Ching and Australian Postal Corporation
[2004] AATA 842
•12 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 842
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/1112
) N2002/1113
) N2003/1602
) N2003/1603
GENERAL ADMINISTRATIVE DIVISION ) Re XIAO MEI CHING Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date12 August 2004
PlaceSydney
Decision 1. The reviewable decisions in applications N2002/1113 and N2003/1603 are set aside. Australia Post is liable to pay compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in relation to Ms Ching’s bilateral shoulder and left upper limb injuries on or about 31 August 2001. That liability did not cease on 29 May 2002.
2. The reviewable decision in application N2002/1112 is set aside. Australia Post is liable to pay compensation in accordance with the Act in relation to Ms Ching’s left forearm, wrist and hand injury on or about 15 February 2002.
3. The reviewable decision in application N2003/1602 is varied to the extent that Ms Ching’s compensable conditions are not yet permanent and assessment of the degree of permanent impairment would be premature. It follows that she is not entitled to compensation for permanent impairment at this time.
4. The matter is remitted to Australia Post to calculate Ms Ching’s entitlements to payment of compensation in accordance with these reasons.
5. Australia Post is to pay Ms Ching’s costs in these proceedings as agreed or taxed.
[Sgd] Mr S. Webb, Member
CATCHWORDS
COMPENSATION – liability – multiple claims for shoulder, arm and hand conditions - injury – liability accepted for medical treatment expenses in relation to bilateral shoulder condition – decision to cease liability – ongoing liability – upper left limb condition work caused – decision set aside
COMPENSATION – permanent impairment – bilateral shoulder and left upper limb impairment – impairments not yet permanent – decision varied
Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 24, 67
Lees v Comcare (1999) 56 ALD 84
Re Liu and Comcare [2004] AATA 617
Rosillo v Telstra Corporation Limited [2003] FCA 1628
Australian Postal Corporation v Oudyn (2003) 73 ALD 659
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
REASONS FOR DECISION
12 August 2004 Mr S. Webb, Member 6. By these applications Ms Ching is seeking review of four reviewable decisions made by the Australian Postal Corporation (“Australia Post”) to deny or purportedly cease liability to pay compensation for alleged shoulder and arm conditions that she asserts are work caused and compensable.
7. The matter came on for hearing on 13 and 14 May 2004 but was not completed. Ms Ching was represented by Mr D. Baran, counsel. Australia Post was represented by Miss R. Henderson, counsel. Ms Ching gave oral evidence at the hearing, as did Dr I. Gotis-Graham, Dr N. McGill, Dr R. Whittaker and Dr D. Bray. The Tribunal was assisted by an interpreter in the Cantonese language. Exhibits were tendered and labelled at the hearing.
8. Written submissions were tendered by both parties after the hearing. A final hearing day listed on 2 July 2004 was vacated by agreement.
factual context
9. Ms Ching was born on 30 May 1961 and commenced employment with Australia Post on 21 November 1988 performing the duties of a Mail Officer. In the period from 1988 until 1999 those duties involved, inter alia, sorting and indexing mail on devices provided by Australia Post for those purposes at that time.
10. Much of the lay evidence went to the nature of specific duties and actions performed by Ms Ching in employment at relevant times and to other workplace factors. I have carefully considered that evidence, which is not necessary to repeat in detail here.
11. In or about November 1999 the Spectrum 10 postal sorting machine was introduced and Ms Ching was allocated to the “S10 team, large letter family”. Ms Ching then worked in the 5am Spectrum 10 Team A in Australia Post’s South West Letter Facility. Ms L. Bartholomeusz was the responsible supervisor for that Team from April 2000 and relevant periods thereafter.
12. On 31 August 2001 Ms Ching completed an incident report in which she recorded experiencing “muscular pain, left arm sore” at 10.45am while working at a coding position on a Spectrum 10 postal sorting machine. Ms Ching was placed on restricted duties for one month.
13. On 1 September 2001 Ms Ching attended Dr Lau, general practitioner, who diagnosed upper limb myalgia.
14. On 10 September 2001 a workplace assessment was conducted and Ms Ching was placed on restricted duties with no coding work during September 2001.
15. On 9 October 2001 Ms Ching lodged a claim for compensation in relation to symptoms of pain and soreness in her left arm.
