Fleeting and Australian Postal Corporation
[2002] AATA 1214
•26 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1214
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2001/88
GENERAL AMINISTRATIVE DIVISION )
Re PETER MICHAEL FLEETING
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M J Sassella, Senior Member Dr M D Miller AO, Member
Date26 November 2002
PlaceCanberra
Decision The tribunal affirms the decision under review. The applicant is entitled to no costs associated with the application.
..............................................
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – rotator cuff disease in left shoulder – whether disease aggravated by activities in employment – work as mail sorter – whether work as mail sorter aggravated rotator cuff disease – no injury found by Tribunal
Safety, Rehabilitation and Compensation Act 1988 ss 4(1) ("ailment", "disease", "injury"), 14(1)
Casarotto v Australian Postal Corporation (1989) 86 ALR 399
REASONS FOR DECISION
26 November 2002 Mr M J Sassella, Senior ember Dr M D Miller AO, Member
THE APPLICATION
This is an application to the Administrative Appeals Tribunal ("the tribunal") by Peter Michael Fleeting ("the applicant"), born 3 April1957 (T1). The applicant seeks review of a decision of a delegate in the Australian Postal Corporation ("Australia Post", "the respondent") dated 8 January 2001 (T74) which affirmed a primary decision dated 9 November 2000 (T65). The decision under review was the denial of any liability on the part of Australia Post for the degenerative condition affecting Mr Fleeting's left shoulder.
THE HEARINGThe tribunal convened a hearing in this matter in Canberra. Mr R Livingstone of counsel represented Mr Fleeting while Mr B Skinner of counsel represented Australia Post. Oral evidence came from Mr Fleeting, Dr G Stubbs, orthopaedic surgeon and Dr J C Downes, orthopaedic consultant. The following documents were entered into evidence and marked as exhibits as follows:
Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T84) provided by the respondent.
Exhibit A1 – Applicant's amended statement of facts and contentions, 17 May 2002.
Exhibit A2 – Report by Dr R J Scott, occupational physician, 30 May 2002.
Exhibit A3 – Report by Dr Stubbs, 13 July 2001.
Exhibit A4 – Report by Dr Stubbs, 4 July 2001.
Exhibit A5 – Article, Musculoskeletal Disorders and Workplace Factors, edited by B P Bernard, US Department of Health and Human Services, July 1997.
Exhibit A6 – Report by Dr Stubbs, 2 October 2001.
Exhibit A7 – Report by Dr Stubbs, 7 November 2001.
Exhibit A8 – Report by Dr Stubbs, 9 January 2002.
Exhibit A9 – Australia Post brochure, All In a Day's Work, photograph of "ULD".
Exhibit A10 - Australia Post brochure, All In a Day's Work, photograph of "VSD".
Exhibit R1 – Respondent's statement of facts and contentions, 11 October 2001.
Exhibit R2 – Report by Dr Downes, 23 April 2001.
Exhibit R3 – Report by Dr Downes, 5 July 2001.
Exhibit R4 – Report by Dr Downes, 2 September 2002.
Exhibit R5 – Report by Dr D S Elder, occupational physician, 31 May 2002.
LEGAL PRINCIPLES
In order to qualify for compensation in accordance with s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") the applicant must have suffered an injury resulting in incapacity for work or an impairment.
The applicant will have suffered an injury in accordance with the definition of "injury" in s 4(1) of the Act if he has a disease as defined in s 4(1) or an injury, other than a disease, being a physical or mental injury arising out of, or in the course of, his employment with the respondent, or an aggravation of a physical or mental injury where the aggravation arose out of, or in the course of, his employment with Australia Post.
If the applicant relies on an injury in the nature of a disease, the tribunal will have to be satisfied that Mr Fleeting has an ailment as defined in s 4(1) of the Act, or an aggravation of an ailment, where Mr Fleeting's employment with Australia Post contributed in a material degree to the ailment or aggravation.
Mr Fleeting claimed for work-related left shoulder muscular pain (T30). This was said to have been first noticed on 13 February 2000, although the incident report referred to tenderness and pain from three weeks earlier.A party in proceedings before the tribunal bears no legal onus of proof. However, if Mr Fleeting is to succeed the tribunal will need to satisfied on the balance of probabilities, based on the totality of the evidence, that Mr Fleeting has suffered an injury under the Act. It is therefore advisable for Mr Fleeting to ensure that all evidence favourable to him is before the tribunal. Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:
"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.
