Kym Vasios and Australian Postal Corporation
[2015] AATA 317
•13 May 2015
[2015] AATA 317
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/3065
Re
Kym Vasios
APPLICANT
And
Australian Postal Corporation
RESPONDENT
Decision
Tribunal Deputy President K Bean
Date 13 May 2015 Place Adelaide 1. The decision under review is set aside and in substitution for that decision, it is decided that:
(a) from 26 September 2012 to the date of this decision, and as at the date of this decision:
(i) the effects of Mr Vasios’ compensable carpal tunnel syndrome have continued;
(ii) Mr Vasios has been partially incapacitated for work as a result of his compensable condition;
(iii) Mr Vasios is therefore entitled to compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act); and
(b) the determination and calculation of the amounts payable to Mr Vasios pursuant to sections 16 and 19 of the SRC Act as a result of this Decision is remitted to the respondent.
2. The Tribunal also:
(a) reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b) orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Vasios pursuant to subsection 67(8) of the SRC Act.
.....................................................
Deputy President K Bean
Catchwords
COMPENSATION – Liability accepted for bilateral carpal tunnel syndrome – Whether applicant continues to suffer symptoms of compensable injury – Existence of degenerative arthritic condition – Whether applicant continues to be incapacitated for work as a result of compensable injury – Decision under review set aside.
Legislation
Safety, Rehabilitation and Compensation Act 1988, ss 4(9), 7(6), 16, 19
Cases
Comcare v Laidlaw (1999) 89 FCR 141
Comcare Australia v Porter (1996) 70 FCR 139
Commonwealth of Australia v (KC) Smith (1989) 18 ALD 224
REASONS FOR DECISION
Deputy President K Bean
13 May 2015
The applicant, Mr Vasios, has been employed by the respondent as a postal delivery officer, based in Whyalla in South Australia, since approximately 1995.
In approximately March 2007, he noticed pain in both of his wrists, which was ultimately diagnosed as bilateral carpal tunnel syndrome. Although the respondent initially denied liability for that condition, it eventually accepted liability to pay compensation to Mr Vasios in respect of the condition, as reflected in a consent decision of this Tribunal on 21 April 2008.
In May 2008, Mr Vasios underwent surgery for the carpal tunnel syndrome in his right wrist and, in late August 2008, he underwent surgery for the carpal tunnel syndrome in his left wrist. These surgeries reduced his symptoms and after returning to work initially on light duties, he was able to gradually increase his duties such that he resumed full-time unrestricted duties from 15 April 2009.
Subsequently, however, Mr Vasios reported to his General Practitioner that he was continuing to experience symptoms in his hands, wrists and arms. This led to further investigations of his condition which will be discussed further later in my Reasons.
One outcome of those further investigations was that on 26 September 2012, the respondent issued a determination to the effect that Mr Vasios had no present entitlement to the payment of compensation in respect of his bilateral carpal tunnel syndrome.[1] That decision was subsequently affirmed on reconsideration on 27 May 2013[2], with the reconsideration delegate indicating that she was satisfied that Mr Vasios no longer suffered from the effects of bilateral carpal tunnel syndrome. In her decision, she said that Mr Vasios had “achieved good results and resolution of this condition following surgery” and that the condition from which he was currently suffering was “a degenerative condition affecting his wrists”, which was unrelated to his employment by the respondent.
[1] Exhibit 1, T224/380.
[2] Exhibit 1, T234/395.
On 27 June 2013, Mr Vasios sought review of that decision by this Tribunal, giving rise to these proceedings.
I will next outline the applicable statutory framework and identify the issues, before addressing those issues by reference to the material before me.
the statutory framework
As I have indicated above, there is no dispute between the parties that Mr Vasios’ bilateral carpal tunnel syndrome was a compensable injury and, to the extent that it still exists, remains so. However, the issue between the parties is whether that condition currently gives rise to an entitlement to compensation in the form of weekly payments and payment of medical expenses.
In this context, the most relevant provisions are ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act), which govern an employee’s entitlement to the payment of medical expenses and incapacity payments respectively. The most relevant terms of ss 16 and 19 are set out below:
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
…
19 Compensation for injuries resulting in incapacity
(1)This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2)Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
where:
AE is the greater of the following amounts:
(a)the amount per week (if any) that the employee is able to earn in suitable employment;
(b)the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
...
It is clear from the terms of subs 19(1) that compensation will be payable in respect of incapacity suffered “as a result of” a compensable injury and in this context, subs 7(6) is also relevant.[3] It provides that:
An incapacity for work or impairment of an employee shall be taken, for the purposes of this Act, to have resulted from a disease, or an aggravation of a disease, if, but for that disease or aggravation, as the case may be:
(a) the incapacity or impairment would not have occurred;
(b)the incapacity would have commenced, or the impairment would have occurred, at a significantly later time; or
(c)the extent of the incapacity or impairment would have been significantly less.
[3] See Comcare v Laidlaw (1999) 89 FCR 141 at 144 and 147-148.
However subs 7(6) is not an exhaustive statement of the circumstances in which incapacity may be the “result of” a compensable injury.[4] It is sufficient if the injury contributes “in a material sense” to the incapacity.[5]
[4] Comcare Australia v Porter (1996) 70 FCR 139 at 146.
[5]Commonwealth of Australia v (KC) Smith (1989) 18 ALD 224 at 226.
It is also relevant to note that subs 4(9) provides as follows:
A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
issues
It follows that in legal terms, the issues for my determination are as follows:
(a)Whether, after 26 September 2012, Mr Vasios has:
(iv)continued to be incapacitated for work “as a result of” his bilateral carpal tunnel syndrome; and
(v)obtained medical treatment “in relation to” his carpal tunnel syndrome.
