Nguyen-Kieu and Australian Postal Corporation (Compensation)

[2021] AATA 61

Nguyen-Kieu and Australian Postal Corporation (Compensation) [2021] AATA 61 (28 January 2021)

Division:GENERAL DIVISION

File Number(s):      2019/1721

Re:Chinh Nguyen-Kieu

APPLICANT

AndAustralian Postal Corporation

RESPONDENT

Tribunal:Senior Member Linda Kirk
Dr Peter Fricker

Date:28 January 2021

Place:Canberra

The Reviewable Decision is set aside and in substitution, the Tribunal finds that, as at 25 September 2018 and presently, the Applicant’s accepted condition is ongoing and the Respondent is liable to pay compensation to the Applicant pursuant to sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

………………..……………………
Senior Member Linda Kirk
Dr Peter Fricker

Catchwords

COMPENSATION – Worker’s Compensation – Commonwealth employee – whether liability should be accepted under sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – chronic rotator cuff impingement with wear of the bursal surface of the postero-superior rotator cuff - whether the Applicant suffers from an injury – whether an injury other than a disease – whether an ailment – aggravation of an ailment – causation – whether contributed to, to a significant degree, by employment – reviewable decision set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Australian Workplace Safety Standards Act 2005 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’)

Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth)

Cases

Comcare v Power (2015) 238 FCR 187

Comcare v Reardon [2015] FCA 1166

Comcare v Sahu-Kahn (2007) 156 FCR 536

Reardon and Comcare [2015] AATA 360

Su v Comcare [2011] AATA 934

REASONS FOR DECISION

Senior Member Linda Kirk
Dr Peter Fricker

28 January 2021

1. Ms Chinh Nguyen-Kieu (‘the Applicant’) was born in 1959.  She commenced permanent full-time employment as a mail officer with Australia Post at the Canberra Mail Centre in 1989.

2. On 21 April 2016, a claim for rehabilitation compensation was lodged by the Applicant for ‘an injured right shoulder’ (‘the claimed condition’) with a date of injury being 17 March 2016.[1]

   [1] T6, 17-18.

3. On 26 May 2016, Comcare (‘the Respondent’) issued a Determination accepting liability pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (‘SRC Act’) for ‘aggravation to pre-existing right shoulder tendinosis resulting in subacromial/ subdeltoid bursitis’, with a date of injury of 17 March 2016.[2]

   [2] T15, 28.

4. On 2 June 2016, the Respondent issued a Determination accepting medical treatment pursuant to section 16 of the SRC Act.[3]  On 5 June 2017, the Respondent issued a Determination approving a rehabilitation program.[4]

   [3] T17, 35-19.

   [4] T22, 44-49.

5. On 17 July 2018, at the request of the Respondent, the Applicant was assessed by Dr Anthony Smith, Orthopaedic Surgeon, who subsequently produced a report dated 24 July 2018.[5]

   [5] T31, 60-69.

6. On 1 August 2018, the Respondent issued a fair opportunity letter which foreshadowed the Respondent issuing a Determination no longer accepting liability for the condition.[6]

   [6] T31, 60-69.

7. On 27 August 2018, the Respondent issued a Determination accepting a rehabilitation program.[7]

   [7] T32, 70-75.

8. On 25 September 2018, the Respondent issued a Determination stating that there is no liability to pay compensation for medical treatment pursuant to sections 16, 19 and 29 of the SRC Act, relying on the report of Dr Smith dated 24 July 2018.[8]

   [8] T36, 79-83.

9. On 19 November 2018, the Respondent issued a Reconsideration of Determination affirming the Determination dated 25 September 2018 (‘the Reviewable Decision’).[9]

   [9] T40, 88-89.

10. On 15 April 2019, the Applicant’s solicitors lodged an application for review of the Reviewable Decision with the Administrative Appeals Tribunal (‘the Tribunal’).[10] 

    [10] T1, 1-8.

11. The review application was heard by the Tribunal at a hearing in Canberra on 10 and 11 August 2020. The following witnesses gave oral evidence at the hearing:

    • the Applicant;
    • Dr Maurizio Damiani, Hand and Upper Limb Surgeon; and

    ·Dr Anthony Smith, Orthopaedic Surgeon.

12. The following documents were before the Tribunal:

    ·Applicant’s Statement dated 10 July 2019 (Exhibit A1);

    ·Letter from Dr Damiani to treating GP, Dr Alan Shroot, dated 1 November 2017 (Exhibit A2);

    ·Letter from Dr Damiani to treating GP, Dr Alan Shroot, dated 22 June 2017 (Exhibit A3);

    ·Letter from treating GP, Dr Alan Shroot, to Dr Damiani dated 20 August 2018 (Exhibit A4);

    • Supplementary report of Dr Damiani dated 5 March 2020 (Exhibit A5);
    • MRI of right shoulder completed on 22 August 2018 (Exhibit A6);
    • MRI of right shoulder dated 22 July 2020 (Exhibit A7);
    • Section 37 T-Documents (pages 1-221) (Exhibit R1);
    • Respondent’s Tender Bundle (pages 1-281) (Exhibit R2);

    ·Medical report of Dr Ram Malhotra dated 25 September 2019 (Exhibit R3);

    ·Applicant’s Statement of Facts, Issues and Contentions dated 14 May 2020 (‘Applicant’s SFIC’); and

    ·Respondent’s Statement of Facts, Issues and Contentions dated 29 June 2020 (‘Respondent’s SFIC’).

    LEGISLATIVE FRAMEWORK

13. Sections 14, 16, 19 and 29 of the SRC Act provide for the payment by the Respondent of compensation as follows:

    14       Compensation for injuries

    (1)  Subject to this Part, [the Respondent] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

    …

    16       Compensation in respect of medical expenses etc.

    (1)  Where an employee suffers an injury, [the Respondent] is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as [the Respondent] determines is appropriate to that medical treatment.

    …

    19       Compensation for injuries resulting in incapacity

    (1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.

    (2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula …

    …

    29Compensation for household services and attendant care services obtained as a result of a non-catastrophic injury

    (1)  Subject to subsection (5), where, as a result of an injury (other than a catastrophic injury) to an employee, the employee obtains household services that he or she reasonably requires [the Respondent]  is liable to pay compensation of such amount per week as [the Respondent] considers reasonable in the circumstances, being not less than 50% of the amount per week paid or payable by the employee for those services nor more than $200

    …

14. ‘Injury’ is defined in section 5A of the SRC Act:

    (1)…

    (a)a disease suffered by an employee; or

    (b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

    (c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment;

    …

15. ‘Disease’ is defined in section 5B of the SRC Act as:

    “(1)     …

    (a) an ailment suffered by an employee; or

    (b)an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.”

16. The following relevant definitions appear in section 4(1) of the SRC Act:

    ‘ailment’ means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

    ‘aggravation’ includes acceleration or recurrence.

    ‘medical treatment’ means:

    (a)…        

    (b)therapeutic treatment obtained at the direction of a legally qualified medical practitioner…

    (c)…

    (d)therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be…

    …

17. In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment subsection 5B(2) provides that the following matters may be taken into account:

    (a)the duration of the employment;

    (b)the nature of, and particular tasks involved in, the employment;

    (c)any predisposition of the employee to the ailment or aggravation;

    (d)any activities of the employee not related to the employment; and

    (e)any other matters affecting the employee’s health.

18. This list is non-exhaustive, and subsection 5B(2) specifically provides that the matters listed in the subsection do ‘not limit the matters that may be taken into account.’

19. Subsection 5B(3) of the Act provides that ‘significant degree’ means ‘a degree that is substantially more than material.’

    ISSUES FOR DETERMINATION

20. The issues for determination are as follows:

    (1)Did the Applicant suffer an ‘injury’ as defined in section 5A of the SRC Act, and specifically, is the claimed condition:

    (i)‘an injury (other than a disease)’ as defined in subsection 5A(1)(b) of the Act; or

    (ii)a ‘disease’ as defined in subsection 5A(1)(a) and section 5B(1) of the Act, specifically are the conditions:

    (i)an ‘ailment’ or ‘aggravation’ as defined by section 4 of the Act?

    (ii)contributed to by the Applicant’s ‘employment’ with Australia Post as required by section 5B of the Act? and

    (iii)was this employment contribution ‘significant’ as defined by subsection 5B(3) of the Act?

    (2)Is the Respondent liable to pay compensation for the Applicant’s ‘injury’ pursuant to sections 14, 16, 19 and 29 of the SRC Act?

