Shields and Comcare (Compensation)

Shields and Comcare (Compensation) [2021] AATA 1868 (2 June 2021)
Division:GENERAL DIVISION
File Number: 2016/5824
Re:Betty Shields
APPLICANT

AndComcare
RESPONDENT

Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:2 June 2021
Place:Melbourne

The decision under review is affirmed.
............................[sgd]............................................
The Hon. Matthew Groom, Senior Member
Catchwords
COMPENSATION - permanent impairment – review of determinations that applicant was not entitled to compensation for condition under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 – whether a permeant impairment rating of 10% or more should be applied – whether entitled to non-economic loss - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Cases
ACT Department of Health and Nikolovski and Comcare, Re (1996) 42 ALD 599
Australian Postal Commission v Burgazoff (1989) 10 AAR 296
Black and Comcare [2009] AATA 593
Canute v Comcare (2006) HCA 47; (2006) 91 ALD 552
Commonwealth v Borg [1991] FCA 710 20 AAR 299
Dawson and Comcare [2013] AATA 836; (2013) 138 ALD 430
Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81
McDonald v Director-General of Social Security [1984] FCA 59
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Twyman and Commonwealth, Re (1987) 13 ALD 402
Ward v Western Australia [1996] FCA 1452
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
2 June 2021
Introduction