I propose to address each of these issues in turn.
Since 26 September 2012, has Mr Vasios been incapacitated for work as a result of bilateral carpal tunnel syndrome?
As I have alluded to above, in the context of this issue, the respondent contends that Mr Vasios’ bilateral carpal tunnel syndrome resolved following the surgeries in 2008 and that the symptoms he has been complaining of since at least 2010 have a different cause. However, Mr Vasios contends that the surgeries did not entirely relieve the symptoms of his bilateral carpal tunnel syndrome. He claims that those symptoms not only continued after the surgeries but worsened from about 2010 onwards.
In addressing the potential causes of Mr Vasios’ incapacity therefore, I must first address the factual question of whether Mr Vasios’ bilateral carpal tunnel syndrome continued to cause him symptoms in the period after 2008 and, if so, to what extent.
To what extent has Mr Vasios continued to suffer symptoms of bilateral carpal syndrome after 2008?
The Respondent’s Contentions
As I have indicated, the respondent points to the contemporaneous medical evidence and contends that the surgeries undertaken on Mr Vasios’ wrists were successful, and his carpal tunnel syndrome resolved following those surgeries. In particular, the respondent points to a report of Mr Vasios’ treating Orthopaedic Surgeon, Dr Oloruntoba, of 5 August 2008 in which Dr Oloruntoba stated:
2. The outcome of surgery on the right carpal tunnel was successful and Mr Vasios has commenced rehabilitation.
…
6. I would consider Mr Vasios will be fit to return to restricted duties following his left carpal tunnel release about 3 weeks after surgery and return to full duties at 6 weeks post-surgery. However this will depend on his recovery following surgery.[6]
Dr Oloruntoba also subsequently reported on 9 September 2008 that “The prognosis is good and I do not expect there to be any permanent residual dysfunction.”[7]
[6] Exhibit 1,T64/110.
[7] Exhibit 1, T71/118.
The respondent also points to the subsequent gap in the medical records before Mr Vasios again reported problems to his General Practitioner in August 2010.[8] In addition, the respondent directs my attention to the fact that in a report of 24 August 2010, Mr Vasios’ General Practitioner, Dr Issah, noted that:
Mr Vasios had improved with resolution of his symptoms after he had surgery for Carpal Tunnel Syndrome. In that regard, his surgery was successful.[9]
[8] Exhibit 1, T130/204.
[9] Exhibit 1, T130/204.
Whilst acknowledging that Dr Cullum’s opinion had subsequently changed, Mr Gollan, who appeared as counsel for the respondent, also relied on his earlier reports, including his report of 15 December 2010. In that report, Dr Cullum, a Consultant Occupational Physician, noted that Mr Vasios was complaining of four months of increasing symptomatology in his hands and noted that Mr Vasios had “mostly mechanical pain rather than paraesthesia”. Dr Cullum also noted the results of further nerve conduction studies which he described as “essentially normal”.[10] Dr Cullum arranged CT scans and a bone scan to be undertaken of both wrists as he considered that Mr Vasios “may have some derangement in the wrist”.[11] The CT scan was apparently “unremarkable” although it did show degenerative change, and the bone scan showed some changes “consistent with inflammatory hyperaemia”.[12] Dr Cullum observed:
This therefore would explain why the patient is reporting of mostly mechanical pain rather than the paraesthesia-type pain associated with carpal tunnel syndrome, especially as his second nerve study was relatively unremarkable. My own view is that most of the patient’s clinical findings are associated with low grade soft tissue changes in the wrists but without marked de Quervain tendonitis and there is likely to be low grade inflammation of the 1st carpometacarpal joints.[13]
Dr Cullum also stated:
I do not believe his wrist symptoms are due to a severe recurrence of his carpal tunnel syndrome as this has clearly been excluded by the updated nerve studies. In my view his problems are due to inflammatory hyperaemia as described in the bone scan report … .[14]
[10] Exhibit 1, T149/235.
[11] Exhibit 1, T149/235.
[12] Exhibit 1, T149/235.
[13] Exhibit 1, T149/235.
[14] Exhibit 1, T149/236.
In addition, the respondent relies upon the written reports and oral evidence of Dr Begg, a Rheumatologist, and Dr Talbot, a Consultant Orthopaedic Surgeon. In their oral evidence (which was given concurrently with that of Dr Cullum) both Doctors Begg and Talbot indicated that on the basis of the histories they obtained, they considered the predominant condition from which Mr Vasios was now suffering was a degenerative condition. Further, they both considered that it was this condition rather than his previous bilateral carpal tunnel syndrome which was resulting in incapacity for work. Significantly, however, they both also accepted that if in fact carpal tunnel-type symptoms were more prominent in the history than they had understood them to be, they would accept that those symptoms would also be contributing to Mr Vasios’ overall degree of incapacity.[15]
[15] Transcript, 9 October 2014, p 103.
The Evidence
Particularly in light of the evidence of Doctors Begg and Talbot, it is clearly important for me to carefully examine all of the other evidence in order to determine whether in fact Mr Vasios continued to suffer symptoms likely to be reflective of ongoing bilateral carpal tunnel syndrome in the period after undergoing his surgeries in 2008. Mr Vasios’ own evidence is an important element in my consideration of this issue. However, I propose to first review the more contemporaneous evidence (in roughly chronological order) before turning to what Mr Vasios now says his symptoms were between 2008 and the present.
The Contemporaneous Evidence
In addition to the reports I have already referred to, Dr Issah reported to the respondent on 29 July 2008 that following surgery, Mr Vasios’ right carpal tunnel syndrome had “improved significantly”.[16] On 24 September 2008, Dr Oloruntoba also reported that he thought Mr Vasios should be able to cope with the restricted duties which were proposed for him.[17]
[16] Exhibit 1, T62/108.
