Reilly and Australian Postal Corporation
[2008] AATA 654
•29 July 2008
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) No N 2006/2516
) 2008/0998
GENERAL ADMINISTRATIVE DIVISION ) Re LETECIA REILLY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DIRECTION
TRIBUNAL: Ms N Isenberg, Senior Member
Dr MEC Thorpe, MemberDATE: 4 August 2008
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application. The decision of the Tribunal should be amended such that the reference to “Centrelink” in paragraph 48 should be read as “Australia Post”.
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Ms N Isenberg
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 654
ADMINISTRATIVE APPEALS TRIBUNAL ) No N 2006/2516
) 2008/0998
GENERAL ADMINISTRATIVE DIVISION ) Re LETECIA REILLY Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member
Dr MEC Thorpe, MemberDate29 July 2008
PlaceSydney
Decision The decision under review is set aside and the matter is remitted to the Respondent to determine the Applicant’s entitlement to compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.
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Ms N Isenberg
Senior Member
CATCHWORDS
COMPENSATION – Bilateral Carpal Tunnel Syndrome – whether caused by nature and condition of work – decision under review is set aside
Safety, Rehabilitation and Compensation Act 1988
Australian Postal Corporation v Burch (1998) 85 FCR 264
Comcare v Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15
Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
REASONS FOR DECISION
29 July 2008 Ms N Isenberg, Senior Member
Dr MEC Thorpe, MemberBACKGROUND
1.Mrs Reilly commenced work with the Respondent (“Australia Post”) in 1990, first as a casual, and then on a part time basis, and from 1997, full time, working the afternoon shift.
2.On 8 February 2006, Mrs Reilly completed an incident report in respect of right hand pain that she experienced while clearing stacks.
3.Upon investigation by way of nerve conduction studies, she was found to have bilateral median nerve slowing at the wrist typical of carpal tunnel syndrome (“CTS”) with the changes moderately severe to severe, particularly on the right.
4.On 21 February 2006, a Return to Work Plan was put in place. Mrs Reilly was required to only perform light duties, which included mail culling, quality control, label making and sorting small letters.
5.On 27 February 2006, she made a claim for rehabilitation and compensation in respect of her right carpal tunnel. However, this was disallowed on the basis that the medical evidence did not establish a probable connection between her condition and her employment. Her later claim dated 19 November 2007 in respect of her carpal tunnel was also refused.
6.On 8 March 2007, Mrs Reilly underwent right carpal tunnel decompression. The same procedure is planned for her left.
ISSUES
7.Whether:
·Mrs Reilly suffers from bilateral carpal tunnel syndrome as a result of her employment with Australia Post.
·Mrs Reilly’s condition was significantly contributed to by her employment with Australia Post.
·Mrs Reilly is entitled to compensation in respect of her bilateral carpal tunnel condition pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
LEGISLATIVE SCHEME
8.Section 14(1) of the Act provides:
Subject to this Part, Comcare 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.
9.Section 4 of the Act, as it was at the relevant date, provides the following interpretations:
(1) In this Act, unless the contrary intention appears:
…
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
...
disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
...
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
...
(9)A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being:
(a)an incapacity to engage in any work; or
(b)an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened.
MRS REILLY’S EVIDENCE
duties
10. Mrs Reilly gave evidence that her fulltime duties at the Strathfield Mail Centre consisted of a combination of working at mail sorting machines and manual sorting. She worked a total of approximately 5 hours at 2 different machines, and did manual mail sorting for the balance of her shift.
11. A video demonstration of her tasks at the Multi-line Optical Character Reader (“MLOCR”) and Manual Sorting was provided. One part of the MLOCR work (“the feeding end”) required her to use one or both hands to grip mail in trays and lift the trays onto a feeder. Filling each tray would require 4 or 5 such actions and there would be about 60 trays to be managed in each half hour of that task. 2 workers would handle 30,000 letters in an hour. The duration of the shift at the feeding end was half an hour.
