Weston and Cleanaway Operations Pty Ltd (Compensation) - [2018] AATA 3740

Weston and Cleanaway Operations Pty Ltd (Compensation) [2018] AATA 3740 (5 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0753
2017/6454

Re:Stephen Weston
APPLICANT

AndCleanaway Operations Pty Ltd
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:5 October 2018
Place:Perth

In applications 2017/0753 and 2017/6454 the Tribunal:
1. sets aside the reviewable decisions and in substitution for those decisions makes the determination that:
a. the Respondent is liable under s 16 of the SRC Act for the cost of the surgery undertaken by Dr Khoo on 27 July 2018 and all other costs associated with that surgery: and
b. the Respondent is liable under s 19 of the SRC Act to pay to the Applicant compensation in respect of the Applicant’s partial incapacity for work.

2. directs that the Respondent pay the costs incurred by the Applicant in applications 2017/0753 and 2017/6454.
......[sgd]..................................................................
Deputy President Boyle
CATCHWORDS
COMPENSATION – not presently liable under s 16 and s19 of the SRC Act – left shoulder injury – jurisdiction – whether the decisions are reviewable decisions – the Tribunal has jurisdiction – whether the proposed surgery is reasonable medical treatment – the decisions under review are set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 37(1)
Safety, Rehabilitation and Compensation Act 1988 (Cth) – ss 14, 16, 19, 54(1), 60, 62, 62(1) – (5), 64
CASES
Johanson and the Civil Aviation Safety Authority [2012] AATA 239
Lees v Comcare [1999] FCA 753
Lock and Comcare [2018] AATA 2386
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Taylor v Secretary to the Department of Social Security (1998) 18 FCR 322
Woodbridge v Comcare [1994] FCA 1249
REASONS FOR DECISION
Deputy President Boyle
5 October 2018
THE APPLICATIONS

The Applicant seeks the review of two decisions made by delegates of the Respondent. The two decisions were dealt with together. They are:
1. Application 2017/0753
Decision dated 2 February 2017 (R1, T140) which affirmed a determination dated 5 January 2017 “…that Cleanaway Operations Pty Ltd is not presently liable to pay compensation benefits under section 16 (medical treatment) and section 19 (Incapacity payments) of the SRC Act” (R1, T137 at 282).
2. Application 2017/6454
Decision dated 19 October 2017 (R2, T16) which affirmed a determination dated 30 August 2017 that stated:
…that Cleanaway Operations Pty Ltd is:
(a)liable to pay compensation, pursuant to section 14 of the SRC Act, for temporary aggravation of pre-existing osteoarthritis to the AC joint, sustained on 7 July 2016; and
(b)not presently liable to pay compensation pursuant to section 16 (medical treatment) or section 19 (incapacity payments) as of 18 October 2016.
(R2, T13 at 54)
Identity of the Respondent
There appears to be some confusion as to the proper identity of the Respondent. The Tribunal files for both applications at all times identified the Respondent as “Cleanaway Operations Pty Ltd” and all correspondence, orders and directions issued by the Tribunal have identified that company as the Respondent. As far as the Tribunal is aware, all of the documents lodged by the Applicant have also identified the Respondent as Cleanaway Operations Pty Ltd. The documents lodged by the Respondent, however, have variously described the Respondent as “Cleanaway Operations” (see Respondent’s submissions opposing application for stay order dated 10 March 2017), “Cleanaway Operations Limited” (R1 and R2, T-documents), “Cleanaway Operations Pty Ltd” (various documents), “Cleanaway Waste Management Limited” (Respondent’s list of authorities received 3 April 2017) and “Cleanaway Waste Management Group Ltd” (Outline by Respondent received 24 August 2018). Further, both the Section 37 Statements filed by the Respondent, (R1, T2 at 8 and R2, T2 at 3) identify in their heading the Respondent as “Cleanaway Operations Limited” but both, in the body of the statements, define the Respondent as “Cleanaway Waste Management Limited”.
The reviewable decisions in both applications (R1, T140 at 298 and R2, T16 at 64) purported to be decisions issued “For and on behalf of Cleanaway Operations Pty Ltd” as were the decisions that were being reviewed in each of those reviewable decisions (R1, T137 at 287 and R2, T13 at 54). Accordingly, Cleanaway Operations Pty Ltd is the correct and appropriate Respondent. References in this decision to the Respondent are references to that company.
BACKGROUND
The Applicant was born in February 1968.
On 30 March 2015 the Applicant was working as a truck driver for the Respondent when his truck was hit by an out of control vehicle. There was extensive damage to the truck that the Applicant was driving and the Applicant sustained a left shoulder injury.
On 21 April 2015 the Applicant made a claim for workers’ compensation (R1, T3) for compensation in respect of “left sholder (sic). SA Bursitis cuff” (R1, T3 at 13).
By determination dated 8 May 2015, CGU on behalf of the Respondent accepted liability “…to pay compensation…in accordance with Section 14 of the SRC Act in respect of temporary aggravation of left shoulder bursitis and rotator cuff strain, left distal lower leg soft tissue strain sustained on 30/03/2015” (R1, T14 at 54).
The Applicant received treatment for the accepted injury including an ultrasound guided steroid injection on 13 May 2015 (R1, T17) and in September 2015 surgery by Dr Jarrett being:
Shoulder arthroscopy through posterior portal. Subacromial bursectomy. Subacromial decompression using radiofrequency probe and 5.5 mm burr. Cuff repair undertaken via lateral and anterior incisions. Cuff repaired using 1 x Conmed Y knot medial row anchors and 2 x Conmed 3.5 mm Poplok lateral row anchors to create double row knotless repair…
(Report of Dr Jarrett R1, T42)
The left shoulder improved steadily following surgery, however, there was a side-effect being forearm symptoms and loss of use of the left thumb.
As at March 2016, although his shoulder had not recovered fully and he was still suffering numbness in his thumb, the Applicant had returned to work and was able to perform “the majority of his tasks at work with relative ease” (Report of Dr Jarrett dated 16 March 2016, R1, T83).
The Respondent accepted liability for the cost of the tendon transfer surgery to address the Applicant’s thumb issue which was scheduled for 14 July 2016.
Sometime between 6 and 8 July 2016 the Applicant was driving an oil collection tanker for the Respondent. He says that in throwing a collection hose onto or over a bracket on the truck he felt his left shoulder crack and immediately felt pain. He reported the incident to the Respondent (R1, T94). The day on which the incident occurred is not clear as various documents identify different dates for this incident. For instance, the Applicant’s witness statement says that it occurred on 8 July 2016 (A1 page 7) as does the workers’ compensation claim form lodged by the Applicant in July 2017 (R2, T3 at 7), although that does erroneously (I assume) identify the date of the incident as 8 July 2017, yet the Applicant’s Statement of Issues, Facts and Contentions (Applicant’s SIFC) (at para 9) and the Applicant’s Personal Statement (R2, T11) say that the incident occurred on 7 July 2016. The date of 6 July 2016 for the incident is indicated by the email sent by the Respondent’s Rehabilitation and Injury Management Advisor, Ms Taylor, on Friday 8 July 2016 (R1, T94) wherein she advised that the Applicant had advised her that the incident occurred on the previous Wednesday, that is 6 July 2016. Whichever of those dates is the correct one, I do not understand the Respondent to be disputing that some incident did occur on one of those days when the Applicant was collecting oil. Nothing hinges on which of those dates the incident actually occurred.
The Applicant underwent the scheduled surgery on his thumb on 14 July 2016. The Respondent paid for that surgery.
On 17 October 2016 Dr Brooks issued a progress certificate of capacity noting, in respect of the left thumb, “Excellent progress NO restrictions from the perspective of left thumb” (R1, T122 at 245).
From September to December 2016 the Applicant continued to be reviewed by various medical practitioners. Details of the medical reports are set out later in this decision. During the period following the surgery to his thumb the Applicant returned to work for the Respondent but was limited to light duties only.
On 5 January 2017 the Respondent issued its determination (R1, T137) that the Respondent was “…not presently liable to pay compensation in respect of temporary aggravation of left shoulder bursitis and rotator cuff strain, left distal lower leg soft tissue strain in accordance with Section (sic) 16 and 19 of the SRC Act”. It is the decision affirming that determination, after a request for a reconsideration by the Applicant’s lawyers (R1, T138), issued by the Respondent on 2 February 2017 (R1, T140) that is the subject of application 2017/0753.
Also on 5 January 2017, when the Applicant was on leave, he received advice from Ben, the Respondent’s Health and Safety Manager, that he was not to return to work until he was certified 100% fit for work (Applicant’s statement A1 page 9). Since that time the Applicant has been on unpaid leave. He is still employed by the Respondent on that basis. He receives no payments from the Respondent.
The Applicant has since January 2017 been employed periodically by third parties as a truck driver and a plant (loader) operator.
Both prior to and after 5 January 2017 the Applicant regularly provided WorkCover WA progress certificates of capacity issued by Dr Khoo (R1, T135 for the period 15/12/2016 to 15/01/2017) and by Dr Tang (R2, T6, T8, T9, T12 and T17 for the period from 16/01/2017 up to 25/01/ 2018). All of them note “some capacity for work”. All of them note the reason for the Applicant’s partial incapacity as being, in some cases amongst other things, the left shoulder injury.
On 26 July 2017 the Applicant submitted a Comcare Workers’ Compensation Claim Form (R2, T3) in respect of the incident that occurred on or about 7 or 8 July 2016.
On 30 August 2017 the Respondent issued its determination (R2, T13) of the claim made by the Applicant in respect of the incident in July 2016 to the effect that the Respondent is:
(a) liable to pay compensation, pursuant to section 14 of the SRC Act, for a temporary aggravation of pre-existing osteoarthritis to the AC joint, sustained on 7 July 2016; and
(b) not presently liable to pay compensation pursuant to section 16 (medical treatment) or section 19 (incapacity payments) as of 18 October 2016.
(R2, T13 at 51)
The Applicant’s lawyers sought a reconsideration of that determination (R2, T15) which resulted in the decision of 19 October 2017 (R2, T16) affirming the determination. It is that decision of 19 October 2017 which is the subject of application 2017/6454.
On 27 July 2018 the Applicant underwent the surgery on his left shoulder which had first been identified by Dr Khoo in a report dated 9 November 2016 (R1, T129). Dr Khoo performed that surgery.
THE HEARING
The applications were heard on 22, 23 and 24 August 2018. The Applicant was represented by counsel, Mr Bruns, instructed by Hoffmans Lawyers, and the Respondent was represented by counsel, Mr Richards, instructed by HBA Legal.
Evidence was given by the Applicant, Dr Kiat Tang (General Practitioner), Mr Homan Zandi (Orthopaedic Surgeon), Mr Charles Muir, Dr Paul Pei Chuan Khoo (Orthopaedic Surgeon) and Mr Frederick Jurgen Phillips (Consultant Orthopaedic Surgeon).
The following documents were admitted into evidence at the hearing:
(a)the Applicant’s witness statement dated 9 February 2018 (Exhibit A1);
(b)a bundle of the Applicant’s payslips for the payment periods:
(i)26 December 2016 – 1 January 2017;
(ii)19 December 2016 – 25 December 2016;
(iii)12 December 2016 – 18 December 2016;
(iv)5 December 2016 – 11 December 2016;
(v)28 November 2016 – 4 December 2016 (Exhibit A2);
(c)a photograph of the rear of a truck with the hose held across the spool (Exhibit A3);
(d)medical report of Mr Homan Zandi dated 20 June 2018 (Exhibit A4);
(e)medical report of Mr Homan Zandi dated 9 February 2017 (Exhibit A5);
(f)amended report of Mr Homan Zandi dated 20 June 2018 (with deletions) (Exhibit A6);
(g)medical report of Dr Paul Khoo dated 19 July 2018 (Exhibit A7);
(h)operation report for the Applicant’s procedures on 27 July 2018 (Exhibit A8);
(i)document titled “Payslips” received by the Tribunal on 24 August 2018 (Exhibit A9);
(j)T-documents for application 2017/0753 (T1 – T140, pp 1 – 299) (Exhibit R1);
(k)T-documents for application 2017/6454 (T1 – T17, pp 1 – 66) (Exhibit R2);
(l)document titled “Updated Schedule of Hours Worked” received by the Tribunal on 24 August 2018 (Exhibit R3);
(m)photograph showing Mr Anthony Muir at the rear of a truck holding a hose in his raised right hand (Exhibit R4);
(n)Direct Life Medical Statement completed by Dr Kiat Tang dated 28 February 2017 (Exhibit R5);
(o)the witness statement of Mr Anthony Muir dated 5 April 2018 (Exhibit R6);
(p)medical report of Mr Fredrick Phillips dated 10 April 2018 (Exhibit R7); and
(q)a document titled “Schedule of Hours Worked” (MFI).
THE LEGISLATIVE FRAMEWORK
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) sets out the Respondent’s general liability to pay compensation and provides that:
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Section 16(1) of the SRC Act provides:
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.
Section 19 of the SRC Act provides that the Respondent is liable to pay compensation to an employee who is incapacitated for work as a result of an injury. That section sets out the formula for calculating the amount of compensation to which a relevant employee is entitled. Section 19 of the SRC Act, in part, provides that:
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
…
Section 54(1) of the SRC Act provides:
Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.
Section 64 of the SRC Act provides:
(1) Application to the Administrative Appeals Tribunal for review of a reviewable decision may be made by:
(a) the claimant; or
(b) if the decision affects the Commonwealth—the Commonwealth; or
(c) if the decision affects a Commonwealth authority—the Commonwealth authority; or
(d) if the decision affects a corporation that holds a licence under Part VIII—the licensed corporation.
(2) Despite section 27 of the Administrative Appeals Tribunal Act 1975, a person may not make an application to the Administrative Appeals Tribunal for a review of a reviewable decision except as provided by subsection (1) of this section.
Section 60(1) of the SRC Act defines “reviewable decision” as “a decision made under subsection 38(4) or section 62”.
Section 62 of the SRC Act provides:
(1) A determining authority may, on its own motion:
(a) reconsider a determination made by it; or
(b) cause such a determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than the person who made, or was involved in the making of, the determination;
whether or not a proceeding has been instituted or completed under this Part in respect of a reviewable decision made in relation to that determination.
(2) A request to a determining authority to reconsider a determination made by it may be made by:
(a) the claimant; or
(b) if the determination affects the Commonwealth—the Commonwealth; or
(c) if the determination affects a Commonwealth authority—that Commonwealth authority.
(2A) If a determining authority holds a licence under Part VIII that is subject to conditions requiring the determining authority to arrange for the reconsideration by another person of any determination made by the determining authority, nothing in subsection (1) or (2) is to be taken to derogate from that requirement.
(3) A request for reconsideration of a determination shall:
(a) set out the reasons for the request; and
(b) be given to the determining authority within 30 days after the day on which the determination first came to the notice of the person making the request, or within such further period (if any) as the determining authority, either before or after the expiration of that period, allows.
(4) On receipt of a request, the determining authority shall reconsider the determination or cause the determination to be reconsidered by a person to whom its power under this section is delegated, being a person other than a person who made, or was involved in the making of, the determination.
(5) Where a person reconsiders a determination, the person may make a decision affirming or revoking the determination or varying the determination in such manner as the person thinks fit.
(6) The determining authority or person must decide a request made by a claimant to reconsider a determination within the period prescribed by the regulations.
JURISDICTION
A number of jurisdiction issues were raised by the Respondent prior to the hearing. Submissions on the jurisdiction issues were filed by each of the parties.
Incorrect identification of reviewable decision in Application 2017/6454
In addition to the issues addressed in the jurisdiction submissions, the Respondent at paragraph (1)(c) of its Outline handed up by counsel in closing on 24 August 2018, the Respondent noted that the application lodged by the Applicant in 2017/6454, in the box “Date the decision was made” on the second page of the application form (R2, T1 at 2), identified the date of the decision as being “30/08/2017”. As the Respondent points out, that is not the date of the reviewable decision, but rather the date of the determination which was reconsidered in the reviewable decision of 19 October 2017 (see [3] above).
It is apparent, however, that the Respondent understood and proceeded in this application on the basis that the “reviewable decision” was that of 19 October 2017 which affirmed the determination of 30 August 2017. The Respondent’s Section 37 Statement (R2, T2) (the statement required to be filed by the decision-maker within 28 days after receiving notice of the application for review under s 37(1) of the Administrative Appeals Tribunal Act 1975 (the AAT Act)) identified the “Reviewable Decision” as follows:
On 19 September (sic) 2017, EML issued a reviewable decision on behalf of the respondent which affirmed the determination of 30 August 2017 (R2, T2 at 3).

