Chheang and Australian Postal Corporation
[2004] AATA 763
•20 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 763
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/90
GENERAL ADMINISTRATIVE DIVISION ) Re RANI CHHEANG Applicant
And
AUSTRALIAN POSTAL CORPORATION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date20 July 2004
PlaceSydney
Decision The decision under review is affirmed
..............................................
Ms N Bell
Senior Member
REHABILITATION – Safety, Rehabilitation and Compensation Act 1988 - Section 37(1) – Whether Rehabilitation Program Established Is Reasonable
Safety, Rehabilitation and Compensation Act 1988
REASONS FOR DECISION
20 July 2004 Ms N Bell, Senior Member 1. The decision under review is the decision, pursuant to section 37(1) of the Safety, Rehabilitation and Compensation Act 1988 (‘the Act”) dated 9 October 2002 (T59), and affirmed on 20 November 2002, that the Applicant undertake a rehabilitation programme (T68).
2. The issue for the Tribunal to consider is whether the rehabilitation programme determined by the Respondent, to be undertaken by the Applicant, was reasonable and/or suitable.
3. Subsection 37(1) of the Act provides:
“A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in an incapacity for work or an impairment should undertake a rehabilitation program and, where the authority so determines, it may make arrangements with an approved program provider for the provision of a rehabilitation program for the employee.”
4. In making a determination under subsection (1), the Tribunal is to have regard to subsection 37(3), which sets out a number of factors that a rehabilitation authority shall take into consideration, including, the likely psychological effect on the employee of not providing the program (s 37(3)(e)) and the employee’s attitude to the program (s 37(3)(f)).
5. The Applicant commenced work with Australia Post on 3 September 1997. After an injury at work on 7 January 2002, for which liability was accepted by the Respondent (T13). A rehabilitation program was then established on 9 October 2002 (T59), following a workplace assessment conducted on 19 September 2002. In summary, the plan required the Applicant to progress, over a period of 8 weeks, through 7 stages, thus providing a graduated return to full duties. The plan was outlined as follows:
(i) The first two weeks, which had already been completed as at 9 October 2002, involved a range of restrictions including a lifting limitation of four kilograms.
(ii) Stage two imposed a lifting limitation of six kilograms; one week in duration.
(iii) Stage three raised the lifting limitation to eight kilograms and kept the time limitation for parcel sorting to one hour; one week in duration.
(iv) Stage four raised the lifting limitation to 10 kilograms, maintained the limitation at one hour and introduced culling for up to an hour and a half at a time; one week in duration.
(v) Stage five maintained the lifting limitation at 10 kilograms, increased the time to an hour and a half and increased culling to two hours at a time; one week in duration.
(vi) Stage six increased the lifting limitation to 12 kilograms, maintained the time at an hour and a half and increased culling to two and a half hours at a time; one week in duration.
(vii) The final stage, stage seven, was to return to full duties.
6. The Applicant stated that on 7 January 2002, at the Australia Post premises in Clyde, on the morning before her 12.45pm tea break, the Applicant was lifting a heavy bag onto a conveyor belt and felt a sharp pain in her left shoulder, left arm and upper back. The applicant said that, in her opinion, the bag she had lifted off the conveyor belt was between 16 and 32 kilograms and she was required to lift it from hip height and carry it for about one and a half metres to the unit loading device (“ULD”). It was the Applicant’s evidence that she reported the incident to her supervisor, Mr Jimmy Choy, immediately. Mr Choy filled out a form for the Applicant (T3, pg8) and arranged for her to see Dr Overmeire, Occupational Physician. Mr Ford, the Applicant’s shift manager, took her to Dr Overmeire’s place of practice. The Applicant stated that she was attended to shortly after 1pm. Dr Overmeire gave the Applicant a note to the effect that she should not lift more than three kilos and gave her one day off work. Mr Ford then drove the Applicant home. It was the Applicant’s evidence that she saw a physiotherapist by the name of Matthew the following day, then again, two days later.
7. The Applicant stated that because she experienced an increase in pain she telephoned Dr Overmeire on 9 January and asked to see him again but he refused to see her and told her to return to work. She went to see Dr Tan, General Practitioner, who gave her two days off work and told her to rest, undergo physiotherapy and take some tablets.
8. It was the Applicant’s evidence that she returned to work on 11 January 2002, but only worked five hours per day and restricted her lifting to two kilograms. She said that by that time she had also developed pain in her neck and the pain in her arm extended down to her fingers. She continued working with these restrictions for about one month. After that time the Applicant began working six hours per day but was still experiencing pain. She said there had been some small improvement in her level of pain from January 2002, to September 2002.
