Selman and TNT Australia Pty Ltd (Compensation)

Selman and TNT Australia Pty Ltd (Compensation) [2022] AATA 2386 (28 July 2022)
Division:GENERAL DIVISION
File Number: 2021/0460
Re:Ralph Selman

APPLICANT

AndTNT Australia Pty Ltd
RESPONDENT

DECISION
Tribunal:Member M East
Date:28 July 2022
Place:Perth

The Reviewable Decision, dated 11 December 2020, which rejected the Applicant’s claim for Worker Compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth), is affirmed.
..............[Sgd]................................................
Member M East
CATCHWORDS
COMPENSATION – worker compensation – left shoulder tear on tendon – whether applicant suffered an injury – whether the injury was suffered in the workplace – reporting of the injury to the employer – conflicting medical expert opinion – Reviewable Decision affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 5A, 5A(1), 5A(1)(b), 5(B), 5(B)(1), 14
CASES
Jones v Dunkel (1959) 101 CLR 298
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599
SECONDARY MATERIALS
REASONS FOR DECISION
Member M East
28 July 2022
INTRODUCTION

The decision under review is a decision, dated 11 December 2020 (the Reviewable Decision), which affirmed an earlier determination made by a delegate of the Respondent, dated 24 September 2020, to reject the Applicant’s Workers’ Compensation claim under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
The Applicant, Mr Selman, made a claim for Workers’ Compensation on 23 September 2020 for 'Left shoulder tear on tendon’. He claimed that the injury occurred on 26 August 2020 as a result of him opening the curtains and gates of his truck when working for the Respondent.
BACKGROUND
Mr Selman worked as a Driver for the Respondent, commencing on 29 January 2019.[1]
[1] Exhibit A1, 4.
On 31 August 2020 Mr Selman rang his employer to say he was unable to work because of a sore shoulder.[2]
[2] Ibid 24.
Mr Selman saw his General Practitioner (GP), Dr Visvanathan, on 31 August 2020 complaining of pain in his left shoulder.[3] He was certified off work until 4 September 2020 and referred for an ultrasound of the left shoulder.
[3] Ibid 71.
The ultrasound report, dated 1 September 2020, noted the following findings:[4]
1.Full thickness, partial width tear of the supraspinatus tendon.
2.Subscapularis tendinopathy without evidence of tear.
3.Moderate subacromial – subdeltoid bursitis with impingement.
[4] Ibid 74.
On 3 September 2020, Dr Visvanathan issued a further medical certificate certifying Mr Selman as ‘not fit to carry anything heavy with the left arm’.[5]
[5] Ibid 75.
On 4 September 2020, a further medical certificate was issued certifying Mr Selman as ‘unfit for work from 07/09/2020 to 21/09/2020 inclusive’.[6]
[6] Ibid 76.
Mr Selman was then referred to Mr Goonatillake, orthopaedic surgeon, who reviewed him on 14 September 2020. In his letter, dated 14 September 2020, Mr Goonatillake stated that Mr Selman had presented with ‘a two week history of spontaneous onset left shoulder pain when he awoke with a lot of pain and an inability to elevate his arm’ and ‘[h]e has no past history of shoulder problems’. Mr Goonatillake also referred him for an x-ray and Magnetic Resonance Imaging (MRI) to further assess his condition.[7]
[7] Ibid 77.
On 17 September 2020, a further medical certificate was issued certifying Mr Selman as ‘unfit for work from 17/09/2020 to 01/10/2020 inclusive’.[8]
[8] Ibid 78.
On 21 September 2020, Dr Visvanathan issue a ‘Workcover WA – First certificate of capacity’ reporting that on 26 August 2020 Mr Selman felt a ‘twitch in his left shoulder’ experiencing symptoms of ‘pain and discomfort’.[9]
[9] Ibid 72.
On 22 September 2020, Mr Selman provided a medical certificate to his employer and when questioned about his injury, he said he may have injured himself at work on 26 August 2020 at Centurion Transport during a delivery.[10]
[10] Ibid 24.
On 23 September 2020, Mr Selman lodged his claim for Workers’ Compensation for ‘left shoulder tear on tendon’. The cause of the injury was said to have been ‘opening curtains and gates of truck’ on 26 August 2020.[11]
[11] Ibid 31-34.
On 23 September 2020, Mr Selman consulted Dr Chandran at Sonic Health Plus. In her report, Dr Chandran stated that Mr Selman had suffered a ‘[l]eft shoulder injury after lifting a gate at work - started as a twitch’ which had ‘[w]orsened on the following Monday 31st 2020 [31 August 2020] without any triggers’.[12]
[12] Exhibit R2, 306.
On 24 September 2020, the Respondent issued a determination declining liability for ‘left shoulder tear on tendon’ pursuant to s 14 of the Act.[13]