    EVIDENCE BEFORE THE TRIBUNAL

    Applicant’s employment with Australia Post

21. The Applicant filed a statement dated 10 July 2019 in support of her application.[11] In relation to her employment and work duties she wrote:

    [11] Exhibit A1.

    …

    2. I have been employed by Australia Post in the mail sorting area on a permanent full-time basis for approximately 30 years.

    3. My duties require me to use various machines as well as hand sorting to sort mail.  These have been my duties since commencing at Australia Post.  I have also had other duties in my time at Australia Post.

    4. In previous years, mail sorting duties were more physical in nature, requiring us to also handle parcels up to 16 kilograms.

    5. I had not had any pain of stiffness in my shoulder prior to 17 March 2016.

    Description of Duties

    6. My duties are repetitive in nature, and often require me to lift, reach, and perform overhead work, for extended periods of time.

    7. Each morning, I would be required to work at the barcode machine, which would continually operate.  There were usually four people working at this machine. 

    8. The barcode machine would continuously fill with letters which we would frequently reach up above shoulder and remove.

    9. The team of four people would work quickly and repetitively to prevent the machine from overfilling with letters.

    10. To work at the barcode machine, I would be doing work frequently above my shoulder level for approximately three hours every day.

    11. I would manually sort small and large letters for approximately two hours each day following my return from my lunch break.  Sorting large letter can involve lifting of up to 16 kilograms.

    12. Later in the afternoons, I would operate the MARS machine.

    13. Operating the MARS machine involves repetitively reaching forwards to place letters on the table to be fed into the machine, and then reaching to remove the letters from the stackers.

    14. The MARS machine would be operated for two to three hours per day.

    15. During Sunday operations, extra machine work is required, totalling six to seven hours a day.

    16. I would repeat this sequence of duties each day.

22. The Applicant told the Tribunal that prior to her injury she worked full-time five days a week from 10:39am to 6:30pm, including breaks.  She also worked every second Sunday from 6am to 1:45pm. She worked overtime about once a week.  Her work duties involved sorting parcels and running the Mail and Round Sorter (MARS) machine and the Barcode Sorter (BCS) machine.  She was always busy and worked at a fast pace on both machines.  She worked on the BCS machine until lunchtime for three to four hours and the MARS machine in the afternoon, three to four times a week.  On Sundays she would work the entire shift on one or other of the machines.  Her duties included carrying boxes between five and eight kilograms in weight a distance of less than one metre.

23. The Applicant told the Tribunal that her pre-injury duties were repetitive in nature.  She would work on one stacker for about 30 minutes and then rotate to another.  The stackers are four levels in height and because she is 152cms in height, she had to reach above her to the top level.  The items being sorted were large letters and small parcels into a box. When the boxes were full, she lifted them one at a time to a Kingfisher trolley and moved them to the ULD (Unit Loading Device).  The weight of the box was more than 10 kilograms.  The ULD is approximately 1.5 metres square and one metre high and it has a gate made of steel which the Applicant had to remove and then replace after it was stacked full of boxes one on top of the other.

24. The Applicant confirmed the staff allocation list,[12] and told the Tribunal that she would usually work in a team of five persons but sometimes there would only be two people working when staff were taking leave.

    [12] Exhibit R2, 105.

    Workplace incident

25. On or around 17 March 2016, a health and safety incident report form was completed which noted that the Applicant felt sore in the right arm and shoulder while clearing the MARS machine stackers.[13]

    [13] T3, 10.

26. The Applicant told the Tribunal she injured her right shoulder at work on 17 March 2016. She was on the BCS machine in the morning and the MARS machine in the afternoon.  At the end of the day her shoulder was in pain, but she thought it was because it was over worked.  The next day she felt like she could not move her arm. She told her supervisor about her shoulder when she arrived at work, and she was not required to work on the machines.  Later that day she was sent to see the doctor.  She did not take any time off work following her injury, but she was put onto light duties.

27. A health and safety incident form dated 17 March 2016 was completed in relation to the workplace incident.[14]  The description of the incident was as follows:

    Chinh told supervisor she felt sore / tenderness on her right arm and shoulder after performing MARS machine duty.

    …

    Chinh (sic) information supervisor (Leonard Bernardo) 11 am the following day that her right arm and shoulder are feeling sore due from MARS operation from previous day.  She claimed that she was feeling the pain already due to period of time working on the machines.  She also claiming leading up to the incident that she was feeling tired already after been rostered 2 hours in the Barcode Sorter earlier that morning.  Chinh was offer (sic) to see WRMP and reluctantly went on same day she reported it.[15]

    [14] T4, 12.

    [15] T4, 12.

28. The incident classification type was listed as ‘Minor’.  

29. The Applicant’s supervisor, Mr Bernardo, completed an ‘interview’ with the Applicant, which was recorded as follows:

    Q: how long you have been working on Mars machine in a week?

    A: 2 years

    Q: How many hours on your shift do you work on Mars machine in a week?

    A: 2 hours

    Q: Did you follow the Safe Operating Procedures for clearing the Mars stackers?

    A: Yes, letting the mail slide along the machine stackers into the feeder belt.

    Q: Prior to the incident did you felt (sic) any pain in your arm and shoulder?

    A: Yes, for long period of time working on the machine, pain gradually increases every time I’m rostered on the machine.

    Q: Did you perform any stretches and micro pauses while performing the task?

    A: Yes, to make tired muscle to feel better.

    Q: Can you describe the events led (sic) to the incident that day?

    A: I was rostered at BCS 10:39am for 2 hours and another 15 mins at 4:00pm-4:15pm to cover next shift breaks.  In the afternoon was feeling tired and I was rostered on Mars sequencing starting 4:30pm to 6:20 pm for another 2 hours.  Following day I have reported to my supervisor (Leonard Bernardo) regarding to the pain in my right arm and shoulder.

    Medical treatment

30. The medical certificate completed by the Applicant’s general practitioner on 21 March 2016,[16] diagnosed her as suffering from ‘soft tissue injury to right shoulder / arm / neck’, which the Applicant thought was caused by ‘repetitive strain to right shoulder’.

    [16] T5, 16.

31. On 21 April 2016, the Applicant’s General Practitioner, Dr Amirtharajan Selvakumar, issued a medical certificate for the Applicant.[17]  On the same date, a certificate of physical capacity was completed which noted no overhead work for the right shoulder, no lifting more than 5kg, and recommended an x-ray, ultrasound, physiotherapy and MRI.[18]

    [17] T8, 20.

    [18] T9, 21.

32. On 24 May 2016, a certificate of physical capacity was completed in similar terms to the previous certificate issued.[19] On the same date, Dr Selvakumar provided a medical certificate for the Applicant.[20]

    [19] T12, 25.

    [20] T13, 26.

33. The MRI scan of the Applicant’s right shoulder dated 24 May 2016 reported as follows:[21]

    Referral notes

    Ultrasound torn supraspinatus.

    Report

    There is a flat type acromion process.  There is mild arthritic change involving acromioclavicular joint.  The long head of biceps lies within the bicipital groove and appears intact.  The subscapularis tendon is intact.  There is tendinosis within the supraspinatus.  I cannot identify any full thickness tear.  There is further tendinosis within infraspinatus however once again no partial or full thickness tear.  There is fluid throughout the subacromial/subdeltoid bursa.  No labral tear.

    Comment

    Supra and infraspinatus tendinosis with subacromial/subdeltoid bursitis.  I cannot confirm a full thickness tear on this non contrast MRI.

    [21] T14, 27.

34. On 15 August 2016 the Applicant received a corticosteroid injection and reported that her shoulder pain improved.[22]

    [22] Exhibit R2, 255.

35. The Applicant underwent an ultrasound right shoulder with injection on 26 April 2017.  The report of the procedure noted:[23]

    There is a tiny intrasubstance tear within the supraspinatus at its insertion.  Tendinosis involves infraspinatus and supraspinatus.  

    Biceps appears normal.  Subscapularis is intact.

    The ACJ is non tender.

    The SASD bursa is thickened, impinging in abduction.

    With informed consent and utilising ultrasound guidance and aseptic technique, Lignocaine and Celestone were injected into the right SASD bursa and glenohumeral joint.  No immediate complications were experienced.

    Comment

    A little rotator cuff arthropathy and SASD bursitis, injected.

    [23] T21, 43.

    Physiotherapy treatment

36. The Applicant was referred for physiotherapy treatment by Dr Selvakumar. She saw Adam Townsend, physiotherapist, at the Kingston Physiotherapy and Sports Injury Centre on 24 March 2016. He wrote a letter to Dr Selvakumar dated 31 March 2016 in which he stated:

    I suspect Chinh is suffering with both right hand side cervical dysfunction with nerve root irritation and an overuse injury of the right rotator cuff with possible bursitis.[24]

    [24] Exhibit R2, 248.

