Small and Comcare - [2001] AATA 767

DECISION AND REASONS FOR DECISION [2001] AATA 767

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/462

GENERAL ADMINISTRATIVE DIVISION          )
           Re      ROBERT ANTHONY SMALL
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Mr I R Way, Member

Date7 September 2001
PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd) IR Way
Member
CATCHWORDS
MILITARY COMPENSATION – injury resulting in incapacity for work or impairment – whether applicant suffered an injury

Safety Rehabilitation and Compensation Act 1988 s 4, 14

Favelle Mort Limited v Murray (1976) 133 CLR 580
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
Lees v Comcare & Another (1999) 29 AAR 350

REASONS FOR DECISION

7 September 2001 Mr I R Way, Member

This is an application by Robert Anthony Small for review of a decision of the Department of Veterans' Affairs (Comcare) dated 9 May 2000, which on reconsideration affirmed a decision of a delegate of the Military Compensation and Rehabilitation Service denying liability to pay compensation in respect of the applicant's claimed bilateral shoulder condition.
The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T12) and a number of medical records (R1-R8), an Army Confidential Report on the applicant (R9), his record of service (R10), two written reports from Dr Fairbairn (R11 and R12), a written report from Mr Morgan (A1) and a written report from Dr Pentis (A2). The applicant and Mr Morgan gave oral evidence and medical evidence was given by telephone by Dr Pentis and Dr Fairbairn.
Issues
The issue before the Tribunal is whether or not the respondent is liable to pay compensation pursuant to Section 14 of the Safety Rehabilitation and Compensation Act 1988 ("the Act") in respect of an injury suffered by the applicant resulting in incapacity for work or impairment.
Applicant's Evidence
The Applicant was born on 30 July 1948 and joined the regular Army on 6 May 1969. After recruit training he served as an infantry rifleman with 6 RAR and 8 RAR in South Vietnam for 20 months from early 1970. On return to Australia he continued with 8 RAR for 12 months as a rifleman/assault pioneer. He then was posted to Singapore with 6 RAR still as an assault pioneer. On return to Australia he subsequently was posted as an instructor to 1 Recruit Training Battalion where he served for 2½ years.
The applicant said that in 1977 he had an accident to his right knee and was medically downgraded to Communications Zone Everywhere ("CZE"). As a result of this he moved to employment as a storeman/quartermaster in which capacity he spent some 15 years, finally being discharged from the Army medically unfit on 30 May 1999 in the rank of staff sergeant.
The applicant told the Tribunal that as a rifleman in SVN he was 5' 6½" tall, weighed 8½ stone and was required to carry heavy packs of 35-40lbs weight, jumping down 4 – 6 feet out of helicopters. He said all infantry men had bad shoulders and backs as a result of this type of activity, but no one complained. He said "you were looked down on if you complained, you went on with it, lived with it and did not let your mates down". The only treatment was taking aspros handed out by the Company medic.
It was the applicant's evidence that as an assault pioneer in Singapore he engaged in jungle warfare where he was required to operate drill breakers and chainsaws, build bridges and roads, lay mines and carry assault boats, all of which affected his shoulders. He said that as an instructor he had to undertake 20 km route marches every 4-6 weeks with recruits, carrying 28lb packs and a rifle/webbing weighing about 10 lbs. He said that this affected his shoulders, but as an instructor he had to set an example to his recruits and he put up with any pain. He said it was normal practice in the Army to hide injuries and that occupation health and safety was a byword in the Army. He said he would keep minor injuries to himself and not report them and that this explained why there were no medical records showing any injury or problems in his shoulders until 1994. The Tribunal notes that at T4/13 the RMO of 49 RQR on 18 January 1994 diagnosed tendonitis and noted the applicant complained of right supra scapula pain and crepitus with abduction for the past week and prescribed Feldene. At T4/14 Dr Mitchell, Radiologist, reported on 1 September 1994, that both shoulders were normally located, no bony abnormalities seen and at T4/15 an RAP report dated 20/6/1996 notes the applicant complaining of pain in right shoulder for the past month with no history of injury. Physiotherapy and analgesics were prescribed. At T4/16 specialist's notes record the applicant attending physiotherapy from 26/2/96 to 12/3/96 complaining of a 6 week history of right shoulder pain after playing basketball. The pain was also aggravated by lifting and by casting a fishing rod. In his evidence the applicant stated that he had been playing volleyball as part of normal daily PT/circuit training.
The applicant told the Tribunal that as a storeman/quartermaster much of his service had been with the Army Reserve where as a cadre staff member he was required to do a lot of heavy lifting, picking-up and returning stores used by his infantry unit on weekend bivouacs. He said that these activities also affected his shoulders. He described the stores as tables, chairs, tentage and equipment which had to be loaded and unloaded on to high backed trucks with the frequency of bivouacs being approximately once every four weeks. He estimated that he spent about 40% of his time on these type of duties.
