Spencer and Comcare and Adi Limited Party Joined
[2000] AATA 814
•13 September 2000
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2000] AATA 814
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1998/1035 & V2000/0589
GENERAL ADMINISTRATIVE DIVISION ) Re ARTHUR SPENCER Applicant
And COMCARE Respondent
And ADI LIMITED Party Joined
DECISION
Tribunal Mr J. Handley, Senior Member Date13 September 2000
PlaceMelbourne
Decision The decision under review in application V1998/1035 is set aside and in substitution it is decided that the applicant had a continuing entitlement to compensation.
The decision under review in application V2000/0589 is varied and it is decided that the effects of injury did not cease at 28 February 1997. In lieu of that decision it is decided that the applicant suffers continuing effects of the injuries.
The respondents shall pay the applicant’s costs pursuant to the Practice Direction of the Tribunal.
..…Sgd. Mr J. Handley…..
Senior Member
COMPENSATION: Injury at work; reported, not claimed the immediate incapacity; employer subsequently issued with a licence by Comcare; further report of injury and claim; continuing employment; whether effects of injury ceased; whether employer or Comcare liable; decision set aside and varied.
Safety Rehabilitation and Compensation Act 1998 s107A, s24
REASONS FOR DECISION
13 September 2000 Mr J. Handley, Senior Member 1. As may be seen from above the employer of the applicant is a party to these proceedings. That would indicate that these applications are relatively unusual. This is because an issue emerged prior to the hearing as to whether the employer or Comcare was liable for any compensation payable to the applicant.
2. The employer ADI Limited is a “Commonwealth Authority” within the meaning of s107A of the Safety Rehabilitation and Compensation Act 1988.
3. On 7 February 1996 ADI Limited was granted a Class 3 Licence for a period of two years but which was subsequently extended to 30 June 1998. A Class B Licence was later granted from 1 January 1999.
4. The applicant suffered injury when in the employ of ADI Limited on 15 December 1995.
5. The claims made upon the employer and the decisions giving rise to these proceedings may be briefly summarised as follows.
6. On 26 August 1996 the applicant made a “claim for rehabilitation and compensation” on an ADI Form reporting injury on 15 December 1995. On 20 September 1996 Comcare accepted a claim for “muscular strain right neck”. (Refer letter completed by Comcare found at T9 page 20). The first date of treatment for the injury is recorded as 23 August 1996. The injury recorded in that claim form is “sprain in neck” however at paragraph 17 of the Form the applicant’s shoulder, arm, fingers and neck are recorded as being affected.
7. On 28 May 1998 Comcare wrote to Mr Spencer. The delegate advised that the claim for muscular strain right neck sustained on 15 December 1995 had been “considered” and that it had been decided to disallow the “reopening of your claim for compensation”. It was recorded that there was “insufficient evidence to link (your) current ailment to the muscle strain to neck injury on 15 December 1995”. The letter concluded “if a new injury has occurred or an incident causing an aggravation has occurred you may need to pursue this through your employer’s new compensation arrangements. Comcare ceased coverage of ADI claims on 7 December 1996”. The above decision denying liability was affirmed at reconsideration on 7 August 1998 (T25 page 39).
8. On 28 September 1999 the applicant’s solicitors forwarded a letter to ADI Limited enclosing a “claim for rehabilitation and compensation” upon a form bearing the ADI emblem. This claim sought weekly compensation during the periods of prior incapacity and payment and/or reimbursement of medical expenses arising out of treatment.
9. On 2 November 1999, a claims officer with ADI reported that he was satisfied that the applicant did sustain an injury in the course of his employment namely a “aggravation of right rotator cuff degeneration” on 23 August 1996 and that ADI was liable to pay compensation for that injury. It was also decided that the employment with ADI had not materially contributed “to a permanent aggravation of (his) underlying cervical disc degeneration” and liability with respect to that condition was denied. The letter recorded that the “injury” was “deemed to be 23 August 1996” being the first date upon which the applicant sought medical treatment or the first date on which the applicant was incapacitated because of the injury. Consideration was also given by the claims officer to a separate application that had been made for an impairment lump sum pursuant to s24 of the Act. Liability with respect to any impairment arising from the neck injury was denied by reason of the above decision, however, consideration with respect to the applicant’s s24 claim for the right shoulder injury was subject to the provision of a non-economic loss questionnaire.
