Ching and Australia Postal Corporation
[2007] AATA 1089
•27 February 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1089
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/114
) No N2006/187
) No N2006/818
GENERAL ADMINISTRATIVE DIVISION ) Re XIAO MEI CHING Applicant
And
AUSTRALIA POSTAL CORPORATION
Respondent
DECISION
Tribunal Professor I. A Shearer, Senior Member and Dr. J. Campbell, Member Date27 February 2007
PlaceSydney
Decision The Tribunal affirms the decision under review.
………........[sgd].....................
I.A Shearer,
Senior Member
CATCHWORDS
SOCIAL SECURITY – rehabilitation – return to work program – no ‘reasonable excuse’ – issue as to suspension of compensation – workplace assessment – tendonitis – chronic pain syndrome – self-reported pain – bilateral shoulder pain – adjustment disorder with anxiety – obsessional personality – pain threshold – consideration of evidence and applicable law – decision under review is affirmed
Safety, Rehabilitation and Compensation Act 1988 – sections 14, 16, 19, 21, 24, 27, 37 and 67.
Ching v Australia Post [2004] AATA 842
Lees v Comcare (1999) 56 ALD 84
Telstra Corporation Ltd. v Hannaford [2006] FCAFC 87
REASONS FOR DECISION
27 February 2007 Professor I. A Shearer, Senior Member and Dr J. Campbell, Member DECISION UNDER REVIEW
1. Three reviewable decisions of Australia Post relating to the Applicant are before the Tribunal in the present proceedings:
(a)The decision dated 7 December 2005 affirming a determination dated 29 September 2005 made under section 37(1) of the Safety Rehabilitation and Compensation Act 1988 (“the Act”) directing a rehabilitation and return to work program;
(b)The notification dated 22 December 2005 suspending the Applicant’s entitlement to compensation under section 37(7) of the Act;
(c)The decision dated 10 April 2006 affirming the determination dated 1 December 2005 that Australia Post was not liable to pay compensation to the Applicant for absences from her employment for the periods 28-31 October 2005, and 22-27 November 2005.
BACKGROUND
2. It is to be noted that decision (b) above was found to be a reviewable decision by direction of Senior Member Kelly of this Tribunal dated 22 June 2006.
ISSUES BEFORE THE TRIBUNAL
3. The issues before the Tribunal in the present proceedings are:
(a)Whether the Applicant refused or failed to undertake the rehabilitation and return to work program as directed on 29 September 2005 and affirmed on 7 December 2005;
(b)Whether the Applicant had a reasonable excuse for refusing or failing to undertake that rehabilitation program;
(c)Whether the Applicant’s rights to compensation are suspended, pursuant to section 37(7) of the Act until she begins to undertake the rehabilitation program as previously directed.
FACTUAL BACKGROUND
4. The Applicant, Mrs. Xiao Mei Ching, was born in 1961. She commenced work with Australia Post in November 1988 as a Mail Officer. For the next 11 years her main duties consisted of sorting and indexing mail.
5. In November 1999 a new Spectrum 10 sorting machine was introduced at Australia Post. Mrs Ching carried out work involving this machine.
6. Mrs Ching first reported pain in an incident report dated 31 August 2001. She complained of “muscular pain, left arm sore” while working at a coding position on a Spectrum 10 postal sorting machine.
7. Mrs Ching consulted a Dr Lau, a general medical practitioner, who diagnosed upper limb myalgia. As a result, a Workplace Assessment made by Australia Post directed that Mrs Ching be placed on restricted duties from 1/09/01 to 28/09/01 with no keyboard work (coding) and no lifting over 7 kg. It was also directed that medical approval be required before Mrs Ching recommenced indexing or coding duties.
8. On 9 October 2001 Mrs Ching lodged a claim for compensation in respect of pain and soreness in her left arm. This claim was rejected by Australia Post on 23 October 2001 on the ground that there was no clear explanation to support the contention that there had been a work-caused injury. A Reconsideration Officer affirmed that determination by a decision dated 30 November 2001.
9. On 7 December 2001 Australia Post accepted liability under section 16 of the Act to pay compensation in respect of medical expenses in relation to “the condition from which you suffer” (i.e. the bilateral shoulder and left upper arm injury of 31 August 2001).
