Patdu and Australian Postal Corporation (Compensation)
[2016] AATA 1031
•15 December 2016
Patdu and Australian Postal Corporation (Compensation) [2016] AATA 1031 (15 December 2016)
Division
GENERAL DIVISION
File Numbers
2014/4133, 2015/3513, 2015/4644
Re
Wainshita Patdu
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISIONS
Tribunal Regina Perton, Member
Date 15 December 2016 Place Melbourne In relation to application no. 2015/3513, the Tribunal:
a. sets aside the decision under review and substitutes a decision that Ms Patdu suffered an injury to her right thumb on 23 May 2013 arising out of, or in the course of, her employment;
b. remits the application to the respondent for calculation of her entitlements pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 on and from 23 May 2013 to 6 January 2014 in respect of the injury.
c. orders the respondent to pay Ms Patdu’s costs and disbursements of that application pursuant to s 67 of the Act.
In relation to application no. 2014/4133 and application no. 2015/4644, the Tribunal affirms the decisions under review.
[sgd]............................................................
Regina Perton, Member
WORKERS COMPENSATION – injury to right thumb and carpal tunnel syndrome – whether conditions work-related – disappearing ganglion - right thumb injury determined to be work-related – insufficient evidence to link carpal tunnel syndrome to work
Legislation
Safety, Rehabilitation and Compensation Act 1988 ss 5A, 5B, 14, 16, 19, 67
Cases
Re Cichello and Comcare [2010] AATA 509
REASONS FOR DECISION
Regina Perton, Member
15 December 2016
Wainshita Patdu, who is in her late forties, commenced work as a mail officer with Australian Postal Corporation (Australia Post) in 1999. For the past decade or more, she has been working night shift sorting mail, starting at 7.30pm. She has suffered from a number of hand, wrist and arm injuries. As far back as 2006, she has been on lighter than full duties due to those injuries.
On 30 May 2013 Ms Patdu lodged a compensation claim in relation to tendon strain of right thumb. Ms Patdu stated that the injury occurred on 23 May 2013. She sought medical treatment on 29 May 2013. On 4 July 2013 Australia Post refused the claim. A reconsideration decision on 2 August 2013 followed. Ms Patdu did not lodge an application with the Tribunal in relation to that injury until 23 July 2015, after she has lodged another application concerning a later workers compensation claim which had also been rejected. The respondent did not oppose an extension of time to lodge the application and it forms one of three under consideration by the Tribunal (2015/3513).
On 13 February 2014 Ms Patdu lodged a compensation claim in relation to soft tissue injury right thumb and ganglion 1st extensor tendon and left wrist. On 18 March 2014 Australia Post denied liability for the injury. A reconsideration decision on 17 June 2014 affirmed the refusal to accept liability. On 8 August 2014 Ms Patdu lodged an application with the Tribunal concerning that injury (2014/4133).
On 13 July 2015 Ms Patdu lodged a claim for compensation in relation to bilateral carpal tunnel syndrome. Australia Post denied liability on 31 July 2015. A reconsideration decision dated 12 August 2015 affirmed the refusal to accept liability. An application concerning this condition was lodged with the Tribunal on 3 September 2015 (2015/4644).
The Tribunal dealt with all three matters together.
RELEVANT LEGISLATION
Section 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (the Act), as it was at the relevant date, provides:
Compensation for injuries
(1)Subject to this Part, Comcare 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.
...
Section 5A of the Act states:
Definition of injury
(1)In this Act:
injury means:
(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;
…
Section 5B of the Act states:
Definition of disease
(1)In this Act:
disease means:
(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.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, 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;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material
Section 16 of the Act provides:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare 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 Comcare determines is appropriate to that medical treatment.
…
IS MS PATDU ENTITLED TO COMPENSATION UNDER THE ACT?
Ms Patdu was employed as a full-time mail officer with Australia Post from 1999. She has worked at the Dandenong Mail Centre for over a decade.
On 30 May 2013 Ms Patdu lodged an incident report in relation to a tendon strain to her right thumb. She stated that the incident occurred on 23 May 2013. Ms Patdu stated that her thumb accidentally got caught at the bottom of a stacker causing her thumb to extend backwards. Ms Patdu’s incident report was completed by a first aid officer as she was unable to write because of her injury. She noted that she had not lodged a report immediately on the night the injury occurred as she thought her thumb would be okay but the same area had flared up that evening.
A root cause analysis completed by Ms Tania Phillips, indicated that Ms Patdu had injured a ligament in her right forearm some two to three years earlier. The report indicated that Ms Patdu had deviated from the usual practice in the way she undertook some tasks because of her short stature and previous injury.
