DINH and AUSTRALIAN POSTAL CORPORATION

[2010] AATA 695

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 695

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/1238 & 2008/3032

GENERAL ADMINISTRATIVE  DIVISION		)
Re		NGOC SUONG DINH

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, Member

Date10 September 2010  

PlaceSydney

Decision The decision under review is affirmed.

.....................[sgd]...............................

Ms N Bell, Presiding Member

CATCHWORDS – Workers’ compensation – permanent impairment – incapacity – psychiatric condition consequent on physical condition – condition caused by over reliance

Safety, Rehabilitation and Compensation Act 1988

REASONS FOR DECISION

Ms N Bell, Senior Member
Dr M E C Thorpe, Member

1.      Ngoc Suong Dinh began work with Australia Post in 1986. In 2006, Ms Dinh made a claim for compensation to her employer for a right shoulder condition. In 2008, Ms Dinh made a claim for a psychological injury she said was consequent on her right should injury. Both these claims were rejected by Australia Post. Ms Dinh currently seeks a review by this Tribunal of those decisions.

2.      By way of background, Ms Dinh had also made a claim for a right hand and wrist injury in 1997. For this, Ms Dinh received some incapacity payments and medical expenses.  In 2002, Ms Dinh also made a claim for a left shoulder injury. This claim was rejected. On appeal to this Tribunal, the decision was affirmed by the Tribunal by consent in 2007.  Ms Dinh was legally represented in relation to those proceedings.

3.      

Ms Dinh, who did not have the benefit of legal representation in the current proceedings before the Tribunal, raised a number of contentions as to the causation of her right shoulder and psychiatric conditions.  She maintained that her right shoulder condition arose because of her over reliance on her right upper limb due to the injury she had suffered to her left shoulder.  It must be remembered that, by consent, the decision to deny liability for her left shoulder had been affirmed by the Tribunal.  Alternatively, Ms Dinh contended that her right shoulder condition arose from the nature and conditions of her work and in particular the requirement on

26 July 2006 that she perform the same repetitive action for some six hours without change.  Again, it must be remembered that any reliance by Ms Dinh on her right arm to perform any actions arose out of her left shoulder condition for which Australia Post was not liable.  Finally, in the alternative to the two contentions above, Ms Dinh contended that her right shoulder condition was an aggravation of an underlying condition which had been the subject of a successful claim in May 1997 for “pain on right hand and wrist (sic)”. Incapacity payments and medical expenses were paid to Ms Dinh for “sprain of soft tissues of right forearm”.

4.      As to Ms Dinh’s psychiatric condition, she, for the most part, maintained that it is the result of her right shoulder condition and in that way arose out of her employment.

5.      Ms Dinh was very critical of Australia Post’s response at various times over the years to her claimed injuries and to her claims for rehabilitation.  A large part of her oral and documentary evidence was directed to these concerns.  However, while we appreciate the importance of these matters to Ms Dinh, this is not relevant to the particular applications before the Tribunal or to the issues raised by them.

6.      Australia Post contended that Ms Dinh’s right shoulder condition is the result of her reliance on her right upper limb because of her inability or reluctance to use her left upper limb.  Australia Post also contended that as it is not liable for any left shoulder injury condition, then it can not be liable for any condition in her right shoulder arising from over-reliance consequent to her left shoulder condition. Australia Post denied that the nature and conditions of Ms Dinh’s work contributed to her right shoulder condition and specifically rejected the claim that she had been required to work at the same task for some six hours on 26 July 2006.  In respect of Ms Dinh’s last contention, Australia Post submitted that there is no medical evidence of any connection between Ms Dinh’s 1997 right wrist and arm condition and her claimed right shoulder condition and therefore no basis on which to allege aggravation.

7.      In respect of Ms Dinh’s claim for a psychological injury, Australia Post contended that Ms Dinh had suffered from a psychiatric condition prior to the emergence of her right shoulder condition and in fact it had emerged from her left shoulder condition and Australia Post’s rejection of her claim for her left shoulder.

8.      The questions posed by this contest are therefore:

i)     Did Ms Dinh’s increased reliance on her right upper limb cause her right shoulder condition?

ii)    Was Ms Dinh’s right shoulder condition caused by the nature and conditions of her work?

iii)   Is Ms Dinh’s right shoulder condition an aggravation of a previous work related injury?

iv)   Was Ms Dinh’s psychiatric condition caused by her right shoulder condition?

did ms dinh’s increased reliance on her right upper limb cause her right shoulder condition?

