SCOTT AUSTON and CHUBB SECURITY SERVICES LIMITED
[2013] AATA 153
[2013] AATA 153
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/0953
2012/0956
Re
SCOTT AUSTON
APPLICANT
And
CHUBB SECURITY SERVICES LIMITED
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 21 March 2013 Place Brisbane In relation to application 2012/0953, the Tribunal affirms the decision under review.
In relation to application 2012/0956, the Tribunal sets aside the decision under review and substitutes its decision that Mr Auston is entitled to receive compensation payments for 20% of the overall incapacity associated with his accepted injuries from 29 April 2010 until 3 October 2010 and that the matter of assessment of that incapacity be remitted to the respondent.
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Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Acceptance of liability for medical treatment and compensation – Injuries suffered in two incidents – Overall impairment – Percentage of impairment attributable to each incident – Settlement of common law damages claim against employer in relation to first incident – Compensation not payable under the Safety, Rehabilitation and Compensation Act 1988 for incapacity associated with first incident – Acceptance of liability for medical treatment and compensation for second incident – Compensation payable for extent of overall incapacity associated with second incident – Length of period payable adjusted – Assessment of incapacity remitted – Decision under review set aside and substituted
WORKERS’ COMPENSATION – Incapacity from accepted condition resolved – No continuing entitlement to compensation under the Act for incapacity or impairment – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 14, 16, 19, 48
REASONS FOR DECISION
Mr R G Kenny, Senior Member
21 March 2013
BACKGROUND
On 6 April 2009, Chubb Securities Services Limited[1] (“the respondent”) accepted liability under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the Act”), for rehabilitation and compensation in respect of “Head and Arm Contusions”. This resulted from a compensation claim by Mr Auston in relation to the consequences of a motor vehicle accident on 25 March 2009. On 5 January 2010, the respondent accepted liability under the Act for rehabilitation and compensation in respect of “Bilateral Shoulder Strain” which resulted from a compensation claim by Mr Auston in relation to the consequences of his lifting boxes at his workplace on 18 August 2009.
[1] All material decisions and determinations under the Act were made by CGU Self Insurance Services, acting for and on behalf of Chubb Securities Services Limited.
On 28 November 2011, the respondent determined that Mr Auston was “entitled to receive incapacity benefits arising out of his accepted conditions for the period 29 April 2010 to 1 August 2010 inclusive” but not for the period from 2 August 2010 to 3 October 2010. That decision was affirmed by a reviewable decision on 27 January 2012. That decision was then revoked and replaced by a reviewable decision on 30 May 2012[2] pursuant to which Mr Auston was entitled to receive incapacity benefits arising out of his accepted conditions for the period from 2 August 2010 to 30 September 2010, inclusive, and pursuant to which the decision was otherwise affirmed.
[2] This was a reconsideration of own motion.
On 29 November 2011, the respondent determined that Mr Auston was not entitled to receive incapacity benefits arising out of his accepted conditions for the period from 27 October 2011 to 29 November 2011 inclusive. That decision was affirmed by a reviewable decision on 30 January 2012.
This matter is concerned with the review of the reviewable decisions dated 30 January 2012 (2012/0953) and 30 May 2012 (2012/0956).
ISSUES AND LEGISLATION
The issue for the Tribunal is whether the respondent is liable, under s 16 and/or s 19 of the Act, to pay compensation to Mr Auston for incapacity from head and arm contusions and/or bilateral shoulder strain. Also of relevance in this matter is s 48 of the Act which, insofar as is applicable, reads:
(1) This section applies where:
(a) an employee recovers damages in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which compensation is payable under this Act; or
…
…
(3) If, before the recovery of the damages by, or for the benefit of, the employee or dependant, any compensation under this Act was paid to, or for the benefit of, the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, as the case may be, the employee or dependant is liable to pay to Comcare an amount equal to:
(a) the amount of that compensation; or
(b) the amount of the damages;
whichever is less.
(4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be.
…
EVIDENCE
The Applicant
Mr Auston confirmed that he injured his upper spine on 25 March 2009 and that, after short periods off work, he completed a return to work (“RTW”) schedule under which he resumed duties with the respondent. This was subject to certain restrictions including weight lifting limits and the avoidance of repetitive bending and twisting. His first day back at work was on 18 August 2009 when he sustained the injury to his shoulders and exacerbated his spinal condition lifting boxes. Thereafter, based on medical reports, including those from Dr Choong’s practice, Mr Auston had periods when he was fit for restricted work along with periods when he was unfit for work. He was unfit for work from 29 April 2010 until 3 October 2010. He returned to work on 4 October 2010 under successive RTW schedules providing for restricted duties until 27 November 2011. He was then made redundant by the respondent.
