Singleton and Comcare (Compensation) - [2018] AATA 4088

Singleton and Comcare (Compensation) [2018] AATA 4088 (1 November 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3655
Re:Benjamin Singleton
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:1 November 2018
Place:Canberra

The Tribunal affirms the reviewable decision dated 8 June 2017.
........................................................................
Senior Member Linda Kirk
Catchwords
COMPENSATION – whether the Applicant suffers from Chronic Pain Syndrome (CPS) – whether the Applicant suffers a permanent impairment resulting from CPS – the acceptance of an ‘injury’, as defined in ss 5A and 5B of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), both precedes and defines the ambit of Comcare’s duty to consider compensation for injuries resulting in permanent impairment under s 24 of the SRC Act – on the basis of the medical evidence, the Applicant’s CPS is not determined to be an ‘injury’ for the purposes of the SRC Act – reviewable decision affirmed.
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5, 14, 24, 27, 28
Cases
Canute v Comcare (2006) 226 CLR 535
Comcare v Broadhurst [2011] FCAFC 39
Comcare v Canute [2005] FCAFC 262
Comcare v Farrell [2016] FCAFC 115
Telstra Corporation v Hannaford (2006) 151 FCR 253
Whittaker v Comcare (1998) 86 FCR 532
Secondary Materials
Guide to the Assessment of the Degree of Permanent Impairment (Edition 2.1)
REASONS FOR DECISION
Senior Member Linda Kirk
1 November 2018
BACKGROUND AND CLAIM

