Jordan and Australian Postal Corporation

[2007] AATA 1401

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2007] AATA 1401

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2006/246

DIVISION		)
Re		MAREE JORDAN

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal  Senior Member Mrs R Hunt
 Member Dr J D Campbell

Date 6 June 2007

Place Sydney

Decision The decision under review is affirmed.

…........... [Sgd] ................

R Hunt

Presiding Member

CATCHWORDS

WORKERS’ COMPENSATION – benefits and entitlements – permanent impairment claim - accepted injury - partial tear supraspinatus tendon right shoulder – mobility improved by surgery – less than 10% permanent impairment as result of accepted injury – decision affirmed.

Safety Rehabilitation and Compensation Act 1988 ss 24(7), 27, 29.

REASONS FOR DECISION

SUMMARY

1.      Mrs Maree Jordan, the applicant, went to work for Australia Post as usual, on 3 January 2001, but left later that day and never went back to her job as a postal delivery officer. Mrs Jordan had previously injured her right shoulder at work and received compensation payments for a period. The claim before us involves review of her rejected claim that she should receive compensation for permanent impairment to her right shoulder. We have decided to affirm the reviewable decision.

BACKGROUND

2.      Mrs Jordan was a postal delivery officer with Australia Post, the respondent, when she injured her shoulder. She is challenging a decision of Australia Post to deny her compensation for 10% permanent impairment.  The respondent determined on 9 February 2006 there was no work related permanent impairment. This determination was affirmed after reconsideration on 27 February 2006. This is the reviewable decision we are reviewing.

3.      Documents put before us by Australia Post show that, on 7 April 1993, Mrs Jordan applied for a position with that organization and that, on 9 June 1993, a Dr Keen considered she met the medical fitness standard for employment. Just over 14 months later, on 22 August 1994, Mrs Jordan submitted an incident report and claimed compensation in relation to her “right arm, elbow, lower arm, joints ring and little fingers”. In the claim form, Mrs Jordan stated that, about five weeks earlier, she had started on a new postal delivery beat. This meant she was required to sort larger quantities of mail and to reach higher sections of the sorting frame. After reaching for the higher part of the frame, she experienced pain in her right arm. Pain subsequently spread to other areas of her arm. On 30 August 1994, the respondent accepted liability for “strained muscle (R) arm”.

4.      Further incident reports and medical investigations and reports followed. On 19 July 1996, the applicant lodged an incident report in relation to her right arm and shoulder after sorting and delivering mail. On 9 December 1996, she submitted a claim for compensation and rehabilitation for her injured right shoulder. On 10 January 1997, the respondent accepted liability pursuant to s14 of the Act for “partial tear supraspinatus tendon right shoulder as a result of an incident on 19 July 1996”.  Incapacity payments were approved for the period 18 September 1996 to 1 October 1996 pursuant to s19 of the Act.

ISSUES

5.      The only issue before the Tribunal is whether the applicant suffers 10 per cent permanent impairment under table 9.1 of the Comcare guide to the degree of permanent impairment that applied at the date of her injury.  The claim involves the degree to which she does or does not suffer a loss of normal range of movement of the right shoulder.  In this connection, the main questions are:

·     Does the applicant have a compensable right shoulder injury which has resulted in a permanent impairment?

·     Is there a likelihood of improvement in the applicant's compensable right shoulder injury?

·     Has the applicant undertaken all reasonable rehabilitative treatment for any impairment of a compensable right shoulder injury?

·     If there is a permanent impairment of a compensable right shoulder injury, does it satisfy a 10 per cent threshold under the Comcare guide to the degree of permanent impairment?

· If the applicant meets the threshold, she is entitled to compensation pursuant to ss 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act).

consideration of evidence

6.      Counsel for the applicant explained at the outset that the applicant’s case was that pain caused her to be reluctant to move her injured shoulder beyond the point where it caused her pain. He argued that pain being the reason for the loss of function of a joint was sufficient under table 9.1 for loss of function in accordance with the table.  Counsel suggested the truth of this was a matter for the tribunal to determine when assessing the applicant’s credibility. Counsel further enlarged by arguing that, when considering the tests undertaken by doctors who had examined Mrs Jordan, we should examine whether her pain caused her not to lift her arm over her head and whether her pain produced a loss of function to the extent she was not able to lift the arm over her head. Counsel submitted that the pain, nevertheless, stemmed from a musculo-skeletal injury.

7.      We were asked to assess Mrs Jordan’s claim under table 9.1 as it applied at the date of Mrs Jordan’s injury and claim. Table 9.1, first edition, which was published in 1989 and applied until it was replaced in 2005, covers impairment of the upper extremity. The introduction reads: 

These tables are intended to be used to assess impairment arising from specific joint lesions or amputations….

Assessment is in accordance with the range of movement. X-rays should not be taken solely for assessment purposes

8.      It is the applicant’s case that, in accordance with the introduction to table 9.1, the shoulder functions “but the use of the limb is restricted for other reasons, eg soft tissue injury, nerve injury, bony injury not involving joints, Table 9.4 or Table 9.5 should be used – not both.” Counsel for the applicant pointed out the introduction goes on to say:

These tables can be used to assess the impairment of overall limb function from any cause.

