Sherman Young and TNT Australia Pty Ltd

[2015] AATA 385

[2015] AATA 385

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4890
Re	Sherman Young
APPLICANT
And	TNT Australia Pty Ltd
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	2 June 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member Bernard J McCabe

CATCHWORDS

WORKERS’ COMPENSATION – claim for compensation in respect of injury to left shoulder – inconsistent accounts of events surrounding injury – medical evidence of underlying non-work-related condition – reviewable decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth)

REASONS FOR DECISION

Senior Member Bernard J McCabe

2 June 2015

1. Sherman Young has a sore shoulder. He says it is the product of a work-related injury. He made a claim against his former employer, TNT Australia Pty Ltd (“TNT”, the respondent in these proceedings), under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). TNT rejected the claim. It says the condition is not attributable to anything that occurred in the workplace. Mr Young has asked the Tribunal to revisit the reviewable decision to that effect dated 26 July 2013.

2. I am not satisfied that TNT is liable for Mr Young’s left shoulder condition. I explain my reasons below.

   WHAT HAPPENED?

3. The applicant was employed by TNT between September 2007 and December 2012.
   He claims he was injured at work on 11 October 2012. In his oral evidence at the resumed hearing,[1] he explained he was standing at a conveyor belt. His job was to read the address on each parcel and then either push the parcel forward off the conveyor onto a kind of chute with rollers so it could be despatched to one destination; or, pick up the parcel and place it in one of several cages positioned behind him for distribution elsewhere. Some time that morning – he did not remember when – he said he pushed a parcel away from him across the conveyor belt. He demonstrated the action during the course of his evidence: he used both arms to thrust away from his body. He said in oral evidence that he felt a sharp pain in his left shoulder as he extended his arms. He said he did not stop work; he was able to complete the work on that shift without a break.
   

   [1] The hearing commenced on 10 December 2014 but was adjourned so Mr Young might obtain additional evidence. The hearing resumed on 4 May 2015.

   He also agreed in oral evidence that the sharp pain did not persist throughout the rest of the shift, although he may have felt an aching sensation.

4. What happened next is less clear, because Mr Young has given different accounts and appears confused as to the details. In his statement (exhibit 4), he suggests he went home at the end of the shift without reporting the incident. He treated himself with a topical painkiller that evening. He thought he was alright. But he said the pain returned during the course of the next shift on 12 October 2012, so he went to the freight office to make a call to his supervisor after he finished his morning duties. He said he called Mr Pecko, the supervisor, from one of the telephones in the freight office. Mr Pecko denied receiving the call. In his oral evidence and statement, Mr Pecko insisted TNT took workplace health and safety very seriously; if an incident were reported, a formal process would have been commenced at that point: exhibit 5. TNT obtained call charge records which showed there were no calls from either telephone to Mr Pecko’s number
   on 12 October 2012.

5. Mr Pecko’s evidence and the evidence of the call charge records were put to Mr Young on the first day of the hearing. Mr Young responded that he may not have called
   Mr Pecko’s number directly: he suggested he might have called another TNT employee, perhaps a receptionist, and asked to be connected with Mr Pecko’s mobile number (transcript at p 32). An adjournment was allowed so additional telephone records could be obtained.

6. Mr Young’s legal representatives ceased acting for him during the adjournment. Thereafter he represented himself. When the hearing resumed, I went back to the beginning and again asked Mr Young to tell me the story of what happened
   on 11 October 2012. After he explained how the injury occurred, I asked him to focus on what happened next. He said he attended the freight office at 11am, which was towards the end of the shift on 11 October. He recalled mentioning to one of the staff there that he had a sore shoulder and enquired whether he could access a physiotherapist who regularly attended TNT’s premises. He recalled the staff member in the office retorting, “Good luck”. Mr Young said he then rang his supervisor, Mr Pecko, and reported the injury, and asked for the opportunity to see the physiotherapist. Mr Young recalled
   Mr Pecko saying words to the effect that he would “look into it”.

7. In the course of his evidence at the resumed hearing, Mr Young agreed he might not have actually mentioned the incident to Mr Pecko during the course of the telephone call.
   He agreed he might have just said he had a sore shoulder, and that he would like to see the physiotherapist.

8. The applicant’s oral evidence at the resumed hearing as to the date on which he made the call was inconsistent with his earlier statement. In cross-examination, he backtracked again, and appeared uncertain about the date on which he went to the office and contacted Mr Pecko. But his recollection of going to the office and making a call
   on 12 October cannot be accepted given the call charge records tendered at the hearing show the telephones in the office were not used to contact Mr Pecko, either directly or through the switch, on 12 October. Should I accept Mr Young visited the office
   on 11 October as he suggested at the resumed hearing?

