Case: Abrahams v Comcare [2006] FCA 1829 ; (2006) 93 ALD 147
Outcome: considered
In Abrahams v Comcare [2006] FCA 1829 ; (2006) 93 ALD 147 , Madgwick J recognised that different descriptions can be given of the one injury and said at [18] that ' a broad, generous and practical interpretation ' should be made to recognise the understanding of the lay person making the claim and different levels of medical advice and to understand whether the lay person completing it was asserting a different injury to that notified. The Tribunal said that, in applying the principles in Abrahams , it was satisfied that the proper interpretation of the claim made by Mr Sellick was for ' an injury which caused pain in the upper back, which included, but was not limited to, pain in the area of the right scapula '. Accordingly, the Tribunal determined that although Mr Sellick did not then suffer the effects of the soft tissue injury to the right shoulder, it could proceed to consider whether he continued to suffer the effects of the aggravation of the degenerative condition of his spine and the sprain of the interspinous ligament. Based on the views of Drs Griffith and Cassar, the Tribunal found that his duties are likely to continue to aggravate those conditions and to make the conditions symptomatic. 56 The Tribunal accepted that the effects of the injury to the right shoulder had resolved by the date of its decision. While it did not specify whether it had resolved by the date of the reviewable decision, it is implicit from the reasoning that the Tribunal accepted that it had resolved by that time. The basis for the Tribunal's decision was that the use of the V-sort machine also caused the additional conditions. The effects of the additional conditions continued to be present at the date of the decision and, therefore, necessarily present at the date of the reviewable decision. While the Tribunal noted at [55] that Mr Sellick's description of his symptoms was referable to one or both of the additional conditions, it accepted on the basis of the medical evidence as a whole that he suffered from both injuries (at [59]). Contrary to the submissions of Australia Post, the Tribunal's reasons sufficiently explain why it accepted both diagnoses. 57 No accident report or claim was specifically made for the additional conditions as is required by ss 53 and 54 of the SRC Act. If the additional conditions had not been the subject of a notice of injury under s 53, a claim for compensation under s 54, a determination under s 60, a reviewable decision under s 62 and an application to the Tribunal under s 64 of the SRC Act, the Tribunal had no power or jurisdiction to make the decision that it did. Australia Post accepts that, as the Tribunal noted, the medical certificates provided in support of the shoulder claim referred to complaints referable to the upper back and not related to the shoulder. A medical assessment by Dr Chew of July 2004 noted that Mr Sellick suffered from mid thoracic spine pain in October 2002 with no specific injury to account for the onset of his pain. Dr Chew's diagnosis of his then current condition was of soft tissue injury to his mid thoracic spine while carrying out his postal delivery duties, superimposed on constitutional degenerative changes in his thoracic spine. Australia Post accepts that the reviewable decision addressed whether the problems were due to an underlying constitutional disorder not caused, aggravated or accelerated by his employment. However, a mere reference to the spine in some of the medical certificates is, Australia Post says, insufficient compliance with the SRC Act. 60 There is no explanation given by the Tribunal for the conclusion that the injury of October 2002, described as pain in the right shoulder, caused the additional conditions. Even if the claim were for injury to another part of the body that resulted in right shoulder pain, the Tribunal accepted that the effects of that injury had resolved. Unlike Abrahams where the applicant for review described a wrist injury but did not state the correct diagnosis, the injury to Mr Sellick's shoulder had resolved and different injuries were accepted as a basis for liability. The injuries may have arisen out of Mr Sellick's employment with Australia Post (as accepted at [60]) but the Tribunal has not explained how they arose out of the claimed injury in 2002. It is noteworthy that the medical reports of 2002 summarised by the Tribunal were not the ones referred to as supporting the Tribunal's conclusions. 61 Mr Sellick accepts that the Tribunal characterised the additional conditions as injuries separate to the injury to the right shoulder and that it found three separate injuries, all suffered in 2002. He says that the Tribunal at [66] only accepted that Mr Sellick no longer suffered the effects of the soft tissue injury to the right shoulder but continued to suffer pain, including pain in the right shoulder, arising from the spinal injury and the sprain to the interspinous ligament. If that is the case, the Tribunal's reasoning is far from clear. At [52] the Tribunal expressed itself satisfied that ' at present he does not suffer the effects of ' a soft tissue injury to his shoulder but was satisfied that, at the date of its decision, he ' continues to suffer, pain in the mid-upper back as a result of an aggravation of the condition of degenerative cervical spondylosis and/or a chronic sprained interspinous ligament '. That is, the only ongoing pain as at the date of the Tribunal decision was in the mid-upper back and not in the shoulder. 62 Dr Cassar's report noted that the claimed injury was ' right shoulder girdle injury '. He referred to association with the cervical spine. Changes to a minor degree noted in the upper thoracic spine were, in his view, unrelated to employment but aggravated by ' persisting work necessitating constant above shoulder work...as well as work necessitating repeated lifting of full postal bags weighing in excess of 10kg '. Dr Griffith referred to cervical spondylosis which was not work related with "minimal changes" in the thoracic region and said that it was "likely" that the use of the V-sort ' aggravated the symptoms from which he now suffers '. Dr Griffith's prognosis was of cervical and thoracic spondylosis with periodic exacerbations and remissions ' irrespective of activities in the workplace '. He was also of the view that pre-existing degenerative changes would have been rendered symptomatic by activities in the workplace. While each report linked Mr Sellick's work activities and the pain in the mid-thoracic spine, they did not explain the connection with the claimed injury. 70 In circumstances where all pain resulting from the injury ceased when Mr Sellick ceased duties and the claimed injury causing pain in the right shoulder had resolved, the Tribunal did not give reasons for its conclusion that the additional conditions, which it accepted to be different injuries but work-related, were caused by or connected with the claimed injury. This is not a case, like Abrahams , where the medical diagnoses differently described the same injury as that claimed. The way that Mr Sellick described the pain in his shoulder did not limit the relevant injury only to the right shoulder. However, the claim was for an injury that covered pain in the right shoulder. The Tribunal accepted that both the pain to the shoulder and injury to the shoulder had resolved. The Tribunal did not explain how the additional conditions that continued after the shoulder pain resolved were related to the claimed injury of shoulder pain.