Stanton and Comcare

[2015] AATA 297

[2015] AATA 297

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/3704
Daniel Stanton
APPLICANT
And	Comcare
RESPONDENT

DECISION

Tribunal	Dr James Popple, Senior Member
Date	5 May 2015
Place	Canberra

Comcare’s decision on 16 July 2014 is affirmed.

...............................[sgd].........................................

James Popple, Senior Member

CATCHWORDS

COMPENSATION — Commonwealth employees — ongoing liability for accepted condition — whether Applicant continues to suffer effects of condition — decision affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 14, 16, 19

CASES

Commonwealth v Borg, unreported, Federal Court of Australia, Full Court, 15 November 1991

Greaves and Comcare [2015] AATA 177

Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253

REASONS FOR DECISION

James Popple, Senior Member

5 May 2015

Summary

1. I affirm Comcare’s decision that, from 15 May 2014, Comcare was no longer liable to pay the applicant compensation for medical expenses, or for incapacity for work, under the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).  At that date, the applicant no longer suffered from the effects of the compensable injury to his shoulder for which Comcare accepted liability on 10 January 2011.

   Background

2. Mr Daniel Stanton works for the Australian Bureau of Statistics (the ABS). On 9 December 2010, he made a claim for workers’ compensation for a sprain to his “top left back”. He said that this was due to repetitive lifting of small weights over a two-week period at his work. On 10 January 2011, Comcare accepted liability, under s 14 of the SRC Act for Mr Stanton’s supraspinatus (muscle) (tendon) strain (left), affections of shoulder region (left), and disorders of bursae and tendons shoulder region (left), with a date of injury of 3 December 2010.

3. Mr Stanton underwent treatment for his shoulder injury (the compensable injury) and, on 17 May 2011, started a return-to-work program.  On 11 July 2011, Comcare closed his return-to-work plan on the basis that he had returned to full-time employment with the ABS.  At the time, Comcare noted that “[t]he pain in [Mr Stanton’s] left shoulder has partially settled; however he experiences some discomfort when performing gym-based exercises”.  Comcare also noted that Mr Stanton “continues to attend a supervised gym rehabilitation program regularly and also receives hands-on physiotherapy treatment”.

4. But in June 2011, Mr Stanton’s shoulder pain had spontaneously returned.  On 27 July 2011, Mr Stanton started another return-to-work program.  He underwent further treatment, including (on 9 August 2011) a cortisone injection.  On 21 November 2011, Comcare closed this return-to-work plan on the basis that Mr Stanton had again returned to full-time employment with the ABS.  Comcare noted that his shoulder pain had “settled” and that he was continuing with his supervised gym program and physiotherapy treatment.

5. In late 2012, Mr Stanton’s shoulder pain spontaneously returned again.  On 22 March 2013, following ultrasound reports which showed that he had subacromial bursitis, he had surgery on his left shoulder: an arthroscopic decompression.  On 10 May 2013, he started a rehabilitation program.  On 11 December 2013, Comcare closed the rehabilitation program on the basis that he had again returned to work.

6. On 2 April 2014, Comcare wrote to Mr Stanton advising him of Comcare’s view that the medical evidence suggested that he no longer suffered from the effects of the compensable injury. Mr Stanton was asked to provide any further medical evidence in support of the contrary view within 28 days. Mr Stanton did not provide any further evidence and, on 15 May 2014, Comcare decided that he no longer suffered from the effects of the compensable injury. For that reason, Comcare determined that Mr Stanton was no longer entitled to compensation for medical expenses (under s 16 of the SRC Act) or for payments for incapacity for work (under s 19).

7. On 28 May 2014, Mr Stanton requested a reconsideration of that determination.  He said that his injury had become painful again in the preceding two weeks, and he was concerned that the injury had “come back after thinking [he] was OK”.  On 16 July 2014, Comcare affirmed its determination.

