Johnson and Australian Postal Corporation
[2004] AATA 1155
•5 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1155
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/862
GENERAL ADMINISTRATIVE DIVISION ) N2002/1880
N2003/851
N2003/884
N2003/886
N2004/1001Re ANITA JOHNSON Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr.M.E.C.Thorpe, Member Date 5 November 2004
Place Sydney
Decision The Tribunal decides as follows:
N2002/862: The reviewable decision dated 18 June 2002 is set aside. In substitution for the decision set aside, the Tribunal finds that Australia Post is not liable to pay compensation for a neck injury but is liable to pay compensation for ongoing incapacity for carpel tunnel syndrome.
N2002/1880: The reviewable decision dated 3 December 2002 is affirmed.
N2003/851: The reviewable decision dated 12 July 2002 is affirmed.
N2003/884: The reviewable decision dated 22 May 2003 is set aside and in substitution for the decision set aside, the Tribunal finds that Mrs Johnson is entitled to payment for sick leave from 3 March to 5 March 2003 for post operative convalescence and right shoulder pain.
N2003/886: The reviewable decision dated 23 May 2003 is affirmed.
N2004/1001: The reviewable decision dated 2 August 2004 is set aside. In substitution for the decision set aside, the Tribunal finds that on and from 22 March 2004, Ms Johnson was entitled to payment of compensation in respect of her right shoulder.
……………………..
Dr M.E.C Thorpe
Member
CATCHWORDS
COMPENSATION – review of decision relating to issues of carpel tunnel syndrome, permanent impairment of right shoulder, left shoulder condition, sick leave, pain management consultations etc – assessment of medical evidence – assessment of six reviewable decisions.
Safety, Rehabilitation and Compensation Act 1988 – sections 24, 25, 27.
REASONS FOR DECISION
5 November 2004 Dr. M.E.C.Thorpe 1.The applicant has lodged in the Tribunal applications for review of the following reviewable decisions:
N2002/862: Reviewable decision dated 18 June 2002 (T99 of TD1) which affirmed the decision of 7 May 2002 denying liability for any neck condition. The reconsideration included the upper limbs and carpal tunnel syndrome. This resulted from correspondence from Mrs Johnson on 15 May 2002 and 17 June 2002 requesting that liability be accepted for carpal tunnel syndrome.
N2002/1880: Reviewable decision dated 3 December 2002 (T27 of TD2) which affirmed a decision of 19 November 2002 (T24 of TD2) denying permanent impairment for a right shoulder condition. This decision also included denial of liability for permanent impairment of the left shoulder as a section 62 decision dated 12 July 2002 denied liability under sections 24, 25 and 27 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”).
N2003/851: Reviewable decision dated 12 July 2002 (T13 of TD2) which affirmed a decision of 3 July 2002 (T9 of TD2) which denied liability for a left shoulder condition and for any associated medical expenses and incapacity for work as a result.
N2003/884: Reviewable decision dated 22 May 2003 (T24 of TD3) which affirmed a decision of 9 April 2003 (T13 of TD3) denying an application for sick leave from 3 to 5 March 2003 for post operative convalescence and persistent right shoulder pain.
N2003/886: Reviewable decision dated 23 May 2003 (T25 of TD3) which affirmed a decision of 7 May 2003 (T19 of TD3) that Australia Post should not be responsible for the cost of pain management consultations on 11 April 2003 and 2 May 2003.
N2004/1001: Reviewable decision dated 2 August 2004 (T27) which affirmed the decision of 7 May 2004 (T21 & T22) that on and from 22 March 2004 Ms Johnson was no longer entitled to payment of compensation in respect of her right shoulder.
2. The principal aspects of the claims are to do with the right shoulder and the carpal tunnel syndrome. Mr Skinner at the outset stated that there was an aggravation of the right shoulder accepted as work related, but argued that any aggravation had since ceased and so there was no ongoing liability of the right shoulder. The bulk of the findings will be to do with the right shoulder and the carpal tunnels for which she is receiving treatment and the other matters will be attended to in the process.
