Saad and Comcare (Compensation)
[2021] AATA 91
•4 February 2021
Saad and Comcare (Compensation) [2021] AATA 91 (4 February 2021)
Division:GENERAL DIVISION
File Numbers: 2019/4338
2019/5825
2020/8521
Re:Andrew Saad
APPLICANT
AndComcare
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:4 February 2021
Place:Brisbane
Application numbered 2019/4338 is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth). The Reviewable Decisions in applications 2019/5825 and 2020/8521 are affirmed.
............. ....................[SGD].......................................
Member R Maguire
Catchwords
COMPENSATION – Safety, Rehabilitation and Compensation Act - Liability for injury – Liability to compensate for medical treatment - whether impairment is the result of injury or degeneration – whether employment significantly contributed to impairment – temporary aggravation of ailment – decisions affirmed
PRACTICE AND PROCEDURE – Jurisdiction - Administrative Appeals Tribunal Act – time for lodging an application for review – when is an application for review lodged – whether an application can be lodged before the reviewable decision is rendered – what constitutes an application for review – Tribunal can not review decision until an application for review is lodged after that decision was rendered
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40, (1989) 167 CLR 533, 87 ALR 385
Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10, (1967) 117 CLR 19, [1967] ALR 545
Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34, (1964) 110 CLR 626, [1964] HCA 34, [1964] ALR 1031
Kennedy Cleaning (2000) 200 CLR 286
Kowalski and Repatriation Commission [2008] AATA 903
Mellor v Australian Postal Corporation (2009) 108 ALD 159, [2009] FCA 504
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468, [2016] HCA 19
Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
Prain v Comcare [2017] FCAFC 143
Re Colombo and Australian Postal Corporation [2015] AATA 10
Re Rutledge and Comcare (2011) 130 ALD 94
Salisbury v Australian Iron & Steel Ltd [1943] NSWStRp 50, (1943) 44 SR (NSW) 157
REASONS FOR DECISION
Member R Maguire
4 February 2021
INTRODUCTION
The Applicant seeks the review of two separate reviewable decisions made by Comcare (“the Respondent”) under the Safety Rehabilitation and Compensation Act 1988 (Cth) (“the Act”) to decline, liability under sections 14, 16, and 19 of the Act.
On 1 August 2019[1] the Respondent affirmed a determination[2] dated 6 June 2019, which declined liability for compensation in respect of a spine injury (claimed to have arisen out of an incident on 26 May 2016)[3] under section 14 of the Act (2019/4338 and 2020/8521 hereinafter referred to as the First Claim), on the basis that whilst the Applicant suffered an ailment, his employment was not the causation of his ailment. Specifically, the Respondent declined liability for “degeneration of cervical intervertebral disc; degeneration of intervertebral disc – thoracic; and displacement of intervertebral disc – lumbar”.[4]
[1] Exhibit 1 T48 pages 194 –200.
[2] Exhibit 1 T40 pages 183 – 184.
[3] Exhibit 1 T29 pages 93 – 100 at page 94.
[4] Exhibit 1 T48 at page 194.
On 13 September 2019[5] the Respondent affirmed a determination dated 16 August 2019[6] which denied present liability for medical expenses under section 16 and for incapacity under section 19 of the Act (2019/5825 hereinafter referred to as the Second Claim) on the basis that the Applicant’s condition, tendonitis, pain and suffering,[7] (claimed to stem from an incident on 30 January 2017)[8] was no longer related to his employment. It is convenient to deal with these in chronological sequence.
[5] Exhibit 2 T55 pages 154 – 158.
[6] Exhibit 2 T49 pages 141 – 143.
[7] Exhibit 2 PT9 page 19.
[8] Ibid.
The two matters were heard together on 19 November 2020. The Applicant appeared without representation. Ms Slack of counsel appeared for the Respondent. The Tribunal heard evidence from the Applicant, as well as Drs Journeaux and Vecchio.
FIRST CLAIM – SECTION 14
Background
In his Workers’ compensation claim form[9] dated 23 April 2019, the Applicant claimed for an injury to his spine which he said resulted from an episode which occurred nearly three years earlier at 10:00 AM on 26 May 2016 at Ballera Airport in Queensland. In the claim form, the Applicant provided information as follows.[10]
[9] Exhibit 1 T29 pages 93 – 100.
[10] Exhibit 1 T29 at pages 94, 96.
In response to the question “What tasks were you doing when you are injured?” the Applicant answered “repetitive Work, Comcare physical assessment asked me to lift 20 kg while my doctor placed me on a lifting restriction and most importantly I was hit on the head with a metal pole which compressed and stressed my back as well as giving me a big lump and compressed my skull on the left forehead”.
In response to the question “What happened and how were you injured?” The Applicant replied, “as above but because of a right shoulder injury I had to carry things with the left arm”.
In response to the question “When will you be returning to work?” The Applicant replied “No absence”.
The Applicant stated that he first sought medical treatment on 26 May 2016 from Robyn Churcher RFDS Coopers Basin Ballera.
