Gattari and Australian Postal Corporation
[2008] AATA 56
•21 January 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 56
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1562
GENERAL ADMINISTRATIVE DIVISION ) Re ROSARIA GATTARI Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr M E C Thorpe, MemberDate21 January 2008
PlaceSydney
Decision The Tribunal SETS ASIDE the decision under review and remits this matter to the Respondent with the direction that the Applicant is entitled to the payment of compensation pursuant to s 14 of the Safety, Rehabilitation and Compensation Act 1998 for the ailment described as “temporary aggravation of carpal tunnel syndrome left wrist".
The question of costs is reserved for further submissions.
..................[sgd].....................
M D Allen Presiding Member
CATCHWORDS
WORKERS COMPENSATION – review of decision affirming prior determination denying liability for carpal tunnel syndrome – carpal tunnel syndrome connected with service – repetitive activity will give rise to carpal tunnel syndrome – repeated flexion and extension of wrist risk factors for carpal tunnel syndrome – evidence of performing repetitive activities with affected hand before clinical onset – civil standard of proof – strongest weight to be given to evidence is the technique of meta-analysis symptoms manifested at work – carpal tunnel syndrome due to underlying constitutional conditions and not applicant’s work – pain caused by work activity causing temporary aggravation of carpal tunnel syndrome left wrist – decision under review set aside
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 sections 4(1) and 14
Veterans’ Entitlement Act 1986 section 339
Military, Rehabilitation and Compensation Act 2004
CASE LAW
Vietnam Veterans’ Affairs Association of Australian NSW Branch Inc v Cohen & Ors (1996) 70 FCR 419
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Commonwealth Banking Corp v Percival (1988) 20 FCR 176
Commonwealth v Beattie (1981) 35 ALR 369
REASONS FOR DECISION
21 January 2008 Senior Member M D Allen
Dr M E C Thorpe, Member1. By application made the 14th day of November 2006 the Applicant sought review of a reviewable decision dated 21 September 2006 affirming a prior determination which denied liability for carpal tunnel syndrome.
2. There is no dispute that the Applicant suffers from CTS. This diagnosis is confirmed by Professor Sambrook and Drs McGill and Honner, all of whom examined the Applicant. In addition bilateral CTS was the diagnosis of the Australia Post Medical Practitioner, Dr Woolnough.
3. In evidence to the Tribunal the Applicant stated that she commenced employment with the Respondent in late 1999. Her employment was that of a part-time worker working 25 hours a week on night time shifts. Originally she started sorting small mail articles but was then allocated to sorting large letters. Her duties also included unloading letters from containers and emptying mail bags weighting up to 16 kg.
4. As she is left handed, the Applicant used to sort the letters by holding a bundle in her right hand and then using her left to place them into “pigeon holes” in a three level frame.
5. On a “slow” night the Applicant would sort eight to 10 letters a minute but on an “active” night would sort 15 to 20 letters a minute. Ms Hayes, a supervisor of the Applicant, stated that the average sort rate is 13 articles per minute.
6. During the night of either the 20th or 21st of July 2006 the Applicant started to feel pain in her left wrist and started to drop mail items. She then experienced pain in the fingers of her left hand and the back of the hand turned blue. Pain was also experienced in her left upper arm. At roughly the same time she started to have pain in her right hand but not as bad as the left.
7. Asked to demonstrate where she felt a pain, the Applicant indicated on area just above the carpal tunnel on the median aspect of her left wrist. She also indicated that pain was felt over the ulnar aspect of her left arm next to the wrist. Asked about the right arm, she indicated pain was felt over the lateral aspect of her right elbow extending up the arm to the shoulder.
8. The Applicant saw her General Practitioner on the 24th July 2006 and he issued her with a certificate requesting light duties. Originally the Applicant was given light duties for one week but was then again required to sort large letters and experienced pain. She then saw a Dr Nguyen (a locum for her usual Practitioner, Dr Yenson) who gave her a certificate stating she was unfit for work from 27 August 2006. She continued to receive certificates certifying absence from work because of incapacity for 9 to 10 weeks, which stated that she was unfit for work, but then Drs Woolnough and Yenson certified she was fit for light duties. As no light duties were available the Applicant remains absent from work.
9. Unfortunately the Applicant is not a good historian and different medical practitioners have recorded different histories as to her current pain levels. Professor Sambrook in his report of 21 March 2007 recorded a history of “fairly constant left arm pain, associated with pins and needles”. Dr Honner on 25 July 2007 noted pain in the right hand radiating up the forearm to the lateral aspect of the right elbow. The left hand was more painful and she could not pick up anything with it. Dr Stapleton noted there had been no changes in her symptomatology.
10. On the other hand Dr McGill noted that in the first four weeks after stopping work, her symptoms deteriorated (but) subsequently there had been a substantial improvement. Dr Rozario in a report dated 7 November 2006 noted that after being off work for the last 9 to 10 weeks there had been a 40 to 50 percent improvement in her symptoms.