1. Mr Townsend provided the Applicant with treatment and a physiotherapy program and encouraged her to rest from aggravating activities until her symptoms settle.

2. On 11 April 2016, the Applicant again saw Mr Townsend, and he wrote a letter of the same date to Dr Selvakumar.  He reported that following four physiotherapy sessions her neck pain had improved but her shoulder pain persisted. In his opinion, she continued to suffer with rotator cuff overuse and right cervical nerve root dysfunction.[25]

   [25] Exhibit R2, 249.

3. The Applicant continued to attend Kingston Physiotherapy and Sports Injury Centre from August to December 2016 for treatment of her right shoulder and continued with her home exercises.[26]

   [26] Exhibit R2, 256-264.

4. In her report dated 8 June 2017, Ms Katie Selway, physiotherapist, wrote:[27]

   … I reviewed Chinh today and she reported no significant change in her symptoms.  She stated that her pain is still intermittent, having ‘good and bad days’.  She continues to complete her prescribed exercises daily.

   On assessment, she is able to achieve end of range flexion and extension although experiences pain from above 90 (degrees) to her end of range.  She is restricted with reaching with hand behind back.

   I believe Chinh’s progress has plateaued with clinic-based physiotherapy.  On Wednesday, 31 May I discussed with David from Recovre, the potential benefit of Chinh undertaking a 3 month Physiotherapist-supervised, gym-based conditioning program to enable her to make further progress with her rehabilitation.

   Chinh was receptive to participating in such a program, and understands that it would involve a significant commitment on her behalf to attend both supervised and progressively self-managed sessions in order to attain the full benefits of such a program.

   The intended aims of the program are to increase upper limb strength and endurance, improved work tolerance, a reduction in pain reporting, and a reversal in her general deconditioning.

   Given Chinh’s status, I recommend she continue on her current work place restrictions, namely avoiding any overhead tasks, and avoiding working on the mail sorting machine.

   [27] T24, 51.

5. In Ms Selway’s report dated 7 September 2017 she stated:[28]

   Chinh has been attending two gym sessions weekly for six weeks now and she is reporting that she feels that her symptoms are similar however her pain-free range of motion has improved along with her scapula control.

   On observation of her gym program, Chinh is now able to isolate her scapulae demonstrating increased control and is becoming less dominating through her upper trapezius muscle and deltoids.  She is able to perform her exercises safely and independently.

   Although Chinh is demonstrating improvements with her strength and range of motion, I still advise and strongly encourage Chinh to avoid any overhead activities at work and at home as this will exacerbate her pain.

   [28] T27, 54.

6. Ms Selway provided another written update in relation to the Applicant’s progress on 9 October 2017.[29]   She reported:

   Chinh attended physiotherapy on 03 October 2017 for her mid program assessment.  Chinh reported that she still experiences intermittent feelings of upper limb heaviness approximately 2-3 times a week.  Chinh stated that she feels better after attending the gym and reports that her pain is mainly through her upper trapezius muscle rather than around her shoulder joint.

   On assessment Chinh demonstrated full range of motion although she reported some pain from 130° to her end of range flexion.  Her hand behind back measurement has improved by 2cm.  She has weakness with isometric loading of her supraspinatus tendon.

   During supervisor of her gym program, Chinh was able to demonstrate scapula control with scapula wall push ups.  Her level of resistance has increased with her scapula and back exercises demonstrating an increase in strength.

   [29] T28, 57.

7. On 16 April 2018, Ms Selway issued a report noting the following:

   Chinh was attending physiotherapy last year and also completed a supervised gym program. She was suffering with her pain as a result of overhead, repetitive activities.

   I recently contacted Chinh who reported that she had continued her gym program independently and she is able to manage her pain when she is not completing overhead, repetitive activities at work.[30]

   …

   I am hopeful that Chinh will be able to continue working with permanent restrictions in place to avoid aggravation of her pain.  If this is able to occur, Chinh will not be required to attend further physiotherapy as she is able to manage her symptoms independently.

   [30] T30, 59.

8. Ms Selway wrote a letter to Dr Maurizio Damiani, Hand and Upper Limb Surgeon, dated 25 October 2018.[31]  She wrote:  

   Chinh was previously receiving physiotherapy treatment from me for right shoulder subacromial bursitis and rotator cuff tendinopathy, which, I discharged her from in April this year.  At the time of her discharge, she was managing her pain well while under the recommendation of permanent restricted duties at work with an additional self-managed exercise program.  Her recommendations included avoiding overhead tasks and were made with the intention to allow Chinh to continue her working life without provoking pain and disability.

   Today, I followed up with Chinh who reported that her shoulder pain has been manageable this year under the recommended restrictions mentioned above.  Her current tasks include sorting small and large letters, sorting small parcel and managing labels as well as quality control (ensuring appropriate distribution of mail).  She stated that she generally experienced 2-3 ‘flare ups’ of her pain weekly which usually follows periods of prolonged upper limb use.  This pain will also refer down her right upper limb and into her neck.  She reported that her pain tends to be worse towards the end of the day.

   …   

   Her shoulder flexion and abduction reproduced pain from 130 (degrees) to 150 (degrees).  This is her end of range motion on her right compared to her left at 160 (degrees).  Her external rotation is normal and her hand-behind-back is slightly restricted at her end of range.  Her inner range internal and external rotation isometric power is normal.  Her isometric power of long head of biceps is also normal however her supraspinatus power is reduced and quickly fatigued.  

   Assessment of her cervical spine demonstrated normal flexion and extension range of motion.  Her right cervical rotation and left cervical lateral flexion is reduced.  Spurling’s test is negative and did not reproduce symptoms.  She did not display any abnormal neurological symptoms on testing.  Performing upper limb tension tests demonstrated a significant reduction of her neural dynamics globally on her right side compared to her left.

   My impression is that Chinh has been suffering from ongoing right shoulder subacromial bursitis as well as rotator cuff tendinopathy.  As Chinh’s pain is provoked by upper limb use, I believe her shoulder is the primary source of her pain and dysfunction.  In addition, Chinh has also developed secondary restrictions, as a result of her shoulder dysfunction, as demonstrated with her upper limb neural dynamics.

   From my assessment above, I recommend that Chinh continues to work under her restricted/modified duties, unless surgical intervention is required.  This will allow her to continue participating at work without provoking further pain and dysfunction. 

   [31] T38, 85-86.

   Post-injury duties and treatment

9. The Applicant told the Tribunal she continues to be limited to light duties and is working the same number of hours.  She no longer works on the two machines.  Following the corticosteroid injections her right shoulder moves a bit better, but it is still painful most days.  She can do the work currently assigned to her although she is in pain.  She takes Voltaren three times a day for the pain, but she tries to avoid taking it if she can and takes a break from it after a few days. Sometimes she takes Panadol three times a day.  She also uses a hot pack on her shoulder to ease the pain.  She was having physiotherapy sessions twice a week and attending a gym program three times a week and was given exercises for her shoulder.  There are some things she cannot do around the home due to the pain in her shoulder.

   Expert medical evidence

   Dr Maurizio Damiani, Hand and Upper Limb Surgeon

10. The Applicant first consulted Dr Damiani in relation to her condition on 18 July 2016 after she was referred to him by Dr Selvakumar.[32]  She presented as a person who worked for Australia Post and she told him her work involved working with machines and sorting mail and also cleaning machines.  She reported that in mid-March 2016 she started to develop problems on her right side which she described as ‘problems with pain from her neck going down to her shoulder and down her arm’.  She had some physiotherapy which improved her neck pain significantly, but she had ongoing pain in her shoulder. She described to him ‘weakness and decreased movement, especially rotating up behind her back as in internal rotation or crossing her arm across her chest.’  The pain affected her during the night and she described noises or crackling in her shoulder.[33]

    [32] Transcript of proceedings, 3

    [33] Transcript of proceedings, 3.

11. Dr Damiani told the Tribunal that when he examined the Applicant on 18 July 2016 he found she was tender in the bursa region of the shoulder. She had loss of the ability to internally rotate or roll her hand up behind her back.  He further found she had ‘multiple impingement signs’ in her right shoulder and ‘palpable crepitus’ which he could feel in her shoulder on the right side when he moved it around.  Following the examination, he looked at the MRI scan which showed evidence of impingement in the Applicant’s shoulder, specifically ‘the formation of a spur and changes in the tendons in the shoulder that a rubbing onto the spur consistent with tendinosis’ and bursitis was also present.  He did not see any evidence of any full thickness tear on examination nor on the MRI.  He recommended non-operative management of the Applicant’s shoulder, specifically a cortisone injection into the bursa and physiotherapy.[34]  The first cortisone injection relieved the Applicant’s symptoms, which proved to Dr Damiani that the pain was coming from her shoulder.[35]

    [34] Transcript of proceedings, 3.