"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:
'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:
"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."
"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."
THE EVIDENCE
Mr Fleeting has a history of shoulder problems. On 27 October 1993 he had muscular pain in his left shoulder (T9) which came on when he was tipping items from a heavy bag. On 23 September 1996 he had muscular pain in the right shoulder (T11), brought on when he was emptying a tub of small parcels into a small parcel bin. On 4 February 1997 he suffered severe muscle pain in the right shoulder when sorting parcels (13). On 12 October 1999 he had severe muscular pain in the right shoulder when he tried to free a jammed gate in an Australia Post item called a unit load device ("ULD"). He felt pain in the right shoulder. This last incident led to a compensation claim which was accepted. On 13 April 2000 Dr G Stubbs, an orthopaedic surgeon, operated on the right shoulder to repair the rotator cuff (T36). As recently as 9 November 2000 the respondent signified (T65) that it continued to accept liability for the right shoulder problem.
mr fleeting (the applicant)Mr Fleeting's evidence regarding the left shoulder was as follows. In the incident report (T30) he said that, because of the right shoulder injury and the increase of pain in the right shoulder, he compensated by using the left arm more. He began to feel tenderness and slight pain in the left shoulder.
In oral evidence Mr Fleeting explained how he had been working for some years at a vertical sort device ("VSD"). The VSD is essentially a set of pigeonholes extending approximately from a little below waist level to eye level. Mr Fleeting blamed the VSD for the injury to his right shoulder. Mr Fleeting is right-handed and a substantial proportion of his hand movements when sorting small letters were for the purpose of sorting into pigeonholes above shoulder level, especially mail addressed to Wagga and Albury. Mr Fleeting suggested that he had to sort 1,500 letters an hour, although he later conceded that there is no Australia Post standard that requires this rate of output by a sorter.
Between 12 October 1999 and 11 February 2000, Mr Fleeting said, he sorted into the VSD using his left arm. He worked from 6.00 am to 3.36 pm, with breaks at 8.00 am (15 minutes), 11.00 am (30 minutes) and 1.15 pm (15 minutes). He again sorted at the 1,500 an hour rate.
By January 2000 Mr Fleeting said he felt soreness in the left shoulder. It grew worse. On 11 February 2000 Mr Fleeting saw his supervisor and mentioned that he had pain in both shoulders. He saw Dr S L Lo, a general practitioner, on that day and the doctor prescribed restricted duties from that day until 11 March 2000 (T17/73). The restrictions were in hours (only four hours a day for four days a week), lifting (2 kg), bending, twisting, work above shoulder height, keyboard work, repetitive elbow and wrist work, pushing and pulling. He had to vary activity every half-hour. He returned to work engaged in labelling and ticketing letter trays, etc. He did some sorting into a smaller sorting frame for Goulburn. The left shoulder remained troublesome. He has never since then used the VSD.
Mr Fleeting's right shoulder surgery took him off work altogether from 12 April to 7 July 2000. He returned to work on 7 July 2000 on restricted duties. He worked three hours a day on four days a week. His work largely involved the optical character reader ("OCR"). The OCR required loading. Letter bundles were transferred to the OCR. Mr Fleeting was to take hand-sized bundles of letters to the OCR and place them on the OCR. The right shoulder improved gradually. By November 2000, Mr Fleeting said in evidence, he was back to working full hours.
In October 2000 Mr Fleeting saw his medical advisers about the left shoulder. They ordered x-rays and an ultrasound of the left shoulder (T55A). Mr Fleeting saw Dr Stubbs about the left shoulder (T67).
Mr Fleeting was also working at the flat sorting machine ("FSM") and found he could not keep up with the speed requirements. This involved lifting trays or tubs of mail, feeding bundles of letters and keying. People in the keying room ran out of work when Mr Fleeting could not keep up with his part of the process.
In March 2001 the right shoulder again became painful. Mr Fleeting was relieved of OCR and FSM work. He mainly sorted small parcels and did labelling.
