Torr and Cleanaway Operations Pty Ltd (Compensation)
[2022] AATA 2134
•30 June 2022
Torr and Cleanaway Operations Pty Ltd (Compensation) [2022] AATA 2134 (30 June 2022)
Division:GENERAL DIVISION
File Number: 2020/7099
Re:Robert Torr
APPLICANT
AndCleanaway Operations Pty Ltd
RESPONDENT
Decision
Tribunal:Senior Member P.Q. Wood
Date:30 June 2022
Place:Melbourne
The Tribunal sets aside the Reviewable Decision, and in substitution decides:
1.the Applicant suffered incapacity and impairment as a result of a left shoulder condition which arose out of or in the course of employment with the Respondent on or about 3 March 2020, the subject of a claim for compensation dated 4 June 2020, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
2.the Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
............................[sdg]............................................
Senior Member P.Q. Wood
Catchwords
COMPENSATION – left shoulder condition – whether condition suffered is an injury or a disease – whether arose out of or during the course of employment – reviewable decision set aside
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)Cases
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537
REASONS FOR DECISION
Senior Member P.Q. Wood
30 June 2022
Introduction
On 16 November 2020, Robert Torr (“the Applicant”) applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of a decision made by Cleanaway Operations Pty Ltd (“the Respondent”) on 24 September 2020, which affirmed an earlier determination dated 30 July 2020 denying liability for the Applicant’s claimed left shoulder condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”).
Mr K Pattenden appeared for the Applicant and Mr C Clark appeared for the Respondent before the Tribunal.
Oral testimony was heard from the Applicant, Dr Zahib Iqbal, Dr Brett Jackson, Dr Garry Grossbard and Dr Peter Steadman.
The matter was heard on 16 and 17 December 2021.
For the reasons below, the Reviewable Decision is set aside.
Background
The Applicant is a 61-year-old male who commenced employment as a Front Lift Driver with the Respondent on 25 January 2016.
On 3 March 2020, an incident report was completed regarding the incident that caused the left shoulder condition. It describes that the Applicant was pulling a 3 tonne organics Coles bin, which he then lost control of, and which pinned him to the wall, causing the claimed condition. The same day, a medical certificate was completed by Dr Iqbal relevant to a condition described as ‘muscular injury shoulders and ribs bilateral’. The Applicant resumed work, after being certified as fit for suitable duties, on a restricted basis, for a week.
On 10 March 2020, the Applicant underwent an ultrasound and x-ray on his left shoulder, which revealed supraspinatus tendinosis with a partial tear of the anterior supraspinatus near the insertion.
The Applicant subsequently lodged a claim for workers compensation for the left shoulder condition, which was refused on 30 July 2020, and then refused again on 24 September 2020 after reconsideration, on the basis that the Respondent on the day of the incident, 3 March 2020, did not contribute to, to a significant degree, either the causation or aggravation of the claimed condition, and that the Applicant had not suffered an injury or disease pursuant to ss 5A or 5B of the SRC Act.
issues
The issue before the Tribunal is whether the Applicant is entitled to compensation under s 14 of the SRC Act for the left shoulder condition. Subsequently, the Tribunal must consider:
1.whether the Applicant’s left shoulder condition is considered a ‘injury’ or a ‘disease’ in accordance with ss 5A and 5B of the SRC Act; and if so
2.whether the ‘injury’ arose out of, or in the course of the Applicant’s employment with the Respondent; or
3.whether the ‘disease’ was contributed to, to a significant degree, by the Applicant’s employment with the Respondent.
legislation
Liability for compensation arises under s 14 of the SRC Act in respect of an injury suffered by an employee that results in death, incapacity for work, or impairment.
‘Injury’ is defined under s 5A(1) of the SRC Act to mean:
(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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
The definition of ‘disease’ is found under s 5B(1) of the SRC Act, which includes:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
The term “ailment” is defined by s 4(1) to mean ‘any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)’.
