Cochrane and Australian Postal Corporation [2010] AATA 31 (18 January 2010)

Last Updated: 29 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 31

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/1080

GENERAL ADMINISTRATIVE DIVISION

)

Re

Robert Cochrane

Applicant

And

Australian Postal Australian

Respondent

DECISION

Tribunal

Jill Toohey, Senior Member Dr John Campbell, Member

Date 18 January 2010

Place Sydney

Decision

The Tribunal affirms the decisions under review

................[sgd]..............................
Senior Member Jill Toohey, Presiding Member

CATCHWORDS

COMPENSATION – left shoulder injury – work as a postal delivery officer – whether shoulder condition related to employment – whether a permanent impairment – degree of impairment – decisions under review affirmed.

Safety, Rehabilitation and Compensation Act 1986

REASONS FOR DECISION

18 January 2010	Senior Member Toohey
Background

1. Robert Cochrane claims compensation under the Safety, Rehabilitation and Compensation Act 1986 (SRC Act) for an injury to his left shoulder which he says occurred while he was working as a postal delivery officer in the respondent’s Parramatta Delivery Centre on 27 July 2007.
2. Mr Cochrane seeks review of two decisions made by the respondent:

(i) a decision made on 31 August 2007, affirmed on 15 January 2008, denying liability under s 14 of the SRC Act; and

(ii) a decision made on 11 February 2007, affirmed on 11 February 2009, denying liability under s 24 of the SRC Act for permanent impairment, and under s 27 for non-economic loss.

The issues

3. The respondent does not dispute that Mr Cochrane suffers from capsulitis of the left shoulder as well as a tear of the supraspinatous tendon (a “rotator cuff tear”).
4. Mr Cochrane has the same conditions in his right shoulder. The right shoulder does not form part of his claim.
5. The respondent denies that Mr Cochrane’s left shoulder condition is related to his employment.
6. It is common ground that the capsulitis in Mr Cochrane’s left shoulder is not related to his employment. The issues to be determined are:

(i) whether the rotator cuff tear in Mr Cochrane’s left shoulder is related to his employment;

(ii) if so, whether it constitutes a permanent impairment;

(iii) if so, whether the degree of impairment is such that Mr Cochrane is entitled to compensation under s 24 and s 27 of the SRC Act.
The legislation

7. By s 14 of the SRC Act, the respondent is liable to pay Mr Cochrane compensation in respect of an injury suffered by him if it results in death, incapacity or impairment.
8. Section 5A relevantly provides that injury means:

           (a) a disease suffered by an employee; or

          (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or

(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment.

9. Section 5B (1) provides that disease means:

            (a) an ailment suffered by an employee; or

           (b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

10. Significant degree means a degree that is substantially more than material.
11. Where an injury to an employee results in a permanent impairment, the respondent is liable to pay compensation to the employee in respect of that injury: s 24.
12. Permanent means likely to continue indefinitely. Impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function: s 4.
13. If an employee has a permanent impairment other than a hearing loss, the respondent is not liable to pay compensation if the degree of permanent impairment is less than 10%: s 24 (7).
14. The degree of impairment is to be assessed according to the Guide to the Assessment of the Degree of Permanent Impairment 2005: s 28 (4).
15. If compensation is payable under s 24, then the respondent is also liable to pay compensation for any non-economic loss suffered as a result of that injury or impairment: s 27 (1).

The nature of Mr Cochrane’s shoulder condition

16. Mr Cochrane is now aged 64. He has had symptoms in both shoulders over the years. As already noted, his right shoulder does not form part of this claim.
17. In August 2008, taking into account an ultrasound performed on 1 August 2008, Dr Philip Sambrook, Professor of Rheumatology, diagnosed a rotator cuff tear in Mr Cochrane’s left shoulder. He also noted features of right shoulder rotator cuff pathology. Dr Sambrook disputed earlier diagnoses by Mr Cochrane’s general practitioner, Dr Casey Cheung, and sports physician Dr Ron Muratore, of adhesive capsulitis in the left shoulder. He thought the rotator cuff tear was likely related to Mr Cochrane’s employment.
18. An MRI scan performed on 9 March 2009 by Dr Julie Soper showed both a rotator cuff tear and capsulitis of Mr Cochrane’s left shoulder and Dr Sambrook now agrees that he has both conditions.
19. Some medical reports refer to Mr Cochrane as having “adhesive capsulitis”, others simply to “capsulitis”. Dr Sambrook gave evidence that the two are different. Dr Neil McGill, consultant rheumatologist, gave evidence that there might be minor differences but the two are the same condition. Dr David Maxwell, orthopaedic and spinal surgeon, agrees with Dr McGill.
20. We prefer the evidence of Dr McGill and Dr Maxwell, both of whom are clinicians, but nothing turns on this point because it is common ground between Drs Sambrook, McGill and Maxwell that capsulitis, or frozen shoulder, is a common disorder generally associated with increasing age as well as with diabetes, from which Mr Cochrane suffers, and that his capsulitis is not related to his employment. We accept that opinion and are satisfied that Mr Cochrane’s capsulitis of the left shoulder is not related to his employment.
21. It is now common ground that Mr Cochrane has a partial thickness tear of his left rotator cuff. The tear has been shown by an MRI scan done in March 2009 to measure 7mm transversely, 10mm anteroposteriorly and to be 1mm in depth. We accept the opinions of Dr McGill and Dr Maxwell that a tear of this thickness is itself relatively minor.
22. At issue is whether Mr Cochrane’s rotator cuff tear in his left shoulder is related to his employment.

