Li Shan and Australian Postal Corporation
[2014] AATA 278
[2014] AATA 278
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2012/4298; 2012/5484;2013/1185;2013/2813;2013/2814
Re
Li Shan
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Dr M Couch, MemberDate 8 May 2014 Place Sydney
Decision: The Tribunal affirms each decision under review.
Costs may not be awarded.
..........................[sgd]......................................
Ms G Ettinger, Senior Member
Catchwords
Compensation – Applicant claims incident with heavy tray of mail at work in August 2010 caused right shoulder cuff tear - Compensated for right shoulder cuff tear – Applicant at the Tribunal for liability to be accepted for left shoulder cuff tear – Applicant’s evidence that she used the left arm more at home and at work because of pain on the right - At hearing results of an ultrasound taken in July 2010 approximately three weeks before the alleged incident at work shows the right shoulder cuff tear – further applications for compensation in relation to work hours – decisions under review affirmed.
Legislation
Safety Rehabilitation and Compensation Act 1988 ss 5A, 5B, 6, 14, 19
Cases
Telstra Corporation v Hannaford [2006] FCAFC 87
Comcare v Lofts [2013] FCA 1197REASONS FOR DECISION
8 May 2014
SUMMARY
Ms Li is fifty years old, and after completing school in China and undertaking clerical work there, she came to Australia in 1987. Ms Li joined Australia Post (the Respondent in these proceedings), as a mail officer in 1999. Her main duties were as a video coder and working at the Bar Code Sorting (BCS) machine.
Ms Li says that on 9 August 2010, while working at the BCS machine, she pulled down a heavy upper tray from the mail rack, and felt a sharp pain in her right shoulder and arm. Australia Post accepted liability for a right shoulder cuff tear. Ms Li has undergone surgery for her right shoulder, and had time off for that. Liability was also accepted for further surgery as Ms Li developed adhesive capsulitis following the first operation.
Ms Li has not worked at the BCS machine since 9 August 2010. She has had a graduated return to work commencing in September 2010, and has been on light duties since. At the time of the hearing, she had been working fulltime performing the designated light duties since May 2013.
The matter before us concerns a claim for a left shoulder cuff tear which Ms Li says occurred because she used her left arm more after experiencing the tear, and subsequent pain in her right shoulder.
We found problems with Ms Li’s credit. We are mindful that she told various versions of how her left shoulder, which has been found to have a similar tear to the right shoulder, occurred. To some doctors, she stated that she felt pain in her left shoulder from approximately 2011 because she was using the left shoulder more at home and at work due to the pain in her right shoulder. To others, Ms Li alleged that in May 2012, while using a pulley at home to perform physiotherapy exercises she had been prescribed for her right shoulder, she injured her left shoulder. She did not mention the pulley in her P400 Incident Report dated 22 May 2012, (Exhibit A1).
Australia Post denied liability for the left shoulder claim in July 2012. Ms Li has applied for a review of that decision, and Australia Post’s various other decisions which deal with return to work hours and remuneration, and are discussed below.
Ms Li was examined by many doctors for medico-legal purposes. Unfortunately she did not disclose to any of those doctors, including the ones who gave evidence at the hearing, that approximately three weeks before the incident of 9 August 2010, she had attended at her general practitioner Dr Ng, and had been referred for an ultrasound on 20 July 2010, which revealed a right shoulder cuff tear.
We heard concurrent evidence from Dr J Bodel, an orthopaedic surgeon, appearing with Dr N McGill, a rheumatologist, as well as from Dr R Gray, appearing with Dr R Pillemer, both orthopaedic surgeons. We also had the reports of those doctors before us. In the course of writing their reports, the doctors had been proceeding on a history as given to them by Ms Li at the time of their examinations, which was primarily that she suffered the right shoulder cuff tear at work on 9 August 2010. However after the Presiding Member gave a short summary of the Applicant’s evidence, which included evidence regarding the findings from the ultrasound taken on 20 July 2010, only approximately three weeks before the work incident of 9 August 2010, which had not been revealed to the doctors at the time of the Applicant’s appointments, they modified their opinions.
The Tribunal noted that Ms Li has degenerative processes in both her shoulders, and that in addition, in June 2013, she had radiological investigations of the right knee which indicated she had (non-work related) advanced osteoarthritic changes affecting the patella-femoral joint with lateral subluxation (Exhibit R7).
In recent times Ms Li has reported suffering pain down her arms, and pins and needles in her legs, and, on 5 November 2013, had major neck surgery, being C3 – C7 laminectomy and lateral mass fusion. She does not claim that her problems with her neck, knee and back are work related.
The Tribunal was not satisfied that Ms Li’s left shoulder condition was compensable, and affirmed the decision of Australia Post in that regard. We have dealt with the other applications below.
Our reasons follow.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, in particular sections 5A, 5B, 6, 14 and 19.
ISSUES BEFORE THE TRIBUNAL
The Tribunal must decide whether the Applicant suffered a compensable injury to her left shoulder, that is, arising out of, or in the course of, her employment with the Respondent within the meaning of sections 5A and 6 of the Act. The Tribunal must also consider the application of section 5B of the Act.
