Smith and Comcare
[2006] AATA 791
•11 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 791
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/515
GENERAL ADMINISTRATIVE DIVISION ) Re MARK SMITH Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member Robin Hunt
Dr P Lynch, Member
Date11 September 2006
PlaceSydney
Decision The tribunal affirms the reviewable decision. [SGD]
Ms R Hunt
Senior Member
CATCHWORDS
WORKERS’ COMPENSATION – Safety Rehabilitation and Compensation Act – sprain of shoulder and upper arm – whether applicant entitled to compensation for medical expenses, permanent impairment and non-economic loss – no continuing workplace injury - decision affirmed.
Safety, Rehabilitation and Compensation Act 1988; sections 4(1), 16, 24 and 27
Telstra v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
11 September 2006 Senior Member Robin Hunt
Dr P Lynch, MemberSUMMARY
1. Mr Mark Smith, the applicant, applied to the tribunal for review of a decision made by an independent review officer (IRO), which affirmed a Comcare determination adverse to his claims for compensation. Mr Smith sought compensation for medical treatment, permanent impairment and non-economic loss in relation to a “sprain of the shoulder and upper arm (bilateral)”. He also originally sought weekly incapacity payments, however, he indicated at the tribunal hearing that he was no longer pursuing this aspect of his claim. We have found that Mr Smith has not established that there are any continuing symptoms related to the injury of his neck and shoulders. It follows that we have affirmed the reviewable decision. Our reasons are set out below.
BACKGROUND
2. Mr Smith was born on 6 September 1961 and is aged 45. He commenced working as a storeman for the Department of Defence in 1996 at the Defence National Storage and Distribution Centre at Moorebank. Mr Smith subsequently lodged a claim with Comcare and, on 13 February 2001, it accepted liability in respect to his claim for “sprain of shoulder and upper arm (bilateral)”, including payment of his reasonable medical expenses. Mr Smith’s employment was terminated in October 2003.
3. On 1 April 2005, an officer made a reviewable decision regarding the claim for medical expenses. He noted that Comcare had accepted liability for “sprain of shoulder and upper arm (bilateral)” but had never accepted liability for Mr Smith’s neck problems. The officer also had doubts about Mr Smith’s claim in respect of the right shoulder and rejected this claim. The officer observed that medical evidence established the injury to Mr Smith’s shoulders and, in particular, his left shoulder, but was inconsistent about any neck sprain. The officer was not satisfied that the symptoms which Mr Smith was currently experiencing related to the workplace lifting accident. Rather, the officer found the shoulder symptoms were due to “mild bilateral degenerative pathology” and that therefore, Mr Smith was not entitled to compensation for medical expenses as they did not result from his injury. The officer also found that, because Mr Smith’s symptoms did not relate to the work injury, he was not entitled to compensation for incapacity as a result of that injury nor was he entitled to any permanent incapacity flowing from the injury. The officer affirmed the negative determinations of 17 December 2004 and 28 February 2005.
ISSUE
4. The overall issue for the tribunal was whether, as at 1 April 2005, the date of the reviewable decision, Mr Smith was entitled to compensation under sections 16, 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect to any injury suffered on 10 January 2001. Mr Smith claimed compensation for whole person impairment to the extent that he was:
(i)unable to perform overhead activities for both shoulders because of his left shoulder injury and chronic pain of both shoulders; and
(ii)not fit for activities requiring repetitive bending or twisting movement of his neck.
5. The first question was whether compensation was payable pursuant to s 16 for medical expenses. The next question was whether compensation for permanent impairment was payable pursuant to s 24, the consequential question being whether there was liability to pay compensation for non-economic loss pursuant to s 27 of the Act, liability under s 24 being a condition precedent to liability to pay compensation under s 27.
CONSIDERATION
Relevant Legislation
6. Legislation relevant to the application for review includes various provisions in the Safety, Rehabilitation and Compensation Act 1988 which came into effect on 1 December 1988. Under s 4(1), the terms “injury” and “disease” are defined:
7. Section 16 reads:
16.(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
8. Section 24 reads, in part:
24.(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.
…
9. Section 27 reads, in part:
(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.
…
Mr Smith’s evidence
10. Mr Smith gave oral evidence to the tribunal. He told the tribunal that, on 10 January 2001, while working at Moorebank, he attempted to lift a hydraulic ram weighing approximately 30 kilograms. He immediately felt pain in his neck radiating to the thoracic spine and into both shoulders. He reported this incident to his employer and, later that day, attended his local medical practitioner who prescribed physiotherapy and analgesic and anti-inflammatory medication.