10. The decision by the ADI claims officer of 2 November 1999 was reconsidered – by Comcare – on 10 May 2000 (T59 page 120).
11. Not surprisingly it would appear that the request for reconsideration concerned itself only with the decision made as to the applicant’s neck injury. This is because the “matters for consideration” as determined by the Comcare representative were confined to “whether the employment contributed in a material degree to aggravation of cervical disc degeneration” and “if yes, whether the effect of the aggravation has ceased and if so when” (page 129).
12. At page 132 the Comcare representative concluded, that the “neck symptoms” were largely related to the “compensable” right shoulder condition. It was decided that there was an aggravation of cervical disc degeneration by employment but that the effects of the aggravation by the employment ceased on and from 1 March 1997.
13. The reviewable decision formally concluded:
“The determination dated 2 November 1999 is varied. It is determined that Comcare is liable to pay compensation under the Safety Rehabilitation and Compensation Act 1988 in respect aggravation of cervical disc degeneration and aggravation of right rotator cuff degeneration up to and including 28 February 1997.
On and from 1 March 1997 liability to pay the above compensation ceased. Given Comcare’s liability in respect of the above period, ADI Limited is not then liable to pay compensation with regard to aggravation of cervical disc degeneration or aggravation of right rotator cuff degeneration as Mr Spencer was placed on light duties from August 1996 so that subsequent aggravation by his employment duties is not probable.”
arthur spencer
14. The applicant gave evidence and adopted a statement completed by him in July 2000. The statement was received into evidence as Exhibit G. It comprises 4 typed pages. It provides detail of the nature of the work undertaken by Mr Spencer with ADI.
15. Generally Mr Spencer said that his work duties involved making gunpowder and propellant. He described ADI as having a large work area where differing processes were undertaken.
16. Initially his work involved placing raw materials into machines and/or mixers. The material was nitrocellulose, coloid and nitrate. The materials were delivered to Mr Spencer for placement into the machinery either in block form or tablet form. The tablets were approximately two feet in diameter and three to four inches in depth. They varied in weight from 24.6 kilos to a maximum of 30 kilos each. The blocks were two feet square and approximately 18 inches deep. They were between 30 and 35 kilos in weight. Raw material was also delivered and tipped into mixers from buckets. The tablets were fed into the mixers after they were broken.
17. Mr Spencer said that in about 1994 or 1995 there were enterprise bargaining arrangements entered into with the workforce at ADI. This resulted in reduction in the labour force necessitating more work being undertaken by remaining labour and involving greater quantities of lifting. He described lifting devices only being installed from 1996 or 1997 after the time that he was injured.
18. Mr Spencer said that the materials were fed into the mixer or a macerater. He said that buckets were lifted to approximately chest height to an opening of the macerater. Broken tablets were lifted to a height above his shoulders.
19. On another process after tablets and blocks come from a press, they were lifted and fitted into a buggy at about waist height. His work also involved the movement of trolleys and trucks by pushing from one site within ADI to another over a distance of approximately 50 metres, up a slight incline with the assistance of another person. The trolleys or trucks weighed between 1100 and 1420 kilos.
20. Mr Spencer said he had not ever suffered injury prior to commencement of employment with ADI. In his statement he said he underwent a medical examination prior to commencement of employment (November 1987).
21. In mid 1995 when scooping nitrocellulose into a bucket and when wearing earmuffs Mr Spencer said that he hit his head and was knocked down. He could not recall if that incident was reported. He recalled having neck pain but did not seek treatment. He had pain in his neck for the remainder of that day but not thereafter.
22. On 15 December 1995 when lifting buckets of rifle coloid at the macerater he suffered severe pain in his right shoulder and at the back of his shoulder and into his arm. This episode was reported and a written report of the incident is found at T3 page 8.
23. Thereafter Mr Spencer was placed on light duties for one month however on return to normal duties he continued to have pain in his right shoulder.
24. Mr Spencer continued to perform his normal duties until August 1996 when he attended Dr Keppell. This was the first occasion that the applicant had sought any medical treatment for his right shoulder. Dr Keppell is his family doctor in Yarrawonga. In the preceding eight months from 15 December 1995 Mr Spencer said that he worked in the presence of “aggravating pain”. He described the pain as “getting worse”. Dr Keppell gave him a certificate for restricted duties not involving lifting above 10 kilos in weight. Thereafter Mr Spencer worked with these restrictions until November 1999 when his hours were reduced to four per day and then involving a different job. Dr Keppel had provided all treatment until Mr Spencer was referred to Mr Leitle an orthopaedic surgeon in Wangaratta who has recently recommended surgery.