3. Mrs Johnson was re-employed as a mail officer with the Australian Postal Corporation on 26 June 2000 and was fully medically fit. She had previously been employed by Australia Post from 1977 to 1993, when she ceased her employment as “she wanted a change”. She then worked with Salmat for two years and Telstra for four and a half years. She commenced work again with Australia Post in 2000, working five days a week, five hours at night on the bar coding machine. Mrs Johnson is right hand dominant and five feet two inches tall.
4. In evidence Mrs Johnson admitted to a right shoulder injury in 1984, but as far as she could remember she did not have any time off work. She also admitted that for a period of two years, in 1987, she had problems with RSI in respect of a wrist. Liability was in fact accepted for both wrists. She had some time off work with the wrist problem and also a period of light duties. She also admitted to an incident with her back in 1993 and she had a period off work because of the back problem.
5. Working on the bar coding machine Mrs Johnson said she worked standing up and that the top level of the machine was above her shoulders. On the evening of the 7th January 2001 she finished work at 4am and she drove home which took about 30 minutes. She then had a cup of coffee and retired. About three hours later on the morning of the 8th January she woke because she was in pain in the right shoulder. The pain was not relieved by Tiger Balm, so she then went to see Dr Leventhal. She spoke to Ninhtran at her work to report the problem. She returned to work on 11 January on light duties (hand sorting) and received an ultrasound to the right shoulder and also to the left shoulder and neck. She was referred to Dr Johnson, a rheumatologist, who injected the right shoulder with steroids. She ceased work in March 2001 at the directive of Australia Post. She was placed on sick leave without pay. She also mentioned some symptoms referable to the neck and left shoulder.
6. Dr Biggs an Orthopaedic specialist performed surgery to her right shoulder in February 2002 with improvement in her symptoms. She returned to work in May 2002, initially for three hours a day on restricted duties. It was at about this time that Dr Biggs injected her left shoulder because she was experiencing pain in that shoulder. She then noticed pins and needles in the hands as well as some aggravation of the shoulders. She saw Dr Sherry in August 2002 for the pins and needles in the hands and Dr Sherry performed a surgical release of the carpal tunnel in the left hand in August and the right hand in November of that year, with subsequent significant relief of symptoms.
7. Mrs Johnson returned to work in February 2003, had several days sick leave in March and then was recommended to consult Dr Sinderaj for Pain Management. When asked what was giving her problems in April and May 2003 necessitating pain management, Mrs Johnson replied “everything”.
8. Mrs Johnson ceased consulting Dr Biggs and came under the full time care of Dr Sherry for both the wrists and the shoulders. Because the left shoulder had not settled Dr Sherry was giving consideration to surgery to that shoulder.
9. Mrs Johnson said that her right shoulder was “good” before the incident in January 2001 and that she was able to move the arm in all directions. Mr Skinner had difficulty understanding what was meant by all directions. Mr Harris then took Mrs Johnson through a demonstration of the movements she was capable of performing which I summarise as follows:
Forward elevation: Comfortably to 90 degrees & with difficulty to 120 degrees (Normal is 180 degrees)
Internal rotation: To her left hip (Normal is usually to T4-T6)
Abduction:60 degrees (Normal 120 degrees) with Mr Skinner noting that on abduction to 15 degrees she experienced pain in the top of her right shoulder.
When asked by Dr Thorpe the reason for not being able to move her further, Mrs Johnson replied it’s pulling and it’s like a dead weight.
10. A summary of her demonstrated neck movements:
Rotation: One quarter
Forward flexion: Zero
Extension: One half
Lateral flexion: Zero.
11. Mrs Johnson said she noticed pins and needles in her hands were getting worse when she returned to work in May 2002. Nerve conduction studies showed some bilateral carpal tunnel. She also said that she had pins and needles in the hands previously while she was off work.