12. The other end of the MLOCR (“the clearing end”) entailed pulling mail off a shute, into a tray (“the stacker”) and lifting a full tray weighing about 10 kgs onto a conveyer. About 30-40 trays would be unloaded in half an hour. The same number of empty trays would be loaded onto the stacker.
13. Another machine, the Bar Code Sorter (“BCS”), was similar to the MLOCR. Each tray weighed 8-10 kgs when full and 4-5 lifts (of mail items) were required to fill a tray. The lifting motion was to grip letters with usually one, but sometimes both, hands.
14. Another task was to work in the “bull ring” where odd sized mail was picked up from a wire cage, held against the body and moved to another location. Items would weigh about 2-3 kgs.
15. Manual mail sorting was undertaken sitting down. Mrs Reilly was required to grab mail in her left hand in a cupping movement and use the right to sort individual letters into pigeon holes. This task was for about 1¾ hours. She said she was obliged to sort 1200 items an hour. Whilst completing the task of manual sorting, the staff are required to do stretching exercises every 5 minutes.
symptoms
16. Mrs Reilly said that she first experienced numbness in both hands in late 2004. All her fingers and her thumb were numb and there was pain in the palm of the hand. At that time the right was worse than the left. The pain would extend about 3-4 inches past her wrist, sometimes even up to her elbow and to the top of her shoulder.
17. By February 2006 there was swelling on her right hand from the base of her index finger to the base of her thumb towards the back of her hand. She was off work during February and March 2006 and returned on light duties, but she was still required to grab small bundles of mail to cull. The numbness remained but there was less pain.
18. Following the operation on 8 March 2007, she did not experience numbness and only a little pain in the inner aspect of the right wrist. She was off work for a couple of days following the operation and returned on light duties printing labels. She has never returned to the machine work. Even with light duties the pain and numbness in the left wrist has remained the same.
MEDICAL EVIDENCE
Dr Dowla
19. On 21 April 2006, Dr Dowla, Consultant in Neurology and Clinical Neurophysiology, who had undertaken the nerve conduction studies, reported that, if not caused by her employment, Mrs Reilly’s carpal tunnel syndrome was very likely to have been aggravated by her employment with Australia Post.
Dr Gliksman
20. On 7 December 2006, Dr Gliksman, Occupational Physician, reported clinical evidence of right-sided carpal tunnel syndrome, and opined that performance of the full requirements of Mrs Reilly’s position would materially increase the risk of aggravation of the constitutional condition of carpal tunnel syndrome.
Professor Sambrook
21. On 22 March 2007, Professor Sambrook, Rheumatologist, completed a medical report in which he diagnosed Mrs Reilly with bilateral carpal tunnel syndrome. He opined that the repetitive nature of her manual work was probably “…related to the onset of her carpal tunnel syndrome, regardless of…any…predisposition of a constitutional nature”. He noted that from the history that he obtained relatively soon after the procedure on the right side, and from subsequent reports, Mrs Reilly had a positive response.
22. In his evidence Professor Sambrook said that he thought the type of duties Mrs Reilly was doing could aggravate an underlying carpal tunnel syndrome if she was doing significant repetitive wrist flexion and extension. He also referred to the meta-analysis by Abbas et al[1] as suggesting that frequent repetitive flexing will produce permanent symptoms.
[1] Abbas MA, Afifi AA, Zhang ZW, Kraus JF, ‘Meta-Analysis of Published Studies of Work – Related Carpal Tunnel Syndrome’ Int J. Occup. Environ Health (1998):160-167
23. Professor Sambrook referred to the views of Dr Stapleton, expressed in a general report dated 14 September 2007. There Dr Stapleton stated that people who have the genetic predisposition or aggravation due to, amongst other things, menopause, diabetes, thyroid, and pregnancy, will get nerve conduction symptoms of pins and needles, pain and numbness when they flex their wrist. Dr Stapleton was also of the view that the position of the wrist and the hand during different tasks, such as pinching and pressing, can elevate carpal tunnel pressures. Professor Sambrook agreed with Dr Stapleton’s views that if a person has a predisposition to carpal tunnel, the use of force and pressure on a repetitive basis can lead to an acceleration on the onset of symptoms associated with carpal tunnel syndrome.
