Shaw and Australia Postal Corporation
[2005] AATA 747
•5 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 747
ADMINISTRATIVE APPEALS TRIBUNAL )
)No W2001/375 & W2004/183
GENERAL ADMINISTRATIVE DIVISION ) Re PATRICE SHAW Applicant
And
AUSTRALIA POSTAL CORPORATION
Respondent
DECISION
Tribunal Mr M J Allen, Member Date5 August 2005
PlacePerth
Decision The decision of the Tribunal is that:
(a) The reviewable decisions made on 23 March 2001 (the subject of proceedings W2001/375) and 18 May 2004 (the subject of proceedings W2004/183) are set aside. The matters are remitted to the respondent for reconsideration and determination of the applicant’s entitlements to compensation under ss 16 and 19 of the Safety, Rehabilitation and Compensation Act, 1988 (“the Act”) with the following directions:
(i) The applicant is entitled to compensation under sections 16 and 19 of the Act in respect of a physical injury to the right neck and shoulder sustained in the course of her employment on 23 February 2000 and for the mental injury of depression as a consequence thereof;
(ii) For all periods of incapacity for work between 23 February 2000 and the present date the applicant is entitled to compensation under section 19 of the Act on the basis of normal weekly earnings for a night mail sorter working 42 hours per week;
(b) Pursuant to s 67(9) of the Act the costs of the two proceedings incurred by the applicant shall be paid by the respondent.
...............(sgd M J Allen)...............
Member
CATCHWORDS
COMPENSATION – Commonwealth employee – applicant injured at work in February 2000 – liability accepted to pay compensation for right shoulder condition – liability subsequently terminated on basis that effects of shoulder injury had ceased and that any continuing incapacity was due to an unspecified neck condition not attributable to the original injury – consideration of whether reviewable decision within power of respondent to make – consideration of whether original injury involved the applicant’s neck as well as shoulder – consideration of whether applicant’s entitlement to weekly payments should be calculated on the basis of the two weeks employment prior to the injury or 12 weeks or some other period – consideration of whether, after January 2001, technological changes in the applicant’s workplace would have resulted in applicant working only 20 hours per week or greater hours – reviewable decisions set aside.
Safety, Rehabilitation and Compensation Act 1988 - Ss 4, 8, 9, 14, 16, 19, 67
Administrative Appeals Tribunal Act 1975 s 37
Australian Postal Corporation v Oudyn [2003] FCA 318
Rosillo v Telstra Corporation Limited [2003] FCA 1628.
Plumb and Comcare [1992] 39 FCR 326
Re Zegura and Comcare [1997] AATA 11555
Re Zegura and Comcare [1998] AATA 12740
Re Liu and Comcare [2004] AATA 617
Lees v Comcare (1995) 56 ALD 84, 22 AAR 350
Commonwealth v Borg (1991) 20 AAR 299
Re Demosthenous and Comcare [2001] AATA 949, 66 ALD 323
Re West and Telstra Corporation [2002] AATA 852
Re Davies and Comcare (1994) AATA 9637
Re Spurr and Comcare (1999) AAR 424
Bortolazzo v Comcare (1997) 75 FCR 385
Jones v Dunkel (1959) 101 CLR 298
REASONS FOR DECISION
5 August 2005 Mr M J Allen, Member 1. These proceedings involve the review of two decisions made on behalf of the respondent concerning the eligibility of Ms Patrice Shaw (“the applicant”) to compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the Act”).
2. The first reviewable decision (the subject of proceedings W2001/375) was made on 15 August 2001 and affirmed an earlier decision made on 23 March 2001 that the respondent’s liability in respect of incapacity and medical expenses arising out of a claim for compensation had ceased with effect from 16 December 2000.
3. The second reviewable decision (the subject of proceedings W2004/183) was made on 18 May 2004 and affirmed an earlier determination made on 6 May 2004 to the effect that, if the applicant is found to be entitled to compensation in proceedings W2001/375, then the rate of weekly payments payable should be calculated based on the hours referred to in that decision, further details of which are set out below.
4. At the hearing of the matter the applicant was represented by Ms Crawford of Counsel and the respondent was represented by its solicitor, Mr Greenland. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Act 1975 (“the AAT Act”) in both proceedings. For proceedings W2001/375 these documents will be referred to as T1 to T106 and for proceedings W2004/183 these documents will be referred to as 2004/T1 to 2004/T10. The Tribunal also received into evidence Exhibits A1 to A18 tendered by the applicant and Exhibits R1 to R12 tendered by the respondent. Oral evidence was given by the applicant and on her behalf by Dr J B Salmon, Dr P M Finch, Dr J F M Barrie, Ms K L Brown and Mr P D Gordon. Oral evidence was given on behalf of the respondent by Mr W T Newbold, Dr K M R Grainger, Dr A C Woo, Dr E F H Lee, Dr J D Low and Dr N T Lethbridge.
Background
5. The applicant was born in 1954. In July 1997 she commenced employment with the respondent as a night sorter at the Rockingham Delivery Centre (“the RDC”). On 23 February 2000, whilst sorting mail, she suffered an injury when she lifted an empty plastic tray across the front of her body with her right hand and flung it behind her to the right side. Whether that injury (which in these reasons I will refer to as “the February injury”) was to the applicant’s right shoulder or neck, or both, is an issue in the proceedings.
6. The applicant first obtained medical treatment for the February injury on 1 March 2000 and lodged a claim for compensation with the respondent on 2 March 2000 (T 5 and T6). The injury was described as “muscle strain/right shoulder” (Tp13).
7. On 10 March 2000 the respondent accepted liability under s 14 of the Act for a condition described as “[right] costovertebral strain” based on a diagnosis made by Dr Low in a report dated 8 March 2000 (T11) of “an upper back strain involving the T3-T6 costovertebral joints”. Thereafter the applicant continued to work with varying degrees of restrictions on duties and hours.
8. In July 2000 the applicant made a claim in respect of an injury said to have been work related to her lower back and which was diagnosed as being a “right L5/S1 facet strain”. In July 2000 the respondent rejected that claim and the applicant did not request a reconsideration of that decision. No aspect of that claim is relevant to these proceedings.
9. In the year following March 2000 the applicant saw a number of medical practitioners in respect of the consequences of the February injury. On 23 March 2001 the respondent made a determination, and informed the applicant (T91) that medical advice was that “…your current symptoms [are] not related to the incident of 23 February 2000” and that “… your compensable condition of [right] costovertebral strain has resolved …[and] … accordingly [the respondent] is unable to accept any liability under the … Act… … Therefore … as your accepted compensable condition has resolved under s 14 of [the Act] liability in respect of incapacity or medical expenses for your claim of 2 March 2000 is ceased with effect from 16 December 2000.” The applicant requested a reconsideration of that decision and on 15 August 2001 the respondent affirmed the earlier determination, advising the applicant (T106) that:
“…the weight of the medical evidence does not indicate any diagnosable medical condition related to the incident of 23 February 2000 or your employment with [the respondent]. Any condition that you may have suffered as a result of this incident have (sic) now resolved, that is, costovertebral symptoms. Therefore, I have affirmed the delegate’s decision pursuant to s 62(5) of [the Act]. I find that [the respondent] is not liable to pay compensation in respect of incapacity and medical expenses for your claim of “[right] costovertebral strain” dated 23 February 2000.”
10. The applicant subsequently commenced proceedings in this Tribunal for review of the decision of 15 August 2001 and, prior to the matter coming on for hearing, sought a determination from the respondent concerning the issue of the applicant’s hours of work should she be successful in having the earlier reviewable decision overturned. The result was the determination made by the respondent on 6 May 2004 (2004/T6) which was to the effect that, if the respondent became liable to make weekly payments to the applicant under the Act, then the hours used for the calculation of the applicant’s entitlement would be:
“(a) from 16 December 2000 to 7 January 2001, at the rate which was paid immediately before 16 December 2000; and
(b) from 8 January 2001, pursuant to s 8(10) of the Act at a rate based on the assumption that [the applicant] would have worked 20 hours per week if she had not been incapacitated by the injury.”
11. At the applicant’s request the respondent reconsidered that determination and on 18 May 2004 affirmed it. The applicant subsequently applied to this Tribunal for the review of that decision (proceedings W2004/183) and the two matters proceeded to be heard together.
Statutory Framework and Issues
12. Pursuant to s 14 of the Act the respondent will be liable to pay compensation to the applicant “…in accordance with this Act in respect of an injury suffered by [the applicant] if the injury results in … incapacity for work, or impairment.”
13. Section 4(1) of the Act relevantly defines the following terms:
·an “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…”.
·a “disease” means: “…any ailment suffered by an employee … being an ailment … that was contributed to in a material degree by the employee’s employment…”.
