Whiteman and Australian Postal Corporation (Compensation)
[2015] AATA 954
•11 December 2015
Whiteman and Australian Postal Corporation (Compensation) [2015] AATA 954 (11 December 2015)
Division GENERAL DIVISION File Numbers
2013/5220; 2014/0320; 2015/4164
Re
Cheryl Whiteman
APPLICANT
And
Australian Postal Corporation
RESPONDENT
DECISION
Tribunal Ms G Ettinger, Senior Member
Date 11 December 2015 Place Sydney The Tribunal affirms the decision in Matter 2013/5220.
The Tribunal affirms the decision in Matter 2014/0320.
The Tribunal affirms the decision in Matter 2015/4164.
No costs may be awarded.
........................................................................
Ms G Ettinger, Senior Member
CATCHWORDS
COMPENSATION – Applicant has accepted injury to left shoulder – surgery undergone – claim for ongoing incapacity and payments pursuant to sections 19 and 20 of the SRC Act – permanent impairment claim – previous decision by the Tribunal, and appeal to the Federal Court regarding the method of calculation of permanent impairment using AMA5 – decisions under review affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 19, 20, 24, 27
CASES
Comcare v Simmons (2014) 138 ALD 58
Whiteman v Australian Postal Corporation [2010] AATA 645
Whiteman v Australian Postal Corporation [2011] FCA 1427Whiteman v Australian Postal Corporation [2015] AATA 486
SECONDARY MATERIALS
Comcare Guide to the Assessment of the Degree of Permanent Impairment
American Medical Association’s Guides
REASONS FOR DECISION
Ms G Ettinger, Senior Member
11 December 2015
SUMMARY
Ms Cheryl Whiteman, aged 65, is the Applicant before this Tribunal in three applications for review of decisions of the Respondent, Australian Postal Corporation, (Australia Post). Ms Whiteman was represented by Mr Leo Grey of counsel, and the Respondent by Mr Matthew Gollan of counsel.
Ms Whiteman was injured at work on 29 July 2004, and has an accepted claim in regard to her left shoulder. The decisions under review refused her claim for permanent impairment, and compensation pursuant to sections 19 and 20 of the Safety Rehabilitation and Compensation Act 1988, (the SRC Act) for the periods 2006 – 2010, and ongoing.
Ms Whiteman had previously made a claim for permanent impairment of her left shoulder. The decision of the Tribunal affirming the decision of the Respondent denying Ms Whiteman’s claim for permanent impairment pursuant to sections 24 and 27 of the SRC Act, was published on 27 August 2010 (Whiteman v Australian Postal Corporation [2010] AATA 645).
Ms Whiteman appealed unsuccessfully to the Federal Court (Whiteman v Australian Postal Corporation [2011] FCA 1427). What the Federal Court did settle, was the method of determining the degree of permanent impairment which was to apply the ‘American Medical Association’s Guides’ (the AMA Guides) to calculate whole person impairment (WPI) in cases where the person has undergone arthroscopy, as in Ms Whiteman’s case.
After four days of hearing in June 2015, and during closing submissions, a question of jurisdiction of the Tribunal was raised. Mr Grey argued that notwithstanding Ms Whiteman had made no claim for incapacity for the period 3 July 2006 to 5 November 2010, (but only for the period 5 November 2010 and continuing), all matters of incapacity compensation arising from the compensable left shoulder injury should be included, and considered by this Tribunal. He claimed that the Tribunal had jurisdiction to consider Ms Whiteman’s entitlement to compensation under section 19 for the period 3 July 2006 from which date Ms Whiteman worked 25 hours a week, (having reduced her work hours from the pre-injury time of seven hours 21 minutes per day) until 5 November 2010, the day on which she resigned from the Respondent’s employ.
He argued that the Tribunal accordingly had jurisdiction to include Ms Whiteman’s claim for incapacity payments for the period 3 July 2006 to 5 November 2010. Mr Grey sought to rely on the decision of Comcare v Simmons (2014) 138 ALD 58.
In summary, Mr Gollan argued against that proposition, submitting that:
The question of jurisdiction is defined by reference to s.43(1) of the Administrative Appeals Tribunal Act and also ss.62 and 64 of the Safety, Rehabilitation and Compensation Act. The scope of the Tribunal’s authority of a review under the 1988 Act (SRC Act) has been considered in a number of cases …
In his submissions Mr Gollan referred to Casarotto v Australian Postal Commission (1989) 17 ALD 321 and Lees v Comcare (1999) 56 ALD 84.
After receiving written submissions from both parties, I made a decision, (Whiteman v Australian Postal Corporation [2015] AATA 486) finding, in summary, as follows:
[8] There can be no disagreement that the question of jurisdiction is defined by reference to section 43(1) of the Administrative Appeals Tribunal Act 1975, (AAT Act), and sections 62 and 64 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Section 43(1) of the AAT Act states relevantly that: ‘For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision ….’
…
[14] Jurisdiction cannot simply arise out of Mr Grey’s opening words at a hearing, or the Applicant’s Amended Statement of Facts Issue and Contentions. The Respondent should have replied to that Amended Statement dated 3 January 2015 and date stamped 5 February 2015 at the Administrative Appeals Tribunal. It did not do so. That has caused some difficulties. As the matter is listed for a resumed hearing on 24 September 2015, there will be an opportunity for the parties to confer and take appropriate action if the period 3 July 2006 to 5 November 2010 is to be considered in regard to Ms Whiteman’s claim for compensation for incapacity.
[15] The Tribunal finds that it has no jurisdiction to make decisions about incapacity payments to Ms Whiteman in relation to her shoulder injury for the period 3 July 2006 to 5 November 2010.
