DEBORAH SOLWAY and AUSTRALIAN POSTAL CORPORATION

[2010] AATA 507

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 507

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5162;

GENERAL ADMINISTRATIVE DIVISION		)               2009/2220
Re		DEBORAH SOLWAY

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Mr R G Kenny, Senior Member;
Associate Professor J B Morley RFD, Member

Date8 July 2010

PlaceBrisbane

Decision

The Tribunal affirms the decision dated 25 September 2008 (2008/5162).

The Tribunal sets aside the decision dated 25 September 2008 (2009/2220) and substitutes its decision that the Australian Postal Corporation is liable, under s 14(1) of the Act, for a temporary aggravation of a constitutional condition in Ms Solway’s right wrist and that, from 12 August 2008, the injury no longer resulted, in accordance with s 14(1) of the Act, in incapacity for work or impairment.

..................[Sgd].................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Liability accepted for soft tissue injury right wrist - Effects of injury resolved – No continuing incapacity or impairment - Decision affirmed.

WORKERS’ COMPENSATION – Liability not accepted for aggravation of wrist injury -– Decision set aside – Liability accepted for temporary aggravation of constitutional condition in right wrist - Effects of aggravation resolved - No continuing incapacity or impairment

Safety Rehabilitation and Compensation Act 1988 ss 4, 5A, 14, 16, 19, 24, 27

REASONS FOR DECISION

8 July 2010 Mr R G Kenny, Senior Member;
Associate Professor J B Morley RFD, Member

BACKGROUND

1. Since 2000, Deborah Solway has been employed by the Australian Postal Corporation (APC) as a mail sorter. On 9 December 2007, when based at the Northgate Mail Centre (the Centre), she lodged a claim with the APC for rehabilitation and compensation in respect of “strained right wrist with soft tissue damage”. She alleged that the injury occurred as a result of a sudden movement of the handle of power lifter which she was holding at work on 2 December 2007. On 27 December 2007, the APC accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “soft tissue injury right wrist”. On 14 April 2008, the APC determined that there was no present liability to pay compensation to Ms Solway under ss 16, 19, 24 or 27 of the Act. That determination was affirmed in a reviewable decision on 25 September 2008.

2.      On 4 July 2008, Ms Solway lodged a further claim with the APC for “right wrist sprain/tendonitis” alleging that she had aggravated the original wrist injury at the Centre when lifting heavy corflutes containing mail on 12 June 2008.  On 6 August 2008, the APC denied her claim and this was affirmed in a reviewable decision by the APC on 25 September 2008. 

3.      On 15 October 2008, Ms Solway wrote to the Tribunal and advised that she wished to appeal both reviewable decisions.  A standard form was sent to her and she lodged this with the Tribunal on 31 October 2008. This has been treated as an application to review both of the decisions made on 25 September 2008.

4.      In November 2009, Ms Solway made a further claim for compensation under the Act in relation to an incident at the Centre in October 2009.  This also was in respect of her right wrist.

5. On 14 May 2010, by decision of own motion, the APC revoked the determination of 6 August 2008 and the subsequent decision of 25 September 2008 in that matter, determining that Ms Solway’s second claim should be accepted and that APC was liable under s 14 of the Act for temporary aggravation of a constitutional condition in Ms Solway’s right wrist. However, the APC then also determined that, by 12 August 2008, any symptomatology experienced by Ms Solway was not related to the accepted work-related aggravation.

ISSUES AND LEGISLATION

6.      Ms Solway submitted that she has continued to experience pain in her wrist since December 2007 and that this was related to the initial work-place injury and the work-related aggravation of the condition.  She also submitted that the Tribunal should make a decision in relation to the claim she lodged in November 2009.

7.      Charles Clark, for the APC, submitted that Ms Solway’s right wrist condition is a constitutional degenerative one and that any effects from her employment with the APC were temporary in nature.  He submitted that the only matters before the Tribunal were those relating to the incidents which occurred on 2 December 2007 and 12 June 2008. 

8.      Mr Clark noted that the decision of own motion by the APC on 14 May 2010 was made after Ms Solway sought review of the decision dated 25 September 2009 in relation to the second incident.  He submitted that the Tribunal ought set aside that decision and substitute a decision in the terms expressed in the decision of own motion.

9.      A precondition to a review being undertaken by the Tribunal is that the internal review process in s 62 and s 63 of the Act must be completed.  In respect of the claim made by Ms Solway in November 2009, that has not occurred.  Accordingly, we accept as correct Mr Clark’s submission that that matter is not before the Tribunal.

10. The term injury is defined in ss 4(1) and 5A of the Act in a manner which includes both a soft tissue injury to the right wrist as well as an aggravation of that condition. It is not in dispute that Ms Solway experienced incidents at the Centre on 2 December 2007 and 12 June 2008. The issue for the Tribunal to determine is whether, due to those incidents or either of them, the APC is liable, under s 14 of the Act, to pay compensation to Ms Solway for an injury which has resulted in incapacity for work or impairment.

