Lisa Watson and Australian Postal Corporation
[2014] AATA 120
[2014] AATA 120
Division GENERAL ADMINISTRATIVE DIVISION File Number
2013/1041
Re
Lisa Watson
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 6 March 2014 Place Brisbane The decision under review is affirmed.
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Deputy President P E Hack SC
CATCHWORDS
COMPENSATION – INJURY – whether applicant did suffer from claimed injury – whether injury arose out of, or in the course of, employment.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B.
REASONS FOR DECISION
Deputy President P E Hack SC
6 March 2014
The applicant, Ms Lisa Watson, was formerly an employee of the respondent, Australia Post. On 18 November 2012 Ms Watson made a claim for compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act) for an injury she described as,
…sore wrists, chronically cold hands, excruciating pain in palms, tingling in fingers, stiffness in fingers, loss of strength.
The injury occurred, according to the claim form, as a consequence of Ms Watson being required to work with "large letters" almost every night in the period from 19 September 2012 to 11 October 2012.
On 6 December 2012 Australia Post refused Ms Watson's claim on the basis that its delegate was not satisfied that her condition had resulted from her work duties. That decision was affirmed on reconsideration on 8 January 2013.
Ms Watson seeks a review of the decision.
It is unnecessary for present purposes to undertake any detailed analysis of the SRC Act. By a combination of ss 14 and 108A of that Act, Australia Post is liable to pay compensation, in accordance with the Act, in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. There is no doubt that Ms Watson was an employee and whatever her condition was, it has resulted in incapacity for work. The issue is whether the symptoms of which Ms Watson complains amount to an injury.
The term "injury" is defined in s 5A of the SRC Act to mean,
(a)a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than the disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment:
[Thereafter follows a presently irrelevant exception].
The term "disease" is defined in s 5B of the SRC Act to mean,
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’0s employment by the Commonwealth or a licensee.
The factual background is not in dispute. Ms Watson commenced employment with Australia Post as a mail officer in 2006. She was an employee at a mail centre, sorting mail and suchlike. In mid-2009 she commenced having difficulties with her wrists and made a claim for compensation. In connection with that claim, nerve conduction studies were performed in November 2009. All electrical parameters were normal. In February 2010 she was seen by Dr Phillip Vecchio, a consultant rheumatologist, at the request of Australia Post. He found no evidence of arthritis, tendinitis, crepitus or neurological disturbance. Tests for carpal tunnel syndrome were negative. In his report of 2 February 2010 Dr Vecchio said that the diagnosis of Ms Watson’s condition was,
Regional pain syndrome of the right upper limb. This is a descriptive term related to discomfort and dysfunction experienced by Ms Watson that does not fit a particular patho-anatomical distribution or diagnosis. The condition is linked to non-specific pain, temporally linked to the occupational tasks described. [1]
This condition had arisen, he concluded, because Ms Watson's upper limbs were intolerant of repetitive action. He suggested maximum job rotation as the only recommended strategy.
[1]Exhibit 2, page 4.
Ms Watson's claim was accepted. When she returned to work she was only permitted to work part-time. She did not recommence full-time work until December 2011. She says that she again noticed her wrists getting sore. In December 2011 she saw Dr Ellen McGirr, a consultant rheumatologist. Dr McGirr reported a "completely normal physical examination in the upper limbs". She was unable to confirm any ongoing disability. Ms Watson saw Dr McGirr again in March 2012 after resuming full-time work. She notedvarious complaints by Ms Watson. Again Dr McGirr could find no abnormality on examination. She suggested Ms Watson seek to arrange her work so that she could have a five-minute break each hour.
Around this time Ms Watson returned to part-time work. She continued in part-time work until her eventual departure from the employment of Australia Post in November 2012. In September 2012 Ms Watson was engaged in the task called "large letters", sorting A4 sized letters. She experienced pain in her wrists thereafter. She attended Dr David West, her local general practitioner on 15 October 2012. He certified her unfit for work that week and, subsequently, for the following week. His clinical notes for 15 October 2012[2] indicate that Ms Watson's hands were cold but he was not able to detect any abnormalities on examination. On 18 October 2012 he noted that Ms Watson had improved with rest. On 29 October 2012 Ms Watson attended another general practitioner, Dr Gerard MacMahon. He certified her unable to work for the following week on the basis of a diagnosis of bilateral wrist repetitive strain injury.[3] Ms Watson returned to work on 5 November 2012 but resigned with effect from 26 November 2012 having lodged her claim for compensation on 18 November 2012. She has not since been in employment.
