appellant. The decision under review was set aside and a substituted decision made that Linfox Armaguard Pty Ltd was liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for Mr...
Key principles
On the evidence as a whole, the Tribunal found it more likely than not that Mr Mutton sustained a right rotator cuff injury at work on 25 August 2006. The contemporaneous...
The injury resulted in impairment within s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), because it caused damage to or malfunction of the shoulder.
Although written notice was not given as soon as practicable under s 53(1), the Tribunal found that the delay was caused by Mr Mutton not appreciating the seriousness of the...
Issues before the court
Whether Mr Mutton sustained a work-related right shoulder injury on 25 August 2006.
Whether the injury resulted in impairment or incapacity for work under s 14.
Whether late written notice prevented the Act from applying under s 53.
Whether Dr Bodel's opinion should be excluded because of an allegedly inaccurate factual assumption.
Plain English Summary
The Tribunal accepted that Mr Mutton probably injured his right shoulder while lifting coin bags at work in August 2006, even though his evidence had inconsistencies and the medical evidence could not precisely date the tear. It found that the injury damaged his shoulder and therefore caused impairment. Although he gave written notice much later than the event, the Tribunal accepted that he did not understand the seriousness of his condition until he saw a specialist, and treated that as a reasonable cause for the delay. Armaguard was therefore found liable under s 14.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,353 words · generated 01/10/2026
What happened
Trevor Mutton worked for Linfox Armaguard Pty Ltd as a security guard from 1994 until his employment ended in January 2007. His duties included delivering and collecting cash and carrying coin bags weighing up to 20 kilograms. He claimed that on 25 August 2006, while unloading coin bags at a Woolworths loading dock in Rockdale, he felt a stabbing pain in his right shoulder.
Cited legislation
2 cited instruments linked from this judgment.
Mutton said that a colleague, Wayne Lowman, took over the lifting that day. Lowman later provided a statement recalling that Mutton complained of pain while lifting coin bags and that Lowman offered to do the rest. Lowman did not attend to give evidence. Mutton also said he reported the event to supervisors that evening but did not give written notice.
Two days later, Mutton's GP, Dr Lim, visited him at home and gave him morphine. Dr Lim's clinical note referred to back pain, shoulder symptoms and lifting money bags. The Tribunal considered the symbol before “shoulder” disputed, but concluded from the note and the other records that it was the letter “R”, shorthand for “right”. The note did not expressly say the shoulder symptoms arose at work. The Tribunal considered it consistent with Mutton having told Dr Lim about the lifting event and shoulder symptoms.
Mutton continued working, but said he avoided lifting duties. He did not make a written compensation claim until September 2007, after medical investigations found a full-thickness supraspinatus tear and bicipital tendonitis. The Tribunal reviewed the refusal of his claim and set that decision aside. It substituted a decision that Armaguard was liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).
The reasons include a caution about the evidence. Mutton's accounts of prior shoulder symptoms were inconsistent, and the Tribunal considered that his admission that he had been dishonest with prospective employers called for care in assessing his evidence. It did not treat those matters as automatically discrediting everything he said. Instead, it assessed the disputed account against the supporting evidence.
The supplied judgment text has paragraph numbering that restarts in different sections, so a reliable global paragraph reference cannot be given. This discussion therefore identifies the relevant headings and passages rather than assigning potentially misleading paragraph numbers.
Why the court decided this way
The Tribunal had to determine whether there was a work injury, whether it caused impairment or incapacity, and whether the late notice meant the Act did not apply. It also considered Armaguard's challenge to Dr Bodel's expert report.
On the injury question, the Tribunal recognised that Mutton bore the evidentiary onus of establishing the event. His evidence contained material inconsistencies. Before August 2006 he initially denied shoulder problems, although records and documents referred to earlier shoulder or upper-back symptoms. He also gave differing histories to medical practitioners about the 1999 incident and the onset of his symptoms. The Tribunal said these inconsistencies required caution, particularly where his account lacked independent support.
But the Tribunal did not decide credibility in isolation. It identified several strands of evidence supporting an injury in August 2006: Dr Lim's clinical note from two days after the event; the leave form referring to workers compensation for the first working day; Lowman's account of Mutton complaining of pain while lifting; and Mutton's uncontradicted evidence that he avoided lifting after the incident. The medical experts considered that the lifting described could have caused at least a partial rotator cuff tear. The radiology could not establish the date of the tear, but did not rule out a partial tear in August 2006.
The Tribunal gave particular weight to Dr Lim's contemporaneous note. It found that the most rational explanation of the recorded history was that Mutton had told Dr Lim about shoulder symptoms associated with lifting money bags. It also considered that the evidence of a severe back-pain episode did not rule out shoulder pain at the same time. Taking the evidence together, it found it more likely than not that Mutton injured the right rotator cuff on 25 August 2006. Given his return to work and delay in seeking treatment, it considered the injury more likely to have caused a partial tear.
The impairment element was comparatively straightforward. Section 14 required the injury to result in impairment or incapacity. The Tribunal described impairment as damage or malfunction to a body part and recorded that Armaguard conceded that this element would be satisfied if the injury were established. The Tribunal found impairment and did not need to decide whether the injury also caused incapacity for work.
The notice issue turned on s 53. Section 53(1) required written notice as soon as practicable after the employee became aware of the injury. The parties accepted that Mutton did not provide written notice within that time. Section 53(3), as reproduced in the reasons, allowed notice to be treated as given in specified circumstances, including where failure resulted from “any other reasonable cause”. The Tribunal accepted that Mutton did not appreciate the seriousness of his condition until he saw Dr Kirsh and learned that surgery might be needed. It found that this was a reasonable cause for the delayed notice.
