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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 495
Decision Date: 15 July 2016

CaseChat Overview and Summary

This matter concerned an application by Mrs D’Lima against the Australian Postal Corporation for compensation under the *Safety, Rehabilitation and Compensation Act 1998* (Cth) (SRC Act) concerning a left shoulder strain. Mrs D’Lima, a Mail Officer, claimed to have injured her left shoulder on 28 July 2010 while performing her duties. Her claim was initially accepted, but Australia Post later ceased liability based on a medical report. Mrs D’Lima sought reconsideration, arguing her injury remained work-related.

The primary legal issues before the Tribunal were whether Mrs D’Lima was entitled to compensation for a degenerative shoulder condition, whether this condition constituted a disease or an injury other than a disease, and crucially, whether her employment with Australia Post had substantially contributed to an aggravation of her pre-existing shoulder ailments, resulting in incapacity or impairment.

The Tribunal found that Mrs D’Lima suffered from pre-existing degenerative conditions in both shoulders, which qualified as ailments under the SRC Act. While her employment did not cause these conditions, the Tribunal determined, based on the evidence, that her work duties had significantly aggravated these pre-existing ailments. This aggravation directly contributed to her ongoing incapacity for her usual work duties, thus establishing liability under the SRC Act. Consequently, the Tribunal set aside the decisions under review and determined that Australia Post was liable to pay compensation for the aggravation of both Mrs D’Lima’s pre-existing right and left shoulder conditions, remitting the matter for reassessment.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

The Tribunal has reviewed all of the above and highlights the following. NON-MEDICAL EVIDENCEStatement of Rosemarie D’Lima dated 1 April 2016 (A3) This statement reads as follows:Personal Details1. 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 History7.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 History12. 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 Post20. 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 Machine27.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.MLOCR43.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 role54.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 RUNNER63.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.MMF73. 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.RAPS80. 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 sorted102.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 Injury109.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 Injury154.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 shoulder201.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 certificates215.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 shoulder241.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 Circumstances270.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)

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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