Following publication of my decision, the Applicant lodged a further claim for incapacity payments pursuant to section 19 of the SRC Act for the period 3 July 2006 – 5 November 2010, which was refused by the Respondent. On a reconsideration dated 11 August 2015, the reviewable decision affirmed the decision of Australia Post. The application to the Tribunal is in Matter 2015/4164 (Exhibit R11). The matter was joined to the other two matters already before the Tribunal, and now included the period 3 July 2006 – 5 November 2010 as part of Ms Whiteman’s claim for incapacity.
I have heard evidence and submissions in relation to all three applications, and affirm each. My reasons follow.
ISSUES TO BE DECIDED
The issues to be decided in these matters are:
Matter 2014/0320
·Whether since 5 November 2010 the Applicant has been incapacitated for work as a result of the accepted injury;
·If the Applicant has been incapacitated for work as a result of the Injury since 5 November 2010, whether the Applicant’s incapacity has been total or partial;
·If partial, whether the Applicant has been capable of earning in suitable alternative employment, and if so, what the Applicant has been capable of earning in that suitable employment; and
·Whether, since 5 November 2010, the Respondent is liable to make weekly payments of compensation to the Applicant for incapacity.
Matter 2015/4164
·This matter relates to the incapacity issue in Matter 2014/0320, and refers to the period 3 July 2006 – 5 November 2010.
Matter 2013/5220
·Whether the Applicant is entitled to any, and if so, what compensation pursuant to sections 24 and 27 of the SRC Act in respect of the Applicant’s accepted left shoulder injury.
·A decision in that regard requires consideration of whether the Applicant suffered impairment as a result of the injury, and if so:
(i)whether the impairment is permanent, in the sense of being likely to continue indefinitely (section 24(2) of the SRC Act);
(ii)whether the Applicant has suffered any, and if so, what WPI in respect of the accepted injury; and
(iii)whether any WPI suffered by the Applicant is at least a 10% WPI, and whether, because of section 24(7), compensation is not payable under sections 24 and 27 of the SRC Act.
RELEVANT LEGISLATION
The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988, (the SRC Act), in particular sections 19, 20, 24 and 27.
BACKGROUND
Ms Whiteman worked as a Postal Services Officer for the Respondent from 1989 till her resignation on 5 November 2010. She is left handed, and injured her left shoulder attempting to lift a heavy parcel on 29 July 2004. Liability was accepted for sprained left shoulder, and Ms Whiteman’s medical expenses were paid pursuant to section 16 of the SRC Act.
Dr Peter Beiers, a general practitioner and the Facility Nominated Doctor, whom Ms Whiteman consulted the day following her injury, specified restrictions on lifting and other activities for her. Ms Whiteman consulted him on many occasions, and his reports and medical certificates are in the T-documents. His clinical records dated 2000 – 2006 are at Exhibit A8.
Ms Whiteman said that she was put on a graduated return to work plan, but that after some time, her arm became progressively more sore. She had an X-ray and ultrasound.
In February 2005, Dr Stephen Kemp, a hand and upper limb surgeon performed a left arthroscopic acromioplasty and excision of the distal clavicle. Ms Whiteman was off work for three months following surgery, and made a graduated return to work. As liability had been accepted, Australia Post assumed responsibility for payment.
On 8 April 2005, Dr Kemp stated at:
Cheryl is out to eight weeks now … she is going very well. She still can’t lie on that side at night. The shoulder catches her a bit through the day but objectively she is moving smoothly through a full range with good strength. I am sure she will go on slowly (sic) settle and would be happy for her to look at slowly increasing her activity in the workplace.
I have asked her to return for further review only if she (sic) having trouble.
Ms Whiteman’s evidence was that her shoulder was sore, and she did not know how heavy parcels were until she lifted them. She also said that she felt unsupported because of her manager, Mr Alan Hardcastle’s, attitude towards her. She said that she found it hard to get assistance with her work within the bounds of her restrictions.
By 3 July 2006 Ms Whiteman had negotiated to work 25 hours a week with lifting restrictions.
This Tribunal, in its previous decision dated 27 August 2010 which dealt with Ms Whiteman’s permanent impairment claim, stated at [12]:
After about three months after she had resumed full-time work, Ms Whiteman decided to cease full-time work and work part-time, for 25 hours per week, She says her supervisor at the time was not sympathetic to her impairment but her decision to work part-time was not related to her impairment as such (and Australia Post documents confirm that it was for “personal” reasons), She now works shifts of five hours, from 12pm to 5pm, alternating between 28 hours one week and 22 hours the next.
The reasons for Ms Whiteman’s decision to work the part-time hours referred to above, were the subject of much discussion before me. Mr Gollan submitted that in deciding these matters I should be mindful of credit issues in regard to Ms Whiteman’s evidence in considering her applications for compensation, her decision to work part-time on and from 3 July 2006, and the circumstances of her resignation on 5 November 2010.
I noted that Ms Whiteman did not tell any of the doctors whom she consulted between 2006 and 2010 about her left shoulder, and did not seek prescription medication for it. During that period she took Osteoeze, Denkorub and used a wheat bag, all over the counter remedies.
On or about 12 April 2010, staff at the Belmont post office were told there would be a review of staffing and operations.
On 15 May 2010, Ms Whiteman had a heart attack and was admitted to hospital. She attributed that to the stress of work and having had to give evidence at her hearing at this Tribunal on 16 and 17 March 2010.
In August/September 2010 Ms Whiteman and her partner/friend, Mr Robert Hiles travelled to the USA to visit her daughter who was posted there for work.
Ms Whiteman returned to work on 27 September 2010 and was told the next day by Ms Holstein that a re-organisation had taken place. She says she was not told she still had a job. She says she was instructed to report to Warner’s Bay Post Office later that week, and that she might have to move from place to place. She says she was not told that her restrictions would be taken into account, and that she would have someone to assist her with lifting.