On 24 January 2011, Mr Auston instructed his solicitor to settle his common law damages claim in relation to the motor vehicle accident in the amount of $140,000 plus costs agreed in the amount of $20,000.[3] Pursuant to that claim, Mr Auston received a lump sum payment in November 2011 which, he agreed, included a component for loss of future earnings.[4] A further damages claim was initiated by Mr Auston in relation to his shoulder injuries but this was ultimately discontinued.
[3] See Exhibit 3.
[4] See Exhibit 3.
Mr Auston said that he no longer experiences any pain or discomfort from the injuries sustained in the motor vehicle accident in March 2009 and that the only physical impairment he now experiences is related to the shoulder injuries sustained in the lifting incident in August 2009.
Dr Peter Johnstone (orthopaedic surgeon)
Dr Johnstone completed reports on 7 July 2009, 2 November 2009 and 24 December 2009. In his first report,[5] Dr Johnstone was concerned with the effects of Mr Auston’s motor vehicle accident. He described Mr Auston’s symptoms as thoracolumbar discomfort rather than specific pain but with “[occasional] neck discomfort which radiates into the shoulder girdle and shoulder blade” in association with a busy day at work. Dr Johnstone’s opinion was that, as a result of the motor vehicle accident, Mr Auston suffered from mild soft tissue musculoligamentous strain to the cervical and thoracolumbar spine from which he made almost a full recovery. In his second report,[6] Dr Johnstone noted that Mr Auston had an injury to his shoulders and his opinion was that the cause of that new injury also “aggravated his previous thoracolumbar spine symptoms and caused new shoulder girdle symptoms”. He described a full range of movement in Mr Auston’s shoulders and noted that he was awaiting specialist review in relation to them. Dr Johnstone declared Mr Auston fit to work in relation to his thoracolumbar spine condition. In his final report,[7] Dr Johnstone noted that he had not had the benefit of imaging modalities for Mr Auston’s shoulders. He described as normal a left shoulder X-ray on 25 March 2009 with possible rotator cuff tears. Again, he noted that Mr Auston was to see Dr Dale Rimmington in relation to his shoulders.
[5] See Exhibit 1, T-document 10, pp. 30-35.
[6] See Exhibit 1, T-document 15, pp. 44-49.
[7] See Exhibit 1, T-document 17, pp. 52-53.
Dr Dale Rimmington (orthopaedic surgeon)
Dr Rimmington completed a report on 17 February 2010.[8] He wrote that CT arthrograms had revealed no shoulder abnormalities in Mr Auston but that he was to undergo MR arthrograms[9]. Dr Rimmington described complaint of quite severe pain in both shoulders but expressed the opinion that he did not know why he had so much pain.
[8] See Exhibit 1, T-document 20, pp. 60-61.
[9] X-ray imaging coupled with magnetic resonance imaging (MRI).
Dr Scott Campbell (neurosurgeon)
Dr Campbell completed a report on 12 March 2010.[10] He wrote that Mr Auston’s neck and mid-back injuries from the motor vehicle accident were aggravated in the lifting incident. He noted Mr Auston’s description of back and neck pain of equal intensity at 8/10 and as occurring daily. He identified the reported limitations from the back and neck as including sitting for more than 20 minutes, computer work, bending to vacuum and mop, looking up to hang washing, driving a car for long distances, checking the blind spot when driving, showering, toileting, dressing/undressing, pushing a lawn mower, washing a car and garden duties such as digging, weeding and trimming. Mr Auston’s shoulders were not implicated as a cause of those limitations. Dr Campbell diagnosed chronic soft tissue musculoligamentous injury of the cervical and thoracic spine and he noted that Mr Auston was undergoing investigation for shoulder problems. Dr Campbell reported that Mr Auston had a combined whole person impairment of 8% with 80% of that being due to the accident in March 2009 and 20% being due to the lifting incident in August 2009.
[10] See Exhibit 1, T-document 22, pp. 63-67.
