Curran and Australian Postal Corporation
[2001] AATA 1052
•21 December 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1052
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/1427
GENERAL APPEALS DIVISION )
Re Lynette Anne Curran
Applicant
And Australian Postal Corporation
Respondent
DECISION
Tribunal M J Sassella, Senior Member
Date21 December 2001
PlaceSydney
Decision The decision under review is affirmed. The Respondent is not liable to pay any of the Applicant's costs associated with this application.
..............................................
Senior Member
CATCHWORDS
WORKERS' COMPENSATION – musculoligamentous lower back sprain - poor physical health and obesity problems – return to work programme – work restrictions due to weight – new evidence tendered at hearing – new evidence excluded – no entitlement to compensation for incapacity or medical treatment
Safety, Rehabilitation and Compensation Act 1988 - ss 4(1) "ailment", "disease", "injury", (9), 14(1), 16(1), 19(2), 24(1), (7), 66(1).
Re Riley and Commissioner for Rehabilitation and Compensation of Commonwealth Employees (AAT 8678, 30 April 1993)
REASONS FOR DECISION
21 December 2001 M J Sassella, Senior Member
History of the application
On 23 June 1994 Lynette Anne Curran ("the Applicant") lodged a workplace incident report with the Australian Postal Corporation ("the Respondent") in respect of an injury to the lower back that had occurred on 8 June 1994 (T6). She had been working with a colleague who had dropped a tray of mail which caused the Applicant to bend sharply, causing a "sharp pain in the small of [her] back."
On 24 June 1994 the Applicant lodged with the Respondent a claim for rehabilitation and compensation in respect of the above injury (T7).
On 14 September 1994 the Applicant lodged another workplace incident report with the Respondent, this time in respect of a severe pain felt in the back of the right hand (T10). The pain occurred when the Applicant was indexing as part of her work duties.
On 23 September 1994 the Applicant lodged an incident report in respect of "severe muscular pain" in the "lower back left side" (T11). She was distributing mail bags when the injury occurred. The Applicant lifted a mail bag that was heavier than she had expected when she was working at the loading dock (T14). She was lifting a heavy bag with a colleague but the lift was not well coordinated, the Applicant taking the full weight of the bag (T17). This pain was the same pain as the Applicant had felt when she was injured on 8 June 1994. It was her opinion that the 23 September 1994 injury was therefore another manifestation of the earlier injury.
On 1 November 1994 the Applicant lodged a claim for rehabilitation and compensation in relation to her lower left back injury suffered on 23 September 1994 (T17).
On 24 November 1998 the Applicant lodged an incident report due to a "severe pain in right elbow" which she felt whilst picking up handfuls of mail (T24).
Another incident report (undated) was subsequently lodged in respect of pain to the right elbow when the Applicant struck it against the edge of a ULD, a type of wheeled trolley with metal mesh sides used extensively in postal work, whilst performing her work duties (T25).
On 1 March 1999 the Respondent wrote to the Applicant informing her that it had determined to cease continuing liability for the incident of 23 September 1994 (T28). In support of this determination the Respondent referred to the report of Dr Chase (occupational physician) of 22 February 1999 which found that there was no residual impairment and that any ongoing pain was more likely due to the Applicant's general physical condition rather than to the incident of 23 September 1994.
Subsequent to this determination the Applicant requested, in an undated letter, a reconsideration of the decision to cease liability (T29).
On 10 May 1999 the Applicant was informed by the Respondent that she would have to provide evidence, at her own expense, that she would be able to fulfil the requirements of her employment with Australia Post within three months (T34). Her restrictions having been found not to be work related, the Applicant was advised that she would now be managed in accordance with the procedures for management of employees with non-work related restrictions.
On 7 July 1999 the Respondent again wrote to the Applicant informing her that she would be directed to take sick leave from 18 July 1999 unless she could provide evidence that she could meet the requirements of her position within three months (T36). The Applicant's sick leave expired on 23 September 1999. The Applicant returned to work in September 2000.