On 2 June 2013, Ms Patdu’s general practitioner, Dr Lakshika Bogoda, had sent her patient for an x-ray and an ultrasound of her right hand and wrist. The x-ray showed no fractures or dislocations. In relation to the ultrasound of the right wrist, the radiologist’s report stated:
Clinical Notes
Swelling after hyper extension injury.
Report:
Adjacent to flexor carpi radialis there is a cystic lesion measuring 12 x 7 x 8 mm displacing a branch of the radial artery. This contains some internal debris but no vascularity. Other tendons and tendon sheaths have a normal appearance. No joint effusion or ligamentous disruption is seen.
CONCLUSION
A ganglion adjacent to flexor carpi radialis displacing a branch of the radial artery.
A file note by the Injury Management Office (IMO) at the mail centre dated 13 June 2013 stated that:
…
Ms Patdu attended First Aid on 28/5/13 at 11.00pm for treatment. An ice-pack was applied.
IMO spoke with Ms Patdu on 29/5/13 and was advised that she had already seen her GP and was given a m/c that advised she was unfit for duty is on 30/5/13 – 31/5/13. Ms Patdu advised that she was on RO on 29/5/13.
IMO organised a WRMP appointment with Dr Andre (Mooroolbark Superclinic) on 30/5/13 at 8.30am.
A m/c received from Dr Andre dated 30/5/13 gave a diagnosis of “Suspected soft tissue injury (tendon strain) of right thumb.” Dr Andre gave restrictions of “Unable to grip and do repetitive movements involving right hand and wrist for at least the next 1 week”. Restrictions were from the period 30/5/13 – 6/6/13. An x-ray was also recommended.
IMO also received a m/c from Dr Bogoda dated 29/5/13 that certified Ms Patdu “unable to work from 30/5/13 – 31/5/13 inclusive due to a condition.”
Ms Patdu returned to work on 30/5/13 but advised that she would like to follow Dr Bogoda’s recommendation and take time off for her injury. Ms Patdu remained at work to complete the incident report then IMO supplied her with a taxi voucher to be escorted home once the incident report was completed.
Ms Patdu returned to work on 3/6/13 and IMO composed a restricted duties program based on the recommendations by Dr Andre on 30/5/13 until 6/6/13.
A m/c received from Dr Bogoda dated 7/6/13 which advised that Ms Patdu “is able to do only mail sorting with left hand, due to swelling at the right wrist with ganglion. She needs to rest the right hand until symptom-free.“
IMO extended the current restricted duties program based on the m/c from Dr Bogoda until 13/6/13, but advised Ms Patdu that a detailed m/c needs to be provided and also a review date needs to be advised from her GP.
…
Dr Bogoda issued a Certificate of Capacity on 24 June 2013 stating that Ms Patdu was fit for modified duties from 2 June 2013 to 30 June 2013 due to tendonitis and ganglion formation R wrist extensor tendon. Dr Bogoda issued a further Certificate of Capacity on 30 June 2013 due to extensor tendon injury / ganglion and soft tissue injury wrist with modified duties from 1 July 2013 to 15 July 2013 as per rehabilitation program. Ms Patdu’s treatment consisted of rest / wrist guard / nurofen.
On 4 July 2013, the claims manager at Australia Post made a decision that there is insufficient evidence to support the contention that the right thumb condition arose out of, or in the course of, your employment with Australia Post. Part of his reasoning was that Ms Patdu did not complete the incident report until five days after the injury was said to have occurred.
Ms Patdu sought reconsideration explaining that she had not reported the injury earlier as she had hoped that her thumb would be okay. Ms Patdu enclosed statements from two of her fellow employees who were working with her on 23 May 2013. Both of them stated that Ms Patdu had told them about hurting her right thumb on one of the stackers that night.
On 12 June 2013, Dr Bogoda issued a Certificate of Physical Capacity in which she recommended some work activities be restricted until Ms Patdu was pain free in her right wrist. Ms Patdu was instructed to work only with her left arm and hand.
On 12 July 2013 Dr Bogoda issued a medical certificate reiterating that Ms Patdu should only work with her left arm until pain-free on her right wrist. Dr Bogoda’s prognosis was that Ms Patdu should be better in few weeks.
On 18 July 2013 Australia Post’s reconsideration delegate affirmed the claims officer’s decision. Amongst her comments were:
…
Despite your report of ‘over-extending’ your right thumb whilst working on the BCS machine on 23 May 2013, you did not advise your manager/supervisor of the incident, or attend medical treatment at the time. I consider that your failure to advise your manager, or attend medical treatment denied Australia Post the opportunity to immediately investigate the incident to determine if an injury had been sustained, and I believe such investigation is now precluded because you continued to perform normal duties in the period immediately thereafter.
