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Voogd and Comcare [2011] AATA 699 (10 October 2011)

Last Updated: 11 October 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 699

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/3654

GENERAL ADMINISTRATIVE DIVISION
)

Re
Leigh-Anne Voogd

Applicant
And
Comcare

Respondent

DECISION

Tribunal
Deputy President J W Constance

Date 10 October 2011

Place Melbourne

Decision
The decision under review, being the decision of Comcare made 13 July 2010, denying liability to compensate Ms Voogd in respect of an injury to her left shoulder, is affirmed.

......(sgd J W Constance)..........
Deputy President

CATCHWORDS

COMPENSATION - subacromial bursitis of the shoulder – ailment – whether ailment or aggravation of the ailment contributed to in a material degree by employment- decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 (Cth) (prior to amendments by Act No. 54, 2007) ss 4, 7(4) and 14(1)

REASONS FOR DECISION


10 October 2011
Deputy President J W Constance

INTRODUCTION

  1. Ms Voogd has applied to the Tribunal to review a decision of Comcare which denied liability to compensate her in respect of an injury to her left shoulder. It is not in dispute that Ms Voogd has suffered from bursitis of her left shoulder, at least intermittently.
  2. For the reasons which follow the decision under review will be affirmed.

BACKGROUND

  1. Unless otherwise stated the findings of fact made in these reasons have been made on the basis of the evidence of Ms Voogd. I am satisfied of the facts found on the balance of probabilities.
  2. Ms Voogd was born in 1969.
  3. In May 2003 Ms Voogd commenced full-time employment by Centrelink as a customer service officer. Her duties included keyboard work and reception work.
  4. Ms Voogd says that in about August 2004 she began to experience pain in both shoulders, the pain in her right shoulder being worse than that in her left. She claims that the pain was caused by bursitis in both shoulders, brought about by her reception and keyboard work. Ms Voogd claims also that the condition of her left shoulder has been aggravated by the over-use of her left shoulder by reason of her compensating for the pain in her right shoulder. Alternatively, she claims that her left shoulder condition was caused by its over-use.

LEGISLATION

  1. Under s14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment.
  2. The definition of an injury which is compensable under the Act was changed in respect of injuries suffered after 12 April 2007. For reasons appearing later I have decided that if Ms Voogd suffered a compensable injury it was suffered before 13 April 2007.
  3. The definition of injury[1] applicable when the claimed injury was suffered before 13 April 2007 reads, in part:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, or in the course of, that employment;
.........
  1. The definition of disease[2] applicable at the relevant time was:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.

  1. Ailment is defined in s 4 to mean:
any physical ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
  1. Section 7 of the Act sets out a number of specific provisions relating to diseases. Sub-section 7(4) reads:
For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.

ISSUES FOR DETERMINATION

  1. The following issues arise for determination:
    1. Has Ms Voogd suffered from a relevant ailment?
    2. If so, was that ailment, or an aggravation of the ailment, contributed to in a material degree by Ms Voogd's employment by Centrelink?