I note Ms Kim Holstein’s evidence, (Australia Post Network Operations Manager), that changes to staffing were not communicated to people on sick or recreation leave, Ms Whiteman having been on both. However, she stated that Ms Whiteman was assured she could remain at Belmont post office until a suitable position came up for her. Ms Holstein referred to the RRR policy, being that staff were not required to move to locations further than 30 kms or 30 minutes away.
I note from handwritten file notes dated 31 March 2010 that Ms Whiteman had been present at a meeting with others at which the desirability of having three full-time staff (rather a mix of full and part-time staff), was discussed. That satisfies me that she knew approximately what was planned before she went on sick leave and holidays. A later file note on 16 September 2010 when Ms Whiteman was on holidays, and therefore not present, indicated: Rosters due 1/10 for new staffing. Discussion with Cheryl on her return from CTSL would take place re RRR remain @ Belmont until suitable RRR came up.
In her letter of resignation dated 14 October 2010, Ms Whiteman stated:
Due to ongoing medical problems with my left shoulder as a result of a work related injury suffered at Belmont Post Office and also work related stress due to the abolishment of my PSO position without my consultation, I feel for the sake of my health and wellbeing.
I hereby tender my resignation from Australia Post as from the close of business on Friday, 5 November 2010.
In an email dated 25 November 2013, Ms Holstein noted that the Applicant came into the office prior to her resignation, and advised that, as her partner had obtained a voluntary redundancy, she was looking at leaving so they could travel, and also do some renovations to their property. Ms Holstein stated the Applicant advised she would probably be leaving due to her health scare she realised that life was too short. Ms Whiteman denied having said that.
Reports of Professors Kleinman and McGill, addressed Ms Whiteman’s permanent impairment claim which is discussed below. As noted above, the Federal Court clarified the way in which permanent impairment should be measured using a goniometer and the AMA Tables, in cases such as Ms Whiteman’s where an arthroplasty has been performed. Professor McGill insisted in his earlier reports that his clinical judgment and examination was more accurate, and did not use the goniometer. He acknowledged the application of the AMA Tables in his final report dated 20 August 2014.
In coming to a decision regarding the three applications before the Tribunal, I have considered each matter below.
MATTER 2015/4164 – INCAPACITY FOR WORK (3 JULY 2006 – 5 NOVEMBER 2010)
As noted above, Ms Whiteman has an accepted claim pursuant to section 14 of the SRC Act for sprained left shoulder in respect of a work related injury which occurred on 29 July 2004.
Matter 2015/4164 refers to the period 3 July 2006 – 5 November 2010, and relates to the claim for incapacity in Matter 2014/0320 (which addresses the period after 5 November 2010). Relevantly on 3 July 2006, Ms Whiteman chose to work 25 hours a week rather than the full hours she had been working following surgery for her left shoulder on 7 February 2005. I have considered the events leading up to 3 July 2006, and the reasons for Ms Whiteman’s change of hours.
By way of background I note that Dr Peter Beiers, a general practitioner and the Facility Nominated Doctor, whom Ms Whiteman consulted the day after the injury on 29 July 2004 specified restrictions on lifting and other activities for her. In July 2004 Dr Beiers certified Ms Whiteman fit for full hours on restricted duties with a lifting limit of 5 kgs, no lifting with the left arm, and no work above shoulder height.
Ms Whiteman consulted Dr Beiers on many occasions, and his reports and medical certificates are in the T-documents. His clinical records dated 2000 – 2006 are at Exhibit A8.
Ms Whiteman said that she was put on a graduated return to work plan after her injury, but that after some time, her arm became progressively more sore. A rehabilitation program was also set up for Ms Whiteman.
Ms Whiteman had an X-ray and ultrasound of the left shoulder carried out by Dr Albert Gutmann on 31 August 2004. He stated:
I cannot exclude thickening of the subdeltoid bursa with periodic impingement. The nature of the discomfort experienced is not typical, and a diagnostic and therapeutic injection of steroid and Marcaine could be performed ….
Dr Graham, an occupational physician reported on 21 September 2004. He diagnosed: Simple impingement syndrome of the left shoulder. No evidence of rotator cuff tear but suggestion that there may be some degenerative change in the left acromioclavicular joint …
Dr Graham also stated as regards the prognosis:
I would expect the condition to be cured with appropriate treatment. The exact duration of current problems before a cure is achieved is unpredictable and is very much dependent on treatment used and the response to this. Her restrictions at work however are temporary and there is no real requirement for permanent restrictions to be applied.
Dr David Rodd, hand and upper limb surgeon reported on 28 October 2004:
Clinically I feel that Cheryl has three problems secondary to her work related left shoulder injury (1) a very irritable ACJ (2) cervico brachial irritability involving the left side of her neck and (3) a mild to moderately irritable left shoulder impingement syndrome.
On 7 February 2005, Dr Stephen Kemp, a hand and upper limb surgeon performed a left arthroscopic acromioplasty and excision of the distal clavicle. Ms Whiteman was off work for three months after the surgery, and made a graduated return to work. As liability had been accepted, Australia Post assumed responsibility for payment. Dr Kemp stated that he expected Ms Whiteman would be fit for selected duties between four to eight weeks post surgery, increasing towards normal between 8 - 16 weeks.
On 8 April 2005, Dr Kemp stated at:
Cheryl is out to eight weeks now … she is going very well. She still can’t lie on that side at night. The shoulder catches her a bit through the day but objectively she is moving smoothly through a full range with good strength. I am sure she will go on slowly (sic) settle and would be happy for her to look at slowly increasing her activity in the workplace.
I have asked her to return for further review only if she (sic) having trouble.
Ms Whiteman returned to the Belmont post office, her place of work on 26 April 2005, in a supernumerary position, four hours a day, with assistance on the counter. She continued with a graduated return to work program fluctuating between reduced pre-injury, and full hours with restrictions.
