Ray Maybury and Australian Postal Corporation

[2016] AATA 994

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)         No: 2015/6299

General Division  )

Re: Ray Maybury
Applicant

And: Australian Postal Corporation
Respondent

DIRECTION

TRIBUNAL:              Dr L Bygrave, Member

DATE:   25 January 2017

PLACE:                    Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that the sentence “This aggravation culminated in Mr Maybury lodging a claim for ‘torn supraspinatus + long head biceps tendon’ on 8 May 2015.” is inserted at the end of paragraph 50.

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Dr L Bygrave, Member

Maybury and Australian Postal Corporation (Compensation) [2016] AATA 994 (6 December 2016)

Division	GENERAL DIVISION
File Number(s)	2015/6299
Re	Ray Maybury
APPLICANT
And	Australian Postal Corporation
RESPONDENT

Decision

Tribunal	Dr L Bygrave, Member
Date	6 December 2016
Place	Sydney

The Tribunal sets aside the reviewable determination dated 18 August 2015 and, in substitution, decides that Ray Maybury is entitled to compensation under section 14 of the Safety Rehabilitation and Compensation Act 1988 for his ‘torn supraspinatus + long head biceps tendon’ injury suffered on 8 May 2015.

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Dr L Bygrave, Member

Catchwords

COMPENSATION – injury or disease – ailment or aggravation of ailment – contributed to by employment to a significant degree – decision set aside and a decision made in substitution

Legislation

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Cases

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Commonwealth v Beattie (1981) 35 ALR 369

Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626

Secondary Materials

Sher, Jerry S, John W Uribe, Alejandro Posada, Brian J Murphy and Michael B Zlatkin, ‘Abnormal findings on magnetic resonance images of asymptomatic shoulders’ (1995) 77 Journal of Bone and Joint Surgery 10

Svendsen, Susanne Wulff, John Gelineck, Svend Erik Mathiassen, Jens Peter Bonde, Lars Henrik Frich, Kristian Stengaard-Pedersen and Niels Egund, ‘Work Above Shoulder Level and Degenerative Alterations of the Rotator Cuff Tendons: A Magnetic Resonance Imaging Study’ (2004) 50(10) Arthritis & Rheumatism 3314

REASONS FOR DECISION

Dr L Bygrave, Member

6 December 2016

introduction

1. The applicant, Mr Ray Maybury, was born in 1954. Mr Maybury commenced employment in 2005 at Australia Post as a part-time Postal Delivery Officer and Night Sorter.

2. On 14 May 2015, Mr Maybury lodged a Claim for Rehabilitation and Compensation for a ‘torn supraspinatus + long head biceps tendon’ injury, which he claimed he suffered on 8 May 2015 as a result of his employment at Australia Post.

3. In a determination dated 18 August 2015, Australia Post affirmed a determination dated 27 May 2015 refusing Mr Maybury’s claim for compensation in respect of this injury.

4. On 22 September 2015, Mr Maybury applied to the Administrative Appeals Tribunal for a review of this determination.

5. The application was heard in Sydney on 3 and 4 November 2016. Mr Maybury attended the hearing in person and had legal representation.

   relevant legislation and issues

6. Mr Maybury’s application relates to a claim for acceptance of liability to pay compensation for an ‘injury’ under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Subsection 14(1) of the Act provides:

   (1) Subject to this Part, Comcare [or in this application, Australia Post] is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

7. ‘Injury’ is defined in s 5A(1) of the Act. The relevant part of the definition reads:

   injury means:

   (a) a disease suffered by an employee; …

8. ‘Disease’ is defined in s 5B of the Act:

   (1)  In this Act:

   disease means:

   (a) an ailment suffered by an employee; or

   (b) an aggravation of such an ailment;

   that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

   (2)  In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:

   (a)  the duration of the employment;

   (b)  the nature of, and particular tasks involved in, the employment;

   (c)  any predisposition of the employee to the ailment or aggravation;

   (d)  any activities of the employee not related to the employment;

   (e)  any other matters affecting the employee’s health.

