Pearce and Australian Postal Corporation
[2002] AATA 483
•20 June 2002
CATCHWORDS – COMPENSATION – whether suitable employment offered – whether failure to accept that offer – decision affirmed.
Safety Rehabilitation and Compensation Act 1988 ss. 4, 14, 16, 19,
DECISION AND REASONS FOR DECISION [2002] AATA 483
ADMINISTRATIVE APPEALS TRIBUNAL )
) T1999/121
GENERAL ADMINISTRATIVE DIVISION )
ReRACHEL PEARCE
Applicant
AndAUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal: Miss S A Forgie (Deputy President)
Date: 20 June, 2002
Place: Hobart
Decision:The Tribunal affirms the reviewable decision of the respondent dated 1 June, 1999.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 27 July, 1999, the applicant, Mrs Rachel Louise Pearce, applied for review of a reviewable decision of the respondent, the Australian Postal Commission ("APC") dated 1 June, 1999. That reviewable decision affirmed an earlier determination dated 12 April, 1999 that Mrs Pearce's payments of compensation in respect of incapacity for neck and shoulder pain syndrome be ceased as from close of business on 30 April, 1999 and that she be paid only reasonable medical expenses pursuant to s. 16 of the Safety Rehabilitation and Compensation Act 1988 ("the Act").
At the hearing, Mrs Pearce was represented by her solicitor, Mr Bartlett, and APC by Ms McMahon of counsel. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with documents prepared by Mrs Pearce regarding her duties and the effect of those duties upon her, reports of Dr Sands dated 8 December, 1999 and 30 May, 2001, reports of Ms Anitra Wilson dated 4 September, 1999, 5 February, 2000, 23 May, 2000 and 18 May, 2001 and reports of Dr Jones dated 2 February, 2000 and 17 October, 2000. Mrs Pearce gave oral evidence in support of her own case together with Ms Anitra Wilson, Dr Sands and Mr Jason Dean Pearce. Dr Jones gave evidence in support of the case presented by the APC.
THE ISSUE
The issue in this case is whether Mrs Pearce has received an offer of suitable employment and she failed to accept that offer. Resolution of that issue determines the amount that she is able to earn in suitable employment and so determines the amount of compensation for incapacity that she is entitled to receive under s. 19 of the Act.
BACKGROUND
On the basis of the evidence, I have made a number of findings of fact on matters which were not in issue between the parties. I will set them out in the following paragraphs.
Mrs Pearce is employed by the APC as a Postal Services Officer and has been since approximately 1996.
On 25 February, 1997, Mrs Pearce completed a claim for compensation and rehabilitation. In that claim, she stated that she had been serving on the front counter on 12 February, 1997 and had felt a pain in her right shoulder. She had continued with her duties for the rest of the day as she had thought that it would disappear but the pain had become worse. She had completed an incident report on 19 February, 1997 and submitted a medical certificate from a general practitioner, Dr Rutter. The certificate stated that Mrs Pearce had suffered from a right trapezius muscle tear on 12 February, 1997. She underwent physiotherapy and hydrotherapy treatment, was certified unfit for work on some days and certified fit to work on modified duties and during restricted hours on others.
On the basis of her evidence (Exhibit A), I find that Mrs Pearce did not work from 18 February, 1997 until 24 February, 1997 and, after working at the end of the month, was absent due to her injury for the whole of March, 1997. She resumed work in April, 1997 when she performed duties for four hours each day. Her injury again led to her being absent from 22 April, 1997 until 1 June, 1997. She resumed work but was absent for the same reason in July, 1997. Over the following months until October, 1998, Mrs Pearce worked generally either for two, four or six hours each day but in August and September of that year, worked for five hours each day. Mrs Pearce, whose daughter was born on 13 November, 1998, had maternity leave extending from October, 1998 to January, 1999. She resumed work on 6 April, 1999. For the first two weeks, she worked for two hours each day. Over the following two weeks, she extended her working day to three hours and then four hours each day. Mrs Pearce was on sick leave from 3 May, 1999 until 18 June, 1999 and resumed work for two hours each day on 21 June, 1999. Her day was increased to four hours from 19 July, 1999 and that pattern continued until 7 August, 2000 with some isolated instances of sick leave and recreation leave.
