Cheung and Australian Postal Corporation
[2008] AATA 375
•9 May 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 375
ADMINISTRATIVE APPEALS TRIBUNAL )
)
GENERAL ADMINISTRATIVE DIVISION ) No N2006/452 N2006/455 2007/824
2007/1106 2007/4828 2007/4996
2007/5047 2008/182 2008/183
Re SOPHIE CHEUNG Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr J D Campbell, Member Date9 May 2008
PlaceSydney
Decision The decisions under review are affirmed.
...............[sgd]...............................
Dr J D Campbell Member
CATCHWORDS
WORKERS COMPENSATION - diffuse symptomatology involving both upper limbs, both shoulders and neck - diagnoses of underlying conditions - relationship to work – Applicant's credibility - claim for incapacity payments for various periods off work 2005, 2006 and 2007 - claim for medical expenses.
Safety Rehabilitation and Compensation Act 1988, sections 16 and 19
REASONS FOR DECISION
9 May 2008 Dr J D Campbell, Member 1. This decision involves 9 applications to the Administrative Appeals Tribunal. They are: N2006/452, N2006/455, 2007/824, 2007/1106, 2007/4828, 2007/4996, 2007/5047, 2008/182, 2008/183. Another application, N2006/456, has been withdrawn by the Applicant. There are 5 sets of documents that were provided by the Respondent and are referred to in this decision: 1T, 2T, 3T, 4T and 5T.
2. Ms Cheung was born in Vietnam on 28 January 1964. Ms Cheung migrated to Australia in 1979 and left school at the end of year 10 in 1981. Ms Cheung commenced working as a process worker at Arnotts Biscuits in 1982. Ms Cheung is married and has two children, born in 1985 and 1988.
3. Ms Cheung commenced work as a mail officer with Australia Post on 16 October 1989 at St Leonards Centre, where she worked on the Mail Receiving Docks lifting bags of mail from a conveyor belt and placing them in a Unit Loading Device (ULD) for four to six hours a day and sorting mail for the remainder of the shift. For one week every month Ms Cheung would work at the load dock, where she would remove bigger and heavier bags from one ULD, sort the bags and place them in another ULD.
4. On 14 November 1995 Ms Cheung completed and filed an incident report in which she complained of symptoms of numbness, pain and heat across three fingers of her right hand which she had reported to her doctor on 7 November 1995 and which were more noticeable when feeding the Optical Character Reader machine (OCR) on 9 November 1995. A further incident report was completed and filed by Ms Cheung on 22 November 1995, in which Ms Cheung noted the symptoms referred to in her earlier report together with similar symptoms in her left hand, pain in the right elbow and left foot when lifting heavy bags at the mail receiving dock. Dr Tang, Ms Cheung’s treating general practitioner, in noting her symptoms, concluded that she was suffering from right elbow tendonitis and recommended she be placed on light duties (lifting less than three kilograms). Ms Cheung stated that her light duties work program involved tray loading for the OCR (rocket launcher activity), sorting mail, dealing with damaged mail, and insufficient address on mail. Ms Cheung completed and filed a further incident report on 5 June 1997, in which she described pain in her left elbow when undertaking the range of restricted duties nominated earlier and in particular when sorting mail on the Vertical Sorting Division (VSD). Ms Cheung stated that she received pain tablets from Dr Tang, who referred her to Dr Lee, an orthopaedic surgeon, who injected both elbow joints of Ms Cheung.
5. Ms Cheung stated that in 1999 she was referred by Dr Lee to Dr Sun (specialist in rehabilitation medicine) who prescribed medication for her. She stated that in mid 1999 she was placed on a program at work, which involved work on the OCR machine and indexing, with the latter activity causing her pain in both elbows, and work on the OCR machine causing pain in the left hand, right shoulder and neck. On 9 July 1999 Ms Cheung completed and filed an incident report detailing such injury to her shoulders, fingers, thumbs and wrists (1T87). After a short time off work, Ms Cheung stated that she returned to work, where she undertook various activities involving the rocket launcher, sorting mail and dealing with insufficiently addressed mail. Ms Cheung stated that her shoulder and neck symptoms continued to worsen – with the worsened situation continuing to this time.
6. Ms Cheung made a claim for compensation in relation to the injury of 9 July 1999 and the symptomatology arising from such injury on 25 August 1999 (1T92). A Respondent’s reconsideration decision of 6 March 2001 concluded that the Australian Postal Corporation (Australia Post) was liable to pay compensation in respect of “supraspinitis tendonitis tear left shoulder” but not liable to pay compensation in respect of right shoulder and neck. Further the decision of 6 March 2001 determined that Australia Post was liable to pay 10 per cent whole person impairment in relation to the “supraspinitis tendonitis tear left shoulder” (1T126). On 22 June 2001 the Administrative Appeals Tribunal, having set aside a reconsideration decision of 8 October 1999 (not to pay compensation for injuries to shoulders arising from alleged injury of 9 July 1999) and a reconsideration decision of 8 July 1999 (that Australia Post is no longer liable to pay compensation for “lateral epicondylitis right elbow”), varied the determination of 6 March 2001 by adding that Australia Post was liable to pay compensation for “chronic pain syndrome in both upper limbs and neck” (T142, p345).
7. Ms Cheung was transferred to the Sydney East Letters Facility Centre in September/October 2002. At this facility Ms Cheung stated that her job involved sorting of competition mail, printing labels and doing culling face up on the table, activities in which she had control over what she was doing. Ms Cheung said that she found those activities more comfortable to perform and flexible for her, with neck pain occurring when she bent to do paperwork. Ms Cheung recorded in her statement the restrictions in her work rehabilitation program from 29 June 2001 to include:
· Avoid lifting greater than five kilograms.
· Avoid above shoulder height lifting.
· Avoid rapid movements with both arms.
· Avoid pushing or pulling objects providing a greater resistance than five kilograms.
· Limit neck bending and twisting.
· Avoid repetitive or vigorous use of arms (Exhibit A2).
8. Ms Cheung was transferred to the Sydney West Mail Facility Centre on 10 October 2005. Ms Cheung stated that duties assigned at this facility included label checking on the Bar-code Sorter Machine (BCS), sorting on the Manual Modular Frame (MMF) and printing the labels on the BCS machine as well as quality control on the BCS machine, and the MMF machine, checking of incomplete addresses by book, and quality control on mail from the ULD. Ms Cheung noted that her workplace restrictions from 10 October 2005 did not include: “limit neck bending and twisting” and “avoid repetitive or vigorous use of arms” (being the final two restrictions in the work rehabilitation program of 29 June 2001, with the first four restrictions being maintained in the workplace assessment of 11 October 2005 (Exhibit A2)).
9. In undertaking the sorting on the MMF machine, Ms Cheung stated that it involved a repetitive process, picking up and holding letters in the left hand and using the right hand to place the letter in one of the 81 slots on the frame. Ms Cheung stated that her supervisor was concerned with her slow rate of sorting on the MMF, an activity which she did seated, with her posture equating her shoulder height with the fifth row from the bottom (there being six rows). Ms Cheung stated that she did this activity for one section (over an hour), which reverted to one hour from 9 November 2005, a break of an hour and then a further hour sorting, cumulating to four or five hours a day sorting. Ms Cheung stated that this stopped after she complained on 8 December 2005, after which she has not sorted mail on the MMF. During the period on the MMF (2 months), Ms Cheung stated that she experienced pain in her left shoulder (asserting some grabbing movement of left arm above 90 degrees), with her shoulder height equating to the level of the fifth row.
10. Ms Cheung stated that she also worked label checking on the BCS machine between 10 October 2005 and December 2005. She stated that this activity caused her neck problems because, in her opinion, with the stackers arranged from her knee level to mid sternum (four layers), there were difficulties with checking the lower two levels and difficulties with the trays at the back on the fifth level. Similar difficulties were said to be experienced by Ms Cheung when undertaking quality control of letters in the BCS, with Ms Cheung suggesting that she had to elevate her arm above shoulder height to do back trays on the fourth level of the BCS. Ms Cheung complained that she was unable to do this work, with her ceasing to do such work at a time prior to ceasing the MMF activity on 8 December 2005.
11. After ceasing work on MMF and BCS machines, Ms Cheung stated that she undertook the activity of checking incompletely addressed mail using a computer, where again, she stated, she experienced difficulty because the chair was too high and the table too low and she had to do this for four to five hours. She stated that she continued with this activity until February 2007, when she had to cease because of neck pain. In the same period (December 2005 to February 2007) Ms Cheung was printing labels on the BCS machine, but this activity was ceased because she was unable to reach the label on the BCS machine, even though she had been doing it since October 2005, with someone else organised to put the label at the higher tray level.
