Hawkins and Australian Postal Corporation
[2006] AATA 811
•7 September 2006
Administrative
Appeals
Tribunal
WRITTEN REASONS FOR ORAL DECISION [2006] AATA 811
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1063
GENERAL ADMINISTRATIVE DIVISION ) N2006/0170 Re CHERYLE HAWKINS Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and
Member, Dr Ion AlexanderDate7 September 2006
Date of Written Reasons 21 September 2006
PlaceSydney
Decision
The decisions under review are affirmed.
[Sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
WORKERS COMPENSATION – truck driver – shoulder injury – compensation for medical expenses and incapacity for work claimed - permanent impairment claim – decisions under review affirmed.
LEGISLATION
Sections 16, 19 Safety, Rehabilitation and Compensation Act 1988
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and is furnished to the Applicant and to the Respondent.
REASONS FOR DECISION
Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander 1. Mrs Cheryle Hawkins has worked for Australia Post since 1988. She is 55 years of age. She started working as a cleaner, and then became a courier driver. She has suffered various injuries at work, which are not relevant to this case, before 19 May 2004.
2. The injury the subject of this proceeding is an injury to her left arm suffered on the evening of 19 May and the morning of 20 May 2004. She filled out an incident report form for upper left arm injury whilst unloading a heavy box from the truck. A compensation claim was filled out on 1 June 2004, which specified a “tricep left arm upper. I suddenly felt pain in left arm as the mail early in the night was too heavy”.
3. Liability was accepted by Australia Post for left tricep strain on 21 June 2004. However, on 29 July 2005 a reconsideration officer affirmed a delegate’s decision made on 11 July 2005 finding no present entitlements to payment of compensation for treatment costs and/or time off work in respect of the injury. Mrs Hawkins seeks review of that decision.
4. In the meantime Mrs Hawkins has also claimed for permanent impairment.
5. Accordingly the issues for us to determine are:
(1) Does Mrs Hawkins have ongoing entitlements to incapacity payments and medical expenses pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988; and
(2) If so, does Mrs Hawkins have a permanent impairment under the guidelines?
Mrs Hawkins’s Evidence
6. Mrs Hawkins said that she began work at Australia Post in March 1988 as a cleaner for 12-months at the Rosebery Link Road courier base. She became a courier driver around Christmas 1988. She drove L300 vans, which are something like a Kombi van. In 1992, Australia Post couriers were taken over by another organisation and she went to the transport section within Australia Post. Her duties at first were emptying letterboxes on a key beat and returning the mail to the mail centre. Twelve months later she started on a truck roster. The trucks she drove varied from an open top 3-tonne truck to a 22-tonne truck. The latter carried 14 ULDs, a type of container, on two levels.
7. Up until 2004 Mrs Hawkins’s duties were the same. She could be driving any one of the four trucks during the day. They were three, five, seven, or fifteen tonne trucks. She had to load the trucks on her own. For the seven and fifteen tonne trucks she used a hand pallet. The three tonne or five tonne trucks could be hand-loaded. Air mail was also hand-loaded.
8. Mrs Hawkins gave evidence of various injuries she could recall while at Australia Post, but she could not recall other incidents. She said that she had a bad memory about pain, and usually tried to block them out. She has seen a number of doctors about this claim, and could not remember what she had told them about her shoulder pain and injury. She might have said that she had not had previous injuries.
9. She described how the May 2004 injury occurred. She started her shift at 5 pm. She was given keys to a five tonne truck. She drove from the Eastern Suburbs mail centre at Alexandria to the Qantas mail handling unit. She picked up ULDs on a hand pallet BT lifter, and then left Qantas and headed out to the Strathfield mail centre at about 6 pm. She unloaded at Strathfield with a ride-on lifter.
10. At 8.20 pm she was due at the airmail dock at Strathfield. She had to load large white trays and air mail. She reversed into the dock and put a conveyor belt halfway into the truck. The large white tubs were supposed to be 16 kilograms and large white trays 8 kilograms. She waited until Express Post bags were brought out. Two people put them onto the belt. They were supposed to warn her if they were heavy bags but they didn’t. The supervisor was standing nearby as well and was supposed to warn her but he also didn’t.
11. The bags were large, yellow Express Post, with “Express Post” written on them, and were supposed to weigh 16 kilograms. As they came down the conveyor belt she grabbed one. The weight fell to the middle of the bag and she screamed out it was heavy. She felt a twinge in her left shoulder but continued to load the truck. She felt that she had pulled something at the back of her left shoulder. It lasted a couple of minutes. She finished loading the truck and sealed the back doors. She loaded about 40 bags.
