Carolyn Cook and Australian Postal Corporation

[2015] AATA 280

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/4187

2014/4674

2014/5684

Re

Carolyn Cook

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey

Date 30 April 2015

Place Sydney
The Tribunal affirms the decisions under review.
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Senior Member J F Toohey
CATCHWORDS – compensation – cervical strain – bilateral shoulder pain – pre-existing degenerative changes – nature and conditions of employment – whether effects of accepted injury had ceased – decisions under review affirmed
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 5A(1), 5B(1)
REASONS FOR DECISION
Senior Member J F Toohey
Background

Ms Carolyn Cook started work for Australia Post in 1996. From 2003 she was employed as a mail officer. She claims compensation under the Safety Rehabilitation and Compensation Act 1988 (the Act) for an injury to her right shoulder sustained on 5 September 2011 and an injury to her left shoulder, elbow, arm and neck sustained on 30 January 2013.
The respondent accepted liability to compensate Ms Cook for the injury on 5 September 2011 to her right shoulder. The respondent also accepted liability to compensate her for a “temporary aggravation of her degenerative cervical spine” from 30 January 2013 to 10 April 2013. Although described in this way, the respondent appears to have accepted liability for what Ms Cook described as an injury to her left shoulder, elbow, arm and neck.
By a reviewable decision on 8 August 2013 the respondent affirmed its decision that, as of 10 April 2013, it was not presently liable to compensate Ms Cook for incapacity or medical expenses in respect of the injury to her left shoulder, elbow, arm and neck.
By a reviewable decision on 27 October 2014, the respondent affirmed a decision that, as of 12 September 2014, it was not presently liable to compensate Ms Cook for incapacity or medical expenses in respect of the injury to her right shoulder subacromial bursitis sustained on 5 September 2011.
When Ms Cook’s applications for review came on for hearing in the Tribunal in June 2014, she advised that she wished to make a claim in relation to an injury on 30 January 2014 resulting from the “nature and conditions” of her employment. As no such claim had previously been made, the hearing was vacated to allow Ms Cook time to make the claim and the respondent to determine it. By a reviewable decision on 3 September 2014, the respondent denied liability to compensate her.
The respondent suggests that the acceptance of any liability to compensate Ms Cook’s conditions was “charitable” or “beneficial” but it does not seek to have those decisions revisited. The real issue in these proceedings is whether the respondent is liable to compensate Ms Cook for any ongoing symptomatology in her left shoulder, elbow, arm and neck after 10 April 2013, and in her right shoulder after 12 September 2014.
Ms Cook’s duties
Ms Cook worked as a cleaner for the respondent until 2003 when she started working as a mail officer. From 2003 until September 2011, she spent one half of her eight-hour shift doing manual sorting and the other half on the bar code sorter (BCS) machine. She had 15 minutes breaks for morning and afternoon tea, and 30 minute breaks for lunch.
The manual sorting duties which occupied four hours of Ms Cook’s shift involved sorting small and large letters, laying out large letters, sorting small parcels, and transferring large parcels, such as boxes of wine weighing up to 16 kilograms.
Ms Cook’s work at the BCS was rotated through three duties of approximately half an hour each. The first involved feeding letters into the BCS at approximately waist height; there was no overhead work involved. The second involved putting mail into stackers which comprised four levels, the highest of which was just above shoulder height and the lowest just below hip height. The third part of the BCS duties was as a “runner”, taking trays from the stacker and placing them onto a dolly or into a Unit Load Device (ULD) and from there to a weighbridge and then the loading docks. The fourth rotation was on the stackers again.
Contrary to what some doctors understood (see below), Ms Cook was not working continuously, or even most of her shift, with her arms above shoulder height as part of her duties on 5 September 2011. When placing mail into the highest tier, her hand – but not her elbow – was above shoulder height. The only time she had to lift her elbow above shoulder height was if leaning forward and extending her arm to release a gate at about nose height which held back the mail on the top tier.
Ms Cook’s right shoulder injury on 5 September 2011
In about July 2011, Ms Cook began to experience “some aches and sharp twinges” while performing her normal duties. There is no evidence that she suffered neck, shoulder or arm pain prior to that time.