Evidence about causes of rotator cuff tears

23. There is evidence that working with the arms highly elevated is associated with rotator cuff tears: SW Svendsen et al, 2004, Work related shoulder disorder: quantitative exposure-related relation with reference to arm posture; SW Svendsen et al, 2004, Work Above Shoulder Level and Degenerative Alterations of the Rotator Cuff Tendons.
24. Although it is unclear just how high the arms must be elevated and for how long, the Svendsen studies indicate that work duties involving a substantial amount of arm elevation above 90% are associated with changes to the rotator cuff and symptoms relevant to those changes.
25. Dr McGill provided a report on 23 October 2008 explaining in detail the findings of the Svendsen studies and he elaborated in oral evidence. In particular, he gave evidence that the necessary elevation of the arm is with the elbow above 90 degrees to the shoulder and the forearm above that.
26. Dr McGill agrees with the Svendsen studies that changes occur more frequently once the percentage of hours spent with the arms elevated above 90 degrees increases to 6-9% but that where the duration is from 3-6%; there is no increased risk as between an increase of 0-3%.
27. There is also evidence that rotator cuff tears are commonly associated with degenerative changes due to age.
28. Dr McGill gave evidence that rotator cuff tears are the commonest cause of presentation with shoulder complaints. A study by Sonnabend and Watson (January 2000, Shoulder problems: A guide to common disorders) indicates that 50 per cent of people over 60 or 70 years of age suffer from rotator cuff tears. Dr Maxwell also gave evidence that 50 per cent of people in their 60s have partial thickness tears in the supraspinatous tendon which may be asymptomatic; he would not expect a tear of 1mm thickness to be associated with any symptomatology.

Contentions

29. Mr Cochrane contends that the tear in his left rotator cuff occurred while at work on 27 July 2007 and is therefore an injury simpliciter. Alternatively, he contends that repeated raising of his shoulder while sorting mail contributed significantly to his impairment.
30. The respondent does not dispute the evidence suggesting a connection between rotator cuff tears and certain work activities. However, the respondent disputes that Mr Cochrane’s shoulder condition arose out of, or in the course of, his employment or that his employment contributed to it in a significant degree. To the extent that he suffers symptoms in his left shoulder, the respondent says they are caused by the capsulitis and not by the rotator cuff tear.

