Debra Barrett and Australian Postal Corporation
[2013] AATA 531
[2013] AATA 531
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4341
Re
Debra Barrett
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Dr G J Maynard, Brigadier (Rtd), MemberDate 30 July 2013 Place Brisbane The decision under review is set aside. The Tribunal decides in substitution the respondent is liable for the aggravation of the applicant’s condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988
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Senior Member Bernard J McCabe
CATCHWORDS
WORKERS' COMPENSATION – Australia Post employee – Liability for aggravated condition – Activity aggravating an underlying condition – Erosive arthropathy – Respondent liable – Decision set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Senior Member Bernard J McCabe
Dr G J Maynard, Brigadier (Rtd), Member30 July 2013
Debra Barrett worked as a mail sorter for Australia Post, the respondent in these proceedings. She developed an erosive arthritis of the wrists which has become symptomatic. Ms Barrett said the condition (or aggravation of the condition if it already existed) arose out of her work as a mail sorter. On that basis, she argued Australia Post is liable for the condition pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”). The respondent disagrees with this analysis. It has provided medical evidence suggesting the condition was constitutional in origin. The respondent says the emergence of symptoms is unconnected with the applicant’s work.
The applicant asked the Tribunal to reconsider the reviewable decision dated 25 July 2012 which found the respondent was not liable to compensate Ms Barrett in respect of her “swelling of left wrist” and “soreness in right wrist”. The outcome of the case turns on the expert medical evidence. We discuss that evidence below in the course of explaining why we are satisfied the decision under review should be set aside.
BACKGROUND
Ms Barrett is now aged 60. She commenced work at Australian Post in Canberra in 1996. She became night shift supervisor at the mail centre there. She decided to relocate to Queensland in 2005 for health reasons that are irrelevant for present purposes. She took up a post at the Bundall Mail Centre on the Gold Coast when she arrived. She said she did a variety of tasks when she first arrived at mail centre, but she gradually came to spend more of her time on a barcode sorter. By around 2008-2009, when an additional barcode sorter was acquired, the applicant was spending up to five hours each day on the barcode machine.
We were shown photographs of the barcode sorters in the course of the hearing.[1] They are very large machines. Mail was fed in at one end by an operator. The machine sorted the mail and distributed it into slots. The operator and an assistant would then clear the mail from the slots. The mechanics of that process were the subject of detailed evidence from the applicant and the various medical experts. It involved the use of a pinch-grip (also known as a “c” grip, involving the thumb and the index finger). The applicant said she used both hands to do the work although she is right-handed. The operators had to move very quickly to keep pace with the machine which Mr Rhodes, who worked alongside the applicant, said was capable of processing around 36,000 articles an hour. (The applicant conceded she could control the rate of output from the machine – if it was going too fast she could slow it down – by controlling the rate at which the mail was fed into the machine. But it seems there were limits to how slow she could go. Mr Rhodes also pointed out there were targets which had to be achieved.) Ms Barrett and Mr Rhodes said there were large seasonal variations in the amount of mail to be processed. Ms Barrett referred in particular to busy times of the year and occasional mass mail-outs that would significantly increase the workload. None of this evidence was controversial.
[1] Exhibit 2.
We are satisfied the evidence establishes the applicant was required to reach into the slots and retrieve bundles of mail using a pinch grip. Those motions were repeated many, many times over the course of a day.
The applicant said in her evidence-in-chief that she did not experience any problems with her wrists before she came to work at Bundall. Once she was working full-time on the barcode sorter, she said she began to experience occasional discomfort in her left (that is, her non-dominant) wrist. That happened at least three or four occasions each year for a couple of years. She said the pain would usually abate when she rested over the weekend, and she acquired supports for her wrist. She also said in her evidence-in-chief that she would take pain relief, which included (on occasions) Panadeine Forte. Panadeine Forte ordinarily requires a prescription, but it seems the applicant acquired the tablets from her daughter. Ms Barrett said she did not experience symptoms in her right wrist at that early stage. Mr Rhodes agreed he saw Ms Barrett in apparent discomfort on occasions over several years, and he had noticed she needed breaks on those occasions and would often wear a support on her left wrist.
In cross-examination, Ms Barrett provided more detail of the pain and discomfort she experienced. She said the two-handed operation of the barcode sorter would cause her hands to tire. She would change the way she worked so she tended to use one hand more than the other, until the other hand became uncomfortable – then she would switch back. She also acknowledged she experienced a right shoulder problem in January 2012 which required a rehabilitation program that ran from January to March. Her sick leave records also show she took substantial time off work in the first three months of 2012.[2]
[2] Exhibit 4.