12. The evidence was that she saw Dr Sherry in August 2002 who surgically released the left carpal tunnel in August 2002 and right carpal tunnel in November with improvement in the pins and needles. At the current time Mrs Johnson said she has pins and needles in both hands, on all fingers and the palm, worse at night She can undertake all self care, can drive a motor car and is able to groom herself.
13. Her current position is as a mail sorter, working five hours a day and she has been doing this work since February 2003. Under cross examination she said she worked two to three days a week and has one to two days off each week. She is working with a new mail sorter (Exhibit A4) which is called a MMF which Mr Skinner referred to as a V Frame. Mrs Johnson indicated that the new mail sorter had different levels and that to reach the top level this required her to reach and elevate her shoulders.
14. The reason given by Mrs Johnson for having one or two days off each week was that the shoulders and neck become aggravated and that she has constant pins and needles in the palm of both hands. Mr Skinner queried whether her main problem was her neck to which Mrs Johnson replied it was everything. Mr Skinner’s reference to the neck followed the report of Dr McGill of 13 March 2002.
15. Concerning the right shoulder Mrs Johnson agreed that Dr Biggs performed surgery to the right shoulder and those four months after the arthroscopic procedure, Dr Biggs reported on 26 June 2002 that the right shoulder had settled and that she had regained a near full range of movements, to which Mrs Johnson replied she could not remember. Mrs Johnson said that her right shoulder has got worse subsequently. This was despite the fact she had remained on restricted duties using the MMF machine and not returning to bar coding.
16. Concerning the left shoulder she could not remember when she first noticed any problem and could not recall if it came on after the surgery to the right shoulder. She considered the problem with the left shoulder was caused by her having to reach above shoulder height. There was some account of the pain in the right shoulder spreading to the left shoulder and then to the neck. Mrs Johnson could not recall any incident involving the left shoulder that brought on the pain.
17. Concerning the neck, Mrs Johnson agreed she had an MRI of the neck and that Dr Genora gave her injections. She also agreed she had attended a pain clinic and that any further attendances at the pain clinic were dependent on the outcome of these proceedings.
18. Concerning the carpal tunnel, Mrs Johnson said she noticed pins and needles in her hands when she returned to work in May 2002, but in answer to Mr Harris, Mrs Johnson said she had had pins and needles in the hands previously and they came on when she was off work in respect of the right shoulder.
19. Mrs Johnson agreed that she was prescribed Zoloft in 2000 and that her relationship with her husband broke down about Christmas 2000. Mrs Johnson did not agree with Mr Skinner’s proposition that her attitude to work changed as a consequence of her marriage breakdown and financial problems. Her current medications as prescribed by Dr Leventhal are: Endone, Panadeine forte, Othorexine and Pepcidene and a fluid tablet. The Pain Clinic also prescribed Neurontin.
MEDICAL EVIDENCE
20. The Tribunal had a plethora of medical reports including those of Dr Biggs and Dr Sherry, both treating specialists for the applicant and who both gave oral testimony and Dr Bray and Dr McGill for the respondent who both also gave oral testimony. In addition there were the following relevant radiological reports and nerve conduction study:
Right shoulder ultrasound 17 January 2001: There is spurring on the undersurface of the acromion and this results in the impingement seen on the ultrasound. No rotator cuff tear.
MRI Cervical Spine 25 May 2002: Normal study.
Ultrasound and X-rays left shoulder 20 January 2001: Both reported as normal although Dr Bray thought the plain X-ray of the left shoulder may show a very small spur.
MRI Right Shoulder 14 February 2004: In the distal to anterior supraspinatus tendon, there is a mild articular side fraying and tendonitis but no tear. There is a small effusion in the subacromial bursa. There is anterior capsular thickening and a small effusion in the distal biceps tendon sheath. These findings suggest probable adhesive capsulitis.