Finally, the Tribunal rejected the practical force of Armaguard's objection to Dr Bodel's opinion. The first report included a passage suggesting Mutton ceased work after the injury. The Tribunal noted that this sat uneasily with another passage saying he continued to try to work. More importantly, Dr Bodel's second report expressly assumed that Mutton returned to work and reached the same causation conclusion. The Tribunal therefore considered the challenge to the first report did not affect the outcome.
Before and after state of the law
The decision applied the statutory scheme as it stood for the alleged 2006 injury. The Tribunal said the injury occurred before 5 April 2007 and that the pre-amendment definition applied by reason of Schedule 1, Item 42 of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007. Under the earlier definition reproduced in the reasons, a physical injury other than a disease had to arise out of or in the course of employment. The decision treated that definition as the relevant one for Mutton's claim.
For s 14, the Tribunal applied the requirement that an injury result in impairment or incapacity. It did not make incapacity a necessary additional finding once it found impairment. The reasons state that damage or malfunction of a body part can constitute impairment, whether or not the impairment is permanent or requires treatment.
For notice, the decision applied s 53(1) and the reasonable-cause provision in s 53(3). Its treatment of “reasonable cause” was factual: Mutton's delayed understanding of the seriousness of his condition was accepted as sufficient in the circumstances. The reasons do not set out a universal test for when delayed awareness will amount to reasonable cause, and the finding should not be expanded beyond the facts considered.
On expert evidence, the Tribunal discussed Makita (Australia) Pty Limited v Sprowles, Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd and Australian Securities and Investments Commission v Rich. It noted that Makita's apparent strictness had been moderated in later decisions and that Makita was persuasive, not binding, on the Tribunal. The decision did not purport to replace those authorities with a new general rule. It resolved the particular evidentiary objection by noting the express assumption in Dr Bodel's second report and the consistency of its conclusion with his first report.
The supplied judgment contains no later decisions or treatment of this case. It therefore supports no account of how subsequent courts or tribunals have applied, followed or limited it. The case's stated result is a Tribunal determination on the evidence before it, not a finding in this source that later decision-makers adopted a general rule.
Key passages with plain-English translation
The Tribunal's central finding was: “it is more likely than not that he received an injury to his right rotator cuff on 25 August 2006.” In plain English, the Tribunal accepted the work injury as more probable than not after weighing all the evidence. It did not say that every part of Mutton's recollection was reliable or that the medical evidence established the exact date of the tear by itself.
The Tribunal said Dr Lim's note was “the most rational explanation” of a history in which Mutton told the GP about shoulder symptoms and lifting money bags. This explains why the note mattered despite its difficult handwriting and its failure expressly to state that the shoulder injury happened at work. The Tribunal read it alongside the surrounding evidence rather than treating it as conclusive on its own.
On impairment, the Tribunal said: “We are satisfied that the subject injury ‘resulted in’ impairment.” In practical terms, it found that the shoulder injury caused damage or malfunction within the statutory meaning. Because impairment was established, it did not decide the separate question of incapacity for work.
On notice, the Tribunal concluded that Mutton's failure to appreciate the seriousness of the condition until his appointment with Dr Kirsh “constitutes a ‘reasonable cause’” for not giving notice as soon as practicable. This was the Tribunal's application of the statutory exception to the accepted fact of late written notice. It should be read as a conclusion on these circumstances, not as saying every delayed claim caused by a later diagnosis has reasonable cause.
On the expert report, the Tribunal considered the challenge “somewhat moot” because Dr Bodel's later report expressly proceeded on the assumption that Mutton returned to work. The plain-English point is that any defect in the first report's account did not matter to the Tribunal's assessment of the second report, which stated its factual basis.
What fact patterns trigger this precedent
This decision may be relevant as a factual example where a worker claims a physical injury from a particular work task, but the account is challenged because of inconsistent histories, delayed reporting, or a lack of direct contemporaneous documentation. The Tribunal did not rely on one decisive item. It considered a combination of a clinical note made shortly after the alleged event, a co-worker's account, leave records, evidence about later work duties, and expert evidence that the described task could have caused the kind of injury found.
It may also be relevant to claims involving a possible aggravation or partial injury where medical evidence cannot determine precisely when a tear or condition arose. Here, the experts differed on the age and development of the tear, and the radiological evidence did not fix the date. The Tribunal treated that uncertainty as part of the overall evidence assessment, not as a reason by itself to reject the claim.
The notice aspect may be relevant where written notice was late and the decision-maker must consider whether the delay resulted from a reasonable cause under s 53(3). The Tribunal accepted delayed appreciation of seriousness in this case. The judgment does not establish that the same explanation will always be accepted; the statutory question was decided in the context of Mutton's evidence and circumstances.
The case also provides an example of an objection to expert evidence based on a disputed factual assumption. The Tribunal examined whether the assumption was explicit and whether it affected the opinion actually relied on. That part may be pertinent where a report's factual basis is challenged, but the reasons expressly note that the cited authorities and the Tribunal's approach were assessed in the setting of the particular reports before it.
How later courts have treated it
The judgment supplied for analysis contains no citations to later decisions treating Mutton and Linfox Armaguard Pty Ltd. It therefore does not show whether a later court or tribunal followed, applied, distinguished, criticised or overruled it. Any claim about subsequent treatment would require sources beyond this judgment.
Within its own reasons, the Tribunal referred to earlier authority on expert evidence. It discussed Makita and observed that the approach's apparent stringency had been mitigated in later decisions, referring to Sydneywide Distributors and ASIC v Rich. It also referred to HG v R in recounting the quoted discussion in Red Bull. Those references concern the Tribunal's expert-evidence analysis; they are not later treatment of this decision.
