Morland and Australian Postal Corporation
[2007] AATA 1292
•2 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1292
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos A2005/343 and A2006/63
GENERAL ADMINISTRATIVE DIVISION ) Re ELIZABETH MORLAND Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date2 May 2007
PlaceCanberra
Decision The decisions under review are set aside and in place thereof the Tribunal decides that Ms Morland sustained a bilateral upper limb injury on 15 September 2005 and a subsequent injury in the course of her employment on 1 December 2005.
............(Signed)...............
Mr S. Webb, Member
CATCHWORDS
COMPENSATION - liability for injury claimed - bilateral arm symptoms - credit - diagnosis of symptoms uncertain - objective symptoms - material contribution - reasonable satisfaction - decisions set aside
Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 16, 67
Commonwealth Government Employees Act 1971 (Cth)
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu Khan [2007] FCA 15
Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797
Australian Postal Corporation v Lucas (1991) 14 AAR 487
REASONS FOR DECISION
2 May 2007 Mr S. Webb, Member 1. Elizabeth Morland worked as a Postal Delivery Officer employed by the Australian Postal Corporation. She claimed compensation for bilateral arm and wrist symptoms, worse on the right, that purportedly arose in the course of her employment while sorting mail using a V-sort frame. Her claim was denied. Subsequently, Ms Morland lodged a second claim for compensation in relation to bilateral wrist symptoms she purportedly experienced riding an Australia Post motorcycle on 1 December 2005. This claim was denied. Unhappy with those decisions Ms Morland has applied for review.
2. The issue for determination is:
Did Ms Morland suffer an injury on 15 September 2005 and 1 December 2005 in relation to which Australia Post is liable to pay compensation?
3. Australia Post asserts that Ms Morland did not suffer an injury on either date. Australia Post says that Ms Morland’s evidence is not reliable and that her description of symptoms over time is not consistent. In Australia Post’s submission there is no clear diagnosis of what, if anything, is wrong with Ms Morland and in the absence of any observable or objective evidence of injury the decisions under review should be affirmed. Furthermore, Ms Morland’s own evidence concerning her tree climbing and tree surgery activities indicates that she was not in fact injured in the manner claimed.
4. As will appear I do not agree.
5. Under the Safety, Rehabilitation and Compensation Act 1988 (the Act) Australia Post, as a licensed corporation, is liable to compensate an employee in relation to an injury that causes incapacity for work or impairment (s.14) or requires medical treatment (s.16). ‘Injury’ is defined to include a physical injury arising out of or in the course of the employment, or a disease that was contributed to in a material degree by the employment, or an aggravation of either such an injury (s.4). The word ‘material’ imposes an evaluative threshold below which a causal connection may be disregarded[1], whereby all relevant contributing factors must be evaluated in order to ascertain whether the contribution of the particular employment was material[2].
[1] Comcare v Canute (2005) 148 FCR 232 at paragraph 67
[2] Comcare v Sahu Khan [2007] FCA 15 at paragraph 16
6. I do not accept Australia Post’s submission that Ms Morland’s evidence is generally unreliable. Ms Morland is a person with firm views concerning the causation of the various symptoms she experienced prior to her employment by Australia Post and of her upper limb symptomatology since July 2005. However, that does not render her evidence unreliable or compel a finding that she is a liar. Nevertheless, I will proceed to evaluate her uncorroborated evidence with caution.
7. I am reasonably satisfied that Ms Morland suffered an injury on 15 September 2005. Ms Morland experienced aching, stiffness and discoloration in her left wrist and hand, and pain, weakness, tingling and discoloration in her right forearm, wrist and hand in the course of her duties at work on 15 September 2005.