Mr Benjamin Singleton (‘the Applicant’) was born in April 1972.[1] He served in the Australian Army between 7 June 1989 and 11 July 1993. He submitted a claim for workers’ compensation to the Military Compensation and Rehabilitation Service (MCRS) on 13 July 1992.[2] The claim concerned a ‘left-hand shoulder AC joint’ injury suffered on 2 December 1991. The MCRS accepted liability for ‘left acromio-clavicular joint strain’ on 13 January 1993. The Applicant was discharged from the army on medical grounds (relating to his left shoulder injury) on 6 July 1993.[3]
[1] Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 12 April 2018 at paragraph 1.
[2] T Documents, T3.
[3] Respondent’s SFIC dated 10 May 2018 paragraphs 4-6.
The Applicant submitted an application for an increase in disability pension with the Department of Veterans’ Affairs (DVA) on 24 June 1996.[4] He claimed that his left shoulder had worsened so that he could not move his arm most of the time or carry anything in his left hand. He claimed that he could not find permanent employment as anything that he was qualified to do he could not do ‘due to [his left] shoulder’.[5] The MCRS accepted liability for an interim payment of compensation for permanent impairment in relation to the Applicant’s left shoulder on 28 January 1998.[6] A final assessment of 10 per cent was made on 17 February 1998.[7]
[4] T Documents, T16; Respondent’s SFIC paragraph 7.
[5] Respondent’s SFIC paragraph 7.
[6] T Documents, T35; Respondent’s SFIC paragraph 8.
[7] T Documents, T36; Respondent’s SFIC paragraph 8.
The Applicant commenced employment with the Australian Federal Police (AFP) on 10 March 2003.[8] The Applicant submitted an application for a disability pension on 27 August 2010.[9] The Applicant claimed that if he ‘needed to carry heavy items [he had] to rely on the strength in [his] right arm and [had] over time experienced pain in [his] right shoulder, neck and back, which [he] put down to [his] inability to maintain a correct posture all the time’. DVA accepted his claim for ‘osteoarthritis of the left shoulder’ on 23 September 2010, and the Applicant then was in receipt of a 100 per cent incapacity-rating disability pension and a DVA Gold Card.[10] The Applicant underwent a rotator cuff repair on 11 February 2011[11] and then a total left shoulder replacement on 12 April 2011.[12]
[8] Respondent’s SFIC paragraph 9.
[9] T Documents, T100; Respondent’s SFIC paragraph 10.
[10] T Documents, T104; Respondent’s SFIC paragraph 10.
[11] T Documents, T110; Respondent’s SFIC paragraph 11.
[12] T Documents, T120; Respondent’s SFIC paragraph 11.
The Applicant submitted an AFP incident report on 16 September 2013.[13] The report recorded that the Applicant injured his right shoulder when he slipped in the rain and ‘fell backwards heavily onto his back causing instant pain to his upper back, both shoulders (particularly his right shoulder) and his neck’ (‘the Claimed Injury’).[14]
[13] T Documents, T139.
[14] T Documents, T139; Respondent’s SFIC at paragraph 12.
The Applicant submitted a claim for compensation to Comcare (‘the Respondent’) on 10 October 2013 for a ‘right shoulder impact injury’.[15] The Applicant also noted having injured his neck and upper back as well, and, when asked if he had ever had a similar symptom, injury or illness, work-related or otherwise, answered ‘no’.[16]
[15] T Documents, T141.
[16] T Documents, T141; Respondent’s SFIC at paragraph 13
The Respondent accepted liability for ‘unspecified injury to shoulder upper arm (right)’ on 30 October 2013.[17]
[17] T Documents, T146; Respondent’s SFIC at paragraph 14.
The Applicant underwent a right shoulder arthroscopy and acromioplasty, and subacromial decompression with distal clavicle excision on the right shoulder on 25 February 2014.[18]
[18] T Documents, T159.
The Applicant submitted a claim for the disability pension (seeking the total permanent injury payment rate) on 18 September 2014 in relation to chronic pain and complex regional pain syndrome of the left shoulder.[19] The Applicant stated that the complex regional pain syndrome developed due to the deterioration of his left shoulder after eight surgeries, and that he was dependent on a large amount of pain medication which was a ‘direct follow on from [his] service related injuries which have become worse with age’. The Applicant described his symptoms as ‘increased pain, increased reliance on medication (pain killers), loss of balance, unable to conduct activities for long periods, loss of concentration, break into sweats, during periods of pain inability to sleep well...’ The Applicant also stated that ‘I have not worked since Sept 2013. Have injured other shoulder due to overuse and from a fall’.[20]
[19] T Documents, T183; Respondent’s SFIC at paragraph 15.
[20] T Documents, T183 at page 445.
The Applicant ceased employment with the AFP on 23 April 2015.[21]
[21] T Documents, T212; Respondent’s SFIC at paragraph 16.
The Applicant submitted a claim for permanent impairment and non-economic loss to the Respondent on 30 July 2015 in respect of his right shoulder.[22] The Applicant described his impairment as ‘chronic regional pain and limitation of movements of the affected shoulder’ (‘CRPS’).[23]
[22] T Documents, T219.
[23] T Documents, T219; Respondent’s SFIC at paragraph 17.
On 18 October 2015, Ms Crocker, Occupational Therapist, reported that the Applicant was unable to bear weight or perform repetitive movements with the right hand above shoulder height.[24]
[24] T Documents, T226; Applicant’s SFIC at paragraph 6.
On 28 October 2015, Dr Paul, Occupational Physician, opined that the Applicant did not suffer CRPS in accordance with the criteria in 9.13.3 of the Guide to the Assessment of the Degree of Permanent Impairment (‘the Guide’).[25] Dr Paul noted a history of intermittent right shoulder pain before the fall of September 2013 and diagnosed a degenerative condition in the right shoulder causing Chronic Pain Syndrome (‘CPS’). He noted that this condition may have been present before the fall but was aggravated by the fall. The condition had not stabilised and there was further treatment that the Applicant may undergo and it presently rated only 9 per cent on Table 9.11.[26]
[25] T Documents, T227; Applicant’s SFIC at paragraph 6
[26] T Documents, T227; Applicant’s SFIC at paragraph 7.