EVIDENCE

X-ray, ultrasound and MRI results

11.     On the date of the first incident involving her right wrist, Ms Solway attended the Emergency Department of the St Andrew’s hospital.  Her wrist was x-rayed and, in a report dated 2 December 2007, Dr Adrian Ternouth noted that the x-ray “showed no problem”.  Ms Solway underwent an ultrasound procedure on 15 April 2009.  In her report of the same date, Dr Mitesh Gandhi recorded her findings:

The flexor tendons and extensor tendons about the right wrist appear intact.  There are no features of tenosynovitis.  There are no soft tissue masses or ganglia identified. 

12.     Ms Solway underwent an MRI scan on 24 August 2009.  In his report, dated 28 October 2009, radiologist Dr P Cleland reported that it revealed a multi loculated ganglion projected from the volar surface at the level of the radial carpal joint.  He also noted an unfused fracture fragment on the distal pole of the scaphoid.  Upper limb surgeon Dr Pritpal Bansi also reviewed the MRI scan.  In his report, dated 13 October 2009, Dr Bansi noted that, in addition to the volar wrist ganglion, it revealed an interosseous ganglion and a ganglion on the ulnar aspect of the wrist.  He described the volar wrist ganglion as being the only symptomatic one and discussed with Ms Solway a surgical procedure in relation to it.

Specialist practitioners

13.     In evidence were reports from Hand and Upper Limb Surgeon Dr Steve Andrews (dated 12 February 2008); from Consultant Orthopaedic Surgeon Dr Simon Journeaux (dated 22 February 2010); and Consultant Neurologist Dr John Cameron (dated 21 March 2009, 20 April 2009 and 1 December 2009).  Dr Journeaux and Dr Cameron also gave oral evidence.

14.     Before completing his report, Dr Journeaux examined Ms Solway and also made reference to the documentation completed in relation to Ms Solway’s claim.  This included the reports of x-ray, ultrasound and MRI procedures conducted on Ms Solway.  Dr Journeaux noted that Ms Solway had sustained a soft tissue injury to the right wrist from which, more likely than not, she had made a significant recovery.  He noted that the MRI revealed significant constitutional abnormalities which, more likely than not, contributed to her current symptomatology.  He also noted degenerative change on the radial side of the wrist to which her wrist pain could be reasonably attributed.  He considered that, while her work-related activity could aggravate her wrist symptoms, it was not responsible for them. 

15.     Dr Journeaux referred to an avulsion fracture fragment which was noted in the MRI report but which had not been demonstrated in the x-ray taken some 20 months earlier or the ultrasound taken some four months earlier.  Dr Journeaux considered that this was a “red herring” and had not contributed to her wrist symptoms.  His opinion was that any work-related aggravation of Ms Solway’s wrist condition was only temporary and would have resolved in a period of weeks or one to two months.  His opinion was that Ms Solway had, more likely than not, fully recovered from any work-related wrist injury. 

16.     In his report, Dr Andrews described a soft tissue injury to Ms Solway’s right wrist.  He considered that it seemed to be settling well with conservative treatment and that her symptoms had almost completely resolved.

17.     Dr Cameron saw Ms Solway on 20 March 2009.  He noted that she experienced episodic pain in the right wrist with limitations on repetitive activity with her hand.  He described a full range of wrist movement, a strong fist and normal dexterity.  Dr Cameron noted that x-rays conducted on 2 December 2007 and 12 February 2008 were normal.  He considered that Ms Solway had suffered a strain injury in December 2007.  His opinion was that any such strain injury and exacerbation of it in June 2008 would have settled within weeks or one to two months of each event.  He was unable to offer any neurological reason for any continued pain.  Dr Cameron arranged for the ultrasound to be conducted.

18.      In his second report, Dr Cameron referred to the ultrasound conducted on 15 April 2009.  He described it as normal and wrote that it appeared to exclude any features of tenosynovitis or other soft tissue conditions and his opinion again was that he could offer no neurological explanation for Ms Solway ongoing problems.

19.     In his final report, Dr Cameron reported on the MRI scan conducted on 28 October 2009.  His opinion was that the scan revealed degenerative changes in her wrist bones.  Dr Cameron referred to the avulsion fracture seen in the MRI scan and considered that, as it did not show up in the earlier x-rays, it may have been caused by a subsequent incident.  He noted the presence of multi loculated ganglion and his opinion was that these were also the result of degenerative processes.

20.       In his evidence, Dr Cameron confirmed his opinion that the condition of Ms Solway’s right wrist was related to an underlying degenerative process and not to the incidents that occurred in Ms Solway’s workplace. 

