Boccanfuso and Australian Postal Corporation
[2008] AATA 797
•9 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 797
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N2006/1368
GENERAL ADMINISTRATIVVE DIVISION )
Re ALFRED BOCCANFUSO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member
Date9 September 2008
PlaceSydney
Decision The decision under review is set aside and this matter remitted to the Respondent with the following directions, namely:
i.The Applicant was involved in a work related incident on 15 September 2003 which was productive of symptomatology in his right shoulder.
ii.The Respondent is liable to pay compensation in respect of that right shoulder injury pursuant to s14 of Safety, Rehabilitation and Compensation Act 1988.
iii.The injury was of a minor nature with no long lasting pathology.
iv.The injury resolved by 30 October 2003 and thereafter the Applicant returned to his pre-injury state.
v.As a result of the injury incurred on 15 September 2003 the Applicant took no time off work but did seek and obtain medical attention.
...........................[Sgd].............................
M D Allen
Presiding Member
CATCHWORDS Workers’ compensation – whether applicant sustained an injury at work and the nature of that injury – no jurisdiction to consider matters not dealt with in the reviewable decision.
LEGISLATION
Safety Rehabilitation and Compensation Act 1988, s14, 62, 64
CASES
Comcare v Matthews (1999) 29 AAR 350
REASONS FOR DECISION
9 September 2008 Senior Member M D Allen
Dr M E C Thorpe, Member
1. By application made the 10 day of October 2006 the Applicant sought review of a "reviewable decision" dated 5 October 2006, affirming a prior determination that the Respondent was not liable to pay pursuant to s14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) to pay compensation to the Applicant for a right shoulder injury sustained on 15 September 2003.
2. At the outset we state that we find that the Applicant was an honest witness who was genuine in the account he gave to the Tribunal.
3. There is no doubt that the Applicant has had a long history of various injuries in the course of his employment with Australia Post. In this regard, it is important to note that in 1987 the Applicant suffered a fractured skull and broken nose and as a result was unable to work for some considerable time. As a result of this injury and its sequalae, he lost his business as a jeweller and is now unable to work in that occupation, although he had trained both in Australia and Italy to master his craft. Subsequently he became depressed and was prescribed Zoloft an anti-depressant. He is still taking anti-depressants.
4. The head injury suffered by the Applicant may have led to a situation where, as stated in evidence by rheumatologist Dr McGill, symptoms not of a threatening nature or minor, present to him with greater concern, and that he has more difficulty than most people in moving on and not being concerned about a minor symptom. Nonetheless, Dr McGill specifically stated that he did not get the impression that the Applicant was deliberately falsifying his history. This, as stated above, is also the finding of the Tribunal.
5. Exhibit A2 is a Statutory Declaration by the Applicant referring to the circumstances of his injury on 15 September 2003. It reads:
On the 15 September 2003 at 11.35 am I was culling at St Leonard’s Hub and tipping bags. Whilst I was working, my shoulder starting to ache, not long after I had a lot of discomfort in both my neck and lower back. I immediately informed Mark Ivamy (PTC 1 Supervisor) about the incident and he sent me to see Dr Sim at around midday. When I returned from the doctor, I also reported the shoulder injury to Norman Cobban (PTC 2 Supervisor). After 11 days of discomfort, my shoulder was not improving which left me no choice but to have one of my first injections of Cortisone which was administered by Dr Sim on 26 September 2003.
6. Cross-examined the Applicant did not resile from his description of the injury, although he expanded on the specifics of the duties required of him. He said that he had to lift bags of mail above shoulder height in order to empty them onto a conveyor belt through a funnel. He then was required to "cull" the mail ie. to remove non-standard items.
7. Following his experiencing a sharp pain in his right shoulder and elbow, he informed his supervisor and attended upon Dr Sim, a medical practitioner who is a nominated medical practitioner for Australia Post employees.
8. Document T139 in the documents prepared for the Tribunal, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, is a copy of the medical certificate issued by Dr Sim that day. It records that the Applicant complained of pain in the right shoulder and right lower back, but was fit for work with restrictions as to weights lifted.
9. The Applicant was again reviewed by Dr Sim on the 16th September and the 18th September.
10. On 25 September 2003 Dr Sim injected steroids into the Applicant's right shoulder.
11. The Applicant had suffered from shoulder pain prior to 15 September 2003. In a report dated 6 October 1999, occupational physician Dr Pierides took a history of "tightness in the right shoulder over the last 6 months" adding:
“he did have a past history of having injured his shoulder while working for Australia Post in 1993, when he fell over the front of his bike and landed on his right shoulder. He had some time off at that stage but eventually returned to normal duties.
I note in Dr McNaught’s letter he suggested that Alfred had on going problems off and on with his shoulder but I did not elicit this history myself …”.
12. Dr McNaught, rheumatologist, had in a report dated 17 September 1999 to the Applicant's then general practitioner opined:
Almost certainly, we are seeing impingement of the right shoulder rotator cuff related to the activity of sorting which does place a quite significant repetitive strain on the rotator cuff.
13. The evidence is that the Applicant's right shoulder symptoms largely settled and as at September 2003 he was asymptomatic.
14. As stated above, we accept the Applicant's evidence that whilst working on the 15 September 2003 he experienced pain in his right shoulder. In cross-examination he said that he had a "flare up". Professor Sambrook, who examined the Applicant at the request of his solicitors in 2004, obtained a history of an injury to the right shoulder in 1994 or 1995, when the Applicant had an accident whilst riding an Australia Post motor cycle. Later in 1999 the Applicant became aware of right shoulder pain while performing mail sorting activities.
