Deborah Cassar and Australian Postal Corporation
[2015] AATA 50
•30 January 2015
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/0262
General Administrative Division )Re: Deborah Cassar
Applicant
And: Australian Postal Corporation
RespondentDIRECTION
TRIBUNAL: Regina Perton, Member
DATE: 5 February 2015
PLACE: Melbourne
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to amend the text of the decision in this application as follows:
The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable for compensation to Ms Cassar pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act) on and from the date of cessation on 12 October 2012 to the present date and at the present date in respect of her right shoulder rotator cuff tear and bursitis.
The respondent shall pay Ms Cassar’s costs and disbursements of the application pursuant to s 67(8) of the Act.
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Member
[2015] AATA 50
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/0262
Re
Deborah Cassar
APPLICANT
And
Australian Postal Corporation
RESPONDENT
Decision
Tribunal Regina Perton, Member
Date 30 January 2015 Place Melbourne
The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable for compensation to Ms Cassar pursuant to sections 14 and 16 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of her right shoulder rotator cuff tear and bursitis.
The respondent shall pay Ms Cassar’s costs and disbursements of the application pursuant to s 67(8) of the Act.
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Regina Perton, Member
CATCHWORDS
COMPENSATION – whether condition caused or aggravated through employment – right shoulder condition – whether shoulder condition arose out of or in the course of employment -whether employment contributed to shoulder condition to a significant degree
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 5A, 5B, 14, 16, 19, 67(8)
REASONS FOR DECISION
Regina Perton, Member
30 January 2015
Deborah Cassar has worked for Australia Post as a part-time postal officer for over 20 years. On 23 January 2012 Ms Cassar reported to her supervisor that she had sustained an injury to her right shoulder. She indicated that this had happened while she was sorting mail.
Ms Cassar lodged a claim for compensation on 31 January 2012. On 3 February 2012 Australia Post accepted liability for a right shoulder strain. Further medical examinations resulted in a changed diagnosis, namely right shoulder rotator cuff tear and bursitis. On 21 February 2012 Ms Cassar’s treating orthopaedic surgeon sought Australia Post’s approval and acceptance of liability for right shoulder arthroscopy, sub-acromial decompression and rotator cuff repair. On 24 April 2012 another orthopaedic surgeon agreed that Ms Cassar required surgery for the condition but stated that he did not think her right shoulder injury was the result of a work-related incident. Further investigations and reports followed.
On 12 October 2012 Australia Post determined that Ms Cassar had no further entitlement to compensation for medical treatment and incapacity for work in relation to right shoulder strain. On 20 November 2012 a review officer at Australia Post affirmed the primary determination. On 17 January 2013 Ms Cassar lodged an application for review with the Tribunal.
Ms Cassar submits that her right shoulder condition has been caused and/or aggravated by the nature of her work with Australia Post. Australia Post disagrees.
Relevant Legislation
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Act), as it was at the relevant dates, provides:
Compensation for injuries
Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
...
Section 5A of the Act states:
Definition of injury
(1) In this Act:
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 of the Act states
Definition of disease
(1) In this Act:
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
Section 16 of the Act provides:
Compensation in respect of medical expenses etc.
(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 of the Act provides for compensation where an employee is unable to work her usual hours due to the workplace injury.
WAS Ms cassar’s shoulder condition CONTRIBUTED TO, TO A significant DEGREE, BY Her EMPLOYMENT WITH australia post?
Ms Cassar left school aged fifteen and worked in her parents’ takeaway food store. She first worked for Australia Post in 1989 as a full-time van driver for about a year. After exploring other career options, she resumed working as a box sorter with some driving, delivering parcels. After taking maternity leave, she resumed working for Australia Post in 1992 and has remained an employee since then. Due to organisational changes, Ms Cassar’s duties have changed as have her hours. Since 2004 she has been working permanent part-time on night shift. Ms Cassar has two adult children and her husband is unwell and unable to work.
