Ngo and Australian Postal Corporation

[2004] AATA 1033

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1033

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/188

GENERAL ADMINISTRATIVE DIVISION		)               N2004/918
Re		MONG CHI NGO

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member

Date1 October 2004

PlaceSydney

Decision (1) The reviewable decision of 19 December 2002 is set aside and this matter remitted to the Respondent with the direction that the Applicant is entitled to compensation for the work- caused injury of carpal tunnel syndrome right wrist.
(2) The reviewable decision of 2 December 2003 relating to permanent impairment is affirmed.
(3) The Respondent is to pay the Applicant's costs.

(Sgd) M D ALLEN

………………………………
  Presiding Member

CATCHWORDS

Workers Compensation – claim for carpal tunnel syndrome right wrist arising from the nature and conditions of employment together with claim for permanent impairment – the Respondent found to have a continuing liability to make compensation payments in respect of the Applicant’s right wrist but  claim for permanent impairment refused

Safety, Rehabilitation and Compensation Act 1988 s14, s24

Re Liu and Comcare (2004) 79 ALD 119
Hill and Commonwealth of Australia [2003] NSWSC 1025
Treloar and Australian Telecommunications Commission (1990) 26 FCR 316
Comcare v Filla (2002) 67 ALD 24

REASONS FOR DECISION

1 October 2004   Senior Member M D Allen
  Dr M E C Thorpe, Member      

1.      This matter concerned two reviewable decisions by the Respondent.  The first ceased liability for what was described in the primary determination as a “right wrist condition”. The second reviewable decision rejected a claim for permanent impairment in respect of the Applicant’s right wrist.

2.      The reviewable decision ceasing liability in respect to the Applicant’s right wrist is not in a form that is an acceptable determination given the decision of the Administrative Appeals Tribunal in Re Liu and Comcare (2004) 79 ALD 119. That however is a formal defect and the real question before the Tribunal was whether the Applicant’s carpal tunnel syndrome had been caused or contributed to by the nature of her employment with the Respondent, and if her incapacity occasioned by the carpal tunnel syndrome is permanent.

3.      There is no doubt that the Applicant does suffer from carpal tunnel syndrome.  Only two medical practitioners rejected this diagnosis.  Dr Isaacs, a hand surgeon on 7 May 2002 opined that the Applicant suffered a repetitive strain injury aggravated by work duties using a coding machine.

4.      Neurologist Dr O'Neill opined that the Applicant’s symptoms were psychosomatic and that she did not have carpal tunnel syndrome.

5.      Given that Drs McGill, Richards, Lawford and Professor Sambrook (all rheumatologists) and Dr Chase, a specialist in occupational medicine, all diagnosed carpal tunnel syndrome and had ultrasound evidence to confirm their diagnosis, we have no hesitation in rejecting the opinions of Drs Isaacs and O’Neill and we find as a fact that the Applicant’s injury is that of a carpal tunnel syndrome.

6.      In passing, we note that Dr Lawford, who in his report of 19 May 2004 also referred to right lateral epicondylitis and de Quervain’s tenosynovitis, stated in evidence that the symptoms of these conditions appear to have resolved and that currently he was treating the Applicant for carpal tunnel syndrome.

7.      Dr Lawford and Professor Sambrook opined that the Applicant’s work with the Respondent contributed to or aggravated the carpal tunnel syndrome whereas Dr McGill and Dr Chase are of the opinion that the Applicant’s condition is constitutional, and that she would be suffering the same degree of impairment whether or not she had ever been employed by the Respondent.

8.      As was pointed out by Cripps AJ in Hill v Commonwealth of Australia [2003] NSWSC 1025, the opinion of any medical practitioner is only as good as the accuracy of the history obtained.

9.      From the evidence in this Tribunal we make the following findings as to the Applicant:

I.She was born in what was then the Republic of South Vietnam in 1956 and came to Australia via Malaya in 1980.

II.In 1993 she commenced work with the Respondent.  Prior to commencing work with the Respondent she was examined by a Government medical officer and found to be in good health.

III.In 1995 she experienced pain in her right arm and neck while performing work duties.  An incident report was lodged by her but the condition seems to have resolved.  An X-ray in 2001 revealed a narrowing of the C5/6 cervical disc space but nothing turns upon that in these proceedings.

IV.The Applicant experienced similar pain to that experienced in 1995 during 1997.  She consulted her general practitioner but the condition resolved.

V.In November 1999 the Applicant transferred to the Sydney West letter facility at Strathfield.  There she was employed upon a letter sorting machine known as a “Spectrum 10” machine.  Part of her duties included “coding” that is, entering post code numbers into a keyboard.

10.     The Tribunal was shown a film of the Spectrum 10 machine in operation.  Coding is done with the right hand onto a small keypad.  We accept the Applicant’s evidence that the rate of work required was to enter the post codes from between 750 to 850 mail items per 45 minutes.  Duties were rotated but the Applicant would have had up to four periods of 45 minutes each undertaking coding work during her shift.

11.     On 16 August 1999 the Applicant consulted her General Practitioner, a Dr Garber and gave him a history of one month waking at night with tingling and numbness in the tips of her fingers in the right hand.  Dr Garber made a provisional diagnosis of carpel tunnel syndrome and prescribed the use of a wrist splint at night.  In September 1999 the Applicant returned to Dr Garber complaining of ongoing symptoms and he instructed her in the correct strapping of the wrist guard.  Dr Garber’s clinical notes read inter alia “ongoing problem with right carpal tunnel syndrome but using incorrect wrist guard”.

