Stuart John Berry and Telstra Corporation Limited - [2013] AATA 163

[2013] AATA 163

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2011/3910
Re	Stuart John Berry
APPLICANT
And	Telstra Corporation Limited
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	22 March 2013
Place	Melbourne

The Tribunal affirms the decision under review.

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

G. D. Friedman, Senior Member

COMPENSATION – right shoulder injury – previously accepted condition – whether liability for medical treatment - physiotherapy

Safety, Rehabilitation and Compensation Act 1988 s 16, 19

REASONS FOR DECISION

G. D. Friedman, Senior Member

22 March 2012

Stuart Berry has worked for Telstra Corporation since 1986 as a linesman/technician and on 13 July 2009 suffered an injury to his right shoulder and arm while installing a cable. The respondent accepted liability to pay compensation for subacromial bursitis of the right shoulder (the accepted condition).
On 20 July 2011 the respondent was not satisfied that any of Mr Berry’s current symptoms were related to the accepted condition, and made a reviewable decision that from 31 January 2011 he was no longer entitled to compensation for incapacity or medical expenses because the accepted condition had ceased to result in incapacity, impairment or the need for medical treatment. Mr Berry seeks review of the decision in respect of the refusal to pay compensation for medical expenses.

LEGISLATIVE BACKGROUND

Section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) provides:
16 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.
(2)Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.

ISSUE

Mr Berry did not pursue his application to review the decision not to pay him compensation for incapacity under section 19 of the SRC Act. The only issue before the Tribunal is whether the respondent is liable to pay Mr Berry compensation under s 16 of the SRC Act for the cost of 11 sessions of physiotherapy treatment during the period from 31 January 2011 to 27 July 2012.

IS THE RESPONDENT LIABLE TO PAY MR BERRY COMPENSATION FOR PHYSIOTHERAPY TREATMENT UNDERTAKEN DURING THE PERIOD FROM 31 JANUARY 2011 TO 27 JULY 2012?

