McCartin and Australian Postal Corporation
[2002] AATA 931
•16 October 2002
DECISION AND REASONS FOR DECISION [2002] AATA 931
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1498
GENERAL ADMINISTRATIVE DIVISION )
Re Karen McCartin
Applicant
And Australian Postal Corporation
Respondent
DECISION
Tribunal Ms S M Bullock, Senior Member Dr J D Campbell, Member
Date16 October 2002
PlaceSydney
Decision The decision under review is set aside pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and in substitution therefor the Tribunal decides that: (1) Pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, the Respondent is liable to pay compensation for Ms McCartin's left shoulder injury from the date of claim and continuing. (2) Pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988, the Respondent is liable to make weekly payments for incapacity arising out of the Applicant's workplace injury from the date of claim and continuing. (3) Pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988, the Respondent is liable to pay the Applicant's reasonable medical treatment costs from the date of claim and continuing. (4) The Respondent is to pay the Applicant's reasonable legal costs in this matter as agreed or assessed.
..............................................
Ms S M Bullock Presiding Member
CATCHWORDS
WORKERS COMPENSATION - Australian Postal Corporation - Incapacity - Shoulder injury - Medical expenses
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 - ss 4, 14, 16, 19
AUTHORITIES
Treloar v Australian Telecomunications Commission (1990) 26 FCR 316
Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533
Commonwealth v Beattie (1981) 35 ALR 369
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Rodriguez v Telstra Corporation Limited [1999] FCA 1400
Favelle Mort Ltd v Murray (1976) 133 CLR 580
REASONS FOR DECISION
16 October 2002 Ms S M Bullock, Senior Member Dr J D Campbell, Member
This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by the Applicant, Ms Karen McCartin, of the reviewable decision made by the Respondent, the Australian Postal Corporation, dated 22 August 2000, which decided that compensation was not payable for Ms McCartin's claim for "spur shoulder" (T20). The reconsideration decision affirmed a decision of a Delegate of the Respondent, dated 21 July 2000 (T16).
A hearing was held before the Tribunal in Sydney on 25 February 2002. Ms McCartin provided oral evidence at the hearing. Dr J S Quain, Orthopaedic Surgeon, provided evidence by telephone, as did Dr N W McGill, Consultant Rheumatologist. Ms McCartin was represented by Mr G Wilson of Counsel and the Respondent was represented by Ms R Henderson of Counsel. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T27) and the following exhibits:
Exhibit No Description Date
A1 Report of Dr J F Davis, Occupational Physician 11 December 2000
A2 Further report by Dr J F Davis, Occupational Physician 19 February 2002
A3 Clinical Notes of Dr A Small, General Practitioner, Waterloo Medical Centre Various
R1 Report of Dr N W McGill, Consultant Rheumatologist 1 August 2001
LEGISLATION
A determination in this matter requires consideration of the Safety, Rehabilitation and Compensation Act 1988 ("the Act").
Section 4 of the Act deals with interpretation and specifically subsection 4(1) provides:
"4.1 In this act, unless the contrary intention appears:
…
"injury" means:(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being 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 a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment."
Section 14 of the Act deals with compensation for injuries and as relevant states:
"Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.…"
Section 16 of the Act deals with compensation for medical and other treatment expenses and as relevant states:
"Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.…"
Section 19 refers to compensation for injuries resulting in incapacity and as relevant states:
"Compensation for injuries resulting in incapacity
19. (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay compensation to the employee in respect of the injury, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount calculated under the formula:
NEW - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to earn in suitable employment.
…"
ISSUES
The issues in this matter are:
(1) Whether or not Ms McCartin has suffered an injury under the provisions of the Act; and if so,
(2) Whether or not Ms McCartin is entitled to weekly compensation payments for incapacity under the provisions of section 19 of the Act; and
(3) Whether or not Ms McCartin is entitled to reasonable medical and treatment costs pursuant to section 16 of the Act.
EVIDENCE OF MS KAREN MCCARTIN
Ms McCartin was born on 5 December 1962 and is aged 39 years. She left secondary school in 1977 and undertook various types of employment including in retail stores and sandwich shops for a period of approximately ten years.
In March 1993, Ms McCartin commenced work as a cleaner with Australia Post. She continued to work as a cleaner for approximately three and a half years until December 1996. Ms McCartin told the Tribunal that on 6 December 1996, she commenced duties as a postal delivery officer at the Milson Point Post Office working from most usually 5.15am until 3pm. Ms McCartin described her duties as sorting and sequencing mail into delivery bundles for approximately four or five hours. She would then spend up to one hour tying up the mail ready for delivery. The sorting was undertaken by street name and number, Ms McCartin stated. It was up to her as to how she set up the sorting pigeonholes contained within a frame which was in front of her. Ms McCartin stated that she had quite a large postal run. She sorted usually into 30 pigeonholes, half of which, she stated, were above her shoulder height. The Tribunal noted earlier evidence of sorting into approximately 40 pigeonholes. Ms McCartin is five feet eight inches tall and she estimated that the pigeonhole height was six feet three inches. In all, Ms McCartin described her duties as sorting mail, sequencing it, tying it into bundles and then delivering.
Specifically in relation to sorting, Ms McCartin explained that this required her to hold in her left hand as many letters in a bundle as possible. The letters were then sorted into the pigeonholes with her right hand. Large letters were folded over to allow them to be placed in the pigeonhole. After sorting the mail into the frame, Ms McCartin would then pull the sorted bundles of mail out from each pigeonhole and secure them with a rubber band. She would use both hands for this process. The bundles could weigh between two or three kilograms.