Dr Ron Muratore, a sports physician, reported on an examination of Ms Whiteman on 22 March 2006 at the request of Australia Post. He made a diagnosis of cervico-brachial syndrome and osteoarthritis of the acromioclavicular joint which led to impingement syndrome caused by her compensable injury. He noted this was addressed surgically, but that Ms Whiteman was now suffering Persistent Pain Syndrome. He considered she may have been exaggerating her symptoms to a degree. He also opined that she was not fit for her pre-injury duties because of the pain and restriction of movement.
I noted a letter from Dr Beiers to the HR Department of Australia Post dated 30 March 2006 in which Dr Beiers reported Ms Whiteman had told him her left arm was much worse, and that he had reduced her hours from eight to six a day. He also stated as follows:
She ascribes a lot of her problems to her boss, whom she feels is unsupportive of her condition. She states that she receives no help at work in the way of extra workers, and her boss tends to sit down in the background and does not assist at the front desk even when she is overloaded with customers.
…
My prognosis is that she will recover fully, over the next few months, but I feel that her recovery to date has been delayed by the lack of acceptance of her injury and lack of support from her boss at the Post Office shop, and by her secondary emotional turmoil.
The clinical notes of Dr Beiers dated 20 June 2006 (Exhibit A8), in which he recorded Ms Whiteman experiencing interpersonal conflict at the post office, were drawn to Mr Alan Hardcastle’s attention in cross-examination. Mr Hardcastle who was Ms Whiteman’s manager at the time, denied such conflict.
Ms Whiteman told me that she was unsupported in the work restrictions she was to observe, and had at times, to work outside those. She said that she would ask Mr Hardcastle to assist with heavy parcels or lifting things off the floor, but that he was not always available, and Walter, the other male person in the post office, or Julie, a co-worker, would assist. She agreed when questioned that if there was no one available to help, she would simply leave the heavy parcel until someone could assist. In other words, I am satisfied that she was working within the restrictions she was given.
I also note that Dr Muratore who reported on 22 March 2006 considered Ms Whiteman may have been exaggerating her symptoms to a degree.
Dr Kemp who was the Applicant’s surgeon, reported on 2 May 2006, that Ms Whiteman had: movement of the shoulder is through a full range, adding: Ultrasound suggests the cuff to be intact. He also reported that Ms Whiteman complained of a burning discomfort over the anterior and lateral aspect of the left shoulder, worse with activity. He commented that she was on full duties with restricted lifting: she avoids lifting heavy objects and is controlling the load on her arm reasonably happily.
On 21 June 2006 Dr Kemp reported that:
movement of the shoulder is through a full range. Cheryl will continue to be careful with reaching and lifting with the arm away from the body and push into her strengthening exercises. If her condition deteriorates at some point down the track I will review her but I have left the ball in her court for the time being. [emphasis added]
I have noted from the last sentence which I have bolded, that by 21 June 2006 Dr Kemp was satisfied that Ms Whiteman was working full hours with appropriate restrictions, and managing, and that he would only see her if her condition deteriorated. He had found movement of the shoulder was through a full range both on 2 May and 21 June 2006.
However, on 3 July 2006 Ms Whiteman reduced her work from full-time to 25 hours a week, and continued to work on that basis until her resignation on 5 November 2010. At [25] of her statement (Exhibit A1), Ms Whiteman stated:
In July 2006 my hours were reduced at work at my request. It was the only way I felt I could get some relief. I was not being provided with work within my restrictions. I was not coping with full-time work, working for 7 hours 21 minutes every day … I reduced my hours for the personal reason that I wouldn’t have to deal with Mr Hardcastle’s resistance and I could rest my shoulder a little more, I thought it was in the best interests of all.
And at [26] If not for my shoulder injury, I would not have reduced my hours at work.
When questioned about Ms Whiteman’s move to work 25 hours a week on 3 July 2006 due to problems with management, Mr Hardcastle was unable to recall the reasons for her change from full-time hours. I found Mr Hardcastle’s evidence and his lack of recall of events regarding Ms Whiteman quite unhelpful.
I noted however that this Tribunal, in its decision dated 27 August 2010 with regard to Ms Whiteman’s claim for permanent impairment, which it refused, stated at [12]:
After about three months after she had resumed full-time work, Ms Whiteman decided to cease full-time work and work part-time, for 25 hours per week, She says her supervisor at the time was not sympathetic to her impairment but her decision to work part-time was not related to her impairment as such (and Australia Post documents confirm that it was for “personal” reasons), She now works shifts of five hours, from 12pm to 5pm, alternating between 28 hours one week and 22 hours the next.’
In coming to a decision regarding any incapacity Ms Whiteman suffered between 3 July 2006 and 5 November 2010, and the reasons why Ms Whiteman changed to a 25 hour week on and from 3 July 2006, I note that she agreed when asked at the hearing that she had not specifically mentioned her left shoulder to any doctors whom she consulted between 2006 and 2010. She said that she mentioned the shoulder in passing, because she knew the doctors could not do anything for her except to encourage her to do what she was already doing.
I am satisfied from the medical records that Ms Whiteman did not consult doctors about her left shoulder between 2006 and 2010. They would have been bound to make some record if she had mentioned her left shoulder. In other words, Ms Whiteman’s evidence regarding mention of the left shoulder to doctors between 2006 and 2010 was unreliable.
The evidence indicates Ms Whiteman used over the counter medications, such as Osteoeze and Denkorub, and the heat from a wheat bag at the relevant times. The clinical records of the Charlestown Medical and Dental Centre, (Exhibit R9), show a few prescriptions for Mobic and Panadeine Forte, both prescription drugs, but they appear to have been for a hip complaint between 2009 and 2011.
