Tran and Australian Postal Corporation
[2004] AATA 851
•13 August 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 851
ADMINISTRATIVE APPEALS TRIBUNAL )
) N2002/1942
GENERAL ADMINISTRATIVE DIVISION ) Re THI NGOC TRAN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal P J Lindsay, Senior Member , Dr J Campbell, Member Date13 August 2004
PlaceSydney
Decision The decision under review is set aside and in substitution the tribunal determines that Ms Tran continues to suffer from an injury to her right upper limb (neuropathic pain syndrome) and is entitled to compensation under s.14 of the Safety, Rehabilitation and Compensation Act 1988. She is presently entitled under s.16 of that Act to compensation in respect of medical treatment reasonably obtained in relation to her right upper limb pain. The respondent is to pay the applicant’s costs in accordance with the tribunal’s General Practice Direction.
..............................................
(Sgd) P.J. Lindsay, Senior Member
CATCHWORDS
COMPENSATION – right upper limb pain – liability accepted for right upper limb pain – applicant given restricted duties - respondent later decides applicant no longer entitled to compensation because nexus with employment did not exist – experts unable to provide definitive diagnosis of applicant’s complaints of pain – finding of ailment and material contribution by employment – decision under review set aside – liability for compensation exists - present entitlement to compensation for reasonable medical expenses – restricted duties to continue.
Safety, Rehabilitation and Compensation Act 1988 ss.4, 14, 16
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286
Comcare v Mooi (1996) 42 ALD 495
REASONS FOR DECISION
P J Lindsay, Senior Member, Dr J Campbell, Member 1. On 7 November 2002 Australian Postal Corporation (the respondent) made a reviewable decision that compensation was no longer payable under s.14 of the Safety, Rehabilitation and Compensation Act 1988 (the Act) to the applicant, Thi Ngoc Tran, in respect of her right upper limb condition.
background
2. Ms Tran’s G P, Dr Ngoduc, gave her a certificate on 19 November 1994 (T6) stating that she had suffered an injury on 22 August 1994 that the doctor described as “right arm pain/tendonitis right elbow”, the cause being “repeated use of right arm with indexing”. Ms Tran had been working on light duties since August 1994. By determination dated 21 December 1995 Australia Post denied liability for pain in the right arm (T9) principally on the basis that the medical evidence in support of the applicant’s claim was from November 1994, almost a year earlier than the claim for compensation, and the condition was considered not to be related to her employment. Dr Ngoduc referred her to Dr R Pillemer, orthopaedic surgeon, who reported on 30 January 1996 that he thought Ms Tran suffered from an overuse problem with her right upper limb. Australia Post arranged for her to be assessed by Dr J Chen, consultant in occupational medicine, on 1 February 1996. Dr Chen diagnosed myofascial pain syndrome and recommended the applicant avoid repetitive heavy manual handling and sustained postures of the neck and upper limbs and not lift articles exceeding 7 kgs.
3. Australia Post revoked the determination of 21 December 1995 and accepted liability for a right elbow injury on 8 February 1996 (T14). Ms Tran requested six weeks leave without pay from July to August 1997 to help care for her baby and two young children. At her request, when she resumed duties she worked only one day a week.
4. Australia Post arranged for Ms Tran to be examined by Dr R Chase, occupational physician, on 17 February 1999. Dr Chase did not think it probable that her non specific right upper limb pain resulted from her employment. As a consequence of Dr Chase’s report, on 1 March 1999 Australia Post determined that it was no longer liable to pay compensation for Ms Tran’s condition that was now described as ‘right arm tendonitis’ (T19). However, Australia Post accepted Dr Chase’s recommendation that the restriction in Ms Tran’s duties continue. In pursuing a reconsideration, Ms Tran again consulted Dr Pillemer, who examined her on 23 March 1999. On reconsideration, Australia Post revoked its determination of 1 March 1999. The delegate’s reconsideration decision of 27 April 1999 accepted that there was sufficient medical evidence demonstrating a continued causal link between her employment and her right upper limb symptoms and compensation was to continue (T24). Ms Tran resumed fulltime hours from 16 January 2000.
