Abdelsamie and Australian Postal Corporation

[2008] AATA 694

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 694

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200700050, 2007/4625

GENERAL ADMINISTRATIVE DIVISION		)               and 2007/5467
Re		YASER ABDELSAMIE

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member

Date8 August 2008

PlaceBrisbane

Decision The Tribunal affirms the reviewable decisions.

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

Senior Member

CATCHWORDS

COMPENSATION – Injury – Applicant claims a number of injuries result in incapacity for work – Wrist and forearm injuries – Elbow injury – Psychiatric injury – Contradictory medical evidence – Wrist and forearm injuries did not result in incapacity – Elbow injury did not incapacity – Psychiatric condition did not result in incapacity– Decisions affirmed

REASONS FOR DECISION

8 August 2008 Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member    

1.      Mr Yaser Abdelsamie, the applicant, is employed by Australia Post as a mail sorter. He says he has suffered a range of health conditions as a result of his work. He has sought compensation under the Safety, Rehabilitation and Compensation Act 1988 (“the SRCA”). Australia Post, the respondent, has accepted liability for an injury to Mr Abdelsamie’s right shoulder that occurred at work in 2003. It says the rest of the applicant’s complaints are exaggerated or unrelated to his work and it has declined to meet his demands under the SRCA. The dispute has now come before the Tribunal.

2.      Three files are being dealt with together. They are:

·Q 200700050: This file deals with a forearm and wrist condition. The reviewable decision dated 27 November 2006 affirmed a determination to refuse liability in respect of a wrist and forearm condition, and to reject a claim for total incapacity payments in the period 8 August through to 10 September 2006.

·2007/4625: This file deals with a reviewable decision dated 17 August 2007 affirming a determination to deny liability to pay compensation for an alleged psychiatric injury that the applicant says was brought on by his right shoulder condition.

·2007/5467: This file relates to a reviewable decision dated 7 October 2007 affirming a determination to deny liability for an alleged injury to the applicant’s right elbow. Mr Abdelsamie claims he suffers from lateral epicondylitis or de Quervain’s tenosynovitis.

3.      We have decided to affirm all of the reviewable decisions. We explain our reasons below.

The factual background

4.      Mr Abdelsamie is an educated man. He holds bachelors’ degrees from an Egyptian university and a master’s degree in ancient history from Macquarie University. His field of expertise is Egyptology. He is registered as a secondary school teacher. Overall, Mr Abdelsamie presents as a cultivated, articulate and intelligent individual. He works as a mail-sorter at Australia Post’s Underwood mail centre in Brisbane.

5.      The applicant started work at Underwood in 2002. He injured his right shoulder at work on 28 August 2003. The respondent accepted liability for that condition and placed the applicant on a restricted duties program that limited the kind of work that he could do.

6.      Mr Abdelsamie took leave from Australia Post at the beginning of 2004. During this period of leave, he worked as a teacher. That job did not work out and he resumed his employment at Australia Post in August 2004. He was still suffering the effects of his shoulder injury at that point. He commenced a return to work program and remained on restricted duties for some time. He completed the return to work program and was working without restriction for a period of about four weeks when he claimed he injured his right shoulder again on or about 28 May 2005.

7.      The applicant says his problems began to multiply in 2006. On 26 May of that year, he says he injured his left shoulder. He complained of pain in the right wrist and forearm on 16 June 2006 as a result of the video coding and typing work he had had recently commenced as part of a revised suitable duties program. He claimed he experienced increased pain in his right shoulder on 26 June. He ceased the video coding and typing activities in his suitable duties program on 10 July and ceased work altogether on 8 August 2006. He claimed he was totally incapacitated from that date until he returned to work on a new suitable duties program on 7 September 2006. On 1 May 2007, Mr Abdelsamie claimed he had a psychiatric condition and on 16 July 2007 he made a claim in respect of an injury to his right elbow.