16. On 11 October 2001 Ms Ching attended Dr I. Barker-Whittle, general practitioner for Australia Post, who diagnosed “O. O. S. left arm” and certified that Ms Ching was fit for full time work with restrictions for one month. On 19 October 2001 Dr Barker-Whittle diagnosed “O. O. S. left upper arm” and certified that Ms Ching was fit for full time work with restrictions, including “Only to use current coding machine for 30 minutes every hour. NO CODING RATE TO APPLY. General duties for other 30 minutes. Wt. restriction to 8kg.”
17. On 23 October 2001 Australia Post determined to deny Ms Ching’s claim for compensation, stating “There is nothing to explain why your normal duties would cause the pain in the left arm when they apparently had not done so before given the length of your employment.”
18. On 27 October 2001 Dr V. Chan, treating general practitioner, diagnosed “L upper limb girdle and arm myalgia” and certified medical restrictions that were applicable to Ms Ching, including “No keyboard work/coding”. Dr Chan reported that Ms Ching had been his patient since 1993 and had no previous complaint of arm or shoulder pains. He reported that “[Ms Ching] began to have pains after started using the new machine at work. She has to raise constantly her arm and occasionally raise the heavy door by her stretched arm. These have caused excessive muscle use of her shoulder girdle and arm muscles which in turn caused her symptoms.”
19. On 30 October 2001 Dr S. Johnson, radiologist, reported that a left shoulder ultrasound revealed “minor bursitis in the region of the subscapuloris tendon and there is slight thickening of the bursa”.
20. On 7 November 2001 Dr I. Gotis-Graham, rheumatologist and consultant physician, reported that Ms Ching was suffering from work-related “bicipital tendonitis (bilateral) & left subacromial bursitis”.
21. On 24 November 2001 Dr Chan diagnosed “bilateral bicipital tendonitis, L subacromial bursitis, subscapularis bursitis” and certified applicable medical restrictions for work.
22. On 30 November 2001 Australia Post issued a reviewable decision affirming the prior determination on 23 October 2001 to deny liability for Ms Ching’s compensation claim. Subsequently, on 7 December 2001 Australia Post, on further reconsideration, decided to vary the determination dated 23 October 2001. By that decision Australia Post accepted liability to pay the cost of reasonable medical treatment and denied liability for incapacity.
23. On 7 December 2001 Dr G. Hazan, radiologist, reported a normal right shoulder X-ray and reported “no rotator cuff tear by ultrasound assessment”.
24. On 15 February 2002 Dr R. Chase, occupational physician, diagnosed “left shoulder impingement syndrome probably secondary to a subacromial bursitis. It is conceivable/probable that she has a small supraspinatus tear or tendonitis…it is probable that she did have a right shoulder impingement syndrome… and signs of this appear to have largely, if not completely, resolved.”
25. On 18 February 2002 Ms Ching lodged an incident report in which she reported “left arm sore and pain on 15/2/2002, left hand sore on Monday all day (18/2/2002)” after undertaking “extra work from Wed (13/2/2002) twice a day”.
26. On 4 March 2002 Ms Ching lodged a claim for compensation in relation to “Left wrist and hand nerve system”. That claim was denied by Australia Post on 17 May 2002. A reviewable decision affirming the determination denying liability in relation to Ms Ching’s left wrist claim was issued on 5 June 2002. That reviewable decision is the subject of Ms Ching’s application to this Tribunal (N2002/1112).
27. On 29 May 2002 Australia Post determined that “on and from 29th May 2002, [Ms Ching] was no longer be [sic] entitled to the payment of compensation in respect of her shoulder condition”. By a reviewable decision dated 24 July 2002 Australia Post affirmed the determination to cease liability for Ms Ching’s bilateral shoulder condition, stating “Australia Post is no longer liable to pay compensation under section 14 of the Act in respect of your condition”. That reviewable decision is the subject of Ms Ching’s application to this Tribunal (N2002/1113).
28. On 23 July 2002 Ms Ching lodged a claim for compensation in relation to her “left arm” that allegedly occurred or was first noticed and treated on 15 February 2002, stating:
“I cull out small letters & parcels & facing up the small letters at same tim [sic] I have to hold the large letter tray which moving on conveyor belt for taking those mail out. I use my left hand to hold the tray my left [sic - arm] & hand feel pain & sore.”
Ms Ching’s claim was rejected on the basis that “Your new claim appears to be identical to the claim which you lodged in March this year… and which was subsequently rejected”.
29. On 20 December 2002 Ms Ching lodged a claim for compensation in relation to “right shoulder & arm pain & sore”, wherein she asserted “injury first from left arm/shoulders 31/8/2001 and gradually to right…”. That claim was rejected on 7 January 2003 on the basis that “A decision issued on 24/7/02…denies liability in relation to injuries to both shoulders… I am of the view that your claim for right shoulder/arm pain has already been addressed, and that your latest “claim” is no more than a duplication of earlier claims.”
