Jackson and Australia Postal Corporation
[2007] AATA 41
•31 January 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] aata 41
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/679, Q2006/663
GENERAL ADMINISTRATIVE DIVISION )
Re DARRIN LEE JACKSON Applicant
And
AUSTRALIA POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member P McDermott R.F.D
Dr M Denovan, MemberDate31 January 2007
PlaceBrisbane
Decision The Tribunal affirms the decisions under review in application Q2005/679 and Q2006/663.
........[Sgd].........
P McDermott
Senior Member
CATCHWORDS
COMPENSATION – right shoulder condition – left knee condition – incapacity payment – lump sum compensation – 20% permanent impairment rating previously awarded for left knee injury – injuries found not to be work related – medical evidence that applicant can return to work – decision affirmed
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19
Ileris and Comcare (1999) 56 ALD 301
REASONS FOR DECISION
31 January 2007 Senior Member P McDermott
Dr M Denovan, MemberIntroduction
1. Mr Darrin Lee Jackson is an employee of the Australia Postal Corporation (’the Corporation’). He has complained of a right shoulder condition that he has sustained by reason of his employment with the Corporation. We have to decide whether he is entitled to receive incapacity payments and lump sum compensation in respect of this condition.
Background
2. Mr Jackson was born on 1 March 1968. He is a Postal Delivery Co-ordinator at the Arundel Delivery Centre. His duties at the Centre include the sorting of letters and parcels. He is also required to drive a forklift as part of his duties of handling and lifting mail which is stored in containers.
3. On or about 13 November 2003 Mr Jackson was performing mail sorting duties at the Arundel Delivery Centre when he experienced severe pain in his right shoulder area. He attended the Mudgeeraba General Practice on that date and was then issued by Dr Miller with a compensation certificate which stated that he was suffering from a “rotator cuff syndrome right shoulder”. Dr Miller stated in the certificate that Mr Jackson would be fit to return to work on 17 November 2003. He recommended that Mr Jackson undertake physiotherapy.
4. An incident report was completed and lodged by Mr Jackson on 14 November 2003 in which he made the remarks “no incident just noticed pain was getting worse”. The supervisor noted that there was no reported incident.
5. On 8 December 2003 Mr Jackson attended the Mudgeeraba General Practice and was issued with a compensation certificate which stated that he was fit to perform restricted duties of 4 hours a day in a 5 day working week. On 15 December 2003 he was issued with a compensation certificate which stated that he was fit to perform restricted duties of 5 hours a day in a 5 day working week.
6. On 23 January 2004 a determination was issued whereby liability was accepted for sub-deltoid bursitis of the right shoulder. An ultrasound study on 18 November 2003 had diagnosed Mr Jackson as suffering from a sub-deltoid bursitis of the right shoulder. In the determination, the date of injury was determined as 13 November 2003.
7. On 29 January 2004 Mr Jackson was examined by Dr S Goode who stated that there was a full range of movement of the right shoulder with only a slight loss of internal rotation. Dr Goode considered that Mr Jackson was fit for only four hours of restricted duties a day and that he should not lift a weight greater than 8 kg and should not work above his shoulder height. Dr Goode also recommended that Mr Jackson continue with physiotherapy.
8. On 29 March 2004 a determination was issued for Mr Jackson to commence a rehabilitation program. This determination was made upon the basis of a Return To Work Plan by Ms F Brown who is an approved rehabilitation provider.
9. On 5 May 2004 Mr Jackson underwent a right shoulder arthroscopy with Dr Paul Robinson. This procedure demonstrated that the acromion was decompressed, and the overall result was said to be “very good”. After the arthroscopy procedure Mr Jackson was off work for about two months.
10. On 18 July 2004 Mr Jackson was certified as being fit for restricted duties (4 hours a day/ 3 days a week) with an increase in his working hours.
11. On 18 October 2004 a CT scan showed minor spondylotic narrowing and anterior lipping in the lower cervical region, predominantly C5/6.
