Scaramuzzino and Australian Air Express Pty Ltd (Compensation)

Scaramuzzino and Australian Air Express Pty Ltd (Compensation) [2018] AATA 45 (16 January 2018)
Division:GENERAL DIVISION
File Numbers: 2014/4499
2015/3151
2015/5339
Re:Tony Scaramuzzino
APPLICANT

AndAustralian Air Express Pty Ltd
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:16 January 2018
Place:Melbourne

The Tribunal affirms the decisions under review.
............................[sgd]............................................
Senior Member A. Nikolic AM CSC
COMPENSATION – right shoulder injury – entitlement to compensation for medical treatment or incapacity for work – liability for psychological condition secondary to right shoulder injury – entitlement to compensation for permanent impairment and non-economic loss in respect of right shoulder injury – applicant suffering from pre-existing degenerative changes in right shoulder – no entitlement to compensation for incapacity, permanent impairment or non-economic loss – psychological condition not contributed to, to a significant degree, by employment with respondent – decisions under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth); ss 25, 43
Safety, Rehabilitation and Compensation Act 1988 (Cth); ss 4, 5A, 5B, 6, 14, 16, 19, 24, 27, 60, 64
CASES
Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753
SECONDARY MATERIALS
Dorland’s Illustrated Medical Dictionary (Saunders, 30^th ed, 2003)
Guide to the Assessment of the Degrees of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
16 January 2018
INTRODUCTION

Mr Tony Scaramuzzino is 49 years old and commenced fulltime employment with Australian Air Express (AaE) in 2001, undertaking freight handling duties at Melbourne Airport. He continued in this role after AaE was integrated into QANTAS Freight in 2013. His three applications before the Tribunal relate to a right shoulder injury suffered at work on 28 September 2010. In an incident report completed that day, Mr Scaramuzzino states his injury occurred while he was ‘lifting heavy gold mail bag off conveyor. Went to throw it to (next guy) got caught on conveyor belt…’[1] (the workplace injury). He states the type of injury sustained was a ‘sprain / sharp pain’ in the area of ‘right rear under shoulder.’
[1] T-documents for Application 2014/4499 filed 3 October 2014 (Exhibit R1), pp.7-8.
Mr Scaramuzzino has asked the Tribunal to review three decisions regarding his entitlement to compensation under the Safety, Rehabilitation and Compensation Act 1988 (the Act):
(a)Application 2014/4499 relates to AaE’s reconsidered Determination dated 7 July 2014,[2] affirming a decision on 12 May 2014, that Mr Scaramuzzino had ceased to suffer the effects of his workplace injury and was therefore not entitled to compensation for medical treatment or incapacity under sections 16 and 19 of the Act.’[3]
(b)Application 2015/3151 relates to AaE’s reconsidered Determination dated 21 May 2015,[4] affirming a decision dated 1 May 2015, that AaE is not liable to pay Mr Scaramuzzino compensation in respect of a secondary psychological condition.[5]
(c)Application 2015/5339 relates to AaE’s reconsidered Determination dated 1 September 2015,[6] affirming a decision dated 10 July 2015, that AaE is not liable to pay Mr Scaramuzzino compensation for permanent impairment in accordance with sections 24 and 27 of the Act.[7]
[2] Exhibit R1, pp.244-251.
[3] Exhibit R1, pp.230-236.
[4] T-documents for Application 2015/3151 filed 16 July 2015 (Exhibit R2), pp.268-272.
[5] Exhibit R2, pp.261-265.
[6] T-documents for Application 2015/5339 filed 18 Nov 2015 (Exhibit R3), pp.318-322.
[7] Exhibit R3, pp.300-303.
For the reasons that follow, the decisions under review are affirmed.
BACKGROUND
It has been over seven years since Mr Scaramuzzino’s workplace injury. Key aspects of the background in this matter follow:
(a)On 5 April 2011, AaE’s insurer accepted liability for ‘pain right shoulder’ until 20 May 2011,[8] encompassing the provision of physiotherapy, medical treatment, and incapacity payments.
[8] Exhibit R1, pp.28-31.
(b)Mr Scaramuzzino continued to report problems with his right shoulder. An MRI on 4 March 2011 showed minor changes only,[9] consistent with an ultrasound that had been undertaken a fortnight after his workplace injury. On 16 May 2011 his General Practitioner, Dr Nayana Garg, reported that he had a ‘full range of movements but with pain,’[10] particularly after repetitive use. He was referred for additional physiotherapy and specialist review. A series of Workcover certificates were issued until June 2011 and Mr Scaramuzzino undertook modified duties.
[9] Exhibit R1, pp.20-21.
[10] Exhibit R1, p.45.
(c)Dr Garg initially considered Mr Scaramuzzino’s injury was muscular and soft-tissue in nature, arising from repetitive shoulder movements during the previous nine years, rather than from a single acute workplace injury. In a report to AaE’s insurer dated 16 May 2011 she states:
‘At present Tony suffers from Soft Tissue Injury of Right Shoulder -(refer to MRI results). In my opinion Tony’s present condition is related to his involvement of repeated shoulder movement for last nine years. As far as his response to physio is concerned, his pain is getting better and the outcome will depend on his further response to physio…’[11]
(d)A return to work (RTW) plan was organised by AaE’s rehabilitation provider for the period May – August 2011,[12] during which Mr Scaramuzzino continued to maintain pre-injury hours in a modified role. Fortnightly physiotherapy and a home-based strength and stabilisation program were concurrently provided. The RTW Plan was subsequently extended to 25 November 2011.[13]
(e)Mr Scaramuzzino reported continuing symptoms and was referred to orthopaedic surgeon, Mr Shane Blackmore, who ordered a further x-ray. This showed ‘Minor alteration of bone texture at the greater tuberosity suggesting rotator cuff abnormality.’[14] An ultrasound-guided steroid injection was administered into Mr Scaramuzzino’s right shoulder on 27 October 2011,[15] which did not alleviate his symptoms. An operation was subsequently performed by Mr Blackmore on 27 February 2012, the operative findings of which revealed much more extensive pathology than was previously known.[16] Additional physiotherapy, household services and lawn mowing services were provided to Mr Scaramuzzino.[17]
(f)By May 2012 Mr Scaramuzzino was considered to be ‘doing well’[18] with his post-operative recovery, returning to modified duties at AaE for 12 hours per week.[19] Following specialist review in August 2012, he was reported to be ‘doing very well.’[20] Over the next 18 months his RTW plan was extended on a number of occasions commensurate with his progress. An additional 12 sessions of physiotherapy were approved during this period,[21] although AaE’s insurer determined there was no longer any therapeutic benefit from physical therapy and Mr Scaramuzzino’s physiotherapist was asked to transition him to appropriate home-based exercises.[22] On 5 March 2014 he returned to full-time hours (40 hours per week) in a desk job [23] and has remained on fulltime hours since.
(g)On 15 October 2013, based on a request from Dr Garg, AaE’s insurer approved ‘psychological counselling for injury adjustment for a period of 3 months.’[24] Mr Scaramuzzino’s RTW Plan was further extended to 31 January 2014.[25] On 14 March 2014 he underwent further specialist review with Consultant Surgeon Mr Edward Schutz.[26]
(h)On 15 April 2014 AaE’s insurer advised Mr Scaramuzzino that after considering Mr Schutz’s report, it was determined he had ‘no entitlement to further workers’ compensation benefits under sections 16 and 19 of the SRC Act’.[27] He was invited to respond to this determination by 2 May 2014, prior to a final decision being made on his claim. On 30 April 2014, Mr Scaramuzzino’s RTW Plan was further extended to 31 July 2014.[28]
(i)On 12 May 2014, AaE’s insurer wrote to Mr Scaramuzzino advising that no further evidence had been received from him and it had therefore been determined that he had ceased to suffer the effects of his compensable injury.[29]
(j)Mr Scaramuzzino’s RTW Plan was closed on 27 May 2014, with the Rehabilitation Provider noting he had ‘returned to work completing alternative duties for 40 hours per week.’[30]
(k)Through his legal representative, Mr Scaramuzzino requested reconsideration of AaE’s decision,[31] which was affirmed on 7 July 2014.[32]
[11] Exhibit R1, p.47.
[12] Exhibit R1, pp.51-55
[13] Exhibit R1, p.59.
[14] Exhibit R1, p.58.
[15] Exhibit R1, p.65.
[16] Exhibit R1, p.85.
[17] Exhibit R1, pp.106-107; pp.109-111. House cleaning / lawn mowing services were funded to March 2013.
[18] Exhibit R1, p.89.
[19] Exhibit R1, p.93.
[20] Exhibit R1, p.90.
[21] Exhibit R1, p.168.
