Johnson and Australian Postal Corporation
[2007] AATA 2086
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2086
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1032
GENERAL ADMINISTRATIVE DIVISION ) Re ANITA JOHNSON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr MEC Thorpe, MemberDate21 December 2007
PlaceSydney
Decision The decision under review is affirmed.
…………………[Sgd]…………………
Ms N Isenberg
Senior Member
CATCHWORDS
WORKERS COMPENSATION – Safety, Rehabilitation and Compensation Act 1988 (Cth) – injury resulting in permanent impairment – bilateral carpal tunnel syndrome – assessment of medical evidence – hand grasping and digital dexterity – whole person impairment rating less than 10 per cent – decision under review affirmed.
Safety Rehabilitation and Compensation Act 1988, sections 24 and 27
Re Johnson and Australian Postal Corporation [2004] AATA 1155
Comcare v Fiedler (2001) 115 FCR 328
Re Smith and Telstra [2005] AATA 1267
REASONS FOR DECISION
21 December 2007 Ms N Isenberg, Senior Member
Dr MEC Thorpe, MemberBACKGROUND
1. Mrs Johnson was employed as a mail officer with Australia Post on 26 June 2000. She had previously been employed by Australia Post from 1977 to 1993 initially as a letter coder and, from 1980, in mail hand sorting. When she re-commenced work with Australia Post again in 2000 she was working five days a week, five hours a night on a barcode sorting machine.
2. On 19 October 2002, Mrs Johnson lodged a Claim for Rehabilitation and Compensation in respect of carpal tunnel syndrome (“CTS”) of both right and left hand wrist and upper limbs, sustained in January 2001. Mrs Johnson stated on her claim form that the physical demands of her job, consisting of repetitive hand, arm and shoulder movements, led to her CTS injury. This was not in fact a new application, as an earlier determination by Australia Post on 18 June 2002 was that Australia Post was not liable to pay compensation for a neck injury and carpal tunnel syndrome.
3. In Re Johnson and Australian Postal Corporation [2004] AATA 1155 this Tribunal reviewed six decisions by Australia Post relating to Mrs Johnson’s claim for CTS as well neck injury, permanent impairment of the right shoulder, a left shoulder condition, sick leave and pain management consultations.
4. The Tribunal decided that Australia Post was not liable to pay compensation for a neck injury, but was liable for ongoing incapacity for CTS. In that decision, the Tribunal also affirmed the denial of liability for permanent impairment of the right shoulder and for a left shoulder condition; found liability for sick leave from 3 to 5 March 2003 for post-operative convalescence and right shoulder pain; affirmed the decision denying liability for two pain management consultations; and found on and from 22 March 2004 that Mrs Johnson was entitled to payment of compensation in respect of her right shoulder.
5. However, with the agreement of both parties, the Tribunal was unable to make an assessment of permanent impairment in respect of CTS, as Mrs Johnson’s condition had not stabilised and treatment of her wrists was ongoing.
6. On 30 May 2006, Australia Post issued a determination denying liability to pay compensation to Mrs Johnson in respect of an aggravation to bilateral CTS, on the basis that she did not qualify for an impairment rating of 10 per cent pursuant to Table 9.4 of the Guide to the Assessment of the Degree of Permanent Impairment (“the Guide”).
7. On 12 July 2006 Mrs Johnson requested a reconsideration of the determination dated 30 May 2006. The determination was affirmed by Australia Post on 27 July 2006.
8. On 15 August 2006 Mrs Johnson lodged an application for review of the decision of Australia Post dated 27 July 2006.
ISSUES FOR THE TRIBUNAL
9. The issue for the Tribunal to consider is whether Mrs Johnson’s injuries to her wrists sustained during the course of her employment with Australia Post resulted in a permanent impairment in respect of an aggravation to bilateral carpal tunnel syndrome, which entitles Mrs Johnson to receive compensation pursuant to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
10. We first need to be satisfied Mrs Johnson suffered from bilateral CTS, and if so, that her level of permanent impairment meets the 10 per cent threshold pursuant to section 24 of the Act. If the answer to the latter is affirmative, we will then need to decide if her CTS was aggravated by her work with Australia Post.
