Andreas Baltruweit and Australian Postal Corporation

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[2014] AATA 394 

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2012/5566

Re

Andreas Baltruweit

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal

Miss E A Shanahan, Member
Date 20 June 2014
Place Melbourne

The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable under s 14 (1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) to pay compensation to Andreas Baltruweit in respect of the following injuries: synovitis and tendonitis of the right wrist and hand, termed repetitive strain injury right forearm/wrist, and left thumb tendonitis.

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

Miss E A Shanahan, Member

WORKERS’ COMPENSATION – acute inflammatory process right wrist and hand – tenosynovitis and synovitis – underlying joint disease of uncertain origin – repetitive wrist movements – failure to respond to treatment for gout or rheumatoid arthritis – aggravation of an underlying arthropathy of uncertain aetiology – left thumb tendonitis – decision set aside.

Legislation

Safety, Rehabilitation and Compensation Act 1988 sections 5A, 5B, 14, 4, 67

Cases

Australian Postal Corporation v Lucas (1991) 33 FCR 101

Asioty v Canberra Abattoir Pty Ltd 167 CLR 533

Canberra Abattior Pty Ltd v Fadel Asioty [1988] FCFCA [1988] FCA 132, 26/4/1988

Commonwealth v Beattie (1981) 35 ALR 369

Tippett v Australian Postal Corporation VG 86 1997; (1998) 27 AAR 40

REASONS FOR DECISION

Miss E A Shanahan, Member

20 June 2014

  1. Mr Baltruweit is a postal delivery officer who commenced work with the Australian Postal Corporation, the respondent, in late 1989. 

  2. On 25 May 2012 he completed an incident report stating he was suffering from repetitive strain injury to the right forearm/wrist and left thumb.  The left thumb pain had commenced just before Christmas 2011 and the right forearm and wrist pain in early May 2012.  The right forearm pain increased progressively over a period of two weeks resulting in Mr Baltruweit ceasing work on 28 May 2012. 

  3. Mr Baltruweit’s symptoms gradually improved with rest, followed by a graduated return to alternate duties and reduced hours.  By October 2013 he had resumed full time duties.  Mr Baltruweit lodged a claim for compensation for incapacity for work on 28 May 2012.  A claims manager from the respondent’s injury management department rejected the claim on 16 August 2012. Mr Baltruweit sought a reconsideration of that decision and a delegate of the respondent affirmed the original decision on 25 October 2012.  Mr Baltruweit lodged an application for review by the Administrative Appeals Tribunal on 10 December 2012. 

  4. Mr Baltruweit was represented by Mr Mark Carey of counsel, instructed by Maurice Blackburn solicitors. The respondent was represented by Mr Michael Snell of counsel, instructed by Sparke Helmore solicitors. The Tribunal was provided with the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T‑documents) and  the parties tendered the following additional documents:

    For Mr Baltruweit:

    ·statement of the applicant dated 28 August 2013 – Exhibit A1;

    ·medical report of Mr Michael Khan, orthopaedic surgeon dated 3 July…

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Details
Case
[2014] AATA 394
Decision Date

CaseChat Overview and Summary

The case of Andreas Baltruweit and the Australian Postal Corporation involved a dispute regarding the liability of the respondent for compensation under the workers' compensation act. Baltruweit, a postal delivery officer, developed symptoms of synovitis and tendonitis in his right wrist and hand, and left thumb, which he believed were aggravated by his employment duties. The Tribunal was required to determine whether Baltruweit's pre-existing ailments were aggravated by his employment and, if so, to what extent the respondent was liable for compensation.

The key legal issue was whether Baltruweit's condition was primarily caused by his employment or if it was a progression of his pre-existing gout condition. The Tribunal had to weigh the medical evidence provided by various experts, including orthopaedic surgeons and rheumatologists, to ascertain the cause of Baltruweit's symptoms and their relation to his work activities. The Tribunal also needed to consider the temporal aspects of inflammation and the distinction between acute, subacute, and chronic conditions in their assessment.

In its decision, the Tribunal found that Baltruweit's pre-existing condition in his right wrist, finger joints, and left thumb was indeed aggravated by his employment. The Tribunal concluded that the repetitive nature of Baltruweit's work, particularly the use of his right hand and forearm while sorting mail and controlling his motorcycle, contributed to the marked tenosynovitis observed. The Tribunal accepted Baltruweit's evidence that his symptoms varied with his work activities and improved with rest, supporting the finding that his employment aggravated his condition. The Tribunal set aside the original decision and ruled that the respondent was liable to pay compensation to Baltruweit for the specified injuries.