5. Dr Ngoduc certified her fit for restricted full time mail officer duties from 20 April 2002 to 21 October 2002. On 29 July 2002 the respondent referred her to Dr R Whittaker, consultant rheumatologist, for assessment. Australia Post then made a determination on 21 August 2002 that compensation was not payable under s.14 in respect of the injury to the applicant’s right shoulder (T29). This led Ms Tran again to consult Dr Pillemer. On 7 November 2002 Australia Post affirmed its determination of 21 August 2002 that it was no longer liable to pay compensation under s.14 of the Act in respect of the applicant’s right upper limb condition. It is this decision that is the subject of the application for review.
evidence
6. Ms Tran was born in Vietnam and is 46. She came to live in Australia in 1979. She is left handed.
7. Ms Tran first started working for Australia Post in July 1982, mainly doing mail sorting. Following a break in that employment, she rejoined Australia Post in 1989, eventually becoming full-time around 1990. Ms Tran described her work as including mail sorting, which involved being seated, picking up mail from a tray to her left and holding it in her left hand, then using her right hand to place it in pigeon holes 20 cm above her head. She also had to use her right hand while culling articles from the letter preparation line used for automated cancelling of stamps on small letters and while using an indexing machine that required her to load mail into a machine and then key in the postcode onto the article. Management regularly checked the rate at which operators coded their post. She filled trays with sorted mail. She moved and opened mail bags. She removed articles from a conveyor belt and sorted them into small letters, small parcels, large letters and parcels, and placed them in different bins. She worked at the dock and would lift trays of mail in the course of the activities. In cross-examination she agreed that during a shift of 7 hours 21 minutes she would be rotated through these activities, spending about 1½ to 2 hours at a time on each activity.
8. Ms Tran’s evidence was that tiredness in her right arm, soreness and occasional numbness in her fingers led her to lodge a P400 incident form in August 1994 though the form refers to an injury to both elbows suffered after doing indexing work (T7-19). She attended Dr Ngoduc. Ms Tran’s evidence at the hearing was that she had pain in the upper arm, shoulder, forearm and wrist, but not the elbow. She was put on light duties from29 August 1994 to 26 September 1994 (T10). Dr Ngoduc saw her on 19 November 1994 about right arm pain and parasthesia over the right hand, and she was again put on light duties between 19 November 1994 and 19 February 1995. On 20 February 1995 Ms Tran complained of significant right arm pain and Dr Ngoduc referred her for further physiotherapy. She was now back on full duties, including indexing, tipping the contents of mail bags onto a conveyor and transferring bundles of letters in trays onto trolleys. Ms Tran experienced pain in the right arm on 3 November 1995 and she lodged a claim for compensation (T7). Dr Ngoduc certified her fit for light duties, with no indexing of mail and a 7kgs weight limit on lifting, from 26 November 1995 to 4 December 1995. On 21 December 1995 Australia Post denied liability (T9) principally on the basis that the medical evidence in support of her claim was from November 1994, almost a year earlier than the claim and the condition was considered not to be related to her employment.
9. Following Australia Post’s denying liability on 21 December 1995, Ms Tran was referred to Dr Pillemer. The history was that the applicant’s pain varied from not too bad to very bad. Her symptoms became worse near the end of 1995, and he noted that she had been working restricted duties since November 1995 (T12). She did not refer to symptoms in her neck, and she had good range of movement of the cervical spine and upper limb joints. The main area of discomfort was the right trapezius region down towards her elbow and into her hand, with pins and needles in the fingers. Symptoms were made worse by repetitive use of her right upper limb and lifting heavy articles. Dr Pillemer believed her condition to be the result of the nature of her work which he noted was often very heavy and very repetitive. In his opinion, Ms Tran should remain on light duties and continue with physiotherapy. Because the applicant complained of numbness in the right upper limb and had some hypoaesthesia to pin prick in the median distribution of her right hand, nerve conduction studies might help to exclude an underlying carpal tunnel problem.
10. On 1 February 1996 Dr Chen reported that in July 1994 Ms Tran had felt tiredness in her right upper arm and elbow, which eventually spread to the right shoulder girdle and upper arm. In August 1994 there was pain in the right elbow when indexing. The pain in the right upper arm recurred in November 1995, again while indexing. Though on restricted duties in February 1996, she complained of intermittent pain on most days in the right upper arm and shoulder girdle, and less frequently in the right forearm and elbow. Dr Chen found no neurological abnormalities of the upper limbs and full movement in both shoulders, there being no evidence of rotator cuff tendonitis or impingement syndrome. Dr Chen stated “The history and clinical findings indicates myofascial pain syndrome involving the right shoulder girdle and in the right arm, around the elbow.” (exhibit A9). Dr Chen recommended that the applicant not lift large letter trays after sorting, no typing and no tipping, with a maximum one hour continuous operation of the letter preparation line. A weight restriction of 7 kgs was recommended.