I find that the reference to 19 September 2017 in the Respondent’s Section 37 Statement was meant to be 19 October 2017.
In any event, it is clear the wrong date being nominated in the application form filed with the Tribunal had no effect on the way that the Respondent presented its case. The application proceeded on the basis that the reviewable decision, the substance and effect of which were to affirm the 30 August 2017 determination that there was no present liability under ss 16 and 19 of the SRC Act, was the decision of 19 October 2017. Section 2A of the AAT Act requires the Tribunal to provide a mechanism for the review of decisions which is, amongst other things, accessible, economical, informal, quick and which promotes trust and confidence in the decision-making of the Tribunal. Those objectives would not be served by the Tribunal taking a pedantic technical point of a wrong date being nominated in the application form when the Respondent clearly understood the relevant decision to be the decision of 19 October 2017 affirming the determination of 30 August 2017 and the whole application having proceeded on that basis.
I also note the judgment of the Full Court of the Federal Court in Taylor v Secretary to the Department of Social Security (1988) 18 FCR 322, a case in which the Court (Lockhart J, Beaumont J, Wilcox J) found no issue, jurisdictional or otherwise, with the Tribunal having reviewed a decision in circumstances where it was difficult to even discern the making of a relevant decision, let alone the date of the decision. The Court observed (at 329):
Taking a sensible and practical view, it is my view that the fair reading of what occurred is that on 4 November 1986 the delegate of the Secretary decided not to waive recovery of the overpayment pursuant to the powers in that behalf conferred by s 186, thus bringing into play by its own force the statutory requirement of s 181 (2) that the overpayment be recouped; and the delegate then went on to decide that the amount of that recoupment should be as had hitherto been decided within the Department.
It has been no easy task to identify the decision-making process in this case and, in particular, to determine whether there was an administrative decision susceptible of review by the Administrative Appeals Tribunal. Even on the view that I have taken, there remains difficulty in determining precisely the terms of the decision under review.
The Court went on to comment (at 329):
The problem of identifying decisions under challenge arises not infrequently in cases which come before this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Administrative Appeals Tribunal Act. This case illustrates the importance of parties to proceedings before the Administrative Appeals Tribunal and this Court ensuring that decisions under challenge are clearly identified. The Administrative Appeals Tribunal Act, ss 28 and 37 and the Administrative Decisions (Judicial Review) Act, s l3, provide machinery for identifying the decisions challenged, the identity of the decision-makers and the reasons for the decisions.
In the decision in the matter of Johanson and the Civil Aviation Safety Authority [2012] AATA 239, at [28] Deputy President Jarvis observed:
In any event, it is clear that Mr Hood made one or other of the decisions to which the parties have referred. In either case, I consider that he made a reviewable decision, and it is not essential to the outcome of the review by this tribunal to determine which of the potential decisions constituted the reviewable decision.
In the present case, as noted at [38] above, the Respondent’s Section 37 Statement lodged at the commencement of the application, although itself containing an error, evidenced that the Respondent at all times understood that the decision being reviewed in this application was the decision of 19 October 2017.
It is not clear from the Respondent’s Outline filed on 24 August 2018, which is the only document filed by the Respondent which raised this point, what the Respondent says the consequence is of the wrong date being nominated in the application form lodged by the Applicant. Insofar as the Respondent seeks to argue that the Tribunal does not have jurisdiction because the 30 August 2017 determination is identified in the application form instead of the 19 October 2017 decision, then I reject that argument for the reasons set out above.
No relevant claim for compensation made
In the case of Lock and Comcare [2018] AATA 2386 (Lock and Comcare) the Tribunal held that, in respect of one of the applications, the Tribunal did not have jurisdiction. Under s 64 of the SRC Act, on the basis that the Tribunal’s jurisdiction is limited to reviewing “reviewable decisions” which s 60 of the SRC Act, relevantly, defines as decisions under s 62 of the SRC Act. The Tribunal in Lock and Comcare held that there was no relevant decision under s 62 of the SRC Act because:
(a)no prior relevant determination of liability had been made by the respondent in relation to which the decision sought to be reviewed could be a reconsideration of a determination on its own motion by the respondent under s 62(1) of the SRC Act; and
(b)no relevant claim for compensation, in that case under ss 16 or 19 of the SRC Act, had been made by the applicant in relation to which the decision sought to be reviewed could be a decision under ss 62(2)-62(5) of the SRC Act.
The Respondent raises arguments that the Tribunal does not have jurisdiction to review either of the decisions the subject of the applications based, in part, on the decision in Lock and Comcare and on the judgment of the Full Court (Wilcox, Branson and Tamberlin JJ) in Lees v Comcare (1999) FCA 753 (Lees v Comcare).
Application 2017/0753
The Applicant’s jurisdiction submissions were to the effect that the application was distinguishable from the application in Lock and Comcare because, unlike in Lock and Comcare, there was a claim made by the Applicant for compensation for surgery proposed by Dr Khoo in his report dated 9 November 2016 (R1, T129) which prompted the Respondent to obtain a responsive report from Mr Phillips (R1, T133) who disagreed with Dr Khoo’s report. It was on the basis of Mr Phillips’ responsive report of 29 November 2016 that the Respondent made the determination of 5 January 2017 (R1, T137) affirmed by the reviewable decision dated 2 February 2017 (R1, T140).
The Respondent argues that on 5 January 2017 the Respondent determined that there was no present liability under s 16 and s 19 of the SRC Act with respect to the Applicant’s accepted injury of “temporary aggravation of left shoulder bursitis and rotator cuff strain, left distal lower leg soft tissue” (R1, T137) and that, although there is reference in that determination to the surgery proposed by Dr Khoo, “the decision and reasoning behind the decision relates solely to the no present liability decision” (para 4 of the Respondent’s Jurisdiction Submissions). The Respondent submits at paragraph 5 of its Jurisdiction Submissions that the 2 February 2017 reconsideration (R1, T140) does not refer to the claim for compensation for surgery and relates only to “the no present liability decision”.
Paragraphs 8 and 9 of the Respondent’s Jurisdiction Submissions set out the Respondent’s argument in relation to jurisdiction, presumably in both applications, as follows:
The Respondent's Submissions on Jurisdiction
8. At paragraph 10 of his submissions, the Applicant notes that surgery was cited in the Determination dated 5 January 2017. The Respondent submits that this was merely part of the history considered by Cleanaway when making a Determination that the Applicant had no present entitlement to compensation. And in event, the powers and discretions of the Tribunal are limited to the second-tier decision making stage, the Reviewable decision stage, “albeit that such powers and discretions might have been available at the first-tier decision making process” (Lees v Comcare at para 39).
9. At paragraph 7 of his submissions, the Applicant states that Dr Khoo requested funding for the proposed surgery. The Respondent notes that this was not a claim for compensation by the Applicant himself, and in any event, the powers and discretions of the AAT under s 43(1) of the AAT Act are not related to the claim for compensation made by a worker, and are limited to the powers and discretions which would have been available to the Determining Authority at the second-tier decision making stage (Lees v Comcare at para 39).
(Original emphasis)
The Respondent’s Outline of submissions in closing, handed up at the hearing on 24 August 2018, summarised the argument as follows:
3.    The Determination dated 5 January 2017 (P282) is a Determination that there is no present liability in respect of the 2015 injury. Although there is reference to surgery in the history provided in the reasons, the Determination does not consider or discuss whether there is liability under s 16 for the surgery. The Determination merely references the surgery. This is made clear by paragraph 27 which finds no present liability for all medical treatment and for all incapacity payments.
4.    The request for reconsideration dated 10 January 2017 (P289) is telling. This is not a request for reconsideration in relation to the surgery. This is a request arguing that the Applicant's shoulder symptoms are causally related to the 2015 injury, and not related to degeneration.
5.    The Reconsideration dated 2 February 2017 (P295) does not refer to any medical treatment, or incapacity entitlements, and restates the argument in the Applicant’s request for reconsideration that the Applicant’s symptoms are continuing. The Reconsideration affirms the Determination that there is no present liability.
6. Section 64 authorises the third-tier review by the Tribunal and authorises review of only Reviewable Decisions (para 38, 39 of Lees v Comcare). As the Reviewable Decision, which has followed the request by the Applicant that symptoms are continuing, only affirms the Determination that the symptoms are not continuing, and does not discuss at all any specific entitlement under s 16 or s 19, there can be no jurisdiction.
7.    In accordance with Lock and Comcare [2018] AATA 2386 and Lees v Comcare, the Respondent submits that there can be no jurisdiction in matter 2017/0753.
(Original emphasis)