The Tribunal must also decide whether the Applicant had a reasonable excuse for not complying in full with the return to work plans in connection with her right shoulder tear, dated:
(a)26 October 2012
(b)31 January 2013
(c)11 March 2013
(d)12 April 2013
There were five applications before the Tribunal, one dealing with the alleged left shoulder tear, (2012/4298), and the others in connection with hours spent on return to work plans.
THE APPLICANT’S EVIDENCE
Ms Li gave evidence before the Tribunal. She is reasonably fluent in English, but she says she has some difficulties with the language, particularly with medical terms.
Ms Li told us that she has worked as a mail officer with Australia Post since 1999, and was, prior to 9 August 2010, doing mainly video coding five days a week, working seven hours and 21 minutes a day. She described the work as sitting in front of a computer screen, reading documents, and using her right hand to enter a postcode. She is right handed, and she uses a mouse.
Ms Li also worked the BCS machine. She told us that the duties at the BCS machine involved lifting and moving heavy trays with envelopes containing mail. Those trays generally weighed no more than eight kilograms, but if larger and thicker letters were involved, they weighed up to 12 kilograms. She told us that the highest tray was above her head, the second at approximately shoulder height, and that the lowest was at about hip height.
However, Ms Li’s evidence was inconsistent. In her written statement dated 11 March 2013, (Exhibit A2), Ms Li stated that prior to her injuries, she did video coding for an average of half her regular hours, and did the BCS machine work for the rest of the time. In her oral evidence, Ms Li told us that prior to 9 August 2010 and acceptance of liability for the supraspinatus tear to her right shoulder, if there was no video coding work, she would work the BCS machine, sorting magazine bundles or opening large Express Post bags. This required her having to lift the bundles and bags. She said that she performed the latter duties for a short time on each occasion. In her oral evidence, Ms Li sought to correct the history Dr McGill had recorded of her work at the BCS machine. Dr McGill had recorded on 2 July 2012, the day he examined and interviewed Ms Li, that she worked the BCS machine for relatively small amounts of time. Ms Li said that she told Dr McGill she worked the BCS machine for a couple of hours every day.
Ms Li recounted how on 9 August 2010, when on the BCS machine, she pulled a heavy upper tray from the rack, using her right shoulder and arm, and felt pain in her shoulder. She stated that she informed a colleague that she had hurt her right shoulder, and that the fingers of her right hand were swollen. She was directed to the first aid room where an ice pack was applied. Ms Li said that she was referred to see the Australia Post doctor, Dr D Saad on that day. Also on 9 August 2010, Ms Li filled out a form recording the incident (Exhibit R1/T3).
Ms Li said that she consulted Dr Saad again after a few days, and was referred for further investigations, including to Dr J Trantalis, an orthopaedic surgeon. It is not in dispute that Australia Post accepted liability for the events of 9 August 2010, and that Ms Li underwent a right rotator cuff repair carried out by Dr Trantalis on 26 October 2010. She had three months off work, had physiotherapy, and was directed to do exercises at home. Ms Li told us that because of the pain in her right shoulder, she had to do a lot of things at home, and at work with her left arm. She said that Dr Saad told her she had developed post-surgery frozen shoulder (adhesive capsulitis).
On 8 March 2012, Dr Trantalis operated to release the frozen shoulder, and Ms Li had some seven weeks off work. She was prescribed physiotherapy and exercises to perform at home. On her return to work on restricted duties, which she has been doing fulltime since May 2013, she did only video coding, and continues to do so.
Ms Li stated that by mid-2011, she started to experience pain in her left shoulder, and considered it was because she was using her left arm to compensate for the pain in her right shoulder.
In her written statement Ms Li described an exercise she was given in order to rehabilitate her right shoulder. She wrote:
One of the exercises I was given involved placing a piece of rope over a door and pulling on one side with my left arm to raise my right arm. I understand that this was intended to assist in increasing the range of movement in my right shoulder.
For the sake of convenience, we refer to that exercise as the pulley. Ms Li stated further that in May 2012, while she was performing this exercise at home, she suddenly felt a sharp pain in her left shoulder. She stated that she has suffered from increased pain in her left shoulder ever since. Ms Li stated that investigations showed she had a tear in the left shoulder sustained during the exercises at home.
Ms Li filled in a P400 Incident Report dated 22 May 2012, and in which she described the injury she claimed had occurred to her left shoulder and arm. In the P400, and in her oral evidence to the Tribunal Ms Li explained how she had to use her left arm more since the injury to her right arm on 9 August 2010. We noted that in the P400, she made no reference to the pulley having caused the injury to her left shoulder. Australia Post denied liability pursuant to section 14 of the Act for Ms Li’s left shoulder in a decision dated 9 July 2012.
Ms Li attended on her treating general practitioner Dr E Ng, and many doctors for medico legal purposes in connection with her claim. We discuss their reports and their evidence before the Tribunal in the paragraphs which follow.
