//
austlii:cth/ARTA/2025/2501
General information, not legal advice.
ARTA
2025-11-24
Original judgment source is linked above.
(a) Whether Mr Sabani suffered from an 'ailment' or an 'aggravation of an ailment' as defined in ss 4(1), s 5A and 5B of the SRC Act.
(b) If so, whether the ailment (or aggravation of an ailment) was 'contributed to, to a significant degree' by his employment with Linfox and therefore a 'disease' within the meaning of the SRC Act.
(1) In this Act, unless the contrary intention appears:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
(9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
(b) an injury (other than a disease) suffered by an employee, that is 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), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment.
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
significant degree means a degree that is substantially more than material.
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self‑inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self‑inflicted, unless the injury results in death, or serious and permanent impairment.
(a) Mr Sabani is 49 years of age and commenced employment with Linfox on 7 September 2020.
(b) On 20 April 2023, an ultrasound of Mr Sabani's left shoulder recorded:[4]
- Full thickness tear of the supraspinatus tendon.
- Mild infraspinatus tendinopathy without evidence of a tear.
- Marked thickening and moderate to large effusion of the subacromial-subdeltoid bursa.
(c) On 27 April 2023, a Linfox 'injury report' in respect to Mr Sabani recorded that 'Driver had an ultrasound out of work showing rotator calf tear. Driver then presented the findings to his supervisor'.[5]
(d) On 27 April 2023, a Linfox 'symptomatic report' in respect to Mr Sabani recorded that he had 'Periodic pain in shoulder' and the mechanism of the injury was 'Other or unknown'.[6]
(e) On 23 May 2023, Mr Sabani made a claim for 'bilateral shoulder condition' to Linfox (the Claim), where he says in answer to the question, 'What happened and how were you injured', that 'Long extended time whilst driving arms extended also pulling pin on turn table then lost footing, also getting into cab lost footing etc'.[7]
(f) On 24 May 2023, Dr Adler, consultant radiologist provided a report of an MRI of Mr Sabani's shoulders that relevantly states:[8]
Right hand dominant truck driver with 9 month history of bilateral shoulder pain worse on the left.
Rotator cuff tendinopathy and bursitis on recent ultrasound.
The degree of debris and volume of the bursal effusions bilaterally is disproportionate to the cuff pathology. Is there any clinical or serologic suspicion of associated inflammatory arthropathy?
(g) On 27 May 2023, Mr Sabani in a document titled 'WorkCover WA - FIRST certificate of capacity' providing a date of injury of 14 April 2023 and a description 'Repetitive duties involving - reaching for steering wheel, pulling into cab, lifting'.[9]
(h) On 14 June 2023, Linfox determined it was not liable to pay compensation to Mr Sabani in respect of 'bilateral shoulder condition', pursuant to s 14 of the SRC Act (the Primary Determination).[10]
(i) On 15 June 2023, Mr Sabani requested reconsideration of the Primary Determination.[11]
(j) On 28 June 2023, Linfox affirmed the Primary Determination (the Reviewable Decision).[12]
(a) On 27 April 2023, Mr Sabani sent an email that states:[13] > > ...now the doctor asked like how did I do the injuries well this is being going on for some time and I've never hurt myself other than the general duties of work it was a couple of occasions where thinking back I was pulling the pin on the turntable and pulling it hard. lost my grip and footing a couple of times and then I fell back that was a few months ago didn't think nothing of it... another time where I was getting into the truck and I missed my step three points of contact though and my hand wasn't fully gripped around the handle. > > other than that is just repetition and arm stretched out whilst driving over the past. I believe seven months and it's just catching up with me and because I've been doing exercises to try and comfort myself it's made it worse that's the only think I can come up with because even when I fell back from getting in the truck. and also trying to release The pin on the turntable I do recall a little bit of sensation at that particular time with the turntable pin but never thought nothing of it. > > (b) On 15 June 2023, Mr Sabani provided a statement attached to his request for reconsideration of the Primary Determination that states:[14] > > I was doing linehaul whilst in that role driving for 15 and a half hours and 1½ hours break 17 hrs in total so having my Hands On the steering wheel My arms extended for that period of time was getting very sore on my shoulders so doing that not exercising the arm enough and different muscle groups in the arm left it very painful and at some point I started to do some exercises to try and comfort My shoulders from the stabbing pains so when I wasn't driving I was resting for 4 days out of the 14 days feeling a little bit better I come back to work the same day on back in the seat starts hurting but I just put up with it and getting in and out of the truck losing my footing a few times whilst losing my foot I guess grabbing the first thing you could before falling back which I guess caused more tear in my shoulders One of my shoulders left side so over time I stopped linehaul and just went to dog runs with only one trip a fortnight which kept me behind the wheel for only 8 hours each day wasn't too bad but the damage had already been done so definitively I cannot give any specific injury timing other than the repetitive extended arm and then losing my footing in and out of the truck a couple of times and also pulling the pin is another one I guess the only thing I can think of or trying to comfort myself by holding myself up on the trailer trying to stretch my arms and give myself less pain I had not been on no painkillers so this went on for 7 months after I had stopped going up the road for 17 hours a day so just trying to comfort since then where it gave me the most agonising pain which really limited me to not sleeping enough resless sleep 2 months ago and I had enough so I went and saw my doctor and explain that my shoulders was always giving me pain and the doctor sent me off to get scans done I come back with the scans to my doctor and she went through it with me and said I have had torn my shoulder muscles on both sides and the left side was the worst had enormous amount of fluid which caused more pressure on my arm and that could have been from me trying to comfort myself all the time by doing certain exercises hoping it would give me more comfort but it wasn't so by then my doctor said have you got private health cover or anything like that I said no she said well I'm going to have to put you on the waiting list to get the shoulder looked at and I said okay well this is probably due to work cuz at first started when I was doing linehaul and that's when she said she didn't know I was working and I said yeah I was having my arms