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Accident Compensation Cases

Adair v Accident Compensation Corporation (ACAA, 06/06/12)

Judgment Text

R Bedford Member
At issue in this appeal is the Corporation's decision of 15 February 1985, ceasing the appellant's Earnings Related Compensation (ERC) on the basis that it was considered that he was then able to return to his normal work as a laundryman. 
The notice of appeal is no longer available, but Mr Bell's memorandum dated 14 November 2010 advises that the appellant seeks orders quashing the decision and reinstating Earnings Related Compensation (ERC) as from 8 March 1985. 
The grounds for the appeal are that the appellant was not fit to return to work on 15 February 1985 and that his ongoing incapacity was due in part or in full to injuries for which he had cover. 
On 8 September 1983, the appellant, then aged 41 years old, was injured while working as Head Laundryman/Laundry Supervisor at the Sunnyside Hospital in Christchurch, when he lifted a bag of wet salt weighing at least 224 lbs from a pallet on the floor up to around head height, so that he could tip it into a brine tank. The appellant twisted just as he was about to empty the bag. He felt a sudden “crack” in his right arm, with immediate swelling on the upper arm, and pain in the upper arm and shoulder. 
The appellant was taken to Christchurch Hospital's A & E Department, where he was diagnosed as suffering from a probable rupture of his right bicep. He was given physiotherapy for the injury, and returned to work after a total of three days treatment. At that stage he was certified as fit for light duties. His arm initially started to improve, but remained weak and he suffered ongoing pain and limited movement, and he subsequently found that his arm and shoulder were so weak, he had to work one-handed and rely on other staff to cover for him when heavy lifting was required. 
Over 1983/84 staff numbers reduced, then the laundry was merged with another hospital laundry and there were no light duties available on the re-organised job. The appellant's boss could see that he was not coping and advised him to see his doctor and apply for ACC. The appellant consulted his GP, Dr Sheldon, who certified the appellant as unfit for work.1
| X |Footnote: 1
Affidavit of appellant sworn 1/12/10 
The Corporation accepted that the appellant had torn his right biceps and was fully unfit for work because there were no selected duties, and paid him ERC from 20 August 1984.2
| X |Footnote: 2
ACC memorandum 3/11/90; submissions for appellant paragraph [2] 
On 30 November 1984, Mr W A Liddell, Orthopaedic Surgeon, reported to the Corporation that the appellant suffered from a ruptured long head of the right biceps muscle and that he was not fit for any heavy work. Mr Liddell said he would like to see the appellant again in six weeks time, because he was concerned about the marked functional overlay and wanted to know him better before making the decision to offer him surgery.3
| X |Footnote: 3
Report W A Liddell/ACC 30/11/84 
When the Corporation required a further specialist report the appellant was seen by another orthopaedic surgeon, Mr A B Mackenzie, for a permanent disability assessment under ss 119 and 120 of the Accident Compensation Act 1972, and further comment on the appellant's incapacity to work.4
| X |Footnote: 4
Submissions for appellant paragraph 25 
Mr Mackenzie agreed with Mr Liddell's diagnosis, but said that the appellant's injury was a minor consideration which shouldn't affect his work, and that it was “only being used as a work excuse”. He assessed the appellant as having a 5% permanent disability under s 119 and recommended only a minor payment under s 120.5
| X |Footnote: 5
Report A B Mackenzie/ACC 5/2/85 
On 12 February 1985, the ACC claims clerk asked the Claims Supervisor (the CS) if the appellant's claim should be declined in light of Mr Mackenzie's report, or whether ACC should wait for a notional earnings assessment. The Regional Medical Officer (the RMO) was asked to review the file because the CS felt that after 24 weeks of ERC, ACC's responsibility was about at an end and Mr Mackenzie felt that the injury should not affect the appellant's work. The RMO agreed that the appellant should be fit for full work as Mr Mackenzie indicated.6
| X |Footnote: 6
ACC memoranda 12/2/85 
On 15 February 1985, the Corporation ceased the appellant's ERC from 9 March 1995, on the ground that the medical information obtained from Mr Liddell and Mr Mackenzie, indicated that he should now be able to return to his normal duties as a laundryman. No award was made under ss 119 or 120.7
