Napier and Comcare (Compensation) [2017] AATA 1452 (13 September 2017)

1. I note Comcare has conceded that, the Tribunal affirming the reviewable decisions does not preclude the Applicant from making a claim for compensation regarding any of the above forms of treatment, should she suffer a "flare up" or exacerbation of her condition.[36] I consider this concession appropriately made. The Applicant is entitled to lodge fresh claims under s 16 of the Act, as any flare ups arise. Dr Vecchio suggested providing the Applicant with "12 adhoc [sic]... attendances at either professional service" per year.[37] While I am not satisfied that such an approach would be appropriate on the evidence currently before me, I again note that nothing prevents the Applicant from lodging fresh claims, supported by the relevant medical evidence, should there be a "flare up" or exacerbation of her condition. Indeed, it seems to me that those circumstances are precisely where temporary pain-reducing treatments might be reasonable.
2. However, this is not and should not be a consideration in determining whether Comcare is presently liable under the Act: the Tribunal's present jurisdiction is limited to the review of reviewable decisions, which themselves are reviewing determinations made by Comcare.[38] As flare ups were outside the scope of the determination made by Comcare, so too are they outside the scope of the present decision.

ISSUES B AND C: COMCARE'S LIABILITY FOR THE APPLICANT'S RIGHT ROTATOR CUFF SYNDROME

1. Under s 14 of the Act, Comcare is liable to pay compensation to a person if an employee suffers an injury that results in, inter alia, impairment. Relevantly here, s 5A(1)(b) defines injury to mean:

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...

1. From the evidence before me, there can be little doubt that the Applicant is suffering from a right shoulder condition, and that this condition meets the plain meaning of an injury. However, in order to satisfy the s 5A(1)(b) definition, the Applicant must be able to show her right shoulder condition arose out of her employment.
2. Comcare has accepted liability for conditions relating to the Applicant's left arm and shoulder.[39] The Applicant has argued that her right shoulder condition is related to her left arm conditions because she compensated for the issues with her left arm by overusing and straining her right arm and shoulder.
3. This argument is supported by Dr Jones in a report dated 19 May 2015, where he described the Applicant's right shoulder condition as "secondary to overuse of her Right arm to compensate for the dysfunction of her Left dominant arm."[40] On 24 July 2015, Dr Jones further noted "[h]er right shoulder rotator cuff syndrome is not unexpected given her need to over-use her non-dominant arm because of the impairment in her Left arm."[41]
4. An alternative explanation, endorsed by Comcare,[42] was put forward by Dr Vecchio in a report dated 4 December 2014, where he noted:

Whilst there may be some connection between the right shoulder discomfort, the increased work flow and the left arm infirmity, the connection is loose. My opinion is that the right shoulder subacromial bursitis would have occurred in any case and independent of the left arm/neck issues.[43]

1. I favour the assessment of Dr Vecchio. Although both Dr Vecchio and Dr Jones are doctors, Dr Vecchio is a specialist who has "spent a year in a Centre of Excellence focusing [on] research and clinical experience on this topic."[44] Dr Jones, meanwhile is a GP. I therefore favour Dr Vecchio's expertise to that of Dr Jones in making these kinds of assessments. Further, Dr Jones himself noted that referral to a shoulder specialist would be needed for "further clarification od [sic, of] shoulder pathology and optimal treatment".[45] Although not an orthopaedic specialist as envisaged by Dr Jones, I am satisfied that Dr Vecchio is a specialist who is sufficiently qualified to give expert evidence in this matter.
2. I therefore find, in accordance with Dr Vecchio's assessment, that the Applicant's right shoulder condition would probably have occurred independent of the issues the Applicant suffers with her left arm and neck. This condition therefore neither arose out of, nor in the course of, the Applicant's employment, and so is not an injury for the purposes of the Act. Comcare is not liable under s 14 of the Act to compensate the Applicant for her right shoulder condition.
3. As the Applicant's right shoulder condition is not an injury for the purposes of the Act, there is no need to progress to Issue C.

1. In summary, I find that Comcare is not liable to the Applicant for:
   • (a) Claimed physiotherapy;
   • (b) Claimed acupuncture;
   • (c) Claimed remedial massage therapy; or
   • (d) Her right shoulder condition.
2. The decisions under review are therefore affirmed.

I certify that the preceding 47 (forty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.....................[sgd].............................................

[1] Exhibit 3, Statement of Ms Susan Napier; Exhibit 10, Respondent's Statement of Facts, Issues and Contentions ("SFIC"), [3.1].

[2] Exhibit 10, Respondent's SFIC, Annexure A.

[3] Exhibit 1, T Documents, PT10, pp 51-52.

[10] Re Jorgensen and Commonwealth [1990] AATA 129; (1990) 23 ALD 321, 325 (Gray J).

[11] [2014] AATA 629.

[12] Alamos and Comcare [2014] AATA 629, [24] (DP Constance).

[13] Comcare v Holt [2007] FCA 405, [25]-[26].

[14] [2000] AATA 264, [28]-[29].

[15] Chowdhary and Comcare [1998] AATA 448, [53].

[16] See e.g. Alamos and Comcare [2014] AATA 629, [32]-[33]; and Durham and Comcare [2014] AATA 753 (SM Ettinger), [56]-[58].

[17] Exhibit 2, Respondent's SFIC, [4.7]-[4.10]; Exhibit 12, Dr Vecchio's Report of 30 November 2016.

[18] Exhibit 13, Report of Mr Papagoras, p 3; Exhibit 10, Respondent's SFIC, Annexure A.

[19] Exhibit 10, Respondent's SFIC, Annexure A.

[20] Exhibit 12, Dr Vecchio's Report of 30 November 2016, p 3.

[21] Exhibit 18, Ms Lynne Arrow's Report.

[22] Exhibit 14, Mr Joshua Lynam's Report dated 9 December 2015.

[23] See e.g. Exhibit 17, Report of Mr Dean Sullivan dated 26 September 2011, [3]; Exhibit 13, Report of Mr Papagoras, p 9.

[24] Exhibit 13, Report of Mr Papagoras, p 9.

[25] Exhibit 17, Report of Mr Sullivan dated 26 September 2011.

[26] Ibid, [4]-[5]; Exhibit 18, Ms Lynne Arrow's Report, [4].

[27] Exhibit 12, Dr Vecchio's Report of 30 November 2016, p 7.

[28] Exhibit 6, Report of Mr Lynam dated 11 April 2016.

[29] Exhibit 13, Report of Mr Papagoras, p 8.

[32] Exhibit 1, T Documents, T 5, p 13.

[34] Exhibit 12, Dr Vecchio's Report of 30 November 2016, p 11.

[36] Exhibit 10, Respondent's SFIC, [4.13].

[37] Exhibit 12, Dr Vecchio's Report of 30 November 2016, p 8.

[38] The Act, s 64; Griffiths and Telstra Corp Ltd [2013] AATA 695, [30].

[39] Exhibit 1,T Documents, PT 10, p 51.

[42] Exhibit 10, Respondent's SFIC, [4.16].

[43] Exhibit 1,T Documents, PT 6, p 36.

[44] Exhibit 12, Dr Vecchio's Report of 30 November 2016, p 9.

[45] Exhibit 1, T Documents, PT14, p 70.