D'Lima and Australian Postal Corporation (Compensation)

D'Lima and Australian Postal Corporation (Compensation) [2016] AATA 495 (15 July 2016)

Division

GENERAL DIVISION

File Numbers

2015/1849 and 2015/4292

Re

Rosemarie D'Lima

APPLICANT

And

Australian Postal Corporation

RESPONDENT

DECISION

Tribunal Deputy President Dr Christopher Kendall

Date 15 July 2016

Place Perth
The decisions under review are set aside.
Application 2015/1849
In substitution for the decision made on 1 April 2015, the Tribunal determines that, pursuant to section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1998 (Cth), (“SRC Act”) the respondent is liable to pay compensation for the aggravation of the applicant’s pre-existing degenerated right shoulder.
Application 2015/4292
In substitution for the decision made on 24 July 2015, the Tribunal determines that, pursuant to section 16 and section 19 of the SRC Act, the respondent is liable to pay compensation for the aggravation of the applicant’s pre-existing degenerated left shoulder.
The Tribunal remits this matter to the respondent for reassessment of the applicant’s claims for compensation in accordance with the reasons outlined herein.
The Tribunal orders, pursuant to section 67(8) of the SRC Act, that the Respondent pay the Applicant’s reasonable legal costs and disbursements, as agreed, or, in the absence of agreement, as assessed, in accordance with Section 6.9 of the Tribunal’s Guide to the Workers’ Compensation Jurisdiction.
........................[sgd].....................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION – degenerative shoulder pathology – whether a disease or an injury (other than a disease) – whether aggravation of shoulder ailments substantially contributed to by employer – whether any aggravation resulted in incapacity or impairment – decisions under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 4, 5A, 5B, 14, 16 and 19
CASES
Comcare v Reardon [2015] FCA 1166
Commonwealth v Beattie [1981] FCA 88
May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93
Reardon and Comcare [2015] AATA 360
Su v Comcare [2011] AATA 934
Tippett v Australian Postal Corporation [1988] FCA 335
SECONDARY MATERIALS
Safety, Rehabilitation and Compensation and Other Legislation Amendment Bill 2006, Explanatory Memorandum – pages iv and viii
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
15 July 2016
INTRODUCTION

This matter concerns two applications for review made by Rosemarie D’Lima.
Application 2015/1849, lodged with the Tribunal on 17 April 2015, requires the Tribunal to determine whether Mrs D’Lima is entitled to compensation pursuant to section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the “SRC Act”) in relation to her claim for a “right shoulder strain”.
Application 2015/4292, lodged with the Tribunal on 20 August 2015, requires the Tribunal to determine whether Mrs D’Lima is entitled to compensation pursuant to section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the “SRC Act”) in relation to her claim for a “left shoulder strain”.
FACTS
An overview of the facts relevant to this matter was provided Mrs D’Lima’s solicitors in a Statement of Facts, Issues and Contentions filed on 2 March 2016 at paragraphs 2-28. This overview was not in dispute before this Tribunal. The Tribunal also notes the summary provided by the Respondent, Australian Postal Corporation (“Australia Post”) in a Statement of Facts, Issues and Contentions dated 14 March 2016 at paragraphs 1.1 to 1.6. That summary was also not in dispute.
Mrs D’Lima is 63 years old. She began working with Australia Post on 8 October 2007 and is now employed as a Mail Officer at the Perth Mail Centre. Her job essentially requires her to operate mail processing machines – feeding letters from letter trays and removing processed items etc. She has also been required to lift and tip mailbags as part of her normal duties.
Application No 2015/4292 (left shoulder injury)
On or about 28 July 2010, Mrs D’Lima claimed to have injured her left shoulder while undertaking her normal duties with Australia Post.
Mrs D’Lima completed an incident form as required and explained that the injury occurred when she was “tipping in the mail”. Mrs D’Lima submitted a claim form on or about 20 August 2010 for “sore left shoulder”.
Mrs D’Lima’s claim was initially accepted by Australia Post by way of a determination dated 14 October 2010. Her injury was described as “left shoulder strain”.
Mrs D’Lima was placed on restrictions at work following this injury. These restrictions prohibited her from doing any work “above the shoulder” and imposed lifting restrictions of up to 8kg. Mrs D’Lima has remained on restricted duties since she submitted her injury claim form. Ongoing medical certificates have been provided, detailing physical restrictions.
On or about 10 August 2011, Mrs D’Lima was put on permanent restrictions for her left shoulder. These restrictions limited the number of hours she could work on the various machines to which she had been assigned, required that she avoid lifting more than 14 kilograms and limited overhead lifting to one or two kilograms.
These restrictions remained in place until Australia Post reviewed Mrs D’Lima’s claim and arranged for an independent medical examination to be conducted by Consultant Orthopaedic Surgeon Fredrick Phillips.
Mr Phillips prepared a report dated 27 May 2015.
On the basis of the report provided by Mr Phillips, Australia Post issued a determination dated 25 June 2015 ceasing liability for Mrs D’Lima’s left shoulder condition under sections 16 and 19 of the SRC Act.
Mrs D’Lima then sought a reconsideration of that decision, arguing that the medical evidence was supportive of her left shoulder injury continuing to be work-related. Her legal representatives wrote to Australia Post on 21 July 2015 and attached medical certificates from her General Practitioner, Dr Richard Kain.
Australia Post issued a reconsideration on 24 July 2015 which confirmed the initial decision. Relevantly, the reconsideration stated:
You were medically examined by Mr Phillips on 20 May 2015
Mr Phillips provided a medical report dated 27 May 2015 whereby he stated that:
“In my opinion the condition is one of age related degenerative rotator cuff disease with full-thickness with retraction and almost certainly now secondary bony changes”.
“The condition is not related to employment with Australia Post. It is an age-related condition. The progress to date is natural progression of the underlying condition”.
“The shoulder became symptomatic at work. It may have become symptomatic at anytime, anywhere”.
“In relation to work related injury there was no work related injury”.
“In my opinion, there was no compensable injury”.
As there is no indication that you presently suffer from a compensable injury and in pursuance of the provisions of the Safety Rehabilitation and Compensation Act, there is no medical evidence to support your current symptoms are related to your previous claim with Australia Post. Therefore I am providing a formal determination advising Australia Post is not currently liable to pay certain compensation benefits for your condition in respect of “left shoulder strain”.
Mrs D’Lima seeks a review of that decision before this Tribunal.
Application No 2015/1849 (right shoulder injury)
On or about 25 June 2012, while undertaking her normal duties (with restrictions) at Australia Post, Mrs D’Lima claimed to have injured her right shoulder. This occurred approximately two years after she claims to have injured her left shoulder.
Mrs D’Lima claims that she was injured while she was lifting mail out of a tray to feed onto a conveyer belt.
Mrs D’Lima reported the incident to her manager and completed an incident form on the same day.
Mrs D’Lima subsequently saw her general practitioner for treatment and was provided with a medical certificate.
Mrs D’Lima submitted a claim form to Australia Post on 27 June 2012. She described her injury as “shoulder right”.
Australia Post accepted liability for Mrs D’Lima’s claim on 5 September 2012 and identified her injury as “right shoulder strain”.
Mrs D’Lima has remained on restricted work duties since submitting her injury claim form. Ongoing medical certificates have been provided indicating the need for ongoing restrictions at work.
Mrs D’Lima sought medical treatment for her right shoulder and was referred for treatment to Orthopaedic Surgeon, Hari Goonatillake. This occurred on 13 August 2012. Mrs D’Lima had previously seen Mr Goonatillake in 2010 in relation to her left shoulder pain.
Mr Goonatillake recommended that Mrs D’Lima undergo right shoulder surgery. She chose not to at that time and has not had any surgery to date.
Australia Post then sought a medical opinion from Consultant Orthopaedic Surgeon Anthony Cairns. Mr Cairns assessed Mrs D’Lima on 7 March 2014.
On the basis of the opinion provided by Mr Cairns, Australia Post issued a determination dated 2 May 2014 ceasing liability under sections 16 and 19 for Mrs D’Lima’s right shoulder.
Mrs D’Lima requested a reconsideration of this decision on 27 March 2015.
Australia Post issued a reconsideration on 1 April 2015 which affirmed the original decision in relation to her right shoulder. Relevantly, the reconsideration stated:
Dr Hari Goonatillake, Orthopaedic Surgeon, reported on 21 September 2012, stating that Ms D'Lima was seen on 13 August 2012 for right shoulder problems. Dr Goonatillake opined that Ms D'Lima suffers from rotator cuff tear with associated pain and restrictions, and considered it ‘likely’ that the condition is related to her employment.
Ms D’Lima was examined on 7 March 2014 by Mr Anthony Cairns, Orthopaedic Surgeon. In a report dated 26 March 2014, Mr Cairns stated: “... this 61-year-old postal officer presents with history of spontaneous onset of right shoulder symptoms in about mid-2010, for which she consulted orthopaedic surgeon Dr Goonatillake at that time and declined offered surgical intervention. Symptoms persisted more or less over the ensuing two years, at which time further aggravation, allegedly related to her work activities, prompted re-presentation and re-referral to Dr Goonatillake, who has again recommended consideration of arthroscopic intervention ...
... In my opinion, in the absence of any specific, identifiable provocative incident, the pathology involving Ms D'Lima's shoulders is of age-related, constitutional and degenerative nature, and although the underlying pathology may well have been symptomatically aggravated by her work-related activities, in my opinion it was not caused thereby”.
Mr Cairns stated: “in my opinion, the worker's causative pathologies of her current shoulder symptoms are more likely related to underlying constitutional, degenerative and attritional changes involving the structures of her shoulder joints.”
On 8 April 2014, Ms D'Lima was given notice of an intention to cease payments of compensation, based on the contents of Mr Cairns' report, and was given an opportunity to provide further evidence to support ongoing liability for her claim.
At the end of the fair opportunity period, Ms D'Lima had not provided anything further for consideration. Therefore, a determination was issued on 2 May 2014 denying present liability to pay compensation for medical treatment and incapacity in respect of your client's compensation claim for “right shoulder strain”, relying on Mr Cairns' opinion.
In your letter of 27 March 2015 you submit that subsequent medical evidence, particularly from Dr Kane, has indicated that your client has ongoing symptoms and restrictions arising from her right shoulder injury. Further, you maintain that she has an ongoing work injury in regards to her right shoulder.
...
Based on the medical opinion provided by Mr Cairns, as detailed in his report dated 26 March 2014, I am satisfied that Ms D'Lima does not continue to suffer the effects of a right shoulder condition attributable to her employment with Australia Post.
I acknowledge that Dr Kain has opined that Ms D'Lima's employment is a contributing factor to her right shoulder injury. However, his opinion is not supported by Mr Cairns, who has opined that the causative pathologies of her right shoulder symptoms are more likely related to underlying constitutional, degenerative and attritional changes involving the structures of the shoulder joints.
In the absence of any medical opinion to refute Mr Cairns' specialist medical opinion, and for the reasons set out above, I am therefore satisfied that the medical evidence before me supports that your client does not currently suffer the effects of an “injury” related to her employment with Australia Post …
Mrs D’Lima now seeks a review of that decision by this Tribunal.
ISSUES
In broad terms, the main issues before this Tribunal in relation to both applications are as follows.
Application No 2015/1849 (right shoulder)
In relation to Mrs D’Lima’s right shoulder, the issues to be determined by the Tribunal are:
I.Whether Australia Post is liable to pay compensation to Mrs D’Lima pursuant to section 16 and 19 of the SRC Act for “right shoulder strain”.
II.If so, whether, in the period from 2 May 2014 to date and presently:
a) Mrs D’Lima has reasonably required medical treatment in relation to her condition, such as to entitle her to compensation pursuant to section 16 of the SRC Act; and/or
b) Mrs D’Lima has been incapacitated for work as a result of her condition, such as to entitle her to compensation pursuant to section 19 of the SRC Act?
Application No 2015/4292 (left shoulder)
In relation to Mrs D’Lima’s left shoulder, the issues to be determined by the Tribunal are:
I.Whether Australia Post is liable to pay compensation to the Applicant pursuant to section 16 and 19 of the SRC Act for “left shoulder strain”.
II.If so, whether, in the period from 25 June 2015 to date and presently:
a) Mrs D’Lima has reasonably required medical treatment in relation to her condition, such as to entitle her to compensation pursuant to section 16 of the SRC Act; and/or
b) Mrs D’Lima has been incapacitated for work as a result of her condition, such as to entitle her to compensation pursuant to section 19 of the SRC Act?
Based on the evidence before the Tribunal and the various concessions made by both parties in their Written Closing Submissions, in order to answer these issues, the Tribunal will also need to address the following questions:
a)Does Mrs D’Lima suffer from a “disease” within the meaning of s 5B of the SRC Act, and, in particular:
(i) does Mrs D’Lima suffer from an ailment which was contributed to, to a significant degree, by her employment with Australia Post; or
(ii) has she suffered an aggravation of such an ailment which was contributed to, to a significant degree, by her employment with Australia Post; and
b) If Mrs D’Lima has suffered a “disease” within the meaning of the Act, has that disease resulted in “incapacity” or “impairment” such that she is entitled to compensation pursuant to s 14 of the Act?
LEGISLATION
An overview of the legislation relevant to this matter was provided by Australia Post in Written Closing Submissions dated 19 May 2016 at paragraphs 8 to 14. The Tribunal notes relevantly as follows.
Mrs D’Lima’s matter requires the Tribunal to examine and apply the provisions of sections 4, 5A, 5B, 14, 16 and 19 of the SRC Act.
Section 4(1) of the SRC Act provides that, unless the contrary intention appears:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
…
disease has the meaning given by section 5B.
injury has the meaning given by section 5A.
Section 5A of the SRC Act relevantly provides that “injury” means.
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Section 5B provides the definition of “disease”. It provides as follows.
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
By virtue of section 14 of the SRC Act, a respondent will be found liable to pay compensation in respect of any injury suffered by an employee if the injury results in death, incapacity for work, or impairment. By virtue of section 4(9) of the SRC Act an “incapacity for work” means an incapacity for work suffered by an employee as a result of an injury being an incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred.
Section 16 of the SRC Act provides for compensation in respect of medical expenses. It relevantly provides as follows.
(1)Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
Section 19 provides for compensation for injuries resulting in incapacity. It relevantly provides as follows:
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula: …
EVIDENCE
This matter was heard over two days in Perth on 19 and 20 May 2016. Mrs D’Lima was represented by counsel, Mr Roberts. Australia Post was represented by counsel, Mr Woulfe.
The Tribunal was provided with a significant number of materials relevant to Mrs D’Lima’s claims. This comprised:
·A 106 page set of T-documents (T1 to T43) in relation to 2015/1849 (right shoulder) dated 3 June 2015
·A 185 page set of T-documents (T1 to T65) in relation to 2015/4292 (left shoulder) dated 11 September 2015
·A set of Supplementary T-documents comprising 94 pages in relation to both Application No 2015/1849 and Application No 2015/4292
·A 110 page book of medical certificates dated 15 April 2016
·A report from Dr Richard Kain dated 21 March 2016 (A1)
·A report from Orthopaedic Surgeon Mr Goonatillake dated 29 March 2016 (A2)
·Written Statement from Mrs D’Lima dated 1 April 2016 (A3)
·A letter from Tindall Gask Bentley (solicitors) attaching invoices from Complete Corporate Health and the Applicant’s prescription history, dated 14 April 2016 (A4)
·Various clinical notes of St Andrews Medical Group dated October 2003 to August 2010 (A5)
·Chronology of Events - prepared by solicitors for Mrs D’Lima (A6)
·Various Invoices from Mr Goonatillake dated 16 March 2016 (A7)
·Report from Orthopaedic Surgeon Mr Alexeeff dated 28 August 2015 (R4)
·Further Report of Mr Alexeeff dated 17 September 2015 (R5)
·Mr Alexeeff’s CV (R6)
·Medical records of Rosemarie D’Lima as at 25/6/2015 from Complete Corporate Health (R7)
·Report of Dr Desmond Williams dated 5 August 2004 (R8)
·Discharge Summary from Gillian Gates, Physiotherapist, dated 12 December 2003 (R9)
·Clinical notes of St Andrews Medical Group between 28 April 2003 and 30 July 2003 (R10)