[13] Exhibit R3, 4 [43]; the Tribunal notes that the in the Exhibit R1 date of determination is incorrectly mentioned as 24 September 2021 instead of 24 September 2020.
On 30 September 2020, Mr Selman underwent an MRI of his left shoulder which reported as follows:[14]
High grade interstitial/near full thickness tear involving the full width of the distal supraspinatus tendon. Moderate distal tendinosis
Moderate to marked distal infraspinatus tendinosis. Mild distal subscapularis tendinosis.
Intrasubstance split tear of the proximal intra-articular long head of the biceps tendon.
Advanced ACJ arthrosis with inferiorly directed osteophytes indenting the supraspinatus. Oedematous hypertrophy of the joint and subcortical marrow oedema implying active arthrosis. Small os acromiale with marrow oedema/stress response about the synchondrosis. Moderate to marked subacromion bursitis.
[14] Exhibit A1, 79.
On 1 October 2020, Mr Selman underwent an x-ray of his left shoulder which noted:[15]
The AC and glenohumeral joints are enlocated. High grade AC degeneration is present.
There is a prominent osteophyte at the distal lateral margin of the acromion. This narrows the acromiohumeral distance but the supraspinatus exits remains sufficient on transcapular view. The visualised ribs remain intact.
[15] Ibid 81.
On 19 October 2020, Mr Goonatillake again reviewed Mr Selman and, in his report stated that:[16]
… he [Mr Selman] presented further description of his left shoulder symptoms. He tells me his job involves lifting gates above shoulder height. He felt a twinge whilst lifting a gate on 26.8.2020 and managed to continue working over the next two days albeit with some discomfort. This was followed by a weekend off where he did not partake in any significant activity, lifting or exercises. On the Monday 31.8.2020, after the weekend he awoke with significant pain involving his left shoulder which prompted him to see his GP. He was reviewed by me on 14.9.2020 and you have the details of his history as given to me at that occasion.
[16] Ibid 83.
Mr Goonatillake also made a recommendation for an arthroscopic acromioplasty and rotator cuff repair.[17]
[17] Ibid.
On 9 December 2020, Mr Selman underwent a Pre-Placement Medical Assessment with Sonic Health Plus for a position as a FIFO – Maintenance/Bus Driver with a new employer. He was noted to have a normal range of movement except for in his lumbar spine and bilateral straight leg raises.[18]
[18] Exhibit R2, 313.
On 11 December 2020, the Respondent affirmed the determination dated 24 September 2020.[19]
[19] Exhibit R3, 5 [49].
Mr Selman provided an undated ‘Incident Statement’ as follows:[20]
On the Wednesday of 26.08.2020 I was opening curtains and gates of the truck when I felt a twitch on my right-side shoulder. However, at the time I just felt that it may just be a muscle spasm that would sort itself out after a few days. I continued to work on the day including the Thursday and Friday with a fair amount of discomfort of which my partner was massaging me with Infra Rub for the next few days.
However, on Monday 31.08.2020, at around 5.15 am I tried to get myself ready for work but experienced a fair amount of discomfort and pain of which I called work to inform them of the issue and told them I was going to see the doctor. My family doctor then referred me to have an ultrasound scan and that is when it was picked up that I had a tear of my left shoulder tendon.[21]
[20] Ibid 4 [42].
[21] Exhibit A1, page 39; assuming that the ‘Incident Statement’ forms part of the Applicant’s worker’s compensation claim form as it was attached to the document.
I assume that this forms part of Mr Selman’s Worker’s Compensation Claim Form as it was attached to those documents.
ISSUES BEFORE THE TRIBUNAL
The issue for determination before the Tribunal is whether the Respondent is liable to pay compensation to Mr Selman for his left shoulder condition, in accordance with s 14 of the Act.
The Tribunal needs to decide whether there was an ‘injury’ as contemplated by s 5A(1)(b) of the Act.
THE PARTIES’ CONTENTIONS
Mr Stewart, on behalf of the Applicant has made the following contentions.
Firstly, the Applicant, as outlined in his Statement of Facts, Issues and Contentions dated 20 April 2021 contends that he has suffered a physiological change, as in ‘a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state’, which ‘may qualify for characterisation as an ‘injury’ in the primary sense of that word’.[22]
[22] Exhibit A3, [32]-[47].
