Sahu-Khan and Comcare

[2006] AATA 407

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 407

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2003/99

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHAFFAAT ALI SAHU-KHAN

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member L Hastwell
Dr E T Eriksen (Member)

Date11 May 2006

PlaceAdelaide

Decision The Tribunal sets aside the decision under review.

..............................................

L HASTWELL
  (Senior Member)

CATCHWORDS

COMPENSATION – injury arising out of or in the course of employment – disease – bilateral rotator cuff tears – acromioclavicular degeneration – subacromial spurs of the clavicular joint – duties as a medical representative – lifting detailing case out of vehicle boot over a period of 30 years in employment and carrying that case – discussion of medical evidence -  did employment contribute in a material degree to either onset of condition or to an aggravation of the condition – decision set aside

Safety Rehabilitation and Compensation Act 1988 ss 4(1), 6(1), 14

Compensation (Commonwealth Employees) Act 1971

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Suters v Australian Postal Corporation (1992) 28 ALD 320
Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43

REASONS FOR DECISION

11 May 2006   Senior Member L Hastwell
  Dr E T Eriksen (Member)           

1.      Mr Shaffaat Ali Sahu-Khan (the applicant) was employed by the Commonwealth Serum Laboratories (CSL) as a medical sales representative from 7 September 1971 until his retirement in September 2000.  He developed bilateral shoulder injuries during this period.  He asserts that the current shoulder injuries from which he suffers arose out of or in the course of his employment in that they were aggravated by his employment or his employment materially contributed to them.

2.      When this matter first came before the Tribunal there were three applications to be considered, two of which related to an injury to the applicant’s left index finger.  After evidence was completed, the matter was adjourned to allow further investigation to take place.  When the matter resumed before the Tribunal on 16 March 2006, the applicant withdrew the two applications that related to his left index finger.  The Tribunal was left to determine the application for review with respect to the bilateral shoulder conditions from which the applicant suffers.

background

3.      The applicant was born on 28 August 1936 and at the date of hearing was aged 69 years.

4.      The applicant asserts that he sustained an injury to his shoulders, namely bilateral supraspinatus tears, right shoulder biceps tendonitis, right subacromial bursitis and rotator cuff syndrome as a result of repetitive lifting, pulling and pushing weight in the course of his employment with CSL.

5.      The applicant lodged a claim on 3 December 1999 with the respondent (Comcare) for the shoulder injury.  On 28 February 2000 Comcare rejected the applicant’s claim.  The applicant requested a reconsideration of the primary decision and he also sought an extension of time to have that decision reconsidered.  That extension was granted and on 4 March 2003 the primary decision was affirmed.

6.      The applicant has lodged an application for review in respect of the reviewable decision of 4 March 2003.

7.       The applicant asserts that his shoulder conditions arose out of or in the course of his employment, and are compensable in that he asserts that the duties of his employment materially contributed to the condition.

legislation

8.      The relevant legislation is contained in the following provisions of the Safety Rehabilitation and Compensation Act 1988 (the 1988 Act).

9.      In s 4(1) of the 1988 Act “injury” is defined as:

“(a)     a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;

but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”

10.     In the same section, a “disease” is defined as:

“(a)     any ailment suffered by an employee; or

(b)       the aggravation of any such ailment;

being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.”

11.     Section 14 of the 1988 Act provides as follows:

“(1)Subject 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.

(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)Compensation 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.”

12.     Section 6(1)(b)(iv) of the 1988 Act provides as follows:

“(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:…

(b)      while the employee:

…

(iv)was travelling between one of his or her places of work and another of his or her places of work;

…”

issues

13.     The issue for the Tribunal to determine in this matter is whether the bilateral shoulder conditions from which the applicant suffers arose out of and in the course of his employment.  In determining that issue the Tribunal must decide whether the applicant’s employment contributed in a material degree to the condition or to the aggravation of the condition suffered by the applicant.

the hearing

14.     It was not disputed that the applicant suffers from bilateral shoulder injuries as set out in paragraph 4 (supra). 

15.     The applicant gave evidence at the hearing.  Dr Michael Hayes, an Orthopaedic Surgeon, gave evidence on the applicant’s behalf.  Some medical evidence was tendered by consent.  Comcare called Dr Mark Awerbuch, a Rheumatologist, to give evidence.

