Pike and Australian Postal Corporation
[2006] AATA 418
•12 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 418
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/722
GENERAL ADMINISTRATIVE DIVISION ) N2005/953
N2005/1198
N2005/1301Re DAVID PIKE Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander Date12 May 2006
PlaceSydney
Decision The Tribunal makes the following decisions in the proceedings.
N2005/722
The decision under review is affirmed in relation to the incident of 15 August 2004 but varied in relation to the 10 March 2005 injury such that that Mr Pike is entitled to payment for compensation pursuant to s 16 and s 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) in respect of this injury to his right wrist and thumb until 31 August 2005.
N2005/953
The decision under review is affirmed.
N2005/1198
The decision under review is affirmed.
N2005/1301
The decision under review is set aside and substituted therefore is the decision that the Respondent is liable under s 14 of the Act to pay compensation to Mr Pike for injury to his right wrist and right thumb arising from an injury on 17 June 2005.
Costs
The parties have fourteen days in which to contact Senior Member Kelly’s Associate to fix a date for an argument on costs.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – incapacity and medical expenses claims for triggering of left index finger, and right upper limbs, hands and fingers – pre-existing condition of Type 1 Diabetes – left index finger condition has resolved therefore no present liability found – liability found for medical expenses and incapacity for right upper limbs, hands and fingers – condition resolved after surgery – decision varied.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 24 and 27
REASONS FOR DECISION
12 May 2006 Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander Introduction
1. Mr Pike, who is 50 years of age, has been employed by the Australian Postal Corporation (“APC”) for 15 years. He has suffered from Diabetes Type 1 since he was 15 years old. There are a number of proceedings for compensation before us pursuant to the Safety, Rehabilitation and Compensation Act 1988 (“the Act”). All the proceedings were commenced in 2005. For convenience, we refer to each proceeding by the number prefixed by “P”, e.g. “P1198”. Following is a summary of the alleged injuries and the proceedings which have arisen.
Incidents the subject of Current Proceedings
2. About 12 December 2003, Mr Pike stated that an injury occurred at work. He was grabbing letters from a Bar Code Sorter machine (“BCS”) when he experienced locking of his left index finger. He completed the claim form on 12 December 2003 (P1198 T2).
3. On 15 August 2004, when he was travelling to work, the front left hand wheel fell off the vehicle. He tried to steer the car to avoid hitting a truck and his right wrist hit the steering wheel. He lodged his claim for compensation on 16 August 2004 (P722 T74).
4. On 10 March 2005 Mr Pike suffered an injury to his “right thumb, wrist, elbow”. He described how he was repetitively gripping small letters to clear stackers. The claim for compensation was lodged on 4 April 2005 (P722 T94).
5. On 17 June 2005, Mr Pike said that another injury occurred which resulted in severe pain in his right thumb and wrist area. This injury occurred while he was clearing a machine. He grabbed the mail with his left hand, the letters slipped, and he tried to stop them falling using his right hand (P1301 T4).
Proceedings
N2005/722
6. In proceedings N2005/722, the decision under review is the decision made on 25 May 2005. That decision affirmed the decision of 13 April 2005 (P722 T100) that as from 14 April 2005 Mr Pike had no current entitlement pursuant to sections 16 and 19 of the Act for any condition affecting the right upper limbs/ hands/ fingers resulting from the injuries suffered on 15 August 2004.
7. The decision under review also revoked the decision dated 13 April 2005 to the extent it related to the 10 March 2005 injury and determined that Mr Pike was entitled to payment of compensation pursuant section 16 of the Act in respect of the “right thumb extensor tendonitis” until 10 May 2005. It did not revoke the decision that there was no liability for incapacity in respect of that injury.
N2005/953
8. The decision under review is the decision dated 21 July 2005 (P953 T8) which affirmed the decision dated 14 July 2005. The effect of the reviewable decision is that Mr Pike did not have any current entitlement to compensation for a permanent impairment pursuant to ss 24 and 27 of the Act for a condition affecting both hands upper limbs arising from injuries on 15 August 2004, 10 March 2005 and 12 December 2003 (P953 T6).
