Jacqueline Aguilar and Australian Postal Corporation

[2015] AATA 420

[2015] AATA 420 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/2009 and 2014/2289
Re	Jacqueline Aguilar
APPLICANT
And	Australian Postal Corporation
RESPONDENT

DECISION

Tribunal	John Handley, Senior Member
Date	15 June 2015
Place	Melbourne

1.       The decision of the respondent of 21 February 2014 is set aside and in substitution it is decided that:

a.       the applicant suffered the injury of mild subacromial bursal thickening with bursal bunching at the coraco-acromial ligament; and

b. the applicant has continued to suffer the effects of the injury from 3 February 2014 from which date the respondent has been liable to pay compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

2.   The decision of the respondent of 6 March 2014 in respect of the applicant’s neck injury is affirmed.

3.   The applicant is entitled to have her legal costs and disbursements paid by the respondent pursuant to paragraph 6.10 of version 2.0 of the Guide to the Workers Compensation Jurisdiction published by the Tribunal in September 2013.

....[sgd]....................................................................

John Handley, Senior Member

WORKERS’ COMPENSATION – applicant employed with respondent for 16 years – work has been repetitive and heavy, frequently undertaken quickly and involving pushing and pulling movements – persisting complaint of left shoulder and upper back pain – some complaint of neck pain – decision concerning the left shoulder injury is set aside – decision concerning the neck injury is affirmed.

Legislation

Safety, Rehabilitation and Compensation Act 1988 sections 5A, 5B, 14, 16 and 19

Secondary Materials

Guide to the Workers Compensation Jurisdiction (Version 2.0, September 2013)

REASONS FOR DECISION

John Handley, Senior Member

15 June 2015

1. Mrs Aguilar, the applicant in this review has been employed by Australia Post, the respondent, for 16 years as a mail officer. She contends that she suffered injuries to her left shoulder and neck arising out of her employment. The respondent has made two decisions affecting its liability. This review is a challenge to those decisions.

2. The first reviewable decision was made on 21 February 2014 (T58, pages 191-193) which affirmed a determination previously made where it was decided that the respondent had no present liability to pay compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) in respect of a claim for left subacromial bursitis (the left shoulder injury).

3. The second reviewable decision was made on 6 March 2014 (T16, pages 196-199) which affirmed a determination denying liability pursuant to s 14 of the Act in relation to cervical spine dysfunction with C3-C4 disc mildly protruding and C5-C6 disc prolapse and osteophyte complex foraminal stenosis on the right side (the neck injury).

4. The applicant claimed compensation from the respondent on 18 July 2011, 25 May 2012 and 30 August 2012. She remains employed and is currently working on a full-time basis.

5. Throughout her employment, the applicant was engaged in many different tasks, which she contends were frequently heavy and exertive. In most of them, she was required to lift and work repetitively and at speed. Work was sometimes performed above shoulder height. The applicant is 152 centimetres tall.

6. The applicant commenced her employment at the Melbourne City Mail Centre (MCMC) in 1999 and remained there until 2003 when it closed. In her statement, received as Exhibit A1, the applicant recorded that she lifted heavy mailbags at that facility in the course of unloading mail vans, between 30 and 60 minutes per day, and emptied them onto a conveyor belt, after lifting them above shoulder height. The bags were intended not to exceed 16 kilograms but in the applicant's experience, there were occasions when they exceeded that weight. When the MCMC closed, the respondent opened the Dandenong Letters Centre (DLC). The applicant has thereafter been employed at that facility.

   The Dandenong Letters Centre

7. The emphasis in this review was on the work undertaken by the applicant at the DLC. Each task was undertaken, usually in two hour rotations, on a particular machine or location, within that facility, being the:

   ·bull ring

   ·flat mail optical character recognition (FMOCR)

   ·taxing area

   ·bar code sorter (BCS)

   ·multiline optical character recognition (MLOCR)

   ·large letter indexer (spectrum)

8. The bull ring is an area where tubs of mail, on average being about 10 kilograms in weight, are delivered in a ULD (unit lifting device) being a steel mesh cage, with  removable doors and measuring approximately one meter in height, width and depth. Each ULD contains up to 42 tubs containing large (A4) and small (C5) letters and small parcels of varying thickness. The tubs are stacked on top of each other and are labelled for ultimate delivery to a regional mail centre (for example, Seymour, Geelong or Ballarat).

9. The applicant was required to remove each tub from a ULD and transfer it to a destination area within the bull ring. Tubs would be removed by reaching in, lifting and withdrawing them and then being placed on a small trolley which is then pushed and delivered to another area where they are then loaded into another ULD labelled by its destination.

10. When half of the tubs have been removed, the doors of the ULD are removed and it is elevated with a pallet lifter to avoid bending when removing the remaining tubs.

11. Work in the bull ring is usually undertaken for about two hours. On occasions where two rotations, each of two hours are worked, there is an intervening 15 minute break.

12. Work on the FMOCR involves four tasks, each 30 minutes of duration, within a two-hour period. A number of numbered photographs, appended to a statement from Damian McShane (Exhibit R1) depict some parts of and areas around the FMOCR and will be referred to in the description of the work undertaken by the applicant.

13. Large letters are delivered to the FMOCR in tubs which are transported on a conveyor line which extends from an overhead tower (Exhibit R1, page 16). The applicant said the tower frequently breaks down and when that occurs, mail in tubs is delivered in ULDs which are placed adjacent to where the operator is working.

14. Mail is taken from the tubs – either from the conveyor or a ULD – using both hands and stood on its edge (Exhibit R1, page 15). It was estimated that each tub would be emptied by removing three handfuls of mail. The mail is placed between a left and right paddle. Mail is pushed with an operator’s left hand using the left paddle towards the right paddle where it is compressed. The right paddle, which is a large steel plate with a black handle at its bottom (Exhibit R1, pages 15-16), is raised and mail is then pushed further to the right where it is then taken to another part of the machine which reads the postcode of each envelope.

15. Page 16 at Exhibit R1 shows the front of the FMOCR. It depicts the tubs delivering mail from a conveyor and a ULD located behind where the operator would be working. The table on which the mail is placed after being removed from the tubs shows it to have an upward incline.

16. The applicant said work on this part of machine is undertaken very quickly and repetitively. Approximately 17,500 mail articles are processed every hour and the right-hand paddle, which was estimated to weigh one kilogram, is lifted between 80 and 100 times every 30 minutes.

17. The applicant said there were occasions when a supervisor (known as a process leader – a PL) would also work adjacent to the operator on this part of the machine. The operator would remove handfuls of mail from the tubs and the PL would push it using the left paddle. When a PL was present, work was undertaken at a faster rate.

18. Another task on the FMOCR is collecting tubs of mail from the back of it after the mail has been processed through the optical reader (Exhibit R1, page 18).

19. The tubs emerge onto a conveyor which is about waist height. The tubs are lifted from the conveyor and carried, whilst walking, to a ULD labelled by the destination of the intended mail. The ULD is filled in rows of six tubs, being two rows deep and three rows wide. A ULD is filled by throwing 12 to 15 tubs against its back wall. When the top of the ULD has been reached by the tubs stacked on top of each other, the front half of the ULD is then filled manually bending and placing them in position. The applicant estimated that between two or three ULDs are filled every 30 minutes. Two employees perform this function which requires constant lifting and walking when carrying the tubs in addition to throwing them.