16.     The applicant described the duties of his position.  He was a medical sales representative throughout the entire period of his work with CSL.  In his position his role was to visit doctors and pharmacists to advise them about new products and show them new products.  He carried a detailing case in the boot of his vehicle at all times which he estimated weighed 10-11 kg on average.  When he visited a doctor or a pharmacist he would take that case out of the boot usually using his left arm for lifting it out and his right arm for opening the doors and boot of the car.

17.     The applicant is right hand dominant.  Some of his evidence related to a left finger injury that he had sustained in or around the early 1990s.  This resulted in a neuroma on his left index finger which then required a number of surgical procedures over a period of time.  That evidence is now only relevant in determining how the applicant may have carried the case during those years.  His evidence was that his habit was to carry it in his left hand, but the finger problem caused him to convert to carrying with his right hand.

18.     In the mid 1990s he began to suffer significant pain in his left index finger.  Thereafter, and from around the time of his claim with respect to that finger in 1994, he began carrying his case in his right hand because of the pain in his finger.  He then altered his evidence to say that it was mainly pain in his left shoulder that caused him to commence carrying it in his right hand and that the finger pain did not stop him carrying the case in his left hand.  He described experiencing “shocking” pain in his left index finger that became worse over time and if he bumped the scar tissue it made him experience acute nerve pain. 

19.     He first noticed pain in his left shoulder in that when lifting the case with his left hand he experienced shoulder pain.  Subsequently he also experienced pain when carrying out activities with his right shoulder. 

20.     When he visited a doctor or pharmacist in the course of his duties, he would go to the boot of his vehicle (which was a sedan) and lift out his detailing case over the lip of the boot.  He would then carry the case in to visit the doctor or pharmacist.  Sometimes he would set up a display in a pharmacy and he would then be required to carry displays, boxes of samples and books.  Some of these items were heavy.  He averaged around ten visits per day to either doctors or pharmacists.  He drove many miles in the course of his duties over the years.

21.     In his statement (Exhibit A4) the applicant said that he sustained the shoulder injuries as a result of the repetitive lifting of heavy weights such as displays, boxes of samples and books.  In his evidence there was a particular focus on the repetitive lifting on a daily basis of the detailing case.  He first sought medical help for his shoulder problems in 1998.  He first lodged a claim for compensation in 1999 (T5). 

22.     By the time he first raised the issue of his shoulder injuries with his employer he had already seen two orthopaedic surgeons by way of referral from his general practitioner.

23.     Initially he did not link the shoulder pain with his employment.  On medical advice he took some leave in 1999 to see if it would improve the pain in his shoulders.  When subsequently a link was drawn between his employment and the shoulder condition by medical advisers, he sought to convert his long service leave to sick leave.

summary of the medical evidence

24.     Dr Hayes gave evidence on behalf of the applicant and Dr Awerbuch gave evidence for Comcare.  The applicant had seen a number of specialists over the years.  The Tribunal had regard to various medical reports on the file.  Medical opinion differed as to the cause of his shoulder problem and as to whether the duties of his employment could have contributed in a material degree to his shoulder condition or to an aggravation of the shoulder condition.

25.     The applicant first spoke to Dr Foenander about his shoulder problems in 1998.  Dr Foenander’s medical notes (T16/42) of the consultation of 26 October 1998 report   “L shoulder pain real bad for years worst last 6 months”.

26.     The applicant was then referred to two different orthopaedic surgeons, Dr Walters and Dr Hayes, both of whom recommended surgery for his shoulder problem.  The history of investigation of the shoulder is set out in Dr Awerbuch’s report at Exhibit R1/5.  Dr Awerbuch was also given a history by the applicant of the gradual onset of left shoulder symptoms around 1996/97.

27.     The first scan of the shoulders taken in 1998 showed a complete tear of the supraspinatus of the left shoulder and a partial tear of the supraspinatus anteriorly of the right shoulder and a complete tear in its mid portion. 

28.     X-rays taken some two months later showed mild osteoarthritis involving both acromioclavicular joints and bilateral subacromial spurs were noted. 

29.     A year later further plain x-rays showed evidence of osteoarthritis of the acromioclavicular and glenohumeral joints and narrowing of the subacromial spaces in both shoulders.  An ultrasound in the same month showed complete tears of supraspinatus in both shoulders with bone on bone impingement. 

30.     Further ultrasound of the shoulders on 3 May 2002 again showed full thickness tears of the supraspinatus bilaterally.  Impingement was seen in the left shoulder, but not the right.