This matter involves a review of a decision made by delegate of the respondent dated 2 September 2016 which affirmed an earlier decision denying liability to pay compensation to the applicant for permanent impairment and non-economic loss under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) in respect of her left shoulder condition.
Background Information
The applicant is 75 years of age. She was born in the Philippines and migrated to Australia in 1982. While living in the Philippines the applicant worked as a secretary and librarian at the Philippines College of Law. After arriving in Australia, the applicant was employed as a data input operator with the Australian Securities & Investments Commission (“ASIC”). The applicant worked with ASIC from 1990 through to her retirement in 2012.
On 2 November 2006, the applicant made a claim in respect of an injury to her right shoulder and arm which she stated had occurred on or around 24 July 2006, while undertaking data processing work in the course of her employment with ASIC.
On 21 November 2006, respondent accepted liability under section 14 of the SRC Act for ‘sprain of shoulder & upper arm (right)’.
On 17 August 2006, the applicant’s General Practitioner (“GP”), Dr Buras, certified the applicant as being fit for only five hours work per day with restrictions on lifting. The applicant engaged in a rehabilitation and graduated return to work program and subsequently her hours of work increased. As at December 2007, the applicant was certified as being fit for six hours work per day.
On 8 May 2008, the applicant underwent surgery in respect of her right shoulder condition in the form of rotator cuff surgery and acromioplasty. In the post-surgery recovery period the applicant was certified as being unfit for work but from 23 December 2008 the applicant was certified as being fit for three to four hours work per day. The applicant engaged in a further rehabilitation and graduated return to work program and on 25 November 2008 the applicant was certified as being fit for normal hours but subject to restrictions on lifting more than five kilograms and the ability to rest and exercise each hour.
In May and July 2009, the applicant submitted claims for compensation for permanent impairment and noneconomic loss in respect of her right shoulder condition.
The applicant was subsequently assessed by consultant orthopaedic surgeon Mr Iain Kelman. Mr Kelman assessed the applicant at that time as having an 11% degree of permanent impairment of her right shoulder.
In early 2009 the applicant attended her GP Dr Buras in relation to ongoing pain in her left shoulder. On 18 March 2009, an x-ray and ultrasound were performed on the applicant’s left shoulder which showed evidence of a small tear of the supraspinatus muscle and fluid surrounding the biceps.
On 26 May 2009, the applicant lodged a claim for workers compensation in relation to a new left shoulder injury.
On 17 August 2009, the respondent awarded the applicant compensation of $30,119.95 in respect of an 11% whole person impairment in respect of her right shoulder injury.
On 13 October 2009, the respondent refused the claim for a new left shoulder injury on the basis that there was no evidence to establish a new incident that would warrant a new claim, although the respondent acknowledged that there was evidence that the applicant’s left shoulder condition may have developed as a result of compensating for her compensable right shoulder condition.
On 10 November 2009, the respondent accepted a condition of aggravation supraspinatus (muscle) (tendon) strain (left) (tear) and aggravation of synovitis and tenosynovitis (left) (rotator cuff only) as a secondary condition to her original right shoulder injury.
On 25 November 2009, the applicant’s GP diagnosed the applicant with “left shoulder pain, stiffness and limited function due to abnormal use at work, causing left shoulder rotator cuff tear and impingement” however the applicant was still certified fit for full-time work.
The applicant was subsequently referred to orthopaedic surgeon Mr Peter Rehfisch who recommended surgery on her left shoulder.
On 23 May 2011, the applicant lodged a claim for permanent impairment in respect of her left shoulder condition. The applicant was once again assessed by orthopaedic surgeon Mr Kelman. Mr Kelman assessed the applicant as suffering from a 3% whole person impairment in respect of her left shoulder.
On 27 May 2010, the applicant underwent surgery on her left shoulder in the form of acromioplasty and rotator cuff repair. Following surgery, the applicant was recommended to undertake physiotherapy before again recommencing work on a graduated return to work program.
On 31 October 2011, the respondent denied liability to pay compensation to permanent impairment of the left shoulder on the basis that the degree of permanent impairment was below the required threshold amount.
On 31 August 2012, the applicant retired from a position with ASIC and 66 years of age. At the time of retirement the applicant was certified as being fit for work for normal hours but subject to the condition that she be able to rest and exercise each hour.
On 25 January 2016, the applicant lodged a further claim for permanent impairment and noneconomic loss in respect of her left shoulder condition.
On 30 May 2016, the respondent again rejected claim relying on a further report of Mr Kelman dated 28 April 2016. In that report Mr Kelman assessed the applicant as suffering a 9% whole person impairment and with no more than 5% attributable to her work.
On 27 July 2016, the applicant requested reconsideration of the respondent’s rejection of her claim for permanent impairment and noneconomic loss in respect of the left shoulder.
On 2 September 2016, respondent once again affirmed its earlier decision denying the claim.
On 31 October 2016, the applicant sought review that decision which is the matter presently before this Tribunal.
Relevant law
Statutory provisions
14 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.
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(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.
(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.
(7A) Subject to section 25, if:
(a) the employee has a permanent impairment that is a hearing loss; and
(b) Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a) the impairment constituted by the loss, or the loss of the use, of a finger;
(b) the impairment constituted by the loss, or the loss of the use, of a toe;
(c) the impairment constituted by the loss of the sense of taste;
(d) the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
27 Compensation for non‑economic loss
(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.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non‑economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non‑economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
28 Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a) criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b) criteria by reference to which the degree of non‑economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c) methods by which the degree of permanent impairment and the degree of non‑economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.
(3A) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, is a legislative instrument made by the Minister on the day on which the Guide, or variation or revocation, is approved by the Minister.
(4) Where Comcare, a licensee or the Administrative Appeals Tribunal is required to assess or re‑assess, or review the assessment or re‑assessment of, the degree of permanent impairment of an employee resulting from an injury, or the degree of non‑economic loss suffered by an employee, the provisions of the approved Guide are binding on Comcare, the licensee or the Administrative Appeals Tribunal, as the case may be, in the carrying out of that assessment, re‑assessment or review, and the assessment, re‑assessment or review shall be made under the relevant provisions of the approved Guide.
(5) The percentage of permanent impairment or non‑economic loss suffered by an employee as a result of an injury ascertained under the methods referred to in paragraph (1)(c) may be 0%.
(6) In preparing criteria for the purposes of paragraphs (1)(a) and (b), or in varying those criteria, Comcare shall have regard to medical opinion concerning the nature and effect (including possible effect) of the injury and the extent (if any) to which impairment resulting from the injury, or non‑economic loss resulting from the injury or impairment, may reasonably be capable of being reduced or removed.
(8) Comcare shall make copies of the “Guide to the Assessment of the Degree of Permanent Impairment” that has been approved by the Minister, and of any variation of that Guide that has been so approved, available upon application by a person and payment of the prescribed fee (if any).
Statutory Definitions
4 Interpretation
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
impairment means 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.
non‑economic loss, in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non‑economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware.
permanent means likely to continue indefinitely.
significant degree has the meaning given by subsection 5B(3).
5A Definition 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;
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.
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a) a reasonable appraisal of the employee’s performance;
(b) a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c) a reasonable suspension action in respect of the employee’s employment;
(d) a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e) anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f) anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her 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.
Approved Guide
In considering this matter the Tribunal has also had regard to the Approved Guide prepared by the respondent in accordance with section 28 of the SRC Act entitled “Guide to the Assessment of the Degree of Permanent Impairment” that has been approved by the Minister and is currently in force (the “Approved Guide”).
Onus of proof
The Tribunal is satisfied that in relation to the matter presently before the Tribunal there is no formal onus of proof on either party but rather, the Tribunal must be reasonably satisfied in respect of any finding on the basis of the relevant and probative material before it.[1] However, it is appropriate to note, consistent with this principle, that where the issue before the Tribunal is whether an entitlement to compensation is made out, the Tribunal must be satisfied on the basis of relevant and probative material before it, that any statutory requirements that underpin such an entitlement are satisfied.[2]
[1] See Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; McDonald v Director-General of Social Security (1984) 1 FCR 354; Ward v Western Australia [1996] FCA 1452; Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; and also Re Twyman and Commonwealth (1987) 13 ALD 402.
[2] See Commonwealth v Borg (1991) 20 AAR 299; Re ACT Department of Health and Nikolovski and Comcare (1996) 42 ALD 599; and also Australian Postal Commission v Burgazoff (1989) 10 AAR 296.
Issue
The issue before the Tribunal is:
(a)whether the applicant’s left shoulder condition resulted in a permanent impairment to the applicant of 10% degree or greater, such as to be entitled to compensation under section 24 of the SRC Act? and if so;
(b)what is the applicant’s entitlement to compensation for non-economic loss under section 27 of the SRC Act?
Consideration and findings
Further medical evidence
In the applicant’s claim form for non-economic compensation dated 28 July 2009, the Doctor’s section includes a notation describing the applicant as having “minor problems with R shoulder.. Her major problems are now related to her L shoulder”.
In his report dated 3 August 2009, consultant Orthopaedic Surgeon Mr Iain Kelman noted various symptoms with respect to the applicant’s left shoulder as follows:
She [the applicant] now said she has pain in the left shoulder and investigations were carried out in the form of an ultrasound on 18 March 2009 and this has demonstrated tendinopathy of the left subscapularis without any definite tear, as well as fluid on the tendon sheath of the longhead of biceps. There was also a small tear noted in the anterior aspect of the supraspinatus muscle. X-rays taken at the same time of the left shoulder showed a normal glenohumeral articulation and no evidence of acromioclavicular degenerative changes.
She also complained of paraesthesia in both hands at the present time.
Her current symptoms are as follows:
·Pain over the left shoulder which she traded at 6/10 on the visual analogue scale. This pain is exacerbated by reaching above shoulder level.
·She has pain in both left and right shoulders at night.
Present work status:
She is able to carry out her normal pre-injury data input on a full-time basis, but has a 10-minute rest break every hour.
Present activities:
She is able to carry out the personal activities of daily living without assistance. She is able to drive the car. She does the cooking. She said she has difficulty with the vacuuming and this is done by her friends. She has difficulty picking up the laundry and her clothesline has been lowered.
She complained of pain when carrying shopping bags. She does not do the gardening-a gardener attends once a month in order to mow the lawns and tidy her garden, and this is funded through Comcare.
Current and proposed treatment:
She said she is currently receiving physiotherapy for her left shoulder and on occasions the physiotherapist treats her right shoulder as well.