Ms Barrett said her problems really took hold on 24 April 2012. (Indeed, she indicated in her statement that she had never experienced any symptoms in her arms, wrists or hands prior to April 2012.[3] That is clearly wrong given the other evidence.) She remembered the date well because it was around the time of her birthday. She said there had been an unusually high volume of mail going through the centre in the preceding few weeks: there had been a significant mail-out of marketing material, and the recent state election had required the distribution of large amounts of election material. Rates notices had also been distributed during this period. She claimed she developed swelling in the left wrist and filed an incident report. Her general practitioner, Dr Lowe, noted swelling in the left wrist associated with loss of grip strength and numbness. She was sent off for x-rays and ultra-sound studies, but the reports are not included in the notes. She was certified as being unfit for work 30 April to 18 May 2012. She was deemed able to return to work on restricted duties from 20 May 2012 although the leave calendar in exhibit 4 suggests she may not have actually returned to work until 25 May. By this time Dr Lowe’s notes show the applicant was also experiencing pain in her right wrist. She persisted with light duties but was forced to leave work on 18 June 2012 suffering from swelling and pain in the right wrist.
[3] Exhibit 6, [5].
We are not satisfied the applicant’s condition suddenly manifested itself on or shortly after 24 April 2012. While her case proceeded on the basis there had been an unusually high volume of letters coming through the mail centre in March and April that led to the onset of symptoms, we are not persuaded the applicant was exposed to a significant spike in activity,[4] and we note the applicant took a lot of leave in this period in any event. We are satisfied from the evidence of Mr Rhodes and the applicant that she began to experience a gradual onset of symptoms in her wrists during the course of 2011 while operating the barcode sorter, albeit that the symptoms did not become especially severe until April 2012.
[4] Exhibit 3.
THE MEDICAL EVIDENCE
We note at the outset our consideration of the medical evidence is complicated by the fact the applicant did not provide a comprehensive history to any of the medical experts about her history of episodic pain in the wrists. That history was elicited in the course of hearing and put to the experts for comment. It would have been preferable if all that material had been available at any earlier point.
The applicant provided evidence from:
·Dr Lowe, the general practitioner;
·Dr Cohen, a rheumatologist and pain management specialist who is also a conjoint associate professor at the University of New South Wales, and
·Dr Kalamaras, an orthopaedic surgeon specialising in hand surgery.
The respondent relied on the evidence of Dr Hazelton, a specialist in rheumatology and rehabilitation.
All three of the specialists agree the applicant suffers from an erosive arthritis of the wrists. Dr Kalamaras describes it as rheumatoid or psoriatic in origin despite a lack of supporting blood tests. Drs Cohen and Hazelton agree it is of osteoarthritic origin. The practical reality is that both explanations result in similar outcomes: a condition that progressively becomes more serious, albeit that the degree of seriousness and the rate of deterioration will vary depending on many factors.
Opinions diverge on the role played by work, in the form of rapid repetitive use of the wrists. Drs Cohen and Kalamaras agree protecting the hands by minimal use may result in no progress to the most serious endpoint, but on the other hand the serious endpoint may still be the outcome. Both opined that work may hasten the progress of the condition by a process of aggravation. We will consider the evidence of the individual doctors in more detail below.
Dr Kalamaras
Dr Kalamaras stated in evidence that he was able to dislocate the joint at the base of the thumb with moderate pressure during examination. He said this indicated a softening of ligaments and tendons around the joint that would lead to internal joint disruption. His view was that work of the nature described by the applicant was of sufficient force to damage the already softened joint structures. This hastened the onset of pain and the disability of the underlying degenerative condition. He described pain along with joint destruction with subluxation, and attenuation of tendons and ligaments in the affected parts of both wrists. The condition was described as permanent and irreversible.
In his written statement, Dr Kalamaras advised Ms Barrett needed to see a rheumatologist for accurate diagnosis and medical treatment. He also offered joint arthrodesis in the thumbs to reduce pain.