Nerve Conduction Studies 3 June 2002: There are median neuropathies at the wrists (carpal tunnel syndrome) bilaterally, moderate to severe in degree and worse on the left. No evidence of cervical nerve root compression was found.
Nerve Conduction Studies 9 October 2003: 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 worsened since the previous nerve conduction studies done in June 2002. There is also severe left ulnar nerve lesion at the elbow. The possibility of tomaculous neuropathy should be considered.
21. Dr Biggs performed surgery to the right shoulder in February 2002 for rotator cuff tendinitis and subacromial impingement syndrome. Arthroscopically he removed some inflamed tissue from around the tendon and removed a few millimetres of bone from above the tendons to make room for the tendons. This procedure was a debridement and he found no rotator cuff tear. Dr Biggs considered the right shoulder condition to be work related. Despite an initial apparent relief of right shoulder problems as reported in June 2002 he subsequently reported in October 2002 pain and stiffness in both shoulders, a bilateral decrease in shoulder range of movement, with pain at end range of all movements and positive impingement signs bilaterally and a limited neck motion in all planes. He had originally seen her for left shoulder problems in June 2002 when she presented with left shoulder pain due to the increased work load of the left shoulder following previous surgery to the right shoulder. He had diagnosed rotator cuff tendinitis of the left shoulder and he injected local anaesthetic and steroids, with no real benefit. In 2002 he assessed her as having 10 percent permanent loss of efficient use of the right arm, and subsequently in the same year as 10 percent whole body impairment.
22. Dr Sherry originally saw Mrs Johnson in August 2002 in relation to bilateral carpal tunnel syndrome for which he performed surgery to both wrists. The left wrist will require further surgery as the nerve conduction studies still show nerve compression. Dr Sherry also diagnosed an ulnar nerve lesion at the elbow, but this ulnar nerve lesion is not for consideration. In his report of 23 March 2004 Dr Sherry reported that the work with Australia Post was a material cause to the onset of the symptoms of the carpal tunnel problems in 2001. In evidence before the Tribunal Mr Harris put to Dr Sherry that Mrs Johnson was on leave from Australia Post from March 2001 until May 2002 and that it was during this time that the carpal tunnel arose. Dr Sherry had also obtained this history. He testified that he maintained his position that work was a material cause of the carpal tunnel, because the repetitive nature of the work in the postal service. On cross examination Dr Sherry conceded that he had only obtained a history that she was a sorter with no other details of the work she performed.
23. In his report 23 March 2004 Dr Sherry opined it was his opinion that the work performed with the Australia Post was a material cause of the symptoms of the carpal tunnel problems in 2001 and it was also his opinion the same work caused the re-emergency (sic) of her right carpal tunnel syndrome. Also that the same work caused her ulnar nerve lesion in 2003. He also reported the left shoulder had not stabilised and that she was awaiting surgery to the left shoulder.
24. Concerning the right shoulder, Dr Sherry, who is currently the treating specialist, said that Mrs Johnson still has symptoms and that it was not unusual for there to be an initial improvement after surgery for six to nine months and then if there is a return to work in a similar job situation, the shoulder can deteriorate again. He considered there was 10 percent loss of use of the right shoulder. Dr Sherry had no record of the actual range of shoulder movements but was still confident in expressing his view that she had loss of less than half the normal range of movement of the shoulder as he was the treating doctor.
25. Dr Bray reported that Mrs Johnson presented as a complex problem. Firstly he obtained no history that she developed carpal tunnel syndrome at work. In his report of 13 February 2003 he said it was quite probable that some of her work aggravated symptoms in one or both shoulders. He also reported that it was simply a question of her being unsuited for some work and this work specifically would be any work that requires repetitive use of either limb at or above shoulder level. Dr Bray considered that the requirement for sub-acromial decompression to either shoulder was unrelated to her work. He considered that the temporary aggravation could be treated by ceasing work and the need for operative treatment was the result of her underlying constitutional change and propensity to develop subacromial impingement because of her subacromial spurs. He concluded that her shoulder problem was a temporary aggravation of a pre-existing condition.