·an “ailment” means: “…any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
14. Section 16 relevantly provides that if an employee suffers an injury then the employer “…is liable to pay in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as … [the employer] determines is appropriate to that medical treatment” whether or not the injury results in incapacity for work or impairment.
15. Section 19 relevantly provides that an employer is liable to pay to an employee “… who is incapacitated for work as a result of an injury…” weekly amounts of compensation during the period of incapacity calculated in accordance with formulae set out in that section – one of the elements of which is a concept of “normal” weekly earnings.
16. Section 8 provides a means of assessing the amount of an employee’s normal weekly earnings, including in s 8(1) and (2) provisions relating to what might be referred to as “ordinary hours” and “overtime hours” worked in each week during what the section refers to as the “relevant period”.
17. Section 9(1) relevantly provides that a reference in section 8 to the “relevant period” is a reference to the latest period of two weeks before the date of the injury during which the employee was continuously employed.
18. Section 8(5) relevantly provides that if, because of the shortness of the relevant period, the normal weekly earnings calculated under s 8(1) or s 8(2) would not fairly represent the rate at which the employee was being paid before the injury, then the normal weekly earnings before the date of the injury are to be calculated “…in relation to such other period as [the employer] considers reasonable for the purpose of arriving at an amount that does fairly represent the weekly rate at which the employee was being so paid.”
19. Section 8(10) relevantly provides:
“If the amount of the normal weekly earnings of an employee before an injury, as calculated under the preceding subsections, would exceed:
(a) where the employee continues to be employed by [the employer] – the amount per week that the employee would receive if he or she were not incapacitated for work;
(b) …
the amount so calculated shall be reduced by the amount of the excess.”
20. It is not in dispute that the applicant suffered an injury in the incident on 23 February 2000. However, the respondent says that the injury was to the applicant’s right shoulder and that by December 2000 the consequences of that injury were no longer present and thereafter the applicant presented with a different condition – to her neck - that was not a result of the February injury on and, consequently, the applicant would have no entitlement to compensation in respect of her symptoms thereafter because they related to a neck injury rather than the shoulder injury.
21. The applicant contends that the February injury suffered can be characterised as “…a physical injury to the right neck and shoulder sustained in the course of the applicant’s employment and mental injury namely, depression provoked by chronic pain…” (paragraph 6 of applicant’s closing submissions). The applicant also contends that weekly payments to the applicant in respect of her incapacity should be calculated, in respect of all periods of incapacity, at the rate of 42 hours per week.
22. The respondent says that, by virtue of s 8(5) of the Act, a period of 12 weeks should be used to calculate the number of hours each week that the applicant would have worked prior to her injury, and on that basis the applicant worked an average of 32.35 hours per week. The respondent says that any entitlement of the applicant’s weekly compensation up to 8 January 2001 should be calculated on the basis of that number of hours per week.
23. The respondent contended initially that, for the period after 8 January 2001, technological changes implemented in the workplace by the respondent would have resulted in the applicant not being asked to work any hours greater than 20 hours per week had she not been incapacitated because of her injury and that any weekly compensation amounts after that date should be calculated on the basis of 20 hours per week. However, in its final submissions the respondent stated that an amount of 21 or 22 hours per week should be used for the period commencing approximately 1 December 2003 (paragraph 33 of respondent’s final submissions).
24. An issue also arose at the hearing concerning whether or not the reviewable decision made on 15 August 2001 was invalid because it may have exceeded the respondent’s power to make if, on a proper construction, that decision purported to cease the respondent’s liability under the Act for all purposes after 16 December 2000: see Australian Postal Corporation v Oudyn [2003] FCA 318 and Rosillo v Telstra Corporation Limited [2003] FCA 1628. It is convenient to consider that issue first.
The Respondent’s Power to make the Decision
25. The respondent concedes that “it would not have been competent to determine that the respondent bore no further liability under s 14 of the Act but that, even had it done so, the decision would not have been wholly invalid but would have been read down so that it applied only to weekly payments and medical expenses” (paras 34 and 35 of respondent’s final submissions).
26. However, the respondent contends that it did not purport to revoke its original acceptance of liability under s14. It “… expressly confined its determination to ‘liability in respect of incapacity or medical expenses…” and has never attempted to “…foreclose a subsequent permanent impairment application…” (para 36 of respondent’s final submissions). The respondent contends that the references to s 14 instead of s 16 and s 19 in the determination of 23 March 2001 must be read subject to the words that follow, “…which make it clear that the determination does not go to the fundamental liability element referred to in Australian Postal Corporation v Oudyn (supra) and Rosillo v Telstra Corporation Limited (supra) (para 37 of the respondent’s final submissions).
27. It was contended on behalf of the applicant that the respondent’s reviewable decision was not made pursuant to s 16 or 19 of the Act as required by authorities such as Lee v Comcare (1999) 56 ALD 84, 29 AAR 350, Oudyn, and Rosillo. Reference was made to the remarks of Cooper J in Oudyn at 73 ALD at 667 as follows:
“[A determining authority] cannot bind itself in advance to reject any future application on the basis of the determination made to cease payment of compensation for an injury under a particular section of the Act: Plumb v Comcare (1992) 39 FCR 236 at 240. Nor can that result be achieved by purporting to determine on a reconsideration of a determination under s 14 that a liability, which correctly and effectively attach to [a determining authority] in respect of a particular injury, ceased on the date of the determination and that entitlement to compensation under any section of the Act was thereafter excluded in respect of the injury. The Act does not contemplate the making of such a determination once liability under s 14 of the Act is properly arisen and a determination to accept a claim made in accordance with s 54 of the Act.”
28. For the reasons set out below I have determined that the decision of 15 August 2001 should be set aside because of the view I have taken about the nature of the applicant’s injury in February 2000 and have determined the causation issue in her favour. It is, therefore, not necessary for me to reach a concluded view on this issue of whether the 15 August 2001 decision was beyond the respondent’s power to make. However, for the sake of completeness I will set out my views on this issue.
29. The Tribunal’s position regarding the general approach to be adopted to the issues addressed in authorities such as Oudyn and Rosillo is set out in a decision of the full Tribunal in Re Liu and Comcare [2004] AATA 617, a matter in which the president of the Tribunal, Downes J, presided. Apart from the limited circumstances in which liability under s 14 can be reconsidered under s 62 as to whether the original s 14 determination was correct on its merits, a positive determination under s 14 is a determination of the existence of a compensable injury and the injury would not cease to be a compensable one even though there may be periods when the compensable injury does not give rise to an entitlement to compensation. What is clear is that no determination can be made that can preclude the making of a future application for compensation with respect to a compensable injury that has been determined to exist under s 14. Accordingly, any form of words dealing with liability, whether by consent or otherwise, should not suggest that liability has ceased or that no future liability can exist. The words used should speak only as to present liability.
30. The words used in the determination of 23 March 2001, that “… under s 14 … liability in respect of incapacity or medical expenses for your claim of 2 March 2000 is ceased with effect from 16 December 2000” in my opinion refer to more than present liability. Those words, in the context of the statements in the determination that the compensable condition had resolved and that the respondent was unable to accept any liability under the Act can only convey the meaning that the respondent will accept no future liability to pay compensation, albeit that is limited to incapacity and medical expenses. As the Tribunal said in Re Liu (supra) at [7], “only lawyers knowing the principles set out … [in the relevant authorities] … would be likely to conclude that the determination spoke at its date and said nothing about the future”.
31. Accordingly, had it been necessary for me to do so, my decision on this issue would be that the reviewable decision should be set aside. It does not, however, follow that the matter should simply be remitted to the respondent for further consideration. This is not a case like Rosillo, in which there were no outstanding claims for various types of compensation. In Rosillo the employee sought only to preserve the right to make further claims in the future. In the present case the applicant has outstanding claims for weekly payments for incapacity and medical expenses and has foreshadowed, but has apparently not yet made, claims for permanent impairment. Because of the outstanding claims for incapacity and medical expenses it is, in my opinion, appropriate for the Tribunal to proceed to review the issue of liability under ss 16 and 19 so that the matter can be remitted to the respondent with any directions that the Tribunal considers it appropriate to make under s 43 of the AAT Act regarding the other issues in dispute concerning the applicant’s entitlement to compensation.
The Causation Issue
32. The question to be determined in relation to this issue is whether or not any incapacity the applicant had on and from 16 December 2000 was, for the purposes of s 14 and s 19 of the Act, the “result” of the February 2000 injury. The respondent contended that it was not - because the applicant presented with significantly different symptoms to various medical practitioners; her description of the injury had changed over time and that various practitioners found different indications (such as the source of pain) at various times. The respondent also contended that the original injury was unlikely to have been the cause of incapacity due to a neck condition because of the delay in the onset of symptoms of the neck and because radiological investigations had shown nothing to indicate neck pathology. Finally, the respondent contended that the applicant had recovered from whatever shoulder problems she suffered in the February injury. The respondent’s contentions in relation to all of these matters are set out at paragraphs 1 to 28 of the respondent’s final submissions.