ATTENDANCE AT GENERAL PRACTITIONER & DISCUSSION OF THE SUPRASPINATUS TEARS
We noted that on 17 July 2010 Ms Li attended at her general practitioner, Dr Ng, whom she had been seeing for some years. His clinical notes relevantly state:
Rt sh.x2 w. no recall of any injury, find it hard to handle his work at the Australia Post, o/e: pain in all move’t, tender ant. and lat. reduced ROM in all directions, ? frozen sh. …
On 20 July 2010, on referral from Dr Ng, Ms Li attended for right shoulder X-rays and ultrasound examination at Parramatta Diagnostic Imaging. The report for the ultrasound examination stated relevantly:
Within the anterior aspect of the supraspinatus tendon there is a full-thickness tear 20 mm in length. …
(Exhibit R6)
Ms Li returned to see Dr Ng on 21 July 2010 where he documented: r/v u/sound & x-ray showed complete tear of supraspinatus tendon, tendinitis and bursitis. That was approximately three weeks before Ms Li claimed she had injured her right shoulder at work on 9 August 2010, while pulling a heavy upper tray filled with mail from a rack.
On 27 August 2010, Dr Ng recorded in his clinical notes that workers compensation in relation to Australia Post had been raised by Ms Li, and referred her to Dr Duckworth, an orthopaedic surgeon for an MRI, and opinion.
On 30 August 2010 Australia Post accepted liability for the right supraspinatus tear and, as noted above, Ms Li underwent surgery by Dr Trantalis. He carried out the right shoulder repair on 26 October 2010, followed by further surgery on 8 March 2012 for adhesive capsulitis, (frozen shoulder). However, given the results of the ultrasound ordered by Dr Ng in July 2010, and taking into account the opinions of the doctors who gave evidence at the Tribunal, (which follow), we find it is very unlikely that the right shoulder tear was caused by any incident at work which Ms Li reported occurring on 9 August 2010.
Unfortunately also, Ms Li neglected to mention this right sided full-thickness tear of 20 mm in length of the supraspinatus tendon diagnosed on 20 July 2010 when she attended consultations with the various medico-legal consultants who formed opinions about her injury, including several who gave oral evidence at the hearing.
When asked about those findings at the hearing, she stated that she was unaware of what a tear was. We do not accept that evidence as Ms Li attended at Dr Ng both before and after the X-ray and ultrasound of 20 July 2010. We would have expected him to explain the findings to Ms Li, particularly as his clinical notes reflected he had previously treated her for right shoulder pain in 2009. We noted also that Ms Li described having a right shoulder cuff tear on her compensation claim form.
When pressed, Ms Li stated that she told the doctors she had muscle pain in her right shoulder. However none of the doctors had recorded that she had done so. The following extract from the transcript of hearing on 25 February 2014 is relevant (trs p21).
MR JONES: The doctors asked you if you had had any pain in your shoulder before 9 August 2010, didn’t they?
MS LI: I explain, I just realise it’s the muscle pain. Everybody have a muscle pain in their shoulder. Maybe after that, you know, get up, you get a muscle pain. I just had a muscle pain.
…
MR JONES: The doctors asked you whether you had any pain in your shoulder before 9 August 2010, didn’t they?---
MS LI: Yes, doctor ask, yes. Did they ask that?
MR JONES: And you didn’t tell one doctor, out of all the doctors you’ve seen, you didn’t tell one doctor that you had had any shoulder pain before 9 August 2010, did you?---
MS LI: What is the question? Did I tell to any doctor my shoulder pain?
MR JONES: I’m putting to you that you didn’t tell even one doctor about your shoulder pain before 9 August 2010. You never mentioned it to anyone?
MS LI: Doctor ask me, some doctor ask me, ‘Did you have any pain in your shoulder?’ I said that I only realised only the muscle pain. This is what I answered to them.
We note also that Ms Li did not mention her pre-existing injury either in her first statement dated 11 March 2013, and filed at the Tribunal, or in her second statement dated 21 February 2014, or even when she was cross-examined about it. Notwithstanding that Dr Ng’s clinical notes had been available to both parties for some time prior to the hearing, and, in the preparation of the second statement, Ms Li’s legal team chose not to disclose the pre-existing right shoulder supraspinatus tear which had been diagnosed by ultrasound dated 20 July 2010 and reported to Dr Ng shortly thereafter.
As to the left shoulder; we noted that Ms Li first complained to Dr Ng of left shoulder pain on 27 May 2011. The left shoulder supraspinatus tear was diagnosed by way of ultrasound in May 2011. We are mindful that Ms Li had not been doing any above the shoulder work since 9 August 2010. She has been on light duties since that date.
Ms Li claimed before the Tribunal that the injury to her left shoulder in May 2012 was sustained at home while doing rehabilitation exercises with the pulley she was prescribed for her right shoulder. She also claimed that the left shoulder injury arose through overuse because she had not been using her right shoulder and arm, due to pain. She used the word overuse, but we are satisfied from the discussion at the hearing she meant the word in colloquial, and not medical or legal terms. We are satisfied from the evidence, and note there was no disagreement between the parties that Ms Li meant she used her left shoulder and arm more at home and at work because she had pain in the right one.