CONSIDERATION AND FINDINGS
Does Mrs Johnson suffer carpal tunnel syndrome?
11. Mrs Johnson gave evidence that she first had pains in each wrist in 2001. She had pins and needles in the right wrist and some numbness. The right wrist was worse than the left and would wake her three to four times a night. She had surgery on each wrist in 2002. The operation on her right wrist was repeated in 2005.
12. Mrs Johnson's hands and wrists have been examined by many doctors as reported in the more than 200 pages of medical documentation before us. Her initial Claim for Compensation for CTS listed her General Practitioner, Dr Leventhal, Rheumatologist, Dr Johnson, and Orthopaedic Surgeon, Dr Sherry, as attending doctors in 2002. A nerve conduction report dated 3 June 2002 by Dr Philip McManis reported "There are median neuropathies at the wrists (carpal tunnel syndrome) bilaterally, moderate to severe in degree and worse on the left." Dr Sherry performed surgery for CTS to both wrists in August and November 2002.
13. Some improvement was noted after surgery. In March 2003, Dr McGill reported bilateral CTS but that she had been cured by surgery, and although she reported ongoing symptoms in her hands, the findings on examination were not in keeping with median nerve dysfunction. Dr McGill also reported - and was quite forthright - that her symptoms of CTS came on during an extended leave period when she was not at work, and that the causation was constitutional. In contrast, Dr Sherry, the treating surgeon, was of the opinion that work performed by Mrs Johnson with Australia Post was a material cause to the onset of symptoms of the CTS.
14. A further nerve conduction study dated 9 October 2003 was interpreted by Dr McManis as follows:
There are median neuropathies at the wrists (carpal tunnel syndrome)) bilaterally, moderate to severe on the right and mild on the left. The left side has improved and the right side has worsened since the previous nerve conduction study done in June, 2002.
15.Dr Rizkallah, Orthopaedic Surgeon, considered there to be a need for further right median nerve decompression, which he performed on 3 February 2005. The operative findings were:
Scar tissue +++. Tight and thick flexor retinaculum. Evidence of medial nerve attenuation.
16. A further nerve conduction study by Dr Jonathon Wood dated 29 March 2005 showed bilateral slowing of median nerve conduction across the wrist, but Dr Wood did not have the earlier nerve conduction studies for comparison.
17. In follow up, Dr Rizkallah considered there to be reasonable improvement, although Dr Chase reported ongoing symptoms of CTS (9 May 2005), with ongoing pain, dysesthesia and a positive Tinel's test.
18. Professor Sambrook was provided with 52 medical reports when he first examined Mrs Johnson on 14 June 2007. The history taken was that sometime between January and March 2001 Mrs Johnson developed pins and needles in the hands. At that time she was more troubled by her shoulder, and it had not been until June 2002 that she was referred to Dr McManis for nerve conduction studies. Professor Sambrook placed considerable reliance on Dr McManis whom he knew to be Mayo Clinic trained and an expert in nerve conduction studies. Professor Sambrook accepts the diagnosis of bilateral carpal tunnel lesion treated surgically with a less than optimal outcome. Under cross examination he said that CTS does not always get better after surgery. He also made the observation that resolution after surgery does not exclude the diagnosis of CTS. He noted Mrs Johnson to have some arthritis in the left wrist, but did not consider this to be symptomatic. Currently she continues to complain of constant pins and needles in both hands, the right worse than the left. She also gets a shooting pain over the palmar aspect of the wrists.
19. Professor Sambrook referred to a body of literature about the association of doing repetitive work, especially repetitive manual activity, and CTS, and referred to two meta-analyses of published studies of work-related CTS. His opinion was that repetitive manual work has been linked to CTS, regardless of any pre-existing disposition of a constitutional nature, and there was a probable relationship in Mrs Johnson's case. He discounted the possible role of her treated hypothyroidism in the genesis of CTS as she is on appropriate thyroid medication. His oral evidence was that repetition was the main factor and if it was forceful, it was more likely to result in CTS.
20. Dr Selby Brown, Orthopaedic Surgeon, accepted the diagnosis of CTS based on the history, nerve conduction studies and the need for surgery. His explanation for ongoing symptoms in the wrists and hands that are outside the median nerve distribution was that it is neuropathic pain. This is a form of referred pain and related to changes in the spinal cord subsequent to chronic pain. He considered her duties at Australia Post contributed considerably to the development of CTS, but was unable to be specific about which particular duties.