After her return from maternity leave, other medical certificates were given to Mrs Pearce by Dr Rutter. He diagnosed the condition in his certificate dated 26 February, 1999 as neck/shoulder pain and certified that she was fit to return to her duties in the period 27 February, 1999 to 2 April, 1999.
APC obtained a report from Dr Donald Jones, Consultant Orthopaedic Surgeon, dated 18 March, 1999. After reviewing her condition, Dr Jones concluded that Mrs Pearce would be able to cope with 30 hours of work each week in sedentary light work. Her condition did not warrant a finding of total incapacity.
On 12 April, 1999, a delegate of APC determined that it was not liable to pay Mrs Pearce ongoing payments of compensation in respect of any incapacity with effect from 30 April, 1999. The delegate did so after finding that Mrs Pearce had been considered fit to undertake 30 hours per week provided she did not repeatedly open or close drawers. Mrs Pearce sought review of this decision in a letter dated 27 April, 1999.
Dr Rutter issued a number of certificates after APC's determination. He diagnosed that she was suffering from a chronic regional pain syndrome. With regard to her capacity for work, he certified on each occasion that she was fit to return to modified duties for a fortnightly period that he specified. In each case, he specified slightly different modifications. In his certificate dated 16 April, 1999, Dr Rutter certified that she was capable of returning to duties for the period 17 April to 23 April, 1999 for three hours each day according to the rehabilitation plan dated 16 April, 1999.
The rehabilitation plan dated 16 April, 1999 had been prepared by the Commonwealth Rehabilitation Service and had as its goal her returning to full duties for a 30 hour week. It specified three hours each day on the following duties: serving customers at the right side retail work station; sort small amounts of mail and put through stamp canceller; and respond to telephone enquiries and complaints. Mrs Pearce was to vary and rotate her duties and to avoid extended periods performing one type of task.
In the week from 23 April, 1999 to 30 April, 1999, Dr Rutter certified that she could undertake those duties for four hours each day. For the period 30 April, 1999 to 14 May, 1999, he had increased her duties to six hours per day but specified that work with mail sorting boxes was inappropriate. In his certificate dated 5 June, 1999, Dr Rutter reduced the number of hours that Mrs Pearce could work from six to four but otherwise did not alter his previous modifications. On 11 June, 1999, Dr Rutter specified that Mrs Pearce was incapacitated for work from 11 June to 18 June, 1999. When he saw her again on 18 June, 1999, Dr Rutter certified that Mrs Pearce was fit to return to modified duties from 19 June to 2 July, 1999 but only for two hours each day and according to the rehabilitation plan dated 16 April, 1999. He repeated the modifications for the period 3 July to 17 July, 1999.
APC obtained a report from a neurosurgeon, Dr Hunn. That report, dated 13 May, 1999, noted that Mrs Pearce had been referred to Dr Hunn by Dr Francis, a rheumatologist for an assessment as to possible neurological and radicular basis for her ongoing symptoms of right shoulder and upper limb pain. Dr Hunn had initially seen her on 27 January, 1998 and reviewed her on 15 May, 1998. He concluded that she was not suffering from a cervical problem but had wondered whether she might have suprascapular nerve entrapment. Consequently, he referred her to Dr Siejka, who reported to him on 9 February, 1998 that his findings were within normal limits. Dr Hunn reviewed Mrs Pearce on 15 May, 1998 when she raised the possibility of trigger point injections. Although he agreed that injections could be tried, Dr Hunn suggested deferring them in view of her pregnancy at the time. He had not seen her since that time and could not confirm a diagnosis in the absence of any evidence of a response to trigger point injections and could not comment on her capacity to work.
On 1 June, 1999, the delegate's decision was affirmed by the Senior Claims Manager of APC.
THE LEGISLATIVE FRAMEWORK
There is no question in this case that Mrs Pearce suffered an injury within the meaning of s. 4(1) of the Act and that APC is, therefore, liable to pay compensation to her if the injury results in, among others, incapacity for work (s. 14(1)). Her entitlement to compensation is prescribed by s. 19 of the Act. The amount of compensation paid in respect of incapacity for work is calculated according to formulae set out in ss. 19(2) and (3). In calculating the amount of compensation payable to Mrs Pearce, regard would need to be had to what Mrs Pearce's normal weekly earnings and what she "is able to earn in suitable employment".