Dr Tim Anderson (orthopaedic physician)
Dr Anderson completed a report on 15 March 2011.[11] He identified the two incidents in 2009 and described a “relatively mild dysfunction of the shoulders and associated muscularity around the shoulder girdle”. He also referred to an “ache in the lower part of the neck radiating into the trapezius muscle mass and towards the shoulder on each side” as well as a “feeling of “pressure” in his mid to upper thoracic spine between the shoulder blades”. Dr Anderson considered that Mr Auston’s condition was likely to be an accumulation of the effects of the vehicle accident combined with the aggravation of the neck and spine conditions in the lifting incident. Dr Anderson’s opinion was that his current condition is “relatively mild”. He considered that Mr Auston was fit to continue with most of his individual occupational tasks with nothing more than “obvious commonsense precautions”. He opined that there was an industrial element to the development and perpetuation of Mr Auston’s circumstances. He considered that Mr Auston was capable of carrying out the work of cleaning and servicing ATMs which he was doing with Chubb before his accident.
[11] See Exhibit 1, T-document 26, pp. 74-81.
Dr Noel Saines (neurologist)
Dr Saines completed a report on 10 July 2011.[12] He reported that, on clinical examination, there was no neurological deficit and “no neurological abnormality which would prevent him from undertaking the work program”.
[12] See Exhibit 1, T-document 27, p. 27.
Dr Robert Choong (general practitioner)
Dr Choong completed reports on 23 September 2009 and 3 January 2012. He also completed many medical certificates in relation to Mr Auston’s capacity for work. These included a certificate dated 4 August 2010 which declared that Mr Auston was unfit for work from 1 August 2010 until 30 September 2010.[13]
[13] See Exhibit 1, T-document 29, p. 112.
In his first report,[14] Dr Choong described Mr Auston as a regular patient who saw him on the day after the motor vehicle accident when he identified numerous bruises and contusions but also a “good range of movement in his neck”. He also saw Mr Auston on the day after the lifting incident. Dr Choong described shoulder pains and diagnosed bilateral shoulder strain.
[14] See Exhibit 1, T-document 13, pp. 41-42.
In his second report,[15] Dr Choong recounted the description of symptoms related by Mr Auston on 28 October 2011. These were that he felt off balance with muscle tightness in the neck, shoulders and upper back; headaches and blurry vision; electric like shock sensations in his left shoulder which radiated to his left wrist; and difficulty driving, with trouble holding the steering wheel. Dr Choong recorded a reduced range of movement in Mr Auston’s neck. Dr Choong saw Mr Auston again on 7 November 2011 and noted that Mr Auston had been made redundant at work. On 21 November 2011, Mr Auston informed Dr Choong that “his sleep was interrupted by sharp pains from the neck to his left leg”. Dr Choong described Mr Auston’s condition as being slow to improve. He concluded his report with the comment:
Mr Auston’s symptoms revolve those the [sic] arose from his previous injury in March 2009. As such, I feel that he would be unlikely to be incapacitated for work as per my recent work cover certificates if he had not been involved in the accident.
[15] See Exhibit 1, T-document 28, pp. 84-85.
Dr Hugh English (orthopaedic surgeon)
Dr English completed a report on 26 October 2012[16] and gave evidence. Symptoms recorded by Dr English included “ongoing bilateral shoulder and deltoid pain present most of the time varying between approximately 3 and 7 out of 10 in severity”. In relation to his neck, Mr Auston demonstrated a full symmetrical range of motion but a reluctance to demonstrate a full range of movement with his shoulders because of pain though he advised Dr English that was able to achieve that full range.
[16] See Exhibit 6.
Dr English’s opinion was that, in the motor vehicle accident, Mr Auston “sustained a musculoligamentous sprain to his cervical and thoracic regions and a soft tissue injury to the left shoulder”. He concluded that Mr Auston suffered an aggravation of those conditions in the lifting incident as well as a soft tissue injury to the right shoulder. He considered that each event had resulted in partial incapacity which was a combination of the effects of the two injuries. He agreed with Dr Campbell’s analysis that 80% of Mr Auston’s incapacity was related to the motor vehicle accident and 20% was due to the lifting incident. He considered that there were significant non-employment factors at play in the matter.