11. Mr Smith said the ram had been in the middle of a doorway. He picked it up, carried it a short distance and placed it on a rack. It was while placing it on the rack that he felt pain across his shoulders and neck. He gave evidence to the effect that the pain in his neck radiated to the thoracic spine and into both shoulders. He said that a fellow employee, who witnessed the incident, immediately reported it to his supervisor. Mr Smith also filled in the necessary claim form, describing the injury as “sprained shoulder muscles”. He went to the Ingleburn Medical Centre for treatment and later his own family doctor, Dr Roslyn Suefong. She referred him to Dr Chandra Dave, orthopaedic surgeon, and Dr Des Bokor, an orthopaedic surgeon specialising in shoulder and elbow surgery. Dr Suefong later sold her medical practice to Dr Giurguis, who continued to treat Mr Smith. Mr Smith continued working on light duties until his employment was terminated in October 2003.
12. Mr Smith told the tribunal he had ongoing physiotherapy in 2001 for his restricted movement, primarily in his left hand and shoulder, and also his right shoulder and neck. He continued with physiotherapy for as long as he could afford it after further compensation was denied, on 1 January 2002. At this time, six months after the accident, he said his right arm had improved and was definitely better than his left. In this connection, he recalled an incident at a picnic, when he was asked by an elderly couple if he would remove the lid of a jar of pickles and his embarrassment when he could not get the lid off. He said he was right-handed and used his right arm more to compensate for difficulties with his left, causing the right to become sorer. He said he was using painkillers and had difficulty sleeping, tying his shoes and shaving because of the pain in his arms and neck. He had found it difficult to dress himself because he could not lift his arms above his head. He could not do up his buttons and there were periods when his wife had to assist him.
13. After his dismissal, Mr Smith was out of work for some weeks before finding a warehousing job. The new job was different from his defence job in that he was able to use his knowledge and avoid heavy lifting. However, the new job was stressful and he was in a lot of pain, particularly in his left shoulder, and he suffered migraines. He had occasionally suffered migraines before his injury but they increased in frequency after the injury. In July 2005, he took up another position as an assessor in the area of warehouse logistics. This position involved no physical labour.
14. Mr Smith gave further evidence that he still suffered pain intermittently, that is, about every two or three weeks. Cold brought on pain so he had to wear a jumper on windy days. He said bad periods generally lasted for a couple of weeks and then he took a further couple of weeks to recover. Dr Giurguis, his current general practitioner, prescribed pain killers during these bad periods. He also had ultrasound testing at the surgery.
15. When questioned about his present medical condition, Mr Smith said his left arm was not 100 per cent, still sore and that some things never go away. He said he continued to have problems picking up objects, for example, a coffee cup. His grip was poor. The strength in both his arms was diminished and the movement in his neck was restricted. He said he tended to slouch now and had headaches and backache. For treatment, he said he saw Caroline Knight, physiotherapist, Dr Suefong and now Dr Giurguis. He also saw Dr Wallace, through his solicitor, and Dr Preston on behalf of Comcare.
16. In cross examination, Mr Smith was asked about his previous work history. When asked about Dr Burke’s note that he had worked as a builders’ labourer for seven years, Mr Smith said he had been a labourer when he first left high school but he could not remember for how long. He denied that he had undertaken any heavy physical work or that his cricket or archery was anything more than sport at high school and just “mucking around with the kids”. He added he had played football for four or five years. When questioned about any previous neck injury, he said he had no significant injury before January 2001, but then recalled a minor injury to his right shoulder when someone fell on him and he received ultrasound treatment. He denied further incidents.
17. It was then put to Mr Smith that he had presented to Dr Suefong on 19 June 2000 with a left shoulder supraspinatus tear and that this was before the workplace incident. He said that the doctor’s notes to this effect were wrong, he had never had another injury to his left shoulder and he thought the injury actually involved his right shoulder. In any case, it was not a significant injury. He had obtained treatment in the form of heat through ultrasound. To the best of his recollection, he had not told any specialist about any injury to either shoulder injury prior to January 2001. He further said the incident in June 2000 when someone fell over him had not caused any current shoulder injury.