What she is able to earn in suitable employment is the subject of s. 19(4):
"In determining, for the purpose of subsections (2) and (3), the amount per week that an employee is able to earn in suitable employment, Comcare shall have regard to:
(a)where the employee is in employment (including self-employment) - the amount per week that the employee is earning in that employment;
(b)where, after becoming incapacitated for work, the employee received an offer of suitable employment and failed to accept that offer - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(c)where, after becoming incapacitated for work, the employee received an offer of suitable employment and, having accepted that offer, failed to engage, or to continue to engage, in that employment - the amount per week that the employee would be earning in that employment if he or she were engaged in that employment;
(d)where, after becoming incapacitated for work, the employee received an offer of suitable employment on condition that the employee completed a reasonable rehabilitation or vocational retraining program and the employee failed to fulfil that condition - the amount that the employee would be earning in that employment if he or she were engaged in that employment;
(e)where, after becoming incapacitated for work, the employee has failed to seek suitable employment - the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment;
(f)where paragraph (b), (c), (d) or (e) applies to the employee - whether the employee's failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in Comcare's opinion, reasonable in all the circumstances; and
(g) any other matter that Comcare considers relevant."
In determining whether or not employment is "suitable employment", regard must be had to:
"(i) the employee's age, experience, training, language and other skills;
(ii)the employee's suitability for rehabilitation or vocational retraining;
(iii)where employment is available in a place that would require the employee to change his or her place of residence - whether it is reasonable to expect the employee to change his or her place of residence; and
(iv)any other relevant matter;" (s. 4(1)(a))
MEDICAL EVIDENCE
Dr Rutter wrote a report dated 25 January, 1999. He noted that he had been treating her since 18 February, 1997 and had personally examined the drawers that led to her injury. He was aware of the duties set out in her rehabilitation plan and considered that she was able to work for 30 hours each week within the restrictions in that plan. Dr Rutter was not confident that Mrs Pearce would be able to return to normal duties as they had failed to achieve that over the previous two years.
Dr McKenna, a consultant anaesthetist, was unable to reach a diagnosis of Mrs Pearce's condition but did not consider that she suffered from a regional pain syndrome. He noted her complaints of pain in his report dated 8 July, 1999 and recorded that she had difficulty in coping with the presence of pain in her life. He discussed her capacity for work with Dr Small, with whom Mrs Pearce had discussed ways in which to cope with the pain. Dr McKenna said that he tended to agree with Dr Small that Mrs Pearce could possibly work for 30 hours each week but that those hours would be reached over a period of two or three months.
Dr Jones has written two reports since the T documents were prepared. The first, dated 2 February, 2000, set out Mrs Pearce's progress since Dr Jones' previous assessment (Exhibit 2). He noted that her symptoms had remained essentially the same as in the past. She continued to experience pain in the lower aspect of her neck and out over the right side of her shoulder. Over the previous six months, she had developed pain in her right wrist and pins and needles in all of the fingers on her right hand. Her neck often felt swollen and it was always sore to touch in the lower aspect. Her right arm often felt swollen and tight and she continued to experience sharp pains in the original area of the injury over the top of her shoulder. Mrs Pearce, Dr Jones noted, reported a feeling of tightness across her shoulder and an ache that is present most of the time. On his examination, Dr Jones found the posture of her neck and head to be normal and also found her able to demonstrate a full range of cervical movement. She demonstrated the movement without any complaint of pain until asked whether she did. She then indicated that turning her head to the right caused minor discomfort over the right side of the base of her neck.
With regard to her upper limbs and shoulder girdles, Dr Jones found that:
"Her shoulder contours remained normal. However, Mrs Pearce demonstrated marked affect and an inability to lift her right arm more than 45o from her side.
This was associated with a shrugging of her right shoulder and, when I asked her to place her hand behind her head, she was able to do so only very slowly and carefully, tending to flex her head radically in order to place her hand behind her head.