The Respondent declined liability for permanent impairment for ‘unspecified injury to shoulder upper arm (right)’ in a determination dated 5 November 2015.[27] The Delegate considered that the Applicant’s condition had not stabilised and may improve, and that active treatment had not been completed.[28] The Applicant sought a review of this decision.[29]
[27] T Documents, T228.
[28] Applicant’s SFIC at paragraph 8.
[29] T Documents, T229.
On 16 January 2016, Dr Herald, Orthopedic Surgeon, reported CPS in both shoulders and assessed 13 per cent on Table 9.11.[30]
[30] T Documents, T241.
The Respondent affirmed the determination of 5 November 2015 on 18 March 2016.[31] On 26 March 2016 the Applicant sought review by the Tribunal of the determination.[32]
[31] T Documents, T243.
[32] T Documents, T244.
The Applicant submitted a new claim for workers’ compensation on 22 August 2016[33] for ‘complex regional pain syndrome – right shoulder, right and left knee’, attributed to the same 16 September 2013 incident that had caused the accepted right shoulder injury.
[33] T Documents, T246.
On 25 October 2016, Professor Neil McGill, Rheumatologist, opined that the Applicant did suffer a pain syndrome in the right shoulder, but found it was not CRPS in accordance with the criteria in 9.13.3 of the Guide. He assessed 10% under Table 9.11.[34]
[34] T Documents, T248; Applicant’s SFIC at paragraph 13.
The Respondent accepted liability to pay compensation in relation to ‘chronic pain syndrome’ on 8 November 2016.[35]
[35] T Documents, T249.
On 21 November 2016, Dr Garth Eaton, Occupational Physician, diagnosed CRPS notwithstanding that all the symptoms referred to in 9.13.3 had not manifested at the same time. He assessed 20 per cent permanent impairment under Table 9D [sic Table 9F] of the Guide.[36]
[36] T Documents, T251; Applicant’s SFIC at paragraph 15.
The Applicant submitted a claim for permanent impairment in respect of ‘chronic regional pain syndrome’ on 5 December 2016.[37]
[37] T Documents, T252.
By consent agreement between the parties on 23 January 2017, the Tribunal made orders pursuant to s 42C of the Administrative Appeals Act 1975 (Cth) that the Respondent was liable to pay compensation for 10 per cent whole person impairment (WPI) in respect of an ‘unspecified injury to shoulder and arm (right)’ under Table 9.11.[38]
[38] T Documents, T253.
On 27 April 2017, Dr David Gorman, Pain Management, diagnosed, inter alia, a chronic right shoulder impingement syndrome but not CPS. He assessed 12 per cent permanent impairment under Table 9.11 of the Guide. He did not diagnose CRPS in accordance with Table 13.3.3.[39]
[39] T Documents, T255; Applicant’s SFIC at paragraph 17.
In a determination dated 9 May 2017, the Respondent declined liability to pay compensation for permanent impairment and non-economic loss in respect of ‘chronic regional pain syndrome’.[40]
[40] T Documents, T256.
On 10 May 2017, the Applicant sought reconsideration of the determination dated 9 May 2017[41] on the basis that Table 9.11 pertained only to the rotation of the shoulder whereas the CPS is a separate injury and affected the use of the arm as a whole.[42]
[41] T Documents, T257.
[42] T Documents, T257; Applicant’s SFIC at paragraph 20.
On 8 June 2017, a review officer affirmed the determination dated 9 May 2017 denying the claims for permanent impairment resulting from CPS (‘the Reviewable Decision’).[43] The decision noted that liability had been accepted for CPS but distinguished this from CRPS in Table 9 13.3. The officer found that CRPS did not exist and accordingly no permanent impairment could be assessed. The decision recorded that the CPS (as opposed to CRPS) was adequately compensated by the assessment of the shoulder at 10 per cent under Table 9.11.[44]
[43] T Documents, T258.
[44] T Documents, T258 at page 779; Applicant’s SFIC at paragraph 21.
On 22 June 2017, the Applicant lodged an application with the Tribunal for review of the Reviewable Decision.[45]
[45] T Documents, T1.
The matter was heard in Canberra on 13 and 14 August 2018. The Applicant appeared in person and gave evidence and was represented by counsel.
The following witnesses gave oral evidence at the hearing:
(1)the Applicant;
(2)Associate Professor Neil McGill, Rheumatologist
(3)Dr Garth Eaton, Occupational Physician
(4)Dr David Gorman, Consultant General Physician, Pain Management Specialist and Medical Oncologist
The following documents were before the Tribunal:
(1)Statement of the Applicant dated 9 August 2018 (Exhibit A1);
(2)Second supplementary report of Dr Garth Eaton dated 26 December 2017 with briefing email (Exhibit A2);
(3)First supplementary report of Dr Garth Eaton dated 21 November 2017 with briefing letter (Exhibit A3);
(4)Respondent’s s 37 documents (T1-T259, pages 1-825);
(5)Applicant’s SFIC dated 12 April 2018;
(6)Respondent’s SFIC dated 10 May 2018;
(7)Applicant’s Opening dated 12 August 2018;
(8)Applicant’s Submissions dated 25 September 2018;
(9)Respondent’s Submissions dated 3 September 2018;
(10)Respondent’s Submissions in Reply dated 27 September 2018.
LEGISLATIVE FRAMEWORK
Compensation for injuries, permanent impairment and non-economic loss
Sections 14, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (‘SRC Act’) provide for the payment by Comcare of compensation in relation to injuries, permanent impairment and non-economic loss:
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.
…
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.
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.
Section 28 makes provision for the ‘Approved Guide’ (‘the Guide’):
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.
(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.
…
Statutory Definitions
‘Injury’ is defined in s 5A of the SRC Act:
(1) …
(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.”
A ‘disease’ is defined in s 5B of the SRC Act to mean:
(1) …
(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.”
The following relevant definitions appear in s 4(1) of the SRC Act:
"ailment" means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
"approved Guide" means:
a) the document, prepared by Comcare in accordance with section 28 under the title "Guide to the Assessment of the Degree of Permanent Impairment", that has been approved by the Minister and is for the time being in force; and
…
"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.
ISSUES FOR DETERMINATION