    [35] Transcript of proceedings, 8, 21.

12. During cross-examination of him at the hearing, Dr Damiani explained that the formation of a spur (enthesophyte) is a result of repetitive strain on the coracoacromial ligament causing it to become thicker or abraded and it turns into bone. The ligament only thickens and turns into bone from ‘repeated force over time.’[36]While many studies have shown that it is very common to see symptomatic impingement on a shoulder MRI, what is not common is the ‘bright cysts in the bone’ which can be seen on the Applicant’s MRI scan.[37]

    [36] Transcript of proceedings, 17.

    [37] Transcript of proceedings, 18.

13. Dr Damiani next saw the Applicant on 14 November 2016.  On this occasion she had ‘signs of improvement’ and he recommended additional physiotherapy sessions.  He told the Applicant that he did not recommend surgery unless she could not put up with the pain in her shoulder, and that even post-surgery she was unlikely to return to her normal duties.[38]

    [38] Transcript of proceedings, 4.

14. On 22 June 2017, Dr Damiani examined the Applicant and prepared a report in which he made the following observations:[39]

    Ms Chinh Nguyen Kieu presented to my rooms today. She is having ongoing issues with her right shoulder and this is despite a further cortisone injection. I understand they did trial her to go back to upgraded duties, but I do not think she is coping well with this. She needs to remain on restricted duties. 

    I have examined her shoulder today and looked again at her MRI scans again. I have also spoken to her about which exercises she is doing and I noted she is still has quite significant internal rotation deficit on that side compared to the other side.

    [39] T25, 52.

15. Dr Damiani saw the Applicant again on 1 November 2017. He noted that she had made ‘significant improvements’ with her shoulder but it was not fully recovered. He thought she would benefit from a restrengthening program and that surgery was not required at that stage.  He noted that she continued to have pain in the right side of her neck, and it would be worthwhile her considering a SPECT bone scan to see if there were any inflamed joints in her neck.[40] In relation to this scan, Dr Damiani told the Tribunal that his concerns about the Applicant’s neck were ‘over and above’  those in relation to her shoulder.  He explained:

    … it’s not uncommon to see people with dual pathologies, people who have a combination of shoulder impingement problems and issues with either their joints or discs in their neck.  Many people who have impingement issues in their shoulder will tend to overuse their muscles that lift their arm up, the muscles that attach from the shoulder blade to the neck and when they’re doing a lot of that because they’re protecting the shoulder somewhat it tends to flare up some of the problems that they may have in the neck.[41] (emphasis added)

    [40] Transcript of proceedings, 4.

    [41] Transcript of proceedings, 4.

16. Dr Damiani next saw the Applicant on 20 August 2018.  On examination, he found she had a ‘definite impingement’ problem with ‘pain originating from the shoulder specifically with positive impingement problems from the subacromial region’. He asked her to obtain a new MRI scan which reported she had ‘mild to moderate subacromial bursitis, mildly narrowed subacromial outlet, and a six millimetre intermediate grade tear of the infraspinatus … described as a partial; thickness peripheral tear.’ [42]

    [42] Transcript of proceedings, 5.

17. On 29 August 2018, the Applicant saw Dr Damiani to follow up on the scans performed on 22 August 2018.[43]  He spoke to her about considering surgery to perform a ‘decompression … to create some more space for the affected tendons.’ He issued a quote for surgery on the Applicant’s shoulder,[44] and provided a report noting the following:

    Ms Chinh Nguyen-Kieu presented to my rooms today. The MRI scan shows evidence of quite significant posterior impingement in the subacromial space with severe degeneration of the bursal side of the infraspinatus attachment near supraspinatus attachment. 

    The next step is for her to consider surgery to debride the area and perform a decompression, possibly performing a repair of the tendon as well. I have spoken to her about surgery including the post-operative rehabilitation and recovery and the potential for risks and complications.[45]

    [43] Exhibit A6.

    [44] T33, 76.

    [45] T34, 77.

18. On 26 October 2018, the Applicant saw Dr Damiani again and he issued a report noting the following:

    Just reiterating, this lady has acceptable wear and tear in the shoulder however her work has contributed significantly given the type of work that was required, namely years of overhead sorting. At this stage I still see that the work should be responsible for payment of the treatment of her current shoulder problems. I do not believe she would have been in this situation currently if it had not been for her work.[46]

    [46] T39, 87.

19. In his oral evidence, Dr Damiani confirmed that in his opinion, the Applicant’s impingement problem in her shoulder ‘developed chronically from repetitive overhead and repetitive reaching work in her employment.’  If she had been employed in a desk-based job she would not be suffering from her current condition.  Recent research indicates that individuals with an overhanging acromion bone have a higher risk of developing rotator cuff wear and tear or arthritis in the shoulder joint, but the Applicant’s scans are in the normal range and therefore she is not in this risk category.[47]

    [47] Transcript of proceedings, 6.

20. On 5 March 2020, Dr Damiani issued a report at the request of the Applicant.[48]  As to her diagnosis, Dr Damiani stated:

    The diagnosis that I made for this lady was one of chronic work-related rotator cuff impingement, with wear of the bursal surface of the postero-superior rotator cuff, presenting at the time with impingement pain. This was on the basis of her history of repeated overhead sorting work, the examination findings, the x-ray and MRI findings, and the fact that injections of local anaesthetic adjacent to this tendon problem in the bursa, relieved her symptoms significantly, even if for only the time the anaesthetic was working. I disagree with the diagnosis of Dr Roger Pillemer. The proposed diagnosis would not show improved symptoms with local anaesthetic injections into the subacromial bursa. The diagnosis of cervical degenerative disease made by Dr Anthony Smith is likely to be concurrent with the shoulder condition. I too noted right sided neck pain on consultation 1st November 2017, and suggested further scans to look into this. I am not sure if they have been performed.[49] (emphasis added)

    [48] Exhibit A5.

    [49] Exhibit A5.

21. As to the contribution to the diagnosed condition, Dr Damiani stated: 

    I believe it is more than likely that her condition (of rotator cuff impingement) was contributed to by her employment with Australia Post, given most of her work included overhead sorting over many years.[50]

    [50] Exhibit A5.

22. In his oral evidence, Dr Damiani confirmed that a significant contributor to the Applicant’s impingement condition was her work at Australia Post for more than 30 years.[51]

    [51] Transcript of proceedings, 26.

23. As to whether the need for surgery arises from the diagnosed condition, Dr Damiani opined in his report: 

    The need for surgery arises from the condition diagnosed … above.[52]

    [52] Exhibit A5.

24. Dr Damiani saw the Applicant again on 22 July 2020.[53]  She told him that she was on light duties, but her work involved sorting and she was ‘putting up with [the] impingement pain.’ A new MRI scan was obtained, and it showed ‘a 7.5 millimetre anterior Infraspinatus near full thickness (indistinct) tear’[54] which had progressed since the 22 August 2018 MRI, ‘with tiny superimposed full thickness perforations.’  Dr Damiani told the Tribunal he was not surprised by the changes shown on the MRI scan, as the Applicant’s ‘continued repetitive work with the arm … would continue to put stress on an already worn out tendon.’[55]

    [53] Transcript of proceedings, 7.

    [54] Exhibit A7.

    [55] Transcript of proceedings, 7.

25. Dr Damiani told the Tribunal that he disagrees with Dr Pillemer’s diagnosis of brachial plexus irritation for reason that it is uncommon, and the symptoms and signs do not accord with those he has found on repeated occasions in the Applicant.[56] 

    [56] Transcript of proceedings, 7.

26. Dr Damiani was asked about Dr Smith’s report dated 24 July 2018 in which he opined that the Applicant’s symptoms are neural problems emanating from her cervical degenerative disease. He stated that he does not doubt there is some evidence of cervical degenerative disease / cervical spondylosis that is contributing to the Applicant’s neck problems, and this improved with appropriate physiotherapy treatment.[57]

    [57] Transcript of proceedings, 8.