Similarly, Mrs Pearce demonstrated an inability to place her hand behind her back. However, passive external rotation of her right shoulder with her arm at her side was normal and symmetrical with that of her left.
I was able to abduct her right shoulder to 90o passively, although this was resisted. Mrs Pearce resisted my attempt to externally rotate her right arm with her arm at 90o abduction.
Flexion passively was achieved to 70o. However, there did not appear to be any passive resistance to movement, any resistance being active and offered by Mrs Pearce in order to modify her pain.
Power in her shoulder girdle appeared normal and there did not appear to be any weakness in her forearm or hand, although she demonstrated mild weakness of grip in her right hand.
Her upper limb reflexes remained brisk and there did not appear to be any consistent sensory impairment in her right upper limb.
There did not appear to be any evidence of a joint contracture in relation to her right gleno-humeral joint." (Exhibit 2, page 4)
Dr Jones concluded that Mrs Pearce's ongoing symptoms some three years after their onset were by then atypical. He was unable to identify any structural injury on clinical or radiological evidence. In Dr Jones' opinion, Mrs Pearce is suffering from a regional pain syndrome affecting her right shoulder and arm. It is an atypical pain response and it is that response that is responsible for her symptoms and current presentation rather than any structural injury. It is an entrenched pain behavioural response. As to her capacity for work, Dr Jones expressed the view that, in the absence of objective evidence of any structural injury, Mrs Pearce had the capacity for work. The type of work that she was capable of undertaking was sedentary work below shoulder height. Provided she did not lift above shoulder height and did not repetitively lift or carry with her right hand, she could return to her normal duties.
Dr Jones reiterated much of this report in his later report dated 17 October, 2000 (Exhibit 3). He diagnosed her as suffering from a non-specific neck, shoulder and arm pain. Dr Jones stated that Mrs Pearce was claiming an incapacity as a result of that pain but he was unable to confirm her symptoms on the basis of objective evidence. He also noted that she was not suffering from any muscle bulk wasting in any part of her pectoral girdle or arm. In so far as her ability to work is concerned, he repeated his opinion that she is capable of returning to her normal duties.
In his oral evidence, Dr Jones said that he continued to hold the same opinion. If Mrs Pearce were permitted to work at her own pace on rotating duties with no overhead work, occasional duties on the counter and breaks when it suited her, Dr Jones considered that it was "perfectly reasonable to assume" that Mrs Pearce could undertake those duties on that basis for 30 hours per week. He did not observe any muscle wasting.
Dr Sands reported on 8 December, 1999 and 30 May, 2001. In his earlier report, the findings of which he confirmed in his later report, Dr Sands set out the history of Mrs Pearce's injury, the symptoms she reported to him, their effect on her life and her treatment. On examination, he found no evidence of neurological disease and had normal reflexes and sensations all over. She was normotensive. All imaging, including CAT scan, ultrasound of her shoulder and bone scan, is normal. Her right shoulder droops slightly when she stands but found no evidence of obvious muscle wasting and her bicep measurements were the same for both her right and left arms. Normally, he would have expected her right arm measurement to be larger than her left as she is right hand dominant. Dr Sands found that Mrs Pearce was tender to palpation where her trapezius muscle joins into her shoulder joint and there was a tender spot high laterally where it abuts the 7th cervical vertebra. Mrs Pearce reported that she felt that there was swelling in her right arm. Finally, Dr Sands noted that Mrs Pearce has lost 20 degrees of internal rotation of her shoulder joint and cannot abduct the arm actively to 90 degrees. Pain was the limiting feature. Passive full abduction of her shoulder could be achieved but only with substantial discomfort to Mrs Pearce.
Dr Sands concluded that Mrs Pearce suffers from a regional pain syndrome of complex aetiology that arises from either the neck, trapezius muscle or shoulder joint or a combination of two or more of these. He thought it unlikely that any more precise pathology would be uncovered. Dr Sands considered that Mrs Pearce was not exaggerating her symptoms and had to assess her capacity for work taking them into account together with the findings on his examination. On that basis, it was his opinion that she could not work for more than 20 hours each week. Were Mrs Pearce to be asked to carry out additional tasks or were she not allowed to work at her own pace, she would only have the capacity to work for fewer than 20 hours each week.
