Baroudi and Optus Administration Pty Ltd

[2008] AATA 530

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 530

ADMINISTRATIVE APPEALS TRIBUNAL      )

)       No. 2007/4627

GENERAL ADMINISTRATIVE DIVISION	)
Re	MAHA BAROUDI

Applicant

And OPTUS ADMINISTRATION PTY LTD

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Dr I Alexander, Member

Date of Hearing                   11 June 2008

Ex Tempore Decision        13 June 2008

Place  Sydney

Decision The Tribunal affirms the decision under review.
The oral reasons for decision have been transcribed by Auscript and are furnished to the Applicant and the Respondent as they are the reasons for the Tribunal’s decision.

….........[SGD]..............

Ms G Ettinger

Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – whether applicant suffered injury within the meaning of the Act – whether injury resulted in incapacity – decision under review affirmed.

LEGISLATION

Safety Rehabilitation and Compensation Act 1988 – ss  4, 14,  53

REASONS FOR DECISION

13 June 2008 Ms G Ettinger, Senior Member  
Dr I Alexander, Member

background

1.      We note Mrs Maha Baroudi has a claim before the Tribunal in regard to the effects on her right shoulder as a result of a fall, she says, occurred at work in either January or February or perhaps March 2007.  Mrs Baroudi was employed as an OPS assistant at Optus, for a period of six months, from 20 November 2006 to 28 April 2007.  The Respondent in these proceedings, her then employer, Optus Administration Pty Limited, has denied liability.  The matter was reconsidered, and the primary decision affirmed.  Mrs Baroudi has exercised her rights to appeal to this tribunal.  She appeared unrepresented.  Optus was represented by Mr Brendan Kelly, instructed by Ms Natalie Fisher.

legislative context

2.      Now, the legislative context.  In order to succeed, the Tribunal must be satisfied that pursuant to the Safety Rehabilitation and Compensation Act 1988, (the Act), Mrs Baroudi sustained an injury to her right shoulder, pursuant to the definition in section 4 of the Act, which means she must have sustained an injury, other than a disease, that is a physical or mental injury, arising out of, or in the course of her employment with Optus.  Section 14 provides for the employer to be liable to pay compensation in accordance with the Act, in respect of an injury suffered by an employee, if the injury results in incapacity for work or impairment.

circumstances surrounding the fall

3.      Now, the circumstances surrounding the fall.  Mrs Baroudi told us that she did not recall exactly when she fell off her chair at her workstation in 2007.  She could not recall the exact date and stated in her oral evidence, it was either January or February 2007.  In her written statement at PT5/13, Mrs Baroudi had written January or March 2007, which she later corrected to be January or February.

4.      We are satisfied she has no recollection of the actual day or even month, except that she told us it was soon after the woman in the next workstation, Ms TA, returned from holidays.  This was not commented upon by Ms TA when interviewed by the investigator, who was retained to investigate the matter, and whose report was before us in the T-documents as T12.  Mrs Baroudi told us that on the day of the fall, the office was very quiet, because everyone except she and another employee, Ms TA, whose workstation was one up from hers, were in a meeting.

5.      She stated that she had a disagreement with Ms TA in the morning, and felt quite angry.  The Applicant said that later she wanted to move her chair into her desk, and held onto the back while she tried to slide the chair in.  She says, the castors may have been dirty, there was no plastic mat on the carpet to assist with sliding, and that her weight, then 99 kilos, may have affected the movement of the castors.  Her evidence was that the chair did not slide as it should have.  She said that in trying to move the chair, she virtually pulled herself away off the seat, perhaps to one side, and onto the floor, virtually under her desk.

6.      Although Mrs Baroudi had written in her claim for compensation at T5, that the chair from which she fell was faulty, and that the wheels did not roll properly, she did not allege in her oral evidence that the chair was faulty. 

7.      Mrs Baroudi said that she fell first onto her bottom, but did not strike the desk or the floor with her shoulders.  However, she claims that she injured her right shoulder in the fall.  Mrs Baroudi said she lay on the floor for a minute or so, and then called out to Ms TA, who did not respond or assist.  So, after a few minutes, she got up herself, with difficulty, after getting on to her knees.