26. Dr Bray agreed that it was not uncommon to have subsequent deterioration after a period of successful outcome to shoulder surgery. In answer to a question by the Tribunal whether surgery would be expected to relieve adhesive capsulitis and sub-acromial impingement syndrome, Dr Bray said one would expect a spectacular response to debridement of the sub-acromial bursae but if she had a tendency to sub-acromial impingement then returning to work or activities that were likely to involve her use of her upper limb above the shoulder, was likely to precipitate a recurrence.
27. Dr McGill reported that Mrs Johnson developed right shoulder symptoms in January 2001 and that those symptoms persisted despite her ceasing work in March 2001. Dr McGill in evidence said that he did not believe that Mrs Johnson had adhesive capsulitis as an entity, as the key finding of adhesive capsulitis was a global restriction of shoulder movement both actively and passively and that on the last occasion he saw her in March 2003 she had a full range of passive movement of the shoulder which clinically meant she did not have adhesive capsulitis. He considered the thickening of the capsule on radiology was a reflection of the impingement syndrome. At the time of surgery he said there was no rotator cuff but there was evidence of impingement. Dr McGill taking into account the clear inconsistency in her behaviour as documented by Dr Bencisk, in July 2001, had concerns about the veracity of her right shoulder condition in October 2002.
28. Dr Benecsik’s report of 17 July 2001 could not explain the “pins and needles” of the right upper limb of a stocking type with no anatomical basis and not associated with wasting. He considered it most likely that her subacromial spur was pre-existing and that her work may have led to a soft tissue overuse syndrome affecting her neck and right shoulder. He believed that the type of work she undertook was a substantial contributing factor to her right shoulder pain and impingement. At that time he estimated according to Table 9.4 that as a result of injury to her right shoulder, she had a 10 percent whole person impairment and that he would apportion all of the percentage to her work injury.
29. On questioning, Dr McGill eventually agreed that Mrs Johnson’s overhead activities as a mail sorter could aggravate her shoulder symptoms.
30. Concerning the left shoulder, Dr McGill found no evidence of impingement. Regarding the bilateral carpal tunnel, Dr McGill in evidence said it was very evident to him that her carpal tunnel syndrome was not caused and not significantly influenced by her work duties. Mr Harris cross-examined Dr McGill concerning the onset of the carpal tunnel symptoms. He reported that she had said that since stopping work her symptoms had deteriorated. She had become aware of pins and needles in her right hand, mainly at night but also when driving a car. She was unsure when the symptoms had started. Dr McGill said the symptoms clearly deteriorated in the time that she was off work and he thought that her carpal tunnel was not caused and was not significantly influenced by her work duties.
31. Concerning aggravation, Dr McGill considered it very unlikely that her work had any influence on her carpal tunnel. He said her symptoms may have been slightly worse at times when working but it was not the history she provided.
32. Dr Bencsik on 17 July 2001, when considering the upper limbs noted “Phalen’s test was negative and Tinel’s sign was negative for carpal tunnel syndrome”. He considered her arm symptoms had no anatomical basis. He was unable to explain the cause of her glove and stocking type of “pins and needles” affecting the whole of her right limb.
33. A number of medical reports were on file concerning left arm and wrist problem during 1984-6. The consensus of these reports is reasonably summarised by Dr Marshman 5 June 1986 as a mild chronic tendonitis of the flexor tendons of the left wrist. Other examining doctors at that time related her symptoms to the repetitive nature of her work as a mail sorter. Dr Younan raised the possibility of a carpal tunnel on 9 May 1986 and referred her to Dr Deveridge, Orthopaedic surgeon, who certified on 4 August 1986 that it was “RSI both wrists”. Dr Younan 9 May 1986 makes reference to a history on 1 May 1984 “that a bag was falling jumped to avoid it – then had a sore right shoulder”. There is no other reference to a sore right shoulder.