THE CLAIMS FOR COMPENSATION
Ms Li’s claim for compensation for right shoulder cuff tear was at Exhibit R1/T15, dated 13 August 2013. At page 38 in answer to a question: Have you ever had a similar injury/illness? Ms Li ticked No. However, it appeared to us that she had perhaps ticked the box indicating Yes, and had then blanked it out to indicate, No. When asked about this, Ms Li told us that she was confused, and was in pain when she completed the form. She also said that she had never completed such a form before, and was assisted by a colleague to do so. We decline to rely on the form. However, we have ample evidence before us to satisfy us that Ms Li did not inform the many doctors she consulted for medico-legal purposes, and even her treating surgeon, Dr Trantalis that she had a right shoulder cuff tear diagnosed on 20 July 2010 well before she saw any of them, and approximately three weeks before the incident of 9 August 2010 on which she relied.
We have already mentioned above that Ms Li also lodged a claim, the P400 for a left shoulder injury. Her versions of when the left shoulder pain commenced were various. Dr Ng’s clinical notes reveal that she consulted him about left shoulder pain on 27 May 2011. She later attributed a left shoulder injury to the pulley incident in May 2012, but did not mention that to certain of the doctors, and did not mention it on her P400.
For the sake of completeness, we note that whilst the Applicant’s counsel and certain of the doctors raised nature and conditions of work, this was not an issue before us.
THE MEDICAL EVIDENCE
The Tribunal had before it several medical reports of relevance to this matter. We have already mentioned Dr Ng’s clinical notes which were summonsed by the Respondent. The report of the ultrasound examination on 20 July 2010 reported that: Within the anterior aspect of the supraspinatus tendon there is a full-thickness tear 20 mm in length. Dr Ng’s clinical notes also disclosed that he had treated Ms Li for right shoulder pain in 2009. His clinical notes also recorded that Ms Li first complained to him of left shoulder pain on 27 May 2011, and that the left shoulder supraspinatus tear was diagnosed by way of ultrasound on 23 May 2012.
Dr J Trantalis was Ms Li’s treating surgeon, who on 26 October 2010, performed right shoulder arthroscopic rotator cuff repair, subacromial decompression, co-planing of AC joint. As to the left shoulder; in a report dated 25 March 2013, Dr Trantalis remarked that Ms Li had reported pain to him over the lateral side of the left shoulder, which was worse with activities. He opined that it was reasonable to presume that her left shoulder problems had begun as a consequence of her injury to her right shoulder, and therefore as a consequence of her employment with Australia Post.
Ms Li was referred to Dr D Saad, who was responsible for determining her return to work capabilities. Ms Li claimed that Australia Post had breached certain of the conditions of light duties which Dr Saad had prescribed.
Dr Duckworth, to whom Dr Ng had referred Ms Li for another opinion, wrote on 7 November 2012 after examining Ms Li, that she presented with a degenerative condition affecting her left shoulder in the form of a rotator cuff tear. His recommendation was against surgery.
CONCURRENT EVIDENCE
For purposes of the concurrent evidence given by Dr R Pillemer and Dr R Gray, both orthopaedic surgeons, the Presiding Member first gave a summary of Ms Li’s evidence. The Presiding Member also included a history of Ms Li’s right shoulder problems obtained via Dr Ng’s clinical notes which was that she had been diagnosed by way of ultrasound with a 20 mm length full thickness tear of the supraspinatus tendon on 20 July 2010, (only approximately three weeks before the incident at work of 9 August 2010). Neither doctor had previously been informed about the earlier diagnosis of the tear by ultrasound.
The Tribunal then asked the doctors who appeared together, to give their opinions regarding the application before the Tribunal, which was that Ms Li seeks a review of the decision of the Respondent to refuse her compensation for her left shoulder tear.
This was followed by questioning by Mr J Mrsic of counsel representing Ms Li, and Mr P Jones of counsel representing Australia Post. Below is a summary of the reports prepared by Drs Pillemer and Gray before they heard that the tear of Ms Li’s right supraspinatus tendon had been diagnosed on ultrasound on 20 July 2010, some three weeks before the incident she reported occurred on 9 August 2010.
Medico-legal reports of Drs Pillemer and Gray
Dr Pillemer’s report was dated 20 August 2013, and Dr Gray’s, 3 April 2013. On the history given to him, Dr Pillemer opined that Ms Li’s right and left shoulder conditions both constituted an injury arising out of the course of her employment with Australia Post. He referred in his report to the pulley incident in May 2012, as reported to him by Ms Li, and also recorded relevantly: Ms Li had no problems with her shoulders prior to the onset of symptoms noted above. Dr Pillemer also referred to the nature and conditions of Ms Li’s work which was not claimed, and not before the Tribunal.
Dr Gray referred to the history given to him by Ms Li of a specific injury at work on 9 August 2010. Dr Gray stated that he could not obtain a clear picture of the history, noting however, that Ms Li told him she had the onset of muscular aching in the left shoulder which came on after the first operation. He noted that she reported the aching had come on about mid-2011 with no history of injury. He did report, however, that after the second operation, she underwent a lot of pulling of weights with an exacerbation of pain in her left shoulder.
