Hastedt and Australia Postal Corporation
[2006] AATA 505
•9 June 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 505
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1599
GENERAL ADMINISTRATIVE DIVISION )
Re GARY HASTEDT Applicant
And
AUSTRALIA POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member Robin Hunt
Member Dr Ion Alexander
Date9 June 2006
PlaceSydney
Decision The tribunal affirms the decision under review.
[SGD]
Ms R Hunt
Senior Member
CATCHWORDS
COMPENSATION - Workplace Injury - injury to shoulder - claim for continuing compensation payments – claim for compensation for medical treatment – finding that current symptoms not due to work related injury.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19, 24 and 27
Administrative Appeals Tribunal Act 1975 section 29
REASONS FOR DECISION
9 June 2006 Senior Member Robin Hunt
Member Dr Ion AlexanderSUMMARY
1. Mr Gary Hastedt, the applicant, applied for review of a decision that Australia Post has no present liability to pay him compensation under any of sections 16, 19, 24, 27 and 29 of the Safety, Rehabilitation and Compensation Act 1988. Australia Post on 28 October 2004 made a reviewable decision affirming a determination made on 19 August 2004 that there was no causal nexus between Mr Hastedt’s current shoulder problems and his employment. The tribunal has decided, on the balance of probabilities, that Mr Hastedt’s left shoulder pain is not attributable to the workplace accident of 5 April 2000 and that he is not continuing to suffer from any compensable injury.
BACKGROUND
2. Mr Hastedt suffered several accidents in the course of his employment by the respondent, Australia Postal Corporation. He complained that he continued to suffer a left shoulder condition that arose during the course of his employment. On 12 April 2000, Australia Post accepted liability under section 14(1) for Mr Hastedt’s injury on 5 April 2000 and paid some medical expenses around that time. On 10 June 2004, Mr Hastedt requested that his claim be re-opened and he supplied a medical certificate from his GP to the effect that Mr Hastedt had presented to him several times with left shoulder pain stemming from the accident on 5 April 2000. On 28 October 2004 a reconsideration officer affirmed a determination made on 19 August 2004 that there was no present compensation payable as a result of the 5 April 2000 incident or arising out of Mr Hastedt’s employment.
ISSUES
3. The issues for the tribunal were whether Mr Hastedt, as at 19 August 2004, continued to suffer left shoulder symptoms arising from a work accident on 5 April 2000. If so, the next question was whether he was entitled to compensation payments under the Safety, Rehabilitation and Compensation Act 1988.
ANALYSIS AND FINDINGS
4. On 5 April 2000, Mr Hastedt fell off his motor bike while on his “beat” as a postal delivery officer for Australia Post. Mr Hastedt sustained injuries to the left side of his body, including his left shoulder. Dr Khan saw him at Cessnock Hospital and furnished a medical certificate on that occasion. Australia Post acknowledges that Mr Hastedt lodged an incident report and accepted liability shortly after the accident. In addition, Australia Post acknowledges that Mr Hastedt had motorbike accidents in the course of his employment on 20 December 1990, on 15 July 1992 and again on 5 April 2000.
5. On 12 April 2000, Australia Post it accepted liability for Mr Hastedt’s injuries to his left shoulder, elbow, knee and leg. It accepted additional liability on 13 May 2003 for deep lacerations to Mr Hastedt’s left forearm after he was attacked by a dog while delivering mail on 2 May 2003. Mr Hastedt’s GP, Dr Dobler, furnished a medical certificate for the laceration on 5 May 2003. Dr John Graham, Occupational Physician, furnished a report about Mr Hastedt’s condition on 20 May 2003, observing that the dog attack injury had almost completely healed but that full recovery might take a couple of months.
