Smythe and Comcare (Compensation)

Smythe and Comcare (Compensation) [2017] AATA 2413 (30 November 2017)
Division:GENERAL DIVISION
File Number: 2015/5828
Re:Mark Smythe
APPLICANT

AndComcare
RESPONDENT

DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:30 November 2017
Place:Perth

The reviewable decision is set aside. In substitution, it is determined that liability continues for incapacity payments and medical treatment as a result of the accepted injury.
.......[sgd]..............................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION – Commonwealth employee – injury sustained to shoulder – whether applicant continues to suffer from the effects of of compensable injury - decision under review set aside
LEGISLATION
Administrative Appeals Tribunal Act 1975 – s 34B
Safety, Rehabilitation and Compensation Act 1988 – s 4(1), s 4(9), s 14, s 16, s 19
CASES
Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510
Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452
McAuliffe v Comcare [2002] FCA 769
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
30 November 2017
BACKGROUND

This matter was originally heard by a Tribunal member on 20 and 21 June 2017. At the conclusion of a two day hearing the presiding member reserved her decision. Regrettably, the presiding member had not delivered a decision when she retired from the Tribunal. The Tribunal was subsequently, by direction, reconstituted to comprise Deputy President Kendall. At the request of the parties, it was determined that the matter would not be re-heard de novo by Deputy President Kendall but that, instead, the matter would, pursuant to s 34B of the Administrative Appeals Tribunal Act 1975, be decided by Deputy President Kendall “on the papers” (including the transcript of the previous hearing before the Tribunal as originally constituted). Subsequently, at the request of the parties, a resumed hearing was held for the purpose of receiving further closing submissions from the parties. That half day hearing occurred on 5 October 2017.
The Applicant in these proceedings, Mr Mark Smythe, seeks review by this Tribunal of a reviewable decision of the Respondent, Comcare, dated 22 October 2015 (T47) which affirmed a determination dated 17 August 2015 (T42). By that determination it was determined that Mr Smythe is not entitled to compensation for medical treatment and incapacity payments in relation to a previously accepted “sprain of shoulder and upper arm (bilateral)” (the “accepted I njury”) – date of the injury being 7 December 1998 – under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”).
Mr Smythe is 71 years of age. He was previously employed by Australian Air Express as a cargo porter. In 1998, he was injured while moving a 400kg copper coil into position on a cargo container. In a written statement dated 7 April 2017 (Exhibit 3), Mr Smythe described the accident as follows:
11.I was pushing and moving the coil with my arms and using my leg and foot to help me.
12.      After moving the coil I realised that there was pain in both of my shoulders.
13.When I finished my shift at 8:00pm the pain had got worse, and it became severe overnight.
14.I felt the pain in my neck, upper back and across both my shoulders – with tingling in my ring and little fingers of both hands, and my palms.
15.The next day I completed an incident report form at work, and I tried to do my usual work but then went home.
16.      The pain continued, and I think I saw my doctor on 18 December 1998.
17.      The doctor put me off work because of my symptoms.
…
As noted above, Comcare accepted liability for the injury on 15 January 1999 (Exhibit 1). Mr Smythe has been in receipt of compensation payments since that date. The amount he has received varied over the years and is not relevant to these proceedings.
On 2 January 2015, Mr Smythe made a claim for Permanent Impairment and Non-Economic Loss (T14).
On 9 February 2015, Comcare requested a medical report to determine Mr Smythe’s degree of permanent impairment as a result of the accepted injury, the effect the permanent impairment has had on Mr Smythe’s activities of daily living and the medical condition in general (T16). Various medical opinions were then provided – discussed further and in detail below.
By determination dated 17 August 2015 (T42), Comcare determined that Mr Smythe does not presently suffer from the work related condition and has no present entitlement for medical treatment or compensation payments in relation to the accepted injury, under sections 16 and 19 of the SRC Act.
By letter dated 5 September 2015 (T43), Mr Smythe, through his wife, sought reconsideration of the determination dated 17 August 2015 by way of written submissions.
On 22 October 2015, Comcare issued a reviewable decision (T47) which affirmed the determination dated 17 August 2015.
On 6 October 2015, Mr Smythe filed an application for review in this Tribunal (T2).
Comcare contends that Mr Smythe does not continue to suffer from the work related effects of the accepted injury and that his current condition is, instead, due to other factors such as age-related degeneration. Accordingly, Comcare contends, it is not liable to pay compensation to Mr Smythe under sections 16 and 19 of the SRC Act in respect of his original injury. Comcare does not dispute that Mr Smythe is injured – simply that any injury is not now related to the work related accident of December 1998.
Mr Smythe disagrees. He says that he continues to suffer the effects of the accepted injury of 7 December 1998, that nothing has changed in that regard and that he remains incapable of his pre-injury duties. He says he continues to experience pain and restriction of range of motion and other symptoms in his shoulders, arms and neck and this is attributable to the work accident of December 1998.
ISSUE
On the evidence, both parties accept that Mr Smythe was injured on 7 December 1998. Both parties also agree that Mr Smythe currently suffers from bilateral shoulder problems. Further, it is agreed that these shoulder symptoms are incapacitating and warrant medical treatment.
The core issue before this Tribunal is whether Mr Smythe’s current condition remains related to the accident that occurred on 7 December 1998 or whether it is now the result of some other intervening event or issue (like, for example, “progressive age related degeneration”).
Ultimately, a determination of this issue will determine whether liability exists under sections 16 and 18 of the SRC Act for Comcare to pay compensation to Mr Smythe.
LEGISLATION
This matter is to be determined according to the SRC Act as it was in December 1998, being the accepted date of the Applicant’s injury.
Section 14 of the SRC Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16 of the SRC Act 1998 provides:
Compensation in respect of medical expenses etc.
(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.
Section 19 of the SRC Act provides for compensation for injuries suffered resulting in incapacity for work.
By virtue of s 4(9) of the SRC Act “incapacity for work” means an incapacity for work suffered by an employee as a result of an injury, being:
·an incapacity to engage in any work; or
·an incapacity to engage in work at the same level the employee was engaged in immediately before the injury happened.
The necessary connection between a condition suffered by an employee and the employment is provided for, indirectly, by the definitions of “injury” and “disease” in the SRC Act. Relevantly, s 4(1) of the SRC Act defines the terms “injury” as follows:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
…
On the evidence, as discussed further below, the Tribunal finds that Mr Smythe sustained a physical injury (other than a disease) in late 1998 that arose in the course of his previous employment. That injury resulted in incapacity and this was accepted by Comcare as a given in early 1999. The issue before the Tribunal is whether Mr Smythe’s current incapacity results from that work injury or whether something else is now causing his incapacity.
EVIDENCE
As noted above, this matter was heard over three days in Perth on 20 and 21 June 2017 by a previous Tribunal member and then on 5 October 2017 by Deputy President Kendall, whose reasons for decision appear here.
Mr Smythe was represented by Mr Bruns of counsel. The Respondent was represented by Mr Black of counsel.
The documentary evidence before the Tribunal consisted of:
·Original Determination made under SRC Act, dated 15 January 1999 (Exhibit 1);
·A 191 page set of T-Documents (T1-T50) (Exhibit 2);
·Witness Statement of Mark Thomas Smythe dated 7 April 2017 (Exhibit 3);
·A 340 page bundle of summons material (Exhibit 4);
·Medical Report of Mr Barrie Slinger dated 28 November 2016 (Exhibit 5);
·Medical Report of Dr Angelika Elsmann dated 19 May 2017 (Exhibit 6);
·Medical Report of Mr Ian Kelman dated 15 December 2016(Exhibit 7);
·Supplementary Medical Report of Mr Iain Kelman dated 20 March 2017 (Exhibit 8);
·Supplementary Medical Report of Mr Iain Kelman dated 19 June 2017 (Exhibit 9);
·Medical Report of Dr Steven Overmeire dated 11 November 2015 (Exhibit 10).
The Tribunal also heard oral evidence from:
·Mr Smythe;
·Ms Zupins (Mr Smythe’s wife);
·Mr Barry Slinger, Orthopaedic Surgeon;
·Mr Peter Honey, Orthopaedic Surgeon;
·Dr Angelika Elsmann, General Practitioner;
·Mr Iain Kelman, Orthopaedic Surgeon; and
·Mr Steven Overmeire, Specialist Occupational Physician.
The Tribunal has reviewed all of the evidence before it and notes relevantly as follows.
Mr Smythe’s Witness Statement dated 7 April 2017 (Exhibit 3)
In addition to the evidence provided above at paragraph 3, Mr Smythe provided the following statement to the Tribunal:
After the Accident
20.I was referred to a gym exercise programme – which made things worse.
21.Then I tried physiotherapy for a little while, but it didn't really help my symptoms, and there were times when it was incredibly painful.
22.I was referred to Mr Goonatillake and Mr Honey for treatment.
23.Mr Goonatillake gave me a steroid injection to my left shoulder shortly after the injury, and then Mr Honey arranged for a further injection – and I think that happened within 12 months of the first injection.
24.Mr Honey said that if things didn't get better then I would need left shoulder surgery.
25.Comcare didn't approve funding for the surgery, and things just continued as they were for a long time.
26.I couldn't afford to pay for the surgery on my own.
27.I just put up with the pain, and tried my best to get through the days.
28.In 2015 Mr Honey repeated his recommendation for surgery because my symptoms hadn't changed.
29.I had another steroid injection, this time to my right shoulder in June 2016.
30.There was some relief from the pain after this injection for about 4 months, and the wearing off is gradual.
31.Also in 2016, I had some injections to my C5/6 facet joint and they gave me some improvement in the pain for up to 4 months.
32.These were organised by Dr Michael Murphy, of St Andrews Medical Centre.
33.The effect of those injections has already started wearing off.
34.The injections help with the pain, not with my range of motion.
Return to work programmes
35.I have tried to do some return to work programs, but my symptoms have become too intense to work.
36.In April 2002, I did a return to work program at Auto One in Balcatta as a spare parts sale assistant.
37.I couldn't lift the car batteries, or containers of oil, or jacks, or car stands.
38.I mostly stood around, swept the floors, and dusted shelves.
39.I sometimes did stock counting out the back.
40.Despite these limited duties, I still had trouble with the 5 hours a day, 5 days a week.
41.I was enthusiastic about this role because I wanted my life to have purpose again.
42.I was in constant pain, and my symptoms increased during the return to work program.
43.I managed to stay on the return to work program until July 2002, as APM had put me under pressure to continue the programme.
44.As a result of that programme, Comcare said that I could work 5 hours per day 5 days per week – and they adjusted my payments accordingly.
45.I also tried some work in 2002 quoting for the installation of fences and gates.
46.The quoting was mostly fine – but the problem was that I was asked to help with alternative duties like the installations and I couldn't do that.
47.I think that I lasted about 4 months doing the quoting before I was let go because I couldn't do the more physical work.
48.I did have some difficulty with travelling to places to quote because of the discomfort I experienced while driving .
49.I had some problems with the quotes because I have dyslexia.
50.My hearing is not very good.
51.I tried further work in 2005 as a traffic controller, and I kept up with that work for a few months.
52.The work was not very constant because I was a relief work [sic], and some weeks I would do 2 days, other weeks 4 days, and some weeks 3 days.
53.I think that an average shift for me could be up to about 4 hours – but if the job was only small, like patching a pothole then I would only work for 2 hours.
54.I ended up having too much difficulty holding and carrying the signs and frames, and I was required to stack them on trucks, which I couldn't manage.
55.I arranged both the work with the fences and gates, and the traffic control work myself – without assistance from a rehabilitation provider or Comcare.
56.I have not received any assistance from a rehabilitation provider since February 2003.
57.My recollection is that is the rehabilitation provider closed their file.
58.I have not been able to return to work since that traffic controller job in 2005 because of my symptoms.
59.I can recall some other attempts to find work, and some other training but these didn't work out, and I can't remember all the details.
60.I knew from my discussions with the rehabilitation provider and my own searches that work that accommodated my restrictions was difficult to find.
Current Treatment
61.I last saw my general practitioner in January 2017, Dr Michael Murphy, and I mostly see him to get prescriptions for medication.
62.I currently take a combination paracetamol codeine tablet, an antidepressant called Citalopram, and valium as required.
63.I take ibuprofen daily, and I use Voltaren gel twice a day, and if the pain is bad then three times a day.
64.I also take Voltaren liquid capsules every 4-6 hours as necessary.
65.The pain I experience is a constant ache from shoulder tip to shoulder tip in a direct line across my back, with neck pain and stiffness.
66.There is an aching pain down my arms, and there has been constant pain in my elbows.
67.The pain in my elbows is worse on my left side, and I have difficulty with holding and gripping things.
68.When I had the facet joint injection I had some relief from the elbow problems – which made me realise that those problems were related to the rest of my symptoms.
69.With activity and movement, the pain can become sharp, and feels like a hot stabbing pain in my neck and shoulders.
70.I experience numbness and tingling in my palms and fingers, and with activity there is sometimes a total loss of sensation in my hands .
71.I am restricted in my range of motion – I can't lift my arms above my head.
72.I have trouble holding anything heavy, such as heavy bags of shopping, or a carton of beer.
73.I sometimes have tingling and numbness in my ring and little fingers, and this has been a problem since the accident in 1998.
74.Treatment for my shoulders has been recommended by Mr Honey and he says that surgery would involve:
(a)an arthroscopic assessment;
(b)acromioplasty;
(c)AC joint resection; and
(d)biceps tenodesis.
75.I hope that the surgery improves my symptoms because I have been trying to put up with these symptoms for too long.
76.Mr Slinger has said that I will need an exercise program for stretching and strengthening after the surgery.
77.At this stage I don't know what else I will need after the surgeries to help me get back on track.
Lifestyle
78.Before the injury, I used to go fishing, camping, and prospecting.
79.I can no longer do anything around the house.
80.I was a sheet metal technician working to 12-micron tolerance with a class 4E welding ticket, and I have lost my trade now, and I have lost my purpose.
81.I was progressing in that trade when my contract at the University of Western Australia finished, and I got the cargo porter job as a stopgap to get some money while I found the next job as a sheet metal technician.
82.I was always looking for the next job as a sheet metal technician because it offered better job security, and better money.
83.Getting injured while working as a cargo porter stopped me from ever being able to work as a sheet metal technician again.
84.There were a range of different jobs available to me earlier in my life, that because of my injury I now have no chance at doing.
85.I also have a truck driving licence, which is now useless because of my injury.
86.I can't even climb a ladder to clean my own gutters.
87.It has been a huge burden on my wife
88.I have two children – my son is 29 and my daughter is 25.
89.My daughter lives at home and helps at home, which is essential for us.
90.I used to be able to fix their cars and help them do things, and now they have to help me.
91.I have trouble helping out at home now.
92.I don't really go out anymore, and I spend almost all of my time at home.
93.I almost constantly feel angry, bitter and frustrated, and I can be very short tempered.
94.I have a friend who sometimes comes to visit, and I go to visit my father.
95.I started taking the antidepressants a short time after the accident, and the medication has been off and on since.
96.When I don't take the antidepressant medication, I am right down in the dumps, and I am often angry.
97.I am sometimes concerned about the amount of medication that I take to get by.
98.I have a lot of trouble sleeping, and sometimes I go to bed at different times, and I can be asleep for an hour or two.
99.I have had issues with sleeping positions and my max sleep time is 2 hours at a time.
100.This is now something that is part of my sleeping pattern, and it's now normal for me.
101.I have set up a TV on the back patio so that my unusual hours don't disrupt my family too much, though the impact on them has been significant.
102.I require help with showering and personal care, and I have required that for many years now.
103.It seems like there is no respite from that.
104.I was treated poorly at work because of my workers' compensation claim, and it was difficult to deal with the stigma of being 'on campo'.
105.My complaints to management regarding this harassment were ignored.
106.I feel like I have lost everything as a result of this accident.
107.I know that there are doctors who recommended surgery all those years ago, and it is incredibly frustrating to know that I might have been better before this.
108.It has been hard to consolidate the various recommendations from the doctors.
109.I was earning about $65,000 a year before the injury, and I think I could get about $1,300 a week or more with overtime.
110.I think that I could be earning easily double that now, particularly if I took a FIFO position.
111.It is hard to think about the life that I have missed out on as a result of this injury.
Medical Evidence and Comcare determinations
Medical report of Dr Goonatillake dated 7 January 1999 (Exhibit 4 at 37)