21. Orthopaedic Surgeon Dr Maxwell’s initial examination of Mrs Johnson was on 11 May 2006. His conclusion at that time was that it would appear from the clinical response from the operations that the diagnosis of CTS as a cause for the pins and needles in her hands to be unlikely. She reported a subjective feeling of pins and needles in her hands, the distribution of which was not typical for median nerve compression secondary to CTS. He described a negative Phalen's test (which is normally a very reliable test), the absence of muscle wasting and no loss of sensation. In cross examination, he described the Phalen's test as 80 per cent reliable and the success rate for CTS after surgery as 95 per cent. His conclusion was that, although she was complaining of pins and needles in both hands, he could find no evidence that she had persistent CTS and he questioned the original diagnosis, and clinically she did not have CTS at the present time.
22. Dr Maxwell made his own analysis of the nerve conduction studies performed by Dr McManis. Dr Maxwell had no knowledge of Dr McManis or his expertise. Without pursuing the details, he considered the motor nerve conduction studies as normal and although there was some distal latency recorded, he was unable to understand how a diagnosis of CTS could be based on the results of the nerve conduction studies.
23. Dr Honner, Hand Surgeon, first saw Mrs Johnson on 13 December 2006. His diagnosis was bilateral CTS due to underlying constitutional conditions and not due to her work at Australia Post. The history he took was that pins and needles in the hands commenced on 2001. He emphasised that the diagnosis is based on the whole clinical picture and that nerve conduction studies were not the “gold” standard. He attributed Mrs Johnson's ongoing symptoms to underlying degeneration and arthritic changes and not the CTS. He reported the underlying arthritic degeneration in the wrists as not due to her work but as constitutional. A bone scan on 22 June 2006 by Dr Miller was reported as showing “Scan features are consistent with moderately severe arthritis involving the right calcaneo-cuboid and calcaneo-navicular joints".
24. Dr Honner also noted that she still had some electrical abnormality present in the median nerves after surgery. He said this occurs in about 20 per cent of patients with CTS after surgery, and may occur with or without symptoms. He considered the CTS was basically cured by surgery. At the time of his examination he found normal sensation, no wasting and inappropriate response to the usual tests. He noted she complained of pins and needles all over the hands and reported increasing pain deep in the anterior aspect of each forearm volarly, and also over the dorsum of the wrist, the left hand more than the right.
25. After reviewing all the medical evidence, we find that Mrs Johnson suffers from bilateral CTS with clinical onset in 2001. This diagnosis has been made by all orthopaedic and hand specialists who have examined Mrs Johnson, including her two treating surgeons, except for Dr Maxwell. We also find the clinical diagnosis is supported by nerve conduction studies, despite disagreement by Dr Maxwell.
26. Dr Maxwell did not examine Mrs Johnson until 2006. Another reading of his evidence was that she did not suffer from CTS at the time of his examination, in other words, he could find no evidence of persisting CTS, a view also shared by Dr Honner in 2006. We note Dr Honner had considered her to have had bilateral CTS prior to surgery. It would appear Dr Maxwell relied on his own interpretation of the nerve conduction studies that did not support a diagnosis of CTS prior to surgery as the basis for his opinion. Dr Honner did not consider nerve conduction studies as the “gold” standard, but only part of the whole picture for the diagnosis of CTS. Professor Sambrook reported the neurophysiologist performing the nerve conduction studies, Dr McManis, to be of world standard, having trained at the Mayo Clinic. We accept that Dr Maxwell may be experienced interpreting nerve conduction studies, but he does not share the same level of special expertise or training in neurophysiology as experts such as Dr McManis.
27. The operative findings for relief of CTS were available for Dr Maxwell, as well as reports from Dr McGill, who saw Mrs Johnson for the Respondent prior to surgery and considered her to have bilateral CTS. The other specialists including Professor Sambrook and Dr Selby Brown are also in agreement that she suffered from CTS. The evidence, in our view, is overwhelming that Mrs Johnson suffered from CTS dating back to 2001.
