Palacio and Australian Postal Corporation
[2007] AATA 1853
•15 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1853
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/2571
GENERAL ADMINISTRATIVE DIVISION ) Re IMELDA PALACIO Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Dr JD Campbell Date15 October 2007
PlaceSydney
Decision The decision under review is affirmed. .................[sgd].............................
Dr JD Campbell
Member
CATCHWORDS
Workers compensation – injury to right shoulder – disability accepted for aggravation of pre- existing condition – issue as to whether a pre-existing condition existed – decision under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 – sections 14 and 62
REASONS FOR DECISION
15 October 2007 Dr J.D Campbell 1. Mrs Imelda Palacio was a part time employee of Australia Post, working 25 hours per week, when she lodged a claim for compensation on 4 July 2006. Mrs Palacio defined her injury in that claim as pain in the right clavicle and shoulders, and protrusion of the right clavicle. The claim was denied on 14 July 2006, and this decision was affirmed on reconsideration by Australia Post on 3 November 2006.
2. In a further reconsideration determination pursuant to section 62(1) of the Safety Rehabilitation and Compensation Act 1988 (“the Act”), dated 12 May 2007, Australia Post revoked the decision of 3 November 2006 (Exhibit R5). In the 12 May 2007 decision, Australia Post accepted liability pursuant to section 14 of the Act, and agreed to pay Mrs Palacio compensation for aggravation of a pre-existing tendonitis of the right rotator cuff and for subacromial subdeltoid bursitis.
3. In seeking review of the accepted liability, counsel for the Applicant is seeking an outcome from the Tribunal which he believes to be more favourable to Mrs Palacio in the longer term. The outcome being sought is a finding that the injury to Mrs Palacio’s right shoulder was a fresh injury caused by the nature and condition of her employment, rather than an aggravation of a pre-existing constitutional degenerative condition of the right shoulder.
4. Discussion ensued as to the benefit of such a finding to Mrs Palacio in the event that such a finding was made by the Tribunal. It was drawn to the attention of Mrs Palacio’s counsel that even if such a finding were to be made, a further Tribunal hearing a claim for permanent impairment was not bound by any decision that I may make as a consequence of this hearing. The hearing was adjoined for the parties to consider such matters, but upon resumption, counsel for Mrs Palacio indicated an intention to pursue the issue raised on behalf of their client.
issues
5. The relevant issues in this matter are:
(a)What is the nature of Mrs Palacio’s right shoulder conditions as a consequence of her injury in June 2006?
(b)Did a constitutional degenerative condition exist in Mrs Palacio’s right shoulder prior to the injury of her right shoulder in June 2006?
(c)Are the reasons nominated in the reconsideration decision of 12 May 2007 an appropriate reflection of the nature of the injury for which liability has been accepted?
decision
6. For the reasons nominated later in this decision I find that:
(a)The nature and extent of Mrs Palacio’s right shoulder conditions following, but not necessarily a consequence of, her injury in June 2006 are:
· Rotator cuff tendinosis, involving the supraspinatus tendon (extensive tendonitis), the infraspinatus tendon (tendonitis and an infrasubstance tear observed by the ultrasonographer) and subacromial subdeltoid bursitis;
· Subluxation of the right sternoclavicular joint;
· Arthritis of the right acromioclavicular joint with a subacromial spur (osteophyte).
(b)On the balance of probabilities, Mrs Palacio was suffering from a pre-existing constitutional degenerative process at the time she suffered an injury in June 2006.
(c)The reasons nominated in the reconsideration decision of 12 May 2007 are an appropriate reflection of the nature of the injury for which liability was accepted, with the pre-existing degenerative (constitutional) condition being aggravated by the nominated work activities undertaken by Mrs Palacio.
background
7. Mrs Palacio commenced working with Australia Post in late 2000 as a mail officer, working five hours a day (between 10pm and 3am) for five days a week. Mrs Palacio was medically examined prior to commencing employment with Australia Post, with her physical height determined at 155cms (61 inches). Between December 2001 and June 2004, Mrs Palacio was transferred to administrative and clerical duties where she worked full time. In June 2004, Mrs Palacio transferred back to her original duties and shifts as a mail officer.
8. Mrs Palacio describe her mail officer duties in the following terms:
· Her work involved duties on a bar code sorting machine (BCS) for two hours per shift one week, and three hours per shift on alternate weeks. The work on the BCS machine included express post activities and sorting small letters.
· Four person teams operated the BCS machine, generally rotating every half an hour between four tasks – loader, stacker attender (unloader) one side, stacker attender (unloader) on the opposite side, and runner.