Dealing firstly with the argument raised by the Respondent that the request for surgery was made by Dr Khoo and was “not a claim for compensation by the Applicant himself”, the relevant requirement of s 54(1) of the SRC Act for a claim for compensation is that “a claim for compensation is made by or on behalf of the person”. It does not appear to be disputed, nor could it seriously be disputed, that a claim for compensation for the surgery proposed by Dr Khoo was made to the Respondent. The only issue that the Respondent seems to raise is that the claim was made by Dr Khoo, not the Applicant himself. It is immaterial whether the claim for compensation was made by Dr Khoo, the Applicant’s lawyers acting for the Applicant or the Applicant himself. Irrespective of who made the claim, it was made on behalf of the Applicant. Accordingly, insofar as the Respondent seeks to argue that no claim for compensation could be considered to have been made because the Applicant did not make the claim himself, then I reject that argument.
As I understand the balance of the Respondent’s argument set out in the submissions referred to in [50] and [51] above, the Respondent argues that there was no decision by the Respondent in the initial determination of 5 January 2017 (R1, T137) in relation to the claim for compensation for the surgery proposed by Dr Khoo, but rather that surgery was referred to only as part of the history considered by the Respondent in reaching the determination that the Respondent was “…not presently liable to pay compensation benefits under section 16 (medical treatment) and section 19 (incapacity payments) of the SRC Act” (R1, T137 at 282). The Respondent argues that the jurisdiction of the Tribunal is only to review the reviewable decision, that is the decision of 2 February 2017, and that decision, affirming the determination, was that generally there was no present liability under ss 16 and 19 of the SRC Act. The Respondent’s argument is based therefore on the identified statements in Lees v Comcare that the Tribunal’s jurisdiction is limited to reviewing the reviewable decision, in this case the 2 February 2017 decision which does not relate to the claim under s 16 of the SRC Act for compensation (assuming that there is one) for the surgery proposed by Dr Khoo or any identified claim for compensation under s 19 of the SRC Act, but rather to a determination that, generally, the Respondent was not then liable to pay compensation.
The argument seems to be that even if there was a claim for compensation for surgery under s 16 of the SRC Act, there was a break in the nexus between that claim and the reviewable decision. The reviewable decision does not relate to any claim or claims made. I assume that the reliance on the decision in Lock and Comcare in this argument then is that, as there is no relevant claims under ss 16 or 19 of the SRC Act to which the reviewable decision relates, then, as was the case in Lock and Comcare, absent a relevant claim for compensation, there is not a decision under s 62 of the SRC Act to which s 64 of the SRC Act would apply giving the Tribunal jurisdiction.
If that is the Respondent’s argument, then I do not agree with it. The Respondent’s argument, amongst other things, conflates the decision on the reconsideration and the reasons for the decision and points to a lack of a specific reference to a claim for surgery in what the Respondent identifies as the reviewable decision. Section 62(5) of the SRC Act prescribes what the person undertaking that reconsideration under s 62(4) of the SRC Act can do. That person can only do one of three things: affirm the determination being reconsidered; revoke the determination being considered; or vary “the determination in such manner as the person thinks fit”. In the present case the person undertaking the reconsideration under s 62(4) of the SRC Act affirmed the original determination. In that sense everything that the reconsideration delegate did in the 2 February 2017 reviewable decision reconsideration (R1, T140 at 296) and in his “Reasons for Reviewable Decision” (R1, T140 at 297 and 298), other than simply affirming the determination of 5 January 2017, is outside the scope of the decision to be made under s 62(5) of the SRC Act. Under that section the reviewable decision is nothing more than the affirming of the 5 January 2017 determination.
On that basis, the fact that the “Reasons for Reviewable Decision”, and what is described as the reviewable decision itself, did not specifically refer to any surgery is of no legal consequence. They are not the reviewable decision. The reviewable decision is, in effect by operation of s 62(5) of the SRC Act, “I affirm the determination dated 5 January 2017” (R1, T140 at 296).
The interpretation argued for by the Respondent would then render an unworkable result. As s 62(5) of the SRC Act limits the scope of the decision following a reconsideration under s 62(4), relevantly in this case to simply affirming the original determination, in order for the Tribunal to review the reviewable decision under s 62(5) that affirms the original determination, the Tribunal must be able to consider the original determination which is being affirmed. The exercise undertaken pursuant to s 62(4) which gives rise to the reviewable decision under s 62(5) of the SRC Act is a “reconsideration” of the determination. To limit a review of a decision under s 62(5) of the SRC Act to nothing more than looking at the affirmation of the determination without being able to reconsider the merits of the determination, which is the exercise prescribed by s 62(4) of the SRC Act, would render the review rights under s 64 of the SRC Act pointless. That was clearly not the intent, nor, in my view, the effect of the procedure set out in ss 62(2)-(5) of the SRC Act.
Looking then at the determination, standing in the shoes of the person undertaking the reconsideration under s 62(4) of the SRC Act with the power to vary the determination as that person thinks fit, I do not accept the Respondent’s argument that the determination was not a determination of the claim for compensation for treatment made by the Applicant. The determination, although it was in the end expressed in broad terms, did not arise out of the ether. It had a background and a context and, as a matter of fact, disposed of the claim for treatment that had been made.
To understand the context of the determination one needs to look at the events that led up to the making of the determination. The relevant starting point is Dr Khoo’s report of 22 September 2016 (R1, T114) which was provided to the Respondent and which identified that the Applicant “may require surgery” (R1, T114 at 230). That report prompted the Respondent to require the Applicant to attend and be examined by Mr Phillips (R1, T117). Mr Phillips then provided a report dated 2 November 2016 (R1, T126).
On 9 November 2016 Dr Khoo provided a further report (R1, T129) which, under the heading “Plan”, proposed surgery, specifically:
For left shoulder arthroscopy +/- redo acromioplasty + distal clavicle osteectomy +/- redo supraspinatus repair + long head of biceps tenodesis +/- upper subscapularis repair.
That report of Dr Khoo was provided to Sally Taylor, described as the Rehabilitation and Injury Management Adviser of the Respondent (R1, T116), on 9 November 2016 who, by email that day (R1, T130), passed it on to the Respondent’s insurer (CGU) advising, amongst other things, that:
Stephen says he has significant shoulder pain which affects him at home and at work. He is keen to proceed with surgery asap ‘just want to get it fixed as soon as possible’ so he says he can get on with his life.
Dr Khoo has booked him for surgery 30/11/16 & I left Stephen at the review completing his admission paperwork.
CGU by letter dated 21 November 2016 (R1, T132) wrote to Mr Phillips thanking him for his previous report and, amongst other things, made the following request:
Mr Weston was recently examined by his treating surgeon Dr Paul Khoo and I am enclosing a copy of his report with findings dated 09/11/2016, along with a copy of his surgery request.
1. Noting that Dr Khoo has found no impingement in the shoulder on examination and refers to the AC joint as painful swollen and tender to palpate, based on your report findings and reference to the degeneration in his joint, is the procedure as requested reasonable or necessary and related to his work condition – or addressing the degeneration found within his joint?
Clearly CGU considered that the Applicant was making a claim for compensation for the surgery proposed by Dr Khoo.
Mr Phillips provided a report on 29 November 2016 (R1, T133) which, amongst other things, responded to the above question posed by CGU as follows (R1, T133 at 276):
You ask “is the procedure requested reasonable or necessary and related to his work condition – or addressing the degeneration found within his joint”.
On the basis that I considered the joint to be quiescent on my examination and Dr Khoo has now found it to be symptomatic, it would appear that the surgery is addressing the degeneration found within the joint rather than any specific aggravation.
Of note it was not deemed necessary at the original surgery to address the acromioclavicular joint.
Following the report of 29 November 2016 from Mr Phillips CGU wrote to the Applicant (R1, T134) in the following terms:
I refer to your claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of your “temporary aggravation of left shoulder bursitis and rotator cuff strain, left distal lower leg soft tissue strain” sustained on 30/03/2015.
Your claim recently underwent a review and you were referred to Dr Fred Phillips on 21/10/2016. In his reports dated 02/11/2016 and 29/11/2016 he states that on his examination “the acromioclavicular joint was not tender to direct pressure and he confirmed that there was no longer any cracking in the joint”….Dr Phillips notes the report of Dr Paul Khoo dated 09/11/2016…and summarises that the surgery as proposed by Dr Khoo “is addressing the degeneration found within the joint rather than any specific aggravation.”
…
In view of Phillip’s (sic) and Dr Khoo’s opinions, it would appear that under the provisions of the SRC Act you have no current entitlement to worker’s compensation benefits pursuant to Section 16 (sic) (in respect of medical treatment) and/or 19 (in respect of incapacity payments).
The purpose of my letter is to provide you an opportunity to supply further evidence in support of your claim (e.g. a medical report commenting on Dr Phillip’s (sic) opinion).