8. I do not accept Australia Post’s submission that there was no objective evidence of injury to support Ms Morland’s claimed symptoms on 15 September 2005. On 16 September 2005 Dr D. McGrath, Occupational Physician and Australia Post Facility Nominated Doctor, examined Ms Morland and reported “slight bilateral dusky discolouration of both hands (bluish colouration)”[3]. Dr McGrath accepted her reported symptoms as real and certified her fit for work on restricted duties[4]. However, it appears that the objective signs Dr McGrath observed were of short duration. On 20 September 2005 Dr Moxham noted “shooting pains, forearms, shoulders, hands R>L… not swollen, skin looks in poor condition on hands”[5]. Thus it appears that the discoloration observed by Dr McGrath may have diminished when Dr Moxham examined Ms Morland on 20 September 2005 and certified her unfit for duties[6]. Dr Moxham was not called to give evidence.
[3] Oral evidence; Exhibit R2 p2
[4] AT7 folio 34)
[5] Exhibit R6, clinical note
[6] AT8 folio 35
9. Ms Morland’s evidence was that she first experienced stiffness in her hands, arms and shoulders at work in July 2005, approximately three weeks after commencing duties at the Phillip Delivery Centre. She asserted that these symptoms recurred with repetitive activities sorting mail on cold mornings, principally in her right arm, wrist and hand, and there was a sudden escalation of bilateral arm symptoms while sorting mail at approximately 6.30am on 15 September 2005. With regard to the bilateral upper limb symptoms she described prior to 15 September 2005 it is to be noted that Ms Morland was engaged in tree surgery activities from June 2005 to August 2005. Ms Morland asserted that she did not experience any symptoms of pain or stiffness in her arms, wrists or hands when performing these activities. That evidence is to be considered in relation to her evidence that she experienced the onset of bilateral arm symptoms in July 2005 solely in the context of her employment using the V-sort frame and a postal delivery motor cycle.
10. I accept Australia Post’s submission that Ms Morland’s arm symptoms were caused, in part, by her tree surgery activities from June to August 2005. Even though Ms Morland attributed her symptoms solely to activities in employment, in the circumstances and on the evidence before me that is unlikely. When sorting mail using a V-sort frame Ms Morland held bundles of mail in her left hand and placed each article into the V-sort frame using her right hand. Dr McGrath and Dr McGill gave evidence that the repetitive actions involved when sorting mail using a V-sort frame would be unlikely to produce bilateral wrist, arm and shoulder symptoms such as asserted by Ms Morland from July 2005. Dr McGrath and Dr McGill were of the opinion that such bilateral symptoms were more likely to be the result of tree surgery activities. I accept their evidence in that regard.
11. In order to use a hand pruning saw it is necessary to grip the handle and apply repetitive linear force from the upper arm through the wrist. However, it can be seen from Ms Morland’s evidence that she manipulated the saw in awkward positions in standing trees. In order to cut branches in such positions the linear force required would not easily have been applied directly. It is more likely than not that using the saw in such awkward circumstances would have resulted in non-linear stresses on Ms Morland’s wrist and related structures while performing the repetitive sawing actions required. While these repetitive stresses and actions can be distinguished from the repetitive upper limb movements (especially on the right) when sorting mail using a V-sort frame it appears to me more likely than not that the tree surgery activities Ms Morland undertook in the period from June to August 2005 were operative factors that contributed to the onset of her bilateral arm symptoms in July 2005. I so find.
12. However, that does not conclude the matter. I am satisfied that the bilateral upper limb symptoms Ms Morland experienced on 15 September 2005 were multifactorial, and find that these symptoms were materially contributed to by the repetitive mail sorting duties she performed using a V-sort frame on cold winter mornings, and so find.