Mr Stewart re-iterated those submissions in his opening statement and stated as follows:[23]
… we accept there was underlying pathology that may have directly or indirectly caused the sudden event to occur, that all of the doctors had said that there is an element of pre-existing degeneration in the applicant’s left-shoulder. But what we say is that in this circumstance there was a particular event on a particular day which has caused a sudden and identifiable physiological change. It’s not a case in which we’re talking about an overuse injury over the course of three, four, six months and there’s a number of events which have just eventually led to a pinpoint.
We say, in this case, that once the evidence is put through to the tribunal that there is this precise evidence, as the High Court have framed it, of the physiological change in the context of some underlying pathology but that doesn’t take away from the applicant being able to succeed under the primary definition of injury.
[23] Transcript, 5-6.
The Applicant has therefore framed his claim that he suffered an ‘injury’ as defined in s 5A(1)(b) of the Act.
The Respondent contends that the evidence does not demonstrate the existence of a physical injury in the primary sense of the word. The Respondent accepts that there is relevant pathology in the left shoulder, however, they contend that that arose out of a progressive degenerative process rather than an acute tear.[24]
[24] Transcript, 90.
Secondly, they contend that the injury did not arise out of or in the course of Mr Selman’s employment, as required by the definition of ‘injury’.[25]
[25] Ibid.
As will be seen by my reasoning below, I am not satisfied that Mr Selman suffered an injury in the primary sense of the word. Whilst I accept that he has the relevant pathology in his shoulder as demonstrated by the radiological evidence presented, I am not satisfied that his injury arose out of or in the course of his employment.
This is a finding of fact based upon the conflicting oral and documentary evidence provided and the weight I have afforded each of the types of evidence presented before me.
The Respondent, in their closing submissions, correctly outlined the statutory sequence as outlined by the High Court in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [49]-[54].[26]
[26] Transcript, 131.
Mr Selman has run his case on the basis of satisfying the definition in s 5A(1)(b) of the Act, that is he suffered an ‘injury’ in the primary sense of the word. The ‘disease’ provisions are not considered as part of this application, although I make the observation that the medical evidence does not provide sufficient support for Mr Selman’s condition having been contributed to in a significant degree by his employment as required by the terms of s 5B(1) of the Act.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 8 and 11 April 2022. The Applicant was represented by Mr Adam Stewart, counsel, instructed by Slater & Gordon Lawyers, and the Respondent was represented by Ms Kate Slack, counsel, instructed by Moray & Agnew Lawyers.
The Applicant gave oral evidence at the hearing and was cross-examined by Ms Slack.
Oral evidence was also provided by Mr Weist, Mr Goonatillake, Dr Gongora and Dr Cairns. All the witnesses were cross-examined by opposing counsel.
The Tribunal had the following material before it:
- section 37 “T Documents” consisting of T1-T16, pages 1-65 (Exhibit R1);
- Respondent’s Book of Documents consisting of pages 3-332 (Exhibit R2);
- Respondent’s Statement of Issues, Facts and Contentions, dated 22 November 2021 (Exhibit R3);
- Applicant’s Book of Documents consisting of pages 4-119 (Exhibit A1);
- Statement of Evidence of Ralph Selman, dated 6 April 2022 (Exhibit A2);
- Applicant's Statement of Facts, Issues and Contentions, dated 20 April 2021 (Exhibit A3); and
- Applicant's Opening Submissions for Hearing Listed 8 and 11 April 2022, dated 5 April 2022 (Exhibit A4).
LEGISLATIVE FRAMEWORK
Section 14 of the Act provides that:
Compensation for injuries
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2)Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3)Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.
(Original emphasis.)
Section 5A(1) of the Act defines “injury”:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
(Original emphasis.)
Section 5B of the Act defines “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.
(Original emphasis.)
CONSIDERATION
Oral evidence
Mr Selman – the Applicant