The issues for determination by the Tribunal are whether the Applicant is entitled to compensation for permanent impairment and non-economic loss under ss 24 and 27 of the SRC Act and specifically:
(1)Did the Applicant sustain an injury recognised as CPSand if so;
(2)Does the Applicant suffer a permanent impairment resulting from the CPS injury and if so;
(3)What is the degree of permanent impairment to be assessed in accordance with the Guide;
EVIDENCE BEFORE THE TRIBUNAL
Applicant’s Evidence
The Applicant tendered in evidence his signed witness statement dated 9 August 2018[46] and confirmed that its contents are true.
[46] Exhibit A1
In his statement the Applicant described the circumstances surrounding the injury he sustained to his right shoulder:
2. Was out in the field training Police for overseas deployment. Located at Blue Range Hut, Uriarra Forest ACT. It was late, dark and raining. We were planning within the hut when I went to my swag to collect some material and as I was returning to the hut I slipped on the wet ground. As I fell, I twisted to the right to avoid falling onto my left shoulder which had been replaced previously. I landed heavily onto my right shoulder causing instant pain.
He further outlined the treatment he received following the injury to his shoulder:
3. After seeing a specialist, I had surgery on my right shoulder. The surgeon was concerned that I may develop a pain syndrome, so a plan was developed to manage this. A nerve block was used during the surgery and then afterwards a ketamine drip was placed within the right shoulder. Later that day a nurse accidently removed the drip. As I would have to be returned to surgery to replace the block, it was decided it would be best just to leave the block out. This was the beginning of the chronic pain condition in my right shoulder.
The Applicant describes in his statement the impact of the injury on his daily activities:
4.        Due to ongoing chronic pain I am unable to do many things that I did pre-injury. I cannot hang clothes on the line as my shoulder pain doesn’t allow me to reach high enough. Instead I use a clothes dryer that sits on the laundry bench so it easier for me to access. This causes extra expense and increased wear and tear on clothing. I have difficulties getting dressed particularly button up shirts and jumpers. It is very difficult putting on shoes and socks. Shopping is difficult as I cannot reach up to gather items off the higher shelfs (sic), pushing the trolley is also difficult. Therefore, I need to limit the amount of shopping I do.
5.        Most activities I do, I need to modify how I do them - such as walking and driving. I need to ensure I take breaks and limit the time I spend walking or driving.
6.        For heating during winter, we have a fireplace and I used to chop all of the wood using my right arm. Due to the right shoulder injury and pain I am no longer able to cut the wood. I now have to look for alternatives and pay more to have it delivered pre-split.
7.        As the pain has become worse it has also made it difficult for me to use my right hand. I get temperature changes in my right arm, hot and cold, numbness, swelling and mottling of the hand. My right hand sometimes sweats or becomes cold and clammy. This also occurs on my right arm. Several times a day I get pins and needles in my right hand. I also get a burning sensation in my right arm or it can also be sensitive to touch. At times a light t-shirt is enough to irritate the right arm when it is feeling sensitive. My right-hand swells and my fingers become stiff and sore. I am unable to type on a keyboard for extended periods and have noticed my fine motor skills have deteriorated to the point that holding and using a pen is difficult and causes pain.
8.        It is difficult to shower and undertake hygiene tasks. Comcare has provided me with a plastic aid to assist with wiping my bottom. It is a task I really struggle with. I have assistance three times a week by Warrigal Nursing Home for hygiene reasons. They also assist once a week with house cleaning. I cannot vacuum the whole house or mop the floors without causing additional pain and taking a lot of breaks.
9.        Every morning when I first get out of bed I need to run my right hand under warm/hot water to get it moving. I cannot open jars without assistance and have difficulties holding a toothbrush. As such I need to use an electric tooth brush and holding it up for two minutes is difficult.
10.      As my right arm/hand is my master hand, everyday living is made more difficult due to the pain. Since my left shoulder was replaced I had depended more on my master hand to complete everyday tasks. It is now the left am that I need to depend on more.
11.      The pain is always there, it is the intensity that changes. With more pain I become increasingly moody and withdrawn. I tend to snap easily and just want to shut down into myself. Some days the pain is so intense that it causes me to feel nauseas and I sometimes hold my breath for extended periods of time to try to cope.
12.      The pain keeps me from socialising or being part of a group. I don’t like being around others and prefer to deal with the pain myself. I avoid large groups as it makes me anxious that someone is going to bump or knock me and cause additional pain.
13.      I am very aware of my environment and avoid areas that could cause me to fall. I had a fall just over one year ago and had to wait on the floor until my son came home from school to help me up. I am unable to push myself up with my right arm to be able to get off the floor. I therefore cannot do any activity that requires me to get down low. I no longer go camping and 4WDrivng as it is too difficult and I no longer work on vehicle’s (sic). I grew up on a farm and was also a vehicle operator in the military so have spent a lot of time working on mechanical items, that was until I injured my right arm. I cannot undo nuts or bolts by hand and need to rely on others to assist me.
14.      My wife and I used to go out Ballroom and Latin American dancing together, however due to the right shoulder injury and associated pain I am unable to do this activity any more. Additionally, I cannot be around the crowds at the venues where this would be possible.
15.      I used to enjoy going shooting however cannot hold a rifle to my shoulder anymore and the kick would be way too painful even if I could hold the rifle properly. This is another activity that I have to alter and can only shoot with the rifle supported in a cradle. This means I would not be allowed to shoot competitively at all.
16.      Motorbike riding was also something I used to do. Reaching forward with the right shoulder and using the right hand to hold the accelerator is something I cannot do. If I was to ride again I would need to heavily modify the motorbike so I could ride it safely. This is also a consideration when driving a motor vehicle. I only drive an automatic now as I have difficulties holding the steering wheel just in my right hand whilst changing gears with my left arm. If I’m travelling any distance greater than the local shops I am driven by my wife. My medical appointments such as at the pain clinic in Sydney are only scheduled around when my wife can take the day off work.
17.      Whilst out shopping or even doing tasks at home I am limited to what I can carry. I cannot lift anything without discomfort and limit what I do pick up to 2kg as specified by my surgeon.
18.      I have difficulty sleeping as there is no such thing as a comfortable position and sometimes I wake up in immense pain. This then makes it difficult to get back to sleep.
19.      Every day it feels like I’m judged by others as my pain cannot always be seen by them. It can be simply picking up a parcel from the Post Office with my wife when a parcel is handed to me to carry. My wife steps forward to carry it instead which leaves the person wondering why I am making my wife carry it. This happens many times when we are out and whilst it might not seem like it, it does affect me. Just like when a short lady asks me to get something from the top shelf in the supermarket for her which I have to politely decline. It is embarrassing and a real limitation due to my right shoulder and the chronic pain.
During cross-examination, the Applicant confirmed that he has had 14 surgeries on the left shoulder, right shoulder, left knee and right knee. He experiences chronic pain in both the left and the right shoulder. Both the pain and functionality in his right shoulder is worse than the left.[47]
Expert Medical Evidence
[47] Transcript page 13.
Dr Jonathon Herald, Orthopaedic Surgeon
The Applicant was reviewed by Dr Herald following the Claimed Injury in September 2013. In his report dated 23 October 2013 Dr Herald noted that since the fall, the Applicant ‘has had shoulder pain and difficulty with shoulder height and above lifting’.[48] Dr Herald reported since the date of the Claimed Injury… he has had shoulder pain and difficulty with shoulder height and above lifting’. Dr Herald diagnosed the Applicant with an ‘impaction injury to glenohumeral joint and secondary inflammation of AC joint arthritis as well as impingement’, however, described the injury as ‘an aggravation of his shoulder joint’.
[48] T Documents, T145.
In a review report dated 24 March 2014, Dr Herald noted that the Applicant displayed a full range of movement in the right shoulder.[49] Dr Herald was pleased with the Applicant’s progress and recommended strengthening exercises.
[49] T Documents, T165.
Dr Herald provided a further report dated 9 March 2015.[50] He expressed the view that the Applicant was suitable for medical retirement. He stated that:
in regards to his shoulders, I would have to say that although he has a chronic pain syndrome affecting both shoulders, a left total shoulder replacement and right shoulder subacromial decompression, it is his left shoulder that would be the substantial cause of his medical retirement given that it has been replaced by a prosthetic shoulder as opposed to the right shoulder which is still his native shoulder. He will have ongoing permanent restrictions for his left shoulder due to its prosthetic nature.