Concurrent evidence of Drs Pillemer and Gray
We are mindful that both doctors had taken a history given by Ms Li without disclosure that the supraspinatus tear of the right shoulder had occurred, and had been diagnosed on 20 July 2010 prior to the incident at work on 9 August 2010.
Dr Pillemer stated that Ms Li had reported she used her left arm and shoulder more because of pain in her right shoulder due to the tear, and even following the surgery. He said that he accepted she had a constitutional degenerative condition, the extent of which was debateable, but opined that an aggravation of the left shoulder was a possibility. Dr Pillemer accepted that the (pulley) activities Ms Li described, which were prescribed for her in May 2012, may have added to her problems. He opined that the left shoulder condition was likely to have developed sooner than otherwise because of the right shoulder problems, although he could not specify a time period. When questioned by Mr Jones, he accepted that his view was somewhat speculative. Dr Pillemer emphasised that Ms Li’s left shoulder problem did not necessarily arise out of her work, but out of the problems with her right shoulder, particularly when the right shoulder was immobilised due to adhesive capsulitis.
Dr Gray on the other hand, stated that both the right and left shoulder problems arose out of degenerative processes.
When asked how many hours Ms Li would be able to work, and to what level, Dr Pillemer stated that a judgment had to be made based on the veracity of each person. He had noted that Ms Li told him she could work for four hours a day, but felt discomfort at the end of the day. Dr Gray opined that with a rotator cuff injury, Ms Li should not be doing anything above shoulder height, and that the appropriate person to consult regarding hours and levels of work was the treating doctor.
Both doctors confirmed in their oral evidence that Ms Li had not disclosed to them any history of injuries to her shoulder prior to 9 August 2010. Both doctors agreed that the Applicant’s age, and the right supraspinatus tear followed by the left sided tear, indicated that degenerative factors were prominent.
Both doctors agreed that Ms Li’s right shoulder tear was a long standing lesion, when she was referred for ultrasound by Dr Ng on 20 July 2010, and had been symptomatic before 9 August 2010.
Medico-legal reports of Drs Bodel and McGill
The reports of Dr Bodel were dated 22 October 2012, 6 November 2012, 13 March 2013, and 9 August 2013, and those of Dr McGill, 2 July 2012 and 8 May 2013. All the reports were predicated on the history given by the Applicant, which was that she injured her right shoulder at work on 9 August 2010, and that this injury resulted in a supraspinatus tear for which liability was accepted.
In his first report, Dr Bodel opined that the injury in the left shoulder was consequential, arising because Ms Li was favouring her injured right side.
In his second report, dated 6 November 2012, Dr Bodel referred to the report of Dr Trantalis dated 19 July 2012. He noted that Dr Trantalis placed a specific date of injury on the left shoulder, not a gradual process for the onset of symptoms. Dr Bodel did not have a record of Ms Li telling him about the pulley incident. However, Dr Bodel quoted Dr Trantalis as saying:
… this lady had an injury to her left shoulder when she was trying to rehabilitate her right shoulder. Whilst using a pulley she felt a sudden give in her left shoulder … That specific event has occurred during her rehabilitation for the right shoulder causing the injury to the left shoulder.
In his further report on 9 August 2013, Dr Bodel stated that Ms Li developed gradual onset of left shoulder pain, and noted that she had been referred to Dr Duckworth who had advised conservative care. He also stated that Ms Li suffered bilateral rotator cuff pathology in both shoulders, and that he agreed with Drs McGill and Gray, who recognised that the underlying pathology was primarily of a constitutional nature and associated degenerative change.
Dr McGill recorded on 2 July 2012 in his history, that: She could recall no symptoms in either shoulder region prior to 9 August 2010. Dr McGill recorded that Ms Li underwent surgery on 26 October 2010 for her right shoulder, followed by further surgery for the frozen shoulder on 8 March 2012. He also recorded Ms Li reported that in late April or early May 2012, she experienced left shoulder pain, explaining that she used her left arm more, due to pain on the right side. Dr McGill referred to X-rays and an ultrasound carried out on 13 August 2010 which showed a complete full thickness tear of the right supraspinatus tendon with atrophy of the supraspinatus muscle belly. An MRI of the right shoulder on 13 September 2010 confirmed a substantial tear of the supraspinatus. He stated that the ultrasound of the left shoulder performed on 23 May 2012 showed a full thickness tear of the supraspinatus with mild tendinosis of the remaining tendon.
Dr McGill stated that in summary, Ms Li had degenerative change in both rotator cuffs. From the history he took, Dr McGill was able to relate the tear on the right side to the incident accepted by Australia Post as having occurred on 9 August 2010. He wrote in regard to the left shoulder:
In the left shoulder she developed symptoms in late April or early May 2012. There was no specific event at work or elsewhere. … The left rotator cuff degeneration and tear are constitutional degenerative problems unrelated to her work.
We comment further below, but note here that Ms Li’s oral evidence before us was that she had hurt her left shoulder while at home doing prescribed pulley exercises for her right shoulder. In her written statement, Exhibit A2, she had referred to pain in the left shoulder commencing in mid-2011, stating that it was due to using her left arm more to compensate for the pain in her right arm.