20. Mail which has been rejected by the optical reader emerges onto the conveyor in tubs which are placed on trolleys known as kingfishers (Exhibit R1, page 28) which carry nine tubs. The kingfisher is then pushed around to the front of the FMOCR over a distance of two or three meters where the tub is again emptied and the mail is again pushed towards the optical reader.

21. The third task associated with the FMOCR involves sorting of rejected mail. The applicant described this task as easy because it involved working whilst standing and taking rejected mail from tubs and placing them into destination racks, known as a rocket launcher. Little attention was given to this task during the hearing, perhaps because the applicant described it as easy. At page 8 of Exhibit R1 is a (poor quality) photograph of the task involved when working at the FMOCR Handsort/Rocket Launcher. The printed description of the task is recorded as [t]he Mail Officer is required to remove large letters from white tubs on a kingfisher and placing them onto corresponding tubs on the Rocket Launchers.

22. The remaining task on the FMOCR involves fitting empty white tubs into a chute (Exhibit R1, page 23). The empty tubs are delivered in a ULD and are stacked inside each other to about waist height. A stack of tubs is lifted out of the ULD and carried to the opening of the chute. They are fed into the chute opening which is about 18 inches above floor height. Some bending is required to access it and as the stack of tubs diminishes in height, more bending is required. The applicant estimated that between 100 and 200 empty tubs are fed into the chute every 30 minutes. On occasions, the tubs are stuck and some force is required to free them by using both hands and when bent forward.

23. The applicant has not worked on the FMOCR since August 2011 when she was first injured.

24. The taxing area is a place within the DLC designated to sort trays of mail which has been returned, or which is to be redirected to another address or has been damaged (and which is repaired either by wrapping or sealing). This task is undertaken in a seated or standing position. The applicant would be required to collect trays of this mail from another location, load them onto a kingfisher and push it to her workstation. The letters are sorted into appropriate trays, are loaded back onto a kingfisher and pushed away to another area. The applicant said work in the taxing area caused significant discomfort to her neck because most of the work, whether seated or standing, was undertaken with her head and neck bent forward. She said it was easier to undertake this work whilst seated, because standing would have caused a greater degree of forward tilt in her neck and more likely precipitate increased pain.

25. The bar code sorter (BCS) reads the postcode of standard size letters and designates them to appropriate trays. It performs a similar function to the FMOCR. The work on the BCS involves three distinct processes being feeding mail, taking it off and removing filled trays (Exhibit R1, page 4). There are a number of bar code sorting machines which divide processing of country and suburban mail. Four persons are assigned to the BCS designated for country mail and three persons designated to the BCS for city mail. The processes involved in bar code sorting are rotated in two-hour shifts amongst the persons assigned to each BCS machine.

26. Standard letters are delivered to the BCS in cardboard trays which are lifted using both hands and placed on a table and pushed from left to right with a left paddle to a destination where the envelopes pass through a bar code reader. The applicant estimated that approximately 50 trays of standard size mail would be processed in a 30 minute period.

27. When the mail is passed through the bar code reader it is deposited into chutes (known as stackers) which designate the destination of each letter. As the stackers are being filled, the applicant would take a bundle of mail in her right hand and place it into a designation tray located immediately opposite the row of stackers. There are four rows of trays, the lowest being slightly below waist height and the highest being above her shoulder height. The applicant would slide a tray towards her with her left hand and place the mail being held in a right hand into it. The applicant estimated that she would pull out a tray and deposit mail on approximately 100 occasions in a 30 minute period.

28. When the trays are filled, another person working behind the row of trays (a runner) would remove them and place them on a conveyor belt located approximately one meter away and replace with an empty tray.

29. The applicant said the BCS processes 28,000 letters per hour and the work is conducted at a very fast pace.

30. The multi line optical character recognition (MLOCR) machine reads the addresses of standard size letters and prints a bar code on them. It operates in a similar manner to the BCS.

31. Trays of mail weighing between six and eight kilograms are lifted from a conveyor and carried to the machine where the letters are removed by hand and stacked and pushed from left to right to the location where the bar code is printed. The letters pass through that device and are deposited into trays. An operator would then perform a take off role by removing handfuls of mail and placing them into destination trays.

32. The MLOCR has rows of stackers where the destination trays are housed. Unlike the BCS, the trays lie flat. When the trays are filled, they are removed, placed on a conveyor and an empty tray is replaced.

33. The large letter indexer (the spectrum) is a process made up of three procedures.

34. The first involves an operator working at a desk to which two conveyor lines are adjacent. Individual letters are conveyed to the operator on one line which are taken off individually and a postcode is typed into a computer. The letter is then placed on the other conveyor where it is taken away. The work is undertaken in a seated position. The applicant said that if the conveyor belts are jammed, she would extend her left arm to the top of a machine where its steel lid, which the applicant estimated weighed about one kilogram, is raised to a height of about 12 inches and then lowered to reactivate the conveyor. The applicant said the belts frequently jam and she estimated having to lift the lid on three or four occasions every 30 minutes. The operator’s workstation and the top of the lid (blue colour) are depicted in the bottom photo of page 10 of Exhibit R1.

35. The second procedure, known as putting out, requires an operator to take a tub of large letters from a conveyor and carry or push it on a trolley to an adjacent table where the mail is removed by hand and placed onto a conveyor belt. The applicant said if the conveyor belt delivering the tubs is operating quickly, they are carried to the table, which is faster than using a trolley. The applicant estimated that she would be working on about 100 tubs every 30 minutes.

36. The third function involves taking off tubs of sorted mail from a rack and placing it onto an adjacent conveyor. The mail has to be positioned face up within the tub which required the applicant to have her neck tilted forward looking into the tubs.

    Incident Forms and Compensation Claims

37. The applicant reported incidents in the workplace which caused her pain and injury. On many occasions, the respondent accepted liability for treatment and incapacity which followed.

38. On 8 July 2011 the applicant completed an incident form. She had been working on the FMOCR and the BCS, on day shift. She recalled staff numbers on these processes were depleted because many employees, who were working mothers, were absent during school holidays. In order to keep up with the work, the applicant recalled that she was working faster than would normally be required.

39. In her incident form (T6, pages 24-31) the applicant recorded she experienced bilateral shoulder and neck pain over about one week whilst working on the FMOCR which she attributed to heavy mail volumes & minimal staffing levels. She recorded that her pain was manageable but became worse on the 5^th day which was the (7th July). She also recorded that her pain was felt more while feeding FMOCR.

40. An incident investigation form completed by an officer of the respondent (T7, page 34) recorded the applicant had reported pain in both shoulders and her neck due to working the whole week on FMOCR with less staff and large letter tubs being very heavy. This is also due to lack of proper rotation.

41. A claim for compensation was submitted on 18 July 2011 (T9, pages 46-48). The injury claimed was neck strain and bilateral shoulder strain. The respondent accepted liability pursuant to section 14 of the Act (T10, page 49). The applicant did not take time off work. She was referred to Dr Julien, a facility doctor and worked on restricted duties for about three months. At the expiration of that period she returned to full duties. She took Voltaren and Panadeine Forte for relief of pain. Certificates completed by Dr Julien found at pages 199-201 (T61) record a number of restrictions upon the applicant’s work. He certified her as fit to return to normal duties on 26 September 2011.

42. The applicant said that Dr Julien told her that she had suffered a strain, but she requested that he refer her for an MRI of her neck, because she was then experiencing severe pain. The MRI was reported on 26 August 2011 (T25, page 108) as demonstrating mild protrusion of the C3/4 disc, the C5/6 disc was extruded with a right para-central disc osteophyte complex, with an acquired foraminal stenosis, which may account for a right C6 radiculopathy. Left-sided radicular displacement was not shown.