8.      The investigator interviewed Ms TA and made a statement which is at page 38 of the T-documents, in which he reports Ms TA as saying she had no knowledge of Mrs Baroudi having injured her shoulder in February 2007, or at any time during her employment at Optus.  The investigator reported Ms TA as saying, she was convinced that if Mrs Baroudi had suffered a fall or an injury, she, only being metres away from the Applicant at her workstation, would have been well aware of the fall.  Ms TA was also reported as saying to the investigator that she rejected any notion that she would have ignored Mrs Baroudi’s call for assistance. 

9.      Ms TA told the investigator that Mrs Baroudi had never, at any time, mentioned a fall from her chair or injury to her shoulder, or problem with chairs. 

10.     Mrs Baroudi said that she experienced pain in her right shoulder, but did not report it to her team leader at the time, as she did not think it was, “that bad.” 

11.     Mrs Baroudi said, that after a couple of months, she mentioned the incident to Mr Randall, a manager, who told her to make a report. 

12.     Mrs Baroudi’s evidence was, that on the day she attempted to make the report, the computer system was down, and although she tried a couple of times, she was not able to upload any report.  She then did not attempt anything further until a couple of months after she had left Optus on 28 April 2007.  Another reason Mrs Baroudi gave for not wanting to make a report was that she was hoping Optus would extend her employment, or give her a permanent position after the six month period, during which she was doing another person’s job, had ended.  She said that she was worried making a complaint might impact upon her chances to obtain the position.

13.     We find that Mrs Baroudi attended sessions fortnightly on ethics, occupational health and safety and other topics of importance to employees.  She agreed that she knew she needed to fill in an incident report if she injured herself.  She had previously done so in a report of 25 March 2007, which is exhibit R4 before the Tribunal, and was in relation to a finger, a relatively minor injury.  She told us that she was also familiar with the operation of the Optus intranet.  Mr Randall, a senior manager, Mr Carden, manager customer assurance operations, who was Mrs Baroudi’s direct manager and Ms TA, all spoke to the investigator who recorded their experiences of Mrs Baroudi often complaining:  her complaints being in regard to, amongst other things, the air-conditioning and the refrigerator.

14.     Mrs Baroudi told us that the chairs in the office were unsatisfactory and she swapped them herself, from time-to-time, without complaining to anyone about them.  None of the three abovementioned officers told the investigator that they had ever heard Mrs Baroudi complain about the chairs in the office.

15.     In support of the submission that the incident of falling off the chair did not occur at all, Mr Kelly indicated, through photographs of the investigator’s report, (the original as Exhibit R3) and T12 in the T-documents, that the workstation and space around it were quite small.  Mrs Baroudi agreed that the space in which she claimed she had fallen, was very restricted but maintained that she did fall, as she variously described.

16.     The Respondent raised the following points, which the Tribunal accepts:  

·Doubts that the incident (in January, February or March 2007) occurred at all due to Mrs Baroudi’s inconsistent evidence regarding how the alleged fall occurred.

·Secondly, Mrs Baroudi’s complete lack of recall of the date she claimed she fell.

·Thirdly, the fact there was no corroboration of Mrs Baroudi’s evidence.

·Fourthly, the fact that at consultations with Dr Sellathurai, her General Practitioner, on 5 January, 10 February and 10 March 2007, Mrs Baroudi did not mention any pain in her right shoulder.

·The first mention of shoulder pain, recorded by the doctor, was on 30 May 2007, followed by his assistance with a compensation claim, after a consultation on 28 June 2007, where she first mentioned a fall at work.

·Fifthly, the fact that her claim for compensation was not received until 20 July 2007, T5.

17.     We note also that pursuant to section 53 of the Act, that the Act does not apply in relation to an injury to an employee, unless notice in writing, is given to the relevant authority, as soon as practicable after the employee becomes aware of the injury.  We noted from Mrs Baroudi’s evidence that she was aware of the application of this section of the Act, and consider that reporting a fall several months it caused an alleged injury, would not, unless particular circumstances prevailed, meet the requirements of section 53 of the Act.