11. The Applicant’s evidence was that the last time her hands felt numb was five to six months ago and it was six to seven months since she last had pain in her fingers. She still has problems with her left shoulder.
12. As stated above there is no doubt that the Applicant does have CTS bilaterally. Dr Rozario, Rheumatologist, to whom the Applicant was referred by her General Practitioner, has issued conflicting reports e.g. on 7 November 2006 she stated that “clinically the features are suggestive of CTS”. Whereas in a report to the Applicant’s solicitors dated 7 March 2007, she diagnosed overuse syndrome. In an earlier report to the Applicant’s General Practitioner dated 25 August 2006, Dr Rozario stated: “there were no objective signs of CTS”. We find that we can not make any decision based upon Dr Rozario’s opinions.
13. Chronologically the first specialist to see the Applicant for medico-legal purposes was Dr McGill, Rheumatologist. In his report of 18 December 2006 to the Respondent he did not obtain a history of symptoms beginning at work. He had available to him nerve conduction studies performed by a Dr Rail and those studies demonstrated bilateral CTS worse on the left.
14. Dr McGill summarised his report by stating:
“I think her carpal tunnel syndrome is constitutional. Constitutional carpal tunnel syndrome typically presents in women in her age group. Her obesity increases her risk of the disorder. The fact that there had been no change in her physical activity (at work or elsewhere) in the weeks and months prior to the onset of her symptoms and that her symptoms deteriorated in the first month or so after she ceased work, argues strongly against a role for her work duties in her carpal tunnel syndrome.”
Dr McGill continued:
“Although, based on the history she provided, I think it is unlikely that her work duties influenced the level of symptoms that she experienced as a result of her carpal tunnel syndrome, I think repetitive work duties do have the potential to increase the level of symptoms experienced. Thus, if she were to return to her previous normal duties there is a possibility that her symptoms of carpal tunnel syndrome could be aggravated. If that were to occur, the aggravation could persist for up to four weeks following cessation of those repetitive activities.”
15. Although in cross-examination Dr McGill agreed the work performed by the Applicant was highly repetitive, his opinion was that it was light work and thus would not have contributed to her CTS. The activity he stated had the potential to increase the symptoms, as opposed to underlying pathology, of the Applicant’s CTS but if this were so, the symptoms should have improved after ceasing work. In the Applicant’s case she had stated that they had deteriorated and this did not make sense to him, if it was alleged work was contributing to those symptoms.
16. Professor Sambrook, Rheumatologist, examined the Applicant on 5 March 2007. He diagnosed CTS and opined that her work was a cause.
17. In coming to his opinion that work was a cause of the Applicant’s CTS Professor Sambrook referred to a Meta-analysis of CTS by Moustafa et al and a Literature Review by Palmer et al carried out for the United Kingdom Injuries Advisory Council.
18. Dr Honner is an experienced Hand Surgeon. He examined the Applicant on 25 July 2007. His diagnosis was bilateral CTS clinically more severe on the dominant left side. It was his opinion that the bilateral CTS was due to underlying constitutional conditions and not the Applicant’s work.
19. Questioned by the Tribunal Dr Honner stated that the constitutional conditions he was referring to, was the Applicant’s sex, age (40-50) and weight. Cross-examined he conceded he had no experience of epidemiology but that his opinion was based on his clinical experience.
20. The Applicant was also examined by Dr Stapleton, who describes himself on his letterhead as a “Hand, Plastic and Reconstructive Surgeon” but he did not provide a Curriculum Vitae. Dr Stapleton’s opinion cannot be said to be objective but rather is a defence of the proposition that work was not a causal factor in the Applicant’s CTS. Notwithstanding this Dr Stapleton does say in his opinion “of cause if (sic) follows that repetitive activity will give rise to carpel tunnel syndrome”.
21. The tenor of Dr Stapleton’s opinion is best summed up by his comment:
“ I note with interest that Ms Gattari’s carpal tunnel syndrome has been sent to the Administrative Appeals Tribunal and as is so often the case, specialists in the field do not sit as Tribunal members. That seems as reasonable as hand surgeons sitting in judgement and making decisions on what might be legal opinions.”
Apart from his comment that repetitive activity will give rise to CTS we can gain no other useful evidence from Dr Stapleton.
22. Considerable criticism was made of the papers relied upon by Professor Sambrook by the Respondent. What must be kept in mind however is that it is not necessary for the validity of the opinion formed by Professor Sambrook, to go further and find a direct match of occupation to that of the Applicant in the said papers. The studies do make the point that sustained flexion of the wrist is a risk factor for CTS.
23. As to the nature of a meta-analysis as was put by Professor Sambrook in Exhibit A3:
“The Tribunal might ask what weight should be given to the technique of meta-analysis? The National Health and Medical Research Council of Australia (the peak Federal government body overseeing medical research in the country) has outlined a series of criteria for grading medical evidence. By those criteria, the strongest evidence is meta-analysis where all studies, both positive and negative, pertaining to a subject are reviewed, assessed in terms of the quality of the data and then the observed ‘effect’ in the individual studies is used to obtain the ‘average’ effect or strength of association…”
Likewise the paper by Palmer et al states: “The aim of this report is to provide an updated review of the evidence linking CTS with work.”