43. The next incident form was lodged on 25 May 2012 (T11, pages 50-55) recording pain which commenced on 8 May 2012 in the applicant’s left shoulder and upper back. During the hearing, she demonstrated the upper back pain was located behind her left shoulder and over her shoulder blade. She recorded the pain was associated with her work operating and feeding the BCS.

44. The applicant appended a short statement to the incident form (page 54), as follows:

    For the past two weeks I have been having left shoulder (upper back) pain. I did not want to report it as I was hoping it would get better with some medication and extra rest. On the 24/5 Thursday the pain became more severe so I reported it to my local doctor. For the past two weeks I have been pushing a kingfisher from the bulk to the weighing scales in the front of the MMF area. I also operate the FMOCR 1 hour and bCS (sic) for 2 hours then work on spectrum taking mail tubs from belt to the operating stations. As I have had a previous injury I assume I have aggravated it again.

45. An officer of the respondent completed a Root Cause Analysis – Gathering Facts report (T13, pages 67-72) on 25 May 2012. At page 68 he recorded Re-enactment showed slight height difference between top stacker and shoulder. Uses wide ‘C’ grip.

46. The applicant attended her general practitioner, Dr Muzaffar on 24 May 2012. The clinical entry (T16, page 78) of the consultation records left shoulder/upper back pain. On 24 May 2012 the history recorded is works at Australia Post, has to lift heavy packets at times. c/o left shoulder and upper back pain. O/e -- shoulder ROM_full. no AC tenderness. tender over upper back muscles. muscle pain. for light duties, thoracic spine exercise. On 25 June 2012 a compensation claims officer sought clarification from Dr Muzaffar (T18, page 82) of the diagnosis, which, in her reply, was recorded as muscle strain of left sided upper back muscles overlying left shoulder & scapular region – Trapezius & levetor scapular muscles.

1. The applicant said at that time she had pain in her neck. She acknowledged that neck symptoms were not recorded but said she was then stressed and was under pressure. She said she did report neck pain to Dr Muzaffar who she consulted on 24 May 2012. The applicant said she had one day off work and then took the annual leave one week later. She said her neck and shoulder pain improved.

2. On 9 July 2012 the respondent accepted liability pursuant to section 14 of the Act for the claim made on 25 May 2012 (T20, page 85).

3. The next claim made by the applicant followed an incident which occurred on 16 August 2012 and reported the day after (T21, page 86-93). In the incident form the applicant recorded she had pain in her left shoulder/neck area after working on BCS2 (number two bar code sorter) following normal rotation of machine afterwards I felt pain in my left shoulder/neck area. I feel I have re-aggravated my existing injury. She recorded the injury as pain in the left shoulder & neck area, twice, at page 90.

4. On 17 August 2012, Dr Muzaffar issued a certificate (T61, page 212) to the applicant imposing restrictions on her work (until 31 August 2012) of a maximum of six hours per day over five days per week without lifting above three kilograms. An officer of the respondent, on the same day, completed a list of the restrictions which would be imposed upon the applicant during work (T22, page 95). It is not known whether that officer had been given a copy of the certificate completed by Dr Muzaffar on the same day. The work intended to be undertaken by the applicant was not to expose her to lifting above three kilograms, working above shoulder height or having to work forcefully pushing or pulling. Additionally, she was not to be placed on the BCS.

5. On 30 August 2012 the applicant completed a claim form seeking compensation. The injury claimed was left shoulder pain. In her evidence, the applicant said she did not claim that she had injured her neck because of the severity of the pain in her left shoulder. She said she had reported the neck pain to her doctor.

6. On 12 September 2012, Dr Muzaffar arranged for the applicant to undergo an x-ray and ultrasound of her left shoulder. A report from the radiologist is found at page 124 (T31). The report is in the following terms:

   LEFT SHOULDER X-RAY

   Normal bony alignment. No bone or joint abnormality seen. No abnormal soft tissue calcification.

   LEFT SHOULDER ULTRASOUND

   The rotator cuff tendons, joint space and regional soft tissues were examined.

   Slight thickening of the subacromial bursa is present but no significant impingement is seen. No evidence of rotator cuff tear or additional abnormality seen.

   Conclusion:

   Minor bursal thickening but no impingement or tear.

7. The applicant did not record neck pain or injury when she completed the compensation claim form on 30 August 2012. She said she did report the neck pain to Dr Muzaffar. She remembered later that she had not recorded neck pain in her claim form and approached rehabilitation personnel at the mail centre and told them that she also suffered neck pain. She said she spoke with either Marie Fernandez or Eva Pragier and was told that she need not be concerned because it’s all taken care of. On reflection the applicant said she was not sure whether that conversation occurred after her claim in May or in August.

8. The applicant did not have any time away from work following the episode on 16 August 2012.

9. The respondent accepted liability on 14 November 2012 (T33, page 128) in respect of left subacromial bursitis and decided the date of injury was 16 August 2012. The applicant said she read that decision and was aware that it was confined to a shoulder injury. She did not challenge that decision, notwithstanding the absence of any reference to her neck pain. The applicant agreed she was familiar with the process of challenging decisions.

10. The respondent contended that the injury overwhelming the applicant was her left shoulder. Dr Muzaffar completed a certificate on 30 August 2012 and recorded a diagnosis of [l]eft shoulder pain radiating to neck (T61, page 210).

11. Additionally, the respondent contended that there was no complaint of neck pain or injury by the applicant after 16 August 2012 until 7 June 2013. Certificates issued by Dr Muzaffar before 7 June 2013 recorded the injury as left shoulder pain radiating to neck and the diagnosis was recorded as left subacromial bursitis. Dr Muzaffar issued a certificate on 7 June 2013 recording the injury as left shoulder pain and neck pain. In addition to recording a diagnosis of left sub acromial bursitis, there is also a recording of cervical spine dysfunction with C5 – C6 disc prolapse and osteopthyte (sic) complex causing formianl (sic) stenosis on the right side confirmed on MRI 26/08/2011. Additionally, the certificate recorded that the applicant has a history of cervical spinal dysfunction in 2011, which is contributing to her current work capacity now. Certificates issued after 7 June 2013 had identical content.

12. It would appear that the respondent was aware that the applicant did have complaints of neck pain after 16 August 2012 (and before 7 June 2013) and was aware of a neck injury because it arranged for the applicant to be assessed by an occupational physiotherapist at the Dandenong Spinal Management Clinic on 9 May 2013 (T36, pages 134-142). The report records that the applicant described her symptoms as intermittent dull ache of the left cervical spine and left posterior shoulder with pain occasionally radiating into the lateral left arm. A baseline score of 32 per cent was recorded against a Neck Disability Index (this was not explained within the report) which was interpreted by the physiotherapist as moderate level of pain and activity limitation due to neck problems.

13. Subsequent to 16 August 2012 the applicant said she always has pain present in her left shoulder. Most times it is mild however on occasions it becomes severe by work undertaken quickly and work which is also repetitive and heavy. The applicant said it is impossible to undertake any work with the respondent without use of her left arm.

14. The applicant said she has neck pain and discomfort – described as a heavy and aching sensation – on most days at the back of her neck and sometimes extending to its right side.