33. In a statement of evidence tendered on her behalf (Exhibit A2) the applicant described how the injury occurred and that she “immediately felt discomfort behind the right neck and shoulder area” but that she carried on working. The discomfort remained and she “constantly rubbed and stretched my neck and shoulder areas.”
34. In the claim form dated 2 March 2000 the applicant referred to muscle pain in the right shoulder and that she “…felt slight pain to right shoulder …[and that] during following nights after a few hours felt tenderness and burning to right shoulder with increasing soreness as the night progressed.” (T5 pg 11).
35. In her oral evidence the applicant was cross-examined extensively about what symptoms emerged at the time (in terms of pain, stiffness and loss of range of movement) and how she described those symptoms to the many medical practitioners that she saw over the following years. She maintained that she had initially experienced pain in the region of the top of the right shoulder where the shoulder met the neck (which she described as approximately where her bra strap sat on the top of the shoulder) and extending somewhat deeper in towards her shoulder blade. Her evidence was, also, that she aggravated her neck pain on 30 March 2000 when sorting mail and saw Dr Barrie as a result on 3 April 2000 (exhibit A2 at para 165, T19).
36. A work colleague, Ms Brown, who worked alongside the applicant on the night she was injured said in her statement of evidence (exhibit A11 at [38]) that the applicant complained to her immediately after the incident occurred “…of neck and shoulder pain”. In her oral evidence Ms Brown demonstrated where the applicant had shown her at the time was the site of the injury – by putting her left hand on the top of her right shoulder, near where the shoulder joins the neck, with her fingers over the top of the shoulder slightly down the back side of the shoulder. Ms Brown was not cross examined in relation to her version of the events on the night.
37. I have noted above that the applicant saw many medical practitioners after February 2000 – including Doctors Woo, Low, Barrie, Lee, Lacey, Campbell, Lethbridge and Salmon within the first 12 months and, at various times thereafter, Doctors Grainger, Skerritt, Finch, Home, Skirving and others. She also saw, on a number of occasions, physiotherapists and a clinical psychologist. Many of these practitioners provided reports that were tendered in evidence and most gave oral evidence.
Dr Woo
38. Dr Woo (a general practitioner) was the first medical practitioner to see the applicant on 1 March 2000. He noted pain in her right posterior shoulder and concluded the applicant was tender over the right rhomboid and trapezius and had “muscle sprain and spasm”. He said in a subsequent report (exhibit R3 pg 20) that the applicant did not complain of neck pain at the time. He said that the applicant had a normal range of neck movement, but he focussed on the shoulder. Dr Woo was asked whether the pain in the shoulder might have been referred pain from the cervical area. He thought that for that to be the case the source of the referred pain would have to have been low down on the neck, in the C7/T1 region. Other diagnostic possibilities for the symptoms complained of were referred pain from the right shoulder and localised regional muscle or soft tissue injury.
39. Dr Woo was referred to document T38, which is a form prepared by a physiotherapist to whom he referred the applicant. The physiotherapist had recorded the parts of the applicant’s body to be treated as “1. Neck. 2. Posterior shoulder.” Dr Woo said that he would have referred the applicant for physiotherapy to the right shoulder and he was not aware of whether or why the physiotherapist had decided that the applicant should have treatment in adjacent areas. He said that he would normally have written a referral to the physiotherapist but it was noted that no such document could now be located.
40. Dr Woo agreed that it was possible that the applicant’s muscle spasm could have extended over a larger area and become worse in intensity after he saw her, and he thought that there could be a relationship between what might have happened thereafter and the type of work that she did. Although a degree of rest was important in the recovery of such an injury it was important to continue to use the arm to a degree to assist recovery.
41. Dr Woo was asked whether he saw anything to indicate a diagnosis of costovertebral joint strain and said that such a diagnosis was :
“…a way to describe an area of pain that you don’t always know entirely where the source is, so in this case the rhomboid muscles overlie this area, the trapezius overlies this area and those muscles, or that area was tender so I stated rhomboid and trapezius pains.”
The costovertebral muscles are beneath those muscles and there were no tests to indicate a diagnosis of costovertebral joint strain. Such a diagnosis implies that the source of the pain is deeper than the muscles identified by Dr Woo but he thought that it was a diagnosis that would be used when it was not known where the pain was coming from. It was not a diagnosis that had occurred to him at the time.
Dr Low
42. Dr Low (a medical practitioner who was described (T11) as a “medical advisor” to the respondent saw the applicant on 2 March 2000 and a number of further occasions in the following months. On 2 March 2000 he diagnosed the applicant as having “[right] costovertebral strain [thoracic 3 – thoracic 6]” (T7). In a report dated 8 March 2000 (T11) this was described as “… an upper back strain involving the T3 – T6 costo-vertebral joints.” Dr Low noted on 8 March 2000 that the applicant complained of morning stiffness in the neck (R10) and repeated that on 22 March 2000.
43. In December 2000 Dr Low found the applicant to have discomfort in cervical spine movements and tenderness at the C3/4, C4/5 and C5/6 right facet joints but not lower down at the costovertebral joints of the thoracic spine. Dr Low concluded (T60) the applicant did not suffer from “…any specific diagnosable medical condition”. He referred to a number of factors he perceived may have been “…potentially inhibiting [the applicant’s] rehabilitation and recovery at work” – including a lack of financial incentives to work more hours; her treating practitioner was “inadvertently” sanctioning her disability by certifying total unfitness for work or severely restricting work hours; that further investigations may confuse the picture and any findings may not be valid; and that the applicant had what Dr Low thought was poor motivation regarding work and a poor sick leave record prior to February 2000. It was on the strength of this report that the respondent ceased liability for the applicant’s claim.
44. Dr Low agreed that the muscles found by Dr Woo to be in spasm on 1 March 2000 may have been in spasm on 2 March when he first examined the applicant, but he had made no note to that effect. He had not been prevented from examining the applicant and he maintained that he could palpate the costovertebral joints even though they were below five layers of muscle.
Dr Barrie
45. Dr Barrie (a medical practitioner at the Delta Occupational Health Centre) first saw the applicant on 16 March 2000 and saw her on many occasions thereafter. In a report dated 28 January 2004 (R3 pg 38) Dr Barrie recorded his dealings with the applicant, noting that she had, at the first consultation, described the onset of “…right sided cervico-thoracic junction pain radiating to her right shoulder…” (R3 pg 39). He examined her neck and upper limb girdle and found “…mild symptoms of shoulder impingement… [but that]…of more significance was the right cervical thoracic junctional tenderness with adjacent paraspinal and shoulder girdle spasm.” He diagnosed right sided lower cervical or cervico-thoracic junction facet joint strain (C7/T1) with paraspinal muscle spasm. He thought Dr Low’s diagnosis of costovertebral joint strain was “unlikely”. From 30 March 2000 progress certificates completed by Dr Barrie (and Dr Lacey from the same medical practice) referred to the applicant as having a neck injury and various of the certificates referred to her neck – examples of which are “neck discomfort” (T18 of 30 March 2000); “aggravation of neck pain after shift on 30 March 2000” (T19 of 3 April 2000); “improvement in neck pain, still a very stiff neck” (T20 of 4 April 2000).
46. Dr Barrie denied being an advocate for the applicant, but noted (R3 pg 41) that her rehabilitation process “… became somewhat combative …” and thought the applicant had been dealt with unfairly.
Dr Lee
47. Dr Lee is an occupational physician who in 2000 acted as a consultant for the respondent. She saw the applicant on 3 May 2000 and her note was that the applicant was complaining of muscular pains between the shoulder blades but without thoracic pain. There was increased right anterior and posterior shoulder pain. When Dr Lee saw the applicant she had just been to the physiotherapist and had a sore upper shoulder and neck, but Dr Lee noted that there was a full range of neck movement. In her oral evidence Dr Lee said that she examined the applicant’s shoulder and neck area and concluded that there was nothing untoward about the neck and that the applicant’s problems were localised to the right shoulder and she was querying whether there could have been a rotator cuff problem – and so she requested an MRI scan of the shoulder, which subsequently revealed findings that fitted well with her assessment of the applicant on 3 May.
48. Dr Lee said that she had not undertaken a cervical quadrant test, which is a provocative test for cervical spine dysfunction, because she would not normally do so unless she had a specific reason to do it and in the applicant’s case the neck was not a major feature of her problems at the time and she would not do a test that could aggravate a problem.