extended for a periods amounts of time last year she sent me to get a cortisone in my shoulder hoping to reduce the fluid I did that then she said to talk to my work and that's when I went to Wade and went from then on to see works doctor and put in a claim and see the physio and had seen the surgeon He sent me to do another scan and test also test the amount that was in my arm so that's pretty well all caught up so the bases extension of the arms for long period of times losing my footing trying to comfort myself by doing exercises...now the cortisone has given me much more comfort atm as to what it was before.. > > (c) On 17 October 2024, Mr Sabani provided a statement where he relevantly says:[15] > > 3. I worked for Linfox as a truck driver from 2020 until the end of a few months in 2023. For the 10 years prior to that, I worked for various companies as a truck driver in Western Australia along with roles driving road rangers. > > ... > > 8. Prior to sustaining my injuries with Linfox I was in good health. > > 9. I have never had any prior shoulder injuries or treatment including surgery. > > ... > > 12. The trailers I was carting were pre-loaded. My role was to drive the truck, and this required me to sit in the driver's seat with my arms extended on to the wheel for prolonged periods of time between sixteen to seventeen and a half hours. A typical job would be for me to drive from Perth to Port Hedland performing a 16-hour shift. > > 13. I worked 10 days a fortnight. > > 14. In driving the truck, I had to keep my arms extended onto the wheel for prolonged periods of time steering the truck and this involved repetitive shoulder extension and sustained flexion of my shoulder while at the same time reaching out to the truck's steering wheel. > > 15. Carrying out these activities constantly would put pressure and strain on my arms and shoulders. > > ... > > 18. Between 2020 and 2022 there were approximately six incidents where I lost my footing whilst climbing in and out of the truck or whilst checking loads and on these occasions, I had to save myself from falling by grabbing hold of the truck handle or rails which in turn strained my arms and shoulders. > > 19. I also recall another incident when I strained my shoulders while exerting a lot of force through my arms whilst pulling a pin out of a trailer to release the handle on the turntable. > > 20. Over time because of the repetitive and sustained nature of my work in driving the truck for lengthy periods of time, and as a result of the accumulation of the minor incidents I have described above, I started to develop pain and symptoms in my shoulders with my left shoulder pain being worse than my right. > > 21. As my shoulder pain deteriorated, I got to the stage where I could not keep doing the long-distance runs. Eventually in about December 2022 I spoke to my boss, and I stopped doing the long-distance truck driving and started doing dog-runs instead.
Q. I just want to know - so for about 10 years before you started at Linfox you were also doing driving roles. Is that part correct?
Q. You've just referred to a role that you had working at Port Hedland. Is what you said that you worked 12 hours a day?
Q. Were you ever involved in loading and unloading, or was it always driving?
A. Well, with the previous companies, yes, there was Blue Lightning Freight. The job description was involved with loading our own trailers. So it wasn't exactly rocket science because it was mostly bulker bags of sodium nitrate we were shipping. That was through Toll contracting. But most of it, it was just (indistinct) freight when it wasn't the bulker bags. So it was pretty basic, very basic.
Q. I think you've said that when you worked for Linfox you took a half an hour break every five hours of work. Is that correct?
A. Depending on what we had at the time. But most of the cases it was just drop and go. So it was unfortunate, yes. But that's the job description.
Q. It wasn't part of your job to load or unload, was it?
A. We were just classed as drivers. But it was - so we would get to site, most cases we had to help unload anyway.
Q. By December 2021 you stopped doing the long-haul driving, didn't you?
Q. So you'd only been doing that long haul driving with Linfox for a bit over a year when you stopped, correct?
A. Well, I pretty well started straight away, so it was a little bit longer than a year actually.
Q. So it would have been probably about a year and two or three months?
Q. You hadn't put in any incident reports about any injuries with Linfox before April 2023, had you?
Q. You knew that you were required to put in the incident reports if you had an injury or a - you know, an incident that might cause an injury at work?
A. Absolutely. If there was an injury involved, absolutely, straight away. But there was no injury - well, to my liking it wasn't an injury.
Q. Well, during this consultation you haven't brought up any pain or issues with your shoulder. That's correct, isn't it?[17]
A. Must be, yes, if there's nothing in there, no, I wouldn't have said nothing. That's correct, yes, if there's nothing in there.
Q. Prior to then you had started doing push-ups, hadn't you? April 2023, you'd started doing push-ups. Do you agree with that?
A. I can't remember that far back, but if that's what it says, if that's what 30 I've said, I've done push-ups because I've always done push-ups. I've always looked after myself and try to keep myself active when driving. So, yes.
Q. You've always done push-ups. Is that something that - I don't know that you mentioned that to the specialist who examined you. Do you recall telling him that you regularly did push-ups?
A. Not regularly. I'm not that good. But yes, I like to do push-ups, especially when I'm - yes, I don't know. I don't know. I may spontaneously. So I just do push-ups, whether it's push-ups or even just sit-ups. I don't know, whatever I can do to make me feel like I'm doing things with my body because I sit on the seat for hours and hours on end, and you feel lazy, and you feel like there's something you just need to do. So, to keep - yes, drowning in - yes, anyway.
A. Toes. I try to (indistinct) toes, yes. I'm pretty good at toes, yes. I haven't done the knees yet.
Q. At point 2 under that it says, 'Left shoulder pain for a month, worsening 10 recently, impacting on sleep, and then started doing push-ups that exaggerated the pain?[18]
A. Yes. That would - probably made me think about it more. So I guess, yes.
Q. Are you saying that you were doing your normal push-ups and you noticed your shoulders were painful?
A. Well, they were getting - I'm not able to perform my normal push-ups. So yes, I mean, I must say that I remember doing push-ups also because I thought that was the reason I had sore shoulders, because I wasn't doing - wasn't stretching - doing stretching and all the other business which I should have been doing. We weren't told to do it, but anyway, that's why I would have started doing - that's it - and I (indistinct) pain more. Otherwise, no.
Q. And then what, you've come back and done some push-ups and it had been painful? Or did you do the push-ups while you were away?
