Comcare v Prater

REASONS FOR JUDGMENT 1 Comcare appeals from a decision of the Administrative Appeals Tribunal (the Tribunal) by which Comcare was held liable for an injury to Ms Prater's shoulder which arose out of and in the course of her employment, on a casual basis, with COMCAR. The appeal turns on a correct understanding of the reasons for the decision of the Tribunal.

The Tribunal Decision 2 The Senior Member set out the relevant background, including Ms Prater's account of the claimed injury which she said occurred on 20 November 2011 after carrying a number of cases for a senior Minister. The Tribunal recorded that Ms Prater did not lodge a formal notification of the injury until 14 August 2012. However, she did complete a driver's report on 20 November 2011 at the end of her shift which stated 'lifting [Minister's] 6 bags in an out of boot I seemed to have caused some injury to my (L) wrist. He did not offer any assistance with lifting the bags'. The Tribunal gave an account of Ms Prater's reasons for not lodging an incident report on that date. 3 The Tribunal then turned to the medical evidence. It referred to the cross-examination of Dr Stubbs, an orthopaedic surgeon. The Tribunal summarised his evidence in the following terms: It was possible but not probable that repetitive activity was the cause of Ms Prater's shoulder problems. That repetitive activity may have been repetitive arm lifting such as the repeated lifting of the heavy boxes in November 2011, and this was the most likely cause in the absence of any other source of the pain. 4 The Tribunal recorded the evidence of Dr Mirpuri, who first saw Ms Prater in February 2012. Dr Mirpuri gave evidence as to Ms Prater's description of an injury to her left shoulder after lifting heavy bags in November 2011 and the fact that she had said that it was not until February that it had started to worry her. Dr Mirpuri said 'it is more likely that the incident in November has caused her shoulder pain'. 5 The Tribunal also recorded the evidence of Dr Ann Harvey, a radiologist who reported on an x-ray taken of Ms Prater's shoulder on 20 February 2012, and a subsequent ultrasound also performed on 20 February 2012, noting a 'mild subarticular sclerosis…at the left sternoclavicular joint', the reason for which was 'unclear'. The Tribunal also recorded a report of an arthogram of Ms Prater's left shoulder performed on 25 July 2012 which detected 'a partial thickness articular surface tear of SST [skin and soft tissue]'. 6 The Tribunal then recorded Ms Prater's evidence in some detail. 7 The Tribunal identified the issues, relevant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) as: Whether Ms Prater's left shoulder injury arose out of or in the course of her employment (s 5A(1)); Whether Comcare is liable to pay compensation to Ms Prater for her injury (s 14); Whether Comcare's liability is negated because Ms Prater did not notify Comcare of her injury 'as soon as practicable' (s 53). 8 The Tribunal accepted the diagnosis that Ms Prater suffered from a partial tear in the supraspinatus tendon and said that 'the issue is what caused that partial tear'. The Tribunal addressed the following: Ms Prater's claim that her injury occurred on the evening of 20 November 2011; Comcare's allegation that the shoulder injury was not sustained while working for the agency on that date, or in the manner alleged, or at all; Her employment with COMCAR and COMCAR's Medical Assessment form, together with the core requirement for lifting bags, including into and out of boots of vehicles as part of her duties; The nature of the senior Minister's bags on 20 November 2011, being between six and eight heavy bags; The lack of clarity in the evidence of the weight of each individual bag; and The history of Ms Prater's complaints; in particular that she did not complain to Dr Mirpuri about pain in her shoulder until 13 February 2012, together with her explanation for that delay. 9 The Tribunal accepted that the weight of the bags was unusual, causing Ms Prater to seek out a trolley to assist with moving them and turned to whether lifting the bags 'could have caused Ms Prater's shoulder injury'. 10 The Tribunal observed at [38] that it needed to be satisfied that there were no other possible causes of the partial tear to Ms Prater's shoulder. In that regard the Tribunal noted: Ms Prater's previous injuries to her left wrist and lower right leg, together generally with her medical history between November 2011 and February 2012 and any complaints; Other possible causes were eliminated because she did not play sport and her duties at the residential care facility at which she worked were administrative and did not involve lifting or other repetitive activities that might affect her left arm and shoulder; Her car, used for driving to and from the residential care facility was automatic and did not involve frequent use of her hand brake; Her activity as 'an Avon lady' in her spare time only required distribution of booklets and ordering of products for customers; not being physically demanding activities; The absence of evidence that Ms Prater injured her shoulder from her activities around horses, which did not include riding; and Her doctor's evidence that he had no knowledge of any 'recent fall' or 'healing fracture'. 