9.      Ms Dinh’s evidence was that on 26 July 2006 she was unable to use her left arm and worked only with her right arm.  She was on light duties at the time. Ms Dinh said that prior to this she had no pain in her right shoulder.

10.     In his report of 28 July 2006, Dr Burrows reported that Ms Dinh had awoken “a few days ago” with right shoulder pain that was similar to but not as bad as her left shoulder pain.  He did not record any history of an event or activity that gave rise to the right shoulder pain.  Later, in his report after discussing the attribution of her left shoulder pain to her work activities, he said:

“It is reasonable to argue then that the subsequent development of right shoulder irritability last week and probably frozen shoulder in the months ahead is due to this original work related condition, and therefore it should be attributed to work activities.”

11.     A shoulder ultrasound study in October 2006 detected a partial thickness rotator cuff tear.

12.     In his report dated 8 April 2009, Dr McGill, rheumatologist, took a history of little or infrequent above shoulder work.  On that basis he found that her rotator cuff tear was unlikely to be attributable to her work.  He offered no opinion as to whether her right shoulder complaint arose from her exclusive use of her right arm due to non use of her left arm.

13.     No other medical opinion comments on the connection, if any, between her left shoulder complaint and her right shoulder pain.

14.     

For these reasons, notwithstanding the rather speculative opinion of

Dr Burrows, we cannot be satisfied that Ms Dinh’s right shoulder pain is a result of over reliance on her right arm, in turn a result of a condition with her left shoulder.

was ms dinh’s right shoulder condition caused by the nature and conditions of her work?

15.     

Ms Dinh’s evidence to the Tribunal was that on 26 July 2006 she was forced by her employer to work at the same repetitive task for most of the working day. 

Ms Dinh initially said she was forced to work, undoing small parcels, for seven hours.  Later, under close questioning, she said the period was closer to four or five hours.

16.     It was put to Ms Dinh that Dr Antoun, an Australia Post appointed doctor, had recorded in his clinical notes after seeing Ms Dinh on 27 July 2006 that Ms Dinh reported working for two and a half hours opening parcels on 26 July 2006. Ms Dinh suggested that Dr Antoun was acting dishonestly in the interests of Australia Post.

17.     

We note also that, as mentioned previously, Dr Burrow’s report of

28 July 2008 makes no mention of these work activities and instead speculates about over reliance on her right shoulder because of an injury to her left shoulder.

18.     We also note the opinion of Dr McGill that whether Ms Dinh’s right shoulder symptoms were caused by her work would depend on the nature of her duties. His opinion was that if, as she says, she spent an entire day using her right hand to process small parcels with repetitive movements of her right upper limb, then those duties would have caused a temporary aggravation of her shoulder and that aggravation would have persisted for some three weeks.

19.     

We note also that no mention was made by Ms Dinh’s general practitioner

Dr Chen or psychiatrist Dr Law of work activities giving rise to the pain in Ms Dinh’s right shoulder in the months following 26 July 2006.

20.     It was put to Ms Dinh that she had seen her general practitioner Dr Chen on 10 July 2006 complaining about pain in her right shoulder similar to the pain in her left shoulder and that Dr Antoun had reported on 27 July 2006 a history of pain in her right shoulder over the previous few days. Ms Dinh’s response was that repetitive injuries do not happen over just one day and they take many days. This response was inconsistent with her contention that she had no pain in her right shoulder prior to 26 July 2006.

21.     Ms Dinh’s evidence on this question and many others was contradictory and inconsistent.  At various times she suggested doctors were wrong in their reports of  the histories she had given them.  Ms Dinh often blamed her lack of English language skills for inconsistencies in her own evidence.  Although she often answered questions before they were interpreted to her and most often answered in English, notwithstanding the presence of an interpreter, she blamed the interpreter for inconsistencies in her evidence.  She was often evasive in her answers.

22.     On balance we cannot be satisfied that Ms Dinh’s description of the duties she undertook on 26 July 2006 is correct.  Nor can we be satisfied that her right shoulder condition was caused or contributed to by the nature and conditions of her work.

is ms dinh’s right shoulder condition an aggravation of a previous work related injury?

23.     Dr McGill, in his report of 26 March 2009, said that in 1997 there was no suggestion of right shoulder pathology.  A reading of the medical reports at that time indicates that Ms Dinh’s original complaint was of right wrist pain.  Some days later she complained of shoulder pain.  