[22] Exhibit R1, p.169.
[23] Exhibit R1, p.195.
[24] Exhibit R1, pp.172-174.
[25] Exhibit R1, pp.178-181.
[26] Exhibit R1, pp. 196-209.
[27] Exhibit R1, pp.218-223.
[28] Exhibit R1, pp.224-227.
[29] Exhibit R1, pp.230-236.
[30] Exhibit R1, pp.237-239.
[31] Exhibit R1, pp.240-241.
[32] Exhibit R1, pp.244-251.
A hearing into Mr Scaramuzzino’s applications before the Tribunal was originally scheduled for four days commencing on 5 July 2016. It was adjourned on 6 July 2016 due to the unavailability of expert medical witnesses. The Member constituting the Tribunal subsequently experienced a prolonged illness and the hearing was not completed. Mr Scaramuzzino’s applications were re-constituted to me and a hearing was conducted from 10-11 July 2017 and 13 July 2017. Mr Scaramuzzino was represented by Mr Mark Seymour, solicitor-advocate, instructed by Maurice Blackburn Solicitors. AaE was represented by Mr Roy Seit of counsel instructed by Clarke Legal. The parties made submissions regarding the July 2016 hearing, agreeing that I should have regard to the transcript of that earlier proceeding.
On 13 July 2017, due to the short-notice unavailability of expert medical witnesses, the hearing was again adjourned, resuming on 30 October 2017. Given the extended nature of these proceedings, leave was given for written closing submissions to be lodged by the Applicant on 20 November 2017 and by the Respondent on 11 December 2017. The Applicant’s reply to the Respondent’s written closing submissions was received by the Tribunal on 21 December 2017.
APPLICANT’S CONTENTIONS
Mr Scaramuzzino contends that he:
(a)suffered an acute injury to his right shoulder on 28 September 2010 when, whilst on his knees in the process of throwing a gold mail bag weighing between 15 and 17 kilograms to a fellow employee who was 6 to 8 feet away, the strap of the bag snagged on the conveyor;
(b)continues to suffer from the effects of his workplace injury, and remains incapacitated for work within the meaning of section 4(9)(b) of the Act;
(c)still requires medical treatment for his workplace injury, or, in the alternative, that the physical injury or ailment he now suffers from results from the medical treatment he received for the original compensable injury, which was reasonable to have obtained in the circumstances;
(d)suffers from a secondary psychological condition, which is a ‘disease’ as contemplated in section 5B(1) of the Act, which has been contributed to, to a significant degree, by his employment at AaE; and
(e)suffers from a permanent impairment of 11%, which will continue indefinitely.
RESPONDENT’S CONTENTIONS
The Respondent contends that:
(a)the extensive right shoulder pathology identified in Mr Blackmore’s operative findings was degenerative in nature and pre-existed Mr Scaramuzzino’s workplace injury;
(b)Mr Scaramuzzino did not suffer an acute tear of the labrum in his right shoulder as a result of his workplace injury, but instead suffered either a soft tissue injury or alternatively exacerbated pre-existing right shoulder pathology, the effects of which were temporary and have been surpassed by the natural progression of the pre-existing pathology, which is responsible for his continuing symptoms;
(c)with effect from 12 May 2014, Mr Scaramuzzino was no longer incapacitated for work as a result of his workplace injury and it is no longer reasonable for him to be compensated for medical expenses under section 16 of the Act;
(d)Mr Scaramuzzino is unable to perform his pre-injury duties as a result of his current right shoulder condition and therefore meets the definition of ‘incapacity for work’ under section 4(9)(b) of the Act. However, he is not entitled to compensation under section 19 of the Act from 12 May 2014 to the present day, given that any incapacity he is experiencing does not result from his workplace injury;
(e)in the alternative, should Mr Scaramuzzino’s incapacity be found to result from his accepted injury, the Respondent contends that since that injury he has been working on a fulltime basis in duties that accommodate his restrictions. On that basis, his weekly compensation is $0.00 when the amount per week that he is able to earn in suitable employment within the meaning of section 19(4) of the Act is deducted from his normal weekly earnings, and he therefore has no present entitlement to compensation for incapacity;
(f)Mr Scaramuzzino does not suffer a psychological condition secondary to his workplace injury; and
(g)Mr Scaramuzzino’s workplace injury has not resulted in a permanent impairment of at least 10% WPI when assessed in accordance with the Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1), and accordingly he is not entitled to compensation under sections 24 and 27 of the Act.
STATUTORY FRAMEWORK
The relevant statutory provisions are:
(a)Section 14(1) of the Act provides that subject to the balance of Part II of the Act, Comcare is liable to pay compensation ‘in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.’
(b)The word ‘impairment’ is defined in section 4(1) of the Act to mean ‘the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.’
(c)Section 4(1) of the Act defines an ‘ailment’ to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’ Relevantly, section 4(1) also provides that the words ‘injury’ and ‘disease’ have the meaning detailed in sections 5A and 5B respectively of the Act, which relevantly state:
5ADefinition of injury
(1)       In this Act:
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;
…
5B      Definition of disease
(1)In this Act:
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.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or    aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)In this Act:
“significant degree” means a degree that is substantially more than material.
(d)Section 4(1) of the Act defines ‘permanent’ to mean ‘likely to continue indefinitely.’
(e)Section 4(3) of the Act provides for further injuries resulting from medical treatment obtained for a compensable injury as follows:
(3)For the purposes of this Act, any physical or mental injury or ailment suffered by an employee as a result of medical treatment of an injury shall be taken to be an injury if, but only if:
(a)compensation is payable under this Act in respect of the injury for which the medical treatment was obtained; and
(b)it was reasonable for the employee to have obtained that medical treatment in the circumstances.
(f)Section 4(9) of the Act provides that:
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury being:
(a)       an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licenced corporation in that work or any other work immediately before the injury happened.
(g)Section 6 of the Act is a facultative provision, indicating in a non-exhaustive fashion when an injury can be considered to have arisen out of or in the course of employment.
(h)Section 16 of the Act provides for the payment of reasonable medical treatment of an employee and expenditure reasonably incurred in obtaining that medical treatment, with section 16(1) stating:
16       Compensation in respect of medical expenses etc.
(1)Where 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.
(i)Section 19 of the Act deals with payment of compensation for injuries resulting in a reduced or total incapacity to work:
19       Compensation for injuries resulting in incapacity
(1)This 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.
(2)Subject 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: ...
…
(4)In determining, for the purposes of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)Where the employee is in employment (including self-employment) – the amount per week that the employee is earning in that employment;
…
(j)Section 24 of the Act deals with compensation for injuries resulting in permanent impairment. Subsection (2) provides:
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)       the duration of the impairment;
(b)       the likelihood of improvement in the employee’s condition;
(c)       whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d)       any other relevant matters.
(k)If a person’s impairment is found to be permanent, then the degree of impairment is to be established by reference to the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Comcare Guide). Section 24 of the Act relevantly provides:
...
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6)The degree of permanent impairment shall be expressed as a percentage.
(7)Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
…
(l)Section 27(1) of the Act provides:
(1)Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(m)Section 64 of the Act authorises applications to the Tribunal for review of a ‘reviewable decision’ made by the relevant Commonwealth authority.
ISSUES FOR THE TRIBUNAL