10. There followed a number of complaints by Mrs Ching of left arm and wrist pain, and right shoulder pain, during 2002 and 2003, which it is unnecessary for the purposes of the present application to detail. It is necessary only to note that Australia Post:
(a)denied liability for the left wrist pain on 17 May 2002;
(b)determined on 29 May 2002 that Mrs Ching was no longer entitled to payment of compensation for her shoulder condition on and from that date;
(c)affirmed on 24 July 2002 the decision of 29 May 2002 that her employment no longer materially contributed to any left and right shoulder medical condition complained of by Mrs Ching;
(d)decided on 10 April 2003 that there was no entitlement to a permanent impairment payment; and
(e)affirmed on 8 August 2003 that any right and left shoulder and upper limb condition did not arise from the repetitive nature of work duties with Australia Post.
11. All of the above determinations and decisions were reviewed by Member S. Webb of the AAT in Ching v. Australia Post [2004] AATA 842. In that application:
(a)Two of the reviewable decisions were set aside, and Australia Post was determined to be liable to pay compensation in accordance with the Act in relation to Mrs Ching’s bilateral shoulder and left upper limb injuries sustained on or about 31 August 2001. It was also determined that that liability did not cease on 29 May 2002.
(b)A third reviewable decision was also set aside; it was determined that Australia Post was liable to pay compensation in accordance with the Act in relation to Mrs Ching’s left forearm, wrist and hand injury sustained on or about 15 February 2002.
(c)The fourth reviewable decision, relating to Mrs Ching’s left arm and shoulders, was varied to the extent that Mrs Ching’s conditions were not yet found to be permanent and that an assessment of the degree of impairment would be premature; thus she was not entitled to compensation for permanent impairment at that time.
(d)An order for costs against Australia Post was made pursuant to section 67(8) of the Act. Member Webb’s decision was handed down on 12 August 2004.
12. Following the decision of the AAT, a rehabilitation program was devised by the Work Environment Branch of Australia Post in which Mrs Ching was directed to engage in accordance with a letter dated 31 August 2004. The associated Return to Work Plan followed the recommendations of Dr I. Gotis-Graham, Mrs Ching’s treating specialist, and specified restricted duties, including avoidance of repetitive movements, no sorting, no use of coding machines, and to work at her own pace.
13. For the next twelve months there were several medical reports regarding the possibility of Mrs Ching returning to full-time duties. The examining doctors were not in agreement regarding the cause of Mrs Ching’s pain or on the future prospects of her progressing to unrestricted work activities. In the meantime work restrictions remained in place, yet Mrs Ching still complained of pain.
14. A new Return to Work program was issued on 8 March 2005 and amended by the reconsideration officer on 25 May 2005 and notified to Mrs Ching on 1 June 2005.
15. On 18 July 2005 Mrs Ching lodged a compensation claim for “left and right upper limbs pain (including shoulders, arms, elbows, wrists and hands)” arising from the injuries sustained on 31 August 2001 and 15 February 2002.
16. By letter dated 22 July 2005 Mrs Ching was notified of the suspension of her entitlement to compensation under section 37(7) of the Act, and of her right to institute or continue any proceedings under the Act in relation to compensation, “until such time as you begin to undertake the rehabilitation program which was the subject of the determination dated 8 March 2005 which was varied in accordance with the reconsideration decision dated 25 May 2005…”
17. During the next two months, deferrals of implementation of the Return to Work program were granted in view of medical reports and Mrs Ching’s continuing complaints of pain. On 29 September 2005, however, a delegate decided that the Return to Work program would commence on 4 October 2005 and conclude on 6 January 2006.
18. Mrs Ching was absent from work from 28 October to 1 November, and again from 22 to 27 November 2005, with medical certificates from her physician Dr. Masters certifying “exacerbation of bilateral upper limb pain and repetitive strain disorder”. On 1 December 2005 the delegate found no liability for incapacity payments in respect of those work absences.
19. On 3 November 2005 Mrs Ching lodged a further claim for compensation for injury “to both shoulders, arms, elbows, forearms, wrists and hand pain” said to arise since incidents on 31 August 2001 and 15 February 2002.
20. On 7 December 2005 a reconsideration officer affirmed the decision of 29 September 2005 regarding the Return to Work program. Mrs Ching was warned that her continuing refusal to commence the directed Return to Work program immediately would result in a further suspension of her compensation rights.
21. However, by letter dated 13 December 2005 Australia Post deferred the date of commencement of the proposed upgrading program until 14 December 2005 “to allow you fair opportunity to participate in your program.”
22. Mrs Ching then lodged medical certificates from Dr Masters certifying her unfitness for work for the periods 15-19 December and 21-28 December 2005.