That letter from CGU resulted in the Applicant’s lawyers, Hoffmans Lawyers, writing to CGU on 15 December 2016 (R1, T136) advising that the Applicant would provide further medical evidence and that the Applicant did “not agree to any cessation of weekly payments of workers (sic) compensation and the non-payment of medical treatment” (R1, T136 at 281).
On 5 January 2017 CGU issued the determination (R1, T137). The letter of that date setting out the determination relevantly stated:
I refer to your claim for compensation under the Safety Rehabilitation and Compensation Act 1988 (the SRC Act) in respect of your “temporary aggravation of left shoulder bursitis and rotator cuff strain, left distal lower leg soft tissue strain” sustained on 30/03/2015.
Your claim has been considered in accordance with the provisions of the SRC Act taking into account all available evidence. I have determined that Cleanaway Operations Pty Ltd is not presently liable to pay compensation benefits under section 16 (medical treatment) and section 19 (Incapacity payments) of the SRC Act.
(Original emphasis)
The “Reasons for Decision” accompanying the determination (R1, T137 at 284-288) did, as the Respondent concedes, set out in some detail the reports from Dr Khoo by which the claims for compensation for the surgery were made and the reports which responded to those reports. To dismiss the reference to these reports by Dr Khoo by which the claims for compensation for surgery were made as “merely part of the history considered by Cleanaway” mischaracterises their content and effect. They were, in the context of what had gone before and the reasons, clearly claims for compensation being dealt with by the determination.
Further, the Respondent’s argument, based on a narrow and, with respect, semantic, reading of what it considers to be the determination, also ignores the legal effect of the determination. As a matter of fact the determination, expressed in the broad terms of there being no present liability under ss 16 and 19 of the SRC Act, dealt with the Applicant’s claim for compensation for the surgery proposed by Dr Khoo. The wide statement of there being no liability at all under the two sections of the SRC Act obviously also answered, in the negative, the specific claim made for the surgery. In that regard I note the comments of His Honour Hill J in Woodbridge v Comcare [1994] FCA 1249 (Woodbridge v Comcare) at [60]:
…The question is whether s.64, when read together with the definition of reviewable decision, requires the word “decision” in the definition of “reviewable decision” to have the broad meaning which the Full Court has given to it in other cases or the narrow meaning of a decision on redetermination made by a person to whom the power is delegated under s.62(1)(b). Although the matter is arguable, I think that the Full Court decision to which I have referred would require me, if it were necessary to decide the matter, to hold that the power to review conferred upon the Tribunal is a power to review a decision in fact made, whether or not made with power.
The case to which His Honour was referring was Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213. While in Woodbridge v Comcare the Court was considering whether a decision made without due authority was a reviewable decision, the general principle that the jurisdiction of the tribunal is to review “the decision in fact made” is applicable to the present case. Irrespective of the language used, the effect of the decision made, the decision “in fact made” to use Hill J’s language, was that the Applicant’s claim for compensation for surgery was rejected.
I am also conscious of the comments of the Full Court of the Federal Court in Taylor v Secretary to the Department of Social Security cited at [42] above.
In the case of Taylor v Secretary to the Department of Social Security the problem that the Court was referring to was that, while the delegate’s decision as reflected in the document issued by the department, appeared to be a decision to withhold $20 per fortnight, as a matter of fact the department was withholding $10 per fortnight. The tribunal, correctly according to the Full Court, treated the issue for review as being the (apparent) decision to withhold payment at the rate of the actual withholding, not the nominated $20 rate identified in the delegate’s decision. The Court commented that (at 329):
…it would in my view be inconsistent with fairness and good administrative practice for the Department to resile from this attitude in its future dealings with the applicant, whatever the terms of the delegate's decision of 4 November 1986.
In other words, the relevant decision for review by the tribunal in that case was the inferred or assumed decision which was actually implemented by the department. In the present case, irrespective of the broader terminology used in the determination, affirmed on reconsideration, the effect of the determination was that the Applicant’s claim for compensation for surgery under s 16 of the SRC Act was rejected. It is that decision which is to be reviewed by the Tribunal.
Was the determination of 5 January 2017 a reconsideration on own motion?
An alternative characterisation of the determination of 5 January 2017 is that it was a reconsideration on own motion under s 62(1) of the SRC Act. Hill J noted in Woodbridge v Comcare at [57] that:
…By force of s.64 of the Act, jurisdiction is conferred upon the Tribunal to review a “reviewable decision”. The expression “reviewable decision” is defined in s.60(1) as a decision made either under sub-sec.38(4) or s.62. Section 38 is concerned with rehabilitation programmes and appears to have no application in the present case. It is s.62 which is presently operative. Under that section Comcare may, of its own motion, reconsider a determination, in which event, it is the reconsideration which is the “reviewable decision” or, if requested so to do, inter alia by the employee, Comcare is required to reconsider the determination in which event it is that decision which is reviewable by the Tribunal.
If, as the Respondent argues, the determination of 5 January 2017 did not relate to the claim for surgery proposed by Dr Khoo, noting that I have found that it did, then the determination can be treated as a reconsideration on own motion under s 62(1) of the SRC Act. The determination of which the 5 January 2017 determination would be a reconsideration would be the determination of the Respondent dated 8 May 2015 (R1, T14) (see [9] above). The determination of 5 January 2017 “reconsiders”, and in effect reverses, the Respondent’s original determination of the Applicant’s claim for compensation of 21 April 2015 (R1, T3). At paragraph 7 of the determination of 8 May 2015 (R1, T14 at 55) the Respondent determined that the Respondent was “liable to pay compensation in respect of this claim under Section 14 of the SRC Act and that Mr Weston is entitled to compensation under Sections 16 and 19 of the SRC Act”. The “reconsideration” of that determination on 5 January 2017 replaced the original determination. The general language of the determination of 5 January 2017, namely that there was “no present liability to pay compensation …in accordance with Section (sic) 16 and 19 of the SRC Act” is reflective of the determination which it is reversing, namely that of 8 May 2015 which determined that the Respondent was “liable to pay compensation…under Sections 16 and 19 of the SRC Act”. Up to the time that the reconsideration occurred on 5 January 2017 the original determination of 8 May 2015 applied and the Respondent accepted liability under s 14 for payment of compensation under s 16 and s 19 of the SRC Act. That changed as a result of the reconsideration on 5 January 2017.
Accordingly, even if one were to accept the Respondent’s argument that the determination of 5 January 2017 and the reconsideration of that determination on 2 February 2017 did not relate to an identifiable claim made by the Applicant for the purposes of s 62(2) to 62(5) of the SRC Act, the determination of 5 January 2017 is itself a decision under s 62(1) of the SRC Act and therefore a reviewable decision.
Accordingly, I do not accept the Respondent’s argument that the Tribunal does not have jurisdiction based on the principles set out in Lees v Comcare and Lock and Comcare. I do not accept that there was not a claim for surgery made by or on behalf of the Applicant, that the determination of 5 January 2017 was not a determination of the Applicant’s claim for surgery or that in reviewing the decision made under s 62(5) of the SRC Act following the reconsideration of the determination under s 62(4) of the SRC Act, the Tribunal, standing in the shoes of the person undertaking that reconsideration of the determination, does not have the power to consider the merit of the claim for compensation and, if it thinks fit, vary the determination. In the alternative the determination of 5 January 2017 was a reconsideration of the determination of 8 May 2015 and is therefore a decision under s 62(1) of the SRC Act and therefore a reviewable decision for the purposes of s 64 of the SRC Act.
Was a relevant claim for compensation under s 19 of the SRC Act made?
One thing that stands out in the Applicant’s case as stated in the Applicant’s SIFC, jurisdiction submissions and Outline of closing submissions is that there is no reference to any relevant claim for compensation under s 19 of the SRC Act. All of those documents identify:
(a)the Applicant’s claim for compensation for the surgery proposed by Dr Khoo and make submissions as to the need for that surgery;
(b)its connection with the work related injury; and
(c)the medical evidence that the Applicant says supports those contentions.
None of those documents, however, identifies any claim for compensation under s 19 of the SRC Act.
The only reference to s 19 of the SRC Act in the Applicant’s documents referred to in [78] is in the section dealing with the decision sought in the Applicant’s SIFC wherein, on page 7, the Applicant seeks orders that:
1. the reviewable decision dated 2 February 2017 be set aside and in lieu thereof there be a determination that the respondent is liable to pay compensation pursuant to s 16 and s 19 as a result of the injury on 30 March 2015.
2. the reviewable decision dated 19 October 2017 be set aside and in lieu thereof there be a determination that the respondent is liable to pay compensation pursuant to s 16 and s 19 as a result of the injury on 7 July 2016.
This issue was explored with counsel for the Applicant, Mr Bruns, at the hearing. Mr Bruns advised that while the Applicant had been on light duties he had been receiving “a makeup component to the pay, which constituted compensation” (Transcript of 22 August 2018 at page 7). As I understand it, it is not disputed by the Respondent that it was paying some compensation to the Applicant under s 19 of the SRC Act up to 5 January 2017.
The way that the parties usually proceed in workers’ compensation matters, is that following a work injury the employee makes a claim, in this case that original claim for workers’ compensation was made on the Respondent’s standard Claim for Workers’ Compensation form in April 2015 (R1, T3). This original claim, as it is described in Lees v Comcare at [30], is, by necessity, of “a generic nature”. Again as is usually the case with claims under the SRC Act, following the making of that “generic” claim, the Respondent by determination dated 8 May 2015 (R1, T14) accepted that it was liable in respect of the injury suffered on 30 March 2015 and that it was liable to pay compensation under s 16 and s 19 of the SRC Act.
That determination of 8 May 2015 had effect up to 5 January 2017. Up to that time the status quo established by the determination of 8 May 2015 applied and the Respondent had paid for the treatment that the Applicant had received and had also made compensation payments under s 19 of the SRC Act for partial incapacity based on the progress medical certificates and certificates of capacity provided by the Applicant throughout that period. As noted above, even after 5 January 2017 when that status quo was displaced, the Applicant continued to provide progress certificates of capacity advising of continuing partial incapacity for work. Relevantly, there was such a certificate current as at 5 January 2017 being the WorkCover WA Progress certificate of capacity issued on 15 December 2016 covering the period from 15 December 2016 to 15 January 2017 (R1, T135).
It appears that the standard practice for payment of workers’ compensation payments was followed in this case (in this regard also see [30] of the judgment in Lees v Comcare). That practice involved the Respondent in May 2015 accepting liability for compensation under ss 16 and 19 of the SRC Act and thereafter reimbursing or agreeing to meet costs of treatment as the need arose, and subject to the Respondent accepting the reasonableness of the treatment. Again, it appears, that in relation to payment of compensation under s 19 of the SRC Act the standard practice of employers and insurers was followed with the Applicant regularly providing progress certificates and certificates of capacity to establish his entitlement to compensation payments. It would be unrealistic and unworkable for a worker to be expected to make a separate claim for payment under s 19 of the SRC Act every week, or fortnight or whatever the pay cycle is. The standard practice, which appears to have been followed in this case, is that, once liability for payment of compensation under ss 16 and 19 of the SRC Act is accepted, as long as the Applicant provided the relevant medical certificates, he received the “makeup pay” under s 19 of the SRC Act.
Insofar as it is considered necessary to identify a claim for compensation under s 19 of the SRC Act, then the claim submitted on the Respondent’s standard Claim for Workers’ Compensation claim form (R1, T3) could be considered to be an ongoing claim for compensation, particularly given that open-ended acceptance of that liability by the Respondent by its determination of 8 May 2015 (R1, T14) and the Respondent’s conduct in making payments thereafter.
Whatever the characterisation of the documentation, both parties proceeded up to 5 January 2017 on the basis that whatever the Applicant was doing was sufficient for him to claim compensation and for the Respondent to continue to make payments under s 19 of the SRC Act. Accordingly, I do not accept the Respondent’s apparent argument that, in applying Lock and Comcare as a precedent, there was no relevant claim for compensation under s 19 of the SRC Act.
For the reasons set out above, in respect of both applications, I find that the Tribunal does have jurisdiction under s 64 of the SRC Act to review the decisions.
THE MEDICAL EVIDENCE
Dr Kiat Tang (General Practitioner) issued a WorkCover WA First certificate of capacity on 31 March 2015 (R1, T6) the day following the motor vehicle accident. That certificate identified the Applicant’s symptoms as “L shoulder pain, L lower leg/ankle pain” and diagnosed “L shoulder SA bursitis/rotator cuff strain, L distal lower leg soft tissue strain” and assessed the Applicant to have some capacity for work “modified or alternative duties” from 31 March to 7 April 2015.
Dr Tang provided further WorkCover WA progress certificates of capacity (R1, T7 and T8) which certified the Applicant fit to perform modified or alternative duties from 13 April to 28 April 2015 and prescribed pain relieving medication (R1, T8 at 42). Dr Tang continued throughout the relevant period to provide progress certificates of capacity.
The Applicant underwent a left shoulder MRI on 24 April 2015. The MRI report (R1, T11) advised that the Applicant was suffering osteoarthritis through his acromioclavicular joint with type II acromion and early anterolateral subacromial spurring and narrowing and moderate subdeltoid bursitis with insertional tendinopathy and supraspinatus tendon.
On 28 April 2015 Dr Tang referred the Applicant to Dr Paul Jarrett (Orthopaedic Surgeon) for further opinion (R1, T12). Dr Tang also issued a further WorkCover WA progress certificate of capacity on 28 April 2015 (R1, T13).
Dr Jarrett provided a report dated 11 May 2015 (R1, T16) in which Dr Jarrett stated that “Clinically his symptoms appear due to the impingement and not from his acromioclavicular joint (original emphasis)” and advised that he had “arranged for a subacromial space steroid injection” which was carried out by Dr Butterfield on 13 May 2015 (R1, T17).
By report dated 27 May 2015 (R1, T24), Dr Jarrett advised that the injection had been administered, however this had only worked for one week and had since worn off. Dr Jarrett recommended that the Applicant undergo arthroscopic subacromial decompression.
By brief dated 15 June 2015 (R1, T29), CGU sought a report from Mr Frederick Phillips (Orthopaedic Surgeon). He provided a report dated 11 August 2015 (R1, T33). Mr Phillips reported that the Applicant had continued to experience moderately high levels of pain with difficulty in elevation, and could not lie on his left arm. On examination, Mr Phillips reported that the Applicant's shoulder was very irritable and the Applicant had restricted range of motion. Mr Phillips was of the view that the Applicant's osteoarthritis was long standing and unrelated to the incident. Mr Phillips considered that the incident had provoked the subacromial bursitis to become symptomatic. Mr Phillips recommended that the Applicant undergo a further injection, and also stated that surgery would be appropriate.
Mr Phillips’ report was provided to Dr Jarrett by CGU (R1, T35) which asked Dr Jarrett to comment on Mr Phillips’ report. Dr Jarrett responded by report dated 24 August 2015 (R1, T38). Dr Jarrett advised that the Applicant continued to have the same problems with a lot of pain in the lateral aspect of his left shoulder which was worse with activities. Dr Jarrett reported that the Applicant's symptoms had been ongoing and were not responding long term to treatment, and while there was a chance of things becoming better over time, he was ambivalent about this happening. Dr Jarrett was of the view that a steroid injection and physiotherapy were unlikely to provide the Applicant with a long-term solution. Dr Jarrett stated that arthroscopic assessment of the shoulder and subacromial decompression were very likely to give him the relief the Applicant needed and that the Applicant was keen to proceed.
Dr Jarrett performed surgery and provided an operation report on 3 September 2015 (R1, T42). Dr Jarrett reported that the Applicant was suffering from subacromial bursitis, lateral supraspinatus full thickness rotator cuff tear and atrophic cuff articular surfaces. Dr Jarrett performed subacromial decompression and the supraspinatus tear repair. Post-operatively the Applicant was provided with analgesics and it was recommended that he hold his arm in sling for six weeks and begin physiotherapy.
In progress notes dated 3 September 2015 from St John of God Hospital, it was noted that post-operatively the Applicant had experienced tingling in his left thumb (R1, T44).
In a report dated 14 September 2015 (R1, T45), Dr Jarrett reported that the Applicant had been moderately uncomfortable following the surgery and was taking both Endone and Tramadol for the pain. On examination, his portal wounds were healed. It was noted that the Applicant was in a sling and therefore his range of motion was not assessed. Dr Jarrett told the Applicant that his arm should remain in a sling for at least a further five weeks after which he could start to wean from his sling and use his arm for light activities. Dr Jarrett prescribed the Applicant with Tramadol and Endone for the pain at his request.
On 29 September 2015, the Applicant attended a health campus emergency department. It is not clear on the documents (R1, T47 and T48) which health campus this was. The notes indicate that Applicant reported that he had undergone a rotator cuff repair on 14 September 2015 and that the Applicant had noticed that day that he was unable to bend his left thumb as it was completely numb and he was experiencing altered sensation through to his shoulder (R1, T47).

