Massey and Australian Postal Corporation - [2001] AATA 630

DECISION AND REASONS FOR DECISION [2001] AATA 630

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2000/370

GENERAL ADMINISTRATIVE DIVISION       )
           Re      VICKI MASSEY
  Applicant
           And    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISION

Tribunal Mr IR Way, Member

Date5 July 2001
PlaceCanberra

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant suffered an injury, pursuant to Section 4 of the Safety Rehabilitation and Compensation Act 1988, to her right shoulder and neck on or about 8 June 2000 as a result of work-related chronic overuse. The Tribunal further determines that the respondent is liable to pay compensation to the applicant, pursuant to Section 19 of the Act, for incapacity for work because of this injury for the period 14 August 2000 to 28 May 2001 and that the respondent is liable, pursuant to Section 16 of the Act, to pay the applicant's reasonable costs of medical treatment obtained during this period. The Tribunal further directs that the respondent pay the applicant's costs as agreed, or failing agreement, as taxed by the District Registrar of the Tribunal in accordance with the Tribunal's Practice Direction. This decision is a decision favourable to the applicant and the Tribunal remits the matter to the respondent for determination of the compensation payable to the applicant in accordance with these reasons for decision.

(Sgd) IR WAY
MEMBER
CATCHWORDS
COMPENSATION – muscular pain right shoulder, neck and arm – whether applicant suffered injury at work – whether applicant incapacitated - whether condition compensable and/or gives rise to payment of reasonable medical costs.

Safety Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 19

REASONS FOR DECISION

5 July 2001 Mr IR Way, Member

This is an application by Vicki Massey (the applicant) for review of a decision of a delegate of Australian Postal Corporation dated 7 August 2000 that compensation was not payable to the applicant for liability in respect of muscular pain right shoulder, neck and arm. On reconsideration this decision was affirmed by Australia Post on 26 September 2000.
The Tribunal had before it the documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 (T1 – T24). The Tribunal also received into evidence the following documents:
For the applicant

Exhibit A1 Report of Dr Guirguis dated 8.11.00
Exhibit A2 Report of Dr White dated 9.11.00
Exhibit A3 Report of Dr Scott dated 6.12.00
Exhibit A4 Report of Dr Guirguis dated 17.5.00

For the respondent

Exhibit R1 Note signed by the applicant dated 8.2.00
Exhibit R2 Report of Dr McGill dated 7.11.00
Exhibit R3 Clinical notes of Dr Guirguis – 18.4.97 to 11.4.01

