Ryan and Australian Postal Corporation
[2003] AATA 1297
•18 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1297
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/261
GENERAL ADMINISTRATIVE DIVISION )
Re MICHAEL RYAN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr RG Kenny, Member Date18 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
....................(Sgd)......................
RG Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – liability – whether the applicant has an injury which arose out of or in the course of his employment – shoulder condition – conflicting medical evidence – Tribunal not satisfied that incident relied upon by applicant caused the condition
Safety, Rehabilitation and Compensation Act 1988, ss 4, 6, 14
REASONS FOR DECISION
18 December 2003 Mr RG Kenny, Member Background
1. On 11 March 2002, Michael Ryan (the applicant) completed a claim for workers’ compensation benefits in relation to what he described as “right shoulder and arm, neck area”. He alleged that the condition had developed as a result of an incident that occurred on 20 February 2002 whilst performing the duties of a mail sorter in his employment with Australian Postal Corporation (the respondent).
2. On 11 May 2003, a claims manager with the respondent rejected the claim and that decision was affirmed by a reconsiderations delegate on 28 November 2002. The applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal) on 20 March 2003.
Hearing
3. The applicant was not represented and the respondent was represented by Mr C Clark of Counsel.
4. A statement prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 was taken into evidence as Exhibit 1 (the “T” Documents: T1 to T36). In addition, the following material was taken into evidence:
Exhibit 2photographs depicting a multi-line optical character reader (MLOCR);
Exhibit 3a statement, dated 29 September 2003, completed by the applicant;
Exhibit 4a medical report, dated 18 July 2003, from Dr Gregory Nutting, consultant orthopaedic surgeon;
Exhibit 5a medical report, dated 22 May 2003, from Dr David Gilpin, orthopaedic surgeon;
Exhibit 6a medical report, dated 9 March 1998, from Dr Michael d’Emden, endocrinologist;
Exhibit 7a medical report, dated 4 July 1995, sent to Dr David Eaton, Queensland Vocational Health Service; and
Exhibit 8clinical notes completed between 16 May 2001 and 23 May 2003, from the Banyo Clinic.
Issues and legislation
5. Under section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act), the respondent is liable to pay compensation in accordance with the terms of the Act in respect of an injury suffered by an employee where that injury results in incapacity for work or impairment. In this matter, the issue for the Tribunal is whether the applicant suffered such an injury and the provisions of the Act relevant to the determination of that issue are:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
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.
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.
…
6 Injury arising out of or in the course of employment
(1)Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
(a) …
(b) while the employee:
(i)was at his or her place of work, for the purposes of that employment, or was temporarily absent from that place during an ordinary recess in that employment;
…
14 Compensation for injuries
(1)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. …”
Evidence
The Applicant
6. The applicant gave evidence that, on 20 February 2002, he was working on an MLOCR machine. This is designed to sort mail, contained in trays which sit within sliding drawers, into groups for delivery purposes. He said that, as he moved a drawer, it came away from the tray and fell from the level at which he was working, around shoulder height, to the ground. He said that he instinctively attempted to catch the tray, that it grazed his leg before it hit the ground and that he jarred his shoulder at the time. He said that the weight of the mail in the tray was about 15 kilograms. He said that he did not complete an incident report as it was near the end of his shift and he did not realise that he had caused a problem in his shoulder at that time. He said that he went home, took a hot shower, applied a heat pad to his shoulder and did not take time off work or seek medical attention until 28 February 2002 after he had completed an incident report and was referred to a nominated medical practitioner. He said that the incident with the tray of mail had been witnessed by a fellow employee, Maureen Cox, and that his supervisor, Nancy Buss, had approached him immediately afterwards and asked how he was.
7. The applicant agreed that he had visited his own general practitioner at the Banyo Clinic on 25 February 2002 in relation to a stomach problem that he was having at that time and that he made no reference to his right shoulder. He said that his main concern at that time was his stomach problem. He agreed that he had not told his own doctor about the condition until after his claim had been rejected and that the first notification was in November 2002.
8. The applicant gave varying accounts as to the extent to which his shoulder affected him between 20 February and 28 February 2002 when he got treatment. He said that it “started to get sore on 28 February”, that the pain “gradually increased during the period”, that it was “not a real bother until 28 February”, that he had a “feeling” in his shoulder as though it was “in a clamp” and that it was “sore when he used it by reaching out”.
9. The applicant agreed that he had made claims previously in respect of other injuries and had done so within a short period of the injury occurring and that, in 1988 after he had hurt his back, he had sought medical treatment within two days. However, he said that a back condition and a shoulder condition were very different in that the back is implicated in all movements. He also agreed that, in September 1996, he had obtained a medical certificate for relief from his duties on the basis that he had been feeling “run down” on the previous day and had left work early. The applicant said that he was aware that the respondent had instituted a system of early intervention in the case of work-place injury and he said that previous claims that he had made had been prior to the introduction of that system. He said that he believed that the intervention processes constituted compensation for employees.
