Mitry and Australian Postal Corporation
[2006] AATA 801
•20 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 801
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2005/828
GENERAL ADMINISTRATIVE DIVISION ) N2006/50 Re NAGWA MITRY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J D Campbell, MemberDate20 September 2006
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] Mr M D Allen Presiding Member
CATCHWORDS
Claim for permanent impairment resulting from carpal tunnel syndrome - Whether alleged impairment was constitutional in origin or related to employment - Whether duties of a Postal Service Officer can constitute repetitive work.
Safety, Rehabilitation and Compensation Act 1988 – sections 14 and 24
REASONS FOR DECISION
20 September 2006 Senior Member M D Allen
Dr J D Campbell, Member1. By application made the 30th of June 2005 the Applicant sought review of a reviewable decision made the 22nd of June 2005 affirming an earlier determination that rejected liability for carpal tunnel syndrome.
2. On 17 January 2006 the Applicant lodged a further application for review seeking review of a reviewable decision made the 12th of January 2006 affirming a prior determination rejecting her claim for permanent impairment resulting from carpal tunnel syndrome. Both applications for review were heard together.
3. At the outset we can state that we found the Applicant to be a credible witness and no issue was taken by the Respondent as to her veracity.
4. There is no doubt that the Applicant did suffer from carpal tunnel syndrome. Exhibit A5 is the report of Hand and Wrist Surgeon Dr Hargreaves, who performed bilateral endoscopic release of the carpal tunnel. The Applicant’s evidence was that following Dr Hargreaves’ surgery she obtained relief but that she still experiences pain after a days work but it is more bearable. Currently she has pain at the base of her right thumb and in her right shoulder and elbow although the elbow pain did settle down after the operation performed by Dr Hargreaves.
5. Dr Conrad, a General Surgeon who examined the Applicant at the request of her solicitors is of the opinion that the Applicant’s ongoing disabilities are as a result of a repetitive strain injury. He also opined that the Applicant’s problems were compatible with a bilateral wrist strain not carpal tunnel syndrome.
6. Dr Teychenne, Neurologist, opined as a result of a Nerve Conduction Study that the Applicant still has a bilateral carpal tunnel syndrome together with a compressive neuropathy of the right ulnar nerve at the elbow which conditions were caused by her employment.
7. Professor Bruce Connolly is Associate Professor of Hand Surgery at the University of New South Wales and at the University of Sydney. His opinion is that the Applicant had carpal tunnel syndrome from which she has recovered following surgery. Currently she has a degenerative arthritis of the basal joint of her right thumb. He was of the opinion that the Applicant’s carpal tunnel syndrome was constitutional in origin and not related to her employment.
8. Dr Stapleton, a Hand, Plastic and Reconstructive Surgeon examined the Applicant on 28 July 2004 and 7 March 2006. He noted the endoscopic decompression performed by Dr Hargreaves and stated that the Applicant did not now need treatment. In this regard he disagreed with the opinion of Dr Teychenne. Dr Stapleton was also of the firm opinion that the Applicant’s carpal tunnel syndrome was not caused by employment.
9. Dr Whittaker, a Consultant Rheumatologist examined the Applicant on 9 August 2004 and again on 14 March 2006. His opinion is that the Applicant’s ongoing symptoms are not those of carpal tunnel but of an early osteoarthritis. Both the carpal tunnel syndrome and the early osteoarthritis were constitutional in origin.
10. The Applicant commenced employment with the Respondent in 1987. Originally her duties were that of a Postal Service Officer attached to a unit which provided relief staff to various Post Offices to cover staff on recreational or other leave. Her duties were the familiar ones of a retail sales officer behind the counter of a Post Office. They included selling stamps and the various other retail items stocked by Post Offices, handling mail including parcels, processing accounts, mail sorting and administrative tasks. The duties were more particularly set out in a brochure which became Exhibit R8. In particular if a parcel weights over 16kg, it is a work requirement that two persons be available to lift it.
11. The Applicant carried out these duties until 1998. On 19 March 1998 she was injured in a motor vehicle accident on her way to work and suffered injury to her lower back and neck. On 21 May 1998 the Respondent accepted liability for “whiplash to the cervical spine”.
12. Upon her return to work after the motor vehicle accident the Applicant returned to counter duties. At the time of the motor vehicle accident she had been carrying out higher duties but her absence from work meant that those duties were no longer available to her. She was disappointed in this and disappointed that further supervisory duties were no longer available to her.
13. In November 1998 the Applicant commenced new duties as a Business Sales Consultant. This involved the use of a telephone headset, a computer and involved entering data. The Applicant also had to use a telephone key pad and write details of customers and items. Other duties included operating a facsimile machine and filing.
14. The Applicant’s evidence to the Tribunal was that in 1999 she began to experience pain in her right arm. She thought it was from using the computer but did not make any complaint regarding the pain at that time. The pain increased and by 2004 was causing her distress, particularly during the night. It was than that she made a complaint to her employer and sought medical treatment.
