Pearsall and Australian Postal Corporation
[2002] AATA 1197
•19 November 2002
DECISION AND REASONS FOR DECISION [2002] AATA 1197
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/737
GENERAL ADMINISTRATIVE DIVISION )
Re BEDE SIDNEY PEARSALL
Applicant
And AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M D Allen, Senior Member Dr P Lynch, Member Mr S Webb, Member
Date19 November 2002
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS
WORKERS' COMPENSATION – Claim for right shoulder condition and household services - Tribunal not satisfied shoulder condition work caused and insufficient evidence to maintain the claim for household services.
Safety, Rehabilitation and Compensation Act 1988 s 14 s 29
Treloar v Australian Telecommunications Commission 26 FCR 316
REASONS FOR DECISION
19 November 2002 Mr M D Allen, Senior Member Dr P Lynch, Member Mr S Webb, Member
By application made on the 7 May 2002 the Applicant sought review of a "reviewable decision" of the Respondent made 22 March 2002 which decision affirmed a prior determination rejecting liability to compensate the Applicant pursuant to the Safety, Rehabilitation and Compensation Act 1988 (as amended) for permanent impairment to his right shoulder and for compensation for household services and attendant care services.
The said application for review came on for hearing before this Tribunal on 29 October 2002. At that hearing the following documents were taken in as exhibits and marked as follows and namely:
Exhibit Description Date
T1-T37 The documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 -
A1 Applicant's Statement of Facts and Contentions Undated
R1 Respondent's Statement of Facts and Contentions 17 October 2002
R2 Report of Dr Ireland 16 October 2002
R3 Report of Dr Leicester 21 August 1995
R4 Report of Dr Leicester 28 July 1997
R5 Report of Dr Leicester 16 February 1998
R6 Report of Dr Leicester 20 April 2000
R7 Video film showing the Applicant -
The Applicant originally claimed worker's compensation in respect of his right shoulder on the 26 September 1984. As a result of that claim reports were obtained from Dr N C Marsh, an Occupational Physician, and it would also appear that the Applicant attended a Commonwealth Government medical officer but no reports from that medical officer at currently extant. The Applicant conceded in evidence that his statement in 1985 (see Document T5) that he had previously seen a specialist and an Australia Post medical officer was correct.
In his report of 28 May 1985 to the Respondent Dr Marsh said:
"He had also complained of occasional pain and tenderness of the left side of the neck which radiated into the shoulder."
And continued:
"I considered that basically he was suffering from degenerative changes which may well have been exacerbated or aggravated through his work situation."
Although Dr Marsh refers to the left side of the neck we are satisfied that this was a typing error and it was the right shoulder or the right side of the neck regarding which the Applicant made complaint. We also noted that Dr Marsh reported:
"He said that he was generally coping at work with the medication and found that using a trolley instead of a shoulder bag was reducing his neck and shoulder problems."
Despite several attendances before medical specialists in relation to a claim regarding his lower back the Applicant made no complaint of shoulder pain until he attended Dr Tinning, Orthopaedic Surgeon, on the 11 September 2000. In his report of 28 September 2000 to the Applicant's solicitors Dr Tinning states:
"There has been a relatively recent complaint relating to his right shoulder."
It was only after the receipt of that particular report that the Applicant's solicitors on his behalf made a claim against the Respondent in respect of an injury to the right shoulder and arm.
Document T7 is the copy of a medical certificate dated 10 August 1992 in which the Applicant complained of painful right shoulder. It would appear however that in 1987, 1988, 1990 and 1991 the Applicant had taken time from work on account of pain in his shoulder. There appears to have been no absences from work because of shoulder pain in the period from 1985 to 1987. The Applicant stated that whilst he had on occasions taking time off because of pain in his right shoulder he had not sought any treatment for that particular ailment.
On and about the 24 November 1992 the Applicant injured his back whilst working at the Campbelltown Mail Centre as a night sorter. He subsequently sought treatment for this injury however in 1995 he was retired from the Australian Postal Corporation because of his back injury and because of incapacity occasion by osteoarthritis to both hips. There is no issue between the parties that the Applicant's osteoarthritis of both hips is not a work caused injury or disease.
On the 23 June 1993 the Applicant was examined by Dr Evans, Orthopaedic Surgeon, on behalf of the Respondent. The history taken by Dr Evans records:
"He had an injury in the right shoulder and right neck region in 1984. He was off work for about a week, he thinks."