Dr Lethbridge
49. Dr Lethbridge is an occupation physician to whom the respondent referred the applicant in June 2000. He recorded (R3 pg 1) the applicant stating that there was an onset of right shoulder pain in February 2000 which became progressively worse when she continued at work – and that “… in recent weeks she had also been troubled by neck and thoracic spine pain in addition to right shoulder symptoms.” At the time of examination the applicant said that pain “… varied in site between the right shoulder, neck and thoracic spine …”. Dr Lethbridge found some tenderness in the shoulder but “… no localised tenderness on this occasion in the neck or thoracic spine …”. I observe at this point that in his oral evidence Dr Lethbridge said that he had not noted “recent weeks” in his contemporaneous notes.
50. Dr Lethbridge offered the opinion that the involvement of a psychologist was appropriate to address factors that would otherwise magnify levels of pain and disability. He said (R3 pg 3-4) that the applicant was “… exercising little at the moment and this, combined with other compensatory postures adopted to avoid right shoulder pain, probably underlies her soft tissue neck and thoracic spine symptoms”.
51. Dr Lethbridge reported again in February 2002. He found tenderness along the right lower cervical spine to the right cervicothoracic junction and out into the mid suprascapular region. He noted that neck and shoulder pain can sometimes be difficult to separate given that each site can refer pain to the other.
52. Dr Lethbridge saw the applicant and reported again in December 2003 (R3 pg 25-30). He found no tenderness in the cervical spine and could not fault the right shoulder and arm. He noted the applicant considered her condition to have plateaued over the previous 18-24 months, that her symptoms fluctuated and that she described a “… sharp/burning pain which extended from the base of the neck out and across the right shoulder blade to the back of the right shoulder and down to the mid arm”.
53. Dr Lethbridge reported that, having reviewed the available reports concerning the applicant he considered that the most likely diagnosis of the February injury was a right shoulder injury. He thought that there “… does not appear to be strong support from available medical reports compiled during the period February through to June 2000 of significant signs or symptoms arising from the cervical spine” but also noted that most medical reviews after September 2000 felt the applicant’s “signs and symptoms” arose “ … within the cervical spine or para scapular soft tissues”. He thought the cause and origins of the applicant’s condition at that time to be “obscure” and noted that a wide range of potential diagnoses had been advanced.
54. Dr Lethbridge said that the applicant’s signs and symptoms had been variable in site and nature over the past four years and that “… her presentation has been most consistent … with a non-specific, right upper quadrant pain syndrome further modified by the presence of psychosocial and medicolegal factors”. He thought the diagnostic possibilities were:-
·referred pain from the cervical spine (which is unsupported by objective pathology or respond to nerve root sleeve or facet joint blocks);
·pain referred from the right shoulder (which he thought was unlikely); or
·a local or regional muscle or soft tissue condition such as a chronic musculoligamentous strain/sprain or a myofascial syndrome/fibromyalgia/ cervicobrachial disorder.
55. Dr Lethbridge favoured the third of the above options but found it “difficult” to suggest the February injury contributed in a material sense to the applicant’s conditions.
56. In his oral evidence Dr Lethbridge said that he still believed that compensatory posture changed by the applicant was the most viable explanation for the neck and thoracic spine symptoms he found, but in June 2000 he believed that once the shoulder problems were resolved the postural problems would settle down.
Dr Campbell
57. In September 2001 the applicant saw Dr Campbell, an orthopaedic surgeon. In a report dated 4 September 2000 (T52) Dr Campbell reported aching pain in the shoulder region – both posteriorly in the trapezius region and along the medial scapular border. He expressed the view that “…most of [the applicant’s] pain syndrome at this point in time is emanating from her neck. I found that medical parascapular pain is invariably due to referral from cervical pathology.” He thought the applicant needed hydrotherapy and physiotherapy programs for both her neck and shoulder. Dr Campbell did not give oral evidence.
Mr Christopher Lee
58. Mr Lee is a clinical psychologist who first saw the applicant on 1 June 2000. He reported (A9 pg 34) that the applicant reported injuring her shoulder and that she described the pain “… as a continual ache … that … felt like guitar strings had become really tight and were pulling on her back and neck” and also reported spasm pain that was excruciating. Mr Lee did not give oral evidence.
Dr Salmon
59. In January 2001 the applicant saw Dr Salmon, a specialist in pain management. Dr Salmon reported (T67) that he found limited movement around the base of the neck but no particular restrictions in the upper cervical region or the right shoulder area. There was tenderness over the lower cervical segments and palpation over the lower cervical nerve roots provoked shooting pain to the right shoulder and scapular region. Dr Salmon was of the opinion that the applicant’s “…right neck, shoulder region and head symptoms arise principally from dysfunction of the lower cervical segments and sensitisation of the adjacent lower cervical nerve roots … there is also a significant degree of associated mood disturbance including depression and anger directed towards [the respondent].”
60. In his oral evidence Dr Salmon emphasised the need, in his opinion, for a person such as the applicant to have a cognitive behavioural based treatment approach. She had a combined physical and psychological problem that was causing her disability, as is frequently the case with injuries of that type, and there should have been a combined physical and psychological approach to treatment. Dr Salmon said that the literature showed that this was the only type of treatment that had shown any efficacy for patients with the condition that the applicant has.
61. Dr Salmon said that the sleeve and facet injections that he administered were for the purposes of both investigation and treatment. The fact that there was a reduction in symptoms confirmed his view that C6 nerve sensitivity was a major factor in the applicant’s symptoms.
62. Dr Salmon said that at the time Dr Woo examined the applicant soon after the injury there may not have been signs or symptoms relating to her neck because often nerve sensitivity problems take a considerable period to become evident. Most people who have trivial injuries of this kind make good recoveries, but there is a proportion who go on to develop major chronic pain symptomatology and disability – and there is no evidence to suggest that they are all malingering. Research over the years points to the central nervous system mechanisms being the main determinant.
63. Dr Salmon was asked whether the fact that the applicant continued to work doing the same kinds of tasks as she was doing at the time of the injury with some modifications, might have had an aggravating effect. He thought that it may well have. When treating a situation like this it is necessary to restructure a person’s work rate very carefully with the aim of “reconditioning the nervous system” so that the activity is no longer pain-provoking.
64. Dr Salmon said that the acute situation often has very little bearing on the chronic situation because of the increase in neural sensitivity and increasing impact of work and psychological issues.
65. Dr Salmon said that the applicant’s history and her physical presentation were perfectly consistent with her condition, when he saw her, being the result of the February injury. It was also a consistent pattern with his experience in similar cases. He thought that the subsequent management of the injury was a major factor in the increase and perpetuation of her symptoms.
Dr Home
66. In February 2001 Dr Home, an occupational physician, saw the applicant and in a report dated 1 March 2001 (T84) Dr Home reviewed all the various opinions expressed in relation to the applicant over the previous year. Dr Home found restricted movement of the cervical spine, tenderness over the right paravertebral structure between C5 and C7 and also at levator scapulae insertion in the right suprascapular region. There was no abnormality of the thoracic spine apart from mild tenderness over the right side rhomboid muscles between T4 and T6.
67. Dr Home thought the pain in the right shoulder reported by the applicant in February/March 2000 suggested there may have been a tendon injury or possibly a muscular shoulder girdle complaint. He thought there is also some evidence that the applicant “… may have been experiencing some pain referred from the neck…”. Overall, Dr Home thought that:
“…putting the whole picture together, it seems likely that there was some initial shoulder cuff dysfunction extending between March and June, particularly noting the beneficial response to anaesthetic and cortico-steroid injection in July. Neck pain and referred pain from the neck to the shoulder girdle has become more prominent over time and her main complaint now is of suprascapular pain, likely to be referred from pathology in the lower cervical spine. … suprascapular pain can arise due to protective posturing secondary to shoulder pathology, [and] also due to lower neck pathology and local pathology in the region of the shoulder girdle muscles. Anxiety also contributes to symptoms in this area.
Therefore, on balance, I believe it reasonable to assess that [the applicant] continues to experience symptoms arising from her workplace activities in February 2000. These have fluctuated in intensity over the last twelve months”. Whilst I agree with the views of Dr Low that it is difficult to define a precise patho-anatomical cause for her symptoms, it seems reasonable to assess that she has now recovered from any rotator cuff tendonopathy which she may have experienced in the past. I believe that there is some referred pain from the lower cervical segments, although a discrete patho-anatomical diagnosis has not been established.”
Dr Grainger
68. Dr Grainger is a neurologist who saw the applicant in February 2002 and reported (R3 p 17) that he found tenderness lateral to the C7 vertebrae on the right and to a lesser extent over the trapezius muscle. He thought that it was possible that when the applicant developed muscle spasm it could exert pressure on the thoracic outlet, although that would have to be bilateral. He considered that the applicant had not suffered any neurological injury from the February 2000 injury or subsequently.