The applicant said that he carried out battle fitness assessments and combat fitness assessment tests once every year and for the past five years of his service he was not required to carry a pack because of his medical classification. He told the Tribunal that he got through these tests.
He said his shoulder problem came to the fore while he was fishing in Western Australia and that was when he saw a doctor who diagnosed a rotator cuff problem. He said he had physiotherapy and did special exercises for 12–18 months which provided some relief but the pain in his shoulder was always there. He told the Tribunal he was told how to avoid activities that hurt his shoulders and that this helped. It was the applicant's evidence that his medical problems including shoulder/back problems became too much in the end and he was medically discharged on 30 May 1999 after 30 years and 25 days service.
In cross examination the applicant was taken to a number of regimental medical records covering the period 1976 to 1981 where the applicant had reported relatively minor medical problems including cold, sore throat, blocked nose, small graze on scalp, pain in lower left back and left leg, pinched nerve in left elbow, pain right side of chest, torn muscle, throbbing pain behind the right patella after strenuous bush work, paraesthesia and pain right forearm. It was put to the applicant that this did not present a picture of a man who hid his medical problems and the absence of any medical records until 1994 about shoulder pain showed that he had not suffered from such pain during his tour of South Vietnam and ongoing from that time. The applicant disagreed with this contention and said he had reported pain in his shoulder while he was serving in Vietnam and Singapore.
The Tribunal notes (Exhibit R10) that the applicant served as a storeman technical from February 1982 to July 1984, as a quartermaster sergeant from July 1984 to January 1999 and then as a supervisor platoon infantry operations from January 1999 prior to his discharge on 30 May 1999. The applicant's service as a storeman technical/quartermaster was principally with Army Reserve Infantry Units but also included approximately 3 years service with the Army Apprentices School (1986-1988). The Tribunal further notes that a storeman technical is responsible for managing the accounting, security and administration of unit equipment; and that a quartermaster sergeant is responsible for supervising and managing the accounting, security and administration of unit equipment, and that receipt and issue of equipment forms part of the duties of both jobs.
Medical Evidence
The Tribunal is mindful that the applicant in his claim for rehabilitation and compensation dated 13 April 1994 (T3), claimed "pain in L-Right Shoulder" and "loss of movement of both shoulders" stating he first noticed his shoulder problem in 1995 but that he related the problem to carrying heavy packs throughout his service and to work related heavy lifting or carrying.
The Tribunal notes that at T4 (12-13) there is a medical centre report dated 26 August 1994, of the applicant complaining of "cracking of shoulders; worse in p.m.". The applicant was diagnosed as suffering from tendonitis and feldene was prescribed by the RMO. X-rays were taken of both shoulders and on 1 September 1994 the radiologist reported "both shoulders as normally located and no bony abnormalities seen". The next medical record dated 20 February 1996 (T4/15) notes the applicant complaining of pain in right shoulder for the past month after playing basketball, with no history of injury. However, the applicant said the pain in his shoulders was aggravated by lifting and casting a fishing rod. On examination the applicant was diagnosed as suffering a "rotator cuff injury", with fenac and physiotherapy prescribed. It was recorded that the applicant attended physiotherapy between 26 February 1996 and 12 March 1996.
A history of burning pain in both scapular areas is recorded in a report from a physiotherapist who saw the applicant twice early in 1998 for lower back pain and arm/neck problems, "particularly troublesome lately whilst sitting at a computer". The physiotherapist stated "as of 20/5/98 he has not returned for review so hopefully he is managing OK" (T4/18).
On 6 April 1998, Dr Sweeney, Radiologist, reported on the applicant's shoulders as follows:
"Right Shoulder
The alignment and appearance of the gleno-humeral joint is normal. The sub-acromonial space is preserved and there is no evidence of calcific tendonitis. There is a small rounded spur arising from the inferior aspect of the outer end of the clevical but the acromio-clevicular joint otherwise appears normal. The acromion is type 2 in shape (smooth, curved under the surface).
Left Shoulder
The alignment and appearance of the gleno-humeral joint is normal. The sub-acromonial space is preserved and there is no evidence of calcific tendonitis. The acromion is type 2 in shape (smooth, curved under the surface) and there is no evidence of any subacromonial spurring. The acromioclevicular joint also appears normal."