6. Australia Post received a letter, dated 10 June 2004, from Dr Dobler, advising that Mr Hastedt had presented on a number of occasions with left shoulder pain. When Dr Dobler advised that Mr Hadstedt was suffering left shoulder pain, he wrote that he believed this was a result of his injury “of 5 April 2000”. An officer approved an ultrasound examination. Australia Post noted in its statement of facts and contentions that the ultrasound indicates supraspinatus changes suggestive of an old lamellar tear, no evidence of a significant current tear or tendinosis, mild bursal thickening and impingement, and some suggestions of long standing mild chronic tendinopathy. While Australia Post accepts that Mr Hastedt has continuing left shoulder symptoms, it argues that these symptoms are not work related and not as a result of the 5 April 2000 incident. If this is correct, Mr Hastedt is not entitled to continuing compensation.
7. The evidence points to Mr Hastedt currently having left shoulder pathology which causes some symptoms and impairment. This evidence is based on 3 premises:
(a)his history of symptoms;
(b)physical examination by medical practitioners; and
(c)abnormalities of the left shoulder described in an ultra sound examination in 2004.
8. The critical issue is whether, at the time of the accident in 2000, Mr Hastedt sustained an injury that can be regarded as the cause of the subsequent symptoms and impairment as claimed. Several doctors have furnished reports and opinions that are before the tribunal. The opinions are not all consistent as to the cause of Mr Hastedt’s problems.
9. Mr Hastedt told the tribunal that he had started working for Australia Post in 1977 and, apart from some time away in 1987 and 1988 and a return to part time work in 1989, he had continued full time with the organisation. In 1990, he had a fall from his motorbike when delivering mail and had hurt his shoulder. He said it had been sore for about 6 months and he continued to have a cracking sensation sometimes. The top of his left shoulder hurt. He had another fall because of a low tree branch and this aggravated the injury to the top of his left shoulder. He suffered further incidents in 1992, 1996, 2000, 2001 and 2003 as set out in the documents supplied to the tribunal by Australia Post.
10. Mr Hastedt gave further oral evidence that, after the fall on 5 April 2000, his left shoulder hurt at a point near the front rather than at the top where he had previously hurt the same shoulder. He had taken a bad fall and had scrapes and pain all down his left side, in the shoulder, in one left rib, left stomach muscle and left shin. People at the scene had helped him and he rode the bike back to work although he was very sore. The manager took him to Cessnock Hospital for x-rays and Dr Khan treated him at the hospital. Although Dr Khan had certified that he needed to take two days off work and he did not want to get out of bed, the manager collected him from home the day after the accident and took him to Wallsend hospital where he saw Dr Raffan. Dr Raffan said he was fit to perform light duties so he returned to work although Dr Khan had certified him unfit and he still felt very poorly. From then on, Mr Hastedt continued to work although he was still suffering. He told the tribunal he just put up with the discomfort. He had since seen his GP about the pain several times and had cortisone injections from time to time. He had his last cortisone injection in about September 2005.
11. Mr Hastedt gave evidence he could not do tasks that he had no trouble with before the accident. He could not unload trucks at work any more and had a problem lifting above shoulder height. He also could no longer perform some domestic tasks like chopping wood. He could not reach goods with his left hand on high supermarket shelves. His son did some jobs at home now instead of Mr Hastedt because of the shoulder problems. Mr Hastedt said he could no longer swim overarm, go canoeing or play golf. He had some restrictions when dressing and difficulty putting on a coat. Under cross-examination, Mr Hastedt gave evidence that Dr Khan whom he saw at Cessnock Hospital, was an associate of Dr Dobler, his usual GP. Dr Khan had prescribed some pain killers but he had not seen him again. He later continued to see his usual doctor, Dr Dobler.
Evidence of Dr Griffith
12. Dr Griffith, in his report of 30 May 2005, recorded a history of injury to the left shoulder in 1990 and Mr Hastedt’s previous workers’ compensation claims made in April 2000 and 2003. He noted that, after the April 2000 incident, the left shoulder symptoms did not settle and Mr Hastedt reported persisting sensation of what he described as “tightness in the joint, which clicked and clunked” with use.