69. In a report of January 2004 (R3 p 31) Dr Grainger answered questions posed by the respondent’s solicitors. He believed from the history that it was most likely that the applicant stretched muscle fibres in the right trapezius muscle and possibly paraspinal muscle in the area adjacent to the C7 vertebrae. The symptoms did not suggest cervical nerve root or disc injury, nor any shoulder problem. He could find no evidence of any significant neurological pathology. There was unlikely to be any current persistent physical pathology at that stage and he thought that it was “… most likely the persistent pains are predominantly on a psychological basis with some associated muscle spasm, however, I feel this needs the expert opinion of an orthopaedic surgeon or rheumatologist.”
70. In his oral evidence Dr Grainger said that he tried to assess whether the intermittent pins and needles in the hands reported by the applicant were connected to the February injury and he could find nothing in the history to support this arising from injury at the neck level. The nerve at the C8 level supplies the fingers in which the applicant experienced pins and needles but he could find no clinical features to support that being the problem. If there had been any compression or stretching of a cervical nerve then he would expect a patient to experience immediate significant pain, but the onset of pain can be delayed somewhat if the injury is a significant one – such as a knife or bullet wound. Accordingly, he would have expected to see symptoms and signs of nerve damage from the beginning had they been present in the applicant’s case.
71. Dr Grainger agreed that it was possible to have nerve irritation without radiological evidence. Burning pain was not usually associated with nerve injury, it was more a continuous aching pain or sharp pains. Dr Grainger was referred to the notes made by Dr Low on 8 March 2000 in which he noted that the applicant felt numbness in three fingers of her hand and said that this suggested neurological symptoms and that the nerves in the hand are connected to the neck. He agreed that there was no technology available to show changes in neurophysiology and a failure to find clinical signs does not necessarily mean that a person does not have nerve problems. His conclusion was that he did not believe there were any particular neurological problems in the case of the applicant. However, he agreed that the fact that at least 3 doctors who saw the applicant very soon after her injury had diagnosed the source of the trouble differently muddied the water. Overall, he thought that muscle injury was a more likely explanation than a neurological one.
Dr Finch
72. Dr Finch is a specialist in pain medicine. He saw the applicant in April 2003 and reported (R3 pp 22-24) that the applicant described experiencing severe pain in the right neck and shoulder area and that she experienced fluctuating right cervical and scapular pain which never completely settled, although things did improve when she transferred to the day shift in early 2001. Dr Finch referred to the treatment administered by Dr Salmon concerning the C5/6 segment of the cervical spine and the C6 nerve root injection. He said that the applicant presented with a “… fairly typical cervical segmental injury at C5/6” which is the “… direct result of a rotating and extending movement of the cervical spine”. He also considered that the applicant had a shoulder injury of lesser degree and had developed secondary psychological issues and disturbance due to the protracted disputation or nature of her case. He considered that the February injury had caused the onset of a pain state that had not settled and that there was a “continuum effect” from this injury through to the current date.
73. Dr Finch reported again in July 2004 (R3 pp 49-50). He reported current tenderness in the lower right cervical spine at about C5/6 and also on the medial border of the right scapular. He thought the symptoms were consistent with the history of a “sudden, fairly forcible rotation of the neck and arm” in February 2000.
Dr Skirving
74. Dr Skirving is an orthopaedic surgeon specialising in shoulders and saw the applicant on a number of occasions between April 2002 and December 2003. In a report dated 23 April 2002 (A18 p 8) Dr Skirving reviewed the history to that time. He thought that there was little doubt that the applicant was “… acutely tender and painful in the region of her scapulothoracic muscles” when first seen after the February 2000 injury. He could offer no precise diagnosis but said that “this symptom complex is very similar to the large number of patients who have been seen and treated over the past 10-15 years and which have variably been reported on as having repetitive strain injury or now cervicobrachial injury”. He concluded that, based on the applicant’s story, he accepted that her symptoms are materially contributed to by the February injury and that her “… employment generally has also contributed to her current distress and has contributed to the failure of her problem to resolve”.
75. In subsequent reports, the last of which was dated 15 December 2003, Dr Skirving confirmed his view that there was no evidence to suggest that the applicant’s symptoms, as she describes them, are not the result of the original February injury.
Consideration of the Causation Issue
76. The overwhelming impression from the medical evidence outlined above is of its inconsistency and lack of agreement – both in terms of where various medical practitioners found signs and symptoms when they examined the applicant and what conclusions they drew from them. Dr Lethbridge acknowledged the point (at Transcript P-526) when he referred to the assessments of those doctors who had seen the applicant prior to her subacromial injection in July 2000, including his own, and said “I guess what strikes me the most is the disparity, I just don’t see agreement and I just find it quite amazing that we all find something different. We are all quite sure we pinpointed the spot … medical practitioners are not normally sloppy… I don’t understand how so many different doctors can review the same individual over a fairly short space of time and reach such staggeringly different diagnoses”.
77. All of that inconsistency, including the results of examinations made of the applicant in March 2000 - being the critical early period after her injury - and the disagreements between practitioners as to subsequent conditions and diagnoses, means that it is inevitably very different for the Tribunal to reach firm conclusions regarding the exact nature of the February injury and its consequences thereafter.
78. It is possible to say, and most doctors agreed, that the applicant’s signs and symptoms varied in location and intensity over time – but that the main emphasis initially was on the upper shoulder.
79. It is also possible to say that from an early stage psychological factors played an important part in the applicant’s state of mind and how she reacted to various events. The applicant perceived a lack of empathy from the respondent and a lack of understanding about her condition, and I accept Dr Barrie’s assessment that from an early stage the matter became somewhat combative. I will refer later in these reasons (in the context of another issue) to the applicant’s evidence regarding some interchanges between herself and the RDC manager, Mr Hill, in relation to compensation and injury matters.
80. I am also prepared to find that Dr Low’s diagnosis of 2 March 2000 that the applicant suffered from costovertebral joint strain at the T3-T6 level was unlikely to have been an accurate diagnosis. Apart from the difficulties of such a diagnosis - given that there are five layers of muscle overlaying the relevant vertebrae - I accept Dr Woo’s comments that such a diagnosis was a way of describing an area of pain when it was not known where the source of the pain was. I accept also Dr Lethbridge’s assessment (at Transcript P526) that Dr Low’s diagnosis “probably sits a little out on the periphery”.
81. I am satisfied that the applicant has been relatively consistent in pointing out to medical practitioners where she perceived the site of the injury to be and the symptoms arising from it – ie at the top of the shoulder near the junction of the shoulder and the neck and downwards along the shoulder blade.
82. Although the focus of attention was initially on the upper shoulder region, I am also satisfied, and I find, that the applicant’s neck was also a feature from an early stage. Although Dr Woo’s notes show that he found no neck abnormality, the physiotherapist to whom he referred the applicant treated her neck and shoulder. The absence of Dr Woo’s normal referral document to the physiotherapist was not explained and may well have thrown valuable light on what Dr Woo asked the physiotherapist to do. It remains the case, however, that the physiotherapist formed the view that the neck was an issue and required treatment in early March 2000.
83. In addition, on 16 March 2000 Dr Barrie diagnosed lower cervical or cervicothoracic junction facet joint strain with paraspinal muscle spasm and on 3 April 2000 referred to an aggravation of neck pain at work on 30 March 2000. I note also that the applicant described neck pain to Mr Lee, a psychologist, in June 2000 in terms that are referred to above.
84. It is relevant also to note that for some months after February 2000 the applicant continued to work most of the time and, although her duties were restricted to some extent, she continued to sort mail. On 8 March 2000 Dr Low specified that she was not to sort more than 6 tubs of mail per hour, a quantity that exceeds the respondent’s normal sorting rate. In such circumstances it is not surprising that the applicant might have aggravated whatever her condition was, which appears to have been the case at the end of March and in November 2000.
85. Overall, I am satisfied that the applicant had neck and cervical spine problems from shortly after the February injury and persisting thereafter, even though there has been no subsequent agreement between medical practitioners about the precise diagnosis for such conditions. Various possibilities have been advanced including those based on nerve irritation and sensitisation and referred pain, through to local or regional soft tissue conditions. Changes to posture to compensate for shoulder pain were also identified by several practitioners, and Dr Lethbridge said that he thought this was still the most likely viable explanation for the neck pain.
86. At the same time, there have been divergent views about whether or not the applicant’s conditions, as they evolved, were the result of the February injury. Dr Lethbridge thought they were not and the respondent’s other specialist witness, Dr Grainger, although believing the applicant had no significant neurological problems, considered it likely that the applicant had stretched muscle fibres in the right trapezius and possibly paraspinal muscles near the C7 vertebrae. I note that Dr Lethbridge did not have access to Dr Barrie’s progress certificates after the first one of 16 March 2000. As noted above, the subsequent certificates contained a number of references to neck pain and, for that reason, I prefer the views of Drs Salmon, Finch, Skirving and Home - who all considered that the applicant’s conditions as they presented over the years since 2000 were a consequence of the February injury.