15. There are occasions when the applicant does not have neck pain. A report (T51, page 170) from Mr Drnda, a neurosurgeon to whom the applicant was referred by Dr Muzaffar recorded at examination on 25 November 2013 that the applicant, on examination, did not have any neurological deficit and movement in all limbs, including neck was normal. On 14 November 2013, about one and a half weeks before the appointment with Mr Drnda, the applicant was examined by Dr David Barton, an occupational physician at the request of the respondent. He reported (T45, pages 156-160) that the applicant says that she has had no particular neck pain for the past three months. The applicant said that she felt under pressure during the consultation and it was not true that she had been without pain in her neck for the past three months.

16. The applicant is reluctant to take analgesia but takes Panadol and Neurofen medication when the pain in the neck and shoulder become severe. On occasion she takes Panadeine Forte. The usual method of relieving pain is to frequently apply heat packs and gels.

17. At home the applicant said that she does not hang clothes on the washing line because of discomfort and pain when raising her arms above shoulder height. She vacuums part of the house which has timber floorboards. Her husband vacuums the carpets.

18. Since October 2014 the applicant has worked on a full-time basis between 6 am and 2:30 pm daily. Her work has involved rotation between the BCS for one hour, hand sorting for one hour and the spectrum for two hours. She had not had physiotherapy for six months prior to the date of hearing and last took analgesia two weeks previously.

    Dr Naheed Muzaffar

19. Dr Muzaffar, the applicant’s treating general practitioner, gave evidence and was assisted by referring to her clinical notes received as Exhibit A3. The applicant first consulted with her in relation to her work injuries on 24 May 2012.

20. On that day, the notes record the applicant presented with a history and complaint of left shoulder and upper back pain. On examination, she found the applicant to have a full range of shoulder movement and without tenderness over the acromioclavicular joint. She was tender over her upper back muscles and she certified the applicant as fit for light duties. In evidence, Dr Muzaffar said the applicant’s upper back was an area below her left shoulder and the left side of her neck.

21. The clinical notes record there were a number of consultations subsequent to 24 May 2012. On 17 August 2012, there is a recording of the applicant presenting with left shoulder pain after going back to normal duties but also there is the first recording specifically in relation to the applicant’s neck, being midline cervical tenderness-c2-C3 denies any MVA, any injuries. Dr Muzaffar said she recalled having a conversation with the applicant during the consultation about her shoulder and neck pain. She said it was difficult to determine whether they were two distinct injuries or related by the connecting musculature. She recommended to the applicant, who agreed, that they should concentrate on treating the shoulder and consider the complaints of neck pain after radiology reports were received from x-rays and an ultrasound that she arranged for the applicant to undertake on 12 September 2012 (refer paragraph 52 above). Dr Muzaffar issued a certificate on 17 August 2012 restricting work to a maximum of six hours per day without lifting above three kilograms.

22. On 30 August 2012, Dr Muzaffar was given a copy by the applicant of the MRI report, of the cervical spine of 26 August 2011 (T25, page 108). The clinical file records right sided radiculopathy.

23. The applicant continued to consult Dr Muzaffar with varying complaints of shoulder pain, associated with her work. The clinical notes also record various treatment options, including cortisone injections, which the applicant rejected and preferred to continue having physiotherapy which commenced in January 2013.

24. It was on 7 June 2013 that Dr Muzaffar first recorded cervical injury as a reason for restricted work duties in certificates that she was issuing. The notes record that the applicant had been assessed by spinal clinic – also neck pain contributing. Dr Muzaffar was influenced by the report dated 9 May 2013 of the occupational physiotherapist at the Dandenong Spinal Management Clinic (refer earlier). Subsequent consultations record the continuing presence of left shoulder pain, especially when undertaking overhead work (2 and 16 August 2013) and the presence of neck pain and pain radiating into the left arm (22 and 29 August 2013). The notes also record there were discussions about the work being undertaken, with specific reference on 29 August 2013 to ceasing work on the BCS.

25. It would appear that Dr Muzaffar had become satisfied that the left shoulder and the neck conditions were contributing to the applicant’s pain and restrictions at work because she referred the applicant to Mr Drnda, the neurosurgeon, and issued a certificate on 12 September 2013 recording that the applicant’s neck pain had become worse, she was unable to work on the BCS temporarily, her cervical spinal dysfunction is a permanent condition and she will have flare up of her symptoms at times (T61, page 246 – similar comments were also made in certificates issued on 29 August (page 241), 7 October (page 252) and 4 November 2013 (page 259)). She again discussed treatment by cortisone injection on 7 October 2013 and issued two certificates on that day (T61, pages 249 and 252), one of which recorded that the applicant needed a repeat ultrasound of her left shoulder to determine whether the bursitis was ongoing or whether her shoulder pain had its origin in cervical dysfunction (page 249). Dr Muzaffar said that she had become satisfied that the applicant’s neck injury was contributing to incapacity and restricted her work duties.

26. The applicant was examined by Dr David Barton, an occupational physician on 14 November 2013. His report is found at pages 156-160 (T45). He also had a discussion with Dr Muzaffar on 26 November 2013 and reported (page 163), to the respondent, that:

    The General Practitioner felt that the worker would not be able to return to all duties at the Dandenong Letter Centre. The GP said that even though there was a poor correlation between the scans and symptoms, it was considered that they showed some abnormality. The GP also made the comment that the worker is “better on annual leave”.

    While I appreciate the comments made by the General Practitioner I do not believe that they provide substantial medical reasons as to why the worker cannot return to normal work.

27. Dr Muzaffar confirmed that she did have a discussion with Dr Barton, and told him that she disagreed with his opinion that the applicant was fit to undertake normal duties subject to job rotation, limits on weights being lifted and regular breaks during the day. She said she provided him with a copy of the report of Mr Drnda (T51, page 170).

28. On 10 December 2013, Ms Pragier, a rehabilitation case manager employed by the respondent wrote to Dr Muzaffar (Exhibit A2) asking for her agreement to assess and trial the applicant working on the FMOCR in 30 minute shifts. The letter describes the work that she would be undertaking on that machine. Dr Muzaffar did not agree to that proposal. In her response to the proposed trial, Dr Muzaffar recorded on 19 December 2013 patient is already experiencing worsening pain due to increased workload. Not ready for FMOCR at this stage. That response is consistent with a clinical entry made in the clinical notes. A certificate issued on the same day records restrictions of can lift upto 10 kgs with both arms, Barcoding for 1 hour period with 20 minute rotations upto 2 hours period per shift, NO FEEDING ON FMOCR (T61, page 266).

29. On 2 March 2014 there is a clinical entry of neck pain now on the right and left side and also left shoulder, radiating down upper arm. Three weeks later on 24 March 2014 there is an entry of neck pain settled, but still having shoulder pain. Says cannot work at the FOMCR (sic) at all, causes pain to flare up.

30. In concluding her evidence–in-chief, Dr Muzaffar said that the applicant had been employed by the respondent for 16 years where she had frequently been required to lift up to 10 kilograms and undertake work, often at a fast pace involving the use of her arms and shoulders repetitively and overhead and also frequently involving neck flexion. She said that type of work can predispose changes in the shoulders and spine which has been demonstrated in the applicant. She said repeated lifting of arms above 90 degrees causes the bursa to become squeezed and inflamed which precipitates pain.

31. It was her opinion that the applicant was not fit to return to unrestricted duties. If she did, she expected the applicant will suffer pain and incapacity. She regarded the applicant as having a permanent cervical injury. She thought the applicant’s shoulder symptoms may subside if she was not undertaking work which was provocative of increasing symptoms. She thought the applicant will continue to need treatment into the future by physiotherapy and simple analgesia.

32. In cross-examination, Dr Muzaffar confirmed that at 7 June 2013 she had become satisfied the applicant did have pain originating from her neck which was distinct from pain the applicant experienced in her left shoulder. She was reassured by the opinion of the clinical physiotherapist in his report received from the Dandenong Spinal Management Clinic.

