PEARCE and AUSTRALIAN POSTAL CORPORATION

[2010] AATA 668

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 668

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2008/0042

GENERAL ADMINISTRATIVE DIVISION		)
Re		RANDAL PEARCE

Applicant

And  AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal  Senior Member B J McCabe and Dr G J Maynard, Member

Date 3 September 2010

Place Brisbane

Decision The reviewable decision with respect to the applicant’s left and right shoulder conditions is remitted to the respondent for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975. The respondent’s reconsideration shall take into account the Tribunal’s finding that the permanent aggravation of the applicant’s shoulder conditions is attributable to surgical intervention that followed the onset of symptoms at work. The reconsideration should be completed within 90 days of this decision. The reviewable decision is otherwise affirmed.

........................[Sgd]......................

Senior Member

CATCHWORDS

COMPENSATION – Safety, Rehabilitation and Compensation Act – right and left shoulder conditions – right elbow condition – whether ongoing problems are referable to underlying degenerative conditions – work contributed to aggravation of condition – permanent aggravation attributable to medical treatment.

Administrative Appeals Tribunal Act 1975 (Cth), s 42D

Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 16, 18

REASONS FOR DECISION

3 September 2010 Senior Member B J McCabe and Dr G J Maynard, Member  

1. Mr Randall Pearce is the applicant in these proceedings. He claims he developed right and left shoulder and right elbow conditions in the course of his employment as a mail officer at Australia Post. Australia Post, the respondent, accepts that Mr Pearce may have developed problems attributable to his work but argues those problems should have subsided over time. It denies any ongoing liability for conditions under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“the SRC Act”) that it says should have resolved. The respondent says any ongoing problems are referable to the applicant’s underlying constitutional degenerative conditions.

2. Mr Pearce has asked the Tribunal to reconsider the respondent’s reviewable decision dated 7 November 2007. That decision affirmed a determination to cease liability for the three conditions. The applicant had already been paid an amount of lump sum compensation in respect of permanent impairment. For reasons we will explain, we accept the applicant is right in respect of his shoulder conditions. We accept he continues to experience ongoing problems that give rise to a liability under ss 16 and 19 of the Act. We are not persuaded the applicant continues to experience an elbow problem. The decision under review with respect to the shoulder conditions must therefore be set aside. The decision with respect to the elbow condition is affirmed.

Background

3.      The applicant commenced employment with Australia Post in 1992. He became a permanent employee in 1994. He was initially a mail officer. One of his principal tasks was sorting mail. He is right-handed. He says the right shoulder and elbow became symptomatic in August 2001 while he carried out repetitive sorting activities. He complained about the pain and he was sent to see the respondent’s doctors. He also saw his own general practitioner.

4.      Mr Pearce claims he had never experienced symptoms in his shoulder or elbow before the onset of symptoms in around August 2001 while he was at work. That evidence is difficult to square with the clinical notes of his general practitioner. Those notes (in Exhibit 30) dated 4 June 2001 record the applicant: “played football 2 days ago C/O pain in R shoulder RED, ROM, BLACK L EYE”. The applicant now says the black eye was the result of a fight in a hotel that happened days earlier. Mr Pearce was unable to explain how or why the doctor would have come to record the incorrect history. There is an obvious explanation for the entry: Mr Pearce actually said those things to his doctor. There is an earlier note dated 9 December 1999 stating “shoulder better now for clearance back to work”. There is a further entry dated 22 January 2000 stating inter alia “C/O muscle ache ESP in L Shoulder”.

5.      We were told the applicant had previously worked as a slaughterman in an abattoir. It is well-known that shoulder conditions like those exhibited by the applicant are common amongst slaughtermen.

6.      After reviewing the medical evidence and the applicant’s history, we are satisfied he was experiencing rotator cuff degeneration with periodic episodes of pain and discomfort for at least several months before he became symptomatic at work following mail sorting activities. We suspect that degeneration may have been brought on (or perhaps exacerbated) by a history of work in the meat industry and playing football. The real question for us is whether that underlying condition was permanently aggravated by his work at Australia Post.

7.      Mr Pearce went back to work in 2001 after seeing Dr Sowby, amongst others. The applicant said the pain he had experienced following his sorting duties settled down although it would occasionally flare up – for example, in May 2002, when the mail centre was particularly busy. He took a week off on that occasion. He was given a work program that involved him sorting mail with his left hand when he returned to the workplace. After a time, his left shoulder also became painful. His doctors initially prescribed conservative treatment, including local injections, physiotherapy and suitable duty programs, with limited success. Dr Millroy, an orthopaedic surgeon, recommended surgery to the right shoulder in January 2003, but the advice was not accepted at that point. In any event, the applicant says his shoulders never recovered. He ceased work in November 2004. He has not worked since. He says he continues to experience ongoing pain in the shoulders.

