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Douglas and Australian Postal Corporation [2010] AATA 479 (25 June 2010)

Last Updated: 29 June 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 479

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/0934

GENERAL ADMINISTRATIVE DIVISION
) 2008/0935
2008/1678
2008/3803

Re
STEVEN DOUGLAS

Applicant
And
AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal
M J Carstairs, Senior Member and Dr J B Morley, Member

Date 25 June 2010

Place Brisbane

Decision
The Tribunal affirms the decisions under review.


....................[Sgd]..........................

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Entitlement to continued compensation – Degenerative shoulder condition – Liability accepted for aggravation of underlying shoulder condition – Aggravation no longer the effective reason for symptoms – Capable of full-time work on restricted duties – Compensation payments ceased – No entitlement to partial incapacity payments – Reviewable decisions affirmed.

WORKERS’ COMPENSATION – Entitlement to compensation – Aggravation of degenerative shoulder condition – Not aggravation that arose out of, or in the course of, employment – Not contributed to, to a significant degree, by employment – Symptoms caused by natural progression of underlying age-related degenerative condition – Reviewable decision affirmed.


Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 5A, 5B, 14

Australian Postal Corporation v Bessey [2001] FCA 266; (2001) 32 AAR 508

REASONS FOR DECISION


25 June 2010
M J Carstairs, Senior Member and Dr J B Morley, Member

  1. Steven Douglas has applied to the Tribunal for review of four decisions concerning his compensation for a shoulder injury described by Australia Post as an “exacerbation musculo-ligamentous soft tissue injury to cervical-thoracic-lumbar area and left shoulder”.[1] Mr Douglas sustained one such injury while working as a postal officer at the Underwood Mail Centre in September 2007 (“the 2007 injury”). He also made another claim with respect to his left shoulder in February the following year (“the 2008 incident”).
  2. Mr Douglas has worked at Australia Post for almost 20 years. It can fairly be said, and indeed it is not disputed by the respondent, that Mr Douglas has a problem shoulder.
  3. The question pivotal to all the matters now in dispute is the extent to which Mr Douglas’s shoulder problem is due to his work as a mail officer at Australia Post. The background facts to the four reviewable decisions are quite confined as the relevant events take place within a short timeframe (effectively from September 2007 to mid-2008).
  4. During the incident which resulted in the 2007 injury, Mr Douglas experienced pain from his neck down his left side and into his lower back and buttock[2] after putting a parcel into a Unit Lifting Device. In the past, the respondent had paid Mr Douglas compensation for injuries to his neck, upper back and left shoulder.
  5. Soon after the 2007 injury, the respondent accepted liability for it[3] and paid compensation accordingly. In the ensuing months, Mr Douglas’s treating doctors provided opinions indicating that his shoulder was steadily improving and that he was able to undertake progressively extended hours of work. A number of “return-to-work plans” were provided to us. The return to work was supervised by Ms Heydi van Mourik, rehabilitation consultant, in accordance with the recommendations of Mr Douglas’s treating doctors. Mr Douglas seemed to be managing quite well, until about the end of November 2007. It was at this time that the events underpinning the first reviewable decision occurred.
  6. Mr Douglas believed that the demands of his return-to-work programme were aggravating his shoulder. Ms van Mourik took the view that the programme was in accordance with medical indications of his current capabilities.
  7. It is worthwhile here to summarise the four reviewable decisions under consideration, particularly as these are interrelated in important ways:

This matter concerned a determination made pursuant to s 37 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) that Mr Douglas, in the period from 25 November to 7 December 2007, was capable of undertaking a return-to-work programme on full-time hours (his normal 45.53 hours), but restricted duties. This decision appears to have rested on a conclusion that the 2007 injury had got better to the extent that Mr Douglas was capable of carrying out the identified (restricted) work for the hours specified.

The substance of this determination was that Mr Douglas was not entitled to partial incapacity payment including lost overtime, as represented by the difference between 36 and 45.53 hours of work in the period 25 November to 29 December 2007.

This determination affirmed the respondent’s decision that, with effect from the end of February 2008, the respondent had no ongoing liability to pay compensation for the 2007 injury.

This matter concerned a new claim by Mr Douglas on 27 February 2008 that he had sustained further injury to his left shoulder when working on the parcel machine at Underwood Mail Centre. (The respondent denied liability on the grounds that any shoulder problem was not related to his employment.)

THE ISSUE

  1. Having set out the detail of the four decisions it is apparent that the substance of the underlying dispute between the parties is whether, and/or to what extent, Mr Douglas’s shoulder problems can be attributed to his employment. As we see it, this issue is best determined by taking into account the medical evidence, to which we now turn.

MEDICAL EVIDENCE

  1. We see some value in approaching the medical reports chronologically. Some signs and symptoms will be evident close to the time of any injury and thus help to understand the processes which might be at play. But there is also benefit to be had from the later-formed opinions of specialists who, aided by hindsight, can be in a better position to comment on the course of particular signs and symptoms. This can allow inferences to be drawn that might not have been immediately apparent to treating practitioners at an earlier time. We were very much assisted by having reports of both kinds available to us—those of treating doctors close to the time of the 2007 injury and the later specialists’ reports.
  2. In our view, the reports of doctors who were treating Mr Douglas at or soon after he sustained the 2007 injury provide a starting point for an examination of the medical evidence as a whole. In that regard, we gained assistance from the reports of general practitioners Dr Satish Prasad and Dr MJE Patel, neurologist Dr Alison Reid and Dr Philip Watson, who practices in a group of general practitioners with a special interest in musculoskeletal injuries.
  3. Dr Prasad saw Mr Douglas on 4 October 2007.  He completed a medical certificate on that day, diagnosed a “left upper back and shoulder strain” and recommended that Mr Douglas do light work only for two weeks. Once that time had almost passed, he extended that recommendation for another two weeks. On 31 October and 15 November 2007, Dr Patel echoed that diagnosis and also recommended restricted duties.
  4. We should mention here, too, that there was some contention about the discrepancy between the findings reported on two ultrasounds of Mr Douglas’s left shoulder, one taken close to the time of the 2007 injury and the other some five months later, in March 2008. The first reported ultrasound referred to the appearance of a focal defect within the supraspinatus tendon “consistent with a partial thickness articular surface tear” measuring some 1.2 x 1 cm.[4] (There were no other observable abnormalities reported.) The second report[5] found a bursal surface tear, rather than an articular surface tear, in the supraspinatus tendon measuring 8.5 x 3.3 x 6.3 mm. The medical evidence was that these two different locations are incompatible with being the same lesion.
  5. The various specialists who later were asked to comment upon these findings agreed that ultrasounds can be unreliable, and that much depended on the skill of the operator. Greater confidence was expressed in the reliability of magnetic resonance imaging (MRIs). In that regard, orthopaedic surgeon Dr John Scott referred Mr Douglas for an MRI arthrogram of the left shoulder in August 2008. That revealed some tendinopathy, some pitting at the insertion of the tendon onto the greater tuberosity, but no full thickness tear of the rotator cuff.

DR PHILIP WATSON

  1. Turning to the reports chronologically, we start with the report of Dr Watson. Mr Douglas visited Dr Watson in early December 2007 at the request of his general practitioner, Dr Patel. Dr Watson obtained a history from Mr Douglas, which included past problems with his left shoulder and details of the 2007 injury. Mr Douglas told Dr Watson that he was having difficulties at that time carrying out his return-to-work hours (six hours per day on light duties). Dr Watson administered an injection of local anaesthetic and cortisone to Mr Douglas’s painful left shoulder region with apparently good effect. A week later his symptoms had reduced.
  2. Dr Watson at first indicated that Mr Douglas ought not return to full-time work as a mail officer. However when the shoulder responded well to treatment, he said that a graduated return to work, with review by Dr Patel on 12 December 2007, was the right course to follow. Dr Watson confirmed in oral evidence that he believed Mr Douglas was capable of working 45 hours 53 minutes per week at this time, as long as the work was restricted to light work.[6]
  3. Dr Watson next reported on 6 February 2008 that Mr Douglas had reached maximum medical improvement and would be able to return to full-time work as a mail officer.

DR ALISON REID

  1. Dr Reid, who has practised as a neurologist since 1972, was also extensively involved in the management of Mr Douglas’s 2007 injury. We had the advantage of four of her reports, which we note were completed within four months of the injury.
  2. In her report dated 9 November 2007,[7] Dr Reid referred to Mr Douglas having aggravated what she described as his “left shoulder rotator cuff degenerative disease”. She accepted there was evidence of a partial thickness articular surface tear (as per the first ultrasound). Dr Reid made the observation that this was an extremely common degenerative condition in over 40-year-olds, although it is often asymptomatic. In her oral evidence, Dr Reid noted that the calcification reported upon in his ultrasounds supported her opinion that Mr Douglas’s shoulder condition was degenerative.
  3. Dr Reid at the time considered that Mr Douglas was being appropriately managed at work as he was on light duties, avoiding heavy lifting, and in her opinion his condition would settle within a few weeks. She explained it as a temporary aggravation only. In a later report she confirmed that Mr Douglas was capable of working normal hours.[8] Dr Reid made plain that Mr Douglas’s condition, being age-related and degenerative, was one that was likely to settle down and be symptomless, but the condition itself would not go away.
  4. Dr Reid noted Mr Douglas had a significantly restricted range of left shoulder movement, particularly in extension and rotation, which she attributed to degenerative rotator cuff disease. She said he needed to keep moving the shoulder rather than immobilising it or resting it too much. In her opinion, by mid-December 2007 any contribution from employment—that is, by way of aggravation—would have ceased and settled.
  5. However, as events transpired, Mr Douglas had three weeks off in January 2008, resting, and found that when he returned to work his shoulder was hurting him. In her last report on Mr Douglas of 24 January 2008,[9] Dr Reid stated there was a high probability that he would be unable to continue working as a mail officer. Like several other doctors who were asked to comment on the case, Dr Reid considered that Mr Douglas’s underlying degenerative condition made him unsuitable to fulfil the duties of a mail officer, especially if he failed to modify the manner in which he worked.
  6. Somewhat presciently, as it turned out, Dr Reid also noted in her reports that Mr Douglas’s diabetes would predispose him to developing a frozen shoulder. When Mr Douglas questioned Dr Reid about this, she acknowledged that Dr Peter Steadman, orthopaedic surgeon, had diagnosed Mr Douglas with a frozen shoulder in 2009. However, Dr Reid remained adamant that Mr Douglas did not have a frozen shoulder when, some 13 months prior to Dr Steadman’s report, she had last seen him.

DR GREGORY NUTTING

  1. The respondent sought a report from Dr Nutting, orthopaedic surgeon, in April 2008. The commissioning letter referred to the recent claims history, including Australia Post’s acceptance of liability for the 2007 injury and the termination of compensation payments from the end of February 2008. It also referred to Mr Douglas’s new claim for the 2008 incident.
  2. Mr Douglas told Dr Nutting about his prior history of shoulder and related injuries, and identified his shoulder problems as stemming from an incident in 1998 when he had lifted an object (weighing some 24 kg) over the Unit Lifting Device.
  3. On clinical examination, Dr Nutting found Mr Douglas to have no neurological deficit in his upper limbs, and no muscle wasting. There was some “ill-defined left-sided neck pain” which was not consistently replicated with movement of his cervical spine. But Dr Nutting found that Mr Douglas had restricted gleno-humeral joint movements, and what Dr Nutting described as “abysmal” scapular mechanics. He observed that his left scapular sits in a rotated and protracted position at all times, interfering with his scapulo-thoracic movements.
  4. For the purposes of completing this report, the respondent had provided Dr Nutting with various other reports, including those of Drs Reid, Watson and Prasad, and the two ultrasounds. Dr Nutting clearly was sceptical about the value and reliability of ultrasounds. He observed that the first ultrasound reported a tear in the articular surface of the supraspinatus, and it was “patently not possible” that there was no mention of articular surface pathology in the second ultrasound. In the second, the tear was smaller and on the bursal surface.
  5. Like Dr Reid, Dr Nutting concluded that Mr Douglas suffered with a pre-existing condition (which he described as a “loss of coordination of the scapulo-thoracic and gleno-humeral movements”,[10] and elsewhere as “scapular dyskinesia”). This meant, he said, that Mr Douglas’s shoulder girdle mechanics were out of kilter. That being so, any normal day-to-day activities (work-related and otherwise) would be likely to aggravate this underlying problem, because Mr Douglas’s muscles were not coordinated to elevate the shoulder appropriately. If Mr Douglas was doing nothing he would have no symptoms, but resuming normal activities would bring symptoms on again. As to the cause of this, Dr Nutting said degenerative change was making a contribution. Dr Nutting considered, however, that the particular incidents at work, and work as a mail officer generally, were not particularly significant. However Dr Nutting commented that the way in which Mr Douglas sorts mail at work did not help.

DR JOHN SCOTT

  1. Dr Scott, orthopaedic surgeon, provided a report[11] after seeing Mr Douglas on two occasions, in July and August 2008. Dr Scott described Mr Douglas’s shoulder X-rays as “unremarkable” and noted the two different findings in the ultrasounds as to the site of the supraspinatus tendon tear. Dr Scott told us that his clinical experience confirmed to him that ultrasounds were not as reliable as MRIs. From the MRI that Dr Scott had ordered, he was able to say that there was “no full thickness tear, but tendinopathy of the supraspinatus tendon”. While not being able to categorically exclude the possibility of a partial thickness supraspinatus tear, he put its likelihood as no more than 10%.
  2. Dr Scott made the observation, in addition, that the MRI results showed what could have been “anybody’s shoulder”. We understood Dr Scott to be saying that the results were unremarkable for a person of Mr Douglas’s age.
  3. Dr Scott diagnosed Mr Douglas as having “left shoulder subacromial impingement” with supraspinatus tendinosis (that is, an injury to the tendon). Dr Scott referred to this as a clinical finding that would not be revealed in imaging. He said that as a consequence of this “troublesome shoulder”, Mr Douglas would be unable to use his left shoulder for manual work at or above shoulder height, but he would be able to carry out light manual labour at (and presumably below) waist level. To that extent we perceive substantial agreement with Dr Gregory Nutting’s opinion to the same effect.
  4. In summary, Dr Scott’s conclusions in his written report were that:
  5. In his oral evidence, Dr Scott confirmed that Mr Douglas did not have a frozen shoulder, contrary to the later findings of both Dr Steadman and Dr Glenn Davies.
  6. Dr Scott stated in his report that work had aggravated Mr Douglas’s underlying condition.[12] But he concluded that the “effects of this work contribution should be temporary” if Mr Douglas had appropriate treatment. However, his oral evidence reflected a more subtly nuanced answer to the question of work contribution. Dr Scott made plain that he could not answer that question with any degree of confidence.
  7. In that regard, Dr Scott explained that he was not the treating doctor and that he only saw Mr Douglas for the first time the year after the 2007 injury. Dr Scott was not provided with all the relevant medical reports and, he said, simply assessed Mr Douglas as he found him at that time, taking into account the MRI.
  8. Indeed, on refreshing his memory with respect to the MRI, Dr Scott went on to observe that the MRI showed the presence of bone cysts; this, he said, provided a pointer to chronic rotator cuff pathology developed over a number of years due to natural wear and tear. Dr Scott ultimately agreed under cross-examination that on the evidence before him he could not conclude one way or the other whether work was implicated.

ASSOCIATE PROFESSOR PETER STEADMAN

  1. Associate-Professor Steadman, orthopaedic surgeon, examined Mr Douglas in January 2009 and conducted a comprehensive file review. He had access, in addition to all the medical reports, to:
  2. Mr Douglas told Dr Steadman that he believed the duties that general practitioners had certified him as fit to undertake in November/December 2007 had aggravated his shoulder. He also told Dr Steadman about the 2008 incident.
  3. Mr Douglas commented to Dr Steadman that his shoulder movement had improved. Dr Steadman observed that this gradual improvement, taken with the clinically observed loss of external rotation, confirmed that he had suffered a frozen shoulder. Dr Steadman said this was an “idiosyncratic condition”, likely to last some 6 to 18 months, and one to which diabetics like Mr Douglas are particularly prone. A person recovers with time, and Dr Steadman said that there was no need for treatment when he saw Mr Douglas. He was well on the way to recovery.
  4. Dr Steadman agreed that the ultrasound findings were “unremarkable”, particularly for someone of Mr Douglas’s age, when most will have tendon ruptures and tears. Often these will appear on ultrasounds but be asymptomatic. Dr Steadman told us that a frozen shoulder will not appear on an MRI; it is a clinical diagnosis. Dr Steadman thought that the events at work were less likely to be the cause of the frozen shoulder than Mr Douglas’s diabetes. Nevertheless, Dr Steadman agreed with Dr Nutting that everything Mr Douglas did at work would (or could) provoke his shoulder symptoms, particularly if Mr Douglas continued carrying out his mail duties in the way that he did. Dr Steadman described Mr Douglas as an “at risk” employee doing his work that way, and he noted that he was better fitted to the role of union representative, which he was then doing.
  5. In summary, Dr Steadman’s concluded view was that Mr Douglas did not suffer from tendonitis (which would conceivably be work-related and would have provided a reasonable explanation of the dynamics of his 2007 injury). He was satisfied that it was more likely that the “injury” was a frozen shoulder, the predisposing cause being his diabetes. Dr Steadman expressed the view that the changes evident in Mr Douglas’s rotator cuff on ultrasound were not significant. In other words, from the vantage point of examining Mr Douglas in 2009 and taking into account the extensive medical reporting up to that time, Dr Steadman believed it was now clearer that:

DR GLENN DAVIES

  1. Dr Davies, orthopaedic specialist, first saw Mr Douglas in March 2009. At that time he, like Dr Steadman, diagnosed Mr Douglas as suffering with a frozen shoulder, but with a previous history of a tear.[13] As Dr Davies described it, the frozen shoulder was secondary to the 2007 injury (as represented by the tear later revealed in the ultrasound). Dr Davies agreed that it was impossible to reconcile Mr Douglas’s two ultrasounds, one showing an articular surface tear and the other a bursal surface tear. Of the two, he thought the October ultrasound was the unreliable one.
  2. Dr Davies said in his written report that a partial tear in the rotator cuff can go on to develop into a frozen shoulder, although he noted that frozen shoulders were more common amongst diabetics. Dr Davies provided a further report[14] stating that the MRI showed no evidence of a tear by August 2008, only tendinopathy, but he believed this was consistent with a healing partial thickness tear. Repair could be expected in up to 20% of cases.
  3. Dr Davies told us that he had been provided with the ultrasounds and the MRI, along with other X-rays and the list of Mr Douglas’s earlier accepted claims. However he said that he had not been provided with the reports of Drs Scott and Steadman. Dr Davies was at pains to point out to us, in his oral evidence, that he had not been commissioned to do a full medico-legal report. He had been approached in the first instance only for a second opinion.
  4. Dr Davies acknowledged that he had relied upon the history that Mr Douglas had provided to him concerning the causes of his shoulder problems.
  5. Dr Davies agreed with Dr Nutting that Mr Douglas does not have normal scapular movement. He also acknowledged in his oral evidence that the changes to be seen in Mr Douglas's shoulder could be consistent with age-related degeneration, but, equally, he said, they could be due to his employment. Dr Davies agreed with others who had commented on the matter, that Mr Douglas would run into difficulty working at tasks at or above chest level.

CONCLUSIONS

  1. Taking into account the medical evidence in its totality, it seems to us to make sense to approach the issues before us by dealing, firstly, with the substance of the third of the Mr Douglas’s applications to the Tribunal. This was the determination to cease compensation payments, made to Mr Douglas as a consequence of the 2007 injury, with effect from 29 February 2008.
  2. The reason that we approach the case in this way is that it allows full focus to be placed upon the contemporaneous medical evidence, which, it must be said, reveals a progressive improvement in the condition of Mr Douglas’s shoulder (as attested to by the treating doctors). The advantage, also, in this approach is that it places in context the Australia Post determinations subsidiary to the main questions, these being the determinations that:

2008/1678: WAS AUSTRALIA POST CORRECT IN DECIDING TO CEASE PAYING COMPENSATION?

  1. We would start, firstly, by reiterating that the respondent did not resile from the correctness of its initial acceptance of the 2007 injury. That is, Mr Douglas at that time had aggravated his underlying shoulder condition at work. We would emphasise that point, as it might seem that Dr Steadman’s conclusions suggest that the 2007 injury was never one connected with employment. This view runs counter to the preponderance of medical evidence.
  2. The medical evidence indeed evinces quite solid agreement, taking into account the evidence of Drs Reid and Watson, as confirmed by specialists Drs Scott and Nutting.
  3. We consider important, also, the congruence of views between the doctors who saw Mr Douglas close to the 2007 injury, with the opinions of those specialists. There emerged some common themes, including that the kind of shoulder problems Mr Douglas has are common for a person of his age. They are the result of wear and tear. There is basic agreement that such degenerative conditions can be aggravated at work, but then they can settle down in time and get better.
  4. A number of doctors referred to the role that Mr Douglas’s diabetes would play in the development of a frozen shoulder.
  5. It seems to us that medical evidence also makes clear that after the 2007 injury, Mr Douglas’s shoulder progressively improved. The reports to which we have referred indicate this to be the case. We accept the evidence of Drs Reid and Watson in that regard. Both these doctors were favourably placed to make these observations, having examined Mr Douglas at and soon after he sustained the 2007 injury. Both doctors say that injury was an aggravation of an underlying condition; it would get better within a relatively short timeframe. Mr Douglas would have periods when he might be without symptoms, but effectively anything that he did, whether it was at work or at home, could bring on symptoms.
  6. Mr Douglas’s case, on the other hand, is that from the day that he suffered the tear in September 2007, it went on to become a frozen shoulder. It was, he submitted, all part of a continuum.
  7. However the medical evidence does not support this argument. It is true that there is a suggestion of such a connection in the report of Dr Davies. However, Dr Davies did not examine Mr Douglas until some 18 months after the 2007 injury. Dr Davies acknowledged in his oral evidence that he did not have all the medical reports. He did not have the opportunity to consider the reports of Drs Scott and Steadman. Dr Davies necessarily relied upon the history that Mr Douglas provided to him, which, naturally enough, reflected the causal sequence as he saw it and as described to us in his submissions. That causal sequence depended in part on the results of the ultrasounds, which every medical witness told us could not be relied upon.
  8. We prefer the evidence of the specialists in this case, being that Mr Douglas has an underlying degenerative condition that was aggravated at work, but it was an aggravation likely to get better with time. It appeared to do so in the ensuing months. It is true that the reports indicate that Mr Douglas at some later time developed a frozen shoulder. However, we accept the evidence of Dr Reid that this was a later development of which there was no indication close to the 2007 injury.
  9. We are satisfied that the better view, taking into account all the medical evidence compiled in this case, is that the frozen shoulder was a likely development, related to Mr Douglas’s diabetes but not to the 2007 injury. We are mindful that the diagnosis of frozen shoulder first appears in reports from 2009.
  10. The question then, with a condition involving aggravation of an underlying degenerative condition, is to what point in time compensation should be paid with reference to such aggravation. Clearly one must rely on medical judgments. The medical evidence here showed that Mr Douglas's condition was improving in the months after the 2007 injury, so that he was able to return to work. He was being managed in the workplace in accordance with the advices of the doctors who were seeing him at the time.
  11. The doctors believed that the aggravation that had taken place in 2007 had ceased to be the effective reason for symptoms. The preponderance of medical evidence was in agreement: any kind of activity on Mr Douglas’s part was capable of making symptomatic his underlying degenerative condition.
  12. Mr Douglas told us in his oral evidence that he continued to feel pain when he was on the return-to-work programme in 2008, which pain limited the work he was able to undertake. In that regard, we had the advantage of his extensive diary notes. It is natural that Mr Douglas attributed his symptoms to the ongoing effects of the 2007 injury. But the doctors do not agree. The medical evidence, in particular the conclusions of the specialists, confirms that any kind of activity by Mr Douglas can bring on his symptoms. We accept the evidence of doctors seeing Mr Douglas at the relevant time (in particular Dr Reid’s evidence) that aggravation had ceased by the end of 2007.
  13. Conformably with the medical evidence, we were satisfied that the decision to cease compensation payments from the end of February 2008 was the correct decision, and we affirm it.

2008/0934 AND 2008/0935: THE RETURN-TO-WORK PROGRAMME 25 NOVEMBER TO 7 DECEMBER 2007 AND TOP-UP FOR THE PERIOD 25 NOVEMBER TO 29 DECEMBER 2007

  1. As to these matters, we have referred to them as being subsidiary issues, which must be understood in the context of the assessments of the doctors who were treating Mr Douglas at the time, which was that he had experienced an aggravation of his underlying shoulder condition.
  2. Dr Reid assessed Mr Douglas in November 2007 and confirmed that he was capable of returning to full-time work. The return-to-work programme was formulated taking into account this medical evidence. Mr Douglas considers that the aggressive approach to his return to work prolonged his recovery. However we do not accept this. We had ample medical evidence confirming that any sort of activity could bring on symptoms. In the context of this case, Dr Reid’s evidence is to be preferred. She had extensive experience as a consultant specialist in the field.
  3. We also note that the rehabilitation programme had been progressive, and took into account certain limitations on the kind of duties that Mr Douglas would be required to carry out in this period. The medical evidence supports the conclusion that he could carry out such restricted duties full-time. These duties were essentially the same as Mr Douglas had been able to carry out earlier the same month, but now for longer hours. This seems to us to be consistent with the progressive improvement that doctors were noting throughout November.
  4. Accordingly, we affirm the decision with respect to the period 25 November to 7 December 2007.
  5. Australia Post subsequently determined that Mr Douglas, for related reasons, was not entitled to partial incapacity payments from 25 November to 29 December 2007 (after which time he was on leave from work). This decision followed from the finding that Mr Douglas had the capacity to work full-time hours on a range of restricted duties from 25 November. We accept the evidence of Dr Reid as provided to Australia Post on 15 November 2007 that Mr Douglas was able to return to normal weekly hours (amounting to 45 hours 53 minutes). Taking into account that evidence, we affirm the decision that Mr Douglas was not entitled to top-up by way of partial incapacity payments from 25 November 2007.

IS AUSTRALIA POST LIABLE TO PAY COMPENSATION ON THE FEBRUARY 2008 CLAIM?

  1. The medical evidence is overwhelmingly against acceptance of Mr Douglas’s claim for compensation with respect to the 2008 incident.
  2. The section of the Act which provides the source of liability—s 14—provides that compensation will be payable for “injury” that results in impairment. But the “injury” there referred to must come within the terms of the Act as referred to in sections 5A and 5B. Taking into account the legislative tests entailed in those sections, Mr Douglas needed to show that he had suffered an aggravation of an ailment,[15] which would be compensable where it could be shown that he was suffering an ailment that was aggravated by his employment at Australia Post,[16] or that the aggravation was contributed to in “a significant degree” by his employment at Australia Post.[17]
  3. The case law makes clear that for a relevant aggravation, an existing disease or injury must be made worse (not simple become worse, or produce symptoms that do not reflect actual worsening of the underlying problem). Mr McLeod of counsel, who appeared for the respondent, referred to Australian Postal Corporation v Bessey [2001] FCA 266; (2001) 32 AAR 508, where Gyles J said that some worsening must occur and if the condition merely is temporary, leaving the underlying condition no worse, there is no relevant continuing injury.
  4. Mr Douglas stated in his claim that in the 2008 incident he was following his suitable duties programme and was working on the parcels machine when he felt pain in his left shoulder. We note that, at the time, Mr Douglas was seen by Dr Brett Fordyce, general practitioner, who certified that Mr Douglas had a partial tear of the supraspinatus, and he recommended no lifting with the left shoulder or use of the left arm above shoulder height.[18] The history as Mr Douglas presented it was to the effect that he had sustained a supraspinatus tear in the 2007 injury and that this had flared up in the 2008 incident. Dr Fordyce confirmed to us in his oral evidence that he relied on the history Mr Douglas presented in order to formulate that provisional diagnosis. Dr Fordyce said that he would defer to the specialist opinions.
  5. Mr Douglas saw the specialist Dr Nutting not long after the 2008 incident. Indeed Australia Post sent Mr Douglas to Dr Nutting to obtain a report in relation to his new claim. Dr Nutting’s opinion was that it was not possible to say that any one incident, more than any other, would be “significant” for the symptoms that Mr Douglas had. Any and all activities would be productive of symptoms, he said, due to the disorder of his shoulder girdle mechanics. Dr Nutting did not consider that Mr Douglas’s employment as a mail officer was a significant contributor. Mr Douglas had a purely mechanical problem, in combination with degeneration from natural aging processes.[19]
  6. We accept the evidence of Dr Nutting and note that it is consistent with the earlier reports of Drs Reid and Watson.
  7. The evidence taken as a whole does not reveal a link between employment and injury. All relevant contributing factors need to be assessed to decide whether, in a particular case, the employment made a significant or any other kind of contribution. The specialist evidence is against such a conclusion here. We accept the evidence of Dr Nutting that Mr Douglas would experience the same symptoms undertaking any activities in certain positions whether at home or at work. Dr Scott’s evidence was to the same effect.
  8. We would note here that we have no hesitation in accepting that Mr Douglas suffers genuine symptoms in his shoulder. So much is evident from the reports of all the specialists. However, the evidence of the various specialists lends no support to a connection between the symptoms Mr Douglas was claiming in February 2008 and the circumstances of his employment at Australia Post.
  9. We accept the evidence of Dr Reid that when she last examined Mr Douglas in January 2008, he had degenerative rotator cuff disease and that the effects of the 2007 injury had settled. What Mr Douglas was suffering then, according to Dr Reid, was “painful limitation of left shoulder joint movement”, part of the natural progression of his underlying age-related degenerative condition. Dr Watson agreed.
  10. These of course are symptoms unrelated to Mr Douglas’s work as a postal officer; symptoms that, according to Dr Nutting and others, he would experience whatever he was doing. Taking into account the medical evidence, Mr Douglas cannot show that his employment explained the symptoms he experienced at that time. Accordingly, we affirm the decision that rejected the claim as it related to the 2008 incident.

DECISION

  1. The Tribunal affirms the decisions under review.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member, and Associate Professor J B Morley, RFD, Member.


Signed: ...........................[Sgd]................................................

Mátyás Kochárdy, Associate


Dates of Hearing 21 July & 13 October 2009; 25 May 2010

Date of Decision 25 June 2010

The applicant was self-represented

Counsel for the Respondent Mr S McLeod

Solicitor for the Respondent Sparke Helmore


[1] 2008/0934, T280.
[2] 2008/0934, T274.
[3] 2008/0934, T280.
[4] 2008/0934, T285: Report dated 15 October 2007.
[5] 2008/0935, T35: Report dated 10 March 2008.
[6] Transcript of 21 July 2009, at page 54.
[7] 2008/0934, T299.
[8] 2008/0934, T302.
[9] 2008/0935, T13.
[10] 2008/3803, T13 at folio 37.
[11] Exhibit A4.
[12] Exhibit A4 at page 3.
[13] Exhibit A6.
[14] Report dated 14 January 2010.
[15] Ailment is defined as “any physical or mental ailment, disorder, defect or morbid condition”: s 4 of the Act.
[16] Section 5A(1)(c) of the Act.
[17] Section 5B(1)(b) of the Act.
[18] 2008/0935, T27.
[19] 2008/3803, T13.

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