AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Administrative Appeals Tribunal of Australia
You are here:  AustLII >> Databases >> Administrative Appeals Tribunal of Australia >> 2010 >> [2010] AATA 47

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Carty and Australian Postal Corporation [2010] AATA 47 (22 January 2010)

Last Updated: 22 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 47


ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2008/3892

GENERAL ADMINISTRATIVE DIVISION )

Re Michael CARTY

Applicant

And Australian Postal Corporation

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date 22 January 2010

Place Sydney

Decision The decision under review is affirmed.

..................SGD............................
Ms N Isenberg
Senior Member

CATCHWORDS

WORKERS’ COMPENSATION –employment contributed to a significant degree- rotator cuff injury- work at or above shoulder height-Australia Post-nature and condition of employment- sorting mail- Vertical Slot Sorting Frame.

RELEVANT ACT/S

Safety, Rehabilitation and Compensation Act 1988: 5A, 5B, 14

CITATIONS

Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536

OTHER AUTHORITIES

Svendson S, Gelineck J, Mathiassen S, Bonde J, Frich L, Stengaard-Pederson K, Egund N, ‘Work Above Shoulder Level and Degenerative Alterations of the Rotator Cuff Tendons: A Magnetic Resonance Imaging Study’ Vol 50, No 10, October 2004, Arthritis and Rheumatism pp 3314-3322.

...

REASONS FOR DECISION

22 January 2010
Ms N Isenberg, Senior Member


  1. Mr Michael Carty has been an employee of the Respondent, the Australian Postal Corporation, for 41 years. He has complained of right shoulder condition related to a work place incident on or around 2 November 2007.
  2. He had previously undergone a repair of the right rotator cuff in 1999.

HISTORY OF THE APPLICATION

  1. On 13 December 2007 a determination was made by a delegate of the Respondent, whereby Mr. Carty‘s claim for compensation in respect of right shoulder injury was disallowed. By letter dated 6 May 2008 Mr Carty sought a review of this decision. On 14 May 2008 the Reconsideration Officer affirmed the determination of the delegate. Mr Carty has sought a review of this decision by this Tribunal.

ISSUES FOR DETERMINATION

  1. The issues for determination are:

LEGISLATIVE FRAMEWORK

  1. The relevant legislation in this matter is the Safety, Rehabilitation and Compensation Act 1988 (the Act).
  2. Section 5A of the Act states:
5A Definition of injury
(1) In this Act:
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;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

  1. Section 5B of the Act states:
5B Definition of disease
(1) In this Act:
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.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.

  1. Section 14 of the Act states:
14 Compensation for injuries
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
(2) Compensation is not payable in respect of an injury that is intentionally self-inflicted.
(3) Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.

APPLICANT’S EVIDENCE

  1. Mr Carty gave evidence that he had worked at Australia Post for 41 years, as a postman. He said he worked from 6am until he finished, which was 2pm or 3pm or sometimes as late as 4.30pm, with overtime. From 6am to 9.30am he would sort mail, with a 10 minute stretch break at 7.00am. There would be another break from 9.30am to 10am, after which he would start his delivery rounds.
  2. Since the introduction of the ’Vertical Slot Sorting Frame’ (VSORT) apparatus in 2002 or 2003 he would sort, he estimated, 1490 letters of which 420 – some 18 per cent - were put into the top shelf which was at about eye level. Of the mail some 100-120 items would have been sorted and placed in the VSORT by the night sorters. Therefore of the 420 in the top shelf, some 33 per cent would have been placed there by others. He did not have a VSORT bay for his exclusive use. He said that, although the VSORT was adjustable, it required two people to do so. He did not always adjust it and he said ‘a supervisor’ and ‘others’ had told him it was a waste of time. He further explained that his supervisor, Mr Rowe, did not say that though, and was in favour of adjusting. Sometimes assistance was not available, and ‘others’ told him to use it ‘as is’.
  3. Mr Carty said he had undergone an operation for his right shoulder on 15 April 1999 by Dr Walsh, and that approximately three months after surgery the pain went away.
  4. In about mid October 2007, while working at the VSORT he experienced pain again when ‘[his] shoulder went up’. He started rubbing ‘footballer’s ointment’, as he called Voltaren, into it, which he continued for 2-3 weeks. He thought it was ‘in the bone’ or arthritis.
  5. His shoulder was operated on again by Dr Walsh on 1 April 2009. The pain subsided after a few months but his range of movement is limited in so much that he was unable to reach any further than shoulder height. Mr Carty indicated that he informed Dr Walsh of this. He said he has been unable to return to work since 21 November 2007 because he cannot use his right arm to reach the top shelf of the VSORT, and there are no light duties available.
  6. In cross-examination Mr Carty demonstrated that the maximum height he could lift his arm was, what was described by counsel, as ‘[a man’s] nipple height’.
  7. Mr Carty was asked about his claim form wherein he had attributed his shoulder pain to over-reaching when delivering letters. He said he had forgotten about the VSORT whilst filling out this form. There was also pain when holding on to the throttle of the motorcycle with his right hand while delivering mail. He vaguely recalled mentioning this to Dr Walsh, but could not remember when. Mr Carty said he had to complete his claim form quickly at the end of a shift, and it only occurred to him that the pain may be attributed to the VSORT about a week after he put in the claim. He said he thought he told Dr McGill about the VSORT. During proceedings, the Respondent referred Mr Carty to his letter of 1 December 2007, at page 10 of the documents provided to the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents), wherein he wrote that he had used Voltaren two or three times weekly since June 2007. He agreed that must be correct, that is, that his painful shoulder preceded October or November 2007. He thought that in June 2007, due to the cold weather, the pain was ‘just a bit of wind getting into the shoulder’. He agreed he had not mentioned his shoulder to his doctor again until November 2007, noting that it had become more severe in October 2007.
  8. He thought he told his supervisor about his shoulder in November 2007 when a performance review of his work duties was being undertaken by Australia Post, and his sorting was slow.
  9. Mr Carty thought he had never previously completed an incident report, although it was pointed out to him that seven had been located and he did not disagree. He also said he had not previously completed a compensation form, although his leave records indicated that he had had a week compensation leave in 1995 for a lacerated shin.
  10. Mr Carty agreed he had told Dr Ridhalgh in December 2008 about having to move 35kg mailbags, however, he also agreed that, for some time, mail has come in tubs rather than mail bags.
  11. In his evidence Mr Carty said that he owned a farm, but that his wife owned and tended to the cows raised on the property. He said that the last time he had visited the farm was three weeks ago and that he had sat in the car.
  12. A DVD was shown to the Applicant at the hearing. Despite his initial position that it may have been his brother on the film, he conceded that the DVD showed him on 14 November 2009, that is, three days before the hearing, at a farm. He was observed shooing cows, wrenching a hose, swinging his hat onto his head, and lifting a tub over the side of a truck – all apparently above shoulder level. He also rested his arms at shoulder level on a fence for some time.

MEDICAL EVIDENCE

Dr Jawahar Thomas, General Practitioner

  1. On 14 May 2007 Dr Thomas recorded that Mr Carty reported pain in the right shoulder. Dr Thomas stated that it appeared 'to be a strain of the rotator cuff, slight pain on external rotation.'
  2. On 15 November 2007 it was recorded that Mr Carty attended an appointment with Dr Thomas in relation to a tear of the rotator cuff. Dr Thomas requested an X-ray and ultrasound of the right shoulder which revealed 'full thickness complete tear of the supraspinatus tendon with the torn ends retracted. There is atrophy of the right supraspinatus muscle', 'fluid and debris in the subacromial-subdeltoid bursa which is occupying the supraspinatus tendon tear defect', 'mild AC joint degeneration', and 'no impingement on humeral abduction'.
  3. Mr Carty was referred back to Dr Walsh who had performed the earlier surgery on his rotator cuff.

Dr Mark Ridhalgh, Orthopaedic Surgeon

  1. In a report dated 18 December 2008, Dr Ridhalgh stated that due to the conditions of Mr Carty’s employment over the last eight years, he had a re-rupture of rotator cuff tear and progression of the disease. Dr Ridhalgh noted that Mr Carty 'now has the early stages of rotator cuff arthropathy of the right shoulder.' He was of the opinion that 'the injury and the aggravation both arose in the course of Mr Carty’s employment with Australia Post’. Dr Ridhalgh noted that Mr Carty is currently unfit to work as a postman or mail sorter, but considered he could possibly perform duties working below shoulder level, although this would cause the shoulder to ache after one to two hours. As a result, Dr Ridhalgh felt that the prognosis for Mr Carty is poor as he is ‘unlikely to return to work for Australia Post or indeed any other employer’.
  2. In his evidence Dr Ridhalgh said he had come to this view on the basis that Mr Carty was spending at least two hours a day sorting mail and Mr Carty had told him that during this time he predominately worked at or above shoulder height. Dr Ridhalgh also said that Mr Carty had informed him that his duties involved dragging mailbags weighing an average of 35kgs. This contributed to his condition, and would have aggravated the pain, even though that task was not at or above shoulder level. He understood that this too, formed a significant part of Mr Carty’s duties at Australia Post.

Dr Michael Walsh, Orthopaedic Surgeon

  1. On 17 December 2007, Dr Walsh reported to Dr Hossain that Mr Carty stated that he had 'become increasingly aware of weakness in the shoulder and he has more recently noticed pain... when extending to reach for things in front of him'. Dr Walsh noted that there was no specific incident. He was of the opinion that the shoulder dysfunction was almost certainly due to the tear in the supraspinatus which could be remedied by a rotator cuff repair.
  2. On 6 February 2008, Dr Walsh reported to Dr Hossain that the MRI confirmed that Mr Carty ‘has a very extensive tear of the rotator cuff with considerable retraction’. Dr Walsh noted that it may have ‘been like this for a long time because he does have some secondary degenerate changes on the articular surface of the humeral head where it is engaging in the subacromial space’.
  3. On 27 February 2008, Dr Walsh provided a report to the Respondent. It was noted that Mr Carty presented with a gradual onset of increasing pain in his right shoulder. Dr Walsh was of the opinion that Mr Carty could not work in the postal area as a result of the pain in his shoulder. He stated that Mr Carty ‘has a complete and possible degenerative tear of the rotator cuff in his right shoulder and he requires a rotator cuff repair’. Dr Walsh noted that whilst Mr Carty was on the public hospital waiting list to undergo the repair, it would be unlikely he would benefit from conservative treatments and would ‘be able to be deployed on light duties as long as his duties could be performed with his elbow by his side’.
  4. On 27 November 2008, Dr Walsh reported that Mr Carty ‘had undergone a decompression and repair of a full thickness tear of the rotator cuff’, which was performed in 1999. He stated that Mr Carty made a ‘full recovery with good recovery of mobility and power and he had been largely asymptomatic over the subsequent seven to eight years’. Dr Walsh reported that ‘there was minor pain with abduction and external rotation and the main problem was loss of power and he was able to only just abduct his shoulder against gravity and could not do so against any resistance’.
  5. Dr Walsh was of the opinion that there was an inevitable degenerative component to a tear in the rotator cuff. However, ‘given that [the Applicant] already had some slight weakness in this tendon, his occupation, which is by nature very physical... would have contributed to the further impingement of this tendon and ultimately accelerated the process of degeneration in an already damaged tendon’. Dr Walsh attributed ‘most of the injurious loads to his occupation with Australia Post’ as Mr Carty had ‘not had any other injury or trauma to the shoulder’.
  6. In his oral evidence before the Tribunal, Dr Walsh observed that although the tear in 1999 had completely repaired, scar tissue had remained and it was therefore possible that it was vulnerable to further tearing. He said he had taken a history from Mr Carty of repetitious arm movements at or above shoulder height. He also took a history of lifting heavy mail bags, although he considered this to be less relevant to Mr Carty’s shoulder condition, compared to the repetition at or above shoulder height. He had observed that Mr Carty had lost muscle bulk in his arm which was indicative of the arm not being moved because of long-standing and serious change to the shoulder. He said he agreed with the view expressed by Dr McGill that if Mr Carty was undertaking 5% or more of his daily work activities with his arm at or above shoulder height, that would have contributed to his rotator cuff tear, although he thought a reasonable part of the daily activity needed to be at or above shoulder height. Dr Walsh stated that by sorting mail into vertical slots where the top shelf is at eye level, a person would most likely be using their arm – by which he meant their elbow - at or above shoulder height.
  7. In cross-examination he said he had understood from the history he took from Mr Carty that he was lifting mail bags up into the air so his elbow reached shoulder height.

Dr Neil McGill, Consultant Rheumatologist

  1. In a report dated 12 January 2009, Dr McGill stated that Mr Carty redeveloped shoulder symptoms in late 2007 in the absence of any incident. Dr McGill diagnosed Mr Carty with a 'chronic full thickness tear of the right rotator cuff with mild to moderate osteoarthritis of the glenohumeral joint (i.e. rotator cuff arthropathy)'. He stated that 'repetitive work involving elevation of the arm to or above shoulder height has been shown to be associated with rotator cuff degeneration'. Dr McGill also acknowledged that the VSORT apparatus was introduced to Mr Carty’s workplace in 2002 or 2003, and that ‘when sorting into the upper slots [the Applicant's] arm elevation was to shoulder height approximately'.
  2. Dr McGill was of the opinion 'that constitutional degenerative change has been the primary cause' of Mr Carty’s shoulder injury. However, he opined that 'there is a sufficient likelihood that his work duties, specifically using the VSORT apparatus, has provided a meaningful contribution that his shoulder problem should be considered work related'. Dr McGill stated that Mr Carty was fit for full hours on restricted duties namely, motorcycle delivery or walking delivery using a buggy, with a lifting limit of 8kg and no elevation of the arm above 60 degrees.
  3. Dr McGill reported that he found Mr Carty to be a straightforward historian who cooperated fully with the examination. He had the impression that Mr Carty had a tendency to underplay the symptoms he was experiencing and could well have had some predating right shoulder impairment when he later became aware of problems in November 2007. Dr McGill further indicated that it was evident Mr Carty had substantial current difficulties with his right shoulder although there was an absence of reported symptoms currently during the day.
  4. Dr McGill was provided with a letter from Australia Post stating that Mr Carty would use the VSORT for approximately 2½ -3 hours per day and that it could be adjusted to suit his stature. As a result, on 13 March 2009, Dr McGill reported that 'there is very little, if any, repetitive at or above shoulder activity.'
  5. Dr McGill was of the opinion that 'the frequency and extent of repetitive elevation of the arm' would determine whether Mr Carty’s shoulder problems have been contributed to by his work. Dr McGill referred to the study by Svendsen et al which 'found a relationship between lifetime upper arm elevation and supraspinatus tendinopathy.' He was of the opinion that if the elevation of Mr Carty’s arm above 90 degrees 'was an infrequent requirement of his day's work then... It is probable that the changes in his rotator cuff were all constitutional. However, Dr McGill further explained that ’If he repetitively elevated his arm above 90 degrees such that he spent 5% or more of his working day with his arm above 90 degrees of elevation, then, I would conclude that, although he had problems in the rotator cuff region for which he has received acromioplasty in 1999, at that time he was not doing work activities at or above the shoulder height and thus has had constitutional changes in that region, his sorting duties subsequent to 2002/2003 probably aggravated the changes in his rotator cuff and thus contributed to his current situation'.

CONSIDERATION

  1. For a condition to be compensable it must be ‘contributed to in a significant degree by the employee’s employment’ in accordance with the Act. A ‘significant’ degree means a degree that is substantially more than material. The term ‘in a material degree’ was discussed by Finn J in Comcare v Sahu-Kahn [2007] FCA 15; (2007) 156 FCR 536 where it was concluded that it ‘imposes an “evaluative threshold” below which a causal connection may be disregarded’, and ‘requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment’.
  2. For an employee to succeed in a claim such as this, it is not necessary to establish that the employment is the central, main or primary factor in the onset or aggravation of the ailment in question, only that the employment contributes to the ailment in a significant degree. That is a matter of fact and degree to be determined on evaluation of all of the contributing or causal factors.
  3. A serious difficulty in determining if Mr Carty’s work had contributed to a significant degree arose after viewing the surveillance evidence. Mr Carty clearly had not been frank with the Tribunal: he had given evidence that he had not been on his farm and worked with the cows at all, and the last time he had been near the farm was three weeks prior, when he had remained in the car while his wife checked on the cows. The surveillance material, which he initially denied, showed that only three days prior to the hearing, he was working on the farm. Moreover he was shown to be undertaking activities which included vigorous arm movements at and above shoulder level – which he had resolutely claimed to be incapable of doing in the work context, or at all. His counsel submitted that the medical evidence was so clear that the Applicant’s credit should not be an issue.
  4. It was against that background that I considered the balance of his evidence.
  5. The range of movement that Mr Carty demonstrated at the hearing was to lift his arm to the height of ‘a man’s nipple’, that is, about half-way between the level of his waist and his shoulder. Dr Walsh, his treating orthopaedic surgeon, assessed Mr Carty’s post-operative movement of 80 degrees in that plane and described his patient’s arm as being “just short of parallel to the floor”, which was significantly less than Mr Carty demonstrated at the hearing. There was a further even more marked discrepancy between the range that he demonstrated and the arm movements clearly seen on the DVD. It appears he has been less than candid about the range of movement with his own specialist doctor.
  6. Of lesser significance, but still noteworthy as to his credibility, is the change in Mr Carty’s evidence about when he first noticed the pain and to what he attributed that pain. Initially he had said that the problem with his shoulder arose as a result of delivering mail to street letterboxes. Subsequently, and at the hearing, he claimed it to be associated with his use of the VSORT. In evidence-in-chief he said he noticed the onset of pain in his right shoulder in October 2007, while sorting into a VSORT. In a note supplementing his compensation claim dated 1 December 2007 he had written that the date of onset of pain was June 2007 and he revised his evidence, saying that there was a worsening of the pain in October 2007. However, an extract from his General Practitioner’s clinical notes records nothing about shoulder pain between 14 May 2007 and the visit on 15 November 2007. The note could be consistent with some discreet incident on 14 May; however, there was no notation of the complaint being associated with his work at all. Mr Carty was familiar with the process of filling out incident reports if he had an incident at work, but did not do so in relation to his shoulder at that time. I accept that Mr Carty used remedial gel in the months between May and November 2007. Mr Carty was observed working at a slower pace, which he attributed to his shoulder pain. He said his supervisor, Daniel Ward, advised him to see his General Practitioner, but according to a letter written by Mr Carty dated 6 May 2008, that did not occur until 2 November 2007.
  7. Mr Carty’s oral evidence as to how he came to fill out an incident report and a compensation form dated 30 November 2007, in which he attributed the shoulder pain to reaching to deliver mail to street letterboxes, was also difficult to follow. He said he filled out the forms in a hurry because his supervisor was rushing him. His only reference to the VSORT in the claim form was that sorting there was part of the duties he performed. His account was inconsistent with his evidence that he first noticed the pain in October 2007 while using a VSORT. There was some evidence that he had told a manager about pain on 2 November 2007, some 28 days before the claim form, which he now says is erroneous.
  8. Mr Carty gave evidence that he spent a total of 3 hours and 20 minutes sorting mail at the VSORT everyday. After the work of the night sorters, there remained a maximum of 1370 items to be sorted, of which 383 go to the top shelf. By simple mathematics, for the duration of his sorting time, approximately 56 minutes would be occupied sorting top shelf items only. Further, on average, out of the total 1370 items, less than 2 items per minute were placed on the top shelf. Again, using simple mathematics, he would require about 9 seconds to sort each item. However, it was observed from a DVD shown during proceedings that the sorting process involved looking at the letter, reading the address, physically moving to the appropriate group of shelves, stepping towards it, looking at the shelf to identify the correct slot, and only then moving the right arm to put the item into the correct slot. I have no hesitation in finding that the time the arm is actually used to place items on the top shelf is significantly less than the entire 9 seconds calculated to sort each item.
    1. The DVD showed a person sometimes reaching his elbow up to shoulder height while reaching the top shelf. It seemed to me that this was largely dependant on how far he was from the VSORT, that is, whether he walked closer to the frame as necessary. It did not appear to me that every placement on the top shelf required the person to raise his elbow to shoulder height; in fact, it seemed that placement at or above shoulder level occurred much less frequently.
    2. Dr Walsh and Dr Ridhalgh gave witness evidence on the basis that Mr Carty was spending an hour per day working above shoulder height. On the basis of the above calculations, my examination in relation to the multistep process involved in the task of sorting, and my observations in relation to the DVD, I believe their evidence must be viewed cautiously.
    3. The matter of the elbow reaching shoulder height was of significance in the evidence of Dr Walsh in particular. Dr Walsh and Dr Ridhalgh’s emphasis was not on work at or above shoulder height but, rather, on the elbow reaching shoulder height. It is crucial not just that one be working on a shelf at a certain level but, rather, that the elbow is elevated. Dr Walsh considered that if a reasonable part of the day required the elbow at shoulder height then the Applicant would be experiencing a degenerative force on his rotator cuff. I do not consider the work undertaken by Mr Carty with his elbow actually at shoulder height to have been performed for a reasonable part of the day.
    4. I also observe that both Dr Walsh and Dr Ridhalgh had given evidence on the basis of the history given by Mr Carty that he had also spent a portion of the day dragging heavy mail bags, whereas this was clearly not the case.
    5. Based on the raw data referred to in paragraph 45 above, Dr McGill concluded that there would not be a significant contribution towards the rotator cuff damage. In taking into account that there had been a prior injury to that rotator cuff, his final position during proceedings was that a ‘somewhat lesser extent’ than five per cent of the working day doing repetitive activities at or above shoulder height may have been sufficient to influence his rotator cuff injury. From my findings in paragraphs 45 and 46 above, I cannot be satisfied as to that level of activity at or above shoulder height in the Applicant’s duties.
    6. There was a belated effort on behalf of the Applicant to attribute some of his shoulder problem to having earlier worked on a different apparatus- a vertical sorting division. Mr Carty gave evidence that he had never, in his 41 years, submitted a claim for compensation. Due to the fact that the Applicant claimed a complete recovery from his earlier shoulder problem, the vertical sorting division was not relevant to the matter at hand and the Tribunal ruled accordingly.

CONCLUSION

  1. I am reasonably satisfied that Mr Carty’s employment did not contribute in a significant degree to cause or aggravate his shoulder condition.

DECISION

  1. The decision under review is affirmed.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member


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

Ms B Dhanasar, Associate


Dates of Hearing: 17 and 18 November 2009

Date of Decision: 22 January 2010

Applicant representative: Slater and Gordon

Applicant counsel: Mr D Richards

Respondent representative: Australian Postal Corporation (Self)

Respondent counsel: Miss R Henderson

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2010/47.html