23. Notwithstanding these medical certificates, a formal notification of suspension of entitlement to compensation was made in a letter dated 22 December 2005 from the Manager, Rehabilitation, of the Work Environment Branch of Australia Post. That letter stated, in part:
“I am satisfied that you have refused to undertake the rehabilitation program dated 29 September 2005, which was the subject of a determination issued to you under section 37(1) of the Act, without reasonable excuse. The reasons for suspension of your entitlement to compensation are as follows:
“You have failed to participate in your return to work program. The weight of specialist opinion supports your ability to be able to return to work and perform restricted duties….I have received feedback from your Rehabilitation Consultant , Ms Alexandra Papoulidis, that you have failed to partake in your rehabilitation program citing increased upper limb pain to your supervisor on a number of occasions. However, a review of the medical evidence in relation to your fitness for work has indicated strong support that your rehabilitation program, as outlined in the determination of 29 September 2005, is appropriate. It is also noted that this program was also the subject of a reviewable decision, which found your Return to Work program to be suitable and supported your ability to participate in the program.”
24. On 30 December 2005 Mrs Ching submitted a medical certificate from Dr Masters that she was unfit for work from 30 December 2005 to 31 January 2006. In response to this Australia Post, by letter dated 9 January 2006, advised Mrs Ching that it was unable to issue a determination regarding the medical certificates because her rights to compensation had been suspended under the Act. On 18 January 2006 Australia Post further advised Mrs Ching that as a result of her refusal to perform the range of duties specified in the Return to Work program “you will only be paid for the time you are at work and performing suitable duties in line with your Return to Work program.”
25. During the period January to April 2006, medical and other assessments relating to Mrs Ching continued to be lodged with or received by Australia Post. Dr Masters was of the opinion that Mrs Ching’s condition was not improving. In fact “it is deteriorating and it will not get better while she continues mail sorting….I felt that a month off work would give her some respite from her upper limb pains. Because she is not improving in spite of recent light duties no attempts should be made to upgrade her duties. Mrs Ching should really seriously consider alternative employment or be transferred to another department within Australia Post.” (Report dated 13 January 2006).
26. Dr Gotis-Graham set out work restrictions which in his opinion should apply from 1 February 2006 for two months. In his opinion Mrs Ching was not fit to upgrade the work program outlined on 14 December 2005 and she should continue with the work program outlined on 3 August 2005 (Stage 1). (Report dated 19 January 2006). Dr Gotis-Graham reaffirmed his opinion in a later report dated 30 March 2006.
27. By contrast, Dr David Maxwell, orthopaedic surgeon, noted on examination that Mrs Ching had a full range of movement of both wrists and no evidence of carpal tunnel syndrome. Mrs Ching complained of widespread pain in both arms but “I could find no convincing evidence that she has subacromial bursitis, supraspinatus tendonitis, medical or lateral epicondylitis, extensor tenosynovitis of either arm…..She therefore has a perception of pain without in my opinion any organic basis for the pain.” Dr Maxwell concluded under both Table 9.1 and Table 9.4 there was NIL whole person impairment (Report dated 2 February 2006).
28. In a supplementary report dated 20 February 2006 Dr Maxwell stated that, based on his examination of Mrs Ching on 2 February, “I did not consider that she was currently unfit for duties. I consider that it would be most unlikely that she would have been totally unfit for duty for the six weeks prior to seeing me.”
29. At the request of Mrs Ching’s solicitors, Zsuzsa Barta (a clinical psychologist) furnished a report dated 10 February 2006. Ms Barta had examined Mrs Ching on 11 occasions between March and November 2005 on a referral from Dr Gotis-Graham. Ms Barta’s report stated, in part:
“Mrs Ching’s treatment was complicated by the ongoing aggravation she experienced at work. She stated that …her superiors did not or only partially complied with medical opinion in the design and performance of her daily work responsibilities. She often complained about the apparent disregard for her physical limitations and pain response. The latter invariably intensified when repetitive tasks were included in her job. Her stress levels were continuously higher than normal as her work environment created perpetual disagreement, confrontation and misunderstanding. Her obsessional personality style and her increasing involvement with the industrial relations process added to the anxieties she felt about her future.
30. Ms Barta assessed Mrs Ching as suffering “from intermittent pain that increases with inappropriate activity and stress. The ongoing psychosocial stressors intensify the pain response and expand the range of symptoms, creating a psychological disorder. Mrs Ching’s stress response is negatively affecting her work capacity, her family relations, and her cognitive capacity. The psychological impairment assessed on the Degree of Permanent Impairment Scale is 16. I recommend long term psychological care, vocational assessment and counselling to direct her towards suitable job options, and assistance if further training is required.”
31. On 10 April 2006 the delegate of Australia Post issued a decision affirming the determination dated 1 December 2005 (relating to no liability for incapacity payments in respect of work absences in October and November 2005).
