Ware and Comcare (Compensation)
[2016] AATA 146
•11 March 2016
Ware and Comcare (Compensation) [2016] AATA 146 (11 March 2016)
Division
GENERAL DIVISION
File number
2014/2329
John Ware
APPLICANT
And
Comcare
RESPONDENT
DECISION
Tribunal Dr James Popple, Senior Member Date 11 March 2016 Place Canberra Comcare’s decision on 7 March 2014 is set aside and, in substitution, the following decision is made:
Comcare is liable, under s 14 of the Safety, Rehabilitation and Compensation Act 1988, to pay compensation in respect of the injury that the applicant sustained when the bus he was driving hit a pothole on 3 April 2012. Under s 7(4) of the Act, the applicant is taken to have sustained that injury on 26 August 2013. Comcare shall pay the applicant’s costs of these proceedings.
..............[sgd]..........................................................
James Popple, Senior Member
CATCHWORDS
COMPENSATION — Commonwealth employees — claim for ‘injury’ or ‘disease’ — whether employment caused or aggravated the condition — whether employment contributed to a significant degree to Applicant’s condition — date of injury — decision under review set aside and substituted.
COMPENSATION — jurisdiction — scope of claim for compensation — whether jurisdiction to consider claim for aggravation of an injury or an ailment of Applicant’s right shoulder.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, ss 5A(1), 5B(1), 5B(3), 7(4), 14, 62, 67(8)
CASES
Abrahams v Comcare (2006) 93 ALD 147
Buttfield and Comcare [2001] AATA 335
Durham and TNT Australia Pty Ltd (2011) 124 ALD 136
Kennedy v Comcare (2014) 63 AAR 100
Lees v Comcare (1999) 56 ALD 84
Mellor v Australian Postal Corporation (2009) 108 ALD 159
Munswamy v Australian Postal Corporation (2015) 67 AAR 16
Szabo v Comcare (2012) 58 AAR 152
Walshe and Comcare [2013] AATA 812
REASONS FOR DECISION
Dr James Popple, Senior Member
11 March 2016
Summary
I set aside Comcare’s decision that it is not liable to compensate the applicant for his right shoulder injury. The applicant was driving a bus, which hit a pothole. Hitting the pothole aggravated a pre-existing condition in his right shoulder. That aggravation is a disease as defined in s 5B(1) of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act). That disease is an injury as defined in s 5A(1)(a). That injury has resulted in impairment: an impingement of the applicant’s right shoulder. Comcare is liable, under s 14, to pay compensation in respect of that injury. The applicant is taken, under s 7(4), to have sustained the injury when he first sought medical treatment for the aggravation: on 26 August 2013.
Background
Mr John Ware started working for the Australian Capital Territory Internal Omnibus Network (ACTION) in 1986. He started as a spray painter, and later worked as an auto-electrician and as a bus driver. From 1999 he was a part-time bus driver. Since 2003 he has driven buses full time. He is 54 years old.
On 16 October 2009, Comcare accepted liability for compensation in respect of an injury that Mr Ware suffered to his neck. On 5 April 2012, Comcare accepted liability for compensation in respect of an injury that Mr Ware suffered to his left shoulder.
On 3 October 2013, Mr Ware made a claim for workers’ compensation in relation to his right shoulder. On 10 December 2013, Comcare denied that it was liable to pay compensation under s 14 of the SRC Act.
On 7 January 2014, Mr Ware requested a reconsideration of that determination. On 7 March 2014, Comcare affirmed its determination.
On 7 May 2014, Mr Ware applied to the Tribunal, under s 64 of the SRC Act, for review of that decision.
On 23 March 2015, this matter was listed for hearing on 29 and 30 June 2015. Within the first 10 minutes of the hearing, it emerged that Mr Ware had not been provided with a copy of one of the medical reports prepared for Comcare. With the consent of both parties, I adjourned the hearing until a date to be fixed. On 10 August 2015, the matter was re-listed for hearing on 30 November and 1 December 2015. Unfortunately, those two days proved insufficient for all of the evidence to be given. On 2 December, the matter was listed for a further day’s hearing on 29 February 2016. It is regrettable that (as a result of a document not having been provided before the hearing, and the subsequent restricted availability of witnesses, counsel and the Tribunal) this matter ended up being heard on four days over a period of eight months.
Decision under review
The decision under review is Comcare’s decision on 7 March 2014 to affirm its determination that Comcare is not liable to pay compensation to the applicant in respect of his right shoulder.
Issues
The parties disagree about the scope of Mr Wares’ claim and, therefore, the precise nature of the reviewable decision. Subject to that jurisdictional issue, the issues in this review are whether Mr Ware:
·suffered a disease—that is, an ailment or an aggravation of an ailment that was contributed to, to a significant degree, by his employment (ss 5A(1)(a) and 5B(1) of the SRC Act);
·suffered an injury simpliciter to his right shoulder arising out of, or in the course of, his employment (s 5A(1)(b)); or
·suffered an aggravation (arising out of, or in the course of, his employment) of an injury to his right shoulder (s 5A(1)(c)).