18. When cross examined about the termination of his employment, Mr Smith agreed this occurred after his conviction in the Local Court when he pleaded guilty to tampering with a doctor’s medical certificate in relation to his claim for permanent impairment. Mr Smith admitted he had tampered with a medical certificate provided by Dr Dave. He gave evidence he had altered the certificate to indicate the answer to the question, whether the injury had settled, was “yes” rather than the doctor’s conclusion which was “no”. Mr Smith said he had thought this would bring an end to the matter. He had been suffering depression and had been seeing a psychologist for quite a few months. He said he had just wanted to get on with his life. He acknowledged he knew that he would not receive any compensation unless the injury had settled. He denied, however, that he was prepared to make false statements to bring about results that he wanted and said he made “one slip of judgment, one slip”. He denied he was exaggerating the extent of restriction in movement of his shoulders or his upper limbs. His counsel submitted Mr Smith was a witness of truth, despite the previous lapse.
19. When asked about the medical examination conducted by Dr Burke and the doctor’s noting no observable inability to grasp or hold things and assessment of his hand function as strong, Mr Smith agreed he had no difficulty on that day. He stated, however, there were intermittent times when he did have problems and that the problem with his fingers was always present.
20. When further questioned about the comments of Dr Crocker in respect of his consultations, on 15 October 2001 and 17 October 2001, when the doctor recorded his having a “near normal range of movement left and right”, Mr Smith said he was “probably between 12 ½ and 15 per cent … short of normal … I guess I know what is normal for me and what is not”. He disagreed with Dr Crocker’s notes, made on 24 February 2002, 27 May 2002 and 6 September 2002, that Mr Smith had a normal range of neck movement and that the range of movement in his shoulders was “essentially unrestricted”. He disagreed with the doctor’s findings that there was no diminished power in his shoulder joints.
21. Mr Smith conceded that his left shoulder was certainly better than in 2001 but said his right shoulder was deteriorating. When asked to explain, he said his right shoulder was not as good as last year but was better than with the original injury. When asked about his physique, he said that he weighed 130 kilograms at the time of the hearing, his height being 185 centimetres. His weight had increased from approximately 115-120 kilograms in 1999 to as much as 140 kilograms. He had weighed around 120 kilograms when he was young and aged about 23 and playing football. He did not accept that he was now obese or significantly obese, but said he would call himself “overweight”. He said that he used to be fairly fit and that it was a medical fact that muscle is heavier than fat. He accepted that his neck movements were partly restricted because of his own physique. The tribunal did not have other evidence before it of Mr Smith’s actual weight but was able to make its own visual observation that Mr Smith was carrying a great deal of weight.
22. When asked if investigations were made in November 2003 involving an x-ray and ultrasound of his right shoulder, Mr Smith said this was possible. He also said it was possible that, when he saw Dr Breit, orthopaedic surgeon, in December 2003, he had a full range of movement in his right and left shoulder. Mr Smith acknowledged it was possible that Dr Burke in November 2004 had asked him questions in relation to the treatment of his shoulders. Further, it was possible he had said to Dr Burke that he had mentioned his shoulder to Dr Giurguis only “in passing” and that it had not been his reason for visiting Dr Giurguis. He stated that he did receive treatment from Dr Giurguis, clarifying that he meant Dr Mervat Giurguis, the wife of Dr Michael Giurguis, whom he had also consulted previously. He confirmed that he only saw Dr Bopur once in order to get an opinion and not for further treatment. He gave evidence to the effect that he had not submitted to surgery because, after speaking to Dr Dave and to Dr Bopur, he had the impression there was a good chance of tearing his shoulder again and of surgery not improving matters. He added that Dr Bopur had also explained dangers associated with anaesthesia. He would have continued to consult a specialist if he thought they could do anything further for him.
THE MEDICAL EVIDENCE
23. A number of medical reports were presented to the tribunal including those of Dr Wallace, Dr Burke, Dr Crocker, Dr Preston, Dr Dave, Dr Breit and psychiatric reports. Drs Wallace and Burke gave oral evidence. Dr Michael Guirguis’s clinical notes and those of the practice including notes by Dr Suefong concerning Mr Smith were also in evidence. The conclusions reached by the doctors who have treated or examined Mr Smith vary. We have set out below some points distilled from the medical evidence and our conclusions drawn from these and the evidence before us.
dr wallace
24. Dr Wallace, a general orthopaedic surgeon, told the tribunal he consulted about, but did not operate on, shoulders. Dr Wallace acknowledged that Dr Bokor was an expert on shoulders. Dr Burke’s gave evidence that Mr Smith’s condition was not uncommon in a man of Mr Smith’s age. Dr Wallace rejected this as unlikely. Dr Wallace gave evidence that he held the opinion that it was very rare to see this kind of condition in a person under the age of 50 years. Dr Wallace gave evidence that not only was it very rare but this sort of condition in a person under the age of 50 years was most probably as a result of a specific incident of trauma.