11. Ms Tran returned to work in April 1997 following six months maternity leave. She said that she did not have pain in her right arm at the end of her maternity leave. In cross examination she was asked, if she did not have pain, why did Dr Ngoduc certify her fit for light duties on 11 April 1997, about three days before her maternity leave finished? She did not recall asking the doctor for the certificate but she may have gone to him for advice before returning to work.
12. The applicant was next assessed by Dr Chen on 22 July 1997. Dr Chen reported that the applicant felt no upper limb or shoulder symptoms while she was on maternity leave and at interview did not have symptoms. However, she experienced pain in her right upper arm after lifting letter trays in June 1997, which settled once she completed the task. On examination Dr Chen noted no tenderness to palpation in the shoulder girdles and no pain on resisted right arm and wrist movements. She was apprehensive about recommencing the task of indexing, which triggered her symptoms. Dr Chen stated that there was no objective evidence of an impairment of the cervical spine, shoulder girdles or upper limbs. There was no evidence of epicondylitis, shoulder tendonitis or tenosynovitis in the wrists. Dr Chen referred to the applicant’s small build and slight stature as demanding caution with repetitive heavy manual handling but she thought the applicant could manage with a 16 kg limit. A 12 week program was devised that would see a progressive increase in maximum lifting restriction to 14 kgs.
13. Ms Tran informed Dr Chen at interview on 16 December 1997 that she had intermittent pain in the shoulder girdle associated with repetitive manual handling and with heavy lifting but not otherwise. She had no discomfort with home duties or in caring for her baby and young children. Again Dr Chen reported that there was no abnormality in the cervical spine or shoulder girdle, no neurological abnormalities in the upper limbs and the applicant demonstrated full strength in the upper limbs. Dr Chen again stated that Ms Tran had “ … myofascial type pain in the right shoulder girdle associated with repetitive heavy manual handling, but there is no objective abnormality on examination.” (exhibit A9) On a long term basis, Dr Chen recommended that as Ms Tran has a small build and poor muscle development, the lifting limit should be reduced to 14 kgs and for her to avoid work at the dock.
14. Ms Tran did not need to see Dr Ngoduc about her upper arm pain during 1998, which she attributed to following the program devised by Dr Chen and working only a day a week.
15. At interview in February 1999, Dr Chase was given a history of pain in the right arm in 1994, when it felt “hot” and “tired” from doing indexing work. She had pain in the lateral aspect of her arm and wrist. Despite doing the exercises suggested by Dr Ngoduc her symptoms did not completely settle. They were particularly painful while she did repetitive work such as indexing, carrying trays of mail and loading mail into machines for sorting. She had been working only one day a week for 18 months prior to seeing Dr Chase, and this resulted in a lessening of her symptoms. Dr Chase reported that the applicant currently had no pain in the arm, although it feels “tired” and she suffered occasional numbness and tingling in the hand but not at night. Ms Tran said in evidence that she did not feel pain in her arm while she was away from work but did have occasional problems looking after her toddler but manages because she uses her left hand. Dr Chase found full range of movement of the cervical spine, shoulders, elbows and wrists and no tenderness in the upper limb muscles and grip strength was excellent.
16. In Dr Chase’s opinion, Ms Tran was suffering from a non specific right upper limb pain. The prognosis was guarded and he thought she would experience right upper limb pain for the rest of her life. Dr Chase noted that
In the absence of a firm diagnosis, it is impossible to state whether her condition is work related. Upper limb pains are extremely common and occur in people whether they are at work or not. In many cases it is coincidental whether the pains occur at work but when they do so become inevitably labelled as a work related injury. Where such pains develop using the limb will of course increase the pain but that does not mean that they are in fact being caused by the activity that is increasing the symptoms.
In other words while it is possible that her pains are as a result of her employment it is probable that they are not.(T18)
Dr Chase thought the applicant remained partially incapacitated within her current restrictions and she would not be able ever to resume full duties.
17. As a consequence of Dr Chase’s report, Australia Post determined on 1 March 1999 that it was no longer liable to pay compensation for Ms Tran’s condition that was now described as ‘right arm tendonitis’ (T19). However, Australia Post accepted Dr Chase’s recommendation that the restriction in Ms Tran’s duties continue.