The safest description from this source is that Mutton is a fact-specific AAT decision applying the statutory notice and impairment provisions and assessing medical and lay evidence together. The judgment itself does not claim to establish a binding precedent for courts or tribunals, and its discussion of Makita expressly notes that Makita was persuasive rather than binding on the Tribunal.
Still-open questions
The judgment leaves unresolved how the same reasonable-cause question would be decided on materially different evidence. It accepts that Mutton did not appreciate the seriousness of the condition until he saw Dr Kirsh, but it does not define the limits of reasonable cause or explain how other explanations for delay would be assessed.
The medical evidence could not identify when the full tear, or any earlier partial tear, occurred. The Tribunal found that a partial injury in August 2006 was more likely than not, but the reasons do not resolve the precise progression of the shoulder condition or quantify the contribution of prior pathology. The experts' differing opinions remained relevant to the factual assessment.
There is also no general resolution of how much weight should be given to an expert report where one assumed fact is inaccurate. The Tribunal found that the second report stated the assumption it used and that the first report's possible defect had no practical effect. A case where the disputed assumption materially drove the expert's conclusion might require a different analysis.
Finally, the supplied text gives no subsequent procedural history or later case treatment. It cannot establish how the decision has been used since 2010 or whether later legislative amendments changed the provisions relevant to other claims. The reasons specifically applied the pre-amendment injury definition because of the date of Mutton's alleged injury.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Judgment (70 paragraphs)
[1]
Mutton and Linfox Armaguard Pty Ltd [2010] AATA 405 (1 June 2010)
The decision under review is set aside, and a decision substituted that that the Respondent is liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 for the injury suffered by the Applicant on 25 August 2006.
[4]
WORKERS COMPENSATION - Employees of eligible corporations - work-related injury resulting in incapacity of employee - credibility of Applicant's account of medical history - requirement that expert reports disclose assumed facts on which opinion is based - requirement that facts on which report is based be proven - requirement that notice of injury to employer be within a "reasonable time" after its occurrence - where failure to report injury due to a "reasonable cause"
Mr Trevor Mutton suffers from a serious shoulder condition - a torn rotator cuff - "right supraspinatus tear/ bicipital tendonitis". He claims that he injured his right shoulder while employed as a security guard with Linfox Armaguard Pty Ltd in August 2006. Twelve months later, he made a claim in respect of the alleged injury under s 14 of the Safety, Rehabilitation and Compensation Act (1988) (the Act), which was refused. On review by Armaguard, that decision was affirmed.
Mr Mutton now seeks review of that decision by the Administrative Appeals Tribunal.
Armaguard argues that the Tribunal could not be satisfied to the requisite standard that the injury occurred in the manner alleged. It argues that in any event, it is not liable for the alleged injury as Mr Mutton did not report it in writing "as soon as practicable" as required by the Act.
[11]
By virtue of s 14 of the Act, Armaguard is liable to pay compensation in accordance with that Act in respect of any "injury" suffered by Mr Mutton if it "results in" impairment or incapacity for work.
The expression "injury" was defined by the then s 5 as meaning:
[12]
(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) ...
[13]
(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.
[14]
... any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
[15]
Whether Armaguard is liable under s 14 of the Act for Mr Mutton's alleged injury turns on four main issues:
(i) Did he sustain an "injury" to his right shoulder on 26 August 2006?
[16]
(ii) If so, did it, result in incapacity for work (s 19) or impairment (s 24)?
(iii) Did Mr Mutton give written notice of alleged injury "as soon as practicable" after he became aware of the injury?
(iv) If not, by the operation of s 53 of the Act, does the Act not apply to the injury?
.
[17]
Mr Mutton was employed by Armaguard as a security guard from 1994 until his employment was terminated in January 2007. His tasks included delivering and collecting cash to and from Armaguard customers. In this role he was required, among other things, to carry bags of coin which could weigh up to 20 kilograms.
Mr Mutton sustained a number of injuries in the course of his employment. These included an incident on New Years Eve 1999 at a Red Rooster store in which he slipped on some fat, injuring his back and burning his right arm. That injury was the subject of consent orders made by the Compensation Court of NSW in respect of a 15% and 5% permanent impairment of Mr Mutton's back and neck, respectively.
Mr Mutton has suffered from chronic back pain since at least the time of that accident.
[18]
Mr Mutton testified that around lunchtime on Friday 25 August 2006, while unloading bags of coins onto a loading dock at Woolworths, Rockdale, he felt a "stabbing" pain in his right shoulder and exclaimed "shit that hurt!". He claimed he managed to complete his shift with the help of pain killers and the assistance of co-worker, Mr Wayne Lowman, who took over all lifting that day. On return to the depot at about 8 pm, on his account, he asked supervisors, Ms Carol Daye and Mr Michael Pearson for the incident book, and was told it could not be found. He claimed that they were not particularly helpful and appeared eager to go home.
In a statement dated 25 June 2008, Mr Lowman stated that he recalled an incident when Mr Mutton "complained of suffering pain during the course of lifting bags of coin from a transfer safe on an Armaguard truck up on to a loading dock". He could not recall when the incident occurred, but thought it happened when Mr Mutton was lifting bags of coin from a transfer safe on an Armaguard truck up and onto a loading dock at Woolworths. He also recalled Mr Mutton saying words to the effect "that hurt" and responding "I'll do the rest". He was summoned to give evidence, but did not answer the summons.
Mr Mutton was not rostered to work over the next two days. He claimed that when he woke the next morning, a Saturday, he had "significant pain in his right shoulder and back". He rested and took pain killers. He claimed that the next day, he was overcome by excruciating pain while walking to the shops with a friend. He described the pain as "a spasm through my shoulder... shooting up and down my arm". His wife was called and drove him home.
