Sivapalan and Australian Postal Corporation
[2008] AATA 98
•7 February 2008
Administrative Appeals Tribunal
INTERLOCUTORY DECISION AND REASONS FOR DECISION [2008] AATA 98
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2006/820
) No N2006/821
GENERAL ADMINISTRATIVE DIVISION ) No 2007/774 Re KAMALAMBIKAI SIVAPALAN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
INTERLOCUTORY DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Member, Dr MEC ThorpeDate7 February 2008
PlaceSydney
Decision 1. The parties are allowed to make further submissions to the Tribunal on the form of the decision for each application and the question of costs, based on the findings in these reasons for interlocutory decision.
2. The parties are to advise the Tribunal, within 14 days of the date of this interlocutory decision, whether it is necessary to list the matter for further argument. If the parties can agree on the appropriate decision and costs order, it will not be necessary to re-list the matter for hearing.
.......................[sgd].......................
Presiding Member
Senior Member, Mrs Josephine Kelly
CATCHWORDS
COMPENSATION – Australian Postal Corporation – carpal tunnel syndrome - applicant employee - claim for right arm strain – claim for aggravation of right hand carpal tunnel syndrome – liability for medical expenses for right hand carpal tunnel syndrome accepted – whether liability ceased - whether applicant continued to suffer from any injury or aggravation of any injury – medical evidence considered – symptoms of carpal tunnel syndrome present - held applicant had mild carpal tunnel in right wrist – epidemiological studies about relationship between repetitive and forceful work and carpal tunnel syndrome considered – clinical investigations, neurophysiology, and imaging considered - injury constitutional - applicant had temporary aggravation of carpal tunnel syndrome which was materially contributed to by employment – effects of injury ceased August 2005 - temporary aggravation of carpal tunnel syndrome the only injury to right arm arising from employment - parties to make further submissions on final decisions and costs – further hearing to be listed
Safety, Rehabilitation and Compensation Act 1988 ss 14, 16, 19, 24, 27, 62
Comcare v Sahu-Khan (2007) 156 FCR 536
Commonwealth Banking Corporation v Percival (1988) 20 FCR 176
REASONS FOR INTERLOCUTORY DECISION
7 February 2008 Senior Member, Mrs Josephine Kelly
Member, Dr MEC ThorpeSUMMARY
1. Mrs Sivapalan is a 44 year old lady who began working for the Australian Postal Corporation (“Australia Post”) in February 2001. In May 2005 she suffered an injury ("the injury") which she described in her claim form as "right hand wrist and first three fingers very painful”. As of 7 March 2007, Australia Post's position was that in May 2005 she had suffered from a right arm strain, which was contributed to by her employment with the Corporation, and that she suffered from a temporary aggravation of carpal tunnel syndrome (“CTS”) contributed to by her employment in or about May 2005. However, any such strain or aggravation had come to an end by 6 March 2006 and therefore she was not entitled to any compensation from that date for medical expenses, incapacity or permanent impairment.
THE ISSUES
2. The issues before us were whether Mrs Sivapalan continued to suffer the effects of the May 2005 injury to her right arm, however described, after 6 March 2006; and if so, whether she is entitled to compensation for medical expenses, incapacity and permanent impairment.
3. For the reasons that follow, we do not consider that Mrs Sivapalan continued to suffer the effects of the May 2005 injury after August 2005. Australia Post did not argue that the effects of the injury had ceased earlier than 6 March 2006. Therefore, we think that the preferable decision on that aspect of the case is to affirm that part of the reviewable decision which found the effects of the May 2005 injury ceased by 7 March 2006. We would vary that decision in respect of the diagnosis because we do not find that Mrs Sivapalan suffered a strain to her right arm but only a temporary aggravation of CTS. We propose to allow the parties an opportunity to address us about the appropriate form of the decisions to be made in each application based on our findings, which are set out in detail below, and also to address the question of costs.
