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Corrigan and Comcare [2011] AATA 299 (6 May 2011)

Last Updated: 6 May 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 299

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1536

GENERAL ADMINISTRATIVE DIVISION
)

Re
MICHAEL CORRIGAN

Applicant
And
COMCARE

Respondent

DECISION

Tribunal
Mr S. Webb, Member

Date 6 May 2011

Place Canberra

Decision
The decision under review is affirmed.

.......................[sgd].......................
Mr S. Webb, Member

CATCHWORDS

COMPENSATION - shoulder and upper limb injury - incapacity and medical expenses claim - credit - temporary aggravation of previously existing condition - no present liability in relation to injury – decision affirmed


Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5A, 5B, 14, 16, 19


Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26; [2005] 221 CLR 568

Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369

Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626

Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268

Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1

Johnston v Commonwealth [1982] HCA 54; [1982] 150 CLR 331

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

March v E & MH Stramare Pty Ltd [1991] HCA 12; [1991] 171 CLR 506

Martin v Australian Postal Corporation [1999] FCA 655

McAuliffe v Comcare [2002] FCA 769

Mellor v Australian Postal Corporation [2009] FCA 504

Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157


REASONS FOR DECISION


6 May 2011
Mr S. Webb, Member

  1. Michael Corrigan made a compensation claim in respect of an upper right limb and right shoulder injury while undertaking a short-term contract of employment with the Department of Health and Ageing (the Department). The injury was said to be a repetitive strain injury. Comcare accepted the claim and Mr Corrigan was paid compensation. Later, Comcare decided that he was no longer entitled to compensation for incapacity and medical treatment expenses. This decision was affirmed on reconsideration. Mr Corrigan applied for review.
  2. The issues for determination are Mr Corrigan’s entitlements under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), if any, from 7 October 2009. For that purpose it is necessary to determine whether or not Mr Corrigan’s incapacity for work is as a result of his accepted right shoulder and upper limb injury and whether he has obtained or presently requires medical treatment in relation to that injury.
  3. The following background facts are established on the balance of probabilities by the present materials and evidence.
“1. Tendinopathy of the supra and infraspinatus with minimal bursal surface fraying.
2. Mild subacromial bursitis.
3. Minimal degenerative changes involving the acromioclavicular joint.”