18. In pursuing a reconsideration of Australia Post’s determination of 1 March 1999, Ms Tran saw Dr Pillemer, who reported on 23 March 1999 (T22) that she was suffering intermittent symptoms with her right upper limb but had been free of symptoms for two weeks. The discomfort radiated from her right shoulder region down to her wrist and occasionally into the fingers of the right hand, and intermittent pins and needles in the hand. Most days she was fine but on other days after work her symptoms could be quite severe. Her evidence was that lifting and carrying mail trays, at times being requested to carry some trays that exceeded her 5 kgs limit, caused her pain. She disputed the claim by counsel for the respondent that her job involved very light duties. She said the repetitive work in lifting trays of postal articles affected her arm as did the high reaching to sort mail. Express post sorting caused pain because she had to push trolleys of post and the culling also caused pain that she rated as 7 on a scale of 1 to 10. On examination, Dr Pillemer found good range of movement of the cervical spine and upper limb joints, good reflexes and no sensory deficit. He was unable to offer a specific diagnosis. He stated “It would be my feeling that her symptoms could still be due to the nature of her work with Australia Post over the last ten years now, and I would not have felt anything more active is indicated in the way of treatment at this stage.” Mainly due to Dr Chase’s placing restrictions on the applicant’s duties, on 27 April 1999 Australia Post revoked its determination and liability to pay compensation continued (T24).
19. On 11 January 2000, Ms Tran was notified by the respondent that she had to resume full time hours. Resuming on light duties, Ms Tran described feeling pain in her right upper arm and shoulder, and when the pain was particularly bad, she experienced it in her wrist and hand as well. She described the symptoms as an ache and being very uncomfortable, and at its worst, she rated the pain as 8 out of 10. The pain would not be too bad on Mondays after the weekend at home, but after five days of work it became worse.
20. At his assessment in July 2002, Dr Whittaker was given a history of some pain free days and varied symptoms in the right upper arm down to the forearm. Dr Whittaker found that Ms Tran’s right shoulder aching might suggest very mild glenohumeral joint instability which did not require intervention. He stated that she did not have any significant right shoulder girdle pathology, but accepted that her symptoms of muscular discomfort were genuine. He thought her small build and hyper-mobile shoulders and upper limb joints might contribute to her symptoms. Dr Whittaker noted that the applicant’s intermittent discomfort was experienced with certain physical activities but that her symptoms had remained fairly stable with minimal intervention over a number of years. The prognosis was for low grade, intermittent symptoms to persist. They could be controlled if she was sensible in regard to her work and domestic activities. Dr Whittaker thought she was capable of doing indexing, but as lifting trays caused her problems, the weight restrictions should remain. Within her current restrictions, there no reason for further incapacity.
21. Australia Post’s determination on 21 August 2002 that compensation was not payable under s.14 was followed by another consultation with Dr Pillemer. Ms Tran told him that she experienced problems with her right upper limb since last seeing him in March 2000, apart from a recent 4½ week period when she was on holidays and symptom free. On her first day back at work after the holiday she noticed a slight recurrence of symptoms which still continued on a daily basis while she was at work. She described the discomfort mainly being in the right upper arm, elbow and forearm region and radiating into her right hand, but had no problems in her neck. There was full range of movement in the shoulder region and neck but Dr Pillemer noted hypoaesthesia to pinprick in the median nerve distribution and he thought her symptoms were fairly typical of carpal tunnel syndrome. In summary Dr PIllemer stated “ … I do feel that the nature and conditions of her work with Australia Post are a significant contributing factor to the ongoing symptoms in her right lower limb. I feel the most likely explanation is that she does have a mild to moderate right carpal tunnel problem present, and in view of the duration of her symptoms, I would suggest that further investigations and possibly surgical treatment, might well be indicated for her.” (T34)
22. Ms Tran was referred to Dr D Manohar, specialist in musculoskeletal and rehabilitation medicine, on 3 March 2003. In a report to the applicant’s solicitors dated 18 September 2003 (exhibit A1) Dr Manohar stated that the complaint was of pain in the right shoulder extending into the right upper arm and over the fingers, although the symptoms had improved. Heavy work such as lifting, reaching above shoulder height and uncomfortable repetitive movements brought on her symptoms. Pain at the end of the shift could lead to a poor night’s sleep. Dr Manohar considered that an ultrasound of the right shoulder showed bunching of the supraspinatus fibres in her right shoulder consistent with impingement of the supraspinatus tendon. Dr Manohar thought the applicant’s injury was consistent with her symptoms.