Dr Jarrett provided a further report dated 2 October 2015 (R1, T49). Dr Jarrett reported that the Applicant remained moderately uncomfortable following his shoulder surgery and had noticed tingling and discomfort in his left forearm with an inability to flex his left thumb over the past week. On examination the Applicant was unable to flex his thumb. Dr Jarrett had arranged for the Applicant to have an ultrasound of his left thumb to assess his flexor pollicis longus as well as nerve conduction studies.
Dr Peter Silbert (Neurologist) performed nerve conduction studies and provided a report dated 8 October 2015 (R1, T50). Dr Silbert reported that the Applicant's nerve conduction studies were normal however it was found that there was acute left proximal median motor neuropathy. Dr Silbert reported that the findings were patchy in that the opponens pollicis muscle was not involved and sensory fibres were spared. Dr Silbert reported that this pattern of involvement was usually seen in an inflammatory process such as Parsonage-Turner Syndrome (inflammatory brachial plexopathy).
Dr Jarrett provided a report dated 4 December 2015 (R1, T54). Dr Jarrett reported that the Applicant's shoulder remained sore however it was gradually improving. The Applicant reported that he still could not flex his thumb and he also experienced pain from his shoulder which often kept him awake at night and radiated into his forearm. Dr Jarrett reported that with regards to his shoulder the Applicant would continue to work with a physiotherapist and undertake exercises within limits of his comfort. Dr Jarrett was of the view that the Applicant could use the left arm for light activities but should avoid any heavier tasks until he is comfortable to do so. In respect of the Applicant's thumb Dr Jarrett had arranged an ultrasound of his medial nerve in the proximal forearm including the branch of FPL to assess any evidence of nerve compression at any point. Dr Jarrett reported that the Applicant was keen to return to light duties at work (T54).
As noted above, since the time of the First progress certificate dated 31 March 2015, Dr Tang continued to provide progress certificates of capacity. By the progress certificate of capacity dated 23 December 2015 (R1, T66) Dr Tang reported that the Applicant was better on the whole, he had reported less pain through his left shoulder and arm, however it was still easily aggravated by increased activity and exercises. The Applicant had reported constant discomfort in his left forearm and remained without flexion through his left thumb. Dr Tang considered the Applicant had capacity for alternative duties from 23 December 2015 to 6 January 2016.
Dr Adrian Brooks (Plastic Surgeon) provided a report dated 23 December 2015 (R1, T67). Dr Brooks reported the Applicant’s history to have been that he underwent an arthroscopic left shoulder subacromial decompression and supraspinatus repair. When the Applicant woke from the procedure, he experienced tingling through his thumb and little fingers. The Applicant was told that this was normal and had occurred secondary to the local anaesthetic block. The Applicant reported that over the following month or so, it became harder and harder to bend the IP (inter-phalangeal) joint of his left thumb. The Applicant reported that he was now completely unable to bend it. Dr Brooks considered that it was a nerve problem in the brachial plexus at the level of the neck. Dr Brooks stated that because the condition took a while to develop, it was likely nerve irritation. Dr Brooks considered that the Applicant's thumb issue occurred as a result of the shoulder surgery. Dr Brooks recommended a repeat EMG and an MRI scan of the neck and shoulder area to look for any signs of focal demyelination. Dr Brooks noted that should there be a demyelinating injury in the cervical plexus or in the area of the shoulder surgery then recovery may be minimal and it may be required or necessary to think about tendon transfer surgery. Dr Brooks recommended that the Applicant undertake hydrotherapy and physiotherapy to improve range of motion through his shoulder as well as strength. Dr Brooks considered that the Applicant was capable of working normal hours performing light alternative duties alternating between the office environment and the workshop yard environment. Dr Brooks was unsure whether the Applicant would require further surgery for his thumb.
Dr Silbert provided a further report dated 24 December 2015 (R1, T68). Dr Silbert reported that the EMG findings were consistent with acute denervation in the left median nerve distribution with no activation of motor unit potentials in the left flexal pollicis longus and flexor carpi radialis muscles. Chronic neurogenic changes in the left opponens pollicis and triceps muscles were also noted. Dr Silbert considered that these findings were consistent with an inflammatory plexopathy mainly involving the medium nerve fibres.
In a report dated 6 January 2016 (R1, T69), Dr Jarrett reported that the Applicant's shoulder was doing relatively well, and he was gradually getting more motion and comfort. Dr Jarrett noted that there was no function through the Applicant's left flexor pollicis longus and nerve conduction studies did not demonstrate any innervation of this. Dr Jarrett reported that Dr Silbert felt that it was either idiopathic or related to the nerve injection. Dr Jarrett was of the view that with regards to the Applicant's thumb it should be left alone to see if it recovers and if it did not recover then a tendon transfer should be considered. Dr Jarrett recommended continuing physiotherapy and increasing his light duties at work. Dr Jarrett was hopeful that the Applicant would return to truck driving in the middle of the next month (T69).
Dr Tang provided a progress certificate of capacity dated 20 January 2016 (R1, T74). Dr Tang reported the Applicant's left shoulder was improving and he experienced less pain, although the Applicant reported some intermittent aching and grabbing pain. The Applicant's range of motion was reportedly much better, and he had full flexion, full abduction, internal rotation hand to lower mid back, was able to reach his left hand behind his head quite comfortably and was able to reach his left hand across his chest to his right shoulder with caution. The Applicant reported persistent mild tingling in his left forearm and still had no movement at his left thumb joint. The Applicant was considered fit for alternative duties from 20 January 2016 to 10 February 2016 for eight hours per day, four days per week. Dr Tang considered that the Applicant should avoid lifting above three kilograms and gripping with his left hand, avoid repetitive actions with his left arm and shoulder and avoid pushing, pulling and twisting with his left hand and arm. Dr Tang reported that the Applicant could not undertake truck driving duties, but could drive a car or utility.
Dr Brooks provided a further report dated 2 February 2016 (R1, T76). Dr Brooks reported that the EMG report provided by Dr Silbert suggested the diagnosis to be a post-operative inflammatory neuralgic amyotrophy and Parsonage-Turner Syndrome. Dr Brooks reported that Parsonage-Turner Syndrome usually recovers spontaneously. Dr Brooks reported that the rate of recovery was relative to age. Dr Brooks stated that it was difficult to determine whether the post-operative pain the Applicant experienced was due to the shoulder injury or the post-operative inflammatory changes. Dr Brooks was of the view that it seemed more likely that the crash exacerbated some underlying degenerative shoulder problems and the trauma of the surgery and/or the anaesthetic block somehow predisposed the Applicant to post-operative inflammatory cascade. Dr Brooks considered recovery should occur although it could take up to three years. Dr Brooks said that there were a number of options, firstly ongoing observation (non-surgical), secondly nerve transfer procedure and thirdly, a tendon transfer procedure. Dr Brooks noted that of the two surgical options the second gave more immediate results and the first would be dependent upon the surgeon’s familiarity with the technique.
Dr Jarrett provided a report dated 17 February 2016 (R1, T79). Dr Jarrett reported that the Applicant's shoulder continued to improve and he had gradually gained more motion and comfort. The Applicant did not appear to have any further improvement in his ability to flex his left thumb DIP joint, however, he reported that comfort in his forearm had been improved. Dr Jarrett reported that the Applicant would continue with his physiotherapy and exercises at work and, in regards to his thumb, Dr Jarrett thought that he should continue to leave it alone to see if it recovered by itself. In the event that it did not improve, Dr Jarrett said he would then consider a tendon transfer. Dr Jarrett was happy for the Applicant to gradually increase his activities at work in line with comfort.
Dr Jarrett provided a further medical report dated 16 March 2016 (R1, T83). Dr Jarrett reported that the Applicant's shoulder continued to improve and he could undertake the majority of his tasks at work with relative ease. The Applicant did not appear to have any further improvement in his ability to flex his left thumb DIP joint. The Applicant was to continue with physiotherapy and exercises. In respect of his employment, the Applicant could use his affected arm for all activity in line with his comfort and could return to his pre-injury duties. Dr Jarrett was of the view that they should continue to leave the thumb alone to see if it recovered. Dr Jarrett noted that this may take a number of months and sometimes up to a year before they saw any improvement. Dr Jarrett stated that if it did not improve he would consider a tendon transfer in future.
Dr Jarrett provided a further medical report dated 8 June 2016 (R1, T85). Dr Jarrett reported that the Applicant's shoulder ached particularly at the end of the day and he experienced some clicking but overall his range of motion was reasonable and his function had improved. Dr Jarrett arranged for the Applicant to return to Dr Silbert to perform further neurophysiology studies to see if there were any signs of renervation. If there were no signs of renervation Dr Jarrett would consider an FDS4 to FPL tendon transfer. The Applicant reported no improvement in his ability to flex his left thumb DIP joint and he found this increasingly frustrating. In regards to the left shoulder, Dr Jarrett recommended continuing with physiotherapy exercises and using his arm in line with his comfort.