Under the heading of "PRESENT COMPLAINTS" Dr Evans says:
"He has low back pain which travelled to the right buttock and the mid right thigh posteriorly. …"
No mention is made of any right shoulder complaints in the report of Dr Evans.
Document T9 is a report by Dr John Mathews the Applicant's treating general practitioner. Dr Mathews says in the report:
"This man first presented to this surgery on the 25th November, 1992. He complained of low back pain which started after he lifted a heavy mail bag at work in his position as a postal officer with the Australia Post. He also complained of the leg pain due to increased work.
Most of his pain appears to be in the low back area where the radiation down the back of the right leg as far as the mid calf. There was no associated paraesthesia and his general health was good."
It would be noted that in his report Dr Mathews makes no comment whatsoever about any right shoulder pain.
On the 11 May 1998 the Applicant was examined by Dr Anthony Hodgkinson, Orthopaedic Surgeon, on the behalf of the Applicant. Dr Hodgkinson took no history of any right shoulder complaint.
At the request of his solicitors the Applicant on the 12 October 1999 was examined by Mr Bracken, Orthopaedic Surgeon. In his report of that day (Document T13) Mr Bracken took no history of any complaint of the Applicant with regard to his right shoulder. Mr Bracken's report is concerned solely with the Applicant's back. It is significant however that Dr Bracken opined:
"It is certain that this man had significant degenerative changes present in his low back prior to the incident of 22.11.92 but apparently not symptomatic prior to that date."
He also added:
"… from 1996 onwards he has become aware of increasing arthritic changes in his hips … The occurrence of osteoarthritic changes in his hips must be considered to be genetic and totally unrelated to his work."
On 4 November 1999 in the report to the Respondent's solicitors (Document T14) Dr Maxwell, Orthopaedic Surgeon, took a history of the injury in the right shoulder in 1987 carrying postal bags. He then states under the heading "PRESENT SYMPTOMS" the following:
"He complains of pain in both hips which radiates across his back. He experiences pain in the right groin which radiates down to the right shin. He states that his left hip is not as painful. He takes Panadeine Forte because of pain in his right hip at night time. He is unable to sit for extended periods or walk further than 200m. He feels he has to keep moving. His right hip also clicks. He has no numbness or pins of needles in his legs. He states that he also experiences some back pain which is better when he is moving. His back and hips are stiff first thing in the morning."
Dr Maxwell then went on to state:
"1. He suffers from bilateral osteoarthritis of the hips.
2. I considered that his condition is due to natural progression for pre-existing or underlying condition."
It should be noted that despite the full history and details of present symptoms taken by Dr Maxwell no complaint was made of any right shoulder problems.
Exhibits R3 to R6 inclusive are reports by Dr Leicester, Orthopaedic Surgeon, to the Applicant's general practitioner. Those reports referred exclusively to the Applicant's osteoarthritis of both hips. In his first report namely dated 21 August 1995 Dr Leicester however took a history of "he has a history of longstanding back pain and bilateral hip pain" no mentioned was made in any of Dr Leicester's reports of any problems with the Applicant's right shoulder.
As stated above the Applicant was examined by Dr Tinning, Orthopaedic Surgeon, on the 11 September 2000 the request of his solicitors. In the history taken by him Dr Tinning said:
"There has been a relatively recent complaint related to his right shoulder. He said that he has been aware of some problem in the right shoulder since 1987 but he's been able to tolerate it. He notices this complaint in the right shoulder if he uses his arm in a way that puts a strain on the neck or shoulder."
Dr Tinning then went on to opine:
"He has a mild capsulitis of his right shoulder which may have been associated with lifting and carrying of mail bags over the time of his employment."
Dr Tinning added at the conclusion of his report:
"With regard to the complaint to the right arm and shoulder, I consider that there is a 10% of whole person impairment due to the shoulder and one-half of this I would consider to be due to the nature and conditions of his employment".
We have some difficulty reconciling the last of Dr Tinning's statements with his earlier statement which was equivocal as to whether or not the mild capsulitis of the Applicant's right shoulder was associated with lifting and carrying mail bags. In our opinion the later comments by Dr Tinning must regarded as qualified by the earlier doubts as to any association at all with employment.
An X-ray report of the Applicant's right shoulder dated 29 August 2000 (Document T20) reads:
"Osteoarthritic changes the right acromio-clavicular joint were noted. No other abnormality was detected."