Mr Selman gave oral evidence and was cross examined by Ms Slack. His statement of evidence dated 6 April 2022[27] was admitted into evidence together with his statement dated 14 April 2021 which formed part of the Book of Documents.[28]
[27] Exhibit A2.
[28] Exhibit A1, 40-43.
During the examination in chief Mr Stewart asked Mr Selman about a previous injury to his shoulders which he had not previously declared. Mr Selman stated he did not declare an injury to his right shoulder because he did not feel it was relevant to his current injury. In his statement dated 14 April 2021, Mr Selman’s sworn evidence was that prior to 26 August 2020 he had ‘not had any previous issues with either of my shoulders’.[29]
[29] Transcript,13.
Ms Slack cross-examined Mr Selman extensively. She questioned him about when he first reported the injury to his supervisor, Mr Weist. Mr Selman stated that he did mention to Mr Weist that he ‘felt this twitch when opening the gate on a delivery, and I said it could – it could have been something to do with me lifting the gate and moving equipment’.[30]
[30] Ibid 17.
Ms Slack noted Mr Selman had not mentioned about reporting his injury to Mr Weist on 31 August 2020 in his first statement, forming part of his Employer Compensation Claim Form dated 23 September 2020,[31] nor in his second statement dated 14 April 2021. She further stated it had not been mentioned until the final statement dated 6 April 2022.[32]
[31] Exhibit A1, 39.
[32] Transcript, 17.
Ms Slack further questioned Mr Selman whether the injury was not reported until the Workers’ Compensation claim was lodged on 22 September 2020. Mr Selman’s evidence was that he had told Mr Weist ‘on the same Monday [31 August 2020]’ after the claimed date of injury, 26 August 2020.[33]
[33] Ibid.
Ms Slack went further and suggested that support for her suggestion about the injury not being reported prior to 22 September 2020 lay in the fact that Mr Selman was not referred for a medical assessment by his employer prior to 23 September 2020.[34]
[34] Ibid.
Mr Selman claimed that he had told Mr Weist of the injury on ‘that first Monday’, 31 August 2020 and that ‘TNT completely washed their hands of me’.[35]
[35] Ibid 18.
Ms Slack responded as follows:[36]
But they didn’t, Mr Selman, they didn’t wash their hands of you because on the first day that you give them a worker’s compensation certificate, which just happens to be the same day that Mr Weist says is the first time you ever told him that you had suffered a work condition, he organises a doctor’s appointment, he goes to the doctor’s appointment with you, you come back to the workplace, he writes a return to work program on lighter duties so that you can continue to work. They do respond to the injury as soon as you report it, don’t they?
[36] Ibid.
Mr Selman disagreed and said his employer did not respond to him as suggested.[37]
[37] Ibid.
Ms Slack took Mr Selman to several documents and medical reports drawing a distinction between whether he referred to his shoulder as having a ‘twitch’ a ‘twinge’ or a ‘sharp twinge’.[38]
[38] Ibid 19.
Whilst I note the difference in the descriptors used, I see no reason to place any weight on these differences. The fact that an individual can give imprecise and sometimes sloppy reporting of his symptoms does not necessarily warrant any conclusions being drawn. The more important issue for my purposes is when Mr Selman first started suffering his symptoms and the connection, if any, to his employment.
Ms Slack noted that when Mr Selman was referred to Mr Goonatillake on 14 September 2020, he had given a two-week history of spontaneous onset left shoulder pain when he awoke with a lot of pain and inability to elevate his arm. Mr Selman disagreed with this history and responded:[39]
That’s not correct. I had pain all along from the day of the injury and it wasn’t sort of a spontaneous, whatever its meaning is, or anything to that effect. The pain has always been there and that’s why I was having the daily massages from my wife, but as far as this spontaneous thing I have no idea what that’s all about, sorry.
[39] Ibid 24-25.
Mr Selman’s evidence was that on 14 September 2020 he reported the onset of symptoms on 26 August 2020 and that was not recorded by Mr Goonatillake. In his subsequent report, dated 19 October 2020, Mr Goonatillake records the twinge occurring on 26 August 2020 when Mr Selman was lifting gates above shoulder height. When asked whether this was the first time he reported this sequence of events to the doctor, Mr Selman said that was not correct.[40]
[40] Ibid 26.