THE DECISIONS UNDER REVIEW
4. There were three proceedings before the Tribunal: N2006/820, N2006/821 and 2007/774.
5. In proceedings N2006/820, the reviewable decision is dated 22 May 2006. (The copy filed with the application to the Tribunal is dated 30 May 2006, however the terms of the decisions are the same). The decision varied a determination of 7 September 2005 which had ceased liability, and found that compensation was payable under s 16 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) for reasonable medical expenses incurred in the treatment of right arm strain (but not CTS), and that liability continued until 6 March 2006 and that:
as at 7 March 2006, and since that date, there has been no liability to pay compensation under any provision of the Act in relation to right arm strain or any other injury or condition of the right arm/hand.
6. In proceedings N2006/821, the reviewable decision was made on 21 June 2006 in response to a letter about the 22 May 2006 reconsideration. The decision-maker was not satisfied that Mrs Sivapalan's employment had contributed to her right CTS and was not prepared to change the May 2006 decision. Both of the 2006 applications for review were filed on 6 July 2006.
7. The reviewable decision in proceedings 2007/774 was made on 7 March 2007. It was a reconsideration at Australia Post’s own motion, pursuant to s 62(1) of the Act. It varied the determinations of 21 June 2005 (this should be 23 June 2005) in which Australia Post had accepted liability under s 14 of the Act for mild right CTS made symptomatic by employment, and 7 September 2005, and replaced the previous decision of 22 May 2006 (the subject of proceedings N2006/820). In summary, the decision was that:
(a) The applicant suffered from a right arm strain in May 2005 which was contributed to by her employment;
(b) In addition, in May 2005 the applicant suffered from CTS, a temporary aggravation of which was contributed to by her employment with Australia Post in or about May 2005;
(c) Any right arm strain or aggravation of CTS in May 2005 which was contributed to by her employment came to an end by 6 March 2006; and
(d) The applicant is entitled to medical expenses and weekly payments of compensation (if applicable) in respect of any treatment or time off work resulting from the right arm strain between 4 May 2005 and 6 March 2006 inclusive. There is no present liability under sections 16, 19, 24, 27 or any other benefit provisions of the Act to pay compensation in respect of right arm strain or aggravation of carpal tunnel syndrome.
THE CASE FOR MRS SIVAPALAN
8. It was argued on behalf of Mrs Sivapalan that she has continued to suffer from the effects of her previously accepted right hand/arm condition since 6 March 2006 to the present, and is therefore entitled to compensation for medical expenses and incapacity. In particular, it was argued that she suffers from CTS which arose out of or in the course of her employment, or in the alternative, was aggravated by her employment. In the event that she was successful, it was submitted that the matter should be remitted to Australia Post to determine her entitlement under those sections.
CONSIDERATION
Mrs Sivapalan's Symptoms
9. Mrs Sivapalan moved from Australia Post's St Leonards facility to the Sydney West Letters’ Facility in 2003. She filled out a compensation claim form on 13 May 2005. The details of the event she gave were:
I was facing up the mail on CFC No. 8 on the middle stacker. I suddenly feel severe pain on my Right Hand wrist & First Three fingers. The pain became more severe & leads towards Right Shoulder.
10. Mrs Sivapalan has also claimed compensation for her left hand, although that matter is not presently before us.
11. During her oral evidence, Mrs Sivapalan said that she had suffered pain in her wrist, right hand and right shoulder before starting at Australia Post, however the pain she suffered at Australia Post was more severe and continuous. Before filling out the compensation form, the pain was present every now and then, but at the time she filled out the form it was too much. She said that since she filled out the claim form, she has suffered more pain than before. Her treatment after filling out the claim form was to use a splint when she goes to sleep, and physiotherapy until 30 June 2005, when Australia Post refused to fund any further physiotherapy on the advice of Dr McGill. She was put on restricted duties thereafter.
12. She said that her pain is the same when sorting and sometimes worse if she has to cancel thick mail by hand. The pain since March 2006 is still the same as it was before that.
13. Mrs Sivapalan said that she is unable to hold objects like the telephone in her hand for a long time. She described having pain in her right forearm, a clicking sound when it is pressed, and when she is cold she drops things like a cup or mug and cannot lift it. She uses her left hand to lift the kettle but also has pain in her left hand. After several months she also had pain in her right forearm and then in the shoulder. She felt pain in her left wrist especially when doing face up work.