Issues arising from Mr Scaramuzzino’s applications are:
Application 2014/4499:
(a)Did he suffer from a right shoulder condition prior to his workplace injury?
(b)What was the nature of the injury he suffered on 28 September 2010?
(c)As at 12 May 2014 to the present date, does he continue to suffer from the effects of his workplace injury?
(d)If so, to what extent was he incapacitated for work during that period as a result of his workplace injury?
(e)If incapacitated for work, what is the appropriate weekly compensation under section 19 of the Act?
(f)Does AaE continue to be liable for the cost of reasonable medical treatment obtained by Mr Scaramuzzino in relation to his workplace injury under section 16 of the Act?
Application 2015/3151:
(a)Does Mr Scaramuzzino have a psychological ailment secondary to his workplace injury?
(b)If so, was the psychological ailment contributed to in a significant degree by his employment at AaE, including as a result of the accepted workplace injury to his right shoulder?
Application 2015/5339:
(a)Has Mr Scaramuzzino’s workplace injury resulted in a permanent impairment of at least 10% Whole Person Impairment when assessed in accordance with the Guide to the Assessment of Permanent Impairment (Edition 2.1), entitling him to compensation under section 24 and section 27 of the Act?
TRIBUNAL’S JURISDICTION
Section 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) establishes the Tribunal’s jurisdiction to review certain decisions as follows:
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
Section 43(1) of the AAT Act provides:
(1)For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)       affirming the decision under review;
(b)       varying the decision under review; or
(c)       setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
The relevant enactment in this matter is the Safety, Rehabilitation and Compensation Act 1988, with Part VI describing a three part decision-making and review process, consisting of: an original decision by an authorised person; a reconsidered determination by the same agency but usually a different decision-maker; and upon application to the Tribunal, review of a reconsidered determination. Section 64 of the Act provides for applications to the Tribunal in respect of a reviewable decision, with section 60 defining the term ‘reviewable decision’ to be a decision made under subsection 38(4) or section 62. Importantly, the Tribunal does not have a general jurisdiction like many courts[33] and only claims that have previously been determined and reviewed under the provisions of the Act are capable of being referred to the Tribunal.
[33] Lees v Comcare (1999) 56 ALD 84; [1999] FCA 753 at 93; [39].
In Mr Scaramuzzino’s case, his initial application (2014/4499) and subsequent application for permanent impairment (2015/5339) relate to an acute injury he claims to have sustained on 28 September 2010.[34] These applications are not premised on aggravation of a pre-existing condition or injury. To the contrary, Mr Scaramuzzino contends in his worker’s compensation claim and during consultations with several orthopaedic specialists, that he has no past history of any problems with his right shoulder. Although evidence was presented during the hearing about the physical nature of Mr Scaramuzzino’s work at AaE over some years as an incremental contributing factor to the degeneration of his right shoulder, it is worth repeating this is not the basis of his claim for compensation. Had Mr Scaramuzzino claimed for an injury arising from the general nature of his employment - either alone or in combination with his work-related injury on 28 September 2010 - that would have been a different claim to the one determined by AaE. In view of the structured three-part decision-making and review process established by the Act, it follows that the Tribunal’s jurisdiction in this matter is to consider AaE’s reviewable decision relating to the acute injury Mr Scaramuzzino contends he suffered on 28 September 2010.
EVIDENCE BEFORE THE TRIBUNAL
[34] ‘Acute’ is defined as ‘having a short and relatively severe course.’ See for example, Dorland’s Illustrated Medical Dictionary (Saunders, 30^th ed, 2003), p.25.
Mr Scaramuzzino
Mr Scaramuzzino’s statement dated 11 March 2016 was taken into evidence.[35] I have also had regard to his evidence before the Tribunal previously constituted and his oral evidence at the most recent hearing.
[35] Exhibit A1.
Mr Scaramuzzino relayed the circumstances of his workplace injury and the medical investigations and treatment that followed. This included a steroid injection that did not alleviate his symptoms and the surgery he underwent in February 2012. He stated that his RTW required a transition to light duties and, after working for a period as a forklift driver and loading lighter packages of freight, he was tasked with operating a Manual Handling Equipment (MHE) machine to move freight. He found this work ‘depressing’ because he preferred physical work and found operating the MHE machine to be repetitive. He stated: ‘there’s no brain work…it’s just pushing two buttons…for eight hours, 10 hours just pushing two buttons.’ He said the nature of the work he undertook during this period made him feel ‘depressed about everything’ and that he was ‘of no value.’ He discussed his feelings with his general practitioner, Dr Nayana Garg, who recommended he see a psychologist. At the hearing previously constituted, Mr Scaramuzzino said he had subsequently moved to a clerical role and no longer operated the MHE. He stated that his shoulder had not improved after the surgery and he still felt ‘pain all the time,’ describing his pain as a constant low ache ‘about two out of ten.’ He submits that the pain in his shoulder gets worse when he repeatedly uses his right arm above shoulder height. As a result of his shoulder pain, he contends that he can no longer paint as much as he used to or go to the gym. Mr Scaramuzzino expressed an aversion to any medication and stated that he only took over-the-counter pain relief like Panadol or Panadol Rapid to alleviate pain in his shoulder when it was extreme. He stated he was not currently undertaking physiotherapy as he could not afford it.
Under cross-examination, Mr Scaramuzzino agreed that prior to his injury he been involved in gym activities for ‘about three times a week,’ undertaking weight training that included ‘shoulder presses.’ He also agreed that he had engaged in a martial art called Wing Chun for approximately six months, but this had been 15 years prior to his workplace injury. He agreed that he had regularly used a punching bag which hung at his home ‘for a long time,’ and that he had hurt his right wrist punching it in May 2008, requiring a consultation with his general practitioner, Dr Garg. He submits that he stopped using the punching bag in 2013.
Mr Scaramuzzino agreed that he was having ongoing family issues and financial difficulties in late 2010 – early 2011, relating to a motorcycle loan, payment of rent, child maintenance and credit cards. He attended counselling in relation to these issues and submits that he coped well with these problems. He contends it was the consequences of his workplace injury that has been the key precipitating factor affecting his mental health.
MEDICAL EVIDENCE
Right Shoulder
Mr Scaramuzzino is a right-hand dominant man who has worked in largely manual roles since leaving school. This includes employment as a machine operator and freight-handler with Ansett Airways, before commencing fulltime work with AaE in 2001. At question 26 of his compensation claim he was asked if he had ever suffered a similar injury before, either work-related or otherwise. Mr Scaramuzzino responded ‘Yes,’ and wrote ‘left shoulder’ as the only response.’[36] In subsequent consultations with orthopaedic specialists, Mr Scaramuzzino contended that he had ‘no past history of any problems with his right shoulder’ prior to his workplace injury on 28 September 2010.[37] His clinical notes from the Gap Road Medical Centre, however, detail the following consultations relating to his right shoulder in the year prior to his workplace injury:
(a)14 November 2009. Dr Garg records: ‘Still pain right shoulder. FROM but painful.’ At the hearing, Dr Garg’s stated this entry was incorrect and she was in fact referring to Mr Scaramuzzino’s left shoulder.
(b)15 December 2009. Dr Adelfo Hipolito examined both shoulders for unspecified reasons, confirming Mr Scaramuzzino had ‘full ROM – both shoulders; no weakness/pain with resisted shoulder abduction 45 degree flexion.’ A medical certificate of the same day only refers to ‘left rotator cuff syndrome’;[38]
(c)27 May 2010. Dr Garg examined Mr Scaramuzzino in relation to work-related pain, including to his ‘neck & shoulder for a few days.’ Dr Garg records he had a full range of movement in both shoulders. In a subsequent report dated 31 May 2010, she notes Mr Scaramuzzino ‘declined’ her recommendation of physiotherapy, electing instead to see his ‘brother who is a Myutherapist (sic).’
(d)1 September 2010. Dr Garg records Mr Scaramuzzino had pain in his ‘right sohulder (sic) after lifting heavy bag at work on 30/08/2010.’
(e)8 September 2010. Dr Garg records the pain in Mr Scaramuzzino’s right shoulder was ‘OK’ with a ‘full range of movement,’ enabling him to ‘resume normal duties.’
[36] Exhibit R1, p.24.
[37] Exhibit R1, p.34; p.68; pp.127-135.
[38] Exhibit A6.
Mr Scaramuzzino’s Claim for Worker’s Compensation was lodged on 28 March 2011 for ‘pain right shoulder.’[39] He submits there were no witnesses to this injury, which he describes as a ‘jarring’ sensation.[40] He states that he completed loading the aircraft and went on to complete his shift, but the pain in his right shoulder became worse and on 30 September 2010 he saw his general practitioner Dr Garg, who diagnosed ‘pain Rt shoulder, ? muscular.’ Dr Garg issued Mr Scaramuzzino with a certificate restricting heavy lifting and pulling or pushing.’[41] Subsequent WorkCover Certificates were issued until 4 June 2011. During this period Dr Garg recommended Mr Scaramuzzino undertake physiotherapy and a RTW plan was agreed.[42] Physiotherapist Mr Ben Gidley wrote to Dr Garg on 3 December 2010, advising that:
‘Tony has made some progress with shoulder rehab, however, appears to be having difficulty with instability around the shoulder. I would suggest light duties for a further 4/52. If Tony is not significantly better early next year I would suggest surgical referral / assessment.’[43]
[39] Exhibit R1, pp.22-27.
[40] Exhibit R1, p.22.
[41] Exhibit R1, p.10.
[42] Exhibit R1, pp.11-12 and pp.14-19.
[43] Exhibit R1, p.9.
An ultrasound of Mr Scaramuzzino’s right shoulder was undertaken approximately two weeks after his workplace injury and an MRI approximately five months after his injury, showing the following results:
(a)Ultrasound: 13 October 2010:[44] Radiologist Dr Clive Morris concluded: ‘There is no sonar evidence of a full thickness tear of the rotator cuff or any other significant abnormality;’
(b)MRI Scan Right Shoulder: 4 March 2011:[45] Dr Anusha Naidoo concluded: ‘…no definite evidence of a focal tear of the visualised rotor cuff. Minor degenerative change is noted in the region of the supraspinatus insertion. There is no evidence of a labral tear on this non-arthrographic study. The inferior glenohumeral ligament is intact.’
[44] Exhibit R1, p.13.
[45] Exhibit R1, pp.20-21.
A number of medical reports were subsequently raised in relation to Mr Scaramuzzino’s right shoulder:
(a)Report by Consultant Orthopaedic Surgeon, Dr David Macintosh: 12 May 2011.[46] Dr Macintosh was the first specialist to review Mr Scaramuzzino’s right shoulder, some seven months after the workplace injury. He noted in his report that Mr Scaramuzzino ‘has no past history of any problems with his right shoulder,’ but recorded an injury to his left shoulder two years previously. He assessed that Mr Scaramuzzino had suffered an acute ‘soft tissue injury’ to his right shoulder at work on 28 September 2010, which included a rotator cuff lesion and ‘probably a degree of instability in his joint, though this has not been confirmed through investigations.’ He said the soft-tissue injury was related to Mr Scaramuzzino’s employment with AaE, had been treated with physiotherapy once per fortnight, did not require analgesics, was ‘gradually improving,’ and did not stop Mr Scaramuzzino from undertaking full time work in suitable light duties. Dr Macintosh said the prescribed physical therapy was appropriate and ‘he may only need another one or two appointments.’ He estimated Mr Scaramuzzino’s symptoms would persist for ‘another two months and then should gradually increase his work activities.’ He foreshadowed that Mr Scaramuzzino ‘may have some difficulty with heavy and repetitive work, particularly at or above shoulder level,’ and recommended a graduated RTW program. Dr Macintosh concluded:
[46] Exhibit R1, pp.33-38.
‘The prognosis is that it will probably settle down completely, though there is a possibility that he may have further problems with some instability and difficulty with heavy and repetitive activities at or above shoulder level.’
(b)Reports by Orthopaedic Surgeon, Mr Shane Blackmore: 26 December 2011[47]; 27 February 2012.[48] Mr Blackmore (locum for Mr Simon Holland) examined Mr Scaramuzzino on 1 July 2011, approximately 9 months after his workplace injury. He described the range of motion in Mr Scaramuzzino’s right shoulder as ‘good,’ with forward elevation to 170º, external rotation to 45º and internal rotation to his thoracic spine. Mr Blackmore stated that there was ‘no history of…any previous problems with his right shoulder and he certainly denies this.’ He reported ‘weakness of his supraspinatus with 4+ power but the remainder of the rotator cuff was normal with 5/5 power of his subscapularis, infraspinatus and biceps.’ Mr Blackmore assessed subacromial impingement and ordered x-rays, which showed a ‘type II acromion with a normal AC joint.’ Mr Blackmore’s report also noted:
[47] Exhibit R1, pp.66-70.
[48] Exhibit R1, pp.79-80.
‘He previously had an MRI dated 4^th March 2011. His MRI showed no tear of the rotator cuff, just some minor changes within the supraspinatus tendon insertion. There was no evidence of any intra articular damage specifically to the labrum or the glenohumeral joint surfaces…’
After an ultrasound-guided steroid injection failed to alleviate Mr Scaramuzzino’s symptoms, Mr Blackmore performed surgery on 27 February 2012, which was approximately 17 months after the workplace injury. The surgery consisted of a: subacromial decompression and bursectomy; rotator cuff repair; biceps tenodesis; AC joint excision; and anterior stabilisation.[49]
[49] Exhibit R1, pp.79-80.
Mr Blackmore gave oral evidence at the initial hearing of this matter on 6 July 2016 and I have noted the transcript of his evidence. He stated that a torn labrum is usually associated ‘with a specific event’ like a ‘known dislocation’ or subluxation:
‘…but to actually tear the labrum, often people remember an exact event and the torn superior labrum…they notice that it happened with a specific event…Anterior labrum tears tend to happen more with a known dislocation, but you don’t need to dislocate the shoulder for it to come out, it can sublux…’[50]
[50] Transcript of Proceedings, 6 July 2016, p.4.
Mr Blackmore highlighted key issues in Mr Scaramuzzino’s shoulder as:
‘Essentially he’s got changes to the main players in his shoulder girdle, being the joint, the lining, the biceps, the cuff, the bursa and then some bony changes and arthritis so, essentially there’s a lot going on and if I had to be fair in summarising it, I’d say that…some of these changes have taken time to develop and then some of them are acute with the injury and when you put them all together, it’s complex in the nature of how many structures are involved.’[51]
[51] Ibid, p.5.
Mr Blackmore’s evidence is that not all of the damage in Mr Scaramuzzino’s right shoulder was attributable to his workplace injury. He considered the MRI on 4 March 2011 ‘didn’t pick up a lot of these findings…[and]…missed the labral changes’[52] in Mr Scaramuzzino’s shoulder. He contended that ‘MRIs are maybe 95% accurate’ and that an arthroscopy ‘is the gold standard’ and ‘strongest bit of evidence’ to determine actual damage within a shoulder joint. He submitted that reliance should not just be placed on the general area indicated by a patient as the source of their pain, and he often asked patients to point to the painful area with a single finger. Under cross-examination, Mr Blackmore stated that in the case of a labral tear, the majority of people have experienced a dislocation, and feel it ‘very deep and internal and they often grab at their shoulder, either at the back or front…’ When asked whether it was possible that Mr Scaramuzzino’s pain emanated from a soft-tissue injury, given that he had described the location of his pain in the incident report as under his right shoulder, Mr Blackmore replied: ‘Yes it’s possible.’ He also explained that some of the work he undertook during surgery, like a clean-up of the undersurface osteophytes and bony spurs was preventative in nature. He also performed an excision of Mr Scaramuzzino’s acromioclavicular joint (AC joint resection) to create ‘more room’ in the subacromial space, but did not seek the Respondent’s approval to perform this procedure. When asked if Mr Scaramuzzino’s workplace injury had resulted in any sort of change in pathology or injury to the acromioclavicular joint, Mr Blackmore responded: ‘well, it could but I didn’t diagnose Tony with that…’[53] There is no evidence before the Tribunal that Mr Scaramuzzino injured his AC joint on 28 September 2010, and this aspect of the surgery cannot be considered medical treatment obtained in relation to a compensable injury within the meaning of section 16 of the Act.
[52] Ibid, p.7.
[53] Ibid, p.10.
When asked if it was possible that Mr Scaramuzzino’s shoulder condition reflected pre-existing pathology, Mr Blackmore responded:
‘Obviously things are possible…But what isn’t possible is that to tear a labrum – it takes a force to do that…which means…it usually happens with an event. Whether the patient recalls or not, usually they do, they remember their shoulder dislocating…and all of a sudden they’ve got sharp pain in their shoulder…’[54]
[54] Ibid, p.10.
Mr Blackmore was also asked if Mr Scaramuzzino’s participation in Wing Chun, punching a bag, and working out with weights in the gym could have resulted in the damage in his shoulder. He agreed it could, responding: ‘Any activity outside of work…can injure the shoulder.’[55] But given the duration of time since Mr Scaramuzzino had participated in Wing Chun (2001), Mr Blackmore thought it unlikely he could have undertaken the work duties he performed at AaE with a tear in his labrum. In response to a question regarding Mr Jones opinion that Mr Scaramuzzino’s workplace injury exacerbated previous symptoms and a ‘natural progression of pre-existing pathologies,’ Mr Blackmore replied: ‘Yes, to a degree I have to agree…’[56] During re-examination, however, Mr Blackmore stated it was ‘probably’ the workplace incident ‘that caused his superior labral tear.’[57]
[55] Ibid, p.11.
[56] Ibid, pp.12-13.
[57] Ibid, p.14.
(c)Reports by Orthopaedic Surgeon, Mr Simon Holland. I have noted the medical reports of Mr Simon Holland dated 9 March 2012, 21 May 2012 and 24 August 2012. In his report dated 9 March 2012,[58] Mr Holland states:
[58] Exhibit R1, p.85.
‘Tony had quite a bit of work done in his shoulder. It is very rare to see someone with both rotator cuff pathology as well as labral problems. Aside from all of these changes, he had quite a degree of fraying of most structures of the shoulder that required debridement. These are all signs of longstanding wear and tear in his shoulder along with maybe an acute injury when he has had a dislocation or subluxation at some point in the past.’
In his report dated 21 May 2012,[59] Mr Holland considered Mr Scaramuzzino was fit to return to work on light duties with some restrictions. In his report, dated 24 August 2012, which was six months after Mr Scaramuzzino’s surgery, Mr Holland states:
[59] Exhibit R1, p.89.
‘On examination he has no particular joint line tenderness. His forward elevation is to 160°, external rotation of 60°, internal rotation to his waist and impingement signs are normal. His rotator cuff and biceps are functioning well.
I think he is doing very well…It may be that his smoking has delayed some of his recovery.’[60]
[60] Exhibit R1, p.90.
(d)Clinical Notes: Dr Garg 2011 - 2014. Dr Garg wrote to AaE’s insurer on 16 May 2011, stating that Mr Scaramuzzino was suffering from a ‘Soft Tissue Injury of Right Shoulder -(refer to MRI results)…As far as his response to physio is concerned, his pain is getting better and the outcome will depend on his further response to physio and his return to work.’[61] Dr Garg also records the aftermath of his surgery on 27 February 2012, particularly in relation to pain management, as well as the provision of gardening and cleaning services during his recovery. By May 2014 Dr Garg notes Mr Scaramuzzino was undertaking alternative duties and fulfilling his pre-injury hours. Dr Garg recorded on 3 May 2014 that he was ‘managing well with job.’ Following a consultation on 4 October 2014, Dr Garg recorded he was undertaking ‘full hours on light duties’ and had been ‘off Work Cover since 2 June 2014,’ which Mr Scaramuzzino was disputing.
[61] Exhibit R1, p.47.
(e)Report by Senior Consultant Surgeon Mr Peter Scott: 13 March 2013.[62] Mr Scott’s report states in part:
[62] Exhibit R1, pp.127-135.
‘Postoperatively he was given physiotherapy and painkillers and by May 2012 Mr Holland thought he was fit to return to light duties…
He is now working five hours per day, four days per week, performing light duties operating machine which moves large containers of freight from one area to another before they are loaded onto the aircraft.
He states the job is easy to perform as there is no physical effort required apart from pressing buttons to operate the machinery.
He is also receiving physiotherapy on a continuing basis once per week, which is maybe producing some minimal improvement.
No other treatment has been prescribed. He is not taking any medication.
…
He has persistent pain and discomfort in the right shoulder…
…
I would accept the changes noted at the time of operation, which include lesions of the labrum and the biceps and the rotator cuff and the acromion, have been initiated as a result of the incident which occurred on 28.09.2010. There was no evidence of any past history of a similar problem.
…
I believe on the balance of probabilities that ongoing symptoms relate to his employment with Australian Air Express.
…
There was no evidence of any pre-existing congenital, constitutional or underlying condition.
…
I believe the ongoing symptoms relate to the complex pathological changes noted at the time of operation on 27.02.2012.
…
The claimant is not fit for work of the type that he was engaged in prior to the accident on 28.09.2010, but he is perfectly fit to carry out light work that requires reaching up or reaching out or pulling or pushing against resistance, lifting no more than about 5kg in weight.
…
He is able to work full-time on restricted duties
…
I believe the worker is able to work 38.95 hours per week on his present job, operating a machine which moves large cartons of freight from one place to the other.