Mr Mutton's GP, Dr Alvin Lim, was summoned and visited him at home. He gave Mr Mutton a shot of Morphine to control the pain, and told him to visit his surgery the following day. Dr Lim's clinical notes were tendered in these proceedings and are difficult to read. With the exception of the symbol/letter before the word "shoulder", the parties agree that the entry for 27 August 2006 reads:
[19]
Woke up yesterday lower back pain. Took Voltaren and Panadol. Worse today tried walking to shops. Sweaty, SOB [shortness of breath] → LBP [lower back pain]. ® [not agreed] shoulder. Blocked (?) nose. No radiating pain down legs [illegible]. Intramuscular Morphine 10 mg stat + Maxolon 10 mg stat. [illegible] was working overtime on 25/8. Lifting money bags.
[20]
In evidence-in-chief, Mr Mutton said his back and shoulder were sore when he was walking to the shop. In cross-examination, he described the pain as extending from the base of his neck, down his arm to just above the elbow. He said that when he saw Dr Lim, the pain was "shooting everywhere".
The following day, Dr Lim gave Mr Mutton a script for Panadeine Forte and a medical certificate. According to Mr Mutton, his symptoms had settled to a degree by that time. Dr Lim recorded:
[21]
Now doesn't want (?) w/c. Seeing Eric Ambler [osteopath]→ MC 28/8. [illegible]
[22]
According to Mr Mutton, he was advised by Dr Lim to "put this through workers compensation" but decided not to because "it was too much trouble...no one cared". The visit to the osteopath had apparently been prearranged, and was part of an ongoing course of treatment Mr Mutton had been receiving for his back.
Mr Mutton said that when he rang Armaguard to advise that he would not be in on account of "shoulder pain", he was told "who cares". In a leave form completed for that day, under the heading "type of leave", Mr Mutton wrote: "Sick...W/C [workers compensation]".
On Mr Mutton's account, when he returned to work the next day, a Tuesday, he felt "so so" but "got on with it". He said that by Thursday of that week his condition had deteriorated, and he was forced to take another day off. In the leave form submitted for that day, under the heading "type of leave", Mr Mutton wrote "sick" and "W/C" but crossed out the latter. He said he crossed out the reference to workers compensation because he did not want the trouble of "filling out the paperwork".
He said from that time on until he left Armaguard, he avoided lifting and worked either as a "snooper" - following the Armaguard truck in a security vehicle - or as the "third man" onboard the truck. He said that he was not required to lift as a "snooper", and that he negotiated with his colleagues to take over his lifting duties when he worked as a third man.
According to Mr Mutton, he was troubled by shoulder pain for the remainder of his time with Armguard but "just lived with it". He claimed that his shoulder often bothered him at night and he had difficulty sleeping. The latter was corroborated by his wife.
Mr Mutton was not placed on suitable duties or a rehabilitation program after the alleged injury. He did not give written notice of the alleged injury until September of the following year.
Mr Mutton denied injuring his shoulder after August 2006. There is no record of any shoulder injury during this period in the medical records filed in these proceedings.
[23]
HISTORY GIVEN OF SUBJECT INJURY BEFORE CLAIM MADE
[24]
In the eight months following the alleged incident, Mr Mutton saw Dr Lim on nine occasions. Dr Lim's notes are, as mentioned, difficult to decipher. The parts that are legible make no mention of any shoulder problem.
Dr Lim died suddenly in July 2007. On 15 August 2007, Mr Mutton saw a second GP, Dr Selahittin Faydaver, reporting symptoms of influenza, and mentioned that he had a niggling shoulder problem. Dr Faydaver's clinical notes record "right shoulder pain for six months" [emphasis added]. Mr Mutton was referred for X-rays. Two days later, Mr Mutton was told that the X-rays revealed "full thickness tear at right supraspinatus tear and biscipital tendonitis". Dr Faydaver recorded:
[25]
Discussions about implications re work cover will talk to previous employer re work cover issue, if it is change to work cover.
[26]
Around this time Mr Mutton also saw a third GP, Dr Vinh Giang, who had taken over Dr Lim's practice after his death. Mr Mutton said that he decided to see Dr Giang as the practice held all his records. In a clinical note dated 25 August 2007, Dr Giang recorded:
[27]
Security guard
Fell in 2000 and injured back.
Also injured right shoulder
Made a claim for back and was paid out but continue [sic] to be covered for medical expenses
However no claim was made for his right shoulder
Recently had an ultrasound of his shoulder which showed full thickness tear of the suprspinatus muscle
Feels weak in the shoulder
[28]
Dr Giang saw Mr Mutton again on 4 September 2007. He recorded:
[29]
Has had this pain [in the anterior aspect of the right shoulder] for 4-5 years. Did not think much of it continued working.
However recently pain in the right has been getting worse.
Very adamant that the pain started while working with Armourguard [sic] - repetitive lifting of coin bags
Have not injured shoulder or done anything which may result in straining right shoulder since left Armourguard.
[30]
Dr Giang saw Mr Mutton a week later (13 September) and recorded:
[31]
Long discussion with Kelly [claims officer] at Armourguard [sic] who request that all information needs to be put through and also fitness for work box needs to be ticked otherwise unable to process claim.
Explained to Kelly that he did fall while on duty a few years ago but did not put claim about the shoulder. Instead continued to put up with the pain. At that time it was only mild. It wasn't until recentlyat [sic] his right shoulder pain became worst and had an ultrasound which confirmed full thickness tear. He can't think of anything that could have brought on the injury except the that work he did with Armourguard.
[32]
Mr Mutton was referred to orthopaedic surgeon, Dr George Kirsh, by both Drs Giang and Faydaver. In a short report dated 31 August 2007, Dr Kirsh wrote:
[33]
[Mr Mutton] feels that it [right shoulder pain] has been at least 5-6years and it is weak. He landed on his shoulder while working in 2000 on New Year's Eve when he slipped on some fat. He was carrying coin at the time for Armaguard.