On 6 June 2019, a determination was made denying the Applicant’s First Claim.[11]
[11] Exhibit 1 T40 pages 183 – 184.
On 22 July 2019, the Applicant filed application number 2019/4338 in this Tribunal in reliance upon the determination of 6 June 2019, which did not provide a proper statutory basis for the enlivenment of the Applicant’s entitlement to invoke the jurisdiction of the Tribunal. Neither did the determination enliven the jurisdiction of the Tribunal which is predicated upon the prior existence of a reviewable decision. These jurisdictional errors only came to light during the course of the Tribunal’s deliberations following the initial hearing of the substantive claims.
The determination of 6 June 2019 was only affirmed on 1 August 2019.[12] The Applicant’s entitlement to apply to the Tribunal, and the Tribunal’s jurisdiction to entertain his application only arose at that time.
[12] Exhibit 1 T48 at page 194.
Nevertheless, as noted above, these errors only came to light after the hearing of the substantive issues. At this point it appeared to the Tribunal that it would ultimately be necessary to dismiss application 2019/4338 for want of jurisdiction because of lack of a reviewable decision pursuant to section 42A(4) of the Act as at the date of filing of the application
In the interests of determining the application on its merits, the Tribunal re-convened the hearing, and after hearing the parties, and with their consent, granted an extension of time for the Applicant to file a further application for review of the 1 August 2019 decision which would be given a new application number and therefore ensure that the Tribunal did in fact have jurisdiction to consider the substance of the original application. The Tribunal notes that a similar course of action was taken in the matter of Kowalski and Repatriation Commission.[13]
[13] [2008] AATA 903.
At the same time, the Tribunal directed that all material and evidence considered in matter 2019/4338 be considered in this new application and that the new application be considered on the papers. The Tribunals now proceed to consider the merits of the Applicant’s review in matter 2020/8521.
Issues
The question for the Tribunal in this matter is whether Comcare is liable, pursuant to section 14 of the Act, with respect to the claimed back injury. Guidance on how to assess this issue in the context of the Act was provided by the High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [49]-[54]. Essentially, the High Court stated that the Tribunal is to “give consideration to ‘the precise evidence, on a fact by fact basis…” (Kennedy Cleaning (2000) 200 CLR 286 at 300 [39]) and then to ask certain questions in order to determine whether an employee is suffering a “disease” or an “injury (other than a disease)”. Those questions are:
(a)Does the evidence amount, relevantly, to something that can be described as an “ailment”, being a physical or mental ailment, disorder, defect or morbid condition?
(b)If so, was that state contributed to in a material [here, significant] degree by the employee’s employment by the Commonwealth?
(c)If there is not a “disease” within para (a) of the definition of “injury”, does the evidence demonstrate the existence of a physical or mental injury (in the primary sense of the word)?
(d)If so, did that injury arise out of, or in the course of, the employee’s employment by the Commonwealth?
Legislative Framework
Section 14(1) of the Act provides for compensation in respect of an injury as follows:
14 Compensation for injuries
1Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
2Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
3Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
Section 5A(1) of the Act defines “injury” as follows:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B(1) defines “disease” as follows:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
Section 4 provides the following definitions of “aggravation” and “ailment”:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The word “aggravation” in the Act has its ordinary meaning, as well as encompassing acceleration or recurrence.
The ordinary meanings of “aggravation” and “acceleration” were considered in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537, where Windeyer J said (at 593):
‘Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom Co. Pty Ltd v Semlitch (1964) 110 CLR 626 at 639.
More recently, in Re Colombo and Australian Postal Corporation [2015] AATA 10, Senior Member Taylor SC cited with approval the following passage:
In Re Rutledge and Comcare (2011) 130 ALD 94; [2011] AATA 865; at [10] Member Webb summarised the relevant principles. That summary was as follows (I have reformatted the extract, so as to conveniently include the authorities Member Webb cited):
‘[10] ... An “injury” under the Act includes a “disease”, which is defined to include the aggravation of an ailment that is significantly contributed to by the employee’s employment. The term “aggravation” is defined to include acceleration or recurrence. It is synonymous with exacerbation, in the sense that an ailment’:
● is made worse (Salisbury v Australian Iron & Steel Ltd [1943] NSWStRp 50; (1943) 44 SR (NSW) 157; Darling Island Stevedoring & Lighterage Co Ltd v Hankinson [1967] HCA 10; (1967) 117 CLR 19; [1967] ALR 545; Asioty v Canberra Abattoir Pty Ltd [1989] HCA 40; (1989) 167 CLR 533; 87 ALR 385.
● or the experience of it is ‘increased or intensified by an increase or intensifying of symptoms’: Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 at 634–5; [1964] HCA 34; [1964] ALR 1031 at 1036–7 per Kitto J).
● ‘Neither the absence of change in the underlying condition nor the temporary nature of the symptoms experienced preclude the existence of an aggravation of an ailment for the purposes of the SRC Act’ (Mellor v Australian Postal Corporation (2009) 108 ALD 159; [2009] FCA 504 at [26].)