CONSIDERATIONS
34. The radiology of the right shoulder shows impingement and probable adhesive capsulitis. Recent MRI Nerve conduction studies on 3 June 2002 and 9 October 2003 show neuropathies (carpal tunnel syndrome at both wrists). Neck and left shoulder radiology are basically normal. These investigations indicate pathology in the left shoulder and both wrists.
35. I am of the opinion that Mrs Johnson has an ongoing problem with her right shoulder. Australia Post granted liability to pay compensation under Section 14 of the Act in respect of the right shoulder impingement syndrome (T62/172 of TD1), 20 November 2001. This was in respect to an injury to her right shoulder on 8 January 2001. During 2002, Mrs Johnson had surgery to her right shoulder. The evidence was that following surgery there was improvement in her right shoulder as documented by Dr Biggs in June 2002, but by October 2002 there was again deterioration in the right shoulder. Both treating specialists Dr Biggs and Dr Sherry said that it was not unusual to get a period of relief after surgery and then for the symptoms to recur. Dr Bray agreed that it was not uncommon to have subsequent deterioration after a period of a successful outcome to shoulder surgery. Dr Bray also said that if she had a tendency to subacromial impingement, then returning to work involving the use of her arm above the shoulder was likely to precipitate a recurrence. Dr McGill had some uncertainties about the diagnosis of adhesive capsulitis and also the veracity of the shoulder condition but he did agree that the overhead activities as a mail sorter could aggravate her shoulder symptoms.
36. It is my opinion that Mrs Johnson has an impingement of her right shoulder that may also include adhesive capsulitis. The right shoulder condition had required surgery. The surgery produced only temporary relief and her right shoulder pain and symptoms have recurred, which is well recognised after surgery. The doctors also agreed that the motion of raising her arm above her head in the course of her work was an aggravating factor to her right shoulder. Dr Bray was alone in saying Mrs Johnson’s shoulder problem was constitutional with the propensity to develop subacromial impingement because of her subacromial spurs, and that any temporary aggravation could be treated by ceasing work.
37. I am therefore satisfied that Mrs Johnson continues to suffer the effects of a right shoulder injury and that this injury is a continuation or aggravation of the injury that forms the basis of her original claim.
38. I also find that she was entitled to time off work from 3-5 March 2003 for post operation convalescence (Application N2003/86). This was as Mr Skinner submitted, that if the Tribunal determined continuing liability for the right shoulder subsequent to 24 March 2004, this would validate the certificate.
39. I am having difficulty assessing the percentage permanent impairment of the right shoulder. She certainly satisfies 5 percent impairment by virtue of x-ray changes with minimal loss of function of the shoulder. I have difficulty with 10 percent impairment, which equates with loss of less than half normal range of movement because of inconsistencies in her presentation and the various reports of the doctors. Dr Biggs gave a 10 percent permanent impairment, a difficulty being this assessment was made in October 2002, (even allowing for his viewing of Dr Schatz’s and Dr Peduto’s reports (5 August 2004)). Dr Sherry gave a 10 percent permanent impairment under Table 9.1(23 March 2004). Dr McGill a 5 percent permanent impairment under Table 9.1 (13 March 2003) and Dr Bencsik a 10 percent impairment under Table 9.4. (July 1991). Dr Bray would not assess any permanent impairment of any body part as he considered her condition as constitutional and that factor other than her work environment and work activities were responsible for any impairment. In his report of 13 February 2003 Dr Bray found a full range of shoulder movements but she had pain on movement of the shoulders with sub acromial catching much more marked on the right than it was on the left. Dr Sundaraj gave 10 percent impairment under Table 9.4 and also 10 percent for the left upper limb giving a combined value of 19 percent and then taking into consideration 28 percent for pain and suffering, came up with whole person impairment as per table 14.1 of 42 percent.