14. She has had cortisone injections in her right shoulder, in February 2007, and in her left wrist in August 2007, however the injections did not help.
15. At the time of the hearing she had been at home for one month. She was taking mobic tablets. She also took panadol. She said that she had pain in her shoulder, elbow and hand while sitting at the hearing.
Mrs Sivapalan's Pre-injury Duties
16. On the evidence, which included a DVD video made in March 2007, we find that, before the injury, Mrs Sivapalan worked five hours per day, five days per week, from 7 pm until midnight. She worked at the Culler Face Canceller (“CFC”) machine for up to 5 hours, with occasional mail sorting of irregular mail and also sorting performed at a Manual Modular Frame (“MMF”).
17. The CFC "faces up" small letters so the address and stamp are visible, and "cancels" the stamp. Australia Post argued that staff rotated between various tasks on that machine. However, we accept Mrs Sivapalan's evidence that before May 2005 her task was mainly removing the letters from the CFC after they had been processed, and placing them in letter trays and then placing the trays onto trolleys.
18. After working on the CFC, she sorted mail that was unsuitable for automated processing which placed into a bin on wheels for manual face up and hand cancelling. Hand cancelling involves running a hand-held roller across the face of the envelope. This duty is performed while standing next to the CFC machine. The mail is also placed into small letter trays which are taken by trolley for manual sorting.
19. Manual sorting occurred at the MMF, which comprises four modules of sorting apertures which wrap around the sorter. A swivel chair is provided, which may be adjusted as to height and back support. In general terms the sorter takes a handful of letters in the non-dominant hand from a three-tier tray rack located near the frame, and then sorts them into the apertures with the dominant hand.
20. She had one 15 minute break each shift.
What Happened After the Injury?
21. Mrs Sivapalan did not have a long period off work after the injury, rather she had days off here and there. A work place assessment was carried out on 11 May 2005 and a return to work program was organised for the period 11 to 18 May 2005, with duties being face up and MMF sorting. Dr Bala had not specified restrictions. The Occupational Health and Safety officer made recommendations of lifting up to 4 kg (half small letter tray), minimal use or right hand and minimal push/pull (push empty trolleys only), of alternating the use of right hand for 30 minutes then left hand for one hour when doing face-up, and of using the left hand when MMF mail sorting.
22. Subsequently, a rehabilitation program was arranged and amended, with the consequence that Mrs Sivapalan was to resume full duties on 22 August 2005. There was a gradual increase in duties including on the CFC machine from 1 hour per day until Dr Bala certified her fit for pre-injury duties on 16 August 2005. We infer from the evidence that Mrs Sivapalan returned to her pre-injury duties on that date. A decision was made ceasing liability on 7 September 2005.
23. On 6 October 2005, following an incidence of pain in the right forearm, Dr Antoun determined that Mrs Sivapalan had muscle strain to the right forearm with a question of thromboplebitis which was not related to work. Further medical certificates specifying restricted duties were issued. The last we have is dated 6 February 2006.
24. It seems that, since October 2005, Mrs Sivapalan has done face up and cancelling of all reject mail from the CFC machine, with a lifting restriction of 8 kg when she places the mail trays on the trolley. She also does some MMF sorting. She takes panadol tablets before she goes to work.
The Medical Evidence
25. We found Mrs Sivapalan's recollection about her symptoms unreliable, although we understand that it maybe difficult to remember when and where pain developed, became worse, and spread into different areas of the body. The most reliable evidence is the contemporaneous reports to the numerous doctors who she has seen. Given the number of doctors and reports before us, it is useful to summarise the medical evidence.
Dr Bala
26. Dr Bala is Mrs Sivapalan's general practitioner. The doctor's clinical notes that were in evidence began in 1999. The first report of pain in the right side of the neck and in the right should region occurred in July 1999. Left arm pain lasting two months and right sided muscular chest pain occurred in November 1999. In 2001 Mrs Sivapalan had joint pains, and pain in both hands night and morning which was diagnosed as work related repetitive strain injury. Naprosyn was prescribed. In 2002, 2003 and 2004 she had right shoulder pain.