25. At August 1996 Mr Spencer described one of his jobs at work as having to lift a gate on a buggy. He said the gate was heavy and it had to be lifted above head height. He said he is required to undertake this particular job every ten or fifteen minutes.
26. At November 1999 Mr Spencer described the presence of constant right shoulder pain. He attended Dr Keppel and was given a certificate for two weeks incapacity. At the expiration of that period Dr Keppel recommended that because he faced the likelihood of being in constant pain he should attempt to obtain employment with ADI working for reduced hours. He was able to secure other work at 4 hours per day not involving heavy lifting. At that time Mr Spencer described his main problem being the use of his right arm and said that he had neck pain if he travelled long distances, if he had to look up, or if he had to turn his head. He said that when his “neck plays up” he had “real aggressive pain in the shoulder”. The only medication consumed is Panadol every second or third day. From November 1999 Mr Spencer has worked connecting hoses to road tankers which fill storage vats. He also opens valves and inserts a dip or measuring stick into tankers to measure contents. He said some valves are stiff but in recent times the valves have been changed over to a ball valve which he finds easier.
27. Mr Spencer said he is unable to put any pressure on his right arm or shoulder when opening valves that are stiff.
28. In cross-examination by Mr McFarlane on behalf of Comcare Mr Spencer said that a normal working day would commence at between 6:12 and 7:00 a.m. and finish at 4:00 p.m. Work would be completed either in the mixing house, on the finishing presses or in the DeHydration House. He said that he would work in either of these buildings with three or four other employees. The weights to be lifted would be known by memorandum received by him at the commencement of each shift. The memorandum would determine the weight of the blocks or tablets that had to be made each day.
29. Mr Spender described the buckets as weighing 6 kilograms each when empty and would be filled to either 43.6 or 47.6 kilos. They would be filled and weighed on a scale. The buckets are 2 feet in diameter and 2 feet high with a handle on each side. They are lifted alone.
30. Mr Spencer acknowledged that there was no record of the incident in mid-1995 when he struck his head. However, he said he reported the shoulder pain of 15 December 1995 to Amber Keating, an occupational nurse at the workplace. He said he had had right shoulder pain, on and off, prior to December 1995 but had not reported it. He associated the pain when working on the mixer machines. He recalled having told a number of other workmates about the pain. Mr Spencer said that Ms Keating recommended that he consult Dr Keppell, however, he had no recollection of attending him at December 1995. He accepted that if Dr Keppell had no record of attending him at that time that he would not have seen him for treatment.
31. Mr Spencer acknowledged that the records of Dr Keppell did not record attending for treatment between December 1995 and August 1996 of his shoulder or neck yet he attended him for other complaints. Despite this Mr Spencer was adamant that he has had right shoulder pain since December 1995. Mr Spencer was referred to a memorandum at T7 page 18 completed by a claims officer with ADI. It refers to an injury on 15 December 1995 and a recurrence in May 1996. Mr Spencer agreed that his symptoms “reappeared” in May 1996.
32. From August 1996 Mr Spencer said he worked exclusively on the cutting machine. This work was undertaken on a full-time basis. He said the work involved pulling a buggy being 4 feet square containing 49 buckets of coloid. He described the process as having to lift an end gate of the buggy every 10 to 15 minutes. He said this was the main problem in completing this job because the gate was heavy. He said in recent times another person had been assigned to that task so that two people would lift the end gate despite the employer also fitting a 24 kilo counterweight to that gate. He said the direction to have two persons lift the gate and to have the counterweight fitted occurred in August 1999 so that he performed the work in the cutting machine lifting the gate for three years after being placed on lighter duties at August 1996.
33. Prior to November 1999 Mr Spencer said he had odd days off work on sick leave and some of the time off work was to undertake a hernia repair and for treatment of asthma. He was referred to Mr Leitle who commenced a course of injections which he said helped. He attempted physiotherapy but described it as being of “no help”.