12. Since February 2007 Ms Cheung stated that she has been checking Return to Sender Mail (RTS) by book, and quality control and printing labels on the MMF – all of which were ceased, with Ms Cheung now only checking insufficiently addressed mail by book for one hour, RTS culling on the table (which she says causes neck problems because the table is too low) for three consecutive hours, and printing labels on the multi layer OCR for fifty minutes (which she says causes shoulder problems because she has to reach the top tray, with her arm elevated above the shoulder). Ms Cheung stated that after four and a half hours she leaves work, this having commenced from 6 September 2006. Ms Cheung stated that she currently continues to experience ongoing pain in her neck and shoulders, arms and finger, with her hands feeling cold with one side often purple in colour. Ms Cheung stated she takes Panadol for pain (one a day for variable days, or twice a day).
13. In early 2006 Ms Cheung sought payment of compensation pursuant to section 19 (Incapacity Payments) of the Safety, Rehabilitation and Compensation Act 1988 (the Act) for the following periods:
·24, 25 October 2005.
·11, 12, 13, 14, 15, 16, 17 November 2005.
·8 February 2006.
·20, 21 February 2006.
·7, 8, 9, 10 March 2006.
·26, 27, 28, 29 March 2006.
On 10 April 2006, the Respondent denied liability to pay compensation for incapacity for the nominated days (1T242). This decision was affirmed after reconsideration by the Respondent on 20 April 2006 (1T249). This is the mater dealt within matter N2006/452.
14. On 9 January 2006, the Respondent wrote to Ms Cheung of his intention to cease paying further compensation. On 11 April 2006, the Respondent advised Ms Cheung that a determination had been made that there is no present liability under the Act to pay compensation in respect of the previously accepted shoulder and neck conditions. This decision was affirmed after reconsideration on 20 April 2006, with the Respondent determining that they were not presently liable to pay compensation under the Act for the shoulder and neck injury pursuant to sections 16 and 19 of the Act (1T250). These are the issues dealt within matter N2006/455.
15. On 23 February 2006 Ms Cheung lodged a claim for further permanent impairment to the upper limbs/shoulder conditions. This claim was denied on 13 April 2006, with the denial being affirmed after reconsideration in a determination by the Respondent dated 20 April 2006 (1T257). This is the matter dealt within N2006/456. As mentioned above, this application has been withdrawn.
16. Ms Cheung made further claims for compensation in respect of incapacity payments for the periods 28 – 29 August 2006, 7 - 8 September 2006, 9 October 2006 and 6 – 11 February 2007. Liability to pay compensation was denied by the Respondent on 26 February 2007 (2T27), with this decision being affirmed in a reconsideration determination of 29 March 2007 (2T31). This claim is considered within matter 2007/824.
17. Ms Cheung made a claim for reimbursement in respect of the cost of a medical consultation dated 7 September 2000 with Dr Tang for neck and shoulder pain. The claim was denied by the Respondent on 26 February 2007 (2T28) with this decision being affirmed in a reconsideration determination dated 14 March 2007 (2T30). This issue is considered within matter 2007/1106.
18. Ms Cheung made a further claim for compensation for incapacity payments for the periods 23-24 August 2007 and 14 September 2007. These claims were denied on 20 September 2007 (3T5, 6), with such denials being affirmed in reconsideration determinations made on 2 October 2007 (3T8, 9). These issues are considered within matter 2007/4828.
19. Ms Cheung made a further claim for incapacity payments for the period 23 – 24 August 2007. This claim was denied by the Respondent on 20 September 2007 (4T3). This determination was affirmed in a reconsideration decision dated 12 October 2007 (4T8). These issues are considered within matter 2007/5047.
20. Ms Cheung made another claim for a medical expense, namely a consultation with Dr Tang on 14 September 2007 for neck and shoulder pain. Liability was denied on 20 September 2007 (4T4), with affirmation of this decision in a reconsideration decision dated 20 October 2007 (4T6). This issue is considered within matter 2007/4996.
21. Ms Cheung made further claims for partial incapacity payments for 25 October 2007 and 22 November 2007 relating to attendance at medical appointments relating to a shoulder and arms condition arising out of an injury in July 1999. Both claims were denied by the Respondent on 5 December 2007 (5T6, 7), with reconsideration determinations affirming both decisions on 21 December 2007 (5T9, 10). These matters are considered within matters 2008/182 and 2008/183.
issues
22. The relevant issues in this matter are:
(a) From what conditions does Ms Cheung suffer, and what is the appropriate diagnosis for each condition?
(b) For each diagnosed condition, has it arisen out of or in the course of Ms Cheung’s employment?
c)Has each diagnosed condition been aggravated by Ms Cheung’s employment?
(d) Is Ms Cheung entitled to payment of compensation in relation to incapacity payments and/or medical expenses after 11 April 2006 for shoulder and/or neck injury?
(e) Is Ms Cheung entitled to payment for compensation in relation to incapacity payments and/or medical expenses after 24 October 2005 and prior to 11 April 2006 for shoulder and/or neck injury?
decisions
23. For the reasons stated later in this decision I conclude that:
(a) Ms Cheung suffers from the following diagnosed conditions:
(1) Cervical Spondylosis.
(2) Bilateral Rotator Cuff Disease.
(3) Self reported Non Specific Pain Syndrome.
(b) The first two conditions are of a constitutional degenerative nature and have not arisen out of and/or in the course of Ms Cheung’s employment, nor has there been any material contribution by the employment to either disease. Similarly, the self reported chronic pain syndrome is found not to be work related.
(c) None of the conditions have been aggravated by Ms Cheung’s employment.
(d) Ms Cheung is not entitled to payment of compensation for incapacity payments and/or medical expenses after 11 April 2006.
(e) Ms Cheung is not entitled to payment of compensation for incapacity payments and/or medical expenses after 24 October 2005 and prior to 11 April 2006.
further evidence from ms cheung
24. It was noted that as of 10 July 2006 Ms Cheung was required to perform insufficient address by book (two separated one hour periods), culling face up (two separated one hour periods), printing labels for the Multi-line Optical Character Reader (MLOCR), insufficient address by book or computer, and quality control on the MMF (T7).
25. It was further noted that as of 1 September 2006, Ms Cheung was required to perform the following duties (1T15):
·Quality Control for MRC – sitting or standing – 6.15am to 7am.
·Culling Return to Sender mail – standing – 7.05am to 8am.
·Printing labels for the MLOCR – standing – 8.15am to 8.45am.
·Culling RTS mail – standing – 8.45am to 9.15am.
·Insufficient address by book – sitting – 9.20am to 10.25am.
·Culling redirected mail – standing – 11am to 12pm.
·Sorting mail on MMF – sitting – 12.15pm to 1pm.
·Face up culling – standing – 1.00pm to 1.46pm.
26. Ms Cheung stated that by the time the work program of 1 September 2006 was fully introduced, she was leaving work by 10.25am; with the last time that she had undertaken sorting on the MMF machine being before February 2006. Ms Cheung stated that she had been doing quality control on the MMF machine since arriving at the Sydney West Facility Centre in October 2005, and that she was still doing it. Ms Cheung stated that when doing such an activity, she does have to raise her elbow above the shoulder when reaching to the back part of the top shelf, while sorting to the fifth row of the MMF does not require raising the elbow above the shoulder.
27. On 9 November 2006 a workplace assessment was conducted and in the documentation of such (1T224), it is noted that Ms Cheung’s concerns about particular difficulties arising from visual checking of labels and quality control on the BCS machine and checking of incomplete addresses were considered and addressed. Ms Cheung stated that she believed she did raise issues about work on the MMF machine, but it was not addressed. Ms Cheung further stated that when sorting on the MMF, she experiences pain in her left hand when she grabs a handful of mail from the third tier of the stack, with the pain extending to both shoulders, as she has to elevate her left arm to 90 degrees. Ms Cheung stated that she is able to do quality control on the MMF, but with the sorting she has to look up and down a lot and she finds the activity tiring, as well as experiencing discomfort because of sorting using her right arm into the higher lateral apertures.
28. Ms Cheung confirmed that she had not undertaken quality control on the BCS machine since November 2005, because of difficulties in reaching the top row. Ms Cheung also confirmed that while it was possible to seek assistance in relation to the quality check on the BCS to remove the top tray to the MMF machine, there was no assistance forthcoming, if she had so requested. Ms Cheung also affirmed that the difficulty in undertaking checking incomplete addresses by computer related to the desk height and a non adjustable chair and that despite complaints, they were never replaced. Further Ms Cheung stated that between 8 December 2005 and March 2006 she would spend four to five hours every day at the computer doing incomplete addressed mail, with the period being interrupted with breaks (lunch and tea [1T p556]). Ms Cheung confirmed that neither doing incomplete addresses by book or by computer involved lifting her right arm above her shoulder – this being a similar situation with printing labels on the BCS or the MLOCR machines, an activity which she undertook for 30 minutes in the morning, not 50 minutes, and an activity which she did not do for 50 minutes after her luncheon break, an assertion she had made in her statement (Exhibit A2).