| X |Footnote: 7
Letter ACC/appellant 15/2/85 
In September 1985, Dr Sheldon wrote to the Corporation to request a late review and a second opinion, based upon Mr Liddell's report. Dr Sheldon said that the appellant had quite marked reduction in his work capacity because of his torn biceps and that Mr Mackenzie may have underestimated the extent of the appellant's incapacity.8
| X |Footnote: 8
Letter Dr W L Sheldon/ACC 13/9/85 
The letter was accepted as a review application, but the second opinion request was not acted on. The Review Officer accepted Mr Mackenzie's opinion that the appellant's type of injury should only incapacitate him immediately after the injury and that the appellant should be able to work by February 1985, when the injury happened in 1983. Also, other factors appear to have played their part, and the medical evidence did not support the appellant's claim that he was severely disabled. For these reasons, the application for review was declined.9
| X |Footnote: 9
Review decision 11/3/86 
On 24 February 1988, Mr Graham Inglis, Orthopaedic Surgeon, assessed the appellant for the Corporation as having 5% permanent functional disability as a result of the original injury, and recommended a minor degree of compensation under s 120, which was duly paid under ss 78 and 79 of the 1982 Act.10
| X |Footnote: 10
Report G Inglis/ACC 24/2/88 
The Corporation also paid for the surgery Mr Inglis carried out on 3 January 1991 to correct the appellant's significant shoulder impingement, which he had diagnosed in addition to the right biceps rupture previously identified.11
| X |Footnote: 11
Clinical notes G Inglis; ACC memorandum 3/11/90 & submissions for appellant paragraph [28]. 
The appellant has not worked since his ERC was ceased in February 1985, and has remained on either the invalid's benefit or the sickness benefit. 
Medical Evidence of Incapacity 
Mr Liddell recorded the appellant's description of accident and follow up, and that he continued on at work until August, when he was really unable to carry on with his ordinary duties. He was not only expected to act as Supervisor, he also had to be fairly active and do a lot of heavy work he could not cope with. Mr Liddell noted a reported lack of strength for propping and pulling backwards with the arm and elbow straight, and that the appellant could not use the arm for stirring of materials and chemicals in the laundry. 
Mr Liddell examined the appellant and recorded his gross overweight and the obvious functional overlay showed in using his elbow when he was asked to perform simple flexing and extending, but despite this, when Mr Liddell got the appellant to relax, there was some definite weakness for strength and flexing the elbow, and palpation showed that the biceps muscle showed a softness and bulging, and clear evidence of a ruptured long head of the biceps muscle.12
| X |Footnote: 12
Report W A Liddell p 1 
Mr Liddell thought there were more problems than were immediately obvious, and noted that the appellant was able to return to work within three to four days, but that after a year he went off work because he was unable to do the heavy duties and the Canterbury Hospital Board could not employ him on selected duties because of economic problems. Also, the ruptured biceps would have given him more problem initially than it should in this late stage. 
Mr Liddell discussed the impact of the injury: 
“Usually however, this problem is apparent in a much older age group and generally it is said that it leads to very little disability. This is in fact not true. In those people in whom it occurs there are degenerative problems in the rotator cuff of the shoulder and there is a built in disability here that prevents the arm from being used heavily or strongly. The ruptured biceps may be painful initially but usually settles down. The strength of the arm is slightly less but this usually depends more on whether pain persists or not. 
In a younger person strength is important and one would have to admit that there could be some persistent weakness for the heaviest of duties. Whether or not this is remedial is another matter. By this I mean that at an early stage in a younger person it is reasonable to repair the tendon or at least to attach it firmly to the humerus to prevent the bunching up of muscle which tends to be annoying when the arm is used strongly. 