30. On 4 April 2003 Ms Ching lodged a compensation claim form for permanent impairment of the “left upper limb; right upper limb”. On 10 April 2003 Australia Post determined that “Mrs Ching is not entitled to the payment of compensation under sections 24 and 27 of the Act”. That determination was reconsidered and affirmed in a reviewable decision dated 1 July 2003. Ms Ching is pursuing her review rights in relation to that decision by application to this Tribunal (N2003/1602).
31. On 4 July 2003 Ms Ching lodged a compensation claim relating to “left & right shoulders, left & right arms, left & right elbows, left & right wrists and hands”, stating “I felt pain and sore in my injury parts when I working” and recording the dates of the alleged injury to be 31 August 2001 and 15 February 2002. Ms Ching’s claim was rejected by determination dated 9 July 2003:
“I determine that Australia Post is not liable to pay compensation to you for any injury to left or right shoulder or left or right upper limb. This denial of liability embraces all of the benefits provisions of the Safety, Rehabilitation and Compensation Act, including the provisions of sections 14, 16, 19 and 24.”
32. On 8 August 2003 that determination was affirmed in a reviewable decision which stated:
“… I am not satisfied there is sufficient objective evidence to establish that your alleged right and left shoulder and upper limb conditions, which you claim to be suffering from, arose as a result of the repetitive nature of your work duties with Australia Post. Additionally, your claim appears to be a duplicate of claims already before the AAT.”
That reviewable decision is the subject of Ms Ching’s application to this Tribunal (N2003/1603).
33. There are numerous medical certificates and reports in the material that is before this Tribunal that address Ms Ching’s claimed conditions in the period following 18 February 2002. It is not necessary to review all that medical evidence here as it will be dealt with in due course below.
legal principles
34. Ms Ching’s applications arise for consideration under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). In order to be entitled to compensation under the Act Ms Ching must have suffered an injury as defined at s.4 of the Act, that is, relevantly, a physical or mental injury, or an aggravation of such an injury, arising out of or in the course of her employment by Australia Post or a disease or aggravation of a disease (s.4 and s.7) that has been materially contributed to by that employment.
35. Under the Act liability to pay compensation arises if an injury results in death, incapacity for work or impairment (s.14) or requires medical treatment (s.16). Compensation that is payable is to be calculated under the relevant head of compensation in the Act. Compensation that is payable in relation to a permanent impairment is to be calculated under s.24 and any related non-economic loss is to be calculated under s.27 of the Act.
36. For compensation to be payable in respect of a permanent impairment the claimant must have a whole person impairment of at least 10 percent in accordance with the approved Guide to the Assessment of the Degree of Permanent Impairment (“the Approved Guide”) (s.24).
37. With regard to a determination under s.14 concerning the liability of a Commonwealth authority in relation to an injury under the Act the Full Federal Court said in Lees v Comcare (1999) 56 ALD 84 at paragraphs 34 and 35:
“34 …A determination under s 14 cannot amount to more than a determination that Comcare "is liable to pay compensation in accordance with this Act" in respect of a particular injury. The amount of compensation which Comcare will be liable to pay, the person or persons to whom the compensation will be payable and the time or times at which Comcare's liability will give rise to a present obligation to make payments are, as the above examination of the structure of the Act reveals, all matters to be determined under other provisions of the Act.
35 This is not to say that a determination under s 14 is without real significance. Such a determination will involve findings on the following matters. First, that an appropriate notice of injury has been given to the relevant authority as required by s 53 of the Act; secondly, that a claim for compensation has been made as required by s 54 of the Act; thirdly, that the person who made the claim or on whose behalf the claim was made was an "employee" at the time of the alleged injury (ss 4 and 5); fourthly, that the employee suffered an injury (s 4); and finally, that the injury has resulted in death, incapacity for work or impairment.”