15. A diagnosis of carpal tunnel syndrome was made in 2004, originally by a Dr Kapila. Apparently Dr Kapila did not consider the Applicant a good candidate for a surgery, so a second opinion was obtained from Dr Hargreaves.
16. In his initial report to the Applicant’s General Practitioner, Dr Hargreaves stated:
“ …She has had pain and paraesthesia in both hands for several years, which she initially ignored. In May this year symptoms became more severe, to the stage when it was keeping her awake all night. She has tried conservative treatment including splintage, diuretics, vitamin B6 treatment and ceased the oral contraceptive pill. The splint had some benefit with night waking less prominent.
Mrs Mitry gets pain while using her computer, particularly if she is on the inbound, rather than outbound section of her work, as this involves more direct customer contact. While driving, for example driving to Newcastle for a work function recently, she notices pain which causes her to dangle and shake the hands alternatively. “
As stated above Dr Hargreaves diagnosed the bilateral carpal tunnel syndrome and performed bilateral release of the carpal tunnel in November 2004.
17. Dr Conrad in his report of 8 April 2005 took a history of the Applicant suffering pain in both wrists occurring in the early 1990-ties due to heavy repetitive work. He then went on to opine:
“This lady, due to heavy repetitive work whilst working at Australia Post, has developed a bilateral wrist strain, a right elbow strain and right shoulder strain, at this stage, she has had a bilateral carpal tunnel release operation. She has ongoing pain and stiffness in both wrists, but the right side is more affected than the left…”
The Applicant was examined by Dr Pierides, a specialist in occupational medicine on 22 October 1998 following her return to work after her motor vehicle accident. Although Dr Pierides commented upon her cervical and thoracic spine and noted an x-ray showing mild arthritis in her lumbar spine he makes no history of any wrist, elbow or shoulder pain.
18. The history taken by Dr Conrad of pain commencing in the “early 1990-ties” is in direct contrast to the Applicant’s evidence to this Tribunal. Further having regard to the evidence of the Applicant’s duties in the period 1987 to November 1998 i.e. when she worked as a Retail Sales Officer in Post Offices, we cannot accept that those duties involved “heavy repetitive work”. Likewise in her current duties namely the duties which she commenced in November 1998, whilst they involve keyboard activities, the actions required are neither heavy nor repetitive.
19. In his evidence Dr Conrad referred to the incidence of repetitive strain injury amongst violinists. We do not agree that the duties of the Applicant either in Post Offices or whilst a telephone sales operator are similar in repetitive activity to those of a violinists. Cross-examined Dr Conrad conceded that he was not aware of any studies linking violinists with an increased incidence of carpal tunnel syndrome.
20. Given the inaccuracy of the history and the facts upon which Dr Conrad has based his opinion we reject that opinion.
21. Dr Teychenne based his opinion primarily upon Nerve Conduction Studies. As pointed out by Dr Whittaker in his evidence conduction studies are an aid to diagnosis which should be made after a clinical examination.
22. Professor Connolly and Dr Stapleton both have specific expertise in surgery of the hand. Where their opinions conflict with those of Drs Conrad and Teychenne we prefer their opinions as they have the relevant expertise.
23. Professor Connolly together with Drs Stapleton and Whittaker reject the hypothesis that the Applicant’s carpal tunnel syndrome was caused by occupational factors. We accept these opinions. Likewise the Respondent’s experts do not regard the Applicant as suffering from any ongoing carpal tunnel syndrome following the surgery performed by Dr Hargreaves. Again we accept their opinion on this issue, Dr Teychenne, a Neurologist apparently being prepared to base his diagnosis primarily upon Nerve Conduction Studies alone.
24. Dr Whittaker is of the opinion that the Applicant’s ongoing symptoms are those of a constitutional osteoarthritis. Having accepted the opinions of those medical practitioners who find that the Applicant does not have an ongoing carpal tunnel syndrome and specifically rejecting Dr Conrad’s opinion of a repetitive strain injury, the only logical finding that can be made regarding the Applicant’s ongoing pain is that Dr Whittaker is correct in his diagnosis of osteoarthritis. As the Applicant’s osteoarthritis is not work-caused, and the original carpal tunnel syndrome was not work-caused, the decisions under review are affirmed.
I certify that this and the preceding pages are true copies of the decision and reasons for the decision herein of:
Senior Member M. D. Allen
Dr J D Campbell, MemberSigned: ………………………………………………………
Associate
Dates of Hearing 7 & 8 September 2006
Date of Decision 20 September 2006
Counsel for the Applicant Mr. Sean Brennan
Solicitor for the Applicant Castagnet Lawyers
Counsel for the Respondent Mr. Geoffrey Johnson
Solicitor for the Respondent Forners Solicitors
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