9. During the hearing, Mr Pike’s representatives withdrew the application for permanent impairment. The appropriate order agreed by the parties was that the decision under review should be affirmed. The Tribunal agrees.
10. Accordingly the decision under review in matter N2005/953 is affirmed.
N2005/1198
11. The decision under review is the decision made on 15 September 2005 which affirmed the decision dated 19 August 2005 (P1198 T56). The effect of the reviewable decision is that there is no present liability to pay compensation pursuant to sections 16 and 19 of the Act for the “left triggering index finger” injury which was sustained on about 12 December 2003 (P1198 T54). Payments ceased from 19 August 2005.
N2005/1301
12. The decision under review is the decision dated 23 September 2005 which affirms the decision dated 13 September 2005 (P1301 T26). The effect of the reviewable decision is that APC was not liable under section 14 of the Act to pay compensation to Mr Pike for any injury to his right thumb and wrist area arising from an injury on 17 June 2005 injury (P1301 T24).
Issues
13. The issues before the Tribunal are:
· Whether as a consequence of the incident on 15 August 2004 Mr Pike is entitled to any incapacity payments or medical expenses from 14 April 2005;
· Whether Mr Pike is entitled to payments for incapacity from 13 April 2005 in relation to the incident on 10 March 2005;
· Whether Mr Pike is entitled to payments for medical expenses from 10 May 2005 in relation to the incident that occurred on 10 March 2005;
· Whether Mr Pike is entitled to incapacity payments and medical expenses arising from the incident on about 12 December 2003 from 19 August 2005;
· Whether Mr Pike suffered an injury to his right thumb and wrist area in an incident that occurred on 17 June 2005,, and whether APC is liable to pay compensation pursuant to section 14 of the Act.
Previous Claims/ Determinations and Medical Treatment for Hands/ Fingers
14. The following is not in dispute. Mr Pike has had previous claims against APC for his hands and fingers. He had a release of his left middle finger in February 1995 after liability was accepted by APC. In August 1996, Mr Pike underwent release of the right middle finger following a work incident for which APC accepted liability. In November 1998, Mr Pike had a release of his right trigger ring finger after APC accepted liability. In July of 2000 he had a release of his left trigger ring finger performed after APC accepted liability.
Evidence of Mr Pike
15. Mr Pike gave the following evidence. He has hereditary Diabetes Type 1. As a consequence he has had problems with his eyes, and has had laser treatment. In October and November of 2003 he suffered from a degree of poor diabetic control. At that time he was under a lot of pressure as his brother and sister would not help him with his elderly mother, and he was having marital problems. He was taking antidepressants at that time.
16. Mr Pike gave evidence about the incident that occurred around 12 December 2003 where he injured his left index finger. He had surgery on the finger, but he was not sure by whom. He has had no treatment for that finger since that surgery. His general practitioner is Dr Harvey and the APC practitioner that he visits is Dr Beiers. He could not recall the last time he saw either of these men about his left index finger.
17. On 15 August 2004, Mr Pike was driving to work when he injured his right wrist trying to grip a steering wheel while trying to force the car around a corner after a front wheel fell off. He suffered sharp pain in his right wrist and below his right thumb. He contacted APC that morning and said that he would be unavailable for work as he had to wait for a tow truck. The following morning he went to saw Dr Beiers, and received cortisone injections from him. After this incident he stated that the pain “settled down really good after two months physio and injections”.
18. On 10 March 2005, Mr Pike hurt his right wrist again using a BCS machine. There was a sharp pain in his right wrist, thumb area, and he had trouble moving it. He then saw Dr Beiers and received a cortisone injection, but Mr Pike felt that it did not work. Dr Beiers advised him to put something around his wrist and wear it for a couple of times a day. He also provided a cream with cortisone which had an anaesthetic effect, but Mr Pike felt that he gained no relief.