23. In evidence Ms Tran said that her current symptoms are pain in the shoulder and arm, the wrist and hand not troubling her as much. Her symptoms are worse at work than at home and they come on during the work day. Despite her pain, she said she will try to continue with her work duties. She rated her pain at 6 or 7 out of 10. She uses Dencorub and Panadol when required, and her husband massages her when she gets home from her shift which ends at 1.46am. She found that physiotherapy and exercises used to give her relief but the pain would return. She has consulted Dr Bui, a chiropractor, a number of times and she found the TENS machine and massage was of some benefit. A pain specialist has recommended a number of injections and she would like to proceed with that treatment. Ms Tran is able to do without trouble some household chores, including cooking, washing up and ironing. Since she developed her pain in the arm, her husband has helped more around the house. She said she relies on her left arm, her dominant arm, to minimise the pain in the right.
24. Mr Elliott, counsel for Australia Post, put it to Ms Tran that she has been doing light work done since November 1995. She has not done indexing work and the weight restriction was lowered from 7kgs to 5kgs. Ms Tran disputed this, and said sorting articles in high volumes required her to throw the articles, bundles of mail, small parcels and larger ones, into bins. The parcels and bundles of mail varied in weight and some could be heavier than 5 kgs. She said she would use both arms to throw the articles.
25. Ms Tran told the tribunal that while sitting through the hearing she was experiencing pain in the right shoulder being at 2 out of 10 and her fingers felt tired. When her arm pain is very bad she also gets headaches and at those times will have pain in the palm of her hand and fingers as well. The work activities most likely to cause pain involve tipping mail onto the conveyor belt, reaching across the belt to remove or cull inappropriate letters or parcels, and throwing the culled material into bins. The pain comes on quickly while culling. Pushing full bins of mail and then putting the mail into ULDs causes pain. Sorting mail and then reaching up to pigeon holes repetitively makes the right arm uncomfortable and tired and then she will slow down. She will place the letters on the desk and then reach up using her left hand. The pain may go away during the night but sometimes it is present the next day. She is careful at home not do too much at once and not to rush. She uses both hands to iron and this does not cause pain.
26. The applicant’s husband, Dat Nguyen, made a statement dated 23 October 2003 that was accepted in evidence (exhibit A8). Mr Nguyen’s oral evidence was that his wife’s shoulder pain began around 1994. When she has had time away from work, he has noticed that her complaints of pain have reduced, yet he and the children will do the vacuuming because that can cause her pain.
27. Dr Pillemer examined Ms Tran again on 26 March 2003 and she complained of discomfort in her right shoulder, right forearm and hand. She notices the symptoms after sorting mail for 2 to 4 hours, being rapid and repetitive work, and some reaching up with her right upper limb. Dr Pillemer noted that nerve conduction tests in November 2000 disclosed no abnormalities. An x-ray of the cervical spine in August 2002 was normal and an ultrasound of the right shoulder in March 2003 suggested some bunching of the supraspinatus tendon consistent with impingement but clinically she did not have any impingement. Dr Pillemer could not suggest any further treatment and thought the applicant was fit to continue on restricted duties. In response to the applicant’s solicitors, on 14 July 2003 Dr Pillemer wrote “In my opinion then any condition she has is related to the nature and conditions of her work rather than an injury.” (exhibit A2)
28. At the hearing Dr Pillemer said he had seen the applicant on a few times over a number of years and found her complaints to be consistent and without exaggeration. To his mind, her work was implicated in the condition because when she stops doing the repetitive activities she improves. He conceded that he could not offer an anatomical or pathological diagnosis, apart from a mild thoracic outlet syndrome. He told the tribunal the complaint was unusual in having persisted for so long but without settling or getting worse, but there was no suggestion of her symptoms not being genuine.
29. Professor P Sambrook, Florence & Cope Professor of Rheumatology at the University of Sydney, who examined Ms Tran on 20 March 2003, reported on 29 May 2003 (exhibit A4) a history of chronic pain in the right upper shoulder and upper limb part of her arm, and intermittent tingling of the fingers. On examination he found Phalen’s test for carpal tunnel was negative and the applicant had full range of movement in the right shoulder but some pain at the extreme and crepitus in comparison to the left side. Professor Sambrook diagnosed right upper limb pain as well as supraspinatus impingement. He noted the ultrasound taken by Dr Kaushik (exhibit A7) that Dr Kaushik reported as disclosing “ … apparent bunching of supraspinatus tendon fibres consistent with impingement in the right supraspinatus tendon at 70 degrees abduction. No signs of rotator cuff tear demonstrated.”
30. Professor Sambrook’s report stated:
Although none of the doctors who have seen Mrs Tran have been able to apply a definite diagnosis, none of them have doubted the presence of symptoms as being real and all have obtained a history of a relationship between symptoms and the nature of her conditions of her employment. She notes that the symptoms increase when she performs heavy activities at work and decreased when she performs light activities or during periods of break from her employment. As such I think there is a definite relationship between her conditions of employment and her symptoms despite the lack of a definitive diagnosis.