31.     Dr Hayes first saw the applicant in July 2000 and provided reports dated 31 July 2000 (Exhibit A5) and 6 December 2005 (Exhibit A6).  In his first report he expressed the view that the applicant’s symptoms and the pathology in his shoulders were related to his work requirements.  In his second report he confirmed that he considered his findings consistent with a long period of repetitive lifting which he understood to be part of the applicant’s occupation as a pharmaceutical representative.

32.     In his evidence before the Tribunal Dr Hayes said that the rotator cuff tear is a separate condition to the subacromial spur, but the spur can form from repetitive use or repetitive stress, and as a consequence it irritates and can damage the rotator cuff which is situated immediately beneath it.  These are two separate but interrelated conditions.  In his view the preferable treatment is to try to remove the spurs before they damage the rotator cuff.

33.     Dr Hayes expressed the view that when the arm moves through the angle of 70 degrees up to 120 degrees, the tendon becomes compressed under the bony arch.  It was his opinion, based on the history of activities as given to him by the applicant, that in carrying out his work as a pharmaceutical representative the applicant would have been moving his arm in this range regularly thereby creating a pressure effect on the supraspinatus tendon.  In his view the applicant must have lifted his case through the arch 70 to 120 degrees on a daily basis, given the description of activities given by the applicant. 

34.     Dr Hayes said that the risk to the shoulder decreases as the angle of abduction decreases.  He considered that other relevant issues to consider were the duration of the period of activities that may have caused or aggravated the condition and the genetic background of the patient.  He said that there would be an element of natural degeneration from ageing in the applicant’s case.  He also expressed the opinion that to carry a case with the arm by the side also puts the rotator cuff under strain.  He explained that the mechanism of upward lifting is such that the muscle needs to contract to lift the arm and take the weight of the object. 

35.     Dr Hayes expressed the view that carrying a heavy briefcase throughout your working life also causes stress on the shoulder that could lead to the type of rotator cuff injury that has occurred in this case. 

36.     Dr Hayes was of the opinion that when people are regularly abducting their arm above a certain level they are at high risk of shoulder problems.   He did not accept the position put by Dr Awerbuch that a person necessarily had to work consistently above shoulder level to develop shoulder problems. 

37.     When asked whether the subacromial spurs that were present in this case could have developed because of repetitive use rather than being a product of long-term degenerative arthritis, his response was “I think there is a combination of both plus a genetic predisposition.  So it’s a multifactorial thing.” 

38.     Dr Awerbuch gave evidence for Comcare.  His report of 19 June 2003 (Exhibit R1) was before the Tribunal.  Dr Awerbuch was of the view that the degeneration of the rotator cuff in this instance was a disease of ageing.  He referred to it as “a combination of age-related degeneration”.  He was adamant that subacromial spurs and spurs or osteophytes result from arthritic changes, and that they would have increased the likelihood of a tear.  He relied on published data to support his opinion although that data was not before the Tribunal. 

39.     He was firmly of the view that the applicant’s condition was not work-related because the applicant did not need to elevate his arm or arms for prolonged periods above shoulder level. 

40.     It was acknowledged by Dr Awerbuch that the study he had considered was a study of shipyard welders, plate workers and cleaners, a group that presented with a higher than expected rate of shoulder disorders.  He disagreed with Dr Hayes’ view that the degeneration was work-related.

41.     Dr Awerbuch was of the opinion that the applicant’s symptoms had started when he was 60 or 61 years of age and had appeared gradually.  In the absence of what he referred to as a “discreet incident”, Dr Awerbuch considered that degenerative changes associated with the applicant’s age were the most significant factor with his spurs also exacerbating the problem.  He had formed the view that the only lifting done by the applicant was at waist level.  Dr Awerbuch expressed the opinion that carrying a case by the side does not put any stress on the rotator cuff, contrary to the view of Dr Hayes.