The Tribunal also received a Statement of Facts, Issues and Contentions from Australia Post dated 14 March 2016 and a Statement of Facts, Issues and Contentions from Mrs D’Lima’s solicitors dated 2 May 2016. Following the hearing of this matter, Written Submissions were received from counsel for Australia Post dated 19 May 2016. Written Submissions were then received from counsel for Mrs D’Lima dated 9 June 2016. Finally, Submissions in Reply were received from counsel for Australia Post dated 14 June 2016.
The Tribunal has reviewed all of the above and highlights the following.
NON-MEDICAL EVIDENCE
Statement of Rosemarie D’Lima dated 1 April 2016 (A3)
This statement reads as follows:
Personal Details
1.        I am currently 63 years old and my date of birth is 18 October 1952.
2.        I was born in Bangalore in India.
3.        I completed my schooling in India.
4.        I then studied teaching at college.
5.        I am married to Austin D'Lima.
6.        We have two sons.
Medical History
7.In early 2013 I saw the doctor about a lump I had on my right middle finger it has not caused me any ongoing problems with work or day to day activities generally.
8.I had some right knee pain in about November 2003 for which my GP referred me to Dr Desmond Williams for an opinion.
9.I underwent surgery to repair a tear in my right knee in June 2004. I am not sure what caused this and there was no injury claim made.
10.I have some infrequent symptoms in my right knee from time to time. But it generally does not limit me in my day to day activities.
11.I have never had shoulder problems before commencing work at Australia Post.
Employment History
12.      Whilst living in India I worked as a teacher for a number of years.
13.      I emigrated to Australia in 1991.
14.Once we arrived in Perth, l found employment as a cleaner for a couple months at the Princess Margaret Hospital.
15.My duties at this employment included mopping floors, cleaning bathrooms and basic cleaning of the rooms.
16.      I was then employed as a housekeeper at the Parmelia Hilton.
17.      I worked there for about 14 years.
18.      My duties again included generally cleaning of the rooms.
19.I had made no work injury claims prior to my employment with Australia Post.
Employment with Australia Post
20.      I commenced employment with Australia Post in 2007.
21.      I was initially employed at the Perth Mail Centre as a Mail Officer.
22.I worked the night shift and performed about 7.21 hours per shift, 5 days a week.
23.I typically worked overtime when it was available which was usually about two hours per shift roughly. Of course the amount of overtime varied depending on the workload at the Mail Centre.
24.Prior to my injuries I usually worked approximately 45 hours a week, including overtime.
25.My role as a Mail Officer included working on a number of different machines, as well as manual hand sorting.
26.One of the first machines I learnt to work on was the Barcode Sorter Machine (BCS).
Barcode Sorter Machine
27.When I first started at Australia Post, I was able to perform all tasks on the BCS.
28.The first role would be to unload the trays of mail and place them on to the feeder from the conveyer belt.
29.The mail would travel down the conveyor belt and into the machine to be sorted.
30.      This role is usually referred to as the ‘driver’.
31.The driver would also be responsible for clearing any blockages or jams in the machine and ensuring the mail was lying flat as it moved down the conveyor belt.
32.There were then two ‘stackers’ who also worked on the BCS with the driver.
33.When performing the stacker role, I would be required to take bundles of mail from the stacker, turn around behind me and then place the bundle in the appropriate tray.
34.These trays were located in a stand which was usually about four trays high.
35.The top tray of this stand is high for me and would require me to reach at or above shoulder/head height to reach it.
36.As more mail was loaded into each tray, the tray would become heavier and heavier to pull out of its drawer.
37.Once a mail tray was full, I would push the tray all the way through to the other side of the frame and then go around to get it and put it on to a Unit Lifting Device (ULD).
38.There were two stackers because there were two sides to the BCS that mail needed to be collected from (both stackers would do the same thing basically, as set out above).
39.If my particular side was not receiving any sorted mail, sometimes I would go and help the person on the other side sorting,
40.Initially I would spend 20 minutes performing each role on the BCS, that is 20 minutes driving and stacking for 20 minutes on each side.
41.      We would work on the BCS for one hour at a time roughly.
42.We worked in a team of three and after the allotted time we would move on to the MLOCR machine.
MLOCR
43.Another machine I learnt to work on when I first started at Australia Post was the MLOCR.
44.      This machine was for sorting standard size letters.
45.There are typically four people working on the MLOCR at any one time, one driver, one tipper and two stackers.
46.One person would be responsible for tipping the mail from the trays on to the conveyor belt.
47.This is a very fast paced machine so there is a driver who is responsible for straightening and/or flattening out the mail on the conveyor belt and fixing any jams in the machine.
48.      The two stackers are again on each side of the machine.
49.When the mail comes out I would be required to pull out the tray (the small box that the mail is sorted in to), grab the bundle of mail and put It in to the mail tray behind me.
50.When the mail tray was full I would place the full tray on to the Kingfisher, which is similar to the ULD but it has three shelves.
51.The top shelf of the Kingfisher is quite high and was above shoulder height for me.
52.      We would spend 15 minutes in each role and then rotate around.
53.After one hour we would usually move back to the BCS machine but it would depend on how much mail we had each night as to whether we continued machine work or performed a different role.
Support role
54.There was another role that assisted with these two machines called a support person.
55.If I was a BCS support person I would collect the trays full of mail from the BCS and place them on the ULD.
56.These tray [sic] were often heavy, weighing up to roughly 16-17kg each, on occasions.
57.I would then push the full ULD with the manual lifter towards the electric pallet lifter (which was unable to fit near to the machines).
58.I would then transfer the ULD on to the electric pallet lifter and take the mail to the welding machine.
55.I would then take the weighed mail to the appropriate door leading to the dock and leave it there for the dock workers to collect.
60.For the return journey I would collect the empty mail trays and bring them to the BCS to be filled with mail as the sorting progressed.
61.I would also leave an empty ULD nearby to be used by the next support person.
62.      This role would be performed for the five BCS machines.
MLOCR RUNNER
63.There was a support person for the MLOCR machine as well, called the MLOCR runner.
64.As the mail was sorted and distributed into trays, the stackers place the mail in to trays behind them and then put the full trays on to the Kingfisher.
65.When I was the runner I would be required to take the full Kingfishers to an empty ULD and transfer the trays over by lifting them from the Kingfisher and putting them into the ULD.
66.The trays would weigh between 7-12kg each approximately.
67.The Kingfisher has three stackers, one at the top, one in the middle, and one at the bottom. The Kingfisher is a trolley that is taller than me and it is quite long, approximately two metres long and it is on wheels.
68.The top shelf of the Kingfisher would require me to reach up to get the trays out.
69.The runner was responsible for the four MLOCR machines.
70.I did not perform these roles for very long each shift, but it would vary depending on how much mail was required to be sorted.
71.      I would the runner role for about one hour some shifts [sic].
72.I would do the same with the support role, approximately one hour on some shifts.
MMF
73.      I also performed a hand sorting role called MMF.
74.The MMF role required me to sit in a chair and hand sort the mail into a frame which was in front of me.
75.      The chair height could be adjusted so that I was comfortable.
76.The frame wraps around containing 3 sides basically, that is there are boxes to sort in to on the left and right and in front of the sorter.
77.      These frames are usually about 4 columns wide and about 8-10 rows high.
78.      I would usually perform this role for one hour per shift.
79.This is usually what l would perform in overtime, once our machine work was finished.
RAPS
80.      Another role I would undertake was called RAPS.
81.This role was performed on mail that was entering the mail centre for the first time.
82.The big bags of mail would be brought in by the Postal Delivery Officers from the pillar boxes and we would be required to perform an initial sorting.
83.One person would act as a tipper and would pick up the full mail bags to tip the contents on to the conveyor belt.
84.Sometimes these bags were about 17-20kg roughly so I would often require assistance to lift them if I was performing this role, but that was not always possible.
85.When the mail was tipped on to the conveyor belt, two people would stand on either side of it and perform the role of a ‘culler’.
86.      A culler would remove anything that wasn't a letter from the conveyor belt.
87.This could include parcels, wallets, rubbish, etc (basically anything people would put into a post box).
88.Sometimes if there were dangerous items there we would call our supervisor to assist (i.e. needles, white powder etc).
89.This was fast paced, forward reaching work, however if I was acting as the culler I was able to work mostly below shoulder height.
90.If I was acting as a tipper then I was frequently required to lift heavy bags of mail.
91.Once mail moved past the culler it would travel up the conveyor belt to the cancelling station.
92.      The mail went through a stamping machine at the cancelling station.
93.      There were three people at the cancelling station.
94.One person would sit towards the back of the stamping machine and if there were any jams, they would be required to stop the machine, open it and then fix the jam.
95.      I only performed this role occasionally.
96.The person responsible for fixing jams would also perform hand stamping on mail that was described as “un-machinable”.
97.This meant the letter was too thick perhaps or for some reason would not be fed through the machine.
98.      These letters had to be stamped by hand for that reason.
99.This was considered a light duty within the mail centre. I only performed this role infrequently in the immediate days after each of my injuries.
100.When I was one of the two people in the cancelling station, we would gather the mail as it came out of the stamper and place it on to a Kingfisher, ready to be taken to the MLOCR.
101.The MLOCR runner would then collect the full Kingfisher and take the mail to the machine to be sorted
102.When I performed work on the RAPS or in the cancelling station, we would rotate duties every 15-20 minutes, but remain on the RAPS for a total of one hour.
103.In short prior to my injuries l spent most, but not all, of my time on the BCS and MLOCR machines.
104.I would usually perform my machine duties on about 6 or 7 hours per shift, and the other roles for about one hour per shift roughly,
105.     I rotated between roles hourly,
106.I performed work at or above shoulder height on a daily basis prior to my injuries.
107.I did not perform the MMF or RAP roles very often during my initial years at Australia Post.
108.     I only performed the duties described above until my left shoulder injury.
Left shoulder Injury
109.On 28 July 2010 I was working on the MLOCR machine in the driver role when I flipped a particularly heavy tray of mail on to the conveyor belt.
110.I felt an immediate pain in my left shoulder, which I reported to my manager.
111.     I completed an Incident Form on 28 July 2010 when my injury occurred.
112.     I was able to continue working for about 4 hours on that shift.
113.     I think it occurred at about 9:00pm.
114.l consulted my general practitioner, Dr Kain, the following day on 29 July 2010.
115.     I went to work that night on 29 July 2010.
116.     I recall I did mostly seated jobs such as MMF and hand stamping that day.
117.I didn't take any nights off, I just continued to work within the restrictions provided by Dr Kain.
118.     Dr Kain prescribed Panadeine Forte and Nurofen for my pain.
119.We trialled conservative management of my shoulder injury initially, with work restrictions, however my pain continued.
120.I completed a claim form for Australia Post on 20 August 2010 in relation to my injury.
121.My claim was accepted under section 14 of the Safety Rehabilitation and Compensation Act (SRCA) on 14 October 2010.
122.My pain had not improved over a number of months of conservative treatment so on 20 October 2010 Dr Kain sent me to get an Ultrasound of my left shoulder because my shoulder was not improving.
128.The Ultrasound dated 25 October 2010 showed I had sustained a full thickness tear of the supraspinatus and a small, partial tear of the subscapularis.
124.     I was also found to suffer subacromial bursitis and effusion.
125.     Dr Kain then referred to Dr Goonatillake for an opinion on my injury.
126.     I consulted Dr Goonatillake on 16 November 2010.
127.Dr Goonatillake suggested I undergo surgery to repair the tear but I was not inclined to agree to this because l was concerned the surgery would not completely repair my shoulder injury.
128.     Following my injury I was placed on restricted duties.
129.This meant my work duties were generally undertaken depending on what the medical certificate cleared me to perform.
130.I continued to provide ongoing medical certificates following my injury which set out what my restrictions were at the relevant time.
131.Since this injury to the best of my recollection I have not undertaken any over time work.
132.I did not undergo physiotherapy treatment initially but I performed home exercises as recommended by my doctor.
133.I maintained regular consultations with my general practitioner and continued to obtain medical certificates to cover my work restrictions with my left shoulder.
134.My main problems immediately following this injury was pain in the shoulder and restricted movement in my left shoulder/arm.
135.For example I was unable to do up zips on any clothes or fasten my bra. I would ask my husband to assist me with this.
136.     I experienced severe pain almost every day.
137.I found my medications made the pain slightly better so that I could perform modified duties at work.
138.Initially I was certified to only use my right upper limb for over shoulder tasks occasionally.
139.I found it was not possible to stick to completely to the restrictions given the nature of the duties I was being asked to complete.
140.For example, when working on the BCS in the stacker role, sometimes I wouldn't be aware if the tray I was pulling out was heavy when removing it from the machine.
141.This would be particularly if we had just started on the machine from another rotation.
142.If the tray was heavy I would experience severe pain in my shoulder when lifting or pulling it out, particularly if I was reaching at or above shoulder/head height with my left arm.
143.Prior to injuring my right shoulder I would also perform some duties on the MLOCR with a ‘buddy’, for a period of time.
144.There would be times when my left shoulder was painful because of my duties on the MLOCR, particularly worse when doing tasks at or above shoulder/head height.
145.I was taking Panadeine Forte and Nurofen when I was moved on to the ongoing restrictions program, which occurred in August 2011.
146.I undertook Thera-Band exercises at home throughout this time but did not seek physiotherapy treatment.
147.In July 2011 Dr Kain and my rehabilitation consultant determined I should be on long term permanent restrictions due to my left shoulder injury.
148.My permanent and ongoing restrictions commenced on 10 August 2011 and I was not part of any active rehabilitation from that time onwards for my left shoulder. This was confirmed by the form completed by my manager Michelle Watts, my rehab consultant Pam Eldridge and myself, dated 10 August 2011.
149.The ongoing restrictions form stated I was to rotate between machines and the MMF.
150.In August 2011 Dr Kain continued to recommend that I only perform machine based work for two hours at a time, but spread over the BCS for one hour and then the MLOCR for one hour (i.e. rotate between these 2 machines).
151.I was then required to return to hand sorting at the MMF for an hour, before starting again on the BCS.
152.I would do 2 hours on the machines mentioned above, then 1 hour sorting at the MMF and then back to the machines. This rotation would continue throughout my shift.
153.     I was doing full time hours with no overtime at this point.
Right Shoulder Injury
154.I had been experiencing increasing soreness in my right shoulder due to overuse because of my left sided restrictions.
155.I had consulted my general practitioner about my right shoulder difficulties on 13 July 2011.
156.     On 25 June 2012 I injured my right shoulder whilst working on the MLOCR.
157.The incident occurred while I was carrying a heavy mail tray and tipping it onto the conveyor belt, performing the driver role.
158.I continued until my hour on the MLOCR was over, but then I went and completed some paperwork with my supervisor.
159.I continued on with my shift but did not perform any machine work after the injury that day.
160.     I consulted Dr Phyo on 27 June 2012 as Dr Kain was unavailable.
161.Dr Phyo provided me with a medical certificate on the same day, stating I was not allowed to perform any machine work or any work above shoulder level. This certificate covered me until 16 July 2012.
162.Dr Phyo sent me for an ultrasound of my right shoulder which was undertaken on 25 July 2012.
163.I understand the ultrasound showed tendiopathy [sic] and a full thickness tear of the supraspinatus tendon and advanced subacromial bursitis.
164.I was again referred to Dr Goonatillake whom I consulted on 13 August 2012.
165.Dr Goonatillake again recommended surgery to repair this tear however I was unwilling to undergo this procedure.
166.I submitted a claim form to Australia Post on 27 June 2012.
167.My claim was subsequently accepted under section 14 of the SRCA on 5 September 2012.
168.I largely undertook conservative treatment for my injury and used Panadol Osteo, Voltaren Rub and a Theraband for home exercises.