A. No. I hadn't done any push-ups when I got back. I just jumped in the truck and - that was me, after a few hours of sitting in that seat. So that's exactly what I got straight away.
Q. That reference in two, 'started doing push-ups that exaggerated the pain', are you saying that was then after you came back from Vietnam?
A. I can't - okay if I've actually said it in the message there, that means I would have done it. Okay? So I wouldn't just make it up. So if it says it there, then I've done it. Okay? That's all I can say.
Q. We're on page 208 now - it talks about - you saw the physio last week and given an exercise program. Do you see that?[19]
A. If that's there, that's what it would have been. Okay. That's - okay - this seems really strange. I'm sorry.
Q. It's correct that you told her on 14 June 2023 that you were doing push-ups at home?[20]
A. I might have been referring previously, yes. I don't know. I can't say that because I don't remember it. If it's not written there I can't say it, sorry. I can't remember that far back. I wouldn't have.
Q. Once your shoulders did get worse in about April 2023, isn't it the case that you tried to point to a work incident that might have been the cause in the past years? You tried to think of any work incident that you could point to that 10 might be the possible cause for your shoulder pain?
A. I was trying to find out what was the cause of my shoulder pain. It's not - I don't know if that before the scans. Because I had no idea what was going on with me. All I knew is that I was always trying to comfort myself, so that was all I knew. So if that was the case I have no idea. But, yes, I have no idea. Other than me trying to comfort myself, to - not knowing what it was at time if I hadn't had the scans done.
Q. Well, you did know from April that you had a full thickness tear in your shoulder, on your left shoulder. You were told that in April, weren't you?
Q. It was only after you were told that, that you then started to point to some previous events that you said had occurred at work, but for which you hadn't ever submitted an incident report. That's right, isn't it?
A. Because there was no incident report other than - I mean, I didn't know at the time. So I'm sitting in the truck, comforting - if you pulled the - if you had the cameras that would be amazing. That would show me always comforting myself and trying to do certain things while I'm sitting in one position trying to do - and I'm continuously moving trying to - just trying to comfort myself and not knowing what was actually going on, so - well. No, I didn't at the time. There was still - was a (indistinct) would have - so I'm talking before - well before I actually started - just before I knew, so. That was a time when I was comforting myself because I didn't what was going - so I had no idea. So my incident report - there is no incident, other than just the normal, general things that happened at work, I guess, that - there's no - the miss, not even a miss. So you've got to - yes, you've got to get your (indistinct) in the truck and you don't grab it completely. That's why they say three steps - three points of contact, you know, so you get one thing in your hand, and you're not thinking, bang. So you fall backwards, so little things like that which -yes, I mean, it happens every single day. But it wasn't an incident, but who knows, I mean - who knows how they got added or whether it was part of it - like, the reason I didn't grab - they're both flowers or who - I don't know. So I can't really answer that one, really, in a way that I can understand myself. I just.
Q. Right. And you didn't mention to Professor Steadman or Dr Pincus that you, leading up to April 2023, had been doing push-ups on your toes with a load of your body weight of over 90 kilograms, did you?
A. No - I don't understand. What - I can't even ask the question, so you'll have to move onto that question. That's - I've got a lot of questions for these guys myself, so. So no, I can't answer that question, sorry.
Yes, I would - I have to roll back. My memory's not that good. Well, it is, but it's - so much on my mind. Now, so she was talking about - okay, so if we refer back to how I was trying to explain, so - I think she asked a question about - you know. My gosh. So knowing - so if I'd known about certain, like - if he had exercise, okay, we go to - I can't remember the question. It was related to me working at - down for the other company at the mining company. So at Port Hedland and then we moved down to - moved down to Southern Cross. So now, the question was related to - okay, exercising and getting told to make it a part of your routine every single day, doing such long hours, okay? It's a must have, okay. There should be hierarchy in place for that as all the mining companies do. Now, Linfox doesn't. They don't have nothing. They'll tell you what to eat and how to manage your fatigue, but they don't tell you the long-term effects of holding your hands out for that long period of time, and there should be exercising and doing exercises every single day, taking extra time to do those things. There's nothing in place. So that was really - I really, really wanted to say something about it, but obviously I'm now - so, I'm (indistinct.) But - yes, there's nothing to take, so why? Don't know. They want to promote everything else, but they're not promoting the dangerous part of it, so - yes. That was one part of it. I can't even think of the other things, other than the doctors when they come on board. Obviously, I've got some questions for them.
It was my pleasure to see Nathan in the clinic today. Thank you for sending me this 48 year old right-hand dominant truck driver who works for Linfox. He reported unbearable pain on 14 April 2023 involving both his shoulders, his left being worse than the right. He states that there was no specific trauma but gives a history of multiple possible injuries. There is a background of performing line haul work where he would have outstretched hands, bilaterally, for 17 hours at a time. He felt pain with these duties.
His left shoulder is more problematic than the right. There is less pain after a subacromial bursal injection requested by his general practitioner...He states that he is performing short runs without too much difficulty at work and is keen on continuing this. Both shoulders wake him from his sleep at night.
I concur with the radiologist that he has a very large effusion with the left shoulder. His movements are not particularly irritable making infection unlikely. In addition, the glenohumeral joint cartilage is intact. However, I would like to exclude an infection and we will continue with the above. In any case, he has had a recent cortisone injection on board which is still exerting its effect.
Mr Sabani reports that he injured both his shoulders as a result of the repetitive and sustained nature of his work duties. His states his pain became unbearable and he reported his symptoms on 14 April 2023. From the outset, his left shoulder pain was worse than his right. He reported no specific traumatic incident. He states that his symptoms occurred as he was performing 16-hour shifts. He drives from Perth to Port Hedland, for example, and works 10 days a fortnight. These duties included steering, repetitive shoulder extension and sustained shoulder flexion whilst reaching out to the truck steering wheel. Mr Sabani reports several incidents which aggravated his symptoms including 6 incidents of straining his shoulders climbing into his truck when he lost his footing. He recalls another incident when he strained his shoulders pulling a pin out of a trailer to release the handle on the turntable.