On 28 September 2001 Mr Fleeting had left shoulder surgery (ex A6). He returned to work on 31 January 2002 on restricted duties which still apply. At present Mr Fleeting "self-manages. He finds his own work. He usual does small parcels."
In cross-examination the following was established:
Mr Fleeting worked for Australia Post for 10 years with no shoulder problems. Between 1993 and 1999 the left shoulder gave no trouble. Between 1986 and 1999 no Australia Post duties caused Mr Fleeting shoulder discomfort except for incidents in 1993, 1996 and 1997. The October 1999 incident involving the jammed ULD gate affected only the right shoulder. On 1 November 1999 x-rays and an ultrasound of the right shoulder were taken (T20). On that date there was no concern about the left shoulder.
Before October 1999 Mr Fleeting played cricket and touch football. He had no injuries.
When Mr Fleeting was recuperating at home from the right shoulder operation in April to July 2000 he was doing nothing that aggravated the left shoulder. The left shoulder condition was stable in that period.
Mr Fleeting has not worked at the VSD since at least July 2000.
Mr Fleeting's case was that it was work on the VSD from October 1999 to February 2000 that caused his left shoulder problems. However, he had worked on the VSD before 1999 without it causing problems. Mr Fleeting said he worked seated at the VSD. It was when he was seated that the pigeonholes required him to raise his arm above his shoulder height. He could have used the VSD in a standing position, thereby obviating the need to raise his arm as high. None of Mr Fleeting's work after October 1999 absolutely required him to work at or above shoulder level. There was no restriction preventing him from standing when using the VSD. Mr Fleeting saw his solicitors in November 2000 (T69). They wrote, on his instructions, that Mr Fleeting's mail sorting was "frequently above shoulder height". Mr Fleeting refused to concede that it was his choice to sort above shoulder height. He said that Australia Post provides chairs and its ergonomic training shows the chairs in use.
Mr Fleeting was given rehabilitation from November 1999. He agreed that at any time from October 1999, when he was working on the VSD, he could have told his general practitioner, Dr Stubbs or the rehabilitation provider if he was having problems using the VSD. Mr Fleeting said that he did tell the rehabilitation manager that his left should was becoming sore. The tribunal notes relevant references in rehabilitation reports. On 9 December 1999 (T25) the rehabilitation manager referred to problems caused the right shoulder by the VSD. On 24 March 2000 (T34) the report mentioned that problems with the left shoulder were beginning. So far as the medical certificates and reports were concerned, the first report of left shoulder problems was on 11 February 2000 by Dr Lo (T17/73). Dr Stubbs did not address it until 16 November 2000 (T67).
Mr Fleeting agreed with Mr Skinner, Australia Post counsel, that the left shoulder began "clunking" in November 2000. Between August that year and November this had begun as a minor "clicking". Mr Fleeting then suggested that the clunking really began in August 2000. He saw the cause as his work on the OCR and FSM equipment.
There was no one precipitating event that brought about the left shoulder problems.
dr g stubbs
Dr Stubbs, who had operated on both of Mr Fleeting's shoulders, gave oral evidence. His major evidence came with Mr Skinner's cross-examination. He said that Mr Fleeting's left shoulder had been quite good in December 1999. That shoulder had normal external rotation. For Dr Stubbs awareness of the left shoulder problems began on 15 November 2000 when Mr Fleeting reported increasing pain over the previous nine months. There was greater shoulder weakness in the left than in the post-operative right shoulder. Dr Stubbs was unaware of Mr Fleeting's earlier shoulder problems in 1996 and 1997 (right shoulder) and in 1993 (left shoulder).
Dr Stubbs had found a rotator cuff tear in the left shoulder when he operated. Mr Skinner queried whether it is possible to discern the age of a rotator cuff tear. Dr Stubbs said that this was possible in only the first six months of the tear. The tear in the left shoulder was from an uncertain date. He could not say whether it was from a frank injury or degeneration. Mr Fleeting had suggested no frank injury to Dr Stubbs.
Dr Stubbs addressed the possible connection between the left shoulder problem and the Australia Post work. He had accepted Mr Fleeting's suggestion of a connection. He had not seen the Canberra Mail Centre, where Mr Fleeting works. He had had no access to studies on Australia Post workers and their shoulder problems. He had recorded no notes as to the aetiology of the left shoulder problems.