Ms Slack then stated:[41]
It’s only after you have been to the doctors and were advised that your shoulder looked pretty serious and that investigations had to be undertaken, including an MRI, that you invented the story of it being first experienced at work on 26 August, isn’t it?
[41] Ibid.
Mr Selman responded by stating ‘I’m saying that’s a joke’.[42]
[42] Ibid 27.
Ms Slack referred Mr Selman to other documents completed as part of his employment, including a pre-employment medical for his new employer. In that document, dated 9 December 2020, Mr Selman has declared that he was not currently receiving any medical treatment, had not had any time off work for any injury or illness and had not had a Workers’ Compensation claim or any work-related illness or injury and does not currently have a Workers’ Compensation claim either.[43]
[43] Exhibit R2, 322.
Mr Selman responded by saying ‘well, that question wasn’t clear enough. Obviously I didn’t obviously read it properly. It wasn’t clear enough’.[44]
[44] Transcript, 38.
As correctly stated by Ms Slack, at the time when Mr Selman completed the pre-employment medical form for his new employer, he was in the midst of this current Workers’ Compensation claim with the Respondent. His explanation that he did not declare it ‘because a decision hadn’t been made yet’ is implausible.[45]
[45] Ibid 37.
Oral evidence – Mark Weist
Mr Weist provided a witness statement dated 4 April 2022.[46] He also gave oral evidence at the hearing and was cross-examined by Mr Stewart. Mr Weist is a Supervisor Operations/Bulk at FedEx Express and was Mr Selman’s supervisor in August and September 2020.
[46] Exhibit R2, 43.
In his statement, Mr Weist stated that he recalled speaking with Mr Selman on 27 August 2020 because he had asked for the day off on Friday 28 August 2020 to attend a wedding. No mention of a sore shoulder was made at that time to him.[47]
[47] Ibid.
In his witness statement dated 6 April 2022, Mr Selman said he thought some of Mr Weist’s statements were incorrect. He said he did not ask for the day off, rather he asked to finish work early. This was denied and he worked his usual hours, after which he and his wife drove to Bunbury that night for a 50^th birthday party.[48]
[48] Exhibit A2.
I asked Mr Weist if he was working off his memory when he made this statement or whether he kept notes of his conversations. He responded:[49]
I was working off memory. I recall him having a discussion with me that he wanted time off for somebody’s wedding, or whatever function it was, and, of course, it stuck in my mind because we normally have a very clear rule where we say, ‘If you need time off, please give us 21 days’ notice so we can plan it.
[49] Transcript, 107.
Along with his witness statement, Mr Weist annexed an email exchange he had with Ms Copley, the Health, Wellness and Rehabilitation Specialist at FedEx Express where he advised Ms Copley that Mr Selman had been off work that week, complaining of a sore shoulder. He stated in this email that no reference had been made to it being work related. In her response, Ms Copley said the process for a non-work-related injury is for the worker to provide a full clearance certificate to return to work.[50]
[50] Exhibit R2, 45.
Also annexed to his statement was a ‘Detailed Report’ of the incident dated 26 August 2020 and reported on 22 September 2020.[51] The description of the report detailed as follows:
Bulk driver Ralph Selman called in sick on Monday the 31.08 advising of a sore shoulder and has been providing Med Certs from a local GP since. No reference (after explicitly being asked was made to this being work related). Ralph advised that he needed further examinations to establish the cause. On Sept 22^nd, Ralph provided a first certificate of incapacity for work cover and upon being questioned as to his well-being, cited that he thinks he ‘may have injured himself at work on the 26.08 at Centurian Transport during a delivery…’ I Questioned why he did not raise these concerns/report the potential injury on the workdays after the perceived injury, he stated he thought ‘it was nothing major’.
[51] Ibid 46.
Mr Weist expanded on his written statement in his oral evidence to say that all employees were well aware of the need to report possible workplace injuries and the team had what they called mandatory ‘morning warmup’ meetings. He said during these meetings they push key messages relating to injuries and accidents and no matter how minor it is, they are told to report it.[52] Mr Weist’s evidence was that Mr Selman did not report the injury to him or anybody else. He explained:[53]
We have a standardised process. So, as soon as somebody reports something to us, we have what’s called an ‘Incident management system’. So, an immediate record is made of any event that took place. Like I say, injuries, motor vehicle accidents, anything that happens. We have an afternoon shift, what we call ‘the closers’, the closing supervisor. So, we start very early in the morning. So, even if we leave, there is a handover from the afternoon shift, who tell us of events that took place during the late afternoon and there’s no record of anything having been reported here.