If one of these three circumstances applies, then Mr Ware has suffered an injury and Comcare is liable, under s 14 of the SRC Act, to pay him compensation. If Mr Ware has suffered an injury, an issue also arises as to the date of that injury.
The pothole incident and the events that followed
Mr Ware gave evidence about the events that, he says, caused him to suffer an injury to his right shoulder while driving an ACTION bus. Comcare disputes several aspects of his evidence. I generally accept Mr Ware as a witness of truth in relation to these events. As noted below, I do not accept all of his evidence in relation to his medical conditions.[1] Having regard to Mr Ware’s evidence, and some supporting documents, I make the findings set out in [11]–[16] below, on the balance of probabilities.
[1] See [20] below.
On 3 April 2012, Mr Ware was driving an ACTION bus, carrying passengers, when the bus struck a pothole in the road. (I will call this the pothole incident.) The steering wheel shook causing pain in his left shoulder. He let go with his left hand, holding the steering wheel with his right hand alone. He experienced pain in his right shoulder. The steering wheel ceased shaking as the bus slowed down. The shaking lasted about 10 seconds. He alerted a supervisor at the next interchange, and drove slowly to that interchange where he dropped off his passengers.
The bus had been scheduled to continue south, but Mr Ware was concerned about the roadworthiness of the bus. The supervisor asked him to drive the bus north to another interchange. He did so, and took the bus to the workshop at that interchange.
Mr Ware had not experienced pain in his right shoulder before the pothole incident. During the pothole incident, he experienced pain in both shoulders.
Mr Ware did not complete his shift, going home early that afternoon. He took sick leave the following day (4 April). He returned to work on 5 April.
On 26 April 2012, Mr Ware had an operation to remove a ganglion from his left wrist (the ganglion surgery). He took leave to recover from the ganglion surgery. He returned to work on 28 May 2012.
On 19 August 2013, Mr Ware had an operation on his left shoulder (the left shoulder surgery).
As already noted, Mr Ware made a claim for workers’ compensation in relation to his right shoulder on 3 October 2013. He claimed compensation for “right shoulder impingement syndrome”. At the hearing, he explained the delay of 18 months between the pothole incident and making his claim about his right shoulder was that he wanted to deal with his left shoulder. He said that his orthopaedic surgeon had said “[w]e’ll get the left one done first and then we’ll worry about the right shoulder”.
In his claim form dated 3 October 2013, and in an “accident/incident report” of the same date, Mr Ware refers to the pothole incident as having happened on 28 May 2012—almost eight weeks after it actually happened. I do not think anything turns on this—at least, I do not think that it detracts from the findings I have made above. In the claim form, Mr Ware also gave 28 May as the date when he “first [sought] medical treatment for [his] injury or illness”. That is the date of the first medical record of Mr Ware reporting pain in his right shoulder.[2] I think that Mr Ware was mistaken when he said that the pothole incident occurred on 28 May. The evidence is clear that it happened on 3 April.
[2] See [27] below.
Mr Ware says that the shaking of the steering wheel during the pothole incident was probably due to damage to the bus’s steering damper. He says that that was also the view of a mechanic he spoke to when he delivered the bus to the workshop and explained what had happened. There was some dispute about whether the bus that he was driving was fitted with a steering damper. Certainly, the mechanics at the workshop could not reproduce the problem with the bus’s steering. I do not need to make a finding about what caused the steering wheel to shake. I have already found that it did shake after the bus hit the pothole, and that the shaking of the steering wheel caused pain in each of Mr Ware’s shoulders during the pothole incident.
Mr Ware says that the reason that he did not work on the afternoon of 3 April and all of 4 April was that he was experiencing pain in both of his shoulders, following the pothole incident on 3 April. On 9 August 2012, Mr Ware’s general practitioner (GP) issued a medical certificate certifying that Mr Ware had attended hospital on 3 April 2012 for a pre-operative anaesthetist review for the ganglion surgery. Having regard to this fact, and the fact (discussed below[3]) that the first record of Mr Ware reporting pain in his right shoulder was made on 28 May 2012, I make no finding about the reason why Mr Ware did not work on the afternoon of 3 April or on 4 April.
[3] See [27] below.
Mr Ware also says that he has experienced some pain in his right shoulder ever since the pothole incident. I discuss the long term effects of the pothole incident below.