Dr Stubbs said that degenerative change in the shoulder is common in the community. Work probably does not cause degeneration but it can aggravate the symptoms. Dr Stubbs was unaware of anything in particular that aggravated the left shoulder symptoms. In his report of 16 November 2000 (T67) Dr Stubbs had written that "Mr Fleeting would have a reasonable claim to make that his left shoulder became painful or at least became more painful because of the period of time he had his right shoulder in a sling after his [right shoulder] surgery". Dr Stubbs told Mr Skinner that Mr Fleeting had not reported that his left shoulder worsened when his right arm was in a sling. Dr Stubbs had no records regarding the left shoulder pain when the right arm was in a sling. Mr Skinner suggested that his remark in T67 had been guesswork. Dr Stubbs did not dissent.
As regards Mr Fleeting's work for Australia Post from July 2000, Dr Stubbs had no history of anything responsible in that work for an upsurge of left shoulder symptoms.
Dr Stubbs addressed the connection between repetitive work and shoulder problems. He repeated that degenerative changes are common in the community. Where a person engages in highly repetitive work with awkward shoulder posture and static shoulder loads the problem can be aggravated. Dr Stubbs had referred to ex A5 where it was written that:
"There is evidence for a positive association between highly repetitive work and shoulder MSDs [ie musculoskeletal disorders]. Only three studies specifically addressed the health outcome of shoulder tendinitis and these studies involve combined exposure to repetition with awkward shoulder postures or static shoulder loads. The other six studies with significant positive associations dealt primarily symptoms. There is insufficient evidence for a positive association between force and shoulder MSDs based on currently available epidemiologic studies. There is evidence for a relationship between repeated or sustained shoulder postures with greater than 60 degrees affliction or abduction and shoulder MSDs. There is evidence for both shoulder tendinitis and non-specific shoulder pain. The evidence for specific shoulder postures is strongest where there is combined exposure to several physical factors like holding a tool while working overhead."
Dr Stubbs agreed with reservations that, to make a connection between Mr Fleeting's work and his left shoulder musculoskeletal disorder he would need to see Mr Fleeting at work. He said that he had relied on Mr Fleeting's history. It would be preferable if he could see whether Mr Fleeting worked with awkward postures, how he did his work and how much of it was above shoulder height. He had assumed Mr Fleeting engaged in repetitive movements. He had assumed Mr Fleeting stood at the VSD and still had to sort to eye level and above. Mr Fleeting had not raised his OCR and FSM work with Dr Stubbs. Sorting had been presented by Mr Fleeting as the sole cause of his problems. Dr Stubbs considered that the pain Mr Fleeting had in his left shoulder in February 2000 came from sorting work.
dr j c downesDr Downes provided five reports, some in response to reports by Dr Stubbs – T61 (24 October 2000), T81 (15 March 2001), ex R2 (23 April 2001), ex R3 (5 July 2001) and ex R4 (2 September 2002). It is fair to say that he tended to the view that Mr Fleeting's left shoulder rotator cuff problems were degenerative and constitutional. He did not regard the movements required of Mr Fleeting in his work as involving sufficient above-shoulder activity for them to have contributed in any material way to the problem.
In T61 Dr Downes offered an interesting excursus on rotator cuff disease. Rotator cuff muscles through a lifetime are subjected to considerable frictional movement. The rotator cuff causes problems in human beings significantly and frequently. He said that in younger people tearing of a relatively normal rotator cuff is quite common and so people such as Shane Warne, Pat Rafter and Greg Norman have required rotator cuff surgery.
With increasing age more wear and friction occurs. Degenerative change becomes the norm. The tendon then becomes inflamed and significant tears can occur in the tendon, even without trauma. The majority of patients with this problem recover over time. The condition is frequently bilateral, although it may occur in one shoulder in advance of occurring in the other shoulder. Dr Downes wrote:
"It is not specifically related to the dominant shoulder. It is not specifically related to overuse. The time overuse becomes important is if the job involves consistent and repetitive abduction of the shoulder above shoulder height. Therefore, the person who swings a tennis racket [sic] or who puts gyprock on ceilings is going to have more trouble than the person who is working at a bench.