29. In relation to culling mail, Ms Cheung confirmed she had difficulty picking mail from a full tray – that there was no one around to seek help from. In relation to culling face up duties and culling of non machineable mail Ms Cheung stated that both activities involved raising the elbow above the shoulder. Ms Cheung further stated that from 10 July 2006 she was culling face up and/or culling RTS mail between 7.15am and 10.25am, as label printing activities on the MLOCR were not required. Ms Cheung stated that her work schedule was again changed in September 2006 because of her complaints about difficulties (pain on face up culling, culling of RTS mail not on the table).
30. A video was shown to Ms Cheung, which demonstrated a range of activities in the workplace, undertaken by a person who Ms Cheung knew and whom she believed to be of a somewhat shorter stature than herself. Ms Cheung offered the following comments:
·In relation to culling RTS mail – “she’s doing it, is different from my doing… because she’s normal. She don’t have problem… I have neck and so the problem. I can do it”.
·Insufficient address by computer – different table -- “I can do it if they’re changing the chair and the table”.
·Printing labels for the MLOCR – “I can do it, I do it different to her…I’ve got a problem.”
·Quality control on the MMF – “the way she’s doing it, I cannot do it… because she doesn’t have the disability of the shoulder and neck”.
·Sorting at the MMF (sitting) – “the way she sits you don’t need to but you want to sit on the correct way, you have to” (issue of raising elbow above shoulder).
·Feeding the BCS – “I don’t do this job”.
·A range of other duties that she was not undertaking – “I cannot do it”.
31. Ms Cheung stated that she was unable to remember receiving two letters from Australia Post in September 2005 requesting a new medical certificate covering a number of issues – the significance of which she did not understand. Ms Cheung confirmed that she did not see Dr Sun between 16 May 2001 and 7 February 2006. On the latter occasion Ms Cheung affirmed that she did tell Dr Sun that she had difficulty with housework (vacuuming, dusting and shopping) and that driving aggravated the left arm.
32. Ms Cheung confirmed that when she consulted Dr McGill (consultant rheumatologist) in December 2005, she showed him some photographs of the three modules of the MMF into which the mail was sorted, with a person seated on a rotating chair in front of the three modules. Ms Cheung also stated that she told Dr McGill that it was uncomfortable to sit on the chair because of her neck; that she would only sort into the bottom four rows. In relation to the BCS machine Ms Cheung agreed that she was able to print labels, but not do quality control and label checking on the tray of the BCS machine. Further Ms Cheung confirmed that she had told Dr McGill in December 2005 that she could do the labels until pushed by her supervisor to work at a faster rate, but not face up culling on the trolley, and was able to undertake checking postcodes on insufficiently addressed mail and culling mail face up on a table.
33. Ms Cheung saw Dr McGill again in December 2006, but Ms Cheung stated that she was unable to remember the symptoms she complained of either in 1995 or 1999, while she was able to remember telling him of increased pain in 2005 because of all the new work, the latter being denied in cross examination. It was put to Ms Cheung that at the examination by Dr McGill in December 2005, she did not cooperate and at times demonstrated an exaggerated response, with Ms Cheung not accepting either proposition. Similar circumstances were put to Ms Cheung concerning Dr McGill’s examination of 25 August 2006, with Ms Cheung disputing the inconsistency in her lifting endeavours (reflex hammer (problems)) as opposed to her ability to lift a bag of x-rays (no problem); her ability to place her hands behind her neck, and in the light touch sensation; Ms Cheung stated that her responses depended upon the level of pressure exerted with the application of the cotton wool, and/or pinprick.
34. Ms Cheung confirmed in re-examination that she had been involved in printing labels in the afternoon on the MMF machine from 10 October 2005 until 10 July 2006.
the medical evidence
35. Dr Tran, the treating general practitioner, provided a medical certificate on 4 September 1995 for Ms Cheung in which he noted that Ms Cheung was suffering from right middle finger arthritis and a left heel plantar spur, causing heel pain. Dr Tran considered Ms Cheung was fit for light duties which did not involve prolonged standing or repetitive use of the right hand (1T3, p8). Such light duty restrictions were continued up to 15 November 1995 at which time Dr Tang considered Ms Cheung unfit for work on account of right middle and index finger tendonitis, right elbow tendonitis and left hand muscular pain (1T3, p12). Ms Cheung continued to experience a painful lateral epicondylitis of the right elbow with episodic absence for work while continuing with light duties at work until February 1997, at which time the symptoms extended to the left elbow (1T3, p27). The latter condition, Dr Tang believed to be the consequence of repetitive overuse of the left elbow. Dr Tang recommended a lifting restriction of five kilograms using both arms and no repetitive movement of straight arms (medical certificate of 18 June 1997). Dr Tran prescribed painkillers and referred Ms Cheung to Dr Lee (orthopaedic surgeon) and Dr Potter (rheumatologist). Ms Cheung continued to attend Dr Tang for treatment of her lateral epidondylitis of both elbows until 12 July 1999, where in a medical certificate Dr Tang notes that Ms Cheung is suffering from acute left shoulder pain (1T3, p51).
36. Ms Cheung completed and lodged a claim for compensation on 28 November 1995 in which she nominated her conditions to include “two hands and right elbow tendonitis and left muscular pain” (1T20). Ms Cheung saw Dr Dowda (occupational physician) on 28 November 1995, and in his report Dr Dowda concluded that Ms Cheung was suffering from lateral epicondylitis of the right elbow, with no evidence of tendonitis in the forearm or wrist. Dr Dowda considered that at that time Ms Cheung was quite limited in the physical activities that she could do at work. Dr Dowda also suggested a referral to a rheumatologist for further assessment. On 22 January 1996, Dr Lee confirmed that Ms Cheung was suffering lateral epicondylitis of the right elbow, and had treated her with an injection to the affected joint (1T30). On 24 April 1996, Dr Dowda confirmed that Ms Cheung was suffering a relapse of lateral epicondylitis in her right elbow following the completion of her return to work program in February 1996 (1T32). On 3 December 1996 Dr Dowda concluded that Ms Cheung was still suffering with lateral epicondylitis of the right elbow, but did not have a similar condition in her left elbow, despite complaining of some symptoms (1T37). Australia Post admitted liability for an aggravation of a pre-existing condition, namely lateral epicondylitis right elbow on 8 January 1996.
37. In a report dated 11 February 1997, Dr Potter concluded that Ms Cheung suffered from epicondylitis of both elbows, with the right far worse than the left, that the conditions were work related and that the conditions were not an aggravation of pre-existing complaints, with Dr Potter unable to give a precise date of expectation of resolution (1T43). Ms Cheung lodged a claim for compensation for epicondylitis of the left elbow on 5 June 1997 (1T47). Liability was accepted by Australia Post on 30 June 1997 (1T50). On 13 November 1997 Dr Lee reports that Ms Cheung’s lateral epicondylitis has improved a great deal (1T53).
38. Ms Cheung was assessed by Dr Gliksman (consultant in occupational medicine) on 18 February 1999. In his report (1T64) Dr Gliksman noted that Ms Cheung was complaining of pain over the lateral portion of her left elbow, when lifting above shoulder height and when performing repetitive grip work with her left hand. Ms Cheung is also noted as complaining of numbness in the left hand, with the distribution not following any single peripheral nerve pattern. Dr Gliksman stated that the only clinical finding was tenderness to palpation over the right and left epicondyles, with no clinical objective signs of any ongoing epicondylitis. Dr Gliksman stated that his clinical examination did not reveal a clear pathophysiological basis for the persistence of Ms Cheung’s presenting problems. Dr Gliksman confirmed his opinion on 12 March 1999, after receiving Dr Lee’s report of 9 March 1999 (1T67).
39. In a report dated 12 May 1999 (1T72), Dr Sun concluded that Ms Cheung had a faulty neck and upper back posture with tenderness over the trapezii, tenderness over the forearm musculature and distal ulna of both upper limbs – this clinical picture is consistent with bilateral forearm overuse syndrome and trapezius myalgia. Dr Gliksman in a report dated 20 May 1999 (1T77) disagreed with Dr Sun’s opinion, while reconfirming his earlier detailed opinion. Liability to pay compensation in relation to the aggravation of a pre-existing condition of lateral epicondylitis right elbow was ceased by Australia post on 28 May 1999, with the decision affirmed after reconsideration on 8 July 1999 (1T86).