In his oral evidence, Dr Sands said that he considered that Mrs Pearce was genuine in her complaints of pain. He observed muscle wasting caused by Mrs Pearce's not using her arm. It is fairly typical to find muscle wasting with a chronic pain syndrome, Dr Sands said. With regard to her work, Dr Sands said that he would expect her to be able to do more work after her maternity leave than she had done before. He also agreed with Ms McMahon that Dr Rutter would be in the best position to assess her capacity for work as he has been treating her since 1997 and sees her each month. If Dr Rutter thought that she should try to extend her hours then it is reasonable that Mrs Pearce at least try to work. It was reasonable, Dr Sands agreed, that Mrs Pearce undertake a gradual return to 30 hours work each week.
Ms Anitra Wilson had carried out a Functional Capacity Evaluation of Mrs Pearce on 19 August, 1999 and reported on it on 4 September, 1999. She carried out an extensive examination and recorded limitations in Mrs Pearce's range of movement, decrease in grip strength, limitations on her ability to lift weights and generally a slow deterioration in her symptoms and physical findings. She concluded that Mrs Pearce was then working for 20 hours each week but Mrs Pearce had told her that she was absent for at least one day each week because of pain or headaches. That suggested to Ms Wilson that 20 hours was too much and she considered that 30 hours would not be manageable. In her opinion, Mrs Pearce could work for three to four hours each day provided she did not have to drive too far to go to work and she avoid manual handling and repetitive overhead and forward reaching.
Ms Wilson was asked to review Mrs Pearce. She did so and recorded her findings and opinion in her report dated 5 February, 2000. Ms Wilson concluded that Mrs Pearce was unable to increase her hours of work above the then current level of four hours each day over a five day week. Her third report addressed matters raised in reports by Dr Jones and Dr Rutter. Her final report dated 18 May, 2001 reached the same conclusion.
In cross-examination, Ms Wilson acknowledged that she had not been to Mrs Pearce's workplace and, of Mrs Pearce's duties, knew only what Mrs Pearce had told her. When asked what repetitive work Mrs Pearce undertook, Ms Wilson said that clerical work required a lot of repetitive arm work. That clerical work involved photocopying but she did not know how much photocopying was required or how long it took her. She knew no details of her stock work and no details of her duties at all. Ms Wilson said that she knew that Mrs Pearce suffered pain daily and that she stopped work when she suffered from pain. Her pain varied depending on the work she did. Duties involving clerical work, stock counting and photocopying were not repetitive duties but were unrealistic duties for Mrs Pearce. Ms Wilson said that she understood that Mrs Pearce worked in the back office of the post office rather than at the counter and had based her opinion on what she understood a person did in a back office. She acknowledged that she had not attended any offices to check the duties performed by staff in those offices.
Ms Wilson said that she had not discussed Mrs Pearce's condition with any doctors. She had read reports by Dr Rutter and Dr Jones but had not seen any from Dr McKenna, Dr Hunn or Dr Francis. She read their reports during the course of the hearing. When told that Dr McKenna and Dr Small thought that Mrs Pearce could possibly work for 30 hours each week, Ms Wilson said that she could not do more than 20 hours in view of her pain response. When told that Dr Rutter considered she could work for 30 hours each week, Ms Wilson said that she deferred to him as he saw Mrs Pearce all the time. She believed that he was the appropriate person to express a view on her capacity for work.
CONSIDERATION
On the basis of the evidence of Mrs Pearce given both orally and in her statement of duties (Exhibit A), I find that her duties since August, 2000 have been to help her supervisor to fill low shelves, assist with sales and displays, answer the telephone, photocopy as required, deal with customer orders, floor walk, undertake the high risk security check of express post and count the stock on a weekly basis. Her duties can be undertaken at her own pace and according to her own priorities and she is able to stop to rest at her own discretion. No-one complains if she does have breaks. If she complained about her duties, they were changed.
In her evidence, Mrs Pearce said that she was unable to extend her hours from the four that she was undertaking at the time of the hearing. She described the difficulties and pain that she encountered in returning to work in April, 1999:
"Started on 2 hrs for a few weeks and was working at Penguin, this meant there was no driving involved which helped a little, I went to 3 hrs and then to 4 hrs, massage stopped and shoulder deteriorated the pain was at its worse (having 6 weeks off), I returned to 2 hrs and went okay then to 4 hrs, tried a few attempts at 6 hrs but shoulder was bad, after 2-3 hrs I could hardly move and ended up sitting there for the other 3 hrs.