(f)Mr Scott gave evidence at the hearing on 30 October 2017 and was cross-examined. He stated that Mr Scaramuzzino had denied having any history of right shoulder complaints at their consultation and that the history he took from him was inconsistent with Mr Scaramuzzino’s description of the symptoms arising from his injury in his initial incident report (pain was reported at ‘right rear under shoulder’ in the incident report). Moreover, Mr Scott said the significant operative findings in February 2012 did not correlate with the radiological findings before the operation and were ‘not consistent with a single injury described by the worker.’ He said the operative findings were more indicative of ‘recurring dislocation or subluxation of the right shoulder’ over a period of years. He said the findings noted by the surgeon were consistent with dislocation or subluxation, resulting from activities like repetitive reaching above the head and pulling / pushing against resistance – classically the sort of activities undertaken by United States basketball players. Mr Scott said he accepted the opinion of the radiologist who interpreted the MRI in March 2011, which did not show the significant pathology evident in the operative findings. He said an MRI was an ‘excellent method’ to identify labral tears or Hill Sachs lesions in the shoulder and the MRI had not shown that prior to surgery.
During cross-examination, Mr Scott agreed that MRI’s may miss one in twenty labral changes, but in any event, he did not consider it probable that the damage to Mr Scaramuzzino’s right labrum or the Hills-Sachs lesion had resulted from the incident he described at work. When asked whether Mr Scaramuzzino’s other duties at AaE may have caused the damage to his labrum, Mr Scott disagreed, stating he would ‘have complained of something before this [workplace] incident…I think it is unlikely… To tear that [the labrum] requires considerable force…’ When asked about his previous assessment that ‘lesions in the labrum and the biceps and the rotator cuff and the acromion’ were linked to the workplace incident in 2010, Mr Scott stated that this was based on his acceptance of Mr Scaramuzzino’s denial of any previous problems with his right shoulder during their consultation. But in any event, he was concerned that the pathology identified during Dr Blackmore’s operation in 2012 was inconsistent with the history he had taken from Mr Scaramuzzino and the MRI findings. He considered that the surgical findings were consistent with significant, pre-existing injuries that had been ‘going on for some time… years, in [his] opinion.’ He said that, at best, the incident Mr Scaramuzzino described at work may have been ‘an aggravating factor’ of a long-standing and pre-existing right shoulder condition.
(g)Report by Sunbury Physiotherapy Clinic: 21 December 2013.[63] I have noted the report by physiotherapist Mr Thanh Tran. In particular it states the following about the location of Mr Scaramuzzino’s injury:
[63] Exhibit R1, pp.184-186.
‘…He had an immediate sharp pain in his R) scapula, however, was able to continue his occupational duties. He continued to experience R) scapula pain after a day of work but would subside with rest at night. He continued to do this for a month prior to presenting to Sunbury Physiotherapy Clinic.’
(h)Report by Consultant Surgeon, Mr Edward Schutz: 1 April 2014.[64] Mr Schutz’s report states in part:
[64] Exhibit R1, pp.196-211.
…
‘The initial Ultrasound was normal some 2 weeks post-accident when any possible inflammation would have been shown. The right shoulder MRI scan…showed degeneration only. At the operation, almost 2.5 years after the reported incident, the findings were those of extensive pre-existent pathology. None of the specific abnormalities listed in the operation findings were likely to have been caused or contributed to by the 2010 accident. In particular there was no evidence of a rotator cuff tear.
…
Considering all of the information - the nature of the incident, and the evidence of pre-existent pathology in the operation findings - it appears that the shoulder had significant pre-existent multiple degenerative pathology. A shoulder with significant pre-existent pathology of this type is very vulnerable to symptoms which often developed de novo. Initial symptoms after the relevant incident at work were in regions of the shoulder girdle not involving the shoulder joint - and there was never any reference to typical radiating symptoms which tend to extend into the upper arm. The radiology indicates that there was never any evidence of acute injury or inflammation.
Mr Schutz concluded there was no acute injury to Mr Scaramuzzino’s right shoulder joint as a result of the workplace injury, which, on his description of the symptoms, involved the right shoulder girdle muscles in soft tissue regions, but did not relate to the shoulder joint itself. Mr Schutz considered ‘that the underlying pathology was consistent with pre-existent degeneration,’ and it was likely his ‘current right shoulder condition is as it would have been, had the 28/09/2010 incident not occurred.’ Moreover, Mr Schutz considered that ‘given that Mr Scaramuzzino worked in relatively light duties it is considered highly unlikely that work beyond 2010 has contributed to the progression of the already pre-existent pathology in the right shoulder.’
Mr Schutz gave evidence at the hearing on 30 October 2017 and was cross-examined. He considered that the pathology observed during Mr Scaramuzzino’s right shoulder surgery was pre-existing and any injury he suffered at work on 28 September 2010 was soft-tissue in nature. He stated that Mr Scaramuzzino’s presentation to his GP with a right shoulder complaint on 1 September 2010 may have been indicative of a ‘vulnerable right shoulder.’ Mr Schutz submitted that the mechanism of the injury described by Mr Scaramuzzino would not have disturbed his right shoulder joint and the symptoms initially described in the claim and medical records related to the general muscular areas around the shoulder and not the joint itself. He contended that if Mr Scaramuzzino had suffered an acute injury at work, inflammation would have been evident in the ultrasound results on 13 October 2010. Mr Schutz said there was also a marked difference between the results of the MRI scan in March 2011 and the operative findings approximately 17 months after Mr Scaramuzzino’s workplace injury. He stated that the surgeon had found pathology not previously been seen, but the nature of the operative findings was degenerative and not acute. Mr Schutz said given the presence of a Hills-Sachs lesion in Mr Scaramuzzino’s right shoulder, it was highly probable that he had suffered a previous dislocation, which had not occurred as a result of the workplace incident.
During cross-examination, Mr Schutz maintained that the mechanism of Mr Scaramuzzino’s injury did not put strain on the labrum and that even if the bag he was throwing had become snagged mid-throw, any damage given the direction of forces in play would have been on the lateral side (outside of shoulder) and not the medial (inside) of the shoulder. He said it was the arm and surrounding muscles that may have come to a sudden stop, but the mechanism and direction described would not have either caused Mr Scaramuzzino’s shoulder to dislocate or result in the subsequent operative findings. Mr Schutz submitted that the attribution of the operative findings by the surgeon to Mr Scaramuzzino’s workplace injury was a ‘superficial assessment’ that he disagreed with and those findings were not apparent in the earlier ultrasound or MRI of Mr Scaramuzzino’s right shoulder. In response to a question as to whether MRI’s always pick this sort of damage up, Mr Schutz agreed that ‘nothing is 100%.’ When questioned about whether other workplace duties may have affected Mr Scaramuzzino’s shoulder, such as pushing and pulling large baggage containers weighing between 1000-1500kg, Mr Schutz replied that the containers were on rollers, were moved by several people and any mechanism of injury was dependent on the posture and position of those moving the containers. He said that while it was possible ‘in an extreme case’ to tear a labrum performing these types of duties, in the circumstances of this case, he considered it ‘highly improbable.’
(i)Report by Orthopaedic Surgeon, Mr M.A. Khan: 12 May 2015.[65] Mr Khan’s report states in part:
[65] Exhibit A2.
‘On the balance of probabilities, Mr Scaramuzzino has sustained an injury during the course of his occupation with Australian air Express under the SRC Act the injury includes aggravation, recurrence and acceleration of a pre-existing condition.
…
On the balance of probabilities, Mr Scaramuzzino’s employment has represented a significant contributing factor to the acceleration or aggravation of pre-existing early degenerative changes in the joint which was asymptomatic previously.
…
I consider that…your client, at the time of my examination was shown to be continuing to suffer from the condition which arose during the course of his employment and which was significantly contributed to by his employment with Australian air Express.
…
I consider Mr Scaramuzzino is presently fit for suitable employment within his limitations on a full-time basis with the restriction mentioned in the paragraphs above.
…
Mr Scaramuzzino continues to require reasonable medical treatment in relation to the condition diagnosed above. Such treatment is likely to continue for an indefinite period.
…
The long-term prognosis is not favourable as the possibility of his deteriorating with the passage of time, needing to see his specialist and requiring further surgery cannot be ruled out.
…
In my opinion, Mr Scaramuzzino’s injuries have substantially stabilised. His symptoms are likely to continue indefinitely irrespective of any treatment recommended.
…
As his condition has substantially stabilised I am pleased to enclose my assessment in accordance with Comcare Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1…
(j)I have had regard for Mr Khan’s oral evidence at the initial hearing of this matter on 5 July 2016, which is contained in the Transcript.[66]
(k)Report by Orthopaedic Surgeon, Dr Ian R. Jones: 21 May 2015.[67] Dr Jones notes in his report that Mr Scaramuzzino’s right shoulder was described as ‘stable’ after his arthroscopic surgery in 2012 and that he was off work for three months, returning progressively on light duties for four hours per day, eventually increasing to six and then eight hours per day. Dr Jones notes Mr Scaramuzzino’s told him he has remained on light duties since and ‘does not engage in any physical work.’ At the time of their consultation, Dr Jones notes Mr Scaramuzzino was not taking any analgesic or anti-inflammatory medication, or having any physical therapy. Dr Jones report states in part:
‘Mr Scaramuzzino denied any previous history of right shoulder injury or complaint prior to 28.09.2010…
…
An MRI scan report of the patient’s right shoulder dated 04.03.2011 concludes some minor degenerative change in the region of the supraspinatus tendons. There was no evidence of any labral tear in this investigation nor the extent of the findings described Mr Blackmore’s operation report of 27.02.2012. My diagnosis of this patient’s condition based on the x-rays and the operative findings was of a previously injured right shoulder consistent with having suffered a previous dislocation or subluxation of the joint together with a partial tear of the supraspinatus tendon. Appropriate surgery has been undertaken for this condition.
…
Given the described circumstances of this patient’s injuries, I am unable to equate the operative findings described and corrected by Mr Blackmore to the incident reported by the patient…The work incident as described by the patient had the capacity to exacerbate previous instability symptoms in this patient’s right shoulder and possibly exacerbate a small tear in the supraspinatus tendon…
…
I do not believe that there is any ongoing relationship between the patient’s current right shoulder complaint and the injury of 28.09.2010 or his work in general.’
[66] Transcript of Proceedings 5 July 2016, pp.49-70.
[67] Exhibit R4.
Depression