8. On 18 July 2014, Mr Stanton applied to the Tribunal, under s 64 of the SRC Act and s 29(1) of the Administrative Appeals Tribunal Act 1975, for review of that decision.

   Decision under review

9. The decision under review is Comcare’s decision on 16 July 2014 affirming its decision that Mr Stanton was no longer entitled to compensation under ss 16 or 19 of the SRC Act.

   Issues

10. The issues in this review are:

    ·whether Mr Stanton continues to suffer from the effects of the compensable injury; and

    ·if he does:

    owhether he requires medical treatment for which compensation is payable; and

    owhether he is incapacitated for work as a result of the compensable injury.

    Does Mr Stanton continue to suffer from the effects of the compensable injury?

11. Under s 14 of the SRC Act, 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 provides for Comcare to pay compensation in respect of medical treatment obtained in relation to an injury. Section 19 provides for Comcare to pay compensation to an employee who is incapacitated for work as a result of an injury. Comcare says that Mr Stanton no longer suffers the effects of the compensable injury. If that is true, then Comcare is no longer liable to pay compensation in respect of his medical treatment, and no longer liable to pay him if he is incapacitated for work.

12. Mr Stanton gave evidence at the hearing about the progress of his shoulder condition since late 2010.  I accept him as a witness of truth.  I note that his evidence is broadly consistent with the medical evidence before the Tribunal.  There is no doubt that Mr Stanton suffers from pain in his left shoulder, and that that pain has significantly affected his life.

13. There is medical evidence from two orthopaedic surgeons: Dr Sindy Vrancic and Dr Geoffrey Stubbs.  Mr Stanton has been Dr Vrancic’s patient since November 2012.  Dr Vrancic prepared several reports about his condition between 9 November 2012 and 27 March 2015.  In the most recent of these, she confirms her earlier view that Mr Stanton has “ongoing tendinosis/bursitis/impingement syndrome”.  “These diagnoses”, she says, “are interchangeable and all relate to inflammation of the structures of the rotator cuff musculature as well as the subacromial space bursa”.  She says that Mr Stanton has suffered “recurrent flare ups” of the same condition since 2010.  She says that “[t]here is a constitutional component to [Mr Stanton’s] rotator cuff weakness which requires regular maintenance exercises to minimise symptoms”.

14. Dr Vrancic concedes that it is difficult to determine the initial cause of impingement syndrome as it is “a whole range of issues that come together like a perfect storm”.  However, she says that “[a]n anatomical predisposition coupled with an unergonomic posture in the workplace as well as poor non operative management can all lead to the vicious cycle of inflammation in the shoulder resulting in” the syndrome.

15. Dr Vrancic says that, “[w]hile there has been no significant traumatic injury to herald the flare up of his symptoms, there is a postural component to impingement syndrome, especially repetitive computer based work.  As such there is a component of the workplace activities which contributes to [Mr Stanton’s] pain”.  But she also says that the work-related effects of Mr Stanton’s condition “have ceased” and that she believes that “in his current workplace his activities are moderated to the point where he can co-exist with his workplace activities without significant chance of flare up”.  This is because “the factors in the workplace have been addressed”: for example, through Mr Stanton’s use of voice-activated software instead of a keyboard.  That is not the same as saying that Mr Stanton no longer suffers from the effects of the compensable injury.  In fact, Dr Vrancic says that she does not believe that Mr Stanton’s condition has ever ceased, except for its work-related effects.

16. By contrast, Dr Stubbs not only says that Mr Stanton no longer suffers from the effects of the compensable injury, he says that Mr Stanton’s condition is unrelated to any workplace injury.  Dr Stubbs examined Mr Stanton on 30 October 2014, and provided a report on 3 November 2014.  He also gave evidence at the hearing.  Dr Stubbs referred to the ultrasound reports which showed subacromial bursal inflammation in Mr Stanton’s shoulder, after which Mr Stanton had an arthroscopic decompression.  Subacromial bursitis, Dr Stubbs said, is typically reported in about half of normal males.  It is frequently present in the absence of pain, and does not represent a disease process in itself.