On 5 September 2011, Ms Cook was performing her regular duties at the BCS machine when she felt “pain building in the shoulder and upper arm” which progressed to a “sharp pain shooting down [her] arm”. She could not lift her arm above her shoulders and it felt like a “dead, heavy weight” with a “painfully inflamed sensation”. She reported the matter to her supervisor and completed an incident report form in which she stated she was emptying the higher stackers when she felt a “pull” in her right arm. On 11 October 2011, Ms Cook lodged a claim for compensation.
Immediately following this incident, Ms Cook was placed on restricted duties. Apart from a brief period, referred to below, she has not performed duties at the BCS machine since. She has worked subject to weight restrictions, initially a maximum of five kilograms and later ten kilograms for intermittent lifting, and eight kilograms for repetitive lifting. Her duties primarily involve using a hand-held electric forklift (a “BT splitter”) to transport ULDs, “prepping” the mail by sorting trays into the correct locations so they are ready for hand sorting, setting up the “bull ring”, writing codes on wine boxes and printing labels. Occasionally she works on print post layout which involves sorting bundles of magazines from one ULD to another and moving around “blue trolleys”.
Did Ms Cook return to work on the BCS after 5 September 2011?
The evidence as to whether Ms Cook returned to work on the BCS (meaning she had to lift her arm above shoulder height) after 5 September 2011 and, if so, for how long, was not altogether clear. Giving evidence, Ms Cook clearly did her best to recall her duties at different times but she acknowledged she had difficulty recalling everything clearly. There is no suggestion that she was not a truthful witness.
In a written statement of evidence dated 17 December 2013, Ms Cook stated that, since 5 September 2011 “until the present time” she had been on “vastly different” duties. In a supplementary statement dated 7 July 2014, Ms Cook said that, during late 2012, her rehabilitation manager put her under increasing pressure to return to her full pre-injury duties; she began working on “half and hour rotations” (by which I understand her to mean half-hour rotations) on the BCS machine and sorting large parcels and letters. She stated this involved “extremely repetitive lifting of the arms and … more heavy lifting” as a result of which she started favouring her left arm.
Giving evidence, Ms Cook said she returned to work on the BCS only briefly, when attempts were being made at her rehabilitation but she could not recall whether she cleared stacker trays. In cross-examination, she agreed that, after 5 September 2011, she was not ever required to elevate her elbow above chest height while performing her duties.
Emails between Ms Cook’s rehabilitation case officer and her supervisor indicate that, as at 30 April 2012, Dr Laurence Bryant, sports physician, supported her trying to do stacker duties at the BCS, initially for 10 minute periods and gradually building up over the next two weeks. According to an email on 16 May 2012, Ms Cook was still limited in her ability to work repetitively above shoulder height but Dr Bryant had agreed to her working on the BCS for 30 minute periods with alternate duties for one hour before returning to the BCS. An email on 29 May 2012 shows that Dr Bryant had recommended slowly increasing the BCS work so that, by 22 June 2012, Ms Cook would be able to attempt her full pre-injury duties and be rostered to the BCS. This last email notes there had been a delay in putting this proposal into effect because Ms Cook had been off work with a non-work-related illness from 16 May to 28 May 2012. An email on 20 July 2012 indicates that “[t]he introduction of the [multi-line optical card reader] machine this week has aggravated her shoulder injury” but does not refer to the trial on the BCS.
Dr Neil McGill, rheumatologist, saw Ms Cook on three occasions for assessment. On 22 November 2012, he reported that she “currently usually uses her left hand when clearing mail from the top row of stackers at the BCS”. On 26 June 2014, he reported that Ms Cook had returned to work on the BCS for short periods in 2012 but “the attempt did not last very long”; Ms Cook could not estimate its duration but “she today explained that none of her work duties have involved elevation of the elbow above chest height since 2012”. Dr McGill’s understanding of Ms Cook’s duties at 22 November 2012 does not appear to be correct.
In the end, little turns on these variations in the evidence. I accept that the limited information in the emails reflects the true position at the time meaning that, at most, Ms Cook tried working at the BCS for brief periods over about six weeks up to 16 May 2012. There is no evidence that she worked on it after that time and I am satisfied she did not. I am also satisfied that, apart from that brief period, none of her duties after 5 September 2011 required her to lift her elbow above shoulder height.
Ms Cook’s left shoulder, elbow, arm and neck injury on 30 January 2013