38. Once liability in relation to an injury has been properly accepted by determination under s.14 of the Act, it cannot be extinguished by subsequent determination in the event that compensation is not payable under another section of the Act at that time. In effect, while liability to pay compensation under a particular head or heads of compensation under the Act may be exhausted from time to time, the underlying liability raised under s.14 persists in relation to a compensable injury. The Tribunal observed in the case of Re Liu and Comcare [2004] AATA 617 at paragraphs 2 and 3:
“2 …A positive determination under s 14 is a determination of the existence of a compensable injury. The nature and amount of the compensation is to be determined under other provisions of the Act. Compensable injuries may not always result in the payment of compensation. They may give rise to intermittent entitlements to compensation. There may be periods when there is no present entitlement to compensation under any of the sections of the Act relating to the nature and amount of compensation. But during such periods an injury which has been determined to be a compensable injury under s 14 will not cease to be a compensable injury. It will simply be correct to say during some periods that at the present the compensable injury does not give rise to an entitlement to compensation. Such periods may be long. The compensable injury may never give rise to any future entitlement to compensation. But this can not be known or determined in advance. No determination, whether by consent of the parties or not, can preclude the making of a future application for compensation with respect to a compensable injury determined to exist under s 14. This was made clear in Plumb v Comcare (1992) 39 FCR 236 at 240.
3. The only time that liability under s 14 can be reconsidered is under s 62. But that is a reconsideration of whether the original determination was correct on its merits and cannot address any issue of cessation of correctly determined liability. A changed determination upon such a reconsideration is a determination that there never was a compensable injury (see Australian Postal Corporation v Oudyn (2003) 73 ALD 659 at 666-667).”
39. It follows that liability under s.14 of the Act in relation to a compensable injury does not cease even though applicable criteria for the payment of specific compensation may be satisfied at a specific point in time (see Rosillo v Telstra Corporation Limited [2003] FCA 1628). Liability may remain dormant in such circumstances and will continue in that state until it is enlivened again by a subsequent application for compensation in relation to the compensable injury.
issues
40. The issues in this matter are:
(a)Did Ms Ching suffer a compensable injury in the course of her employment by Australia Post on or about 31 August 2001 or on or about 15 February 2002?
(b)Did Australia Post’s accepted liability for Ms Ching’s bilateral shoulder injury cease on 29 May 2002?
(c)Is Ms Ching entitled to payment of compensation for permanent impairment in relation to her claimed injuries?
summary findings
41. At all relevant times Ms Ching was an employee for the purposes of the Act.
42. Ms Ching suffered a compensable injury in the course of her employment by Australia Post on or about 31 August 2001. The repetitive duties, actions and postures Ms Ching performed in the course of her duties operating the Spectrum 10 coding machine caused her to suffer symptoms of pain and soreness in her left arm on or about 31 August 2001. Subsequently she suffered symptoms of pain and soreness in both shoulders and both arms, predominantly on the left side. On or about 15 February 2002 Ms Ching suffered additional pain symptomatology in her left forearm, wrist and hand.
43. Medical minds differ on the precise diagnosis of the medical condition or pathology that was the cause of Ms Ching’s pain symptomatology. The precise mechanisms or processes that caused her bilateral shoulder, left upper limb and left hand symptoms are not above doubt. Nonetheless, applying the civil standard of proof, I am satisfied that it is more likely than not that Ms Ching suffered from bicipital tendonitis and subacromial bursitis, and a secondary bilateral shoulder impingement syndrome. These bilateral shoulder and left upper limb conditions are compensable injuries.
44. I am not able to make a satisfactory finding about the diagnosis or pathology of Ms Ching’s left forearm, wrist and hand pains on or about 15 February 2002. Nonetheless, I am satisfied to the requisite degree that those pains were either the product of frank injury, being related to over use in the period prior to 15 February 2002, or were the result of an aggravation of Ms Ching’s bilateral shoulder and left upper limb condition at that time. It follows that Ms Ching’s left forearm, wrist and hand pain is an injury that is compensable under the Act.
45. On 7 December 2001 Australia Post accepted liability under s.16 of the Act to pay Ms Ching compensation for medical treatment expenses in relation to “the condition from which you suffer” and subsequently determined to cease that liability under s.14 of the Act “on and from 29 May 2002”. That liability, however, is ongoing.
46. I am satisfied that Ms Ching’s bilateral shoulder and upper left limb condition cannot properly be determined to be permanent at this time. Assessment of the degree of permanent impairment arising from her compensable injury is premature. Her compensable injury may stabilise with further treatment, appropriate rehabilitation and the strict application of medical restrictions to her work duties.
decision
47. The reviewable decisions in applications N2002/1113 and N2003/1603 are set aside. Australia Post is liable to pay compensation in accordance with the Act in relation to Ms Ching’s bilateral shoulder and left upper limb injury on or about 31 August 2001. That liability is ongoing.