[34]
According to Mr Mutton, as soon as he mentioned he had worked for Armagurd and injured his shoulder Dr Kirsh said:
[35]
I've seen it before - you need an operation - a rotator cuff or something
[36]
Dr Kirsh's clinical notes of that consultation are brief and mention the 1999 injury but not the subject injury. When asked why he told Dr Kirsh about the New Years Eve injury, Mr Mutton said "it just came into my head". He denied telling Dr Kirsh that he had injured his shoulder during that incident.
In a supplementary report dated 4 March 2010, Dr Kirsh wrote that he felt that Mr Mutton originally injured his right shoulder during the Red Rooster incident "as he described to me on 27.8.07". He wrote:
[37]
He may well have been mistaken with regard to the injury that he had, and the burn just before New Years' Eve 2000 may have been the one he is describing. Only he can answer that question and I can only rely on the notes that I have in front of me.
[38]
The first reference to the alleged 2006 injury to appear in any medical report or note - apart from that made by Dr Lim on 27 August 2006 - is the report prepared by orthopaedic surgeon, Dr Donald Faithful, who saw Mr Mutton at the request of the respondent's insurer on 25 October 2007. The history recorded by Dr Faithful is broadly consistent with that given by Mr Mutton in these proceedings of injuring his shoulder on 25 August 2006 while picking up coins. Orthopaedic specialists, Dr James Bodel and Professor David Sonabend also saw Mr Mutton after he lodged his claim, and like Dr Faithful, took a history consistent with that given Mr Mutton in these proceedings.
In a report dated 26 February 2010, provided at the request of CGU (Armguard's insurer on risk at the time of 1999 injury), Dr Giang wrote:
[39]
Trevor first presented to me on 28/08/07 with shoulder pain and weakness of the same arm. He also brought with him an ultrasound of the right shoulder which reported a full thickness tear of the supraspinatus tendon and bicipital tendonitis. During this consultation he confided that this pain has been present for many years. Initially the pain was only mild and Trevor didn't think much of it to report to his employer. He attributed the pain to repetitive lifting of coin bags, which he thought was a normal thing. He took simple analgesia to ease the pain. On 25/8/06 while carrying coin bags he noted his right shoulder became significantly worse together with lower back pain. Dr Lim saw him 2 days later and gave him a morphine injection. Trevor continued to experience pain on most days, worse during the night time. Even up to this day after retiring from Armaguard he continues to experience right shoulder pain...
[40]
In oral evidence, Mr Mutton initially denied having had any shoulder problems before August 2006 or having any shoulder symptoms after the 1999 injury.
In an undated statement prepared for these proceedings and filed on 13 May 2008, Mr Mutton stated that he suffered from "right hand burn, some right shoulder pain and back pain" after falling at Red Rooster on New Years Eve 1999. He characterised the pain after the 1999 slip as rising to three on a scale of one to ten. He said the pain was "inconsistent" and that he could lift his arm above shoulder level without pain.
In his compensation claim lodged with Armaguard in September 2007, Mr Mutton stated that he injured his "right shoulder/upper back". In answer to a request for particulars of any other injuries, he wrote:
[41]
I have had various injuries involving my whole back and shoulders while performing my duties with Armaguard mainly from lifting and carrying coin bags to clients. This has occurred between 1996-2006 inclusive.
[42]
When taken to these documents in cross-examination, he said the reference to right shoulder pain in the claim form and statement had been a mistake. He asserted that he did not have any shoulder pain before the August 2006 incident. Later in cross-examination, he explained that he meant that he had had no pain in the "top of the shoulder" - the base of the neck running down to above the elbow "wing", not the shoulder blade or wing. He said he used the term "shoulder" to refer both the top of the shoulder and the shoulder blade.
Mrs Mutton testified that her husband had not complained of shoulder pain before the 2006 incident. When taken to the reference in the claim form to pre-existing shoulder pain, which she had typed, she gave a similar explanation to that provided by her husband: that is, it was a reference to the shoulder blade, not the top of the shoulder.
Mr Mutton had reported shoulder blade symptoms before the 2006 alleged injury. In a report dated 16 January 2001, he referred to "upper back pain" resulting from the 1999 injury, and noted that on 15 March 2000 Mr Mutton had developed "sharp pain between his scapulae [the shoulder blade or the flat triangular bone in the back of the shoulder] radiating to his left arm". In 2005, Mr Mutton was assessed by occupational physician, Dr T Mastroianni, following a back aggravation. In a report dated 10 March 2005, Dr Mastroianni wrote that Mr Mutton reported pain "mainly in the low back and to the right side but sometimes it affects the dorsal spine in the lower segment and to the top between the shoulder blades".
[43]
HISTORY GIVEN BY MR MUTTON ABOUT THE 1999 INJURY
[44]
As noted, Dr Kirsh recorded that Mr Mutton had injured his shoulder in the 1999 incident. Dr Giang, in a report dated 8 March 2010, recorded "During [his initial] consultation [Mr Mutton] confided that this pain has been present for many years". Dr Faithful took a history of Mr Mutton injuring his right shoulder during the 1999 incident and of having no further problems apart from "aching on and off with strenuous usage". Dr Bodel does not expressly state whether Mr Mutton told him he had pre-existing shoulder problems. He wrote - "symptomatically he had been without symptoms prior to the event [the subject injury]". Professor Sonnabend wrote that Mr Mutton denied any history of right shoulder injuries.
[45]
CHALLENGE TO THE ADMISSIBILITY OF DR BODEL'S REPORT
[46]
Armaguard contends that Dr Bodel's opinion (Exhibits A5, A6) is based on an incorrect factual assumption, namely that Mr Mutton stopped work after the alleged injury, and is therefore inadmissible. It cites Makita (Australia) Pty Limited v Sprowles[2001] NSWCA 305; (2001) 52 NSWLR 705 in support.