[50] T Documents, T203.
Dr Herald provided a further report dated 15 January 2016.[51] Dr Herald described the Applicant’s right shoulder as having ‘forward flexion of about 90 degrees, extension to 20 degrees, external rotation in adduction to 10 degrees, internal rotation in adduction to 10 degrees and abduction to 70 degrees and adduction to between 10 and 15 degrees’.
[51] T Documents, T241.
Dr Herald assessed the Applicant’s impairment as 13 per cent whole person impairment under Table 9.11 of the Comcare Guide.
Dr Jordan Wood, Specialist in Anaesthesia and Pain Management
Dr Wood provided a report to Comcare dated 17 February 2014.[52] He reported:
Current symptomatology is of global pain in the right shoulder and upper arm but maximal in the lateral aspect of his upper arm and anterior shoulder. [The Applicant] says he has spasms down the medial aspect of his upper arm and the pain is felt as a burning and gripping sensation. He rates that pain 7/10 usually, 10/10 worst most days and 3/10 at best. His pain behaviour includes withdrawing and waking up swearing at night according to his wife. The pain has significant spontaneous features as well as mechanical features which raises my suspicions of a neuropathic process… [The Applicant] describes several features of complex regional pain syndrome including colour changes in the arm, weakness, temperature changes and a feeling of incoordination within the arm.
[52] T Documents, T157.
Dr Wood found that the Applicant’s right shoulder had ‘superficial hypoaesthesia around the shoulder girdle but no major deep tissue allodynia apart from the anterior gleno-humeral joint’. Dr Wood reported that the Applicant ‘demonstrated paraspinal muscle tenderness and says that he does get some chronic spinal pain.’ Dr Wood also noted that the Applicant had chronic opioid and benzodiazepine tolerance.[53]
[53] T Documents, T157.
On 3 March 2014 Dr Wood reported that the Applicant’s surgery on 25 February 2014 appeared to have exacerbated the Applicant’s symptoms of complex regional pain syndrome in the right upper limb.[54]
[54] T Documents, T160; Respondent’s SFIC paragraph 44.
Dr Uthum Dias, Consultant Occupational Physician
Dr Uthum Dias, consultant occupational physician, assessed the Applicant on 24 June 2014 for the AFP. In his report dated 28 June 2014,[55] Dr Dias diagnosed the Applicant as suffering from:
·Chronic right shoulder impingement syndrome secondary to moderate acromioclavicular joint arthritis and acute glenohumeral impaction injury.
·Chronic left shoulder impingement syndrome and post total left shoulder replacement for advanced glenohumeral osteoarthritis.
·Chronic non-specific cervical spine pain secondary to degenerative disc disease.
[55] T Documents, T175.
Dr Dias noted that the Applicant has pre-existing injuries to his left shoulder and cervical spine, which have an impact upon his employment capacity. He considered the Applicant currently unfit for work, and said that he should be reviewed in three months to determine whether he was a candidate for invalidity retirement.
In a further report dated 29 September 2014,[56] Dr Dias considered that ‘in relation to his chronic pain, it appears that [the Applicant] has developed a severe chronic regional pain syndrome affecting his right shoulder. He remains under the care of the pain specialist, Dr Jordan Wood, and is enrolled in a multidisciplinary pain management program at the Prince of Wales Hospital’. Dr Dias reported that the Applicant’s condition had not improved since the time of his previous assessment, and that he was now an appropriate candidate for invalidity retirement.[57]
[56] T Documents, T185.
[57] T Documents, T185; Respondent’s SFIC at paragraph 51.
Dr Matthew Paul, Consultant Occupational Physician
Dr Paul, consultant occupational physician, provided a report to the Respondent dated 28 October 2015.[58] He diagnosed the Applicant as suffering from:
·          Aggravation of pre-existing shoulder condition;
·          Impaction injury of right shoulder; and
·          Aggravation and extension of his pre-existing chronic pain condition.
[58] T Documents, T227.
Dr Paul also reported that:
[The Applicant] is suffering from an aggravation of his underlying painful right shoulder condition which is a degenerative condition. He has also suffered an impaction injury into the right shoulder and a worsening and extension of his chronic pain condition.
This chronic painful condition has been aggravated to some degree by the fall in September 2015 (sic – 2013). As a result of the fall, his symptoms appear to have extended into the right side to a greater degree.
If it were not for the fall in September 2013, he would not have sustained the aggravation of his degenerative condition and also pain condition… he has been since then left with worsened chronic pain which continues to affect him even though he has retired from his employment.
Dr Paul was asked to provide a permanent impairment assessment, but stated this could not be done as the Applicant was considering further treatment.
Associate Professor Neil McGill, Rheumatologist
The Applicant saw Associate Professor McGill at the request of the Respondent on 26 October 2016. He wrote a report following his examination of the Applicant dated 4 November 2016.[59] He concluded that the Applicant was suffering a pain syndrome in his right shoulder:
I think that his right shoulder symptoms are appropriately described as a pain syndrome. He does not have complex regional pain syndrome.[60]
[59] T Documents, T248.
[60] T248, 705.
He reported:
[The Applicant] has had considerable assistance with regard to pain management and was on more medication prior to his right shoulder problem. I think it is unlikely that specific medical or rehabilitative treatment will assist. Any benefit to be achieved from formal physiotherapy is likely to have been achieved within a one-year period of surgery.
Restriction due to a pain syndrome usually does not remain permanent but I cannot indicate when his symptoms may improve.
Based on the imaging studies, one would not expect his condition to deteriorate in relation to the injury he suffered.
His impairment in accordance with the Comcare Guide (second edition) is appropriately determined using tables are 9.11.1a/b/c. Based on the range of movement which he offered, he has 10% Whole Person Impairment (flexion 4%, extension 0%, abduction 3%, adduction 0%, external rotation 1%, internal rotation 2%).[61]
[61] T248, 705-706.
Associate Professor McGill also noted that ‘there was no history of any physical right shoulder problem unrelated to [the Applicant’s] employment’. Further, he opined that due to the fact that the Applicant was already using a large amount of pain medication prior to injuring his right shoulder, ‘the contribution of his right shoulder to his analgesic requirement is negligible’.[62]
[62] T Documents, T248; Respondent’s SFIC at paragraph 60.
During his oral evidence at the Tribunal hearing, Associate Professor McGill was asked to explain what is meant by the term ‘syndrome’. He stated:
Syndrome is a group of symptoms and, or, signs that occur together. That’s the beginning and end of the concept of syndrome as opposed to a disease where the aetiology is thought to be known. A syndrome doesn’t imply that we necessarily understand the mechanism by which the symptoms and signs occur together, but they occur as a group.[63]
[63] Transcript at page??
Associate Professor McGill was asked whether there is a difference between ‘chronic pain’ and ‘chronic pain syndrome’. He answered:
No, I don’t think so. There’s a big difference between those two words, which are just applied by individuals. There’s no definition for chronic pain or chronic pain syndrome, that’s different from complex regional pain syndrome for which we do have definitions.[64]
[64] Transcript 13 August 2018 page 37 at lines 44-47.
Associate Professor McGill was asked for his opinion as to whether the Applicant had complex regional pain syndrome to which he answered:
he clearly doesn’t meet any of the definitions of complex regional pain syndrome.[65]
[65] Transcript 13 August 2018 page 38 at lines 1-3.
He was asked for his opinion as to why the Applicant has pain in his right upper limb:
In terms of his right upper limb pain, he had an injury to the right shoulder and I think that injury has reported pain in the shoulder. Although the persistence of the pain has been greater, you know, a bit longer than one would expect from the injury. Someone with a long history of reporting pain in various areas, it’s not too surprising that he continued to report pain after a shoulder injury.[66]
…
It’s that pathological change that I think was the initiator of the pain and he’s continued to report pain since. Now, the oedema will have gone away or one would expect it will have gone away, but sometimes after an injury, people will continue to report pain and that’s what’s happened here.[67]
[66] Transcript 13 August 2018 page 38 at lines 10-15
[67] Transcript 13 August 2018 page 38 at lines 27-31.
When questioned, Associate Professor McGill denied that there was any damage or malfunction of the upper limb other than the pathology to the shoulder that could be causing the Applicant’s pain.[68]
[68] Transcript 13 August 2018 page 38 at lines 35-38.
During cross-examination, Associate Professor McGill confirmed that having looked again at his examination findings, he did not find evidence of a disorder in the Applicant’s right upper limb separate from his right shoulder.[69] When asked his opinion about the Applicant’s reports of burning in both arms, forearms and hands, Associate Professor McGill said that these are ‘caused by his response to the injury in the shoulder.’[70]
Dr David Gorman, Consultant General Physician, Pain Management Specialist and Medical Oncologist
[69] Transcript 13 August 2018 page 44 at lines 25-27.
[70] Transcript 13 August 2018 page 44 at lines 29-32.

