PETER STOTT and AUSTRALIAN POSTAL CORPORATION
[2009] AATA 905
•25 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 905
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0891
GENERAL ADMINISTRATIVE DIVISION ) Re PETER STOTT Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date25 November 2009
PlaceSydney
Decision The decision under review is set aside and instead the Tribunal decides that the Australian Postal Corporation is liable for an aggravation of Mr Stott’s pre-existing carpometacarpal joint osteoarthritis.
................... [Sgd]...................
Ms N Bell
Senior Member
CATCHWORDS
COMPENSATION – pre-existing carpometacarpal joint osteoarthritis – whether aggravation – whether employment contributed to aggravation to a significant degree – decision under review set aside.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5B, 5B(2), 5B(3)
Commonwealth of Australia v Beattie (1981) 35 ALR 369
Tippett v Australian Postal Corporation (1998) 27 AAR 40
REASONS FOR DECISION
25 November 2009 Ms N Bell, Senior Member 1. Peter Stott has worked for Australia Post for 24 years. On 17 October 2007, while working on the Bar Code Sorter machine, Mr Stott experienced sharp pain in his left thumb region. He made a claim for compensation and liability was denied by Australia Post. There is no dispute that Mr Stott suffers from an underlying and pre-existing condition of arthritis in his left thumb region. The diagnosis of carpometacarpal joint osteoarthritis is agreed between Dr Hicks, Mr Stott’s treating Hand Surgeon, and Dr Stapleton, Hand Surgeon, qualified by Australia Post.
2. The central issue for me to consider is whether Mr Stott’s work at the Bar Code Sorter aggravated his underlying condition of osteoarthritis of the left thumb. Mr Stott says that an exacerbation of symptoms is sufficient to amount to a compensable aggravation for a period. Australia Post says that, on a background of arthritis, any gripping movement made by Mr Stott, whether at work or at home, would produce pain and pain on this basis does not amount to aggravation.
3. I note that the Safety, Rehabilitation and Compensation Act 1988 requires me, following amendments that inserted section 5B in April 2007, to consider whether any aggravation of Mr Stott’s disease was contributed to “to a significant degree” by his employment. The words “significant degree” are defined in subsection 5B(3) to mean “a degree that is substantially more than material”.
4. There are therefore two questions before me:
i) did Mr Stott suffer an aggravation of his left thumb arthritis?
ii) if so, was it contributed to, to a significant degree, by his employment?
did mr stott suffer an aggravation of his left thumb arthritis?
5. Mr Stott was not a good historian, but I have no reason to doubt his sincerity or truthfulness. His evidence was that prior to 17 October 2007, he developed pain in his left hand from the base of his thumb up to the tip of his index finger. He said he had a numb, tired pain in his thumb from June/July 2007, and also a shooting pain from his thumb to his elbow which came and went prior to 17 October. Mr Stott said he would notice the pain with any activities including activities at home. This was the reason for his initial visit to the doctor in June 2007 as he thought the pain may have been gout. He also said that the more he worked on the Bar Code Sorter, the more painful it became. He described the pain he had prior to 17 October as a “numbing” sort of pain.
6. Mr Stott said that on 17 October 2007, as he was gripping a bundle of letters with his left hand, he experienced excruciating pain in the two joints of the thumb that made him release his grip. He said it was a different kind of pain to the one he had previously experienced. As soon as he stopped gripping, the pain in his thumb diminished. He said he tried again a few times to grip a bundle of letters but each time he felt excruciating pain.
7. Dr Hicks’ evidence was that Mr Stott has arthritis of the carpometacarpal joint, which can be relieved by surgery or by steroid injections. He said that arthritis is very common in the community, regardless of occupational pursuits and is predominant in the 50s and over age bracket. He said that activity might aggravate symptoms but agreed it was not necessarily a forgone conclusion. Alternatively, activity might aggravate the pain of the condition or the condition itself. Dr Hicks said his notes say of Mr Stott’s work activity that he was gripping letters in his left hand.