40. Mr Skinner referred back to the ‘80’s’ with her RSI and a letter from Dr Elliott to Dr Uden stating that “Mrs Gray’s symptoms …..may be related to the repetitive nature of her work. I believe the psychosomatic factors play a significant part in the continuation of her symptoms”. Mr Skinner submitted that one could not rule out psychosomatic factors in 2004. At the hearing, Mrs Johnson also demonstrated the various range of movements of her right shoulder.
41. Taking all of the above into consideration, I am reasonably satisfied Mrs Johnson has a 5 percent impairment of her right shoulder, but I am not satisfied she satisfies the requirements for a 10 percent impairment.
LEFT SHOULDER
42. Mr Harris submitted that the evidence was that the left shoulder problem came on after the injury to the right shoulder while the applicant was favoring the right shoulder. Dr McGill was of the opinion that the left shoulder came on while the applicant was off work. Plain X-ray and ultrasound of the left shoulder 20 January 2001 were reported as normal although Dr Bray thought there may be a very small spur. Dr Bencsik reported a full range of pain free left shoulder movements 17 July 2001. Dr Biggs 26 June 2002 reported left shoulder impingement and he injected the subacromial space. Dr Bray suggested there was only a temporary aggravation. Much seems to have been made of Dr Johnson’s description (29 January 2001) of pain in the right arm and shoulder with symptoms that have spread to involve the left shoulder girdle and that in the last week she’s developed some tightness across left shoulder girdle and neck. At that time Dr Johnson described the left shoulder as moving freely. Dr Sherry was of the opinion the left shoulder has not stabilised and may need surgery, but was alone in this opinion. If only on the issue of causation, I can find no link between any left shoulder condition and Mrs Johnson’s work. It follows that there can be no liability for a left shoulder condition and no permanent impairment.
NECK
43. Much applies to the neck as for the left shoulder. Mrs Johnson in her own evidence said she did not remember any specific injury to the neck. The MRI of the neck shows no abnormality. Again we have the description of the pain spreading from the right shoulder into the left shoulder girdle with stiffness in the neck. Restricted neck movements are reported but again on the question of causation I am unable to find any link between her neck and her work.
CARPAL TUNNEL SYNDROME
44. Mrs Johnson made an application for carpal tunnel syndrome 24 October 2002. (T20/38). This is 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. Dr Sherry intends further surgery, namely a revision of the right carpal tunnel and transfer of the left ulnar nerve. Both parties agreed that it was not possible to make any assessment for permanent impairment at this time concerning the wrists as treatment was ongoing.
45. With respect to carpel tunnel syndrome, Dr McGill is quite forthright in that her symptoms of carpal tunnel came on during an extended period when Mrs Johnson was not at work and that the causation was constitutional. In particular Mrs Johnson’s evidence was that symptoms related to her carpal tunnels deteriorated whilst she was off work. Dr Sherry 23 March 2004 was of the opinion that the work performed with Australia Post was a material cause to the onset of the symptoms of the carpal tunnel problems in 2001. Dr Sherry had performed carpal tunnel release in November 2002 and his opinion was that work performed with Australia Post was a material cause to the onset of symptoms of the carpal tunnel in 2001 and that the same work caused the re-emergency of her right carpal tunnel syndrome. In his report of 23 March he also said the same work caused her left ulnar nerve lesion.
46. Mrs Johnson had bilateral carpal tunnel syndrome, since at least 2002. I can see no relationship between the carpal tunnel and her wrist problems from 1986-1988. Carpal tunnel can be constitutional in origin and there was a discrepancy of opinion in this instance if it was caused by her work or her constitution. Having heard from Dr Sherry in evidence that her carpal tunnels were subsequently aggravated by work, Dr McGill in evidence said it was very unlikely to have been aggravated by work. On balance I find that work was an aggravating or contributing factor in her present carpal tunnel. As the carpal tunnel syndrome has not stabilised and is intended for further surgery, I am unable to make any assessment as to permanent impairment.