· The work as loader involved taking trays of letters from a unit loading device (ULD), and feeding letters into the BCS. The loading work was heavy, conducted at waist height, and involved in excess of 27,000 letters an hour (up to 34,000).
· The work as an unloader involved taking handfuls of letters from the machine’s stackers (172 stacks each side arranged at four levels), and transferring the letters to a tray, of the same number and at the same height, on an adjacent trolley (the rocket launcher). At a point in time, the appropriate tray would be filled and pushed to the back of the trolley awaiting extraction from behind, and placed by the unloader in the ULD. Such work involved using arms at, or above, shoulder level when dealing with the upper rows of stackers and trays in the rocket launcher, and extracting the trays from the rocket launcher.
· Work as a runner involved moving the filled ULDs, and assisting the others in their duties.
· Work in express mail involved clearing the items from bags, and throwing the sorted items into bags on the rack, tying up the bags when full, and lifting and putting the full bags into a ULD. A team of three or four undertakes this activity, which can last for up to two and a half hours from midnight to 2.30 am.
· Sorting mail involves sitting before a vertical sorting device (VSD) with a foot wide table between the device and the seated sorter. The sorter slots the mail into 54 apertures.
· There is a break in the five hour shift.
9. Mrs Palacio described the onset of neck and shoulder pain (right side) in late May and the early weeks of June 2006, when undertaking the mail officer duties as previously described. During this period, Mrs Palacio stated that she received some symptom relief through massage given by her husband and children. Whilst at work on 15 June 2006, Mrs Palacio noted an increased level of symptoms (mainly pain) when undertaking her usual duties. On 16 June 2006, Mrs Palacio called her employer to say that she was unable to attend work that evening because of soreness in the throat (neck), a lump on the bottom side of her throat, and a painful right shoulder. Mrs Palacio attended her new general practitioner (Dr Ludovice-Santos) on 17 June 2006, had an x-ray of both clavicles and an ultrasound of the right sternoclavicular joint on 18 and 21 June 2006 respectively. Mrs Palacio was placed on restricted duties by her doctor (no lifting greater than 10kgs). An assessment by the facility nominated doctor, on 4 July 2006, recommended restrictions on lifting, avoiding above shoulder work and repetitive use of the right upper limb, and not to work on the BCS machine. Such restrictions have continued. Mrs Palacio was referred to Dr Maniam, a consultant in orthopaedic surgery, on 31 July 2006. Mrs Palacio saw Dr Maniam on 9 August 2006, and had a MRI scan of her right shoulder on 17 August 2006.
10. Dr Maniam, in his report of 5 October 2006 (T29), detailed the results of particular diagnostic studies as follows:
Ultrasound Right Sterno Clavicular Joint
Subluxation of the sterno clavicular joint
MRI Right Shoulder
There is thickening and diffused increased signal within the mid and posterior fibres of the insertional supraspinatus consistent with extensive tendonosis.
There is tendonosis and an intrasubstance tear extending through the infraspinatus with fluid signal continuing along the infraspinatus musculo tendinous junction.
There is minor amount of tendonosis within the insertional subscapularis.
There is no evidence of tear of the long head of the biceps although a small amount of peri bicipital fluid is evident.
No apparent labral tear.
Mild acromioclavicular joint osteoarthritis with periarticular oedema.
Small subacromial ostheophyte.
Small amount of bursal subacromial subdeltoid bursal fluid.
consideration and findings
11. Mrs Palacio detailed her evidence in a way and manner that at times, particularly in relation to her work duties, required further exploration to fully understand the detail of her answers. Nevertheless, in the end it was evident that Mrs Palacio had not previously suffered from the symptoms she described as occurring in her right shoulder, prior to the onset of symptoms in mid May/early June 2006. Further, Mrs Palacio was adamant that she removed approximately 100 trays from the rear of the rocket launcher to the ULD in a two hour shift, with this number increasing to approximately 200 to 250 trays in a three hour shift. During such activity, Mrs Palacio stated that her right hand was used to pull the tray out, with the left hand placed underneath to support the weight of the full tray of mail; each full tray weighed eight to ten kilograms. Mrs Palacio noted that when she first commenced work with Australia Post in 2000, a small stool was available to assist people of small stature to do the unloading task. However, this stool was not available when she returned to such activities in June 2004. Mrs Palacio stated that from mid 2004 she started to feel some strain in her right shoulder towards and after the end of her shift, and that this was more evident when undertaking duties on the BCS machine.