12. The heavy bag was in the middle of the Melbourne mail, which was usually the first loaded onto the truck, so she said it was about 10 bags in. She felt nothing after that bag at that time. She told people loading the bag that it was heavy, and that they were supposed to tell her but they said “You are supposed to look”. After that, she let the bags fall onto the bottom of the truck and didn’t touch them.
13. When she got back to the airport she had help to unload. She said that she didn’t want to do any more damage to her arm. She knew there was a problem from the twinge that she had got earlier. She was angry because she had asked for help and they hadn’t given it to her. She had no further symptoms until her second run to the airport at 2 am. The twinge had occurred at 9 pm.
14. After she had taken the mail to the airport, she returned to Strathfield, had a meal break at about 11 pm, and went back to the dock at 12 am. She had the same truck, hand-loaded it using a conveyor belt, drove back to the airport – again with assistance unloading at the airport – and she was fine while loading the white tubs and cardboard trays and a couple of express bags, although they were heavy.
15. Back at the airport again she had assistance to unload, then she had to return to the Eastern Suburbs mail centre, had a break of half an hour until 1.30 am. She then picked up a three tonne pop-top truck, which was at the bottom of the yard. She felt excruciating pain when she tried to put that truck into gear to drive it to go back to Strathfield. “The gear was a bit tight. You get used to that”, she says, but when she pushed it in a forward movement she felt excruciating pain and she screamed out. She said she felt the pain in the same place as she had felt the twinge earlier at 9 or 10 pm. She said that the pain was a level of 9 or 10 (out of 10) and remained that way. She went inside and reported it. She was holding her arm and then later on she had to keep going, because they had no spare people to do her job, but she said “You’d better organise someone to load the truck at Strathfield and unload in the city”, which she said was done.
16. She said from the time in the office driving caused pain, especially when she changed gears, and the level of pain stayed about the same. She finished at about 3.30 am, from the depot at Eastern Suburbs, filled out her P400 incident claim, drove home, took two Mersyndol Forte when she got home, which she has for chronic migraine, and went to bed. She woke up at lunchtime and was due to go back to work at 5 pm, and then she went off to see an Australia Post doctor at Fairfield called Dr Pope.
17. She worked Sunday night on airmail and was in pain, and told the overseer that she wasn’t allowed to do air mail. But she did it and loaded and unloaded the truck which brought the pain back to a level of 8 or 9. She has not taken any more medication since that first night.
18. Later on she has had some physiotherapy, after Australia Post accepted liability. She said that she had had that treatment every day for an hour, five days in a row, for about four weeks, and then the physiotherapist disappeared, and she started to go to a back doctor at Liverpool for physiotherapy. At one stage she was paying for it herself, from the beginning of September 2004 until January 2005, and she has not had any physiotherapy or any other treatment since January 2005.
19. She described how on about 11 July 2005, when her condition was considered no longer compensable, she still had pain varying from 5 most of the time and up to 8. She continued her full duties except air mail – she had some restrictions on lifting – until about July 2005 when Dr Pope took her off trucks. However, in about January of this year she has obtained another certificate from Dr Pope to the effect that she can drive 15 minutes an hour, and she now has a job as a shuttle driver, as we understand it.
20. In relation to her domestic duties, she still does everything, although she is in pain. She said she can’t afford to have somebody come in. She has a break hanging out the washing, one load to the next, and she may leave it on the line for some days before she gets it in. She said her husband comes shopping and carries the shopping. He carries the heavy articles. She describes some limitations in relation to holding her older grandchildren.
21. In relation to her ability to carry, there was a surveillance video which we were shown, which became evidence. Our observations in relation to that were that she displayed no apparent unease in relation to her left arm. She is a right-handed lady. However, she was apparently able to lift, contrary to her evidence of cross-examination, a three litre milk plastic container, and also some soft drink bottles.
22. We also note that she has given a number of different histories to doctors about the site of her pain, the extent of symptoms ranging to having tingling in her hands. We don’t go into detail in relation to that. However, what we do say is that we consider her evidence to be unreliable given the range of histories, the surveillance video, and the different symptoms that have appeared over time, and her apparent ability to continue to work until July last year, essentially with only lifting restrictions; and then again, that she can now drive a truck for 15 minutes a day from January, and she has had no treatment really, except some physiotherapy, and she has only taken Mersyndol on the morning after the initial excruciating pain.