[52] Transcript,104.
[53] Ibid.
When cross-examined by Mr Stewart, Mr Weist clarified that he expressly asked Mr Selman on the morning of 31 August 2020 if the injury was work-related to which Mr Selman responded ‘no’. He said if there was that possibility, the company’s medical provider would have given immediate assistance. Mr Weist’s evidence was that an appointment would have been made for Mr Selman the following day.[54]
[54] Ibid 104-105.
Mr Stewart suggested that it would not be uncommon for a worker to not initially report an injury and to try and push through it to return to work. Mr Weist responded that that was exactly the opposite of what his experience was.[55]
[55] Ibid 106.
Other evidence relating to the reporting of the injury
Mr Selman visited his GP, Dr Visvanathan whose notes were included in Exhibit R2. The medical certificate dated 31 August 2020 simply certifies Mr Selman as unfit for work from 31 August 2020 until 4 September 2020 due to a ‘medical condition’.[56] He is referred to Mr Goonatillake on 3 September 2020 ‘for an opinion and management’. The report states that he has hurt his left shoulder and is in discomfort with the ultrasound showing a full thickness tears in the shoulder joint.[57] Medical certificates are again provided on 3,4 and 17 September 2020 certifying him as unfit for work until 1 October 2020 for a generic ‘medical condition’.[58]
[56] Exhibit R2, 232.
[57] Ibid 233.
[58] Ibid 235-237.
The ‘WorkCover WA – First certificate of capacity’, dated 21 September 2020, gives the first written diagnosis of a ‘left shoulder injury’,[59] whereas previously Mr Selman had just had a ‘medical condition’ noted on his medical certificates.
[59] Exhibit A1, 72.
A medical certificate from Dr Chandran of Sonic Health Plus, dated 23 September 2020, noted a possible Workers’ Compensation claim for the left shoulder injury which occurred after lifting the gate at work.[60]
[60] Exhibit R2, 306.
When giving his evidence, Mr Goonatillake referred to his opinion regarding causation for Mr Selman’s incapacity for work. He had reported on 17 March 2021, that the injury was sustained on 26 August 2020 as a direct result of lifting gates. When asked why he formed that view he said it was based on the information given to him by the patient when Mr Selman said, ‘he listed [sic] some gates and felt pain in his shoulder, not having had any pain in his shoulder prior to that’.[61]
[61] Transcript, 55-56.
Mr Goonatillake further elaborated that in his opinion the mechanism of the injury was consistent with the description given by Mr Selman which resulted in a rotator cuff tear.[62]
[62] Ibid 56.
As noted above in paragraph 55, Mr Goonatillake, in his initial report dated 14 September 2020, did not report the onset of symptoms for Mr Selman on 26 August 2020. When questioned about this, Mr Selman said it was an error by the doctor.
In cross-examination Mr Goonatillake confirmed that during the consultation on 14 September 2020 no mention was made by Mr Selman of his injury being a work-related injury.[63]
[63] Ibid 58.
Mr Goonatillake confirmed that he recommended Mr Selman undergo an MRI and an x-ray and he further consulted with him on 12 October 2020. At that time, it was recommended Mr Selman undergo surgery. The doctor again stated no mention was made of a work-related injury.[64]
[64] Ibid.
Mr Goonatillake further stated that he saw Mr Selman again on 19 October 2020 and at that time he ‘think he [Mr Selman] came – it seems he came back to tell me a little bit more of what he’d remembered about his history’.[65]
[65] Ibid.
Conclusions on inconsistencies
A threshold question for me to consider is whether the mechanism of the injury actually occurred as Mr Selman has contended and if so, whether the incapacity that resulted was because of the work-related incident.
Mr Selman contends that he was lifting some gates on his truck on 26 August 2020 when he felt a ‘twitch’ in his left shoulder which resulted in pain and discomfort. He said he thought it was just a muscle spasm which would pass relatively quickly. He said he got out of bed on 31 August 2020 and could not move his shoulder. He went to see his GP who certified him as unfit for work. He said he thought that he would have mentioned to his GP that it was work-related, but this is not reflected in the contemporaneous medical report.[66]
[66] Exhibit A1, 41; 75.
An ultrasound of the left shoulder on 1 September 2020 reported a full-thickness, partial width tear of the supraspinatus tendon.[67]
[67] Ibid 74.
Mr Selman was then referred to Mr Goonatillake who reported on 14 September 2020:[68]
Thank you for asking me to see Mr Selman who is a 66 year old right handed bulk truck driver who presents with a two week history of spontaneous onset left shoulder pain when he awoke with a lot of pain and an inability to elevate his arm. This settled over a couple of days and his symptoms have also improved significantly since then. He does have intermittent discomfort with overhead activities. He has no past history of shoulder problems. I note a history of COPD and prostate lesion that is being watched.