48. The reviewable decision in application N2002/1112 is set aside. Australia Post is liable to pay compensation in accordance with the Act in relation to Ms Ching’s left forearm, wrist and hand injury on or about 15 February 2002.
49. The reviewable decision in application N2003/1602 is varied to the extent that Ms Ching’s compensable conditions are not yet permanent and assessment of the degree of permanent impairment would be premature. It follows that she is not entitled to compensation for permanent impairment at this time.
reasons for the decision
50. Making these decisions I have carefully considered all of the evidence before me, the submissions of the parties, the relevant case law and legislation.
credit
51. I accept Ms Ching as a witness of truth who gave her evidence openly and without guile, despite some minor language difficulties.
injury - shoulders
52. Ms Ching was injured in the course of her employment by Australia Post and Australia Post is liable to pay compensation under the Act in relation to that injury.
53. In Australia Post’s submission “the respondent correctly accepted liability for aggravation of shoulder impingement, and…this condition resolved before liability ceased. No causal connection has been demonstrated between the applicant’s restricted duties and any of the other upper limb conditions for which compensation as [sic] been claimed.” At issue are the diagnoses of the claimed conditions and the causation of those conditions.
54. On 7 December 2001 Australia Post accepted liability for a condition of uncertain diagnosis in relation to Ms Ching’s shoulders and left arm on the basis that her “employment represents the most likely cause”. It is relevant to consider the diagnostic history of her symptoms following the incident on 31 August 2001. Dr B. Lau, general practitioner, diagnosed “left more than right upper limb myalgia” on 1 September 2001. On 11 and 19 October 2001 Dr J. Barker-Whittle, general practitioner, diagnosed “O.O.S. left upper arm”, which I interpret to mean occupational overuse syndrome. Dr V Chan, Ms Ching’s treating general practitioner since 1993, diagnosed “L upper limb girdle and arm myalgia” on 27 October 2001. Dr Chan reported that Ms Ching had no prior complaint of arm or shoulder pains. On 30 October 2001 Dr S. Johnson, radiologist, reported “minor bursitis in the region of the subscapularis tendon and … slight thickening of the bursa” in the left shoulder. Dr Gotis-Graham, rheumatologist and consultant physician, diagnosed “bicipital tendonitis (bilateral) & left subacromial bursitis” on 7 November 2001. On 24 November 2001 Dr Chan diagnosed “bilateral bicipital tendonitis, L. subacromial bursitis, subscapularis bursitis”.
55. Clearly, on that evidence, there are difficulties diagnosing the precise condition from which Ms Ching suffered at that time, which is broadly described as an overuse syndrome or myalgia. Nonetheless, I am satisfied on the balance of probabilities that Ms Ching was suffering from symptoms that were the cause of some impairment at that time and that those symptoms were the result, at least in part, of pathology in the left shoulder. That conclusion is supported by subsequent medical opinions.
56. On 9 January 2002 Dr Gotis-Graham diagnosed “bilateral shoulder rotator cuff impingement”. On 11 February 2002 Dr R. Chase, occupational physician, examined Ms Ching and subsequently reported “a left shoulder impingement syndrome probably secondary to subacromial bursitis” and a “probable” previous right shoulder impingement syndrome.
57. Applying the civil standard, I am compelled by this evidence to conclude that Ms Ching suffered from bicipital tendonitis, subacromial bursitis and bilateral shoulder impingement syndrome.
58. With regard to the issue of causation, I accept the evidence of Ms Ching and Dr Lau that she had no complaints of shoulder or arm symptoms prior to the onset of these conditions in or about August 2001. The weight of the contemporaneous medical evidence points to the repetitive duties Ms Ching performed in operating the Spectrum 10 coding machine as the cause of the symptoms and conditions she subsequently suffered. I so find. It appears that Australia Post came to a similar conclusion on 7 December 2001.
59. There is some suggestion that the repetitive duties may have aggravated a pre-existing condition. However, there is no evidence before me of any pre-existing condition. Nonetheless, whether the conditions arose as a result of frank injury, which I am satisfied is the case, or by means of aggravation, they are compensable under the Act.
60. It was put forward in submissions for Australia Post that Ms Ching did not have to use her left arm to clear jams in the Spectrum 10 coding machine at a rate sufficient to cause injury. That submission relied on oral evidence of Dr Gotis-Graham under cross examination that the particular action would need to be repeated up to 100 times in a 45 minute session. I do not accept that submission. Dr Gotis-Graham gave evidence that he could not be precise in specifying the number of times the action would need to be repeated to cause impingement. He made the point that the critical factor is the angle of the arm and hand and the amount of force that is required, not just the frequency.