9.      The percentage description of levels of impairment under the table follows. Mrs Jordan claims that she suffers 10% impairment in respect to her right shoulder. Under table 9.1 this equates to a loss of less than half normal range of movement of the shoulder.

10.     Mrs Jordan gave oral evidence that she agreed with the respondent’s records that indicated she commenced work with them in 1993. Mrs Jordan told us she obtained her HSC in 1967 and had worked part time at various jobs from the age of 15. Before her employment with Australia Post as a postal delivery officer, she worked at the Teacher’s Federation in a clerical position. She ceased because she had children. Apart from when the children were babies, Mrs Jordan said she always worked part time, taking jobs in between school hours.  Australia Post was her first full time job, starting when the children were teenagers.

11.     Mrs Jordan said she was, for her first year with Australia Post, “on the trucks” until a delivery position became available.  From 1994 through to 3 January 2001, when she last worked, Mrs Jordan was a postal delivery officer. Mrs Jordan told us that, generally “you’d sort mail till about 8.30, 9, and then you’d go out on the beat and deliver it”.  Mrs Jordan had a walking beat in The Rocks and in the city and she said she loved it.

12.     After the incident on 19 July 1996, Mrs Jordan gave evidence she saw Dr Healy, who first diagnosed the problem with her shoulder. Dr Thomas was her GP at the time she left work. Her specialists, to whom her GP referred her, included Dr Goldberg. Dr Goldberg performed surgery nearly two years ago. Mrs Jordan agreed that documents before us included the operation report by Dr Jeremy Goldberg showing she had surgery on 4 May 2004.

13.     When asked why she had not returned to work after 3 January 2001, Mrs Jordan said “I had … a lot of stress at work, especially over the Christmas period, a lot of pain, and I obviously wasn’t coping with it.  I had a myocardial infarction.  My heart was damaged and I guess I fell to pieces, so to speak“. Mrs Jordan said she was not making any compensation claim for stress or for her heart condition.

14.       Mrs Jordan agreed she had submitted a claim for compensation for permanent impairment before the May 2004 surgery took place. Mrs Jordan gave evidence to the effect that she had been resisting surgery but rang Dr Goldberg to arrange for the surgery when she experienced excruciating pain after “mucking about” in the pool with her nephew.  Mrs Jordan told us her arm still hurt constantly despite the surgery.  There was not a morning of her life when she woke up and did not have pain.

15.     When asked to demonstrate the restriction to movement in her right arm, Mrs Jordan said she found if difficult to show us as it hurt. She then gave oral evidence as to the level of her pain. She said “at best it’s an ache”.  She described the pain, after taking tablets, as “like I’ve got a sore tooth or something but right now it’s a sting”.  She added: “I mean more than an ache.  It’s pain like, I guess, when you’re having childbirth and you feel pain there and there’s that redness and stinging and it’s real pain”.

16.     When asked about activities of daily living and lifestyle, and whether she ever lifted her arm above her head, the applicant replied to the effect that she had done so on an odd occasion but 96 per cent of the time she did not lift the arm. She added: “I avoid it.  It hurts.” As to the remaining 4 per cent of the time, the applicant told us: “I don’t know, I guess out of necessity or something, life is not worth living, I don’t know.”  About getting things out of cupboards and whether she reached up to do so, Mrs Jordan said: “The odd occasion I have been known to but my husband is six foot five.” About hanging clothes on the line, she said “I don’t to that.  My husband does most of it.  As I said I have done it on the odd occasion ….The more I do the more it hurts.”  Later, Mrs Jordan added that what was preventing her from moving her shoulder was the thought of pain and also “I think there is a mechanical reason because I can’t lift it beyond a certain point.”

17.     As to her range in movement and whether it now was any different to what it was immediately before surgery in 2004, Mrs Jordan told us it was about the same. Mrs Jordan indicated her forearm and said she had a strange feeling in it but it wasn’t pain.  It was like a numbing. Ms Jordan went on to say numbing means you can’t feel it but it was like a really strange sensation. It still “felt funny” for many months after the surgery.

18.     Counsel for the respondent reminded Ms Jordan her surgery took place on 4 May 2004 and that the doctor saw her at his rooms on 5 August 2004, three months later. Mrs Jordan accepted these dates were correct when asked to comment on the report of Dr Goldberg dated 5 August 2004, some three months after the surgery. In the report, Dr Goldberg states: “(H)er movements today are extremely good and near full which is far better that preoperatively”, Mrs Jordan said she agreed her movements were better at that stage. She explained that she was going through an intense program the doctor suggested. She thought she attended once a week for a month and maybe once every second week for a couple of months and then once a month and that she also had steroid injections.  She also took anti-inflammatory medication called “Vioxx”. She said she “guessed with the anti-inflammatories and the needles” she was in less pain.  She further said she “guessed” that helped so she could lift her arm.  She gave additional evidence that she “guessed” it would have been a gradual process. Mrs Jordan was unable to say precisely when her mobility deteriorated.