(q) On 24 May 2009 Dr Brown adopted Dr Eaton’s diagnosis of “Right sided cervicobrachial neuropathic pain syndrome” that was work-caused and resulted in continuing incapacity for work[16].
(r) On 7 August 2009 Mr Corrigan was examined by Dr David Macauley, a consultant rheumatologist. The Doctor reported “mild capsulitis of the right shoulder” with “no evidence of rotator cuff tear, although there is some minimal fluid in the subacromial bursa” that were “multifactorial and not purely based on his employment”[17].
(s) On 3 September 2009 Jac Cousin, a physiotherapist, reported that “right shoulder and low cervical pain persist”[18].
(t) On 7 October 2009 Comcare determined that Mr Corrigan was not presently suffering from the effects of his compensable condition and he was not, therefore, entitled to compensation under sections 16 and 19 of the SRC Act[19].
(u) On 19 October 2009 Vicki Coghlan, a psychologist, reported her diagnoses of “Pain disorder with Both Psychological Factors and a General Medical Condition” and “Major Depressive Disorder, Recurrent, Moderate severity”[20].
(v) On 3 February 2010 Comcare decided to affirm its earlier determination on reconsideration as Mr Corrigan “no longer suffered an injury for the purpose of section 5A of the (SRC) Act as at 7 October 2009”[21].
  1. Mr Corrigan says that his ongoing condition is the result of his accepted work injury and it is not the result of a pre-existing or degenerative condition. He asserts that he was largely asymptomatic prior to the claimed injury: he experienced a gradual onset of symptoms soon after commencing work at the Department using an unergonomic workstation. In his submission, the symptoms, however diagnosed, have been unremitting and gradually getting worse, even though he ceased employment with the Department in December 2008. Mr Corrigan raises three propositions that, he says, compel a decision in his favour: he suffered an occupational overuse injury in his right upper limb and shoulder that has persisted and is presently operative; or the circumstances of his employment with the Department rendered a previously asymptomatic condition symptomatic, and those symptoms and effects have not remitted or resolved; or the circumstances of his employment with the Department aggravated a previously existing condition, as a result of which previously intermittent symptoms were rendered chronic and those symptoms are persistent.
  2. In either case, Mr Corrigan submits that his employment caused an injury and the injury has had ongoing and present effect in causing ongoing incapacity for work and requiring medical treatment. In support of that proposition, Mr Corrigan relies on diaries he maintained, in which he says he recorded information about his employment and his injury. He adduced evidence from a co-worker, Ms Despina Voudouris, concerning workplace arrangements and employment circumstances in the Department from June 2008. Furthermore, he relies on the evidence of Dr Brown, Dr Eaton and Dr Griffith (a consultant surgeon)[22].
  3. Mr Corrigan says that he has not been able to work since the injury in 2008 and he is prevented from doing many household and other tasks by chronic pain. In his submission, minor injuries he suffered in the course of his Army service many years ago have no bearing on his present condition. Similarly, he asserts that other medical conditions from which he suffers, including type II diabetes and ischaemic heart disease, are not operative factors. That being so, he says that his accepted injury has not resolved and Comcare should not have stopped his compensation payments for incapacity and medical treatment – the decision under review should be set aside and his compensation payments should be restored.
  4. I do not agree – that conclusion is not made out.
  5. Compensation for medical treatment expenses and incapacity for work may be payable under sections 16 and 19 of the SRC Act if the requisite nexus with an injury is established. These sections adopt slightly different forms of words in respect of the necessary connection with injury: “in relation to” in section 16 and “as a result of” in section 19. Nevertheless, these forms of words convey a clear meaning that is well understood in workers compensation law[23]; they refer to a relationship of cause and effect that is less direct or proximate than the term ‘caused by’[24]. It is necessary, therefore, to consider with some particularity the injury that is said to have occurred in compensable circumstances and in relation to which liability has been accepted under section 14 in order to determine whether or not subsequent incapacity and medical treatment is a result of that cause. The definitional provisions of the SRC Act at sections 4, 5A and 5B provide guidance concerning the meaning of ‘ailment’, ‘aggravation’, ‘incapacity for work’, ‘injury’ and ‘disease’.
  6. Before addressing these issues, however, it is necessary to address issues concerning the reliability of Mr Corrigan’s evidence.

CREDIT

  1. It is quite apparent to me that Mr Corrigan either had significant difficulties with his memory or he was reluctant to tell the truth about important aspects of this case. Many were the instances in which he went back upon his own account, adding relevant details or correcting himself in the face of contradictory evidence. I do not intend to list all of the inconsistencies; the following examples will suffice. Mr Corrigan failed to fully disclose his relevant medical history of symptoms and treatment involving his back, neck, shoulders and upper limbs to examining doctors[25]. The reports of Dr Smith, Dr Macauley, Dr Eaton and Dr Griffith, and the conclusions expressed therein, were based on Mr Corrigan’s incomplete account. While aspects of the full history were addressed with witnesses in oral evidence, it is clear enough that Mr Corrigan failed or omitted to provide a full account of his medical history.
  2. When questioned about this during the hearing, Mr Corrigan initially denied obtaining treatment for symptoms similar to those under claim, including acupuncture treatment in or about January 2008 and chiropractic treatment from November 2007. Later, when confronted with compelling evidence, he agreed that he had obtained treatment but passed off these previous issues on the basis that they related to postural matters and psoriasis that were distinct and different from the problems he experienced as a result of his employment. It is very clear, however, that Mr Corrigan identified the symptoms he experienced in employment as “posture related” in his first email on this subject to his supervisor, Maynard Gold[26]. It appears that Dr Eaton formed a similar conclusion. The providers of the chiropractic and acupuncture treatments Mr Corrigan obtained were not called to give evidence. To my mind it is clear enough that Mr Corrigan experienced symptoms that were very similar to those of which he complained in the course of his employment from November 2007 and that he omitted to inform Dr Smith, Dr Macauley, Dr Eaton, Dr Griffith and in all likelihood Dr Brown about this history.
  3. Mr Corrigan gave detailed evidence concerning the procedure he followed when making entries in his “work diary”, but revised and corrected that account on a number of occasions, even to the extent that someone else may have made entries when the diary was left open on his desk when he was not present. He explained that entries were made at the end of each day and he would not go back later and correct or overwrite those entries. But, having carefully examined the diary for 2008, it is quite clear that is exactly what he has done – one simply has to look at the entries in June and July to conclude that the original pencil entry has been rubbed out and a new entry made in ink. Whether or not the content of the original and later entries are the same cannot be determined. It is very clear that Mr Corrigan was less than frank about these matters. To my mind there are very serious doubts about the content and reliability of the diaries Mr Corrigan produced. If, as he asserts, the diary in 2008 was a work diary, there is a great dearth of entries concerning any aspect of his employment other than those that serve his claim. It is clear enough that Mr Corrigan’s evidence concerning the manner in which he made diary entries is not reliable. To my mind little weight can be given to these documents.
  4. Thus, whether because of honest faults with his memory or a deliberate intent to withhold relevant evidence, I am satisfied that Mr Corrigan’s evidence is not reliable. I will proceed cautiously when assessing his evidence and I will not accept his evidence on controversial points without reliable corroboration.