This man has other problems in relation to his marriage which could have some effect on his approach to his problem. 
… There was no doubt at all when I first examined him that there was a very marked functional and almost hysterical overlay but this did disappear with careful handling.. 
I think it would be reasonable to see him again after an interval. Mean time it would have to be accepted that he is not fit for any heavy work. I would really like to see him and talk to him at length and to give him a chance to show a proper and adequate response to his injury and his disability.13
| X |Footnote: 13
P 2 & PS at p 3, for request to see appellant in 6 weeks time 
Mr Mackenzie said that he was in complete agreement with Mr Liddell's diagnosis, as the appellant's history was in keeping with such a tear, but he had a quite different view of the ongoing impact of a torn biceps muscle, which he thought frequently goes unnoticed by the patient and gives remarkably little, if any, disability subsequently. Mr McKenzie did not record any examination findings, except to say that he could not see the bulging observed by Mr Liddell, which he put down to the appellant's huge build, but said that nevertheless, palpation of the right upper arm did demonstrate a small rent. 
Mr Mackenzie noted that the accident happened in 1983 and the appellant returned to work for another year or so, but said that the appellant was at the moment threatened with dismissal from his job for reasons that Mr Mackenzie suspected were unconnected to his injury. He mentioned the appellant's “domestic problems, again associated … with other matters”, his not being able to cut it at snooker, his gallbladder and the need for related surgery, which he would have if his weight came down.14
| X |Footnote: 14
Report A B Mackenzie p 1 
Mr Mackenzie discussed the impact of the injury: 
“As to his biceps muscle and tear in the upper portion, I think this is a minor consideration, I don't think it should affect his work, and I think it is only being used as a work excuse. 
I'm afraid that I would disagree with Mr Liddell and say that I didn't think there was any point in performing surgery to reattach the tendon to the bone, especially in a case which has had a tear some 18 months ago.15
| X |Footnote: 15
Pp 1 & 2 
Mr Inglis did not look at fitness for work, but he diagnosed the appellant as suffering from “Impingement syndrome right shoulder, and [?] Biceps rupture on the right”, as he did not have the Liddell and Mackenzie reports to confirm the biceps injury diagnosis. He described the circumstances of the accident in detail, roughly in line with Mr Liddell's description, but noting that the bag of salt weighed 300 lbs. He recorded that the appellant reported severe pain and discomfort in the region of his right biceps and right shoulder, and that he could not work with his arms in an abducted, elevated position.16
| X |Footnote: 16
Report G Inglis p 1 & top p 2 
Mr Inglis examined the appellant and recorded his findings: 
“Examination reveals a markedly overweight 45 year old gentleman. His right and left shoulder girdles are symmetrical. There is significant tenderness about the subacromial region on the right. He has positive abduction to 90 degrees then suffers severe pain through to about 120 degrees and is unable to go beyond this because of pain. Internal rotation is almost full. Flexion produces a degree of pain though is almost full. He has a significant weakness of biceps on the right compared to the left, supination which is painful. All other movements of the elbow are full and pain free … There are no other features of note.17
| X |Footnote: 17
P 2 
Mr Inglis was not given copies of the previous medical reports, and he said that it was difficult to be precise now what happened back in 1983. Mr Inglis' opinion was: 
“He now has significant weakness in his biceps but no overt changes consistent with a biceps rupture i.e. the biceps contour is normal. He does have significant signs of impingement in the right shoulder. He may well have suffered a rupture of the biceps in 1983 accounting for his present weakness in the right shoulder girdle and biceps. As a result of this he now has a significant degree of impingement in the right shoulder which is his major worry at present. ”
Mr Inglis said that if the appellant lost a significant degree of weight he may be a candidate for decompression of his right shoulder. Mr Inglis re-examined the appellant on 18 September 1990, when he had lost 13 stone and confirmed a severe impingement of the right shoulder. This diagnosis was confirmed again as a result of the surgery he carried out on 3 January 1991.18