Dr Silbert provided a further report dated 9 June 2016 (R1, T86). Dr Silbert reported that the EMG findings were those of denervation with no evidence of reinnervation of the left flexor pollicis longus and left flexor carpi radialis muscles. There was mild reinnervation of the left pronator teres muscle however this remained very weak and denervated. Dr Silbert was of the view that there was no significant electro physiological improvement since the previous EMG of 8 October 2015.
Dr Eamon Koh (Radiologist) performed an MRI of the Applicant's left shoulder and brachial plexus and provided a report dated 23 June 2016 (R1, T91). Dr Koh reported an intact rotator cuff repair and moderate subacromial subdeltoid bursitis associated with Type 2 acromium and moderate acromioclavicular joint arthropathy. Dr Koh also noted intermediate grade insertional superior subscapularis tear with biceps tendon subluxation and instability and mild biceps tendinosis. Dr Koh reported that there was no evidence of neuritis or other brachial plexus pathology in the imaging and no features of denervation in relation to the left shoulder girdle. A left C4/5 disc protrusion was incompletely visualised in the brachial plexus imaging.
Dr Brooks provided a further report dated 6 July 2016 (R1, T92). Dr Brooks reported that the EMG studies showed no improvement in the six months since the Applicant began complaining of symptoms. Dr Brooks noted that the reinnervation that had occurred to the pronator teres muscle was very weak and if recovery was to occur the degree of recovery was likely to be less than functional. Dr Brooks noted that the Applicant had full active range of motion in his left shoulder and no active flexion at the IP joint of his left thumb, however, he had a full passive range of motion at the IP joint of his thumb. Dr Brooks considered that the Applicant did not require any further treatment for his shoulder. Dr Brooks recommended tendon transfer surgery. Dr Brooks noted that post-operatively, the Applicant's thumb would require a period of splinting in a thermoplastic splint and three to six months of intensive therapy. Dr Brooks was of the view that the Applicant had capacity for work from the point of view of his shoulder however his thumb limited his ability as a truck driver to be able to hold a steering wheel, change gears and manipulate hoses as required.
The Applicant returned to his pre-injury duties on 7 July 2016. The Applicant suffered an incident at work involving his left shoulder on 7 or 8 July 2016 (see [14] above).
In a progress certificate of capacity dated 11 July 2016 (R2, T4), Dr Tang reported that the Applicant had suffered left shoulder pain the week before while handling a hose and lifting it above his shoulder. The Applicant reported experiencing persisting focal pain in the superior and lateral left shoulder. Dr Tang reported that the Applicant maintained good range of motion through the left shoulder, however suffered pain in the end range of motion. His impingement test was positive. Dr Tang reported that the Applicant had no movement through his IPJ of the left thumb. Dr Tang considered the Applicant was fit for alternative duties from 11 July 2016 to 22 July 2016. The Applicant was to avoid repetitive use and lifting with his left arm and shoulder.
Dr Brooks provided a WorkCover WA progress certificate of capacity dated 20 July 2016, following an assessment of the Applicant on 14 July 2016 (R1, T101). Dr Brooks reported that the Applicant had undergone tendon transfer surgery and that the Applicant had no capacity for work from 14 July 2016 to 20 July 2016 and had capacity for light office duties from 20 July 2016 to 27 July 2016. The Respondent covered the costs of that surgery.
Dr Brooks provided a report dated 7 September 2016 (R1, T108). Dr Brooks reported that the Applicant had continued to make excellent progress and had now achieved active range of motion at the thumb IP joint. Dr Brooks reported that the Applicant could fully oppose the thumb down to the little finger MCP joint crease and was finding his hand was increasingly functional again. Dr Brooks reported that on testing, the Applicant had a three kilogram lateral key pinch using the effected left thumb verses five kilograms on the unaffected right thumb. Dr Brooks considered the Applicant was now in a position to begin driving again as he would be able to change gears appropriately and safely. Dr Brooks reported that the Applicant could begin some duties using the hand and shoulder as tolerated.
Dr Brooks provided a further certificate of capacity dated 19 September 2016 (R1, T112). Dr Brooks reported that the Applicant's left shoulder pain had recurred. He assessed the Applicant as having capacity for alternative duties from 19 September 2016 for one month and that he could drive with a buddy as tolerated by pain.
Dr Paul Khoo (Orthopaedic Surgeon) provided a report dated 22 September 2016 (R1, T114). He reported that the Applicant had said that he reinjured his shoulder on 7 July 2016. Dr Khoo reported that the Applicant had advised that his truck was parked on a slope and the Applicant had tried to throw the hose over the hose holder on the truck and experienced pain. The Applicant indicated that his acromioclavicular joint was the site of his pain and reported experiencing clicking at the joint. The Applicant reported that this was a different kind of pain than what he had previously experienced in relation to the rotator cuff tear. On examination, Dr Khoo reported that the Applicant had full range of movement in all directions. Dr Khoo reported that the Applicant's acromioclavicular joint was swollen and tender to palpate and that he was also experiencing pain on cross arm adduction and pain on axial compression. The Applicant reported pain on testing the supraspinatus which was four out of five in power and impingement tests were positive. Dr Khoo also reported tenderness at the long head of the biceps tendon in the bicipital groove. Dr Khoo reported that the Applicant was not keen on any active intervention at that stage as he was still recovering from his thumb surgery. Dr Khoo was of the opinion that the Applicant would be able to perform truck driving and light duties. Dr Khoo noted that a buddy should perform all of the hose work. Dr Khoo stated that given the Applicant's examination, he believed that the Applicant had acromioclavicular joint arthrosis and symptoms related to the rotator cuff repair and subscapularis partial tear and long head of biceps subluxation. Dr Khoo reported that if the Applicant could not return to his pre-injury duties he may require surgery to address these areas.
In a medical report dated 17 October 2016 (R1, T123), Dr Brooks reported that the tendon transfer had worked and they had achieved an excellent result. The Applicant had no ongoing restrictions for work from the perspective of his thumb. It was noted that the Applicant had a flare up of his left shoulder pain and as such was seeing Dr Khoo. Dr Brooks spoke with Dr Khoo and Dr Brooks was of the view that if the steroid injection to the shoulder was unsuccessful, then the Applicant may well benefit from further surgery. The Applicant reported that he wanted his shoulder to get better. Dr Brooks was of the view that the Applicant had exacerbated a pre-existing condition or reinjured the same condition.
Dr Mike Bynevelt (Neuroradiologist) undertook an MRI of the Applicant's cervical spine on 24 October 2016. Dr Bynevelt reported (R1, T125) that the Applicant was suffering from persistent left sided shoulder pain. Mild cervical spondylotic changes with notable foraminal narrowing at C5/6 and C6/7 bilaterally were found with minor degenerative changes in the thoracic region.
Mr Phillips provided a further report dated 2 November 2016 (R1, T126). Mr Phillips reported that the Applicant was coping with all activities of normal daily living, however, that he had some difficulty making the bed. On examination, Mr Phillips reported that the Applicant continued to complain of tingling down the arm, though he demonstrated excellent elevation and some minor restriction in internal and external rotation. Mr Phillips noted that the Applicant was mildly positive for long head of biceps instability and stressing of the subscapularis. Mr Phillips reported that there was some concern regarding a C4/5 disc protrusion which could cause shoulder pain, however, Mr Phillips noted that this would not have caused a cracking sensation in the shoulder and would not have responded to the injection. Mr Phillips indicated that arthritic change in the acromioclavicular joint was a normal finding and was part of the ageing process. Mr Phillips suspected that the Applicant may have had mild impingement, however, that appeared to have improved. Mr Phillips considered that the Applicant could be experiencing pain from the acromioclavicular joint, but noted that this was not tender today and some of his symptoms appeared to relate more to the instability of the biceps which was related to the subscapularis. Mr Phillips was of the view that on the balance of probabilities the Applicant's condition was still related to his employment in that pre-existing changes at the shoulder were rendered symptomatic and aggravated by the July 2016 incident. Mr Phillips further considered that it was more likely the subluxation of the long head of the biceps tendon which was giving rise to immediate pain, however, it appeared that a lot of the pain was now settling. Mr Phillips recommended that the Applicant should have a formal MRI scan of the cervical spine before considering any surgical intervention to assess the C4/C5 disc protrusion on the left. Mr Phillips noted that if the Applicant was continuing to have symptoms of impingement despite the surgery then further decompression was required. Mr Phillips reported that the Applicant had capacity for work with some restrictions relating to throwing and pulling activities with his left shoulder.