The medical evidence
There is a great deal of medical evidence before me. In addition, six medical practitioners gave evidence at the hearing:
·Dr Jo Crookes, Mr Ware’s GP;
·Dr Sindy Vrancic, the orthopaedic surgeon who performed the ganglion surgery and the left shoulder surgery on Mr Ware;
·Dr Anthony Cairns, a consultant orthopaedic surgeon;
·Dr Leon Le Leu, an occupational physician;
·Dr Virginia Pascall, an occupational physician; and
·Dr Geoffrey Stubbs, an orthopaedic surgeon;
When did Mr Ware report pain in his right shoulder?
Mr Ware saw his GP, Dr Crookes, on 16 April 2012: 13 days after the pothole incident. Her consultation notes mention his left shoulder pain, and that his condition had been “approved” (that is, Comcare had accepted liability for compensation in respect of his left shoulder). Her notes continue: “Recently had bus before Easter with a broken steering dampener and now shoulder has been worse since then”. At the hearing, Dr Crookes confirmed that this was a reference to Mr Ware’s left shoulder. There is no reference in her notes to his right shoulder.
On 16 April 2012, Dr Crookes referred Mr Ware to a physiotherapist. The letter of referral said that he had had a “significant flare of his accepted condition of left supraspinatus tendonitis”. There was no mention of Mr Ware’s right shoulder. Dr Crookes says that that was because the physiotherapist was “not allowed to treat a condition that’s not an accepted condition”.
Mr Ware says that he would have told Dr Crookes that he had pain in his right shoulder when he saw her on 16 April. At the hearing, Dr Crookes supported that:
So, my recollection is from one of our review appointments for his left shoulder during his return to work plan he mentioned that he had some pain in his right shoulder as well when he returned to work. We discussed and both of us were concerned that it might be related to having to rely on that arm more. … But then he presented after an incident where he described the bus hitting a pothole and him having trouble controlling the bus and he had to grab hold of the steering wheel with much more force and he was concerned his left arm wouldn’t be strong enough so most of the force was on his right. He described having some right shoulder pain after that incident.
Mr Ware also saw Dr Crookes on 23 and 30 April 2012. Her notes for 23 April refer to Mr Ware’s neck injury; her notes for 30 April refer to his left shoulder pain. There is no reference to his right shoulder.
Mr Ware saw Dr Crookes again on 28 May 2012. Her notes for that consultation refer to Mr Ware having returned to work that day, after having been on leave for five weeks following the ganglion surgery. Her notes also mention that both his shoulders and his neck were sore. This is the first record of Mr Ware having reported any pain in his right shoulder.
At the hearing, Dr Crookes was asked why, if Mr Ware had reported pain in his right shoulder as early as 16 April, the first record of such a report wasn’t until 28 May: the fourth consultation after the pothole incident. She explained that the consultation on 16 April:
… was a review of his left shoulder, so at that time we were discussing the left shoulder pain because it was worse but he did indicate right shoulder pain. I didn’t document that because I wasn’t reviewing his right shoulder at that time.
She had this to say about the consultation on 28 May:
Well he specifically presented 28 May for his right shoulder. That’s the first time he sought medical treatment for his right shoulder. He mentioned the right shoulder in the past related to recovering with his left shoulder, which at that time we thought was part of expected recovery, but he specifically came in on 28 May to discuss his right shoulder problem.
Mr Ware had 12 further consultations with Dr Crookes between 9 July 2012 and 30 July 2013. There is no reference to his right shoulder in her notes for those consultations. Dr Crookes could not recall, at the hearing, whether Mr Ware had mentioned his right shoulder to her at any of those consultations. Her notes for a consultation on 26 August 2013 include “Right shoulder has been an issue but left was always worse”. On that same day, she arranged for some diagnostic imaging of Mr Ware’s right shoulder.
On 13 May 2013, Dr Crookes had referred Mr Ware to Dr Vrancic in relation to his left shoulder pain. The referral letter does not mention his right shoulder. Mr Ware saw Dr Vrancic on 14 June and 23 July 2013. Dr Vrancic performed the left shoulder surgery on 19 August 2013. Mr Ware saw Dr Vrancic again on 27 August and 19 November 2013. There is no reference to his right shoulder in her notes for any of these consultations. At the hearing, Dr Vrancic said that she couldn’t say that Mr Ware didn’t mention his right shoulder at any of those consultations: “the right shoulder to my notes was not clinically relevant until after the left shoulder was fixed”.
Comcare contends that Dr Crookes must have been mistaken when she says that Mr Ware reported pain in his right shoulder to her on 16 April 2012. Comcare contends that he made no such report until 28 May 2012, when Dr Crookes made a record that he had done so. Dr Crookes explained that, during her consultations with Mr Ware, she deliberately did not mix consideration of accepted compensation issues (like his left shoulder injury) with other issues (like his right shoulder). Comcare notes that, even on 16 April 2012, Dr Crookes made notes about other issues relating to Mr Ware’s health but unrelated to either shoulder and unrelated to any compensation issue. It is certainly striking that Mr Ware’s right shoulder is mentioned in the notes of only two of the 17 consultations between 16 April 2012 and 26 August 2013.[4]
[4] I think it is less striking that there is no such reference in Dr Vrancic’s notes of four consultations between 14 June and 19 November 2013, given that Mr Ware had been referred to Dr Vrancic in relation to his left shoulder.