In a supplementary report to the applicant’s solicitors dated 25 July 2003 (exhibit A5), Professor Sambrook elaborated on the relationship between the applicant’s symptoms and her employment. He advised:
Since the onset of the initial presentation was related to her employment and she had no prior history of pain in this region before commencing work at Australia Post I would regard her employment as an underlying cause rather than an aggravation.
31. In oral evidence Professor Sambrook said that symptoms in the upper arm and tingling in the fingers suggest three possible scenarios. Nerve conduction studies demonstrated to him that carpal tunnel was not present and an xray of the cervical spine showed only very minor degeneration at C5 level. Finally there was a neuropathic process with brachial plexus irritation that was more a clinical diagnosis rather than a condition that responded well to imaging. He explained that his diagnosis of non specific upper limb pain as being a condition with an organic pathology and certainly he thought the imaging confirmed pathology in the shoulder, but the shoulder pathology did not provide a full explanation of the upper limb pain nor the pins and needles and headache. He thought the restrictions on weights should continue, especially as the applicant is slightly built.
32. A report dated 27 March 2003 by Dr D Maxwell, orthopaedic surgeon, was accepted in evidence (exhibit R1). The history referred to pain in the right arm and shoulder that developed slowly in around August 1994 that Ms Tran attributed to heavy lifting on a repetitive basis at work. There was another episode of pain in the right shoulder radiating into the arm and forearm in November 1995 after returning to normal duties. In December 1995 indexing work caused pain in the right arm and tingling. Over the last year her pain was not as bad because she had been performing restricted duties but at present she had slight discomfort in the right shoulder and right hand, but no neck stiffness or pain. Dr Maxwell concluded:
I could find no objective evidence that Miss Tran [sic] suffers from any pathological lesion of her right arm and there is no evidence that she is suffering from referred pain from the cervical spine.
I do not consider that she sustained any injury in the course of her work. She complains of continuing discomfort in the right arm which I do not believe there is any pathological cause [sic].
I consider that she is currently fit to perform her duties as a mail officer without restriction. She is small in stature and may have trouble with very heavy repetitive lifting. I do not consider that any specific treatment is indicated. I consider her prognosis is excellent.
33. At the hearing, Dr Maxwell said that based on his clinical findings and investigations that had been carried out, he did not believe that the applicant was suffering from either carpal tunnel syndrome or a supraspinatus impingement condition. His opinion of the ultrasound record which showed bunching in the applicant’s shoulder was that ultrasounds were extremely operator dependent and open to interpretation. Dr Maxwell also discounted neuropathic pain syndrome and thoracic outlet syndrome as possible diagnoses of Ms Tran’s condition. In cross-examination Dr Maxwell said that neuropathic pain was simply a description of symptoms. When asked by tribunal member Dr Campbell whether he believed that the applicant was suffering from pain, the doctor strenuously elucidated the notion of pain as being a subjective experience and suffering as also being a subjective experience.
34. A report of Dr J O’Neill, consultant neurologist, dated 28 April 2003 was tendered in the respondent’s case (exhibit R2). Dr O’Neill noted that Ms Tran said she experienced symptoms in her right shoulder, upper arm, forearm and palm of her right hand on most days, depending on the work she was doing but repetitive small letter sorting and express post sorting usually induced pain. She has no pain on Sundays or during periods of annual leave. On examination, she described some pain on the extreme of passive internal rotation of the right shoulder but not on rotation of the right elbow and wrist. Upper limb bulk, power and reflexes were normal. Dr O’Neill stated that Ms Tran has no neurological condition that would explain her right arm pain.
35. In his oral evidence Dr O’Neill said that although he did not think that Ms Tran was fabricating her symptoms, and that she was honestly recording what she thought, he could say with certainty that her pain was not neuropathic in origin. He stated that no physical cause for right arm pain had been established, and from a physical viewpoint could not see why the applicant was not fit to perform the duties of a mail officer. He could not say definitively whether the pain was associated with her work, because he could not find a cause for her pain.
applicable legislation
36. The following definitions in the Act are relevant:
4(1) In this Act, unless the contrary intention appears
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation.
injury means:
(a) a disease suffered by an employee; or …
37. Section 14 provides:
Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. …
findings and consideration
38. We note that none of the doctors to have seen the applicant has doubted her genuineness. For our part, we found Ms Tran to be an honest and credible witness who attempted to answer questions fully and without embellishment. We accept her evidence. We have been impressed by her willingness to continue working even though it causes her pain and so reject the respondent’s submission that she has shirked her duties.