12. I note that Mr Palacio, (Mrs Palacio’s husband), worked on the same shift and same small team with Mrs Palacio. His evidence covered and confirmed much the same areas as Mrs Palacio. In his oral evidence, Mr Palacio stated that the throughput for the BCS machine was between 29,000 and 34,000 articles per hour, with the unloaders removing 100 trays to the ULD in a two hour shift, and in excess of double that number in a three hour shift.
13. I also note both the written (Exhibit R2) and oral evidence of Mr Elkhatib, who was the night shift manager at the Alexandria Delivery Facility from 28 February 2006 to 17 November 2006. Mr Elkhatib detailed the duties undertaken by Mrs Palacio during her shift, and concluded in his written statement that Mrs Palacio would have removed some 30 to 40 filled mail trays from the rocket launcher to the ULD during a shift. In his oral evidence, Mr Elkhatib detailed that the average throughput for the BCS machine, on which Mrs Palacio was working at the time of her injury, was 29,000 articles per hour. Mr Elkhatib further detailed the BCS machine process, indicating the variability of activity, including machine downtime while awaiting mail delivery and the gradual, but variable, rate of filling the trays in the rocket launcher. He also stated that the rate of removal of the trays per shift was in the order of 40 per individual. Mr Elkhatib confirmed that a quarter of the trays in the rocket launcher, and in the BCS machine, involved duties requiring the use of the right arm above shoulder height, and that the removal of the trays from the BCS machine also involving lifting above shoulder height.
14. While I have been particular in detailing the activities involving work requiring use of the right limb above shoulder height, I observe that there is a difference in the evidence in relation to the number of trays unloaded to the ULD, between Mr and Mrs Palacio, on the one hand, and Mr Elkhatib, on the other; that is, 100 to 200 plus trays unloaded depending on the shift length (the Palacios), as opposed to the 40, nominated by Mr Elkhatib, with a quarter of the activities involving lifting above shoulder height with the right hand. I observed that Mr Elkhatib was a competent and articulate witness, who demonstrated both a composite understanding of the activities undertaken by the workers for whom he was responsible, the machines that were involved and the mail flow process through the various activities discussed. While not necessarily negating the nature of the work as defined by the Palacios, I consider that unless a full clear down of the machine occurred, the number of trays unloaded to the ULD was more in the order of 40 trays per shift per member, which would equate to an average 160 trays of mail per two hour shift for the four member team. In noting the workflow and reasons defined by Mr Elkhatib, I believe that the number quoted by Mr and Mrs Palacio for tray removal was an overstatement for the trays removed per worker, both during a two hour and a three hour shift.
15. While the above matter has been examined in some depth, the issue remains that Mrs Palacio, a person of small stature, was undertaking duties of a repetitive nature during each shift that she worked prior to the onset of symptoms in her right shoulder in late May/early June 2006. Such repetitive work involved Mrs Palacio using her right arm above the shoulder to take handfuls of letters from the stacker, and place the letters in a corresponding tray in the rocket launcher. Such work also involved Mrs Palacio lifting trays with her right hand above shoulder height when removing the filled trays to the ULD. I also note that Mrs Palacio suffered particular symptoms whilst tying and lifting mail bags when undertaking express post activities during her shift. In summary, I am satisfied that Mrs Palacio’s activities at work did involve the repetitive use of her right arm above shoulder height, both in clearing the stackers, and lifting the filled mail trays and placing them in the ULD. I also accept Mrs Palacio’s description of the symptom onset in her right shoulder prior to 15 June 2006, the symptom progress, and the absence of any significant symptoms in the right shoulder prior to the presenting episode in May/June 2006.
what is the nature of mrs palacio’s right shoudler condition?
16. Dr Maniam, (the treating orthopaedic surgeon), in a report dated 23 August 2006 (T19), noted the clinical history, including syptomology, in relation to Mrs Palacio’s right shoulder. Dr Maniam noted that a MRI scan of the right shoulder, undertaken after his date of consultation, revealed marked tendinosis of the supraspinatus tendon, infrasubstance tear of the infraspinatus, tendinosis of the subscapularis, fluid in the subacromial bursa with the acromioclavicular joint being mildly subluxated. Dr Maniam considered the main problem to be subacromio bursitis.
17. In a further medical report, dated 5 October 2006 (T29), Dr Maniam considered that Mrs Palacio’s appropriate diagnoses in relation to the right shoulder, after collating clinical findings with the radiological appearances, were:
1. Subluxation, right sternoclavicular joint
2.Traumatic arthritis, acromioclavicular joint with subacromial osteophyte formation
3. Extensive tendonosis of the right supraspinatus
4. Tendonosis and intrasubstance tear of the infraspinatus
5. Tendonosis involving the subscapularis
6. Subacromial subdeltoid bursitis
18. Dr Maniam believed that Mrs Palacio’s occupation was a substantial contributing factor, and believed that there were no pre-existent problems that were aggravated in the incident. Dr Maniam also believed some permanent symptoms, and permanent disabilities and functional limitation, will remain.