On 26 March 2015, Mr Scaramuzzino lodged a new claim (via his solicitors) with AaE’s insurer to include a secondary psychological condition. Key aspects of the history of Mr Scaramuzzino’s claimed condition follow:
(a)Clinical Notes: Gap Road Medical Centre May 2010 – October 2014.
(i)27 May 2010. Dr Garg notes Mr Scaramuzzino had separated from his wife and offered him a mental health plan, which he declined. Mr Scaramuzzino states in his oral evidence that he separated from his wife in late 2009.
(ii)31 August 2010. Dr Garg notes her offer to Mr Scaramuzzino of a mental health plan and anti-depressants for unspecified reasons, which he declined.
(iii)19 October 2010. Dr Garg notes: ‘Poor sleep. Depressed mood. Suicidal thoughts. No plans.’
(iv)10 November 2010. Dr Garg notes: ‘Depressed mood. No suicidal thoughts. No plans. Low self esteem. Panic attacks.’ Dr Garg referred Mr Scaramuzzino for a Mental Health Assessment to be undertaken by Mr Peter Pinney at Sunbury Health Centre ATAPS Psychology Service. She states in the referral that Mr Scaramuzzino presented with a ‘history of Anxiety / Depression’ and notes he was:
‘living with friend, divorced for 2yrs…has financial stress, work related stress, has no patner (sic) at present.’
(v)16 December 2010 – 27 June 2011. A medical record from Psychologist Mr Peter Pinney shows that Mr Scaramuzzino attended counselling at the Sunbury Community Health Centre for approximately six months, completing two rounds of counselling, each comprising six sessions. The file was closed on 27 June 2011 after efforts to contact Mr Scaramuzzino were unsuccessful. Mr Pinney states he personally met with Mr Scaramuzzino on two occasions, focussing on ‘simple techniques to help manage his anxiety’ and to ‘address sources of depression.’ A record within the clinical notes confirms Mr Scaramuzzino also attended financial counselling on 21 February 2011 with Broadmeadows Uniting Care, receiving advice about managing financial pressures arising from his credit card debt, motorbike loan, Optus and other debts, child support commitments, and living expenses. The Clinical Notes also record Mr Scaramuzzino was seen by Casework Counsellor Patricia Binks on 1 April 2011, with their consultation focussed on dealing with financial pressures, including his credit card debts and motorbike debt with Yamaha Finance.
(vi)8 May 2012. Dr Garg notes she offered counselling to Mr Scaramuzzino in relation to his financial problems, but that he declined a Mental Health Plan and anti-depressants.
(vii)28 September 2013. Dr Garg notes: ‘…also advised to see psychologist, stress at work…Poor sleep. Depressed mood. No suicidal thoughts. Low self esteem.’
(viii)19 February 2014. Dr Garg notes: ‘company has been bought by Quantas (sic) unsure of job may loose (sic), has to support son for education pain in right shoulder stressed will be seeing counseller (sic) through work Trish…declined anti depressant.’
(ix)5 March 2014. Dr Garg notes: ‘call from company wants Tony to work 40hrs a week on desk job. Disc with Tony would like to give try, at present operates Muchine (sic) managing well doing 32 hrs. if does more hurts his shoulder…still declined anti depressant under psychologist.’
(b)Referral to Dr Melzer: Feb – Oct 2014. In February 2014, the QANTAS Injury Management Adviser made an appointment for Mr Scaramuzzino to see Clinical Psychologist Dr Patricia Melzer. Dr Garg subsequently referred Mr Scaramuzzino to Dr Melzer on 16 August 2014 for six psychological sessions under the Better Outcomes in Mental Health Care initiative, to address his depression and anxiety, noting he was:
‘living with son 19 yrs old, divorced 5yrs…work related stress was under WC now rejected. Lonely no patner (sic) finacial (sic) issues.’
In her report to Dr Garg dated 26 September 2014, Dr Melzer noted that Mr Scaramuzzino’s depressive symptoms had ‘developed and worsened as a consequence of his work injury and his current situation.’ She opined that Mr Scaramuzzino ‘is likely to benefit from antidepressant medication.’ In a subsequent clinical record dated 4 October 2014, Dr Garg notes: ‘request for antidepressant… working full hours on light duties off work since 2/6/2014 following last certificate under dispute WC to r/v 2/52.’
(c)Report by Psychiatrist Dr Michael Epstein: 15 October 2015.[68] Dr Epstein provided a detailed medical, family and work history of Mr Scaramuzzino, who he examined on 14 October 2015. He states the only medication Mr Scaramuzzino was taking at the time for his shoulder pain was ‘Panadol, taking two to four tablets once per week…He was experiencing pain but seemed able to cope with that.’ Dr Epstein’s report states in part:
[68] Exhibit A3.
‘… As a result of chronic pain, discomfort and disability he has developed a chronic Adjustment Disorder with mixed anxiety and depressed mood. He has had psychological counselling and use of antidepressant medication with limited benefit.
There appeared to be no other factors that could have contributed to his current mental state apart from this work injury. He had been concerned about the breakdown of his marriage but has since developed an amicable relationship with his ex-wife and has a good relationship with his children. His mental state is dependent on the situation with regard to his right shoulder and right arm and since there has been no real change for some time there is unlikely to be any real improvement in his mental state and hence his prognosis for improvement with regard to his mental state is poor.
On the balance of probabilities his employment was a significant contributing factor to the onset of his current mental state and the symptoms arising from the work injury maintain his mental state.
His mental state does not interfere with his capacity for employment. He does not appear to require any further psychological or psychiatric treatment at present.
His level of impairment has been determined using the Comcare Guide to the Assessment of Degree a Permanent Impairment (Second Edition).
He has a psychiatric impairment of 10%. This involves:
Despite the presence of more than one of the following employee is capable of performing activities of daily living without supervision or assistance:
·reactions to stress source of daily living with minor loss of personal or social efficiency;
·lack of conscience directed behaviour without harm to community or self;
·Minor distortions of thinking.’
(d)Dr Epstein gave evidence at the initial hearing of this matter on 6 July 2016, assessing that the development of Mr Scaramuzzino’s adjustment order was because of his pain, the lack of success in moderating that pain through treatment, and a significant change in the work he had to undertake as a consequence, which was ‘robotic in nature.’[69] He contended that other factors, like childhood experiences with domestic violence, the break-up of his parent’s marriage, and his mother’s dementia diagnosis were not ‘particularly noticeable’ and ‘he was able to get on with his life.’[70] In terms of the break-up of Mr Scaramuzzino’s marriage and financial problems, Dr Epstein opined that people worry about those things, but they ‘don’t necessarily lead to significant levels of depression.’[71] Similarly, he said Mr Scaramuzzino had been treated for his Crohn’s Disease, which had settled down and not re-occurred. Dr Epstein submitted that in October 2013 Mr Scaramuzzino had been referred for three months of psychological counselling relating to his adjustment to his shoulder injury and coping with his pain. Dr Epstein disagreed with Associate Professor Mendelson’s opinion that Mr Scaramuzzino did not have a diagnosable mental disorder. Under cross-examination, Dr Epstein agreed that to qualify for a diagnosis, it was necessary to have a requirement for treatment or psychological counselling. He also agreed that his consultation with Mr Scaramuzzino in October 2015 reflected his mental health at that time, and he didn’t think Mr Scaramuzzino ‘would benefit a great deal from psychological or psychiatric treatment…’ and ‘didn’t want to continue taking the antidepressant medication,’[72] but that he nevertheless considered Mr Scaramuzzino had a psychiatric disorder. Dr Epstein agreed that after Mr Scaramuzzino’s left shoulder problems in 2006 and 2009, which also resulted in restricted duties for a period of time, he did not exhibit the same psychological symptoms that occurred after his right shoulder injury. Dr Epstein also agreed that he had recorded Mr Scaramuzzino had trouble sleeping in part because of concerns with finances and job security and that he had become ‘more isolated’ in response to a range of factors impacting his personal circumstances.
[69] Transcript of Proceedings, 6 July 2016, p.17.
[70] Ibid.
[71] Ibid, p.18.
[72] Ibid, p.22.
(e)Report by Consultant Psychiatrist, Associate Professor George Mendelson: 30 October 2015.[73] Associate Professor Mendelson provided a detailed medical, family and work history of Mr Scaramuzzino, who he examined on 14 October 2015. He states that Mr Scaramuzzino advised him ‘he no longer has any treatment for his right shoulder…’ and told him he ‘takes two Panadol perhaps three times per week to ease the pain in his right shoulder.’ Associate Professor Mendelson states that:
[73] Exhibit R3.
‘Mr Scaramuzzino was resentful and aggrieved when…assigned to work on the “MHE machine,” and that “all the return-to-work employees go there” and that operating the MHE machine is “mindless meaningless work…He told me “I could do office work, and added “I’m pretty good with computers.” Mr Scaramuzzino said that he would like to do “IT work maybe.’
Associate Professor Mendelson’s concludes:
‘… [I]n my opinion he does not have a diagnosable mental disorder.
The basis for my opinion that Mr Scaramuzzino does not have a mental disorder is that his emotional symptoms and my observations on mental status examination do not, in my view, meet the diagnostic criteria or threshold for a finding of a specific psychiatric disorder.
At the same time I accept and acknowledge that Mr Scaramuzzino has experienced and reported some mild emotional symptoms, and I consider that these emotional symptoms have been due to an understandable psychological reaction to his physical complaints and his current situation at work. It would appear that he had benefited from having been able to discuss his concerns with a psychologist, as well as from having been taught a method of reducing anxiousness by using a “breathing technique.”