Ms Cassar’s work primarily consists of sorting of letters and parcels and other related duties. While her standard shift is four hours, five nights a week, she often works longer. The volume of work is variable depending on which day of the week it is and seasonal factors. She is presently undertaking modified duties due to her shoulder condition.
Ms Cassar lodged an incident report at 3 am during her shift on 24 January 2012. She then visited an Australia Post recommended medical practice, Kinetic Health. She was issued with a medical certificate stating she was fit for work but with a lifting limit of 5 kg. Ms Cassar was referred for an ultrasound which was undertaken on 27 January 2012. The findings by Dr Anusha Naidoo were referred to Kinetic Health:
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Clinical notes: 3-6 months increasing shoulder pain now decreasing range of movement and increasing pain.
Findings:
The biceps tendon is intact with a small amount of fluid surrounding the tendon in keeping with a tendonosis.
No abnormality is seen of the subscapularis or infraspinatus tendons which insert without complication.
There is a full thickness incomplete tear of the anterior aspect of the supraspinatus tendon measuring 1.2 cm.
The subacromonial subdeltoid bursa is thickened and there is impingement on abduction.
Impression:
Full thickness incomplete tear of the anterior aspect of the supraspinatus tendon.
Subacromial subdeltoid bursitis.
The bursa would be amendable to an ultrasound guided steroid injection if clinically indicated.
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On 31 January 2012 Kinetic Health developed a physiotherapy management plan for Ms Cassar noting that she would most likely require surgery resulting in a delay in her achieving a return to full pre-injury duties. Doctors Neoh, Lee and Wilkinson issued a series of certificates from 24 January 2012 onwards stating Ms Cassar could work her full hours but on restricted duties.
Ms Cassar lodged the claim for compensation on 31 January 2012. On 3 February 2012 Australia Post accepted her claim determining that she was suffering from a right shoulder strain.
Kinetic Health referred Ms Cassar to Mr Christopher Pullen, orthopaedic surgeon specialising in upper limb surgery. On 15 February 2012 Mr Pullen wrote to Dr Wilkinson, occupational physician, stating:
Thank you for asking me to see this lady. She is a 50 year old right hand dominant postal worker. She presents with right shoulder problems. These have been present for one to two months. She tells me they have gradually developed over time. She now has constant pain. This pain is exacerbated by sorting the mail. She gets pain when reaching on occasion. She gets pain at night. She has tried physiotherapy which has improved her symptoms a little. She has not had anti-inflammatories or analgesics. She has not had cortisone. She is fit and well. She has no past history of right shoulder problem.
On examination of her right shoulder, she has a full range of motion put [sic] a painful arc. She has a positive impingement sign. She has weakness when stressing supraspinatus. She has good strength for the remainder of her rotator cuff.
Her Ultrasound suggests a full thickness tear of her rotator cuff.
Today I have discussed the situation with Deborah. We have discussed non-operative and operative treatment. We have discussed the risks and benefits of both. She is keen to proceed with a right shoulder arthroscopy and rotator cuff repair. We will approach Work Cover for authority.
Dr Pullen also wrote to Australia Post on 15 February 2012 seeking approval and acceptance of financial responsibility for Ms Cassar to undertake a right shoulder arthroscopy, sub-acromial decompression and rotator cuff repair.
Mr Ronald Haig, orthopaedic surgeon, examined Ms Cassar on 17 April 2012 at Australia Post’s request. In his first report concerning Ms Cassar dated 24 April 2012 Mr Haig stated Ms Cassar had a tear of the right shoulder supraspinatus tendon but that:
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I believe her right shoulder condition is constitutional in origin. It is not the result of any particular incident but is most likely to be degenerative (she is aged 50).
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I do not believe any part of her condition has been caused by her employment.
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I agree with the suggested surgery by way of rotator cuff repair.
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The tendon will not of its own accord repair itself. The tear may well extend with time. While a local injection may give relief for a period of time it will not alter or improve the basic underlying pathology of the tear of the supraspinatus tendon. I therefore agree with Mr Pullen’s suggestion of surgery.
