 2020. It stated: “gradual return to work plan” and “can work overtime as long not lifting/ repetitive work with (L) shoulder/ (L) arm”.
Increase in hours to 8.35 hours per day – 2 November 2020
On 2 November 2020, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed an increase in daily hours from 7.35 hours/day to 8.35hours/day. It continued to restrict driving to 3 hours/day.
On 16 November 2020, the Respondent wrote to the Applicant and advised that:
(a) He had failed to undertake the requirements of the rehabilitation programme dated 2 November 2019, in that he had not attended the workplace for 8.35 hours/day and completed “ad hoc administration duties” as outlined in the programme.
(b) He had 14 days to provide a written explanation for why he had failed to undertake the requirements of the rehabilitation programme, otherwise a determination will be made as to whether to suspend his rights to compensation under s 37(7) of the SRC Act.
On 18 November 2020, Mr Christopher Pullen, Orthopaedic Surgeon, provided a report.[83]
[83] T153 at p.460.
Initial determinations regarding 8.35 hours per day made – 18 and 20 November 2020
On 18 November 2020, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed the same hours and duties as the previous program dated 2 November 2020.[84]
[84] This is the initial determination subject to review in AAT 2021/1552.
On 20 November 2020, the Respondent wrote to the Applicant and advised that it had determined he had an earning capacity equivalent to the salary rate payable working 8.21 or 8.35 hours per day, in line with the return-to-work programmes dated 2 and 18 November 2020, and his incapacity payments payable pursuant to s 19 would be calculated accordingly.[85]
[85] This is the initial determination subject to review in AAT 2021/1550.
On 25 November 2020, Dr Caaren Chin issued the Applicant a certificate of capacity for the period 15 November to 23 December 2020. It stated: “can drive to/under 3 hours/day”.
Increase to 9.21 hours per day and initial determination – 27 November 2020
On 27 November 2020, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed an increase in daily hours from 8.35 hours/day to 9.21 hours/day. It continued to restrict driving to 3 hours/day.
On 8 December 2020, the Respondent wrote to the Applicant and advised that it had determined he had an earning capacity equivalent to the salary rate payable working 9.21 hours per day, in line with the return-to-work programme dated 27 November 2020, and his incapacity payments payable pursuant to s 19 would be calculated accordingly.[86]
[86] This is the initial determination subject to review in AAT 2021/1551.
On 10 December 2020, the Applicant emailed the Respondent and requested the review of the decision regarding his working hours.
On 23 December 2020, Dr Simon Journeaux, Consultant Orthopaedic Surgeon, provided a report[87] at the request of the Respondent.
[87] T165 at p.532.
On 23 December 2020, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed the same hours and restrictions as the previous programme dated 27 November 2020.
Request for review and physiotherapy – 3 February 2021
On 3 February 2021, solicitors for the Applicant wrote to the Respondent and requested reconsideration of decisions effecting the Applicant.
On 12 February 2021, the Applicant’s solicitor wrote to the Respondent, and requested urgent physiotherapy treatment, noting Dr Journeaux’s recommendation for a suitable home exercise programme and Mr Pullen’s recommendation.
On 17 February 2021, Mr Pullen provided a report. It stated:
I reviewed David via Telehealth today. His previous left shoulder MRI scans have shown evidence of high-grade partial-thickness tearing of his supraspinatus tendon, capsulitis and acromioclavicular joint arthropathy.
At review today, I have discussed both non-operative and operative treatment. I have suggested David may benefit from a trial of physiotherapy and decreased work hours. I have discussed a left shoulder arthroscopy, subacromial decompression and debridement
David has gone away to consider his options and will return fo [sic] review in 2 to 3 months.
On 15 February 2021, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed the same hours and restrictions as the previous programmes dated 23 December and 27 November 2020.
On 28 February 2021, Mr Pullen provided a report[88] to the Respondent.
[88] T178 at p.620.
By letter dated 1 March 2021, the Respondent issued a reviewable decision, confirming its determination dated 8 December 2020.
By letter dated 1 March 2021, the Respondent issued a reviewable decision, confirming its determination dated 20 November 2020.
By letter dated 1 March 2021, the Respondent issued a reviewable decision, confirming its determination dated 18 November 2020.
On 1 March 2021, the Respondent wrote to the Applicant and advised that:
(a) He had failed to undertake the requirements of the rehabilitation programme dated 15 February 2021, in that he had not attended the workplace for 9.21 hours/day as of 15 February 2021.
(b) He had 14 days to provide a written explanation for why he had failed to undertake the requirements of the rehabilitation programme, otherwise a determination will be made as to whether to suspend his rights to compensation under s 37(7) of the SRC Act.
On 9 March 2021, Dr Umit Cenap, General Practitioner, issued the Applicant a certificate of capacity for the period 9 March to 5 April 2021. It stated: “He can drive a truck 3 hours/day” and “maximum hours/day is 5 hours and this includes 3 hr driving”. Under treatment plan it recommended “physiotherapy twice per week, Nsaids and Panadol osteo PRN”.
On 6 April 2021, Dr Cenap issued the Applicant a certificate of capacity for the period 6 April to 2 May 2021. It stated: “He can drive a truck 3 hours/day” and “maximum hours of work is 5 hours (this includes 3 hr driving)”. Under treatment plan it recommended “Physiotherapy twice per week, Nsaids, Panadol Osteo”.