25. Dr Wallace extracted a brief history from Mr Smith in his report. Dr Wallace obtained no history of Mr Smith’s previous employment. It became apparent during his giving of oral evidence that he had not considered fluctuating symptoms and the possibility of degenerative joint disorder. He did not refer to any intermittent nature of Mr Smith’s symptoms.
26. Dr Wallace further wrote a brief observation on 8 December 2005 when his attention was drawn to a note in the report of Dr Michael Guirgis GP. Dr Giurguis’s note concerned Mr Smith’s attendance after the incident in June 2000 when someone fell over him. Dr Wallace wrote that Mr Smith’s attendance on 19 June 2000 to see a Dr Becker for right shoulder pain after this incident and the treatment with ultrasound massage would not cause him to change his opinion about the cause of Mr Smith’s problems.
27. Dr Wallace conceded that Mr Smith may have not tried his best during his examination to demonstrate his maximum range of movement. We further note that Dr Wallace gave little consideration to the effect of Mr Smith’s obesity and particularly the postural effects this could have on his neck and shoulder leading to neck and shoulder pain. Dr Wallace gave evidence he wouldn’t consider the range of movement noted by other doctors as an indication of symptoms. Overall, therefore, we found that Dr Wallace’s evidence was of limited help to the tribunal in determining the significance and cause of Mr Smith’s symptoms.
28. Dr Wallace’s assessment of 27% impairment in our view does not sit well with the body of evidence which indicates a near normal range of shoulder movements. As well, given his concession that Mr Smith may not have tried to his full capacity during his assessment of range of movement, we consider Dr Wallace’s assessment probably exaggerates Mr Smith’s degree of disability.
dr burke
29. Dr Burke is a general surgeon with some orthopaedic training. In our view, his curriculum vitae, which is before the tribunal, demonstrates that he is well qualified in medico-legal and workers compensation matters. Dr Burke provided a series of reports, including his principal report dated 22 November 2004, and a report dated 7 March 2006. On page 6 at para 3 of the 2004 report, the doctor explains that, had there been no previous shoulder problem, he would have concluded that the small tear at the supraspinatus tendon could have resulted from lifting a 45 kg machine. The doctor relied upon a history provided to him by Mr Smith that, in some respects, contradicts the history Mr Smith relied on before the tribunal. Dr Burke reports that Mr Smith suffered the supraspinatus tear to the left shoulder in June 2000. He noted that Mr Smith told him that he suffered an accident on 11 January 2000 whereas the Comcare file clearly indicated on all documents that the workplace accident occurred in January 2001. However, Mr Smith gave an emphatic oral history that the supraspinatus tear occurred as a consequence of the compensable injury in 2001. In his 2006 report, Dr Burke expressed the view that Mr Smith’s injury in 2001 would have resolved in a few weeks.
30. Dr Burke took a more detailed history than some of the other doctors who have seen Mr Smith. Additional items reported by Dr Burke and not mentioned in other reports before us include Mr Smith’s approximately 7 years employment as a builder’s labourer and that Mr Smith became depressed around August 2001, with ongoing symptoms. Mr Smith told Dr Burke in 2004 that his main problem was his right shoulder. Mr Smith’s current employment requires no lifting. Dr Burke described Mr Smith as grossly obese (+ 135 kilograms). His examination led to observation that Mr Smith had postural problems, including:
· Upper thoracic kyphosis (hump back)
· Neck held in forward position.
· Range of movement in neck and spine were good except for lateral flexion of neck (1/3 normal) and rotation 2/3 normal due to obesity and hunched dorsal spine.
· Lumbar spine - could touch mid tibia with finger tips.
· Shoulders showed the same contour on both sides, that is, abduction and flexion of 160° (limited by obesity), extension of 40°, and all other measures near normal.
