Caparachin and Australian Postal Corporation
[2005] AATA 937
•24 August 2005
Administrative
Appeals
Tribunal
WRITTEN REASONS FOR ORAL DECISION [2005] AATA 937
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1362
GENERAL ADMINISTRATIVE DIVISION ) Re RELFA CAPARACHIN Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
WRITTEN REASONS FOR ORAL DECISION
Tribunal Senior Member, Mrs Josephine Kelly
Member, Dr M. ThorpeDate 24 August 2005
Date of Written Reasons 27 September 2005
Place Sydney
Decision The reviewable decision made on 22 September 2004 in proceedings N2004/1362 is affirmed.
[sgd] Senior Member, Mrs Josephine Kelly
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – permanent impairment claim –compensation claim for non-economic loss associated with permanent impairment – injury examined was the left wrist only – Applicant’s evidence exaggerated – medical evidence supports that left wrist tendonitis will settle – no difficulty with digital dexterity – minor impairment to left wrist – no permanent impairment – decision affirmed
LEGISLATION
Safety Rehabilitation and Compensation Act 1988 ss 24 and 27
WRITTEN REASONS
1. At the conclusion of the hearing of this matter, the terms of the decision made and the reasons for that decision were stated orally. The Applicant requested the Tribunal to furnish a statement in writing of the reasons for its decision pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act 1975.
2. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service, and edited only to the extent necessary to ensure clarity of expression, without in any way changing the reasons. The edited transcript comprises the reasons for the Tribunal’s decision and is annexed, and furnished to the Applicant and to the Respondent.
WRITTEN REASONS FOR ORAL DECISION
Senior Member, Mrs Josephine Kelly
Member, Dr M. Thorpe
Introduction
1. Mrs Caparachin was born on 13 October 1952 and is now 52 years old. The applicant began working with the Australian Postal Corporation (“Australia Post”) in 1988, as a mail officer and accepted voluntary redundancy in February 2004 . On 17 April 2003 the Corporation accepted liability for what we will refer to as tendonitis of the left wrist, but which is more properly described as "left extensor carpi ulnaris tendonitis" (T58 p169). The date of injury was determined to be 16 March 2003.
Proceedings
2. The matter before us is her claim for compensation for permanent impairment under section 24 and 27 of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) arising from that condition. The reviewable decision was made on 22 September 2004 (T91 p256).
Right Wrist Tendonitis Claim
3. Mrs Caparachin had previously suffered from the same condition in her right wrist from late October 1999 (T6 p35). Liability was accepted by Australia Post but eventually she was able to resume her normal duties and there is no claim before us in relation to that condition. Her claim for permanent impairment in relation to the right wrist, although the subject of the reviewable decision, was not pursued before us.
Left Wrist Tendonitis Claim
4. In December 2002 Mrs Caparachin experienced minor discomfort in her left wrist. She then went on annual leave and the symptoms improved (T57 p167). After she returned to work there was a gradual increase in pain and she lodged an incident report on Sunday, 16 March 2003 (T52 p141). On 23 April 2003 she commenced a rehabilitation program (T60 p171). On 4 December 2003 her rehabilitation program was reviewed by Dr McGill (T79 p220). On 16 December 2003 her rehabilitation case file relating to her left wrist tendonitis was closed (T82 p225).
Mrs Caparachin’s Evidence
5. She gave evidence about her activities and the impact on them of her left wrist condition. Following her redundancy she has worked for Myers as a fragrance consultant from November 2004 until the end of May 2005. That position seemed not to become permanent until late January or early February 2005 and involved working 25 hours a week. She said that she had difficulties when having to display a fragrance bottle in her left hand with her palm facing upwards. She left that job and took up a position in an aged care hostel attributing her leaving to the difficulty holding the fragrance bottle in her left hand. She has no difficulties doing her present job which is merely supervising residents while they shower and walk to meals and so on. There is no lifting, carrying, or holding involved. She undertook a four month course in aged care from January or February to the end of April or May 2005. She does all her own cleaning, gardening, food preparation and personal care. She described difficulties when mopping, holding food when cutting it and combing her hair.
6. Her husband helped in the past but does not now. Only she and her husband live at home. Video evidence (Exhibit R3) was presented of her cutting and handling flowers in her garden and carrying various items in her left hand. Items over her left wrist were also shown. It only established that she suffered no apparent difficulty doing those tasks. She also emphasises her right wrist continues to be a concern every now and then although the claim for that condition was not pursued.
7. We found Mrs Caparachin's evidence somewhat exaggerated and were not persuaded that she left her position with Myers because of her difficulty holding the fragrance bottle given the efforts she had made while working there to undertake the course which apparently enabled her to begin working in the aged care facility where she now works.
Dr McGill’s Evidence
8. Dr McGill is a consultant rheumatologist. On 9 April 2003 (T57) Dr McGill considered Mrs Caparachin's long term prognosis was good and that her left wrist tendonitis:
Will settle as has occurred on her right side.
9. On 4 December 2003 (T79) he reported that:
Since the recent increase in indexing she had not experienced any change in her left wrist symptoms.
10. He noted that she has::
No numbness or paraesthesia. Her left forearm muscles sometimes feel tired but otherwise she does not have any problems in the forearms, elbows, arms or shoulders.
11. And that for both wrists:
There was a full range of wrist movement in all directions. .
12. On 4 February 2005 (Exhibit R2) Dr McGill stated that she reported regarding her left wrist that:
There has been little if any change over the last six to nine months.
13. She also reported to Dr McGill that her wrist problems did not interfere with her 25 hour a week position as a fragrance consultant at Myer which she had been working in for two weeks.