| X |Footnote: 18
P 2 
Mr Inglis reviewed the appellant post-operatively and recorded on 28 January 1991 that he had done very well following his surgery, and on 18 February 1991 said that he was regaining good function of the shoulder and it would be worthwhile starting him on a physio programme at Burwood.19
| X |Footnote: 19
G Inglis clinical notes 3/1/91, 28/1/91 & 18/2/91 
Dr Jorgen Schoushoe, Accredited ACC Impairment Assessor, assessed the appellant for an independence allowance on 9 October 2000. The medical condition he assessed was a torn biceps tendon. He discounted any degenerative cause of the appellant's condition, and confirmed that it was not likely to improve. He examined the appellant, and reported normal right hand wrist and elbow functions and measured his limited right shoulder function, which he accepted was caused by the 1983 injury. The impairment rating was increased to 8%.20
| X |Footnote: 20
J Schoushoe, Impairment Rating Report 9/10/00 
On 12 January 2001, Dr D Lovell Smith wrote an instructing letter to Mr Barrie Tait, Consultant Physician in Musculoskeletal Medicine. She set out the appellant's history and stated that he had a significant improvement in movement after the 1991 operation. 
Mr Tait responded on 16 January 2011. Mr Tait described the appellant's then current symptoms and his physical examination findings, and diagnosed his problems as arising from the soft tissues around the right shoulder. In addition, there was significant psychological, social and functional distress, all of which was related to the 1983 injury.21
| X |Footnote: 21
Report B Tait/Lovell Smith 16/1/01, p 2 
On 19 November 2001, Mr Tait assessed the appellant on Mr Bell's instructions, and diagnosed him as suffering from Chronic recurrent pain of musculoskeletal origin following personal injury by accident. Capsulitis right glenohumeral joint (the gleniod is the socket on the shoulder blade into which the humerus fits), possible ruptured supraspinatus tendon and partial rupture of the biceps tendon right shoulder. These were related to the 1983 accident. 
Mr Tait explained the mechanics of the impingement syndrome: 
“The impingement syndrome describes the pain experienced by the patient when he moves his arm through the coronal plane. Over a certain arc — usually between 60 and 100 degrees, pain is experienced when the irritated portion of the rotator cuff — usually the supraspinatus tendon — is caught underneath the edge of the acromion. ”
(i.e. the part of the shoulder blade forming the tip of the shoulder)
In Mr Tait's opinion, the impingement syndrome as diagnosed by Mr Inglis was also caused by the 1983 accident.22
| X |Footnote: 22
Report B Tait/Bell 19/11/01, p 7 
Mr Bell pointed out that Mr Barnett's description of the cause of an impingement syndrome differed from Mr Tait's. From my own research, an “impingement syndrome” is commonly due to repetitive trauma caused by vigorous overhead occupational or sporting endeavours. It can also be caused by degenerative exotoses (outgrowth from the bone), as well as being brought on by wear and tear and overuse.23
| X |Footnote: 23
Shoulder Impingement Syndrome MR Findings in 53 Shoulders (Leanne L Seeger et al) 
The condition can also be caused by a cuff tear, bulging of the supraspinatus tendon causing entrapment, swollen or inflamed bursa, or a calcium deposit which narrows the tunnel the tendon normally passes along, and a curved or hooked acronium can also narrow the tunnel. This results in inflammation and swelling of the supraspinatus tendon, leading to a decrease in space for it under the acromium as it continues to catch, the pain leads to inhibition of the other muscles in the rotator cuff.24
| X |Footnote: 24
Paper by Orthosports Medicine (2009) 
The Law 
Section 59 of the 1982 Act, which is equivalent to s 113 of the 1972 Act, provides:- 
“Where as a result of incapacity due to personal injury by accident, an earner suffers any temporary loss of earning capacity as determined under the provisions of this section … the Corporation shall pay him earnings related compensation in respect of that loss at the rate of 80% of his loss of earning capacity due to the injury. ”
Section 2 defines being “incapacitated” as suffering from total or partial incapacity and “incapacity” has a corresponding meaning. 