INJURY

  1. As I have said, in order to determine whether or not the nexus between an injury and any claimed incapacity for work and medical treatment expenses is established it is necessary to carefully consider the nature of Mr Corrigan’s claimed injury.
  2. The injury Mr Corrigan claimed was “a repetitive strain injury to right upper limb” affecting his “right shoulder, right upper arm, right wrist and hand” as well as “upper parts of the right and centre of my back”[27]. Mr Corrigan described the onset of this injury in the following terms:
“The pain of the injury builds up over the course of the day whilst I am performing my normal duties (initially it was a week, with Friday afternoon the worst).
I experience pain in my right arm, wrist and hand which radiates up my right arm to the right shoulder then to the right side of the neck and then to the back.” [28]

  1. Comcare noted Dr Brown’s initial diagnosis of “Muscular ligamentous sprain to [R] upper limb and shoulder” and accepted liability for “sprain of shoulder & upper arm (right)(shoulder only)”[29].
  2. There does not appear to have been any particular incident that caused the claimed injury. Mr Corrigan asserts that the symptoms arose gradually in the course of his normal duties using an unergonomic workstation. Whether Mr Corrigan’s previous history of relevant symptomatology was known by Comcare, at the time, is not clear.
  3. As I have said, Mr Corrigan has a prior history of symptoms in his neck, back, shoulders and arms, including on the right side, which he failed to disclose. It appears that he suffered back, neck, shoulder and upper limb symptoms during his Defence service (which came to an end in 2002) and thereafter[30]. In December 2004 Dr Gytis Danta, a neurologist, reported that Mr Corrigan “developed pain over the front of the right upper arm and forearm in November last year [2003] and at the base of the palm on the left... It is due to osteoarthritis”[31]. In 2004 Mr Corrigan was referred for an MRI scan of his cervical spine in respect of his left hand and forearm pain – he was reported to have “Mild cervical spondylosis but with potential bony compromise of the C6 and right C7 nerve roots”[32]. Dr Danta reported that this indicated a C6 nerve root lesion that was treated with a C6 nerve root block, as a result of which “He lost most of his pain”[33].
  4. Even so, it appears that from time to time thereafter Mr Corrigan experienced symptoms in his back, neck, shoulders and arms, including on the right side, in relation to which he obtained treatment from Hawker Chiropractic[34]. No witnesses from Hawker Chiropractic were called to give evidence. The clinical notes of this chiropractic practice establish that in October 2007 Mr Corrigan twisted his back and experienced pain: “P over R Lx + lower T2 area to scapula. Intermittent. Acupuncture eases. OK in am on rising but worsens thru the day”[35]. On 15 November 2007 the clinical notes record “R ant. shoulder ache esp. thru the day when using arm”; subsequent notes on 6 December 2007 record “NTB – shoulder and back seem OK. Pre-Xmas Rv: C/T/L E5 C5/6(R) – T2/3(R), T5/6(O), T8/9, (R)L4/Th(O), RSI, (R) wrist/elbow”. Subsequent clinical notes reveal that Mr Corrigan obtained similar treatment on 21 December 2007, 1 February 2008, 20 March 2008 and 15 May 2008[36]. Dr Brown’s clinical note on 7 March 2008 records “Recent chest pains mainly neck and shoulders sound more MSK [musculoskeletal] than cardiac”[37].
  5. On this evidence it is likely that Mr Corrigan was not entirely free of relevant symptoms in the period prior to commencing employment with the Department. The chiropractic treatment he obtained treatment from Ms McQueen on 15 May 2008 involved “Rx C/T/L E5 C1/2(O), C4/5(R), T2/3(R), T6/7, T8/9, RL4/5fr, RSI”[38]. Even though Ms McQueen noted that he had “Been pretty good – no real issues”[39], this does not imply that Mr Corrigan was symptom-free; on the contrary, it implies that he was not symptom-free and that the symptoms noted were sufficient to require the treatment provided. Even though the clinical notes are codified in part, it is very clear that the symptoms recorded bear remarkable similarities to those about which Mr Corrigan complained in the context of his employment by the Department after June 2008.
  6. This evidence clearly indicates that Mr Corrigan has a prior history of symptoms involving the same areas of his body that were the subject of his compensation claim in 2008. Mr Corrigan either could not recall aspects of this history or he attributed it to postural issues that were distinct from the symptoms he experienced in his employment by the Department and subsequently. His submissions in this regard are far from compelling.