27. The first record of the injury that is the subject of these proceedings is Dr Bala's record of 4 May 2005. He recorded pain in the first three fingers of the right hand which could be work related, as she was a mail sorter carrying out repetitive movements. He wrote: “Reason for visit: right carpal tunnel syndrome.”
28. On 10 May 2005 nerve conduction studies were carried out by Dr Anand. The doctor concluded that the results were consistent with mild CTS on the right side. He also commented that, clinically, there was tenderness at the lateral epicondylar area of the right side which indicated concurrent lateral epicondylitis.
29. As noted above, Dr Bala certified Mrs Sivapalan her fit for pre-injury duties on 16 August 2005.
Dr McGill
30. Dr McGill saw Mrs Sivapalan at the request of Australia Post on 15 June 2005 and 26 October 2006. He prepared reports dated 15 June 2005, 9 and 25 July 2005, 26 October 2006, 19 May 2007 and 5 October 2007. He also gave oral evidence.
31. At the first examination on 15 June 2005, Dr McGill found various symptoms in her right arm. He diagnosed CTS on the basis of Dr Anand's neurophysiological study, numbness in the right thumb, index and middle fingers, particularly when relaxing or when in bed, and sensory alteration which included the median nerve distribution. He thought it reasonable to conclude that her symptoms were work related, as the type of work she did could produce a temporary effect on muscle soreness, CTS and tendonitis. She told him that her symptoms had improved but not resolved, however, he commented that most of her symptoms were not those usually experienced in CTS and there was uncertainty about the diagnosis.
32. In his 9 July 2005 report Dr McGill commented on X-rays of the right elbow, right wrist and ultrasound studies of the right elbow and right wrist. There was no significant finding given that her symptoms were only on the right side. He concluded that the CTS was not work related, and that Mrs Sivapalan should resume her normal work activities on a graduated return to work program. In his report of 25 July 2005 he explained that his reason for finding the CTS was not work related was the lack of any evidence of tenosynovitis and the nature of CTS. As Dr McGill made clear during his oral evidence, he was distinguishing between work causing CTS, that is, work causing the underlying pathology, and work causing symptoms temporarily.
33. When Dr McGill re-examined Mrs Sivapalan on 26 October 2006 she related widespread symptoms in her right arm and neck in the absence of any physical disorder to account for the symptoms. She also had occasional symptoms in her left arm about which she was vague. Again, she had symptoms consistent with right CTS – numbness in the right hand, most notable when she awakes from sleep, and sensory changes in the right hand. He expressed the opinion that the CTS was constitutional and unrelated to her work duties because of lack of change in her right hand symptoms following change from normal duties to light duties, and lack of clinical or ultrasound evidence of tenosynovitis. He considered her physical prognosis was good, but noted:
Her prognosis with respect to symptoms reporting is guarded in light of the disparity between her reported symptoms and the lack of objective findings.
34. Dr McGill reviewed various x-rays, and ultrasounds of Mrs Sivapalan's right upper limb in his report dated 19 May 2007. His opinion was that the normality of the MRI of the right wrist dated 13 February 2007, with respect to the possibility of CTS, indicated that, if she had some residual CTS, it was minor, and in the absence of tendonitis, tenosynovitis or other abnormality with the carpal tunnel, he did not believe that her mild CTS was work related.
35. In his final report of 5 October 2007, Dr McGill considered Professor Beran's reports of 14 September and 2 October 2007 and the neurophysiological studies performed by Dr Yiannikas of 26 September 2007. (Those reports are discussed in detail below at paragraphs [59] – [64]). Dr McGill agreed with Professor Beran that most of Mrs Sivapalan's symptoms cannot be attributed to CTS and, given that the recent neurophysiological studies:
showed no difference between the symptomatic right upper limb and the asymptomatic left upper limb and that the abnormalities in the median nerves were minor, further supports the conclusion that her symptoms are not due to carpal tunnel syndrome.
36. During his oral evidence, Dr McGill said that the signs of tenosynovitis in the 28 March 2006 ultrasound were of the extensor tendons in the back of the wrist, which have no bearing on CTS. He accepted that such tenosynovitis could be work related, however given her restricted duties and that it was reported in both arms, it was unlikely in this case to be work related.