Section 2 defines “personal injury by accident” as including the physical and mental consequences of the injury or of the accident. 
As the law stood in February 1985, incapacity was established according to the following factors: 
Can the injured person return to his or her pre-accident employment? Kearney v ACC (CA 164-2009) [2010] NZCA 327
If the injured person is only able to undertake selected work within his occupation and there is no such work available, the taking of redundancy does not disentitle him or her to ERC; Johnstone 113/90 & 246/90
The loss of earning capacity must be due in some measure to injury caused by accident - the injury need not be the only cause of incapacity; Lance v ACC [1990] NZAR 132Has Cases Citing which are not known to be negative[Green] ; and 
The Corporation must take the injured person as it finds him; Riley 4/96
The Appellant's Case 
Mr Bell identified the issue as whether the appellant suffered a loss of earning capacity as a result of personal injury by accident suffered in September 1983, as at 15 February 1985. 
Mr Bell referred to Lance (supra), Johnstone (supra) and Riley (supra) and ss 59 and 2, to support the submission that partial incapacity is enough to qualify, provided that incapacity stems from the covered accident. The key issue was whether the appellant was able to carry out the tasks required of his employment. 
The appellant needed to show that as at March 1985 (when his ERC ceased): 
He was partially or totally incapacitated; 
The incapacity was caused in part by his covered accident; 
He was an earner at the time the incapacity arose; and 
He was suffering a temporary loss of earning capacity as the result of the incapacity. 
The Corporation had relied on Mr Mackenzie's report and the only medical diagnosis at the time was of a ruptured right biceps muscle. There was either no check for any other injury, or none was found, but there were no scans of the appellant's shoulder or arm, and it was only after the appellant finally saw Mr Inglis, that it became clear that he had a major problem in his right shoulder and a severe shoulder impingement was diagnosed and confirmed when Mr Inglis operated in January 1991. 
Mr Bell submitted that as the corporation paid for the operation, it must have accepted Mr Inglis' say so that the shoulder impingement injury had been caused by the 1983 injury, and the later problems diagnosed by Dr Tait were also causally related to the injury. In Mr Tait's clear opinion, the injury had prevented the appellant from working until the present time. 
This, Mr Bell submitted, went to the heart of what the Court has to decide in this case, and that, Mr Tait's opinion was preferable to Mackenzie's, as he was either not aware of, or did not diagnose that the appellant had real problems with his shoulder. The medical evidence supported the appellant, and it was noteworthy that Dr Sheldon stated on 13 September 1985, that the appellant had “ … a quite marked reduction in work capacity due to torn biceps”. Dr Sheldon was surprised by Mr Mackenzie's report and considered that he may have underestimated the appellant's incapacity. 
Mr Bell said that the incapacity suffered by the appellant must logically have prevented him from returning to what was a heavy job, which required the use of both arms for significant lifting or other heavy duties on a daily basis. He only coped with the help of others and his dominant right arm never came back to full strength, and there were no selected light duties to enable him to keep his employment. 
Mr Bell stressed Mr Mackenzie's lack of awareness of the true extent of the appellant's injury, and of the extent of his duties and his heavy job, particularly the lifting. Mr Bell also emphasised the fact that the appellant returned to work very soon after the injury, which could have caused further damage, and Mr Liddell considered that the appellant was incapacitated for work at least as at August 1984 [sic]
Mr Bell relied heavily on the post-1988 medical reports as proving that the appellant's work incapacity persisted, in particular Mr Tait's reports, and his opinion that the 1983 injury incapacitated the appellant from working from then, “up to the present time”. Although the Tait reports were prepared in 2001, Mr Bell urged me to accept them as supporting continuing incapacity on an ongoing basis. 