By your own admission you indicated that once the initial pain and numbness passed, your thumb appeared okay and that in the days between 23 May 2013 and 27 May 2013 you do not recall having any concerns with your thumb at all. I consider that this statement would suggest you had not suffered an injury to your thumb as a result of the reported incident on 23 May 2013.
You did not attend for medical treatment until 30 May 2013, and whilst the doctor has provided a diagnosis of “suspected soft tissue injury (tendon strain) of (R) thumb” he did not examine you contemporaneously and I’m satisfied that he has merely reiterated your report of injury and has not provided a medical opinion of the contribution of your employment to your “injury”.
I acknowledge that you experienced symptoms in your right thumb when performing duties (sorting mail on MMF) on 28 May 2013, for which you attended first aid, and subsequently sought medical treatment. However, no specific incident was reported as the cause of symptoms. That you experienced symptoms whilst performing certain work duties is in itself insufficient to amount to sustaining a work-related injury as set out in the Safety, Rehabilitation and Compensation Act 1988.
Therefore, in the absence of any contemporaneous medical opinion, i.e. after the earlier incident (23 May 2013), and your comment that you experienced no problems with your thumb in the period from 23 – 27 May 2013, I consider that it is difficult to determine, on the balance of probabilities, whether you did suffer a right thumb injury arising out of, or in the course of your employment, as defined in section 5A of the Act on 23 May 2013.
Dr Bogoda issued further medical certificates between July 2013 and October 2013 allowing her patient to gradually increase the range of duties using her right hand as well as her left.
As indicated earlier, Ms Patdu did not lodge an application for review with this Tribunal until after she had lodged claims relating to later injuries.
On 6 January 2014 Ms Patdu lodged an incident report stating she felt pain in both her left and right wrists and numbness in her fingers. She stated her right hand was worse than her left hand. The form was filled out by a health and safety representative because of her sore hands. Ms Patdu expressed the view that she had overused her left hand because of her previous right hand injury.
Ms Patdu lodged a claim for compensation on 13 February 2014. She stated that the injury was first noticed on 6 January 2014 and she had medical treatment for that injury on 9 January 2014.
On 9 January 2014 Dr Bogoda issued a medical certificate stating that Ms Patdu should be on work restrictions for the next three months, suggesting Ms Patdu has to take it easy with repetitive work. Dr Steven Ng of the NeuroDiagnostic Unit of Box Hill Hospital issued a report on 11 February 2014 with the conclusion:
There is electrophysiological evidence of mild – moderate degree right, and moderate left, focal median neuropathy at the wrist consistent with CTS.
Screening test for right ulnar nerve was normal.
At Australia Post’s request Dr Bogoda issued a Certificate of Capacity on 3 March 2014 covering the period from 6 January 2014 to 3 April 2014. Dr Bogoda stated that her patient should be on light duties, non repetitive work from left hand with treatment being rest, modified duties, anti-inflammatory.
An IMO file note dated 17 March 2014 indicated that Ms Patdu had been on a restricted duties program for some months and was to continue on such until at least 4 April 2014.
On 18 March 2014 the claims manager determined that there was insufficient evidence to support the contention that the right hand or left wrist condition arose out of, or in the course of, her employment. On 11 April 2014 Australia Post allowed an extension of time until 28 May 2014 to provide supporting evidence in relation to a reconsideration application.
On 13 May 2014 Dr Bogoda issued a further medical certificate in relation to work restrictions stating that for the next month, Ms Patdu could use both hands but minimise repetitive work. There were also lifting restrictions.
On 28 May 2014 solicitors now acting for Ms Patdu lodged an application for reconsideration. The reconsideration delegate affirmed the original decision on 17 June 2014. An application was made to the Tribunal following that refusal on 8 August 2014.
Throughout the rest of 2014 and until mid-2015, Dr Bogoda issued further certificates recommending restricted duties. There were variations in the description of the medical condition in those certificates. For example, in a certificate dated 16 September 2014, Dr Bogoda described the nature of the medical condition as soft tissue injury R wrist (repetitive strain injury). The certificate dated 4 December 2014 described the condition as RSI, De Quervains Synovitis R wrist, ganglion on the R wrist. A certificate dated 14 June 2015 described the condition as left carpal tunnel syndrome.
On 13 July 2015 Ms Patdu lodged a claim for bilateral carpal tunnel syndrome that she stated she had first noticed in January 2014. On 31 July 2015 a claims manager of Australia Post denied liability for the condition. Solicitors acting for Ms Patdu lodged a claim for reconsideration on 5 August 2015. On 12 August 2015 the reconsideration delegate affirmed the denial of compensation for the condition. An application for review was lodged with the Tribunal on 3 September 2015.