12.     These consultations with Dr Garber are important in the aetiology of the Applicant’s injury.  Although in evidence in chief she stated that it was not until she undertook coding duties that she experienced numbness and tingling in her fingers, the clinical notes of Dr Garber clearly reveal that the Applicant had suffered the symptoms of carpal tunnel syndrome prior to commencing work at the Sydney West Mail facility and undertaking coding.

13.     That the Applicant’s symptoms of a carpal tunnel syndrome first arose at home is confirmed by the history taken by Dr Chase when the Applicant first consulted him on 23 August 2001, at the request of the Respondent.  Dr Chase refers to an exercise bike and this was disputed by the Applicant.  Just what the Applicant did say to Dr  Chase we do not need to resolve but we are satisfied that Dr Chase correctly obtained a history of symptoms beginning at home.  However the history he obtained was that symptoms were first experienced in 2001.

14.     Dr Chase provisionally diagnosed carpal tunnel syndrome and recommended that the Applicant have surgery if that diagnosis was confirmed by nerve conduction studies.

15.     The Applicant’s evidence was that her symptoms in 1999 resolved and in 2000 she had no problem.  However in 2001 she again experienced problems in her right hand.

16.     Upon lodging an incident report with the Respondent the Applicant was referred by the Respondent first to Dr Chase and then to Dr McGill. 

17.     In his report of 11 October 2001 Dr McGill expressed the opinion that the Applicant’s work duties may have increased the level of her symptoms although the carpel tunnel syndrome itself was constitutional in origin.  Dr McGill also referred to the Applicant having small carpal tunnels but at the hearing he stated he had been wrong with regard to that.

18.     The Respondent has obtained several reports from Dr McGill and we have had the benefit of hearing him give his evidence together with Professor Sambrook.  It is not unfair to either specialist to sum up their opinions by stating that whereas Dr McGill accepts that the Applicant does indeed have a carpal tunnel syndrome he believes it is a constitutional condition although whilst employed in keying duties she will experience an increased level of symptoms.  Professor Sambrook on the other hand believes that the repetitive duties performed by the Applicant at work have made the underlying condition worse.

19.     That work has made the underlying condition worse was also the opinion of Dr Lawford who is now the Applicant’s treating rheumatologist.  Dr Lawford was not aware of the previous history of symptoms of carpal tunnel syndrome in 1999 but in the course of his evidence he still adhered to his belief that work had contributed to the condition.  He explained this by referring to repetitive work thickening the tendons and the tissues within the carpal tunnel and thus compressing the nerves.

20.     Professor Sambrook in the course of his evidence referred to a meta-analysis by Abbas et al which concluded that force and repetition were significant risk factors for carpal tunnel syndrome.  A reading of the paper reveals that six risk factors were considered and that force was not, in the relevant passage, linked to repetition so that it seems clear that when the authors of the paper refer to force and repetition being risk factors the “and” is disjunctive and repetition alone is sufficient.

21.     In any event, Professor Sambrook not only referred to this paper but reiterated his position as expressed in his report of 25 July 2003 namely: “In someone who does have a pre-disposition to carpal tunnel, repetitive limb activity can result in aggravation of the symptoms”.  He added that he believed that the condition had become permanent.

22.     In a report to an Australia Post medical practitioner dated 8 February 2002, Dr Richards, rheumatologist opined:

“…she is at risk long term of aggravating her median nerve entrapment if she does work that involves long hours of repetitive wrist flexion/extension activities.”

23.     Given the mechanism of the cause of carpal tunnel syndrome as explained by Dr Lawford and the paper by Abbas et al referred to by Professor Sambrook, we prefer the evidence of Dr Lawford and Professor Sambrook that implicates work at the Western Sydney Mail Distribution Centre as a contributing cause to the Applicant’s now permanent carpal tunnel syndrome.  As was pointed out in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323, all that is required is that the relevant aspects of the employment add their measure to the creation of the condition.

24.     The decision in matter No N2003/188 will therefore be set aside and the matter remitted to the Respondent with the direction that the Applicant is entitled to ongoing compensation in respect of her carpal tunnel syndrome right wrist.

25.     So far as the claim for permanent impairment is concerned, both Dr McGill and Professor Sambrook agreed that an operation being a carpal tunnel release will improve her symptoms.  Dr Lawford does not believe that at present a carpal tunnel release will improve her symptoms.

26.     We do not consider that a carpal tunnel release can be regarded as a rehabilitation treatment as that term was discussed in Comcare v Filla (2002) 67 ALD 24. At 314 the Court quotes the Shorter Oxford Dictionary definition of the word “rehabilitate”.  An operation to release the carpal tunnel alleviates the symptoms of carpal tunnel syndrome but does so by making a permanent change in the physiology of the patient and is thus more than “rehabilitation”.

27.     The Applicant’s treating rheumatologist Dr Lawford was of the opinion that the Applicant’s condition could improve or it may progress. He stated in cross-examination that the carpal tunnel syndrome has remained mild and that it has improved.

28.     Given the opinion of Dr Lawford, we are not prepared to say that the Applicant’s carpal tunnel syndrome has a permanent impairment percentage of 10 or more on the Comcare Tables.

29.     The decision in matter no N2004/918 is therefore affirmed.

30.     We do not believe that the matter of permanent impairment has increased the costs of the proceedings before us; the major debate was as to any work related cause of the condition, consequently we can see no reason to make any other order but the usual order directing the Respondent to pay the Applicant’s costs.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen; Dr M Thorpe, Member

Signed:          (E.Pope)
  Associate

Date/s of Hearing  26 & 27 August 2004
Date of Decision  1 October 2004
Counsel for the Applicant         Mr L Grey
Solicitor for the Applicant          Slater & Gordon
Counsel for the Respondent     Mr N Polin
Solicitor for the Respondent     Forners Solicitors