The final orders of the Tribunal included that the respondent would pay compensation to Baltruweit for the injuries identified, along with his legal costs and disbursements. The Tribunal's decision was grounded in the medical evidence and Baltruweit's credible testimony, providing a clear basis for holding the respondent liable under the workers' compensation act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Mr Baltruweit, Mr Khan, Dr Stevenson and Dr Fraser gave evidence before the Tribunal. BACKGROUND TO THE APPLICATION Mr Baltruweit commenced working for the respondent on 16 November 1989 as a postal delivery officer. He is six foot, five inches (195.6 cm) in height and until October 2013 conducted his postal delivery rounds on a small motorcycle. His shift started at 6:00 a.m. and he completed his work at 1:30 p.m. On Mondays he started at 5:30 a.m. Overtime was available according to the season, being more readily available during the Christmas period. When other postal delivery officers were absent due to illness or holidays, the remaining postal officers divided their rounds among them, these are referred to as divides. The first three hours of any shift was spent sorting mail and what is termed throwing off. Other work Mr Baltruweit occasionally undertook included re‑directing mail. Having commenced work at 6:00a.m., Mr Baltruweit was ready to start his actual delivery rounds by 9:30 or 10:00 a.m. Mr Baltruweit has a long history of gout having two to three attacks of acute gout a year for the past 11 to 12 years. These attacks affect his knees and ankles, predominately on the right side. He believes he may have had one or two attacks in his fingers but is not certain of this. He takes Pro-gout prophylactically to control his uric acid levels and when he has a gout attack he also takes Colchicine and Prednisilone. Prednisolone for two to three days is usually sufficient to bring an acute attack under control. As he had found, taking Pro-gout continuously through an acute attack prolonged the acute attack. He stopped taking the 100 mg per day of Pro‑gout during an acute attack and instead takes Prednisilone 100 mg twice a day. In December 2011 Mr Baltruweit developed pain in the base of his left thumb. At that time, he was sorting letters in a manner that required him to turn the letters through 180 degrees to check the address and he did this using his left hand turning the letter with his left thumb. The pain in his thumb eased over the Christmas holidays and also over weekends. In May 2012 he first noted pain in his right forearm and hand. He believed the pain started in his right thumb and radiated up the volar surface of the forearm on the radial border. Over 10 to 14 days, this pain became increasingly severe although it fluctuated according to his duties. On arrival at work in the morning, the pain was of low intensity but became increasingly severe as the day progressed. On 24 May 2012 he developed severe swelling of the dorsal and volar aspect of his hand and wrist. He consulted the facility nominated doctor (FND), Dr Frank Vincent on Monday 28 May. At the time of this visit, he also complained of pain in his right toes which was attributed to his new boots, issued by the respondent. Dr Vincent referred Mr Baltruweit to the orthopaedic surgeon, Mr Hau. Mr Hau examined Mr Baltruweit on 27 June 2012 and found diffuse swelling of his right wrist, hand and fingers on the dorsum of the hand and the volar aspect. The range of movement of the right wrist was moderately reduced. Plain x-rays of both thumbs showed osteoarthritis and an x-ray of his right wrist showed mild osteoarthritis. Mr Hau diagnosed bilateral flexor and extensor tenosynovitis affecting all of the fingers on the right and the left thumb. Mr Hau referred Mr Baltruweit to a rheumatologist, there being no indication for any surgical intervention.

Evidence

Evidence Before The Court

Mr Baltruweit strongly believes that there was a relationship between his symptoms and the amount of work he was undertaking. In May 2012, although the volume of letters handled by the respondent was diminishing, it became common for divides to be undertaken. EVIDENCE BEFORE THE TRIBUNALMr Andreas Baltruweit Mr Baltruweit’s evidence has been summarised under BACKGROUND TO THE APPLICATION.Mr Michael Khan Mr Khan is an orthopaedic surgeon who saw Mr Baltruweit at the request of his solicitors and provided a report dated 3 July 2013 (Exhibit A2). Mr Khan saw Mr Baltruweit 12 months after the onset of Mr Baltruweit’s right hand and wrist symptoms and signs. When seen by Mr Khan, Mr Baltruweit was working on modified duties at reduced hours and the swelling he then experienced was minimal. On physical examination, Mr Khan found that Mr Baltruweit had a full range of movement in his right fingers but his grip was diminished in strength. There was minor swelling and thickening in some of his finger joints predominately in his fourth finger. The range of movement in the right wrist was slightly reduced. Mr Khan noted the findings of the MRI of the right wrist and attributed the erosive changes in the carpal bones, radius and ulnar to past attacks of gout. He considered the repetitive nature of Mr Baltruweit’s work in throwing off and using his right hand and forearm in controlling the motorcycle while using his left hand to sort and place mail in householders’ letterboxes, to have contributed to the marked tenosynovitis, which is swelling around the tendons (as opposed to the synovitis, which is inflammation of the lining of the various joints). While Mr Khan favoured a pre-existing diagnosis of gout, he did not exclude the diagnosis of seronegative inflammatory arthritis. In his evidence before the Tribunal, Mr Khan expanded on his written opinion. Mr Khan opined that continuing microtrauma in an abnormal joint has led to synovitis and tenosynovitis in Mr Baltruweit’s right hand and wrist. In response to a question from the Tribunal, Mr Khan indicated that the maximal changes present in the MRI were those of tendonitis and tenosynovitis rather than the changes in the joints. Mr Khan relied on the report and his own interpretation of the MRI scan. Mr Khan did stress the fact that the only joints that had been involved in the acute process of May 2012 were those that were involved in or essential to the conduct Mr Baltruweit’s work duties.Dr Peter Stevenson Dr Stevenson saw Mr Baltruweit in March 2013, at the request of the respondent. Dr Stevenson, in his report of 10 April 2013 (Exhibit R2), detailed Mr Baltruweit’s work duties in terms of throwing off and delivering mail. The history obtained by Dr Stevenson was as previously stated. On physical examination, Dr Stevenson did not detect any abnormality in any joints. Dr Stevenson addressed all the earlier reports and investigations, which were available to him, and concluded that Mr Baltruweit had presented in May 2012 with acute inflammatory arthritis of his right wrist and possible lower grade disease in his left thumb. This had been slow to respond to treatment.