Level of Impairment
28. Before turning to consider whether Mrs Johnson’s work as a postal officer aggravated her CTS, we decided to first consider if the degree of permanent impairment reaches the threshold of 10 per cent according to Table 9.4 of the Guide, in order to satisfy the requirements of section 24 of the Act. If her level of permanent impairment did not reach the 10 per cent threshold, no rating could be made and her claim for permanent impairment must fail, even if her work at Australia Post aggravated her condition.
29. It was submitted on the Applicant‘s behalf that her CTS was appropriately rated at at least 10 per cent, and probably 20 per cent of Table 9.4, which provides as follows:
10% Can use limb for self care AND grasping and holding BUT has difficulty with digital dexterity.
20% Can use limb for self care BUT has NO digital dexterity OR has difficulties grasping and holding.
30. Mrs Johnson provided, at her solicitor's request, two lists of daily activities which she “has problems doing”.
31. One was headed “fingers digital” and listed the following: holding a magazine; using a pen or pencil; driving; preparing food, peeling, cutting, mashing, stirring; opening jars, bottles or cans; sewing; using fork and knife; opening the front door with a key; starting the car with the key; vacuuming; sweeping, mopping; wiping up dishes; washing up; pegging clothes on line; brushing hair; washing hair; holding a razor for legs and armpits; cleaning windows; mowing the lawn; wiping personal parts; brushing teeth; tying shoe laces; clothes with buttons; masturbation; using tongs to turn sausages or meat over.
32. The other was headed “hands grasping”: driving; preparing food, peeling, cutting, mashing, stirring; opening jars, bottles or cans; holding material to sew, using a needle to sew; cutting bread or meat; vacuuming; sweeping, mopping; wiping up dishes; washing up; pegging clothes on line; brushing hair; washing hair; holding a razor for legs and armpits; cleaning windows; mowing lawn; pulling the cord to mow the lawn; turning baked dinners over or vegetables.
33. Her evidence was that the she could not carry weights of five to eight kilograms and she said she had not tried to carry greater weights.
34. As to being able to drive, she agreed that between 2001 and 2006 she was able to drive from her home in Werrington Downs to her workplace at Strathfield. She said she was able to do this because her car has power steering and she does not use the car now every day. She said she could not even carry a magazine. She said she has difficulty opening car doors and turning the ignition. She said she never carries her handbag in her hand, only ever on her left shoulder.
35. A video was played at the hearing, depicting Mrs Johnson on 22 August and 12 September 2007. She was shown opening a car door without any apparent difficulty, carrying a magazine (or junk mail), carrying her handbag in her left hand and carrying (albeit with another person) a very large television and loading it onto a trailer. In response Mrs Johnson said that she estimated the television to weigh only 10-15 kilograms so the weight she held would only have been about eight kilograms.
36. Mrs Johnson was asked about a medical examination by Dr Bencsik, Orthopaedic Surgeon, on 17 July 2001 where she complained about dropping things from her right hand, inability to do some housework without pain (including washing her hair, pegging out the clothes, vacuuming and mopping), tightness in the base of her neck when twisting her head to reverse her car, “pins and needles” in her right hand present “most of the time” even at rest, and finger tingling when she wakes up in the morning. These complaints were said to relate to her pain in the right shoulder. We note the similarities in the limitations described attributable to that condition and her present complaints.
37.Dr Honner found no impairment of digital dexterity with any loss of finger movement. He considered she gave an inappropriate response to testing for grip strength. At least 30 per cent of loss of function of the thumb is required to lessen grip strength and Mrs Johnson’s loss of range of movement in the thumb was only slight. In any event those changes in her thumb were due to osteoarthrosis. He also opined that the video of her carrying a large television contradicted any problems with grip strength and difficulty with wrist movements. He offered zero per cent whole person impairment (“WPI”) in relation to either limb in accordance with Table 9.4.
38.Professor Sambrook had tested digital dexterity using five paper clips and noted some weakness of grip. He agreed the paper clip test required the co-operation of the patient. He considered her difficulty with digital dexterity as more than minor and equated to 10 per cent impairment according to Table 9.4. He did not ask about grasping and holding.