The applicant gave oral evidence and oral evidence was also given by Dr Guirguis. Dr Scott, Dr White and Dr McGill gave evidence by telephone.
Background
The applicant was born on 13 November 1958 and was first employed by Australia Post as a night sorter in 1996. In June 2000 the applicant submitted an incident report claiming muscular pain in the right side neck, shoulder and arm which she said she had experienced over a period of time culminating in the pain being so severe on the night shift early in June 2000 that she sought medical advice. Her claim for rehabilitation and compensation for this condition followed on 15 June 2000.
Issues
The principal issues in this matter are whether or not the applicant suffered an injury to the right side neck, shoulder and arm as a result of work duties and, if so, is it a compensable condition which has given rise to any incapacity for work or the payment of reasonable medical treatment costs.
Legislative framework
The Safety Rehabilitation and Compensation Act 1988 ("the Act") relevantly defines "injury" in Section 4. Section 14 provides for liability to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work and Section 16 provides for liability to pay medical expenses. Section 19 provides for compensation for injuries resulting in incapacity.
Applicant's evidence
The applicant told the Tribunal she initially worked a 25 hour week on 4 to 5 hour night shifts with additional time worked principally during Easter and Christmas periods and occasionally on Saturday nights.
It was the applicant's evidence that in the period from mid-November to Christmas 1998 she was employed on full shifts when she developed pain in her right neck and shoulder which got progressively worse. She attributed her problems to work in the handling of tubs of mail, parcels and to beat sorting of mail. She did not seek or receive any treatment for this condition at the time saying that she "thought it was me" and that the intensity of the pain reduced after the Christmas rush.
The applicant said that the pain in her right shoulder, neck and arm did not go away in 1999 and it got worse around the Christmas period in that year when she thought she sought medical attention. She told the Tribunal that on or about 8 June during a night shift she suffered numbness to the back of her head and thought she had had a stroke. She saw her general practitioner, Dr Guirguis, whom she had been seeing for 17 years. He sent her for x-rays and gave her a medical certificate relating to her neck, shoulder and arm pain saying she was unfit for work from 8 June 2000 to 16 June 2000. She said she went to work the next day, Friday 9 June, to give her supervisor the certificate and the supervisor sent her to see Dr Buczynski, an Australia Post nominated doctor. Dr Buczynski checked her neck and back and told her manager she would be fit to resume work on light duties on Tuesday, 13 June after the long weekend.
The applicant told the Tribunal she went back to work on 13 June feeling "pretty much the same" on her normal 25 hours per week undertaking light duties such as re-direction of mail, filing, keyboarding and some mail sorting, but no heavy lifting or high sorting. The Tribunal notes that a rehabilitation case manager was appointed at the time her claim was submitted and a return to work plan was developed (T8 and T9). The applicant also had physiotherapy once a week but continued to suffer pain and saw her general practitioner who reduced her workload to 3 hours per day and, finally, she went off work completely on 14 August 2000. Since then she has not engaged in any paid work, has seen her general practitioner regularly and feels there has been no improvement in her condition. She said that she had met with Dr Guirguis on 17 May 2001 as a result of which she now proposed to recommence work on 28 May 2001 as he thought she was fit to gradually return to work.
In answer to questions in cross-examination, the applicant told the Tribunal that, although she was still in pain, she continued to do most of the housework, washing and cooking for herself, her daughter aged 13 and her son aged 17. She said she did not receive much support from her children. She continues to drive a car without any problems, do the shopping with some assistance from friends, attend Bingo twice a week and goes to a Club at least once a week for meat raffles and to play the poker machines. She said that her activity level now was much better than it was in 1999 and up until when she stopped work when she was too tired to do much more than to go to work and attend to home duties.
Counsel for the respondent took the applicant through a detailed chronology of visits to her general practitioner from November 1998 to the time the applicant went off work and covering a range of ailments including blurred vision, migraines, flu, shingles, rash, cholesterol levels, shortness of breath, moles, stress, sleeplessness and depression. The applicant agreed that she had a good relationship with Dr Guirguis and his wife, who was also a doctor. She said there were no communication difficulties and that she would see Dr Guirguis for the majority of her problems. When it was put to the applicant that she had not raised the matter of pain in her right neck, shoulder and arm during the period March 1999 to May 1999 because it was not true to say that she had suffered constant pain for 2 years from Christmas 1998, the applicant said that she did not tell her doctor everything and she was hoping that the pain would go away. She said the pain comes and goes and admitted that the pain was not too bad until she saw Dr Guirguis in June last year.
The Tribunal notes in February 2000 the applicant wrote to the Manager, Mitchell Delivery Centre applying for a full-time position stating:
"At present I am employed in a part-time capacity and have been in this situation for just on four years gaining knowledge and experince [sic].
If an opportunity should arise in the near future I will look forward to submiting [sic] my application." [Exhibit R1]
When asked why she would apply for a full-time position requiring 36 hours per week even though she was in constant pain, she said she was hoping it would go away. The applicant agreed that during the period middle-May to end of May 2000 she increased her hours from 25 per week to 30.5 per week. With respect to the marked increase in pain which she claimed happened in June 2000, she could not recall any specific incident within or outside the workplace that caused the pain. She said the numbness at the back of her head had gone but there was still numbness in her right shoulder, neck and arm. She said she is still taking celebrex which dulls the pain, that she had found the physiotherapy very painful and that she was not seeing any specialist doctor for any of her conditions.
Medical evidence
Dr Scott, an Occupational Physician, provided a written report dated 6 December 2000 (Exhibit A3) and gave evidence by telephone.
In his written report, Dr Scott took a history of the applicant's suffering variable pain in her right neck and shoulder areas over a period of months, especially in busy times such as pre-Christmas 1999. He opined that the applicant suffered from a gradual overuse syndrome of her right shoulder and neck which on balance was caused by her work duties at Australia Post.
In his oral evidence, Dr Scott told the Tribunal that he was very familiar with the duties of a postal sorter including night sorting. He said that Dr Guirguis' diagnosis of sprain or strain was consistent with his own diagnosis as the sprain or strain was not acute. It was related to muscle and ligaments in the area involved. He said that x-ray and CT scan showed a very mild degenerative condition of cervical/lumbo spondylosis more so in the lumbar spine than the cervical spine, but that prior to the onset of her problems she was asymptomatic and there was no past history of any muscular/skeletal problems. He said that the level of degeneration found would be normal in a woman of the applicant's age and that he had found no neurological problems on examination.
Dr Scott said that 90-95% of the applicant's condition was related to overuse and directly attributable to the duties she was required to perform. With regard to the duties, he said these required the abnormal use of limbs being highly repetitious over a few hours and that there was potential for problems to develop in those persons prone to suffering from overuse. Dr Scott said that the light duties prescribed by Dr Buczynski in June 2000 were appropriate provided that the applicant had been given sufficient time off work for her condition to settle before her gradual return to work.