19. Two further reports by Dr Maniam, dated 1 November 2006 (Exhibit R7) and 4 December 2006 (Exhibit R8), detailed limited progress in the amelioration of Mrs Palacio’s right shoulder symptoms.
20. In a medico-legal report dated 27 February 2007 (Exhibit A3), Dr Evans, a specialist physician in bone and endocrine medicine, detailed a clinical history involving Mrs Palacio having to lift more than 100 filled trays with her right hand when working on the BCS machine during her five hour shift. Dr Evans did not describe other duties undertaken by Mrs Palacio during her five hour shift, and also inferred that Mrs Palacio had been undertaking the BCS work activities since November 2000. Dr Evans considered that Mrs Palacio suffered damage to the rotator cuff of her right shoulder, involving particularly the supraspinatus tendon (extensive tendonitis) and the infraspinatus tendon (tendonitis and an infrasubstance tear and mild damage to the sternoclavicular joint). Dr Evans believed Mrs Palacio’s right shoulder condition to be a result of the nature and conditions of her work in 2006.
21. In oral evidence, Dr Evans confirmed the opinion he expressed in his written report, while stating that he did not see the need to postulate pre-existing degeneration, as nominated by Dr Breit. In his opinion, the work between 2000 and 2006 was sufficient to cause the injury, even if three years during that period were spent on administrative/clerical tasks. Dr Evans considered, in his overall analysis, that the more work undertaken by Mrs Palacio above shoulder height, the more likely damage was to occur.
22. Dr Evans acknowledged that interpretation of a shoulder MRI scan was not within his expertise, and that he left such interpretation to the radiologists. Dr Evans did not believe anyone could give an opinion based on MRI appearances as to the age or duration of degeneration change in Mrs Palacio’s right shoulder. Dr Evans did not think the supraspinatus tendon was thickened (degenerate). Further, Dr Evans did not think the problems with the right sternoclavicular joint were important in this matter. On his evidence, the important issue was the rotator cuff damage.
23. In a medico-legal report dated 30 January 2007 (Exhibit R3), Dr Breit, a consultant orthopaedic surgeon, detailed Mrs Palacio’s clinical history in relation to her right shoulder. He had previously reported on her left shoulder condition on 30 November 2006. Dr Breit considered that Mrs Palacio had right rotator cuff tendinosis, with mild acromioclavicular arthritis consistent with someone of her age. Dr Breit considered that the MRI findings in the right shoulder were consistent with the history and clinical findings.
24. Dr Breit considered that there had been an aggravation of a pre-existing constitutional condition, as the nature of her work (30 - 40 trays moved, with only one in four trays involving work above chest height) would lead to rotator cuff aggravation, but not to having caused that type of pathology. Dr Breit considered that the problem (the aggravation) would be likely to continue indefinitely, and that Mrs Palacio should not be allowed to perform work above chest height at any time.
25. In a further report dated 22 February 2007 (Exhibit R4), Dr Breit considered that the subacromial spur, acromioclavicular arthritis and an indefinable portion of the rotator cuff tendinosis, predated the injury. Dr Breit considered the subacromial spur and acromioclavicular arthritis to be permanent conditions, the tendinosis also a permanent condition, and the tendonitis and bursitis, demonstrated on the MRI scan, as conditions which had been aggravated. Dr Breit considered that if the symptoms were to subside over a six to nine month period, the bursitis (result of irritation) should settle.
26. In oral evidence, Dr Breit confirmed his opinion that there was a pre-existing constitutional degenerative condition in the right shoulder, as evidenced by the extent of the pathology on the MRI, namely the subacromial spur and the extent of the tendinosis within the rotator cuff, both conditions taking many years to develop.
27. Dr Breit, in detailing his expertise in reading shoulder MRI scans, stated that he was primarily a shoulder surgeon, with most of his skill and expertise being in shoulder surgery. Dr Breit believed he had as much skill in reading MRI scans, if not more, than most who perform them (referring to radiologists).
28. Dr Breit also indicated that there is a significant increased risk of rotator cuff problems, with an increasing frequency of activity involving lifting duties above chest height. Dr Breit acknowledged that the cut off line between activities which would aggravate, and activities which would be causative of pathology, is unknown. Dr Breit considered that even if Mrs Palacio was lifting 50 trays above chest height during a shift, it was his opinion that such activities were likely to cause irritation, as opposed to causation of significant pathology.