8.      We were taken to a mail centre to view the sorting frames used by the applicant. We saw the applicant sit at his frame and he demonstrated the action he used when he sorted the mail. We were also shown photographs of the frames. The photographs were made available to the expert medical witnesses.

Evidence from the medical experts

9.      The medical experts (and the evidence they provided) focused on the applicant’s shoulder conditions. His elbow condition was barely mentioned, even in the submissions of the parties. The applicant’s counsel, Ms Kidson, said only that the evidence does not suggest a change. But that will not do. We were not provided with up-to-date evidence confirming that the problems persist. If it were still a problem, we would expect to be shown evidence to that effect. In the circumstances, we cannot be satisfied that the decision in respect of the elbow conditions should be set aside. We will focus in these reasons on the shoulder conditions.

10.     The applicant was seen by Dr James Curtis, orthopaedic surgeon, on 3 September 2002. Dr Curtis took a history, conducted a physical examination and reviewed imaging studies before he provided a report to the Applicant’s representative at that time.  Dr Curtis concluded the Applicant suffered from bicipital tendonitis and a full thickness tear of the supraspinatus tendon. In later correspondence he stated that he believed the injury was caused by repetitious use of his right arm sorting mail.  He also believed that an earlier injury from 2001 was transient in nature and had settled and that the 2002 injury was a new event.  He recommended surgery to repair the torn rotator cuff.

11.     The Applicant saw Dr Robinson, an orthopaedic surgeon, in Sept 2003. Dr Robinson diagnosed chronic degeneration of the right and left rotator cuff with acute exacerbations of symptoms.  In his opinion the injuries were work related because of exposure to repetitive activity. He concluded the suitable duties program resulted in increased workload on the applicant’s left shoulder and made the chronically degenerate left shoulder symptomatic.  Dr Robinson apportioned 60% of the right shoulder symptoms to occupational exposure at Australia Post and 40% to previous work in the meat industry.  He reversed the proportions for the left shoulder.  Dr Robinson recommended surgery.

12.     Dr Robinson operated separately on both shoulders in 2004 and achieved what in hindsight might be regarded as sub optimal results.

13.     Dr Robinson provided a report to the applicant’s representative dated 15 October 2007 following an examination performed on 19 September 2007. The applicant had been reviewed as a follow-up to treatment that occurred on 4 April 2005. The Applicant was still troubled by bilateral shoulder pain in 2007. Dr Robinson reported that the applicant denied experiencing any problems relating to either shoulder prior to 2001. He also reported that the applicant had not been in paid employment since 2004.

14.     Dr Robinson gave the results of his examination and reports on X-rays and ultrasound studies.  He confirmed the presence of a rotator cuff injury.  He said that use of the upper limbs at an angle greater than thirty degrees to the vertical axis of the body puts someone at risk of developing rotator cuff degeneration. If Dr Robinson’s view is right, the applicant’s work put him at risk of developing a rotator cuff injury. We think it is appropriate to treat Dr Robinson’s views with some caution as he was a treating doctor, and there is a danger his objectivity might be compromised in circumstances where his treatment was ultimately unsuccessful.

15.     The applicant’s lawyers also arranged for him to be reviewed by Dr Foley, an occupational physician, in November 2005.  Dr Foley reported that the applicant’s conditions had stabilised and that he had a limited capacity to work.  The shoulder conditions were still present.  The applicant was assessed as having an impairment of ten percent in each shoulder. The applicant did not volunteer any history of shoulder pain before 2001. That omission suggests Dr Foley’s evidence must be treated with caution.

16.     Mr Pearce was then reviewed by Dr Olsen, as occupational physician, on 12 April 2007.  Dr Olsen’s findings were similar to those of Dr Foley.  The bilateral shoulder conditions were still present and he hesitated to recommend a return to work.  We note there is no record of the applicant providing a medical history of shoulder problems before 2001. That omission might affect the weight which should be attached to the opinion.

17.     We now come to the reports of Dr Gillett and Associate Professor Steadman.  These reports are relatively recent and both doctors appear to have been provided with a comprehensive history. The doctors disagreed with each other on causation of the ongoing shoulder pain. As it happens, Dr Gillett is in substantial agreement with Dr Robinson.

18.     Professor Steadman says the applicant ceased to suffer the effects of the work related injury and now suffers from a continuing constitutional degenerative condition of the shoulders. He based this opinion on the bilateral nature of the condition, the presence of osteoarthritis in both shoulders from an early stage, the natural history of rotator cuff degeneration. He also disagrees with Drs Gillett and Robinson over the mechanism of causation of rotator cuff condition.

