Richard Lee and John Holland Pty Ltd
[2013] AATA 547
[2013] AATA 547
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/3319 & 2013/1134
Re
Richard Lee
APPLICANT
And
John Holland Pty Ltd
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Dr M Denovan, MemberDate 5 August 2013 Place Brisbane In each application, the decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
COMPENSATION – INJURY – Shoulder injury – Whether injury or aggravation of injury arose out of or in the course of employment – Symptoms not attributable to workplace incident – Decisions under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A, 14, 19
CASES
Canale v Commissioner of Main Roads (1982) 1 WAWCB 163
REASONS FOR DECISION
Deputy President P E Hack SC
Dr M Denovan, Member5 August 2013
INTRODUCTION
The applicant, Mr Richard Lee, is a former employee of the respondent, John Holland Pty Ltd. In June 2010 John Holland accepted liability to pay compensation to Mr Lee pursuant to the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) for a left shoulder injury described as “Grade 1 AC joint disruption”. The date of the injury was accepted as being 10 June 2010. Thereafter Mr Lee received compensation by way of weekly incapacity payments and for payment of medical expenses.
In April 2012 Mr Lee was continuing to experience problems with his left shoulder. He sought further payment of compensation from John Holland which treated his request as a claim for compensation for a condition it described as “focal bursal surface tendon tear anterior supraspinatus tendon left shoulder”. On 16 May 2012 John Holland determined that it was not liable to pay Mr Lee compensation in respect of that condition. On 18 May 2012 John Holland determined that Mr Lee was not entitled to compensation pursuant to s 19 of the SRC Act (weekly incapacity payments) during the period 17 April 2012 to 18 July 2012. Those determinations were affirmed by decisions on reconsideration on 14 June 2012 (s 14 liability) and 11 July 2012 (s 19 liability).
Mr Lee seeks a review of those reconsideration decisions. The first of them is the subject matter of application 2012/3319 lodged in the Tribunal on 3 August 2012. The other decision is the subject matter of application 2013/1134 lodged on 13 March 2013. In these proceedings Mr Lee contends, in essence, that what ailed him in April 2012 was merely a continuation of his earlier accepted condition. John Holland advances two arguments why that is not so. First, it says that the accepted condition was a temporary but work-related aggravation of an earlier injury suffered by Mr Lee in a motor vehicle accident in March 2010 and that the aggravation has now ended. Alternatively, it contends that by April 2012 Mr Lee was suffering from the effects of an injury occasioned by his employment as a machine operator in an entirely different employment unrelated to John Holland.
BACKGROUND
What follows is uncontroversial. It is, by and large, taken from contemporaneous documents.
Mr Lee is now aged 45 years. In January 2009 he commenced working for John Holland on what was known as the Springfield Transport Corridor, a civil engineering project that involved widening the Centenary Highway. He left the employment of John Holland in January 2011 when his contract ended.
Mr Lee says that he initially damaged his shoulder in about February 2010 when he was required to lift a jack hammer. He says that he “felt something tear in [his] left shoulder and [he] felt pain”. He did not then seek any medical attention and had no time off because of it. John Holland puts the happening of this occurrence very much in issue.
The next relevant event occurred late on the afternoon of 28 March 2010, the Sunday before Easter. Mr Lee was driving his motor vehicle on the Logan Motorway when it was involved in a single vehicle accident. According to Mr Lee the vehicle struck the side of a bridge at a speed of approximately 100 kilometres per hour. He was significantly affected by alcohol. He was admitted to the Princess Alexandra Hospital. He remained an inpatient of that hospital until his discharge on 1 April 2010. The hospital records show no significant injuries apart from a facial injury which was operated on on 31 March 2010. When Mr Lee was later interviewed by police[1] he was asked if he had sustained any injuries in the collision. He is recorded as answering, “Tear in the shoulder and injuries to the mouth”, and made reference to taking anti-inflammatory medication for his shoulder.
[1]Exhibit 8. The date of this interview does not emerge from the material.
Mr Lee took sick leave from his employment from 29 March 2010 to 1 April 2010. On his discharge from hospital he was provided with a medical certificate[2] to the effect that it was anticipated that he would be unfit for duty up to 7 April 2010. He was off work over the Easter weekend (2 April 2010 to 5 April 2010), took further sick leave on 6 and 7 April 2010 and annual leave on 8 and 9 April 2010 before returning to work on Monday 12 April 2010, effectively an absence from work of two weeks.