9. The Applicant said that Dr Tan referred her to Dr Lew Pierides, Specialist in Occupational Medicine. She saw Dr Pierides during March 2002, and was prescribed “Endep” and later “Neurontin”. The Applicant added that she continued to receive physiotherapy.
10. After September 2002, Dr Tan certified the applicant fit for full-time work, that being, seven hours and 21 minutes per day.
11. The Applicant said that on 9 October 2002 she was asked to work in another area opening mail bags. She was required to lift the bags and recalled that they weighed between seven and 16 kilos. The Applicant stated that she had to lift some bags on her own but when the bags were heavy she was to ask her workmate Alice to help her. She said that after doing this work for a while her pain increased and she told her supervisor, Ms Seif, that she was experiencing pain and needed to see her doctor and take some medication. The Applicant was required to fill out a form and then left work and saw Dr Tan. She returned to work on 10 October 2002, with a recommendation from Dr Tan that she lift only up to four kilograms and not to undertake repetitive work. The Applicant said that on occasions since that time, when she has attempted to lift more than four kilograms, she has experienced increased pain.
12. The Applicant said she had never been asked by any of the Australia Post doctors to undertake a pain management course but would be prepared to do so. She said she was, and remains, unable to progress to stage two of the Respondent’s rehabilitation program because she is unable to lift items more than four kilograms in weight.
13. The Applicant said she is no longer able to exercise; vacuum; garden; wash dishes; iron; hang clothes on the line; do the shopping; or cook as she used to. The applicant said that whereas, before her injury she would have intimate relations with her husband a few times per week, they now have intimate relations only once per month due to the pain in her shoulder.
14. In cross examination, the Applicant said she had never had a problem with her neck or shoulder before the incident on 7 January 2002, and confirmed that was what she had indicated on the claim for rehabilitation and compensation form she completed on the day of her injury. She later said that she had experienced pain in her left shoulder but that it was not like the sharp pain she felt on 7 January 2002. The Applicant also agreed that she had seen a doctor about pain in her shoulder before and taken time off work for that pain. The Applicant maintained, however, that she had never experienced neck pain before.
15. Later in cross examination, the Applicant insisted that she had never seen her general practitioner, Dr Tan, about pain in her left shoulder and in her neck. When a number of dates of consultations with Dr Tan were put to the Applicant, she capitulated and agreed she had consulted him about neck and shoulder pain.
16. The Applicant was then asked whether she had advised Dr McGill, Consultant Rheumatologist, and Professor Sambrook, Rheumatologist, of the pain she had experienced in her neck and left shoulder, prior to the incident on 7 January 2002. The Applicant answered that she had indeed advised them of such pain, however, in her later evidence stated that she advised the doctors that she had experienced pain previously, just not to the same degree as the pain she experienced on 7 January 2002.
17. The Applicant confirmed that until July 2002, she had a weight restriction of two kilograms and that after that she had a weight restriction of four kilograms. She also agreed that during September 2002, she was having discussions with the rehabilitation provider about increasing her weight restrictions to six kilograms.
18. The Applicant said that upon arriving at work on 9 October, she was advised by her supervisor, Ms Seif, that she had to lift up to 16 kilograms. She said she told Ms Seif that her restriction was four kilograms but Ms Seif said she should ask her workmate Alice to assist her if she needed help.
19. The Applicant was shown the notes made by the rehabilitation service provider to the effect that the applicant did not wish to proceed with a pain management program (T33, p70). The applicant denied that this was true. She said that when she attended the Respondent’s pain management program she saw a physiotherapist twenty times and a psychologist once. The Applicant agreed however, in answer to a question from the Tribunal, that she thought the program did not help her because she continued to experience pain. In particular, the Applicant thought the Psychologist did not help her. She then agreed that she told the rehabilitation officer that she did not want to see the psychologist again.
20. The Applicant agreed that the Respondent’s rehabilitation program required her to begin lifting weights of up to six kilograms from 9 October 2002. She said that on that day she attempted to lift a heavy bag, but felt pain in her shoulder and upper back.
21. The Applicant said that during stage one of the program, in which she had a weight restriction of four kilograms, she experienced some pain and complained about it on various occasions to her supervisor. She said that sometimes the work she was doing was changed to accommodate her and sometimes it was not.
22. Ms Nida Chheang, the Applicant’s daughter, provided evidence to the Tribunal. She said her mother had never complained of shoulder pain before January 2002, and did all household chores with no particular limitations. She said that after 7 January 2002 her mother complained of pain in her shoulder and became unable to undertake many of the tasks around the house, tasks which are now performed for her by her family.