THE EVIDENCE AT THE HEARING
32. Mrs Ching gave evidence before the Tribunal. She stated that she was married with two young children. She had been working for Australia Post for 16 years. Her work used to consist of keyboard work, checking the red light, and trouble shooting on the letter line, and suffered frequent pain from 2001 onwards. In August 2005 she was moved to the small letter team. She found this work more repetitive, and the quantities larger. The small letter trays required more finger movements. She was experiencing frequent pain. She found the rehabilitation program too difficult in that (a) there was less ability to move about, (b) the higher rate of circulation of trays did not allow her to work at her own pace, and (c) more finger movements were required. She stated that she wanted to execute the directed Return to Work program but she experienced too much pain. It was a dull pain, in the shoulder and elbow. She showed her employers Dr Gotis-Graham’s reports but they refused to change the program.
33. Mrs Ching stated that she returned to work in February 2006 and attempted to follow the directed Return to Work program. But she could not and reverted to the earlier work program approved by Dr Gotis-Graham. Finger movements continue to cause pain in the shoulder. She stated that she is presently working 2 ½ to 3 hours a day. ”They let me work at my own pace”, she says.
34. In cross-examination Mrs Ching was shown a video taken of a work station at Australia Post similar to hers. This was taken on 12 September 2005. The video showed an Australia Post employee carrying out work of the kind which, it was suggested by counsel, was the same as that directed in Mrs Ching’s Return to Work program. Mrs Ching vehemently denied that what was shown in the video accurately reflected her duties. “My job didn’t look like what is shown in the video.” Regarding some sorting boxes arranged on a slope, “It was not like that: I had to push large numbers of letters with my wrist while sorting with the fingers of the other hand.”
35. A considerable volume of medical evidence was contained in the T-documents, and certain of those medical witnesses were called to give evidence orally.
36. The sole medical expert called on behalf of the Applicant was Dr Ian Gotis-Graham, FRACP, rheumatologist and consultant physician. His present diagnosis of Mrs Ching was of (a) tendonitis, and (b) “chronic pain syndrome”. As to the first, he stated that there was no reliable objective test of its presence, such as by imaging or by MRI scan. The second condition might be described alternatively as “a lowering of the threshold of pain”. The cause of both was the repetitive nature of the work Mrs Ching had carried out for many years. He had not attended the work demonstration on 12 September 2005 (paragraph 33 above), although invited to observe it, because he did not think it worthwhile to do so: “her condition was chronic”. Dr Gotis-Graham had hoped up to 2005 that Mrs Ching’s condition would improve, but he had since concluded otherwise. In his opinion it was “very unlikely” that she would ever be able to return to any of her former duties. He was confident in his diagnosis since he had seen her on many occasions over many years. In conclusion, he stated that in his opinion Mrs Ching was genuine; she was not malingering.
37. The Respondent called Dr Maxine Walden, FRANZCP, consultant psychiatrist. She saw Mrs Ching for a lengthy consultation but on only one occasion. She had been able also to review the previous medical reports. She concluded that Mrs Ching had no psychiatric disorder. There was no diagnosis in terms of a clinical anxiety or depressive disorder. There was no clear psychiatric reason for any inability to work. She was not qualified to comment on any possible physical cause.
38. The Respondent called Dr. Robin Chase, occupational physician. He had furnished a number of written reports. He had also attended the work inspection held on 12 September 2005. His diagnosis was “self-reported pain”, which he distinguished from “chronic pain syndrome”. The latter was a label he rejected, and which he had stopped using years ago. There were no clinical signs of pain. Mrs Ching was anxious, angry and resistant to performing upgraded duties. She did not present psychiatric symptoms.
39. The Respondent also called Dr David Maxwell, FRCS, FRACS, FAOA, orthopaedic and spinal surgeon and medico-legal consultant. He had examined Mrs Ching on a number of occasions. He found no diagnosable disorder. He did not consider that any work restrictions were indicated. He did not regard “chronic pain syndrome” as a diagnosis. However, he did not consider that Mrs Ching was trying to fabricate her symptoms; rather that she placed an over-emphasis on pain.
EVALUATION OF THE EVIDENCE
40. We have carefully assessed all the evidence before us and have critically appraised the observations made on the clinical material in evidence. We make the following findings:
(a)Mrs Ching has consistently detailed the workplace events which led to her complaints of pain from 2001 over the period since then and to many consultants.
