DAGAN and AUSTRALIAN POSTAL CORPORATION

[2011] AATA 650

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 650

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/3394

GENERAL ADMINISTRATIVE DIVISION		)
Re		KRISTINE DAGAN

Applicant

And  AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 19 September 2011

Place Brisbane

Decision The decision under review is set aside and in substitution the Tribunal finds the respondent is liable for an injury to the applicant’s left shoulder pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.

..............................................

Senior Member

CATCHWORDS

COMPENSATION — shoulder injury — tear in rotator cuff — unloading corflutes — decision set aside

Safety, Rehabilitation and Compensation Act 1988, s 5A, s 14

REASONS FOR DECISION

19 September 2011 Senior Member Bernard J McCabe

1.Kristine Dagan experiences problems with her left shoulder. She says the problems were either caused or aggravated by an incident at her workplace at the end of 2009. She is employed by Australia Post and she has sought compensation in respect of the injury under the Safety, Rehabilitation and Compensation Act 1988 (the Act). The employer says it is not liable for Ms Dagan’s injury because the current condition, such as it is, cannot be attributed to events in the workplace.  That conclusion was set out in the reviewable decision dated 4 June 2010 (exhibit one at pp 69ff).

2.I have decided to set aside the decision under review. I explain my reasons below.

The facts

3.Ms Dagan has worked at Australia Post for around 25 years. In December 2009, she was working in the Northgate mail centre in Brisbane.

4.December is a busy time of year in the post office. There are many parcels and cards that need to be sorted. On 30 December 2009, Ms Dagan says she was assisting in the unloading of corflutes (receptacles that contain bundles of mail items) from a ULD (a “universal loading device”, which is a heavy cage that is used to transport mail items, including corflutes). The corflutes generally weigh between 5-16 kilograms each, although Ms Dagan says they are occasionally heavier. She was retrieving corflutes from the ULD and placing them on a belt at about waist height. She was not required to raise her arms above her head: she was reaching into the ULD and retrieving the items and placing them on the belt beside her. She said she noticed one of the corflutes felt unusually heavy. She could not lift it. She felt a pulling sensation when she tried to move the item. She asked her supervisor to check its weight. She assumed it was much heavier than normal. It turned out the corflute only weighed 8 kilograms. Ms Dagan says she realised she had lost power in her left shoulder. She said she did not experience sharp or sudden pain; she just felt a pulling sensation and lost power. After that, she could not raise her arm or lift her shoulder.

5.Ms Dagan said she remained at the same spot in the carpark for perhaps another 20 minutes before going inside. She said she began to experience soreness in her left arm, but it was not too bad. She thereafter began work on another machine. As the afternoon progressed, she says she experienced a squeezing pain above her elbow. The pain was not serious or debilitating. She did not report the incident to her supervisor. She went home at the end of her shift and began a period of leave over the New Year.

6.The applicant experienced some minor discomfort during her leave but says it was not serious and began to settle. She returned to work on 3 January 2010. As the shift progressed, she says she experienced more pain in her left arm towards her elbow. She spoke to her supervisor and mentioned what had occurred on 30 December. She finished her shift but the pain was serious enough for her to arrange to see her regular physiotherapist the following day. The physiotherapist said she had a shoulder problem. The applicant said she was surprised by that conclusion because the pain was located towards her elbow, not her shoulder. Her general practitioner confirmed there was a shoulder problem, and she was off work until 19 January.

7.The applicant’s account of her symptoms at the time of the incident and in the days that followed was confusing in some respects. At several points in her evidence, she made it clear that the pain was located above her elbow – to the extent that she was surprised when she was told the problem actually lay in her shoulder. But in cross-examination, she appeared to suggest she experienced shoulder pain and bicep pain from at least 4 January. It was also unclear from her evidence whether the pain was a problem during the day on 3 January, or whether it only became an issue at or towards the end of the shift.

8.Mr Clark, for Australia Post, pointed to other shortcomings in the applicant’s account. She agreed she had experienced a shoulder injury in December 2009. I note there is a reference to an injury in December in the physiotherapist’s notes at exhibit 4. It is unclear whether that injury occurred at work or at the applicant’s home where she may have been packing boxes in anticipation of moving house. Ms Dagan denies that she did any packing before or after Christmas; she says that was left to family members.

9.The applicant was a poor historian in some respects, but I think I can safely make the following findings:

·she has had shoulder problems in the past (I learned of a serious tear in her right shoulder in 2007, which I note the applicant said felt quite different to what occurred on 30 December 2009, and she may have experienced some sort of strain or trauma at home earlier in December) and she has attended a physiotherapist regularly for aches, pains and stiffness in her shoulders and elsewhere;

·the applicant did experience some sort of trauma as she reached to grab a corflute from the ULD on 30 December 2009. She felt a pulling sensation and experienced a loss of power to the left arm and shoulder. The incident did not lead to sharp pain although her left bicep gradually became sore over the remainder of the day. The applicant substantially recovered while she was on leave before the soreness in her left bicep became more obvious during the course of the workday on 3 January. By the time the applicant saw her physiotherapist the following day, she was experiencing some pain and weakness in her left bicep and shoulder and required time off work;

·when the applicant returned to work on 19 January, she was assigned light duties. She continued to experience symptoms in the bicep and shoulder over an extended period. She underwent surgery in March 2011 to treat a tear.