40. On 14 July 1999 Dr Sun reports that Ms Cheung is experiencing progressive worsening of left shoulder pain on using the OCR machine at work on three occasions. Ms Cheung submitted a claim for compensation for pain in the neck and both shoulders on 17 August 1999, occasioned when working on the OCR machine, clearing stackers and trolleys (1T92). Australia Post denied liability on 30 August 1999 (1T98), with this decision being affirmed after reconsideration on 8 October 1999 (1T101). On 17 January 2000 (1T104) Dr Mellick (consultant neurologist) reported that Ms Cheung had complained to him of pain in both upper limbs, moreso on the left than the right. Dr Mellick reported that the symptoms involved both wrists with extension on to the palmar and dorsal surfaces of the hands, a proximal extension to both forearms and shoulders. Pain was described to involve the anterior and posture parts of the shoulders, the posterior cervical region and the region between the shoulder blades. Dr Mellick noted neither abnormality of cervical, thoracic or lumbar conture, posture or movement, nor any disorder of the range of shoulder, elbow, and wrist or finger movement. Dr Mellick noted the results of investigations to demonstrate no abnormality, apart from damage to the proximal phalanx of the right thumb, and in particular that an ultrasound of the left shoulder dated 11 November 1999 reported the rotator cuff to be intact, with a CT scan of the cervical spine on 10 November 1999 showing no evidence of disc prolapse or bulge. Dr Mellick concluded that Ms Cheung’s symptoms were not arising as a result of any physical disorder, with the pain being associated with the phenomenon of somatisation, with such symptoms arising as a result of complex interaction of social, cultural and constitutional factors. Dr Mellick also notes that such pain symptoms should not be regarded to be determined by the circumstances of her employment.
41. Dr Champion (consultant rheumatologist) in a report dated 7 April 2000 (1T105), detailed Ms Cheung’s most important disorder as pain related disability at her left shoulder, along with pain at the left side of her neck, together with intermittent elbow and adjacent forearm pain as well as pain in wrists and hands. Following examination and review of investigations Dr Champion concluded that Ms Cheung has acquired an occupational cervicobrachial disorder with the following components:
· A cervical spinal pain syndrome.
· A painful disorder of the left shoulder with preservation of a full range of movements, with features consistent with rotator cuff tendonitis.
· Minor abnormal mechanosensitivity of the median nerves.
· Bilateral ulnar neuropathy particularly on the left side.
· Lateral epicondylitis currently more prominently of the left side.
Dr Champion considered the condition to be permanent and concluded that Ms Cheung had 24 percent whole person impairment.
42. On 10 May 2000, Dr Lee, in a report (1T108), concluded that Ms Cheung has had a multiple soft tissue strain, with a permanent whole person impairment of 19% pursuant to Table 14.1.
43. On 20 July 2000 an MRI scan of the left shoulder is reported as demonstrating “supraspinatus tendonopathy with partial tear and impingement, subdeltoid bursitis. SLAP Type II lesion of the bicipital tendon insertion” (1T114). Dr Lee in a report dated 2 August 2000 (1T116) considered that Ms Cheung should stay permanently on light duties in the light of such findings.
44. In a report dated 7 August 2000 (1T117), Dr Potter considered that Ms Cheung’s presentation should be understood in three chapters, namely:
(1) The symptomatic development of bilateral elbow and forearm pain, quite precise, straightforward during 1995.
(2) As the years have progressed Ms Cheung has developed a widespread pattern of pain involving neck, shoulders, arms and forearms, which are not typical of major rheumatic disease or definable injury and would suggest extra behavioural psychosomatic factors may operate.
(3) In mid- 1999 Ms Cheung became aware of a significant new onset of focal left shoulder pain and restriction, with the obvious physical signs, namely loss of movement and pain on movement, typical of a left supraspinatus tear.
45. At examination Dr Potter recorded diffuse tenderness in upper limbs, neck and shoulder girdle. Dr Potter concluded that Ms Cheung did not have a problem with her right middle finger; that the soreness in the elbows is not typical of epicondylitis; that there are broad areas of tenderness in the neck, shoulder and both arms that is typical of fibrositis and almost certainly a consequence of psychosomatic muscle hernia and that she has torn her left rotator cuff at the supraspinatus tendon. Dr Potter considered Ms Cheung fit to work as long as she avoids any heavy lifting or carrying and moving her left arm above shoulder height. In a further report, dated 7 August 2000, Dr Potter considered Ms Cheung to have 10 per cent whole person impairment pursuant to Table 9.1.
46. In a report dated 18 October 2000 (1T121), Dr Lee, who had noted some tenderness over the anterior aspect of Ms Cheung’s left shoulder in his examination of 10 May 2000 (1T108), observed an apprehension sign in Ms Cheung’s left shoulder at his examination on 6 July 2000, which he believed was indicative of some instability and for which he ordered the MRI scan.
47. On 23 January 2001 Dr Sun detailed a summary report concerning Ms Cheung to her solicitors. Dr Sun stated that he had just seen Ms Cheung on 5 May 1999 and again in his subsequent reviews on 14 July 1999, 18 August 1999, 22 September 1999, and that she failed to attend in November 1999. Dr Sun noted that Ms Cheung’s compliance with the treatment program was suboptimal (August 1999), non compliance with the exercise program (September 1999). Dr Sun reports Ms Cheung as presenting on 23 October 2000 with unresolved left upper limb pain.
48. Dr Evans (specialist physician), in a report dated 25 February 2001 (1T125), noted that Ms Cheung’s main problem was in the left shoulder, then the right arm and then the remainder of her problems. Dr Evans noted Ms Cheung’s complaint of neck pain, which was said to be aggravated by bending or twisting of the neck. At examination Dr Evans noted some over-reaction in relation to tenderness felt in the upper arms, with a large number of affected areas. Dr Evans concluded that assessment was difficult as it involved a significant amount of organic damage and a significant non-organic component. Dr Evans considered that there was mild soft tissue damage to the cervical spine, rotator cuff damage to the left shoulder and possibly to the right, with a whole person permanent impairment of 20 per cent for both upper limbs pursuant to Table 9.4 and 5 per cent for the neck pursuant to Table 9.5.
49. On 6 March 2001 Australia Post in a reconsideration decision of own motion set aside the reconsideration decision of 8 October 1999, and in turn varied the determination of 30 August 1999 to find that Australia Post is liable to pay compensation in respect of supraspinitus tendonitis tear left shoulder sustained on 9 July 1999, but not to pay compensation for the neck or right shoulder arising out of injury sustained on 9 July 1999. Further, the reconsideration determination concluded that Australia Post was liable to pay compensation pursuant to sections 24 and 27 of the Act for 10 per cent whole person impairment in relation to the left shoulder in respect of supraspinitus tendonitis tear left shoulder sustained on 9 July 1999.
50. On 16 May 2001 Dr Sun reported that Ms Cheung had suffered aggravation resulting in bilateral shoulder pain arising from being assigned inappropriate work duties (sorting large VSD magazines and setting up plastic trays) (1T132, 136).
51. In a report dated 22 June 2001 (1T141) Dr Maxwell (consultant orthopaedic surgeon) noted Ms Cheung’s current symptoms of pain in the left shoulder, which radiates down the anterior aspect of her left forearm, together with numbness radiating down her arm. Ms Cheung is recorded as also complaining of pain in her right shoulder and right side of her neck which radiates to her elbow. Dr Maxwell notes that an ultrasound of Ms Cheung’s left shoulder on 14 June 2000 is reported as showing slight swelling of the supraspinatus tendon and there appears to be impingement on abduction. At examination Dr Maxwell found Ms Cheung to be “emotional and tended to hyperventilate”. Dr Maxwell observed minimal restriction of movement of cervical spine during speech and movement around the room, while at examination there was some limitation together with pain. Dr Maxwell concluded that Ms Cheung was difficult to assess, because there was such a large non organic component to her condition. Dr Maxwell, while noting that the MRI of the left shoulder appeared to indicate some pathology in the left supraspinatus tendon, the clinical picture of the pain being not localised to the shoulder and upper arm does not fit supraspinitus tendonitis. Dr Maxwell concluded by stating that Ms Cheung’s work activities have not caused specific injuries.
52. On 22 June 2001 the Administrative Appeal Tribunal set aside the reviewable decisions of Australia Post of 8 July 1999 (not to pay compensation for aggravation of pre-existing conditions of lateral epicondylitis right elbow with date of effect being 28 May 1999) and of 8 October 1999 (not liable to pay compensation for pain in both shoulders and neck). Further the Tribunal varied the reviewable decision of 6 March 2001 by adding, in effect, that compensation is payable for chronic pain syndrome in both upper limbs and neck, with date of effect for the decision being 28 May 1999.
53. In a report dated 26 June 2001 (1T143), Dr Gliksman reported that Ms Cheung had experienced a gradual onset of pain in both shoulders around June/July 1999, with the left being worse than the right. Ms Cheung is reported as stating that the pain radiated into both upper limbs with paraesthesia developing in the left upper limb together with some cervical pain. At examination Dr Gliksman found no restriction of movement of the cervical spine, and restricted movements in both shoulders, the left more so than the right. Dr Gliksman recommended that Ms Cheung not perform tasks requiring pushing of ill-fitting trays into the stacker on the MLOCR machine.
54. I note that Ms Cheung suffered a misadventure when driving to work on 26 February 2003 (1T208). As observed from the compensation claim there are variable dates recorded at pp 476, 477.