(b)By 2002 Mrs Ching complained of pain in various parts of both upper limbs, and believed that such pain was caused by repetitive workplace activities. Mrs Ching believed that continuance with such workplace activities was aggravating the pain. Further, Mrs Ching believed that her workplace supervisors did not believe she was experiencing pain and that they did not follow restrictions recommended by her treating practitioners with regard to suitable work activities.
(c)In 2002, despite a variety of diagnostic labels, attending and consulting physicians agreed that Mrs Ching had bilateral shoulder pain symptomatology, which had either been caused, or contributed to, by activities at work (Drs Masters, Gotis-Graham, McGill, Ellis, and Chase), with a difference in opinion among them as to whether work-related symptomatology was continuing.
(d)During 2002 and 2003 some clinicians concluded that Mrs Ching was a poor reporter of her current conditions, with answers to questions resulting in reporting of everything other than her symptoms (Dr McGill), or answers that were tangential, incomplete or inappropriate (Dr Whittaker). The same clinicians noted a lack of co-operation in examination of shoulder movement.
(e)By the end of 2003 there were two distinct lines of clinical opinion as to the clinical circumstances of Mrs Ching, namely:
(i)Mrs Ching’s original complaints were ongoing and were being aggravated by her workplace activities. Such activities included Mrs Ching experiencing difficulties with her workplace supervisors, who, she believed, did not believe she was experiencing pain, and further did not follow the workplace restrictions recommended by her attending clinicians. These difficulties were causing Mrs Ching anxiety and frustration. The evidence for such complaints was a restricted range of movement in both shoulder joints and widespread tenderness to palpation of the upper limbs. If attention were paid to the workplace difficulties, Mrs Ching would be able to participate in a graded return to work program and eventually to her pre-injury duties. Recommendations as to the appropriate restrictions on her workplace activities were important in the interim to prevent aggravation (Drs Masters, Gotis-Graham, and Ellis).
(ii)The effects of Mrs Ching’s original impairment had ceased, there being no ongoing physical disorder, no continuing orthopaedic condition, and no ongoing relationship between her work duties and any minor pathology that might exist. She was not able to manage her usual work for reasons that were not obvious, and work duties did not continue to contribute to her ongoing symptoms.. The evidence to support such opinions was Mrs Ching’s perceived inability to answer questions appropriately, her lack of cooperation in the physical examinations of her shoulders, and the presence of a near full range of movements in all the joints. Mrs Ching was considered fit to undertake a grade return to work program to full normal duties, albeit with some restrictions as to repetitive use of limbs above shoulder level (Drs McGill, Bray, Whittaker, and Chase).
(f)During 2004 Dr Gotis-Graham observed that Mrs Ching’s symptomatology was being made worse by sorting and gripping the mail at work. Dr Chase concluded that Mrs Ching had bilateral pain of unknown or uncertain cause.
(g)During 2005 Mrs Ching underwent a program of cognitive behavioural therapy with Ms Zsuzsa Barta. She complained to Ms Barta that her rehabilitation program was being made more difficult by inconsistencies in her light duties program and the reluctance of some supervisors to follow medical advice. Mrs Ching’s diagnostic categories were extended to include adjustment disorder with anxiety and an obsessional personality (Ms Barta), and bilateral extensor tendonitis at the level of the wrist (Dr Gotis-Graham).
(h)It is noted that the two distinct lines of clinical opinion remained in focus, with Drs Masters, Gotis-Graham and Ellis observing no significant changes in Mrs Ching’s pain symptomatology and findings on examination; that Mrs Ching’s problems were chronic and permanent; that Mrs Ching’s rehabilitation programs had not resulted in any significant changes in her condition; and that Mrs Ching should continue under such work restrictions as had been nominated.
(i)In 2006, in both his written report and oral evidence, Dr Gotis-Graham detailed his opinion that Mrs Ching was suffering from tendonitis in multiple muscle groups in both upper limbs. However, there was no objective way of testing for such a clinical diagnosis; such a diagnosis was dependent on a clinical history which detailed an initial injury, management of this injury in a way that exacerbated the problem, continuing complaints of pain, and a lowering of Mrs Ching’s threshold for pain. While Dr Gotis-Graham has no objection to Mrs Ching’s attempting a rehabilitation program, he is not optimistic as to her response to such a program in the light of her earlier attempts. It is his belief that Mrs Ching’s condition is chronic and that she should undertake work activities only in accordance with his previous work restriction recommendations.