FURTHER EVIDENCE AND FINDINGS OF FACT

  1. Ms Voogd has suffered pain in her right shoulder intermittently since she suffered an injury in the early 1990’s.
  2. Progress Notes of the Rumbalara Health Service at which Ms Voogd attended in January 1998 refer to Ms Voogd reporting her right shoulder having been very painful for three nights and that there was crepitus in the shoulder.[3]
  3. Ms Voogd’s duties at Centrelink involved dealing with customers, taking telephone calls, reception work, interviews, processing forms and keyboarding. The reception work was undertaken for four hours per day, four or five days per week, with a 15 minute rest period after two hours. Ms Voogd also did reception relief work every second day for an hour at lunchtime and 20 minutes in the afternoon.
  4. The front section of the reception desk (i.e. the section approached by the customer) at which Ms Voogd worked was about her shoulder-height when standing. Immediately behind the front section and attached to it was a desk area on which Ms Voogd placed the papers on which she worked and on which a computer screen and keyboard were positioned. When working at the reception desk Ms Voogd stood most of the time. At times she sat on a stool, the seat of which was about waist-height.
  5. When working at reception Ms Voogd had to reach forward at or above shoulder height to take documents from customers. She did this once every two to three minutes during each four-hour period of time she spent on reception. If she was seated Ms Voogd had to reach forward and upwards. At times Ms Voogd stood at the desk. If she was standing she was required to reach outwards only.
  6. When not working at reception Ms Voogd spent her time doing administrative work at a desk near to reception. This included keyboard work.
  7. In about August 2004 Ms Voogd began to experience pain in her right shoulder. She says that she experienced pain in her left shoulder also, but it was not as severe as that in her right shoulder. If Ms Voogd was sitting at the left-hand end of the reception desk she used her right hand to pick up documents from the top of the reception desk and her left hand if she was sitting at the right-hand end. Depending on which hand she was using the most the corresponding shoulder ached the most.
  8. In September 2004 Ms Voogd changed to part-time employment, working alternatively four days and three days per week. In January 2005 this was changed to three days each week. Her duties remained the same as when she was working full-time.
  9. On 9 February 2005 Ms Voogd consulted her general practitioner, Dr Furphy. In her clinical notes Dr Furphy recorded “right shoulder pain-strained when working at reception-tender over trapezius”. [4] There is no record of Ms Voogd complaining of left shoulder pain on this occasion.
  10. Ms Voogd was on leave from her work from 21 February 2005 until 28 March 2005, a period of 5 weeks.
  11. By 5 August 2005 Ms Voogd’s right shoulder was causing her considerable pain (more than the left) so she consulted her general practitioner, Dr Leslie. Ms Voogd gave evidence that she complained to the doctor of pain in both shoulders but that the main problem was with her right shoulder. Dr Leslie prescribed medication which Ms Voogd said relieved the pain in both shoulders.
  12. Dr Leslie’s clinical note of the consultation on 5 August 2005 reads, in part:
long history of right shoulder pain
... pain getting worse
receptionist, computer work, making pain work (sic)
... painful 24 hrs daily
worse when using it this much ... [5]

There is no reference in Dr Leslie’s notes to Ms Voogd's having informed him that she was suffering pain in her left shoulder until an entry in relation to a consultation on 3 January 2006.

  1. From about July/August 2005 Ms Voogd reduced substantially her domestic and leisure activities by reason of the pain she was suffering in her right shoulder. At the same time she ceased grooming and lifting large cats which she bred and entered in Cat Shows.
  2. On 10 August 2005 Ms Voogd was assessed by Dr Trifiletti, Occupational Physician, at the request of Centrelink. Ms Voogd was referred to Dr Trifiletti for assessment of her medical fitness for employment.
  3. On 24 August 2005[6] Dr Trifiletti reported in relation to the right shoulder condition as follows:
She states that she is right hand dominant and that approximately 10 years ago had a series of falls on the right shoulder which resulted in a fracture at the distal clavicle.
She states she was advised she had “fluid in the joint” and has had treatment with repeated Cortisone injections within the joint; however this has not resulted in any improvement.
She states she is due to attend an orthopaedic surgeon in the near future, as there is some discussion about her undertaking surgery in the shoulder joint. She states that forward reach and elevation such as when reaching for documents at the reception desk and photocopying, faxing documents for customers is difficult for her, as she experiences tenderness over the joint.

There is no reference in this report to any complaint by Ms Voogd in relation to her left shoulder.