In his evidence, Dr English described the motor vehicle accident as a significant event. However, he considered the lifting incident to be minor. He also said that it would be most unusual for both shoulders to suffer injury in the type of lifting procedure that Mr Auston was undertaking at that time. Dr English referred to MRI arthrograms which he described as the most reliable procedure for assessing Mr Auston’s shoulders. The MRI results for the right and left shoulders were obtained on 18 March 2010[17] and 25 February 2010,[18] respectively. In his report, he wrote that the former revealed partial thickness tearing of the supraspinatus tendon, minor bursitis and oedema of the acromioclavicular joint and that the latter revealed mild supraspinatus tendonitis. In evidence, Dr English described degeneration in the shoulders which was normal for Mr Auston’s age and which was related to general wear and tear of the joint. He considered that Mr Auston’s conditions were “stable” and “stationary” and that he was fit for full-time work in office duties and non-manual or light manual work.
[17] In his report, Dr English states that this was performed on 18 March 2011. However, it appears that the MRI was performed on 18 March 2010: see Exhibit 1, T-document 23, pp. 68-69.
[18] See Exhibit 1, T-document 21, p. 62.
SUBMISSIONS
Mr Charles Clark, for the respondent, conceded that Mr Auston continued to suffer incapacity from the effects of the lifting incident in the period from 29 April 2010 but that these had ceased by 4 October 2010 when Mr Auston resumed full-time work. He also submitted that those effects were not operative in the period from 27 October 2011 to 29 November 2011. He submitted that the incapacity from the motor vehicle accident may also have continued and that the medical evidence supported an apportionment between the effects of the two at 80% for the motor vehicle accident and 20% for the lifting incident.
Mr Clarke submitted that the 80% component, which related to the effects of the motor vehicle accident, was subject to the terms of ss 48(3) and (4) of the Act. This was, he submitted, because of the receipt by Mr Auston of a lump sum compensation payment as the result of the settlement of his common law damages claim against the respondent. He submitted that this included a component for loss of future earnings and that, accordingly, any compensation payments paid to Mr Auston under the Act were recoverable and he was precluded from being paid any further compensation under the Act in relation to any incapacity associated with the motor vehicle accident.
Mr Auston submitted that he had not been paid the amounts due to him under the Act. He disputed the medical evidence that assessed the respective contributions from his first and second injuries at 80%/20%. In particular, he submitted that Dr Campbell should be disregarded in relation to any reference to his shoulders because Dr Campbell had insisted that he was only concerned with Mr Auston’s back condition. He also submitted that he no longer experienced any of the effects which had been attributable to his motor vehicle accident.
CONSIDERATION
Mr Auston does not dispute and I am satisfied that he received, in November 2011, a lump sum payment in settlement of his common law claim against the respondent in relation to his motor vehicle accident in March 2009. I am also satisfied that this included a component for loss of future earnings and that the payment brings into operation ss 48(3) and (4) of the Act. I accept as correct Mr Clarke’s submission as to the effect of those provisions. This is that any compensation payments paid to Mr Auston under the Act in relation to incapacity associated with injuries resulting from the motor vehicle accident are recoverable by the respondent and that he was precluded from being paid any further compensation under the Act in relation to any incapacity associated with that accident. It follows that, regardless of any incapacity suffered by Mr Auston from the motor vehicle accident, the respondent is not liable to pay compensation to him.
I have noted Mr Clarke’s concession that the respondent is liable to pay compensation to Mr Auston for incapacity associated with his lifting incident in August 2009 in the period from 29 April 2010 until 3 October 2010.[19] Indeed, that outcome is reflected in the reviewable decision of 30 May 2012. I am satisfied that that concession was properly made and I have noted the certificate provided by Dr Choong on 4 August 2010 advising that Mr Auston was unfit for work from 1 August 2010 to 30 September 2010.
[19] The initial decision was in relation to the period ending on 3 October 2010. The reviewable decision extended the period of incapacity only to 30 September 2009 but Mr Clarke’s concession was in relation to the longer period.
The medical evidence in respect of the level of Mr Auston’s incapacity is not consistent. Dr Johnstone described shoulder pain even before the lifting incident and, in his subsequent reports, noted full range of shoulder movements. However, he reached no final conclusion on Mr Auston’s shoulder incapacity as he noted that he was awaiting specialist review. CT arthrograms revealed no shoulder abnormalities, in February 2010, to Dr Rimmington who noted that Mr Auston was to undergo MR arthrograms for his shoulders. Dr Rimmington could not explain Mr Auston’s complaint of quite severe pain in both shoulders. Dr Campbell, in March 2010, described a wide range of quite severe limitations to Mr Auston’s activities of daily living but attributed these to the consequences of his motor vehicle accident. His opinion was that only 20% of Mr Auston’s incapacity was associated with the consequences of the lifting accident.