33. The applicant acknowledged that the MRI of the cervical spine on 26 August 2011 recording right C6 radiculopathy without left C6 radicular displacement suggested that symptoms would be experienced on the applicant’s right side. However she was not prepared to exclude that the neck could be responsible for left-sided symptoms as she recorded in the clinical notes of 29 August 2013. When re-examined, Dr Muzaffar said it was impossible to determine whether there had been any progression of degenerative disease in the absence of an MRI of the cervical spine subsequent to September 2011.

34. She was also satisfied that the report of an ultrasound of the applicant’s left shoulder on 7 October 2013 (Exhibit A3, pages 22-23) finding a mild subacromial bursitis would be likely to precipitate pain on movement. She was satisfied that the applicant’s work predisposed to symptoms of pain.

35. Dr Muzaffar acknowledged that Dr Barton and Mr Haig, a consultant orthopaedic surgeon who examined the applicant at the request of the respondent, on 14 November 2013 and 31 July 2014 respectively, both found the applicant had a full range of movement on examination. However it was her opinion that the range of movement demonstrated might have precipitated pain. She also noted a clinical note made on 4 November 2013 that the applicant was then pain free when she saw the doctor because she was not then working on the BCS. She disagreed with opinions of Dr Barton and Mr Haig that the left shoulder injury had resolved. She said the applicant’s left shoulder settles when she does not undertake work which provokes pain.

    Mr Damian McShane

36. Mr McShane is a Production Support Manager at the DLC. He completed a statement (Exhibit R1) on 10 April 2015 to which a number of photographs were appended.

37. The statement describes the function and operational procedure of the FMOCR. In evidence he said it is a full on, fast machine and the work on it is constant and repetitive. The FMOCR processes 20,000 large letters per hour which he acknowledged were awkward to lift from tubs. Consistent with the evidence of the applicant, he said the towers delivering the tubs of mail frequently breakdown and it was common to lift the tubs from ULDs. He agreed in July 2011 the respondent was short staffed on the FMOCR because some employees were absent during school holidays.

38. Mr McShane acknowledged that tubs are thrown into the ULDs, more often than not, during take-off but it is not a practice that is recommended. He said staff take shortcuts and he would prefer that the gates of the ULDs should be taken out and employees walk into it and deposit the tubs.

39. He said work in the taxing area is undertaken whilst seated and when looking down. He agreed that a person’s neck would then be in a forward position. He said if there was discomfort, persons could undertake the work whilst standing. He said a tray could be placed upside down on the workbench to permit work to be undertaken at a higher level to reduce the degree of forward flexion. He also said a person could re-wrap from a kingfisher but did not know whether that advice had ever been given. He said chairs were adjustable but agreed that if they were lowered so that the article being re-wrapped was at face level it would require the employee to work with their arms elevated.

40. When working on the stacker adjacent to the BCS, he agreed that persons of short stature would have to raise their arms above shoulder height to reach the top level of trays but that could be avoided by standing on a gravity stool which is made available and which locks to the floor when a person is on it. He said only one stool was available at the BCS in the area with two or three people feeding the racks, that is, taking mail from the stackers and placing into the designated trays.

41. In cross-examination, Mr McShane was asked to explain why he recorded in his statement at paragraph 13 that he appended a copy of a first aid entry made on 7 July 2011 recording the applicant’s presentation with a broken fingernail and no reference to any neck or shoulder pain. The questions implied that Mr McShane had ignored the symptoms experienced by the applicant in the week prior to 7 July. In fairness, a close examination of the relevant T-documents indicates that the applicant’s symptoms were not reported by her until 8 July when she completed an incident form. Her claim for compensation (T9, page 46) confirms that she reported her symptoms on that day. It does remain unanswered why the attendance at the first aid office on 7 July was recorded at all in the statement. It has no relevance to this review.

1. Nonetheless, Mr McShane did acknowledge that the T-documents (pages 24-45) indicate the applicant had been working on the FMOCR. He also acknowledged that the applicant had been lifting heavy mail tubs which had split during the preceding week and a report completed by officers of the respondent, having spoken with other staff, recorded the applicant’s shoulder and neck pain was due to working on the FMOCR during a period of reduced staff, lifting large letter tubs which were very heavy and there had been a lack of proper rotation (T7, page 34).

2. Mr McShane said that the kingfishers are easy to push although he acknowledged that there were occasions when the wheels become clogged. He said they were of varying sizes and weight and the recommended loads were 20 trays of standard size mail or nine tubs of large letters. Appended to his statement are photographs of kingfishers (Exhibit R1, pages 27-28) which weigh 42 and 50 kilograms respectively when empty. He agreed that nine large letter mail tubs stacked on the kingfisher weighing 42 kilograms would require the employee to push 132 kilograms, which he said was easy. He acknowledged that manoeuvring a loaded kingfisher would depend on the weight of it, whether the employee had their arms extended, their strength and the wheels being unimpeded.

   Mr Michael Khan

3. Mr Khan is an orthopaedic surgeon who examined the applicant at the request of her solicitors on 6 October 2014. His report of 26 November 2014 was received as Exhibit A4.

4. In his report he concluded the applicant had mild degenerative changes in her cervical spine with discogenic pain at the C5/6 level with right-sided C6 radiculopathy. He was satisfied the applicant had pre-existing asymptomatic mild cervical disc degeneration and chronic soft tissue injury in her cervical spine and left shoulder as a consequence of intermittent heavy strenuous work with the respondent. He was satisfied she was fit for suitable duties which avoided excessive heavy and repetitive lifting, pulling, pushing and work above shoulder level. He said she continued to suffer residual symptoms and the effects of them have not ceased to exist.

5. In evidence he said the applicant had suffered left subacromial bursitis and bunching of the coraco-acromial ligament. He said the bursa was thickened and the ability of tendons within the left shoulder to glide was impaired. He was satisfied that repetitive movements of the applicant’s arm, especially pulling and lifting above shoulder height would be responsible for this condition. Pushing mail with her left arm from left to right, up an incline (on the FMOCR), would cause left shoulder and arm symptoms. He did not dismiss the possibility of left radicular symptoms emerging from her neck because the MRI demonstrated the presence of a right paracentral disc osteophyte complex. He said if the applicant’s symptoms were entirely right-sided he would agree that the MRI findings would support a conclusion of right-sided radiculopathy. It was his opinion however that the cause of the applicant’s pain has two originating sites being her neck and her left shoulder.

6. Mr Khan was satisfied the applicant will not ever be fit to work on unrestricted duties. He acknowledged the applicant has improved due to the restrictions under which she has worked. However, he regarded her cervical and left shoulder soft tissue injuries to have emerged from her repetitive work and have become chronic.

7. He said any return to repetitive lifting and carrying of tubs of mail especially will cause her shoulder and neck symptoms to flare up. He thought the applicant could cope with sitting at a desk and repairing mail, subject to adequate rest periods. He cautioned against throwing mail tubs into a ULD, because as the stack became higher it will precipitate greater strain on the left shoulder and neck, when throwing.

8. Mr Khan said if the applicant’s neck had been pain free and without other symptoms for three months, he was confident that any aggravating effect by the employment would resolve. However, with respect to the left shoulder, he was not confident that the aggravating effects of employment would resolve if there was an absence of pain and other symptoms for three months, because she has a thickened bursa and her soft tissue injuries have caused chronic soft tissue damage.