Mr Sabani denies playing sport, performing renovations or heavy gardening around the time of the onset of his symptoms.
Mr Sabani stated that he ceased working on 24 May 2023, when his symptoms worsened.
In summary, Mr Sabani states that there were two aspects of his employment that had contributed to his symptoms. Firstly, there was his 16 hour shifts where he would be performing repetitive arm movements and also reaching out to the truck steering wheel. Secondly, he reports that he had several incidents during the course of his employment. He states that he had six incidents of straining his shoulders whilst climbing into the truck when he lost his footing thereby leading to traction through the shoulders. In addition, he states that he strained his shoulders, pulling a pin out of a trailer to release the handle on the turntable. He denies making specific reports of these incidents at the time they occurred.
In summary, he has bilateral shoulder pain with the left being worse than the right. The pain is severe enough to wake him from his sleep at night and he is unable to perform heavy tasks. He has not been able to return to his pre-injury duties.
The diagnosis is MRI scan evidence of left shoulder full-thickness, full-width tear with acromial spur and very large subacromial bursal effusion with debris. The bursal fluid was aspirated and there was no growth on microbiology and blood tests did not indicate an infection.
The diagnosis is MRI scan evidence of right shoulder high-grade tear of the anterior and mid-fibres of the supraspinatus with acromial spur.
In my opinion, your client's present condition was significantly contributed to by his workplace duties he undertook leading-up to the 14 April 2023 and in accordance with the history that he has provided to me. On the balance of probabilities, he has had an aggravation of pre-existing changes at his shoulders. His unfavourable acromial morphology is pre-existing (acromial spur). It is possible that he has sustained some tearing of his rotator cuff during the course of his duties be it the prolonged postures, repetitive movements or the incidents outlined above.
In my opinion, Mr Sabani's work duties have aggravated his bilateral shoulder conditions. But for his work duties, it is unlikely that he will be experiencing symptoms at their current severity.
It is not possible to determine the extent to which his work duties have contributed to his bilateral shoulder conditions as a percentage. In my opinion, his workplace duties have contributed to his symptoms to a significant degree.
It is probable that your client was suffering from pre-existing conditions to his left or right shoulders. In my opinion, his work duties have aggravated his pre-existing conditions to a significant degree.
I agree with Dr Steadman in that it is likely that Mr Sabani is suffering from bilateral subacromial impingement and bursitis. It is possible that the acromial spur and impingement and bursitis have contributed to rotator cuff tearing. It is not possible to determine the degree to which his workplace duties have contributed to the rotator cuff tearing. Therefore, in my opinion, Mr Sabani has had an aggravation of his pre-existing shoulder conditions meaning his symptoms have worsened and haven't returned to their prior status, at the least.
I disagree with Dr Steadman in that, in my opinion, his current condition suffices for an aggravation of a pre-existing shoulder condition. Mr Sabani states that he has no past medical history of a shoulder condition until he developed symptoms leading up to 14 April 2023. After the reported incident, he had a significant burden of treatment including a Cortisone injection to the left subacromial bursa, simple analgesia and physiotherapy. It is an aggravation as opposed to an exacerbation as his shoulders have not returned to their pre-injury state. I am uncertain as to what Dr Steadman is referring to with respect to "non-physical elements on examination".
Mr Sabani reports that he injured both his shoulder as a result of the repetitive and sustained nature of his work duties. He states that his pain became unbearable and he reported his symptoms on 14 April 2023...He states that his symptoms occurred as he was performing 16-hour shifts. He drives from Perth to Port Headland, for example and, works 10 days per fortnight.
These duties included steering, repetitive shoulder extension and sustained shoulder flexion whilst reaching out to the truck steering wheel. Mr Sabani reports several incidents which aggravated his symptoms including 6 incidents of straining his shoulders climbing into his truck when he lost his footing. He recalls another incident when he strained his shoulders pulling a pin out of a trailer to release the handle on the turntable.
Mr Sabani denies playing sports, performing renovations or doing heavy gardening around the time of the onset of his symptoms.
Under "History" in Dr Pincus' report, he stated that "There was no significant injury other than he occasionally missed the step getting into the truck or pulling a pin out". This seems to indicate that there were two forms of injury acknowledged by Dr Pincus. In my opinion, on the balance of probabilities, he had had an aggravation of pre-existing changes at his shoulder secondary to these activities at work. It is my interpretation that this constitutes a workplace injury.
Dr Pincus further opines that "the significance of the symmetry of findings" between Mr Sabani's shoulders "is confirmatory evidence that this condition is conditional rather than related to trauma". In your report dated 19 December 2923, you recorded your opinion that Mr Sabani's injuries were "significantly contributed to by his workplace duties..." and formed the view that 'on the balance of probabilities', Mr Sabani "had an aggravation of pre-existing changes in his shoulder" and that if it were not for his workplace duties, it was unlikely that he would be experiencing the severity of his symptoms.
In my opinion, symmetrical imaging findings are not always confirmatory evidence that a patient's condition is constitutional rather than related to trauma. In my opinion, a patient's diagnosis should be based on the history, examination and imaging findings. If Mr Sabani had bilateral symmetrical pathological changes and had a history of aggravating the shoulders, then, in my opinion, this would constitute a workplace injury. In Dr Pincus' report, he acknowledges that there was some injury to the shoulders as outlined in question 1. In my opinion, Mr Sabani has not returned to his pre-injury state, in fact, his symptoms are worsening. The workplace injury could not be said to be just an exacerbation. It is instead, an aggravation in that his symptoms have worsened and continue to worsen. In particular, Mr Sabani's right shoulder symptoms have worsened and a more recent ultrasound scan shows a progression in the pathology to full-thickness tearing of his supraspinatus and infraspinatus.
In my opinion, the effects of Mr Sabani's employment have not ceased. He continues to have worsening symptoms and his range of motion and strength are deteriorating on examination. His employment has not merely caused him "discomfort", according to his history. Mr Sabani has severe pain and dysfunction which continues to worsen. In my opinion, Mr Sabani has not had a minor exacerbation. He has had an aggravation and his symptoms continue to worsen.