[17] Exhibit 1, T79/126.
On 3 February 2009, Dr Issah reported to the respondent that Mr Vasios still had soreness in the left hand and “over the base of the left fifth metacarpal”. He noted that Mr Vasios was obtaining physiotherapy treatment twice a week with some benefit.[18] The records also indicate that Dr Issah subsequently certified Mr Vasios fit to return to work on modified duties from 11 November 2008 and he apparently commenced modified duties on 3 November 2008.[19]
[18] Exhibit 1, T114/178.
[19] Exhibit 1, T98/152.
On 28 November 2008, Mr Vasios was reviewed by Dr Issah and apparently complained of “some surgical site discomfort in his wrists”.[20] Dr Issah accordingly “removed clearance for motorcycle delivery” until Mr Vasios was reviewed by Dr Oloruntoba.[21] On 17 December 2008, Dr Oloruntoba certified him fit to undertake modified duties, including a maximum one hour of motorcycle delivery duties.[22]
[20] Exhibit 1, T100/155.
[21] Exhibit 1, T100/155.
[22] Exhibit 1, T102/160.
In January 2009, the respondent requested a report from Dr Issah, which he provided on 29 January 2009.[23] In that report, Dr Issah stated as follows:
1. When I saw your client on 19/1/09 he complained of left wrist pain.
He said he cannot put a bundle of weight in his left hand and wrap it with an adhesive tape. (a common practice in handling mail for distribution)
According to him this act causes pain in the wrist.
He also experiences pain in the same wrist if he breaks (sic) hard when riding.
…
3. Given the above complaints Kym is, in my opinion, unable to increase his hours at this stage.
4. Your client would be able to increase his hours when the left wrist pain has resolved.
5. I saw your client on 27/1/09 and have referred him back to Mr Oloruntoba for his assessment of the wrist pain and scar tenderness and your client’s functional capacity.[24]
[23] Exhibit 1, T112/176.
[24] Exhibit 1, T112/176.
On 3 February 2009, Dr Issah further reported that Mr Vasios “Still has soreness in the left hand and over the base of the left fifth metacarpal.”[25] He reported that Mr Vasios was unfit for his duties as a result of pain and tenderness. However, another doctor, Dr Bamford, ultimately certified Mr Vasios fit to return to his pre-injury duties on 15 April 2009.[26]
[25] Exhibit 1, T114/178.
[26] Exhibit 1, T123/193.
There is then a hiatus in the medical records until 17 August 2010, when Dr Issah issued a further certificate indicating that Mr Vasios was fit only for modified duties between 17 August 2010 and 31 August 2010, with the restriction of avoiding heavy lifting and avoiding twisting action of the wrist. On this certificate Dr Issah stated “This is a recurrence of previous injury. For orthrotic wrist supprt (sic).”[27]
[27] Exhibit 1, T124/194.
Also in the T-documents is a file note completed by the Respondent’s Claims Manager, Mr Pattison, dated 19 August 2010 and stating as follows:
EI Consultant Teresa Jenkins spoke to Mr Vasios regarding the recurrence of his condition. Teresa said Mr Vasios told her that his wrists had never been pain-free since his carpal tunnel surgery. He had put up with the pain but it had recently become worse and he had returned to see Dr Issah.[28]
[28] Exhibit 1, T126/196.
Dr Issah subsequently provided a report to the respondent dated 24 August 2010, stating that he had seen Mr Vasios on 17 August 2010 and:
He complained of pain in both wrists but worse on the right side and thought his work load had been heavy for the past two weeks. The soreness in the wrists have become progressively worse.
He also reported Numbness of the right hand and this was worsened by carrying loads and exactly the way it was before he had his operation for Carpal Tunnel Syndrome.
He also feels pins and needles in the whole hand including the fingers and has been squeezing his hands to keep the pain down.
Pain localised to the wrist and back of the hands.
Dr Issah went on to state:
In my opinion, Mr Vasios has had a recurrence of Carpal Tunnel Syndrome. [29]
[29] Exhibit 1, T130/204.
Dr Issah subsequently issued further medical certificates indicating that Mr Vasios was fit only for modified duties as a result of the recurrence of his carpal tunnel syndrome. The respondent also advised Mr Vasios that the recurrence would be managed under his existing compensation claim.[30]
[30] Exhibit 1, T133/208.
As I have alluded to above, Mr Vasios was subsequently referred back to Dr Cullum, who reported to the respondent on 19 October 2010 that:
This letter is to advise that I saw this patient on the 15th October at the request of Dr Issah. He was assessed with computerised grip strength analysis which was organic and nerve conduction studies which showed minor delay of the left median nerve consistent with his past history of carpal tunnel syndrome. He has bilateral hand pain and I suspect has a more mechanical problem at the wrist so has been referred for further investigation including a bone scan. His current problems are not related to a severe recurrence of his carpal tunnel syndrome.[31]
[31] Exhibit 1, T140/222.
In a report dated 9 December 2010, Dr Issah commented on Dr Cullum’s opinion stating:
In my opinion, Kym still has symptoms suggestive of Carpal Tunnel Syndrome and it is not unusual to have a recurrence of a condition such as Carpal tunnel Syndrome. In Dr Callum’s (sic) report he stated that Kym does not have a severe Carpel Tunnel Syndrome. He did not state that Kym Vasios does not have Carpal tunnel Syndrome;
…
He has degenerative changes in both hands but in my opinion both conditions do co-exist.”[32]
[32] Exhibit 1, T144/226.
Dr Cullum subsequently provided the report of 15 December 2010, to which I have already referred.