   Mr Ronald Haig

9. Mr Haig is a consultant orthopaedic surgeon who assessed the applicant at the request of the respondent on 31 July 2014. His report of 13 August 2014 was received as Exhibit R6.

10. He obtained a history of the applicant having symptoms of back and neck pain in 2011 for a period of three or four months. Thereafter, she worked without symptoms until 2012 when they emerged by gradual onset and improved after a few months. Subsequently there has been a pattern of recurrences of pain of gradual onset which eventually settled. At the date of consultation, the applicant explained that she has constant pain at the top of the left shoulder and her upper left arm. She frequently had headaches and the back of her neck felt heavy. On examination, Mr Haig found the applicant to have normal posture without tenderness and full range of motion of her head and neck. There was altered sensation of her upper left arm and shoulder with a non-anatomic distribution together with normal power and reflexes. Rotation was undertaken without pain.

11. Mr Haig reported that it was his opinion the applicant’s symptoms in her neck and shoulder were soft tissue in origin. He regarded the MRI findings of the cervical spine to be incidental (in the absence of right-sided symptoms) and was not satisfied that there was any clinical evidence of bursitis in the left shoulder. Although he acknowledged that the applicant continued to suffer recurrent episodes of symptomology, which the applicant said anything small can trigger this, he concluded there is no clear-cut relationship to her work. He was satisfied the applicant was capable of undertaking full-time work in alternative duties.

12. In evidence, Mr Haig said the altered sensation of the applicant’s upper left limb which he reported had a non-anatomic distribution, meant it did not fit a normally anticipated nerve root distribution. That caused him to conclude that that injury was not of a serious nature. His finding of a pain free range of motion of the left shoulder reassured him the applicant did not suffer bursitis. His finding of the applicant suffering soft tissue injuries was a diagnosis of default because he was unable to find any muscular tenderness of her neck and left shoulder. The MRI findings satisfied him that the applicant had degenerative changes at C5/6 which were not responsible for her left-sided symptoms. He agreed with Mr Khan that the degeneration at C5/6 had been exacerbated but not by her employment because on the history he obtained the applicant said any small thing can trigger this.

13. When cross-examined, Mr Haig said that lifting heavy tubs of mail and working repetitively would cause the applicant to ache as if digging in the garden. He agreed that work involving the applicant raising her arms above shoulder level may aggravate her condition and she may suffer recurrences as would throwing tubs of mail, if undertaken repetitively. Mr Haig accepted that the applicant did have complaints of pain but he questioned the severity and was unable to attribute them to any pathology.

    Dr David Barton

14. Dr Barton is a consultant occupational physician who examined the applicant at the request of the respondent on 14 November 2013. He provided three reports which are found in the T-documents at pages 156-160, 163 and 171-173.

15. In his report, he said the applicant told him that the facility doctor had told her that she could ignore the results of the MRI scan because it pointed to right-sided symptoms which she did not have. Dr Barton said that advice was appropriate. He said the applicant told him that she had not had particular neck pain for the past three months, she felt she had a good range of neck movement but when pain had been present she suffered headaches. On examination, he found there were no particular areas of tenderness of her shoulder and neck, each also having a full range of movement. He reported the description of shoulder pain was inconsistent with inflammation of the bursa. The only restrictions he would place on the applicant’s work would involve adequate job rotation, restriction on weights being lifted and regular breaks. He understood the applicant was not receiving any treatment and did not believe that she needed any, other than reassurance.

16. In evidence, Dr Barton said the applicant had previously suffered soft tissue injuries which had resolved. He said bursitis is a condition which is only found radiologically, not clinically, and is almost always found in adults. He disagreed with an opinion expressed by Mr Khan that the applicant’s shoulder symptoms were consistent with bunching of her tendons. He reaffirmed the MRI findings of 2011, although showing minor long-standing degenerative changes, were of no relevance. He thought it was possible a complaint of pain by the applicant when moving her left arm in an arc between 140 and 150 degrees could point to a problem with the bursa.

17. In cross-examination Dr Barton said that he had attended the DLC and had spent half a day with the rehabilitation staff. He had observed the machinery in operation. He agreed that a bursa could be aggravated by movement, awkward postures and repetition, but would settle when repetitive work ceased. He agreed that work above shoulder height might aggravate the applicant’s left shoulder as would lifting the lid on the spectrum when clearing blockages. He thought lifting the right paddle on the FMOCR and pushing mail with the left paddle could aggravate the shoulder. Attempting to free mail tubs which had become stuck and pushing a kingfisher could also aggravate the shoulder and precipitate pain.

18. When re-examined, Dr Barton said rather than the above events causing aggravation it would be more appropriate to refer to them as causing an exacerbation, that is, having a temporary rather than a permanent affect. When symptoms following the work undertaken above were exacerbated he expected that they would settle either within a few minutes or overnight.

    Conclusion and Reasons for Decision

19. These applications are reviews of two decisions concerning left shoulder and neck injuries which the applicant alleges either arose out of or in the course of her employment or to which there was a contribution by the employment to a significant degree, should there be a finding that the conditions are properly described as diseases.

20. The decision concerning the applicant’s left shoulder was made on the basis that the respondent had no present liability to pay compensation pursuant to sections 16 and 19 of the Act, because she did not currently suffer the effects of it (T58, page 193).

21. The decision concerning the applicant’s neck denied liability pursuant to section 14 of the Act because an injury has not been sustained for the purposes of sections 5A and/or 5B of the Act (T60, page 198).

22. The emphasis of the review was upon the work undertaken by the applicant over many years of employment. A considerable focus was also directed to the injuries alleged by the applicant and whether the respondent’s liability for the left shoulder should continue and whether it should have a liability in respect of the neck injury.

23. Enquiries of this type are not unusual in compensation applications yet the evidence in this review, concerning the duties of the applicant, was almost forensic in nature. The evidence given by the applicant and Mr McShane comprised descriptions of work practices and the functions of machinery used in processing mail and their commentary on and interpretation of a number of photographs which were received into evidence.

24. The respondent has implemented a practice at the DLC of its employees undertaking a number of different functions by periods of rotation throughout each working day. The intent, of course, is to reduce the risk of injury. However the work is undertaken manually, necessarily involving the use of both arms, sometimes working above shoulder height and to lift, carry, push and pull tubs, trays and handfuls of mail. The work is undertaken constantly and often rapidly. Enormous quantities of mail are processed in short periods of time within each period of rotation. The work also extends to throwing tubs of mail weighing approximately 10 kilograms and pushing a kingfisher weighing approximately of 130 kilograms when fully loaded with nine tubs containing mail.

25. The applicant did not take time off work after the episode in July 2011 or August 2012. She returned to work on restricted duties certified initially by Dr Julien and later by Dr Muzaffar. She had one day off work after the episode of May 2012 and then commenced annual leave. Treatment has mainly involved non-prescription analgesia and, on occasions, Panadeine Forte, heat packs, gels and physiotherapy. There are some domestic tasks that she is unable to undertake and discomfort when undertaking others.

26. The respondent conceded that staff levels in July 2011 were unusually low and the applicant was probably then working at a faster rate than was normal. It was conceded that she then experienced neck and left shoulder pain. It was submitted that the symptoms then experienced by the applicant resolved within three or four months during which time she worked on restricted duties. It was noted that she was certified as fit to return to normal work on 26 September 2011.

27. The respondent also conceded that the applicant did suffer some left shoulder pain following the episodes in May and August 2012 but denied any neck pain or aggravation of any pre-existing neck injury or disease. It was submitted that the left shoulder injury had resolved by November 2013, when the applicant consulted Dr Barton.