61. In Australia Post’s submission there is no basis on which to conclude that Ms Ching’s claimed right shoulder impingement was caused by her employment. I do not agree. Ms Ching’s evidence was that she favoured her left arm when it was sore and, from time to time, used her right arm to perform all of the functions she would normally use her left arm to perform when operating the Spectrum 10 coding machine. That evidence was not seriously challenged and I accept it. Clearly, if those repetitive functions and actions are the cause of her left shoulder impingement it is reasonable to conclude that those functions and actions, when performed using her right arm, were the cause of her right shoulder impingement in the circumstances Ms Ching described. On the balance of probabilities I am compelled to that conclusion.
62. Ms Ching’s bicipital tendonitis, subacromial bursitis and bilateral shoulder impingement syndrome are injuries under the Act in relation to which Australia Post is liable to pay compensation in accordance with the Act.
injury – left forearm, wrist and hand
63. Ms Ching suffered from symptoms of pain and localised numbness in her left forearm, wrist and hand on or about 15 February 2002. While medical minds differ about the diagnosis and underlying pathology, if any, of those symptoms, I am satisfied that they are related to Ms Ching’s repetitive duties in employment and constitute an injury under the Act.
64. It is germane to carefully consider the medical evidence in chronology.
65. On 11 February 2002 Ms Ching was examined by Dr Chase, who did not report any complaint of left forearm, wrist or hand pain. On 18 February 2002 Ms Ching completed an incident report in which she reported the onset of symptoms of pain in her left arm and hand in consequence of “extra work” commencing on 13 February 2002. Specifically she reported “left arm sore and pain on 15/2/2002, left hand sore on Monday all day (18/2/2002)”. Ms Ching claimed that “when I do cull out SL, parcels and face up, I had to use my left hand to hold the tray whicht was moved on the belt, I feel my arm joints shake, discomfortable, after I felt my left arm sore and pain.”
66. As will appear, there is significant divergence of opinion regarding the diagnosis of Ms Ching’s left arm symptomatology. On 15 April 2002 Dr Chan reported that she had no previous history of “arm, forearm, hand, wrist or shoulder pains until her recent injury”. On 22 February 2002 Dr F. Masters, general practitioner, diagnosed “left carpal tunnel syndrome”. However, that diagnosis was not confirmed by neurological testing. On 8 March 2002 Dr Masters diagnosed “overuse syndrome of L hand and forearm due to flexor tendonitis in the L forearm and hand”. On the same day Dr Gotis-Graham made a similar diagnosis. On 22 March and 22 April 2002 Dr Masters reiterated that diagnosis. On 3 May 2002 Dr N. McGill, consultant rheumatologist, considered it was likely that “impingement/mild bursitis was the mechanism of her [previous] shoulder symptoms” but could not “offer an organic explanation for her left hand or other recent left upper limb symptoms”. On 5 August 2002 Dr Gotis-Graham reported “No organic cause was found for this [left forearm and hand] pain”. He concluded that overuse and chronic pain behaviour were significant contributing factors. On 14 August 2002 Dr M. Ellis, surgeon, reported:
“Tenderness was noted in the left elbow over both medial and lateral epicondyles. Elbow joint movements were full, the limits of movement were painful, and weakness was noted generally in the left upper limb.”
67. On 5 December 2002 Dr D. Bray, Surgeon, found no evidence of pathological lesion in her left arm and no evidence of medial or lateral epicondylitis, tenosynovitis or carpal tunnel syndrome. On 22 May 2003 Dr Gotis-Graham reported that Ms Ching suffered “Bilateral forearm and elbow pain due to medial and lateral epicondylitis of the elbows”. On 24 September 2003 Dr R. Whittaker was “unable to identify any definite physical disorder or ongoing disease, condition or injury”.
68. In the circumstances, the evidence of Ms Ching’s treating doctors, who examined and treated her over time, carry more weight than the evidence of doctors who examined Ms Ching on isolated occasions for medicolegal purposes. I accept Dr Gotis-Graham’s evidence that diagnosis of Ms Ching’s left arm condition cannot properly be considered on a single examination. However, it is also clear that Ms Ching’s treating doctors have difficulty formulating a consistent diagnosis in explanation of her symptoms over time.