There is clearly no indication of loss of work capacity as the result of any emotional symptoms or psychiatric impairment. While Mr Scaramuzzino expressed dissatisfaction with the nature of his current light duties position, he indicated that he is essentially working full time within the restrictions of his physical condition.
… In my view there is no indication that Mr Scaramuzzino requires treatment for any specific psychiatric condition or psychiatric symptoms under the care of either a consultant psychiatrist or a clinical psychologist, albeit given his ongoing concerns about his physical condition and lack of job satisfaction he probably would obtain emotional support from being able to discuss these concerns with his general practitioner or another appropriate health care provider.’
Dr Garg’s evidence at the hearing was that she had first diagnosed Mr Scaramuzzino with a depressed mood in October 2010, which she attributed to ongoing family issues, but that the pain in his shoulder was making things worse. Dr Garg contended that Mr Scaramuzzino was coping with the family and financial issues, and that it was specifically the physical issues arising from his workplace injury that was the precipitating factor for referring him to Mr Pinney in November 2010. That was because his shoulder pain was disturbing his sleep and causing his depression. Dr Garg said her referral of Mr Scaramuzzino to Ms Melzer was made for a similar reason.
TRIBUNAL CONSIDERATION
Right Shoulder Condition
I was troubled by Mr Scaramuzzino’s contention in his worker’s compensation claim and during consultations with orthopaedic specialists that he had no past history of right shoulder problems prior to his workplace injury on 28 September 2010. This is contradicted by Dr Garg’s clinical notes, which show he suffered right shoulder pain on 1 September 2010 after ‘lifting a heavy bag at work.’ Her notes also record that by 8 September 2010 Mr Scaramuzzino was able to resume his normal duties.
At the hearing Mr Scaramuzzino could not explain why he had noted a left shoulder injury from 2006 and 2009 in his worker’s compensation claim, but did not include a right shoulder injury sustained a month prior to his workplace injury. I find that his advice to Dr Macintosh, Mr Blackmore, Dr Jones and Mr Scott that he had no past history of right shoulder problems was clearly erroneous. During the hearing Mr Scott opined this meant Mr Scaramuzzino was either a ‘poor witness or he is forgetful.’
Mr Scaramuzzino’s description of the location of symptoms following his workplace injury is inconsistent. In the OHS Incident Report and Investigation Form[74] he identifies the injured area as ‘right rear under shoulder.’ Similarly, his physiotherapist records the initial location of injury and symptoms as ‘an immediate sharp pain in his R) scapula.’ Those descriptions are inconsistent with Mr Blackmore’s view that the sort of injuries he repaired would usually be accompanied by ‘sharp pain’ felt ‘very deep and internal’ in the shoulder. Mr Scaramuzzino’s evidence at the hearing was that the pain he experienced at the time of his injury was in his shoulder joint and surrounding area.
[74] Exhibit R1, pp.7-8.
I note the consistent evidence of a number of orthopaedic specialists that the lesion in Mr Scaramuzzino’s right shoulder can only arise from a previous dislocation or subluxation. Mr Scott, Mr Schutz, Mr Holland and Dr Jones considered that the extensive damage revealed by Mr Blackmore’s operative findings was not caused by the single workplace injury event described by Mr Scaramuzzino on 28 September 2010. I accept their collective opinion, which is irreconcilable with Mr Scaramuzzino’s evidence of no previous injury to his right shoulder. I also accept Mr Schutz’s evidence that the forces in play as Mr Scaramuzzino threw a mail bag from his left to his right below shoulder level, would have put strain on the lateral (outside) and not the medial (inside) structures of his shoulder. If a bag had become snagged mid-throw as Mr Scaramuzzino contends, I accept Mr Schutz’s evidence that this event would not have caused a dislocation or subluxation of the shoulder, but put strain on the arm and surrounding muscles. In any event, I consider it more likely than not that the extent of damage contended by Mr Scaramuzzino would have been revealed in the radiology undertaken at the time – either an inflammatory response identified by ultrasound, or more prominent MRI findings.
I am satisfied on the evidence that Mr Scaramuzzino’s workplace injury on 28 September 2010 was soft tissue in nature. Consistent with the opinion of consultant orthopaedic surgeon Dr Macintosh in May 2011, this injury was appropriately treated at the time with physiotherapy, did not require analgesics, was ‘gradually improving,’ and did not stop Mr Scaramuzzino from undertaking full-time work in suitable light duties. This diagnosis is supported by the radiological evidence, the opinion of Dr Garg on 16 May 2011, and the subsequent opinions of Mr Schutz, Mr Scott and Dr Jones.
The available evidence does not support a finding that an acute workplace injury on 28 September 2010 caused the extensive right shoulder pathology repaired by Mr Blackmore in February 2012. I accept the evidence of Mr Schutz, Mr Scott, and Dr Jones, that Mr Blackmore’s significant operative findings were inconsistent with a single, acute event, and that Mr Scaramuzzino’s right shoulder had significant pre-existent multiple degenerative pathology that was unrelated to his workplace injury. I note in this regard that Mr Khan considered Mr Scaramuzzino’s workplace injury to have aggravated or accelerated ‘pre-existing early degenerative changes.’ Similarly, Dr Jones opined that Mr Scaramuzzino’s workplace injury had the capacity to exacerbate previous instability symptoms. These opinions, coupled with the site of symptoms reported by Mr Scaramuzzino in the post-injury incident report (right rear under shoulder), his physiotherapist’s reference to the right scapula origins of his pain, the lack of referred symptoms and typical distribution in his shoulder joint, and the results of the ultrasound, MRI and x-rays, support a finding that the injury he experienced on 28 September 2010 was soft tissue in nature.
I accept the weight of influential, expert medical evidence that if Mr Scaramuzzino had suffered a workplace injury of sufficient force to inflict a superior labral tear and extended anterior labrum tear and some of the other damage repaired by Mr Blackmore, it would have been accompanied by severe pain and an acute inflammatory response. Mr Scaramuzzino would not have been able to complete his shift as he did on 28 September 2010 and would have required earlier and more urgent medical intervention than a consultation with Dr Garg two days later. Moreover, the clinical presentation of his pain would have been different to that described in his compensation claim, to Dr Garg and others. I note in his claim for compensation Mr Scaramuzzino notes there were no witnesses to his injury,[75] yet in the incident report completed on the day of his injury he states the injury occurred while he was throwing a bag to the ‘next guy.’ I consider that had Mr Scaramuzzino damaged his right shoulder in a single acute incident, to inflict the complex structural injuries repaired by Mr Blackmore, it is more probable than not that the severe pain associated with such an injury would have prevented Mr Scaramuzzino completing his shift and the pain he experienced would have been apparent to the ‘next guy.’ Instead, Mr Scaramuzzino continued his duties, notifying the leading hand of the incident at the completion of his shift. On any reading, the incident report reflects a relatively minor event, which was not considered to be a ‘notifiable incident’ or requiring a risk assessment or further investigation.[76]
[75] Exhibit R1, p.23.
[76] Exhibit R1, p.8.
Although Mr Scaramuzzino was not able to recall a previous dislocation or subluxation of his right shoulder, I accept the evidence of Mr Holland, Mr Schutz, Mr Scott and Dr Jones, that it is more probable than not that Mr Scaramuzzino must have previously dislocated or subluxated his right shoulder, but not on 28 September 2010 as an initiating, acute event causing a labral tear and other structural injury to his shoulder. In this regard I also note Mr Blackmore’s evidence that a torn labrum in the majority of people is associated with a known dislocation or subluxation of the shoulder, and that he thought it was unlikely Mr Scaramuzzino could have continued aircraft loading duties with a torn labrum. I prefer the evidence above to Mr Khan’s evidence, that a Bankart lesion could be a degenerative problem absent any traumatic event like a dislocation or subluxation of the shoulder.
I note counsel for the Applicant highlighted Mr Blackmore’s evidence that the MRI of Mr Scaramuzzino’s right shoulder may have missed the superior labral tear and extended anterior labrum tear, because MRI’s ‘miss something like one in twenty patients.’ Mr Scott similarly agreed that MRI’s do miss these tears on occasion, but he did not consider it probable that the damage to Mr Scaramuzzino’s labrum or the Hill-Sachs lesion in his right shoulder resulted from the workplace injury. Having regard to all of the expert medical evidence, particularly Dr Macintosh’s and Mr Blackmore’s clinical examinations of Mr Scaramuzzino in mid-2011, the radiological findings, and the subsequent opinions of Mr Scott, Mr Schutz and Dr Jones, I do not accept the submission that the radiological investigations undertaken on 13 October 2010 and 4 March 2011 missed the damage in Mr Scaramuzzino’s right shoulder. I find that the operative repair undertaken by Mr Blackmore some 17 months after Mr Scaramuzzino’s workplace injury, addressed long-standing and degenerative pathology rather than the consequences of a single acute injury. Consistent with the evidence of Dr Macintosh in May 2011, I am satisfied that the soft-tissue injury to Mr Scaramuzzino’s right shoulder would likely have resolved by approximately July 2011 and that any incapacity after that time resulted from underlying degenerative pathology and not the accepted workplace injury.