In considering the above passage, it must be remembered that Senior Member Taylor SC and Member Webb were dealing with the current legislation which provides a “significantly contributed” test rather than a “materially contributed” test. The significant contribution test applies in the present circumstance.
Reading these provisions together, if the Applicant suffers an ailment that was aggravated or contributed to, to a significant degree by his employment, he will suffer a disease, which will in turn amount to an injury entitling him to compensation.
In considering the First Claim, the Tribunal has had the assistance of the Respondent’s Statement of Facts Issues and Contentions,[14] (“SFIC”) which sets out in paragraphs 4.2 to 4.19 the key facts in respect of the First Claim, which are adopted by the Tribunal.
[14] Exhibit 5 Respondent’s hearing bundle, R9 at pages 58 – 67.
4.2On 26 May 2016, an Incident & Hazard Form was completed which stated that one of the Applicant’s colleagues had knocked an instrument stand which fell over and struck the Applicant on the right side of the forehead (T6/56).[15]
[15] Exhibit 1 T6 pages 56 – 58.
4.3On 7 July 2017 the Applicant underwent an x-ray and CT scan of his cervical spine and head which showed the following (T7/59):[16]
[16] Exhibit 1 T7 at page 59.
(a)X-ray cervical spine – normal vertebral alignment. No bony deformity or sclerosis to indicate a previous fracture. Moderate degenerative changes are present. There is bony lipping at the endplates with narrowing of all of the discs. Further degenerative changes are seen with bony sclerosis at the apophyseal joints.
(b)CT cervical spine and head – There are moderate degenerative changes as seen in the x-ray. Further degenerative changes are present with bony sclerosis at the apophseal and median atlantoaxial joints.
(c)No fractures were identified in the skull or cervical spine. There are no intracranial injuries. Degenerative changes were seen in the cervical spine with possible impingement of the left C4 and both C5 nerve roots.
4.4By a determination dated 10 July 2017, liability was accepted under s 14 of the SRC Act for ‘contusion of face, scalp & neck except eye(s) (left)’ and ‘neck sprain’ (T8/60).[17]
[17] Exhibit 1 T8 pages 60 – 61.
4.5A workers’ compensation medical certificate dated 29 July 2018[[18]] noted the Applicant suffered from ‘right shoulder – rotator cuff tear + other ligaments derangement all operated’. The date of injury was noted as 31 January 2017. It was also noted that the Applicant had a previous injury causing coracohumeral ligament injury (T9/62).[19]
[18] This is a typographical error in the Respondent’s SFIC. The date of the certificate was 29 June 2018.
[19] Exhibit 1 T9 at page 62.
4.6In an email dated 19 September 2018 (T10/64)[20] Sam Hughes (Healthworks Allied Health) reported that the Applicant is ‘still experiencing symptoms of pain throughout his body depending on the movement produced and range in certain areas are still exhibiting some limitation (internal rotation of the shoulder in particular)… a lot of his pain is related to tension throughout his entire cervical/thoracic region’. Mr Hughes also noted that the Applicant was having issues with pain in his thoracic spine, right shoulder blade and anterior deltoid regions that ‘seem to be somewhat linked to the original injury’ (T10/63).
[20] Exhibit 1 T10 at pages 63 – 64
4.7In a workers’ compensation medical certificate dated 31[21] November 2018 (sic), Dr Hui reported that the Applicant was suffering from a ‘head injury around left frontal + cervical spines strain’. He noted that the date of injury was 26 May 2016 when ‘heavy equipment fell down to hit on his head, on left frontal and pushing his head compression on his neck’. The doctor also reported that the Applicant has experienced degenerative changes to his cervical spine discs (T11/65).[22]
[21] This is a typographical error in the Respondent's SFIC. Fairly obviously the date should be 30 November 2018, (the date recorded in the actual certificate) not 31 November.
[22] Exhibit 1 T11 at page 65.
4.8An MRI of the Applicant’s brain and 3 region spine on 13 December 2018 reported the following (T12/66):[23]
[23] Exhibit 1 T12 pages 66 – 67 at page 66,
(a)Brain – intracerebral examination is within normal limits.
(b)3 region spine – chronic degenerative changes are seen at C3/4 and C6/7 levels. Moderate left foraminal narrowing C3/4. In the thoracic region, there are degenerative disc and endplate changes T6/7 and T9/10 levels with oedema to the right of midline at T9/10. In the lumbar region there is a small broad-based annular disc protrusion extending more to the right side posterolaterally with possible irritation of the exiting right L4 root.
4.9A physiotherapy treatment notification plan dated 20 December 2018 noted that the work- related injury was ‘cervical and thoracic spine following metal pole to head’ (T15/71).[24] Current symptoms were reported as including:
[24] Exhibit 1 T15 pages 71 – 72 at page 71.
(a)pain and stiffness in cervical and thoracic spine;
(b)pain when lifting;
(c)pain with prolonged sitting;
(d)decreased thoracic range of movement;
(e)hypermobility; and
(f)tightness thoracic muscle and joint.