Dr White, a Neurologist, provided a written report dated 9 November 2000 (Exhibit A2) and gave evidence by telephone. In his report, Dr White took a history of the applicant first developing discomfort around the right shoulder for the first time at Christmas 1998, progressively increasing, but that she did not see a doctor about this until June 2000. Dr White opined that the applicant suffers from an industrial overuse syndrome with super-imposed chronic pain syndrome. On examination he found no abnormality in either cervical or lumbosacral region, that there was no focal tenderness, that the applicant had a full range of movement in both shoulders and that he found no evidence of neurological damage. He said he found nothing significant in the applicant's x-rays or CT scan.
With respect to chronic pain syndrome, Dr White said that while this caused disruption to pain pathways at some level, there is no scientific determination of how this occurred and, likewise, with fibro-myalgia which affected the muscular/ligamentous system, the underlying pathology had not been elucidated. With respect to the applicant's ongoing pain after finishing work, he said that it was possible that domestic duties would prolong the symptoms and it would be difficult to say how long it might take before there was relief from pain.
Dr Guirguis provided two written reports (Exhibit A1 and A4) and gave oral evidence. In his written report (Exhibit A1), Dr Guirguis records a history of the applicant developing progressive pain to her neck, right shoulder and right arm in the few weeks prior to the consultation and opined that the applicant suffered a sprain/strain-type injury to her neck, lower back and right arm due to work activities as a night sorter with Australia Post. He said the prognosis was guarded but currently she was totally incapacitated for her pre-injury work duties. In his second report (Exhibit A4), Dr Guirguis stated that the applicant was fit to resume work on light duties as from 28 May 2001.
In his oral evidence, Dr Guirguis said that his diagnosis was consistent with that of Dr White, Dr Scott and Dr Buczynski (chronic overuse). He said that it was a pity that the applicant had not rested after he saw her on 8 June rather than going back to work after the long weekend and before undertaking the return-to-work programme set out by Dr Buczynski. This plan was started and included restricted duties, medication and physiotherapy. Dr Guirguis said it was unfortunate that Australia Post, following a report from Dr Downes, stopped the return-to-work programme and refused liability to pay compensation. Dr Guirguis said that it had all been downhill from there as far as the applicant was concerned with the applicant's decomposition exacerbating her muscle tightness and pain. It was not until April this year that a return-to-work programme as from 28 May 2001 was negotiated with Australia Post on the basis of reduced hours, well-defined and monitored light duties and supervised exercise.
In cross-examination, Dr Guirguis was taken to his clinical notes (Exhibit R3) where on 8 June 2000 he recorded a history of progressive pain for a few weeks prior to 8 June 2000. He said this meant 6 to 8 weeks and came from notes made by his wife who saw the applicant on 14 March, 4 April and 5 May. When asked if the applicant had mentioned anything about a pain in the back of her head, Dr Guirguis said he only recorded neck pain. He said he did not as a matter of course record every word said by a patient but covered the necessary pathology in his notes for himself to ensure he had a clear understanding of the problem. "Pain in right side of neck" was the description he recorded in his notes.
Further in cross-examination, it was put to Dr Guirguis that he had adopted an adversarial position in regard to Australia Post. He said that he saw himself serving as a middle man in this case, the reason being he thought Australia Post had asked Dr Downes to answer questions such as "Is there any reason to suggest that this lady is having us on?" (T15/56). He said he had similar situations with four other patients relating to Australia Post. He said further that the applicant in this case was shy, stressed easily and needed his encouragement and support. The Tribunal notes that it was pointed out to Dr Guirguis that his assumption that Australia Post had asked the above question is wrong (T15/61-62).
With respect to the current return-to-work programme, he said that he did not think the applicant's symptoms had improved greatly but that she was keen to go back to work on night shifts for financial reasons but he had not recommended this as muscle pain gets worse at night and initially he was being cautious. Dr Guirguis said he hoped the applicant would be able to return to 25 hours per week within two months of her return to work provided she had the recommended treatment and her new programme was properly supervised. He said that he had not considered it necessary to refer the applicant to any specialist.
Dr McGill, a Consultant Rheumatologist, provided a written report dated 7 December 2000 (Exhibit R2) and gave evidence by telephone. In his written report he took a history of the applicant suffering discomfort in the right shoulder and right neck region from Christmas 1998 but not seeking medical attention or reporting the symptoms until June 2000. Dr McGill opined that the applicant suffered from mild degenerative cervical and lumbar spondylosis, that this condition was constitutional and its development and progression was not influenced by work duties, although the condition can cause spontaneous flares of pain at times and that at these times work duties could be a significant cause of symptoms being suffered.
In evidence by telephone, Dr McGill was taken to the clinical notes of Dr Guirguis which showed from October 1998 to May 2000 the applicant suffered a number of ailments and, apart from an entry on 4 March 1999 relating to neck pain, there was no reference to pain in the right neck, shoulder or arm. He said this information had not been available to him when he wrote his report and that the notes showed that the applicant suffered stress and anxiety at the relevant time and that this may well explain her symptoms of pain in the neck, shoulder and arm whereas a mild degenerative condition could not account for the severity of her pain.
When asked to comment on the diagnosis of overuse, Dr McGill said that in his opinion in such cases the condition generally gets better if duties are stopped, that in this case the pattern was not in keeping with overuse and overuse was not a plausible explanation. He said he had seen Dr Buczynski's report (T12/45) and he disagreed with his diagnosis of gradual overuse syndrome and that he also disagreed with Dr White's diagnosis of industrial overuse with super-imposed chronic pain. In summary, Dr McGill was of the opinion that with mild degenerative cervical and lumbar spondylosis, work duties could have played a part at the time the applicant's problem manifested itself in June 2000 but, in this case, any ongoing symptoms after that time would have more likely to have been as a result of stress and anxiety than as a result of overuse.
The Tribunal notes that at T9/35-36, Donna Trevenar, Occupational Therapist, on 15 June 2000 completed an initial needs assessment recording the history of the injury according to the worker and recommended that:
"Ms Massey should be encouraged to participate in the recommended treatment consistently over the next few weeks. Her gradual increase in work duties up to full duties is recommended, however it will be important in the future to ensure that Ms Massey has a change in tasks and regular breaks during her working day."
Ms Trevenar also took a history of the injury according to the worker and recorded:
"Ms Massey reports that she has been experiencing pain symptoms in her right dominant arm over the past couple of years. However she did not want to complain. She thought that the pain would go away and she could work through it. Recently the pain has increased and she has experienced constant pain in her right arm."