24. Mrs Reilly also had to grip bundles of mail, which she described as being in a pinching movement. This grip applied force to her wrists. He referred to a systematic literature review by Palmer et al[2], where at page 53, it refers to a paper by Silverstein, in relation to the effects of both repetitive and with forceful hand wrist work.
[2] Palmer KT, Harris EC, Coggan D, ‘Carpal tunnel syndrome and its relation to occupation: a systemic literature review’ Occupational Medicine (2007) 57: 57-66
25. Professor Sambrook considered that repetitive lifting even less than a kilogram would increase the risk of developing carpal tunnel by about threefold. Heavier weights could increase the risk up to 15‑fold.
Dr Honner
26. On 21 March 2007, Dr Honner, Orthopaedic Surgeon, Specialist in the Hand and Upper Limb, opined that Mrs Reilly’s carpal tunnel syndrome is constitutional in origin, and has not been caused or aggravated by her employment with Australia Post.
27. In his evidence, Dr Honner said that carpal tunnel usually occurs in middle aged females, and is thought to be associated with hormonal changes such as menopause.
28. He acknowledged that it is a commonly held view, particularly in North America, that repetitive flexion and extension of the wrist will produce carpal tunnel symptoms and if done frequently enough there will be permanent symptoms. However, he said that the majority view is that the carpal tunnel syndrome is not due to repetitive movement of the wrist and instead is due to the genetic and constitutional factors.
29. He agreed that powerful gripping can change the pressure in a carpal tunnel, but did not think that repetitive, powerful gripping of itself can cause carpal tunnel syndrome.
30. He considered that if there is an established carpal tunnel syndrome and one does repetitive, forceful gripping, the symptoms of the carpal tunnel syndrome can temporarily be aggravated.
31. He noted that diabetes is one of the factors that can increase the chances of developing a carpal tunnel syndrome, but not necessarily in those who are non-insulin dependent. (Mrs Reilly has type 2 diabetes, controlled by diet and exercise.)
32. Mrs Reilly’s symptoms commenced with numbness and tingling which he considered to be typical. However, her description of tingling and paraesthesia for some time was a little atypical. The complaint of pins and needles and tingling is more common at night-time after they have been asleep for a few hours.
33. In cross-examination Dr Honner agreed that the gripping activity that was entailed in Mrs Reilly’s duties required some force. He also agreed that if Mrs Reilly was removing the letters by way of gripping with her hand or hands several times a minute, it would be repetitive work.
34. He agreed that work such as pinching and pressing can elevate carpal tunnel pressures, but only if it was associated with prolonged heavy lifting.
35. It was his view that if her work was the cause of this condition then something should have changed when she went onto light duties. That was not the history he took. However, he agreed that if Mrs Reilly noticed a reduction but not an elimination of symptoms whilst carrying out lighter duties then that would indicate that her work was something that contributed to the onset of her carpal tunnel syndrome.
Dr McGill
36. Dr McGill, Rheumatologist, provided a report dated 7 August 2007, and gave evidence. In his evidence he stated that he would have expected an improvement in symptoms when her work duties were restricted. If the numbness and symptoms are reduced whilst carrying out the alternate duties, then it would support the conclusion that the activity was related to making a symptom feel worse.
37. With respect to light, repetitive activities, there are very conflicting studies, so the literature does not come out with a clear conclusion in this area. However, it is quite possible for work to increase the symptoms of a carpal tunnel syndrome.
38. He agreed that the position of the wrist and hand during different tasks such as pinching and pressing can elevate carpal tunnel pressures. One of the provocative tests for carpal tunnel syndrome is when the position of the wrists are changed, such as when there is forced flexion of the wrist.