On 18 January 2011, Mr Vasios was examined for the first time by Dr Malcolm Begg, Rheumatologist. Dr Begg took the following relevant history for the period following Mr Vasios’ surgery in 2008:
There was a prompt loss of numbness and tingling following this surgery but the front of his wrists still felt sore by the time he began a graduated return to work in November 2008 and resuming full time unrestricted duties within a few months. The rest of 2009 was uneventful but in early 2010 he said he began feeling pain in his wrists and hands when performing activities such as picking up tubs of mail for sorting or pulling up weeds at home. He said that these pains were different from the ones he had previously but still felt in the wrists, and also around the bases of the thumbs, and on the ulnar sides of both wrists as well. Further nerve conduction studies had shown no evidence of median nerve dysfunction as a result of possible recurrence of carpal tunnel syndrome which had been suspected by his GP Dr. W. Issah.[33]
[33] Exhibit 1, T155/254-255.
Based on the history and his examination of Mr Vasios, Dr Begg concluded that:
Neither the symptoms nor the physical signs are those of carpal tunnel syndrome for which there is also good EMG evidence of successful surgical carpal tunnel decompression procedures.[34]
Dr Begg went on to state:
The cause of his current symptoms is obscure. His symptoms are not considered due to an arthritic condition, whether it be degenerative or inflammatory. The remaining possibilities are incomplete resection of the flexor retinaculum (unlikely), an ongoing low grade flexor tenosynovitis, exuberant scar formation, rare conditions such as primary amyloid.[35]
Dr Begg added:
Depending on the final diagnosis of the other condition, it either caused the carpal tunnel syndrome which has now been surgically relieved, or it it (sic) a sequel due to scarring.[36]
And:
As stated above, Mr. Vasios’ wrist condition is considered related to his carpal tunnel syndrome, but in a manner yet to be defined.[37]
[34] Exhibit 1, T155/256.
[35] Exhibit 1, T155/257.
[36] Exhibit 1, T155/257.
[37] Exhibit 1, T155/258.
Based on Dr Begg’s report, the Claims Manager, Mr Pattison, concluded that it was not feasible to argue that Mr Vasios’ current condition was not work-related.[38] He accordingly advised Mr Vasios:
In view of the available evidence I am satisfied that your current wrist symptoms are related to your compensable condition of carpal tunnel syndrome. The effects of your current wrist condition will be managed under your existing workers’ compensation claim.[39] (emphasis in original).
[38] Exhibit 1, T157/261.
[39] Exhibit 1, T158/263.
Mr Vasios was subsequently referred back to Dr Oloruntoba, who reported to Dr Issah on 28 July 2011:
He continues to have symptoms in both of his wrists but he tells me he is coping quite well with his permanent restrictions. I understand work has sent him for other opinions but the findings have been inconclusive.
My opinion is that his hands are as good as they will get and he will have to remain on permanent restrictions at work. The suggestion of a diagnostic Cortisone injection, re-exploration and tissue biopsy is very invasive and unlikely to make a significant difference to his outcomes.[40]
[40] Exhibit 1, T167/285.
On 23 September 2011, Dr Issah reported that Mr Vasios’ pain was “now constant in the wrists. He had soreness but no pins and needles.”[41] He went on to state:
It is ny (sic) view that your client suffered an aggravation of his pre-existing Carpal tunnel syndrome as a result of extra duties undertaken while performing maintenance work.[42]
He also stated:
Mr Vasios’ bilateral wrist condition is long term. I would consider it as permanent.[43]
[41] Exhibit 1, T173/295.
[42] Exhibit 1, T173/295.
[43] Exhibit 1, T173/296.
In his report of 2 November 2011 to Dr Issah, Dr Oloruntoba also stated “I am of the opinion that this is more in keeping with a repetitive stress injury than a sequela of carpal tunnel syndrome or the carpal tunnel release.”[44] On 1 December 2011, Dr Oloruntoba also reported to Dr Issah:
He has improved slightly with physiotherapy modalities. I have organised for a brace to be applied to the right wrist. I am of the opinion that it is unlikely that he will ever get back to normal. I think his injury has stabilised and he will have to be on permanent restrictions at work.[45]
[44] Exhibit 3, Tab 16, p 104.
[45] Exhibit 1, T181/313.
On 19 June 2012, Dr Issah again reported to the respondent that Mr Vasios had continued to experience pain, “numbness and tingling n (sic) both hands – worse on the right side”. He reported having prescribed a medication known as Lyrica for Mr Vasios, which was used for neuropathic pain, and Mr Vasios apparently reported an improvement with this medication.[46]
[46] Exhibit 1, T196/331.
On 25 June 2012, Dr Issah again reported to the respondent that Mr Vasios was suffering from pins and needles in both arms and hands, as well as pain at the bases of the “MCP joints”. He apparently also reported that both hands felt “numb”.[47]
[47] Exhibit 1, T200/335.
Mr Vasios was next asked to attend Dr John Talbot, Consultant Orthopaedic Surgeon, for a further opinion at the request of the respondent. Dr Talbot took the following relevant history:
1 November 2008 return to work on light duties following approximately 18 months away from work. 15 April 2009 resumed full duties. 8 August 2010, Mr Vasios reported increased pain in wrists. He clarifies that this was not the same pain as he had with carpal tunnel syndrome, but was mainly at the base of his thumbs and deeply within the wrist and was not associated with any numbness or tingling in the hand.[48]
As to current symptoms, Dr Talbot recorded that Mr Vasios had “recently noticed some increased pins and needles occasionally in the right hand during the past six months. … He occasionally experiences electric shock-like pain through his wrists with strenuous use of his hands.”[49] He also noted that Mr Vasios reported pain at the base of the thumbs, particularly if he repeatedly gripped bundles of mail.
