Montesalvo and Australian Postal Corporation [2011] AATA 319 (13 May 2011)

Last Updated: 16 May 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 319

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/2359

GENERAL APPEALS DIVISION		)
	Re		GLENDA MONTESALVO

Applicant

And

AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe

Date 13 May 2011

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..................[SGD]............................
Senior Member

CATCHWORDS

COMPENSATION - calcific tendonitis of the supraspinatus tendon - frozen shoulder - decision affirmed

Safety Rehabilitation and Compensation Act 1988

Provost and Repatriation Commission [2011] AATA 153

REASONS FOR DECISION

13 May 2011

Senior Member Bernard J McCabe

1. Glenda Montesalvo experiences serious pain in her right shoulder. Her doctors say she is one of many Australians who suffer from calcific tendonitis of the supraspinatus tendon. She accepts that condition is not caused by repetitive work or by traumatic injury. But Ms Montesalvo says the condition became painful – it became symptomatic, whereas it was previously asymptomatic – because of an injury that occurred in the workplace. She says that pain is debilitating, and she has developed a frozen shoulder as a result. She says her employer, the Australian Postal Corporation, is liable under s 14 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) for the shoulder condition. The respondent disagrees.
2. The outcome of the dispute turns on the interpretation of s 5A. I must decide whether the evidence establishes Ms Montesalvo’s shoulder condition arose out of, or in the course of, her employment.
3. Mr King-Scott, for the applicant, said this was an easy case. He pointed out the applicant’s un-contradicted evidence established that she experienced sudden pain while reaching into a receptacle at a mail centre to retrieve boxes of mail. The stack of boxes may have weighed as much as 60 kilograms. The applicant says she continues to experience that pain today, although some days are worse than others. I have no reason to doubt her account of the incident at the mail centre, and I accept it. The applicant says she now has limited use of her shoulder because it has frozen. Dr Hazelton (the specialist rheumatologist who saw Ms Montesalvo at the respondent’s request) questioned whether the applicant has a frozen shoulder. Dr Hazelton said the applicant was not being treated on that basis. He also doubted whether the ultrasound studies supported the applicant’s account of her current condition.
4. Mr King-Scott says there is an irresistible inference that the incident in the workplace is linked to the rapid onset of the symptoms which have resulted in the frozen shoulder. The applicant was fine before the incident, but she experienced debilitating pain almost immediately thereafter. He argued Ms Montesalvo’s current condition (or her experience of that condition) is the product of what happened in the workplace, and is therefore compensable.

WHAT THE MEDICAL EXPERTS SAY

5. I have already referred to the essential facts of the case. The applicant had never experienced serious or persistent pain in her shoulders or arms in the past (although the medical records suggest she had experienced minor discomfort from time to time). Notwithstanding the absence of significant ongoing symptoms, it is now established the applicant had experienced calcific tendonitis in the right shoulder for some time prior to 2010. On 12 March 2010, Ms Montesalvo reached into a bin containing stacked “flutes” or receptacles of mail at a sorting centre. She immediately experienced intense pain which has not abated. She says it has led to a frozen shoulder condition.
6. The applicant called Dr Douglas to give evidence. He also prepared several reports. He is a consultant rheumatologist with a special interest in shoulder conditions. He is the author of a number of papers dealing with the phenomenon of frozen shoulders, which is also known as adhesive capsulitis. The essence of his evidence is contained in the following extract from his report of
   24 January 2011 (exhibit 5):

It is my opinion that the work-related incident which she describes directly caused a mechanical injury to the supraspinatus tendon in the area of the calcium deposit. This caused release of crystals resulting in acute irritation and inflammation in the right shoulder, which led directly to a right frozen shoulder. Therefore there is a direct relationship between the pulling action and the acute pain in her right shoulder on
12 March 2010.

7. The report also included a number of journal articles discussing shoulder pain.
8. That report was provided following a neutral evaluation conducted by one of the Tribunal’s medical members, Dr Morley. The parties consented to me reading the evaluation. Dr Morley had asked the parties to provide evidence that events in the workplace could (or would not) cause the release of the crystals which led to the pain. He suggested the parties identify medical literature that might shed light on the issue. Dr Morley also recommended that Dr Douglas be asked to provide medical evidence that explained how the underlying condition and the release of crystals might lead to a frozen shoulder.
9. Dr Douglas provided a supplementary report dated 24 January 2011. While he referred to a number of journal articles and a textbook entry in support of his opinion, he was unable to draw my attention to a particular finding in the literature that trauma caused the release of crystals. He explained his opinion on the following basis:

I have a particular interest in the subject of adhesive capsulitis and have presented and published widely on the topic. It is my experience that any acute insult to the shoulder joint can lead to adhesive capsulitis or frozen shoulder.