In disagreeing with Mr Phillips’ assessment that the Applicant would have been able to perform pre-injury hours and duties by 3-4 months after the surgery in September 2016, Mr Zandi says at pages 4 and 5 of his report that:
It was after the second incident, which resulted in significant aggravation of Mr Weston’s AC joint arthritis resulting in arthropothy and increased oedema, as well as tearing of the superior part of the subscapularis and subluxation of the biceps, when his shoulder became further symptomatic and he was not able to return to full duties.
…Given Mr Weston had remained symptomatic as a result of the second injury, he has not been able to return to work in an unrestricted fashion.
Finally, in answer to the question:
Following your examination do you consider the acromioclavicular joint to be symptomatic?
Mr Zandi responded:
I think his current symptoms are relate to his AC joint arthropothy, as well as the biceps subluxation and tearing of the superior part of the subscapularis and I think all of these matters will require dealing with from a surgical point of view to hopefully help him with his recovery.
(A4 at page 5)
On 19 July 2018 Dr Khoo provided a further report (A7). Having set out the Applicant’s full history including the prior surgical history and treatment, Dr Khoo confirmed that in his opinion the Applicant continued to suffer from the symptoms associated with the injury to his shoulder, that he was not fit for unrestricted work and disagreed with the majority of conclusions reached by Mr Phillips. In response to the question:
Do you disagree with Mr Phillips’ conclusion at question 12 that Weston “does not require any further medical treatment in respect of his condition”?
Dr Khoo responded:
Mr Weston is now approximately 33 months after his index surgery of the left shoulder. He has residual symptoms mainly at the acromioclavicular joint. There are other structures in the shoulder based on the MRI scan taken approximately 2 years ago that will not heal. These include acromioclavicular joint active arthrosis and long head biceps subluxation into the upper subscapularis tendon. At the time, the supraspinatus repair was intact. There was mild weakness of the supraspinatus on examination. In my opinion, it is reasonable to offer surgery at this late stage with a long period of light duties, analgesia and non-operative treatment after the re-injury.
(A7 at page 7)
Dr Khoo then goes on to detail the surgery that he proposes on the Applicant’s shoulder and to disagree with Mr Phillips’ view that there was no objective evidence that the Applicant did not continue to suffer symptoms of the injury and with Mr Phillips’ view that the Applicant would be able to perform his pre-injury duties.
The final report is the Operation Report dated 27 July 2018 (A8) on the operation undertaken by Dr Khoo on that date. The operation was undertaken in the public system. The report identified the procedures as:
Left shoulder arthroscopy + subacromial decompression + acromioplasty + biceps tenodesis + mini-open cuff repair + Ac joint excision.
Under the heading “Findings” the report states:
GHJ – grade 3 condral wear superior glenoid
biceps synovitis and subluxation + SLAP tear (peel back sign)
near full thickness supraspinatus tear identified both intra-artcicular and subacromial
previous rotator cuff repair
grade 4 ACJ active arthritis
residual acromial spurs and bursitis
In his evidence at the hearing Dr Khoo described the operation that he did on the Applicant as follows (Transcript of 24 August 2018 at page164):
DR KHOO: So it is a left shoulder arthroscopy, which is keyhole surgery, in which all of the structures of the shoulder are inspected. There was a subacromial decompression which entails flattening off an area of bone at the at the acromion, which is one of the bones of the shoulder blade, and there was a biceps tenodesis. What this means is that the biceps tendon is released because it was not in the correct position, meaning it was - that is what we mean by when it is subluxed, and it is re-attached back onto another area where it is out of harm’s way, so to speak. The long headed biceps normally takes a few right angle turns in the shoulder and it is prone to injury and he also had a rotator cuff repair and acromioclavicular joint excision. At the time of the surgery, because this is a repeat surgery, one of the things that in my practice that I routinely do is to send specimens off to microbiology. It was found on inspection that the rotator cuff repair was torn and it was more or less fully torn off the attachment and there were loose sutures there, so the
MR BRUNS: Can I just interrupt you there, when you speak about the rotator cuff repair, are you referring to an earlier operation we have heard about in September 2015?
DR KHOO: That is correct.
MR BRUNS: Can you just help us by perhaps briefly explaining what had been done in 2015 and what has happened to that repair?
DR KHOO: In 2015, the patient underwent, firstly, a subacromial decompression and that is the flattening off of the bone to give space underneath it. He also underwent an arthroscopic rotator cuff repair. On my review of the imaging, the MRI scan, he has approximately three anchors that I can see. One in what we call the medial row, which is the anchor close to the cartilage but is still in the footprint where the tendon inserts onto, and there are two anchors in the lateral row. These anchors are attached to sutures which are placed through the rotator cuff and the rotator cuff is then tied onto the footprint of that or its attachment.
…
MR BRUNS: …in 2015?
DR KHOO: Well looking at the MRI, so only Mr Jarrett will know exactly happened in that operation, but looking at the MRI scans, I can see where the anchors were placed and I can assume that that was the surgery that was carried out.
MR BRUNS: What did you see when you looked at the results of that surgery in 2018?
DR KHOO: In 2018 on arthroscopic inspection, there was very little of the rotator cuff still attached onto the footprint and the sutures were, essentially, loose, there were loos[e] sutures. That specific suture which was found has been - was sent to the microbiologist to see if there was any infection involving that suture.
MR BRUNS: All right, but before we get to that, I just well want us to understand, had the original sutures stretched or had they broken or had they slipped or what was different?
DR KHOO: The original sutures are placed through the rotator cuff tendon and because there is no tendon there because it has torn through, the sutures are non-absorbable so they simply remain loose, still attached to the anchor.
MR BRUNS: What do we say about the original repair? Was it intact or had it failed or --?
DR KHOO: The original repair appears to have failed.
…
MR BRUNS: All right. What we are talking about refers to the mini-open cuff repair, so you had to, and I see the words in your reports, re-do. Is that - you had to re-do that repair?
DR KHOO: That is correct. The rotator cuff, although it was torn, it was still in the vicinity of the repair site and we could mobilise the tendon and repair it back onto the bone this time using a further four anchors to fix it back onto the bone. It is called mini-open because it is done through a small incision and that is my usual practice in this situation.
Dr Khoo went on to describe the other aspects of the surgery carried out on the Applicant. He was then asked to compare what he had diagnosed and the surgery that he had recommended in his report of 22 September 2016 (R1, T114). Dr Khoo’s evidence was (Transcript of 24 August 2018 at pages167-168):
MR BRUNS: All right, so if I can go back to your first report, 22 September 2016 at T114, at the end, you propose surgery because you said he had, and I am quoting, “acromioclavicular joint arthrosis and symptoms also in relation to the rotator cuff repair and also to a subscapularis partial tear and long headed biceps subluxation”?
DR KHOO: Yes, that is true.
MR BRUNS: Were those expectations or that diagnosis, was that borne out by your surgery or do you have to revise what you said back then?
DR KHOO: The surgery addressed all of those four areas set out in that report, which is now a couple of years ago.
THE ISSUES
The Applicant’s SIFC identifies the issues as being:
1. Whether the applicant has continued to suffer since 5 January 2017 incapacitating symptoms and a need for treatment as a result of the injury on 30 March 2015 (Application 2017/0753).
2. Whether the applicant has continued to suffer since 18 October 2016 incapacitating symptoms and a need for treatment as a result of the injury on 7 July 2016 (Application 2017/6454).
The Respondent’s SFIC described the issues as follows:
60. Whether the applicant's shoulder injury sustained on 30 March 2015 continues to result in:
a.a requirement for medical treatment pursuant to section 16 of the SRC Act; and
b.some incapacity for work pursuant to section 19 of the SRC Act.
61. If the applicant's injury no longer results in a requirement for medical treatment or some incapacity for work, the date upon which the applicant's entitlement to ongoing compensation pursuant to sections 16 and 19 of the SRC Act should be said to have ceased.
62. Whether the applicant's shoulder injury sustained on 7 July 2016 continues to result in:
a.a requirement for medical treatment pursuant to section 16 of the SRC Act; and
b.some incapacity for work pursuant to section 19 of the SRC Act.
63. If the applicant's injury continues to result in a requirement for medical treatment or incapacity for work, is the applicant's requirement for treatment or incapacity a result of the injury sustained on 7 July 2016 or some other cause?
64. If the requirement for medical treatment or incapacity for work results from the injury sustained on 7 July 2016, what is the requirement for medical treatment and what is the degree of the applicant's incapacity for work?
65. If the applicant's injury no longer results in a requirement for medical treatment or some incapacity for work, the date upon which the applicant's entitlement to ongoing compensation pursuant to sections 16 and 19 of the SRC Act should be said to have ceased.
Although expressed in different terms, the effect of the Applicant’s identification of issues and the effect of the Respondent’s description of the issues for determination are the same. I agree, that other than the jurisdictional issues raised by the Respondent, the issues as identified by the parties are those that I have to determine.
CONSIDERATION
Factual issues
There were a number of factual issues raised by the Respondent in relation to which there was considerable evidence (oral and documentary), cross-examination and submissions. The main factual issues raised by the Respondent were the height of the bracket over which the Applicant was throwing the hose when the second incident occurred in July 2016; the weight of that hose; and the hours worked and the type of work undertaken by the Applicant since January 2017.
The Applicant describes the incident in July 2016 in his witness statement (A1 at page 7) as follows:
The hose is stored at the rear of the truck at above shoulder height.
By June 2016 my shoulder problems had reduced to an ache at the end of the day.
On 8 July 2016 I attended at McCalls Mechanical Naval Base to collect oil. I completed the job and then threw the hose onto the hose supports. I felt a crack and immediate pain in my left shoulder.
At the hearing the Applicant was cross-examined at considerable length about the height of the bracket and was asked to demonstrate the height of the bracket over which he threw the hose by reference to his extended arm. The Applicant indicated in the witness box by lifting his right arm (his left arm was in a sling following surgery on his shoulder) that in order to wrap/throw the hose over the top of the bracket he had to extend it fully. The Applicant’s evidence was that the ground on which he was standing when he undertook that exercise on that day was sloping away from the truck so the height of the top bracket above ground level would be even greater than might be indicated in the photographs of the hose wrapped around the spool and brackets which was put into evidence (A3, R4, and R1, T120).
I find that the Applicant’s evidence in relation to this issue was clear and consistent with the photographic evidence. Far from contradicting the Applicant’s evidence, the photographic evidence confirms his version of events. Exhibit R4, a photograph produced by the Respondent showing Mr Muir standing at the back of a truck next to the coiled hose wrapped around the spool and over the top bracket, rather than contradicting the Applicant’s evidence, supports it. In that photograph Mr Muir’s right arm is extended above his shoulder at about 50 degrees to the horizontal. His right hand, with his thumb looped under the bottom of the hose, is about 30 cm above the top of his head. The photograph in Exhibit R4 and the other photograph produced by the Respondent which was put into evidence, which I understand was a still from a video prepared by the Respondent that was not presented at the hearing, show the back of the truck after the end spool around which the hose is wrapped was lowered to allow for easier coiling of the hose. The photograph included in the T-documents at R1, T120 is of the rear of the truck showing the end spool and bracket with hose coiled in the configuration at the time of the July 2016 incident, that is before the spool and bracket were lowered to the position shown in photographs in Exhibit A3. That photograph clearly shows that the end spool is about half a metre higher than it was in the photograph in Exhibit R4 showing Mr Muir with his arm extended above his head. Taking into account the flange around the edge of the end spool around which the Applicant would have had to have wrapped the hose in July 2016, it is easy to see how the Applicant’s arm would have been fully extended just to reach the top of the flange section as he claims, particularly taking into account his evidence that where he was standing to undertake the exercise was lower.
Another particular of the incident of July 2016 on which the Applicant was cross-examined at some length was whether he used his left arm to wrap the hose around the end spool or his right arm. His evidence was that he used both arms in the sense that he used his right arm to support the hose in front of the part of the hose that was being wrapped or “flicked” (Transcript of 22 August 2018 at page 58) over or around the end spool (called by the Applicant the “C bit” as it is in the shape of a “C”) which was on the left hand corner of the back of the truck. The hose was wrapped clockwise around the spool and the brackets. Again, I find the Applicant’s evidence as to the mechanics of the exercise that he was undertaking on that day totally logical and consistent. In fact, it is difficult to see how the process of wrapping the hose around/flicking it over the end spool and over the top brackets on the truck, as configured at that time, could have been undertaken any differently to the way in which the Applicant described it.
The third matter on which the Applicant was cross-examined and in relation to which the Respondent has made submissions, is whether the hose had oil in it at the time that he was coiling it. The Applicant’s evidence was that there was oil in the hose at the time (Transcript of 22 August 2018 at page 57). The evidence of Mr Muir (Transcript of 23 August 2018 at page 149) was that he would expect that the hose would be full of oil “very rarely. Maybe two or three percent of the time at most. It should be empty”. His evidence was that this was because when the operator finished sucking the oil through the hose “you release the suction or it sucks dry and it starts [sucking] air, the air then follows through and clears the line” (Transcript of 23 August 2018 at page 149). He did concede (Transcript of 23 August 2018 at page 150) that it was possible that the hose could have been full of oil.
I note that the Applicant was not cross-examined on this issue. The evidence that Mr Muir was to give on that issue was not put to the Applicant. In effect Mr Muir’s evidence was nothing more than speculation and cannot be treated as evidence of the state of the hose on the day in question. The only direct evidence was that of the Applicant and his evidence is to be preferred.
In any event, my understanding of the thrust of the medical evidence is that whether the hose was full of oil, heavy or light, is irrelevant. It is the action of throwing or flicking the hose and the rotation of the shoulder that is critical.
The other factual issue raised by the Respondent relates to the hours worked by the Applicant and the type of work undertaken by him following his being told not to return to work with the Respondent and payments stopping in January 2017. It had never been claimed by the Applicant that he was totally incapacitated for work. On the contrary, the progress certificates of capacity included in the T documents (R1 and R2) which go up to January 2018 (R2, T17) advise that the Applicant has “some capacity for work” and is capable of undertaking “modified or alternative duties”. It is significant, in my view, that the Applicant was working with the Respondent undertaking modified or alternative duties when in January 2017 the Respondent terminated his payments and told him that he could not return to work until he was “certified 100% fit” (Applicant’s witness statement A1 page 9). The Respondent did not dispute that it had so informed the Applicant.
I do not accept the Respondent’s submission that “…the Applicant has lied to or misled the medical practitioners in these proceedings in relation to his capacity to work, and has lied or misled the medical practitioners in relation to the amount of work he has undertaken since February 2017” (Respondent’s Outline in closing paragraph 17). That may have been an argument that the Respondent could have raised if the Applicant was claiming total incapacity for work, however, the Applicant’s case has always been that he is partially incapacitated and that he is unable to return to his pre-injury duties. In that regard, I accept that on the evidence the Applicant has not since January 2017, when he was told by the Respondent not to return to work until he was certified 100% fit, been employed in a role that would be as physically demanding as the work that he was doing in June 2016.
While it may be the case that the advice that the Applicant gave to the doctors when they were taking histories from him was vague and probably erred on the side of underestimating the hours that he had worked, I do not accept that they equates to the Applicant lying. As was shown during cross-examination of the Applicant, depending on how one measures an average week or over what period the hours worked are averaged out, this changes the result. It is not fair to categorise the imprecise hours given by the Applicant as lies. Insofar as the Respondent seeks to assert that the Applicant’s advice to the doctors affected their assessments, the critical opinion upon which the Respondent relies is that of Mr Phillips. In its Outline of closing submissions (at paragraph 13(b)), the Respondent argues that “…the Applicant told a conscious lie to Mr Phillips about the number of hours he was working at Treloar Transport and Narrogin Plant Hire ..” as reflected in Mr Phillips’ report of 10 April 2018 (R7). Even if that were true, it clearly did not impact the outcome of Mr Phillips’ report which, as well as expressing the views set out in [140] above, concluded that:
His pain response at this joint I considered to be grossly exaggerated.
…
His expressions of pain and discomfort suggested a voluntary exaggeration.
(R7 at page 5)
and reached the “overall prognosis in relation to” the Applicant’s condition that he had:
No ongoing disability.
(R7 at page 10)