4.10In a report dated 23 January 2019, Dr Tomlinson commented that the Applicant ‘remains symptomatic with ongoing cervical and thoracic symptoms’ (T17/74).[25]
[25] Exhibit 1 T17 at page 74. Importantly, the quoted passage is taken from a sentence where the doctor is referring to the Applicant's self reporting. The full sentence reads "He said he remains symptomatic with ongoing cervical and thoracic symptoms." The Tribunal notes that the doctor made no arrangements for follow-up attendances or treatment.
4.11On 24 January 2019 a delegate declined compensation for pain management under s 16 of SRC Act (the Act) in relation to the Applicant’s cervical and thoracic symptoms (T18/75).[26] The delegate noted that the:
[26] Exhibit 1 T18 at page 75.
‘Medical imaging dated 13 December 2018 confirmed that you have chronic degenerative disc changes in both you (sic) cervical and thoracic spines. Comcare do not have liability for either condition. Also, on review of your claim I have been unable to find a relationship to these chronic degenerative disc changes in both your cervical and thoracic spines and your 2016 injury of tendonitis in right shoulder and elbow…’
4.12 On 13 March 2019 the Applicant provided a workers’ compensation medical certificate. Dr Hui listed the diagnosis as being ‘right shoulder – rotator cuff tear + other ligaments’. He stated that the Applicant could ‘occasionally’ lift weights up to 5kg (T23).[27]
[27] Exhibit 1 T23 at page 84.
4.13 On 14 March 2019 the Applicant provided a further workers’ compensation medical certificate. Dr Hui in that certificate reported a diagnosis ‘cervical spines and lumbar spines strain from a head injury’. Dr Hui reported a date of injury as being 26 May 2016. It was reported that the Applicant could not lift any weight up to 5kg.[28] Dr Hui commented that further evaluation, medication for pain and physio to neck and back were appropriate treatment options (T24).[29]
4.14 In a medical certificate dated 29 April 2019[30] Dr Hui reported the Applicant is unable to lift weight of 5kgs or more, is unable to bend/twist/squat and is unable to push/pull. Dr Hui noted a diagnosis as being ‘cervical spines and lumbar spines strain from a head injury’.
4.15 By letter dated 30 April 2019[31] Dr Hui provided Comcare with a copy of his clinical records. In that letter Dr Hui stated that the Applicant first attended his practice on 16 March 2017. Dr Hui stated that there is no[32](sic) much objective findings to support that there was a significant injury to his head, back and neck apart from degenerative changes of the spines.
4.16In a physiotherapy treatment notification plan dated 13 May 2019 it was reported that the specific anatomical site of work-related injury and clinical diagnosis was ‘cervical, thoracic, lumbar spine’ as a result of a ‘traumatic jolt with secondary muscular guarding’ (T39/181).[33]
4.17In a medical certificate dated 3 July 2019, Dr Hui noted that the Applicant was suffering from cervical and lumbar spine strain with pain from a head injury. He recorded a date of injury as 26 May 2016 (T43/189[34]).
4.18 On 4 December 2019[35] the Applicant was referred by the Respondent for an Independent Medical Examination with Dr Simon Journeaux (Orthopaedic Surgeon). On 23 December 2019[36] Dr Journeaux reported that the Applicant did not sustain an injury to his cervical, thoracic or lumbar spine as a result of the injury suffered on 26 May 2016. Dr Journeaux reported that the Applicant’s ‘final conditions (cervical, thoracic and lumbar spondylosis) are wholly related to non-work-related factors such as constitutional ageing’.[37]
4.19 On 9[38] March 2020 (sic) Dr Journeaux provided a supplementary report at the Respondent’s request. In his supplementary report, Dr Journeaux confirmed that:
‘[the Applicant] sustained a minor head injury with a left forehead contusion… There is no evidence he sustained an injury to his spinal column…
It is my view that any symptoms related to his spinal column that have a physical basis are purely related to underlying constitutional degenerative change.’
[28] Given the form of the statements made by the Applicant, it is presumed this was intended to read as above 5Kgs rather than up to which can be construed as below.
[29] Exhibit 1 T24 at page 85.
[30] Exhibit 1 T34 at page 118.
[31] Exhibit 1 T35 pages 119 – 164 at page 120.
[32] This is a typographical error and should read "not".
[33] Exhibit 1 T39 pages 181 – 182.
[34] This appears to be an incorrect page citation, the correct citation being Exhibit 1 T43 at page 187.
[35] Exhibit 5 Respondent’s hearing bundle, R1 at pages 1 – 5.
[36] Exhibit 5 Respondent’s hearing bundle, R2 at pages 6 – 25.
[37] Exhibit 5 Respondent’s hearing bundle, R2 at 3.5, page 23.
[38] Exhibit 5 Respondent’s hearing bundle, R4 at pages 28 – 30 at 30. The date of this report is a typographical error it was 5 March not 9 March.