Mr Kelman went on to conclude:
She [the applicant] made a satisfactory recovery with respect to her right shoulder and she is now returned to her pre-injury duties.
Added to this she is now complaining of pain in the left shoulder which has been treated with physiotherapy, but is not the subject of permanent impairment assessment.
Mr Kelman went on to assess the applicant’s right shoulder conditions as being permanent with a whole person impairment of 11% in respect of the right shoulder.
In a report dated 7 October 2009 the applicant’s GP, Dr Buras, set out a detailed history of the applicant’s presentation since 2004:
Mrs Betty Shields presented on 20 October 2004 with a 7- 8 day history of a persistently aching soreness of the left shoulder. She was unable to fully abduct the left shoulder. There was no history of trauma. She was working at ASIC performing data entry, keying, lifting, using then transferring files and using the telephone. On examination she had a painful reduced range of movement of the left shoulder. A diagnosis of a rotator cuff tear was made, so was referred for an ultrasound of the left shoulder.
The ultrasound was reported as showing moderate irregularity and prominence of the greater tuberosity of the humerus, a full thickness tear of the left supraspinatus tendon with impingement below the acromion.
Mrs Betty Shields was referred to Mr Peter Rehfisch, orthopaedic surgeon at 148, Princes Highway, Traralgon, Vic 3844. Mrs Betty Shields was treated conservatively and with modification of her duties at work. She lodged a Comcare claim which I understand was accepted. Despite modification of her duties Mrs Betty Shields continued with discomfort and a reduced range of movement of the left shoulder. She modified the way she was working so that on 17 August 2006 she presented with severe pain in the right shoulder. Mrs Betty Shields a torn right supraspinatus tendon, impingement and crepitus of the right acromioclavicular joint. She was referred to Mr Peter Rehfisch who treated her regarding the right shoulder. She required surgical intervention followed by rehabilitation supervised by Kwee Hunt and physiotherapist. Mrs Betty Shields initially had to cease work but a graduated return to work program was instituted allowing Mrs Betty Shields to return to work. Mrs Shields altered the way she worked favouring the right shoulder so using the left arm more and putting increased forces and stresses on the left arm and shoulder. Despite the graduated return Mrs Betty Shields was not able to return to the same speed and volume of work processed.
On 11 March 2009 Mrs Betty Shields presented for continued management of the right shoulder pain and her continued return to normal duties when Mrs Betty Shields stated that she was troubled by pain in the left shoulder. The pain was radiating to the left arm and left side chest. She noted clicking of the left shoulder. Moving the left shoulder painful and the left shoulder was stiff. She stated that at work she was moving files with her left arm. On examination she had a reduced range of movement of the left shoulder. She was referred for an ultrasound and an x-ray of the left shoulder.
Mrs Betty Shields was reviewed on 8 April 2009 when the x-ray report stated there was calcification and irregularity left greater tuberosity and the ultrasound showed a partial-thickness tear of the left supraspinatus tendon and tendinopathy of the left subscapularis tendon. She was advised to continue seeing Kwee Hunt the physiotherapist regarding the right shoulder and be treated for the left shoulder.
Mrs Betty Shields returned on 5 May 2009 with deterioration of the left shoulder and continued symptoms of the right shoulder. Mrs Betty Shields was advised continue conservative treatment with physiotherapy, mobilisation analgesia.
Mrs Betty Shields returned on 5 June 2009 with continued pain in the left shoulder she stated that if she had no physiotherapy the left shoulder pain was worse. She noted that using the left arm at work caused clicking of the left shoulder. On examination there was an 80% range of movement of the left shoulder. She stated that she due to see Mr Peter Rehfisch with respect to the left shoulder. She was advised to see Mr P Rehfisch and to continue seeing Kwee Hunt the physiotherapist.
Mrs Betty Shields returned on 10 July 2009 with continued symptoms of the left shoulder. She was advised conservative treatment, to see the orthopaedic surgeon and physiotherapy and continue with modified duties at work. Whenever seen with respect to the right and left shoulders since 11 March 2009 she was issued with WorkCover certificate.
Mrs Betty Shields was seen on 30 July 2009, 6 August 2009, 28 August 2009, 3 September 2009, 23 September 2009, when on each occasion she had persistent pain, reduced power, reduced range of movement of the left shoulder and diminished function of the letter shoulder and left arm. She was also supplied with a WorkCover and Comcare certificate of capacity.
In his report of October 2009, Dr Buras describes the applicant’s present symptoms with respect to her left shoulder as follows:
Mrs Betty Shields has calcification and sclerosis at the insertion of the left greater tuberosity, tendinopathy of the left subscapularis tendon, a partial-thickness tear of the left supraspinatus tendon and fluid around the long head of the biceps tendon.
Dr Buras concluded that in his view the applicant’s right and left shoulder conditions were attributable to her work at ASIC.
In a letter dated 12 February 2010, orthopaedic surgeon Mr Peter Rehfisch stated that the applicant requires surgery in respect of her left shoulder to repair tendons injured as a consequence of an accident sustained while working on 18 March 2009, although the letter also notes the “date of accident” as being 11 March 2009.
In a household help and garden maintenance assessment report dated 7 May 2010 occupational therapist/rehabilitation consultant Ms Cheryl Babar noted that the applicant was suffering from a “left rotator cuff tear, and impingement left shoulder” and side at the date of the injury as “11 March 2009”. Ms Barbar described current symptoms as follows:
Left arm – left neck and shoulder pain, pain radiating down the arm. Pins and needles in the arm. Restricted ROM, no above shoulder lift.
Right arm - shoulder discomfort at the end of some days. Reduced strength.
Ms Barbar concluded that the applicant is not to undertake the heavier domestic chores due to her current shoulder condition but noted that “this should gradually improve post surgery”. Ms Barbar recommended that the applicant be provided with some assistance with respect to her heavier domestic chores as a consequence of her condition.
In a report by dated 27 May 2010, orthopaedic surgeon Mr Peter Rehfisch provided details of the outcome of the left shoulder acromioplasty and rotator cuff repair. Mr Rehfisch noted that:
There was a 1.5 cm wide full thickness tear of the rotator cuff and after an acromioplasty have been performed to removed a small osteophyte on the undersurface of the acromion a rotator cuff repair with a single Mytec anchor and a 1 Ethebond suture was used to produce a firm and secure closure of the tendon tear.
Following the surgery on her left shoulder the applicant was recommended to undertake a program of physiotherapy together with a graduated return to work program. It was subsequently assessed by Dr Gras in July 2010, he recommended against an immediate return to work due to ongoing concerns with her left arm and hand and also poor uncorrected vision.
By letter dated 27 September 2010, ASIC OH&S consultant Mr Tony Mihelcic confirmed Dr Gras’ assessment noting that:
… although Dr Buras, Betty’s treating doctor, recommended that Betty was fit to participate in a return to work program from 5 July 2010, she was directed not to return to work based on a section 36 report received from Dr David Gras.
In a letter to the applicant dated 12 October 2010, Mr Mihelcic notes that the applicant was subsequently referred for reassessment in relation to her capacity to return to work as follows:
I refer to your appointment with Dr Gras on 8 July 2010 in my letter on 1 September 2010 summarising Dr Gras’ recommendation stating that you were fit to return to work on a graduated return to work program working 4 hours per day, 2 days per week, on the proviso that you had recovered from the left shoulder surgery and you had received appropriate glasses to allow you to read your computer screen.
Since that time Dr Buras recommended on 3 September 2010 that you are unfit for work until 31 January 2011. I also note that you were reviewed by Mr Rehfisch on 15 September and he recommended that you were fit to work 2 to 3 days per week, 4 to 6 hours per day with a 10 minute rest break every hour.
However you have indicated that you continue to have problems with your left shoulder and consequently it has remained off work.
As a result of the above I have arranged for you to be assessed by Dr David Gras in accordance with section 36 of the Safety, Rehabilitation and Compensation (SRC) Act 1988.
In his subsequent report dated 30 November 2010 Dr Gras notes as follows:
…As you would be aware, we have received a copy of the report from Mr Rehfisch, the date of his report being 30 September 2010. In that, he outlined a complicated history of problems initially affecting her right shoulder and subsequently her left shoulder. Ms Shields has made an excellent recovery in her right shoulder and has good strength in her right arm, good digital dexterity and a full range of right arm movements. Although the tear in her supraspinatus was of a similar size, she has not to this date improved quite as well or had quite the result that she had with her right shoulder. In the meantime she has also obtained new glasses and now is able to read newsprint and will be able to use these classes to read alphanumeric characters on a visual display screen.