  7. I am reasonably satisfied that Mr Corrigan suffered from musculoskeletal issues involving his mid and upper back, neck, shoulders and upper limbs that were intermittently symptomatic in the weeks and months prior to commencing employment with the Department on 10 June 2008. Furthermore, it is established that he suffered from cervical spondylosis and nerve root involvement in his cervical spine at C6 and C7. It is clear enough on the clinical notes of Ms McQueen in October and November 2007 that these musculoskeletal and neurological issues and the related pain symptomatology in Mr Corrigan’s mid and upper back, neck, shoulders and upper limbs were susceptible to irritation with use. I so find.
  8. Mr Corrigan asserts that he experienced increasing symptoms of pain in his mid and upper back, neck, right shoulder and right upper limb in the course of his normal duties not long after commencing his employment contract with the Department. He asserts that he first experienced symptoms that were sufficient for him to make a diary entry on 25 July 2008[40]. This evidence, however, is not consistent with Mr Corrigan’s written statement, which refers to the onset of “twinges in my right arm and shoulder” in August 2008[41]. Nor is it consistent with the incident report[42], which refers to an incident on 29 September 2008, or the claim form[43], which refers to onset of the claimed injury in August 2008, or with Dr Brown’s medical certificate on 16 October 2008, which refers to “the injury stated as occurring SINCE JUNE 2008”[44]. These inconsistencies may appear to be minor, but they raise serious questions about Mr Corrigan’s evidence concerning the onset of symptoms after the commencement of his employment in June 2008.
  9. Ms McQueen’s clinical notes reveal that Mr Corrigan attended for treatment on 15 May 2008, but he missed a scheduled appointment for further treatment on 14 August 2008 and he did not return for treatment until 30 September 2008. On the present evidence I am not able to determine when the 14 August appointment was made with Ms McQueen. On 5 February 2009 Ms McQueen reported at Mr Corrigan’s request “regarding his presentation at this clinic following a work-place injury last year”[45]. She stated that Mr Corrigan “first presented complaining of right arm, shoulder, neck and upper back pain on 30th September 2008”[46]. Ms McQueen makes no reference in this brief report to any prior history of similar symptoms or related treatment, even though she had been treating Mr Corrigan for very similar symptoms from October 2007. This is perhaps because she was simply responding to the terms of Mr Corrigan’s request. Ms McQueen was not called to give evidence so this issue could not properly be explored. Nevertheless, it is clear enough that Ms McQueen’s report is in reference to Mr Corrigan’s first presentation for treatment after the alleged injury in 2008.
  10. Mr Corrigan consulted Dr Brown on 4 August 2008 “v. distressed re incident at work last week counselled re options needs cert”[47]; but what this clinical note refers to is very far from clear and I was not taken to a medical certificate of that date. Significantly, there is no reference to any symptoms of relevance in this notation. Dr Brown issued a medical certificate on 16 October 2008 which suggests that he examined Mr Corrigan on 10 October 2008 and diagnosed a repetitive strain injury to his right upper limb[48]. On 24 May 2009 Dr Brown reported that “Mr Corrigan was first seen by me regarding his [claimed] condition on 10.10.08”[49], in relation to which there is a corresponding clinical note. In this report Dr Brown did not refer to his earlier clinical note on 2 March 2008 concerning Mr Corrigan’s neck and back symptoms. It is not clear whether or not Mr Corrigan informed Dr Brown that he was obtaining chiropractic treatment from Ms McQueen for similar symptoms from at least October 2007. Dr Brown’s observation that Mr Corrigan had no previous history of relevant symptoms suggests that this did not occur.
  11. On 29 September 2009 Mr Corrigan sent an email to his supervisor, Maynard Gold, in the following terms:
“Maynard,
I am currently experiencing a great deal of discomfort in using my workstation and keyboard/mouse. This is further to what I advised you on Friday 26 Sep 08 in relation to pain in my right arm.
I believe the discomfort I am experiencing (right arm, shoulder, neck and back) is a posture related issue and not cardiac. I have arranged to visit the Chiropractor on 30 Sep 08 at 1315hrs. As using the computer in a normal manner is now extremely uncomfortable and the use of the left hand only is impractical, I intend to go home and will not be in prior to the Chiro’s appointment tomorrow.
Mike C.” [50]