87. In a case such as this, where the present issue is whether the applicant (who was in receipt of compensation pursuant to the original decision to accept liability) had ceased to be eligible for compensation, the maker of the decision under review, and the Tribunal, must be persuaded on the evidence that an entitling qualification had ceased to exist: see Commonwealth v Borg (1991) 20 AAR 299, Re Demosthenous and Comcare [2001] AATA 949, 66 ALD 323. The evidence before me in this case does not satisfy me that the applicant had ceased to be incapacitated as a result of the February injury. Rather, on the evidence available to me and as outlined above I am satisfied that the applicant suffered an injury to her shoulder and neck in February 2000, that she suffered from depression as a consequence thereof, and that at 16 December 2000 and thereafter she remained incapacitated for work as a result of those injuries.
88. Accordingly, for the reasons above, my decision in relation to the causation issue is that the reviewable decision made on 23 March 2001 must be set aside.
The Hours of Work Issue
89. I have referred above at para 22 and 23 to the issue of the correct hours of work to be used when calculating the applicant’s entitlement to compensation under s 19 involving two periods, the first being the period up until 7 January 2001 and the second being the period thereafter.
90. It was not in dispute that the applicant experienced periods of incapacity for work as a result of the February injury and that for various periods of time she was permitted to work only restricted hours or on restricted duties. There is no dispute between the parties concerning the periods of incapacity but there is dispute about how the entitlement for compensation is to be calculated – in particular the number of hours each week to be used for those calculations.
91. It was not in dispute that the applicant was engaged by the respondent as a permanent part-time employee and that her “normal” hours of engagement were 20 hours per week. However, it was also not in dispute that for extended periods of time prior to February 2000 the applicant was required to, and in fact worked well in excess of 20 hours each week hours as required by the respondent.
92. Exhibit A1 is a schedule of hours worked by the applicant in the 12 month period up to 23 February 2000. The applicant was on leave until the beginning of April 1999 and so week 1 of the schedule is the week commencing 4 April 1999. Excluding a one-week period in July 1999 when the applicant was on sick leave for three consecutive days, the schedule reveals that the applicant worked on average 41.6 hours each week and that she worked for as few as 27 hours and for as many as 50 hours in particular weeks. On no week did she work 20 or fewer hours.
93. The starting point for consideration of the determination of hours is the latest period of two weeks before the date of the injury: s 9(1) of the Act. It was not in dispute that the latest period of two weeks before the applicant’s injury was the period of two weeks shown as weeks 45 and 46 in exhibit A1, in which the applicant worked 39.25 hours and 44.75 hours – an average of 42 hours per week.
94. The respondent contends that at this point it is necessary to apply the provisions of s 8(5) because the period of two weeks would not fairly represent the rate of which the employee was being paid before the injury and that, rather, a period of 12 weeks should be used. That is apparently a practice that the respondent adopts nationally. The respondent contends that the period of 12 weeks prior to the applicant’s injury in February 2000 produces an average weekly hours worked of 32.35 hours and that this is the rate used to calculate the applicant’s rate at the time.
95. It can be seen from the above paragraphs that the number of hours actually worked by the applicant in the two weeks prior to her injury is almost exactly the same as the average number of hours worked by her over the previous 12 month period – and is significantly in excess of the number of hours calculated in the 12 weeks prior to the injury.
96. In the present case the applicant has worked as a permanent part time employee for many years. As noted, although her “normal” hours are only 20 hours each week she has consistently been required to work many hours in excess of that figure. As has been observed in this Tribunal in many cases, the period over which the calculation under s 8(5) is to be made will vary according to the facts and circumstances of each case and that what is intended by sections 8 and 9 is to avoid a situation where an employee is disadvantaged or advantaged – and that the mechanism to calculate the entitlement must be construed as being fair to the employee; see generally ReZeguraand Comcare [1997] AATA 11555 and [1998] AATA 12740 and ReWest and Telstra Corporation Limited [2002] AATA 852.
97. In view of the fact that the hours worked in the two week period specified by s 9(1) is almost exactly the same as the average hours worked in the preceding year, I see no basis upon which it could be concluded that the period of two weeks would not fairly represent the rate at which the applicant was being paid before the date of her injury. Likewise, I see no reasonable basis upon which it could be concluded that the period of 12 weeks, in the circumstances of the present case, is a period that would fairly (or more fairly) represent the weekly rate at which the applicant was being paid.
98. Accordingly, I conclude that for any period of incapacity of the applicant up to and including 7 January 2001 the applicant’s entitlement to compensation under s 19 should be calculated on the basis that she worked 42 hours each week.
99. For the period from 8 January 2001 different considerations apply and the respondent relies on s 8(10)(a) to contend that the correct number of hours should be 20 each week – although as I have noted above the respondent’s final position was that for the period from about 1 December 2003 the number should be about 22 hours per week. The respondent contends that this is so because of the impact of technological changes in the applicant’s workplace that would have resulted in the applicant, had she not been injured and incapacitated, having her hours of work reduced to her “normal” hours of 20 hours per week from 8 January 2001.
100. As is the case in relation to ss 8(5) and 9(1), the underlying policy of s 8(10) is that an injured employee should not be worse off nor better off as a result of a work-related injury. The issue to be determined is what, but for the applicant’s incapacity, would be the level of income that she would receive in her work with the respondent and this requires a consideration of all the facts and the exercise of discretion in their interpretation: see generally Re Davies and Comcare (1994) AATA 9637 at [47], Re Spurr and Comcare (1999) AAR 424, Bortolazzo v Comcare (1997) 75 FCR 385 at 388. I turn then to consider the facts in relation to this issue.
101. Following the February injury the applicant continued to work night shifts doing a variety of tasks, but in early 2001 she was transferred to the day shift because of her incapacities and since that time has worked as an administration assistant, again undertaking a variety of tasks, none of which involves sorting. The applicant’s evidence was that up until February 2000 she had come to accept that her hours had changed to that of a full time worker because of the hours that she had been working for extended periods of time, although there was never any written confirmation of that. She always made herself available for hours beyond 20 hours per week. She said that from her own observations the volume of work at the RDC had not varied since 2001 and there was very little change to the work environment and volume of work as a result of what was called “mechanisation”. She said that in 2000 there were 10 full time equivalent positions for night mail sorting and this had remained the case until December 2003. By 2004 there were seven full time equivalent positions. The applicant said that after January 2001 there were about ten other people who had been brought in at various times to work on the night shift. Some of these had been part time day shift staff members and some had been casual workers. These workers were brought in early in the morning and carried on sorting after the part time night shift workers were sent home. She said that the full time night shift sorters had also carried on sorting and doing additional hours.
102. Ms Brown gave evidence that she had also worked on night shift with the respondent since 1997 and that although her normal hours were 20 hours per week she had usually worked many hours more than that, even when she was on light duties. She said that during 2001, when mail volumes increased after the Christmas period, the additional hours were not given to the part time night sorters but, rather, they were given to unskilled casual workers and also to day shift workers who started work early in the morning to sort mail and then went on to their normal day time duties. She said that the introduction of mail that had already been sorted into rounds did not have such an impact that it required the part time night sorters hours to be reduced back to 20 hours per week. To make sure that the sorting was completed the casual and part time day staff had been brought in at about 3.30 am or 4.00 am and would still be there sorting when she was sent home at 6.30 am.
103. Exhibit A12 is a schedule of the names of staff members who worked on night sorting at various times, including the permanent full time and part time workers as well as a number of other people who worked at various times. Ms Brown said that she recalled being quite annoyed seeing part time day delivery staff coming in to sort mail at night. She said that the list also included the names of a number of casual staff.
104. Ms Brown said that, essentially, the hours worked by the part time night sorters since January 2001 had remained at 20 hours a week although the respondent had “quietly” given those staff members a little bit of extra work because now that the mechanisation had been introduced, if there was any additional work then the part time workers would have the opportunity to stay back to do it. This had started from about Christmas 2003. Ms Brown confirmed that it was not now necessary for any hand sorting to be done because the mail delivered to the RDC was already sorted into rounds. Ms Brown said that she thought that the only reason that the hours of part time sorters had been cut back was because three of them were injured and had compensation claims. She had no proof of that but believed it to be the case.
105. Mr Gordon was employed as the supervisor of the night sorting team at the RDC for several years until August 2001 and supervised the applicant for three years. He said that the applicant was a very fast and accurate sorter and she regularly sorted seven trays of mail an hour, which compared with the minimum requirement of five trays an hour for a trained sorter. The team of which the applicant was a member was a very high performing one with a very low error rate of about 0.25 percent. In addition, Mr Gordon said that the applicant had a very positive attitude towards her work. She would swap and change duties as required.