34. Since December 1995 Mr Spencer said that his shoulder pain has from time to time eased but it had never “disappeared”. He said the shoulder pain occurs with or without the presence of neck pain. He described neck pain occurring if he “puts pressure” on his shoulder and said he also has discomfort in his neck when driving a motor vehicle or turning his head from side to side. He said in recent times he has commenced to use his left arm (he is right hand dominant) yet he has noticed pain in his left shoulder. Despite the absence of references in the notes of Dr Keppell of right shoulder pain when working on the cutting machine after August 1996 until August 1997 Mr Spencer said that he did have symptoms and on occasions when the pain was severe he would attend Ms Keating.
35. Mr Spencer ceased work on the cutting machine at November 1999 after discussions with Ms Keating. He said that he was “sick of the cutting machine” and discussed the job of emptying the tankers. He said the cutting machine job was boring and he sought other duties. Despite his request to be placed on the tanker job he continued to perform work in the cutting room for 15 months prior to November 1999 and was also given some work in the tea room sweeping and cleaning or mixing powder in another area of the ADI Plant. He was aware that the tanker job would only require 4 hours work per day. Despite this and having only been paid for 4 hours work per day from November 1999 Mr Spencer said that he would be prepared to “try” a job involving 4 hours per day on the tanker and the remaining 4 hours per day in the cutting room. At the present time Mr Spencer lives alone and undertakes all domestic responsibilities. He says he hangs his washing on a clothesline with difficulty and carries groceries in his left hand. He does not chop wood and said that he can cope with domestic work but with some difficulty. He spends his afternoon at home but does not undertake hobbies or any recreations. He said the symptoms in his right shoulder now are worse than they were 12 months ago but said that his neck was “much the same”.
36. In cross-examination by Mr Johnson who appeared on behalf of ADI, Mr Spencer said that he had not been “completely pain free” in his shoulder since December 1995. He said that his neck only interferes with his work if he has to look up or if he has to turn his head from side to side. He described his neck pain as an “inconvenience”. Despite the notes of Dr Keppell not referring at each consultation to pain in the neck and shoulder, Mr Spencer said that he was in pain but did not necessarily report them on each attendance. He said he did not have neck pain at his first attendance with Ms Keating at December 1995 and the reference at paragraph 11 of his statement (Exhibit G) to neck pain is incorrect.
37. Mr Spencer was taken to his original claim form at T4. He acknowledged that he reported that the injury occurred on 15 December 1995 and was first treated on 23 August 1996. The injury was described as “pains in shoulder radiating down to fingers”. Mr Spencer said that these were the symptoms that existed at August 1996 and that the pain in the fingers was confined to the right ring and little fingers. There was pain present also in the shoulder and the right bicep. When asked to clarify his finger pain he said it was not pain but in fact it was numbness in the little and ring fingers. At question 18 (page 11) when asked to record whether there was ever a similar injury Mr Spencer recorded that at 15 December 1995 he had “similar pain in shoulder”. He said in evidence that the pain at that time was only confined to his shoulder.
38. Mr Spencer was referred to a statement completed by Dr Kevin Marks, a salaried occupational physician of ADI, found at T21 page 34. Dr Marks described the duties undertaken in the cutting room. Mr Spencer agreed with the description of the work and said he was able to cope with the duties as described.
39. Mr Spencer was also taken to a report completed by Dr Marks of 12 July 2000 (Exhibit R3) following a review of Mr Spencer on the same day. Dr Marks detailed the work completed by Mr Spencer loading and unloading tanks. Mr Spencer said he was able to manage this work and the only exception he took to the report was a reference by Dr Marks to valves being easy to move. Mr Spencer said that on occasion some valves were stiff and were difficult to open.
40. In re-examination by Mr Waugh, Mr Spencer said that approximately 4 to 6 valves per shift were stiff and difficult to move. At the time of the hearing Mr Spencer had been undertaking this work for about seven months whereas previously he had been completing it “on and off”. The reference to a “grill gate” in the memorandum of Dr Marks of 17 June 1998 (T21) is the gate at the end of the buggy used in the cutting machine area to which a 24 kilo counterweight had recently been fitted. (Dr Marks concluded (page 35) that the job was light and involved little shoulder movement and that it was unlikely that the work would cause or aggravate a shoulder or neck injury).
41. At December 1999 Mr Spencer said he was being treated by Dr Taylor who was at the same rooms as Dr Keppell. A “frozen shoulder” was then diagnosed and Mr Spencer described his shoulder then as “very bad”. He said he could only move it to 45 degrees and was off work for between 4 and 6 weeks.