9. Mr Young emphasised in his oral evidence at the resumed hearing that he was diligent about keeping his supervisor informed of any incidents that occurred in the workplace. He said he believed in full disclosure: if something happened, he would report it immediately. Mr Clark, counsel for TNT, tendered evidence of previous incident reports that the applicant had filed promptly (exhibits 7 and 8). Although he was wary of
   Mr Clark in cross-examination, Mr Young appeared to accept his past practice was indicative of his diligent approach to reporting. But that evidence is difficult to reconcile with Mr Young’s own account of the way in which he handled the incident
   on 11 October. Mr Young agreed he might not have even mentioned the incident during the course of the conversation he said he had with Mr Pecko on 11 or 12 October. He did not file a formal report until 19 October 2012 after he had a discussion with another worker who had a shoulder condition. Mr Young referred in his oral evidence to what he regarded as a virtual epidemic of shoulder injuries in the workplace.

10. TNT pointed out Mr Young did not mention the incident of 11 October to Dr McEniery, a consultant orthopaedic surgeon who assessed Mr Young on 23 November 2012
    (and again on 18 March 2014) and prepared two reports at the request of the respondent. In his first report dated 7 December 2012 (exhibit 1 at pp 47ff), Dr McEniery said he directly questioned Mr Young about the events of 11 October 2012 but that Mr Young responded “nothing happened then”. In his supplementary report of 9 April 2014
    (exhibit 3b at p 3), Dr McEniery said:

    [Mr Young] has had a partial incapacity due to his left shoulder symptoms that have restricted his ability to lift objects overhead. However he has not had an injury as such to his left shoulder and Mr Young has been quite consistent in that there was no trauma or event that he associates with his left shoulder symptoms whilst working at TNT.

11. Mr Young’s account of what he did on 12 October 2012 is not supported by the telephone records. He modified his account after he was confronted with the call charge records. He also apparently denied to Dr McEniery that he was injured on

    
    

    11 October 2012. It is difficult to be sure what (if anything) happened on that date given the inconsistencies and the applicant’s vague and confused recollection. I do not think I can rely on the applicant’s account of what occurred.  There is no independent evidence suggesting the applicant was injured on that date. The medical evidence must be read in light of that history.

12. Dr Shaw, a consultant orthopaedic surgeon called by the applicant, gave evidence on the first day of the hearing. Dr Shaw concluded Mr Young suffered from left shoulder subacromial bursitis. He reported (exhibit 2 at p 5):

    The mechanism of injury was described as repetitive pushing of boxes from one conveyor to the other. This activity is consistent with one that will cause rotator cuff tendinitis and subsequent subacromial bursitis with impingement.

13. In cross-examination, Dr Shaw agreed that subacromial bursitis is often a degenerative condition, but said it is also potentially the result of an injury (transcript at p 12).

    
    

    Given Mr Young’s evidence of an incident at work on 11 October, Dr Shaw opined it was more likely that the condition was work-related: transcript at p 13; see also pp 16-17. But if one does not accept the history of an incident occurring on 11 October, Dr Shaw’s expert opinion must be qualified.

14. Dr McEniery concluded in his first report that the applicant was suffering from a

    
    left subacromial impingement and rotator cuff tear

    (exhibit one at p 51). In his first report, Dr McEniery explained that his review of the radiological evidence and the history led him to the conclusion that Mr Young experienced an underlying degenerative condition that had been present for some time, and which was not attributable to the work place (exhibit 1 at p 52).

15. Given my findings about the history provided by Mr Young, I am not satisfied the medical evidence enables me to conclude his shoulder condition:

    ·arose out of, or in the course of, his employment (if the condition is properly characterised as an injury simplicter); or

    ·was contributed to, to a significant degree, by the employee's employment (if the condition is properly characterised as a disease).

16. If one discounts the evidence of an incident on 11 October 2012, the medical evidence suggests the most likely explanation for Mr Young’s condition is the underlying,

    
    

    long-term degenerative condition.

    CONCLUSION

17. The reviewable decision dated 26 July 2013 is affirmed.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 2 June 2015

Dates of hearing	10 December 2014 4 May 2015
Applicant	In person
Counsel for the Joined Party	Mr C Clark
Solicitors for the Joined Party	Moray & Agnew Lawyers