13. Ms Morland commenced duties as a postal delivery officer in or about February 2005 in the Belconnen Delivery Centre and underwent a period of training, working with another person. Sunsequently, she took up full duties as a postal delivery officer at the Phillip Delivery Centre on or about 28 June 2005. Her usual work routine involved commencing duties at or about 5.45am, sorting mail allocated to her using a V-sort frame adjusted to her requirements, and then delivering the mail using a motorcycle. Dr McGrath gave evidence that the change in Ms Morland’s duties in June 2005 and undertaking those duties in a cold environment may be operative factors in the onset of her arm symptomatology. It appears that Dr McGrath’s assessment on 21 September 2005 (that Ms Morland’s “pain problem cannot be attributed to her work with Australia Post on current evidence” and was more likely attributable to her tree surgery activities[7]) was based on incomplete and insufficient evidence provided to him at that time by Ms Morland. In oral evidence he conceded that the change to Ms Morland’s work duties on 28 June 2005 with the gradual onset of symptoms of pain and stiffness in her arms approximately three weeks later, and the cold conditions in which she worked from time to time, were significant factors that should be taken into account, but were not made clear to him when examining her on 16 September 2005.
[7] AT9 folio 36
14. The evidence is that even though the Phillip Delivery Centre is equipped with ducted and sub-floor heating systems it is susceptible to fluctuations in temperature as a result of doors being opened and draughts entering the facility. This is especially so in relation to the two large roller doors (at the loading dock and to the motorcycle shed) in that facility. Mr King gave evidence that in the winter months the external pre-dawn temperature often drops below freezing and occasionally may drop to minus 10 degrees Celsius[8]. The location of the V-sort frames in the Phillip Delivery Centre was such that employees working in that area (including Ms Morland) may experience cold draughts from time to time in winter, especially early in the morning when the facility doors are open. On Mr King’s evidence in circumstances when the doors were opened it is more likely than not that the inside temperature would drop before any compensatory output from the heating system had effect. Employees sorting mail at the V-sort frames were not provided with gloves while performing those duties in winter[9]. Thus it can be seen that Ms Morland would, in all likelihood, have been exposed to cold conditions while sorting mail using a V-sort frame in the Phillip Delivery Centre in the winter months from June 2005. I am satisfied that that was the case.
[8] Mr King – oral evidence
[9] Mr King – oral evidence
15. Accepting Dr McGrath’s evidence, I am reasonably satified that Ms Morland’s employment materially contributed to her upper limb symptoms on 15 September 2005 and so find.
16. Much of the medical evidence was directed to the issue of diagnosis. However, the medical evidence on this point is conflicted and no clear diagnosis has been made out with any degree of certainty.
17. Dr McGrath reported on 21 September 2005 that Ms Morland’s symptoms were not typical of an acute tendinopathy and did not proceed to make a diagnosis, observing that if Ms Morland “re-presents it seems likely that we will need to perform some further studies to try and establish a diagnosis”.
18. On 4 October 2005 Dr C. Moxham, general practitioner, diagnosed tenosynovitis with some carpal tunnel symptoms and the possibility of some symptoms of reflex sympathetic dystrophy[10]. On 15 October 2005 Dr Eaton reported that there is a “probable significant neurogenic component” and considered the possibility of “some tendonitis musculo-ligamentous strain” as well as “early development of Complex Regional Pain Syndrome Type 1”, but was not able to determine the origin of Ms Morland’s bilateral arm pain[11]. An ultrasound of both Ms Morland’s forearms was performed on 4 November 2005, in relation to which Dr K Osborn reported “enlargement of both median nerves at the region of the carpal tunnels… Adjacent tendons and tendon sheaths are normal”[12]. Subsequently Dr McGrath diagnosed carpal tunnel syndrome with a variable degree of dysfunction[13]. In his oral evidence Dr McGrath suggested that Reynaud’s Phenomenon is a likely explanation of Ms Morland’s symptoms.