On 27 May 2020, Dr Journeaux provided a further supplementary report[39] in which he reiterated that the Applicant’s employment did not contribute significantly to the onset, aggravation or acceleration of his conditions.[40]
[39] Exhibit 5 Respondent’s hearing bundle, R8 at pages 45 – 57.
[40] Exhibit 5 Respondent’s hearing bundle, R8 at page 46 at 3.1 and 3.2.
The Tribunal notes that in the body of the Incident & Hazard Form[41] signed by the Applicant on 26 May 2016, the Applicant recorded that “Fellow worker knocked instrument stand which fell over striking patient on L side forehead.” The nature of the injury sustained is stated as “Soft Tissue Injury”. No fractures are recorded.
[41] Exhibit 1 T6 at pages 56 – 58.
The report of Lime Radiology following an examination on 7 July 2017[42] recorded clinical history as follows: “Head injury one year ago with? (sic) Fractured left frontal bone. Soft tissue injury and neck injury.” It also recorded a comment as follows: “no fractures are identified in this goal or cervical spine. There are no intracranial injuries. Degenerative changes are seen in the cervical spine as described with possible impingement of the left C4 and both C5 nerve roots.” This report appears consistent with the proposition that the incident on 26 May 2016 did not cause a “fractured left frontal bone” as recorded in the clinical history, and only suffered soft tissue injury.
[42] Exhibit 20.
Consideration of First Claim
The Tribunal accepts that the Applicant was involved in an incident on 26 May 2016, and suffered a soft tissue injury in consequence as was recorded at the time. The Tribunal notes that there is no medical record of a complaint of back pain by the Applicant at the time of the incident, or a substantial period following it.
The Tribunal accepts that the Applicant does suffer some back pain, however, the available evidence supports a finding that this pain stems from constitutional degenerative changes which are part and parcel of the ageing process.
The Tribunal has considered the observation made by Dr Hui in his letter dated 30 April 2019[43] that there is “not much” by way of objective findings to support that there was a significant injury to his head, back and neck apart from degenerative changes of the spines.
[43] Exhibit 1 T35 pages 119 – 164 at page 120.
Dr Hui’s observation is very much in harmony with the evidence of Dr Journeaux. It should be noted that during his evidence Dr Journeaux corrected his report of 23 December 2019[44] to the effect that in response to question (b):
Does the Applicant suffer any underlying, pre-existing or constitutional conditions relevant to the condition(s) he suffered on 26 May 2016
to read
Yes. There is a relevant condition. He has constitutional degenerative changes in cervical, thoracic and lumbar spine which would be longstanding and which more likely than not predated the injury of 26 May 2016.
[44] Exhibit 5 Respondent’s hearing bundle, R2 at page 17.
The Tribunal also notes that in the ensuing paragraph of his report, in response to question (c):
Is the Applicant’s condition(s) you described at paragraph 3.2 (a) above and aggravation, acceleration or recurrence of any pre-existing, degenerative or underlying condition?
Dr Journeaux responded
Mr Saad did not suffer asymptomatic or pathological aggravation or acceleration of a pre-existing degenerative condition as a consequence of the injury of 26 May 2016, these conditions just existed.
In his evidence before the Tribunal – which the Tribunal accepts – Dr Journeaux was unhesitant in his view that the Applicant’s claimed back pain stems from these constitutional degenerative changes, and not from the incident of 26 May 2016.
The Applicant did not adduce any expert evidence so as to comment on, or contradict the evidence of Dr Journeaux.
The Tribunal notes that the contemporaneous records in respect of the incident of 26 May 2016 make no reference to any injury to the Applicant’s back, and that the first documented report of back pain did not arise until nearly three years after the incident.
Having regard to the totality of evidence before it, the Tribunal finds that it is unable to be satisfied for the purposes of section 5A(1) of the Act, that the Applicant suffered an injury to his back in consequence of the incident of 26 May 2016.
Accordingly, the reviewable decision in respect of the First Claim is affirmed.
THE SECOND CLAIM – SECTIONS 16 AND 19
Background
In his Workers’ Compensation Claim Form dated 28 March 2017,[45] the Applicant claimed for tendonitis, pain and suffering affecting his right shoulder and right elbow which occurred whilst he was lifting and stretching, loading heavy objects into a car. The Applicant recorded that his shoulder and elbow became sore on an awkward lift and stretch, and that he first noticed his symptoms on 30 January 2017 at approximately 8:30 AM.[46] He stated that he first sought medical treatment from a physiotherapist on 8 February 2017, and that he expected to be absent from work due to his injury for less than 12 weeks.[47]
[45] Exhibit 2 T9 pages 17 – 22.
[46] Exhibit 2 PT9 at page 19.
[47] Exhibit 2 PT9 at page 19, items 19 – 24.
By a determination dated 13 April 2017, liability was accepted under section 14 of the Act for “calcify in tendinitis of shoulder (right)”.[48]
[48] Exhibit 2 T14 pages 35 – 36.