23. Jennifer Chheang, another daughter of the Applicant, also provided a statement to the Tribunal and was not required for cross examination. Her evidence was in similar terms to that of her sister.
24. Professor Sambrook’s evidence was by way of three reports dated 21 March 2003 (Exhibit A1); 26 May 2003 (Exhibit A2); and 18 August 2003 (Exhibit A3). In the first of these reports Professor Sambrook diagnosed “Non specific, chronic left shoulder pain with neuropathic features” (Exhibit A1, pg6). His observations, upon physical examination of the Applicant were as follows:
“Physical examination revealed a normal posture and body stance. She undressed her shirt with her right upper limb predominantly, sparing the use of the left upper limb. There was no difference in colour between the upper limbs and no swelling or stiffness of the joints. Shoulder abduction on the left side was limited 110 degrees by pain and rotary movements in the shoulder were restricted by pain. There was tenderness to palpitation below the AC joint over the trapezius muscles on the left side. Cervical spine movements were restricted with forward flexion to 20 degrees (normal range 90 degrees), extension 10 degrees (normal range 30 degrees) and rotation to 20 degrees. Thoracolumbar movements were also a little restricted with lateral flexion to the right about 20 degrees compared to about 15 degrees on the left. Reflexes were symmetrical and equal in the upper and lower limbs. As with most people in a medicolegal situation, she tended to move her left upper limb somewhat less during observation than when unobserved, but there still appeared to be a restricted range of movement in the shoulder.” (Exhibit A1, pg4)
25. It was Professor Sambrook’s recommendation that the Applicant take part in the chronic pain program, at the Royal North Shore Hospital, to enhance her rehabilitation.
26. In response to a finding by Dr Neil McGill of abnormal illness behaviour, Professor Sambrook noted, in his report of 26 May 2003, that it is not unusual in a medico-legal situation for a person to move more freely when unobserved. He also said that people with chronic pain are often concerned about excessive or forced movement and may hold their limb in a restricted way when performing movements by themselves. Professor Sambrook added that it is not unusual for a person to be wary of a doctor acting for the other side and that none of these things indicate grossly false behaviour. As to his earlier report of neuropathic features, Professor Sambrook referred to the physiotherapist report and mentioned paraesthesia and adverse neural tension (T39).
27. In his report of 18 August 2003, Professor Sambrook said he had examined the Rehabilitation Program dated 20 September 2002. He considered the duties and restrictions for the two week, stage one period as appropriate, and noted the planned increase in weights and duties for subsequent stages. Professor Sambrook said the program as a plan is satisfactory but considered that in individual patients, each stage may be longer than one week and if at any time symptoms return, the weight restriction should not be exceeded until the patient improves. He described the program as suitable in principle but considered that each subsequent stage should be longer than one week in duration and that regular assessment should be performed before any progression to each higher stage is made.
28. In oral evidence to the Tribunal, Professor Sambrook said that in an uncomplicated patient, with no neuropathic pain, the type of return to work program offered to the applicant in this case works reasonably well with a large number of patients.
29. In cross examination, Professor Sambrook said that the Applicant had not told him that she had suffered pain in her left shoulder previously. He agreed that there is some controversy about the proposition of neuropathic pain.
30. Professor Sambrook confirmed that he examined the Applicant for “allodynia” and found none. He did find “secondary hyperalgesia” (tenderness to palpitation below the AC joint and over the trapezius muscles) and some “parasthaesia”. He agreed he had not carried out a neural tension test in his examination of the Applicant and that neural tension tests are commonly cited as an indicator of neuropathic pain. However, he said their interpretation is arguable in the upper limbs.
31. Professor Sambrook agreed with the proposition that the two alternative interpretations of the Applicant’s difficulty with the first, very light stage of the rehabilitation plan were that she suffered neuropathic pain or that she was not co-operating with the plan.
32. Dr McGill’s report of 26 February 2003 concluded that the Applicant exhibited “definite obvious abnormal behaviour not explicable on the basis of organic disease” (Exhibit R1). He found the following on examination:
“Muscle development in the upper limbs was normal and symmetrical. Circumference of each arm, 15cm proximal to the olecranon, was 27 cm. Colour, temperature and sweating in both hands were equal. Her fingers were initially a little cool but not abnormally so.
There was no swelling of any upper limb joint. The shoulder girdles and back looked normal. During the inspection of her back she tilted her head to the right.