  1. On 19 August 2005 a work assessment of Ms Voogd was carried out by Mr Iacovino, Occupational Rehabilitation Consultant. This assessment was done at the request of Centrelink. In his report of 2 September 2005[7] Mr Iacovino deals in detail with Ms Voogd’s right shoulder condition. He reported that Ms Voogd said that “she has had a history of right shoulder pain since 1994.” There is no mention in this report of Ms Voogd having told Mr Iacovino of symptoms in her left shoulder.
  2. In September 2005 Centrelink carried out an assessment of the station at which Ms Voogd worked when she was not doing reception duties. As a result, Ms Voogd’s keyboard was altered, she was provided with a telephone headset and the heights of her desk and chair were adjusted.
  3. On 6 October 2005 Ms Voogd completed a claim for compensation with Comcare. This claim was for an injury to her right shoulder which she claimed was caused by her reception and key-board work.[8] In response to a question as to the parts of her body most affected by the injury she responded “right shoulder”. When she gave evidence Ms Voogd said that it was her mistake that she did not make reference to the pain in her left shoulder. She said also that shortly after she completed the form she was told by her team leader that she could add another claim at a later time.
  4. On the same form Ms Voogd also answered that she had not had similar symptoms or injury, work-related or not. She conceded that, in view of her claimed symptoms in her left shoulder, this answer was false.
  5. Further, in answer to questions by Counsel for Comcare Ms Voogd said that she had fractured both clavicles when she was about seven years old, but that there were no ongoing effects from these injuries. She said also that she had fallen and injured her right shoulder when she was in her early twenties.
  6. On 19 October 2005 Ms Voogd consulted Mr Critchley, Orthopaedic Surgeon, on referral by Dr Leslie. Mr Critchley reports that at the time Ms Voogd was complaining of pain in the right shoulder.[9]
  7. On 9 November 2005 comparative x-rays were taken of Ms Voogd’s clavicles to assess an apparent drop in her right shoulder. It was reported that “Frontal radiograph of both clavicles with up-tilt left and right sided images performed. There is no acute or healing clavicle fracture identified, particularly on the right. The AC joint appears symmetric bilaterally. No evidence of significant non-union. The sternoclavicular articulation appears symmetric.” [10]
  8. Mr Critchley reviewed Ms Voogd on the same day. He had the x-ray films and report available to him at the time. His diagnosis was subacromial bursitis in the right shoulder. He injected the right shoulder. Mr Critchley does not refer to Ms Voogd's complaining of pain in her left shoulder at this time.[11]
  9. On 3 January 2006 Ms Voogd consulted Dr Leslie. She says that on this occasion she complained to him of suffering pain in both shoulders and that the pain in her left shoulder had worsened to the extent that it necessitated this attendance and specific complaint.
  10. Dr Leslie’s note of this consultation reads, in part:
Both shoulders now very painful
not sleeping
awaiting surgery on right shoulder
left shoulder also very painful
? as doing activity w left shoulder
usual activities
no past problems with left shoulder, except fractured clavicle. [12]
  1. On the same day an ultrasound was taken of Ms Voogd’s left shoulder. The relevant part of the report read:
All components of the rotator cuff tendinous complex are intact and normal.
There are no tears or peritendinous fluid collections.
The long head of biceps tendon is normal.
The subacromial bursa is not thickened.
Dynamic imaging demonstrates no impingement.
CONCLUSION: NORMAL STUDY [13]
  1. On 3 January 2006 Dr Leslie issued a certificate that Ms Voogd was unfit for any duties on that day.[14] He certified that Ms Voogd was suffering “rotator cuff tendonitis both shoulders ...... left shoulder aggravated due to decreased function of right shoulder.” It should be noted that the certificate is dated 3 January 2005, but I am satisfied that this date was an error. The document has a stamp recording that it was received by Comcare on 17 January 2006.
  2. In February 2006 Ms Voogd underwent surgery on her right shoulder. She was off work from 6 February 2006 until 10 April 2006 recuperating from this surgery. When she returned to work she did not perform reception duties at the front desk, nor did she use a keyboard for a period of four weeks. She worked for three weeks on restricted hours (approximately 13 hours per week) and then she was absent from work for a further three weeks from 19 April 2006 until 1 May 2006.
  3. Ms Voogd gave evidence that from the time of her return to work in mid-2006 she experienced ongoing pain in both shoulders. She says that she spoke to her manager, Ms Lucarelli, and advised her of this.
  4. Ms Voogd took recreation leave of four weeks from 29 June 2006 until 17 July 2006. On her return she worked for five weeks on restricted hours, then was absent for one week, followed by two half days work in the week commencing 28 August 2006. From about August/September 2006 Ms Voogd did not perform any duties at the reception desk.[15]
  5. Ms Voogd was on leave from the end of August 2006 until 12 March 2007.
  6. On 5 October 2006 Ms Voogd was assessed by Professor Hart, Orthopaedic Surgeon, in relation to her right shoulder condition.[16] Ms Voogd did not inform Professor Hart that she was suffering pain in her left shoulder.[17]
  7. On 12 December 2006 Mr Critchley performed an open subacromial decompression of Ms Voogd's left shoulder.[18]