“Aggravation” includes acceleration or recurrence (s 4(1) of the SRC Act). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537 at 593:
“Aggravation” means, I think, that an existing disease has been made worse, not that it has simply become worse. “Acceleration” I have previously said and venture to repeat “probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli” (Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626, 639-640) [citation included] …
Under s 5B(2) of the SRC Act a number of matters may be taken into account when determining whether the ailment, or its aggravation, meets the causal test in s 5B(1):
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee’s health.
consideration
The evidence considered by the Tribunal includes:
1.the documents lodged by the respondent pursuant to s37 of the Administrative Appeals Act 1975, called the T Documents;
2.the Applicant’s statement dated 9 March 2021;
3.various medical reports and other tendered documents, comprising Exhibits A1, A2, R2 and R3; and
4.the oral evidence of:
(i)the Applicant;
(ii)Dr Zahib Iqbal, general practitioner;
(iii)Dr Brett Jackson, orthopaedic surgeon;
(iv)Dr Garry Grossbard, orthopaedic surgeon; and
(v)Professor Peter Steadman, orthopaedic surgeon.
I also considered the submissions of the parties, including the submissions of the parties put forward after the transcript of the hearing became available.
The Applicant
As I have remarked above, the Applicant is a 61-year-old male who is employed as a driver for the Respondent.
The Applicant’s evidence is that his work involves physically moving large, 3-tonne commercial rubbish bins into position, so that he can then access the bins in order to empty them using forks attached to his truck.
The Applicant gave evidence that on 3 March 2020 he was doing just that, when he lost control of a bin, which struck him, causing the beforementioned left shoulder condition.
The events are summarised in the Applicant’s statement dated 9 March 2021 which states, in part:
On 3 March 2020 at about 11.00am in the morning I attended at the Coles store at Moonee Ponds in order to empty their bin. When I got there, a Coles truck was at the loading dock so I could not get my truck close to the dock to get access to the bin. There is a fifteen minute wait time at this store but my truck would have been blocking other traffic so I decided to move the bin to an area where I could empty it rather than wait and hold up other traffic. A Coles employee who I know as Bill helped me move the bin. In order to get the bin to my truck, Bill and I had to push the bin down a concrete slope. I was in front of the bin trying to guide it and Bill was pushing from the rear of the bin. The bin was full and very heavy. As we were moving the bin down the slope it started to gain speed. Bill yelled out words to the effect ‘Get out of the way, it’s gone’. I tried to slow the bin up by pushing back against it but it was too heavy and wouldn’t stop rolling.
The bin hit a gutter and channel and that stopped it as it couldn’t travel any further. Behind the kerb was a wall. The gap between the bin (now up against the gutter) and the wall behind it was very narrow. I was caught in that gap. I was sideways in the gap and was about to run to exit the space but didn’t have time. The bin struck me on the left side and my right arm was pressed against the wall.
As this happened so quickly, I am unsure of the positioning of my left arm when I was struck. It may have remained in contact with the bin, via a rail I had been holding on to, trying to stop the bin’s progress.
In order to get out, I had to twist and turn so that my back was against the wall and then I squeezed out through the gap between the bin and the concrete wall. Bill asked me if I was alright and I said ‘I think so, I didn’t hear anything crack’. The incident report says that the bin’s impact with me was significantly lessened by it striking a gutter that ran parallel with the concrete wall. This is not correct.
I was a bit shaken after the incident but managed to walk back to my truck. I moved the truck closer to the bin so that I could empty it. Each bin is weighed by the truck when it is on the forks, before it is emptied. I noticed the weight of the bin was 1,200 kilograms. After emptying the bin I rang Cleanaway’s health and safety representative, Corey Smith, and explained what had happened. He said he would arrange an ambulance but I told him I thought I would be able to drive the truck back to the depot. While driving back to the depot I felt pain in my left arm, shoulder and chest.
When I got back to the depot, the acting Supervisor, Haydn Azzopardi, took me to the Sonic Health Clinic for treatment. The doctor gave me a medical certificate allowing me to do light duties. The doctor also arranged for an ultrasound and referred me for physiotherapy. I believe the ultrasound found that I had tear in the supraspinatus tendon and bursitis.