At T12, Dr Buczynski took a history of chronic right shoulder pain being present on and off for two years prior to 9 June 2000 and opined the applicant suffered chronic pain in the right side of neck, right shoulder and right arm as a result of chronic overuse relating to mail sorting.
At T15, Dr Downes also took a history on 28 July 2000 of at least two years or more of suffering pain in the right side of her neck and down her right arm. He stated that there was absolutely nothing to find clinically that would help with a diagnosis. However, he accepted that she had pain and opined that she could be suffering from thoracic outlet syndrome which was not serious and was not related to her work circumstances.
Submissions
In summary, it was submitted for the applicant that the applicant should be seen as a credible witness who gave a truthful and consistent history of her symptoms and that the weight of medical evidence was overwhelmingly in her favour. It was submitted that the applicant, pursuant to the Act, has sustained an injury that was work-related causing incapacity to the present time and requiring medical expenses during that period.
It was submitted for the respondent that the applicant's recall of history was far from consistent, that the duties performed by the applicant were not constant repetitious duties "day in and day out" as contended by the applicant. It was submitted that, in the months prior to the claim being submitted, it was difficult to see there was a work-related problem as she had not only applied for a full-time position, but also was not required to work increased shifts, and had a relaxing holiday from 19 April to 7 May.
It was further submitted that Australia Post was not unsympathetic to the applicant and that Dr Buczynski's return-to-work programme was well-founded and sound. With respect to the medical evidence, it was contended that neither Dr White nor Dr Scott had been made aware or asked to consider Dr Guirguis' clinical notes, particularly in regard to anxiety and stress, and that Dr McGill's evidence should be preferred. It was submitted that there was a complete lack of clinical findings of objective criteria of symptoms which would support the finding of a common injury or a disease.
It was also submitted that the applicant, since ceasing work in June 2000, had had little treatment for her claimed condition, had not given up any activities previously performed and that she had increased her social activities since ceasing work raising doubts about her eagerness to return to work. Finally, it was contended that as there was no claim for depression, this was not a matter the Tribunal should consider and that decomposition resulting from cessation of compensation was not a compensable condition.