69. Nonetheless, I am satisfied that Ms Ching’s symptoms constitute a condition that is outside the bounds of normal or usual functioning in her left arm, wrist and hand. The Act does not require the diagnosis of a condition giving rise to symptomatology before injury can be found. What is required is “a sudden and ascertainable or dramatic physiological change or disturbance of the normal physiological state” (see Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 300). In the present case Ms Ching suffered the onset of pain and localised numbness in her left forearm, wrist and hand that constituted a disturbance of the normal physiological state of that limb. That those symptoms caused impairment of function indicates their dramatic nature. Their onset occurred over a period of two or three days where no such similar symptoms had existed previously. It is true that pain is subjective and neurological testing in this case did not reveal abnormality. However, the clinical assessments of her left arm condition by her treating doctors over time points to a diagnosis of either an epicondylitis or a tenosynovitis in her left arm. I am unable to determine the correct diagnosis of Ms Ching’s left forearm and hand condition on the evidence that is before me. Nonetheless I accept the evidence of her treating doctors to the extent that an abnormal left forearm and hand condition was present and I so find.
70. That being the case it is necessary to determine whether her left arm condition was caused by her employment. I am satisfied that it was. No other plausible explanation for the onset of her symptoms was advanced by Australia Post. I accept Ms Ching’s evidence about the nature of the duties she was required to perform on or about 15 February 2002. Even though she was only required to perform the specific duties about which she complained for periods of 45 minutes, I am satisfied that such activity in the context of her other work duties at that time, was sufficient to cause the symptoms in her left forearm and hand. In so finding I accept the evidence of Ms Ching’s treating doctors. It is not clear from the evidence whether her previous injury played any part in the onset of her left arm symptoms and I make no finding in that regard.
71. Ms L. Bartholomeusz noted that “I asked her not to dig in trays but to take out what was obvious. It was not necessary to hold moving tray nor did I observe her doing so”. That evidence is not consistent with Ms Ching’s account. Ms Ching gave oral evidence that the trays were moving on the conveyor belt and piled up behind the tray in the hand that she was sorting. She stated that the ‘off’ switch for the conveyor belt was located eight or ten metres away from where she was working. In those circumstances I accept Ms Ching’s explanation that the requirement to hold the letter tray on which she was working with her left hand caused “pressure” on her left arm. I interpret that pressure to equate to force that she was required to exert using her left arm and hand. Ms Ching’s description of the onset of pain from her bicep to her forearm and into her hand was not challenged. I am satisfied that the onset of pain was related to the actions she performed with her left hand and arm in the course of her work duties on or about 15 February 2002.
72. It follows that Ms Ching’s left arm and hand condition arose out of or in the course of her employment and is an injury under the Act that is compensable.
liability
73. On 24 July 2002 Australia Post issued a reviewable decision in “reconsideration of a decision dated 29 May 2002 in respect of left and right shoulder condition” affirming that primary decision and determining “that Australia Post is no longer liable to pay compensation under section 14 of the Act in respect of your condition”. In the primary determination dated 29 May 2002 Australia Post determined that “on and from 29th May 2002 [Ms Ching] was no longer be [sic] entitled to the payment of compensation in respect of her shoulder condition”.
74. The original determination accepting liability for Ms Ching’s claimed condition did not specify the nature of that condition. It appears that, subsequently, Australia Post took the view that the condition was a bilateral shoulder condition. However, the original claim made by Ms Ching was in relation to her left arm. It was only in subsequent medical evidence that involvement of the left shoulder and subsequently the right shoulder emerged. I am satisfied that the acceptance of liability was in relation to the suite of symptoms of pain in her left arm and shoulders that were attributable to the incident that was the subject of her original complaint.
75. I note that the original determination did not make explicit reference to an acceptance of liability pursuant to s.14 of the Act. The determination explicitly referred to an acceptance of liability under s.16 of the Act in relation to payment of reasonable medical expenses and denied liability for payment of compensation pursuant to s.19 of the Act in relation to incapacity. Careful consideration of that determination persuades me to conclude that the acceptance of employment causation and the subsequent consideration of entitlement for payment of compensation under specific provisions of the Act (sections 16 and 19) implies acceptance of liability under s.14 of the Act. That interpretation is consistent with the interpretation adopted by the Australia Post delegate on subsequent review.
76. I am satisfied that the determination to accept liability was correctly made and complied with the requirements of a determination under s.14 of the Act (see Lees (supra)).
