Harley and Australian Postal Corporation

[2006] AATA 952

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 952

ADMINISTRATIVE APPEALS TRIBUNAL      )

)Nos N2006/27 &         N2006/567

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARGARET HARLEY

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr J Campbell, Member

Date10 November 2006  

PlaceSydney

Decision The decision under review is affirmed

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

Ms N Bell

Senior Member

COMPENSATION – Shoulder Pain – Compensation for Permanent Impairment of Shoulder – Degeneration of Cervical Spine – Symptoms Caused by Employment - Adhesive Capsulitis – Impingement of the Shoulder – Decision Under Review Affirmed   

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr J Campbell, Member     

1.      Mrs Harley began working with Australia Post in early 2000 as a Postal Delivery Officer and Night Sorter.  In July 2004 she reported pain in her right shoulder blade after working on the V-sort frame.  She says that pain became worse, affecting her arm as well.  Mrs Harley describes a range of symptoms in her shoulder and arm and there is a range of medical opinion about the cause of her symptoms.  One matter that is agreed on by all medical experts is that Mrs Harley has degeneration of her cervical spine and that condition is not related to her employment. 

2.      Mrs Harley has taken no time off work because of her shoulder and arm but wants the Tribunal to set aside Australia Post’s decision that, from November 2005, it has no present liability to pay her compensation for her arm and shoulder.  She also seeks lump sum compensation for permanent impairment of her shoulder that Australia Post refused.

issues

3.      What is the cause of the symptoms in Mrs Harley’s shoulder and arm?  This question is central because if her symptoms stem from degeneration of her cervical spine then, since it is agreed that degeneration is not caused by her employment, her arm and shoulder symptoms would not be caused by her employment.  If, on the other hand, her symptoms are caused by adhesive capsulitis or by impingement of the shoulder then the question of whether her symptoms are caused by her work remains open.

what is the cause of the symptoms in mrs harley’s shoulder and arm?

4.      Mrs Harley described her symptoms as having begun, in July 2004, with a sharp pain from her right shoulder blade down to the right side of her shoulder.  This pain occurred while she was “V slotting” – holding mail in her left hand and placing it, with her right, in slots at heights ranging from knee to eye level.  At the end of her shift, she said, she could not lift her arm more than two inches above waist height.

5.      After seeing Dr Burgess, General Practitioner, she was placed on some restrictions and a return to work plan, although she took no time off work.  When she returned to her normal duties in October 2004 she again experienced pain and movement in her right arm became more restricted.  In November, her pain became much worse and, after seeing Dr Burgess, she was again placed on restricted duties.  By this stage, she said, her shoulder was painful in all activities.

6.      In February 2005, after a month away from work following a claim for depression and stress, Mrs Harley found her pain began to improve.  But it returned when she went back to work, even though she was on restricted duties.  She was referred by Dr Burgess to Dr Rodd, Shoulder Physician, who arranged an x-ray and an ultrasound and administered an injection which she found made no difference to the pain between her shoulder and spine but improved her arm movement.

7.      Mrs Harley said she is in pain now in a place about two inches from her spine on her shoulder blade.  The pain is “like a knot” and then goes to the top of her shoulder and then down her arm to the back of her hand, although the symptoms in her hand are infrequent.  However, she said the pain is not as intense as it was and her ability to use her right arm is not affected and she can do anything, but with difficulty.  Up and down movements are more painful than moving side to side.  She is woken by pain if she rolls on her arm in the night and every night she feels numbness down to her elbow.  Mrs Harley said she has headaches at various times but is not aware of any association with her shoulder.

8.      Mrs Harley said she doesn’t do a gym exercise program because she found it unhelpful.  Instead she does neck stretches, occasionally uses “thermo bands” to strengthen her arm, walks occasionally and tries to eat well.

9.      Dr Barry Bracken, Orthopaedic Surgeon, in a report dated 1 February 2006, said Mrs Harley’s clinical presentation was one of mild impingement at the shoulder combined with a moderate degree of adhesive capsulitis.  He said this had arisen totally independently of her neck.  He found a loss of range of movement in all modalities at the shoulder and found her to have a 10% whole person impairment of her right arm under Table 9.1 of the Comcare Guide.

10.     In oral evidence, Dr Bracken said that referred pain from the shoulder to the hand is not inconsistent with shoulder impingement and such referred pain does not necessarily indicate a neurological factor.   He confirmed that adhesive capsulitis is accompanied by a restricted range of movement and that the natural course of the condition is that restricted range of movement remains for a long time.

11.     In cross examination, Dr Bracken allowed that a symptomatic degenerative condition of the cervical spine could produce symptoms in the neck, arm and hands.  When it was put to him that other examining doctors had found restricted range of movement, Dr Bracken said that must be because they had measured passive rather than active movement.

12.     Dr Ian McGill, Rheumatologist, said, in his reports dated 24 March 2006, that Mrs Harley’s symptoms stem from degenerative changes in her cervical and high thoracic spine and from minor right shoulder impingement.  He considered, however, that the signs for any shoulder impingement are not conclusive and, in any event, it would not have led to any permanent change and would have resolved in six weeks.  He found some small restriction of active movements but noted that passive movements were full.  He said she has a 5% impairment under Table 9.1 of the Comcare Guide.