12. On 21 October 2004 Mr Jackson was examined by Dr S Goode who is a specialist in occupational medicine. On that occasion Mr Jackson had stated that he was still experiencing right upper parathoracic and paracervical pain with referred symptoms to his right arm. Mr Jackson had then stated that he needed some analgesia to manage even his four hours at work and that he did not feel capable of doing any more at work. Mr Jackson also stated that physiotherapy was not proving of much benefit. Dr Goode opined that cervical disc lesion was not the cause of Mr Jackson’s ongoing referred right shoulder and right upper arm symptoms. Dr Goode then reported that the cause of Mr Jackson’s ongoing symptoms remains elusive. Dr Goode also reported that he had arranged pathology tests to exclude any underlying cause. Dr Goode also recommended that Mr Jackson continue to perform restricted duties of only four hours a day.
13. On 2 November 2004 Dr M Davis of the Mudgeeraba General Practice certified that Mr Jackson was totally incapacitated for work. Since then he has not returned to work.
14. On 9 December 2004 Dr S Goode examined a recent MRI of Mr Jackson’s cervical spine. The MRI, which was taken on 2 December 2004, demonstrated degeneration in the C3/4 and C5/6 cervical discs. There was also a moderate central disc protrusion at the C5/6 indenting the thecal sac. Dr Goode opined that the underlying pathology may be associated with the ongoing upper limb and shoulder symptoms rather than any work related contribution which had been appropriately treated by Dr Robinson.
15. On 3 May 2005 Dr E. L. Stephenson, a neurosurgeon, reported that Mr Jackson had a reduction in his cervical spine movement but that there was no evidence of any neurological deficit.
16. On 6 July 2005 Dr John Cameron, a consultant neurologist, reported that he saw Mr Jackson. Dr Cameron could find no neurological explanation for the right shoulder pain of Mr Jackson. Dr Cameron opined that it was due to an underlying degenerative right shoulder. Dr Cameron noted that Mr Jackson was developing a similar discomfort to his left side. Dr Cameron also noted that Mr Jackson had injured his left shoulder in a football injury around 1989.
17. Dr Cameron reported that if work was a major contributing factor to his right shoulder problem then there would have been significant improvement with the long periods of time that he has had off work. Dr Cameron opined that the right shoulder problem is degenerative and that it may have been exacerbated by his working activities but not caused by it.
18. Dr Cameron also reported on the early cervical degenerative changes compatible with cervical spondylosis at the C5/6 space. Dr Cameron stated that this is causing intermittent neck discomfort and impaired rotation to the right. Dr Cameron considered that it accounted for the discomfort that Mr Jackson experiences over the back of his neck and occiput.
19. Dr Cameron also investigated the neck complaint of Mr Jackson. Dr Cameron stated that the neck problem is due to ageing and is quite unrelated to his working activities. Dr Cameron also commented that it appears that the neck problem has come on since he has not been actively working since his shoulder operation.
20. Dr Cameron considered that it would be reasonable for Mr Jackson to undertake a graduated return-to-work. Dr Cameron thought that Mr Jackson should avoid any heavy lifting or working in a confined space. Dr Cameron suspected that any attempts at rehabilitation will be probably unsuccessful while he continues to complain of discomfort. Dr Cameron did not see the need for any further investigations or treatment.
Application Q2005/679
21. On 18 August 2005 a determination was made whereby as from 18 August 2005 there was no liability to pay compensation in respect of the subdeltoid bursitis right shoulder condition [T127]. The delegate in issuing that determination had regard to the report of Dr Cameron. Mr Jackson sought a review of this decision. On 25 October 2005 the Reconsiderations Delegate of the Corporation affirmed the determination of the delegate [T137]. Mr Jackson has sought a review of this decision by this Tribunal.
Application Q2006/663
22. On 29 May 2006 two determinations were issued by the delegate. The delegate made a determination which awarded Mr Jackson compensation for a 20% permanent impairment rating relating to the left knee injury [T15]. The delegate also made a determination that the available evidence indicated that Mr Jackson did not suffer an impairment in respect of the right shoulder condition [T14]. Mr Jackson sought a review of this latter determination. On 10 September 2006 the Reconsideration Officer of the Corporation affirmed this latter determination of the delegate [T18]. Mr Jackson has also sought a review of this decision by this Tribunal.
Issues For Determination
23. We have to consider whether Mr Jackson is entitled to medical payments and incapacity payments under sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 in respect of the subdeltoid bursitis right shoulder condition. We also have to consider whether Mr Jackson is entitled to receive compensation under the Act in respect of his right shoulder condition. In the interests of economy the two applications have been heard together.