14. The doctor concluded:
Taking into consideration the ultrasound findings, the natural history of tendonitis (which is to slowly resolve over months, sometimes extending into a year or two following removal of aggravating activity) and the examination findings, I think it is likely that the degree of difficulty imposed by her current left wrist symptoms is relatively small.
15. His prognosis was for:
Gradual improvement.
16. And that:
It is likely she will eventually become asymptomatic in both wrists.
17. And:
I think eventually her symptoms will settle and that she will have no impairment.
18. He noted:
With respect to her left wrist symptoms she has no difficulty with digital dexterity nor with self care but does experience discomfort when grasping and holding. I think it is probable that the level of discomfort does not interfere with her ability to do those activities and she today reported that she does all her normal household and work activities currently. I thus interpret from the wording of the Comcare Guide that she has no whole person impairment in accordance with Table 9.4 with respect to the left wrist.
19. He also said that she had no whole person impairment with respect to Table 9.1 of the guide as well. In relation to her non-economic loss questionnaire, Dr McGill reported that:
Her explanatory notes in response to question 1 (T84 p238) were somewhat different from the history she provided today. She today explained that she does all of the food preparation and household tasks. In response to question 2 she acknowledged that she has no or minimal restrictions but then stated that she is unable to drive long distances. I think it is unlikely that her left wrist symptoms would genuinely restrict her driving capacity. In response to question 2.5 I do not think her wrist would interfere with her making floral arrangements. She may experience discomfort when gardening but she today indicated that she continues to garden.
20. In his evidence before us Dr McGill maintained his position that Mrs Caparachin does not have a permanent impairment under the Comcare Guide.
Dr Maxwell’s Evidence
21. Dr Maxwell is an orthopaedic and spinal surgeon. He reported on 19 August 2004 (T88 p252) that Mrs Caparachin could use her limb for self care, grasping and holding and that she did not have difficulty with digital dexterity nor numbness in her fingers. She therefore assessed her as having nil per cent whole person impairment under Table 9.4 of the Comcare Guide.
22. He also considered her responses in the non-economic loss questionnaire to be exaggerated (T88 p253). His opinion was that “extensor carpi-ulnaris tendonitis is a condition which is rarely incapacitating.” Dr Maxwell continued to state that he has never seen a case of this condition lasting for years.
23. In a further report dated 5 November 2004 (Exhibit R1) Dr Maxwell assessed Mrs Caparachin as having 0% whole person impairment pursuant to Table 9.1 of the Comcare Guide for both wrists.
Professor Sambrook’s Evidence
24. We had reports of 16 April 2004 (T83), in which Professor Sambrook found that Mrs Caparachin had a 20 per cent whole person impairment pursuant to Table 9.4 because of difficulties with holding and grasping. On 21 June 2005 (Exhibit A1), he had changed his position from finding a whole person impairment of 20 per cent to finding it was 5 per cent under Table 9.4.
25. He states that:
I would regard her impairment as relatively minor and less than a 10 per cent assessment under Table 9.4. It is more likely a 5 per cent impairment, although I note there is no such specific grading under that Table.
26. There was a file note from the instructing solicitor in the applicant's case which said:
I said Table 9.4 does not define the type of “difficulty” only difficulty.
Professor Sambrook to consider and get back to me.
27. Which the doctor did and he reported on 29 July 2005 which is part of Exhibit A1 in which Professor Sambrook then found a 10 per cent impairment:
Some minor difficulty with digital dexterity on the left side. The criteria for assessing digital dexterity are not specifically defined in the COMCARE Guide. Although I would regard this impairment as relatively minor it is still significant as the 10% grade in Table 9.4 does not define ‘difficulty with digital dexterity’ in any further detail, she would appear to meet that grade on the left side.
28. Specifically she stated that she can use both of her arms for self care, grasping and holding.
Consideration
29. We conclude that while Mrs Caparachin may suffer some discomfort in terms of digital dexterity when doing some activities such as mopping or holding vegetables for cutting. However, her condition is not permanent for the purposes of assessing whole person impairment under the Act. It is likely that it will continue to improve. Accepting that she suffered some difficulty in holding a fragrance bottle in her left hand, she has not done that job since May 2005. She suffers no problems with her left wrist in her present job. Given that change in her activities and accepting that she does the household activities referred to, we are not satisfied that her discomfort is permanent.
30. Mr Richards for Mrs Caparachin contended that the evidence established that she experiences difficulty with grasping and holding with her left wrist such that she satisfies the 20 per cent criteria under Table 9.4 of the Comcare Guide. We do not accept that the difficulties Mrs Caparachin described, given her exaggerations, satisfied the criterion of that Table and we do not consider her condition is permanent.
31. Further, Professor Sambrook's position in his two most recent reports and at the hearing did not support such a finding. We also preferred the evidence of Dr McGill to that of Professor Sambrook whose position varied such that we found his assessment of impairment to be confusing and uncertain with no real justification for increasing the level of impairment from 5 per cent to 10 per cent.
Decision
32. We therefore find that Mrs Caparachin is not entitled to compensation with respect to permanent impairment under sections 24 and 27 of the Act. Accordingly the reviewable decision is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Member, Dr M. Thorpe
Signed: Miss Sacha Keady
AssociateDate/s of Hearing 22 August 2005
Date of Decision 24 August 2005
Date of Written Reasons 27 September 2005
Counsel for the Applicant Mr D. Richards
Solicitor for the Applicant Slater & Gordon Lawyers
Counsel for the Respondent Mr B. Kelly
Solicitor for the Respondent Australian Government Solicitor
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