But I accept Dr Crookes’s evidence, and I find (on the balance of probabilities) that Mr Ware reported pain in his right shoulder when he saw Dr Crookes on 16 April 2012. I note that that finding is consistent with Mr Ware’s assertion that he has experienced some pain in his right shoulder ever since the pothole incident. I also find that medical treatment of his right shoulder did not commence until 26 August 2013, when Dr Crookes arranged for diagnostic imaging.
The MRI scan
Amongst the evidence before me is a report by Dr Jenny Bramley, a radiologist, about a magnetic resonance imaging scan (the MRI scan) of Mr Ware’s right shoulder conducted on 12 December 2013. Dr Bramley reported that the MRI scan showed a significant labral tear; acromioclavicular joint degenerative changes; predominantly iatrogenic subscapularis change with some tendinopathy; and tendinopathy of the supraspinatus.
There was general consensus amongst the six medical witnesses that a number of factors could have contributed to the condition of Mr Ware’s right shoulder as revealed in the MRI scan, though Dr Le Leu thought that the labral tear was most likely the result of trauma. The witnesses agreed that the MRI scan in December 2013 did not necessarily represent the state of Mr Ware’s right shoulder in April 2012. As Dr Vrancic explained, “there’s no way to date the injuries on an MRI scan”.
Mr Ware’s right shoulder
The medical witnesses generally confirmed Dr Bramley’s interpretation of the MRI scan: Mr Ware has a labral tear, tendinopathy and degenerative changes in his right shoulder.
Dr Vrancic diagnosed Mr Ware’s condition as impingement syndrome of his right shoulder. Dr Pascall noted that there were “a lot of degenerative features in that structure of the right shoulder”. Dr Vrancic said that the left and right shoulders “look very similar. They could almost be interchangeable”.
There was some difference of opinion about whether the pothole incident could have caused the labral tear. Dr Cairns said that a labral tear can occur as part of normal degeneration in the shoulder, and it can also occur as a result of a trauma. Dr Le Leu said that a labral tear “can be caused by other factors but most[ly] it is caused by trauma”. He thought it more probable than not that the onset of Mr Ware’s right shoulder symptoms resulted from the pothole incident. Dr Vrancic said that the pothole incident was one factor that contributed to Mr Wares condition (I discuss the second factor below).
Dr Stubbs said that “what I found in his right shoulder was consistent with degenerative rotator cuff disease, and I didn’t think that that episode he described was likely to have contributed materially to that”. He said that the pothole incident could not have caused the labral tear, though it could have aggravated the condition of Mr Ware’s right shoulder He added:
Labral tears are very over-diagnosed in middle-aged males. I ran a review on that and there’s certainly several studies of MRI being performed on middle-aged males who have no shoulder pain, no history of shoulder pain and no—and have been found to be normal on clinical examination and one particular study I have from—is that when a radiologist is asked to review the MRIs of those trouble-free shoulders, they will find labral tears or report labral tears present in between 50 and 72 per cent of the people. So the odds are that if you have a perfectly normal shoulder and you’re middle-aged and you get an MRI, it would be said you are more likely than not to be told you’ve got a labral tear.
Dr Pascall was of the view that the pothole incident “could have aggravated the right shoulder underlying complaint”, but that the labral tear was “not really located where I would expect a traumatic labral tear to be located”.
Dr Cairns said that the degenerative changes in Mr Ware’s acromioclavicular joint were almost certainly not related to the pothole incident. He said “it’s a degenerative change and the mechanism of injury described by Mr Ware wouldn’t be such as to … cause me to expect that his acromioclavicular joint would have been injured in the incident”. In his view, Mr Ware’s condition “derives from age-related, constitutional and smoking-related degenerative pathology”.
Asked to explain degenerative tendinopathy, Dr Stubbs said:
As we age our tendons start to break down, show degeneration. That’s a very common finding if you’re imaging people who have no pain, but it can be painful, and it causes a number of problems. Tennis elbow is the classic one that’s classified by rotator cuff tendinopathy. The tendinopathy is likely to resolve or improve, particularly with appropriate exercise problems, although being a degenerative condition it probably will progress silently over time.
Asked whether the condition of Mr Ware’s right shoulder could have been caused by trauma, he answered:
A sudden unanticipated loading on the shoulder will do that. It can come on with repetitive use, and it can come through no—with no apparent provoking cause.