On 3 May 2021, Dr Cenap issued the Applicant a certificate of capacity for the period 3 to 30 May 2021. It stated: “He can drive a truck 3 hours/day” and “maximum hours/day is 5 hours (this includes 3 hr driving)”. Under treatment plan it recommended “physio, Nsaids & Pan. Osteo”.
On 10 May 2021, Dr Cenap wrote to the Respondent[89].
[89] (2022/0495) T7 at p.19.
On 15 May 2021, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed that the previous programme dated 15 February 2021 remained in place pending review of Dr Cenap’s report.
On 23 June 2021, the Respondent wrote to the Applicant’s solicitor. The email stated:
Post has previously approved payment of 99 physiotherapy sessions that have been provided to [the Applicant] with limited functional improvement. Upon review by
independent specialists it was advised further physiotherapy was not reasonable and a transfer to self-management was expected.
To assist with self-management Posts Rehabilitation team arranged for [the Applicant] to be seen by an exercise physiologist. This particular physiologist is both qualified physiotherapist and physiologist. [The Applicant] attended 11 sessions up to 25 September 2020
With the previous medical advice of [the Applicant] being fit to remain on full hours and increase his functional duties within the work place, rehabilitation offered a further 12 week physiology program which I understand [the Applicant] declined.
I have sought an opinion from his new treating GP, Dr Cenap on how physiotherapy would be more suitable noting previous treatment did not assist with functional gains and could not be justified if assessed under the clinical frameworks.
To date I am still awaiting on the requested report.
In relation to making a determination for further physiotherapy, a review of his entitlement will be conducted on receipt of the report requested from Dr Cenap on 10 March 2021.
Post would still honour the initial proposal for [the Applicant] to attend a further 3 month physiology program which is managed by a physiologist who is also a qualified physiotherapist.
On 29 June 2021, Dr Cenap issued the Applicant a certificate of capacity for the period 28 June to 24 July 2021. It stated: “He can drive a truck 3 hours/day” and “maximum hours/day is 5 hours (this includes 3 hr driving)”. Under treatment plan it recommended “Physio, Nsaids & Panadol Osteo”.
On 26 July 2021, Dr Cenap issued the Applicant a certificate of capacity for the period 25 July to 21 August 2021. It stated: “He can drive a truck 3 hrs/day” and “Max. daily hours of work is 5 hrs (this includes 3hrs of driving)”. Under treatment plan it recommended “Physio, Nsaids & Pan. Osteo”.
On 27 July 2021, the Respondent wrote to the Applicant, and provided a Rehabilitation Upgrade Program. It prescribed that the previous programme dated 15 February 2021 remained in place pending review of Dr Cenap’s report.
On 23 August 2021, Dr Cenap issued the Applicant a certificate of capacity for the period 25 July to 21 August 2021. It stated: “He can drive a truck for 3 hrs/day” and “Max. daily hours of work is 5 hours (this includes 3hrs of driving)”. Under treatment plan it recommended “Physio, Nsaids & Pan. Osteo”.
On 30 August 2021, Mr Ash Moaveni, Orthopaedic Surgeon, provided a report at the request of the Applicant.[90]
[90] 2022/0495 T15 at p.44.
On 20 September 2021, Dr Cenap issued the Applicant a certificate of capacity for the period 19 September to 15 October 2021. It stated: “He can drive a truck for 3 hrs/day” and “Max. daily hours of work is 5 hours (this includes 3hrs of driving)”. Under treatment plan it recommended “Physio, Nsaids & Pan. Osteo”.
On 18 October 2021, Dr Cenap issued the Applicant a certificate of capacity for the period 16 October to 12 November 2021. It stated: “He can drive a truck for 3 hrs/day” and “Max. daily hours of work is 5 hours (this includes 3hrs of driving)”. Under treatment plan it recommended “Physio, Nsaids & Pan. Osteo”.
On 25 October 2021, Mr Francis Ghan, Consultant Orthopaedic Surgeon, provided a report[91] at the request of the Respondent.
[91] 2022/0495 T20 at p.91.
ease effects determination – 1 December 2021
1 December 2021, the Respondent issued a determination that the Applicant no longer had a present entitlement, in relation to his compensation claim for “Left Shoulder Rotator Cuff Tendinosis and Subacromial Bursitis”, for: compensation benefits in respect of medical costs under s 16 of the SRC Act; or Compensation benefits in respect of incapacity costs under s 19 of the SRC Act.[92]
[92] This is the initial determination subject to review in AAT 2022/0495.
On 3 December 2021, Dr Cenap provided a report
On 16 December 2021, solicitors wrote to the Respondent on behalf of the Applicant and requested reconsideration of the cease effects determination.
On 13 January 2022, Dr Cenap issued the Applicant a certificate of capacity for the period 7 January to 3 February 2022. It stated: “He can drive a truck for 3 hrs/day” and “Max. daily hours of work is 5 hours (this includes 3hrs of driving)”. Under treatment plan it recommended “Physio, Nsaids & Pan. Osteo”.
On 18 January 2022, the Respondent issued a reviewable decision, confirming its determination dated 1 December 2021.
On 20 January 2022, the Applicant via his solicitors lodged an application for review of the determination with the Tribunal.
On 4 February 2022, the Respondent wrote to the Applicant and informed him that his rehabilitation case had been closed
On 18 February 2022, Mr Ash Moaveni, Orthopaedic Surgeon, provided a supplementary report at the request of the Applicant.

I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member R West

.........................[SGD]...............................................
Associate
Dated: 7 July 2023

Dates of hearing: 6-9 February 2023

Date final submissions received: 28 April 2023

Counsel for the Applicant: Shane Dawson

Solicitors for the Applicant: Angela Sdrinis Legal

Counsel for the Respondent: Roy Seit

Dates of hearing:	6-9 February 2023
Date final submissions received:	28 April 2023
Counsel for the Applicant:	Shane Dawson
Solicitors for the Applicant:	Angela Sdrinis Legal
Counsel for the Respondent:	Roy Seit