19. In June of 2005 he was still having trouble with his right hand and a lot of trouble with the wrist and thumb area of the right hand which would ache if he used it too much. He received medical treatment from Dr Beiers. On 17 June 2005 when some letters fell out of a machine, he reached out with his right arm and hand to catch them, and he felt a sharp pain at the base of his thumb and into his wrist. The pain was in the same area of his right hand as after the 10 March 2005 incident. He had treatment for this injury from Dr Beiers and an operation was performed by Dr Hicks on 21 July 2005. Mr Pike had to pay for this surgery and for the visits to Dr Beiers. He claimed the treatment from Medicare.
20. Mr Pike stated that every release operation that he has had performed has been successful, and ended the pain in his hand and fingers. His hands now are fine.
21. Mr Pike did take time off work for the injuries he sustained. He said that on 14 April 2005 that he was classified as a “non-stat work related injury”, that is, an injury that is not related to his employment by APC. Later in cross examination he was unsure when he was told this news as it could have been May 2005 or 15 June 2005. He was told that he had three months to get the injury fixed and then he would have to carry on and perform his duties. He was very upset with this news and went off on stress leave.
22. From 17 June 2005 he took long service leave as his stress levels were too high to go to work. He had a lump forming on his wrist and had to have the surgery performed by Dr Hicks. The high stress levels started to affect his diabetes. He returned to work 10 days after surgery and was on light duties for a month and then he gradually built up to normal duties. He received no assistance in rehabilitation from APC. He did see Dr Beiers who wrote out certificates that allowed him to go back to work with restricted duties for 1 month.
23. At work currently, both hands are good and there is no real pressure. Mr Pike’s work with APC involves repetitive activities with his hands. When on the BCS machine, his hands do ache with the constant C-gripping and he stops after 55 minutes and performs some stretching exercises. If his hands ache a lot, he gets someone to replace him and he does the running necessary when working on that machine. He states that he gets an ache which measures 5 on a scale out of 10, after half an hour on the BCS, but he tries to stay on the machine as long as possible. He is only on that machine 75% of the time. His other duties include lifting parcels from ULDs (“Unitary Load Devices”) , and placing them into other ULDs. He has been carrying out normal duties since August 2005 and does not avoid doing anything.
Medical Evidence
Dr Meads
24. On 19 December 2003, Dr Meads, a hand and upper limb surgeon, prepared a report (P722 T56). He noted Mr Pike’s history of insulin dependent diabetes, hypertension and hypercholesterolaemia. Mr Pike presented with a triggering of his left index finger that had been present for a week. He noted that Mr Pike had previously had a release of four other digits. He discussed the options with Mr Pike and determined to carry out an operation, which was done on 2 April 2004 (P722 T64). Two weeks later Dr Meads reviewed Mr Pike and stated that he was progressing well (P722 T66).
25. On 5 May 2004, Dr Meads reviewed Mr Pike and stated that he had no further triggering of the left index finger although there was some firmness remaining within the scar (P722 T67). On 4 June 2004, he noted that Mr Pike still had some thickening of the scarring in his left index finger, but had had no further triggering, and that there had been no more arrangements made to follow his progress (P722 T70). On 16 July 2004 after further review he noted that the tightness in the scar was resolving and that he had not made any arrangements “to follow him up” (P722 T72).
Dr Honner
26. Dr Honner provided a report and gave oral evidence by telephone. In summary his opinion is that Mr Pike’s pain during the incidents on 17 June 2005 and 10 March 2005 was caused by De Quervain’s disease. These incidents were not related to what had happened in August 2004.
27. The causes of De Quervain’s disease were diabetes and underlying anatomical variations. In Dr Honner’s opinion, De Quervain’s disease would have come on regardless of Mr Pike’s work activities. The incidents of March and June 2005 may have been the onset of symptoms but that they did not cause De Quervain’s disease. Mr Pike may have been affected by the incidents until the end of his shift. In Dr Honner’s opinion, the constant repetition could make the symptoms more uncomfortable and work activity could have caused pain, but Mr Pike would have developed symptoms anyway. The symptoms could be aggravated by work.