37. During his oral evidence, Dr McGill said that it was reasonable to conclude from the Palmer et al and Moustafa et al meta-analyses referred to by Professor Sambrook (and discussed at paragraphs [46] – [57] in these reasons), that repetitive forceful activities, particularly with vibrating tools, increased the reporting of CTS. However, the nature of the studies cannot differentiate between a temporary increase in symptoms of an underlying condition caused by those activities and where the activities cause the condition. He said it was very difficult to say that repetitious flexion and extension was a risk factor for the development of CTS because it depends on the amount of flexion and extension involved, which was not revealed by the studies. He considered that the DVD of Mrs Sivapalan's work showed some wrist movement and a moderate degree of repetition, however, it was difficult to draw the line from the studies.
Dr Clark
38. On 22 September 2005, Dr Clark, orthopaedic surgeon, reported to Dr Bala. Mrs Sivaplan described the onset of pain in May 2005 being from around the right side of her neck, shoulder and down her arm with some tingling and numbness in a median nerve distribution in the hand. There was no weakness. On examination, he found that there was no abnormal or vascular sign and all joint movements were complete. There were various areas of tenderness down the forearm and around the base of her thumb. He said that Mrs Sivapalan had clinical and electrical evidence of mild right CTS and that the rest of her complaints appeared to be overuse, and recommended she undergo conservative management with stretching exercises. The carpal tunnel did not require release but that might be necessary if her symptoms deteriorated.
39. Upon review on 20 April 2006 Dr Clark gave more detail about his initial examination in September 2005. He advocated ongoing conservative management and expressed the opinion that Mrs Sivapalan was totally unfit for work of a repetitive nature such as sorting mail and that she required appropriate rehabilitation with an exercise programme including stretching and strengthening exercises.
40. Dr Clark saw Mrs Sivapalan again and reported to Dr Bala on 7 June 2007. In his view her symptoms had not improved since he had last seen her. He said that she had been performing the same job at work for five hours a day, which was supposedly light duties, but still requires repetitive use of her right arm. Lifting was involved. He noted recent nerve conduction studies which reported mild changes of CTS. It is not clear, but this may be the study referred to by Professor Sambrook below (at paragraphs [46] – [57]), which was not in evidence. Dr Clark did not consider that decompression of the median nerve would improve her symptoms and was of the opinion that she required modification at her work.
Dr Kapila
41. Dr Kapila, general, hand and micro-surgeon, saw Mrs Sivapalan on 14 and 28 March 2006 and 4 April 2006. He had a copy of the May 2005 nerve conduction studies. He agreed that CTS is mostly constitutional, but that the symptoms can be aggravated by repetitive use of the hand, and that tenosynovitis of the forearm muscles could arise from repetitively using the hand. At that time Mrs Sivapalan reported symptoms in her right hand, elbow, shoulder and neck, with numbness in the fingers in the distribution of the median nerve, sometimes waking her at night and that her symptoms were not improving. She had no problem with her left hand or arm. She was working five hours per day with 15 minutes break, repetitively using her hand as a mail sorter.
42. On 28 March 2006, following receipt of the ultrasound report, Dr Kapila's opinion was that Mrs Sivapalan had early CTS on the right hand side and tenosynovitis of the extensor muscles at the level of the elbow. He recommended a steroid injection at the levels of the wrist and elbow, and that she continue with physiotherapy, avoid repetitive use of her hand and arm and be under the care of a rehabilitation co-ordinator.
43. When he saw Mrs Sivapalan on 4 April 2006 she was having more pain in her neck, right shoulder, radiating down the arm and forearm to the radial side of the thumb. He expressed the opinion that she should avoid repetitive hard work, see Dr Clark, have physiotherapy, undertake hydropool therapy exercises, and rest for 10 minutes after every two hours for stretching exercises. She did not require surgery.