Delivery duties required Ms McCartin to push a mail buggy with her left hand while delivering the letters into mail boxes with her right hand. Delivery would take approximately three and a half hours and her delivery beat comprised of the Milson Point and Kirribilli area, which is very hilly. The mail buggy was pushed up hills and then she would drag it downhill. Sometimes, Ms McCartin experienced left shoulder pain pushing the trolley, she stated. The pain in her shoulder felt like someone was sitting on it, she explained to the Tribunal.
Ms McCartin stated that she had had no problems at Australia Post until about June 1999, when she experienced sharp pain in her left shoulder. She stated that she was at work at that time, pulling mail out of the sorting frame with her hands raised. She may have called out in pain when this occurred but does not know whether the person working next to her had heard her cry of pain. Ms McCartin further stated that she continued working and did not report this incident of pain. Ms McCartin stated that she continued to work with this pain over the next few months, not wanting to bother anyone with her complaints. The problem did however worsen and she recalled that she saw her General Practitioner, Dr Small, during the second half of 1999. On further questioning, Ms McCartin considered that she possibly had spoken to Dr Small in August 1999 about the pain in her left shoulder. Ms McCartin did not recall talking to Dr Small about any wrist pain or about bruising of her left arm. She did recall consulting Dr Small in 1999 about the swelling of her left arm after a pain killing injection. Ms McCartin also did not recall having an x-ray of her left wrist in late 1999. She thought that she might have had a chest x-ray in 1999. Furthermore, when referred to Dr Small's Clinical Notes, Ms McCartin did not recall consulting him for a contusion and bruising of her left arm and being sent for an x-ray because of the possibility of a fracture. Ms McCartin also did not recall undertaking light duties at work during October 1999.
Later under cross-examination, Ms McCartin told the Tribunal that around 18 October 1999, she was out with friends and found herself in a situation where she attempted to break up a fight between two of her friends. When she did this, her left wrist was in the way and she was punched. Her wrist was bruised but not fractured. There was a very bad strain arising out of which she had one day off work. Ms McCartin denied having a left sore shoulder as a result of this incident. Ms McCartin stated that she had not remembered this incident earlier in her evidence because it was four years ago. As she had later recalled, the doctor wrapped her wrist up. Ms McCartin stated that it was in December 1999 that she went to see her doctor about pain in her shoulder, not in her wrist. It was also in March 2000 that she consulted Dr Small again about pain in her left shoulder and not her left wrist.
Ms McCartin was referred to Dr Small's Clinical Notes (Exhibit A3) which recorded that in December 1999 she consulted him with a history of three months of left shoulder pain. In about January 2000, Ms McCartin believed that Dr Small referred her to an Orthopaedic Surgeon, Dr J S Quain. Ms McCartin stated that Dr Quain administered two pain killing injections and at first, there was no relief however subsequently there was. Following a further injection, which did not provide any symptomatic relief, Dr Quain recommended surgery and Ms McCartin consequently had her name placed on a waiting list for this surgery.
Ms McCartin next consulted Dr Small on 17 March 2000. In March 2000, Dr Small recorded pain since June 1999. While temporary relief had been provided by pain killing injections, she continued to put up with the pain as she did not wish to bother anyone. Ms McCartin was told by her employer that she was unfit for work and accordingly did not work for the period 26 September 2000 until 26 November 2000. She then returned once more to light duties for about three months, which included office work and no lifting or raising of her hands and arms above her head. These duties were a great deal easier, Ms McCartin stated.
Ms McCartin made a claim for compensation signed by her on 1 June 2000 but completed by the manager of the area on 31 May 2000 (T12). Ms McCartin told the Tribunal that her supervisor helped her to complete the claim form. Ms McCartin stated that she did not submit a claim for her left shoulder injury any earlier because she did not want to inconvenience anyone. She put up with the pain until she could take it no longer and following the lack of continued relief from injection and conservative treatment, Dr Quain recommended surgery.
In an Incident Report dated 1 June 2000 (T11, p44), Ms McCartin had noted that she had a left shoulder problem as a result of "lifting and sorting heavy mail, repetitive action". Ms McCartin stated that she completed the claim form except for Part Four which her supervisor, Angela, completed. Ms McCartin told her supervisor that she had the sudden onset of pain when she was sorting mail and also mentioned lifting "heavy depot bags".
Ms McCartin recalled a Workplace Assessment undertaken by Ms Heydi van Mourik, Occupational Physiotherapist on 4 May 2000, the report of which was written on 8 May 2000 (T9). Ms van Mourik reported that Ms McCartin had woken up with a sudden pain in the left shoulder and she could not recall any incident or accident which may have led to the development of left shoulder problems (T9, p39). Ms McCartin stated that she had told the Occupational Physiotherapist that she experienced pain when using the mail sorting frame. Ms McCartin also denied that in 10 July 2000 she had told Dr J C Downes, Orthopaedic Surgery Consultant, that she had woken up one morning with a sore shoulder, assuming that she had slept on it (T15, p55). Ms McCartin told the Tribunal that during that time in her life she may have woken up many times with pain in her left shoulder. She tried during that period to live as normally as possible and just to continue with her daily work and other activities.
On 6 February 2001, Dr Quain operated on Ms McCartin in St Vincent's Hospital, performing a decompression of the left shoulder. She was off work until approximately June 2001, resuming on light duties for a period.
Ms McCartin stated that currently she may sometimes experience a twinge in her left shoulder since the surgery. She also noted that the mail sorting frames have been changed and she now uses a "V Sort frame" which arrived in 2001. The sorting process is easier because Ms McCartin does not have to reach so high to put the mail in the pigeonholes. Ms McCartin stated that she can cope with all her duties now.
