Giacomantonio and Australian Postal Corporation
[2003] AATA 40
•16 January 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 40
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q2000/815
GENERAL ADMINISTRATI VE DIVISION ) Q2002/15 Re MARILYN JOY GIACOMANTONIO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Deputy President Don Muller
Dr K P Kennedy OBE, MemberDate16 January 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions under review.
.............(Signed).................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
WORKERS COMPENSATION – permanent impairment – natural degeneration
REASONS FOR DECISION
Deputy President Don Muller
Dr K P Kennedy OBE, Member1.The applicant, Marilyn Joy Giacomantonio, seeks review of the following two decisions:
(i)Q2000/815: A decision made on 5 July 2000, by the Reconsiderations Delegate, to deny liability for compensation for a permanent injury to the lower back and left and right shoulders on the ground that the applicant’s permanent impairments are the result of natural degeneration; and to not address the question of liability for a claim for permanent impairment of the applicant’s wrists because the degree of permanent impairment for the applicant’s wrists on their own is less than 10%.
(ii)Q2002/15: A decision made on 27 November 2001 by the Reconsiderations Delegate, to not reconsider a decision made by the Claims Manager on 25 September 2001, to refuse to entertain a purported claim made by the applicant on 17 July 2001, for ongoing weekly compensation payments and medical expenses on the ground that the material relied on by the applicant did not constitute a valid claim.
2.The applicant was represented by Mr. McGrath of counsel and the respondent was represented by Ms. Downes of counsel.
3.Ms. Downes conceded that the Tribunal has the jurisdiction to review Q2000/815, the claim for permanent impairment, but submitted that the Tribunal does not have jurisdiction to review the decisions to refuse the claim for ongoing weekly payments and medical expenses, Q2002/15.
4.As a preliminary point the Tribunal decided that the refusal of the Claims Manager to deal with the applicant’s claim for ongoing weekly compensation and medical expenses amounted to a refusal of the claim, and the refusal of the Reconsiderations Delegate to reconsider that decision amounted to a reviewable decision to refuse the applicant’s claim for ongoing weekly compensation. Consequently, the Tribunal decided that it had jurisdiction to review both matters, and that they should be heard together.
5.The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and a number of medical reports. The applicant gave oral evidence. Some medical evidence was given orally and other medical evidence by telephone.
6.Ms. Giacomantonio gave evidence in chief to the following effect:
(i)She was born on 5 May 1948.
(ii)At the age of 14 years she was involved in a motor vehicle accident in which she sustained a fractured collar bone.
(iii)At the date of the hearing she was employed full time as a call centre reservations officer with Virgin Airlines.
(iv)After leaving school her initial employment had been secretarial and office type work.
(v)In 1968 she got married. She and her husband started a family business called “Colour Constructions”, which was involved initially in civil engineering and later in property development. She separated from her husband in November 1992 but continued to do some office work for the business until April 1993.
(vi)Up until April 1993, she had never done any heavy lifting.
(vii)She started work with Australia Post on 13 June 1993, when she was 45 years of age.
(viii)As a mail officer she was required to work with various items of equipment and to undertake a number of duties which she said were of a repetitive nature and which at times involved bending, stretching, turning and lifting movements.
(ix)The majority of her work with Australia Post was on the small parcel sorting machine (SPSM). This involved small parcels which were supposed to weigh no more than 500 grams. They would come along a conveyor belt which she said was elevated about three metres and from that belt parcels would drop down a shute to each workstation where the parcel would fall into a bowl to the right hand side of her seated position. The parcel would have to be picked up by her left hand, the postcode identified and then she would have to key in the postcode with her right hand. The parcel would then continue on a conveyor belt. She said that her bench was comfortably placed at about waist height and she estimated that she would have checked about 800 to 1000 small parcels each hour. She believed that she would have worked on the SPSM for between 1.5 and 4 hours a night but with some breaks.
(x)Another work area was the large parcels section. These parcels were not supposed to exceed 16 kg. The work here usually involved two people with one standing, moving and adjusting the parcels on the conveyor belt so that the postcode could be read by the other worker who would be seated. When allocated to this duty the two workers would interchange positions each half hour.
(xi)She also worked in the FSM area, which was where the large letters were sorted. These letters would come in polystyrene boxes which would be sorted by an assistant so that the person at the workstation could readily pick up the letter, enter the code and put it on the conveyor belt. The assistant would at times have to bend over into the steel crate to lift out the polystyrene containers. Again duties would be exchanged about every half hour.
(xii)At times she was required to work in the dock area which involved lifting containers weighing up to 16 kg (sometimes more) and this work also involved a lot of bending. She occasionally worked with the indexing machine which involved keying in postcodes for small letters but she said that this was a quite comfortable position.