Dr Honner
44. Dr Honner, orthopaedic surgeon and specialist hand and upper limb surgeon, provided reports dated 7 March 2007, 15 August 2007 and 5 October 2007. He examined Mrs Sivapalan once on 7 March 2007. In his first report he diagnosed CTS of the right wrist based on a positive Tinel's sign on examination on 7 March 2007 and advice from the solicitors for APC that the nerve conduction studies of 10 May 2005 revealed mild right CTS and concurrent lateral epicondylitis. He also diagnosed bursitis with impingement of the right shoulder. On examination he found that her symptoms were much more widespread than seen in CTS and her complaints were much greater than the physical examination supported. He considered them to be constitutional in origin and not related to her employment but that she did have restrictions on her work which were not due to her employment. She was fit to carry out her standard hours 25 hours per week, avoiding prolonged use of the sorting machines, and not lifting greater than 6 kg in weight with either arm.
45. In his final report he noted the MRI that showed a small ganglion cyst but no abnormality in the carpal tunnel. He concluded:
On review of the whole situation it appears that whilst she might have had a mild carpal tunnel syndrome at the right wrist at one stage, this had resolved by the time that the electrical studies were performed on 26 September 2007 and I now consider that her possible carpal tunnel syndrome has resolved.
Professor Sambrook
46. Professor Sambrook, consultant rheumatologist, prepared a number of reports and gave oral evidence. He examined Mrs Sivapalan for the first time on 31 August 2006. He prepared a report dated 1 September 2006 in which he recorded her current complaints as being intermittent right sided neck and shoulder pain that occurred everyday and could last for two to three hours and which was worse with certain shoulder and neck movements. She had pain at the base of her right thumb, sharp in nature and present constantly, and intermittent numbness in the first three digits her right hand, which occasionally radiated into the forearm. The wrist and numbness symptoms seemed to be related to wrist activity. She was on restricted duties but still had to do some sorting which seemed to aggravate the condition. She had problems lifting heavy objects and needed help from her husband to do housework. She could not do keyboard work because of difficulty with fine motor skills. He felt that:
there may have been a small decrease in digital dexterity on the right side compared to the left but it was satisfactory.
47. Taking into account the neurophysiological evidence and some clinical features consistent with right carpal tunnel syndrome, Professor Sambrook thought that:
this most likely explains her wrist and hand symptoms, although provocation tests were negative. Although carpal tunnel symptoms can radiate proximally up the arm, I suspect there may also be some other pathology here.
48. Professor Sambrook's prognosis was that her condition appeared stable with no progression of symptoms. He stated:
Since her light duties continue to involve her doing some repetitive upper limb activity, it is difficult to know whether there would be further improvement should these activities completely stop, but there certainly is a possibility of that.
49. In his oral evidence Professor Sambrook referred to epidemiological studies of the association between repetitive work, especially repetitive manual activity and CTS. He noted that some studies are positive and some negative, and gave some reasons for the discrepancies. In his opinion, the most convincing evidence was that which summarised the literature,,that is, meta-analysis of published studies. As we understand it, meta-analysis combines the data from a number of different studies, often weighting the data according to how good each study was. He referred to one such study by Moustafa et al in 1998, which identified force and repetition as significant risk factors for CTS in the work place.[1] On that basis, he considered on the balance of probabilities repetitive manual work has been shown to be linked to CTS and concluded:
As such I think there is a probable relationship between her wrist symptoms and the numbness and her repetitive upper limb activity at work.
[1] Moustafa AF, Abbas MD, Abdelmonem A, et al. Meta-analysis of Published Studies of Work-Related Carpal Tunnel Syndrome. Int J AOccup Envrion Health, 1998; 4: 160-167.
50. He found that Mrs Sivapalan was currently unfit for repetitive upper limb activity and:
probably needs a completed [sic] change in her occupation from mail sorter.
51. On 2 January 2007 Professor Sambrook commented on the x-ray report of 4 December 2006. He found no evidence of degeneration of the cervical spine and no evidence of abnormality in the right shoulder. He repeated his opinion that Mrs Sivapalan had neurophysiological evidence of, and some clinical features consistent with, right CTS. He said that that would explain her wrist and hand symptoms and possibly her shoulder symptoms and that CTS symptoms can radiate proximally up the arm, but that she may also have an element of rotator cuff disease which the x-rays did not show.