On 12 July 2019, Comcare sent the Applicant a notice of intention to determine no present liability under sections 16 and 19 of the SRC Act with respect to the “calcifying tendonitis of shoulder (right)” Injury.[49] That notice was given effect in a determination dated 16 August 2019. Following a request for review,[50] that determination was affirmed by a reviewable decision dated 13 September 2019.[51] The Applicant lodged an Application for Review of this reviewable decision in the Tribunal on 16 September 2019. It was allocated Application Number 2019/5825.
[49] Exhibit 2 T48 at page 139.
[50] Exhibit 2 T49 at page 141.
[51] Exhibit 2 T55 at page 154.
The issue before the tribunal is whether as at 16 August 2019, and to the present date, the Applicant continues to suffer from “calcifying tendinitis of shoulder (right)” (“the shoulder condition”) amounting to an injury as defined in section 5A(1) of the Act so as to give rise to present entitlements under sections 16 and 19 of the Act.[52]
[52] Prain v Comcare [2017] FCAFC 143 at [87].
Legislative Framework
Sections 16(1) of the Act relevantly provides as follows:
16 Compensation in respect of medical expenses etc.
1Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 of the Act relevantly provides as follows:
19 Compensation for injuries resulting in incapacity
1This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
2Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE-AE
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self‑employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
On 16 August 2019, a determination was made denying the Applicant’s Second Claim.[53] This determination was affirmed on 13 September 2019,[54] and the applicant made the present application to this tribunal on 16 September 2019.[55]
[53] Exhibit 2 T49 at pages 141 – 143.
[54] Exhibit 2 T 55 at pages 154 – 158.
[55] Exhibit 2 T1 at pages 1 – 2.
On 6 June 2019, a determination was made denying the Applicant’s First Claim.[56] This determination was affirmed on 6 June 2019,[57] and the applicant made the present application to this tribunal on 7 August 2019.[58]
[56] Exhibit 1 T40 page 183 – 184.
[57] Exhibit 1 T48 at page 194.
[58] Exhibit 1 T1 pages 1 – 3.
Consideration of the Second Claim
Section 16 of the Act provides in essence, that where an employee suffers an injury, Comcare is liable to pay the cost of reasonable medical treatment. It follows that where the employee has ceased to suffer an injury, liability has also ceased.
Section 19(2) of the Act provides in essence that where an employee is incapacitated for work as a result of an injury, Comcare is liable to pay compensation for the period of incapacity, calculated in accordance with the formula the subsection provides.
The key facts set out in respect of the Applicant’s Second Claim are set out in the Respondent’s SFIC at paragraphs 4.20 to 4.40 which the Tribunal sets out and adopts.
“4.20 On 17 February 2017 the Applicant underwent an ultrasound of his right shoulder which showed medial subluxation of the biceps tendon over subscapularis. Findings suggest tear of the coracohumeral ligament, however subscapularis appears intact (T5/13).[59]
[59] Exhibit 2 T5 at page 13.
4.21 An x-ray of the Applicant’s right elbow on 13 March 2017 reported no evidence of an old healed fracture, elbow joint compartments are normal, there is a tiny amount of calcification at the site of triceps tendon insertion into the posterior aspect of the olecranon, suggesting minor calcific tendinopathy (T6/14).[60]
[60] Exhibit 2 T6 at page 14.
4.22 On 20 March 2017[61] (sic) the Applicant lodged an Improvement and Incident Details Form (T8/16).[62] The Applicant reported that he suffered an injury as a result of ‘lifting and loading batteries, AWS and 20kg waters containers into vehicle’.
[61] This is a typographical error, the correct date is 21 March 2017.
[62] Exhibit 2 T8 page 16.
4.23 On the same date the Applicant lodged a workers’ compensation form. The Applicant reported that he injured his right shoulder and right elbow as a result of ‘lifting and stretching loading heavy objects into car’. He also commented that his shoulder and elbow became sore on awkward lift and stretch (T9/19).[63]
[63] Exhibit 2 T9 pages 17 – 22 at 19. The date of lodgement of the form appears to be 28 March 2017, the date was signed by the Applicant's employer.
4.24 On 24 May 2017 the Applicant underwent an MRI of his right shoulder which showed (T17/47):[64]
[64] Exhibit 2 T17 at page 47.
‘chronic appearing change with degeneration of the right glenohumeral joint. Likely chronic coracohumeral ligament tear with no oedema seen in this region. This is associated with medial subluxation of the long head of biceps tendon as well as almost full thickness tear of subscapularis tendon. Articular surface partial thickness tear anterior fibres supraspinatus tendon. Moderate degeneration AC joint. Inferiorly projecting bony spur arising from the lateral margin of the acromion leads to a degree of impingement of the lateral arch’.
4.25 On 7 July 2017 Applicant underwent an x-ray and CT scan of his cervical spine and head which showed the following (T20/53):[65]
[65] Exhibit 2 T20 at page 53.
