Mulligan and Australia Postal Corporation
[2007] AATA 1144
•20 March 2007
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1144
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/0512
No N2005/0591
GENERAL ADMINISTRATIVE DIVISION ) Re DAVID MULLIGAN Applicant
And
AUSTRALIA POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr M E C Thorpe, Member
Date20 March 2007
PlaceSydney
Decision The Administrative Appeals Tribunal sets aside the decisions under review.
…………[sgd]……….
Ms Naida Isenberg
Senior Member
CATCHWORDS
WORKERS COMPENSATION – work injury – motor vehicle accident – medical injury as defined by the act – rehabilitation (return to work) programme – failure to comply with return to work plan –liability to pay compensation – link between injury and subsequent development of symptoms
LEGISLATION
SAFETY REHABILITATION AND COMPENSATION ACT 1988
REASONS FOR DECISION
20 March 2007
Ms N Isenberg, Senior Member
Dr M E C Thorpe, Member
INTRODUCTION
1. David Mulligan is an employee of the Australian Postal Commission (‘Australia Post’). He has complained of an ongoing condition affecting his left shoulder and arm that he asserts was sustained by reason of a motor cycle accident during his employment with Australia Post.
BACKGROUND AND HISTORY OF APPLICATION
2. Mr Mulligan has worked for Australia Post since 23 November 1998. On 15 May 2002 his delivery motor cycle was involved in an accident and he lodged an incident report noting a laceration to the hand, knee, elbow, and palm. The next day, following medical treatment he lodged a compensation claim for the accident and identified injury to his left shoulder and elbow and right knee.
3. He returned to work on light duties in June 2002 and in about October 2003 returned to pre-injury hours and his normal duties. He went off work again in September 2004. On 17 November 2004 a Return to Work Plan was prepared for gradual upgrade of delivery duties. On 9 December 2004 Australia Post wrote to Mr Mulligan noting his failure to comply with the Return to Work Plan. In a reviewable decision dated 22 March 2005 Mr Mulligan was considered to not be precluded by the work injury or from participating in the Return to Work Programme of 17 November 2004.
4. On 1 March 2005 a delegate determined that there was no present entitlement to benefits in respect of the compensable injury sustained on 15 May 2002. A reviewable decision affirming the determination that there is no present entitlement to compensation in respect of the injury of bruising and abrasions left shoulder, bruising left elbow and abrasions left knee from the accident on 15 May 2002, was made on 20 April 2005.
ISSUES FOR DETERMINATION
5. We have to decide whether, at the date of the reviewable decision, there was a liability to pay compensation in respect of Mr Mulligan‘s condition, that is whether Mr Mulligan continued to suffer from a medical injury as defined by the Safety Rehabilitation & Compensation Act 1988 (‘the Act’) as a result of the work accident on 15 May 2002.
6. Further, we have to decide whether Mr Mulligan was precluded by the compensable injury from participating in the section 37 Rehabilitation (Return to Work) Programme dated 17 November 2004.
EVIDENCE OF THE APPLICANT
7. Mr Mulligan gave evidence and was cross-examined on behalf of Australia Post.
8. Mr Mulligan told us about the accident and how, having been forced from his motor cycle, he landed on his left shoulder, left elbow, right knee and right knuckles. He received medical treatment that day and the following day. His right hand and knee presented only short term problems. From about mid June though he experienced heaviness in the arm and pins and needles in his fingers. There was also pain under the shoulder blades and pain up and down his neck when moving it from side to side.
9. He said he reported these symptoms to all the doctors to whom he was referred. (Although counsel for the Respondent submitted that he had not told Dr Whittaker of the ‘heaviness’, the transcript confirms that his evidence was that he did so).
10. He said that when he worked on the ‘v-sort’ mail sorting stand in accordance with the Return to Work Programme he experienced increasing heaviness in his arm because he would hold mail in his left hand and sort it into the slots with his right. When doing that his left arm was in a ‘static’ position, down his side to the elbow and then at right angles.
11. In the 18 months he was off work he used up his sick leave, annual leave and received social security benefits for a period. He also did some tiling work, as he had done in his spare time for several years. He had continued to do this work from the time of the accident, occasionally for up to a week at a time. He said he could do tiling work, but not the v-sort because he could essentially do the tiling work, including affixing wall tiles, one handed.
12. He was asked to comment on video evidence which showed him using his left arm freely on a number of occasions. His evidence was to the effect that the v-sort work required his left arm and hand to hold mail in one position for 2 hours at a stretch, unlike tiling, pulling the boat, carrying a tile or a bucket and the disposal of rubbish at the tip, as had been depicted in the video.
MEDICAL EVIDENCE
13. We found it somewhat unsatisfactory that neither party called any medical evidence, relying instead on tendered reports. Furthermore the medical evidence relied on was referred to in general terms and it was left to us to review the medical evidence, without assistance.