39. The respondent asserted that Ms Tran has not suffered a sudden or ascertainable physiological change to her right upper limb and thus she had not suffered an injury simpliciter (see Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286, per Gleeson CJ and Kirby J at 300). We accept that submission. But we note that the joint reasons go on to recognise that the disease provisions in the relevant compensation legislation can apply where the disturbance to the normal physiological state is caused directly or indirectly by underlying pathology that constitutes a ‘disease’ as defined. It has not been suggested that Ms Tran’s symptoms are due in any way to a psychological condition or that she is imagining the symptoms because of a mental disease. Rather, the applicant’s case has been advanced on the basis that her condition is due to the nature and conditions of her employment. We reject the respondent’s submission, that contrary to the applicant’s oral evidence, she did not experience gradual onset of symptoms while performing duties because of the reference in her claim for compensation to a specific minute of a specific day when she suffered pain while at work. To place too much reliance on a statement of that kind in a claim form would be false precision.
40. It must be said, and it was conceded by Mr Grey, that no doctor has been able to make a confident diagnosis of the condition affecting Ms Tran. Accepting her evidence, we find that she experiences pain in her right arm and shoulder and at times her hand, which has its onset while she is performing repetitive duties including the culling of postal articles from small letters moving along the letter preparation line, placing bundles of letters in trays, sorting mail, reaching to place sorted mail into pigeon holes 20 cm above her head, throwing postal articles into bins and pushing bins of mail. Mr Grey acknowledged that pain itself is not an injury. However, he submitted that there is an organic explanation for the applicant’s condition. In support, he relied on Dr Chen’s and Dr Chase’s opinions but mainly on Professor Sambrook’s evidence that Ms Tran has an injury, giving that term a broad meaning, but the difficulty is in putting a diagnostic label to it.
41. Counsel for the respondent submitted that suffering from pain does not of itself constitute a physical ailment, as defined in s.4 of the Act, and thus the applicant does not suffer from a disease as defined. Reference was made to Comcare v Mooi (1996) 42 ALD 495 where Drummond J, in dealing with whether a psychological disorder amounted to a disease for the purposes of s.4, stated that:
It follows, in my opinion, that, so far as events that do not result in any physical harm to a worker or in the development of any observable pathology in the worker's body but which only have some form of psychological consequence are concerned, the worker will be able to show the existence of a mental ailment, disorder, defect or morbid condition even though his resultant condition cannot be identified with the label of a recognised medical condition. But it is, I think, essential for such a worker to be able to demonstrate that, having regard to his circumstances, he is in a condition that is outside the boundaries of normal mental functioning and behaviour.(at 499)
By analogy, the test proposed by the respondent was whether Ms Tran suffered from a condition that was outside the normal range of functioning of the population. It was submitted that Dr Chen, Dr Chase and Dr Whittaker observed that the applicant is a small woman of short stature with poor muscle development and accordingly it was reasonable for lifting restrictions to be placed on the work expected of her. Thus it was contended that when she suffers pain while going about her work, she is not being afflicted by a condition that is outside the normal range of functioning for such a member of the population.
42. Ms Tran’s current duties are not confined to lifting and carrying, where the weight involved would be a potential contributing cause to her pain. Her duties extend to culling, which requires her picking off a conveyor belt, any items that are not small letters and putting or throwing them into a bin. Her evidence was that the other articles will be small bundles of letters or small parcels. Her work in sorting and reaching above to place letters also does not involve weights, but as with the culling, it is repetitive work. We are satisfied that it is the repetitive nature of these duties rather that the weight of the articles involved that causes Ms Tran her pain and discomfort. We are also satisfied that her small build does not explain why these duties cause her symptoms.
43. We were not persuaded by the evidence of Dr O’Neill and Dr Maxwell. Each rejected out of hand, any possibility that there was an organic basis for Ms Tran’s condition. That opinion in itself does not cause us concern. What we have found less helpful was the outlook, dogmatically asserted, that without demonstrable pathology, there can be no acceptable or explicable diagnosis of the applicant’s pain and that other specialist opinion to the contrary should not be entertained.
