Bojanovski and Australian Postal Corporation [2010] AATA 29 (18 January 2010)

Last Updated: 18 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 29

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1551

GENERAL ADMINISTRATIVE DIVISION		)
	Re		ZIVKO BOJANOVSKI

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Ms N Bell, Senior Member Dr J Campbell, Member

Date 18 January 2009

Place Sydney

Decision

The decision under review is affirmed.

.....................[sgd].........................
Ms N Bell, Presiding Member

CATCHWORDS –COMPENSATION – Commonwealth employees – Permanent impairment – assessment of degree – medical examination - measurement of impairment

Safety, Rehabilitation and Compensation Act 1988

Comcare v Amorebieta (1996) 66 FCR 83

REASONS FOR DECISION

Ms N Bell, Senior Member

1. Mr Bojanovski started working with Australia Post in 1975 and continues to work there now as a mail sorter on light duties of four hours per day.
2. In 2005, Mr Bojanovski injured his left shoulder. He experienced severe pain and limitation of movement and was treated with physiotherapy, injections and pain medication. In 2006, Mr Bojanovski had arthroscopic surgery on his shoulder performed by an orthopaedic surgeon, Dr Daniel Biggs, and subsequently his shoulder began to improve. He could lift his arm and felt much less pain. Currently, his shoulder is better than it was some nine months after the operation. However, he still feels pain if he lifts his arm too much and some days are better than others. Mr Bojanovski now works with a 5 kilogram weight restriction in respect of his left arm for overhead work and a 10 kilogram weight restriction generally. He is also required to change tasks every 30 minutes. He works occasional overtime. Mr Bojanovski is happy with the way his supervisors are treating him at work.
3. Mr Bojanovski made a claim for a lump sum payment for permanent impairment under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988. Section 24(7)(b) of the Act provides that compensation is not payable if the degree of permanent impairment assessed under the relevant guide is less than 10%. The relevant guide is the second edition of the Guide to the Assessment of Permanent Impairment. The relevant table in the Guide is
   Table 9.11. Australia Post rejected Mr Bojanovski’s claim on the basis that it was assessed that he had an impairment of less than 10%.
4. These facts and this law yield a sole issue for consideration in this application: does Mr Bojanovski have a permanent impairment of his right shoulder of at least 10%?
5. The central expert evidence was given by orthopaedic surgeon
   Dr Drew Dixon and consultant rheumatologist Dr Neil McGill. In a novel approach to the contest of differing assessments of the percentage of permanent impairment under the Guide, the Tribunal arranged for both experts to examine Mr Bojanovski’s range of movement in the areas required by the Guide, in the presence of each other and the Tribunal. Each doctor was then required to advise the Tribunal of the results of their respective examinations. The experts were then questioned by the Tribunal and by counsel and asked to comment on each other’s findings.
6. Also in evidence were reports of orthopaedic and spinal surgeon
   Dr David Maxwell and orthopaedic surgeon Dr George Weisz, an assessment done by Peak Conditioning, and reports of Dr Biggs, Mr Bojanovski’s treating Orthopaedic Surgeon.

THE EXAMINATION BEFORE THE TRIBUNAL

7. The results obtained by Drs Dixon and McGill on examination before the Tribunal were different, but so were their methods of examination and assessment.
8. Dr Dixon examined Mr Bojanovski by asking him to perform each movement (extension, flexion, exetrnal and internal rotation, abduction and adduction) from the neutral position. He then measured the angle of the movement with a goniometer, a protractor like instrument, announcing the measurement before requesting the next movement from the neutral position.
9. Dr McGill’s method of examination was more dynamic, asking Mr Bojanovski to make the movements in fluid, swift succession and with some repetition. He encouraged Mr Bojanovski in his movements, generally demonstrating the movement requested. He did not announce the measurements until the end of the examination and made the measurement of each range of motion by eye.
   Mr Bojanovski did not return to the neutral position until the end of the examination.
10. Another difference in the examinations was that while Dr Dixon had
    Mr Bojanovski move only his left arm, Dr McGill had him move both arms simultaneously. However, when asked about this difference, Dr Dixon said he agreed it is valid to look at both sides simultaneously in order to do a direct comparison. He said he saw a full range of motion on the right side. He also said he saw no problem with the speed at which Dr McGill had the movements performed.
11. Dr McGill said that uninterrupted, fluid and repetitious movement will aid in examination of reproducibility and consistency. He noted that in the early part of his examination Mr Bojanovski demonstrated restricted movements in his unaffected right shoulder until Dr McGill commented to him on this, at which point Mr Bojanovski began to show a full range of movement of his right shoulder. The Tribunal also observed this. Dr McGill put forward the explanation that such a change in movement in the examination demonstrates that a person is thinking hard about his movements for reasons other than simple discomfort.
12. In relation to the method of recording results on examination, Dr Dixon said that different examiners do it differently: some record after each movement and others record all movements at the end of the examination. He accepted both methods as valid. Dr McGill said that stopping to record a measurement after each movement can interfere with the flow of movement that allows an examiner to observe degree of consistency.
13. The outcome of the two examinations was that both doctors agreed on the range of movements in Dr Dixon’s examination. However, Dr McGill found inconsistency within his examination, with Mr Bojanovski achieving results at both the range recorded by Dr Dixon in his examination and a significantly greater range. Dr Dixon said he considered that Mr Bojanovski was “warmed up” by the time he was examined by Dr McGill. He also said he made no assertion of unfairness in the method used by Dr McGill.