   (3)  In this Act:

   significant degree means a degree that is substantially more than material.

9. ‘Aggravation’ and ‘ailment’ are defined in s 4(1) as:

   aggravation includes acceleration or recurrence.

   ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).

10. The determinative issues before the Tribunal are whether:

    (a)Mr Maybury’s condition is an ‘injury’ as defined in s 5A of the Act and/or a ‘disease’ as defined in s 5B of the Act; and

    (b)Mr Maybury is entitled to compensation under s 14 of the Act for his ‘torn supraspinatus + long head biceps tendon’.

    evidence

    Evidence of Mr Maybury     

11. Mr Maybury provided written statements dated 14 May 2015, 5 June 2015 and 24 June 2016, and gave oral evidence at the hearing.

12. Mr Maybury described his usual duties as a Postal Delivery Officer and Night Sorter sorting mail into slots on shelves. On average, he slotted approximately 5,000 letters over a five hour shift and did an average of three additional hours of slotting and bagging mail daily. He told the Tribunal that placing mail into slots comprised about 90 percent of his time. This process involved holding mail in a c-cup grip in his left hand and placing individual letters into slots on shelves on V-sort frames with his right hand.

13. Mr Maybury’s evidence is that he began experiencing pain in his right shoulder about mid-2014 and he attributed this to plastic strips being placed too high (that is, not level with the base of the shelf) on some shelves of the V-sort frames. In his statement on 14 May 2015, he stated:

    The plastic strips being in the wrong position resulted in extra resistance on almost every letter inserted. This is evidenced by the grooves worn in every single one that I have complained about.[1]

    [1] Exhibit T1 at T8.

14. At the Tribunal hearing, Australia Post and Mr Maybury provided used and un-used examples of the plastic strips.[2] Mr Maybury said that he adjusted the five shelves on the V-sort frames to be between his waist and shoulder height (approximately one metre) to sort mail. He acknowledged the level of resistance from plastic strips placed too high on shelves varied depending on the height of the shelf; higher shelves caused greater resistance due to the upward movement and lower shelves created less resistance due to the downward movement when placing the mail on the shelves.

    [2] Exhibits A4, R2 and R3.

15. During the Tribunal hearing, Mr Maybury observed that in the period from mid-2014 to May 2015 approximately 20 percent of shelves had plastic strips placed too high. He said that he reported his concerns regarding the height of the plastic strips on the shelves to his supervisor ‘many times’. He often moved the plastic strips himself but was told by his supervisor to stop moving the strips on 8 May 2015. He conceded that the reason Australia Post decided not to move the plastic strips on the shelves was because he was the only mail sorter who complained about the height of the plastic strips.

16. On 8 May 2015, an Incident Form was completed by Mr Maybury’s supervisor, which reported that he ‘[f]elt pain in Rt shoulder while sequencing’.[3]

    [3] Exhibit T1 at T4.

17. Mr Maybury also visited Dr Wee-Liat Tan, his General Practitioner for over 30 years, on 8 May 2015. Dr Tan’s medical notes recorded Mr Maybury having a ‘sore (R) shoulder + elbow due to repeated sorting of letters … worse recently’.[4] Mr Maybury confirmed at the Tribunal hearing that he had visited Dr Tan at least once a month in the period March 2014 to January 2015 and March to May 2015, and had told Dr Tan about pain in his right shoulder, although this was not recorded in Dr Tan’s medical notes.

    [4] Exhibit R7.

18. In his written statement dated 24 June 2016, Mr Maybury described returning to work at Australia Post as follows:

    I returned to work on 7 July 2015 and was allocated to slot letters. The strips were too high for my shoulder and began to cause me further pain. I reported that the strips were too high again, though they were not moved. At 5:40am I ceased working and went home as I was in too much pain due to the strips being too high.

    I returned to work on 13 June [July] 2015 to slotting duties. On 15 July 2015 I was put on the unaddressed mail service merging duties until 6 August 2015 where I was told to move a large amount of unaddressed mail into shelves. The exact amount of mail moved that night was 1100kgs.