23. Coming to the medical reports, we accept that Mrs Hawkins did suffer an injury on or around 19 and 20 May 2004, and on her evidence that she has suffered excruciating pain and, as I have indicated, the nature and severity of that injury is not clear. At the time when she saw Dr Pope on the same day, his clinical records state “Upper left arm injury”. Two certificates were provided declaring Mrs Hawkins unfit for work until 8 June, with a diagnosis of left triceps strain, with a stated need for physiotherapy. A certificate on 10 June stated that Mrs Hawkins was fit for work with a 10 kilogram weight limit and a continuing need for physiotherapy. On 22 June Dr Pope noted “painful left shoulder and arm from heavy lifting mail bag one month ago.”
24. An ultrasound of her left shoulder on 29 June 2005 suggested a partial tear of left supraspinatus tendon, with no impingement on abduction. X-rays of cervical spine done on the same day were reported as showing lower degenerative osteoarthritis affecting the left C2/3 and C3/4 facet joints.
25. Dr Whittaker, rheumatologist, first saw Mrs Hawkins on 7 July 2004. The history he noted was that she developed sharp left tricep region pain. Following a physical examination he concluded that the applicant had symptomatic supraspinatus tendonopathy, with a partial thickness tear suggested on ultrasound. He conceded in the report that, given the general nature of her work duties, it is likely that there is work-related contribution to her current complaints. He indicated that an MRI would be useful in further assessing Mrs Hawkins’s condition.
26. There was an MRI scan on 8 July 2004, which reported “a partial thickness tear of the articular surface of the tendon of the infraspinatus”. Mrs Hawkins was referred to Dr Bokor, orthopaedic surgeon, by Dr Pope. In his report, dated 12 July 2004, after reviewing the ultrasound and MRI, Dr Bokor stated that “There may be a small partial thickness rotator-cuff tear involving the posterior supraspinatus.” He concluded that “Mrs Hawkins’ clinical features are primarily those of cervico-brachial irritation with some minor secondary rotator-cuff tendonosis.”
27. Mrs Hawkins had many subsequent visits to Dr Pope with neck and shoulder pain and a variety of other symptoms.
28. An ultrasound of the left shoulder dated 4 February 2005 reported abnormalities consistent with a partial tear of the supraspinatus tendon. The report noted no impingement on abduction. This would lead us to conclude that Mrs Hawkins was able sufficiently to abduct her arm for such a conclusion to be reached.
29. Dr Whittaker saw Mrs Hawkins again on 28 April 2005, and confirmed her previous history of the events in May 2004. He reviewed the result of the MRI of 8 July 2004, and the ultrasound of 4 February 2005. He concluded that the MRI demonstrated abnormalities which are most likely the result of age-related degeneration, rather than a specific or isolated incident or injury. On this occasion he noted improvement in Mrs Hawkins’ physical signs, with full shoulder movements, and noted that:
”Independent testing of all the rotator-cuff tendons was unremarkable, with well-preserved strength and pain-free loading manoeuvres.”
30. He went on to say that in his opinion, Mrs Hawkins’s ongoing symptoms were not the result of her left shoulder pathology, and may be related to pathology in cervical spine and recommended a cervical spine MRI scan. Such a scan was done on 24 May 2005, and was reported as normal for her age.
31. In a supplementary report dated 4 July 2005, Dr Whittaker reviewed the report of the cervical spine MRI scan, and then attributed her symptoms to “the various pathologies that have been demonstrated in the left shoulder, particularly on the MRI dated 8 July 2004”, but affirmed his opinion that Mrs Hawkins was suffering from a constitutional disorder that is not related to the May 2004 incident.
32. His opinion was that the partial thickness tear noted on the MRI is secondary to degenerative rotator-cuff tendonopathy. In his oral evidence, he indicated that in this condition the symptoms are variable and may come on spontaneously, and that they are not always consistent with the scan abnormalities. An MRI arthrogram of the left shoulder was performed on 21 June 2005, and reported as normal. Particularly, there was no evidence of rotator-cuff tearing.
33. Dr Goldberg, orthopaedic surgeon, saw Mrs Hawkins on 22 June 2005. This was an opinion that Mrs Hawkins herself had initiated. In his report, Dr Goldberg states that on examination Mrs Hawkins had a very unusual pain response. Her neck was tender with limited movement. He noted that the MRI with intra‑articular gadolinium confirmed “an absolutely normal rotator-cuff, with no evidence of any significant pathology apart from normal age-related changes”. He opined that Mrs Hawkins “has a severe soft tissue injury in the form of a traction‑type injury”.