On 5 June 2012 Australia Post wrote to Ms Cassar advising that it intended to cease liability for her right shoulder strain but giving her the opportunity to provide additional information should she wish to do so. Ms Cassar provided a response on 28 June 2012 in which she disagreed with aspects of the opinions and history set out in Mr Haig’s report. She provided copies of incident reports she lodged in 2003 and 2009 for shoulder-related complaints and photographs of her work environment. Ms Cassar also provided a letter dated 28 June 2012 from her general practitioner, Dr Damien Green:
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The above patient has a long history of GORD for which she takes Nexium medication.
She is intolerant of NSAIDs as a result and in my care of her, over the last 3 years, I have not been able to prescribe one she has been tolerant of…
On 13 September 2012 Mr Haig provided a supplementary report after receiving a copy of Ms Cassar’s letter in which he stated:
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I acknowledge her letter which I have of course read and considered. My report stated “This would appear to be all below shoulder height use of the upper extremity”. Ms Cassar has advised that there is over shoulder height use of the upper extremity when sorting the mail and I stand corrected on that mater.
I do not see that the unloading of tubs of large letters and other such aspects of her work would render her rotator cuff susceptible to tearing.
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She makes the statement “I think it is absurd that Mr Haig believes that the pain in my right shoulder is brought on due to sleeping in my right shoulder”. There was no such belief in terms of causation of the pain, merely whether such an action exacerbated her pain….
While she is convinced that her injury was due to repetitive mail sorting, I remain of the view that it is more likely due to degenerative change in the tendon which is not at all uncommon in people around the age of 50. Furthermore, such degenerative changes which are related to blood supply have shown to be increased in smokers where the blood supply is impaired.
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On 12 October 2012 an Australia Post delegate ended Ms Cassar’s entitlement to compensation in relation to her right shoulder injury. Ms Cassar applied for reconsideration providing a letter from Dr Greene to Australia Post in which he stated:
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I am the above patient’s regular GP and for convenience reasons she has requested I continue with her workready certifications.
I note from Mr. Pullen’s letter dated February 15th 2012 that he believed her injury to be work related and proposed curative surgery re same.
Given she continues to suffer pain and work restrictions secondary to her injury, I believe she should be reassessed by Mr. Pullen re her injury as I also believe her injury to be work related and require curative treatment.
On 20 November 2012 a reconsideration delegate affirmed the decision to curtail compensation. On 17 January 2013 solicitors now acting for Ms Cassar applied to the Tribunal.
Mr M A Khan, orthopaedic surgeon, provided a report dated 22 October 2013 to Ms Cassar’s solicitor in which he stated:
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Mrs Cassar stated that she had been employed by Australia Post for approximately 24 years and had been doing her duties satisfactorily over the years. She had developed insidiously for the few months before reporting the injury, pain occurring in the right shoulder. The nature of her duties has been well documented. She had stated that she had been using her right arm above shoulder height repetitively during sorting of the mail, dealing with large letters which were often stacked high to the level of her head.
As she was a right hand dominant person, Mrs Cassar used her right arm more than the left and stretched the right arm above shoulder level repetitively, holding and lifting the parcels and letters.
Over a period of time during this repetitive work elevating the arm above shoulder level, I believe this has led to the development of supraspinatus or rotator cuff tendonopathy with subacromial bursitis.
Mrs Cassar is aged 51 years and no doubt has generally some age-related mild degenerative changes in her body even affecting the tendons in her shoulders. However she has been fairly active up until now. She cannot recall any acute episode of injury. She eventually put in an incident report with reference to pain in her right shoulder and shoulder blade, going down the right arm, which she realised had been occurring during the sorting of the mail.
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I consider that this lady’s employment, particularly the job involving sorting large mail and reaching her right arm above shoulder level repetitively and lifting and placing the letters down to the trolley and sorting them out repetitively, has resulted in the development of post traumatic inflammatory tendonopathy in the supraspinatus tendon and development of subacromial bursitis. This would have well been associated with a [sic] pre-existing age-related degenerative changes in the rotator cuff. Similar changes would probably be present showing degeneration in the left asymptomatic shoulder.