(xiii)The applicant also described some other sorting activities in which she had less involvement but which also were associated with bending and twisting manoeuvres. These activities were often organised to ensure that staff rotated at half hourly intervals.
(xiv)She said that in January 1996 she began to feel pain in her left shoulder and elbow. She was referred to Dr. Goode who recommended that she be given extensive physiotherapy (five times per week). She was put on “light duties” for five months. She made her first claim for compensation arising out of these circumstances. At the end of the five months of light duties her shoulder and elbow problems had settled and she returned to full duties.
(xv)In January 1997, she was involved in a motor vehicle accident and sustained a mild whiplash injury to her neck.
(xvi)In June 1997 she was bending into a ULD (a steel crate) when she felt some pain in the back. Later in the night she experienced stiffness across her back and down the left leg. She does not remember if she sought treatment at that stage but a few weeks later she experienced further back pain when lifting bags from a flat top and tipping them into a bin. She then had four days off work and was put on restricted duties. The restricted duties on this occasion excluded bending and lifting but she was still able to work on the SPSM.
(xvii)In July 1997 the lid of the OCR machine fell on her hands. She saw her GP, either Dr. Chan or Dr. Ryan, who put her off work for four days. She thought that it was about six weeks later that she developed swelling within her wrists. She thought that she was put on restricted duties for about four months, by which time her problems had settled down.
(xviii)In January 1998, when working with the SPSM, she experienced pain in her right shoulder. She had about four physiotherapy treatments because at that time “it wasn't a real severe thing”.
(xix)In July 1998 she hurt her back severely. She was leaning across two bags to feel the weights of parcels, without lifting them up, when she felt a bad ache across the lower back. She went on to work an eight hour shift but the following morning she was “in agony”. She saw Dr. Ryan or Dr. Chan and was subsequently visited by Dr. Goode. She was off work for three weeks and then returned on restricted hours and restricted duties. While on these restricted duties, she said that the symptoms abated.
(xx)She ceased work in November 1998.
(xxi)She was seen by the Medical Services Advisor to Australia Post, Dr. Castrisos in early 1999. Dr. Castrisos had come to the conclusion that physically she was not equipped for the work she was doing at Australia Post. (Dr. Castrisos gave evidence to the Tribunal that the applicant was “totally unsuited for the work she was doing at Australia Post”.) Dr. Castisos arranged a redundancy package for her and arranged for a rehabilitation programme which included a Diploma of Business Course at Martin College at a cost of $8,000 for twelve months. She was also provided with a computer and software. She was paid her salary for about one year and was also provided with a mattress which cost approximately $2,000.
(xxii)When she left Australia Post she had a lot of pain in her right arm and the arm was her biggest problem. She thinks that her back “must have been giving trouble at the time” because Australia Post had purchased the mattress for her. She did not recall if she had trouble with her left shoulder at the time.
(xxiii)After successfully completing the course at Martin College which had been paid for by Australia Post, she went on to do a computer course at her own expense.
(xxiv)After leaving Martin College she signed up with Adecco and did some temporary clerical work with various companies. She worked at Golden Circle from September 2000 until July or August 2001. While working at Golden Circle, she awoke one morning with a stiff back and was off work for five days. There had been no precipitating factor for the back pain as she had been working on accounts there.
7.During cross-examination of the applicant by Ms. Downes, the following points were made:
(i)Although the applicant stated in her original application for compensation that the injury to her shoulder had occurred on 16 January 1996 when she was picking up small parcels with her left hand and placing them on the belt, the pain had developed gradually in the left shoulder and left elbow in late 1995. She said she had filled out the form in the manner she did because it did not allow for something which had come on over a period of time.
(ii)The pain had been coming on both at home and at work. At home she could not hang the clothes on the line. She believed that the pain at home came on after the pain had come on at work. Although she had previously stated that the pain had come on in the left shoulder and left elbow at the same time, she admitted in cross examination that she could not remember when the pain in the elbow had commenced. Later she accepted as accurate a report of Dr. Goode, dated 1 March 1996, that she had told Dr. Goode that the elbow pain had come on about one month after the shoulder pain. Ms. Downes also referred the applicant to a medical report from a Dr. Stabler in May 1997 in which Dr. Stabler had stated that the applicant had told him that she had tingling and numbness in the whole of her left hand. The applicant accepted that she had given that history to Dr. Stabler at the time.
(iii)Ms. Downes also referred the applicant to the report of Dr. Stabler in which the applicant had told him that the pain in the elbow, which had first occurred in late 1995, had never really improved. The report of Dr. Goode dated 1 March 1996, however, had noted that the applicant had told him that at that stage the left elbow had settled. The applicant accepted the notes of Dr. Goode as being correct and commented that she could not really remember that far back.