As is customary in these matters, the Applicant was examined by medico-legal doctors qualified by both her legal representatives, and by the Respondent. Dr Tomaso Mastroianni, an occupational physician, reported to Ms Whiteman’s legal representatives on 13 May 2014. He also gave oral evidence at the hearing by telephone. Dr Mastroianni reported that Ms Whiteman has a disruption of the rotator cuff of her left shoulder and chronic tendonitis.
Following questioning at the Tribunal Dr Mastroianni changed his position to acknowledge that the rotator cuff was likely not to be a large tear. He insisted however, that any tear was a disruption. By contrast, Dr Kemp who was Ms Whiteman’s surgeon, who operated on her, and saw her several times, and whose evidence I accordingly prefer over that of a medico-legal opinion formed after one consultation, reported on 2 May 2006, that Ms Whiteman had: movement of the shoulder is through a full range, adding: Ultrasound suggests the cuff to be intact.
Professor McGill’s reports were dated 10 December 2008, 7 March 2011, 21 August 2013 and 20 August 2014. In his report of 10 December 2008, Professor McGill noted that Ms Whiteman had made a good recovery after the surgery, and that Dr Kemp had recorded a full range of left shoulder movement on 2 May 2006 and 21 June 2006. He recorded Ms Whiteman telling him she had been stable over the last couple of years.
Professor McGill acknowledged that the range of movement does sometimes deteriorate, but opined that in this case, it was not explicable in terms of the diagnosis. He agreed Ms Whiteman had a minor rotator cuff tear which was not likely to have been caused by the incident of 29 July 2004. Professor McGill referred to Dr Kemp’s report noting that he had found the cuff to be intact.
Professor McGill considered that Ms Whiteman was embellishing her restriction of movement and intentionally withholding. He noted inconsistency in her presentation. He also noted that Ms Whiteman was not taking prescription medication, only minimal analgesia, heat packs, Dencorub and Glucosamine. He did not think she had suffered any significant injury to her cervical spine in the incident of 29 July 2004.
Professor McGill also stated that Ms Whiteman did not tell him the change to working 25 hours a week was due to her left shoulder, but because she understood that there was a need for workers in her area to reduce the total number of hours worked. He opined Ms Whiteman could work full-time with lifting restrictions.
In his report dated 21 August 2013, Professor McGill noted Ms Whiteman had not sought treatment for her left shoulder in recent years. He stated that when he saw her on 21 August 2013, she reported tenderness that was substantially more widespread in the region of the acromioclavicular joint than could be explained on the basis of the pathology.
Contrary to the views of Dr Muratore and Professor McGill, Dr Mastroianni was satisfied that Ms Whiteman reported in a consistent manner without embellishment. He commented that fluctuations occur, and symptoms may vary depending on the pathology and how it manifests itself on a particular day. He said that he relied on the patient’s reports, and his own examinations and findings.
I acknowledge that Ms Whiteman suffered a work related injury on 29 July 2004, and that liability was accepted by Australia Post. In coming to a conclusion that Ms Whiteman has not suffered incapacity for work which led to the reduction in hours to 25 a week from 3 July 2006, but rather that the change was for personal reasons, I have relied upon the following:
·I am satisfied from the evidence that Ms Whiteman made a good recovery following surgery by Dr Kemp on 7 February 2005.
·Ms Whiteman was off work for three months after the surgery, and made a graduated return to work. Dr Kemp stated that he expected Ms Whiteman would be fit for selected duties between four to eight weeks post surgery, increasing towards normal between 8 - 16 weeks.
·Pursuant to the assessments and medical certificates issued by Dr Beiers on 29 May 2006, 19 June 2006, and 5 July 2006, Ms Whiteman was certified fit to work full-time with lifting restrictions.
·Dr Kemp recorded a full range of left shoulder movement on 2 May 2006 and 21 June 2006.
·Dr Muratore considered in March 2006 that Ms Whiteman may have been exaggerating her symptoms to a degree.
·Dr Mastroianni’s opinion was that Ms Whiteman could work with restrictions, and he in fact recommended more restrictions than were already in place.
·Dr Mastroianni and Professor Kleinman’s evidence did not satisfy me that either had an understanding of Ms Whiteman’s duties. Their opinions in regard to restrictions and how incapacity had come about were accordingly unhelpful.
·At [25] of her statement (Exhibit A1), Ms Whiteman stated:
In July 2006 my hours were reduced at work at my request. It was the only way I felt I could get some relief. I was not being provided with work within my restrictions. I was not coping with full-time work, working for 7 hours 21 minutes every day … I reduced my hours for the personal reason that I wouldn’t have to deal with Mr Hardcastle’s resistance and I could rest my shoulder a little more, I thought it was in the best interests of all.
And at [26] If not for my shoulder injury, I would not have reduced my hours at work.
The main reason for the reduction in hours was personal, and conflict with Mr Hardcastle.
·I am satisfied from the medical records that Ms Whiteman did not consult doctors about her left shoulder between 2006 and 2010. They would have been bound to make some record if she had mentioned her left shoulder. In other words, Ms Whiteman’s evidence regarding mention of the left shoulder to doctors between 2006 and 2010 was unreliable.
·Ms Whiteman used over the counter medications, such as Osteoeze and Denkorub, and the heat from a wheat bag between 2006 and 2010.
I note Ms Whiteman’s evidence that on or about 12 April 2010, staff at the Belmont post office were advised there was to be a full ROM review which was to assess how the business was running, and what cost cutting could be initiated. She understood the plan was to have two full-time, and two part-time positions. She said that she did not hear anything further about the re-organisation, and on 15 May 2010, suffered a heart attack and was hospitalised. She attributed that, she told me, to the stress at work, and her application to this Tribunal, the hearing of which took place on 16 and 17 March 2010.