13. Dr Griffith further noted the injection of subacromial steroid in 2001 “produced relief for some two to three months” with a second injection in late April 2004. Dr Griffith wrote that Mr Hastedt recalled that he had received radiology at Cessnock Hospital in 2000, but noted that neither reports nor films were available. Dr Griffith referred to a report of Dr Dobler, dated 23 June 2004, which reports on an old partial tear of the left supraspinatus adjacent to an insertion, a bursitis with thickening of the coracoacromial ligament, and pitting of the greater tuberosity consistent with chronic degenerative change. Dr Griffith agreed with the radiologist, Dr G. William’s, conclusion that long standing mild chronic tendinopathy and chronic subacromial bursitis with impingement was consistent with the current clinical picture. He noted current physical symptoms as left shoulder pain aggravated by certain activities.
14. Dr Griffith’s opinion is that Mr Hastedt’s current problem with his left shoulder is directly causally related to the April 2000 accident. His opinion is that Mr Hastedt has chronic subacromial bursitis following an acute injury to the bursa complicated by subsequent chronic irritation. He also concluded that Mr Hastedt had problems with the left “rotator cuff” but he felt they were of lesser importance. He thought that the recommended treatment should result in full recovery.
15. We are of the view that Dr Griffith’s opinion as to the “index incident” in April 2000 was based on the history given by Mr Hastedt, particularly that Mr Hastedt was essentially asymptomatic with regard to his left shoulder prior to the accident. In his consideration, Dr Griffith does not consider any alternative causal factors which could explain Mr Hastedt’s symptoms. Apart from work related incidents, Dr Griffith did not elicit any significant history as to Mr Hastedt’s domestic or recreational practices which could have caused Mr Hastedt’s problems, for example, his evidence at the tribunal hearing that he had done push-ups regularly since childhood. During his oral evidence, Dr Griffith conceded that an acute injury to the “rotator cuff” or the subacromial bursa would usually be associated with significant symptoms that would take up to 3 months to resolve. Therefore, a critical issue is whether there is evidence to support the contention that Mr Hastedt had significant symptoms with regard to the left shoulder in the 3 months after the April 2000 incident. Apart from Mr Hastedt’s claims, there is no objective evidence to support this contention.
16. Dr Griffith was not given an opportunity to comment on the additional information in the hospital record and the GP’s notes. Dr Griffith gave evidence he had no information other than that given by Mr Hastedt. He was asked about the opinions of other doctors who had seen Mr Hastedt and told the tribunal he agreed with the opinions of Dr Breit and Dr Pillemer. Dr Griffith disagreed with Dr Whittaker. He said he had one note from Dr Dobler asking for reconsideration but had no clinical notes. He said it was possible that some other incident might have contributed to Mr Hastedt’s condition but the history almost ruled out any cause other than the 2000 accident.
Cessnock Hospital records 5th April 2000
17. On the 5th April 2000 Mr Hastedt was seen at Cessnock Hospital following the bike accident. The entry in the hospital’s notes states:
Pt had a MBA approx 1500 at work Pt sustained grazes, abrasions of (L) shin, (L) forearm (underside), (L) knee. Pt landed ”………….. “landed on (L) shoulder and rib area. both painful.
18. Mr Hastedt was examined at 6.05 pm and the notes included an entry that stated “(L) shoulder movements OK”. The report of a subsequent X-ray of the left shoulder stated “No fracture or subluxation seen.”
19. The hospital records go on to show that Mr Hastedt was discharged home on the same day with some oral analgesic and a certificate for two days off work. This history of the event is not consistent with a significant shoulder injury. While we accept that Mr Hastedt had a very nasty accident and would have preferred to rest the following day rather than be subjected to further examinations, the second doctor, Dr Raffan, who saw him on the following day also certified that he was fit to return to work, albeit with light duties.