The Respondent's Case 
Mr Barnett submitted that issue should be confined to the appellant's capacity as at 15 February 1985, and the decision does not preclude a later reinstatement of ERC under the appropriate circumstances. The onus of proof, accepted by the appellant, was for him to show that he had a loss of earnings due to incapacity resulting from the 1983 injury. 
Cover was granted for a torn biceps muscle, there was no diagnosis of any other injury, nor was it suggested by Mr Liddell, or Mr Mackenzie that the appellant was suffering from a shoulder injury and the symptoms described at the time were in the elbow and arm, not the shoulder. The surgery suggested by Mr Liddell was to repair a ruptured tendon, not the shoulder, and Mr Liddell cannot be said to be unaware of the possibility of a shoulder impingement arising from the 1983 injury. 
Mr Barnett submitted that Mr Mackenzie found only a small rent in the appellant's biceps muscle, he thought that this type of injury gives remarkably little, if any disability subsequently, and he did not think there was any point in offering surgery. 
Mr Barnett submitted that on the evidence at the time the Corporation made the decision, which evidence must be taken to include knowledge of the necessary tasks involved as the BMA would have access to the ACC file, it was plainly open to the Corporation to conclude that the appellant was no longer suffering any loss of earning capacity and was able to return to his pre-injury work as a laundryman. 
Regarding Mr Liddell's opinion, Mr Barnett referred to his reservations about the appellant's incapacity due to the covered injury, and the appellant was possibly less incapacitated than claimed. Mr Barnett placed Mr Liddell's observations as being made “a year earlier” than Mr Mackenzie's report and noted that the two reports were not inconsistent in terms of the reservations Mr Liddell expressed, and said the two reports should be read together. 
The only other proximate medical opinion was Dr Sheldon's letter of 13 September 1985, which Mr Barnett qualified by saying that even Mr Liddell had doubts about the incapacitating effects of the injury, and that Dr Sheldon also said that the appellant was affected by reasons other than his injury. 
In Mr Barnett's view, the later medical evidence was of limited value, as the relevant date was February 1985. Mr Inglis' report was three years later, and by then there was no remaining evidence of the biceps rupture and the biceps contour was normal. The diagnosis was of a shoulder impingement and even if it is secondary to the covered injury, there is no evidence it was present in 1985. 
Mr Barnett also commented on the various permanent disability assessments, and highlighted the difference between the 5% impairment assessed by Mr Inglis in 1988 and Mr Tait's 2001 assessment of 40%, as being indicative of the progressive nature of the impingement condition, which he classified as essentially a wear and tear condition causing a narrowed joint space, which necessitated the acromioplasty performed by Mr Inglis. 
It did not follow that this condition was present in 1985 and, significantly, nor was it diagnosed by the two orthopaedic surgeons involved at the time. Evidence of the appellant's incapacity in 1988 and later is not evidence of his incapacity in 1985, the more so because the later symptoms were in the shoulder, not the elbow, and while the condition may have been present to some degree, it had not developed to the point of rendering the appellant unfit for his employment. 
The appellant's injury was diagnosed in 1984/85 as a torn biceps muscle without the benefit of any radiological evidence to assist with the exact identification of the original injury, or any possible changes in the injury due to him having returned to a heavy job which involved work tasks that would have been quite capable of causing or contributing to the shoulder impingement syndrome later diagnosed by Mr Inglis. 
Mr Liddell may well have considered that such a condition could arise when he examined the appellant, as he discussed the role of surgery to repair the tendon, or at least attach it firmly to the humerus (the rounded head of the arm bone which helps to form the shoulder joint) so as to prevent the bunching up of the muscle which he said tends to be annoying when the arm is used strongly. 