169.I had very little time off after my right shoulder injury and I was able to return to fulltime hours after I consulted with Dr Phyo on 27 June 2012, but with restrictions.
170.I was unable to perform machine work for a period of approximately 6 months.
171.I was allowed to trial an hour on and an hour off with the BCS from about 8 January 2013, I was to rotate duties regularly but still unable to work above shoulder level.
172.I could only do a maximum of two hours per day on the BCS and the remainder of the time was hand sorting and stamping.
173.I was certified fit to increase my BCS work by one hour per day (and work on the machine a total of three hours per day, rotating with other duties) on 22 January 2013.
174.I was gradually able to build up my tolerance for machine work and was certified fit in March 2013 to work on the MLOCR also for one hour per day (initially with a buddy).
175.This was in addition to the three hours per day I was working on the BCS, rotating with other duties such as hand stamping and sorting but with no work above shoulder level.
176.Over this period from returning to working on the machines in about January 2013, there would certainly be days at work where I could not avoid duties at or above shoulder head height.
177.It certainly would occur on a weekly basis, usually multiple times, where I was required to lift or push or open trays at or above shoulder height, plus performing other duties at or above shoulder height. This certainly aggravated my pain and symptoms.
178.I continued working on the MLOCR for one hour per day and three hours per day on the BCS, until 10 October 2013 when I experienced an aggravation of my right shoulder injury.
179.I was working on the BCS when I pulled a particularly heavy tray of mail out of the stand and suddenly experienced severe pain in my right shoulder. I was putting the mail into the top tray at the time.
180.I was in a lot of pain, other co-workers saw this and stopped the machine.
181.I then taken immediately off that machine and didn't perform any further machine work that shift.
182.I recall the pain radiated down from my shoulder to my elbow approximately and I was required to take two Panadol Osteo in an attempt to manage the pain, whilst at work.
183.I consulted Dr Latt on 11 October 2013 and I was certified fit for full time hours, but with restrictions.
184. I did not complete an incident form at this time and l was under the impression that because I had an accepted right shoulder claim, I did not need to submit a further claim for compensation.
185.My doctor also told me her impression was that this was a flare up of my symptoms.
186.Dr Latt recommended I not use my right limb until review and perform light sorting duties only with no lifting.
187.This certificate was to cover me until 14 October 2013, when I returned for a review assessment.
188.Dr Latt referred me for an ultrasound and x-ray at this time because my symptoms were no better.
189.I was prescribed Panadeine Forte for my pain but was certified fit for full time hours, but with restrictions.
190.Dr Latt maintained my restrictions to avoid lifting and perform light hand sorting only until 22 October 2013. I was also to avoid using my right hand for any duties and was not to work on the machines.
191.When I consulted Dr Latt on 22 October 2013 I was advised the ultrasound dated 18 October 2013 showed rotator cuff tendinosis with a full thickness, full width tear of the supraspinatus tendon.
192.From that point on I consulted a doctor more regularly, approximately every fortnight to every month.
193.Sometimes Dr Latt was not available and I would consult Dr Azzam instead.
194.My restrictions remained the same until 17 January 2014 when Dr Azzam referred me for a further MRI scan on 20 January 2014 and for an appointment with Dr Goonatillake following that scan.
195.In late January 2014 I was certified to perform light sorting duties, with no lifting and limited use of my right upper limb. I was still not cleared for machine work.
196.I was being prescribed Panadeine Forte at this time.
197.On 4 February 2014 I again consulted Dr Goonatillake who continued to recommend surgery for my right shoulder injury.
198.Based on Dr Goonatillake's advice I decided to proceed with surgery which would include an arthroscopic acromioplasty, lateral clavicle extension and rotator cuff repair.
199.Dr Goonatillake requested approval from Australia Post to perform the surgery on 4 February 2014.
200.Australia Post required a second opinion and subsequently arranged for me to see Dr Cairns with respect to the requirement for surgery to my right shoulder injury.
Ceasing decision - right shoulder
201.I attended an assessment with Dr Cairns on 7 March 2014.
202.Dr Cairns provided a report on 26 March 2014 in which he stated my right shoulder injury was not a result of my duties with Australia Post but was related to my age.
203.I received a copy of Dr Cairns' report and a letter from Australia Post dated 8 April 2014 which advised they intended to cease my claim,
204.I requested an extension of time from Australia Post to respond to their letter as I was due to go overseas, I made this request in a letter dated 23 April 2014.
205.I received a written response from Mr Matthew McDowall dated 28 April 2014, granting me an extension until 30 June 2014 to respond.
206.However I received a determination from Australia Post dated 2 May 2014 which ceased liability for my right shoulder claim, despite the fact that I had not had a chance to provide them with any further evidence.
207.l was very disappointed by this as there were a number of errors in Dr Cairns report I wanted to point out to Australia Post, for example the fact that he mistakenly referred to the wrong date of injury for my left shoulder (i.e. he used the date of my right shoulder injury).
208.At the time of receiving the decision regarding my right shoulder the duties [sic] I was still performing restricted duties. My ongoing restrictions were as detailed in the medical certificates, mainly provided by Dr Kain.
209.In any event, I subsequently sought legal advice and appealed the decision made by Australia Post.
Restrictions since right shoulder ceasing decision (May 2014)
210.I was still taking Panadeine Forte at the time Australia Post ceased liability for my right shoulder injury.
211.Once the prescriptions l had ran out for this I took Panadol Osteo or Nurofen as I was aware I would need to pay for any medication myself from about May 2014 onwards. The medication was cheaper for me as I did not need a prescription from the doctor. I have since then mainly purchased the medication from the supermarket when doing other shopping.
212.I continued to take this medication on an ongoing basis and still take it presently.
213.Following the ceasing decision on my right shoulder I largely obtained separate medical certificates for my right shoulder and left shoulder injuries.
214.At this point, my left shoulder injury was still an accepted claim and I was generally undertaking restricted duties, as indicated in the medical certificates
215.I was continuing to see Dr Kain every month to obtain medical certificates, particularly for my left shoulder. But he also provided them for my right shoulder, usually at the same time, but often with a separate certificate.
216.On 14 July 2014, Dr Kain provided me with work restrictions which stated I was not to work on the machines, was only to perform straightening of mail and hand sorting.
217.I continued to experience pain in my right shoulder and left shoulder, particularly after each shift and worse at the end of the working week.
218.As was the case earlier, it remained not possible for me to work within my prescribed restrictions at all times. For example sometimes I would need to use my right or left arm more than was recommended, or I would be required to perform a task at or above shoulder/head height. This remained an ongoing problem for me.
219.I reported my pain and symptoms generally to Dr Kain when I saw him.
220.On 24 October 2014 Dr Kain provided me with a medical certificate covering both of my shoulders stating l was only to perform work below shoulder or chest height, but that I was able to ‘buddy up’.
221.The reference to a buddy means I was to start some machine work in a pair (i.e. with the support of a fellow worker).
222.This was on the BCS machine only,
223.Dr Kain provided a further certificate covering both of my shoulders on 22 December 2014.
224.This certificate stated I was able to work on the BCS every second hour in a buddy system. I was still not able to work above shoulder height.
225.This certificate covered me until 22 February 2015.
226.I consulted Dr Kain on 20 January 2015 about the ongoing pain in my left shoulder and the difficulties I was having with the permanent restrictions I was working under.
227.On 9 February 2015 I consulted Dr Kain again and he provided me with a medical certificate stating I was able to work on the BCS every second hour with a buddy, avoiding above shoulder work. This was for my left shoulder only and ran until 23 February 2015.
228.In my hours off l would perform light hand sorting work.
229.I consulted Dr Kain again on 23 February 2015 and he provided a certificate covering both shoulder injuries.
230.Dr Kain certified me fit to assist with culling and hand stamping as well as alternating between BCS machine and hand sorting into the MMF hourly and avoiding above shoulder work.
231.On 20 March 2015 I again consulted Dr Kain.
232.As a consequence of the ongoing difficulties and symptoms I was having he certified that I should not work on the MLOCR at all. I continued with the duties of alternating between the BCS and MMF hourly and avoiding above shoulder height duties.
233.This certificate covered both of my shoulder injuries until 21 April 2015.
234.Dr Kain altered my restrictions slightly when I saw him on 21 April 2015.
235.At this point Dr Kain began providing separate certificates for my left and right shoulder injuries.
236.For my left shoulder injury I was able to perform RAP (doing the assistant, culling and hand stamping duties), then l was to perform BCS for an hour, then MMF. Dr Kain certified I could perform duties on the lower trays of the MLOCR but the work place would not allow this.
237.My right shoulder certificate stated I could do the lower trays of the MLOCR but otherwise my duties should be below shoulder height.
238.Both certificates covered me until 20 May 2015.
239.I was managing these restrictions with some discomfort and still requiring Panadol Osteo and Thera-Band exercises to ease my pain.
240.In April 2015 I was moved on to the day shift, working 7.21 hours per day.
Ceasing Decision - Left shoulder
241.I obtained a medical certificate from Dr Fleming at the Complete Corporate Health Clinic on 18 May 2015. I received two separate certificates for my left and right shoulders.
242.Dr Fleming certified I still required ongoing restrictions at work for my left shoulder and should rotate between RAP, BCS for an hour and MMF for an hour. I was only to perform duties with the bottom tray of the MLOCR.
243.For my right shoulder, Dr Fleming certified no work above shoulder but I was able to perform lower trays of MLOCR.
244.I reported being in pain to Dr Fleming after having done prepping for two hours the day before however my pain was reduced with Panadol Osteo,
245.I also told Dr Fleming I was continuing with my Thera-Band exercises.
246.Dr Fleming certified the above restrictions for one month, until 18 June 2015.
247.On 20 May 2015 Australia Post scheduled an appointment for me with Mr Fredrick Phillips to assess my left shoulder injury.
248.I attended the appointment and was assessed by Mr Phillips.
249.l received a copy of the report dated 27 May 2015 in a letter from Australia Post dated 2 June 2015 again providing me an opportunity to respond to Mr Phillips' report.
250.On 23 June 2015 I received a letter from Australia Post, notifying me that my left shoulder injury claim had been ceased.
251.I sought legal advice and my solicitors requested a reconsideration of this decision for me.
252.My solicitors then assisted me in appealing Australia Post's final decision dated 24 July 2015.
Restrictions since left shoulder ceasing decision (May 2015)
253.I consulted Dr Kain again on 23 June 2015 and he continued to provide restrictions for the work I was doing.
254.I received a medical certificate for my left shoulder only, which covered me until 22 July 2015 which provided much the same restrictions as my previous certificate from before my claim was ceased.
255.I was to rotate hourly between the BCS and MMF and only work on the lower tray of the MLOCR.
256.Within these ongoing restrictions I was advised to avoid removing trays from the top level of the BCS.
257.In addition, I was restricted to lifting 10kg only with each hand.
258.Dr Kain noted in his certificate that bilaterally I had limited abduction and flexion.
259.I continued to consult Dr Kain throughout the remainder of 2015 and obtain medical certificates for my right and left shoulder injuries.
260.My restrictions for both shoulders have remained the same for 12 months now, that is throughout the remainder of 2015 and to date. Dr Kain has certified all work I perform must be below shoulder height, bilaterally.
261.I continued to take medication throughout 2015 and still take Panadol Osteo daily.
262.I find my shoulders are particularly sore at the end of each day because I am not always able to restrict my work to below shoulder height. There are necessarily some components of working on the BCS especially that require me to use my arms above shoulder height on occasions. It is sometimes just unavoidable.
263.Throughout 2015 and to the present time I have been able to work at a slightly slower pace on the BCS machine which is more suitable for my restrictions.
264.In addition, I am able to tip the mail in more slowly when performing the driver role on this machine which accommodates my restrictions well.
265.Because of the way in which the mail is sorted on the BCS I am able to work with someone fairly often on only one side of the machine. That is, because the mail sometimes will only sort on one side of the machine, my co-workers and I will help each other on one side together, meaning we can work at a pace more suitable for my restrictions.
266.Working with someone reduces the strain on my shoulders and makes the task slightly slower paced.
267.Sometimes, I find if the top trays on the drawer behind me become very heavy, so that I cannot push them in, I can just leave the tray sticking out slightly and someone else can push the tray in for me.
268.I have been unable to perform work on the MLOCR since about late 2013. This is mainly due to the multiple tasks that need to be performed on this machine, many of which are beyond my restrictions.
269.The MLOCR is a fast paced machine, often it is hard to avoid work at shoulder [sic] and the tipping of trays on the conveyor belt can be very heavy at times.
Current Circumstances
270.I have continued to consult Dr Kain regularly since my left shoulder claim was ceased and he usually provides me certificates that cover a two month period.
271.I am currently working a total of one hour on the BCS, performing 20 minutes each in the driving and two stacker roles. These duties are being done to the best extent possible within my certified restrictions, as indicated in the doctors certificates.
272.When I have finished an hour on the BCS I will move to the MMF for hand sorting.
273.I perform the hand sorting for one hour also.
274.I do not find the hand sorting particularly difficult with my restrictions because I can adjust the height of the chair when sitting in front of the frame.
275.I continue to perform my modified duties at work.
276.My current certificate for my right shoulder covers me from 24 February 2016 until 23 May 2016. Dr Kain has certified that I am able to rotate hourly between the BCS and hand sorting duties, all duties must be below shoulder height and I am able to work on the MLOCR but only the lower trays.
277.My current certificate for my left shoulder covers the same period and provides the same restrictions.
278.I am working 7.21 hours per day, five days a week on the day shift. I am not working any overtime and none has been provided.
279.I continue to take my Panadol Osteo or Nurofen two tablets, two to three times every working day. Usually that is taking tablets in the morning, at lunch time and at night. If the pain and symptoms are worse after a big week of work, I will also take this medication on the weekend.
280.I use the Voltaren rub on both shoulders each morning before work and each night when I come home from work. My husband has to apply the Voltaren cream on for me. On occasion, I will also use the medication on the weekend.
281.I perform home exercises with the Thera-Band every day, when possible, at my own pace.
282.I continue to work my base hours only of 7.21 per day and perform no overtime.
283.My symptoms have never resolved and I have required a variety of modified duties since my initial left shoulder injury.
284.I have been advised my window of opportunity for surgery has passed and my current symptoms and restrictions are now permanent.
285.I experience pain in both shoulders, which I would describe as fairly constant. It is certainly more noticeable during the working week.
286.Occasionally I get cramping in both upper arms (more so on my right side) down to my elbows and sometimes into my fingers.
287.My shoulder symptoms are beginning to affect my neck by the end of each day. I have been noticing pain around the back of my neck more recently as well.
288.My pain and symptoms vary slightly from day to day but generally they are worse at the end of the working day. If it has been a busy week my symptoms are usually worse by the weekend.
289.Actions at or above shoulder/head height usually cause me pain in the top of my shoulder joints.
290.I continue to have difficulties with a range of tasks both at work and at home for example, I continue to have difficulties with getting dressed, particularly doing up zips and my bra, my husband often has to assist me with this.
291.I remain careful with lifting anything heavy, for example I avoid lifting anything where possible that weighs more than about 10kg.
292.I am unable to perform many cleaning jobs around the house and my husband is required to perform these tasks. For example, cleaning the shower, hanging out the laundry, making the bed and general cleaning, I avoid.
293.I thoroughly enjoy my job at Australia Post however I am concerned that I would not be able to keep up if I was required to perform my role without any restrictions.
294.I am also worried my injuries will worsen if I was no longer able to work within my restrictions.
Statement of W Jones – OH&S Support Officer, dated 12 August 2010 (T3 at 32)