Professor Beran
39. On 7 November 2007, Professor Beran, Neurologist, completed a medical report at the request of the Respondent.
40. The report indicated that an examination of Mrs Reilly did not support a diagnosis of carpal tunnel syndrome. Mrs Reilly did not have weakness in any of the muscles that he would have expected if she had carpal tunnel syndrome, although he agreed there can be carpal tunnel syndrome with symptoms but not have muscle wasting.
41. In his view the most common reason for people having carpal tunnel syndrome is continually sleeping with the wrist hyper-flexed, causing damage to the nerve via the blood supply.
42. If it were possible to categorically say that absolutely nothing else changed except reduction in duties, then he would agree that her symptoms could be work related.
43. He did not accept that gripping things causes carpal tunnel syndrome. He accepted that “forceful extension and flexion” could cause carpal tunnel, but restricted this to activities such as vibrations through motor bike riding.
44. He also thought Mrs Reilly might have some psychological issues.
CONSIDERATION OF THE EVIDENCE
45. All specialists, with the exception of Professor Beran, were consistent in diagnosing bi-lateral carpal tunnel syndrome, with the right worse than left. We accept that from February 2006 Mrs Reilly suffered bilateral carpal tunnel syndrome.
46. The case on behalf of Mrs Reilly was put on two bases. The first basis was that Mrs Reilly suffered an injury simpliciter arising out of, or in the course of, her employment with Australia Post. The second was that there was an aggravation of an injury in the course of that employment, or a disease, to which the employment has contributed to in material degree.
47. As to the first, we do not accept that Mrs Reilly suffered an injury simpliciter. The pain that Mrs Reilly reported to Australia Post in February 2006, which she felt pain between her thumb and her finger on her right hand while she was clearing the stackers, did not amount to an injury simpliciter. In fact, when she was examined by Dr Dowla later that month, Dr Dowla recorded a two year history of paraesthesia and numbness in both hands, with the right hand being the worst. This suggests to us, that the condition was of gradual onset, and not an injury simpliciter.
48. Consideration of the second contention is more complex: did the Applicant’s employment with Centrelink contribute to the condition in a material degree?
49. Counsel for the Applicant referred us to Australian Postal Corporation v Burch (1998) 85 FCR 264:
Since both injury and disease are misfortunes which may have a relationship to employment, workers' compensation legislation has long provided for compensation in each case. But the necessary relationship to employment may be, generally speaking, less readily susceptible to proof of work connection for disease than injury.
50. The contributing factor must be either some event or occurrence in the course of the employment or, as is relevant in this matter, some characteristic of the work performed or the conditions in which it was performed: Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626. The concept of “material contribution”, particularly with reference to the meaning of the phrase “in a material degree”, was further developed in Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15. In that case, Finn J at [12], endorsed the decision in Comcarev Canute (2005) 148 FCR 232, that the changes brought about by the enactment of the Act “were intended to require that the contribution be ‘more than a mere contributing factor’” and that the inclusion of the term “material” imposes an “evaluative threshold below which a causal connection may be disregarded”. Finn J concluded at [16] that the correct test for the application of the section 4 definition of “in a material degree” required “an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment” and that whether this will be so, in a given case, “will be a matter of fact and degree”.
51. To this end, we considered the history in relation to work duties.
52.Dr Dowla, the original treating specialist, recorded that her job involves “repeated forced flexion of the wrist”.
53. This may not be a completely accurate history of the work that the Applicant performed. Neither, perhaps, was what Professor Sambrook stated in his medical report dated 22 March 2007:
There is quite a lot of machinery at Strathfield Mail Centre and her typical duties include clearing stackers, clearing heavy trays and putting mail into conveyor belts. She typically works about five days per week.
54. Nevertheless, there seemed to be little dispute, overall, that Mrs Reilly’s duties entailed repetitive hand movements, although the Respondent submitted that there was significant variety in her work, and within each type of task she undertook.
55. The job description described the physical demands of a mail officer as including “[r]eaching, turning, gripping, lifting – requiring continuous repetitive hand, arm and shoulder movements”.