34. Dr Evans saw Mrs Hawkins on 8 December 2005. On examination he found global reduction of movement in the left shoulder, and concluded that the most likely diagnosis is “damage to the rotator-cuff of the shoulder”. In his oral evidence he conceded that his findings were dependent on the co-operation of Mrs Hawkins, and he implied that his opinion took the form of an hypothesis. On questioning as to his area of practice he was unable to persuade the Tribunal that he had any significant expertise in the area of shoulder injuries. Therefore we place little weight on his opinion. However, we do note that he did comment that there was an over-reaction on the part of Mrs Hawkins.
35. Associate Professor Oakeshott, rehabilitation specialist, saw Mrs Hawkins on 22 December 2005. He noted that despite her stated symptoms, she was not having any form of therapy, taking no medication, and no analgesics for pain relief. He said that at the time of the consultation he observed that she was “able to move her left arm through a reasonable range of movements without any discomfort”. However, on formal examination, Mrs Hawkins “would barely let me touch the skin of her left shoulder or any part of her left arm because of alleged tenderness”. On repeated examination, when she was distracted, the tenderness was not apparent and the doctor concluded that Mrs Hawkins was exaggerating the tenderness.
36. Also during formal examination, Mrs Hawkins would barely move her left arm or hand. Professor Oakeshott stated that he was “unable to identify any objective clinical evidence of any physical injury that could account for Mrs Hawkins’ symptoms”. At the hearing, Professor Oakeshott was asked to reconsider his opinion in the light of Mrs Hawkins’s oral evidence about the circumstances of the May 2004 episode. He affirmed his original opinion as already stated.
37. Dr Pope provided a summary report dated 24 February 2006. His diagnoses were degenerative condition of the left rotator-cuff, reactive depression to the injuries and circumstances, menopausal depression aggravated by work-related injury. The report was somewhat superficial and provided no coherent reasoning to support a conclusion that her symptoms are causally related to her work. We also note that there was a report of Dr Sambrook, rheumatologist, that was not admitted into evidence that was the subject of legal professional privilege. We draw the inference that that report would not have assisted Mrs Hawkins’s case.
38. At the hearing, Dr Whittaker and Professor Oakeshott were asked to comment on the apparent discrepancies between the two MRI examinations. Neither was able to give a definitive explanation. Dr Whittaker considered that it was merely the result of different radiologists reporting on the scans. Professor Oakeshott suggested that the described abnormality was relatively minor and may have spontaneously repaired. The medical evidence is not consistent and does not provide a definitive explanation of Mrs Hawkins’ symptoms.
39. It is clear that part of the difficulty lies in the reliability, or should we say the unreliability, of her history, particularly with regard to the nature and severity of her symptoms. We accept that in May 2004 she may have suffered some injury as evidenced by her complaint of pain. We accept that subsequent investigations support a proposition that she has some abnormalities in her left shoulder. However we are not satisfied that the episode described in May 2004 has resulted in an injury that is ongoing and is the cause of her current symptoms.
40. We are also not persuaded that she has significant rotator-cuff pathology to explain her complaints. In doing so, we take particular note of the reports of the two orthopaedic surgeons, whom we consider would have special expertise in the management of shoulder injuries. We accept that it is possible that Mrs Hawkins has some age-related degenerative changes in her left shoulder joint and that from time to time she may have temporary symptoms which are contributed to by her work.
41. In reaching our conclusion we note particularly that, despite a claim of persistent severe pain the applicant has had little treatment and does not appear to need medication for pain relief. Accordingly, for those reasons, we conclude that Mrs Hawkins is not entitled to continuing section 16 and section 19 compensation. Also, we are not satisfied that she has a permanent impairment in accordance with the compensation guidelines.
42. The decisions under review are affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr Ion Alexander.Signed: Ms Preethi Nimmagadda
AssociateDate of Hearing 5 & 6 September 2006
Date of Oral Decision 7 September 2006
Date of Written Reasons 21 September 2006
Solicitor for Applicant Slater & Gordon Lawyers
Counsel for the Applicant Mr David Richards
Solicitor for the Respondent Graham Jones Lawyers
Counsel for the Respondent Miss Rhonda Henderson
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