52. Professor Sambrook prepared a further report dated 12 March 2007. He considered the ultrasound of the right shoulder performed on 23 January 2007. He considered that there was a mild abnormality which could not be related to work. In relation to the 13 February MRI scan of the right wrist, he noted the findings of the large ganglion cyst deep to the flexor carpi radialis tendon causing some lifting of the tendon and that the carpal tunnel was normal. He felt that CTS:
continues to provide an explanation for the ongoing symptoms of numbness in her right hand.
53. He thought that the ganglion may explain some of the pain of the base of the right thumb radiating into the forearm. He said that the exact cause of ganglions is unknown “but the consensus is that they often occur” following injury. He continued:
Occupations that require workers to excessively overuse certain joints such as the wrist and fingers may increase the risk of ganglion cyst.
54. On 19 June 2007 Professor Sambrook reviewed a nerve conduction study dated 29 May 2007 which he said showed continuing neurophysiological evidence consistent with CTS. That report was not in evidence.
55. In his report dated 8 October 2007, Professor Sambrook commented on reports of Professor Beran and Dr Stapleton. He also attached a 2007 meta-analysis study by Palmer et al.[2] He concluded that:
two independent well recognised research groups have found evidence by meta-analysis of an association between carpal tunnel syndrome and force and repetition at the wrist.
[2] Palmer KT, Harris EC, Coggan D, Carpal tunnel syndrome and its relation to occupation: a systemic literature review. Occupational Medicine 2007; 57: 57-66.
56. During his oral evidence Professor Sambrook said that the Palmer study was not as clear as the Moustafa study in relation to the independence of force and repetition as risk factors for CTS. When cross-examined Professor Sambrook conceded that he would have to go the papers to find out the definitions of repetition in the papers considered in the Mustafa study. Further, there were no postal workers in that study and he could not say that the level of repetition was significant. He also agreed that lots of people have a constitutional basis for CTS and suffer symptoms in their occupation, that is, an aggravation.
57. He concluded that, in Mrs Sivapalan's case, there were three pieces of evidence of CTS: the neurophysiological studies, numbness of the first three digits, and diminished light touch on the first and second digits.
Dr Stapleton
58. Dr Stapleton, hand surgeon, works full time as a medico-legal consultant. In his report dated 14 September 2007 he commented on five papers. His view may be summarised from his own paper presented in 2006.[3] Opinions that CTS is work related or related to repetitive movement or hard physical labour are not supported by the current knowledge of CTS. In his view, CTS is genetically predetermined, because of a space inadequacy at the wrist through which the median nerve passes. Other significant factors are menopause, diabetes, thyroid disease and obesity. CTS has nothing to do with occupation. It is not related to repetitive movement and there is no evidence that cumulative trauma, or trauma itself, provides any significant contribution to the condition. Dr Stapleton distinguished between symptoms suffered at a workplace and an understanding of the cause or aggravation of the pathological process that may be caused by flexing of the wrist. We did not find Dr Stapleton's evidence persuasive, given the other medical evidence that was before us.
[3] Stapleton MJ. Occupation and carpel tunnel syndrome. ANZ J Surg. 2006; 76: 494-496.
Professor Beran
59. Professor Beran, consultant neurologist, provided a comprehensive report on 14 September 2007, which took into consideration reports from Dr Bala, Dr Clark, Dr McGill, Professor Sambrook, various imaging studies, published literature and the DVD showing the work Mrs Sivapalan had performed. He took a history from Mrs Sivapalan that she became aware of tingling in the fingers of the right hand and pain on the dorsum of the right hand on 5 May 2005. Her then current complaints were of chest pain, left shoulder pain, pain in hands, difficulty sleeping and an inability to carry heavy weights. At that time she was doing light duties involving face-up work, manually cancelling mail with a heavy roller weighting 2 to 3 kg and then mail sorting while seated.
60. He found no objective signs of neuropathology and nothing that would categorically suggest the presence of carpal tunnel syndrome. His report stated:
Clinical examination was essentially normal and the symptoms are not classical of any neurological diagnosis… It appears from the material cited that much of the weight behind the diagnosis of carpal tunnel syndrome was the neurophysiology, performed by someone identified as a rehabilitation expert rather than a neurophysiologist.