The Tribunal was presented with extracts from the clinical notes of Dr Bogoda. A progress note dated 29 February 2012 indicates that Ms Patdu weighed 58 kg on that date. A progress note dated 28 October 2012 concerns a past injury to the left shoulder. A clinical note dated 6 January 2014 states:
3/52 numb both hands all fingers, thumb well. On calamari oil…Stopped it 1/52 ago 3 times y’day wake up 12 and evening nearly dropped coffee.
…
Reason for contact:
Numb hands
Associate Professor Felix C Behan provided a report dated 12 January 2015 to Ms Patdu’s solicitors. He is a plastic, reconstructive and hand surgeon within both the public and private systems. Extracts of his report follow:
…
3.2 Present Condition & Complaints
The patient presented today with the following list of complaints in relation to her injuries: –
Clinical Aspects:
Paraesthesia in the distribution of the median nerve bilaterally involving the (R) and (L) thumb, index and middle fingers of each hand respectively.
…
3.7 Diagnosis
Bilateral carpal tunnel syndrome (CTS).
The issue of a ganglionic disturbance of the (R) thumb was not evident clinically and such lumps may be fluctuant however.
The development of CTS on the (R) side - the hyperextension injury of the thumb of May 2013 – is an ongoing complaint and the overuse of the (L) in harmony with the (R) arising out of her work commitments means the carpal tunnel has a bi-phasic aetiology.
3.8 Causation & Aetiology
Aetiology of Carpal Tunnel Syndrome Summary
Ref: The practice of Hand Surgery, Lamb, Hooper & Kuczynski (1989)
The aetiology of Carpal Tunnel Syndrome has a range of causes embracing systemic issues and local factors.
The general overall state which might create the diathesis as a background to aetiology (when local precipitating factors might bring the condition to clinical awareness) then both these aspects must be reviewed in any patient whose complaint may embrace both aspects.
Systemically there may be endocrine related factors eg: diabetes or thyroid disease. Obesity may contribute and inflammatory conditions such as Flexor Tenosynovitis may be implicated. Vascular changes with arterio-venous abnormalities and local tumours from ganglions to lipomas to synovial proliferations (to name a few) all may be implicated.
Repeat trauma causing soft tissue damage may also be implicated necessitating any surgical intervention. Any resultant oedema from heavy manual activity aggravates this venous stasis which may precipitate carpal compression.
In this patient’s case, Ms Patdu, the repetitive nature of the activities involved in mail sorting are noted. She also has a BMI of possibly less than 30 but the factors of weight increase may be co-contributing to the development of the CTS.
Her work-related issues are implicated. We discount the Stapleton publications denying relationship between work and CTS.
Prognosis:
Surgical release should be expedited by a letter from her local practitioner to a hand specialist.
The longer one waits for surgical release the worse the outcome because of the ‘indelible’ imprint on the pain reception centre of the brain which is harder to eliminate the longer the duration of symptoms which might become permanent and develop a Chronic Regional Pain Syndrome in spite of release. Therefore in this case the more expeditiously done the better the outcome in view of the effect of its long-standing presentation.
So in summary with an underlying diathesis, including a weight increase factor, this combination of work and personal intrinsic factors combine together to make this a work related disturbance.
…
In his oral evidence, Associate Professor Behan indicated that he had only examined Ms Patdu once, in January 2015. He had not seen or communicated with her since then.
Under cross examination by Mr Seit, counsel for Australia Post, Associate Professor Behan was asked about the numbness experienced by Ms Patdu some three weeks before 6 January 2014. Associate Professor Behan said that initial symptoms of carpal tunnel were often tingling, with symptoms gradually getting worse, particularly at night.
Associate Professor Behan maintained his opposition to the views expressed by Mr Stapleton. He provided a critique of a report published by Mr Stapleton that was cited and discussed in an earlier decision by another tribunal in Cichello & Comcare [2010] AATA 509 where a relationship was found between carpal tunnel syndrome and computer usage in employment when Ms Cichello, a psychologist, found herself suddenly undertaking computer and phone work when she ran an aged care phone line. She also suffered from other conditions which attracted compensation.
Associate Professor Behan said that surgery for carpal tunnel relieves the pins/needles almost immediately but the muscles take longer to recover, perhaps 18 months to two years.
Under cross-examination, Associate Professor Behan conceded that he did not have any briefing material on the nature of equipment used by her work. He said that the repetitive nature of the work was one of the factors he considered. There was a discussion about ganglions of which there was no sign when he examined Ms Patdu. Associate Professor Behan said that they fluctuate. In terms of a link to obesity, Associate Professor Behan agreed that there was statistically such a link.