[2] An attachment to exhibit 24.
On 9 April 2010 Mr Lee attended his local general practitioner who recorded the following[3];
has had a previous L shoulder injury about 2 m ago/ thought will heal on its own / about 2 weeks ago had a car accident was taken to the hospital bruised all over/ about 4 days ago was pulling a plug & got stuck felt a twinge of pain in the L shoulder/ since then feels terrible pain in the L shoulder/unable to lift any heavy object
L shoulder – abduction up to 70 degrees/ all other movements are limited
rotator cuff impingement test +
? L rotator calf [? cuff] tear (supraspinatus)
Mr Lee had an ultrasound of his left shoulder on 14 April 2010. It reported that the supraspinatus tendon was intact but that there was a complete full thickness tear of the subscapularis tendon with associated bursitis.
[3]Exhibit 17. Obvious typographical errors have been corrected.
Mr Lee was then referred for physiotherapy and had five sessions between 16 April 2010 and 14 May 2010. Again it may be noted that the report of the initial consultation[4] referred to a complaint of the left shoulder having been sore since the motor vehicle accident two weeks earlier.
[4]Exhibit 11.
Then on 10 June 2010, in the course of his employment, Mr Lee tripped and used his outstretched arms to prevent a fall. An ice pack was applied to the left shoulder by a work colleague and he was taken to the Princess Alexandra Hospital. He was given analgesic relief. Mr Lee lodged a claim for compensation on 14 June 2010 (or thereabouts). In response to a question about similar injuries in the past he indicated that he had not previously suffered from such injuries. On 23 June 2010 John Holland accepted liability to pay compensation to Mr Lee for a condition described as "Grade 1 AC joint disruption, left shoulder", that being the description given in a medical certificate from the Princess Alexandra Hospital[5].
[5]Exhibit 1, page 12.
It was agreed that Mr Lee should have surgery on his shoulder. In anticipation of that surgery, an MRI examination of Mr Lee's left shoulder was undertaken on 1 July 2010. It showed[6],
Complete tear of the subscapularis tendon with 2 cm retraction of tendon. Supraspinatus tendinosis with some undersurface fraying. Advanced degenerative change in the acromioclavicular joint which is effacing the subacromial fat and indenting the supraspinatus muscle without focal muscle change. Subacromial bursitis. Superior labral tear extending from 3 o'clock through 11 o'clock. Biceps anchor intact.
[6] Exhibit 1, page 31.
Mr Lee's employment with John Holland came to an end through the effluxion of time in January 2011. Thereafter he worked occasionally as a labourer. He had further surgery in September 2011 performed by Dr Darren Marchant, an orthopaedic surgeon. By early January 2012 Dr Marchant was of the opinion that Mr Lee was fit for "suitable duties"[7]. Mr Lee commenced work driving a compactor in March 2012. He says that the pain from his shoulder increased once he was working again. He saw Dr Marchant in April 2012. Dr Marchant's report of 1 May 2012 notes[8],
[Mr Lee] also stated that he had been asked to work a compactor which had repetitive heavy vibrations. He stated that as a result of this increase in physical activity he had noticed an increase in his pain with a decreased range of motion.
Dr Marchant described the results of an MRI of 20 April 2012 in this way,
I note his recent MRI scan confirms the initial repair is intact however he now appears to possibly have a tear to the supraspinatus tendon. This was certainly not present at his initial surgery. Mr Lee does not describe any specific incident which may account for this tear and as such I am unable to comment on the direct cause of it.
That MRI report[9] noted that the supraspinatus bursal surface tendon tear had not been present on the previous study undertaken on 12 September 2011.
[7]Exhibit 1, page 136.
[8]Exhibit 1, pages 191-3.
[9] Exhibit 1, pages 160-1.
In May 2012 John Holland determined that it was not liable to pay compensation for Mr Lee's ailment, described as a "focal bursal surface tendon tear anterior supraspinatus tendon left shoulder", a description taken from the MRI report. The decision-making history thereafter has already been noted.
THE MEDICAL EVIDENCE
Mr Lee has seen Dr Hugh English and Dr Mark Robinson, both orthopaedic surgeons. Dr Robinson specialises in hands and upper limbs. Dr English saw Mr Lee in May 2012 and again in December 2012. Dr Robinson saw him in June 2012. Mr Lee appears not to have mentioned the motor vehicle accident to either of them.