The early medical evidence in relation to this matter is perhaps best described as “sketchy” and was often unclear. This arose in large part because an early X-ray report appears to have confused the left and right shoulder. This had a flow on effect and makes subsequent medical assessments unclear at best.
As summarised by Dr Overmeire in 2015 (Exhibit 4 at 215), Mr Smythe appears to have seen Dr Goonatillake shortly after he was injured. On 7 January 1999, Dr Goonatillake wrote that a left shoulder ultrasound scan suggested a “significant left rotator cuff tear” (Exhibit 4 at 37).
The full contents of Dr Goonatillake’s letter of 7 January 1999 (T4 at 37) reads:
Thank you for referring Mr Smythe who is a 42 year old right handed cargo porter who presents with shoulder problems. He, in fact, developed bilateral shoulder pain affecting his left greater than the right with its onset of 12.12.98, increasing over a three week period. He does not recall a specific event and has no past history of shoulder problems. The pain was felt initially anteriorly with aggravation with elevation internal rotation. He had no night pain, however over the last two to three weeks he has had significant improvement of his pain and range of movement in response to physiotherapy.
On examination today active flexion was 180°, external rotation 50°, internal rotation to T12. Tests for impingement were only mildly positive. Ultrasound as you know, suggests a significant left rotator cuff tear, however given his clinical picture of improvement, I will proceed with an MRI scan to further evaluate his shoulder.
I will let you know how he gets on.
Report of Dr Stephen Davis, Radiologist, dated 27 January 1999 (T4 at 13)
Mr Smythe was referred by Dr Goonatallike for X-rays on 27 January 1999. Dr Davis’ imaging report reads as follows:
SOFT TISSUES OF THE ORBITS
In view of the prior history of metallic orbital foreign body, a plain film was performed prior to the MR examination No residual radio-opaque foreign body is shown. There is mucosal thickening along the lateral right maxillary sinus.
MRI RIGHT SHOULDER
Presentation: ? Rotator cuff tear at ultrasound. Clinically improving. Exclude internal derangement.
Findings:
The supraspinatus, infraspinatus, teres minor, proximal long head of biceps and subscapularis tendons are all intact and there is no evidence of a full thickness or high grade partial thickness tear. There is low grade tendinopathy of the supraspinatus tendon insertion. The other tendons show normal appearances.
There is marrow oedema in the distal clavicle, with small erosions of the clavicular margin of the AC joint. There is oedematous tissue adjacent to the distal clavicle and in the AC joint, with a mild degree of adjacent subacromial bursal thickening, extending into the subdeltoid bursa. The appearances are consistent with post traumatic marrow oedema related to the AC joint and distal clavicle and surrounding soft tissues. The acromion itself is Shape 1, with minor lateral downslope of the anterior acromion, without subacromial spurring or narrowing. No overt labral detachment or perilabral cyst is shown. The juxta-articular muscles are normal.
COMMENT: Prominent oedema in the distal clavicle, adjacent to soft tissues an AC joint, consistent with prior trauma. This pattern may be seen in early post traumatic osteolysis although there is no overt bony lysis at this point. The rotator cuff is intact.
Subsequent MRI scan results do not appear to be available.
Letter from Mr Peter Honey, Orthopaedic Surgeon, dated 20 July 1999, addressed to Mr Smythe’s General Practitioner, Dr Angelika Elsmann and cc’d to Dr Goonatillake (Exhibit 4 at 38)
A letter by Mr Peter Honey on 20 July 1999 states that there was “some confusion” about Dr Davis’s scan results – in particular, which shoulder had actually been scanned and was referenced by Dr Davis. It is noted that there was a suggestion of “some supraspinatus tendonitis with bursal surface oedema and AC joint changes”, which Mr Honey considered to be “consistent with post-traumatic osteolysis or arthritis”.
The full contents of Mr Honey’s letter reads:
On 7 December [Mr Smythe] recollects pushing a 200 kg weight into an air cargo container. He did have some problems with the shoulder at that time but it was much worse when he awoke the next morning. Apparently he thought he had a shoulder rotator cuff problem, although this has settle [sic]. His pain now seems to centre around the acromioclavicular joint. He did say he had a few niggles there in the past, but nothing like the pain he has at present. He particularly complains of problems with use of the arm overhead or with pushing, lifting and pulling is not so bad. He does not experience episodes of giving way, nor does he experience weakness in the shoulder. He has been able to keep on at work in a limited capacity.
Treatments to date initially involved a physio and gym program which he thought aggravated the situation. He subsequently had an injection into the acromioclavicular joint under x-ray control. That relieved the symptoms for two days. He was not sure whether it contained cortisone or simply local anaesthetic. He was seen by Mr Hari Goonatilake. Hari apparently thought he had an acromioclavicular joint problem and according to Mr Smythe he did suggest excisional arthroplasty.
Physical examination showed him to be a pleasant co-operative fellow. He had a good range of movement of the cervical spine without pain. There was no irritability of the brachial plexus. He had bilaterally prominent acromioclavicular joints with some tenderness over the left. There was no significant tenderness elsewhere about the shoulder. He had a good range of glenohumeral movement but it was restricted in elevation and adduction by pain seemingly arising from the acromioclavicular joint the impingement tests specific for the rotator cuff were negative. He had good cuff strength.
I reviewed his MRI scan. There is some confusion as to whether it is his scan or indeed it is his left shoulder. The pictures on the film are oriented as if it was the right shoulder although in small writing they are labelled left. The MRI scan report is for a right shoulder. I have attempted to clarify this with Dr Bill Briedhal. The MRI centre are going to take the films back and see if they can clarify it for us.
In any case, the shoulder demonstrated does seem to have some supraspinatus tendonitis with bursal surface oedema and AC joint changes which I thought were consistent with post traumatic osteolysis or arthritis.
We will clarify the MRI situation. If we cannot be reassured that it is indeed the left shoulder it may be worthwhile getting those films repeated. I have arranged for an Injection under x-ray control once again. I have asked them to put some cortisone in there and will see him back in a fortnight.
On physical examination it appears that he has an AC joint problem and if it does not settle (which it has not done today) then Hari’s plan of arthroscopic assessment and then AC joint resection would seem appropriate.
It does not appear that further shoulder imaging was pursued at the time.
Mr Smythe recalls that he underwent physiotherapy treatment and gymnasium exercise, but this aggravated his reported symptoms. Further, he said that he underwent bilateral shoulder cortisone injections with little benefit. It appears that Mr Smythe also underwent bilateral shoulder X-rays in April 2005, but no further treatment was pursued.
Report of Mr Philip Hardcastle, Orthopaedic Surgeon, addressed to Comcare, dated 21 March 2002 (Exhibit 4 at 40)
Mr Smythe was subsequently assessed by Mr Hardcastle in March 2002. Overall, Mr Hardcastle, who did not give oral evidence to the Tribunal, appears to have been unable to make a specific diagnosis due to the limited clinical information and confusing imaging results available to him.
The full contents of Dr Hardcastle’s March 2002 report reads as follows:
HISTORY:
Mechanism of Alleged Injury/Sequence of Events:
…
In December 1999 [sic] Mr Smythe reported that he had become aware of the gradual onset of left shoulder pain over a months' period. His work involved considerable repetitive lifting of cargo in and out of planes from the standing position to crouched postures in awkward spaces within the plane. He reported this and consulted a general practitioner.
He denied any previous problems with his left shoulder.
Initial/Early Treatment Received:
Mr Smythe attended Dr Elseman, General Practitioner who initially referred him to Dr H. Goonatillake, Orthopaedic Surgeon, but no treatment was arranged. Subsequently he was referred to Mr Peter Honey, Orthopaedic Surgeon who arranged for an MRI Study. He was offered surgery but was informed that the success rate was fairly limited, so this was never proceeded with.
He returned to work approximately three weeks later in the office with a restriction on lifting of 20kg. He had some difficulty with this work and so he changed to computer work, which he again found unsuitable. Evidently his employer then tried to dismiss him and he went to the Industrial Commission and had 75% of his wage reinstated until he obtains employment.
Subsequent Progress/Specialist Management:
Mr Smythe stated that in early 2000 he received several injections into his left shoulder, with the first injection providing reasonable relief of his pain for a short time. The second injection had no effect.
He also received acupuncture, which helped for two or three days and he attended for several sessions of this. Physiotherapy apparently increased his pain as this consisted mainly of gymnasium work.
He continued taking medication up until approximately one year.
Mr Smythe reported that his right shoulder pain commenced at about the same time but said that symptoms here had not been as severe.
Current Status:
Mr Smythe continues to complain mainly of left shoulder pain, which is constant and ranges between 2-8/10 on the Visual Analogue Scale. There is associated morning pain with some neck stiffness. Previously he would wake during the night but he no longer does so now.
The main aggravating factors are lying on his shoulder, using his arm in abduction or lifting in abduction. Repetitive movements such as when swimming also aggravates his symptoms.
He obtains relief of his symptoms by taking medication although no longer takes this now. Coughing and sneezing cause no aggravation of his symptoms.
He now only has numbness or tingling on a very occasional basis for a short period.
At the present time he regards his symptoms as remaining static.
Present Activities:
He is able to drive a motorcar for approximately one hour. At home he can prepare meals, wash clothes and dishes and carry shopping bags but he is unable to vacuum, mop, sweep or push a shopping trolley.
In the garden he waters the plants and rakes leaves. He weeds with his right hand as well as prunes on a similar basis. He can mow the lawn. His hobbies include camping and prospecting which he is unable to do currently.
He plays darts once per week and visits friends but rarely goes out for dinner or movies.
He does not lie down during the day.
Present Treatment:
He is receiving no specific treatment at the present time.
….
PHYSICAL EXAMINATION:
Mr Smythe presented as a well looking man with long brown hair and a pigtail and blue eyes that was 174cm in height for a weight of 75kg.
He had a normal posture and gait and was noted to remove his upper garments with relative ease.
Head/Neck:
On examination he was noted-to have normal curves with local tenderness to the right at C4/S. Flexion of full range and extension was to 65°. Lateral flexion was 35° to both sides and rotation 85° bilaterally.
There was no increased pain with compression or distraction.
Upper Limbs/Shoulder Girdles:
On examination I noted that he had prominent acromioclavicular joints with tenderness over these on both sides and on the right over the trapezius and anterior aspect of the shoulder. Abduction on the right was restricted to 190°, flexion 110°, extension 30° and adduction 40°.
External rotation was 80° and there was a slight decrease in internal rotation with his thumb reaching to just below the scapula.
Motor power from C5 to T1 was intact and sensation to light touch was equal.   His deep tendon reflexes were symmetrical and intact.
Circumferences around the axilla were equal on both sides.
Grip strength on the right was 27kg and 28kg on the left.
INVESTIGATIONS:
No investigations were presented for review but evidently an MRI Scan performed of his right shoulder demonstrated the rotator cuff to be intact and there was oedema adjacent to the acromioclavicular joint. Mr Honey in his report of 20 July 1999 has referred to some confusion as to which shoulder had the MRI Scan or whether the report indeed related to Mr Smythe. I have been unable to clarify this.
SUMMARY AND ASSESSMENT:
Mr Smythe has evidence on clinical examination of degenerative acromioclavicular disease, which appears to be part of his pain syndrome. The cause of the significant loss of shoulder movement in abduction on the left is difficult to explain and may be related to some oedema in the sub-acromial bursa. It is also likely that there will be some degenerative cervical neck disease from my clinical examination.
In response to the specific questions contained in your letter dated 19 February 2002:
1.    History given at consultation.
I have provided the history as related to me by Mr Smythe in the report above.
2.    What is the specific diagnosis of the condition(s) currently suffered by Mr Smythe?
There is evidence of degenerative cervical disease but no radiological investigations are available. He does have evidence of acromioclavicular pathology on both sides. I do not have any further information concerning his MRI Scan, as to which side actually showed the sub-acromial oedema and intact rotator cuff. Certainly, his left side is more symptomatic.