106. Mr Gordon said that there was a general preoccupation with not having any unsorted mail left over at the end of the shift and this resulted in part time night sorters being offered extra hours as required. During the transitional phase of the new sorting frames the respondent had started to bring in part time day shift staff to work a few hours before they did their day time work. The number of people involved in the night shift had increased from the previous full time and part time workers to up to about 17 staff at one stage. The extra ones had been brought in to do two or three hours a night before they started their day duties.
107. Mr Gordon said that part of the reason why part time and casual staff had been used for night time sorting was that it would keep the night shift part timers to their core hours and that this was part of a strategy to remove any incentive injured part timers might have to not return to full duties. The strategy was to “starve out” injured workers because if they were reduced to their “normal” hours then they would have a greater incentive to recover. Mr Gordon said that the phrase “starve out” was one that he picked up listening to other managers at the RDC. He said that he understood that the strategy was that when the position was reached that all of the part timers were able to perform normal duties then they would be offered extra hours as required. Mr Gordon said that his direct supervisor was Mr Hill, who often spoke to him to make sure that he was not offering part time workers additional hours – and it was when he queried the reasons for this that he became aware of the strategy to influence the injured workers to make a quicker recovery. He thought it did not make sense to send experienced part time sorters home and use less experience day staff or casuals instead.
108. Mr Gordon said that the decision to bring in the day staff had been Mr Hill’s. He had been aware of talk about redundancies and of the need to move some people around between positions but he was not involved in any decision making of that kind. He agreed that some casual staff had been brought in to make up the night shift’s ability to complete its sorting because three of the staff members were on restricted duties. This was not particularly efficient as the casuals were not as efficient as permanent night sorters. Mr Gordon agreed that when the V-Sort frames had been introduced there had initially been some teething problems that involved having some extra sorting staff available, but that after these were sorted out the need for labour was reduced. However, from the various discussions that he had about sorting resources with Mr Hill, the only reason Mr Hill had given for restricting additional hours for night sorters was the need to reduce the incentive for injured workers to not return to normal duties.
109. Mr Gordon gave evidence of a conversation he had with the Area Manager, Mr Newbold, at a training session at Bibra Lake sometime between January and August 2001. Mr Gordon said that he had asked Mr Newbold for clarification of the reasons for limiting the hours of night sorters. It didn’t make sense to him to deprive people who were capable sorters of extra work. He did not agree that Mr Newbold simply told him that the reduced hours was one of the consequences of the mechanisation process. Rather, the impression he got was that the intention of the strategy was to “starve out” the injured workers and provide an incentive to get them back to normal hours.
110. Mr Newbold was the respondent’s Area Manager until late 2002 and was responsible for the RDC. He described himself as a very “hands on” manager and said that he spent a considerable amount of time at the RDC.
111. Mr Newbold described the introduction of two types of technology. The first involved the installation of different sorting frames for use by postal delivery officers (“PDOs”) and which had reduced the time they needed to put mail into street and number sequences. This meant that PDOs had more time to actually deliver mail and as a result the areas for delivery rounds were increased – with the consequence that there were fewer rounds and fewer PDOs were needed, and some became surplus to requirements.
112. The second technological change was that new technology was introduced at the Perth Mail Centre (“PMC”) that enabled (by optical character recognition) some types of mail to be machine-sorted directly into rounds. This meant that the staff at facilities such as the RDC no longer had to do a primary sort of mail into rounds and this resulted in a reduction of the time and labour needed to conduct the primary sort of mail. The changes involving the reduced sorting by PDOs had started in 1999 and the mechanised round sorting was introduced during 2000. Mr Newbold said that these changes were occurring all round Australia and people in positions such as his were required to oversee the implementation of the changes and to manage the resulting impacts upon employees. The changes referred to above involved investments of hundreds of millions of dollars by the respondent and there was an expectation that there would be consequential gains from the process in terms of numbers of staff employed and other costs.
113. Exhibit R7 is a bar graph produced by Mr Newbold that shows the percentages of mail received at the RDC that had already been sorted into rounds. The first month covered by R7 is July 2000 and shows that 25.4 percent of all mail received from the PMC had been sorted into rounds at the PMC and that this represented 19.8 percent of the total mail received at the RDC. Over the following months the proportion of the mail received from the PMC that had already been sorted into rounds increased to over 60 percent (in April 2001) representing 42.5 percent of all mail received and the corresponding percentages for each month up to June 2004 showed an increasing trend – with in excess of 70 percent of mail received from the PMC now being round-sorted before it arrives at the RDC. Mr Newbold said that the consequence of this was that there was now greatly reduced primary sorting of mail at the RDC by night shift sorters. This had in turn reduced the requirement for night sorters at the RDC and had resulted in other changes – such as the cancellation of all sorting on Saturdays. Mr Newbold said that similar adjustments had been made all round the country, although the actual impact of the technological changes had varied from place to place. For example, in Bunbury, which was another centre for which he was responsible, there had been a complete cessation of all sorting and all sorting for that area was now done in Perth.
114. Mr Newbold said that as a result of the changes affecting the day time PDOs some of them had become surplus to requirements and he had therefore considered how they might be re-employed in other parts of the RDC or elsewhere. At around the same time he had become aware, from various performance measures, that the total amount of labour being used for night sorting at the RDC seemed out of balance for the volumes and types of mail items being sorted. In consultation with other managers and affected employees he had decided that a couple of day shift PDOs would be transferred to night shift work. At the same time he had made known to Mr Hill, the manager of the RDC, that he expected action to be taken to reduce the total amount of hours of labour utilised for night work. He denied that there was any strategy devised by he and/or Mr Hill to “starve out” any injured workers on the night shift, although he said that he was aware that were several workers who were on restricted duties and that this must have been having some impact on the performance of the night shift. Mr Newbold said that any reduction in the number of hours available for part time night shift workers as a result of these changes was merely a consequence of the changes and was not the underlying motivation for them. He denied that he had ever used the phrase “starve out” to Mr Gordon, nor had he ever heard any other manager use such an expression or any similar expression. Mr Newbold said that he was unaware of any specific decision having been made to limit the additional hours of night sorters. However, he said that he had made it very clear to his managers (in particular Mr Hill) that he expected a significant reduction in the usage of additional hours and overtime in the night sorting group.
115. Mr Newbold said that he did not particularly recall discussing with Mr Gordon the question of changes to working hours, but he subsequently said that Mr Gordon had tried to put some pressure on him to change the rule about no additional hours being offered to night sorters. He said that he would have tried to explain to Mr Gordon that if additional resources had been added to the system overall (such as the new technology and the movement of some day staff to the night shift) then changes to other work practices would have to occur.
116. Mr Newbold said that one of the day shift workers that he had arranged to go to the night shift had been a casual part time employee for some years and, in accordance with the respondent’s general management guidelines regarding the use of casual employees, he had felt obliged to make that officer permanent prior to moving him to the night shift.
117. Mr Newbold said that he was not aware whether the RDC night shift sorters had met the respondent’s service standards for sorting, but that in terms of hours of labour utilised the night shift was identified by him as a problem area. Mr Newbold said that he couldn’t say exactly how many full time equivalent staff members were involved on night shift work in January/February 2000 or thereafter.
118. Mr Newbold said was not aware of the use of part time day shift PDOs being used in the early hours of the morning to sort mail so that the part time night shift sorters could be sent home at the completion of their normal hours. He could not confirm if any day time officers were used at night for this purpose. Likewise, Mr Newbold said that he was not aware of any casual staff being used to sort on the night shift. He did not accept that it had happened in any significant way and he would be aware if it had happened regularly.
119. Mr Newbold said initially that in the period from about 1999 up to October 2002 the volumes of mail processed at the RDC had been about constant, but he subsequently said that there had been an upward trend. He agreed that the area was a growth area and that new suburbs or estates had been opened.
120. Mr Newbold agreed that he had not produced for the Tribunal any statistics or data that showed in any detail the numbers of employees used in the night shift or the numbers of hours of labour utilised on the night shift over the relevant periods of time. He said that in fact there had been a reduction in hours utilised in the night shift.
121. Mr Newbold said that he became aware in about May to August of 2000 that there was a problem with the sorting of mail at the RDC and he concluded that, although there were a range of issues, the number of employees on restricted duties was causing concern and this was resulting in the use of casual staff. At the same time, about August 2000, he started to get a clear picture of the impact of the technology changes and the extent to which staff might be surplus to requirements. Mr Newbold would not or could not agree whether the timing of those two things was a coincidence, but nor would he acknowledge that the two things were independent of each other.