Mr Sabani is a 48 year old right handed truck driver. He has worked at Linfox for 2 years and 10 months and drives trucks north. He describes that he believes that his problem is that because the trailers are loaded, there is no physical work, and his shoulder muscles are wasting along with the fact that he has to have his arms on the wheel extended for 17½ hours. The consequence of this is that he has had pain in the shoulders now for one and a half years although as noted in your request, he only recently submitted a claim on 27.04.2023 resulting in the lodgement of a claim one month later.
He reports that when he started work with Linfox the first nine months was satisfactory. He describes driving B triples and did not have to do any loading. He said that he would have a half hour break every five hours and get in and out of the truck and check the loads. He describes along the way a number of minor events such as losing footing or climbing in and out of the truck or checking loads, but he said on no occasion did he specifically hurt his shoulder.
Currently he is working on shorter long haul runs. He is trying to do less time but describes the trucks which are all Volvos as new with power steering, but it is the arms at front really. He says some colleagues rest the right arm on the armrest and use the left arm to control the truck but he said the company policy is that both hands need to be on the wheel with the arm at the front.
As noted, he confirms again that because he has not been doing any physical work or tying down the trucks that this is the cause of the complaint.
Mr Sabani suffers from extensive bilateral shoulder conditions. These include extensive rotator cuff pathology and extensive predisposing subacromial shape factors. He currently reports complaints related to lack of physical activity as a truck driver and secondly, the posturing associated with driving the truck with his arms forward. He initially presents the nature of that as being for 17½ hours but as noted every five hours he has a half hour break. He says he tries to do some exercises in the truck. Reportedly he has been offered surgical reconstruction by Dr Khoo for his rotator cuff pathology.
Mr Sabani has advanced degenerative change of his left rotator cuff which is due to the shape of the acromion and causing what is known as impingement and the subacromial osteophyte digs into the rotator cuff.
I am therefore of the opinion considering the mechanism and MRI findings that the condition is c) not employment related and the consequence of b). I would not be of the opinion that the activity described is the cause of the current presentation. Any surgical reconstruction would be for pre-existing disease and I'm not of the opinion based on the mechanism and advance shoulder pathology, that his current condition would not suffice for an aggravation and there also appear to be some relevant nonphysical elements on examination.
The story with the right shoulder is much the same although the right shoulder is more banal than the left with the history and examination being closer to normal but having identical MRI findings and therefore substantiates the cause of low level complaint. It is unlikely to be consistent with a high level of movement loss.
Mr Sabani suffers from rotator cuff tendinitis on the right side.
In my report dated 02.06.2023, I was advised by Mr Sabani that his complaint was the consequence of shoulder muscle wasting from driving the truck. He advised that he had pain in the shoulders for one and ½ years, but only had recently submitted the claim. I understood that he did not have to do any truck loading or unloading with the main physical activity including checking the truck. I requested an MRI which showed bilateral symmetrical pathology.
As part of the documents which were provided for the review, a report is provided from the treating specialist Dr Paul Khoo dated 19.12.2023. In that report Dr Khoo again confirms that there was no specific traumatic incident, but that Mr Sabani was of the opinion it was a consequence of duties involving steering the truck.
On this occasion there appeared to be more content to the mechanism as Mr Sabani reported several incidences which had aggravated his shoulders including six incidences of aggravated shoulders while climbing onto the truck when he lost his footing. This was not alluded to in my assessment.
Dr Khoo confirms that he continues to suffer from shoulder pain and says that he is not able to return to preinjury employment. He provides an opinion that the prognosis is guarded and that on the balance of probabilities, that he suffered an aggravation in his work duties. In question 10.1, he speculates about some differences in the range of motion and goes on to suggest in 11 D that surgical intervention would be the appropriate measure. He does not allude to whether this surgical treatment would be to treat the work-related condition.
He suffers from rotator cuff deterioration with associated constitutional factors.
I am not of the opinion that he continues to suffer from or did suffer from a work-related injury or an aggravation of a pre-existing condition.
the report of Dr Paul Khoo as per commented above indicates that he believes that the work-related activity, and now six defined aggravations which I would not be able to confirm are documented, but the course of his bilateral constitutional symmetrical radiological shoulder degeneration.
He was working as a line haul operator doing long distance truck driving for Linfox; he had been there since 2020.
He first noticed some problems from 2021 with his left shoulder. He said he was constantly reaching to get things out of the fridge and he started to get some sharp, stabbing pains. He would do some stretches.
The discomfort continued. There was no significant injury other than he occasionally missed the step getting into the truck or pulling a pin out.
Initially the left shoulder was most sore and then he developed right shoulder pain. The pain was ongoing and he said it is due to prolonged holding his hands up on the steering wheel.
Eventually, in December 2021, the pain was so bad that he could not do the long-distance truck driving and he spoke to his boss and started doing what he calls "dog runs", which is shorter driving and only eight hours a day.
He did that for four months and then went on a holiday to have his teeth corrected in Vietnam. When he came back, his shoulder was really sore. He told his boss; he thinks that was in about early 2023. He had some physiotherapy and was given a pillow for his seat which seemed to help a bit but the pain was persistent.
He has worked as a truck driver for Linfox since 2020. He stopped at the end of 2022 and did 'dog runs' for a few months in 2023 before he was stopped work by the insurance company. He has not worked since.
In the last 10 years he has done the same sort of work though used to work for a company where he used to do the unloading and loading.
The diagnosis of his shoulders is that he has abnormal subacromial architecture with large enthesophytes which have caused attrition rupture of both his right and left supraspinatus tendons.
The significance of the findings is confirmatory evidence that this condition is constitutional rather than related to trauma.
In my opinion, the condition is a consequence of his underlying pre-existing condition. His employment merely caused him to have discomfort and at most a minor exacerbation, but any effects of his employment have long since ceased.