[10] BT4 folio 9
[11] BT5 folio 12
[12] Exhibit A4
[13] Exhibit R2 p2
19. Diagnoses of tenosynovitis or tendonitis as suggested by Dr Shroot in December 2005 and Dr Reid in March 2006 are not made out on the balance of probabilities but remain possibilities that cannot be ruled out on the evidence before me. I note that Dr McGill found no evidence of tenosynovitis at that time he examined Ms Morland on 2 March 2006[14] but did not rule out the possibility that she may have had “very minor tenosynovitis contributing to her initial symptoms”[15]. Dr McGrath concluded that “[t]he overall picture is one of circulation or structural insufficiency with complicating median nerve swelling and symptoms”[16]. Thus, even though I am unable to determine with certainty whether the correct diagnosis of Ms Morland’s symptoms on and after 15 September 2005 is tenosynovitis (or tendonitis) or Reynaud’s Phenomenon or carpal tunnel syndrome, I am reasonably satisfied that her symptoms at that time were real and, in all likelihood, may fairly be characterised as an episode or manifestation of one or more of the aforementioned conditions. Specifically, it appears likely that the repetitive actions she performed when sorting mail using a V-sort frame and when delivering mail using a motorcycle, and the cold conditions in which she worked from time to time, were operative factors that contributed in a material degree to cause the symptoms she experienced on 15 September 2005. That being so I will proceed on the basis that Ms Morland’s upper limb symptoms on 15 September 2005 are appropriately dealt with as an ailment under the disease provisions of the Act rather than as a frank physical injury.
[14] Exhibit R1 and R8
[15] Exhibit R1, p7
[16] Exhibit R2 p2
20. The difficulty establishing a precise and incontrovertible diagnosis is not fatal to Ms Morland’s case (Re Musumeci and Department of Health (Northern Territory) (1990) 19 ALD 797)[17]. Although Musumeci’s case was decided under the Commonwealth Government Employees Act 1971 (Cth), Deputy President Todd’s comments on this point are apposite here:
“…while inability to make a precise and incontrovertible diagnosis may well make more difficult a finding of a link between the employment and a claimed incapacity, that fact of itself does not militate against a finding for an employee under the legislation here applicable where the proofs are otherwise adequate.” (Emphasis added)[18]
[17] See paragraphs 13 to 16.
[18] At paragraph 14
As in Musumeci’s case, I am satisfied that the proofs are otherwise adequate to establish the requisite link between Ms Morland’s claimed injury and her employment despite the difficulty determining the precise diagnosis of her symptoms. Furthermore, unlike Musumeci’s case in this case there is objective evidence of physiological changes in Ms Morland’s hands on the day following the claimed injury and reasonably contemporaneous evidence of the enlargement of her median nerves. Thus, I am satisfied that Ms Morland’s case is one of those rare cases to which Burchett J referred in Australian Postal Corporation v Lucas (1991) 14 AAR 487 [19], whereby she should not be denied compensation for want of a conclusive diagnosis.
[19] At 494-495.
21. I do not accept Australia Post’s submission that Ms Morland’s arm symptoms were the result of a previously existing psychological condition or psychogenic factors. It is possible that such factors, or previously existing depression or anxiety, may have contributed to her perception and representation of symptoms as work caused, and may have contributed to her later perception of pain. I note that Ms Morland is dissatisfied with Australia Post’s response to her claimed injury and she feels disgruntled about what she perceives to be an injustice. As it appears to me her disgruntlement may be an operative factor in her representation of injury and her sensitivity to symptoms, and in her recovery and return to full duties. However, there is simply no evidence to establish on the balance of probabilities that the symptoms Ms Morland complained of on 15 September 2005 and the signs and symptoms Dr McGrath noted on 16 September 2005 were of psychogenic origin.
22. There is no evidence that Ms Morland suffered from a previously existing upper limb condition that was symptomatic immediately prior to the events in issue in these proceedings from July 2005. Prior to her employment by Australia Post Ms Morland experienced one episode of tenosynovitis and suffered from unexplained symptoms of head pain. She also suffered from depression and anxiety in relation to her employment as a nurse. I do not accept that Ms Morland deliberately set out to conceal a physical or psychological medical condition from Australia Post in the pre-employment medical questionnaire she completed with Dr McGrath on 14 December 2004[20].