The decision under reviewOn 4 August 1999 the Respondent affirmed the determination of 1 March 1999 (T37). This decision noted the report of Dr Chen (occupational physician) of 22 July 1998 (T23) which found that the Applicant's injury and risk of further injury was related more to her weight and level of deconditioning than any other factor. Dr Chen found no evidence of lingering back injury. The Respondent further noted the report of Dr Chase of 22 February 1999 (T27) which echoed the opinion of Dr Chen in relation to the cause of the Applicant's pain. However, Dr Chase was of the opinion that the Applicant was fit to return to normal duties, although this would place her at risk of injury because of her obesity and physically deconditioned state.
On 20 September 1999 the Applicant lodged with the Administrative Appeals Tribunal ("the Tribunal") an application for review of the decision in T37 (T1).
Relevant legislationThe following provisions of the Safety, Rehabilitation and Compensation Act1988 ("the Act") are relevant: ss 4(1) "ailment", "disease", "injury", (9), 14(1), 16(1), 19(2), 24(1), (7), 66(1).
Safety, Rehabilitation and Compensation Act, 1988
SECT 4
Interpretation
4. (1) In this Act, unless the contrary intention appears:
…
ailment means any physical or mental ailment, disorder, defect
or morbid condition (whether of sudden onset or gradual
development);
…
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a
material degree by the employee's employment by the Commonwealth or
a licensed corporation;
…
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee,
being a physical or mental injury arising out of, or in the course
of, the employee's employment; or
(c) an aggravation of a physical or mental injury (other than a
disease) suffered by an employee (whether or not that injury arose
out of, or in the course of, the employee's employment), being an
aggravation that arose out of, or in the course of, that
employment;
but does not include any such disease, injury or aggravation
suffered by an employee as a result of reasonable disciplinary
action taken against the employee or failure by the employee to
obtain a promotion, transfer or benefit in connection with his or
her employment;
…
(9) A reference in this Act to an incapacity for work is a
reference to an incapacity suffered by an employee as a result of an
injury, being:
(a) an incapacity to engage in any work; or
(b) an incapacity to engage in work at the same level at which he
or she was engaged by the Commonwealth or a licensed corporation in
that work or any other work immediately before the injury happened.
…
PART II - COMPENSATION
Division 1 - Injuries, property loss or damage, medical expenses
SECT 14
Compensation for injuries
14. (1) Subject to this Part, Comcare is liable to pay
compensation in accordance with this Act in respect of an injury
suffered by an employee if the injury results in death, incapacity
for work, or impairment.
…
SECT 16
Compensation in respect of medical expenses etc.
16. (1) Where an employee suffers an injury, Comcare is liable to
pay, in respect of the cost of medical treatment obtained in
relation to the injury (being treatment that it was reasonable for
the employee to obtain in the circumstances), compensation of such
amount as Comcare determines is appropriate to that medical
treatment.
…
SECT 19
Compensation for injuries resulting in incapacity
…
19. (2) Subject to this Part, Comcare is liable to pay compensation to
the employee in respect of the injury, for each of the first 45
weeks (whether consecutive or otherwise) during which the employee
is incapacitated, of an amount calculated under the formula:
NWE - AE
where:
NWE is the amount of the employee's normal weekly earnings; and
AE is the amount per week (if any) that the employee is able to
earn in suitable employment.
…Division 4 - Injuries resulting in impairment
SECT 24
Compensation for injuries resulting in permanent impairment
24. (1) Where an injury to an employee results in a permanent
impairment, Comcare is liable to pay compensation to the employee in
respect of the injury.
…
(7) Subject to section 25, where Comcare determines that the
degree of permanent impairment of the employee is less than 10%, an
amount of compensation is not payable to the employee under this
section.
…
PART VI - RECONSIDERATION AND REVIEW OF DETERMINATIONS
…
SECT 66
Evidence in proceedings before Administrative Appeals Tribunal
66. (1) Where:
(a) a claimant who has instituted proceedings under this Part
seeks to adduce any matter in evidence before the Administrative
Appeals Tribunal in those proceedings; and
(b) the claimant had not disclosed that matter to the Tribunal at
least 28 days before the day fixed for the hearing of those
proceedings;
that matter is not admissible in evidence in those proceedings
without the leave of the Tribunal.