Mr Becht, Rehabilitation Counsellor, examined the applicant on 22 April 1999 and noted "shoulder range reduced bilaterally, specifically abduction and elevation, both superaspinatus tendons are tender and impingement tests are positive".
The Tribunal is mindful that the applicant was discharged medically unfit, with one of the reasons for medical discharge being "bilateral shoulder injury" (T9/44).
Dr Pentis, Orthopaedic Surgeon, examined the applicant on 10 November 1999 and provided a written report dated 26 November 1999 (T8). He noted that the applicant was not on any medication, that X-rays had shown no major pathology and commented as follows:
"The gentleman has sustained injuries to his shoulders in his work activities and it appears to be combination of degeneration and mild rotator cuff syndrome.
They are not severe enough to warrant any major forms of management or any operative treatment and it appears as though he will be left with some weakness in the area, but nothing that will limit his activities to any great extent. He should be careful with the more strenuous and repetitive activities overhead."
In a further report dated 1 February 2001 (Exhibit A2), Dr Pentis, after perusing Dr Fairbairn's report of 2 October 2000 (R11), stated that the applicant's shoulder problem usually results from a combination of wear and tear of life plus incidents which may predispose or precipitate a rotator cuff injury. He opined:
"In his work activities, especially those which require lifting especially above shoulder level eg if he was man handling supplies as a storeman, he may experience problems and this could precipitate problems with the rotator cuff whether it was normal or degenerative at the time. Similarly sporting activities such as volley ball may cause a strain or an acute tear of the rotator cuff musculature in a certain position and could be a causative factor as well.
As mentioned, I believe this problems (sic) is a combination of wear and tear and more than likely an acute episode causing further problems on an already compromised shoulder. So it appears as though his work and recreational activities in the Army, that is PT and volley ball would and could be a cause in the rotator cuff problems that he is experiencing."

In his evidence by telephone, Dr Pentis agreed that tendonitis was part of a rotator cuff syndrome and that chronic tendonitis did not settle fully with time. He said that the applicant's shoulder condition could be described as a repetitive strain injury mainly related to his work activities as a storeman, the major problem being, lifting above shoulder level. In cross examination Dr Pentis said it was possible that a patient could suffer tendonitis in the absence of an injury because of underlying degeneration but most cases arose out of a patient doing something to aggravate the muscles in the region. Dr Pentis was asked to assume that the applicant suffered a discreet incident in 1994 causing a shoulder problem which resolved with treatment and a further shoulder problem in 1996 after playing volleyball which resolved in a few weeks with physiotherapy and that the applicant made no complaints about pain in his shoulders at any other time until shortly before his discharge. It was put to Dr Pentis that if these assumptions were correct and if the applicant had returned to full normal duties after each incident then it could be said that he had made a full recovery. Dr Pentis agreed that based on the assumptions made, it was possible that the applicant made a good recovery. However, he was still of the view that any long term problems would be as a result of aggravation of an underlying condition, not purely degenerative in nature.
Mr Morgan, Occupational Therapist, provided a written report (Exhibit A1) and gave oral evidence.
In his written report Mr Morgan said he had seen the applicant twice on 27 June 2001 and 2 July 2001 and that the applicant's presentation was one of chronic tendonitis with involvement of the supraspinatus muscles on both the right and left sides. He said:
"Prolonged exposure to duties which involved elevated arms precipitates fatigue in the supraspinatus muscle and a probable and therefore causal link exists between work duties, particularly those in stores, and current presentation. It is difficult to establish the nature of a pre-existing condition based on the information provided."