Evidence of Applicant
24. Mr Jackson gave evidence before us. He outlined his employment history. Between 1983 and 1986 he was a labourer at an abattoir. He commenced employment with the Corporation in 1986 when he became a postal sorting officer at the GPO Sydney. In 1987 he was transferred to the Ashfield Delivery Centre where his duties were the sorting and delivery of mail as well as unloading mail trucks.
25. At the beginning of 1990 he left the employment of the Corporation to work as a kitchen hand. He also then moved to Queensland where he regained employment with the Corporation at the Southport Centre. In 1995 he was given supervisory duties. He now works at the Arundel Delivery Centre.
26. Mr Jackson gave evidence of the repetitive nature of his duties and how when sorting mail he had to stand before frames. He often had to lift his right arm over his shoulder height. He particularly mentioned how he would often lift objects which weighed more than 16 kgs: he did this “plenty of times”.
27. Mr Jackson stated that he attended work on 13 November 2003 and experienced a greater amount of pain. He finished his shift and went home to sleep. He awoke in the afternoon of 13 November 2003 and noticed that his right shoulder was extremely stiff and was fully tensed up with very limited movement. He immediately sought medical help from Dr Miller.
28. Mr Jackson believes that due to the ongoing problems with his right shoulder, he is now suffering what he has referred to as “secondary pain” in his neck. He has been advised by Dr Mark Robinson that this pain is due to the abnormal movements and posture that he uses as a consequence of the injury to his right shoulder.
29. Mr Jackson also discussed his previous work-related left knee injury as well as his previous football injury.
30. Mr Jackson gave evidence of how he lived on acreage and how he had difficulties with his household duties. We note that there was a lack of consistency in his evidence as to whether in fact he used a push mower. His evidence was vague. When he was asked when last he mowed the grass on his property he replied that “he could not tell”. He then later stated that “it would be more than three years” since he used a mower. He mentioned that his father and brother have a lawn mowing business and that they assist him with mowing his grass. He stated that it would have been 6 years since he dug a posthole. He also stated that it would have been 3 years since he last cut firewood: he stated that he “had a fair bit stored up”.
Medical Witnesses
31. The first medical witness was Dr Mark Robinson, a hand and upper limb surgeon. His reports were admitted in evidence: report dated 31 October 2005 [T4, exhibit 3]; report dated 8 May 2006 [T13, exhibit 4]. Dr Mark Robinson was called on behalf of Mr Jackson.
32. Dr Mark Robinson concludes that Mr Jackson probably has some degenerative changes in his cervical spine but that there is significant evidence indicating some pathology relating to his subacromial spine and supraspinatus tendon. Dr Mark Robinson also pointed to the medical literature in which it is recognised that it is difficult to separate shoulder pain from cervical pain.
33. Dr Robinson considers that little is to be achieved from a repeat acromioplasty but that an open exploration of the subacromial space and bursectomy may reduce his symptoms.
34. Dr Robinson considers that Mr Jackson has a 10% impairment of whole person function based on Table 9.1 of the Comcare Guide.
35. The next medical witness was Dr Phillip Duke, an orthopaedic surgeon who specialises in surgery of the hand, upper limb and shoulder. His reports of 16 February 2006 and 13 March 2006 were admitted in evidence [exhibit 5]. Dr Duke who was called on behalf of the Corporation stated that since 1993 he has practised as a specialist. Dr Duke in his evidence-in-chief confirmed the accuracy of his reports.
36. Dr Duke in his report dated 16 February 2006 opined that Mr Jackson did not have a right shoulder injury at the time of the examination and probably never did.
37. Dr Duke considers that Mr Jackson is suited to light or sedentary work as a result of his constitutional inability to withstand any heavier work because of his degeneration in his neck. Dr Duke considers that this is a naturally-occurring process with no relationship to his work for the Corporation. Dr Duke considered that Mr Jackson is suitable for full-time work and that he needs employment in a light or sedentary fashion.
38. Dr Duke in his report dated 16 February 2006, opined that Mr Jackson’s neck is degenerating or becoming arthritic. This, in his opinion, causes pain around Mr Jackson’s shoulder. Dr Duke considers that the pain is not coming from the shoulder.