I note that from Mr Rehfisch’s report that he was happy for her to probably return to work in October, perhaps two or three days per week for six hours per day with a 10 minute rest period every hour. Unfortunately Ms Shields had a flareup of symptoms and has required more close attention with her physiotherapist.
On this occasion Ms Shields provided me with a report from her physiotherapist, Mr Brendan McCarthy. He notes that she is actually improved. She has some limitations of movement of her left arm and for this problem, she is receiving appropriate attention and performing a range of exercises, three times a day. He thought that perhaps she could start a graduated return to work on modified duties, four hours per day, he thought four to five days per week, however this is probably a little bit much initially but, depending on progress, that she could probably progress to this over a period of four to six weeks.
In the meantime Ms Shields said that she continued to have pain in her right upper limb particularly when she was moving it or lifting anything with her left hand. She was able to move her left arm to 90° in the forward plan with forward flexion and to the side with abduction. However she said that the left shoulder was pain-free at rest. If she developed pain, this would tend to improve when she moved her hand down or stopped the task. The pain would go from 0 to 4-5/10 to be a maximum. When she developed pain like that she would take Panamax and rest.
She is right hand dominant. She is able to sleep okay and she is able to drive short periods at a time with driving up to 30 minutes a day. At home she does prepare small meals, generally noodles or rice porridge or other simple dishes. She said that she is able to lift the saucepan and kettle. She is not dropping utensils.
Dr Gras went on to state that:
I indicated [to the applicant’s GP] that I believed that she had actually improved to the point where she could now return to work and a good starting point would be three days per week, four hours per day.
… She may need a little bit of time for retraining and for working out what is a good output of level. She will probably need a rest break of either 10 minutes per hour or 5 minutes every half hour. I would believe that this would best be reviewed over a cycle of three to four weeks.
… Ms Shields has had an excellent result from surgical repair of significant tear in her right supraspinatus tendon in 2008 and now currently has a full range of movement.
In her left shoulder, she has had another tear which was repaired with surgery. She is now six months post surgery and is making slow recovery in terms of return of strength.
She has an excellent source of physical therapy management through her local physiotherapist and she requires further therapy in this regard to consolidate strength in her left arm and to improve her overall range of left shoulder movements.
In the left shoulder, she has restricted movements at 90° both in the forward and side plan and she has reduced power of strength grasping, holding and exerting force with her left hand.
… As noted earlier, she has had an excellent result with her right shoulder that her recovery has been delayed in the left shoulder. Nonetheless she is steadily improving.
Since my assessment in July this year, she has increased her hand grip strength and ability to grasp and hold. She has also now got good ocular correction of visual acuity and will be able to work out at a computer screen.
In her general work around the office, there will need to be some restriction on what she is holding. In particularly, given her limits on holding heavy objects, these would probably need to be limited to 3-4kg with both hands and 2kg in just her left hand only.
These would be subject to some improvements as her strength improves.
Subsequent to Dr Gras’ November report Mr Mihelcic again wrote to the applicant in a letter dated 7 December 2010, proposing a return to work program based on Dr Gras’ recommendation as well as Dr Buras’ medical certificate. The letter notes that Dr Buras has indicated that the applicant is fit to return to work on a graduated return to work program of four hours per day, three days per week, week commencing 27 December 2010. The letter notes that due to the Christmas break the proposed start date for the return to work program is 4 January 2011.
The applicant’s GP Dr Buras provided a further report in respect of the applicant’s condition dated 16 June 2011. In this further report Dr Buras states as follows:
..Mrs Betty Shields was seen on 21 January 2011, 18 February 2011, 18 March 2011, 28 March 2011, 7 April 2011, 15 April 2011, 3 May 2011 and 13 May 2011 when she was reviewed. She had continued working her normal duties with modified hours. She continued attending physiotherapy. Mrs Betty Shields continued with pain and a reduced range of movement and function of the left shoulder.
… The impingement of the right and left shoulder joints have been decompressed with surgery and the rotator cuff tears have had surgery to attempt repair.
Mrs Betty Shields continues with soreness and a reduced range of movement of both shoulder joints in all directions and reduced power, strength and function of both shoulders and upper limbs as assessed clinically. She has post operative scars over both shoulders.
Mrs Betty Shields will continue with discomfort, reduced strength, power, range of movement and stamina of both shoulders and upper limbs indefinitely. It is likely that the pain in both shoulders will increase with activity.
I have found no evidence to suggest that Mrs Betty Shields is voluntarily exaggerating her symptoms, consciously guarding restriction of movement, displaying symptoms and examination findings inconsistent with her claim conditions or demonstrating a range of movement during passive observation that were not replicated during clinical examination.
I believe that Mrs Betty Shields conditions are related to her employment as a general clerk. I am not aware of factors unrelated to work or as a pre—existing, congenital, constitutional or underlying condition that would have caused or aggravated her injuries caused by her employment. I am not aware of any natural progression of an underlying condition, underlying degeneration as part of the natural ageing process or other health issues that are related to her work related injuries .
I believe Mrs Betty Shields condition is a result of her work.
I believe that the medical treatments provided to Mrs Betty Shields were appropriate and reasonable.
I believe that Mrs Betty Shields is likely to require physiotherapy, home help and help with the gardening indefinitely.
Physiotherapy will help with pain control and help maintain and improve her range of movement, strength and function of both shoulders and shoulder girdles. The home help will avoid aggravation and deterioration of her injuries and surgical repairs.
Mrs Betty Shields has returned to work performing normal duties with reduced hours. The number of hours worked is to be increased as her physical condition allows. The aim of her rehabilitation is to return Mrs Betty Shields to perform her normal duties full-time. The return to normal hours worked is been determined by her response to the increasing.
Consultant orthopaedic surgeon Mr Kelman prepared a further report dated 24 August 2011. In this further report Mr Kelman described the applicant’s symptoms as follows:
·She [the applicant] complains of burning of the scapula of the right shoulder.
·She has occasional pain radiating over the left scapula.
·She has occasional pain radiating over the left deltoid.
·There are occasional clicks in her left shoulder.
·She has pain on the left side of her neck.
·There is no paraesthesia in her hands and her dexterity is not compromised.
·She is able to reach above shoulder level with both arms.
·She occasionally has night pain on the left side which wakes her from her sleep.
Mr Kelman describes the applicant’s daily activities at the time as follows:
She is able to carry out the personal activities of daily living without assistance. She is able to drive her car. She receives help from Comcare with respect to household chores. Home gardening is also funded through Comcare. She prepares her own meals but often is given food by friends and neighbours and more often will eat in a restaurant. She is able to carry out her own laundry.
She carries out a home exercise program stretches which she does each day and she walked for 20 minutes each day.
She is taking the following medication:
·Pananmax one tablet per week.
·She uses and anti-inflammatory gel -Flexall on a daily basis applied mainly to the left shoulder.
·She takes Colgout for acute attacks of gout.
She is not having any supervised physical treatment at the present time.
On the basis of his physical examination of the applicant Mr Kelman assessed the applicant as having a whole person impairment in respect of her right shoulder condition of 2% and in respect of her left shoulder condition 3%. Mr Kelman also stated that in his view he did not consider that either condition will improve or deteriorate in the future.
There was evidence before the Tribunal that through 2012 and 2013 the applicant continued to experience ongoing difficulties with her left shoulder. The applicant was again referred to Mr Peter Rehfisch for assessment. In a report dated 20 November 2013, Mr Rehfisch describes the applicant’s ongoing symptoms as follows:
This lady is still having minor trouble with her left shoulder. She had some aching and soreness in the muscles around it and notices clicks and cracks when she moves it. She sees the physios once a week and that helps to relieve her symptoms a good deal and I think that it is a good idea for this to continue while it is keeping her symptoms under good control. The symptoms are not bad enough to require surgery at present, but I’m happy to see her again if the problem is not controlled satisfactorily physio.