19.     When asked if she could recall what range of motion she had in her shoulder the first time she went to Dr Goldberg’s rooms for examination after the operation, Ms Jordan retorted: “I’m not a doctor but the report said I had good movement.  I was more interested in the pain.  I wasn’t working at that stage.” Responding to a question about Dr Goldberg’s record that he saw her again in December of 2004 and noted her complaint about shoulder pain, Mrs Jordan had trouble recalling what occurred at this second review of the effect of the surgery. She was somewhat confused but said she followed Dr Goldberg’s recommendation and had cortisone injections to get the inflammation down. She said she also agreed to take some “anti-inflammatories”. From memory, she thought she took one in the morning and one at night.

20.     As to the reference by Dr Goldberg in his report on 10 March 2005 that he had given the applicant cortisone injections on 17 January, 24 January, 31 January, 7 February, 14 February, 21 February, 7 March and he thought she would need some more, Mrs Jordan gave evidence that she underwent “a pretty intense course”. When asked how those injections affected her in January to March 2005, Mrs Jordan could not remember. She said: “… in general terms.  At the time I think they relieved the pain for – in minimal amounts of times … they did take the pain away, it was only very temporary.  It was within a day or so, two days, maybe a week max”. When asked, “Did you ever get two weeks of relief from an injection?” the applicant replied “I don’t think I did”.

21.     The applicant recalled that Dr Maxwell examined her on 20 April 2006. When asked if she was feeling better or worse than she normally felt, at the time of this examination, Mrs Jordan said she felt “the same” and then said “probably a little bit more pain than normal”. The applicant gave evidence that, at this consultation, she made the movements Dr Maxwell asked of her until towards the end of the examination. Eventually, she told us, she declined to try a movement he requested, saying to him “I am not inclined to do that, I am in a lot of pain”. She thought the doctor’s examination was unduly lengthy.

22.     As well, Mrs Jordan recalled seeing Dr Lorraine Jones. When read a passage from the doctor’s report, setting out options Mrs Jordan rejected at the time, Mrs Jordan said that was true. Mrs Jordan added that she was on light duties then and had seen Dr Goldberg. The passage set out:

We discussed options such as physiotherapy which she told me did not help. Other options discussed were changing her hours of duty or altering her duties.  She is very happy with her job and does not want to consider this.

23.     As to household tasks and activities of daily living, the applicant gave evidence that she did the minimum necessary. She gave evidence to the effect that she was not a keen housekeeper but had previously maintained the home a lot better than she did now. She said her coping skills were better. Mrs Jordan said:

I vacuumed, I did the floors, I did the gardening  - well, I helped do the gardening, I painted, I had great – we used to do up the house a lot and I used to … help my husband do things all the time. … I was fit, there was nothing I couldn’t do.

24.     The applicant gave further evidence that, since the surgery, she did not vacuum a lot. Her husband did most of it and he became very frustrated with her because she could do it but she suffered later. She told us that if she knew someone was going to pop in and the house was like a pigsty, she would do it. She did not vacuum the house like other people “every week or whenever”. Mrs Jordan said:

I can’t paint, I can’t do the gardening, I can’t do anything – even the simplest things for any length of time I can’t keep it up on a regular basis like most people would do every day because I would suffer for it.

25.     When asked to clarify what she could not do, Mrs Jordan continued to relate what she did not do, such as outside things, gardening, and painting, but qualified her evidence about her ability to perform activities by adding phrases such as “I would suffer for it” or “if necessary”. The applicant said she did still cook and prepared meals most of the time. She said of making beds, “no, I don’t make beds but that’s probably not – I just don’t – no, I don’t make beds”. Of going shopping, she said: “Out of necessity only I do.”  Of driving a car, Mrs Jordan said: “I have got one.  I’m driving it less and less but I have got one.”

26.     When asked how she spent her day, Mrs Jordan told us she got up at about 6.30 – 7. She lay down again in the lounge after getting a coffee and her dog brought her the newspaper which she read for a couple of hours or so. Her daughter normally telephoned and they talked.  She added her husband is sometimes home a lot because he does shift work. He was home at the time the applicant gave evidence because of a health problem. She said they watch TV sometimes. Their daughter comes over sometimes. The applicant makes herself lunch at home, “usually a tin of baked beans or something” and, after lunch watches “the honeymooners at 1.30 and I watch TV till 2.30”. After that, she said she sometimes takes the dogs down to a nearby beach, sometimes with her husband.  Mrs Jordan said she does not walk the dogs on a lead but puts them in the car and drives down the hill and then lets them off without a lead on the golf course and on the beach at Little Bay. 