27. In relation to the findings by Dr Ram Malhotra of moderate right sided carpal tunnel syndrome, Dr Damiani agreed that it can cause pain into the shoulder.  Noting this and other possible contributing factors to the Applicant’s condition, including her age, muscle weakness and/or deconditioning, cervical radiculopathy, and acromioclavicular arthritis, Dr Damiani stated that the most significant contributing factor is the subacromial impingement or rotator cuff impingement.[58]

    [58] Transcript of proceedings, 23, 26.

28. Dr Damiani told the Tribunal that he does not believe the Applicant will ever return to her pre-injury duties for reason that the ‘type of repetitive overhead sorting, lifting duties is not something for a shoulder to be able to continue to put up with.’  Even if she were to have successful surgery to decompress the tendons and make more room for them leading to a settling of the inflammation, if she returned to her pre-injury duties ‘the tendons would not be able to cope well’ and they ‘would potentially reinflame’, and with time the tearing would accelerate.[59]  If she continues with repetitive work, the tendon will further deteriorate and cause ‘further dysfunction’.[60] 

    [59] Transcript of proceedings, 9, 10.

    [60] Transcript of proceedings, 10.

1. In Dr Damiani’s opinion, the Applicant has ‘exhausted all non-operative management’ and if she is at the point where she can no longer tolerate the pain, then surgery is the only option. She will continue to need anti-inflammatory medication or painkillers if the inflammation does not recede, which it may do if she no longer is required to do any repetitive reaching with her arms at work or at home.[61]

   [61] Transcript of proceedings, 9.

2. Dr Damiani described the Applicant as ‘very diligent in her management’ of her condition, and he observed that ‘she would rather be in the work environment putting up with pain than being off work doing nothing.’[62] He confirmed that the Applicant did not manufacture her symptoms with regard to her shoulder condition and said that he would not describe her as a malingerer.[63]

   [62] Transcript of proceedings, 9.

   [63] Transcript of proceedings, 9.

   Dr Anthony Smith, Orthopaedic Surgeon

3. On 17 July 2018, at the request of the Respondent, the Applicant was assessed by Dr Smith.  She told Dr Smith that she had worked for Australia Post on a full-time basis since 1989 doing ‘mail sorting and parcel sorting’.[64]  He did not take a history of her working over or at shoulder height nor of her lifting trays of mail between five and eight kilograms.[65] The Applicant complained of pain in the back of her right shoulder that ran up into her neck and then down her right shoulder with pins and needles in her hand.[66] 

   [64] T31, 63.

   [65] Transcript of proceedings, 51.

   [66] T31, 63; Transcript of proceedings, 51.

4. In his report dated 24 July 2018, Dr Smith wrote the following under the heading ‘Examination’:

   She is in no distress.  She is 154 cm tall and weighs 50 kg.  She has a normal cervical lordosis.  Neck movements are about two thirds the expected range in all directions.  She complains of pain in the neck, on the right side of the neck, with all neck movements.  There is a normal range and rhythm of shoulder movement bilaterally and there is no evidence of impingement on either shoulder.  There is no sensory abnormality in either upper limb.  There is weakness in both upper limbs, which is much more marked on the right side than the left.  The weakness includes pinch and grip and extends from the small muscles of the hand through to an including shoulder elevation on the right and neck rotation to the right is weaker than neck rotation to the left. [67]

   [67] T31, 65.

5. Dr Smith provided the following diagnosis:

   Ms Nguyen-Kieu gives a history that would suggest to me she is suffering from symptomatic cervical degenerative disease.  We all get cervical degenerative disease.  It is part of the normal ageing process. (emphasis added)
   ...  
   We nearly all get bursitis.
   ...

   Once the cervical degenerative process is rendered symptomatic for the first time then thereafter there is no occupational, recreational or domestic activity that one can engage in that is free of the risk of exacerbating/aggravating one’s cervical degenerative disease, osteoarthritis or spondylosis, whichever term one cares to use.

   If one makes the assumption that there was a work exacerbation/aggravation to her previously asymptomatic cervical degenerative disease around 17 March 2016, that would have resolved after a few hours, a day or two, one or two weeks.  She has intermittent symptoms now.  There are no symptoms now that are a consequence of anything that may have happened on or around 17 March 2016.

   It is very common for the symptoms to begin for no reason at all.[68]

   [68] T31, 65.

6. Dr Smith concluded:

   Her current symptoms as described in the body of the report above. Her symptoms are emanating from her cervical degenerative disease. It is highly improbable that her subacromial bursitis is producing any symptoms.[69] (emphasis added)

   [69] T31, 66.

7. Dr Smith included with his report three peer reviewed articles by Dr Jason Eubanks et al,[70] Dr Gandikota Girish et al[71] and Professor Marco Zanetti.[72] He told the Tribunal that these articles support his opinion that spinal degenerative disease in the Applicant’s age is ‘pretty close to 100 percent’ and the other changes in the MRI are ‘fairly common in asymptomatic people.’  When questioned during cross-examination in relation to these articles, Dr Smith agreed that the Applicant did not fit within the cohort of those studied by reason of her injury, gender and age.[73]

   [70] Exhibit R2, 9-13

   [71] Exhibit R2, 14-20

   [72] Exhibit R2, 21-26.

   [73] Transcript of proceedings, 52.

8. During his oral evidence at the hearing, Dr Smith confirmed that in his opinion the Applicant’s symptoms were neurological and consistent with non-cervical and cervical degenerative disease.[74] The MRI dated 24 May 2016 showed ‘age appropriate degeneration’ of the Applicant’s right shoulder.[75]

   [74] Transcript of proceedings, 32-33.

   [75] Transcript of proceedings, 33.

9. On 9 September 2018, the Respondent wrote to Dr Smith requesting further information in relation to the Applicant.  In his report dated 19 September 2018, Dr Smith wrote:[76]

   [76] T36, 82-83.

   … it was my opinion that she was developing symptoms from her cervical degenerative disease.  It was my opinion that it was extremely unlikely she could develop rotator cuff disease, which she also happens to have as part of the normal ageing process as it is affecting her, because or repetitive mail sorting utilising a MARS machine.  (I am not sure what that is, but I cannot imagine Australia Post of any other large employer utilising equipment that will place unreasonable and unusual stresses and strains on their workers shoulders). (emphasis added)

   I still have not seen the results of the original diagnostic ultrasound.

   There was an MRI undertaken of the right shoulder on 24 May 2016, which demonstrated AC joint arthritis.  We nearly all have that.

   …

   She also has rotator cuff disease but no large or full-thickness tears.  In my opinion, her MRI is within normal limits for a woman of 56, as she was at the time of this investigation.

   You have provided me with a letter from Dr Damiani, which is dated 29 August 2018 to the GP.  It is unclear as to whether or not there has been a new MRI.  Dr Damiani describes the presence of severe degeneration of the infraspinatus in the MRI of 24 May 2016.  It is possible there is some deterioration between now and the MRI of May 2016, some 27 months ago.

   When I saw her clinically on 27 July this year, she had no clinical abnormality with regard to shoulder movements on either side.  MRI examinations of the shoulder are commonly over-interpreted.

   …

   I would venture to suggest that, were an MRI to be undertaken of the left shoulder, rotator cuff disease would be demonstrated there.

   It is my opinion that the inexpensive examinations of x-ray and ultrasound should be undertaken on both shoulders in patients with unilateral shoulder problems.  Were MRIs inexpensive, I think that should be done on a bilateral basis as well.  (The whole patient, including both shoulders, are contained within the field of the magnet at the time of an MRI examination. Both sides simply takes an extra 15 or 20 minutes).

   I have no reason to alter the opinion I expressed to you on 17 July 2018.[77]

   [77] T36, 83.

10. Dr Smith referred in his report to two further articles by Dr Beth Shubin Stein et al,[78] and Dr Anthony Miniaci.[79] At the hearing, Dr Smith explained that the Stein article found that AC joint arthritis in adults over 30 is 96 percent and the Miniaci article concluded that that MRIs are ‘open for interpretation’.[80] When questioned during cross-examination in relation to these articles, Dr Smith agreed that the Applicant did not fit within the cohort of those studied by reason of her injury, gender and age.[81]

    [78] Exhibit R2, 30-34.

    [79] Exhibit R2, 35-38.

    [80] Transcript of proceedings, 41.

    [81] Transcript of proceedings, 53.

11. In his oral evidence, Dr Smith viewed the MRI dated 22 August 2018, which he had not previously seen, and confirmed that it does not change his opinion as the tears shown were ‘within the bounds of reason for the passage of time.’[82] He further confirmed that the 22 July 2020 MRI which shows increased tears was also consistent with the passage of time.[83]

    [82] Transcript of proceedings, 40.

    [83] Transcript of proceedings, 41; Exhibit A7.

