Mills and Comcare [2002] AATA 35 (21 January 2002)

Last Updated: 22 January 2002

DECISION AND REASONS FOR DECISION [2002] AATA 35

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/86

GENERAL ADMINISTRATIVE DIVISION )

Re ANNE MARIE MILLS

Applicant

And COMCARE

Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member

Date 21 January 2002

Place Brisbane

Decision The Tribunal affirms the decision to cease payments of compensation to Anne Marie Mills on and from 8 January 1999.

............(Signed)..................................

D.W. MULLER

SENIOR MEMBER

CATCHWORDS

COMPENSATION - fibromyalgia syndrome - whether a disease, injury or ailment contributed to by work

REASONS FOR DECISION

Mr. D.W. Muller, Senior Member

1. This is an application to review a decision to cease payments of compensation to the applicant, Anne Marie Mills, on and from 8 January 1999.

2. The applicant suffers from intermittent pain of varying degrees and types in her shoulders, neck, right arm and thoracic region. She also has sore spots from time to time all over her body. She has no objectively identifiable major medical impairment. She has been diagnosed as having fibromyalgia which, apparently, is a diagnosis made by some medical practitioners when the patient complains of pain in their muscles and joints but the medical person cannot find any specifically diagnosable medical condition.

3. The applicant claims that whatever it is that she suffers from, it is related to her work at Australia Post in 1998.

4. The following facts are not in dispute. The Tribunal finds that:

(i) On 4 March 1997, Ms. Mills injured her back when "taking an overweight bag to the mower shop in Buderim for the postie". She had to drag the bag out of the car and drag it up a slope to the shop. She felt back pain almost straight away. A claim for compensation was lodged on 4 April, 1997. She received compensation from the respondent based on six days off work.

(ii) On 30 July 1997, Ms. Mills was transferred to Caloundra Delivery Centre.

(iii) On 12 November 1997, Ms. Mills injured her back, left shoulder, both arms and legs when, while delivering letters her motorcycle collided with a vehicle on a roundabout and she fell to the ground. Australia Post accepted liability and she was paid compensation for five working days lost between 12 November, 1997 and 19 November 1997. She was also paid medical expenses. The total compensation payment was $1,687.29.

(iv) On 30 April 1998, Australia Post introduced new sorting frames at the Caloundra Delivery Centre.

(v) On 24 June 1998, Ms. Mills lodged a claim for compensation in relation to injuries being sustained to her back, both shoulders, neck and right arm in the course of performing work on the new sorting frames introduced at the Caloundra Delivery Centre. (It was initially thought that there could be some connection between the applicant's symptoms and her motor cycle accident on 12 November 1997.)

(vi) On 3 July 1998, Australia Post accepted liability for an episode of soft tissue strain affecting Ms. Mills' back and shoulders as a result of the new sorting frames. The medical evidence did not establish any ongoing relationship with the motor vehicle accident in November 1997 and current symptoms. It was acknowledged that postural factors associated with adapting to new equipment had been a contributing factor to the soft tissue strain and associated mechanical back pain suffered by Ms. Mills.

(vii) On 8 January 1999, Australia Post made a determination that the effects of the injury sustained on 12 November 1997 (motorcycle accident) had ceased and that the condition of fibromyalgia syndrome from which Ms. Mills suffered, was not identifiable as a disease or ailment that has been contributed to in a material degree by her employment with Australia Post.

5. The applicant gave evidence to the Tribunal that the new sorting frames introduced at the Caloundra Delivery Centre in April 1998, changed the way in which she was accustomed to move her body to sort mail. Within a short time of the change she began to suffer pain in her lower back which got progressively worse. She also began to suffer pain in her upper back, right shoulder, right shoulder blade, neck and right arm. She was off work from 25 May 1998 to 3 June 1998. She then returned to work on reduced hours of six hours per day from 4 June 1998 to 8 July 1998. She then returned to full-time work (38 hours per week) on 8 July 1998.

6. Ms. Mills gave evidence that from the time when she recommenced full-time work in July 1998 the following pattern emerged:

(i) She continued to have severe difficulties in performing her work, particularly with her shoulders, upper back, neck and right arm. She had a few days off work from time to time between July 1998 and January 1999. She was paid sick leave for those periods off work.

(ii) On or about 22 January 1999 she sought treatment from her general practitioner, Dr. Herbert, who referred her to Dr. Winstanley, orthopaedic surgeon. Dr. Winstanley recommended that she avoid sorting work.

(iii) From January until about October 1999, she worked full-time but without doing any sorting work. Nevertheless she continued to have problems with her upper back, shoulders, neck and right arm.

(iv) In October 1999, her problems were particularly severe. Dr. Herbert issued her with a certificate limiting her work to five hours per day.

(v) She did five hours per day, which included delivery work, but without any sorting, from October 1999 until October 2000. She was able to manage the work but with some difficulty.

(vi) In October 2000, the Australia Post doctor, Dr. Goode, reduced her hours to four hours per day. She believes that she is capable of doing more than four hours per day provided that she does not do any sorting. She is currently doing motor cycle deliveries and walking deliveries. She takes the occasional day off work if her pain becomes too intense.

7. The Tribunal heard and received evidence from a large number of medical witnesses including two orthopaedic surgeons, two rheumatologists, and two specialists in occupational medicine. In my view the evidence is overwhelmingly to the effect that Ms. Mills does not suffer from any diagnosable disease, injury or ailment. This is simply a case of a person whose muscles get tired and sore when she does physical work such as sorting letters. Her situation is best summed up by Dr. Boys, orthopaedic surgeon, who said:

"There is no evidence of upper limb muscle wasting. The scapular muscles are preserved. There is a full range of movement of both shoulders without pain, instability of impingement. The elbows, wrists and hands are clinically normal to examination. Neurovascular examination of the upper limbs shows no abnormality.

Plain radiographs of the cervical spine, right shoulder and right elbow (22 May 1998) show no abnormality.

Ultrasound of the right shoulder (22 May 1998) shows no abnormality.

Radiographs of the lumbar spine (22 May 1998) show mild narrowing of the L5/S1 disc space.

It is my opinion that Ms. Mills experiences simple postural and activity related muscle strain in the musculature of the neck and shoulders. This lady's complaints reflect simple physiological strain and there is no evidence of objective signs of physical dysfunction other than minor non-specific tenderness in the musculature of the cervical and thoracic regions."

8. The Tribunal affirms the decision under review that on and from 8 January 1999, Anne Marie Mills ceased to suffer from the effects of an injury which she incurred while working at Australia Post on 12 November 1997, and that her condition of fibromyalgia syndrome is not a disease or ailment that has been contributed to in a material degree by her employment with Australia Post.

I certify that the 8 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member

Signed: .....................................................................................

B. Hitchcock, Secretary

Date/s of Hearing 13, 14 August 2001

Date of Decision 21 January 2002

Counsel for the Applicant Mr. Boulton

Solicitor for the Applicant Maurice Blackburn and Cashman

Counsel for the Respondent Miss Downes

Solicitor for the Respondent Clarke and Kann