29. In addressing Mrs Palacio’s right shoulder condition, it is evident that the specialist clinicians define the physical extent of the existing pathology in similar terms. I concur, and in so doing find that Mrs Palacio’s right shoulder condition involves:
· Rotator cuff tendinosis, involving the supraspinatus tendon (extensive tendonitis) and the infraspinatus tendon (tendonitis and an infrasubstance tear observed by the ultrasonographer) and subacromial subdeltoid bursitis
· Subluxation of the right sternoclavicular joint;
· Arthritis right acromioclavicular joint with a subacromial spur (osteophyte).
30. I further note that both Dr Evans and Dr Breit considered the subluxation of the right sternoclavicular joint as somewhat disassociated from the shoulder pathology, and of minimal significance.
was there a pre-existing constitutuonal degenerative condition in the right shoulder?
31. In this regard, I note that Dr Maniam and Dr Evans say that there was not a pre-existing constitutional degenerative condition in the right shoulder, whilst Dr Breit stated that there was. Their opinions, and the basis for their opinions (or lack thereof) have been detailed earlier in this decision. I also note that only Dr Evans and Dr Breit presented oral evidence. Having considered such opinions, I conclude by accepting Dr Breit’s opinion as regards to the existence of a pre-existing constitutional degenerative condition in the right shoulder. I do so for the following reasons:
(a)There is evidence of pre-existing degenerative (constitutional) conditions, namely the arthritis in the right acromioclavicular joint and the subacromial spur. Clearly, these were in existence prior to the injury and events of June 2006, with there being no dispute defined between the clinicians that such conditions take many years to evolve. It is noted that Dr Breit considered the arthritis to be mild and not traumatic (no history of trauma) in origin, but a common condition consistent with Mrs Palacio’s age.
(b)I note also that Dr Breit considers that the extent of tendinosis in the right shoulder would take many years to develop.
(c)I note that Dr Evans, Dr Maniam and Dr Breit considered that the pathology which arose from the injury was a consequence of a work related activity in which the right limb was involved in lifting activities above chest height. Both Dr Evans and Dr Breit agreed that the frequency of the nominated activity was of significance when determining causation, as opposed to aggravation of a pre-existing condition.
(d)In accepting the opinion generally of Dr Breit as regards to the existence of a pre-existing condition in the right shoulder, I do so for the following reasons:
· Dr Breit is an orthopaedic surgeon with particular expertise and skill, practising as a shoulder surgeon for over 15 years, and a professed skilled reader of MRI scans. His opinion was subject to examination.
· Dr Evans is a physician who has been undertaking medico-legal examinations relating to work and personal injuries over many years. His experience in shoulder injury arises from such experiences. He does not profess a skill to read shoulder MRI scans as they are too complex. His opinion was subject to examination.
· Dr Maniam is an orthopaedic surgeon. His area of specialist expertise was not defined, nor was he subject to examination.
· The opinion expressed by Dr Breit was one given in the understanding that the frequency of the lifting activity was 40 a shift, of which 10 were above chest height. This was at a level consistent with earlier findings in this matter, and inconsistent with the frequency considered in the report by Dr Evans.
are the reasons nominated in the decision under review appropriate
32. By virtue of earlier findings in this matter, it is evident that Mrs Palacio had a pre-existing condition, namely a degenerative (constitutional) condition of her right shoulder involving the rotator cuff, a subacromial spur and arthritis of the right acromioclavicular joint. As a consequence of the work activities prior to the onset of significant symptoms in June 2006, Mrs Palacio suffered an aggravation of the pre-existing rotator cuff tendonitis and subacromial subdeltoid bursitis. Dr Breit considered the aggravation, in relation to the rotator cuff tendonitis, to be a permanent condition, while the issue of the bursitis may or may not be permanent.
33. In stating as I have, I am satisfied that the reconsideration decision of 12 May 2007 fairly reflects the nature and extent of the injury to Mrs Palacio’s right shoulder, consequent to the circumstances nominated in her claim for compensation on 4 July 2006.
determination
34. I affirm the decision under review. In such circumstances, no decision for costs is relevant.
I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.
Signed: ...............[sgd].................................................................
AssociateDate/s of Hearing 8 and 9 August 2007
Date of Decision 15 October 2007
Counsel for the Applicant Mr F Curran
Solicitor for the Applicant Mr J Matthews
Counsel for the Respondent Miss R Henderson
Solicitor for the Respondent Mr G Jones
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