The Tribunal was informed about Ms McCartin's netball activities. She commenced playing netball approximately eight years ago, playing first in the D Grade competition. She subsequently rose to play in the C Grade competition. Ms McCartin stated that she mainly used her right arm when playing. Ms McCartin further stated that she ceased playing in 1999 because of her left shoulder problem. She explained that she had also changed position at one stage to that of wing which was less demanding. Ms McCartin had previously played in the inner circle as a goal defence. Ms McCartin had ceased playing after her operation for a period. When her shoulder and arm were recovered after surgery, she resumed playing. Ms McCartin informed the Tribunal that she was playing netball up to the Monday before the hearing. When the main netball season finished, she then played in a night competition. During the winter season, games were played over one hour, while the night competition, of which there were six games, were for a shorter period.
Ms McCartin stated that there were two or three matches in which her left shoulder had been too painful and she would then sometimes sit off the field or carry out umpire duties. Ms McCartin estimated that during the winter season she would play 15 hours in total. During the period that she played netball, Ms McCartin stated that she had experienced no injuries to her left arm or shoulder or any other injury. Under cross-examination, Ms McCartin also stated that she had twice fractured her left foot and as a result took leave. This was some years ago. Ms McCartin stated that she also took leave from when her husband was sick with a heart problem.
When questioned as to her having told various doctors a different history about her left shoulder, Ms McCartin stated that she had told the truth to all the doctors who had examined her. She consulted Dr Davis as this was organised by her solicitor. Ms McCartin had told various doctors of her circumstances and stated to the Tribunal that they had not recorded her history correctly.
EVIDENCE OF DR J S QUAIN, ORTHOPAEDIC SURGEONDr Quain provided a number of reports: 31 March 2000 (T7); 19 April 2000 (T8); 31 May 2000 (T13); 31 July 2000 (T17).
On 31 March 2000, Dr Quain noted Ms McCartin had developed pain, tendonitis and impingement in the left shoulder with difficulty in movement of internal rotation, flexion and pure abduction. Dr Quain noted that Ms McCartin felt that she had lost strength in her left shoulder. Dr Quain confirmed that x-rays of Ms McCartin's left shoulder indicated some sclerosis with a curving of the acromion. Ultrasound examination showed impingement of the left shoulder but no tear. Initially, Ms McCartin had two subacromial injections. On 19 April 2000, on review, Dr Quain noted some improvement of the left shoulder pain and provided an injection. A further injection was later given. Ms McCartin continued to work. On 31 May 2000, Dr Quain noted that the second injection had provided no pain relief to Ms McCartin and he noted a history of subacromial impingement symptoms and signs continuing for more than eight months. Dr Quain advised Ms McCartin's General Practitioner, Dr A Small, that Ms McCartin should have a subacromial decompression. On 31 July 2000, Dr Quain further reported to Rehabilitation Counsellor, Ms F Yamani, that Ms McCartin had a left shoulder rotator cuff impingement and possible tear. Dr Quain noted that there was no disagreement between himself and Dr Downes that Ms McCartin would require surgical treatment. Dr Quain further noted that Dr Downes agreed that Ms McCartin's problem had worsened during the course of her employment. The only point of contention appeared to be the initiating cause or event for her left shoulder condition. Dr Quain noted that while causation was not clear, in his opinion, as Ms McCartin's condition had worsened as result of her work as a postal officer, she should be covered by workers compensation. Dr Quain pointed out that at the age of 37, "one can hardly blame degenerative changes for her problem" (T17, p67).
At hearing, Dr Quain noted that Ms McCartin's duties were pushing a postal buggy as a postal delivery officer. He stated that Ms McCartin's left shoulder problem did not arise out of any single event. Dr Quain noted that Ms McCartin was born in 1962 and he did not consider that her left shoulder problems were related to age - degenerative changes. Dr Quain believed that the work situation had contributed to Ms McCartin's left shoulder condition. From x-ray examination, Dr Quain noted that Ms McCartin is likely to be prone to the condition from which she suffers. Considering netball, and a history of playing approximately 15 times per year initially in the D Grade and then in the C Grade competition and being a right hand dominant player, Dr Quain did not consider that that sport would particularly contribute to her left shoulder problems. Dr Quain had referred to Ms McCartin's netball activity as basketball.
Dr Quain opined that lying on the effected left shoulder during sleep could cause pain. He further opined that when Ms McCartin first experienced pain, then this could be when the impingement began. Ms McCartin has a sclerosis of the acromion and because of that curved shape, there is an underlying vulnerability to this type of impingement condition. The ultrasound which indicated the curved shape of the acromion provides a dynamic test result, Dr Quain noted.
Considering his notes, Dr Quain concluded that the left shoulder problem had occurred over a number of months and there was no single incident apart from lifting the mail and dealing with it.
Dr Quain pointed to two possible mechanisms for the occurrence of Ms McCartin's condition. Firstly, there could be acute strain to the tendon causing swelling or, the more likely scenario, that with repetitive movement of the left arm, abduction and putting mail into pigeonholes over 30 times per day, inflammation could result. Dr Quain also noted that each person has individual responses to such activity. If such activity was undertaken once per week then that would not cause a problem but 30 times or more per day, five days a week will produce a problem. Having said that, Dr Quain stated that the causation of impingement is often difficult. The history he had taken in terms of Ms McCartin's delivering mail was that she held it in her left arm on the run and delivered with her right. Dr Quain was not so sure about the history of sorting of mail.
EVIDENCE OF DR N W MCGILL, CONSULTANT RHEUMATOLOGISTDr McGill provided a report dated 1 August 2001 (Exhibit R1). Dr McGill examined Ms McCartin on 1 August 2001.
Dr McGill noted Ms McCartin developed an aching in her left shoulder region in about June 1999 and that she could not recall any specific event or injury either at work or playing netball. Ms McCartin was referred by her General Practitioner to Dr Quain who administered injections to the left shoulder. Surgery was undertaken on 6 February 2001. Dr McGill noted that Ms McCartin ceased netball at the time her shoulder pain commenced. Her shoulder remained painful, Dr McGill reported, despite cessation of netball and the subsequent cessation of her postal delivery officer duties. In relation to her symptoms at the time of Dr McGill's examination, Ms McCartin was reported by Dr McGill to have generally no symptoms in the left shoulder region although if she lifted something heavy, she occasionally felt twinges.