Mr Murray Stapleton, plastic and hand surgeon, provided a report dated 9 February 2015, to Australia Post’s solicitors. After examining Ms Patdu that day, Mr Stapleton reported on the history of her conditions and then continued:
THE CURRENT STATUS
On both hands she gets occasional pins and needles involving the thumb, index and middle fingers. She said that her sleep is disturbed by symptoms on both sides, but more on the left than the right-hand-side. Her condition is not improving with time.
…
MEDICAL HISTORY
This lady denies any knowledge of a family history of carpal tunnel syndrome. She is not diabetic. Menopause began for her quite young, at the age of 43, and she still suffers from hot flushes associated with the hormonal change of menopause. This is important because the majority of sufferers of carpal tunnel syndrome are women of menopausal age. Even though she remains on lighter duties, her problem is slowly getting worse with time. She is medicated with Mobic for her discomfort…
…
EXAMINATION
This lady is 4’9” tall and 55 kg in weight…
Examining her right wrists, there is no suggestion of a swelling. The Finkelstein’s test for De Quervain’s disease in her is negative and the Phalen’s test for carpal tunnel syndrome is positive on both sides, more so on the left than the right.
Her hands were clean and she has lost no sensation.
I respond to the questions you submitted to me in your instruction dated 28 November 2014 as follows:
·This lady is not showing any sign of injury. Her problem now is that of carpal tunnel syndrome. I have no doubt that perhaps even on both occasions, when an unusual movement was required of her hands, that she suffered, perhaps for the first time, signs of nerve compression by way of digital numbness and pins and needles in the digits that are innervated by the median nerve.
·On the right side, if there was a ganglion associated with her condition, there is no evidence that that remains. What now remains is evidence of carpal tunnel syndrome with requires nerve decompression, particularly on the left side.
·There is no evidence that she is suffering from a work-related injury; i.e. her occupation is not the significant contributing factor, not by way of cause or by way of aggravation.
Mr Stapleton provided a further report for Australia Post’s solicitors at their request on 2 March 2015.
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You have my report dated 9 February 2015. I note there are two reported dates of injury, one is 23 May 2013 and the other is 6 January 2014. It could well be that this lady, who has a genetic predisposition for carpal tunnel syndrome, was aware of the pins and needles when, perhaps, unusual movements were performed by her hands on those two occasions, but the suffering of symptoms thus caused by either repetitive activities or an unusual wrist joint movement does not go to the question of causation of carpal tunnel syndrome, nor does it go to the question of aggravation of the pathological process. To put it another way, this lady, in my opinion, would have carpal tunnel syndrome whether she worked for Australia Post or, indeed, if she did not work at all. Carpal tunnel syndrome is a condition of gradual progression, it is genetically predetermined and it most often affects women of menopausal age, which is the case here.
I respond to your Schedule A questions as follows:
1. The history is dealt with in the report above.
2. The medical investigations – I have noted the nerve conduction study which was performed on this lady, showing moderate carpal compression on the right and moderate compression on the left side. The ganglion which was noted following the ultrasound on 4 June 2013 appears now to have settled.
3.1 The diagnosis is bilateral carpal tunnel syndrome, in this instance the left hand is more of a problem than the right.
3.2 As I have noted above, the events at the workplace on 23 May 2013 and 6 January 2014 did not cause the carpal tunnel syndrome, nor did it make the problem worse.
4. Aetiology:
4.1 Her activities at the workplace have no bearing on the presentation of carpal tunnel syndrome, from which condition I believe she would suffer whether she worked or whether she did not.
4.2 On the balance of probabilities, employment with Australia Post is not the significant contributing factor.
4.3 As noted above, in my opinion Australia Post did not provide a significant contributing factor to her condition, not by way of cause, nor by way of aggravation.
4.4 There is no distinction between the so-called injuries on 23 May 2013 and 6 January 2014.
4.5 I note that there are previous AAT cases and the Tribunal suggesting that carpal tunnel syndrome can be caused by force or repetition. Because the AAT arrived at that decision does not alter the fact that there is no longitudinal study which suggests that carpal tunnel syndrome is caused from an injury, apart from those who suffer from a wrist joint fracture. Carpal tunnel syndrome is a genetically predetermined problem suffered by women most of menopausal age. It is true that hypothyroidism, for reasons unknown, is related to the problem. Those who suffer from rheumatoid do suffer from carpal tunnel syndrome because of the swelling around the wrist joint which applies pressure to the median nerve in the vicinity.
5. Capacity:
5.1 This lady should not be required to perform activities at work, or at home, which gives her genuine discomfort.
5.2 She would appear to be not fit for pre-injury duties.
6. Treatment and Rehabilitation: The way to solve this problem is to submit her to bilateral endoscopic decompression. That should be done by a competent Hand Surgeon. That way both hands could be done at the one time. She would be off work for two weeks and would require lighter duties for two weeks thereafter and I see no good reason why she should not, thereafter, recover completely, as that is the usually observed situation.