[2]Exhibit 12 (as best I can interpret them).
[3]Exhibit one, page 41.
Two questions arise – what condition does Ms Watson suffer from and did that condition arise out of, or in the course of, Ms Watson's employment with Australia Post.
Ms Watson says that she suffers from carpal tunnel syndrome. Australia Post denies that is the case.
Some further detail of the medical evidence is necessary. Following her departure from the employment with Australia Post, Ms Watson had nerve conduction studies undertaken by Associate Professor Geoffrey Boyce, a consultant neurologist, on 12 December 2012. His report of that date referred to,
There is both sensory and motor evidence of compression of the median nerve at the left wrist, under the flexor retinaculum, this is known as carpal tunnel syndrome.
Ms Watson was referred to Dr Sally Butchers, a general surgeon. Dr Butchers undertook a left open carpal tunnel release on Ms Watson in July 2012. Dr Butchers has provided a report dated 8 November 2013.[4] In it she says:
Clinical examination [on 11 February 2013] showed Ms Watson to be tender in both palms with reduced thumb abduction and opposition compared with the right-hand side. There was no difference in sensation between sides.
The nerve conduction study showed both sensory and motor evidence of compression of the median nerve in the left wrist, under the flexor retinaculum, this is known as carpal tunnel syndrome. All other nerves were normal.
Repetitive tasks such as mail sorting can contribute to Carpal Tunnel Syndrome as they involve repetitive hand and wrist use.
[4]Exhibit 9.
On 22 August 2013 Ms Watson was seen by Dr Alison Reid, a consultant neurologist, at the request of Australia Post. She provided a report of that date and gave evidence at the hearing. When seen by Dr Reid, some nine months after ceasing work with Australia Post, Ms Watson was complaining of "some pain" in the left-hand (that operated on by Dr Butchers) and "burning pain" in the palm of her right hand and pain in the right wrist. Dr Reid performed nerve conduction studies which were normal. Dr Reid expressed her view in this way,
I do not believe there is any convincing evidence that Ms Watson has ever had carpal tunnel syndrome in either her right or left hand.
Having regard to the evidence I entirely agree. I need not decide whether the appropriate diagnosis is as Dr Reid suggests; it is enough to say that I am well short of being satisfied that Ms Watson was suffering from carpal tunnel syndrome. As Dr Reid points out, nerve conduction studies between November 2009 and August 2013 have been normal apart from an extremely subtle abnormality detected by Dr Boyce in the left-hand in December 2012. I accept Dr Reid's opinion that the result of that test, in the absence of any of the clinical signs of carpal tunnel syndrome, does not permit a diagnosis of carpal tunnel syndrome. According to Dr Reid, Ms Watson does not demonstrate the clinical signs of carpal tunnel syndrome, in particular, numbness and tingling in her hands in the morning.
Moreover, it is inconsistent with a diagnosis of carpal tunnel syndrome that Ms Watson continues, at least in August 2013, to experience pain in her hand and wrists, about nine months after she had last engaged in the activity which she suggests caused the problem. Dr Reid's evidence, which I accept, is that it would be most unusual for a woman of Ms Watson's age and weight to have carpal tunnel syndrome – it is most frequently experienced by women aged between 45 and 60 years and commonly associated with obesity, diabetes, or hypothyroidism.
I am not satisfied that Ms Watson is, or was at the time of her claim, suffering from carpal tunnel syndrome.
Moreover, and however Ms Watson's ailment be described, there is no evidence that suggests it arose out of, or in the course of, her employment with Australia Post. The necessary connection between employment and the matters of complaint is absent.
It follows that the decision under review should be affirmed.
I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC .....................[Sgd]...................................................
Associate
Dated 6 March 2014
Date of hearing 28 February 2014 Applicant In person Counsel for the Respondent Mr CJ Clark Solicitors for the Respondent Litigation Section, Australia Post
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