As noted above, because her right shoulder and arm were painful, Ms Cook started favouring her left. Around the end of 2012, she started to feel pain in her left shoulder going down to her left elbow. Around late January or early February 2013, she was moving bundles of magazines between ULDs when she became aware of pain in her left arm and its movement became “heavily restricted”. She reported it to the medical officer but says she did not think much of it at the time. She was not aware of any specific trauma that caused her pain.
On 5 February 2013, Ms Cook completed an incident report in which she stated she injured her “left arm/elbow/shoulder blade” while “working on print post layout”. She stated she felt her elbow and below “pull and grip with pain”; she thought no more of it until she was doing her other duties and her whole arm started to ache “especially when under load (lifting of letters etc)”. She stated the exact work process undertaken at the time of the incident was “sorting print post bundles from one ULD to another ULD”.
Ms Cook was placed on further restricted duties. By April 2013, her hours were reduced to five hours per shift five days a week. She complained of pain in both shoulders and arms, and her neck was stiff. She experienced pins and needles, mainly in her first two fingers, and swelling. She returned to full time hours at the end of June 2013 with a 10 kilogram lifting restriction for occasional lifting and eight kilograms for repetitive lifting.
Ms Cook continues to work full hours on restricted duties. She says she continues to experience painful symptoms; she has great difficulty dressing herself; her sleep is disturbed every night by constant pain; she cannot drive a car for more than one hour before the pain becomes unbearable; she can only manage light housework and is unable to clean windows or bathrooms, or mow lawns; she experiences pain on lifting her young grandchildren for any length of time.
Medical evidence - radiological investigations
There is no dispute that Ms Cook had degenerative changes in her cervical spine and shoulder before 5 September 2011. The report of an x-ray of her right shoulder on 19 October 2011 showed “mild to moderate [osteoarthritis] in the [acromioclavicular] joint and “minimal glenohumeral joint [osteoarthritis] and no other abnormality”. A right shoulder ultrasound on the same date showed “mild zone of tendinosis of the articular surface of the mid supraspinatus tendon. Mild impingement of the subacromial/subdeltoid bursa upon abduction”. No full or partial thickness tear was seen.
An MRI of Ms Cook’s cervical spine on 30 August 2012 showed moderate spondylosis at C5/6 and C4/5 resulting in bilateral foraminal stenosis at both levels.
X-rays of Ms Cook’s left shoulder on 28 June 2013 showed “mild to moderate degenerative change at the left AC joint with joint space narrowing and marginal osteophyte formation, primarily superiorly”. No other bony abnormality was demonstrated and no lytic or blastic lesion or soft tissue calcification. An ultrasound on the same day showed:
… minimal thickening of the subacromial/subdeltoid bursa consistent with bursitis and on dynamic scanning there was evidence for bursal impingement under the coracoacromial ligament. Note is again made of AC joint degenerative change which was tender to probe pressure. This study is otherwise unremarkable.
The doctors who gave evidence all agreed that Ms Cook’s radiological scans were unremarkable for a woman of her age. Dr Neil McGill, a rheumatologist who assessed Ms Cook for the purposes of these proceedings, said the degenerative nature of her shoulder condition was underlined by the almost identical findings in respect of both shoulders.
Medical reports
On 6 September 2011, Ms Cook saw general practitioner, Dr Bryant. In about July 2012, he referred her to Dr Simon Tame, pain management specialist.
On 4 October 2013, Dr Tame reported to Ms Cook’s solicitors that he could not give a definitive diagnosis because there were several possible factors contributing to her right-sided neck, shoulder and arm pain. On reviewing her in April 2013, when she had developed left-sided pain as well, he thought the underlying diagnosis unclear; he thought she had a combination of rotator cuff pain as well as shoulder girdle muscular pain and possibly pain generated from her foraminal stenosis at C6, but it was difficult to be definitive without further investigations and possibly an opinion from a shoulder specialist. As causation was not his area of expertise, Dr Tame said he would not venture an opinion on the cause of Ms Cook’s symptoms which may explain why he does not appear to have taken any history of her duties.
Dr Tame referred Ms Cook to an exercise physiologist, Dr Phil Rees. Cortisone injections by Dr Bryant into her right shoulder did little to improve her condition.
