Hettiarachchi and Comcare [2009] AATA 369 (21 May 2009)

Last Updated: 21 May 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 369

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/4923

GENERAL ADMINISTRATIVE DIVISION		)
	Re		GITANJALI INDIRA HETTIARACHCHI

Applicant

And

COMCARE

Respondent

DECISION

Tribunal

Mr B H Pascoe, Senior Member

Date 21 May 2009

Place Melbourne

Decision

The Tribunal sets aside the decision under review and in its stead finds that the applicant suffered an injury being a full thickness tear of the right shoulder supraspinatus tendon on 22 November 2006 in the course of her employment.

(sgd) B H Pascoe
Senior Member

COMPENSATION – tear of right shoulder supraspinatus tendon – whether arose out of employment – whether in the course of employment – decision set aside.

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

21 May 2009

Mr B H Pascoe, Senior Member

1. This is an application to review a decision of the respondent dated 10 August 2007 which denied liability for compensation for a condition described as supraspinatus (muscle)(tendon) strain (right).
2. At the hearing the applicant, Ms G Hettiarachchi, was represented by Mr S McCredie of counsel and the respondent by Mr J Wallace of counsel. Evidence was given by Ms Hettiarachchi and three orthopaedic surgeons, Mr I Jones, Mr M Patel and Mr S Schofield.
3. Ms Hettiarachchi is employed by the Australian Taxation Office. She has an accepted condition of carpal tunnel syndrome of the right arm from December 2005 which was treated surgically in April 2006. After a graduated return to work program, she resumed full time work in November 2006. Ms Hettiarachchi said that, on 22 November 2006, she felt a sharp pain in her right shoulder at approximately 11.00am. Initially, she thought that it was related to her carpal tunnel problem. She acknowledged that in prior months she had experienced some slight shoulder pain but this episode was different with the symptoms being a very sharp pain. She said that the pain was progressively worse during the day and, by next morning, she could not lift her right arm. Her husband drove her to see her general practitioner, Dr Rustomjee, who provided a certificate for two days. On 6 December 2006, an ultrasound of the right shoulder disclosed a full thickness insertional tear of the supraspinatus fibres. On 14 December 2006, Ms Hettiarachchi lodged a claim for compensation for the tear, attributed the injury to use of the computer mouse and stated that date of the injury as 21 November 2006.
4. Ms Hettiarachchi was referred to Dr Patel in February 2007 who confirmed a full thickness tear of the supraspinatus tendon. He gave her steroid injections which provided short lasting pain relief. He arranged on MRI scan and has recommended shoulder arthroscopy and rotator cuff repair.
5. Ms Hettiarachchi said that she had not reported the shoulder pain on the day as she assumed that it was related to the carpal tunnel injury. She said that she lodged the claim only after the results of the ultrasound showed a separate and distinct injury. She completed that form manually and maintained that the date shown as the date of injury was inadvertently incorrect and should have been 22 November 2006.
6. Mr Jones examined Ms Hettiarachchi on 14 May 2008. He confirmed that existence of a full thickness tear of the supraspinatus tendon in the right shoulder. He said that it was in general terms, a small tear and had the typical pathology of an ageing tear, which is a gradual weakening of the tendon, fibre by fibre over a period with the separation of the final fibres producing the full thickness tear. Mr Jones said that it was a very remote possibility of a spontaneous tear. He was of the view that it was likely that Ms Hettiarachchi had experienced some relevant pain prior to 22 November 2006. He was of the opinion that the tear, as such, does not cause pain with the pain being a reaction to resulting inflammation. Mr Jones was firm that the work performed by Ms Hettiarachchi including the use a computer mouse would not have contributed to the tear which was most likely caused by degenerative weakening of the tendon fibres.
7. Mr Patel agreed with Mr Jones that the most likely pathology was the degenerative development of micro tears in the fibre of the tendon over a period of time. He said that the final full tear could render a previously asymptomatic injury to symptomatic. He disagreed with Mr Jones on causation, believing that the work performed by Ms Hettiarachchi did contribute to the tear. He also disagreed on the question of the onset of the pain being of the opinion that a patient does experience sharp pain at the time of the final tear not only later with inflammation.