3.    What is the relationship between Mr Smythe's current condition and his employment with Australian Air Express?
There are certainly pre-existing factors contributing and it is difficult to assess the effect of his work activities until the side the MRI Scan was performed is clarified.
4.    Is the incident of 7 December 1998 still the main precipitating factor of Mr Smythe's current condition?
Mr Smythe assures me that the report of shoulder symptoms was 7 December 1999. He reports a history of undertaking considerable repetitive lifting with respect to his occupation over a period of time as the cause of the onset of his symptoms. Certainly from Mr Goonatillake's report and that of Mr Honey, the impingement signs that may have been related to sub-acromial pathology had resolved and the major problems appears to have been from the acromioclavicular joint. Also Mr Goonatillake in his report of 28 January 1999 that, “Symptomatically, however, he is all but settled and is now back at work with no particular problems”. Certainly from the available evidence I would have expected the effects of this incident to have resolved.
5.    Is there an underlying or pre-existing condition? If so, in your opinion, is the condition diagnosed at question 2 above an aggravation or recurrence oft/tat pre existing or underlying condition?
Mr Smythe does have pre-existing degeneration in the acromioclavicular joint and most likely also in his cervical spine. It would be my opinion that it is unlikely that the cervical symptoms are related to this particular work incident but that more than likely there has been an aggravation of the pre-existing degenerative acromioclavicular condition. I would expect such condition as well as the sub acromial pathology to be a temporary aggravation.
6.    Do the effects of any aggravation or acceleration continue to materially contribute to the condition or have any effects of that aggravation resolved?
Mr Smythe continues to complain of bilateral shoulder symptoms but the evidence from the earlier reports is that there had been an almost complete resolution, which is what would be expected. Then, at some stage between Mr Goonatilake's report of January 1999 and Mr Honey's assessment of 20 July 1999 there has been a recurrence, but there is no specific history of any injury. My understanding is that he did not during this period perform any repetitive lifting. Therefore, it would seem that these symptoms are more likely to be related to the pre-existing condition and that the effects of his work activities have resolved to a large extent.
7.    Do you consider that there is any permanent effect or permanent damage caused by Mr Smythe's condition(s)?
A.if so, could you please explain precisely what that permanent effect or permanent damage is and in relation to which condition?
It is doubtful that there will be any permanent damage as a result of these work activities. If there was, it would be to a minor degree.
B.if not, when do you consider it would be reasonable to assume that the effects of the condition(s) ceased or will cease?
This is a difficult question to answer, but based on the reports of Mr Goonatillake and Mr Honey, it would seem that the effects resolved to a significant degree by January 1999.
8.    What is Mr Smythe's current physical capacity for employment?
In my opinion Mr Smythe has a capacity for employment and I would recommend based on his previous history that he avoids repetitive use of his shoulders above 45° abduction and 90° flexion and restricts his lifting to no more than 10-15kg, with his arms fairly close to his side and no more than 3kg above 45° abduction and 90° flexion.
9.    What restrictions, if any, are imposed on Mr Smythe's current capacity for employment?
Please see my response to question 8 above.
10. What further treatment would you recommend to resolve his current condition(s)? (Please indicated the therapeutic benefit of such treatment, the duration and frequency?
Further treatment would be dependent on a more specific diagnosis. I would recommend that he has plain X-rays performed of his cervical spine and a repeat of the MRI scan (if the original scan as noted in Dr Honey's report was performed on the left). Depending on the MRI Scan findings he may be a candidate for more invasive treatment, initially with injections similar to what he bad in the past, as he did obtain some relief with these previously. He could also be considered for an acromioplasty and possible arthroscopic debridement of the sub-acromial bursa on the left.
11. Your prognosis for the condition(s).
Mr Smythe's symptoms have not really improved over several years and are likely at this stage in the short to medium term to remain the same. It is not possible at this stage to determine the long term prognosis without further investigations.
12. Any other comments that you can provide to assist with the management of Mr Smythe's compensation claim.
I would be interested in further correspondence from Mr Honey, with respect to which shoulder had the MRI scan. I would also be interested in whether he does proceed with any further investigations and the results of these. It could be worthwhile having a further review after the results of these are known.
Further Report of Mr Hardcastle, Orthopaedic Surgeon, dated 10 November 2002 (Exhibit 4 at 47)
Mr Smythe was re-assessed by Mr Hardcastle in November 2002. The full contents of his report read as follows:
…
FILE MATERIAL AVAILABLE:
The following file records were made available to me :
1.Report by Ms Melissa Burns, Rehabilitation Consultant, dated 15 August 2002.
2.Report by Ms Melissa Burns, Rehabilitation Consultant, dated 30 July 2002.
HISTORY:
I re-questioned Mr Smythe in order to confirm the previous historical details of the injury which occurred on 7 December 1999 and beyond, until 15 March 2002 when he was last assessed by me. He agreed with all aspects of my report and I refer you to that report dated 21 March 2002.
Progress Since Last Assessment:
Mr Smythe has sustained no further injuries or received any treatment since my initial report. He has been reviewed by Advanced Personnel Management and undertook a work trial as a spare parts person for eight weeks which he managed reasonably well with limitations of 20kg lifting and avoiding overuse of his left shoulder. He ceased this work in approximately June or July 2002.
Continuing Employment/Work Duties:
He is presently seeking employment.
Continuing Symptoms/Disabilities
Mr Smythe complained mainly of left shoulder pain, which is constant, ranging between 4/10 and 8/10 on the visual analogue scale.
His shoulder aches in the morning and is worse at night. He wakes at approximately 2.30a.m.
The main aggravating factors are sleeping, using his arm above shoulder height, mowing and raking.
He tends to obtain relief with medication.
There is no aggravation by coughing or sneezing.
He experiences occasional tingling over the ulnar aspect of both hands following raking and mowing.
He is also experiencing some right shoulder pain, which he said is approximately 50% less than his left shoulder with the same aggravating factors.
His other complaint is of neck stiffness and pain occurring approximately every two weeks and lasting approximately one day.
Present Activities:
His wife currently works. He can drive the car for approximately 30 minutes. He can cook a little and wipe the dishes but otherwise undertakes virtually no other tasks in the house. He does mow the lawn and rake but does not undertake any weeding, digging or planting.
He is unable to participate in his hobbies particularly playing darts. He does go to the pub once a week, visits friends and reads.
He walks on a regular basis and takes his daughter lunch as the school is just across the road.
Presently he is seeking employment.
Oswestry Disability Index:
His Oswestry Disability Index was approximately 52%, in which he related the following:
•          The pain is severe but comes and goes.
•Washing and dressing increases the pain and it is necessary to change his way of performing these tasks.
•Pain prevents him from lifting heavy weights but he can manage light to medium weights if they are conveniently positioned.
•          He has an unrestricted walking distance.
•          He can sit in his favourite chair for as long as he wishes.
•He experiences some pain while standing but this does not increase with time.
•          Due to his pain his normal nights sleep is reduced.
•There is no significant effect on his social life apart from limiting his more energetic interests.
•          The pain restricts all forms of travel.
•          The pain is gradually worsening.
PHYSICAL EXAMINATION:
Mr Smythe was a well looking man with medium dark hair and a goatee beard. He had a normal posture and gait.
He was 174cm in height and weighed 75kg.
He was slightly limited in removing his upper garments by his left shoulder.
Head/Neck:
He had normal cervical curves with tenderness bilaterally at C4/5 posteriorly with no anterior tenderness and a little tenderness at T2 bilaterally.
Extension was approximately 45° to 50°, flexion was to full range, rotation was 90° to both sides and lateral flexion was 40° bilaterally.
There was increased pain with compression and relief of symptoms with distraction.
Upper Limbs/Shoulder Girdles:
There were slightly prominent acromioclavicular joints and no hand callosities.
Examination of his left shoulder demonstrated tenderness in the left subacromial region and anteriorly just under the acromion. Abduction was 80°, flexion was 90°, adduction was 40°, extension was 30°, external rotation was 60° and on internal rotation his thumb reached T12.
The impingement and resisted biceps flexion tests were positive.
Examination of his right shoulder demonstrated tenderness only anteriorly adjacent to the acromion with abduction being 120° and flexion 130°.
Other ranges of movement were equal and the impingement and biceps flexion tests were again positive.
There were no objective neurologic signs in his upper limbs and circumferences at the axilla and forearm were equal.
Grip strength on the right was 39kg and 29kg on the left.
INVESTIGATIONS:
No further investigations were available for review.
SUMMARY AND ASSESSMENT:
Mr Smythe continues to complain of bilateral shoulder symptoms the cause of which has not fully been established and I understand there is some doubt about the MRI scan and on which side this was performed.
I would recommend that he at least undertake ultrasound investigations of both shoulders as he may benefit from injection techniques or possibly even arthroscopic surgery given the continuing loss of movement in bath shoulders. I would not recommend any other specific treatment.
He remains unfit for his employment as a porter in the cargo industry due to the nature of the work involved but he has undertaken a work trial through Advanced Personnel Management and certainly his physical impairment would not prevent him working as a spare part sales assistant.
In response to your specific questions:
1.    What is the precise diagnosis of Mr Smythe's condition?
It is not possible to make a precise diagnosis without further investigation and clarification of the MRI scan and to which side this relates. I have recommended as a simple procedure for him to undergo bilateral ultrasound investigations of both shoulders and if these do show subacromial impingement then he could undertake injections into both shoulders at the same time.
2.    Do the effects of the compensable Injury of 7/12/1998 still contribute to this condition?
It would be my opinion that Mr Smythe's left shoulder symptoms are still related to the work activities of 7 December 1998.
3.    If there were a pre-existing condition, would it (on the balance of probabilities) have progressed to its current state if the injury of 7/12/1998 had not occurred?
There is likely to have been a pre-existing condition but given the nature of the work duties these have rendered this symptomatic and the symptoms, particularly on the left, have continued. The symptoms on the right are more likely related to progression of his degeneration given that Mr Smythe has had to use his right arm more with the pain that he has been experiencing on the left hand side.
4.    What is the current state of Mr Smythe's condition and what Is the expected prognosis?
I have outlined Mr Smythe's current state in the body of this report. It is not possible to comment on prognosis without further investigations.
5.    What form of treatment, if any, is required?
I would not recommend any conservative treatment but if there were evidence of subacromial impingement on investigations which appears to be the situation clinically, then I would recommend more invasive treatment with subacromial injection Initially and possibly arthroscopic decompression.
6.    Does Mr Smythe's condition incapacitate him for further employment?
Mr Smythe's condition does limit his capacity for future employment.
7.    Is the claimant capable of returning to his pre-injury employment as a Porter? If so, what strategies should be followed in the return to work and what guidelines or restrictions should be observed?
Mr Smythe would be considered unfit to return to his pre-injury employment.
8.    If Question 7 is “no”, is Mr Porter [sic] capable of a return to work in some other capacity? If so, what strategies should be followed in the return to work and what guidelines or restrictions should be observed?
Mr Smythe would be considered capable of returning to other employment, which he is suited to and has recently undergone a successful work trial as a sales assistant, which would be suitable. The restrictions that he had in this particular occupation, which were lifting of 20kg and avoiding repetitive use of his arms, would be appropriate. I would consider that he should avoid using his arms above 45° abduction on both sides.
Report of Dr Steven Overmeire, Consultant Occupational Physician, dated 26 February 2015 (T17 at 63)