…
"If you, therefore, analyse the left shoulder, you are dealing with Rotator Cuff Disease rather than an injury. I, therefore, asked the patient today to describe the job he has done since the surgery. The first thing he pointed out to me was that during the three months he was off work following the surgery, the left shoulder worsened. He then has been back at work on light duties and he pointed out to me today that the restrictions have been enforced at work. He has not been doing much in the way of raising his arms above shoulder height. However, when he has had to do it, he has tended to use the left shoulder and this has tended to aggravate the shoulder. The result is that his right arm is getting better and his left arm is getting worse.
…
"… Theoretically he has to find a job which minimises the activities of lifting above shoulder height but, from my understanding of the discussion today, such a job has been found for him.
"I cannot see, therefore, how the work he has been doing for Australia Post would constitute a significant contribution to the left shoulder problem. …"Dr Downes concluded that the left shoulder problem was the result of degenerative wear from rotator cuff disease.
In T81 Dr Downes said that, although Mr Fleeting would have used his left shoulder a little more frequently for everyday usage when recovering from the right shoulder surgery, rotator cuff disease is a bilateral condition and many patients develop symptoms in both shoulders in time. "On the basis of probability, therefore, the left shoulder problem is NOT due to overuse due to enforced restriction of use of the right arm", said Dr Downes.
In ex R2 Dr Downes reinforced that the reason why the use of the left arm during recuperation would not have aggravated the left shoulder rotator cuff disease was that Mr Fleeting engaged in normal human activities at that time. By this time, April 2001, Mr Fleeting's right shoulder was deteriorating, as was the left. Mr Fleeting discussed his work and said that he was not working in a job that required him to reach above shoulder height. Dr Downes allowed that the left rotator cuff may have developed a tear but he saw that as something that can occur in the absence of trauma and purely through degeneration. Dr Downes favoured Cortisone injections in both shoulders. Dr Downes still saw Mr Fleeting as performing normal, everyday activities with his left shoulder and he still saw such activities as not aggravating the underlying condition.
In ex R3 Dr Downes addressed the 1993 left shoulder problem. At the time it was diagnosed as supraspinatus tendonitis. Dr Downes thought that correct but saw it as a chronic frictional degenerative condition that tends to flare up in some people. However, it had settled and caused no further problems. He saw it as irrelevant to the events in 2000. Such flare-ups and settling down are typical of rotator cuff degeneration. He considered that a shoulder can be temporarily aggravated by an incident. However, if the symptoms persist (in the absence of continuing incidents), then they are attributable to underlying degeneration.
In ex R4 Dr Downes referred to the material in ex A5 (see paragraph 23 above). Dr Downes pointed out that the findings in that research refer to a patient who is involved in an occupation where he or she constantly keeps arms above shoulder height, "a position in which there is impingement of the tendon against the bony ridge of the shoulder". He said that Mr Fleeting was never in that scenario.
In cross-examination Mr Livingstone put to Dr Downes that Mr Fleeting had between October 1999 and February 2000 worked a nine-hour day, four days a week, sorting in a seated position, using his non-dominant left hand, sorting 1,500 items an hour into pigeon holes. He asked whether that suggested a causal relationship between Mr Fleeting's work and his shoulder pain. Dr Downes responded that he would need to see Mr Fleeting's workplace. If Mr Fleeting could show a lot of shoulder movement with arms raised above shoulder height then, yes, there could be a connection. There would have to be excessive impingement.
other medical evidenceMuch of the documentary medical evidence related to the right shoulder which is not in contention in the current matter. Of the remainder, the following may be relevant:
Dr A Hodgkinson, an orthopaedic surgeon, wrote on 14 March 2000 (T33) that Mr Fleeting had no significant left shoulder disability. At examination on 13 March 2000 Mr Fleeting complained of "occasional phases of discomfort in the left shoulder". Examination of the left shoulder showed no "restriction in range, movement or focal sensitivity".
X-rays and an ultrasound of the left shoulder taken on 6 October 2000 suggested only that there could be minor tearing in the supraspinatus tendon (T55A).