8.      Mr Abdelsamie remains employed at Australia Post albeit that he remains on restricted duties. He says he hates his job. His suitable duties program is being reviewed and revised regularly. He continues to complain of severe pain in the right shoulder in particular. He says the pain has become unmanageable and he cannot sleep: see, for example, Exhibit 10, at page 124. He complained repeatedly in the course of his oral evidence of the effect the pain was having on his home life and social activities.

The medical evidence

9.      The outcome of this dispute depends on the medical evidence. We heard from a number of experts including the applicant’s treating general practitioner. We will discuss the evidence in the context of each of the separate conditions since not all of the doctors sought to comment on all of the applicant’s conditions.

10.     We turn firstly to the claim in respect of the forearm and wrist condition. The applicant says he sustained the injury on 16 June 2006 while he was engaged in video coding. He completed a P400 incident report form on 10 July 2006. He said he suffered extremely severe pain from the time of the injury. He reported the pain some time after the injury to Dr Farag, his general practitioner, but she was unable to point to any objective signs of the injury. Drs Robinson and Olsen recorded the applicant’s complaint of pain, but did not report any other evidence of injury. Dr Olsen said he thought it was unlikely that typing and video coding work would cause the pain Mr Abdelsamie claims to have suffered.

11.     In summary, the only evidence that the applicant suffers or suffered from a wrist and forearm condition comes from the applicant himself. It is therefore important for us to reach a view on his credit. As it happens, we think his evidence should be treated with caution. Mr Abdelsamie is given to making extravagant claims. For example, in his letter of 21 November 2006, the applicant wrote:

I am not able to cope with pain anymore. With horses they pull the trigger to have mercy with the suffering animal. With dogs and cats they have RSPC [sic] to look after the wellbeing of the suffering animal.

Please consider me a dog or horse and put me out of my pain, misery and suffering. 

12.     We are conscious that extravagant or intemperate language is not uncommon where an individual is in pain. But Mr Abdelsamie’s complaints about pain have not been consistent. For example, he complained of severe pain in his evidence before the Tribunal and in some of the correspondence with Australia Post but he did not report ongoing severe pain to Dr Robinson, his treating specialist (see Exhibit 1, at folio 85) nor did he report shoulder pain to Dr Farag when she saw the applicant after the incident in July and on 9 August 2006: see Exhibit 1, at folios 69 and 74.  Mr Abdelsamie is also disposed to imputing bad faith to anyone who did not provide the advice he expects, or who had a different recollection of events or conversations. We note he was critical of a range of witnesses, including Dr Robinson, and that he made a number of unsubstantiated allegations against one of the doctors who provided a report that we do not need to address here. His demeanour during cross-examination was evasive. At a minimum, we think the evidence establishes that he is not a reliable and consistent historian.

13.     Given the medical evidence, we are not persuaded the applicant experienced a wrist and forearm condition as he alleged.

14.     The decision in Q 200700050 also refers to a claim for incapacity benefits arising out of the applicant’s absence from work in the period 8 August through to 10 September 2006. Mr Abdelsamie says the absence is attributable to his shoulder injury – yet he told Dr Robinson that he was not experiencing right shoulder pain at that point: Exhibit 1, at folio 85. A careful examination of Dr Robinson’s evidence suggests he was not motivated to sign the certificate out of concern for the applicant’s physical conditions in any event. Rather, Dr Robinson made it clear he was concerned about the applicant’s mental state. He explained in his report of 14 August 2006:

He appears to be developing a secondary psychological condition. I have given him a month off work to remove him from the environment which is causing him physical and psychological conditions. (emphasis added)

We note that, strictly speaking, Dr Robinson was not qualified to offer what amounted to a psychiatric opinion. 

15.     Dr Farag’s certificate refers to problems with the wrist and forearm as the basis for her medical certificate excusing the applicant from work during the period in question. Given we are not persuaded the applicant is a reliable historian and Dr Farag had no objective evidence of the applicant’s condition, we are not inclined to give the certificate a great deal of weight.

16.     We are satisfied that the decision referred to in Q 200700050 should be affirmed as we are not persuaded the applicant experienced the wrist and forearm pain that he claimed. We also do not accept he was excused from work because of that condition or because of his shoulder.

17.     We turn now to the elbow condition. The applicant referred to evidence from a first aid officer suggesting the applicant had redness across the knuckles and up to the wrist above the bone following an incident on 3 July 2007: Exhibit 4, at folio 3. The note does not refer to pain in the elbow. Mr Abdelsamie attended the Queen Elizabeth II Jubilee Hospital the same day where he was provided with a certificate offering a provisional diagnosis of “?tennis elbow/de Quervain’s tenosynovitis” (Exhibit 4, at folio 4). Dr Farag diagnosed “R elbow de Quervains tenosynovitis, tennis elbow” on 6 July. She did not report any objective signs of injury apart from the applicant’s complaints of pain and swelling.

18.     Against that evidence is the opinion of Dr Reid. Dr Reid is a neurologist with an interest in upper-limb conditions. She saw the applicant on 2 August 2007. She said in her report that the applicant agreed he was not experiencing any elbow or wrist pain at the time. She saw no evidence that he was suffering from either lateral epicondylitis or de Quervain’s disease at the time, and considered it debatable that he had been suffering from either of those conditions the month before. She also said she thought it was unlikely that the kind of work the applicant was doing would lead to a wrist or elbow condition like those he described.

19.     Given Dr Reid’s specialist expertise, we prefer her opinion. We do not accept the applicant suffered from lateral epicondylitis or de Quervain’s disease. It follows we do not accept the respondent is liable to pay compensation to the applicant. The decision in 2007/5467 is therefore affirmed.

20.     We now turn to the applicant’s claim that he is suffering from a psychiatric condition. He relies on the evidence of Dr O’Callaghan who diagnosed an adjustment disorder secondary to the right shoulder injury (Exhibit 3, at folio 13). Mr Whittingham, a psychologist, also agreed the applicant suffered from an adjustment disorder related to his shoulder injury, although he appeared to be of the view that the applicant’s involvement in the compensation process might have made a more important contribution. Dr Farag stopped short of diagnosing a psychiatric condition, although she noted an “element of depression” (Exhibit 3, at folio 15). Dr Redden, however, found the applicant did not suffer from a psychiatric condition.

21.     We prefer the evidence of Dr Redden to the other experts. While Mr Whittingham’s evidence was helpful, we note that he is not a psychiatrist. We also note that Dr O’Callaghan was the applicant’s treating doctor at the time, as was Dr Farag. Dr Redden, by contrast, was obviously an independent expert.

22.     Dr Reddan gave evidence at the hearing. She explained her observations and her conclusions with care. She was questioned in detail about her observations. We are satisfied she was able to take into account all of the material that has become available, whereas the other experts were not necessarily aware of aspects of the applicant’s history of work difficulties.

23.     Dr Reddan says the applicant exhibits a number of personality features that predispose him to being angry and hostile. She also noted evidence of contempt for co-workers, persecutory thinking, rigidity and a tendency to assume bad faith. This evidence is consistent with the observations of Mr Whittingham. We note that many of these personality features were on display throughout the course of the hearing when the applicant gave evidence and questioned witnesses.

24.     We accept Dr Reddan’s evidence that the applicant does not suffer from a diagnosable psychiatric condition. In those circumstances, the decision in 2007/4625 must be affirmed.

Conclusion

25.     The reviewable decisions are affirmed.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr G J Maynard, Brigadier (Rtd), Member.

Signed:............................[Sgd]................................................
  Michael Buckingham, Associate

Dates of Hearing  14, 15, 16, 18 and 24 April 2008
Date of Decision  8 August 2008
Applicant was self-represented
Counsel for the respondent      Mr D C Rangiah
Solicitor for the respondent      Australian Government Solicitor