  8. From 12 March 2007 until 20 March 2007 she attended work for very limited hours. During this time Ms Voogd was required to do some keyboard work as well as other tasks. She continued to be seated at an ordinary desk.
  9. From 21 March 2007 until 13 August 2007 Ms Voogd was on leave. She then returned to work for four weeks, averaging work time of 5.65 hours per week.
  10. On 16 May 2007 Ms Voogd was again assessed by Dr Trifiletti, Occupational Physician. On this occasion the referral was to assess Ms Voogd’s suitability to undertake a rehabilitation program. Ms Voogd says that she complained to Dr Trifiletti of pain in her right shoulder; she cannot recall if she complained of pain in her left shoulder. In a report of 4 June 2007 [19] Dr Trifiletti states that Ms Voogd reported limited range of movement in the right shoulder. There is no reference in the report to any complaint by Ms Voogd in relation to her left shoulder. Dr Trifiletti records measurement of the range of movement in both shoulders. All ranges of movement of the left shoulder are recorded as normal.
  11. Ms Voogd was assessed again by Professor Hart on 29 August 2007. On this occasion Ms Voogd did not inform Professor Hart that she was suffering pain in her left shoulder.[20]
  12. From 19 September 2007 until 14 November 2007 Ms Voogd was on leave. Following this she worked for 7.92 hours in the week commencing 12 November 2007 and 14.5 hours in the week commencing 26 November 2007. From 1 December 2007 until her resignation on 21 July 2008, Ms Voogd was on leave.[21]
  13. On 13 March 2008 Ms Voogd was interviewed by Ms Wallace, psychologist. This interview was arranged by Centrelink as part of the rehabilitation process. Ms Wallace reported:
Leigh said the pain is now also increasingly evident in her other shoulder. I clarified with Leigh that she had an injury in her right shoulder and that she was now experiencing pain in the left shoulder. Leigh said this was so. [22]
  1. Professor Hart re-assessed Ms Voogd on 10 April 2008. She did not advise Professor Hart that she was suffering pain in her left shoulder.[23]
  2. On 21 May 2008 Mr Critchley reported that he had performed a formal examination of the range of movement of both Ms Voogd's shoulders. In relation to the left shoulder he reported:
  3. The normal range of shoulder movement is:
  1. Ms Voogd resigned in July 2008. In her letter of resignation Ms Voogd stated that she had “ongoing issues with my shoulder; I now have bursitis in both my hips as well as my left shoulder ...” [26]
  2. Ms Voogd says that she mentioned the pain in her left shoulder to Mr Critchley from the time she first consulted him in 2005. She says also that from time to time thereafter she told him she had pain in her left shoulder. When he gave evidence Mr Critchley said that it was possible that Ms Voogd had mentioned having pain in her left shoulder and that he had not recorded it. However in crossexamination he said that if she had told him that she suffered left shoulder pain, but to a lesser extent than in her right shoulder, he would have recorded “similar, but lesser, pain on the left side.” Mr Critchley impressed me as a careful historian and I am satisfied that it is unlikely that he failed to record complaints of left shoulder pain made to him by Ms Voogd.
  3. In May 2009, on two occasions Ms Voogd fell down stairs in her home. The falls caused her to suffer increased pain in her shoulders for several weeks, after which the level of pain returned to much the same level as it was prior to the fall.
  4. On 11 June 2009 Ms Voogd consulted Mr Critchley. Her previous consultation was in July 2008. She was reviewed by Mr Critchley on 29 June 2009. On 22 June 2010 Mr Critchley reported in part:
I did not see Ms Voogd again until 11 June 2009. She reported at that time she was still having pain in her shoulders, and she had a fall four weeks previously on her right shoulder which had exacerbated the problem. ...... I saw her on 29 June 2009 ...... She also at that time developed similar symptom pattern, and similar pain in the left shoulder. She described the onset of this pain as being due to having to use her left shoulder to compensate for the loss of function of her right arm. [27]
  1. On 15 June 2009 an ultrasound was performed on both shoulders. In relation to the left shoulder it was reported:
Rotator cuff is intact and normal; in appearance. Subacromial subdeltoid bursa is thickened with bursal bunching at coraco-acromial ligament upon dynamic assessment of abduction.
CONCLUSION: ...
LEFT SHOULDER SUBACROMIAL SUBDELTOID BURSITIS. [28]
  1. Between July 2009 and April 2010 Mr Critchley performed three procedures on Ms Voogd's left shoulder. These procedures included an arthroscopic subacromial decompression of the left shoulder carried out on 13 August 2009. Mr Critchley reported that there was considerable bursal hypertrophy which was extensively resected.[29]
  2. On 15 August 2009 an x-ray of Ms Voogd's left shoulder was taken. The report stated in part that “the subacromial space is not significantly narrowed and no rotator cuff tendon calcification is seen. COMMENT: NO RELEVANT ABNORMALITY.” [30]
  3. A MRI scan was performed on Ms Voogd's left shoulder on 21 April 2011. The relevant part of the report reads:
The outer surface of the acromion appears to have been resected. No evidence of rotator cuff impingement or subacromial bursitis.
Conclusion: No evidence of rotator cuff tear or subacromial bursitis. Note is made of previous subacromial decompression.[31]
  1. Ms Voogd continues to take medication to relieve the pain in both shoulders. Activities such as sweeping the floor, peeling vegetables and lifting cause the pain to worsen.