31. Dr Burke detected some variation between non-formal and formal examination forming the view that Mr Smith was not trying fully. Dr Burke diagnosed:
·Early degenerative disease both shoulders
·Kyphosis
·Gross obesity
32. Further, Dr Burke noted Mr Smith’s prolonged physiotherapy and cortisone injections recommended by Dr Briet. Dr Burke suggested Mr Smith be encouraged to exercise regularly and concluded that he could work as a storeman with a weight lifting restriction up to 15 kilograms to avoid re-injury. Dr Burke considered Mr Smith’s condition was stable but that he had degenerative disease no longer related to his last documented work injury on 10 January 2001. He opined that the effects of his work-related injury had ceased and his progressive degenerative disease was producing exacerbations by re-injury which were not work-related. This degenerative disease would slowly get worse with time.
33. Dr Burke found no evidence of current chronic pain syndrome or somatic disease as at November 2004. Dr Burke’s assessment of Mr Smith’s work-related disability was nil percent as any contribution of his injury on 10 January 2001 had long since ceased. Dr Burke agreed that the placement of restrictions upon a man exhibiting Mr Smith’s symptoms was appropriate. However, a loss of function in the shoulders does not lead to the conclusion that this is attributable to the injury rather than the reasons for degeneration Dr Burke discerned.
Dr Giurguis
34. Dr Giurguis provided a report dated 26 November 2005 and a subsequent report of 22 December 2005. Dr Giuguis took a history which did not accord with that taken by Dr Burke but did not give oral evidence to the tribunal. His records showed some confusion as to which shoulder was examined at one point. Dr Guirguis altered his original medical report to correct an error. Dr Guirguis wrote on 26 November 2005 that he had reviewed his notes and found that Mr Smith saw Dr Becker about his right shoulder when a person fell over him. He did not mention the date of this incident, which occurred in June 2000 according to other evidence before the tribunal. He explained that the computer records of the patient written up by other doctors did not match the written patient notes but did not provide an exact date concerning the right shoulder injury or further details as to what he discovered in this regard. Dr Guirguis added that Dr Suefong saw Mr Smith on 10 January 2001 about his left shoulder after the workplace incident.
comparison between evidence of dr guirguis and dr burke
35. Under cross-examination, the more recent reports of Dr Giurguis were put to Dr Burke for comment. Dr Giuguis’ noted a history which did not accord with that taken by Dr Burke. Nonetheless, the opinion of Dr Burke does not depend upon whether it was one shoulder or the other that was the subject of earlier attendance on that general practice. Dr Burke, under cross-examination was loath to accept the history taken by Dr Giurguis in place of his own records. Dr Burke conceded that Mr Smith’s injury could have resulted in the supraspinatus tear disclosed on the ultrasound. He also conceded that, if it had been a major tear Mr Smith may have been prevented from resuming his work. We note that, to the extent that Mr Smith returned to work, performing paperwork only, the tear may have been sufficiently major to prevent his returning to heavy lifting work.
dr crocker
36. Dr Crocker, similarly to Dr Burke, found in his report, dated 15 October 2001, that Mr Smith’s “grip strength was reasonable bilaterally” No loss of digital dexterity was evident to the doctors who assisted the tribunal. Dr Burke found no evidence at examination on 22 November 2004 that Mr Smith was unable to grasp or hold things and, in fact, found strong grip and no difficulty with digital dexterity. Yet, on 31 October 2001, only a couple of weeks later, Mr Smith gave further evidence that he told a family therapist that he had a complete loss of strength in his left hand. This evidence in our view supports Mr Smith’s claim that his symptoms are intermittent.
37. Dr Crocker also observed near normal range of movement in the left and right shoulder by 15 October 2001, an observation that Mr Smith at one point did not dispute. Later, however, Mr Smith did dispute having normal range and suggested to Dr Lynch that he thought that his shoulder movement was “short of normal”, that is, “between 12½ - 15% normal”, leading Dr Lynch to comment on a difference between his opinion and what the doctors had said. It was then put to Mr Smith that he would not have undertaken any study, such as a doctor might, as to what is a normal range of movement of the shoulder. Mr Smith responded “no, I guess I know what is normal for me and what is not normal for me”. In this context, it is important to bear in mind that the Comcare Guide to the Assessment of the Degree of Permanent Impairment focuses upon comparison with a normal, healthy person. Mr Smith later acknowledged that he could not compare himself with others in this respect. When Dr Croker saw Mr Smith again on 6 September 2002, he found the range of movement of his shoulders essentially unrestricted and found no suggestion of discomfort when testing power against resistance to either shoulder joint. In Dr Crocker’s opinion, Mr Smith demonstrated normal range of movement of the neck, a matter which Mr Smith did not recall.