On 2 January 2015, Mr Smythe made a claim for Permanent Impairment and Non-Economic Loss (T14).
On 9 February 2015, Comcare requested a medical report from Dr Steven Overmeire, Occupational Physician. Dr Overmeire prepared a report dated 26 February 2015 which, in effect, concluded that Mr Smythe’s current condition was due to age related degeneration. Relevantly, that report reads as follows:
…
The purpose of the assessment was to determine his permanent impairment as a result of his accepted condition, sprain of shoulder & upper arm, suffered on 7 December 1998.
Reports and Documents Reviewed
·Compensation Claim Form, signed by Mr Smythe on 18 December 1998.
·Letter by Mr Hari Goonatillake, Orthopaedic Surgeon, dated 7 January 1999.
·Letter by Mr Peter Honey, Orthopaedic Surgeon, dated 20 July 1999.
·Reports by Mr Philip Hardcastle, Consultant Orthopaedic Surgeon, dated: 21 March 2002; and 10 November 2002.
·Letter by Dr Angelika Elsmann, dated 13 November 2007
·Compensation Claim for Permanent Impairment and Non-Economic Loss, signed by Mr Smythe on 2 January 2015.
History of Injury
He said that on 7 December 1998, he pushed a 400kg copper coil into a container, which resulted in an acute onset of bilateral shoulder pain. It was predominantly left-sided. He continued working, but he reported deteriorating, bilateral shoulder pain radiating to the upper arms.
His recollection of further events is sketchy. I note from a letter by Mr Goonatillake one month later, on 7 January 1999, that a left shoulder ultrasound scan suggested a “significant left rotator cuff tear”. Subsequent MRI scan results are not available. A letter by Mr Peter Honey on 20 July 1999 states that there was “some confusion” about the scan results. There was a suggestion of “some supraspinatus tendonitis with bursal surface oedema and AC joint changes”, which Mr Honey considered to be “consistent with post-traumatic osteolysis or arthritis”. It does not appear that right shoulder imaging was pursued at the time.
Mr Smythe recalled that he underwent physiotherapy treatment and gymnasium exercise, but it aggravated his reported symptoms. He said that he underwent bilateral shoulder cortisone injections which gave him “2 hours” of pain relief only. Mr Smythe said that Mr Goonatillake “wanted to carve me up”, but he declined this treatment.
Mr Smythe said that no further medical treatment was pursued, as he believed that it was not covered by Comcare.
He was subsequently assessed by Mr Hardcastle in 2002, who suggested that he suffered from “an aggravation of a pre-existing degenerative acromioclavicular condition”. Mr Hardcastle felt unable to make a specific diagnosis due to the limited clinical information and imaging results available.
It appears that he underwent bilateral shoulder x-rays in April 2005, but no further treatment was pursued.
Mr Smythe said that he self-manages his ongoing shoulder symptoms with analgesia and Voltaren. He said that he tried acupuncture and occasional massage treatment, but his symptoms are deteriorating overall.
Current Symptoms
He reports constant bilateral shoulder pain that is located in the anterior and deltoid region. It is currently worse on the right. It is aggravated by arm movement, reaching overhead, raking leaves, mowing the lawn and riding his bicycle. He reports interrupted sleep due to pain aggravation when lying on his side in bed.
He reports occasional paraesthesia in the ulnar aspect of both hands when cycling longer than 10 minutes.
Current Management
He takes Voltaren or Panamax as required, up to 3 times per day. He pursues no other treatment.
He attends his general practitioner for compensation certification only.
Current Work Status
He receives Comcare compensation payments. He has not worked since 2001.
Current Activities
Mr Smythe said that he fills his day by watching television and doing domestic tasks. He said that he manages vacuuming, dish washing and cooking food. He manages gardening, including mowing the lawn and raking leaves, though this can aggravate his shoulder pain.
He said that he has stopped playing darts in his leisure time. He denies any other physical leisure pursuits or sports. He reports a driving tolerance of half an hour before an increase in bilateral hand tingling.
…
Examination
Neck
I noted a protracted neck posture. He reported no palpation tenderness. There was no palpable muscle spasm.
He demonstrated a full range of neck movement. He reported bilateral neck pain on bilateral rotation.
Upper limbs
Upper limb tension testing was negative bilaterally. Upper limb neurological examination was normal.
Shoulders
I noted a protracted shoulder posture. There was no evidence of asymmetrical muscle wasting.
There was bilateral prominence of the AC joints, which were non-tender to palpation. He reported palpation tenderness over the greater tuberosities bilaterally.
Active shoulder motion measured with a goniometer was as follows:
Right shoulder  Left shoulder
Abduction                   80°                  Abduction                   90°
Adduction                   50°                  Adduction                   50°
Flexion  90°                  Flexion  90°
           Extension                   40°                  Extension                   40°
           Internal rotation          60°                  Internal rotation          60°
           External rotation         60°                  External rotation         60°
Impingement signs were mildly positive bilaterally. AC joint provocation signs were negative bilaterally.
Investigations
The only investigation result available is an x-ray report (shoulders) dated 21 April 2005. It states “Glenohumeral and acromioclavicular joint relations are normal. No definite degenerative change is seen in either acromioclavicular joint. The acromion are type II curvature, with an apparent small anterior acromial spur on the left. No os acromiale or soft tissue calcifications were seen”.
Summary and Assessment
Mr Smythe is a 58-year-old former cargo porter with chronic bilateral shoulder pain following an alleged manual handling incident at work in December 1998. Other than a limited period of rehabilitation exercise and bilateral cortisone injections, it appears that no medical treatment has been pursued since then.
He reports deteriorating bilateral shoulder pain and movement restriction, which he selfmanages with analgesia.   He has not worked since the reported work incident and he remains on compensation benefits.
Questions
I now turn to the questions posed in your referral letter.
Diagnosis and prognosis
1.Please detail the history of Mr Smythe’s condition as reported to you.
Please refer to “History of Injury” in the body of this report.
2.From what specific condition does Mr Smythe currently suffer? Please provide a short description of the condition, including its known aetiology and progression. Please include clinical signs and symptoms to support your conclusion.
Without access to more recent imaging results, it is difficult to provide a specific diagnosis. On the basis of the available information, however, it is my opinion that Mr Smythe has bilateral subacromial impingement due to rotator cuff tendinopathy and possible aggravation of age-related AC joint degeneration. It appears that his deteriorating symptoms are due to progressive degeneration, in line with the expected natural history of this condition.
3.What is the prognosis for Mr Smythe’s current condition?
Given the status quo, without any further medical treatment, Mr Smythe is expected to experience persisting bilateral shoulder pain and movement restriction. This may improve with further treatment that may include subacromial cortisone, physiotherapist guided rehabilitation exercise and possible surgery.
4.Are there any aspects of the clinical examination which tend to suggest Mr Smythe is:
a)voluntarily exaggerating his symptoms;
b)consciously guarding restriction of movement;
c)displaying symptoms and examination findings inconsistent with the claimed condition;
d)demonstrating a range of movement during your passive observation which were not replicated during clinical examination?
There was no obvious illness behaviour or guarded movement to suggest that he was voluntarily exaggerating his symptoms. I found that both hands were non-callused, but I did note a right upper arm bruise which Mr Smythe related to a 'muscle tear' when mowing the lawn recently. This confirms that he still uses both arms for physical activity at home. There was otherwise no suggestion of any inconsistency between his reported symptoms, his reported activity and the clinical findings.
Employment relationship
[sic] Is the condition currently suffered by Mr Smythe related to:
a)his employment as a Doorperson or Luggage Porter;
b)factors unrelated to work;
c)a pre-existing congenital, constitutional or underlying condition;
d)the natural progression of an underlying condition;
e)underlying degeneration as part of the natural aging process; or
f)other health issues?
Given the passage of time since the reported work incident, which occurred more than 16 years ago, it is my opinion that the alleged work incident no longer plays a significant role. The contemporaneous medical evidence and reported history do suggest that manual duties at work triggered the onset of bilateral shoulder symptoms, but the reported deterioration in symptoms since then is consistent with progressive degeneration of the rotator cuff and AC joint. A repeat bilateral shoulder MRI scan would be informative in this regard.
6.If Mr Smythe’s initial condition has been superseded by a different condition, please provide your opinion on what factors have contributed to the different condition.
In my opinion, his initial condition has been superseded by progressive, age-related degeneration of the AC joints and rotator cuff, though a repeat MRI scan of both shoulders would be informative in this regard.
7.If you consider Mr Smythe’s employment continues to contribute to his condition, please explain the basis of your conclusion, having regard to the fact the employment incident occurred on 7 December 1998.
The only basis on which Mr Smythe's employment may continue to contribute to his ongoing condition is the reported timing of onset of symptoms, which occurred after a heavy manual handling incident. It thus appears unlikely that he would have developed his symptoms at that stage had it not been for his employment as a cargo porter. Nevertheless, as outlined, the reported deterioration in symptoms over the past 16 years strongly suggests that his current symptoms are due to progressive, age-related degeneration.
Treatment
8.We understand Mr Smythe has been in receipt of the following medical treatment. – GP Medical consultations.
There has been no specific medical treatment undertaken in the past 15 years.
9.In your opinion, was all medical treatment reasonable for Mr Smythe to obtain in the circumstances? If not, why not?
He has not undergone any specific medical treatment, which I would not consider reasonable given Mr Smythe's ongoing reported symptoms and work disability .
In my opinion, he would have benefited from further physiotherapy treatment to correct his shoulder posture, improve his scapular muscle strength and undergo repeat subacromial cortisone injections. In my opinion, it would have been appropriate for Mr Smythe to undergo repeat orthopaedic assessment with a view to surgical intervention, though I note that so far he has declined surgery.
10How long will Mr Smythe need his current treatment?
There is no current treatment being pursued.
11. In your opinion, does Mr Smythe require assistance in household activities due to his condition? If so, please advise:
a)    The type of assistance required.
b)    The length of time the assistance is required.
In my opinion, there is no indication for assistance with household activities, given that Mr Smythe advised carrying out his normal domestic tasks, including gardening.
Capacity for Work
13. Is Mr Smythe currently medically fit to engage in any type of work?
Mr Smythe has the capacity for full time alternative work duties, in my opinion.
14. If you believe Mr Smythe is medically fit to engage in some work, please specify the type of duties he could undertake, or specify the duties that should be avoided. In particular:
a)    the type of work Mr Smythe should be able to perform;
In my opinion, Mr Smythe has the capacity for light to moderate physical tasks below shoulder height, performed on a non-repetitive basis. I note that he successfully manages household and gardening tasks at present, which demonstrates that he does retain a work capacity.
b) the range of movement/s Mr Smythe can undertake in relation to his condition;
In my opinion, Mr Smythe is fit to work within inner reach, that is, with elbows held by the side, without significantly risking an aggravation of shoulder pain.
c) for the described range of movement/s please state the length of time which the movements can be performed comfortably;
Within inner reach, Mr Smythe has the capacity for light to moderate physical tasks. I would recommend a maximum lifting limit of 5kg. I would advise against repetitive or sustained reaching or lifting items away from the body. I would advise against repetitive bilateral arm movements.
d) the number of hours per week Mr Smythe should be able to perform;
In my opinion, Mr Smythe has the capacity to work 40 hours per week if the restrictions can be accommodated. Although he may experience ongoing shoulder discomfort, as he does at present during domestic and gardening tasks, there is no medical contraindication to Mr Smythe working 40 hours per week.
e) details of any work restrictions and limitations Mr Smythe has in relation to his condition addressing the activities below as well as any other limitations Mr Smythe may have:
i.         Can Mr Smythe drive? If so how long for?
I consider him fit to drive an automatic, powered steered vehicle. On the basis of his subjective comfort, it appears that he copes with half hour periods of driving before having a break.
ii.         Can Mr Smythe stand? If so how long for?
Mr Smythe has an unrestricted standing capacity on the basis of his shoulder conditions.
iii.        Can Mr Smythe lift objects? If so how much weight?
Mr Smythe has the capacity to lift up to 5kg within inner reach, in my opinion. I would advise against lifting items away from the body or overhead.
iv.In your opinion, are there any social situations which would impact Mr Smythe due to his condition?
In my opinion, there is no medical reason why Mr Smythe should be restricted from social situations on the basis of his shoulder injury.
15. If Mr Smythe is not fit to return to work, when do you believe he would be able to undertake a return to work programme?
In my opinion, Mr Smythe has the capacity to work at present. He is fit for a graded return to work programme.
16. Are there any other factors causing inability to work or work restrictions? If so, please provide details.
There appear to be psychosocial factors at play, not least Mr Smythe's perception that Comcare are to blame for his inability to return to work. He advised me that he had considered working for a friend's dry-cleaning business, but felt that he was prevented from doing this by Comcare or the case manager at the time. Overall, he felt that he has been “cut loose and forgotten about”.
17. Is Mr Smythe capable of undertaking a rehabilitation programme? If so, please advise:
a) whether the programme should be graduated (if yes, please provide a schedule of weekly working hours);
b)details of any work restrictions;
c)a time-frame in which a return to normal working hours could be achieved.
In my opinion, Mr Smythe has the capacity to undertake a rehabilitation programme with the following restrictions:
·     Work within inner reach.
·     Avoid sustained or repetitive reaching bilaterally.
·     Avoid lifting above 5kg at waist height.
·     Avoid lifting items away from the body or overhead.
·     Avoid handheld vibratory equipment use.
·     Maximum driving limit of half an hour at a time.
Within these restrictions, he should be capable of a graded return to work, starting on 4 hours per day and upgrading to full time hours over a 2-3 month time-frame.
Permanent impairment assessment
1. Does Mr Smythe suffer an impairment as a result of his compensable condition?
Given the passage of time since the alleged work incident and his ongoing shoulder movement restriction, I consider that Mr Smythe has sustained a permanent impairment.
2.If so, is the impairment permanent? In providing reason for your opinion, please comment on:
a)    Whether the impairment is likely to continue indefinitely.
b)    The likelihood, if any, of an improvement is Mr Smythe’s condition.
c)    Whether the impairment could be improved by further medical or rehabilitative treatment. If so, what treatment do you recommend?
I consider this impairment permanent, but if further treatment is pursued, the effects of his current impairment are likely to improve. As outlined, I would recommend a repeat bilateral shoulder MRI scan, a resumption of active physiotherapy treatment, with or without subacromial cortisone injections, and repeat orthopaedic evaluation.
3. If Mr Smythe suffers an impairment, which you believe to be permanent, what is the percent of impairment to the body part(s), system(s) or function(s) resulting from the injury? Please give reason for your opinion, with reference to the relevant table/s of the Guide.
Where 2 or more tables are applicable, please make separate assessments under each table and provide reasons for choosing the tables. If, in your opinion, one table is more appropriate than the other, please identify that table and explain your reasoning.
In your report, please include details of the test/s used to assess the range of loss of joint movement of both shoulders and arms.
On the basis of today’s clinical findings, Mr Smythe has the following impairments:
·Left shoulder – 5% WPI under 9.11.1a, 1% WPI under 9.11.1b, and 2% WPI under 9.11.1c, resulting in 8% Whole Person Impairment.
·Right shoulder – 5% WPI under 9.11.1a, 1% WPI under 9.11.1b, and 3% WPI under 9.11.1c, resulting in 9% Whole Person Impairment.
4.Please note the injured worker has also specified the medical condition- neck on the Permanent Impairment claim form.
Could you please obtain a history from Mr Smythe and provide your opinion on each of the claimed conditions and on whether it related to the accepted compensable condition and how if related to the accepted compensable condition?
There is no clinical evidence that Mr Smythe has sustained any work-related injury to the neck. He may be suffering from degenerative-type mechanical neck pain, but clinically he demonstrates a full range of neck movement with no evidence of adverse neural tension, radiculopathy or muscle spasm. There is therefore no evidence of any impairment of the neck.
5. Does the impairment to an affected body part(s), system(s) or function(s) result from two or more conditions (for example an underlying condition, and a subsequent condition)?   If so, is it possible to isolate the effects of the condition which was contributed to by Mr Smythe's employment?
In my opinion, his current condition is due to a combination of the work incident and age-related degeneration of the AC joints and rotator cuff.   It is not possible to specifically isolate the extent to which his current condition is due to either of these components, but given that he reports deteriorating symptoms, I consider the agerelated degenerative process to be the more significant contributing factor at present.
6. If you can isolate the effects of the condition which was contributed to by employment, please provide your assessment of percentage of impairment, as it relates to the compensable effects alone. Please give reasons for your opinion, with reference to the relevant tablets of the Guide.
It is not possible to isolate the specific contribution from the age-related degenerative process, given the passage of time since the alleged work incident.
7. If you cannot isolate the effects of the employment related impairment, please give an overall assessment for each body part, bodily system or function based on the most relevant table.
My assessment of the impairment is 9% WPI for the right shoulder and 8% WPI for the left shoulder.
8.Is it probable Mr Smythe's condition will deteriorate further, resulting in an increase to the overall percentage of impairment? If so, over what period of time would you expect this deterioration to occur?
Without further medical treatment, it is probable that Mr Smythe's condition will deteriorate further as a result of progressive age-related degeneration. This progressive deterioration has already commenced.
9. Please consider the attached Compensation claim for permanent impairment and non-economic loss from supplied by Mr Smythe, and provide your opinion on:
a) the rating provided by Mr Smythe;
b) whether the ratings are consistent with the degree of the permanent impairment claimed in relation to the compensable condition?
c) the effects of each work-related component for each non-economic loss questionnaire and each condition?
Mr Smythe’s subjective impairment rating appears excessive. I note that he rated pain at 5/5 and suffering at 5/5, but I note that despite his pain, he is still able to manage domestic activities and gardening. This is not consistent with this high rating.
The other ratings appear reasonable.
Letter from Dr Elsmann to Dr Honey, Orthopaedic Surgeon, dated 5 May 2015 (Annexure A to Comcare’s Statement of Facts, Issues and Contentions dated 12 May 2017)