Dr English, unaware of the motor vehicle accident or the medical notes about its severity, was originally of the view that Mr Lee's ongoing symptoms in April 2012 were "in keeping with the initial injury sustained 10 June 2010". Moreover, and although they had been provided to him, it appears that he had overlooked the significance of the MRI of 20 April 2012 and Dr Marchant's report of 1 May 2012. When those latter matters were specifically drawn to his attention Dr English expressed the opinion, in a supplementary report of 13 May 2013, that Mr Lee had a new tear of the supraspinatus tendon which was likely to have occurred whilst he was using the compactor over a period of time. By the time of the December 2012 examination Dr English was aware of the clinical notes of Mr Lee's general practitioner from April 2010 following the motor vehicle accident. In his report of 11 December 2012[10] Dr English noted that Mr Lee was "unable to recall" to him the details of that accident. But Dr English considered that there was considerable radiological evidence that there had been a complete full thickness tear of the subscapularis prior to 16 April 2010 at which time the supraspinatus was noted to be intact. It is oral evidence Dr English expressed the view that the degree of force in the motor vehicle accident, particularly the actions of gripping the steering wheel, was the most likely mechanism to cause a tendon tear. Simple lifting of a jackhammer, he considered, was unlikely to do so. He believed that the June 2010 fall was likely to have occasioned minor aggravation of the injury earlier caused by the motor vehicle accident.
[10]Exhibit 5.
Dr Robinson was of the opinion that Mr Lee's symptoms in June 2012 were the "consequence of the [June 2010] fall with symptomatic aggravation from further occupational exposure".[11] However that opinion was formed on this basis,
John Holland Group have denied his claim, based on an MRI scan which reported the supraspinatus tendon tear seen on 20/4/2012, which was not present on 12/9/2011. They are claiming the injury to the tendon occurred whilst Richard was driving the compactor for Direct Skills. Richard denies any specific injury, whilst driving the compactor. He experienced symptomatic aggravation of his shoulder. There is no history of force, violence of [sic - ?or] excessive strain placed on Richard’s shoulder to develop a "tear". The supraspinatus tendon was initially reported as abnormal, on ultrasound. Richard may have symptomatically aggravated the tendon during the course of employment with Direct Skills. He denies a history of a structural injury. [Emphasis added]
Dr Robinson additionally was unaware of the account given to Dr Marchant by Mr Lee that his work on the compactor in March 2012 involved repetitive heavy vibrations. He did agree that the action of lifting a jackhammer was not the usual mechanism to produce a tendon tear.
[11]Exhibit 6, pages 5-6.
CONSIDERATION
We start with reference to the claimed jackhammer lifting incident in February 2010. Both medical witnesses agree that lifting is an unlikely mechanism to produce a tendon tear. But in any event we have very considerable doubts about Mr Lee's account of the incident and whether it in fact occurred. The incident was not reported to John Holland as it ought to have been had it occurred. Mr Nathan Reibel, the work colleague who Mr Lee says was present at the time of the incident, has no recollection of it occurring. We see no reason to doubt Mr Reibel’s evidence although he was understandably vague on dates and periods of time. And we consider it likely that he has confused the time when Mr Lee attended his employment with his arm in a sling. But overall we were impressed by Mr Reibel. Ultimately though we have found it unnecessary to determine whether, in fact, there was an incident involving a jackhammer given the medical evidence.
We have a less favourable view of Mr Lee's reliability. Despite the absence of any reference in the hospitals clinical notes to a shoulder injury in the March 2010 motor vehicle accident it is obvious that Mr Lee's shoulder was badly affected by that event. The tear to the shoulder and the injuries to the mouth were the injuries reported by him to the police as was the fact that he was taking medication for his shoulder. Less than a fortnight after the accident he attended his general practitioner and gave a history of "terrible pain" in his left shoulder. He attended five sessions of physiotherapy over the next month or so. Yet in his first statement lodged in the Tribunal[12] under the heading "Previous Medical History", he said,
Prior to this accident I had not had any problems with my left shoulder at all. I had torn a cartilage in my left knee in about 1990 as a result of a football injury. I was involved in a motor vehicle accident when I was a child. There is nothing in my medical history relevant to the left shoulder injury.
It is difficult to perceive how Mr Lee could recall and make mention of a football injury from more than 20 years ago and a motor vehicle accident in his childhood without mentioning that which occurred in March 2010. No mention was made of the motor vehicle accident in a second statement[13] dated 3 August 2012 (although signed later). The motor vehicle accident was first referred to in Mr Lee's statement of 23 April 2013[14] where he claims to have returned to work after Easter and continued to work as normal. In reality he had a further week off work recovering from the motor vehicle accident.