On my return to work I did some office duties for a week then did driving duties emptying bins. Another employee was assigned to be with me in the truck to pull the bins out so that I did not have to physically handle the bins. I did light driving duties for about three months but my left arm and shoulder weren’t improving. I decided to see another doctor and attended at Goonawarra Medical Centre in about early June 2020. That doctor referred me to Mr Jackson, an Orthopaedic Surgeon. Mr Jackson arranged for me to have an MRI and then recommended I have an operation on my left shoulder. Since June 2020 he has been certifying me as unfit to undertake any employment. Aside from having physiotherapy, I have also been taking anti-inflammatories and pain killers. I try not to take medication as I don’t like taking it. I lodged a claim for compensation but that claim was denied by Cleanaway.
I observe that the Applicant’s oral testimony was candid, and he was carefully cross- examined. I observe that his oral testimony was consistent with his statement of 9 March 2021, and that he responded to a series of questions in a forthcoming manner and without hesitation. I find the Applicant to be a credible witness.
Dr Zahib Iqbal
Dr Iqbal is a general practitioner who gave oral testimony and provided a statement dated 3 November 2021 (Exhibit A1, p 142), in relation to his assessment and diagnosis of the Applicant on 3 March 2020. He completed his medical training in Pakistan and has been practicing medicine for more than 30 years with an interest in occupational medicine.
Dr Iqbal told the Tribunal that in his view the tear to the left shoulder occurred during the incident on 3 March 2020. Dr Iqbal confirmed the left shoulder condition by ultrasound and said that there was no evidence of previous injury.
For completeness, it is appropriate that I record that in cross-examination Dr Iqbal acknowledged that he made a typing error on 3 March 2020 and noted the Applicant as having an injury to his right side. Dr lqbal told the Tribunal that his clinical notes from 10 March 2020 onwards properly reflect the Applicant complaining of the left shoulder condition.
Dr Brett Jackson
Dr Jackson is an orthopaedic surgeon who gave oral testimony and provided a statement dated 25 June 2020 (Exhibit A1, p 158-159), in relation to his assessment and diagnosis of the Applicant.
In his report dated 25 June 2020, Dr Jackson opined:
Examination
Mr Torr presents as a well looking gentleman albeit with a high BMI. There is no marked upper limb muscle wastage. He has active forward flexion to 110 degrees and abduction 90 degrees. External rotation is symmetrical to 30 degrees. He does have difficulty with internal rotation to the buttock height associated with tenderness in the upper arm. He has good power to internal / external rotation and no major tenderness over the AC joint but there is some over the anterolateral acrimony. Impingement testing negative. He is positive to supraspinatus isolation testing with tenderness in the upper arm with 3+ /5 power.
Radiology
Left shoulder ultrasound has been reviewed and is described above.
Assessment
Left Shoulder
Supraspinatus tendon tear and failure to respond to non operative management.
In a letter dated 16 December 2020 to the Goonawarra Medical Centre (Exhibit R2, p 46-47), Dr Jackson expressed his disagreement with the opinion of Professor Steadman (see below) and wrote:
Mr Robert Torr attends today for my review as his workcover claim has been rejected on the report of Professor Steadman which was conducted via Telehealth from Brisbane. In this report, Professor Steadman states that he is unable to see how the mechanism of injury would have caused the rupture. Robert was caught side on with the left shoulder forward and as such, this is taken the majority of the impact and he was not on his back. The bin was very heavy and there does not need to be a great overhead movement in order to rupture the cuff.
I have asked Robert to proceed with the conciliation process and hopefully his claim will be accepted therefore allowing Robert to proceed with surgical repair of the tendon.
Dr Garry Grossbard
Dr Grossbard is an orthopedic surgeon who gave oral testimony and provided a statement (Exhibit A1, p 136-139), in relation to his assessment and diagnosis of the Applicant. Dr Grossbard has been practising in orthopaedic medicine since 1978.
In his report dated 11 March 2021, Dr Grossbard opined:
OPINION
This man has a tear of the rotator cuff which has become symptomatic. The symptoms developed following the incident of 3rd March 2020. Whilst Mr. Steadman in his report of 6th July 2020 is correct in suggesting there may have been a pre-existing tear in the rotator cuff, this was asymptomatic until the incident of March 2020. To this end I believe the incident has aggravated the situation and made it persistently symptomatic.