  1. Thus, weighing all of the evidence, I accept as more probable than not that Mr Corrigan experienced discomforting symptoms in his upper back, neck, right shoulder and right upper limb in the course of his employment contract with the Department. I am reasonably satisfied that the symptoms were similar to previous symptoms Mr Corrigan experienced prior to his employment by the Department and that the symptoms he experienced in the course of that employment resulted from previously existing musculoskeletal conditions that were irritated to some extent by Mr Corrigan’s normal activities in employment.
  2. It follows, therefore, that Mr Corrigan’s employment did not render a previously asymptomatic condition symptomatic; that is not consistent with the evidence concerning Mr Corrigan’s prior medical history. Nor is it established that his employment with the Department caused a frank injury to occur; that, too, is not consistent with the previous pattern of symptoms that his medical history establishes were present in the months preceding the commencement of his employment in June 2008. There is no compelling evidence that a pathological change occurred in Mr Corrigan’s back, neck, right shoulder or right upper limb on or about 29 September 2008, and I am reasonably satisfied that there was not. I note that an MRI scan was taken of Mr Corrigan’s right shoulder on 21 May 2009 and that in August 2009 Dr Macauley diagnosed mild capsulitis with no evidence of rotator cuff tear. While the diagnosis of capsulitis is controversial and not supported by other medical evidence, the absence of significant right shoulder pathology is supported by Dr Eaton and Dr Griffith. Unfortunately Dr Macauley was unable to give evidence.
  3. Weighing this evidence it is difficult to determine whether or not the irritation of Mr Corrigan’s musculoskeletal condition on or about 29 September 2008 constitutes an ‘injury’ for the purposes of the SRC Act. Was the irritation simply a function of existing disease, devoid of any contribution by the employment, or was the employment an operative factor, to a significant degree?
  4. It is well established law that pain resulting from activities in employment may be consistent with an injury for the purposes of the SRC Act even though no pathological change takes place[51]. Under the SRC Act the concept of suffering an aggravation injury is not confined to a condition being made worse, but may also include the condition becoming worse if the worsening is significantly contributed to by the employment[52]. An aggravation injury may be temporary in effect, but so long as the injury produces effects in addition to the underlying condition and those additional effects do not come to an end, compensation may be payable[53]; the contrary holds where the effects of the injury cease even though the effects of the underlying condition may persist[54].
  5. To my mind it can be accepted that the irritation of Mr Corrigan’s previously existing condition and the resulting symptoms in his back, neck, right shoulder and right upper limb on or about 29 September 2008 may be consistent with an aggravation for the purposes of the SRC Act. Having regard to the matters set out in section 5B(2) of the SRC Act, I am reasonably satisfied that even though the period of Mr Corrigan’s employment prior to the aggravation on or about 29 September 2008 was short and there was no particular incident that caused the aggravation, he was susceptible and predisposed to irritate the symptoms of his previously existing condition by activity and poor posture, as occurred in October and November 2007 and subsequently. It is conceivable that the arrangement of his particular workstation may have contributed to the aggravation, but that is not established by the present evidence – Mr Corrigan’s previously existing degenerative condition and postural issues prior to the commencement of his employment in June 2008 were productive of similar symptoms to those about which he complained in September 2008. Nevertheless, I am reasonably satisfied that the elevated symptoms Mr Corrigan experienced on or about 29 September 2008 were related to activities he undertook and the work-posture he adopted in his employment. Thus, to the extent of applying salt to a wound[55], I find that these factors significantly contributed to elevate the symptoms Mr Corrigan experienced at that time. The elevation of symptoms in such circumstances is within the meaning of an ‘aggravation’ for the purposes of the SRC Act.
  6. As will appear, however, I am reasonably satisfied that the aggravation was temporary in nature, being an activity-related or posture-related irritation of symptoms that were the product of underlying and on-going degenerative disease that appears to have become worse in October 2007 and which continued thereafter according to its natural course. There is no conclusive evidence that Mr Corrigan’s degenerative disease was accelerated or pathologically changed by his employment. The period in which Mr Corrigan attended his then workplace is confined to the period between 10 June 2008 and 16 October 2008 and on 29 September 2008 he notified his supervisor of posture-related symptoms. As I have said, Mr Corrigan experienced symptoms in his back, neck, right shoulder and right upper limb from October 2007 that were susceptible to irritation by activity and posture, and that is what appears likely to have occurred in his employment.