15. In his report of 11 October 2004, Professor Sambrook did not address the relationship between the Applicant's right shoulder condition and his employment, as his instructions at that time were to make an assessment in regard to the Applicant’s neck, back and legs only. In 2007 Professor Sambrook was asked to examine the Applicant with regard to his right shoulder.
16. In his report to the Applicant's solicitors dated 21 March 2007, Professor Sambrook opined that the Applicant had clinical evidence of bicipital tendonitis and a mild impingement syndrome.
17. Professor Sambrook gave evidence to the Tribunal at the same time as the Respondent's expert Dr McGill who is also a rheumatologist. Whereas Professor Sambrook found features of mild impingement, Dr McGill some four months later did not. Both specialists agreed there was no structural abnormalities and no evidence of impairment as per the Comcare Guide to Permanent Impairment as at present.
18. Both specialists accepted that ‘something’ occurred to the Applicant's shoulder on 15 September 2003 to cause pain. The only difference in their respective opinions is that Dr McGill did not think that it was possible at present to provide any specific diagnosis, whereas Professor Sambrook's opinion is that there had been some bicipital tendonitis. Dr McGill would accept that some very minor impingement of the bicipital tendon could have occurred and then settled down.
19. As pointed out by Dr McGill, the Applicant has had previous episodes of shoulder pain related to specific events. Professor Sambrook referred to a history of reported shoulder pain from 1999 onwards related to mail sorting.
20. On 18 May 2005 Dr Noll, orthopaedic surgeon, reported to Dr Sim on the Applicant's shoulder and back complaints. We take particular account of this report as it was made for treatment purposes and not for medico-legal reasons. In that report, Dr Noll states:
He gave me a long and detailed history dating back to 1999 when he first developed right shoulder pain while working as a postman.
He has had numerous investigations including an X-ray of the cervical spine and right shoulder and an MRI scan of the right shoulder and lumbo-sacral spine. No significant abnormality was noted on any of these investigations. It was particularly noted that the MRI scan of the right shoulder was normal and that this had been interpreted by Dr Phil Lucas who is certainly an acknowledged expert in this region.
Mr Boccanfuso has no evidence of any significant structural abnormality of his right shoulder. At most, he may have some mild rotator cuff impingement…
21. We are satisfied, given the evidence of Professor Sambrook and Dr McGill and having regard to the report of Dr Noll, that the Applicant did experience shoulder pain as a result of mail sorting on 15 September 2003.
22. That finding is enough to vest liability in the Respondent and the decision under review will be set aside. The parties have, however, requested that we make findings as to the period in which the Applicant was incapacitated by his work-caused shoulder pain.
23. Normally such a finding would be beyond the powers of this Tribunal. The task of the Tribunal, pursuant to s64 of the SRC Act, is to review the "reviewable decision" made by the Respondent under s62 of the SRC Act. If that reviewable decision does not deal with matters such as the cost of medical treatment (s16 SRC Act) or Permanent Impairment (s24), then the Administrative Appeals Tribunal has no jurisdiction to make decisions as to those issues. That much is made clear by the Full Court of the Federal Court in Comcare v Mathews (1999) 29 AAR 350.
24. That is not to say, however, that the Tribunal cannot consider such matters at the request of the parties, when the decision of the Tribunal requires further determinations by the Respondent.
25. Exhibit A5 in these proceedings are extracts from the clinical notes of Dr Sim. These notes refer to the Applicant's attendance upon Dr Sim on the 15 September 2003 and subsequent attendances upon him. On the 29th September 2003, Dr Sim injected cortisone into the Applicant's right shoulder (see also T141). Dr Sim's notes then record that on 2nd October 2003 the patient was feeling better and the right shoulder had a normal range of movement.
26. By 9 October 2003 Dr Sim was recording that the pain in the Applicant's right shoulder had resolved. On 22 October 2003 the Applicant attended Dr Sim complaining of back pain but no record was made of pain in the right shoulder. On 30 October 2003 Dr Sim noted that the right shoulder had been well and the range of movement was normal with no pain.
27. We note that the Applicant received cortisone injections into his right shoulder on subsequent occasions, but given Professor Sambrook's evidence that his right shoulder was subject to exacerbation of impingement, then it is entirely consistent that the Applicant made a recovery from the 15 September 2003 incident by 30 October 2003, and the later injections were rendered necessary by later exacerbations of his underlying condition.
28. We are aided in this finding by the report of orthopaedic surgeon Dr Noll referred to above. In particular, his reference to, at best, a mild rotator cuff impingement. Such a finding is consistent with several recurring mild exacerbations, rather than, as submitted by the Applicant, a continuing exacerbation post October 2003.
29. The decision of the Tribunal will be that the decision under review is set aside and that this matter is remitted to the Respondent with directions.
30. The Respondent is to pay the Applicant's costs.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member.
Signed: .....................[Sgd]........................................................
AssociateDates of Hearing 16 April and 1 August 2008
Date of Decision 9 September 2008
Counsel for the Applicant Mr D Richard
Solicitor for the Applicant Ms S Lepage, Slater & Gordon
Counsel for the Applicant Mr P S Jones
Solicitor for the Respondent Mr L Forner, Forners Solicitors & Consultants
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