[48] Exhibit 1, T220/366.
[49] Exhibit 1, T220/367.
Dr Talbot concluded:
It is my opinion that his symptoms are due to osteoarthritic change in the joints at the base of the thumbs and to a lesser extent generally within the intercarpal joints of the wrists.
…
Mr Vasios’ bilateral carpal tunnel symptoms have essentially settled with surgery and I do not believe that his current symptoms are now due to median nerve compression.[50]
He continued:
The diagnosis of the condition is osteoarthritis of the carpometacarpal joints of the thumbs right worse than left and to a lesser extent osteoarthritic change generally in the intercarpal joints.[51]
[50] Exhibit 1, T220/369-370.
[51] Exhibit 1, T220/370.
It was essentially on the basis of that opinion that the respondent then ceased liability on Mr Vasios’ claim.
Dr Begg subsequently provided a further report dated 20 December 2013 in which he reiterated his view that:
Mr. Vasios is not still suffering from bilateral carpal tunnel syndrome. His original treatment for this condition has been successful and is no longer an impediment to performing the normal duties of a postal delivery officer.
Contrary to his earlier opinion, he also stated:
His ongoing wrist symptoms are arthritic.[52]
[52] Exhibit 3, Tab 5, pp 23-24.
However, Dr Begg did note that Mr Vasios reported that he sometimes felt pins and needles in his fingers, and that Dr Cullum had performed nerve conduction studies in October 2013 which showed some residual features of a past carpal tunnel syndrome. He also noted that an ultrasound of Mr Vasios’ right wrist on 4 November 2013 suggested some residual changes in the right median nerve.
Dr Cullum saw Mr Vasios again in October 2013 and provided a report to his solicitors dated 21 October 2013. In that report he acknowledged his previous findings, but noted that the updated nerve conduction studies done in 2010 showed some median nerve compromise. He indicated in this report that he thought Mr Vasios continued to have “symptoms and signs consistent with his bilateral carpal tunnel syndrome” as well as “aggravated mild degenerative change of the first carpometacarpal joints” (underlining in original).
Dr Cullum also performed further nerve conduction studies which were reported as showing mild median nerve delay bilaterally.[53] Dr Cullum provided a further report to Mr Vasios’ solicitors dated 6 November 2013 reporting on the results of an ultrasound of Mr Vasios’ wrist and noting that:
Ultrasound of the right wrist showed thickening of the median nerve in the region of the carpal tunnel though it moved normally with hand flexion and extension. The findings are consistent with carpal tunnel syndrome. There is minimal degenerative change. The left wrist was reported as normal.[54]
[53] Exhibit 3, Tab 2.
[54] Exhibit 3, Tab 3.
Dr Cullum expressed a similar opinion in his later reports, stating in his report of 29 July 2014:
Patients can continue to have significant difficulties post carpal tunnel syndrome even with normal nerve studies and in this particular patient the nerve studies were clearly abnormal which would suggest that there was a more significant persistent problem.[55]
[55] Exhibit 3, Tab 11, p 36.
Further nerve conduction studies carried out in September 2014 apparently also showed minor median nerve delay, particularly on the left.[56]
[56] Exhibit 3, Tab 14, p 43.
Mr Vasios’ Evidence
Turning to Mr Vasios’ evidence as to the history of his symptoms, Mr Vasios said in his statement:
89. After the surgeries I had some relief of symptoms.
90.The severity of the pins and needles feeling reduced such that it didn’t hurt every time I touched something.
91.However, I still continued to suffer from pins and needles, from the lack of strength and gripping ability and pain as noted above.
92.I returned to work on 3 November 2008, on ‘light duties’. This was the first time I had been back to work since June 2007.
93.After returning to work I gradually increased my duties until resuming full unrestricted duties on 15 April 2009.
94.I still continued to suffer from the pins and needles, pain and lack of strength in both hands during this return to work period.
95.By the time I had returned to full unrestricted duties, which involved delivery points of around 1200-1400, I would be in a lot of pain at the end of the working week.
96.My ongoing treatment was mainly physiotherapy and reviews by Dr Oloruntoba and Dr Issah.
97.I saw Dr Oloruntoba on 20 February 2009 and he told me he would only review me from them (sic) as necessary.
98.On 27 August 2010 I met with Dr Issah and informed him I was still experiencing pain and numbness (pins and needles) in both arms. These were the same symptoms I had experienced prior to my surgeries.[57]
[57] Exhibit 3, Tab 18.
Mr Vasios’ oral evidence was to similar effect. When he was asked about the effects of the surgery he replied that:
So really the only thing, in my mind, that the surgery did was take a little bit of the edge off the pins and needles. … So I’ve never had them that intense since I’ve had the release but I still get them constantly.[58]
He went on to explain that he did not suffer from pins and needles all the time, but would have an episode of pins and needles up to three or four times per day depending on what he was doing. He also stated that his hands felt numb “just about all the time”.[59] He added later in his evidence that the pins and needles were still there, “they’re just not as nasty as what they were”.[60]
[58] Transcript, 8 October 2014, p 34.
[59] Transcript, 8 October 2014, p 38.
[60] Transcript, 8 October 2014, p 42.