14. Besides his general practitioners and Dr Suhaker for Australia Post, Mr Mulligan has been seen by Dr Pierides, Specialist in Occupational Medicine; Dr Rowe, Orthopaedic Surgeon; Dr Biggs, Orthopaedic Surgeon; Dr Burgess, Orthopaedic Surgeon; Dr Gordon, Neurologist; Dr Vicaretti, Vascular Surgeon; Dr Fearnside, Neurological Surgeon; Dr Brooder, Neurologist and Dr Whittaker, Consultant Rheumatologist.
15. In addition he has been extensively investigated including x-ray and ultrasound of his left shoulder reported as normal; x-ray of cervical spine showing slight narrowing of C6/C7; CT cervical spine showing slight scoliosis concave to the right; MRI cervical spine showing subtle narrowing of the disc space posteriorly associated with small posterior projecting osteophytic ridge/disc complex. Nerve Conduction Studies concluded the median, ulnar, radial and musculocutaneous nerve conduction studies were normal. EMG studies in the muscles supplied by the left ulnar nerve in the hand were normal. An upper limb arterial Doppler Study performed by Orana Radiology 31 January 2003 demonstrated no abnormality. A further upper limb arterial Doppler Study performed by Central West Nuclear Medicine and Ultrasound on 3 August 2005 showed appearances consistent with left subclavian steel, with evidence of abnormal flow patterns within the subclavian in the arm elevated position.
16. In summary the investigations showed slight narrowing of C6/C7 with subtle narrowing of the disc space on MRI, a normal arterial Doppler in 2003 and a further arterial Doppler in 2005 with appearances consistent with subclavian steel. Nerve conduction studies and EMG of left arm and hand were normal.
17. Mr Edwards relied on the report of Dr Brooder at page six at paragraph (c) to define thoracic outlet syndrome;
I would consider that at the time of the motor vehicle accident that had occurred on 15 May 2002 Mr Mulligan sustained a musculoligamentous strain injury involving the supporting structures of his left shoulder girdle and the left side of the neck, which was associated with secondary muscular spasm. As a result of the secondary muscular spasm involving the left side of the neck and his left shoulder girdle he has further developed abnormal posturing of his left shoulder girdle, which has then induced a secondary left thoracic syndrome.
18. Dr Pierides had earlier diagnosed levator scapulae strain commenting that the holding of the mail in his left hand away from his body would be relieved by holding the left arm close to his body.
19. The diagnosis of thoracic outlet syndrome was first raised by Dr Biggs on 16 December 2004 and in a letter to Dr Ferres, based this diagnosis on the symptoms and signs, a markedly positive brachial plexus stretch test on the left, a positive Roo’s test and increasing pain and paraesthesiae with downward traction on the arm. Dr Rowe on 1 November 2004 had reported that Mr Mulligan stated that he an ache in the left side of his neck, left trapezius, left interscapular region and left deltoid regions, which was made worse by holding mail in his left hand or operating a computer. Dr Rowe made no formal diagnosis.
20. Dr Burgess, in May 2005 considered that Mr Mulligan had the classical symptoms and signs of cervical disc injury causing a level of neuralgia affecting his upper medial scapular muscles but in particular left ulnar nerve paresis and that he also had the coincidental sign of loss of pulse on raising his left arm. Dr Vicaretti had at that time considered that the symptoms were suggestive of a thoracic outlet syndrome involving his brachial plexus but he could not be certain. Also the increased warmth in his left hand may be part of a post traumatic regional syndrome.
21. Dr Fearnside also obtained a history from Mr Mulligan that cupping of the mail in his left hand (holding it in order to sort it) caused pain and discomfort down the medial border of the forearm and hand. Dr Fearnside considered it was more likely than not that as a result of the accident on 15 May 2002 Mr Mulligan sustained a distraction injury to his neck and left shoulder which resulted in the development of a thoracic outlet syndrome.
22. Dr Gordon was of the opinion that the vascular thoracic outlet syndrome was not the only pathology and that he had injured his shoulder as well. Dr Gordon was also of the opinion that Mr Mulligan should continue physiotherapy directed to the left shoulder region to try to help overcome any postural contribution to the thoracic outlet syndrome.
23. Mr Mulligan was not working at the time he saw Dr Brooder who is a consultant neurologist. Dr Brooder recorded that Mr Mulligan’s pain extended into his left arm, induced by prolonged posturing of his left shoulder and arm, particularly when using a computer or when driving.
24. Dr Whittaker had seen Mr Mulligan in October 2002, 2003 and February 2005. His summary in 2005 was;
Thereafter, he has some persisting left shoulder girdle pain and left sub acromial pain with certain arm movements. Previously, I have noted findings on examination consistent with an underlying scoliosis and left shoulder impingement syndrome. Fortunately his left shoulder impingement syndrome has now resolved. Unfortunately he has (at some stage after the accident) developed some symptoms in the left arm that may well be consistent with brachial plexus irritation , secondary to underlying abnormalities of spinal posture. If this were the case, then it would be very difficult to establish a casual link between the injury dated 15 May 2002, and his subsequent development of left arm symptoms some considerable time thereafter.