Dr Le Leu said that “repetitive use of the shoulder” is “the most common cause of a tendinopathy”. Dr Stubbs said that:
Usually the onset of pain is delayed by hours, if not days, because the cause of the pain is the inflammatory response associated with a tear, and that will take many hours to develop. Although in talking to people, I notice that they often say they felt something in their shoulder, and then dismissed it or carried on with what they were doing, or thought it was of no consequence. And it wasn’t until later within the first three to four days they became aware of this problem.
Mr Ware says that he did not experience any pain in his right shoulder before the pothole incident. Dr Vrancic agreed that Mr Ware’s condition could have remained asymptomatic for a period: “it’s multifactorial and often it’s the final straw that will tip over from being asymptomatic to becoming symptomatic”.
The second factor that Dr Vrancic identified as contributing to the condition of Mr Ware’s right shoulder (apart from the pothole incident) was “the fact that he has a left shoulder injury since 2011 and has been undergoing treatment, including surgery and rehabilitation for that left shoulder injury”. She explained that:
When any patient is going through rehabilitation for an injured part, the contralateral side often picks up the slack and does a lot of extra work and I believe that there is an overuse component of the right shoulder in direct response to the left shoulder being injured and subsequently rehabilitated.
Dr Le Leu said that the condition of Mr Ware’s right shoulder would have been contributed to by his increased use of his right side because of decreased use of the previously injured left side. Dr Cairns agreed: “if someone’s one upper limb is impaired then they rely more upon the other upper limb”.
Dr Le Leu also said that, he would have expected the pain from a labral tear to have manifested within at most two to three weeks. Dr Pascall said that “if there’d been a sudden traumatic tear of the labrum, I would have expected the right shoulder would have outweighed the features of the left shoulder in terms of pain and disability”. Dr Cairns said that a labral tear “if it occurred at the time of the [pothole] incident would be particularly painful” and that he would expect it to be reported within “a matter of days, let alone weeks”. Dr Vrancic said that, if the pothole incident had caused trauma to Mr Ware’s right shoulder, she would have expected him to have presented immediately with pain and restricted movement: “pain that would keep him awake at night”.
There is no evidence that Mr Ware presented with such a high level of pain. At the hearing, Dr Crookes said (of the consultation on 16 April 2012):
I can’t tell you exactly what he said at that time, but he did mention that he grabbed the—well, I can remember he was telling me he grabbed the steering wheel in a different way to try and protect his left shoulder because he didn’t feel like he had the strength in his left shoulder. At the time he had some pain, but it settled at that time so he thought it was improving, even the left shoulder settled.
She said that Mr Ware had told her that he experienced some pain in his right shoulder because of the pothole incident, but “I don’t recall him describing sudden sharp, severe right-shoulder pain or anything like that”. She said that he had not presented with a significant amount of pain in his right shoulder. She added that, at the 16 April consultation, “he was describing that his left shoulder was much worse than before and he was worried about his left shoulder”.
Having considered this evidence, I make the following findings on the balance of probabilities. Mr Ware has a labral tear, tendinopathy and degenerative changes in his right shoulder. These combined to cause an impingement of his right shoulder. The labral tear, tendinopathy and degenerative changes were present before the pothole incident, but they were asymptomatic. The pothole incident aggravated the condition of his right shoulder.
In making those findings, I have had particular regard to the symptoms that Mr Ware reported in his right shoulder (as summarised in [46] above). Those symptoms are not consistent with the pothole incident having caused the labral tear (or the tendinopathy or degenerative changes), having regard to the evidence of Drs Cairns, Pascall and Vrancic (summarised in [45] above). For those reasons, I prefer the evidence of Drs Cairns, Pascall and Stubbs (that the pothole incident did not cause the condition in his right shoulder) to the evidence of Drs Le Leu and Vrancic (that it probably, or possibly, did).
Having considered the medical evidence, I also make the following finding on the balance of probabilities: the condition of Mr Ware’s right shoulder (including the labral tear) was caused by normal degeneration of the shoulder, and by him overusing his right shoulder to compensate for the condition of his left shoulder and the ganglion on his left wrist. In making the first part of that finding, I have had regard to the fact that the medical witnesses agreed that the MRI scan showed degenerative changes in the right shoulder. In making the second part of that finding, I have had regard to:
·Dr Vrancic’s opinion that there was “an overuse component of the right shoulder in direct response to the left shoulder being injured and subsequently rehabilitated”;[5]
·the opinion of Dr Le Lue and of Dr Cairns that such an overuse component was possible;
·Dr Pascall’s opinion that the ganglion surgery on his left hand had “incapacitated his left hand so he would be using his right arm quite a lot from the time of the surgery”; and
·the fact that, according to the consultation notes for each of the 19 times that Mr Ware saw Dr Crookes or Dr Vrancic between 16 April 2012 and 26 August 2013, the condition of his right shoulder (if it was mentioned at all) was less severe than that of his left.