Dr Khoo was also cross-examined as to whether his opinion expressed in his report of 15 May 2017 (R2, T10) would have been different if he had been aware of the exact hours that the Applicant had worked in the period leading up to his examination of the Applicant for that report. In that report Dr Khoo expressed the opinion that (R2, T10 at 46):
…Mr Weston is currently unfit for his usual work. I believe that this is a result of the initial accident and also the re-injury from throwing the hose.
Dr Khoo was shown the schedule of hours (R3) extracted from pay slips issued by Narrogin Plant Hire and Treloar Transport. Dr Khoo’s evidence (Transcript of 24 August 2018 at page 177) was to the effect that the number of hours worked is not the critical issue, but rather the type of work undertaken. Dr Khoo put it as follows:
It’s not so much the hours, but what the actual duties were, whether they were light duties or heavy duties. The things we ask in the history and examination are mainly in terms of the shoulder symptoms such as pain and stiffness and the area where there’s pain, whether it wakes them from their sleep at night, whether they avoid above shoulder-level activities, and those are the main indicators of what is affecting the patient at this point in time where we base our clinical decision making.
The end result was that Dr Khoo’s opinion, which, as he pointed out, was as to the type of work that the Applicant could undertake, specifically whether he was capable of performing his pre-injury duties, would not change. I think that this is an important distinction. Much of the Respondent’s case seemed to be aimed at establishing that the Applicant had worked, even worked quite extensive hours, and that that somehow undermined the Applicant’s case and the medical opinions on which the Applicant relies. The Applicant’s case has never been, nor has the medical evidence that the Applicant relies on been, to the effect that the Applicant cannot work. It has always been to the effect that because of the continuing effects of the injury of 30 March 2015 and the aggravation of that injury in July 2016, or, in the alternative as a result of a new injury in July 2016, the Applicant is partially incapacitated for work and he is unable to return to his pre-injury duties.
Competing medical evidence
In the end, the parties’ respective cases fall to be determined on which of the medical opinions is accepted. While a number of doctors gave evidence, the Respondent in effect relies on the evidence of Mr Phillips and the Applicant relies on the evidence of Dr Khoo and Mr Zandi. The determination of 5 January 2017 was based on the opinion provided by Mr Phillips and supported by the opinion of Dr Brooks. Dr Brooks was primarily dealing with the Applicant’s thumb condition.
Critically for present purposes, the latest report from Mr Phillips, that of 10 April 2018 (R7) expressed the opinions and reached the conclusions set out in [140] and [141] above. Relevantly Mr Phillips’ view was that:
(a)the Applicant’s rotator cuff/shoulder injury had resolved;
(b)there is no evidence of a disability and that the Applicant’s work capacity was not limited as described by him;
(c)he did not consider that the Applicant had rendered the acromioclavicular joint symptomatic;
(d)the Applicant had made a full recovery; and
(e)the Applicant does not require future medical treatment in respect of his condition.
Dr Khoo’s opinion as set out in his report dated 19 July 2018 (A7), shortly prior to surgery on 27 July 2018, was as set out at [148] and [149] above. Critically, his opinion was that the Applicant continued to suffer from the symptoms associated with the injury to his shoulder, that he was not fit for unrestricted work and disagreed with the majority of conclusions reached by Mr Phillips. He still considered that surgery was the best reasonable option and set out in detail in that report the surgery that he recommended be performed. That recommendation was largely along the same lines as he had proposed in his report of 9 September 2016.
Which opinion is then to be preferred? In this case that choice was made easy by the fact that the surgery proposed by Dr Khoo was performed on 27 July 2018. The outcome of that surgery indicated that Dr Khoo’s opinion was correct. Further, what was disclosed by the surgery on 27 July 2018 was that many of the bases on which Mr Phillips had formed the views expressed in his report of 10 April 2018 were wrong. When confronted with the results of the surgery that indicated that Dr Khoo’s diagnosis was correct and that aspects of his diagnosis, in particular the aspects set out in [172] above, were incorrect, Mr Phillips’ response was (Transcript of 24 August 2018 at page 192):
MR BRUNS: Would you now have to revise your opinion based on the findings at operation that the surgery was necessary, wasn’t it?
MR PHILLIPS: The surgery - the indication for surgery is based not simply on radiological findings, it’s based on symptoms and so at that point in time I didn’t think that the symptoms warranted it. It would appear - it would appear that Dr Khoo has subsequently considered that the symptoms did warrant it.
MR BRUNS: All right. And I’m not suggesting that your opinion wasn’t completely reasonable at the time on the information you had but the operation finding, doesn’t that show that, in fact, Mr Khoo was right?
MR PHILLIPS: It confirms that there was pathology there. As I say, the indication for surgery relates to the presentation of the symptoms.
MR BRUNS: All right. Well, you certainly had a presentation of symptoms, didn’t you?
MR PHILLIPS: Yes. At that point in time I didn’t think that the symptoms warranted surgical intervention.
Further on Mr Phillips said (Transcript of 24 August 2018 at page 197):
MR BRUNS: Right. Well, you have the history that there was a crack when he was throwing the hose and that he felt pain afterwards and as you say, we now have evidence that surgery of the failure of the first repair and other features. So can we take it that additional evidence might cause you to reconsider that comment?
MR PHILLIPS: Yes, it would cause me to reconsider it.
MR BRUNS: And similarly at the bottom of the page, paragraph 12 you thought then he didn’t require any future medical treatment, you now accept that the surgery was appropriate treatment?
MR PHILLIPS: Well, I can’t say that because I didn’t examine him just prior to the surgery. When I examined him I didn’t think surgery was required. Not - not all tears require surgery.
MR BRUNS: But you obviously accept that the previous repair had failed?
MR PHILLIPS: Yes.
MR BRUNS:…and it was reasonable to redo it?
MR PHILLIPS: Based on symptoms.
MR BRUNS: You’re saying based on symptoms it was reasonable to do it?
MR PHILLIPS: Yes. When I examined him I didn’t think the symptoms warranted it.
While Mr Phillips is understandably defensive of the diagnosis that he made in previous reports, in particular his report of 10 April 2018, the fact is that the surgery performed relatively shortly after his report showed that the Applicant’s rotator cuff injury had not resolved, that the Applicant had not made a full recovery and that surgery was indeed indicated. Obviously the medical evidence of Dr Khoo, and the results of the surgery undertaken on 27 July 2018, must be preferred over the opinions of Mr Phillips and Dr Brooks.
In relation to the issues identified by the parties, I therefore find that the Applicant's shoulder injury sustained on 30 March 2015, reinjured in July 2016, or, in the alternative, a new shoulder injury in July 2016, continued to:
(a)require medical treatment pursuant to section 16 of the SRC Act; and
(b)caused incapacity for work pursuant to section 19 of the SRC Act.
What the surgery undertaken in July 2018 establishes is that the repair of the shoulder undertaken by Dr Jarrett in September 2015, for which the Respondent accepted liability, had failed. The surgery that Dr Khoo ended up doing, and which is the basis of both applications, was to again repair the injury for which the Respondent had accepted liability by its determination of 8 May 2015. Whether that failure of the initial repair, the tearing of the tendons from the sutures connecting them to the bone, occurred when the Applicant threw the hose in June 2016 or at some other point, does not matter. Either way the injury addressed by the surgery proposed by Dr Khoo and undertaken by him in July 2018 was to address an injury to which s 16 of the SRC Act would apply. Similarly which ever sequence occurred, the incapacity as a result of the now demonstrated injury is properly compensable under s 19 of the SRC Act.
While there are two applications, as counsel for the Applicant confirmed at the commencement of the hearing, the compensation sought under s 16 of the SRC Act by the Applicant in both of the applications is the same surgery, namely that initially proposed by Dr Khoo in his 9 September 2016 report which was, in effect, carried out on 27 July 2018. Insofar as compensation is sought under s 19 of the SRC Act, again a finding of liability under s 19 of the SRC Act in application 2017/0753 would render a decision in application 2017/6454 unnecessary.
DECISION
In applications 2017/0753 and 2017/6454 the Tribunal:
(a)sets aside the reviewable decisions and in substitution for those decisions makes the determination that:
(i)the Respondent is liable under s 16 of the SRC Act for the cost of the surgery undertaken by Dr Khoo on 27 July 2018 and all other costs associated with that surgery: and
(ii)the Respondent is liable under s 19 of the SRC Act to pay to the Applicant compensation in respect of the Applicant’s partial incapacity for work.
(b)directs that the Respondent pay the costs incurred by the Applicant in applications 2017/0753 and 2017/6454.

I certify that the preceding 179 (one hundred and seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.....[sgd]...................................................................
Associate
Dated: 5 October 2018

Date(s) of hearing: 22, 23 and 24 August 2018

Counsel for the Applicant: Mr Bruns

Solicitors for the Applicant: Hoffmans Lawyers

Counsel for the Respondent: Mr Richards

Solicitors for the Respondent: HBA Legal

Date(s) of hearing:	22, 23 and 24 August 2018
Counsel for the Applicant:	Mr Bruns
Solicitors for the Applicant:	Hoffmans Lawyers
Counsel for the Respondent:	Mr Richards
Solicitors for the Respondent:	HBA Legal