8. Dr Stapleton’s evidence was that he took a history of a new and different pain on 17 October, which constituted aggravated symptoms and was followed by a gradual settling of those symptoms. Dr Stapleton said that activities at work did not and will not make Mr Stott’s arthritis worse, but that it is an act of kindness to allow him to avoid movements that produce pain.
9. Dr Stapleton said that a person with mild arthritis who performs an activity that produces pain will take less time to recover from that pain than will a person with severe arthritis. He placed Mr Stott at the moderate to advanced end of the scale. He said this is consistent with his opinion that Mr Stott will experience pain anywhere and not just at work.
10. I was referred by the parties to the Full Federal Court’s judgment in Commonwealth of Australia v Beattie (1981) 35 ALR 369, in which the Court held that pain brought on by work activity may constitute an aggravation of a pre-existing injury even though no pathological change takes place. The Court qualified this conclusion by saying that whether an aggravation has taken place will be a question of fact to be decided in each case. The Court said that not every case where a person has a pre-existing injury, carries out work and suffers pain will amount to an aggravation of the injury (and I note that the pre-existing condition here is not an “injury” for the purposes of the Act). The Court gave the example of a worker who fractures his leg and is unable to put it on the ground without pain as an instance that would not amount to aggravation. Rather, any incapacity for work arises in that case only because of the pre-existing injury.
11. I was also referred to the judgment of the Federal Court in Tippett v Australian Postal Corporation (1998) 27 AAR 40 which, in following Beattie, elaborated on the distinction illustrated by the above example and said:
This passage draws a very important and perhaps obvious distinction between the case of a worker who has a pre-existing injury that causes the worker to suffer pain whether or not the worker is at work and the case of a worker who has a pre-existing injury and it is the activities at work that cause the worker to suffer pain or to suffer pain more intensely. It is only in the latter case that it can be said that the worker has suffered an aggravation of his or her pre-existing injury.
12. There is no suggestion of any change in pathology here. Mr Stott’s evidence, confirmed in the history given to Dr Stapleton and which I accept, was that he had experienced the pain of his pre-existing left thumb arthritis for some time prior to 17 October 2007 when, on performing a gripping action at work, he experienced a new, different and incapacitating pain in his thumb that caused him to be unable to continue to grip.
13. The emergence of this new pain to my mind takes the incident on 17 October 2007 out of the range of pre-existing symptoms (the fractured leg example in Beattie) and into the realm of activities that cause him to suffer new or more intense pain - in other words, according to the analyses in Beattie and Tippett, aggravation. I am satisfied that on 17 October 2007 Mr Stott suffered an aggravation of his pre-existing condition.
14. I am not deterred from this conclusion by the possibility that Mr Stott might just as well have had this new pain emerge whilst engaged in the activity of gripping at home. There is no evidence of that. The evidence is that this pain emerged while he was performing his duties on the Bar Code Sorter.
15. This leads me to the next question I must answer.
did mr stott’s employment contribute to the aggravation to a significant degree?
16. The words “significant degree” are defined in subsection 5B(3) to mean “a degree that is substantially more than material”. Subsection 5B(2) lists a number of matters that I may take into account in determing whether the employment contributed to the aggravation to the degree required. They include duration of employment, nature of tasks, the predisposition of the employee to the aggravation, activities of the employee not related to the employment, and other matters affecting the employee’s health, but I am not limited, in my consideration, to these matters.
17. I note that there was no evidence before me of any activities, other than the activities of daily life, that may be of any consequence to Mr Stott’s condition.
18. Mr Stott described the work he performed on the Bar Code Sorter, an automated mail sorting device. He said he would be rostered for 4 hours, changing from the stacker, which involved gripping bundles of letters in rapid succession, to moving the trays, which did not, every 30 minutes. In busy periods he would work for longer than 4 hours on the Bar Code Sorter. The period leading up to 17 October 2007 had been a busy period and the mail centre had been short of staff. He said he would also do other activities in a day such as pushing bins, using hand pallet trucks, operating forklifts and using optical recognition equipment.