Mr Cochrane’s work activities

31. Mr Cochrane’s position involves sorting mail using a “V-sorter”, a three- or four-sided frame with up to five levels of slots into which mail is sorted prior to delivery.
32. The worker stands in front of the V-sorter which is adjustable according to the height of the individual. Mail is held in one hand and the other arm is extended to slot mail into the frame. Mr Cochrane is left-handed. He holds mail in his right hand and uses his left to slot mail into the V-sorter.
33. The highest slots of the V-sorter are roughly at head height and require the worker to lift his or her arm in order to place mail in them. Workers generally work at a particular V-sorter which they adjust to suit their own height. A video produced by the respondent showed us how a V-sorter is set up.
34. Australia Post issues instructions to workers for safe operating procedures in order to avoid injury when placing mail into the V-sorter. In particular, instructions include that the top shelf must be set so that it is no higher than eye level: Extract from Safe Operating Procedure: Adjustment of V-sort shelves for short statured staff, August 2004. In this position, the hand should be extended at about eye level, the elbow remaining below shoulder height.
35. Mr Cochrane maintains that, in the period leading up to 27 July 2009, he was working long hours, including overtime, because of staff shortages. He says that most of his normal hours, and all of his overtime hours, were spent at the V-sorter; he would often have to work at other workers’ V-sorters. He says that, because he is relatively short and it is “not the done thing” to adjust another worker’s V-sorter, he spent long hours working with his arm above shoulder height. We note that, although he says he is short and so has to reach further than others to slot mail into the top of the frame, Mr Cochrane appears to be of fairly average height.
36. From 20 May 2007, Mr Cochrane worked night shift. He relies on his time sheets as evidence of the hours he was working in the period leading up to 27 July 2007. Starting and finishing times are recorded electronically by means of swipe cards. The time sheets are not easy to read because of the way in which they record actual and nominated starting times, hours worked at standard rates and hours worked at penalty rates. Variations in shift lengths affect when overtime becomes payable and complicate matters further.
37. Mr Cochrane gave evidence that he was “slotting” on most shifts during the period 20 May 2007 to 27 July 2007, on some shifts for at least three to four hours and on others for up to eight or nine hours. The time sheets tend to suggest that this is unlikely.
38. Mr Cochrane believes he actually worked longer hours than indicated by his time sheets but he concedes that his memory is “not great”.
39. We have no reason to doubt that the time sheets accurately reflect the hours Mr Cochrane worked during this period. They show that his usual shifts lasted from seven and a half, to about nine hours although there were occasions when he worked up to twelve-hour shifts. Although he recalls working long hours of overtime around that time, the records show that, in the two weeks to 27 July 2007, he worked a total of approximately four and a half hours overtime.
40. Kevin Ackroyd, Mr Cochrane’s Team Leader at the relevant time, gave evidence that he “highly doubted” that Mr Cochrane worked the hours he suggests at the V-sorter. Mr Ackroyd says Mr Cochrane would never sort more than three and a half hours per night although with overtime, it was possible, but most unlikely, that he could do up to nine hours.
41. An email from Edward Powell, a manager at Australia Post, to Mr Ackroyd suggests that Mr Cochrane might have worked longer than Mr Ackroyd thought. Mr Powell’s email states that Mr Cochrane was allotted no more than four hours on the V-sorter but “a lot of times” he would take up to six hours to complete his duties. Mr Ackroyd’s shifts started at different times and he conceded that he was not always in a position to see what Mr Cochrane was doing.
42. There is no suggestion that Mr Cochrane is not being truthful about the hours he worked but it is probable that he was not working as long hours as he now recalls and nor was he spending as long at the V-sorter.
43. It is difficult to establish precisely how many hours Mr Cochrane was spending at the V-sorter in the period leading up to 27 July 2007. On balance, it is probable that he was spending somewhere between what he estimates and what Mr Ackroyd estimates.

Is Mr Cochrane’s left rotator cuff tear related to his employment

44. Mr Cochrane contends that he suffered a spontaneous tear of the left rotator cuff while on duty on 27 July 2007 and that the injury therefore arose out of, or in the course of, his employment. Alternatively, he contends that long hours at the V-sorter contributed to his condition.
45. We are not satisfied that either contention is supported by the evidence.
46. It is asserted for Mr Cochrane that the fact that he first felt pain in his left shoulder on 27 July 2007 while working at the V-sorter means that he suffered a spontaneous tear at that moment; otherwise, he asks, why did he not first feel it at some other time, for instance while at home?
47. We agree with the respondent that this argument rests on a logical fallacy. It does not follow, merely because Mr Cochrane was working at the V-sorter when he first felt pain, that the V-sorter caused the pain. The evidence does not suggest that V-sorting of itself causes such an injury. Nor does it follow from the fact that Mr Cochrane first felt the pain on 27 July 2007 that the tear occurred at that time. The evidence is that some 50% of people of Mr Cochrane’s age have a rotator cuff tear which may or may not be symptomatic.
48. Even allowing that Mr Cochrane is correct about the hours he spent at the V-sorter, it does not follow that he spent time with his arms elevated to the degree, and for such time, as to cause the rotator cuff tear. In our view, the evidence weighs against such a finding.
49. As we have noted, adjusting the V-sorter according to instructions places the top row of the frame at eye level. Even allowing that Mr Cochrane may be shorter than some others, and allowing that he worked sometimes at others’ V-sorters, only one fifth of mail would have gone into slots that might have involved raising his elbow above shoulder height. Dr McGill estimates that his work duties prior to the onset of his shoulder symptoms would have fallen within the 0-6% category which, according to the Svendsen study, would not be associated with an increased prevalence of rotator cuff tear.
50. There is no dispute that the rotator cuff tear in Mr Cochrane’s right shoulder is substantial. Dr McGill gave evidence, which we accept, that presence of a substantial right rotator cuff tear made it more likely that he would develop “a non trauma associated” tear to the left rotator cuff; in other words, “a degenerative change to both rotator cuffs”. Dr Maxwell also considers that an articular surface tear of the kind Mr Cochrane has in his left shoulder is normally associated with degeneration.
51. Further, both Dr McGill and Dr Maxwell attribute Mr Cochrane’s symptoms to the capsulitis he had had for some two years, rather than to the rotator cuff tear. Dr McGill gave evidence that a tear of 1mm thickness is very small and would not be associated with Mr Cochrane’s symptoms. Dr Maxwell gave evidence that, although capsulitis tends to resolve itself fairly quickly, Mr Cochrane’s diabetes would slow this process, confirming in Dr Maxwell’s mind that capsulitis is causing his symptoms.
52. Dr Sambrook gave evidence that he does not know why Mr Cochrane became symptomatic on 27 July 2007. He agreed with Dr McGill that a “significant number” of people suffer from rotator cuff tears as they age. In a report dated 15 August 2008, Dr Sambrook thought there was “a likely relationship on the balance of probabilities between [Mr Cochrane’s] duties and the left shoulder pathology”.
53. It is relevant that Dr Sambrook acknowledged that he had not ascertained from Mr Cochrane how long he spent with his arms elevated and over what period of time. It is also relevant that Dr Sambrook was also firmly of the view at this time that Mr Cochrane did not have adhesive capsulitis and so, naturally, it was not a factor in his opinion.
54. On balance we prefer the evidence of Dr McGill and Dr Maxwell to that of Dr Sambrook. With respect to Dr Sambrook, he did not initially diagnose Mr Cochrane’s capsulitis and so naturally related his symptoms to the rotator cuff tear.
55. The weight of the evidence supports the conclusion that, more probably than not, Mr Cochrane’s left rotator cuff tear was associated with degenerative changes rather than with his employment
56. We are not satisfied, on the evidence before us, that Mr Cochrane’s work at the V-sorter contributed significantly to his symptoms. We are not satisfied that his shoulder condition is related to his employment. We therefore affirm the respondent’s decision to deny liability under s 14 of the SRC Act.