…
Background
The Applicant was born on 22 September 1951. She is married with four children aged between 16 and 29 years. The Applicant completed high school education to year 12 and subsequently obtained a Diploma in Teaching. She then remained at home for 20 years looking after her family. The Applicant returned to the workforce, as a mail officer with Australia Post, in August 1993.
Documentary medical and other evidence
The Applicant was provided with separate medical certificates excusing her from work for the following periods in respect of the injury to the lower back of 8 June 1994 (T5):
? 8 June 1994 – 9 June 1994
? 9 June 1994 – 20 June 1994
? 21 June 1994
? 22 June 1994 – 4 July 1994
? 4 October 1994 – 8 October 1994On 14 July 1994 an occupational health and safety adviser for the Respondent reported on a workplace assessment conducted on behalf of the Applicant (T9). A "4 stage return to duties program" was recommended. This involved a gradual increase, over four stages, of the Applicant's duties, the time spent standing and sitting and the weight that she would be allowed to lift. Each stage was of a week's duration.
On 14 October 1994 a workplace assessment (T12) recommended that the Applicant be restricted to working four hours per shift for three days per week. She was not to lift objects of more than 5 kilograms in weight.
On 20 October 1994 Dr Chen reported on the Applicant's condition at the request of the Respondent (T14). The Applicant was complaining of intermittent backache which occurred after prolonged sitting and was usually worse early in the morning. She also complained of sharp pains in her back which occurred spontaneously or if she bent suddenly. Dr Chen noted that the Applicant attributed these symptoms to the back injury of 23 September 1994. The Applicant was referred to physiotherapy treatment by her general practitioner after experiencing this pain and resumed selected duties for a two month period. She had resumed normal duties following the June 1994 incident, in August 1994.
Dr Chen examined the Applicant and noted that she was in the "very obese category." The Applicant moved freely and appeared to be in no discomfort. Dr Chen found that the symptoms were consistent with a "musculo-ligamentous sprain to her low back involving the left ilio-lumbar ligament and lower lumbar interspinous ligaments." She recommended a graduated return to work, gradually increasing the Applicant's working hours and duties over a five week period, returning to normal duties by 28 November 1994. However Dr Chen also found that the Applicant was at an increased risk of injury, due to her obesity and lack of conditioning, if she was required to perform repetitive heavy handling work. She recommended that the Applicant be excused from such duties for the time being. Dr Chen did state however that the Applicant would be able to perform all of the other duties required of a mail officer.
On 22 January 1997 Dr Chen again reported on the Applicant for the Respondent (T21). The Applicant told her that she had had no further difficulties apart from occasional backache after the repetitive traying of mail. Dr Chen reported her clinical impressions as follows:
"The lower lumbar tenderness to palpation is probably of postural origin. She probably has some scarring in the right lumbar back muscles (quadratus lumborum) from a previous strain injury which intermittently causes her symptoms. This however should not affect her work capacity.
"However, as I have indicated previously, the level of her deconditioning and obesity necessitates some caution with prolonged and repetitive trunkal bending and heavy manual handling…A maximum lifting restriction of 16 kilograms is recommended for intermittent lifts and 12 kilograms for repetitive lifting.
"It is emphasised that these lifting restrictions have been recommended due to her deconditioning and obesity and not due to previous back injury of June and September 1994, from which she has recovered."On 22 July 1998 Dr Chen again examined and reported on the Applicant at the request of the Respondent (T23). The Applicant reported to her that since December 1995 she had had no problems, however she did continue to experience occasional back ache and sharp pain with certain movements. The Applicant stated that her condition was largely unchanged since the previous consultation with Dr Chen on 22 January 1997. Dr Chen found no evidence of any lingering back injury or impairment in the lumbo-sacral spine, but stated that the fact that the Applicant was grossly overweight placed her at a greater risk of suffering injury as a result of her lifting and manual duties. Again, Dr Chen recommended that the Applicant avoid heavy manual lifting and be restricted to lifting weights of 12 kilograms. The importance of losing weight was stressed to the Applicant. The restrictions appied to the Applicant were considered to be permanent as long as she remained overweight.