12. On 26 September 2019, the Respondent wrote to Dr Smith enclosing copies of the T-documents in this application for review, a copy of Dr Pillemer’s report dated 26 September 2019, and an Australia Post Mail Officer Suitable Duties Video.

13. In his brief supplementary report dated 11 October 2019, Dr Smith stated that did not agree with Dr Pillemer’s view that the Applicant suffered from a brachial plexus lesion, given the most common cause of brachial plexus lesions is severe traction trauma, or some form of infective process for a tumour of some kind in the area of the brachial plexus.[84] He noted that: 

    The most common cause of brachial plexus lesions is severe traction trauma, such as a motorcyclist coming off at high speed and grabbing onto a nearby pole.[85]

    [84] Exhibit R2, 49-51.

    [85] Exhibit R2, 51; Transcript of proceedings, 42.

14. In his oral evidence at the hearing, Dr Smith told the Tribunal that there would be less than 100 brachial plexus injuries per annum in Australia.[86]

    [86] Transcript of proceedings, 41.

15. During cross-examination, Dr Smith was given an updated history in relation to the Applicant, specifically that she still has pain in her right shoulder but no longer has pain in her neck or tingling in her rights arm of fingers.  Dr Smith agreed that this could indicate that the Applicant ‘has something wrong with her shoulder’ but the MRI shows that the amount of degenerative disease in the rotator cuff ‘is not very great.’[87]  Dr Smith was asked how a patient with a degenerative shoulder who continues to do repetitive work lifting and carrying weights of up to eight kilograms for about eight hours a day would be affected. He stated that if the person were to carry the load with their arms extended, this could aggravate their shoulders.[88]

    [87] Transcript of proceedings, 51-52.

    [88] Transcript of proceedings, 52.

    Dr Roger Pillemer, Orthopaedic Surgeon

16. On 22 July 2019, the Applicant was assessed by Dr Pillemer and he prepared a report dated 22 July 2019.[89] As to her diagnosis, Dr Pillemer stated:

    Ms Nguyen Kieu then developed discomfort in her right shoulder region on 17 March 2016 and importantly early on had paraesthesia extending down into the fingers of her right hand. These latter symptoms have now settled down. 

    The most important clinical finding today was hyperaesthesia to pinprick in the brachial plexus distribution and in my opinion, this was distinct and present with repeated testing. 

    While she may well have some pathology in the shoulder region, I would be unable to account for her presentation at the moment on the basis of a mechanical problem in her right shoulder.[90]

    [89] Exhibit R2, 42-45.

    [90] Exhibit R2, 44.

17. As to contribution by her employment to her condition, Dr Pillemer opined: 

    Whatever her underlying problem is, noting the nature and conditions of her work and the duration of her work, would suggest that the nature and conditions of her work would need to be regarded as a substantial contributing factor to her present symptoms.[91]

    [91] Exhibit R2, 44.

18. As to future treatment, Dr Pillemer stated:

    In my opinion Ms Nguyen-Kieu needs to see a neurologist with a specific request that an irritative lesion of her right brachial plexus is being suggested. It is also my opinion that this needs to be a consultation and not simply nerve conduction studies.[92]

    [92] Exhibit R2, 44.

19. On 5 December 2019, Dr Pillemer issued a supplementary report.[93] As to whether he agreed with Dr Damiani’s opinion contained in his report dated 28 October 2018, he stated: 

    As noted Dr Damiani feels that Ms Nguyen-Kieu’s pathology is arising from her right shoulder, whereas in my opinion she has a nerve problem and not a primeur problem with her shoulder.[94]

    [93] Exhibit R2, 52-53.

    [94] Exhibit R2, 52.

    Dr Ram Malhotra, Neurologist

20. In or about September 2019, the Applicant’s general practitioner referred her to Dr Malhotra for review.  In his report dated 25 September 2019, Dr Malhotra wrote:

    Thanks for asking me to see Ms Chinh Nguyen-Kieu, 58 years old female, who presented with symptoms onset three years ago (17^th of March 2016).  She has been working with Australia Post for 26 years and doing work including sorting things, moving, tipping and on 17^th March 2016 she developed sore right shoulder.  She could not move her right arm.  She was sent to physio and was given injection also into the right shoulder which worked but she still could not lift her arm much.  She underwent second injection] on 26^th April 2017 and was at the same time doing limited duties and was also doing exercise but the right shoulder could not get better.  The right shoulder is still very painful with limited movements.

    Last year she was sent to the independent doctor and her case was denied.  Chinh went back to see Dr Damiani who asked for second MRI scan of the right shoulder and suggested right shoulder reconstruction/repair.

    Chinh thinks the right arm is still weak but the right shoulder is very sore.  Chinh does not have any tingling or numbness in the right upper limb and her symptoms are now restricted to the right shoulder only.  She can abduct the right shoulder up to 120 degree, can do flexion and extension of the right shoulder and can do rotation of the right shoulder with pain.  Chinh has normal grip strength in the right hand but her right arm feels weak.  Chinh denied any neck pain and no restriction of neck movements.  

    Chinh takes Voltaren or Panadol on as required basis.  She wants to avoid taking any pain medications.

    The neurological examination today revealed no [w]asting of the right upper limb or shoulder girdle.  There is no winging of the right scapula.  The tone, power, deep tendon reflexes, sensations and co-ordination in the right upper limb was normal. 

    The nerve conduction study of the right upper limb revealed evidence of moderate right sided carpal tunnel syndrome.

    The EMG of the right upper limb and shoulder girdle was normal.

    I think Chinh has moderate right sided carpal tunnel syndrome but there is no neurophysiological evidence of right brachial plexopathy.[95]

    SUBMISSIONS

    [95] Exhibit R3.

    Applicant

21. The Applicant continues to suffer from chronic rotator cuff impingement with wear of the bursal surface of the postero-superior rotator cuff as diagnosed by Dr Damiani in his report dated 5 March 2020.[96]  The Applicant continues to require treatment and has been offered surgery by Dr Damiani.  Dr Damiani’s evidence is that the Applicant developed a spur in her right shoulder due to a repeated load to the coracoacromial ligament causing it to blade and turn into bone. This was caused by the repetitive tasks the Applicant was required to perform in her employment, including overhead work with weights of five to eight kilograms for half an hour at a time, and also reaching out in front.[97]  Dr Damiani accepts that the Applicant may have some cervical spondylosis as it is not unusual for there to be neck and shoulder problems present together.

    [96] Exhibit A5.

    [97] Transcript of proceedings, 61.

22. The Tribunal should place great reliance and weight on the evidence of Dr Damiani as he has been able to trace the Applicant’s progression or, lack thereof, of her symptoms over a period of four years, from almost the date of the injury in March 2016.[98] Dr Smith only saw the Applicant on one occasion two years ago, he was unaware of some of the key aspects of her employment duties, and did not know about her progression in the history of her neck pain and pins and needles in the hand.[99]

    [98] Transcript of proceedings, 61.

    [99] Transcript of proceedings, 51.

23. In relation to the factors in subsection 5B(2) of the SRC Act, the Applicant contends that in the Applicant has worked for the Respondent for 30 years and her work is repetitive and her pre-injury duties involved working at or above shoulder height. She has continued working since the injury and her tasks continue to be repetitive. The Applicant did not suffer symptoms in her rights shoulder prior to 17 March 2016 and she was ably performing her duties prior to this date. There is evidence that the Applicant previously suffered symptoms in her neck and in her right arm, but she has not experienced these for at least 12 months. While Dr Malhotra found moderate carpal tunnel syndrome, there is no evidence that this condition is affecting the Applicant in any way.[100]

    [100] Transcript of proceedings, 64.

24. The Applicant continues to suffer from her condition that was caused on 17 March 2016 and her employment continues to contribute to her condition to a significant degree. She continues to require medical treatment for her condition and is entitled to compensation pursuant to section 16 of the SRC Act and she remains incapacitated in respect of the condition. If the Applicant requires surgery, then she would be entitled to compensation pursuant to section 19 of the SRC Act (incapacity benefits) as she will require time off for recovery.[101] 

    [101] Transcript of proceedings, 9.

25. Accordingly, the Applicant contends that the Tribunal can be satisfied that the Respondent is liable to pay compensation pursuant to sections 16, 19 and 29 of the SRC Act. The Reviewable Decision should be set aside, and the determination dated 26 September 2018 should be varied in that liability with respect of sections 16 and 19 benefits should continue to date as at the date of the determination.