In March 2011, Dr Anderson identified a mild dysfunction of the shoulders and his opinion was that Mr Auston was fit to return to work provided he took “obvious commonsense precautions”. Dr Saines, on 10 July 2011, reported no neurological deficit or abnormality which would prevent Mr Auston from undertaking his work program. Dr English had the benefit of MRI arthrograms in forming his opinion that Mr Auston displayed some age-related degeneration in the shoulders but also a degree of supraspinatus tearing and tendonitis. He considered that Mr Auston’s shoulders are stable and that he is fit for full-time work in office duties and non-manual or light manual work. He agreed with Dr Campbell’s analysis that 80% of Mr Auston’s incapacity was related to the motor vehicle accident and 20% was due to the lifting incident.
I have noted Mr Auston’s contention that he no longer suffers from any incapacity associated with the effects of his motor vehicle accident. I do not accept his evidence in that regard. Consistently, the medical reports maintain the continuation of those symptoms, even to the date of the hearing in the case of the evidence of Dr English. Significantly, that was also the opinion of Dr Choong who, as Mr Auston’s general practitioner, has been closely associated with Mr Auston throughout his respective treatments and consultations with specialists. In January 2012, Dr Choong wrote that it was the effect of the motor vehicle accident which bore responsibility for Mr Auston being incapacitated for work. I am satisfied that the apportionment of 80%/20% for the motor vehicle accident injury and the lifting injury, respectively, is correct.
I have noted the references by Dr Anderson and Dr English to the significant non‑employment factors at play in relation to Mr Auston’s incapacity. Nonetheless, I am satisfied that Mr Auston is entitled to receive payments for 20% of his overall incapacity, that being the level of incapacity associated with his “bilateral shoulder strain”, accepted by the respondent on 5 January 2010, in the period from 29 April 2010. In the reviewable decision on 30 May 2012, liability was accepted until 30 September 2010 which was four days short of the period conceded at the hearing. On the basis of that concession, I am satisfied that Mr Auston is entitled to receive payments for 20% of his overall incapacity from 29 April 2010 until 3 October 2010. It also means that the reviewable decision must be set aside to give effect to the longer period. The reviewable decision made no assessment of the compensation payable to Mr Auston and the matter is remitted to the respondent for that calculation to be made.
On 27 and 28 October 2011, Mr Auston attended Dr Choong’s practice with complaints of wide ranging discomfort. These were detailed by Dr Choong in his report of 3 January 2012.[20] Mr Auston has not worked since then. In relation to the period from 27 October 2011 until the date of the reviewable decision on 29 November 2011, the evidence of Dr Anderson is relevant. In March 2011, his opinion was that Mr Auston was fit to continue with most of his individual occupational tasks with nothing more than “obvious commonsense precautions”.[21] Dr English concluded that Mr Auston was fit for full-time work in office duties and non-manual or light manual work. There is also the opinion of Dr Choong in his report of 3 January 2012 which implicated Mr Auston’s back condition, rather than his shoulder condition, as the reason for his being incapacitated for work. I have noted a certificate, dated 21 November 2011, from Dr Choong in which he declared that Mr Auston was unfit for work because of his “upper back” and “left and right shoulder strain”.[22] That reference to the shoulder condition is not consistent with his subsequent report. As noted above, Mr Auston is not able to be compensated under the Act in respect of the injuries associated with the motor vehicle accident. I am satisfied that Mr Auston has no entitlement to incapacity payments under ss 16 or 19 of the Act after 27 October 2011. This means that the reviewable decision of 30 January 2012 must be affirmed.
[20] See Exhibit 1, T-document 28, pp. 84-85.
[21] See Exhibit 1, T-document 26, pp. 74-81, esp. p. 78.
[22] See Exhibit 1, T-document 29, p. 86.
DECISION
In relation to application 2012/0953, the Tribunal affirms the decision under review.
In relation to application 2012/0956, the Tribunal sets aside the decision under review and substitutes its decision that Mr Auston is entitled to receive compensation payments for 20% of the overall incapacity associated with his accepted injuries from 29 April 2010 until 3 October 2010 and that the matter of assessment of that incapacity be remitted to the respondent.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member .
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Associate
Dated 21 March 2013
Date of hearing 11 and 12 March 2013 Applicant In person Counsel for the Respondent Mr Charles Clark
Solicitor for the Respondent Dibbs Barker
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