Dr Dobler’s Private Practice Progress Notes
20. An entry on 27 June 1998 states:
‘3-4 yrs ago fell over & injured the left shoulder >ex programme.
Sounds like rotator cuff problem …. pain in (L) shoulder ++ …..
? impingement of supraspinatus > Xray & R/V ? Depot + local”
Cessnock Hospital records 27th June 1998
21. From the records before us, we further note a reference to Dr Dobler as follows:
Dobler
1550
(L ) shoulder pain Xray NAD
(L) shoulder impingement syndrome
Depomedrol + local to (L) shoulder”
22. Further from the hospital records, we note a report of an Xray of the left shoulder dated 27 June 98:
“There is some sclerosis of the greater tuberosity with a small area of calcification immediately above in the region of the supraspinatus tendon. No further bone or joint abnormality seen.”
23. It is clear that Dr Dobler diagnosed and treated Mr Hastedt for left shoulder impingement syndrome in June 1998. This represents clear evidence that Mr Hastedt had significant problems with his left shoulder prior to the incident in 2000. The doctor’s notes point to a conclusion that the injury that is causally related to the ongoing shoulder problem was, on balance, not work related. In addition, there is no convincing evidence to support a proposition that the primary injury occurred with the bike accident in 1990.
Dr Roger Pillemer, Orthopaedic surgeon
24. In a report dated 19 August 2005, Dr Pillemer noted a history of injury on 5 April 2000 with ongoing and worsening of symptoms since that incident. He also noted a past injury to left shoulder that occurred in 1990. He also noted that Mr Hastedt claimed to be a “fitness fanatic” doing such activities as running, sit ups and push-ups. Unfortunately, Dr Pillemer made no assessment as to the relevance of these activities to Mr Hastedt’s problems.
25. Dr Pillemer concluded that Mr Hastedt had sustained an injury in 1990 with mild intermittent problems since then. He opined that the injury on 5 April 2000 was a “substantial contributing factor” to Mr Hadstedt’s ongoing symptoms. Dr Pillemer diagnosed:
“significant impingement in his left shoulder with supraspinatus tendinopathy and I would also suggest subacromial bursitis and a ruptured long head of biceps”.
26. When Dr Pillemer was questioned before the tribunal about the ruptured long head of biceps, we observed that Dr Pillemer’s response was guarded. This resulted in our not being convinced by his assessment without further supporting evidence. In our view, Dr Pillemer’s conclusions were based on the assumption that Mr Hastedt’s version of events was correct and were also influenced by Dr Dobler’s report of 13 April 2005. Dr Pillemer made no attempt to consider alternative explanations for Mr Hastedt‘s symptoms. While we found Mr Hastedt responded to close questioning, we are critical of Dr Pillemer’s approach to Mr Hastedt’s history because of his failure to take note of incidents and exercise patterns which were disclosed but not taken into account in considering the cause of Mr Hastedt’s current condition.
27. Dr Pillemer was provided with the additional information contained in the Cessnock hospital notes and Dr Dobler’s records. In a supplementary report Dr Pillemer conceded that:
“it is very difficult to try and assess the extent of the aggravation of his underlying shoulder problem that was caused on 5 April 2000”
and suggested that Mr Hastedt’s GP is the only person able to answer the question. We take the view that this assessment of the situation is more accurate than the first report. We consider Dr Pillemer’s opinion that the 2000 accident is the cause of Mr Hastedt’s condition should carry little weight. His history taking was inadequate and his conclusions as to cause were based on assumptions and speculation.
Dr Dobler - Family Physician
28. In June 2004, Dr Dobler recommended and arranged through Australia Post for Mr Hastedt to have an ultrasound examination of his left shoulder. The ultrasound report on 23 June 2004 by Dr Garvin Williams concluded :
“ 1.Supraspinatus changes suggest an old lamellar tear. No evidence of significant current tear or tendinosis.