7. Prognosis: As noted above, the prognosis for this lady, with surgery, is good. Without surgery her problem will get worse with time; again, whether she works or whether she does not.
In oral evidence, Mr Stapleton said that no one has worked out why women are more likely to get carpal tunnel syndrome. He said that the main aggravating factors included family history, a person’s age, a diabetes link and a rapid increase in body weight. Asked if the nature of her work as a mail sorter for some 15 years would have an impact on development of carpal tunnel syndrome, Mr Stapleton said that any occupation where there is flexing of the wrist could make a contribution to the experience of symptoms. Mr Stapleton said the experience of symptoms when undertaking particular tasks did not mean that the work had caused the condition. He noted that Ms Patdu was right-handed, yet her left hand was worse than the right. Mr Stapleton said that if sorting letters had caused the carpal tunnel syndrome, one would expect huge numbers of those undertaking such work to have the condition.
It was put to Mr Stapleton that Associate Professor Behan had suggested a causal link between the repetitive work and Ms Patdu’s condition. Mr Stapleton said that if such were the case, you would expect concert pianists, shearers and others undertaking repetitive movements to have the condition as a result of their employment, but that this was not so. He said that many women who do not work suffer the condition. Mr Stapleton said that there were no longitudinal studies to see what would happen.
Under cross examination, Mr Stapleton said that all the medical professionals, including himself, agreed that Ms Patdu had an incapacity for work as a result of bilateral carpal tunnel syndrome. He also agreed that she had had appropriate surgery and follow up treatment. Mr Stapleton said that Ms Patdu had told him she did not know if there was a family history of similar conditions. He reiterated that there had been no evidence that repetitive work caused the development of Ms Patdu’s carpal tunnel syndrome.
There was discussion about ganglions. Mr Stapleton agreed with Associate Professor Behan that ganglions come and go. Mr Stapleton also said that every patient with carpal tunnel syndrome wakes up with symptoms.
Mr John Beer, plastic and reconstructive surgeon, provided a statement dated 11 August 2015:
Miss Patdu first consulted me on the 21st June 2015 at Ringwood Private Hospital for a symptomatic left carpal tunnel syndrome. This had been troubling her for some time with typical symptoms of weakness, tingling and numbness in the hand which was waking her up from sleep. She described some similar symptoms of a less severe nature on the right-hand side and felt that this had been exacerbated by her long period of work through Australia Post. Ms Patdu is otherwise a right-handed dominant lady suffering from hypercholesterolemia. She has no known drug allergies and is a non-smoker.
On examination Ms Patdu had a positive Tinel’s sign but an otherwise normal left hand. She had an obvious decrease in her grip strength and sensitivity in the medial nerve distribution of that hand.
Nerve conduction studies dated 11 February 2014 confirmed mild to moderate right and a moderate left medium neuropathy consistent with carpal tunnel syndrome.
As to the cause of Miss Patdu’s carpal tunnel syndrome, I think this is not obvious. The repetitive activity of her work through Australia Post could clinically explain her carpal tunnel syndrome however carpal tunnel syndrome is relatively common with advancing age and there may very well be other causes.
At surgery on the 22nd July 2015 Miss Patdu underwent a left carpal tunnel release which was essentially an uncomplicated procedure. At surgery the median nerve was noted to be of an hourglass configuration and quite injected. This is consistent with reasonably long-standing pressure on the nerve.
In the post operative period Miss Patdu has been well with good improvement of her symptoms. She is currently seeing a hand therapist for physiotherapy following the surgery and we are planning to proceed with a right carpal tunnel release in the coming weeks.
The Tribunal was provided with Certificates of Capacity issued by Mr Beer following the carpal tunnel surgeries.
Mr Travis Hillard, physiotherapist, sent a note to Mr Beer on 18 December 2015 in which he stated:
Wainshita has been presenting for physiotherapy post bilateral carpal tunnel surgery since 13th August 2015 and has presented for treatment on 8 occasions. Treatment has involved soft tissue work, ultrasound, T.E.N.S, mobilisation, and home based exercises.
Strength testing as of today reveals she is able to lift and perform bicep curls of 2 sets of 10 up to 3kg with the left hand and 2kg with the right hand.
Mr Damian McShane, Production Support Manager with Australia Post, provided a statement dated 30 November 2015. He described the nature of the work undertaken on the night shift and the rotation of staff through different tasks during a shift.
In a statement dated 13 November 2015, Ms Patdu expanded on the details given in her claims.