It is on the development of symptoms following a very specific incident that I base my contention. Mr. Steadman has suggested the absence of specific clinical notes should be considered as evidence against acceptance of this man’s claim. I vehemently differ with this opinion. This man has not had previous shoulder issues other than short-lived pain thirty-five years ago.
Professor Peter Steadman
Professor Steadman is an orthopaedic surgeon who gave oral testimony and provided a statement dated 6 July 2020, in relation to his assessment and diagnosis of the Applicant.
Professor Steadman is of the opinion that the Applicant suffers from a left shoulder injury but considered that such injury is:
not likely to be related to employment as it is difficult for him to articulate the specifics of how he sustained an injury to the left shoulder that could cause a rotator cuff tear other than reporting the left shoulder was uncomfortable shortly after the event, which he describes as being shaken from.
Whilst I acknowledge Professor Steadman’s vast experience, I observe that the Applicant presented before the Tribunal as a relatively unsophisticated man, and I am not surprised that at times he may not have been able to articulate particulars of the incident on 3 March 2020, particularly given the shock he would have experienced in the context of the extraordinary weight of the bin which he must have known would (and did) strike him. It is through this prism that I also view the supposed “inconsistencies” which were raised by the Respondent. It follows that I am inclined to attach less weight to Professor Steadman’s evidence in this respect.
I observe that Professor Steadman acknowledges the existence of a soft tissue and muscular injury, which is a basis for me to set aside the previous decision.
On balance overall, I find that the evidence of Professor Steadman was of lesser assistance to the Tribunal when compared to the cumulative evidence of Dr Iqbal (the initial treating practitioner) and orthopaedic surgeons Dr Jackson and Dr Grossbard, whose opinions and views regarding the Applicant’s condition were all consistent, entirely convincing and supported by the evidence. I find that the Applicant’s left shoulder condition arose out of or in the course of his employment on 3 March 2020.
Consistent with the acceptance of the evidence of the Applicant and Drs Iqbal, Jackson and Grossbard, I find that the Applicant suffered incapacity and impairment as a result of a left shoulder condition, which arose out of or in the course of employment with the Respondent on or about 3 March 2020.
CONCLUSION
In light of the matters set out above, I find it correct and preferable to set aside the reviewable decision and make a substitute decision in favour of the Applicant. Consequently, it is appropriate to also make a costs order.
DECISION
The Tribunal sets aside the Reviewable Decision, and in substitution decides:
(a) the Applicant suffered incapacity and impairment as a result of a left shoulder condition which arose out of or in the course of employment with the Respondent on or about 3 March 2020, the subject of a claim for compensation dated 4 June 2020, and which gives rise to entitlement to compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth); and
(b) the Respondent shall pay the Applicant’s costs and disbursements in respect of this Application pursuant to s 67 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
40. I certify that the preceding 39 (thirty nine) paragraphs are a true copy of the written reasons for the decision of Senior Member P.Q. Wood
...........................[sdg].........................................
Associate
Dated: 30 June 2022
41. Dates of hearing:
42. 16 and 17 December 2021
43. Counsel for the Applicant:
44. Karl Pattenden
45. Solicitors for the Applicant
46. Maurice Blackburn Lawyers
47. Counsel for the Respondent:
48. Charles Clark
49. Solicitors for the Respondent:
50. HWL Ebsworth Lawyers
EXHIBIT REGISTER
File No 2020/7099
Between Robert Torr (Applicant)AndCleanaway Operations Pty Ltd (Respondent)
Heard on 16 and 17 December 2021
Before Senior Member P. Q. Wood
EXHIBIT DESCRIPTION OF EVIDENCE
A1
Applicant’s Tender Bundle, comprising of 203 pages including T Documents
A2
T Documents, T9
R2
Respondent’s Evidence Bundle
R3
Notes of Dr Peter Steadman
Key Legal Topics
Areas of Law
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Employment Law
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Negligence & Tort
Legal Concepts
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Causation
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Appeal
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Costs
0
2
1