27.     When she comes home, Mrs Jordan said, she probably has a drink and gets dinner, on some nights. She normally goes to bed by 9 o’clock or it can be 11 o’clock. Mrs Jordan gave evidence that she used to be a good sleeper. Now, she sometimes wakes in the middle of the night and, once awake, experiences pain.  Then she will sit and watch TV, sometimes for an hour or two.  Sometimes she takes tablets before going back to sleep.  Waking up probably happens three or four nights a week

28.     The applicant gave evidence that she takes medication for high blood pressure. For pain, she said she takes Panadeine and Panadol. She buys them over the counter. She had tried “liquid things but they don’t do anything”.  Mrs Jordan mentioned Brufen and Advil. She added that, on average, she took two Panadeine a day but not every day. As for Panadol, Mrs Jordan thought she took four or five a week, or just the odd one. She said she sometimes takes some medications prescribed for her husband. She told us her shoulder injury had caused a change in her sexual relationship with her husband.

29.     When referred to an observation recorded by Dr Jones in writing to Dr Thomas in September 1998 that she had “a good range of movement, but there was pain with flexion”, Mrs Jordan replied she did not like the pain but it was either live with it or give up her job.

30.     In the last 12 months, the applicant said she had not seen her doctor about her shoulder a lot. They discussed or changed her medication and her shoulder was mentioned in the course of a visit sometimes. As for exercise, the applicant gave evidence to the effect she did very little. She had tried the swimming pool where there was an aqua class of gentle exercises but she had not kept it up.  Mrs Jordan clarified that, when she took the dogs for exercise, she sat on the beach while the dogs played and she did not walk with them.

31.     Finally, Mrs Jordan told us she felt she had an excessive workload when she had the shoulder problem and got no understanding or help from Australia Post. Then she had a heart attack and never went back. Mrs Jordan told us she took drugs for a heart condition for quite a while but later “went off them”.  She added that, apart from the management aspect, it was a good job. In response to a question about whether she had ever made a claim for compensation for her heart attack or stress condition with Australia Post, Mrs Jordan said she saw someone and that’s why reports were written. She said Dr Freeman wrote the reports but she had not made a claim.

32.     When asked, if at any stage, she had wished to see a psychiatrist, Mrs Jordan gave evidence she had asked a few times and Dr Thomas said he didn’t think it necessary. She gave further evidence to the effect that she was on a waiting list. She went on to say that Dr Thomas had prescribed her anti depressant drugs but she could not remember when she started to take them or if it was before she left Australia Post.

33.     In answering questions about the pain level she experienced in her shoulder, on a scale of 1 to 10, Mrs Jordan gave evidence to the effect that, compared to heart attack or childbirth, it was about 4 or 5, most of the time. When she attempted some activities, the pain went up to about 6.  She explained that, “if I was to do something all day it would go up a lot more I’m sure”.

MEDICAL EVIDENCE

34.     Further records before us show that on 19 September 1996, Dr Bass (Radiologist) diagnosed the applicant as suffering from a partial tear of the right supraspinatus tendon. A history of medical examinations and various doctors’ reports and notes is set out in the applicant’s facts and contentions. We have not repeated all of these in our reasons. Among other correspondence about the applicant, on 20 December 1996, Dr Goldberg (orthopaedic surgeon) wrote to Dr Healy.  Upon examination, Dr Goldberg had observed tenderness about the rotator cuff, a restriction of movement and a positive impingement sign.

35.     On 29 January 1997, Dr Joan Chen, consultant physician in occupational medicine, considered suitable work included clerical duties and administrative duties as well as restricted mail sorting reaching overhead with the left arm, restricted mail sorting reaching overhead and other limits. On 16 October 1998, Dr Goldberg wrote to Dr Thomas of the applicant that “She has failed the full gamut of conservative management”. Dr Jones (consultant in rehabilitation medicine) on 13 July 1998 considered Mrs Jordan might need to be redeployed and wrote to Dr Thomas on 27 July 1998 that she had not improved with physiotherapy.    

36.     Dr Thomas on 21 January 1998 wrote that the applicant had chronic right shoulder pain from the 1996 injury. Dr Healey, general practitioner, sent the applicant to Dr Lorraine Jones, a rehabilitation specialist. The period of light duties certified by Dr Goldberg ended in February 1997. That is, the light duty period was over before she saw Dr Jones.

37.     Dr Jones and Dr Thomas corresponded again on 3 August 1998 and Dr Thomas opined at that time that her situation was going to be chronic. Dr Griffith, consultant surgeon, on 15 May 2001, thought Mrs Jordan suffered 10% impairment according to table 9.1 at that time. Dr Aileen Liu saw her on 7 June 2001 and noted physiotherapy was to no avail.  

38.     On 18 January 2002, Dr David Maxwell, orthopaedic and spinal surgeon, observed restricted movement in the right shoulder. In the meantime, Dr Goldberg performed surgery in May 2004 and observed a marked improvement when checking the result of the operation later in 2004. Dr Maxwell saw Mrs Jordan again in 2006 and produced a further report discussed later in our reasons.