1.I am seeking review of several decisions by Australia Post to deny liability to pay compensation for injuries to the right thumb, due to a specific injury in May 2013 and to both my hands and wrists due to the nature of my work as a Mail Officer over time to 2014.
2.I continued to work on alternative duties under the Australia Post Non-Work Related Rehabilitation Policy since the start of those injuries, although I had earlier had my duties modified since around 2006 when I injured my left and right elbows.
Ms Patdu goes on to describe how she has utilised annual leave and long service leave at half-rate to support herself whilst unable to work. She described the carpal tunnel operations on 22 July 2015 and 3 September 2015 and their impact. Ms Patdu described her work history, the sorting machines and frames that she worked on and the circumstances of previous injuries. In relation to her thumb injury in May 2013, she stated:
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24. I suffered an injury one night in or about 23 May 2013 while clearing the stacker of the BCS machine. I went to grab mail from the stacker when my right thumb hit the bottom of the stacker opening and pushed the right thumb back. It was very painful. I was hurrying at the time because we were clearing down the machines. I kept going but I did mention the injury to two of my co-workers. I hoped the pain would go away.
25. Over the next few days I continued to work and the right thumb was still sore but I could work with that. A few days after the injury the right thumb started getting more painful and I went to the Production Leader and reported the injury.
26. I have seen my request for reconsideration of the determination dated 4 July 2013 and agree with what I said there.
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27. Where the letter says that “I don’t recall having any concerns about my thumb at all” between 23 and 28 May 2013 I did not intend it to be interpreted as meaning that I did not have any symptoms. I did continue to have a sore thumb but I was able to continue work and I thought the soreness would gradually fade away. It did not, so I reported the injury.
28. The supervisor at work did an investigation of the injury from memory.
29. Following that injury I continued to work on lighter duties in much the same pattern as before.
Ms Patdu describes her physical situation in terms of weight gain, having stated earlier that she was 4’ 10” tall and weighed 51 kilograms, presumably as at the date of her statement made in November 2015. Her general practitioner’s clinical notes as at February 2012 indicated that she weighed 58 kilograms. In her statement, Ms Patdu went on to state:
31. In the latter part of 2013 I was putting on more weight. I had been working night shift continually for some time and I would wake up in the late morning with hours to myself before starting work again. I don’t know how much weight I was putting on. I decided to try swimming for exercise. I generally went to the Genesis Fitness Centre where I would go swimming and use the sauna and spa facilities. I started in about late 2013. I remember …Dr Bogoda agreed that swimming would be good for me.
32. In early 2014 I was getting pain in the right thumb and I had a ganglion in the right thumb as well as numbness in my hands and fingers. Early in January I went to get some treatment at the First Aid station, I think I got a cold pack.
33. I continued to experience these symptoms as I worked on. I had two weeks leave at the end of January 2014.
34. I was sent to have a nerve conduction test at the Maroondah Hospital in mid-February 2014. I was told later that I had carpal tunnel syndrome.
…
Ms Patdu provided copies of pharmacist receipts and other medical costs. In oral evidence, Ms Patdu said that she continues to obtain treatment from the physiotherapist and has been reviewed by Mr Beer since the operations.
Ms Patdu said that she does not use all the machinery described by Mr McShane as she had been on light duties for some years. She said that whilst in theory the people on the shifts rotate through the various duties, it does not always happen the way Mr McShane had described it.
Under cross examination, Ms Patdu indicated that her weight had fluctuated over the previous years. She could not recall what it was in the latter part of 2013.
Asked about her previous employment, Ms Patdu said that she worked for six or seven years with Oroton undertaking assembling, sewing and packing. The Oroton brand was an upmarket one for purses, wallets and the like. Her employment ended when the Australian manufacturing operation closed down. Ms Patdu then worked for Rivers in Ballarat as a machinist and packer for two or three years. Her next employment was for a local council for about two years undertaking household assistance work visiting older people, cleaning, shopping etc. She initially commenced with Australia Post part-time, working for the council for three hours and then Australia Post for three hours.
Ms Patdu was asked about earlier injuries and described the circumstances of her forearm injury in 2006 and a shoulder injury in 2009. Those injuries resulted in her being on restricted duties. Asked why she had not reported her right thumb injury earlier, she said that whilst it was painful, she hoped it might resolve itself but it did not.
Ms Patdu could not recall exactly when she first experienced pain in her hands and wrists but said that she had advised First Aid at work of her pain on 6 January 2014. When she was referred to her doctor’s clinical notes that indicated that she felt numbness in both hands and all fingers some three weeks before the visit on 6 January 2014, Ms Patdu said that the symptoms were getting worse by 6 January 2014.