122. Mr Newbold said that he was aware the night sorting team at RDC had been nominated for an excellence award in 1999 but he could not recall the specifics of it.
123. I observe at this point that I found Mr Newbold an unconvincing witness in the sense that he consistently answered questions in a very roundabout way and frequently modified his position on important points. I do accept that he was a very hands-on manager and for that reason I consider that he was much more aware of what was happening at the RDC, and was more involved in the decision-making that occurred in relation to staff, than he was prepared to concede. I consider that there was a great deal more evidence that he could have given that would have assisted in the resolution of this issue. I generally accept Mr Newbold’s evidence concerning the timing of the introduction of the new technology and work equipment and I accept that, because of the money invested in those changes, there was an expectation that there would be some changes to employee numbers and the allocation of employees between various duties. I accept that, all other things being equal, some day shift employees may have become surplus to requirements because of the changes to the sorting requirements of day shift PDOs and I also accept that the requirement for sorting staff at night may have been reduced by the sorting of mail into delivery rounds before it arrived at the RDC.
124. What is regrettable, however, is that despite the obvious relevance the respondent chose not to produce to the Tribunal any evidence about what actually happened to the total amounts of labour required and utilised at the RDC in various work groups (day and night shifts) over the relevant period. It was apparent from Mr Newbold’s evidence concerning the analysis he had done about comparing hours of labour utilised and volumes of mail processed, that relevant statistics and data would be available. In those circumstances it seems to be that it would have been entirely possible for the respondent to produce reliable information concerning the identity of personnel who worked night shifts at the RDC over the last few years and the total number of hours employed within that and other functions. If Mr Newbold’s evidence that there has been a reduction in total hours of labour utilised is correct then it would be easy for the respondent to demonstrate that. In this context I observe also that, apart from the absence of statistical data, the respondent has chosen not to adduce any evidence from RDC managers who could be expected to have direct knowledge of the personnel who were engaged on the day and night shifts at the RDC – or transferred between them – and who may have been able to assist the Tribunal understand better the circumstances that prevailed in a way that Mr Newbold was not able to do. Mr Hill is an obvious possibility to give such evidence.
125. On the other hand, I have evidence from the applicant, Ms Brown and Mr Gordon, that new full time and part time staff had been appointed to the night shift team, that day shift PDOs have been regularly used to work hours before the commencement of their day shift on sorting and other duties and that casual staff have frequently been employed to work on the night shift. I accept that evidence, but I am not in a position to assess the competing opinions about the total labour requirement for the night shift. I also have evidence that mail volumes at the RDC have trended upwards and that new suburbs/estates have opened in the area serviced by the RDC. I accept all that evidence, but what I do not have is evidence about whether increased mail volumes and areas to be serviced has required the allocation of additional labour resources or negated the desired reduction in labour resources from the technological changes. Given that state of the evidence, I am prepared to draw the inference that the evidence of witnesses who might have been called by the respondent would not have helped the respondent’s case: Jones v Dunkel (1959) 101 CLR 298.
126. I do not accept Mr Newbold’s evidence that the reduction in hours for the part time night shift staff was merely a consequence of other decisions made to deal with the impact of the technological changes. It is clear from Mr Newbold’s evidence that he was aware that there were workers on restricted duties as a result of injuries and he believed that these restrictions had a negative impact on the ability of the night shift team to perform to the standards he expected. I accept Mr Gordon’s evidence that he gained the belief from talking to other managers of the respondent, in particular Mr Hill and Mr Newbold, that the decision to limit night shift workers’ hours was at least partly intended to give those workers an incentive to resume normal duties. I am satisfied that there was within the management structure of the RDC a strategy that was at least in part designed to deal with a perceived problem of injured workers being paid for more hours than they actually worked and to reduce or remove the number of injured workers working on restricted duties.
127. I base that conclusion primarily on my assessment of the evidence of the applicant, Ms Brown, Mr Gordon and Mr Newbold. However, I consider that the conclusion is supported by two other matters. The first is that in his report to the respondent of 15 December 2000 (T60) Dr Low referred to the applicant have a lack of financial incentive to return to work because she was working 17 hours a week but being paid 32 hours a week. It is apparent from all the evidence that Dr Low worked closely with management of the respondent and that the issue of workers on restricted duties not having an incentive to resume normal duties was of concern to RDC management. This view is reinforced by a statement by Dr Barrie (R3 pg 38) that in early 2000 he had met with Mr Hill and Ms Harmsen, the Rehabilitation Case Manager of the respondent, and he had been informed that the respondent was concerned about the rate of injury to workers at the RDC and a perception that the majority of these workers were not participating proactively in their return to work programs. The applicant had been referred to, but Ms Harmsen had told Dr Barrie that she was not one of the “problem” cases. Dr Barrie was not cross-examined in relation to that point.
128. The second matter concerns evidence of the applicant in which she described several incidents in which Mr Hill attempted to humiliate her because of her incapacities and to pressure her to resume normal duties (see exhibit A2 at paras 251-264, 353-369 and 458-475). The applicant was not cross-examined regarding these incidents and Mr Hill did not give evidence. I accept the applicant’s version of the incidents.
129. For s 8(10) of the Act to be applicable in the present circumstances I would need to be satisfied that, from 8 January 2001, the amount per week the applicant would receive pursuant to s 19 of the Act, calculated on the basis of 42 hours per week, would exceed the amount the applicant would otherwise receive in her employment by the respondent if she were not incapacitated – because, on the respondent’s case, the applicant would work only 20 hours (and later 21 or 22 hours) per week. I am not so satisfied. The respondent contends that s 8(10) is applicable but has not provided evidence that satisfies me that is the case.
130. In essence, the evidence relied on by the respondent to support its case is that technology changes meant that there would be some changes to labour requirements overall and that, in fact, the night shift part time workers were reduced to 20 hours per week. I have concluded that, although the respondent’s managers at the RDC had some consequences of the technology changes to deal with, a substantial motivation for the reduction in hours for the part-time staff such as the applicant was to address a perceived compensation problem. In my view such a strategy was quite inappropriate for the respondent to adopt.
131. Second, although no party in the proceedings bears any formal onus of proof, there is no evidence before me that demonstrates that an appropriate response to the impact of the new technology was a reduction of the part-time night shift staff to 20 hours per week or any other number of hours. The impact on those workers of the respondent’s strategy is obvious – but there is no evidence of the impact of the technology overall or of the respondent’s actual utilisation of labour on the night or other shifts. Evidence of the actual labour utilisation at the RDC before and after January 2001 would have enabled me to assess what hours the applicant may have worked after January 2001 had she not been incapacitated. I am satisfied from the evidence of the applicant and Mr Gordon that the applicant was a good and fast sorter and was positive and flexible in her attitude to work. I have no reason to doubt that had she not been incapacitated she would have been capable of, and available for, any duties and hours of work the respondent may have requested of her – as a night shift worker or otherwise.
132. The existence of the respondent’s inappropriate strategy to deal with the perceived compensation problem and the absence of data that demonstrates that a reduction to 20 hours per week (or any other number) was an appropriate response by the respondent means that I am not satisfied that the requirements of s 8(10) are made out. I am not satisfied on the evidence before me that the 42 hours per week that I considered applicable to the calculation of the applicant’s entitlements in the period up to 7 January 2001 would be inappropriate for the period from 8 January 2001. I am not satisfied that the applicant’s entitlement to compensation after that later date should be calculated by reference to 20 hours per week (or 22 hours from 1 December 2003). The 42 hours per week as determined pursuant to s 9(1) above should be used.
133. For the reasons set out above (in relation to the issues of causation and hours of work) my decision is that:
a.The reviewable decisions made on 23 March 2001 (the subject of proceedings W2001/375) and 18 May 2004 (the subject of proceedings W2004/183) are set aside. The matters are remitted to the respondent for reconsideration and determination of the applicant’s entitlements to compensation under ss 16 and 19 of the Act with the following directions:
i.The applicant is entitled to compensation under sections 16 and 19 of the Act in respect of a physical injury to the right neck and shoulder sustained in the course of her employment on 23 February 2000 and for the mental injury of depression as a consequence thereof;
ii.For all periods of incapacity for work between 23 February 2000 and the present date the applicant is entitled to compensation under section 19 on the basis of normal weekly earnings for a night mail sorter working 42 hours per week;
b.Pursuant to s 67(9) the costs of the two proceedings incurred by the applicant shall be paid by the respondent.
I certify that the 133 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Allen.
Signed: .....................(N H Wee)...........................
AssociateDates of Hearing 9 – 13 August 2004, 8 December 2004
Date of Decision 5 August 2005
Counsel for the Applicant Ms C Crawford
Solicitor for the Applicant Mr N Whitehead
Counsel for the Respondent Mr M Greenland
Solicitor for Respondent Mr C McMahon
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