42.     A report of Dr Shumack dated 21 February 2000 was contained at T19/52.  The applicant saw Dr Shumack at Comcare’s request.  The history given to Dr Shumack by the applicant as to the duties of his employment and as to the date of onset of the shoulder pain was consistent with the applicant’s evidence and the history given by him to other doctors.  Dr Shumack commented:

“… On the balance of probability, this man’s current condition may well have developed regardless of his work. … It would be impossible to deny his employment may have accelerated the process in his left shoulder, although it was certainly not the cause of the problem. …”

He went on to say “… such activities may have accelerated the degenerative process already in train.  It is impossible to quantify this”.  He concluded that he did not regard the applicant’s employment as having been a significant aggravating factor.  Dr Shumack did not give direct evidence to the Tribunal.

discussion of other evidence

43.     When the applicant first reported his shoulder problems at work he did not believe that they were work-related (T5) and his employer gave him some assistance in managing the problems.  At that stage it appears that he had not lifted any heavy boxes or assisted office staff with any carrying or shelf stacking for at least 4-5 years.  He continued to carry his detailing case on a regular basis.

44.     He lodged his claim in December 1999 and related his shoulder injuries to work and in particular to the continual lifting of a heavy case in and out of the boot of a car over a number of years.

45.     As a direct result of the applicant’s shoulder condition, modifications were made for him in the workplace such that he was provided with a smaller case loaded to weigh less than 5 kg with a second case organised so that if required he could make two trips to the car to get the second.  The new cases were made of lightweight nylon and were top opening and the applicant was directed to reorganise his car boot so that the cases were readily accessible at the front of the boot.

consideration

46.     The applicant gave a consistent history of the tasks involved in his employment.  This was further supported by material in the T documents that the Tribunal has referred to.  At times the applicant was inconsistent in his responses.  His evidence with respect to the finger injury was unsatisfactory, and his evidence with respect to which arm he used to carry his case over the years was inconsistent.  At one stage he said that after the development of the significant pain in his left index finger, he could only carry his case in his right arm and he then altered that when it transpired that the first shoulder symptoms appeared in his left shoulder.  Nevertheless, the Tribunal accepts his evidence regarding the daily tasks of his employment, the weights that he had to lift and the onset and progression of the symptomatology in his shoulders.

47.      The applicant had an overall tendency to carry his case in his left hand for many years.  He transferred to carrying the case with his right arm after the development of the left index finger injury in the mid 1990s.  At times he had to lift boxes and displays with both arms and regardless of which arm that he was using to lift the detailing case he was also elevating both his right and left arm on a regular basis to hold the boot of the vehicle open while he took the case out.

48.     Based on a consideration of all the evidence, the Tribunal makes the following findings:

·The applicant was employed for 30 years as a pharmaceutical representative with CSL and his duties throughout that time involved visiting doctors and pharmacists on a daily basis to introduce them to new products and check on their product needs.  He would usually make up to ten visits per day.

·At all times the applicant carried with him in the boot of his vehicle a detailing case which weighed approximately 10-11 kg on average.  When he arrived at his destination he would take the case out of the boot of his sedan vehicle and into the doctor’s surgery or pharmacy.  It contained samples and advertising material.

·In the course of his duties the applicant was also required to set up displays at pharmacies and he would sometimes need to carry quite heavy boxes and displays.  He ceased having to do this sort of heavy lifting around the mid 1990s.

·The applicant is right hand dominant, but usually carried his detailing case in his left hand.  From the mid 1990s he began to use his right hand to carry the case.

·Around 1996/97 the applicant began to experience pain in his left shoulder which was initially intermittent and became gradually worse and more persistent.  He first sought medical assistance for this condition in October 1998.  At that time he had been experiencing quite bad left shoulder pain for 6 months.  He was referred for orthopaedic opinion and  surgery was recommended.  He has not pursued that option.

·Subsequent to developing left shoulder pain he developed similar problems in his right shoulder within a relatively short period.

·In the process of reaching into the boot and then lifting the case out of the boot of his vehicle, he would regularly abduct his arm between the range of 70 and 120 degrees.  He would then carry the case by his side to visit doctors and pharmacists.  The applicant was also required to lift and carry reasonably heavy boxes and displays from time to time when setting up displays and attending at pharmacies.

·The applicant has degenerative arthritic changes in his shoulders which are related to the ageing process.  He has also developed spurs on his shoulders that may have been aggravated or caused by repetitive lifting over the years.

·The right shoulder became painful sometime after the left shoulder and by 2000 when he was seen by Dr Hayes for the first time his right shoulder had become the more symptomatic of the shoulders.

·The applicant initially drew no link between his shoulder pain and his employment.  He voluntarily took leave to rest his shoulders to see if there would be an improvement.  It was only later, after discussions with his doctors, that he linked his shoulder pain and his employment and he lodged a claim with respect to his shoulder problems.