It is far more likely that the residual symptoms are the result of an underlying scoliosis with a secondary postural form of thoracic outlet syndrome (or an incomplete thoracic outlet syndrome characterised by predominately lower brachial plexus irritation alone).
25. Earlier in the same report Dr Whittaker had commented;
I have reviewed my previous reports regarding Mr Mulligan. You will note that the initial symptoms were pain predominately around the left shoulder girdle. In the week or two leading up to his assessment in September 2002 (and shortly before resumption of some motor cycle delivery work) he has first noticed some non-specific heaviness in the extensor compartment of the forearm. My report dated 9 October 2002 states this quite categorically, that there has been no pain, numbness or pins and needles in the left forearm. Such a history is not suggestive of a traumatic injury as a result of the incident dated 15 May 2002.
CONSIDERATION AND FINDINGS
26. There was no dispute that Mr Mulligan was injured in the motor cycle accident of 15 May 2002. The issue was whether the effects of that injury had ceased.
27. The medical evidence for about three years following the accident noted essentially the same symptomatology. However it was not until December 2004 that thoracic outlet syndrome was first considered as the appropriate diagnosis by Dr Biggs and confirmed in May 2005 by Dr Burgess. Dr Gordon also confirmed that diagnosis.
28. With the exception of Dr Rowe, who has not examined Mr Mulligan since the diagnosis has been confirmed, all doctors now agree thoracic outlet syndrome is the correct diagnosis.
29. Even Dr Whittaker, upon whom the Respondent relied, accepted that Mr Mulligan has thoracic outlet syndrome, but thought it is very difficult to establish a causal link between the injury dated 15 May 2002 and the subsequent development of left arm symptoms some considerable time thereafter. This led him to the view that it was far more likely that Mr Mulligan’s residual symptoms are the result of an underlying scoliosis with a secondary postural form of thoracic outlet syndrome. The evidence however, is that from at least June 2002 Mr Mulligan was complaining of pain and pins and needles: Dr Ferres. In September 2002 Mr Mulligan was complaining of neck pain referred from the shoulder and discomfort when holding mail in the left hand: Dr Sahukar. Those symptoms were apparent very soon after the accident and, in our view, were attributable to it. Even the Respondent’s neurological surgeon, Dr Fearnside, attributed the heaviness in the left arm and the pain and discomfort down the arm and into the hand as more likely than not being attributable to the accident. And those symptoms have persisted: Dr Brooder.
30. As early as September 2003 Dr Perides noted that mail sorting was Mr Mulligan‘s major problem. In January 2004 Dr Ferres advised against sorting duties. Nonetheless one of his 2004 return to work tasks included v-sorting for 2 hours per day. That he could not continue and this is consistent with his long-standing complaints.
31. It was submitted by the Respondent that v-sorting is ‘trivial’ compared to tiling. We accept that tiling, perhaps for as long as a full day is likely to be a more demanding task than standing for 2 hours at a v-sort. (In this regard we note that we had some reservations about Mr Mulligan‘s claim to be able to affix wall tiles one-handed). However Mr Mulligan’s complaint is that v-sorting involves holding his left arm in a static position and it is this which causes him pain and increased heaviness and pins and needles in his fingers. Tiling, we accept, involves a greater variety of movement of the left arm. In that way, we accept in respect of the present matter, there is almost no commonality between tasks involved in tiling and v-sorting.
32. We therefore find that at the date of the reviewable decision, there was a liability to pay compensation in respect of Mr Mulligan‘s condition, that is, Mr Mulligan continued to suffer from a medical injury as defined by the Act as a result of the work accident on 15 May 2002.
33. Further, Mr Mulligan was precluded by the compensable injury from participating in the section 37 Rehabilitation (Return to Work) Programme dated 17 November 2004.
DECISION
34. The Administrative Appeals Tribunal sets aside the decisions under review and finds:
·that at the date of the reviewable decision there was a liability to pay compensation in respect of Mr Mulligan‘s condition.
·Further, Mr Mulligan was precluded by the compensable injury from participating in the section 37 Rehabilitation (Return to Work) Programme dated 17 November 2004.
.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of MS N ISENBERG, SENIOR MEMBER and DR M E C THORPE, MEMBER
Signed: ............[sgd].............
AssociateDate/s of Hearing 17 July 2006, 29 - 30 August 2006, 05 – 06 September 2006, 27 – 28 February 2007 and 1 March 2007
Date of Decision 20 March 2007
Counsel for the Applicant Tony Edwards
Solicitor for the Applicant Phillip Young
Counsel for the Respondent Geoffrey Johnson
Solicitor for the Respondent Graham Jones
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