Villalva-Amaral and Australian Postal Corporation - [2000] AATA 1110

DECISIONS AND REASONS FOR DECISIONS [2000] AATA 1110

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº N99/1527
GENERAL ADMINISTRATIVE DIVISION)                 Nº N99/1528
           Re:     ANGELA VILLALVA-AMARAL
  Applicant
           And:    AUSTRALIAN POSTAL CORPORATION
  Respondent

DECISIONS

Tribunal: Mrs H.E. Hallowes, Senior Member

Date:15 December 2000
Place:Sydney

Decisions: The reviewable decisions are set aside and the determinations under review are varied to now provide that the applicant suffered an injury pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 ("the Act"). The applicant is entitled to be paid compensation pursuant to section 16 of the Act in respect of her reasonable medical expenses and to be paid compensation pursuant to section 19 of the Act for incapacity for work between 24 March 1999 and 15 February 2000 as a result of her injury. The respondent shall pay the applicant's costs of the application as agreed or in the absence of agreement to be taxed in accordance with the Administrative Appeals Tribunal's General Practice Direction dated 18 May 1998.

(sgd) H.E. Hallowes
Senior MemberCOMPENSATION — mail officer — lifting mail-bags — muscle strain, epicondylitis — rehabilitation — change in medical practitioners — issue with respect to applicant's credit
Safety, Rehabilitation and Compensation Act 1988ss.4, 14, 16, 19