[20] AT3 folios 8-11
23. I do not accept Australia Post’s submission that the upper limb symptoms Ms Morland complained about on and after 15 September 2005 were symptoms that were related in some way to headaches she had suffered over a long period that her treating doctors could not explain[21]. There is simply no evidence that that is the case.
[21] Exhibit R6 refers
24. I am satisfied that the injury on 15 September 2005 caused Ms Morland to suffer incapacity for work. I note that there is a conflict between the extent of incapacity certified by Dr McGrath on 16 September 2005 and that certified by Dr Moxham on 20 September 2005. It is not for me to resolve this conflict and determine the extent of her compensable incapacity at that time. However, I note that Dr McGrath was scheduled to review Ms Morland’s case on 21 September 2005, but Ms Morland attended Dr Moxham instead. Thus, Dr McGrath was denied the opportunity to re-examine Ms Morland and review the extent of her incapacity for work at that time. It is unfortunate that Dr Moxham’s evidence was not able to be tested on this point. Nevertheless, in the absence of other evidence, it would be reasonable to accept her certification of Ms Morland’s incapacity for work from 20 September 2005. Ms Morland returned to work on 25 October 2005[22], on restricted duties certified by Dr Eaton[23].
[22] AT15 folio 45
[23] Exhibit A1, p1
25. On 1 December 2005 Ms Morland delivered mail using a motorcycle with a defective rear brake[24]. I accept Ms Morland’s evidence that she experienced an exacerbation of symptoms in her right forearm, wrist and hand as a result. The evidence is that the particular motorcycle’s rear brake grabbed suddenly when applied, causing the cycle to come to a sudden halt[25]. I accept that this defective action would be likely to causing a sudden jarring effect that may cause discomfort, especially in a person with a history of painful arm symptoms, to the extent that the hand operated front brake may be used instead. The motorcycle front brake is operated by a lever on the right handle bar. It is a matter of simple physics that use of the front brake may place additional stress on the rider’s arms, bracing against the handle bars to prevent the rider falling to the front. The motorcycle throttle is operated by a twist control that is mounted in the right handle bar. Thus, in the circumstances, it can be seen that Ms Morland may have placed greater reliance on her right hand and forearm to control the motorcycle when delivering mail using the defective motorcycle on 1 December 2005 than otherwise would have been the case if the rear brake had been operating satisfactorily.
[24] BT12 folio 26; BT13 folio 28
[25] BT13 folio 28 refers
26. That being so, I am satisfied that the increased symptoms Ms Morland experienced in her right arm on 1 December 2005 were materially contributed to by her employment and constitute an aggravation of her upper limb symptoms in compensable circumstances. Furthermore, I am satisfied that the injury caused her to suffer an incapacity for work as certified by Dr Shroot on 2 and 15 December 2005[26].
[26] BT8 folios 17, 18 and 19
27. Ms Morland gave evidence that she undertook tree surgery activities in December 2005 during which she experienced pain and stiffness in her arms and hands, but persevered because she did not want inexperienced people to use a mechanical chainsaw when she was qualified to do so[27]. By her account she experienced symptoms, especially in her right arm, wrist and hands for a number of days afterwards. The medical evidence is reasonably consistent concerning Ms Morland’s tree surgery activities in December 2005, that is, her claimed bilateral arm condition would not prevent her from undertaking the climbing and sawing activities involved in tree surgery, but it would very likely cause her to experience pain. Thus it appears likely and I find that the tree surgery activities Ms Morland undertook in December 2005 caused bilateral upper limb symptoms, aggravating her upper limb condition.
[27] Transcript 5 September 2005 pp 144-146
28. Having evaluated all of the factors and circumstances and following Comcare v Sahu-Kahn (supra) I am satisfied that Ms Morland’s employment contributed in a material degree to the injury she sustained on 15 September 2005 and to the subsequent aggravation injury on 1 December 2005.