Consideration

At the outset, the Tribunal needs to address the applicant's credit. Turning first to the history given by the applicant to the various medical practitioners and occupational therapists. Apart from Dr Guirguis, all of the other medical reports consistently record a history of long-term variable pain in the right neck, shoulder and arm area leading up to the reported incident on 8 June 2000. Dr Guirguis has been treating the applicant for the past 16 years and the Tribunal is of the view that when he saw her on 8 June he would not have seen a need to ask the applicant for a history of her pain and that he recorded a few weeks of prior pain from the clinical notes of his wife who had seen the applicant during this period. This leaves open the question of why the applicant had not told her general practitioner about the pain in her right neck, shoulder and arm during the period from Christmas 1998 to April 2000.
The Tribunal accepts the explanation given by the applicant that she did not see a need to report the pain during this period as it waxed and waned and she hoped it would go away. The Tribunal notes that no medical practitioner has called the applicant's credit into question, rather the opposite, and that during the hearing the Tribunal was satisfied that the applicant honestly attempted to answer the questions put to her to the best of her ability. It follows that the Tribunal finds the applicant to be a credible witness who gave a truthful and consistent history of her symptoms.
With respect to the medical evidence, the Tribunal accepts that, as contended for by the applicant, there is an overwhelming weight of medical opinion that the applicant suffered pain in her right neck, shoulder and arm on and from 8 June 2000 which was caused by her work conditions.
The Tribunal rejects the submission made by the respondent that the duties were not constant and repetitious duties. The Tribunal is persuaded to this point of view by the evidence of Dr Scott, an Occupational Physician who had first-hand knowledge and experience of night sorting duties and Dr Buczynski, an Australia Post nominated doctor who also was very familiar with the applicant's workplace duties.
The respondent contended that it was difficult to say the applicant had a work-related problem because of her application for full-time employment, her work pattern and her holiday period during the first half of the year 2000. The respondent contended further that the clinical notes of Dr Guirguis showed that the applicant suffered anxiety and stress and that this condition had not been properly considered by the various doctors apart from Dr McGill and Dr Guirguis. The Tribunal accepts that the respondent's concerns are valid. However, on balance, the Tribunal is satisfied that these concerns are not of sufficient weight to stand in the way of a finding that the applicant's pain in her right neck, shoulder and arm is as a result of chronic overuse, that this condition is an injury as defined in Section 4 of the Act and that this injury is work-related.
With respect to incapacity, the applicant ceased work on 14 August 2000 and returned to work on 28 May 2001. The Tribunal is satisfied, based on the medical evidence before it, that the applicant was incapacitated for work during this period.
After careful consideration of all of the material before it and the submissions made by both parties, the Tribunal finds that the applicant was incapacitated for work for the period 14 August 2000 to 28 May 2001 as a result of a work-related injury and that the respondent is liable to pay compensation for this incapacity pursuant to Sections 14 and 19 of the Act. Further, the Tribunal finds that pursuant to Section 16 of the Act the respondent is liable to pay the cost of medical treatment reasonably obtained by the applicant during the period of her incapacity.
The Tribunal sets aside the decision under review and in substitution therefor determines that the applicant suffered an injury, pursuant to Section 4 of the Act, to her right shoulder and neck on or about 8 June 2000 as a result of work-related chronic overuse.
The Tribunal further determines that the respondent is liable to pay compensation to the applicant, pursuant to Section 19 of the Act, for incapacity for work because of this injury for the period 14 August 2000 to 28 May 2001 and that the respondent is liable, pursuant to Section 16 of the Act, to pay the applicant's reasonable costs of medical treatment obtained during this period. The Tribunal further directs that the respondent pay the applicant's costs as agreed, or failing agreement, as taxed by the District Registrar of the Tribunal in accordance with the Tribunal's Practice Direction.
This decision is a decision favourable to the applicant and the Tribunal remits the matter to the respondent for determination of the compensation payable to the applicant in accordance with these reasons for decision.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr IR Way, Member
Signed:         Denise Burton
  Secretary
Date/s of Hearing  21.5.01
Date of Decision  5.7.01
Counsel for the Applicant        Mr R Livingston
Solicitor for the Applicant         Messrs Gary Robb & Associates
Counsel for the Respondent    Ms R Henderson
Solicitor for the Respondent    Messrs Graham Jones, Lawyers