Dr McGill commented on Dr Trantalis’ understanding that Ms Li related the tear to using a pulley to try and rehabilitate her right shoulder. He opined that:
I think it is unlikely that event caused any significant structural change in her shoulder and noting the MRI findings of tendinosis involving the supraspinatus, infraspinatus and subscapularis tendons in the left shoulder, I think the focal full thickness tear occurred as a result of the degenerative changes in her rotator cuff and not as a result of any significant injury.
Concurrent evidence of Drs Bodel and McGill
For purposes of the concurrent evidence from Dr J Bodel, an orthopaedic surgeon, and Dr N McGill, a rheumatologist, the Presiding Member gave a summary of Ms Li’s evidence, and made reference to the disclosure, through Dr Ng’s clinical notes, of the diagnosis by way of ultrasound of a 20 mm in length full thickness tear of the right supraspinatus tendon on 20 July 2010, (only approximately three weeks before the incident at work of 9 August 2010).
Both Drs Bodel and McGill had taken a history given by Ms Li without disclosure to them that her supraspinatus tear of the right shoulder had been diagnosed on 20 July 2010 before the incident at work on 9 August 2010.
Taking into account the history of the diagnosis, Dr McGill noted that the MRI taken on 13 September 2010 indicated a tear of 19.5 mm which was a very similar measurement to that of the ultrasound of 20 July 2010. He commented that, notwithstanding the reported incident of 9 August 2010, Ms Li suffered approximately the same pathology between July and September 2010. However, both doctors agreed that an ultrasound was an imprecise measurement which would not be relied upon for a treatment decision in regard to surgery.
Dr Bodel stated in reference to the two ultrasounds (20 July 2010, and 13 September 2010) as well as the MRI of 13 September 2010:
I would agree with Professor McGill that these three taken sequentially show roughly the same pathology with nothing of significance that indicates there’s been a dramatic change.
Dr Bodel agreed that the medical evidence confirmed a right shoulder tear, a common occurrence with the ageing process, and opined that Ms Li’s right shoulder became increasingly symptomatic after 9 August 2010. Both Drs Bodel and McGill indicated the incident at work may have aggravated the existing tear (diagnosed in July 2010), for a day or two, or a little longer, but that there was no substantial change in the size of the tear or change in pathology which occurred on 9 August 2010. Dr McGill concluded that Ms Li had suffered no structural damage to her right shoulder on 9 August 2010.
Dr McGill noted that Ms Li did not report a specific event to him in regard to her claim for the left shoulder. We noted that Ms Li had not given a history of injuring her left shoulder in the pulley incident on 23 May 2012 to either Dr McGill or Dr Bodel.
Both Drs McGill and Bodel agreed that Ms Li suffered degenerative changes in both shoulders, and underlying constitutional change. There was reference to Exhibit A4, a report of X-rays and ultrasound examination undertaken for the left shoulder on 27 May 2011 which showed a partial thickness tear of 13 mm to the left supraspinatus tendon . Ms Li had reported pain commencing in 2011 to certain doctors, while to others she attributed her left shoulder injury to the pulley incident in May 2012.
We conclude from the evidence of both doctors that it was unlikely Ms Li suffered structural damage to her left shoulder at work at any time. However we accept that she may have suffered pain in her left shoulder as a result of using it more because of the pain to her right shoulder.
THE TRIBUNAL’S DELIBERATIONS
We are satisfied that there are serious issues of credit in regard to the Applicant. These commence with the reporting of an incident in which Ms Li claims she injured her right shoulder at work at Australia Post on 9 August 2010, when in fact she had been diagnosed with a right shoulder supraspinatus tear approximately three weeks beforehand. We were also concerned about the subsequent reliance on untruths, both by Ms Li and her legal team.
Ms Li reported that on 9 August 2010 the trays for the BCS machine were heavier than usual, that she pulled out a tray from the top level which was above her head height, and that she accordingly injured her right shoulder. Liability for the right shoulder cuff tear was accepted by the Respondent on the basis that Ms Li described. As noted above, Ms Li then underwent surgery for the right supraspinatus tear on 26 October 2010, followed by further surgery to deal with adhesive capsulitis on 8 March 2012.
Due to the acceptance of liability by Australia Post, Ms Li has benefited from substantial compensation payments, and has been on light duties, with no duties requiring her to reach above shoulder height since 9 August 2010, or to lift weights above five kgs.
We noted that Ms Li did not disclose to her treating surgeon, Dr Trantalis, or to Dr Mastroianni that she had consulted Dr Ng in 2009 for a painful right shoulder, and that she had been diagnosed by ultrasound on 20 July 2010, only approximately three weeks before the incident on 9 August 2010, with a 20mm full thickness right shoulder supraspinatus tear. Further, Ms Li did not disclose the tear diagnosed on 20 July 2010 in her statements to the Tribunal. Her oral evidence, in reply to questions from Mr Jones was unconvincing, and included attempts to rely on problems with English to explain she did not understand what a tear was.
Mr Jones submitted that Ms Li had not disclosed prior shoulder problems to any doctors, and stated in her oral evidence by way of explanation that she had instead told doctors she had muscle pain. He noted that none of the doctors had recorded said muscle pain.