In that case Heydon JA (as he then was) said at 731-732:
[47]
The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. .... One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved."
[48]
Although Makita v Sprowles, or more correctly the proposed test of admissibility suggested in it by Heydon JA, is often the starting point for a consideration of the admissibility of expert evidence, its apparent stringency has been mitigated in more recent decisions: see for example Australian Securities and Investments Commission v Rich[2005] NSWCA 152; (2005) 218 ALR 764 at 794, and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd[2002] FCAFC 157.
In Red Bull, Branson J also took a different view from that apparently prescribed by Heydon JA in Makita. It will be recalled that Heydon JA laid down a seven-part test of admissibility for an expert opinion, which included a requirement that the facts on which the opinion is based must form a proper foundation for that opinion, and then said:
[49]
If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R[1999] HCA 2; (1999) 197 CLR 414, on `a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise' (at [41]). (Emphasis added.)
[50]
Branson J considered that the requirement that the court be "sure" placed too high a test upon the admissibility of expert evidence. She said at [7]:
[51]
The approach of Heydon JA as set out above is, as it seems to me, to be understood as a counsel of perfection. As a reading of his Honour's reasons for judgment as a whole reveals, his Honour recognised that in the context of an actual trial, the issue of the admissibility of evidence tendered as expert opinion evidence may not be able to be addressed in the way outlined in the above paragraph.
[52]
Her Honour emphasised the need for an approach which tended to place more emphasis on questions of weight than on absolute compliance with the Makita test of admissibility. Rich and Red Bull indicate that there appears to be general trend in the decisions of the superior courts for the tide to recede from the high water mark apparently set in Makita. In any event, while Makita is persuasive, it is not binding on this Tribunal.
The offending passage relied upon by Armaguard is contained in Dr Bodel's first report, dated 17 December 2008:
[53]
After his injury in August 2006 he ceased work ...
[54]
He had minimal treatment at that time and he continued to try to work
In January 2007 he states that he was dismissed from work...
[55]
The above passages are arguably contradictory. However, even if accepted that the first report was based on an inaccurate history, namely that Mr Mutton stopped work after the subject injury, the point raised by Armaguard is somewhat moot. This is because in his second report, Dr Bodel expressly stated that he had assumed, among other things that Mr Mutton returned to work after the subject injury. Even if the opinion contained in the first report was to be given little weight, this would be of no practical consequence as Dr Bodel reached the same conclusion in his latter report, namely that the "injury" was caused by the accident on 25 August 2006, and that report was not infected by the shortcoming about which Armaguard complains.
[56]
All of the experts whose opinions are before us and who have provided an opinion on causation consider that on the basis of the description of the incident provided by Mr Mutton, the shoulder tear was attributable - in part, at least - to the alleged 2006 incident. Dr Kirsh thought the tear was caused by both the 2000 and 2006 incidents, but mainly the latter. Dr Giang thought it possible that the shoulder was initially injured in 2000 and subsequently aggravated by heavy lifting, and that the alleged incident had been a "significant aggravation". Dr Faithful was of the opinion that the effort of picking up a bag of coins would not be sufficient to create a full thickness tear in an otherwise normal tendon, but that it was possible that a pre-existing full thickness tear might have been "slightly increased" by the 2006 incident. Professor Sonnabend thought it possible that the August 2006 incident had caused a small rotator cuff tear. Dr Bodel thought that the 2006 incident was the major cause of Mr Mutton's shoulder problems.
Professor Sonnabend was of the opinion that there was evidence of long-standing rotator cuff impingement but that the tear, or at least a significant part of it, was "relatively recent"; that is, it had occurred after March 2007. He based that opinion on the March 2008 MRI which he considered revealed no significant muscle atrophy and a relatively healthy supraspinatus tendon. He considered that a tear the size of that evident on the MRI would probably have resulted in significant muscle shrinkage within a relatively short period - that is, no more than about 12 months. While not prepared to exclude the possibility that the tear, or at least a significant part of it, was more than 12 months old, he thought this unlikely.
Professor Sonnabend likened the rotator cuff to a bed sheet - over time, an initial small tear could progress into a larger tear, through either a gradual extension of the tear or a large rip. He had no hesitation in concluding that Mr Mutton's tear had been caused by trauma, but could not say whether it had resulted from a single or a series of tears.
Radiologist, Dr James Linklater, reached a different conclusion to Professor Sonnabend about both the degree of muscle atrophy and the age of the tear. He described the degree of muscle atrophy evident on the MRI as "moderate" and believed it to be consistent with a tear of "some standing". In his opinion it was not possible to definitively state the age of the tear or its relationship, if any, to the alleged 2006 incident.
[57]
When questioned in these proceedings, Mr Mutton said his back pain started in 1997, and that he had begun having problems with his back as soon as he started at Armaguard**.** He said he had "always had back pain". Dr Lim's notes reveal that he reported back pain dating back until the 80's.
Mr Mutton agreed that he had back pain when he saw Dr Lim on 27 August 2006. He said that shortly after the incident, his back pain had plateaued to its usual state.
[58]
When questioned in these proceedings about why he failed to give written notice at the time of injury, Mr Mutton said there had been no one to help him complete the forms, and that he couldn't be bothered with the paper work. He said he just got on with the job. He also said that it was apparent to him from discussions with his supervisors and their demeanour that reporting incidents was not encouraged.