56. We accept that Mrs Reilly’s tasks varied between the letter processing machines at which she worked and also the tasks while at each machine. Overall, we find though that all of Mrs Reilly’s duties involved gripping and pinching movements with some speed and repetition.
57. In support of the view that the repetitive manual work that Mrs Reilly has had to perform was related to the onset of her carpal tunnel syndrome, Professor Sambrook referred to 2 journal articles, the meta-analysis by Abbas et al, and the systematic literature review by Palmer et al. Counsel for the Respondent was critical of the articles and invited us to consider aspects of the articles which, it was contended, discredited their authority and any evidence that seeks to rely on them. We note the content of the articles, but we prefer to consider the evidence of the specialists who have had the opportunity to examine Mrs Reilly and to form a view as to causation in her circumstances accordingly. One of the most important factors that any expert brings to the table when giving an expert opinion is their own experience: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. It is not a matter for us to satisfy ourselves as to the reliability, or otherwise, of the source or research material that a specialist considers in formulating his views about a particular applicant. Being a specialist in a field is sufficient to give credence to his views. We only need to consider the differing views, if any, of the specialists.
58. Dr Loi, Consultant Surgeon, and Dr Woo, Orthopaedic Surgeon, whose reports were tendered, were also of the view that Mrs Reilly’s work as a mail officer could have contributed to her condition. Dr McGill, one of the Respondent’s specialists, also conceded that it quite possible for an underlying constitutional carpal tunnel syndrome to be made symptomatic by such work, although he was of the view that the condition itself is constitutional.
59. Dr Honner, who also referred to studies about carpal tunnel syndrome, was of the view that Mrs Reilly’s carpal tunnel syndrome is constitutional and has not been caused by her work.
60. Professor Sambrook was of the view that regardless of any existing pre-disposition, the repetitive manual work Mrs Reilly had to perform was related to the onset of her carpal tunnel syndrome. We prefer this view.
61. In coming to this view we note what the Applicant’s counsel described as the “litmus test” of determining whether any amelioration of symptoms stopping whilst doing that type of work. We accept the evidence of Mrs Reilly that after being placed on light duties she no longer experienced numbness, and the pain reduced. There was a period whilst being on light duties where she reported a complete cure of symptoms, but that corresponded with being given some deep tissue massage. This was referred to in Dr Gliksman’s report dated 7 December 2006. Drs McGill and Honner, and also Professor Beran (to a lesser degree) agreed that if Mrs Reilly noticed a reduction, but not elimination of symptoms whilst carrying out lighter duties, then that would indicate that her work was something that contributed to the onset of her carpal tunnel syndrome. We also note that Dr Gliksman’s advice to Australia Post was that if Mrs Reilly performed the full inherent requirements of the position of mail officer she would materially increase the risk of aggravating the constitutional condition of the carpal tunnel syndrome.
62. Further, there was no evidence that something else might have contributed to the condition. We do not accept Professor Beran’s view, which stands quite alone, to the effect that Mrs Reilly’s condition was probably brought about by her sleeping position or psychological issues.
63. After considering all the evidence, we find that the circumstances of the Applicant’s employment with Australia Post materially contributed to her carpal tunnel syndrome. Mrs Reilly is therefore entitled to compensation pursuant to section 14 of the Act.
DECISION
64. The decision under review is set aside and the matter is remitted to the Respondent to determine the Applicant’s entitlement to compensation pursuant to sections 16 and 19 of the Act.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member, and Dr MEC Thorpe, Member.
Signed:
…………[Sgd]………………….
Ms Radhika Prasad, AssociateDates of Hearing 4-6 June 2008
Date of Decision 29 July 2008
Counsel for the Applicant Mr John Dodd
Solicitor for the Applicant Ms Sandrine Lepage, Slater & Gordon Lawyers
Counsel for the Respondent Miss Rhonda Henderson
Solicitor for the Respondent Mr Graham Jones, Graham Jones Lawyers
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