8. Mr Schofield did not examine Ms Hettiarachchi and assisted by reports from Mr Jones, Mr Patel and Dr Rustomjee provided a report dated 30 April 2009. He agreed with Mr Jones that the work of Ms Hettiarachchi, particularly the use of the right arm in an action to protect her carpal tunnel would not put any strain on the shoulder to cause the tendon to tear. While the reason for the tear was difficult to explain, he assumed that it was the result of a severely degenerate tendon. He was of the opinion that the final thickness tear was likely to have occurred on or about 22 November 2006 with that final tear likely to have resulted in immediate pain with subsequent pain from resulting inflammation.
9. The result of the evidence of the three orthopaedic surgeons in that two of the three are firmly of the view that the tear of the tendon was not caused by any activity related to employment. On the other hand two of the three are of the opinion that the occurrence of the full thickness tear occurred when Ms Hettiarachchi felt the sharp pain. On that first issue Dr Patel was in the minority while, on the second, Mr Jones was in the minority.
10. It was submitted by Mr McCredie that Ms Hettiarachchi suffered an injury to her right shoulder supraspinatus tendon which arose out of, or in the course of her employment. He relied on the opinion of Mr Patel that the injury arose from the use of a computer mouse. Alternatively, it was submitted that the injury occurred on 22 November 2006 when she felt the sharp pain during her work hours. He relied on the opinions of Mr Patel and Mr Schofield that the final tear occurred on that day when she felt the pain.
11. For the respondent, Mr Wallace submitted that the Tribunal should not rely on the evidence of Ms Hettiarachchi. It was said that the claim form stated the date of injury as 21 November not 22 November now said to be the date of the onset of pain. There is evidence of earlier complaints of shoulder which she had initially denied and it was said that the Tribunal should not be satisfied that a tear was suffered at work on 22 November 2006.
12. On the basis of the medical evidence, I am satisfied that the evidence of Mr Jones and Mr Schofield should be preferred that the type of work being performed by Ms Hettiarachchi was not the cause of the tear of the supraspinatus tendon. However, if the tear occurred in the course of her employment then, notwithstanding no direct contribution to the injury by her duties, the tear is an injury as defined under the Safety, Rehabilitation and Compensation Act 1988 (the Act).
13. Notwithstanding some concern at inconsistencies in the evidence, I accept the evidence of Ms Hettiarachchi that she experienced sharp pain in the right shoulder on the morning of 22 November 2006 while at work. Given her prior carpal tunnel condition it is understandable that any prior shoulder pain was assumed to be related to that condition. It is now seen as likely that there was some shoulder pain from inflammation arising from the progressive micro tears of the tendon fibres. I also accept that the claim was made some 23 days later when the result of the ultrasound showed this separate injury. The critical issue is whether this injury occurred at work on 22 November 2006. Both Mr Patel and Mr Schofield were firm in their views that the final tear of the tendon itself will result in pain immediately and not delayed until inflammation occurs as proposed by Mr Jones. Mr Schofield was particularly firm on an apparent basis of personal experience. I prefer the opinion of these two medical practitioners. Further, on balance, and having regard to the evidence of Ms Hettiarachchi and the clinical notes Dr Rustomjee of 23 November 2006, I am satisfied and so find that the final full thickness tear of the supraspinatus tendon of the right shoulder occurred in the course of employment on 22 November 2006. While the medical evidence demonstrated that the tear was the result of progressive and degenerating weakening of the fibres of the tendon and the final full thickness tear could have occurred at any time, it is clear that, as it happened during the course of employment, it is a compensable injury under the Act.
14. It follows that the decision under review should be set aside and in its stead should be a decision that the applicant suffered an injury being a full thickness tear of the right supraspinatus tendon on 22 November 2006 in the course of employment.
    

I certify that the fourteen (14) preceding paragraphs are a true copy of the reasons for the decision herein of

Mr B H Pascoe, Senior Member

Signed: ...Dianne Eva

Clerk

Dates of Hearing 1 & 2 December 2008, 7 May 2009

Date of Decision 21 May 2009

Counsel for the Applicant Mr Stephen McCredie

Solicitor for the Applicant Ms Alana Goodwin, Arnold Thomas Becker

Counsel for the Respondent Mr John Wallace

Solicitor for the Respondent Ms Cassandra Madden,

Australian Government Solicitor