(iv)Dr. Goode had also in that same report commented that her thoracic symptoms had settled. In response to a question from the Tribunal the applicant said that she did not recall any thoracic problems at the time. She agreed that she had resumed full normal duties in 1996.
(v)In July 1997, when the applicant had been seen by Dr. Goode with backache, Dr. Goode reported that she had denied any history of a motor vehicle accident. Ms. Downes reminded the applicant that she had been involved in a motor vehicle accident in January of 1997. The applicant said that either she had forgotten about the accident at the time or alternatively that she did not remember Dr. Goode asking the question. She did not deny that he may have asked the question however. Following the back injury she had returned to normal duties for a short time until the machine fell on her hands. She returned to normal duties about three weeks after the latter incident.
(vi)In relation to the 1998 incident of pain in the right shoulder, the applicant said that the pain had become a lot worse, had not improved and had persisted up until the time when she left Australia Post. Ms. Downes referred to the reports of Dr. Goode at T8 and T10 of the T documents.
“No significant discomfort in the right elbow. Full range of movement in the right shoulder. No localised tenderness in the right shoulder (T8 February 1998).
Ms. Giacomantonio reported that her right shoulder and elbow were settling. She had some mild thoracic discomfort. Ms. Giacomantonio was able to continue with her normal duties at work and there was a full range of movement of the right shoulder and so on. (T10 11 March 1998)”
(vii)Ms. Downes put to the applicant that subsequent to March 1998 she had seen Dr. Goode on a number of occasions about her back but that she had made no further reference to her wrists or shoulders. In addition, there had been no mention of discomfort in her left shoulder since mid 1996. In relation to the left shoulder, the applicant agreed with Ms. Downes. In relation to the wrists and right arm and shoulder, the applicant agreed that she would have told Dr. Goode if she had been experiencing symptoms in her shoulder, elbows or wrists. Her only explanation was that the symptoms had possibly abated for some time.
8.The first medical witness was Dr. Jim Ryan of the Wishart Medical Centre who gave evidence by telephone. Dr. Ryan is a general medical practitioner and either he or Dr. Chan had reviewed the applicant at the Medical Centre over the period February 1996 to July 2001. Dr. Ryan's evidence was to the following effect.
(i)The applicant attended the Medical Centre in May 1996 complaining of neck problems. In May 1996 a radiology report from Dr. John Gimpel revealed the presence of cervical spondylosis at multiple levels. At that time an X-ray of the left shoulder had shown osteoarthritic changes at the acromio-clavicular joint.
(ii)In relation to the left shoulder injury, Dr. Ryan recorded that by 13 June 1996 she was much improved.
(iii)On 5 August 1996 the applicant had attended complaining of cervical pain and stiffness.
(iv)On 6 October 1997, Dr. Ryan had given a full clearance for her to return to full duties at Australia Post.
(v)On 21 July 1998 she had presented with a further flare up of her back pain. Dr. Ryan recorded that it was not until 30 July 1998 that she had described how the injury had happened. During his subsequent evidence in chief, Dr. Ryan said that the applicant had then mentioned that on 19 July she had lent across a bag rack and lifted a bag of mail and now believed that that was the cause of the pain.
(vi)When he saw her on 14 September, it was suggested that she return to work full-time lifting up to 10 kgs at a time.
(vii)She presented again on 31 October with back pain, following leaning forward to clear a letter stuck on the conveyor belt.
(viii)On 5 November 1998 she had presented with pain in her left rib cage after stretching to turn off a light at work.
(ix)There were also further incidents subsequent to her leaving Australia Post. On 8 May 1999 she presented with inflammation of her right elbow region and tendonitis of the right shoulder area. On 17 January 2000 she was seen with low back pain. The last occasion on which Dr. Ryan saw her prior to his report had been 17 July 2001 when she requested a referral to Dr. Mark Robinson regarding her shoulder and wrist pains.
(x)During cross-examination, Dr. Ryan, reading from the practice notes, confirmed that the applicant had also reported on one occasion that her work shoes were causing problems and examination had revealed a swollen left fifth metatarso-phalangeal joint. In October 1996 she had presented with a left knee problem with no history of recent injury but history of injury 25 years previously. There had been a further presentation in November 1996 with neck pain.
(xi)Dr. Ryan agreed with Ms. Downes that the applicant was someone who was concerned about her health and who would attend the surgery if she experienced pain. He agreed that he could find only one reference to her attendance for back pain between November 1998 and the day of the hearing (12 September 2002) and that consultation had related to referral to an orthopaedic surgeon about her back.