18.     We accept also that Mr Kelly raised legitimate concerns, regarding whether the applicant suffered an accident at work at all, as described, in early 2007.  We also found Mrs Baroudi to be a poor historian.  In the alternative, if we do accept that she suffered an accident, we need to consider the medical evidence and her reports regarding her right shoulder, and we move to do that.

mrs baroudi’s rght shoulder

19.     Mrs Baroudi’s right shoulder.  Mrs Baroudi’s evidence was that, when she fell, her right shoulder hurt, but that after a few minutes on the floor, the pain settled.  She said she had fallen before, and not reported such incidents.  She had no time off work as a result of the incident, upon which she relies, to apply for compensation for a work-related injury.  Mrs Baroudi told us that in the weeks following the incident, she noticed that when she reached up for files, she suffered a sharp stabbing pain and she dealt with it by taking analgesics.

20.     She said, that after a few weeks she told Mr Randall, who instructed her to report it.  She said that after trying to upload a report of the incident, and being unable to do so because of a system fault, she forgot about it, and thought maybe the pain would just go away.  However, it did not, and became worse.  She could not sleep, could not move her arm or hang out clothes, and bought a dishwasher to deal with dishes.

21.     The report of the investigator, which was before us, indicates Mr Randall recalled Mrs Baroudi telling him she had fallen off her work chair, without indicating a date or specific injury, and Mrs Baroudi reassuring him by saying, “It’s nothing, I’m just telling you about it.” 

22.     Mrs Baroudi said she consulted Dr Sellathurai, who on 30 May 2007 recorded that she had fallen a few months previously, with no mention of the location of the fall.  She said he referred her for an ultrasound and to a specialist, but that she could not afford to go to the specialist.  However, she said that later the pain became worse, and in either September or November an orthopaedic surgeon, Dr Clark, carried out an operation.

23.     Mrs Baroudi said that for a couple of weeks after the surgery, she could not move her arm, and even three months later she still had problems, whereas, presently she is doing well and has now found a new job.  We note for the record and from Dr Clark’s report that the surgery was actually carried out on 23 October 2007.  We also noted from Dr Sellathurai’s notes tendered at the hearing, that consultations on 5 January 2007, 10 February 2007 and 10 March 2007, do not reflect Mrs Baroudi reported any right shoulder pain.

24.     It was not until 30 May that he recorded that she had fallen onto her right shoulder a few months previously.  There was no mention of the workplace, on that day, although, as noted above, Dr Sellathurai, assisted with Mrs Baroudi’s compensation claim on 28 June 2007, and on that day, certified her fit for her pre-injury duties.  We noted that the ultrasound at T3, which was carried out on 31 May 2007 and the MRI of 29 August 2007, indicated that Mrs Baroudi has a full thickness tear of the supraspinatus.  We are satisfied from her evidence that it was that result which has caused the Applicant to associate her right shoulder pain with her alleged fall at work.

25.     The occasion of the ultrasound investigation indicated there was distension of the sub deltoid bursa, which we noted Mrs Baroudi interpreted as being swelling in her right upper extremity.  She had not known about that before.  We discerned from her oral evidence that this concerned her somewhat. 

26.     We reviewed the medical evidence in relation to Mrs Baroudi’s claim, and in that connection, had before us, a report of Dr Potter, a rheumatologist, dated 8 August 2007.  He stated that he obtained no clear history of injury at work from Mrs Baroudi.  He stated that he had no evidence of physical injury occurring at work.  The history of the fall indicated an impact to her buttock, and there was no on-going abnormality.  He opined that a pain syndrome had evolved in broad areas of the right upper quadrant, without clinical anatomical or structural cause.  He considered Mrs Baroudi was fit for her usual duties.

27.     Dr Clark, who performed an acromioplasty with rotator cuff repair on 23 October 2007, was cautious when relating the tear to Mrs Baroudi’s workplace.  He said, at least in two places in his reports, that it was felt that the rotator cuff  tear could have occurred in the manner described, when the Applicant fell off her chair at work.  We are mindful, “could” is not the standard to which the tribunal must be satisfied, if we are to associate any effects of Mrs Baroudi’s alleged fall, with her workplace.