Went back to 4 hrs and was just coping, with the help of Jason rubbing it and heat bags, showers and pain killers I was still having days off in between weeks, returning to Burnie pain increased as driving was aggravating it, after 2 hrs at work pain was bad and headaches were getting worse this would cause me to drive home left handed, I seem to stay at work for 4 hrs having 1-2 days off a fortnight with pain. After 2 hrs the pain is now down my arm and wrist with my shoulder aching, my shoulder is tight and I also get headaches, by the time my shift is finished I am in a lot of pain and discomfort, I am taking Panamex during the day and 2 Paradex at night and am in bed by 8-8.30pm with the heat bag and sometimes earlier." (Exhibit A)
Mrs Pearce said that the only relief that she can obtain comes with massage but it is only temporary relief.
On the basis of both her evidence and of the medical evidence, I find that she is suffering pain when she performs her duties at Australia Post but that there is no known anatomical reason for that pain. I am satisfied that she suffers pain because she has a regional pain syndrome. There was some focus during the hearing upon whether or not Mrs Pearce has suffered muscle wasting as a result of her not using her arm. Whether or not she has does not alter my finding that she suffers from that regional pain syndrome. Nor does it lead me to conclude that she is not capacitated to do the work that she was undertaking at the date of the decision (i.e. 12 April, 1999 with effect from 30 April, 1999) or that she is not capacitated for other work. That is the date at which I must consider her capacity for work and the suitability of the work she was undertaking.
I have already found that Mrs Pearce has been an officer with Australia Post since approximately 1996. She has undertaken a range of duties at post offices both at the counter and elsewhere at the post office. The duties that she is currently undertaking and that I have found she is undertaking are consistent with her age, experience, training and language. In addition, they are consistent with the duties that she was undertaking before her injury. She is not required to go to a post office that does not suit her domestic arrangements and she is permitted to carry out her duties at her own pace without criticism. She is able to rest if she suffers pain and then to resume her duties. Taking these matters into account and the nature of her condition, I am satisfied that the duties that Australia Post has offered to Mrs Pearce amount to suitable employment.
That brings me to the number of hours for which Mrs Pearce had the capacity to undertake those duties in April, 1999. Dr Small, Dr McKenna and Dr Rutter all considered that Mrs Pearce could work for 30 hours each week either immediately or on a graduated return to work. Dr Sands considered that she could work on the duties for only 20 hours each week but then said that he would defer to Dr Rutter's opinion. Ms Wilson said that Mrs Pearce could not increase her hours of work beyond those she is currently undertaking but then said that she also deferred to Dr Rutter's opinion.
It seems to me that the balance of evidence favours my finding that Mrs Pearce had the capacity to undertake the restricted range of duties I have described on the conditions I have described for 30 hours each week. Each of the medical practitioners is expert in his field but in this case her general practitioner, Dr Rutter, is in the best position to assess her capacity. He has seen her on a regular basis and has been able to review her progress. His careful approach to Mrs Pearce's care is typified in his having visited her place of work to examine it. In light of the careful basis upon which he has reached his opinion, I prefer his evidence to that of Ms Wilson. Unlike Dr Rutter, she has not had the benefit of a detailed knowledge of Mrs Pearce's duties and her place of work. Finally, I note that Dr Rutter's evidence is supported by Dr McKenna and Dr Small.
In view of this conclusion, it follows that I have decided to affirm the reviewable decision of the respondent dated 1 June, 1999.
I certify that the thirty-nine preceding paragraphs are a true copy of the reasons for the decision herein of
Miss S A Forgie (Deputy President),Signed: …………………………………..
Paul Paczkowski AssociateDates of Hearing 22 August, 2000 and 20 March, 2002
Date of Decision 20 June, 2002
Solicitor for the Applicant Mr Bartlett
For the Applicant Bartletts
Counsel for the Respondent Ms McMahon
For the Respondent Page Seager
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