ENTITLEMENT TO COMPENSATION IN RESPECT OF MEDICAL TREATMENT AND INCAPACITY

  1. If Mr Corrigan’s aggravation injury resulted in incapacity for work or he obtained medical treatment that was reasonable for him to obtain in relation to the injury, he may be entitled to payment of compensation.
  2. Issues of causation should be determined upon a practical commonsense basis[56], with regard to expert evidence and the statutory purposes[57].
  3. Mr Corrigan did not attend work after 16 October 2008 and his employment contract with the Department ceased on 12 December 2008. He was examined by Dr Smith on 10 February 2009. Dr Smith formed the opinion that Mr Corrigan’s symptoms at that time were not related to his previous employment, but were the result of degenerative cervical disease and he was (then) fit to work full-time[58]. This assessment is consistent with the evidence of Dr Macauley who examined Mr Corrigan on 7 August 2009 and I accept it. Dr Macauley reported that Mr Corrigan’s “current condition is multifactorial” and “not related to his employment” – “The natural history of strain of the shoulder, with correct treatment, would be resolution within four to six weeks”[59]. Of course, one significant difficulty arising in relation to the medical evidence is, as I have said, that Mr Corrigan omitted to disclose his full medical history and, as a result, Dr Smith, Dr Macauley, Dr Eaton, Dr Griffith and in all likelihood Dr Brown were not aware of “other predisposition or similar problems in Mr Corrigan’s medical history”[60].
  4. I note the report of Stuart Andrews of Fit To Manage, who conducted an 8-week physical rehabilitation program with Mr Corrigan. On 12 March 2009 Mr Andrews reported:
“Upon commencing the FTM program Mr Corrigan presented with a stooped posture and restricted anterior and posterior muscle group with the dominant anterior muscle groups namely the pectorals, deltoids and biceps pulling his shoulder forward with little to no input (stabilising effect) from the opposing posterior muscle groups... The resultant outcome of Mr Corrigan’s shoulders being constantly pulled forward was to place excessive pressure on the trapezius muscle groups subsequently overloading the cervical spine. This resulted in Mr Corrigan’s upper right arm and shoulder symptoms developing into a chronic condition, which was typically neuromuscular in nature.”[61]

It appears that Mr Andrew’s physical rehabilitation program was an “effective way of stabilising Mr Corrigan’s upper right arm and shoulder symptoms” that resulted in a decrease in such symptoms[62].