[5] See [43] above.
I also find (on the balance of probabilities) that, of those three causes of the right shoulder condition, the dominant cause was normal degeneration of the shoulder. I make that finding on the basis of the preponderance of evidence for, and unanimity of opinion about, that degeneration having contributed.
Summary of medical findings
In summary, I have made the following findings based on the medical evidence. Mr Ware has a labral tear, tendinopathy and degenerative changes in his right shoulder, causing an impingement. This condition was caused by normal degeneration of the shoulder, and (to a lesser degree) by him overusing his right shoulder to compensate for the condition of his left shoulder and the ganglion on his left wrist. The condition was present before the pothole incident (on 3 April 2012) but was asymptomatic. The pothole incident aggravated the condition of his right shoulder. Mr Ware reported pain in his right shoulder on 16 April 2012. Medical treatment of his right shoulder commenced on 26 August 2013.
The scope of Mr Ware’s claim
Comcare says that I do not have the jurisdiction to consider a claim for an aggravation of an injury or an ailment in relation to Mr Ware’s right shoulder. Comcare says that Mr Ware never made such a claim and, as the Full Court of the Federal Court said in Szabo v Comcare, “until such a claim is made, and has been determined by Comcare, there can be no decision that could be the subject of review by the Tribunal”.[6]
[6] (2012) 58 AAR 152 at 162 [42] per Emmett and Greenwood JJ.
In support of its argument, Comcare referred me to the recent decision of the Federal Court in Munswamy v Australian Postal Corporation.[7] In Munswamy, the Tribunal had decided that the claim for compensation for an injury or aggravation could not succeed because what Ms Munswamy had written on her claim form meant that hers was “more by way of a nature and conditions claim”.[8] In the Federal Court, Ms Munswamy said that the Tribunal’s approach to her claim was narrow and pedantic, which was contrary to principle.[9] The Federal Court disagreed, and held that a “broad, generous and practical interpretation” of the claim yielded a result consistent with the approach that the Tribunal had taken.[10] This was a reference to the Court’s decision in Abrahams v Comcare:
In construing a document purporting to be a notice of injury under the [SRC] Act, a broad, generous and practical interpretation should be made, consistent with both the beneficial purposes of the Act and the likelihood that laypeople of differing levels of education, differing levels of medical advice and differing levels of legal advice (indeed in most cases they would not have any) will be giving the notice.[11]
[7] (2015) 67 AAR 16.
[8] [2014] AATA 757 at [80] per Ettinger SM and Isles M.
[9] (2015) 67 AAR 16 at 27 [21] per Jagot J.
[10] (2015) 67 AAR 16 at 29 [24] per Jagot J.
[11] (2006) 93 ALD 147 at 152 [18] per Madgwick J. Comcare points out that the claimant in Abrahams relied, in the Tribunal, on a general diagnosis. I do not think that means that this statement of principle does not apply to Mr Ware’s case.
In the “accident/incident report” form that Mr Ware filled out on 3 October 2013, he was asked to “[d]escribe the injury/illness and how it affects you”. He wrote “steering shook violently agrevateing [sic: aggravating] my shoulders”. However, as Comcare points out, there is no reference to aggravation in the claim form that Mr Ware provided to Comcare on that same day. Nor was there any reference to aggravation in the medical certificate provided by Dr Crookes in support of Mr Ware’s claim on 8 November. And, on 9 November, Dr Crookes wrote in a report, requested by Comcare, that:
There was no pre-existing condition in the right shoulder. There is no underlying condition causing this. Therefore it is not an aggravation of a pre-existing condition.
(Dr Crookes’s report was written before the MRI scan on 12 December 2013.)
On his claim form, Mr Ware wrote that the diagnosed condition was “right shoulder impingement syndrome”. When Comcare decided (on 10 December 2013) that it was not liable to pay Mr Ware compensation, and when it affirmed that decision (on 7 March 2014), it characterised his claim as being for “sprain of shoulder and upper arm”. Whether I have the jurisdiction to deal with Mr Ware’s claim of aggravation depends on the scope of his claim for compensation. As the Federal Court explained in Kennedy v Comcare:
… the Tribunal’s jurisdiction does not depend on how Comcare characterises the claim. To the contrary, “the Tribunal must assess for itself the true scope of the claim” and conduct the review on that basis.[12]
[12] (2014) 63 AAR 100 at 109 [45] per Katzmann J, citing Durham and TNT Australia Pty Ltd (2011) 124 ALD 136 at 145 [51] per Jagot J.