A referral letter from Dr Elsmann to Dr Honey dated 5 May 2015 (Annexure A to Respondent’s Statement of Issues, Facts and Contentions dated 12 May 2017) reports that Mr Smythe was suffering from a ruptured long head of bicep after Mr Smythe noticed a pop of his bicep tendon on 20 February 2015 while Mr Smythe was putting away a self-propelled lawn mower. That letters reads:
You have seen him in relation to a wc injury in 1999. Back then he had been in a return to work program but was unable to get further work trials as his limitations at the time were 2 hours per day 5 days per week, 5kg lifting, sit or travel for 30 min , stand 10min. He found he was not suitable for clerical work partly due to deafness and partly to lack of aptitude for it. He was unable to find employment and has thus remained on these limitatinons [sic] since then.
The wc process has recently re-assessed him.
I enclose the report for your background.
Although I saw him originally, as I have moved practice twice since then l do not have any past imaging or specialsit [sic] reports.
He is now however suffering from a ruptured long head of bicept [sic] and I refer [sic] him back to you privately, not under workers comp in relation to his rigth [sic] shoulder. He noticed the pop of his bicept [sic] tendon on 20th February.
He has been able to do some home duties but repports [sic] that this never exceeds 30 minutes at a time. The bicepts [sic] tendon ruptured as he put away a selfpropelled lawn mower.
Report of Mr Peter Honey, Orthopaedic Surgeon to Dr Elsmann, dated 11 May 2015, addressed to Dr Elsmann (Exhibit A3)
This report reads as follows:
Bilateral shoulder pain.
Right long head of biceps rupture.
Thank you for asking me to see Mr Smythe. He is a fellow who suffered injuries realised on the onset of pain at work some years ago. I saw him for a second opinion. He was being treated by Mr Hari Goonatillake at that time. He thought he had NC joint pathology and I thought that the plan to go ahead with shoulder joint arthroscopy and NC joint resection was reasonable, but that plan did not proceed. Exactly why doesn't seem clear today.
He has complained of ongoing pain since then and has been paid to stay home and do nothing. Just recently he was moving his ride on mower and in doing so ruptured his right long head of biceps.
Examination shows that he does have a reasonable range of movement of both sides but that he complains of pain with elevation and has pain through the upper arc of movement. On the right side he has the biceps rupture with a classic Popeye deformity. It does seem to me that his right shoulder is still in need of surgical treatment and if he were to have a procedure there, he could have the biceps tendon repair that the same time. Probably not worth repairing the biceps tendon as a solitary problem, since it is largely a cosmetic deformity with only minor loss of forearm supination and flexion strength.
…
Given that he has consistently complained of shoulder pain and that he never did get to go ahead with surgery that was recommended all those years ago, he should contact his insurer to see if they would fund the surgery now. If not, I will refer him to the hospital clinics for consideration of acromioplasty and NCjoint resection arthroplasty.
X-ray Report of Dr Rohan Vanden Driesen, Radiologist, dated 20 May 2015 (Exhibit A4)
This report reads as follows:
Clinical Details: Biceps rupture. ? Status.
X-RAY OF ORBITS
Findings: No metallic foreign body identified. No contra indication to MRI demonstrated.
MRI OF THE RIGHT SHOULDER
Findings: There is supraspinatus tendinopathy with tendon thickening, signal abnormality and some low grade intralamellar fissuring, but no high grade tear or tendon retraction is seen and muscle bulk is preserved. The infraspinatus is intact. The teres minor is intact. There is minimal intralamellar fissuring of subscapularis which remains intact. The intra-articular portion of the long head of biceps is deficient. A small tendon remnant is seen from the level of the bicipital groove with a small biceps tendon sheath effusion. A larger tendon remnant is seen descending from just below the level of the surgical neck of the humerus. There is a small biceps tendon sheath effusion.
The acromion is of Type I/II morphology with minimal anterolateral down slope. There is mild thickening of the posterior portion of the coracoacromialligament. There is also moderate arthropathy at the acromioclavicular joint with capsular thickening and oedema, irregularity of adjacent bone ends and some undersurface spurring. The combination of changes results in some impingement on the subacromial- subdeltoid bursa, which is thickened and oedematous.
The articular cartilage of the humeral head and glenoid fossa is preserved although there is some posterosuperior labral fraying, and attenuation and some anterior labral fraying and irregularity, but no discrete labral tear or paralabral cyst is seen. No joint effusion or loose body is identified although there is some inferior capsular thickening and signal abnormality, consistent with a degree of capsulitis. The deltoid muscle bulk is preserved.
Comment:
…
MRI RIGHT SHOULDER : 20 May 2015
1.AC joint arthroplasty with undersurface spurring and mild anterolateral acromial down slope with minimal thickening of the coracoacromlal ligament, resulting in some Impingement on the subacromial – subdeltoid bursa, which is thickened and oedematous.
2.Supraspinatus tendinopathy with some intrasubstance fissuring and signal abnormality, but no high grade tear or tendon retraction is seen and muscle bulk remains preserved .
3.Deficiency of the intra-articular portion of the long head of bleeps with a small tendon remnant identified within the bicipital groove and a larger retracted remnant Identified from the level of the surgical neck of the humerus.
4.Posterosuperior and anteroinferior labral fraying and attenuation, but a discrete labral tear or paralabral cyst is not identified.
5.Anterior capsular thickening and signal abnormality, consistent with a degree of capsulitis.
Report of Mr Peter Honey, Orthopaedic Surgeon, addressed to Dr Elsmann, dated 4 June 2015 (T31)
Mr Smythe saw Mr Honey on 4 June 2015 who then prepared a report dated 4 June 2015 (T31) that reads:
Right shoulder impingement, A/C joint degenerative change and biceps rupture.
I saw Mr Smythe again today. He is the fellow who has a long history of right shoulder pain. His most recent MRI scan does show impingement change with A/C joint degenerative change along with biceps tendon rupture (the rupture occurred in February this year).
I think that surgical treatment would be of benefit. That will involve arthroscopic assessment and treatment (acromioplasty, A/C joint resection and biceps tenodesis). I will let you know how things go with that.
Further report of Dr Overmeire, Occupational Therapist, dated 23 June 2015, addressed to Comcare (T34)
Dr Overmeire provided a supplementary report (T34) on 23 June 2015 addressing a further schedule of questions from Comcare and having considered the right shoulder MRI Report of Dr Rohan Vanden Driesen. Dr Overmeire’s report reads:
As you will recall, I assessed him earlier this year and I refer you to my report dated 26 February 2015 for my clinical findings and recommendations.
At the time, the most recently available imaging result was an x-ray report dated 21 April 2005, covering both shoulders. I indicated that a definitive diagnosis was not possible without more updated imaging, but I suspected that his presentation was consistent with bilateral subacromial impingement due to rotator cuff tendinopathy and possible aggravation of age-related AC joint degeneration.
I have now viewed the right shoulder MRI report by Dr Rohan Vanden Driesen at Perth Radiological Clinic, dated 20 May 2015. It reported:
1.AC joint arthropathy with undersurface spurring and mild anterolateral acromial down slope with minimal thickening of the coracoacromia/ligament, resulting in some impingement on the subacromial – subdeltoid bursa, which is thickened and oedematous.
2.Supraspinatus tendinopathy with some intrasubstance fissuring and signal abnormality, but no high grade tear or tendon retraction is seen and muscle bulk remains preserved.
3.Deficiency of the intra-articular portion of the long head of biceps with a small tendon remnant identified within the bicipital groove and a larger retracted remnant identified from the level of the surgical neck of the humerus.
4.Posterosuperior and anteroinferior labral fraying and attenuation, but a discrete labral tear or paralabral cyst is not identified.
5.Anterior capsular thickening and signal abnormality, consistent with a degree of capsulitis.”
No left shoulder imaging is available.
Questions
I now turn to the supplementary questions posed in your letter:
Diagnosis
1. Given this recent information, in your opinion, from what condition does Mr Smythe currently suffer?
The recent right shoulder MRI scan confirms that Mr Smythe suffers from subacromial impingement due to rotator cuff tendinopathy, subacromial bursitis and AC joint degeneration with subacromial spur formation. In addition, there is evidence of degenerative fraying of the labrum and he has a long head of biceps tear.
2. Has his initial condition been superseded by a different condition? If so, please provide your opinion on what factors have contributed to the different condition?
I maintain my opinion that his initial work-related condition has been superseded by progressive, age-related degeneration. In addition, it appears that he has recently torn the long head of biceps tendon. In this regard, I note that he presented with a right upper arm bruise, which he related to a “muscle tear” whilst mowing the lawn recently. This clinical finding is consistent with the imaging findings of a long head of biceps tear. This is not related to his initial work injury.
Employment relationship
1.        Is the condition suffered by Mr Smythe related to:
a)        his employment as a Doorperson or Luggage Porter
b)        factors unrelated to work
c)        a pre-existing, congenital, constitutional or underlying condition
d)        the natural progression of an underlying condition
e)        underlying degeneration as part of the natural ageing process, or
f)         other health issues?
My assessment of the employment relationship of Mr Smythe's bilateral shoulder conditions remains unchanged. I maintain my opinion that the original work incident of 1998 is no longer a significant contributing factor. His deteriorating symptoms are consistent with natural, progressive age-related degeneration of the rotator cuff, glenohumeral and AC joints, which have been identified on the recent right shoulder MRI scan.
2. If you consider Mr Smythe’s employment continues to contribute to his condition, please explain the basis of your conclusion, having regarding to the fact the employment incident occurred on 7 December 1998.
In my opinion, the work-related injury of 7 December 1998 is now a minor contributing factor to his current condition. On the basis of the reported history and available medical documentation, he did report an acute onset of bilateral shoulder pain during the copper coil lifting incident. His symptoms subsequently persisted, despite treatment. It could thus be argued that, had it not been for this incident, Mr Smythe may not have developed shoulder pain. However, I note that there has been a substantial deterioration in his reported symptoms since he ceased work more than 10 years ago. This is accompanied by imaging evidence of degenerative joint changes, outlined above. I thus consider it likely that Mr Smythe would have developed degenerative bilateral shoulder pain by now, regardless of the work incident.
Report of Dr Honey dated 2 July 2015 addressed to Dr Elsmann (T38 at 119)
Dr Honey prepared a further report dated 2 July 2015 (T38 at 119). Dr Honey reported that “there certainly would be an element of the degenerative process here” and “it does seem reasonable to conclude that whilst he may have some age related changes which would have occurred in the interim, his original problem persists.” This report reads as follows:
Shoulder A/C joint impingement, AC joint degenerative change and biceps rupture.