55. In a report dated 8 December 2005 (1T226), Dr McGill details Ms Cheung as having difficulty working on the MMF machine at Sydney West Mail Facility Centre. Ms Cheung is reported as stating that she finds it uncomfortable to sit on the chair because of her neck, and when sitting she sorts only onto the bottom four rows, avoiding the top two rows. Ms Cheung was also reported as stating that she is unable to work on the BCS machine. Dr McGill records Ms Cheung as stating that she was currently doing three hours per shift on the MMF machine, as well as doing labels, quality control, culling and checking postcodes on insufficiently addressed letters.
56. Dr McGill considered the history provided by Ms Cheung was disjointed and her symptoms were poorly defined, diffuse and variable. At examination Dr McGill concluded that Ms Cheung demonstrated a lack of cooperation. Dr McGill further concluded that with the symptom presentation as described by Ms Cheung, such symptomatology was too diffuse to be attributed to any physical disorder, with the examination not suggestive of any physical disorder. Dr McGill considered that Ms Cheung had degenerative changes in the tendons of her left shoulder, but that her symptoms were not related to organic disease. Dr McGill was also of the opinion that there is not a connection along physical lines, between her symptoms and her work duties; that there is no organic basis to justify time taken off work, despite her working within the restrictions which have been implemented.
57. On 9 January 2006 Ms Cheung was advised by Australia Post of their intention to cease payment of compensation in relation to the effects of the injuries sustained on 9 July 1999 (1T227). Ms Cheung lodged a claim for permanent impairment to the right shoulder on 23 February 2006 (1T233). On 10 April 2006 Australia Post advised Ms Cheung’s lawyers that a determination had been made that compensation is not payable for time off on the following dates: 24 – 25 October 2005, 11-17 November 2005, 8 February 2006, 20-21 February 2006, 7-8 March 2006, 9-10 March 2006 and 26-29 March 2006 (1T242). On 11 April 2006 Australia Post advised Ms Cheung’s lawyers that a determination had been made that there was no present liability to pay compensation under the Act in respect of the previously accepted shoulders and neck condition (1T243). On 13 April 2006 Australia Post advised Ms Cheung’s lawyers that a determination had been made that Ms Cheung was not entitled to the payment of compensation for permanent impairment for conditions relating to the upper limbs with dates of incidents being 15 November 1995, 9 July 1999 and 26 February 2004 (1T245).
58. The three determinations referred to in the previous paragraph were the subject of three separate reconsiderations. On 20 April 2006 a delegate affirmed the decision of 10 April 2006 relating to incapacity payments (1T249). On 20 April 2006 a delegate affirmed the decision of 11 April 2006 relating to liability to pay compensation pursuant to sections 16 and 19 of the Act in relation to her shoulder and neck condition (1T250). On 20 April 2006 a delegate affirmed the decision of 13 April 2006 to pay compensation for permanent impairment for the upper limbs/shoulder condition (1T251).
59. In a report dated 27 June 2006 (2T6), Professor Sambrook (consultant rheumatologist) noted that Ms Cheung had stated that the onset of her symptoms at the Sydney West Letter Facility were associated with working on the MMF, which required her to sort mail from a trolley into the frame, often for periods longer than two hours. Ms Cheung also stated that undertaking quality control activities on the stackers of the BCS machine caused her to have to bend her neck frequently, when examining the labels. Professor Sambrook detailed Ms Cheung’s history of symptoms since November 2005 and reviewed clinical investigations made since 22 November 2005. Professor Sambrook noted that an ultrasound examination of the left shoulder of 17 January 2006 again showed supraspinatus tendonitis with impingement on abduction and slight overlying bursal thickening. An ultrasound of the right shoulder performed on 7 February 2006 was reported to show supraspinatus tendonitis with impingement with abduction, with small calcifications within the tendon and mild overlying bursal thickening. A bone scan on 13 February 2006 noted increased uptake in the proximal left humerus, raising the possibility of reflex sympathetic dystrophy. Finally a CT scan of the cervical spine performed on 11 January 2006 noted a very small posterior disc bulge at the C3/4 level, mildly indenting the thecal sac, a small posterior disc bulge at C4/5, mildly indenting the thecal sac and at the C5/6 level, a small osteochondral bar on the right with mild neural exit foramina narrowing on that side.
60. Professor Sambrook considered that his physical findings at examination of Ms Cheung and the clinical investigation undertaken support a diagnosis of bilateral rotator cuff pathology. Professor Sambrook, while noting some features of dysaesthesia and neuropathic pain, concluded that Ms Cheung does not fit the criteria for a complex regional pain syndrome. Professor Sambrook also noted the radiological evidence of early cervical disc degeneration, which he considered to be of uncertain clinical significance.
61. Professor Sambrook noted that rotator cuff pathology can occur as a result of constitutional or age related degeneration. Professor Sambrook noted that there is a history of repetitive use of her upper limbs often above shoulder level; such activities are known to be contributing factors to such rotator cuff pathology. In a further report dated 4 August 2006, Professor Sambrook considered that it was reasonable for Ms Cheung to have taken time off work on the dates earlier nominated up to 20 March 2006, because of increased symptoms occurring on certain days and lasting for several days (2T9).
62. In a report dated 25 August 2006 (2T12), Dr McGill, having re-examined Ms Cheung, reviewed all available clinical investigations and other clinical opinions, concluded:
·Her diffuse poorly defined symptoms are not due to an organic disorder.
·Degenerative changes in the rotator cuff tendon is a common thing.
·Repetitive above shoulder activities have the potential to aggravate degenerative change in the rotator cuff.
·The history of her symptoms and the nature of her work conditions do not suggest she was doing sufficiently prolonged and repetitive above shoulder height work to have any ongoing effect on her rotator cuff.
·The pattern of her symptoms cannot be explained on the basis of rotator cuff disease and either all or the vast majority of her symptoms are non-organic.
63. In a medical report dated 25 October 2006 (2T22), Dr Henke (consultant in rehabilitation medicine) detailed Ms Cheung’s symptom complaints over time, stating that she was generally cooperative during examination, which revealed evidence of diffuse tenderness, hyperalgesia and hyperaesthesia of her limbs, with subjective sensory loss. Dr Henke was unable to find convincing evidence of any major pathology in either shoulder joints, with no evidence of impingement. Dr Henke noted that the symptoms that are produced with movement of these are of the diffuse type and not focused on the shoulders. Dr Henke noted that she had minor degenerative changes in the neck, which could not be considered to have arisen as a result of her duties.
64. Dr Henke concluded that Ms Cheung has a chronic non specific pain syndrome of her upper limbs, shoulder girdle and neck. Further Dr Henke stated:
I am therefore unable to find evidence of any damage to her upper limbs or neck which can be attributed to over use. Personality and other social and psychological factors may play a prominent role in the development and perpetuation of the symptoms. In my opinion it is therefore unlikely that her symptoms arise as result of the effects of her employment.
Dr Henke also acknowledged that once this condition is in place, physical activity carries with it a higher probability of causing temporary aggravations of symptoms.
65. On 26 February 2007 an Australia Post delegate determined that Ms Cheung was not entitled to section 19 compensation payments for the periods 7-8 September 2006, 9 October 2006 and 6-11 February 2007 (2T27). This decision was affirmed upon reconsideration by a delegate on 29 March 2007 (2T31). Similarly, on 26 February 2007, an Australia Post delegate determined that compensation pursuant to section 16 was not payable for the consultation with Dr Tang on 7 August 2006 (2T28). This was affirmed upon review by a delegate on 14 March 2007 (2T30).
66. Dr McGill detailed a report on 25 February after viewing a video in which mail officers were seen to be performing various duties (Exhibit R4). Dr McGill confirmed that:
·The duties involving a mail officer doing insufficient address by book were within Ms Cheung’s capacity.
·Activities involving removal of mail from a tray of mail and leaving other articles for machine sorting were of a suitable type for Ms Cheung.
·Insufficient address by computer was an activity appropriate for Ms Cheung.
·Quality control at the MMF showed activities suitable for Ms Cheung.
·Sorting at the MMF showed activities suitable for Ms Cheung.
·Activity of loading mail into a feeder belt was an activity appropriate for Ms Cheung.
Dr McGill also commented on two activities involving the BCS which would not be suitable activities for Ms Cheung to undertake. There were activities which Ms Cheung did not undertake.
67. In a report dated 27 March 2007 (Exhibit A4), Dr Sun noted that he had diagnosed in August 1998 that Ms Cheung had a bilateral forearm occupational overuse syndrome with secondary trapezius myalgia. Dr Sun detailed later worsening of right arm pain in September 1999 and Ms Cheung’s default in her treatment and follow up program. Dr Sun stated that Ms Cheung presented in October 2000 with persistent upper limb pain, and an MRI scan taken in July 2000 which demonstrated a partial tear of the left shoulder muscle with impingement. A further review is documented on 16 May 2001, at which Ms Cheung complained of pain in the right shoulder, which was associated with sorting duties and other work related tasks. Dr Sun next reports seeing Ms Cheung on 7 February 2006 for work related worsening pain and numbness affecting the shoulders and involving the ulnar 3 fingers together with a purplish discoloration, stiffness and coldness with impaired sensation in the left hand and burning in the arm as well as swelling at the root of the neck.