39. Dr Selby Brown considered Mrs Johnson had no difficulty with self care or grasping and holding and gave an assessment of 10 per cent under Table 9.4 for each upper limb. He said there was nothing on examination to justify any other rating. Subsequently on receipt of a self-reported document prepared by Mrs Johnson to do with “fingers digital” and “hands grasping” he adjusted his assessment to 20 per cent WPI in each of her upper limbs.
40.Dr Maxwell noted that two-point discrimination was four millimetres on the fingers, indicating good sensation in the digits, and he took the fact that she had also been doing sorting to indicate her digital dexterity to be good. He felt she had zero per cent WPI of both upper limbs according to Table 9.4 and he did not consider that 10 per cent WPI could be justified on the basis of lack of digital dexterity. He did not consider her to have difficulty grasping or holding; referring, in particular, to the video evidence in which she was able to share the carriage of a substantial television set, which was estimated to weigh about 40 kilograms. He would not have expected difficulty with dexterity with symptomatology of pins and needles. Post–operative scarring did not give rise to problems with digital dexterity or grasping and holding.
41. Neither Professor Sambrook nor Dr Selby Brown attempted to eliminate the effects of her other conditions.
42. We were referred to Comcare v Fiedler (2001) 115 FCR 328 where the term “digital dexterity” was considered. At paragraph 11 the Full Court noted:
Paragraphs 1 and 2 of this Table are of relevance here. The Tribunal referred to what one of the medical witnesses said to the effect that "dexterity is being able to handle things neatly" and said:
"56. It is the Tribunal's view that, in context, digital dexterity encompasses more than ‘handling things neatly'. It includes in our opinion the capacity to handle things skillfully and efficiently or, as suggested in Toohey and Australian Postal Commission AAT Decision No. 13360, @ para. 52 `ease of use of the fingers and hand without undue restriction'.
43.At paragraph 22 the Court said:
Something more than minimal problems with digital dexterity is required. But if a person, as a result of his injury, finds it troublesome or not easy to do tasks requiring digital dexterity, that will, adopting the approach to interpretation required by Whittaker at 544-545, justify a 10%impairment assessment under par 1 of Table 9.4.
44. We were referred several times to Dr Thorpe’s decision in Re Smith and Telstra [2005] AATA 1267, at paragraph 32:
Fiedler (supra) is clear that decisions dealing with Table 9.4 means there is no requirement that assessment under this Table should be taken purely by reference to a simple test undertaken on one particular day and that the overall history of the patient’s difficulties are entirely relevant to each doctors assessment. A difficulty with this case is that there is no demonstrable pathology and the diagnosis is descriptive rather than clinical.
45. We find that the Applicant has overstated her limitations and that her contentions are unsupported by the medical evidence. In coming to this view, we do not rely solely on the video evidence, but on the differing medical evidence as to her capability. We also note that her symptoms were previously said to relate to her shoulder condition, at a time when, according to her evidence, she was experiencing symptoms associated with her CTS.
46. Further, we are satisfied that the Applicant was unlikely to be making a genuine effort when she was asked to do a test in digital dexterity. The evidence of Professor Sambrook was that the paper clip test requires co-operation, and we do not think that was provided. Real ability was demonstrated in the surveillance situation when she was not aware that she was being observed. We find that at odds with the extensive list of limitations provided in her written statement. Such extensive limitations would make day-to-day functioning extremely difficult. Mrs Johnson clearly does not have that level of impairment.
47. We are prepared to accept that she has a minor discomfort of the hands and wrists from time to time, based on the history of the matter, on the objective evidence available. This does not, however, entitle her to any compensation under Table 9.4.
48. Having come to this view, it is not necessary for us to consider the remaining issue, that being whether Mrs Johnson’s work with Australia Post aggravated her CTS condition.
DECISION
49. The Tribunal affirms the decision under review.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr MEC Thorpe, Member
Signed: ................................[Sgd]................................................
AssociateDates of Hearing 3 and 4 October 2007
Date of Decision 21 December 2007
Counsel for the Applicant David Richards
Solicitor for the Applicant Hamad Zreika, Slater & Gordon
Counsel for the Respondent Geoffrey Johnson
Solicitor for the Respondent Graham Jones, Graham Jones Lawyers
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