further medical evidence and conclusions
38. We are satisfied from the material before us that Mr Smith, on 10 January 2001, suffered an injury at work to both shoulders. The injury to his left shoulder was greater than to the right. He was so injured while lifting a heavy object at work, which was not characteristic of his usual work, largely being paper work. This injury occurred at 1 pm and Mr Smith was able to stay at work for the afternoon. He attended a medical clinic after work. A diagnosis of muscle strain to both shoulders was made and anti-inflammatory analgesics and physiotherapy were prescribed. Mr Smith returned the next day and underwent physiotherapy. This suggests the injury was not a major trauma.
39. Mr Smith was able to continue to work immediately after his injury because his job involved paperwork and generally didn’t require heavy lifting. Initial treatment was physiotherapy and anti-inflammatory analgesics. Both shoulders were responding to treatment but, after about 2 months, because of ongoing pain above the shoulder, Mr Smith sought further treatment from a general practitioner. The condition in Mr Smith’s right shoulder and neck responded to physiotherapy more than his left shoulder did. Then, Dr Suefong ordered an ultrasound. The ultrasound showed a tear in the left supraspinatus tendon. Dr Suefong then referred Mr Smith to Dr Dave, who ordered an MRI scan. The scan gave definitive evidence of the tear in a tendon. As his condition was nevertheless improving, Mr Smith’s doctors continued conservative treatment. Mr Smith’s left shoulder was more seriously injured than the right, as is evident from the initial symptoms, the subsequent MRI scan, showing a small supraspinatus tear, and the clinical progress. This assessment accords with Dr Bokor’s finding a reasonable range of movement in both shoulders but some impingement of the supraspinatus tendon as it slides through the narrow bony canal at the tip of the shoulder. This finding indicates the injured tendon had not completely resolved in November 2001, and was still swollen and producing pain. Dr Dave considered Mr Smith’s left shoulder was improving with current treatment and pending review didn’t require surgical intervention. This conclusion also suggests a more significant injury to the left shoulder than to the right.
40. Documents before the tribunal show that Mr Smith then became depressed around August 2001, with ongoing symptoms. Mr Smith attended a centre about his mental state and subsequently asked Dr Suefong for a referral. His depression was diagnosed by Dr Suefong and she enabled psychological treatment after Mr Smith asked her for the referral after some delay. As at November 2004, Mr Smith told Dr Burke he was no longer depressed. He gave similar evidence to the tribunal that he was no longer depressed.
41. It is not only medico-legal specialists who have found full movement of Mr Smith’s shoulders. We note the report of Dr Breit, for example, dated 3 December 2003. Even on 15 November 2001, Dr Bokor found fairly reasonable range of motion around the shoulders and good strength, despite some impingement signs and mild pain on the cuff load at that time. Also, we note the report of Dr Crocker on 15 October 2001. Dr Preston also noted this as well as Dr Burke as set out above. Dr Crocker noted a discrepancy between Mr Smith’s complaint of diminished strength in the left upper limb and “nil reported discomfort when testing power against resistance at either shoulder joint”. Mr Smith accepted that the doctors’ observations may have been correct due to the intermittent nature of his problems.
42. Mr Smith alleged he experienced difficulty with grip, but said “the issue is intermittent. It’s never been a constant thing”. Dr Burke, upon testing of Mr Smith’s grip strength found no evidence of his being unable to grasp or hold things and found he had a strong grip. Mr Smith attempted to deal with that in cross-examination by saying that it was not “strong in comparison to what it used to be”. Mr Smith answered “that’s correct” to the proposition that he was unable to say how his range of movement compares with other people and also agreed that he was unable to say how his grip, or his strength or his power compared with other people, repeating “I can only compare myself to myself”. We accept that Mr Smith may have been experiencing a good day when Dr Burke examined him but does have intermittent problems and that he may have been stronger in his youth.
43. Another important factor in Mr Smith’s difficulties is that he is obese. He describes himself as “about 130 [kg] at the moment” and his height as 185 cm. He estimated his previous weight as between 115 and 120 kg. Mr Smith also said his weight might have gone up to 140 kg at some stage over the past few years. Dr Burke recommended an exercise program and weight reduction but we have no evidence before us that Mr Smith took this advice with the consequence that is unclear what improvement might result.