After continuing to suffer ongoing issues the applicant was referred for a further ultrasound and x-ray of her left shoulder on 13 March 2015. In a report from radiologist Dr A Tripathi dated 25 March 2015 the following observations were made:
CLINICAL NOTES:
Painful left shoulder, mildly reduced range, previous surgery? Rotator cuff tear.
X-ray LEFT SHOULDER:
Supraspinatus humorous head tendon anchor is intact.
Sclerosis and irregularity of posterolateral humorous head indicative of chronic rotator cuff changes.
No clinically significant osteoarthritis of the shoulder, and no focal lesion or subacromial spurring detected.
ULTRASOUND LEFT SHOULDER:
Long head of biceps tendon was intact.
Thin and heterogenerous appearance of the supraspinatus tendon may indicate chronic tearing or post surgical changes.
There appears to be a full thickness tear of the posterolateral fibres of the supraspinatus.
Bony irregularity of the humorous head was present in this region as seen on x-ray.
The infraspinatus was thinned also.
No discrete tear was observed of the subscapularis or the infraspinatus.
A small shoulder joint effusion was noted.
AC joint was degenerate.
No subacromial bursitis or bursal fusion was identified and no bursa or tendon impingement was identified.
CONCLUSION:
Chronic appearing changes of the supraspinatus, with a full thickness tear involving the posterolateral fibres.
Chronic pinning infraspinatus.
Small shoulder effusion.
No clinically significant osteoarthritis to the AC or glenohumeral joint.
The applicant’s claim for permanent impairment and noneconomic loss in respect of her left shoulder condition dated 28 January 2016 included a diagnosis from the applicant’s GP Dr Buras. In Dr Bursa’s statement included as part of the application Dr Bursa describes the applicant’s ongoing symptoms as follows:
Left shoulder joint has persistent stiffness-(reduced range of movement), reduced function and persistent pain.
.. I believe that the impairments have stabilised but with time may still deteriorate.
… Has persistent pain (present all the time) and persistent stiffness (present all the time) Abduction left shoulder 60° (2/3 range movement). Left shoulder flexion and extension 60% (sixty percent). Internal and external rotation 5° each (10%).
…. The left shoulder pain is persistent all the time. Movement and use of the left shoulder aggravates left shoulder pain so activities using the left arm are avoided. Left shoulder pain disturbs sleep. Pain uncontrolled by medication so medications avoided as no benefit achieved.
.. Persistent pain interrupts all activities and she conscious of the pain all the time. Pain interferes with activities that she becomes upset emotionally as unable to perform or finish tasks. Continues tasks and exercise to try and distract herself and avoid mental distress.
… Mobility and function left shoulder greatly reduced so needs to ensure home help to help with house work, gardening and cutting grass. Travel in car greatly restricted-and avoids travelling further then 10 - 15 km from home.
… Pain interfering with concentration and maintaining relationships with close friends.
… Greatly reduced function and range of movement of the left shoulder compared to pre-injury levels. Previously enjoyed gardening - no needs to employ a garden to maintain the garden and cut the grass.
… When the weather has cool change and temperature drops Mrs Betty Shields notices her left shoulder pain more and the range of movement of the left shoulder is reduced.
… As time progresses there is likely to be a decrease in range of movement and function of the left shoulder and an increase in pain.
The applicant was once again referred to consultant Orthopaedic Surgeon Mr Iain Kelman for a further assessment of her left shoulder condition. In his subsequent report dated 28 April 2016 Mr Kelman describes the applicant’s left shoulder symptoms at the time of assessment as follows:
Left Shoulder:
·Difficult to move the arm outwards.
·She experiences muscle pain over the deltoid region.
·She has radicular pain to the right axilla.
·She has radicular pain to the right side of her neck.
·She requires home help to clean once or twice a month.
·She requires a gardener once a month.
·She complains of night pain.
She stated that with respect to the personal cares of daily activity she has a friend assist her with washing every second day. She has a housecleaner once a month. Although she still drives a car she does not do so for more than 2 km from her home.
She is not participating in any physical activity apart from walking her three dogs twice a week no further than one block from her home.
Mr Kelman goes on to note:
The left shoulder now still has considerable restriction in range of movement and a permanent impairment has been requested to both shoulders.
Mr Kelman assessed the applicant’s right and left shoulder conditions applying the Approved Guide. Mr Kelman assessed the applicant’s whole of person impairment in respect of the applicant’s right shoulder condition as 0%. Mr Kelman assessed the applicant’s whole person impairment in respect of her left shoulder condition as 9%.
Mr Kelman went on to conclude:
… It is my opinion that the condition of the left shoulder has come about as a result of degenerative disease which is related to ageing. I do not consider that the work she carried out with her left upper limb during work related to the condition which has developed. She claimed she has used her left upper limb excessively but I do not consider that this in itself would have resulted in a condition which she developed. It is my opinion that the condition is as a result of degenerative disease of the rotator cuff. If there was some contribution to the impairment in her left shoulder as a result of the work etc. would be no more than 5%.
The applicant was subsequently referred to consultant rheumatologist Dr Loretta Reiter. Dr Reiter assessed the applicant on 12 October 2017 and prepared a report dated 24 October 2017.
In her report Dr Reiter describes the applicant’s ongoing symptoms in connection with her right shoulder condition as follows:
Ms Shields has a dull ache whilst in the consultation affecting her right shoulder radiating to the need upper arm that she rates as 2/10, where 10 is the worst imaginable pain and 0 is no pain, with it increasing to 4/10 with lifting her arm above shoulder height.
Dr Reiter describes the applicant’s ongoing symptoms in connection with her left shoulder condition as follows:
Ms Shields has pain in the area of her acromioclavicular joint, left shoulder and left suprascapular area with her rating it as 4/10 whilst sitting in the consultation and, increasing to 7/10 with lifting her left arm above shoulder height.