[12]Exhibit 2, dated 4 July 2012
[13] Exhibit 3.
[14] Exhibit 4.
Mr Lee made no mention of the motor vehicle accident to Dr English, to whom he reported "no significant previous shoulder problems", or to Dr Robinson. Mr Lee told Dr Robinson of an incident involving lifting a jackhammer but otherwise denied "a history of significant past medical problems". That latter failure is the basis upon which we find ourselves unable to accept the evidence of Dr Robinson. His opinion was informed without knowledge of the significant history of complaints of shoulder pain. Dr Robinson’s later report[15] makes mention of the motor vehicle accident but says that Mr Lee “cannot recall any specific problem relating to the shoulder”. The contemporaneous medical evidence demonstrates that there were considerable shoulder problems after the motor vehicle accident.
[15] Exhibit 7.
We are satisfied that the first relevant event concerning Mr Lee's left shoulder was the motor vehicle accident. We accept the evidence of Dr English that Mr Lee's sustained a tendon tear in that motor vehicle accident and that it had been aggravated by an event, presumably in the home, involving a plug. And we accept his evidence that the fall in June 2010 involved a further, but short term and short lived, aggravation of the original tear. In our view any residual symptoms thereafter, and certainly by April 2012, were not attributable to the fall of June 2010, they were attributable to the motor vehicle accident.
By virtue of a combination of s 14 of the SRC Act and the definition of injury in s 5A of that Act John Holland is liable to pay compensation for an injury suffered by an employee that arises out of, or in the course of, the employee's employment or for an aggravation of an injury, however caused, if the aggravation arose out of, or in the course of, the employment. We are satisfied that Mr Lee's symptoms in April 2012 were not attributable to an injury that arose in that way and that they were not attributable to an aggravation of any injury suffered by Mr Lee in the fall in June 2010 which did occur in the course of his employment with John Holland. The likelihood is that the symptoms then experienced were attributable to Mr Lee's work on a compactor and that its heavy repetitive vibrations brought about the new supraspinatus tendon tear noted by Dr Marchant.
Mr Lee sought to argue that his April 2012 symptoms involved a deterioration which occurred because of the ordinary stresses and strains of living and working. Reliance was placed upon a decision of the Workers Compensation Board of Western Australia in Canale v Commissioner of Main Roads[16]. In that case the Board concluded that,
… an injury or condition recurred where it flared up either spontaneously or because of the ordinary stresses and strains of living and working, and that any consequent incapacity would be related to the original accident.
On the view we take of the medical evidence the issue does not arise in the present case however we observed that we would not regard operating a compactor with heavy repetitive vibrations as one of the ordinary stresses and strains of living or working, all the more so having regard to the evidence of a new tendon tear at that time.
[16](1982) 1 WAWCB 163; see too Australian Postal Corporation v Nadge [1994] FCA 1163.
It follows that, in each application, we will affirm in the decision under review.
EVIDENCE POST HEARING
We note for completeness that both parties, with leave, put on additional evidence after the hearing and record the circumstances under which that occurred. In the course of his final submissions, Mr Dub́e, the solicitor for John Holland, referred to a John Holland payroll record that showed Mr Lee's absence from work for two weeks after the motor vehicle accident. Through oversight, the record had not been put to Mr Lee and he had not been asked to comment on the accuracy of its contents. Following discussion with the parties the record was made an exhibit[17], the respondent was directed to lodge and serve an affidavit "setting out an explanation" of the record with Mr Lee to lodge and serve an affidavit in response thereafter. Statements, not affidavits, were lodged and served as directed. Each went beyond what was anticipated in the direction however in the absence of complaint from either party we have treated them as being evidence[18] in the proceedings.
[17] Exhibit 23.
[18]Exhibit 24, statement of David John Allen dated 5 June 2013; exhibit 25, statement of Richard Lee dated 11 June 2013.
I certify that the preceding 25 (twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr M Denovan, Member, ........................................................................
Associate
Dated 5 August 2013
Date(s) of hearing 30 & 31 May 2013 Date final submissions received 11 June 2013 Counsel for the Applicant Mr DM Bruns Solicitors for the Applicant Shine Lawyers Solicitors for the Respondent Sparke Helmore
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