9.The next medical witness was Dr. Steven Goode, a specialist in occupation medicine. Dr. Goode is also a Consultant to Australia Post. Dr. Goode gave oral evidence. He told Ms. Downes that he had seen the applicant on 18 occasions. Medical reports prepared at the time of those consultations were included in the T documents. Dr. Goode had seen the applicant over the period 29 February 1996 to 4 August 1998. Dr. Goode’s evidence was to the following effect:
(i)Dr. Goode said that the applicant did not tell him about a car accident in 1997 nor did she tell him that she had had nerve conduction studies for suspected carpal tunnel syndrome prior to the part of a machine falling on her wrists.
(ii)The first written report of Dr. Goode dated 1 March, referred to a consultation on 29 February 1996. Dr. Goode recorded that the applicant had told him that left shoulder and upper limb pain had appeared slowly over six weeks. She said that the left shoulder pain had been first noticed when reaching with her left arm while on the SPSM although commented that she noticed the left shoulder symptoms when getting dressed at home. She said that the left elbow pain had come on about a month after the onset of the shoulder pain. By June 1996 Dr. Goode recorded that the left shoulder had settled down and by July he stated that she then had only very mild epicondylitis at the left elbow. During the further numerous reviews by Dr. Goode, no further mention was made of any problem with the left shoulder or elbow.
(iii)In June 1996, the applicant told Dr. Goode of paraesthesiae in the left hand that day and also reported that her cervical spine was improving. In December she reported problems with her feet which settled after the provision of new shoes. Dr. Goode also saw her 12 days after the lid of the OCR machine had fallen on her hands. At that stage, on 22 July 1997, he mentioned only slight swelling being present with a healing abrasion over the dorsum of the left hand. On 30 July she was fit to return to normal duties.
(iv)On 2 September 1997 the applicant was seen by Dr. Goode with a new episode of lumbar back pain. On 15 August 1997 she had been seen by Dr. Peter Tan of Underwood with a history of left lower back pain after lifting mail bags on the previous day. Dr. Tan had diagnosed musculo-ligamentous strain and stated that she could return to work on 15 August subject to modified duties for a two week period. Dr. Goode diagnosed a further episode of sacro-iliac pain was settling. She said that she had had bilateral heel pain for three weeks but no history of trauma. She was cleared to resume full normal duties from 6 October 1997.
(v)At a subsequent consultation with Dr. Goode on 26 September 1997, the applicant reported that the sacro-iliac pain was settling. She said that she had had bilateral heel pain for three weeks but no history of trauma. She was cleared to resume full normal duties from 6 October 1997.
(vi)The applicant saw Dr. Goode again on 3 February 1998. She told him that she had insidiously developed right shoulder and lateral right elbow pain since September 1996. Again there was no history of acute injury at home or at work. After review by Dr. Goode on 10 March 1998 Dr. Goode reported that the mild rotator cuff tendonitis and mild right lateral epicondylitis had virtually settled. She had continued normal duties since initially reporting these symptoms.
(vii)In July 1998 the applicant gave a history of lumbar back pain which she reported had commenced whilst leaning over the OA bag rack at Underwood Mail centre on 19 July 1998. She remained off work until 10 August when she commenced a graduated return to work programme. Initially she was on restricted duties for three hours daily but by 14 September she had resumed full time work with restricted duties.
(viii)During cross-examination, Dr. Goode agreed that much of the work at the Mail centre was of a repetitive nature but he said that the work centre does take care to get good ergonomic assessment and that staff are rotated between tasks. Dr. Goode would not concede that the applicant had developed symptoms due to injuries arising from her work. Dr. Goode said that if one has an underlying condition then work can unmask the symptoms relating to that condition. The applicant had eight different medical conditions and work could lead to symptomatic expression of those conditions. Her history was one of chronicity. In relation to a specific question, Dr. Goode said that he did not accept that anyone could say that the epicondylitis was due to her work.
10.The next medical witness was an orthopaedic surgeon, Dr. Mark Robinson. Dr. Robinson had provided two written reports and he also gave evidence by telephone. In his written report of 17 March 2000, Dr. Robinson referred to the two episodes of back pain. He stated that the applicant told him that at that stage the back symptoms had completely settled although she did have intermittent problems and referred to one episode of back pain in January 2000 on waking one morning. She could recall no specific injury preceding that incident. On that occasion the symptoms settled over two to three weeks. Dr. Robinson’s other evidence was to the following effect:
(i)On 3 September 1999, the applicant had presented to his rooms complaining of bilateral arm pains. He recorded that she had been troubled by tendonitis of both wrists and bilateral tennis elbows since a lid had fallen on her wrists at work in 1997. Later, during the course of cross-examination, Dr. Robinson said that the applicant had told him that her wrists had been swollen since that event in 1997.