Mr Morgan based his opinion on tests he carried out on the applicant, his clinical examination of the applicant and the history of the duties given to him by the applicant, the last 15 years of his service as a storeman/quartermaster sergeant being most significant in Mr Morgan's opinion. He recorded the applicant's work duties during his initial period as a storeman as being constant physical heavy work with loading operations constantly in and out of trucks and shelves within a store, with lifting above shoulder height or stooped in tracks, aggravated by the shorter stature of the applicant. When the applicant moved to the Army Reserve, the work was described as predominantly the supply of goods to soldiers requiring the applicant to engage in repetitive physical loading in and out of trucks with much of the work falling upon the applicant.
In cross-examination, Counsel for the respondent put the same assumptions as outlined in paragraph 21 above to Mr Morgan. Mr Morgan agreed that if those assumptions were correct it was possible that the applicant had made a full recovery and that his ongoing shoulder condition could not be linked to his service in the Army.
In re-examination Mr Morgan said that he would not have assumed any of the facts as put forward by the respondent and that the assumptions as put to him did not fit into an overuse disorder, such as suffered by the applicant in this case.
Dr Fairbairn, Orthopaedic Surgeon, saw the applicant on 16 July 1999 and in his written reports (T7, Exhibit R11, R12) diagnosed chronic tendonitis in his shoulders which he believed likely to be permanent. He stated that the applicant's Army service probably was not the principal cause of the applicant's shoulder condition and that he probably would have contracted the problem if he had not been in the military. After reviewing the reports of Dr Pentis and Mr Morgan, Dr Fairbairn expressed the opinion that the applicant's shoulder condition is related to an intrinsic degenerative process due to ageing of tissues and possibly contributed to by anatomical factors such as the shape of his acromion. Dr Fairbairn said that he believed that military service, at most, would have contributed to his present condition in a minor way and that while working in stores with repetitive lifting would have been a factor in the etiology, he felt this would be only minimal.
In his evidence by telephone, Dr Fairbairn was asked to accept the same assumptions as outlined in paragraph 21 above. Given those assumptions were correct, Dr Fairbairn, in answer to the respondent, said that it was possible to have a full recovery and that previous incidents would not invariably lead to exacerbation of the underlying degeneration. He re-affirmed his view that the applicant's Army service had had a minimal effect on the applicant's shoulder condition and that the symptoms suffered by the applicant were just part of a degenerative process and that lifting things such as boxes simply brought the symptomatology to light rather than being the cause.
Dr Fairbairn confirmed his view that the applicant suffered a 10% impairment of both shoulders. With respect to the question as to whether or not tendonitis could be caused by repetitive strain, Dr Fairbairn said tendonitis is an intrinsic degenerative process within the tendon which can be aggravated by repetitive activity, whereas with an injury resulting in a tear of the tendon, there is a direct cause and, in fact, relationship. He said there is no difference between tendonitis and rotator cuff syndrome, but went on to say that you could get a rotator cuff tendonitis or chronic tendonitis, as opposed to an acute tear or acute tendonitis resulting from an injury to the rotator cuff. He said that if someone had a tear or some degeneration in a tendon, then an activity involving lifting arms above the shoulder would aggravate the condition, but that ongoing symptomatology would not be related to the event, but to the underlying problem within the rotator cuff.
Submissions
Counsel for the applicant submitted that there was no dispute between the medical witnesses that the applicant suffered from chronic tendonitis, that tendonitis as a term was interchangeable with rotator cuff syndrome and that the applicant's shoulder condition was permanent. It was further submitted that the only difficulty facing the Tribunal was determining the question of causation.
With respect to causation, it was submitted that during the latter half of the applicant's service, he was engaged in repetitive loading and unloading of trucks, in carrying out those duties he was disadvantaged by his height and that the Tribunal would be satisfied that the duties carried out by the applicant would have at least contributed to the aggravation of any underlying degenerative condition in the applicant's shoulders.