10. He went on to add that in this case he remained convinced the incident in the workplace caused a mechanical injury to the calcium deposit in the shoulder, which led to the release of the crystals, which resulted in acute irritation and inflammation and pain, which led to a frozen shoulder.
11. I note an entry in a textbook (Martin and Thornhill, Kelley’s Textbook of Rheumatology (7 ed 2005) at pp 571-572) suggests that pain and decreased motion associated with calcification could lead to adhesive capsulitis.
12. Dr Hazelton gave evidence at the request of the respondent. Dr Hazelton is also a consultant rheumatologist. He said his review of the scientific literature caused him to doubt that trauma occurring in the workplace would cause the release of crystals. He explained in oral evidence that the release of crystals tended to occur spontaneously. He added that the applicant’s account of experiencing immediate pain was inconsistent with what one would expect if the crystals were released as a consequence of trauma. He said it would ordinarily take 12 hours or more after the release of the crystals for the acute irritation and inflammation to result in pain. He said acute events like this did not occur in the way Ms Montesalvo described. That tends to suggest her pain must have another explanation. He was not clear on what that alternative explanation might be: perhaps the incident ‘drew attention’ to the applicant’s previously asymptomatic condition, he offered.
13. Both medical experts are well-credentialed. Both referred to scientific literature in support of their different opinions. Dr Douglas was untroubled by the absence of direct support in the literature for his explanation of how the crystals came to be released. Dr Hazelton suggested the absence of support in the literature tended to discount Dr Douglas’s theory. Who is right?

ANALYSING THE EXPERT EVIDENCE

14. The Tribunal is not in the business of definitively resolving scientific or medical disputes. My task is to determine whether I am satisfied the applicant’s shoulder condition – however it is described – arises out of her work. Sometimes, if the state of the science is uncertain, the Tribunal will be incapable of being satisfied that an applicant’s condition is attributable to a work-related incident. On other occasions, the Tribunal will be expected to make a decision without waiting for the final word from the experts. As scientific knowledge evolves, it may become apparent that the Tribunal has wrongly concluded that a connection between a work-related incident and a condition does (or does not) exist. That is regrettable, but we must work with the evidence available to us and do the best we can. The important thing, though, is that there must be credible evidence upon which the Tribunal can form a view that there is a connection: see Provost and Repatriation Commission [2011] AATA 153 at [42].
15. Students of logic - and of dead languages - are familiar with the expression Post hoc, ergo propter hoc. Loosely translated, it means “the fact one event follows another does not necessarily mean the first event caused the second”. A temporal connection between two events will often be present where there is a causal connection, but one should hesitate before concluding a temporal connection of itself indicates a causal relationship between the events unless alternative explanations for the second event have been considered and discounted – and perhaps not even then. In this case, there is an alternative explanation proffered by Dr Hazelton: the injury in the workplace somehow drew the applicant’s attention to her underlying condition. I note Dr Hazelton did not put that view with particular conviction in the course of his oral evidence. It seems he formed that opinion because he was not persuaded that any other explanation was superior. I accept his opinion might explain the sudden onset of pain, whereas Dr Hazelton says a release of crystals would not lead to pain and inflammation until several hours after the insult to the joint. That last conclusion – in relation to the timing of the onset of pain – appeared to be grounded more firmly in the scientific literature.
16. Dr Douglas, on the other hand, is unable to refer to any specific support in the literature for his conclusion that the incident and the condition are related. I accept (a) he is well-credentialed and (b) his hypothesis is not necessarily excluded by the literature, but that is not enough for me to satisfy myself that he is right. He may be right, but that is not the test.

CONCLUSION

17. The reviewable decision is affirmed.
    

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: ..........................[SGD]............................................

Kerri Smith

Date of Hearing 18 April 2011

Date of Decision 13 May 2011

Counsel for the Applicant Mr R King-Scott

Solicitor for the Applicant Slater & Gordon Lawyers

Counsel for the Respondent Mr C Clark

Solicitor for the Applicant DLA Phillips Fox