61. The absence of neurological findings to suggest CTS, which was supported by a number of the reports, led him to suggest that Mrs Sivapalan should be referred to Dr Yiannikas for a repeat of the neurophysiology.
62. He did not consider that the activities shown in the DVD indicated repetition such as may be consistent with the emergence of CTS.
63. Mrs Sivapalan underwent neurophysiology testing by Dr Yiannikas on 26 September 2007. In Professor Beran's opinion the study showed some trivial increase in median versus ulnar palmar latency bilaterally. He did not believe that the findings supported the earlier neurophysiology and quoted Dr Yiannikas who stated "… the significance is doubtful". Professor Beran emphasised that the patient had only unilateral symptoms whereas the neurophysiology showed bilateral abnormality:
which again suggests that the symptoms are either exaggerated or do not contribute a basis for the diagnosis.
64. Professor Beran seems to overlook the fact that Mrs Sivapalan was complaining of pain in both hands when she saw him, which contradicts the foundation of his opinion. Further, while giving the opinion that she does not have CTS, the only treatment he prescribes - night splints - is for CTS, although on the basis that it is caused by her sleeping position and not her work. We did not find Professor Beran's evidence to be of much assistance.
Professor Simes
65. We also heard evidence from Professor Simes, Director of the National Health and Medical Research Council Clinical Trials Centre (“NH&MRC”). He is a medical oncologist and clinical epidemiologist. He gave general evidence about the methodology of meta-analysis studies. The NH&MRC has developed a series of criteria to assess the quality of the evidence in such studies. While of interest, Professor Simes' evidence did not assist us.
CONCLUSION
66. It is very important in these proceedings to remember what the issue is. It is whether, from 6 March 2006, Mrs Sivapalan continued to suffer symptoms caused by her work around 4 May 2005. Much of the medical evidence in this case was not directed to that question. We were not concerned with the impact on her right arm, if any, of the work she did after that date.
67. We prefer the evidence of Dr Bala, who certified Mrs Sivapalan fit to resume her pre-injury duties on 16 August 2005. We also prefer the evidence of Dr McGill, who saw her from June 2005. Dr McGill's opinion was provided clearly and based on careful assessment of Mrs Sivapalan's symptoms and the objective clinical investigations, including neurophysiology and the various kinds of imaging carried out.
68. We find that Mrs Sivapalan suffered mild CTS in her right wrist in May 2005. The medical evidence is persuasive on that question. We accept Dr McGill's evidence that, in Mrs Sivapalan's case, CTS was not caused by her employment, but is constitutional. Dr Kapila and Dr Honner were of the same opinion as Dr McGill. Professor Sambrook accepted that many people have a constitutional basis of CTS and suffer symptoms because of their occupation. We think this is such a case.
69. We find that Mrs Sivapalan suffered an aggravation of her CTS, that is, she suffered symptoms of CTS, in May 2005 which was contributed to in a material degree by her employment with Australia Post: Commonwealth Banking Corporation v Percival (1988) 20 FCR 176; Comcare v Sahu-Khan (2007) 156 FCR 536. It was a temporary aggravation that had ceased by 16 August 2005.
70. As the case for Mrs Sivapalan was put broadly at the hearing in terms of the injury to her right arm, "however described", we make the further finding that the temporary aggravation of the CTS was the only injury Mrs Sivapalan had suffered to her right arm as of 4 May 2005 arising out of, or in the course of, her employment.
INTERLOCUTORY DECISION
71. We propose to allow the parties an opportunity to address us about the form of the decision we should make in each of the proceedings, based on our findings, and to address the question of costs. If the parties can agree, there will be no need for a further hearing. The parties are to advise the Tribunal, within 14 days of the date of these findings, whether it is necessary to list the matter for further argument.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine Kelly and Member, Dr MEC Thorpe.Signed: Steven Mulipola
AssociateDates of hearing: 10 and 11 October 2007
Date of interlocutory decision: 7 February 2008
Counsel for Applicant: Mr D Richards
Solicitor for Applicant: Slater & Gordon
Counsel for Respondent: Miss R Henderson
Solicitor for Respondent: Forners Solicitors
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