With respect to the question of the applicant recovering from the incidents affecting his shoulders in 1994 and 1996, it was submitted that there was no evidence to suggest that the applicant had made a complete recovery and that the applicant's failure to report other occasions when he suffered pain in his shoulders could be attributed to a military ethos of reluctance to report medical problems. It was submitted further that the Tribunal should accept the applicant as a credible witness who had answered the question put to him in a frank and forthright manner.
It was also submitted that the Tribunal should dismiss the documentary evidence about the applicant's employment code duties and that reliance should be placed on the applicant's evidence about the difficulties he faced as a pioneer, as an instructor and as a storeman/quartermaster.
With respect to the applicant's military service contributing to his shoulder condition, the Tribunal was referred to Favelle Mort Limited v Murray (1976) 133 CLR 580 where it was stated all that need be shown is that the employment contributes to the injury, not that it is the real, the effective or approximate cause of the injury.
In summary, it was submitted that all the medical evidence was agreed on the nature of the condition, that the condition is permanent; that limited treatment only is available, none of which would result in a cure; and that the best consensus of opinion is that the applicant suffers from a bilateral condition which is 10% under Table 9.1. With respect to causation, it was submitted that the Tribunal should accept the evidence of the applicant as to his duties, as to the onset of his condition and to his failure to report that condition; and the Tribunal should accept that there was a consensus that the applicant's military service was a contributing factor to his shoulder condition.
Further, it was submitted that based on the medical evidence and the evidence of the applicant, that when he developed his shoulder condition he was put back into the same workplace, that the condition continued, that the condition was exacerbated and he is now left with a chronic condition for which he should be compensated.
In submissions for the respondent it was agreed that the issue before the Tribunal is whether or not the applicant's Army service materially contributed to his shoulder condition.
The Tribunal was referred to Treloar v Australian Telecommunications Commission (1990) 97 ALR 321. In that matter the Full Federal Court was dealing with the Compensation (Commonwealth Government Employees) Act 1971. Section 29 of that Act is a similar provision to the definition of "injury" in section 4(1) of the Act. In relation to section 29 the Court said, at 328:
"…the section is not brought into play unless it is established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture."