She performed a full range of active movement of all right upper limb joints without difficulty. On the left side she performed slow movements of the hand, wrist and elbow. She failed to flex the elbow through a full range and offered a range of movement between 20˚ and 90˚. Active movements of the left shoulder were performed to a very restricted range. She performed 30˚ of abduction and forward elevation and indicated an inability to place her left hand behind her back.
Passive movements of the right upper limb were full. She indicated discomfort during passive movements of the left wrist and elbow (while maintaining the shoulder in neutral position). Passive movements of those joints were full although she somewhat resisted movements of the left elbow. She resisted left shoulder movements from the moment of initiation of movement. The resistance was of a “lead pipe” type. Thus the pattern of resisted movement and reported discomfort was not in keeping with impingement nor with adhesive capsulitis (frozen shoulder).
Although during the assessment of her back, she tilted her head to the right, when asked to demonstrate neck movements she could only offer very limited movements in all directions. (Exhibit R1, pg2)
When asked to demonstrate spinal rotation she was able to rotate fully to the right but performed very restricted rotation to the left which she stated was because of left shoulder pain.
Despite repeatedly reporting that she had no low back symptom, when asked to demonstrate forward flexion she maintained the lumbar spine in the normal erect posture position and offered a little flexion of both hips such that her fingertips were at the proximal extent of her knees.
She walked on both forefeet and walked on her heels and performed a squat.
During the assessment of the upper limb reflexes she tended to contract her muscles prior to the tendon hammer striking my finger (which then transmitted the impulse through to the underlying tendon). The reflexes were normal. She reported light touch sensation accurately (using cotton wool with her eyes closed) although stated that it felt less in the left upper limb.
She reported tenderness across the upper back and of the neck generally, worse on the left.”
33. Dr McGill described the Applicant’s behaviour as “grossly false” and found no evidence of any physical disorder (Exhibit R1, pg3). He concluded that the Applicant was fit to perform the physical duties of a parcel sorter without restriction.
34. In his oral evidence to the Tribunal, Dr McGill said the Applicant did not tell him about any previous problems with her left shoulder, notwithstanding that he asked her about previous or other medical problems. He said he found no evidence of any neuropathic disorder, for example, “reflex sympathetic dystrophy”. Rather, Dr McGill found marked inconsistencies in her behaviour during examination. He said that people who experience pain due to a non-physical disease such as “fibromyalgia”, a common problem in clinical practice, still present in a consistent manner and do not tend to exhibit an inability to do a thing at one time and then an ability to do it at another, or to resist movement that is not physical.
35. Dr McGill said that some objective indicators of neuropathic pain disorder would include evidence of disuse of a limb; swelling; persistent colour change; sympathetic overactivity indicated by increased level of sweat on the affected side; widespread and consistent tenderness. Dr McGill said he tested for these things and for consistency in their presentation. As to the Applicant’s inconsistency, he said that in examination she failed to flex her elbow to a full range, yet at other times the joint functioned normally. She also demonstrated a very restricted range of movement of her left shoulder in examination, however, moved it more freely at other times.
36. It was Dr McGill’s evidence that he and professor Sambrook are in considerable agreement in the matter in that they agree the Applicant’s condition is not explained by physical disease and that there is inconsistency on examination. He noted that their disagreement is as to whether that inconsistency can be attributed to the medico legal situation. Dr McGill considered that the majority of his medico legal consultations do not present with that level of inconsistency.
37. Dr McGill said that the work programme developed by the Respondent was within the Applicant’s capacity and a reasonable program for her to undertake.
38. Dr Tan’s clinical notes refer to complaints of left shoulder pain by the Applicant in 1999, and throughout 2000, and in 2001.
39. Ms Seif, Mail Processing Controller at the Australia Post facility at Clyde, provided oral evidence to the Tribunal. She said she was the supervisor on the shift worked by the applicant on 9 October 2002. Ms Seif stated that she was aware that the applicant was on a rehabilitation program at the time and the restrictions she was working under. She asked the applicant to work, opening mail bags, with another person on the “export” side of the workplace. Ms Seif said the Applicant agreed to do so and that she told the Applicant she was not to touch the bags, but simply to watch the conveyor belt and the ULD’s until they were full, then call for someone to move the ULD. It was Ms Seif’s evidence that she then went off to a meeting but was called to the office at around 12.30pm where she found the Applicant, who told Ms Seif she was not feeling well and needed to go home to get her tablets. When asked whether she had lifted anything, the Applicant said she had not. The Applicant returned to work the next day. Ms Seif denied that the Applicant had been required to lift bags weighing up to 16 kilograms or any lifting at all.