According to Mr Mutton, he did not lodge a claim until September 2007 because it was not until he was told by Dr Kirsh that he would probably have to have surgery that he appreciated the seriousness of the condition. He denied that the finalisation of his unfair dismissal claim - which was settled shortly before he lodged his claim for compensation - played any role in the timing of his claim, except insofar as he been preoccupied and "stressed out" throughout 2007 due to the twin pressures of the dismissal and of representing himself in proceedings before the Industrial Commission.
[59]
After leaving Armaguard, Mr Mutton secured positions as a bus driver and security guard. In an application completed for the bus driver position, in answer to a question "have you made a made a wcc claim", he wrote, "yes lower back". He answered "no" to the question, "Do you have a disability injury or impairment likely to affect your work...". In a questionnaire completed in respect of the security guard position, he admitted to back and neck pain but not arm or shoulder pain or injury.
Mr Mutton admitted in these proceedings that he had "fibbed" to get the job. When questioned about why he disclosed the lower back injury but not the shoulder injury, he said he knew that there were records of the former which would contradict an omission.
[60]
DID MR MUTTON SUSTAIN AN "INJURY" TO HIS RIGHT SHOULDER ON 26 AUGUST 2006 AS ALLEGED?
[61]
Mr Mutton bears an evidentiary onus of establishing that he injured his right shoulder on 25 August 2006, as alleged. As the summary of the evidence set out above makes plain, there are a number of material inconsistencies in Mr Mutton's evidence. They do not necessarily establish that he is an untruthful witness, as it is trite that human memory is faulty and an individual's ability to recall certain events can be affected by any number of factors. Nor does his admission that he lied to prospective employers about not having shoulder problems establish, as Armaguard urges us to conclude, that all his evidence was untruthful. A person who is sometimes untruthful is not necessarily always untruthful. Nonetheless, these inconsistencies, taken together with clear evidence of Mr Mutton's admission of having acted dishonestly for personal gain, point to the need to exercise caution in accepting his evidence, especially where it is not supported by other independent evidence.
Mrs Mutton's testimony that her husband arrived home on the evening of 25 August 2006 complaining of shoulder pain due to a work incident is corroborative of her husband's claim. While clearly not an independent witness, her evidence cannot be disregarded on that basis alone. However, we are troubled by the similarity in the explanation she gave for the discrepancy between her claim that her husband had not experienced shoulder problems before 2006, and that contained in his statement and claim that the problem was longstanding. Specifically, she used the word "shoulder" to describe two distinct body parts - the "upper shoulder" - from the base of the neck extending down to below the elbow and the shoulder blade. We think it probable, despite her denial, that she spoke to her husband about his evidence while he was under cross-examination. In our view, this diminishes the weight her evidence might otherwise be afforded.
However, even if Mrs Mutton's evidence is ignored, we consider there is sufficient evidence to support a finding that Mr Mutton sustained a work injury on 25 August 2006. This includes the entry in Dr Lim's clinical notes made two days after the subject injury; the WorkCover certificate issued for the first working day after the alleged incident; and the type of leave applied for, for that day - workers compensation.
The more difficult question is whether Mr Mutton's right shoulder was injured during that incident. The sole independent and contemporaneous evidence is the note made by Dr Lim two days after the alleged injury. Other evidence such as the application for leave forms and the statement provided by Mr Mutton's work colleague, while consistent with a claim of right shoulder injury, are not determinative, as neither refers to the body part injured.
[62]
DID THE INJURY "RESULT IN" INCAPACITY FOR WORK OR IMPAIRMENT?
[63]
Section 14 of the Act requires that the subject injury "result in" incapacity for work or impairment.
The term "impairment" is defined to mean "the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function". Whether that malfunction or damage was permanent or necessitated treatment is irrelevant for the purpose of s 14 of the Act. Armaguard properly conceded that if the Tribunal found that Mr Mutton sustained an injury as alleged, the second element of s 14 of the Act would be satisfied - that is, that the injury "resulted in" "damage to, or malfunction of" Mr Mutton's shoulder.
We are satisfied that the subject injury "resulted in" impairment. It is therefore not necessary to consider whether it also "resulted in" incapacity for work.
[64]
DOES THE ACT DOES NOT APPLY TO THE SUBJECT INJURY BECAUSE OF S 53 OF THE ACT?
[65]
Section 53(1) of the Act provides that the Act does not apply in relation to an injury to an employee unless notice in writing of the injury is given to the relevant authority as soon as practicable after the employee becomes aware of the injury. It is common ground that not only did Mr Mutton not give written notice "as soon as practicable" after 25 August 2006, he did not give written notice until September 2007 when he lodged a claim for compensation.
Section 53(3) of the Act provides that where notice of the injury was not given as soon as practicable after the employee becomes aware of the injury, notice shall be taken to have been given under s 53 where:
[66]
(c) the relevant authority would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause;
[67]
It seems to us from the evidence that the reason that Mr Mutton failed to give notice of the injury for close to 12 months was because it was not until he saw Dr Kirsh in September 2007 that he appreciated the seriousness of his condition. In our view, this constitutes a "reasonable cause" for Mr Mutton's failure to give notice "as soon as practicable".
Notice is accordingly taken to have been given under s 53.
[68]
For these reasons, Armaguard is liable for the injury suffered by Mutton on 25 August 2006 under s 14 of the Act.
[69]
I certify that the 87 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton and Dr H Haikal-Mukhtar, Member.
Rehabilitation and Compensation and Other Legislation Amendment Act 2007
Rehabilitation and Compensation Act 1988
Cases Cited (3)
(1999) 197 CLR 414
(2001) 52 NSWLR 705
(2005) 218 ALR 764
AI Analysis
Outcomeappellant
Disposition:
The decision under review was set aside and a substituted decision made that Linfox Armaguard Pty Ltd was liable under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) for Mr Mutton’s injury on 25 August 2006.