It was submitted that where the condition of tendonitis can be a naturally occurring age related degenerative condition, cogent evidence is required to link the condition to the applicant's employment.
Based on the applicant's limited complaints of shoulder problems, his habit of reporting even minor symptoms, his acceptance of quartermaster duties without complaint or request for transfer and that he was able to continue with his normal quartermaster duties after the shoulder incidents in 1994 and 1996, it was submitted that the factual evidence showed that the applicant had only suffered two incidents affecting his shoulders in 1994 and 1996, and that his shoulder condition as a result of those two incidents had completely resolved within a short period of time after the incidents and that he had been able to return to full duties.
It was submitted that if the Tribunal was to find in favour of the respondent's assumed facts (as set out in paragraph 21 above), then the conformity in the medical opinions of all of the medical witnesses called supported the respondent's contention that the applicant's condition was a result of naturally occurring age related degeneration.
Consideration
There is no dispute between the parties that the applicant suffers chronic tendonitis in both shoulders and the Tribunal so finds. It is also common ground, and the Tribunal accepts, that the applicant's chronic tendonitis is akin to a rotator cuff syndrome.
The reviewable decision before the Tribunal is that the Commonwealth, pursuant to Section 14 of the Act, is not liable to pay compensation to the applicant for incapacity or impairment. The issue before the Tribunal is of short compass, namely, whether the applicant's employment with the Armed Forces contributed to the applicant's shoulder condition.
In the evidence and submissions for the applicant, the extent of the applicant's permanent impairment, referrable to his shoulder condition, was canvassed. As noted by the Tribunal at the hearing, the issue of the extent of the applicant's permanent impairment has not been addressed by the respondent as part of its consideration and determination of the reviewable decision. In Lees v Comcare & Another (1999) 29 AAR 350, it was held that the powers of the Tribunal did not, on an application to review a decision under Section 14 of the Act, extend to allowing it to reach a decision as to any entitlement under Section 24. Hence, the issue of degree of permanent impairment is not before this Tribunal.
As is often the case in matters such as this, there is a conflict in the medical evidence before the Tribunal. It is the opinion of Dr Pentis and Mr Morgan that the applicant's employment with the Commonwealth contributed materially to his shoulder condition, whereas for the respondent, Dr Fairbairn is of the opinion that any service-related contribution is minimal and not a contributing cause of the applicant's chronic tendonitis.
In its consideration of the weight to be given to the various medical opinions, the Tribunal in the first instance has turned its attention to the nature and extent of the applicant's duties, principally during the last 15 years of service as a storeman/quartermaster. The Tribunal is not satisfied that the duties requiring the applicant to carry and lift stores and equipment was such as to be repetitious, extensive or particularly strenuous. In arriving at this conclusion, the Tribunal has taken into account the wide range of duties the Army requires a storeman/quartermaster to undertake as set out in Exhibit R10, the limited frequency of bush exercises requiring stores and equipment support, the type of stores and equipment required by an Infantry Unit, as described by the applicant, that other personnel were available to the applicant for assistance in lifting, loading and unloading stores and equipment during bush exercises and, to a lesser degree, prior to and after bush exercises and that the applicant served as a quartermaster for 3 years with the Army Apprentices School. The Tribunal rejects the applicant's submission that it should not take account of the description of the duties of the storeman/quartermaster as set out in Exhibit R10. The Tribunal agrees with the respondent that Exhibit R10 is not a hearsay document but is an official Army statement which sets out the duties that the Army expects a storeman/quartermaster to undertake.
The Tribunal is mindful that the opinions of Dr Pentis and Mr Morgan rely, to a large extent, on the history taken from the applicant of repetitious, heavy lifting above shoulder height during the last 15 years of his service. The Tribunal is of the view that the above finding lessens the weight to be accorded to the opinions of Dr Pentis and Mr Morgan.
After consideration of all of the medical evidence before it, and in the light of the above finding, the Tribunal is satisfied that the applicant suffered only two work-related incidents which affected his shoulder condition, namely, the incident in August 1994 and the incident in February 1996. In making this finding, the Tribunal accepts the respondent's contention that the applicant was a person who consistently reported health-related problems, whether they be major or minor, and that the medical documents before the Tribunal were reasonably comprehensive but recorded no complaints from the applicant with respect to his shoulders, apart from the two incidents mentioned above and just prior to discharge.
The Tribunal is mindful that the medical documentation indicates that the effects of each of the two reported incidents relating to the applicant's shoulders resolved quickly and that the applicant was able to return to normal duties shortly after each incident.
The Tribunal is satisfied that the applicant suffered two work-related incidents that affected his shoulders temporarily, that any affects attributed to the work-related incidents resolved quickly, and that the applicant was able to return to normal duties shortly after each incident.
Accepting these findings, the Tribunal is satisfied that both Dr Pentis and Mr Morgan, albeit reluctantly, were prepared to accept that the applicant would have made a good recovery with respect to his shoulder condition and as such their views would be in conformity with the view put forward by Dr Fairbairn. The Tribunal accepts Dr Fairbairn's assessment of the applicant's condition and finds that any work-related contribution to the applicant's shoulder condition is de minimis and following Treloar's case the applicant's service did not in fact, and in truth, contribute to the condition complained of.
The question of the applicant's poor posture was raised at the hearing. The Tribunal is mindful that Dr Pentis and Mr Morgan expressed the view that postural problems would have had no effect on the applicant's chronic tendonitis, whereas Dr Fairbairn thought it could. There is insufficient evidence before the Tribunal to enable it to arrive at a conclusion about this matter. However, the Tribunal is satisfied that if it concluded that the opinions of Dr Pentis and Mr Morgan were correct, such a finding would not be of assistance to the applicant.
The Tribunal is satisfied that the applicant has not suffered an injury pursuant to Section 4 of the Act, and therefore, the Tribunal affirms the decision under review.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member.
Signed:         Robert Hayes
  Associate
Dates of Hearing  4 June 2001, 24 July 2001
Date of Decision  7 September 2001
Counsel for the Applicant        Mr R Hume
Solicitor for the Applicant         Messrs D'Arcys
Counsel for the Respondent    Miss E Ford
Solicitor for the Respondent    Messrs Dibbs Barker Gosling