The Applicant was examined by Dr Gorman at the request of the Respondent on 14 March 2017 and provided a written report dated 27 April 2017.[71]
[71] T Documents, T255.
In his report, Dr Gorman opined that the Applicant suffered from bilateral shoulder pain with ‘right shoulder impingement syndrome secondary to moderate acromioclavicular joint arthritis and acute glenohumeral impaction injury in 2013’. He considered that the Applicant had a 12 per cent whole person impairment assessed in accordance with Table 9.11 of the Comcare Guide, and further considered:
I do not believe that [the Applicant] has signs to satisfy the ‘complex regional pain syndrome criteria’.
In summary, I believe that the assessment of the right shoulder is best made on range of movement without any addition to abnormalities in sensation or motor power. Note that there was no mottling or discolouration or swelling or oedema or increased sweatiness when I reviewed him. He did not have severe allodynia as reported by Dr Mahfoud in his handwritten report of 5 December 2016.
Dr Gorman found that the Applicant:
… does suffer an impairment due to his right shoulder injury and ‘chronic pain syndrome’ related to his right shoulder injury.[72]
[72] T Documents, T255 at para 1.
He confirmed this in his oral evidence to the Tribunal:
The - the right shoulder condition led to a chronic pain syndrome developing, and that chronic pain syndrome characterised by ongoing pain deconditioning, decrease in activity, opioid - the need for opioids … If we limit it to chronic pain syndrome the right shoulder pain persisted and caused the development of a chronic pain syndrome.[73]
[73] Transcript 14 August 2018 page 4 at lines 17-24.
In his oral evidence, Dr Gorman described ‘chronic pain syndrome’ as an example of nociception sensitisation which in his opinion is the condition affecting the Applicant:
Well, the idea is that normal healing should occur after an injury and therefore symptoms should resolve. If an injury persists then the reason it may persist of course is that there is ongoing nociception, in other words ongoing painful stimuli arising from the area, and I think we have to say that in this case that probably is a significant part of the ongoing pain. The other thing that can occur is that the - there can be sensitisation at the spine or in the brain, which means that the pain persists independently of the tissue that was originally damaged. And, you know, the classic form of complex regional pain syndrome is like this where you get - can have a relatively minor injury which clearly heals and then you have persisting pain, which must be from a sensitisation of the pain system. But in Mr Singleton’s case, you know, we’ve got - we’ve got on at least some ongoing nociceptive cause, it’s not - nobody’s saying that the shoulder’s returned to normal. The shoulder is still abnormal, it’s still scarred, it’s still abnormal, so that discussion isn’t quite so relevant here. You’ve got ongoing nociception.[74]
[74] Transcript 14 August 2018 page 4 at lines 30-44.
In his report, Dr Gorman provided his opinion as to whether the Applicant’s initial condition had been superseded by a different condition:
I do not feel that necessarily he has a different condition in his right shoulder. He has had an injury to his right shoulder and surgery in February 2014. Liability was accepted in November 2016 for ‘chronic pain syndrome’ related to his right shoulder condition. I do not believe that this is a different condition – the right shoulder injury led to the chronic pain condition.[75]
[75] T documents, T255 at page 758.
During his oral evidence, Dr Gorman was asked whether there is any different pathology attributable to chronic pain syndrome that is not attributable to the Applicant’s right shoulder injury:
No, I don’t believe so. … [T]here are some experts who have been arguing that it is a different – it becomes a different disease. Some of your hormone levels change, your brain might be sensitised as Dr Eaton says and that sensitisation might be hard to reverse but … I believe that [the Applicant] had a chronic pain in the shoulder which was – had led to some other effects best described as chronic pain syndrome but they were not a new disease of its own.[76]
[76] Transcript 14 August 2018 page 16, lines 18-40
Dr Garth Eaton, Occupational Physician
The Applicant saw Dr Eaton at the request of his solicitors on 8 November 2016 and provided a report dated 21 November 2016.[77]
[77] T Documents, T251.
Dr Eaton diagnosed the Applicant with osteoarthritis right glenohumeral joint, chronic right shoulder pain and dysfunction, and complex regional pain syndrome (type 1). He assessed the Applicant as having an 11 per cent whole person impairment as a result of his right shoulder injury. Dr Eaton observed:
[The Applicant] demonstrated he had mottling of the skin of the palm of the right hand, some swelling of the right upper limb consistent with oedema, early swelling above the right clavicle, sweatiness of the palm of the right hand, joint stiffness and decreased active and passive motion of the right shoulder as well as severe allodynia around the right shoulder and upper arm. Skin temperature however appeared to be normal. However not all changes of complex regional pain syndrome are likely to be seen at the one examination due to the fluctuating nature of the condition.
Dr Eaton diagnosed the Applicant with CRPS (type 1) and considered the impairment grading to be a grade 3, stating that a whole person impairment rating of 20 per cent ‘would seem to be reasonable and appropriate’.[78]
[78] T Documents, T251 at page 724-725.
Dr Eaton provided a supplementary report dated 21 November 2017.[79] He reported that the Applicant’s presentation ‘would strongly suggest a diagnosis of complex regional pain syndrome type I’. He said that ‘on any particular day not all the usual signs and symptoms of CRPS 1 will necessarily occur’. He maintained a rating of 20 per cent degree of permanent impairment under Table 9D of the Guide.
[79] Exhibit A2.
Dr Eaton provided a further supplementary report on 26 December 2017[80] following a review of the Applicant on 21 December 2017. He assessed the Applicant as suffering from a 12 per cent whole person impairment in relation to loss of grip strength in his right arm. This assessment was made under AMA5 Table 16-32. He also confirmed his opinion that the Applicant suffers from a 20 per cent whole person impairment in relation to his chronic pain condition in the right arm under AMAS Table 18-4.
[80] Exhibit A3.
During his concurrent evidence with Dr Gorman at the hearing, Dr Eaton was asked about the difference between the Applicant’s right shoulder condition and the CPS. He stated:
Well, the right shoulder refers to structural injury damage (indistinct) tissue damage pain that he would experience from that; chronic pain syndrome is a more descriptive diagnosis or subjective and it develops long after healing is expected to have taken place, much worse than expected. (Indistinct) usually going for at least three months. Often there’s - well, because neuropathic pain symptoms and things like central sensitisation are considered, and it’s part of the process.[81]
…
[I]n regard to the right shoulder condition it’s obviously pain dysfunction due to the anatomical and structural injury which causes pain, restricts movement, weakness, (indistinct) right upper limb; there may be some scarring from surgery, but basically functional capacity is affected and can be loss of use. The pain, the chronic pain, a more subjective condition, there are often associated psychological and emotional difficulties, cognitive memory difficulties, anxiety, a whole host of things associated with the chronic pain condition, so other functions of the body can be affected.[82]
[81] Transcript 14 August 2018 page 4 at lines 8-13.
[82] Transcript 14 August 2018 page 5 at lines 8-13.
Dr Eaton explained his view that CPS may be contributed to by a process in the central nervous system and how this differed from Dr Gorman’s opinion:
Look, I agree with Dr Gorman in that it is a secondary condition following on from the original injury, however, I do also believe that there is a process going on in the central nervous system that is contributing to the chronic pain condition ... I do think the only difference I have with Dr Gorman is I do think there are things happening – we mentioned sensitisation and things going on to produce the sort of symptoms that Mr Singleton described, you know, burning and then the allodynia, hypersensitivity to touch – to light touch and things like that. It’s thought to be associated with changes in the brain and neuroplasticity happening.[83]
…
Syndrome just means it’s a descriptive diagnosis of a collection of signs and symptoms basically and so I don’t think – I would agree that it is just like a bad pain coming from the original trauma and the surgery. That is the reason why Mr Singleton is in the state he is in. I think there’s more to it. I definitely agree with Dr Gorman that it is secondary and following on from (indistinct). It’s not a new disease in the sense that it is, you know, something that happened for no particular reason. It’s definitely linked.[84]
[83] Transcript 14 August 2018 page 16 at lines 44-47 and page 17 at lines 1-8.
[84] Transcript 14 August 2018 page 17 at lines 16-22.
Dr Eaton explained that there is a school of scientific thought that considers CPS to be a disease or illness in its own right:
Well basically it is thought to be a disease in its own right. An illness in its own right and there are people who work on this a few years ago. There was a really big push by the international association for the study of pain and some of the pain bodies about chronic pain being a condition in its own right …[85]
[85] Transcript 14 August 2018 page 17 at lines 33-37.
He noted however that this may be more relevant to persons, unlike the Applicant, with pain who had not experienced trauma:
but that may more refer to people who develop pain without really any history of any trauma or, you know, any major sort of incident. Akin to developing a migraine or headaches and things like that. So I – but I don’t think they’d look upon it – this man’s problem in that light but definitely his condition is linked, secondary, following on – Dr Gorman’s, his words – I quite agree with.[86]
SUBMISSIONS
[86] Transcript 14 August 2018 page 17 at lines 37-43.
Applicant’s Submissions
The Applicant provided written submissions following the hearing.[87]
[87] Applicant’s Submissions dated 25 September 2018 (Applicant’s Submissions).
The Applicant has two accepted injuries to his right arm under s 14 of the SRC Act:
(a)an impingement syndrome to the right shoulder – accepted in 2013;
(b)CPS in the right arm – accepted in November 2016.[88]
[88] Applicant’s Opening at paragraph 2.
The Respondent has accepted liability for incapacity under s 19 of the SRC Act for medical treatment under s 16 SRC Act for both injuries.[89]
[89] Applicant’s Opening at paragraph 3.
The Respondent has accepted liability for permanent impairment for the impingement injury to the Applicant’s right shoulder and he has been granted a 10 per cent permanent impairment under s 24 SRC Act and Table 9.11 of the Guide for the partial loss of rotation in the right shoulder.[90] This award is not the subject of the present proceedings and the Applicant does not dispute that the assessment was adequate.[91]
[90] Applicant’s Submissions at paragraphs 2-3; Applicant’s Opening at paragraph 4.
[91] Transcript 14 August 2018 page 28 at lines 43-46.
The right shoulder impingement results in a partial loss of rotation of the joint which is all Table 9.11 assesses. Table 9.11 does not have regard to any other loss of function in the arm or hand.[92]
[92] Applicant’s SFIC at paragraph 42.
The Applicant also has an accepted CPS injury in the right arm as a whole including the hand.[93] It is necessary to assess any ‘impairments’ resulting from this injury specifically:
(a)the further assessments of 12 per cent permanent impairment for the partial loss of grip strength in the right arm resulting from the CPS; and
(b)the further assessment of 20 per cent for the partial loss of the use of the right arm as a whole resulting from the CPS.
[93] Applicant’s SFIC at paragraph 12, 14.
The CPS injury is not the same injury as the impingement in the right shoulder. The CPS does not manifest in the same impairments as the impingement injury.[94]
[94] Applicant’s SFIC at paragraph 41.
The CPS injury produces kinds of impairments other than a partial loss of rotation of the shoulder joint. The CPS affects the use of the arms and hands as a whole. These losses include a partial loss of capacity to bear weight, partial loss of fine motor skills and a partial loss of grip strength.[95]
[95] Applicant’s SFIC at paragraph 43.
The Applicant's case for the impairment caused by the CPS can succeed on either of two bases:
(a)The shoulder injury caused the CPS (taken as a secondary injury) which caused the partial loss of use of the arm and hand; or
(b)The shoulder injury caused the CPS (not elevated to the status of a secondary injury) which caused the partial loss of use of the arm and hand.[96]
[96] Applicant’s submissions at paragraph 32.
In either case there is an unbroken chain of causation from the shoulder injury to the partial loss of use of the arm and hand. It is not necessary that the injury be the proximate cause of the impairment.[97] Whether the CPS is treated as a secondary injury is ultimately irrelevant to the facts of this case.[98]
[97] Applicant’s Opening at paragraph 27.
[98] Applicant’s Submissions at paragraph 33.
The CPS injury produces kinds of impairments other than a partial loss of rotation of the shoulder joint. The CPS affects the use of the arms and hands as a whole. These losses include a partial loss of capacity to bear weight, partial loss of fine motor skills and a partial loss of grip strength.[99]
[99] Applicant’s SFIC at paragraph 43.
There is no relevant Table in the Guide to assess the impairment to the arm as a whole from CPS or the loss of grip strength.[100] Table 9.11 is not ‘relevant’ to the assessment of these kinds of impairments and would, if applied, automatically produce a nil rating.[101] Table 13.3.3 is not an ‘applicable’ Table in the Comcare v Broadhurst [2011] FCAFC 39 sense because of its statutory diagnostic criteria.[102] As there is no other relevant and applicable Table in the Guide, recourse must be had to the AMA5.[103]
[100] Applicant’s Opening at paragraph 47.
[101] Applicant’s SFIC at paragraph 44.
[102] Applicant’s Opening at paragraph 64; Applicant’s Submissions at paragraph 36.
[103] Applicant’s SFIC at paragraph 45.
Principle of Assessment 12 at page 26 of the Guide says that the AMA5 cannot be used for assessment of chronic pain conditions. The Guide therefore appears to provide no relevant assessment for CPS no matter how severe. This outcome would violate the principles in Whittaker v Comcare (1998) 86 FCR 532 and other cases to the effect that it is not open to the Guide to exclude injuries and impairments from assessment;[104] the Guide's role is only to quantify them.[105]
[104] Applicant’s Opening at paragraphs 67 and 70.
[105] Applicant’s SFIC at paragraph 47.
The purported limitation in the Guide is ultra vires and of no effect.[106] The Guide is delegated legislation and cannot be inconsistent with the SRC Act.[107] It is not the role of the Guide to define ‘impairment’ as this is defined in the Act.[108] The role of the Guide is limited to quantifying the degree of impairment consistently with the definition of impairment in the Act.[109]
[106] Applicant’s Opening at paragraph 61.
[107] Applicant’s Submissions at paragraphs 35 and 44.
[108] Applicant’s Opening at paragraph 62.
[109] Applicant’s Opening at paragraph 63.
If Principle 12 does validly prevent access to the AMA5 then the Guide must permit, or not prevent, an alternative method of assessment of the impairment that results from the accepted injury.[110]
[110] Applicant’s Opening at paragraph 73.
The AMA5 has its own default position to cover situations where there is no relevant and applicable Table in the Guide: it permits recourse to clinical judgment.[111] In performing that clinical judgment, the medical practitioner is entitled to be guided by other instruments and Tables that appear relevant. Thus, the clinical judgment could have regard to the AMA5 Table for CPS notwithstanding that it does not formally apply as a mandatory instrument.[112]
[111] Applicant’s Opening at paragraph 72.
[112] Applicant’s SFIC at paragraph 48.
The Applicant is entitled to rely on Table 18-4 of the AMA5 per Dr Eaton's assessment of 20 per cent for the loss of the use of the arm as a whole. Even if this Table did not apply the Applicant is ultimately entitled to rely on Dr Eaton's clinical judgment.[113]
[113] Applicant’s Submissions at paragraph 61.
Respondent’s Submissions
The Applicant suffers an accepted injury to his shoulder giving rise to permanent impairment. There is no separate or other, additional ‘injury’ resulting in impairment.[114]
[114] Respondent’s Submissions at paragraph 5.
To the extent that the Respondent has previously accepted liability to pay compensation under s 14 of the SRC Act for a separate ‘chronic pain syndrome’, in accordance with the authority of Telstra Corporation v Hannaford (2006) 151 FCR 253 (‘Hannaford’), the Tribunal is entitled to ‘undercut’ the findings in that decision and make factual findings wholly inconsistent with it.[115]
[115] Respondent’s Submissions at paragraph 6.
The defined term ‘injury’ in s 5A of the SRC Act has been described by the High Court as ‘the resultant effect of an incident or ailment upon the employee’s body’ (Canute v Comcare (2006) 226 CLR 535 at [10]) (‘Canute’). The existence of more than one ‘impairment’, being ‘the loss, the loss of the use, or the damage or malfunction, or any part of the body or of any bodily system or function or part of such system or function’ (see s 4 interpretation), does not assist in the determination of whether there is more than one injury: ‘[t]he statutory criterion of an "injury" is antecedent to the concept of "whole person" impairment, not the other way around’ (Canute at [37]).[116] A singular ‘resultant effect’ on the body may result in multiple losses of the type described as an ‘impairment’.[117]
[116] Respondent’s Submissions at paragraph 8.
[117] Respondent’s Submissions at paragraph 10.
The critical inquiry is, ‘what was the “resultant effect” on the Applicant of the workplace incident’? This inquiry will enable the Tribunal to answer the relevant statutory questions, namely, what injury, or injuries, the Applicant suffered, and in turn, what impairments, if any, have resulted from that, or those, injur(ies).[118] Those questions must be answered, in practical terms, by reference to the evidence of the expert medical witnesses.[119]
[118] Respondent’s Submissions at paragraph 11.
[119] Respondent’s Submissions at paragraph 12.
The expert medical evidence supports a finding that CPS is not an injury of itself.[120]
[120] Respondent’s Submissions at paragraphs 13-38 and paragraph 39.
The Applicant does not suffer an injury characterised by pain: rather, he suffers pain entirely explicable upon the basis of, and only because, he sustained an injury to his right shoulder.[121]
[121] Respondent’s Submissions at paragraph 41.
The Applicant has already been compensated for permanent impairment resulting from the injury to his right shoulder and no further compensation is payable.[122]
[122] Respondent’s Submissions at paragraph 42.
The Tribunal has no jurisdiction to review the amount of compensation payable in respect of the right shoulder and, there being no separate injury, it follows that the reviewable decision must be affirmed.[123]
CONSIDERATION AND FINDINGS
(1)Did the Applicant sustain an ‘injury’ recognised as ‘complex pain syndrome’?
[123] Respondent’s Submissions at paragraph 43.
Was liability correctly accepted by the Respondent?