Dr David Rodd, a shoulder physician who saw Ms Cook in August 2013 for assessment and took a history that Ms Cook’s duties prior to 5 September 2011 involved “repetitive reaching and stretching away from her body” but otherwise he does not appear, from his report, to have any detailed understanding of her duties. His opinion was that “the predominant diagnosis was one of bilateral frozen shoulder being longstanding in the right and probably an early frozen shoulder in the left”. He thought her duties had aggravated her “subclinical condition” but, with appropriate treatment, her symptoms should resolve within three to six months.
Doctors’ oral evidence
Dr Raymond Wallace, Dr Stephen Kemp and Dr David Maxwell, orthopaedic surgeons, and Dr McGill, have seen Ms Cook for treatment or assessment. Each has provided written reports and gave oral evidence.
The doctors agree, and Ms Cook does not dispute, that there was no change of any significance in the underlying pathology in her neck, shoulders or arms as a result of what occurred while working on 5 September 2011 or 30 January 2012.
Dr Wallace
Dr Wallace saw Ms Cook for assessment on 16 October 2013, 5 February 2014 and 23 July 2014.
In his first report, Dr Wallace took a history from Ms Cook of work duties “including sorting mail and parcels and machine operation. She was required to sort mail into stacks which involved some overhead work”. He reported that Ms Cook told him that, on 5 September 2011, she noted the gradual onset of pain in her right shoulder “with no specific work-related injury”; she had no prior history of injury to her neck or shoulders.
In his second report, in relation to the injury in January 2013, Dr Wallace noted that Ms Cook was working at light duties, which he described as “lifting bundles of magazines and sorting mail”, when she noted the onset of pain in her left shoulder.
In his third report, Dr Wallace noted:
In regard to her workplace activities in 2011 Ms Cook states that she was required to sort mail and parcels as well as operate a BCS machine. This machine involved feeding mail into it and it would then sort the mail into stacks. She would then have to remove trays of mail. In her capacity as a “runner” she would have to lift trays of mail from the machine and replace them with empty trays. She would also be required to sort mail and large letters as well as dealing with some parcels including boxes of wine.
Dr Wallace diagnosed Ms Cook as having suffered musculo-ligamentous strain of the cervical spine and aggravation of pre-existing degenerative cervical spondylosis on 5 September 2011 as a result of the nature and conditions of her employment. He thought her bilateral shoulder pain was due to referred pain from her cervical spine.
In cross-examination, Dr Wallace conceded that he had no knowledge of how often Ms Cook sorted mail into stacks, how often she placed mail above shoulder height, what duties each shift comprised and for how long she performed each duty, and nor did he know anything about what operating the BCS specifically involved. It is relevant that he understood that Ms Cook had worked since 1998 sorting mail into pigeon holes, some of which were above head height.
In respect of neck movements, Dr Wallace said he understood Ms Cook was sorting mail and some of that work was overhead; he assumed she looked from left to right if sorting mail into pigeon holes and he said she had to be looking up and down if placing mail in stacks overhead. In fact, there is no evidence that any of Ms Cook’s duties involved extensive neck movements. He agreed that, in relation to the injury in January 2013, he had no information about the frequency, weight, distance or direction of any items she had to lift and which he said caused cervical strain.
Dr Wallace gave evidence that, while he might have had limited information, he was satisfied by the history he took from Ms Cook and the description of her duties, that it was the nature and conditions of her employment that led to her neck and shoulder conditions.
In these circumstances, I cannot be satisfied that there is any factual basis for Dr Wallace’s opinion about the cause of Ms Cook’s injuries.
Dr Kemp
Dr Kemp specialises in hand and upper limb surgery. He saw Ms Cook for treatment on 4 June, 2 July, 30 July and 10 September 2014. He took a history that her duties prior to 5 September 2011 involved working on the BCS machine and this “involved reaching and lifting at chest height”.
On 4 June 2014, Dr Kemp reported that Ms Cook’s presentation did not fit “clearly into inflammation of the subacromial space nor of the acromioclavicular joint”. He thought that “particularly on the left side [her] presentation is of more diffuse myofascial irritability”.
Giving oral evidence Dr Kemp said Ms Cook’s initial presentation had “components of a number of potential diagnoses” but he thought most of her trouble was due to diffuse myofascial irritability, and she currently has a mild ongoing impingement syndrome. He agreed that his principal interest was in treating Ms Cook rather than ascertaining causation; had he been seeing her for medico-legal assessment, he would have taken a detailed statement of her duties.