24. We are satisfied, given the evidence of Professor Sambrook and the papers to which he referred, that repeated flexion and extension of the wrist is a risk factor for CTS. This opinion is not dissented from entirely by Dr McGill who stated that both papers were well written and expressed caution. His opinion was that forceful and repetitive activities were a risk factor for CTS but the evidence for light repetitive activities was doubtful.
25. We note, that for the purposes of the Veterans’ Entitlements Act 1986 and the Military, Rehabilitation and Compensation Act 2004, s 339, the Repatriation Medical Authority in Instrument No 90 of 2001 has held that on sound medical-scientific evidence available that a factor that must exist before it can be said on the balance of probabilities that CTS is connected with service is performing any combination of repetitive activities with the affected hand (sic) for at least 260 hours within a period of 210 consecutive days before the clinical onset of CTS. “Repetitive activities” is defined in the Instrument as bending or twisting the hand or wrist or carrying out the same or similar movements of the hand or wrist at least 100 times an hour.
26. The Statement of Principles regime, which applies not only to claims pursuant to the VEA, but also to claims under the MRCA were not raised with the parties in this matter. Sitting as Members of an Administrative Appeals Tribunal we are cognisent of the Statements of Principle which are disallowable intstruemnts and legislative in character (see Vietnam Veterans Association of Australian NSW Branch Inc v Cohen & Ors (1996) 70 FCR 419) and take note of them, solely as medical opinion lending support to the evidence of Professor Sambrook.
27. A submission which was made by the Respondent and which we regard as most material is that each case must be looked at individually and on its merits.
28. Therefore what must be taken into account in the Applicant’s case is that she fits the profile as to sex and age where the CTS is likely to develop. The paper by Palmer et al under the heading “Discussion” refers to the confounding factors of sex and age. Drs McGill and Honner both refer to constitutional factors namely sex and age as being a cause, and to our mind the fact which implicates those factors here is that the Applicant has bilateral CTS, that is to say the CTS is not confined to the limb making the repetitive movements.
29. In stating the above finding we recognise that the Applicant’s CTS is worse on the left, so far as symptoms are concerned. There is no evidence that the pathology of the condition has been rendered worse by the repetitive activities.
30. For the Applicant it was submitted that on the 20th or 21st of July 2006, when she first experienced the symptoms of CTS, she suffered an injury as that term is defined in ss 4(1) of the SRCA.
31. We are not satisfied that the Applicant did suffer an injury when the symptoms of her CTS first manifested themselves. In Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 at 308 McHugh, Gummow & Hayne JJ said that the circumstance that a sudden physiological change has been caused or provoked by a disease does not prevent it from constituting a “physical injury”. The emphasis is on the word sudden. In this case what the Applicant experienced was the inevitable symptoms of an existing disease. There is no evidence, as opposed to speculation, that the Applicant suffered any physiological change at the time she first experienced symptoms of her CTS.
32. There is no doubt that the Applicant did experience symptoms of CTS which were made worse in her left wrist being the wrist that was performing the repetitive activity. As was pointed out in Commonwealth Bank Corporation v Percival (1988) 82 ALR 54 at 57 the symptoms of a disease are part of the disease and a symptom of an injury or disease is part of the condition in respect of which compensation for incapacity is granted. The Court in that case went on to point out that pain is the most common factor lending to compensable incapacity.
33. At 82 ALR p 58 the Court applied the reasoning in Commonwealth v Beattie (1981) 35 ALR 369 at 378 namely:
“For present purposes it is enough to say that pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place.”
34. In the Applicant’s case we do not consider that work made any pathological change to her constitutionally caused CTS. What work did cause was an exacerbation of symptoms, including pain, in her left wrist.
35. The Applicant is entitled to compensation for the pain in her left wrist caused by the work activity. As pointed out by Drs McGill and Honner that pain should have resolved shortly after cessation of the activity. The history taken by Dr McGill, namely of a worsening for one month then resolution, can be reconciled with the opinion of Dr Rozario who took a history of 40 to 50 per cent resolution of the whole condition after nine to 10 weeks, and we consider the period of one month immaterial.
36. The only question before us is one of liability. The decision under review is therefore set aside and the Tribunal substitutes its decision that the Applicant is entitled to the payment of compensation pursuant to s 4 SRCA for the ailment described as temporary aggravation of carpel tunnel syndrome left wrist.
37. No submissions were addressed to us regarding costs and that matter is reserved for further submissions.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr M E C Thorpe, Member.
Signed: ..........[sgd]...........
Mwela Kapapa, AssociateDate/s of Hearing: 18 - 20 November 2007
Date of Decision: 21 January 2008
Counsel for the Applicant: David Richards
Solicitor for the Applicant: Slater & Gordon Lawyers
Counsel for the Respondent: Rhonda HendersonSolicitor for the Respondent: Graham Jones Lawyers
0
5
0