Hence I consider that her present condition is consistent with her employment with Australia Post.
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In oral evidence, Mr Khan described in detail how the rotator cuff operates. He said that degeneration of the shoulder region starts after 20 years of age and is also affected by the person’s genetic profile. He described how an affected tendon settles down in the early stages with rest but when it reaches a certain stage it becomes irreversible. He said that Ms Cassar has reached a crisis point where the tear may get worse unless operated on. Under cross-examination he said no one can be sure if there was an early pre-existing tear prior to January 2014 but if there was, the tear has extended due to the nature of Ms Cassar’s work. He concurred that underlying degenerative conditions could have made Ms Cassar more susceptible to a shoulder injury.
Dr David Nelson, corporate ergonomist, was engaged by Australia Post to examine the nature of the work undertaken by Ms Cassar. He provided a report dated 18 August 2014 and gave oral evidence. He used another postal worker who was a similar height and build to present photographs of the work undertaken by Ms Cassar.
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Opinion:
The analysis of Mrs. Cassar’s work as a Mail Officer sorting standard article and large letters to sorting frames, finds nothing in the physical or health science parameters reviewed that would suggest that the system of work has caused the right-side shoulder injury reported by Mrs. Cassar.
There may be probability the system of work caused aggravation to a pre-existing right shoulder injury? An Orthopaedic Surgeon is the appropriate person to examine and report on such a question. However, if this question is relevant, the amount of shoulder activity performed in the work from 2004 to date must be considered as well as the restricted duties imposed for Mrs. Cassar since at least January 2012.
Dr Nelson met with the Delivery Centre Manager but not with Ms Cassar. Ms Cassar challenged aspects of the report, in particular the amount of activity above shoulder level that she undertook and the speed at which she worked. In his report, Dr Nelson had described the design of the letter sorting frames and the speed at which sorters worked.
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The sorting rates for mail officers manually sorting standard letters is an expectation of 23 standard articles per minute, and, 13 large letters per minute. Mrs Cassar was responsible for sorting only non machine-able large letters to round destination and the rate set for that work is 13 large letters per minute…Thus, for an ‘average’ stature female the expectation of working at and above shoulder height in any hour of letter sorting work will equate to approx 25% of the time for a standard article letter sorting frame – approx.. 45 minutes per shift, and approx. 10% of the time for a large letter sorting frame – no more than 10 minutes per shift. However, the maximum heights of reach into the top apertures of either frame are well within the expected limit of safe, easy high reach capability of an ‘average’ stature female. Providing the sorter sits or stands at the appropriate and trained distance from the frame face, the dominant arm posture when extending to place a letter into a top row aperture should not allow the upper arm and elbow to deviate from the body side nor elevate at the elbow to near shoulder height.
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Ms Cassar told the Tribunal that she worked at twice the speed reported by Dr Nelson. Ms Cassar said that contrary to Dr Nelson’s assertion that she would have had comprehensive training in sorting techniques, this had not happened in her case. She said that about every three to four months, the night manager would run fairly short sessions on topics such as how to pick things up correctly or an update on what was happening at Australia Post. Dr Nelson conceded that he had not looked at Ms Cassar’s training records when preparing his report nor observed the way or how quickly she worked.
In a report dated 13 August 2014 written after he had seen the reports of Mr Khan dated 22 October 2013 and that of Dr Nelson dated 30 July 2014, Mr Haig stated:
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I note the differing opinion of Mr Michael Khan in his report regarding causation and the relationship between her work and her condition. We are in disagreement over that.
Thus re-reading my report and the enclosures I remain of the same view that her rotator cuff tear was constitutional in origin. I do not disagree that certain aspects of her work may have rendered the shoulder more painful.
In his oral evidence, Mr Haig maintained the view expressed in his reports that Ms Cassar’s work did not contribute to the rotator cuff tear. He also mentioned that smokers have reduced blood supply to bones and the shoulder tendons are notorious for poor blood supply. He agreed that the pain felt by Ms Cassar was consistent with a rotator cuff tear. Mr Haig stated that a person could have a tear that was not symptomatic.