68. Following three further reviews in February and March 2007, Dr Sun concluded that:
·The clinical picture is consistent with chronic bilateral cervicobrachialgia together with a C5/6 disc lesion, tendonitis, bursitis and impingement of the left shoulder and a complex regional pain syndrome of the right arm.
·It is a work related injury, made worse over the years with limited access to treatment and due to the nature and conditions of her employment.
·Her condition has stabilised.
69. Dr Sun confirmed his opinion in oral evidence. Dr Sun also noted that any reference made to a neurosurgeon and any statement of advice given by the neurosurgeon was a consequence of what he had been told by Ms Cheung. Dr Sun also confirmed his belief that the neck symptoms, with which Ms Cheung first presented in 2001, related to the ergonomics of her workstation. Dr Sun considered the C5/6 disc lesion something more sinister than a degenerative condition. Dr Sun confirmed that his diagnosis in relation to the right shoulder was rotator cuff strain. Dr Sun also acknowledged that Ms Cheung did not exhibit all the clinical features of a complex regional pain syndrome. Dr Sun also acknowledged that while he had had a description and seen some pictures of Ms Cheung’s work duties, he had never actually visited the worksite and relies both for symptomatology and description of workplace activities on what is told to him by Ms Cheung. Dr Sun also acknowledged that he had not detailed any work activities in his March 2007 report that caused Ms Cheung to work with her elbow above shoulder level, nor had he bothered to ascertain what elements of her work caused her difficulties, although he believed he understood the work environment.
70. In a report dated 2 April 2007 (Exhibit A5), Professor Sambrook, after reviewing the reports of Dr McGill of 25 August 2006 and Dr Henke of 25 October 2006 and an MRI scan of the cervical spine dated 22 September 2006, made the following observations:
·That Dr McGill accepts that there are degenerative changes in the rotator cuff, but noted that this is a common finding.
·That Dr McGill’s summary of repetitive work performed above shoulder height was consistent with his history indicating that there was not a lot of work activity above shoulder height.
·That Ms Cheung suffers from bilateral rotator cuff disease and cervical degenerative changes.
·That Ms Cheung demonstrates some pain consistent with a chronic pain syndrome.
·That a review of the history of repetitive use of her upper limbs at or above shoulder level is not evident.
·That neither her cervical spine problem nor her chronic pain syndrome relates directly to her work.
71. In a further report dated 17 May 2007 (Exhibit A6), Professor Sambrook, after reviewing Ms Cheung’s statement and Dr Sun’s report of 27 March 2007, observed that:
[The] new information suggest (sic) the nature of her work duties probably meant that she was doing significant repetitive work above shoulder height in her different work stations, which would be likely to aggravate her shoulder symptoms […]
72. In a report dated 28 April 2007 (Exhibit R2), Dr McGill, having reviewed the report of Dr Sun of 27 March 2007, was critical of the absence of detail as to the history and circumstances of the various incidents, and the nature of the symptoms and the findings at examination of Ms Cheung’s various consultations as recorded by Dr Sun. Dr McGill disagreed with his diagnosis, and did not believe that Ms Cheung’s work duties had any influence on the development of her cervical spondylosis. Dr McGill does agree that investigations of her rotator cuff have demonstrated some degenerative change. Dr McGill does not agree with Dr Sun’s diagnosis of complex regional pain syndrome in the absence of the necessary criteria.
73. In a further report dated 21 May 2007 (Exhibit R3), Dr McGill, after reviewing the MRI scan of the cervical spine performed on 21 September 2006, concluded that:
·The MRI confirms that she has cervical spondylosis.
·That there has been a change in the C5/6 disc between January and September 2006 with the development of a right sided protrusion.
·That it is unlikely that the change in her disc has played a substantial role with respect to her symptoms.
·That her work duties would not have influenced the development or progression of her cervical spondylosis nor the right C5/6 disc lesion.
·That her symptoms cannot be attributed to cervical nerve root compression.
74. Dr McGill and Professor Sambrook examined Ms Cheung together as far as the history and examination were concerned on 22 August 2007, with the aid of an interpreter. Dr McGill and Professor Sambrook provided independent reports. As a consequence Dr McGill summarised his findings in his report of 22 August 2007 (Exhibit R7):
This 43 year old lady has reported widespread symptoms involving her neck, upper limbs, head, low back and posterior thighs. Elbow symptoms were prominent previously and she today reported that she continues to have some elbow region discomfort but she no longer has prominent symptoms in either elbow region. As described above, she today reported very diffuse symptoms involving the head, neck and both upper limbs in a symmetrical fashion in addition to symptoms in other areas.
Her investigations have demonstrated degenerative change in the cervical spine and in her rotator cuffs. An MRI of the left shoulder in July 2000 was thought to demonstrate a minor partial intra-substance tear on the inferior aspect of the supraspinatus tendon and a tear through the insertion of the bicipital tendon at its insertion adjacent to the superior labrum. An ultrasound examination of both shoulders in 2006 however showed no evidence of a rotator cuff tear. In light of that information, I think it is apparent that any tear present previously was small.
There was no suggestion from the history she provided that her cervical spondylosis has been influenced by her work duties.
The work duties she has performed would have been very unlikely to have influenced any possible rotator cuff degenerative change that she might have. More importantly, the pattern of her symptoms and her examination findings on the occasions that I have seen her, including today, were not in keeping with rotator cuff disease nor any other physical abnormality of the shoulders.
Her diffuse symptoms are not due to a physical disorder.
Because she has degenerative change in the tendons in her rotator cuffs, I think it is appropriate that she remains on restricted duties in the long term with avoidance of at and above shoulder height activity and a lifting restriction of 12 kg.
In light of the duration of symptom reporting, I think it is likely that she will continue to report diffuse symptoms.
I do not believe that she has any work related condition.
75. In a report dated 29 August 2007 (Exhibit A8), Professor Sambrook summarised his opinion in the following terms:
Mrs Cheung gives a history of quite a number of musculoskeletal symptoms, mostly in her arms, shoulders, and neck. It is fair to say she is a poor historian and not good at describing her symptoms. Consequently it is difficult to clearly state what symptoms can be definitely related to her pathology, as demonstrated on imaging. For example she doesn’t clearly differentiate the neck and shoulder symptoms at times.
Given these limitations, it is likely the arm pain she described as starting in 1995, although atypical, was due in part to lateral epicondylitis. This has mostly resolved now. The neck pain she describes currently is probably best explained by her cervical degeneration. The shoulder pain she describes currently is most likely best explained by supraspinatus tendonitis with impingement. When asked, she did confirm that shoulder abduction was the activity that most provoked these symptoms, which is consistent with this opinion.
[…]
As noted in my report of 17th May 2007, the additional information about her work duties provided suggests the nature of her work duties meant that she was doing significant repetitive work above shoulder height in her different work stations, which would be likely to aggravate her shoulder symptoms, given the documented abnormalities in her rotator cuff on imaging.
In contrast, I do not consider her cervical spine degeneration can be related to her occupation.
Prognosis
Mrs Cheung has had persistent symptoms in her shoulders since 1999 and her neck since 2001. These symptoms are likely to continue to a variable extent depending on activity and I think she will need to remain on lighter duties with regular rotation with her hours restricted to her current 4 hours 25 minutes, 5 days per week.
76. In concurrent oral evidence Dr McGill and Professor Sambrook agreed on the following issues:
·Rotator cuff degeneration, plus tendonopathy, plus or minus some impingement.
·Cervical spondylosis, a common constitutional disorder.
·That there is no condition of a pathological description involving the upper limbs and neck.
·Ms Cheung does not meet the diagnostic criteria for complex regional pain syndrome.
·That the cervical spondylosis is of constitutional origin and is not work related.
·That the degenerative change in both rotator cuffs is constitutional.
·That if there is evidence which demonstrates that Ms Cheung was doing repetitive above shoulder height activity that is likely to lead to some degree of ongoing aggravation, temporary if it is intermittent work above shoulder height and permanent if on a long term continuous basis.
·That Ms Cheung was a poor historian, with both description of her diffuse symptomatology and the description of her work activities hard to follow. The provision of an interpreter did not seem to alter that situation.
·That she had difficulty in defining and expressing her symptoms.
·That if symptoms came on at work, when she was working within her listed restrictions, then she will not be doing herself any harm.
·That the physical signs of impingement were equivocal at examination.
·That Ms Cheung can work a normal shift, if her restrictions on activities in the workplace are adhered to (McGill). Only in the circumstances that the non-work-caused cervical spondylosis is excluded (Sambrook)
·That the duties shown on the video which include insufficient address by book, culling RTS mail, insufficient address by computer, and printing labels for MLOCR are activities appropriate for Ms Cheung to undertake.
