Montesalvo and Australian Postal Corporation

[2011] AATA 319

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 319

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2010/2359

GENERAL APPEALS DIVISION		)
Re		GLENDA MONTESALVO

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 13 May 2011

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..................[SGD]............................

Senior Member

CATCHWORDS

COMPENSATION  -  calcific tendonitis of the supraspinatus tendon  -  frozen shoulder  -  decision affirmed

Safety Rehabilitation and Compensation Act 1988

Provost and Repatriation Commission [2011] AATA 153

REASONS FOR DECISION

13 May 2011 Senior Member Bernard J McCabe

1.      Glenda Montesalvo experiences serious pain in her right shoulder. Her doctors say she is one of many Australians who suffer from calcific tendonitis of the supraspinatus tendon. She accepts that condition is not caused by repetitive work or by traumatic injury. But Ms Montesalvo says the condition became painful – it became symptomatic, whereas it was previously asymptomatic – because of an injury that occurred in the workplace. She says that pain is debilitating, and she has developed a frozen shoulder as a result. She says her employer, the Australian Postal Corporation, is liable under s 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for the shoulder condition. The respondent disagrees.

2.      The outcome of the dispute turns on the interpretation of s 5A. I must decide whether the evidence establishes Ms Montesalvo’s shoulder condition arose out of, or in the course of, her employment.

3.      Mr King-Scott, for the applicant, said this was an easy case. He pointed out the applicant’s un-contradicted evidence established that she experienced sudden pain while reaching into a receptacle at a mail centre to retrieve boxes of mail. The stack of boxes may have weighed as much as 60 kilograms.  The applicant says she continues to experience that pain today, although some days are worse than others. I have no reason to doubt her account of the incident at the mail centre, and I accept it. The applicant says she now has limited use of her shoulder because it has frozen. Dr Hazelton (the specialist rheumatologist who saw Ms Montesalvo at the respondent’s request) questioned whether the applicant has a frozen shoulder. Dr Hazelton said the applicant was not being treated on that basis. He also doubted whether the ultrasound studies supported the applicant’s account of her current condition.

4.      Mr King-Scott says there is an irresistible inference that the incident in the workplace is linked to the rapid onset of the symptoms which have resulted in the frozen shoulder. The applicant was fine before the incident, but she experienced debilitating pain almost immediately thereafter. He argued Ms Montesalvo’s current condition (or her experience of that condition) is the product of what happened in the workplace, and is therefore compensable.

What the medical experts say

5.      I have already referred to the essential facts of the case. The applicant had never experienced serious or persistent pain in her shoulders or arms in the past (although the…