Oral evidence and report of Dr Richard A Evans dated 14 February 2006

39.     Dr Richard Evans saw Mrs Jordan and produced a report dated 14 February 2006. Dr Evans gave oral evidence by telephone as well. At the end of the first paragraph of his report, under the heading “diagnosis”, Dr Evans noted Mrs Jordan “had several more injections with only temporary benefits.  She continues to experience pain and impairment movement to the left shoulder.” Dr Evans agreed that this was a typographical error and should be “right shoulder”.  We have set out, in summary, Dr Evans’s account of the applicant’s history, treatment, prognosis and level of permanent impairment:

Right shoulder pain:

• Felt anteriorly in the shoulder, radiating a little to the adjacent anterior aspect of the upper arm, and also a little to the adjacent area of the anterior chest.
• Pain is constant, hurting when she sits resting, and often waking her at night
• It hurts if she elevates the arm at the shoulder. If she carries a heavy supermarket shopping bag in the right hand, even with her arm by her side, the shoulder will ache later

Treatment:

• She occasionally sees her local doctor, Dr Thomas, about her shoulder and takes “over the counter” tablets for her shoulder. She does not have physiotherapy or chiropractic treatment, does not do exercises for her shoulder, does not use a TENS machine, sometimes applies hot and cold packs to the shoulder

Right shoulder:

• There was some tiny arthroscopy scars over the shoulder
• Movements of the shoulder were reduced: abduction 100o (normal 180o), adduction 20o (normal 50o), forward elevation 100o (normal 180o), backward elevation 30o (normal 50o), external rotation 60o (normal 90o), internal rotation 20o (normal 90o).
• Glenohumeral movement and scapulothoracic rhythm were normal.
• Pain with resisted abduction, and an impingement sign was positive.
• Minimal wasting of the shoulder muscles, no swelling of the shoulder, and no crepitus (grating) in the shoulder on movement.
• Tenderness over the longhead of biceps tendon, but not otherwise over or around the shoulder

X-Rays:

• X-rays of right shoulder from 4 September 1996 showed a small opacity in the region of the rotator cuff tendons.
• X-rays taken on 23 October 2003 showed the area of calcification to be moderately larger than in the 1996 x-rays
• Ultrasound taken 19 September 1996 showed a partial tear of the supraspinatus tendon, but with no bursal bunching
• Ultrasound taken 14 October 1998 showed much calcification in the prosterior part of the supraspinatus tendon. It did not observe a tear of the tendon. It noted significant impingement of abduction. It also noted some bursal distension on abduction in the left shoulder.
• Ultrasound taken 10 May 2001 showed a 9mm focus of calcification in the mid/proterior part of the supraspinatus tendon, but no tear was demonstrated. There was again tendon bunching on abduction demonstrating impingement.
• MRI scan on 10 March 1997 showed a gap in the supraspinatus tendon anterolaterally, suggesting an interval tear with some involevent of the anterolateral margin of the supraspinatus. There also appeared to be ‘focal separation of the mid anterior labrum from the glenoid’.

Diagnosis:

• In 1997, and as a result of overuse of her right arm, Mrs Jordan noted the onset of pain in her right shoulder. She saw her local doctor and was referred to a “shoulder orthopaedist” during that year. She was treated with tablets, physiotherapy and injections, but the pain tended to worsen.
• She continued to work full time and on normal duties until 2001 when she suffered a heart attack and ceased work.
• It would have been exceedingly difficult for her to have carried out the work she was doing with the demonstrated damage to the right shoulder
• The shoulder pain did not improve when she ceased work, and she underwent arthroscopic surgery in 2004. This would have included a decompression procedure (acromioplasty), perhaps debridement or repair of rotator cuff tear, and possibly repair of the glenoid labrum. The operation was no help and made her a bit worse.
• She had several more injections, with only temporary benefit.
• She continues to experience pain and impaired movement in the shoulder.
• The exact cause of the persisting shoulder paid is uncertain, but it is not surprising.
• It could arise from the damaged rotator cuff, from associated synovitis, from subacromial/subdeltoid bursitis, or from the damage to the glenoid labrum (the cartilaginous rim of the socket of the “ball and socket” shoulder joint)

Fitness:

• Not fit for her previous job of postal delivery officer but would be fit for light work, not requiring her to work with her right arm elevated above low chest height or to carry out vigorous or repetitive use of the right arm

Disability:

• The permanent whole person impairment of Mrs Jordan’s right upper extremity is 10% (Table 9.1). It has occurred as a result of the nature and conditions of her work with Australia Post between 1997 and 2001.
• Maximum medical improvement has occurred and the above disability is substantially a result of Mrs Jordan’s employment with Australia Post.

40.     Dr Evans told us, when giving oral evidence, that he conducted movement tests using an instrument. This method involved a test where the movements were voluntarily and measured. The movements were active movements and they were measured with a goniometer, which Dr Evans used for measuring movement angles. In reference to table 9.1 and to his goniometer testing on page 2 of the report, his evidence was that he formed the opinion that the applicant suffered from loss of less than half all ranging movements of the shoulder, which would satisfy 10 per cent under table 9.1 of the guide. He explained he had given the normal ranges towards the bottom of page 2 of the report, saying “abduction 100 normal 180, that’s a little over half, at action 20, normal 50, that’s less than half, toward elevation 100 normal, 180, that’s a bit over half, backward elevation 30, normal 50, that’s a bit over half, external rotation 60 normal 90, internal rotation 20, normal 90, that’s much less than half.”