Oral Evidence of the Doctors
As is clear from my description of his evidence above, the view ultimately reached by Dr Cullum was that the surgeries in 2008 did not completely resolve Mr Vasios’ carpal tunnel syndrome and his current symptoms continue to be explained, at least in part, by the ongoing effects of that condition. Significantly, Doctors Begg and Talbot also both accepted during their oral evidence that neuropathic-type symptoms such as pins and needles, numbness, tingling, and electric shock type sensations are typically associated with carpal tunnel syndrome or other nerve related conditions rather than arthritic or degenerative conditions. They further both accepted that if Mr Vasios had ongoing symptoms of that nature following the surgeries, albeit not of the same severity, this would suggest that he was suffering from residual carpal tunnel syndrome.[61]
[61] Transcript, 9 October 2014, pp 99-100.
Both Doctors Begg and Talbot insisted that this was not the history they obtained from Mr Vasios, and their understanding was that his symptoms after the operation were quite different to those he suffered beforehand. However, both acknowledged that it was possible there were two pathologies operating concurrently, or, in other words, that some component of Mr Vasios’ symptoms were explained by residual carpal tunnel syndrome, and some by degenerative changes or other conditions.[62] Notwithstanding that concession, they each maintained their view that the predominant cause of Mr Vasios’ ongoing symptoms was mechanical pain related to a degenerative arthritic condition, although I note that, like Dr Cullum, Dr Begg’s ultimate opinion was different from that which he initially held.[63]
[62] Transcript, 9 October 2014, pp 143-144.
[63] Dr Begg initially indicated that he did not consider Mr Vasios’ symptoms were due to an arthritic condition, “whether it be degenerative or inflammatory”: see Exhibit 1, T155/257.
It was nevertheless clear from the evidence of both Doctors Begg and Talbot that the history was of critical importance in determining the extent to which Mr Vasios’ ongoing symptoms were likely to be explained by a residual carpal tunnel syndrome. Both doctors also agreed with Dr Cullum that, notwithstanding that surgery had freed the median nerve and it was no longer being compressed within the carpal tunnel, it was possible that the median nerve had been permanently damaged resulting in ongoing symptoms.[64] Ultimately, therefore, as they all acknowledged, the accuracy of the opinions of the doctors depends, in turn, upon the accuracy of the history they obtained of Mr Vasios’ symptoms. In particular, it depends on whether, contrary to the understanding of Dr Begg and Dr Talbot, Mr Vasios did have ongoing neurological symptoms indicative of carpal tunnel syndrome following the surgeries in 2008.
[64] Transcript, 9 October 2014, p 96.
Analysis
Whilst I accept that there is evidence pointing both ways on this question, having carefully reviewed the contemporaneous material available to me for the period from 2008 onwards, I have ultimately concluded that this material is in fact reasonably consistent with Mr Vasios’ written and oral evidence to the Tribunal, and the history obtained by Dr Cullum. In other words, I am satisfied that, notwithstanding what Doctors Begg and Talbot understood to be the history (based in part on what Mr Vasios told them) in fact Mr Vasios’ carpal tunnel symptoms were not completely relieved by the 2008 surgeries and have continued, albeit at a less severe level, from 2008 through until the present. I have been influenced in reaching that conclusion in particular by the doctors’ descriptions of Mr Vasios’ symptoms in the period after the surgeries, and by the respondent’s own note of Mr Vasios’ report on 19 August 2010 that “his wrists had never been pain-free since his carpal tunnel surgery”.[65]
[65] Exhibit 1, T126/196.
I have also been influenced in reaching this conclusion by the fact that there is clearly a plausible medical explanation for Mr Vasios’ ongoing symptoms following the surgery and, as I understood the position, all three doctors accepted that carpal tunnel surgery is not universally effective in completely relieving the symptoms of carpal tunnel syndrome, partly because the median nerve sometimes sustains permanent damage before the surgery is undertaken and which is not remedied by the surgery. I have also been influenced by the fact that the nerve conduction studies conducted by Dr Cullum appear to provide a measure of corroboration for the proposition that Mr Vasios suffers from ongoing median nerve compromise, as does the ultrasound report showing thickening of the median nerve in the right wrist. The main basis for my conclusion, however, is that I am satisfied on the basis of the contemporaneous records, in conjunction with Mr Vasios’ evidence, that he did in fact continue to suffer symptoms indicative of carpal tunnel syndrome continuously following the 2008 operations, albeit those symptoms were not as severe as they had been before the surgeries.
The next question which arises therefore is whether Mr Vasios’ ongoing carpal tunnel syndrome resulted in incapacity after 26 September 2012.
Has Mr Vasios been incapacitated as a result of his compensable condition after 26 September 2012?
There is no dispute between the parties that since September 2012 Mr Vasios has been and remains unfit for his ordinary duties. However, the respondent contends that his ongoing incapacity is attributable to his degenerative condition rather than carpal tunnel syndrome. Therefore, one of the factual issues for me to address in this context is whether Mr Vasios suffers incapacity for work by reason of his degenerative condition and, if so, to what extent that incapacity is different from any incapacity flowing from his carpal tunnel syndrome.
Mr Vasios’ Evidence
When he was asked about the pain at the base of his thumbs (which the doctors all attributed to his degenerative condition), Mr Vasios said that:
-he had pain at the base of his thumbs if he was “ripping or grabbing anything”, or when he folded his thumbs towards his palms;[66]
-this made it difficult for him to hold certain objects for any length of time, and it would be difficult for him to hold a mobile phone for 10 minutes in one hand; and
-currently, the pain at the base of his left thumb was worse than the right.
Mr Vasios also acknowledged that when he was sorting mail, he would need to hold each bundle of mail in his left hand and “throw in” with his right hand.[67]
[66] Transcript, 8 October 2014, p 67.
[67] Transcript, 8 October 2014, p 68.
With respect to symptoms in his “wrist”, Mr Vasios complained that the sides of his wrists would “swell up” if he did anything “overbearing or muscling”,[68] accompanied by pain in the underside or “face” of his wrist. He gave as an example taking the oil cap filter off on his car, and also said that doing up shoe laces and belts sometimes caused these symptoms.[69]
[68] Transcript, 8 October 2014, pp 70-71.