On 11 January 1999 an Australia Post State Information Bulletin stated the following:
"If, after all reasonable efforts have been made, it is apparent an employee will be unable to perform the inherent requirements of his/her nominal position within the timeframes stipulated in the Procedures, management will take the necessary action to redeploy or retire the employee." (Ex R5)
On 22 February 1999 Dr Robin Chase provided a further report on the Applicant (T27). He recorded a history of the back injury suffered by the Applicant. Dr Chase examined the Applicant and found that she had a body mass index of 43 which is well above the range for obesity. In relation to her back pain he stated:
"It is probable that the majority of her pain is not actually related to a work related injury but is more related to her significant obesity and poor general physical condition. This results in patterns of muscle weakness and poor posture.
"There is no residual impairment and Ms Curran is leading a normal life with occasional recurrences of pain…"However, Dr Chase further stated that:
"If one accepts her history there no doubt that she was pain free before the incident on 23.9.94 and since that time has suffered from recurrent low back pain. On the balance of probabilities, (accepting that history), it is most probable that her pains are attributable to her work.
"Ms Curran is currently fit to perform her full and normal duties with restrictions…"Dr Chase was of the opinion that the Applicant would continue to suffer pain whilst she remained significantly overweight and that in such a condition she would never be able to return to full duties.
On 16 March 1999 Dr Nisha Mahajan provided the Applicant with a medical certificate sating that she was fit for work from 16 March 1999 (T5/31). She stated, "apparently Lynette had an acute low back strain in 1994, but she is now fit for normal duties."
On 30 March 1999 Dr Chase commented further on the Applicant's condition (T32). He stated that "Ms Curran is very unfit and overweight and while she remains so she can never return to her full duties."
On 22 July 1999 a medical certificate from the Hammondville and Holsworthy Medical Centre stated that the Applicant's recurrent pain was an exacerbation of the original injury of 1994 (T5/23).
Also on 22 July 1999 Dr Mark Cohen, radiologist, reported that there were no degenerative or abnormal conditions present in the Applicant (Ex R2).
On 24 January 2000 Dr David Maxwell, orthopaedic surgeon, completed a report on the Applicant (Ex R1). He also took a detailed work and medical history of the Applicant. In his diagnostic findings he stated the following:
"It appears from her history that Lynette Curran has sprained her back at work on 2 occasions in 1994. She subsequently returned to work and was managing her duties. She has not had any real problems…
"I felt after February 1999, however, that she no longer would have needed to be on any form of restriction…
"Her prognosis is excellent…"Dr Maxwell recommended that the Applicant continue her weight loss and exercise program.
On 22 May 2000 Dr James Bodel, orthopaedic surgeon, reported on the Applicant (Ex A1). He took detailed notes of the Applicant's workplace incidents and medical history. Dr Bodel found that the Applicant suffered from mechanical back ache, but was uncertain of the exact cause. He recommended a MRI scan in order to gather more definite evidence of this. He also stated that the Applicant was "fit for the work that she would do as a mail officer at the new Strathfield exchange and that the 12 kilogram lifting limit was somewhat arbitrary. This should be reassessed pending the results of the MRI scan". He recommended regular exercise and analgesic medication. Dr Bodel found that the Applicant had a 5% permanent (whole person) impairment function in the back according to Table 9.6 of the Comcare Guide. He further found that this was a work-related disability.
The hearingThe Tribunal convened a hearing in this matter on 30 November 2000. The Applicant was represented by Mr Andrew Capelin of Counsel, the Respondent by Mr Grant Elliott, also of Counsel. The Tribunal received into evidence the following documents:
? Exhibit TD1 - Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. References to T documents are references to documents within this exhibit.
? Exhibit TD2 – Incident reports replicated in Ex TD1. Required to replace indecipherable copies in Ex TD1.
? Exhibit A1 – Medical report of Dr Bodel, orthopaedic surgeon, dated 22 May 2000.
? Exhibit A2 - Applicant's statement of facts and contentions dated 22 March 2000.
? Exhibit R1 – Medical report of Dr Maxwell, orthopaedic surgeon, dated 24 January 2000.
? Exhibit R2 – X-ray report of Dr Cohen dated 22 July 2000.