11 In that context, in a passage criticised by Comcare, the Tribunal referred to Dr Mirpuri's evidence as follows: He did suggest in evidence that he could not indicate how likely it was that lifting heavy bags could cause such a tear. However, no other explanation has been proffered for the initial injury to Ms Prater's shoulder. 12 I interpolate to observe that that sentence, seen in the context of the Tribunal's examination of the available evidence and the consideration of other possible causes, amounts to a notation that other likely causes that could have arisen from her history had been excluded and, while her doctor could not say how likely it was that lifting heavy bags could cause a tear, no other explanation has been proffered. That, in context, does not relate to the absence of an explanation from Comcare but an absence of an alternative explanation for the injury from the totality of the evidence, which included Ms Prater's evidence and that of her doctor. 13 In the next paragraph, again in the context of determining the most likely cause of the tear, the Tribunal noted that the history of activities during the two and a half months until mid-February 2012 'indicates a form of "immobilisation" of her left arm and shoulder, at least from regular activities which might affect her left shoulder'. The Tribunal then said 'that does not eliminate the possibility that it was the lifting of the bags on 20 November 2011 which initially caused the supraspinatus tear to Ms Prater's left wrist and shoulder'. 14 Again, I note that, in context, that was part of the Tribunal's detailed consideration in answer to the question it posed in [37], being the question whether the lifting of the bags could have caused the shoulder injury. The Tribunal's reasoning process was to consider all other available causes and to note that the alleged reason, being the lifting of the bags in November, could still not be eliminated as a possibility. This was not to misstate the test to be applied to the ultimate conclusion, but was part of the Tribunal's reasoning in seeking to eliminate possible causes that had been raised and noting that, despite evidence and acceptance of the fact that the shoulder had recovered to an extent by 5 February 2012, the history of Ms Prater's activities in that intervening time still did not eliminate the November event as a possible cause. 15 The Tribunal then discussed the evidence suggesting a continuing injury after Ms Prater recommenced working for COMCAR, noting that this suggested that it was the COMCAR driving and not other causes which exacerbated her shoulder problem. The Tribunal then expressed itself satisfied that it was her renewed work as a COMCAR driver which was the cause of the recurrence of pain in her shoulder. In that regard, the Tribunal said that it was 'also significant' that Ms Prater did not consult her doctor until 13 February 2012 when she had recommenced working for COMCAR for five days and had engaged in activities over that time. Her doctor recommended a course of treatment that took place between 13 February 2012 and 3 July 2012, at which time he referred Ms Prater for an arthogram to identify the cause of the continuing shoulder problem. 16 Having set out in detail Ms Prater's history, including her history of employment, external activities and her medical history, in the context of seeking to ascertain the cause of the tear to her shoulder, the Tribunal said at [47]: The Tribunal finds that the lack of any obvious cause for her condition from Ms Prater's administrative position at the residential care centre, her recording of a twinge in her left wrist on 20 November 2011 which she said radiated into her arm and shoulder following Ms Prater's lifting of heavy bags on that occasion, the absence of any other identified causes, suggest that the initial partial tear of Ms Prater's shoulder did arise out of and in the course of her employment. 17 Again, in context, the Tribunal was not casting any blame on Comcare for failing to identify another cause. It looked to the evidence available and considered it in some detail. The Tribunal did not assume that Ms Prater was correct in attributing her injury to the lifting of the Minister's bags. It investigated and considered any other possible cause and concluded that no other activity could have caused the injury. In context, the reference to the absence of another cause was simply the setting out of the logical steps taken by the Tribunal in coming to the conclusion that it did.