[68] Ibid 77.
In the medical certificate dated 17 September 2020 reference is made to a medical condition with no specific diagnosis.[69]
[69] Ibid 78.
On 21 September 2020, the first certificate of capacity was provided indicating Mr Selman’s injury may be a work-related injury.[70]
[70] Ibid 72.
On 30 September 2020, an MRI report was provided together with an x-ray report dated 1 October 2020 which confirmed a ‘full thickness tear involving the full width of the distal supraspinatus tendon’.[71]
[71] Ibid 79.
On 12 October 2020, Mr Goonatillake reviews Mr Selman and recommends an ‘arthroscopic acromioplasty, rotator cuff repair and biceps tenodesis’.[72]
[72] Ibid 82.
On 19 October 2020, Mr Selman again consulted Mr Goonatillake who reported that Mr Selman presented with a ‘further description of his left shoulder symptoms’.[73] At this point, for the first time, reference is made to lifting the gates on Wednesday, 26 August 2020, followed by a twinge in Mr Selman’s left shoulder, resulting in significant pain the following Monday, prompting him to see his GP.
[73] Ibid 83.
When considering the probative value of different pieces of evidence, it is helpful to consider any contemporaneous corroborative documentary evidence. The three reports of Mr Goonatillake detailed above, make it clear that the first mention made to Mr Goonatillake of any symptoms prior to 31 August 2020 was when Mr Selman consulted him for the third time on 19 October 2020. This directly contradicts Mr Selman’s oral evidence and is consistent with Mr Goonatillake’s oral evidence.
Mr Weist and Mr Selman differ on key points of their evidence. Mr Selman maintains that he told Mr Weist of the work-related injury on 31 August 2020, however Mr Weist denies this occurred.
It is not uncommon for people’s memories of events to differ and not be entirely accurate. As stated before, contemporaneous documents which help to support a memory are invaluable in assessing the weight to be applied to any evidence.
Therefore, I am inclined to place more weight on Mr Weist’s evidence because of the contemporaneous email exchange he had with Ms Copley in the week following the claimed date of injury. He has asked Ms Copley about the process for a worker who is off work with a non-work-related injury. This directly contradicts Mr Selman’s evidence that he informed Mr Weist of the incident on the morning of 31 August 2020 when he phoned in sick.
In considering the oral evidence and the documents provided, I make the following findings of fact:
(a)Mr Selman contends he suffered an injury at work on 26 August 2020 when he felt a twitch/twinge/muscle spasm in his left shoulder.
(b)Mr Selman had a conversation with Mr Weist on 27 August 2020 either asking for the day off or to leave work early on 28 August 2020 and did not mention his injury to Mr Weist at that time.
(c)Mr Selman did not inform his GP until 21 September 2020 that his injury may have been work related.
(d)Mr Selman did not tell Mr Goonatillake until 19 October 2020 about the mechanism of his injury being related to work.
(e)Mr Selman’s explanation regarding the inconsistencies between his evidence and that of his employers and medical providers is not accepted. Mr Selman repeatedly stated that he told the doctors and Mr Weist that the injury occurred on 26 August 2020 however not one of the written reports support this contention.
(f)The documents do not support Mr Selman’s statement that the Respondent ‘completely washed their hands of me’ when he reported his injury on Monday 31 August 2020. As noted by Ms Slack, as soon as Mr Weist became aware that this was a possible work-related injury, the appropriate referrals and appointments were made to assist Mr Selman.
Can the Tribunal be satisfied on the balance of probabilities that the causative event relied on by the Applicant to establish his entitlement to compensation actually occurred
As found above, I am not satisfied that Mr Selman informed either his employer or the relevant medical practitioners that the incident as described by himself occurred on 26 August 2020 until several weeks after the alleged incident.
That is not to say however that the incident did not occur on that date. Mr Selman was quite emphatic in his oral evidence that the relevant details were not recorded by any of his medical practitioners as well as his supervisor.
The question for this Tribunal, therefore, is whether I can be satisfied on the balance of probabilities that the incident that Mr Selman claims occurred which resulted in his injury, actually occurred.
In deciding that question I am required to be satisfied ‘on the balance of probabilities that facts exist which warrant an exercise of the power’.[74]
[74] Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599, 601.
As noted by His Honour Dixon CJ in Jones v Dunkel[75] ‘[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’.[76]
[75] (1959) 101 CLR 298.
[76] Ibid 305.