(a)X-ray cervical spine – normal vertebral alignment. No bony deformity or sclerosis to indicate a previous fracture. Moderate degenerative changes are present. There is bony lipping at the endplates with narrowing of all of the discs. Further degenerative changes are seen with bony sclerosis at the apophyseal joints.
(b)CT cervical spine and head – There are moderate degenerative changes as seen in the x-ray. Further degenerative changes are present with bony sclerosis at the apophseal and median atlantoaxial joints.
(c)No fractures were identified in the skull or cervical spine. There are no intracranial injuries. Degenerative changes were seen in the cervical spine with possible impingement of the left C4 and both C5 nerve roots.
4.26 A workers’ compensation medical certificate dated 19 July 2017 noted the Applicant suffered from ‘right shoulder’ injury. The date of the injury was noted as 1 January 2017 (T21/55).[66]
[66] Exhibit 2 T21 at page 55.
4.27 A workers’ compensation medical certificate dated 24 October 2017 again noted the Applicant suffered from a right shoulder injury. The date of the injury was noted as 1 January 2017 (T27/68).[67]
[67] Exhibit 2 T27 at page 68.
4.28 In a workers’ compensation medical certificate dated 18 January 2018, Dr Hui reported that the Applicant could undertake suitable duties from 20 January 2018 to 11 February 2018.
4.29 However, the Applicant had no capacity for work from 16 January 2018 to 19 January 2018 (T29/73) due to recurrent pain in his right shoulder.[68]
[68] Exhibit 2 T29 at page 73.
4.30 In a workers’ compensation medical certificate dated 29 May 2018, Dr Hui reported that the Applicant could undertake suitable duties dated 2 June 2018 to 1 July 2018. It was noted that Applicant required treatment from 2 June 2018 to 1 July 201[69] (sic)(T34/95).[70]
[69] This date should read 1 July 2018 as per the actual certificate.
[70] Exhibit 2 T34 at page 95.
4.31 In a workers’ compensation medical certificate dated 22 December 2018, Dr Hui diagnosed the Applicant with ‘right shoulder – rotator cuff tear + other ligaments derangement all operated’. The Applicant was recommended for suitable duties and medical treatment from 1 September 2108[71] (sic) to 31 January 2019 (T38/104).[72]
[71] This date should read 1 September 2018 as per the actual certificate.
[72] Exhibit 2 T38 at page 104.
4.32 Dr Tomlinson (Neurosurgeon) in a letter dated 23 January 2019 reported that the Applicant is symptomatic with ongoing cervical and thoracic symptoms (T39/105)[73]. No mention is made to the Applicant’s shoulder.
[73] Exhibit 2 T39 at page 105.
4.33 A workers’ compensation medical certificate dated 9 September 2019 (T54/153)[74] noted a diagnosis of ‘right shoulder – pain and stiffness from rotator cuff tear’. The Applicant’s capacity for work was noted as ‘suitable duties’ from 1 September 2019 to 31 January 2019. It was reported that the Applicant will require treatment from 1 September 2019 to 31 October 2019.
[74] Exhibit 2 T54 at page 153.
4.34 In a workers’ compensation medical certificate dated 13 March 2019 (T41/111)[75] Dr Hui recommended the Applicant could undertake suitable duties from 1 March 2019 to 30 April 2019 as a result of his ‘right shoulder – rotator cuff tear’ Dr Hui also reported the Applicant required medical treatment during tis (sic) period.
[75] Exhibit 2 T41 at page 111.
4.35 The Applicant underwent an ultrasound of his right shoulder on 16 April 2019 (T43/114).[76] The following was reported:
[76] Exhibit 2 T43 at page 114.
‘The long head of biceps tendon is intact but appears to be slightly subluxed medially in relation to the bicipital groove. I note this was present on a previous MRI study dating back to the 24 May 2017. The subscapularis tendon appears intact but generally quite thin, in keeping with previous near complete full thickness tear. There is also thinning of the anterior and middle thirds of the supraspinatus tendon. The infraspinatus tendon is normal. The subacromial bursa is normal in appearance and no impingement could be identified on dynamic assessment.’
4.36 On 8 May 2019 Dr Phillip Vecchio (Rheumatologist) provided a report (T45/122).[77] The report was commissioned in relation to the Applicant’s compensable right shoulder condition. Dr Vecchio commented that the Applicant stated he had experienced ‘twinges’ in his right shoulder for some time.
[77] Exhibit 2 T45 pages 122 – 134.
4.37 Dr Vecchio made the following observations[78] in relation to the Applicant’s right shoulder condition:
(a)Age-related early osteoarthritis of the right shoulder, acromioclavicular joint osteoarthritis, a laterally sloping right acromion with a subacromial spur (which predisposes to impingement/attrition of the rotator cuff) and age-related degeneration of the rotator cuff. All of these are constitutional, are independent of his employment with the Department of Meteorology and may also be associated with ageing, previous activities and sports. Most, if not all, of the definitive MRI findings are background, not occupational, pathology.