? Exhibit R3 - Employee leave history for Lynette Curran.
? Exhibit R4 – Clinical notes of Dr Playford.
? Exhibit R5 – Australia Post State Information Bulletin dated 11 January 1999.
? Exhibit R6 – Respondent's statement of facts and contentions, undated.
Preliminary matters
At the commencement of the hearing on 30 November 2000 counsel for the Applicant sought to tender several documents not previously filed with the Tribunal or served on the Respondent. The Applicant had been referred for an orthopaedic opinion on 15 November 2000. The information in the resulting report which, perforce, was forthcoming late in November was very relevant. Two other documents were a CT scan dated 3 November 2000 and a MRI report dated 21 November 2000, which had been suggested by Dr Bodel in Ex A1.
Mr Elliott objected to this material being accepted for marking as exhibits. It was provided late. The scans had not been filed and served earlier, although available. The Respondent's doctors had not been invited to give evidence pursuant to an arrangement between the solicitors which had been made in ignorance of this inadequately foreshadowed evidence. He referred also to the Tribunal's decision in Re Riley and Commissioner for Rehabilitation and Compensation of Commonwealth Employees (AAT 8678, 30 April 1993), a decision that in part addresses s 66(1) of the Act.
In the Riley case (supra) the basic procedural facts were that the matter was heard by the Tribunal for a first day. It was resumed for a second day to permit the applicant to call a treating specialist who was not available on day one. At the resumption counsel for the applicant announced that he would be calling additional lay witnesses. He sought to tender a report by a specialist dated two days before the resumption date. This stemmed from an examination done five days before the resumption date. The report had been served on the respondent on the day before the resumption date.
Counsel for the applicant could offer no acceptable reason why notice of this late evidence had not been provided at least 28 days before the hearing, as is required by s 66(1) of the Act. He could not explain why the newly consulted specialist had not been consulted prior to the first hearing day. He justified seeking the admission of the evidence solely on the ground of its relevance. The new report suggested a completely new hypothesis to account for the applicant's condition. The new evidence had not been foreshadowed on the first hearing day.
The Tribunal considered that the applicant's representatives had used the period between the hearing days to find a new doctor who could help shore up the applicant's position following the first day's evidence. The Tribunal took the view that "without any reasonable explanation for the late tender, such evidence would be more prejudicial to the respondent than its exclusion would be to the applicant" (paragraph 28). What the applicant's representatives had done was exactly what s 66 aimed to avoid (paragraph 29). "[Section] 66 is intended to ensure an open administrative inquiry and to frustrate attempts to ambush the respondent".
Mr Capelin sought to distinguish Riley (supra) on the basis that the Applicant in this case had not secured new evidence to present at a resumed hearing. The evidence was available at the opening of the proceedings and the Respondent could still have it assessed by its medical advisers
The Tribunal decided to exclude the evidence Mr Capelin sought to tender. The Tribunal considered whether the Applicant's representatives had flagged with the Respondent's representatives the existence of this additional evidence during November and ascertained that they had not. This was despite the existence of some of it since 3 November. The Tribunal noted that Dr Bodel had recommended a MRI scan in May 2000 (Ex A1). This was not taken up by the Applicant's legal advisers until 21 November 2000. The Respondent was justified in considering that an option that had been eschewed by the Applicant. The Applicant's representatives had not provided the Tribunal with a hearing certificate flagging its intentions as regards witnesses and evidence. The Tribunal considered that it could find no basis for concluding that the Applicant's representatives had abided by the spirit of s 66(1) of the Act, even if they had overlooked the strict requirements of that provision. It adopted the reasoning of the Tribunal in Riley (supra) and decided that the prejudice to the Respondent if the material were to be admitted was greater than any prejudice to the Applicant resulting from its exclusion.
Over the Applicant's objection, the Respondent sought to have Ex R2 admitted as an exhibit despite not having given any early warning of that intention. The Tribunal permitted this for two reasons. First, the Respondent is not touched by s 66(1) of the Act. Second, and more substantially, this document was from documents summonsed by the Respondent from Dr Playford. That summons had been issued on 7 December 1999 at the Respondent's request. Dr Playford had complied with the summons on 14 January 2000. Access had been granted to both parties by Mr Barbour, SM on 11 February 2000. The Applicant's representatives had been free to inspect that document for over nine months prior to the hearing.