28. The respondent submitted that if the applicant had any recurring symptoms of pain they would not necessarily precipitate incapacity or require treatment but if she did, new compensation claims could be made.

29. The presence of neck pain as described by the applicant raised issues about whether there was a neck injury or disease (and if there was), whether there was a connection with the employment, whether the neck pain was the manifestation of an injury separate and distinct from the left shoulder, or whether it was the cause of referred shoulder pain. A summary of the evidence concerning the applicant’s neck injury, as alleged, and my findings, are as follows.

30. The first complaint of neck pain was made on 8 July 2011 (T6, page 28) and described as neck strain in the compensation claim made on 18 July 2011 (T9, page 46). The applicant was referred to Dr Julien, the facility medical officer who arranged an MRI, on 26 August 2011 (T25, page 108). A summary of the results are found at paragraph 42 above.  The history given to the radiologist was of radicular bilateral shoulder pains. I assume that history was given to Dr Julien by the applicant. The radiologist reported that the images may account for a right C6 radiculopathy. No left C6 radicular displacement is shown. I understand those findings to mean that despite a history of bilateral shoulder pain, the images suggest any pain is more likely to be referred from the neck to the right side rather than the left side.

31. The next incident form completed by the applicant was 25 May 2012 recording pain in her left shoulder and upper back from 8 May 2012. Between 8 July 2011 and 24 May 2012, the applicant consulted Dr Muzaffar on a number of occasions but did not give any history of any neck pain. The applicant said she did have neck pain in May 2012 and she complained of it to Dr Muzaffar. The clinical file does not record the presence of any neck pain or complaint made of it. The applicant said she was then stressed and under pressure. The incident form (T11, page 52), a statement by the applicant (T11, page 54) and the compensation claim form (T14, page 74) refers to left shoulder pain only. I am not satisfied the applicant then suffered neck pain.

32. The next reported incident occurred on 16 August 2012. In the incident form, the applicant recorded pain in her left shoulder/neck area (T21, pages 88 and 90). The compensation claim made on 30 August 2012 records the injury as left shoulder pain (T26, page 109). Dr Muzaffar examined the applicant on 17 August 2012 and recorded that the reason for contact was shoulder pain. On examination she found midline cervical tenderness-c2-C3. A certificate issued on that day recorded the injury as left shoulder pain radiating to neck (T61, page 212). On 30 August 2012, the applicant consulted Dr Muzaffar. There is no recorded complaint in the clinical file of neck pain. It was on this day the applicant completed her claim for compensation. Dr Muzaffar referred the applicant for an x-ray and ultrasound of her left shoulder. Radiology was not requested of the applicant’s neck.

33. The applicant said she did not record neck pain in her compensation claim form because of the severity of pain in her left shoulder. I do not understand that explanation. She said she complained of neck pain to Dr Muzaffar. The clinical notes had no record of such a complaint having been made. Although a finding of C2 – C3 tenderness was found, there is nothing from the clinical notes, the content of the certificate issued or the radiology referral, which was confined to the left shoulder, pointing to any knowledge by Dr Muzaffar of the presence of neck pain.

34. The applicant said that she later remembered that she had not recorded neck pain in her compensation claim form and told either Marie Fernandez or Eva Pragier that she had suffered neck pain and was told it’s all taken care of. The respondent accepted liability, following this compensation claim for left subacromial bursitis, being an injury of the left shoulder. The applicant did not lodge an appeal against that decision making findings only in relation to her left shoulder. I am not satisfied the applicant did then have neck pain.

35. The clinical file of Dr Muzaffar records the applicant was examined on 31 August 2012.  She recorded, in her clinical file, a reference to the MRI of the cervical spine. A copy of the MRI report had been given to Dr Muzaffar by the applicant. She recorded the words right sided radiculopathy in her file. The notes made at this consultation indicate only the left shoulder was examined.

36. Between 31 August 2012 and 7 June 2013, the applicant consulted Dr Muzaffar on a number of occasions. A clinical note was made concerning the applicant’s left shoulder at consultations on 21 September 2012, 1 November 2012, 21 January 2013, 18 March 2013 and 13 May 2013. There was also a non-specific complaint of pain while working on 18 April 2013. There were no consultations concerning the applicant’s neck.

37. On 7 June 2013 there is a clinical note made of the applicant having been assessed by an Ot (occupational therapist) at a spinal clinic. The words neck pain contributing and advised need to restart physio are also recorded but the clinical notes do not record any examination or complaint by the applicant concerning her shoulder or neck. Dr Muzaffar had a copy of the report from the Dandenong Spinal Management Clinic (T36, pages 134-142).

38. The occupational physiotherapist recorded (page 135) that the applicant reported her main problem was the left side of her neck and her symptoms were described as intermittent dull ache of the left cervical spine and left posterior shoulder with pain occasionally radiating into the lateral left arm and intermittent headaches affecting the bilateral parietal regions and retro-orbitally. It was also reported (page 138) that the applicant presented with signs consistent with persistent cervical spine dysfunction and current treatment includes monthly review with her general practitioner. The clinical file of Dr Muzaffar does not show the applicant having had any treatment for persisting cervical spine dysfunction nor does it point to any monthly review of it or at all.

1. Prior to 7 June 2013, certificates issued by Dr Muzaffar recorded the injury as left shoulder pain radiating to neck. It would appear that Dr Muzaffar was influenced by the report of the occupational physiotherapist because on 7 June 2013 she issued a medical certificate (T61, page 232-233) which, for the first time, recorded left shoulder pain and neck pain which she described as cervical spine dysfunction and referred to other findings made by the radiologist following the MRI on 26 August 2011. Dr Muzaffar said she became satisfied on 7 June 2013, having read the report of the occupational physiotherapist, that in addition to left shoulder pain, the applicant also had referred pain from her neck. Although she acknowledged that the MRI pointed to right radicular pain, she was not prepared to exclude left-sided symptoms having their origin in the applicant’s neck as she also recorded in the clinical file during a consultation on 29 August 2013 neck pain still ongoing radiating to left arm… Neck pain with referred arm pain. A certificate issued on 29 August 2013 recorded under Comments that [c]ervical spinal dysfunction is a permanent condition, patient will have flare up of her symptoms at times (T61, page 241-242).

2. Dr Barton reported the applicant had not ever had a right-sided radicular problem, the results of the MRI did not provide any useful or meaningful information and the findings could be ignored (T45, page 158). He said the applicant had pain at the C6 level which he presumed was a mild soft tissue injury (Mr Haig was of a similar opinion). He said he was also told by the applicant that she had not had any neck pain for the preceding three months. On examination she had a good range of neck movement. The applicant said that she did tell Dr Barton that she had not had neck pain for three months but later said she had experienced neck pain in that period and felt under pressure when answering Dr Barton’s questions.

3. Dr Muzaffar referred the applicant to Mr Drnda, a neurosurgeon who examined the applicant on 25 November 2013. He reported (T51, page 170) that the applicant did not have any symptoms at the consultation and on examination she did not have any neurological deficit and movement of her neck was normal.

4. Mr Khan said the applicant had mild asymptomatic degenerative changes in her cervical spine together with chronic soft tissue injury. He said she continued to suffer residual symptoms and the effects had not ceased.  In cross examination, when he was informed the applicant had given a history to Dr Barton of being free of neck pain without other symptoms for three months, he said the aggravated effects by the employment would have resolved.