The first issue for determination requires the Tribunal to consider whether liability was correctly accepted by the Respondent in its determination dated 8 November 2016.
In Hannaford, the Full Court of the Federal Court considered whether the Administrative Appeals Tribunal (‘AAT’) is empowered to make findings of fact that are contrary to those found by the original decision-maker under s 14 of the SRC Act, in circumstances where the AAT is undertaking a review of determinations under s 16 and s 19 of the SRC Act.
Conti J, in Hannaford, with whom Heerey J and Dowsett J agreed, stated the following at [273]-[274]:
… it should be concluded, upon the correct construction of the SRC Act, and in particular of the provisions thereof upon which I have focused attention in these reasons, that the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker (here of course Telstra) made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events and circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part…’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.
Conti J concluded at [274]:
I would therefore conclude, contrary to the decision of the primary judge, that the AAT below was duly empowered, upon the true construction of the SRC Act and in the events which happened:
(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and
(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
In short, it matters not, upon the true construction of the SRC Act, that there has never been any reconsideration of the determination of Telstra of 8 May 2002 whereby liability under s 14 thereof for Mr Hannaford’s claim originally made on 1 May 2002 had been accepted.
The determination of the Respondent dated 8 November 2016 in relation to liability for ‘chronic pain syndrome’ remains in operation and ‘has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT’.
In accordance with the principles outlined in Hannaford, the AAT can revisit whether liability was correctly accepted by the Respondent for ‘chronic pain syndrome’ under s 14 of the SRC Act on 8 November 2016.
The statutory relationship between an ‘injury’ and a ‘permanent impairment’
As the Full Court of the Federal Court observed in Comcare v Farrell [2016] FCAFC 115 at [13], s 24(1) of the SRC Act is concerned with an ‘injury’ which ‘results in a permanent impairment’.
The High Court in Canute explained the relationship between these statutory terms. Gummow A-CJ, Kirby, Callinan, Heydon and Crennan JJ referred at the outset to the structure of the SRC Act whereby compensation is payable in respect to an employee’s “injury”:
[10] At this juncture, three things may be observed about the concept of "an injury". First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of "the injury". Secondly, the term "injury" is not used in the Act in the sense of "workplace accident". The definition of "injury" is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term "injury" is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to "disease" or "physical or mental" injuries and, at least to that extent, it assumes that an employee may sustain more than one "injury". The use in s 24(1) of the indefinite article in the expression "an injury" reinforces that conclusion.
…
[14] … it is important to remember that recourse to the criteria and methodologies set out in the Guide is only necessary once the key statutory criterion of the occurrence of "an injury" (which resulted in at least one permanent impairment) has been fulfilled. The Guide is to be approached through the prism of each "injury". The terms of s 24(5) are quite clear; Comcare is to assess the degree of permanent impairment of the employee "resulting from an injury". Similarly, in s 24(7), the threshold permanent impairment of the employee of 10 per cent affects the amount of compensation payable "under this section"; that is, "in respect of the injury" (s 24(1)).
[15] The scheme of the Act proceeds in this way from the occurrence of "an injury", in the defined sense. As previously remarked, the Act assumes that more than one "injury" may occur. Therefore it is not correct to say that s 24(5) imports a "whole person" approach to the determination of the degree of permanent impairment. That ignores the centrality of "an injury" to the scheme upon which Comcare's liability to compensate depends.
…
Their Honours continued:
[32] For the majority, it was critical that the “injury” constituted by the adjustment disorder could also be described as contributing to a “subsequent increase in the degree of impairment” attributable to the earlier back injury in respect of which a final determination had been made (for the purposes of s 25(4)). This was possible because of the breadth of the statutory definition of “impairment”. In those circumstances, the majority construed the Act as requiring that the relevant condition only be treated as going to “impairment” and not as a separate “injury” resulting in an impairment. Upon that reasoning the injury constituted by the adjustment disorder did not give rise to a separate liability under s 24 of the Act because it was also an impairment resulting from the back injury.
In rejecting the approach of French and Stone JJ in Comcare v Canute [2005] FCAFC 262 their Honours said:
[34] Reduced to its essentials, the conclusion of the Full Court majority depended upon the proposition that:
“the policy of [the Act] seems to require such an injury to be treated as an aspect of the impairment created by the initial injury.”
It is clear from the context that what was being referred to was what the majority described as a “consequential injury”, a notion supported by Comcare in terms of “primary” and “secondary” injuries. Comcare’s case depends upon confining the meaning of “injury” to exclude such “consequential injuries”. However, there is no foundation in the Act for any such distinction between “an injury” and a consequential or secondary injury. Neither of these qualifiers finds any expression in the Act. The Act speaks exclusively in terms of “an injury”.
Their Honours continued:
[37] … It is true that the Guide seeks to provide for the assessment of "the degree of permanent impairment of the employee" on a whole of person basis. But, as indicated earlier in these reasons, s 24(5) of the Act imposes a duty upon Comcare to determine "the degree of permanent impairment of the employee resulting from an injury". It is the occurrence of "an injury" which both actuates and defines the ambit of Comcare's duty pursuant to s 24 of the Act. Once that duty has been performed, subss (3) and (4) of s 24 operate, in a self-executing way, to quantify the amount of compensation payable by Comcare. That amount is payable in satisfaction of Comcare's liability which arises "in respect of the injury" under s 24(1). The Act only adopts the "whole person impairment" approach with respect to permanent impairments resulting from each "injury". That "whole person" approach cannot properly be used to deny the applicability of s 24 to something which corresponds to the legislative definition of an "injury". The statutory criterion of an "injury" is antecedent to the concept of "whole person" impairment, not the other way around.
(Emphasis added)
In Comcare v Farrell [2016] FCAFC 115, the Full Court of the Federal Court emphasised that the legislation requires the decision-maker to identify the ‘injury’ which has ‘resulted in permanent impairment’. The claim itself cannot constitute a permanent impairment:
[43] … the claim as made cannot constitute a permanent impairment. Nor can it define for the decision-maker whether there is a permanent impairment. The statute does not require a determination whether the claim as made constitutes a permanent impairment. It requires a claimed injury (s 53(1)) and a determination of whether the claimed injury (related to employment in the sense required by the definition of “injury” in s 5A(1)(b) of the SRC Act) has resulted in a permanent impairment. That determination, under s 24(2), is to be made with respect to each injury (see Canute as referred to above) and having regard to the factors set out in s 24(2)(a) to (d); the claim itself cannot determine the existence or nature of the impairment. If made, the degree of permanent impairment is then to be assessed in accordance with the approved Guide, as provided for in s 24(5).
[44] A claim under s 24 involves the assertion that the employee suffers from an employment related injury (as required by s 5A(1)(b)) and permanent impairment resulting from that injury. However the claim cannot “constitute” or define the permanent impairment. It is for the decision-maker to determine whether the employee suffers from a permanent impairment resulting from an “injury”, doing so by reference to the factors in s 24(2).
(Emphasis in original)
These authorities make clear that the Applicant’s claim for ‘chronic pain syndrome’ does not define the permanent impairment. The claim made cannot determine the existence or nature of the impairment. It is for the Tribunal to determine whether the Applicant’s ‘chronic pain syndrome’ is an ‘injury’ under the SRC Act. Only after this has been determined can the Tribunal assess the degree of any permanent impairment in accordance with the Guide.
Is the Applicant’s ‘chronic pain syndrome’ an ‘injury’?
The evidence before the Tribunal, particularly the expert medical evidence, supports a finding that the Applicant’s ‘chronic pain syndrome’ is not an ‘injury’ for the purposes of the SRC Act.
Associate Professor McGill’s evidence was that there was no damage to the Applicant’s right upper limb in addition to the right shoulder injury. He said in his oral evidence:
… I don’t find evidence of a disorder in the right upper limb, separate from his right shoulder.[124]
[124] Transcript 13 August 2018 page 44, lines 25-27; see also lines 31-32 and 38-41.
Dr Gorman’s concurred that the chronic pain experienced by the Applicant was not the consequence of any anatomical or physical changes.[125] In his opinion the Applicant’s pain is ‘ongoing nociception’ deriving from the Applicant’s injured right shoulder.[126] The CPS is not a separate injury or disease in addition to the Applicant’s right shoulder injury:
I believe that he had a chronic pain in the shoulder which … had led to some other effects best described as chronic pain syndrome but they were not a new disease of its own.[127]
[125] Transcript 14 August 2018 page 5, lines 28-32.
[126] Transcript 14 August 2018 page 4, lines 30-44.
[127] Transcript 14 August 2018, page 16, lines 38-40.
Dr Eaton’s evidence was that ‘chronic pain syndrome’ can be considered ‘a condition in its own right’ but he conceded that this is more likely to be in cases of individuals who, unlike the Applicant, ‘develop pain without really any history of any trauma or … any major sort of incident. Akin to developing a migraine or headaches or things like that.’[128]
[128] Transcript 14 August 2018, page 17, lines 37-39.
Accordingly, on the basis of the medical evidence before it, the Tribunal finds that the Applicant did not suffer an ‘injury’ as defined by s 5A(1) of the SRC Act. The evidence does not support a finding that the Applicant’s CPS is an injury simpliciter under s 5A(1)(b) or a disease under s 5A(1)(a) and s 5B(1).
It follows that the Respondent’s acceptance of liability on 8 November 2016 to pay compensation under s 14 of the SRC Act in relation to ‘chronic pain syndrome’ was in error.
As outlined above in para 21, the Applicant has been compensated for a permanent impairment to his right shoulder following the orders of the Tribunal on 23 January 2017 that the Respondent is liable to pay compensation for 10 per cent whole person impairment in respect of an ‘unspecified injury to shoulder and arm (right)’ under Table 9.11.
The Applicant does not dispute that the assessment of compensation in relation to the Applicant’s right shoulder and arm injury was adequate. In any event, the adequacy of the compensation paid for this injury is not within the jurisdiction of the Tribunal to review.
As a consequence of these findings, it is unnecessary for the Tribunal to consider the other Issues for Determination outlined in para 35 above, namely whether the Applicant suffers a permanent impairment resulting from the CPS injury, and if so, the degree of permanent impairment to be assessed in accordance with the Guide.
The Tribunal is satisfied that the Respondent is not liable to pay compensation under ss 24 and 27 of the SRC Act in relation to ‘chronic pain syndrome’.
DECISION
The Reviewable Decision is affirmed.

I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

........................................................................
Associate
Dated: 1 November 2018

Date(s) of hearing: 13 August 2018 - 14 August 2018

Date final submissions received: 2 October 2018

Counsel for the Applicant: Mr Allan Anforth

Solicitors for the Applicant: Mr David Healey, David Healey Solicitors

Counsel for the Respondent: Mr Peter Lehmann

Solicitors for the Respondent: Ms Kate Watson, Lehmann Snell Lawyers

Date(s) of hearing:	13 August 2018 - 14 August 2018
Date final submissions received:	2 October 2018
Counsel for the Applicant:	Mr Allan Anforth
Solicitors for the Applicant:	Mr David Healey, David Healey Solicitors
Counsel for the Respondent:	Mr Peter Lehmann
Solicitors for the Respondent:	Ms Kate Watson, Lehmann Snell Lawyers