    Respondent

26. The weight of the medical evidence compels a finding that it is more likely than not that the Applicant’s problems in her right shoulder are caused by her cervical spondylosis. Dr Smith has diagnosed the Applicant as suffering from cervical spondylosis and he confirmed that once this condition is activated ‘it can come and go’.[102]  A SPECT-CT neck scan was not undertaken in 2017 although it was recommended by Dr Damiani.[103] 

    [102] Transcript of proceedings, 70.

    [103] Transcript of proceedings, 20.

27. The Respondent relies on Dr Smith’s opinion that the Applicant’s right shoulder diagnosis in March 2016 was age-appropriate degeneration. The progression of the inflammation in the right shoulder to rotator cuff impingement was the natural history of degeneration in the Applicant’s right shoulder.  The MRIs in March 2016, August 2018 and July 2020 are consistent with a typical degeneration of a person of the Applicant’s age.[104]Dr Smith’s diagnosis is to be preferred as Dr Damiani is a hand and upper limb surgeon and he stated that he leaves cervical spine issues to spinal surgeons.  Dr Smith is an experienced medico-legal practitioner and he has reviewed the reports of the other doctors who have examined the Applicant over the years together with other relevant material.[105]

    [104] Transcript of proceedings, 71.

    [105] Transcript of proceedings, 72.

28. In terms of the cause of symptoms affecting the Applicant’s right shoulder, the Respondent contends that the opinion of Dr Smith, to the effect that cervical spine degeneration is the likely cause, should be preferred to that of Dr Damiani, noting that Dr Damiani agrees the Applicant is likely to suffer from degeneration affecting her right shoulder as well as cervical spine degeneration.[106] Dr Smith’s opinion takes into account a number of relevant scientific / medical articles that bear upon the issue and support his conclusion.[107] Although they do not relate specifically to the Applicant, these articles are relevant to the theory involved with degenerative conditions of the spine and the shoulder.

    [106] Respondent’s SFIC at 9.

    [107] Respondent’s SFIC at 9.

29. Alternatively, if the Tribunal finds that symptoms affecting the Applicant’s right shoulder were caused or contributed to by her employment, the Respondent contends that such symptoms were likely to have been a temporary exacerbation of a pre-existing degenerative condition, the effects of which ceased a number of weeks after the incident of 17 March 2016.[108]

    [108] Respondent’s SFIC at 9.

1. In relation to the factors in subsection 5B(2) of the SRC Act, the Respondent contends the Applicant has been employed as a mail officer for approximately 30 years, which is a significant portion of her working life. However, the repetitive sorting of letters and parcels of different weights including on occasions at or above shoulder height is unlikely to be the cause for the development of her symptoms given that the tasks undertaken by a mail officer have been the subject of ergonomic design and testing to ensure they are consistent with the National Standard for Manual Tasks developed in accordance with the Australian Workplace Safety Standards Act 2005 (Cth).[109]   

   [109] Respondent’s SFIC at 9.

2. In relation to the Applicant’s pre-disposition to the condition, the available medical evidence, including from Dr Damiani, indicates that the Applicant suffers from degeneration affecting her right shoulder, which is typical for someone of her age. The available evidence also indicates that the applicant has not suffered from an injury simpliciter affecting her right shoulder whilst at work, such as a rotator cuff tear, which would likely produce immediate and ongoing pain.[110]

   [110] Respondent’s SFIC at 9.

   CONSIDERATION AND REASONS

3. The Tribunal has considered the parties’ submissions, the evidence of the witnesses at the hearing, and all the documentary material before it. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.

4. The Tribunal’s role on review is established by section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) which provides that the Tribunal ‘may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’. As Woodwood J explained in McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357 (‘McDonald’), the Tribunal is effectively required by section 43 of the AAT Act to put itself in the position of the decision-maker and, based on the material before it, make its own decision. 


5. As Katzmann J explained in Comcare v Power [2015] FCA 1502 (‘Power’), to speak in terms of a party bearing an onus of proof (whether legal or evidential) in proceedings before the Tribunal is apt to mislead. After referring to McDonald and noting that it was common ground that the Act did not provide for an evidential onus, Her Honour stated at [63]:

   Here, as Comcare acknowledged in argument, the decision the Tribunal was reviewing was whether or not to terminate Ms Power’s compensation entitlements arising from the compensable injury in light of changed circumstances. It was not reviewing a decision based on fresh evidence as to whether compensation should ever have been awarded. In a case such as this, as Woodward J explained in McDonald at 359, having considered all the available evidence, if the Tribunal was left in a state of indecision, it should have been resolved in the claimant’s favour.

6. Her Honour later observed at [70]:

   Nonetheless, I accept that it is reasonable to say, as a practical matter, that Comcare would have to persuade the Tribunal of the circumstances which justify a finding that compensation payments should no longer be made. The statement the Tribunal made in the present case that Comcare did not discharge its onus should be taken to mean that the Tribunal was not persuaded that Ms Power was no longer suffering from the effects of the compensable injury.

7. Accordingly, although there is no legal or evidentiary onus, ‘as a practical matter’ the Respondent must persuade the Tribunal of the circumstances that justify a finding that there is no liability for the claimed condition. 

   Medical experts

8. The Tribunal has had regard to the qualifications and experience of the two medical experts, Dr Damiani and Dr Smith.  It notes that Dr Damiani is a Hand and Upper Limb surgeon and he completed his surgical training through to Fellowship of the Royal Australasian College of Surgeons and his orthopaedic training through the Australian Orthopaedic Association. He been practising in this specialty since 2006.[111] Dr Smith practiced as an orthopaedic surgeon in public hospitals and private practice and continues to see patients for a second opinion. He has been writing medico-legal letters since 1979.[112]  On the basis of this evidence, the Tribunal finds that both medical experts are more than suitably qualified to make a diagnosis of the Applicant’s condition.

   [111] Transcript of proceedings, 2.

   [112]  Transcript of proceedings, 31.

9. The Tribunal has placed limited weight on Dr Pillemer’s diagnosis of the Applicant’s condition as of brachial plexus irritation for reason that the experts, including Dr Malhotra, agree that it is a very uncommon condition and affects very few patients, and it is does not accord with the symptoms and signs displayed by the Applicant. 

10. On the basis of the evidence before it, particularly the evidence of the medical experts, the Tribunal makes the following findings in relation to the Applicant’s claimed condition, and whether her employment was a significant contributing factor.

11. Did the Applicant suffer an ‘ailment’ or an ‘aggravation’ of an ailment for the purposes of section 4 of the SRC Act?

    Diagnosis of the Applicant’s condition

12. The Tribunal is satisfied that, on the basis of the evidence of the medical experts, the diagnosis of the Applicant’s condition is chronic rotator cuff impingement with wear of the bursal surface of the postero-superior rotator cuff as diagnosed by Dr Damiani in his report dated 5 March 2020.  In his opinion, the Applicant developed a spur in her right shoulder due to a repeated load to the coracoacromial ligament causing it to turn into bone. Dr Damiani’s conclusion in relation to the Applicant’s diagnosis is based on his consultations with the Applicant and his examinations of her over a period of four years, his review of the x-ray and MRI findings, and the injections of local anaesthetic the Applicant received in her shoulder which significantly received her symptoms that strongly suggests that the source of her symptoms is her right shoulder. Dr Damiani also bases his opinion on his review of x-ray and MRI findings, including the presence of ‘bright cysts in the bone’ on the MRI scan indicating the existence of a spur.

13. Dr Smith’s opinion that the diagnosis of the Applicant’s condition is cervical degenerative disease/cervical spondylosis is not inconsistent with Dr Damiani’s opinion that the Applicant’s condition is chronic rotator cuff impingement.  As Dr Damiani explained, it is not uncommon for patients to have dual pathologies, specifically having a combination of shoulder impingement problems and issues with their joints or discs in their neck. Patients with impingement issues will tend to overuse the muscles that attach from the shoulder blade to the neck so as to protect their shoulder and this tends to flare up any neck problems they may have.[113]  The Tribunal accepts, on the balance of probabilities, that the Applicant suffers from both chronic rotator cuff impingement and the effects of cervical degenerative disease.  In making this finding, the Tribunal notes Dr Smith’s evidence at the hearing, after receiving an update in relation to the Applicant’s current symptoms which do not include pain in her neck or tingling in her right arm or fingers, that this could indicate the Applicant ‘has something wrong with her shoulder’.[114]

    [113] Transcript of proceedings, 4.

    [114] Transcript of proceedings, 51.

14. The Tribunal accepts that the chronic rotator cuff impingement from which the Applicant suffers is a physical ailment which developed gradually due to a repeated load to the coracoacromial ligament causing it to turn into bone and form a spur. The Tribunal is satisfied that the Applicant’s claimed condition is an ‘ailment’ as defined in section 4 of the SRC Act.