Comcare referred me to the decision of the Full Court of the Federal Court in Lees v Comcare.[13] In that case—actually two separate appeals, heard together—the Full Court decided that the Tribunal did not have jurisdiction to deal with a claim that had not been the subject of a reconsideration by Comcare under s 62 of the SRC Act. But in each of those appeals, the claim that was made in the Tribunal was very different to the claim that had been the subject of consideration then reconsideration by Comcare. In one appeal, Comcare had considered a claim for payment for taxi fares to the rooms of those providing treatment for the claimant’s injury; in the Tribunal, the claimant sought compensation for permanent impairment. In the other appeal, Comcare had considered a claim for rehabilitation and compensation in respect of major depression; in the Tribunal, the claimant sought compensation for permanent impairment and non-economic loss.[14]
[13] (1999) 56 ALD 84 per Wilcox, Branson and Tamberlin JJ.
[14] (1999) 56 ALD 84 at 84–86 [1]–[8] per Wilcox, Branson and Tamberlin JJ.
Comcare says that, as in the appeals decided in Lees, Mr Ware’s claim in this review is of an entirely different character to the claim that Comcare considered and reconsidered. I disagree. I think that a broad, generous and practical interpretation of Mr Ware’s claim means that the true scope of his claim includes a claim for aggravation. I do not think that it is relevant that his claim did not mention aggravation, or that Dr Crookes’s report specifically ruled out aggravation. The claim was in relation to a general condition in his right shoulder. Medical evidence obtained since his claim—some of it obtained before Comcare’s reconsideration of his claim[15]—has revealed that there was an underlying condition in Mr Ware’s right shoulder, which I have found was asymptomatic before, and aggravated by, the pothole incident.[16]
[15] For example, the MRI scan was conducted on 12 December 2013; Comcare’s reconsideration of Mr Ware’s claim was on 7 March 2014.
[16] See [47] above.
However, I think that the scope of Mr Ware’s claim is restricted in one important respect: I do not think it is open to him to argue, in this review, that the condition of his shoulder was affected by his work for ACTION other than driving buses. At the hearing, Mr Ware raised the possibility that the condition of his right shoulder, before the pothole incident, may have been contributed to by his work as a spray painter. It would appear that this issue was not raised at any time before the hearing. Comcare objected that it should not have to respond to such a nature and conditions claim. Mr Ware accepted that it was not open to him to argue that I should consider the entire period of his employment by ACTION up until 2012. I do not think that even a broad, generous and practical interpretation of Mr Ware’s claim could include a nature and conditions component within the scope of this review.
Is Comcare liable to pay Mr Ware compensation in respect of his right shoulder?
I have made findings of fact, including findings based on the medical evidence, and I have determined the scope of Mr Ware’s claim for the purposes of this review. I can now decide whether Comcare is liable to pay Mr Ware compensation in respect of his right shoulder.
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. Sections 5A and 5B of the SRC Act relevantly provide:
5A Definition of injury
(1)In this Act:
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
…
5B Definition of disease
(1)In this Act:
disease means:
(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.
…
(3)In this Act:
significant degree means a degree that is substantially more than material.
Did Mr Ware suffer a disease (ss 5A(1)(a) and 5B(1))?
Mr Ware says that, when the pothole incident happened, he suffered an aggravation of an ailment that was contributed to, to a significant degree, by his employment. He says that that aggravation is a disease (s 5B(1)) and an injury (s 5A(1)(a)).
I have found that the pothole incident aggravated the condition of his right shoulder.[17] Section 4(1) of the SRC Act provides that:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
The condition of Mr Ware’s right shoulder before the pothole incident was a physical ailment, disorder, defect or morbid condition of gradual development. It was clearly an ailment. So, the pothole incident was an aggravation of an ailment.
[17] See [47] above.
For that aggravation to be a disease under s 5B(1), the aggravation must have been contributed to, to a significant degree, by Mr Ware’s employment. (It is clear, from the definition of “disease” in s 5B(1), quoted above,[18] that it is the aggravation that has to be contributed to by employment, not the aggravated ailment.) I am not convinced that the pothole incident contributed to a significant degree to Mr Ware’s shoulder condition. But, as the Federal Court explained in Mellor v Australian Postal Corporation, the requirement is that “the employment be a material cause of the aggravation” not that “the effect of the aggravation be material”.[19]
[18] See [60] above.
[19] Mellor v Australian Postal Corporation (2009) 108 ALD 159 at 166 [36] per Bennett J. See also Walshe and Comcare [2013] AATA 812 at [46] per Creyke SM and Hughson M.
There is no doubt that Mr Ware’s employment contributed to the aggravation to a significant degree: that is, to a degree that is substantially more than material. He was driving the bus in the course of his employment when the bus hit a pothole and the condition of his right shoulder was aggravated. It follows that he suffered an aggravation of an ailment that was contributed to, to a significant degree, by his employment. That aggravation is a disease as defined in s 5B(1). That disease is an injury as defined in s 5A(1)(a). As Mr Ware has suffered an injury that has resulted in impairment (an impingement of his right shoulder), Comcare is liable, under s 14 of the SRC Act, to pay compensation in respect of that injury.