19. Mr Stott was referred to a document called “Safe Operating Procedures”, which sets out two methods for operating the Bar Code Sorter. The first method involves grasping a “comfortable rounded ‘C’ shaped” handful of letters from one of the 192 receptacles in the machine, using the other hand to change the position of the stacker arm for that receptacle and then placing the grasped mail in a tray. The second method involves the use of both hands to lift the mail out of the stacker and then place it in a tray. Mr Stott said that he generally used the first method, alternating right and left hands, and used the second method when there was more mail to be cleared.
20. Mr Stott said that when he was placed on restricted duties and stopped working at the machine, the pain in his thumb diminished over approximately 12 months. He said that the steroid injection he had from Dr Hicks helped him a great deal.
21. I note that the clinical notes of Mr Stott’s treating general practitioner, Dr Kelly, document an improvement of symptoms when work was modified, aggravation when sorting duties recommenced, and an eventual gradual reintroduction to sorting duties for short periods as the symptoms improved over time.
22. I also note that the existence of a “Safe Operating Procedures” document in respect of the Bar Code Sorter suggests an anticipation of safety issues arising out of work on this machine.
23. It may be that Mr Stott’s new pain could have emerged while he was engaged in any activity that required a repeated gripping movement. It may be that other movement, repetitive or not, might have given rise to the same pain. It may be that such movement could have taken place in his employment or outside it. However, the evidence before me is of the onset of this new pain when Mr Stott was performing repetitive gripping tasks on the Bar Code Sorter – not at some other time doing some other activity. Rather, the evidence is of the new pain beginning when Mr Stott was performing an activity that was considered by the employer to give rise to a need for “Safe Operating Procedures” to be issued to employees. I also note that when Mr Stott ceased to do this work for a period, the new pain in his thumb settled. There is no evidence before me of any other activity that he was undertaking at the time of the emergence of the new pain, nor of any activity that he ceased for a period prior to the pain improving.
24. There is nothing in the medical evidence that contradicts Mr Stott’s evidence that the new pain came on when he performed the gripping motion when working on the Bar Code Sorter. Indeed, the evidence of both Dr Stapleton and Dr Hicks was that this movement could give rise to pain in a person with Mr Stott’s condition. I also note that Dr Stapleton said that the length of time it would take for the pain from such a movement to improve would depend on the severity of the underlying condition, which, for Mr Stott, he characterised as between moderate and advanced.
25. I am satisfied, for these reasons, that Mr Stott’s employment contributed to the aggravation of his carpometacarpal joint osteoarthritis to a significant degree, that is, to a degree that is substantially more than material. It does not matter that, in theory, some other non-work related activity, had it been undertaken, might also have at some later time significantly contributed to an aggravation. That remains a theory, whereas there is evidence before me of the incident at work on 17 October 2007.
26. I note that Dr Kelly’s clinical notes indicate a marked reduction in symptoms by June 2008 and that by then Mr Stott had returned to working on the Bar Code Sorter for short periods. There was some uncertainty about when work restrictions were finally removed, but it appears that Mr Stott is now performing full duties.
decision
27. The decision under review is set aside and instead the Tribunal decides that the Australian Postal Corporation is liable for an aggravation of Mr Stott’s pre-existing carpometacarpal joint osteoarthritis.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ..........................[Sgd].........................
Associate: Jennifer WongDates of Hearing 21-22 July 2009
Date of Decision 25 November 2009
Counsel for the Applicant Mr M Vincent
Solicitor for the Applicant Bale Boshev Lawyers
Counsel for the Respondent Mr M Gollan
Solicitor for the Respondent Australian Postal Corporation Litigation Section
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