    2) Did the Applicant’s employment contribute, to a significant degree, to the ailment such that she has a ‘disease’ under subsection 5B(1) of the SRC Act?

15. For the Applicant’s ‘ailment’ to be a ‘disease’ as defined in subsection 5B(1) of the SRC Act, it must have been contributed to, to a significant degree, by the Applicant’s employment with Australia Post.

16. As Mortimer J noted in Comcare v Reardon [2015] FCA 1166 at [75] ‘… the question of causation, contribution or aggravation by employment for the purposes of the definition of ‘disease’ is … a determination for the merits reviewer on the evidence and material before it’.

17. In Comcare v Power (2015) 238 FCR 187 (‘Power’), Katzmann J discussed the meaning of ‘to a significant degree’ in section 5B(2) of the SRC Act, which is defined in subsection 5B(3) of the SRC Act as ‘a degree that is substantially more than material’. Her Honour stated, ‘[a] contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial’ at [78], and further at [82] that, ‘… a material contribution is one which is greater than minimal or, one might say, trivial’.

18. Katzmann J considered the previous Compensation (Commonwealth Government Employees) Act 1971 (Cth) which required employment to be ‘a contributing factor to the disease’. The current definition in section 5B of the SRC Act which requires the employment to have contributed “to a significant degree” was inserted by the Safety, Rehabilitation and Compensation and other Legislation Amendment Act 2007 (Cth). After discussing this amendment, Her Honour stated at [93]:

    There is no room for doubt that the purpose of the 2007 amendments was to strengthen the connection necessary between the employment and the contraction or aggravation of a disease. Including a definition of “significant” as “substantially more than material” makes this abundantly clear. In other words, it is insufficient that the contribution of the employment be “more than trivial”; it had to be substantially more than trivial.

19. In Reardon and Comcare [2015] AATA 360 at [37] Member Taglieri summarised the meaning of ‘contribution to a significant degree’ as follows:

    I must be satisfied on the balance of probabilities, that contribution by employment was to a significant degree and it ought not be left in the area of possibility or conjecture. Further, whether employment contributed to a significant degree, is a question of fact to be determined by the Tribunal in each case.

20. In Su v Comcare [2011] AATA 934 at [5] Member Webb expressed the requirement of ‘contribution to a significant degree’ as follows, when approving of Justice Finn’s approach to interpretation in Comcare v Sahu-Kahn (2007) 156 FCR 536:

    When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury. (Footnotes omitted).

21. The Tribunal has had regard to the evidence before it and the relevant authorities cited above, and finds for the reasons detailed in the following paragraphs that the Applicant suffered a ‘disease’, defined as an ‘ailment’ that was ‘contributed to, to a significant degree’, by her employment.

22. The Tribunal has found that the Applicant’s ailment is chronic rotator cuff impingement in her right shoulder as diagnosed by Dr Damiani.  According to Dr Damiani, this ailment ‘developed chronically from repetitive overhead and repetitive reaching work in her employment.’  In his opinion, the Applicant’s work ‘has contributed significantly’ [to her ailment] given the type of work that was required, namely years of overhead sorting’. In his view the Applicant would not be suffering from this condition ‘if it had not been for her work.’[115]

    [115] T39, 89.

23. On the basis of Dr Damiani’s evidence, the Tribunal is satisfied on the balance of probabilities that the Applicant’s employment contributed, to a significant degree, to her ailment and therefore it satisfies the definition of ‘disease’ in subsection 5B(1) of the SRC Act.

24. In making this finding, the Tribunal has also had regard to the factors in subsection 5B(2) of the SRC Act which lists matters that the Tribunal may take into account in determining whether an ailment was contributed to, to a significant degree, by the employee’s employment.

    (a)      The duration of the employment

25. The Applicant commenced employment with Australia Post in 1989.  In March 2016, the Applicant had worked continuously for the Respondent for a period of some 26 years as a mail officer. Her work duties throughout this period were repetitive and involved working at or above shoulder height.  The Applicant did not suffer symptoms in her right shoulder before 17 March 2016 and she was satisfactorily performing her work duties prior to this date. Since the date of her injury she has continued to work full-time.  Her current duties continue to be repetitive although she no longer works on the MARS or BCS machines. 

26. As outlined above, the Tribunal accepts Dr Damiani’s diagnosis of the Applicant’s condition as chronic rotator cuff impingement in her right shoulder exacerbated, but not necessarily caused, by a spur which developed gradually due to a repeated load to the coracoacromial ligament causing it to turn into bone.   The Applicant’s nearly three decades of employment with Australia Post as a mail officer and her performance of repetitive duties at or above shoulder height placing a repeated load on her upper limbs, support a finding that the Applicant’s employment contributed to a significant degree to the ailment from which she suffers.

    (b)      The nature of, and particular tasks involved in, the employment

27. The Applicant’s duties as a mail officer involved operating the MARS and BCS machines for periods of up to three hours in the mornings and afternoons, including breaks. This work required repetitive tasks, including overhead and above shoulder work with weights of five to eight kilograms, and lifting and reaching forward, for half an hour at a time. Her other duties including lifting and moving boxes of up to 10 kilograms to trolley and then to a ULD.  The Applicant’s short stature is such that the heights at which she needed to reach to perform her work duties were relatively higher than those for her taller work colleagues.

28. As the Tribunal accepts the Applicant’s diagnosed condition is chronic rotator cuff impingement in her right shoulder exacerbated, but not necessarily caused, by a spur which developed gradually due to a repeated load to the coracoacromial ligament, the repetitive tasks including above shoulder height, the reaching in front of her body, and the lifting and moving of weights of up to 10 kilograms are factors which support a finding that the employment contribution to the Applicant’s condition was significant.  The Tribunal finds that the nature and particular work tasks the Applicant was required to perform contributed significantly to the development of her ailment.

    (c)       Any pre-disposition of the employee to the ailment

29. The Tribunal finds that the Applicant’s diagnosed condition is chronic rotator cuff impingement in her right shoulder exacerbated, but not necessarily caused, by a spur which developed gradually due to a repeated load to the coracoacromial ligament.  It accepts the evidence of Dr Damiani that it is not uncommon for patients to have dual pathologies, including a combination of shoulder impingement problems and cervical degenerative disease.  However, there is no evidence to support a finding that the cervical degenerative condition / cervical spondylosis from which the Applicant also suffers pre-disposed her to her rotator cuff impingement condition.  Dr Damiani’s evidence was that patients with impingement issues will tend to overuse the muscles that attach from the shoulder blade to the neck so as to protect their shoulder and this tends to flare up any neck problems.  Therefore, whereas shoulder impingement may pre-dispose a patient to neck problems, there is no medical evidence before the Tribunal to support a finding that existing neck problems pre-dispose a patient to shoulder impingement.  Accordingly, the Tribunal finds that the Applicant’s cervical degenerative condition did not pre-dispose her to the development of her ailment.

    (d)      Any activities of the employee not related to the employment

30. There was no evidence presented to the Tribunal that would support a finding that the Applicant’s activities outside of work contributed to the development of her ailment.

    (e)       Any other matters affecting the employee’s health

31. There is no evidence before the Tribunal that the Applicant suffers from any other health conditions or that there were any other matters that affected her health that could have contributed to the development of her ailment.

    CONCLUSION

32. On the basis of the evidence before it, the Tribunal is satisfied that the Applicant’s ailment was contributed to, and continues to be contributed to, to a significant degree, by the Applicant’s employment. It therefore finds that the Applicant suffers from a ‘disease’ for the purposes of subsection 5B(1) of the SRC Act.

33. The Tribunal is satisfied, for the reasons outlined above, that the Applicant suffered an ‘injury’ within the meaning of section 14 of the SRC Act. The Respondent is therefore liable to pay compensation to the Applicant for the injury under sections 16, 19 and 29 of the SRC Act.

    DECISION

34. The Reviewable Decision is set aside and in substitution, the Tribunal finds that, as at 25 September 2018 and presently, the Applicant’s accepted condition is ongoing and the Respondent is liable to pay compensation to the Applicant pursuant to sections 16, 19 and 29 of the Safety, Rehabilitation and Compensation Act 1988 (Cth).

I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

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Associate  

Dated: 28 January 2021

Date(s) of hearing:	10 and 11 August 2020
Applicant’s representative:	Mr Joshua Carroll, Slater and Gordon Lawyers
Respondent’s representative:	Mr Scott Moloney, Moray and Agnew Lawyers