47. N2003/884: Pain Management: This related to accounts for pain management consultations 11 April 2003 and 2 May 2003 with Paul W. Wynn and Associates. Prior approval apparently had not been sought for these consultations and the claim for pain management had been rejected on the basis that the right shoulder condition was the sole reason requiring referral to pain management, considering the multiplicity of non work related conditions from which she suffered. Dr Sundaraj, Nepean Pain Management 12 May 2003, considered the (R), (L) shoulder and pain in the head region were related as one entity. Paul W. Wynn referred to the pain conditions as bilateral upper limb pain, wrist pain and bilateral shoulder pain. Section 16 of the Act requires that the cost of reasonable medical treatment is only payable for an accepted compensable medical injury. In Mrs Johnson’s instance the accepted medical condition was right shoulder impingement syndrome, and she has no entitlement for chronic pain syndrome. I am also not satisfied that there is sufficient evidence to support the pain management consultations as solely related to treating the accepted condition of right shoulder impingement syndrome.
CONCLUSION
48. I am satisfied there is an ongoing incapacity for the right shoulder .There was no evidence that her work produced the spur as reported by Dr Johnson 29 January 2001, but that the repetitive stretching to move sorted mail from various heights, often significantly above her head had precipitated or aggravated this problem. Most doctors have said that the right shoulder is aggravated by her raising her right arm above shoulder level in the course of her work.
49. I am not satisfied that she has a 10 percent impairment of the right upper limb under either Table 9.1 or Table 9.4. As there is no other impairment assessment to other parts of her body, Mrs Johnson is therefore not entitled to permanent impairment and is therefore not entitled to permanent impairment under sections 24, 25 and 27 of the Act.
50. Mrs Johnson is entitled to payment for sick leave from 3 March to 5 March 2003 for post operative convalescence and right shoulder pain.
51. I am satisfied there is an aggravation caused by her work to bilateral carpal tunnel syndromes but cannot make any assessment at this time regarding permanent impairment (as agreed by the parties) as the condition is still undergoing treatment. The question of any permanent impairment was not before the Tribunal.
52. Mrs Johnson has no entitlement either in terms of on going incapacity or permanent impairment for the left shoulder.
53. Mrs Johnson has no entitlement either in terms of on going incapacity or permanent impairment for the neck.
54. Mrs Johnson has no entitlement for any payments for Pain Management consultations 11 April 2003 and 2 May 2003.
DECISION
55.N2002/862: The reviewable decision dated 18 June 2002 is set aside. In substitution for the decision set aside, the Tribunal finds that Australia Post is not liable to pay compensation for a neck injury but is liable to pay compensation for ongoing incapacity for carpel tunnel syndrome.
56.N2002/1880: The reviewable decision dated 3 December 2002 is affirmed.
57.N2003/851: The reviewable decision dated 12 July 2002 is affirmed.
58.N2003/884: The reviewable decision dated 22 May 2003 is set aside and in substitution for the decision set aside, the Tribunal finds that Mrs Johnson is entitled to payment for sick leave from 3 March to 5 March 2003 for post operative convalescence and right shoulder pain.
59.N2003/886: The reviewable decision dated 23 May 2003 is affirmed.
60.N2004/1001: The reviewable decision dated 2 August 2004 is set aside. In substitution for the decision set aside, the Tribunal finds that on and from 22 March 2004, Ms Johnson was entitled to payment of compensation in respect of her right shoulder.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Dr.M.E.C.Thorpe
Signed: Neil Glaser
AssociateDates of Hearing 4 March 2004, 5 March 2004
12 August 2004, 13 August 2004
Date of Decision 5 November 2004
Counsel for the Applicant Mr John Harris
Solicitor for the Applicant Ms Jenny Fraser,
Adams & Partners Lawyers
Counsel for the Respondent Mr Brian Skinner
Solicitor for the Respondent Mr S Assneton-Chen,
Graham Jones Lawyers
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