77. That being the case, the reviewable decision that purported to cease Australia Post’s liability for the previously accepted injury cannot stand (see Australian Postal Corporation v Oudyn (2003) 73 ALD 659 and Re Liu (supra)). Australia Post’s liability for the previously accepted injury is ongoing. The question whether compensation is payable in any amount under relevant sections of the Act is a matter that must be determined on the merits, or otherwise, of any such claim made by Ms Ching at that time.
permanent impairment
78. I find that the impairment of Ms Ching’s left arm and shoulders is not yet permanent. In order to so conclude it is necessary to have regard to the matters set out at s.24(2) of the Act. Considering all of the evidence, I am persuaded to find that Ms Ching’s compensable conditions are amenable to improvement.
79. The evidence is that in the three years since the onset of Ms Ching’s complaints the intensity of her symptoms has been susceptible to environmental factors, such as the pursuance or absence of certain activities. Dr Masters reported that Ms Ching’s symptoms “improved markedly” on her return from two overseas vacations. He reported that:
“Her symptoms have always improved with a period of rest from letter sorting, a very repetitive job. Symptoms have improved when the employer gave her administrative duties for short periods. Her disability continues simply due to the fact that she is still mainly doing the same work that caused her disability in the first instance…”
Ms Ching’s evidence was that movement, such as that required in her coding and sorting duties in employment, increases the intensity of her symptoms. She stated that her pain was constant but when cross examined on this point agreed that she did not experience pain if she avoided physical movements. Dr Chan reported on 2 May 2004 that “the kind of work she is doing [sorting large letters] is still aggravating her condition”.
80. It appears that psychological stress in the workplace may also be contributing to the persistence of Ms Ching’s compensable condition. Dr Gotis-Graham gave oral evidence that Ms Ching’s chronic illness behaviour and anxiety make it difficult to interpret her clinical signs. His evidence was that Ms Ching has become pain focussed and cautious using her upper limbs. He observed that “pain perpetuates anxiety and anxiety perpetuates pain” and reported:
“Mrs Ching’s symptoms of rotator cuff impingement syndrome have been perpetuated by the nature and conditions of her employment, the inadequate provision of suitable duties … and the persistence of adverse psychological factors in the workplace.”
Dr Bray observed “whether or not [repetitive strain injury] is a psychological illness, it is associated with a perceived stressful workplace situation” in Ms Ching’s case. The weight of the medical evidence is consistent with Dr Bray’s observation. Dr McGill concluded “the likelihood of [Ms Ching] reporting further symptoms and having time off work is high unless the interpersonal relationship problems in the workplace are solved”. I am compelled to agree.
81. It appears that Ms Ching’s condition may be improved by appropriate management in her workplace. Dr Bray’s conclusion that “management of her workplace ergonomics is the only active treatment that is indicated” finds support in the conclusions of Dr Gotis-Graham, Dr Masters and Dr Chan, Ms Ching’s treating doctors. I accept that conclusion and find that until these workplace factors are properly addressed and managed Ms Ching’s condition is likely to persist.
82. That being the case, I am compelled to conclude that Ms Ching’s compensable conditions are not yet permanent and assessment of the degree of permanent impairment would be premature at this time. In so finding, I accept Dr Bray’s conclusion “I do not regard her as stabilised I would not at this time assess any permanent impairment”.
conclusion
83. Ms Ching was injured in the course of her duties in employment on or about 31 August 2001 and 15 February 2002. She suffered bilateral shoulder and left upper limb injuries that were caused by the repetitive duties she was required to perform. Australia Post is liable to pay compensation in relation to those injuries in accordance with the Act. That liability did not cease on 29 May 2002 and is ongoing. It follows that the reviewable decisions in applications N2002/1112, N2002/1113 and N2003/1603 must be set aside.
84. Ms Ching’s compensable injuries are not yet permanent. It would be premature to assess the degree of permanent impairment at this time. It follows that the reviewable decision in application N2003/1602 is varied on that basis.
85. I note that Ms Ching’s conditions are amenable to improvement by appropriate management of ergonomics and stresses affecting Ms Ching in the workplace. That is a matter for Australia Post. This decision does not preclude Ms Ching from bringing a claim for permanent impairment compensation in the future.
86. Finally, turning to the issue of costs orders, these decisions are favourable to Ms Ching. In the circumstances it is appropriate to order Australia Post to pay her reasonable costs in these proceedings as agreed or taxed. I make that order pursuant to s67(8) of the Act.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: A. Krilis
AssociateDate/s of Hearing 13 and 14 May 2004
Date of Decision 12 August 2004
Counsel for the Applicant Mr D Baran
Solicitor for the Applicant Mrs Robyn Fletcher
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Mr Graham Jones
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