Ms Whiteman was on sick leave from 17 May 2010, and following her recovery, travelled to the USA with Mr Hiles as planned, from 9 August 2010 to 19 September 2010 to visit her daughter. She returned to work on 27 September 2010 as scheduled, and worked her regular five hours, noon to five pm. She said that no one said anything to her about the re-organisation.
Ms Whiteman said that the following day, her second day back from leave, Ms Kim Holstein, (who I note then held the position of PM3 Network Support), met with her, and told her a re-organisation had taken place, and that there were to be three full-time positions, (and no part-time positions), at Belmont. She said that she was told to report to Warner’s Bay Post Office on that Friday, and that she would be moved from place to place throughout Hunter West retail.
By way of contrast, Mr Hardcastle corroborated Ms Holstein’s evidence that Ms Whiteman would remain at the Belmont post office until a suitable position at another location became available.
Ms Holstein said in her oral evidence that Ms Whiteman had not been informed of the results of the survey and decisions taken until she returned because she was away on sick leave. Ms Holstein stated at [17] of her statement:
I do not believe Ms Whiteman would have accepted a position at another Post Office in the area. She was in her comfort zone at Belmont and would not have been willing to relocate and at this time her main objective was to obtain a redundancy package. …
And at [25]: Ms Whiteman had asked me on numerous occasions if there were any redundancy packages available for her. From these inquiries I assumed that Ms Whiteman was eager to cease work.
At [26] and [27], Ms Holstein stated that she saw Ms Whiteman at the Belmont post office after her resignation and had a conversation with her as follows:
I clearly recall a conversation with Ms Whiteman on this day, where she said to me that she could not be bothered with all the crap at Australia Post and believed it was in her own interests to resign given her recent bout of ill health.
During the same conversation Ms Whiteman also said to me that she was going to resign because her partner was going to obtain a Voluntary Redundancy Package and that would allow them to conduct renovations on their house and travel overseas to see her daughter and have an overseas holiday ….
Ms Holstein stated that she did not recall the conversation, but that: I would never have advised Ms Whiteman that she was going to be moved from office to office throughout the Hunter as that would not conform with the RRR agreement …. In her oral evidence she emphasised that that would not fit with the management’s practices, and that Ms Whiteman could stay at Belmont until a suitable position came up.
Ms Whiteman said that she was very angry because she had not told Ms Holstein that she wanted to give up work or go travelling. She said that she resigned on 14 October 2010, and used up her sick leave. The records indicate the resignation was effective on 5 November 2010.
Ms Whiteman said that she was not told that her restrictions would be taken into account elsewhere, and feared she would not have assistance with lifting. She says she was not told she had a job. In regard to the above, Ms Holstein stated at [31]:
I cannot recall Ms Whiteman ever discussing or complaining about her shoulder injury or raising concerns that her work restrictions were not being correctly implemented, as if that was the case I am certain that Ms Whiteman would have raised or complained to either myself, HR or the Unions. There was never any mention or discussion of the shoulder injury being the reason for her resignation.
Mr Hardcastle, currently Postal Manager at the Belmont post office, and during the relevant period, Ms Whiteman’s PM1, gave oral evidence, and provided a statement dated 8 May 2015 (Exhibit R7). He was adamant that Ms Whiteman’s restrictions were being observed, and that assistance was available to her whenever she asked, unless she chose to work outside those restrictions.
I am satisfied from the evidence of Ms Holstein and the contemporaneous handwritten note dated 16 September 2010, that Ms Whiteman would have been able to stay at Belmont until a suitable position was found for her. I am satisfied from the evidence that the lifting restrictions were in place, and would remain so wherever she worked.
I do not accept Mr Grey’s submission that Ms Whiteman was not offered a job because there was no written offer given to her detailing conditions, rates of pay and other details.
As noted above, Ms Whiteman resigned from Australia Post effective 5 November 2010, In her letter of resignation, she stated:
Due to ongoing medical problems with my left shoulder as a result of a work related injury suffered at Belmont Post Office and also work related stress due to the abolishment of my PSO position without my consultation, I feel for the sake of my health and wellbeing.
I hereby tender my resignation from Australia Post as from the close of business on Friday, 5 November 2010.
I prefer the evidence of Ms Holstein (email dated 25 November 2013), which was that initially Ms Whiteman sought a redundancy and was informed it was not available to part-time staff. Ms Holstein noted that the Applicant came into the office prior to her resignation, and advised that, as her partner had obtained a voluntary redundancy, she was looking at leaving so they could travel, and also do some renovations to their property. Ms Holstein stated the Applicant advised she would probably be leaving due to her health scare she realised that life was too short. Ms Whiteman denied having said that.
I noted Professor McGill’s further report on 20 August 2014 in which he stated that Ms Whiteman confirmed previously reported history that while she was on annual leave her position was abolished, and that she was offered another position, but that she elected to retire instead. Professor McGill noted that between May 2007 and 2010 Ms Whiteman had experienced other medical problems which she reported to her doctors, but that she had not mentioned any left shoulder symptoms. He noted that there was no mention of her left shoulder until she returned from leave and found that her work position had changed, which led him to the conclusion that she did not have any substantial ongoing shoulder symptoms subsequent to recovery from her shoulder surgery in 2005.
In coming to a decision that Ms Whiteman did not resign effective 5 November 2010 due to incapacity arising out of her compensable injury, I have preferred the medical evidence, and that of Ms Holstein detailed in the paragraphs above. I am satisfied from that evidence that Ms Whiteman had signalled her intention of seeking a redundancy, which it seems she could not be offered because she worked part-time, and that she did not resign in November 2010 due to incapacity for work. She had been certified fit for full-time work with lifting restrictions by her doctors in 2006, and had done full-time work prior to 3 July 2006. She had not sought medical assistance or even mentioned her left shoulder to doctors between 2006 and 2010, and had relied solely on over the counter medication.