43.The Tribunal was conscious of the fact that Mr Capelin, the Applicant's counsel, had not contributed in any way to the failure of the Applicant to abide by s 66 of the Act. The Tribunal records its gratitude to Mr Capelin for his professionalism in a very difficult situation.
Findings on material questions of fact with reference to the facts and other material in support of those findings
44.The Applicant is seeking compensation for medical expenses attributable to her alleged compensable injuries (Ex A2), presumably for medical treatment provided after 1 March 1999. She was also seeking to return to work as a machine operator at the Strathfield Postal Exchange. This had occurred by the date of the hearing.
The issues before the Tribunal, pursuant to the Act are:
Whether the decision of 1 March 1999 to cease compensation liability was the correct or preferable decision.
Whether the Respondent continues to attract liability to pay compensation to the Applicant.
The Applicant gave oral evidence. From that evidence the following salient material emerged.
The Applicant had experienced no back problems before commencing work with Australia Post in 1993. She has always been "grossly overweight". Despite this, again prior to June 1994, there had been no back problems.
Since September 1999 the Applicant had lost 20 kg in weight and her back problems had worsened. She had particular back pain in March 2000, and eight weeks before the hearing had developed hip pain. She insisted in her evidence that the hip pain has its source in her back. She has had leg pain for a long time.
The Applicant explained returning to work in September 2000. To be accepted back by Australia Post she had to lose weight and had to be prepared to lift weights up to the regulation 16kg. She works in a team on an equality with everyone else. If she sees that a tray of letters may be too heavy for her she removes some letters. The Applicant continues to experience back pain. It is worse on Fridays than on Mondays. The back is bearable. She has learned to live with it. She has pain when she rises in the morning but relieves that with 15 to 20 minutes exercise each day.
The focus of Mr Elliott's cross-examination was the Applicant's credit. He was at pains to expose inconsistencies in her story and selectivity in the information she gave different doctors. She said in her evidence that as a result of the incident on 8 June 1994 she had gone to hospital and was driven there by a senior mail officer. This is inconsistent with the contents of T6 (where she said she was treated by a first aid officer). She told Dr Chen (T14) of no medical intervention until she saw Dr Playford soon after but on a different day.
The Applicant agreed that her back had recovered by July 1994. She told Dr Chen this (T14/53). She told Dr Chen in October 1994 that, following the incident on 23 September 1994, her back was about 75% better. The back continued improving. The pain has largely gone away. She is "good during the day".
It was put to the Applicant that she did not see Dr Playford about her back between November 1994 and 1999 whereas she has seen the medical centre about other conditions. The Applicant denied this. She said that she had seen doctors about her back within that period and she had seen Dr Playford during the week of the hearing. She referred to having seen Dr Anand in Hammondville about her back.
Ms Curran told Mr Elliott that she may not have told Dr Chen the entire truth when she saw her in July 1998 because she desired to return to full duties and better shift allocations. She had told Dr Chen that "she has had no problems since [1995], however, she continues to experience the occasional back ache and sharp pains with certain movements" (T23). She had said in 1997 to Dr Chen that "since [1994] she has had no further difficulties, apart from the occasional episode of backache after repetitive bending associated with traying mail, which apparently requires repetitive bending to reach into deep bins" (T21). The Applicant told the Tribunal that she had "omitted some things" in these discussions with Dr Chen. Her problems which had commenced in 1994 had not resolved despite Dr Chen's reports. Even light duties produced exacerbations.
Mr Elliott called the Tribunal's attention to the fact that the Applicant had taken only five or six sick leave days a year (Ex R3), sometimes fewer. None of these were for back conditions after November 1994. She had no later medical certificates for her back. There is no evidence that she has been medicated since November 1994 in relation to her back. The Applicant replied that she uses her husband's medications. The Applicant says that she always has muscular back problems. She has managed to go for up to two or three months at a time without severe back problems.