Mr Berry told the Tribunal that his duties as an installer/repairer for the respondent include digging trenches, installing conduits and cables and involves manual labour. He explained that on 8 July 2009 he was engaged in rodding and roping involving the installation of new cable into a blocked conduit by pushing a rod into the cable to clear a blockage. He said that the work was very strenuous and tiring and he felt pain in his right shoulder. After three rostered days off the pain in the right shoulder persisted and radiated into the biceps region of his upper arm and down to the base of his right thumb. He had difficulty in raising his right arm. He said that he reported the injury to his supervisor and on 15 July 2009 he attended his general practitioner, who referred him for an x-ray and ultrasound. He attended a physiotherapist (Mr A Williams). Mr Berry stated that he was placed on light duties and continued working but the pain in his right shoulder persisted. He attended for an MRI scan.
Mr Berry said that he returned to work after the injury and was placed on light duties such as working in the store and driving a van until 31 January 2011 when he was cleared for normal duties. He said that although he returned to his pre-injury duties, there were some tasks that he found difficult, particularly when working for any length of time with his right arm above shoulder height. Similarly if required to do repetitive tasks his shoulder became painful. Despite this, Mr Berry stated that he has been able to manage his work duties because he adapts to his limitations and has a supportive team leader. He said that he has continued to consult his general practitioner from time to time and has required physiotherapy treatment when the pain increases. He noted that the physiotherapist recommended exercises to strengthen his right shoulder. Mr Berry emphasised that he has not made a full recovery from his injury and still requires some treatment, and is concerned that he would be vulnerable to further injury and/or deterioration of his existing injury if the supportive environment at work changes for any reason. He agreed that as a result of a careful and sensible approach and with modified duties he is pain-free on most days. He resists taking medication.
In respect of physiotherapy, Mr Berry stated that he consulted Mr Williams every week or fortnight shortly after his injury. In October 2009 he was referred to another physiotherapist, Mr J Thomas, whom he consulted regularly at first and then on a decreased basis until February 2011, when he ceased attendance because he was managing the injury, until resuming in August 2011 because of a general build-up of pain. He said that Mr Thomas commenced him on light exercises three times per day to strengthen the shoulder. As part of his treatment the physiotherapist massaged his shoulder and unlocked it by reducing tightness and stretching the shoulder muscles. He explained that from 31 January 2011 he consulted Mr Thomas whenever he experienced increased pain in his shoulder, and that he ceased attendance on 27 July 2012 because he could no longer afford the payments.
Under cross-examination Mr Berry agreed that in 2008, as a result of concerns about his weight, he was advised to commence a gymnasium program which included using light weights. He agreed that on occasions he used low-weight dumbbells purchased from the gymnasium as recommended to build up strength in his right shoulder. He also used the services of a personal trainer and succeeded in losing weight. He said that he continued the gymnasium program after the date of his injury until August 2011 but reduced his exercise regime.
Dr D King, general practitioner, told the Tribunal that Mr Berry has been attending the medical centre for a number of years, but she first became involved in treating the shoulder injury on 3 April 2010. She said that x-ray and radiology findings were consistent with the clinical picture of the work-related injury and Mr Berry was seen at the medical centre at regular intervals. He continued to experience pain intermittently but complied well with the return to work program as part of his rehabilitation. An MRI scan showed that Mr Berry's tendons were intact, with no obvious tear, but there was ongoing inflammation and stiffness in the joint.
In respect of treatment of the injury Dr King stated that this has included physiotherapy and a course of anti-inflammatories and pain-relieving medication as required. Mr Berry also had a steroid injection in the right shoulder and has made gradual improvement. Dr King said that Mr Berry is a stoic man who is aware of his limitations and is careful to avoid work duties that place pressure on his right shoulder. She emphasised that the right shoulder injury is likely to be a long-standing problem that will require constant monitoring and limitation of heavy lifting. She stated that if symptoms become worse Mr Berry would benefit from ongoing treatment for his injury in the form of regular physiotherapy and massage and occasionally anti-inflammatories and pain medication. Dr King acknowledged that there is a certain element of wear and tear or osteoarthritis in the right shoulder which may have accounted for some of his symptoms and has probably not helped his recovery.
Under cross-examination Dr King stated that she was unaware that Mr Berry ceased attending Mr Thomas for a number of months and that during this time he used dumbbells as part of an exercise regime. She agreed that when she examined Mr Berry on 10 January 2011 she reported that he has continued to improve gradually and that the right shoulder was not causing any problems. She assessed him as being suitable to return to a trial of normal duties. She agreed further that on 31 January 2011 she recorded that Mr Berry was ready for clearance to return to normal full-time duties.
In a report dated 16 October 2009 Dr P Sharman, consultant occupational physician, stated that Mr Berry had been referred to him for an opinion and management of ongoing right shoulder symptoms. Dr Sharman noted that Mr Berry had undergone physiotherapy including hands-on treatment and neural stretches. He had returned to work on restricted duties. Dr Sharman concluded after viewing x-ray and ultrasound results that the right shoulder showed some evidence of subacromial impingement and degenerative changes affecting the AC joint, and that the ongoing symptoms probably relate to his subacromial bursitis and associated impingement, although it is possible that the AC joint is the source of some of the symptoms. Dr Sharman arranged for the referral to Mr Thomas.
Mr P Mangos, general surgeon, stated in a report dated 30 March 2012 that Mr Berry suffers from mild tendonitis and bursitis of the right shoulder, plus possible AC joint dysfunction with pain. He concluded that the injuries have stabilised but will continue indefinitely and will be subject to variations from time to time depending on Mr Berry's activities. Mr Mangos told the Tribunal that the condition is chronic and is subject to flare-ups from time to time. He said that in those circumstances physiotherapy might assist.