28. After surgical release Dr Honner believed that there would be no on-going symptoms and that any on-going aches would be related to degenerative arthritic change in the wrist.
29. In his report dated 28 September 2005, Dr Honner said that the occurrence of triggering of the fingers on both hands is due to “underlying constitutional conditions, mainly his diabetic state” and he does not believe that it is related to his work.
30. He described the incident on 15 August 2004, when Mr Pike was driving a motor vehicle, and stated that he returned to normal duties two months after the accident. His diagnosis for that injury was “a soft tissue injury to the right thumb” which occurred in the motor vehicle accident. This he believes is supported by Professor Ghabrial who found no evidence of De Quervain’s in February 2005.
Professor Ghabrial
31. On 9 February 2005, Professor Ghabrial prepared a report. (P722 T90). He took a history that symptoms began developing in Mr Pike’s hands in 1993. In February 2005, Mr Pike had scars consistent with the earlier surgery and had some loss of hand grip which was worse on the right hand side, and noted that Mr Pike is left handed.
32. His opinion was that the injury in August 2004 was a severe soft tissue injury which had settled down. However due to the previous injuries which were mentioned in his earlier report he believed that Mr Pike’s clinical features and residual disabilities are the result of his work related injuries.
Dr Hicks
33. On 27 June 2005, Dr Hicks, orthopaedic surgeon, prepared a report (P1301 T8). He noted that he had released Mr Pike’s left ring trigger finger back in 2000. On the present occasion, he found a nodule over the radial styloid in Mr Pike’s right wrist. His opinion was that Mr Pike’s wrist and thumb symptoms are due to De Quervain’s stenosing tendovaginitis. He considered that the De Quervain’s disease had been brought on by the incident in August 2004 and aggravated by the episodes in March and June 2005. He and Mr Pike agreed that he perform surgery on the right wrist for the release of De Quervain’s disease.
34. After the surgery on 21 July 2005, Dr Hicks prepared a report dated 28 July 2005 (P1301 T17). He had excised a ganglion of the tendon sheath. There was no significant tenosynovitis. Post-operatively Mr Pike was progressing well. He placed him on restricted duties from 1 August 2005 until the end of the month.
35. In a further report dated 25 August 2005 (P1301 T22), Dr Hicks said that the nodule over the right border of Mr Pike’s wrist is commonly associated with De Quervain’s disease. He said that there is no direct association with diabetes. There was no comment about restricted duties.
Dr Fowler
36. Dr Fowler is an endocrinologist. He has treated Mr Pike for many years and sees him on an irregular basis. He described Mr Pike’s diabetic control as reasonable and given the long duration of his diabetes, Mr Pike has done very well. He acknowledged that in October 2003 he placed Mr Pike in an empowerment course of training where a group of 10 people can discuss their diabetes and can be motivated in their application of good practices.
37. In Dr Fowler’s opinion diabetes is associated with trigger finger and De Quervain’s tenosynovitis. There is an increased incidence of those conditions in patients who have diabetes, but diabetes does not have a causative role, as these conditions exist outside diabetic patients. He described diabetes as an aggravating factor, but said that there is no study to define what causes trigger finger, just that it is more commonly found in people with diabetes.
Dr Whittaker
38. On 22 January 2004, Dr Whittaker, consultant rheumatologist, prepared a medico-legal report (P722 T60) regarding the incident which took place on about 12 December 2003. His summary and assessment were that Mr Pike had “diabetic hand syndrome” but that his duties as a mail officer were a minor contributing factor, with his diabetes being a major underlying causative condition. His work duties had heightened the symptoms that were indicative of the underlying condition. He considered him fit to work and that the condition would resolve with surgery.