(ii)Dr. Robinson opined that the back pain was the result of a degenerative condition that had been aggravated by conditions in the workplace. During his evidence in chief he said that the osteoarthritis was a degenerative process which is wear and tear. He said that he did not think that the two incidents causing back pain in 1997 and 1998 had caused the osteoarthritis. Those incidents had made the back pain symptomatic for that period of time. He opined that the employment would be a contributing factor to the osteoarthritis but that there was no clear medical evidence of ways of proportioning that contribution.
(iii)When he saw her in March 2000, back pain symptoms were not troubling her. She did not relate the shoulder pains to any single event. Dr. Robinson said that calcific tendonitis is a condition of unknown etiology. He said that there had been some links between calcific tendonitis and occupational activity but during cross-examination he agreed that the changes as far as the applicant was concerned, could be simply age related degeneration. He felt the tenosynovitis of the right wrist was likely to be related to the fall of the lid in 1997 because the applicant dated the swelling to that time.
(iv)During cross examination, Dr. Robinson said that he had first seen the applicant in September 1999. He had subsequently seen her on nine occasions. While he had stated in his report that her symptoms had been aggravated by activities in the workplace, he told Ms. Downes that at no stage had she given him any basic information about the nature of the duties she had performed at Australia Post.
(v)Dr. Robinson was asked by a member of the Tribunal why he had attributed a disability of 5% to each wrist at the present time. Dr. Robinson said that she had had ultrasound demonstrated tenosynovitis in the right wrist but he was unable to put a specific diagnosis on the left wrist problem. He was unable to say how her wrist problems currently interfered with her daily activities because his report had been written two and a half years ago. Finally, during re-examination by Mr. McGrath, and in spite of his earlier evidence, Dr. Robinson stated that in his opinion probably 50% of her degenerative problems were related to her employment at Australia Post.
11.Dr. David White, orthopaedic surgeon, examined the applicant on one occasion on 7 August 2001. He prepared a written report, dated 20 August 2001. He gave oral evidence to the Tribunal. The main points arising out of Dr. White’s statement and evidence were:
(i)During cross examination, he agreed with Ms. Downes that he had noted no wasting or deformity of the left shoulder and no tenderness and that there was a normal range of movement unaccompanied by complaints of pain or crepitations. In response to the question as to why he had given a 5% impairment, he said that he justified his opinion on the basis that she still had some complaints and there were radiological abnormalities.
(ii)In relation to the right wrist, Dr. White had noticed general swelling on the dorsal aspect proximal to the wrist crease with tenderness reported at that site. The wrist lacked almost ten degrees of dorsiflexion and palmar flexion. While the x-rays of both wrists had shown age related degenerative changes, an ultrasound had shown tenosynovitis of the extensor tendons of the dorsal aspect of the wrist and Dr. White said that the latter was a more likely cause of wrist symptoms than the degenerative bone changes.
(iii)During further cross examination, Dr. White agreed that the most common situation in which tendonitis of the shoulder occurs is in those in whom no injury has been reported and that such changes are prone to occur in women in their fifties. He then qualified his initial answer by stating that they are not prone to tendonitis without a history of some injudicious activity. He agreed that it was possible that tendonitis could be caused solely by degeneration but said that it was unlikely. He had assessed the right shoulder as having lost half the normal range of movement. He agreed that in relation to the history one could only go on what one is told.
12.A written report prepared by Dr. John Pentis, an orthopaedic surgeon was included as Exhibit 8. Dr. Pentis was not required to give oral evidence. That report of Dr. Pentis was dated 12 November 1998 and related only to his examination on that date. Dr. Pentis noted that the x-rays showed degeneration in the facet joints and in the lumbosacral region. He commented that the applicant appeared to have injured her spine in the stated incident on 19 July 1998. At that time he recorded that the incident was causing continuing problems but that it was then too early to give a prognosis. Dr. Pentis made no reference to any shoulder, arm, wrist or elbow problems.
13.Dr. Tony Blue, another orthopaedic surgeon, also gave evidence by telephone. Dr. Blue saw the applicant on 27 August 1998. The main points arising from Dr. Blue’s statement and evidence were:
(i)Dr. Blue disagreed with the opinion of Dr. Robinson that some of the degeneration of the applicant’s spine could be attributed to her work at Australia Post.
(ii)He said that the events recorded in the history of the applicant had not constituted the sort of trauma that would produce degenerative change. He said that the events at Australia Post would have temporarily aggravated the pre-existing condition by making it symptomatic but once the activity had stopped, she would eventually be back to where she would have been had she not done that activity. He agreed that work would make the pain worse at least temporarily.
(iii)Dr. Blue made no reference to any symptoms referable to the shoulder, arm, wrist or elbow.