This statement relates to Mrs D’Lima’s claimed left shoulder injury of 28 July. It reads as follows:
Rosemarie D’Lima was rostered on the 8pm F/T shift on Wednesday 28th July 2010 between the hours of 6.00pm and 1.51am. There was a delay in completing this investigation due to Rosemarie being on recreation leave.
Rosemarie states that at approx 7.15pm on Wednesday 28th July she experienced sharp pain in her left shoulder as she was feeding mail on the BCS4 machine.
Rosemarie states that she was rostered to [sic] in the M&M area between 6.00pm and 7.00pm however her team were short of staff so she was asked to go on the MLOCRs. She worked on the MLOCR performing her normal duties and rotated through all the positions.
Rosemarie states that she always follows the correct Safe Operating Procedures when working on the machines and also tries to alternate using both hands when stacking.
Rosemarie states that when she rotated the tray to tip the mail onto the feed conveyor she felt a sharp pain in her left shoulder. She says it felt like a popping feeling. At first she thought nothing about it but as time went by the pain increased.
Rosemarie states that it was a very busy night on the machines and that there were a lot of heavy trays so her team for [sic] rotating every 15mins instead of every 20mins. The tray that she was feeding up at the time she felt the pain was heavy.
Rosemarie states that she has not felt pain like this in her shoulder before. She says that she has had aching shoulders before but not pain like this.
Rosemarie states that she cannot perform her exercises before coming to work now because of her shoulder.
When asked what exercises she performed she said “taking my dog for a walk and I do weights”.
Rosemarie was asked if she goes to a gym and she answered “No I have weights at home and I usually exercise before l come to work”.
Extract from Incident Form dated 12 August 2010 (T6 at 38)
This document also relates to Mrs D’Lima’s claimed left shoulder injury. An extract from that document reads as follows:
3         Incident Details
3.1      Summarise in a few words what happened
While working on MLOCR(4) felt a sharp pain on my shoulder after tipping
3.2      Provide a detailed description of what happened
Around 7.15 pm while working on MLOCR 4 performing my normal duties my shoulder starting hurting after tipping the mail. At the same time I was following the safe operating procedures.
3.3 What was the exact work process undertaken at the time of the incident, where appropriate?
I was tipping the mail.
Mrs D’Lima’s Claim for Rehabilitation and Compensation dated 19 August 2010 (T10 at 47)
On 19 August 2010, Mrs D’Lima submitted a claim for rehabilitation and compensation in respect of a “sore left shoulder”. She writes that she was injured at 7:15 pm on 28 July 2010.
The Tribunal notes that at the back of that claim is what appears to be a file note dated 20 August 2010 that reads:
Additional statement:
Claim not supported as there does not appear to be sufficient evidence to establish a causal relationship between work activities and injury. Activity associated with rotating and tipping a tray is one that takes place several thousand times each day at PMC and is of low impact.
P400 investigation indicates that Ms D’Lima performs weight lifting a home prior to attending for duty and has experienced shoulder soreness before.
Internal email from Claims Management Officer, David Howard, in relation to Mrs D’Lima’s claim for compensation (left shoulder) dated 31 August 2010 (T13 at 52)
This email reads as follows:
I note in the report from Wayne Jones that Ms D’Lima does weights at home, and that as a result of this Richard does not support the claim. To assist in the determination of Ms D’Lima’s [sic] can you please obtain answers to the following questions from Ms D’Lima.
·     How often did/does she do the weights at home?
·     How long does she do weights for?
·     What exercises she undertakes with the weights?
·     What weight is she using whilst doing any of the exercises, if this changes please specify how and in doing what exercises?
In relation to walking the dog:
·     What type of dog? If not a specific breed, how big is the dog?
·     How often?
·     Does it pull on the lead as it is being walked?
In relation to aching shoulders before:
·     When has she felt this aching in the past?
·     What types of activities was she undertaking prior to noticing the aching in the past?
·     Can she describe how the pain is different?
Answers from Mrs D’Lima in relation to David Howard’s questions, dated 2 September 2010 (T13 at 53)
In response to the questions put to her (above), Mrs D’Lima responded as follows:
Question one: Rosemarie does weights almost every night and has done so for more than 5 years.
Question two: Rosemarie does these weights for 10 mins both arms together.
Question three: Rosemarie does a forward upwards motion from waist to shoulder or a downwards motion from waist to leg. The dumbbells are each 5kg.
Question four: Rosemarie also has an abtrimmer that she uses in the afternoon (not always at the same time i.e. not always straight before or after the weights) that she uses for 10 mins and this has no weights. This is a frame that has no weights and assists with doing sit ups.
Rosemarie does not do any exercise if feeling unwell and since reporting the incident is only doing the exercises that the physio provides (rubber band).
Rosemarie has a Doberman. He is 3 years old and approx one meter tall. He is walked twice a week. No, he is a calm and quiet dog.
Aching shoulders:
Rosemarie states that she has never felt this pain in the past but for the first time on the Feeder on the MLOCR.
Rosemarie goes from BCS to MLOCR and then to BCS.
Rosemarie first felt the pain on the MLOCR feeder and now on the BCS but not as bad.
Rosemarie states that it is worse when she is sleeping.
The pain is a nagging pain but is also sharp and worse at night whilst sleeping and wakes Rosemarie up.
At work it was originally a sharp pain but as Rosemarie is not using her left shoulder as much it is now more of a nagging pain at work.
The Physio says the muscle is very tight and physio is needed to loosen the muscles.
Mrs D’Lima’s Claim for Rehabilitation and Compensation (in relation to right shoulder) dated 27 June 2012
On 27 June 2012, Mrs D’Lima made a second claim for rehabilitation and compensation. This was in respect of a complaint affecting her “shoulder right”. She claimed that she was injured at 11:45 pm on 25 June 2012.
Incident report dated 25 June 2012 (T3 at 21)
The circumstances regarding Mrs D’Lima’s right shoulder injury were summarised in an incident report prepared by Les Jones of Australia Post. The report provides as follows:
1.2      Incident Description
During the investigation, Rosemarie stated that, while performing her duties at the feeder position processing sequencing mail on one of the MLOCR's, she felt discomfort in her right shoulder. Rosemarie also stated the tray she was carrying might have been heavy but not very sure. MRS D'Lima reported this incident to me but I directed her to the MPC4 on duty (Julie Gardin) to complete the initial incident report “as I was very busy on the operational floor. Rosemarie filled in the form and then she was directed by Julie Gardin to sit in the MMF process area. MRS D'Lima told me that, she was following safe operating procedures before this incident occurred. Rosemarie, did not receive first aid for this incident but, did see the Facility Nominated Doctor and eventually the specialist “she told me. Rosemarie told me that, her injury is not getting better and she still in consultation with her Medical Professions for the final outcome. [sic]
...
·Ask Rose to describe how she was performing the task that contributed to the pain?
1)At the time of the incident Rose was operating on the ML while the team was doing B plan sequencing run. This task is performed by three mail officers: two stacking and one feeding the mail onto the belt which Rose was doing.
She took the tray out of the uld, which at the time had the gate off. She moved her feet & body to get the tray, which was ok, not heavy or was the full off mail. She moved her feet and body back and fed mail onto belt. She holds the tray with both hands and flips the tray of mail onto belt. Slid the paddle back to support mail, with her right shoulder.
She felt a pull in her right shoulder, the pain was sharp, she did not report pain to anyone immediately. After her 20 min period on the feeding, she moved onto stacking position. She performed this task a fraction slow as her shoulder was sore. She did favour her right shoulder while performing tasks, as she has had previous injury to her left shoulder. She performed the duty and the sat down and sorted mail. Later in the shift she reported incident to her supervisor M. Maiki.
·     Rose states that she was following the correct SOPs but we need to know what her interpretation is of the SOP? Ask Rose to step you through exactly how she performed the task?
·     Rose states that she was at the feeder position processing sequencing mail on the MLOCR when she felt the discomfort in her right shoulder. What was she doing at the time? For example, was she lifting mail from the tray or was she transferring a tray to the feeder bed?
2 & 3)      Following SOP’S: When goes to take mail out of the uld she moves her feet to the uld,(which had the gate off) grabs the tray with both hands moves her feet back towards the feeding table. She says she try’s [sic] not to twist and turn too much. She places tray on belt and then flips mail onto belt, by grabbing the tray with both hands. She repeats the motion every time she puts mail onto belt. She then places empty tray into uld, again moving her feet and whole body. She was feeding the mail onto the belt, taking mail/ tray out of the uld, feeding the belt, sliding paddle behind mail and then placing empty tray into uld. After that task went to next task, stacking on the machine.
·     Rose mentions in her Incident Report that she already has a long term injury to her left shoulder. Ask Rose if she is using her left arm at all or is she trying to perform her tasks using her right hand only?
4)Rose does favour her right shoulder while performing her duties, as she has hurt her left shoulder previously. When she does experience some discomfort she does report it to M Maiki, then supervisor alters her duties by getting her to sit down and sort mail.
·     How long had Rose been rostered on the machine?
5)Rose was rostered on the machine for one hour, during the night she follows her RTW program. Where she does ml (1 hr) bcs (1 hr) & sitting. She does not go out of her RTW sheet.
·     Had Rose performed stretching exercises and warm ups during the night?
6)She does perform stretching exercises: when she is on the machine, during her time on the machine and when she is even in the m&m area. At the start and during her shift. For example:
-Places her right hand under her neck and with the opposite hand grasp near her elbow and pulls her hand, stretching her shoulder area.
-Pulls her fingers back with the other hands
-Moves her shoulders in a circular motion
-Relaxes her arms by hanging them down and slowly shakes them, releasing the latic [sic] acid building up.
-Stretches her legs and calf by leaning against the machine.
I had Rose physically show me how she did these exercises.
·Had you requested your staff to perform stretches and warm ups?
7)At the TOOL BOX talk Mike does remind staff to perform stretching exercises during their duties.
·When was the last SOFP that you performed on Rose performing this task?
8)Mike has performed a SOFP on Rosie, but can not recall what duties she was doing at the time of the sofp.
·Has Rose been involved in any other physical work during the shift or outside of work?
9)On the night Rose had been following her RTW, it was a busy night. She does normal house duties, but nothing too physical. She does cooking and her boys and husband do all physical jobs.
·What task had Rose been performing immediately prior to commencing working on the machine?
10)At the time of the question she could not remember, but says that she would have been on a bcs and molcr during the night and have some time sorting, as per RTW.
·Had Rose mentioned any soreness or injury earlier on?
11)She has reported soreness in her left shoulder previously, but on the night of the incident nothing to report earlier in the night.
My findings is [sic] that injury sustained is that she has been favouring/over compensating this shoulder for some time while performing her duties, as her left shoulder has been injured before.
…
1.4      Time Line (including events leading up)
Rosemarie's shift hours are from 18:00:00-0151:00 [sic] ... she was performing her normal duties before this incident occurred.
2.0      KEY FINDINGS
2.1      Direct Cause
Why did the incident occur?
Rose had been favouring her previous left shoulder injury and may have been over compensating for this previous injury.
2.2      Root Causes
Contributors to the incident
People/behaviour
Physical capability - previous injury to left shoulder
…
MEDICAL EVIDENCE
The Tribunal had before it a considerable amount of medical evidence.
Legal representatives for Mrs D’Lima relied on the medical expertise of:
i.Dr R Kain, a general practitioner who has seen Mrs D’Lima’s since July 2010. Dr Kain was called as a witness before this Tribunal;
ii.Mr H Goonatillake, Orthopaedic Surgeon. Mr Goonatillake was not called as a witness before this Tribunal.
Legal representatives for Australia Post relied on the medical expertise of:
i.Mr M Alexeef, Orthopaedic Surgeon. Mr Alexeef was called as witness before this Tribunal.
ii.Mr A Cairns, Orthopaedic Surgeon. Mr Cairns was not called as a witness.
iii.Mr F Phillips, Orthopaedic Surgeon. Mr Cairns was not called as a witness.
The Tribunal also received and reviewed numerous medical certificates and clinical notes from Mrs D’Lima’s treating practitioners from the date of her first claimed injury.
The Tribunal highlights relevant medical evidence below.
Ultrasound Report, Dr Arockia Doss, radiologist, dated 25 October 2010 in relation to left shoulder (T16 at 61)
On 22 October 2010, radiographical and ultrasound images were taken of Mrs D’Lima’s left shoulder. The report reads as follows:
HISTORY: Work-related injury July 2010. ? biceps tendinitis or impingement.
FINDINGS: Glenohumeral and acromioclavicular joint alignment are normal.
There is a Type II anterior/inferior acromion with marginal features that may predispose to impingement into the supraspinatus outlet.
The long head of biceps tendon is intact and enlocated and there is no evidence to suggest biceps tendinitis.
Insertional enthesopathic changes with low grade, partial thickness tearing of the subscapularis tendon are shown.
Tendinosis and full thickness tearing of the anterior to mid supraspinatus tendon with medial to lateral extension of 8mm and AP extent of approximately 16mm is present. There is associated subacromial bursal effusion and bursitis. The infraspinatus appears normal.
Small, reactive glenohumeral effusion is noted.
COMMENT:
1         No evidence of biceps tendinosis.
2         Full thickness, partial width tear of supraspinatus.
3         Small, partial thickness tear of subscapularis.
4         Subacromial bursitis and effusion.
Report of Dr Aroicka Doss dated 1 November 2010 (T18, p 63)
Dr Doss undertook magnetic resonance imaging on 28 October 2010. Her report reads as follows:
MRI LEFT SHOULDER:
HISTORY: Work related injury.
Technique: Fluid sensitive and fat supressed sequences, axial T2 gradient cartilage sequence.
FINDINGS: The acromion is downward laterally tilted and somewhat low set. There is a 2mm anterior inferior acromion enthesopathic spur at the attachment of the CA ligament. A slightly prominent AC joint capsule with subchondral cystic change of the distal clavicle. Moderate to severe subacromial bursitis of the subacromial, subdeltoid space also extends into the subcoracoid recess.
There is extensive altered signal of the insertional fibres of the anterior through to posterior supraspinatus tendon with insertional enthesopathic changes and full thickness partial width tearing in AP extent of approximately 14mm and medial to lateral extent of 8mm. At the posterior interval there is an articular side 3mm (AP) x 7mm (medial to lateral) hyperintensity suspicious for a partial thickness tear. There is insubstance hyperintensity of the superior fibres of the distal musculotendinous unit/pre insertional fibres of the infraspinatus for approximate medial to lateral extent of 14mm. There is subscapularis hyperintensity of the deep fibres reflecting moderate tendinosis and low grade tearing. No evidence of biceps tenosynovitis or subluxation. No convincing evidence of a slap lesion. The anterior and posterior labrum are intact. There is no evidence of high grade articular cartilage abnormality of the glenohumeral joint. No evidence to suggest capsulitis.
No evidence of paraglenoid masses.
There is mild atrophy of the subscapularis and the infraspinatus and moderate atrophy of the supraspinatus muscle. No fracture or dislocation.
COMMENT:
1.Subacromial bursitis.
2.Insertional enthesopathic changes of the supraspinatus and infraspinatus with full thickness partial width tearing of the supraspinatus. Moderate supraspinatus muscle atrophy.
3.Low grade partial thickness tearing of the infraspinatus and subscapularis but no high grade retraction of fibres.
Report of Mr Hari Goonatillake, Orthopaedic Surgeon, dated 16 November 2010 (T21 at 71)
Mrs D’Lima saw Mr Goonatillake in November 2010 at the request of her GP, Dr Kain. Mr Goonatillake’s report to Dr Kain relates to Mrs D’Lima’s left shoulder and reads as follows:
Thank you for asking me to see Mrs D’Lima who is a 58-year old right-handed mailing officer who presents following a left shoulder injury she sustained at work in July of this year whilst working on a machine. She had sudden onset of pain which has now all but settled. She tells me that she is able to continue with most of her activities but does have significant pain at night.
On examination today, she was somewhat tender over her rotator cuff. Flexion was 160° with external rotation being 45°. Impingement signs were all positive albeit mildly.
An MRI scan, as you know, reveals a full-thickness rotator cuff tear.
I had a discussion with her today regarding treatment options including surgical correction of her rotator cuff tear. She feels that her symptoms are not bad enough to warrant intervention at the present time and as such, will continue with conservative treatment. She does understand that a repair gets technically harder with time and that it may progress to a state of being unrepairable.
Radiographic Imaging Report, Dr Vincent Low, dated 31 July 2012 (T7)
On 31 July 2012, a radiographic image was taken of Mrs D’Lima’s right shoulder. Dr Vincent Low (radiologist) noted the following:
The glenohumeral joint appears appropriately aligned with no evidence of subluxation or injury. Slightly irregular articular glenoid cortex, suggesting mild osteoarthritic involvement.
Acromioclavicular joint shows slight incongruity which may represent mild ligamentous laxity or capsular distension. No evidence of fracture.
Acromion is of Type II. Slight cortical irregularity suggests rotator cuff enthesopathic changes. No subacromial calcification.
The remainder of the non-articular clavicle, scapula and proximal humerus appears normal.
Ultrasound Imaging Report, Dr Dillon, dated 31 July 2013 (T8)
On 31 July 2012, an ultrasound image was taken of Mrs D’Lima’s right shoulder. The report provides the following information:
FINDINGS: There is a full width, full thickness tear of the supraspinatus tendon with retraction of the tendon fibres which are separated by more than 21mm. The remaining tendon ends appear tendinopathic.
The biceps tendon is intact, but tendinopathic. There is some attrition of this tendon. There is no effusion seen in the biceps tendon sheath.
The subscapularis tendon is tendinopathic. The infraspinatus tendon is also tendinopathic.
There is no joint effusion seen.
There is no paralabral cyst.
There is fluid in the subscapularis bursa and there is also a subacromial bursitis. There is associated impingement on abduction.
There are degenerative changes at the acromioclavicular joint and there is bony irregularity of the humeral head.
CONCLUSION: Diffuse tendinopathy of the rotator cuff with an associated full thickness tear of the supraspinatus tendon with retraction of the tendon ends. There is an associated, advanced subacromial bursitis.
Report of Mr Goonatillake dated 21 September 2012 relating to right shoulder injury (T17 at 45)