44. Comparing his shoulders now with their condition back in 2001, Mr Smith said “both shoulders are better” and that his left shoulder was also better now than it was in 2002 or 2003, although then he said that the right shoulder “seems to be deteriorating”. If Mr Smith is correct in this perception, it may be more consistent with a degenerative process as the medical evidence does not otherwise suggest his workplace injury would lead, at this late stage, to further deterioration. So too, Mr Smith’s evidence of symptoms being worse with cold or windy weather conditions. Dr Burke considered the waxing and waning of symptoms supported opinion diagnosis of early DJD and this is supported by Mr Smith’s evidence that his symptoms are worse in cold weather.
45. Subsequent orthopaedic reviews showed steady physical improvement but incomplete recovery and in November 2001, Mr Smith was reviewed by Dr Bokor, an expert shoulder specialist, who found some supraspinatus impingement in the left shoulder, some tendonitis in the right shoulder but, more significantly, irritation of cervico-brachial nerves. Specific physiotherapy was given for this factor in Mr Smith’s symptoms.
46. Dr Dave provided reports dated 21 May 2001 and 2 July 2001. Within weeks, Mr Smith was reviewed by Dr Dave, who observed the left shoulder was dramatically worse, which couldn’t be explained by his supraspinatus tendon injury alone. Dr Dave suspected a possible neurological process was involved but this was never investigated according to the records before us. However, brief records of Dr Dave, dated during February 2002, and of Dr Crocker, indicate that any 2001 injury had largely resolved, although the tendon was still swollen as noted above, and Mr Smith was well on the way to recovery. However, only about 2 weeks later, Mr Smith’s left shoulder was so bad Dr Dave couldn’t examine him because it was so painful. Then, Mr Smith was better again in February 2002. In light of the fact that Mr Smith has reported no further injury, the intermittent nature of his symptoms looked like degeneration to Dr Burke.
47. There is evidence to suggest Mr. Smith’s clinical progress was adversely affected by significant psychological problems from May 2001 and well into early and even mid 2002. Mr Smith told the tribunal of significant family and social pressures, which impacted on his recovery from his injury. Documents before the tribunal suggest some workplace disharmony with claims of victimisation and harassment. The impending prosecution proceedings were also causing Mr Smith concern. As well, Mr Smith was dissatisfied with the administration of his rehabilitation process. Against this background, the expert medical evidence was not conclusive. However, on balance, Dr Burke’s opinion that musculo-ligamentous injuries generally recover within months is borne out in that Mr Smith main symptom when he saw Dr Burke was not his left shoulder but his right.
48. Dr Burke considered that because Mr Smith was able to continue work immediately after the injury and thereafter, this indicated the injury was not a major one. This is supported by Dr Bokor’s assessment of the post-injury MRI scan as showing a very small tear. Dr Burke, when he saw Mr Smith’s in 2004, observed his current symptoms could not be explained by his musculo-ligamentous injury alone. Dr Burke found only minor restrictions of Mr Smith’s range of movement in both shoulders and that this was due to degenerative joint disease and Mr Smith’s obesity and as such was unlikely to be related to a musculo-ligamentous injury 3 years earlier. As Mr Smith told him that he no longer had depression, Dr Burke found no evidence of chronic pain syndrome. However, we note there is evidence to suggest Mr Smith had significant psychological problems during an indefinite period of about 12 months from May 2001, which may well have adversely affected his clinical recovery.
49. Dr Burke’s opinion while not totally unassailable, we find a better fit to the total picture of Mr Smith’s injury, investigations and clinical progress from all the sources of information before us. We consider Mr Smith has recovered slowly from his musculo-ligamentous injuries and they are not continuing. There are several aggravating factors which have prolonged recovery from the workplace injury. However, the totality of the information before us indicates any aggravations in 2001 have been compensated for. Thus, Mr Smith is not entitled to ongoing medical treatment paid for by Comcare. His application for permanent impairment should be refused on the additional grounds that his range of movement of both shoulders has been assessed as reasonable or near normal by all medical assessors except Dr Wallace and Dr Preston who found 10% incapacity in his left shoulder only and which Mr Smith has said was improving.
conclusion
50. The records before us show that Comcare accepted liability for an injury to Mr Smith on 13 February 2001. Further, a determination of 13 March 2001 accepted liability for medical treatment up to that date. That is, the first threshold for Mr Smith’s claim is established in respect of liability under s 14 for the occurrence of “sprain of shoulder and upper arm (bilateral)”. Next, Mr Smith sought compensation for permanent impairment which was disallowed on 30 November 2001. On 17 December 2004, a Comcare officer found no evidence of any continuing injury or effects and decided that any payments for further medical treatment for Mr Smith should cease. On that same day, an officer also found no incapacity or permanent impairment claim established. On 28 February 2005, an officer again decided that Comcare had no liability under s 16.