13.     Dr McGill said, in oral evidence, that the pain Mrs Harley feels in her scapular and trapezius is derived from her spine.  He allowed, however, that pain in her arm could result from a shoulder condition.  But he said the reports of those who saw her closer to the time of her initial complaint were not suggestive of impingement.  He said that in the examination, abduction of Mrs Harley’s right arm produced discomfort and this is indicative of impingement, but discomfort was also reported on movement in any direction.  Mrs Harley reported discomfort on all movements.

14.     Dr McGill said that, while movements above shoulder height can irritate and cause symptoms to appear, working below shoulder height should not trigger symptomatology and, in fact, it is recommended exercise for impingement.

15.     As to adhesive capsulitis, Dr McGill said that a full range of passive movement is completely inconsistent with that condition.  He also noted that she had a full range of active shoulder movement, in any event.

16.     Dr Lew Perides, Occupational Physician, in a report dated 21 September 2004, diagnosed right upper thoracic strain and said Mrs Harley’s shoulder was not affected.  He found a full range of movement of both shoulders.  In his report of 15 August 2005 Dr Perides confirmed his earlier diagnosis and found that to be her major problem but added that, based on the diagnosis of Dr Rodd (see below), she also has mild impingement in her right shoulder, although he noted that ultrasound and x-ray showed minimal abnormalities.  He found her range of flexion of her right shoulder to be limited to 90 degrees (compared to the normal of 180 degrees) and abduction to be limited to 130 degrees (compared to the normal 180).  Dr Perides considered work may aggravate her condition if she had to work with her right arm above chest level for a prolonged time or had to lift more than five kilograms.

17.     Dr David Rodd, Shoulder Physician, made several reports to Dr Burgess.  In his first report, on 11 February 2005, he diagnosed cervico brachial irritability involving the suspensory muscles of the right scapula posteriorly and a moderately irritable right shoulder impingement syndrome.  He found full range of movement with a painful arc on forward flexion and pain on forced external rotation.  For the cervico brachial irritability he advised avoidance of repetitive activities involving the use of the right arm with the elbow away from the body at or above chest height under load.  On 3 March 2005 Dr Rodd noted an ultrasound showed no rotator cuff tear but bursal impingement on abduction and confirmed his earlier diagnosis.  Range of motion was again full with a painful arc on forward flexion but there was no pain this time on forced external rotation.

18.     On 28 April 2005 he found only minimally irritable impingement syndrome with most of Mrs Harley’s discomfort coming from her cervico brachial irritability.  He considered she showed considerable improvement.  On 23 June 2005 he found Mrs Harley’s impingement syndrome to be “virtually resolved”.  In his report of 1 December 2005 Dr Rodd found Mrs Harley to have ongoing cervico brachial irritability involving her right shoulder but made no mention of an impingement syndrome.  He found a full range of movement again but with no painful arc on forward flexion and no pain on forced external rotation.

19.     We note the findings of Drs McGill, Perides and Rodd of a full range of motion in Mrs Harley’s shoulders (with the exception of Dr Perides’ later report).  Only Dr Bracken made a diagnosis of adhesive capsulitis.  We note his concession, and the firm view of others, that a full range of movement, passive or active, is not consistent with adhesive capsulitis.

20.     We also note that, while Dr Rodd found that Mrs Harley had a shoulder impingement, he had also found, by June 2005, that it was resolved.  Dr Perides based his finding of a shoulder impingement on that of Dr Rodd and Dr McGill saw it as a “possibility” but one that would have resolved within six weeks.

21.     Mr Giagos, for Mrs Harley, submitted that the continued recommendation by Dr Perides of restrictions against working above shoulder height indicate the continuation of a shoulder condition.  We do not agree.  Such recommendations are nothing more than prudent medical advice concerning activities that Mrs Harley says cause her pain.  They do not amount to evidence of a condition.

22.     We have no reason to doubt Mrs Harley’s genuineness.  We consider she described her symptoms as best she could.  However, we conclude that any impingement syndrome that she may have suffered had resolved by at least June 2005.  Any enduring pain she experienced must, then, have been due to her cervical spine degeneration.  As discussed earlier, Mrs Harley’s degenerative cervical spine condition does not arise out of her employment.  We agree, therefore, that as at 10 November 2005, Mrs Harley suffered no effect from any shoulder impingement and so Australia Post, at that time and to date, had no current liability under sections 19 and 16 of the Act.

23.     It follows that Mrs Harley has no permanent impairment of her right shoulder.

decision

24.     The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of MS N BELL, Senior Member and Dr J CAMPBELL, Member

Signed:         ………… [Sanjiv Shah]…………
  Associate

Dates of Hearing  28 September 2006
  29 September 2006
Date of Decision  10 November 2006

Counsel for the Applicant         G Giagos
Solicitor for the Applicant          D Williams
Counsel for the Respondent     G Johnson
Solicitor for the Respondent     L Forner