In terms of permanent impairment, I note the competing evidence of Mr Khan and Mr Schutz. Mr Khan’s opinion is that Mr Scaramuzzino’s right shoulder injuries have ‘substantially stabilised,’ yet he concurrently assesses there is a possibility of further deterioration over time, to the point where further specialist referral may be required and ‘further surgery cannot be ruled out.’ It is difficult to reconcile those assessments. In any event, having found that Mr Scaramuzzino no longer suffers from the effects of his accepted workplace injury, he has no present entitlement to compensation for incapacity. It follows that the permanent impairment and non-economic loss provisions under the Act do not apply.
Depression
Mr Scaramuzzino was offered mental health support and anti-depressants by his GP in May and August 2010, which he declined. This offer of support followed Mr Scaramuzzino’s separation from his wife. On 19 October 2010, Dr Garg again noted Mr Scaramuzzino had a depressed mood and on this occasion ‘Suicidal thoughts…’ I note the consultation with Dr Garg occurred only three weeks after Mr Scaramuzzino’s workplace injury and well before lodgement of his worker’s compensation claim on 28 March 2011. That chronology makes it highly improbable in my view that any psychological effects or suicidal ideation experienced by Mr Scaramuzzino resulted from his workplace injury, or anticipation of continuing incapacity that was yet to be medically determined, or any potential long-term employment implications. I note that Dr Garg saw him again on 10 November 2010 and in her referral to psychologist Mr Peter Pinney, referred to his ‘history of Anxiety / Depression,’ noting he was:
‘living with friend, divorced for 2yrs…has financial stress, work related stress, has no patner (sic) at present.’
While work-related stress is mentioned in this referral, the focus is clearly on other factors. This is reflected in Mr Pinney’s clinical notes following Mr Scaramuzzino’s attendance at counselling for approximately six months from December 2010, where the focus was predominantly on dealing with financial stressors. Mr Scaramuzzino also attended Broadmeadows Uniting Care in February 2011, again to receive counselling on how best to respond to the financial pressures arising from his credit card and motorbike debts, child support commitments and living expenses. The evidence does not show that his shoulder injury was discussed at these counselling sessions. While it may have been discussed, I consider it improbable that, if this was the precipitating issue weighing on Mr Scaramuzzino’s mental health, it would not have been recorded in the notes. It is clear from these notes, however, that other factors were seen as having a more prominent impact on Mr Scaramuzzino’s mental health. At the hearing, when asked about Mr Scaramuzzino’s psychological health in or about August 2010, Dr Garg agreed that he had depression ‘because of family issues,’ which is why she offered him a mental health plan and anti-depressants. In his evidence, Mr Blackmore was asked about Mr Scaramuzzino’s reaction to news after surgery that his shoulder would never be 100 per cent, replying that he had taken ‘it on board like most patients do.’[77] I also note that Dr Garg’s subsequent clinical notes indicate Mr Scaramuzzino’s suicidal thoughts abated at their subsequent consultation on 10 November 2010.
[77] Transcript dated 6 July 2016, p.7.
Dr Garg again offered Mr Scaramuzzino counselling and anti-depressants in May 2012, advising him to see a psychologist on 28 September 2013 regarding stress at work. In February 2014, she again offered him anti-depressants after Mr Scaramuzzino expressed concerns about losing his job following the takeover of AaE by QANTAS. But this appears from her evidence to have been more of a generalised concern about the workplace consequences of a QANTAS takeover, rather than a risk to Mr Scaramuzzino’s employment as a result of his workplace injury. In any event, I note from his own evidence at the hearing that Mr Scaramuzzino undertook a graduated return to work in modified duties after his workplace injury and continues to work for QANTAS to the present day – in a clerical role at the time of the hearing. I note in this regard Dr Garg’s clinical note of 5 March 2014, which shows that the Respondent contacted her about increasing Mr Scaramuzzino’s hours from 32 to 40 per week in a ‘desk job.’ I note also she referred him for further psychological counselling on 16 August 2014, and prescribed anti-depressants (at his request) in October 2014. Dr Garg’s evidence at the hearing, however, was that Mr Scaramuzzino had informed her he did not continue taking the anti-depressants, because he could not afford them. There is no reliable evidence before me regarding the success or otherwise of any anti-depressant medication taken by Mr Scaramuzzino, or any follow-up or repeat prescriptions. Mr Scaramuzzino gave evidence at the hearing that he was not receiving care from any mental health professional nor taking any medication in relation to his mental health.
In terms of the conflicting opinions of Dr Epstein and Associate Professor Mendelson, it is difficult to reconcile Dr Epstein’s diagnosis of ‘a chronic Adjustment Disorder with mixed anxiety and depressed mood,’ with his assessment that this condition does not interfere with Mr Scaramuzzino’s capacity for employment or ‘require any further psychological or psychiatric treatment.’ In a similar vein, Dr Epstein concludes Mr Scaramuzzino was ‘experiencing pain but seemed able to cope with that,’ yet assesses that ‘as a result of chronic pain, discomfort and disability,’ Mr Scaramuzzino had developed a diagnosable mental disorder. I prefer and accept the evidence of Associate Professor Mendelson that a diagnosable mental disorder requires some treatment or intervention. I note that neither Dr Epstein nor Associate Professor Mendelson considered it necessary to prescribe Mr Scaramuzzino with psychotropic medication, and the only occasion he was prescribed an anti-depressant (Lexapro), was by his general practitioner, Dr Garg, who has no specialist psychiatric qualifications. I note the references to passive suicidal ideation without intent, which Mr Scaramuzzino did not rely upon in his witness statement, oral evidence to the Tribunal, or during his consultation with Associate Professor Mendleson. I note also that Mr Scaramuzzino has continued to work fulltime in modified duties following closure of his RTW plan, and that he has not subsequently sought any follow-up psychological / psychiatric treatment or medication.
I do not accept Dr Epstein’s evidence that there appear to be ‘no other factors that could have contributed to his current mental state apart from this work injury.’ I find from the available evidence that it is more probable than not, that the key factors affecting Mr Scaramuzzino’s mental health from at least May 2010 were the separation from his wife, the requirement to move out of his family home, and financial problems. Although AaE’s insurer did subsequently refer Mr Scaramuzzino for counselling in October 2013, the evidence shows this was in the context of assisting his adjustment to a different role in the workplace, rather than a concession that he suffered from a psychological condition arising from his workplace injury.
I find it improbable on the evidence before me that Mr Scaramuzzino’s workplace injury in 2010 was the precipitating factor to the development of a diagnosable mental disorder in 2015. He may well have felt frustrated and upset by the continuing symptoms in his shoulder, which affected his ability to return to his former duties as a Porter. I also accept his evidence that he disliked the ‘robotic… nature’ of operating the MHE machine and other modified duties during his RTW Plan. He may also have been frustrated about aspects of his compensation claim processing. These are all understandable psychological reactions. But on the evidence before me, I accept Associate Professor George Mendelson’s opinion, that these emotional symptoms ‘do not…meet the diagnostic criteria or threshold for a finding of a specific psychiatric disorder.’
FINDINGS
I make the findings that follow on the balance of probabilities, after due regard to the factors detailed above and the available evidence:
(a)Mr Scaramuzzino suffered an injury to his right shoulder approximately one month before his accepted workplace injury, which his general practitioner assessed had improved within a week, enabling a resumption of normal duties.
(b)Mr Scaramuzzino’s contention in his worker’s compensation claim and to a number of orthopaedic specialists that he had not previously injured his right shoulder was erroneous.
(c)Mr Scaramuzzino suffered a workplace injury on 28 September 2010 in the region of his right scapula, which was soft-tissue in nature and which incapacitated him for his pre-injury duties. His employer appropriately accepted liability for that injury, providing medical treatment, support services, incapacity payments and modified duties commensurate with his physical limitations.
(d)Any entitling circumstances from Mr Scaramuzzino’s accepted soft-tissue injury would have resolved by approximately July 2011, well before the Respondent’s reviewable decision on 12 May 2014.
(e)The workplace injury described by Mr Scaramuzzino on 28 September 2010 did not cause the significant damage revealed by Mr Blackmore’s operative findings some 17 months later. The mechanism, location and symptoms of injury, coupled with Mr Scaramuzzino’s ability to complete his shift and clinical presentation two days after the workplace injury, are inconsistent with the severity of those operative findings. Had Mr Scaramuzzino damaged his right shoulder on 28 September 2010 with sufficient force to tear his labrum and cause a Bankart / Hills-Sachs lesion, I am satisfied that the accompanying severe pain and inflammatory response would have rendered him incapable of completing his shift and necessitated more urgent medical assistance. His clinical presentation and the radiological results following the workplace injury are inconsistent with such a severe injury. It is not possible on the evidence to causally link the extensive damage in Mr Scaramuzzino’s right shoulder to a single acute workplace injury on 28 September 2010.
(f)It is more probable than not, that Mr Scaramuzzino had previously dislocated or subluxated his right shoulder, perhaps on more than one occasion, but not on 28 September 2010 as an initiating, acute event causing the extensive injury to his right shoulder.
(g)Prior to his workplace injury, Mr Scaramuzzino was suffering from pre-existing, degenerative changes in his right shoulder that may have been rendered symptomatic by the soft-tissue injury he sustained on 28 September 2010. The effects of his accepted injury were temporary in nature and were overtaken by symptoms arising from his pre-existing condition, which cause him continuing pain and discomfort, and incapacitate him from returning to his previous duties. It follows that the Respondent is not liable for the cost of medical treatment obtained by Mr Scaramuzzino in relation to his accepted workplace injury under section 16 of the Act.
(h)I am unable to conclude from the available evidence whether the pre-existing, condition in Mr Scaramuzzino’s right shoulder results from his employment with AaE, previous manual roles prior to commencing work at AaE, as a result of his sporting, social or recreational activities, age-related degeneration, or a discernible combination of those factors.
(i)Given that Mr Scaramuzzino was placed on modified duties in the immediate aftermath of his accepted workplace injury, and has remained on modified duties in the years since, I am not satisfied that any of the subsequent work he has undertaken at AaE has exacerbated his right shoulder condition beyond the soft tissue injury sustained on 28 September 2010.
(j)Given Mr Scaramuzzino has been employed fulltime in duties accommodating his medical restrictions, I accept the Respondent’s submission that, even if an entitlement for capacity had been established, Mr Scaramuzzino’s weekly compensation is $0.00 when the amount per week that he is able to earn in suitable employment within the meaning of section 19(4) of the Act is deducted from his normal weekly earnings. He therefore has no present entitlement to compensation for incapacity.
(k)The permanent impairment and non-economic loss provisions under the Act do not apply in relation to Mr Scaramuzzino’s accepted injury and he is not entitled to compensation under section 24 or section 27 of the Act.
(l)Any psychological symptoms Mr Scaramuzzino may have suffered since his workplace injury, were not contributed to, to a significant degree, by his employment at AaE. I am satisfied that he does not suffer a psychological condition secondary to his workplace injury and is therefore not entitled to compensation.
CONCLUSION
It follows that the decisions to reject Mr Scaramuzzino’s claims for compensation and permanent impairment were correct.
Consequently, I affirm the three decisions under review.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of

..........................[sgd]..............................................
Associate
Dated: 16 January 2018

Dates of hearing: 10-11, 13 July 2017 & 30 October 2017

Date final submissions received: 21 December 2017

Solicitor-Advocate for the Applicant:

Mr Mark Seymour

Solicitors for the Applicant: Mr Timothy Dionyssopoulos & Ms Georgia Gamble

Maurice Blackburn Lawyers

Counsel for the Respondent: Mr Roy Seit

Solicitors for the Respondent: Mr Paul Mentor

Clarke Legal

[2018] AATA 45

16 January 2018

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Negligence

Remedies

Standing

Statutory Construction

Dates of hearing:	10-11, 13 July 2017 & 30 October 2017
Date final submissions received:	21 December 2017
Solicitor-Advocate for the Applicant:	Mr Mark Seymour
Solicitors for the Applicant:	Mr Timothy Dionyssopoulos & Ms Georgia Gamble
Maurice Blackburn Lawyers
Counsel for the Respondent:	Mr Roy Seit
Solicitors for the Respondent:	Mr Paul Mentor
Clarke Legal