On examination, Dr McGill noted that Ms McCartin had no muscle wasting and a nine centimetre scar over the anterior aspect of her left shoulder consistent with rotator cuff decompression. Dr McGill noted that Ms McCartin demonstrated full and fluent shoulder movements in all directions bilaterally and there was a full range of movements of all other upper limb joints. Tests for impingement were negative and reflexes and sensation in the upper limbs were normal and symmetrical. Dr McGill noted that Ms McCartin's neck movement was full in all directions. Apart from the surgical scar, Dr McGill reported that Ms McCartin's examination was entirely normal with no reports of discomfort or tenderness. Ms McCartin had continued to have symptoms despite the cessation of netball and the subsequent cessation of her postal delivery officer duties. Her pain continued until surgery and since that time she has lost almost all of her symptoms.
The diagnosis confirmed by Dr McGill is left rotator cuff impingement without rotator cuff tear and this condition has been cured by surgery. Dr McGill opined that it is unlikely that Ms McCartin's impingement symptoms were related to her work duties. In this regard, Dr McGill noted that Ms McCartin reported that she used her right hand for sorting and delivering mail. The left hand was used to pull a mail buggy weighting up to 16 kilograms. That action did not involve, Dr McGill concluded, abduction of the left shoulder and was not of the type of movement to irritate or cause impingement. Dr McGill noted that impingement symptoms can develop spontaneously without any external cause. Dr McGill further concluded that Ms McCartin's netball activities, although only performed for one game per week, would have been substantially more forceful and have involved more abduction and elevation of the left arm above the shoulder height than her work duties. Dr McGill concluded that Ms McCartin had received appropriate treatment, which had produced an excellent result. Dr McGill agreed with Dr Quain's assistant who had recommended that Ms McCartin was fit to return to her full normal duties. There did not need to be any restriction in relation to the type of work that Ms McCartin performed.
At hearing, Dr McGill noted Ms McCartin's work history that she used her right hand to sort and deliver mail. Specifically, in October 1999, the history, as Dr McGill understood it, was that Ms McCartin was punched when she was trying to break up a fight. Dr McGill opined that this would irritate her existing problem but he did not expect that it would cause substantial irritation to the supraspinatus tendon.
In terms of her constitutional make up, Dr McGill noted the curvature of the left acromion. He further noted that if there was lifting of the left arm, which was repetitive, that would be of some significance. Having stated that, Dr McGill added that he would need to know the extent that Ms McCartin's duties required repetitive and continuous lifting over a long period of time. While that type of activity could be significant, Dr McGill reiterated at hearing his opinion in his written report that people can develop impingement without apparently causative movements or an incident. If there was repetitive movement over a period, Dr McGill agreed that a person is more likely to develop supraspinatus tendonitis. If this activity occurred between 100 and 150 times consistently over time, than that would be vigorous activity and would cause problems. With Ms McCartin's history between December 1996 and June 1999, sorting five hours per day, five days per week, using both arms to sort the mail with the right hand, then dropping the mail into the left hand followed by holding bundles of between one and two kilograms at least 30 times each shift, this would not necessarily be sufficient to cause the problems experienced by Ms McCartin, Dr McGill opined. Dr McGill further opined that if Ms McCartin had developed impingement of the right shoulder instead of the left shoulder, then that may have better fitted in with a significant contribution by work, given that Ms McCartin is right hand dominant. Furthermore, given the history of Ms McCartin pushing the mail buggy up and downhill for approximately three hours each day, Dr McGill opined that this would not have affected Ms McCartin's left shoulder.
In relation to netball activity generally, Dr McGill noted it is more common to catch the ball with both hands and pass with both hands. The goal shooter uses both arms to obstruct. Furthermore, Dr McGill noted that defending in netball was quite common and it would be an unusual netballer, who did not use blocking tactics. Dr McGill opined that netball would be a more difficult activity for Ms McCartin than her work. Dr McGill concluded that there could be some aggravation to Ms McCartin's left shoulder at work but this effect has long since ceased.
DOCUMENTARY EVIDENCE OF DR J F DAVIS, OCCUPATIONAL PHYSICIANDr Davis provided two reports dated 11 December 2000 (Exhibit A1) and 19 February 2002 (Exhibit A2).
Dr Davis noted, in his report of 11 December 2000, Ms McCartin's complaints of constant left shoulder pain, reduced range of movement of the left shoulder and being unable to undertake any pushing or pulling activity with her left arm. Furthermore, Dr Davis noted that Ms McCartin could not reach with her left arm and her left shoulder pain and discomfort caused her sleep disturbance. Dr Davis also reported that Ms McCartin's left shoulder symptoms were aggravated when driving a motor vehicle unless it was equipped with power steering. At the time of writing, Dr Davis noted that Ms McCartin was unable to play netball, was inhibited in her social activities and normal domestic chores. There is also a restriction in Ms McCartin's sexual activity because of left shoulder pain.
On examination, Dr Davis noted some small amount of wasting around the left shoulder although there was no protraction of the scapulae and no elevation or depression. There was marked tenderness over the supraspinatus tendon and also anteriorly over the left shoulder. From x-ray and ultrasound of the left shoulder taken on 15 December 1999, Dr Davis reported evidence consistent with impingement of the supraspinatus.