Mr Thomas told the Tribunal that following the referral by Dr Sharman he initially assessed Mr Berry on 5 October 2009 and found that Mr Berry held his right shoulder in a compromised position. He said that his prognosis on first presentation was that with specific strengthening and control exercises Mr Berry should make a near full recovery from his injury, but this process took longer than expected and Mr Berry complained of ongoing discomfort in the right shoulder. He said he commenced Mr Berry on a series of specific shoulder girdle repositioning and strengthening exercises over the ensuing months and that Mr Berry improved and showed a gradual increase in function with a return to increased work and home duties. Mr Thomas stated that on 11 February 2010 he discussed a gymnasium program with Dr Sharman and this was organised for Mr Berry. He said that Mr Berry's improvement continued until 3 February 2011 when Mr Berry was discharged from further treatment because he felt that he could not help any further, even though Mr Berry had not completely recovered from his injury.
Mr Thomas explained that following a review by a rheumatologist Mr Berry resumed physiotherapy treatment on 11 August 2011. He said that Mr Berry complained of right shoulder pain when lifting dumbbells that weighed 10 to 12 kg each at the gymnasium, although Mr Thomas said that he had not recommended the use of dumbbells. Treatment consisted of specific soft tissue mobilisations, strength work and ultrasound and ceased on 12 October 2011. Mr Thomas said the next review was on 16 March 2012 when Mr Berry presented with right shoulder pain and some left shoulder pain. He said that his final review occurred on 27 July 2012 when Mr Berry reported that his right shoulder pain had improved. A summary of treatment showed that Mr Berry attended physiotherapy on 11 occasions from 31 January 2011 to 27 July 2012.
In a report dated 12 August 2009 Mr W Wearne, consultant orthopaedic surgeon, stated that he examined Mr Berry on 11 August 2009 and diagnosed subacromial bursitis of the right shoulder which was caused by work-related activity on 8 July 2009. He noted that Mr Berry was undergoing physiotherapy three times per week with Mr Williams and stated that this treatment was reasonably required until the symptoms subsided, which Mr Wearne predicted would occur over the next three or four weeks, after which all treatment should cease. Mr Wearne stated that Mr Berry was capable of working full-time in alternative duties with appropriate restrictions.
In a further report dated 19 July 2012 Mr Wearne stated that he re-assessed Mr Berry on 26 June 2012 and noted that following the previous assessment Mr Berry had continued to work full-time using sensible precautions and a lifting limit of 20 kg. He said that Mr Berry reported tightness and pain in his right shoulder and had resumed physiotherapy treatment with Mr Thomas. Mr Wearne found no muscle wasting or deformity of the right shoulder and no areas of tenderness. He said that Mr Berry could manage a full range of movement in the right shoulder although there were occasional twinges of pain. Mr Wearne stated that he could find no reason to change any of his conclusions following the 2009 assessment, and stated that the condition had subsided to an extent that any symptoms and disability arising from it were trivial and inconsequential. He said that Mr Berry has not reasonably required treatment for the injury since 31 January 2011. He noted that Mr Berry is currently performing labouring work and is not undergoing any treatment, apart from performing his own stretching exercises at home. He said that there is a probability that osteoarthritic changes noted in x-rays of Mr Berry's right shoulder could explain the current symptoms, and that physiotherapy would not necessarily assist.
Mr M Shaw told the Tribunal that he has been Mr Berry's team leader for eight years and was responsible for allocating alternative duties to Mr Berry following the injury. He said that after Mr Berry gained clearance to resume pre-injury duties in January 2011 he has worked with Mr Berry and team members to ensure that lifting restrictions are adhered to and that tasks that may exacerbate Mr Berry’s right shoulder pain are modified as far as possible. He stated that since the clearance Mr Berry has not reported any problems with his work activities. Mr Shaw described Mr Berry as a good worker with a sound work ethic who has acted sensibly in the performance of his duties in the circumstances.
The Tribunal accepts the medical evidence that the right shoulder condition has improved considerably, to the extent that in January 2011 Dr King concluded that Mr Berry’s shoulder was not causing problems and that he was ready for clearance to return to pre-injury duties. Since then Mr Berry has been working full-time normal duties with modifications to his work practices. The Tribunal accepts that Mr Berry has adopted a sensible approach to his work and is a valued team member. The Tribunal also accepts Mr Berry’s evidence that he has been performing his pre-injury duties on a full-time basis since January 2011 and has managed the symptoms well by avoiding repetitive or other tasks that might exacerbate his right shoulder pain. His team leader is supportive and helpful in accommodating his special needs. Mr Berry has not reported any problems to his team leader since returning to full-time duties.
Despite the prediction in 2009 by Mr Wearne that symptoms would resolve within three or four weeks, the evidence by Mr Mangos and agreed to by Mr Wearne that there will be some flare-ups from time to time is realistic, and the Tribunal finds that Mr Berry is not symptom-free at all times. However the Tribunal is satisfied that x-rays and MRI scans have revealed the presence of degenerative osteoarthritic changes in the AC joint which may benefit from physiotherapy treatment from time to time. In addition the Tribunal accepts the evidence from Mr Thomas that in August 2011 Mr Berry complained of right shoulder pain when lifting dumbbells weighing 10 to 12 kg each that had not been recommended by Mr Thomas. The Tribunal is satisfied that the gymnasium attendance began as part of a weight loss program before the injury and continued after the injury on a reduced basis.
For these reasons the Tribunal is not reasonably satisfied that the 11 sessions of physiotherapy with Mr Thomas in the period from 31 January 2011 to 27 July 2012 were the result of flare-ups arising from work-related activities. Consequently Mr Berry has not reasonably required medical treatment for the injury in the form of physiotherapy and is not entitled to compensation under section 16 of the SRC Act by way of reimbursement of the cost of these sessions.

DECISION

The Tribunal affirms the decision under review.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member

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Associate

Dated 22 March 2013

Dates of hearing	22 October 2012, 18 and 19 March 2013
Counsel for the Applicant	Ms C Serpell
Solicitors for the Applicant	Ryan Carlisle Thomas
Counsel for the Respondent	Mr J Wallace
Solicitors for the Respondent	Sparke Helmore