41.     Dr Evans said he formed an opinion as to why the applicant had those restrictions. He thought it was because of pain and damage to the rotator cuff of the shoulder associated with inflammation of and bunching of the tendon when she lifted her arm. In his opinion, that was the reason she couldn’t; lift her arm and it was shown on the ultrasounds. When told that Mrs Jordan had described a feeling of “blocking”, when she moved her arm outright almost at shoulder height, Dr Evans said that would be the bunching of the tendons that he referred to.

42.     He added that, as the arm is elevated, the tendon becomes shorter and its cross-section is increased and it becomes blocked under the acromion and the coracoid-acromion ligaments and bone at the tip of the shoulder.  It gets caught there. The ultrasounds confirmed Mrs Jordan did have a positive impingement sign as well that was consistent with blocking. He agreed to a question suggesting that the ultrasound was objective evidence that this blocking meant she wasn’t able to lift her arm above shoulder height. He added there were three ultrasounds, 19 September 1996, 14 October 1998 and 10 May 2001.

43.     Dr Evans gave evidence he did not have the benefit of any ultrasounds performed after the operation that was undertaken in May 2004. He thought the procedures undertaken in May 2004 may have had some effect upon the physical structures that he had talked about by reference to the ultrasounds. He added that, quite often these operations, which were decompressive procedures, were very helpful and often improved the movement a good deal. He thought it was obvious that Mrs Jordan did not benefit from the operation, which does sometimes happen. He thought her problem with the elevation was not just physical blocking but inflammation of the bursa and the irritation of the rotator cuff. He said all these things hurt people.

44.     Dr Evans told us as well as having no recent ultrasounds, he did not have the surgeon’s report. He described the surgical procedure that Mrs Jordan underwent in his diagnosis paragraph:

She underwent arthroscopic surgery in 2004.  This would have included a decompression procedure acromioplasty or repair of the rotator cuff tear and possibly repair of the glenoid labrum.

45.     He gave evidence he knew when the operation roughly was performed, it was an arthroscopic surgery and the information from the applicant that it didn’t help and that she had injections from Dr Goldberg after the operation implying again that the result wasn’t a very good one. He understood that she was suffering from depression and was having medications for that.  He thought she was quite anxious at interview and talked a lot about emotional effects of the shoulder pain. Nevertheless, he believed he had no reason to think that she was cheating when he tested her. He acknowledged her depression and anxiety might make her perception of pain perhaps more acute but finding this was speculative and it was impossible to know. He had no reason to think that she was holding back with movements because of depression.

Oral evidence and report of Dr David Maxwell dated 20 April 2006

46.     Dr Maxwell saw Mrs Jordan again and, in his report dated 20 April 2006, Dr Maxwell noted that the applicant described pain in front of the shoulder, that she stated any movement aggravated pain and that she woke at night when she rolled on her shoulder. He opined that she still suffered 10% impairment according to table 9.1 at that time as she had loss of less than half the normal range of movement of her shoulder. However, the doctor went on to state there was some doubt in his mind that the applicant was exerting maximum voluntary effort. In this connection, he noted “there was no scapulothoracic movement attempted on abduction and flexion and range of movement Dr Goldberg stated that he found after the operation was full”. Dr Maxwell added at the conclusion of his report that he considered:

… she has a degenerative condition of calcification of the rotator cuff which may have been aggravated in the course of her work but her symptoms are now due to the underlying condition as she has not worked since 2001. any impairment is also related to the underlying condition.

47.     Dr Maxwell provided the following information in his 2006 report (summarised below) before reaching his conclusions:

Past Medical History:

• History of cardiac episode on 3/11/2001
• She said at the time she was very stressed and it was the opinion of Dr Freeman, the Cardiologist, that she had “some kind of vascular spasm which had caused some temporary damage to her heart”. No evidence of obstruction to the coronary arteries.
• Arthroscopic procedure performed on her right shoulder by Dr Goldberg on 4/5/2004 to remove a small area of calcification from the supraspinatus tendon which was causing impingement

Present medications:

• Livial which was a hormone replacement medication
• Coversyl for hypertension
• Aspirin if she gets anxious as she believes this may be of benefit to her heart
• Nurofen Plus or Panadol for discomfort in her right shoulder
• Anti-depressant but she could not remember the name

History of present illness:

• Spontaneously developed pain in her right shoulder in 1994. The pain at this stage settled down spontaneously
• 1996 – work load was heavy. She attended her GP, Dr Hayley of Malabar, on the 19/7/1996 who ordered an x-ray of her shoulder which revealed calcific tendonitis of the rotator cuff. She was referred to Dr Goldberg and had 2 Cortisone injections. She improved at that stage.
• 2000: pain became worse. She had time off work. She had a ‘heart attack’ and has not returned to work. She returned to Dr Goldberg after having a further ultrasound in May 2001. 23/10/2003 she again seen Dr Goldberg who felt an operation may help.
• 4/5/2004 she underwent a right shoulder arthroscopy and Dr Goldberg removed a 1cm area of calcification within the supraspinatus tendon.
• Dr Goldberg reported on the 2/5/05 that her right shoulder movements had returned to normal
• 7/10/2004 – Dr Goldberg ordered a further x-ray of her right shoulder, which showed that most of the calcification had been excised. She then had a series of Cortisone injections into the region of the biceps tendon sheath.
• She had 7 injections from January to March 2005. Mrs Jordan stated that the injections would help at the time she had them.
• Mrs Jordan feels that the symptoms in her shoulder are the same as they were pre-operatively.

Present symptoms:

• Mrs Jordan describes all of her pain as being in the front of the shoulder and that any movement aggravates her pain. She wakes up at night when she rolls on her shoulder.

On Examination:

• Anxious woman who is somewhat pain focussed.
• No muscle wasting of the muscles of her right shoulder girdle
• Her right dominant arm measured at 29cm and left at 27.6. Her right forearm measured at 26.2cm and left at 25cm. These measurements are what one would expect in a right hand dominant person using their right arm normally.
• Range of movement:
• Abduction: 90o (there was no scapular thoracic movement attempted this all glenohumeral); Flexion 80o; external rotation 85o; internal rotation 90o; extension 18o; adduction 0o (with a complaint of pain)
• There was a lack of scapulothoracic movement during flexion and abduction of her shoulder which suggests lack of voluntary effort. The range of glenohumeral movement was relatively normal.
• No evidence of neurological compromise

Diagnosis and opinion:

• “When I tested her range of movements there was virtually no scapulothoracic movement on abduction and flexion indicating that her movement was glenohumeral. This is unusual in patients with rotator cuff pathology as normally the glenohumeral movement is the most affected. I therefore consider it is doubtful that she was exerting maximum voluntary effort during my physical examination. She also seemed emotionally labile and had a hyperactive paid response”
• Table 9.1 she has 10% WPI as she has loss of less than half the normal range of movement in her shoulder.
• There was some doubt in Dr Maxwell’s mind that she was exerting maximum voluntary effort as there was no scapulorthoracic movement attempted on abduction and flexion and the range of movement Dr Goldberg stated that he found after the operation was full.
• She had 0% WPI according to Table 9.4
• Dr Maxwell did not consider that the impairment reduced by further medical or rehabilitative treatment
• It is not likely that the impairment will deteriorate significantly
• In response to the question ‘Has the injury resulted in any consequent impairment of the right shoulder?’ Dr Maxwell said: “The WPI does relate to her right shoulder. As previously outlined I do not consider she has suffered a specific work related injury. I consider that she has a degenerative condition of calcification of the rotator cuff which may have been aggravated in the course of her work but her symptoms are now due to the underlying condition as she has not worked since 2001. Any impairment is also related to the underlying condition”

As to Mrs Jordan’s non-economic loss questionnaire answers, Dr Maxwell noted:

Pain:

• She ticked 4
• The amount of pain she is experiencing is somewhat greater than one would normally experience with her condition.
• Acute calcific tendonitis of the supraspinatus tendon can be acutely painful but chronic calcification is not normally extremely painful
• Removal of the calcium usually results in some reduction of the pain levels and the pain is normally only experienced with overhead lifting.
• It would appear that the amount of pain she is experiencing is excessive
• The response is considered to be somewhat exaggerated

Suffering:

• She ticked 5.
• She is obviously suffering emotionally.
• I consider her reaction to her condition has been somewhat abnormal.
• The degree of suffering she is describing is certainly greater than what would be expected given her condition

Mobility:

• She ticked 2
• Refers to the ability to get around rather than the mobility of her shoulder.
• The pain she is allegedly experiencing is greater than one would expect.

Recreational and leisure activities:

• She has ticked 3
• She says she can do breast stroke intermittently
• She states that any physical activity aggravates the pain in her right shoulder but she has no muscle wasting of the right are suggesting that she is not using her right dominant arm normally

Other loss:

• She ticked 3
• She states that she is unemployable

• He did not consider any reduction in her life expectancy was likely

Dr Goldberg’s reports

48.     The period of light duties certified by Dr Goldberg ended in February 1997. In 1998, when Dr Thomas sent Mrs Jordan back to se Dr Goldberg, his letter to Dr Goldberg read, in part:

… Maree Jordan continues to have right shoulder pain, now chronic.  She has seen Lorraine Jones over the last six months.  [Dr Jones] suggested three options; live with it, change jobs - she loves her job – consider surgery if you see it necessary.  So we would like your opinion.