I am satisfied from the evidence that Ms Whiteman was, according to Australia Post custom, only informed of the details of the re-organisation on her return from sick and recreation leave. I accept from the fact she attended a meeting before falling ill, that she knew there was a re-organisation taking place. I accept the evidence of Ms Holstein which was that any lifting restrictions would have been observed wherever she was eventually posted.
I reject Mr Grey’s submission that Ms Whiteman was not offered a position because there was no written offer with details of the conditions of employment provided for her. I accept Ms Holstein’s evidence that Ms Whiteman could have stayed at Belmont until a suitable position was found for her, and that the RRR rule would have to be observed.
The decision under review must be affirmed.
MATTER 2014/0320 – INCAPACITY FOR WORK SINCE 5 NOVEMBER 2010
The issues to be decided in this matter are whether since 5 November 2010 the Applicant has been incapacitated for work, either totally or partially, as a result of the accepted injury. If I find that Ms Whiteman is partially incapacitated for work, I must determine whether she has been capable of earning in suitable alternative employment, and if so, what that earning capacity is. If Ms Whiteman is either totally or partially incapacitated for work, then Australia Post would have to make weekly payments of compensation.
I have already found in relation to Matter 2015/4164 discussed above that Ms Whiteman did not change her work hours to 25 hours a week on 3 July 2006 due to incapacity arising out of her accepted right shoulder injury, but rather that it was for personal reasons, in particular because of conflict with Mr Hardcastle. I am satisfied from the medical evidence that Dr Beiers certified Ms Whiteman capable of working full-time with lifting restrictions, in June and July 2006, which the post office observed by providing her assistance.
As noted above, I do not accept that Ms Whiteman resigned from Australia Post effective 5 November 2010 because of incapacity arising out of her compensable 2004 injury. She had been certified fit for full-time work with lifting restrictions, and had worked full-time prior to 3 July 2006. She had not sought medical assistance, or even mentioned her left shoulder to doctors between 2006 and 2010, and had relied solely on over the counter medication.
I have noted Ms Whiteman’s evidence about the difficulties she experiences with daily tasks due to her left shoulder injury. She said that included lowering kitchen shelves in order not to have to reach up too high, avoiding heavy housework, avoiding preparation of hard vegetables such as pumpkin, dressing more slowly, difficulties using a hair brush and hair dryer, and shopping more often to avoid heavy carrying.
Ms Whiteman referred at [36] of her statement, to her partner assisting with heavy housework, and changing the linen. At the hearing, Ms Whiteman told me that Mr Hiles, whom she has known since 1991, has since 2009, no longer been her partner, and that when he visits, he uses the granny flat rather than living with her. She also told me that he still assists her with various household tasks, and that they continue to go on holidays together. Mr Hiles’ agreed that he assists with tasks which Ms Whiteman finds difficult. The undisputed evidence is that they travelled to the USA to visit Ms Whiteman’s daughter in August/September 2010. I noted that he did not purchase his own house until 2013.
Mr Hiles’ statement was Exhibit A2 dated 10 March 2015. He also gave oral evidence, and stated that he had known the Applicant since 1991. He corroborated Ms Whiteman’s evidence that he does the heavy work around the house and garden, and some maintenance. He said that Ms Whiteman did what she was able to, but struggled with some tasks.
He had also worked at Australia Post, and had taken a voluntary redundancy in 2010. He stated that the Applicant reduced her hours of work at the recommendation of her doctor, and because she was not getting the assistance she needed from Australia Post. He stated that Ms Whiteman had not discussed leaving Australia Post with him.
I find on the basis of the medical reports that Ms Whiteman was medically certified as able to work full-time with lifting restrictions before she changed her work hours to 25 per week on 3 July 2006 for personal reasons. I do not accept her explanation for her resignation in 2010, and I cannot find that she has suffered incapacity for work due to her compensable injury since 2010. Accordingly the decision under review must be affirmed.
MATTER 2013/5220 – PERMANENT IMPAIRMENT
The task in Matter 2013/5220 is to assess whether the Applicant is entitled to any, and if so, what compensation pursuant to sections 24 and 27 of the SRC Act in respect of her accepted left shoulder injury. That will include deciding whether, if she suffers impairment, whether that impairment is permanent, (section 24(2) of the SRC Act), and, if so, whether it has reached the threshold 10%.
There was no disagreement between the parties that Ms Whiteman has suffered impairment as a result of her work related injury, and that it is permanent. I accept that. What was in question, however, was whether she reached the 10% threshold required for compensation pursuant to sections 24 and 27 of the Act.
I note by way of completeness that Ms Whiteman had been denied compensation for permanent impairment of her left shoulder condition by this Tribunal in an earlier decision in 2010. (Whiteman v Australian Postal Corporation [2010] AATA 645).
Following that decision of the Tribunal on 27 August 2010, Ms Whiteman sought review at the Federal Court which also found against her. The Court did however instruct on the correct use of the AMA Guides and the ‘Comcare Guide to the Assessment of the Degree of Permanent Impairment’ (Comcare Guide), (Whiteman v Australian Postal Corporation [2011] FCA 1427).
Professor Leon Kleinman, orthopaedic surgeon
Professor Leon Kleinman first reported on 7 June 2007 on behalf of Ms Whiteman’s legal representatives. He noted Ms Whiteman felt pain in her neck when turning to the left, and that she reported her left shoulder always throbbing and sore. He assessed 11% permanent impairment using the Combined Values Chart in the ‘AMA Guides to the Evaluation of Permanent Impairment 5th Edition (AMA Guides).
I had a number of Professor Kleinman’s reports before me, the following in particular, Exhibit A4 dated 22 September 2009, Exhibit A5, dated 11 January 2015, Exhibit A6, dated 2 October 2014, and Exhibit A7, also dated 2 October 2014. He also gave oral evidence by telephone at the Tribunal.