Other evidence

21.     Medical certificates completed by a range of general practitioners seen by Ms Solway in relation to the first two incidents relating to her wrist were in evidence[1].  Some were of her own choosing and others were nominated by the APC. 

[1] See the T documents and exhibit 5.

Doctor	Date	Fitness for work	Unfitness for work
St Andrew’s Emergency Centre	2 December 2007	from 2 December 2007
Emma Dunning	3 December 2007	3 December 2007 until 5 December 2007
Krishna Majumdar	6 December 2007	6 December 2007 until 7 December 2007
Alan Jones	13 December 2007	from 17 December 2007 with lifting restrictions
Alan Jones	17 December 2007	with lifting restrictions
Alan Jones	19 December 2007	with lifting restrictions
Alan Jones	24 December 2007	with lifting restrictions
Alan Jones	2 January 2008	with lifting restrictions
Kim Chye	8 January 2008	with lifting restrictions
Kim Chye	16 January 2008	with lifting restrictions
Kim Chye	30 January 2008	with lifting restrictions
Kim Chye	20 February 2008	with lifting restrictions
Kim Chye	26 February 2008	with lifting restrictions
Kim Chye	4 March 2008	from 4 March 2008
Alan Jones	17 June 2008	from 17 June 2008
Anita Sharma	23 June 2008	23 June 2008 until 26 June 2008
Alan Jones	25 June 2008	from 25 June 2008
Cella Duffy	26 June 2008	from 26 June 2008
Robyn James	1 July 2008	29 June 2008 until 28 July 2008	30 June 2008 until 1 July 2008
Robyn James	4 July 2008	3 July 2008
Robyn James	7 July 2008	4 July 2008 until 7 July 2008
Jan Alton	29 July 2008	29 July 2008 until 14 September 2008
Jan Alton	5 August 2008	3 August 2008 until 8 August 2008
Jan Alton	8 August 2008	8 August 2008 until12 August 2008
Jan Alton	12 August 2008	with lifting restrictions
Krishna Majumdar	26 August 2008	26 August 2008 until 26 September 2008
Krishna Majumdar	25 September 2008	25 September 2008 until 7 October 2008
Catherine Jessop	6 October 2008	8 October 2008 until 8 November 2008
Catherine Jessop	21 November 2008	with lifting restrictions
T Patel	12 January 2009	12 January 2009
Krishna Majumdar	15 January 2009	with lifting restrictions
Kohei Matsuda	13 February 2009	with lifting restrictions
Mark Goss	17 March 2009	13 March 2009 until 17 April 2009
Mark Goss	30 June 2009	From 30 June 2009

CONSIDERATION

22.     Ms Solway has a strong belief that her right wrist pain is directly related to the initial incident on 2 December 2007 and to the aggravation that occurred to it on 12 June 2008.  She has seen many general practitioners and, on some occasions, has been excused from attending work because of her wrist.  On other occasions, she has been given restrictions on aspects of her work such as lifting heavy items.  However, none of those practitioners has concluded that her ongoing symptoms are related to the incidents of 2 December 2007 or 12 June 2008. 

23.     A contrary opinion has been expressed by Dr Journeaux and Dr Cameron.  Each of them examined Ms Solway and gave consideration to the results of her x-rays, ultrasound and MRI procedures.  They concluded that her condition is due to degenerative processes unrelated to Ms Solway’s employment and that any effect of the incidents on 2 December 2007 and 12 June 2008 were temporary in nature and would have resolved with a few weeks to two months of the respective incidents.  

24.     The issue before us is a medical one.  On the basis of the specialist medical evidence of Dr Journeaux and Dr Cameron, we are satisfied that, on 2 December 2007, Ms Solway suffered, in the course of her employment, an injury to her right wrist, the effects of which had resolved by 14 April 2008. 

25.     On that evidence, we are also satisfied that, on 12 June 2008, Ms Solway suffered, in the course of her employment, an aggravation of a constitutional condition in her right wrist, the effects of which had resolved by 12 August 2008.  After that date, any symptoms experienced by Ms Solway in her right wrist are related to the underlying constitutional condition and not to her employment.  This decision is in accordance with the outcome of the review by own motion conducted by the APC on 14 May 2010.

DECISIONS

26.The Tribunal affirms the decision dated 25 September 2008 (2008/5162).

27. The Tribunal sets aside the decision dated 25 September 2008 (2009/2220) and substitutes its decision that the APC is liable, under s 14(1) of the Act, for a temporary aggravation of a constitutional condition in Ms Solway’s right wrist and that, from 12 August 2008, the injury no longer resulted, in accordance with s 14(1) of the Act, in incapacity for work or impairment.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny Senior  Member and of Dr B Morley, Member

Signed: ....................[Sgd].......................................................
  Kate Slack, Associate

Dates of Hearing  29 and 30 June 2010
Date of Decision  8 July 2010
The Applicant was not represented
Counsel for the Respondent    Mr C Clark