42. Mr Spencer said he saw Ms Keating in mid-1998 with the intention of seeking a transfer to the tanker job. He said he was then bored with working in the cutting room and he was working alone for four or five hours of each day. He said Ms Keating and Dr Keppell recommended that he start the tanker job yet he was kept in the cutting room until late 1999, although from time to time he was given work (at the recommendation of Ms Keating) in the tearoom.
amber keating
43. Ms Keating is the occupational nurse employed by ADI. She completed a statement on 21 July 2000 (Exhibit R1). Her notes relating to the treatment of Mr Spencer are found in the T Documents at T39 page 67. Ms Keating said that she attended Mr Spencer on 15 December 1995 which was a Friday. She prescribed some analgesics and did not recommend that he attend his doctor unless he was still in pain by the following Monday. That is to say, she anticipated that with rest over the following weekend that if pain persisted Mr Spencer would attend his doctor. She said between December 1995 and 23 August 1996 while she attended him from time to time for other matters, there was no record of any complaint of pain or soreness in the applicant’s neck or shoulder.
44. On 23 August 1996 Mr Spencer complained of pain in his neck and right shoulder and she referred him to Dr Keppell. She said that a certificate was received from Dr Keppell on 26 August 1996 placing Mr Spencer on restricted duties which she believed would then be temporary, however the restrictions were certified by Dr Keppell to be permanent from 16 September 1996. The restrictions then involved an absence of any heavy lifting. At that stage Mr Spencer was working in the cutting room.
45. At August 1998 Mr Spencer discussed his work in the cutting room with Ms Keating. He described the work as monotonous and requested that he be transferred to the solvent tanks. That job was investigated by Ms Keating however she could not recall discussing it with Dr Keppell. Thereafter Mr Spencer performed work in the cutting room and on the solvent tanks until he commenced work in the tearoom. These duties were allocated because Mr Spencer had complained of fumes in the cutting room which aggravated his asthma. Ms Keating said that from the time the applicant commenced work on the solvent tanks at the end of 1999 he had worked 4 hours per day only.
46. In cross-examination Ms Keating said that she was aware that the applicant suffered a frozen shoulder in December 1999. With respect to a flair up of shoulder pain at May 1999, Ms Keating said the applicant was then working in the cutting room where a counterweight had been fitted to a trolley gate approximately 6 months earlier. She recalled that persons found it difficult to lift without the counterweight. She described the process as being awkward. Despite this she said that injuries did not necessarily occur if one person only lifted the gate.
dr marks
47. Dr Marks has been an occupational physician in the employ of ADI since 1986. He previously worked with its predecessor Australian Defence Industries. Whilst Dr Marks has an office at Bendigo he is aware of the Mulwala installation and travels to it every 2 or 3 weeks. He has prepared 2 reports which were received into evidence dated 17 June 1998 and 12 July 2000.
48. Dr Marks examined the applicant on 16 May 2000 and prepared a report for Ms Keating. That document was also received into evidence.
49. When asked to describe the duties in the cutting room Dr Marks said that it was his opinion that the work would not cause injury. He said it may cause pain “for a few minutes”. He acknowledged that lifting the grill cover (the gate) on the cutting room trolleys may cause “harm” because the operator’s shoulder would need to be elevated but he said the gate was not “super heavy”. When he was referred to his report of 12 July 2000 Dr Marks said that the cutting room duties then described were then within the capacity of the applicant except for 1 or 2 elevations of his shoulder. In any event he said these exceptions would not interfere with the applicant undertaking the cutting room work.
50. Dr Marks thought there was no reason why the applicant could not complete the tanker duties in the morning and the cutting room duties in the afternoon of each day. He said this arrangement would be “appropriate”.
51. In cross-examination by Mr Waugh, Dr Marks said that any change of duties should only be in consultation with the applicant’s own doctors. Dr Marks also said that he would defer to opinions expressed by Mr Leitle with respect to the nature of the applicant’s injuries and the need for surgery.
52. When he was asked to comment on the applicant’s frozen shoulder at December 1999 with the apparent presence of wasting of the deltoid muscles, Dr Marks said that a condition of that type might be responsible for the applicants restrictions at work but it would not indicate “damage”. With respect to the opinions expressed by Dr Marks following a consultation of the applicant in May 2000 Dr Marks agreed that the applicant had recently received an injection from Mr Leitle.
53. In re-examination by Mr McFarlane, Dr Marks said that at January 2000 when the applicant returned to work it would have been difficult to assess when he would have become fit for full-time work, however, a plan would have been developed to gradually return the applicant to full-time hours over a period of 2 or 3 months in consultation with his treating general practitioner.