We have noted above that four of the many specialists who examined Ms Li for medico-legal purposes gave evidence at the Tribunal. A summary of the reports of Drs McGill, Bodel, Gray and Pillemer appears in the paragraphs above. Each of the reports was prepared without the knowledge that the diagnosis of the right shoulder tear predated the alleged work injury. When the doctors gave evidence at the Tribunal, and were informed of the results of the ultrasound of 20 July 2010, their opinions inevitably, changed.
All the doctors who gave evidence at the Tribunal were satisfied that the underlying pathology was primarily of a constitutional nature, and associated degenerative changes. Drs Bodel and McGill were of the opinion that the incident on 9 August 2010 may have caused a minor aggravation which would have taken a few days to heal.
Dr Bodel stated in reference to the two ultrasounds, 20 July 2010, and 13 September 2010, as well as the MRI of 13 September 2010:
I would agree with Professor McGill that these three taken sequentially show roughly the same pathology with nothing of significance that indicates there’s been a dramatic change.
The above evidence raises an important question as to whether the Tribunal can disturb the factual findings which underpinned the Respondent’s acceptance of liability for the tear to the right shoulder. In Telstra Corporation v Hannaford [2006] FCAFC 87 (Hannaford) at [59], Conti J (with Heerey and Dowsett JJ agreeing) stated:
… the AAT below was duly empowered, upon the true construction of the SRA Act and in the events which happened:
(i) to make findings of fact that effectively undercut the necessary findings of fact made in the initial or original decision of Telstra under s 14 of the SRC Act to accept liability in respect of Mr Hannaford’s claim for compensation; and
(ii) to do so in circumstances where the AAT was undertaking its review of whether any compensation should be payable or further payable, for instance under ss 16 and 19 of the SRC Act, and/or under ss 21 and 27 of the SRC Act; and
(iii) to do so in the circumstances further where Telstra’s s 14 decision remained in force to the extent that it had not been actually reversed, and had not been the subject of any adverse review per se by the AAT.
As is the case here, where an application for compensation under section 14 is reliant upon a finding of liability for a different injury, it is reasonable that the Tribunal can make findings of fact which undermine that previous decision. This is consistent with the overall operation of the Act. As stated in Hannaford at [10], per Heerey J, the legislation allows for progressive and evolving decision-making allowing for the changes in circumstances which are inevitably likely to happen. To hold that a decision under section 14 enshrines each factual finding on which it was based would therefore be inconsistent with the general policy and text of the Act: Hannaford [2006] FCAFC 87, at [8].
We note also the comments of Mortimer J in Comcare v Lofts [2013] FCA 1197, at [72], that the decision in Hannaford related to consideration of the nature and extent of compensation for injuries for which liability had already been accepted. Nevertheless, the need to revisit factual findings with respect to a previous injury is perhaps more pertinent where those findings are relied upon to support a claim for a different injury. It is fundamental to the inquiry required by section 5A of whether the injury arose out of the Applicant’s employment. Therefore, it is open to the Tribunal to make findings of fact with respect to Ms Li’s right shoulder injury, which undercut the Respondent’s acceptance of liability for that injury.
Nevertheless, we have decided not to disturb the payments which have been made by the Respondent in relation to the right shoulder. We have already noted above that both Drs Bodel and McGill indicated the incident at work on 9 August 2010 may have aggravated the existing tear (diagnosed in July 2010), for a day or two, or a little longer, but that there was no substantial change in the size of the tear or change in pathology which occurred on 9 August 2010. Dr McGill specifically concluded that Ms Li had suffered no structural damage to her right shoulder on 9 August 2010. We base our views on the medical evidence to find that the incident of 9 August 2010 was more likely than not an aggravation of Ms Li’s right shoulder tear, of short duration.
We accept the evidence of Drs Bodel, McGill and Gray and Pillemer who, once they had the correct history, opined that Ms Li suffered bilateral rotator cuff pathology in both shoulders, and recognised that the underlying pathology was primarily of a constitutional nature and associated degenerative changes. Dr Pillemer did venture that because Ms Li used her left arm more due to pain in her right shoulder, this may have caused an onset in the left shoulder sooner than might otherwise have occurred. He had no specific evidence regarding the activities undertaken with the left arm, and agreed his opinion may have been speculative. We accept that is all it was, and give that opinion little weight.
As to the left shoulder; Ms Li’s evidence was that, notwithstanding she is right handed, she had to use her left arm more following the incident of 9 August 2010 because her right shoulder was painful. We accept that may well have been so, because she had a (non-compensable) right shoulder supraspinatus tear for which she had surgery, followed by further surgery for adhesive capsulitis. That of course does not make the left shoulder problem compensable.
The evidence regarding the left shoulder varied considerably depending upon to whom Ms Li was speaking. We noted that Ms Li sought assistance from Dr Ng for her left shoulder in mid-2011, and was diagnosed on 27 May 2011 (Exhibit A4), as having a partial thickness tear 13mm in length of the left shoulder. In her written statement she referred to pain having commenced in her left arm in mid-2011 because she used it more to compensate for the pain in her right shoulder. She also referred to the pulley incident stating it had occurred in May 2012, causing the injury to her left shoulder.