    Due to the pain I was experiencing in carrying out these duties, I had 7 August 2015 off work.

    I continued work until 31 August 2015, when I was sent home by [my supervisor] as there was no work for me.

    Between 9 November 2015 and 29 February 2016, I took annual recreation leave and long service leave as l felt it was easier than battling at work every day with management and constantly being in pain from the strips remaining too high and in attempting to carry out my duties regardless.

    …

    Some of the duties I have been asked to do, including sorting of mail with the multiple v-sort frames and plastic strips, involve the same work that caused my injury. Due to the repetitive nature and compounding of weight of articles required to be moved, this has caused me to have time off as carrying out these duties continues to cause me pain.[5]

    [5] Exhibit A3.

19. Mr Maybury spoke in general terms and timeframes when giving evidence to the Tribunal. He was unable to provide a concise timeframe for the onset of the pain in his right shoulder; he acknowledged that his shoulder pain did not result from a defined incident but increased over a period of time. In his view, his shoulder pain was due to the repetitive nature of slotting mail and the increased resistance caused when the plastic strips were not level with shelves on the V-sort frames. He thought the pain in his shoulder must be attributable to the positioning of the plastic strips because it was the ‘only thing that changed in the workplace’.

20. Mr Maybury said that he told his supervisor and wrote notes ‘many times’ about his concerns regarding the height of the plastic strips. I observe, however, that the only written records provided to the Tribunal by Mr Maybury’s legal representative were Monthly ADAM and Vsort Equipment Update Forms dated 13 May 2015 and 14 July 2015, which described shelf numbers on V-sort frames and noted ‘plastic strips too high’.[6] These forms were signed by Mr Maybury on dates when, according to Mr Maybury’s leave calendar,[7] he was on leave from Australia Post. Mr Maybury was unable to explain to the Tribunal why these forms were completed on days he was not present at work.

    [6] Exhibit A2.

    [7] Exhibit R5.

21. Australia Post’s legal representative did not refute Mr Maybury’s evidence about the proportion of shelves that had plastic strips positioned higher than the shelf or question the number of hours he worked and the repetitive nature of slotting mail.

    Medical evidence

    Evidence of Dr Wee-Liat Tan (General Practitioner)

22. Dr Tan completed and signed Mr Maybury’s Workcover NSW – certificate of capacity reports dated 12 May 2015 and 19 May 2015.

23. Dr Tan’s medical notes in relation to Mr Maybury were provided to the Tribunal.[8] These notes reveal that Mr Maybury reported a ‘sore shoulder’ in 2005 and 2013, and underwent an operation on his back in 2011.

    [8] Exhibit R7.

24. Following a note on 24 March 2014 recording ‘pain down (R) lat thigh - … Also (L) side…’, Dr Tan wrote ‘pain management’, ‘pain relief’ or ‘unwell’ for many of Mr Maybury’s appointments between March 2014 and May 2015. I am not able to ascertain whether these notes referred to Mr Maybury’s back condition, right shoulder condition or another condition that required pain management and relief.

    Evidence of Dr Desmond Bokor (Shoulder and Elbow Surgeon)

25. In a report dated 18 May 2015, Dr Bokor noted that Mr Maybury:

    …presents with right shoulder pain after getting gradual increasing discomfort over the last year related to his work. The pain is anterolateral based, it is occasionally present at night and is aggravated with elevation, rotation and use of his arm. …

    [His] clinical features certainly suggest he may have a small underlying rotator cuff tear on the right side. He probably already has a pre-existing left rotator cuff tear from previously [emphasis in original].[9]

    [9] Exhibit A5.

26. A further report by Dr Bokor on 15 June 2015 confirmed that a MRI scan ‘shows a full thickness tear of the supraspinatus measuring about 2.5 cm – 3 cm with some thinning of leading edge of the tendon but no major muscle atrophy and wasting.’ Dr Bokor noted that Mr Maybury has ‘some degenerative change in his shoulder joint’ but attributed his employment sorting mail and ‘working with his arm repetitively at shoulder level over 10 years’ as a ‘substantial contributor to his problem’.[10]

    [10] Exhibit T1 at T17.