19.     Neither Dr Robinson nor Dr Gillett agrees with Professor Steadman on the presence of osteoarthritis in the shoulders on X-rays.  Dr Gillett describes changes associated with rotator cuff injury and evidence of trauma to the left shoulder in the earlier X-rays. He believed that the glenohumeral joint is preserved in both shoulders and that the earlier changes would be regarded as mild. Dr Gillett disagrees with the opinion that the applicant’s radiology has progressed significantly between 22 August 2001 and 9 August 2007. He said that ultrasound examination demonstrated the presence of tendon damage within the rotator cuff on both sides.

20.     Professor Steadman does not accept that there were complications following the surgery to each shoulder. Dr Gillett and Dr Robinson are of the opinion that the surgery failed to achieve the desired result and it is this factor which has lead to the continuation of the applicant’s ongoing symptoms. They say the intervention of failed surgical treatment has altered the course of the natural history of the degenerative condition in a way not addressed by Professor Steadman.

21.     Professor Steadman said it was the opinion of his orthopaedic colleagues generally that one was not generally at risk of developing rotator cuff problems until one worked with the arms extended above ninety degrees to the axis of the body. We note Dr Curtis appeared to share that view, although it was not expressed in such a forthright way in his report. Drs Gillett and Robinson believed that the risk of rotator cuff problems began when one worked at an angle above thirty degrees to the body’s vertical axis – which certainly occurred in this case.  To support this in evidence Dr Robinson referred to two papers by Sigholm in the Journal of Orthopaedic Research in 1994 and 1988 that supported the thirty degree elevation and proposed a mechanism why it was so.

22.     Professor Steadman did not offer a detailed explanation of his view that (a) the work related trauma had ceased or (b) the on going symptoms were the result of the constitutional degeneration of the rotator cuff.  He offered no evidence other than his opinion of what was the natural history of the degenerative condition.  He was unable to predict the outcome for the applicant in the absence of the workplace trauma. He seems to have placed no weight on the consequences of failed surgical treatment for the accepted conditions as a cause for on going symptoms.

23.     The evidence of Dr Gillett and Dr Robinson should be preferred to that of Professor Steadman. Their views appeared to have taken into account the impact of the surgery which Professor Steadman disregards. They also referred extensively to the radiological evidence. We note that their conclusions, which were carefully explained, appear to be consistent with the available literature. Professor Steadman, in contrast, preferred to rely on his (admittedly extensive) experience.

Summary of findings

24.     Our findings of fact are as follows. The applicant experienced rotator cuff pathology in both shoulders that pre-dated his complaints of workplace trauma in 2001. We accept that the applicant’s work contributed to an aggravation of those conditions in that it caused both shoulders to become symptomatic. We are satisfied the workplace contribution was significant. One would normally expect the aggravation to settle down (in the sense that the conditions would return to their underlying course) within 6-24 months. That has not occurred in this case: the applicant’s shoulder conditions (but not his elbow condition) are significantly worse than they would otherwise be. The shoulder conditions did not improve (or, more accurately, return to their underlying course) because of the unsuccessful surgery.

Is the respondent liable for an aggravation of the condition that results from medical treatment?

25. The parties did not address us directly on the question of whether the respondent would be liable for the consequences of medical treatment following a work-related injury. That is not altogether surprising given the reviewable decision did not focus on that explanation for what has occurred either. We think the respondent should consider that question now. We will remit that part of the decision that relates to the shoulder conditions to the respondent for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 so that it might focus on the implications of our finding that the permanent aggravation of the applicant’s shoulder conditions is attributable to the medical treatment he received following the onset of symptoms at work.

Conclusion

26. The reviewable decision with respect to the applicant’s left and right shoulder conditions is remitted to the respondent for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975. The respondent’s reconsideration shall take into account the Tribunal’s finding that the permanent aggravation of the applicant’s shoulder conditions is attributable to surgical intervention in 2004. The reconsideration should be completed within 90 days of this decision. The reviewable decision is otherwise affirmed.

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr G J Maynard, Member.

Signed: .......................[Sgd]....................................................
  Patrick MacDonald

Dates of Hearing  3 June 2009
  10 May 2010
  11 May 2010 
  12 May 2010
Date of Decision  3 September 2010

Counsel for the Applicant         Ms N Kidson

Solicitor for the Applicant          Maurice Blackburn
Counsel for the Respondent     Mr C Clark
Solicitor for the Respondent     Sparke Helmore