DR KEPPELL
54. Dr Keppell is the applicant’s treating general practitioner. He provided 3 reports dated 4 June 1998, 15 September 1998 and 16 June 2000. The reports and a copy of his file were received into evidence. (Dr Keppell was the only medical practitioner who has treated the applicant or attended on a medico legal basis to give evidence.) The reports of Mr Leitle and Dr Brooder were received into evidence. Reports of Mr Shannon and Dr Kostos who examined the applicant at the request of Comcare were within the T Documents.
55. Dr Keppell said that the applicant had been a patient of his practice since 9 October 1987 however he first consulted the applicant on 16 May 1996. He then attended for treatment of asthma and on 7 June attended Mr Spencer for back pain.
56. On 23 August 1996 he recorded:
“Right neck, shoulder, hand pain 1/52. Numbness into fingers. Recently lifting blocks of powder. Can’t lie on right side. Right handed. Problems began early 96 with lifting duties. Says reported then. OE tender C6/7right shoulder restricted 90°. No tenderness. Certificate 1/52 modified duties.”
57. On 13 September 1996 Dr Keppell again attended Mr Spencer. His notes record:
“Much better. Working usually normal duties except not lifting buckets (43kg). Asthma good, (illegible) becotide.”
58. On that date a certificate was also issued (T8 page 19). That certificate records that the applicant was “fit to return to modified duties with limitations”. In evidence Dr Keppell said that the applicant then had disease of the right shoulder and neck which was consistent with the presenting injury. At that stage he had been attending the applicant for these injuries for 3 weeks and he then thought that recovery would be slow. He later referred the applicant to Mr Leitle who provided a diagnosis of chronic right rotator cuff inflammation and cervical spondylosis. Dr Keppell said that on reflection these injuries existed when he consulted Mr Spencer at August 1996.
59. Thereafter Dr Keppell continued to attend the applicant. At November 1999 he certified the applicant as fit for 4 hours per day. He said that whilst he was aware the applicant had been working in the presence of continuing pain he thought that from a rehabilitation point of view it would be best for the applicant to be at work. He thought that work for 4 hours per day was a “reasonable compromise”.
60. He certified the applicant as being unfit for work for 2 or 3 weeks in February 2000 because of stress and anxiety associated with marital problems. Thereafter his notes referred to continuing treatment of the applicant and/or discussing the contents of reports he had received from Mr Leitle.
61. Dr Keppell said that the applicant’s rotator cuff and cervical spondylosis were associated with the applicant’s former employment and both conditions were inter-dependent. He thought that the applicant’s work at ADI involving repetitive lifting and strain contributed “to a significant extent” to continuing soft tissue injuries. In effect Dr Keppell said that the applicant sustained repeated damage throughout his employment. He said he was unclear whether these injuries occurred from 1995 to 1996 but thought this was reasonable. He said once the injuries were precipitated his healing capacity would be reduced because of his age (48 years). He said the applicant would take longer to recover than a younger person. He thought it was unlikely that the applicant would improve in the future and that it was unlikely that he would be able to cope with heavy manual work.
62. In cross-examination by Mr McFarlane, Dr Keppell said that the first presentation for shoulder and neck pain occurred on 23 August 1996. Dr Keppell said something must have occurred at work in August 1996 to render his neck symptomatic. Nonetheless he agreed that there were “little symptoms in the neck” at that consultation and thought that the neck symptoms were explainable by the natural progression of a degenerative disease process.
63. When asked to comment upon the applicant having “hurt” his shoulder in December 1995 (and for the purposes of this analysis he was to assume that the applicant’s shoulder injury had resolved and thereafter did not have symptoms until May or August 1996). Dr Keppell said it was reasonable to conclude that the applicant then suffered another injury in August 1996. He agreed that the first complaint of numbness in the fingers occurring in August 1996 was suggestive of a different injury to that which occurred at December 1995. Dr Keppell noted that the applicant apparently worked 1.75 hours overtime per week after December 1995 and although he attended Dr Keppell and others in his clinic for treatment after December 1995 there was no complaint of neck or shoulder pain until August of 1996. On this analysis Dr Keppell agreed that the “genesis” of his current problems was August 1996 rather than December 1995.