·The applicant was required to repetitively lift a detailing case or boxes in the course of his employment and he also repeatedly opened a boot requiring upward abduction of his right or left arm. 

·The applicant suffers from bilateral rotator cuff degenerative arthritis with full thickness rotator cuff tears, and acromioclavicular degeneration and a subacromial spur of the acromioclavicular joint.

consideration and application of the law

49.     In this instance it is common ground that the injury from which the applicant suffers is a disease.  The issue to determine under the 1988 Act is whether this condition was contributed to or aggravated in a material degree by his employment.

50.     To establish a nexus with employment the applicant must establish that the bilateral shoulder condition from which he suffers is either an ailment or an aggravation of an ailment that was contributed to in a material degree by his employment.  There has been considerable previous discussion as to what is meant by the concept of “contributed to in a material degree”. 

51.     In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 in discussing the use of the word “material” for the purposes of the Compensation (Commonwealth Employees) Act 1971 (the 1971 Act) the Full Federal Court said at 323:

“… the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the conditions complained of.  The causal connection must be established on the probabilities and not left in the area of possibility or conjecture.  Once a link is established, however, it matters not that the contribution be large or small.”

52.     The approach in Treloar’s case has been expressly adopted in subsequent cases under the 1988 Act, for instance in Suters v Australian Postal Corporation (1992) 28 ALD 320 at 331 Ryan J commented:

“… Although it is true that Treloar’s case was expressly limited to a consideration of the 1971 Act, in which the word ‘material’ did not appear, the case none the less contains a valuable exposition of the meaning of that word to which courts and tribunals are entitled to have regard when considering legislation containing it. …”

53.     The concept of the employment “contributing” has also been considered.  The employment need not be the sole contributing factor and can be just one of several factors contributing to the contraction of the disease, its acceleration, aggravation or occurrence (Re Welsford and Commonwealth Banking Corporation (1984) 1 AAR 43). In Treloar the Full Federal Court commented at 323:

“… once it is established that an employee in the doing of his work was exposed to ‘a state of affairs to which he would otherwise not have been exposed’ or to ‘some characteristic of or condition in which the work was to be performed’ and that such exposure was in truth a ‘contributing’ factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. … In all cases the question is whether there has been a ‘contribution’. …”

54.     It is the Tribunal’s view that by material contribution the 1988 Act looks to a contribution that is not de minimus, but the contribution need not be the sole or principle contributor to the disease or the aggravation of it.

55.     Both of the doctors who gave evidence to the Tribunal gave excellent expert medical opinion within their respective fields of expertise.  Dr Hayes is an expert in the field of shoulder surgery reconstruction and the patho-physiological bases of rotator cuff injury and degeneration.  Dr Awerbuch is a rheumatologist and epidemiologist and gave an expert opinion on the medical management of rotator cuff conditions and he reviewed some of the published research.  There was no dispute as to the existence of the condition, but the issue is one of whether employment materially contributed to the condition. 

56.     After carefully weighing all medical evidence and taking into account the duties undertaken by the applicant over 30 years, the Tribunal is satisfied, on the balance of probabilities, that the duties of his employment contributed in a material degree to the shoulder condition or to an aggravation of the shoulder condition from which the applicant now suffers.  The Tribunal was particularly mindful of the explanation given by Dr Hayes of the patho-physiology and the tenuous blood supply to the supraspinatus tendon of the musculo tendon function and the tendon insertion and how this blood supply could have been compromised by the natures of the duties undertaken by the applicant.

57.     The Tribunal accepts that his age and underlying genetic factors are also likely to have been contributing factors.  Nevertheless, all that is required is that there is a material contribution from the employment and that is found to exist in this case.

58.     For the reasons set out the Tribunal is satisfied, on the balance of probabilities, that the applicant’s employment contributed in a material way to the conditions suffered by the applicant.

59.     In the circumstances the Tribunal sets aside the reviewable decision of the delegate of 28 February 2000.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member L Hastwell and Dr E T Eriksen (Member)

Signed:         ...........J Coulthard.............................................
  Associate

Dates of Hearing  5/6/7 December 2005 & 16 March 2006
Date of Decision  11 May 2006
Counsel for the Applicant         Mr G Britton
Solicitor for the Applicant          Condello & Co
Counsel for the Respondent     Mr J Telfer
Solicitor for the Respondent     Sparke Helmore