Dr Reiter describes the impact of the applicant’s conditions on daily activities as follows:
She can wash and dress herself, but she mostly wears loose clothing as she finds this much easier to put on. Her friends cook up a lot of meals and provide her with meals to freeze that she can reheat or she will go to their place for dinner, so cooking is not an issue. She does shopping in small amounts and, the cleaning and gardening are outsourced, provided by Comcare. She lives with her three small dogs. She can drive, but only for about ten minutes and mostly she rests her left hand in her lap whilst driving. She has not been able to play Mahjong, as she finds putting her hands out in front of her to do “twittering of the birds” causes her shoulder pain.
Dr Reiter described her assessment of the applicant based on a physical examination as follows:
Right Shoulder:
She had tenderness generally of her right shoulder joint along the anterior joint margin, her acromioclvicular joint area and subacromial bursal space area. Her range of motion of the right shoulder was:
Abduction 120°; adduction 30°; external rotation 90°; internal rotation 60°; forward flexion 130°; and extension 30°.
Left Shoulder:
Examination of the left shoulder revealed generalised tenderness of acromioclavicular joint, her anterior shoulder joint margin and subacromial bursal space. Her range of motion of her left shoulder was:
Adduction 90°; adduction 20°; external rotation 80°; internal rotation 50°; forward flexion 90°; and extension 30°.
Dr Reiter concludes that the applicant has:
… had a good outcome with her right shoulder with a much better range of motion and far less pain. However, she has not had a good outcome on the left with ongoing pain and a reduced range of motion.
Dr Reiter accepts that the applicant’s left shoulder condition is as a consequence of her previous employment with ASIC. Dr Reiter does however express an opinion that the applicant is likely to have also been suffering from a pre-existing degenerative rotator cuff disease on the basis of her age. Dr Reiter describes the applicant’s ongoing acceptance as being the consequence of:
..her underlying degenerative rotator cuff disease compounded by the aggravation that she had when she suffered tears of her supraspinatus tendons with certain, sudden movements whilst at work. She has ongoing symptoms on the left as she has failed surgery on the left, with only mild symptoms on the right and therefore partially successful surgery on the right.
Dr Reiter concludes that the applicant has a reduced function of her left shoulder and that the impairment is likely to continue indefinitely.
Based on Dr Reiter’s assessment of the applicant’s permanent impairment as a consequence of her right and left shoulder conditions applying the Approved Guide Dr Reiter assesses the applicant’s whole person impairment as a consequence of the right shoulder condition at 7% and the applicant’s whole person impairment as a consequence of the applicant’s left shoulder condition as 9%.
Dr Reiter concludes that 75% of the applicant’s whole person impairment is attributable to her employment with ASIC and 25% to age-related degenerative disease.
The Tribunal understands the applicant’s submissions to be that in making her further claim for permanent impairment and non-economic loss she relies on the assessment of her long standing GP Dr Buras which was provided as part of her compensation claim form dated 4 February 2016; 3 medical certificates for compensation based on examinations undertaken on 21 December 2017, 23 January 2018 and 22 March 2018; and 2 photos of her left shoulder describing the location of pain points which had been forwarded to the Tribunal under letter dated 7 January 2019.
The applicant gave evidence that her left shoulder condition was a result of an incident that occurred at work. In a written statement to the Tribunal dated 7 January 2019, the applicant stated that the incident had occurred while she was “busy and deeply concentrating” with processing documents and a filing tray fell and she had “automatically bent to catch it” and had felt and heard a painful tick. The applicant’s evidence was that the incident giving rise to her left shoulder condition occurred on 11 March 2009, although there was some inconsistency in the applicant’s broader documentary evidence before the Tribunal which in some instances referred to the date of injury being in 2008 not 2009.
The applicant’s evidence to the Tribunal was that following surgery her right shoulder condition had improved significantly and that her range of motion in her right shoulder had also significantly improved. The applicant told the Tribunal that following her surgery on her right shoulder she had subsequently returned to work, ultimately on full time duties. Her evidence was that, in undertaking her work duties, despite the improvement in her right shoulder she had tended to use her left arm in preference to her right shoulder. The applicant’s evidence was that following the injurious event involving her left shoulder the applicant had suffered significant ongoing pain which ultimately led to the referral to Mr Rehfisch who had recommended her for surgery on her left arm. The applicant undertook the recommended surgery on her left shoulder however despite having done so she continues to experience ongoing swelling and pain in her left shoulder. The applicant told the Tribunal that she is no longer able to carry heavy loads using her left shoulder.
In her direct evidence to the Tribunal the applicant agreed that she had previously made a claim for permanent impairment and non-economic loss in respect of her left shoulder condition in 2011 which had been rejected by the respondent. The applicant conceded in her evidence that she had not sought to challenge the respondent’s rejection of her claim at that time. The applicant subsequently made a fresh claim for permanent impairment and non-economic loss in respect of her left shoulder condition in 2016 and that it was the refusal of that claim which is the subject of the present review.
The applicant told the Tribunal that her left shoulder continues to be “a problem” and is “very painful”. The applicant’s evidence was that her left shoulder pain sometimes involves a sudden sharp chronic pain followed by continuing dull pains. The applicant described her pain as being particularly severe in very cold or very hot weather. The applicant described the condition as being particularly painful during winter. She told the Tribunal that the condition continued to restrict her movements and that as a consequence she was not able to drive her car very far.