On 7 September 2012, Australia Post asked Mr Goonatillake to prepare a report based on his examination of 13 August 2012 and the ultrasound conducted on 31 July 2012 (T15). Mr Goonatillake provided the following information in relation to that request:
Please note that Ms Rosemarie D’LIMA was seen for assessment and treatment of an orthopaedic problem. She was not seen for the purposes of providing a medico-legal report. I would suggest that she be reviewed by a practitioner who specialises in medico-legal reporting to assess the medico-legal aspects of this case.
Ms Rosemary D'Lima was seen on this occasion on 13 August 2012, having previously been seen on 16 November 2010 for left shoulder pain. She was seen on this occasion for right shoulder problems.
She was seen on 13 August 2012, when it was noted that she was a 59-year-old right-handed lady, who presented with right shoulder pain since 25 July 2012, when she developed pain whilst working on machines at work. She had difficulty with elevation, as well as pain at night if she lay on her side.
On examination she was tender over her rotator cuff. Active flexion was 160° with a painful arc in the midrange, external rotation was 40°. Impingement signs were positive. Ultrasound performed prior to being seen confirmed a full-thickness rotator cuff tear.
It was suggested that her symptoms be addressed with an acromioplasty and rotator cuff repair, however, Mrs D'Lima opted for ongoing conservative care. She was instructed of the risks that the tear would likely progress and ran the risk of becoming unrepairable in the future if left inappropriately treated.
In answer to your specific questions:
A)        Please detail the history of the employee's condition as reported to you.
This is detailed above.
B)From what specific condition does the employee currently suffer as a result of the incident on 25/06/2012? Please provide a short description of the condition, including its known aetiology and progression.
She suffers from a rotator cuff tear with associated pain and restrictions.
C)Any clear right shoulder condition/pathology as shown in the ultrasound, that is unlikely to be related to lifting mail out of the work tray on 25/06/2012?
Ultrasound confirms a full-thickness rotator cuff tear.
D)On the balance of probabilities, as distinct from possibilities, is the condition currently suffered by the employee related to:
a)Her employment as a Mail Officer? If so, please explain how.
b)A pre-existing, congenital, constitutional or underlying condition?
c)The natural progression of an underlying condition.
d)Other health issues?
e)Some other aspect of the employee's employment (if so, please describe the factor and explain how it contributes to the condition)?
f)Factors unrelated to work, i.e. recreational, leisure or home activities,
g)Underlying degeneration as part of the natural ageing process.
It is likely that her condition is related to her employment. See responses to questions above and the report detailed above.
E)        Your inconsistent findings on examination.
There are no inconsistent findings on examination.
F)        Please outline the workers restrictions on a full-time basis in relation to -
a)        Lifting and carrying
b)        Pushing and pulling
c)        Grasping forcefully
d)        Working above shoulder height
e)        Climbing ladders and stairs
I would suggest she be reviewed by an occupational health physician to assess her work capacity.
G)       What is the prognosis for the work-related condition?
Her prognosis, if not treated appropriately, is guarded.
H)Your recommendations regarding future treatment, in particular relating to the reasonable frequency requirement of physiotherapy treatment.
Further treatment by way of an acromioplasty and rotator cuff repair has been recommended.
I)If there are any other factors which you feel are relevant and have not been addressed in the list of questions, please provide additional comments.
If further medico-legal issues are of concern, I would suggest she be reviewed by a practitioner who specialises in medico-legal reporting.
Report of Dr Saumya Jayabahu dated 18 October 2013 (T19 at 61)
This report relates to Mrs D’Lima’s right shoulder and reports as follows:
HISTORY: Patient cannot abduct her right shoulder. ? supraspinatus tear.
FINDINGS: The right glenohumeral joint alignment is maintained.
The acromion is of type II morphology with undersurface bony spur reducing the subacromial outlet dimension. The greater tuberosity demonstrates marked cortical irregularity. No rotator cuff calcification is evident.
The acromioclavicular joint demonstrates minor degenerative changes. Bone mineralisation is normal.
Report of Dr Saumya Jayabahu dated 18 October 2013 (PT19 at 62)
This report, also in relation to Mrs D’Lima’s right shoulder, provides:
HISTORY: Patient cannot abduct her right shoulder.
? supraspinatus tear.
FINDINGS: The biceps tendon is heterogeneous with thickened fibres, representing bicipital tendinosis.
There is no tendon sheath effusion.
The subscapularis tendon is heterogeneous with evidence of tendinosis.
There is a full width, full thickness tear of the supraspinatus tendon.
The infraspinatus tendon demonstrates evidence of tendinosis.
There is no tear identified.
The subacromial bursa is thickened.
There is no significant fluid accumulation shown.
CONCLUSION: Rotator cuff tendinosis with a full thickness, full width tear of the supraspinatus tendon.
Report of Dr Goonatillake dated 4 February 2014 (T23 at 69)
On 4 February, Mr Goonatillake reported to Dr Liz Azzam (General Practitioner) (and colleague of Dr Kain) in relation to Mrs D’Lima’s right shoulder as follows:
Thank you for asking me to see Ms D'Lima, who is now 61 years old. She presents with ongoing right shoulder pain and difficulty with overhead activities. I did see her in August 2012, when she had right shoulder pain whilst working on machines with subsequent ultrasound revealing a rotator cuff tear. She deferred intervention at that time.
On examination today she was tender over her AC joint as well as her rotator cuff. Active flexion was 160°, external rotation 45°. Impingement signs were all positive. An MRI scan confirms a full thickness rotator cuff tear with some retraction and associated muscle atrophy.
Given her ongoing symptoms I would suggest proceeding with an arthroscopic acromioplasty, lateral clavicle excision and rotator cuff repair. She will go ahead with this in due course. I will keep you informed of her progress.
Report of Dr Cairns dated 26 March 2014 (T27 at 75)
On 7 March 2014, Mrs D’Lima reported to Orthopaedic Surgeon Anthony Cairns at the request of Australia Post.
Mr Cairns provides the following relevant information in relation to Mrs D’Lima’s right shoulder:
Occupation/Work Duties:
Rosemarie D'Lima advised that she completed Year 10 level secondary education in her native India and left school at age 16 years. She subsequently completed training as a teacher, in which occupation she worked over the ensuing 25 years. She immigrated to Australia in 1992, worked as a cleaner at Princess Margaret Hospital for a year, housekeeper with Parmelia Hotel for 14 years before commencing employment as a postal officer with Australia Post in 2007, initially casual, then part-time, and ultimately full-time.
At the time of onset of symptoms in her right shoulder in about mid 2010, she describes her activities as varied on a rotational basis with requirement to lift and tip bags of mail weighing up to 15kg on to a moving belt, sorting mail items, handling mail at a machine, sorting activities handling and turning, sorting the mail on the moving conveyor belt, stamping and sorting mail, all performed on about 20-minute rotations between workstations, and mostly undertaken below shoulder level, at one particular station at least involving some placement of items to about head level. At the time of onset of symptoms she was thus employed for 37.5 hours per week.
Illness/Symptoms Onset Subsequent Course/Progression:
Rosemarie D'Lima reported that at an unspecified time in about mid 2010, she experienced the spontaneous onset of pain in her right shoulder, with some aggravation related to her work activities which she reported at the time. She was referred to the company medical officer.
Initial/Early Treatment Received:
Following assessment by the company medical officer she was referred to physiotherapy and given remedial exercises, employing Panadol Osteo medication and local application of Voltaren Gel, and was placed on restricted duties at that time.
Thereafter, there was ongoing variation in level of symptoms depending upon activities undertaken, generally a slow, slight improvement if anything.
Symptoms persisted more or less over the ensuing two years until on or about 25 June 2012 when she attempted to pull a tray, experiencing a “sound”, followed by the onset of pain in her right shoulder.
This incident was also reported, and she was directed to attend the company medical officer. She states that she was referred for x-ray and scans, after which she was placed on restricted duties and referred to physiotherapy, including performance of appropriate exercises. This resulted in slight improvement only, and at review by Dr Azzam, Rosemarie was referred for MRI scan of the right shoulder, performed on 20 January 2014.
Subsequent Progress/Specialist Management:
She was then referred to Dr Goonatillake, Orthopaedic Surgeon, whom she had previously consulted in August 2012 following the original onset of right shoulder symptoms. Dr Goonatillake has advised Ms D'Lima to consider arthroscopic surgery (letter 4 February 2014), to which advice Ms D'Lima indicates that she is giving serious consideration.
Current Status:
She is of the view that the functional status of her right shoulder is not changing with the passage of time. Providing she avoids identified potentially provocative activities, she is coping reasonably satisfactorily despite ongoing painful restriction of movement.
She describes pain about the deltoid area of her shoulder, more or less constant, but slightly increased by movements thereof. She was unable to be clear as to whether there is any associated restriction of movement.
She confirms that she has experienced the spontaneous onset of similar, though lesser symptoms in her left shoulder.
Present Work Status:
Rosemarie confirms that she is working full-time with proscribed restrictions of lifting no more than 5kg, activities to be confined to below shoulder level, no requirement to operate machines, or any requirement to pull or push objects.
Present Activities:
She is able to attend to the requirements of personal grooming and hygiene without assistance. She does not drive a motor vehicle. Food preparation and kitchen cooking activities are somewhat restricted in that she has difficulty handling the heavier utensils, requiring assistance from her husband. She is also restricted in the performance of domestic duties, requiring assistance from her children. She is able to place clothing in a washing machine, but wet articles are removed and carried and hung on the line by her husband because of her shoulder impairment. She is not customarily required to iron. Although she participates in grocery shopping excursions, participation is minimal, largely undertaken by her husband, although she is able to operate the shopping trolley if it is lightly laden. She is not customarily required to garden, mow lawns, or place a wheelie garbage bin for collection. She reports no specific sport; leisure or hobby activity precluded by her shoulder impairment.
Present Treatment:
She employs the medication Panadol Osteo, two tablets taken two or three times daily, supplemented by local massage with Voltaren Gel. No other active treatment modalities at this time.
Past Medical History:
Apart from treatment for hypertension, she believes that she otherwise seems to be enjoying good health. She gives a past history of cataract surgery and an arthroscopic procedure to her right knee. There were no other significant features in her past medical history, specifically a denial of any previous injury or impairment involving her shoulders, other than as described, nor has she been involved in any subsequent specific incident or accident which may have aggravated the condition under review.
…
PHYSICAL EXAMINATION:
…
Upper Limbs:
At rest in stance there is a slight postural elevation in the left shoulder girdle, Ms D'Lima confirming the location of pain as over the point and deltoid area of the right shoulder, similar on the left.
Passive glenohumeral movement, although resisted, was to 110°, comparable right as to left. She reported tenderness to firm pressure applied to both acromioclavicular joints.
She reported generalised tenderness about the shoulder capsules, more marked on the right than the left, and in relation to the long head of biceps tendons. All movements were undertaken with apprehension, and passive assessment actively resisted, also attributed to apprehension on her part.
Active movements of the right shoulder as compared to left were estimated as to flexion 135°/160° extension 30°/40°, abduction 90°/150°, on the left pain beyond 120°, adduction 30°/30°, external rotation 60°/60° and internal rotation 60°/70°.
Assessment of impingement sign and stress applied to the acromioclavicular joints were actively resisted, apparently due to apprehension.
…
SUMMARY AND ASSESSMENT:
In summary therefore, this 61-year-old postal officer presents with history of spontaneous onset of right shoulder symptoms in about mid 2010, for which she consulted orthopaedic surgeon Dr Goonatillake at that time and declined offered surgical intervention. Symptoms persisted more or less over the ensuing two years, at which time further aggravation, allegedly related to her work activities, prompted re-presentation and re-referral to Dr Goonatillake, who has again recommended consideration of arthroscopic intervention. Ms D'Lima presents with similar spontaneous onset of left shoulder problems, with clinical manifestations of similar, but lesser impairment involving that shoulder as well.
In my opinion, in the absence of any specific, identifiable provocative incident, the pathology involving Ms D'Lima’s shoulders is of age-related, constitutional and degenerative nature, and although the underlying pathology may well have been symptomatically aggravated by her work-related activities, in my opinion it was not caused thereby.
Therefore, in response to the specific questions raised within your referral letter of 17 February 2014, I have the following answers to offer.
1.What medial [sic] history is given by Mrs D’Lima, and the specific cause of the initial injury on 25/06/2012 when lifting mail out of a tray?
The medical history provided by Ms D'Lima is as described within the foregoing report at “Illness/Symptoms Onset, Subsequent Course/Progression”, “Initial/Early Treatment Received”, “Subsequent Progress/Specialist Management” and “Current Status”.
The worker reports no specific incident of 25 June 2012, report of shoulder impairment at that stage being of spontaneous onset of symptoms of rotator cuff pathology, allegedly symptomatically aggravated by her work-related activities.
2. What are your findings on examination?
My findings on examination are as described within the foregoing report at “Physical Examination”.
3.The ultrasound in July 2012 indicated a full thickness tear that had separated by 21mm. Is it possible that an injury of this nature could occur whilst flipping a tray of mail?
In my opinion, the pathology demonstrated by the investigations in July 2012 was that of age-related constitutional, degenerative and attritional aetiology, of spontaneous onset symptomatically, in the absence of any specific reported provocative incident. Based on the history provided by the claimant, although the activity of “flipping a tray of mail” in July 2012 may have symptomatically provoked the underlying pathology, in my opinion, it is unlikely to have been the cause thereof.
4.We note evidence of advanced subacromial bursitis? Are her current symptoms to the shoulder more likely to be related to degeneration that would have occurred despite the employment?
In my opinion, the worker’s causative pathologies of her current shoulder symptoms are more likely related to underlying constitutional, degenerative and attritional changes involving the structures of her shoulder joints.
5.Do you believe her current symptoms/conditions are significantly related to lifestyle, recreational, home or leisure activities?
I do not believe that her current symptoms/conditions are significantly related to lifestyle, recreational, home or leisure activities, rather due to normal ageing, constitutional and attritional pathology occurring within her shoulders.
6.Do you believe the treatment proposed by Mr Goonatillake is appropriate at this stage bearing in mind the workers age and that to this point she has been able to cope with full hours on restricted duties?
While from a technical perspective the treatment proposed by Mr Goonatillake may be reasonable, I would harbour significant reservations regarding the likely functional outcome of the procedures, regardless of the technical success or otherwise.
7.What other treatment, if any, is indicated? If specific treatment is to continue, what is the reasonable frequency requirement of such treatments?
An alternative to operative intervention would be local corticosteroid injections to the glenohumeral joint, subacromial bursa, and acromioclavicular joint.
Other than operative intervention and the injections as suggested, treatment options are ongoing self-supervised mobilising and strengthening exercises, together with exhibition of tolerated oral non-steroidal anti-inflammatory and analgesic medication.
8.Can you please clarify your views regarding the workers current capacity for work as well as any specific restrictions that you would impose?
The worker advises that she is currently attending work full-time with proscribed restrictions as described, which are appropriate and permanent.
9. What is your prognosis?
Prognosis:
Without treatment, the prognosis is for ongoing impairment.
Conservative treatment measures may result in some indeterminate improvement in function, but not likely withdrawal of the proscribed restrictions currently in place.
Should she elect to undergo the surgery proposed by Dr Goonatillake, I would consider the prognosis to be indefinite.
Report from Dr Goonatillake to Dr Azzam dated 24 April 2014 (T30 at 87)
This report, which relates to Mrs D’Lima’s right shoulder, reads as follows:
I reviewed Mrs D'Lima today who was initially scheduled for surgery in February 2014, however, this was deferred due to her insurance company not approving her surgery. She is now being sent back by the claims manager, Matthew McDowall, who has requested that Mrs D'Lima obtain my opinion rather than requesting it directly from me, which is the usual course of events. I will send a copy of my report from 4 February 2014 as well as 13 August 2013 on to them, although I have told Mrs D'Lima that the usual course of events is that the claims manager would request a report from me.
She continues to be troubled due to a rotator cuff tear, which hopefully is still repairable although the longer this is left untreated the more difficult the repair will be and potentially can become unrepairable.
Report of Mr Phillips dated 27 May 2015 (T59 at 160)
On 20 May 2015, Mr Phillips, Orthopaedic Surgeon, examined Mrs D’Lima at the request of Australia Post (T55) in relation to Mrs D’Lima's left shoulder. His report reads, relevantly, as follows:
HISTORY:
Occupation/Work Duties:
Ms D'Lima was born in India (Bangalore). She completed schooling and went on to teaching which she continued for 18 years until moving to Australia in 1991.
She worked briefly cleaning at Princess Margaret Hospital and then worked at the Parmelia Hilton, housekeeping for about 14 years.
Ms D’Lima has been working for Australia Post now in her 8th year. She continues to work full-time using a machine one hour on and then one hour off hand sorting.
She is allowed to work at her own pace.
Mechanism of Alleged Injury/Sequence of Events:
Ms D'Lima’s recall was vague and her history giving tended to be somewhat confusing.
I tried my best to understand what the physical requirements there were for her working on machines.
Ms D'Lima stated that on 25 July 2010 she was working nights on an MLOC machine. She had to take mail and put it on to a belt and then pull out stackers.
Ms D'Lima stated that on one occasion when she flipped a tray she felt a pain in her left shoulder. She continued working for a while. She reported it.
Initial/Early Treatment Received:
The next day she was able to see a general practitioner.
Ms D'Lima stressed that she never took any time off work.
Investigations were undertaken leading to a referral to specialist/upper limb surgeon Dr Goonatillake.
A full-thickness tear of the rotator cuff was identified and he offered surgery, this was declined (MRI scan 28 October 2010, I will comment on this).
Ms D'Lima stated that she returned to working on the machines full-time with restrictions.
From a symptomatic point of view she stated that her left shoulder has remained much the same. She takes Panadol Osteo, uses Voltaren gel and uses a Thera-Band for exercise. It is not at all clear whether or not there had been any further injury.
She stated that there is nothing new to report in relation to this shoulder.
In 2012 she started to develop similar symptoms in the right shoulder from a similar episode. (You have a report on this from Dr Cairns. Ms D'Lima indicated that she was only asked to bring the results of investigations for the left shoulder in her referral letter).
Current Status:
Left Shoulder:
She describes a slight pain in the region of the shoulder, some tenderness superiorly.
She is aware of the shoulder with any activity and is therefore cautious with its use. She describes the pain is a nagging pain especially after work but it improves with rest. She cannot sleep on her side now (similar problem on the right). She can elevate her arm to just above shoulder height. She has difficulty reaching behind her back for instance for toilet or doing up her bra. She reported no neurological symptoms in the upper limbs.
Present Treatment:
Medications: She takes fish oil.
Present Work Status:
She is working full-time with restrictions working at her own pace, one hour on the machine and one hour off.
Present Activities:
She does not drive (no licence).
She now prepares food more slowly than before. She avoids activity such as vacuuming and some of the laundry in part because she is tired after work. Similarly, although she can do shopping, she avoids carrying bags if she can.
She would not normally work in the garden. She reported no recreational activities. There is no active treatment.
There is no planned specialist referral for the left shoulder (also not for the right).
…
SUMMARY AND ASSESSMENT:
Ms D'Lima reported onset of symptoms in the left shoulder whilst at work.
The MRI scan left shoulder dated 28 October 2010 identifies longstanding changes at the shoulder joint with an associated subacromial bursitis.
In particular insertional enthesopathic changes and supraspinatus muscle atrophy would indicate the changes are longstanding and almost certainly degenerative in nature. The actual tear was full-thickness partial with tearing of the supraspinatus.
The requirement for surgery was not absolute, indeed many people in the second half century of life function perfectly normally with torn rotator cuffs.
I note that a similar condition now exists at the right shoulder with no reported specific incident, 25 June 2012.
In answer to your specific questions:
1.In your opinion from what condition(s) does Ms D’Lima suffer? Please specify exact nature and location of the injury.
In my opinion the condition is one of age related degenerative rotator cuff disease with a full-thickness tear with retraction and almost certainly now secondary bony changes.
The location is the left shoulder joint.
2.On the balance of probabilities, as distinct from possibilities, is the condition currently suffered by the employee related to:
a.The claimant’s employment with Australia Post, or
b.Factors unrelated to work?
c.A pre-existing, congenital, constitutional or under-lying condition, or
d.The natural progression of an underlying condition, or
e.Other health issues, or
f.Some other aspect of the employee’s employment, if so, please describe the factor and explain how it contributes to the condition, or
g.Underlying degeneration as part of the natural aging process
(If you consider the injury to be work related please explain your rationale and also when you believe the injury occurred).
The condition is not related to employment with Australia Post. It is an age-related condition. The progress to date is natural progression of the underlying condition.
The shoulder became symptomatic at work. It may have become symptomatic at anytime, anywhere.
3.Do you consider the injury(s) or that part of it caused by employment (if any) has now resolved? If not when do you expect the abovementioned component of the injury may resolve?
There is no clear history of an injury, only onset of symptoms. The action described was a normal activity that was not unusual in any way.
4.Taking in consideration only what you consider “work related injury”. What restrictions Australia Post need to consider when preparing a “return to work program” for Ms D’Lima? Do you believe any other work restrictions need to be implemented? Please detail what restrictions need apply and for how long?
In relation to a work related injury there was no work related injury.
A return to work program is not required, as best I understand Ms D'Lima has never taken time off work, she continues full-time duties though working at her own pace to accommodate the underlying condition.
5.Do you consider the worker capable of performing her current duties without further aggravating her condition/s?
I consider that her current duties may on occasion aggravate the underlying condition. This should not however stop her from continuing her current duties.
6.What form of treatment/medication do you believe is required to treat her compensable injury?
In my opinion, there was no compensable injury.
7. What is the prognosis of Ms D’Lima’s condition?
The prognosis for the condition is that she may go on to develop further degenerative change in the shoulder with increasing stiffness.
8. Does Ms D’Lima requires surgery?
Ms D'Lima does not require surgery at this point in time. Aggravation of symptoms may still be managed by a steroid injection if required.
9.Are there any aspect of the examination which tends to suggest that the employee is:
•Voluntarily exaggerating her symptoms
•Consciously guarding restrictions of movements
•Displaying symptoms and examination findings inconsistent with the claimed condition
•Demonstrating a range of movements during your passive observation which were not replicated during clinical examination.
There were no such aspects other than she would not allow me to examine the shoulder passively to assess the joint.
10.Please provide any other information you believe may be relevant to this claim.
The fact that there are similar changes at the right shoulder is consistent with the constitutional nature of the condition.
Report of Dr R Kain, General Practitioner, dated 16 July 2015 (T1 at 21)