Dr R J Scott, an occupational physician, wrote on the left shoulder on 30 May 2002 (ex A2). He noted that there had been a left shoulder arthroscopy in August 2001 and surgery in September 2001. Mr Fleeting had been off work from 28 September 2001 to 31 January 2002. Dr Scott was an adherent of the Stubbs view that the left shoulder problem stemmed from overuse brought about by problems in the right arm.
Dr D S Elder, an occupational physician, reported on 31 May 2002 (ex R5) and preferred Dr Downes's opinion to that of Dr Stubbs. He saw the left shoulder symptoms as not related to the right shoulder.
COUNSEL'S SUBMISSIONS
mr livingstone
Mr Livingstone submitted that Mr Fleeting's use of his left arm for sorting some 13,050 items a day between October 1999 and February 2000, much of it destined for Albury and Wagga and requiring sorting into pigeon holes at the left above shoulder height, produced left shoulder pain that never left the applicant. He described Mr Fleeting as a truthful witness and descried Dr Downes as having concentrated on the period after the left shoulder pain became entrenched.
Mr Livingstone drew support from certain comments by Dr Elder. Before addressing those, some context from that report is necessary. Dr Elder was asked about the connection between Mr Fleeting's right and left shoulder conditions. He discussed the views of Drs Stubbs and Downes. He accepted that there was evidence of a relationship between repetitive or sustained shoulder postures with greater than 60? of flexion or abduction and shoulder musculoskeletal disorders. The strongest evidence for a positive association is where there is combined exposure to several physical factors such as holding a tool while working overhead. He said that if Mr Fleeting was performing only everyday activities, he could not envisage any mechanism involving such movements of the left shoulder. He said that, even if Mr Fleeting was performing more activity with his left hand than normal, this was not a risk factor.
Dr Elder proceeded to say that Mr Fleeting had told him that he did report an injury to the left shoulder while performing repetitive workplace duties at above shoulder height such as sorting. Dr Elder thought that, if this were correct, then liability should be accepted.
Mr Livingstone referred also to Dr Scott's report (ex A2) which supported Mr Fleeting. Dr Scott's report featured the following. He took a history of Mr Fleeting ceasing work in February 2000 because of "pain in both arms". Following surgery on the right shoulder in April 2000 Mr Fleeting "still had pain in his left shoulder". During Mr Fleeting's return to work from July 2000 Mr Fleeting's left shoulder pain became worse. Dr Scott was dismissive of Dr Downes's report of 24 October 2000, describing it as "rather prolonged" and referring to Dr Downes, incorrectly, as Dr M Downes. He is in fact Dr J C Downes. Dr Scott homes in on Dr Downes's references to Mr Fleeting engaging in normal human activities with his left hand. Dr Scott represents this as a comment on Mr Fleeting's mail sorting activities. He then says that sorting mail into pigeonholes with one's non-dominant arm is not a normal human activity. He says that he has visited a mail centre where the activities, in his opinion, are not normal everyday activities. He does not, however, identify what is problematic about them. He misunderstands the point made by Dr Downes when referring to athletes, Warne, Rafter and Norman. He considers that they are identified as engaging in normal activities whereas Dr Downes referred to them as people whose activities expose them to particular injury or flare-ups. Dr Scott's conclusions include that Mr Fleeting's left shoulder condition "is a result of abnormal overuse of this non-dominant arm because of incapacity in his dominant right arm". He says, "The work at the Mail Centre is often repetitive, especially in the 'light duties' areas, and this makes such worker prone to overuse damage and aggravation of any asymptomatic shoulder situation which may be pre-existent …". He believed that Mr Fleeting's left shoulder condition was, on the balance of probabilities, related to his work.
Mr Livingstone said that Drs Stubbs, Scott and Elder supported the applicant's case and that even Dr Downes thought a link between the condition and work was possible.
mr skinnerMr Skinner, for the respondent, submitted that the dispute was not medical, but was factual. He said it is clear that Mr Fleeting has degeneration in both shoulders. The left shoulder showed indications of this as early as 1993; the right shoulder in 1996. The crucial issue is whether the left shoulder attracts compensation because of work by Mr Fleeting at the VSD between October 1999 and February 2000.
The respondent resists liability because it does not accept that Mr Fleeting engaged in prolonged repetitive flexion above left shoulder height.