The applicant described the need for ongoing management of her left shoulder condition in order to manage pain including the use of Deep Heat as well as the use of what the applicant described as a “Pain Erazor” which she purchased after seeing an advertisement on TV. There was also evidence before the Tribunal of the applicant using Voltaren and Rapigel cream for pain management as well as ongoing physiotherapy in order to maintain mobility in her left shoulder.
In her direct evidence the applicant stated that she had returned to work following her left shoulder surgery and had ultimately resumed similar data processing duties to those she had undertaken previously. In her written submissions the applicant stated that she had returned to work following her left shoulder surgery despite the ongoing pain she was experiencing in order to avoid being “bored at home” but had only done so with the intention of limiting her work activities to “light movements” and after having first consulted her GP Dr Buras.
The essence of the applicant’s submission was that based on Dr Buras’ assessment of the ongoing impact of her condition she was permanently impaired as a result of her left shoulder condition with a whole of person impairment that met the criteria for compensation under sections 24 and 27 of the SRC Act. The applicant acknowledged that she had been examined by Mr Kelman and Dr Reiter for the purpose of their 2016 and 2017 reports but made clear to the Tribunal that she was relying on the conclusions of Dr Buras in preference to those assessments.
The respondent concedes that the applicant’s left shoulder injury is a compensable injury on the basis that it is a sequalae of the applicant’s previously accepted right shoulder injury which arose as a consequence of the applicant having overcompensated in the use of her left shoulder. The respondent does not concede that the applicant’s left shoulder injury is permanent. However, in any case, the respondent contends that the applicant is not entitled to compensation under sections 24 and 27 of the SRC Act on the basis that the applicant’s whole of person impairment does not satisfy the eligibility criteria in section 24(7) of the SRC Act. The respondent relies in particular on the independent medial assessments of Mr Kelman and Dr Reiter. The respondent contends that those assessment should be preferred over the assessment of Dr Buras.
The difficulty that the Tribunal has with the applicant’s reliance on Dr Buras’ assessment is that while the 3 medical certificates for compensation together with his statements included in the permanent impairment claim form dated 4 February 2016, evidence ongoing reduced range of movement as a consequence of the left shoulder condition it is certainly not clear to the Tribunal that Dr Buras’ assessment of the applicant’s range of movement in respect of her left shoulder has been undertaken in a manner that is consistent with the Approved Guide. Nor, in the view of the Tribunal, do those assessments provide a clear opinion as to the whole of person impairment resulting from the condition. This is in direct contrast to the assessments of impairment undertaken by both Mr Kelman and also Dr Reiter.
Section 24 of the SRC Act provides for the determination of the degree of permanent impairment of the employee resulting from an injury expressed as a percentage of whole of person impairment to be assessed consistent with the provisions of the Approved Guide.
Where the degree of impairment is assessed as being less than 10% of whole of person impairment then section 24(7)(b) of the SRC Act provides that compensation is not payable to the employee under section 24 of the SRC Act. It flows that where compensation is not payable under section 24 of the SRC Act then no amount of non-economic loss compensation is payable under section 27 of the SRC Act. There are some limited exceptions to these provisions but they are not relevant in the applicant’s case.
In assessing the percentage of whole of person impairment in accordance with the Approved Guide it is necessary to apply the Impairment Tables set out in the Approved Guide. Where two or more injuries give rise to a different whole of person impairment the scores are to be added together. However, it is accepted law that where there several injuries, each with less than 10% impairment, the impairments cannot be combined to meet the 10% qualification threshold in section 24(7) of the SRC Act.[3]
[3] See Canute v Comcare (2006) HCA 47; (2006) 91 ALD 552; Black and Comcare [2009] AATA 593 and Dawson and Comcare [2013] AATA 836; (2013) 138 ALD 430.
The medical certificates for compensation relied on by the applicant each described the applicant’s symptoms in connection with her left shoulder as:
Reduced range of movement of left shoulder. Pain left shoulder and left shoulder girdle. Pain upset by movement.
While the medical certificates support ongoing symptomology as a consequence of the applicant’s left shoulder condition including any impact on the range of movement she has in her left shoulder, they do not involve any detailed assessment of the whole of person impairment to the applicant consistent with the Approved Guide.
Similarly, Dr Buras’ assessment of the applicants left shoulder condition as set out in her compensation claim form dated 4 February 2016, while also confirming the applicant’s ongoing restricted movement as a consequence of her left shoulder condition it does not include a breakdown of percentage impairment ratings against Impairment Tables set out in the Approved Guide. In addition, the Tribunal accepts the respondent’s contention that it is unclear from Dr Buras’ descriptions of the applicant’s impairment whether the findings relate to a loss of movement or residual retained movement.
For these reasons the Tribunal accepts the respondent’s contention that it is not appropriate to rely on the assessments made by Dr Buras as a basis for concluding that the applicant is suffering from a whole person impairment of equal to or greater than 10% in respect of her left shoulder condition. Even if Dr Buras’ statements were to be read as supporting the applicant’s claim that she meets the eligibility criteria in section 24(7) of the SRC Act, the Tribunal in any case prefers the assessments of Mr Kelman and Dr Reiter on the basis of their more detailed assessment against the Impairment Tables set out in the Approved Guide, their more specialist expertise and also the fact that both Mr Kelman and Dr Reiter reach very similar conclusions on the threshold question of whole of person impairment.