Dr Davis opined that Ms McCartin was suffering from a rotator cuff injury with impingement at the left shoulder which was entirely consistent with repetitive reaching and lifting which she undertook whilst employed at Australia Post. In the absence of any operative intervention, Dr Davis opined that Ms McCartin was permanently unfit for her pre-injury duties. He opined that she required an acromioplasty and that the lost time from work would be up to four or six months. Dr Davis concluded that Ms McCartin's left shoulder condition was entirely consistent with the nature and conditions of her employment which was a substantial contributing factor. Dr Davis indicated that at the time of reporting, Ms McCartin was suffering 15 per cent permanent impairment of the whole person.
In his subsequent report of 19 February 2002, Dr Davis noted that the work Ms McCartin undertook was of a repetitive nature and involved reaching above shoulder height in order to access her mail frame and retrieve bundles of mail. Such work, in Dr Davis' opinion, was entirely consistent with the onset of an inflammatory response with tendonitis and subsequent impingement syndrome. The left shoulder surgery was therefore work-related and he expected that following surgery, Ms McCartin would require at least three months off work for recovery and rehabilitation. Dr Davis opined that Ms McCartin's major restriction after surgery would be undertaking any work above mid chest level or any repetitive or heavy work with her left upper extremity.
DOCUMENTARY EVIDENCE OF DR J C DOWNES, ORTHOPAEDIC SURGERY CONSULTANTDr Downes provided a report dated 10 July 2000 to Australia Post (T15).
Dr Downes provided a history of Ms McCartin complaining of her troublesome left shoulder which started abruptly in June 1999. Dr Downes noted that Ms McCartin woke up one morning with a sore left shoulder and had assumed that it was sore because she must have been lying on it during her sleep (T15, p55). Dr Downes noted Ms McCartin's symptoms of not being able to make sudden movements of the left arm without there being pain. When she elevated her left arm, as required for combing her hair or pegging something out on the clothesline, there was an arc of pain and the left shoulder was quite sore. Dr Downes reported that these symptoms are consistent with impingement syndrome. Dr Downes noted that Ms McCartin's General Practitioner made such a diagnosis and injected seven injections into her left shoulder. This did not help and Ms McCartin was subsequently referred to Dr Quain, Orthopaedic Surgeon. Dr Quain administered two injections of cortisone with local anaesthetic into the subacromial bursa or into the attachment of the supraspinatus tendon to the bone. Dr Downes noted that this is standard treatment and in a large percentage of patients, would cure the problem. Dr Downes noted Ms McCartin reporting to Dr Quain of the worsening of the left shoulder symptoms in the three months after March 2000.
Dr Downes reported that Ms McCartin was genuine and well motivated with a bad left shoulder. He considered that she has a genuine rotator cuff problem that was at the time of Dr Downes' report "fairly acute and advanced…".
Dr Downes noted that rotator cuff disease is a very complex subject. It is partly degenerative and as a person gets older, the degenerative wear becomes predominant. Therefore, most patients past a certain age have rotator cuff problems, not because of the nature of their work, but because they are dealing with a degenerative condition. Conversely, the majority of patients who are under 40 years of age, Dr Downes reported, have more of an element of tearing. Dr Downes gave the example of Pat Rafter, the tennis player, and Shane Warne, the cricket player, who have had surgery for their rotator cuff because of the type of activity they undertake. Dr Downes opined that in Ms McCartin's job, most of the job did not involve lifting her arm above her shoulder height. Furthermore, Dr Downes opined that it is irrelevant that Ms McCartin tends to deliver the mail using her left hand. Dr Downes noted that Ms McCartin is dominantly right handed. It is very unlikely that the type of work Ms McCartin was doing caused the problem even if the type of work tends to cause irritation. Furthermore, Dr Downes noted, that Ms McCartin plays netball and he opined that there could be no way that the forces through the shoulder from netball would not be substantially worse than the forces through the shoulder from Ms McCartin's day to day activities with Australia Post. Dr Downes noted Ms McCartin's evidence to him that she had played netball at a competitive level until her left shoulder became sore. She had been only delivering mail for three years. It is debatable, Dr Downes opined, as to whether to Ms McCartin's work is the major cause of her problem.
Dr Downes concluded that Ms McCartin has a fairly advanced left sided supraspinatus impingement syndrome due to rotator cuff inflammation. He further opined that there may be a connection between this condition and Ms McCartin's work in that once a person develops a supraspinatus tendonitis, then the type of work that Ms McCartin was doing, placing mail into various mailboxes, would irritate her shoulder and make it sore. While Dr Downes opined that a possible connection exists between work and the condition, he opined that it was far more likely that there were other larger factors in producing the left shoulder problems such as netball. Dr Downes had no hesitation in saying that the major underlying problem is a degenerative one affecting the rotator cuff. Work therefore was not a substantial contributor to the problem. However, Dr Downes further opined that the effects of Ms McCartin's employment do continue, although he noted that at the time of his report, Ms McCartin was on restricted duties. Regardless of whether Ms McCartin was undertaking her work duties, Dr Downes concluded that she would still suffer the problem. Ms McCartin had developed an impingement syndrome which can occur in anybody and does not have to relate to the type of work one does nor to the repetitive nature of how it is done. Dr Downes thought that the effects of the employment had ceased and what was now requiring attention was Ms McCartin's rotator cuff problem. Dr Downes recommended surgery and believed that such an approach would have a good chance of curing Ms McCartin's left shoulder problem.
DOCUMENTARY EVIDENCE OF DR A SMALL, GENERAL PRACTITIONERIn Dr Small's Clinical Notes (Exhibit A3), there is a report of 14 December 1999 of ongoing pain in the left shoulder for more than three months with a note for further review. On 17 March 2000, Dr Small reported that Ms McCartin had a pain in her left shoulder which had been present since June 1999. A referral was made to Dr Quain. On 15 June 2000, a further entry in the Clinical Notes indicated that Ms McCartin's shoulder was worse and that she could not lift her left arm above shoulder level.