27. Dr Bokor stated on 15 June 2015 that Mr Maybury did not require surgery but needed ‘long term modification of his job so he does not do any repetitive overhead or shoulder height work.’

    Evidence of Dr Roger Pillemer (Orthopaedic Surgeon)

28. Dr Pillemer provided a written report dated 17 March 2016,[11] which stated Mr Maybury had:

    … evidence of underlying pathology in his right shoulder with rotator cuff tearing and some muscle atrophy, as well as degenerative changes in the AC joint, and rupture of the long head of biceps which is bilateral.

    He does however have a full range of movement at the present time and symptoms as noted are not that bad.

    [11] Exhibit A1.

29. Dr Pillemer opined that Mr Maybury’s condition was due to degenerative problems of ‘both shoulder joints’ and stated:

    I would certainly accept that the nature and conditions of his work have not caused the degenerative change but would need to be regarded as the main contributing factor to the aggravation and development of his right shoulder symptoms. This is evidenced by the fact that as soon as he stops doing the sorting at a higher level, the symptoms tend to settle down, and he does not have the same symptoms on the left side, which does not do any sorting [emphasis added].

30. Dr Pillemer affirmed Associate Professor McGill’s opinion, discussed below, that Mr Maybury’s rotator cuff tear was not caused by his employment at Australia Post, but reiterated that the:

    underlying degenerative condition would certainly have been aggravated by his work, as noted by the fact that his symptoms only really occur when he does the sorting work at shoulder height, and then settle down when he stops doing this work [emphasis added].

    Evidence of Associate Professor Neil McGill (Consultant Rheumatologist)

31. Associate Professor McGill provided reports dated 12 August 2015 and 8 September 2016. In his report dated 12 August 2015, Associate Professor McGill diagnosed Mr Maybury with ‘moderate degenerative disease in the right shoulder including the AC and glenohumeral joints and the rotator cuff’; and noted that symptoms in his shoulder settled when he ceased sorting mail.[12]

    [12] Exhibit T1 at T24.

32. Associate Professor McGill considered Mr Maybury’s medical history in view of research studies and concluded:

    … the likely effect of his V sort duties was to increase the level of shoulder discomfort at the time he was performing those duties and for a few weeks thereafter. The degree of arm elevation which he demonstrated has not been shown to increase the prevalence of rotator cuff tears or other degenerative changes in the shoulder but nevertheless I think it would have had the potential to cause increased discomfort at the time of doing the activity and for a short period thereafter. I think the current state of his shoulders is the same as would have been the case regardless of his work duties with Australia Post. His shoulder examinations today were essentially symmetrical and he rated the level of discomfort when performing shoulder movements as the same (with the exception of resisted supraspinatus contraction which was more uncomfortable on the left). He has not had imaging of the left shoulder but I expect the findings would be very similar to those demonstrated in the right shoulder [emphasis added].

33. In his report dated 8 September 2016, Associate Professor McGill stated:

    I substantially agree with the views expressed by Dr Pillemer. I think we are both in agreement that the degenerative changes in his rotator cuffs are constitutional and were not caused by his work with Australia Post. We also both agree that his work duties had the potential to increase his shoulder symptoms.

    I confirm that the degree of shoulder elevation which he performed when doing his work (based on the actions which he demonstrated when I saw him) were not such that one would expect any change in the structure of the rotator cuff to have occurred [emphasis added].[13]

    [13] Exhibit R1.

    Concurrent evidence – Dr Pillemer and Associate Professor McGill

34. Dr Pillemer and Associate Professor McGill gave concurrent evidence at the Tribunal hearing. Dr Pillemer and Associate Professor McGill agreed that Mr Maybury’s right shoulder condition was degenerative but disagreed about whether his employment at Australia Post had aggravated the pathology.