14.Dr. Peter Boys, also an orthopaedic surgeon, had examined the applicant on 13 March 2001 and he had prepared a written report. He also gave evidence by telephone. The main points arising from his evidence were:
(i)Dr. Boys had noted full movements of the left shoulder and examination of the left forearm, wrist and hand showed no abnormality. He found overall impairment of the right shoulder to be 5% with that impairment in his opinion to be due to degenerative change. While accepting that tendonitis had developed in her right shoulder during the course of her employment, he was unable to determine a causal relationship to her work.
(ii)In relation to the right wrist, he noted some non specific tenderness over the volar aspect of the right wrist. He felt that she might suffer a low grade synovitis of extensor tendons in her right wrist but he was unable to attribute her ongoing complaint with the injuries sustained in 1997. He attributed a zero impairment for the right wrist.
(iii)He said that he would assess the back disability at 5% with that 5% being due to degenerative disease and not be work related.
(iv)Dr. Boys said that he did not believe that the applicant suffered any permanent disability at this time as defined by the Safety Rehabilitation and Compensation Act 1988 nor did he believe that the applicant had any assessable impairment.
(v)During cross-examination, Dr. Boys could not be persuaded to change the views expressed in his written report. He told Mr. McGrath that it had never been demonstrated in a scientific study that repetitive work can contribute to spinal degeneration. He formed the view that the applicant had suffered a temporary aggravation of back pain during the course of her work. In relation to the right shoulder he accepted that while work may have aggravated the pain in the shoulder, in the absence of any specific injury one might easily postulate that the calcific tendonitis is well known in ladies of her age who do not do repetitive work. He agreed that the work could contribute to her symptoms but he felt that he could safely say that the work had not caused the condition.
(vi)Dr. Boys said, that when he saw the applicant, she was complaining of intermittent left sided back pain which she described as a niggle occurring once a month. When she had the pain it would settle the same day. His assessment was based on the history correlated with the physical examination and radiology. He said that the sort of complaint at the time was consistent with degeneration of the spine.
(vii)When asked about the opinion of Dr. White that the applicant may have had an intradiscal disruption, Dr. Boys said that such a diagnosis did not correlate with the clinical features at the time. With regard to the diagnosis of possible low grade synovitis, as set out in his own written report, Dr. Boys agreed that work could be responsible for synovitis as a result of overuse but such symptoms should settle once removed from that activity and it was two and a half years after ceasing work at Australia Post that Dr. Boys had seen her. At the time of his examination he could find no evidence of synovitis clinically. The slight tenderness he had noted had been on the other side of the wrist to the extensor tendons. In view of the degeneration in the wrist bones as reported by the radiologist, he believed that the volar tenderness had probably been due to the bone changes. Further, in the absence of bony injury and specific tendon injury at the time, he did not believe that tendonitis of the wrist could be attributed to a piece of equipment falling on her hands two and a half years earlier.
15.The last medical witness was Dr. Edwin Castrisos. Dr. Castrisos is a qualified medical practitioner and is Medical Advisor to Australia Post. He also has a Diploma in Aviation Medicine and a Certificate in Occupational Medicine. During his evidence in chief Dr. Castrisos confirmed that he had received a request from the applicant to provide a reference in February 1999. At the time he thought that she was applying for a position with the Australian Taxation Office. In the accompanying personal details (Exhibit 14) she had stated her health to be excellent. Also included as part of the same exhibit was a letter which she had written to the Manager of Australia Post. In that letter she said that she had come to terms with the fact that she could no longer perform the duties for which she was employed at Australia Post and that Dr. Castrisos had explained in a very precise way what was the best avenue for her to take. His advice as to what was best for her as a career path and arranging her training for future employment had taken the burden off her which she believe would assist in her future well being.
16.Dr. Castrisos, during cross-examination, told Mr. McGrath that he had seen the applicant for an initial assessment on 5 October 1998. He was concerned about her suitability for continued employment with Australia Post as a mail officer and referred her to an occupational therapist and a rheumatologist for their opinions. Both those specialists indicated that she was unsuited to the work that she was doing and that a more sedentary type of job would be more suitable.
17.Dr. Castrisos said that he did not feel that any of her conditions had been made worse by her work at Australia Post. The applicant had widespread degenerative conditions. She had osteoarthritis of both shoulders, she had a degenerative cervical spine and degenerative lower lumbar spine. None of the duties which she was doing would in his opinion have changed the natural course of those conditions. Dr. Castrisos disputed that the work of a mail officer was highly repetitive. He said that the former repetitive work had been transformed by machines and that there had been no major change in practices during the time of the applicant’s employment. He said that the applicant was incorrect if she had stated that the work was highly repetitive. He said that the Underwood Mail Centre, where the applicant had worked, had on a consistent basis won the National Australia Post Occupational Health and Safety Excellence Award for being the safest mail centre in Australia.