77. I note the following issues, which remained either fully or in part a continuing source of disagreement between the two consultants:
·Degenerative change may have been aggravated by work (Sambrook). Not McGill).
·Dr McGill continued to find evidence of aberrant cooperation, although improved during his sequence of examinations, with Professor Sambrook noting that cooperative endeavour was initially present but fell away on test repetition.
·The pattern of symptoms is not consistent with what one would see if impingement due to rotator cuff changes were the cause of the symptoms (McGill).
·The symptom diversity could be explained by the fact that there is both neck and shoulders pathology giving rise to the symptom complex with Ms Cheung having difficulty in differentiating between the two (Sambrook).
·That ultrasound evidence may point to the presence of impingement (Sambrook), while an asymptomatic rotator cuff tear found at ultrasound examination may refute such an assertion (McGill).
·That the days off work are not work related (McGill). That the days off work are probably work related (Sambrook).
·That the shoulder conditions have never been work related and that her work has not aggravated the degenerative constitutional changes in the rotator cuffs (McGill). Degenerative change in the rotator cuffs is increasingly found with the aging population, making a constitutional explanation less likely at age 35 (Sambrook).
·That quality control and sorting on the MMF machine may involve Ms Cheung in raising her elbow to the horizontal (90 degree - quality control) or above the horizontal (90 degree - sorting), while when stooping to undertake quality control the arm abducts to 110 degree (Sambrook). All seven nominated activities in the video are appropriate.
consideration
78. I note again that the matter N2006/456 was withdrawn. This matter was concerned with the reviewable decision of 20 April 2006 which denied Ms Cheung’s claim for permanent impairment of upper limbs/shoulders conditions lodged on 23 February 2006.
79. I have been particular in considering the matters before me to detail the chronology of events as described by Ms Cheung in her evidence and as outlined in the documentation. I have done this for a very simple reason – namely I had much difficulty with Ms Cheung’s presentation of her evidence. I understand that it was her desire to present her case in the way she did and for what reasons she may have had. I noted that her manner of presentation betrayed some underlying anxiousness. Nevertheless by the completion of her evidence, I had major concerns as to the detail of a particular event/circumstance, the accuracy of any detail so given and the relevance of many answers given. In relation to the latter, I found that often Ms Cheung gave answers which were either non responsive and/or argumentative, answered questions with a question, gave answers which were evasive, confusing, inaccurate or that appeared self-serving.
80. In reviewing the written documentation there is cumulative evidence that many clinicians considered Ms Cheung to be a poor historian, particularly when it came to describing detail of clinical symptomatology and/or detail of her activities in the workplace at a point of time in reference to her clinical complaints. I note that Professor Sambrook and Dr McGill considered that there was little difference in Ms Cheung’s ability as a historian with or without an interpreter.
81. Further I note in reviewing the clinical documentation, that there is a stream of clinical opinion that there is both an organic and non organic component in the clinical assessment of Ms Cheung. The basis of such a stream of clinical opinion varies from “non cooperation at physical examination” (Dr McGill); “overreaction at examination and a significant non organic component” (Dr Evans, 25 February 2001); “a widespread pattern of pain involving neck, shoulders, arms and forearms which are not typical of major rheumatic disease and would suggest extra behavioural psychosomatic factors may operate” (Dr Potter, 7 August 2000); “difficult to assess because there is a large non organic component to the condition” (Dr Maxwell, 22 June 2001); “generally cooperative during examination… personality and other social and psychological factors may play a prominent role in the development and perpetuation of her symptoms” (Dr Henke, 25 October 2006); “poor historian with her cooperative endeavour while initially present, fell away on test repetition” (Professor Sambrook, concurrent evidence).
82. In the light of my earlier notations, I find that Ms Cheung is both a poor historian and less than reliable witness. In relation to the former attribute (poor historian) the material outlined by her as to both her diffuse clinical symptomatology and the description of her work activities at a particular point of time were hard to follow as it appeared that she was unable to define and express such issues with any degree of clarity. In relation to her unreliability as a witness there is a considerable body of evidence, namely her approach to answering questions as a witness, to her cooperation in clinical examination and a body of clinical opinion suggesting a significant non organic component for the symptom complex described, which when assessed objectively is a matter for much concern. In so finding as I have, it would be appropriate to indicate that I believe that there is both a voluntary and non voluntary element in the displayed behaviour, for at times Ms Cheung verbally changed particular elements of her written statement. Nevertheless I do conclude, no matter what the cause, that Ms Cheung is a less than reliable witness, and that as a consequence of being both a poor historian and a less than reliable relator of factual situations any opinion rendered by a clinician must be considered in such a context.
83. In addressing the medical evidence in general, I would observe that Ms Cheung has been the subject of some investigation and much assessment and evaluation and apart from medication for pain, acupuncture and some physiotherapy relatively little in the way of treatment. I note that Ms Cheung was referred by Dr Lee to Dr Sun in 1999 and that in his evidence Dr Sun stated that he had seen her on some 20 or 30 occasions between 1999 and 2001 and 2006 and 2007 with a period in between when she did not attend.
84. While I note that Dr Sun detailed a lack of compliance with treatment by Ms Cheung in his report of 23 January 2001, the more important issue in Dr Sun’s clinical opinion is his reliance on what Ms Cheung tells him as to symptomatology and work activities, with no adequate documentation of the latter. Dr Sun stated that he has little personal knowledge of the Australia Post workplace and the duties expected of Ms Cheung. It is not surprising therefore that where Dr Sun expresses an opinion based on Ms Cheung’s report of events (e.g. aggravation of shoulder pain due to work activities) that without an analysis of what activities were involved, the reporting of such is of little forensic merit. Further I note that in oral evidence Dr Sun acknowledged that he had not detailed any work activities in his March 2007 report that caused Ms Cheung to work with her elbow above shoulder level, nor had he bothered to ascertain what elements of her work were causing Ms Cheung difficulty when finalising his report of 27 March 2007. In such circumstances I conclude that any clinical opinion finalised in such circumstances is particularly vulnerable and not of great evidentiary weight.
85. While, as earlier indicated, many clinical opinions have been rendered in this matter and some diagnoses on the various clinical conditions have been made, I turn to focus on the diagnosis of the symptom complexes complained of by Ms Cheung. In relation to Ms Cheung’s neck complaints, I note the investigations undertaken over time and the pathology observed in the cervical spine. I conclude that the diagnosis for Ms Cheung’s cervical spine condition is cervical spondylosis, and in so doing rely upon the opinions of Professor Sambrook and Dr McGill. I further note that both specialists consider that such a condition is a consequence of a constitutional degenerative process.
86. In relation to the shoulders both Professor Sambrook and Dr McGill are of the opinion that Ms Cheung has bilateral rotator cuff disease, which is essentially a constitutional degenerative process. Both doctors also agree that Ms Cheung experiences tendonopathy in both shoulders, while there is not agreement on the issue of impingement. Aside from the issue of impingement and in noting the opinion of Dr Gliksman of 26 June 2001 (bilateral rotator cuff pathology possibly of an acute degenerative nature) I so find.
87. The issue of a chronic pain syndrome is in evidence. While Dr Sun considers that Ms Cheung suffers from chronic cervico brachialgia (as does Dr Champion) and a complex pain syndrome of the right arm, the opinions of both Professor Sambrook and Dr McGill are particular in refuting that Ms Cheung suffers from a complex regional pain syndrome (however named) as the clinical criteria for such a diagnosis are not present. Further I am aware of the following clinical opinions that Ms Cheung suffers from a non specific pain syndrome (Dr Henke), a widespread pattern of pain (Dr Potter). In the circumstances I have addressed, I conclude that Ms Cheung suffers from a self reported non specific pain syndrome and in so doing rely upon the opinions of Professor Sambrook and Drs McGill, Potter, Henke and Mellick.
relationship to employment
88. It is the evidence of both Dr McGill and Professor Sambrook that the cervical spondylosis is a constitutional degenerative disease process and that the disease has not arisen out of or in the course of employment, nor has employment made a material contribution to the disease. I so find and in doing so rely upon the stated opinions of Professor Sambrook and Dr McGill. While I note Dr Sun’s opinion given in oral evidence that Ms Cheung’s neck symptoms, which she presented with in 2001, were related to the ergonomics of her workstation and that the C5/6 disc lesion was something more sinister than a degenerative condition, I do not place great weight on the opinion in the absence of details of the work and the workstation and reasons as to why the disc lesion was something more sinister.
89. Similarly in relation to the rotator cuff disease both Professor Sambrook and Dr McGill conclude that the degenerative changes in the rotator cuffs are of constitutional origin. I accept their opinion and I find that the bilateral rotator cuff disease has neither arisen out of or in the course of her employment, nor was it being materially contributed to by her employment.