Dr Bodel agreed with Professor Sonnabend's assessment that there had been some pre-existing pathology prior to the 2006 injury and that the tear had been caused by a subsequent trauma. He did not specifically comment on the degree of muscle atrophy evident on the MRI, or whether the MRI could provide a clue as the age of the tear.
Professor Sonnabend stated that the symptoms that would probably be experienced by a person with a tear the size of Mr Mutton's would depend on their activities. If inactive, it is likely that their symptoms would be mild. If, on the other hand, they had an active lifestyle and engaged in activities such as carrying washing or shopping bags or driving, he would expect them to be uncomfortable. He thought that if they were to use their affected arm to load coins onto a truck, it would be painful.
According to Professor Sonnabend, it would be unlikely that the tearing of a rotator cuff would be painful enough to necessitate the use of morphine, and he had not heard of it being used for that purpose.
Apart from that made by Dr Lim, there is no mention of the 25 August incident in any of the reports or clinical notes prepared by those practitioners who saw Mr Mutton before he made a claim for compensation in September 2007 - Drs Faydaver, Kirsh and Giang. The history recorded by Dr Faydaver of pain starting "six months ago" sits least uncomfortably with Mr Mutton's claim of injuring his shoulder in August 2006. It places the date of onset of symptoms in early 2007 - about six months after the alleged incident. His claim that he told Dr Kirsh about the New Years Eve 1999 injury because "it just came into my head" is simply implausible, especially given that he gave a similar history to Dr Giang around the same time.
Dr Faithful, who saw Mr Mutton in October 2007, is the first practitioner apart from Dr Lim to refer to the alleged incident in a note or report. All experts who subsequently assessed Mr Mutton recorded a history consistent with that he gave in these proceedings. Mr Mutton has not provided an explanation to account for the inconsistent history given to practitioners.
The medical evidence is of limited assistance in resolving this evidentiary conundrum. All of the doctors who have assessed Mr Mutton and offered an opinion on causation accept that lifting in the manner he described could have resulted in at least a partial tear of the rotator cuff. Their opinions are of course based on the history given, and their value is thus dependent on the veracity of Mr Mutton's account. Nor is the radiological evidence conclusive. Professor Sonnabend and Dr Linklater agree that it cannot pinpoint the date the tear or tears occurred. While Professor Sonnabend was of the opinion that it was unlikely that a significant part of the tear had occurred before March 2007, he thought it possible that a partial tear had occurred in August 2006.
The parties dispute both the content and significance of the clinical note taken by Dr Lim on 27 August 2006. Counsel for Armaguard submits that it is of limited value as first, it is unclear which shoulder was referred to; second, it does not link the shoulder to work; and third, that even at its highest, it provides scant support for Mr Mutton's claim that he injured his shoulder. We do not share Counsel's misgivings about the content of the note. Having carefully examined the disputed entry together with all of Dr Lim's notes, we are satisfied that the symbol that preceded the word "shoulder" was the letter "R", which should be read as a shorthand entry for "right". As Counsel for Armaguard points out, the note does not expressly state that Mr Mutton injured his shoulder at work, but nor does it expressly state that he injured his back at work on that day. There is nothing on the face of the note to suggest that "lifting moneybags" caused an injury to the back but not the shoulder, or vice a versa. Nor does it indicate that Dr Lim was told that some other factor or incident triggered Mr Mutton's back and/or shoulder symptoms.
Counsel for Armaguard also argues that the episode of acute pain experienced by Mr Mutton which necessitated his GP being called out was consistent with a flare up of his long-standing back condition. We agree. The circumstances in which the onset of acute symptoms occurred (namely during a short walk), the report of Mr Mutton waking with "lower back pain" the previous day, and Dr Lim's decision to administer Morphine are consistent with an attack of severe back pain. However, that fact is not incompatible with a finding that Mr Mutton was also experiencing shoulder pain, and nor has it been suggested by any of the practitioners whose opinions are before us.
As we have noted there are a number of material inconsistencies in Mr Mutton's evidence. Because of this, the strength of his claims is considerably diminished. Bearing in mind that it falls to him to establish that he sustained an injury in the manner alleged, this makes drawing an appropriate conclusion somewhat difficult. Nevertheless, we have concluded that it is more likely than not that he received an injury to his right rotator cuff on 25 August 2006 for the following reasons.
First, the objective evidence demonstrates that he suffered a rotator cuff injury at some time. Second, the expert medical evidence is that such an injury can commence as a relatively small tear which is aggravated over time. That evidence is generally consistent with Mr Mutton receiving an injury in August 2006. Third, all practitioners who have provided an opinion on causation are of the opinion that the lifting incident as described by Mr Mutton could have resulted in at least a partial tear of the rotator cuff. Fourth, Mr Mutton's workmate confirmed that he had complained of an injury on the day they unloaded coins in a Woolworths loading dock and that he stepped in to take over the lifting of the coins. Fifth, Mr Mutton's claim that he avoided lifting duties after the accident is uncontradicted. The inability to lift coin bags is consistent with the type of injury which is the subject of this claim.
Sixth, and most significantly, Dr Lim's clinical note made two days after the alleged injury is consistent with Mr Mutton's claim that he told Dr Lim that he had injured his shoulder at work. That is the most rational explanation of that recorded history.
Finally, there is Mr Mutton's explanation that he had not reported the injury at the time of or shortly after it occurred. While the reasons stated - that he did not think it was a very serious injury, that he was concerned that his actions would be frowned upon by management, and that he could not be bothered with the associated paperwork - demonstrate an undesirable attitude, they are nevertheless reasonably plausible.
We are satisfied that as alleged, Mr Mutton suffered an injury to his shoulder on 25 August 2006. Given his ability to return to work within a relatively short period and his failure to seek treatment for over 12 months we think it more likely than not that it caused only a partial tear of the rotator cuff.