As outlined above, the Tribunal must determine whether Mrs D’Lima’s employment with Australia Post contributed to a significant degree to an aggravation of her pre-existing conditions and, if so, the duration of any aggravation and whether it gives rise to liability under s 14 of the Act.
Following Reardon, whether Mrs D’Lima’s conditions were aggravated significantly by her employment with Australia Post requires consideration of what is meant by “contribution to a significant degree”. As outlined above, this has now been settled in law. What is required is that the contribution by employment be substantially more than material.
The Tribunal must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it should not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree is a question of fact to be determined by the Tribunal in each case.
The Tribunal notes in that regard the decision in Su v Comcare, wherein the requirement of contribution to a significant degree was expressed as follows:
When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.
The Tribunal can only rely on the evidence before it. This matter raised a problem that, regrettably, is not uncommon in compensation matters before this Tribunal that require an analysis of the distinction between “disease” and “injury (other than a disease)”. Specifically, it would appear that most of the experts asked to provide evidence in this matter directed their attention to whether Mrs D’Lima sustained an injury (other than a disease), rather than a disease as defined in the statute. This is unfortunate. Once it became apparent that what the Tribunal was actually required to address was in fact a “disease” and, more specifically, an aggravation of an ailment that was contributed to a significant degree by her employer, this left the Tribunal with a great deal of evidence that was largely not directed to the core issue before the Tribunal. Much of the evidence before this Tribunal focussed on whether Mrs D’Lima suffered an injury other than a disease (ie, a sudden physiological change) while at work or whether her ailment was caused by her work environment. To a large extent, once these issues were put aside as not relevant, much of the evidence before this Tribunal ceased to be particularly helpful.
With that in mind, the Tribunal turns its attention to the evidence before it that does assist in determining whether Mrs D’Lima’s ailment was aggravated to a significant degree by her employment with Australia Post.
In relation to Mrs D'Lima's evidence, the Tribunal notes an objection made by Australia Post in relation to Mrs D’Lima’s witness statement in the following terms (as outlined in Closing Written Submissions dated 19 May 2016):
37.On 19 April 2016, the applicant sought to tender a statement that she made on 1 April 2016. The respondent objected to paragraphs 22-108 of the statement on the basis that the matters outlined in the paragraphs described the “nature and conditions” of her employment. The objection was made on the basis of Szabo as outlined in paragraph 6 above. It was decided that the objection would be dealt with in the parties' closing submissions. The respondent presses its objection.
38.The matters outlined in paragraphs 22-108 of the applicant's statement describe the “nature and conditions” of her employment. There is a clear delineation between those matters and the claims that she made on 19 August 2010 and on or around 25 June 2012, as outlined in paragraphs 17 and 18 above. The applicant has not in truth made a claim for an injury or disease arising from the “nature and conditions” of her employment. Nor has such a claim been determined by the respondent, and advanced to the Tribunal on application for review. Accordingly, the Tribunal does not have jurisdiction to entertain such a claim. It thus would not be appropriate to take into account paragraphs 22-108 of the applicant's statement in determining whether she ever suffered an “injury” for compensation purposes.
Paragraph 6, to which Australia Post, refers above reads as follows:
… the scope of the Tribunal's review power is not unlimited. In considering whether the applicant ever suffered a compensable injury in the present case, the jurisdiction of the Tribunal does not extend to considering a claim that has not been made or determined by the respondent. Authority for this proposition includes Szabo v Comcare (2012) 58 AAR 152 (Emmett, Bennett and Greenwood JJ). Mr Szabo had claimed that he had suffered a strain of his lower back at 9:50 am on 20 June 1989. Mr Szabo claimed that the alleged injury happened because of constant bending and lifting (including continuous lifting of lamb shanks) in his employment by the Commonwealth. Mr Szabo contended that the Tribunal had power to consider a claim based on the “nature and conditions” his [sic] employment. The Full Court of the Federal Court of Australia disagreed. It held that Mr Szabo’s claim did not amount to a claim for a disease or injury that was aggravated or contributed to in a material degree by the “nature and conditions” of his employment. The Court added that until such a claim was made, and had been determined by Comcare, there could be no decision that could be the subject of review by the Tribunal …
The Tribunal does not agree that it lacks authority to consider the contents of Mrs D'Lima's statement at paragraphs 22-108. The Tribunal does not consider the statements made in these paragraphs to have been made for the purposes of a claim relating to the “nature and conditions” of her employment. Rather, the information provided is provided because it goes directly to an analysis of whether her employment contributed to a significant degree to an aggravation of a pre-existing degenerative ailment. Without the information provided at paragraphs 22-108 (information that details the tasks assigned to Mrs D’Lima and an overview of how various machines work etc) much of the evidence provided by the medical experts and contained in the T-documents from various sources (many of which refer to various machines, duties etc) and upon which Australia Post itself seeks to rely, would be unclear and less useful to the Tribunal when trying to determine whether what Mrs D’Lima did at Australia Post actually caused an “aggravation” of her pre-existing degenerative ailments. That medical evidence does not exist in a vacuum. It requires context. Mrs D’Lima’s statements at paragraphs 22-108 of her written statement provide that context.
Overall, the Tribunal finds the evidence provided by Mrs D’Lima to be informative, convincing and highly persuasive. Mrs D’Lima struck the Tribunal as intelligent, honest and sincere. Contrary to what was contended by Australia Post, the Tribunal found her testimony to be entirely credible. To the extent that she did not disclose prior compensation claims, the Tribunal finds that that failure arose entirely out of confusion about the nature of what she was required to disclose and when – a not uncommon occurrence when dealing with individuals who are not legally trained. Similarly, to the extent that Mrs D’Lima did not disclose the occurrence of some shoulder pain prior to 2010 reflects only (as she herself explained under cross examination) a misunderstanding on her part in relation to when pain reflected an injury for the purposes of her compensation claim.
The Tribunal also notes and attaches significant weight to the fact that Mrs D’Lima’s version of events in relation to the injuries sustained in July 2010 (left shoulder) and June 2012 (right shoulder) align with contemporaneous records kept by Australia Post immediately after Mrs D’Lima was injured in both 2010 and 2012. Similarly, the medical records of her General Practitioner, Dr Kain, and his clinical colleagues support her version of events.
In that context, the Tribunal accepts as highly reliable and relevant Mrs D’Lima’s written statement that on 28 July 2010 she felt immediate pain in her left shoulder after flipping a particularly heavy tray of on the conveyor belt. The Tribunal also accepts her statement that on 25 June 2012 she injured her right shoulder whilst working on the MLOCR (specifically, while carrying a heavy tray and tipping it onto the conveyor belt, performing the driver role).
In relation to the weight to be attached to Mrs D’Lima’s written statement and testimony, the Tribunal notes the decision in May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93. In May, the Full Court emphasised that the Tribunal’s function does not require it to accept medical opinion on a conclusion which the empowering statute has given to it as fact-finder:
... neither the terms of s 4 of the SRC Act, nor the authorities, preclude an injury being established on the basis of an account by a claimant of the disturbances to her or his body or mind, without the necessity for a diagnosis of a recognised medical condition, or corroborating pathology or medical opinion. Whether or not the evidence of a claimant will be sufficient, if it is not supported, corroborated or confirmed by independent medical opinion or pathology, will be a matter for the Tribunal’s satisfaction on the evidence in each particular case. The error in the Tribunal’s reasoning process at [52] was to proceed on the basis that a claimant’s account could never suffice to establish an injury.
The Tribunal attaches significant weight to Mrs D’Lima’s version of events. Fortunately, the Tribunal also finds support from the other evidence before it, discussed below.
In that regard, the Tribunal accepts that Mr Alexeef is highly regarded and that his evidence in relation to the nature of Mrs D’Lima’s degenerative condition is persuasive. The Tribunal also finds that Dr Kain was right to state that he would defer to Mr Alexeef in that regard as it had been some time since he had actually been in the operating room. This does not mean, however, that the evidence provided by Dr Kain should be dismissed or that the evidence of Mr Alexeef should prevail.
Dr Kain’s clinical notes and oral evidence go a long way toward substantiating that something significant occurred on two occasions that contributed to an aggravation of Mrs D’Lima’s pre-existing degenerative shoulder condition. In that regard, the Tribunal attaches significant weight to his evidence. Dr Kain had seen Mrs D’Lima since 2010 on numerous occasions. He followed the course of her injuries and did so from the perspective of someone who, because of his background in treating other Australia Post employees, was well aware of what someone like Mrs D’Lima did in the course of her normal duties. His background and evidence help give Mrs D’Lima’s version of events both context and credibility.
Unfortunately, Mr Alexeef’s evidence does not adequately address the core issue before this Tribunal – ie, whether Mrs D’Lima’s pre-existing ailment was aggravated to a significant degree by her employment with Australia Post. As noted above, much of this may be due to the fact that much of his evidence focusses on whether Mrs D’Lima had an injury (other a disease) instead of the core issue before this Tribunal – that being whether there was an aggravation of a pre-existing ailment. The Tribunal is also not persuaded by some of the conclusions drawn by Mr Alexeef.
In effect, Mr Alexeef’s main argument is that what happened could have occurred anywhere and at any time due to the degenerative ailment in question. In Mrs D’Lima’s case, he asserts, the ailment progressed and it was simply “coincidental” that she suffered an onset of severe pain while working with Australia Post. In other words, she would have developed symptoms regardless of where she was and irrespective of what she was doing at the time the symptoms arose.
This was an argument raised and rejected in Reardon and the Tribunal is not persuaded by the analysis provided here by Mr Alexeef.
On the evidence, the use of the word “coincidence” in this context simply does not ring true. There is no convincing evidence of any serious pain or medical history of significant pain prior to 2010. An incident then occurs at work in 2010, that incident is reported and workplace records substantiate the event in question. Mrs D’Lima then sees various doctors and the medical evidence shows a sudden increase in significant symptoms post the incident in question. A further incident again resulting in severe pain then occurs in 2012 in the same work environment. It is inconceivable in this context that two accidents occurring within a two year period in the same work environment that resulted in significant pain is merely coincidental. Rather, what one sees is clear, causal connection between Mrs D’Lima’s work related incidents of 2010 and 2012 and an increase in her symptomology resulting in considerable pain, discomfort and incapacity. While it is true that what occurred could have occurred elsewhere, that does not mean that it didn’t happen here, when it did and in the circumstances described by Mrs D’Lima. What matters is whether her work environment caused, to a significant degree, her condition to be aggravated. The evidence shows here that it did.
Further, and significantly, as correctly outlined by counsel for Mrs D’Lima in Written Submissions, Mr Alexeef’s conclusions seem to be contradicted by his own report of 28 August 2015 in which he states that in the absence of a specific injury “all that has happened is that Mrs D’Lima has exacerbated the pathology already present during her employment with Australia Post.” Mr Alexeef restated this belief in oral evidence before this Tribunal.
In that context, the Tribunal also notes that both Dr Cairns and Dr Phillips in their written reports seem to agree that some sort of aggravation of Mrs D’Lima’s ailment occurred while she was at work. Dr Cairns in his report of 26 March 2016 accepts that the activity of flipping a tray of mail may have symptomatically provoked the underlying pathology in relation to Mrs D’Lima’s right shoulder and Mr Philips, in his report of 27 May 2015, reports that Mrs D’Lima’s left shoulder became symptomatic at work.
In this context, the Tribunal agrees with the summary provided by counsel for Mrs D’Lima that all of Australia Post’s experts agree that Mrs D’Lima suffered symptoms while at work with Australia Post and all agree that some sort of aggravation of a pre-existing ailment occurred at work.
While it may be argued that the evidence of the medical experts is not conclusive in this regard because words such as “may” or “some” are used or at least implied in this context, the Tribunal is not bound to accept the use of these words as conclusive. The Tribunal is not bound to accept the medical conclusions drawn by Mr Alexeef and Mr Philips and Mr Cairns that the work environment may have caused “some” aggravation and the Tribunal does not. Rather, based on all of the evidence before it, the Tribunal can find, and does find, that in relation to both her right and left shoulder, Mrs D’Lima’s employment with Australia Post was a significant contributor to the aggravation of her pre-existing degenerative shoulder condition.
As noted above, the Tribunal notes, in particular, the persuasive evidence given by Mrs D’Lima that she experienced severe pain on two specific occasions while working with Australia Post and notes that her complaints were corroborated by both internal Australia Post records and the contemporaneous records kept by her general practitioner.
In this context, the Tribunal also attaches little weight to the fact that Mrs D’Lima may have experienced some pain in her shoulders prior to her employment with Australia Post. There is simply insufficient evidence that Mrs D’Lima experienced the type of pain or severity of symptoms she now experiences until she was injured while working with Australia Post. What one sees here is a worsening of her condition and there is no reason, as in Reardon, that a worsening or increase in symptoms cannot constitute an aggravation injury for the purposes of the SRC Act. The Tribunal finds that although Mrs D’Lima did suffer some shoulder pain prior to the incidents of 2010 and 2012, that pain was significantly increased after 2010 and that increase was caused by her employment setting.
Nor is the Tribunal’s conclusion in this regard altered by the fact that Mrs D’Lima may have injured herself to some degree while working as a cleaner prior to joining Australia Post. She may well have, but that is not the relevant test. Factors other than her current employment may indeed have contributed to the onset of her symptoms but, as the relevant authorities show, current employment does not have to be the sole or major cause of the aggravation in question. Here, it is sufficient if Mrs D’Lima’s current employment with Australia Post contributed “to a significant degree”. What needs to be examined is whether something happened when working with Australia Post that in effect triggered to a significant degree her symptoms. And, if so, whether what Mrs D’Lima was doing in that work environment significantly contributed to the aggravation of her pre-existing condition. The Tribunal finds that what Mrs D’Lima was doing while working with Australia Post did indeed significantly contribute to the aggravation of her pre-existing conditions.
In any event, there is no concrete evidence that anything Mrs D’Lima did in a prior life may have caused the spike her pain and symptomology in 2010 and 2012. There is, however, strong evidence to suggest a clear causal connection between her employment with Australia Post and the aggravation of her pre-existing ailment. The Tribunal finds that Mrs D’Lima’s pain was clearly made significantly worse in this context.
In this regard, the Tribunal does not accept the argument advanced by Australia Post that Mrs D’Lima suffered only a mere symptomatic expression of pain while at work resulting from her pre-existing condition and that this is not evidence of an aggravation. This argument was effectively addressed by Justice Mortimer in Reardon when she wrote:
31.Comcare made the repeated submission, in relation to each question of law it raised, that what occurred in 2011-2013 to Mrs Reardon at work was analogous to a worker walking on a fractured leg at work, and was not compensable because the pain and other symptoms experienced by Mrs Reardon arose only by reason of her previous, non-work-related incapacity. In general terms, I find this submission unpersuasive. I am confirmed in that view by the analysis of Finkelstein J in Tippett v Australian Postal Corporation [1998] FCA 335; 27 AAR 40 at 43-44. Where the “experience” of an injury (including a disease) is increased or intensified, or recurs, there may be an aggravation. The experience of the injury, or the symptoms, are part of the injury. This includes pain. Finkelstein J then made the following observations about the qualification in Beattie:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.