REASONS FOR DECISIONS

15 December 2000 Mrs H.E. Hallowes, Senior Member

The applicant seeks review of two reviewable decisions made on 1 June 1999 and 27 September 1999 with respect to two claims for compensation she lodged on 6 April 1999 and 4 August 1999 regarding periods she was incapacitated for work due to symptoms in her dominant right upper limb. On her first claim form the applicant contended that she suffered ". . . arm pain, shoulder, elbow and wrist" on 23 March 1999. She first sought medical treatment for her injury on 24 March 1999. She had been working as a mail officer at the dock, Sydney North Letters Facility, repetitively taking mail-bags from a conveyor belt. On her second claim form she contended that she had injured her "shoulder blade, elbow, right side" on 3 August 1999, first seeking medical treatment for that injury on 4 August 1999. She had again been working in the dock lifting mail-bags. The applicant was born on 26 March 1970 and she commenced employment with Australia Post in mid-1989 as her first post-secondary school employment.
On 13 April 1999 a delegate of the respondent "disallowed" the applicant's claim with respect to "right arm pain, shoulder, elbow and wrist". That decision was affirmed on 1 June 1999. On 13 August 1999 a delegate of the respondent "disallowed" the applicant's second claim and that decision was affirmed on 27 September 1999.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents"), together with further material lodged by both parties at the hearing. The applicant was represented by Mr P. O'Rourke and the respondent was represented by Ms R. Henderson both of counsel.
The documents include a workplace assessment of the applicant's duties undertaken by Ms T. Rtshiladze, occupational health and safety advisor. It was noted on the Rehabilitation Case Closure Summary dated 17 August 1999, that the applicant commenced a gradual return to work in mid-April 1999 and that on 18 August 1999, following review by her general practitioner, she was certified as fit to return to normal hours with restrictions of lifting no more than five kilograms and that she should avoid trunk twisting movements.
Ms Henderson provided the Tribunal with copies of photographs of mail officers carrying out their duties and the equipment they used. The only other relevant material in the documents with respect to the applicant's condition was a report by Dr Z. Anjun, of Health Services Australia, dated 4 August 1999. Dr Anjun noted:
. . .
She was asymptomatic at the time of presentation and the examination did not show any abnormality apart from tenderness in right elbow region.
However, this is the second episode of similar complaints under similar circumstances during the last 3-4 months. I agree with the treating doctor that she should go back to modified duties with restrictions as outlined on the accompanying form, for at least 2 weeks to allow healing and avoid any further aggravation.
. . .
The applicant gave oral evidence that she commenced employment with Australia Post on 17 July 1989. She has always worked at the same facility. She used to work on rotating shifts but since September 1998 she has worked the same shift which suits her child care arrangements. She outlined her duties, including the transfer of mail-bags from a conveyor belt onto unit load devices.
The applicant said that in March 1999 she experienced discomfort in the area of her right shoulder blade. It was painful by the end of the shift and she applied dencorub when she got home and the pain resolved. However, towards the end of the month, on 23 March 1999, her shoulder blade became very sore and she spoke to a workmate about it. That night her pain did not resolve. She reported the pain to her supervisor on 24 March 1999 and she attended Dr R. Dimian, her then general practitioner, who gave her four days off work. She was referred to a specialist who in turn referred her for physiotherapy treatment with respect to her right shoulder blade, upper back and neck.
The documents include medical certificates from a number of general practitioners. The Tribunal accepts the applicant's evidence as to why she changed her treating doctor from time to time. She had changed her place of residence. The Tribunal is satisfied that she did not seek treatment from a number of doctors until such time as she found a general practitioner to provide her with medical certificates with respect to her employment, a suggestion made by the respondent. She told the Tribunal that by 16 April 1999 her whole upper right limb was very sore and she was referred to Dr V. Panjratan, orthopaedic surgeon, whose report dated 10 May 1999 was before the Tribunal. The documents include medical certificates with respect to the periods during which the applicant was certified as totally unfit for work between end of March 1999 and 13 May 1999, when she undertook a period of leave until 17 July 1999 for reasons unrelated to her claimed compensable condition. The applicant acknowledged that she separated from her husband in May 1999.
The applicant conceded that the small letter trays she was lifting in March 1999 would not have weighed more than 7 kilograms and that her daughter, born 28 September 1996, weighed more than that at that time. She went on to say however that mail-bags, which had to be moved and tipped, weighed up to 16 kilograms. Some weighed 25 kilograms. They were not always tagged as "heavy", help was however available with heavy mail-bags. When the applicant returned to work in July 1999 she was on full-time hours and she said that she managed to spend her time driving a fork-lift so that she did not have to lift mail-bags. In early August 1999, when she was again required to move mail-bags, she again experienced a sharp pain in her right shoulder blade which she reported to her supervisor. She had some days off work and she also attended work sometimes using her left arm to sort small letters as her right wrist, shoulder and elbow were still sore. She found that the physiotherapist, to whom she was referred, provided little assistance with respect to her symptoms. She has had difficulty undertaking housework. By the end of September 1999, she was advised to rest her shoulder.
The applicant said that, since 15 February 2000, she has only been working five hours per shift at her request so that she can spend more time with her child. On 15 April 2000 she returned to full-time work and she told the Tribunal that she was "able to cope".
Under cross-examination, the applicant agreed with Ms Henderson that symptoms recorded by the medical practitioners in their reports and clinical notes with respect to her were accurate. Although there may be some inconsistencies with respect to those matters the doctors have recorded, the Tribunal is satisfied that those inconsistencies do not reflect upon the applicant's credit. The medical certificate signed by Dr Dimian on 24 March 1999 refers to right shoulder and right elbow pain which is a reflection of what is in his clinical notes, which were also before the Tribunal, and consistent with the history the applicant provided to Dr D. Manohar, rheumatologist, on 15 September 1999, when he noted that her presenting problem had been right scapular pain. It was the applicant's memory that she had told Dr Harrison about the pain in her shoulder blade although he appears to have diagnosed her neck as the possible source of her problem, although he records the history as:
. . .
History: On 23.3.99 after finishing a shift she began to experience pain at the back of her neck which was uncomfortable and not associated then with restricted movement or referred pain elsewhere. The next day she was conscious of discomfort in the right scapular area radiating down her right elbow and the dorsal aspect of her wrists such that there was pain at wrist and elbow rather than a continuum of discomfort between those parts and she went off work.
. . .
Dr Panjratan reported to Dr Goyal, general practitioner, on 10 May 1999 that:
. . .
She returned on 30/04/99 the pain was diffuse [sic] and was not localised to one particular spot where a steroid injection was given. The main stay of treatment would have to remain physiotherapy and gradual mobilisation and exercises and avoid doing the offending activities.
. . .

He did not provide Dr Goyal with any specific diagnosis, only referring to the applicant's "current condition" as "intermittent pain at the back of the shoulder".