49.     On 2 May 2004, Dr Goldberg performed a right shoulder arthroscopy. He noted that under anaesthetic, the applicant had a stable shoulder with full movement. Dr Goldberg recorded in his notes shortly before Christmas 2004 that “Maree Jordan rang me today complaining of increasing shoulder pain”. He later noted that she agreed to have a cortisone injection on 23 December 2004. He recorded on 10 March 2005 that he had given the applicant injections on 17 January, 24 January, 31 January, 7 February, 14 February, 21 February, and 7 March, and he thought she would need some more. On 2 May 2005, when writing to Dr Thomas, Dr Goldberg noted that although the applicant had done reasonably well from the surgery, she continued to be troubled by pain with activity and over-use.

findings

50.     In assessing the applicant’s credibility when she stated that pain is so severe she is unable to lift her arm over her head, we have taken into account the medical evidence before us as well as her demeanour when giving evidence. We observed an extreme reluctance to raise the arm and to make efforts to use the shoulder. This made it very difficult to form a judgment about whether Mrs Jordan’s reluctance was an over reaction and exaggeration of pain or a reasonable reaction. We also took note that Dr Goldberg found a complete range of movement shortly after the successful surgery that he performed in May 2004. He continued to administer cortisone because Mrs Jordan complained of pain but he did not record lack of flexion. He noted that she was coping with ongoing pain when he saw her over the three months before his short report to Dr Thomas on 2 May 2005. He also noted that her movements had returned to normal at this time.

51.     Dr Maxwell found 10% impairment as at 20 April 2006 and attributed this to a degenerative condition of calcification of the rotator cuff aggravated at work. He suspected Mrs Jordan was not exerting maximum voluntary effort. Mrs Jordan explained this to us as reluctance to experience pain on exertion. Finally, Dr Maxwell concluded that her symptoms were now due to the underlying condition as she had not worked for five years.

52.     Dr Evans conceded that the surgery Mrs Jordan underwent normally relieved symptoms such as hers but offered an explanation for her continuing restricted movements. On the other hand, Dr Evans had no recent ultrasounds and no precise details of the surgery when forming his opinion. The value of his opinion is somewhat diminished when one looks at the limited post operative information he had available about Mrs Jordan.  His explanation for her continuing restricted movements was that it may be she still had a damaged bursa and very likely damaged tendons as well. He gave evidence that he did not have any up-to-date investigations that showed the bursa or the tendons, but that even if there were no demonstrable impingement and the tendon itself had been damaged it can still hurt as it slides under the acromion. While we accept that Dr Evans thought there may be other explanations for Mrs Jordan’s continuing limited shoulder mobility, these are speculative when compared to Dr Goldberg’s findings that Mrs Jordan showed improvement and good flexion after the surgery.

53.     We observed Mrs Jordan’s reluctance to exert any effort to raise her arm when appearing before us. We also found her description of the pain she was experiencing difficult to comprehend as she described it variously as a sting and an ache and compared it to a heart attack and childbirth. Her description of pain struck us as excessive when compared to extreme events such as childbirth and heart attack.  

54.     We have no doubt that Mrs Jordan does experience some pain in her shoulder and that overuse will cause her discomfort. However, on her own evidence, she has little idea of how bad her pain might become as she rarely raises the damaged arm or exercises the shoulder. She does few household or other activities. Her evidence was that she does very little at all. She relies on her husband and daughter and does not over exert herself. She does not test the effect of use on her shoulder.

55.     On balance, we prefer the assessment of Dr Maxwell that Mrs Jordan does experience 10% impairment, but that this is not simply attributable to a work related injury. She had full movement restored to the shoulder by the surgery in 2004 but has not maintained any improvement. As she has not worked since 2001, we favour Dr Maxwell’s assessment that this suggests a degenerative condition rather than a continuing effect from the work injury or aggravation. We find further reassurance in taking this view from Dr Evans’s oral evidence that the surgery he understood to have been performed normally would provide relief. Dr Evans’s opinion was coloured by his knowledge being confined to what he told us at the hearing, that is, he knew the applicant had arthroscopic surgery and he had the information from her that it didn’t help and that she had injections. He thought the injections from Dr Goldberg after the operation implied that the result wasn’t a very good one. By comparison, this was not what Dr Goldberg believed. Dr Goldberg was pleased with the result of the surgery and observed improved range of movement. Unfortunately, Dr Evans did not have the benefit of Dr Goldberg’s reports when forming his own opinion.

56. We find that Mrs Jordan’s injury did benefit from the surgery in 2004 and that her impairment, while possibly being in the order of 10%, must be discounted when assessing the degree of impairment for compensation because it is partly attributable to a degenerative condition of calcification. It is necessary for the injury to result in 10% impairment before compensation is payable. See s 24(7).

57.     It follows that we will affirm the decision under review.

decision

58.     The decision under review is affirmed.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Hunt

Signed:         [Talaishia Collis]
  Associate

Date/s of Hearing  31 January 2007
  1 February 2007
  2 April 2007
Date of Decision  6 June 2007
Counsel for the Applicant         Mr D Richards
Solicitor for the Applicant          Slater & Gordon Lawyers
Counsel for the Respondent     Miss R Henderson
Solicitor for the Respondent     Graham Jones Lawyers