I do not believe he continues to suffer from any effects of any work-related condition. His condition now is constitutional and related to his shoulder morphology where he has developed attritional rupture of his rotator cuffs. I do not believe that long distance driving would cause complete disruption of a rotator cuff.
I do not believe that he continues to suffer from the effects of any work-related condition.
4.1. there is an injury in the nature of left shoulder full-thickness full-width tear with acromial spur and very large subacromial bursal effusion with debris;
4.2. there was an injury in the nature of right shoulder high-grade tear of the anterior and midfibres of the supraspinatus with acromial spur;
4.3. the Applicant's injuries were significantly contributed to by his workplace duties which he undertook leading up to the 14 April 2023 namely:
a. working his 16-hour shifts where he would be performing repetitive arm movements
c. several incidents during the course of his employment including the six incidents of straining his shoulders whilst climbing into the truck when he lost his footing thereby leading to traction through the shoulders and straining his shoulders; and
d. pulling a pin out of a trailer to release the handle on the turntable.
4.4. on the balance of probabilities, the Applicant sustained an aggravation of pre-existing changes at his shoulders;
4.5. any pre-existing degeneration was asymptomatic, and the workplace activities and incidents described above have caused an aggravation of the Applicant's pre-existing asymptomatic bilateral shoulder conditions;
4.6. the Applicant's symptoms have worsened and have not returned to their prior state and therefore the workplace aggravations are continuing;
4.7. the Applicant is incapacitated for his pre-injury employment as a truck driver as a result of his workplace bilateral shoulder condition aggravation;
4.8. the Applicant continues to require reasonable medical treatment in respect of the injury including possible arthroscopic subacromial decompression, rotator cuff repair plus removal of loose body;
4.9. the opinion of Dr Khoo ought to be preferred over that of Prof Steadman as a sound explanation for his opinion has been provided with reference to the nature and conditions of the Applicant's employment, history of injury and ongoing reported symptoms;
4.10. the Applicant's left and right shoulder conditions have arisen out of or in the course of, his employment with the Respondent such as to give rise to an entitlement to compensation pursuant to Section 14 of the SRCA;
4.11. alternatively to 4.9., the Applicant's left and right shoulder conditions have been significantly contributed to by his employment with the Respondent such as to give rise to an entitlement to compensation pursuant to Section 14 of the SRCA.
First of all, thank you for your patience throughout this process. I've tried to respond to everyone's comments directly within the paragraphs, and I hope you're able to read them. Your thoughts are appreciated.
I'm writing because I need to be clear about something that I feel strongly about. While I would like to move forward and put this behind me, I believe that Linfox has to take responsibility for its actions and acknowledge the mistakes that need to be corrected. Specifically, we need to ensure that drivers understand how injuries - both short-term and long-term - can be prevented. This starts with simple things like stretching exercises and fatigue management, which should be made compulsory for all drivers. There's no reason why this shouldn't be implemented immediately.
It's not just about those of us working in these physically demanding roles - this issue affects everyone, including our children. My own kids have suffered from back pain, sore wrists, and shoulder discomfort from spending too much time hunched over devices like iPads and phones. At such a young age, they're already experiencing issues that could have been avoided with proper posture and regular stretching. And I'm sure if you speak to a doctor, they'll tell you the same thing: poor habits and lack of movement are causing long-term harm, especially to young children.
Linfox is aware of how these injuries can be prevented. We've seen it in other industries, like mining, where stretching and regular breaks are compulsory. Why can't the same be done for drivers, especially when they are working longer hours? In many cases, drivers work up to 17 hours, which is far more than the 12-hour shifts in other industries where injury prevention measures are already in place.
The reality is that many drivers are suffering in silence. They don't understand why their bodies aren't functioning like they used to - why they feel so sore, why they struggle with long-term fatigue. And when they go to report it, they often face being dismissed or told they're "too old" or "not good enough." This is unacceptable. These are the people who are putting food on our tables, delivering the goods we rely on. They deserve better, and they need to be educated about the risks and how to manage them before it's too late.
At the end of the day, this isn't just about one company; it's about all of us, about taking pride in the work we do and making sure that we're doing it in a way that promotes health, safety, and well-being. So I'm asking for Linfox to step up and take responsibility, and for all of us to start a conversation about how we can better care for our drivers.
Thank you for your time. I won't be engaging in any further back-and-forth on this, but I hope my message is heard. To those who choose to ignore the reality of the situation, they will have to live with their own conscience.
a) The weight of specialist medical evidence, being the evidence of Dr Peter Steadman, orthopaedic surgeon and Dr Paul Pincus, orthopaedic surgeon, supports a finding that the pathology identified within the Applicant's bilateral shoulders represents pre-existing degeneration, unrelated to his employment with the Respondent. > > b) Despite retrospectively reporting the occurrence of various contended incidents occurring in 2022 and 2023, the Applicant failed to contemporaneously report the occurrence of any claimed incidents resulting in shoulder pain and/or injury. > > c) Indeed, the Applicant has provided multiple different contended causes of his shoulder pain through the course of this claim for compensation, to the various medical practitioners who have examined him, with such causative factors including the extension of his arms whilst driving; slipping in the course of his employment or pulling out the pin in the truck. > > d) The contemporaneous medical records of the Candlewood Medical Centre, document the Applicant's first attendance on account of shoulder pain on 14 April 2023, wherein it was recorded that as opposed to any specific work incident, the Applicant had started doing push-ups which had "exaggerated pain" within his shoulders.
a) Their comprehensive and well-reasoned reports; > > b) That their opinions are consistent with the objective radiology, which documents extensive and comprehensive pre-existing changes to the Applicant's bilateral shoulders indicative of a constitutional and pre-existing condition; > > c) That their opinions accord with the contemporaneous medical records, which fail to document the emergence of shoulder symptomatology in the context of any particular documented workplace incident(s); and > > d) Dr Khoo has predicated his opinion entirely upon the history reported by the Applicant, a history which for the reasons outlined above, is not borne out by the contemporaneous documentary evidence.