14. The following is a table of results obtained by each examination:

	Table 9.11.1(a)				Table 9.11.1(b)				Table 9.11.1(c)				Total
	Flexion	Loss	Extension	Loss	Int Rot	Loss	Ext Rot	Loss	Abduction	Loss	Adduction	Loss
Dixon 25.11.09	105	3	20	1	30	2	35	1	100	2	30	1	10
McGill 25.11.09	145 110	1 3	30 20	1 1	80 40	0 2	60 30	0 1	145 100	1 2	50 30	0 1	3 10

15. These results are largely in accordance with previous examinations performed and reported on by Dr McGill and Dr Dixon.
16. Counsel for Mr Bojanovski submitted that we should be wary of Dr McGill’s methodology on examination which was like that of a “gym” instructor and may have also given rise to an exaggerating effect from the sheer momentum of movement. We are not convinced by this submission. Dr Dixon made no criticism of Dr McGill’s method. The fact is that there were inconsistencies in Mr Bojanovski’s range of motion in that examination.
17. We do not draw from this any negative inference about Mr Bojanovski’s credit. There are many possible explanations for inconsistency, including self consciousness or nervousness, as well as the possibility of a greater effectiveness of a particular method of examination.

OTHER EXAMINATIONS AND EVIDENCE

18. We note that in examinations on 21 February 2008 and 13 October 2008,
    Drs Maxwell and Wiesz found the following results:
    

	Table 9.11.1(a)				Table 9.11.1(b)				Table 9.11.1(c)				Total
	Flexion	Loss	Extension	Loss	Int Rot	Loss	Ext Rot	Loss	Abduction	Loss	Adduction	Loss
Weisz	90 90	4 4	20 20	1 1	20 20	2 2	50 50	1 1	30 70	4 3	70 30	0 1	12 12
Dixon	115	3	30	1	30	2	40	1	90	2	30	1	10
McGill	160	1	60	0	70	1	70	0	140	1	50	0	3
Maxwell	165	1	40	1	75	1	75	0	175	0	45	0	3

19. We also note that Dr Wiesz described Mr Bojanovski as having had a particularly painful day on the day he examined him. We were urged, on this basis, to give little weight to Dr Wiesz’s report.
20. Dr Biggs, Mr Bojanovski’s treating orthopaedic surgeon, reported on
    14 February 2007 that Mr Bojanovski had regained 85% range of motion with
    Grade V cuff power on all planes following his rotator cuff repair surgery. Dr Biggs described Mr Bojanovski as being able to use his arm freely within pain limits. We note that this certainly does not amount to an assessment under the Guide, but it does indicate very substantial improvement following the surgery.
21. Following his surgery, Mr Bojanovski completed an eight week exercise program with Peak Conditioning. In February 2007, Peak Conditioning’s final report described his shoulder mobility as “close to normal range”.

DOES MR BOJANOVSKI HAVE A PERMANENT IMPAIRMENT OF HIS RIGHT SHOULDER OF AT LEAST 10%?

22. We note that the introduction to Table 9.11 says:

“The range of motion is expressed as the two achievable limits of active motion in each direction through the normal range of motion.” (emphasis added)

23. And later:

“The WPI rating for restriction of motion in one direction is determined according to the active motion that can be achieved in that direction.” (emphasis added)

24. We consider that in the examination by Dr McGill, Mr Bojanovski demonstrated the “achievable limits” of active motion.
25. We were referred to the judgment of the Federal Court in Comcare v Amorebieta (1996) 66 FCR 83. We note that judgment concerned the first edition of the Guide which included rather different tables and methods of measurement of impairment, but we also note that the judgment held that it is not necessary for a person to demonstrate a precise measure of impairment 100% of the time. We note that Mr Bojanovski has demonstrated a greater range of movement, more in line with the examination result obtained by Dr McGill’s examination before the Tribunal, on previous occasions before Drs McGill and Maxwell and in accordance with the observations of Dr Biggs and of Peak Conditioning. It is only Dr Dixon and Dr Wiesz who have found Mr Bojanovski to have been so severely limited in range of movement on an earlier occasion. We note that the examination by Dr Wiesz is amenable to some discounting,
26. Overall, for the reasons set out above, we prefer the opinion of Dr McGill whose examination we find unproblematic. It follows that we find that Mr Bojanovski does not have a permanent impairment of 10% or more.

DECISION

27. The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell,
Senior Member, and Dr M Thorpe, Member

Signed: .............................[sgd]...............................................

Associate: Lloyd Doherty

Dates of Hearing 25 & 26 November 2009

Date of Decision 18 January 2010

Date of written reasons 18 January 2010

Representative for the Applicant Mr Leo Grey, Barrister

Representative for the Respondent Mr Mark Best, Barrister