5. On balance I am not satisfied that the applicant’s neck injury arose out of or in the course of her employment. If it is treated as a disease, I am not satisfied that there has been any contribution from the employment by a significant degree to it. The radiology pointing to the potential for right radiculopathy and the absence of right shoulder symptoms (save for a few complaints of a right-sided ache) discounts any involvement between the neck and the symptoms of the left shoulder. The absence of reporting neck symptoms in claim forms, the relative infrequency of any attendances on Dr Muzaffar for treatment of neck pain, a history of being pain-free for three months given to Dr Barton (which I accept was given) about two weeks before Mr Drnda found there was no neurological deficit, suggests in combination that the applicant has suffered no more than slight neck strain of mild consequence, from time to time. The findings made by the occupational physiotherapist, although made at consultation on 9 May 2013, of persisting cervical spinal dysfunction, were inconsistent with the majority of the medical opinion heard in this review.

6. The decision made by the respondent on 6 March 2014 denying liability for the neck injury should be affirmed.

7. I am satisfied the applicant’s left shoulder injury should be viewed very differently and for the reasons which follow I am satisfied that it is persisting.

8. The applicant has been consistent in her reporting of left shoulder pain since July 2011, in each incident report and compensation claim form. She also has a consistent history of attendances on Dr Muzaffar with complaints of left shoulder pain and discomfort. She has had infrequent absences from the workplace because of the shoulder pain but that should not be understood as her injury being insignificant or the effects of it having ceased.

9. Dr Muzaffar has been treating the applicant for almost four years and has had the opportunity to regularly assess, observe and examine the applicant. She is in a superior position, than the other medical witnesses in this review, to determine the voracity of the applicant and her complaints of left shoulder pain and form an opinion about the relationship between it and the employment. Dr Muzaffar continues to provide certificates in support of both the continuing presence of the left shoulder injury and restrictions upon her work. I am satisfied she would not have issued the certificates unless there was a sound clinical basis for doing so.

10. The decision under review in respect of the left shoulder has made a finding that the injury is left subacromial bursitis. That description of the injury was recorded in the third reviewable decision following the claim made in August 2012. That description appears to have emerged from the results of an ultrasound of 12 September 2012 and from the certificates of Dr Muzaffar.

11. But there has not been any consistent description of the applicant’s left shoulder injury. The applicant herself has complained of pain, not confined to the shoulder, but also to her upper back (which she described in evidence as being around the top of her left shoulder blade) and various descriptions have been given by Dr Muzaffar in her certificates of pain in the applicant’s thoracic spine, in her scapular region, possible tendinopathy and muscular strain.

12. Dr Barton dismissed bursitis as responsible for the applicant’s pain. He said it was a condition that is most likely found in the majority of the population of the applicant’s age and is determined only by ultrasound, not clinically.  But it was demonstrated during ultrasound and he acknowledged that a complaint of pain by the applicant when moving her left arm in an arc between 140 and 150 degrees could point to possibly a problem with the bursa. In his report (T57, page 185) he recorded the pain described by the applicant around the top of her shoulder blade and lateral to the shoulder joint and into the upper arm did not fit with an inflammation of the bursa. That suggests to me that the applicant’s pain may have multiple causes, not confined to bursitis.

13. Mr Khan was satisfied the applicant did have subacromial bursitis and bunching of the coraco-acromial ligament. He said the bursa was thickened and the ability of the tendons to glide were impaired. Dr Barton dismissed the applicant’s symptoms as consistent with bunching of the tendons however the presence of such a phenomena cannot be dismissed because Dr Muzaffar arranged a repeat ultrasound of the left shoulder on 3 October 2013 (Exhibit A3, pages 22-23) which although reporting the tendons and rotator cuff had normal appearance without tear or tendonopathy, a mild subacromial bursal thickening with bursal bunching at the coraco-acromial ligament was present. The radiologist reported that if it was clinically indicated, an ultrasound guided cortisone injection could be performed. These findings add another layer of complexity to defining the left shoulder injury. In fairness to Dr Barton, it would not appear he was not aware of that ultrasound finding.

14. Mr Haig said he did not take the applicant’s left shoulder injury seriously because the applicant demonstrated a non-anatomic distribution of pain. He found the applicant suffered soft tissue injuries which he described as a diagnosis of default because he was unable to find any muscular tenderness in the applicant’s left shoulder. He said that heavy and repetitive work would cause the left shoulder to ache as if digging in the garden perhaps, but her shoulder pain had a proximate association with her work. He did concede that work above shoulder level and throwing tubs of mail may aggravate her left shoulder condition and cause recurrences of pain however he could not attribute her pain to any pathology and he questioned the severity of her complaints of pain.

15. The respondent decided that it had no present liability to pay compensation from 3 February 2014 pursuant to sections 16 and 19 of the Act.

16. It was contended by the respondent during the hearing of this review that the left shoulder injury had resolved by November 2013 when the applicant consulted Dr Barton. It was submitted that if the applicant did require treatment or was incapacitated by the left shoulder injury subsequently she could lodge a new claim for compensation.

17. The applicant said she has suffered pain in her left shoulder since August 2012. On most occasions it is mild, but there have been occasions when it has become severe and which she has associated with heavy and repetitive work. Despite the applicant having had the benefit from time to time of restricted duties, all of her work is undertaken using both arms.

18. I am satisfied the applicant did not cease to suffer the effects (T58, page 193) of the previously accepted left shoulder injury as at 3 February 2014.  In fact, a report of pain and modification of work duties has subsequently occurred. I am satisfied the effects are continuing.

19. Dr Muzaffar, who continues to provide certificates for restricted duties, issued a certificate on 1 August 2014 following a report of left shoulder, arm, elbow and wrist pain on 29 July 2014 after working on the BCS (ST28, pages 62 and 96). The certificate issued on 1 August 2014 recorded the work restrictions as NO BARCOING AND NO MLOCR (sic). Many certificates for a number of months preceding the certificate of 1 August 2014 did not restrict the applicant from working on the BCS but limited it to periods of no more than one hour with 20 minute rotations.

20. The report of pain on 29 July 2014 and the certificate issued on 1 August 2014 points to the applicant, who has not been pain free since August 2012, having a continuing vulnerability to increased pain by the aggravating or exacerbating effects of the work.

21. I am satisfied the injury should be properly diagnosed, consistent with the opinion of Mr Khan and the report of the radiologist on 7 October 2013 as mild subacromial bursal thickening with bursal bunching at the coraco-acromial ligament. I am satisfied the injury arose out of or in the course of the employment. (If it is a disease and therefore an ailment, I am satisfied that there was a contribution to it, by a significant degree, by the employment.)

22. Having found the applicant does continue to suffer the effects of the left shoulder injury, the respondent remains liable pursuant to sections 16 and 19 of the Act. The decision under review dated 21 February 2014 is set aside and in substitution it is decided that the applicant suffers the injury of mild subacromial bursal thickening with bursal bunching at the coraco-acromial ligament. The respondent has been liable to the applicant from 3 February 2014 pursuant to sections 16 and 19 of the Act.

23. The applicant is entitled to have her legal costs and disbursements paid by the respondent pursuant to paragraph 6.10 of version 2.0 of the Guide to the Workers Compensation Jurisdiction published by the Tribunal in September 2013.

I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member

....[sgd]................................................

Associate

Dated 15 June 2015

Date(s) of hearing	11 - 13 May 2015
Counsel for the Applicant	Mark Seymour
Solicitors for the Applicant	Maurice Blackburn Lawyers
Counsel for the Respondent	Ray Ternes
Solicitors for the Respondent	Sparke Helmore Lawyers