DETERMINATION OF THE ISSUES
Has Ms Voogd suffered from an ailment?

  1. Mr Critchley, Ms Voogd’s treating surgeon, gave evidence. In his opinion Ms Voogd has bilateral subacromial bursitis and impingement syndrome.[32]
  2. Mr Proper, Orthopaedic Surgeon, examined Ms Voogd in July 2011 at the request of her general practitioner. He gave evidence that in his opinion Ms Voogd has left shoulder bursitis.[33]
  3. Professor Hart examined Ms Voogd on behalf of Comcare in March 2010. He gave evidence. In his report of 16 March 2010[34] Professor Hart expressed the opinion that the ultrasound taken on 15 June 2009 showed that, at that time, Ms Voogd had subacromial bursitis in her left shoulder.
  4. Mr Jones, Orthopaedic Surgeon, assessed Ms Voogd on behalf of Comcare in April 2011 and gave evidence. He agreed with Mr Critchley’s diagnosis of subacromial bursitis in accordance with the ultrasound findings. [35]
  5. On the basis of the opinions I have referred to I am satisfied that Ms Voogd has suffered an ailment, namely subacromial bursitis, which is a disorder of her left shoulder.

When did Ms Voogd sustain the condition of subacromial bursitis of her left shoulder?

  1. Since the amendment of the definitions of disease and injury in April 2007, the wording of s.7(4) presents some difficulty in its interpretation. The subsection provides the means of determining when an injury, being a disease, was sustained by an employee. This is on the basis that a determination has been made that the employee has suffered an injury within the meaning of the Act. However since the amendment, it is necessary to determine the time of the claimed injury to decide which of the definitions of injury is to be applied. This becomes a circular argument.
  2. To make the definitions workable it is necessary to apply s.7(4) to determine when the ailment (ie. the left shoulder bursitis) was suffered so that the appropriate definitions of disease and injury can be applied.
  3. I am satisfied that Ms Voogd complained to Dr Leslie of pain her left shoulder on 3 January 2006. I am satisfied further that at this time Ms Voogd was seeking medical treatment for the condition subsequently diagnosed as subacromial bursitis. However on the evidence before me I am satisfied that she did not seek medical treatment for the condition until she consulted Dr Leslie in January 2006.
  4. I am not satisfied that Ms Voogd complained of pain in her left shoulder to anyone prior to her consultation with Dr Leslie on 3 January 2006. In reaching this conclusion I have taken into account the following:
  5. This evidence outweighs the evidence of Ms Voogd that she suffered pain in her left shoulder about August 2004 and that she complained of this to Dr Leslie in August 2005. In view of the time which elapsed before Ms Voogd gave evidence in this application it may be that she is mistaken in her recollection.
  6. It was put by Counsel for Ms Voogd that I should draw an inference adverse to Comcare by reason of Ms Lucarelli not being called to give evidence. Ms Voogd gave evidence that she told Ms Lucarelli that she was suffering pain in her left shoulder at the time she prepared the claim form in respect of her right shoulder. As this allegation was only raised at the hearing I am not prepared to draw any such inference.
  7. On the basis of the evidence to which I have referred I am satisfied that on 3 January 2006 Ms Voogd sustained an ailment within the meaning of the Act.

Was the ailment, or an aggravation of the ailment, contributed to in a material degree by Ms Voogd’s employment?

  1. In Comcare v Sahu-Khan[36] the Federal Court considered the definition of disease in s.4 of the Act. The Court said:
Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) “in a material degree” requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (“the threshold evaluation”);
(iii) whether this will be so in a given case will be a matter of fact and degree.[37]

Dr Furphy, General Practitioner

  1. Dr Furphy was Ms Voogd's general practitioner during 2005. At this time Dr Furphy practised in the Murchison Medical Clinic with Dr Leslie.
  2. Dr Furphy gave evidence and provided reports dated 23 June 2010 [38] and 10 January 2011.[39]
  3. In her report of 10 January 2011 Dr Furphy stated:
Leigh-Anne sustained injury to her right shoulder related to repetitive work tasks involving reaching forward and undertaking computer tasks. She developed a similar condition in her left shoulder prior to August 2009. Leanne [sic] was not seen at this practice between July 2008 and August 2009 and records suggest development of worsening left shoulder problems during this time. It is reasonable to assume that compensatory increase in use of her left arm was a partial contributor to the development of problems in her left shoulder. To my knowledge, Leigh-Anne was not working for Centrelink during that period, so I am unable to provide comment on particular activities that might have led to stress symptoms in her left shoulder during the period when left shoulder symptoms became significant.
...
It is reasonable to expect that chronic pain and limitation of movement in LeighAnne’s right shoulder led to compensatory increased use of the left shoulder, which may have partially contributed to development of a similar shoulder condition in her left shoulder. [underlining added]
  1. In my view, when she gave evidence, Dr Furphy did not provide convincing reasons for reaching the opinion she expressed.