Unfortunately, the Corporation chose not to act on Mr Liddell's request to see the appellant again in six weeks time so that a more thorough examination could be carried out to confirm whether surgery was required. Consequently, there is no way of knowing for certain whether the shoulder impingement syndrome was immediately proximate to the appellant's 1983 injury, or subsequently developed to become evident and disabling in the months before he consulted Dr Sheldon, or developed between then, and February 1988, when he first saw Mr Inglis. 
The decision to send the appellant to Mr Mackenzie some ten weeks after Mr Liddell's examination is difficult to understand, as lump sum compensation for permanent disability is only paid on the basis of a medical certificate by the injured person's doctor, which certifies that the injury is stable and there is permanent disability, and there is no suggestion by the Corporation that Dr Sheldon had provided such a certificate. 
Moreover, the appellant's injury was obviously not stable, as he was certified fully unfit for work a year after the injury, which suggests that his condition was still deteriorating, and the Corporation did not pay out on Mr Mackenzie's assessed percentage impairment. 
And to reliably contradict Mr Liddell's opinion that the appellant was not fit for heavy work, Mr Mackenzie would have to at least discuss his work tasks with the appellant and give him a thorough physical examination, given that the appellant's incapacity came on after being forced to return to his normal duties only some six months earlier. The report does not suggest that this occurred. 
As for Mr Mackenzie's comment that the tear in the upper portion of the appellant's biceps was a minor consideration and was only being used as a work excuse, there is simply no evidence to support either assumption. Nor was any support provided for his comment that there was no point in performing surgery to reattach the tendon to the bone, and this is also quite contrary to the later medical evidence. 
When Mr Mackenzie's evidence is put aside, as in my view it should be, the evidence supporting the appellant's incapacity to work is consistent from 20 August 1984 through to 18 February 1991: Dr Sheldon certified the appellant as unfit for any work from 20 August 1984; Mr Liddell confirmed him as unfit for heavy work from 30 November 1984; Dr Sheldon confirmed Mr Liddell's opinion as to incapacity in September 1985, and ongoing, and Mr Inglis observed that the symptoms on which Mr Liddell based his view of the appellant's work incapacity were still present in February 1988, and again in September 1990. 
The logical conclusion is that appellant's shoulder symptoms most likely persisted with little change from the first diagnosis until confirmed by the surgery January 1991, and there is no reason to assume that the appellant's injury related condition would have changed for the better prior to the surgery, except in so far as he lost the required weight so that the surgery could be performed. 
However, Mr Inglis' post-operative reports suggest that the appellant was recovering well from the surgery and that he was regaining good function in his right shoulder. Also, Dr Lovell Smith reported that the appellant had significant improvement in movement after the surgery and was considerably better than before the operation, and along with Mr Tait, she identified other problems, including depression and large weight gain that should be investigated before any later incapacity can be considered. 
I do not accept Mr Barnett's contention that the appellant's shoulder impingement syndrome was of degenerative origin, or that it has to be proven as being present when the decision to cease the appellant's ERC was made in February 1985, as Mr Liddell's opinion, adequately establishes that the appellant most likely could not perform heavy work at that time. Nor do I think anything turns on the change in diagnosis from a torn biceps and associated symptoms to both a torn biceps and shoulder impingement syndrome, as all the medical evidence from 1988 onwards confirms that the shoulder condition was a result of the covered injury and accident. 
However, while I accept Mr Bell's submissions as to the level of the appellant's incapacity to work as at 15 February 1985, I believe that the medical evidence only supports continued incapacity up to a reasonably short period after 18 February 1991, and I prefer Mr Barnett's general approach concerning the assessment of the appellant's ongoing incapacity since then. 
The Corporation should have the opportunity to properly investigate the current claim for ongoing compensation and make an informed decision as to the cause and duration of the appellant's incapacity to work following his reported improvement after the 1991 surgery. The appellant should also have the benefit of a short period of grace after the 1991 surgery to allow for the reasonably likely duration of the physiotherapy programme he attended through Mr Inglis, as recorded in the clinical notes of 18 February 1991. 

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