90. In addressing the issue of self reported non specific pain syndrome, I am aware that both Professor Sambrook and Dr McGill were of a view that the criteria were not present which would permit a diagnosis of complex regional pain disorder. Both clinicians were of a view that her self reported chronic pain syndrome was not related to her work (Professor Sambrook, 2 April 2007; Dr McGill 22 August 2007). I further note the opinions of Dr Mellick (14 January 2000), Dr Potter (7 August 2000), Dr Evans (25 February 2001), Dr Maxwell (27 June 2001) and Dr Henke (25 October 2006), all of whom in their opinions refer in various ways to diverse and diffuse symptomatology, a presentation atypical of any pathology, a significant or large non organic component to the symptomatology and no convincing evidence of major pathology in either shoulder joints, with her symptoms unlikely to have arisen as a result of her employment (Dr Henke). I have already detailed the reasons as to why I reject the opinions of Drs Sun and Champion (absence of the necessary criteria for a diagnosis of regional pain syndrome). It is for these reasons that I find that Ms Cheung’s self reported symptoms of chronic pain have not arisen out of or in the course of her employment nor has her employment made a material contribution to this condition.
issue of aggravation
91. I have already concluded that Ms Cheung suffers from a non work related cervical spondylosys. The next issue is whether or not there has been an aggravation of this condition arising out of or in the course of her employment or whether there has been a material contribution to the aggravation of the disease process by her employment. It is evident that there has been a change in the C5/6 disc lesion between the CT scan in early 2006 and the MRI scan in the second half of 2006. Dr Sun views this change as sinister, while considering that repetitive normal movements of the neck could cause both the condition and any aggravation of such a condition. Dr Sun did not support his opinion with further clinical reasoning and/or supportive clinical opinion.
92. Dr McGill and Professor Sambrook, while noting the change, concluded that such a change was not related to Ms Cheung’s work. Further they disputed Dr Sun’s analysis by stating that there is no reported clinical evidence to suggest repetitive movements of the neck would cause and/or aggravate the condition of cervical spondylosis.
93. In each circumstance, I conclude, and in so doing prefer the opinions of Professor Sambrook and Dr McGill for the reasons they nominate, that the changes noted in the C5/6 disc lesion result from the degenerative constitutional process and have not arisen out of or in the course of her employment, nor has Ms Cheung’s employment made a material contribution to any aggravation of the cervical spondylotic process.
94. In addressing the issue of the bilateral shoulder pathology, namely the bilateral rotator cuff degenerative disease, I am very much mindful of the difficulties inherent in considering whether there has been an aggravation of the degenerative rotator cuff disease. Such a difficulty arises from the difficulties and concerns about the reliability of Ms Cheung’s evidence. I have made my findings on this issue clear earlier in this decision. I do not intend to repeat such, but I do observe that the diffuseness and non specific nature of her pain symptomatology alone cause much difficulty, when considering the issue of rotator cuff pathology and any aggravation thereof. Nevertheless I do note that there is ample evidence before me that when Ms Cheung experiences difficulty with any work related activity, that she voices her difficulties, with the employer responding with workplace assessments and provision of a new menu of workplace activities to be undertaken by Ms Cheung as a response to her complaints.
95. I note the clinical history of the shoulder condition commences with Ms Cheung complaining of pain in both shoulders in mid 1999 after assessment of complaints of pain in hands, forearms, epicondyles of both upper limbs had been undertaken with cessation of compensation payments for bilateral epicondylitis from 8 July 1999. Ms Cheung filed an incident report on 9 July 1999 in which she complained of pain in both elbows and both shoulders. Ms Cheung lodged a compensation claim on 25 August 1999 and in oral evidence stated that her condition had continued to worsen and that the worsened situation was continuing to this time. I note that ultrasound examination of the left shoulder dated 11 November 1999 is reported as demonstrating an intact rotator cuff (Dr Mellick). While the same examination on 14 June 2000 demonstrated some swelling of the supraspinitis tendon, with the appearance of impingement on abduction of the left arm (Dr Maxwell’s report). On 10 May 2000 Dr Lee had reported soft tissue strains (multiple), and by 6 July 2000 Dr Lee was sufficiently concerned to order an MRI scan of the left shoulder. This scan was performed on 20 July 2000 and demonstrated a partial tear in the supraspinitis, tendonopathy and impingement, in relation to the rotator cuff of the left shoulder. Despite such findings Australia Post did not admit liability until March 2001 for supraspinitis tendonitis tear of the left elbow, but not in respect of right shoulder and neck. This decision was amended by the Administrative Appeals Tribunal in June 2001 which in effect continued and added to Australia Post’s liability to pay compensation for lateral epicondylitis of the right elbow, and for a chronic pain syndrome in both upper limbs and neck.
96. Between 2002 and September 2005 Ms Cheung was employed at the Sydney East Facility Centre doing activities which she stated she was able to do, because she controlled the rate at which they could be done. It is from the time of transfer to Sydney West Mail Facility Centre in September 2005 and introduction of a new range of work activities, that Ms Cheung’s complaints of pain in both shoulders and neck have resurfaced. I note that an ultrasound of the left shoulder on 17 January 2006 demonstrated supraspinitis tendonitis with impingement on abduction and slight overlaying bursal thickening. An ultrasound of the right shoulder on 7 February 2006 showed similar results.
97. In the analysis to this point I consider that we are presented with a history of diffuse and variable pains in both upper limbs, including shoulders, with pathology demonstrated indicative of bilateral rotator cuff disease of a degenerative nature. It is the common opinion of both Professor Sambrook and Dr McGill, that such a condition can be aggravated by repetitive elevation of the elbow above shoulder height and by lifting repetitively heavy weights. The difficulties in furthering the analysis have already been alluded to in detail and include the unreliability of Ms Cheung’s evidence, the diverseness of her symptomatology, the description of duties actually performed in the context of accurate symptomatology, a significant non organic element to her presentation and an assessed lack of cooperation at examination noted by a number of clinicians, as well as clear indications that Ms Cheung does not hesitate to inform her employer of any difficulties she may be experiencing with tasks allocated to her.
98. I have observed the video in evidence and I note the opinions of both Professor Sambrook and Dr McGill as regards the activities undertaken and the suitability of tasks for Ms Cheung to undertake. I am mindful that Professor Sambrook considers two of the activities may involve elevation of the elbows above shoulder height. I am aware that Dr McGill has a contrary view and I am also aware that both Ms Cheung and the employer are aware of her workplace restrictions.
99. In considering the circumstances outlined in the two previous paragraphs I conclude that I have great difficulty in correlating the nature of Ms Cheung’s diffuse symptomatology with her activities in the workplace - more particularly in relation to her activities in the workplace after the onset of shoulder symptomatology and the clinical acceptance in July 2000 that there was demonstrable pathology in the left rotator cuff. I note there was a period of some nine months between such evidence and admission of liability. During that period I have no evidence of deterioration of the left shoulder condition in terms of what was established by the MRI scan of July 2000. Further I conclude that I have no evidence of aggravation of the rotator cuff disease at this time, other than for the continuing complaint of diffuse pain and non specific imaging findings in early 2006, which details evidence of continuing rotator cuff degenerative disease. While I acknowledge that pain levels may well increase as a result of activity involving elevation of an elbow above shoulder height, such aggravation is but temporary. In the situation of this matter I am not satisfied that Ms Cheung has undertaken work related duties involving repetitive elevation of either elbow above shoulder height, that have led to an aggravation of the underlying degenerative rotator cuff disease.
100. In summary I conclude that on the balance of probabilities an aggravation, either arising out of or in the course of employment or the employment making a material contribution, of Ms Cheung’s bilateral rotator cuff degenerative disease has not occurred. In so finding I note and rely on the opinions of Dr McGill, Dr Henke, Dr Maxwell and for the most part Professor Sambrook (his consideration about the workplace activities distinguished by virtue of his finding that Ms Cheung was a poor historian). I have earlier detailed my concerns regarding Dr Sun’s opinion.
101. In addressing the issue of self reported chronic pain, I have already concluded that such a condition does not arise out or in the course of Ms Cheung’s work duties, nor has her employment made a material contribution to such. As there is no evidence before me that such a condition has been aggravated by her employment that is where the matter rests.
decisions under reviews
102. As a consequence of my findings, namely:
(a)that cervical spondylosis or an aggravation of that condition are not work related; and
(b)that bilateral rotator cuff disease is not work related; and
(c) that a self reported chronic pain condition is not work related; and
(d)that there has not been a work related aggravation of either the bilateral rotator cuff disease or the self reported chronic pain condition;
I determine that the following decisions are affirmed: N2006/452, N2006/455, 2007/0824, 2007/1106, 2007/4828, 2007/5047, 2008/182, 2008/183.
I certify that the 102 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.
Signed: ...........[sgd]..............................................................
AssociateDates of Hearing 29-30 May 2007; 6-7 February 2008
Date of Decision 9 May 2008
Counsel for the Applicant Mr M Perry
Solicitors for the Applicant Ms S Lepage, Slater and Gordon
Counsel for the Respondent Mr G Johnson
Solicitors for the Respondent Mr L Forner, Forners
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