a) The evidence of Dr Khoo is the key expert evidence relied upon by the applicant in opposition to the opinions of Professor Steadman and Dr Pincus.
b) The respondent has never been provided with the letters of instruction to Dr Khoo. Most critically, it does not know what he was briefed with in terms of the relevant legal tests and also does not know what tests he has applied.
c) Dr Khoo expresses an opinion about causation in his report dated 19 December 2023 which is opaque and could not be given any weight: "It is not possible to determine the extent to which his work duties have contributed to his bilateral shoulder conditions as a percentage. In my opinion, his workplace duties have contributed to his symptoms to a significant degree... his work duties have aggravated his pre-existing conditions to a significant degree... Mr Sabani has had an aggravation of his pre-existing shoulder conditions meaning his symptoms have worsened and haven't returned to their prior status, at the least."
d) On the face of his report, Dr Khoo has not applied the correct legal tests and it would be procedurally unfair to presume otherwise when his reports do not reflect reasoning by reference to the correct tests and he has not been made available for cross examination. It is not even 100% clear whether Dr Khoo is referring to aggravation of a frank injury or an aggravation of an ailment. These are all matters he would have been questioned about. Linfox would have also put to him matters within those reports of Professor Steadman and Dr Pincus which were prepared after Dr Khoo's last report, see Hearing Book Tabs 3-7.
ASIC applied for an order that certain evidence adduced by Mr Tarrant be excluded (or that the scope of the review be narrowed to exclude the evidence from consideration). This evidence included unsworn statements of Mr Tarrant and an affidavit of Mr Peter Wood (who was not available for cross-examination). The AAT considered ss 25(4A) and 33 of the AAT Act and the common law regarding the impact on the admissibility of evidence of the inability to cross-examine. Ultimately, the AAT ruled that it would not have regard to the unsigned, unsworn statements of Mr Tarrant, but that it would have regard to the affidavit of Mr Wood, subject to submissions on the weight it should be given...
The Court's judgment in Tarrant upheld the Tribunal's decision to disregard evidence, partly because ASIC was not able to conduct cross examination of the deponent. The Court concluded at [120]: "...it was open to the AAT to give [the material] no weight as they were not evidence and no opportunity was provided to have them tested by cross-examining Mr Tarrant."
Did Mr Sabani suffer an 'ailment or an aggravation of such an ailment'?
The diagnosis is MRI scan evidence of left shoulder full-thickness, full-width tear with acromial spur and very large subacromial bursal effusion with debris. The bursal fluid was aspirated and there was no growth on microbiology and blood tests did not indicate an infection. The diagnosis is MRI scan evidence of right shoulder high-grade tear of the anterior and mid-fibres of the supraspinatus with acromial spur.[33]
(b) Professor Steadman. 'Mr Sabani has advanced degenerative change of his left rotator cuff which is due to the shape of the acromion and causing what is known as impingement and the subacromial osteophyte digs into the rotator cuff'[34] and 'He suffers from rotator cuff deterioration with associated constitutional factors.'[35] Professor Steadman makes the same diagnosis for the right shoulder.
(c) Dr Pincus.
The diagnosis of his shoulders is that he has abnormal subacromial architecture with large enthesophytes which have caused attrition rupture of both his right and left supraspinatus tendons.[36]
(a) Unfavourable bilateral acromion morphology with large undersurface enthesophyte (bilateral shoulder spurs).
(b) Bilateral shoulder tears of his supraspinatus with bursitis and bursal effusions (bilateral rotator cuff tears and bursitis).
(c) Bilateral degenerative rotator cuff pathology (bilateral degenerative rotator cuff pathology).
(a) That is the express opinion of Professor Steadman and Dr Pincus.
(b) Dr Khoo when asked if he agrees with Professor Steadman's opinion that Mr Sabani has advanced degenerative change of his left rotator cuff, Dr Khoo says 'I agree with Dr Steadman in that it is likely that Mr Sabani is suffering from bilateral subacromial impingement and bursitis'.[37]
(c) Dr Khoo's opinion of the bilateral degenerative rotator cuff pathology and bilateral rotator cuff tears and bursitis can be reasonably inferred to be consistent with that of Professor Steadman and Dr Pincus as to them being a disease.
(d) There is no evidence that the bilateral degenerative rotator cuff pathology and bilateral rotator cuff tears and bursitis is a 'frank' injury.
Was Mr Sabani's aggravation of an ailment contributed to, to a significant degree, by his employment so as to constitute a 'disease'?
There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of "significant" as "substantially more than material" makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be "more than trivial"; it had to be substantially more than trivial. The Tribunal did not recognise this, despite its reference to the definition. The error the Tribunal made is similar to the one made by the Tribunal in Sahu-Khan. In a valiant attempt to save the decision Mr Robinson drew attention to the fact that Dr Lewin had said "certainly more than trivial", but this was no more than an emphatic way of saying "more than trivial". It did not satisfy the statutory test and the Tribunal was mistaken in thinking otherwise.
Moreover, the current test of contribution also requires an evaluative exercise to be undertaken. That is apparent both from the words used in subs (1) of s 5B and also the matters to which subs (2) draws attention. The Tribunal did not engage with any of them. Indeed, it did not mention subs (2) at all. While the chapeau to the subsection states that those matters "may" (not "shall") be taken into account, a word which is generally permissive, properly construed it is at least arguable that in this context it is directory; in other words that "may" means "shall": see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 222-223 (Earl Cairns LC); North Australian Aboriginal Justice Agency Ltd v Northern Territory [2015] HCA 41 at [209] (Nettle and Gordon JJ). In the absence of argument on this question I refrain from expressing a concluded view. Nevertheless, there is nothing in the Tribunal's reasons to indicate that it carried out the kind of evaluative exercise required by the statute.