35. Dr Pillemer opined that the repetitive task of sorting mail with the right arm/shoulder over a ten year period for five to eight hours per day aggravated the underlying degenerative condition in Mr Maybury’s right shoulder. He also thought it was coincidental that changes to the positioning of the plastic strips on shelves at Australia Post occurred at a similar time to the onset of pain in his right shoulder.

36. Associate Professor McGill relied on research to support his conclusion and cited studies by:

    ·Sher et al, who found MRI evidence of rotator cuff tears in 54% of 46 asymptomatic individuals aged more than 60 years; 28% had full thickness tears and 26% had partial thickness tears. In the group aged between 40 and 60 years, 28% had tears, most of which were partial thickness;[14] and

    ·Svendsen et al, which concluded that ‘work with the arms in a highly elevated position is associated with MRI-diagnosed alterations in the supraspinatus tendon’.[15]

    [14] Jerry S Sher, John W Uribe, Alejandro Posada, Brian J Murphy and Michael B Zlatkin, ‘Abnormal findings on magnetic resonance images of asymptomatic shoulders’ (1995) 77 Journal of Bone and Joint Surgery 10.

    [15] Susanne Wulff Svendsen, John Gelineck, Svend Erik Mathiassen, Jens Peter Bonde, Lars Henrik Frich, Kristian Stengaard-Pedersen and Niels Egund, ‘Work Above Shoulder Level and Degenerative Alterations of the Rotator Cuff Tendons: A Magnetic Resonance Imaging Study’ (2004) 50(10) Arthritis & Rheumatism 3314.

37. On the basis of these studies, Associate Professor McGill told the Tribunal that it was not unusual for someone of Mr Maybury’s age to have a rotator cuff tear. He also contended that it was not possible to say whether Mr Maybury’s rotator cuff tear was aggravated by his employment at Australia Post as Mr Maybury performed the task of sorting mail below shoulder height.

38. Dr Pillemer felt that limited weight should be placed on the relevance of these research studies to the condition of Mr Maybury’s right shoulder. He expressed his view that these studies neither addressed the effect of the degenerative condition in Mr Maybury’s right shoulder nor considered the nature of tasks undertaken by Mr Maybury at Australia Post.

    consideration

1. The medical evidence that Mr Maybury has a moderate degenerative condition in his right shoulder is not contested. Based on the evidence before me, I am satisfied that Mr Maybury’s right shoulder condition is an ‘ailment’ within the meaning of s 4(1) of the Act.

2. I am not satisfied that s 5B(1)(a) of the Act applies to Mr Maybury’s ailment because the medical evidence unanimously finds his right shoulder condition is degenerative. It is therefore not an ailment suffered by Mr Maybury that was contributed to, to a significant degree, by his employment at Australia Post.

3. Accordingly, the question for determination by the Tribunal is whether Mr Maybury’s right shoulder condition as at 8 May 2015 was an aggravation of an ailment that was contributed to, to a significant degree, by his employment at Australia Post as set out in s 5B(1)(b) of the Act.

4. In deciding that question, the matters set out in subsections 5B(2)(a)-(e) of the Act may be taken into account.

5. I have also had regard to both parties’ submissions in relation to the interpretation of ‘aggravation’ and ‘significant degree’, particularly as set out in the High Court decision of Federal Broom Co Pty Ltd v Semlitch[16] (Semlitch), and the Full Federal Court decisions in Commonwealth v Beattie[17] (Beattie) and Commonwealth Banking Corporation v Percival[18] (Percival).

   [16] (1964) 110 CLR 626.

   [17] (1981) 35 ALR 369.

   [18] (1988) 20 FCR 176.

6. In Semlitch, Windeyer J reasoned that in deciding whether there is an aggravation of the disease, the question is ‘whether the disease has been made worse in the sense of more grave, more grievous or more serious in its effects upon the patient’.[19] His Honour noted that ‘[t]he contributing factor [to the aggravation of the disease] must … be either some event or occurrence in the course of the employment or some characteristic of the work performed or the conditions in which it was performed’.[20] He further stated ‘[t]he question whether there has been an aggravation … is, I think, essentially one of fact’.[21]

   [19] (1964) 110 CLR 626, 639.