I saw Mr Smythe again today. He remains symptomatic. He has seen a doctor for the insurance company who felt that his symptoms and changes were age-related rather than related to trauma. There certainly would be an element of the degenerative process here, although he is younger than me. However, he did have a recorded work-related injury to his A/C joint and according to the history as he relates it, he has consistently complained of problems since then.
For one reason and another he has never had surgical treatment. His recollection is that this is due to the decisions of others rather than himself. If his recollection of events is true it does seem reasonable to conclude that whilst he may have some age-related changes which have occurred in the interim, his original problem persists and would benefit from surgical treatment.
Comcare Determination dated 17 August 2015 (T42)
On 17 August 2015, Comcare advised Mr Smythe that his compensation payments would cease as a result of recent medical evidence received by Comcare. That letter (the “Determination”) relevantly provided as follows:
Cessation of entitlements
I am following up on recent correspondence Comcare sent to you on 29 July 2015 requesting you to provide further medical evidence to support your current claim(s) for compensation.
Comcare has received correspondence from Orthopaedic Surgeon Peter Honey dated 2 July 2015.
Having assessed the evidence on your claim file, I have determined that your present condition is no longer related to your previous employment at Australian Air Express Pty Ltd.
Comcare accepted liability for 'sprain of shoulder & upper arm (bilateral)’, which you claimed was caused by ‘lifting and moving freight'.
As is standard practice for the purpose of determining applications for Permanent Impairment, Comcare recently arranged for you to attend an independent medical examination with Occupational Physician Dr Steven Overmeire. Dr Overmeire reviewed your current condition, and its relationship to the employment incident of 7 December 1998.
A copy of Dr Overmeire’s report was sent to your General Practitioner Dr Angelika Elsmann on 20 April 2015. Comcare has not received a response from Dr Elsmann.
Medical condition
Occupational Physician Dr Overmeire was asked to provide a diagnosis of your present condition, and in his report dated 26 February 2015 he stated:
On the basis of the available information... it is my opinion that Mr Smythe has bilateral subacromial impingement due to rotator cuff tendinopathy and possible aggravation of age- related AC joint degeneration.
Following your examination with Dr Overmeire, you had an MRI of your right shoulder. A copy of the imaging report was sent to Dr Overmeire for review and he confirmed the following diagnosis:
The recent right shoulder MRI scan confirms that Mr Smythe suffers from subacromial impingement due to rotator cuff tendinopathy, subacromial bursitis and AC joint degeneration with subacromial spur formation. In addition, there is evidence of degenerative fraying of the labrum and he has a long head of biceps tear.
While Dr Elsmann did not provide Comcare with a report, on your most recent medical certificate dated 28 April 2015, Dr Elsmann noted the following:
Bilateral shoulder injury with reduced range of motion in both shoulders and pain in both shoulders.
I consider this to be a description of your symptoms rather than a medical diagnosis of a condition.
In his report dated 2 July 2015, Orthopaedic Surgeon Peter Honey provided a similar diagnosis to Dr Overmeire:
Shoulder A/C joint impingement, A/C joint degenerative change and biceps rupture.
Therefore, I am satisfied that you presently suffer from bilateral subacromial impingement and AC joint degeneration.
Employment relationship
To continue to be entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988, I must also be satisfied that your condition relates to the employment incident of 7 December 1998 at Australian Air Express Pty Ltd.
Occupational Physician Dr Overmeire detailed in his report that he did not consider your present condition to be related to your prior employment. Rather, Dr Overmeire considered that your initial condition has been superseded by progressive, age-related degeneration of the AC joints and rotator cuff:
Given the passage of time since the reported work incident, which occurred more than 16 years ago, it is my opinion that the alleged work incident no longer plays a significant role. The contemporaneous medical evidence and reported history do suggest that manual duties at work triggered the onset of bilateral shoulder symptoms, but the reported deterioration in symptoms since then is consistent with progressive degeneration of the rotator cuff and AC joint.
...the deterioration in symptoms over the past 16 years strongly suggests that his current symptoms are due to progressive, age-related degeneration.
In his supplementary report, after review of your MRI scan, Dr Overmeire maintained his opinion that your present condition is not related to your prior employment at Australian Air Express Pty Ltd:
I maintain my opinion that his initial work-related condition has been superseded by a progressive, age-related degeneration. In addition, it appears that he has recently torn the long head of biceps tendon. In this regard, I note that he presented with a right upper arm bruise, which he related to a 'muscle tear* whilst mowing the lawn recently. This clinical finding is consistent with the imaging findings of a long head of biceps tear. This is not related to his initial work injury.
Dr Overmeire considers that it is likely that you would have developed degenerative bilateral shoulder pain, regardless of the work incident on 7 December 1998.
I acknowledge correspondence from Orthopaedic Surgeon Dr Peter Honey dated 2 July 2015.
Dr Honey considers that ‘there certainly would be an element of the degenerative process here', although continues to attribute your present symptoms to your previous employment.
However, Dr Honey does not provide reason to support his opinion, and on this basis I prefer the opinion of Dr Overmeire, which is supported by recent medical imaging and clinical justification.
Incapacity
Even if I am satisfied that you continue to suffer from a work-related condition, I am not satisfied that you are totally unfit for work as a result of the condition.
On the most recent medical certificate, Dr Elsmann stated that you are fit to work 2 hours per day, 5 days a week.
However, I prefer the opinion of Dr Overmeire in his capacity as a medical specialist of Occupational Medicine. Dr Overmeire stated that you have capacity for full time alternative work duties:
In my opinion, Mr Smythe has the capacity to work 40 hours per week if the restrictions can be accommodated. Although he may experience ongoing shoulder discomfort, as he does at present during domestic and gardening tasks, there is no medical contraindication to Mr Smythe working 40 hours per week.
Therefore, in accordance with the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) on 17 August 2015 I have determined:
·you have no present entitlement to compensation in respect of medical expenses under section 16 of the SRC Act, and
·you have no present entitlement to compensation for incapacity payments under section 19 of the SRC Act
Letter from Mr Smythe dated 5 September 2015 (T43) seeking reconsideration of the Determination of 17 August 2015
By letter dated 5 September 2015 (T43), Mr Smythe, through his wife, Ms Zupins, sought reconsideration of the Determination dated 17 August 2015. Those submissions read:
Mr. Smythe disagrees with this determination and hereby requests a reconsideration of this determination.
Mr. Smythe presents the following information in support of his claim: Correspondence from Specialist Orthopaedic Surgeon Mr. Peter Honey dated 02^nd [sic] July 2015.
Mr. Peter Honey a highly respected “Specialist Orthopaedic Surgeon” with profound experience and expertise in trauma related injury commissioned the MRI scan conducted on 20th May.
And following review of this MRI, and consultation with Mr. Smythe, Mr. Honey states:
“Shoulder A/C joint impingement, A/C joint degenerative change and biceps rupture.
He remains symptomatic. He has seen a doctor for the. insurance company who felt that his symptoms and changes were age related rather than related to trauma. There certainly would be an element of the degenerative process here, although he is younger than me! However, he does have a recorded work-related injury to his A/C joint and according to the history as he relates it, he has consistently complained of problems since then”.
And,
“...whilst he may have some age-related changes which have occurred in the interim, his original problem persists and would benefit from surgical treatment.”
Ms. Menzies states:
“… he (Mr. Honey) continues to attribute your present symptoms to your previous employment.
However, Dr. Honey does not provide reason to support his opinion, and on this basis I prefer the opinion of Dr. Overmeire, which is supported by recent medical imaging and clinical justification.”
Mr. Honey has provided his opinion based on his own visual assessment the MRI scan that was conducted at his requested and a physical examination of Mr. Smythe. Mr. Honey's statement is also supported by his extensive experience and expertise in his capacity as a “Specialist Orthopaedic Surgeon” and by Mr. Smythe’s recorded current and past medical history and documentation of prior consultations with Mr. Honey.
The opinion of Dr. Overmeire cannot be considered to override those expressed by Mr. Honey as he does not possess the relevant medical training or expertise-that would be required to challenge that of Mr. Honey. Dr. Overmeire has also based his opinion on the written MRI report of a third party and on his very brief 15 minute consultation that included a highly questionable physical assessment of Mr. Smythe
Dr. Overmiere [sic] has not provided any credible clinical medical justification or evidence to substantiate his opinion.
Mr. Smythe re asserts that:
All reports submitted by Dr. Overmiere [sic] to Comcare in relation to his claim for compensation must be deemed invalid and excluded when making or considering any and all determinations as their basis lies in a questionable physical assessment conducted by Dr. Overmiere [sic] on 23rd February 2015.
This examination was arranged by Comcare after Mr. Smythe requested an assessment for “permanent impairment”.
On presentation for his assessment on 23rd February 2015, Mr. Smythe informed Dr. Overmeire that he thought that he had torn a muscle in his right arm 2 days prior to this appointment. At the time Mr. Smythe was unaware that he was suffering with a spontaneous rupture of the long head of his right bicep -the existence of which has since been confirmed by the MRI scan conducted at the request of Mr. Peter Honey Orthopaedic Surgeon on 20th May, 2015.
Dr. Overmeire did not attempt any visual or physical assessment of Mr. Smythe’s reported injury; any form of examination would have identified a large “Popey [sic] deformity” with extensive bruising extending from his right shoulder to elbow.
As movement of his right arm and shoulder was extremely painful and very limited, Mr. Smythe had assumed that this examination would be deferred until his symptoms had subsided and was quite shocked and surprised when Dr. Overmeire appeared disinterested and blasé about his injury and proceeded with the consultation.
Dr. Overmeire reports that on 26^th February 2015 he conducted a physical examination of Mr. Smythe and noted:
•A protracted neck posture with no reported palpation tenderness, no palpable muscle spasm, a demonstrated full range of neck movement and bilateral neck pain on rotation.
•Upper limb tension testing was negative bilaterally and upper limb neurological examination was normal.
•He noted a protracted shoulder posture with no evidence of asymmetrical muscle wasting
•He reports a bilateral prominence of the AC joins, which were not tender to palpatiation [sic] and the Mr. Smythe reported tenderness over the greater tuberosisites bilaterally.
Dr. Overmeire reported active shoulder motion measured with a goniometer as the following:

The Tribunal was greatly assisted by the written closing decisions prepared by counsel for both parties. Clear written submissions are particularly important when the Tribunal has not had, as was the case here, the benefit of actually hearing a matter but relies instead on a recorded transcript of proceedings.
As correctly summarised by counsel for Comcare, the issue before the Tribunal is whether the accepted injury from December 1998 of “sprain of shoulder and upper arm (bilateral)” continues to be an effective or operative cause of any incapacity that Mr Smythe continues to suffer. There is no dispute that there is a level of incapacity or that Mr Smythe is in pain. The real question is what causes his incapacity. The question of how incapacitating is not an area covered for the purposes of this decision.
The relevant legislative test in this regard is outlined in McAuliffe v Comcare [2002] FCA 769, wherein the Federal Court adopted the following observations of the NSW Court of Appeal in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (at 463-464) as follows:
Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase 'results from', is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death 'results from' a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death 'results from' the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions. Applying the second principle which Hart and Honore identity, a point will sometimes be reached where the link in the chain of causation becomes so attenuated that, for legal purposes, it will be held that the causative connection has been snapped. This may be explained in terms of the happening of a novus actus. Or it may be explained in terms of want of sufficient connection. But in each case, the judge deciding the matter, will do well to return, as McHugh JA advised, to the statutory formula and to ask the question whether the disputed incapacity or death 'resulted from' the work injury which is impugned.
Further, in Ilsley v Wattyl Australia Pty Ltd (1997) 144 ALR 510, the Full Federal Court said that where there may be multiple causes for an incapacity, an “injury” will only be a cause of the incapacity if it has “remained an effective or operative cause of the incapacity”
Counsel for Comcare, relying predominantly on the medical evidence of Dr Overmeire, Occupational Physician, contends that although the considerable evidence before the tribunal (spanning almost 20 years) involved five different medical witnesses, ultimately this is a case about the facts rather than medical opinions.
According to Comcare, the key factual question here is whether there has been a substantial deterioration in or worsening of Mr Smythe’s shoulder condition since 1999. Comcare suggests that to the extent that deterioration can be found, this is evidence of age-related degeneration which has intervened to take over from the injury-related effects of the accepted injury. This is perhaps best explained in Mr Black’s outline of submissions as follows:
20.The facts of this case accord with the final conclusion of Dr Overmeire. He accepted that the Accepted Injury triggered the onset of shoulder symptoms. He then, it is submitted, correctly proceeded on the basis that there had subsequently been a substantial deterioration in the Applicant's condition. He concluded that the “deterioration in symptoms over the past 16 years strongly suggests that his current symptoms are due to progressive, age-related degeneration”
21.As well as being consistent with the facts, Dr Overmeire's opinion is a balanced one. He was not dogmatic. He acknowledged that the Accepted Injury might play a minor role in the Applicant's current presentation. However, he correctly identified the significant deterioration of the Applicant's condition over the past 16 years (at the time of his report) as indicating that the role of the Accepted Injury was no longer of any real importance as a cause of the Applicant's incapacity. The Respondent submits that the opinion of Dr Overmeire should be accepted as one that is soundly-reasoned and consistent with the known facts.
In contending that Dr Overmeire’s conclusions in relation to deterioration and age related degeneration are consistent with the facts, Comcare relies on the following summary from Mr Black’s outline of submissions:
There are three main reasons why the Tribunal should … find that the Applicant's shoulder condition has worsened substantially since 1998 and 1999.
11.First, the Applicant has incorrectly claimed that his neck condition had its onset in December 1998. That claim is demonstrably wrong:
(a)The Applicant's claim form, completed and lodged in December 1998, identified only the shoulders as being affected.
(b)Mr Honey, in July 1999, found the Applicant to have a good range of movement in his neck with no pain. Although he was not specifically looking for neck problems, Mr Honey confirmed in oral evidence that he certainly would have noted if the Applicant had a stiff neck.
(c)Even by March 2002, clinical assessments were not identifying any significant problem with the Applicant's neck.
(d)There is no contemporaneous evidence whatsoever to indicate that the onset of the Applicant's symptomatic neck condition was as early as 1999.
12.In the face of that incontrovertible evidence, the Respondent submits that a finding should be made that the Applicant's symptomatic neck condition had its onset some time after 2002. The Applicant's claim and recollection of the condition having its onset in 1998 or 1999 is wrong. Of course, the neck condition is, in any event, not a compensable condition. The significance, though, of the Applicant's mistaken recollection of the timing of his neck condition is this: his unreliability on that issue casts serious doubt on the reliability of his recollection of the timing of the onset of symptoms related to his shoulders. [emphasis added].
13.Second, there is compelling evidence that in 1999 the Applicant's symptoms related largely to his left shoulder with the right shoulder far less affected:
(a)Mr Honey's evidence was that, as at July 1999, he only identified the left shoulder as problematic. He agreed that the right shoulder did not have any significant issues in 1999. His letter of 20 July 1999 makes that clear.
(b) Mr Hardcastle's report of 21 March 2002 is also focused on the left shoulder, with it being noted that symptoms in the right shoulder had not been as severe.
14.In contrast, neither the Applicant in his own evidence nor Mr Slinger in his assessment identifies any distinction in the current symptoms as between the left and right shoulders. Indeed, Mr Honey, in his oral evidence, agreed that on his assessments between 1999 and 2016 the condition of the right shoulder had worsened. This again puts the Applicant's reliability about the timing of symptoms in serious doubt and suggests that his recollection of having static symptoms since 1998 or 1999. [emphasis added].
15.Third, the Applicant's assertion that his symptoms have at all relevant times been the same as now is inconsistent with the contemporaneous medical records:
(a)Clinical examinations have identified a deterioration in the Applicant's range of motion in his shoulders since the original injury. Mr Slinger suggested that the deterioration could be a result simply of non-use of the limbs, although his own examination found no wasting at either shoulder. He also accepted that the deterioration in range of motion could be a sign of deterioration of the shoulder condition. In any event, the demonstrable reduction in range motion of the shoulders over time is inconsistent with the Applicant's recollection of his condition remaining static.
(b)In March 2002, the Applicant was reporting as being able to drive for 1 hour. He now reports that he is able to drive for no more than 30 minutes. In cross-examination, the Applicant attempted to distance himself from the contemporaneous record of him being able to drive for I hour. However, it is more likely that the Applicant's recollection is mistaken and that record is accurate.
(c)The Applicant previously managed his condition without (or with minimal) medication, with a record in November 2002 that he “is currently not taking any medication or receiving any other treatment”. Similarly, medical certificates signed by the treating GP did not identify any medication usage. Now, however, he reports requiring medication including a combination paracetamol/codeine tablet, ibuprofen daily, Voltaren twice a day, and Voltaren liquid capsules every 4-6 hours 22 His need for medication has increased to the point where he is “sometimes concerned about the amount of medication that I take to get by”. Whilst the Applicant attempted to distance himself from the changed medication regime by suggested that he previously medicated with alcohol, the objective evidence shows an increased need for pain-relief medication.
(d)In March 2002, Mr Hardcastle recorded the Applicant as saying he was able to “prepare meals, wash clothes and dishes and carry shopping bags” as well as being able to mow and weed and prune the garden with his right hand. The Applicant initially gave evidence (by adopting his written statement) that he “can no longer do anything around the house”. When confronted with that inconsistency in cross-examination, the Applicant attempted to explain it away as meaning he could not do maintenance around the house. The clear indication, though, is that his capacity to carry out household tasks has reduced over time since 2002.
(e)The Applicant gave evidence that his sleep is affected to such a degree by his pain that he is unable to get more than 2 hours sleep in a row. He asserted that the impact had come on immediately after December 1998, but there are simply no records from that time to corroborate the claim. To the contrary, Mr Honey's letter of 20 July 1999 is silent on the point, despite Mr Honey accepting in oral evidence that he would have noted any particularly severe pain.
(f)Significantly, the Applicant gave evidence that he now needs help with showering and personal care. His evidence was that this need arose immediately after December 1998. However, the contemporaneous records do not bear out that claim. There is no mention of such an impact in Mr Honey's letter of 20 July 1999, nor in Mr Hardcastle's report of March 2002.28 Given the significance of this impact on the Applicant's life, it is almost inconceivable that it would not have been mentioned to, and recorded, by his treating doctors during that time.
(g)Dr Elsmann noted on 12 August 2014 that the shoulders were “progressively getting worse” She also issued medical certificates that reflected a deterioration in the Applicant's capacities: thus, a medical certificate of 28 July 2008 allowed for 20 hours work per week with a lifting limit of 15kg; a medical certificate of 31 July 2009 maintained the 20 hours limit but reduced the lifting limit to 6kg; and a medical certificate of 4 August 2010 reduced the limit to 10 hours per week That evidence, from the Applicant's treated GP, is again consistent only with a deterioration in the Applicant's condition over time.
16.The Applicant may have convinced himself that his current symptoms manifested immediately and suddenly in December 1998 and have remained static ever since. The objective, contemporaneous evidence, however, is inconsistent with that proposition.
…
24.The Respondent submits that, in light of the substantial deterioration in the Applicant's condition over time and the other intervening factors, this is a case where- now some 18.5 years after the Accepted Injury- a point has been reached where the causal link has become so attenuated that, for the purposes of the Act, it should be held that the causative connection has been snapped.
Mr Smythe rejects these assertions and contends that his condition has remained largely static since December 1998, despite some admitted fluctuations over time, and that the effects of the accepted injury incapacitate him and require treatment. His position was best summarised by Mr Bruns in written closing submissions as follows:
3.In this case, the applicant relies particularly on two important treating doctors:
(a) his GP, Dr Elsmann who has had the applicant as a patient at various surgeries December 1997 to the present. [ts 45-46]
(b) Mr Honey, an eminent shoulder surgeon, to whom the applicant was first referred by Dr Elsmann in July 1999 and who last saw him in January 2016. [ts 36]
4.Neither of those witnesses thought that the effects of the accident had been overtaken by age-related degeneration. Dr Elsmann wrote, "very little has changed in his shoulder symptoms" [Ex 6]. Mr Honey wrote, "his original problem persists and would benefit from surgical treatment". [T38]
5.The reviewable decision [T47] was based on reports from Dr Overmeire and the respondent continues to rely on Dr Overmeire primarily. His key opinion can be found on p72 of Exhibit 2:
His current condition is due to a combination of the work incident and age-related degeneration of the A C joints and rotator cuff. It is not possible to specifically isolate the extent to which his current condition is due to either of these components, but given that he reports deteriorating symptoms, I consider the age-related degenerative process to be the more significant contributing factor at present.
6. The background to that opinion is marked by a number of curious features:
(a) Dr Overmeire saw the applicant only once (on 23 February 2015) in contrast to the multiple attendances over two decades by Dr Elsmann and Mr Honey.
(b) The purpose of the review was to undertake an assessment for impairment, not to assess the cause of symptoms or need for treatment. [see p63, Ex 2]
(c) He says that the applicant reported "deteriorating symptoms" but both the applicant and his wife deny that he said that [ts 5 and Tl9 respectively], Dr Overmeire's notes are equivocal.
(d) Dr Overmeire agrees that deteriorating symptoms were an important part of forming his opinion. [ts 70]
(e)The applicant ruptured a tendon in his upper arm two days before the Overmeire examination. He [ts 6] and his wife [T40] say that they told Dr Overmeire that moving his right arm would be extremely painful and limited as a result. Dr Overmeire' s notes do not record any complaints of that nature and he does not recall them, although he does recall a bruise [ts 69-70]. He says it would not be relevant for a ''permanent impairment assessment".
7.Not only did the applicant not tell Dr Overmeire that his symptoms were deteriorating (other than his right arm owing to the tendon rupture) but there is no other convincing evidence that his overall condition deteriorated to a substantial extent, although there might well have been fluctuations from time to time. The respondent suggests that Mr Honey "agreed" that the condition of the right shoulder had worsened. The applicant does not accept that but does point to the evidence of Mr Honey and Mr Slinger in relation to both shoulders stiffening through lack of use – accident-caused and quite different from age-related degeneration.
In oral submissions, Mr Bruns also argued:
Looking at the evidence we have the evidence of the applicant, consistently, that he has been suffering the same symptoms.
He even allowed that there might have been a little bit of deterioration with age, but he emphasised at the end of his cross-examination the pain in his shoulders has not got significantly worse since 1999, and the range of movement has not got significantly worse since 1999, and of course we are talking about significant changes. The evidence of the applicant is supported by Margaret Zupens. She has talked about the change in the household, about his need for domestic assistance. All the way from 1999 there’s no suggestion that the needs have increased over the years, with the exception of the biceps tendon rupture in 2015 which obviously is a separate issue.
(21 June 2017 Transcript at 75)
Mr Bruns continued in relation to Mr Black’s assertion that Mr Smythe gave conflicting evidence over the years as follows:
… the second pillar is that the applicant himself has said things. Well, there’s very little substantiation of that. The question of whether he said he was able to drive for one hour on one occasion and only 30 minutes on another I would submit is trivial, but in any event, the evidence that he did that is weak. The suggestion that he was not taking any medication or he – at one point, and he was at another, again is very non-specific, and no doctor has really drawn any conclusions from that. The question of what he can do around the house again is quite unclear. I would submit the applicant’s interpretation of “I can no longer do anything around the house” as meaning maintenance work is perfectly plausible, and that is strengthened, perhaps, by the fact that he deals at paragraph 91 with the idea of “I have trouble helping out at home now.” Helping out at home might well refer to chores in the kitchen or something, whereas anything around the house quite plausibly could mean maintenance, but we certainly can’t say that it was a complete inconsistency there.
Sleep is affected because there are no records. Well, why should there be records. There seems to be an assumption that there would be records on that. He didn’t need showering initially because there are no records. Well, there are no records, we can’t assume anything about that.
(21 June 2017 Transcript at 84)
The Tribunal agrees. There is nothing in the transcript of this proceeding that leads it to question the credibility of either Mr Smythe or his wife. This experience has clearly been distressing for the couple and while they might at times have come across as annoyed by the questions they were asked by counsel, their evidence appeared sound and consistent throughout the course of this entire matter. Neither altered their position under extensive cross examination. Mr Smythe’s evidence, supported by his wife, is that his pain and symptoms have not significantly changed since his injury in 1998. There have been moments in time when the pain seemed worse but overall it has remained consistent, as has the support his wife has given him over the years. Nor does the Tribunal accept that Mr Smythe’s memory is flawed or his version of events unusual. The way in which he responded to and dealt with the multiple medical experts he saw over the years struck the Tribunal as entirely reasonable for someone who is not medically trained and who was frustrated with a painful medical condition.
The Tribunal attaches no weight to the medical evidence of Dr Gabbay. This evidence was presented very late in the piece and no opportunity was presented for cross-examination. Insufficient time for scrutiny has been provided. It is thus of little objective value to the Tribunal.