Decision

Reasons for decision

The Tribunal finds that Mr Baltruweit’s pre-existing ailment in his right wrist, finger joints and left thumb was aggravated to a significant degree by his employment. DECISION The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable to pay compensation to Mr Baltruweit under s 14 (1) of the Act, in respect of the following injuries: synovitis and tendonitis of the right wrist and hand, termed repetitive strain injury right forearm/wrist, and left thumb tendonitis. The respondent shall pay Mr Baltruweit’s legal costs and disbursements to be determined pursuant to paragraph 6.10 of the Administrative Appeals Tribunal – Guide to the Workers’ Compensation Jurisdiction (version 2.0).

Ratio Decidendi

Legal Principle Established

Mr Snell did refer to the Federal Court decision in Australian Postal Corporation v Janice Karen Lucas (1991) FCA 612 wherein the majority decision of the Administrative Appeals Tribunal (that formed the basis of the appeal) had made what appeared to be findings of fact contrary to or despite the opinion evidence given by all the experts in the matter. In his response, Mr Carey stated that this particular decision stood for the Tribunal not providing sufficient reasoning directed to the material questions of fact. TRIBUNAL’S DELIBERATIONS There is clear evidence that Mr Baltruweit developed an acute arthropathy involving his right wrist joint and some finger joints over a period of 10 to 14 days in May 2012. The resulting pain and swelling culminated in a degree of disablement that prevented him from using his right hand effectively and necessitated the cessation of work. Mr Baltruweit noted his initial symptom of pain fluctuated according to his work duties and abated with rest. Over a period of some 48 hours, commencing on 24 May 2012, Mr Baltruweit’s right hand and wrist became extremely swollen. This swelling affected both the dorsum and the volar aspect of the wrist and hand. Mr Baltruweit is an impressive witness and one the Tribunal considers to be creditable. The symptoms and signs of Mr Baltruweit’s right wrist and finger arthropathy were observed and reported by Dr Vincent and by Mr Hau, who on clinical grounds, made a diagnosis of bilateral flexor and extensor tenosynovitis affecting all of his fingers on the right hand and his left thumb. Mr Hau is the only consultant practitioner who saw Mr Baltruweit during the subacute phase of his illness. Doctors Fraser, Stevenson and Engel and Mr Khan saw him many months after the onset of his condition, at a time when his physical signs had either completely abated or almost abated. The medical definitions of acute, subacute and chronic inflammation or medical conditions, are based on temporal factors, with conditions lasting up to six weeks being considered acute, those from six weeks to 12 weeks considered subacute and those beyond three months considered chronic. Mr Baltruweit stated that he experiences attacks of gout predominately in his right ankle and knee, two to three times per year and has done so for the past 11 to 12 years. He has on occasion had attacks in his left lower limb and he also thinks he might have had up to two minor bouts involving the fingers on his right hand. He is on prophylactic medication in the form of allopurinol for his gout; and his acute attacks are treated with Colchicine and corticosteroids, the latter being administered over a period of two to three days, by which time his acute bout of gout is well controlled. Mr Baltruweit distinguished the symptoms he suffered in his right wrist and fingers and left thumb in May and the subsequent months of 2012 as being quite distinct from his attacks of gout in their at onset, the severity of symptoms, the prolongation of symptoms, the failure to respond to treatment, the severity of the swelling and the incapacity that resulted. As he put it, somewhat bluntly, his hand was so swollen he couldn’t wipe his bum. A further difference he noted was that the severity of the symptoms in his right hand and left thumb varied according to the type of activities he performed with his hands. He had found that his symptoms, in terms of pain, improved overnight and also during breaks at work. Improvement over the weekends was more marked. This pattern occurred in early May, prior to the development of marked swelling and recurred after his return to work in late 2012.