In his report dated 22 September 2009, (Exhibit A4), Professor Kleinman opined that Ms Whiteman’s condition had reached maximal medical improvement. He referred to the report of Dr Spittaler dated 17 April 2009 who suggested Ms Whiteman has a cervical spine injury over and above her left shoulder injury. He recommended she have an MRI scan of her cervical spine.
In a report dated 10 April 2012, Professor Kleinman described Ms Whiteman’s medication as taking Osteoeze, rubbing Dencorub into her left shoulder, and using a wheat bag at night for the pain in her left shoulder. In various of his reports he has described the use of the appropriate Tables to measure permanent impairment, in particular in relation to the Applicant, (who has undergone arthroplasty). He opined in the report dated 10 April 2012, that her WPI was 10%.
In his report dated 2 October 2014 (Exhibit A6), Professor Kleinman reported that Ms Whiteman had constant ongoing pain in her left shoulder. He did not think that the effects of the shoulder condition would cease. He also referred to repetitive use of the left arm aggravating the pain in her left shoulder, but agreed however in cross-examination that he had no information or details of such activities. Professor Kleinman also referred to Professor McGill’s report dated 20 August 2014, stating that he disagreed with Professor McGill that Ms Whiteman’s presentation with respect to the shoulder since 2010 had been strongly influenced by non-physical factors.
In his further report also dated 2 October 2014 (Exhibit A7), Professor Kleinman confirmed he uses a goniometer routinely to test patients. He commented that the variation in the range of movement obtained on examination depends upon pain, the degree of synovitis in the joint, or fatigue. He stated that his impression of Ms Whiteman was that she was not making inconsistent efforts which caused the various measurements of her shoulder movements.
Professor Kleinman also stated that he disagreed with Dr Mastroianni that Ms Whiteman has a disruption of the rotator cuff of her left shoulder. He did not agree that the tear was so extensive that she could not use her left shoulder. Professor Kleinman agreed she has chronic tendonitis of her shoulder as well as a subdeltoid bursitis which is causing ongoing pain in her left shoulder (attributable to the initial injury).
Whilst Dr Kemp noted in his report on 2 May 2006, that the ultrasound showed Ms Whiteman’s cuff to be intact, Professor Kleinman stated that in his opinion there was a tear, and as it was not repaired during the surgery, it would still be present. When asked why then he thought Ms Whiteman did not complain to doctors she saw about her shoulder between 2007 and 2010, he replied that people just get used to chronic pain, as she did.
Professor Kleinman agreed on reading Dr Kemp’s reports that the surgery had improved the situation for Ms Whiteman’s left shoulder, and that she was functionally improved. I noted that Dr Beiers’ medical certificates dated 19 June 2006, 5 July 2006, and 20 July 2006 all certified Ms Whiteman for full duties or eight hours a day with lifting restrictions.
When asked how he reconciled the differences between the observations of movement recorded by Dr Kemp, Dr Muratore and Professor McGill with his, Professor Kleinman said that he relied on his own findings.
In his report dated 11 January 2015 (Exhibit A5), Professor Kleinman recalculated Ms Whiteman’s measure of WPI as 9%.
Professor Neil McGill, rheumatologist
I note that Professor McGill did not use the goniometer when measuring Ms Whiteman’s level of permanent impairment and assessing her, and that the Federal Court clarified the use of the AMA Tables in Whiteman v Australian Postal Corporation [2011] FCA 1427.
In his report dated 7 March 2010, Professor McGill measured a WPI of 7%. On another occasion, Professor McGill stated that Ms Whiteman did not demonstrate evidence of impingement, and there was no wasting of the left shoulder girdle or of the left proximal arm. He assessed 2% WPI without using the AMA Tables. Accordingly, notwithstanding his expertise in making such measurements, and the importance of his clinical judgment, the measurement could not be taken into account.
In his report of 20 August 2014 Professor McGill acknowledged the Federal Court’s direction with regard to the use of the AMA Tables, and using the mandated technique, measured a 6% WPI of Ms Whiteman.
The delegate making the reviewable decision dated 30 September 2013 held on the basis of the report of Professor Leon Kleinman, an orthopaedic surgeon, who found a 9% whole person impairment (WPI), and the report of Professor Neil McGill, a rheumatologist, dated 21 August 2013, who found a 2% WPI, that Ms Whiteman did not meet the 10% threshold to be eligible for compensation for permanent impairment. The delegate accordingly affirmed the determination of Australia Post of 4 September 2013.
I am satisfied on the basis of the evidence discussed in the paragraphs above, that Ms Whiteman did not seek medical assistance for her left shoulder between 2006 and 2010, and that there is no evidence before me to convince me that her permanent impairment has worsened since leaving Australia Post on 5 November 2010.
I did not give weight to the opinions of Professor Kleinman and Dr Mastroianni regarding the negative impact of repetitive work on Ms Whiteman’s shoulder as it was clear to me that neither had an understanding of Ms Whiteman’s duties. I am satisfied from the evidence before me that her duties did not include repetitive work. Professor Kleinman and Dr Mastroianni’s opinions in regard to restrictions, and how incapacity was impacted were accordingly unhelpful.
The decision under review must be affirmed.
DECISION
118. The Tribunal affirms the decision in Matter 2013/5220.
119. The Tribunal affirms the decision in Matter 2014/0320.
120. The Tribunal affirms the decision in Matter 2015/4164.
121. No costs may be awarded.
I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member ...............................[sgd].........................................
Associate
Dated 11 December 2015
Dates of hearing 9-12 June 2015; 15 October 2015 Counsel for the Applicant Mr L Grey Solicitors for the Applicant Bale Boshev Lawyers Counsel for the Respondent Mr M Gollan Solicitors for the Respondent SPARKE HELMORE
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