(b)However, the rotator cuff tendinopathy has been temporarily aggravated, in a material fashion, by the work performed, particularly the lifting of the heavy equipment on and off the Hilux tray. This occurred due to the necessity to elevate the arms to a greater extent, as [the Applicant’s] stature did not allow a more comfortable access to the contents of the Hilux tray. The resultant loading and awkward angle would have somewhat contributed to rotator cuff degeneration.
(c)Calcification is a constitutional condition, is unrelated to his work and does not further amplify his morbidity.
4.38 Dr Vecchio opined[79] that the Applicant’s work-related component of his right shoulder condition is reasonably considered to be resolved, noting that there are significant degenerative components to the condition. He further commented that the Applicant’s right shoulder condition was an aggravation and acceleration of a pre-existing and underlying shoulder condition.
4.39 In a workers’ compensation medical certificate dated 9 September 2019[80] the Applicant was advised he could undertake suitable duties from 1 September 2019 until 31 October 2019 and that he would require medical treatment from 1 September 2019 to 31 October 2019. The doctor advised this was in relation to ‘right shoulder – pain and stiffness from rotator cuff tear’.
4.40 On 15 March 2020 the Respondent requested a supplementary report from Dr Vecchio. On 9 March 2020 Dr Vecchio provided a supplementary report[81] in which he confirmed that the diagnosis of the Applicant’s shoulder condition remains the same: right rotator cuff tendinopathy with tears, subacromial impingement, subluxed bicipital tendon, acromioclavicular joint osteoarthritis and glenohumeral osteoarthritis. Dr Vecchio opined that the Applicant’s condition would have ‘somewhat’ been exacerbated by the lifting of the objects on/off the vehicles tray, but a reasonable and fair interpretation cannot state that the single incident is responsible for the entirety of his right shoulder symptoms.
[78] Exhibit 2 T45 at page 126.
[79] Exhibit 2 T45 at page 126.
[80] Exhibit 2 T54 at page 153.
[81] Exhibit 5 Respondent’s hearing bundle, R6 at pages 34 – 42.
The Tribunal also notes that Dr Kevin Huang, hand and upper limb surgeon reported on 2 February 2018, six months following the right shoulder cuff repair, that the Applicant was ‘doing well and…clinically, the range of movement is full range with the rotator cuff function excellent in all directions.’[82]
[82] Exhibit 5, Respondent’s hearing bundle, R10 at page 68.
The detailed evidence of Dr Vecchio was to the effect that to the extent that the applicant’s employment impacted his shoulder “This has been addressed by the surgery. In my opinion the remaining and ongoing symptoms regarding the right shoulder due to his constitutional condition”.[83]
[83] Exhibit 2 PT45 at page 127.
Dr Vecchio also observed:[84]
Surgery has been performed and it is unlikely that further surgery would be of use or is required. If any further surgery was required, in my opinion it is due to the underlying constitutional condition rather than any exacerbatory component of the work performed. As discussed, most of the condition is constitutional, temporarily aggravated by work. The ongoing issues relate to the constitutional thinning of the rotator cuff, degenerative consequences of the cartilage in the shoulder and acromioclavicular joint and subacromial spur which has been partially dealt with by surgery…
...There is no current treatment required, other than the tolerance of the symptoms as described which are now constitutional rather than work induced…
...No further treatment would be required. He will continue to experience symptoms in the right shoulder as the condition is degenerative and not treatable. He also is predisposed to degeneration of the right shoulder which is not due to work and is largely due to constitutional conditions and previous afflictions of the shoulder which are difficult to identify.
[84] Exhibit 2 PT45 at page 133.
Dr Vecchio provided a further report dated 9 March 2020[85] wherein he stated[86] “… Mr Saad would have inevitably suffered from right shoulder problems…” Moreover, Dr Vecchio stated quite powerfully “The conceivable trauma of January 2017 could not have led to all of the pathology described”.
[85] Exhibit 5 Respondent’s hearing bundle, R6 at pages 34 – 42.
[86] Ibid at page 38.
There is no evidence before the tribunal so as to challenge the opinions expressed by Dr Vecchio.
Having regard to the totality of evidence before it, the Tribunal finds that it is unable to be satisfied for the purposes of section 5A(1) of the Act that the Applicant suffered an injury to his shoulder as claimed as at 16 August 2019, or to the date of this decision.
It follows that as at 16 August 2019 to the date of this decision, the Respondent does not have liability under sections 16 and 19 of the Act.
Accordingly, the reviewable decisions in respect of the Second Claim are affirmed.
DECISION
The application with matter number 2019/4338 is dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth). The reviewable decisions of the First and Second Claims in matters numbered 2019/5825 and 2020/8521 are affirmed.
I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
...................................[SGD].....................................
Associate
Dated: 4 February 2021
Date(s) of hearing: 19 November 2020 and 11 December 2020 Date final submissions received: 4 December 2020 Applicant: By Telephone Counsel for the Respondent: Ms K Slack Solicitors for the Respondent: Ms L Howse, Sparke Helmore
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