In this matter, Mr Selman contends that he told relevant work personnel as well as medical practitioners that he had injured himself at work on 26 August 2020. He thought the injury was slight and it would resolve by itself. As demonstrated in the medical reports, the injury was far more severe than originally thought, with the eventual recommendation being that he have surgery.
Unfortunately, however, not one of the reports produced, both medical and those of Mr Weist, support Mr Selman’s contention. In fact, no reference is made to a work-related injury, despite there being ample opportunity to do so until well after the event. As I stated earlier in these reasons, I do not accept Mr Selman’s explanation for the discrepancy in the records. If it had been a case of two witnesses having different recollections of an event, I may be prepared to take a beneficial view in favour of the worker. That is not the case here.
As explained by Mr Weist in his oral evidence, all staff were cogent of the need to notify their employer of any potential compensable injury suffered in the workplace. Mr Weist clearly understood the injury to not be work related as evidenced by his email to Ms Copley.
Mr Selman visited his GP on several occasions and at no time mentioned a possible workers compensation claim. Mr Goonatillake was not advised until well after his initial consultation of the alleged sequence of events.
When the evidence is carefully weighed up, I am unable to make a finding that there is sufficient evidence to satisfy me on the balance of probabilities that the events Mr Selman allege occurred, actually occurred. That is, the documentary evidence does not provide any contemporaneous support for his contentions. In his oral evidence he claimed that each practitioner and professional failed to record his history accurately. Whilst one oversight could be explained, to have a repeated and consistent failure to record accurately by different individuals is at best possible, but highly improbable.
I wish to make it clear in these reasons that I am not agreeing with Ms Slack’s contention put to Mr Selman during cross examination that he changed his claim to a Worker’s Compensation claim, retrospectively changing the history so that his more serious injury and its treatment could be paid for by the employer.[77]
[77] Transcript, 26.
As noted earlier in these reasons, Mr Selman described Ms Slack’s contention ‘as a joke’.[78]
[78] Ibid 27.
For me to make a finding along those lines would be tantamount to accusing Mr Selman of a fraudulent claim which I am not doing.
What I am saying however, is that there is simply insufficient probative evidence to persuade me on the balance of probabilities that the mechanism of the injury occurred as Mr Selman said it did. This is a question of evidence and the standard of proof which must be met. The documents simply do not support what Mr Selman said happened and I am unable to be reasonably satisfied as to the truth of his contentions.
Based on the contemporaneous medical notes provided as well as the evidence of Mr Weist, it is more likely that Mr Selman awoke on Monday 31 August 2020 with a sore shoulder which ultimately was shown to be a tear in his rotator cuff.
Mr Selman has contended that he suffered an injury on 26 August 2020 which was a full thickness tear to his left shoulder. He further contends that it is an injury, in the primary sense as contemplated by s 5A(1)(b) of the Act.
The Respondent has submitted that the injury is not an acute tear, but rather an atrophic tear as Mr Selman’s symptoms developed overtime.[79]
[79] Ibid 122.
For the reasons given above, I am unable to be satisfied that Mr Selman suffered an injury as defined by s 5A(1)(b) of the Act on 26 August 2020.
For the sake of completeness, I note Mr Selman did not contend that he suffered a disease and I have not considered those provisions, other than to observe there is insufficient medical and lay evidence to address the required standard of proof.
CONCLUSION
Having considered the oral and documentary evidence provided I find that the Applicant, Mr Selman does not suffer from an ‘injury’ as defined by s 5A(1)(b) of the Act arising out of or in the course of his employment.
DECISION
The Reviewable Decision, dated 11 December 2020, which rejected the Applicant’s claim for Worker Compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth), is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member M East

....................[Sgd]..............................................
Associate
Dated: 28 July 2022

Date(s) of hearing: 8 and 11 April 2022

Counsel for the Applicant: Adam Stewart

Solicitors for the Applicant: Slater & Gordon

Counsel for the Respondent: Kate Slack

Solicitors for the Respondent: Moray & Agnew

[2022] AATA 2386

28 July 2022

Key Legal Topics

Areas of Law

Employment Law

Negligence & Tort

Legal Concepts

Causation

Duty of Care

Expert Evidence

Negligence

Remedies

Statutory Construction

Date(s) of hearing:	8 and 11 April 2022
Counsel for the Applicant:	Adam Stewart
Solicitors for the Applicant:	Slater & Gordon
Counsel for the Respondent:	Kate Slack
Solicitors for the Respondent:	Moray & Agnew