[69] Transcript, 8 October 2014, p 71.
As to what his wrist symptoms stopped him from doing, he said:
Well, it stops me riding motorbikes, it stops me punching people, it stops me doing push-ups, it stops me working in general. If I start to do any physical labour my wrists start to hum, and I can put up with it for so long and then it starts swelling up, and when it swells up that’s the end of it, I can’t do nothing anymore.[70]
[70] Transcript, 8 October 2014, p 73.
Mr Vasios also referred to an occasion at work when he attempted to pick up an empty plastic tub with his arm extended. He said the tub weighed less than half a kilo, but on picking it up he felt a shooting pain like an electric shock involving his wrist, which was so intense that he dropped the tub.[71]
[71] Transcript, 8 October 2014, p 74.
With respect to his forearms, Mr Vasios confirmed that he gets “pins and needles” in both forearms, as well as “general soreness”.[72] He said this would come on “If I do anything, if I’m working”,[73] although it could also come on spontaneously. He said the symptoms in his forearms made life “generally extremely uncomfortable” if he was trying to work.[74]
[72] Transcript, 8 October 2014, p 72.
[73] Transcript, 8 October 2014, p 72.
[74] Transcript, 8 October 2014, p 73.
As to whether he could do his normal duties now, Mr Vasios said he did not think he would be able to. He said his major concerns would be the amount of “throwing in” involved, and also the amount of motorbike riding required to undertake a normal delivery round. He thought he would be able to do the modified duties he had been given, as those involved him being given extra time for “throwing in” and his delivery, and did not involve riding a motorbike. He thought the most difficult part of the modified duties would be unloading the plastic tubs from their “cages” in the morning,[75] which he thought would cause his hands to “swell up”.
[75] Transcript, 8 October 2014, p 77.
The Medical Evidence
As I understand their evidence, all three doctors essentially agreed that Mr Vasios would not be able to undertake his usual duties.
As to whether the need for modified duties arose from his carpal tunnel syndrome or degenerative condition, or a combination of both, Dr Begg indicated that if he accepted the history given by Mr Vasios in his evidence, he would accept that the carpal tunnel syndrome as well as the arthritic condition would make it difficult for Mr Vasios to return to his normal duties.[76] With respect to the arthritic symptoms, he stated:
Sorting, probably to a degree motorbike riding be (sic) enough to make the wrists and thumbs ache.[77]
[76] Transcript, 9 October 2014, p 103.
[77] Transcript, 9 October 2014, p 103.
Dr Talbot’s opinion was similar,[78] although he stated that “the main difficulty would be from the arthritic condition”.[79]
[78] Transcript, 9 October 2014, p 103.
[79] Transcript, 9 October 2014, p 104.
However, Dr Cullum was of the view that the main reason Mr Vasios required modified duties was his carpal tunnel syndrome. He considered that if Mr Vasios only had his degenerative condition, this “wouldn’t be unduly concerning”;[80] although he acknowledged that Mr Vasios did have “two pathologies”.[81] He also indicated that he thought some of Mr Vasios’ “mechanical pain” was associated with his carpal tunnel syndrome rather than the degenerative condition.[82]
[80] Transcript, 9 October 2014, p 112.
[81] Transcript, 9 October 2014, p 133.
[82] Transcript, 9 October 2014, p 144.
All three doctors essentially agreed that Mr Vasios should be able to do the modified duties he had been given, subject to these being trialled and adjusted as needed.
Analysis
As will be apparent from my summary above, the evidence on this issue is finely poised. There is evidence to suggest that Mr Vasios’ degenerative condition causes similar limitations to his carpal tunnel syndrome, and there is some evidence, in particular from Dr Cullum and Mr Vasios himself, to suggest that the carpal tunnel syndrome symptoms are more severe and more limiting, and add significantly to the incapacity resulting from the degenerative condition. Importantly, the evidence overall is to the effect that the limitations imposed by each condition are similar in a practical sense, in that both conditions affect Mr Vasios’ ability to sort mail and ride a motorbike in particular. However, there is also evidence from Mr Vasios, which I accept, that some of his duties, such as unloading tubs from their “cages” produce nerve-related or carpal tunnel type symptoms rather than symptoms related to his degenerative condition.
In these circumstances, I am satisfied that the evidence does not allow a conclusion that Mr Vasios’ degenerative condition amounts to a “novus actus” which is now the sole cause of his incapacity. However, as both parties acknowledged, that is not the end of the matter. That is because in order to establish an ongoing entitlement to incapacity payments, Mr Vasios must establish that his carpal tunnel syndrome contributes in a material sense to his incapacity.[83]
[83] Respondent’s Further Submissions dated 9 April 2015 at [3]; and Commonwealth of Australia v (KC) Smith (1989) 18 ALD 224 at 226.
As I have acknowledged above, the evidence as to the precise causes of Mr Vasios’ incapacity, and which condition is responsible for what incapacity, is finely balanced, and does not all point in the same direction. I accept that there is evidence before me, in particular from Doctors Begg and Talbot, which supports the proposition that Mr Vasios’ current incapacity is related primarily to his degenerative condition, which causes pain at the base of his thumbs in particular, and also in his wrists. Some of their evidence also suggests that any residual incapacity caused by carpal tunnel syndrome is co-extensive with the incapacity from the degenerative condition in any event, as the effects of both sources of incapacity relate primarily to his capacity to sort mail and ride a motorbike.