Mr Skinner addressed the wider factual issues:
Concerning Dr Stubbs's views, he noted that Dr Stubbs was not consulted about the left shoulder until November 2000. He was given a rough estimate of when the left shoulder problems first arose. He referred to February 2000 in one report (T67) and January in another (T68). Dr Stubbs was in no position to examine any work connection to the disease until November 2000.
Mr Fleeting told Dr Scott (ex A2) that the left shoulder began "clunking" in August 2000. This precipitated action by his general practitioner. In Mr Skinner's view this represented a form of onset of the left shoulder condition. Mr Skinner placed this as occurring in October 2000. This would be because Dr Lo, Mr Fleeting's general practitioner, referred to the left shoulder problem only once in February 2000 until Dr Lo did so again on 29 September 2000 (T17/80). On 1 September 2000, for instance, Dr Lo prescribed restricted duties but referred to only the right shoulder (T17/79). Dr Lo placed him on restricted duties for all of October 2000 and referred him for x-rays and ultrasound on 6 October 2000 (T55A). Mr Skinner submitted that this was "good evidence". Although Mr Fleeting related the left shoulder problem to sorting at the VSD, the left shoulder problem became significant only in late September-early October 2000. He queried how that could relate to VSD sorting that had ceased in February 2000. He suggested that there had been a lengthy delay before the sorting had its maximum effect.
Mr Fleeting had not identified any particular task at work after February 2000 that might have caused the flare up in left shoulder symptoms. The tribunal notes that this is not entirely correct. Mr Fleeting suggested the OCR and FSM work as a cause in his cross-examination but he offered no explanation why this might be so. Certainly the functions involved in that work involved no clear activity above shoulder level.
Even in February 2000 when Mr Fleeting had referred to left shoulder problems and he was sent to Dr Hodgkinson, Dr Hodgkinson had found no significant left shoulder disability (T33). Mr Skinner submitted that, if any of Mr Fleeting's work between October 1999 and February 2000 had been implicated in causing a problem in the left shoulder, that would have been clear to Dr Hodgkinson on 14 March 2000 when he saw Mr Fleeting. It seems that Mr Fleeting had some problems in January-February 2000, but they were much worse by the end of October 2000. This was much what Dr Downes found. Even in October 2000 the ultrasound showed little of significance. This suggests that the deterioration was rapid from then on, when Mr Fleeting was keeping very much to restricted duties.
FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
The tribunal finds that there has been no injury under the Act in respect of Mr Fleeting's left shoulder. The tribunal finds that there was no injury to Mr Fleeting affecting his left shoulder between October 1999 and February 2000. There was no relevant physical or mental injury arising out of, or in the course of, his work for Australia Post at that time. Likewise, there was no aggravation of a pre-existing disease to which Mr Fleeting's work made a material contribution. The tribunal regards the following material as indicative of such a situation.
First, the tribunal notes that, although Mr Fleeting lodged an incident report on 16 February 2000 (T27) referring to left shoulder pain, he lodged no claim for compensation for that alleged injury. It is to be expected that an employee such as Mr Fleeting will lodge a compensation claim if he considers the medical condition allegedly associated with work sufficiently serious. The tribunal notes that there is nothing in the T documents to suggest that Mr Fleeting pursued the left shoulder situation with Australia Post until the respondent referred to the matter on 9 November 2000 in a determination primarily relating to the right shoulder (T65). This suggests to the tribunal that the left shoulder pain in February 2000 was not serious.
Second, the tribunal notes that Mr Fleeting did not raise any concerns about his left shoulder with his rehabilitation managers on 9 December 1999, although he did discuss right shoulder problems with them at that time (paragraph 17 above). Dr Stubbs had found the left shoulder "quite good" upon examination in December 1999 (paragraph 18 above). The first discussion of left shoulder problems in his rehabilitation occurred in March 2000 (paragraph 17 above). The first report of left shoulder problems to Dr Lo was on 11 February 2000 (paragraph 17 above). To that point there had been nothing. This is quite some time after Mr Fleeting began using the VSD in a manner favouring the left hand. Dr Hodgkinson in March 2000 found no significant left shoulder disability (T33). Dr Lo, as late as September 2000 was not imposing work restrictions in respect of the left shoulder, although Dr Lo was imposing restrictions in respect of the right shoulder (T17/79). The tribunal considers that there was a noticeable worsening of the condition at some time between August and November 2000. Mr Fleeting referred to the onset of a "clunking" in the left shoulder. Dr Lo referred Mr Fleeting for investigations and to see Dr Stubbs. Dr Lo also imposed work restrictions referable to both shoulders in late September 2000 (T17/80).