Mr Critchley. Orthopaedic Surgeon

  1. In the opinion of Mr Critchley, Ms Voogd had a minor form of subacromial bursitis in her left shoulder prior to her first consultation with him in October 2005. He is of the view that her symptoms “had been gradually increasing over the course of the preceding year or two during her employment, but there was no specific incident related to the development of this condition. He suspected that the nature of her work involving keyboard operating and using a computer mouse had exacerbated this problem, but it is unlikely to have been a major exacerbating problem and he thought that the development of her symptoms was within a background of some workplace conflict.” [40]
  2. When he gave evidence Mr Critchley said that the result of the ultrasound in January 2006 was consistent with the left shoulder condition being aggravated by Ms Voogd’s using her left arm more as a result of the problem with her right shoulder. He was of the opinion that the reaching movement at the reception desk was part of a movement pattern that would contribute to the problem. He did not consider that the falls in which Ms Voogd was involved would have had any effect on her left shoulder condition, other than possibly causing an aggravation in the short term.
  3. Mr Critchley also expressed the opinion that if Ms Voogd repeatedly reached with her arms above her head it would be a significant factor in the development of her shoulder condition. However he did not know how much time Ms Voogd spent on reception and he was not aware of the significance of this work until he gave evidence. Further Mr Critchley appears to have based his opinion on the history of complaints of shoulder pain given by Ms Voogd. I am not satisfied this was an accurate history.

Mr Proper, Orthopaedic Surgeon

  1. In his report of 21 July 2011 Mr Proper stated the following opinion:
I think Leigh-Anne has significant problems with both shoulders. Although it is difficult to be sure about the precipitating events in either shoulder, she does state that she had pain in the left shoulder at the same time as having the initial pain in her right shoulder and that the pain in the left shoulder was brought on by the same activities as the pain in the right. The fact that she had similar findings on ultrasound in the left and right shoulders within the initial 12 month period does give credence to her story. I therefore think that her left shoulder bursitis almost certainly occurred at the same time as the right, and was exacerbated when she attempted to use the left shoulder more than the right.
Unfortunately since then it appears as though she develop capsulitis in both shoulders following her surgeries and that it is this significantly restricted range of motion in both shoulders that is now giving her the biggest trouble. The pain that she currently experiences through the trapezius muscle was almost certainly related to increased scapular movements required to produce elevation with the stiff glenohumeral joint. I suspect she is still in the fibrotic stage of the capsulitis time course.
Leigh-Anne is not particularly well motivated to improve currently. Her work prospects are poor and she is desperately seeking compensation from Comcare regarding her left shoulder. I cannot see her being motivated enough to improve either shoulder until the court cases have finished. However, I did have a rather prolonged discussion with Leigh-Anne and her daughter about her motivations. Whilst it would be a reasonably simple procedure to perform an arthroscopic release of both shoulders with a good chance of obtaining normal range of motion on the table, I do not think that this will be successful surgery in the long term until LeighAnne becomes more focused on achieving normality in the shoulders. This would require her to set herself goals that can be broken down into secondary goals that may be more achievable in the short term. I would certainly think that she will need extra motivation to be able to become generally fit and healthy, to restore her weight to an acceptable level, to attend to her poor posture and poor scapular positioning, and finally to improve the range of motion and function in both shoulders.
Whilst I cannot see this happening until her Comcare claim is resolved, I would certainly have to say that I would give her the benefit of the doubt and strongly suspect that her left shoulder trouble did indeed begin at work in a similar fashion to her right.
  1. Mr Proper confirmed his opinion when he gave evidence. He had viewed single snapshots from the ultrasound taken in January of 2006 and was of the opinion that they showed a thickening of the bursa in the left shoulder. He did not agree that the radiologist was in a better position to make a diagnosis that he was.
  2. In forming his opinion Mr Proper took into account that Ms Voogd stated that she had pain in her left shoulder at the same time she experienced pain in her right shoulder. For the reasons I have stated I am not satisfied that this is an accurate statement.