10. The applicant said that he suffered from diabetes mellitus and had done so since 1981 and that he was responsible for monitoring his blood sugar levels, insulin dosages and dietary intake. He said that he had always been responsible for maintaining these sugar levels and that it was a complex process requiring every day monitoring. He rejected the suggestion that he was not committed to the full implementation of a correct monitoring program.
Maureen Cox
11. Ms Cox said that she had seen the incident involving the applicant and the tray. She said that she had observed him attempting to arrest the fall of the tray unsuccessfully and saw it fall to the ground grazing his leg on the way. She said that she saw him grasp at his shoulder and call out. She said that she believed the applicant had jarred his shoulder but she could not recall whether he had told her that this had happened.
Nancy Buss
12. Ms Buss said that she did not see the incident in its entirety but, because of the noise that it made, she turned to see the tray falling to the ground and the applicant reaching forward in an attempt to stop it. She said that she was the floor supervisor and that, in that capacity, she had approached the applicant and asked how he was. She said that the applicant responded by stating that he was “alright”.. She agreed that there was no appearance of any serious injury at that stage. In a statement that she completed on 22 October 2002, she said:
“It was a couple of days later when he was back working on the MLOCR that he realised the jarring in the shoulder had done more damage than he first thought.”
13. Ms Buss said that she made that statement on the basis of what the applicant had told her about the way that his shoulder was feeling.
Dr David Gilpin, Orthopaedic Surgeon
14. Dr Gilpin examined the applicant and completed reports on 12 February 2003 and 22 May 2003. In the second of those reports, he detailed the history given to him by the applicant:
“He is a forty-six year old right-handed male sorter at Australia Post. He has been in this employment for eight years. His job involves him working at chest level to sort the mail and to sort parcels to trolleys. His problem relates to his right shoulder. The patient stated that he first noted problems in February 2002 when he was at work. He stated at this stage he pulled out a tray which he estimated the weight of approximately fifteen kilograms. The whole tray fell and he hurt his right shoulder. He has since provided me with supplementary reports by two independent parties saying that he attempted to grab the trays as they fell jarring his shoulder.
The patient stated they did not take any action but colleagues had noted the injury. The following week he was undertaking the same job on the same machine and noticed increased pain in his shoulder. He therefore decided to report his injury. He was seen by the company medical officer and placed on light duties and commenced a physiotherapy program.
The patient stated that this seemed to worsen his shoulder problem and therefore he ceased the program. He has remained on light duties since. He has had an x-ray and ultrasound and was referred by Australia Post WorkCover to an independent orthopaedic surgeon and since that time the patient advises he has had his claim rejected.”
15. In that report, Dr Gilpin referred to the results of two ultrasounds which showed no evidence of any rotator cuff pathology. He also referred to an absence of focal pathology in an x-ray that had been taken. Dr Gilpin then gave the following opinion:
“This gentleman clearly has frozen shoulder in his right shoulder. The question that is most at concern in terms of management is whether it is a work related matter. There does seem to be a clear history of injury at work and there are signs both radiologically and clinically that there has been a rotator cuff problem. In terms of non work related matters however there is evidence of longstanding insulin dependent diabetes which is a known pre-disposition to the development of adhesive capsulitis (frozen shoulder).
Whilst it is entirely possible that the condition could have occurred spontaneously, in the context of the presentation which is supported by independent reports, there does appear to have been an injury in the terms of the WorkCover Act. I am aware that in many cases frozen shoulder is reported to develop after a minor injury. In the context of most patients that I see with frozen shoulder, there is a history similar to this consistent with some form of injury to the rotator cuff which starts the process of the frozen shoulder developing. In this context, I believe that work therefore does contribute to his presentation and it is one of two significant factors in the presentation, the other being his diabetes. On this basis I believe his claim requires reconsideration.”
16. In his evidence, Dr Gilpin conceded that the history given by the applicant was important to his conclusion that the shoulder condition was related to employment. In particular, he said that this was because he believed, from what the applicant had told him, that there had been a significant event involving his shoulder when he reached forward to arrest the fall of the mail tray. He also said that he relied upon the history given by the applicant of the problems he had with his shoulder following the occurrence of the incident on 20 February 2002. He also confirmed what he had said in his report that there was a greater association of the frozen shoulder syndrome in the case of a person who suffers from diabetes mellitus.
Dr Gregory Nutting, Orthopaedic Surgeon
17. Dr Nutting completed reports in relation to the applicant on 30 August 2002 and 18 July 2003.
18. Dr Nutting said that the term “frozen shoulder”, though widely used, is not always an appropriate description. He conceded that it was widely used but said that he believed the applicant suffered from a capsular contracture. In his first report, he gave the following opinion:
“Michael Ryan is a 45 year old gentleman who is an insulin-dependent diabetic. He relates a relatively innocuous incident in February 2002 which was insufficient to have him lose time off work and initially was not reported for a week. His rehabilitation was therefore delayed and he has subsequently developed a capsular contracture. As I have stated above, I do not think this should be called frozen shoulder, since it follows the incident outlined above, and capsular contractures are more frequent in diabetics than the rest of the community.