64. Dr Keppell dismissed the applicant’s consumption of Panadol only as being referable to a minor injury. He said the applicant had attempted physiotherapy and had had steroid injections. He described Mr Spencer as “hardy and stoical”. He said he discussed the tanker job with Amber Keating who agreed that those duties were appropriate. Dr Keppell was not prepared to agree that the applicant was capable of working an extra 4 hours per day in the cutting room but said that if the only reason the applicant was not performing that work was because it was boring he could think of no physical reason the applicant could not undertake those duties.
65. In cross-examination by Mr Johnson on behalf of ADI, Dr Keppell was taken to his report of 15 December 1998 (T40 page 69). In that report he recorded that the applicant’s “problems” began in early 1996 “when he commenced lifting duties at ADI”. Dr Keppell was referred to the history of the applicant’s employment and comments that the applicant had made in his claim form (T4 page 12) where, when referring to the incident of 15 December 1995, the applicant described working in the mixer house, on the macerater, lifting buckets of powder “all day”, with pain starting in the morning and continuing for the rest of the day. On the basis of this description Dr Keppell said that the applicant’s neck and shoulder injuries would be consistent with having commenced from December 1995 and his reference to “early 1996” in his notes and his reference to “early 1996” in his report of 15 December 1998 may have been a mistake. He said he would have taken the reference to “early 1996” from Mr Spencer.
66. In re-examination Dr Keppell said that he would only ever issue certificates for Mr Spencer if appropriate. He said that since mid1996 when he first consulted with him Mr Spencer has been a person who “does not make complaints easily” and that it was his belief that the applicant had on all occasions suffered from genuine pain.
conclusion and reasons for decision
67. On 15 December 1995 the applicant attended Ms Keating at the workplace. Her notes record a “painful right shoulder” (T39 page 67).
68. An injury report of the same date records the same injury (T3 page 8). The applicant did not then attend a doctor for treatment however his claim form (T4 page 10) records an injury of “sprain in neck”. When asked in the same claim form when this injury occurred or when he first noticed it Mr Spencer recorded “15 December 1995”. At T9 page 20 Comcare has accepted “the claim” which recorded the injury as being “muscular strain right neck”. The date of injury is recorded to be 15 December 1995. Dr Keppell recorded at first consultation on 23 August 1996 that the applicant had “right neck and shoulder pain” beginning in early 1996. In evidence he acknowledged that the reference to “early 96” came from the applicant and when he heard of the incident and reporting to Ms Keating in December 1995 concluded that that incident was consistent with the symptoms reported at August 1996.
69. I am satisfied in the circumstances and find as a fact that at December 1995 the applicant suffered neck and shoulder injuries.
70. I prefer the opinion of Dr Keppell who has extensively treated and consulted the applicant since August 1996. I note that he was of the opinion that the neck and shoulder injuries were “inter-dependent”. I note that Dr Brooder and Mr Leitle are of the opinion that the neck injury is related to the employment. Whilst I note the opinions expressed by Mr Shannon, Dr Kostos and Dr Marks as to the relationship between employment and the neck injury I prefer on balance the weight of the evidence of Drs Keppell, Brooder and Mr Leitle, the evidence of the applicant himself and the documents lodged. I am also inclined to the view that there is a relationship between the employment and the neck injury originating at December 1995 having regard to the description of the work duties given by the applicant, Ms Keating and Dr Marks.
71. Having observed the applicant give his evidence, having read the reports filed and having heard the evidence of Dr Keppell I am also of the view that the applicant is a stoical worker who did not seek to embellish or exaggerate his symptoms. I am satisfied that despite the absence of attending Dr Keppell until August 1996 that the applicant suffered neck and shoulder pain from December 1995. There is nothing to suggest that he suffered new injuries at August 1996 and because the applicant is a witness of truth I am satisfied that he suffered symptoms of neck and shoulder pain after December 1995 which continued until August 1996. That the applicant worked without restrictions until August 1996 in work which can only be described as heavy would permit the conclusion that the symptoms did not resolve and/or that new injuries occurred at August 1996.
72. Whilst it was submitted by the representatives of Comcare and ADI that this was essentially a dispute between them as to who has liability to pay compensation to the applicant, submissions were made as to whether the applicant suffered any compensable neck injury. Hopefully the above reasons indicate that I have found as a fact that the applicant did suffer a neck injury arising out of his employment.