(j)Dr Walden, a psychiatrist, found Mrs Ching to be extremely pain-focused, and fixated on her interactions with her supervisors, a fixation consistent with an obsessional personality style. Dr Walden noted inconsistency in Mrs Ching’s claims in relation to circumstances both at work and at home that aggravate the pain, and the complaint of the global nature of the pain. Dr Walden considered that Mrs Ching was not suffering from any psychiatric disorder and that there was no psychiatric reason for placing any restrictions on her workplace activities or in relation to any incapacity for work. In so stating, Dr Walden considered and excluded the following DSM IV diagnostic categories: anxiety disorder, depressive disorder, and adjustment disorder (did not meet the diagnostic criteria), pain disorder (psychological factors of an unconscious nature causing or maintaining the experience of pain not evident in background life history), factitious disorder (conscious exaggeration of fabrication of symptoms to elicit care and attention). Dr Walden found, when considering the issue of malingering (deliberate feigning or exaggeration of symptoms for secondary gain), that it was a difficult issue to assess, despite the issues of financial gain and avoidance of work duties being possibly in play.
(k)Dr Chase, who participated in two work place assessments in 2005, continued in 2006 to postulate that Mrs Ching was suffering from self-reported bilateral upper limb pain, that Mrs Ching should not be subject to any work restrictions, and that she should be able to return to her full pre-injury duties as a mail officer.
(l)Dr Maxwell, an orthopaedic surgeon, was unable to find a logical basis for Mrs Ching’s pain; she had a perception of pain for which there was no organic or pathological cause. Dr Maxwell believed that her perceived disability could not be reduced by any further treatment, that she required no work restrictions, and that she was fit to participate in the nominated return to work program.
CONCLUSIONS ON THE APPLICANT’S MEDICAL CONDITIONS
41. We recognise that Mrs Ching has particular beliefs and perceptions. These include her perception of pain in the areas she describes, her beliefs as to cause and continuing aggravation of pain, her belief that her work supervisors do not believe she suffers from pain, and that they fail to implement workplace restrictions recommended by her attending physicians. We consider that Mrs Ching is fixated by such beliefs, a finding consistent with the obsessional personality observed by Ms Barta (clinical psychologist) and Dr Walden (psychiatrist). That such beliefs are genuinely held by Mrs Ching is not in question, but the fact that she does hold such beliefs does not necessarily make such beliefs a valid representation of the workplace duties she is requested to undertake or the interpersonal interactions attendant on those duties.
42. We acknowledge that her treating physicians (Drs Masters and Gotis-Graham) and Dr Ellis accept what Mrs Ching has told them, and have formed clinical opinions as to diagnosis and cause; they have formulated treatment regimes in response to their assessment of that information, their examination of Mrs Ching, and their review of appropriate investigations. We observe that in late 2001 and early 2002 there was general agreement between the attending physicians and Drs McGill and Chase, that some bilateral shoulder problem did exist and that work activities may have caused and/or contributed to it.
43. We observe that by mid 2002 the issue of complaint of pain widespread in both upper limbs was evident, with Mrs Ching nominating her belief about the beliefs and actions of supervisors in her workplace causing her stress and anxiety and increasing pain symptomatology in the upper limbs. We also observe that Mrs Ching continues to present such beliefs to the present time, for much of the hearing was given to Mrs Ching addressing such beliefs, in particular her beliefs that work duties actually undertaken were different in form and substance from those nominated by her employer.
44. Critical analysis of all the clinical material before us confirms the existence of the two streams of clinical opinion outlined above in paragraph 40 (e)(i) and (ii) of these Reasons. Each grouping of clinical opinions recommended work restrictions, and considered Mrs Ching to be capable of undertaking rehabilitation programs subject to those restrictions.
45. In the light of all the material before us we conclude that Mrs Ching is physically and psychologically competent to undertake the designated rehabilitation program, and that she does not have a reasonable excuse for not undertaking such a program.
46. In so finding we are mindful that the following matters assisted us in distinguishing the two streams of clinical opinion:
(a)Mrs Ching, when providing evidence before the Tribunal on both video coding and the checking job on the BCS machine, while voluble, was inaccurate and tended to create misunderstanding. Further, the manner in which she responded to questions reinforced statements made by a number of the medical witnesses that she had particular beliefs and was inflexible in adhering to those beliefs.
(b)While both Dr Masters and Dr Gotis-Graham were treating practitioners, who considered and acted upon Mrs Ching’s reported symptoms and beliefs, neither participated in the workplace assessments of their patient, when their attendance was invited in 2005, the last assessment being associated with the September 2005 rehabilitation program. Failure to be involved in such an assessment program inhibits the non-participant in assessing first hand information from the workplace in the light of what Mrs Ching believed to be the situation.