Dr Cohen
Dr Cohen was the applicant’s treating pain manager and rheumatologist. In his reports he describes the history of Ms Barret’s condition and the effects it has had on her work and lifestyle.[5] He made recommendations for ongoing management. He opined the condition has been made worse by work. He said the pain was brought on by movement of the joints. The pain is caused in part by the shedding of bone derived crystals into the joints. This pain seems to be self-limiting and temporary. But there was a further source of pain. As wear in the joint cartilage progresses, subchondral nerve endings become exposed and further movement causes pain. As cartilage cannot renew itself the nerve endings remain exposed and pain on movement becomes permanent. Dr Cohen said that this was emerging knowledge.
[5] Exhibits 10 and 11.
In his report of May 8 2013 Dr Cohen addresses some of the issues raised by Dr Hazelton in his report. Both identified the same underlying structural pathology of the wrists via x-rays and scans. Dr Cohen commented on Dr Hazelton’s failure to make reference to any condition affecting the Applicant’s thumbs despite the right thumb being a major site of her complaint. Dr Cohen disagreed with Dr Hazelton’s assertion that the applicant had been developing STT osteoarthritis over many years which has become symptomatic as part of the natural history of the condition. Dr Cohen’s view is that osteoarthritis is not an intrinsically symptomatic condition. The presence of structural change neither predicts symptoms nor identifies their mechanism should they develop. By contrast osteoarthritic joints may become symptomatic when they are mechanically overused.
Dr Cohen also took issue with Dr Hazelton’s assertion that the applicant’s wrists would have become symptomatic irrespective of their usage pattern. Dr Cohen said:
A very important distinction needs to be made between the development of structural osteoarthritis and the generation of symptoms attributed thereto. The former may well be an “age, gender and constitutionally related” condition that, in the absence of discrete injury, may not [be] caused by work patterns. However the generation of symptoms in a situation that is not intrinsically symptomatic draws attention to the usage pattern of the part.[6]
[6] Exhibit 11, p. 2.
Dr Cohen added there has been bony remodelling of Ms Barrett’s first MCP joint and early osteoarthrosis of the first carpometacarpal joints. It follows the mechanics of her hand function have changed over time. Dr Cohen denied that the applicant’s problems are due to asymptomatic wrist arthrosis. He was of the view her symptoms are attributable to the nature of her work tasks intersecting with the abnormal mechanical attitude of her hands, especially in pinch grip mode. His final conclusion is that if the applicant had not been performing work tasks as earlier described, it is unlikely that she would have developed the clinical problem that caused her to cease work.
Dr Hazelton
Dr Hazelton produced two reports that deny work or any other activity aggravates the underlying condition of an erosive arthropathy.
Dr Cohen noted there are some important findings about the thumbs not mentioned by Dr Hazelton in his reports. That is unfortunate. We also note Dr Hazelton referenced and provided copies of three papers which addressed peripheral aspects of the case without really establishing their relevance to the matter under consideration which is ‘does activity aggravate an underlying condition of erosive arthropathy.’ When questioned whether he had any references that supported his view, he said there were many such papers but could not identify them. Dr Hazelton also appeared dogmatic in his responses to questions – for example, in response to questions from Mr Grey on behalf of the applicant over the relevance of a cut to the applicant’s wrist.
We prefer the views of Drs Cohen and Kalamaras. They provided clear reasons for their opinions and described anatomical changes that may be attributable to repetitive movement in the workplace or elsewhere (although we have not been provided with any evidence of other occasions of consistent repetitive movement apart from those reported in the workplace). We acknowledge their explanations were subtly different: Dr Kalamaras’ experience and findings of joint dislocation when force is applied against softened joint ligament and tendons set the scene for asymptomatic conditions to become symptomatic, while Dr Cohen referred to an asymptomatic condition converting to a painful condition by the exposure of subchondral nerve endings largely brought about by use of a mechanically disrupted joint structure. But the conclusion in each case is the same: repetitive movement like that demonstrated in the operation of the barcode sorter may contribute to the aggravation of the applicant’s underlying condition. In all the circumstances, the medical evidence suggests the work-related factors are the best explanation for what has occurred.
CONCLUSION
We are satisfied the medical evidence establishes the applicant’s underlying left and right wrist condition was aggravated by repetitive work in the respondent’s mail centre in Bundall. In those circumstances, the decision under review must be set aside. We decide in substitution that the respondent is liable for the aggravation of that condition under s 14 of the SRC Act.
I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.
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Associate
Dated 30 July 2013
Date of hearing 16 & 17 May 2013 Counsel for the Applicant
Solicitors for the Applicant
Counsel for the Respondent
Leo Grey
Emanuel Solicitors
Charles Clark
Solicitors for the Respondent Sparke Helmore Lawyers
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