Consideration
39. We find that long standing diabetes, such as Mr Pike has, is associated with an increased incidence of abnormalities of the tendons of the hand. Those abnormalities develop over an extended period of time and may manifest acutely in a number of ways including “trigger finger” and tendonitis of the thumb extensor tendons (De Quervain’s tendonitis). This was supported by Dr Honner and Dr Fowler. We are satisfied on the evidence of those doctors and Dr Whittaker, that Mr Pike has tendon abnormalities in his hands as a consequence of his long standing diabetes and several acute manifestations have occurred during the course of his work in the form of trigger finger in both hands and tendonitis of the right thumb.
40. There is no evidence that he has suffered such problems with his hands outside his work environment. In our opinion, the incidents have occurred at work because of the repetitive use of his hands in the course of his duties. His work has caused the acute manifestations by aggravating an underlying condition. Dr Honner who gave evidence for the APC accepted that repetitive hand activities and diabetes were two factors that have a causal relationship with trigger finger and tendonitis of the thumb.
41. We are also satisfied on the evidence that in every case surgery has relieved Mr Pike’s symptoms and his hand function has returned to its previous normal state following an appropriate recovery period.
42. Following the incident in March 2005 Mr Pike underwent conservative treatment with injection of steroid and physiotherapy. This treatment did not cure the problem and further exacerbation of symptoms occurred on 17 June 2005. Shortly afterwards, an operation was recommended and subsequently performed. The result was relief of the acute condition. We find that the effects of the March and June incidents had ceased on 31 August 2005. Dr Hicks mentioned no restrictions in his report of 25 August 2005, having previously placed Mr Pike on restricted duties until the end of that month. Mr Pike said that he had returned to full duties after one month and that surgery had returned his hand to normal state. These injuries were to his right thumb and wrist.
43. In our opinion, the injuries in March and June 2005 arose in the course of Mr Pike’s employment and APC is liable to pay compensation under s 16 and 19 of the Act up to and including the 31 August 2005. The March injury did not resolve completely until after the exacerbation in June which was followed by successful surgery.
44. With regard to the incident on 15 August 2004, we accept the evidence of Dr Honner that it was a soft tissue injury that resolved in two months and this is supported by the evidence of Mr Pike and Professor Ghabrial. The history given to Dr Hicks was not reliable on this issue. We find that this injury had resolved by 14 April 2005 when APC made a determination that it had no present liability pursuant to sections 16 and 19 in relation to that injury.
45. We accept the evidence of Dr Meads who was Mr Pike’s treating surgeon in relation to his left triggering index finger on about 12 December 2003. On 16 July 2004 Dr Meads noted that the tightness in the scar was resolving and that he had not made any arrangements to follow his progress. This is also consistent with the opinion of Dr Whittaker. Mr Pike’s hands are now fine and he has said that surgery fixes the problem. From this evidence, the Tribunal determines that the effects of the left triggering index finger had ceased by 19 August 2005 when APC determined that it had no present liability to pay compensation pursuant to sections 16 and 19 of the Act for the left triggering index finger.
Conclusion
46. Accordingly, the Tribunal makes the following decisions in the proceedings.
N2005/722
47. The decision under review is affirmed in relation to the incident of 15 August 2004 but varied in relation to the 10 March 2005 injury such that that Mr Pike is entitled to payment for compensation pursuant to s 16 and s 19 of the Act in respect of this injury to his right wrist and thumb until 31 August 2005.
N2005/953
48. The decision under review is affirmed. (This application was the permanent impairment claim.)
N2005/1198
49. The decision under review is affirmed.
N2005/1301
50. The decision under review is set aside and substituted therefore is the decision that APC is liable under s 14 of the Act to pay compensation to Mr Pike for injury to his right wrist and right thumb arising from an injury on 17 June 2005.
Costs
51. The parties have fourteen days in which to contact Senior Member Kelly’s Associate to fix a date for an argument on costs.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Member, Dr Ion Alexander
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 4-5 April 2006
Date of Decision 12 May 2006
Counsel for the Applicant Mr M. Vincent
Solicitor for the Applicant Bale Boshev and Associates
Counsel for the Respondent Mr. G. Johnson
Solicitor for the Respondent Graham Jones Lawyers
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