Mr Elliott put to the Applicant that she saw Dr Chase on 17 February 1999. Two days earlier she had seen her local medical officer whom she told she could lift 12 kg without any problem. She had even said that she could lift 16 kg. She demonstrated unrestricted back movements to him (Ex R4). In T27 Dr Chase, on 22 February 1999, reports that the Applicant told him that she had not seen Dr Playford about her back for some years and "indeed the last time she saw a doctor was Dr Joan Chen in 1998". This was despite the Applicant having seen Dr Playford on 15 February 1999. Mr Elliott asserted that the Applicant had lied to Dr Chase.
Mr Elliott detected that the Applicant had told Dr Playford that she had no further problems with her back but she told Dr Chase an exaggerated story that she was having relapsing remitting back.
The Applicant had not told Dr Chen that she needed five or six sick days a year because of her back. The Applicant responded that there had been no reason to tell her. The Applicant had wanted a clearance to return to full duties.
Mr Elliott referred to Dr Mahajan's certificate at T5/31 where the doctor said on 16 March 1999 that the Applicant was fit for normal duties as mail officer. The Applicant responded that she expected to be able to swap heavy duties if she returned to work. She did not intend lifting the regulation weight of 16 kg. The Applicant then said she could do an occasional heavy lift but not repeatedly, as required on the loading dock. The Applicant conceded that she expected to be given full duties.
The Tribunal notes at this stage that Dr Mahajan's certificate was rejected by Australia Post as the doctor was not a specialist.
The Applicant discussed her return to work in September 2000. The work was heavier than previously. She was on a graduated return and was still restricted to 12 kg lifting at November 2000. She returned to work after seeing Drs Chase and Maxwell. She works around her limitations.
In final submissions on the Applicant's behalf Mr Capelin argued that whatever remains by way of back injury is attributable to the Applicant's work. He referred to Dr Playford's view expressed on 22 July 1999 (T5/23) which was, "from her history the pain has persisted with recurrent episodes and it is my opinion that these have been exacerbations of the original injury". He referred to Dr Chase's opinion that the "majority" of her pain is not actually related to a work-related injury but is more related to her significant obesity and poor general physical condition. This leaves open that a "minority" contribution to the condition came from the work-related injury. Further, he opined that, if the Applicant's history is accepted, her back has been symptomatic only since the September 1994 incident. If that is the case "it is most probable that her pains are attributable to her work" (T27).
As regards the Applicant's weight, her loss of weight should have been accompanied by an improvement in symptoms whereas it was not. Additionally, the Applicant was overweight when she joined Australia Post. Australia Post has to take the Applicant as it finds her.
Mr Elliott, for the Respondent, argued that the original injury was minor. The Applicant worked on for the rest of the day. She went home, lay down and then could not get up. She apparently went to St George Hospital (T5/19) but nothing was made of this in her reports and claims. An x-ray was normal. There was no referral to a specialist (Ex R4). By August 1994 the Applicant was returned to full duties (T14). In T17/62 the Applicant, admittedly in the context of a new claim, said that she had recently recovered from the June 1994 injury.
Mr Elliott queried the seriousness of the September 1994 injury. `According to T11 she worked on for six hours after the incident and the accident report was not completed until a week later (Ex TD2).
Mr Elliott referred to the dearth of reports of back pain by the Applicant to her doctor between 1994 and 1999.
Mr Elliott was predictably critical of the Applicant's credibility as a witness.
The Tribunal's own survey of the medical evidence, in addition to the matters identified by counsel, yielded the following.
The medical certificates in T5 refer almost exclusively to diagnoses of muscular strain, sprain or pain. Dr Chen (T14) diagnosed a musculo-ligamentous sprain.
Dr Chen by July 1998 (T23) found no evidence of lingering back injury or impairment in the lumbo-sacral spine.
Dr Chase opined that by February 1999 there was no residual impairment (T27). The Applicant was leading a normal life with occasional recurrences of pain. She was fit to resume normal work but with restrictions attributable to non-work-related factors.
Dr Chase (T32, 30 March 1999) disagreed with local doctor, Dr Mahajan (T5/31, 16 March 1999) that the Applicant was fit for the normal duties of a mail officer. He considered that she could return to work but was very unfit and overweight. While she remained in that condition she could never return to her full duties. A return to full duties would exacerbate her back pain. Clearly, this report explains why there was a delay before the Applicant was able to return to work on a basis satisfactory to the employer.