10.In summary, I accept something happened to the applicant at work on 30 December 2009 and that her left shoulder and bicep subsequently became weak and more painful.

The medical evidence

11.Dr Sommerville, an orthopaedic surgeon called by the applicant, suggested the loss of power described by the applicant was common in the event of a tear in the rotator cuff. He suggested Ms Dagan’s account of her symptoms at the time of the incident and in the immediate aftermath was consistent with the tear he observed on an MRI. He acknowledged there may have been pre-existing degenerative change although it became apparent at the hearing that he may not have been aware of the applicant’s complete history of shoulder problems. He also acknowledged tears could develop without trauma in an older person with a history of degenerative change. But he argued one would expect degeneration to occur at roughly the same pace in both shoulders. In his view, the sudden worsening of the left shoulder relative to the right was most likely explained by trauma. He said the absence of pain and the relatively light weight of the corflute did not surprise him. He suggested, as did other witnesses, the incident may have been “the straw that broke the camel’s back”.

12.Dr Rimmington was the orthopaedic surgeon who performed the surgical repair of the applicant’s tendon in 2011. In his evidence, he said the applicant’s reported symptoms were consistent with the injury he observed. He also accepted the mechanism of injury described by the applicant and the absence of immediate pain was consistent with the tear he observed. He pointed out one might not experience pain until the body cooled down some time after work was done for the day. He acknowledged tears might happen as a result of an underlying degenerative condition but added he thought it was more likely that the tear was the product of trauma, especially if the trauma involved lifting a number of weights above shoulder height or an extension. I note the applicant has described a mechanism of injury that involved some extension.

13.The respondent called Associate Professor Steadman to give evidence. Professor Steadman said the tear that was subsequently discovered and which caused the problems was unlikely to have occurred on 30 December 2009. He said the history of the applicant’s symptoms of shoulder pain referred to in the physiotherapist’s notes (together with evidence of fatty atrophy) suggested there was a degenerative condition of long-standing. He said the incident of 30 December was not sufficiently serious, nor was the physical sensation that accompanied the incident sufficiently remarkable, to conclude it was the cause of a catastrophic tear. He also questioned whether the body movement the applicant described when the incident occurred was capable of producing a massive tear.

14.On cross-examination, Professor Steadman agreed it was possible the incident of 30 December may have made an existing tear worse. He also used the expression “straw that broke the camel’s back”. 

Legal argument

15.Mr Muller, counsel for the applicant, argued the medical evidence established:

·     a tear in the applicant’s left rotator cuff occurred as a result of events in the workplace on 30 December 2009, or

·     an existing tear was made worse by the same events. 

16.In either event, Mr Muller says the applicant must succeed in her claim that Australia Post is liable for her injury under s 14 of the Act.

17.The respondent says the evidence does not go so far as to establish a tear occurred (or was exacerbated) as a result of events in the workplace. It relies in particular on the evidence of Professor Steadman and notes Drs Sommerville and Rimmington may not have had the same access to the applicant’s full medical history. Professor Steadman said the applicant’s condition had to be examined carefully in light of that history.

18.Professor Steadman did acknowledge a realistic possibility that events in the workplace might have caused an existing tear to worsen – the “straw that broke the camel’s back”. The respondent says that concession does not assist the applicant because she is suffering from a disease within the meaning of s 5B of the Act (the underlying degenerative condition) and it is therefore necessary for her to establish events in the workplace made a significant contribution to the worsening of the disease before the respondent is held to be liable under s 14.

19.I am satisfied the evidence establishes the applicant experienced a tear in her rotator cuff as a result of what occurred at work on 30 December 2009. I accept there may already have been tearing, and that the applicant may have been more vulnerable to tears as a result of her underlying degenerative condition. I am also satisfied the tear, or so much of the tear that occurred on 30 December, is properly regarded as an injury other than a disease within the meaning of s 5A (although I accept the underlying condition is itself a disease). It follows the respondent is liable for the injury. If I am wrong in my conclusion that the tear was not a disease, I would still conclude that events in the workplace made a significant contribution to the worsening of that disease. I am mindful of the various references to straws and camel’s backs, but I am persuaded by the evidence of Dr Rimmington in particular who saw the tear itself. He concluded that what he observed during the course of the surgical procedure was consistent with the applicant’s account of a relatively sudden (if not immediate) onset of symptoms following a traumatic incident. Both of the applicant’s medical experts said the applicant’s left shoulder condition was much worse than the right shoulder even though one could expect both shoulders to deteriorate at roughly the same rate if they were subject to the same degenerative condition. While Professor Steadman was sceptical about the contribution of workplace trauma, Dr Rimmington in particular (who after all had the benefit of seeing the tear in the flesh, so to speak) was firmly of the view that the workplace trauma was the major explanation for what occurred.

Conclusion

20.The decision under review is set aside. I find in substitution that the respondent is liable for an injury to the applicant’s left shoulder pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: .....................................................................................
  Associate

Dates of Hearing  18-19 July 2011
Date of Decision   19 September 2011
Counsel for the Applicant           Mr A Muller
Solicitor for the Applicant            Slater & Gordon Lawyers
Counsel for the Respondent       Mr C Clark
Solicitor for the Respondent       Sparke Helmore