There is an entry in the Clinical Notes from Sydney X-Ray dated 18 October 1999 in relation to x-ray of the left forearm and wrist.
SUBMISSIONSMr Wilson submitted that Ms McCartin is a witness of credit and she provided truthful evidence. This was noted by the medical experts including Dr Downes.
Referring to Dr McGill's evidence, Mr Wilson submitted that despite all the material put to Dr McGill, he was not prepared to concede the repetitive nature of Ms McCartin's duties and the impact they had on her impingement syndrome. The opinion of Dr Quain should be preferred, Mr Wilson submitted, because Dr Quain looked at all of the evidence including the x-rays. Dr McGill did not have the benefit of these objective investigations. Furthermore, Dr Quain is an expert in shoulder surgery. Dr Quain had never seen an injury such as Ms McCartin's arising out of basketball. Considering the Respondent's submission that in Ms McCartin's case, netball is an intervening factor, Mr Wilson submitted that neither Dr Downes nor Dr McGill had a full history of Ms McCartin playing only 15 games of netball per year. Ms McCartin has been consistent in her evidence about this, Mr Wilson submitted.
There is "rock solid" evidence that Ms McCartin's duties in June 1999 saw the onset of the condition, Mr Wilson contended. Furthermore, Dr Quain saw her before surgery and after. He is the treating doctor and is in a unique and far better position to offer a more complete professional opinion than is either Dr McGill or Dr Downes who only saw Ms McCartin once for the purpose of compiling a medico-legal report.
Mr Wilson noted that in relation to her left wrist injury three years ago, Ms McCartin had forgotten about this. This is not a deliberate attempt to mislead the Tribunal, Mr Wilson submitted. On all the evidence, Mr Wilson contended that in June 1999 it should be accepted that Ms McCartin experienced left shoulder pain and this is a work-related condition. There is no other possible cause, which could explain it, Mr Wilson further contended. Ms McCartin continued working with the problem until it became so bad, that she sought medical attention. She was put off work by Australia Post in September 2000 but in total only had two periods away from work. The first, because she was told to temporarily cease work and the second, following surgery. In all of the circumstances Mr Wilson contended that Ms McCartin had a work-related left shoulder condition and the Respondent was liable to pay her incapacity payments in addition to reasonable medical treatment costs.
Ms Henderson submitted that there is no dispute as to the current diagnosis of Ms McCartin's condition. The issue is causation.
Ms Henderson submitted that contrary to Mr Wilson's submission concerning the consistency of Ms McCartin's evidence, there are many instances of inconsistencies. Referring to Dr Small's Clinical Notes (Exhibit A3), Ms Henderson submitted there is nothing recorded about the upper left shoulder until 18 October 1999 where there is a reference to a contused left forearm arising out of Ms McCartin's breaking up a fight. It is noted on 19 October 1999 that there is no fracture and Ms McCartin was provided with a certificate for light duties. The next entry in Dr Small's Clinical Notes occurs on 14 December 1999, where there is a reference to ongoing pain in Ms McCartin's left shoulder for more than three months. A review is noted by Dr Small, however Ms McCartin did not attend Dr Small again until 17 March 2000 when there is a further reference to the left shoulder being painful and a referral was then organised for Dr Quain. The Clinical Notes did not record problems of Ms McCartin getting mail down out of pigeonholes, but noted the history of pushing a mail buggy around. Furthermore in consideration of Dr Quain's reports, there is no reference to reaching up to the mail sorting frame nor of using the left and right hand to get the mail.
Considering the Workplace Assessment (T9, p39), Ms Henderson submitted that Ms van Mourik, Occupational Physiotherapist, noted that Ms McCartin woke up with a sudden pain in her left shoulder and Ms McCartin could not recall for Ms van Mourik any accident or incident that may have led to the development of the left shoulder problems. Furthermore, Ms Henderson noted that Dr Quain had opined that lying on the shoulder during sleep could cause a pain.
Ms Henderson referred the Tribunal to Dr Downes' report dated 10 July 2000 (T15), in which he noted a history of the left shoulder symptoms starting abruptly, with Ms McCartin waking up one morning with a sore shoulder.
Dr Davis gave a history of the condition happening at work. Ms Henderson submitted that on a consideration of all of the evidence, there is far from consistency. The earliest that Dr Small recorded left shoulder problems was in December 1999. Ms Henderson submitted that on all of these different accounts provided by the various doctors who have examined and/or treated Ms McCartin, it is stretching belief, that all the doctors including Dr Davis got it wrong. Therefore the different histories must be taken into account, Ms Henderson submitted. The issue of credibility is thus clearly in contention.
Ms Henderson submitted that the medical evidence is that impingement syndrome can occur without provocative incident. Ms McCartin may honestly have tried to explain the onset of her left shoulder problems by work, but in fact the problem could have occurred without any incident whatsoever. While Dr Quain was strongly of the view that there was a causal relationship between Ms McCartin's work and her left shoulder problem, he had not taken into account the different histories provided to various other doctors in this matter.
Ms Henderson contended that Dr McGill's opinion was more consistent with the histories. In this regard, Dr McGill stated that there must be an ongoing repetitive activity of the left limb. Ms McCartin's evidence does not fit the pre-conditions laid out by Dr McGill and in fact, she was using both arms to lift down and bundle the mail. Furthermore, Ms McCartin's evidence was that half of her work was about shoulder level increasing up to a height of six feet three inches. Ms McCartin is five feet eight inches tall and, in Ms Henderson's submission, clearly less than half of her work would have been carried out above shoulder height. Ms Henderson furthermore submitted that Ms McCartin could sort the mail on the desk in front of her. Thus at least half of her duties could be done at waist level. Not all of the sorting boxes were high and Ms McCartin's evidence was that she only had to reach up on 30 occasions per session.