The Tribunal had before it a number of reports from Dr Manohar, to whom the applicant had been referred by Dr Dimian. In his report dated 7 February 2000 Dr Manohar reported that he initially assessed the applicant on 15 September 1999. She presented symptoms of right scapular pain extending into the right side of her neck and across the right shoulder girdle and right upper arm, down into the right elbow and wrist. He diagnosed:

Strain of the trapezius, sternomastoid, pectoralis major and minor, rhomboids, and long head of the biceps
lateral and medial epicondylitis

A bone scan disclosed mild osteoarthritic changes. When seen again on 27 October 1999, the applicant reported that her symptoms were "reasonably good" but activities tended to cause pain.

Dr Dimian had also referred the applicant to Dr J. Harrison, orthopaedic surgeon, who reported to him on 25 August 1999. He noted the applicant's absence from work in June and July 1999 when she was overseas. She reported to him that the discomfort in her right arm seemed to settle while she was away. In his opinion:
. . . This lady may have sustained minor damage to her neck possibly at the C5/6 level in her neck judged by her clinical symptoms from March and her vulnerability to trouble since then . . .
It had been the respondent's intention to call Dr N. McGill, rheumatologist, who examined the applicant on behalf of the respondent, but due to his unavailability the parties agreed to rely on his report. He examined the applicant on 12 January 2000. He recorded a social history that the applicant had separated from her husband in April 1999 which he noted was shortly after she first reported a problem with her right shoulder region. Dr McGill reported that he presumed that the applicant's initial upper right limb symptoms were due to muscle strain related to the repetitive lifting of heavy mail-bags. He would have expected that problem to settle within a few weeks. He could find no condition to account for her prolonged symptoms. Although Dr McGill referred to the breakdown of the applicant's marriage shortly before her problem arose, he went no further than suggesting that it may be relevant that she had separated at about the time she first reported symptoms. He did not say that her symptoms were psychosomatic. The Tribunal notes he reported that it was not advisable for the applicant to lift many heavy mail-bags on a continuous basis which suggests to the Tribunal that he was probably of the view that she had experienced physical symptoms in her right dominant upper limb.
It is of some concern to the Tribunal that the medical practitioners who have treated the applicant have not made a firm diagnosis with respect to the nature of the injury which has caused her symptoms. That may account for the way in which the respondent has framed its decisions which are under review. The Tribunal has decided, on the balance of probabilities, that it should accept the opinion of Dr Manohar, who is the specialist who has seen the applicant on a number of occasions (see paragraph 13 above). The Tribunal finds that the applicant suffered an injury as diagnosed by Dr Manohar in his report dated 7 February 2000; that her injury was a physical injury arising out of or in the course of her employment (subsection 4(1) of the Act) and she is entitled to compensation under section 14 of the Act, the respondent being liable to pay compensation to the applicant in accordance with the Act, including the payment of her reasonable medical expenses with respect to her injury and compensation under section 19 of the Act with respect to her incapacity for work during the period from 24 March 1999 to 15 February 2000, when the applicant conceded that any reduction in her hours of work was due to non-compensable reasons. The Tribunal is satisfied that there was a causal connection between the applicant's employment and her injury.
The applicant has worked for the respondent for a number of years. The Tribunal is satisfied that her injury arose following a change in her duties when she was constantly in the dock area moving mail-bags. She has a good work history. The Tribunal is satisfied that she has a reason to keep working. Her employment enables her to support her daughter. The only report before the Tribunal that the applicant was depressed was a suggestion she made that she had been depressed when she was not at work. She continues in full-time employment and she will hopefully remain carrying out her duties for years to come should that be her wish.
It is for these reasons that the Tribunal will set aside the decisions under review and vary the determinations.
I certify that the eighteen [18] preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs H.E. Hallowes, Senior Member
(sgd)      Catherine Thomas
              Personal Assistant
Date of Hearing:  16.08.00
Date of Decision:  15.12.00
Counsel for the Applicant:           Mr P. O'Rourke
Solicitor for the Applicant:           Messrs McClellands
Counsel for the Respondent:       Ms R. Henderson
Solicitor for the Respondent:       Messrs Graham Jones