Nature of tasks involved in employment with Linfox
Any predisposition of Mr Sabani to aggravation of bilateral shoulder disease
Any activities of Mr Sabani not related to his employment with Linfox
Any other matters affecting Mr Sabani's health
Analysis of conflicting expert medical opinions
"Aggravation" means, I think, that an existing disease has been made worse, not that it has simply become worse. "Acceleration" I have previously said and venture to repeat "probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached - its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli"
(a) Mr Sabani's workplace duties contributed significantly to the aggravation of the bilateral shoulder disease, and it was possible that Mr Sabani 'has sustained some tearing of his rotator cuff during the course of his duties' and 'but for his work duties, it is unlikely that he will be experiencing symptoms at their current severity'.
(b) 'In my opinion, your client's present condition was significantly contributed to his workplace duties he undertook leading-up to the 14 April 2023 in accordance with the history that he has provided to me'.
(a) Professor Steadman opines, 'based upon the radiological findings, that there is evidence that his bilateral shoulder conditions are caused by any factors other than his age'.[44]
(b) Dr Pincus opines 'In my opinion, the condition is a consequence of his underlying pre-existing condition. His employment merely caused him to have discomfort and at most a minor exacerbation, but any effects of his employment have long since ceased.'[45]
It is a trite principle of evidence law that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts, which facts are proved by the evidence in the case, exclusive of the evidence of the expert, to the satisfaction of the Court according to the appropriate standard of proof. Whether or not the expert believes in that sub-stratum of facts or knows them to be true or is satisfied that they are true, is completely beside the point. The expert's function is to express an opinion based on assumed facts, not to express a view on whether the assumptions are justified. (See Clarke v. Ryan [1960] HCA 42; (1960) 103 CLR 486.)
Expert evidence is inadmissible unless the facts on which the opinion is based are stated by the expert - by way of proof if the expert can admissibly prove them, otherwise as assumptions to be proved in other ways.
Before an expert medical opinion can be of any value the facts upon which it is founded must be proved by admissible evidence and the opinion must actually be founded upon those facts: see Ramsey v Watson [1961] HCA 65; (1961) 108 CLR 642; Trade Practices Commission v Arnotts Ltd (1990) 21 FCR 324; Parric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 845-846.
As with any other evidence, expert opinion must be comprehensible and the conclusions reached must be rationally based. A court ought not to act on an opinion, the basis for which is not explained by the witness expressing it: see Steffen v Ruban (1966) 84 WN (Pt 1) (NSW) 264.
(a) There was a gap of approximately 14 months from when Mr Sabani ceased long-haul driving to the onset of symptoms in his shoulders.
(b) The incidents occurred prior to November 2021 when Mr Sabani was driving long-haul for Linfox.
(a) Mr Sabani's employment with Linfox was for a relatively short period of 2 years and 9 months, commencing when he was 44 years of age, with no requirement to undertake physical tasks other than associated with driving. > > (b) Mr Sabani had undertaken physical roles in his employment history prior to commencing with Linfox, in particular as a driver for approximately 10 years where he had loaded and unloaded trucks. > > (c) Mr Sabani's bilateral shoulder spurs made him vulnerable to the aggravation of his underlying bilateral shoulder disease and the Tribunal is reasonably satisfied on the available medical evidence that his bilateral shoulder spurs contributed significantly to the development of his bilateral shoulder disease. > > (d) The Tribunal is not reasonably satisfied that Mr Sabani injured, or aggravated his bilateral shoulder disease during his period of long-haul driving with Linfox as contended by him because: > > > (i) Mr Sabani did not report with Linfox any of the incidents he says that occurred during the period of long-haul driving with Linfox, namely losing his grip and footing a couple of times when pulling himself into the cab of the truck and operating a pin on a turntable; > > > > (ii) the evidence of each of the incidents is at a level of generality and not of a specificity that allows the Tribunal to form a reasonable satisfaction of trauma arising from them; > > > > (iii) there is no contemporaneous medical evidence that Mr Sabani complained of shoulder pain during the period of long-haul driving with Linfox when he says the incidents occurred; > > > > (iv) the first evidence of shoulder pain is in April 2023, approximately 14 months after he ceased long-haul driving; and > > > > (v) this is in the context that Mr Sabani regularly attended general practitioners for treatment of his comorbidities and other medical issues during his employment with Linfox. > > (e) The Tribunal prefers the opinions of Professor Steadman and Dr Pincus that Mr Sabani's employment with Linfox did not aggravate his bilateral shoulder disease because: > > > (i) the evidence that Mr Sabani presented to a general practitioner in April 2023 and that the pain in his shoulders was 'exaggerated' when doing push-ups was not part of the factual matrix upon which Dr Khoo (or Professor Steadman or Dr Pincus) formed his opinion as to the whether there had been an aggravation of his bilateral shoulder disease significantly contributed to by Mr Sabani's employment with Linfox; and > > > > (ii) Dr Khoo's acceptance of Mr Sabani's self-reported history of long-haul driving and the incidents were contiguous to the onset of symptoms to form Dr Khoo's opinion that they significantly contributed to the permanent aggravation of Mr Sabani's bilateral shoulder disease are facts the Tribunal has made findings that it is not reasonably satisfied occurred.
[2] On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
[29] Respondent's Closing Submissions, dated 23 October 2025, at [2].
[30] Respondent's Statements of Facts, Issues and Contentions, dated 8 November 2024.
[31] Respondent's Submissions regarding the effect of having incomplete documentation and being unable to cross examine Dr Khoo, dated 25 August 2025.
Dasreef Pty Limited
Hawchar
Dasreef Pty Limited v Hawchar [2011] HCA 21
Military Rehabilitation and Compensation Commission v May [2016] HCA 19; (2016) 257 CLR 468
Ogden Industries Pty Ltd v Lucas [1967] HCA 30; (1967) 116 CLR 537
Tarrant v Australian Securities and Investments Commission [2015] FCAFC 8
(1967) 116 CLR 537
(1996) 129 FLR 431
(1996) 15 WAR 370
(1960) 103 CLR 486
(1961) 108 CLR 642
(1990) 21 FCR 324
(1985) 59 ALJR 844
(2016) 257 CLR 468