There is mild bursal thickening and impingement which could be clinically symptomatic. There are some suggestions of long standing mild chronic tendinopathy resulting in the greater tuberosity changes which would be better defined with the xray.”
29. In a subsequent letter, dated 16th September 2004, Dr Dobler asserted:
“there is no doubt in my mind that the injury of 2000 caused this tear given the original symptoms and the mechanism of injury”.
In a further report dated 13th April 2005 Dr Dobler wrote:
“Mr Hastedt suffered an injury at work on 5 April 2000 in which he fell from his motor bike and struck his left shoulder… .He was initially seen be another general practitioner… and was prescribed analgaesia and given time off work. He was then able to return to light duties and subsequently full duties. …….I first saw Mt Hastedt in regard to his shoulder injury in 2001 (emphasis added) and have seen him on some eight occasions since that time. I have diagnosed him initially with an impingement syndrome of the left shoulder”.
He goes on to say
“I believe the evidence suggests that Mr Hastedt’s current symptoms and disability are due to the left shoulder injury of April 2000 (emphasis added).
30. Referring again to Dr Dobler’s practice records we note that Dr Dobler did in fact see Mr Hastedt in September 2000 when he was consulted by Mr Hastedt about symptoms in the right foot. There was some reference to an injury to the back and side following a fall from a bike. The only reference to the shoulder was an entry which stated “shoulder very good“ and did not suggest any relationship to the recent fall from a bike.
31. In our opinion, Dr Dobler’s conclusions are not supported by his own clinical records. His assertion as to the causal relationship between the April 2000 incident and Mr Hastedt’s current impairment amounts to mere speculation. In his report he made no reference to the 1998 episode where he first recorded a diagnosis of impingement to the left shoulder following a non-work related incident. Furthermore he made no evaluation of Mr Hastedt’s domestic and recreational activities. We therefore attach little weight to Dr Dobler’s report.
Dr Breit Orthopaedic Surgeon
32. Dr Breit provided a report dated 11 January 2006. The report noted the history of the April 2000 incident. The report set out no history of any previous incidents and no history of recreational or domestic activities. Dr Breit referred to the ultrasound report of 23 June 2004 and wrote that it:
“shows a deep partial thickness tear of supraspinatus, some bursitis and the report indicates impingement which is dynamic and can only be seen at the time of scanning.”
He went on to make a final diagnosis of:
“Left rotator cuff impingement/tendinosis, partial and possible full thickness rotator cuff tear. The ultrasound shows the presence of a significant partial thickness articular sided cuff tear which may with time progress to a full thickness tear.”
33. It is not clear from his report whether Dr Breit was relying on his own interpretation of original films, or the report itself. Dr Breit’s written interpretation is different from the report. Dr Breit does not explain the differences between the original report and his interpretation. He asserts that the injury described by Mr Hastedt in April 2000 is consistent with a rotator cuff injury and states that:
“There is no evidence to suggest a constitutional phenomenon, he was previously asymptomatic and his sporting activities are not in those categories which have any association with rotator cuff pathology”.
34. Dr Breit did not refer to the 1998 incident. At the hearing it was not clear whether Dr Breit had been provided with the documentation about the events of 1998. In the course of submissions we were asked by Mr Hastedt’s counsel to assume that Dr Breit had been supplied with the relevant records and that he had in fact seen these records. If we were to accept this, we consider Dr Breit’s failure to acknowledge these records could be seen as professionally improper therefore we prefer to assume that he did not have access to this information. Dr Breit gives no indication as to which sporting activities he had considered. If he did take these into account, his report would have been greatly enhanced by an explanation of the activities that had formed part of his consideration.
35. In addition, we were asked by Mr Hadstedt’s counsel to consider Dr Breit’s evidence above all others as he was a shoulder specialist. Apart from Dr Breit’s letterhead stating “shoulder surgery” among other services offered we had no evidence which would support such a claim. The CV which was subsequently provided to us did not assist on this issue. We are not prepared to concede on the evidence that Dr Breit has a particular expertise in this area of practice sufficient to allow us to consider his evidence as being superior to that of the other specialists.