18.The evidence revealed that during the period that the applicant had worked at Australia Post that she had reported numerous symptoms related to her musculoskeletal system. These symptoms had usually come to the attention of Dr. Goode at Australia Post but some symptoms had been reported only to her general practitioner. The areas of involvement at various times had included the left shoulder, the left elbow, the left knee, both feet, both wrists, the right shoulder, the right elbow, the neck, the thorax, the lumbosacral region of the back and the left sacroiliac joint. The applicant claims that she has suffered a permanent impairment as a result of repetitive duties over a five year period at Australia Post and she has also claimed weekly payments for total and partial incapacity. In her claim dated 16 July 2001 (Q2002/15) the applicant stated the injuries sustained to be “injury to both arms and shoulders and back injury”. In the claim dated 21 June 1999 (Q2000/815) she stated injuries to be “lower back, right shoulder, elbow, wrist, arm tendonitis, pain, numbness etc, left shoulder/arm”.
19.In the view of the Tribunal the applicant was not an entirely reliable witness. There were a number of discrepancies between the history given by the applicant at the time of the hearing and contemporary notes recorded by medical practitioners. During the course of her evidence the applicant acknowledged that she had difficulty recalling details of some events and she did not dispute the accuracy of notes made by medical practitioners at the time. There is no documentation to confirm that she had any continuing symptoms referable to her musculoskeletal system at the time when she finished at Australia Post. In addition, in her application for a position in the following February she described her health as excellent.
20.In 1996 she had completed a claim for compensation for pain in the left shoulder. In that form she stated that the left shoulder pain had come on as she was picking up small parcels to place on a belt on 16 January of that year. Later she agreed that the pain in the left shoulder had appeared slowly over the previous six weeks both at work and at home but she felt that it had come on first at work. She could not relate the onset of the pain to any specific event. She also said that she experienced pain in both the shoulder and elbow at the time but medical records indicate that the left elbow pain had come on one month after the shoulder pain. This occurred when the applicant was on restricted duties because of the left shoulder pain. Although she is now seeking compensation for left shoulder and arm pain, the records indicate that after she returned to full duties in July 1996 she did not again complain to Dr. Goode of any symptoms referable to her left shoulder during the remainder of her time at Australia Post.
21.In relation to the 1998 onset of pain in the right shoulder, the applicant said that the pain had not improved and had become worse and persisted up until the time that she left Australia Post. The report of Dr. Goode in March 1998 however reported that her right shoulder and elbow were settling, that she had continued her normal duties at work and that there was a full range of movement at the right shoulder. During subsequent reviews by Dr. Goode in 1998 in relation to her back, the applicant made no further reference to her wrists or shoulders. The applicant agreed during cross-examination that she would have told Dr. Goode if she had been experiencing symptoms in her shoulders, elbows or wrists. It is also perhaps relevant to note that when seen by Dr. Blue in August 1998 and Dr. Pentis in November 1998, no record of symptoms referable to her shoulders, elbows or wrists was included in their reports.
22.The applicant told Dr. Robinson in March 2000 that her wrists had been swollen since the lid incident in 1997 but that was not consistent with clinical examinations by Dr. Goode subsequent to 1997. Again neither Dr. Blue nor Dr. Pentis had noted any such swelling in 1998 and Dr. Robinson did not record that he had observed any swelling of wrists. In March 2001, Dr. Boys had specifically noted the only abnormality of the wrists to be slight tenderness on the volar surface of the right wrist. In August 2001 Dr. White noted swelling proximal to the wrist crease but he had also noted in his history that the wrist symptoms were aggravated by computer work that she was undertaking in 2001. The evidence of Dr. Boys would suggest that the tenosynovitis diagnosed by both Dr. White and Dr. Robinson may well have been precipitated by activities subsequent to her work at Australia Post.
23.As far as the medical evidence was concerned, there was uniform agreement that the applicant does have degenerative bone disease. Dr. Ryan agreed that the applicant was someone who was concerned about her health and who would attend the surgery if she experienced pain. He could find only one reference to her attending for back pain between November 1998 and September 2002 and that was for a referral to an orthopaedic surgeon. In her own evidence the applicant could not be certain that she had back symptoms when she ceased work with Australia Post.
24.Dr. Goode said that while much of the work at the Mail Centre is of a repetitive nature, the centre does take care to get good ergonomic assessment and that staff are rotated between tasks. He would not concede that the applicant had developed symptoms due to injuries arising from her work. He accepted that if one has underlying degenerative disease then the work could unmask symptoms relating to that condition.