Mr Seit asked Ms Patdu about her travels since mid-2013. She said that she had travelled overseas once to the Philippines and to Dubai. Friends had helped with her luggage. Ms Patdu said that she drives a small automatic car with power steering. She said her symptoms are worse during and after driving. She described the nature of the restrictions on her work and the machines she used.
Under re-examination, Ms Patdu provided information about how many letters she usually sorted in a shift, which depended on the day of the week and the season.
Mr Carey submitted that Ms Patdu’s tendon strain of her right thumb arose out of her employment. The Tribunal agrees. Ms Patdu gave plausible evidence about why she did not report the injury immediately hoping that the pain she felt would disappear but it did not do so. There are medical records indicating that she was diagnosed and treated for the thumb condition and she had a few days off. There was no evidence to indicate the injury was not sustained at work. The Tribunal accepts that it was an injury which is compensable. The evidence indicates that the condition eventually got better. Dr Bogoda’s clinical note dated 6 January 2014 specifically states thumb well.
The Tribunal finds that Ms Patdu suffered a workplace injury in relation to her right thumb on 23 May 2013, which was diagnosed by her doctor on 29 May 2013, from which she had recovered by 6 January 2014, if not earlier. She is entitled to be reimbursed for medical expenses in relation to that injury and to have time off as a result credited as compensation leave. She is also entitled to costs and disbursements related to the thumb injury.
In terms of the sore wrists and ganglions that constituted her second claim in early January 2014, later investigations showed that the wrist pain arose out of carpal tunnel syndrome. The ganglions came and went. The medical evidence indicated that there are no known reasons why ganglions appear and then disappear. The Tribunal is not satisfied that the ganglions constituted an injury under the Act.
The medical experts disagree as to whether carpal tunnel syndrome can be caused by repetitive movements in the workplace. They do not disagree that the nature of the work undertaken by Ms Patdu could result in her experiencing symptoms from carpal tunnel syndrome as a result.
Associate Professor Behan stated that Ms Patdu’s work-related issues are implicated in her carpal tunnel syndrome. He provided a list of possible causes for carpal tunnel syndrome including family history, being a menopausal female, being overweight, having endocrine problems and work activities. He noted weight increase and personal intrinsic factors as well as work combining to make Ms Patdu’s condition a work-related disturbance. However, on being questioned, he appeared to know little of her actual work and appeared to rely on Ms Patdu’s assertions.
Dr Beer, in his statement, stated that Ms Patdu felt that this had been exacerbated by her long period of work through Australia Post. Mr Beer indicated that the cause of Ms Patdu’s carpal tunnel syndrome is not obvious. He stated that her work could clinically explain her carpal tunnel syndrome but that it is relatively common with advancing age and there may very well be other causes.
Mr Stapleton believes that there is no work relationship to Ms Padhu’s condition as set out earlier in these Reasons.
Taking into account the comments of the three specialists and the available evidence, the Tribunal is unable to be satisfied in this particular matter that Ms Patdu’s carpal tunnel syndrome has arisen out of, or in the course of, her employment. Ms Patdu is convinced that the condition has been caused by the nature of her work. However all three specialists speculate on a number of possible causes, some of which are present in Ms Patdu’s circumstances. Based on the available evidence, the Tribunal is unable to find that Ms Patdu’s carpal tunnel syndrome was significantly contributed to by her employment. That condition is therefore not compensable under the Act.
In terms of other conditions for which Ms Patdu claimed, the ganglions came and went and the sore wrists were re-diagnosed as carpal tunnel syndrome. Taking into account the evidence of the medical specialists concerning ganglions as indicated earlier in these Reasons for Decision, the Tribunal finds that those conditions are not compensable under the Act.
DECISIONS
70. In relation to application no. 2015/3513, the Tribunal:
a. sets aside the decision under review and substitutes a decision that Ms Patdu suffered an injury to her right thumb on 23 May 2013 arising out of, or in the course of, her employment;
b. remits the application to the respondent for calculation of her entitlements pursuant to sections 14, 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 on and from 23 May 2013 to 6 January 2014 in respect of the injury.
c. orders the respondent to pay Ms Patdu’s costs and disbursements of that application pursuant to s 67 of the Act.
In relation to application no. 2014/4133 and application no. 2015/4644, the Tribunal affirms the decisions under review.
71. I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member
[sgd]…..........................................................................
Associate
Dated 15 December 2016
Dates of hearing 18-19 January 2016 Counsel for the Applicant Mr Mark Carey Solicitors for the Applicant Maurice Blackburn Lawyers,
Ms S Deerson, and Ms R Heffernan
Counsel for the Respondent Mr R Seit Solicitors for the Respondent Moray & Agnew Lawyers,
Mr L Dobelsky
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