(c)Dr Ellis was specific in diagnosing Mrs Ching’s condition as a repetitive strain syndrome, this being a variant of Regional Pain Syndrome or Reflex Sympathetic Dystrophy. We accept the opinions of Drs Chase, Whittaker and Maxwell that the latter two clinical diagnoses are separate and distinct, as opposed to being a variant of repetitive strain syndrome.
(d)In the light of difficulties with Mrs Ching’s history narration (Drs McGill, Chase and Whittaker), difficulties in cooperation with should examinations (Drs McGill and Whittaker), and the absence of any restriction other than of a minor range of movements in all upper limb joints over a period of nearly four years (Drs McGill, Bray, Whittaker, Chase and Maxwell) it is exceedingly difficult to accept a diagnosis of tendonitis involving multiple tendon groups of the upper limb without any other evidence of physical or pathological change (e.g. muscle wasting).
THE APPLICABLE LAW
47. The Safety, Rehabilitation and Compensation Act 1988 (“the Act”) provides the applicable law. Section 14 provides for compensation for injuries suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 19 governs the measure of compensation payable to an employee who is incapacitated for work as a result of an injury. Section 16 provides for compensation in respect of the cost of medical treatment obtained in relation to an injury.
48. Australia Post had accepted liability to pay compensation under section 16 from 7 December 2001 but terminated that liability as and from 29 May 2002. That acceptance necessarily implied recognition of the existence of a work-related injury under section 14.
49. The decision of Member Mr S. Webb of this Tribunal, dated 12 August 2004, in proceedings brought by Mrs Ching [2004] AATA 842, noted that:
“The original determination accepting liability for Ms Ching’s claimed condition did not specify the nature of that condition. It appears that, subsequently, Australia Post took the view that the condition was a bilateral shoulder condition. However, the original claim made by Ms Ching was in relation to her left arm. It was only in subsequent medical evidence that involvement of the left shoulder and subsequently the right shoulder emerged. I am satisfied that the acceptance of liability was in relation to the suite of symptoms of pain in her left arm and shoulders that were attributable to the incident that was the subject of her original complaint. I note that the original determination did not make explicit reference to an acceptance of liability under s. 14 of the Act. The determination explicitly referred to an acceptance of liability under s.16 of the Act in relation to the payment of reasonable medical expenses and denied liability for payment of compensation pursuant to s.19 of the Act in relation to incapacity. Careful consideration of that determination persuades me to conclude that the acceptance of employment causation and the subsequent consideration of entitlement for payment of compensation under specific provisions of the Act (sections 16 and 19) implies acceptance of liability under s.14 of the Act. That interpretation is consistent with the interpretation adopted by the Australia Post delegate on subsequent review. I am satisfied that the determination to accept liability was correctly made and complied with the requirements of a determination under s.14 of the Act (see Lees v. Comcare (1999) 56 ALD 84.) That being the case, the reviewable decision that purported to cease Australia Post’s liability for the previously accepted injury cannot stand….Australia Post’s liability for the previously accepted injury is ongoing. The question whether compensation is payable in any amount under relevant sections of the Act is a matter that must be determined on the merits, or otherwise, of any such claim made by Ms Ching at that time….I find that the impairment of Ms Ching’s left arm and shoulders is not yet permanent. In order to so conclude it is necessary to have regard to the matters set out at s.24(2) of the Act. Considering all the evidence, I am persuaded that Ms Ching’s compensable conditions are amenable to improvement.”
50. It was urged upon the Tribunal in the present proceedings by Mr Johnson that it was not bound by any earlier findings of the Tribunal. Reference was made in this respect to Telstra Corporation Ltd v. Hannaford [2006] FCAFC 87, a decision of the Full Court of the Federal Court. That court stated that:
“…the AAT is empowered to make subsequent findings of fact in relation to the circumstances the subject of decision-making under ss 16 and 19 of the SRC Act, and also under ss 21 and 27 of the SRC Act, where the determination of the first instance decision-maker …made under the auspices of s 14 of the SRC Act remains in operation in the sense that it has not been the subject of any inconsistent outcome in the context of a subsequent review by the AAT. The statutory scheme allows for progressive and evolving decision-making giving effect to the provisions of ongoing review of relief or entitlements in the nature of course of workers compensation, being review which allows for adjustment or change in the light of events or circumstances which may subsequently happen. The statutory scheme hence reflects a flexible scope for adjustment by way of decisions in the nature of awards to be made subsequently to the determination of s 14 liability, whether that determination be made in isolation, or in the context of decision-making concerning consequential relief that may be required in the light of evolving circumstances. It is therefore a scheme which allows progressively for ongoing relief, and is thus not comparable of course with the process of curial resolution of the traditional common law entitlement of an injured employee for damages as a consequence of the negligent conduct of an employer. The opening words of s 14(1) ‘[s]ubject to this Part…’ are consistent with the flexibility inherent in the ensuing codification of the various facets of compensation envisaged.” (per Conti J at para.57).”