I think it is reasonable to suggest that he has a post-traumatic condition of the shoulder which has resulted in capsulitis and I doubt that this is an immunological phenomenon, but one of a conscious attempt to minimise shoulder movement and is a variation on the form of a shoulder-hand syndrome, without the hand implications, certainly as yet. I think, therefore, the initial shoulder strain diagnosis is a much more realistic estimation.
The subsequent restriction of movement is not so much a part of the trauma as an immunological response it would seem, although it did not respond to cortisone.
It is true that the aetiology of frozen shoulder is not known, and therefore one should not be calling this frozen shoulder in my estimation.
The condition he now suffers is not the result of a specific injury, but has followed an injury, and is most likely casually, rather than causally, related.”
19. In his second report, Dr Nutting indicated that he had read the reports of Dr Gilpin but said that this had not caused him to change his mind. In particular, he referred to the minor nature of the trauma that the applicant suffered and expressed the opinion that, if there were any trauma to the shoulder of that degree, its effect would have passed in some 7 to 10 days. He noted that there was no time off work after the incident and no treatment instituted for the condition for eight days. In his second report, he said:
“I would content that it is most likely this gentleman was suffering from an inflammatory condition which was of spontaneous origin and that these instances of jarring and discomfort on pulling on trays simply made the underlying process known to the claimant, so to speak. I feel that this gentleman has a predisposition towards developing the condition and that a number of activities using the arm at length or under tension would have made him aware of [sic]
Neither of the mechanisms of injury in my estimation would cause discomfort which would last for more than 36 to 48 hours and this gentleman did not seek any treatment for the discomfort on any of the occasions, hence my reason for assessing the pathology in this way.”
Consideration
20. I am satisfied that the applicant suffers from a problem with his shoulder which has been variously described as a “frozen shoulder” or “capsular contracture”.. For its causation, the applicant implicated an incident that occurred to him on 20 February 2002 when he reached forward to arrest a fall of a tray of mail.
21. This is a matter where there is directly opposing medical evidence from two orthopaedic surgeons. Each of them, in their evidence, made it clear that they were relying upon the history given to them by the applicant of what had occurred. Dr Gilpin described it as a significant degree of trauma and it was on that basis that he was able to conclude that there was a relationship between the condition and the incident on 20 February 2002. Dr Nutting referred to the incident as being “relatively innocuous” and noted that it was insufficient to have him lose time off work or report it to a doctor for a period of eight days.
22. While I accept that an incident involving a tray of mail did occur on 20 February 2002, I am satisfied that it did not have the level of significance relied upon by Dr Gilpin. The applicant took no time off work and made no complaint to a doctor until eight days later. While that, in itself, may not be determinative of the issue, I consider that it is highly relevant that the applicant saw his own medical practitioner on 25 February 2002 and failed to mention that he was suffering from any shoulder problems. In evidence before the Tribunal were clinical notes from the Banyo Clinic (Exhibit 8) and the entry on 25 February 2002 refers only to “nocturnal nausea”. In addition, the applicant was inconsistent in the way that he described the presentation of symptoms in the period from 20 February to 28 February 2002. At times, he referred to a gradual worsening of symptoms and, on other times, he referred to the condition as becoming very painful on 28 February 2002. I note that there is a separate entry in the clinical notes of the Banyo Clinic dated 6 March 2002 which refers to the applicant’s visitation for treatment on 28 February 2002 at St Andrews and where reference is made to the applicant having a painful right shoulder after “yanking” a milk churn. The applicant said he was unable to explain that reference.
23. There is evidence before the Tribunal that the applicant has a history of making timely complaint of health problems and yet, in circumstances where he claimed that he was suffering from problems with his shoulder, he failed to make reference to it at all when in the presence of his own doctor. On all of that evidence, I am satisfied that the applicant did not suffer from a significant trauma on 20 February 2002 and that, therefore, I cannot accept the conclusion that was reached by Dr Gilpin which was based upon his understanding that such a trauma had occurred.
24. I am also satisfied that the report of Dr Nutting is based upon a more realistic understanding of the nature of the event that occurred on 20 February and I prefer his opinion to that of Dr Gilpin in relation to a casual rather than a causal association between the condition and the applicant’s employment.
25. It is not disputed that the applicant suffers from diabetes mellitus. This is confirmed in the medical report of Dr d’Emden (Exhibit 6). In that regard, I have noted the opinions of both Dr Gilpin and Dr Nutting in relation to the greater likelihood that a person suffering from diabetes mellitus will experience a shoulder condition of the type that the applicant has and I have also noted that, in his report, Dr Gilpin declared that it was entirely possible that the condition in the applicant could have occurred spontaneously.
26. I am satisfied that the applicant’s shoulder condition did not arise out of and was not contributed to by any aspect of his employment with the respondent and, therefore, am satisfied that it is not an injury as that term is defined in section 4 of the Act such that the respondent is liable to pay compensation to the applicant for incapacity for work or for impairment under section 14 of the Act.
Decision
27. The decision under review is affirmed.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member
Signed: Sarah Oliver
AssociateDate of Hearing 27 October 2003
Date of Decision 18 December 2003The Applicant appeared in person
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Sparke Helmore
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