The Tribunal is satisfied that both Mr Kelman and Dr Reiter undertook assessments of the applicant’s range of movement as a consequence of her left shoulder condition in accordance with the relevant Impairment Tables in the Approved Guide. Both Mr Kelman and Dr Reiter assessments support a conclusion that the applicant’s left shoulder condition results in a whole person impairment of less than 10%.
While Dr Reiter also concluded that the applicant had suffered a 7% whole person impairment as a consequence of her right shoulder condition the Tribunal accepts the respondent’s contention that applying the principles set out in the High Court case of Canute it is not appropriate to combine the assessments in the manner in which Dr Reiter did and that having regard to this consideration and Dr Reiter’s conclusion that the applicant’s impairment is 75% attributable to employment, Dr Reiter’s assessment supports a conclusion that the applicant does not have a whole person impairment as a consequence of the left shoulder condition that is equal to or greater than 10%.
For these reasons, the Tribunal is satisfied that the applicant’s whole person impairment as a consequence of her left shoulder condition is less than 10% and therefore does not satisfy the criteria for eligibility for compensation set out in section 24(7) of the SRC Act. It flows from this that the applicant is not entitled to compensation for permanent impairment or non-economic loss under sections 24 or 27 of the SRC Act in connection with her left shoulder condition.
Decision
The decision under review is affirmed.

I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

................................[sgd]........................................
Associate
Dated: 2 June 2021

Date of hearing: 13 December 2018

Date final submissions received: 25 January 2019

Applicant: In person

Counsel for the Respondent: F. Blair

[2021] AATA 1868

2 June 2021

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Remedies

Statutory Construction

Date of hearing:	13 December 2018
Date final submissions received:	25 January 2019
Applicant:	In person
Counsel for the Respondent:	F. Blair