Is Mr Cochrane’s shoulder condition a permanent impairment and, if so, what is the degree of impairment

57. Even if Mr Cochrane’s shoulder impairment were related to his employment, we are not satisfied that it would give rise to liability under s 24 or s 27 of the SRC Act.
58. The respondent does not dispute, and we are satisfied on the medical evidence, that Mr Cochrane’s shoulder condition is a permanent impairment within the meaning of the SRC Act. In particular, Dr Sambrook thinks it unlikely there will be substantial improvement, even with surgery, which he says usually assists with pain rather than motion.
59. It was submitted for Mr Cochrane that, although he has capsulitis as well as a rotator cuff tear, the capsulitis is not causing his symptoms and the impairment is wholly attributable to the rotator cuff tear. The evidence does not support that conclusion.
60. Putting aside its cause, Dr McGill assesses Mr Cochrane as having a 10% whole person impairment in relation to left shoulder movement based on Tables 9.11.1A/B/C of the Comcare Guide. However, that is on the basis that capsulitis is causing his symptoms.
61. Dr Maxwell did not assess the degree of Mr Cochrane’s impairment but, even if he had, he too attributes the symptoms to the capsulitis, and not to the rotator cuff tear.
62. In his report dated 15 August 2008, Dr Sambrook assessed Mr Cochrane as having a whole person impairment of the left shoulder of 10% calculated on Table 9.11.1. In oral evidence, however, he said that his assessment was based on the assumption that Mr Cochrane had only the rotator cuff pathology and no capsulitis. Dr Sambrook said that, if he were asked to make the assessment now, he would probably apportion the conditions “fifty-fifty”.

Conclusion

63. Mr Cochrane suffers from a rotator cuff tear, and capsulitis, of the left shoulder. The capsulitis is not related to his employment. We find the most probable cause of the rotator cuff tear to be degenerative changes associated with his age. We find that Mr Cochrane’s symptoms are more probably caused by the capsulitis than by the rotator cuff tear.
64. We are not satisfied either that the tear occurred while Mr Cochrane was at work on 27 July 2007 or that his work activities contributed significantly to his condition.
65. Even if Mr Cochrane’s shoulder condition were related to his employment, we are not satisfied that his impairment is of such degree that the respondent is liable to compensate him.
66. The Tribunal affirms the decisions under review.
    

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Jill Toohey.

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

Diana Weston, Associate

Dates of hearing: 26 October 2009; 27 October 2009; 27 November 2009

Date of decision: 13 January 2010

Solicitor for the Applicant: Ms Rachael James, Slater & Gordon Lawyers

Counsel for the Applicant: Mr David Richards

Solicitor for the Respondent: Ms Donna Hatton, Litigation Section, Australian Postal Corporation

Counsel for the Respondent: Mr Paul Jones