Dr Bodel (Ex A1) reported on 22 May 2000. The history given him was that the Applicant had never completely recovered from the injury in June 1994. This is, of course, at odds with the Applicant's statements elsewhere, most notably in T17/62. The recent history had been of occasional flare ups of pain. He considered that she was "currently fit for the work that she would do as a mail officer at the new Strathfield exchange". The applicant told Dr Bodel that she would not have to lift 16kg weights at Strathfield although that remains a requirement of the job. He was extremely keen that there be further investigations to identify better the root causes of the Applicant's problems.
Dr Maxwell (Ex R1) reported on 24 January 2000. He received a history that the Applicant's recovery following the 1994 injuries was good. He wrote, "Subsequently [to November 1994] she said her back was quite good". She would get occasional back pain by the end of the week but it would settle on the weekend. She took off an occasional sick day but claimed no compensation. He diagnosed back sprains on two occasions. He noted that the Applicant had returned to work and was managing her duties. She had had no real problems. By February 1999 she no longer would have needed to be on any form of restriction. At the time of the examination the Applicant wanted to return to full duties.
The x-ray results for 22 July 1999 (Ex R2) show no pathology or abnormality in the lumbar-sacral spine or sacro-iliac joints.
At base, the Applicant's argument is that she does suffer continuing pain from the injuries of 1994 which occurred as part of her work. The pain is spasmodic and tends to increase as she works longer and possibly harder. Thus the pain symptoms tend to emerge late in the working week and resolve over the weekend. Clearly, the Applicant can work despite these symptoms, albeit with an occasional sick day, if her evidence is to be believed. She would appear to qualify for little if any incapacity compensation under s 19 of the Act. She argues, however, that she should have access to compensation for relevant medical treatment under s 16 of the Act. She might also try for a permanent impairment lump sum compensation payment under s 24 of the Act. However, it is highly unlikely that she would qualify for this. Her own consultant orthopaedic surgeon, Dr Bodel, sees her as only 5% impaired (Ex A1). That is too low a level to sound in any sort of payment.
The Respondent simply says that there is no continuing injury attributable to the 1994 incidents. The Applicant's pain, such as it may be, is attributable only to her weight problem. The decision to cease all liability to the Applicant under the Act was and remains correct.
The Tribunal finds that the decision to cease liability on 1 March 1999, and the reviewable decision on 4 August 1999, were correct or preferable decisions when taken. There is in fact no medical evidence applicable on those dates to the effect that the Applicant had any continuing incapacity for work or any ongoing compensable injury. Further the Tribunal finds that there is no medical evidence that, when properly examined, supports any argument that the compensable injuries continue to affect the Applicant such that, although she can work, she has a need for medical treatment related to those injuries. The Tribunal acknowledges that Dr Chase was prepared to attribute the Applicant's pain symptoms to her work injuries (T27/86) but only on the assumption that her history was accepted. The Tribunal has some difficulty accepting the Applicant's version of her history because it has been inconsistent as was demonstrated by Mr Elliott.
Despite the Applicant's evidence that her condition has worsened following the loss of 20 kg of weight, the Tribunal notes that Dr Chen considered (T23/72) on 22 July 1998 that Ms Curran needed to lose at least 30-40kg of weight. The loss of 20kg may not be a fair guide to the benefits to be gained from a loss of the additional weight suggested by Dr Chen.
ConclusionIn view of the above findings the tribunal has concluded that the decision to cease liability for payments of compensation to the Applicant was the correct or preferable decision and remains so. This means that the Applicant is not entitled to any compensation for incapacity or medical treatment. It also means that she is not entitled to any costs arising from this application.
Decision
The decision under review is affirmed. The Respondent is not liable to pay any of the Applicant's costs associated with this application.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing 30 November 2000
Date of Decision 21 December 2001
Counsel for the Applicant Mr A Capelin
Solicitor for the Applicant J Coyle, McLellands Solicitors
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent J Flannagan, Hunt & Hunt Solicitors
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