29. It follows therefore that the decisions under review must be set aside and in place thereof the Tribunal decides that Ms Morland sustained a bilateral upper limb injury on 15 September 2005 that was aggravated in the course of her employment on 1 December 2005. The matter is remitted to Australia Post to determine the amount of any compensation to which Ms Morland is entitled.
30. The parties have 14 days in which to make submissions in relation to costs. If no submissions are received Australia Post will be required to pay Ms Morland’s reasonable costs of these proceedings pursuant to subs 67(8) of the Act as agreed or taxed.
31. I will respond briefly in closing to the parties submissions concerning the duration of Ms Morland’s injury, even though that matter is not strictly before me for determination. The evidence of Ms Morland’s treating doctors is that effects of her injury were not completely resolved in December 2005 following the aggravation injury on 1 December 2005. Dr Shroot certified that she was fit for restricted duties from 15 December 2005 to 5 January 2006[28]. Ms Morland gave evidence that she experienced increased pain and stiffness in her upper limbs during and after the tree surgery activities she undertook in the last week of December 2005. I have found that those activities caused bilateral upper limb symptoms and aggravated her upper limb condition at that time. On 5 January 2006 Dr Shroot certified her fit for restricted duties and recommended review of her case on 2 February 2006[29].
[28] BT8 folio 18
[29] BT8 folio 19
32. It appears from the evidence of Dr Shroot that, subsequently, Ms Morland complained that her arm symptoms were aggravated on or about 22 February 2006 when a “trolley mechanism broke down”[30]. However, even if that is the case, and strictly that matter is not before me for determination, it appears from Dr McGill’s evidence that any increased symptomatology as a result of the aggravation was of short duration. It may be inferred from his reported examination findings on 2 March 2006 that Ms Morland complained of slight discomfort and tenderness in her wrists (especially the right) that Dr McGill did not consider indicative of an “underlying significant disorder”[31]. However when Dr Reid examined Ms Morland on 13 March 2006 he identified symptoms that in his opinion supported a diagnosis of tendonitis[32].
[30] BT8 folio 20
[31] Exhibit R1 pp 4 and 7
[32] Exhibit A4, p1
33. Considering this evidence it is difficult to determine whether the Ms Morland’s injuries on 15 September and 1 December 2005 materially contributed to cause her upper limb symptoms and incapacity in January 2006, as certified by Dr Shroot, or whether those symptoms were the material effect of aggravation as a result of her tree surgery activities in late December 2005. Nevertheless, it appears likely that Ms Morland’s injuries resolved prior to 22 February 2006 when she complained to Dr Shroot of a further aggravation. I am reasonably satisfied that Ms Morland’s complaints on 2 March 2006 concerning very minor subjective symptoms (noted by Dr McGill), if anything, related to that latter incident and not the injury on either 15 September 2005 or 1 December 2005. The possibility that either of these injuries was an on-going operative factor in March 2006 is not made out on the balance of probabilities on the evidence that is before me.
34. The evidence of Mr King was that Ms Morland performed a number of chin-ups on the door frame of his office at her place of employment on 13 April 2006 and 3 August 2006. Ms Morland did not dispute this point. Dr Reid’s evidence was that performing one or two chin-ups would be unlikely to cause any exacerbation of Ms Morland’s upper limb symptoms and may even be beneficial to her condition. Thus this evidence does not indicate the presence or absence of upper limb symptoms in Ms Morland at either time.
35. It is for others to determine any compensation that may be payable to Ms Morland in relation to her compensable injuries under the Act. Those matters must be determined on the merits in relation to a claim and, in all likelihood, will require additional evidence.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .....................................................................................
Peter Strauch, AssociateDates of Hearing 4-5 September 2006 and 29-30 March 2007
Date of Decision 2 May 2007
Counsel for the Applicant Ian Bradfield
Solicitor for the Applicant Pamela Coward & Associates
Counsel for the Respondent Geoffrey Johnson
Solicitor for the Respondent Sparke Helmore
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