28.     Dr Dalton, who is a consultant in rehabilitation medicine, examined Mrs Baroudi in December 2007, and reported on 12 February 2008.  He recorded Mrs Baroudi had a problem with her right shoulder, about 10 years previously, which she did not deny.  From the history given by the Applicant, he stated that Mrs Baroudi injured her right shoulder, as a result of what sounds like a hyper-extension or hyper-abduction injury, at work.  He added that subsequent investigations four or five months later, revealed the presence of a full thickness tear of the supraspinatus, which was confirmed in a subsequent MRI.

29.     His view was that her initial symptoms, the presentation of her movement, and her level of disability in the period of time following the injury, was not consistent with her having sustained an acute tear of the rotator cuff, as a result of the incident at work, which she described.  He added that if she had sustained an acute tear of the rotator cuff in a fall, then she would have experienced significant pain, and almost certainly, some loss of function.  The fact that she was able to continue working, and did not report shoulder pain to her general practitioner until May 2007, would support the view that whilst she may have aggravated the underlying rotator cuff tear, it is highly unlikely that she suffered an acute tear at that time.

30.     We noted that publications from Peer Review journals, with regard to rotator cuff disorders, filed as part of the T-documents, indicate that rotator cuff tears occur in the ageing population.  Tears are frequently degenerate in nature and may or may not result from injury.  The presence of a full thickness tear, does not per se indicate there has been a traumatic incident or cause.

31.     We are thus satisfied, from the medical evidence of Doctors Potter, Clark and Dalton, and the history of the progress of Mrs Baroudi’s complaint, that even if Mrs Baroudi fell off her chair at work, she did not suffer an acute supraspinatus tear at that time, because she did not find it necessary to seek immediate medical assistance.  Neither did she report any injury or incident, as soon as practicable, after she became aware of it, as required, pursuant to the Act.  Mrs Baroudi also did not find it necessary to have any time off work in connection with any such incident.

32.     We are accordingly not satisfied that Mrs Baroudi sustained any injury to her right shoulder, arising out of, or in the course of, her employment with Optus, and that such incident caused incapacity for work or impairment, if indeed the incident occurred.  Liability, pursuant to section 14 of the Act, cannot be accepted for Mrs Baroudi’s claimed incident at work in 2007. 

conclusion

33.     So in conclusion, and in summary, we have noted Mrs Baroudi’s version of events relating to a fall at work in either January, February or March 2007, noting her evidence, and noting that  the only people in the office were Ms TA and herself.  Mrs Baroudi told us that Ms TA was at her workstation not more than two metres away, but did not come to assist, and was reported in the investigator’s report not to have heard or seen Mrs Baroudi fall.

34.     We are satisfied, on the basis of the history of the matter, as given by Mrs Baroudi, and the other evidence before us, including the fact that Mrs Baroudi did not make a report until 28 June 2007, to her doctor and to her employer about her alleged fall at work in either January, February or March 2007, that she did not sustain a compensable injury at work, in early 2007.  She did not have any time off work, and did not attend the doctor until some months after the time she claims the fall occurred.

35.     Indeed, Mrs Baroudi’s evidence was that any pain she suffered at the time was minor, and that she thought it would go away.  If Mrs Baroudi did indeed fall off her chair, then she had a duty, pursuant to the Act, to report the incident.  We are satisfied she knew how to do that, because she had done it before, and she had been to the regular classes and sessions at work which instructed in OH&S.  We were not satisfied that Mrs Baroudi is an accurate historian, noting that Dr Potter also commented similarly.  We have serious doubts whether Mrs Baroudi suffered a fall as described.

36.     However, for the sake of completeness and in fairness to the parties, we considered the medical evidence and decided, as we must do, whether liability can be accepted.  We accept that Mrs Baroudi may have suffered a supraspinatus tear at some time, which has been repaired surgically.  We noted Dr Clark’s hesitation in attributing the accident and the tear to the workplace.  We also rely on the reports of Dr Potter and Dr Dalton, Dr Dalton opining that, if the Applicant had sustained an acute tear of the rotator cuff in the fall, as she claimed, then she would have experienced significant pain, and almost certainly some loss of function.  We have no evidence that this occurred. 

decision

37.     The Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of  Senior Member Ms G Ettinger.

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

Date/s of Hearing  11 June 2008
Date of Decision  13 June 2008
Applicant  Maha Baroudi
Counsel for the Respondent     Mr Brendan Kelly