Did Mr Ware suffer an injury simpliciter (s 5A(1)(b))?
Mr Ware says that, when the pothole incident happened, he suffered a physical injury to his right shoulder arising out of, or in the course of, his employment. Because I have concluded that Mr Ware suffered an aggravation that is a disease and an injury (s 5A(1)(a)), I do not need to consider whether he also suffered an injury simpliciter (s 5A(1)(b)).
However, I have found that he did not suffer an injury at that time: the labral tear, tendinopathy and degenerative changes were present in his right shoulder before the pothole incident.[20] Accordingly, Mr Ware did not suffer an injury for the purposes of s 5A(1)(b).
[20] See [47] above.
Did Mr Ware suffer an aggravation (s 5A(1)(c))?
Mr Ware says that, when the pothole incident happened, he suffered an aggravation of an injury to his right shoulder. Because I have concluded that Mr Ware suffered an aggravation that is a disease and an injury (s 5A(1)(a)), I do not need to consider whether he also suffered an aggravation of an injury other than a disease (s 5A(1)(c)).
The date of Mr Ware’s injury
Section 7(4) of the SRC Act provides that:
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
Section 4(1) relevantly defines “medical treatment” to include:
(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or
(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; …
In Buttfield and Comcare, the Tribunal considered the question of when an employee first sought medical treatment for a disease. In that case, Comcare argued that treatment could involve simply attending at a doctor’s surgery and Mr Buttfield argued that something more than a mere attendance was required.[21] The Tribunal decided that “treatment can take the form of the provision of advice and diagnosis by a legally qualified medical practitioner”.[22]
[21] [2001] AATA 335 at [44] per Sassella SM. Part of the decision is also reported at (2001) 64 ALD 281, but not the parts relevant to this review.
[22] [2001] AATA 335 at [53] per Sassella SM.
Mr Ware reported the pain in his right shoulder to his GP on 16 April 2012. Nothing was done about the diagnosis or treatment of his right shoulder until 26 August 2013.[23] Dr Vrancic had told Mr Ware that they would deal with the left shoulder first “and then we’ll worry about the right shoulder”.[24] Mr Ware would appear to have been satisfied with that approach throughout at least 17 medical consultations over the intervening 16 months. During that period, Mr Ware’s focus (and the focus of Drs Crookes and Vrancic) was entirely on his other conditions, especially that of his left shoulder.[25] Considering s 7(4)(a), I do not think that Mr Ware could be said to have sought medical treatment for the aggravation of his right shoulder condition until 26 August 2013, when Dr Crookes arranged for diagnostic imaging of that shoulder.
[23] See [32] above.
[24] See [17] above.
[25] See [29]–[31] and [49] above. It follows that I disagree with Dr Crookes that Mr Ware first sought medical treatment for his right shoulder on 28 May 2012 (see [28] above).
Considering s 7(4)(b), there is no evidence before me that the aggravation of Mr Ware’s right shoulder resulted in an incapacity for work or impairment before 26 August 2013. For example, as noted above,[26] the medical certificate relating to his time off work immediately after the pothole incident certified that he was unable to work because of a pre-operative review for the ganglion surgery.
[26] See [20] above.
Accordingly, pursuant to s 7(4), Mr Ware is taken to have sustained the injury to his right shoulder when he first sought medical treatment for it: on 26 August 2013.
Costs
Section 67(8) of the SRC Act provides:
(8)Where, in any proceedings instituted by the claimant, the Administrative Appeals Tribunal makes a decision:
(a) varying a reviewable decision in a manner favourable to the claimant; or
(b) setting aside a reviewable decision and making a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision;
the Tribunal may, subject to this section, order that the costs of those proceedings incurred by the claimant, or a part of those costs, shall be paid by the responsible authority.
In this review, Mr Ware is the claimant and Comcare is the responsible authority.
My decision in this review involves setting aside a reviewable decision and making a decision in substitution that is more favourable to Mr Ware. Accordingly, I order that the costs of the proceedings in this review be paid by Comcare.
Conclusion
The pothole incident aggravated the condition of Mr Ware’s right shoulder. That aggravation is a disease (s 5B(1) of the SRC Act) and that disease is an injury (s 5A(1)(a)) which has resulted in impairment (a right shoulder impingement). Comcare is liable, under s 14, to pay compensation in respect of Mr Ware’s injury, which is taken to have been sustained on 26 August 2013 (s 7(4)).
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple .......[sgd].................................................................
Associate
Dated 11 March 2016
Dates of hearing
29 June, 30 November and 1 December 2015, 29 February 2016
Counsel for the Applicant Mr Karl Pattenden Solicitors for the Applicant Canberra Legal Group Counsel for the Respondent Ms Kristy Katavic Solicitors for the Respondent Australian Government Solicitor
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