Professor Hart, Orthopaedic Surgeon

  1. In the opinion of Professor Hart it was unlikely that Ms Voogd’s left shoulder condition was contributed to by her employment. In forming this opinion he took into account that:
  1. Professor Hart was of the view that investigation by ultrasound was a dynamic study, depending upon the experience of the operator and the co-operation of the patient. In his view the ultrasound was less reliable than an MRI in diagnosing the shoulder condition.
  2. In assessing Professor Hart’s opinion I have noted that Dr Leslie recorded a complaint that both shoulders were “very painful” on 3 January 2006.

Mr Jones, Orthopaedic Surgeon

  1. Mr Jones is of the opinion that Ms Voogd’s left shoulder condition was not caused or aggravated by her employment, either the keyboarding or reaching for documents as described; in his opinion Ms Voogd’s underlying condition is constitutional.[42] In his view shoulder pathology is extremely common and becomes more common with ageing.[43]
  2. Further, it is the opinion of Mr Jones that the shoulder problem was not due to over-use of the left arm consequent upon the injury to the right shoulder. He said that shoulder symptoms are common in Ms Voogd’s age group and that the concept of over-use is not supported by orthopaedic surgeons.[44]
  3. Mr Jones gave evidence that, in his opinion, viewing of static film taken on an ultrasound is not an appropriate means of interpreting the results.

Consideration

  1. Having evaluated all of the factors which may have contributed to the ailment suffered by Ms Voogd I am not satisfied that her employment by Centrelink contributed to the suffering of that ailment. Alternatively, even if I was satisfied that Ms Voogd's employment did contribute to her condition, on the evidence before me I could not be satisfied that the contribution was in a material degree.
  2. I have considered the evidence as to the factual basis on which the various opinions of the medical experts are based. I am not satisfied that Ms Voogd was experiencing serious problems with her left shoulder until about the time she resigned from Centrelink in July 2008. I am satisfied that, apart from the complaint to Dr Leslie in January 2006, she did not complain of suffering left shoulder pain to any of the health professionals whom she consulted or who assessed her until she was interviewed by Ms Wallace in March 2008. There was no such complaint to:
  3. I also take into account that Ms Voogd did not refer to any problems with her left shoulder when she made the claim for compensation for an injury to her right shoulder in October 2005.
  4. I am satisfied also that Ms Voogd has suffered intermittent pain in her right shoulder since about 1990. This finding is based on the evidence given by Ms Voogd.[45] I accept also the evidence of Mr Critchley that when he took a history from Ms Voogd in October 2005 she told him that she had increasing shoulder pain for a number of years which he understood to be more than three years. This would put the onset of increasing right shoulder pain before Ms Voogd commenced employment by Centrelink.
  5. I take into account that from about July 2005 Ms Voogd substantially reduced her domestic and cat-handling duties. Also from September 2005 she ceased the reception duties which had necessitated the repetitive reaching upward and outward. From February 2006 Ms Voogd worked for only short periods for reduced hours and between September 2006 and July 2008 she worked for very limited hours over a total period of only eight weeks.
  6. The expert opinion I have to consider varies. All of the specialists who have given evidence are well qualified and experienced.
  7. Although Mr Critchley is of the opinion that Ms Voogd had bursitis and impingement syndrome in her left shoulder by October 2005, he says this opinion is based on the history. However Mr Critchley was unaware of the history of Ms Voogd’s reception work until he gave evidence and I am not satisfied that he was fully informed of the hours Ms Voogd had worked at the time he formed this opinion.
  8. I have taken into account also that Mr Critchley said in evidence that in his opinion Ms Voogd's condition was a result of the cumulative effect of constitutional factors and work.[46] Mr Critchley said that he had the impression that Ms Voogd had received a non-sympathetic response on behalf of her employer, however he was uncertain as to the nature of this response. In his opinion there were nonphysiological factors in the development of Ms Voogd's condition.[47]
  9. In assessing the weight to be given to Mr Proper’s opinion I have taken into account his reliance on his own interpretation of some, but not all, of the ultrasound material obtained in January 2006. Mr Proper has interpreted the material differently to the radiologist who conducted the ultrasound and saw all of the pictures in real time. I have taken into account also that opinions vary on the reliability of ultrasound material.
  10. Having considered the opinions of Professor Hart and Mr Jones and comparing them with those of Mr Critchley, Mr Proper and Dr Furphy, the opinions of Professor Hart and Mr Jones raise such doubt in my mind as to the claim made by Ms Voogd that I cannot be satisfied on the balance of probabilities that her employment made any contribution to her ailment, whether directly, or by way of aggravation, or as a result of Ms Voogd’s over-use of her left shoulder. I found the evidence of Professor Hart to be persuasive and his opinions to be clearly stated. However it is not necessary that I find which of the opinions of the various medical witnesses is preferable.
  11. I find further support for the conclusion I have reached in the evidence that Ms Voogd suffered intermittent pain in her right shoulder from about 1990 onwards. This was long before she commenced employment by Centrelink. Further, apart from her complaint of left shoulder pain in January 2006, Ms Voogd did not make a complaint of significant pain in her left shoulder until she was assessed by Ms Wallace in March 2008. Ms Voogd ceased to perform the duties requiring her to reach outward and upward in September 2005, approximately 2 ½ years previously. Mr Critchley gave evidence that in his opinion the movement involved in reaching outward and upward was more likely than keyboarding to cause bursitis. Further, Ms Voogd said that she substantially reduced her domestic and cat-handling activities from July/August 2005. This suggests that it is less likely that over-use was a cause of her left shoulder condition. All of the above considerations raise doubt as to the contribution of Ms Voogd's work at Centrelink and support the view that the pain she has experienced may be a result of degeneration or activity outside the workplace.
  12. In considering the evidence in this application I have taken into account that Ms Voogd has suffered pain in both shoulders. The evidence suggests that the condition of each shoulder is the same. For this reason I have taken into account that Ms Voogd experienced pain in her right shoulder before working at Centrelink. I have not taken into account that Comcare has accepted liability for the right shoulder condition. The question of liability for the condition of the left shoulder is to be decided upon the evidence before me.
  13. I am satisfied that at times Ms Voogd has suffered from bursitis in her left shoulder. However I note that at times she does not appear to have been suffering this condition. After Mr Critchley performed the subacromial decompression of the left shoulder in December 2006, Dr Trifiletti recorded normal ranges of movement in the shoulder. After further decompression by Mr Critchley in August 2009, a MRI of the shoulder showed no evidence of subacromial bursitis. As Ms Voogd has given evidence of continuing and ongoing left shoulder pain, this suggests that there may be an unidentified underlying cause of this pain other than bursitis. This supports the views expressed by Professor Hart and Mr Jones.
  14. Alternatively, even if there was evidence to justify a conclusion on the balance of probabilities that there was some contribution by Ms Voogd’s employment, for the reasons already stated there is insufficient evidence to enable me to be satisfied of the extent of the contribution and, in particular, that it was a material contribution.