On 7 October 2014, Dr Kemp reported that there was “a clear causal relationship between the nature and conditions of Ms Cook’s duties for Australia Post and the development of symptoms on the right shoulder”. Giving oral evidence Dr Kemp said he understood Ms Cook’s right shoulder symptoms developed based on “reaching and lifting at and above chest height [and] placing envelopes repetitively into different slots” which he understood she did for most of her shift.
Also on 7 October 2014, Dr Kemp reported that he thought both Ms Cook’s shoulders were “afflicted by a similar condition” and that “[r]epetitive use of the left arm at and above chest height would have led to a similar condition [as in her right]”. In fact, as already discussed, apart from a very brief period in 2012, Ms Cook did not return to work on the BCS machine after 5 September 2011 and did not use her elbows above chest height.
Dr Kemp agreed that he did not know how long Ms Cook’s shift lasted or how long she worked at the BCS machine during each shift but, by the end of the shift, “she would have done a lot of time with her arm away from the body”. He did not think it made a great deal of difference how long she did that repetitive action for. He thought both heavy lifting and awkward lifting of any sort could provoke such symptoms but he agreed he did not obtain a history from Ms Cook of any such lifting. He agreed that, if Ms Cook did not perform such action with her left arm there was no doubt that symptoms would be less likely.
Dr Maxwell
Dr Maxwell saw Ms Cook for assessment on 1 December 2014. Like Dr Kemp, he found diagnosis of her diffuse symptoms difficult but he thought her present symptoms were coming mostly from her cervical spine. He did not consider the changes in her cervical spine to be significant. He could not identify any pathology responsible for her shoulder symptoms. He gave evidence he could find nothing to suggest any changes were due to trauma, rather they were “almost universal with aging” and consistent with a woman of Ms Cook’s age.
Unlike Dr Kemp, Dr Maxwell said he did not detect signs of subacromial impingement in either shoulder on movement (a finding with which Dr McGill concurred) and, absent radiculopathy, he found nothing of significance.
Dr Maxwell gave evidence that, given that Ms Cook did not work with either elbow above chest height after 5 September 2011, and given the weight restrictions imposed on her from that date, he could not discern any relationship between her continuing symptoms and her employment. Nor did he think, given her duties at the time, that they caused her initial problem. In the absence of any identifiable pathology he did not consider Dr Wallace’s diagnosis of continuing musculoligamentous strain “feasible”.
Dr McGill
Dr McGill saw Ms Cook for assessment in November 2012, April 2013 and June 2014 and provided reports of his assessment. He also produced a report in January 2014 expressing views on other medical reports.
In his first report, Dr McGill recorded that Ms Cook “currently uses her left hand when clearing mail from the top row of stackers at the BCS”. As noted above, this appears to be incorrect but nothing turns on this. Dr McGill noted that symptoms in Ms Cook’s right arm had improved but not resolved.
In April 2013, Dr McGill reported that Ms Cook had “substantial degenerative change” in her cervical spine, and mild degenerative change in her left shoulder similar to that in her right. He thought it “reasonable to conclude that [Ms Cook] experienced a work-related temporary exacerbation of symptoms as a result of the activities she performed on 30 January 2013”. He did not think there was any worsening of her underlying pathology, and he believed the effects of the aggravation had ceased. He thought the physical state of her upper limbs was a reflection of “her constitutional makeup including minor degenerative change in both shoulder girdles and moderate degenerative change in her cervical spine.”