   [20] (1964) 110 CLR 626, 641.

   [21] (1964) 110 CLR 626, 637.

7. Evatt and Sheppard JJ in Beattie affirmed that Semlitch is ‘an authority which establishes that there may be an exacerbation or an aggravation notwithstanding that there is no change in the underlying pathology’.[22] Their Honours also said that ‘pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place’.[23] Percival established that ‘[p]ain is probably the most common symptom of injury or disease’.[24]

   [22] (1981) 35 ALR 369, 377.

   [23] (1981) 35 ALR 369, 378.

   [24] (1988) 20 FCR 176, 180.

8. These cases provide authority that, in the application of s 5B(1) of the Act, I am required to consider whether the effects upon Mr Maybury’s right shoulder ailment are more serious as a result of his employment; and if so, whether a contributing factor to the aggravation of the ailment is a characteristic of the work he undertook. Furthermore, pain brought on by work tasks may constitute an aggravation of an ailment, even if there is no change in the underlying pathology. In making my decision, I must rely on the facts before me.

9. Dr Pillemer and Associate Professor McGill concurred that the nature and conditions of Mr Maybury’s work at Australia Post did not cause degenerative change to his right shoulder. Dr Pillemer opined that the repetitive task of sorting mail over a ten year period aggravated Mr Maybury’s right shoulder condition. Associate Professor McGill relied on research studies to support his view that the state of Mr Maybury’s shoulder would have been the same regardless of his duties at Australia Post.

10. Considering all the evidence before me and the matters set out in subsections 5B(2)(a)-(e) of the Act, I find that:

    ·Mr Maybury undertook the repetitive task of sorting mail with his right hand/arm/shoulder for a period of five to eight hours per shift over a ten year period. This characteristic of Mr Maybury’s employment was a contributing factor in the aggravation of his right shoulder ailment.

    ·While Mr Maybury had an underlying degenerative right shoulder condition, his symptoms of pain in his right shoulder ceased when he stopped work and began again when he recommenced sorting mail. As contemplated in Beattie, pain effected by work tasks may represent an aggravation of an ailment.

    ·Mr Maybury did not experience pain in his left shoulder, which both Dr Pillemer and Associate Professor McGill contended would likely also have the same degenerative condition.

    ·There was no evidence before the Tribunal that Mr Maybury undertook activities outside of the workplace or had any other matters that affected his health that would have contributed to the aggravation of the disease in his right shoulder.

11. I find that I am not persuaded by Associate Professor McGill’s conclusion that Mr Maybury’s right shoulder condition was not aggravated by his employment at Australia Post because he relied on research that examined rotator cuff injuries arising from work undertaken above shoulder height and of a different nature to Mr Maybury’s tasks; this research did not characterise the tasks undertaken by Mr Maybury in his employment at Australia Post.

    Conclusion

12. Based on the evidence before the Tribunal, I am satisfied that Mr Maybury suffered an aggravation of his right shoulder condition that was contributed to, to a significant degree, by his employment at Australia Post.

    Decision

13. The Tribunal sets aside the reviewable determination dated 18 August 2015 and, in substitution, decides that Mr Maybury is entitled to compensation under section 14 of the Safety Rehabilitation and Compensation Act 1988 for his ‘torn supraspinatus + long head biceps tendon’ injury suffered on 8 May 2015.

I certify that the preceding 51 (fifty -one) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate

Dated 6 December 2016

Date(s) of hearing	3 and 4 November 2016
Counsel for the Applicant	J Dodd
Solicitors for the Applicant	J Carroll, Slater & Gordon Lawyers
Counsel for the Respondent	M Gollan
Solicitors for the Respondent	B O'Brien, Moray & Agnew Lawyers