The fall in 1990
36. We acknowledge that an earlier fall occurred during work in 1990 but there is insufficient evidence that would persuade us that Mr Hastedt’s current problems were causally related to this incident. The mere fact that it occurred in the past is not sufficient and a link to Mr Hastedt’s condition is mere speculation.
37. We note that, in April 2003, Mr Hastedt suffered an injury to his left forearm following a dog attack. Subsequent to his recovery, he was assessed by Dr Graham, Occupational Medicine Physician, in May 2003. In the course of this assessment, that was primarily directed at the left forearm injury, Dr Graham examined Mr Hastedt and wrote in his report that:
“He has a full active range of movement of the left upper extremity from the shoulder to the digits”
38. We were asked by counsel for Mr Hastedt to disregard this examination on the grounds that Dr Graham was only asked to comment on the forearm injury. However, we have no reason to believe that Dr Graham’s examination of the left arm was less than thorough and would have included an assessment of the active range of movement of the left shoulder. At best, this provides some evidence as to the variability in Mr Hastedt’s symptoms and impairment and at worst creates doubt as to the correctness of Dr Dobler’s opinion.
Dr Whittaker, Rheumatologist
39. Dr Whittaker provided a report dated 22 July 2004. In his history, he noted the event of April 2000 and the reported sequelae. He also noted that Mr Hastedt was no longer able to undertake his home exercises which had included regular push-ups and working out on a punching bag. Dr Whittaker concluded that Mr Hastedt had “left cuff tendinopathy” and that “given his improvement with steroid infiltration”, there had been subacromial bursitis with impingement that had resolved.
40. Dr Whittaker opined that it is Mr Hastedt’s:
“age and various sporting/leisure/recreational pursuits in the past (and ongoing) that are the significant contributing factors to his left shoulder pathology.”
41. At the time of the initial report, Dr Whittaker had not been provided with the ultrasound report of July 2004. The ultrasound report and the additional September 2004 report from Dr Dobler were provided to Dr Whittaker in October 2004. After having considered this additional information, Dr Whittaker concluded that:
“There is no temporal relationship between the incident dated 5 April 2000 and the various pathologies that have been subsequently demonstrated in his left shoulder.”
42. We note that Dr Whittaker’s history and analysis was reasonably comprehensive. He did not elicit the 1998 information but we agree that this would only support his analysis. In passing, we note that Mr Hastedt’s sick leave record indicated leave on 26 June 1998 for shoulder injury but that there is no associated incident report.
Our conclusions
43. There is no dispute in this case that Mr Hastedt has problems with his left shoulder. There is some dispute as to the severity of the current problem and the degree of impairment. However, the critical question is one of causation and the relationship to work. The value of the medical evidence with regard to causation is limited by the quality of the medical histories and the failure to adequately evaluate the contribution of Mr Hadstedt’s domestic and recreational activities.
44. The most persuasive evidence is the objective evidence contained in Dr Dobler’s clinical records. This points to the conclusion that Mr Hastedt was injured during non-work activities prior to 1998. There is no persuasive evidence that links the 1990 incident with Mr Hastedt’s current problems. To suggest that the April 2000 accident is the index injury is contrary to the evidence we have outlined above.
45. Hence, we have reached the conclusion, on balance, that Mr Hastedt’s left shoulder pathology is not attributable to the workplace accident of 5 April 2000 and that he is not continuing to suffer from any compensable injury.
Decision
46. The decision under review is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: .....................................................................................
AssociateDate/s of Hearing 30 – 31 March 2006
Date of Decision 9 June 2006
Counsel for the Applicant Mr D Richards
Solicitor for the Applicant Verity Firth
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Graham Jones
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