73. The date 7 February 1996 is of course relevant as to the respondent and the party joined because it was from that date that some liability – if any – for payment of compensation fell upon the employer. Whilst I am satisfied that at August 1996 the applicant presented to Dr Keppell with neck and shoulder injuries which originated in December 1995, the employment after December 1995 did continue to be heavy and repetitive and exertive.
74. The primary determination and reviewable decision made in application V1998/1035 must be set aside. Those decisions recorded that Comcare had “disallowed the reopening of your claim for compensation” and concluded “if a new injury has occurred or an incident causing an aggravation has occurred you may need to pursue this through your employer’s new compensation arrangements. Comcare ceased coverage of ADI claims on 7 February 1996”.
75. I am satisfied also that the decision made in application V2000/0589 must be varied because I cannot be satisfied on the evidence that liability for aggravation of cervical disc degeneration or aggravation of right rotator cuff degeneration ceased at 28 February 1997. That decision must be varied because it assumes that the applicant performed modified or light duties for 6 months after December 1995 (being a period allowed in the decision under review) when the evidence was that whilst the applicant worked on a full-time basis in the cutting room with 10 kilo restrictions on lifting the 24 kilo counterweight on the cutting room buggies was not fitted for some time after August 1996. On the evidence of the applicant after the time that the employer directed that 2 persons to lift the gate yet the applicant continued to work frequently without assistance. Additionally, in my view, the injury as described in this decision is incorrect. The applicant suffered a right shoulder supraspinatus tendonitis and a cervical spondylosis. These conditions have been diagnosed by Mr Leitle (refer report 31 July 2000 – Exhibit D). In the alternative Mr Brooder has diagnosed the injuries as being a degenerative calcific right supraspinatus tendonitis with a repetitive sub-acronial impingement and an intermittent cervical pain syndrome being related to degenerative cervical spondylosis (refer report 28 July 2000 – Exhibit F). These descriptions of injury are similar to those given by Dr Kostos and Mr Shannon.
76. Irrespective of who is liable to compensate the applicant it would appear since December 1999 that the applicant has chosen to work at 4 hours per day only. His expressed reason for leaving the cutting room was because it was “boring” yet I note that Ms Keating said that he presented to her with a request to leave the cutting room because his asthma was worsened by the presence of fumes. Subject to the applicant being assessed and returning to full-time employment on a graduated return to work program it would appear, subject to rigid adherence of weights to be lifted by the applicant and careful monitoring by his medical practitioners, that the applicant may have a capacity to work full-time on the basis of 4 hours per day with the tanker duties and 4 hours per day in the cutting room.
77. Neither decision under review calls for any review of the liability as between Comcare and ADI. For the reasons given above I am satisfied that the decision in V1998/1035 should be set aside and the decision in V2000/0589 should be varied.
78. I am satisfied that the applicant suffered shoulder and neck injuries in December 1995 which continue to the present time. I am satisfied that those injuries arose out of and in the course of his employment with ADI before and after 7 February 1996. Whilst it is true that the applicant performed heavy repetitive work for many years prior to 7 February 1996 he did continue to perform some heavy work for a period of time after 7 February 1996 (at which point in time he then had neck and shoulder injuries) and for a period of time certainly beyond August 1996 despite having a 10 kilo restriction imposed upon him by Dr Keppell.
79. I am unable to conclude by what degree each of Comcare and ADI are presently responsible for the applicant’s entitlement to compensation. The reviewable decision made on 7 August 1998 affirming the primary determination made on 28 May 1998 purported to shift all liability to ADI by its reference to Comcare ceasing any “coverage” of ADI employees at 7 February 1996. The reviewable decision made on 10 May 2000 (T59 page 132) would seem to modify that earlier decision because Comcare conceded liability for neck and shoulder injuries at least until 28 February 1997.
80. I am satisfied that from 28 February 1997 the effects of the injuries have not ceased and the applicant has had an entitlement to compensation for his medical and like treatment and for periods of incapacity by reason of the injuries.
I certify that the 80 (eighty) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed: Linda Nemeth ............................................
SecretaryDate of Hearing 28 July 2000
Date of Decision 13 September 2000
Counsel for the Applicant Mr Michael Waugh
Solicitor for the Applicant Robb & Associates
Counsel for the Respondent Mr Ken McFarlane
Solicitor for the Respondent Sparke Helmore
Counsel for the Party Joined Mr Geoff Johnson
Solicitor for the Party Joined Minter Ellison Lawyers
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