40. There emerged, during the Hearing, some confusion concerning the identity of the person named “Alice” or “Ai” who worked with the Applicant on 9 October 2002. Further enquiries were made by the Respondent and finally, the person in question was identified to be Ms Alice Truong, who provided evidence to the Tribunal. Ms Truong’s evidence was that, on the day on which she worked with the Applicant neither she nor the applicant had been required to do any lifting. Rather, they were required to take parcels out of bags, or to tip the bags over to empty out the parcels if the bags were light.
41. Mr Ian Ford, Acting Shift Manager at the Applicant’s workplace, also provided evidence to the Tribunal. The effect of Mr Ford’s evidence was that in the area in which the Applicant was working in January 2002, the bags were differentiated on the basis of weight and bulkiness and are run at different times. He said that smaller items, weighing up to about seven kilograms, would generally take up to 80 or 85 per cent of the shift. Mr Ford said the average weight of bulky items would be about 12 kilograms but occasionally an item will weigh up to 30 kilograms. He said the Occupational Health and safety rule is that anything over 16 kilograms must be lifted by two people. It was also Mr Ford’s evidence that staff know when bulky items are about to be dealt with.
was the rehabilitation plan devised by the respondent reasonable and/or
42. The Applicant’s contention is that the Respondent’s rehabilitation plan is not reasonable or suitable, given the Applicant’s condition and the nature and substance of the plan.
43. I must therefore assess the Applicant’s condition, that being her ability to perform the duties set out in the rehabilitation plan, along with the progression provided for within the plan. The bulk of the evidence before the Tribunal goes to whether the Applicant suffers from any impairment arising from the incident on 7 January 2002.
44. Dr McGill and Professor Sambrook are at odds on this question, with Professor Sambrook opining that the Applicant suffers from a neuropathic pain condition and Dr McGill concluding that the Applicant has no such condition and is simply embellishing. Both agree, however, that there were discrepancies and inconsistencies in her presentation and that her condition is not explained by physical disease.
45. Associated with this question is the Applicant’s credibility. Her evidence as to the lasting effects of her injury was supported by the evidence of her daughters. However, the reliability of her evidence was undermined by a number of inconsistencies including her failure to report to both Dr McGill and Professor Sambrook a fairly lengthy history of previous left shoulder pain, as documented in the clinical notes of her general practitioner, Dr Tan. The Applicant’s credibility was not assisted by her later insistence, contrary to both doctors’ evidence, that she had told them about previous left shoulder pain when they each examined her.
46. The Applicant’s evidence that she was required to, and did, lift mailbags of up to 16 kilograms on 7 January and 9 October 2002 was contradicted by the evidence of Ms Seif, Mr Ford and Ms Truong. I note that it was not established that Ms Truong was the person working with the Applicant on 9 October 2002. Nevertheless, Ms Truong’s evidence of the kind of work, and in particular, the extent of the lifting performed in the Applicant’s job, was relevant to the question of the type and extent of the injury sustained by the Applicant and the type of work she was required by the Respondent to perform.
47. I am also mindful that the day of the alleged second incident, being 9 October 2002, was the first day of a stage of the rehabilitation plan that involved an increase in duties which had previously been resisted by the Applicant.
48. While these factors do not cause me to reject the Applicant’s evidence in its entirety, they lend some support to the conclusion by Dr McGill that the Applicant was inconsistent in her presentation to him and involved herself in some embellishment.
49. I am more persuaded by the evidence of Dr McGill, to the effect that the Applicant does not suffer from a non-physical or non-organic pain inducing condition. I consider that the range of the examination conducted by Dr McGill was more extensive and included a greater number of objective tests of the Applicant’s affected body parts. I consider that the opinion of Professor Sambrook, that the Applicant suffers from neuropathic pain, is comparatively unsupported by the examination undertaken by him and I am not persuaded by his suggestion that the inconsistency of presentation within the examination he undertook, and the inconsistency with her presentation in the examination conducted by Dr McGill, can be explained by the medico-legal context in which she was being examined.
50. I am also mindful of the opinion of Dr McGill that the rehabilitation plan is a reasonable one in the circumstances of the Applicant as he finds them and the opinion of Professor Sambrook that, in principle, the plan is suitable.
51. It follows that the rehabilitation plan is suitable and reasonable.
Decision
52. The decision under review is affirmed.
I certify that the 52 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: Ms Linda Blue...................................................
AssociateDates of Hearing 29 August 2003 and 2 April 2004
Date of Decision 20 July 2004
Counsel for the Applicant Mr D Timmins
Solicitor for the Applicant Ms Rachael James
Counsel for the Respondent Mr Grant Elliot
Solicitor for the Respondent Mr Graham Jones
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