17. In Dr Stubbs’s view, Mr Stanton’s shoulder problems are probably due to “chronic rotator cuff weakness and imbalance” rather than to a single injury.  This, he explained, is an underuse syndrome, best treated with a program of strengthening exercises.  He says that Mr Stanton’s pain is independent of bursitis.

18. Dr Stubbs speculated that the recurrences of Mr Stanton’s shoulder pain could have been due to Mr Stanton stopping his exercises.  When told that there was evidence that Mr Stanton had been following his physiotherapist’s instructions, Dr Stubbs said that physiotherapists do not always suggest the appropriate exercises.  In response to the evidence that Mr Stanton’s shoulder responded well to the arthroscopic decompression, Dr Stubbs said that outcomes following that kind of surgery and exercise are no better than those following exercise alone.

19. To the extent that they differ, I prefer the evidence of Dr Stubbs over that of Dr Vrancic.  I think that Dr Stubbs’s diagnosis is a more likely explanation of Mr Stanton’s condition since 2010, including the apparently spontaneous recurrences of shoulder pain.

20. Comcare bears a practical onus of demonstrating that the effects of the compensable injury have ceased.[1]  I think that Comcare has done so.  Having regard to the evidence, I am persuaded that the effects of Mr Stanton’s compensable injury have ceased.  That is not to say that Mr Stanton does not continue to suffer from a shoulder condition, only that the current condition of his shoulder is not a result of his compensable injury.

    [1] Commonwealth v Borg, unreported, Federal Court of Australia, Sweeney, Jenkinson and Gray JJ, 15 November 1991.  The court’s reasons appear, in their entirety, in an editor’s note to Telstra Corporation Ltd v Arden (1994) 20 AAR 285 at 299–310: see at 307 per Jenkinson J, with whom Sweeney J agreed. See also Greaves and Comcare [2015] AATA 177 at [26] per Bean DP.

21. I find that the effects of his compensable injury ceased no later than 15 May 2014.  That is when Comcare made its original decision, the reconsideration of which is now under review.  At that time, the medical evidence suggested that Mr Stanton’s condition had settled—at least to the extent that it was a result of the compensable injury.

    Other issues

22. Because of my conclusion that Mr Stanton does not continue to suffer from the effects of the compensable injury, I do not need to consider the other issues that arise in this review: whether Mr Stanton requires medical treatment for which compensation is payable; and whether he is incapacitated for work as a result of the compensable injury.

23. At the hearing, Comcare argued that it is open to me to find that Comcare was wrong when it accepted liability for Mr Stanton’s condition on 10 January 2011.[2]  I do not need to make such a finding, and I do not make one.  I think it is appropriate that Comcare did not press for such a finding.  Since first suffering his shoulder pain in 2010, Mr Stanton would appear to have followed the advice of his doctors (his general practitioner, his sports physician and his orthopaedic surgeon) and his physiotherapist, and cooperated fully with Comcare.  I think it would have been an unfair result if he had had to repay the compensation that he has received since then.[3]

    [2] See Telstra Corporation Ltd v Hannaford (2006) 151 FCR 253 at [57]–[59] per Conti J, with whom Heerey and Dowsett JJ agreed.

    [3] See s 114(1)(b) of the SRC Act.

    Conclusion

24. The effects of Mr Stanton’s compensable injury ceased no later than 15 May 2014.  Comcare was, from that date, no longer liable to pay Mr Stanton compensation in respect of his medical treatment, and no longer liable to pay him for incapacity for work.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

..............................[sgd]..........................................

Associate

Dated 5 May 2015

Date of hearing	14 April 2015
Applicant	In person
Counsel for the Respondent	Mr Peter Woulfe
Solicitors for the Respondent	Sparke Helmore