44. Dr O’Neill dismissed neuropathic pain syndrome as a diagnosis under any circumstances because he “does not agree with the whole concept”, although he did accept that there are many doctors engaged in the research into neuropathic pain syndrome, its pathology and pain management. He also accepted that Ms Tran was honestly reporting her symptoms of pain. It was apparent from cross-examination, that Dr Maxwell did not obtain a complete history of Ms Tran’s symptoms and their relationship with the various work activities that she has performed and the nature and duration of periods of restricted duties. But more significantly, Dr Maxwell’s evidence that a diagnosis of neuropathic pain syndrome does not have acceptance in medicine suggests to us a narrow and inflexible approach to the issue of diagnosis, and this approach was affirmed by his comment that doctors who propose diagnoses based on neuropathic pain syndrome are ignorant. We consider that Dr Maxwell’s evidence was lacking objectivity.
45. Professor Sambrook’s evidence was that he was confident there was an injury because there was a definite relationship between the repetitive work and the applicant’s right upper limb pain. It is significant that Dr Pillemer, who has had the advantage of seeing Ms Tran on four occasions between January 1996 and March 2003, was certain that Ms Tran had a genuine problem. While it is the case that Dr Pillemer too has found it difficult to make a firm diagnosis of the applicant’s condition, initially finding over-use syndrome but then shifting to a diagnosis of carpal tunnel syndrome, he attributed her condition to the repetitive nature of her work at Australia Post. He described her duties as a significant contributing factor because the condition settles down when she stops doing that work. We place considerable reliance on his evidence by reason of his greater familiarity with her condition. Both Dr Chen and Dr Chase also recognised that the applicant was experiencing a problem with her right upper limb. Dr Chen termed it myofascial type pain and noted that long term restrictions on weight and dock work would be required. Dr Chase believed that Ms Tran’s condition that he diagnosed as non specific upper limb pain would probably continue for the rest of her life.
46. It was submitted by the respondent that at its highest, Ms Tran’s case rested on Professor Sambrook’s diagnosis of neuropathic pain syndrome, which he was not prepared to put forward as a definitive diagnosis. In trying to posit a diagnosis, he said that it was 45 per cent likely that neuropathic pain syndrome was the appropriate diagnosis but it was equally likely that supraspinatus impingement syndrome was the correct diagnosis. For Professor Sambrook, the imaging shows pathology in the right shoulder but that pathology alone does not explain all of the applicant’s symptoms, especially in her forearm and fingers. Despite the diagnostic dilemma, Professor Sambrook’s evidence was that most likely there was organic pathology to explain the applicant’s right upper limb symptomatology, the only difficulty being to work out the pathology with precision.
47. We are satisfied on the basis of the opinion of Professor Sambrook, and to a lesser extent that of Dr Chen, that repetitive manual handling activities at work have most likely brought about some organic pathology that has led to the applicant’s pain syndrome on performing similar, repetitive tasks. Professor Sambrook explained that the initiating organic process for the neuropathic pain, which in this case he thought was the indexing work, need not recur in the future for a patient to experience neuropathic pain from other repetitive activities. He said that neuropathic pain syndrome would comfortably fit with the symptoms that Ms Tran experiences while carrying out restricted duties, because certain types of work, even restricted duties work, can cause a recurrence in the organic process that led to the initial neuropathic pain. We find that such organic pathology to be a morbid condition or defect and thus covered by the definition of ‘ailment’. On the balance of probabilities we accept that the diagnosis by Professor Sambrook of neuropathic pain syndrome is appropriate to explain the cause of Ms Tran’s symptomatology and best accounts for her complaints.
48. From Professor Sambrook’s evidence we are satisfied that Ms Tran’s employment at Australia Post has made a material contribution to the development of the organic pathology that results in the neuropathic process where the applicant’s performance of certain types of repetitive activities will lead to onset of symptoms. Her pain is part of the injury. Although the condition abates while Ms Tran is on leave and through the course of weekends, we find the neuropathic pain syndrome is rendered intermittently symptomatic by her repetitive work activities. That conclusion is based on her evidence, her husband’s and the consistent histories she has provided to the doctors.
49. The decision under review is set aside and the tribunal determines that Ms Tran continues to suffer from an injury to her right upper limb (neuropathic pain syndrome) and is entitled to compensation under s.14 of the Act. She is presently entitled under s.16 of the Act to compensation in respect of medical treatment reasonably obtained in relation to her right upper limb pain. We accept that the restrictions on Ms Tran’s duties should continue. The respondent is to pay the applicant’s costs in accordance with the tribunal’s General Practice Direction.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision of P.J. Lindsay, Senior Member, and Dr J. Campbell, Member:
Signed: .....................................................................................
AssociateHearing 5 & 6 November 2003
Decision 13 August 2004
Counsel for Applicant Mr GreyCounsel for Respondent Mr Elliott
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