Exhibit R2 is report by Dr Ireland, Orthopaedic Surgeon, to the Respondent's solicitors. After taking a history of neck pain on the right side with an ache extending into the right shoulder in 1975 and continuing pain about the right neck shoulder and right arm Dr Ireland opined:
"I am not able to say the neck state has arisen as the result of any work factor, I am not able to say that his shoulder condition arises as the result of any work factor.
It is well accepted that in people as they age that there are degenerative wearing conditions about the shoulders, particularly in regard of the rotator cuff and that there can be fraying tearing wears of the musculo skeletal system."
In this matter the Applicant has claimed that he continued to suffer symptoms of a right shoulder injury from its onset in 1984. Despite the symptoms there has been no complaint of ongoing symptoms to any of the medical specialists who have examined him until the report of Dr Tinning in September 2000. As stated in that report Dr Tinning refers to "a relatively recent complaint to his right shoulder".
The Applicant's wife gave evidence in these proceedings. She stated that they had constructed the current house at Bundanoon (a rural area south Sydney) in 1990 and at that time they had both been "hale and hearty". She added in answers to the questions by the Tribunal that up until her husband had injury his back 1992 there had no problems with the maintenance of the property. In our view this evidence makes it more likely than not that the report of Dr Tinning is accurate namely that the Applicant's right shoulder problems were of relatively recent onset. We have already referred to the failure to mention to any of the previous examining specialists any ongoing problems with the right shoulder until the Applicant saw Dr Tinning in September 2000 nor is there any comment by the Applicant's general practitioner in his report of any shoulder problems. Whereas there is no doubt that the Applicant did suffer some right shoulder pain in 1984 it would appear that this resolved when he commenced to use a buggy instead of carrying a mail bag and that Dr Ireland is correcting his opinion that the Applicant suffers from a degenerative wearing condition not associated with work factor.
As was pointed out by the Full Court of the Federal Court in Treloar v Australian Telecommunications Commission 26 FCR 316 at 323 a causal condition must be established on the probabilities and not left in the area of possibility or conjecture. We regard the report of Dr Tinning as being conjecture and we are more convinced given the evidence of the Applicant's wife that Dr Ireland is correct in his opinion. We are, on all of the material before us, satisfied that the Applicant's right shoulder condition has not been caused or contributed to in any way by his employment with the Respondent.
Section 29 of the Safety, Rehabilitation and Compensation Act 1988 provides inter alia that where as a result of the injury to employee the employee obtains household services that he or she reasonably requires Comcare is liable to pay compensation of such amount per week as Comcare considers reasonable in the circumstances.
At the outset it will be noted that the household services must be obtained as a result of an injury to an employee. In this matter it is clear that in addition to his compensable back condition the Applicant's major disability is the osteoarthritis of both hips which at present has led to a hip replacement of one hip and he is currently waiting surgery for the replacement of the other hip.
The evidence before us was unclear as to just what services the Applicant required as a result of his compensable condition. Document T15 is a report by a registered nurse as to assistance required by the Applicant but does not descend into particularity as to the way in which the various injuries and diseases suffered by the Applicant restrict his activities. So far as the Applicant's evidence is concerned we considered that he tendered to overstate his disabilities. For example, he stated he could not take off a pull-over unassisted yet the video film of him clearly shows him doing exactly this. Other evidence as to his inability to stand on a ladder has to be treated with caution considering that he is a candidate for bilateral hip replacement. His inability to mow his lawn in one continuous action does not mean that he is incapable of mowing his lawn over an extended period. So far as any evidence of the Applicant's wife is concerned we find that she had tendency to embellish her evidence and we are not prepared of making any findings upon that material.
Whilst we are conscious of the restrictions imposed upon the Applicant by his various disabilities it is impossible to say just what restrictions are caused by his compensable back condition as opposed to restrictions imposed by his non-compensable conditions. In these circumstances we find that the claim pursuant to section 29 has not been made out.
For the reasons outlined above the decision under review is affirmed.
I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M D Allen, Senior Member; Dr P Lynch, Member; Mr S Webb, Member.
Signed: .....................................................................................
AssociateDate of Hearing 29 October 2002
Date of Decision 19 November 2002
Counsel for the Applicant Mr J Wilson
Solicitor for the Applicant Lamond Howard and Associates
Counsel for the Respondent Mr P Jones
Solicitor for the Respondent Australian Government Solicitor
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