  1. In an undated report Effective Australia, a rehabilitation service provider in Mr Corrigan’s case, set out the history of efforts to rehabilitate Mr Corrigan after his injury. It appears that following the cessation of his employment contract with the Department Mr Corrigan “was continuing to undertake a university degree and completed assignments from his home office”. On 22 April 2009 Effective Australia conducted an assessment of Mr Corrigan’s home workstation and recommended a number of changes[63]. It is tolerably clear that Mr Corrigan’s home workstation was not ergonomically suitable and required the purchase of “a new office chair, a footrest, a monitor riser, an adjustable reading lamp, a shortened keyboard and lessons in the use of voice recognition software”[64].
  2. In a report dated 17 May 2009 Dr Eaton reported that “Mr Corrigan said that his condition began to improve earlier this year however there has been a subsequent deterioration in pain and discomfort in the right shoulder which has become even worse... However he said his arm pain is less and right wrist symptoms have settled”[65]. To my mind this is consistent with the resolution of the symptoms attributable to the aggravation injury and the continuation of symptoms of the underlying and previously existing progressive degenerative disease. Dr Eaton’s observations concerning musculoligamentous tension, postural factors and “unremarkable X-rays and ultrasound of the right shoulder” are consistent with Mr Andrew’s assessment, and support this conclusion.
  3. Taken together, the evidence of Dr Smith, Dr Macauley, Dr Eaton and Dr Brown suggests that Mr Corrigan’s aggravation injury resolved in or about February 2009 and that the subsequent increase in cervicobrachial symptoms and any resulting incapacity for work and related medical treatment thereafter is attributable to his previously existing degenerative disease. I so find.
  4. The oral evidence of Dr Griffith is at variance with his written report; it appears that the Doctor changed his mind about the correct diagnosis of Mr Corrigan’s condition in the light of Dr Eaton’s opinion – agreeing that Mr Corrigan’s presentation was consistent with a neuropathic pain syndrome. Despite this change of opinion, Dr Griffith’s evidence is helpful. Dr Griffith examined Mr Corrigan on 22 June 2010 and reported “significant focal tenderness in the left cervical dorsal trapezius, not reflected in the right”[66]; this he confirmed in his oral evidence – “Left sided [regional cervical muscle spasm]... Not reflected on the right... Principally left-sided”[67]. It appears that Dr Griffith was of the opinion that the lack of symmetry contra-indicated the sensitisation of cervical neural structures in the form of a neuropathic pain state (as described by Dr Eaton) and more probably indicated the presence of ”significant cervical spondylosis”[68]. That analysis in June 2010 is consistent with the evidence of Dr Smith and Dr Macauley.
  5. Thus, in sum on this point, I accept the assessment of Dr Smith on 12 February 2009 that Mr Corrigan’s symptoms at that time were solely attributable to his previously existing degenerative disease and not to an injury in his employment by the Department. I so find.
  6. On the evidence of Dr Brown, Mr Corrigan has been unfit for employment from 16 October 2008 as a result of “a repetitive strain injury to his right upper limb” “stated as occurring since June 2008”[69]. As I have said, Dr Brown did not report (or was not fully aware of) any previous history of similar symptoms with those Mr Corrigan claimed were work-caused. Furthermore, Dr Brown’s reference to the onset of symptoms and injury in June 2008 is not consistent with the weight of the reliable evidence. For these reasons Dr Brown’s certificates must be assessed carefully in the light of the expert medical evidence of Dr Smith, Dr Macauley, Dr Eaton and Dr Griffith, as well as the contemporaneous evidence of Mr Andrews and Ms McQueen. I note that on 22 December 2008 Dr Brown noted “Recent exacerbation R shoulder pain”[70], even though at this time Mr Corrigan had not been at work from 16 October 2008 and his employment contract ceased on 12 December 2008. The nature of the exacerbation is not clear. Ms McQueen noted on 6 January 2009 “Getting more restriction in arm usage”[71]. It appears that Mr Corrigan did not seek treatment from Ms McQueen after 15 January 2009.
  7. Dr Brown’s clinical notes on 27 February 2009 suggest that Mr Corrigan was “benefiting a lot from FtoM [Fit To Manage] needs to put knowledge gained into action; still limited on keyboard”[72]. At this time, the evidence of Effective Australia suggests that Mr Corrigan was using an unergonomic keyboard at his home workstation in the course of his university studies. Dr Brown’s clinical notes on 6 March 2009, 7 April 2009, 30 April 2009 and 5 May 2009 make no reference to any incapacity for work as a result of the injury as certified; I note that the clinical note on 31 March 2009 includes the comment “Comcare review no closer to returning to work as a contractor unlikely that someone will pick him up for part time work; needs followup gym program thru ClubLine; MRarthrogram R shoulder to exclude lesion; ?reg G Eaton; Comcare Cert written”[73].
  8. To my mind, this evidence is substantially consistent with and supports the conclusion, on the balance of probabilities, that Mr Corrigan’s aggravation injury abated by 12 February 2009 and thereafter his mid and upper back, neck, shoulder and upper limb symptoms were the result of or in relation to his previously existing degenerative condition that continued to progress, unabated, according to its natural course.
  9. In sum on this point, therefore, it is more likely than not that the effects of Mr Corrigan’s aggravation injury were temporary and resolved by 12 February 2009. It is probable that Mr Corrigan’s subsequent incapacity for work, as certified by Dr Brown, resulted from his previously existing degenerative condition and not the aggravation injury. So, too, it is likely that the medical treatment he obtained after 12 February 2009 was not in relation to the aggravation injury. I so find.
  10. It follows that on 7 October 2009, and from that date to the present, Mr Corrigan is not entitled to payment of compensation for medical treatment under section 16 or incapacity for work under section 19 of the SRC Act in respect of the aggravation injury. That being so his claims are not made out.