The circumstances of Mrs D’Lima’s work related injuries evidence activities that caused her to suffer pain or suffer pain more intensely. The absence of change in the underlying condition or ailment does not preclude the existence of an aggravation of the ailment. The existence of an increase in pain and increased restriction arising through the aggravation of her underlying condition as a result of her employment is sufficient.
To again reference the words of Justice Mortimer in Reardon (at paragraph 39), the Tribunal’s task is to look not only for the requisite degree of aggravation, but also a causal rather than a temporal link with employment. Australia Post’s fractured leg example is not as one-dimensional as its submissions might suggest. If, for example, a worker was required to work standing for long periods of time on a leg which had been broken (in circumstances having no connection with her employment) then, depending on the evidence, there is no reason why it would not be open to the trier of fact to find there was an aggravation to the requisite degree under the SRC Act. In relation to Mrs D’Lima, the Tribunal finds that on all of the evidence before it, the circumstances of Mrs D’Lima’s work environment contributed to a significant degree to the aggravation of her pre-existing condition resulting in more intense pain than evidenced at any other point in her life. There was clearly a worsening of her condition in this employment context. The causal connection is clear.
Further, in relation to whether Mrs D’Lima’s symptoms were merely transitory, the Tribunal has considered all of the matters provided in section 5B(2) of the SRC Act as have all of the authorities, including Beattie, referenced by Australia Post and critically assessed in Reardon. Having so considered, the Tribunal finds that the worsening of Mrs D’Lima’s symptoms by her employment factors was not transitory or short-lived, but rather continues, albeit with moments of relief that do not detract from the reality of her ongoing pain and physical incapacity.
Further, on the evidence, Mrs D’Lima remains incapacitated at work. In this regard, the Tribunal notes the arguments advanced by counsel for Mrs D’Lima at paragraphs 80-89 of his Written Submission as follows:
80.The respondent argues that even allowing for the existence of a compensable injury, the evidence demonstrates that the effects of any such injury resolved long ago.
81. The evidence does not support that hypothesis:
1.If the aggravation had been short-lived, as suggested by Mr Alexeeff, one would have expected the applicant to have returned to her pre claim asymptomatic state. She has not.
2.The medical evidence accepts that the applicant is symptomatic, is restricted in her work and requires treatment. That collective view post-dates the determinations ceasing liability under sections 16 and 19 of the Act.
82.At para 57 the respondent points to the medical records identifying evidence to underpin a submission that her left shoulder symptoms had resolved. This is an unhelpful ‘cherry picking’ of the evidence.
83.For instance, while the respondent, in para 57(b) points to an entry on 24 May 2011, that same entry also noted mild tightness left trapezius.
84.Moreover, when reading immediately on from the entry relied on by the respondent, the notes reveal:
1.21 June 2011: Almost FROM (full range of movement) in the left shoulder, pain free. It is patent that the applicant continued to have ongoing restrictions. It is unclear whether she experienced pain if trying to demonstrate a full range of movement. Dr Kain was not asked.
2.13 July 2011: Left shoulder was reported as symptomatic. On examination there was restriction in external rotation. There was not a free range of movement.
85.Similarly, in relation to the right shoulder, the respondent points to an entry in the notes on 19 March 2013. However, this does not reveal an absence of symptoms, but merely an absence on that particular day of significant pain and tenderness. Most critically, however, a proper reading of this entry reveals that the presentation and examination on 19 March 2013 was in the context of the applicant being on restricted work duties and limited to below shoulder level work and working with a buddy on the BCS and MLCOR machines.
86.Far from being evidence of recovery, it is unequivocal evidence that the applicant continued to be significantly restricted in her employment. So much is also clear when regard is had to subsequent entries in the notes.
87.That the applicant reported being symptom free while away from her work (as per the entry on 1 July 2013 and also stated in evidence) is similarly not evidence of the cessation from the effects of a work caused aggravation. To suggest otherwise would give rise to an absurdity whereby the absence of consciously experienced pain or another subjectively experienced symptom, for instance during sleep, would infer that the aggravation has ceased where in fact the resumption of the very activity the next day that resulted in the aggravation reveals that it has not. One needs to look at the totality of the evidence.
88.The point being that for the purposes of section 5B, an aggravation of an underlying ailment does not cease to exist the very moment there is the absence of subjectively experienced symptoms. In some, but certainly not all cases, it may be evidenced when the same activity that initially gave rise to the aggravation no longer causes the underlying condition to be aggravated referable to subjectively experienced symptoms, but this can only be determined on a case by case basis.
89.It is sufficient here to note that the applicant has never been able to undertake the same activity that initially caused the aggravation without that activity causing her to subjectively experience symptoms. Noting that section 4(9) of the Act defines an incapacity for work to mean an incapacity to engage in any work or to engage in work at the same level the employee was engaged in immediately before the injury occurred, there can be no doubt that she is incapacitated and has been since 28 July 2010.
The Tribunal agrees entirely with this summary. Mrs D’Lima’s incapacity to undertake her usual work duties (ie, those level of duties she was engaged in prior to being injured) is non contentious in view of evidence before the Tribunal. She remains incapacitated as per section 4(9) of the SRC Act and is thus entitled to compensation.
DECISION
Mrs D’Lima suffers from a condition best described as “a pre-existing degenerative condition” in both shoulders. This condition satisfies the descriptor of an ailment under section 4(1) of the SRC Act.
There is no dispute that Mrs D’Lima suffers from a degenerative condition in both shoulders. The medical evidence makes that clear. The evidence also shows that Mrs D’Lima’s employment with Australia Post did not cause her pre-existing degenerative conditions. Accordingly, the Tribunal must determine whether Mrs D’Lima’s employment with Australia Post contributed to, to a significant degree, an aggravation of her pre-existing conditions and, if so, the duration of any aggravation and whether it gives rise to liability under s 14 of the Act.
For the reasons outlined above and on the basis of the entirety of the evidence before it, the Tribunal finds that Mrs D’Lima’s employment with Australia Post aggravated to a significant degree her pre-existing ailments of degenerated right and left shoulders. Mrs D’Lima’s pre-existing conditions became worse when engaged in employment related activities with Australia Post. Her employment duties directly caused, to a significant degree, aggravation of these ailments and she remains incapacitated as a result thereof for the purposes of the SRC Act.
ORDERS
The Tribunal sets aside the decisions under review.
Application 2015/1849
In substitution for the decision made on 1 April 2015, the Tribunal determines that, pursuant to section 16 and section 19 of the SRC Act, the respondent is liable to pay compensation for the aggravation of the applicant’s pre-existing degenerated right shoulder.
Application 2015/4292
In substitution for the decision made on 24 July 2015, the Tribunal determines that, pursuant to section 16 and section 19 of the SRC Act, the respondent is liable to pay compensation for the aggravation of the applicant’s pre-existing degenerated left shoulder.
The Tribunal remits this matter to the respondent for reassessment of the applicant’s claims for compensation in accordance with the reasons outlined herein.

I certify that the preceding 153 (one hundred and fifty three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall
.......................[sgd D Brodie].................
Administrative Assistant
Dated 15 July 2016

Dates of hearing 19-20 April 2016

Date final submissions received 14 June 2016

Counsel for the Applicant Mr M Roberts

Solicitors for the Applicant Tindall Gask Bentley

Counsel for the Respondent Mr P Woulfe

Representative of the Respondent
Ms D Hatton,
Australian Postal Corporation Litigation Section

[2016] AATA 495

15 July 2016

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Duty of Care

Remedies

Statutory Construction

Division	GENERAL DIVISION
File Numbers	2015/1849 and 2015/4292
Re	Rosemarie D'Lima
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Tribunal	Deputy President Dr Christopher Kendall
Date	15 July 2016
Place	Perth

Dates of hearing	19-20 April 2016
Date final submissions received	14 June 2016
Counsel for the Applicant	Mr M Roberts
Solicitors for the Applicant	Tindall Gask Bentley
Counsel for the Respondent	Mr P Woulfe
Representative of the Respondent	Ms D Hatton, Australian Postal Corporation Litigation Section