Ms Cook’s duties caused her to experience pain in her upper limbs from time to time but it was unlikely they caused any structural damage and “the physical makeup of her neck and shoulders currently is the same as would have been the case had she not performed work for Australia Post”. It was significant, in Dr McGill’s view, that Ms Cook had not been performing any work above shoulder height for some time when he saw her.
In his final report in June 2014, Dr McGill said he thought it likely that activities involving repetitive elevation of her elbows above shoulder height influenced Ms Cook’s symptoms. However, given she had been performing restricted duties “for many months” it was unlikely her work duties continued to play any significant role in her symptoms. (By that time, Ms Cook had in fact been on restricted duties for approximately two years).
Consideration
By s 5A(1) of the Act, injury means:
(a)a disease suffered by an employee; or
(b)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; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.
By s 5B(1), disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
Turning first to the question of whether the effects of Ms Cook’s accepted right shoulder injury had ceased by 12 September 2014, I am satisfied on the material before me that they had.
Given their limited understanding of Ms Cook’s duties at the relevant time, the evidence from Dr Wallace and Dr Kemp was of limited assistance, particularly in relation to causation. I prefer the evidence of Dr Maxwell and Dr McGill, in that regard. Although Dr McGill appeared to misunderstand Ms Cook’s duties in late 2012, ultimately that had no bearing on his opinion.
There is no argument that Ms Cook had degenerative changes in her right shoulder prior to 5 September 2011. All the doctors agreed she had similar symptoms, and similar findings on radiological investigation, in both shoulders. There is no dispute that they were unremarkable in a woman of her age. There is no evidence, and Ms Cook does not suggest, that she suffered any specific trauma to her neck, right shoulder or arm on that date. With the exception of a brief period in 2012, she did not perform any duties after September 2011 of the kind that Dr Maxwell and Dr McGill agreed could cause such symptoms, that is, working with her arm and elbow above shoulder height. In those circumstances, I am satisfied that any continuing symptoms in her right shoulder from 12 September 2014 were the result of her pre-existing degenerative changes and were not related to her employment.
Dr Kemp agreed that, absent activity with her elbow above shoulder height, it was “less likely” that Ms Cook’s duties played any part in her left shoulder symptoms. Nevertheless, Dr McGill was prepared to accept that she may have suffered a temporary exacerbation of her symptoms as a result of her employment on 30 January 2013, and the respondent accepted liability for that temporary exacerbation. I accept Dr McGill’s evidence that any symptoms that continued after 10 April 2013 were the result of her pre-existing condition and not her employment.
Conclusion
To the extent that any symptoms relating to Ms Cook’s right shoulder subacromial bursitis after 5 September 2011 were the result of her employment, I am satisfied on the material before me that they ceased by 12 September 2014. To the extent she suffered an aggravation of her pre-existing degenerative changes in her left shoulder, elbow, arm and neck from 30 January 2013, I am satisfied that its effects ceased by 10 April 2013. I affirm the decisions under review.

64. I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey.

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Associate
Dated 30 April 2015

Date(s) of hearing

9 – 12 March 2015

Representatives for the Applicant

Ms Catherine Spain, Counsel

Mr Peter Hansen, Carroll & O’Dea Solicitors

Representatives for the Respondent

Mr Paul Jones , Counsel
Mr Graham Jones, Graham Jones Lawyers

[2015] AATA 280

30 April 2015

Key Legal Topics

Areas of Law

Workers Compensation Law

Legal Concepts

Compensation

Breach of Contract

Unconscionable Conduct

Causation

Medical Evidence

Pre-existing Condition

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4187 2014/4674 2014/5684
Re	Carolyn Cook
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Senior Member J F Toohey
Date	30 April 2015
Place	Sydney