DECISION

  1. The decision under review is affirmed.


I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member


Signed: ........................[sgd]..................................................

H. Choi (Associate)


Dates of Hearing 23, 24 February and 21 March 2011

Date of Decision 6 May 2011

Counsel for the Applicant D. Richards

Solicitor for the Applicant Romano Satsia Kordis Legal

Counsel for the Respondent M. Gollan

Solicitor for the Respondent Dibbs Barker


[1] T5; T7 refers.
[2] T17a folio 54 and T4 folio 13 refer.
[3] See Exhibit A10.
[4] T8 folios 22, 24 and 26; Exhibit A1 refers.
[5] T4 folio 13.
[6] T63 folio 134.
[7] T8 folio 27.
[8] T9.
[9] T19.
[10] T25.
[11] See report by Stuart Andrews at T52.
[12] T46.
[13] See Dr Smith’s report to Comcare at T47.
[14] T106a folio 224-225.
[15] T62.
[16] T63.
[17] T84 folio 171-172 and 174.
[18] T92b folio 188.
[19] T98.
[20] T103b folio 217.
[21] T113 folio 237.
[22] Exhibit A2.
[23] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-464; Ilsley v Wattyl Australia Pty Ltd (1997) 75 FCR 1 at 6; McAuliffe v Comcare [2002] FCA 769 at [11]- [12].
[24] Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] HCA 26; [2005] 221 CLR 568, per McHugh J at [38].
[25] See for example T47 folio 111; T84 folios 169 and 172; Exhibit A2, p2; Transcript, 24 February 2011, pp217-218.
[26] Exhibit A10.
[27] T9 folio 32.
[28] T4 folio 13.
[29] T19.
[30] See Exhibit A9, for example.
[31] Reports by Dr Danta, 30 December 2004 and 4 February 2005, Exhibit R2.
[32] Exhibit R1.
[33] Exhibit R2.
[34] Exhibit A4.
[35] Clinical note 23 October 2007, Exhibit A4.
[36] Exhibit A4.
[37] Exhibit A5.
[38] Exhibit A4.
[39] Exhibit A4.
[40] Diary entry, 25 July 2008, Exhibit A8.
[41] Exhibit A6, p1.
[42] T4 folios 11 and 13.
[43] T9 folio 32.
[44] T116 folio 251.
[45] Exhibit A1.
[46] Exhibit A1.
[47] Exhibit A5.
[48] T116 folio 241.
[49] T63 folio 134.
[50] Exhibit A10.
[51] Mellor v Australian Postal Corporation [2009] FCA 504 at [26]; Martin v Australian Postal Corporation [1999] FCA 655 at [23]; Commonwealth of Australia v Beattie [1981] FCA 88; (1981) 35 ALR 369 at 377-378; Federal Broom Company Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 per Kitto J at 632-633.
[52] Johnston v Commonwealth [1982] HCA 54; [1982] 150 CLR 331 at 337-8.
[53] Salisbury v Australian Iron and Steel Ltd (1943) 44 SR (NSW) 157 per Jordan CJ at 162.
[54] Martin v Australian Postal Corporation [1999] FCA 655 at [23]- [28].
[55] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 per Kitto J at 634.
[56] March v E & MH Stramare Pty Ltd [1991] HCA 12; [1991] 171 CLR 506, per Mason CJ at 515, per Deane J at 522-4; Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268 at 277.
[57] Allianz Australia Insurance Limited v GSF Australia Pty Ltd [2005] 221 CLR 568, per Gummow, Hayne and Heydon JJ at [96]-[99].
[58] T47 folio 113-114.
[59] T84 folio 172.
[60] T63 folio 135.
[61] T52 folio 121.
[62] T52 folios 121-122.
[63] T94 folios 196-197.
[64] T94 folio 196.
[65] T106a folios 223-224.
[66] Exhibit A2.
[67] Transcript 24 February 2011, p195.
[68] Transcript 24 February 2011, p194-195.
[69] See medical certificates at T116.
[70] Exhibit A5.
[71] Exhibit A4.
[72] Exhibit A5.
[73] Exhibit A5.

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