24.     Dr Robin Chase, occupational physician, reported on 2 July 1997 that a bone scan had shown:

“[F]ocal mild to moderate uptake involving the right radiocarpal articulation.  This could reflect degenerative change or ligament insertion type pathology.  There is no scan evidence of a lateral epicondilitis on the right side and no definite abnormality was demonstrated in the cervical spine.”  (T-documents p. 44)

Dr Champion said he expected the injury, a mild strain of the radial aspect of the right wrist, to settle in six to eight weeks.

25.     Dr Manohar, musculo-skeletal and rehabilitation medicine specialist, reported on 7 July 1997 that Ms Dinh’s cervical extension, flexion, rotation and side flexion were good, with a slight pulling sensation over the trapezius and shoulder girdle movements were reasionably within normal limits.

26.     Dr Podgorski, rheumatologist, reported on 2 September 1997 that it is not probable that any problems in Ms Dinh’s right posterior shoulder girdle occurred at the same time as did the problems with her right wrist or from the same incident.

27.     No medical practitioner has reported a connection between the injury to Ms  Dinh’s forearm in 1997 and the shoulder symptoms she complained of after that claim and the development of pain in 2006.

28.     We are not satisfied that Ms Dinh’s right shoulder condition was an aggravation of a previous work related injury. Given our conclusions that Ms Dinh’s right shoulder condition was not caused by the nature and conditions of her work and that it is not an aggravation of the injury she suffered in 1997, and in the absence of evidence of any other path of causation or contribution, we conclude that her right shoulder condition is not an injury arising out of or in the course of her employment. 

was ms dinh’s psychiatric condition caused by her right shoulder condition?

29.     

Ms Dinh said in evidence to the Tribunal that prior to 26 July 2006 she was only a little bit unhappy and that was mainly due to issues in her family life.  She said her unhappiness prior to July 2006 was unhappiness at home.  She said that in July 2006, she was happy at work until she injured her shoulder on 26 July 2006.  Later, under close questioning Ms Dinh said that she became very distressed on

24 July 2006 when she read her file about her application in respect of her left shoulder in her barrister’s office. 

30.     Ms Sandra Nguyen, psychologist, reported on 6 April 2009 that Ms Dinh’s depression arose out of her injuries at work and, in particular, her right shoulder pain.

31.     

In a report dated 21 August 2006, Dr S Law, psychiatrist, considered that

Ms Dinh suffers from adjustment disorder “causally related to her shoulder injury and her perception of having been unfairly managed.”

32.     Dr Chen, general practitioner, recorded on 3 August 2006 that Ms Dinh was experiencing worsening stress because of unfair treatment by Australia Post’s insurance company.  When referred to that record Ms Dinh said that at that time she had thoughts of suicide. 

33.     

However, this version of events is directly contradicted elsewhere.  On

31 May 2004, Ms Dinh lodged a claim for compensation for stress arising out of “unfair treatment”. In May and June 2004, Ms Dinh saw Ms Turnbull, a psychologist with Davidson and Trahaire, complaining of headaches, depressed mood, suicidal ideation and reduced concentration due to a change to her shift allocation.

34.     On 10 February 2006, Ms Dinh wrote to Australia Post saying:

“Upon receiving this rejection letter [concerning her claim for her left shoulder] I have been under stressed (sic), and have been receiving counselling to overcome with the stress this letter have caused me.” (T-documents p. 104)

35.     A certificate of Dr Tien Nguyen dated 15 August 2006 stated Ms Dinh had depression as a result of “discrimination at work”.

36.     When these matters were put to Ms Dinh, she acknowledged them but nevertheless insisted that prior to 26 July 2006 she was happy at work. It is difficult to understand this insistence in the face of significant evidence to the contrary.

37.     We cannot be satisfied that Ms Dinh’s psychiatric complaint was caused or contributed to by her right shoulder injury. Rather, the balance of the evidence is that Ms Dinh’s psychiatric condition was present prior to her right shoulder complaint and was in response to changes in her shift allocation, the rejection of her left shoulder claim and perceived “discrimination at work”.

decision

38.     The decisions under review are affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member, and Dr M E C Thorpe, Member.

Signed: .......................[sgd]......................................................
  Associate: Lloyd Doherty

Dates of Hearing  14 April 2009

18 & 19 November 2009

18 &19 March 2010

Date of Decision  10 September 2010
Solicitor for the Applicant          Self represented
Counsel for the Respondent     Mr Mathew Gollan

Solicitor for the Respondent     Stephen Matthews,
  Australian Postal Corporation