Ultimately, however, as I have indicated above, the question for me is whether Mr Vasios’ carpal tunnel syndrome continues to contribute in a material sense to his incapacity, notwithstanding the presence of other causes. “Incapacity” in this context relevantly refers to an inability to engage in work at the same level as the work he was engaged in at the time of sustaining his injury[84].
[84] See subs 4(9) of the SRC Act.
Having carefully considered and weighed the evidence directed to this issue, I have ultimately concluded that I am satisfied, on balance, that Mr Vasios’ ongoing carpal tunnel symptoms contribute in a material sense to his ongoing incapacity, as they contribute to his inability to do the duties he was doing before developing the condition.
In reaching that conclusion, I have had regard to the fact that the histories taken by both Doctors Talbot and Begg were different from the history I have ultimately found to be accurate (and which is broadly similar to the history taken by Dr Cullum). I have also had regard to the evidence to the effect that the symptoms produced by Mr Vasios’ carpal tunnel syndrome and his degenerative condition respectively are different, and cause him different problems in the workplace (albeit some of those problems relate to the same duties). As I understand the evidence, Mr Vasios’ degenerative condition causes him pain at the base of his thumbs in particular, and some wrist pain, while his carpal tunnel syndrome causes the nerve-related symptoms I have described, including numbness, tingling, ‘electric shock’ or shooting pain sensations, and a sensation of swelling,[85] together with some localised pain particularly with prolonged use. In addition, I have also had regard to the fact that Mr Vasios’ carpal tunnel syndrome appears to cause him difficulties with at least some duties (for example, unloading tubs) which are not affected, or not affected as dramatically, by his degenerative condition.
[85] See, for example: Transcript, 8 October 2014, pp 37-39, 42, 70-71, 73-74, 77 and 80-81.
For these reasons, I consider that if Mr Vasios did not have his ongoing carpal tunnel syndrome he would have been less restricted in duties such as unloading tubs from their cages, and he would also have had greater tolerance for both motorbike riding and mail sorting, and therefore would have been able to undertake more of his ordinary duties for longer. In other words, I consider there to be sufficient differences in the nature, degree and effects of the incapacity flowing from each condition such that, if not for the carpal tunnel syndrome, Mr Vasios’ incapacity would be and would have been significantly less. I am therefore satisfied on the evidence that his carpal tunnel syndrome contributes in a material sense to his incapacity, and has so contributed since September 2012, when liability was “ceased” by the respondent. Indeed, if it had been necessary to determine this issue solely by reference to subs 7(6) (which it is not), I would have been satisfied that the terms of subs 7(6)(c) were met.[86]
[86] Subsection 7(6) is set out in full at [10] above. It relevantly provides that an incapacity for work shall be taken to result from a disease if, but for that disease, the extent of the incapacity would have been significantly less.
I note that, in these circumstances, an issue potentially arises as to the nature of the particular limitations imposed by Mr Vasios’ carpal tunnel syndrome, and whether there are any limitations on his work capacity which relate only to his degenerative condition. However that issue was not argued before me, and I do not propose to determine it. As I understand the position, the issue I am called upon to determine is limited to the question of whether Mr Vasios has ongoing entitlements under ss 16 and 19, and, in the event of me determining that he did, both parties sought to have the matter remitted to the respondent to determine his precise entitlements, and work restrictions.
Accordingly, I propose to set aside the decision under review and remit to the respondent the question of Mr Vasios’ entitlement to incapacity payments in the period since 26 September 2012. As I understand the position, in the period since that date, Mr Vasios has not been provided with modified duties and so will be entitled to incapacity payments on the basis he has had no “ability to earn” in that period. For abundant clarity, I should also indicate that as of the date of this decision, I consider Mr Vasios fit for the modified duties he was undertaking before returning to full duties, but unfit for his ordinary duties. However, the precise nature of the duties he is currently able to undertake will of course need to be determined by reference to the current medical evidence.
ENTITLEMENT TO MEDICAL EXPENSES
Of course it also follows from my conclusions that, after 26 September 2012, Mr Vasios has remained entitled to compensation under s 16 of the SRC Act in respect of any medical expenses he has incurred in relation to his carpal tunnel syndrome.
overall conclusion
For the reasons I have given, I am satisfied that Mr Vasios continues to experience symptoms related to his condition of bilateral carpal tunnel syndrome, for which compensation liability was accepted. I have also concluded that his compensable condition results in ongoing incapacity, and that Mr Vasios therefore remains entitled to compensation under both ss 16 and 19 of the SRC Act.
decision
The decision under review is set aside and in substitution for that decision, it is decided that:
(a)from 26 September 2012 to the date of this decision, and as at the date of this decision:
(i)the effects of Mr Vasios’ compensable carpal tunnel syndrome have continued;
(ii)Mr Vasios has been partially incapacitated for work as a result of his compensable condition;
(iii)Mr Vasios is therefore entitled to compensation pursuant to ss 16 and 19 of the SRC Act; and
(b)the determination and calculation of the amounts payable to Mr Vasios pursuant to ss 16 and 19 of the SRC Act as a result of this Decision is remitted to the respondent.
The Tribunal also:
(a)reserves liberty to apply within 14 days in relation to the costs of the proceedings; and
(b)orders that in the absence of any such application, the respondent is to pay the costs of the proceedings incurred by Mr Vasios pursuant to subs 67(8) of the SRC Act.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean ........................................................................
Associate
Dated 13 May 2015
Dates of hearing 8-9 October 2014; 21 November 2014 Date final submissions received 9 April 2015 Counsel for the Applicant Mr S Hanus Solicitors for the Applicant Tindall Gask Bentley Lawyers
Counsel for the Respondent Mr M Gollan Solicitors for the Respondent Australian Postal Corporation Litigation Section
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