CONCLUSION

  1. The decision under review, being the decision of Comcare made 13 July 2010, denying liability to compensate Ms Voogd in respect of an injury to her left shoulder, will be affirmed.

I certify that the 108 preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President J W Constance

Signed: .....(sgd K Peterson).................

K. Peterson, Associate

Dates of Hearing 3, 4 and 5 August 2011

Date of Decision 10 October 2011

Counsel for the Applicant Mr D Churilov

Solicitor for the Applicant Ms S Ng, Victorian Compensation Lawyers

Counsel for the Respondent Mr R Seit

Solicitor for the Respondent Ms N Kelidis, Thomsons Lawyers

[1] S 4 of Act prior to amendment by Act No. 54, 2007.
[2] S 4 of Act prior to amendment by Act No. 54, 2007.
[3] Exhibit R3.
[4] Exhibit A17.
[5] ExhibitR4.
[6] ExhibitR24.
[7] Exhibit R1.
[8] Exhibit R2.
[9] Exhibit A34.
[10] Exhibit A12.
[11] Exhibit A34.
[12] Exhibit R5.
[13] Exhibit A13.
[14] Exhibit A38.
[15] Transcript 3.8.11 pp 41/42
[16] Exhibit R14.
[17] Transcript 7.8.11.
[18] Exhibit A39.
[19] Exhibit R6.
[20] Transcript 7.8.11.
[21] These figures as to periods of work are taken from exhibits R11 and R12.
[22] Exhibit R7.
[23] Transcript 7.8.11.
[24] Exhibit R8.
[25] Ex.R6.
[26] Exhibit A1.
[27] Exhibit A34.
[28] Exhibit A4.
[29] Exhibit A19.
[30] Exhibit A18.
[31] Exhibit R20.
[32] Exhibit A34.
[33] Exhibit A14.
[34] Exhibit R16.
[35] Exhibit R13.
[36] (2006-07) 156 FCR 536
[37] At pp.542-543.
[38] Exhibit A2.
[39] Exhibit A3.
[40] Exhibit A34.
[41] Exhibit R16.
[42] Exhibit R13.
[43] Transcript 4.8.11.
[44] Exhibit R13.
[45] Transcript 3.8.11.
[46] Transcript 4.8.11.
[47] Transcript 4.8.11.

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