The collected evidence in paragraph 45, in the tribunal's view, suggests that the onset of serious left shoulder symptoms was in August 2000, or later. In the tribunal's view that is at a time too remote from the work on the VSD for that work to have been a cause of the problem. The tribunal finds that there is nothing in the description of the OCR and FSM work done by Mr Fleeting (described T46/150) requiring him to adopt postures and loads of a type and for the durations required for musculoskeletal disorders of the shoulder to have resulted, according to the evidence of Drs Downes, Stubbs and the article in ex A5.
On this matter of there being no clear cause of the problems in the left shoulder (other than degeneration), the tribunal notes the following:
Dr Stubbs in oral evidence agreed that he had noted no frank injury as a cause of the left shoulder problem (paragraph 18 above),
Dr Stubbs had no notes suggesting any aetiology (paragraph 20 above).
Dr Stubbs's suggestion that Mr Fleeting may have overused his left arm while his right arm was in a sling following surgery (relevant to the period April-July 2000) was not based on anything told him by Mr Fleeting. It was supposition on his part (paragraph 21 above).
Dr Stubbs could see nothing in Mr Fleeting's Australia Post duties post-February 2000 that could have caused an upsurge in his left shoulder pain (paragraph 22 above).
Dr Stubbs had assumed that Mr Fleeting engaged in repetitive movements. He had assumed Mr Fleeting stood at the VSD and still had to sort to eye level and above. Mr Fleeting had not raised his OCR and FSM work with Dr Stubbs. Sorting had been presented by Mr Fleeting as the sole cause of his problems (paragraph 24 above). This was, of course, inaccurate.
The above, then, is a summary of the evidence that led the tribunal to finding that there was no injury as required under the Act. It is necessary, however, to address why some of Mr Livingstone's submissions were not accepted.
The tribunal did not accept that Dr Downes had concentrated on the period after Mr Fleeting's symptoms became entrenched, as was suggested above in paragraph 35. Rather, Dr Downes tended to reason from his broad experience of rotator cuff syndrome and see how Mr Fleeting's history accorded with the usual picture. He had a full and accurate history of Mr Fleeting's experiences from October 1999.
As discussed above in paragraph 37, Mr Livingstone drew support from certain remarks made by Dr Elder. The tribunal notes that Dr Elder recommended acceptance of the claim by Mr Fleeting in respect of his left shoulder if he had indeed reported an injury to the left shoulder while performing repetitive workplace duties at above shoulder height, such as sorting. With all due respect to Dr Elder, he was unaware of the remaining history of events, as recounted by the tribunal in paragraphs 44-47 above. The tribunal doubts that he would recommend acceptance of the claim if he was aware of that material.
Mr Livingstone relied on Dr Scott's report. As may have been clear in paragraph 38 above, the tribunal found some problems with Dr Scott's report. In general terms it was a negative response to Dr Downes's reports. Aspects of that response misrepresented what Dr Downes had said and meant. The tribunal was frustrated by Dr Scott's ready acceptance that mail centre activities are intrinsically calculated to cause problems such as shoulder problems, even in light duties work, without particularising how and why this is so. In the absence of more positive and specific material to support his views, the tribunal found Dr Scott's views of limmited use.
CONCLUSIONThe tribunal has found that Mr Fleeting has no left shoulder injury under the Act. Australia Post therefore has no obligation to pay compensation under the Act to Mr Fleeting. Mr Fleeting is entitled to no costs associated with this application.
DECISIONThe tribunal affirms the decision under review. The applicant is entitled to no costs associated with the application.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M D Miller AO, Member.
Signed: .....................................................................................
AssociateDates of hearing 5 and 6 September 2002
Date of decision 26 November 2002
Counsel for the applicant Mr R Livingstone
Solicitor for the applicant Higgins Solicitors
Counsel for the respondent Mr B Skinner
Solicitor for the respondent Australian Government Solicitor
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