25.Dr. Mark Robinson, her treating orthopaedic surgeon, said that in March 2000 the applicant had told him that her back symptoms had completely settled although she did have intermittent problems. She told him of an episode of back pain in January 2000 which had come on without any specific precipitating factor and had subsequently settled over three weeks. Although Dr. Robinson stated at the conclusion of his evidence that he was of the opinion that 50% of her degenerative disease was due to her work at Australia Post, the Tribunal does not attach much weight to that opinion of Dr. Robinson because his evidence was inconsistent. He had earlier acknowledged that he had been given no detail of the duties of the applicant at Australia Post before arriving at his conclusions. In addition he had based his opinion on information provided by the applicant some of which has been shown to not be completely accurate. His opinion is also contrary to the weight of the other specialist opinion. Dr. Robinson acknowledged, that although he had made an assessment of the degree of disability, that assessment had been based on an examination in March 2000 and he was in no position to comment on the current level of disability. In spite of the earlier opinion, Dr. Robinson did agree during the cross-examination that the degenerative changes noted could be solely age related but he felt that the tenosynovitis of the right wrist was due to the lid incident in 1997.
26.Dr. White had seen the applicant over 18 months after she had left Australia Post. The history given to Dr. White in relation to the right shoulder was also incorrect when regard is had to the contemporaneous medical notes. Dr. White in recording his examination of her right shoulder said that there was no wasting or deformity, there was no tenderness noted, abduction was only mildly reduced and there was a moderate lack of internal rotation. Yet he assessed the right shoulder has having only half the normal range of movement and an impairment rating of 10%. Dr. Boys on the other hand assessed the impairment rating of the right shoulder at 5% but said that impairment was not due to work related injury. Dr. White in his written report had stated that the injury to the lumbar spine appeared to have resulted in intradiscal disruption at L5/S1 but no other orthopaedic surgeon had expressed that view and Dr. Boys said that such a diagnosis did not correlate with the clinical features at the time. The Tribunal prefers the opinion of Dr. Boys in the circumstances.
27.Dr. Blue had seen the applicant in August 1998. It is perhaps of significance that Dr. Blue made no reference to any shoulder or wrist symptoms at the time. Dr. Blue was in no doubt that the described work activities had merely produced temporary aggravation of long standing naturally occurring disc degeneration and lower facet degeneration. He believed that the radiological changes were of many years standing and would have antedated her work at Australia Post. He said that the work at Australia Post would not have caused the degenerative change.
28.Dr. Boys had examined the applicant over two years after Dr. Blue. His history and examination were more comprehensive. He could find no evidence of any work related injury. He assessed a 5% impairment of the right shoulder and 5% impairment of the back and no impairment of wrists, elbows or left shoulder. In each case he attributed the impairment to age related degenerative disease.
29.On the basis of the total evidence, the Tribunal accepts that the applicant has naturally occurring and generalised degenerative disease which had been temporarily aggravated by her duties at Australia Post. Many of the symptoms had come on without any specific precipitating factor, or in the case of her back, with relatively minor activities. The symptoms had subsequently settled in most cases while continuing at work either on restricted duties or at times on full duties. The evidence would indicate that the overall severity and duration of symptoms had been less than that detailed in the history given to some specialists in more recent years. Since leaving Australia Post the applicant has continued to have intermittent symptoms in the absence of precipitating factors, such a pattern being consistent with underlying degenerative disease. Nevertheless, after leaving Australia Post the applicant was able to successfully complete a Business Course at Martin College and to subsequently obtain part time work. No evidence was produced to indicate that she was not fit to undertake appropriate full-time work at any stage since leaving Australia Post and since 2001 she has in fact been working full-time at Virgin Airlines.
30.The Tribunal accepts the opinion of Dr. Boys, Dr. Blue, Dr. Goode and Dr. Castrisos that the applicant has not sustained any permanent injury as the result of her work at Australia Post. For the reasons stated above, the Tribunal has placed little significance on the alternative opinions of Dr. Robinson and Dr. White. In addition, also for reasons stated above, the Tribunal finds that the applicant does not have any continuing disability for any type of work as a result of her earlier duties at Australia Post. The Tribunal finds that any continuing disability is due to naturally occurring degenerative disease.
31.The Tribunal therefore affirms the two decisions under review.
I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller and Dr K P Kennedy OBE, Member.
Signed: .....................................................................................
C. O’Donovan, AssociateDate/s of Hearing 12, 13.9.02, 11, 12.11.02
Date of Decision 16 January 2003
Counsel for the Applicant Mr. C. McGrath
Solicitor for the Applicant Maurice Blackburn Cashman
Counsel for the Respondent Ms. K. Downes
Solicitor for the Respondent Clarke and Kann
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