Ms Henderson submitted that the activity in netball was more vigorous than Ms McCartin's activity at work. It would be unusual in netball to rely only on one arm, Ms Henderson submitted. While it was accepted that Ms McCartin would only play netball once per week, this single activity placed more strain on the supraspinatus tendon, Ms Henderson submitted, based on Dr McGill's evidence.
Referring to Dr Quain's opinion, his specialty is in hips, knees and shoulders, not just shoulders, Ms Henderson submitted. Furthermore, Dr Quain gave evidence in relation to Ms McCartin playing basketball and not netball, which is a very different game. In netball, Ms Henderson submitted that players are not able to move as much.
In relation to the issue of aggravation of the left shoulder condition, Dr Quain's and Dr Davis' evidence is not clear, Ms Henderson submitted. In order to link aggravation to the left shoulder condition through work, it had to be shown that the nature of the injury has worsened. Ms Henderson referred the Tribunal to the High Court decision in Asioty v Canberra Abattoir Pty Ltd (1989) 167 CLR 533 at 540 in which Toohey J stated:
"While it is apparent that an aggravation of the appellant's underlying dermatitis may take the form of immediate incapacitating symptoms, the existence of some more permanent aggravation is not precluded because those symptoms abate on each occasion that the appellant ceases work. The proper conclusion is that the condition of the appellant's hands, with their now enhanced susceptibility to dermatitis, has intensified the disease from which the appellant suffers. This enhanced susceptibility constitutes an aggravation of the disease and, in the circumstances, falls within the language of the Ordinance."
Ms Henderson submitted that Ms McCartin has a natural history of developing impingement of the supraspinatus tendon which will limit the work she can do. There is no causal link to work, however. In Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323, the Full Federal Court referred to the use of the word "material" for the purposes of the Compensation (Commonwealth Government Employees)Act 1971 and noted :
"The use of the word "material" in conjunction with the words "contributing factor" in the legislation, where it has occurred in expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It has served only to emphasise that the section is not brought into play unless it be established by evidence that features of the employment did in fact and in truth contribute to the condition complained of. The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small."
Further in Treloar v Australian Telecommunications Commission (supra) at 323, the Federal Court stated:
"[I]t follows… that once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed", and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation, then it matters not whether the contribution was of any particular size or degree…In all cases the question is whether there has been a "contribution"."
For Ms McCartin to succeed in this matter, Ms Henderson submitted that there would have to be a material contribution to her left shoulder condition by her work. On the evidence before the Tribunal, Ms Henderson contended that it has not progressed on the material before the Tribunal from the realms of the "possible" to the "probable". Dr Quain speaks of the possible work contribution to Ms McCartin 's left shoulder condition. Dr McGill placed far greater reliance on netball as the stressor in Ms McCartin's left shoulder condition. Ms McCartin was not playing a "hit and giggle" game. Ms Henderson submitted that Ms McCartin commenced playing in the D grade competition but through competition, progressed to C Grade, presumably because the team was competitive. Ms McCartin was also playing night games of netball.
Ms Henderson submitted that it was not being suggested that Ms McCartin was hiding evidence, but that she was merely trying her best to explain her condition. It could not be shown on the material before the Tribunal, Ms Henderson contended, that there was an aggravation of the condition, or causal links through work to the condition. In all of these circumstances, Ms Henderson submitted that the decision under review should be affirmed.
FINDINGSThe Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
The Tribunal accepts that Ms McCartin provided evidence to the best of her ability but notes that there were some memory lapses and seeming inconsistencies. The Tribunal does not conclude that these inconsistencies or gaps in the evidence are indicative of a deliberate attempt to mislead the Tribunal or hide evidence from it.
On all the evidence, which includes not only medical experts' opinion but also the objective findings on x-ray and ultrasound, Ms McCartin has a constitutional vulnerability in the left shoulder because of the curvature of the acromion and configuration of her left shoulder. This was most fully discussed by Dr Quain, Ms McCartin's treating doctor.
The Tribunal, having found that Ms McCartin provided truthful evidence, although at times missing in detail, accepts that she had problems with her left shoulder arising in June 1999. Ms McCartin did not report the left shoulder pain to her supervisor or anyone else at work. In December 1999, there is a record of her attending her General Practitioner, Dr Small, who noted ongoing left shoulder problems for three months and ordered an ultrasound and x-ray examination. The Tribunal notes a prior entry in the Clinical Notes on 18 October 1999, which indicates that Ms McCartin had been involved in a fight and suffered from a contused left mid forearm. Ms McCartin had not initially recalled this incident but her memory was prompted during cross-examination. She denied however that her subsequent consultations with Dr Small or her treating Orthopaedic Surgeon, Dr Quain, involved any discussion about any problems caused by this fight. It was not until March 2000 that Ms McCartin was referred to Dr Quain for treatment of her left shoulder problems. Dr Quain then became her treating Orthopaedic Surgeon providing pain relief initially and conservative management via corticosteroidal injection and when this no longer provided relief, he undertook surgery of the left shoulder on 6 February 2001.
Turning to the issue of causation of this left shoulder problem, the Tribunal examined Ms McCartin's duties at work. She had variety of duties which included sorting mail and putting various envelopes into pigeonholes. These pigeonholes were laid out in front of Ms McCartin in a frame which she described as six feet three inches high. The work was repetitive requiring that she placed letters which had been sorted by street name and number into the applicable pigeonhole. Ms McCartin is right hand dominant but would undertake the placement of the letter into the pigeonhole by using her left and right hand and on occasions she would have to stand to reach over and upwards above shoulder height to place letters in the appropriate pigeonholes. Her duties also involved pushing a buggy on a mail delivery run through the Milson Point and Kirribilli area, an area of Sydney which is hilly.