We noted Mr Jones’ submission that there was no reference to a pulley incident in the P400 Incident Report Ms Li submitted on 22 May 2012. Neither had she mentioned the pulley to Drs Bodel or McGill. Dr Bodel in fact recorded the left shoulder pain reported by Ms Li as having a gradual onset, rather than being related to a specific incident. We noted however that Ms Li told Dr Trantalis of a pulley incident which she says injured her left shoulder.
Ultimately all the doctors from whom we took evidence, stated that both the right and left shoulder problems arose out of degenerative processes, a common occurrence with the ageing process. We are satisfied that the incident at work on 9 August 2010 may have aggravated Ma Li’s existing right shoulder tear for a day or two, or a little longer, but that there was no structural damage, and no substantial change in the size of the tear on that day.
We considered injury and aggravation in section 5A of the Act in relation to Ms Li’s shoulders, and find, as stated above, on the basis of the medical evidence, that there may have been a very short term aggravation of her right shoulder tear on 9 August 2010.
Although there was likely an increase in symptomatology to Ms Li’s left shoulder in May 2012, we cannot be satisfied that any left shoulder condition Ms Li may suffer arose out of the injury to her right shoulder on 9 August 2010, and therefore from her employment. The legislative requirements for an injury under section 5A of the Act are not satisfied.
Turning to section 5B of the Act; there is insufficient evidence to satisfy us that Ms Li’s left shoulder condition was contributed to, to a significant degree, by the incident of 9 August 2010. We note, as above, that the evidence suggests that the 2010 incident only likely caused a short term aggravation of a pre-existing tear. In addition, following the incident of 9 August 2010, Ms Li has only worked on restricted duties with no above the shoulder height work, and no work on the BCS machine. In such circumstances, we conclude the claim must fail, and the decision of Australia Post be affirmed.
We now turn to the four claims before us in regard to return to work hours for Ms Li, noting that she has been working fulltime on light duties with weight restrictions and no above shoulder height work since May 2013. We note that the doctors’ opinions on hours to be worked varied. When asked how many hours Ms Li would be able to work, and to what level, Dr Pillemer stated that a judgment had to be made based on the veracity of each person. He had noted that Ms Li told him she could work for four hours a day, but felt discomfort at the end of the day. Dr Gray opined that with a rotator cuff injury, Ms Li should not be doing anything above shoulder height, and that the appropriate person to consult regarding hours and levels of work was the treating doctor.
In concurrent evidence, Dr Bodel stated that he believed that it was appropriate that the opinions of the treating doctors should take precedence in determining the Applicant’s work hours. Dr McGill stated
I think if you have a patient who is an honest historian and is motivated to go back to work, then their views are very useful in terms of their capacity.
However we are satisfied that the Applicant was not a witness of credit. The history she gave varied depending upon which doctor she spoke to. Such circumstances make it difficult to exactly determine the capacity of Ms Li. Nonetheless, for the reasons given below, it is unnecessary for the Tribunal to decide on Ms Li’s capacity to work.
The four claims arise out of the right shoulder tear for which liability has been accepted. Nonetheless, as stated in Hannaford, in circumstances where the tribunal is reviewing whether further compensation is payable, the Tribunal is not confined by the factual findings that underpinned the acceptance of liability. The Applicant submits that Ms Li did not have the capacity to work the hours required by the rehabilitation programs, and should have been paid compensation at a rate which reflected her actual capacity. Mr Mrsic submitted that the treating doctor, Dr Saad’s recommendations regarding hours to be worked were not followed on each occasion.
Nonetheless, we find on the evidence before us, as stated above, that the right shoulder tear was due to constitutional and degenerative processes, and diagnosed on 20 July 2010 by way of ultrasound. We are satisfied from Dr Bodel and Dr McGill’s opinions that any aggravation to Ms Li’s right shoulder tear which may have occurred on 9 August 2010 would have been of short duration, and accordingly not impacted on the claims in the four matters, 2012/5484, 2013/1185, 2013/2813, and 2013/2814. Any alleged inability to complete the hours prescribed in the four rehabilitation programs was therefore not as a result of any work related injury. We accordingly affirm the decisions of Australia Post in those matters.
For the sake of completeness we note that in recent times Ms Li has suffered pain down her arms, and pins and needles in her legs, and has undergone major neck surgery, being C3 – C7 laminectomy with a lateral mass fusion. She does not claim that her problems with her neck, knee and back are work related.
DECISION
The Tribunal affirms each of the five decisions under review.
Costs may not be awarded.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of G Ettinger, Senior Member and Dr M Couch, Member. ........................[sgd]................................................
Associate
Dated 8 May 2014
Dates of hearing 25, 26, 27 February 2014 Date final submissions received 27 February 2014 Counsel for the Applicant J Mrsic Solicitors for the Applicant
Counsel for the Respondent
T D Kelly & Co
P Jones
Solicitors for the Respondent G Jones, Graham Jones Lawyers
0