Under cross examination Mr Haig agreed that he had the impression that Ms Cassar did very little activity above shoulder level based on the information from Dr Nelson. He conceded that if she did work above shoulder level there could be more abrasive action and there could be a contributory problem to her shoulder condition but maintained his view that work was not a major reason for Ms Cassar’s condition.
Australia Post pointed out that in Ms Cassar’s claim for compensation she had not disclosed that she had lodged the previous incident reports from 2003 and 2009. Ms Cassar’s explanation was that she did not lodge a compensation claim after either of those incident reports. Following the first incident report, she did not even attend her doctor. Ms Cassar said that the shoulder pain she had experienced which she outlined in the incident report dated 23 January 2012 was quite different to that which she had felt when she filled out the incident reports some years earlier. She said it was not a deliberate deception on her part.
Ms Cassar said that her team leader had completed the incident form for her as they were not the sort of words she would normally use. However she agreed she had signed the form and in retrospect, perhaps should have included mention of earlier pains in her shoulder.
Mrs Cassar said that the ultrasound arranged by Dr Wilkinson was the first one she could recall being taken of her shoulder. She said that she has never been told that she has a disease in her shoulder.
All of the medical practitioners agree that Ms Cassar has a shoulder injury which requires surgery. They disagree on whether work was a substantial factor in its development to this stage.
Australia Post indicated that Ms Cassar had complained about shoulder problems during earlier stages of her employment. Ms Cassar had not mentioned previous shoulder problems in the claim that is under consideration. Ms Cassar stated that she had not mentioned them in the claim under consideration as she had not lodged any compensation claim in relation to those problems nor taken time off work.
The Tribunal accepts Mr Haig’s opinion shared by Dr Khan that persons aged around 50 years may exhibit degenerative shoulder conditions. However, that does not mean that a degenerative shoulder condition will become symptomatic nor that there will be a tear of the rotator cuff without some other factor coming into play. Mr Khan, Mr Pullen, Dr Wilkinson, Dr Neoh and Dr Greene all support Ms Cassar’s claim that her shoulder condition is work related. Mr Haig agrees about the nature of the condition but is of the opinion that it is degenerative in nature and unlikely to be work-related.
Mr Seit, appearing for Australia Post, argued that Ms Cassar’s condition could be considered a disease and as such, the matters in section 5B(2) of the Act came into play. Mr Carey, Ms Cassar’s counsel, disagreed. He submitted that Ms Cassar suffered an injury or the aggravation of an injury that arose out of, or in the course of, Ms Cassar’s work.
Given the nature of the injury, the Tribunal is of the view that it is preferable to consider it as an injury, not a disease. Taking into account the timing of the symptoms arising and the investigation and diagnosis that followed, the Tribunal is satisfied that the rotator cuff tear is, on the balance of probabilities, related to Ms Cassar’s work. There is no evidence to show the tear existed prior to the onset of sharp pain in January 2012.
Given the nature of Ms Cassar’s work, the circumstances of her injury and the medical evidence, the Tribunal finds that, on the balance of probabilities, her work with Australia Post either caused the rotator cuff tear or aggravated her degenerative shoulder condition.
The Tribunal considers it appropriate for Ms Cassar’s costs and disbursements to be met by Australia Post.
Decision
The Tribunal sets aside the decision under review and substitutes a decision that the respondent is liable for compensation to Ms Cassar pursuant to sections 14 and 16 of the Safety Rehabilitation and Compensation Act 1988 (the Act) in respect of her right shoulder rotator cuff tear and bursitis.
The respondent shall pay Ms Cassar’s costs and disbursements of the application pursuant to s 67(8) of the Act.
I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member ...........................[Sgd].....................................
Associate
Dated 30 January 2015
Date of hearing 20 October 2014 Counsel for the Applicant Mr M Carey Solicitors for the Applicant Maurice Blackburn Respondent In person Counsel for the Respondent Mr R Seit
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