39. Dr Duke also considered that there were certainly signs of non-organic factors and voluntary exaggeration of the symptoms when he examined Mr Jackson. Dr Duke reported: “He showed signs that indicated to me that he was attempting to make me believe he was suffering far more pain than would actually be the case”.
40. At the commencement of the second day of the hearing of this matter we were informed that Dr Goode and Dr Cameron were scheduled to give evidence before the Tribunal. Dr Cameron was to give evidence in person. Counsel for the applicant did not require their attendance for cross-examination. We consider that this was a proper course of action for Counsel to take having regard to the evidence that had already been given before the Tribunal.
Findings of Tribunal
41. We point out that “the fundamental obligation of the Tribunal is to base its decision on evidence which has such degree of probative value as is appropriate having regard to the nature of the decision”: see Ileris and Comcare (1999) 56 ALD 301 at 310.
42. In deciding this matter we have carefully reviewed the medical evidence in this application.
43. We find that the degenerative changes to the cervical spine and neck are constitutional in nature and are not work related.
44. Dr Goode opined that the underlying pathology may be associated with the ongoing upper limb and shoulder symptoms rather than any work related contribution.
45. Dr Cameron could find no neurological explanation for the right shoulder pain of Mr Jackson. Dr Cameron reported that if work was a major contributing factor to his right shoulder problem then there would have been significant improvement with the long periods of time that he has had off work. Dr Cameron considers that the right shoulder problem is degenerative and that it may have been exacerbated by his working activities but not caused by it.
46. Dr Cameron also reported on the early cervical degenerative changes compatible with cervical spondylosis at the C5/6 space. Dr Cameron stated that this is causing intermittent neck discomfort and impaired rotation to the right shoulder. Dr Cameron considered that it accounted for the discomfort that Mr Jackson experiences over the back of his neck and occiput.
47. Dr Cameron also commented that it appears that the neck problem has come on since he has not been actively working since his shoulder operation.
48. The medical notes of the Mudgeeraba General Practice were admitted into evidence [exhibit 8]. We have reviewed those medical notes. Mr Jackson attended the medical practice on numerous occasions after 13 November 2003. It was only on 17 May 2005 that any complaint of neck pain has been recorded.
49. We have placed reliance upon the report of Dr Cameron who stated that the neck problem is due to ageing and is quite unrelated to his working activities. Dr Duke in his report dated 16 February 2006 has also remarked upon the fact that Mr Jackson’s neck is degenerating or becoming arthritic.
50. We consider that the reports of Drs Goode, Cameron and Duke are comprehensive. They demonstrate a careful evaluation of the condition of Mr Jackson.
51. We do not accept the conclusion of Dr Robinson who has concluded that Mr Jackson has a 10% impairment of whole person function based on Table 9.1 of the Comcare Guide. This opinion is based upon the view that Mr Jackson has a “loss of less than ½ normal range of motion of the shoulder or elbow”. This view is in clear conflict with the weight of specialist medical opinion that there is none or a minimal loss of range of movement: see report of Dr Cameron dated 6 July 2005 [T117, folio 185]; report of Dr Goode dated 29 January 2004 [T14, folio 31]; report of Dr Duke dated 16 February 2006 [ex. 5, folio 7].
52. We also make the observation that the reports of Dr Robinson were made without the benefit of a review of all of the available reports. Dr Robinson conceded that he did not have all the reports that Dr Duke had before him. Dr Robinson also did not have the opportunity to review Mr Jackson’s cervical spine investigations.
53. We also make the observation that there is a clear body of medical evidence that Mr Jackson can return to work. He has been off work for some time exhausting his sick leave credits, his annual leave and his long service leave. We note that Dr Cameron thought that Mr Jackson should avoid any heavy lifting or working in a confined space.
Decision
54. The Tribunal affirms the decisions under review in application Q2005/679 and Q2006/663.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott and Dr M Denovan, Member
Signed: Fiona Kamst
Legal Research OfficerDate/s of Hearing 13 and 14 November 2006
Date of Decision 31 January 2007
Counsel for the Applicant Mr R Clutterbuck, of Counsel
Solicitor for the Applicant Slater and Gordon, Solicitors
Counsel for the Respondent Mr B Dube, of Counsel
Solicitor for the Respondent Sparke Helmore, Solicitors
0
0
0