Similarly, Dr Philip Hardcastle was not called as a witness and admits in his written medical reports that his conclusions were drawn without proper X-ray imaging and on the basis of incomplete medical evidence. In these circumstances, the Tribunal attaches very little weight to the evidence of Dr Hardcastle.
In relation to Mr Kelman, the Tribunal notes Mr Bruns summary in oral closing submissions as follows:
… the basis of Mr Kelman’s evidence is very much in dispute. He sees capsulitis; Mr Slinger and Mr Honey did not see capsulitis. Of course, there might, as the scan said, be a degree of capsulitis, although in fact the scan – all the scan says – the author of the scan report says that the appearances are consistent with a degree of capsulitis. But Mr Slinger and Mr Honey thought it wasn’t a problem, and even Mr Kelman would have to concede that if it has lasted this long, it’s beyond his two-year expectation and is unlikely to be capsulitis.
…
… I would submit that there has been a certain amount of disarray in the assembly of the evidence by Mr Kelman. He obviously prepared an initial report where he relied on capsulitis and attributed it to 1998. He then was urged to revise that opinion and seems to have attributed the problem to something that happened in 2005, then recognising that that wasn’t supported by evidence, he has written a third report which attributes it to something in 2012, and in the witness box he is telling us that when he said 2012 – well, I must confess I’m not sure what he’s saying – he might have meant 2015, he might have meant the lawn mowing incident, but he can’t explain why he then referred to putting an item up on a shelf above shoulder height, which certainly wouldn’t have been a lawn more.
So his report, his final report, we were told, which supersedes earlier reports, relies very heavily on this idea that in 2012, or it may have been 2015, he was able to lift his arms up above shoulder height, as demonstrated by his ability to put an item up on the shelf. But of course he cannot point us to the source of that information, and I submit there is no source, there was no incident of putting an item up on a shelf. And in my submission the whole basis for Mr Kelman’s latest opinion falls away. He agrees that he relied, to some extent, on believing that the applicant had worked for 30 years as a sheet metal worker. He agrees that that cannot be true. It would be very unsafe, in my submission, to rely on Mr Kelman’s opinions at all.
(21 June 2017 Transcript at 75 -76)
The Tribunal agrees. The Tribunal has very real concerns about the evidence presented by Mr Kelman. As accurately described by counsel for Mr Smythe, his evidence reflects “a certain amount of disarray”. Indeed, Mr Kelman’s evidence was inconsistent and factually questionable. He appears to base his findings on one or more incidents that did not occur, a misunderstanding of Mr Smythe’s employment record and a misunderstanding of the effects and reasons for capsulitis – a medical conclusion rejected by both Mr Slinger and Mr Honey and ultimately questioned by Mr Kelman himself under cross examination – conceding that if it had lasted this long, it’s beyond his own two-year expectation and thus unlikely to be capsulitis. In the circumstances, the entirety of his medical evidence is most unhelpful. The Tribunal accordingly attaches little weight to it.
The Tribunal also finds Dr Overmeire’s evidence to be problematic. As summarised by Mr Bruns:
Dr Overmeire has given an opinion, essentially, on the role of age-related degeneration, but I would submit that his opinion also is flawed. There is the complicating factor of the biceps tendon rupture, it is clear from his evidence that he cannot clearly remember what he was told about that on the day. It is clear that he is clinging to the idea that he was told something about the symptoms overall getting worse, that part is denied by the applicant and by his wife, who were present, they say he never said his shoulders, as a whole, was getting worse over the years. He said that he had a sore arm because of what we now know to be a tendon tear. Dr Overmeire freely admits that the purpose of the examination was to do an assessment of whole person impairment, and from that point of view the whole exercise in doing – all the comments on degeneration weren’t directly relevant.
But he expressed those views and one can see relied very heavily on this idea that there was a reported deterioration of symptoms over the years. By the end that had become a substantial deterioration of symptoms. I would suggest that the basis of that opinion has become very frayed, it is not supported by his notes, that there were – that something was said about his symptoms a whole deteriorating over the years, it was just the one word “deteriorating”, which might be consistent with being told about a separate arm problem. Dr Overmeire also conceded that orthopaedic surgeons might have an advantage over him when it came to diagnosing shoulder conditions, and no one doubts the expertise of Mr Slinger and Mr Honey in that regard.
(21 June 2017 Transcript at 76)
Overall, Dr Overmeire seems to base much of his conclusion (ie, that Mr Smythe now suffers age related degeneration) on the belief that Mr Smythe’s physical condition has significantly deteriorated. His approach in this regard struck the Tribunal as perplexing. It is not entirely clear on Dr Overmeire’s evidence, for example, why a “deterioration” equates to “age related degeneration”. It might, for example, simply mean that the original injury has deteriorated through lack of use. This was not explained by Dr Overmeire. Further, it is not entirely clear to the Tribunal why Dr Overmeire concluded that there had indeed been a deterioration. Mr Smythe and his wife gave convincing evidence that other than the occasional fluctuation, little, physically, had changed between 1998 and 2017. On the evidence, it appears that to the extent that Mr Smythe appeared less physically mobile during Dr Overmeire’s one, relatively short physical examination of him, this was due to the fact that he had torn his bicep – something which, oddly, Mr Overmeire as an Occupational Physician, failed to notice and which, even more oddly, he dismisses as largely not significant when brought to his attention. The cross examination of Dr Overmeire was forensically exceptional. It revealed Dr’s Overmeire’s clinical notes to be flawed and his memory of what was and was not said when examining Mr Smythe to be vague and confused. He also admitted that as an Occupational Specialist, he deferred to the expertise of Mr Honey and Mr Slinger – both of whom are orthopaedic surgeons.
The Tribunal prefers the evidence of Dr Elsmann (Mr Smythe’s General Practitioner over a lengthy period of time), Mr Slinger and Mr Honey (both highly regarded orthopaedic surgeons).
Dr Elsmann was Mr Smythe’s General Practitioner for almost 15 years. Her evidence is consistent that Mr Smythe continues to suffer from the effects of his 1998 workplace injury to both shoulders and that his condition has not significantly changed over the years. It appeared in cross examination that she had indicated in one of her reports that Mr Smythe’s condition had become worse with time. This was clarified by Mr Bruns during re-examination by Mr Bruns who accurately summarises the position as follows in oral closing submissions:
So we have the GP, it’s remarkable in a sense that we have a GP who has had that length of contact with a patient, but she said in her report, which is exhibit 6, that the condition was stable over the time she saw him. Now, my learned friend has drawn attention to a particular entry, just one entry over the 17 years or whatever, when she is recorded as having said it was getting worse, but I would submit that cannot override her whole opinion, which has been the shoulder has been stable over the entire time. And it should be recalled that she raised the phenomenon of the shoulder being worse during winter or worse from driving, so she certainly allowed for fluctuations, and we can only assume that that’s the kind of thing we were seeing at that moment in August – I think it was August 2012. 2014, I’m sorry.
(21 June 2017 Transcript at 76)
Elsewhere, Mr Bruns concluded:
So really we’re left with that note of Dr Ellsman’s on 12 August 2014 first, perhaps, and secondly Dr Overmeire saying what he said about deteriorating symptoms. … As for Dr Ellsman, that’s not Dr Ellsman’s opinion that we’re talking about there, that’s supposedly a quote from the applicant. So the point that my learned friend might want to adopt is not that a doctor has noticed a deterioration, in fact no doctor has noticed a significant deterioration, but that the applicant himself has contradicted himself by telling the doctor that he was getting worse.
Well, my submission is the applicant has allowed that with age we all get worse. It’s conceivable that he was just talking about that kind of thing. He was not cross-examined on it. It could be that we’re all suffering through only having had these documents for a few days, but he wasn’t asked to comment on it, and it’s – he’s the one who should have commented on it, not Dr Ellsman. She was merely recording what he said or supposedly recording what he said. So in the end I would suggest that carries little weight because insofar as it’s a quote from the applicant, he wasn’t given an opportunity to explain it.
(21 June 2017 Transcript at 84)
The Tribunal has before it two scenarios above. One is that Mr Smythe suffered from some fluctuations over time and this is what Dr Elsmann is referring to. The other is that Dr Elsmann may have recorded something that Mr Smythe said that arguably contradicts all of his previous statements to her. On the entire evidence, either is entirely plausible. Dr Elsmann does indicate in her evidence that there were fluctuations over time but not significant, permanent changes as Mr Smythe ages. It is also possible that Mr Smythe simply misstated or did not clearly explain his symptoms. It is unclear on the evidence and little weight can thus be placed on one line that might signal a worsening condition when so much of the other evidence is silent on the issue of a worsening condition. It is almost inconceivable that a GP who has seen a patient for 17 years would not have noticed significant physical change and commented accordingly in her clinical notes over an extended period of time. The Tribunal has no reason to doubt Dr Elsmann’s professional credibility. Little weight can be attached to one diary entry that arguably mentions some sort of “worsening” given Dr Elsmann’s clear evidence that this was not the case.
In relation to Mr Slinger, the Tribunal notes Mr Bruns’ contentions as follows:
Mr Slinger, in his report, had stated that the condition of the shoulders related specifically to 7 December 1998. He amplified that in his evidence and he introduced perhaps an aspect that should be kept in mind that the very fact you have pain in your shoulders from 1998 will inevitably mean that you use them less and that they stiffen up. This isn’t age-related degeneration, it’s degeneration caused by the injury degeneration – I’m using in a very loose sense. So he was in no doubt that 1998 was still the primary cause of the state when he examined him. There was some attempt to apportion between necks and shoulders, and the shoulders he certainly gave the greater part of the apportionment to. But he continued to say that in the absence of the injury there would be no reason to anticipate that the applicant would be in the current state, and in that sense he continued to adhere to his report from 2016.
(21 June 2017 Transcript at 75)
Mr Slinger presented with clarity and common sense. The Tribunal notes, in particular, his response to Mr Bruns when asked about “deterioration” as follows:
MR BRUNS: There’s been a suggestion that if measurements of range of movement decline over time that might mean that the condition is different or worse or the pain is worse. What would you say about that?
MR SLINGER: In maybe all of those, but most likely … because of lack of use; if you don’t use it you lose it. And if you’ve got a painful stiff joint, and it’s painful to move it you’re going to move it less and you’re going to get muscle atrophy wasting; it’s going to aggravate the symptoms and it’s going to become a vicious circle, so it may increase the time progress of time, not because of changes in the underlying process but changes in the condition of the joint of a patient.
(20 June 2017 Transcript at 29)
The Tribunal also notes Mr Slinger’s evidence about Mr Smythe’s current condition when cross examined by Mr Black, as follows:
MR SLINGER: No, as I said before, his injury was what caused his symptoms and his pathology. His continuing symptoms relate to that injury. Now, you’re just suggesting his symptoms have increased as in the pain and stiffness; that may be simply progression because of his inactivity. As I said, if you don’t use it you lose it. It’s possible also the degenerative changes in his shoulder have increased, produced and accelerated by that injury. If he hadn’t had the injury he may not have had that accelerated degenerative change. So, yes and no.
….
MR SLINGER: I can say that in the absence of the injury there’s no reason I would anticipate he would be in his present condition, yes.
(20 June 2017 Transcript at 32 – 33)
The Tribunal attaches considerable weight to these comments. Mr Slinger is a highly regarded, objective orthopaedic surgeon. There is no reason to doubt his findings in relation to Mr Smythe.
In relation to Mr Honey, the Tribunal notes Mr Black’s submissions that Mr Honey's evidence was that, as at July 1999, he only identified the left shoulder as problematic and that he agreed that the right shoulder did not have any significant issues in 1999. This, Mr Black contends, puts Mr Smythe’s reliability about the timing of symptoms in serious doubt and suggests that his recollection of having static symptoms since 1998 or 1999.
Mr Bruns, in turn, responded as follows:
Mr Honey … has written in his report, which is T38, that the original problem persists, and he would benefit from surgical treatment. And I would suggest that is a striking fact, that in 1999 Mr Honey, a respected specialist and surgeon, saw the applicant, prescribed surgery, and in 2015 he sees the applicant again and he still prescribes the same surgery. Now, it would seem he was referred – the applicant was referred to Mr Honey specifically for the left shoulder, which appears from all the evidence was the more troublesome in the early stages, that doesn’t alter the fact that there was a bilateral problem, of course, because there is much contemporaneous evidence of the bilateral problem. But Mr Honey took a measured approach and he said that certainly the shoulder was not dramatically worse between 1999 and 2015, he still thought it was an acromioclavicular problem.
(21 June 2017 Transcript at 75)
Elsewhere, Mr Bruns states:
The question with the shoulders, however, the second of my learned friend’s points, I would suggest there’s nothing in that. It has been accepted as a bilateral claim all along. The consistent evidence was that the left was worse at first, and that is the explanation for Mr Honey only having looked at the left shoulder. It seems clear that Mr Honey was quite concerned with what his job was, and if he wasn’t asked to look at the neck then he wasn’t particularly interested at looking at the neck. Merely he told us as to whether it was related to a shoulder problem. And similarly, if he wasn’t asked to look at the right shoulder, he wouldn’t have looked at the right shoulder. And all these suggestions that Mr Honey would have noted this or Mr Honey would have asked about that, I would suggest are misplaced. We can’t assume things like that.
(21 June 2017 Transcript at 83)
Mr Bruns concludes as follows:
The question, as I say, there has always been complaints about both shoulders and the question of whether one fluctuates more than the other is not really the point in these proceedings. Insofar as Mr Honey might have said that something had worsened, the note I think we’re relying on is maybe there was some extra stiffness. But as we’ve heard, stiffness could be caused by lack of use, or it could be caused by degeneration, the result of 1998. My note is that he said as to deterioration it might be stiffer, but it’s not dramatically worse between 1999 and 2015. So we’re not talking about a very major change. And indeed the – well, I think the twin pillars on which my learned friend’s proposition that there has been a deterioration rest, that the range of movement has changed, firstly. Well, I would suggest there’s no clear medical evidence that because the range of movement has changed that must mean a deterioration due to age-related degeneration that would be making too many assumptions. It might be, as Mr Slinger says, just a stiffness through lack of use.
(21 June 2017 Transcript at 83)
The Tribunal was impressed with Mr Honey’s evidence and agrees with Mr Bruns assertions that Mr Honey should not be seen as either evidence of unreliability or a significant deterioration in Mr Smythe’s physical condition. Mr Honey makes it clear that in his opinion, Mr Smythe’s "original problem persists and would benefit from surgical treatment". The Tribunal agrees.
FINDINGS
On the basis of the evidence before as canvassed above, the Tribunal finds that Mr Smythe was injured in a work related incident in late 1998. Comcare accepted, rightfully so on the evidence, liability for medical treatment and incapacity payments in relation to a previously accepted “sprain of shoulder and upper arm (bilateral)” (the “accepted injury”) – the date of the injury being 7 December 1998.
The Tribunal finds that Mr Smythe remains incapacitated as a result of the accepted injury and in need of ongoing medical treatment. The Tribunal rejects Comcare’s contention that age related degeneration is now the source of Mr Smythe’s incapacity.
DECISION
For the reasons outlined above, the decision under review is set aside. In substitution, it is determined that liability continues for incapacity payments and medical treatment as a result of the accepted injury pursuant to section 16 and 19 of the SRC Act.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall

....[sgd]................................................................
Administrative Assistant – Legal
Dated: 30 November 2017

Dates of hearing: 20-21 June 2017 & 5 October 2017

Counsel for the Applicant: Mr D Bruns

Representative for the Applicant: Ms K Dempster

Solicitors for the Applicant: JDK Legal Services

Counsel for the Respondent: Mr M Black

Representative for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 2413

30 November 2017

Key Legal Topics

Areas of Law

Employment Law

Administrative Law

Legal Concepts

Causation

Statutory Construction

Remedies

Judicial Review

Dates of hearing:	20-21 June 2017 & 5 October 2017
Counsel for the Applicant:	Mr D Bruns
Representative for the Applicant:	Ms K Dempster
Solicitors for the Applicant:	JDK Legal Services
Counsel for the Respondent:	Mr M Black
Representative for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers