Arachchige and Australian Postal Corporation
[2008] AATA 228
•25 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 228
ADMINISTRATIVE APPEALS TRIBUNAL )
) N 2006/0675, N 2006/676
GENERAL ADMINISTRATIVE DIVISION ) N 2006/1691& N 2006/1692
Re DONA PULLUKUTTI ARACHCHIGE Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date25 March 2008
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decisions under review. ............. [sgd]........................
Ms N Isenberg, Senior Member
CATCHWORDS
Workers’ compensation – injuries sustained in the course of employment – claim for permanent impairment – claim to continue to suffer the effects of the injury – review of decision to deny liability – decisions under review affirmed.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 4, 14, 16, 19, 24, & 27
REASONS FOR DECISION
25 March 2008
Ms N Isenberg, Senior Member
DECISIONS UNDER REVIEW
1.Ms Arachchige (“the Applicant”) seeks review of the following decisions:
(a)The decision dated 25 May 2006 which affirmed the determination (dated 3 March 2006) denying liability to pay compensation for permanent impairment in respect of back and left knee;
(b)The decision dated 25 May 2006 which affirmed the determination (dated 2 May 2006) denying liability to pay compensation for permanent impairment in respect of left shoulder;
(c)The decision dated 22 November 2006 which affirmed the determination (dated 5 June 2006) ceasing liability to pay compensation for left shoulder and muscle strain low back, soft tissue injury right forearm, left ankle and knee; and
(d)The decision dated 22 November 2006 which affirmed the determination (dated 20 June 2006) denying liability to pay compensation for head and knees injury sustained on 31 March 2006.
BACKGROUND
2. Ms Arachchige was employed by the Australian Postal Corporation (“Australia Post”) (“the Respondent’) as a part-time Postal Services Officer from 13 February 1997 until 5 June 2006 when she was dismissed. Ms Arachchige alleged she sustained various injuries in three workplace related incidents. Firstly, that on 21 May 2002, in the course of her employment, she was struck on the left shoulder when a heavy security door was blown shut. Secondly, that on 11 November 2003, she sustained injury to the waist, back, left ankle, right knee and forehead after falling off a ladder while retrieving a parcel from the top shelf at Surry Hills Post Office. Thirdly, that on 31 March 2006 she fell while walking on the road on her way to work, sustaining injury to her forehead and a scratch on both knees
ISSUES FOR DETERMINATION
3.I have had to decide:
(a)Whether the Applicant suffered from a left shoulder injury as a result of the alleged incident occurring in the course of her employment with Australia Post on 21 May 2002;
(b)If so, whether the Applicant continues to suffer the injury and, as a result, is entitled to compensation under section 16 and section 19 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”);
(c)Whether any such injury results in a permanent impairment, and whether the Applicant is entitled to any compensation under sections 24 and 27 of the Act;
(d)Whether the Applicant suffers from any left knee, low back, left ankle and right forearm injury as a result of the alleged incident occurring in the course of her employment on 11 November 2003;
(e)If so, whether the Applicant continues to suffer left knee, low back, left ankle and right forearm injury and, as a result, is entitled to compensation under section 16 and section 19 of the Act;
(f)If so, whether any such injury/s results in a permanent impairment and whether the Applicant is entitled to any compensation under sections 24 and 27 of the Act; and
(g)Whether the Applicant suffers from a head or knee injury as a result of the alleged incident occurring on the way to work on 31 March 2006 under section 14 of the Act.
LEGISLATIVE FRAMEWORK
4. The relevant legislation in this matter is the Safety Rehabilitation and Compensation Act 1988 (as at the dates of the decisions under review), in particular sections 14, 16, 19, 24 and 27, which are extracted in Schedule 1 to this decision.
EVIDENCE
5. The Applicant gave evidence, as did Dr Browne, rheumatologist, Dr Bleasel, neurosurgeon, Dr Maxwell, orthopaedic surgeon, and Dr McGill, rheumatologist.
6. Reports were tendered from Dr Wallace, orthopaedic surgeon. Numerous references were made to reports in the T-documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, from Ms Arachchige’s treating shoulder surgeon, Dr Petchell, and treating rheumatologist, Dr Youssef. The notes from the practice of Ms Arachchige’s General Practitioner (“GP”) were also tendered.
7. In the course of the hearing, 33 minutes and 40 seconds of video surveillance of the Applicant taken on 3, 4 and 5 December 2006 was played.
8. The exhibits are detailed in Schedule 2.
CONSIDERATION
Left shoulder
9. Ms Arachchige gave evidence that on 21 May 2002 she was assisting a colleague to load mail bags into a truck and there was a heavy security door nearby, which was usually secured in an open position. The door blew shut with a wind gust and struck her on the front of the left shoulder. She reported the incident and put an ice pack on the shoulder. She continued working the remaining four hours of her shift and that night the shoulder became painful and was swollen. She took Panadol.
10. In cross-examination though, she said that in the days following the incident she did not have any problem with her shoulder but within a week she experienced “different feelings like movement”. She could not remember when that was, although she said the pain had started the night of the injury. About a month after the injury she was able only to abduct to a level demonstrated to be about 130 degrees.
11. The day after the incident she consulted her GP, who referred her to Dr Youssef.
12. Dr Youssef diagnosed rotator cuff tendonitis of the left shoulder and arranged investigations and subsequently administered corticosteroid injections to the left shoulder, but Ms Arachchige did not think they provided much relief. Ms Arachchige also had physiotherapy.
13. Ms Arachchige continued to work while experiencing ongoing left shoulder pain and was referred by Dr Youssef to Dr Petchell, who performed further investigations including an MRI. Dr Petchell noted on 11 April 2003, that she had evidence of a subacromial bursal inflammation and thickening, and some mild adhesive capsulitis.
14. Dr McGill examined the Applicant on 30 May 2003 and found movement of the left shoulder to be mildly restricted and that impingement tests on the left produced pain. Dr McGill opined that clinical and MRI findings suggested that the Applicant suffered from “impingement subacromial bursitis and probable mild adhesive capsulitis”. He was of the view that the injury as described would not have caused impingement although it would have aggravated the Applicant’s shoulder and that she was constitutionally predisposed to impingement. He suggested that the Applicant continue physiotherapy and that no surgery was required, although he considered that manipulation under anaesthetic, as recommended by Dr Petchell on 17 June 2003, was reasonable.
15. On 12 September 2003 Dr Petchell reported that the Applicant described her pain as worse and he considered she may require arthroscopic examination with an arthroscopic bursectomy and/or acromioplasty. At the time of the hearing, in February 2008, the Applicant had not undergone any surgical procedure for the left shoulder.
16. Dr Maxwell reported on 23 October 2003 that unless the Applicant was forcibly abducting her shoulder at the time she was struck by the door it was unlikely that that incident would have produced supraspinatus tendonitis or damage to the supraspinatus tendon. Although he considered some aspects concerning the Applicant’s presentation to be unusual, he accepted that the restriction of abduction in the left shoulder was probably related to the incident of 21 May 2002.
17. In her evidence the Applicant said that by November 2003 (the time of the ladder incident) there was no difference in her shoulder after she worked a day and when she had not. When Dr Petchell saw her on 17 November 2003 he said that the Applicant felt her left shoulder pain had been exacerbated by her fall on 11 November 2003.
18. On 17 February 2004 she was examined by Dr Jones, consultant orthopaedic surgeon, who noted that at that stage, her neck and shoulder movements were normal, that she made no real neck complaints to him and that there was only slight restriction of left abduction to 150 degrees.
19. On 2 November 2004 Dr Miniter, orthopaedic surgeon, reported that examination of the Applicant’s left shoulder was normal, there was no muscle wasting and her range of movement was full. He opined that it was highly unlikely that the Applicant suffered from any significant abnormality of her left shoulder. Ms Arachchige denied in her evidence she had been able to move her left arm fully compared to her right arm.
20. An MRI scan of her left shoulder, on 30 November 2004, showed decreased thickening of the subacromial-subdeltoid bursa compared to the previous study.
21. On 8 December 2004, Dr Petchell wrote that arthroscopic acromioplasty could be considered if cuff strengthening exercises and physiotherapy did not improve the Applicant’s symptoms.
22. On 23 February 2005, Dr Petchell reported that Ms Arachchige’s shoulder continued to trouble her, but less than previously. On 26 July 2005, Dr Petchell reported that the Applicant exhibited some restriction of movement in her left shoulder and that she continued to suffer from symptoms attributable to subacromial impingement. On 18 October 2005, the Applicant told Dr Petchell that her shoulder pain was worse and he again raised the suggestion of an arthroscopic acromioplasty.
23. Dr Maxwell reported on 13 April 2006, that the Applicant complained of “slight tenderness on palpation of her left shoulder in the region of the supraspinatus tendon”, but also noted that she complained of pain when he exerted direct pressure on the clavicle. Dr Maxwell found the Applicant to have a full range of movement of the left shoulder, although she denied this in cross-examination. He considered she had recovered from any work-related supraspinatus tendonitis and subacromial bursitis.
24. In his evidence, Dr Maxwell said that a supraspinatus injury normally resolves in a young person. He noted the time since Ms Arachchige’s injury that he had observed good range of movement, and no wasting of her left arm. He thought it unlikely that a young person’s symptoms would deteriorate. He agreed pain levels could vary according to what is being done, the kind of day, and what activity has preceded the time when the movement is tested.
25. When Dr Browne examined her on 19 September 2006, she would not actively abduct her shoulder beyond about 90 degrees. He found no wasting in the left upper limb, as might be expected. He observed that there was some improvement in 2004 relative to the 2003 scans of the shoulder which he considered to be consistent with the condition resolving or healing, as would be expected.
26. On 3 October 2006, Dr McGill confirmed the history he took in 2003 and reported that when he asked the Applicant to recap on her current symptoms and recent symptoms she nominated her neck even though she had mentioned it only briefly up to that time. She also mentioned low back pain. After prompting from Dr McGill she mentioned that she had pain in the left shoulder sometimes when lifting shopping bags. The doctor concluded that any injury to the left shoulder sustained on 21 May 2002 had resolved and on examination had no evidence of impingement or adhesive capsulitis. He found that the Applicant had a full range of movement. He agreed in cross-examination that she had told him her shoulder pain fluctuated.
27. In cross-examination Ms Arachchige denied she had been able to fully move her left shoulder when she was examined by Dr McGill. In fact, she said that at no time since the injury had she been able to fully lift her left arm. By demonstrating with her right arm, she could abduct to only 130 degrees. She was emphatic that she never lifts the left arm above the shoulder. She said she could never lift her left hand above the horizontal at the clothesline.
28. Dr Bleasel examined the Applicant on 11 July 2007. He accepted her contention that as a result of the shoulder problem, she cannot reach up. Before giving his evidence he had seen the video. He said the kinds of arm movements observed were spontaneous and could easily be performed without her being aware of any serious pain. In any event, he said, range of movement results can vary from day to day, depending on circumstances.
29. As to her present symptoms, Ms Arachchige gave evidence that in her day to day life she does not lift her arm beyond 90 degrees. Her evidence was not put in the terms of “sometimes I do it”, or “occasionally”. She said that her shoulder causes problems doing housework, especially lifting if she had to lift her arms. She described problems pulling washing from the washing machine, putting the clothes on the clothesline and with carrying the shopping. Undoing her bra with her left hand causes pain. She said she could not comb her hair with the left hand. In fact, she said she tries to avoid lifting her left hand.
Discussion of the evidence
30. Ms Arachchige has given a number of accounts of the accident, for example, she told Dr McGill that her left arm was thrown back and she demonstrated that action using her right arm. In the demonstration she lifted her arm in the air and moved it backwards with the hand held high in the air. In other accounts (for example to her GP, Dr Aroney at Exhibit R10 and Dr Maxwell at p97 of the T-Documents) she said she was hit from behind. Dr Bleasel, in more recent times, referred to her being pushed sideways. She apparently told Dr Youssef, on 10 June 2002, that she was “pushed back quite a distance”.
31. I accept that on 22 May 2002, Ms Arachchige injured her left shoulder at work. I agree with counsel for the Respondent that her account was largely incomprehensible, but accept that as she immediately reported the incident and all subsequent medical certificates and reports refer to her left shoulder (although in her Claim for Compensation completed a few days later she had referred to the right shoulder).
32. I accept that at first the injury was considered to be potentially serious. Her early referral to Dr Youssef supports this view, and I accept that the cortisone injection would not have been required if the condition had been trivial. I accept too that her problem continued through 2003, as all the doctors – both Applicant and Respondent – are of this view.
33. By February 2004, however, when she saw Dr Jones there was only a slight restriction in her ability to fully abduct and flex on the left, and she was able to place her hands behind her head and neck. Similarly in November 2004, Dr Miniter found her to have a full range of movement, as he did again in March 2005. Also in November 2004, Dr Petchell found her to demonstrate “quite [a] good range of motion”.
34. The medical evidence leads me to the view that, on balance, her shoulder problems were resolving by that time, especially as the prognosis was for recovery.
35. In coming to this view, I note in particular the objective evidence of the MRI scan of 30 November 2004, which showed improvement and that the suprapinatus tendonitis was described as “mild”. I also note the report of her treating orthopaedic surgeon, Dr Petchell, stated on 23 February 2005 Ms Arachchige’s shoulder troubled her less than previously.
36. When she saw Dr Wallace on 21 June 2005, although she complained of some numbness and weakness in the left arm and stiffness in the left shoulder, she had full range of movement.
37. On 13 April 2006 when she saw Dr Maxwell there was full movement, as there was when she saw Dr McGill on 3 October 2006. I have come to the view that by that stage the condition had resolved. I could not find an adequate explanation for the reduction in range of movement (abduction) which subsequently was reported: Dr Browne (6 November 2006) 90 degrees, Dr Wallace (26 February 2007) 170, degrees, Dr Maxwell (28 June 2007) 120 degrees, Dr Bleasel (11 July 2007) 80 degrees.
38. I also note the video evidence which I found somewhat compelling. She was observed on several occasions lifting her arm to, or above, shoulder height. She smoothed her hair on several occasions without apparent difficulty, although she had said she tries to avoid lifting her left hand at all. She was observed pulling washing from a clothes airer with her arm above shoulder height. While it was suggested that the occasional lifting of her arm viewed were isolated incidents, there appeared to be no jerking or strain in those movements. This is in marked contrast to her evidence that she never lifts the left arm above the shoulder, that she could never lift her left hand above the horizontal at the clothesline and that she could not comb her hair with the left hand.
39. To put the video in context, I note that it was taken about two months after Ms Arachchige was reviewed by Dr McGill on 3 October 2006. She had told him at that time:
… that her left shoulder continued to cause discomfort at night after work but generally did not trouble her while at work during the day. Her left shoulder pain has fluctuated. At times it has felt essentially perfect but if she has performed heavier pushing or pulling activities then she would usually experience some pain in the shoulder.
At that time she had a full range of movement and he considered that she had recovered.
40. Also, at about the time the video was taken, the Applicant saw doctors retained on her behalf. About a month beforehand she had seen Dr Browne (on 6 November 2006). He found her shoulder movement to be painful with active abduction to 90 degrees. When she was reviewed by Dr Wallace in February 2007, about two months afterwards, she complained of weakness of her left arm and stiffness of her left shoulder. She told him of difficulties dressing herself, such as combing her hair. She told him she had problems with housework involving hanging clothes on the line. Similarly, in July 2007 when she saw Dr Bleasel she could only actively abduct to 80 degrees, gentle passive movement caused “a great deal of pain” and she could not reach up. These complaints were at odds with what was observed on the video.
Findings
41. I find that the applicant suffered from a left shoulder injury as a result of the alleged incident occurring in the course of her employment with Australia Post on 21 May 2002 but that the effects of that injury have ceased. It follows that there is no permanent impairment.
Left knee, low back, left ankle and right forearm injury
42. Ms Arachchige gave evidence that on 11 November 2003 she was standing on a ladder to retrieve parcels at the Surry Hills Post Office. The ladder fell and she fell to the floor amid parcels and boxes, landing on her buttocks with her left leg folded in underneath her. She also hit her right hand and her head. She went to the kitchen and sat down and her whole body was shaking. She went to the chemist and bought an icepack which she put on her back, her left knee and her head. After about half an hour’s rest she completed the remaining couple of hours of her shift, although her back was sore and she had a headache.
43. She completed an incident report that day, and also went to her GP, complaining of pain in the low back. The GP’s notes record that she fell onto her buttocks and ended up on her back.
44. She saw Dr Ma on 13 November 2003 who recorded only “soft tissue injury back / right arm / left ankle”. Ms Arachchige said she told him about her knee, although at that time it was not giving her pain. The same day she lodged a claim for compensation, complaining about her left ankle and forehead.
45. She said the knee problem started after a few days but she was mainly concerned about her back at that time. She thought she started seeing doctors about it after a week.
46. On 17 November 2003, Dr Petchell, seeing her in relation to her shoulder a week after the accident, took a history that she fell eight feet from a ladder and landed on her buttocks and outstretched left hand sustaining injuries to her right elbow and twisting to her left ankle. Dr Petchell made no reference to the Applicant’s left knee. She said that she had swelling but didn’t take a lot of notice of it. Consistent with this, a further medical certificate issued by Dr Ma on 20 November 2003 makes no reference to the left knee.
47. There is no reference to injuring her knee in the GP’s notes at all, despite several visits, until 4 December 2003 when she said she had had a sore knee for a few days after walking awkwardly. The doctor queried if the knee was secondary to altered gait due to her back.
48. The Applicant had previously consulted her GP about her knee in June 2002 when there had been swelling behind the knee and tenderness.
49. It was not until 12 December 2003, more than one month after the incident, that Dr Moses, GP, diagnosed the Applicant as suffering from a left knee injury. Dr Moses had arranged for an ultrasound of the left knee to be performed on 10 December 2003 which revealed “slight thickening of the proximal and lateral collateral ligament” and a joint effusion extending into the lateral recess.
50. On 22 December 2003, rheumatologist, Dr Lawford reported that an x-ray of the lumbar spine dated 19 November 2003 suggested that the Applicant sustained a “chip fracture of the dorsal aspect of the tip of sacrum at the sacro-coccygeal junction with minor displacement”.
51. Dr Jones reported, on 10 February 2004, that the Applicant suffered from a possible annular tear of the low back and a possible tear of the lateral meniscus.
52. An MRI scan of the left knee performed on 8 March 2004 confirmed an extensive tear of the lateral meniscus. Dr Petchell performed a partial lateral meniscectomy on about 19 May 2004. Ms Arachchige said that before the operation she had an “uncomfortable feeling” in the knee but after the operation the knee was no better and that it took a year for her to recover from the operation. She said her leg was swollen all the time and she could not “bend and walk” for some time. She went overseas in July 2004 for about a month.
53. On 29 November 2004 Dr Petchell reported that the Applicant had had a poor response to the surgery but, on 8 December 2004, concluded that no further surgical intervention was required.
54. On 21 March 2005, Dr Miniter diagnosed post-traumatic lateral meniscal tear with resultant lateral meniscal resection. He found the knee to be stable with full range of movement. There was no evidence of muscle wasting.
55. In a report dated 26 July 2005, Dr Petchell reported that the Applicant complained of persisting pain in her left knee particularly if the knee is flexed or if she stands for prolonged periods.
56. On 12 October 2005, Dr Wallace took a history from the Applicant. She reported that after the fall from the ladder she had immediate pain in her low back and left knee, a history inconsistent with the contemporaneous medical certificates as commented on above. Dr Wallace diagnosed a musculoligamentous strain of the lumbar spine, a chip fracture to the tip of the sacrum and internal derangement of the left knee with lateral collateral ligament strain and lateral meniscal tear. She said she had persisting weakness in her left leg which caused a limp.
57. Ms Arachchige said throughout 2005 and early 2006 that she continued to have a sore back and sore knee and that sometimes when sitting for 20 minutes to half an hour, she had to keep moving. She said she never had any treatment for her back, although she took Panadol.
58. On 23 February 2006, Dr Maxwell reported that on examination the Applicant walked briskly without a limp and demonstrated a good range of movement of the spine and left knee. He said in his evidence that she had told him she had a bit of back ache which was better when she was walking. He did not consider that she had had any serious problem with her back. He also noted no wasting of calves or quadriceps muscles. He took a history that the Applicant had no difficulty with stairs and that she had to climb stairs regularly when she caught the train, but Ms Arachchige denied telling him that. She said she had told him she lived a 15 minute walk from the station but that the walk to the station caused her pain in the knee. She also denied telling him that she had no difficulty going up slopes and hills and that she had demonstrated a full range of movement. In his evidence Dr Maxwell noted that most people that have difficulty walking avoid walking. He had come to his view, noting the objective signs of no effusion in the knee, and no muscle wasting – which means she was not favouring the knee because of pain, and she was not limping.
59. On 24 March 2006 Dr Petchell reported that the Applicant was at risk of developing arthritis in her left knee but a repeat arthroscopy examination was not required. On 19 June 2006 he reported that the Applicant suffered from feelings of “stiffness, intermittent discomfort and unusual sensations” of the left knee. He advised her that arthritis would “set in” but no further treatment was required.
60. Dr Browne examined Ms Arachchige on 19 September 2006 and found there to be no significant loss of range of movement of her knee and that she had a full range of movement in her spine. Ms Arachchige denied that she had not told Dr Browne about low back pain. Dr Browne said in cross-examination that if somebody sustained a tear to their meniscus traumatically they would not necessarily experience pain instantaneously, although by a week or so he would expect to her to have had some discomfort.
61. Dr McGill re-examined Ms Arachchige on 3 October 2006 at which time she demonstrated normal left knee function and had symmetrical muscle bulk of the thighs. As to her back, she demonstrated a full range of thoracolumbar movement. He noted her complaints of pain walking up hills. Contrary to his earlier impression, he now considered that the incident on 11 November 2003 was unlikely to have caused the meniscus tear, and that while she might have had some muscle soreness at the time, there was no significant injury. In his evidence he said he would have expected symptoms at the time if it was the result of trauma. He agreed the tear was as likely to be a trauma as spontaneous, given the Applicant’s age. He agreed it was quite possible that Ms Arachchige’s painful back was her focus in seeking treatment, although she had told him that she had immediately complained about the knee. He said she mentioned that she had previously used Mobic but she had stopped. She specifically told him she did not take Panadol either.
62. Dr Bleasel who saw the Applicant on 11 July 2007, expressed the view in his evidence that when major pain is elsewhere, the knee problem may not be noticed until it is put into action. He did not consider a delay of a few weeks in reporting knee problems to be of concern. Dr Maxwell, on the other hand, considered that if she had torn a meniscus in the fall, she would have initially complained to the treating doctor about it. He was therefore doubtful that that the fall was an injury severe enough to actually tear the lateral meniscus. He agreed that it was possible for more serious injury to mask the problem. However, she did not report the main symptoms of torn meniscus - catching, locking and clicking. He was firmly of the view that she had no ongoing impairment in that knee.
63. Describing her current symptoms, Ms Arachchige said that she has pain in the left knee “all the time”, especially when walking. After sitting for half an hour she has to bend it. Activities like walking and running give her trouble. Ten minutes of continuous walking causes pain in the knee and produces a sore back. She said she could only walk for 15 minutes, after which time her leg swells. She said it is difficult to climb up stairs as it makes her knee ache. The ache occurs if she was to walk half an hour and her knee will lock. Standing also produces pain, as does sitting for long periods. She said she could do one bend but not repeatedly. She said she was not able to flex and bend her knee normally. She said specifically that she could not crouch or squat down. She said she only wears heels – one and a half inches - if going to parties. Ongoing head and ankle problems were not mentioned.
Discussion of the evidence
64. While there was some variation in her description of the height form which she fell, I accept that Ms Arachchige fell from a ladder on 11 November 2003 while at work. Further, I accept that her reference in the incident report and the claim form to “right” knee to be an error, as there is no medical evidence whatever that there has ever been any issue in relation to her right knee.
65. It was not until early December 2003, more than one month after the incident that she first complained to a doctor of problems with her left knee. I accept that the tear occurred as a result of the fall at work, that her back symptoms may have distracted her from it, and that it may have deteriorated in the weeks following. The evidence of Dr McGill and Dr Maxwell does not persuade me otherwise.
66. As to whether the effects of the injury continue, I note that despite a meniscectomy, Dr Petchell, in his report of 29 November 2004, was somewhat surprised by the Applicant’s continuing complaints of problems, he having considered there to be good prospects of recovery. I also note that by March 2005, Dr Miniter reported the knee to be stable with full range of movement with no evidence of muscle wasting. Subsequent testing mostly produced the same result. Similarly her back showed a full range of movement.
67. From the surveillance report, Ms Arachchige was observed over several hours. The video showed her wearing heeled (but not stiletto) shoes. It appears she wore them for at least five hours – an inappropriate choice, in my view, for a day’s sight-seeing if her knee and/or back were as troublesome as her evidence suggested. Her evidence had been that she only ever wore heels if she was going to a party. She was observed to squat onto her right knee, bending her left. Although partially obscured, it also appeared that she may have been able to squat bending both knees, with neither on the ground. Her evidence was that she was unable to squat at all. She had said she had difficulty with slopes and stairs, yet managed 10 or more stairs without any apparent difficulty and eschewing the use of the handrail. She was observed at one stage to run a few steps and to move quickly across the road, without apparent difficulty. In her claim for permanent impairment, dated 4 November 2005, she had said she was unable to use most forms of public transport, whereas she was observed boarding and alighting a bus without apparent difficulty.
68. I was invited to come to the view that in the 15 minutes that she was not under surveillance she may have been sitting down, recuperating. Even if this were the case, I am not dissuaded from my view, as she did not appear to exhibit fatigue at any point in the video. I was asked to similarly find that her sitting down on a park bench showed a need to rest. To me it appeared she sat down to pose for a photograph. There was no evidence whatsoever of the limp of which she had complained to Dr Wallace in October 2005.
69. Again, to put the video in context, I note she saw Dr McGill about two months beforehand and Dr Browne about a month beforehand. She told Dr McGill that she said she had only occasional pain in the knee and when walking up stairs sometimes experiences pain. She said that after walking for about 15 minutes she feels tired and has some pain in the left knee. She said she had persistent discomfort in the low back. He observed her to be able to squat. He found both knees to be stable, that she had a normal range of movement and that the thighs had equal muscle tone. She had a full range of movement in her back.
70. She told Dr Browne, on 19 September 2006, she experienced pain when negotiating stairs.
71. When she was reviewed by Dr Wallace in February 2007, about two months afterwards, he stated in his report:
She notes persisting pain at her lumbar spine, with no radiation to her lower limbs. The pain is worse with lifting, bending or twisting movements, sitting or stairclimbing [sic], and is relieved by sitting on a cushion or lying down.
She notes intermittent paraesthesia at the posterior aspect of the thighs to the level of the knees bilaterally. She complains of weakness at her lower limbs, particularly on stair climbing. She notes intermittent stiffness at her lumbar spine.
At her left knee she notes intermittent aching pain about the medial aspect of the joint. The pain is worse when wearing high heels or walking for long periods, and is relieved by Glucosamine medication. She notes intermittent swelling at the joint and occasional locking. She complains of occasional giving way, which causes her to fall, and ongoing stiffness at her left knee.
72. On examination by Dr Bleasel in July 2007 limited squatting caused her pain. She complained that the knee was particularly troublesome on slopes and stairs. She told him she could not wear high heels.
73. Ms Arachchige’s conduct in the video is consistent in my view, with the observations of Doctors McGill and Browne at about the same time. Her account to Dr Wallace and Dr Bleasel does not accord with what was observed in the video.
Findings
74. I find that the applicant suffered a left knee or back injury as a result of the incident occurring in the course of her employment on 11 November 2003 but that the effects of that injury have ceased. It follows that there is no permanent impairment.
Head and knees
75. Ms Arachchige said that while walking on the road on her way to work at 12.40pm on 31 March 2006 she tripped and injured her forehead, breaking her glasses and scratching both knees. She said she showed her manager the scratches and she kept working. She first obtained medical treatment on 12 April 2006. She agreed in her evidence that the occurrence was a relatively minor event.
76. When Dr Maxwell examined her on 13 April 2006 he found little abnormality of her back and did not consider her to be suffering a significant work-related injury. In relation to her head, she complained of having suffered some dizziness at the time and that she had continued to suffer headaches. Dr McGill gave evidence that this incident was not mentioned at all when he saw her on 3 October 2006, although he gave her ample opportunity to do so. Dr Browne also had no record of any complaint or event in March 2006 when he saw her on 19 September 2006.
77. She told Dr Bleasel on 11 July 2007 that the fall was because her left knee had given way.
Discussion of the evidence and findings
78. It was conceded that this incident was much less significant than the previous two. In fact, Ms Arachchige made no mention of it when she saw Doctors McGill and Browne. On examination, Dr Maxwell found it to be of little consequence.
79. The medical evidence and the Applicant’s own belief that the occurrence was a relatively minor event, and that she was able to go about her duties and did not seek medical treatment for nearly a fortnight, leads me to the view that the Applicant does not suffer from any head or knee injury sustained in a fall on her way to work on 31 March 2006. As a result she is not entitled to any compensation under the Act in respect of any head or knee injury sustained on that date.
DECISION
80.The Administrative Appeals Tribunal affirms the decisions under review.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ................[sgd]..........................................................
K. Thomson, AssociateDates of Hearing 13, 14 and 15 February 2008
Date of Decision 25 March 2008
Counsel for the Applicant Mr L Grey
Solicitor for the Applicant Carroll & O’Dea Lawyers
Counsel for the Respondent Mr G Elliot
Solicitor for the Respondent Forners Solicitors & Consultants
SCHEDULE 1
I. Section 4 of the Act deals with interpretation and of specific relevance to this matter is the definition of “injury” contained within subsection 4(1) of the Act which states:
“injury” means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being 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), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
II. Section 14 of the Act deals with compensation for injuries and as relevant 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.
III. Section 16 of the Act deals with compensation for medical and other expenses and as relevant states:
16 Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3) For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4) An amount of compensation payable by Comcare under subsection (1) is payable:
(a) to, or in accordance with the directions of, the employee;
(b) if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost--to that other person; or
(c) if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation--to the person to whom that cost is payable.
(5) Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
IV. Section 19 of the Act deals with compensation for injuries resulting in incapacity.
V. Section 24 of the Act deals with compensation for injuries resulting in permanent impairment and states:
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, where Comcare determines that the degree of permanent impairment of the employee is less than 10%, an amount of compensation is not payable to the employee under this section.
Section 27 of the Act deals with compensation for non-economic loss and states as relevant:
27Compensation for non-economic loss
(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
($15,000 x A) + ($15,000 x B)
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
SCHEDULE 2
A1 Report of Dr Wallace dated 26 February 2007
A2 Report of Dr Wallace dated 27 February 2007
A3 Report of Dr Browne dated 6 November 2006
A4 Report of Dr Browne dated 3 May 2007
A5 Report of Dr Bleasel dated 11 July 2007
A6 Report of Dr Bleasel dated 11 September 2007
A7 Report of Dr Bleasel dated 7 February 2008
A8 Report of Dr Baker dated 2 July 2002
R1 Report of Dr McGill dated 1 September 2007
R2 Report of Dr McGill dated 15 December 2007
R3 Report of Dr Maxwell dated 28 June 2007
R4 Report of Dr Maxwell dated 6 September 2007
R5 DVD – surveillance of Applicant, 3, 4 and 5 December 2006
R6 Surveillance Notes from Adroit Business Advisers dated 22 December 2006
R7 Report of Dr McGill (regarding DVD footage) dated 1 September 2007
R8 Report of Dr McGill (regarding DVD footage) dated 6 September 2007
R9 Clinical notes of Dr Bleasel
R10 Clinical notes of Marrickville Medical Centre
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