LIN CHYI and AUSTRALIAN POSTAL CORPORATION
[2013] AATA 326
[2013] AATA 326
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/3768
Re
LIN CHYI
APPLICANT
And
AUSTRALIAN POSTAL CORPORATION
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 22 May 2013 Place Brisbane The Tribunal affirms the decision under review.
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Mr R G Kenny, Senior Member
CATCHWORDS
WORKERS' COMPENSATION – Australia Post employee – Liability for aggravated condition – Continuing liability ceased – Work-related condition resolved – Decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 14, 16, 19
CASES
Montesalvo and Repatriation Commission [2011] AATA 319
REASONS FOR DECISION
Mr R G Kenny, Senior Member
BACKGROUND
Lin Chyi (the applicant) has been employed by Australian Postal Corporation since 1985. On 11 February 2010, he completed a claim for rehabilitation and compensation in respect of “calcific tendonitis sprain right shoulder”. He alleged that this occurred as a result of lifting a mail item in his work in the “heavy weights” area of the respondent’s Underwood parcel facility on 23 December 2009. On 19 February 2010, the respondent accepted liability under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for “aggravation of pre-existing degenerative right shoulder conditions”. On 6 June 2011, the respondent determined that it no longer had a present liability to pay compensation to the applicant under s 16 or s 19 of the Act. That determination was affirmed in a reviewable decision on 25 July 2011.
ISSUES AND LEGISLATION
The term injury is defined in s 5A of the Act in a manner which includes the accepted condition if it arose, in accordance with s 14 of the Act, out of, or in the course of, the applicant’s employment. The issue for the Tribunal is whether the respondent is liable to pay compensation to the applicant for an injury which continues to result in incapacity for work or impairment from 6 June 2011.
CONTENTIONS
The applicant
The applicant, who is now 63 years of age, rejected the notion that his shoulder condition is related solely to his age. He referred to his siblings of similar age and noted that they have no such problems with their respective shoulder joints. He believed that his shoulder condition was related to his duties with the respondent in December 2009 when he lifted a box of wine which weighed more than the 16 kilogram limit to which the respondent’s employees are restricted. The applicant conceded that his shoulder condition has progressively improved since he injured it, that it now presents him with no limitations on his shoulder movements in his daily activities, that he has been able to continue with his employment on a restricted basis from the time of the injury, and that its improvement has enabled his local doctor to progressively increase his lifting limits at work to 14 kilograms. He is hopeful of it returning to the 16 kilogram limit in the future. He submitted that the respondent should continue to pay compensation to him because of his shoulder condition.
Mr Ben Dube
For the respondent, Mr Dube submitted that, while the respondent correctly accepted, on 19 February 2010, the aggravation of the applicant’s shoulder condition as being related to his employment, the medical evidence supported the respondent’s decision that the work-related component of his shoulder condition was no longer present by June 2011. In particular, Mr Dube referred to the medical reports, dated 20 December 2010 and 20 August 2012, of rheumatologist and rehabilitation specialist Dr Ronald Hazelton, but also noted the report, dated 24 January 2011, of rheumatologist Dr Michael Gunsberg. He submitted that regard should be had to the evidence of Dr Hazelton which had been relied upon in a previous decision of the Tribunal.[1]
[1] Montesalvo and Repatriation Commission [2011] AATA 319.
THE MEDICAL EVIDENCE
In his first report,[2] Dr Hazelton referred to an x-ray and ultrasound of the applicant’s right shoulder, dated 28 January 2010,[3] by Dr C Grobbelaar, which concluded:
There is calcific subscapularis and supraspinatus tendinopathy with a moderate subdeltoid bursal distension.
[2] See Exhibit 1, T-documents, pp. 36-43.
[3] See Exhibit 1, T-documents, p. 12.
Dr Hazelton also referred to an ultrasound, dated 6 November 2010,[4] by Dr Dammi Seneviratne, which concluded:
There is a calcific subscapularis and supraspinatus tendinopathy with probable partial thickness articular surface tears. There is fluid within the subdeltoid/subscapularis bursae.
[4] See Exhibit 1, T-documents, p. 28.
Dr Hazelton also noted an x-ray report, dated 6 November 2010,[5] in which Dr Seneviratne wrote:
The glenohumeral and acromioclavicular joints appear normal. There is soft tissue calcification seen along the line of the rotator cuff tendon. The findings would be in keeping with calcific tendinopathy.
[5] See Exhibit 1, T-documents, p. 29.
Dr Hazelton’s opinion was that the applicant presented with “the degenerative type of calcifying tendonitis as opposed to reactive calcification”. He identified the “normal ageing process” where there is “attrition of the rotator cuff with probable articular tears”. He described some individuals as having an abnormal healing process with “deposition of hydroxyapatite crystals in the tendons of the rotator cuff giving rise to calcifying tendonitis” and his opinion was that this is not related to work. In his second report,[6] Dr Hazelton confirmed that the applicant had age and degenerative change in the rotator cuff of the shoulder which was “very common in middle aged and older individuals”. He concluded:
Any previously diagnosed work related symptomatic exacerbation has now settled and ceased.
[6] See Exhibit 2.
In his report,[7] Dr Gunsberg noted that he had seen the first of Dr Hazelton’s reports and described a quite likely constitutional predisposition to the applicant’s degenerative rotator cuff calcific deposition disease.
[7] See Exhibit 1, T-documents, p. 46.
CONSIDERATION
On the basis of the reports of Dr Hazelton and Dr Gunsberg, I am satisfied that the applicant’s shoulder condition is due to age-related degeneration which was exacerbated by a work-related incident on 23 December 2009. This was the condition for which the respondent accepted liability under s 14 of the Act on 19 February 2010. On that evidence, I am also satisfied that the work-related component of the applicant’s shoulder condition had resolved by the time that he was seen by Dr Hazelton and Dr Gunsberg. In so determining, it is significant that there was no medical evidence before the Tribunal which contradicted their evidence. I have also noted that the evidence of Dr Hazelton was consistent with that given in the Tribunal decision referred to by Mr Dube.[8] It follows that, from the time of the decision under review, the respondent was no longer liable to pay compensation to the applicant under s 16 or s 19 of the Act.
[8] See para 4 (above).
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.
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Associate
Dated 22 May 2013
Date of hearing 13 May 2013 Applicant In person Counsel for the Respondent Mr Ben Dube Solicitors for the Respondent Mr Matthew Hawker, Sparke Helmore Lawyers
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