51. The reviewable decision of 1 April 2005 noted that Comcare bore liability to pay compensation pursuant to s 16 for the cost of reasonable medical treatment for the injury it had acknowledged in 2001 to the shoulder and upper arm. The decision maker noted Comcare had never accepted liability for an injury to the neck. Comcare continued to deny liability for any neck injury although the decision maker referred to Dr Wallace’s opinion that there may have been a neck sprain caused by the lifting event in January 2001. We find ourselves, like the decision maker, preferring the evidence of Dr Burke to that of Dr Wallace. Dr Burke took a more thorough history in our view and suggested some action that might assist, as we have already mentioned, recommending an exercise program. Dr Wallace did not suggest a long term strategy, treating Mr Smith’s problems as intermittent only and, as we have already observed, did not greatly assist the tribunal in determining the significance and cause of Mr Smith’s symptoms.
52. On the other hand, while the respondent asked us to be cautious about accepting the evidence of Mr Smith because of his previous conduct in tampering with medical evidence, we thought Mr Smith attempted to give a truthful account of his symptoms. It may be that he mistakenly told Dr Burke he suffered an injury in January 2000 when he meant the workplace injury in January 2001. However, the symptoms Mr Smith described did not convince us that they were a result of his workplace injury. On the evidence before us, and on balance, we conclude the intermittent symptoms he described are attributable to the degenerative condition described by Dr Burke. While Mr Smith continues to suffer restrictions from time to time, we are not satisfied, on balance, that this is due to the workplace injury.
53. We have decided, accordingly, that Mr Smith has not established any present continuing workplace injury. It follows that he has no basis for payment of medical expenses under s 16 as no expenses are now referable to his workplace injury. The next question concerns whether there is liability to pay compensation for non-economic loss pursuant to s 27 of the Act. As Mr Smith has, in our view, no continuing workplace injury or symptoms connected to that injury, he has no claim under ss 24 and 27. In making this finding, we refer to the judgments of the full court of the Federal Court in Telstra Corporation v Hannaford [2006] FCAFC 87, and the reasons expressed by Conti J, with whom the rest of the court agreed as to whether an initial acceptance results in ongoing liability where there is insufficient evidence of any continuing injury.
54. In terms of the Comcare Guide, Mr Smith has not shown that there is any resulting permanent impairment reaching the 10% whole person threshold. Under table 9.1, Dr Burke rates a score of nil. Dr Wallace finds 10% assigned to each shoulder but this finding is more compatible in our view with a degenerative condition as explained by Dr Burke and the preponderance of evidence that Mr Smith has a full or near normal range of shoulder movement. Neither Dr Burke nor Dr Wallace allows any rating under table 9.4 and we find no reason to vary this. Under table 9.6, concerning Mr Smith’s neck, we note that Comcare never accepted that there was any workplace injury to the neck and that Dr Burke’s opinion is that no such injury took place which was related to the workplace. Even if we were to accept that Mr Smith has lost neck movement to the extent of 10% permanent impairment, the evidence suggests that at least some of this effect must be attributed to his excessive weight. It is only when we reach a conclusion that there is 10% impairment that results from a workplace injury that we may find liability under s 24. Here, this requirement has not been established.
55. It follows that Mr Smith has no compensable claim as at the date of the reviewable decision, 1 April 2005. We therefore must affirm the reviewable decision.
decision
56. The tribunal affirms the reviewable decision.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: .....................................................................................
AssociateDate/s of Hearing 1/12/2005, 12/12/2005 and 21/4/2006
Date of Decision 11 September 2006
Counsel for the Applicant Mr Gollan
Solicitor for the Applicant Damien Hill
Counsel for the Respondent Mr Johnson
Solicitor for the Respondent Kimberly Rose
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