51. The present proceedings relate principally to Mrs Ching’s refusal or failure to carry out the rehabilitation programs as directed in her case. The Act in section 37 relevantly provides:
“37. (1) A rehabilitation authority may make a determination that an employee who has suffered an injury resulting in incapacity for work or an impairment should undertake a rehabilitation program…
…
(7) Where an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program provided for the employee under this section, the employee’s rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the employee begins to undertake the program.
(8) Where an employee’s right to compensation is suspended under subsection (7), compensation is not payable in respect of the period of the suspension.”
CONCLUSIONS
52. The main issue for the Tribunal is whether Mrs Ching had a reasonable excuse for not undertaking the rehabilitation program directed in her case. It finds that she did not in fact undertake that program. On the one hand Mrs Ching was able to produce medical certificates from Dr Gotis-Graham that she was unfit to undertake the program unless earlier restrictions specified by him were observed. On the other hand, the overwhelming weight of medical evidence in the case was that there was no inability of Mrs Ching to undertake the rehabilitation and return to work program as directed. Dr Gotis-Graham conceded that there was no objective evidence of the cause of Mrs Ching’s reported pain. In the end, for the Tribunal, it is a case of reported pain in the absence of any objectively demonstrable or other known pathology. Nor is there any evidence of a psychological cause.
53. Mr Baran submitted that there were two significant medical diagnoses: (a) tendonitis (Dr Gotis-Graham) and (b) “chronic pain syndrome”. He conceded that there was debate within the medical profession about the validity of such a diagnosis as “chronic pain syndrome”. It is mentioned in DSM-IV as Pain Disorder, which may be described as chronic if it persists for 6 months or more. In his submission, Mrs Ching was not malingering or inventing her pain; she had no financial incentive to concoct such a claim.
54. Mr Johnson for the Respondent did not shy away from submitting that “the lady is dishonest. She is manipulative and she has her own agenda. The suggestion by my friend [Mr Baran for the Applicant] that the key to this case is that she needs to be moved to other work, to administrative work, gives a pretty good clue as to the underlying motivation for all this.”
55. While it is not necessary for the Tribunal to go so far as Mr Johnson in his characterisation of Mrs Ching, it is nevertheless impossible for it to uphold the claim of a reasonable excuse for not carrying out the directed rehabilitation program on the basis of unsubstantiated material. Persuasive medical evidence was entirely lacking. DSM–IV does not address the question of the cause of Pain Disorder. It notes, however, that “psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance of the pain.” A psychological cause in the present case was ruled out (Dr Walden).
56. It is not necessary for the Tribunal in the present proceedings to review the findings of Member Mr. S. Webb in the earlier proceedings before the Tribunal (paragraph 49 above). The Tribunal is prepared to accept the finding of an injury in 2001 compensable under section 14 of the Act. Member Webb himself regarded the consequences of such a finding sounding in compensation were ongoing and subject to assessment from time to time. This is consistent with what was said in Hannaford (paragraph 50 above).
57. The remaining conclusions of the Tribunal, reflected in its orders, are consequential on the above finding.
DECISION
58. It is the decision of the Tribunal that:
(a)The reviewable decision dated 7 December 2005 directing a rehabilitation and return to work program is affirmed.
(b)The notification dated 22 December suspending the Applicant’s entitlement to compensation under section 37(7) of the Act is affirmed. That suspension remains in effect until such time as the Applicant begins to undertake the rehabilitation program as directed.
(c)The decision dated 10 April 2006 affirming the determination dated 1 December 2005 that Australia Post was not liable to pay compensation to the Applicant for absences from her employment for the periods 28-31 October 2005 and 22-27 November 2005 is affirmed.
I certify that the preceding 58 paragraphs are a true copy of the reasons for the decision herein of Prof. I. A Shearer, Senior Member and Dr J. Campbell, Member.
Signed: …….…………….[sgd]………………….
Associate
Date of Hearing 13 September 2006 and 14 September 2006
Date of Decision 27 February 2007
Counsel for the Applicant D. E. Baran
Solicitor for the Applicant R. Fletcher, Stephen Smart and Associates
Counsel for the Respondent G. Johnson
Solicitor for the Respondent Graham Jones, Graham Jones Lawyers
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