Dr McGill's opinion was that if Ms McCartin had the problem in her right shoulder rather than in her left, then perhaps it could be conceivable that there was a causal link established between Ms McCartin's duties and that of an injury to her right shoulder. The Tribunal considers that whilst this opinion might seem logical in a right hand dominant person, Dr McGill seems not to have placed much weight on the particular and individual vulnerability that Ms McCartin's left shoulder had in terms of its constitutional configuration.
Ms McCartin was also playing netball and had been playing this sport for many years. There was expert opinion that in fact the stress and strain on the left shoulder which occurred in an one-hour netball match would in fact produce greater strain than the work duties undertaken by Ms McCartin. Dr Quain on the other hand opined that he had not in all of his years of orthopaedic surgery, seen the sort of injury suffered by Ms McCartin arising out of playing basketball. Although he did refer to basketball, the Tribunal considers that while there is distinction between the games of netball and basketball, it is not sufficient to displace Dr Quain's expert opinion on this matter. The Tribunal does not dismiss the probability that there is a contribution to Ms McCartin's left shoulder condition not only by her work, but also in combination with her netball activities. In Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 641, Windeyer J stated:
"When the Act speaks of "the employment" as a contributing factor it refers not to the fact of being employed, but to what the worker in fact does in his employment. The contributing factor must in my opinion be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed."
The Tribunal has already had noted by the Respondent that in Treloar v Australian Telecommunication Commission (supra), once it is established that an employee is exposed to conditions through employment to which he or she might not otherwise have been exposed and the work was a contributing factor to the condition or injury complained of, then it matters not whether the contribution was of any particular size or degree. In Rodriguez v Telstra Corporation Limited [1999] FCA 1400, Spender J stated:
"The principles to be applied in relation to Mr Rodriguez's case were referred to by Windeyer J in Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 642, where his Honour said:
"The question involved is difficult. Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinarily concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it. It was said that in any event she might have broken down sooner or later: that some other incident might have provided a focus for her delusions. But it was this event at work that in fact did so."
…"
What the Tribunal takes from these various authorities is that for employment to be a contributing factor, this is not so stringent a concept as to require that the employment is the only or major cause for a particular injury or disease. What is required is that it can be shown that the employment contributed in some way to the injury or disease, not that it is "the real, the effective or the proximate cause of the injury" as was noted in Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 598.
On all of the evidence, the Tribunal finds that Ms McCartin has a constitutional vulnerability in her left shoulder. She had been working at Australia Post for some years but in June 1999 experienced left shoulder pain. The Tribunal accepts that Ms McCartin had decided not to report it as she felt that perhaps it had occurred as an isolated incident or arising out of an awkward sleeping position. Ms McCartin continued to work and she continued to play netball. There was an incident in October 1999 when she was involved in trying to prevent or cease a fight between two friends and her left forearm was injured. The Tribunal find that whilst this is recorded, there is no link either provided by Dr Small's Clinical Notes or any of the other doctors as to any causal significance between this particular incident and Ms McCartin's left shoulder injury. The Tribunal finds that Ms McCartin's left shoulder became increasingly painful to the point where she consulted Dr Small in December 1999. From Dr Downes' report, it appears that Dr Small provided Ms McCartin with pain killing injections. When the condition continued to worsen, Ms McCartin was referred by Dr Small to Dr Quain who initially treated Ms McCartin conservatively and later, when this ceased to be effective, undertook surgical treatment which appears to have been most successful.
The Tribunal finds that Ms McCartin's work of sorting mail with repetitive actions including above her shoulder on occasions, superimposed on her existing left shoulder constitutional vulnerability, contributed to her left shoulder condition, described as impingement of the supraspinatus tendon. The Tribunal also finds that Ms McCartin's netball activity probably contributed to her left shoulder condition. Whether or not it was Ms McCartin's work or her netball activity which was the predominant contributing factor to her left shoulder condition is not able to be determined. Dr Downes' view was that netball activity was the predominant contributing factor although he agreed that work did contribute to the problem. Dr McGill considered that the only contribution was from netball. Dr Quain opined that there was a material contribution to her left shoulder condition by her work and that he had never seen a left shoulder problem of the type experienced by Ms McCartin, which could be attributed to basketball activity.
In any event, the Tribunal finds that there is a combination of a number of factors including Ms McCartin's employment which have impacted on her left shoulder condition. If Ms McCartin had not been involved in the repetitive duties of her work at Australia Post, the Tribunal is satisfied that the injury would not have incurred when it did. It is possible that the left shoulder condition may have incurred later, but the Tribunal must deal with all of the evidence, available to it at this particular time and make its findings on Ms McCartin's individual circumstances.
In all of the circumstances and for the reasons expressed above, the Tribunal decides that pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision under review should be set aside and in substitution therefor, the Tribunal determines that :
(1) Pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988, the Respondent is liable to pay compensation for Ms McCartin's left shoulder condition from the date of claim and continuing.
(2) Pursuant to section 19 of the Safety, Rehabilitation and Compensation Act 1988, the Respondent is liable to make weekly payments for incapacity arising out of the Applicant's workplace injury from the date of claim and continuing.
(3) Pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988, the Respondent is liable to pay the Applicant's reasonable medical treatment costs, from the date of claim and continuing.
(4) The Respondent is to pay the Applicant's reasonable legal costs in this matter as agreed or assessed.I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J D Campbell, Member.
Signed: .....................................................................................
AssociateDate of Hearing 25 February 2002
Date of Decision 16 October 2002
Counsel for the Applicant Mr G Wilson
Solicitor for the Applicant Mr Neville Wyatt, Neville Wyatt Lawyers
Counsel for the Respondent Ms R Henderson
Solicitor for the Respondent Mr Graham Jones, Graham Jones Lawyers
0
5
0